For about half of U.S. mortgages, there is no tracking mechanism.

MERS rules don’t allow members to submit lost-note affidavits in place of mortgage notes.   A lot of companies say the note is lost when it’s highly unlikely the note is lost.  Many complaints routinly add a Count in their complaint for the “Restablishment of a lost Note”.  If you get served with a Foreclosure Complaint that has this count in, it should be a red flag. 

Saying a note is lost when it’s not really lost is wrong.  Saying a note is lost when it really can’t be located, means that the person foreclosing on your property as a major problem.  Either way, it’s not good the the Lender.

Now banks have been keeping track of these Mortgage Notes for hundreds of years without many major problems.  But times have changed, technology has changed.

So if you start from the point that these notes aren’t really lost, then it’s very concerning, that they are saying that they have when they haven’t.  Why are they doing this?  Remember these foreclosure mills are under very strict time restainsts imposed by the servicing companies.  Many agreements provide for penalties in the form of a fee reduction, if the case takes longer than the time frame imposed by the servicer.

If you start from the premise, that these notes are lost, then you’ve got a viable defense to the foreclosure action.  A response to the complaint challenging this lost note clause to preserve your rights and your home.

One of the problems here is that the homeowner fails to file any defence or response to the complaint, and the case goes by way of a “Default Judgement” in favor of the lender.

This practice must be challenged more often.

Either history repeats itself, or banks never learn, or perhaps it is just that they don’t care.  One or more of these scenarios is the essence of the story here.

A Brooksville, Florida family recently returned home to find it completely trashed out, the locks changed, and all their personal possessions removed from the home and destroyed.

Although the homeowners were late on their mortgage payments, there was no foreclosure action filed against them.  Since Florida is a Judicial State, the bank has no rights to take control of the property or remove the contents inside until they obtain title to the home through a Foreclosure lawsuit, and then only if they are the successful bidder at the auction.

This case makes clear two concepts of which every homeowner should be aware.

            Banks make mistakes, sometimes with severe consequences. 

            Local Law Enforcement at the highest levels side with the Banks or just don’t care, take your pick.

The basic facts here are that someone, broke into another person’s home, and stole (depriving the true owner the use and possession) of personal property.  Florida Law defines theft as:

812.014 – Theft

1. A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

a.                   Deprive the other person of a right to the property or a benefit from the property.

b.                  Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

If the value of the property is greater, than $300 the theft becomes “Grand Theft” and the crime becomes a third degree felony punishable by up to 5 years in prison. 

It is inconceivable that when these facts were presented to the Hernando County Sheriff’s Department, they initially declined to investigate, and said it was a “Civil Matter” to be worked out in Civil Court, not the criminal system.

When questioned about the trash-out, 21 Mortgage Corporation said it was ok because Florida was a Self-Help State.  WRONG!!!  You had better have a Court Order awarding you possession and title to the home before you start doing things like this.

Yet it was not until the story broadcast on a local television station, that the Sherriff’s Department, changed their tune and decided to investigate the matter.  Here, the bank, 21 Mortgage Corporation in Knoxville, hired a local company to do the job.  The bank has since gone into “No Comment” mode.

Think about this, if you hired someone to remove every piece of personal property from someone’s home that you did not own, don’t you think the Sheriff’s Department would come down on you like a ton of bricks?  However, apparently if you are a Bank hiring a company that does this, it’s OK.

Now flash back to 2009, and look at the case of Charlie and Maria Cardoso who purchased a home in Spring Hill, also in Hernando County, Florida for cash.  There was no Mortgage even remotely involved.  They rented the home to a single mother, who answered her door one day in July to find a crew of three men who told her they were there on behalf of Bank of America, to clean out the house and change the locks. 

She called Charlie and Maria, the owners, who called the bank, who told them it was a mistake and the problem would be fixed.  BOA placed a lock box on the front door.  When no confirmation came that the “problem” was fixed, and the lock box remained on the door, Charlie and his son drove to Florida.  He had to prove to the Sheriff’s Department that he owned the home, and was allowed to break into his own home through the back door and removed the lock box with bolt cutters.

