Sunday, March 16, 2008

Mortgagee Issues

indorsed in blank

ability to reestablish the note

whether note is lost

ability to file counterclaim

owner and holder

servicing agent
nominee

chain of ownership

whether negotiate instrument

require to present actual note

mers relationship with lenders, lenders retain note and right to collect, mers is nominee in administrative capacity only, question of representation of assignment to mers for valuable consideration as mers did not acquire

mers tries to be holder in due course to protect it from defects in transactions which preceded the acquisition

servicer is entity contractually charged with responsiblity of servicing the mortgage account and it doesnt' have any beneficial interest in the mortgage note. 323 so 2d 679, 390 f3d 522, 798 nys 2d 346

ucc - need to be owner or merely holder to foreclose, court held need to hold and own

produce orignal note or reestablish required to prevail in foreclosure 767 so2d 549, 596 so2d 526, 851 so2d 790, 862 so2d 793

duty of good faith and fair dealing, ocwen v moss, codilis 7th cir decision, 491 fd 3rd 638, 2007, 154 ne 2d 683, 604 ne 2d 536, 273 f3d 741, 970 f2d 273, exploitation of vulnerabilities of other party

partial assignment of rights created by mortgage contract are assigned to servicer,

hola enacted in 1933 intended to provide emergency relief with respect to home mortgage indebtedness when almost l/2 of all home loans in the country were in default

holder in due course status For the lenders, a possibly bigger threat on the horizon is that homeowners' lawyers will bust up the "holder in due course" doctrine that makes it easier for subsequent owners of an IOU to collect. This doctrine says that certain defenses the evictee can use against the original lender (such as predatory lending) cannot be used against an innocent purchaser of the mortgage. The rule is enshrined in many federal and state statutes, but a judge could nonetheless find a way to side with the homeowner, particularly if a loan is purchased after it goes into default.
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