Title problems?

[urbanrealtor]

[quote=bubba99]Yes, I think this is a real problem. For centuries, all property records were kept at the local county recorders office. With MERS, that all ended. The notion of a Trust Deed that gave title to a property or (loan on a property) is forever clouded. In the “old days” the paper deed was kept at the bank and returned to the homeowner when the note was paid. The county had all the appropriate records recorded in their “books”

But that “paper” never existed for many of the note resale’s under MERS. There very well could be multiple people who believe they own a note on a particular property – MERS is the only record. The original trust deed lost forever.

The county would charge a recording fee each time a title was changed or encumbered. But not under MERS, the funds were never paid the changes never record, but the fore closers want the counties to enforce their implied claim anyhow.

I suppose that title companies could just insure the hell out of a sale until the claims forced another AIG type of bailout We are in for a long ride.[/quote]

Okay you are conflating 2 or more things here.

1)
The deed defines who owns a property.
It is almost always recorded (though it can be enforceable without recordation).

2)
A note is a private contract between a lender and a borrower.
It is not generally recorded and may be re-sold.

3):
A trust deed defines the consequences for violating the note.
Technically, it creates a trust where the borrower is a trustor, who entrust a trustee (of the note holder’s choosing), to keep a copy of the trust deed.
If certain circumstances (defined in the trust deed) are met (like the borrower stops paying for a year) that trustee is entrusted to a) hold an auction for the property and b) turn the property over to the beneficiary of the trust (the lender) if nobody buys the property at the auction.
It is recorded but only kicks in if certain conditions are met.

None of these things has ever changed.

What has changed is that the note (the private lending contracts) have been securitized and re-sold and such (sometimes without a proper trail). The problem with MERS is that it hires itself out as a database and clearinghouse for notes with itself listed as nominee for all the banks.
Therefore if Wells sells a note to ABC fund (both of whom have MERS as their nominee), then it is really sold from MERS to MERS and the transaction only exists in their records.
Also, the physical notes (which is supposed to be the final record of the ownership of debt) get all screwed up because of sloppy acquisitions and record keeping.

Here is an example of the selling of these notes:
My client took out a loan with an outfit called 123Loan.com (or something equally retarded).
This lender (which consisted of 10 employees and 1 small office) was a correspondent lender for First Franklin (that is where a small lender underwrites loans with an agreement from a big bank to buy them as soon as they are originated–generally based on the big bank’s underwriting standards).
First Franklin was swallowed by Merrill Lynch.
Merrill Lynch was crammed down the throat of BofA.
Therefore, when I was negotiating the short sale, I was dealing with a BofA negotiator.

For an example of bad record keeping for physical notes, here is a good write up that the late Tanta did in 2007.
http://www.calculatedriskblog.com/2007/11/deutsche-bank-fc-problems-and-revenge.html

The paragraph starting with “well, there’s a big problem” is the one that you need most.

[NotCranky]

[quote=bubba99]I suppose that title companies could just insure the hell out of a sale until the claims forced another AIG type of bailout We are in for a long ride.[/quote]

Don’t give them any ideas. It wouldn’t surprise me one bit if the title companies were already looking for ways to get a windfall helping to put “humpty dumpty” back together. They don’t even really have to be needed to pull it off. They just have to appear to be needed, which is pretty much what they do anyway.

The shell game (also known as Thimblerig, Three shells and a pea, the old army game) is portrayed as a gambling game, but in reality, when a wager for money is made, it is a confidence trick used to perpetrate fraud. In confidence trick slang, this famous swindle is referred to as a short-con because it is quick and easy to pull off.

[NotCranky]

[quote=bubba99]I suppose that title companies could just insure the hell out of a sale until the claims forced another AIG type of bailout We are in for a long ride.[/quote]

Don’t give them any ideas. It wouldn’t surprise me one bit if the title companies were already looking for ways to get a windfall helping to put “humpty dumpty” back together. They don’t even really have to be needed to pull it off. They just have to appear to be needed, which is pretty much what they do anyway.

The shell game (also known as Thimblerig, Three shells and a pea, the old army game) is portrayed as a gambling game, but in reality, when a wager for money is made, it is a confidence trick used to perpetrate fraud. In confidence trick slang, this famous swindle is referred to as a short-con because it is quick and easy to pull off.

