Clerks Revenge

7/29/2019 Clerks Revenge

1/8Electronic copy available at: http://ssrn.com/abstract=2227789

Volume 32 Number 1 January 2013 Banking & Financial Services Policy Report 17

L ike a movie that refuses to end, MortgageElectronic Registration Systems, Inc. (MERS)has continued to generate controversy and litiga-

tion long after its beg inning. This previously obscure

mortgage registry tracks the ownership of over half

of the nations home loans and has become notorious

since the housing crisis began.1 Homeowners began

the legal assault on MERS by challenging its right to

initiate foreclosure proceedings. Now, MERS faces

another wave of legal challenges: county clerks andprivate qui tam actions assert that MERS has cheated

county recorders out of millions of dollars in record-

ing fees. This latest chapter in the tortuous chronicles

of MERS represents yet another opportunity for

homeowners, litigators, and legislators to consider

the direction of recording practices nationwide.

Before MERS was created, transfers in the ownership

of home loans had to be recorded at county registrars,

clerks, and recorders offices. This process was costly in

terms of fees, wasted time, and accuracy. To bypass this

process, the nations largest lenders and the governmentsponsored entities created MERSan electronic registry

designed to track transfers in ownership of home loans.

MERS is now listed on millions of home loans as

either the mortgagee or as the beneficiary on deeds of

trust. At the same time, mortgage language lists MERS

interest as existing solely as nominee for the true or

beneficial owner of the loan. In practical terms, this

means that MERS remains listed as the mortgagee in

the public records regardless of whether the underlying

interest in the amount owed has been transferred.

MERS continues to act as nominee for subsequent

owners of the home loan, as long as those transferees

are members of MERS, and any such transfers are

tracked in MERS private computerized database. The

end result is that MERS eliminated the necessity for

lenders to create and record assignments of mortage

which would have previously been generated upon sale

of a home loan. Instead, assignments are only produced

when the loan is transferred to a non-MERS member

bank or investor, or when an assignment is necessary to

initiate foreclosure proceedings.

The time and cost savings were partly designed toease the process of securitizing home loans. Ordinarily

the securitization process would have required severa

assignments to be produced and recorded. Lenders

have now eliminated the resource drain those assign-

ments represented. For its part, MERS generates a fee

each time a lender registers a loan on its system, and

claims that the cost savings from not having to record

each assignment results in savings for homeowners. Ye

once the housing collapse began, MERS was forced to

confront legal challenges.

Homeowner Challenges inForeclosure Litigation

MERS first gained infamy on the national stage

when foreclosure numbers exploded during the hous-

ing crisis. Many foreclosures were initiated in the

name of MERS, resulting in puzzled homeowners and

attorneys asking basic questions about the company

and mounting legal challenges. Homeowners and their

attorneys propounded a wide variety of legal argument

challenging MERS right to foreclose.

Ultimately, most jurisdictions have recognized

MERS ability to foreclose on behalf of the beneficial

owner of a loan.2 This is presumably due to the var-

ied language used by MERS in mortgages and deeds

of trust. In courts of various jurisdictions, MERS ha

successfully argued that it is either mortgagee, ben-

eficiary, nominee, agent, holder, or even the owner of

home loans. Thus, most homeowners advocates fight-

ing MERS-initiated foreclosures have played a game o

legal whack-a-mole, whereby an argument that, say

Dustin A. Zacks is a founding member of King, Nieves & Zacks in

West Palm Beach, where his practice concentrates on real estate

litigation.

Revenge of the Clerks: MERS Confronts CountyClerk and Qui TamLawsuits

By Dustin A. Zacks


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18 Banking & Financial Services Policy Report Volume 32 Number 1 January 2013

MERS cannot foreclose because it is not a true mort-

gagee, is disregarded because a court finds that MERS

can represent the true owner as an agent.

