What Every Real Estate Investor Needs to Know About Foreclosure Document Problems

You’ve probably been hearing a lot of talk in the news about lenders having “document problems” and suspension of the foreclosure process until the problems can be cured. Well, here is my understanding of what they are really talking about.

First, let me say I am an investor, not a lawyer. This is just general information that investors learn about and say “Holy Cow!” and you might be interested in finding out a little more about. With that disclaimer, let’s dive in. There have been a number of major banking institutions announcing they are stopping the foreclosures temporarily to correct problems with the foreclosure documents. Most people assume that this means they are just checking to make sure every thing was done properly. It turns out there may be just a little bit more to the story. So when someone buys a house or other real estate property and gets a loan, there are some documents they sign at the closing called the mortgage and the note. Your lender may have handled all of these correctly and if they did none of this is going to affect you. But, some lenders sell the loans to others (so they collect their fees and make some money and then are out of the transaction except for maybe collecting the payments or servicing the loan). The loans may be put in a big pile of loans and then sold to other financial institutions that in turn break the big pile of loans into smaller investment pieces and sell the smaller pieces (commonly called mortgage backed securities) to investors. When the borrower closed on the loan, a paper trail of people that handled the documents (note and the mortgage) start to flow. Each time they change hands (ownership), there is supposed to be a group of signatures of the givers and the receivers of those documents as well as the witnesses to the signatures and notaries of the signings. Basically, flaws in the chain of the passing of the mortgage and the note correctly leave the loan open to legal challenges when and if there is ever a foreclosure. Also, both of those documents as well as all of the pieces of paper and signatures following them in the paper trail must be in their possession That is one situation.

Another problem that can come up is that if there is a default (failure to pay accordingly) and there was insurance on the performance of the borrower (lender insured that the borrower will pay and on time), there may be limits as to what the current owner of the loan can collect from the borrower that is in foreclosure since the lender got some or all of the money owed paid by the insurance company. There is a legal concept that says the foreclosing party must demonstrate the actual loss. If an insurance company paid them, there is either no loss or a reduced loss since they got payment from the insurance company.

A third issue that comes up is called robo-signing. This is the occurrence of people that were not physically present when the documents were signed or changed hands have signed the papers like they were there or signing where they were not authorized to sign. Most of these flaws in the proper documentation are not so noticeable to the borrower since they do not see them. There are people that can search out to see if there are potential problems with loan documents… they are called forensic loan investigators. You can likely do an internet search on that term and find them. These companies usually work in conjunction with attorneys that handle foreclosure cases.

So all of this is just to raise you level of understanding of what some of the issues are that are causing the news of foreclosures being suspended because of “document problems”. If you are facing foreclosure, contemplating buying a foreclosure or having problems with your loan, seek counsel from an attorney.