The Biggest Victory So Far for ‘Show Me the Note’ Practice
Banks should always be careful when handling documents related to mortgages and other loans. Foreclosure proceedings may not be legally allowed if there are flaws on how documents are handled.
As regulators and state attorneys general in all 50 states intensify their probes into mortgage servicers’ foreclosure documentation handing practices,
questions about bank documents continue to emerge. However, there are now precedents that may serve as examples on how homeowners could help protect their selves from possible foreclosures by banks.
A US bankruptcy judge in Camden, New Jersey, has blocked an attempt by mortgage lender Bank of America to foreclose a property. The court found that the bank is not legally authorized and rightful to even try foreclosing the home due to flaws in documentation. Observers note that this case could be considered the biggest victory yet for an emerging movement usually referred to as ‘show me the note’.
In a November 16 decision, US Bankruptcy Court Chief Judge Judith H. Wizmur ruled that Bank of America did not hold the right to foreclose an investment property that plaintiff John T. Kemp owned. The property at 1316 Kings Highway in Haddon Heights was put as collateral to a home loan from Countrywide Home Loans Inc., which was acquired by Bank of America in 2008.
The court found that Countrywide failed to deliver the mortgage note to its trustee, which was Bank of New York. Thus, it could not claim to be a note holder of the record. It could not also act as a servicer for Bank of New York.
The ruling is a take on a usual confusion that homeowners have. Experts note that bank and foreclosure documents should bear the correct name of banks involved. In this case, the documents stated mortgage provider as Countrywide Home Loans Servicing LP instead of its correct and registered name, Countrywide Home Loans Inc.
People privy to the court ruling noted that Bank of America tested the patience of the court when it initially claimed that it lost the note. It said it prepared a corresponding replacement note. Afterward, the lender claimed it had already found the right note and so it retracted its earlier replacement.
It could have been an honest clerical shortcoming, but loan documents also required that Countrywide should move that note to Bank of New York. Countrywide even testified that it was a common practice in the industry and it did not matter. Thus, the court highlighted that Bank of America and its subsidiary Countrywide became lackadaisical about such documents.
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