Legal Question in Real Estate Law in Florida

Mortgae foreclosure
My mother in law applied for a mortgage on a home she already owned and was supposed to get a fixed rate mortgage at 5%. At the time of the close, the mortgage papers stated that the mortgage was for a floating rate mortgage (approx 8% at todays rate). She informed the mortgage company of the error and the changes were made to the mortgage papers at the close. She was to be sent a copy of the mortgage papers with the changes but was not. It turns out the mortgage company insisted that there were no changes made at closing and would not let her see the document that she signed, only copies that do not have the changes. The mortgage was then sold to countrywide. She has been making payments at the floating rate while she continued to contact the mortgage broker and Countrywide about the problem. She has been told by Countrywide that she is not allowed to see the original documents. She has now fallen behind in payments and Countrywide has sued to foreclose. It turns out countrywide does not have the original paperwork and is asking the court to reinstate the Note based on a copy. Does she have grounds to ask the court not to grant the reinstatement since this is not the document she signed and the terms are are not correct?

Asked on 9/18/07, 10:11 am

2 Answers from Attorneys

Michael Markowitz Michael A. Markowitz, PC

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Re: Mortgae foreclosure

First, the mortgage signed by your mother in law had to have been filed with the County Clerk. So, you can go to the clerk to obtain a copy of what she signed.

Second, if the mortgage was not filed with the clerk, a title company should have been present at the closing to obtain and file the original mortgage. You should be able to obtain information from the title company.

Third, if Countrywide commenced a foreclosure action, you should be allowed to see a copy of the documents your mother in law signed.

Finally, if Countrywide cannot produce a signed mortgage, and a mortgage is not filed with the clerk, she would have grounds to oppose an unsigned document that was modified at the closing.

Mike.

Answered on 9/18/07, 1:21 pm

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