[NotCranky]

[quote=bubba99]I suppose that title companies could just insure the hell out of a sale until the claims forced another AIG type of bailout We are in for a long ride.[/quote]

Don’t give them any ideas. It wouldn’t surprise me one bit if the title companies were already looking for ways to get a windfall helping to put “humpty dumpty” back together. They don’t even really have to be needed to pull it off. They just have to appear to be needed, which is pretty much what they do anyway.

The shell game (also known as Thimblerig, Three shells and a pea, the old army game) is portrayed as a gambling game, but in reality, when a wager for money is made, it is a confidence trick used to perpetrate fraud. In confidence trick slang, this famous swindle is referred to as a short-con because it is quick and easy to pull off.

[NotCranky]

[quote=bubba99]I suppose that title companies could just insure the hell out of a sale until the claims forced another AIG type of bailout We are in for a long ride.[/quote]

Don’t give them any ideas. It wouldn’t surprise me one bit if the title companies were already looking for ways to get a windfall helping to put “humpty dumpty” back together. They don’t even really have to be needed to pull it off. They just have to appear to be needed, which is pretty much what they do anyway.

The shell game (also known as Thimblerig, Three shells and a pea, the old army game) is portrayed as a gambling game, but in reality, when a wager for money is made, it is a confidence trick used to perpetrate fraud. In confidence trick slang, this famous swindle is referred to as a short-con because it is quick and easy to pull off.

[NotCranky]

[quote=bubba99]I suppose that title companies could just insure the hell out of a sale until the claims forced another AIG type of bailout We are in for a long ride.[/quote]

Don’t give them any ideas. It wouldn’t surprise me one bit if the title companies were already looking for ways to get a windfall helping to put “humpty dumpty” back together. They don’t even really have to be needed to pull it off. They just have to appear to be needed, which is pretty much what they do anyway.

The shell game (also known as Thimblerig, Three shells and a pea, the old army game) is portrayed as a gambling game, but in reality, when a wager for money is made, it is a confidence trick used to perpetrate fraud. In confidence trick slang, this famous swindle is referred to as a short-con because it is quick and easy to pull off.

[urbanrealtor]

[quote=walterwhite]I don’t understand your explanation and I am an attorney. Give me the non-basic one. I don’t see how a servicer’s right to foreclose is different than servicer’s right to shortsell. In both cases, the buyer wants to know the right party is selling 9or foreclosing). How are these two different. Why is it just a “remote” possibility? it sounds at least in the news like this remote possibility is coming soon…[/quote]

The servicer’s contract to service the loan is generally never in question. That servicing contract is generally part of the sale of that note.
So Aurora lends the money and Fannie Mae buys the note.
The borrower defaults.
Based on Fannie Mae’s direction, Aurora either approves a short sale or directs the trustee to foreclose.
In this sense you are correct.
Permission to sell could be given inaccurately just as a trustee’s deed could be filed inaccurately.
However, in a short sale (or a regular sale), the person with a deeded ownership interest is the one selling with the permission of servicer.
However, the difference is this:
In borrower-to-buyer sales the question is of legitimate permission.
In lender-to-buyer sales the question is if the seller ever actually owned it.
That is a order of magnitude in risk difference.
That is why several title insurers stopped covering certain foreclosures.
By “remote” I was referring to whether end-users in borrower-to-buyer sales would have to deal with this.
Currently it has not been asserted that a buyer of an REO will now have to give it up.
I doubt that will change.

I think it more likely that the banks will be forced to:
-give money to people where their paperwork was inadequate
-may have to try to repurchase the houses they sold (probably at a hefty premium)
-find new housing for illegally foreclosed borrowers
-remove the foreclosure from credit bureaus

Since this will happen only on a small percentage of REO’s (which is a significantly higher risk) I stand by what I said that buyers or sellers on non-REO sales are unlikely to ever have to deal with this.

Think about it this way.
It is very easy for me to demand that a lender show me the note.
It is hard (every time) for them to produce it.
It is easy for me to state who my loan servicer is (hey look at the statement).
It is easy for me to get a payoff.
It is very hard for another lender to challenge that (they would have to produce a note–which is hard).
If they are so far outside the loop on that I never knew who they were, then they are not going to notice that I have sold the property until after closing.
Even if this unlikely set of circumstances were to occur, it would now fall to title insurance to settle it.
That would leave me (the seller) and Bob (the buyer) not having to deal with it.
Ergo: the possibility of the end user dealing with this is remote.
It is yet more remote that any deal would be undone.

