MERS, a privately run electronic database that was created by the mortgage industry in the 1990s, has saved financial firms millions of dollars over the years by allowing them to reassign loans without the time and expense of filing mortgage documents and paying local recording fees each time a loan changes hands.
During the housing boom, practically every major lending institution in the country used MERS to track and transfer the ownership of mortgages and more easily package them into securities that were traded across the world. After the housing bust, financial firms increasingly used the system to hasten the foreclosure process, often allowing MERS to act as a proxy in court.
The legality of MERS, which tracks about 70 million loans, has faced repeated challenges across the country, although Schneiderman’s suit is one of the highest profile yet. The firm consistently has defended the legality of its business model, and the mortgage industry has helped push for legislation on Capitol Hill and in state legislatures to affirm that legality.
But some state and local officials, as well as consumer advocacy groups, maintain that MERS is little more than a shell company created to bypass long-established property recording laws — an argument embraced in Schneiderman’s suit.
“The banks created the MERS system as an end-run around the property recording system, to facilitate the rapid securitization and sale of mortgages,” Schneiderman said in a statement Friday. “Once the mortgages went sour, these same banks brought foreclosure proceedings en masse based on deceptive and fraudulent court submissions, seeking to take homes away from people with little regard for basic legal requirement or the rule of law.”
His lawsuit asserts that the MERS database is riddled with inaccuracies, misrepresentations and numerous “robosigned” documents, which together have “confused, misled, and deceived homeowners and the courts and made it difficult to ascertain whether a party actually has the right to foreclosure.”
Schneiderman is seeking damages for homeowners who have suffered from the alleged abuses, as well as a court order forcing MERS and the banks to correct any flawed or deceptive documents that led to muddled titles or improper liens.
The banks named in the lawsuit declined to comment Friday. On its Web site, MERS posted rebuttals to the allegations in the lawsuit and again argued that its practices “are in compliance with state and federal laws.”
“We are confident that as people understand more about MERS and the role we play, they will see that MERS adds great value to our nation’s system of housing finance in ways that benefit not just financial institutions, the broader economy and the government, but — most of all — homeowners,” the company said in its statement.
The new lawsuit comes as Obama administration officials and a coalition of state attorneys general are on the brink of a major settlement with the nation’s biggest banks over foreclosure-related abuses that sparked national outrage in the fall of 2010. That long-anticipated deal, expected to be finalized in coming days, could net as much as $25 billion in penalties that would go toward ongoing foreclosure prevention efforts and in restitution to troubled borrowers who lost their homes in the wake of the financial crisis. It also would force banks to overhaul the way they service loans.
Until recently, Schneiderman had been critical of the deal, arguing that officials should hold off on a settlement until conducting deeper investigations into every aspect of the housing crisis. In his State of the Union address last month, President Obama announced a new task force of state and federal officials to further investigate mortgage misdeeds. The administration tapped Schneiderman to help lead that effort.