MERS | Black & LoBello

How to Check Your Property’s Chain of Title

On March 21, 2012, in Foreclosure, Mortgage, Real Estate, by blacklobellolaw

One of the main dysfunctions that led to Nevada’s real estate crisis lies in how the paperwork was handled when transferring ownership of a property from one person to another. During the housing bubble, paperwork was pushed through so fast that critical errors occurred that could affect the marketability or ownership of many properties. During good times, nobody complained because housing values were rising steadily and people could make money easily by selling or “flipping” properties quickly. However, now that the bubble has burst leaving people stuck in underwater homes, unable to make payments, and with foreclosure looming; the process of transferring ownership or “chain of title” has come under scrutiny. Nevada’s new legislation, specifically AB 284, forces foreclosing lenders to provide some additional documentation to proceed with more diligence. Homeowners should do their best to become aware of and comfortable with the property records recorded against their property, especially in default. This information is important to ensure that defaulting homeowners are dealing with the proper parties and apprised of any discrepancies that may be useful through the short sale, loan modification, or foreclosure process. Fortunately for the homeowner, this information is readily available, as follows.

Simple instructions to view your property records or “chain of title.”

(1) Obtain Assessor’s Parcel Number (APN) from the Clark County Assessor’s website.

Click “Property Records” on the left-hand side.
Click “Owner Name” in the middle of the page.
Enter the homeowner’s proper first and last name as they would appear on the deed. Click “Search.”
From the property records provided, find the homeowner’s name and click on the Parcel Number.
This will give you the Real Property Parcel Record. Make sure the property address is correct and copy down the Parcel Number.

(2) Now that you have your APN, you can obtain your chain of title by visiting the Clark County Recorder’s website.

Click “Search Records” on the left-hand side.
Click “Parcel #.”
Enter your APN in the “Parcel #” field at the top and click “Search.”

The resulting page should include a list of documents recorded against the property including deeds, homesteads, deeds of trust (Nevada’s typical type of “mortgage”), liens, and foreclosure notices (Notices of Default/Notices of Sale, etc.).* A sample Clark County Recorder’s Page is pictured below.

*While this is a good place to look for discrepancies, this information may not always be up-to-date or even accurate. It is possible that the County Recorder’s webpage does not reflect all or even the latest developments in a particular property’s ownership. Other difficulties may arise if documents were not recorded, or the property was substituted or reconveyed to/from Mortgage Electronic Registration System Inc. (MERS), the third-party deed recording company formed by Fannie Mae and Freddie Mac. Its records are not open to the public and may not be visible on the County Recorder’s webpage. Many other circumstances exist in which the steps above may not provide an accurate account of all recordings on a particular property and, as stated in the Notice below, the information found herein or on the websites referenced above should not be relied upon without separate and appropriate advise of counsel. Nevertheless, the process described above is a good start and can help homeowners stay informed as to the overall status of their property.

Tisha Black Chernine, Esq.

Tagged with: AB 284 • APN • Assessor’s Parcel Number • chain of title • Clark County recorder • MERS • Mortgage Electronic Registration System Inc. • property record

The Multi-State Settlement Part 3 of 3: What Should Nevadans Do

On February 21, 2012, in Business, Foreclosure, Legislation, Real Estate, by blacklobellolaw

So where does the Multi-State Settlement (“MSS”) leave Nevadans? Essentially, in a slightly better position IF, and only IF, we manage our expectations, pay attention and do our homework. If we do these things we may be able to collect all the money allocated to us, pursue the “banksters” criminally and pursue our individual remedies under state and Federal laws. To begin you must do the following:

Determine who owned/owns the Note.

It is expected to take somewhere between 60 and 90 days to set up the MSS infrastructure and to commence delivery of the forms associated with the “opt-in” portion of the program. During that time, borrowers who were foreclosed upon, still making payments or are still in default should take measures to determine who owned, claims to own or currently owns their note. They can do this by searching the Fannie Mae and Freddie Mac websites, sending out a Truth-in-Lending letter and contacting the servicer related to their loan. There is generally a service number located on all mortgage invoices. Nevada is not a “show me the note” state. We do require that claimant lenders can produce proof of the right to collect on the Note. However, they are NOT required to produce the actual note. A certified copy thereof will do. Accordingly, you will want to look at who is making those certifications. Check the endorsements on the note, to whom the note is endorsed (this is a technical bearer/order distinction that may be important to a lawyer) and the manner in which the note was endorsed - on the note itself or by a separate paper. All of these things matter and may be changed or altered by the Bank or other party at a later date. Gathering them NOW is important and prudent.

Determine who owned/owns the Deed of Trust.

In addition to researching the note the borrower should determine who is or has foreclosed upon (all that apply) their Deed of Trust. In a series of opinions regarding mediation and transfer of beneficial interest in Notes and Deeds of Trust the Nevada Supreme Court has given very clear instructions on how and what constitutes a proper transfer of the Deed of Trust. Therefore, Borrowers should endeavor to ensure that any claimed creditor pursuing them under a Deed of Trust has the proper documentation to support its claims. Borrowers can research this information by sending a TILA letter, researching their MERS MIN number or looking through public notices and recorded documents. Deeds of Trust should be transferred by assignment. The date of the transfer in relation to other occurrences such as the commencement of the foreclosure process and filings by trustees can have a big impact on whether or not the foreclosure was done properly and by the proper party.

Review the County Recorder’s page and your title chain.

