In an earlier article this week we outlined how homeowners can verify the validity of their mortgage notes, as well as to receive documented confirmation that the mortgage service company to which you send your monthly payments is legally servicing the note with permission from the note holder. For more information: Here’s What You Can Do: Demand Your Mortgage Note.
We received several comments, most being supportive of contractual law and contractual obligations, though some opinions suggested that taking such action against banks, lenders and mortgage service companies was immoral based on the argument that as a homeowner, you engaged in a contractual obligation, and be reneging on said obligation you are essentially knowingly and willfully defrauding the note holder by choosing not to pay your note.
Our intention, of course, was not to promote voluntary default on mortgage loan payments. It was to give homeowners the opportunity to verify and validate the actual contract which exists between themselves and the note holder.
Just as a bank has the ability to enforce a contract, so to does a homeowner. But, with the current mess related to mortgage transfers, the validity of the contracts themselves is now in question, and for all you know as a homeowner, you may be paying the wrong company your monthly payments – a company that may not even own the home or be legally servicing your monthly payments. There has been at least one confirmed case of a homeowner who was in delinquency being foreclosed on by two different banks. This tells us that there is something seriously wrong with the entire process, and not even the banks know who owns what.
In a recent article titled Second Leg Down of America’s Death, Gonzalo Lira makes clear what the issue is and why it’s a good idea to obtain proof of ownership from the note holder:
If the chain of title of the note is broken, then the borrower no longer owes any money on the loan.
This is extremely important to understand, and Lira outlines exactly how this process is supposed to work and the problems that have occured as a result of banks dicing and slicing mortgages into securities and trading vehicles for investors. Essentially, as mortgage notes were “transferred” from one bank to another the chain of title was broken, which means that whoever was supposed to make their monthly payments on that title no longer had to do it, because the title was not transferred legally.
So, when we said you might get “free house, or, at the very least, a deferment on your monthly mortgage payments (interest free) until everything is worked out” in our previous article, we meant it. The banks have completely dropped the ball, and have actually hired companies whose sole purpose is to fraudulently re-create all of this paperwork.
Using some colorful language (*explicit), Lira explains why this is a problem, and what the end result may be:
The reason the banks are fucked again is, if they’ve been foreclosing on people they didn’t have the legal right to foreclose on, then those people have the right to get their houses back. And the people who bought those foreclosed houses from the bank might not actually own the houses they paid for.
And it won’t matter if a particular case—or even most cases—were on the up-and-up: It won’t matter if most of the foreclosures and evictions were truly because the homeowner failed to pay his mortgage. The fraud committed by the foreclosure mills casts enough doubt that now, all foreclosures come into question. Not only that, all mortgages come into question.
People still haven’t figured out what this all means—but I’ll tell you: If enough mortgage-paying homeowners realize that they may be able to get out of their mortgage loan and keep their house, scott-free? Shit, that’s basically a license to halt payments right the fuck now. That’s basically a license to tell the banks to fuck off.
What are the banks gonna do—try to foreclose and then evict you? Show me the paper, motherfucker, will be all you need to say.
This is a major, major crisis. This makes Lehman’s bankruptcy look like a spring rain, compared to this hurricane. And if this isn’t handled right—and handled right quick, in the next couple of weeks on the outside—this crisis could also spell the end of the mortgage business altogether. Of banking altogether. Hell, of civil society. What do you think happens in a country when the citizens realize they don’t need to pay their debts?
We’re talking about trillions of dollars in debt here – and because the banks screwed up, those debts may literally go from being worth $1 trillion on the books of banks like Bank of America, to $0.
Consider what something like that, times all of the major banks and mortgage lenders in the country, might do to our economy. It would not be pretty.
Of course, if such a thing were to occur we would not be at all surprised to see the largest financial bailout in the history of the world. Our guess would be that the U.S. government would give the banks another round of trillion dollar bailouts and in the process they would acquire “ownership” of these notes at which point, they could simply re-write contract law like they did with the GM bondholders and force homeowners to start paying. That or they’d restrict their ability to acquire loans for any new home purchases and who knows what else. Congress, as we all know, can get very creative with commerce laws, other peoples’ money and definitions of property rights.
