 |
|||
|
Case dismissals for lack of standing to Foreclose |
|||
|
Updated 2/13/14 |
|||
|
MSFraud Forum Crosslinks, Findings and Case citations add to Ohio Federal Court Case Discussions by William A. Roper Jr. Federal Practice Manual for Legal Aid Attorneys 3.1 STANDING The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff. At each stage of the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that burden. Standing must exist on the date the complaint is filed and throughout the litigation. Moreover, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte. Finally, plaintiffs must demonstrate standing for each claim and each request for relief. There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operative facts.
FORECLOSURE DEFENSE Winter 2011
|
|||
|
Repair Your Credit |
|||
|
“A party must have standing to file suit at its inception and may not remedy this defect by Venture Holdings & Acquisitions Grp.,LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011). _______________________________ Merit Decision: Court Smacks Freddie Mac in Home Foreclosure Case. Federal Home Loan Mortgage Corp. v. Schwartzwald.
For Andy Engel (Schwartzwald's attorney): As a practitioner focusing on foreclosure defense what is your thoughts (to be pro-active) for those who lost their home under the “cure,” to file a 60(B)(5) motion and place the new owner, title company and mortgage company on notice?
|
|||
Do NOT let this be a deterrent. Stand up for your rights.More Courts Reject Eleventh-Hour Attempts To Avoid Foreclosure Based On An Alleged Lack Of StandingTwo more Appellate Division panels have refused to allow defendant's in foreclosure lawsuits to raise standing as an eleventh-hour defense. As we previously reported -- Changing Tide in Forclosure Litigation? Courts Taking Closer Look When Defendants Assert Lack Of Standing At Last Minute -- there is now a clear trend against allowing defendants to stay silent in the face of a foreclosure lawsuit only to appear at the last minute, usually on the eve of a sheriff's sale, and seek to vacate final judgment based on an alleged lack of standing to foreclose. Two recent Appellate Division cases continue to bring this point home. In IndyMac Bank FSB v. DeCastro, [enhanced version available to lexis.com subscribers], a residential borrower moved to vacate final judgment and dismiss the complaint 15 months after it was entered, arguing that he was not served with the complaint. The motion was denied. Defendant filed a second motion to vacate, arguing, for the first time, that the bank lacked standing to foreclose because it was not assigned the mortgage until after the complaint was filed. This motion was denied as untimely and defendant appealed. In an opinion, dated March 13, 2013, the Appellate Division affirmed. In its decision, among other things, the Appellate Division rejected defendant's standing argument, noting: "[W]e have now made clear that lack of standing is not a meritorious defense to a foreclosure complaint." Moreover, the Appellate Division held that defendant's standing argument was meritless "particularly given defendant's unexcused, years-long delay in asserting that defense or any other claim." In arriving at this decision, the Appellate Division relied on many of the cases discussed in our prior post. Similarly, in Wells Fargo Bank, N.A. v. Lopez, [enhanced version available to lexis.com subscribers], a different Appellate Division panel rejected another residential home owner's last-minute attempt to raise standing as a defense to the foreclosure complaint. The facts in that case were a bit more egregious because the borrower contributed to the four-year delay between the entry of default and the filing of his motion to vacate by filing numerous bankruptcy petitions and seeking a stay to attempt to short sell the property. Nonetheless, the Appellate Division affirmed the trial court's denial of the motion to vacate holding, among other things, that the lack of standing, even if true, was not a meritorious defense to a foreclosure complaint, particularly in the post-judgment context. Again, the Appellate Division relied primarily on the cases included in our prior post. View more from the Porzio Real Property Blog. |
|||
|
New cases |
|||
|
New Mexico Supreme Court Ends BONY's 5-year Winning Streak
(2/13) Too much to highlight in this one. "We reverse the Court of Appeals and district court and remand to the district court with instructions to vacate its foreclosure judgment and todismiss the Bank of New York’s foreclosure action for lack of standing." How did this ever get past the trial court?
Citibank
v. McCray Significantly, there is no proof that Citibank held both the Mortgages and the Notes when it commenced this action.
Focht
v. Wells Fargo (Pro
se reversed on standing) (Florida 9/13) I concur in this decision because existing precedent requires me to do so.
Presumably, our mandate requires the dismissal of this foreclosure action, which in turn will undo the foreclosure sale. Ms. Focht will regain possession of her property and apparently continue her free use of the duplex while the lender continues to make advances to cover the expenses typically paid from escrow. Our certified question of great public importance is dispositive of this appeal and worthy of consideration by the supreme court.
