Foreclosure Loophole: It’s A Paper Shuffle and You Can Beat It

by | Sep 19, 2010 | Headline News | 17 comments

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    If you’ve received a foreclosure notice from MERS, or even other so-called lenders who claim to own your mortgage note, we urge you to explore your options. With the millions of home loans out there and the [digital] paper shuffle that ensued when mortgage notes were moved from one financial entity to another, it’s very possible that if you’ve received a foreclosure notice, that the institution sending you the notice doesn’t actually own your original note.

    We had a well rounded, and at times heated, discussion about the Morality of walking away from a mortgage, but what if the bank that claims they own your house is flat-out lying to you?

    In addition to the issues with the MERS system, we direct concerned readers to The Market Ticker, where Karl Denninger has been engaged in his own investigation. While it’s still ongoing, if Mr. Denninger is correct in his assessment thus far, it’s possible that literally millions of mortgages lack a paper trail to the original owner of the mortgage note. It may be hard to believe that a company can foreclose on a home to which they have no title, but that is happening across the country.

    If you’re looking for a smoking gun that proves banks are fully aware of what is happening, look no further than the “addendum” that Wells Fargo is now attaching to foreclosure home sales. According to research at Naked Capitalism, the Wells Fargo addendum during foreclosed home sales is designed to cover the bank in the event that a home they sold through foreclosure proceedings was improperly (and illegally) sold because it lacked a free and clear title, and they have “no recorded title rights to foreclose in the first place“:

    Some readers may take this all to be unduly alarmist. But confirmation that this problem is real and potentially serious comes via a new “gotcha” practice by Wells Fargo on foreclosure sales. Wells is sufficiently concerned about the risks of selling properties out of foreclosure that it is springing an addendum on buyers, shortly before closing, which effectively shifts all risk for any title deficiency on to the buyer.

    Now why is this a big deal? Go reread the boldfaced sentence above. If a bank like Wells does not have the right to foreclose, it cannot have clean title to the property. So the bank could conceivably be selling something it does not own.

    Let’s say you buy a vase from a store. You open the box when you get home and find out the box is empty. You’d clearly be within your rights to get your money back.

    With the Wells Fargo addendum, even if the bank has sold you the equivalent of an empty box, you have no recourse to Wells. Zero. Zip. Nada.

    Source: Naked Capitalism

    Basically, this means that if you purchase a foreclosed property through Wells Fargo, and the original Title holder eventually shows up to re-claim his/her property, then you can technically lose the house, but you will not be able to make a claim against Wells Fargo to get your money back.

    There’s really only one word to describe it: SCAM.

    So, before you give up and let the bank take your home, consider getting an attorney. There may not actually be a traceable mortgage note holder, which means, if nothing else, you can probably remain in your home for even longer without making your monthly payments. Or, perhaps you may actually win ownership of your home, free and clear.


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      1. Sure, you may be able to tie the banks up with legal intricacies that challenge rightful ownership of your loan, but let’s see you sell or borrow against your home…ever again.

      2. Comments…..  Sometimes, karma works both ways. I have been reading of this title problem for a while in the real estate business. Over the last few years, mortgages have been sold many times, and just because someone says they own the note, if they don’t have the title, they don’t own the title.  many property title got lost in the shuffle. if I was losing my house to forclosure, I would scrape up enough money for an attorney, and make the note holders produce a valid title. 
              as far as worrying about selling or borrowing against the value of your house, no bank is going to be loaning money now, or in the forseeable future anyway, so that issue is a moot point. 
                There will be an absolute nightmare of legal challenges to ownership coming up in the home real estate market.  But if I was losing my home, I’d make sure the bank doing the forclosure was ‘totin-the-note”.    

      3. Glad this ‘news’ is getting out about MERS.  Thousands of the foreclosures that have happened are because the mortgage holders don’t know the facts.  A judge in Michigan perhaps 15 months ago stopped Deutchesbank from repossessing a large number of homes because they couldn’t produce the actual mortgages.  Same thing happened about 6 months ago in Kansas.  For some reason the big media of this country never pick up on the story.  Wonder why. 

        Here is another method of beating the fradulant banking system.

        Under certain circumstances, if the “lender” sold your loan off to someone else before your three day recission period, which of the greedy bastatrds did, , and you can prove they did it…check your notes….you have instantlt have an extended “fraud protection period of three years”. You have the right to rescind the loan, requesting all money be paid back……and as most banks don’t know anything but easy kills on their prey, will not refund the money. Then……you quit claim your property to a holding comany, pay rent to it, it’s equivalent to a forced short sale based on the “lenders” fradulant behavior, they will never get clear title. This combined with the MERS database note issues, makes it a Mexican stand-off, you keep your home…and feel good about a) paying for it as you are an honest person, and b) hey banker…eat shit…HA HA HA……..

