MERS and Foreclosures

[Taylor Ernster]

Hey all,

I am looking at a property that is going to the sheriff sale. I'm having a tough time evaluating the O & E report that was provided by the title company. Can anyone help me out with it? 

1. Mortgage dated September 30, 2013, executed by DP JR. and SP , husband and wife, to Wells Fargo Bank, N.A. for the principal sum of
$112,450.20 and interest thereon, if any, filed on October 3, 2013 and recorded in Book
161, page 8872.

2. Loan Modification Agreement (Mortgage) dated February 23, 2016, executed by and
between DP JR AND SP , and Wells Fargo Bank, N.A.,
filed on April 5, 2016 and recorded in Book 165 of Mortgages on page 1975.

3. Mortgage dated January 19, 2007, executed byDP JR AND SP, husband and wife, to MERS (Mortgage Electronic
Registration Systems Inc.) solely as nominee for Capital One Home Loans, LLC, lender,
for the principal sum of $88,450.00 and interest, filed on February 8, 2007 and recorded
in Book 150 of Mortgages on page 1107.

4. Subordination Agreement executed by and between Mortgage Electronic Registration
Systems, Inc. and Wells Fargo Bank, N.A., filed on October 3, 2013 and recorded in
Book 161 of Mortgages on page 8873.

5. Lis Pendens executed by Wells Fargo Bank, N.A., Plaintiff(s), versus, DP JR AND SP.: Any person in possession; Mortgage Electronic
Registration Systems, Inc., Defendant(s), dated January 26, 2017, filed January 30, 2017
and recorded in Book 10 of Lis Pendens on page 264.

6. Judgment filed January 26, 2017, against DP JR AND SP.
and Mortgage Electronic Registration Systems, Inc., in favor of Wells Fargo Bank, N.A.,
in the amount of $84,905.88, plus costs and interest, if any. File No. XXX XX-XX

I am thinking that the Subordination agreement  between WF and MERS moved the priority of the WF mortgage to the #1 priority even though the MERS as nominee for Capital One Home Loans was dated first. Is there anyway to verify this and what does it means MERS solely as nominee for Capital One Home Loans?

The Lis Pendens calls out Mortgage Electronics Registration systems but I am not sure if that mortgage gets wiped or not. Can pro's out there have an opinion?

Taylor

[Brett Goldsmith]

From my experience usually arrears are capitalized into the loan and do not become a separate lien unless if the note is insured by FHA which many times HUD will allow the arrears to become a subordinate lien on the property in the form of a partial claim.

A senior lien would want a subordination agreement with the other lien holder to ensure they stay in senior position. I've seen a 1st lien get approved as a loan modification but the junior lien not provide a subordinate agreement; therefore the 1st would not implement the final modification even after the trail plan payments were made.