A lot of things can go wrong here, and already have. None of them will result in anything good.
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Twice you state, “If the chain of title of the note is broken, then the borrower no longer owes any money on the loan.” Â This is WRONG. Â A break in the chain of title on the note or mortgage -they are different- effects who can enforce the note and mortgage NOT the existence of the debt. Â Â If the note and mortgage were valid to begin with, they are still valid. Â What we are seeing today is that the parties who are trying to ENFORCE the notes and mortgages do not have the right to do so because the assignments TO THEM were not valid (breaks in the chain of title).
If the bank that originated the mortgage didn’t legally transfer it to whoever thinks they bought it, then it would be a bigger problem between the two of them…..unless in the process, the note the homeowner signed got tossed in the shredder……
THEN the bank does have a BIG problem…..because the investors that bought it don’t own it, but neither does the bank any more….the chain HAS been broken…..and legally, neither the investors nor the bank has the rights to collect any more…..they basically tossed out the homeowners IOU.
The homeowner can quit paying, but there will always be a cloud on the title….the unknown of “what IF the note shows back up ? “….and I kinda doubt title insurance companies are going to willingly insure the NEXT potential buyer of the property…..so, yeah, the homeowner may have a home without paying, but may also be stuck with it, unless the next buyer is just willing to chance it.
all this is anti wall street banker propaganda. everything is ok. our bankers funded the development of the greatest country in the world. they will just need a litttle time to straighten out the chinese spys and gangsters that caused this monetary problem.
god bless goldman-sachs, j p morgan, citicorp, chase,  larry blankfein alan greenspan netanyahoo and bob rubin. they are all doing their best to fix everything…
People, don’t be stupid by thinking “Yay!, I don’t have to make payments anymore!!”
Pay for your home, someday you will own it and be able to sell it, you’ll regret it if you don’t.
My partner in a developement company is a Real Estate lawyer and I asked him about this chain of title issue. What he said is that the note could be endorsed in blank.
If the MBS was a bonefide purchaser for value they should be able to enforce the note. If the note holder has unclean hands, they have a problem. However, a paper trail will be created and documented.
I’m sure the banks are now in the process of creating that paper trail.Â
creating that paper trail out of thin air.
seriously – if one can LEGALLY get out of their house note AND keep the house, they would be a FOOL not to do it. “LEGALLY” being the key word there.
/what is legal is not always moral, and vice versa.
//the banks only care about legal – so treat them that way.
In almost all of these cases it is a matter of a missing piece of paper or an incomplete piece of paper. Technically the chain of title was broken. The WORST that could happen would be that the court would leave the title with the last owner who had clear title which could be your original lender or someone who bought the loan afterwards. It would NOT ever result in the homeowner getting the house for free. Don’t be fooled by this. If you stop making payments you will be in default and over time the bank or someone else will take the home back. There is no other possibility.Â
As someone who has bought owner financed notes from people, if the chain is broken, the last person in the chain to have verified transfer is the one in possession of the note. All they would have to do is an assignment of the note through the various parties and it would be cleared up pretty easily if it were not for having to deal with a bunch of idiots at these big service companies. I wouldn’t take the chance on not paying. Good way to get the boot and not have a very sympathetic judge to fall back on.
The problem will be when title companies decide they can not issue title on anything that didn’t have a release done by the original lender. IE – you have a note on your home that changed hands 5 times, you paid it off in 2005 and got a release. You go to sell and the title co decides it can’t issue title because the title co decides they don’t know who issued that release had proper authority to do so, we will have a major issue. And that will be the next shoe to drop.
Have fun and enjoy the ride.
Don’t think for a minute ‘the system’ will allow the little guy to get ahead. Your government will NOT protect you from anything, muchless the banks. Laws can be changed on a whim, and stuck into some other bill. You’ll never know it until later. Be very careful because the powers that be will make sure they prevail and the hell with you, Serf.
