Will MERS Exam Be a Whitewash?

Naked Capitalism has a post on Federal banking regulators will conduct an examination of MERS.  Max has been teaching attorneys about the multitude problems with MERS for years. Bankruptcy Boot Camp Graduate, Nick Wooten, whom Yves mentions in her post, has been leading the charge in exposing MERS problems through litigation.  Please check out the full post.  Some highlights are:

On the one hand, MERS purports to be acting as a nominee—a form of an agent. On the other hand, it also is claiming to be an actual mortgagee, which is to say an owner of the real property right to foreclose upon the security interest. It is axiomatic that a company cannot be both an agent and a principal with respect to the same right.19 In litigation all across the country, attorneys representing MERS frequently take inconsistent positions on the legal status of the company, depending on the legal issue at hand. …

As troubling is MERS’ lax corporate governance. The parent, MERSCORP, has under 50 employees; the subsidiary MERS, which is the database, has no employees. It instead relies on the peculiar procedure of having employees of MERS members (typically, bank servicing units and foreclosure mills) temporarily become MERS officers for the sole purpose of taking action in MERS’ name…

Between this deposition, and an earlier one of MERSCORP president R.K. Arnold by Nick Wooten, one get a more complete picture of how lax MERS’ operational controls are. MERS does keep a record of who its certifying officers are, but it has not record of what actions any particular certifying officer has taken. This would seem to be a fatal shortcoming in conducting any kind of audit. Arnold maintained that MERSCORP did various quality reviews, but was unable to say what they consisted of or even who on his team was responsible for them. …