New Hampshire Court Rules for MERS
MERS, the Mortgage ElectronicrnRegistration System, won another court battle last week. On February 21 the New Hampshire SuperiorrnCourt affirmed, in the case of Dow v Bankrnof New York Mellon Trust, that MERS had the authority to both hold andrnassign its interest in mortgages under New Hampshire law. </p
Presiding Justice N. William Delkerrnwrote in his decision that the language of the plaintiff’s mortgage expresslyrnnamed MERS as the mortgagee and gave it the authority to act as nominee of thernlender. This authority included thernright to assign its interest in the mortgage to the Mellon Trust. “The plaintiffrnexpressly gave MERS and its assignees the authority to foreclose. rnMoreover, the mortgage instrument put the plaintiff on notice that both thernoriginal lender and MERS could assign their interest without notice to thernplaintiff.”</p
Justice Delker further wrote, “There is a tremendous amountrnof case law throughout the country on the issues surrounding foreclosurernactions when the promissory note is held by one entity and the mortgage is heldrnby another entity – typically MERS. Thernprocess of recording each new assignment of the mortgage in the registry ofrndeeds in order to perfect the security interest in the real estate would becomernexceedingly expensive and cumbersome if each time the promissory note and thernmortgage changed hands a new mortgagee would have to be listed in the titlernrecord.”</p
Since January 24rnMERS has won in similar cases in the U.S. Court for the Western District ofrnKentucky and the U.S. Court of Appeals for the 11th JudicialrnCircuit. Other cases are pendingrnincluding several brought by state’s attorneys general.
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