Furthermore, even when homeowners have mountedsuccessful challenges to MERS-intitiated foreclosures,

banks and MERS simply changed tactics. After los-

ing some notable cases in 2011, for example, MERS

announced that it will cease foreclosing in its own

name.3 Henceforth, homeowners facing foreclosure

will have to find other ways to challenge MERS-related

foreclosures, such as questioning the validity of MERS

assignments.

These challenges in the midst of foreclosure liti-

gation are not going away. The long delay home

foreclosures face in resource-strapped jurisdictionsmeans that MERS may have innumerable foreclosures

in its own name still pending in courts around the

country. Furthermore, MERS continues to appear on

documents, such as assignments, that are routinely sub-

mitted as evidence in foreclosure litigation, meaning

that MERS will continue to face questions about its

role in evicting homeowners. Given that many home-

owners and judges are still relatively uninformed about

MERS, it behooves litigators to avail themselves of

both sides of the legal arguments surrounding MERS

in foreclosures.

The New Challenge to MERS:County Clerk Lawsuits

Just when the controversy regarding MERS largely

seemed to recede, county clerks have dragged it back

onto the national stage. Now, rather than facing its most

important hurdles in foreclosure litigation, it appears

that the most imminent legal threat to MERS is the

spate of lawsuits filed by county clerks. All across the

nation, county clerks and recorders are suing MERS

for large sums, sometimes seeking class-action status,

to seek money the clerks claim has been wrongfully

withheld.

At their core, these lawsuits reflect a most basic,

even elemental, conflict between MERS and county

recorders: on one hand, MERS was created specifically

to avoid having to pay clerks fees for assignments, and

MERS does not believe it is required to record any

assignment between MERS members. On the other

hand, clerks assert that MERS has effectively usurped

the public recorders offices and is required to record

and pay forall the assignments it avoided recording

in past years. Each of the arguments against MERS in

these clerks lawsuits will be examined in turn.

Claim One: State Laws Required AllAssignments to be Recorded

Common to most clerk lawsuits is their assertion

that all changes in beneficial ownership of home loans

are required to be recorded in the public records.4 This

point necessitates some explanation. As briefly men-

tioned above, MERS was expressly created to avoid

recording every single change in ownership. Thus,

before the onset of MERS, a sale of a mortgage loan

would result in production of an assignment of mort-

gage that would typically need to be recorded for a fee.

In a mortgage listing MERS as the mortgagee (deemeda MERS Originated Mortgage, or a MOM), by con-

trast, MERS will remain listed in the public records

no matter how many times the underlying interest in

the loan is transferred. Thus, in the case of a mortgage-

backed securitization, the fact that the actual owner of

the right to enforce the loan might have changed hands

several times as part of the process of pooling loans

together is irrelevant for recording purposes. In MOM

loans, MERS is listed as nominee to the lender and its

successors, so MERS continues to act at the behest of

whoever the owner might be, and the public records

remain unchanged.

Clerks and recorders assert that MERS violated state

laws that require recording of all such transfers, and

that failure to record resulted in a decrease in revenue

for their offices. For example, the Dallas County Texas

Complaint cites a Texas statute stating that [t]o release,

transfer, assign, or take another action relating to an

instrument that is filed, registered, or recorded in the

office of the county clerk, a person must file, register, or

record another instrument relating to the action in the

same manner as the original instrument was required

to be filed, registered, or recorded.5 Similar statutes are

cited by other clerks around the nation.6 By failing to

record as required by statute, the clerks argue, MERS

deprived the clerks of revenue lawfully due.

MERS for its part, argues that clerks are not due

money for assignments that were rendered superflu-

ous by the creation of the MERS system.7 In plain

English, MERS will usually argue that the clerks do not


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deserve money for assignments unrecorded. As will be

explained, infra, courts have not been especially recep-

tive to clerks arguments, even in the face of statutory

language which appears to mandate recording transfers

of interest.

