In judicial foreclosure states (such as Illinois, Florida, Pennsylvania, New York, and New Jersey), your lender is required to go through the courts to foreclose on your property. They become the plaintiff and you become the defendant in a foreclosure lawsuit.
The plaintiff must prove to the court that they are the party in interest that's legally entitled to foreclose on your home. That, in legal terminology, is called standing.
Standing is very important, and the plaintiff must have it at the time they file a foreclosure action against you. If they don't, your attorney may file a motion to dismiss the action because of it.
On Mortgage Ownership
You might think it's easy for a plaintiff to prove their standing. If you're being foreclosed on by your original lender, and they never transferred the loan to anyone else, it is. Standing is a matter of fact in that case. But most mortgages aren't held by the originator for the full term like they used to be.
Nowadays, it's more more common for residential mortgages to be securitized (packaged into investments) and transferred multiple times. A side effect of all that transferring is that, when a homeowner defaults, the foreclosing party can have difficulty coming up with the documents that prove their standing. But why?
A little background on mortgage documents will be helpful. You sign two documents when you purchase a home, a promissory note (or just note) and a mortgage (or deed of trust). The note is your promise to repay the loan. The mortgage is the document stating that the house secures the debt and entitles the lender to foreclose on it if you default on your payments.
Each time a loan is transferred a document called an assignment is supposed to be created, which is a legal record of the transfer. The change in ownership of the note is recorded with an endorsement on it, which signs it over to the new owner.
When a bank tries to foreclose on you, they're supposed to be able to show the whole transaction history, which is called chain of title, through assignments of the mortgage and endorsements on the note. This is how the plaintiff shows they have standing as the owner and holder of the note and mortgage, or that they're acting on behalf of who does.
Why Proving Standing Is Difficult
Assignments were sometimes neglected on mortgages that were transferred frequently. The mortgage banking industry created MERS (the Mortgage Electronic Registration System) in 1995 to record who owned what mortgages in a market where so many loans are securitized and frequently transferred rather than held for decades by the original lender.
MERS is supposed to act as nominee or assignee of the owner of the loan without owning or servicing it, thus eliminating the need for an assignment each time the loan is transferred. But when the owner of a mortgage loan needs to foreclose on a homeowner for defaulting, they need that assignment to prove their standing.
If the assignments, note, or endorsements are missing, the plaintiff can produce an affidavit (sworn statement) to the court stating that the original was lost, stolen, or destroyed, but that someone with personal knowledge of the note swears they had it.
Some banks resorted to forgery and fraud to get the paperwork they needed. In 2012, the big banks, like Wells Fargo and JPMorgan Chase, paid $26 billion in in the National Mortgage Settlement to settle claims of robo-signing and submitting fabricated evidence to courts. The government said the banks "routinely signed foreclosure related documents outside the presence of a notary public and without really knowing whether the facts they contained were correct. Both of these practices violate the law."
Case In Point: Robert McLean Appeal
In 2009 Robert McLean, a Florida homeowner, was being foreclosed on by Chase Bank. McLean filed a motion to dismiss because the bank was not in possession of the promissory note. (They said they couldn't produce it because it was lost, stolen, or destroyed.) The court denied his motion, but ordered Chase to produce an assignment proving its standing. Chase filed an assignment of mortgage which showed that MERS assigned the mortgage to them three days after they filed the foreclosure complaint!
Again, standing has to be established at the time the lawsuit is filed. It's not something that can be fixed later. Mr McLean lost at trial but appealed the final judgment of foreclosure entered in favor of Chase to the fourth district Court of Appeal of The State Of Florida because because the bank lacked standing. And he won.
The appeals court's motion for clarification stated: “We reverse, concluding that the trial court erred in entering summary judgment in Chase's favor, where the record lacked any evidence that Chase had standing to foreclose at the time the lawsuit was filed.”
That's how important standing is! Our law firm uses lack of standing defense whenever appropriate to help our clients avoid foreclosure. And we cite the McLean case, and others like it, to show judges that there's precedent.
Lack of Standing Defense Not a Permanent Solution
Having a foreclosure complaint dismissed because your bank didn't prove its standing is a victory, but it does not mean you're going to avoid foreclosure forever. It just means that the bank will have to amend the complaint or file another lawsuit with the proper paperwork. Still, the time it buys you can be invaluable when applying for a loan modification or other alternative to foreclosure.
When you're facing foreclosure, you need a qualified attorney on your side. It takes experience and knowledge to recognize when the banks are using fraud or cutting corners. Without a good lawyer, you'll never know if you're being taken advantage of or getting the best results possible.