In the latest chapter in an extended legal battle over robosigning, Mortgage Electronic Registration Systems, Inc. (MERS), and other industry participants convinced an Arizona federal court last month to deny several homeowners’ demand for class certification. The ruling leaves the plaintiffs’ case in disarray and is well-reasoned enough to deter future copy-cat lawsuits.
The case, In re Mortgage Electronic Registration Systems (MERS) Litigation, began as a multi-district proceeding. It originally included claims from consumers in Arizona, Nevada, Oregon, and South Carolina. After the trial court dismissed all pending causes of action, the United States Court of Appeals for the Ninth Circuit reversed and revived one count, which alleged violations of Arizona law. According to the appellate tribunal, the plaintiffs had asserted a viable claim based on MERS’s supposed practice of recording instruments that had been robosigned or that contained false statements.
On remand, the lower court found that the plaintiffs had not met their burden to justify certification of classes of Arizona consumers. Dooming the plaintiffs’ effort was their inability to identify class members without having to analyze recorded documents for each property, the trial court held. An expert the homeowners retained opined about assignments of deeds of trust, but he never analyzed which instruments had been robosigned or which included factual misrepresentations.
The strength of the ruling arises from the degree to which the court held the plaintiffs to their pleaded theory and to the limits of their statistical evidence. The plaintiffs’ counsel evidently concluded that they could not prevail on their original theories, hoping instead to confuse the judge with the scope of their 18-page single remaining count.
At this point, the plaintiffs may still have winning claims, but for only their individual transactions. This recent ruling leaves no evident gaps that other homeowners can readily exploit for class-certification purposes. Thus, MERS may have finally brought an end to this legal saga.