In the mean time, the tenant had left; the water and electricity turned off, and the pipes had frozen.

Whoops, the Bank of America meant to clean out a house down the street and about 10 doors down.  The Cardosos and a Realtor employed by Bank of America tried to tell BOA that it had the wrong house, but they pushed ahead anyway.

The couple, who are now suing BOA, hired an attorney. Seems like BOA did not listen to people they pay to advise them in these situations.  Sound familiar?

Judicial States

We are going to start with the states that provide for a judicial path to foreclosure, and we will mostly use examples from Florida.  This is because Florida’s Rules of Civil Procedure (the rules that both parties must follow in Court – unless you are in Lee County, Florida – more on this elsewhere) are based on the Federal Rules.

The second thing you need to know, after you have determined your legal status (remember our exercise in Part One – the Official Records Search) is what is the timetable you are facing.

In Florida, and most judicial states, to begin the foreclosure process in court, the lender must file a “Complaint” against you, and everyone who may have a right to ownership or possession of the land.  The Complaint is supposed to set out each one of the elements that we listed in our previous article, along with a copy of the note and Mortgage. Private process servers who have been approved and appointed by the Court must serve it on each one of the defendants, usually in the past by a member of the local sheriff’s department, but more recently. If the Process Server cannot server a particular defendant, then the service is usually made by publication (discussed in another article).

 TIME

At this point, time is working against you.  Court rules require to file a written response to the complaint within the time period shown on the summons (usually 20 days) and to file a copy with the Clerk of the Court, as well as the PlaintiffThis written response is not optional You will be able to find a sample response on our website,

The Lender will also usually file a document called a “Lis Pendens” along with the Complaint, and this document is recorded in the official records of the County where the property is located.  This document server to place the world on notice, that there is some type of litigation going on that my affect the title to the owner’s property. It must contain a legal description of the property, and state the nature of the dispute. The Lender files this so that the homeowner cannot sell the property to a third party, and not disclose the Foreclosure lawsuit. If he does that, the third party is charged with the knowledge of that lawsuit, as it is a matter of public record, and that third party, cannot now claim that he or she thought that they were buying the property free and clear. If they do go ahead with the purchase, not only will they necessarily take title of the property subject to the Mortgage in questions, but will in all likelihood be made defendants as well, and have to defend their actions. The “Lis Pendens” does not require a response, unless you are filing a Counter-Claim against the lender, more on that later.

     But don’t stop there, make copies of all letters, place them in the book in the appropriate correspondence section (from lenders, servicer, broker, or from others).

      You should also look into any consumer complaints that have been made about the lender or servicer in the past.  You should contact, either by phone or online at least the following agencies:

1. Local Consumer Agencies
2. State Attorney Generals
3. Licensing entities
4. Banking entities
5. Better Business Bureau
6. Newspapers
7. SEC Filings
8. State Corporate Filings

     Look for other lawsuits, on the Federal Level you can get them through PACER, and you will need to look in each county clerk’s records on the State level.

      Also try and get data from the Home Mortgage Disclosure Act which can show the number of mortgage applicants of a particular company by race, income and geographical location, which may be useful down the road.

      While we’re at it, we going to add a section to the notebook, called:

8.     Contacts

      This is where you want to make a list on everyone you have come into contact with during the course of your Mortgage, including, but not limited to:

1. Name and contact information of the creditor.
2. Name and contact information of the closing agent.
3. Name and contact information of the loan servicer.
4. Name and contact information of your attorney / advisor.
5. Name and contact information of the broker, if any.
6. Name and contact information of any inspectors.
7. Name and contact information of anyone who has provided counseling.

      In order to defend a Mortgage Foreclosure Suit, you need to know just what it is that that the lender (or the Plaintiff) MUST PROVE in order to win.  The essential elements or parts of a foreclosure with an explanation of each part of the complaint are:

Execution of a note and mortgage with evidence of recording in the Official Record Books of the County where the land is located, with copies of those recorded documents attached to the Complaint.

