These bloggers are crackheads. The foreclosing lawyers are going to need to make sure that they have all the proper paperwork necessary to show that their clients own the loans. That should not be hard to do and it is the way that things should be done.
As for the MA decision, the court decision was not easy to read and I think most of these bloggers have it wrong. An assignment in blank that is not signed before notice of sale and foreclosure BY ITSELF is not sufficient — but if the ultimate assignee can show a chain of title from the last recorded mortgagee to the ultimate assignee through PSA and MLPA schedules, the assignment in blank does not have to be in recordable form prior to notice of sale and foreclosure.
Bottom line — there are virtually NO cases where the bank is trying to foreclose and never gave the borrower the money. Everyone knows the borrower got the money. If the borrower received the money and cannot pay, the bank should be able to foreclose.
What if the so called chain of title is blank too (actually of lien, if it’s like the way I bought my own house with a mortgage and X% down)? This leads to the current debacle. The banks may all trust MERS to “say the right thing” but will the courts do likewise? This is not only a “deadbeat” problem as you imply, but also a clouded title problem for people who have always faithfully paid on a mortgage and now want to sell outright.
Then why can't they do it? Why are they fighting discovery at every turn?
Bottom line — there are virtually NO cases where the bank is trying to foreclose and never gave the borrower the money. Everyone knows the borrower got the money. If the borrower received the money and cannot pay, the bank should be able to foreclose.
The banks in virtually all of the cases forwarded OTHER PEOPLES MONEY , not theirs ,, those investors that created the pools for table funding , if they have the note properly assigned to them , can foreclose ... BUT NOT THE BANK that was nothing but a straw man to the transaction and now wants a FREE HOUSE to resell.
An assignment in blank is a bearer instrument, and many states regulate bearer instruments heavily. You've got to jump through a lot of hoops to issue them, and the mortgage companies didn't do that, and in many cases are FORBIDDEN to do that.
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1. In some states you CAN'T endorse a mortgage in blank. An attempt to do so is void as if the endorsement never happened. This is a monumental cluster**** as if the originator is then paid in full he has no standing EITHER, and what you've managed to do is create a naked promissory note with no deed of trust associated with it. For obvious reasons this is a very big problem and MAY be unrecoverable. MERS cannot override state legal requirements regarding endorsement of deeds in these instances.
2. In the case where MERS has a blank endorsement they specifically state they have a bearer instrument. But a bearer instrument to which coupon is associated requires the payment of an excise tax post the early 1980s, which is why they're not issued in the general case any more. If there's a private letter ruling on this from the IRS (possible) it has not been disclosed, but if not, this is a potential nuclear bombshell since the excise tax is 1% per year due at creation on the instrument. For a 30 year mortgage this is an effective tax of 30% of the face value, due UP FRONT. Aieeee! Not paying your taxes is of course a serious matter. Being an excise tax liability would presumably attach to the creator, in this case, the originating lender who endorsed in blank.