More Trouble for Mortgage Securitizers?
Looks like the Bankruptcy Courts in San Diego are challenging parties far removed from the original mortgage to provide actual proof that they own the mortgage, and have standing to engage with the homeowners.
Kenneth Andrews, a California attorney who also runs the blog San Diego Predatory Lending,explains:
"One of our lawyers was sitting in court waiting on a hearing and heard what happened. This was a relief from stay motion. Something the lender has to do to proceed on a bk. The motion was unopposed meaning the debtor did not defend it. THE JUDGE DID THIS ON HER OWN!!!!. The lawyers fell off the bench when they heard it.
We are now going to oppose every relief from stay if the names on the mortgages don’t match the parities filing in court. Same as the Boyko case in Ohio but in an NON-Judicial foreclosure state.
EVEN BIGGER though is that if the lender has not perfected their lien when the bk is filed, we can avoid it. Meaning they lose their security and stand in line with the rest of the unsecured creditors. The debtors get a 75k homestead that stands in front of the now unsecured lender.
This is a huge problem for securitized mortgages."
No more legal paper free ride -- the parties must prove they are a successor in interest to the original mortgage.
Here is the ruling (PDF below).
If you can't read that:
MOVANT HAS FAILED TO PROVIDE EVIDENCE THAT IT IS ENTITLED TO BRING MOTION
ORIGINAL NOTE AND DEED OF TRUST IN NAME OF MORTGAGE LENDER USA AND NOT MOVANT
NO EVIDENCE OF ASSIGNMENT TO MOVANT
This is becoming bigger and bigger story.
Sunday, December 09, 2007 | 10:43 AM | Permalink
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The legal point is indisputable--and so obvious that even POTUS would probably understand it the first time around. It's called a proof of claim because, after all, to make a claim in a bankruptcy proceeding, you've got to be owed the money.
Who knows whether this a one-off or a big deal? During the S&L crisis 20 years ago, sloppy servicing became a real problem--a man named Dean Couch, for instance, went to jail in Texas, numerous home owners found themselves, in effect, liable for payments remitted but never received, etc. etc. And 35 years ago, many of the Wall Street firms of the day foundered on their back offices (anybody remember F.I. Dupont or Glore Forgenstatts?) and their inability to clear trades.
My guess is that the documentation is pretty good from the warehouse forward into the securitization, but coming into the warehouse is anybody's guess. Stuff was doubtlessly batched, etc. And, if the originator has disappeared, the undertaking to cure any defects in documentation probably isn't worth the paper it's printed on (assuming it was ever executed).
Posted by: Dwight Cramer | Dec 8, 2007 3:31:04 PM
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