State by State Foreclosure Procedures

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EDITOR’S NOTE: All non-judicial states have a provision that allows for judicial foreclosure. It is one of the things that is often overlooked. My point has always been that the non-judicial statutes are unconstitutional only if they don’t allow judicial foreclosures and especially if the foreclosing party is allowed to prevail in a case in which the forecloser would otherwise not prevail in a judicial foreclosure. the trustee in non-judicial foreclosure case is a substitute for the court and must act with due diligence — another fact that is often overlooked.

The implication is that the trustee must act some independence for the protection of both the debtor and creditor. That is impossible when the new creditor appearing on the scene essentially files a substitution of trustee in which the “creditor” is appointed as trustee — a very common scenario that is not apparent on its face. The substitute trustee is often not a trustee and doesn’t qualify because it is controlled or even owned (Recontrust owned by BOA) by the new putative creditor.

The reference to “primarily” simply means that the rules of non-judicial foreclosure or the complexities of the case  make it such that a judicial foreclosure is the only way to resolve the issues of the case. Also commercial foreclosures are usually only allowed as judicial. Check the State statutes and see what they provide — the conditions under which non-judicial is permitted and the conditions under which judicial is mandated.

State by State Foreclosure Procedures

This is a general guide only, laws change and you need to check your state statutes for accurate, up to date procedures. Foreclosure type will most often be either judicial or non-judicial, if you have a specific question about a state process, you can ask it on the discussion board. Months to foreclose include the legal minimum required and the probable time length once foreclosure has begun. Deficiency judgments are available in some states if the lender loses money through the foreclosure process, if it is not practical for the lender to enforce a judgment, it will be listed. Homeowner redemption after foreclosure is possible in some states, the time periods are listed where available.

STATE TYPE OF FORECLOSURE MONTHS TO FORECLOSE
MINIMUM/EXPECTED
DEFICIENCY JUDGMENT REDEMPTION PERIOD
Alabama Primarily Non-Judicial 1/3 Possible and Practical 12 Months
Alaska Both 3/4 Not Practical None
Arizona Both 3/4 Not Practical None
Arkansas Both 4/5 Possible and Practical None
California Primarily Non-Judicial 4/4 Not Practical None
Colorado Primarily Non-Judicial 2/5 Possible and Practical None
Connecticut Judicial/Strict 5/6 Possible and Practical None
Delaware Judicial 3/7 Possible and Practical None
District of Columbia Non-Judicial 2/4 Possible and Practical None
Florida Judicial 5/5 Possible and Practical None
Georgia Primarily Non-Judicial 2/2 Possible and Practical None
Hawaii Primarily Non-Judicial 3/4 Not Practical None
Idaho Non-Judicial 5/6 Possible and Practical None
Illinois Judicial 7/10 Possible and Practical None
Indiana Judicial 5/7 Possible and Practical 3 Months
Iowa Both 5/6 Not Practical 6 Months,if judicial
Kansas Judicial 4/4 Possible andPractical 6-12 Months
Kentucky Judicial 6/5 Possible and Practical None
Louisiana Judicial 2/6 Possible and Practical None
Maine Primarily Judicial 6/10 Possible and Practical None
Maryland Judicial 2/2 Possible and Practical None
Massachusetts Non-Judicial 3/4 Possible and Practical None
Michigan Both 2/2 Possible and Practical 6 Months
Minnesota Both 2/3 Not Practical 6 Months
Mississippi Primarily Non-Judicial 2/3 Possible and Practical None
Missouri Primarily Non-Judicial 2/2 Possible and Practical None
Montana Primarily Non-Judicial 5/5 Not Practical None
Nebraska Judicial 5/6 Possible and Practical None
Nevada Primarily Non-Judicial 4/4 Possible and Practical None
New Hampshire Primarily Non-Judicial 2/3 Possible and Practical None
New Jersey Judicial 3/10 Possible and Practical 10 Days
New Mexico Judicial 4/6 Possible and Practical None
New York Judicial 4/8 Possible and Practical None
North Carolina Non-Judicial 2/4 Possible and Practical None
North Dakota Judicial 3/5 Not Possible 60 Days
Ohio Judicial 5/7 Possible and Practical None
Oklahoma Primarily Judicial 4/7 Possible and Practical None
Oregon Non-Judicial 5/5 Not Practical None
Pennsylvania Judicial 3/9 Not Practical None
Rhode Island Both 2/3 Possible and Practical None
South Carolina Judicial 6/6 Not Practical None
Tennessee Non-Judicial 2/2 Possible and Practical None
Texas Non-Judicial 2/2 Possible and Practical None
Utah Both 4/5 Possible and Practical None
Vermont Both 7/10 Possible and Practical None
Virginia Non-Judicial 2/2 Possible and Practical None
Washington Non-Judicial 4/5 Not Practical None
West Virginia Non-Judicial 2/2 Possible and Practical None
Wisconsin Judicial varies/10 Not Practical None
Wyoming Non-Judicial 2/3 Possible and Practical 3 Months