Wright-Patt Credit Union
v. Byington (Ohio 9/13) Accordingly, because appellee failed to present the court with
evidentiary quality material in support of its assertion that it was the current holder of the note and
mortgage at issue, a genuine issue of material fact remains regarding whether appellee
has standing in this foreclosure action and the lower court erred in granting appellee
summary judgment. Given this conclusion, we need not address appellants’ argument
that appellee failed to meet the conditions precedent before filing suit. The sole
assignment of error is well-taken. Bank of New York Mellon v. Shaffer (Ohio 7/13) Opinion and dissent address late filing, void vs. void, standing and jurisdiction. Since the trial court lacked subject-matter jurisdiction and its BAC Home Loan Servicing v. Mapp (Ohio 7/13) We therefore reverse the trial court's finding that "BAC's alleged lack of standing does not constitute a meritorious defense" and remand the case to the trial court for a hearing to determine BAC's standing to sue, and correspondingly whether the trial court had jurisdiction over the foreclosure proceedings. On remand, the trial court must determine whether MERS had the authority to assign the mortgage and/or the note as the nominee for Countrywide in light of the claim that Countrywide was no longer in existence when the mortgage was assigned to BAC. "a common pleas court cannot substitute a real party in interest for |
|||
|
California Cases |
|||
|
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., Rickie Walker v. BAC, EMC Mortgage, Bear Stearns, Citibank, MERS (Full bankruptcy docs) (2010) Lack of Standing.
|
|||
|
Florida Cases |
|||
|
Brevard County Mortgage Foreclosure Procedures Focht v. Wells Fargo (Pro se reversed on standing) (Florida 9/13) I concur in this decision because existing precedent requires me to do so. Presumably, our mandate requires the dismissal of this foreclosure action, which in turn will undo the foreclosure sale. Ms. Focht will regain possession of her property and apparently continue her free use of the duplex while the lender continues to make advances to cover the expenses typically paid from escrow. Our certified question of great public importance is dispositive of this appeal and worthy of consideration by the supreme court. SAVER (pro se) v. JP MORGAN CHASE BANK, NATIONAL ASSOCIATION AS ACQUIRER OF CERTAIN ASSETS AND LIABILITIES OF WASHINGTON MUTUAL BANK FROM THE FEDERAL RECEIVER - Florida COA Reversed (5/15/13) Here, J P Morgan’s affidavits were executed after it filed suit. Additionally, they did not state when JP Morgan became the owner of the note nor did they indicate that JP Morgan was the owner of the note before it filed suit. Thus, JP Morgan failed to submit evidence that it held the mortgage at the time it filed suit, and the trial court erred in granting summary judgment in its favor. CROMARTY
v. WELLS FARGO (REVERSED)(Fla. 4-13) The borrowers argue that the note’s blank endorsement was undated and the bank’s evidence was insufficient to establish that it held the note and was entitled to enforce the note at the
time it filed suit.
RIGBY v. WELLS FARGO BANK (4/12) Original complaint only had a mortgage in favor of Option One attached. Later, Wells Fargo presented an assignment of mortgage and an undated original note with special endorsement to Wells Fargo and the trial court entered summary judgment in favor of Wells Fargo. Fourth DCA opined that Wells Fargo has to have standing at the inception of the lawsuit. Reversed and remanded.
Duke
V. HSBC (11/11)"The Dukes argued that at the time the foreclosure complaint was
filed, the mortgage was held by First NLC, not appellee, HSBC. In its complaint, HSBC alleged it owned and held the note and mortgage at the
time the complaint was filed. “W h e n exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the Feltus v. U.S. Bank (10/11) (Lost Note) We reverse because material issues of fact as to which entity holding the promissory note executed by Feltus existed at the time the trial court entered summary judgment. - U.S. Bank's reply to Feltus's affirmative defenses asserting that it was now in possession of the original note, which it attached to the reply. But the note attached to the complaint showed the lender to be Countrywide Bank, N.A. Khan v. Bank of America: (4/11) Because the exhibit to Bank of America’s amended complaint conflicts with its allegations concerning standing, Bank of America did not establish that it had standing to foreclose the mortgage as a matter of law. As a result, the trial court acted prematurely in entering the final summary judgment of foreclosure in favor of Bank of America. We, therefore, reverse the final summary judgment of foreclosure and remand for further proceedings. Bank of America v. Nebraska Investments (1/28/11) This case is DISMISSED without prejudice. No other pleadings by the plaintiff will be permitted in this case, other than a request for rehearing if appropriate. It is confiscatory of the Court's time to have to address this matter.
BAC
Funding v. Jacques, U.S. Bank (2/12) U.S. Bank filed a written response to BAC's motion to dismiss. Attached
as Exhibit A to this response was an "Assignment of Mortgage." However, the space
for the name of the assignee on this "assignment" was blank, and the "assignment" was
neither signed nor notarized. Further, U.S. Bank did not attach or file any document
that would authenticate this "assignment" or otherwise render it admissible into
Deutsche Bank v. Lippi (2/2010) (Defendant's Amended Motion to Dismiss the Pleadings of Plaintiff is GRANTED with prejudice because over a two year period Plaintiff failed to allege or provide documents demonstrating its right to bring this action. Independently, Defendant's Amended Motion to Dismiss the Pleadings of Plaintiff is GRANTED as a sanction under the dictates of the Ham decision and its progeny.
