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Understanding the Assignment of Mortgages: What You Need To Know

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A mortgage is a legally binding agreement between a home buyer and a lender that dictates a borrower's ability to pay off a loan. Every mortgage has an interest rate, a term length, and specific fees attached to it.

Written by Attorney Todd Carney .  Updated November 26, 2021

If you’re like most people who want to purchase a home, you’ll start by going to a bank or other lender to get a mortgage loan. Though you can choose your lender, after the mortgage loan is processed, your mortgage may be transferred to a different mortgage servicer . A transfer is also called an assignment of the mortgage. 

No matter what it’s called, this change of hands may also change who you’re supposed to make your house payments to and how the foreclosure process works if you default on your loan. That’s why if you’re a homeowner, it’s important to know how this process works. This article will provide an in-depth look at what an assignment of a mortgage entails and what impact it can have on homeownership.

Assignment of Mortgage – The Basics

When your original lender transfers your mortgage account and their interests in it to a new lender, that’s called an assignment of mortgage. To do this, your lender must use an assignment of mortgage document. This document ensures the loan is legally transferred to the new owner. It’s common for mortgage lenders to sell the mortgages to other lenders. Most lenders assign the mortgages they originate to other lenders or mortgage buyers.

Home Loan Documents

When you get a loan for a home or real estate, there will usually be two mortgage documents. The first is a mortgage or, less commonly, a deed of trust . The other is a promissory note. The mortgage or deed of trust will state that the mortgaged property provides the security interest for the loan. This basically means that your home is serving as collateral for the loan. It also gives the loan servicer the right to foreclose if you don’t make your monthly payments. The promissory note provides proof of the debt and your promise to pay it.

When a lender assigns your mortgage, your interests as the mortgagor are given to another mortgagee or servicer. Mortgages and deeds of trust are usually recorded in the county recorder’s office. This office also keeps a record of any transfers. When a mortgage is transferred so is the promissory note. The note will be endorsed or signed over to the loan’s new owner. In some situations, a note will be endorsed in blank, which turns it into a bearer instrument. This means whoever holds the note is the presumed owner.

Using MERS To Track Transfers

Banks have collectively established the Mortgage Electronic Registration System , Inc. (MERS), which keeps track of who owns which loans. With MERS, lenders are no longer required to do a separate assignment every time a loan is transferred. That’s because MERS keeps track of the transfers. It’s crucial for MERS to maintain a record of assignments and endorsements because these land records can tell who actually owns the debt and has a legal right to start the foreclosure process.

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Assignment of Mortgage Requirements and Effects

The assignment of mortgage needs to include the following:

The original information regarding the mortgage. Alternatively, it can include the county recorder office’s identification numbers. 

The borrower’s name.

The mortgage loan’s original amount.

The date of the mortgage and when it was recorded.

Usually, there will also need to be a legal description of the real property the mortgage secures, but this is determined by state law and differs by state.

Notice Requirements

The original lender doesn’t need to provide notice to or get permission from the homeowner prior to assigning the mortgage. But the new lender (sometimes called the assignee) has to send the homeowner some form of notice of the loan assignment. The document will typically provide a disclaimer about who the new lender is, the lender’s contact information, and information about how to make your mortgage payment. You should make sure you have this information so you can avoid foreclosure.

Mortgage Terms

When an assignment occurs your loan is transferred, but the initial terms of your mortgage will stay the same. This means you’ll have the same interest rate, overall loan amount, monthly payment, and payment due date. If there are changes or adjustments to the escrow account, the new lender must do them under the terms of the original escrow agreement. The new lender can make some changes if you request them and the lender approves. For example, you may request your new lender to provide more payment methods.

Taxes and Insurance

If you have an escrow account and your mortgage is transferred, you may be worried about making sure your property taxes and homeowners insurance get paid. Though you can always verify the information, the original loan servicer is responsible for giving your local tax authority the new loan servicer’s address for tax billing purposes. The original lender is required to do this after the assignment is recorded. The servicer will also reach out to your property insurance company for this reason.  

If you’ve received notice that your mortgage loan has been assigned, it’s a good idea to reach out to your loan servicer and verify this information. Verifying that all your mortgage information is correct, that you know who to contact if you have questions about your mortgage, and that you know how to make payments to the new servicer will help you avoid being scammed or making payments incorrectly.

Let's Summarize…

In a mortgage assignment, your original lender or servicer transfers your mortgage account to another loan servicer. When this occurs, the original mortgagee or lender’s interests go to the next lender. Even if your mortgage gets transferred or assigned, your mortgage’s terms should remain the same. Your interest rate, loan amount, monthly payment, and payment schedule shouldn’t change. 

Your original lender isn’t required to notify you or get your permission prior to assigning your mortgage. But you should receive correspondence from the new lender after the assignment. It’s important to verify any change in assignment with your original loan servicer before you make your next mortgage payment, so you don’t fall victim to a scam.

Attorney Todd Carney

Attorney Todd Carney is a writer and graduate of Harvard Law School. While in law school, Todd worked in a clinic that helped pro-bono clients file for bankruptcy. Todd also studied several aspects of how the law impacts consumers. Todd has written over 40 articles for sites such... read more about Attorney Todd Carney

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Mortgage Assignment Laws and Definition

(This may not be the same place you live)

What is a Mortgage Assignment?

A mortgage is a legal agreement. Under this agreement, a bank or other lending institution provides a loan to an individual seeking to finance a home purchase. The lender is referred to as a creditor. The person who finances the home owes money to the bank, and is referred to as the debtor.

To make money, the bank charges interest on the loan. To ensure the debtor pays the loan, the bank takes a security interest in what the loan is financing — the home itself. If the buyer fails to pay the loan, the bank can take the property through a foreclosure proceeding.

There are two main documents involved in a mortgage agreement. The document setting the financial terms and conditions of repayment is known as the mortgage note. The bank is the owner of the note. The note is secured by the mortgage. This means if the debtor does not make payment on the note, the bank may foreclose on the home. 

The document describing the mortgaged property is called the mortgage agreement. In the mortgage agreement, the debtor agrees to make payments under the note, and agrees that if payment is not made, the bank may institute foreclosure proceedings and take the home as collateral .

An assignment of a mortgage refers to an assignment of the note and assignment of the mortgage agreement. Both the note and the mortgage can be assigned. To assign the note and mortgage is to transfer ownership of the note and mortgage. Once the note is assigned, the person to whom it is assigned, the assignee, can collect payment under the note. 

Assignment of the mortgage agreement occurs when the mortgagee (the bank or lender) transfers its rights under the agreement to another party. That party is referred to as the assignee, and receives the right to enforce the agreement’s terms against the assignor, or debtor (also called the “mortgagor”). 

What are the Requirements for Executing a Mortgage Assignment?

