31 N. Ill. U. L. Rev. i (2010-2011)

handle is hein.journals/niulr31 and id is 1 raw text is: Northern Illinois University
Law Review
Volume 31                        Fall 2010                        Number 1
ARTICLES
Clarifying Murky MERS: Does Mortgage Electronic Registration
Systems, Inc., Have Authority to Assign the Mortgage Note in a
Standard Illinois Foreclosure Action?
Kevin M. Hudspeth                            ................................1
As the number of mortgage foreclosure actions has substantially
increased over recent years, legal scrutiny of the mortgage foreclo-
sure process has likewise increased. The question of whether a little
known corporation called Mortgage Electronic Registration Systems,
Incorporated (MERS) has authority to assign the promissory note
secured by a mortgage has become an important question faced by
courts in recent months and years.
Due to the frequency with which mortgage notes are traded on the
secondary mortgage market, the plaintiff in a mortgage foreclosure
action is rarely the same party who originated the loan. Under
Illinois law, the party entitled to enforce the promissory note secured
by a mortgage is the proper plaintiff in a mortgage foreclosure
action. Many foreclosure plaintiffs in Illinois use assignments of the
mortgage and note executed by MERS to demonstrate their right to
foreclose the mortgage. But MERS is only named as the mortgagee
of record in the mortgage itself it has no authority to assign the
note.
Nevertheless, regardless of whether MERS has authority to assign a
mortgage note, a plaintiff may still foreclose by establishing its right
to enforce the note under the Uniform Commercial Code (UCC),
which can be done by demonstrating possession of an indorsed note
or by proving the transaction through which the plaintiff acquired its
rights. Ultimately, plaintiffs in mortgage foreclosure actions should
focus on establishing their right to enforce the note under the UCC
rather than relying on the sometimes murky legal concept of MERS.
The Law of Citations and Seriatim Opinions: Were the Ancient Romans
and the Early Supreme Court on the Right Track?
Joshua M. Austin         ....................................19
This article explores the oft forgotten and somewhat misunderstood
ancient Roman law methodology known as the Lex Citandi, or Law
of Citations. The Law of Citations was a relatively simple theory in
which authority was given to the writings offive key jurists from the
classical period of Roman law, and the majority won the day. Thus,
in a way, the method of separate opinions was born. It was a theory
revisited by our Supreme Court in its early days through seriatim, or
separate, opinions; and perhaps still seen today in the modern day

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