          This means that there must be a promissory note (the IOU) and a Mortgage (this creates the lien on the property), that are signed by you, the homeowner.  Both of these documents must show that they have been recorded in the Official Records of the County where the property is located.  Finally copies of the recorded Promissory Note and Mortgage must be attached to the complaint.

A legal description of the property;

          This means that in the Mortgage document itself, the property that is being foreclosed must be sufficiently described so that it may be located and identified without oral testimony.

Documentation of the Plaintiff’s status as owner and holder of the note and mortgage.

          This is where many Mortgage Foreclosures defense attorneys are using to attack foreclosures.  We have many other articles and sections in our web site and forum which address this issue in detail.  We will try and add as many links as we can to those articles below:

Joinder of persons with title and / or possessory interests;

          This means that anyone who has an ownership interest in the property must be named as a defendant in the foreclosure suit, as well as anyone who has a right to live on or possess the property.  For example, if the property is owned by a husband and a wife together, both of them must be made defendants.  If the property was title (owned) by a two people without rights of survivorship, and one of them has died, the heirs of the dead owner will also need to be joined as defendants.  Also if the property is rented to another person, that person must be made a defendant.

A description of the default and the balance due;

          The complaint must also describe how the Mortgage went into default, was it a missed payment, failure to maintain insurance, make tax payments?  The specific nature of the default needs to be laid out here, as well as stating what the balance due was at the time of the default.  Any time that a lawsuit is based upon some type of default, compliance with notice provisions can be critical.  There are various ways a default can occur such as:

• default in payment of an installment of principal or interest for fifteen days
• default in the payment of any tax, water rate, sewer rent or assessments after notice and demand
• actual or threatened demolition or removal of any building
• on the premises without written consent of the mortgagee
• failure to maintain the buildings on the premises in reasonably good repair;
• failure to comply with any requirement or order of notice
• A violation of law or ordinance issued by any governmental department within a stated period of issuance thereof.

Notice of Default, the form and contents:

Before the lender can accelerate the loan, it first has to fulfill its duties under the Acceleration and Remedies paragraph.  The lender has to send the borrower a written notice that the borrower is in default and then give the borrower a chance to fix the problem – a chance known as the Right to Cure.

     What must the notice say? It’s all set out in the mortgage.  Now would be a great time to go to your Mortgage Book, and look carefully at the copy of your Mortgage.  I know that it’s filled with fine print, and technical language, but what you are looking for in particular is a paragraph that deals with the Default, Acceleration and the Remedies.  This paragraph spells out exactly what the lender needs to do in order to accelerate your Mortgage.  Usually they must state in the Notice:

(a) the default;
(b) the action required to cure the default;
(c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and
(d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by the Mortgage and sale of the Property.

     The notice usually must also inform Borrower of the right to reinstate the Mortgage after acceleration and the Borrower’s right to assert in the foreclosure preceding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.

      Simply put, the notice must tell you, the borrower:

(a) what went wrong;
(b) how to fix it;
(c) when it must be fixed, giving at least 30 days
(d) what happens if you don’t fix the problem – acceleration, foreclosure and sale of the home;
(e) that you have the right to fight back.

     If the lender fails to give this notice, fails to give it more than 30 days before acceleration, or the notice is missing any of these essential parts, they do not have the right to accelerate, and they do not have the right to foreclose.

Evidence of acceleration.

     We need to be clear on what “acceleration” means. In an old style typical “Straight Amortized Loan” each monthly payment pays off the current interest, and a portion of the principle.  At the beginning of the loan, most of the payment is applied toward interest, and at the end of the loan, most of the payment is applied toward then principal, as the outstanding principal is reduced each month.  The final payment, extinguishes the loan in full, and the lender must provide a “Satisfaction of Mortgage” and return the original Promissory Note to you marked “Paid in Full”.  Many of the loans made during the recent “subprime” period, were not these “Straight Amortized Loans”, but interest only, or balloon loans, which are different.

