Who has the legal right to foreclose on my home?

[GabiS]

My loan was originated with ABC Conduit they are out of business. I now have AHMSI as my servicer. My trustee sales notice says JP Morgan Chase Bank solely as trustee for Structured Asset Mortgage Investments II Inc Mortgage Pass Through Certificates, Series 2006-AR5.

WHO has the right to foreclose on my home?

I asked for a copy of the note and they sent me a xeroxed copy of the Mortgage Note and Deed of Trust which I can tell are copies of images they have been sent electronically not the actual note.

Since I live in Arizona does it matter who has the note since we are a Trustee Sale state?

[acesfull]

Hi GabiS

Good question. You may need to do some research on the foreclosure statues for your state.

Here are some statues to search.

Ariz.Rev.Stat. 33-741 to 33-749. 33-801 to 33-821, 12-1281 to 12-1283, 12-1566.

It is my belief that only the holder of the original note can attempt to foreclose. A savvy attorney would be able to help you with your defense.

A land mark case was just decided in Kansas City, where the defendant homeowner, won a foreclosure case when the plantiff failed to produce the original note. See National city vs kesler.
Read all you can and do some research.
All the best.

Acesfull

[davephx]

But its in all likelihood a non judicial foreclosure so it is not even in the Court.

If you can find a reasonable way to make that argument when I've been told by a major law firm it is almost impossible to get before a Court with the case please let us all know.

[davephx]

I just checked in Kansas ALL foreclosure are judicial. They are all before the Courts.

This is the opposite of AZ where we have no opportunity to argue in Court without HUGE legal fees and many years to wait.

I would love to be proven wrong!!

[davephx]

Originally Posted by GabiS

Since I live in Arizona does it matter who has the note since we are a Trustee Sale state?

Sadly no. We have no access to the Courts to bring up the issue other than paying huge legal fees and a very long period of time, during which the foreclosure sale will probably not be delayed per a major law firm I had a phone discussion with.

Not the answer I was looking for !

[scarletofyre]

Here is a link to an article which explains how to do the "produce the note" on your own behalf...How to use “Produce the Note” in Non-judicial Foreclosure States | The Consumer Warning Network

[davephx]

Originally Posted by scarletofyre

Here is a link to an article which explains how to do the "produce the note" on your own behalf...How to use “Produce the Note” in Non-judicial Foreclosure States | The Consumer Warning Network

Excellent article and exactly what I discussed doing with an attorney.

Others should try contacting an attorney and see what they say. Mine said extremely expensive, could take years in Court and probably would not stop the sale. I'd love for that advice to be wrong!!! That was in AZ

[ftm2hannah]

I live in a non-judicial state (CA) and am wondering the same thing. I just got papers informing me that my lender, Chase, has assigned a "substitution of trustee" (someone who put a lien on our house for non payment of 10K. Our house is worth somewhere in the neighborhood of 350K). Is that legal? I'm wondering when I will get my NTS too.

Thanks

[caldwellb02]

So if I get a Foreclosure notice in the months ahead, will the notice be from the Lender or the Servicer? If it's from the servicer, do they need to mention the lender's name? How about NOD's - do they just come from the servicer?

[davephx]

IN my case the foreclosure notice came from a Trustee - CS Trust with the same address in MO as CitiMortgage

[caldwellb02]

So I'm being dense here. Is Citi your servicer or your lender?

[ftm2hannah]

I was wrong about my substitute of trustee. It is someone called NDEx West. Who is that?

[davephx]

Originally Posted by caldwellb02

So I'm being dense here. Is Citi your servicer or your lender?

ME?

Citi servicer Fannie Mae owner.

[GabiS]

Thank you everyone for the replies! davephx what attorney did you contact in Phoenix?

[caldwellb02]

Gotta tell you this. I just saw the Michael Moore movie and in one section he was dealing with a foreclosure and people just taking back the house. Anyway, he had brief moments where he put the foreclosure notice on the screen and I swear I saw MERS there. Now if that is true and if that homeowner had been on the MERS list..... That's why we need to keep fighting and researching. We maybe can save the next one of you (I'm sadly not on the MERS list) who is foreclosed on and MERS is named...

[davephx]

Originally Posted by GabiS

Thank you everyone for the replies! davephx what attorney did you contact in Phoenix?

Davis Miles in Mesa they also have a radio show every Thurs 1pm 1510 KFNN often about mortgages. But when I've head it was very basis. They "only" charge about $2000 to do mods. So they want you to believe only they can save you.

But the lady attorney (Tamera? not sure without searching notes) sounded very knowledgeable far more than the lack of depth at least on a few radio shows I hear (there doesn't seem to be an archive on radio site).

She is the one telling me totally impractical to get into Court or try for a Temporary injunction which some lawyer blogs say can be done to stop the sale or at least get issues before the Court. But according to her in AZ it is very expensive and she strongly discouraged the idea.

She also pointed out the problem with HAMP that there is no enforcement provisions to force the servicers to follow the directives from Treasury and Fannie.

She didn't than try and sell me their mod program which actually gave her more creditability.