Friday, November 25, 2011

MERS- Michigan

The Michigan Supreme Court recently held that MERS, as an "undisputed record holder of a mortgage," has statutory authority to foreclose. (Our prior update regarding the appellate court's opinion in this matter, which the Michigan Supreme Court now reversed, is below.)

A borrower obtained a mortgage loan that provided for rights of foreclosure by the designated Mortgagee, MERS. MERS foreclosed on the property by advertisement, and quitclaimed it to successor lender ("Plaintiff"). The borrower challenged the foreclosure, on the grounds that MERS did not have statutory authority to foreclose under Michigan law.

As you may recall, Michigan law allows a party to foreclose a mortgage by advertisement if, among other things, that party owns an interest in the indebtedness secured by the mortgage. See MCL 600.3204(d)(1).

The lower court rejected the borrower's argument, and borrower appealed.

A Michigan Court of Appeals overruled the lower court's decision, holding that MERS "only held an interest in the property as security for the note, not an interest in the note itself." Accordingly, the Court of Appeals held that MERS did not have authority to foreclose.

The Michigan Supreme Court reversed the Court of Appeals, holding that MERS held an interest in the indebtedness, and therefore had the authority to foreclose.

In so doing, the Court noted that the interest in the indebtedness held by MERS "does not equate to an ownership in the interest in the Note."

Instead, the Court found that "MERS owned a security lien on the properties, the continued existence of which was contingent upon the satisfaction of the indebtedness." Because MERS had an interest in the indebtedness, the Court held that MERS was authorized to foreclose under Michigan law.

The Court further explained that it found no indication that the Michigan Legislature intended to "establish a new legal framework in which an undisputed record holder of a Mortgage, such as MERS, no longer possesses the statutory authority to foreclose." Instead, the Court held that the Legislature's use of the phrase "interest in the indebtedness" includes mortgagees of record, as well as owners and servicers of the debt.