62 Million Homeowners May Be Foreclosure Proof
The first court decision came a couple of years ago in from nothing less then the Kansas Supreme Court. That was followed by a smattering of other decisions around the nation. Still, these decisions were generally seen as quirky and probably would not be confirmed -- until now.
According to attorney Ellen Brown, author of "Web of Debt", a California bankruptcy court has followed what are now being called "landmark cases in other jurisdictions" in ruling that as many as 62 million mortgages may not be foreclosed on.
The problem is that at the height of the real estate bubble, mortgages were sliced and diced into investment products -- securities -- that changed hands frequently. As a convenience for the mortgage industry, many of these mortgages were recorded electronically by a system called MERS (Mortgage Electronic Registration System).
At issue was when Citibank tried to foreclose on a property in California, the homeowner's defense was that the actual deed was held by MERS and yet since MERS could not offer a homeowner signed documentation to a mortgage agreement, they could not prove ownership and since they couldn't prove ownership, the Deed of Trust could not be transferred and Citibank's note was therefore uncollectible.
The California bankruptcy court concluded:
"Since the claimant, Citibank, has not established that it is the owner of the promissory note secured by the trust deed, Citibank is unable to assert a claim for payment in this case."
California attorneys are already accepting the significance. As one put it:
"This opinion… serves as a legal basis to challenge any foreclosure in California based on a MERS assignment… and should be sufficient for a borrower to not only obtain a TRO (temporary restraining order) against a Trustee's Sale, but also a Preliminary Injunction barring any sale … based on a MERS assignment."
While not binding in other states, this decision is consistent with other findings in Idaho and Nevada Bankruptcy Courts on this very issue. Lawyers across the country are now filing something called "quiet title" actions to prevent foreclosure.
The result could force the biggest banks into bankruptcy because having millions of homeowners get title to their homes with no further mortgage payment would decimate the asset portfolio. As pointed out in a San Francisco Chronicle article in 2007:
"The loans at issue dwarf the capital available at the largest U.S. banks combined, and investor lawsuits would raise stunning liability sufficient to cause even the largest U.S. banks to fail…."