For a mortgage to be validly assigned, the assignment document (the document formally assigning ownership from one person to another) must contain:

• The current assignor name.
• The name of the assignee.
• The current borrower or borrowers’ names. 
• A description of the mortgage, including date of execution of the mortgage agreement, the amount of the loan that remains, and a reference to where the mortgage was initially recorded. A mortgage is recorded in the office of a county clerk, in an index, typically bearing a volume or page number. The reference to where the mortgage was recorded should include the date of recording, volume, page number, and county of recording.
• A description of the property. The description must be a legal description that unambiguously and completely describes the boundaries of the property.

There are several types of assignments of mortgage. These include a corrective assignment of mortgage, a corporate assignment of mortgage, and a mers assignment of mortgage. A corrective assignment corrects or amends a defect or mistake in the original assignment. A corporate assignment is an assignment of the mortgage from one corporation to another. 

A mers assignment involves the Mortgage Electronic Registration System (MERS). Mortgages often designate MERS as a nominee (agent for) the lender. When the lender assigns a mortgage to MERS, MERS does not actually receive ownership of the note or mortgage agreement. Instead, MERS tracks the mortgage as the mortgage is assigned from bank to bank. 

What are Some of the Benefits and Drawbacks of Mortgage Assignments?

An advantage of a mortgage assignment is that the assignment permits buyers interested in purchasing a home, to do so without having to obtain a loan from a financial institution. The buyer, through an assignment from the current homeowner, assumes the rights and responsibilities under the mortgage. 

A disadvantage of a mortgage assignment is the consequences of failing to record it. Under most state laws, an entity seeking to institute foreclosure proceedings must record the assignment before it can do so. If a mortgage is not recorded, the judge will dismiss the foreclosure proceeding. 

Are there any Defenses to Mortgage Assignments?

Failure to observe mortgage assignment procedure can be used as a defense by a homeowner in a foreclosure proceeding. Before a bank can institute a foreclosure proceeding, the bank must record the assignment of the note. The bank must also be in actual possession of the note. 

If the bank fails to “produce the note,” that is, cannot demonstrate that the note was assigned to it, the bank cannot demonstrate it owns the note. Therefore, it lacks legal standing to commence a foreclosure proceeding.

Do I Need to Hire an Attorney for Help with a Mortgage Assignment?

If you need help with preparing an assignment of mortgage, you should contact a mortgage lawyer . An experienced mortgage lawyer near you can assist you with preparing and recording the document.

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Obtaining MI Approval for a Conventional Mortgage Loan

The servicer must process a transfer of ownership in accordance with Chapter D1-4, Transfers of Ownership .

When a transfer of ownership occurs for a mortgage loan, obtaining the mortgage insurer’s approval is either

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not required unless the borrower requests a release of liability.

The servicer must review the MI policy for the specific provision regarding transfers of ownership, assumptions and releases of liability.

Responding to a Title Transferred via Grant Deed

The servicer must evaluate all transfers of ownership as required in Chapter D1-4, Transfers of Ownership. When the servicer becomes aware of a property transfer through Grant Deed, it must complete the actions shown in the following table.

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Updated January 04, 2023

A mortgage assignment agreement is between a holder of debt (assignor) and a party that assumes the debt (assignee). Under most mortgages, the borrower has no rights to object. Since a mortgage is centered upon a specific borrower’s credit profile, it is difficult to replace with a new borrower.

Where to Record

Any change made to a mortgage should be recorded in the Registry of Deeds (see table below) where the property is located. This will make the change official for public and private purposes.

• Assignment of Mortgage

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What is an Assignment of Mortgage?

In real estate, an assignment of mortgage is the transfer of a mortgage, or mortgage note , to another party which typically happens on the servicing side or lender side. This is commonly seen one when lender sells or transfers your mortgage to another lender. Lenders typically have the right to to sell mortgages and assign them to new parties, but don’t typically allow borrowers to do the same. When a borrower transfers their mortgage obligation to a new party, this is called an assumed mortgage.

Assignment of Mortgage Examples

Examples where you will find assignment of mortgages include:

• Example 1. A lender selling your mortgage to another lender for servicing.

Here’s Property Shark’s definition of assignment of mortgage .

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What Is an Assignment of Mortgage?

• Post author: Dean Adams
• Post published: December 3, 2020
• Post category: Real Estate Investor

A mortgage is a loan secured by a real estate investor to procure or buy a property. It is a debt instrument that the borrower is obliged to meet with agreed terms of payment. The collateral of a specific real estate property secures a mortgage.

In this article, we will be talking about the assignment of the mortgage. What does this term mean? How does it work? Is the assignment of mortgage important? These are some questions that will be answered as we proceed with this article.

Defining Assignment of Mortgage

Assignment of mortgage is defined as a document that transfers a mortgage from the original lender to another lender. Assignment of mortgage can happen more than once, even without the knowledge of the borrower. This may be done over again until the mortgage balance is paid.

However, the lender is required to send the borrower a notice to inform him of the sale and a copy of what the terms of mortgage payments are. Terms and conditions of the transaction may vary, depending on the agreement of the mortgagee, and the Assignments of mortgage are frequently seen when the lender sells a mortgage to another lender.

A reason for the execution of the mortgage assignment is when the mortgage becomes delinquent, and the mortgagee feels that the mortgagor has no interest in doing something about it.

How the Assignment of Mortgage Works?

As defined, the mortgage assignment happens when the original mortgagee (the assignor) transfers the mortgage to a buyer (the assignee), who will turn out to be the new lender of the real property owner. In other words, he sells the mortgage to another lender without letting the borrower know of his intent to sell.

However, upon completing the mortgage assignment with a third party, the mortgagee must let the borrower know about the transactions. He must send the necessary documents to the borrower indicating important details such as the name of the new lender, contact information, and their agreement regarding predetermined payments and other terms of the transaction.

Assignors can benefit from the assignment of a mortgage. Property taxes , occupancy fees, and closing costs may be too costly for the lender.

Benefits of Assignment of Mortgage

The mortgagor may be experiencing financial difficulties himself or is moving out; hence, the selling of the mortgaged property happens. Mortgage assignments can free the lender of these costs. For the assignee or the third party buyer, assigning mortgages would mean acquiring a real estate property at a discounted price.

The agreement can help the assignee save thousands of dollars, to his benefit, of course. Another advantage of the transfer of a mortgage to the third party buyer is aside from acquiring a new unit at a discounted price, and the maintenance fees may be lower, too.

Getting a land transfer tax benefit may also be among the advantages of the assignment of a mortgage to an assignor.

Borrower’s Benefit

The borrowers cannot contest the sale or assignment of mortgage. However, if the borrower wants to stop or do something about the mortgage assignments, he can apply for a new mortgage and pays off the old one.

The transfer of mortgages may benefit the borrower, in a way. In cases where the borrower is under financial stress, his mortgage payments may be affected. If this happens, the possibility of foreclosure is high. Assignment of mortgage can prevent foreclosure because it will be like getting a new loan.

In other words, the amount of the balance of the delinquent mortgage of the original loan will be paid off by the transfer of the mortgage.

How Assigning Mortgages to Third Parties Work?

In simple terms, the mortgage assignment transfers a mortgage from the first mortgagee to a third-party mortgagor. In other words, the mortgagee sells the mortgage to another lender. This process may be done several times until the borrower pays off the loan.

