Opinion

Alison Frankel

N.Y. AG’s new MERS suit: Where are the MBS investors?

By Alison Frankel
February 7, 2012

After New York Attorney General Eric Schneiderman filed his new complaint against JPMorgan Chase, Bank of America, Wells Fargo, and the Mortgage Electronic Registry System, I got an email from the AG’s spokesman. “Looking forward to your story on the MERS lawsuit in the wake of your inaccurate conjecture this week,” it said, referring to my column expressing skepticism that the recently-announced joint mortgage-backed securities task force will accomplish more than the individual task force members have.

As I said in that piece, I’m eager for my skepticism to be proved unfounded. I hope the task force tells the world exactly who is responsible for the greed-driven securitization deficiencies already alleged in private MBS suits and in Congressional reports. I hope someone comes up with a legal theory to hold wrongdoers accountable for packaging mortgages that never should have been issued into securities that were (allegedly) not what they were represented to be.

That, however, is not what the AG’s new case does.

The suit, filed Friday in New York State Supreme Court in Brooklyn, asserts that the Mortgage Electronic Registration Systems — the privately-held organization established in the 1995 to streamline the securitization process by centralizing mortgage-transfer records — was essentially a sham operation that swindled localities out of $2 billion in mortgage-transfer fees and improperly foreclosed on homeowners whose mortgages it didn’t actually own. The AG’s office alleges that MERS and the defendant banks, all members of the MERS system, have foreclosed on hundreds of homes to which MERS was nominally the mortgage assignee, even though such foreclosures were “faulty and deceptive in several respects.” (The alleged deficiencies include MERS’s lack of standing to bring foreclosure actions; MERS’s misrepresentation of its foreclosure rights to homeowners and judges; and the mortgage registry’s submission of robosigned affidavits to courts in foreclosure cases.) Moreover, according to the complaint, MERS’s deeply flawed, private database hid mortgage transfers from courts and homeowners who needed to track them down.

Those are all serious allegations, but they are familiar. Here is MERS’s official response to Schneiderman’s complaint, but MERS offers a more detailed explanation of its record in defending against similar charges in its motion to dismiss the Delaware Attorney General’s October 2011 suit against it.

“Courts throughout the country have routinely and consistently held that MERS’s initiation of foreclosures is authorized by the express language of the mortgage contracts executed by the borrowers of member-originators and by the assignments MERS obtained from mortgagees of non-member-originators,” wrote MERS’s lawyers at Morgan, Lewis & Bockius, citing eight cases from state and federal courts around the country that have upheld the mortgage registry’s standing to foreclose.

To me, what’s most interesting about the New York attorney general’s suit against MERS and three of its members is what the complaint doesn’t assert. The Delaware AG’s MERS suit included allegations that MERS helped MBS issuers and securitization trustees peddle securities that were fundamentally flawed, since MBS trusts may not actually have owned some of the mortgages bundled into the securities they sold. When the suit was filed, I said that if the Delaware AG’s allegations were true, the entire securitization industry was facing havoc. (MERS’s Morgan Lewis lawyers countered that the AG doesn’t have standing to assert deceptive trade claims on behalf of MBS investors.)

But Schneiderman’s complaint doesn’t include claims on behalf of MBS investors. It doesn’t address details of the securitization process at all, beyond noting that MERS was created and operated to facilitate that process.

Schneiderman has been very forceful in arguing that the mortgage crisis can’t be resolved without addressing investors’ claims that they were duped into buying misrepresented mortgage-backed securities. Almost singlehandedly, the New York AG forced his fellow state AGs to refuse to waive securitization claims against the banks negotiating a 50-state settlement of foreclosure-deficiency allegations and embarked on his own investigation of those practice. Schneiderman has told MSNBC’s Rachel Maddow that he and Delaware AG Joseph Biden III are committed to “looking at the conduct of individual institutions and individuals to see if there were misrepresentations made, to see if there was fraud committed, to see if criminal acts were also a part of this.”

I’m still waiting to see the fruits of that investigation. Surely, Friday’s MERS suit isn’t all the New York Attorney General has up his sleeve.

For more of my posts, please go to Thomson Reuters News & Insight

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