In today's mortgage industry, the long-standing simple concept of the transfer of mortgages still exists. However, times have changed and the concept of transferring mortgages has become extremely complex.

Originally, when a Note and Mortgage were transferred to a new owner, the new owner would take possession of the original Note and Mortgage, and the original Note would be endorsed specifically to the new owner, much like a check. This process is reflected in Florida Statute § 673.2031(1) (2010) which states: "[a]n instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument." The Supreme Court of Florida held that a mortgage can be transferred without a written assignment simply by delivering the note with intent to assign it. Hence the well-known expression, the Mortgage follows the Note.

With the extreme demand of finance today, the simple concept of just endorsing and physically delivering the note and mortgage from one lender to another no longer exists. Today, the path most likely seen is:
➢ The Mortgage originator (Lender) originates hundreds of loans; THEN
➢ The Mortgage originator uses the borrowed money in order to create more mortgages; THEN
➢ When the Mortgage originator has a sizeable number of mortgages, the originator partners with one of the major investment banks to pool the mortgages and create securities of out them. This process is called "securitization."

Securitization occurs when the Mortgage originator assigns a pool of mortgages to a newly formed trust. The trust in turn issues securities for the mortgages, which are sold to investors. The trust becomes the owner of all the mortgages in the pool and the investors receive payments on the securities based upon collection of mortgage payments from the pool. Packaging mortgages as securities makes trading mortgages much easier, rather than trading each mortgage separately.

This brings me back to the transfer of individual mortgages. As described, mortgages and notes are assigned by the hundreds and even thousands; making it extremely alluring to skip entirely the preparation and recording of a proper chain of title for each mortgage in a pool. Since mortgages are transferred multiple times within the life of a loan, each transfer is generally only temporary. To streamline the process, transfer generally only takes the form of a pledge of the mortgages in bulk together with delivery of the original Note to the bank. The mortgages may be transferred in bulk, unrecorded, many times without ever physically moving the notes.

If you are facing foreclosure and believe your Note and Mortgage were securitized, contact a Florida Foreclosure Defense Lawyer or a Jacksonville Foreclosure Lawyer today.

Robo-signed documents used in foreclosure actions may leave lasting impacts in property records for decades. Buyers of foreclosed properties may face difficulties proving they hold clear title to the properties if their ownership is ever challenged. One of the biggest concerns stems from whether or not homeowners were given proper notice of foreclosure actions and/or of the foreclosure sales. If the notice requirements are not strictly complied with, the Court may not have jurisdiction over the case and the action could be ended.

Another concern is the long-lasting impact on the legal system. The production of fraudulent documents, meant to look genuine and fool the legal system, may be depriving people of some of their legal rights. If that is not enough, people are swearing they are vice presidents of companies they do not work for and signing affidavits stating they have personal knowledge over the subject matter when they do not. Citizens' confidence in the legal system has been and is currently being damaged. Foreclosing banks are being allowed to get by with sloppy paperwork and questionable signatures, but homeowners would never be able to do the same. Missed mortgage payments, do not give banks the right to enter a court of law and take someone's home with the use of false documents.

It is difficult to navigate a foreclosure alone. If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Defense Lawyer today for a complimentary consultation to discuss your foreclosure goals and potential foreclosure defenses.

Wells Fargo, which purchased Wachovia in 2008, has reached a settlement with investors which claimed Wachovia misled investors on the sale of securities between 2006 and 2008. Investors have accused Wachovia of intentionally misrepresenting the "quality of assets linked to the mortgage portfolio of Golden West Financial." The marketing material in question emanates from the marketing of 30 bond and security sales which totaled more than $35 billion, much of which came from "pick-a-pay" loans or option adjustable rate mortgages.

Mary Eshet, a spokesman for the bank, agreed to the $590 million settlement "in order to avoid the distraction, risk and expense of on-going litigation" and "does not constitute an admission of Wells Fargo of liability or any violation of law by Wachovia." Attorney's representing the investors stated "these settlements reflect an outstanding result for bond and preferred security purchases who were damaged as a result of false and misleading offering materials."

As many investors take to the courts to try to undo the damage done to them by the unscrupulous lending activities by many banks, where is the justice for the homeowners. If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Defense Lawyer to determine what foreclosure defenses may be available to you.

The Attorney General of Washington has been investigating unlawful business practices by foreclosure trustees for the past six months. The Attorney General's office discovered another problem that makes it much more difficult for homeowners to halt foreclosures. Homeowners are finding that it is difficult and, in some cases, impossible to contact the trustee. Washington law requires foreclosure trustees to maintain offices in the state and local phone numbers.

Attorney General Rob McKenna said, "Foreclosures run on strict timelines, and homeowners need a human who they can talk with face to face when there's a problem. They need an office where they can make last-minute payments or show documents that may prove reasons for stopping forced sales." McKenna also said, "some of the largest trustees are not in compliance".

