Balancing the Scales of Justice for Pro Se Homeowners

Who owns my Note?

Posted by on Mar 10, 2012

For many Californians’ getting the opportunity to review the “original Note” is almost impossible.  Note (no pun intended) I said almost.  If you are being dual tracked by your bank (trying to get a modification while they are simultaneously foreclosing); or have been led down the modification path only to learn that you were a) denied by the investor; and b) are now in arrears because the monthly trial mod payment was less than the regular payment then now may be a good time to consider taking legal action against the servicer and its partners in crime.  One of the first steps you need to take is to get a copy of the Note and find out who is claiming to be the current owner.

                Many people are under the mistaken belief that in order for the servicer to foreclose they have to produce the Note.  The servicer has to be collecting payments for the entity that owns the Note but they are under no obligation, in non judicial states, to produce the Note to foreclose.  That is a BIG difference.  If you want to see if they have the Note, and what the current state the Note is in, there there are two statutes (laws) that will assist you.  The first law, California Civil Code of Procedure § 2943 (5)(b)(1) mandates:

 A beneficiary, or his or her authorized agent, shall, within 21 days of the receipt of a written demand by an entitled person or his or her authorized agent, prepare and deliver to the person demanding it a true, correct, and complete copy of the note or other evidence of indebtedness with any modification thereto, and a beneficiary statement.

This code says they only have to give you a COPY of the Note. Which may or may not be a copy of its current state (i.e. the indorsement on the Note).   You can write your servicer and demand a copy of your Note, and cite to the above California Civil Code.  When you receive the copy it should tell you it is a “true, correct and complete” copy of the Note.   As to what the “modification” thereto is, one would think any modification to the Note whether that be any riders changing an aspect of the Note and an indorsement – which can change the Note from a Made to Order Note into a bearer instrument (which is anoter area of argument) would be included in the copy – but these Servicers are reluctant to produce this information and many times it is from the Title copy when the Note was first signed. 

To find out who the current OWNER is (and you can include this with the letter requesting a copy of the Note) cite to the new revision to TILA enacted in 2009.  Under the Truth in Lending Act, or TILA, the government has stepped in and told servicers that upon written request they must provide general investor information to the borrower.  Write a letter to your servicer, citing 15 U.S.C. § 1641(f)(2), a provision of TILA, and request that the servicer provide the name, address and telephone number of the owner of the mortgage. They are required by TILA to respond to you within 10 business days.  If they choose not to reply to this request, 15 U.S.C. § 1640(a), coupled with the Helping Families Save Their Homes Act of 2009, allows for recovery which can include actual and statutory damages, costs, and attorney’s fees.

 There are other ways to find out who is claiming to own your Note if MERS is on your Deed of Trust and/or you have a Fannie Mae/Freddie Mac loan.

 

MERS – if MERS is involved in your Note and/or Deed of Trust/Mortgage, then your documents will have a MERS ID number.  Go to www.mers.com  and enter either your MERS ID number, or property address.  MERS will then provide the name of your Servicer and the investor who owns your Note. 

Fannie Mae/Freddie Mac:  Go to the following sites and enter your information to source the owner of your Note.

http://www.fanniemae.com/loanlookup/

https://ww3.freddiemac.com/corporate/

Finally, one other place you can look is at the County Recorder’s office.  See if any assignments of Deed of Trust have been recorded since you originally recorded your Deed of Trust.  That assignment will show who is claiming ownership of your Note.  (And just because they are claiming ownership doesn’t mean that they do actually have any ownership rights).

                These are a few ways to find out who is claiming ownership of your Note.  And this is the first step in stopping a wrongful foreclosure. So the sooner you request this information the quicker you can start planning your legal strategy to stop the fraudclosure.

 

KEEP UP THE FIGHT!

Simonee

3 Comments

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  1. Duane

    I cannot find an email address to report that my order did complete, here is the error:

    The secure download manager ran into a problem that it couldn’t handle, and is unable to process your download request.

    The problem was due to the following reason:
    The download link (see browser address bar) has been used too many times. If you think this reason is in error, please contact the site administrator.

    Can you help me get this report…thanks duane

  2. Simonee

    Our sincerest apologies Duane, not sure why the link did not work. We have sent the manual to you directly, please let me know if you did not receive it or are unable to open it. Please email simonee@infotofightforeclosure.com

  3. Felipe gonzalez

    hi im one of victims of baait and swihtc fronm agre of 2100 to 3200dlls then went loan mod while payments sold the house in sept 27 2010 im been firing all this time last two judges dint help and this last wiht all the proof of fraud have unawful detainer trial in july 9 2012 is thereany other help i trie request the note last they say is private fanie mae and chasewhat else can i do thanks

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