When the appellate decision in Taylor v. Deutsche Bank was published out of Florida’s 5th District Court of Appeals a few months ago, it seemed like an absolute disaster, an utter failure for all of us in the defense community. Well, like some especially sweet “failures”, when this “failure” is understood and studied properly, you can turn it into a slam dunk, knock out punch in your cases.
Here’s the deal. The decision is absolutely absurd. It represents a dramatic departure from not just a long history of property and the law governing negotiable instruments. It also represents a profound and dramatic expansion of the entire purpose and function of MERS. To me it represents a court desperately struggling to fix an industry’s problems through judicial decision.
The decision grants to MERS rights and abilities that it never intended to have and never before asserted. Especially in light of the depositions that have been released and the widespread abuses of the foreclosure mills, we can all see just how absurd this decision is.
The decision stands for the proposition that MERS can assign both the Mortgage and the Promissory Note, two separate and distinct legal documents that carry with them two separate and distinct sets of laws and rules (at least until this decision which improperly blended and blurred all of these).
Anywhoo, the Plaintiffs attorneys cheered and the foreclosure mills and the document mills have gone to work, just assigning away mortgages. (I guess they just abandoned all their endorsement stamps.) Well here’s where things get good for us. What happens when the Plaintiff has endorsed the note to one party, then they concoct or fabricate a MERS assignment to another party? That folks is s fundamental and unresolvable conflict that they cannot work their way out of.
So here’s how you use it in your cases…when you’ve got a note endorsed to one party and a MERS assignment to another, their case is over and you’ve got a great case for summary judgment.