@GWTW –
The problem with THAT theory is that a house’s title could’ve changed hands 10 times in 5 years – so I am the current ‘owner’, and the last clearly defined ‘owner’ was from 15 years ago, who kids are just now dividing up the person’s estate, THEY could conceivable have ownership of MY house – that I’ve been living in, raising my family in, and paying my mortgage. leaving the banks even MORE liable – MILLIONS, not just a few $100k.
stupid sheeple !
stop paying your fraudulent mortgage
stop paying fraudulent income tax
wake up !
Any mortgage from any bank associated with the Federal Reserve is a fraud and payments should stop immediately.
Like a 3 card Monty game, it will only end when the players realize they have been scammed and stop putting up their money.
@ God’s Creation & anonymous –
yes yes! stop paying! and when the sheriff comes to escort you and your family out of the house, try explaining to them the intricate details of how the Fed and its minion banks are the REAL culprits. See how far that gets you.
The key to the post is LEGAL. How to do it LEGALLY. Verify that you have legs to stand on before standing up. Governments have a tendancy to cut your feet off so you have no choice but to live on your knees.Â
Comments…..A couple of the posters understand what chain of title means and posted such. The problem is in the transfers. These will have to be unclouded with clear titles held by, in most cases, the originators of the note. This could take months or years. All the bundles of shares of mortgages will have to be broken up with seperate titles divied up amongst the investors. Then the foreclosure proceedings WILL continue.
Now will gov’t get involved? You betcha. It is all about tax revenue streams.
I won’t be surprised if defaulting on mortgage payments becomes a felony if it can be shown that the default was intentional. You really don’t think that the purchasers will get a home for pennies on the dollar do you? I certainly wouldn’t wouldn’t participate in an orchestrated attempt to defraud the lenders no matter how convuluted the paperwork trail.
Also keep in mind that just like the pot laws, the conspiracy laws pertain to aiding and abetting violations of the law. I can well imagine that laws governing this already exist. Therefore everyone that encourages defrauding the banks could be charged as co-conspirators.
The people will blame everyone else for this mess. The same people participated in the mess as willful and eager buyers. The voices will clamour, “They talked me into it. They lied. They knew I couldn’t afford it after the reset. Yada, yada, yada.” These people will openly declare they are the wronged party. In my 50+ years, I have met very few people that will admit thier own culpability in the creation of thier personal hell.
Okay for those of you that still think otherwise, here is the scenario you think we should pursue. Large numbers of people quit paying thier mortgages. Revenue streams go dry. Banks fail and FDIC hasn’t the money to protect deposits. Tax revenues decline to almost nothing. More FRNs printed. Hyper-inflation. Economy collapses. Everybody loses. Anarchy with its evil brother chaos sweeps the country. The problem is once you decide to discredit property rights for the banking system, you have effectively eliminated all property rights.
Think about it a moment. The person who tries to claim ownership of a $150K house that they have only paid down the principle by $3K is attempting to defraud the note holder. Will you trust them to live next door to you? Fraud is theft, plain and simple. I won’t defend a thief and I sure won’t trust one to live next door. They have proven that private property rights don’t exist for others.
Â
Buying on time is not ownership. It ain’t yours until the note is paid off, and everything is recorded. You ain’t George Jefferson moving on up just because you bought a house you couldn’t afford. I doubt that few of the commentors have ever studied an amortization schedule or noticed that the total payments are 2.5-3X the actual selling price. For those with ARMs, the figure is even higher.
Â
You screwed up in your greed and now you’re caught. Outhouse, barracks and jailhouse lawyers need to shut up. You wanted to play, now you had better pay.
Â
The paraphrased “Laws of Thermodynamics” applies to this and everything else.
Everything is connected to everything.
Everything has to go somewhere.
There ain’t no such thing as a free lunch. TANSTAAFL
Â
If the economy totally collapses, so do we all. You lack the skills, tools, work ethic and supplies to weather this out. Your skill set is just fine for a thriving economy, but your skill set has nothing of value in this economy. That’s why you are looking for a free lunch. Physician, heal thyself.
Â
This ain’ta gonna happen. People don’t change. Oh yes, there are exceptions. But an exception is a rarity otherwise it wouldn’t be an exception. We are creatures of habit and our habit is to blame others for our misfortunes. To quote Forest Gump, “Stupid is as stupid does.” Choose wisely.
