Mortgage Servicer "Has Standing" To Bring Foreclosure Actions, Say Three Courts
The national mortgage servicer Mortgage Electronic Registration Systems, Inc. ("MERS") has recently been determined to "have standing" to bring foreclosure actions on behalf of mortgage lenders by three state appellate courts in two states.
In Florida, the Second District Court of Appeal in Mortgage Electronic Registration Systems, Inc. v. Azize, ___ So. 2d ___; (Fla. App. Ct. 2nd Dist., 2007; Fla. App. LEXIS 2418) ruled that MERS did, in fact, have standing in bringing a foreclosure action on behalf of the actual mortgage holder, thereby reversing a Pinellas Count Circuit Court order ruling to the contrary (in re Mortgage Electronic Registration Systems).
Shortly thereafter, Florida's Third District Court of Appeal decided to follow the decision of its sister court in Mortgage Electronic Registration Systems, Inc. v. Revoredo, 955 So. 2d 33; (Fla. App. Ct., 3rd Dist, 2007), in which it, too, found MERS to have standing to bring a foreclosure action on a mortgage it was servicing for another. The 3rd district decision also reversed the decision of a lower court to the contrary.
Finally, a recent New York case in Mortgage Electronic Registration Systems, Inc. v. Coakley, 2007 NY Slip Op 5478 (NYS App. Div., 2nd Dept., 2007); 2007 N.Y. App. Div. LEXIS 7703, affirmed a lower court ruling holding that MERS had standing to bring a foreclosure action on behalf of another, notwithstanding that MERS was not the true owner of the mortgage.
These decisions specifically dealt with whether a mortgage servicer has the legal right to bring a foreclosure action on a mortgage it services on behalf of another. The decisions in these cases, however, did not relieve either a mortgage servicer or lender of any obligation it may have to actually have and present in court the legally required mortgage documents necessary to proceed with a foreclosure, or any obligation to file an action to reestablish a promissory note, if a mortgage note is claimed to have been lost, stolen, or destroyed.
1 comment:
I think your right. As with all things they won on technicality. If the defendant had stated that reason they felt they weren't able to bring forth the action I think the decision would have been different. I think the issue is whether or not the defendant has to bring forth note and the mortgage in the foreclosure claim to prosecute such an action. Then I beleive a servicer can foreclose. How can they prove they have the right to foreclose on behalf of the original lender if the that note and the mortgage are never brought as evidence to support their claims.
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