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MERS is Dead: Long Live MERS

Mortgage Electronic Registration Systems, Inc. (MERS) has generated substantial controversy and academic analysis about its ubiquitous appearance in countless mortgage foreclosure actions.  As the ostensible mortgagee under millions of borrowers’ home loans, MERS’s unique relationship with lenders, servicers, and homeowners has resulted in widely disparate judicial treatment across the nation.

Although a seemingly large majority of jurisdictions agree with MERS’s various arguments for its standing to foreclose and assign mortgages, courts in three states have recently shown that MERS remains vulnerable to attack.  This Essay examines these recent anti-MERS decisions in the context of the ongoing debate about MERS’s standing, while highlighting the novel approaches taken by the courts in question.

The Article concludes that these cases reveal that MERS remains vulnerable to a single judicial opinion affecting MERS’s arguments (and, therefore, lenders’ and servicers’ foreclosure processes) throughout any given state.  However, the Essay concludes that the fact that these opinions were deemed newsworthy at all indicates that MERS’s role in mortgage foreclosure litigation is unlikely to be halted or significantly hindered on a national scale.

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