Utah and Florida Law Professor Telling Congress MERS is a "Deceptive ... Shell" Corporation -- The MERS Response
Truth be told, Christopher L. Peterson isn't a professor at the University of Florida School of Law any longer; after teaching law there for a couple of years, he moved on to the law school at the University of Utah in 2008, where he's now Associate Dean for Academic Affairs.
Professor Testifies to His Expert Opinion on MERS in House of Representatives Hearings
Making this return back home wasn't a bad career move: today, Professor Peterson is testifying before Congress as investigative hearings into MERS - and other aspects of Foreclosuregate - continue.
Peterson practices in the area of consumer rights as well as teaching Utah law students on the intricacies of consumer law, after teaching and practicing here in Florida. He's a graduate of Utah Law as well as obtaining his Bachelor of Science Degree in Political Science at the University of Utah in 1997.
Interestingly, he's also got two works-in-progress in the publish-or-perish academic world (according to the Utah Law School website):
The Subprime Mortgage Foreclosure Crisis, Yield Spread Premiums, and Fraud: The Legal Anatomy of a Passive Jurisprudence
We can assume that if either of these works don't have a publisher now, they will very shortly. After all, the author is testifying today before the Judiciary Committee of the United States House of Representatives.
Why? He's got an opinion on the Mortgage Electronic Registration System (MERS) and he's going to give it to Congress for their consideration of the national foreclosure crisis. He's already given it to the St. Petersburg Times (read the full article here), where he posits in sum:
1. MERS is a shell company designed by financial institutions;
2. MERS is analogous to a huge spreadsheet where financial institutions can enter whatever information they choose to input, and similarly omit whatever data they decide to keep back;
3. MERS has done so with impunity;
4. MERS never got permission from a democratically elected legislature to do it (which he assumes would be required, arguendo);
5. MERS goal of simplification fails because it has not allowed for streamlined negotiations during the foreclosure crisis; and
6. MERS is "inherently deceptive;" it's a "foundation of sand."
The MERS Response
Here, as reported in the news media, is the official response from MERS to Professor Peterson's expert opinion, given by MERS' spokeswoman Karmela Lejarde:
It is important to note that there are numerous cases upholding the legal validity of MERS. To date, MERS has received more than 200 court decisions nationwide determining that MERS may hold and/or foreclose mortgage liens. To name just a few, see In re Mortgage Electronic Registration Systems (MERS) Litigation, (D.Ariz., Sept. 30, 2010, MDL Docket No. 09-2119-JAT) dismissing six class action complaints and finding that MERS has the right to foreclose; Cervantes v. Countrywide Home Loans, Inc., et al. 2:09-cv-00517 (D. Az., 2009), holding that MERS is the beneficiary under the deed of trust; Ciardi v. The Lending Company, Inc. et al., 2010 WL 2079735 (D. Ariz.) holding that MERS is the beneficiary with the authority to foreclose; Mortgage Electronic Registration Systems, Inc. v. Azize, (965 So. 2d 151, 153-54 Fla. Dist. Ct. App. 2007), holding MERS can foreclose when it is the holder of the note; Athey v. Mortgage Electronic Registration Systems, Inc., 2010 WL 1634066 (Tex. App. – Beaumont) holding that MERS is the beneficiary of the deed of trust, with the authority to proceed with foreclosure; In re Huggins, 2006 WL 3718179 (Bankr. D. Mass. 2006), holding that MERS was the mortgagee with the authority to foreclose. In the case of Burnett v. Mortgage Electronic Registration Systems, Inc., 09-69 (D. Ut. 2009), the court affirmed that MERS was the beneficiary on the Deed of Trust and authorized to commence foreclosure. Additionally, in Rodeback v. Utah Financial, et al., 09-134 (D. Ut., 2010), the court found that when MERS is the mortgagee as the nominee for the noteholder, the Deed of Trust is valid and enforceable. Numerous other decisions in Utah have followed these cases and rejected challenges brought against MERS.
Additionally, many courts have found that MERS' relationship to the promissory noteholder does not support the suggestion that when the borrower grants MERS the mortgage lien as the mortgagee as the nominee for the promissory note-owner, that MERS somehow runs afoul of longstanding precedent on the inseparability of promissory notes and mortgages. Mortgage law is abundantly clear that a promissory note owner may empower an agent with the authority to hold and enforce a mortgage lien on behalf of the note owner, and that courts should make every effort to recognize this agency relationship. [See Restatement (Third) Property, § 5.4, comment ].
Utah Law Professor Opinion Isn't the Last Word or the Only Perspective. Good.
Good to see that the news media is giving MERS the opportunity to give a response, and it's equally rewarding to read that a substantive effort was made by the MERS representative.
Wonder if she's writing a book, too.