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 (Update from Thornberry: 10/17/10 - The bank continued to come back and the 5th judge in the matter REVERSED the Dismissed with Prejudice that I won. I am still fighting this injustice!!!! The first judge DWP without a hearing for lack of standing - no note due to FL STAT 71.011. but bank got latest judge to overturn BECAUSE the DWP was done sua sponte, w/o a hearing but quotes no FL STAT or code that states a hearing is mandatory when dealing with dismissal due to lack of SMJ.)
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) - Bac Initial Brief in Jacques
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.)
M&T BANK v. Smith - 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.
BAC/Countrywide v. Stentz - (12/10) (6th Circuit, Pasco County, Florida) Motion to Dismiss Granted with a redo option. "A thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.” - Judge Tepper
Lindsey v. Wells Fargo (Wetherell J.2009) The Assignment of Mortgage did not purport to transfer the note, and the original note filed with the court did not include a special endorsement to Wells Fargo or a blank endorsement.
|
|||
|
New York / New Jersey Cases |
|||
|
Citibank v. McCray Significantly, there is no proof that Citibank held both the Mortgages and the Notes when it commenced this action.
Capacity and/or Standing to Sue; and REMICS require ORIGINALSWells Fargo v. Erobobo **(NY 4/13) (Instructional) There is a difference between the capacity to sue which gives the right to come into court, and possession of a cause of action which gives the right to relief. Incapacity to sue is not the same as insufficiency of facts to sue upon. In Article II, section 2.01 Conveyance of Mortgage Loans, the PSA requires that the Depositor deliver and deposit with the Trustee the original note, the original mortgage and an original assignment.
U.S. Natl. Assn. v Said
(Supreme Court, Queens County)(1-13)
New York Mtge. Trust v Dasdemir (11/12) (New York/Schack)(Nathan Reese's assignment of the subject mortgage and note to NYMT, for MERS, as nominee for NYMC, in the instant foreclosure action is without legal authority. Therefore, plaintiff NYMT could not be the holder of the subject mortgage and note when the action commenced. Thus, plaintiff NYMT lacked standing to commence the instant foreclosure action.
HSBC v. PUCCINI
6/12 (New York)
Deutsche Bank v. Cuesta (6/12)(New York) ORDERED that this motion by defendant Deutsche Bank National Trust Company, as Trustee for Fremont Home Loan Series 2006-3 (Deutsche Bank) for summary judgment on its first counterclaim against plaintiff, declaring that Deutsche Bank is the lawful owner and holder of a valid first mortgage against the subject premises, declaring that the credit line mortgage was paid in full and is discharged and satisfied of record, and declaring that plaintiff and all persons claiming by, through and under it be forever barred from all claims to an estate or interest in the subject premises, and granting defendant Deutsche Bank summary judgment dismissing the complaint as against it and cancelling the notice of pendency filed by plaintiff is denied.
U.S. Bank v. Dellarmo (Standing-NY Sup.Ct.)(4/12) "In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" (Bank of N.Y. v Silverberg, 86 AD3d 274, 279; see Countrywide Home Loans, Inc. v Gress, 68 AD3d 709). Where a defendant raises the issue of standing, the plaintiff must prove its standing to be entitled to relief (see CitiMortgage, Inc. v Rosenthal, 88 AD3d 759; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753). Moreover, while assignment of a promissory note also effectuates assignment of the mortgage (see Bank of N.Y. Silverberg, 86 AD3d at 280; U.S. Bank, N.A. v Collymore, 68 AD3d at 753-754; Mortgage Elec. Registration Sys., Inc. v Coakley, ), the converse is not true: since a mortgage is merely security for a debt, it cannot exist independently of the debt, and thus, a transfer or assignment of only the mortgage without the debt is a nullity and no interest is acquired by it (see Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636; Bank of N.Y. v Silverberg, 86 AD3d at 280). The failure to record an assignment prior to the commencement of the action is not necessarily fatal since "an assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery" (Bank of N.Y. v Silverberg, 86 AD3d at 280; see Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636; U.S. Bank, N.A. v Collymore, 68 AD3d at 754; LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912).
Citimortgage
v. Stosel
(Standing
- NY)(11/11) A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note, “either by physical delivery or execution of a written assignment prior to the commencement of the action” (Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 108).
Moreover, “an assignment of the mortgage without assignment of the underlying note or bond is a nullity” (U.S. Bank, N.A. v. Collymore, 68 AD3d at 754;
see Bank of N.Y. v. Silverberg, 86 AD3d 274, 280).
