Comments on: If the Lender Can’t Find the Mortgage

By: Barga

Barga — Mon, 16 Nov 2009 18:55:02 +0000

I have been arguing this to people for ages. They must prove that you owe them money, in any situation, for any reason.

NEver give money to anybody unless they can prove that you owe it to them or you know it (like your local bank, who you took a loan from). Then, always get a receipt in writing.

By: Sage

Sage — Mon, 02 Nov 2009 04:08:58 +0000

Hi simon….welcome to Mountain Sage. Hopefully Wizcon can enlighten us on the answers to some of your questions. She’s the expert on mortgages and notes.

By: simon l

simon l — Mon, 02 Nov 2009 03:58:41 +0000

why is it, that when someone refinances or “pays off” their mortgage loan, that MERS is the while that files release of the mortgage? Even after MERS “assigned” the mortgage (as in the case of foreclosure), it is MERS that records a release of mortgage.

Funny how the Note is never released…what gives there? Isn’t the Note the negotiable instrument?

If the Note is lost, and MERS files a release of mortgage but not a release of Note, wouldn’t that mean that someone could come with the Note one day and say “you owe me money”? It would be unsecured debt without the mortgage, but debt all the same.

It is well know now that MERS does not have any interest in the Note or any right to payment on the Note, never owned the Note and never held the Note – so how could MERS supposedly “assign” the Note to anybody?

Also – MERS supposedly tracks mortgage transfers so the mortgage (or deed of trust, a different but similar instrument) does not have to be rerecorded every time it is transferred. Mortgage transfers and Note transfers are two different things – so who tracks the Note transfers? The mortgage follows the Note (in a non-MERS transaction), but the original mortgage is not the one recorded – it is scanned and returned to the lender in most cases -so the lender can transfer it. The Note is never recorded, because it is a bearer instrument, legal tender, like a check. The Note is sold and bought.

Doesn’t separating the mortgage and Note render the mortgage void?

And again, what about that – MERS not recording release of the Note – the Note is supposed to be returned to the borrower once it’s paid off, but never is – so who holds the “uncashed check”? And what will happen when the uncashed check is found and presented for payment?

The loan modifications ar B.S., they are made to reconfirm the Note (actually modifying a Note that is supposedly “lost”) it’s the second bite at the apple for the Banks – the original Note could still be out there!

Don’t believe it? Just ask to see your right to rescind notice before you modify – when you modify, you lose a few consumer rights, setting you up for a future foreclosure. MERS needs this, it’s the only way to keep the ball rolling. Wall Street needed more homes to securitize, but there weren’t any, so the foreclosures fuel a fresh batch for them. If you have MERS, you will never own the home, the land is worth too much as a derivative.

Even if you are not in default, they will purposely fail to send you a statement, or erroneously force-place insurance, or something to throw you off so you can’t catch up – they are covering up their deeds by modifying and negating consumer rights through modification!

Watch out! and if you are lucky enough to be able to pay off your home, make sure you ask for a “release of Note” – just watch what they do!

By: AliSilver

AliSilver — Tue, 27 Oct 2009 11:21:50 +0000

Ok ty WIZ !

By: Wizcon

Wizcon — Tue, 27 Oct 2009 02:56:47 +0000

It should be recorded at the register of deeds. The original should have been sent back to you. Sometimes the lender requires they have it at the time of purchase. You can get a certified copy of it I think but you really don’t need to since it is recorded. When you pay off your mortgage, you should get a satisfaction of mortgage sent to you by either the register of deeds or the lender. It should show that it to has been recorded. Make sure it IS recorded.

