In Re Agard - Another MERS Defeat

Here is a link to an Opinion and Memorandum from the Bankruptcy Court for the Eastern District of New York which was originally posted on Matt Weidner's blog.  The opinion is 37 pages and the judge painstakingly analyzes the arguments presented by MERS that is authorized to assign the mortgage.  It should be noted that MERS opened itself up to this adverse ruling by interjecting itself in the bankruptcy proceeding.  I doubt MERS will ever do that again.  From the opinion:

The documentation provided to the Court in this case (and the Court has no reason to believe that any further documentation exists), is stunningly inconsistent
with what the parties define as the facts of this case.
 
However, even if MERS had assigned the Mortgage acting on behalf of the entity which held the Note at the time of the assignment, this Court finds that MERS did not have authority, as “nominee” or agent, to assign the Mortgage absent a showing that it was given specific written directions by its principal.

This Court finds that MERS’s theory that it can act as a “common agent” for undisclosed principals is not support by the law. The relationship between MERS and its lenders and its distortion of its alleged “nominee” status was appropriately described by the Supreme Court of Kansas as follows: “The parties appear to have defined the word [nominee] in much the same way that the blind men of Indian legend described an elephant – their description depended on which part they were touching at any given time.” Landmark Nat’l Bank v. Kesler , 216 P.3d 158, 166-67 (Kan. 2010).

Conclusion

For all of the foregoing reasons, the Court finds that the Motion in this case should be granted. However, in all future cases which involve MERS, the moving party must show that it validly holds both the mortgage and the underlying note in order to prove standing before this Court.

[Emphasis added]