[urbanrealtor]

[quote=walterwhite]I don’t understand your explanation and I am an attorney. Give me the non-basic one. I don’t see how a servicer’s right to foreclose is different than servicer’s right to shortsell. In both cases, the buyer wants to know the right party is selling 9or foreclosing). How are these two different. Why is it just a “remote” possibility? it sounds at least in the news like this remote possibility is coming soon…[/quote]

The servicer’s contract to service the loan is generally never in question. That servicing contract is generally part of the sale of that note.
So Aurora lends the money and Fannie Mae buys the note.
The borrower defaults.
Based on Fannie Mae’s direction, Aurora either approves a short sale or directs the trustee to foreclose.
In this sense you are correct.
Permission to sell could be given inaccurately just as a trustee’s deed could be filed inaccurately.
However, in a short sale (or a regular sale), the person with a deeded ownership interest is the one selling with the permission of servicer.
However, the difference is this:
In borrower-to-buyer sales the question is of legitimate permission.
In lender-to-buyer sales the question is if the seller ever actually owned it.
That is a order of magnitude in risk difference.
That is why several title insurers stopped covering certain foreclosures.
By “remote” I was referring to whether end-users in borrower-to-buyer sales would have to deal with this.
Currently it has not been asserted that a buyer of an REO will now have to give it up.
I doubt that will change.

I think it more likely that the banks will be forced to:
-give money to people where their paperwork was inadequate
-may have to try to repurchase the houses they sold (probably at a hefty premium)
-find new housing for illegally foreclosed borrowers
-remove the foreclosure from credit bureaus

Since this will happen only on a small percentage of REO’s (which is a significantly higher risk) I stand by what I said that buyers or sellers on non-REO sales are unlikely to ever have to deal with this.

Think about it this way.
It is very easy for me to demand that a lender show me the note.
It is hard (every time) for them to produce it.
It is easy for me to state who my loan servicer is (hey look at the statement).
It is easy for me to get a payoff.
It is very hard for another lender to challenge that (they would have to produce a note–which is hard).
If they are so far outside the loop on that I never knew who they were, then they are not going to notice that I have sold the property until after closing.
Even if this unlikely set of circumstances were to occur, it would now fall to title insurance to settle it.
That would leave me (the seller) and Bob (the buyer) not having to deal with it.
Ergo: the possibility of the end user dealing with this is remote.
It is yet more remote that any deal would be undone.

[urbanrealtor]

[quote=walterwhite]I don’t understand your explanation and I am an attorney. Give me the non-basic one. I don’t see how a servicer’s right to foreclose is different than servicer’s right to shortsell. In both cases, the buyer wants to know the right party is selling 9or foreclosing). How are these two different. Why is it just a “remote” possibility? it sounds at least in the news like this remote possibility is coming soon…[/quote]

The servicer’s contract to service the loan is generally never in question. That servicing contract is generally part of the sale of that note.
So Aurora lends the money and Fannie Mae buys the note.
The borrower defaults.
Based on Fannie Mae’s direction, Aurora either approves a short sale or directs the trustee to foreclose.
In this sense you are correct.
Permission to sell could be given inaccurately just as a trustee’s deed could be filed inaccurately.
However, in a short sale (or a regular sale), the person with a deeded ownership interest is the one selling with the permission of servicer.
However, the difference is this:
In borrower-to-buyer sales the question is of legitimate permission.
In lender-to-buyer sales the question is if the seller ever actually owned it.
That is a order of magnitude in risk difference.
That is why several title insurers stopped covering certain foreclosures.
By “remote” I was referring to whether end-users in borrower-to-buyer sales would have to deal with this.
Currently it has not been asserted that a buyer of an REO will now have to give it up.
I doubt that will change.

I think it more likely that the banks will be forced to:
-give money to people where their paperwork was inadequate
-may have to try to repurchase the houses they sold (probably at a hefty premium)
-find new housing for illegally foreclosed borrowers
-remove the foreclosure from credit bureaus

Since this will happen only on a small percentage of REO’s (which is a significantly higher risk) I stand by what I said that buyers or sellers on non-REO sales are unlikely to ever have to deal with this.

