“Does Your Foreclosing Lender Own Your Loan?”

These days just about every mortgage is flipped by a lender to another one or sliced up into pools of securitized packages that are sold on Wall Street. The financial engineering helped oil the housing boom by making credit more available. But stalled housing prices and rising defaults have revealed a mess: In the rush to flip paper, lots of the new lenders or pools don’t have the proper paperwork to show they even hold the mortgage.

A Florida attorney noticed two years ago that nearly all lenders seeking to foreclose against clients were filing “affidavits of lost notes”–essentially requests that a judge assume they own the loan since no proof is at hand.

What was found by some average snooping was that the company that filed to foreclose didn’t own the loans. The owner was actually a securitized pool of loans overseen by Deutsche Bank (nyse: DB - news - people ). In one particular case documents showing the pool bought a loan after the homeowner defaulted which is an illegal purchase for most pools, including this one.

In Kansas there was a foreclosure filing with no documents to show the bank owned the loan. In another case, ownership of a loan was recorded on a single date in the name of two different lenders. In March last year Deutsche Bank filed to foreclose on a seven-bedroom home in Worcester, Mass. but it came out that Deutsche was assigned the loan in May or June–that is, after the foreclosure filing. A U.S. bankruptcy court judge in April slammed Deutsche for its “jumble of documents” and ruled the bank could not evict the homeowner.

For the lenders, a possibly bigger threat on the horizon is that homeowners’ lawyers will bust up the “holder in due course” doctrine that makes it easier for subsequent owners of an IOU to collect. This doctrine says that certain defenses the evictee can use against the original lender (such as predatory lending) cannot be used against an innocent purchaser of the mortgage. The rule is provided for in many federal and state statutes, but a judge could nonetheless find a way to side with the homeowner, particularly if a loan is purchased after it goes into default.

There may be cases where it makes sense to challenge the lender to show they own your loan. A law firm can assist with this and keep the transaction under the attorney/client privilege so that what you submit cannot be used against you absent a direct court order which is also arguable.

We always collect the original loan documents and do a forensic audit or request that the bank show they still have them and if they don’t…guess what? We ask them who is the responsible party for a modification and that the client cannot pay someone who is not eligible to receive the payment. Many times the mortgages are even being sold during a default.

James Burns, Esq.