Claim Two: MERS Uses DeceptiveLanguage to Avoid Recording

Clerks have also alleged that MERS uses deceptive

terms in its mortgage documents for the purpose of

avoiding recording requirements and fees. This point

can take several different angles: in the Dallas County,

Texas lawsuit, for example, the clerk argued that MERS

falsely described itself as a beneficiary on deeds of trust

in order to get the clerk to accept those documents for

recording.8 This can result in an asserted cause of action

for misrepresentation, whether fraudulent or negligent.

The argument that MERS cannot be a mortgagee

while simultaneously describing itself as merely a

nominee has already been discussed extensively. The

clerks who assert this idea largely parrot the arguments

of Professor Christopher Peterson, who cites to vari-

ous anti-MERS decisions holding that MERS is not a

traditional mortgagee or beneficiary.9 Peterson and the

clerks argue that it is improper for MERS to list itself as

a mortgagee because [i]t causes county recorders that

maintain grantor-grantee indexes to list MERS in the

chain of title for the land and creates a false lead inthe true chain of title defeating an essential purpose of

recording mortgages and deeds of trust.10

In the context of foreclosure litigation, such argu-

ments have not fared well in the majority of cases. As

I have discussed elsewhere, many courts have ruled

that MERS has standing to bring foreclosure actions,

regardless of whether it is a true or traditional mort-

gagee.11 MERS can be deemed an agent, a nominee, or

any number of other such statuses giving it standing to

bring foreclosure. In clerks lawsuits, however, it was not

so clear from the outset that this type of attack against

MERS would fail. For the time being, the argument has

not resonated with courts in the arena of clerks lawsuits

either, as will be examined, infra.

Essentially, this argument is another pathway that

clerks travel upon to arr ive at the same place as in their

initial claim: MERS engaged in wrongful conduct

resulting in economic harm to clerks. In a fraudulent or

negligent misrepresentation through falsely stating it is

the mortgagee, MERS undertakes its wrongful conduct

by commission. In failure to record claims, its alleged

harm is perpetrated through omission. In either case

the wrongs result in fewer recordings and less revenuegenerated for clerks.

Claims Three, Four and Five: UnjustEnrichment, MERS is Evil, and OtherSuch Arguments

As a corollary to the first two claims typically made

by clerks in lawsuits against MERS, such lawsuits fre-

quently contain a claim for unjust enrichment.12 These

claims are natural extensions of the first two claims

above. The core idea remains the same: MERS allegedly

diverts money from county clerks in an improper man-

ner by failing to record assignments.

Aside from the most common claims and the unjust

enrichment theory discussed above, clerks also have

attacked MERS on various other grounds. One tactic

taken by the Dallas County Clerks lawsuit, is to paint a

picture of MERS as a primary cause of the economic

bubble and collapse.13This line of argument asserts that

but for MERS easing of the assignment process, secu-

ritization of residential mortgages would never have

reached the heights achieved during the housing bub-

ble. Thus, such an argument essentially accuses MERS

of causing the current economic crisis. Although it isbeyond the scope of this Article to assess the extent of

the validity of this claim, it is undisputed that MERS

easing of the assignment process did facilitate the secu-

ritization of home mortgage loans. It is not clear that

any clerks are attempting to fashion this argument into

a legal claim for relief, but it is nonetheless noteworthy

for its attempt to produce judicial skepticism towards

the MERS system.

Another anti-MERS argument produced in the

context of these newly burgeoning clerks lawsuits is

that MERS has effectively usurped the public function

of clerks and has created a private recording system

Floridas Duval County Clerk propounded this argu-

ment in its lawsuit against MERS by including a novel

count for a writ ofquo warranto, which sought to pre-

vent MERS from acting as a private recording system

and to force MERS to record every future transfer

in the public records.14 These claims were echoed by

the Dallas County Clerk, who claimed that MERS


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collapsed the public recording system in the U.S.15

In some respects, it is clear that MERS does seek to

replace the need to record certain transactions. Some

of the more virulent MERS critics, like Peterson, have

previously raised this point. However, as will be seen,infra, the assertion that MERS unlawfully creates a pri-

vate system, or that MERS produces unfortunate public

policy externalities rarely holds weight with courts.

