Deficiency Judgment | FORECLOSURE FRAUD | by DinSFLA

Tag Archive | "deficiency judgment"

Freddie Mac to Servicers of its loans trying to go after deficiency from short sale, deed-in-lieu ‘Don’t Go There’

Freddie Mac to Servicers of its loans trying to go after deficiency from short sale, deed-in-lieu ‘Don’t Go There’


DEFICIENCY FROM SHORT PAYOFFS AND DEEDS-IN-LIEU OF FORECLOSURE

We have updated the Guide to reinforce the requirement that the Servicer, for itself and on behalf of Freddie Mac, must waive all rights to pursue payment of the remaining balance owed by the Borrower under a Freddie Mac-owned Mortgage for all approved short payoffs and deed-in-lieu of foreclosure transactions that have closed in accordance with the Guide and applicable law.

Sections B65.41, Closing, Reporting and Remittance Requirements, and B65.48, Closing, Reporting and
Remittance Requirements, have been updated to reflect this additional information.

[ipaper docId=82005758 access_key=key-1fyhr5ku2oigp3qa2kq1 height=600 width=600 /]

 

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Florida HB 65 – Foreclosure Debt Relief

Florida HB 65 – Foreclosure Debt Relief


General Bill by Soto

Foreclosure Debt Relief: Creates “Foreclosure Debt Claims Act”; authorizes creation & administration of deficiency judgment reimbursement program by Florida Housing Finance Corporation contingent upon occurrence of certain conditions precedent; provides for future termination of program; authorizes continuation of program after depletion of funds; provides procedures & eligibility requirements for homeowners & financial institutions to file specified monetary claims.

Effective Date: upon becoming a law

Original Filed Version

[ipaper docId=77032644 access_key=key-gwakxpa8ppkmoa721o2 height=600 width=600 /]

 

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H. R. 3566 – To ensure uniformity and fairness in deficiency judgments arising from foreclosures on mortgages for single family homes

H. R. 3566 – To ensure uniformity and fairness in deficiency judgments arising from foreclosures on mortgages for single family homes


WASHINGTON, DC – Rep. Edolphus “Ed” Towns (NY-10) introduced today H.R. 3566, the Fairness in Foreclosure Act, a bill which will standardize the length of time after a foreclosure that a mortgage company can bring a deficiency judgment against a homeowner. The bill will also prohibit lenders from bringing a deficiency judgment against low-income borrowers.

“At a time when so many Americans are out of work due to the excesses of the financial industry, we must protect those who are unable to protect themselves. I am fully committed to offering relief to struggling homeowners across the country,” Rep. Towns stated.  “That is why I have introduced the Fairness in Foreclosure Act.  A deficiency judgment after foreclosure seems to be one of the greatest injustices that occur to homeowners after they have gone through the arduous foreclosure process.  Not only are they behind by thousands of dollars on their mortgage payments and facing public auction of their houses, the ordeal may continue indefinitely. “

In some states lenders have the option to pursue borrowers for deficiency judgments up to six years after the date of the foreclosure sale.  If a borrower is sued for a deficiency judgment for the amount that the bank does not recover after a foreclosure sale, then they may have to pay tens of thousands of dollars years later for their one financial hardship. H.R. 3566, if enacted, would provide a fair and balanced process, while bringing relief to homeowners as they struggle to get back on their feet again post-foreclosure.

###

IN THE HOUSE OF REPRESENTATIVES
DECEMBER 6, 2011

Mr. TOWNS (for himself and Mr. GUTIERREZ) introduced the following bill;
which was referred to the Committee on the Judiciary

A BILL
To ensure uniformity and fairness in deficiency judgments
arising from foreclosures on mortgages for single family
homes.

1 Be it enacted by the Senate and House of Representa2
tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ‘‘Fairness in Fore5
closures Act of 2011’’.
6 SEC. 2. REQUIREMENTS FOR DEFICIENCY JUDGMENTS.
7 No action for a deficiency judgment arising from an
8 obligation under a residential mortgage may be brought
9 except in accordance with this Act.