Think about it this way.
It is very easy for me to demand that a lender show me the note.
It is hard (every time) for them to produce it.
It is easy for me to state who my loan servicer is (hey look at the statement).
It is easy for me to get a payoff.
It is very hard for another lender to challenge that (they would have to produce a note–which is hard).
If they are so far outside the loop on that I never knew who they were, then they are not going to notice that I have sold the property until after closing.
Even if this unlikely set of circumstances were to occur, it would now fall to title insurance to settle it.
That would leave me (the seller) and Bob (the buyer) not having to deal with it.
Ergo: the possibility of the end user dealing with this is remote.
It is yet more remote that any deal would be undone.

[urbanrealtor]

[quote=walterwhite]I don’t understand your explanation and I am an attorney. Give me the non-basic one. I don’t see how a servicer’s right to foreclose is different than servicer’s right to shortsell. In both cases, the buyer wants to know the right party is selling 9or foreclosing). How are these two different. Why is it just a “remote” possibility? it sounds at least in the news like this remote possibility is coming soon…[/quote]

The servicer’s contract to service the loan is generally never in question. That servicing contract is generally part of the sale of that note.
So Aurora lends the money and Fannie Mae buys the note.
The borrower defaults.
Based on Fannie Mae’s direction, Aurora either approves a short sale or directs the trustee to foreclose.
In this sense you are correct.
Permission to sell could be given inaccurately just as a trustee’s deed could be filed inaccurately.
However, in a short sale (or a regular sale), the person with a deeded ownership interest is the one selling with the permission of servicer.
However, the difference is this:
In borrower-to-buyer sales the question is of legitimate permission.
In lender-to-buyer sales the question is if the seller ever actually owned it.
That is a order of magnitude in risk difference.
That is why several title insurers stopped covering certain foreclosures.
By “remote” I was referring to whether end-users in borrower-to-buyer sales would have to deal with this.
Currently it has not been asserted that a buyer of an REO will now have to give it up.
I doubt that will change.

I think it more likely that the banks will be forced to:
-give money to people where their paperwork was inadequate
-may have to try to repurchase the houses they sold (probably at a hefty premium)
-find new housing for illegally foreclosed borrowers
-remove the foreclosure from credit bureaus

Since this will happen only on a small percentage of REO’s (which is a significantly higher risk) I stand by what I said that buyers or sellers on non-REO sales are unlikely to ever have to deal with this.

Think about it this way.
It is very easy for me to demand that a lender show me the note.
It is hard (every time) for them to produce it.
It is easy for me to state who my loan servicer is (hey look at the statement).
It is easy for me to get a payoff.
It is very hard for another lender to challenge that (they would have to produce a note–which is hard).
If they are so far outside the loop on that I never knew who they were, then they are not going to notice that I have sold the property until after closing.
Even if this unlikely set of circumstances were to occur, it would now fall to title insurance to settle it.
That would leave me (the seller) and Bob (the buyer) not having to deal with it.
Ergo: the possibility of the end user dealing with this is remote.
It is yet more remote that any deal would be undone.

[urbanrealtor]

[quote=walterwhite]I don’t understand your explanation and I am an attorney. Give me the non-basic one. I don’t see how a servicer’s right to foreclose is different than servicer’s right to shortsell. In both cases, the buyer wants to know the right party is selling 9or foreclosing). How are these two different. Why is it just a “remote” possibility? it sounds at least in the news like this remote possibility is coming soon…[/quote]

The servicer’s contract to service the loan is generally never in question. That servicing contract is generally part of the sale of that note.
So Aurora lends the money and Fannie Mae buys the note.
The borrower defaults.
Based on Fannie Mae’s direction, Aurora either approves a short sale or directs the trustee to foreclose.
In this sense you are correct.
Permission to sell could be given inaccurately just as a trustee’s deed could be filed inaccurately.
However, in a short sale (or a regular sale), the person with a deeded ownership interest is the one selling with the permission of servicer.
However, the difference is this:
In borrower-to-buyer sales the question is of legitimate permission.
In lender-to-buyer sales the question is if the seller ever actually owned it.
That is a order of magnitude in risk difference.
That is why several title insurers stopped covering certain foreclosures.
By “remote” I was referring to whether end-users in borrower-to-buyer sales would have to deal with this.
Currently it has not been asserted that a buyer of an REO will now have to give it up.
I doubt that will change.