A mortgage assignment must be recorded in the county record. This is made so the assignment of the rights under the mortgage of the original bank may be assigned. If and when the owner of the home does not meet the mortgage, then the foreclosure process may be initiated.

However, if the assignment of mortgage was not properly executed, the foreclosure can be challenged by the real estate property owner.

Challenging Foreclosure

How will the borrowers know if the assignments of mortgages are valid or not? Borrowers must understand the necessary documents, basic terms, and the persons involved in mortgage transfers.

When making a loan, closing a deal with a lender would require the real property owner to sign documents. Such documents include a deed of trust (mortgage) and a promissory note. A deed of trust is an assurance that the loan is secured, the evidence of which is represented by the promissory note.

Assignments of mortgage is a common transaction with banks. Since the assignment of the mortgage refers to the transferring of a mortgage from a lender to another lender, the transaction must be supported by a document known as the “Assignment.”

This document should include important information like the names of the current owner and the new owner, the name of the debtor, the amount of the initial mortgage, records of the first mortgage containing pertinent information, and the legal description of the real estate property. The homeowner should be provided with the documents or a note to inform him of the assignment of the mortgage.

Seeking Legal Advice

Once the owner of the home has even the slightest hint of doubt regarding the transaction, seeking legal advice is recommended. Find the right lawyer, a lawyer whose expertise is on this subject. An attorney can help you determine the legality of the transaction.

Take note; once the mortgage assignment is not executed correctly, then the lawyer can help you pursue a case to challenge the foreclosure of your property. An attorney who is familiar with this subject knows the ins and outs of the process.

Therefore, hiring one to help you out with the case is essential. Make sure you make a note of important details and have a copy of every document. Among these documents are the deed of trust (assures the security of the loan), a copy of the mortgage assignment, a notice from the creditor that the mortgage has been transferred, and other necessary documents.

It is crucial to find the right lawyer to help out, not only if you are facing a foreclosure issue, but to guide you with the process. Finding an attorney who has enough knowledge about real estate processes can help you make sure that the assigned mortgage was executed correctly and that the transaction records are kept.

An owner of the home may not have enough information about mortgage assignments. Therefore, it is vital to find an attorney who can ensure the security of your property and the mortgage.

It cannot be denied that loans are part of our lives, especially during difficult times. It is also innate in humans to dream of acquiring a home or a real estate property. To realize this dream, people acquire properties through mortgage loans. Things can run smoothly at first.

However, a time comes when a financial crisis happens. In this case, loan payments, especially mortgages, might be affected. Is this the end of your happy life? Will your property be foreclosed? If you will not do something about it, foreclosure is possible.

However, there are several options to saving your property from foreclosure, especially if the lender demands that you settle your account. In this case, the mortgage is assigned to another lender. This process is called an assignment of mortgage, where your debt is transferred to another lender by the first lender. This is like restructuring your loan.

The only thing is, it happens with another lender. Assignment of mortgage is one way to pay off the mortgage on the first lender while extending the term of your mortgage, therefore, preventing foreclosure. As a lender, be responsible for executing the assignment of mortgage properly. It should appear on the county record and has to follow legal procedures.

This will not only free the borrower of his obligations to you but will also secure the transaction and the interest of the parties involved. As a borrower, take note of all the necessary information. Read related articles to make you more knowledgeable on the subject.

Once the a ssignment of mortgage is made, a borrower will be dealing with another creditor and not the one with whom the initial mortgage was acquired. To avoid encountering problems with a mortgage, make sure you settle your dues. If such situations occur, communicate with the creditor and discuss ways to resolve the issue.

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Mortgage Assignment Definition

September 1, 2023

By Dyana Branchen

When the mortgage lender assigns their mortgage and its interest to a new lender, it’s called mortgage assignment . The lender uses an assignment-of-mortgage document to transfer the mortgage legally.

It is important for real estate students and agents to understand how mortgage assignment takes place. As a real estate professional, I will help you define mortgage assignments for your real estate exam.

In this post, I’ll break down the mortgage assignment definition and explain it with the help of examples. Let’s get started!

What Is Mortgage Assignment?

A mortgage assignment is when a mortgage lender transfers a mortgage account and its interests to another lender. Assignment of mortgage is a document that indicates the transfer of mortgage between the lenders. This type of assignment is mostly seen when a mortgage lender sells the mortgage to a new lender.

Mortgage lenders have the right to assign and sell their mortgages to other parties, while borrowers are not. If a borrower transfers their mortgage to another person, it is called an assumed mortgage.

Mortgage lenders aren’t required to inform the borrower when they transfer their mortgages. However, the new lender has to notify the borrower about the mortgage assignment and set the payment schedule with the borrower. If the borrower doesn’t want to work with the lender, they can apply for a new mortgage and pay off the old mortgage.

How Does Assignment of Mortgage Take Place?

Mortgage lenders often assign their mortgages to other lenders to free up money. When a mortgage assignment occurs, the new lender steps in place of the original lender and takes their mortgage obligations. The assignment of mortgage document has the following contents:

• The legal description of the property in discussion (the collateral)
• Name of the original lender
• Name of the third-party (new lender)
• Name of the borrower
• The jurisdiction where it was recorded
• The amount of money loaned originally
• The date on which the assignment of mortgage becomes valid

After preparing the assignment of mortgage document, the mortgage lender files it in a government office that deals with property taxes, ownership records, and other real estate matters. After the mortgage has been filed and transferred to the new lender, the borrower is notified. The borrower can confirm the sale of the mortgage and inquire about the new lender. They can also negotiate mortgage rates and terms.

Once the original lender has assigned the mortgage to a new lender, they will not receive mortgage payments. The borrower will pay the monthly mortgage payments to the new lender after the assignment of mortgage. However, the original lender will free up capital by assigning the mortgage to a new lender. This will help the original mortgage lender to offer more mortgages and generate more income.

After the borrower has paid the mortgage in full to the new lender, the lender must file a satisfaction of mortgage . After the satisfaction of mortgage has been recorded, the borrower’s property will be free of the lien.

Effects of Mortgage Assignments

When a lender transfers a mortgage, the original terms of the mortgage remain the same. The interest rate, monthly payments, and total payments to pay off the mortgage remain unchanged. The term and rates after mortgage assignment are the same as at closing.

However, some things might change. For instance, the borrower must check the payment method and know where the payments should go. This is important to know as the borrower should make the payments to the right holder of the mortgage.

Another thing that might change after mortgage assignment is the process that the lender will follow if the borrower defaults. Mortgage lenders use different notification methods, which the borrower must be familiar with to avoid confusion. The following are the effects of the assignment of mortgage:

Notice to Borrower

The original lender doesn’t send notice to the borrower for assigning the mortgage. They don’t need the permission of the borrower to transfer the mortgage either. However, the new mortgage holder has to notify the borrower about the mortgage assignment.