[ipaper docId=75179071 access_key=key-1oua9dih8t888eevgqz6 height=600 width=600 /]

Source: http://towns.house.gov

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MUST READ: Prisoners of Debt

MUST READ: Prisoners of Debt


A fresh start with bankruptcy? Big lenders keep squeezing money out of consumers whose debts were canceled by the courts

BUSINESS WEEK-

In a financial version of Night of the Living Dead, debts forgiven by bankruptcy courts are springing back to life to haunt consumers. Fueling these miniature horror stories is an unlikely market in which seemingly extinguished debts are avidly bought and sold.

The case of Van Rathavongsa illustrates how canceled debts regain vitality. The Raleigh (N.C.) factory worker pulled himself out from beneath a mountain of bills by means of a bankruptcy proceeding that wrapped up in 2002. One of the debts the judge canceled, or “discharged,” was $9,523 Rathavongsa owed to Capital One Financial (COF), the big credit-card company. But Capital One continued to report the factory worker’s discharged debt to credit bureaus as a live balance, according to documents filed in U.S. Bankruptcy Court in Raleigh.

[BUSINESS WEEK]

Image source: Business Week

The document submitted by a former Equifax employee. It asserts that credit files with incorrectly reported pre-bankruptcy debts were “an extremely frequent and reoccurring problem.”

 

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Appeals Judge Roasts Special Judge Sandra Taylor — STATE JUDGE SAYS THAT BANK LAWYER WAS UNETHICAL IN FORECLOSURE CASE— WITH TAYLOR’S “COMPLICITY”

Appeals Judge Roasts Special Judge Sandra Taylor — STATE JUDGE SAYS THAT BANK LAWYER WAS UNETHICAL IN FORECLOSURE CASE— WITH TAYLOR’S “COMPLICITY”


EX PARTE COMMUNICATION, TOO

KWTNBLUE-

It was just a routine foreclosure case. Nothing special. Just another poor smuck losing his house. The pupose of the hearing was to determine how much the smuck was going to have to pay the bank in addition to giving up his house. In legalese, that’s a deficiency judgement. The smuck appealed to the Third District Court of Appeals— but he lost there, too. A three-judge panel voted 2-1 in favor of the bank.

Appeals Judge Juan Ramirez Jr was the sole dissenting judge— but, boy, was his dissenting opinion a barn-burner! “In my view, to affirm what happened here requires that we turn a blind eye to the Florida Rules of Civil Procedure, the Florida Bar Rules of Professional Conduct, and the Code of Judicial Conduct, to say nothing of the Constitutions of the United States and the State of Florida,” Judge Ramirez wrote.

“I dissent because I cannot condone the unprofessional and unethical means used by the bank’s counsel, with the trial court’s complicity, to obtain an amended final judgment in this case. Counsel for Centennial Bank admitted at oral argument that the amended final judgment, which more than doubled the amount of the deficiency judgment, was obtained after an ex parte communication with the judge’s chambers.

“Either the judge or her staff then advised counsel on how to proceed,” Judge Ramirez continued. “Not only was it improper for the trial court to give legal advice, but the advice was wrong— directing counsel to send a letter with a proposed amended final judgment, rather than to file a motion seeking appropriate relief. This was then followed by another ex parte communication— a letter from the bank’s counsel to the judge, that then resulted in a new final judgment two and half times larger than the previous final judgment. The bank did not even send a copy of the letter to the appellant.”

[KWTN]

[ipaper docId=72615695 access_key=key-1gvf52xjnf7jwp59wlo9 height=600 width=600 /]

 

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Foreclosures Are Killing Us, Settlement Neg. Should Include Health Care

Foreclosures Are Killing Us, Settlement Neg. Should Include Health Care


Yes they are & you can add this along with Deficiency Judgments I mentioned. Why must we do all the thinking and the work for these regulators? You know who you are.

NYT-

AFTER slowing down in the first half of the year, the rate of homes entering foreclosure is rising again. First-time default notices were served on 78,000 homes in August, a 33 percent increase from July. A $1 billion federal program to help jobless and underemployed homeowners ended Friday. Foreclosure notices were filed against a record 2.9 million properties last year, and an additional 1.2 million in the first half of this year.

