MERS Litigation: Justice for Illinois Counties Illinois Association of County Clerks & Recorders Annual Meeting and Conference Peoria, Illinois September

MERS Litigation:Justice for Illinois Counties

Illinois Association of County Clerks & Recorders

Annual Meeting and Conference

Peoria, IllinoisSeptember 10, 2012

Chris EllisBolen Robinson & Ellis, LLPDecatur, Illinois(217) [email protected]

Adam J. LevittWolf Haldenstein Adler Freeman & Herz LLCChicago, Illinois(312) [email protected]

I. Background of the Mortgage Electronic Registration System (“MERS”)

A. History of MERS MERSCORP is a privately held stock company formed

in 1995 by several of the most powerful constituents in the U.S. mortgage lending industry, including Fannie Mae and Freddie Mac.

In the late 1990s, securitizations of mortgage loans exponentially expanded because of the outsize profits they generated. Banks and other financial organizations securitized residential mortgage loans by selling mortgage loans to intermediaries – usually investment banks – which, through yet other intermediaries, pooled the mortgages into trusts that issued and sold mortgage-backed securities (“MBS”) to investors.

Each of the intermediaries along the way profited handsomely by collecting fees and other charges.

MERS was created for the express purpose of avoiding the payment of county recording fees. Indeed, MERS’ corporate slogan is “Process Loans, Not Paperwork.”

To create even greater profits through the securitization process, leaders in the mortgage industry desired to establish a private, alternative recording system, to avoid registering each assignment of a mortgage with local county recorders, and paying the attendant fee.

In 1998, MERSCORP, MERS, and the MERS® System, the national electronic registry, were created as a result.

A. History of MERS, cont.

MERSCORP’s current shareholders* include: Bank of America; Chase Home Mortgage Corporation of the Southeast; CitiMortgage CoreLogic; Everhome Mortgage Company; Fannie Mae; Freddie Mac; First American Title Insurance Corporation; GMAC Residential Funding Corporation; Guaranty Bank; HSBC Finance Corporation; SunTrust Mortgage, Inc.; Wells Fargo; and WMC Mortgage Corporation.

*See MERS Shareholders, available at http://www.mersinc.org/about-us/shareholders (last visited on July 10, 2012).


Members of the MERS Board of Directors include:

Joe Jackson, Senior Vice President of Wells Fargo Brian McCrackin, Director of Finance at CitiMortgage;

and Lawrence P. Washington, Managing Director and

Servicing Portfolio Strategy Executive at Bank of America


Most of the large banks and mortgage servicers in the United States are MERS Members, and use the MERS System – not county land records – to “record” the transfer of mortgages throughout the securitization process.

A “MERS Member” is “an organization or natural person who has signed a Membership Agreement and is not more than 60 days past due as to the payment of any fees due and owing to MERS.”


Prior to the creation of MERS, sellers of mortgages generally were required to provide the original assignments of the mortgage with proof of recording. The buyers would then record the assignments to ensure they had priority and to protect their security interests from subsequent purchasers.

B. How MERS Works

When a lender issues a mortgage, the lender names MERS, which has no economic interest in the mortgage, as “the nominee for the lender and the lender’s successors and assigns” and the “beneficiary” of the security instrument. MERS is the mortgagee of record on the mortgage document, and is listed the as grantee when the mortgage is recorded.

By virtue of the initial recordation, MERS has a valid first-lien security interest in the mortgage.

Once MERS is listed as the mortgagee of record in the official county records, the lender (who must be a MERS member) registers the mortgage on the MERS® System.

When the lender wants to assign the mortgage, instead of recording the assignment with the county register of deeds in order to ensure priority against subsequent purchasers, it “transfers” the note to another MERS member and MERS remains the beneficiary of record for both the lender and the transferee, and the holder of the security interest.

The MERS® System purportedly tracks that and subsequent transfers.

In short, no intermediate transfers of MERS mortgages are recorded because the MERS® System allows MERS members to claim that the transfers are not assignments and therefore need not be recorded.

B. How MERS Works, cont.

By virtue of this scheme, MERS and its members cheat county recorders of fees, which, but for MERS, they would have paid to record assignments in order to inoculate the security interests against subsequent good faith purchasers, mortgagees, or creditors without notice.

