G&G Associates Tax & Financial Consulting
Foreclosure Defense: Miami Woman Settles on Lost Note — Gets Money AND Title
Posted on July 28, 2008 by livinglies
Validating the strategies we have been promoting here, the latest is a Miami woman with a $100,000 mortgage. After years of struggle in foreclosure, Legal Aid got her a settlement: No mortgage, no note and a reverse mortgage, which means they gave her money to at least pay off the balance. Why? Because if they don’t have the note, they don’t have a case. Georgia recently enacted a law, like New Jersey, providing for proof of ownership of the note and mortgage prior to instituting foreclosure sale.
By GRETCHEN MORGENSON
Published: July 27, 2008
MAMIE RUTH PALMER isn’t a celebrity. People magazine doesn’t chronicle her every move. The paparazzi don’t wait for a photo op outside of the modest Atlanta home where she has lived since 1987. In some mortgage circles, Ms. Palmer, a 74-year-old former housekeeper, has earned her moment of fame. After enduring six years in foreclosure hell, almost losing her home twice, Ms. Palmer has escaped intact.
Last month she received a settlement from the Bank of New York, the trustee for a vast pool of mortgages that included hers. Under the terms of the deal, the bank reduced Ms. Palmer’s loan balance to $59,000 from about $100,000 and has agreed to accept the proceeds of a reverse mortgage in full satisfaction of her obligation.
The settlement also eliminated about $12,000 in foreclosure fees added to her debt and called for the installation of central air-conditioning in Ms. Palmer’s home.
Roughly $10,000 in legal fees billed over five years by Ms. Palmer’s lawyer, Howard D. Rothbloom, will be covered by payments she has made toward her mortgage while she was battling foreclosure.
“I feel good,” Ms. Palmer said last week. “It’s been a long time coming.” To celebrate, she said, she is going to Florida to fish with her nephew.
Ms. Palmer’s case is hardly unique. It’s just one of a swelling number that revolve around the thorny issue of who owns the note on a home when it’s forced into foreclosure proceedings.
In the seemingly long-ago era when banks held on to the mortgage loans they made, this was a straightforward matter. But today, amid the freewheeling packaging of mortgage loans into securities that are sold off to investors, it’s much less clear who controls the note — all of which promises to cause banks enormous legal and financial headaches as foreclosures mount.
The added twist is that some judges are taking the borrowers’ side in foreclosure disputes, precisely because of murkiness surrounding notes.
In 2002, Ms. Palmer filed for bankruptcy protection to protect her home from a quick sale on the courthouse steps. She continued to make mortgage payments, to the bankruptcy court.
Mr. Rothbloom took her case in 2003, suing the Bank of New York for levying fees on Ms. Palmer that had not been authorized by the bankruptcy court. The note securing the property was assigned to Bank of New York in September 2002, two months after it had begun foreclosure proceedings against Ms. Palmer. As a result, Mr. Rothbloom maintained, the bank had no standing to foreclose.
The two sides battled for five years, until last month.
“The Ms. Palmers of the world can’t afford to resolve these types of disputes,” Mr. Rothbloom said. “So they usually wind up losing their homes.”
Bank of New York declined to comment on the settlement.
The problems associated with banks that begin foreclosure proceedings when they do not have proper legal standing are now looming larger in the mortgage meltdown. Loans were heaped into trusts with little documentation of ownership or proper loan assignments — it was all about volume and the fees that came with it — and now that sloppiness is hurting both lenders and borrowers.
Mr. Rothbloom said he had another case in which the lender’s representative has been unable to prove ownership for two and a half years.
Meanwhile, consumer lawyers fear that borrowers are being pushed out of their homes by companies that have no right to do so. Such a prospect is particularly worrisome for residents in states that allow lenders to foreclose without court supervision, known as nonjudicial foreclosure states.
Georgia is one; its borrowers can lose their homes on the courthouse steps less than a month after foreclosure notices have been posted.
To try to protect its borrowers, Georgia just instituted a law requiring that lenders moving to foreclose on a borrower must file proof in county records that they own the underlying property before the home goes to foreclosure sale.
“We believe that many of these companies can’t find the assignments,” said William J. Brennan Jr., director of the Home Defense Program of the Atlanta Legal Aid Society. “If they can never prove ownership, then they can never foreclose.”
link to article: http://livinglies.wordpress.com/2008/07/28/foreclosure-defense-miami-woman-settles-on-lost-note-gets-money-and-title/
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