 

39 Responses

  1. Here is a point I just heard that deserves investigation regarding judicial immunity in the Colorado Rule 120.

    The Rule 120 is non-judicial, non-adversarial with no right to a jury trial; no right to appeal, no right to counter-claim, and no right to discovery.
    only two defense: The money is not owed; and the homeowner is not a subject to the Servicemember’s Civil Relief Act.,

    Not functionally equivalent to judicial proceeding.

    Rule 120 (d) states:

    Neither the granting or denial of the motion is an appealable order or judgment. An aggrieved party my seek injunctive or other relief in any court of competent jurisdiction, without prejudice to any right or remedy of the moving party..

    By enactment of Rule 120 (d), the state of Colorado voluntarily allows any aggrieved party to seek injunctive or other relief in any court of competent jurisdiction which includes federal courts.

    Is this not a voluntary waiver by the State of Colorado of Sovereignty provided by the Eleventh amendment?

    My understanding is that a state can voluntarily waive sovereignty in a state statute, either expressly or by such overwhelming implication that it leaves no room for any other reasonable construction.

    Is this not a waiver of the Younger abstention?

    If sovereignty is waived, does judicial and qualified immunity vanish?

    Therefore, can you sue the judge.

    I am not an attorney, just food for thought.

  2. tnharry,
    You don’t need to understand, Judges are supposed to follow and enforce the Law. You and Judges like you NEED to START OBEYING the LAW.

  3. @dyingtruth – so you think the people interpret the laws, not the judicial branch? i can’t understand that…

  4. tnharry,
    But nowhere in Article III is the Power to interpret granted, therefore it’s reserved to the People pursuant to Amendment X.

  5. @ Ian:

    Where the women are strong, the men are good-looking, and all the children are above average. And the homes are taken at will.

    Like I’ve said, if the borrower is deemed to have no stake or say in the note; which by default means that the PSA and all such securitization arguments are moot, coupled with the fact that mortgage ownership need not be revealed until foreclosure = the borrower is simply in debt peonage.

    Here the MN Supreme Court says so:

    [It must] be true, that if the holder of the legal title allows the equitable owner to foreclose, using his name, both are bound, and the foreclosure is valid. It is a matter between them alone, and does not concern the mortgagor. . . . So in this case, if the one in whom the legal title to the mortgage stood was content that the equitable owner—the one entitled to have the mortgage foreclosed, and to the benefit of the foreclosure—should foreclose, using his name for the purpose, it did not affect the interests of the mortgagor, and he could not object.

    You have to understand that MN has the distinction of having MERS write their own legislation legalizing their crimes. Here the court shoots down the borrower due to the smokescreen:

    The Kebassos next argue that the assignment is defective because MERS had no independent authority to assign the mortgage or the note and the assignment was not authorized by the lender.

    The court disagrees. The mortgage expressly authorizes MERS “to exercise any or all of [Lender’s] interests” and “to take any action required of Lender.”

    The mortgage does not qualify MERS’ authority or otherwise require that MERS receive express authorization from the lender before acting. Moreover, “as a result of questions raised about the MERS System [authority to act on behalf of its members], the Minnesota Legislature passed an amendment … frequently called ‘the MERS statute.'” The statute provides that:

    An assignment … is sufficient to assign … a mortgage if:

    (1) a mortgage is granted to a mortgagee as nominee or agent for a third party identified in the mortgage, and the third party’s successors and assigns;

    (2) a subsequent assignment … is executed by the mortgagee or the third party, its successors or assigns; and

    (3) the assignment … is in recordable form.