By naming MERS as the legal owner of the mortgage and using the MERS® System, MERS members get the protection of the recording statutes without paying for it. They are therefore unjustly enriched by parlaying the initial recording of a mortgage into a monetary benefit while ensuring priority. Mortgages are transferred a minimum of three times during the securitization process, resulting in substantial savings for MERS Members.


MERS also enables its Members to:

Transfer the risk of mortgage defaults off of their books expediently; and

Receive membership fees, transaction fees, and other monetary benefits by allowing MERS Members to use MERS as mortgagee of record.


The MERS System has paid off for the MERS Members.

Since 1997, more than 70 million mortgage loans have been registered on the MERS System, including 30 million currently active loans.

Approximately 60 percent of all residential mortgages in the U.S. are recorded in the name of MERS rather than in the name of the lender, trust, or company that actually possesses a meaningful economic interest in the repayment of the mortgage.


The MERS Members have saved $8.4 BILLION.

Based upon the figure of 70 million MERS mortgages* and using an average recording fee of $40 per recording,** and assuming each mortgage is assigned three times (the minimum number of assignments during the securitization process), we estimate that the MERS system has saved MERS members at least $8.4 BILLION in unpaid recording fees.

* See People v. JP Morgan Chase Bank, N.A., No. 2768/2012 (N.Y. Sup. Ct., Kings Co., Feb. 3, 2012)** See Deposition of R. K. Arnold, former President and CEO of MERSCORP and MERRS, dated Sept. 25,

2009, at 137:15 – 138:8 (Henderson v. MERSCORP, No. CV-08-900805.00 (Ala. Cir. Ct., Montgomery Co.))


Wall Street wanted to buy and sell mortgages Set up shadow recording system to avoid having to

record all the transfers 100 million records in the U.S. say that MERS has

a lien upon or interest in real property. Two guys working out of the back of a catering

truck MERS actually doesn’t do anything. Everything done is MERS name is actually done by

the banks14

C. The MERS System

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D. Traditional Mortgage Transaction

GranteeGrantee

DOT NoteDOT

Borrower$$

County Deed Records

Aspire Financial is the Beneficiary of the DOT and “Grantee” in deed records.

Aspire Financial

16

17

D. Traditional Mortgage Transaction, cont.

Aspire is the promisee on the promissory note.

Aspire’s right to receive payment of the promissory note is secured by the mortgage (“deed of trust” in Texas).

Filing the deed of trust perfects Aspire’s security interest in the property.

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D. Traditional Mortgage Transaction, cont.

Deed records index Aspire (the beneficiary of the DOT) as “grantee.”

Recording DOT provides notice to world that the property is encumbered in favor of Aspire.

If Aspire sells the note, the mortgage follows the note and the purchaser files a notice of the assignment.

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E. MERS Mortgage Transaction

Note

DOT

Borrower$$

Aspire Financial as the “Lender” is indexed as a “Grantee” in deed records.

MERS as a “beneficiary” is indexed as a “Grantee” in deed records.

Aspire Financial

Aspire Financial

DOT

County Deed Records

“Lender”

“Beneficiary”

20

21

22

E. MERS Mortgage Transaction, cont.

MERS is first identified as acting only as the “nominee” for Lender (Aspire).

But this doesn’t trigger MERS being indexed as a “grantee.”

So MERS adds a sentence which denominates MERS simply as “a beneficiary” without qualification. MERS then gets indexed as a “Grantee,” i.e., as having a security interest.

23


GrantorGrantor Assume that Aspire sells the note to Bank of

America (“BOA”)

Aspire logs onto the MERS System and notes the sale.

The sale IS NOT recorded in the public deed records.

Aspire continues to be the record holder of a security interest (as does MERS).

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When the note gets paid off, BOA prepares release of lien but pretends in the release that it is MERS.

BOA files the release in the deed records purporting to release the ENTIRE security interest, even that held of record by Aspire.

25

F. Impact of MERS on County Records

MERS and the MERS System has had a devastating impact on county records:

The MERS System has cost county recorders an estimated $8.4 billion in lost recording fees.

