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Thomas A. Cox, Esq. Memorandum To ULC Study Committee on Mortgage Foreclosure Procedures

Thomas A. Cox, Esq. Memorandum To ULC Study Committee on Mortgage Foreclosure Procedures


EXCERPT:

A. Deception of courts, mediators and homeowners as to identity of owners of loans being foreclosed.

1. Deception of homeowners, courts and mediators by the GSEs and their servicers, as to the true identity of the parties owning mortgage loans being foreclosed upon, has resulted in:

a. Inability of mediators to know what loan modification standards apply to any given loan coming before a mediator.

b. Inability of homeowners and their lawyers to know the identity of the party owning the loans and having the ultimate authority to modify the loans;

c. Wasted time for lawyers for homeowners and courts in pre-­trial discovery disputes relating to determination of the identity of the true owners of mortgage loans being foreclosed upon.

2. The MERS System has been and continues to be a source of problems for courts, mediators and homeowners in determining the identity of the parties who own loans in foreclosure. 5It was only under public pressure that MERS began to identify the owners of the mortgage loans registered on its system. 6Even now, disclosure of “investor identity” information on the MERS system is voluntary with those investors and thus is often unavailable, even to homeowners trying to determine the identities of the owners of their loans. Further, when a mortgage is registered on the MERS System, that system never identifies the actual trust that owns the loan. Contrary to the MERS claims that it accurately tracks the ownership of mortgage loans registered on its system, MERS does not obtain, record or track the identity of the trusts that own the loans registered on its system, The lack of this information makes it impossible to locate the pertinent pooling and servicing agreement which is needed to determine, among other things, whether there are investor restrictions which limit the ability of a servicer to modify loans in that trust.

[…]

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