    Minn. Stat. § 507.413. The plain language of the statute does not require authorization from the lender before the mortgagee can assign the mortgage. The Kebassos executed a mortgage to MERS as nominee of the lender and the lender’s successors and assigns. …..Therefore, the Kebassos’s argument that MERS had no authority to assign the mortgage fails.

    Believe me I understand that agency law just got trampled. That’s one of my points.

    Now the MN Supreme Court says, “It is an oft-stated principle that the “mortgage,” referring to the security instrument, is incident to the debt, such that a transfer of the debt carries the mortgage with it.”

    But they go on to say:

    “A broader review of our case law demonstrates that it is possible for a party to hold legal title in the security instrument—title that evidences apparent ownership but does not necessarily signify a beneficial interest—without holding an interest in the promissory note.”

    In my admittedly small minded understanding, the MN Supreme Court just nixed hundreds of years of black letter law, and decided that the Federal Supreme Court’s ruling on Longan means nothing.

    I’m also left believing, and witnessing in the courts firsthand, and please correct me if I’m wrong here you legal scholars, that given that note holders can foreclose, and since MERS can assign the mortgage to whomever asks for it, regardless of the note i.e. allowing the alleged mortgage holders to foreclose, that means that anyone that wants to foreclose can do so with the court and the legislature’s blessing.

    Lenders = win

    Borrowers = lose

  6. Hey Oregonites
    I was reading your Blog. Why can a person sit in court as a friend of the court, when every case comes up , where there is no homeowner, as a friend of the court I would hand the judge a ruling that says summary judgment can not occur without the note or whatever the case may be?
    Another issue: Whay can’t non -lawyers represent a client if that person doesn’t charge. In Bankruptcy court I can provide you paperwork if I don’t charge over $75.
    Stan
    Racine WI

  7. OK.

    My point was to question the servicer on the assignment of the DOT. In AZ it is generally accepted that the Note is Negotiable and the Deed automatically follows the note. That is why the deed isn’t recorded every time the notes change hands. It doesn’t matter what I think about this. This is what I have seen time and time again the courts in AZ have ruled.

    That being said. The servicer sent me a copy of the note endorsed in blank. About 3 months later, in a response to a QWR they sent me a “more correct” version of the note endorsed to the depoister and then to the trustee. (Never to the trust). I’ve read about the A-D assignment many times but that is not my question. (Even though it is a valid one).

    The second version of the note they sent also had an “allonge” which stated Aurora was the agent of the Trustee. So Aurora can act on behalf of the agent without being a holder of the note. This brings me to my next question. The note has never been endorsed to Aurora.

    I understand Aurora can act on part of the trustee as it’s agent but…Why would they assign the DOT to Aurora and not the note? Remeber AZ has decided many times the Note follows the Deed and not the other way around. They have said the note is negotiable instrument under UCC but not the deed.

    Would this be a way to try and get to discovery? Many times judges have not even allowed the note to be shown. However, my copy doesn’t show it endorsed to the servicer. Also, the assignment post dates the time the Lender was in business.

    I’m attempting to get to discovery and possibly use the note was split argument therefore it is unsecured. Thanks for everyones responses.

  8. E.Tolle- are you talking strictly uncontested cases? Isn’t anyone contesting anything? If so, are they dismissed as well? Here in PA, from what I hear, no one even shows up to defend their homes. The next county averages 160 f/c per month, 0 people show up. Sometimes 1 person. Never 2.

  9. @ Ian, you wrote, “No one with anything to lose would be signing and filing these illegal documents.”

    In my neck of the woods, fairly good sized law firms are signing off on these documents. Why? Because they are uncontested, therefore they have nothing to lose in the doing. The courts allow it. The judges sit still, and nothing to the contrary is argued. I’m talking mortgages, not DOTs.

