No standing in foreclosure may also mean no standing to release the deed, RIGHT?

[Better Today]

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x6824183

After reading the above OP regarding the recent cases where it is being determined that certain banks who've purchased bundled loans, not just subprime loans, but any loans, may not have standing to foreclose on homeowners who are deliquent; I got to thinking, if they have no standing to foreclose, do they have standing to release the deed of property if and when a loan is satisfying or re-financed?

As you can read in that OP, I began a search to see where my not-sub-prime, regular 30 year fixed, below 6% loan was really sitting at the county level. After finding that none of the three banks who have transferred my loan from the original local bank have properly registered their assignments of the deed to my property. I asked the county recorder if this could be a problem, she said yes, but wouldn't be specific, recommended I check with the title company who closed on my loan or any title company as it is their responsibility ultimately to resolve these issues.

EVEN IF YOU HAVE A NORMAL LOAN, EVEN IF YOU HAVE NO CONCERNS ABOUT FORECLOSING, IF YOUR LOAN HAS BEEN SOLD OR TRANSFERRED TO ANOTHER BANK(S), you should check to be sure that they will have the standing to hand over the documents you will need in order to have the property re-conveyed to you when you pay it off or to a new financier should you decide to re-fi.

For my case, the title company says and the original bank has confirmed, that a certified assignment of deed AND the original loan docs must be presented to me by the CitiMortgage when I complete the payment of the loan, who is not listed in the county records for my property though they claim to have control of my loan. Without these two documents, the property cannot pass the title search and therefore even if I have fully paid the loan and all the interest, on time or whatever, CitiMortgage will not be able to provide me with what I need to have the property re-conveyed to me upon satisfaction of the debt.

BTW, if any lawyers or mortgage related persons out there think this is wrong or that I'm turning a mole hill into a mountain, please chime in and tell me where I've been mis-informed.

My concern is that most of us aren't anywhere near to the end of our legitimate, non-sub-prime loans. . . we may go through paying the next 20-25 years of payments to THEN FIND OUT that we can never actually own our homes. In my case the original bank is being extremely helpful at this time and wants to know what the outcome of the request for proof of documents will be, perhaps if CitiMortgage doesn't have them or can't find them, they will be able to release me since the two intermediary banks are now entirely defunct. They have assured me that they would not release original loan docs to CitiMortgage under any circumstances, but would provide a certified copy of the original assignment of deed to the original bank, only half of the required docs.

Someone, anyone, tell me where I'm wrong here to be concerned about the standing of a bank that may or may not have the original docs available, not just from a foreclosure standpoint, bad for them, but from a payoff standpoint, bad for me.

Otherwise I strongly recommend anyone who has had their loan sold from one bank to another, . . . check, starting with your county recorder, who your loan is actually assigned to and whether the bank you're currently paying has any standing to release your property to you or a re-fi bank in the future.

As Rachel says, "talk me down"

[willing dwarf]

1. An excellent question

I'm not a title agent nor a lawyer so I have no expertise here, but I think your concern is a good one. --One thing for sure, the answer will probably involve getting a lawyer to resolve the issue. The lawyers are probably guaranteeing lots of future work for themselves.

[Better Today]

2. Please rec the thread to keep it at the top so we may find answers.

At this point I don't believe I will need a lawyer, as I simply need (I think, I hope) to request that they prove they have the docs required, however if they do not, then I don't know what the heck to do except to stop paying the loan. Make them try to force the issue. I will be sure to send the letter requesting proof via certified/return receipt, and I will give them 30 days.

In the letter I will be noting the lack of assigned deed at the county level and a recent threatening letter they sent me (due to a lost payment that I called about before they even sent the letter because I hadn't received the usual statement at the usual time) in which it became obvious that they were not within the rights granted in the original loan to #1 threaten anything before I was in default for at least 60 days (I called on the 15th, was told to double my next payment, the letter was sent out on the 18th which I received around the 22nd all in the month of August), #2 to send an investigative appraiser to my home to inspect my property and then charge me for same (at least not until I was in 60 day default and legal proceedings began).

Clearly I'm still formulating the letter in my head. I've not slept all night for concern about this and worry about the 1.5 years or so I've already been paying CitiMortgage.

Really concerning stuff here. I hope some folks with potential answers and ideas will chime in soon.