One of the major questions that many people have been asking about the foreclosure mess is "Why did banks made millions of loans to people who could not afford their mortgage?" The banks were supposed to verify that applicants had the ability to repay back loans. This process is called underwriting. The banks stopped underwriting because they knew that the risk would be passed to investors through the securitization process.

The banks became sloppy in their paperwork and allowed fraud to run rampant. Banks hired untrained temps to replace retiring veterans to speed up the applicant review process, and took more copies, faxes, and phone calls instead of original documents. Banks today are even trying to foreclose on homes that should not be in foreclosure due to their bad record-keeping. Banks have tried to: foreclose on the same property; foreclose on homes bought in cash; and break into homes believed to be in foreclosure.

A large portion of the foreclosures in the courts today is caused by the bank's failure to properly underwrite the loans that were written. Instead of rejecting loans the banks knew certain consumers could not repay, banks passed on the risk to the investors. Even if some homeowners are to blame for taking on a mortgage they could not afford, banks still should not have been sloppy in their paperwork. Government tax dollars are bailing out the bank for this foreclosure mess!

If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Lawyer or a Florida Foreclosure Defense Lawyer today for your free foreclosure consultation.

In recent weeks a curious trend has been developing in several South Florida counties, lenders are voluntarily dropping their foreclosure suits instead to facing the homeowners in court. While this trend seems to be a good sign for those homeowners facing foreclosure, it sends a mixed bag of signals to all parties involved; are the banks just taking a break from the flawed suits with the intention of refilling them at a later date or have the banks and their lawyers simply thrown up their hands and said enough. At this point no one knows.

Lee County Clerk of Court Charlie Green says his office expects the banks to come back and refile the case, which can be expensive for the banks as filing fees in foreclosure cases can run into the thousands of dollars. Many of the foreclosures being dismissed contain mortgages which were bundled into mortgage-backed securities and sold to Wall Street investors. Many industry insiders point to the recent Massachusetts Supreme Court ruling that two foreclosures were invalid because the foreclosing banks could not prove they owned the mortgages because the mortgages were improperly transferred into mortgage-backed securities as a potential reason that banks are dismissing these foreclosure cases.

As a Jacksonville Foreclosure Defense Lawyer, I hope this trend continues and banks realize their cases are too flawed to be litigated. If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Lawyer or a Florida Foreclosure Lawyer today.

In yet another potential blow for mortgage giant Bank of America, it is now being sued by Allstate for $700 million in "significant losses" it incurred as a result of its investments in Countrywide mortgage backed securities. Allstate maintains that it was misled into believing that the Countrywide securities were safe and that the quality of the home loans that the securities were based on was high.

In its complaint, Allstate alleges that Countrywide "decided to boost its market share and ignore its own underwriting standards by approving any mortgage product that a competitor was willing to offer, in a proverbial race to the bottom." Allstate asserts that Countrywide then passes their risks onto those investors who purchased the securities. Bank of America representatives stated that "this unfortunately appears to be a situation where a sophisticated investor is looking for someone to blame for a downturn in the economy and losses on an investment it made."

Another day, another company going after Bank of America for the actions of Countrywide in creating mortgage backed securities. A Jacksonville Foreclosure Lawyer is sure this is just another step in a long line of problems Bank of America will face as a result of Countrywide's practices/ If you are facing a Florida Foreclosure Lawsuit, contact a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Lawyer today.

The latest numbers from the S&P/Case-Shiller home price index indicated that housing prices fell across 20 major metropolitan areas in October. Overall homes prices fell 1.3% which constitutes the third straight month-over-month drop. Economists were optimistic for an overall economic recovery in early 2010 as rising home prices indicated a recovery in the housing market but these latest numbers appear to be on path for double-dip. Now many experts are saying that the declines will continue until at least the spring of 2011.

One of the major contributors to this current drop in home prices is the glut of foreclosed homes already on the market which tend to drive down prices due to their often bottom line prices. Six major metro-areas; Atlanta, Miami, Seattle, Tampa, Charlotte, and Portland, saw their lowest home values since the housing market collapse began in 2007. Only four metros saw increases in home prices over 2009 levels; Los Angeles, San Diego, San Francisco, and Washington D.C. Many housing analysts are expecting markets in Florida, Arizona and Nevada, which have been most affected by the foreclosure crisis, to experience even more declines in home values.

Ally Financial Inc., formerly know as GMAC, just announced that it has reached a settlement agreement to resolve mortgage repurchase claims made by government owned mortgage giant Fannie Mae. Ally will pay $462 million to offset the $2929 billion in home loans it packaged and sold to Fannie Mae before June 30 of this year. When mortgage purchasers realize that loans are faulty and are not performing they invoke the contract clauses that force lenders to buy back those loans.

In July, the Federal Housing Finance Agency, which regulates Fannie Mae, subpoenaed documents concerning mortgage-backed securities which were purchased by Fannie Mae. As a result of this settlement those subpoenas will be withdrawn said the statement from Ally. Ally reached a similar deal with Freddie Mac in March.

