IOU, MERS, Mortgage Electronic Registration System, Mortgage law, Mortgage loan, Promissory note, Trust deed (real estate), Uniform Commercial Code
When a potential homeowner takes out a loan to purchase a home, you are required to sign two documents: a promissory note and a mortgage (or deed of trust).
Assignments and endorsements are the ways that these documents are transferred between banks. Read on to learn the difference between an assignment of mortgage (or deed of trust) and an endorsement of the note.
How To Understand Mortgage Transactions
To fully understand the difference between an assignment of mortgage (or deed of trust) and endorsement of the note, you must understand the basic terms and documents involved in a residential mortgage transaction.
Mortgagee and mortgagor. A “mortgagee” is the lender. The mortgagee gives the loan to the “mortgagor,” who is the homeowner/borrower.
Loan documents. The loan transaction consists of two main documents: the mortgage (or deed of trust) and a promissory note. The mortgage (or deed of trust) is the document that pledges the property as security for the debt and permits a lender to foreclosure if you fail to make the monthly payments, whereas the promissory note is the IOU that contains the promise to repay the loan. The purpose of the mortgage (or deed of trust) is to provide security for the loan that is evidenced by a promissory note.
Loan Transfers. Banks often sell and buy mortgages from each other. An “assignment” is the document that is the legal record of this transfer from one mortgagee to another. In a typical transaction, when the mortgagee sells the debt to another bank, an assignment is recorded and the promissory note is endorsed (signed over) to the new bank.
These documents are separate and each has its own distinct set of rules that govern how they are exchanged between banks.
Assignments of Mortgage (or Deed of Trust)
An assignment transfers all of the interest the original mortgagee had under the mortgage (or deed of trust) to the new bank. Generally, the mortgage (or deed of trust) is recorded shortly after the mortgagors sign it and, if the mortgage is subsequently transferred, each assignment is to be recorded in the county land records.
The Role of MERS in the Assignment Process
When mortgages are transferred frequently, assignments are sometimes neglected. MERS (the Mortgage Electronic Registration System, Inc.), a company created by the mortgage banking industry, was developed to track ownership of mortgages. This eliminates the need for separate assignments when the loan is transferred. In some mortgage transactions, the mortgage will designate MERS as the mortgagee (solely as a nominee for the lender). These loans are referred to as MERS as Original Mortgagee (MOM) loans. In other cases, the loan may be assigned to MERS (solely as a nominee for the lender) at some point later in its life cycle after the loan closes. MERS then acts as an agent for the owner of the loan, but it never owns the mortgage loan or services it.
When a loan changes hands, the promissory note is endorsed (signed over) to the new owner of the loan. In some cases, the note is endorsed in blank which makes it a bearer instrument under Article 3 of the Uniform Commercial Code. This means that any party that possesses the note has the legal authority to enforce it.
Assignments and endorsements prove which bank owns the debt and may bring the foreclosure action. If the documentation was not proper, this can be a defense to foreclosure in some cases.
To find out how you can effectively use solid mortgage assignments and endorsement arguments and case laws for wrongful foreclosure defense visit: http://www.fightforeclosure.net