Modification

No modification occurs after mortgage assignment. The original features of the mortgage remain the same after the assignment of the mortgage. The mortgage balance, interest rate, and monthly payments will not change.

The changes to an escrow account are also down according to the original escrow agreement. However, if there is a modification, such as an additional payment method, it would be at the request of the borrower and the mortgage lender’s discretion.

Effects on Escrow Payments

Mortgage lenders receive the bills for the property from the municipality. However, when the lender transfers the mortgage to another lender and files it at the local recorder’s office, a copy is sent to the municipality too. After the assignment of mortgage, the taxing municipality sends the tax bills to the new lender’s address.

Mortgage Assignment Example

Alice wants to purchase a property. After making a down payment, she has to pay $175,000 to the seller to purchase the property. Bank-A offers $175,000 to Alice, and she purchases the house. The following is the breakdown of the mortgage:

• Mortgage balance : $175,000
• Mortgage term : 15 years
• Rate : 4.5%
• Monthly payments : $1,519

Alice has to pay $1,519 to Bank-A every month, which includes the interest and principal. After five years, Bank-A decides to sell the mortgage to Bank B. At this time, Alice has a remaining balance of $119,657.98, which she has to pay to Bank-A.

Bank-A files for the assignment of mortgage documents at the local county office, and Bank-B takes the mortgage from here. Bank-B notifies Alice she has to make the monthly payments of $1,519 to Bank-B now. However, the remaining mortgage term is 10 years, as she has already paid off for the previous 5 years.

Frequently Asked Questions

Mortgage assignment is the process of mortgage transfer from one lender to another lender. The original lender does this transfer to a new lender. Usually, a mortgage assignment is done for selling the mortgage to a third party.

Who Files the Assignment of Mortgage?

The original lender files the assignment of mortgage at the local county’s office. The new lender notifies the borrower about the assignment of mortgage.

What Happens After Mortgage Assignment?

After the mortgage assignment, the new lender takes the role of the original lender. The borrower has to make mortgage payments to the new lender after the mortgage assignment. The rates and terms on the mortgage with the new lender remain the same as they were with the previous lender.

Why Do Lenders Sell Mortgages?

Lenders mostly sell mortgages for two reasons. First, they want to free up capital to provide more mortgages to other borrowers. Second, they want to generate income by selling the mortgage to another lender. The original lender charges a fee from the new lender, and this way, cash is generated.

What Is Assignment Fraud?

Assignment fraud is when a fake company sends a notice to the borrower and acts like a new lender. This happens when the original lender hasn’t assigned the mortgage to any other lender. In this case, there is a chance that the borrower sends payments to the fake company, mistaking it as a mortgage assignment. Thus, it is important for the borrower to confirm with the original lender before making any mortgage payment to anyone else.

What to Know for the Real Estate Exam

A mortgage assignment is when the original lender transfers the mortgage to a new lender. This type of assignment is common between lenders who sell mortgages to each other. Lenders sell mortgages to free up capital and buy more mortgages to offer them to other borrowers. Mortgage assignment doesn’t change anything for the borrower, except that the borrower has to make mortgage payments to the new lender.

Do you now understand how mortgage assignment works? If you are unclear about something, let me know in the comments. Once you’re done, go through these Real Estate Terms  to learn more definitions.

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What Is an Assignment of Mortgage?

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An assignment of mortgage is a document which indicates that a mortgage has been transferred from the original lender or borrower to a third party. Assignments of mortgage are more commonly seen when lenders sell mortgages to other lenders. When someone has what is known as an assumable mortgage, it is possible for the borrower to transfer the mortgage to another person, in which case an assignment of mortgage will need to be filed to record the transaction.

This document indicates that the loan obligation has been transferred. It usually describes the property so that there is no confusion about which piece of real estate is under discussion. It should include the name of the original party, along with the name of the third party, with contact information and the date that the assignment of mortgage becomes valid. In the case of an assignment of mortgage between lenders, the document notes the identity of the borrower, while assumed mortgages identify the lender and indicate that the transfer took place between borrowers.

Lenders routinely sell mortgages, and in fact a mortgage may be transferred multiple times before it has been paid off. Lenders are not required to notify borrowers when they sell mortgages, and borrowers do not have an opportunity to contest the sale. The new lender is required to send out a notification indicating that a sale took place and providing information about how to make mortgage payments to the new lender. The borrower may attempt to negotiate a change in terms, or if the borrower does not want to work with the new lender, it may be possible to apply for a new mortgage to pay off the old one.

With an assumable mortgage, the issue is a bit trickier. Lenders do not want borrowers to assign their mortgages to people who cannot keep up with the payments, as then they will be faced with having to foreclose and sell the property, and this adds to the expense of servicing the loan. As a result, people who wish to assume a mortgage must demonstrate that they are financially capable of taking on the loan, and that they fully understand the terms of the loan.

An assignment of mortgage will be filed in the same government office which handles ownership records, property taxes, and related matters. People should be aware that sometimes an assignment of mortgage is not recorded for several months, especially if there is a backlog of documenting material which needs to be gone through.

If borrowers receive a notice in the mail indicating that their mortgage has been transferred, they should call their lenders to confirm the sale and ask who the mortgage was sold to. It is also advisable to check the records office to confirm that an assignment of mortgage has been followed. Borrowers should be aware that some scammers prey on people by claiming that their mortgages have been transferred when this is not actually the case.

Following via: law.justia.com

CHAPTER 701

ASSIGNMENT AND CANCELLATION OF MORTGAGES

701.01  Assignment.

701.02  Assignment not effectual against creditors unless recorded and indicated in title of document; applicability.

701.03  Cancellation.

701.04  Cancellation of mortgages, liens, and judgments.

701.041  Title insurer; mortgage release certificate.

701.06  Certain cancellations and satisfactions of mortgages validated.

701.01  Assignment. –Any mortgagee may assign and transfer any mortgage made to her or him, and the person to whom any mortgage may be assigned or transferred may also assign and transfer it, and that person or her or his assigns or subsequent assignees may lawfully have, take and pursue the same means and remedies which the mortgagee may lawfully have, take or pursue for the foreclosure of a mortgage and for the recovery of the money secured thereby.

History. –s. 1, Dec. 11, 1834; RS 1985; GS 2498; RGS 3840; CGL 5743; s. 782, ch. 97-102.

701.02  Assignment not effectual against creditors unless recorded and indicated in title of document; applicability. —

(1)  An assignment of a mortgage upon real property or of any interest therein, is not good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the assignment is contained in a document that, in its title, indicates an assignment of mortgage and is recorded according to law.

(2)  This section also applies to assignments of mortgages resulting from transfers of all or any part or parts of the debt, note or notes secured by mortgage, and none of same is effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration without notice, unless a duly executed assignment be recorded according to law.

(3)  Any assignment of a mortgage, duly executed and recorded according to law, purporting to assign the principal of the mortgage debt or the unpaid balance of such principal, shall, as against subsequent purchasers and creditors for value and without notice, be held and deemed to assign any and all accrued and unpaid interest secured by such mortgage, unless such interest is specifically and affirmatively reserved in such an assignment by the assignor, and a reservation of such interest or any part thereof may not be implied.

