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Delawhere Jack
1000+ Penny Miser Member
USA
1680 Posts |
 Posted - 03/29/2008 : 14:59:47
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I think it was on this forum that I saw a post about people preventing foreclosure by demanding proof that the foreclosing party actually held their note. The article below contains another reference along those lines, and some other pretty scary stuff as well.
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A quote from the article:
The problem that no one is focusing on right now is the tracking of the mortgage itself to the structured product, which has broken down. That means in these items many can't connect the underlying mortgage to the structured investment product (derivative).
So far courts have held that the only entity that can foreclose is the entity that actually lent the money. The average guy does not know that with an attorney to protect him he has a free house!
The entity that actually lent the money has sold the mortgage and been paid. Therefore where is the incentive for original lender to foreclose? The answer is there is none. Bankers do not help bankers in the same way that sharks do not help sharks.
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"Educate and inform the whole mass of the people... They are the only sure reliance for the preservation of our liberty." Thomas Jefferson
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Ardent Listener
Administrator
USA
4841 Posts |
Posted - 03/29/2008 : 18:27:30
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| Nice find. I don't know if it is ture of not, but if true, expect the law to change real soon. |
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Think positive. |
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horgad
1000+ Penny Miser Member
USA
1641 Posts |
Posted - 03/30/2008 : 11:12:33
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There have been some real cases in Ohio already where a holder of 2nd, 3rd, 4th hand mortgage paper has tried to foreclose. And it is true that at least some of the case have been thrown out by the judge becuase the papers presented did not provide sufficient proof of who really owned the house.
I don't think that the fact that your bank sold your mortgage automatically means you get a free house, but there are certainly houses out there where the paper trail has become so muddled that nobody can tell or prove for sure who owns the house. |
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swusc
Penny Hoarding Member
USA
553 Posts |
Posted - 03/30/2008 : 21:03:52
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I don't believe that.
The MBS are usually issued by entity set up to hold the mortgages. That entity holds the mortgage. They can foreclose as they lent the money. They usually have hired a bank to manage the mortgages, which is usually the a bank or mortgage company. The MBS are owed by the entity that holds the mortgages (that is all it holds so it is secured by those mortgages).
The bank is an agent of the mortgage owning entity, so they should be able to foreclose. I guess some states could have different laws which change things up.
-SWUSC |
`Everybody is ignorant. Only on different subjects.' Will Rogers
"This is the shabby secret of the welfare statists' tirades against gold. Deficit spending is simply a scheme for the "hidden" confiscation of wealth. Gold stands in the way of this insidious process. It stands as a protector of property rights. If one grasps this, one has no difficulty in understanding the statists' antagonism toward the gold standard." Alan Greenspan, 1966. |
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fiatboy
Administrator
912 Posts |
Posted - 03/30/2008 : 21:56:42
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| The details are a little foggy, but if I remember correctly, what horgad mentioned took place in Cleveland late last year. Homeowners took Deutschebank to court for trying to foreclose on their homes, and the judge asked Deutschebank to provide the actual mortgages. Deutschebank was unable to do that, so the case was dismissed. Someone correct me if I'm wrong about any of this. I'm just going by memory here. |
"Bart, it's not about how many stocks you have, it's about how much copper wire you can get out of the building." --- Homer Simpson |
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horgad
1000+ Penny Miser Member
USA
1641 Posts |
Posted - 03/31/2008 : 07:17:13
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OK I broke out the Google...
The gist of the story is that 14 foreclosures were thrown out in Ohio which by itself does not seem like a big deal. However the case sets a precedence that raises the bar of proof needed by banks to foreclose. Anybody (with a lawyer), note that it was a Federal judge, can now fight a foreclosure and demand that bank show more proof of ownership and refer to this case. So far I have not heard anything more come out of it (other than it apparently is spawning some internet rumors).
Also I would say that just because the bank can't prove that they own the house, doesn't mean that you get a free house since you can't prove that you own it either. Of course, if nobody can prove who owns it, possession will probably win out.
