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rogergraham42 · Joined: 19 Oct 2009 Posts: 2 1.77 Dollars($)

I bought a house in 2005 with Countrywide dba Heritage Mortgage. I also have a second with them as well.

Now BOA has on their website a copy of the original note. I dont see a transfer from CW to BOA.

The county has a microfich record of my mortgage and deed. MERS is the mortagee of record for CW. There is no transfer to BOA.

BOA is my current loan servicer.

I had heard that MERS does not have authority to forclose. I also heard that if the note and the mortgage get seperated then the note holder is in a bind if the home owner decides not to pay.

Any insight?

jveenstra · Posted: Mon Oct 19, 2009 9:37 am Post subject: MERS

What you state is correct. The right of MERS not being able to foreclose has been recently upheld in one or two states, I think only one state--Kansas.
I can not tell you if that means every state will decide the same thing or if it will become a federal ruling that no states can foreclose.
This finding is a little recent and no one knows if will become widespread.

rogergraham42 · Joined: 19 Oct 2009 Posts: 2 1.77 Dollars($)

John, thanks for the reply. How do I find out if BOA which has a copy of my note on their mortgage website also has the mortgage? How do I find out if my mortgage/note was securitized in an MBS where someone else has it? Thanks

Posted: Mon Oct 19, 2009 10:44 am Post subject: MERS

In all liklehood the mortgage that you have is "owned" by Fannie Mae or Freddie Mac. So, technically, when you ask the question, "Who has my mortgage", or, is it in a pool of mortgages sold to some MBS, there are two parts to that question:
1. Who owns my mortgage?
2. Who has the servicing rights to my mortgage??

B of A is your current loan servicer, which means that Fannie Mae or Freddie Mac is paying them monthly to service your loan.
You can call B of A and ask them who "owns" your loan, Fannie Mae or Freddie Mac.

However, while interesting to know who owns the mortgage, the question really involves foreclosure.
As you note, there has been a legal ruling, in Kansas, that MERS could not foreclose on behalf of B of A due to some technicalities of transfer of servicing versus transfer of the mortgage itself and the transfer oif the right to foreclose.
Before the MERS court case, there were many attornies fighting foreclosure simply because no one could produce the ORIGINAL NOTE. That has nothing to do with MERS and was simply a way of preventing foreclosure because a requirement for foreclosure is that the ORIGINAL NOTE must be produced.
You can see copies on line at B of A, but that is a copy of the ORIGINAL and not the ORIGINAL itself.
Do you ask these questions because:
1. Just out of curiosity
2. Because you are in foreclosure
3. Because you have no need to foreclose but may try to not pay and not owe anything due to theses technicalities
My email address is: jveenstra@approvedfunding.com
If you send me your email address, I think I have the Kansas ruling about MERS someplace and can send it to you.

jveenstra · Posted: Mon Oct 19, 2009 10:44 am Post subject: MERS

That was me answering above without having logged in.

Posted: Mon Oct 19, 2009 12:08 pm Post subject:

John thanks for your information. I had thoughts about the "what if" I stopped paying. I am little pissed at BOA at the moment due to me having a commerical business line of credit with them since 2001 that I use reguarly. My current interest rate is about 7.5% and has been +/- that rate since then.

Recently, I got a "letter serving as an amendment" to our agreement effective December 1 that the new rate will be north of 11.5% based on market competativeness.

I think BOA is in deep trouble and they are doing everything they can to "incentivise" borrowers to reduce credit to improve BOA's outstanding credit liabitilities.

My point being that I feel like crafting a similar letter reducing my current 7.75% mortgage rate to say 4.5% being that is what is currently being offered in the market place and claim it as an "ammendment to our agreement" effective in a similar 45 days.

sorry to ramble

jveenstra · Posted: Mon Oct 19, 2009 1:11 pm Post subject:

I understand your thoughts and feelings.
We would never, ever recommend trying it and see if it works for you. I do not think you would be willing to take the chance either.
The legal course of action we discussed, may come in handy for someone in foreclosure. It would be a very risky business trying it on purpose.

