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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 14

- 4315

_____________

MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS, By and Through Nancy J. Becker, In Her Official Capacity as the Recorder o f Deeds of Montgomery County, Pennsylvania, On Its Own Behalf and On Behalf of All Others Similarly Situated

v.

MERSCORP INC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC, Appellants

_____________

APPE AL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN D ISTRICT OF

PENNSYLVANIA (D.C. Civil No. 11

- cv

- 06968 ) District Judge: Honorable J. Curtis Joyner

____________

Argued: June 2 5 , 2015

____________

Before: CHAGARES, KRAUSE and BARRY, Circuit Judges

(Opinion Filed: August 3, 2015 )

____________

Robert M. Brochin, Esq. ( Argued ) Brian M. Ercole, Esq. Morgan, Lewis & Bockius 200 South Biscayne Boulevard

5300 Southeast Financial Center Miami, FL 331312 - AND

Peter Buscemi, Esq. Morgan, Lewis & Bockius 1111 Pennsylvania Avenue, N.W.

Suite 800 North Washington, DC 20004

- AND

Franco A. Corrado, Esq. Joseph B.G. Fay, Esq. Morgan, Lewis & Bockius

1701 Market Street Philadelphia, PA 19103

- AND

Nicholas C. Vance, Esq.

GlaxoSmithKline

5 Crescent Dr ive Navy Yard Corporate Center Philadelphia, PA 19112

- AND

Andrew C. Whitney, Esq. Morgan, Lewis & Bockius

1701 Market Street Philadelphia, PA 19103

Counsel for Appellants

Joseph C. Kohn, Esq. (

Argued ) Craig W. Hillwig, Esq. William E. Hoese, Esq.

Robe rt J. LaRocca, Esq. Kohn, Swift & Graf

One South Broad Street

Suite 2100 Philadelphia, PA 19107

- AND

Jonathan W. Cuneo, Esq. Jennifer E. Kelly, Esq. Cuneo, Gilbert & LaDuca 507 C Street, N.E. Washington, DC 20002

- AND

Charles J. LaDuca, Esq.3 Cuneo, Gil bert & LaDuca

8120 Woodmont Avenue

Suite 810 Bethesda, MD 20814

- AND William H. Lamb, Esq. Maureen M. McBride, Esq. James C. Sargent, Jr., Esq.

Lamb McErlane

24 East Market Street

P.O. Box 565 West Chester, PA 19381

- AND

Gary E. Mason, Esq.

Jason S. Rat hod, Esq. Whitfield, Bryson & Mason 1625 Massachusetts Avenue, N.W.

Suite 605 Washington, DC 20036

Counsel for Appellee

David J. Bird, Esq. Paige H. Forster, Esq. Henry F. Reichner, Esq.

Reed Smith

225 Fifth Avenue

Suite 1200 Pittsburgh, PA 15222

Counsel for Amicus Appellant Federal Hom e Loan Mortga g e Corp

Gregory W. Happ, Esq. 331 East Washington Street Medina, OH 44256

Counsel for Amicus Appellee National Association of Independen t Lan d Title Agents

Edward J. Hayes, Esq. Lauren P. McKenna, Esq.4 Robert S. Tintner, Esq.

Fox Rothschild

2000 Market Street

20th Floor Philadelphia, PA 19103

Counsel for Amicus Appellant Pennsylv ania L a nd Title

Association

David R. Fine, Esq. Raymond P. Pepe, Esq.

K&L Gates

17 North Second Street

18th Floor Harrisburg, PA 17101

Counsel for Amicus Appellant Pennsylvania Bankers

Assoc ia tion

Benjamin D. Geffen, Esq. Public Interest Law Center of Philadelphia 1709 Benjamin Franklin Parkway United Way Building, 2nd Floor Philadelphia, PA 19103

Counsel for Amicus Appellees Pen nsylvania Legal Aid Network, Community Legal Services Inc, Housing Alliance of Pennsylvania , National As sociation of Consumer Advocates

and Consumer Credit Counsel ing Service of Delaware Valley

Max Weinstein, Esq. Legal Services Center of Harvard Law School 122 Boylston Street Jamaica Plain, MA 02130

Counsel for Amicus Appellee s Legal Se rvices Center of

Har vard Law School, Rebecca Tushnet, Jos eph William Singer, David Reiss and Melanie Leslie

Jeffrey S. Shank, Esq. John M. Smith, Esq. Gingrich Smith Klingensmith and Dolan5 222 South Market Street

Suite 201 Elizabeth, PA 17022

Counsel for Amicus Appellee Pennsylvania Recorder of

Deeds Association

Carmen P. Belefonte, Esq. Saltz, Mongeluzzi, Barrett & Bendesky

20 West Third Street

P.O. Box 1670 Media, PA 19063

- AND

Simon B. Paris, Esq. Saltz, Mongeluzzi, Barrett & Bendesky

1650 Mar ket Street One Liberty Place, 52nd Floor Philadelphia, PA 19103

Counsel for Amicus Appellee Thomas J. Judge, Sr.

