Regulatory Order Really a Win for Embattled MERS and the Banks That Use It

To many in the industry, federal regulators just gave Mortgage Electronic Registration Systems a big stamp of approval.

In an April 13 consent order, regulators never questioned the underlying business model of Merscorp Inc., whose private loan registry has become a lightning rod for foreclosure litigation.

The Office of the Comptroller of the Currency did not even attempt to address the controversy being litigated in hundreds of courts across the country: Does MERS have the legal right to foreclose on a borrower?

That omission is now being construed as a "win" for the largest banks.

"For MERS there is a potential silver lining in this cloud," said David Dunn, a partner at the law firm Hogan Lovells in New York who represents banks. "The [consent] order has, in effect, validated their procedures and processes. Given the attacks MERS has come under in all sorts of state courts, that's good news. It could have been a lot worse."

Several mortgage servicers, particularly Bank of America Corp., had alerted shareholders last month of the possibility of fines, penalties and even hits to earnings if MERS' business model had been upended. For now, that model remains intact, lawyers say.

Regulators also did not question the validity of allowing hundreds of bank employees to be designated as "certifying officers" of MERS — an issue plaintiff's lawyers maintained amounts to its own robo-signing scandal. Such certifying officers will have to be identified and tracked, but they can still sign legal documents such as mortgage assignments and lien releases in MERS' name, regulators said.

"The premise of MERS remains as valuable today as the day it was conceived," said Allen Jones, a managing director at RiskSpan Inc., a Stamford, Conn., analytics and advisory firm, and a former executive of default management at B of A.

MERS did not come out of the regulators' examination completely unscathed. Given that 31 million residential mortgage loans are recorded on the MERS system, ensuring the accuracy and reliability of data reported by the servicers will be a significant challenge. Banks are particularly spooked by regulators' requirements that MERS "maintain adequate reserves for contingency risks and liabilities."

"For a little and thinly staffed enterprise like MERS, it will be a harder process," said Ellen Marshall, a partner at Manatt, Phelps & Phillips LLP.

Marshall said the 14 largest bank servicers face "substantial costs" complying with their own consent orders and getting MERS in compliance.

The Reston, Va., company must hire significantly more staff, get its finances in order and comply with third-party audits and added scrutiny (where none existed before) from its 25 shareholders, including B of A, Wells Fargo & Co., JPMorgan Chase & Co., Fannie Mae and Freddie Mac.

"The staffing, reviews and audits will be costly," Marshall said. MERS "will pay for it presumably by assessing its members." (MERS’' revenue comes solely from its 2,184 active members, which pay annual fees determined by their size and transaction fees for loan registration.)

Moreover, MERS still faces hundreds of lawsuits from borrowers claiming it lacks standing to initiate a foreclosure or to assign a mortgage to the actual noteholder. To reduce its litigation costs, MERS told its members in February to stop foreclosing in its name. MERS now will assign the mortgage back to the noteholder, essentially resolving many of the legal questions surrounding which entity has the right to foreclose.

Still, after seven years and 385 lawsuits, only 17 were decided against MERS, and the company has not paid a single monetary judgement from any court case, said Karmela Lejarde, a MERS spokeswoman. It continues to win the vast majority of legal challenges.

In recent weeks courts in Massachusetts, Kansas and New Hampshire have upheld the standing of MERS in foreclosure cases. An Arizona court will decide Monday whether a closely-watched lawsuit, alleging MERS was designed to unlawfully avoid county recording fees, may proceed. Last year six class-action lawsuits against MERS in Arizona, California and Nevada and more than 80 individual suits claiming various forms of fraud were dismissed.

MERS also has hired some politically savvy executives who will be addressing the consent order including Kurt Pfotenhauer, the CEO of the American Land Title Association, as chairman, and Paul Bognanno as president and CEO.

Bognanno ran Principal Financial Group's mortgage lending business in the 1990s and more recently was chairman of the mortgage insurer Radian Guaranty.

"I don't think the regulators alone can decide some of the issues that are applicable under state law," Marshall said, although "they certainly signaled that they didn't see anything in the state law cases that fundamentally undercut the overall model."

Federal regulators did clear up some of the confusion about promissory notes. In a footnote, they wrote: "The ownership of the note is determined by the Uniform Commercial Code and, if a change in ownership of a note is not recorded in MERS or is recorded incorrectly, the transfer is still valid."

Banks have largely stayed the course with MERS because of the substantial benefits that led to its creation in 1985 by a few staff members of the Mortgage Bankers Association.

MERS was structured for a dual purpose: to eliminate the need by banks to prepare and record successive assignments of mortgages each time ownership was transferred, and to avoid paying county recorder fees.

"The trend right now is in their favor," Jones said.