Wachovia issues "new owner" letter but says no recording what does this mean?

[TNT101]

California Attorneys

Have a new twist from Wachovia. Just received a letter date August 18th 2009. The title is Re: Notice of Transfer of Mortgage.

Now I have been trying to get a mortgage Modification for 3 months, I live in Californai. They came back with a mortgage modification with $78K principle reduction from $970K to $892K and change my variable rate loan to a 38% DTI for year 1 (which is interest only at the 38%)and keep increasing the interest only payments up yearly for 4 more years by $200 per monthly increase yearly (by changing the interest rate each year). Then after year 5 they increase payment to $1,000 more per month (they now include payment of the principle and give 35 years to pay it off). They know full well that it would be impossible for me to pay this payment starting year 6 unless I can increase my wages $2,000 per month divided by 38% ( a whopping $5,000 gross monthly increase in 5 years). But they say there is no negotiation or discussion; sign or they will foreclose. I called the Executive team but they just pushed me back to the Loss Mitigation department since there was a MAP offer. Under duress since I am 3 months behind in payments and over the HAMP $729K mortgage maximum for a HAMP loan. I sign the document but tell them the "MAP offer" is so bad that I will probably not be able to pay it as this is the same type of loan that I had before, it was a loan from World Savings, and Wachovia took it over. I will be where I am now in 3 years. They also say I must send a check for the first payment, new loan takes effect 9-15-2009. I tell them I will not have the money to make the first payment until Sept 1st 2009 at the earliest. They say no problem just send the letter signed.

So when I get this new letter. They are admitting they were not the mortgage owner while negotiating the mortgage modification. But they did not disclose this to me. Here is part of their letter " Due to the nature of the previous transfer, a transfer of owenership of the debt was not recorded and is not required to effect the transfer back to Wachovia."

What the hell does this mean? I thought ownership only occurs when a loan is recorded? Does this mean I should not make the MAP payment and fight for them to prove they own the property?

Have you seen this starting to happen in the industry. I have a payment to make to finalize the mortgage modification by August 31st 2009. I am not sure I should do this. It sounds like they were never the owner and could not have foreclosed on the home. Not sure they can do it now since they say their is no recording of ownership to Wachovia.

Can you please suggest a next step for me? I don't have much time before the payment is due or what will happen if I don't pay it since by 9-15 I will start the 4th month late. I am not sure if I should pursue legal help with this new information since I don't understand if my home is has no real owner or not. Are they buying mortgage back securities with TARP money and claiming they own the property again? Or do they make a offer to homeowners and then negotiate from the note holder a lower price and buy it at a profit from them. Never telling the old note holder that they have negotiated a modified mortgage. Bank makes out like a bandit and no one knows what they are doing. Or Is this a new legal trick to enable foreclosure by giving legal notice to me they are the rightful owner if I don't contest it then it stands after some time period?

Need some guideance on next steps, I am confused on the right path to take. I don't want to do this mortgage modification if they don't really own the property.

Thanks,

tnt101

[Nathan Fransen Esq.]

TNT101 - great questions and sorry to hear about the challenges you are having with Wachovia. I really can't give specific advice here in this forum but i will address a few points that may be of interest to you and others.

In CA a mortgage loan is really a 3 party transaction. You (borrower), lender (beneficiary) and trustee (usually a title company, but not always). The purpose of this is largely to allow for non-judicial foreclosures. When you sign your Deed of Trust, you are agreeing that if a default occurs on the Note, the Trustee may proceed to foreclosure. The lender can sell their rights under this contract to anyone they chose, as can the Trustee. Believe it or not, you also can transfer your rights through an assumption, but it usually requires consent of the lender.

If the Trustee changes, then a notice must be served to you. Believe it or not, in CA this can be done after a foreclosure process is started.

As to the lenders rights to transfer, this is made extra confusing due to MERS. Often times lenders name MERS as the beneficiary which is basically a repository for these Notes. There is a great deal of debate on the legitimacy of this organization, and it is well beyond the scope of this post. That being said, many of the "lost-note"claims and flavors there of (who owns the note, etc.) which have been made famous through online chat forums, are often severely misunderstood. There are many valid claims against lenders, but it is important to understand that the law does provide them legal rights as well. In general, if a borrower does not pay on their mortgage, the lender can eventually take their home. This may sound straight forward, but i speak with homeowners reguarly who strongly disagree with this precept.

My suggestion regarding any potential claims is as follows: If you really want to know if you have a legally viable claim, talk to a Plaintiffs attorney, practicing in this area that has litigated these cases. They will be uniquely qualified to analyze whether or not a claim exists. It may cost you a few hundred bucks for their time, but it may be worth it.

Sorry for the generalities, but hope it is somewhat helpful.

Best Regards,

[TNT101]

Originally Posted by Nathan Fransen Esq.

TNT101 - great questions and sorry to hear about the challenges you are having with Wachovia. I really can't give specific advice here in this forum but i will address a few points that may be of interest to you and others.