(4)  Notwithstanding subsections (1), (2), and (3) governing the assignment of mortgages, chapters 670-680 of the Uniform Commercial Code of this state govern the attachment and perfection of a security interest in a mortgage upon real property and in a promissory note or other right to payment or performance secured by that mortgage. The assignment of such a mortgage need not be recorded under this section for purposes of attachment or perfection of a security interest in the mortgage under the Uniform Commercial Code.

(5)  Notwithstanding subsection (4), a creditor or subsequent purchaser of real property or any interest therein, for valuable consideration and without notice, is entitled to rely on a full or partial release, discharge, consent, joinder, subordination, satisfaction, or assignment of a mortgage upon such property made by the mortgagee of record, without regard to the filing of any Uniform Commercial Code financing statement that purports to perfect a security interest in the mortgage or in a promissory note or other right to payment or performance secured by the mortgage, and the filing of any such financing statement does not constitute notice for the purposes of this section. For the purposes of this subsection, the term “mortgagee of record” means the person named as the mortgagee in the recorded mortgage or, if an assignment of the mortgage has been recorded in accordance with this section, the term “mortgagee of record” means the assignee named in the recorded assignment.

History. –s. 1, ch. 6909, 1915; RGS 3841; CGL 5744; s. 13, ch. 20954, 1941; s. 2, ch. 89-41; s. 20, ch. 2005-241.

701.03  Cancellation. –Whenever the amount of money due on any mortgage shall be fully paid, the mortgagee or assignee shall within 60 days thereafter cancel the same in the manner provided by law.

History. –RS 1986; GS 2499; RGS 3842; CGL 5745; s. 171, ch. 73-333.

701.04  Cancellation of mortgages, liens, and judgments. —

(1)  Within 14 days after receipt of the written request of a mortgagor, the holder of a mortgage shall deliver to the mortgagor at a place designated in the written request an estoppel letter setting forth the unpaid principal balance, interest due, and the per diem rate. Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the book provided by law for such purposes in the proper county. Within 60 days of the date of receipt of the full payment of the mortgage, lien, or judgment, the person required to acknowledge satisfaction of the mortgage, lien, or judgment shall send or cause to be sent the recorded satisfaction to the person who has made the full payment. In the case of a civil action arising out of the provisions of this section, the prevailing party shall be entitled to attorney’s fees and costs.

(2)  Whenever a writ of execution has been issued, docketed, and indexed with a sheriff and the judgment upon which it was issued has been fully paid, it shall be the responsibility of the party receiving payment to request, in writing, addressed to the sheriff, return of the writ of execution as fully satisfied.

History. –s. 1, ch. 4138, 1893; s. 1, ch. 4918, 1901; GS 2500; RGS 3843; CGL 5746; s. 1, ch. 80-17; s. 15, ch. 93-250; s. 12, ch. 94-170.

701.041  Title insurer; mortgage release certificate. —

(1)  DEFINITIONS.–For purposes of this section:

(a)  “Mortgage” means a mortgage or mortgage lien on an interest in real property in this state, including any modifications thereof, given to secure a loan in the principal amount of $500,000 or less, other than a mortgage securing an open-end or revolving credit agreement.

(b)  “Mortgagee” means:

1.  The grantee of a mortgage; or

2.  If a mortgage has been assigned of record, the last person to whom the mortgage has been assigned of record.

(c)  “Mortgage servicer” means the last person to whom a mortgagor or the mortgagor’s successor in interest has been instructed by a mortgagee to send payments on a loan secured by a mortgage. A person transmitting a payoff statement is the mortgage servicer for the mortgage described in the payment statement.

(d)  “Mortgagor” means the grantor of a mortgage.

(e)  “Payoff statement” means a statement of the amount of:

1.  The unpaid balance of a loan secured by a mortgage, including principal, interest, and any other charges properly due under or secured by the mortgage.

2.  Interest on a per-day basis for the unpaid balance.

(f)  “Record” means to record with the clerk of the circuit court or the comptroller in the county or counties in which the real property securing the mortgage is located.

(g)  “Title insurer” means a corporation or other business entity authorized and licensed to transact the business of insuring titles to interests in real property in this state under chapter 624.

(2)  CERTIFICATE OF RELEASE.–An officer or duly appointed agent of a title insurer may, on behalf of a mortgagor or a person who acquired from the mortgagor title to all or a part of the property described in a mortgage, execute a certificate of release that complies with the requirements of this section and record the certificate of release in the real property records of each county in which the mortgage is recorded if a satisfaction or release of the mortgage has not been executed and recorded after the date payment in full of the loan secured by the mortgage was made in accordance with a payoff statement furnished by the mortgagee or the mortgage servicer.

(3)  CONTENTS.–A certificate of release executed under this section must contain:

(a)  The name of the mortgagor, the name of the original mortgagee, and, if applicable, the mortgage servicer; the date of the mortgage; the date of recording; and the volume and page or document number in the real property records in which the mortgage is recorded, together with similar information for the last recorded assignment of the mortgage.

(b)  A statement that the mortgage, including any modifications thereof, was in the principal amount of $500,000 or less.

(c)  The name of the title insurer filing the certificate of release, a statement that the person executing the certificate of release is an officer or a duly appointed agent of the title insurer, a statement that the title insurer is authorized and licensed to transact the business of insuring titles to interests in real property in this state under chapter 624 or chapter 626, and, if executed by a duly appointed agent, shall further provide the recording information of the appointment of such agent as required by subsection (4).

(d)  A statement that the certificate of release is made on behalf of the mortgagor or a person who acquired title from the mortgagor to all or a part of the property described in the mortgage.

(e)  A statement that the mortgagee or mortgage servicer provided a payoff statement which was used to make payment in full of the unpaid balance of the loan secured by the mortgage.

(f)  A statement that payment in full of the unpaid balance of the loan secured by the mortgage was made in accordance with the payoff statement and that a copy of the certificate of release was sent to the mortgagee or mortgage servicer that provided the payoff statement.

(4)  EXECUTION.–

(a)  A certificate of release authorized by subsection (2) must be duly executed, sworn to or affirmed under penalty of perjury before a notary public, and recorded and may be executed by an officer of a title insurer or by a duly appointed agent of a title insurer. Such delegation to an agent by a title insurer shall not relieve the title insurer of any liability for damages caused by the agent for the execution or recordation of a certificate of release.

(b)  The appointment of an agent must be duly executed, acknowledged, and recorded by an officer of a title insurer and must state:

1.  The title insurer as the principal.

2.  The identity of the person, partnership, or corporation authorized to act as agent to execute and record certificates of release provided for in this section on behalf of the title insurer.

3.  That the agent has the full authority to execute and record certificates of release provided for in this section on behalf of the title insurer.

(c)  A separate appointment of agent shall not be necessary for each certificate of release provided that at least one such appointment is recorded in the county in which the mortgaged property is located. The appointment of agent must be rerecorded where necessary to establish authority of the agent, but such authority shall continue until a revocation of appointment is recorded in the office of the county recorder in which the appointment of agent was recorded.

