Frequently Asked Questions on the Kansas Supreme Court Ruling

Q: Can you sum up the ruling?

A: On August 28, 2009, the Kansas Supreme Court issued a decision in the case of Landmark National Bank v. Boyd A. Kesler. Our involvement with this case stemmed from the fact that we did not receive notice of the lawsuit which we were entitled to receive. The Kansas Supreme Court, who did not want to reopen a case that had already been decided by a lower court, went out of its way to write a narrow opinion that had more to do with finality of judgments than it did with MERS. This case was not a MERS foreclosure nor was it about our standing to foreclose.

Q: What does the ruling mean?

A: MERS can continue to foreclose and is entitled to receive notice when MERS is the mortgagee because the Court did not say otherwise. In fact, the Court went out of its way to emphasize the narrow scope of its ruling by stating: “Even if MERS was technically entitled to notice and service in the initial foreclosure action—an issue that we do not decide at this time…” Moreover, foreclosures can continue to be prosecuted in the name of MERS because the Court made no mention of this issue.

Q: How will the ruling affect the operations of your members?

A: The decision is actually quite limited in its scope and as such should have little effect on the day-to-day operations of MERS members. However, we do believe that the ruling is confusing and goes against longstanding precedent.  This is not the end of the judicial process.