Wells Fargo v McNee (11/11) As the First Department held in Katz v. East-Ville Realty Co., (249 AD2d 243, 243), a “[p]laintiff’s attempt to foreclose upon a mortgage in which he had no legal or equitable interest [is] without foundation in law or fact” (see Kluge v. Fugazy, 145 AD2d 537). Hence, Wells Fargo’s attempt to foreclose upon the subject mortgage must be denied, the complaint dismissed, and McNee’s cross-motion(s) to dismiss for lack of standing pursuant to CPLR 3211(a)(3) granted.
Downey v. Trujillo (8/11)(Schack) Dismissed with prejudice. Schack was angered after lawyer Margaret Carucci said in a sworn affidavit that a Downey Savings & Loan officer on Dec. 24, 2010 claimed to have personally reviewed and could vouch for the accuracy of the paperwork underlying Trujillo's foreclosure -- although Downey had long ceased to exist.
Deutsche Bank v. Mitchell(8/11) Summary judgment reversed - sale vacated. The assignment was not perfected until after the filing of the complaint, and plaintiff presented no evidence of having possessed the underlying note prior to filing the complaint. If plaintiff did not have the note when it filed the original complaint, it lacked standing to do so, and it could not obtain standing by filing an amended complaint. We vacate the sheriff's sale, the final judgment and the order granting summary judgment and remand to the trial court.
Bank
of New York v. Silverberg* (6/11)
This matter involves the enforcement of the rules that govern real
property and whether such rules should be bent to accommodate a system that has taken
on a life of its own. The issue presented on this appeal is whether a party has standing to
commence a foreclosure action when that party's assignor—in this case,
Mortgage Electronic Registration Systems, Inc. (hereinafter MERS)—was listed in the underlying
mortgage instruments as a nominee and mortgagee for the purpose of recording, but was
Accordingly, the Supreme Court should have granted the defendants' motion
Deutsche
Bank v. Francis (Dismissed
With Prejudice-Schack)(3/11): I discovered that there is no record of plaintiff DEUTSCHE BANK ever owning the subject mortgage and note. A want of "standing to sue," in other words, is just another
way of saying that this particular plaintiff is not involved in a genuine
controversy, and a simple syllogism takes us from there to a "jurisdictional"
dismissal: (1) the courts have jurisdiction only over controversies; (2) a
Johnston v. HSBC** ((complaint), (extrinsic fraud, real party) (3/11) Extrinsic Fraud: Because the fraud is extrinsic in nature, HSBC is precluded from raising the
doctrine of-- res judicata --as a defense against this Courts obligation to verify first and
foremost that the claimant has federal jurisdiction “real party in interest” status. ALE v. U.S. Bank (Expunge Mortgage and Assignment*)(1/11) American Brokers Conduit v. ZAMALLOA - Judge SCHACK 11Sep2007 EMC Mortgage v. Wink - (1/07) MERS, which is not itself the owner and holder of the note and mortgage, does not have the authority to assign the ownership of the note and mortgage to plaintiff. Judgment of foreclosure and sale is denied 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 v. Emmanuel - (Judge Schack May 2010) Dismissed with prejudice. “foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity". 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 Plaintiff has renewed its application for an order of reference for the subject premises, but - Two invalid assignments of the instant mortgage and note took place, with ARGENT assigning the note and mortgage to AMERIQUEST, and then AMERIQUEST assigning the note and mortgage to plaintiff WELLS FARGO. Both of these assignments were not recorded for more than fourteen months, until February 21, 2006, when they were both recorded at that same time.
Wells Fargo v. Reyes WITH PREJUDICE, Fraud on Court & Sanctions Judge Schack June2008 No defendant answered in this foreclosure action. WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAPITAL1 INC., MSAC 2007-HE4, lacks standing and has never been the mortgagee in this foreclosure action, the instant complaint, Index No. 5516/08, is dismissed with prejudice; and it is further ORDERED, that the Notice of Pendency filed with the Kings County Clerk on February 21, 2008, by purported plaintiff, WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAPITAL1 INC., MSAC 2007-HE4, in an action to foreclose a mortgage for real property located at 379 Lincoln Avenue, Brooklyn New York (Block 4173, Lot 6, County of Kings), is cancelled. 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.)
ARGENT
v. Maitland (Aug. 2010) (
MERS as Nominee for U.S. Bank v. Munoz - (ORDER TO SHOW CAUSE) Mortgage Electronic Registration System as Nominee for US Bank, and any of its attorneys, agents, successors and assignees, be and are hereby restrained from implementing the closing of title on any third party sale of the premises and restrained from evicting the family from the premises.
