MERS Strikes Again–And I Don’t Mean The Virus

Years ago, I argued that MERS (Mortgage Electronic Registration Systems) fundamentally uncut the basic foundations of property law by destroying and invalidating the transmission of titles–all so it would be easier to bundle and slice mortgages. It would appear, in Seattle, the day of reckoning draweth nigh (boldface mine):

A Seattle housing activist on Wednesday uploaded an explosive land-record audit that the local City Council had been sitting on, revealing its far-reaching conclusion: that all assignments of mortgages the auditors studied are void.

That makes any foreclosures in the city based on these documents illegal and unenforceable, and makes the King County recording offices where the documents are located a massive crime scene.

The problems stem from the Mortgage Electronic Registration Systems (MERS), an entity banks created so they could transfer mortgages privately, saving them billions of dollars in transfer fees to public recording offices. In Washington state, MERS’ practices were found illegal by the State Supreme Court in 2012. But MERS continued those practices with only cosmetic changes, the audit found.

That finding has national implications. Every state has its own mortgage laws, and some of the audit’s conclusions may not necessarily apply elsewhere. But it shows how MERS reacted to being caught defrauding the public by trying to sneak through foreclosures anyway. Combined with evidence in other parts of the country, like the failure to register out-of-state business trusts in Montana, it suggests that the mortgage industry has been inattentive to and dismissive of state foreclosure laws….

By pretending to transfer interests that MERS does not own, the assignments are fraudulent under Washington law, the audit concludes. And all subsequent filings, and subsequent foreclosures, depending upon that invalidated assignment, are similarly void. The audit cites state law that makes filing false or forged documents to public offices a felony, with penalties of up to $5,000 and five years in prison.

While most of the commentary and concern focused on the macroeconomic effects, we have never had a reckoning about the utter disregard for property law that Big Shitpile exposed (and was built upon). This could still get really ugly.

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