The attacks on the Mortgage Electronic Registration System (“MERS”) continues unabated at all levels. In the case MERS v. Johnston (Rutland County Superior Court case no. 420-6-09 Rdcv) another Court had held that MERS doesn’t have standing to complete a foreclosure of a mortgage which did not specifically name it as the mortgagee, or which secures a promissory note that didn’t specifically name MERS as payee. The opinion relied heavily on the Landmark National Bank v. Kesler decision from the Kansas Supreme Court that was issued in September of this year. The Kesler decision, in turn, relied heavily on the 2005 Nebraska Supreme Court decision Mortgage Elec. Reg. Systems v. Nebraska Dept. of Banking, 270 Neb. 529, 530, 704 N.W.2d 784 (2005).
It is still unclear just how much damage this line of cases will do to the infrastructure of the MERS nominee system. But at least one Federal Court has seemingly upheld the MERS system for at lease some purposes. On September 24, 2009, the US District Court for the District of Arizona handed down its trial court decision in Cervantes v. Countrywide (Case No. CV 09-517 PHX-JAT) in which the trial court determined that MERS is “not a sham,” as had apparently been alleged by the plaintiffs. This Arizona decision is only a trial court decision, however, and is not binding on any other court.