Foreclosure moratorium - why?

Yes indeed.

Can you imagine the position of the bond holders? They think their bond represents clear title to the underlying loan documents. It won't be just mortgage writers in trouble, the folks who put together the secruities are in deep do-do too, including the lawyers who prepared the documents. There are a lot of fish in this pot.
 
I think that is the core problem. The shortcuts will have to be corrected and the extra time and costs will bring the system to its knees.
It’s a problem but I don’t think it will bring the system down. Most likely, states will enable separate mortgage / foreclosure process to deal with it. I think it’s a giant PITA and greatest benefit will be to lawyers and deadbeats, but the banks will manage. The media and the blogs, however, are going to have a blast.

Can you imagine the position of the bond holders? They think their bond represents clear title to the underlying loan documents. It won't be just mortgage writers in trouble, the folks who put together the secruities are in deep do-do too, including the lawyers who prepared the documents. There are a lot of fish in this pot.
Agree.

Of late there has been much discussion on S&P profit margins being above historical levels. I think this type of cost cutting has led to some of that and we may be seeing the first signs of costs going back up faster that revenues and margins falling again.
 
If you own the mortgage and the chain of signatures is incomplete, you go to court, establish the existence of the mortgage, affirm it is not repaid, then the previous participants attest it is not repaid up to the break, then allow the homeowner to demonstrate it is. IOW, you bring all the parties together that were involved at one time and they all agree. It is expensive and time consuming but there's no way the homeowner is relieved of his/her obligation to pay.


Not exactly. What do you mean by "Own the mortgage" ? Do you mean "own the mortgage NOTE ? "

a mortgage is a type of transaction not a type of property
e.g. Mortgage
A legal document by which the owner (i.e., the buyer) transfers to the lender an interest in real estate to secure the repayment of a debt, evidenced by a mortgage note. When the debt is repaid, the mortgage is discharged, and a satisfaction of mortgage is recorded with the register or recorder of deeds in the county where the mortgage was recorded. Because most people cannot afford to buy real estate with cash, nearly every real estate transaction involves a mortgage.

mortgage legal definition of mortgage. mortgage synonyms by the Free Online Law Dictionary.

You can have possession of a note, and an equitable interest in the note without being the legal owner of the note, due to the failure of an indorsement. Under the UCC

(c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.

Without the indorsement there is no negotiation of the note , so the transferee is a mere possessor.
 
I think that is the core problem. The shortcuts will have to be corrected and the extra time and costs will bring the system to its knees.

Banking stock anyone?
I don't see this bringing the system to it's knees. It'll hurt the banks. They made their own mess. But IMO at most it will really slow things down and reduce banking profits.

And it might really help the folks trying to sell their houses that NEVER had a foreclosure, because buyers might not want to touch foreclosed properties for a while until title issues are well settled. So non-deadbeat homeowner/sellers might be helped temporarily.

Audrey
 
And it might really help the folks trying to sell their houses that NEVER had a foreclosure, because buyers might not want to touch foreclosed properties for a while until title issues are well settled. So non-deadbeat homeowner/sellers might be helped temporarily.
Good point. Those with no foreclosure history and also long time owners with high levels of equity might just get a break here.
 
I think it’s a giant PITA and greatest benefit will be to lawyers and deadbeats, but the banks will manage.
Luckily many of those fine institutions have already employed platoons of people who can sign paperwork really quickly...
 
"To repeat: if the chain of title of the note is broken, then the borrower no longer owes any money on the loan."


This is the sort of arrant nonsense that lands the gullible in a heap of trouble. Typically, there are two separate instruments involved when one obtains a loan secured by a mortgage -- the first is the promissory note, which says essentially "I owe Bank X $1000". The second is the mortgage deed, which says essentially "to secure my obligation under the promissory note, I grant a mortgage on my house". Typically, they are both owned by the same party. When things are screwed up, they can become separated.