Foreclosure is not just a metaphorical epidemic, but a bona fide public health crisis…

[NEW YORK TIMES]

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House Is Gone but Debt Lives On

House Is Gone but Debt Lives On


This is another reason why ANY Foreclosure Fraud Settlement should and must include a Deficiency Judgment Clause, If it ever gets there. Because after the clouds are removed, you will still have the ghost of foreclosure fraud come back to haunt ya. Pay Attention… Think they won’t double, triple, quadruple dip on you?

1) Since these properties were fraudulently inflated and most were fraudulently foreclosed, they should be BARRED from ever coming after you.
2) Do you think I would throw away any docs from a foreclosure in the next 20 years or so? This is how long they have to come after you. Just like all the lenders that went under in 2003-2009 but still find a way to foreclose on you today, there will be ways.

If the AG’s don’t look after your best interest and stop them now, this horror will never go away! You couldn’t get a short sale done and you couldn’t get a modification done. This they already knew.

WSJ-

LEHIGH ACRES, Fla.—Joseph Reilly lost his vacation home here last year when he was out of work and stopped paying his mortgage. The bank took the house and sold it. Mr. Reilly thought that was the end of it.

In June, he learned otherwise. A phone call informed him of a court judgment against him for $192,576.71.

It turned out that at a foreclosure sale, his former house fetched less than a quarter of what Mr. Reilly owed on it. His bank sued him for the rest.

The result was a foreclosure hangover that homeowners rarely anticipate but increasingly face: a “deficiency judgment.”

[WALL STREET JOURNAL]

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Senate Hearing “The State of the Securitization Markets”

Senate Hearing “The State of the Securitization Markets”


Securities, Insurance, and Investment

Watch this hearing live!

Wednesday, May 18, 2011
09:30 AM – 12:00 PM
538 Dirksen Senate Office Building

The witnesses will be: Professor Steven L. Schwarcz, Stanley A. Star Professor of Law and Business, Duke University School of Law; Mr. Tom Deutsch, Executive Director, American Securitization Forum; Mr. Martin S. Hughes, President and Chief Executive Officer, Redwood Trust; Ms. Lisa Pendergast, President, Commercial Real Estate Finance Council; Ms. Ann Elaine Rutledge, Founding Principal, R&R Consulting; and Mr. Chris J. Katopis, Executive Director, Association of Mortgage Investors.

All hearings are webcasted live and Individuals with disabilities who require an auxiliary aid or service, including closed captioning service for webcast hearings, should contact the committee clerk at 202-224-7391 at least three business days in advance of the hearing date.

Witnesses

Panel 1

  • Professor Steven L. Schwarcz
    Stanley A. Star Professor of Law and Business
    Duke University School of Law
  • Mr. Tom Deutsch
    Executive Director
    American Securitization Forum
  • Mr. Martin S. Hughes
    President and Chief Executive Officer
    Redwood Trust
  • Ms. Lisa Pendergast
    President
    Commercial Real Estate Finance Council
  • Ms. Ann Elaine Rutledge
    Founding Principal
    R&R Consulting
  • Mr. Chris J. Katopis
    Executive Director
    Association of Mortgage Investors
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Foreclosed? The tax man may want his cut

Foreclosed? The tax man may want his cut


Via CNN MONEY

NEW YORK (CNNMoney) — Did you lose your house to foreclosure this year? Did your lender forgive some of your mortgage debt because the house sold for less than it the mortgage balance?

If so, you could be facing a big tax hit.

