First line of foreclosure defense — are you really the Plaintiff?

If you live in Jacksonville, Florida and qualify for Legal Aid — you’re in luck! You just might have access to one of the best foreclosure defense attorneys in the United States — April Charney.

Forbes.com has an article on foreclosure defense that features April prominently. The dateline on it is June 18, 07; but I don’t know if it will be in a paper edition or not. The gist of the article is that April has successfully defended foreclosure actions where the plaintiff can’t prove that it owns the note and mortgage.

Yep, these things have been sold and repackaged so many times that in some areas the papertrail can no longer be followed. Consider if you will, the effect of this on our real property laws which haven’t changed much since the 14th Century.

Of course, sometimes it is more complicated than that. Sometimes, you can trace the ownership history — except it can’t happen. In one case described in the article the note and mortgage in question were bought by a securitized trust after the note was in default — and that is in violation of the trust terms.

Sometimes, a review of the title history reveals that the note and mortgage weren’t actually acquired by the Plaintiff until after it filed the foreclosure petition. Could that lawyer not spell Rule 11?

Of course, don’t expect to find this kind of title history in anyplace as archaic as the County Clerk’s office. Frequently, the assignments aren’t actually recorded. If all these assignments were recorded, they would have to pay filing fees on all of them. So, against whom are these assignments effective — if they aren’t perfected?

I’ll be going out of state for CLE on mortgage issues in the fall. It ought’a be fun.

Elaine

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Categories: foreclosure, Mortgages and Foreclosure | Leave a comment

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