Mortgage Assignments: Assignment of a Mortgage Without the Underlying Note is A Nullity

Oh, how naive people are. These transactions are not traditional mortgage loans.

Bankruptcy-RealEstate-Insights

In re Cornerstone Homes, Inc., 544 B.R. 492 (Bankr. W.D. N.Y. 2015)

A chapter 11 trustee sought a judgment that a series of mortgages were unenforceable as a matter of law because the written assignments transferring them to the current mortgagees were insufficient. If the trustee prevailed, the mortgage loans would be transformed from secured to unsecured claims.

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One thought on “Mortgage Assignments: Assignment of a Mortgage Without the Underlying Note is A Nullity

  1. > Oh, how naive people are. These transactions are not traditional mortgage loans.

    Here’s the problem — and the reason for conflicting decisions from different courts — a court can only rule on what’s presented to it. If the point that these mortgages are not “traditional” loans & the Notes are not “negotiable instruments” under UCC Article 3, they’re “investment securities” under Article 8, the court is not going to address those issues. And if they’re raised in one court but not in another, in cases with very similar or even identical facts, you’re going to get 2 very different decisions.

    I was talking with an attny. the other day who said he graduated law school in 2000 — after I mentioned that anyone who went to law school before around 2000 was’t taught anything about “securitizatized” mortgages because they didn’t exist. Older attorneys & judges treat mortgages as traditional loans because that’s all they’re familiar with. So when dealing with a newer, securitized mortgage, you have to clearly explain all the aspects of it & show why it’s not a traditional mortgage or it will be assumed that it is. The attorneys will be arguing & the judge ruling on mortgage law from the 1990s & earlier, even though the mortgage wasn’t originated until 2005 or later.

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