I believe you are saying that your commercial line is going from 7.75% to 11.500% (not your residential mortgage). Commercial mortgages, whether a line or a first commercial mortgage are all in deep financial straits right now. There is no real secondary market for commercial mortgages like there is/are for residential loans. That means the commercial money comes from banks as lending from their own money and there are way too many banks in trouble doing that right now. Most refuse to lend anymore as opposed to staying in the business and raising the rates.

Guest

John, that's a HUGE jump to assume that Fannie/Freddie are now the owners of Roger's note - especially w/o seeing any kind of documentation.

Roger, if you've got access to the copy of the note that BoA has on their site (I'd love to see that site if you wouldn't mind sharing the URL to it, btw) you may be able to find a MERS Account number somewhere either on IT or on the C-Wide/Heritage docs - usually close to the top of the assignments. If you find that, you can potentially cross reference that # on MERS' site.

As far as the Landmark v. Kesler decision goes, Wikipedia appears to have an informative page up regarding it under " Landmark National Bank v. Kesler ". Plenty of copies of it and opinions floating around the internet at this point that should be easy to find.

You may also want to read up on Article 3 Uniform Commercial Code issues including "Where's the Note, Who's the Holder?"

jveenstra · Posted: Wed Oct 21, 2009 9:07 am Post subject: MERS

Whether or not the mortgage is "OWNED" by Fannie Mae or Freddie Mac is not a huge jump, it is an example that some entity "owns" the mortgage and the servicers of the mortgage have changed over time. If some other entity owns it, so be it.

It does not matter who "owns" the mortgage, the fact that there is a court case involving foreclosure not being permitted because of the way the MERS system functions is the heart of the question asked.

Posted: Fri Oct 23, 2009 7:15 am Post subject:

I have copies of the "note" that BOA has on the website in pdf. I also crossed referenced the MERS site and found the MIN number. The MIN number matches the mortgage on record at the County ( I have a copy of that too). The MERS site has BOA as the loan servicer.

I noticed something. I have a first and a second mortgage.

The first mortgage "note" has no clause stating that is it secured by a mortgage. The second mortgage "note" has the clause that it is secured by a "mortgage".

Is this significant?

Posted: Fri Oct 23, 2009 7:15 am Post subject:

thats me above "Roger" not logged in

jveenstra · Posted: Fri Oct 23, 2009 7:29 am Post subject: MERS

Roger, you did not know you have a second mortgage? You must be making two mortgage payments every month.

I do not think the wording in the NOTE is significant. Someone else may, but, I would not know why.

You have copies of your NOTE on-line. I am sure others have copies of the NOTE as well. One of the other tactics that lawyers are doing while representing clients in the process of foreclosure is to request the ORIGINAL NOTE. If that can not be produced, foreclosures are sometimes stopped. Copies of the NOTE do not meet the foreclosure process requirement. Just because you can see a copy does not mean anyone can produce the original. Someone probably can, however, you would never know until someone was asked to produce the original.

There appear to be a couple of tactics being used to stop foreclosures:

1. Request that the ORIGINAL NOTE be produced

2. MERS may not be able to foreclose on behalf of any lenders and the lenders can not foreclose if transfer of servicing done through MERS per your original question and the oen, recent court case

Posted: Fri Oct 23, 2009 7:37 am Post subject:

I knew I had two payments...in fact I am on the 26 payment plan for both. What was interesting though was that the first note has no clause saying it is secured by a mortgage whereas the second note does have the specific clause.

Posted: Fri Oct 23, 2009 7:41 am Post subject:

does this possibly mean that the "note" and the "mortgage" are seperate and that the note holder cannot forclose?

Posted: Fri Oct 23, 2009 7:41 am Post subject:

those two are me above (Roger)

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MERS, Countrywide, Heritage and BOA? Who has rights?