Instead, courts generally assume that MERS and its

principals failure to record assignments does not violate

a statutory duty to record.

Qui Tam ActionsThe claims brought forth by county clerks, and the

potential recoveries clerks lawsuits sought, have also

led to a spate ofqui tam actions. One private actor in

particular, Barrett Bates, filed several lawsuits in differ-ent states, suing MERS on the basis of alleged violations

of those states false claims acts.16 These false claims acts

generally prohibit making false statements or recording

false documents to avoid an obligation to pay money

to the government.17 Here, Bates consistently claimed

in many jurisdictions that MERS falsely claimed to be

the mortgagee or beneficiary on deeds of trust in order

to avoid having to record assignments and therefore pay

document recording fees.18

In this respect, his claims were not altogether unique

when compared with the claims made by clerks. Whatis distinct about these qui tam actions is the additional

threshold requirements placed on a plaintiff in order

to bring a claim. As will be discussed, infra, these addi-

tional requirements resulted in dismissal of Bates qui

tam actions, although these dismissals do not necessarily

mean he or other private litigants will stop filing law-

suits against MERS.

The Courts' ResponseOverall, the revenge of the clerks has been ham-

pered by most courts failure to allow the lawsuits to

progress past MERS motions to dismiss. First, regarding

the primary claim that state laws require assignments

to be recorded, most courts have found that their

states laws do not, in fact, require all assignments to be

recorded. This spelled the death knell for lawsuits in

Iowa, Texas, Florida, and Arkansas. The Court adjudi-

cating the Plymouth County, Iowa Clerks lawsuit, for

example, noted that Iowa is a lien theory state, mean-

ing that an assignment of mortgage does not transfer

title.19 Thus, given that Iowa law does not require

assignments to be recorded, the rest of the clerks law-

suit failed.20 Other courts, such as the court ruling on

the Hot Springs, Arkansas Clerks case, have found that

although it may be unwise not to record, recording issimply not mandatory under certain states laws.21 One

singular exception to this trend is the order denying

MERS motion to dismiss in the Montgomery County,

PA lawsuit, which held that the Pennsylvania statute

was unambiguously clear in requiring assignments to

be recorded.22

Where courts have found a duty to record, they

have generally ruled that the duty does not give a cause

of action to the county clerk, but rather to property

owners. The Christian County, Kentucky Clerks law-

suit was felled by this reasoning. The court there heldthat the legislature did not intend that county clerks

be benefited by the requirement to record documents

affecting title. Lack of recording fees for the clerk was

not the reason the legislature enacted the requirement;

rather, the statute was held to be intended to benefit

subsequent property owners, creditors, and homeown-

ers.23 Therefore, the clerk could not sue on the basis of

such a requirement.

Next, courts have usually rejected causes of action

based on the allegation that MERS is lying when it

states that it is a beneficiary or a mortgagee. The domi-nant theory behind this failure could be based upon

the existing standing jurisprudence discussing MERS

various statuses in foreclosure litigation. However, what

is apparently more persuasive to courts is the fact that,

even if MERS did lie and falsely claim it was a mort-

gagee or beneficiary, clerks would still have to record

those documents. The Duval County Clerks allegation

of untruthful recording failed on this very point: the

court held that the recording was merely a ministe-

rial act unaffected by some general duty to ensure the

veracity of the public records.24

Similarly, just as in the case of a duty to record assign-

ments, the courts have held that even if MERS did owe

a duty to record wholly truthful documents, that duty

does not provide a cause of action to clerks.25 Again, no

clerk has yet shown that a legislature intended clerks to

be benefited by recording statutes or to gain a cause of

action stemming from the publics duty not to record

false documents.26


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Finally, as to the general assertions that MERS has

resulted in the downfall of public recording or that

MERS helped to cause the housing bubble, courts seem

relatively unaffected by such inflammatory language.

This is unsurprising to those who have inspected thecurrent state of the law in MERS-related foreclosures.