(d)  After recordation of a title insurer’s revocation of appointment in the office of the county recorder in which the appointment was recorded, the agent whose appointment is revoked in such county shall have no further authority to execute or record certificates of release as provided in this section on behalf of that title insurer with respect to any mortgages recorded in that county, and no such certificate of release thereafter executed or recorded by that agent on behalf of that title insurer shall be effective to release any mortgage recorded in that county.

(5)  EFFECT.–For purposes of releasing the mortgage, a certificate of release containing the information and statements provided for in subsection (3) and executed as provided in subsection (4) is entitled to be recorded with the county recorder and operates as a release of the mortgage described in the certificate of release. The county recorder shall rely upon the certificate to release the mortgage. Recording of a certificate of release by a title insurer or its agent shall not relieve the mortgagor, or the mortgagor’s successors or assigns, from any personal liability on the loan or other obligations secured by the mortgage. A certificate of release recorded pursuant to this section fulfills any other obligation of the mortgagee or mortgage servicer to file a satisfaction or release of the mortgage.

(6)  LIABILITY OF TITLE INSURER.–

(a)  In addition to any other remedy provided by law, a title insurer recording a certificate of release under this section shall be liable to the holder of the obligation secured by the mortgage for actual damage sustained due to the recording of the certificate of release. Reasonable costs and attorneys’ fees shall be awarded to the prevailing party.

(b)  The title insurer named in a certificate of release filed by a duly appointed agent shall be liable pursuant to this subsection without regard to whether the title insurer authorized the specific certificate of release recorded by the agent.

(c)  The title insurer shall have no liability under this subsection if the title insurer shows that payment in full of the unpaid balance of the loan secured by the mortgage was made in accordance with the payoff statement furnished by the mortgagee or the mortgage servicer.

(d)  Liability of a title insurer pursuant to this section shall be considered to be a title insurance claim on real property in this state pursuant to s. 627.7865.

(7)  RECORDING.–If a mortgage is recorded in more than one county and a certificate of release is recorded in one of such counties, a certified copy of the certificate of release may be recorded in another of such counties with the same effect as the original. In all cases, the certificate of release shall be entered and indexed as satisfactions of mortgage are entered and indexed.

(8)  APPLICATION.–This section applies only to a mortgage, including any modifications of such mortgage, in the principal amount of $500,000 or less.

(9)  PREMIUM.–The Financial Services Commission shall adopt rules establishing an actuarially sound premium charge to be made for each certificate of release recorded pursuant to this section.

History. –s. 1, ch. 2005-122.

701.06  Certain cancellations and satisfactions of mortgages validated. –All cancellations or satisfactions of mortgages made prior to the enactment of chapter 4138, Acts of 1893, by the mortgagee or assignee of record of such mortgage entering same on the margin of the record of such mortgage in the presence of the custodian of such record and attested by the said custodian and signed by said mortgagee or assignee of record of such mortgage, shall be valid and effectual for every purpose as if the same had been done subsequent to the enactment of chapter 4138, Acts of 1893.

History. –s. 1, ch. 14763, 1931; CGL 1936 Supp. 5746(1).

FORECLOSURE MILL EMPLOYEE SIGNATURES (FORGERIES) ON ASSIGNMENT OF MORTGAGES.

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California Supreme Court Issues Decision Allowing Borrowers to Challenge Foreclosure by Claiming Void Assignment

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Earlier this month, the California Supreme Court issued an important decision giving borrowers additional grounds to fight lenders and banks attempting to foreclose. The case is entitled Yavanova v. New Century Mortgage Corporation (Supreme Court Case #218973). In Yavanova the borrower claimed that the foreclosure of the property was wrongful because the foreclosure documents were not in order. Specifically, the borrower claimed that the assignment of the deed of trust was void. However, to appreciate that argument, one must generally understand how a mortgage works under California law.

In California, real estate mortgages are comprised of a deed of trust and a promissory note. The promissory note is the document wherein the borrower promises to repay the loan. The deed of trust is the security instrument that creates a lien interest in the property. In other words, the deed of trust allows the lender to foreclosure if the borrower defaults on the payments he or she promised in the promissory note. (This basically gives the bank, lender or creditor the right to repossession upon default—similar to the way a lender can repossess your car if you fail to make payments). The deed of trust also specifies other agreements between the lender and the borrower including the duties of the borrower and lender with respect to each other and details regarding the foreclosure process should it be necessary.

Often times, the original lender will not remain as the party to whom the borrower must pay back. The original lender has the right to transfer or sell the mortgage loan to a new party. If that situation arises, the borrower is still obligated to repay the mortgage loan. However, the borrower will repay the person or party to whom the mortgage loan was assigned or transferred. However, to properly assign a mortgage loan, certain steps must be followed. If those steps are not followed, then the person or party to whom the loan was assigned may not be able to enforce the mortgage loan.  Generally, the transfer of a mortgage loan is properly accomplished by the execution of a document entitled an “Assignment of Deed of Trust” coupled with an endorsement of the note.

In Yavanova , the borrower claimed that the foreclosure was wrongful because the assignment of deed of trust was void. The Borrower sought to have the foreclosure declared invalid and to have title restored back in the borrower’s name. However, the lower court held that the borrower, as an unrelated third party to the assignment, did not have standing to challenge the validity of the assignment and dismissed the lawsuit. This decision was ultimately presented to the California Supreme Court on Appeal.

On February 18, 2016, the California Supreme Court issued a 31 page opinion overturning the lower court ruling. In doing so, the California Supreme Court created new law holding that a “home loan borrower has standing to claim a non-judicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legitimate authority to order a trustee’s sale.”   In simple terms, the opinion means that a borrower may claim that an assignment of a mortgage loan is void and, if proven, the foreclosure is not only wrongful but also invalid.  

Contact the Piccuta Law Group today if you or a loved one is facing foreclosure. Principal attorney, Charles Tony Piccuta, spent six years representing banks and mortgage companies in foreclosure lawsuits before changing sides to represent plaintiffs and borrowers. He has unique experience in defending against foreclosures and bringing mortgage related and wrongful foreclosure lawsuits. He understands how these cases are defended by the other side. He will give you every chance in saving your home and protecting your most important assets. Contact the Piccuta Law Group today for a free consultation.

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MILLIONS OF MORTGAGES MAYBE LEGALLY VOID DUE TO WRONGFUL ASSIGNMENTS !  DO YOU HAVE ONE OF THEM?

70-million-mortgages-are-legally-void

BANKS AND WALL STREET TRUSTS HELD ACCOUNTABLE FOR WRONGFUL ASSIGNMENT OF DEEDS OF TRUST!

WRONGFUL ASSIGNMENTS have caused a majority of the mortgage transactions to be legally problematic for lenders attempting to foreclosure on homeowners.

General Overview: Upwards of 70 million mortgage-loan-contracts are legally faulty. It has now been determined that many of the entities attempting to foreclose on homes do not hold legal title to do so.

