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Improper recording of refinance note

Discussion in 'Stop Foreclosure and Tell Us Your Story' started by Someonestolemyusername, Dec 11, 2012.

  1. Someonestolemyusername

    Someonestolemyusername LoanSafe Member

    I am in the middle of walking away from my house in MD (recourse state) and missed my first payment on May 1 2012. I have a first note for 225k with Fannie Mae (serviced by wells Fargo) and a 90k Heloc through WF. The house is only worth 225k, so the second note is worthless. So far all I have received are Notices of Intent to Foreclose from WF and now one from Samuel White, representing Fannie Mae. I am in the middle of a divorce so a delay in the process would certainly be helpful.

    Here's where it gets interesting. I was looking through the on line title search for my state, and found that my wife was recorded on the note when I refied a couple of years ago. She should not have been; due to her credit problems mine has been the only name on and real estate transactions for the past 10 years. I looked at the actual scans and it looks like the document preparers listed her as co borrower, but she never signed anything of the documents - she couldn't have, she wasn't even in the room.

    So the question then becomes how does this affect the situation? I imagine it will cause some delay, since I assume the note will need to be straightened out in the computer system. But so far no one seems to be aware of it but me - I am the only person named on any of the papers. So do I get it corrected now or wait until an opportune time? And if the latter, when would that opportune time be?

  2. Evan Bedard

    Evan Bedard Call 1-800-779-4547 Loan Safe Mortgage

    That is strange, in order for her to be added to the mortgage she would of had to sign documents at closing for the refinance. Does her name appear on your monthly statements or any of the delinquency notices you have received?
  3. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    The note was not entitled to be recorded as all of the statements within the note are not true.

    This could be used when they start the judicial forclosure on you. Below is a time frame for your state. The recording is called an erroneous recording and technically is not valid. However; it is up to your court and they must decide as you are in default and some decide it did not hurt you, because you were already in default. I would go to an attorney and get some legal advice on this.

    Before the foreclosure is filed
    Before a foreclosure action is filed, you as the borrower and property owner should have received notice from the lender that there is a problem with your loan account and from the lender’s attorney that there is a default under the terms of the loan. Many mortgages require the lender to give notice of the default and of your right to remedy the default before filing foreclosure. Do not ignore or delay in responding to any written communication from your mortgage lender. The sooner you contact your lender, the greater the chance you can work out a solution to your situation.
    In Maryland, before the lender can file a foreclosure case against your property, the lender must:

    • Wait 90 days from the date that your loan is in default; and
    • Send you a Notice of Intent to Foreclose 45 days before the foreclosure case is filed.
      • The Notice of Intent to Foreclose will provide you with important information about why your loan is in default, the amount you owe to bring your loan current, the last payment received, contact information for the lender or secured party, for the mortgage servicer that collects your mortgage payments and for the department that can help you work out your default (the loss mitigation department).
    Filing the foreclosure case
    To begin a foreclosure case, the lender must file the foreclosure with the Circuit Court in the county in which the property is located. The lender must file the following documents with the court:

    • Statement of debt, under oath, which itemizes the entire amount the lender claims is due under the loan. This will usually include principal, interest, late charges, attorneys’ fees and all other charges that the borrower is responsible for under the mortgage;
    • Certification that the property owner is not a member of the military service. Under a federal law, commonly known as the Soldiers’ and Sailors’ Civil Relief Act, members of the military service have specific rights when lawsuits are brought against them (including foreclosure proceedings) since they may not be in the U.S. due to a military assignment and unable to adequately defend their interests;
        • If you are a member of the military service and find a property owned by you is the subject of a foreclosure action, you should ask an attorney what additional rights you may have as a result of this federal statute.
    • Statement, under oath, that indicates the date of default, the nature of the default and the date the Notice of Intent to Foreclose was sent;
    • A copy of the Notice of Intent to Foreclose;
    • Original or certified copy of the mortgage or deed of trust;
    • Copy of the debt instrument and an affidavit of ownership;
    • Original or certified copy of the assignment of the mortgage if applicable;
    • The mortgage lender and originator’s license number if applicable; and
    • A uniform Notice regarding the filing of the foreclosure action
    Serving the Property Owner
    The lender must personally serve you with all the papers filed when the case was docketed with the court. If the lender is unable to serve you after two good faith attempts on two separate days, the lender may file an affidavit with the court describing the attempts made to serve you and the lender may then serve you by sending you a copy of the court papers, by both certified and first class mail AND by posting the court papers on the property.
    Before a Foreclosure Sale can be held
    Before a foreclosure sale can be held, the lender must:

    • Wait 45 days from the time the defendant was served.
    • Publish a Notice of Sale for three successive weeks in a newspaper of general circulation in the county where the action is pending. The first advertisement should be published not less than 15 days prior to the date of sale and the last advertisement should be published not more than 7 days prior to the date of sale.
    • Send a notice of the date of sale to the homeowner by certified and first class mail of the time, place, and terms of the pending foreclosure sale. This notice must be sent no later than 10 days prior to the scheduled sale date. Failure to receive the notice or to sign for it will not stop the foreclosure.
    • Accept from the homeowner payment of the funds due to cure the default up to one business day before the sale. Payment of this amount which includes missed payments, late fees and costs will stop the foreclosure sale if it is made one business day before the sale.
      • Note: The secured party or the agent must provide, upon request, the amount necessary to cure the default and reinstate the loan and instructions for delivering the payment
    When you are facing foreclosure, it does not mean that all hope of saving your property is lost. If you have not spoken with your lender, contact your lender immediately and ask for the loss mitigation department of your lender to determine if your default can be cured under a plan.
    Before the sale occurs, you have the right to go before the court to prove that you did not default on your loan and
  4. Someonestolemyusername

    Someonestolemyusername LoanSafe Member

    There are 3 documents that are logged to her in the court. One mentions her name but she did not sign. Another mentions her name, but she only signed as a witness (it was one of those "close by mail" deals). The third is even more weird. It mentions both of our names, but the signature page is missing completely - neither my signature or hers appear. But the notary's seal is there, certifying that the above signed yada yada.

    Her name does not appear on any of the bank statements. Nor does it appear on other documents filed for that transaction.

    I don't think a court will just say "Oh he was defaulting anyway so let's just ignore it" because the house will also be wrapped up in divorce proceedings. It's sort of the opposite of the normal story where a couple splits and they are both on the loan/title and one defaults so the other is responsible. I am the only one on the loan and title (or am SUPPOSED to be), but per MD law the house is marital property regardless of how it is titled. So she owns half the house, but only my credit is getting slammed. :blink: MD law also says the mortgage is marital debt as well, but unless a court orders that her name be entered onto the title and note officially, I have all the burden. So her being recorded on some of these documents throws that all into a cocked hat. I think.

    Yeah, lawyer time.

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