In CA a mortgage loan is really a 3 party transaction. You (borrower), lender (beneficiary) and trustee (usually a title company, but not always). The purpose of this is largely to allow for non-judicial foreclosures. When you sign your Deed of Trust, you are agreeing that if a default occurs on the Note, the Trustee may proceed to foreclosure. The lender can sell their rights under this contract to anyone they chose, as can the Trustee. Believe it or not, you also can transfer your rights through an assumption, but it usually requires consent of the lender.

If the Trustee changes, then a notice must be served to you. Believe it or not, in CA this can be done after a foreclosure process is started.

As to the lenders rights to transfer, this is made extra confusing due to MERS. Often times lenders name MERS as the beneficiary which is basically a repository for these Notes. There is a great deal of debate on the legitimacy of this organization, and it is well beyond the scope of this post. That being said, many of the "lost-note"claims and flavors there of (who owns the note, etc.) which have been made famous through online chat forums, are often severely misunderstood. There are many valid claims against lenders, but it is important to understand that the law does provide them legal rights as well. In general, if a borrower does not pay on their mortgage, the lender can eventually take their home. This may sound straight forward, but i speak with homeowners reguarly who strongly disagree with this precept.

My suggestion regarding any potential claims is as follows: If you really want to know if you have a legally viable claim, talk to a Plaintiffs attorney, practicing in this area that has litigated these cases. They will be uniquely qualified to analyze whether or not a claim exists. It may cost you a few hundred bucks for their time, but it may be worth it.

Sorry for the generalities, but hope it is somewhat helpful.

Best Regards,

Nathan,

If I understand this, since the trustee is Wachovia, since they took over World Savings, who was the trustee and possibly was still the lender. It is interesting that the changed the COS from World Savings to Wachovia later. Which has stayed extra ordinarily high with other interest rates so low. Still over 3.5% COS.

This gives Wachovia the right to foreclose for non-payment. So how is there a case to stop this action? Sounds like the fact that the note might have been collaterialized and sold to investors does not over ride the trustee to foreclose. Is this unique to California law? or does this apply to all states?

Have I understood this right? If so, then there is work to find out if there is another legally viable claim? I don't know if there is enough time to do that with non-payment at almost 90 days? Sounds like I would need to request and then have legal review of documents to find if any other action was a violation in the past loan and mortgage activity. Can foreclosure be stopped while this is being done?

TNT101

[TNT101]

Originally Posted by Nathan Fransen Esq.

TNT101 - great questions and sorry to hear about the challenges you are having with Wachovia. I really can't give specific advice here in this forum but i will address a few points that may be of interest to you and others.

In CA a mortgage loan is really a 3 party transaction. You (borrower), lender (beneficiary) and trustee (usually a title company, but not always). The purpose of this is largely to allow for non-judicial foreclosures. When you sign your Deed of Trust, you are agreeing that if a default occurs on the Note, the Trustee may proceed to foreclosure. The lender can sell their rights under this contract to anyone they chose, as can the Trustee. Believe it or not, you also can transfer your rights through an assumption, but it usually requires consent of the lender.

If the Trustee changes, then a notice must be served to you. Believe it or not, in CA this can be done after a foreclosure process is started.

As to the lenders rights to transfer, this is made extra confusing due to MERS. Often times lenders name MERS as the beneficiary which is basically a repository for these Notes. There is a great deal of debate on the legitimacy of this organization, and it is well beyond the scope of this post. That being said, many of the "lost-note"claims and flavors there of (who owns the note, etc.) which have been made famous through online chat forums, are often severely misunderstood. There are many valid claims against lenders, but it is important to understand that the law does provide them legal rights as well. In general, if a borrower does not pay on their mortgage, the lender can eventually take their home. This may sound straight forward, but i speak with homeowners reguarly who strongly disagree with this precept.

My suggestion regarding any potential claims is as follows: If you really want to know if you have a legally viable claim, talk to a Plaintiffs attorney, practicing in this area that has litigated these cases. They will be uniquely qualified to analyze whether or not a claim exists. It may cost you a few hundred bucks for their time, but it may be worth it.

Sorry for the generalities, but hope it is somewhat helpful.

Best Regards,

Nathan

I will need a EAST BAY (East of San Francisco) located lawyer who can do a forensic audit on my loan (Refi with World Savings) that was aquired by Wachovia, now being aquired by Wells Fargo. I am in 3 years + 3 months on this mortgage and have signed a mortgage modification document that is just as bad as the loan I have now, just starts year 1 all over like the last bad loan. Year 1 interest only payments on first mortgage is 37.7% and it gets worse every year after. $2,000 more monthly payments by year 6 for the next 34 years (P+I), DTI is well over 60% by year 6.

I will likely want to go to court over this mess. So I need an attorney that has experience in this matter and is a real pitbull.

Any suggestions.

TNT101