2011-09-09blogspot.com

Claims against MERS for misrepresentation have been dealt a serious and potentially fatal blow. The fact that the Court identified in the Deed of Trust that MERS had been fully disclosed, and the borrower signed the Deed of Trust should prove to eliminate such arguments.

If one looks close at the ruling, he will notice that the attorneys have failed to "present a claim" or have failed to "allege" certain issues. This is something I have noticed with almost all lawsuits. Attorneys fail to state claims, or do so ambiguously, especially in fraud allegations. Such claims require a heightened level of pleading.

At this point, homeowner attorneys have been severely restricted in what they can argue. They must now rely upon trying to prove no Agency relationship between the lender and MERS exists, or that the Certifying Officer was not legitimate, primarily through forgery, or through lack of a Corporate Resolution.

Note that fraud/misrepresentation is not necessarily the main issue about MERS (in my opinion, it is not). The main issue should be regarding the right to foreclose, when local and standard property transfer conventions are not followed. This is all the more important in a situation where everyone is playing it fast and loose with such things, resulting in people being unjustly steamrolled in foreclosures (as well as the loan mod process).


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