A former client and friend of mine came to me asking if I could help him sell his home.
He and his wife were divorced. He explained to me that in 2010, she was taken off the mortgage and the mortgage was put in his name.
Unfortunately he, like many others, lost his job in the recession. To top it off he was also upside down on his home. (meaning he owed more than what the home was worth)
We were looking into selling his home as a short sale. He contacted his bank to start both this process and to ask the bank for a loan modification.
After not getting a response back for months, John gave up and quit paying a mortgage he could not afford.
Strange thing, the bank did not do anything. We started looking for other living arrangements but after 6 months, the expected foreclosure did not happen.
What was going on?
This is where I started doing some detective work. County records did not show the 2010 mortgage, all it showed was a mortgage in 2006 in both their names and not with the bank he had mentioned.
Maybe my friend was mistaken so I questioned him: “Are you sure you refinanced in 2010? He was positive and showed me the paperwork that informed him of the fact that his 2010 mortgage initiated by a local bank was sold to Chase.
(The days of lenders servicing the loans they make are over. Only a few banks still do, but overall lenders sell them off to Fannie Mae, Freddie Mac or other large investors. Mortgages are packed into investment packages and sold, often multiple times)
MERS WHAT?
This is when I realized that maybe we were dealing with a paperwork issue involving M.E.R.S, Mortgage Electronic Registration System.
It is the mortgage industry tracking system for millions of mortgages. With millions of mortgages being treated as “paper investments there was a problem in keeping track of who owned what loan,” MERS was formed in 1995.
It drastically simplified record keeping and it was supposed to simplify legal requirements that changes of mortgage ownership be recorded at the local court house. (Remember the 2006 mortgage I saw?)
The plan was that MERS would be that all mortgage ownership documents, deeds of trust, would be in MERS name. MERS would be the owner in the public records system, no matter how many times the loans changed hands. Although MERS really doesn’t own the loans, its members do!
CONFUSED YET? SO ARE THE LAWYERS AND BANKS
In the process of creating it’s own tracking system MERS muddies the legal ownership of loans. As a result lenders cannot prove they own a mortgage, causing issues at time of foreclosure. (Could this be the case for my friend?)
Now the system is not necessarily illegal. MERS represents it’s lenders.
CHALLENGING THE SYSTEM
In some cases judges have decided with MERS in others judges concluded banks could not foreclose as legally MERS was the owner of the mortgage.
In some Missouri suits, homeowners lawyers claim that legal paperwork needed to transfer loans was never actually done within the MERS system, so lenders claim to own loans they actually don’t.
On top of all this the MERS system also has an issue with the “Robo-Signing” scandal. (Mortgage servicing operations and law firms swore to the accuracy of loan ownership records, but never checked them)
SO WHAT DOES THIS MEAN?
Back to my friend, John, it could be that his bank cannot foreclose on him and has not started doing so because it cannot do so. This may be because there is no public record of the loan even existing. It may be that the loan was recorded in MERS but never in the court system. IF it eventually does it may well be that MERS will be recorded as the owner of the mortgage.
I am no lawyer, and cannot say with certainty what happened. Thus I advised my friend to seek legal council. Long story short my friend hired an attorney, who is digging through the mess.
If you think you may have a similar case, consult a real estate attorney about your specific situation.
(There currently is a lawsuit in the missouri courts fighting for families who lost their homes under these circumstances. The lawsuit wants the court to give back the homes to these families. This as the banks that foreclosed were not the owners of the mortgages, MERS was.)
Strange World of Real Estate 