Comments on: “Total war over missing paperwork”

By: David Schwartz

David Schwartz — Mon, 18 Oct 2010 14:54:41 +0000

Those fees buy us a clean public record of the ownership of land. They allow the homeowners to know who holds their note, who they can negotiate with, and so on. $35 to record the transfer of an ownership of real property is a reasonable fee, and would have protected the banks from this disaster of their own making.

By: Bill Alexander

Bill Alexander — Mon, 18 Oct 2010 14:17:28 +0000

“If nothing else, we’ve been cheated out of billions of dollars in recording fees . . .”
You mean we have been cheated out of the opportunity to give billions of our dollars to the government?

By: David Schwartz

David Schwartz — Mon, 18 Oct 2010 07:24:54 +0000

jt: On the more indirect side, the reduction in government revenue from recording fees means higher taxes and/or reductions in other services. On the more direct side, the lack of a clear record of who holds the mortgage and who has what rights make it virtually impossible for the consumer to know who he can renegotiate with.

The other way it hurts the consumer is when he goes to sell his house. How can he prove he made payments to the correct entity? How can he prove he has clear title to his land if nobody can establish who holds the note and thus who can release it?

Make no mistake about it, if the bank’s position is accepted, the homeowners have been screwed over. We all have been. If nothing else, we’ve been cheated out of billions of dollars in recording fees and the right to a clean public record documenting the title of land.

By: VMS

VMS — Thu, 14 Oct 2010 20:27:34 +0000

JW@4 No matter how many times the Note is sold, the County Clerk will record each assignmemnt. If the court (or the borrower) is worried that the assignment is fraudulent, then they can require notice to the previous assignors of record.

By: jt

jt — Thu, 14 Oct 2010 17:32:56 +0000

Even if it is not clear which bank or financial institution owns the mortgage note, there is no fraud on the borrower. The one thing that is clear is that the borrower defaulted and has no claim on the home. If the wrong bank forecloses on a home, then that bank can be pursued in court by the bank that rightfully owns the note, or more likely they will reach a settlement between themselves.

I don’t see any way that this hurts the consumer in the way that many state AGs seem to be implying.

By: Stop Coddling Mortgage Deadbeats | OpenMarket.org

Stop Coddling Mortgage Deadbeats | OpenMarket.org — Thu, 14 Oct 2010 16:45:28 +0000

[…] that have nothing to do with whether a borrower defaulted on a loan will lead to negative “consequences” for borrowers in the future, like much more costly handling of paperwork, that will likely […]

By: PointOfLaw Forum

PointOfLaw Forum — Thu, 14 Oct 2010 14:47:36 +0000

“Let’s Not Start Lionizing The Anti-Foreclosure Deadbeats”…

John Carney:None of this excuses the actions of banks that falsified affidavits, did not properly transfer mortgage notes and lien documents, forged documents, and sold shoddily securitized mortgages to investors. But the wronged party in these situati…

By: rxc

rxc — Thu, 14 Oct 2010 14:41:17 +0000

Original cancelled checks don’t even exist any more – they are scanned for transmission to the clearing house, and the originals are destroyed. I know at least one major insurance company that does not keep ANY original paperwork – it is ALL digitized.

The people who are trying to move us into an electronic society should be in an uproar over this. But seeing as the foreclosure uproar itself is more heat than light, the more important thing is to make sure that our great COngress does not get a chance to step in an make things worse before (or immediately after) the upcoming election.

By: JW

JW — Thu, 14 Oct 2010 13:55:26 +0000

Isn’t the main concern about whether the institution filing the foreclosure is truly the current mortgage holder? These notes have been sold on so many times that isn’t sometimes unclear who actually does own the debt?

My reading of your post is more about the original lender still owning the mortgage.

By: wfjag

wfjag — Thu, 14 Oct 2010 13:46:23 +0000

In my experience, if the lender’s paperwork is not in order, it loses the right to use executory process to foreclose and evict the home buyer. Instead, it has to proceed by ordinary process. Also, the lender usually loses any right to claim that the debt was accelerated, plus attorney’s fees and other costs/fees, and then have an action for the deliquency amount against the home buyer. So, instead of getting title to the property and an eviction order at in ex parte proceeding (and so being able to start trying to re-sell it) in 15 days or so, the matter proceeds as ordinary civil litigation (meaning that if the buyer has even a marginally competent attorney, it will take 18 months to get to trial), and the lender may not have the possibility of a pursuing a deficiency judgment against the buyer. This means that the buyer can usually negotiate a favorable settlement with the lender, so that the lender gets clear title and possession sooner (and may agree to be responsible for any liens, property taxes, repair costs, etc.).