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Experts Agree On Hawaii Foreclosure Reforms

Experts Agree On Hawaii Foreclosure Reforms


[edit] GUEST COMMENT: Anybody that understands the foreclosure fraud situation and read this document would tell you: REVIEW OF THE HAWAII TASK FORCE REPORT 1/28/11

1. It appears to me that the group was weighted toward lenders/bankers;

2. The report does nothing to address the problems that have been caused by the securitization of mortgages;

3. There is nothing addressing the MERS issue and its subversion of the recordation process;

4. I see nothing that addressed investigating the elimination of non-judicial foreclosures. The recommendations appear to continue the two courses of action (judicial and non-judicial);

5. There was no “out of the box” thinking…just band-aids and hole-plugging. Apparently, Hawaii banks didn’t want to be “painted with the same brush” as mainland banksters; however, all but a couple participated in the securitization feeding frenzi and MERS – and basically didn’t give a damn about the borrower.

More Homeowners Would Have Access To Judge

POSTED: 10:20 am HST January 28, 2011
UPDATED: 1:01 pm HST January 28, 2011

HONOLULU — The state consumer protector said Friday that he was surprised by the consensus between lenders and consumer advocates about several reforms to Hawaii’s foreclosure law that he said will help a lot of people.

Consumer Protector Steven Levins said the recommendations include banning deficiency judgments for people whose homes are lost to nonjudicial foreclosure which is the most often-used process in Hawaii. Nonjudicial foreclosure bypasses the courts in a foreclosure, and is the source of most complaints by consumers, who feel they were not given adequate opportunity to save their homes. Many homeowners who have lost their homes in a nonjudicial foreclosure still must pay the unpaid balance of their mortgage after the foreclosure.

Levins said the proposed reform would not only ban deficiency judgments, but it would allow homeowners to choose to go through judicial foreclosure, which is overseen by a circuit court judge. While that may help protect the homeowners’ rights, Levins said, under judicial foreclosure, the homeowner could still face a deficiency judgment.

The major benefit of judicial oversight is that homeowners would be protected from unethical, illegal or improper procedures by lenders, which he said have become a serious problem with the volume of foreclosures in a Hawaii, many serviced by Mainland lenders.

“We gotta add some humanity to the equation,” said Sen. Brickwood Galuteria.

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Short sales not immune to debt collectors

Short sales not immune to debt collectors


DinSFLA here…take note on this “Banks usually have four years in which to file a deficiency judgment, but they can sell it to a third-party collection agency — “and the collection firms can chase you down for 20 years,” Davis said.”

This being said any of these fool third-party collection agencies that DO NOT do their due diligence will be in a world wind of a surprise! Now not only are they buying of fraud they will have a hard time getting repaid on fraud!

They are going to try to suck the living day lights out of us…Do NOT let your guard down.

ORLANDO, Fla. – July 6, 2010 – With more than half of the Central Florida’s homeowners owing more for their homes than the properties are worth, the question for some has become: How do I get out of this?

Of all the existing-home sales reported by Realtors in the core Orlando market in May, 23 percent were short sales. They are called “short” sales because the sales price come up “short” of, or less than, the amount owed on the mortgage.

What these homeowners, whose loans are “underwater,” may not realize is that they could successfully complete a short sale of their house but then face a lawsuit from their lender for not paying off the entire loan, a shortfall known as a “deficiency.”

At particular risk of being hit with such a debt judgment are owners of second homes and investment properties, homeowners who haven’t faced any kind of financial hardship, and owners who have a second mortgage.

“That’s going to be a huge problem moving forward in the next few years,” said Orlando lawyer Matt Englett, who specializes in home foreclosures. “These people who use Realtors to advise them on the transactions can end up facing deficiencies, and the deficiency notes will go to third-party collections agencies, and they will start suing and progressively pursuing those people.”

Homeowners have several options if they wish to avoid getting calls and lawsuits from debt collectors.

In a mortgage document called the “payoff letter,” a lender may include a blanket provision stating that it reserves the right to sue the seller at any time for unpaid mortgage debt. At the very least, Englett said, sellers need to make sure they do not give lenders that right.

Some lenders, particularly smaller ones, have been willing to state just the opposite — that they will not pursue any mortgage debt from the seller, he added.

Simply asking the lenders to cooperate by removing any wording about collections isn’t enough, Englett said. The seller is usually faced with building a case that details errors and omissions made by the lender in its mortgage documents, to gain leverage and force the lender to forgive the debt.