    This is the stuff of MERS. The smoke and mirrors hides….and the crimes continue. If I had the time, I could cut and paste a dozen recent cases foreclosing where the originator is long dead and that issue hasn’t even been raised. Because without the note, and with the mortgage hidden from view, what have you?

  10. E.Tolle- you said “anyone can resurrect mortgage or DOT from a long-dead entity “. But a complaint can’t purport to bring an action on behalf of and entity which doesn’t exist. And a trustee can’t be a trustee for an entity which is defunct either. That’s one of the reasons that the attestations, POAs, and assignments are all forged,fabricated and back dated by $10 an hour robosignors. No one with anything to lose would be signing and filing these illegal documents.

  11. @ tnharry wrote, “ – no one said it was securitized in hman’s example. and we weren’t discussing the issues of conveyance to the trust, etc. it’s pretty easy to win a debate when you make up the rules as you go.”

    Tnharry, you are so tiring. I pointed to the securitization aspect when I said, “You and I both know that the reason for MERS is to obfuscate. The note is sold upstream (to investor pools), and the mortgage or DOT is hidden from view until needed to foreclose.” So what? It’s not the pivotal issue.

    Hman’s issue revolved around the fact that anyone with a MERS membership can resurrect a mtge or DOT from a long dead entity with no questions asked. More specifically, the very basic question asked was, “….who gives MERS directions to assign or transfer the DOT?”

    The answer is as obvious as the long pointy nose on your face tnharry….whichever MERS member wants to assign at any given time, note or other evidence of ownership be damned. Although points are given in court for successor in interest claims, none are necessary.

    Speaking of making up the rules, it’s obvious from anyone who has studied the model….the rules for MERS were made up as they went. It’s a massive FAIL. Everyone knows it, save for tnharry. You don’t want to get into a pissing match over MERS’ authenticity where academia is consulted. You don’t stand a chance.

  12. @nora – what facts in hman’s discussion has led you to determine the note is not negotiable? I looked back through and didn’t see any details about the note in the dicsussions

  13. @dyingtruth – i don’t understand your question. Article III establishes the courts. legislative makes the laws, judicial enforces and interprets the laws.

    I’m curious now. Exactly what do you think the role of the judiciary is?

  14. Hey HBGary or tnharry whoever you are,
    Where in the US Constitution does it grant any power of interpretation to the Judicial branch?

    Unless you can find a valid answer, ALL of your THEORIES FAIL.

  15. Most Notes fail the test of being Negotiable:
    The promissory note here is not “payable to bearer or to order” and thus is non-negotiable; consequently, the promissory note is governed by contract law.

    Importance of Determining Whether Instrument Is Negotiable. It is highly important that negotiable paper be favored and protected in the hands of innocent holders, since negotiable bills, checks, and notes represent money and are intended to pass from hand to hand
    as money. The importance of determining whether an instrument is negotiable or not arises because

    (1) an instrument, if negotiable, may be transferred without notice to the debtor, while a transfer of a nonnegotiable chose in action must be with notice to the debtor in order to deprive him of equities arising after the assignment; (

    2) because the assignee of a nonnegotiable instrument takes it subject to all equities and defenses available between the original parties, while a transferee of a negotiable instrument, where he is a holder for value and in due course, that is, a bona fide holder, takes free from all prior equitable defenses, except certain defenses which mау be sa¡d to relate to the very essence of the contract; and

    (3) because a consideration for a negotiable instrument is presumed, while the consideration of a nonnegotiable instrument must ordinarily be proved. Formerly there was another difference, in that an assignee of a nonnegotiable instrument could not sue at law in his own name but only in the name of his assignor; but now an assignee of a nonnegotiable instrument may sue in his own name the same as may a transferee of a negotiable instrument.Where an action is brought on an instrument by the payee, it is generally of no importance whether the instrument is negotiable or nonnegotiable.

  16. PA does have deficiency judgements. I have been reading the statutes all day.

  17. @e. tolle – no one said it was securitized in hman’s example. and we weren’t discussing the issues of conveyance to the trust, etc. it’s pretty easy to win a debate when you make up the rules as you go.

  18. Hey tnharry, Viagra won’t help “failure to convey”. It’s an insurmountable problem.

  19. ” The servicer didn’t have the note. (It is held by a custodian, they have told me this in writing)”.