By: AliSilver

AliSilver — Mon, 26 Oct 2009 21:53:20 +0000

Hmmm, No one told me to look there. I just asked WF and they said they don’t have it. They said to call the TITLE co. who processed it.. I’m going to be paying it off in the next 4 months or so. At this point I’ll just wait until I do and if they can’t produce one then…… I have no plan b

By: Wizcon

Wizcon — Mon, 26 Oct 2009 19:27:42 +0000

@AliSilver, Go down to the register of deeds and see what there is for a mortgage. Wells fargo loans have kept me really busy the last month or so. Folks are refinancing existing mortgages with them like crazy. In my mind, hearing their stories they are essentially modifying their loans to better terms through the more detailed refinance process. Most say they are doing it for relief from the higher interest payments. Today I had one that was a widow who could not afford the existing payments after her hubby died.
Was the home your primary residence when you took out the loan? Did you marry since then? I don’t know what state you are in. Most states with homestead laws have an automatic homestead status if you are married and it is your primary residence. If a spouse should die, the title reverts to the survivor. If the deceased is the only one on the loan however, that person would have to refinance in their name. It is considered a debt towards the deceased’s estate.
Often only one spouse signs the note and takes responsibilty for the debt. In a homestead state, the spouse has to sign the mortgage, the right to cancel and Truth in Lending doc’s essentially giving the ok for the borrowing spouse permission to borrow against the house. The non borrowing spouse can cancel the loan within a 3 day recission period. So A loan can’t be had without all owners aproving it.
There should be an original deed recorded at the register of deeds. The mortgage deed is only exercised in the event of foreclosure

By: Sage

Sage — Mon, 26 Oct 2009 19:21:35 +0000

Is there a deed of trust filed with the register of Deeds?

By: AliSilver

AliSilver — Mon, 26 Oct 2009 18:51:58 +0000

I read an article about this same or similar thing last year and I loved it ! I want to say it was in Ohio,(dont quote me though) a class action suit brought by 10 or so homeowners who were being foreclosed on by a LENDER who did NOT have deed to their homes. The judge told the LENDER, this is your fault for buying a bundle of loans and not following through with the transfer of the paperwork. The homeowners got to keep their homes. I do not know and wish I did, what the status of their loans were at THAT point…
I was interested in it because my LENDER, Wells Fargo, does not have a DEED/TITLE to my h ome. I’ve tried several times to homesteaed it and cannot because of that. SO I ask WF why should I pay you? What do I get proving I’ve paid it off when I’m done? etc . WF bought my loan from NORWEST mortgage just a few years after we moved in. So I’m guessing it’s the similar thing. If I was a gambler, I’d quit paying and see what happens….. But given my luck with the lotto,,,, I bet I’d be homeless

By: Wizcon

Wizcon — Mon, 26 Oct 2009 16:51:52 +0000

@timesr, I think you are referring to the lein on your insurance policy I mentioned. That is so the lender gets paid back the mortgage if the house burns down or is damaged. They have an interest in the condition of the house or even if it is still there. Its an asset against the loan. They want to be assured they get their money back if it burns down for example. If your house burned and collected all the money, you would still owe the mortgage amount.
Also they have an interest in whether or not it is maintaining value. Realtors often get contacted by the asset management dept of lenders to do a “BPO” or Brokers Price Opinion. The realtor does a current market analysis on the value of the house and usually takes pictures of the house and sometimes the neighbors house. The Lender wants to know if the house still has at least the value of the money loaned against it and also if it is maintained well enough to resell for that value. They take pictures of the neighbors for the same reasons. It could be alarming if all the neighbors houses are run down, vacant or for sale and it would affect the value
So you may see someone taking a picture of your house or your neighbors. It may be because of that. Some folks get upset with that idea but the lender has every right to do so. At times it is a preliminary look at a house that may be going into foreclosure as well.
I take these pictures for realtors at times. I have also been challenged , usually by big hairy men. Once I explain it to them, they are ok with it. Only once was I told not to be seen taking the pictures and that was the case of a large lumber mill and the order stated that the US Marshal warned about being seen. Seems the owner ended up in jail for misappropiating funds and the place went into foreclosure. I just drove down the road clicking away then came back and did the same for the other side. At one point I stopped and pretended to be talking on my cell. That was for the pictures of the private hanger with the airplane in it.