They also hope their case will send a message to mortgage companies that they must obey rules, too.
Homeowners use 'show me the note' to fight foreclosure
The Minnesota couple refinanced in 2006 to start a business. It failed. Debts mounted. The Geweckes went bankrupt and failed to win a loan modification. But they bought time.
In 2009, the Geweckes filed a lawsuit to block their foreclosure. At the heart of their case is this question: Who owns their mortgage?
They allege the investor trust that claims to doesn't because there's no proper record of the mortgage's transfer to the trust. Their complaint also alleges that the mortgage didn't get to the trust until 18 months after the trust closed to new loans. If US Bank, the trustee, can't prove ownership, it can't foreclose, the Geweckes say.
Number of homes that banks have repossessed as the result of foreclosure or forfeiture: Year 2006 2007 2008 2009 2010* 2011* * = estimate Source: RealtyTrac
Winslow said he's often seen cases in which lawyers pushing for foreclosure failed to produce the mortgage note — which proves ownership of the debt — or produced the wrong note. Companies failed to establish the legal chain of title proving their right to foreclose and submitted "questionable" affidavits attesting to ownership of notes and mortgages, the lien on the property, he said.
Homeowners' attorneys also allege that companies created documents if they didn't have the ones they needed, including lost-note affidavits signed by low-level employees who never read the affidavits yet attested to their accuracy. It was "cheaper to make the documents up than ... to dig them up," says Linda Tirelli, New York consumer bankruptcy attorney.
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