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Do I need a real estate attorney?

Arlington, VA |

I bought my house in 2005. In 2006 my lender sold my loan. Then the first lender went out of business and what was left was sold to PNC. I am trying to refinance my loan and the current lender doesn't have the assignment to the loan. I was supposed to close on the refinance today and couldn't because my lender cannot prove they own my loan. What the heck do I do???

Attorney Answers 3

Posted

You definitely need an attorney qualified to research the chain of custody of the note and deed of trust/mortgage. In general many states follow the "mortgage follows the note" theory, which implies that an assignment of the mortgage is not required so long as PNC has possession of the original note. If they hold the note, then the mortgage belongs to them as well. But this is a complex misunderstood aarea of the law that is currently in flux, so that is why I advise that you get a good real estate attorney. One who is versed in wrongful foreclosure defense would be most likely to be experienced in this are, even though you are not in foreclosure.

This answer is for general information only and does not create an attorney client relationship between Navaro & Associates LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues. Our firm offers free consultations up to 1/2 hour.

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Posted

The county says the note still belongs to National City Bank which went out of business and PNC took it over several years after my loan was sold to GMAC in 2006. When I called PNC they stated they have no record of my loan. How long do you think it will take to find out who has "custody" of the title? Is this a common occurance for powople who are not in the foreclosure process? What typically happens in this case when someone is not in foreclosure and this happens?

Steven Navaro

Steven Navaro

Posted

Avvo Email - Rated Professionals. Expert Advice.Finding out who is actually the current holder of the Note can be difficult without further research into your loan documents. There is no requirement that when a loan is sold, that the assignment of the Note be recorded. It is often the case that the note is sold several times. If your loan has MERS listed as a nominee, you can call MERS and provide them with the MERS number listed on your Note, and they can tell you who the current holder of the Note is. This may be quite different than the servicer of your loan, which is who you would be sending your payments to. The servicer is the company hired to collect payments on behalf of the Note holder. These transactions are currently not disclosed to the Borrower, and there has been a great deal of litigation surrounding who the Owner of the Note is and the Borrower’s right to know who actually owns the Note. If the company that you send your payments to has no record of your loan, then I would ask where your payments are going, and how these payments are being applied to a loan they have no record of. All in all, I would recommend getting legal counsel versed in these matters to assist you to clear things up.

Asker

Posted

I looked up online to see if MERS was apart of our loan by using a website and our address. It stated MERS didn't process our loan but I don't know how accurate that is. Basically our second mortgage lender is holding us up from refinancing our first mortgage or selling our home if we wanted to. The timing could not be worse. We had no clue this was happening because our 2nd mortgage lender did a subordination for us in January 2010 which is apparently not valid according to them now. When I called PNC, they said they have no record of our loan from 2005 because they didn't buy National City Bank until a few years after GMAC took our loan over from National City Bank, who is now out of business. This is such a mess. Thank you for your advice.

Steven Navaro

Steven Navaro

Posted

If you have a copy of your original Promissory Note, there may be a MERS number located somewhere on the document. If you can find that number, then you can call MERS and find out who actually owns your 1st mortgage. At least that is the way they claim their system is supposed to work. You really do need an attorney knowledgeable in VA real estate/foreclosure law to assist you with this. Perhaps you can find one here on Avvo.

Posted

Mr. Navaro's answer sounds correct. This is one good reason to choose a CRESPA licensed title agent who is also a lawyer when doing a closing. As the buyer/financing party, you have the right to choose the title agent, and, when things go hairy, it's not a bad idea to have a lawyer in the role ... often for the same cost as a non-lawyer title agent. In this case, you may already have a bill from the title agent you already selected and a bill from the lawyer. But, the bottom line is that you need a qualified lawyer to research, clear, and push the lender to give this adequate priority.

I'm a Va, DC, and Md lawyer, but I'm only licensed to write title insurance in DC and Md. If you decide to move the closing, I can refer you to a colleague who can close it, too. Call early next week if you want help: 202-530-0100.

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What is your colleagues name and is there a local office in Arlington? Thank you!

Posted

The short answer is YES, you need to have an attorney to assist you. I would be curious to know, if the current lender cannot prove ownership of the note, why it accepts your money for payment?

In answering this question, we have not created an attorney-client relationship. You must execute my engagement agreement and pay my fee before we have an attorney-client relationship. Any response I may post is based solely on the limited information you have provided and there may be other circumstances you fail to include that will affect your legal rights. If you wish to have a legal opinion or seek representation, you may contact me via my website and we may establish an attorney-client relationship at that time.

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Posted

I told them if they cannot provide me with a subordination so that I can refinance my second mortgage and they cannot prove they own my loan then "perhaps I should not pay you".....GMAC then said they will eventually get the assignment and threatened that they will foreclose on us. I don't want it to affect our credit so I will pay them but we cannot sell our home or refinance because they cannot provide us with the assignment or the subordination. I have an appointment on Tuesday to see a lawyer, she heard my issue and set us an appointment right away. We refinanced our 1st mortgage in January 2010 and GMAC (our 2nd) provided us with a subordination then, which apparently was NOT VALID. This entire thing is a mess. I don't this PNC will be able to give GMAC an assignment since they took over National City Bank years after GMAC bought our loan from National City Bank.

Asker

Posted

I meant to say we are trying to refinance our 1st mortgage not our second.

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