    Bingo! And yet another securitization fail. More Non-Mortgage Backed Securities to pawn off on ignorant hedge funds depriving yet more municipalities and retirement accounts of collateral.

    What a great world for those that have.

  20. “The servicer didn’t have the note. (It is held by a custodian, they have told me this in writing). Therefore, a non-note holder party is submitting a request…in a manner to create the illusion of another party authorizing the transfer”

    One need not physically hold the note to be entitled to enforce. The law allows for the use of document custodians and the use of such doesn’t destroy “holder” status on its own. I would respectfully disagree with the quoted statement on that basis.

  21. tnharry

    For the sake of argument Let’s assume that the deed follows the note and the note is a negotiable instrument. If MERs rules allows the note holder to request a transfer prior to foreclosure why even transfer the DOT at all? If they already have the note and the deed is assumed to follow it why not just transfer it straight to the substitute trustee?

    In AZ it seems as though they believe the deed follows the note. The supreme court has also stated in Vasquez/Deutsche “The court held that an assignment of a deed of trust does not need to be recorded prior to the filing of a notice of trustee’s sale to enforce the secured obligation against a mortgagor. ”

    As to the MERs question. I guess my best answer would be that at the time of the assignment the defunct lender had no assests. The servicer didn’t have the note. (It is held by a custodian, they have told me this in writing). Therefore, a non-note holder party is submitting a request and they are submitting it in a manner to create the illusion of another party authorizing the transfer. The MERs officer is an empolyee of the servicer. Again if they didn’t want to create an illusion they would simply use their own name but they never do. They hide behind the titles of MERs officers.

    There has to be something in the law somewhere that says you can’t pretend to be a representitive from another company. Some conflict of interest. Some type of fraud. Again, in AZ it seems as though MERs has been allowed. The servicer said I agreed to it when I signed my DOT. I can’t argue around that. Therefore I have to go after the individuals themselves for misrepresenting themselves. Any thoughts?

  22. Hey tnharry. I wasn’t even thinking of that chart, but I believe the point is even more valid when you consider that there’s no watchdog overseeing the transactions in non-judicials. I’d guess it’s been in the millions of instances that fraudulent assignments have been produced and not questioned there, resulting in borrowers-meet-curbs.

    “MERS rules appear to provide for a note holder to request assignment out of MERS into the note holder’s name prior to initiating foreclosure or other court action.”

    Knowing the construction of MERS, what is to keep any member of MERS from assigning a mortgage or DOT into their name for foreclosure? Who is to say they’re the qualified note holder? The honor system? Since when has honor or trust been the benchmark of property law? Public recordation filled that gap.

    You and I both know that the reason for MERS is to obfuscate. The note is sold upstream, and the mortgage or DOT is hidden from view until needed to foreclose. It’s a simple way to undo Carpenter v. Longan, very effectively separating the note from the deed without the necessity of paying off yet more legislators. Servicers answer the phone from New Delhi when homeowners ask questions. The perfect crime.

    I wonder why they couldn’t produce the goods in Ibanez? Kemp? It’s only a matter of time tnharry…..

    One thing I know that MERS does very well nowadays….Tent Cities.

  23. Recontrust owned by BOA

    California Reconveyance Company owned by Chase

    Where’s the rest of the list?

    These companies are linked with the servicer debt collector not the beneficiary. Default is declared to the servicer debt collector not the benefciary. An employee of the trustee sales company makes the assignment to the trust signing as if a ceo of the servicer debt collector wanna be “lender and beneficiary”.

  24. I like that e. tolle. Your point is valid, but look at the chart again. In 31 our of 50 states listed, there is no courtroom or judge in the equation at all.

    As to the discussion of MERS assignments and defunct lenders, how does that reconcile with the premise that the mortgage follows the note? MERS rules appear to provide for a note holder to request assignment out of MERS into the note holder’s name prior to initiating foreclosure or other court action.

  25. So the certified question is:

    If a fraudulent MERS assignment appears in a courtroom and there’s only judges and bank attorneys present, does a house get foreclosed upon?

    Of course it does.

