Replies to This Discussion

Permalink Reply by Michael Hayley on December 12, 2012 at 5:11am

BOA's position seems logical to me. If they are missing an assignment, they sure as heck do not want to disclose it. I'd ask the title agent if the closing condition is coming from their title insurance company and negotiate to see if the requirement can be removed. Then, its time to get a different title company ...fast!

Permalink Reply by joe beauchamp on December 12, 2012 at 6:38am

Last year I listened to a judge (recording on the net) award all the payments made by a homeowner back to the homeowner because the bank had no right to collect the mortgage - not on record - just like this. If I were a title co, I wouldn't touch this. The bank doesn't want to say anything because they could be the next to be sued and lose. The low level people at the bank don't know that the bank has done illegal things, management just grits its teeth hoping it goes away instead of a bunch of people realizing that they can sue their servicers for violating federal law and collecting payments. I've lost some clients to some **amazing** loan mods associated to a gov't suit. Cheaper than being sued and losing. Anyway, I think this is the kind of fire you have here and the banks do all they can to keep people from understanding that. Some people understand and want their liability out of there.

Permalink Reply by Uilani De Motta on December 12, 2012 at 6:56am

I would take this to the Office of the President at BoA. They may not be able to do anything for you at the 11th hour but I would try and just get anyone to listen. Also, I heard that sometimes when it gets to where both sides are holding their ground there is a way the seller can request a copy of all documentation on this file from the very beginning. When BoA acquired this they should still have all of it. Banks do not like when this request comes in because it can stir up a lot of trouble for the bank if they do not have this documentation and legally they are supposed to. It does take time and you will not be closing this anytime soon doing it this way. Your best bet would be to find another Title company willing.

Permalink Reply by Jennifer Scott on December 12, 2012 at 10:15am

Well, as of right now... my title company has stepped up to the plate, and they are communicating with BofA's attorneys. For the moment, I'm going to let them both fight it out, and see who ends up still standing at the end. :-) But hey, if any of you have an idea that might work, please let me know!

Permalink Reply by 31cg1fw8yxswn on March 4, 2013 at 10:33am

Probably late to answer you however...

1. if there is a missing link in chain of title then the current holder can not produce ANYTHING to correct it.  The link is broken and must have been repaired by the seller that broke the chain at the date of missing link.  To do so now would be considered "robo-signing".

2. I would get a new title company or attorney title to handle this...as long as the TITLE INSURANCE will cover the transaction, then there is NO issue....just make sure that the BANK is held to the loss recovery NOT the seller.

3. Since you have an approval of the terms of short sale, and since the BANK/Servicer is refusing to provide proof of ownership and validity of chain of title that can be insured...

a. Document everythign very well.

1. write each previous owner of the note have them give notarized statements that they do not own the note or mortgage.

2. Make sure you find the break in the chain but do NOT mention it to any of the previus owners/jholders of the note/mortgage.

b. give copies of everything to the seller.

c. have the seller get an attorney and sue the bank for collecting mortgage payments when they do not own the mortgage.  

d. ask for relief that the mortgage be set aside and the note be considered void.

Once each of the previous owners/holders have shown that they have NO interest in the note/mortgage and that the current hoder has no rights to it..then there is no legal note or mortgage, unless one can PROVE they have rights to it, without illegal creation of documents.

it will cost attorney fees plus a few hundred dollars, but I believe that your client will be abe to prove that if the title is not insurable if released from this bank then the client has been severely and permanently harmed by the bank.

Permalink Reply by TOP END Properties on April 2, 2013 at 3:20pm

You definitely need the Assignment, but you might be asking the wrong department.

- First, I would move out of the Short Sale Dept and contact the General Customer Service to find out about getting a Lien Release.

- Second, If BOA won't help, try contacting the investor who the lien was assigned to.

- Third, Contact the sellers closing attorney and see if they can track down the release.  This is what they do, and they are usually good at it.  This might even be your first option.

Permalink Reply by 31cg1fw8yxswn on April 3, 2013 at 4:22am

I just had another idea.  In most states the requirement is for free and clear title without recourse from past encumberances only.  The bank has stated that it will ONLY insure that the current foreclosure and guaranteed against, not any third party or other owner or party of interest in any current or past note or encmberance.

The bank has approved the short sale and stated that they are the agent of the holder.  They knew or should have known that they must provide CLEAR AND INSURABLE TITLE as part of the agreement.  The parties in interest have exhcnaged funds based on the bank's approval and now the holder can not prove and refuses to prove thier standing with regard to the note.

Let's boil this down to basics.  The parties are already harmed by the holder refusing to prove rights, that gives leverage to both inured parties and in fact raises questions in the foreclosure action (fraud against the court?).

 Have an attorney write a letter to the holder/servicer stating that they have failed to provide documentation that will allow for underwriting of the title insurance as required to assure clear title under the laws of XXX state.  Tell them that they must provide the title insurance fopr the buyer or provide whatever the state licensed title insurer's underwriters require to issue the title policy.

Explain that parties have already been harmed and are awaiting compliance ot state law by the bank.  Give a contact nmber and email for the underwriter. Also tell the holder/servicer they have XX days to provide the required information and fully perform thier duty. End the letter with "Conduct yourselves accordingly."

Have it sent by an attorney or by teh ttle company attorney (the latter is best).  The holder will probably handle it very quickly.

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