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Fifth Circuit gives servicers green light to foreclose without note

The Sixth Circuit’s ruling is significant because, among other things, the prospect of FDCPA liability may discourage law firms from engaging in mortgage foreclosure activity, requiring banks and other mortgage servicers to move some of these collection activities in-house.

Bac Home Loan Servicing, the Fifth circuit interpreted texas law as granting servicers a right to foreclose without the note as long as they have a viable mortgage assignment.

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The first theory posits that to foreclose, a party must produce the original note bearing a "wet ink signature." 3 Numerous federal district courts have addressed this question, and each has concluded that Texas recognizes assignment of mortgages through MERS and its equivalents as valid and enforceable without production of the original.

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Foreclosing on Nothing: The Curious Problem of the Deed of Trust Foreclosure Without Entitlement To Enforce the Note. Dale A. Whitman Drew Milner In this article we propose to examine the extent to which a party conducting a nonjudicial foreclosure of a mortgage or deed of trust must establish that it is entitled to

But when the Tenth Circuit Court of Appeals strikes down a legal theory, we try to clue you in so you don’t waste your time making a similar argument in the future. That brings us to today’s now-defunct foreclosure theory: MERS can’t foreclose on a home on Utah. According to a multiple Tenth Circuit opinions, that’s simply not true.

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Loan servicers can’t foreclose. If there was any funny business with the contract or the transaction, that comes back to the owner, as he inherits all these problems. They can’t be held liable, but it creates a new conflict between them and the bank that sold them the loan. Not your problem.

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