How to Determine if an Assignment of Mortgage Is Backdated

Lenders must properly document assignments of mortgages.

You do not have to relinquish your house immediately if you receive a foreclosure notice. The mortgagee that holds your mortgage must prove that it has legal standing to foreclose upon you. A backdated assignment of mortgage could make it harder for your mortgagee to substantiate their claim. You may be able to force your mortgagee to negotiate or to slow foreclosure proceedings by contesting an assignment of mortgage if it may be backdated.

Things You'll Need

• Mortgage documents
• Foreclosure notice

Instructions

1. Review your copy of your mortgage for any references to Mortgage Electronic Registration System (MERS). Lenders and investors use MERS to assign mortgages. Homeowners have challenged its abilities and accuracy in court.

2. Contact your local court to find where your mortgage and related documents are filed. You may be able to search public records online.

3. Check your local court for documents related to your mortgage that were filed after you closed on the purchase or refinancing of your home. Search by your name. Documents should be grouped together under your name, a common record number or similar filing method.

4. Search your documents for an assignment of mortgage. You may find an assignment that was filed soon after your closing because lenders commonly use them to bundle mortgages and to sell them to investors. There may be more than one assignment of mortgage as investors buy and sell your debt.

5. Compare the filing date of your most recent assignment of mortgage to the date on the notice of foreclosure. Your assignment of mortgage may be backdated if the foreclosure notice was filed first, even if the assignment contains a preforeclosure “effective date.”

6. Check your assignment of mortgage for a signature. Homeowners have proven that assignments of mortgage were invalid because they were unsigned or not signed properly.

7. Read your assignment of mortgage for explicit references to the ability of its current holder to assign it to another entity and the date on which it did so.

Tips & Warnings

• Contact an attorney if your mortgagee has foreclosed. Consider your options.

• Proving your assignment of mortgage was backdated may not stop foreclosure or eviction.

References

• Securities Industry and Financial Markets Association: Massachusetts Supreme Judicial Court Foreclosure Decisions
• Florida Supreme Court: Roman Pino v. The Bank of New York Mellon -- Petitioner's Initial Brief on the Merits
• Northeastern University Law Journal: Regaining the Wonderful Life of Homeownership Postforeclosure

Resources

• Homeownership Preservation Foundation
• Homeownership Preservation Foundation: Government and Financial Industry Resources