Was The Note Properly Assigned?
Many South Florida residents in Miami-Dade, Broward County and Palm Beach County in foreclosure are dealt cases that are missing the proper paperwork to foreclose. The banks and their lawyers that are calling for foreclosure have systemically trampled upon the borrowers rights. This Florida foreclosure process is a sad representation of the lack of enforcement in our society. A fact known to most Florida foreclosure lawyers is that these banks and lawyers are paid, almost on commission, by the number of foreclosures they process in a day or even by the hour. Unfortunately, Florida foreclosure courts are so overburdened that the judges in many cases are not always reviewing the bank’s documents to see if they have properly prepared their case.
Frequently, in these Florida foreclosure cases, the bank has lost the homeowner in foreclosure’s promissory note and will claim it has been misplaced. The question we are trained to ask as a Florida foreclosure defense attorney is; did the bank ever really have the promissory note to begin with? In court, the bank can only say they lost the note, if in fact they can prove they had possession of the note in the first place.
Many times during Florida foreclosure court, the banks will have difficulty proving that they ever had the note and mortgage. In reality, these notes and mortgages have been sold and/or traded years ago. Many of homeowners’ promissory notes and mortgages have been pooled, stripped and divided so many times that no one really knows who owns the note and mortgage. These simple notes and mortgages have been turned into obscure securities sold and resold by investment banks — many of which have already disappeared — to unsuspecting investors all over the world. Now these “obscure securities” are being called “toxic securities” and are at the root of the economic melt down. In fact, the government has been buying these toxic securities as part of the economic bailout in 2008.
As any first year law student knows, when a mortgage is sold to a third party it must be assigned and recorded in the public records. Oddly enough, many of the notes and mortgages that were sold and packaged were not properly assigned and recorded in the public records. Legally, for a Florida foreclosure to proceed through the courts, the chain of title must be shown on the face of the foreclosure complaint. Luckily for many Florida foreclosures, that frequently does not occur.
Posted By George Beckus Esq.