     However, if the borrower misses a few payments, or breaks the agreement with the lender in some other way, the lender typically has the option to “accelerate” the loan which makes the entire amount of the loan due immediately.

     The election to deem the entire principal due is an affirmative event that must be made in some way. This election may occur before the suit is brought.  Whether the election is made by letter or in some other fashion, the exercise must be a clear, unequivocal, overt act.

      Where a letter is the mode of exercising the acceleration, there is no required formality, which will always be a question of fact.  However, the letter must be sent by or on behalf of all mortgagees.  Thus, an acceleration letter made by one mortgagee and not joined by the other has been held insufficient.  Once proper authority can be demonstrated, individuals who can sign the letter include a corporate officer, a person in charge of mortgage servicing, an agent, a bookkeeper, a husband, or a wife. Filing the summons, complaint, and Lis Pendens with the county clerk has repeatedly been held to be the type of unequivocal overt act sufficient to evidence the election to accelerate.

     Acceptance of Late Payments after Acceleration: In Florida, post-acceleration payments may be accepted without waiving the right to the accelerated balance, if the Bank makes it clear to the customer that no waiver has occurred.

You’ve been laid off from work, lost your job, had a medical problem, or your Mortgage Interest rate has adjusted to an amount you can’t possibly pay.  You just can’t make the payments so you don’t.  Then…

You’ve receive that dreaded Notice of Default from your Mortgage Servicer.  What should you do?

Today, and in the coming weeks, we  are going to lay out a basic plan of attack, to help you keep your home.

First, we recommend making a Mortgage Foreclosure Defense Book, where you will keep all documents, letters, notices, and notes and logs of your conversations.  We suggest a ring binder, with a set of index tabs that you can buy from any office supply store for a couple of bucks.  You should label these index tabs like this:

1. Searches – On Line and at the Courthouse
2. Copies of Mortgage and Deed
3. Official Records
4. Correspondence with Lender
5. Correspondence with others
6. Mortgage Payments
7. Expenses charged by your Servicer
8. Court Pleadings
9. Expenses

  1.    Determine you legal status.  What do we mean by that?  You should make sure where you really stand in the legal process. DO NOT RELY ON WHAT YOUR SERVICER TELLS YOU, THEY LIE. Your first step should be to the check the Clerk of the Courts records for any law suits or other documents that may have been filed against you.  Sounds daunting and embarrassing, doesn’t it.  Well it’s not; it’s really easy, and private. 

1. Almost all Clerk offices in every state provide some type of on-line records check.  Start by googling “Clerk of Court your county or parish your state”.  Replace the words in italics with the name of the county or parish and state in which your home is located.
   1. Now there are two places you want to check here.  First is the Clerk’s Court Records.  This is a listing of all lawsuits filed in your county.  You will want to search by your last name and first initial.  This will bring up a listing of anyone who has either filed a suit by that name, or who has had a suit filed against them.   Look for your name or your spouse’s name and make a note of anything appearing there.  Print out the page or pages if you can.  These pages are going to go into your Mortgage Foreclosure Defense Book.  You are looking specifically for any documents called a “Complaint”, “Lis Pendens”, “Notice of Default”, “Notice of Sale” or other documents to that effect.  If you can, go to those documents on line, and print them on your home computer. Place copies in the “Search” section, “Official Records” section, and “Court Pleadings” section.  Place a post it note on each, noting that additional copies are in the other sections of your notebook.  Why in three places?  If you are in Court by yourself, or if your attorney should ask you for a copy of these documents, you need to be able to find the easily.  Remember, Foreclosure proceedings move quickly, Judges will not let you look through piles of folders or paperwork for documents.  They need to be at your fingertips, and you need to produce quickly when asked.  This will make that job easier, when it’s needed.

