This follows-up last week’s post regarding the Citimortgage opinion, which circumvented two foreclosure statutes that supported a conclusion opposite of the one the Court reached. The result preserved the lien rights of the purported senior mortgagee, Citimortgage, even though Citimortgage did not record its assignment of mortgage until months after the subject real estate had been sold at a sheriff’s sale. How? Citimortgage had an “ace in the hole” – Mortgage Electronic Registration Systems, Inc. (“MERS”).
Section 1 problem. The Court wrestled with the applicability of Ind. Code § 32-29-8-1 (“Section 1”), which governs who should be named when a plaintiff seeks to extinguish a mortgage. That statute currently identifies two options as to whom to sue:
If a suit is brought to foreclose a mortgage, the  mortgagee or an  assignee shown on the record to hold an interest in the mortgage shall be named as a defendant.
Citimortgage argued that MERS was statutorily entitled to notice under that provision as a “mortgagee.” The Court stated “that is a bridge too far.” The Court found that MERS was neither the mortgagee itself nor the assignee of the mortgage. Yet Citimortgage prevailed.
Section 1 solution. The Court plowed new ground by determining that the mortgage designated MERS as the agent of Citimortgage and that MERS as agent was entitled to notice:
Ultimately, we do not believe that the authors of the original version of [Indiana Code § 32-29-8-1], writing in 1877, would have understood the term “mortgagee” to include an entity like MERS that neither holds title to the note nor enjoys a right of repayment. Thus, our decision here should not be taken to mean that MERS is a “mortgagee” as the term is used in Indiana Code § 32-29-8-1. All we hold today is that because Citimortgage never received proper notice of the foreclosure proceeding, it lay beyond the jurisdiction of the trial court, and the default judgment is thus void as to Citimortgage’s interest in the Madison County property.
One might interpret Citimortgage to say that Section 1 includes a third option as to whom to sue: a nominee (agent) of the mortgagee.
Section 2 problem. Citimortgage avoided the impact of I.C. § 32-29-8-2(1) (“Section 2”), which states that “a person who is assigned a mortgage and fails to have the assignment properly placed on the mortgage record . . . is bound by the court’s judgment or decree as if the person were a party to the suit.” At some point, Citimortgage apparently became the assignee of Irwin but evidently did not record the assignment until after ReCasa obtained a judgment (and flipped the house to Sanders). Yet Citimortgage prevailed.
Section 2 solution. The Citimortgage decision carves out an exception to the recording requirement in Section 2 when the mortgage identifies MERS. The plaintiff must name MERS “as nominee” of the identified lender. The Court’s rationale appears to be based upon the premise that MERS - identified in the mortgage - is shown on the record to hold an interest in the mortgage.
Statutory amendments coming? In its opinion, the Court poked Indiana’s legislature about changing I.C. § 32-29-8:
We note in closing that it is both difficult and undesirable to apply such superannuated statues to the modern mortgage industry. The drafters of the original 1877 version of Indiana Code § 32-29-8-1 envisioned a drama for two, or at most three, actors: Borrower, Mortgagee, and possibly Assignee. They could not have imagined our present-day multi-trillion-dollar international mortgage market. The statute that they drafted, and under which Indiana mortgage transactions still take place, thus leaves unaddressed many issues important to contemporary practice. We recognize that the General Assembly may soon find it necessary to modernize the statutory script to accommodate this new and larger cast of characters.
How the Indiana General Assembly will tweak Sections 1 or 2, if at all, is guesswork. Perhaps MERS itself will be written into the statute, or maybe the statute will define “nominee” and add such a party as an option for whom to sue. Something should be done, and Section 3 should be included in any amendment.
Name MERS. What we do know in the wake of Citimortgage is that, under Indiana law, MERS “as nominee” is the actual mortgagee’s agent for service of process. When a mortgage identifies MERS “as nominee,” the plaintiff creditor must name MERS as a defendant in any foreclosure action and serve MERS with a summons and complaint. To be safe, both the identified lender and MERS should be named in the suit.
Next week I’ll address what some may feel to be a flaw with the Court’s ultimate finding.