CAN THEY PROVE IT!

By
Mortgage and Lending with Bank of England Mortgage 385907

There's a really interesting phenomenon that I've heard mentioned several times in regards to the foreclosure process. Here it is;

Do the mortgage holders have a copy of the note and mortgage?

They may not! as crazy as that seems.

That raises the question can they prove that you owe the money and under what terms. Many times the party attempting to foreclose is being hampered by their need to acquire lost and/or destroyed documents. Many attorney's are using as their first line of defense;

Prove it!

It would work kinda like this. An individual and/or individuals who have received a foreclosure notice from whomever, hire an attorney who immediately requests that the party attempting to foreclosure produce the note and mortgage. This is to prove that the terms are correct and that the mortgage actually exists. Also, there may be a question that the party who has filed the foreclosure actually has the right to do so, but that's another issue entirely.

There was a CNNMoney.com piece this AM that quoted law professor , Cathy Parker, as saying that she believes that up to 50% of the time the mortgage holder is filing or has filed a request for lost or destroyed documents. Because they don't have them! If that seems like a lot of the time to you, it does to me also.

Sounds sloppy, doesn't it.

Can they acquire copies? Well yes, and sometimes no. BUT, it's sure going to slow down the process, and possibly open the door to potential renegiotiation of the terms.

So, in my opinion, if you are having difficulties, and may be facing foreclosure because you may not be satisfying the terms of your mortgage send a message to the mortgage holder;

Prove it!!!   

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Rainer
116,822
Bo Hussung
Bell Title /Triserv LLC - Nashvle, TN

Jay, good points......I wanted to point out an article in The Cleveland, Ohio newspaper THE PLAIN DEALER /SUN NEWS from December, 2007 regarding a court ruling on this exact subject. In fact, the Federal Court ruling is putting the oneous on the lenders /services to provide the assignments of the loans. Many of the foreclosures that have been brought to several courts have been trown out. Interesting times we live in.

See article below:

Thanks

http://www.cleveland.com/news/plaindealer/index.ssf?/base/cuyahoga/1198575170251740.xml&coll=2

Jun 23, 2008 02:19 AM #1
Rainmaker
190,983
Susan Milner
Florida Future Realty, Inc. - Cape Coral, FL
Cape Coral Real Estate Broker, FloridaFutureAgents

Good point Jay. I honestly had not really thought of this. We have many short sales we're negotiating on right now where they have been assigned numerous times. I'm wondering how many of these may be lost?

Jun 23, 2008 06:08 AM #2
Rainmaker
284,767
Gene Allen
Fathom Realty - Cary, NC
Realty Consultant for Cary Real Estate
Interesting. Makes me wonder how anything gets done in the world.
Jun 23, 2008 08:52 AM #3
Rainmaker
288,859
Jay Beckingham
Bank of England Mortgage - Delray Beach, FL
Seniors ROCK!

Bo,

there were/are times when the originating lender is attempting to package loans for sale at such a rapid pace that the originals are gone from day one or they are placed in the wrong file. it's not a problem when the files either get refi'd or they all pay promptly, however when they don't look out.

Susan,

certainly more than we realize. the companies work off of the computer records right up until they are challenged to produce the docs. then they are in trouble.

jay

Jun 23, 2008 08:55 AM #4
Rainmaker
288,859
Jay Beckingham
Bank of England Mortgage - Delray Beach, FL
Seniors ROCK!

Gene Allen,

sometimes things are not what they appear to be.

jay

Jun 23, 2008 08:57 AM #5
Rainmaker
218,087
Joan Mirantz
Homequest Real Estate - Concord, NH
Realtor, GRI, CBR, SRES - Concord New Hampshire

Jay..that is really interesting...It wouldn't have entered my mind to challenge! I guess the best way to go would be an attorney. The only problem is that attorneys cost $$$ and people in foreclosure usually don't have it!

Jun 23, 2008 02:18 PM #6
Rainmaker
288,859
Jay Beckingham
Bank of England Mortgage - Delray Beach, FL
Seniors ROCK!

Joan,

i agree and disagree. someone who isn't making their mortgage payments may be able to scrape up the $$$'s for the attorney.

jay

Jun 24, 2008 11:52 AM #7
Anonymous
Kerry Constantine

Very good article. Thanks for the insight.

Jun 29, 2008 04:28 AM #8
Rainer
120,944
Ronald Gillis
Southwest Florida Notaries (Mortgage Notary Signing Agent) - Port Charlotte, FL
CNSA Southwest Florida. Notaries, Port Charlotte, 941-7-NOTARY

While I don't like the thought of using loopholes (as this seems to me) it is utterly amazing how many lenders in fact do not keep proper records.  As far as slowing down the procedure, that I am OK with, as long as the borrower does not destroy the home in the mean time.

Signature

Jul 04, 2008 05:32 AM #9
Rainer
194,870
Steve Harless
Resolution Realty - Las Vegas, NV

great point jay

Jul 04, 2008 05:41 AM #10
Rainer
73,074
Jeffrey Tumbarello
South West Florida Real Estate Investment Association - Fort Myers, FL

the basic right to foreclose is the note. With the CDO's they really do not have that, that is the basis to the case action in Ohio versus Deustche Bank. if that case goes against the bank, the case law will spread like wild fire

Jul 15, 2008 03:45 AM #11
Rainer
20,112
Steve Dibert
MFI-Miami - Fort Lauderdale, FL

The transfer of servicing agreement has to have been done properly as well or else the lender can't foreclose.  This is how Deutsche Bank was prevented by the federal courts from foreclosing onhundreds of homes in Cleveland.  This one of the things we look for when we do a forencic loan audit.  Check us out at www.mfi-miami.com

Steve

Jul 23, 2008 12:26 PM #12
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Rainmaker
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Jay Beckingham

Seniors ROCK!
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