      5. Haven’t had a mortgage since early 80’s ( built house ourselves, and only borrowed a small amount ), but if I was loosing my place to foreclosure, you can bet I’d pursue every avenue to make them prove the one foreclosing ACTUALLY had the legal right to do so.  Dang if I’d loose my place to some bank that was merely the “servicing agent” and the actual NOTE was long since lost.

        Another interesting point:  Say you DO pay off your mortgage…they are supposed to file with the county recorder that you have paid off your mortgage, and send you the canceled note.

        IF they don’t actually OWN the note, does the release from the deed of trust securing it actually have any standing ?  What happens down the road if the ACTUAL note holder shows up and says “Uh….dude….you STILL owe US….we don’t care what you paid that other bunch”

        This MERS stuff sure is a can of worms.

      6. Now what if you were in fine financial shape and you were up on your mortgage payments.  Could you ask your lender to produce the title anyway, just to see if they had it?  And if they didn’t just stop paying your mortgage and walk away with your house free and clear.

      7. GREASMAN, Borrowing against your home will never be a moot point, someday you may want to, but it is guaranteed that someday you will wish to sell it, then your little trick of “show me the note” will haunt you.

      8. @ AarontheBaron:

        I’m not a lawyer and do not construe this as legal advice but I believe if you did that you could make your payments to an escrow account at you local courthouse.

      9. Comments…..  First, I’m not an expert on anything real estate.  Just a regular guy.   Based on what I see happening all over the USA, and more so in some areas of the country, I think things in the real estate market are going to be in a mass upheavel for a long time.
              I believe as things get worse, even if someone owns their house, as I do, that it will be near impossible to get a home loan. I have talked to several people who are struggling to make payments, and want to re finance under whatever program thay can.  banks just won’t do it right now.  I think most banks are just waiting to see what shakes out in Washington, before they cut loose with any more mortgage money.
             As these months go by, things will be in even more turmoil. I believe the system will have to “re-set” itself before things ever get back to some kind of order.  we just are even close yet.  So the confusion will continue I believe. no clear policy on anything real estate related.

      10. Comments…..A friend of mine hasn’t paid their morgage in over a year. There is no N.O.D as of yet.What should they do and what about the property taxes that are due?Will the city of San Diego take the property for unpaid taxes?

        • winning your house free and clear is not enough for you?!@#$&%*&*%&*%&*()()

          city will sell your house only after 5 years of unpaid property taxes. u still have 4 more years.

      11. Here’s one for you all.  I’m in the Minneapolis area and have not paid a penny on my home since Feb 2009.  I have had 3 sheriff sales scheduled and none actually carried out.  Each time one was scheduled, I called the courthouse and searched the online database and found that not one time did they actually go through with the sale!  I have another caveat, I don’t know what this means as of yet, but I happen to have possession of the abstract of title and was given it at closing… Any thoughts are welcome??

      12. I quit paying mortgage 10/09,  tried modification never heard from them I had 5  offers on short sell  Bank of America refused them all,  At one point they wanted me to sign a$60,000.00 dollar promissory note and give then $11,000.00 and they would take the offer. It was suppose to be auctioned June, July, August, Realtor was working with B of A  on a offer when   I get a notice from a Lawyer in August saying Freddie Mac bought my house, if I vacate  1-30 days they will pay me $ 2500.00 ,31-60 days  $1500.00 or if eligible I can rent it, still waiting for Freddie. That is when I realize Government is now in the real estate and  rental business, they now own all housing market.
        I live in Idaho , there is now a rental boom, rent has gone way up because of the foreclosures.

      13. Come and take it!

      14. I got hurt and was unable to pay the mortgage, they have been sending me foreclosure dates since 3/08. I keep asking them to produce the notes and they keep sending me a copies of the mortgage we signed in 07 with Mortgage Lenders Network, since then it has been sold to La Salle Bank who has since then been bought by Bank of America. When I went back to work they said we didn’t qualify for modification, so here we wait each and every month, they haven’t foreclosed yet and still haven’t produced the note. Funny thing we could have made a deal, they choose not to and they can’t get us out. I’m staying put until they produce the note.

        • How do you do that..

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