5/31/2001

The Appellate Division of the 2^nd Department issued a Temporary Retraining Order, compelling the Suffolk County Clerk to accept mortgages where MERS (Mortgage Electronic Registration Systems, Inc.) is identified, named or listed as the mortgagee or nominee for the Lender.

The TRO remains in effect until the Appellate Division issues an order on MERS’s application for a preliminary injunction that would compel the Suffolk County Clerk to accept MERS mortgages pending MERS’s appeal of the lower court order.

However, we do not know when the Appellate Division will render its determination on MERS’s application for the preliminary injunction. The Order to Show Cause on MERS’s application for the preliminary injunction is returnable before the Appellate Division on June 11, 2001. If the Appellate Division should render an off-the-bench decision which is adverse to MERS, then the TRO will terminate on June 11.

Therefore, no mortgage (or assignment of mortgage) may be insured on property located in SUFFOLK COUNTY in which MERS is identified, named or listed or appears as mortgagee or as nominee for the lender unless that mortgage (or assignment) can be fully recorded by June 11.

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5/18/2001

SAFE HARBOR TITLE HAS BEEN ADVISED BY THE SUFFOLK COUNTY CLERK NOT TO ACCEPT ANY MORTGAGES SHOWING MERS FOR RECORDING IN SUFFOLK COUNTY

The Suffolk County Clerk has advised us that we cannot accept any mortgages showing MERS or Mortgage Electronic Registration Systems, Inc. as mortgagee or nominee of the lender for recording. These cannot be recorded in Suffolk County. The injunction against the county has been lifted. The Attorney General has issued an Opinion (Number 2001-2) that mortgages showing MERS for recording purposes cannot be indexed against MERS. We do not presently know whether other county clerks will follow Suffolk's lead, however, we cannot insure any lender that their mortgage will be recorded in Suffolk County if MERS appears on the mortgage, even if the reference to MERS is crossed off or otherwise deleted.

UNDERWRITING BULLETIN 2001-10
RE: MERS-MORTGAGE ELECTRONIC REGISTRATION SYSTEMS: BRONX COUNTY, KINGS COUNTY, NEW YORK COUNTY and QUEENS COUNTY
DATE-. April 25, 2001

We have been advised by John Laraviere, the New York City Register, that mortgages in which MERS appears as the mortgagee, or nominee of the Lender, or as mortgagee for recording purposes will not be accepted for recording in any of his offices.

Therefore, until further notice, no mortgage affecting property wholly or partially in BRONX COUNTY, KINGS COUNTY, NEW YORK COUNTY or QUEENS COUNTY is to be insured in which MERS appears as the mortgagee, or as nominee of the Lender, or as the mortgagee for recording purposes.

We understand that you may have MERS mortgages to be recorded in those counties. We will advise you shortly of what needs to be done regarding those mortgages.

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UNDERWRITING BULLETIN 2001-09a SUPPLEMENTING 2001-09
SUBJECT: MERS - MORTGAGE ELECTRONIC REGISTRATION SYSTEMS SUFFOLK COUNTY
DATE: May 7, 2001

On April 17, 2001, the Suffolk County Clerk put out a memo indicating that mortgages in which MERS appears as the mortgagee, or nominee of the Lender, or as mortgagee for recording purposes will not be accepted for recording by his office.

The Suffolk County Clerk thereafter issued another memo indicating that the April 17 memo would not be implemented until May 1, 2001.

Subsequently, on May 2, 200, MERSCORP, Inc. and Mortgage Electronic Registration Systems, Inc. obtained a Temporary Restraining Order which requires the Suffolk County Clerk to accept for recording mortgages in which MERS is shown as the mortgagee until the determination of MERS request for a preliminary injunction. While the Order to Show Cause with Temporary Restraining Order, which is returnable on May 14, 2001, technically requires the Suffolk County Clerk to record MERS mortgages until the determination of MERS' request for a preliminary injunction, since we cannot tell when the Court will make that determination (which could be as early as the morning of May 14) the following guidelines are in effect:

You may close title, and insure without exception, a mortgage in which MERS appears as the mortgagee or nominee, PROVIDED THAT THE MORTGAGE CAN BE AND IS RECORDED NO LATER THAN THE END OF THE SUFFOLK COUNTY CLERK'S BUSINESS DAY ON FRIDAY, MAY 11, 2001. In this regard, please take into consideration the processing time within the various Suffolk County offices, which includes the tax map verification process. Mere delivery to the Suffolk County Clerk by the end of thd day on May 11, 2001 is not sufficient.

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UNDERWRITING BULLETIN 2001-09
RE: MERS ELECTRONIC REGISTRATION SYSTEMS SUFFOLK COUNTY
DATE: April 25, 2001

On April 17, 2001, the Suffolk County Clerk put out a memo indicating that mortgages in which MERS appears as the mortgagee, or nominee of the Lender, or as mortgagee for recording purposes will not be accepted for recording by his office.

The Suffolk County Clerk has just issued another memo indicating that the April 17 memo will not be implemented until May 1, 2001.

Therefore, until further notice, no mortgage affecting property wholly or partially in SUFFOLK COUNTY is to be insured in which MERS appears as the mortgagee, or as nominee of the Lender, or as the mortgagee for recording purposes.

On all Suffolk County titles that you have already closed, ALL MORTGAGES IN WHICH MERS APPEARS AS MORTGAGEE, OR AS NOMINEE OF THE LENDER, OR AS THE MORTGAGEE FOR RECORDING PURPOSES MUST BE DELIVERED TO AND RECEIVED BY THE SUFFOLK COUNTY CLERK'S OFFICE NO LATER THAN THE END OF THE CLERK'S BUSINESS DAY ON APRIL 30, 2001. If you have any questions or believe that you will encounter difficulties in getting the MERS mortgages to the Suffolk County Clerk's office by April 30, 2001, please call this office immediately.

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FROM: Edward P. Romaine Suffolk County Clerk
DATE: April 17, 2001

I recently received correspondence from the County Attorney in regard to an informal opinion of the Attorney General concerning MERS (Mortgage Electronic Recording Systems, Inc.). The County Attorney, based upon the informal opinion of the Attorney General has advised this office to cease recording documents with MERS as the mortgagee of record where MERS is not the actual mortgagee and/or holds no legal interest in that mortgage for the following reasons.

The language "for purposes of recording MERS as the mortgagee of record" violates New York State Real Property Law Section 316 in that the "law requires the County Clerk to index a mortgage by mortgagor and mortgagee. MERS has no legal interest in the mortgage it seeks to record; it can be neither mortgagor nor mortgagee.

Secondly, MERS' effort to designate itself as mortgagee solely for recording purposes undermines and frustrates the legislative intent of the Real Property laws recording provisions. MERS' actions frustrate the meaning and intent of the law by complicating the constructive notice elements of the statute (Attorney General Opinion 2001-02), As a result of the above mentioned directive of the County Attorney, our department will no longer accept instruments where MERS is listed as the mortgagee or nominee of record unless MERS, in fact, is the actual mortgagee.

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