Skip to main content

Can my Fannie Mae loan be foreclosed if the pooling and servicing agreement (PSA)does not document my securitized loan in MERS.

Pembroke Pines, FL |

In 2005 I obtained an equity loan thru QuickenLoan. The loan was sold to IndyMac and now One West Bank and is held by FannieMae and I believe it is securitized in MERS. Each securitized trust has something called a "pooling and servicing agreement (PSA)." The PSA is supposed to document each loan included in the trust. How can I get information on the PSA responsible for my loan to verify that my loan is included amongst the many others? If it is not, will IndyMac/OWB or FannieMae have standing to foreclose on me? How can I find out if the PSA responsible for my loan has all the documents, etc?

Attorney Answers 3


  1. You need to find an experienced foreclosure attorney in your city to discuss this situation. PSA's are notoriously hard to track down. An experienced attorney should be able to hire an expert to track this down. In all likelihood, the loan was not properly securitized. However, this is a very hot issue right now and the law is still developing. Some courts say MERS can foreclose, others say no, assuming the loan was ever properly securitized.


  2. If you are currently engaged in the lawsuit, you must make a discovery request. Discovery is simply the process of finding out the information upon which the other party is relying to substantiate its claim, and defend against yours. You would have to file a Request for Production of Documents with the Clerk of Court, and send a copy to the Plaintiff. But, banks can find ways of not producing the requested documents, and other procedures will need to be followed, and motions filed to actually receive what you are seeking. (That why I half-jokingly "good luck" in your previous question when I talked about actually getting the banks to provide the PSA).

    It sounds like you really need to speak with an attorney, as these matters are precisely the type that foreclosure attorneys handle. It can get very tricky, and you don't want to gamble on representing yourself at the risk losing your home.

    Legal disclaimer: The information provided should not be taken as a substitute for legal advice from retained counsel. Mr. Jones does not intend to create nor does he consent to a formation of an attorney-client relationship with anybody reading this material, including the question poster, by virtue of posting on information on this website. If you are in need of legal advice, you should consult and retain local legal counsel.


  3. It indeed sounds like your loan has some issues with the securitization. MERS is a loan servicer and not the securitized trust. The SEC has a website that allows you to search for PSA's, but without the actual name of the trust it's hard to find which PSA is applicable. You can submit a Qualified Written Request ("QWR") to your mortgage company and ask for that information. If they do not provide it, you can sue for damages in federal court. The address to send the QWR is in your mortgage documents.

    The purpose of the PSA is to assign your mortgage to each bank for a specified purpose and a specified period of time before assigning it to the trust before the cut-off date listed in the PSA. Each bank has a duty and upon completion of that duty moves the mortgage to the next stage of the process by assigning it to the next bank.

    You should contact an attorney in your area that is experienced in defending foreclosures that involve securitized trusts.

    This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at www.stagelaw.com.