[willing dwarf]

5. I didn't think you'd need a lawyer...

really, I was thinking of the larger picure. It's going to be really interesting to see how they clean this one up.

In Ireland there's been a huge mess with land title's since back at the time of the War for Irish Independence. Unless a family had money to hire a lawyer, the land had no title. Lots of people still haven't paid to have the title to their land put right, as a result they can only hand the land over to a direct family member, no sale of land is possible. Of course they can get it corrected but it takes money and attornies.

Will we see something similar here?

[Better Today]

11. That's what I'm wondering, I don't expect, nor will I tolerate the idea that

I'll have to pay a lawyer or have delays due to the banks' failures. Hence put the burden on CitiMortgage to prove their docs are in order before I continue to pay. Make them pay to resolve their issues.

Edited to add: Unless someone here explains to me why that's a really bad idea, not paying till they resolve the issue that is.

[RC]

3. If an institution has no standing in a foreclosure, then

that means, among other things, that they do not have the deed. Without the deed, they can't legally foreclose.
Lots of deeds got lost in the mad scramble of all the Ponzi schemes the money people came up with. People have kept their houses because the banks could not come up with the deed.

I'm not an attorney and don't play on on TV either.

[Better Today]

4. That's what I've been reading, this question is related but not the same.

Have I worded it poorly, do I need to give more explanation?

[sendero]

6. I think...

... it's not the deed but the mortgage that the banks can't come up with.

When you buy a house with a mortgage you get the deed but it has a mortgage lein attached. At least in Tx.

[Better Today]

9. If you have a mortgage, you have a lien or assignment of the deed. Check with your

county recorded to find out the exact verbage for TX.

Yes, from what I have learned, you are correct the issue is with the loan docs, but, and it's a big but, somehow you have to be released from the lien, the asignment, or whatever, through property procedures or you may not actually ever get a clear deed to your property. Or so I'm told. I was also told that most people don't know that after they payoff a property loan, they have to apply for a re-conveyance of the deed to themselves. Otherwise the bank actually stays as the assignee and upon your death or your attempt to sell the house, it causes delays at the very least.

[Sanity Claws]

13. The bank has a lien against the property

I don't know what you mean by assignment of the deed. The deed is in the homeowner's name. The bank has a security interest in the property, which it can foreclose on if the homeowner fails to pay the loan secured by the mortgage filing.

The question is what happens when the person wants to sell the property. The buyer will want a property free of liens. How do you get rid of this kind of a lien?

[Better Today]

19. The point is that there is no county record showing CitiMortgage as having a lien or

an assignment (the term used here apparently for essentially the same as I would call a lien). It is still with the originating bank who sold it 5 years ago wherein it was not re-assigned, then sold again wherein it was not re-assigned, then sold to CitiMortgage who has not had it re-assigned. Except for this MINS# tracking, there is no evidence that CitiMortgage has claim to the property.

[Sanity Claws]

24. But the OP was concerned about other effects of the inability to prove

who holds the mortgage.
Yes, CitiMortgage can't produce the note and prove it holds an interest on the property. But if you check the records with the County, the mortgage is still on record. How do you get the lien off the property?

[Better Today]

26. Exactly?!?! Do I start paying the lender on record, the one who originated the loan?

Exactly the issue. No one has ever cleared the lien from the originating bank, so the county believes I owe that bank not CitiMortgage.

I think another call to the originating bank may be in order.

[Sanity Claws]

29. You are concerned about who the homeowner pays

I may be wrong but I understood the OP to be concerned about a default or foreclosure situation. Let's say you stave off the foreclosure by demanding the foreclosing entity produce the note and it is unable to do so. It looks like the foreclosure suit will be dismissed. But things are still up in the air because the lien is still as of record. I certainly would not pay the original mortgagor listed as of record, even it existed. I'd be pissing my money away.

[Better Today]

33. I am the OP. I am not concerned with foreclosure, I'm concerned that

CitiMortgage will not be able to provide the required paperwork once the loan is paid in full through me directly or through a re-fi because original docs are required and since they never recorded a lien against the property, the county is unaware of their supposed interest in the property, which may indicate that they don't have the proper documents to actually file for that lien.


It a circle jerk to be sure, but it's their circle jerk and I aim to have them clear it up or get out of the way.

[Sanity Claws]

34. It won't need the original documents to release the lien.

It can file another document to release it.

