New Florida Case Law Relating to MERS

August 21, 2010
By David Goldman on August 21, 2010 12:21 PM |

The case of Taylor v. Deutsche Bank National Trust Company decided in the 5th District of Florida has given us some new case law relating to the Mortgage Electronic Registration System (MERS). Mr. Taylor claimed that because the mortgage was not endorsed and did not have an allonge or a specific assignment that it was only payable to the original lender. He further argued that MERS assignee did not have the standing to foreclose on the home.

Unfortunately for Mr. Taylor the mortgage had a clause in it stating that MERS had the right to exercise any and all interests of the lender, including assigning the mortgage and foreclosing on the home. When MERS assigned the mortgage to Deutsche Bank, they assigned the "full benefit of all the powers" to Deutsche Bank. Therefore, the court held that because MERS had the power to foreclose on the home so did Deutsche Bank since they were assigned all of the rights that MERS previously possessed. The court agreed with a decision from the 2nd DCA in 2007 holding that MERS was not required to have a beneficial interest in the note in order to have standing in a foreclosure case.

There seem to be many things that could have been done to preserve the record or raise different issues on appeal, but because there was no transcript of some of the lower courts rulings it was difficult to see what happened. This is a reason it is important to have a court reporter at every hearing involved with a Florida Foreclosure Case.