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Strategies & Market Trends : 2026 TeoTwawKi ... 2032 Darkest Interregnum -- Ignore unavailable to you. Want to Upgrade?

To: Hawkmoon who wrote (71170)	2/22/2011 10:04:23 PM
From: Ilaine	Read Replies (1) \| Respond to of 218682

Interestingly, at least to me, MERS hasn't been the foreclosing entity in any of the foreclosures I have observed locally, and I don't mean just the ones that involve my clients. I have observed thousands of foreclosures locally. MERS just a clearinghouse, operating a database, as far as I can tell. They don't loan the money, they are just agents for the ones who do. Each state has its own rules vis-a-vis foreclosure. There is no general law of foreclosure, no federal law of foreclosure. It's all a matter of state property law. In Virginia, there is no obligation for the first lender to record subsequent assignments. Virginia is also a non-judicial-foreclosure state, so no obligation to prove to a judge that one has the right to foreclose. Instead, Virginia requires the trustee on the deed of trust to initiate the foreclosure, and the new lender can appoint new trustees, as long as that lender owns at least 51% of the loan. Once the property has been sold to a bona fide purchaser after a properly conducted sale, the argument that the seller cannot prove that it actually owned the note is a loser, in Virginia. The former property owner can sue the trustee, or the putative lender, but cannot get back the property. And, speaking plainly, I have yet to see a case where the putative lender was not the actual lender, when all was said and done. Fighting a foreclosure that way is simply a game of "gotcha" -- the borrower did owe the money, and did default. Maybe the lender did not cross all "t's" and dot all "i's" but in Virginia that dog won't hunt once the sale is done. The big action in fighting foreclosure is in the states with judicial foreclosure laws, and I think maybe part of the fight has to do with individual judge's reactions to various procedures that they believe to violate the rules of evidence (which they probably do). In other words, in Virginia, the foreclosure may have been done by a foreclosure mill, and the way they handled the documents may stink to high heaven, but a default is a default. No free passes. Obviously it's different in, say, Florida.