  26. E. Tolle

    Exactly! That is what I’m getting at. The servicer assigns the DOT from the original lender to itself but makes it appear as if it is the other party is directing MERs to make the transfer.

    The original lender is “dead”. Why would a defunct lender in AZ have the “transfer” notarized in Scottsbluff, NE? Hmmm…Could it be because the servicer (Aurora) is headquartered out of there?

    This is my point. Once the fradulent assignment is made can you start by question it? Start by questioning who submitted the request in MERs? If they say the Original lender requested the transfer ask them for some sort of proff and question how can a non-members MER’s member access and submit a request in the database?

  27. @Sal – I would agree that the whole editorial commentary section is wrong. just take those with a grain of salt.

  28. The implication is that the trustee must act some independence for the protection of both the debtor and creditor. That is impossible when the new creditor appearing on the scene essentially files a substitution of trustee in which the “creditor” is appointed as trustee — a very common scenario that is not apparent on its face. The substitute trustee is often not a trustee and doesn’t qualify because it is controlled or even owned (Recontrust owned by BOA) by the new putative creditor.

    This is all false as it pertains to California and probably elsewhere because the Trustee’s duty is only to convey title if notified that debt is paid or to sell the property if notified that the note is in default.

    California Mortgage and Deed of Trust Practice § 1.40 (3d ed Cal CEB 2008)

    § 1.36 b. Trustee
    The trustee under a deed of trust is not a true trustee and is not subject to the general rules governing trusts. Lupertino v Carbahal (1973) 35 CA3d 742, 747, 111 CR 112. The function of such a trustee is to reconvey the property to the trustor if the loan is repaid or to foreclose if it is not. Monterey S.P. Partnership v W.L. Bangham, Inc. (1989) 49
    C3d 454, 261 CR 587. See also §§ 1.31-1.34. The trustee has been referred to as a common agent rather than as a true trustee, but even this label is misleading because the trustee is not required to obtain the trustor’s consent as a precondition to selling the trustor’s interest on foreclosure. Jones v Sierra Verdugo Water Co. (1923) 63 CA 254, 218 P 454.

    § 1.40 (2) Relationship to Trustee

    A beneficiary is not prohibited from also serving as trustee under the deed of trust it holds (More v Calkins (1892) 95 C 435, 30 P 583) or having one of its employees do so (Witter v Bank of Milpitas (1928) 204 C 570, 576, 269 P 614). This is not commonly done, however, because rights, duties, or knowledge in one capacity may be imputed to the
    other.

    The argument below is a good one in California cases!!

    § 1.39 (1) Must Be Obligee
    The beneficiary must be an obligee of the secured obligation (usually the payee of a note), because otherwise the deed of trust in its favor is meaningless. Watkins v Bryant (1891) 91 C 492, 27 P 775; Nagle v Macy (1858) 9 C 426. See §§ 1.8-1.19 on the need for an obligation. The deed of trust is merely an incident of the obligation and has no existence apart from it. Goodfellow v Goodfellow (1933) 219 C 548, 27 P2d 898; Adler v Sargent (1895) 109 C 42, 41 P 799; Turner v Gosden (1932) 121 CA 20, 8 P2d 505. The holder of the note, however, can enforce the deed of trust whether or not named as beneficiary or mortgagee. CC § 2936; see § 1.23.

  29. I’m going to pipe in here simply because I’ve had it with MERS and their generally accepted shenanigans that have somehow gotten a foothold into our so-called legal system. They have nowhere near the rights (if any) that they’re being given by judges, lawyers, and poor-hole-in-wallet pro se litigants writing nonsensical arguments in complaints around the country. But bless the pro se-ers, for they know not what they do, and more importantly, they know no one that can help them, because THERE IS NO ONE! And the legislators doodle at their desks while Amerika burns.

    What’s killing many of these cases is the fact that many folks falsely believe that MERS is everyone’s concurrent agent, the Patron Saint of Pillagers….omniscient and omnipresent….acting as the great benevolent agent to one and all lenders in their time of need, or in this case, in their time of wanting to pillage another house and rape another borrower. That’s pure bullshit, and it’s not nor was it ever legal.

