MERS Concerns Extend to Commercial Real Estate

``When we’ve discussed the woes afflicting residential mortgage securitizations, in particular, the deep seated problems arising from the frequent if not widespread failure of the original parties to the deal to take the steps stipulated in their own agreements needed to convey the notes (the borrower’s promissory note) to the securitization legal vehicle, a trust. Although we’ve touched on the problems posed by MERS, if you’ve screwed up on conveying the note in a RMBS, you are very badly stuck. MERS related problems are rounding error. But that isn’t to minimize the problems MERS has created separately, particularly with the integrity of local records, and the way MERS has been abused in court proceedings. Specifically, and bizarrely, foreclosures are often made in the name of MERS. In 45 states, the note is the critical document, and the lien, which is what is registered at MERS, has no independent status. It is the noteholder that has to foreclose, not a mere computer registry for the mortgage. Increasingly, state courts are taking a very dim view of MERS foreclosures. Housing Wire points out that MERS has also been a party foreclosing in some commercial real estate transactions, again presumably in securitized deals.''