I have noted in previous research that courts seem

inclined to discount homeowners anti-MERS argu-

ments in the face of a borrowers default. Similarly, in

the context of clerks lawsuits, courts seem apathetic

towards the overall effects MERS has had on public

recording in the United States.

Simply put, courts have not been persuaded to rule

for clerks based upon the fact that MERS may pro-

duce some negative externalities. The Duval County

Clerks lawsuit seems particularly illustrative of thispoint: the ruling judge seemed to regard the attacks

upon MERS manner of business as academic, almost

gleefully noting that the countys claims were sig-

nificantly drawn from Professor Petersons research and

from one recently overruled anti-MERS decision.27

This is yet another arena of MERS litigation in which

the most virulent MERS opponents do not seem to be

persuading the majority. Rather, courts seem to view

the development of MERS not as a sneaky conspiracy

on behalf of the nations largest banks, but rather a new

development attempting to deal with modern market

realities.

Qui Tam actions have met a similar fate as clerks

lawsuits, but for different reasons. The Bates com-

plaints arose from reverse false claims statutes, which

entail more standing hurdles than an average clerks

lawsuit. Not only do qui tam actions require the pri-

vate actor bringing suit to prove their substantive

allegations, but these suits also evince whistleblower

threshold issues.

To bring such a suit, a private actor like Bates

must show that he was responsible for discovering the

information leading to the claim or that he had direct

and independent knowledge of the information, and

that he delivered that information to the state actor

prior to bringing suit. Bates has consistently failed

to meet all of these prongs.28 Perhaps most notably,

Bates admits that he only became aware of MERS

in 2009.29 Accordingly, courts have consistently held

that he was not an original source of MERS alleged

malfeasance. Furthermore, courts have noted that Bates

claims mimicat times nearly identicallyclaims or

assertions put forth in public accounts of anti-MERS

arguments.30 To date, Bates has failed in his qui tam

quests in several states.

ConclusionSo of what import is this most recent spate of MERS-

related litigation, given that the vast majority of suits have

been dismissed? First, although this Article has taken a

relatively skeptical and pessimistic view of these anti-

MERS lawsuits, banks and their advocates must remain

wary of these seemingly unending matters. Just as the

tobacco lawsuits were initially met with skepticism and

ridicule, one large win was all it took to turn regular

routs into an industry-changing victory. Here, one ver-

dict in favor of a clerk in a class-action suit could resultin a ruling that MERS must go back and, for example

record innumerable assignments or pay millions of dol-

lars in avoided recording fees. This, in turn, could result

in a new appraisal of the viability of MERS manner of

business.

Similarly, one pro-clerk verdict could spur even

more lawsuits. This is all the more reason for MERS

and its bank co-defendants to treat these lawsuits as life

or death situations. Even suits that survive motions to

dismiss could give courage to more clerks to file addi-

tional suits. Thus, even though MERS has an impressivestring of victories in these cases, each defeat, no matter

how technical or procedural, has the potential to cost

MERS and its member institutions ever more in lega

costs and scrutiny.

Another observation based upon these recent clerk

lawsuits is the unfortunate tendency of state actors to

take underwhelming, tardy, or self-serving action when

faced with questionable lender conduct. In the contex

of the robo-signing scandal, legislators and state attorney

generals only began investigating faulty lender practice

once the popular press had exposed such conduct years

after the first robo-signing deposition had become pub-

lic record. Then, when lenders were forced to pay for

their mistakes, some state legislatures diverted funds to

plug budgetary holes rather than to assist homeowners

Likewise, when confronted with news of questionable

attorney conduct, the government sponsored entitie

continued to refer cases to firms under investigation for

misconduct.


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The analogy to clerks lawsuits is clear: MERS began

operating and recording mortgages and deeds of trust

around the country long before the housing bubble

began to grow. For years and years, MERS increased

the percentage of loans for which it appeared as mort-gagee on the public records. Yet, prior to popular press

accounts and academic discussions of MERS, not a

single county clerk around the country found it neces-

sary to investigate what this new amorphous company

represented. Only when a potential for recovering vast

sums of money became evident did clerks begin to

become so concerned with the integrity of the public

records.