    MERS only functions for the member who is standing directly in front of it in the present action and as to present membership agreement and as to the principal relationship, period. They’re bastardizing age-old law by convincing everyone that they can act on behalf of a dead principal, when they absolutely can not. That’s a case of the principal acting for the agent, which is happening all across the country as we speak.

    It gets even worse when we see principals acting for other principals, even those “principals” that no longer exist (“dead principals”). There are too many of those to even list here, and each and every one of them is being allowed to be resurrected from the grave just long enough to steal poor folks housing because the courts are simply looking the other way. Zombie Law. BTW, one of Delaware AG Biden’s actions in his huge MERS suit is suing MERS for acting on behalf of dissolved entities.

    The following is from Justice Alan Page’s dissent in Jackson v. MERS in Minnesota’s pivotal and unfortunate Supreme Court case. Now I know what many will say here, a dissent is like Nascar, the second place winner is in actuality the first loser. But I’ve read the academics out there speak on MERS, and this guy is right on the money:

    MERS claims to hold legal title, but only legal title, to the
    mortgage being foreclosed. MERS also claims that in
    foreclosing mortgages it acts only as nominee for its
    members. But MERS can act as nominee for only the
    particular MERS member who holds the promissory
    note at any particular time and, when that promissory
    note is assigned between members, the member for
    which MERS acts as nominee, and on whose behalf
    MERS holds legal title, necessarily changes. In other
    words, the entity on whose behalf MERS holds legal
    title to the mortgage changes every time the
    promissory note is assigned. Thus, even if the
    statutory language were not so plain, I would still
    conclude that transfers of the mortgage resulting from
    assignments of the promissory note between MERS
    members must be recorded before the mortgage can
    be foreclosed by advertisement.

    This is exactly what Judge Grossman in NY was talking about when he wrote, “….that MERS didn’t have authority to assign the mortgage to U.S. Bank without having “specific written directions” from the party that initially assigned the loan to MERS….” He also wrote, “The theory that MERS “can act as a ‘common agent’ for undisclosed principals is not supported by the law.”

    But supported or not, they’re getting away with it….and it HAS to stop!

  30. @Enraged:

    “I owe you all an apology: it was not fully aware of the extent to which CA has gone to prevent homeowners from fighting their foreclosures”

    RE Mandelman article about SB 94 in CA:

    Wish all attorneys nationwide would drop the “negotiate/broker” for a mod” reason for a case – it’s a false mod by a false owner. Go for the “identify the owner- secured interest-holder in due course – owner of secured obligation ect. and properly identify the party who properly has standing to mod, refi, sell, satisfy, foreclose anything as the first consideration – show the false claims of ownership in the recorded documents that cloud the title for any further transaction even payment”. Can’t those cases go forward in CA and all non- judicial and judicial ? In some states attorneys won’t take on the – already in the law – challenge to ownership. They are stuck on fear of being perceived by the judge and peers as trying to get a free house for the homeowner. It isn’t free. The debt is owed the beneficiary. Who is that exactly and how much is owed that exact party (other debt owed other parties or not set aside) from his direct records exactly.

  31. TNharry one more if you have a sec.

    The assignee will most likely be MERS in my case being as the Lender listed on my DOT is defunct and MERS is listed as the Assignee. Under MERS rules who gives MERS directions to assign or transfer the DOT? Would that be the defunct lender/principal? Keep in mind the “originating” lender listed on my DOT has not been a MERs member since 2009…(I know that it will be the servicer fabricating the documents this has already been done to me with other properties I owned) I am trying to use MERs rules against them and ask who is directing them to foreclose.

    That being said can a non-mers defunct company give directions to MERS to foreclose? Any rules MERs rules that address a non-member or defunct member whould be greatly appreciated.

    thanks!

  32. @ To all,

    In a previous post, Cheryl mentioned something about going after her long-disappeared broker since, at the time he committed whatever misdeed she alleges, “he had insurance”.

