Federal Judge Rules Plaintiff was “attempting to weave an improper legal fiction out of whole-cloth.”
FOR IMMEDIATE RELEASE
CONTACT: Jason Lobo
Reston, Virginia, June 28, 2012— MERSCORP Holdings, Inc. today announced that U.S. District Judge Harvey E. Schlesinger of the U.S. District Court for the Middle District of Florida, Jacksonville Division, ruled this week in favor of MERSCORP Holdings, Inc. and Mortgage Electronic Registration Systems, Inc. (MERS), dismissing a recording fee suit filed by the Clerk of the Circuit Court of Duval County, Florida.
In Fuller v. MERS, Judge Schlesinger dismissed with prejudice a six-count claim seeking relief under the provisions of Florida’s Recording Statutes and alleging civil conspiracy, unjust enrichment and fraud. Judge Schlesinger found that “MERS has not committed an unlawful act, or a lawful act by unlawful means,” saying, “First, this Court must be clear that the recording of mortgage assignments, under Florida law, is at the complete discretion of the party wishing to record the document.”
“This is the second significant and precedent-setting decision for MERS in fee recording suits. Not only did Judge Schlesinger determine MERS is lawful, he also noted that the county clerk lacks standing to sue or collect damages from MERS – as was also recently ruled in Kentucky,” said Janis Smith, MERSCORP’s Vice President for Corporate Communications.
Judge Schlesinger noted that the statutes cited by the Clerk, §§ 28.222(1) and (6,) do not provide a remedy for the Clerk to sue, but merely lays out what the Clerk’s duties and responsibilities are for recording documents. This statute was intended to protect bona fide purchasers or creditors – not plaintiffs. “Even if Plaintiff could establish that he has a right to bring this cause of action, each of his claims for relief would fail on the merits,” Judge Schlesinger wrote.
“The central theme of Plaintiff’s Complaint is the assertion that MERS is falsely designating itself as a mortgagee on mortgages filed and recorded with Plaintiff,” Judge Schlesinger wrote. Citing existing Florida case law, Judge Schlesinger further explained that as mortgagee, “the Florida courts have consistently affirmed the use of MERS as the designated mortgagee of record and the principle that MERS may serve as mortgagee or as nominee for the lender and the lender’s successors and assigns.”
“Recording the mortgage in MERS’ name in the land records fulfills the purpose of the recording statutes,” added Smith. “The statutes’ intent is to assure that liens are discharged when an underlying loan is paid off, to give subsequent purchasers and lenders notice of recorded liens, and to allow creditors to give notice of their secured interest in the property. MERS’ business model is consistent with these purposes.”
MERSCORP Holdings, Inc. is a privately held corporation that owns and manages the MERS® System and all other MERS® products. It is a member-based organization made up of thousands of lenders, servicers, sub-servicers, investors and government institutions. Mortgage Electronic Registration Systems, Inc. (MERS) serves as the mortgagee in the land records for loans registered on the MERS® System, and is a nominee (or agent) for the owner of the promissory note. The MERS® System is a national electronic database that tracks changes in mortgage servicing and beneficial ownership interests in residential mortgage loans on behalf of its members.