Tax Lien Purchasers Must Give MERS Notice, Says Arizona Appeals Court

by Snell & Wilmer

Recognizing MERS’s role in modern day mortgage lending, the Arizona Court of Appeals confirmed in Delo v. GMAC Mortgage, LLC that tax lien purchasers must notify MERS when identified in the Deed of Trust before foreclosing on real property. 

In this case, Delo purchased a tax lien in 2007. After the redemption period passed, Delo filed a tax lien foreclosure action naming only the original mortgage lender and the homeowners, even though the Deed of Trust identified MERS as the record beneficiary. The original lender was no longer in business, and the homeowners, who were already in default on their mortgage loan, failed to appear. The court accordingly entered a default judgment for Delo, who then obtained a Treasurer’s Deed for the property. In the meantime, the property was sold at a trustee’s sale. GMAC was the successful bidder, acquiring the property by credit bid.

Delo then sued GMAC to quiet title. Following cross-motions for summary judgment, the trial court entered judgment for Delo finding that GMAC’s interest in the property was not recorded as of the date of the foreclosure action, and the recorded lis pendens put GMAC on notice of the need to intervene in the foreclosure action to protect its interest. As to MERS, Delo argued that he was not required to give it notice, because MERS was only an agent of the original lender, whom he named and defaulted in the prior foreclosure action.

MERS, who was not made aware of the quiet title action, or the prior foreclosure action, until after the quiet title judgment issued, sought to appeal the quiet title judgment as an aggrieved nonparty. The Court of Appeals permitted MERS to appeal, and also permitted it to intervene in GMAC’s appeal. Following briefing and argument, the Court of Appeals sided with MERS and GMAC, and reversed, directing the trial court to enter judgment in favor of GMAC, on the basis of the references to MERS in the Deed of Trust.

In reversing, the Court of Appeals noted that equity favors redemption, and twice observed that Delo’s pre-foreclosure title search revealed MERS’s interest in the real property. Yet, Delo chose not to join MERS in the foreclosure action even though “the Deed of Trust not only expressly identifies MERS as the nominee for the lender, but also as beneficiary, and the holder of legal title to the property.” MERS’s interests, the Court of Appeals observed, “protected the interests of [GMAC].” The burden was not on GMAC to intervene in the foreclosure action, as Delo argued, but “rather on Delo to ascertain those with a legal or equitable interest in the property.”

Accordingly, the Court of Appeals held that “those who purchase tax liens and seek to foreclose on them must give MERS notice of the foreclosure proceedings when they are identified in the Deed of Trust.”

This is an important decision for the mortgage lending industry, because it validates the expectations of secondary mortgage market participants that their property interests are protected through MERS’s role as holder of the security instrument entitled to notice of all legal proceedings.  Delo v. GMAC Mortgage, LLC also provides clarity to tax lien purchasers and others of their notice obligations when foreclosing.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Snell & Wilmer | Attorney Advertising

Written by:

Snell & Wilmer

Snell & Wilmer on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.