Â
Anecdote: My G/F almost took out a home equity loan just before the bubble broke. She had less than 1 year’s worth of payments left. After listening to me talk about the coming mess, she held off a few months. Now? She is so happy she dodged the bullet and her Deed of Reconveyance is recorded. She is a homeowner, not a home buyer. Lotsa difference.
Over the Hedge,
You are pretty much right on. What some people forget is that in 3-5 years these folks will want to sell that home. If they have used the transfer issue to cloud who they have to pay, they have in effect clouded their own title and good luck selling. Who would they get to sign the release? Because the encumbrance is still a matter of record.
And the encouragement of this is only going to make it worse. It will create a huge mess with clear titles. If someone, like your g/f has paid off their home, but this mess has ballooned. Does anyone think a bank will make a loan or a title co will give insurance on that home (though properly paid for) unless they can physically then verify the person / entity signing the release or Reconveyance Deed had the right to do so.
Hope everyone likes where they live.
Comments….. Then there’s the problem of obtaining title insurance:
Can You Get Title Insurance?
Earlier this month a couple of title insurers stopped issuing title insurance for homes foreclosed on by J.P. Morgan Chase and Ally Financial’s GMAC Mortgage.
Please consider the USA Today report Old Republic to stop writing policies for some foreclosures
Old Republic National Title Insurance, among the nation’s largest title insurance companies, will no longer write new policies for homes foreclosed upon by J.P. Morgan Chase and Ally Financial’s GMAC Mortgage unit –– a sign that concerns about faulty foreclosure paperwork could now endanger new sales of foreclosed homes.
Old Republic issued a bulletin to some agents stating that “the company will not insure title to any property which has been foreclosed by Ally Financial, Ally Bank or GMAC until further notice,” according to a Sept. 29 copy of the memo. The concern is that other title companies will also refuse to issue policies for major lenders, which could have major ramifications for the housing industry.
And Maryln Weiner, a title agent and real estate lawyer in Boca Raton, Fla., said she received a bulletin saying that Old Republic would also not insure title policy to a purchaser who has bought a property from Chase when the bank has foreclosed on the home and are now selling it to third parties.
“They won’t insure it after completion after the foreclosure,” Weiner says. “This is going to set us back years. It’s really going to be a mess. I think you’re going to see actions to reopen foreclosures that already took place. This will have tremendous consequences and all title companies will do the same thing. We’ve never seen anything like this before.”
Mark Stopa, a lawyer in Florida who represents homeowners, says the implications are huge. Buyers will not purchase homes that have been foreclosed upon if they don’t have insurance that it’s a clear title, he says.
“Would you buy the house? If there’s questions about the title, you can’t sell it, so who’s going to buy it?” Stopa says.
And distressed homes, which include foreclosed properties and that now make up a significant number of housing sales, rose to 34% of sales in August from 32% in July; they were 31% in August 2009, according to the National Association of Realtors.
http://www.safehaven.com/article/18523/unclear-titles-will-sideline-buyers-of-foreclosed-properties-for-many-months
Someone has to prove title to the property. And I do agree with TJG.
This country does not have enough Attorneys to even start, to fix this mess.   Free homes or not…..everyone will be  F*CKED!  Say goodbye to the economy, and likely the country.
If this does implode,  it is not my house payment,  that  I am not paying,….it’s UNCLE SAM…..  He will be too busy to notice.
Financial Fraud
, yet another violation of our rights. Add it to the list of gov’t violations of our right:
They violate the 1st Amendment by fencing-in demonstrators at G-20, banning books like “America Deceived II” and trying to take-over the internet.
They violate the 2nd Amendment by confiscating guns.
They violate the 4th and 5th Amendment by wireless wiretapping.
They violate the entire Constitution by starting undeclared wars.
Impeach Obama (and sweep out the Congress, except Ron Paul).
[Link of Banned Book]:
http://www.iuniverse.com/Bookstore/BookDetail.aspx?BookId=SKU-000190526
@ GoldenFoxx & OverTheEdge
I think you are both right – however Goldenfoxx makes a good point, “Someone has to prove title to the property”. No Bank, no Title Insurance company, not even YOU can provide clear title to your own house anymore. So, OTE – if no one can prove they own any houses (and that in and of itself is a farce – property taxes), how can even the GOV’T prove that you own a house to tax you on at this point?