The MERS System has also obfuscated and confused county land records, which, prior to the establishment of MERS, served as the only reliable means to examine the title to a piece of property in the United States.

II. Governmental Enforcement Actions

$25 Billion settlement with Federal Government and State AGs

Addressed mortgage servicing and foreclosure abuses

Explicitly did not release claims dealing with recording, assignment, etc.

Consent Order

Comptroller of the Currency brought a formal enforcement action against MERS

Investigating agencies found deficiencies and unsafe, unsound practices by MERS

Failed to exercise proper oversight and provide adequate resources for administration

Action plan required

III. Litigation by State Recorders’ Offices

Arkansas Alabama Ohio Delaware Iowa Kentucky Louisiana Michigan Missouri

Class actions have been filed on behalf of counties in 17 states against MERS and

mortgagee banks:

Class actions have been filed on behalf of counties in 17 states against MERS and

mortgagee banks:

New York North Carolina Oklahoma California Pennsylvania Oregon Texas Nevada

A. The Claims Against MERS-Generally

Statutory Claims Violation of state recording statutes Consumer Fraud and Deceptive Practices Act

Unjust Enrichment

Civil Conspiracy

Piercing the Corporate Veil Allows liability for Member banks

B. Statutory Claims

Some counties have claimed violations of the following:

State false claim or deceptive practices act (e.g. Arkansas, Tennessee)

Negligent/willful violation of recording statute (Kentucky, Texas)

Negligent misrepresentation (Texas) Violations of recording statutes

B. Statutory Claims, cont.

In Illinois, recording of mortgage assignments is not required by law but recording does give priority over subsequent mortgage and lien holders

In Macon County, focused on the conspiracy to circumvent the recording statute

MERS Members unjustly retained the benefits of recording an initial mortgage, naming MERS as the “mortgagee of record,” which allowed them to appear to have valid mortgages against subsequent purchasers even though those mortgages were then assigned and not recorded, and even though the only route, pursuant to state law, for mortgages to be valid against subsequent purchasers is recordation with county recorders. MERS itself further benefitted by receiving membership and other fees from MERS Members. While these fees were less than MERS Members would have paid to county recorders, this is yet a measurable benefit unjustly retained by MERS. Plaintiff counties suffered damages in the form of lost recording fees.

C. Unjust Enrichment

D. Civil Conspiracy

MERS, MERSCORP, and MERS Members (the banks) conspired to unjustly benefit from the MERS Scheme

Conspired to circumvent 765 ILCS 5/30 – priority in recording statute

E. Piercing the Corporate Veil

MERS and MERSCORP are mere instrumentalities, undercapitalized and understaffed, and created by MERS Members for the sole purpose of unjustly evading the county recording system.

Supported by OCC Consent Order.

F. Some Current Actions

Macon County, Illinois v. MERSCORP, Inc. et al., No. 2:12-cv-2214 (C.D. Ill.). Plaintiff Macon County filed this action in Circuit Court for the Sixth Judicial Circuit of Illinois, and Defendants removed it to the federal court under the Class Action Fairness Act (“CAFA”). As described in more detail later, because it is highly

unlikely that the court will grant a motion to remand the action to state court, Macon County will not oppose the removal.

F. Current Actions, cont.

Jackson County, Missouri v. MERSCORP, Inc. et al., No. 4:12-cv-665 (W.D. Mo.): Jackson County filed an action in Missouri state court and Defendants removed to federal court under CAFA, and Jackson County will not oppose.

Jackson County plans to file an amended complaint soon.


Dallas County, Texas v. MERSCORP, Inc. et al., No. 3:11-cv-3722 (N.D. Tex.): The court denied the Defendants’ motion to dismiss Dallas County’s unjust enrichment, civil conspiracy, and fraudulent misrepresentation claims. The parties are currently in the discovery process. The specifics of this case will be discussed later in the presentation.


Plymouth County, Iowa v. MERSCORP, Inc., et al., No. 5:12-cv-4022 (N.D. Iowa). On August 21, 2012 the court dismissed Plymouth County’s claims. Plymouth County intends to file a motion to amend the complaint, and if that motion is denied, it will appeal the decision to the Eighth Circuit Court of Appeals. This case will be discussed in greater detail as well.

