Mortgage Woes – What’s in a Name?
By J. Russell Collins, Attorney
nce upon a time Henry Homeowner bought a home loan from Juliet Capulet, President of Capulet Mortgage Brokers, Inc. Juliet was very young and did not pay much attention to details. When she signed Mr. Homeowner’s loan, she signed it as President of “Capulet Mortgage Bankers, Inc.” “Brokers, Bankers—what’s in a name?” Juliet said to herself, and she proceeded to endorse over 300 more home loans, signing as President of “Capulet Mortgage Bankers, Inc.” Then Juliet sold Mr. Homeowner’s loan to her boyfriend, Romeo, of Montague Mortgage. Now Romeo was very much in love with Juliet, and he let their romance get in the way of good due diligence. He did not properly check the loan he was purchasing from Juliet, and did not notice the name discrepancy. Meanwhile, Mr. Henry Homeowner lost his job and got behind on his mortgage payments. Never was a story of more woe than high unemployment and a housing market low. However, when Romeo went to foreclose on Mr. Homeowner, he found he could not. The transfer of Mr. Henry Homeowner’s loan was invalid since Juliet had endorsed the note from
a company where she was neither president nor even worked. Of course the incident might have been dismissed as clerical error...except Juliet had signed over 300 home loans as President of “Capulet Mortgage Bankers, Inc.” (not as “Capulet Mortgage Brokers, Inc.”). Difficult to argue as a typo when it happens over 300 times! (How could she not recognize that she was signing the wrong company name that often?) How indeed. Romeo sorted it out eventually and got proper authority to foreclose so he could re-file the lawsuit against Mr. Henry Homeowner...but by that time, Mr. Homeowner had a mortgage modification and lived more happily ever after than he would have if “FORECLOSURE” had been stamped on his credit report. Words mean things...so do names when it comes to proper authority to foreclose. While seemingly starcrossed mistakes like this can be an
advantage in a foreclosure defense, often the best result is to fix it faster by negotiating a mortgage modification or repayment plan (or maybe even a Chapter 13 Bankruptcy). Sometimes it takes legal counsel to open a dialogue to a resolution for the homeowner, or at least to examine all the legal choices.
The court system is still dealing with work done by robo-signers, improper mortgage and note transfers, and things as simple as an incorrect lender name on the initial loan. These technical errors in a foreclosure defense can give the homeowner opportunity to better prepare themselves for foreclosure, but the errors are not going to stop the foreclosure. With the stock market linked to the real estate market, public policy does not support a homeowner receiving a
free house. In the end of a foreclosure defense you will lose. Eventually the loan servicer will be able to overcome the mistakes and will foreclose. Despite the many mortgages that were handled improperly from their initiation to their transfer, and even their foreclosure, the plague of Florida home foreclosures has decreased and the plaintiffs are better at presenting their cases (the first time). The narrative of home foreclosures is changing, and the faster you act, the better you can control the storyline. The best success for homeowners is to address mortgage problems as soon as possible and fix them faster, as with a loan modification or repayment plan. If your goal as a homeowner is to remain in the house, you are more likely to have positive results if you act early and act fast. Sometimes this can be done before litigation or after litigation starts, but in many cases it takes the help of a third party professional.
Rusty Collins was admitted to the Florida Bar on September 27th, 2008 and his legal practice has grown rapidly since. His vast experience in real estate motivated him to attend law school, and consequently expand to serve both the real estate and legal needs of his clients. He is proud to provide service in areas where legal and real estate issues often overlap.
While a large portion of his practice is in foreclosure defense and consumer law, Mr. Collins’ reputation in fairness and honesty has brought him referrals in a variety of legal branches. He builds his professional profile as an attorney willing to do the work and accomplish difficult tasks.
Published on Jun 13, 2014