From the US - interesting reading

[Last of the Mohicans]

I was told about this by a mate whos a "realtor" (or whatever they call 'em) in the States. Have a read through, I'll post other links as I find them, or you can Google "show me the note" if you're feeling intrepid - but heres a taster:

 

A friend forwarded me this intriguing post from Ellen Brown’s Web of Debt blog. I mentioned in February how some homeowners were successfully contesting and renegotiating foreclosures by forcing borrowers to show the actual note documenting the indebtedness. This strategy is proving useful to many homeowners caught in the crossfire of the housing debacle, and should certainly be pursued if for no other reason than to ensure people are not foreclosed by multiple lenders:

WHO OWNS THE NOTE?

Your goal is to make certain the institution suing you is, in fact, the owner of the note (see steps to follow below). There is only one original note for your mortgage that has your signature on it. This is the document that proves you owe the debt.

During the lending boom, most mortgages were flipped and sold to another lender or servicer or sliced up and sold to investors as securitized packages on Wall Street. In the rush to turn these over as fast as possible to make the most money, many of the new lenders did not get the proper paperwork to show they own the note and mortgage. This is the key to the produce the note strategy. Now, many lenders are moving to foreclose on homeowners, resulting in part from problems they created, and don’t have the proper paperwork to prove they have a right to foreclose.

THE HARM

If you don’t challenge your lender, the court will simply allow the foreclosure to proceed. It’s important to hold lenders accountable for their carelessness. This is the biggest asset in your life. It’s just a piece of paper to them, and one they likely either lost or destroyed.

When you get a copy of the foreclosure suit, many lenders now automatically include a

count to re-establish the note

. It often reads like this: “…the Mortgage note has either been lost or destroyed and the Plaintiff is unable to state the manner in which this occurred.” In other words, they are admitting they don’t have the note that proves they have a right to foreclose.

If the lender is allowed to proceed without that proof, there is a possibility another institution, which may have bought your note along the way, will also try to collect the same debt from you again.

A Tennessee borrower recently had precisely that happen to her. Her lender, Ameriquest, foreclosed on her in July of 2007. About three months later, another bank sent her a default notice for the mortgage on the house she just lost. She called to find out what was going on. After being transferred from place to place and left on hold for lengthy periods of time, no one could explain what happened. They said they would get back to her, but never did. Now, she faces the risk of having her credit continually damaged for a debt she no longer owes.

 

Full article here

 

 

And another:

(Full article here)

With mortgage practices under fire on Capitol Hill and across the country, a federal court decision in Cleveland is now proving more important each day: Homeowners can’t be foreclosed unless mortgage owners actually go to court and prove they have the right to call the loan.

At first this may seem unimportant. After all, when a home is financed doesn’t a lender own the loan? And if a borrower doesn’t pay shouldn’t the lender have a right to foreclose?

It turns out that the first question is not so simple. A large proportion of the institutions that we see as “lenders” don’t actually own the loans they make. Instead, they create loans and then sell them to issuers. The issuers package the loans to create mortgage-backed securities (MBS) and those securities are then sold to investors worldwide. The investors, in turn, are represented by a trustee.

That means, according to a ruling by federal judge Christopher Boyko of the U.S. District Court in Ohio, that many foreclosures cannot proceed because the actual loan owners are not the lenders that originally issued the loans — even though the names of those original note holders continue to appear in official records.

Before someone can lose their home in a foreclosure a plaintiff must prove that it’s actually the loan owner. ... ......

(more)

In the past few years it would not be uncommon for a lender to put up capital to fund a loan. The loan would be marketed to borrowers by a mortgage banker or a mortgage broker who, essentially, was a salesman for the lender. To borrowers, the mortgage broker or the mortgage banker was their “lender,” however that was not usually the case. Instead, the loan was typically sold by the original lender to an “issuer” and borrowers would make payments to a “servicer.”

The actual owner of the loan at this point was not the original lender, not the mortgage broker, not the mortgage banker nor the servicer or the issuer. Why? When the loan was sold to the issuer, the issuer took that one mortgage, packaged it with other loans, and created a private-label mortgage-backed security (MBS). In effect, the issuer sold the loan to the holders of the mortgage-backed security.

But those who invest in the MBS do not actually own the loan either. They have, perhaps, an “equitable interest” in the sense that they are entitled to interest from the mortgage payments and a return of their capital when the loan is sold, paid off or foreclosed.

However, it could be that a single loan might wind up in several loan pools, each with a different level of investor risk — more risk would hopefully produce a higher level of return. Or, it could be that a loan is in one pool today and another pool tomorrow.

In such circumstances, as lawyers might ask, who is the real party in interest, the party who actually owns the loan?

“This court acknowledges the right of banks, holding valid mortgages, to receive timely payments,” said Boyko. “And, if they do not receive timely payments, banks have the right to properly file actions on the defaulted notes — seeking foreclosure on the property securing the notes. Yet, this court possesses the independent obligations to preserve the judicial integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of the secondary mortgage market, nor monetary or economic considerations of the parties, nor the convenience of the litigants supersede those obligations.”

In other words, a borrower can only be foreclosed when the actual owner of the loan goes to court. In the cases seen by Boyko, the paperwork said the loan owners were various banks, not the trustee for the owners of a mortgage-backed security.

(my italics)

 

Sadly, no legal precedent in the UK of course, but proof positive of the reality of what we're contending.

Edited March 16, 2009 by Last of the Mohicans

[Bookworm]

Even more interesting because of the US NWNF and tort culture, and of course class action. That is one hell of a bomb ticking...

 

All it will take is one of the more ambitious ambulance-chasers to start canvassing a place like Detroit, the capital of sub-prime repossessions and launch a class action (problem will be the pinpoint a defendant, but I'm sure that they could divide them in "smaller" lawsuits) and away they go: Between those being chased by companies who don't have the actual right to, those who have lost their homes by those same companies, and in a country where punitive damages are actively sought and routinely granted, ouch. If you thought the US economy was in trouble now....

[Last of the Mohicans]

Even more interesting because of the US NWNF and tort culture, and of course class action. That is one hell of a bomb ticking...

 

All it will take is one of the more ambitious ambulance-chasers to start canvassing a place like Detroit, the capital of sub-prime repossessions and launch a class action (problem will be the pinpoint a defendant, but I'm sure that they could divide them in "smaller" lawsuits) and away they go: Between those being chased by companies who don't have the actual right to, those who have lost their homes by those same companies, and in a country where punitive damages are actively sought and routinely granted, ouch. If you thought the US economy was in trouble now....

 

 

Aye, which is probably why the US Govt is actively helping people under threat of repo, as opposed to our own which is actively aiding and abetting the "lenders" to clobber us.

[bustthematrix]

Sadly, no legal precedent in the UK of course, but proof positive of the reality of what we're contending.

 

Excellent posts Mo. I've thanked you.

 

rgds

V