A year or so ago, a lot of us consumer/bankruptcy attorneys were ecstatic about Judge Grossman’s decision about MERS and its assignment of mortgages. Judge Grossman could not rule on the case before him if MERS had the authority to assign the mortgage based Res Judicata and Rooker-Feldman doctrine, (Decided cases in state law cannot be reargued on the same issues) however he discussed a hypothetical case. Judge Grossman stated his concern with multiple cases dealing with questionable assignments from one mortgage company to another and suggested that these assignments are invalid. Many courts have already ruled that if the assignment is deficient or inadequate or even worst fraudulent then standing is denied to the bank. In these cases Bank failed to prove that it is a real party of interest with the ability to sue and be sued. See U.S. Bank National Ass’n v. Ibanez 941 N.E. 2d 40 (Mass. 2011); M&T Mortg. Corp. v. Foy, 858 N.Y.S.2d 567, 572 (N.Y. Sup. Ct. 2008); Bank of New York as Trustee for Home Mortgage Investment Trust 2004-4 Mortgage backed Notes, Series 2004-4 v. Michael J Raftogianis 13 A.3d 435 (N.J. Super. Ct. Ch. Div. 2010.
Judge Grossman stated that (1) assignment of the mortgage is not sufficient to establish an efficient assignment of the note and that (2) MERS as nominee did not bestow MERS with the authority to assign the mortgage. Although his statements did not affect the outcome of the case involving Agard, many attorneys, me included, latched on to Judge Grossman’s statement to make the same argument in other cases. The U.S. District court vacated Judge Grossman’s statements in regards to MERS ability to assign mortgages. Alas, we are again back at square one. Information is provided to read more about the case:
In Re Agard v. Select Portfolio Servicing Inc., 11-cv-1826, and Mortgage Electronic Registration Systems Inc. v. Agard, 11-cv-2366, U.S. District Court, Eastern District of New York (Central Islip). The bankruptcy case is In re Agard, 10- 77338, U.S. Bankruptcy Court, Eastern District of New York (Central Islip).