If MERS represents the evil clerks lawsuits often

assert that it does, then those very same clerks bear

an obligation to explain to the public why they didnot care to investigate MERS five or ten years ago.

Given clerks utter failure to account for their lack of

initiative during the rise of MERS and that they only

have fought MERS now that money is potentially

recoverable, clerks claims of being concerned with the

protection of the public ring incredibly hollow.

Next, amid this discussion of clerks challenges to

MERS, one can consider the implications for MERS

in the future separate and distinct from such clerks

lawsuits. As this Article has noted, MERS has been

a lightning rod for litigation and criticism since thehousing crisis began. Even now, MERS faces unfavor-

able decisions from time to time in the foreclosure

context.31 Just as anti-MERS rhetoric grew after the

collapse of the housing market and the increase in

numbers of foreclosures and spurred these clerks suits,

these suits may yet inspire another wave of litiga-

tion involving MERS. What form this wave may take,

whether in qui tam fashion or otherwise, remains to be

seen. Yet what has remained constant since the collapse

of the bubble is MERS involvement in a significant

amount of litigation and controversy. As seen by the

emergence of these clerks lawsuits, this trend is unlikely

to cease in the future.

Finally, any discussion of clerks MERS lawsuits

would be lacking without mentioning one of the great

ironies of the mere existence of such suits. Clerks are

suing MERS for its failure to record assignments and

its failure to utilize public recorders. Yet, county clerks

and recorders own ineptness is, in large part, the very

reason for MERS existence. Bankers created MERS

out of a need to avoid the costly, inefficient, and often

error-prone manual recording services given by clerks.

Now, clerks essentially are suing banks for the audacity

of desiring to avoid such a drag on the market. If clerkshad modernized and provided the speed and quality of

service needed by the private marketplace, then the pri-

vate sector would have had no cause to create MERS

in the first place.

Furthermore, one can reasonably take either side of

arguments regarding the legal propriety of MERS fail-

ure to record every assignment when a transfer in the

beneficial ownership of loans takes place. Likewise, one

can make persuasive arguments and counterarguments

regarding the effects MERS has had on transparency of

public records. What is essentially undisputed, however,is that MERS failure to record assignments resulted in

less work for clerks. Clerks are therefore essentially ask-

ing to recoup money for services not performed. After

considering their lack of action during the ascendancy

of MERS, their showing initiative only once money

appeared to be recoverable, and their attempt to recoup

money for services not rendered, clerks assertions of

righteous fury on behalf of an unwitting public, there-

fore, are simply not very convincing.

One quixotic counterargument to this authors

assertion of irony and insincerity noted above wasevoked in the Dallas County, Texas Clerks lawsuit. The

complaint referenced a clerks letter to Iowa Attorney

General Tom Miller, which rejected MERS claims of

saving work for clerks by eliminating recording large

numbers of assignments.32 The quoted clerk exclaims,

This is help we did not ask for, nor was it help that we

needed. But in the very same protest, the clerk admits

that 57% of clerks do not have e-recording accessible

to the public.33

Clerks may not have asked for MERS help in

reducing the number of recorded assignments, but

they certainly spurred it by their failure to modern-

ize to meet the needs of the modern marketplace. In a

circular piece of logic, the Duval County Clerk claims

that it was MERS very failure to pay such recording

fees which resulted in the lack of modernization.34This

claim is to a certain degree absurd. It appears from the

history of MERS that the converse is true: despite lend-

ers paying fees for interim assignments for years, clerks


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still did not produce a majority of jurisdictions that

could e-record cheaply and efficiently. This apparently

spurred the need to circumvent the system. In other

words, failures of the system produced MERS; MERS

did not create the failures of the system. While one cancertainly argue, as I and others have, that MERS does

obscure the information-bearing capacity of the public

records, the fact that lenders thought such a creation

was so advisable is a reflection on the antiquated proce-

dures of clerks, not on banks sinister intent to destroy

the public records of the country.

