More on Mortgage Transfer Mysteries

Abstract

Predatory mortgage lending issues appear to have died down momentarily, at least as far as reported state and federal appellate litigation indicates, but questions about the transfers of those mortgages in the secondary market seem to be growing markedly. Three issues ago, I wrote on Aceves v U.S. Bank (2011) 192 CA4th 218, 120 CR3d 507, where one of the issues was whether the new trustee had been properly substituted in by the new lender. See Mixed Messages on Mortgage Foreclosures, 34 CEB RPLR 54 (Mar. 2011). Then, two issues ago, I covered Gomes v Countrywide Home Loans, Inc. (2011) 192 CA4th 1149, 121 CR3d 819, which held that our statutory provisions permitting trustee sales to be conducted by “any authorized agent” of the beneficiary eliminate most debtor challenges as to how the loan documents got to the foreclosing party. See Challenges to California Foreclosures Based on MERS Transfers, 34 CEB RPLR 87 (May 2011). Then, last issue, I commented on Ferguson v Avelo Mortgage, LLC (2011) 195 CA4th 1618, 126 CR3d 586, which—indirectly—upheld the effectiveness of a transfer through MERS although it involved only the deed of trust and not the note. See The Editor’s Take, 34 CEB RPLR 143 (July 2011). Now, in this issue, there are three more cases involving those issues. What keeps the topic from being monotonous is that the rulings are always new and different—and often scary.