If you suspect that you may have been wrongfully foreclosed upon, or are currently facing foreclosure, we recommend that you read and research the Glaski v. Bank of America case and the CA Supreme Court Case Yvanova.

In 2006 the California Supreme Court ruled in Yvanova v. New Century Mortgage Corporation (Case No. S218973, Cal. Sup. Ct. February 18, 2016) homeowners have standing to challenge a note assignment in an action for wrongful foreclosure on the grounds that the assignment is void.

What does Glaski v. Bank of America mean to you?

The Glaski decision presents the idea that if some entity wants to collect a debt or foreclose on your property, they must first own the debt. Furthermore, if that entity is claiming ownership by way of an Assignment, it must prove that Assignment is valid.

“This is one of the most significant cases in Calif. Real Estate Law in the last fifty years,” explained Stephen J. Foondos, managing partner of United Law Center. “Unlike the myriad weak modification programs that gave little or nothing to a relatively small number of homeowners, the Glaski decision offers real financial relief to all who were (wrongfully) foreclosed upon.”

In the Glaski case, Mr. Glaski was foreclosed on and evicted. He sued for wrongful foreclosure claiming the entity that foreclosed was not the proper party because they did not own his promissory note. Glaski alleged that days after he signed his mortgage with his bank, the bank assigned his note to a securitized “Wall Street” trust and that the Assignment document was not filed timely as required under the state laws in which it was created.

Since the Assignment of Mr. Glaski’s note to the securitized trust was invalid, the trust did not own his note and therefore could not foreclosure, and hence the foreclosure was wrongful. The Court of Appeals agreed. (Notably, if the trust never owned the note then it never had the right to collect any of his mortgage payments—which means Glaski [and any other Plaintiffs] can sue for reimbursement of those payments too)!

Although the banks tired to appeal the Glaski decision, it did not work. Recently the California Supreme Court upheld the Glaski decision. This Supreme Court Decision could help bring down the house or cards (and deceit) that the banks have created and have been fighting hard to maintain.

All homeowners who lost their properties to foreclosure, or are currently in the foreclosure process, are encouraged to review their original loan paperwork for signs of a fraudulent foreclosure. “There are tell-tale signs on your original loan paperwork that can indicate an improper handling of your Deed of Trust.

What bank did you originally sign with? Major Banks securitized nearly 90% of all their loans; nearly all failed to properly assign them. These include, but are not limited, to:

• Countrywide Home Loans
• JPMorgan Chase
• Bank of America
• Wells Fargo
• Washington Mutual

What was the date of your Assignment of Deed of Trust? Look to see if an Assignment of Deed of Trust was filed. If so, your lender does not likely own your note. If the recording date of the Assignment is near the time of foreclosure, then that entity had no legal right to foreclose. And if that’s the case you need to file suit against them because they are attempting to foreclose on your home ILLEGALLY!

Here is one major sign of fraud to look for: Seeing the term MERS (The Mortgage Electronic Registration System) on your loan documents: Deed of Trust, Notice of Default, and Notice of Trustee Sale.

What is MERS? MERS is the Mortgage Electronic Registration Systems it was created by banks in order to “streamline” the warehousing of loans and mortgage documents. Basically MERS is a front organization that was created to defraud homeowners and government agencies. It pretends to hold your note, but in fact MERS actually holds nothing!

Banks set up MERS in the late 1990s to help speed the process of packaging loans into mortgage-backed bonds by easing the process of transferring mortgages from one party to another. But ever since the housing crash, MERS has been besieged by litigation from state attorneys general, local government officials and homeowners who have challenged the company’s authority to pursue foreclosure actions. Recently there have been many court decisions delivering death blows to MERS and you may be able to take advantage of this FACT.

For example the Washington State Supreme Court dealt a death blow to MERS: “The highest court in the state of Washington recently ruled that a company that has foreclosed on millions of mortgages nationwide can be sued for fraud, a decision that could cause a new round of trouble for the nation’s banks.

The ruling is one of the first to allow consumers to seek damages from Mortgage Electronic Registration Systems, a company set up by the nation’s major banks, if they can prove they were harmed. Legal experts said this decision from the Washington Supreme Court could become a precedent for courts in other states. The case also endorsed the view of other state courts that MERS does not have the legal authority to foreclose on a home.

“This is a body blow,” said consumer law attorney Ira Rheingold. “Ultimately the MERS business model cannot work and should not work and needs to be changed.” A spokeswoman for MERS said the company is its role in the financial system will withstand legal challenges. The Washington Supreme Court held that MERS’ business practices had the “capacity to deceive” a substantial portion of the public because MERS claimed it was the beneficiary of the mortgage when it was not!

This finding means that in actions where a bank used MERS to foreclose, the consumer can sue it for fraud. If the foreclosure can be challenged, MERS’ involvement would make repossession more complicated. On top of that, virtually any foreclosed homeowner in the state in the past 15 years who feels they have been harmed in some way could file a consumer fraud suit.

Currently there is an estimated 70,000,000 mortgages that MERS claims to hold. This represents about 60% of the residential real estate in the United States of America. So chances are your mortgage and loan has been compromised. You can learn more about MERS, and search the MERS database to see if your mortgage loan is a MERS loan by clicking here .

Here are 65 more signs of fraud you can look for. If you see any of these signs we recommend that you contact us right away because you may have legal standing to sue your lender, or current loan servicer, for mortgage and/or foreclosure fraud.

If you are missing copies of your mortgage loan documents you may be able to can get free online copies by clicking here .

Now is the perfect time to sue the banks over mortgage and foreclosure fraud because the legal tide is beginning to turn, and homeowners are starting to win. You can read the Yale Law Journal Review paper entitled “ In Defense of Free Houses ” for proof.

Kimberly L. Thomas (Baltimore MD) sued Wells Fargo in Montgomery County Circuit Court for wrongful foreclosure and her six-member federal jury convicted Wells Fargo of fraud, negligence and other charges for inflating Thomas’ income and assets on her mortgage application, and locking her into a bigger loan than she had applied for — one she couldn’t afford. She was awarded $250,000 in special damages, plus another one million dollars in punitive damages! You can read her case by clicking here .

David and Crystal Holm also sued Wells Fargo for wrongful foreclosure and quiet title and were awarded $2,959,123.00 in financial damages and clear and free title to their home. You can read about their case by clicking here .

Remember the banks business model is to foreclose on homeowners . Securitization is the reason that banks want to foreclose on homeowners.  When a bank assigns the risk of a loan to investors (certificate holders) of a Real Estate Investment Conduit Trust (SPV), the “bank” is no longer a traditional bank that gets the benefit of mortgage payments.

Mortgage banks give as few modifications as possible and comply minimally with statutes put in place to protect borrowers, all while employing tricks to “cash in” on homeowners’ defaults, pushing them to foreclosure.

