April 21, 2020 — Maurice Wutscher attorney Kevin Hudspeth has written an article for the American Bar Association’s news magazine Business Law Today in which he discusses a line of judicial opinions from Maine’s Supreme Court that calls into question the ability of foreclosing lenders to rely on mortgage assignments from MERS when proving ownership of the mortgage.
In “MERS’s ‘Maine’ Purpose: Recognizing Key Differences Between MERS Mortgages,” Mr. Hudspeth writes, “Maine’s Supreme Court recently held that a foreclosing lender’s equitable interest in the mortgage does not by itself equate to ownership of the mortgage and does not allow courts to compel the mortgage’s assignment. Beal Bank USA v. New Century Mortg. Corp., 2019 ME 150, ¶ 15. The opinion revives concerns over the viability of foreclosing Maine mortgages involving Mortgage Electronic Registration Systems, Inc. (MERS).”
“Now that Maine’s Supreme Court has shot down the equitable trust argument, however, foreclosing lenders must seek alternative arguments to enforce their mortgage rights. Before they decide how to proceed, they should check their Maine mortgage to see how it describes MERS’s main purpose,” he writes.