I’m all for paying off my contractual obligations – but if the only reason I’m paying out half my paycheck is to keep some grand illusion alive for 6 billion strangers, I’d rather keep my money – as worthless as it would be. at least i EARNED it. that’s not something the banks can say.
/for SURE, this is a genuine fustercluck.
If it sounds too good to be true, it is. Nobody is going to allow anyone to get away with not paying hundreds of thousands of dollars in mortgage payments. That is absurd.
What worries me is the idea that I can’t be sure I’m paying the right entity and then 30 years later I make my last payment and want my title and nobody knows who should be signing the lien release. I got a letter from Bank of America about a year ago saying they sold my mortgage to Fannie Mae – ie it went into the abyss. What is Fannie Mae, really? Where is the branch office? How do I walk into Fannie Mae and demand my note? If anybody is going to get screwed in the end, me, BoA, Fannie…who would you bet it’s going to be?
Chain of Title of the Note…??? WTF, go take a real estate law course you stupid idiots.  Shame on you Mac for printing this shit for brains story.
Comments…..
blackballs
October 15th, 2010 at 7:54 pm
Chain of Title of the Note…??? WTF, go take a real estate law course you stupid idiots.  Shame on you Mac for printing this shit for brains story.
Chain of Title begins with the County recorder. Also, when the buyer purchased the home, they did indeed paid title insurance, IMHO it’s up to the title insurance Co. to trace the transaction because they are the insurer. Look on you loan docs and see the fees paid. If you don’t have any loan docs, you are a moron.
Too many would-be bank employees here. Too many devil’s advocates too.
One or two, they will be caught.
One hundred thousand or two hundred thousand, now that’s a different problem.
If people begin to fight this in earnest, the mess would be almost impossible to clean up.
I suggest you all go read the Uniform Commercial Code with respect to negotiable instruments, found here
http://www.law.cornell.edu/ucc/3/overview.html#3-205
a) you all might learn something, and
b) you all might give up pretending to be lawyers.
Get the KY out, most have just been raped. They will come back for more & it won’t be pretty. Great piece! It link below describes how politics comes to play which makes it as interesting to see as a airline accident out at sea with severed floating corpse’s floating everywhere with a shark feeding frenzy during a lawyers convention. The horror! The horror……  It’s like watching a snail crawl along the edge of a straight razor. That’s my dream; that’s my nightmare. Crawling, slithering, along the edge of a straight razor… and surviving. The bullshit is piling up so fast, you need wings to stay above it. Never get out of the boat. Absolutely xxxxxxxxx right! Unless you were goin’ all the way.Â
http://gonzalolira.blogspot.com/2010/10/second-leg-down-of-americas-death.html
LISTEN TO RANDY KELTON ON ALEX JONES, AMAZING STUFF…
p.s.
pay particular attention to randy’s comments about chapter 7 and the 62 million MERS morgages which the courts are saying are fraudulant…
Joke: What’s the difference between a lawyer & a politician? This is not a trick question! Pub or dem…..
Notes change hands all the time and yes there is a chain of title, at least in Texas. You see the property has a deed of trust that gets filed that references said note. The note then, to be transferred properly, must be assigned and said assignment filed in the county of record. It is pretty simple actually. At least until enough people start litigating trying to say they were foreclosed on improperly, even though they were months and months in default. Then the title companies, banks, and buyers will all want to do a rectal exam on whomever signed or is signing any releases, assignments, etc just to make sure they actually will have title.
This is what trying to get something for nothing gets a society.
Go ahead, create a mess. But I hope every one has enough to pay cash for their next home without selling the one they are in. Or get comfy, cause you may be there a while.
BTW I wonder if these people now claiming the folks they are paying, or were but now don’t want to pay, claimed the interest deduction on their taxes?
If you borrowed the money, pay it back. Its called personal responsibility and if we have a shot as a society, we have to exercise it.
This is how I understand it, but I’m not a lawyer. Someone please correct me if I’m wrong.
