From his Salt Lake City office, Real Estate Attorney Walter Keane provides insight on the recent ruling by the Utah court of appeals which rejected the “split-the-note” argument.
On July 14, 2011, the Utah court of appeals issued Commonwealth Property Advocates, LLC vs. Mortgage Electronic Registration System, Inc. (MERS), 2011 UT App 232 (July 14, 2011). Keane says he found out about the ruling on July 15th during a court hearing in which Keane was arguing a quiet title cause of action based on “split-the-note.”
Keane, who recently taught a seminar for Utah Attorneys regarding his successful Foreclosure Defense strategies, explained that the “split the note” argument asserts that because MERS holds the trust deed (and the promissory note is held by an unknown third party due to securitization), the trust deed has been “split from the note.” This concept was first articulated in Carpenter v. Longan, 83 U.S. 271 (1872). Keane has based several of his cases upon this argument, and has been successful in using it to nullify trust deeds in Utah.
The Commonwealth opinion specifically addresses the “split the note” argument and fully rejected it. Following the rationale of the Utah United States district courts, the Commonwealth Court reasoned in Utah Code
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