[Better Today]

36. Which other document? And for which part? Please elaborate.

[Vinca]

7. I've been wondering the same thing and feel fortunate my mortgage

is held by a small, local bank. If the note has been sold, resold and sold again and mixed up with tens of thousands of other notes, how do they figure out who's got the authority to give you a mortgage that is free and clear? The whole bundling scheme was nuts from day one.

[Raven]

8. The Title Company is your first stop. They have insured that you got

good, record, marktable title to your property. Title Companies often provide "lenders' policies" which insure the mortgage to the lender. These two policies are usually issued at the closing.

Another possibility if all else fails would be to bring an "Action to Quiet Title" in land court. You would provide evidence of payment of the loan and ask the court to order the discharge of the mortgage and release of the deed.

I have a vague memory that Massachusetts has a law protecting people who can't get releases of their mortgage. You might check your state law on that.

But the recorder was right, start with the Title Company.

[Better Today]

10. I already did, and mentioned their response in the OP.

[Raven]

12. I know you talked with them but I'm suggesting that if it comes to

having to go after the documents or quiet the title, the Title Company should take the lead. You should not have to hire a lawyer on your own. That's what you paid the premium for. Sorry if I was confusing, I've got the fuzzies this morning.

[Better Today]

16. Oh, I see. One other thing I think that rings in the OP is that CitiMortgage

is on my poo list. Citibank as a whole due to their outrageous behavior, and CitiMortgage by default and because they threatened me. I admit to the concept that a portion of my desire to see this through is because they deserve to be rattled, as do many of these banks that are in this racket and have us a a disadvantage.

I'm hoping to start a mass onslaught of concerned and demanding letters to these places to force them to either come up with the goods, or do without payments from tons of us.

[Raven]

20. Be careful. I had a client once who had a mortgage with a real

lowlife "mortgage company". The guy who ran the company was a disbarred lawyer who was in all sorts of legal trouble. After a few years of my client making payments, the company disappeared. No more monthly mortgage statements, my client couldn't find the guy or the company so he just stopped paying. Several years later, the guy shows up and wants his money and huge late fees. We had a preliminary hearing before a judge who pointedly asked my client if he got the mortgage $ from this rat and therefore, didn't he have an obligation to pay it back. Not a promising start for our case! We settled and we got the late fees erased. Bottom line is if you had the benefit of the $, you owe it back. My client should have set up an escrow account and kept making the payments into it but he didn't. Nothing in this world is free.

[Better Today]

22. Good point about an escrow account to show my intent to pay as soon

as the issue was cleared up would be a wise choice. I will be sure as well to put something in the letter regarding refusal to pay late fees, interest during the interim, .... anything else? ... till they prove the docs.

[Raven]

25. It sound to me like you are getting bills from the lender each month

or mortgage statements. I think you should continue to pay the lender if you are getting those. My suggestion of an escrow was if you couldn't find the lender. If you decide to boycott the lender, absolutely set up an escrow and spell out its purpose. Check with a lawyer in your state before you do it.

[Better Today]

27. Please explain why? If they haven't put a lien against the property or what is called here

an assignment of deed, and that assignment is still with the originating bank, isn't that their problem? Isn't it right for me to be concerned and to halt payments till I know who actually holds that lien and they file it appropriately?

[Raven]

31. At some point you got a notice from your current lender that they had

your mortgage and that you should begin making payments to them. I assume you've been doing that. Keep doing that while you are demanding evidence from them that they hold the appropriate papers with respect to the loan. You have all the right in the world to be concerned but you need to cover your ass on this. Send the lender a certified letter stating your concerns and asking them for specific proof of their standing as your lender. Give them a deadline. But before you begin withholding payments, see a lawyer. The banks hold all the cards in this country, as we all know.

[wroberts189]

15. +1 .. they charged you for a title search I am sure... nt

[Better Today]

17. I'm not sure I understand your point. The title company was working for the

original local bank that executed the loan, not for me, and not for CitiMortgage. So how am I insured in anyway?

[Raven]

21. You might have gotten an "owners' policy". When a Title Company issues a

"lenders' policy they will issue an owners policy with it for a slightly higher preminum. I always recommended that buyers get the owners policy. Check your closing file.

[Better Today]

23. I got that when I bought the home originally, this was a re-fi, so only the lender

had concerns.

