Tuesday, November 9, 2010

DC Foreclosures Just Got a Little Tougher

On October 27th, District of Colombia Attorney General Peter Nickels issued this Statement of Enforcement Intent Regarding Deceptive Foreclosure Sale Notices. The Washington Post reported on this development here. In this statement, the Attorney General now requires:

Prior to initiating a foreclosure involving a District of Columbia homeowner, a trustee or noteholder is obligated to confirm that the District’s land records demonstrate that the noteholder has the security interest that will be listed in the foreclosure sale notice. Each assignment of interest (or other document) by which the security interest was transferred to the noteholder, or to one of the noteholder’s predecessors in the chain of conveyances from the maker of the note, must be recorded with the Recorder of Deeds.

This means that before a foreclosure sale can occur, there must be a clear chain of ownership of the indebtedness such that the public records match the name of the entity who is doing the foreclosing. Because of MERS and the securitization of loans today, this clear chain doesn't always exist.

How does this affect how we issue title insurance in DC?

We have received two underwriter bulletins on this subject. In the first, we are asked to comply with the statement and ensure there are "recorded assignments of the Deed of Trust each time the owner of the note sells the indebtedness so that a clear chain of ownership of the indebtedness leads to the lender who is directing the trustee to initiate the foreclosure action."

In the other bulletin (from another underwriter), we are asked for the following for DC sales transactions:

Proof that the foreclosed Deed of Trust was not secured by owner-occupied residential property at the date of initiation of foreclosure proceedings, in the form of an affidavit from the foreclosing lender or its agent stating that the defaulting borrower(s) did not occupy the property as his/her/their personal residence at the date foreclosure proceedings were commenced.

This obviously adds some some additional complexity to our title reviewing process, and may in some cases render a title uninsurable. Many speculate there may be some emergency legislative or judicial action to more clearly reconcile this opinion and that of MERS with respect to the latter's ability to foreclose on properties.

Stay tuned as more develops...