Judges Overturn Foreclosure Due To Lack Of Mortgage Assignment

by Andy Miofsky, Esq.

June 21, 2008

The 5th District Appellate Court of Illinois overturned a foreclosure judgment and order of sale on grounds that the plaintiff did not own the mortgage.  In Bayview Loan Servicing L.L.C. vs Jeffrey Eden Nelson, the three judge panel of Justice Stewart, Justice Goldenhersh and Justice Spomer, unanimously ruled that Bayview did not have the right to foreclose a mortgage owned by another entity.  Bayview was merely acting as the loan servicer.

In actual practice, many foreclosure cases are filed without proof that the plaintiff actually owns the mortgage.  Often, cases include an affidavit that the mortgage and note have been lost or cannot be found.  These cases slide through the system because very few defendants appear in court to challenge the foreclosure.  Default judgments are the norm.

In Bayview, defendant Nelson learned his mortgage had been assigned to a company named Bayview Financial Trading Group L.P. and he sucessfully contested the foreclosure.  For more on this case and to read the actual court decision, click on this link to my Illinois Foreclosure Attorney website.

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Andy Miofsky, Esq.

Andy Miofsky is an Illinois consumer rights lawyer with an office in Granite City Illinois. Andy represents people with bankruptcy and student loan debt problems throughout the Central and the Southern District of Illinois since 1979.

Last modified: October 21, 2011