Kansas Court Upholds MERS as Acting Agent in Foreclosure Case

The Kansas Court of Appeals ruled in favor of U.S. Bank and rejected an appeal of wrongful foreclosure by a borrower, ""MERSCORP Holdings, Inc."":http://www.mersinc.org/ announced in June.

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The borrower in the case titled U.S. Bank vs. Howie argued that MERS split the mortgage and the note, making the foreclosure invalid.

Judge Tom Malone rejected the borrower's claim.

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""We conclude that the plain language of the Mortgage herein provided sufficient and undisputed evidence that MERS was acting as an agent of U.S. Bank at all relevant times,"" Judge Malone wrote on behalf of the three-judge panel. ""Because MERS was acting as an agent of U.S. Bank, the Mortgage and the Note were never severed and U.S. Bank, as present holder of both the Note and the Mortgage, was entitled to foreclose on the Mortgage.""

The borrower relied on a previous decision stemming from the case Landmark vs. Kesler. However, the Court of Appeals said the decision from the Kansas Supreme Court regarding that specific case did not address whether the mortgage and note were split, but was limited to matters surrounding Kansas civil procedure.

""This Kansas Court of Appeals ruling mirrors five other rulings from the United States Bankruptcy Court for the District of Kansas, all of which said that the note and mortgage were never split because MERS is an agent of the note holder,"" said MERSCORP Holdings VP of Corporate Communications, Janis L. Smith. ""This failed and meritless theory has been solidly rejected in Kansas. Furthermore, the Court of Appeal's distinguishing of Landmark supports what we have long argued, that Landmark does not support the argument that MERS mortgages are unenforceable.""