By: Cynthia Kouril Wednesday September 30, 2009 5:00 pm
Mortgage – Rev Dan Catt
The Kansas Court of Appeals has issued a decision that is both stunning in its own right, but also demonstrates the trend in courts all over this nation which spells HUGE changes in the real estate and mortgage landscape. Realtors and banksters take note:
In a long and thoughtful decision in the case of Landmark Nat’l Bank v. Kessler the Kansas Court of Appeals has held that MERS (Mortgage Electronic Registration Systems, Inc.) does not have standing to bring foreclosure actions on behalf of the owners of mortgage notes archived in its system.
In the good old days, the legislatures of the various states set up a system for recording mortgages, usually in the County Clerk’s Office. Anyone wishing to know what obligations were imposed upon the real estate, like for instance a title search company, could go to the County Clerk’s Office and look up the block and lot number of the property and know who owned what, who owed what and to whom and whether there were any liens or mortgages on the property and who had what priority.
If you took out a mortgage from bank A, and A later resold your mortgage to refinance company B, well B would go to the County Clerk’s Office and record the transfer of the mortgage. Are you following me so far? B would also receive the original signature copy-the one where you wrote your name in blue ink-of the mortgage paperwork. In order to foreclose, the mortgagee/creditor is supposed to present the original documents in court as one way of proving that it is the true party to whom the debt is own and for whom the mortgage trust (the interest in the real estate) exists.
There are filing fees and costs to have a person go down to the County Clerk’s Office to record the mortgage transfer.
Some “genius” got the bright idea of forming a private entity to circumvent the government filing system; and “poof” MERS was born.
Banks pay a fee to “join” MERS. They then send all their mortgage records or at least their mortgage record information (MERS is very secretive about just how they do what they do) to MERS. MERS is supposed to keep track of the information about each mortgage. Then the mortgage gets split. The Promissory Note, that is the right to receive payments from the borrower, gets either sold or farmed out to a servicer who is paid “fees” to collect the payments and do other administrative tasks like manage any payments for taxes and the like out of escrow funds.
The mortgage deed or mortgage trust, that is the legal interest in the real estate that would normally give a lender the right to foreclose in the event of non-payment-may be sold to someone else. The payments themselves are “securitized” that is bundled with other mortgages and sold as Credit Backed Securities, which we now know as Wall Street Toxic Assets.
Up until recently when a homeowner fell behind in the mortgage payments and the it came time to foreclose, the servicer – who owned no interest whatsoever in the real estate – would appear as plaintiff and the lawyer would fill out an affidavit saying that the actual, blue ink signature, original copy of the mortgage documents were lost, or destroyed, but that the court should waive that requirement because MERS can appear on behalf of the owner of the right to foreclose and certify that the owner is somewhere in the MERS system. The transfers are not recorded in the County Clerk’s Office and all you will see is the transfer to MERS, if that, but not any subsequent transfers within MERS.
In the beginning, homeowners did not realize and often stipulated to waive presentation of the original documents. STUPID, STUPID, STUPID. Then a few wised up and found that their cases got postponed indefinitely. Not a “win” but at least they still had a roof over their heads for the time being.
Then banks got the bright idea of saying that MERS was the agent for the true owner. The Kansas decision says that won’t fly either.
BUT, now for the good part:
The court opined that
Indeed, an assignment of a mortgage without the debt transfers nothing. 55 Am. Jur. 2d, Mortgages § 1002. Thus, the mortgagee, who must have an interest in the debt, is the lender in a typical home mortgage.
Understand the possible implications of this. If other states take the same approach as Kansas, that means the splitting of the debt from the mortgage note effectively cancels the “mortgage interest” that is the power over the real property and converts the debt to a simple unsecured personal debt just on a promissory note. Which means they couldn’t take your house in foreclosure, though they can sue you personally on the debt, just like any other unsecured creditor can. I am assuming, without going to deep into it today, that as a personal debt, it may be dischargeable in bankruptcy. But we will have to wait for a few test cases to prove this.
What this also means is, that in the meantime, if you are trying to buy a house, you have to find out if your seller has a mortgage that may have been repackaged and lodged in MERS because you will have no way of knowing – since your title company cannot tell who actually might own the mortgage interest in your real estate if all the County Clerk’s records say is “MERS”.
This makes for a scary time for title insurers, I’m guessing.
There will be more on this case, I’m sure, it will just take some time to suss out all the ramifications.
Update: The NYTimes take on it.