A new option that emerged in June is a federal program that calls on banks to forgive some of the mortgage debt of certain, qualified short-sale sellers. To qualify, sellers must:

Meet the criteria of the federal government’s Home Affordable Modification Program.

Have the house as their primary residence.

Face a financial hardship, and their mortgage payment must be more than 31 percent of their gross income.

The new program makes short sales a good option for homeowners facing a financial hardship, though it’s not meant for homeowners who can afford their mortgage but want to walk away from an upside-down loan, said Frank Rubino, vice president of the Chase Homeownership Center in Orlando.

“It’s not right. It’s not moral. It’s not the right thing to do,” Rubino said. “Why should customers look to the bank to substantiate a loss for the house they bought? … If they bought the house and sold it for $100,000 more than they paid, they wouldn’t share those profits with the bank.”

The decision of whether to pursue a former homeowner for outstanding debt varies from mortgage servicer to mortgage servicer, Rubino said, and can hinge on such things as whether the customer mismanaged his or her finances, Rubino said.

Sellers with a second mortgage face particular challenges if they try to walk away from a short sale without any remaining debt.

Jennifer Davis, a real estate agent for Lifestyles Home Sales Inc. of St. Cloud, said she recently almost lost a sale because of outstanding debt the seller owed on the house. Fortunately, she said, the buyer wanted the house badly enough to cover the outstanding note.

Banks usually have four years in which to file a deficiency judgment, but they can sell it to a third-party collection agency — “and the collection firms can chase you down for 20 years,” Davis said.

In cases where the seller has a second mortgage or can’t qualify for the federal programs, Davis said, she usually directs them to a real estate lawyer and a tax adviser.

Copyright © 2010, The Orlando Sentinel, Fla., Mary Shanklin, Knight Ridder/Tribune Business News. Distributed by McClatchy-Tribune Information Services.

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Posted in Bank Owned, deficiency judgement, deficiency judgment, foreclosure, foreclosure fraud, foreclosures, mortgage modification, walk awayComments (1)

MOTION FOR DEFICIENCY JUDGMENT – FORECLOSURE CONSEQUENCES

MOTION FOR DEFICIENCY JUDGMENT – FORECLOSURE CONSEQUENCES


Thank you Richard Zaretsky, Esq., for putting this out for us to review!

This is rare but one can never be too certain…

Today I received a call from one of my blog readers asking me for help with a pleading he received months ago, that is now being scheduled for a hearing in August.  This is a prime example of why Strategic Defaults or just walking away from a property can be so dangerous.  The pleading is a Motion for Deficiency Judgment from a foreclosure judgment and sale that occurred but was (like most other foreclosure sales) acquired by the lender for a nominal bid.  I and many others have been writing about this forgotten liability of borrowers.

Now here is an example of just what we said would happen, happening:

Motion for Deficiency page 1

Motion for Deficiency page 2

How the deficiency judgment hearing proof is presented to the court is discussed in my previous article on Foreclosure Deficiency Judgments and my original Back to Basics article.  The essence is that a deficiency judgment to be issued must go through a hearing where the lender submits proof (evidence) of the value of the property. The borrower has the right to refute the values. Getting to the number works like this:

To figure get the balance of the monies the bank must go back to court to ask the court to award it a “Deficiency Judgment”.  The amount is what is in question and the amount is measured using various rules.  Let’s assume the bank bid $100.  The court is not going to say that the house was worth $100 and $324,900 is still owed.  For our assumption we will say that the property is worth $200,000 and the foreclosure judgment is for $325,000.  That means the court will ask for an appraisal of the property as of the day of the foreclosure sale and the judge will likely give it that value.  So it will be the appraisal value less the judgment amount which will equal the Deficiency Judgment.  If the appraisal is $250,000, the Deficiency Judgment would be $75,000.   Now if there was real bidding at the foreclosure sale the judge could consider that bidding and instead adopt the selling price under the competitive bidding process that occurred at the foreclosure sale.  Then the Deficiency Judgment would be the difference from the foreclosure judgment and the winning bid amount. If the competitive bid was $240,000, then the Deficiency Judgment would be $85,000.