IV. Successes

Dallas County brought an action for violations of Texas recording statute, unjust enrichment, civil conspiracy, and other claims, against MERS and its Members.

The theory underlying Dallas County’s unjust enrichment claim was that “[t]he MERS System is specifically designed to allow MERS’ members to receive the benefits of the public recording system while avoiding the payment of filing fees.” Dkt. No. 35, in Dallas County, Tex. v. MERSCORP, Inc., No. 3:11- cv-3722 (N.D. Tex. Mar. 30, 2012), at 29

On May 23, 2012 the U.S. District Court for the Northern District of Texas denied the defendants’ motion to dismiss the county’s fraudulent misrepresentation, unjust enrichment, conspiracy, declaratory and injunctive relief, exemplary damages, and alter-ego/corporate veil piercing claims.

The court granted the motion to dismiss the claims for violation of the Texas recording statute and for negligent misrepresentation, negligence per se and negligent undertaking.

A. Dallas Cty., Tex. v. MERSCORP, No. 3:11-cv-3722 (N.D. Tex. May 23, 2012)

Landmark National Bank v. Kesler, 216 P.3d 158, 166 (Kan. 2009):

The Kansas Supreme Court held that MERS was not a necessary party to a foreclosure proceeding insofar as it was the “nominee” of the lender.

The Court described the relationship between MERS and the mortgagee bank as “akin to that of a straw man,” and noted that having “a single front man, or nominee, for various financial institutions makes It difficult for mortgagors and other institutions to determine the identity of the current note holder.” Id. at 166-68.

“The practices of the various MERS members, including both [the original lender] and [the mortgage purchaser], in obscuring from the public the actual ownership of a mortgage, thereby creating the opportunity for substantial abuses and prejudice to mortgagors … should not be permitted to insulate [the mortgage purchaser] from the consequences of its actions in accepting a mortgage from [the original lender] that was already the subject of litigation in which [the original lender] erroneously represented that it had authority to act as mortgagee.” Id. at 168.

B. Other Courts Condemn the MERS System and its Effect on County Land Records

B. Other Courts Condemn MERS, cont.

Mortg. Elec. Registration Sys., Inc. v. Sw. Homes of Ark., 301 S.W.3d 1, 5 (Ark. 2009): The Arkansas Supreme Court held that “[p]ermitting an agent, such as MERS purports to be to step in and act without a recorded lender directing its action would wreak havoc on notice in this state.” (emphasis added).

CitiMortgage, Inc. v. Barbaras, 950 N.E.2d 12, 15 (Ind. Ct. App. 2011): Indiana appellate court followed the Landmark case, finding that the MERS is not a necessary party to a foreclosure proceeding insofar as it is merely a “nominee” of the lender and has no real interest in the mortgage.

V. Obstacles and Solutions

Under federal law, defendants may remove a case from state court to federal court if NONE of the plaintiffs and the defendants are residents of the same state, and if the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1332(a)(1); 1441(b)(2).

Despite the fact that several MERS actions name both same state (nondiverse) and out-of-state (diverse) MERS Members as defendants, the defendants in some MERS actions have removed MERS actions from state to federal court under the doctrine of “fraudulent joinder.”

“Fraudulent joinder” does not actually involve fraud. Rather, it is a legal doctrine that applies when a defendant successfully argues that the plaintiff named certain nondiverse defendants in order to avoid diversity jurisdiction.

Several MERS plaintiffs have successfully challenged such removal.

A. Removal: Fraudulent Joinder

One such success is Ohio ex rel. Joyce v. MERSCORP, Inc., No. 1:11-cv-2474, 2012 U.S. Dist. LEXIS 66127 (N.D. Ohio May 13, 2012), in which the court granted the plaintiff’s motion to remand to state court, concluding that:

The defendants’ argument that the claims against Home Savings are frivolous because Ohio law does not require recordation, if correct, would apply equally to the non-diverse Home Savings and the diverse defendants. When a defendant’s “proffered justification for improper joinder is that there is no reasonable basis for predicting recovery against the in-state defendant, and that showing is equally dispositive of all defendants rather than to the in-state defendants alone, the requisite showing [of fraudulent joinder] has not been made.” Ohio v. MERSCORP, 2012 U.S. Dist. LEXIS 66127, at *9-10, citing Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 575 (5th Cir. 2004).