This may be the first in a long line of banks that are forced to lay-out large sums of money for non-performing mortgages that they rolled into mortgage-backed securities and sold as Fannie has stepped up demands that banks buy-back these loans. If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Lawyer today.

The mortgage service industry has commenced an aggressive campaign to bolster the legality of securitized mortgages. When a mortgage is securitized it is bundled and sold to investors on the stock markets. Securitized mortgages are currently a grey area of the law because there is much confusion as to who is actually the holder of the mortgage with the right to foreclose on a homeowner in default.

The main focus of this increased lobbying effort in Washington is Mortgage Electronic Registration Systems (MERS). MERS is a private database used by almost every lender to map out the chain of ownership of mortgages as the mortgages are securitized and traded around the world. This allows the industry to buy and sell mortgages as often as they wish without having to spend the money to record the mortgages or file the necessary paper work.

However, MERS is not merely a mortgage tracking service. MERS is listed as the holder of the mortgage in many of the foreclosure cases currently pending in Florida and around the country. Recently, there have been many legal challenges to MERS serving in this capacity because MERS is only a database and, therefore, theoretically, cannot be the holder of the mortgage.

Lobbyists for the lending industry are seeking legislation that would validate the legality of MERS. If the lobbyists were successful, all of the suits in which MERS is a defendant would immediately become moot. This would effectively end the lawsuit pending in California against MERS in which the State of California is seeking between $60 billion and $120 billion from MERS for unpaid recording fees. This legislation would also prohibit any other state from filing a similar suit. Additionally, the lobbyists are also encouraging a proposal that would make MERS a national registry to track the transfer of mortgages nationally.

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According to data just released by financial ratings agency Weiss Ratings, the nations three largest mortgage lenders are all holding massive amounts mortgages that have either been foreclosed or are in the foreclosure process. JP Morgan Chase, Bank of America and Wells Fargo all hold over $20 billion worth homes that have been foreclosed or in foreclosure! JP Morgan Chase has the largest dollar total of troubled loans with $21.7 billion followed by Wells Fargo, $20.5 billion, and Bank of America with $20.3 billion.

The study also found that for "every dollar these banks held in mortgages in foreclosure, there were an additional $2 in loan in the pipeline that were 30 days or more past due. With regard to mortgages 30 or more days past due Bank of America is on top with $54.6 billion in mortgages 30 or more days past due, Wells Fargo holds $48 billion and JP Morgan Chase is third with $43.4 billion.

These statistics are just a snapshot of how large the national foreclosure problem is a it puts a real dollar amount on how much money the banks stand to lose if something isn't done to solve the foreclosure problem. If you mortgage lender is suing you for foreclosure, contact a Jacksonville Foreclosure Defense Lawyer or an Florida Foreclosure Defense Lawyer today to explore your foreclosure prevention options.

MERS is a holding company with the sole purpose of keeping track of mortgages that are securitized and sold. MERS does not have a board of directors and is not capitalized. This unusual structure makes it difficult for a plaintiff to sue MERS.

Many class actions against MERS have recently been filed across the country. The biggest lawsuit currently facing MERS was filed by the State of California, claiming that MERS owes the state between $60-$120 billion in unpaid land recording fees. The results of this lawsuit will be felt around the country. If California is successful with its action you can bet that many other states will follow suit.

STOP THE PRESS

Without title insurance, the home is not able to be sold except to a cash buyer who would not be able to sell it later where financing would be required.

This means the foreclosed home is essentially worthless.

If you recently purchased a foreclosed home, you should check your title policy for exclusions which could limit your ability to sell your home in the future. Contact a Jacksonville Foreclosure Defense Lawyer to discuss your situation.

One of the hottest topics in Florida Foreclosure Defense is the securitization of mortgages, the trusts they are held in and the documents that govern them, namely "pooling and servicing agreements" or "PSA's". One of the major questions in this area is why are the pooling and servicing agreements so important?

First, the pooling and servicing agreement is the formal document that specifically states all of the parties to the securitization process including the trustee and mortgage servicer. The pooling and servicing agreement will also detail the requirements that must be met before a loan can be pledged to the trust or assigned from one party to another This is extremely important information to have to ensure that the party bringing the Florida Foreclosure Lawsuit is the actually party who has the right to do so.

Second, in many cases the pooling and servicing agreement will often contain the foreclosure avoidance measures and loss mitigation procedures, including short sale authorizations or deed-in-lieu of foreclosure, that the mortgage servicer must follow before a Florida Foreclosure Lawsuit can be brought. It also gives the detailed procedures of how the mortgage servicer may foreclose on the property including who must give authorization before a foreclosure can be brought and whose name the foreclosure must be brought in.

Understanding the intricacies and complexities of the mortgage securitization process, specifically pooling and servicing agreement, are just one of the roles that a Florida Foreclosure Lawyer fills. A Jacksonville Foreclosure Defense Lawyer is trained to identify the defenses that may be able to save your home from a Florida Foreclosure Lawsuit.