The California court of appeal has spoken! No more of the nonsense about MERS not having the ‘right’ to foreclose because it doesn’t hold the note.
In Gomes v. Countrywide Home Loans (decided last week) the court ruled that California’s Civil Code relating to non-judicial foreclosures, which specifically allows ‘an agent of the beneficiary’ to act in the beneficiary’s stead – and instructing the Trustee of a Deed of Trust to foreclose – is one of those permitted ‘acts.’
This takes away one of the MANY arguments that borrowers make in often futile attempts to prevent the inevitable.
I must say this is a great article i enjoyed reading it keep the good work 🙂
I have noticed that CAR has not really taken a position of broker liability in regards to disclosing the recent Massachusetts ruling that properties purchased with MERS as a closing agent do not have a right to foreclose, my question do we need to research each REO to determine if it was/is a MERS property and disclose to future buyers that an illegal foreclosure may have occurred resulting in a potential clouded title and the possibility that the old buyers may have a right to take the property back.
And curious, if BAC has the power to foreclose, if MERS was the servicing agent when loan was first originated through countrywide.
The rub here is that California law is DIFFERENT than that of most other states.
In CA, MERS is the “agent” of the Beneficiary, and Civil Code section 2924 allows the “agent” or nominee of the Bene to foreclose on the Bene’s behalf.
No “illegal” foreclosures on that point.