Fuller v. Mortgage Electronic Registration Systems, Inc.
2012 U.S. Dist. LEXIS 123320
M.D. Fla.2012Background
- Old problem: reconciling modern recording technology with traditional public records framework.
- Plaintiff Florida Clerks allege MERS privately records mortgage interests, depriving clerks of statutory recording fees.
- MERS purportedly acts as mortgagee of record without owning or lending money; system hides true ownership and reduces public notice.
- Statutory framework: Fla. Stat. §28.222 creates recording duties; §28.24 authorizes a recording service fee; no private right of action is explicitly created by §28.222.
- Plaintiff asserts six common-law counts (quo warranto, injunctive relief, civil conspiracy, unjust enrichment, fraudulent misrepresentation, negligent misrepresentation) premised on alleged statutory violations and misrepresentation by MERS.
- Court granted motion to dismiss, holding no private remedy under §28.222, and dismissal with prejudice across counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §28.222 creates a private right of action | Plaintiff relies on common law claims; §28.222 provides duties, not remedy | Statute lacks private remedy; common-law claims cannot hinge on it | No private right of action under §28.222; claims premised on it fail |
| Whether plaintiff has standing to sue | Alleges injury to public-records duties and lost fees | Standing exists only if injury in fact is cognizable and traceable | Plaintiff has Article III injury but lacks statutory right to sue; standing defenses succeed on merits |
| Whether the common-law counts survive without a statutory remedy | Counts are independent of §28.222 | Common-law claims premised on statute fail when statute lacks private remedy | Counts I–VI fail; all claims dismissed with prejudice |
| Whether MERS’ status as mortgagee and its record practices violate Florida law | MERS misrepresented as mortgagee to undermine public records | Recording is ministerial, not mandatory; misrepresentation claim fails as law permits or recognizes MERS designation | No violation actionable as common-law or statutory basis; dismissal with prejudice |
| Remedy provided | Dismissal with prejudice; judgment for Defendant |
Key Cases Cited
- Mortgage Electronic Registration Systems, Inc. v. Azize, 965 So.2d 151 (Fla. 2d DCA 2007) (MERS standing when designated mortgagee; private remedy not required for foreclosure standing)
- Mortgage Electronic Registration Systems, Inc. v. Revoredo, 955 So.2d 33 (Fla. 3d DCA 2007) (Adopts Azize; MERS standing to foreclose affirmatively recognized)
- Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010) (MERS can be mortgagee of record; lack of beneficial ownership in note not fatal to designation)
- Trent v. Mortgage Electronic Registration Systems, Inc., 618 F.Supp.2d 1356 (M.D. Fla. 2007) (MERS can have standing to foreclose; lender/creditor distinction does not defeat)