This occurred at the end of January 2011, and after repeated phone calls and emails, an answer comes from BOA on March 15, 2011.  They weren’t surprised, and even suggested future short sale buyers hire security companies and keep the home occupied 100% of the time to attempt to avoid this scenario.  Interesting, they didn’t suggest that they make any internal improvements in their own department.

The lawyer who gets this case, should make a bundle, and the new homeowner should be adequately compensated as the end result of the litigation, but as we all know, you just can’t replace those family photos and other memorabilia.

Briefly, the Administrative Order requires several things to occur when a residential foreclosure is filed in Monroe County.

First, (except under specific circumstances) the case is immediately referred to the Mediation Program unless the plaintiff and borrower agree in writing otherwise or unless pre-suit mediation was conducted.  This means that before the Lender can get a Default Judgment against the Borrower, they must go to Mediation.

Second, before the plaintiff applies for default judgment, a summary judgment hearing, or a final hearing the parties must comply with this Administrative Order, and the mediation process must be completed unless a notice of nonparticipation is filed by the Program Manager.

Third, the plaintiff must attach to the summons to be served on each defendant, a notice regarding managed mediation for residences in the format required by the Court so that the borrowers know about the Mediation process.

Fourth, it is the responsibility of the Lender’s Attorney, at the time the foreclosure suit is filed to file a form with the clerk of court that is completely filled out, and to electronically transmit a copy of this Form to the Mediation Program Manager along with the case number of the action and current and complete contact information for all of the parties. The contact information must include all contact information for all parties. Failure to comply may results in an Order to Stay Proceedings, sanctions, dismissal and/or a finding of contempt.

In this Form, plaintiff’s attorney must affirmatively certify whether the origination of the note and mortgage sued upon was subject to the provisions of the federal Truth in Lending Act, Regulation Z. In Form A, plaintiff’s counsel must also affirmatively certify whether the property is a homestead residence. Plaintiff’s counsel is not permitted to respond to any request on this Form with “unknown,” unsure,” “not applicable,” or similar nonresponsive statements.

Now here’s where the teeth of the Rule come in.  The Plaintiff’s Attorney must provide the borrower with all of the following information and documents from the plaintiff:

a) Documentary evidence the plaintiff is the owner and holder in due course of the note and mortgage sued upon;

b) A history showing the application of all payments by the borrower during the life of the loan;

c) A statement of the plaintiffs’ position on the present net value of the mortgage loan;

d) The most current appraisal of the property available to the plaintiff.

Fifth, at the Mediation, there as to be present (either in person or if by conference call [which has to be noticed at least 5 days prior to the Mediation]) the following people:

1. Lender’s Attorney
2. Lender’s Representative with the most recently filed form containing the information previously supplied to the Borrower who must have full authority to settle the case.
3. Borrower
4. Borrower’s Attorney if they have one

If at the beginning of  the time scheduled for mediation, any one of the parties are not present either in person, or by electronic means,  or if the Mediator determines that the Lender’s Representative does not have full authority to settle the foreclosure, and must remain on the communication equipment at all times during the entire mediation session.  If anyone appears electronically, they must have access to a facsimile machine.

So what happens if the borrower fails to appear at Mediation?  The Lender gets to proceed as they normally would throughout the litigation process and access attorney’s fees and costs.

What happens if the Lender’s Attorney or the Lender’s Representative with full authority to settle fails to appear at Mediation?  The Court can dismiss the Foreclosure Suit without prejudice (meaning they can refile it later) or impose other sanctions such as accessing attorney’s fees and costs if the borrower is represented by an attorney.

The Mediator files a report after the mediation, telling the Court whether the matter has been resolved, or if the parties are at an impasse.  All communications during the Mediation, other than the Report to t he Court, are confidential and inadmissible in any other Court Proceeding.

