I ran across an interesting and possibly noteworthy dissent in a recent Ohio appellate case involving MERS. This case is:
Countrywide Home Loans Servicing, L.P. v. Shifflet, CASE No. 9-09-31, COURT OF APPEALS OF OHIO, THIRD APPELLATE DISTRICT, MARION COUNTY, 2010 Ohio 1266; 2010 Ohio App. LEXIS 1065, March 29, 2010, Decided.
The dissent by Justice ROGERS reads:
I respectfully dissent from the conclusions of the majority. The alleged assignment is based on the mortgage which designated MERS as an agent for the purpose of servicing the note and mortgage. Nothing in that document purported to transfer to MERS any interest in the real estate or the repayment of moneys loaned, except as the servicing agent for the lender. Specifically, the mortgage states that it:
[S]ecures to Lender [Countrywide Home Loans, Inc.]: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note, and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS the following described property * * *.
While the quoted language indicates that the borrower "does hereby mortgage, grant and convey to MERS * * * the following described property", that language is limited by the words immediately following it, to wit: "solely as nominee for Lender and Lender's successors and assigns."
This language clearly indicates that the "assignment" from Countrywide to MERS was limited in scope in that MERS was merely a "nominee for Lender and Lender's successors and assigns." This language transfers no real interest in the real property or the loan. Accordingly, an assignment from MERS could only convey that to which MERS actually had an interest.
I would find that the documents presented to the trial court were insufficient to sustain a finding that Countrywide Home Loans Servicing, L.P. was the real party in interest and would reverse the judgment of the trial court.
The majority opinion described the MERS mortgage assignment in this way:
"This assignment reveals that as of February 23, 2009, MERS "does hereby sell, transfer, and assign to [CHLS], its successors and assigns, all its right, title and interest in and to that certain mortgage * * * together with the note and indebtedness therein mentioned[.]" This assignment identifies the Shifflets as the parties who executed the mortgage and identifies the subject property as the Schell Drive property at issue in this case. The document was executed on March 17, 2009, and recorded in Book 1084, Page 921 in the Marion County Recorder's Office on March 23, 2009."
Of course, it is well known and has been judicially admitted by MERS that MERS is NEVER the owner of the promissory note and alleged mortgage indebtedness. WHENEVER AN ASSIGNMENT ASSETS THAT MERS IS ASSIGNING AN INTEREST IN THE NOTE AND THE INDEBTEDNESS, YOU CAN BE ASSURED THAT THIS DOCUMENT IS A FABRICATION CREATED BY THE PLAINTIFF SOLELY FOR USE AS FALSE EVIDENCE IN THE COURT CASE.
In defending against a suit involving an MERS assignment, a defendent might very well want to explicitly make the argument presented by Justice ROGERS. That is, the purported assignment is expressly restricted by the language showing that MERS is acting solely as nominee for the Lender, Lenders' successors and assigns, but, of course, no evidence actually proving the nature or thecontinuity of this relationship is ever offered in proof.
More importantly, remember to defensively plead that MERS has NO INTEREST WHATSOEVER in the promissory note and the alleged indebtedness and that the purported assignment is a fabrication. Then take care to get admissible evidence before the court PROVING this, particularly the holdings and the appellant's brief from the Nebraska case.
Bear in mind that the dissent is a little off the mark as to MERS' role. MERS is also NOT a servicer, though it sometimes pretends to be.