Mortgage debt waived after bank can't find paperwork

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Score: Little guy, 1; bank, 0. It's a nice change.

Two weeks ago, a bankruptcy court in suburban New York did the formerly unthinkable: It waived a homeowner's mortgage debt after the bank trying to foreclose on the home couldn't submit any proof that it actually had a claim on the property.

According to the New York Times, when lender PHH Mortgage was asked to provide proof that it actually held the deed for the $461,263 mortgage, it couldn't give the judge any records.

Operating on the entirely reasonable principal that someone who claims to possess a piece of paper that gives them ownership to a nearly half-million dollar house should actually have that piece of paper, the judge slapped a stiff and possibly game-changing punishment on the disorganized lender.

Real estate experts say this is a more common occurrence than many people realize, and the potential implications are huge.

During the go-go mortgage boom years, millions of loans were bundled into financial instruments called securities and sold to investors. They, in turn, often turned around and sold those securities to other investors. Making money hand over fist was the priority; keeping good records of who actually owned which mortgage wasn't.

The shambles that many banks' mortgage records are in today could cost them big -- and keep potentially thousands upon thousands of people from losing their homes.

The idea that banks should have to prove that they actually own the mortgage that gives them the right to foreclose if the homeowner falls behind on their payments isn't new. A group called Consumer Warning Network has been advocating for homeowners who feel railroaded into foreclosure by the lending industry by advising them to ask the lender to "produce the note" in court during foreclosure proceedings.

Good Morning America
covered this tactic last spring. At the time, though, the advice was just intended to help beleageured homeowners buy some time to get their mortgage modified or find another way to come up with the money they owed. It was assumed that the banks had the proof of their claim buried in a filing cabinet somewhere.

Now, though, it's clear that some lenders don't have proof that they have the right to foreclose on a home, and at least one judge has put his foot down and refused to let the lender take the home without that proof.

It's a small step so far, but it's one that could have far-reaching implications because of the large number of mortgages that were repackaged and resold many times over earlier this decade.

Of course, if a homeowner is in foreclosure, he or she will still lose the house if the bank has all the proper documentation. But if the bank can't produce the documentation, it's comforting to think that a judge won't let them put a family on the street just on that lender's say-so that they have the proof... somewhere.
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