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Case dismissals for lack of standing to Foreclose |
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MSFraud Forum Crosslinks, Findings and Case citations add to Ohio Federal Court Case Discussions by William A. Roper Jr. |
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California Cases |
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Caporale v. Saxon, Deutsche Bank, Morgan Stanley - Judge Weissbrodt - Order Preliminary Injunction - Daughter-in-law letter to judge - Caporale Memo in Opposition to Motion to Lift Stay - Docket
In Re: Vargas - MERS (relief from stay Denied) Judge Bufford (explains authenticity of documents)
Dimrock v. Emerald Properties (Opinion: unlawful detainer/quiet title)
SAXON
MORTGAGE SERVICES, INC.,
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Florida Cases |
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DLJ MORTGAGE CAPITAL, INC., NEW CENTURY MORTGAGE CORPORATION, SELECT PORTFOLIO SERVICING, INC. and FLORIDA DEFAULT LAW GROUP v. Thornberry - ORDER REGARDING PLAINTIFF'S MOTION TO RE-ESTABLISH NOTE - DLJ Mortgage's mortgage foreclosure Complaint
Deutsche Bank's Summary Judgment Denied
IndyMac v. Rogers (Rogers Motion to Dismiss GRANTED), March 2010, PINELLAS COUNTY
Bac Funding Consortium v. Jacques, U.S. Bank, C-Bass (U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage. App. Court reversed SJ)
VERIZZO v. Bank of New York MERS (Summary Judgment REVERSED & REMANDED, late notice, flawed chain of assignments)
Verizzo v. Bank of New York (Order of Dismissal against BONY) ("based on the late service and filing of the summary judgment evidence and the existence of a genuine issue of material fact, we reverse the final summary judgment and remand for further proceedings.")
Wells Fargo v. Chesney [While "non-negotiable" instruments may also be assigned, there is no assignment attached to the Complaint. The Note and Mortgage attached to the Compliant are made in favor of Washington Mutual, not the current Plaintiff, Wells Fargo.]
Wells Fargo v. Cirigliano (3/10) (No evidence to show a chain of title of how the note got transferred to Wells Fargo.)
U.S. Bank v. Harpster (3/10) (Notary fraud, assignment fraud, fraud upon the court, dismissed with prejudice) Judge Tepper
GMAC v. Visicaro (4/10) (Hearing, judge sets aside his previous grant of summary judgment) Judge Rondolino
Riggs v. Aurora Loan Servicing (4/21/2010) (Court of Appeals the endorsement in blank is unsigned and unauthenticated, creating a genuine issue of material fact as to whether Aurora is the lawful owner and holder of the note and/or mortgage. As in BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), there are n o supporting affidavits or deposition testimony in the record to establish that Aurora validly owns and holds the note and mortgage, no evidence of an assignment to Aurora, no proof of purchase of the debt nor any other evidence of an effective transfer. Thus, we reverse the summary judgment and remand for further proceedings.
U.S. Bank v. McLeod (May 7, 2010 - Judge Traynor) (Order Vacated - Dismissed w/prejudice, possible sanctions)
HSBC Bank v. Eslava - (Transcript on Hearing To Show Cause on May 7, 2010 - Judge Jennifer Bailey) (The note, which was canceled by this court pursuant to a final judgment is null and void. Mr. Eslava is relieved of the debt. The title shall be conveyed back to Mr. Eslava by the bank -- by the trust, as the legal liability for the note no longer exists.
BAC v. Box (6/3/2010) (Arthur B. Federman - Bankruptcy Judge) (Trustee opposed BAC's request for relief from automatic stay. BAC's motion is DENIED.)
U.S. Bank v. Troche (May/2010) (Order setting aside judgment and sale.)
HSBC v Ruscalleda (June 9 2010) (Based on the unique circumstances of this case, we conclude that the trial court abused its discretion by denying the motion to continue the final summary judgment hearing and by failing to grant the motion to transfer the foreclosure action to the division where a separate foreclosure action was pending in which another bank was simultaneously seeking to foreclose the same mortgage.