As the law stands now, therefore, even MERS detrac-

tors have to recognize the impressive ascendancy and

resiliency of the MERS registry. Despite arousing pop-

ular controversy and countless lawsuits, MERS has by

and large weathered most of the storm surrounding itsmanner of business. As this Article has examined, clerks

lawsuits and qui tam actions appear to be an expensive

nuisance to MERS and to its member institutions. Such

lawsuits do not, however, appear to be a final dagger for

those who wish to see MERS destroyed. On the other

hand, just as anti-MERS decisions in foreclosure can

have nationwide repercussions, one victory for a clerk

or a qui tam litigant could generate significant losses

for MERS and its members. As with all MERS-related

litigation, the settled legal result has yet to be realized.

Notes

1. For a more detailed explanation of the development of MERS

discussed in the introduction, see Dustin A. Zacks, Standing

in Our Own Sunshine:Reconsidering Transparency, Accuracy, and

Accuracy in Foreclosures, 29 Quinnipiac L. Rev. 551 (2011).

2. A more elaborate examination of foreclosure-related MERS

litigation can be found in Zacks, supra note 1, at 566-584.

3. Dustin A. Zacks, MERS is Dead: Long Live MERS, 44 Conn. L.

Rev. CONNtemplations 62 (2012).

4. See e.g. Compl. 134, Dallas County, TX v. MERSCorp, Inc., Case

No. 3:11-cv-02733-O (N.D. Tex. Oct. 31, 2011)(Defendants

violated section 192.007 of Texas Local Government Code by

failing to record all releases, transfers, assignments, and other

actions relating to the deeds of trust in which they, separately or

jointly, identified MERS as the beneficiary,).

5. Compl. 133, Dallas County, TX v. MERSCorp, Inc., Case No.

3:11-cv-02733-O (N.D. Tex Oct. 31, 2011).

6. Order, Mayme Brown v. Mortgage Electronic Registration System,

Inc., Case No. 6:11-cv-06070-SOH (W.D. Ark. Sep. 17, 2012),

at 3 (noting that the clerk alleged a duty to record every

mortgage transfer.).

7. Order, District of Columbia ex. rel. Barrett Bates, 2010 CA 002993

B (Super. Ct. D.C. May 7, 2012), at 18-20 (noting the many

instances in which MERS has touted its cost savings to lender

by eliminating the need to record assignments).

8. Compl. 105-6, in Dallas County, TX v. MERSCorp, Inc., Case

No. 3:11-cv-02733-O (N.D. Tex. Oct. 31, 2011).

9. Christopher Peterson, Two Faces: Demystifying the Mortgage

Electronic Registration Systems Land Title Theory, 53 William &

Mary L. Rev. 111 (2011).

10. Christopher Peterson, Two Faces: Demystifying the Mortgage

Electronic Registration Systems Land Title Theory, 53 William &

Mary L. Rev. 111, 143-44 (2011).

11. Dustin A. Zacks, Standing in Our Own Sunshine: Reconsidering

Transparency, Accuracy, and Accuracy in Foreclosures

29 Quinnipiac L. Rev. 551 (2011).

12. See e.g. Compl. 60-66, Fuller v. Mortgage Electronic Registration

Systems, Inc., 16-2011-CA-008974 (Fla. 4th Cir. Oct. 31, 2011)

13. Compl. 25, Dallas County, TX v. MERSCorp, Inc., Case No3:11-cv-02733-O (N.D. Tex. Oct. 31, 2011).

14. Compl. 22-23, Fuller v. Mortgage Electronic Registration Systems

Inc., 16-2011-CA-008974 (Fla. 4th Cir. Oct. 31, 2011).

15. Compl. 26, Dallas County, TX v. MERSCorp, Inc., Case No

3:11-cv-02733-O (N.D. Tex. Oct. 31, 2011).

