Richard Croak – The courts have been moving along on the MERS problem with foreclosures. Several additional courts have come down with the concept that MERS doesn’t have the right to foreclose. Those taking from MERS may have a problem, because they never recorded the assignments of their mortgages. So, basically right now, whoever is out there and getting foreclosed needs to look very carefully at the documents getting handed to them. They need to determine whether or not the company that’s trying to foreclose is the company that has the right to do that.
The other issue with foreclosures – is that we are finding that the attorneys attempting to foreclose for the banks have not been with complying with the various statutes that exist in the state of New York for mortgages.
There was an individual that came in that had a major bank filing a foreclosure action as a trustee. They began this foreclosure about a year ago. Did everything right. The individual was given this summons of complaint. About a month after the papers were signed – the Mortgage Electronic Registration System sent to the bank, the assignment of the mortgage. The original company that has the mortgage, ceased to exist. It was re-assigned – and that company is no longer around. In the meantime, MERS was sitting there strictly as a nominee – and several courts now say the nominee has no right to assigning a mortgage, particularly when the original company is no longer in existence. The note is nowhere to be found. Recent cases have said – that the noteholder has the right to foreclose. Banks say they have the note, claiming to own the note because they are holding the note. All of this being complicated – and the average person needs to see an attorney.
The people in this particular case are still in their house – and are seeking loan modifications.
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