Banks benefit from foreclosures more than loan modifications because of something called “creaming the debt.”  If the Banks modify the loan, their penalties and fees might not get paid to them.  When they foreclose, they get their penalties first, before the investors– which is the “creaming.” The mortgage banks make more money from foreclosure than actually servicing the homeowner’s payment.

When foreclosure becomes a possibility, like when a borrower misses a payment or asks for a modification, the banks seize the opportunity for increased profit by foreclosure. Foreclosure is clearly the fattest pot of gold possible and it’s for this reason foreclosure is the bank’s primary goal.

The banks take the risk of litigation because few people sue, but getting legal information as soon as possible can make the difference between homeowners asserting their rights, or losing their homes while being bulldozed by the bank.

Bank Trick #1:  Refusing Payments

The bank refuses the check a homeowner sends in.

The bank may offer a reason (for example, there’s a mistake on the account) or it might offer no explanation at all.  The bank may even offer the homeowner a loan modification.  The bank does this to delay the homeowner from immediately contacting an attorney to pursue a breach of contract claim.

Alternately, the bank may take trial payments in an effort to further delay the homeowner until the arrears (also known as the forbearance)  becomes so great that the homeowner is ineligible for a loan modification or unable to repay the debt. Eventually, the servicer combines this trick with other tricks, such as changing servicers, to draw the homeowner further into default.

Bank Trick #2:  Switching Services during Modification

A homeowner gets a loan modification with one servicer and makes trial payments.  The servicer advises the homeowner that it is switching servicing rights to another servicer.

The new servicer claims to know nothing about the modification and delays the homeowner for months waiting to get the relevant “paperwork.”  No matter how many times the homeowner sends proof of the modification, the new servicer refuses to honor it.  It is a violation of California law to not honor a modification from a prior servicer but servicers know that most people will not pursue litigation.

Bank Trick #3:  Breaching a Modification Contract

The homeowner gets a loan modification that includes a balloon payment of, for example, $50,000 after 20 years.  After paying on this loan modification for a year and a half, the homeowner gets a new modification in the mail from the same servicer with a balloon payment of $150,000.  No matter how many times the borrower calls the servicer, or tries to forward the existing modification, the agent will respond with a fixed script that does not acknowledge the prior modification but only talks about the new one.

The confused borrower will feel like he or she is talking to a robot (on a recorded line, being monitored by a supervisor).  Eventually, if the borrower does not sign and execute the new modification, the bank will begin to refuse their payments on the old modification.

The servicer will also create a paper trail that tells a different story than what is actually happening.  If the bank is trying to stick a borrower with a new modification, the paper trail will show the borrower is refusing the modification and mention nothing about the old one. Eventually, the servicer will stop accepting payments unless the homeowner acquiesces to the new modification.

Bank Trick #4:  Extra Fees & Escrow Accounts

The homeowner receives a bill for extra fees out of nowhere so that the mortgage payment becomes something the homeowner suddenly can’t afford.  The servicer refuses to accept any “partial payment.”  After that, the bank continues adding on fees each month, increasing the amount the borrower has to pay to reinstate. They may offer the homeowner a loan modification as a distraction to trick the homeowner into a longer default.  Because the borrower thinks they are getting a modification, they will spend the money they would have put towards their mortgage and be unprepared to pay their arrears if the modification falls through, as it most likely will. The servicer does all this while telling the borrower they are there to help.

The servicer may pay homeowner taxes early and then accuse the homeowner of not paying them.  The servicer may point to a clause in the mortgage that says if the homeowner doesn’t pay the taxes, they can raise the interest rate. They may begin charging the homeowner for forced place insurance at a high rate even though the homeowner already has insurance. This is something the homeowner only finds out after-the-fact when trying to pay property taxes.

Bank Trick #5:  False Notices

In a non-judicial foreclosure state, such as California, foreclosure is done by recorded notice.  The Notice of Default states the amount of arrears that a homeowner must pay back to reinstate the loan.

Servicers uniformly overstate this amount by up to $20,000, which serves two purposes: (1) It scares borrowers with an inflated amount of arrears that they believe they can’t cure; and (2) It creates a paper trail for the bank so they can claim more money from investors.

Bank Trick #6:  Multiple Modifications and Dual Tracking

The bank must respond to the loan modification application with a denial or approval within a definite period.  A denial must be in writing and must inform the borrower of the right to appeal.  The bank cannot “ dual track ” a borrower by posting Notices of Foreclosure and Trustee’s Sale while reviewing the borrower for a modification.

There are big penalties for “ dual tracking ” by the bank, but only if it is the borrower’s first time applying.  This is why a servicer will often deny a modification over the phone or encourage a borrower to apply again.  Once a borrower becomes a serial modifier, the bank can dual track the borrower all it wants without statutory penalties. And, it will.

You don’t have to let the banks get away with these tricks and scams! According to a government audit 83% of the mortgages contain legal violations, legal errors, contract breaches, appraisal fraud, mortgage fraud, and other legal issues that can be legally problematic for banks attempting to foreclose.

However, thanks to groundbreaking cases like the Glaski v. Bank of America case and the Jesinoski v. Countrywide Home Loans , case there is hope for homeowners who want to fight to save their homes from mortgage and foreclosure fraud.

The Glaski decision (California State Court) presents the idea that if some entity wants to collect a debt or foreclosure on your property, they must first legally own the debt. Furthermore, if that entity is claiming ownership by way of an Assignment, it must prove that Assignment is legally valid.

The Jesinoski decision (Federal Supreme Court) deals with a homeowner’s right to rescind (or cancel) the loan agreement, and stated that the loan is rescinded the moment the rescission letter is mailed! Furthermore if the lender wants to challenge the rescission it only has 20 days to do it!

The Supreme Court stated in Carpenter v. Longan that “the mortgage follows the note” and that the note and mortgage are inseparable because the assignment of the note carries the mortgage with it, while the assignment of the mortgage alone is a legal void!

Our research shows that the majority of Assignments are void; because  most pooling and servicing agreements are trust that are governed by New York law.  New York law says that if you are not punctilious in following the trust documents for a transfer, the transfer is void. It doesn’t matter if you intended it or not, it’s void.

That transfer is void even if the transfer would have otherwise been compliant with law. And if the transfer is void, that would mean that the trust do not own the mortgages; and therefore lacks standing to foreclose.

It’s axiomatic that in order to bring forth legal action, the plaintiff must have legal standing. Only the mortgagee has such standing. Thus various problems like false or faulty affidavits, as well as back dated mortgage assignments, and altered or wholly counterfeited notes, mortgages, and assignments all relates to the evidentiary need to prove standing.

I cannot decide for you the moral obligations you should pursue; but if a wrong has been committed against you (such as a clouded title or a fraud resulting from a mortgage loan) you have the duty as an American property owner to correct it. Filing a lawsuit (in my book) reflects one’s personal responsibility. Furthermore if you read your mortgage or deed of trust you agreed to defend the title to your property against any false or faulty liens or encumbrances.

If you have a broken chain of title, or cloud on title, it is your legal right and duty to file a quiet title lawsuit in order to obtain clear and equitable title to your home!

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