Robetson v. MERSCORP, Inc., 141 So. 3d 984

Two mandamus petitions seek review of denials of motions to dismiss for lack of standing and subject-matter jurisdiction, consolidated for one opinion.
Case no. 1111567: Walker County, on behalf of a putative class of Alabama counties, sues U.S. Bank to recover recorded-fee-related damages and for declaratory, injunctive, and monetary relief in Barbour or Walker County courts depending on case.
Case no. 1111370: Barbour Probate Judge Robertson, in official capacity, sues MERSCORP and MERS on behalf of all Alabama probate judges for declaratory, injunctive, and monetary relief related to recording statutes.
Core issue involves mortgage securitization, the role of MERS as nominee, and the recording of assignments in county records under Alabama recording statutes.
MERS defendants argued lack of standing due to no private cause of action under recording statutes; U.S. Bank argued probate judge has no injury or right to fees from non-recorded assignments.
Trial courts denied motions to dismiss; mandamus petitions argued that standing challenges implicate subject-matter jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether standing challenges to recording-statute claims implicate jurisdiction	Robertson: injury from lost recording fees; Barbour County interest supports standing	MERS/US Bank: no duty to record; statutes do not create private rights; no standing	standing issues collapse into cause-of-action viability; not jurisdiction
Whether the petitions fall within the limited subject-matter-jurisdiction exception to mandamus review	petitions rely on standing to invoke jurisdiction	no jurisdictional defect; theories viability is not standing	no mandamus relief; exception not met
Whether the recording statutes create a private right of action for probate judges or counties	statutes protect recording fees and conveyance interests; injury to counties/Judge Robertson	statutes do not impose a private duty or create a private right of action	court rejects private-right-of-action theory; not deciding merits of theory
Whether the petitions effectively challenge the viability of plaintiffs’ legal theories rather than standing	theory implicates injury from failure to record	theories are not cognizable under Alabama law	the issues are action/claim-viability, not justiciability; deny mandamus

Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216 (Ala.2010) (standing vs. cause-of-action distinction clarified)
Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959 (Ala.2011) (standing is not a substitute for cogent cause-of-action analysis)
Ex parte Health-South Corp., 974 So.2d 288 (Ala.2007) (narrow standing exception for jurisdictional review when appropriate)
Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758 (Ala.2002) (denial of mandamus as review when adequate remedy exists by appeal)
Bond v. United States, 131 S. Ct. 2355 (U.S.2011) (distinguishes standing questions from merits/causes of action)