I think it more likely that the banks will be forced to:
-give money to people where their paperwork was inadequate
-may have to try to repurchase the houses they sold (probably at a hefty premium)
-find new housing for illegally foreclosed borrowers
-remove the foreclosure from credit bureaus

Since this will happen only on a small percentage of REO’s (which is a significantly higher risk) I stand by what I said that buyers or sellers on non-REO sales are unlikely to ever have to deal with this.

Think about it this way.
It is very easy for me to demand that a lender show me the note.
It is hard (every time) for them to produce it.
It is easy for me to state who my loan servicer is (hey look at the statement).
It is easy for me to get a payoff.
It is very hard for another lender to challenge that (they would have to produce a note–which is hard).
If they are so far outside the loop on that I never knew who they were, then they are not going to notice that I have sold the property until after closing.
Even if this unlikely set of circumstances were to occur, it would now fall to title insurance to settle it.
That would leave me (the seller) and Bob (the buyer) not having to deal with it.
Ergo: the possibility of the end user dealing with this is remote.
It is yet more remote that any deal would be undone.

[bearishgurl]

Agree with everything you’re saying here, UR, but I wanted to add that there WERE banks that disclosed to borrowers within their loan docs (usually with ARM products) that they kept 100% of these loans within their portfolios.

These were typically the former “giant thrifts,” (the Downey and World Savings and now Chase’s of the world [who swallowed up WAMU who swallowed up GW]). All these notes would still be presumably kept somewhere “in house.”

The BIG QUESTION here is, “How many of these loans are actually active (and still performing) today??” Mine is, and I’m confident my bank could find my note if they had to, in a pinch :=).

These existing “direct” loans may now amount to a “drop in the bucket” compared to all that has “changed hands” through “MERS,” some no doubt multiple times :=(.

[bearishgurl]

Agree with everything you’re saying here, UR, but I wanted to add that there WERE banks that disclosed to borrowers within their loan docs (usually with ARM products) that they kept 100% of these loans within their portfolios.

These were typically the former “giant thrifts,” (the Downey and World Savings and now Chase’s of the world [who swallowed up WAMU who swallowed up GW]). All these notes would still be presumably kept somewhere “in house.”

The BIG QUESTION here is, “How many of these loans are actually active (and still performing) today??” Mine is, and I’m confident my bank could find my note if they had to, in a pinch :=).

These existing “direct” loans may now amount to a “drop in the bucket” compared to all that has “changed hands” through “MERS,” some no doubt multiple times :=(.

[bearishgurl]

Agree with everything you’re saying here, UR, but I wanted to add that there WERE banks that disclosed to borrowers within their loan docs (usually with ARM products) that they kept 100% of these loans within their portfolios.

These were typically the former “giant thrifts,” (the Downey and World Savings and now Chase’s of the world [who swallowed up WAMU who swallowed up GW]). All these notes would still be presumably kept somewhere “in house.”

The BIG QUESTION here is, “How many of these loans are actually active (and still performing) today??” Mine is, and I’m confident my bank could find my note if they had to, in a pinch :=).

These existing “direct” loans may now amount to a “drop in the bucket” compared to all that has “changed hands” through “MERS,” some no doubt multiple times :=(.

[bearishgurl]

Agree with everything you’re saying here, UR, but I wanted to add that there WERE banks that disclosed to borrowers within their loan docs (usually with ARM products) that they kept 100% of these loans within their portfolios.

These were typically the former “giant thrifts,” (the Downey and World Savings and now Chase’s of the world [who swallowed up WAMU who swallowed up GW]). All these notes would still be presumably kept somewhere “in house.”

The BIG QUESTION here is, “How many of these loans are actually active (and still performing) today??” Mine is, and I’m confident my bank could find my note if they had to, in a pinch :=).

These existing “direct” loans may now amount to a “drop in the bucket” compared to all that has “changed hands” through “MERS,” some no doubt multiple times :=(.

[Author]

Posts