by Calculated Risk on 10/13/2010 02:15:00 PM

First, "Foreclosure-Gate" is primarily about "robo-signers". These are individuals who signed affidavits stating that they had "personal knowledge" of the facts in the case when in fact they did not.

As JPM admitted this morning: "We've identified issues relating to the mortgage foreclosure affidavits and those include signers not having personally reviewed the underlying loan files but instead having relied upon the work of others."

There are also situations of questionable notarization of the affidavits.

Questions reporters might consider asking is what constitutes "personal knowledge" and why can't the affiant sign with "information and belief". Also what are the typical remedies for a false affidavit? But I digress ...

Unfortunately I've seen a number of articles conflating the "robo-signer" scandal with MERS issues and LNAs (Lost Note Affidavits). How many servicers have put a moratorium on foreclosures for these issues? None. But I do hope they are reviewing the entire process.

Fortunately, for those trying to understand LNAs, we have an excellent description of the process from my former co-blogger and mortgage banker Tanta written in early 2008: Lost Note Affidavits & Skeletons in the Closet. A few excerpts:

FCs are routinely filed with either a certified true copy of the promissory note or a Lost Note Affidavit (LNA), which in every instance I have ever personally seen is a sworn statement that the original note is lost, and is accompanied by a certified true copy of the lost original.
...
I note for y'all that I have personally executed one or two LNAs in my day, and have therefore had all known hard file folders associated with this loan (the servicing file, the branch's copy, the custodial file, whatever there is), as well as all correspondence with the warehouse bank or custodian or whoever else might have had it brought to my desk, so I could personally root through it all once more before I put my officer's signature on an LNA. In all but one of the LNAs I can remember executing, I had documentation from FedEx or some other shipper that a package had indeed been lost, plus clear documentation in the loan file that this specific note had been included in that specific lost shipment. (My shipping department always put the copy of the airbill in the loan file. Always.) And of course I always had a certified true and correct copy of the note to attach to the affidavit.

I bring all this up because ... not only can original notes be lost or damaged, so can car titles and any other piece of paper. (I have a friend who once had to execute over 100 LNAs after a fire in an adjoining office suite triggered the sprinkler system in her post-closing department. Those LNAs were accompanied by copies of sodden bits of semi-readable paper that had been patched together on the copier plate, one at a time.) A financial institution in the business of making mortgage loans has no business routinely losing or damaging original promissory notes, and any institution that does so should be shut down by the federal regulators and I mean that.

But if consumer attorneys want to create a situation in which the simple fact of loss of or irreparable damage to an original note vacates the debt, I can promise you you will not like the consequences of that. If it turns into Total War here, don't ever lose an original cancelled check. You should know that there is actually one fairly respectable reason for doing FC filings with note copies, besides servicer laziness or loan sale screw-ups: taking your original note out of the custodian's vault to send to some local attorney to attach to a court filing creates several more opportunities for it to get lost. If it becomes a requirement that FC can proceed only with the original note in the courtroom, and the presence of an LNA always means dismissal, then the things are going to have to be handled and shipped and received with the same level of security as a million-dollar bearer bond. Like, a Brink's truck and a bonded courier carrying a briefcase handcuffed to his wrist. You want to pay the cost of that? No. You don't. But you will.

There is much more in her piece (she was writing about a specific case in Florida).