When a borrower signs the mortgage
security instrument at closing, they grant and convey the legal title to the
mortgage to Mortgage Electronic Registration Systems Inc. (MERS) and MERS is
the mortgagee. As the agent for the promissory note owner, upon instructions
from the owner, MERS will commence a foreclosure. The mortgage instrument
states that MERS has the right to foreclose and sell the property. Courts
around the country have repeatedly upheld and recognized this right.

 

In the foreclosure process, MERS has
been and continues to be an outspoken advocate for all parties, producing all
the required evidence, including the note. If that means taking more time to
gather the necessary documents before rushing in and filing a pleading, MERS
strongly recommends doing so.

It often takes time to produce the
note. Attorneys for mortgage companies usually are under very tight time
pressures from investors to act quickly. Instead of actually producing the
note, many attorneys rely on the practice of filing a “lost note” affidavit.
This is a practice that MERS does not support. When MERS forecloses, we require
that the promissory note be in our possession endorsed in blank, making MERS
the note-holder with the right to enforce it.

 

 

 

This isn’t the folks with the $75,000 houses squaring off
against the people with the $1,500,000 houses. It’s banks and servicers against
anybody who owns a home of whatever value.

 

“relieved of mortgage debt because of a sloppy assignment”
sounds a lot like the foreclosure crisis version of the old “the judge let the
guy with the bloody hands go just because we searched his house without a
warrant”. It’s not homeowners exploiting some loophole. It’s proving that you
have a legal right to take away somebody’s house before you turn them onto the
street.

 

Whether a foreclosure plaintiff has a proper assignment is
not a technicality. If I owe money to Chase, Citibank can’t take my house just
because it shows up and says it has an assignment.

 

 

I consider this to be the difference between “lawful and
timely execution” and “recordation.”

 

Failure to record an assignment of mortgage does not effect
the perfection or validity, or the lack of perfection or validity, of an
assignment.

And if all they have is an unsecured note, it is likely the
debt itself could be discharged in bankruptcy.

 

In such a scenario, the homeowner is in a much better
position to negotiate MEANINGFUL mortgage modification, including principal
reduction, b/c otherwise the bank is looking at getting nothing.”

 

In such a scenario, any homeowner/borrower/defendant that
entered into any sort of modification agreement should have his head examined.
That seems like a “give them money out of the kindness of your heart” line of
thinking. Remember, we’re talking about banks. I don’t know of anyone (outside
of our congress) that has any pity for them – and that lack thereof for good
reason.

 

Additionally, have you read any of such agreements? I have.
About 20 of them. Boiler plate stuff. The most disturbing parts are the
sections that have the homeowner/borrower/defendant signing away any and all
rights and defenses to any past bad deeds AND any future bad deeds on the part
of the alleged holder/owner.

 

 

 

OK, explain your theory to John and Jane Doe living on
Plugger Lane in their little bungalow, who have made every payment on their
$75,000 mortgage, when John and Jane Jetsetter living on Country Club Lane in
their Better Homes and Garden House with a pool in back, who have made only 10
payments on their $1,500,000 mortgage and are 6 months behind, are relieved of
their mortgage debt in a foreclosure action because of a sloppy assignment.

 

 

 

For those of you that this has happened to, get a forensic
audit on your loan. If it turns out you have been foreclosed on illegally, it
may be that you have rights. It is a matter of “standing” for the person
attempting to foreclose and whether they actually have legal standing to do so.
You may be able to successfully challenge that. MASS land court ruled 20 years
of foreclosures invalid. You have to get INFORMATION (sorry for shouting) you
need an attorney as well, as the issues are so complex.

 

The premier site for information is;
livinglies.wordpress.com/ There are links here to other sites. There are
other sites out there in your state but remember this; and sorry for shouting
again

 

IF ANYONE WANTS TO MODIFY YOUR LOAN, YOU ARE IN GREATER
JEOPARDY OF LOSING YOUR HOME THAN IF YOU FIGHT THEM. Real estate has not hit
bottom and now title to property is clouded so that selling it may be
impossible and you can stay in your home until it is sorted out. Without
paying.

