Saturday, December 18, 2010

Cutting the Gordian Knot? - The Securitized Mortgage Bond Holder's Committee

One notion that I have run across recently is the notion of the appointment of a "mortgage bond holder's committee" under state law to represent the interests of the securitized interests in the mortgage back securities - as opposed to the interests of the mortgage servicer. Florida Statutes 69.021 specifically provides for the appointment of such a committee by the Court to represent the interests of a bond holder and the like. This statute provide that in a foreclosure action on a mortgage lien given to secure the issuance of bonds or obligations, the Court may appoint a committee to protect the "holders of bonds or units or certificate of beneficial interest."

As has been noted in the Congressional hearings, the interest of the mortgage servicer may not be in synch with the economic interests of the holders of the securitized interests in the mortgage. This may be an avenue to address the issue of the mortgage servicer arguably acting as an "empty creditor" as such concept is discussed in the works of legal scholars such as Professor Huh.

The appointment of a bond holders committee may bring to the negotiating table the actual party that bears the truer economic interest in the mortgage in distinction to the mortgage servicer whose economic interest is much narrower and possibly adverse to the holders of the mortgage back securities.
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