MERS as a “sham” rebuffed by the Ninth Circuit

15 Dec

From: Charles Cox []
Sent: Thursday, December 15, 2011 2:19 PM
To: Charles Cox
Subject: MERS as a "sham" rebuffed by the Ninth Circuit

MERS as a “sham” rebuffed by the Ninth Circuit

· Morrison & Foerster LLP

· Greg Dresser



· December 6 2011

The Ninth Circuit rejected a putative class action alleging lenders conspired to defraud borrowers through the Mortgage Electronic Registration System (“MERS”)—a private electronic database tracking the transfer of interests in loans. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034 (9th Cir. 2011). In affirming dismissal, the Ninth Circuit held plaintiffs failed to state a claim for any underlying fraud. Their allegations missed key elements: that plaintiffs were misinformed about MERS, reliance, and injury. The Ninth Circuit also held that because the standard deeds of trust disclosed MERS’s role and right to foreclose, plaintiffs had agreed to those terms and were on notice. The Ninth Circuit rejected plaintiffs’ core theory that no entity could foreclose because MERS splits the deed from the note. It held that “the notes and deeds are not irreparably split: the split only renders the mortgage unenforceable if MERS or the trustee, as nominal holders of the deeds, are not agents of the lenders.”

4 Responses to “MERS as a “sham” rebuffed by the Ninth Circuit”

  1. atila at 3:18 pm #

    bad news

  2. myles at 7:39 pm #

    The attorneys should have taken it to an enbanc 9th circuit, to the entire 9th circuit. This was too important to allow a panel, really 2 out of 3, so really only 2 biased judges, if you check their backgrounds, take over this ruling.
    I actually emailed the counsel for the parties and tried to encourage them to fight on.

    The attorneys may have lost with the u.s. supreme court.

    They would have won, i’ll bet, with a diversity of judges, mostly from California, of the entire 9th circuit. They should have done it pro bono, realizing that such a win in an enbanc 9th would have been publicity that they could take to the bank.

    Such short sightedness.

  3. David Felland at 6:45 pm #

    :55 PM

    Dec 17, 2011

    Dear Peter

    Just when you produced a winning Minnesota case. It looks like your regular source for anti MERS comes up with the Minnesota Pro MERS law.
    Questions.. If the Minnesota pro MERS law is so solid on this topic, how did the Anti MERS case which you came up with a couple of days ago win.
    He must have covered the MERS LAW in his brief. One way would be to serve the Attorney General after pleading the law was unconstitutional. If this was done, then the recent case should not have come out the way it did. It is a question which prudent students of this matter are concerned with. Are you beginning to see the need to search out this information? In Minnesota cases?

    Comment No 2.
    Yesterday I did a study of MLE Minnesota Continuing Legal Education Seminars. In a attempt to find anything on how to defeat a(ny) mortgage foreclosure. Very interesting. Place is located on first flor of the Courts International Building x of 280 &94. NW corner. The way it works is about like this. Lawyers and others put together one day seminars suggested by anyone. Then lawyers conform with the stae law and take 45 hours of CLE each three years. Cost about $240 per day.

    The staff of the basic courses are regulars. They stick at it for years. There is one course called Lien foreclosures. This course covers all sos offc including mortgage fc. Each so often it is updated. There are not numerous such courses. Only the one. Point is. In the book which is sold as part of the course and then given to all of the law libraries. There is not a single word about how to defend a foreclosure. There are general references to the fact this may occur and suggestions of what may go wrong. But the entire matter is as if the banks sent some lawyers to see to it that all lawyers who study the topic learn how to fc. Learning as little as possible about how to defend fc.

    Had a nice chat with Holly, the nice lady who sort of runs at least the PR. She appeared to be 100% ignorant on any/all aspects of MERS. I asked if they were still giving the one called: Lying Cheating and Stealing. Answer Yes. I suggested a new one titled: Nominations are now open. Local Chapter. Bernard Madoff Society.

    I am now going to forward the second case to you. Without comment.

    All of which is to again urge you to get real about providing real assistance to the formulation of the Minnesota Anti MERS Sample case book.

    Very truly

    /s/ David Felland
    David Felland


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