Back to the real life person with his August hearing – we suggested that before he retain us to negotiate with the lender on the deficiency amount and terms as a possible settlement without going to court, he try it himself.  We also suggested he speak with a bankruptcy attorney as there may be some planning opportunities available for him before the judgment is entered – if the negotiations don’t work.

Remember, a money judgment – that is what a Deficiency Judgment is – gives the judgment holder broad powers to collect the money, including garnishment and attachment of assets (like bank accounts).  Fraudulent Transfer Acts in the various states will block or take back transfers made to “hide” money from creditors.  See the article at CNN Money.

Copyright 2010 Richard P. Zaretsky, Esq.

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660  RPZ99@Florida-Counsel.comFLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW – We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide!  Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com.

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in deficiency judgement, deficiency judgment, foreclosure, foreclosures, lawsuitComments (0)

Fannie wants to penalize. My “ARSE”…I have the solution!

Fannie wants to penalize. My “ARSE”…I have the solution!


By DinSFLA 6/30/2010

When Fannie Mae announced that she was going to start to penalize people who walk away from underwater mortgages it created a fire storm of angry individuals.

She said it would step up efforts to pursue deficiency judgment—seeking to recoup the difference between the loan balance and the net proceeds of the foreclosure sale—against so-called “strategic” defaulters in states where such suits are allowed. Fannie also will lengthen to seven years, from five, the amount of time borrowers who go through a foreclosure must wait before getting a new loan.

So here is my solution, grab a pen and write this down:

  • Homes have lost not a little but an enormous amount of it’s value up to 70% in some areas.
  • In my opinion it is going to take more than 7 years to see any hope in Real Estate stabilization.
  • Who wants to buy today when we read about possibly 8 million shadow foreclosures that will ultimately bring down the market further to dust?
  • We the tax payers are the owners so who the hell asked us if this is appropriate? Were any of us invited to this meeting and discuss this? Did we have a say in this like we never do? DISCLOSURES?
  • What about the possible millions that were denied a modification from no fault of their own? Oh but the Obama Administration admitted this too…too…too…late :( Who will be responsible for those who were improperly foreclosed on?
  • With the taxes and insurance sky rocketing, it only makes sense to rent for a while.
  • Deficiency Judgment? Do you realize what this little pot you stir will cause?? Hmmm think about it.
  • Credit who wants credit? We don’t even know where our own money is being used.
  • Who do we have to contact to foreclose on Your “arse” Fannie??? After all you are owned by us… Do not bite the hand that feeds you!

You see the threat really has no impact.

Trust is earned my friends and we have absolutely none at the moment.

The evil thing here is that instead of going after the true Run A Ways “the banks” who stole the cash you go after the ones who feed you and behind our back you feed them???

Image source: The Simpsons “Angry Mob”

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in deficiency judgement, deficiency judgment, fannie mae, foreclosure, foreclosure fraud, foreclosures, mortgage modification, non disclosure, shadow foreclosures, walk awayComments (1)

Produce the Note and Deficiency Judgments

Produce the Note and Deficiency Judgments


Some Magically Produce Some Not!

Via: Foreclosure Industry

May 6, 2010 by christine

In speaking with Michael Hirschtick yesterday, he raised a very interesting point that I don’t think a lot of people realize: that enforcement of the Note and foreclosing on the Mortgage are two separate things.

I’ll say that again.

There are two parts to a home loan: the Mortgage and the Note. They are two separate and distinct things. A Mortgage (or Deed of Trust) is basically the instructions on what to do if a borrower defaults on a loan; the Note gives them the right to collect money.

Continue reading… FORECLOSURE INDUSTRY

Related Story: new-mers-standing-case-splits-note-and-mortgage-bellistri-v-ocwen-loan-servicing-mo-app-20100309

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Posted in case, foreclosure fraud, livinglies, MERS, mortgage electronic registration system, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, neil garfieldComments (1)


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