But what about the Cost?  The entire cost of Mediation (which remember, is required) is borne by the Lender.  They must pay $400.00 when they file the foreclosure action, and a balance of $350.00 within ten days after the Mediation is concluded.  There is absolutely no cost to the borrower.  These fees cover the cost of the Mediation session, the Mediator’s fees, the cost for the borrower to attend a counseling session with an approved mortgage foreclosure counselor, the cost of administering the Deed in Lieu Program and the Short Sale Program; and the cost to the Program Manager for administration of the managed mediation program which includes but is not limited to initial outreach to the borrower, providing neutral meeting and caucus space, scheduling, telephone lines and instruments, infrastructure to support a web-enabled information platform, a secure dedicated email address or other secure system for information transmittal, and other related expenses incurred in managing the foreclosure mediation program.

If you are an attorney who is filing 5 or more foreclosure cases in the county in a three month period, then you have some additional responsibilities.  You have to appoint two mediation Program liaisons, one of whom has to be a lawyer and the other a representative of the entity servicing the plaintiff’s mortgages, if any, and, if none, a representative of the plaintiff. The Lender’s Attorney must provide written full contact information of both liaisons to the chief judge and the Program Manager, update that information. The liaisons shall be informed of the requirements of this Administrative Order and shall at all times be capable of answering questions concerning the administrative status of pending cases and the party’s internal procedures relating to the processing of foreclosure cases, and be readily accessible to discuss administrative and logistical issues affecting the progress of the plaintiff’s cases through the RMFM Program. Plaintiff’s counsel shall promptly inform the chief judge and Program Manager of any changes in designation of the liaisons and the contact information of the liaisons. The liaisons shall act as the court’s point of contact in the event the plaintiff fails to comply with this Administrative Order on multiple occasions and there is a need to communicate with the plaintiff concerning administrative matters of mutual interest. Failure to appoint liaisons shall result in sanctions.

The Administrative Order also gives the lenders and borrowers the option to mediate prior to filing if they so chose.

The Chief Judge’s Order also provides all the forms that they parties need during this process, so there aren’t any excuses, that someone didn’t know what kind of form to file, or by filing some different alternative type of form that tries to skirt some important issue.

What this means to you as a homeowner.  Firsts, you get to have mediation with someone who can make a decision that will bind the bank.  In addition, the lender pays the entire cost of the mediation.  Second, the Court is requiring, a large amount of Discovery to be done, when the case is filed, rather, than requiring the homeowner to ask for it, and then waiting  and waiting for the Lender’s Attorney to come up with the paperwork.  If they don’t have the paperwork, they can’t even file the foreclosure case.  Third, “foreclosure mills” have to provide a point of contact for your case.   They shouldn’t be any long waits on hold while the person handling your case is looked up and located.  Finally, if the lender doesn’t comply, the case gets thrown out, or the Attorney is sanctioned.

We should make this a model for every Court district in the US.  It would cut down on those cases where no paperwork, or bogus paperwork is submitted with the complaint, it provides and non-judicial path of resolution for both parties, and it establishes a path of communication between all the parties.

Let’s make this happen nation-wide.

A Fort Benning Soldier, David Brash, on active duty had automatic mortgage payments made directly to his servicer.  All went fine for about 18 months.  But then he started to get calls and letters from the servicer about missing payments.  Brash then did what every homeowner should do, he call the servicer, PHH Mortgage Corp. doing business as Coldwell  Banker, and followed up with letters, pointing out the errors of their ways.

Of course, at the beginning of each of the telephone calls, he got the usual statement that the calls may be recorded or monitored for “training purposes”.  Well that didn’t work out so good for the servicer either.

Mr. Brash then contacted an attorney, in an effort to stop these calls and straighten the situation out.  The servicer said a number of times that they would straighten out the error.  In fact, they did make some credits to his account for the improper late charges.

Then it started all over again, and Brash’s attorney again contacted the servicer, claiming that they were violating the Real Estate Settlement Procedures Acts, when the servicer reported that Brash was “serious delinquent” in November 2009.

