by Brian Mahany
In a case decided March 23rd of this year, the Wisconsin Court of Appeals reversed a judgment of foreclosure issued by a Rock County Circuit Court Judge.
Aurora Loan Services obtained a judgment of foreclosure against David and Nancy Carlsen. The dispute in this case wasn’t the money owed, it was whether Aurora could prove it was the holder of the mortgage note. Although the evidence was razor thin, the trial judge accepted the testimony of mortgage company employee. The Carlsens lost their home as a result but appealed.
As is so common today, the bank or mortgage company servicing the loan is not the original lender. Very few banks hold mortgages today. As soon as the mortgage is written, the mortgage is sold to someone else. Sometimes it is sold multiple times.
In this case, the original paperwork showing the transfer could not be located. Many banks use a company called Mortgage Electronic Registration Systems (“MERS”) to keep the transfer records. Unfortunately, MERS has been both overwhelmed by the sheer volume of home foreclosure and plagued with internal problems.
Although the trial judge relied on a photocopied, uncertified assignment provided by MERS. Not good enough said the appeals court.
Aurora next relied on one of its employees who testified that the assignment made them the holder of the note and entitled to foreclose. Like the “robosigners” elsewhere in the country, Aurora’s witness could not say that she had reviewed the original assignment or if it even exists.
As so eloquently states by the appeals court, “Thus, Conner did no more than identify herself as an Aurora employee who was familiar with some unspecified Aurora documents, who had reviewed some Aurora documents, and who had brought some documents … to court.”
What should you do if you receive a foreclosure notice? Hire a lawyer. The money you spend could keep you in house for months or even years. In a few cases, courts have simply dismissed the foreclosure action completely. It’s hard to raise money for a lawyer when things are tight but you may save much, much more in the long run
Mahany & Ertl is a full service law firm offering foreclosure defense throughout Wisconsin. Often we can represent you on a flat fee basis and help you remain in your home. Contact our Milwaukee mortgage foreclosure lawyers at (414) 704-6731 for a no obligation, no nonsense consultation.
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