The controversial company, MERS, continues to face critical review across the nation. The Supreme Court of Washington, in particular, recently ruled against MERS in the arena of non-judicial foreclosures. The Court succinctly stated that, “if MERS does not hold the note, it is not a lawful beneficiary.(http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.s
This is so because Washington law defines the “beneficiary” as “the holder of the instrument or document evidencing the obligations secured by the deed of trust.” See RCW 61.24.005(2). Unfortunately, the Court could not go further to decide what the implications were of such a finding in the case at hand.
Similarly, the Supreme Court in Oregon recently accepted several certified questions regarding MERS, which may further clarify MERS’ role. The certified questions include: (1) whether MERS may act as a beneficiary; and (2) whether MERS may retain and transfer legal title to a trust deed as nominee for the lender, after a note secured by the trust deed is transferred from the lender to a successor(s) or series. Additionally, the Court will address the transfer of promissory notes and deeds of trusts. See http://media.oregonlive.com/business_impact/other/Order.pdf