In an opinion yesterday, Judge Oetken denied a partial summary judgment motion by two homeowners seeking to void the mortgage on their home. The mortgage rights associated with their home loan may have been assigned through the Mortgage Electronic Registration Systems, Inc., or “MERS,” but the evidence about whether or to whom the assignment occurred was unclear. Judge Oetken denied summary judgment because, despite the confusion as to who owned the plaintiffs’ mortgage, it was clear that it was owned by somebody, and thus could not be declared void:
[B]ecause Plaintiffs secured their Note with a mortgage, and because mortgage rights follow that Note by operation of law, therefore, even if the Note has descended into a bankruptcy-entangled morass of questionable provenance, the right to foreclose follows that Note, like Orpheus to Eurydice, even into the depths of clouded title. [Footnote: Perhaps it is also possible that if we turn to look too closely upon the Note, it too will vanish.] Plaintiffs have asked for a declaration that the mortgage is invalid and cannot be enforced by any entity. However, each party has set forth facts that would give some Defendant the right to enforce the Mortgage . . . . Questions of fact remain, to be sure, but they are not material to the relief sought on summary judgment; under either version of the facts, Plaintiffs’ motion fails.