FW: Mers big loser in Ark sup ct....how many of these decisions before mers files for b/r? Is mers bleeding members yet
Posted: Sat Mar 21, 2009 9:02 pm
The Arkansas case really underscores the fact that MERS has contractual agency authority to conduct the foreclosure sale, but because Arkansas is a judicial foreclosure state, and where the substitute trustee was given notice and an opportunity to be heard in the course of the judicial foreclosure. This issue may arise for us in the course of adversary proceedings to determine the extent, validity or priority of liens (lien stripping) or even motions to determine value (Lam Motions).
California is a nonjudicial foreclosure state, so the issues are different than those found in Arkansas. The MERS issue would or could arise for us in the context of Motions for Relief from Stay (standing issue). But, the Arkansas decision seems to hold that MERS has the contractual authority to act on behalf of the lender to foreclose, and therefore, would have standing to file Motions for Relief from Stay.
Where the filing by MERS of a Motion for Relief from Stay may be challenged, however, is where there has been a substitute trustee appointed and recorded in the County Recorder's Office. Does MERS still have the agency authority to act after a substitute trustee has been appointed? The Arkansas decision cites the California decision in which the foreclosure was set aside because between commencement of the foreclosure and the actual foreclosure the substitute trustee was changed, requiring renoticing of the foreclosure. Is it, therefore, arguable that MERS would not have authority to file a Motion for Relief from Stay after a foreclosure trustee has been substituted as trustee in place of MERS?
When giving notice of the case filing, give the substitute trustee notice, as well as MERS and the lender from the note and deed of trust. When naming parties to a lien stripping adversary proceeding, you may need to name all parties; same being true in a Lam Motion. ARGHHHH!!! So much postage and copying!!
Lou
>
> The case suggests that we should be entitled to rely on the records of the
> County Recorder, and not have to worry about unrecorded assignments,
> transfers and resales of the note.
>
> Not sure why this decision harms MERS or its client. The foreclosure was by
> the junior lienholder so the foreclosure buyer acquired title subject to the
> claim by MERS and its client.
>
> David A. Tilem
> Certified Bankruptcy Specialist*
> Law Offices of David A. Tilem (a debt relief agency)
> 206 N. Jackson Street, #201, Glendale, CA 91206
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal
> Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
>
>
> Erik Clark
> Sent: Saturday, March 21, 2009 8:41 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] FW: Mers big loser in Ark sup ct....how many of these
> decisions before mers files for b/r? Is mers bleeding members yet?
>
>
>
>
> From another listserv
>
> I think it is an important case
>
> _____
>
>
>
> Shortcut to: http://courts.
> 99.pdf> arkansas.gov/court_opinions/sc/2009a/20090319/published/08-1299.pdf
>
>
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The post was migrated from Yahoo.