[wroberts189]

14. I am not a lawyer but imho ...It's a very good angle to pursue....

Before you have to default... check and see. Might give you leverage with the lender.


knr

[Better Today]

18. To repeat from an above post, and to clarify. I'm thinking we should all individually

be a part of the "hold the banks responsible" agenda. They expect us to dot our i's and cross our t's, we should all expect the same from them, individually if necessary. Perhaps the reverse of a boycott, a show-me-the-docs-cott.

[rgbecker]

28. How about starting with your local bank...

Get them to write you a letter saying you owe them nothing and record that letter. That will at least remove them from the title, and then you won't have them involved when whoever else comes along trying to get money out of you or when you go to sell or request the mortgage release. If they refuse, insist all payments go to them and then you'll have the record of paying them as the original mortgage required. Let them sort it out with Citimortgage or the others.

This is really an interesting post that could affect thousands of current unforeclosed properties. But one would have to carefully study the recorded mortgage deed which have been recorded. Owning property involves defending your title and even with a title company involved, a title could become screwed up in many ways...for example with tax and mechanic's liens besides mortgages, first and second. The hope would be that your bank hasn't burdened your title in a way that has to be resolved with the hiring of lawyers but that may not be their biggest concern. Let us know what the title company suggests you do.

Re reading your post: So Citimortgage's lien/mortgage doesn't show up at the registry of deeds at all?

[Better Today]

35. Nope, lien reassignment is not to be found. The title and originating banks won't give advice just

giving me the procedural requirements so I can know what CitiMortgage is supposed to have.

Since CitiMortgage is not the bank that the originating bank sold the loan, they will not (or so they say) give CitiBank a certified original of the loan. I'm not sure they even have that since the original loan is supposed to be in CitiMortgage's custody. Otherwise the only recommendation I received was to request confirmation and/or proof they have the correct original documents, and the originating bank sent me pdf's of those in case I didn't have them which I do, but packed away. Those pdf's are stamped COPY.

[Phoebe Loosinhouse]

39. You can pay a title company to do an official title search for you

and help you clear the title. You possibly could end up needing to hire a good real estate attorney as well in order file a quiet title suit if it comes to that. I have known FANTASTIC people in the title industry who have tracked down obscure wills, found lost siblings, etc, in order to clear a title.

[Better Today]

40. Okay, another call to the title company to find out what they would be

looking for regarding this issue if I were to be selling the house tomorrow, and then how would they handle a dispute if I were to bring one against Citi's right to the claim of mortgage due.

[Phoebe Loosinhouse]

30. A deed and a mortgage are not the same thing

The day you bought your house a deed was recorded with your name on it at the courthouse. Simultaneously recorded with that was probably also a mortgage which is a lien on the property.

A title search sees if there are liens on properties. If there are, they must be discharged at the time of reconveyance or prior to that. To protect yourself when you buy property you should ALWAYS purchase an OWNER's title policy. A lot of people don't do this, they see that they are paying ffor title insurance at the closing, but do not realize they are paying to protect the title for the BANK, not themselves. An owner's title policy will protect you after the mortgage is discharged and it will compensate you and not the bank for any claims and or losses.

Clouded titles are a big deal and they can be a bear to clean up. A lot of people don't realize that they have title issues on their properties until they are practically on top of a closing date and then they find something that is going to take weeks if not months to clear up. This can be avoided if you will simply pay to do a preliminary title search yourself before you put the house on the market. These searches are not that expensive and you can get working on the issue long before a closing.

[Better Today]

38. I get what you're saying and CitiMortgage has failed to file the lien, and it is still

with the originating bank. Except for a MINS# in some tracking system, there is no record that CitiMortgage has a stake in my property.

[Sanity Claws]

32. Is there a statute of limitations on the note?

Let's say that you are in a foreclosure situation because of a default in payment. The foreclosing entity is unable to produce the note and thus is prevented from foreclosing.
Let's say no one comes forward to demand payment because the original bank is long gone. At what point does failure to demand payment means that the interest is lost, due to the statute of limitations?

Interesting questions.

[Better Today]

37. There are state statutes that handle that. I read them earlier, but it seems like a long time,

because ours is worded as the being so long past the "maturity date" which I believe for this loan would be around 2035.

[formercia]

41. Adverse possession

In Maine, it's 20 years for the Statute of limitations on Real Estate claims.