Louis B. Kupperman, Esq. Obermayer, Rebmann, Maxwell & Hippel 1617 John F. Kennedy Boulevard One Penn Center, 19th Floor Philadelphia, PA 19103

- AND

Joshua D. Snyder, Esq.

Boni & Zack 15 St. Asaphs Road Bala Cynwyd, PA 19004

Counsel for Amicus Appellees Counsel of Bucks, County of

Ch ester and Joseph J. Szafran

Rigel C. Farr, Esq. Louis B. Kupperman, Esq. Joshua D. Snyder, Esq. Daniel P. Finegan, Esq. William J. Leonard, Esq. Obermayer, Rebmann, Maxwell & Hippel 1617 John F. Kennedy Boulevard6 One Penn Center, 19th Floor Philadelphia, PA 19103

Counsel for Amicus Appellee Richard T. L oughery

____________

OPINION OF THE COURT

____________

B ARRY, Circuit Judge

In 2011, Appellee Nancy J. Becker, the Recorder of

Deeds for Mont gomery County, Pennsylvania (“the Recorder”), brought this action on behalf of herself and other similarly situated county recorders of deeds in Pennsylvania against MERSCORP, Inc. and Mortgage Electronic Registration System s , Inc., entities associated wit h the MERS System (“MERS”), a national electronic registry system for mortgage loans

. T he Recorder sought to recover millions of dollars in unpaid recording fees, contending that the MERS

entities have unlawfully failed to pay such fees in violation of

Pe nnsylvania law, 21 Pa. Cons. Stat. Ann. § 351. Because we conclude that § 351 does not create a duty to record all land conveyances, a key premise on which the Recorder’s

claims were and are based, we will reverse.

We will also deny the Recorder’s moti on for

certification of t wo issue s to the Supreme Court of Pennsylvania. T he answer to the issue of state law that decides this case, at least before us, is so clear that we would be abdicating our responsibilities by punting. We recognize, of course, th at were the Supreme Court at some point to answer the question differently, that decision would control. Cf

. County of Ramsey v. MERSCORP Holdings, Inc. , 776 F.3d 947, 95 1 (8th Cir. 2014) (declining to certify issue to the state’s highest court); Union C ounty, Ill. v. MERSCORP, Inc.

, 735 F.3d 730 , 735 (7th Cir. 2013) (same).

I.

MERS is a national electronic loan registry system that permits its members to freely transfer, among themselves, the promissory notes associated with mortgages, while MERS7 rema ins the mortgagee of record in public land records as “nominee” for the note holder and its successors and assigns. 1 MERS facilitates the secondary market for mortgages by permitting its members to transfer the beneficial interest associated with a mortga ge

— that is, the right to repayment pursuant to the terms of the promissory note

— to one another, recording such transfers in the MERS database to notify one another and establish priority, instead of recording such transfers as mortgage assignments in local land recording

offices. It was created, in part, to reduce costs associated with the transfer of notes secured by mortgages by permitting note holders to avoid recording fees.

In the Recorder’s class action complaint, she sought a declaratory judgment and permanent injunction establishing that the MERS entities failed to record mortgage assignments in violation of Pennsylvania state law, 21 Pa. Cons. Stat. Ann. § 351, and brought claims for violation of § 351, civil conspiracy to violate § 351

, and unj ust enrichment, based on failure to pay recording fees. 2 The Recorder contends that

1 MERSCORP, Inc. , now known as MERSCORP Holdings,
Inc., is the parent company that owns and operates the system, wh ile Mortgage Electronic Registration Systems, Inc. is the entity that serves as mortgagee of record in local land recording offices. Additional background and explanation of how MERS operates is set forth in the District Court’s opinion

.

