Court Rules Unrecorded Mortgages Received Through The FDIC Receivership Of WaMu Are Voidable
Steve Dibert, MFI-Miami
On the Friday before Christmas, while the media was focused on the funerals of the victims of the Sandy Hook massacre and pre-Christmas retail sales figures, the Michigan Supreme Court quietly handed down a significant ruling that will affect nearly $3.75 billion worth of mortgages former Washington Mutual mortgages that JPMorgan Chase acquired from the FDIC after Washington Mutual went into FDIC receivership in 2008.
The Michigan Supreme Court upheld a Michigan Court of Appeals ruling from January that calls for a strict interpretation of a Michigan law that states that if a foreclosing party is not the originating note holder they must be able to show a record chain of the mortgage.
MCL 600.3204(3) states:
If the party foreclosing a mortgage by advertisement is not the original mortgagee, a record chain of title shall exist prior to the date of sale under section 3216 evidencing the assignment of the mortgage to the party foreclosing the mortgage.
In Kim v. J.P. Morgan Chase, Chase claimed the requirements under MCL600.3204(3) do not apply because JPMorgan Chase acquired the loan “by operation of law”. What this means is JPMorgan chase is claiming is they don’t need to show a recorded chain of ownership because they acquired the note through their acquisition of Washington Mutual’s assets after Washington Mutual was placed into FDIC receivership in 2008. The Court of Appeals disagreed and said that a claim of “by operation of law” could only be claimed by the FDIC and that a mortgage assignment from the FDIC to JPMorgan Chase still had to be properly recorded with the Register of Deeds.
The Michigan Supreme Court in their 4-3 ruling states that the mortgages are currently unenforceable because JPMorgan Chase can not claim operation of law. The court ruled JPMorgan Chase did not acquire Washington Mutual as a corporate entity. Instead they acquired assets of the company through a third party. Therefore a chain of ownership must be recorded with the Register of Deeds where the property is located. However, the courts ruling did leave open the possibility that JPMorgan Chase could go back and record a mortgage assignment. However, JPMorgan Chase faces two major obstacles in doing so. The first being if when the FDIC has concluded the liquidation of Washington Mutual and damages owed to homeowners they may have already illegally evicted from their homes.
This ruling could affect as many as many as 40,000 Washington Mutual mortgages in Michigan that JPMorgan Chase acquired from the FDIC. It is unknown if JPMorgan Chase will seek damages from the law firms aka foreclosure mills that were either hired directly or indirectly by JPMorgan Chase to handle recording these documents and execute the foreclosures.