LLP v. Sabine (8/2010) "the assignment produced by LPP is insufficient to demonstrate it has standing as (1) MERS has no ownership rights in the note and thus cannot assign it; (2) the language of the assignment of the mortgage does not evidence an intent to assign the underlying note, (3) the assignment arises out of a purchase agreement with an entity who is not a party to this action, and (4) the provision of mortgage document relied on by LPP does not give MERS the authority to assign the mortgage or the note. Wells Fargo Bank, N.A. v Hughes (1/10) The terms of the proposed modification agreement, particularly but not exclusively the inclusion of an adjustable rate component, are unacceptable to this court. "The above matter is hereby dismissed without prejudice; and it is further ordered, that in the event Wells Fargo commences a new action in foreclosure with respect to this borrower and the premises at issue herein, no additional costs or attorney fees will be allowed, absent good cause shown.
BACKFIRE!
Emigrant
Mtge. Co. Inc. v Corcione:
(7/10)
"unconscionable, unreasonable [and]
overreaching" mortgage agreement. For all of the foregoing reasons, it is,
therefore ordered, adjudged and decreed that plaintiff's application for
summary judgment and appointment of a referee is denied; and it is further
ordered, adjudged and decreed that plaintiff, its successors, assigns and
others are
Beneficial
v. Steele***
(Judge Spinner)(Jan 7/11) An action claiming foreclosure of a mortgage is a suit in
equity, Jamaica Savings Bank v. M.S. Investment Co. 274 NY 215 (1937), and the very commencement of the proceeding invokes the equity jurisdiction of the Supreme Court. Thus, in order to obtain equitable relief, the applicant must come before the Court with clean hands, else such relief will be denied. Thus, where a party comes before the Court and is shown to have acted in a manner which is offensive to good conscience, fairness and justice, that party will be completely without recourse in a court of equity, no matter what his legal rights may be, York v. Searles 97 AD 331 92nd Dept. 1904), aff'd 189 NY 573 (1907).
Stated a bit differently, in order to obtain equity, one must do equity.
|
Repair Your Credit Improve. Monitor. Protect. Save $50 off Credit Repair Service - Applies to first-work fee for each spouse sign-up. Need a Lawyer? LegalMatch allows you to present your case, and respond only to lawyers who want to help you. It's Free & Confidential. |
||
|
Repair Your Credit Improve. Monitor. Protect. Save $50 off Credit Repair Service - Applies to first-work fee for each spouse sign-up. Need a Lawyer? LegalMatch allows you to present your case, and respond only to lawyers who want to help you. It's Free & Confidential.
|
|||
|
Ohio Cases |
|||
|
Interim Findings of Effects of Ohio Standing Rulings |
|
||
|
IT'S UNANIMOUS! OHIO SUPREME COURT SETTLES CONFLICT OF FORECLOSURE OPINIONS in: SCHWARTZWALD v. FREDDIE MAC
Wright-Patt Credit Union
v. Byington (Ohio 9/13) Accordingly, because appellee failed to present the court with
evidentiary quality material in support of its assertion that it was the current holder of the note and
mortgage at issue, a genuine issue of material fact remains regarding whether appellee
has standing in this foreclosure action and the lower court erred in granting appellee
summary judgment. Given this conclusion, we need not address appellants’ argument
that appellee failed to meet the conditions precedent before filing suit. The sole
assignment of error is well-taken.
Bank
of New York Mellon v. Shaffer (Ohio 7/13)
Opinion and dissent address late filing, void vs. void, standing and
jurisdiction. Since the trial court lacked subject-matter jurisdiction and its
BAC Home Loan Servicing v. Mapp (Ohio 7/13) We therefore reverse the trial court's finding that "BAC's alleged lack of standing does not constitute a meritorious defense" and remand the case to the trial court for a hearing to determine BAC's standing to sue, and correspondingly whether the trial court had jurisdiction over the foreclosure proceedings. On remand, the trial court must determine whether MERS had the authority to assign the mortgage and/or the note as the nominee for Countrywide in light of the claim that Countrywide was no longer in existence when the mortgage was assigned to BAC. "a common pleas court cannot substitute a real party in interest for
Flagstar FSB v. Harvey (Ohio 6/13) It appears from the assignment of the mortgage from Flagstar Bank, FSB, A Federally Chartered Savings Bank, to Flagstar Bank, FSB, that these are two separate and distinct entities. However, the record is devoid of any proof that the note was ever endorsed to Flagstar Bank, FSB, from Flagstar Bank FSB, A Federally Charted Savings Bank. Therefore, a question arises as to whether Flagstar Bank, FSB was actually the holder of the note at the time it filed its complaint.
Wells Fargo v. Horn: (ohio 6/10/13) COA Agrees Trial COURT ERRED IN ALLOW[ING] WELLS FARGO's MANIPULATED DOCUMENTS TO WIN JUDGMENT In the caption, Wells Fargo identified itself as the “successor by merger to Wells Fargo Home Mortgage, Inc. fka Norwest Mortgage, Inc.” However, while Wells Fargo attached several documents to the complaint, including the note and mortgage, no documents evidencing a merger or a name change were attached. The note and mortgage each identify the Horns as the
borrowers and Norwest Mortgage, Inc. as the lender.