16. See e.g. District of Columbia ex. rel. Barrett Bates, 2010 CA 002993

B (Super. Ct. D.C.).


B at 8 (Super. Ct. D.C. May 7, 2012).


B at 3 (Super. Ct. D.C. May 7, 2012)(Mr. Bates states that he

realized that the naming of MERS as mortgagee of record or

beneficiary as nominee for the lender allegedly constituted afalse statement, and that the recordation of such a documen

constituted fraud.).

19. Memorandum Opinion and Order, Plymouth County, Iowa v

MERSCORP, Inc., Case No. C 12-4022-MWB at 15-16 (N.D

Iowa Aug. 21, 2012).

20. Memorandum Opinion and Order, Plymouth County, Iowa v

MERSCORP, Inc., Case No. C 12-4022-MWB at 14-15 (N.D

Iowa Aug. 21, 2012).

21. Order, Mayme Brown v. Mortgage Electronic Registration System

Inc., Case No. 6:11-cv-06070-SOH at 5-6 (W.D. Ark. Sep. 17

2012).

22. Memorandum and Order, Montgomery County, PA Recorder of

Deeds v. MERSCORP, Inc., No. 11-cv-6968 (E.D. Pa. Oct. 19

2012) at 12-15.

23. Memorandum Opinion and Order, Christian County Clerk v

Mortgage Electronic Registration Systems, Inc., Case No

5:11CV-00072-M at 8 (W.D. Ky. Feb. 21, 2012).

24. Order, Fuller v. Mortgage Electronic Registration Systems, Inc.

3:11-cv-1153-J-20MCR at 30 (M.D. Fla. June 27, 2012).

25. Order, Mayme Brown v. Mortgage Electronic Registration System

Inc., Case No. 6:11-cv-06070-SOH at 7 (W.D. Ark. Sep. 17

2012).


8/8


26. Again, the one exception to this is the Montgomery County

suit, where the court noted that MERS could not cite to

any rule limiting clerks right to recover fees. Memorandum

and Order, Montgomery County, PA Recorder of Deeds v.

MERSCORP, Inc., No. 11-cv-6968 at 30 (E.D. Pa. Oct. 19,

2012).27. Order, Fuller v. Mortgage Electronic Registration Systems, Inc.,

3:11-cv-1153-J-20MCR at 3, 31 (U.S. M.D. Fla. June 27,

2012).

28. See e.g. Order Granting Each Def.s Dismissal Mot. for Lack

of Subject Matter Jurisdiction, State of California ex rel Barrett

R. Bates v. Mortgage Electronic Registration System, Inc., Case No.

2:10-cv-01429-GDB-CMK at 8 (U.S. E.D. Cal. Mar. 11, 2011)

(Plaintiffs allegation in his First Amended Complaint are sub-

stantially similar to information already in the public domain.

(internal cite omitted)).

29. Order Granting The Defs. Mot. To Dismiss, State of Indiana ex

rel Mortgage Electronic Registration System, Inc., Case No. 49D12-

0911-CT-051734 at 30 (Marion Sup. Ct. June 22, 2012).

30. Order Granting Each Def.s Dismissal Mot. for Lack of Subject

Matter Jurisdiction, State of California ex rel Barrett R. Bates v.

Mortgage Electronic Registration System, Inc., Case No. 2:10-cv-01429-GDB-CMK at 8 (E.D. Cal. Mar. 11, 2011).

31. See e.g. Bain v. Metropolitan Mortgage Group, Inc., Case No.

86206 (Wash. Aug. 16, 2012).


3:11-cv-02733-O (N.D. Tex. Oct. 31, 2011).


3:11-cv-02733-O (N.D. Tex. Oct. 31, 2011).

34. Compl. 24, Fuller v. Mortgage Electronic Registration Systems, Inc.,

16-2011-CA-008974 (Fla. 4th Cir. Oct. 31, 2011).

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