2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-3-2015

County of Montgomery Recorder v. MERSCorp

Inc

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PRECEDENTIAL

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 of 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

_____________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE EASTERN DISTRICT OF 

PENNSYLVANIA

(D.C. Civil No. 11-cv-06968)

District Judge: Honorable J. Curtis Joyner

____________

Argued: June 25, 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 33131
2

-ANDPeter Buscemi, Esq.

Morgan, Lewis & Bockius

1111 Pennsylvania Avenue, N.W.

Suite 800 North

Washington, DC 20004

-ANDFranco A. Corrado, Esq.

Joseph B.G. Fay, Esq.

Morgan, Lewis & Bockius

1701 Market Street

Philadelphia, PA 19103

-ANDNicholas C. Vance, Esq.

GlaxoSmithKline

5 Crescent Drive

Navy Yard Corporate Center

Philadelphia, PA 19112

-ANDAndrew 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.

Robert J. LaRocca, Esq.

Kohn, Swift & Graf

One South Broad Street

Suite 2100

Philadelphia, PA 19107

-ANDJonathan W. Cuneo, Esq.

Jennifer E. Kelly, Esq.

Cuneo, Gilbert & LaDuca

507 C Street, N.E.

Washington, DC 20002

-ANDCharles J. LaDuca, Esq.
3

Cuneo, Gilbert & 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

-ANDGary E. Mason, Esq.

Jason S. Rathod, 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 Home Loan Mortgage 

Corp

Gregory W. Happ, Esq.

331 East Washington Street

Medina, OH 44256

Counsel for Amicus Appellee National Association of 

Independent Land 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 Pennsylvania Land 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 

Association

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 Pennsylvania Legal Aid 

Network, Community Legal Services Inc, Housing Alliance of 

Pennsylvania, National Association of Consumer Advocates

and Consumer Credit Counseling Service of Delaware Valley

Max Weinstein, Esq.

Legal Services Center of Harvard Law School

122 Boylston Street

Jamaica Plain, MA 02130

Counsel for Amicus Appellees Legal Services Center of 

Harvard Law School, Rebecca Tushnet, Joseph William 

Singer, David Reiss and Melanie Leslie

Jeffrey S. Shank, Esq.

John M. Smith, Esq.

Gingrich Smith Klingensmith and Dolan
5

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

-ANDSimon B. Paris, Esq.

Saltz, Mongeluzzi, Barrett & Bendesky

1650 Market 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

-ANDJoshua D. Snyder, Esq.

Boni & Zack

15 St. Asaphs Road

Bala Cynwyd, PA 19004

Counsel for Amicus Appellees Counsel of Bucks, County of 

Chester 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 Boulevard
6

One Penn Center, 19th Floor

Philadelphia, PA 19103

Counsel for Amicus Appellee Richard T. Loughery

____________

OPINION OF THE COURT

____________

BARRY, Circuit Judge

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

Deeds for Montgomery 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 Systems, Inc., entities associated with the MERS 

System (“MERS”), a national electronic registry system for 

mortgage loans. The 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 

Pennsylvania 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 motion for 

certification of two issues to the Supreme Court of 

Pennsylvania. The 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, that 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, 951 (8th Cir. 2014) (declining to certify issue to the 

state’s highest court); Union County, 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 MERS 
7

remains 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 mortgage—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 unjust 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, while 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 that 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 not 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 Envtl. 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 dollars 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, 

tenements, 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 bona 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 do 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 Mortgage Electronic Registration

Systems, Inc., were not the correct 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. Lehigh 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 “shall 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 order 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 law – most 

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

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

We 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 (3d 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). “Our review of the district court's interpretation 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 claim.
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. Miller, 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) (stating 
11

recording statutes is “to give public notice in whom the title 

resides; so that no one 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 forth 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 must 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 headings 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 reflect 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 addressing written agreements relating 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 

property 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 extension, § 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, the title of § 

351 does not similarly use the term “requiring.” See Act of 

May 12, 1925, P.L. 613, No. 327 (reproduced at Addendum 

A to Appellee’s Br.) (“Regulating the recording of certain 

deeds, conveyances, and other instruments of writing, and 

fixing the 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 coexisted 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 (reproduced at Ex. F to Appellants’ Br.). 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 be recorded” in § 351 is 

significant, the words must be understood in context. Section 

351 does not issue a blanket command that 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 in order 
13

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. 

Our interpretation is in accord with the decisions of 

several other courts rejecting similar lawsuits brought under 

similar statutes by local recording officials against MERS

entities. For example, in Union County, Illinois v. 

MERSCORP, Inc., the Seventh Circuit interpreted an Illinois 

law materially identical to Pennsylvania’s § 351 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 for 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 court 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., Harris 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). 

Because 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: 

Every conveyance of real estate 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 same real estate, or any part 

thereof, whose conveyance is first duly 

recorded . . . .

Minn. Stat. § 507.34 (emphasis added).
15

denied the MERS entities’ motion for summary 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 for 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 inequitable 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 

conferred 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, 1274-75 

(M.D. Fla. 2012) (same (Florida law)). As the Seventh 

Circuit explained in Macon County, Ill. v. MERSCORP, Inc., 

742 F.3d 711, 714 (7th Cir. 2014):

There is no suggestion that the defendants in 

this case have committed an unlawful act, only 

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 system, 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

We 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 Pennsylvania’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 critical 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, whether a county’s Recorder of Deeds may bring 

an action to enforce the requirements of § 351. Because we 

have concluded 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); Christian 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).