Hence, one seeking to enforce the promissory note may find they are not the owner of the mortgage deed. The noteholder can remedy the problem through the means suggested above and, once it obtains the mortgage deed, commence a foreclosure. But, importantly, the holder of the defaulted note need not do so. It can instead, commence an ordinary contract action against the borrower and obtain judgment on the note itself. It may then enforce that judgment by executing on any unencumbered property of the borrower. This is not the best result for the lender, but it is possible. Importantly, the borrower always owes the money to the current holder of the note, whoever that may be.* It is dangerous to give people the impression they are off the hook when there is a defect in the chain of title. They are never off the hook.

It is also important to note that even a mortgage that has never been filed on the land records can still be enforced against the borrower. Filing merely protects the lender against subsequent lienors by establishing priority in time. Again, the borrower is never off the hook.

I don't know what would possess someone to peddle such garbage. It is really dangerous.

* Note: this assumes the current holder is the holder in due course. If not, the last legitimate holder in due course can enforce the note. In any event, it will eventually be sorted out and, as noted, the obligation never just disappears.
 
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I don't know what would possess someone to peddle such garbage. It is really dangerous.
John Mauldin used to write useful stuff, but now he's passing on hearsay from his fishing buddies... and asking them to check in with him if they want credit?!?
 
John Mauldin used to write useful stuff, but now he's passing on hearsay from his fishing buddies... and asking them to check in with him if they want credit?!?
Yeah, I'm really shocked that John Mauldin would peddle such obvious garbage. It didn't sound right to me when I read it.

Audrey
 
Well, luckily BofA has taken the initiative to get things rolling in Hawaii again, as well as 22 other states.

Bank of America resumes Hawaii foreclosures | Pacific Business News
Bank of America Corp. said Monday that it has completed reviewing its foreclosure process in 23 states, and has begun preparing 102,000 foreclosures to be resubmitted in the courts. The company said in a statement that it expects to resubmit the first of the foreclosure affidavits by Oct. 25.

I wonder how long it took their reviewer to sign off on all those foreclosure packages?
 
"To repeat: if the chain of title of the note is broken, then the borrower no longer owes any money on the loan."


This is the sort of arrant nonsense that lands the gullible in a heap of trouble. Typically, there are two separate instruments involved when one obtains a loan secured by a mortgage -- the first is the promissory note, which says essentially "I owe Bank X $1000". The second is the mortgage deed, which says essentially "to secure my obligation under the promissory note, I grant a mortgage on my house". Typically, they are both owned by the same party. When things are screwed up, they can become separated.

Hence, one seeking to enforce the promissory note may find they are not the owner of the mortgage deed. The noteholder can remedy the problem through the means suggested above and, once it obtains the mortgage deed, commence a foreclosure. But, importantly, the holder of the defaulted note need not do so. It can instead, commence an ordinary contract action against the borrower and obtain judgment on the note itself. It may then enforce that judgment by executing on any unencumbered property of the borrower. This is not the best result for the lender, but it is possible. Importantly, the borrower always owes the money to the current holder of the note, whoever that may be.* It is dangerous to give people the impression they are off the hook when there is a defect in the chain of title. They are never off the hook.

* Note: this assumes the current holder is the holder in due course. If not, the last legitimate holder in due course can enforce the note. In any event, it will eventually be sorted out and, as noted, the obligation never just disappears.

Mostly agree except that state law may require an election that to proceed on the note alone discharges the security. Otherwise the anti deficiency statutes would be ineffective. More often the nonrecourse provisions are written into the note, which makes it unenforceable in an ordinary in personnam contract action
 
Mostly agree except that state law may require an election that to proceed on the note alone discharges the security. Otherwise the anti deficiency statutes would be ineffective. More often the nonrecourse provisions are written into the note, which makes it unenforceable in an ordinary in personnam contract action
The election of remedies issue was what I was hinting at when I said that it was less than ideal for the holder to proceed on the note alone, but my post was already filled with enough jargon to choke a horse. I must admit that I speak from the perspective of living and practicing in a recourse state, so I didn't consider that last point.
 
