A foreclosure action is a legal process in which a lender, whether a bank, credit union, commercial lender or private financier repossesses a property after the buyer/borrower has defaulted on the terms of the mortgage loan. In general, a foreclosure action can be initiated after the buyer/borrower has missed two to four consecutive monthly payments.
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In some courts, the foreclosing party must establish that it holds the note or is acting as the note holder’s authorized representative to foreclose. When it comes to assignments of mortgages (or assignments of deeds of trust), many courts follow the general rule that the mortgage follows the note.
Holding a mortgage refers to an agreement by the current owner to extend credit to a buyer purchasing their home. The buyer makes an agreed upon down payment and pays monthly loan payments directly to the seller instead of a bank.
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The Risks of Holding A Mortgage by Jeff Armstrong. A real estate note is a promise to pay a debt with the promise secured by a mortgage, trust deed, or other security instrument. Such a note, when properly constructed, can be sold by its holder to raise immediate cash.
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To have the authority to foreclose the mortgage (what lawyers call "standing"), a plaintiff must be the "holder" or "assignee" of the note. In the current environment where mortgage loans have frequently been bought, sold and securitized, confusion has sometimes ensued over who is the proper party to commence the foreclosure — or at least …
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