Thursday, August 19, 2010

New Hope for the Upside Down?

With 19 million houses now sitting empty, the mortgage banking industry continues to grind through the foreclosure process, although apparently without enthusiasm, to evict even more delinquent home owners. However, there may be hope on the horizon. You've probably heard of a case or two where the bank couldn't produce the mortgage paper to prove that they owned the house. What if they couldn't prove that they owned 62 million of them? From here:

That means hordes of victims of predatory lending could end up owning their homes free and clear—while the financial industry could end up skewered on its own sword.

California Precedent
The latest of these court decisions came down in California on May 20, 2010, in a bankruptcy case called In re Walker, Case no. 10-21656-E–11. The court held that MERS could not foreclose because it was a mere nominee; and that as a result, plaintiff Citibank could not collect on its claim. The judge opined:

Since no evidence of MERS’ ownership of the underlying note has been offered, and other courts have concluded that MERS does not own the underlying notes, this court is convinced that MERS had no interest it could transfer to Citibank. Since MERS did not own the underlying note, it could not transfer the beneficial interest of the Deed of Trust to another. Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law.

I'm no expert in these matters but I would certainly read the entire article, and then demand (get an attorney?) that your mortgage holder (bank) prove that it actually has the paper proving that it is legally able to kick you out! Who knows, you could be one of the 62 million "winners"!


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