And it might really help the folks trying to sell their houses that NEVER had a foreclosure, because buyers might not want to touch foreclosed properties for a while until title issues are well settled. So non-deadbeat homeowner/sellers might be helped temporarily.

Audrey

It may be that title insurance will be unavailable for foreclosure properties until this mess is settled. Absent a clear court-approved title on a foreclosure a Title-insurance company would be nuts to write a new policy. The liability otherwise would be tremendous.
 
What is it about the 23 states that allows them (BofA) to proceed?


United States Map of Title Theory States and Lien Theory States; What's the difference between a Title and a Lien State? Like politics and real estate, all foreclosures are local. BofA is restarting foreclosures in judicial foreclosure states. Actually, I think the problem is more acute in nonjudicial foreclosure states, where sloppy practices and MERS issues might be more problemmatic since a judge is not involved in deeding the property by foreclosure sale in those states. I wouldn't want to provide title insurance in those nonjudicial foreclosure states until a lot of the dust has settled!
 
They can start submitting affidavits any time, whether or not the judges accept them is another matter.
 
They can start submitting affidavits any time, whether or not the judges accept them is another matter.
Maryland Court Approves New Foreclosure Rule

Updated: Tuesday, 19 Oct 2010, 10:56 PM EDT
Published : Tuesday, 19 Oct 2010, 3:16 PM EDT

  • Talentheadshot_AlnwickM_NEW_20090126151605221_60_45.JPG
    Melanie Alnwick
    melanie.alnwick@foxtv.com
BY MELANIE ALNWICK/myfoxdc
ANNAPOLIS, Md. - The Maryland Court of Appeals has approved a new rule for dealing with foreclosure cases.
The rule could require lenders to prove the facts in their foreclosure documents, if a judge has reason to doubt their accuracy.
Last week, the Maryland Judiciary Rules Committee sent a letter to the Court of Appeals asking for the emergency ruling because evidence of robo-signing on foreclosure documents, "has shaken the confidence that the courts have traditionally given these kinds of affidavits.
The plan is to set up special masters or examiners (qualified Maryland lawyers) to review the suspect cases. Court costs will be paid by the lender or person who brought the case.
Court testimony revealed that lenders have been scrambling to cover their tracks. In Prince George's County alone, 4400 corrective affidavits have been filed, which essentially admit to the court that the original signatures were not accurate.
"The use of bogus affidavits,..." the letter reads, "...constitutes an assault on the integrity of the judicial process itself."
 
I agree... and I don't think my post said otherwise...

I am just guessing here, but I would think that SOMEONE filed a lien at some point in time.... I think the problem is that Bank A filed the lien, then put the loan in MERS... sold it to Bank B who did not file, sold to Bank C who did not file, sold it to consolidator Z who did not file, who sold it to Trust ABC who did not file... and now the trust wants to foreclose and the courts say 'you don't own this mortgage... Bank A does...'



As for people who say that there was a foreclosure on a paid off mortgage... can you give links:confused: I still have not seen any proof of this.

OK>>>>> finally saw one... someone who has all the docs to show he refinanced and still the bank tried to foreclose...

Hope he gets a decent settlement for his troubles...

Loren Steffy: Texas case shows truth about mortgage issues | Business: Loren Steffy | Chron.com - Houston Chronicle
 
OK>>>>> finally saw one... someone who has all the docs to show he refinanced and still the bank tried to foreclose...

Hope he gets a decent settlement for his troubles...

Loren Steffy: Texas case shows truth about mortgage issues | Business: Loren Steffy | Chron.com - Houston Chronicle

I agree he needs to get a nice big check and apology from BofA. This situation is just so ugly. I am still holding on 3 banks stocks (WFC, USB, BBT) because I think they are the best of bad lot. I am seriously wondering though if Banks aren't going to take another huge hit as reality set in and we find they idiots lost the paperwork on billions of dollars worth of houses and now can't foreclose.
 
...we find the idiots lost the paperwork on billions of dollars worth of houses and now can't foreclose.
I don't think foreclosure will be an issue. It is just the extra costs of processing the paperwork that will further erode their income.
 
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