by Philip Q. Ratliff, Esq.
July 31, 2011 – The 21st judicial circuit in Kentucky, which encompasses the Counties of Bath, Menifee, Montgomery and Rowan, issued a general order affecting the documentation required in all new foreclosure complaints filed after February 1, 2011. These changes may significantly affect foreclosure timelines in these Counties, including the first legal date. This general order is nearly identical to an order recently adopted in Kenton County, KY, and there is a good possibility that this requirement will spread to additional counties in the coming months. These changes are similar to the requirements adopted by many Ohio Courts in recent years.
Effective February 1, 2011 and thereafter, all new foreclosure complaints must include a copy of the note and all endorsements, a recorded copy of the mortgage, and a copy of any and all assignments of the note and mortgage. Most importantly, the assignment of the note and mortgage to the named plaintiff must be executed prior to the filing of the complaint. The assignment need not be recorded prior to the filing of the complaint, although it must be recorded prior to filing a motion for judgment.
In addition to the foregoing, the complaint must include an affidavit by plaintiff, its representative, its attorney or servicer (a) documenting that the named plaintiff is the holder of the note and mortgage at the time the complaint is filed, and (b) identifying plaintiff as either the original note and mortgage holder, or as an assignee, trustee or successor-in-interest of the original. Further, the order requires the complaint to include documentation establishing any succession of interest, such as a corporate merger, if applicable.
These rule changes magnify the importance of providing foreclosure counsel with copies of any and all endorsements, allonges, and executed assignments of mortgage with any foreclosure referral in counties referenced above, and copies of any pertinent corporate merger documents (assuming the merger documentation does not readily appear on state or federal websites).
On foreclosure referrals received by WWR for these four Counties, we will notify you promptly upon receipt of the preliminary title report, the need for an assignment or assignments before proceeding and, if requested by our client, will prepare and send the necessary assignment(s) for execution to our client.
If you have any questions on this matter, please contact Mr. Philip Q. Ratliff, Esq. Phil is an associate focused on foreclosure and eviction in the Real Estate Default Group of Weltman, Weinberg & Reis Co., LPA. He can be reached at 513.723.2215 or via email at firstname.lastname@example.org.