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Show Us," Fair Game, Nov. 28), Gretchen Morgenson questions "whether institutions trying to take back a property can prove they even have a right to foreclose at all".
When many mortgage loans went bad in the last few years, lenders outsourced crucial tasks like verifying the amount a borrower owed or determining which institution had a right to foreclose.
The problem for those who expect to receive the benefit of the note, Mr. Ayers said, is that they "may not be able to show to the judge they have a right to foreclose".
Without a note, a bank cannot prove it has a right to foreclose on a home; homeowners have used the absence of a note to contest foreclosures.
Initiating foreclosure actions in which the real party in interest was hidden, thus preventing homeowners from ascertaining who owned their mortgage in order to challenge whether or not they had a right to foreclose and limiting their legal defenses.
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They frequently couldn't prove they had a legal right to foreclose, or even determine if they had a financial interest in doing so.
In states where foreclosures need a court's approval, servicers now find themselves unable to prove they have a legal right to foreclose.
Word of her presentation reached New York, where a state Supreme Court judge cited it in a harshly-worded ruling that a bank lacked the right to foreclose on a Brooklyn home.
Under the civil relief act, a judge must hold a hearing at which the service member is represented before granting a lender the right to foreclose on the service member's home, even in states where a court order is not required for civilian foreclosures.
David Shaev, a lawyer in New York who works with troubled borrowers, says the United States trustee there has also intervened in one of his cases, taking up the issue of a bank's right to foreclose.
But her ordeal reveals another dimension to the foreclosure crisis, in which homeowners associations nationwide have the same powers as banks and mortgage lenders, and they can exercise a little-known right to foreclose on homes.
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Justyna Jupowicz-Kozak
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