Moving Beyond the Mistakes of MERS to a Secure and Profitable National Title System

Volume 26 No. 4

by

Adam Leitman Bailey is the principal of Adam Leitman Bailey, P.C., in New York, New York. Dov Treiman is a partner in the New York, New York, office of Adam Leitman Bailey, P.C.

In Homer’s Odyssey, Odysseus is called on to sail his crew through the Straits of Messina, passing between two legendary monsters, Scylla and Charybdis. To avoid one, the only option was to approach the other, risking a horrible death in either instance. Odysseus was at times a wise captain and managed to minimize the number of deaths, if not to avoid them altogether.

Thanks to the still-writhing tendrils of the economic collapse of 2008, most of the nation is caught between, on the one hand, the Scylla of further economic collapse by making the foreclosure procedure so difficult that banks refuse to make residential mortgage loans, and, on the other, the Charybdis of wholesale ejectment of homeowners from houses they should not have purchased. Tightening the foreclosure rules threatens economic destruction from the top down; loosening them threatens that destruction from the bottom up.

There can be no doubt that any action taken, including complete inaction, threatens to thrust enormous hardship onto thousands, if not millions of people. Exacerbating the problem, there is no Odysseus in this story. In other words, there is no one to captain the ship to safety.

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