Challenge Deed of Trust on second mortgage?

[pomona]

Hello,

Chapter 7 discharged last week and closed yesterday.

Not upside down in house. Reaffirmed 1st mortgage with Wells Fargo.

2nd mortgage with Lending Tree, then Countrywide and now BOA.
2nd wasn't reaffirmed. BOA wouldn't do it.

MERS listed on the Deed of Trust.

I'm wondering if I should continue voluntary payments with my second mortgage with BOA, have a forensic loan analysis done or just stop making payments, see what happens and challenge the legality of the Deed of Trust if MERS trys to foreclose.

Based on this information in the NY Times.
http://www.nytimes.com/2009/09/27/business/27gret.html

Deed of trust on record with Nebraska county listed MERS as the holder of legal title:

Lenders First Choice as trustee with an address at xxxx Royal Avenue Simi Valley CA for the benefit of Mortgage Electronic Registration Systems Inc MERS solely as nominee for Home Loan Center Inc dba LendingTree Loans xxx Technology Drive Irvine CA hereinafter you or Lemder and Lender s successors and assigns with an address at P O Box xxxx Flint MI tel 888 679 MERS referred to as the Beneficiary Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Deed of Trust but if necessary to comply with law or custom MERS as nominee for Lender and Lenders successors and assigns has the right to exercise any or all of those interests including but not limited to the right to foreclose and sell the Premises and to take any action required of Lender including but not limited to releasing or canceling this Deed of Trust.

Any Thoughts?

[awayalways]

I dont understand how two different lenders could each hold deed(s) to the property. Is WF also holding a deed-in-trust? I would think WF would hold the deed in first position and MERS would be a lein holder in second. And I think the deed-in-trust is usually handled outside the judicial court system which would require you to be the Plaintiff in any foreclosure court action (if you decided to fight it).

[UpsideDownMI]

MERS will not try to foreclose as they are not a lender. MERS is simply a third party that streamlines the recording process for lenders. Lenders use MERS so that in the event they sell a note to another lender their is no need to record that transaction, as MERS holds the lien. It is an interesting and very confusing concept.

In the event of foreclosure MERS will simply assign the lien back to your lender so that your lender can foreclose. This assignment will be recorded at the register of deeds. For more info on MERS go to http://www.mersinc.org.

[pomona]

Wells Fargo receive the assignment of the Deed of Trust on the first mortgage. (after it was sold to them) I reaffirmed this during bk.

Mortgage Electronic Registration Systems (MERS) has always been the beneficary of the second mortgage as assigned by Lending Tree, even though the loan went to Countrywide and now BOA.

There was never any assignment to Countrywide or BOA, since MERS record keeps this info, but doesn't register this info with the county clerk's office.
I did not have an option to reaffirm the second.

In light of the recent news regarding MERS, I'm wondering if I should continue voluntary payments with my second mortgage with BOA, have a forensic loan analysis done or just stop making payments, see what happens and challenge the legality of the Deed of Trust if MERS trys to foreclose.

POMONA

[CCCrazy]

After your first mortgage, how much equity is in your house? What's the balance due on your second mortgage? After looking at those numbers, would it be worth BoA to foreclose on you? If not, then stop paying it, and save those funds to attempt settling with them for about ten percent of the balance due.

[DeadManCrawling]

MERS is a confusing concept at first.

In the early days of the foreclosure boom, MERS would be party to foreclosure cases. This was challenged, successfully in some districts, but MERS ultimately prevailed in almost all of the cases, along with the lender. The original cases are easy to find via search.

To avoid future complications, MERS and the lenders set up a different plan. As noted above, immediately prior to foreclosure being initiated, MERS simply assigns the lien to the lender who then forecloses. I had this exact thing happen last month with BoA. MERS transferred the lien to them, they initiated foreclosure on us.

That, seemingly, removes a lot, if not all, of the potential methods for the debtor to fight based on who holds the lien. There are still people trying to use the "where's the note" strategy, but with less and less success. One way lenders are fighting that particular avenue: My lis pendens had a copy of the original instrument attached. We could, of course, demand to see the actual original, not a copy, but my attorney says this is really futile and may anger the judge.

Lenders and MERS seem to have recovered from those cases of a few years ago that used exotic or "gamble" type strategies to delay foreclosure.