2 

### The Recorder did not plead a quiet title claim, but the District Court nevertheless “construed the pleadings to raise [one] without express invocation.” (App. 70.) We take no position on whether the Court acted properly in so doing because it is clear th at the Recorder cannot maintain a quiet title claim, as she does not claim an interest in land, only an interest in recording fees. See, e.g.

, Nat’l Christian Conference Ctr. v. Schuylkill Twp. , 597 A.2d 248, 250 (Pa. Commw. Ct. 1991) (“The Center does no t have an interest to support an action to quiet title because it has no possessory rights in the [land] . . . .”); Moore v. Com., Dep’t of Env tl. Res. , 566 A.2d 905, 907 (Pa. Commw. Ct. 1989) (“[I]n order to prevail in an action to quiet title,8 MERS “create[s] confusion amongst property owners, damage[s] the integrity of Pennsylvania’s land records, and den[ies] [the Recorder] and the Class millions of do llars in uncollected fees.” (App. 134.)

Section 351 provides as follows :

All deeds, conveyances, contracts, and other instruments of writing wherein it shall be the intention of the parties executing the same to grant, bargain, sell, and convey any lands,

tenem ents, or hereditaments situate in this Commonwealth, upon being acknowledged by the parties executing the same or proved in the manner provided by the laws of this Commonwealth, shall be recorded in the office for the recording of deeds in the county where such lands, tenements, and hereditaments are situate. Every such deed, conveyance, contract, or other instrument of writing which shall not be acknowledged or proved and recorded, as aforesaid, shall be adjudged fraudulent and void as to any subsequent b ona fide purchaser

. . . .

In its motions to dismiss and for summary judgment, MERS argued that § 351 does not impose a duty to record all land conveyances and that, even if § 351 imposed such a duty, the transfers of promissory notes among MERS

members d o not constitute assignments of the mortgage itself

and thus are not conveyances of land. It also argued that the Recorder lacked a right of action, and that, in any case, MERSCORP, Inc. and Mort gage Electronic Registration Systems, Inc., were not the cor rect parties against which a duty to record could be enforced.

In a series of opinions , the District Court rejected these



### plaintiff must establish title by a fair preponderance of the evidence.”) see also Albert v. Lehig h Coal & Nav. Co. , 246 A.2d 840, 843 (Pa. 1968); White v. Young , 186 A.2d 919, 921 (Pa. 1963).9 arguments. 3 In its opinion and order filed on October 19, 2012, the Court held that § 351’s language providing that conveyances “sha ll be recorded” was clear, indicating that all conveyances must be recorded. Montgomery Cnty., Pa. v.
MERSCORP, Inc. , 904 F. Supp. 2d 436, 443

- 45 (E.D. Pa. 2012). The Court also observed that the statute appeared under a heading, “NECESSITY OF RECORDING AND COMPULSORY RECORDING,” while other statutes appeared under a heading, “INSTRUMENTS SUBJECT TO RECORD,” and used the words “may be recorded,” indicating significance in the use of the term “shall” in § 351, instead of “may.” Id . In its opinion and ord er filed on July 1, 2014, the Court granted the Recorder’s request for a declaratory judgment and denied the MERS entities’ motion for summary judgment

. Montgomery Cnty., Pa. v.
MERSCORP, Inc. , 16 F. Supp. 3d 542, 565 (E.D. Pa. 2014).

The Court stated: “We . . . declare that Defendants’ failure to create and record documents evincing the transfers of promissory notes secured by mortgages on real estate in the Commonwealth of Pennsylvania is, was and will in the future be, in violation of the Pennsylvania Recording l aw

– most particularly 21 P.S. § 351.” Id . On September 8, 2014, the

Court certified its July 1, 2014 order for interlocutory appeal.

W e granted permission to appeal, and now reverse.

II.

The District Court had jurisdiction pursuant to 28

U .S.C. § 1332, and we have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We exercise plenary review over a district court’s decision to grant or deny summary judgment, Post v. St. Paul Travelers

Ins. Co. , 691 F.3d 500, 514 (3 d Cir. 2012), and summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “O ur review of the district court's inter pretation of

state law is plenary. ” Borman v. Raymark Indus., Inc. , 960 F.2d 327, 329 (3d Cir. 1992).

