Cervantes v. Countrywide Home Loans

In order to state a claim for the use of MERS under the Truth in Lending Act 15 U.S.C. § 1601, a plaintiff must allege that detrimental reliance upon misrepresentations about the Mortgage Electronic Registration System (“MERS”) caused damages to the plaintiff.

Cervantes, along with Almendarez and Maximo, brought suit against Countrywide and others alleging: fraud, violation of the Truth in Lending Act 15 U.S.C. § 1601, violation of the Arizona Consumer Fraud Act Ariz. Rev. Stat. § 44-1522, and intentional infliction of emotional distress. The plaintiffs had signed promissory notes with their lenders. And had each “executed a deed of trust in favor of the lender that named” the Mortgage Electronic Registration System (“MERS”) “as the ‘beneficiary’ and as the ‘nominee’ for the lender and lender’s ‘successors and assigns.’” MERS then served as a nominal record holder of the deed, so that transfers between the original lender and subsequent lenders did not need to be recorded with the government. The district court dismissed the plaintiff’s complaint without leave to amend. The Ninth Circuit reasoned that the complaint failed to show that: (1) the “alleged illegalities associated with the MERS system injured them or violated state law,” (2) they detrimentally relied upon any misrepresentations about MERS, (3) there was any basis for tolling the statutes of limitations on their claims, and (4) that there was any extreme or outrageous conduct supporting their claim of intentional infliction of emotional harm. The Ninth Circuit further reasoned that the amended complaint did not remedy the shortcomings of the original complaint. The Ninth Circuit held that “the district court properly dismissed the plaintiff’s First Amended Complaint without leave to amend.” AFFIRMED.