In yet another setback for MERS, the Maine Supreme Judicial Court recently held that MERS is not a mortgagee under Maine law:
"Its designation as the “mortgagee of record” in the document does not change or expand that right; and having only that right, MERS does not qualify as a mortgagee pursuant to our foreclosure statute, 14 M.R.S. §§ 6321-6325."
The decision is in the unpublished case:
Deutsche Bank Nat'l Trust Co. v. Stratton, Docket No. Ken-09-533, Mem 10-89;, 2010 Me. Unpub. LEXIS 95, July 7, 2010, Submitted on Briefs, July 22, 2010, Decided (Me. 2010)
The Court thoughtfully takes apart any argument that MERS has a pecuniary interest in the promissory note, mortgage indebtedness or that MERS could be injured in any way by a borrower's default:
"Nothing in the trial court record demonstrates that MERS suffered any injury when the Saunderses failed to make payments on their mortgage. When questioned directly at oral argument about what injury MERS had suffered, the Bank responded that MERS did not need to prove injury to foreclose, only that it was a “mortgagee.” As we have already explained, MERS is not a mortgagee pursuant to 14 M.R.S. § 6321 because it has no enforceable right in the debt obligation securing the mortgage. In reality, the Bank was unable to suggest an injury MERS suffered because MERS did not suffer any injury when the Saunderses failed to make payments on their mortgage. See Mortg. Elec. Registration Sys., Inc. v. Neb. Dep’t of Banking & Fin., 704 N.W.2d 784, 788 (Neb. 2005) (stating that “MERS has no independent right to collect on any debt because MERS itself has not extended credit, and none of the mortgage debtors owe MERS any money”). [emphasis added]"
While the decision is yet another disaster for MERS' unraveling business model, it is also somewhat a mixed bag for the defendant.
Separately, the Maine Supreme Court held that standing was not a Constitutional imperative in that state and, therefore, found that even though the plaintiff lacked standing at the commencement of the suit that this standing defect could be cured by a Rule 17 or Rule 25 substitution.
Frequent Forum particupants will recall my frequent cautions that where the state court's authority arises out of a state "open courts" provision of a state Constitution, standing has often been held to be a state Constitutional imperative, much as Article III of the United States Constitution imposes such a restraint on Federal Court jurisdiction. State Supreme Courts in Kentucky, Ohio and Texas, amongst others, have held that standing is a Constitutional imperative. In places where there is a Constitutional requirement -- where courts are open for "injury done him" -- the Courts often have held that standing cannot be waived and can be raised for the first time on appeal (even where courts have held that the issue can be raised for the first time on appeal, I wouldn't recommend that you wait to make the argument).
By contrast, New York requires a defendant's objection to standing to be pled immediately upon answer or the issue is waived. Other states have similar rules. Unfortunately, it seems that Maine has similarly expressly decided that standing isn't a Constitutional requirement in that state.
Those making standing arguments are encouraged to carefully research the law in thier jurisdiction and to consider making both a Constitutional standing argument, as well as the somewhat less potent "real party in interest" argument under Rule 17 (or yoru jurisdiction's equivalent). Discuss this with your lawyer!
In the Saunders case, the defendants will find themselves back in the trial court seeking to stop a renewed assault by the substituted plaintiff. Saunders would be well counselled to plead in the MERS Appellant's Brief from the Nebraska case. Saunders should probably also carefully scrutinize the language appearing within the MERS assignment. Very likely it includes language purporting to assign not only the mortgage, but also the promissory note and indebtedness, which MERS NEVER owned!
The MERS Appellant's Brief can be used as proof that MERS had no interest in the note. And, if the assignment includes language purporting to assign the note, by showing that this language is patently FALSE, Saunders might have a good defensive case under the clean hands doctrine, as well as a basis for sanctions. Since the Maine Supreme Court already has shown that it understands MERS, an aggressive effort by Saunders could really pay off!