'Zombie notes' live to haunt deed transfers
David Cruz Jr. got what he believed was a great offer in a foreclosure lawsuit filed against him by giant mortgage lender Fannie Mae.
If Cruz deeded the modest Fort Myers investment house back to Fannie Mae, the government-backed company would release him from the loan's $123,750 note: the obligation underlying his mortgage.
He deeded the house back to Fannie Mae, but court records show he didn't get what he bargained for.
Now, experts say, he and thousands of others in Florida who took the same deal from Fannie are at risk of being stalked by a so-called "zombie note:" debt that appears dead and gone but still can come back to life.
Cruz, of Fort Lauderdale, is suing Fannie in Lee circuit court along with its loan servicer Bank of America and their attorney, Fort Lauderdale-based Law Office of Marshall C. Watson, which handled the foreclosure and the deed-back deal.
The lawsuit asks the defendants to produce the note and release Cruz's obligation to pay it.
Xiomara Cruz, David Cruz's attorney and ex-wife, said she's looked at court records from around the state and likely thousands of people were treated in the same way.
"He doesn't want the property back," Xiomara Cruz said. "It's not about that."
But the zombie note is another matter, she said: David Cruz could be liable for the money he borrowed to pay for the house.
"Under the commercial code, it's still alive," she said. "The deal he made was to cancel the note. If they can't perform, it's a fraud."
Xiomara Cruz said she hasn't been able to find out who owns the note.
"I really think someone is still holding that note and putting it on their asset sheet," she said.
Officials with Fannie Mae, Bank of America and Marshall Watson wouldn't comment.
Carol Kaplan, a spokeswoman for the Washington-based American Bankers Association, said leaving the note off the satisfaction of mortgage is "not a practice we've ever heard of."
April Charney, a Jacksonville-area legal aid attorney who's an expert on foreclosure issues, said it's likely Fannie has already sold the notes.