Aurora, MERS v. Da Costa (4/2010) ("[T]he plaintiffs lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed." There is no evidence of record that establishes that MERS was authorized to assign anything to Plaintiff, and therefore, the assignment was invalid. Even if the assignment were valid, it was not executed until after the complaint was filed. Therefore, Plaintiff s standing at the inception of the case was based entirely on the complaint and the exhibits attached thereto. It appears on the face of those exhibits that an entity other than Plaintiff has standing, and those exhibits control over contrary allegations contained in either version of the complaint. Plaintiff lacks standing now based on the substantive deficiencies with an assignment from MERS. Plaintiff lacked standing at the inception of the case based on those substantive deficiencies and the timing of the execution of the assignment. Absent standing, there is no justiciable controversy between the parties, and this case must be dismissed.)
IndyMac v. Keyser (June 2010) (Judgment and sale set aside.) A CASE OF SPECIAL INTEREST TO FLORIDA FORECLOSURE DEFENSE LAWYERS. BY LYNN E. SZYMONIAK (June 2010) [t]he Court finds the plaintiff lacks standing and is not a proper party to the suit. The Court has been misled by the Plaintiff from the beginning. In its initial Complaint, the Plaintiff alleged it owned the note that was lost. Then Plaintiff alleged that not only was the lost Note found, but the Plaintiff actually owned the Note by Assignment. After both of these Complaints were dismissed, Plaintiff then alleged that Wells Fargo owned the Note, while the Plaintiff was merely a servicer of the loan. Moreover, the Assignment on which Plaintiff relied in its First Amended Complaint postdates the filing of this foreclosure action and is inconsistent with the Mortgage, Note, stamps allegedly affixed to the Note, and the Allonge.
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New York Cases |
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Supplemental research by William A. Roper Jr. American Brokers Conduit v. ZAMALLOA - Judge SCHACK 11Sep2007 Countrywide Home Loans, Inc. v Taylor - Mayer, J., Supreme Court, Suffolk County / Sept. 2007 American Brokers Conduit v. ZAMALLOA - Judge SCHACK 28Jan2008 Aurora Loan Services v. MACPHERSON - Judge FARNETI 11Mar2008 Bank of New York v. SINGH - Judge KURTZ 14Dec2007 Bank of New York v. TORRES - Judge COSTELLO 11Mar2008 Bank of New York v. OROSCO - Judge SCHACK 19Nov2007 CitiMortgage Inc. v. BROWN - Judge FARNETI 13Mar2008 Countrywide Mortgage v. BERLIUK - Judge COSTELLO 13Mar2008 Deutsche Bank v. Barnes-Judgment Entry Deutsche Bank v. Barnes-Withdrawal of Objections and Motion to Dismiss Deutsche Bank v. ALEMANY Judge COSTELLO 07Jan2008 Deutsche Bank v. Benjamin CRUZ - JudgeKURTZ 21May2008 Deutsche Bank v. Yobanna CRUZ - Judge KURTZ 21May2008 Deutsche Bank v. CABAROY - Judge COSTELLO 02Apr2008 he Bank v. CASTELLANOS / 2007NYSlipOp50978U/- Judge SCHACK 11May2007 HE Bank v. CASTELLANOS/ 2008NYSlipOp50033U/ - Judge SCHACK 14Jan2008 HSBC v. Valentin - Judge SCHACK calls them liars and dismisses WITH prejudice ** Deutsche Bank v. CLOUDEN / 2007NYSlipOp51767U/ Judge SCHACK 18Sep2007 Deutsche Bank v. EZAGUI - Judge SCHACK 21Dec2007 Deutsche Bank v. GRANT - Judge SCHACK 25Apr2008 Deutsche Bank v. HARRIS - Judge SCHACK 05Feb2008 Deutsche Bank