Posted on 01/21/2011 1:10:43 PM PST by survivingcalifornia
This is a follow-up to: “Man vs. Bank“
Inquiring minds are back in Utah looking at the post-game analysis of the court awarding clear title to a homeowner because the lending institution couldn’t prove they owned the $132,000 note. An article in The Salt Lake Tribune entitled “How accurate are property records?“, explains the points of the case:
A Utah court case in which the owner of a Draper townhouse got clear title to the property, even though he still owed $132,000 on it, raises new legal and financial questions about a property-records database created by mortgage bankers.
The award of a title free of liens means that whoever owns the promissory note on the Draper property — likely a group of faraway investors — no longer has the right to foreclose to collect on a delinquent loan. Indeed, the townhouse owner has sold the property and kept the money. Those who own the promissory note probably don’t even know what occurred.
And [drumroll, please] MERS enters the storyline:
But there also was another entity listed on the trust deeds called the Mortgage Electronic Registration Systems (MERS). The Mortgage Bankers Association, the Washington, D.C.-based trade group that represents major mortgage lenders, created MERS in the mid-1990s.
MERS is a database where promissory note owners are recorded, with MERS itself then listed on trust deeds at county recorder offices as the “beneficiary” of the note instead of the real lenders or note owners.
The new arrangement greased the way for mortgages to be packaged together and sold to investors who were relieved of the need under the traditional system to record the true owner of the promissory notes and to pay the county recording fees, which average around $35. Attorneys charge MERS is largely an instrument to avoid paying fees every time a promissory note is sold and resold and eventually packaged with others and owned by group of investors.
During the latter part of the real-estate boom, hundreds of thousands of subprime loans were packaged and sold using the MERS system. MERS has registered about 31 million loans, the company’s chief executive said in congressional testimony in November. CEO R.K. Arnold also said in a 2009 deposition that the system had saved its members an estimated $2.4 billion that would have gone to county governments.
And here is the sticking point…the smoking gun:
Under the state’s quiet title laws, Keane said he did not have to name MERS or serve it legal papers in the lawsuit because it was not the legal owner of title to the property. Those were title companies. In addition, attorneys contend, MERS cannot be the “beneficiary” or holder of the promissory note because it readily has admitted it has no financial interest in any notes or mortgages.
The rest of the article in the SLTribune is excellent and is highly recommended.
“It is my sincere hope that this helps people understand what happened in Utah’s court case where a homeowner was given clear title to his house.”
So if I understand this right it’s the ‘DEAD BEATS” fault?
Huh?
The professionals didn’t do what they were supposed to do so the owner was given clear title. In other words, he didn’t have to pay his mortgage because it wasn’t recorded when the note was bought and sold over and over again.
If I understand it right, you still are obligated to pay the debt, but it has been separated from the property. Although a lien could be placed upon it( I think ). The problem is that the holder of the debt instrument, has a break in the chain and might no be able in court to prove he/she is the lawful owner...or if there is a legal remedy that it would take time and money to repair. It seems that these note holders don’t want to be left holding the costs, or due the cost to repair the pig in the poke security instrument they have been sold. They want Congress to pass a law spearing through all the states land laws.
If the Republicans attempt that, we will then know they're no better than the Democrats, and that our lawmakers are completely in thrall to the Banksterz.
To bad the bank didn’t didn’t have FReepper org.whodat representing them. He could have won this case for them. He has it all worked out.
>>our lawmakers are completely in thrall to the Banksterz.<<
Who else would it be if the Banksterz? The Voters? Now that is funny.
What Kartographer continues to try to mislead everyone with his ‘deadbeat’ rhetoric is that most loans in the past 10 years went through MERS. Which means those loans ALL have a clouded title, at least in Utah. And Massachusetts.
It still hasn’t seemed to dawn on him how much less a property is worth when prospective buyers can’t obtain title insurance for it.
It’s another stealth transfer of wealth by the bankers.
Two of the funniest posts of the day are in this thread. Yours and orgwag.dot being lead counsel winning the case. Ha!
Voters have long since gone the way of the horse and buggy.
Enjoy it while you can.
Naaah! This IS the greatest country on earth and they are not going to get way with this. Just call it a “hunch” but I believe justice will prevail.
I don't believe a lien can be placed on the property. Title was given free and clear because MERS broke property law. The original owner is still obligated for and can be sued for what is owed. But because the chain of title was broken and the property awarded free and clear to the owner, those suing can only go after money.
That's the way I see it. And I get no money for my opinions.
Have faith my FRiend! The tracks are in place, the engine’s fires are stoked, and the train is starting to move.
I think that it would be Poetic Justice if the lenders were to lose $100,000+ notes just because they were greedy and didn’t want to pay a $35 fee.
I wonder how many other states have legal language that could lead to the same or similiar results.
But, I think we agree that the obligation, even if separated from the property, still exists out there, somewhere. Maybe more in the nature of a credit card. It might be dead/discharged if not acted upon after...ten year?. Interesting.
Yes. The obligation remains. But foreclosure is no longer an option. And with this MERS mess, he who has the obligation does not even know who to pay.
I speculate that the best course of action for one in that situation is to set up a bank account and make deposits equivalent to the suspended mortgage payments. That way he shows good faith and is prepared in case he’s taken to court over the obligation.
Very murky. I’d hate to be in that situation.
No, you are wrong. You are not obligated to pay for on a note that is not recorded. It becomes an unenforcable contract.
This isn’t hard to understand. I think people are making this much more difficult than it is. Think of an IOU. You write one out and sign it. The person you give it to loses it. The debt is no longer a contract. This is EXACTLY what happened. A variation of this is: take a $10 bill out of you wallet. This is a Federal Reserve Note. In other words, it is an IOU from the Fed Reserve. If you lose it, you don’t get to spend it. If you photocopy it, the copy doesn’t replace the original.
The deadbeats are the professionals who didn’t follow basic and time tested rules. And they didn’t protect their clients who bought the paper. So, they are the real deadbeats.
Justice did prevail. This is a correct decision. If a company (who knows the importance of the note) decides to not take professional care of it, then they lose.
In fact, I don’t think that the decision is enough. I think that because this is systemic, that criminal charges should be brought and lots of higher executives should go to prison. And they should also be brought up on civil charges. Gross negligence comes to mind. Apparently thos high salaries that the made weren’t earned. Rico could probably be invoked since they conspired to not to the jobs they were suppose to.
What would kill you in this scenario is the late payment penalties and attorney’s fees.
In California they used to be about double the amount. If I remember correctly, they changed the law on what is allowed and lowered the amount drastically.
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