From the New York Times (2nd hand):
You must be logged in to see this link.
-------QUOTE-------
A federal judge in Ohio has ruled against a longstanding foreclosure practice, potentially creating an obstacle for lenders trying to reclaim properties from troubled borrowers and raising questions about the legal standing of investors in mortgage securities pools.
Judge Christopher A. Boyko of Federal District Court in Cleveland dismissed 14 foreclosure cases brought on behalf of mortgage investors, ruling that they had failed to prove that they owned the properties they were trying to seize.
* * * On Oct. 10, Judge Boyko, 53, ordered the lenders representative to file copies of loan assignments showing that the lender was indeed the owner of the note and mortgage on each property when the foreclosure was filed. But lawyers for Deutsche Bank supplied documents showing only an intent to convey the rights in the mortgages rather than proof of ownership as of the foreclosure date.
Saying that Deutsche Bank's arguments of legal standing fell woefully short, the judge wrote: The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the court to stop them at the gate.
A spokesman for Deutsche Bank declined to comment on the ruling. But the inability of Deutsche Bank, as trustee for the pools, to produce proof of ownership at the time of the foreclosures will fuel borrowers' concerns that they are being forced out of their homes by entities that may not even hold the underlying loans.
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swusc
Penny Hoarding Member
USA
553 Posts |
Posted - 03/31/2008 : 10:27:18
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quote:
Originally posted by horgad
OK I broke out the Google...
The gist of the story is that 14 foreclosures were thrown out in Ohio which by itself does not seem like a big deal. However the case sets a precedence that raises the bar of proof needed by banks to foreclose. Anybody (with a lawyer), note that it was a Federal judge, can now fight a foreclosure and demand that bank show more proof of ownership and refer to this case. So far I have not heard anything more come out of it (other than it apparently is spawning some internet rumors).
Also I would say that just because the bank can't prove that they own the house, doesn't mean that you get a free house since you can't prove that you own it either. Of course, if nobody can prove who owns it, possession will probably win out.
From the New York Times (2nd hand):
You must be logged in to see this link.
-------QUOTE-------
A federal judge in Ohio has ruled against a longstanding foreclosure practice, potentially creating an obstacle for lenders trying to reclaim properties from troubled borrowers and raising questions about the legal standing of investors in mortgage securities pools.
Judge Christopher A. Boyko of Federal District Court in Cleveland dismissed 14 foreclosure cases brought on behalf of mortgage investors, ruling that they had failed to prove that they owned the properties they were trying to seize.
* * * On Oct. 10, Judge Boyko, 53, ordered the lenders representative to file copies of loan assignments showing that the lender was indeed the owner of the note and mortgage on each property when the foreclosure was filed. But lawyers for Deutsche Bank supplied documents showing only an intent to convey the rights in the mortgages rather than proof of ownership as of the foreclosure date.
Saying that Deutsche Bank's arguments of legal standing fell woefully short, the judge wrote: The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the court to stop them at the gate.
A spokesman for Deutsche Bank declined to comment on the ruling. But the inability of Deutsche Bank, as trustee for the pools, to produce proof of ownership at the time of the foreclosures will fuel borrowers' concerns that they are being forced out of their homes by entities that may not even hold the underlying loans.
Sounds like bad record keeping by ole Deutsche Bank. I guess if they can't prove they are owed the money, then they are screwed.
I wouldn't guess this is a huge deal as most banks will get better records. I know you can view a lot of mortgages online by looking at filed court records, since the documents have to be filed at the court house.
-SWUSC |
`Everybody is ignorant. Only on different subjects.' Will Rogers
"This is the shabby secret of the welfare statists' tirades against gold. Deficit spending is simply a scheme for the "hidden" confiscation of wealth. Gold stands in the way of this insidious process. It stands as a protector of property rights. If one grasps this, one has no difficulty in understanding the statists' antagonism toward the gold standard." Alan Greenspan, 1966. |
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