v. LaCrosse,Cede,DTC Complaint Deutsche Bank v. NICHOLLS - Judge KURTZ 21May2008 Deutsche Bank v. RYAN - Judge KURTZ 29Jan2008 Deutsche Bank v. SAMPSON - Judge KURTZ 16Jan2008 Deutsche v. Marche - Order to Show Cause to VACATE Judgment of Foreclosure - 11June2009 GMAC Mortgage LLC v. MATTHEWS - Judge KURTZ 10Jan2008 GMAC Mortgage LLC v. SERAFINE - Judge COSTELLO 08Jan2008 HSBC Bank USA NA v. CIPRIANI Judge COSTELLO 08Jan2008 HSBC Bank USA NA v. JACK - Judge COSTELLO 02Apr2008 IndyMac Bank FSB v. RODNEY-ROSS - Judge KURTZ 15Jan2008 LaSalle Bank NA v. CHARLEUS - Judge KURTZ 03Jan2008 LaSalle Bank NA v. SMALLS - Judge KURTZ 03Jan2008 PHH Mortgage Corp v. BARBER - Judge KURTZ 15Jan2008 Property Asset Management v. HUAYTA 05Dec2007 Services LLC v. SATTAR / 2007NYSlipOp51895U/ - Judge SCHACK 09Oct2007 U.S. Bank NA v. AUGUSTE - Judge KURTZ 27Nov2007 U.S. Bank NA v. GRANT - Judge KURTZ 14Dec2007 U.S. Bank NA v. ROUNDTREE - Judge BURKE 11Oct2007 U.S. Bank NA v. VILLARUEL - Judge KURTZ 01Feb2008 Wells Fargo Bank NA v. HAMPTON - Judge KURTZ 03Jan2008 Wells Fargo, Litton Loan v. Farmer WITH PREJUDICE Judge Schack June2008 Wells Fargo v. Reyes WITH PREJUDICE, Fraud on Court & Sanctions Judge Schack June2008 Deutsche Bank v. Peabody Judge Nolan (Regulation Z) Indymac Bank,FSB v. Boyd - Schack J. January 2009 Indymac Bank, FSB v. Bethley - Schack, J. February 2009 (The tale of many hats) Indymac Bank, v. Yano-Horoski -Judge Blasts Bank's Foreclosure Conduct and Cancels Mortgage. LaSalle Bank Natl. Assn. v Ahearn - Appellate Division, Third Department (Pro Se)\ NEW JERSEY COURT DISMISSES FORECLOSURE FILED BY DEUTSCHE BANK FOR FAILURE TO PROVIDE DISCOVERY AS TO OWNER AND HOLDER OF NOTE, SECURITIZED TRUST DOCUMENTS, AND OTHER DOCUMENTS DEMANDED BY BORROWERS
HSBC Bank USA v Miller 2009 NY Slip Op 29444 / Decided on October 29, 2009 / Meddaugh, J.
Lasalle Bank v. Smith, MERS (Judge Schack - March 22, 2010)
Wells Fargo Bank, Americas Servicing Company, MERS v Hunte (Judge Schack, Apr.14, 2010/ Dismissed with prejudice, possible sanctions.) (The court "discovered that WELLS FARGO executed a satisfaction of the instant mortgage more than ten months ago." "The Court is gravely concerned that: it expended scarce resources on an action that should have been discontinued." “the Court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct.")
Chase v. Johnson (Judge Schack May 4, 2010) (vacated judgment of foreclosure and sale with prejudice as plaintiff lacked standing.)
OneWest Bank v. Cullen (Judge Zwack - March 3, 2010) (The Court finds that OneWest has failed to establish it has standing and dismissed the complaint.) |
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Ohio Cases |
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Interim Findings of Effects of Ohio Standing Rulings |
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Kidd,Wells v. U.S. Bank, Ocwen, MERS, Aegis - Memorandum Opinion
Motions for Relief from Stay Update: Endorsement of Note by alleged Attorney-in-Fact
Memo to All Attorneys on Motions for Relief from Stay
Tips for How a Motion for Relief from Stay Can Proceed Smoothly Through the Court
Partial Transcript of Hearing on Special Motions Docket
Wells Fargo v. Jordan* -Wells Memorandum in Support of Jurisdiction to Ohio Supreme Court - Amicus brief of The Legal Aid Society of Cleveland in support of Jordan - Ohio Supreme Court declines jurisdiction!