When the note and the mortgage are separated by the MERS process/securitization, as some courts have said they are, the debt still exists, but it becomes unsecured debt. In other words, the property is no longer collateralized, or emcumbered. I think this is where the idea of deadbeats getting a free house is misconstrued. The debt doesn’t go away.
If a borrower decides to stop paying the debt, recovery can be enforced by attaching the borrower’s assets (including the home), and in some states, by garnishment of wages and seized bank accounts. I read that South Carolina does not allow garnishment of wages, but many other states do.
Garnishment of wages cannot affect certain income, such as social security benefits or veterans’ compensation (unless a debt is owed to the IRS.) And only a small percentage, maybe 10 percent, can be garnished from a worker’s pay. (State laws differ, so I’m not sure about that percentage.) Employers are obligated to deduct that certain amount from an individual’s pay once legally notified of garnishment of wages.
Now the issue still is going to be WHO OWNS THE DOGGONE NOTE!
One clarification. When I said the assignment needed to be filed. It is the same as a deed in Texas at least. It doesn’t have to be filed to be valid, just delivered and accepted. However, the standard is to file it because if two people claim to have a deed or assignment or whatever, the first one filed of record takes precedent. That’s why deeds, releases etc are filed right away.
Another clarification, I had a property where the note was sold and transferred and I paid the previous holder and they forwarded the two payments until I was provided a signed assignment.
If the previous holder had not accepted payments, I had prepared to pay my payments to my attorney trust account so I would have it when they finally did show me the documentation. Of course I was also using the attorney to request the docs.
Final thought, I have had success offering the new note holder a discount for payoff immediately. Alot of times these days, they have purchased at a discount and will give some of that to you to make a quick profit. Then you can go to a local lender and cut out the Unknown Banker.
I say, “Let the buyer of your mortgage beware!”
If the government will assist the bank in foreclosing, they should assist in getting you a free house also.
Well I have seen no one mention the fact we have already paid the banks off in the form of TARP money, and will yet again be paying them off in the form of inflation (as will our grandchildren), as the chore of filling in the 6+ trillion dollar derivative black hole falls on we the people…  So since we are all serfs now, why do we have to pay a mortgage payment at all?? Seems like a no brainer to me, you have paid your loan in spades, stop sending in the payment.Â
I think we the people should just consent to no longer send in mortgage payments, and consider it our bailout, or at least some form of pay BACK to the people. After what the banks have done not only to this nation, but to the world, I find it hard to believe any normal person would advocate to “keep paying your mortgage” what, you all working for the banks?? WTF OVER?? POWER TO THE PEOPLE! REVOLT NOW!
JSD,
Okay – I read the legal code 205. Are you stating that what the banks did, even if they were “fruadulently creating” Chain of Title documents, that it was in the interest of all parties and that it is legal?   I’m not a lawyer and would never claim to be, but if that’s the case, is this much ado about nothing?
MIRuss,
What I am saying is the banksters have not followed the UCC and do not have documents properly indorsed so as to create a Holder in Due Course on may of these notes. As to the so-called ‘chain of title’, that term in my view refers to chain of title as to the property deed. The note and its chain of indorsements is a separate item in my view. The first is important when you want to transfer title of a property. The second only relates to enforcement of the note. This is my view and others may disagree.
Cheers,
JSD
Comments…..Talking to my Bankruptcy Lawyer it is true, and she has had a few wouldn’t say how many get out of paying the mortgage company. Looks like I will know in a few weeks….
KK…….. who is your bankrupcy attorney in AZ. I am looking for one. What do you mean they get out of paying their mortgage co. I just want a frigin modification to accomadate my new income that has dropped 4g a month lol. Is this a ch. 13 or 7 bk. I heard when you go ch. 7 you lose the bank will definetly foreclose.
Comments….. So Colorado is a non-judicial state. Meaning that the foreclosure process happens outside the court system. So the only way to challenge the banks would be in civil court??? I looked up my clerk recorder and found that the deed still shows compass bank owns my note… but compass sold it to countrywide which was then acquired by BOA. BOA has a copy of my original note on their website, and a copy of when it was sold to countrywide. So is BOA responsible for updating the county records? of course this is IF they even know who owns the original note right?