June 19, 2012
MERS, as nominee beneficiary, has the power to assign its interest under a deed of trust. Even assuming plaintiffs can allege specific facts showing that MERS' assignment of was void, plaintiffs in a suit for wrongful foreclosure are required to demonstrate the alleged imperfection in the foreclosure process was prejudicial to the plaintiff's interests. Not only did plaintiffs fail to show prejudice, but if MERS lacked the authority to assign the deed of trust, the true victim would not be the plaintiffs, who were admittedly in default, but the lender whose deed of trust was improperly assigned. Finally, Civil Code Section 2932.5, requiring recordation of an assignment of a mortgage, applies only to mortgages that give a power of sale to the creditor, not to deeds of trust which grant a power of sale to the trustee.
Cal.App. 4th Dist., Div. 2 (E052943) 5/17/12