Nevadans should also review the Recorder’s page on their past, present and future properties. Oftentimes, you can collect information regarding transfers, find robo-signers, false dates, false names and botched documents in the public record. Singularly and in the aggregate, these types of facts can add up to leverage in a short sale, decrease in a deficiency or a lawsuit under various Federal and state laws. Moreover, look at the trustee’s deeds to determine if the property has been foreclosed upon. Make sure the listed beneficiary matches those in the chain. Notably, a recent Massachusetts Supreme Court denied a quiet title claim of a purchaser at a botched foreclosure. Examining these records closely when seeking to purchase a property may avoid title issues in the future.

Review your mortgage statements, credit reports and other records.

There are many Federal and state protections for borrowers who have been subjected to misapplied mortgage payments, false credit reports, force placed insurance, doubled fees (such as BPO charges or “site inspections”) and bogus charges. Look at your statements as suspect. Even small accounting errors can garner decent statutory fines in your favor. You can order an accounting of these things by sending a Qualified Written Request to your lender or servicer. You are also required to have received notice ANYTIME your mortgage was transferred. This notice is to have been provided within 30 days of the transfer. You may have a fine waiting for you to collect if you did NOT get it, like many other little known statutes.

Read, read, read!

The big secret is that people, including banks, do not read their documents. Before you sign, look for waivers and releases in EVERYTHING and understand what they mean even if you have to see an attorney. Read the small print, large print, things in boxes and regular paragraphs. Determine who the parties are and the obligations of each. Think of the worst case scenario and make sure the document addresses what would happen in that event. Look for the small charges that will be taken from you such as processing charges, documentation charges, copy costs, interest for no reason, penalties that are not penalties, pencil sharpening, etc. and know when they will be allocated. You are your own watch dog. If it looks strange, sounds funny or gives you a “gut-check,” look into it. If you are not certain, find COMPETENT people to assist you based on sound in-person referrals, not a suggestion from a stranger, the internet or a flashing advertisement.

Be diligent.

Pay attention regardless of whether you paid your mortgage. Research the MSS, opt-in if you qualify, know who your lender is and the programs they offer. Investigate your property, examine your title and know your rights. If someone or some company owes you a deadline, make sure you remind them the DAY it is late. Be timely yourself. Follow the directions and keep copies of everything, including whom you talked to, when and if they called you or you called them. This is, in large part, a game of attrition. Know what to expect and ensure that the people you rely on professionally and politically act and vote appropriately.

Finally, manage your expectations.

Steel yourself to the fact that you must make an effort. There are no silver bullets. This is not an era where one can rely on others for good advice, clear direction or protection. Above all else, hold on because this ride is nowhere near over and the rules to this game seem to change every day.

Tisha Black Chernine, Esq.

Tagged with: banksters • borrowers • deed of trust • Fannie Mae • Freddie Mac • MERS • MSS • Multi-State Settlement • Truth-in-Lending

Did MERS Mess Up Everything?

On January 13, 2012, in Foreclosure, Mortgage, Real Estate, by blacklobellolaw

MERS stands for Mortgage Electronic Registration System and, as a company, represents some of the most difficult issues Nevada must deal with as part of the mortgage crisis. Normally, when a person gets a loan for a property in Nevada, the loan is secured by a deed of trust (“DOT”). A DOT is a three-party instrument involving a beneficiary, trustor and trustee, which serves the same general purpose as a mortgage. Regardless of the type of collateral, the DOT is recorded in the county where the property is situated. Furthermore, anytime a document is recorded with the County Recorder’s Office, money is involved with the national fee average of around $60 per recording. In regards to the securitization process, whenever the DOT is assigned, those assignments are recorded, as well, to “put the world on notice” about who has a claim to the property. For instance, if one bank sells a loan to another bank, that loan is then “assigned” to the second bank and is subsequently recorded. At $60 per assignment, one can start to appreciate the amount of money involved in the securitization process, especially considering how many times many of our mortgage loans were bought and sold after origination. Thus, recording is integral to property rights in general, as it makes information related to the ownership and status of properties readily available to interested parties.

As a way to cut the cost of recording fees, and deal with the wildly different standards of the various county recording offices, Fannie Mae and Freddie Mac formed a national entity called MERS. When a DOT is originated between the original lender and borrower, it is still recorded in the county of origin. However, other important documents (such as assignments and substitutions) are purportedly tracked through MERS to save the individual counties time, money and other resources. MERS is a private company, which means these transfers are no longer in the public eye and the world is no longer put on notice when changes occur. The issue for defaulted borrowers arises when the default documents are filed by MERS instead of the appropriate party. When MERS does not have any interest in the property, it should not have any legal right or “standing” to foreclose on a borrower. Another issue of debate with MERS is one of agency. This is so because MERS represents many different lenders and, in many cases, has to transfer loans between those lenders. The concern then has to focus on which lender MERS truly represents with each loan and the reliability of MERS documentation.

MERS has become such a tricky topic for the legal community that the high courts in New York, California, Maryland, and Maine have handed down conflicting views. Nevada’s Supreme Court will soon make its own decision and hopefully, serve the nation again as the focal point in this mortgage crisis.

Tisha Black Chernine, Esq.

Tagged with: agency • assignments • deed of trust • foreclosure fraud • MERS • Mortgage Electronic Registration System • recording fees

Black & LoBello On the Radio

On November 8, 2011, in Foreclosure, Mortgage, Real Estate, by blacklobellolaw

Click here to listen to the Legal Hour on KDWN AM720 from November 2nd, 2011 in which Managing Partner, Tisha Black Chernine, Esq., discusses buying foreclosed homes, different types of deeds, notice of default, Assembly Bill 284, how to spot and clean up problems with a property title and Supreme Court cases that affect foreclosures.

Please tune in to AM720 KDWN’s “Legal Hour,” everyday, from 9 AM to 10 AM. Listen live on the radio or online. Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.