The Jurors listened to those recordings that the servicer made, with Brash on hold with “off shore customer service representatives” for up to 55 minutes either listening to music or just plain silence.  They saw the letters to him threatening to report his non-existent delinquency to credit bureaus.  They listened to a 60 minute conversation with one of these representatives while he explained how the servicer was in error, but that didn’t stop them.   The calls and letters just kept coming.

Brash filed suit in Federal Court, and two years later, a Federal Jury awarded him 1 million dollars in compensatory damages.  Those are damages for the actual losses he suffered, to his credit, his reputation and other actual losses.  They also awarded him $575.00 out-of-pocket expenses.  Then they added $350,000 in attorney’s fees which are permitted under the statute.  Finally, in a gesture to get the Servicer’s attention, they awarded Brash 20 Million, that’s right, 20 Million dollars in Punitive Damages.

How’s that a penalty for poor customer service????

When you miss a Mortgage Payment, how long will it take for the Lendor or Servicer to complete the foreclosure process, which is defined as when a bank takes possession.  Taking Florida as an example, if you live in the Tampa Metro Area, you have 633 days before you have to leave your home.  Remember, you are not making any Mortgage Payments during this time.  Use that money to hire a good Foreclosure Defense Attorney, who can generally get you additional time.

One, Mark Stopa, a Tampa Bay foreclosure defense attorney with about 1,000 clients says none of  his clients have lost their homes yet.  Of course he cautions them to save their money for that eventuality.

Several things have added time to these time lines.  The robo-signing fiasco last year, which lead  to a temporary moritorium on foreclosures, has added 21 days to the period.  “The public has become aware of their rights,” Stopa said. “The banks have been forced to do their job better. It’s just a slow process.”

To make matters worse for the lenders, and better for the homeowners (at least in Florida), the collapse of the Law Office of David Stern, which was handling approximately 100,000 Mortgage Foreclosure cases state-wide, is adding time for homeowners involved with this Foreclosure Mill.  Lenders are having trouble getting files and documents from Stern’s office, and finding new counsel.  Then to add insult to injury for the lenders, Stern recently wrote to the Chief Judge in Palm Beach county.  Stern told judges in a March 4 letter that he simply doesn’t have the manpower to file the correct paperwork to substitute in new counsel.

This places the Courts in a real bind.  If they were to simply follow the rules of Civil Procedure, after giving the banks notice, they would simply dismiss the foreclosure or grant judgement to the homeowner.  However, most judges seem inclined to bend over  backwards to give the banks break after break.

If the homeowner fails to file an Answer or a Responsive Pleading within twenty days of being served in Florida, they lose the case.  Yet when banks fail to comply with Orders of the Court to get new counsel, or file the correct paperwork, they seem to get extension after extension.  There’s clearly a double standard here, but it seems to be changing.

“Florida Rules of Civil Procedure require that attorneys file a proper Motion to Withdraw from any case which they no longer plan to represent,” said Eunice Sigler, a spokeswoman for the 11th Judicial Circuit Court in Miami-Dade County. “We are currently researching various options, including any remedies available through the Florida Bar.”

Quoting from the Palm Beach Post, “Palm Beach County Chief Judge Peter Blanc said this week he’s also trying to figure out how to proceed.

‘Stern has provided notice he will no longer be attorney of record, but the court is unable to recognize it,’ Blanc said. ‘I’m told we’re getting more stipulations of substitute counsel but not anywhere near the number we should have.’

Blanc said he’s never seen a move like Stern’s before – sending a letter to judges that says “treat the pending cases as you deem appropriate.”

“I hate to predict what’s going to happen next,” Blanc said.

The letters included a list of the cases in question. It took a few days for Blanc to get an accurate count of the nearly 9,000 in Palm Beach County.”

Here is a snapshot of the numbers:

1)      A Bank would loan a homeowner money.

2)      The homeowner would sign a  promissory note (note or IOU) promising to pay the money back and pledge or secure the note with real property (usually his home).

