Property Law Developments—Joseph William Singer

The Idaho Supreme Court endorsed the power of MERS (Mortgage Electronic Registration Systems) to initiate nonjudicial foreclosure proceedings. Edwards v. Mortg. Elec. Registration Sys. Inc., 300 P.3d 43 (Idaho 2013).The court held that MERS was an agent (nominee) for the actual lender and holder of the beneficial interest in the deed of trust and could act on behalf of its principal. The original deed of trust named Alliance Title as trustee, Lehman Brothers as the lender, and MERS as the beneficiary as nominee for the lender. After MERS substituted a new trustee, the borrower defaulted and the new trustee filed a notice of default to begin foreclosure proceedings. Although the court held that MERS could not be the beneficiary (since no debt was owed to it), MERS could be an agent for the beneficiary (in this case, Lehman Brothers). As agent for the beneficiary, MERS had legal authority to record the notice of default, appoint a new trustee, and initiate foreclosure proceedings.