National City v. Richards - Notice of Default
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Whittiker v. Deutsche (MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS) Whittiker (PLAINTIFFS’ OBJECTIONS TO REPORT AND RECOMMENDATION) Whittiker (DEFENDANT WELTMAN, WEINBERG & REIS CO., LPA’S RESPONSE TO PLAINTIFFS’ OBJECTIONS TO REPORT AND RECOMMENDATION) Whittiker (RESPONSE TO PLAINTIFFS’ OBJECTIONS TO MAGISTRATE JUDGE PEARSON’S REPORT AND RECOMMENDATION TO GRANT ITS MOTION TO DISMISS)
Novastar v. Snyder* (lack of standing) Snyder (motion to amend w/prejudice) Snyder (response to amend)
Wells Fargo v. Byrd* ("Putting the Cart before the House") Ohio 2008 (Reversed), Judge DINKELACKER
Washington Mutual v. City of Cleveland (WAMU's motion to dismiss)
2008-Ohio-1177; DLJ Mtge. Capital, Inc. v. Parsons (SJ Reversed for lack of standing)
No Note - Ohio 3/20/08
Great Decision - Everhome v. Rowland
Deutsche - Class Action (RICO) Bank of New York v. TORRES - Judge COSTELLO 11Mar2008 - Deutsche Bank Answer Whittiker
Judge Holschuh- Show cause Judge Holschuh- Dismissal of 15 cases (Plaintiffs and Counsel are hereby advised that, if these cases are refiled, Plaintiffs must establish their standing, and Counsel must comply with the Order’s requirements. Failure to do so a second time may result in a dismissal with prejudice.)
Judge Boyko's Deutsche Bank Foreclosures
Rose Complaint for Foreclosure
Wells Fargo - Defective pleading
Complaint in Jack v. MERS, Citi, Deutsche
FLAGSTAR BANK vs. MOORE (JUDGMENT: REVERSED AND REMANDED) Judge McMonagle (Feb 5, 2010) Bank of New York v. Gindele Bank of New York failed to establish an enforceable interest that existed at the time it filed suit. (BONY summary judgment REVERSED and REMANDED) Ohio 2/19/2010 Bank of New York Mellon v. Stout (BONY unregistered - Brief in Support of Motion to Dismiss) Chase v. Banker (Chase's assignments of error are meritless. Since the transfer of property to Smith was void for lack of jurisdiction, the mortgage to Chase was also void. Accordingly, the judgment of the trial court is affirmed. |
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Lack of Standing cases in other States |
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Arizona: GMAC v. Weisband (3/2010 - Arizona Bankruptcy Court/Judge Eileen Hollowell) (GMAC has failed to demonstrate that it is the holder of the Note because, while it was in possession of the Note at the evidentiary hearing, it failed to demonstrate that the Note is properly payable to GMAC. Once the securities have been sold, the SPV is not actively involved. Neil Garfield |
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Arkansas Supreme Court: MERS v. Southwest (MERS does not have legal standing.) |
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Connecticut: Fleet v. Nazareth (2002- Appeal from Superior Court) We conclude, therefore, that the legislature did not intend to permit the holder of the mortgage, without having been assigned the note, the ability to foreclose on the property. The judgment is vacated and the case is remanded with direction to render judgment dismissing the action. |
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Idaho: MERS, Litton, HSBC, Fieldstone Mortgage, Citimortgage |
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Indiana: Elliot v. JPMorgan Chase Bank: Indiana Appellate Court reverses Chase/Ocwen's attempt to foreclose on a discharged/satisfied mortgage. |
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Kansas Supreme Court: MERS Landmark (Kesler) |
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Massachusetts: Robin_Hayes_v._Deutsche_Bank
U.S. Bank v. Ibanez_ Wells Fargo v. Larach Ibanez - Memorandum in Opposition to Plaintiff's Motion To Vacate |
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Missouri: BELLISTRI v. OCWEN (2009) (Ocwen lacked a legally cognizable interest in the property, and therefore, it has no standing to seek relief.)
BELLISTRI
v. OCWEN Appeal
(4/2010) Appeal
(4/2010) (Separation
of Note & Mortgage) (Missouri
Court of Appeals)
"In
the event that the note and the deed of trust are split, the note,
as a practical matter becomes unsecured. The practical effect of
splitting the deed of trust from the promissory note is to make it
impossible for the holder of the note to foreclose, unless the
holder of the deed of trust is the agent of the holder of the note.
Id. Without the agency relationship, the person holding only the
note lacks the power to foreclose in the event of default. The
person holding only the deed of trust will never experience default
because only the holder of the note is entitled to payment of the
underlying obligation. Id. The mortgage loan became ineffectual
when the note holder did not also hold the deed of trust." |
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Nevada: MERS crushed: In re Mitchell MERS Smackdown in Nevada: In re Hawkins |
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Texas: MERS v. Young / 2nd Circuit Court of Appeals |
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Vermont: MERS v. Johnson - DISMISSED for lack of standing. The Court’s Order, issued August 27, 2009, granting plaintiff’s Motion for Default Judgment against the defendants Frank and Ellen Johnston is VACATED. |
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