Further, the court held that under Eighth Circuit law, “the standard for establishing fraudulent joinder is even higher than the standard for prevailing on a motion to dismiss under Rule 12(b)(6),” and the court could not say that the allegations against Home Rule (and, therefore, the other defendants as well) were “so sparse” that there could be no possibility of recovery under Ohio law. Id. at *10-11, citing Smith v. SmithKline Beecham Corp., No. 11-56, 2011 WL 2731262, at *4 (E.D. Ky. July 13, 2011).

A. Removal: Fraudulent Joinder, cont.

B. Removal: Class Action Fairness Act (“CAFA”) Class Action Fairness Act: Amended 28 U.S.C. § 1332 and

1441 to grant federal jurisdiction to any class action commenced after February 18, 2005 if: (a) any member of the putative class is a citizen of a state different from any defendant; and (b) the amount in controversy exceeds the sum or value of $5 million. Complete diversity among parties is not required.

Defendants in Missouri (Jackson Cty. v. MERSCORP), Arkansas (Brown v. MERS), Michigan (Hertel v. MERS), and Ohio (Little v. MERS) have removed under CAFA.

CAFA does not apply to class actions in which the number of members of all proposed plaintiff classes in the aggregate is less than 100. 28 U.S.C. § 1332(d)(5). Therefore, in states with less than 100 counties, a county recorder can avoid falling under CAFA’s removal jurisdiction.

In Ohio v. MERSCORP (S.D. Ohio) and Hertel v. MERS, Inc. (W.D. Mich.), the defendants argued that although there are only 88 counties in Ohio, the plaintiff was really bringing its claim on behalf of all the counties and all their representatives. The court has yet to consider this argument.

In Brown v. MERS, Inc. (W.D. Ark.) the defendants argued successfully that, because the plaintiff brought a claim for illegal exaction on behalf of taxpayers, the “100 plaintiffs” requirement was met because there are certainly more than 100 taxpayers in Arkansas.

However, for states with more than 100 counties (i.e., more than 100 class members) removal under CAFA may be unavoidable.

B. Removal – Class Action Fairness Act (“CAFA”)

Christian County Clerk v. Mortgage Electronic Registration Systems, Inc., No. 5:11 CV-00072, 2012 U.S. Dist. LEXIS 21380 (W.D. Ky. Feb. 21, 2012)

The court considered whether three county clerks could bring a claim against MERS and other defendants for violating Kentucky’s mandatory recording statute and held that no private right of action existed for county clerks under the statute. Id. at *4.

Noting that Kentucky law explicitly authorized a private right of action by an owner against a lienholder who failed to record (id. at *9) the court concluded that because the “legislature conferred standing upon real property owners or parties acquiring an interest in real property, not upon county clerks, with respect to enforcing the mortgage assignment recording obligations,” no private right of action existed for clerks. Id. at *10.

Christian County is distinguishable from our actions, however, because the Christian County plaintiff was seeking damages for the “willfull or negligent” violation of a recording statute, whereas our claims for unjust enrichment and civil conspiracy are not dependent on recording statutes being mandatory.

Further, the Christian County court did conclude, helpfully for us, that the plaintiffs had established standing under Article III of the U.S. Constitution, because it had alleged an injury to its financial interest caused by the actions or omissions of Defendants ….[and a]t this stage of the litigation, these allegations are sufficient to establish Article III standing.” 2012 U.S. Dist. LEXIS 21380, at *8.

C. Challenging Decisions

Fuller v. Mortgage Electronic Registration Systems, Inc., No. 3:11-cv-1153 (M.D. Fla. June 27, 2012)

The court concluded that the plaintiff Florida county did not have standing to bring an action against MERS and MERSCORP because the Florida recording statutes do not provide a private right of action (although the court did conclude that the county had Article III standing).

The Fuller court appears to have confused and blurred the two distinct issues of (a) whether the clerk of the county had standing to pursue a common law claim on behalf of the county and (b) whether a private right of action exists under the recording statute.

