Today most home owners have an underwater mortgage. If that is your situation and you’re facing foreclosure, who do you really owe for the unpaid balance?
Let’s start at the beginning.
Where Did You Get Your Mortgage Loan?
When you purchased your home, you went to a mortgage lender to get the bulk of the “money” needed to buy it. In most cases the place you went was a mortgage broker or a bank.
If you went to a mortgage broker, they didn’t make the loan. They only work with many lenders to supposedly get you the best loan for your situation. So they are in essence just an extension of the banking system. The mortgage brokers are independent agents who get paid a fee for getting business for the banks. You know, those extra points that they charge.
The Mortgage Loan Documents
Then you had to sign a whole stack of documents that the lender’s representative placed in front of you. In that stack there are two important ones that cover your mortgage loan.
The first is the mortgage note, and the second is the mortgage security instrument. The second document is a contract saying that if you don’t pay your mortgage note in accordance with the terms, the holder of that mortgage note has the right to take your home as payment for the mortgage loan.
This is an important point to remember. It’s the holder of the mortgage note that has the right to come and take your home away to get payment for the note.
Your Mortgage Note Was Sold
Then the whole process behind closed doors starts. In most cases your mortgage note and security instrument were recorded in the Mortgage Electronic Registration System, MERS. At this point your mortgage note became just a number in the system.
Your mortgage note became a security instrument with value just like stocks on the stock exchange. It was bundled with many other mortgage notes and sold to investors who invest in mortgage-backed securities. It became part of a mortgage-backed security.
The originating bank sold your mortgage note and got paid full value for your mortgage note. You got that? The bank got paid. If the bank got paid, how could you still owe them? But now that you’re in an underwater mortgage situation, someone wants to get paid.
Who Gets Your Monthly Payments?
Where do you send your monthly mortgage payments? In most cases it’s not the bank that made the mortgage loan to you in the first place. But, and this is a big BUT, the bank you make your payments to is not the one holding your mortgage note. They only service your mortgage note. They get paid servicing fees to record your payments and keep track of the status of your payments.
Who Owns Your Underwater Mortgage?
So who actually owns your mortgage note? It may be hard to tell, because it probably has changed hands many times. Only MERS has the latest information. But there is a way to find out.
According to Resources for Investigating Investor Restrictions on Mortgage Modifications you can find out who owns your underwater mortgage. It will probably be a mortgage-backed security that now owns your note.
They say the way to do it is to “send the servicer a “qualified written request” under the Real Estate Settlement Procedures Act, which requires the servicer to acknowledge the request within 20 days and to try to answer the request within 60 days.”
When Facing Foreclosure, Who Has The Right To Foreclose?
So now that you’re facing foreclosure, does the bank who is just the loan servicer have the right to foreclose and take your home in payment for your mortgage note? They didn’t make the mortgage loan. They don’t hold the mortgage note. Your original bank already got paid. So who do you owe? Maybe you owe the investor group that bought the mortgage-backed security. But are they the ones who are foreclosing?
To see how this works to your advantage, maybe you could use our Mortgage Debt Reset Program. If you’re facing foreclosure and want to find out, click Find Out More About Our Mortgage Debt Reset Program and sign up to receive our free information package. Your underwater mortgage could be a thing of the past, as well as your foreclosure.
Sphere: Related Content