 

you need to decide what situation you are in, if bankruptcy
is best, the bankruptcy court may protect your rights best from the people that
pretend to have the right to foreclose. This is still common in many states.
Some courts are rubber stamping fraud, and they will eventually have to address
their mistakes. Florida is making big strides, and angering the bankers that
tried to write a new law helping foreclosing easier for them, harder for you to
challenge.

There are a variety of remedies, but they differ for
everyone. Different states have different laws, but federal law will often
trump some of these issues.

 

Get help, learn what people in your state are doing

 

 

 

es, you are correct they f’up all the damn time. But, that
doesn’t mean the mortgagors get a free house.

 

The f’ups in the assigments don’t really have a damn thing
to do with the mortgagors. That fact and the fact they haven’t met the terms of
the promissory note ultimately beats them.

 

In saying this, I am not excusing any forgeries. People who
have done this should be prosecuted.

 

The thing is, oldgold, in many cases the paper trail is so
long, convoluted, and f’d up, that it is not possible to follow it; if they
can’t figure out who owned the note/mtg when, if they can’t prove who owns it
now, they can’t figure out who should make an affidavit. And, based on my short
experience in a mortgage bank trying to follow such f’d up paper trails, I
think that may happen far more often than one would think.

 

I really think that, at least some of the time, the would-be
forecloser will give up, leaving the borrower in place. And as Cynthia
suggested in an earlier post, the borrower could simply file a suit to quiet
title, and if he wins, that would be that.

 

Now, you may be trying these cases in real time, and my
experience dates from the late ’80′s savings and loan debacle. But I can’t help
thinking the bank people probably f’d up as least as badly, and in similar
ways, as before. What do you think?

“These mortgages were not actually assigned.”

 

Gotcha; agreed. No assignment plus no payment = zero rights
to collect.

 

You’re kind of muddying the waters with your reference to
the lack of recordation though. As I suspect you know, recordation has nothing
to do with the efficacy of a conveyance/pledge etc…, it only relates to the
rights/priorities of third parties.

 

Not recording a valid assignment doesn’t make it
ineffective, and recording a defective assignment doesn’t make it effective.

tejanarusa April 19th, 2010 at 3:21 pm

 

no I’m not confusing them. Maybe I did not explain myself
well enough though.

 

These mortgages were not actually assigned. Not where these
non -assignments recorded with the county clerks office (which would have
provided the “notice” part of a bona fide purchaser for value without
notice)–so, unless the bank can show it has an equity interest b/c it paid for
the assignment even though the assignment did not happen, it’s screwed.

 

No valid assignment and no proff of payment and no recording
inthe county clerks office

 

How does the bank prove standing?

In order for someone to acquire rights under a note, they
must be a ‘purchaser for value’.”

 

I think you’re confusing being an assignee with being a
holder in due course. You can have the contractual rights under a note and the
real property security interest under a mortgage assigned to you without being
a purchaser for value, you just won’t be a holder in due course. You still have
the right to demand payment on the note and foreclose on the mortgage, you’re
just in a bit less of a legally advantageous position.

 

 

In response to oldgold @ 32

 

    The key question
is going to be whether or not they paid the promissory note in accordance with
its terms. If not, ultimately they are going to be foreclosed.

 

You are wrong about that. Whether or not they paid the
promissory note = whether or not the note holder has an action against them for
the debt.

 

If there is no standing to foreclose, they MIGHT be able to
obtain a judgemetn against you for the debt, but they cannot take your house
away b/c they have no standing in the land.

 

And if allthey have is an unsecured note, it is likely the
debt itself could be discharged in bankruptcy.

 

In such a scenario, the homeowner is in a much better
position to negotiate MEANINGFUL mortgage modification, including prinipal
reduction, b/c otherwise the bank is looking at getting nothing.

Cynthia Kouril April 19th, 2010 at 3:01 pm