    I would like to warn you all of a little known fact (and it just occurred to me that the biggest financial scandal ever visited upon humankind was very, very long in the making and consisted of well orchestrated little steps over many, many years…):

    Most professional insurance policies, including E & O (Errors and Omissions) and D & O (Directors and Officers) are “claims made” policies. What that means is that, unlike our car insurance, which is usually an “occurence based” policy allowing you to file a claim years after the fact so long as the loss took place during the policy period (within limits of your state’s S.O.L., of course), claims made policies cover losses only when they have been REPORTED during the policy period. The trigger is NOT the date the loss happened but rather the date the loss was REPORTED and/or the claim was asserted. If it was reported after the policy effective dates, there is no coverage.

    Why is it important? Many of the players have disappeared. Cheryl is under the impression that, were she to file a claim today, the insurance policy would still cover it. It is far from the truth. In all those cases, I have the feeling that there really is no money to go after, regardless how egregious the people’s conduct, 3, 5 or 7 years or longer ago.

    That “claims made” system is used for doctors, lawyers and, most importantly, most pharma and chemical plants. It allows the insurer to legally escape paying on losses 5, 10 or 20 years down the road on the grounds that the loss wasn’t reported during the policy period and, therefore, coverage is disclaimed. It is absolutely legal and that’s how many pollution losses have remained unpaid and uncorrected by the culprits.

    AIG was the chamption of the claims made policy. In the 80s, it started to spread like wild fire and most umbrella and reinsurance policies became strictly claims made. Eventually, it almost became the norm for pretty much everything professional. The policies that are still strictly occurence based are the homeowners’ and car insurance policies, along with (of course) health and life policies.

    In all probability, and unless we have a government willing to go after the culprits’ personal assets today in order to compensate homeowners victimized by this atrocity, even the likelihood of collecting insurance proceeds will become more and more remote as the players are shut down, go bankrupt or simply change job. The time to act is NOW, while those players are still in charge and in operation. We have to wonder why, since the fraud has been uncovered, no one is going after the responsible parties. One answer is obvious: the statute of limitation starts running as soon as the tort was or should have been discovered. Since 60 minutes ran those pieces on fraudclosures, the tort statute has been running. Where most of the money can be made (negligence, breach of contract, etc.), the statute is running. The statute of fraud does not allow as much compensation since it mostly provides for criminal penalties.

    I don’t know yet the full implication of what I just wrote but I expect it to be colossally in favor of banks and CEOs and to seriously add insult to homeowners’ injuries.

    It troubles me to think that every step of this non action by our government might very well be calculated to the last “t”.

  33. Thanks TNharry for the info

  34. @ All the CA homeowners,

    I owe you all an apology: it was not fully aware of the extent to which CA has gone to prevent homeowners from fighting their foreclosures. Had I known how bad it is, I might have been a tad more understanding.

    Below is the last Mandelman post about how an attorney just filed suit to strike SB 94 on anticonstitutionality grounds.

    Let’s hope he prevails. Otherwise, CA doesn’t have a prayer!

    http://mandelman.ml-implode.com/2012/01/bostwick-putting-sb-94-and-california-state-bar-on-trial/

  35. transnation was acquired by fidelity. http://www.landam.com/fidelityacquiredsubs.pdf

    the assignee of the DOT has the power to appoint a substitute or successor trustee. it’s a clause in the DOT. usually one of the first things that happens in a foreclosure is the recording of the new trustee

  36. TNharry

    What if the trustee on the DOT is gone and nothing else has been recorded? When a loan is sold does the purchaser of the loan get to choose a new trustee. I know that when a loan is sold they are supposed to give you notice of who the loan was sold…but if the trustee changes do they have to give you notice of this change as well?

    BTW does anyone know what happened to Transnation? Did they get purchased by Lawyers title? LandAmerica?

  37. @dyingtruth – absolutely false. there’s no delegation of power, it’s a contractual issue and all the information related to the power of sale is in the deed of trust. and by the way, the supremacy clause applies so that a state statute is void to the extent that it actually conflicts with a valid Federal statute or constitution.

  38. “the trustee in non-judicial foreclosure case is a substitute for the court”

    Which is an unconstitutional delegation of power that attempts to circumvent the Supremacy Clause’s “and the Judges in every State shall be bound thereby”.

    Abolishing the Government Top-to-Bottom seems to be the only viable solution (and only available option) at this point.

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