3 The District Court did, however, dismiss the Recorder’s conspiracy clai m.10 Where the highest court of a state has interpreted a state statute, “we apply the interpretation of state law by the

state’s own courts.” Kollar v. M iller , 176 F.3d 175, 179 (3d Cir. 1999). “[W]hen there is no decision from the state's highest court directly on point,” however, “we are charged with predicting how that court would resolve the question at

issue.” Colliers Lanard & Axilbund v. Lloyds of London , 458 F.3d 231, 236 (3d Cir. 2006). In doing so, we take into consideration any opinions of the state’s intermediate courts, as well as “[t]he policies underlying applicable legal doctrine,

current trends in the law and decisions of other courts.” City of Erie, Pa. v. Guar. Nat. Ins. Co. , 109 F.3d 156, 160 (3d Cir. 1997).

III.

MERS raises several arguments on appeal, only one of

which we need address to resolve the issues in this case. MERS contends that § 351 does not impose a duty to record

all land conveyances, and that the statute’s “shall be recorded” language, when read in context, indicates not that every conveyance must be recorded, but only that conveyances must be recorded in the county where the property is situated in order to preserve the property holder’s rights as against a subsequent bona fide purchaser. We agree. No Pennsylvania court has yet addressed whether § 351 creates a duty to record all land conveyances, and, as counsel for the Recorder acknowledged at oral argument,

there is no decision of any Pennsylvania court applying § 351 in a manner consistent with the Recorder’s preferred interpretation

. 4 The primary purpose of Pennsylvania’s land

4 There are, however, decisions of Pennsylvania courts referring to recording as “optional” and “not obligatory.” See Pepper ’s Appeal , 77 Pa. 373, 377 ( Pa. 1875) (“Thus it appears that the language of the Acts of Assembly providing for the recording of written instruments has not generally been mandatory. . . . It is optional whether or not to record.”);

see also Easton Rd. Enters. Inc. v. Mellon Bank , Case No. 3220, 2007 WL 2024758 (Pa. Com. Pl. June 8, 2007) (stating11 recording statutes is “to give public notice in whom the title resides; so that no on e may be defrauded by deceptious appearance of title.” Salter v. Reed , 15 Pa. 260, 263 (Pa. 1850); see Mancine v. Concord

- Liberty Sav. & Loan Ass’n

, 445 A.2d 744, 746 (Pa. Super. Ct. 1982) (citing Salter ). The consequence of failure to record is set fort h in § 351 itself: if a conveyance is not recorded in the appropriate place , it is void as to any subsequent bona fide purchaser. No other consequence for failure to record is set forth in Pennsylvania

law.

Significantly, § 351 does not specify who mu st record a conveyance, when it must be recorded, or how a duty to record would be enforced. Moreover, as the District Court acknowledged, recording is not necessary to validly convey property in Pennsylvania. See, e.g.

, Matter of Pentrack’s

Estate , 405 A.2d 879, 880 (Pa. 1979) (“Title to real estate may be passed by delivery of a deed without recording.”);

Fiore v. Fiore , 174 A.2d 858, 859 (Pa. 1961) (holding that “recording of the deed was not essential to its validity or the transition of the title”). If recording of all conveyances is required by § 351, as the Recorder suggests, it does not follow that Pennsylvania courts would recognize unrecorded conveyances as valid.

We find nothing in the history or context of § 351 to compel a conclusion to the contrary. As both parties acknowledge, the heading s cited by the District Court,

“NECESSITY OF RECORDING AND COMPULSORY RECORDING,” and “INSTRUMENTS SUBJECT TO RECORD,” were created by the publisher’s editorial staff , not the legislature, and do not refle ct legislative intent. ( See Appellee’s Br. at 35 n.12.) The Recorder urges us to find that § 351 creates a duty to record conveyances by reading the

statute in pari materia with 21 Pa. Cons. Stat. Ann. § 356, a

statute addre ssing written agreements relat ing to “rights or privileges of a permanent nature” in real property and containing language similar to that of § 351 ( i.e. , “All agreements . . . shall be recorded in the office for the

that “recording is not obligatory, ” citing the Pennsylvania Law Encyclopedia).12 recording of deeds in the county or counties wherein such real

proper ty is situate”). She argues that because the title of § 356 stated that it was an act “ [R]equiring the recording of certain written instruments pertaining to real property,” this proves that § 356 was intended to impose a duty to record, and that, by exte nsion, § 351 must be interpreted the same

way. See Act of Apr. 24, 1931, P.L. 48, No. 40 (reproduced at Addendum B to Appellee’s Br.) (emphasis added).