EMC Mortgage v. Atkinson (Ohio 3/13) Mr. Atkinson asserts in his sole assignment of error that the trial court erred in denying his Civ.R. 60(B) motion to vacate the agreed judgment decree. We agree that Mr. Atkinson is entitled to relief from judgment. Upon review of the record on appeal, this Court questioned whether EMC had standing to file an action in foreclosure at the time it filed its complaint. Thus, this Court issued an order requiring EMC to respond and demonstrate its standing. EMC failed to do so. As EMC has not established it had standing to bring this action at the time it filed its complaint in foreclosure, the judgment against Mr. Atkinson cannot stand. In light of the foregoing, we can only conclude that Mr. Atkinson is entitled to have the agreed judgment entry of foreclosure vacated. Self Help Ventures Fund v. Jones (REVERSED)(Ohio, 3-13) “Further, the Court held that a mortgage holder cannot rely on events occurring after the complaint is filed to establish standing,” 11th District Judge Cynthia Westcott Rice stated. “Thus, the plaintiff cannot rely on Civ.R. 17(angel) to cure its lack of standing by obtaining an interest in the subject of the litigation after the action is filed and substituting itself as the real party of interest.
Deutsche v. Barnes (Ohio AG Motion to Dismiss and Memorandum) (2007)
Bank of America v. Murray (3/11) (Ohio) We conclude that the trial court erred in rendering summary judgment in favor of BOA. Genuine issues of material fact exist regarding whether BOA is the real party in interest, and regarding whether BOA is the holder of the note upon which judgment was sought. We further conclude that there are genuine issues of material fact regarding whether BOA is a successor in interest to the original payee, because BOA failed to submit a proper affidavit to support its claims. Accordingly, the judgment of the trial court is Reversed and this cause is Remanded for further proceedings.
Deutsche Bank
v. Holden
Motion to Dismiss***As
the truths behind these foreclosure crimes becomes known, lawyers can
better argue these wrongful foreclosure cases. This is one of the best
Motion to Dismiss briefs we have read.
CENTRAL MORTGAGE COMPANY v. ELIA(June 2011)(REVERSED.The Court found that the conclusory averment within the plaintiff's affidavit that all conditions precedent had been satisfied was insufficient to prove compliance with Section 22 of the mortgage. Does that sound familiar? See next case...
CITIMORTGAGE v. ELIA(May 2011)(REVERSED)Defendant-Appellants, Ziad F. Elia and Holley E. Elia (“the Elias”), appeal from the judgment of the Summit County Court of Common Pleas, granting summary judgment in favor of Plaintiff-Appellee, CitiMortgage, Inc. (“CitiMortgage”). This Court reverses.
Bank of America v. Miller(REVERSED, lack of standing)(3/11) We conclude that the trial court erred in rendering summary judgment in favor of BOA. Genuine issues of material fact exist regarding whether BOA is the real party in interest, and regarding whether BOA is the holder of the note upon which judgment was sought. We further conclude that there are genuine issues of material fact regarding whether BOA is a successor in interest to the original payee, because BOA failed to submit a proper affidavit to support its claims. Accordingly, the judgment of the trial court is Reversed and this cause is Remanded for further proceedings. Deutsche Bank v. Tripplet (2/11)(Pro Se) Deutsche Bank’s affidavit of ownership, sworn out more than a year after the foreclosure complaint was filed, is insufficient to vest the bank with standing to file and maintain the action. CITIMORTGAGE v. Slack (2/11) The trial court found that CITI had failed to show that the jurisdiction of the court had been properly invoked and that any judgment, including judgment on counterclaim, would be a nullity. COA reversed, holding lower court had jurisdiction over homeowner's counterclaim.
U.S. Bank v. Detweiler (reversed & remanded)(12/10)
U.S. Bank v. Duvall (dismissal affirmed)(12/10) Accordingly, we conclude that plaintiff had no standing to file a foreclosure action against defendants on October 15, 2007, because, at that time, Wells Fargo owned the mortgage. Plaintiff failed in its burden of demonstrating that it was the real party in interest at the time the complaint was filed.
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 - Amicus brief of The Legal Aid Society of Cleveland in - Ohio Supreme Court declines jurisdiction!
National City v. Richards - Notice of Default
________________________________________/
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 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) Mainsource Bank v. Winafeld (Oct. 29,2007) Mainsource Bank v. Winafeld (Sept. 2, 2008) The record in this matter establishes the assignment of the underlying mortgage in this case was not filed until after this foreclosure action was filed. (T. at 23). In fact, the assignment was dated after the date of the filing of the foreclosure action. Id. Based on the above, under a de novo review of the facts and the law, we conclude the trial court properly granted Appellee's motion for sanctions.
