© 2011, Rockwell P. Ludden. All rights reserved.This paper may be quoted in whole or in part, provided that attribution is given to its author. Except where otherwisestated, the views it contains are solely the opinions of the author. Comments and corrections may be addressed firstname.lastname@example.org.
This Security Instrument secures to Lender; (i) the repayment of the Loan, and all renew-als, extensions and modifications of the Note; and (ii) the performance of Borrower’scovenants and agreements under this Security Instrument and the Note. For this purpose,Borrower does hereby mortgage, grant and convey to MERS (solely as nominee forLender And Lender’s successors and assigns) and to the successors and assigns of MERS,
with power of sale, the following described property . . .The Borrower understands and agrees that MERS holds only legal title to the interestsgranted by Borrower in this Security Instrument, but, if necessary to comply with law orcustom, MERS (as nominee for Lender And Lender’s successors and assigns) has theright: to exercise any or all of those interests, including, but not limited to, the right toforeclose and sell the Property; and to take any action required of Lender including, butnot limited to, releasing and canceling this Security Instrument.These are the only references to MERS in the entire mortgage—a few lines set againstpage after page of boilerplate describing the
rights and the
obligations withregard to the secured property.
Though they are drafted with just enough clarity to give MERSthe authority to play its various roles, they are also possessed of just enough ambiguity to obscurethe fact that they are irreconcilable and to some extent in conflict with the mortgage instrument asa whole. Together they form, despite the best-laid schemes of mice and the mortgage industry, akind of shell game, in effect an attempt to shoehorn into the framework of existing law a novel“person” or “creature” existing law simply cannot embrace at this time but by the most sophisti-cal course of reasoning.
MERS as agent for the mortgagee.
We are told in all three sentences that MERS “is actingsolely as nominee for Lender and Lender’s successors and assigns.”
But nowhere in the mort-gage is the term “nominee” defined. Black’s Law Dictionary tells us that a nominee is “[a] per-son designated to act in place of another, usu[ally] in a very limited way,” and as “[a] party whoholds bare legal title for the benefit of others or who receives and distributes funds for the benefitof others.”
An earlier edition of Black’s defined the term as “one designated to act for another ashis representative in a rather limited sense. It is used sometimes to signify an agent or trustee. Ithas no connotation, however, other than that of acting for another, in representation of another, oras the grantee of another.”
The Massachusetts courts have similarly defined the term as indicat-
The relative promissory note contains no mention of MERS whatsoever.
The sentence is facially illogical. To say that MERS
as the nominee for the lender’s successorsand assigns is to suggest that such successors and assigns already exist, in which case the lender named in the mortgagewould have already divested itself of any interest in the underlying obligation. On the other hand, if they do not yetexist, we cannot assume, without more, that MERS would be authorized to act as
nominee as well since they arenot parties to the mortgage instrument. The point is that some courts haveHad the sentence not contained the words “and Lender’s successors and assigns” it might have meant eitherthat MERS is acting
solely as nominee,
or that it is acting solely as nominee
for the lender.
The inclusion of “succes-sors and assigns” logically limits us to the former interpretation.
ed. 2009) (emphasis added).
Marron, Case 10-45395(Bankr. D. Mass. filed June 29, 2011) (citing Black’s 2009 definition of “nominee”).
ed. 1979) (emphasis added).