We find this argument unpersuasive. Section 356 was enacted six years after § 351

, and the use of “ requiring” in the title of § 356 does not itself establish that § 356 imposes a duty to record. See 1 Pa. Cons. Stat. Ann. § 1924 (stating that while titles and headings may be considered in statutory interpretation , they do not control). In any event, t he title of §

351 does not similarly use the term “requiring.” See Act of May 12, 1925, P.L. 613, No. 327 (reproduced a t Addendum A to Appellee’s Br.) ( “ Regulating the recording of certain deeds, conveyances, and other instruments of writing, and fixing t he effect thereof as to subsequent purchasers, mortgagees, and judgment creditors.” ) (emphasis added). In addition, although the parties dispute whether § 351 and its predecessor statutes rendered recording mandatory or optional, both parties acknowledge that until 1998, § 351 co

existed with another statute, 21 Pa. Cons. Stat. Ann. § 623, that explicitly indicated that the recording of mortgage assignments was optional. See Act of Apr. 9, 1849, P.L. 524, No. 354 § 14 (r eproduced at Ex. F to Appellant s ’ B r.). This would make little sense if § 351 and its predecessor statutes created a duty to record all land conveyances.

While the Recorder and the District Court accurately observed that the Pennsylvania legislature used “may be recorded” in other places in the recording statutes, see, e.g. , 21 Pa. Cons. Stat. Ann. §§ 383, 385, 404, suggesting that the legislature’s use of “shall b e recorded ” in § 351 is significant, the words must be understood in context. Section

351 does not issue a blanket command t hat all conveyances must be recorded; it states that a conveyance “shall be recorded” in the appropriate place, or else the party risks losing his interest in the property to a bona fide purchaser. It informs property owners of what steps they must take i n order13 to safeguard their interests, and does not in any way state or imply that failure to record constitutes a violation of the

statute enforceable by a recorder of deeds.

O ur interpretation is in accord with the decisions of

several other courts rej ecting similar lawsuits brought under

similar statutes by local recording officials against MERS

entities . For example, in Union County, Ill inois v. MERSCORP, Inc. , the Seventh Circuit interpreted an Illinois law materially identical to Pennsylvania’s § 3 51 and held that

it created no mandatory duty to record. 5 735 F.3d at 733

- 34. The court rejected the local recording officials’ argument that use of the language “shall be recorded” created a duty to record all conveyances. As the court observed:

[A] moment's reflection will reveal the shallowness of [the counties’] recourse to “plain meaning,” a tired, overused legal phrase. For suppose a department store posts the following notice: “All defective products must be returned

to the fifth floor counter f or refund.” Obviously this is not a command that defective products be returned; the purchaser is free to keep a defective product, throw it out, or give it as a present to his worst friend. There's an implicit

“if” in the command: If you want to return a product and get a refund, here's where you have to return it. Similarly, section 28 of the Conveyances Act may just mean that if you want to record your property interest you must do so in the county in which the property is

located.

5 The Illinois law provided that: Deeds, mortgages, powers of attorney, and other instruments relating to or affecting the title to real estate in this state, shall be recorded in the county in which such real estate is situated; but if such county is not organized, then in the county to which such unorganized county is attached for judicial purposes. 765 Ill. Comp. Stat. Ann. 5/28 (emphasis added).14 Id. at 733. The c ou rt went on to observe that “the purpose of recordation has never been understood to supplement property taxes by making every landowner, mortgagee, etc. pay a fee for a service he doesn’t want . . . . Recording is a valuable service, provided usually for a modest fee

— but provided only to those who think the service worth the fee.”

Id

. at 733

- 34. Likewise, the Eighth Circuit held in County of Ramsey v. MERSCORP Holdings, Inc. , that Minnesota’s recording statute, also nearly identical to Pennsylvania’s law, imposed no duty to record mortgage assignments. 6 776 F.3d

at 950. Other decisions have likewise rejected similar lawsuits against MERS entities on grounds that state law imposed no duty to record mortgages and/or assignments of

mortgages

. See, e.g.

, Ha rris Cnty., Tex. v. MERSCORP, Inc.

,

--- F.3d

--- , Case No. 14

- 10392, 2015 WL 3937927, *5

- 8 (5th Cir. June 26, 2015) (Texas law imposes no duty to record); Plymouth Cnty., Iowa v. MERSCORP, Inc. , 774 F.3d 1155, 1159 (8th Cir. 2014) (Iowa law imposes no duty to record);
Brown v. MERS, Inc. , 738 F.3d 926, 934 (8th Cir. 2013) (Arkansas law imposes no duty to record); Jackson Cnty.,
Mo. ex rel. Nixon v. MERSCORP, Inc. , 915 F. Supp. 2d 1064, 1070 (W.D. Mo. 2013) (Missouri law imposes no duty to record).