3)      The bank would take the original documents to the land registrar (County Recording Office) and they would make a copy of the Note and the Mortgage, and place it in the Official Records of the County, and note the Book and Page numbers of the documents.  This was done so is someone was to buy the home from the homeowner, they would know that there was a lien against the property which would have to be paid off before the buyer could get a “clear title” to the property.

4)      Now, suppose the bank for any reason wanted to transfer that Mortgage and Note to someone else?  What they would do is prepare an “Assignment of Mortgage” in essence transferring or assigning the mortgage to Bank #2, so that the Mortgage payments from the homeowner would now go to bank #2 instead of Bank #1.  They would record that Assignment of Mortgage with the County Recording Office so that the world would know that Bank #2 was the entity to deal with regarding that mortgage.

5)      Now these recordings of the Mortgages and Assignments cost money.  The county Recording Offices would usually charge anywhere from $10 to the hundreds of dollars for each recording, so it wasn’t a cheap process.  But it allowed everyone to know which parcels of land were free and clear, and which had Mortgages against them, and who owned that Mortgage.

But that all changed in the last ten years.

During that period hundreds of thousands of residential mortgages were bundled together (often in groups of about 5,000 mortgages and investors were offered the opportunity to buy shares (or a part) of each bundle.  This was called Securitization.

In essence, Wall Street figured out a way to turn a 30 year mortgage, with small monthly payments, into instant, large sums of cash.  Sometimes these were sold even before the homeowner’s signed the notes and Mortgages, and they were then sold many times over.

Now each “Bundle” of Mortgages had to be given a name like “XYZ Home Loan Trust 2007 OPT-1” The name of the bundle gives the investor certain information about the bundle.  The year usually tells us when the bundle was created.  The OPT-2 would mean that the mortgages were originally made by Option One Mortgage and the -2 would the second bundle that year.

Each bundle is strictly controlled by a Pooling and Servicing Agreement.  This is a crucial document for the bundle as it lays out the rules that the Trustee needs to live by to administer the bundle.  It must have a Cut0ff Date, which is the last date that Mortgages can be added to the bundle.  That’s the day that the Trustee has to identify all of the Mortgages that are contained in the bundle.  So how do they get there?

The bundle custodian, or the Trustee must certify that for each and every Mortgage in his bundle as of the cutoff date, he has a Note (and actual piece of paper, which is signed IOU, from the homeowner) which is endorsed in blank.  He also must have proof that the ownership of the Note has been transferred, which most often takes the form of an Assignment of Mortgage.  The Pooling and Servicing Agreements say that these Assignment of Mortgages don’t have to be in the name of the bundle custodian, but specifically state that:

“Assignments of the Mortgage Loans to the Trustee (or its nominee) will not be recorded in any jurisdiction, but will be delivered to the Trustee in recordable form, so that they can be recorded in the event recordation is necessary in connection with the servicing of a Mortgage Loan.”

Now that sort of destroys the way we kept track of these Mortgages for the last few hundreds of years, so to create some sense of normalcy, the Mortgage Companies created MERS.

MERS – Mortgage Electronic Registration Inc. – holds approximately 66 million American mortgages and is a Delaware corporation.  The way MersCorp works, is that its specified members have agreed to include the MERS corporate name on any mortgage that was executed in conjunction with any mortgage loan made by any member of MersCorp.  The members trust MERS to keep track of the Mortgages they place in MERS’ name.  Since the members make the entries into the MERS database themselves, then the process should work, right? 

What they do, instead of the original lender being named as the Mortgagee, MERS is named as the “nominee” for the lender who actually loaned the money to the borrower. In other words MERS just acts as a document custodian.

As we pointed out earlier, MERS was created solely to simplify the process of transferring mortgages by avoiding the need to re-record liens – and pay county recorder filing fees – each time a loan is assigned. Instead, the servicer records these loans only once, and MERS’ electronic system monitors transfers and facilitates the trading of notes. It has very conservatively estimated that as of February, 2010, over half of all new residential mortgage loans in the United States are registered with MERS and recorded in county recording offices in MERS’ name.

More to come on this subject….