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Court of Appeals Upholds Recording of MERS Mortgages
In Matter of Merscorp, Inc. v. Romaine, decided last month, the Court of Appeals resolved the long-standing dispute between the Suffolk County Clerk's office and participants in an electronic mortgage registration consortium. In one of the first opinions by recently appointed Judge Eugene Pigott, the court held that the County Clerk is required to accept for recording mortgages and satisfactions in the name of MERS (Mortgage Electronic Registration Systems, Inc.) even though MERS itself holds no interest in those mortgages.
The MERS System
In 1993, a number of mortgage lenders joined to create a system to track interests in residential mortgages. The system was designed to permit lenders to transfer mortgages freely without having to record each assignment with the local office for recording interests in real estate. Lenders, title insurers, and other members of MERS pay an annual fee for the electronic processing and tracking of ownership and transfer of mortgages. When a MERS member obtains a mortgage from a borrower, the mortgage is recorded in the office responsible for real estate recording (typically the county clerk's office). The mortgage is recorded not in the name of the actual mortgagee, but in the name of MERS as the lender's nominee, or as mortgagee of record. Subsequent transfers of the mortgage to other MERS members are not recorded in the county clerk's office, but are instead tracked internally by MERS. When the mortgage is discharged, MERS ' like any ordinary mortgagee ' issues a certificate of discharge. The mortgagor would then be entitled to record that certificate of discharge to establish clear title.
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