What is an Assignment of Mortgage?
An assignment of mortgage is a document which indicates that a mortgage has been transferred from the original lender or borrower to a third party. Such documents are more commonly seen when lenders sell mortgages to other lenders. When someone has what is known as an assumable mortgage, it is possible for the borrower to transfer the mortgage to another person, in which case an assignment of mortgage will need to be filed to record the transaction.
This document indicates that the loan obligation has been transferred. It usually describes the property so that there is no confusion about which piece of real estate is under discussion. It should include the name of the original party, along with the name of the third party, with contact information and the date that the assignment of mortgage becomes valid. In the case of an assignment of mortgage between lenders, the document notes the identity of the borrower, while assumed mortgages identify the lender and indicate that the transfer took place between borrowers.
Lenders routinely sell mortgages, and in fact a mortgage may be transferred multiple times before it has been paid off. Lenders are not required to notify borrowers when they sell mortgages, and borrowers do not have an opportunity to contest the sale. The new lender is required to send out a notification indicating that a sale took place and providing information about how to make mortgage payments to the new lender. The borrower may attempt to negotiate a change in terms, or if the borrower does not want to work with the new lender, it may be possible to apply for a new mortgage to pay off the old one.
With an assumable mortgage, the issue is a bit trickier. Lenders do not want borrowers to assign their mortgages to people who cannot keep up with the payments, as then they will be faced with having to foreclose and sell the property, and this adds to the expense of servicing the loan. As a result, people who wish to assume a mortgage must demonstrate that they are financially capable of taking on the loan, and that they fully understand the terms of the loan.
An assignment of mortgage will be filed in the same government office which handles ownership records, property taxes, and related matters. People should be aware that sometimes an assignment of mortgage is not recorded for several months, especially if there is a backlog of documenting material which needs to be gone through.
If borrowers receive a notice in the mail indicating that their mortgage has been transferred, they should call their lenders to confirm the sale and ask who the mortgage was sold to. It is also advisable to check the records office to confirm that an assignment of mortgage has been followed. Borrowers should be aware that some scammers prey on people by claiming that their mortgages have been transferred when this is not actually the case.
1) If somebody buys a primary mortgage and note from the original issuing bank, and if there is also a second mortgage or equity loan on the property, does the original primary mortgage remain primary?
2) In case of foreclosure or forced sale, does everything owed to the primary mortgage holder, including late fees, and taxes and insurance paid by the primary mortgage holder instead of by the defaulting property owner, get paid to that primary mortgage holder before any of the sale money goes to the second creditor?
In an Assignment of Mortgage and Note, there are three parties involved in the transaction. These are: the Assignor (Seller); the Assignee (Buyer); and the underlying maker of the mortgage and loan as the Payor. The Payor may have no say as to the assignment occurrence and is therefore a silent partner, however, they do have some participation since they are the party that will continue making future payments as may be due. Typically, a transaction between the Assignor/Seller and Assignee/Buyer should imply an arm's-length transaction, meaning that the Buyer is responsible for the due diligence involved to determine the Present Value of the future cash flow of payments as may be still due until the mortgage and note are paid off. What the Assignee/Buyer pays to the Assignor/Seller should be a function of a negotiated price, since the future cash flow value is a function of the number of payments due in the future, their frequency, interest rate payable, interest rate environment at the time of the transaction, as well as the future anticipated interest rate environment, the strength of the collateral value and the financial/credit strength of the Payor, etc (among many other factors to consider). In other words, the Assignee/Buyer is paying an amount at the assignment date closing upon which they expect a Return On Investment and the risk of collecting on their cash investment.
Now what I find interesting is (from what I have seen), that in an assignment, the Assignor and Assignee typically trust each other, in that the Assignor says the Payor owes so much on such and such a date, and has so many future payments. They can transfer the original mortgage and note since those documents are needed in their original form in order to foreclose upon the collateral and to establish claim standing. However, there is no proof of due diligence, and/ or to the transfer of underlying Payment History records, bookkeeping, etc. After all, how does Payor know what the hell the Assignor/Seller sold? What if they were faulty in their record keeping? What if they had practiced predatory lending and overcharged on interest, fees, etc., and/or just made mistakes (honest or not) on prior transactions to the Assignment? If the Assignee/Buyer doesn’t do a complete due diligence analysis, how do they know what they are buying and if it is correct?
In fact, some Assignments have recourse, while others do not. In the end, the parties to the Assignment have a duty to the Payor because it is their collateral they are handling and transferring, plus a fiduciary duty to maintain an accurate, sufficiently detailed payment history such as, but not necessarily limited to, what date where payments received and how they were handled and applied, as may involve principal reduction, principal pre-payment, interest accrued, and interest payment reduction, as well as taxes, insurance, costs, expenses and fees, etc. A Payor has a right to now how their mortgage payments are being handled, applied and amortized, and it is the responsibility of the Lender to maintain and document this upon reasonable demand.
In the end, if the Lender cannot provide a meaningful, sufficiently detailed, trustworthy and accurate payment history, they then cannot make a case to say what amount is owned at any given point in time, whether it is for the Assignment or when they make claim for a payoff or a foreclosure lawsuit action.
Yes, the Lenders issue an affidavit from someone who works and has duty only to the Lender, who says they are the keeper/custodian of the records, and they say what is owed. Well crap on them, because they had better handled, or been employed continuously through the period of the payment history so they can accurately attest to it. Otherwise they cannot say with any certainty the payment history is accurate. This is even more applicable after an Assignment has taken place.
Are they required to provide you a copy of your Assignment of Mortgage if requested?
A lender can only assign a mortgage to another lender. A mortgagee has the right to assign his mortgage to any person he likes, and yes this can trigger the "due on sale" clause; however the lender is only concerned that he has a performing loan, he doesn't care who is paying, particularly wit low interest rates and an increasing number of foreclosures.
How could anyone assign a mortgage that doesn't belong to "anyone" to someone else?, there are millions of those in America right now, what are the legal repercussions for someone that assists another to execute such transfer? it appears as an "extension" of an existing fraudulent transaction.
whats the point of doing a mortgage assignment if the loan balls stay the same?
If a borrower assigns their mortgage to another person, does this trigger the Due On Sale Clause in a Conventional, FHA, or other Mortgage? Is this fraud if it is not recorded
Anon86260- You are right. Mortgage fraud is one of the fastest growing crimes that the F.B.I. now investigates.
I just wanted to add that a site called Mega Dox offers an assignment of mortgage form.
It has to include the amount owed, the mortgage payment amount and due date as well as any liens or legal infractions against the property.
Maybe you should write something about fraudulent assignments of mortgages. There are many of them in the U.S. today.
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