Fuller is distinguishable from our action because we argue that the existence of a private right of action under a statute is irrelevant so long as the county has suffered injury in fact in the form of lost recording fees.

C. Challenging Decisions, cont.

Plymouth County, Iowa v. MERSCORP, Inc., No. 5:12-cv-4022 (N.D. Iowa Aug. 21, 2012)

On August 21, 2012, Judge Bennett of the Northern District of Iowa granted the defendants’ motion to dismiss Plymouth County’s action, brought on behalf of all counties in Iowa, alleging unjust enrichment, civil conspiracy, and other claims against MERS and its Members arising out of their failure to record assignments while representing that they were transferring fully-protected, first lien interests throughout the mortgage securitization process.

The court’s primary justification for dismissing the complaint was based on a misunderstanding of the nature of the claim which we believe can be corrected by filing an amended complaint.



Namely, the court held that, as pled, the complaint actually alleges a statutory violation of the Iowa recording laws. The court concluded that recording mortgage assignments is not mandatory under Iowa law, and therefore the plaintiff’s claims must fail insofar as, per the court, they were based upon this requirement.

We are currently drafting papers seeking to amend the complaint to make clear that this is NOT a claim for statutory violations.

Rather than focus on the “mandatory” or non-mandatory language of the recording statute, we will focus on the fact that, under Iowa law, in order for the assignment of a mortgage to be valid against subsequent purchasers for value, it must be properly recorded.

The MERS Members represented throughout the securitization process that they were transferring fully protected, first lien mortgages – but, crucially, they were not recording their assignments, and therefore these assignments are not valid against subsequent purchasers for value.



Therefore, the MERS Members relied upon the existence of the recording system, maintained by county recorders, in their representations – but failed to pay the recording fees attendant with the actual use of the system. Whether recordation is mandatory or not is irrelevant – regardless, the MERS Members received the benefit of the existence of a county recording system (the ability to represent that they were transferring a fully protected, first lien mortgage) without paying the county recorder the attendant recording fee for this service. As such, the MERS Members were unjustly enriched.


V. Real Estate Transfer Tax Actions

Real Estate Transfer Tax Actions, cont.

Recording Fees You know these all too well

Transfer Taxes Tax imposed on the privilege of transferring title,

beneficial interest, or controlling interest in real estate in Illinois. 35 ILCS 200/31-10

Recording Fees v. Transfer TaxesRecording Fees v. Transfer Taxes

Claims are brought against Fannie Mae and Freddie Mac

Originally chartered by Congress in 1938

Later became publicly traded private corporations

Responsible for payment of transfer taxes in two circumstances When they assume ownership at default When properties are sold to buyers


Fannie Mae and Freddie Mac have asserted they are exempt from paying transfer taxes

Two Federal Statutes do exempt them from “all taxation … by any State … County …”

But …


Two reasons why FM/FM are not exempted:

Transfer taxes are excise taxes and not direct taxes and therefore not exempt

The U.S. Supreme Court has held that an excise tax is one that is “levied upon the use or transfer of property, even though it might be measured by the property’s value.” United States v. Wells Fargo Bank, 485 U.S. 351, 355 (1988).

The enterprises are not government entities


Oakland County v. Fed. Housing Fin. Agency, No. 11-12666, 2012 U.S. Dist. LEXIS 40099 (E.D. Mich. Mar. 23, 2012)

The court relied upon the U.S. Supreme Court’s holding in Wells Fargo and found that transfer taxes are excise taxes and not direct taxes on the privilege of transferring interest in property. Further, the court held that over 80 years of Supreme Court case law establishes that excise taxes are permitted even when tax on the property has been forbidden.

For these reasons, the court found that Fannie May and Freddie Mac are liable for transfer taxes.

Success in Tax Suits

Adam J. Levitt

Wolf Haldenstein Adler Freeman & Herz LLCChicago, Illinois(312) [email protected]

Thank you

Chris Ellis

Bolen Robinson & Ellis LLCDecatur, Illinois(217) [email protected]

Documents

MERS Litigation: Justice for Illinois Counties Illinois Association of County Clerks & Recorders Annual Meeting and Conference Peoria, Illinois September