Search             Print this page     Email a friend

Mortgage Servicers must be Named as Plaintiffs in MERS Foreclosures in Connecticut

by Thomas Farrell
Hunt Leibert, PC

The Connecticut Superior Court has recently issued a “rule” for determining the proper plaintiff in a foreclosure when MERS holds the mortgage. The court “rule” essentially requires that the plaintiff in a MERS foreclosure must be the holder of the promissory note. While the rule was informally adopted by the foreclosure judges and does not have the binding effect of a statute or case law, most of the foreclosure judges in the state have expressed their intent to enforce the rule.

This rule is based on a 2003 Connecticut appellate court determination that a mortgagee, who had been assigned a mortgage but not the underlying note, lacked standing to bring a foreclosure action. [Fleet National Bank v. Nazareth, 75 Conn. App. 791 (Conn. App. 2003)]

In order to comply with the recent court rule, MERS foreclosures in Connecticut will now have to be commenced in the name of the current servicer of the loan, because the servicer is the constructive holder of the note.  Additionally, the MERS mortgage will have to be assigned from MERS to the servicer before the case proceeds to judgment. This will ensure that the named party plaintiff holds both the note and mortgage when the case advances to judgment.