Becaus e we conclude that Pennsylvania’s § 351 imposes no duty to record all land conveyances, we will

reverse the July 1, 2014 order of the District Court which granted the Recorder’s request for a declaratory judgment and

6 Minnesota’s law provided:

E very conveyance of real esta te shall be

recorded in the office of the county recorder of the county where such real estate is situated; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable

consideration of the sa me real estate, or any part thereof, whose con veyance is first duly

recorded . . . . Minn. Stat. § 507.34 (emphasis added).15 denied the MERS entities’ motion for su mmary judgment

. 7

7 In light of our interpretation of § 351, the Recorder’s unjust

enrichment claim fails as a matter of law . To prevail on a

claim f or unjust enrichment in Pennsylvania, a plaintiff must prove: “(1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such

circumstances that it would be in equitable for defendant to retain the benefit without payment of value.” Mitchell v.

Moore , 729 A.2d 1200, 1203 (Pa. Super. 1999) (quoting Schenck v. K.E. David, Ltd. , 666 A.2d 327, 328 (Pa. Super. 1995)). Here, there is no evidence that the Recorder

con ferred any benefit on the MERS entities for which they failed to pay value. See Harris Cnty. , 2015 WL 3937927, at

*12

- 13 ( holding that in the absence of a duty to record, there could be no unjust enrichment claim (Texas law )); Cnty. of Ramsey , 776 F.3d at 950

- 51 ( same (Minnesota law)); Plymouth Cnty. , 774 F.3d at 1159 (same (Iowa law)); Brown

, 738 F. 3d at 935 (same (Arkansas law)); Jackson Cnty. , 915 F. Supp. 2d at 1070

- 71 (same (Missouri law)); Fuller v. Mortg. Elec. Registration Sys. , Inc. , 888 F. Supp. 2d 1257, 127 4

- 7 5 (M.D. Fla. 2012) (same (Florida law)). As the Seventh Circuit explained in Macon County, Ill. v. MERSCORP, Inc.

, 74 2 F.3d 711, 714 (7th Cir. 2014): There is no suggestion that the defendants in this case have committed an unlawful act, on ly that it is “unjust” that they should retain a benefit provided them by their circumvention of a method of mortgage protection that would yield revenues for Macon County. But they are not deriving any benefit from the County's method, the recording syste m, beyond the recording of the mortgage assignments to

MERSCORP

— for which MERSCORP pays the County's fee. Rather, the defendants are bypassing the County's recording system, as they are entitled to do because there is no requirement that either the initial granting of a mortgage or its assignment be recorded, let alone that the assignment of a promissory note

be recorded.16 W e acknowledge the arguments of the Recorder and her amici contending that MERS has a harmful impact on homeowners, title professionals, local land records, and various public programs supported in part by the fees collected by Pennsylvan ia’s recorders of deeds. In this appeal, however, we are not called upon to evaluate how MERS impacts various constituencies or to adjudicate whether MERS is good or bad. Just as the Seventh Circuit

observed in Union County , while the Recorder is critic al of MERS in several respects, “[her] appeal claims only that MERSCORP is violating [state law] by failing to record its transfer of mortgage debts, thus depriving the county governments of recording fees. That claim

— the only one

before us

—

has no merit.” 735 F.3d at 734

- 35.

IV.

We will reverse the July 1, 2014 order of the District

Court and deny the motion for certification

. 8

8 The Recorder moved to certify two questions of law: first, whether § 351 requires the recording of land conveyances, and, second, whet her a county’s Recorder of Deeds may bring an action to enforce the requirements of § 351. Because we

have conclude d that § 351 imposes no duty to record land conveyances, we need not address whether a recorder has a right of action under the statute. We note, however, that the Recorder’s lack of an express or implied right of action under § 351 would provide an independent ground for judgment in

favor of MERS. See, e.g., Harris Cnty. , 2015 WL 3937927, at

*4

- 6 (no right of action under Texas law); Christia n Cnty.

Clerk ex rel. Kem v. Mortg. Elec. Registration Sys. , Inc.

, 515 F. App’x 451, 456

- 58 (6th Cir. 2013) (not precedential) (no right of action under Kentucky law); Fuller , 888 F. Supp. 2d

at 1270

- 71 (no right of action under Florida law)

.