Evan McKenzie on the rise of private urban governance and the law of homeowner and condominium associations. Visit evanmckenzie.wikispaces.com for my published articles and services.
Great case. However I think the author's statements might need clarification. It is not possible to own a mortgage separate from a note. In such a case the alleged mortgagee owns nothing because ownership of a mortgage without ownership of the underlying debt to which it is incident is a nullity and certainly unenforceable.What this case is about is legal ownership and record ownership of the mortgage at the time the foreclosure action is filed. The mortgagee inherently must own the underlying debt as well. You cannot hold a bare lien.I do hope that a string of cases comes out for the proposition that by assigning a mortgage and not transferring ownership of the debt at the same time...the assignee takes nothing and the assignor has just quitclaimed their security interest. We shall see what happens.Of course, there is another problem in deed of trust states. The foreclosure mills have been busily modifying laws to define "mortgagees" as holders of deeds of trust. However, a deed of trust is not a negotiable instrument and physical possession means nothing. What the mills were seeking was to capitalize on all the court cases that state that the "mortgage follows the note". Problem is that "re-definition" fails upon closer examination. Deeds of trust are NOT mortgages at all. There is a significant difference between title theory states and lien theory states. SO regardless of the use of the term "mortgage" in a deed of trust state (as promoted by mills), the security instrument is NOT a mortgage and the case law applicable to mortgages really does not apply well to deed of trust states just because someone tried to re-define a term.
Jeepers, Mr. McKenzie! This is going to start those questions about "Who will be the next CAIer to do the Perp Walk?" all over again....I always try to look on the bright side, but, well, since you're a professor, can you recommend any good schools of cosmetology?RebeccaPCAM of Sunnybrook Farm HOA
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