Amicus Brief Challenging MERS’ Standing to Foreclose
INTERESTS OF AMICI CURIAE
Amici are non-profit legal services and public interest organizations who have special expertise in defending foreclosures and in documenting how the mortgage market works. Amici South Brooklyn Legal Services, Jacksonville Area Legal Aid, Inc., Empire Justice Center, Legal Services for the Elderly, Queens Legal Aid, Legal Aid Bureau of Buffalo, Legal Services of New York City–Staten Island, Fair Housing Justice Center of HELP USA, and AARP’s Foundation Litigation and Legal Counsel for the Elderly provide free legal representation to low-income individuals and families who are victims of abusive mortgage lending and servicing practices, and who are at risk of foreclosure. Amici Center for Responsible Lending, National Consumer Law Center, National Association of Consumer Advocates, and Neighborhood Economic Development Advocacy Project are non-profit research and policy organizations dedicated to exposing and eliminating abusive practices in the mortgage market. AARP advocates on behalf of consumers in the mortgage marketplace and through its Public Policy Institute conducts research on a wide variety of issues affecting older persons, including subprime mortgage lending and mortgage broker practices.
Collectively, amici represent or counsel thousands of low to moderate income homeowners each year. Amici prevent foreclosures through defense of foreclosure actions in court; negotiating with foreclosing lenders to address servicing abuses that inflate mortgage balances and to modify mortgages to give homeowners a fresh start; filing administrative claims with city, state, and federal agencies; conducting community outreach and education to address predatory lending and abusive servicing; and working on various policy issues to protect consumers and prevent abusive mortgage lending and servicing practices. The Mortgage Electronic Registration Systems, Inc. (“MERS”) has a substantial and detrimental impact on amici as it curtails their ability to conduct research and advocacy and impairs the rights of their homeowner clients. In particular, MERS’ failure to conform to New York law significantly undermines the public interest in preserving the free public database created by land and court records and imposes substantial harms on amici’s homeowner clients. Therefore amici urge this court to reverse the decision below and to find in favor of Respondents-Appellants.
Through their extensive experience representing individual homeowners and closely studying both the national and local mortgage markets, amici have learned first-hand the detrimental effect of MERS’ electronic registration system on homeowners, and its destructive impact on the public land records that serve the public interest in a variety of critical ways. Although this case turns on a question of New York law, amici and the homeowners they represent nationwide have experienced the same obstacles, confusion, and frustration that are created by the MERS system in New York State. The MERS system harms homeowners and undermines the public interest by concealing information that is essential both to the maintenance of accurate public land and court records, and to individual homeowners, particularly those who seek redress for predatory mortgages or face foreclosure. Three issues highlight the importance of these concerns to homeowners and to the public interest. First, because MERS obfuscates the true owner of the note, MERS creates significant and detrimental confusion among borrowers and homeowners, their advocates, and the courts. Second, MERS frustrates established public policy, which dictates that title information must be publicly available, thus causing harm to state and local governments, advocacy groups, and academic researchers who routinely rely on public database information to inform legislative decision-making, to support law enforcement, and to advance policy solutions to a wide variety of housing and mortgage issues. Third, MERS’ routine practice of improperly commencing foreclosure actions solely in its name, even though it is not the true owner of the note, flaunts courts rules and raises significant standing concerns. Accordingly, amici urge this Court to reverse the decision of the court below and find in favor of Respondents-Appellants Edward P. Romaine and the County of Suffolk, and against Petitioners-Respondents MERS.
Without any legal authority, MERS is eroding the public databases of this nation and unjustly withholding critically important information from homeowners. MERS is designed as a profit-engine for the mortgage industry, without regard to its infringement of essential public and individual rights. Because MERS has no beneficial interest in mortgages and should not be permitted to forcibly effect its intentionally obfuscating recordations, this Court should find in favor of Respondents-Appellants, Edward P. Romaine and the County of Suffolk and against Petitioners-Appellants-Respondents, MERS.
Read entire Amicus Brief below…