Deutsche Bank v. TRIPLETT (JUDGMENT: REVERSED(2/11)
MERS v. Lambert (2/11)* (attorney fees, TILA, emotional damages) Equity is not served by requiring the successful litigant’s attorney to essentially pay the debts their clients owe to creditors out of the fees attributed to the attorney’s hourly rates for legal services rendered. In the absence of a contractual fee agreement between the lawyer and client that provides otherwise, if an attorney has earned the attorney fees that are awarded, the fees belong to the attorney, not the client, and may not be used to offset debts or obligations of the client. the attorney is entitled to the fee that is awarded to him regardless of any controversy regarding the underlying debt.” This rationale serves to facilitate the congressional purpose behind the TILA. "To provide otherwise would only serve to frustrate the enforcement of the TILA provisions because even attorneys who successfully prove violations of the law may not be compensated for their work. The litigant’s attorney has a legally protected interest to attorney fees awarded under fee-shifting provisions."
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
Deutsche Bank Justice Arthur M. Schack
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.
U.S. Bank, N.A. v. Richards, 2010-Ohio-981: This decision was a pleasure to read because the Court followed the law. Richards' counsel did a stellar job as the Court sustained both of Richards' assignments of error. The Opinion states: "because
we have concluded above that the trial court erred in awarding summary
judgment to U.S. Bank, we likewise conclude that Patricia Richards’
motion to dismiss could not have been moot for that reason. Thus,
we sustain her first assignment of error and remand the matter to the
trial court for further consideration".
HSBC
v. Thompson (All
of HSBC's assignments of error having been overruled, the judgment of the
trial court is Affirmed.)
One
brief was
|
Repair Your Credit Improve. Monitor. Protect. Save $50 off Credit Repair Service - Applies to first-work fee for each spouse sign-up. Need a Lawyer? LegalMatch allows you to present your case, and respond only to lawyers who want to help you. It's Free & Confidential. |
||
|
Lack of Standing cases in other States |
|||
|
Alabama: Horace v. LaSalle, Bear Stearns, EMC Mortgage, Bank of America (3/11) First, the Court is surprised to the point of astonishment that the defendant trust (LaSalle) did not comply with the terms of its own PSA and further did not comply with NY Law in attempting to obtain assignment of plaintiff's note and mortgage. Plaintiff Horace is a third party beneficiary of the PSA created by defendant trust. LaSalle permanently enjoined from foreclosing. Byrd v. MorEquity, Inc (3/12)The court ruled that the foreclosing lender may have lacked standing to initiate the foreclosure process when it did which would have rendered the foreclosure deed void. Meanwhile, the evidence showed that the foreclosing lender accelerated the debt as of December 11, 2009, and that the notice of the foreclosure sale was first published on December 15, 2009, prior to the date the mortgage was acquired by the lender according to its affidavit. Sturdivant v. BAC (12/11) A judgment entered in an action commenced by a party lacking standing is a nullity. Vance v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008); see also Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So. 3d 317, 321 (Ala. 2010) (same). Because BAC lacked standing to bring the ejectment action, the trial court never acquired subject-matter jurisdiction over this dispute. Accordingly, the summary judgment is void and is hereby vacated. Blevins, 51 So. 3d at 321; and Cadle Co., 950 So. 2d at 280. Additionally, because a void judgment will not support an appeal, Gallagher Bassett Servs., Inc. v. Phillips, 991 So. 2d 697, 701 (Ala. 2008), this appeal must be dismissed for lack of subject-matter jurisdiction. Blevins, 51 So. 3d at 323. Patterson v. GMAC (1/12) GMAC Mortgage lacked authority to foreclose the mortgage when it initiated the foreclosure proceedings, and, therefore, the foreclosure and the foreclosure deed upon which GMAC based it ejectment claim are invalid. Moreover, under our holding in Sturdivant, because GMAC Mortgage did not own any interest in the house, it lacked standing to bring its ejectment action against the Pattersons. Because GMAC Mortgage lacked standing to bring the ejectment action, the trial court never acquired subject-matter jurisdiction over the ejectment action. Accordingly, the judgment of the trial court is void and is hereby vacated. Moreover, because a void judgment will not support an appeal, we dismiss this appeal. |
|||
|
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 |
|||
|
Arkansas Supreme Court: MERS v. Southwest (MERS does not have legal standing.) |
|||
|
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. LaSalle v. Bialobrzeski (Sept. 2010) When the question regarding the plaintiff's standing was raised, the court should have held a hearing to determine whether the plaintiff was the owner or holder of the note at the time the action was commenced. (court improperly failed to conduct evidentiary hearing because jurisdiction hinged on factual determination) |
|||
|
Idaho: MERS, Litton, HSBC, Fieldstone Mortgage, Citimortgage |
|||
|
Illinois: Deutsche
v. Gilbert (11/12) (Illinois) Good lack of standing
opinion. We affirm the judgment of the circuit court of Du Page County granting summary judgment
in favor of Deutsche Bank on Gilbert’s counterclaim under the Truth in Lending Act. However, the Bank of America National Ass’n v. Bassman
FBT, L.L.C. (2012), The Illinois Appellate Court, Second District, recently held that mortgagors lack standing to challenge the propriety of an assignment of mortgage loans into a pooled-asset trust in alleged violation of a pooling and servicing agreement, as any alleged failing would not void the assignment but instead was a "voidable" act that could be ratified by trust beneficiaries. |
|||
|
Indiana: Elliot v. JPMorgan Chase Bank: Indiana Appellate Court reverses Chase/Ocwen's attempt to foreclose on a discharged/satisfied mortgage. McKinney v. Taylor Bean & Whitaker Mortgage: (Nov. 2010) The trial court erred in granting summary judgment in favor or TBWM on its action to foreclose McKinney's HUD-insured mortgage without first determining that Taylor-Bean had complied with Subpart C-- the conditions precedence to foreclosure. We reverse the trial court's grant of summary judgment and remand for further proceedings.
