Foreclosure by Advertisement, Part II

November 10’s posting, below, predicted that the Michigan Supreme Court would deny leave to appeal from a decision regarding MERS’ right to foreclose by advertisement. As a lifetime Michigan resident, one should have known better to try to predict a Supreme Court’s decision. Doing so is like trying to predict our Great Lakes-influenced weather.

On November 16, on a 4-3 partisan vote, the conservative majority voted to summarily reverse the Court of Appeals and found that MERS, as the “owner of an interest in the indebtedness,” owned a security lien on the properties and for that reason MERS was authorized to foreclose by advertisement.

The November 10 posting had observed that at least one of the oral arguments failed to unambiguously and clearly respond to some of the Justices’ questions about the nature of MERS’ legal interest. The recent ruling answered that question and also proved that the majority of the Court will do what it does regardless of counsel’s responsiveness to the Justices’ questions.

The 3 so-called liberal justices voted to grant the application for leave to appeal rather than summarily dispose of this significant matter. Doing so would have allowed the parties an opportunity to write and file briefs which may have provided the Court with further guidance on the parties’ respective positions and would have afforded the Court with some additional time to consider the matter. However, the 4 member majority exercised its prerogative and summarily ordered that MERS had the authority to foreclose by advertisement. The Court’s practice of summarily resolving significant matters may be the topic of a future posting.

The effect of the Court’s order upon the many pending federal and state court lawsuits based arising out of a number of MERS foreclosures in a variety of factual situations remains to be seen. Stay tuned!

For more information, please contact Lansing Attorney, Michael Perry at or 517-377-0846 or visit us at Fraser Trebilcock.

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