By Peter Miller (LoanSafe.org) – For all the headlines given to foreclosure affidavits and robo-signing virtually no one has mentioned the real point, the idea that the affidavits themselves may not prove loan ownership regardless of how they were signed.
For several years foreclosure defense attorneys have been telling anyone who would listen that the entire foreclosure process is flawed because you have to own a mortgage note before there can be a foreclose — and several courts have found that the affidavits used in foreclosures do not prove ownership.
Go back to 2007. Federal judge Christopher Boyko of the U.S. District Court in Ohio — a 2005 appointee of George W. Bush — was asked to foreclose on 14 homeowners.
In a lot of courts the borrowers and their families would instantly be on the street but Judge Boyko said before there could be a foreclosure the lenders would first have to show that they owned the delinquent loans and therefore had the right to appear in court.
The problem was that public records showed the loans were owned by the local banks that originated the mortgages, not the big banks before the court. So, to foreclose, the big banks would first have to show ownership of the notes. How? By providing evidence of ownership such as a sworn affidavit.
Judge Boyko looked at the affidavits and made this ruling:
“The Court’s Amended General Order No. 2006-16 requires Plaintiff to submit an affidavit along with the Complaint, which identifies Plaintiff either as the original mortgage holder, or as an assignee, trustee or successor-in-interest. Once again, the affidavits submitted in all these cases recite the averment that Plaintiff is the owner of the Note and Mortgage, without any mention of an assignment or trust or successor interest. Consequently, the very filings and submissions of the Plaintiff create a conflict. In every instance, then, Plaintiff has not satisfied its burden of demonstrating standing at the time of the filing of the Complaint.”