A lender that wants to register a newly originated mortgage (but not a co-op share loan) with MERS may prefer to designate MERS as the nominee for the beneficiary in the security instrument, thereby eliminating the need for a subsequent assignment of the security instrument should the lender sell (or transfer servicing of) the mortgage to another lender that is a member of MERS. In such cases, the applicable security instrument must be modified to:
show MERS as the nominee for the lender,
define and name the originating lender, and
obtain the borrower’s acknowledgment of MERS’ role in the mortgage transaction.
Changes that must be made to create a standard MERS security instrument for each jurisdiction may be found in the Instructions document for each state-specific security instrument (see Security Instruments), with the exception of loans secured by property located in certain geographic areas, as described below.
The lender is responsible for the accurate and timely preparation and recordation of the security instrument and any MERS-related documents required to be used in specific geographic areas. Lenders also must take all reasonable steps to ensure that the information on MERS is updated and accurate at all times.
Even when MERS is named as the nominee for the beneficiary in the security instrument, it has no beneficial interest in the mortgage. All actions that MERS takes with respect to a mortgage are based on the instructions initiated by the originating lender, Fannie Mae, or the servicer. The originating lender remains responsible for all of its Contractual Obligations and any liability that it or Fannie Mae incurs as a result of the MERS registration or any MERS transaction. In addition, the lender is solely responsible for any failure to comply with the provisions of its MERS Member Agreement, Rules, and Procedures and for any liability that it or Fannie Mae incurs as a result of the registration of the mortgage with MERS or any specific MERS transaction.
In the states listed below, lenders must use the Mortgage Electronic Registration Systems, Inc. Rider (MERS Rider) (Form 3158) when a newly originated mortgage loan will be registered with MERS. Lenders must also follow the Instructions to the MERS Rider and the applicable security instruments to make changes to the standard security instruments for the following states:
As the MERS Rider must be used in these specified states, post-closing assignments into MERS are prohibited.
MERS Assignment Form -- Maine
In the state of Maine, lenders must use the MERS Mortgage Assignment (Form 3749) to assign loans to MERS at origination or post-closing, as applicable. Mortgage loans in which the Maine security instrument has been modified to name MERS as the original mortgagee of record, solely as nominee for the lender, are ineligible for delivery to Fannie Mae.
If a lender registers a mortgage with MERS before delivering it to Fannie Mae, the lender must ensure that the Mortgage Identification Number (MIN) is registered in MERS and names itself as the investor. Additionally, the lender must include the MIN in the delivery data. After Fannie Mae purchases or securitizes the mortgage, Fannie Mae notifies MERS to update its records to reflect Fannie Mae’s ownership interest in the mortgage.
Note: For loans registered in MERS iRegistration where MERS is not named as the nominee for the beneficiary in the security instrument, the MERS MIN should not be reported on the loan schedules.
If a lender registers a mortgage with MERS after Fannie Mae has purchased or securitized the loan, the lender must name Fannie Mae as the investor during registration and notify MERS of Fannie Mae’s ownership interest in the mortgage. (The MIN will not have been included on the Loan Schedule or Schedule of Mortgages.)
For each MERS-registered mortgage, the lender must indicate the MIN on the security instrument and related documents, regardless of whether the lender retains the documents or sends them to Fannie Mae's DDC or to the applicable document custodian. Because the status of a MERS-registered mortgage can change, the lender is not required to include the MIN on the mortgage note. Additionally, the lender is still responsible for making sure that the document custodian has sufficient information to determine whether a mortgage that is included in a subsequent transfer of servicing is registered with MERS at the time of the transfer. The lender must have adequate controls in its processes to enable it to readily identify MERS-registered mortgages.
The lender can choose from the following options:
place the MIN on the note when the mortgage is registered with MERS and, if the MERS registration is subsequently terminated for any reason, notify the document custodian to delete the MIN from the note;
wait to advise the custodian of the status of the MERS registration for a mortgage until a change in status actually occurs; or
notify the custodian about the status of the MERS registration for a mortgage at the time of a servicing transfer by providing the custodian with a listing of all MERS-registered mortgages that are included in the transfer and a certification that any and all other mortgages included in the transfer are not currently registered with MERS. (The listing may be prepared by the lender or, with the lender’s authorization, by MERS.) If there are more MERS-registered mortgages included in the transfer than there are unregistered mortgages, the listing may instead identify the unregistered mortgages—and, in that case, the certification should state that any and all other mortgages included in the transfer are currently registered with MERS.
If the originating lender is the beneficiary for a mortgage that it registers with MERS, the lender must prepare an assignment of the mortgage to MERS. Refer to the section above, entitled Requirements for the Use of MERS in Specified Geographic Areas, for additional information about, and restrictions on, assignments of loans to MERS.
By delivering a MERS-registered mortgage to Fannie Mae, the lender:
warrants that MERS is the mortgagee of record (either by being named as an assignee in a recorded assignment of the security instrument or as nominee for the beneficiary in the security instrument);
warrants that the MIN is valid and properly registered in MERS naming the lender as the investor; and
agrees that, in the event that either its membership in MERS or the MERS registration for an active mortgage is terminated for any reason while Fannie Mae has an ownership interest in the mortgage, the servicer is responsible for preparing and recording an assignment of the mortgage from MERS to itself, and then preparing (in recordable form) an assignment of the mortgage from itself to Fannie Mae and delivering that assignment to Fannie Mae's DDC (or to the applicable document custodian).
Lenders are not required to include a copy of the assignment of the mortgage to MERS in the delivery package they submit to Fannie Mae's DDC or the applicable document custodian. Lenders also are not required to prepare and submit an unrecorded assignment of the mortgage from MERS to Fannie Mae (unless Fannie Mae specifies otherwise for a particular transaction or transactions).
The table below provides references to the Announcements that have been issued that are related to this topic.