Washington Supreme Court comes down on MERS

Yesterday the Washington Supreme Court issued its case in  the Certified Question of Bain v. Metropolitan Mortgage.

Here’s the Opinion.

The primary issue before the court was whether MERS can be a lawful beneficiary on a deed of trust, with the power to appoint trustees under the Washington Deed of Trust Act when it does not actually hold the promissory notes that secures the deed of trust.

The court held that only the actual holder of the promissory note evidencing the debt may be a beneficiary with the power to appoint a trustee to foreclose.  Or, as the court put it, “if MERS does not hold the note, it is not a lawful beneficiary.”

The court declined to answer what the legal effect is, if any, of a foreclosure, when MERS did foreclose as the beneficiary.

Our gut is that what is in the past is in the past, unless a borrower can prove fraud, or actual damages, based on Brown v. Household Realty, 146 Wn. App. 157, 189 P.3d
233 (2008) (holding that where the grantor of a deed of trust fails to invoke the remedies provided by the deed of trust act (ch. 61.24 RCW) before the deed is foreclosed in a trustee’s sale, the grantor waives claims based on the underlying obligation secured by the deed). But see RCW 61.24.127 which narrows Brown to some extent.

Leave a Reply