Admitted also was that neither of the Lender, Servicer, or mortgagee was ever the owner or holder of the Note (except the Servicer claims it became owner when the mortgagee conveyed the Note after foreclosure complaint).
Somethings missing here. The terms are not really correct. You generally have the Originator, Servicer, Lender and Borrower. You also don’t have ‘foreclosure complaint’. You’ll have Notice of Default and Notice of Trustee sale.
Originator – the company/person who wrote the original loan package. They fronted the initial money for the loan. They then package a bunch of loans together and sell them off (recouping the money they originally fronted plus securitization fees). Depending upon how structured, the originator may contract with a servicer (ie. MERS) as a part of packaging the loans. Servicer – the company that collects the mortgage payments on behalf of the final Lender and tends to be the one who holds the mortgages in trust(important term.. also why it is called Trustee Sale) for those Lenders. Being the Trustee also means that they have Power of Attorney with respect to servicing the mortgages. It does not need to be ‘conveyed after foreclosure complaint’ because they have POA. Lender – This is effectively the most recent person who has bought into the loan package. The servicer makes sure these people get their payments in return for a % of the ‘passthrough’ aka servicing fee.
The Borrower has affirmative defenses, one is the fact that the Servicer was not the true party in interest (not the owner of the debt) at foreclosure filing, and FDCPA violations before foreclosure was filed.
Wrong.. remember, the Servicer holds the notes in trust.. they are the Trustee and have the Power of Attorney with respect to the notes. All they need to prove is their Power of Attorney with respect to the notes and the terms of the original notes.
The Servicer claims that because it obtained servicing before default, it had the right to foreclose, and was not subject to the FDCPA.
Correct. They have POA. All they need to prove is that they have POA with respect to the note in question and the terms of the original notes.
Neither of the Lender, mortgagee, or Servicer will disclose the identity of the Note Holder or owner of the debt to the borrower nor will they notify the Note Holder of the default and f/c complaint.
You mean the Originator and Servicer will not disclose the Lender.. that is true.. the note is held in Trust.
The Judge is relying on the recorded assignment as proof of Servicer’s ownership of the Note.
This happened in Illinois. As a matter of fact, it happens every day in Illinois.
What is wrong with all of this, and what recourse might an Illinois borrower have?
It happens with all mortgages, nothing is wrong with it and if the money is owed.. it is owed. All that the Servicer has to prove is that the money is owed by the Borrower and that the Servicer has POA on the Trust that contains the mortgage (recorded assignment).
What it looks like, is that there is a misunderstanding of a recent court case where a person was able to stop foreclosure on a MERS held mortgage. It was not successful because the Lender could not be disclosed. It was successful because the Servicer could not prove the loan (that the money was owed). They were not able to prove the trace from the origination to the servicer holding the loan. The person asked the servicer to prove that they owed the money.. to the effect of ‘where is my signature on the loan papers’??