|
|||
|
Kansas Supreme Court: MERS Landmark (Kesler) |
|||
|
Kentucky: Deutsche Bank v. Augustine (2/18/11) After careful review of the record, we vacate because Duetsche Bank did not have standing at the time it commenced this appeal. |
|||
|
Maine: MERS/Deutsche v. Saunders (8/2010) We conclude that although MERS is not in fact a “mortgagee” within the meaning of our foreclosure statute, 14 M.R.S. §§ 6321-6325, and therefore had no standing to institute foreclosure proceedings, the real party in interest was the Bank and the court did not abuse its discretion by substituting the Bank for MERS. Because, however, the Bank was not entitled to summary judgment as a matter of law, we vacate the judgment and remand for further proceedings. |
|||
|
Massachusetts:
Thomas-v-Citimortgage-Allied-Flagstar-MERS:
(2/11) -Because Allied did not sign the agreement, it never became binding on the parties and is unenforceable.
BEVILACQUA v. RODRIGUEZ Case to watch*** Plaintiff Francis Bevilaqua holds no title to the property at 126-128 Summer Street in Haverhill. That title is held by defendant Pablo Rodriguez. What Mr. Bevilaqua has is a quitclaim deed from US Bank, N.A., which conducted an invalid foreclosure sale on the property (it was not the holder of the mortgage at the time the sale was noticed and conducted as required by G.L. c. 244, § 14) [Note 1] and thus acquired nothing from that sale. See US Bank v. Ibanez, 17 LCR 202 (Mar. 26, 2009) & 17 LCR 679 (Oct. 14, 2009) and cases cited therein. US Bank therefore had nothing to convey, and its purported conveyance to Mr. Bevilaqua was a nullity. See Bongaards v. Millen, 440 Mass. 10 , 15 (2003). Despite this, Mr. Bevilaqua now seeks to create a full, fee simple title in himself — quite literally, something from nothing — through the “try title” procedure of G.L. c. 240, §§ 1-5. He cannot do so, for the reasons set forth below. Accordingly, his complaint is DISMISSED in its entirety, with prejudice. BEVILACQUA v. RODRIGUEZ ***(4/11)(Amicus Brief of Professors Levitin, Peterson, Porter, Pottow) The principle of nemo dat quod non habet-that you can't give what you don't have-is the bedrock principle on which all commercial law is built. It is irrelevant whether Mr. Bevilacqua was a good faith purchaser, as the nemo dat doctrine trumps the bond fide purchase doctrine. Accordingly, U.S. Bank, N.A., was no more capable of passing on good title to the Rodriguez property than a common thief. The Recording of a Deed Is a Ministerial Act that Cannot Create Title. BEVILACQUA v. RODRIGUEZ ***(4/11)(Amicus Brief of Attorney General Coakley) This Court has consistently held that a plaintiff must have a claim to legal title for the property at issue in order to have standing. Mr. Bevilacqua lacks legal title to the Property. Because U.S.
Bank lacked a valid assignment, it was not the assignee of the mortgage upon which it purported to
foreclose. Thus, the foreclosure U.S. Bank conducted
|
|||
|
Michigan: HSBC
v. Younge (HSBC Denied - Mich.)
(10/12)those courts, however, have reached that conclusion through application of the general rule that a
nonparty to an assignment has no standing to challenge its validity. As discussed above, that is
not the rule in Michigan. EVERBANK V. ZEER (Michigan)(5/12): Because plaintiff did not have a mortgage interest when it initiated foreclosure proceedings, and therefore, the foreclosure proceedings are void ab initio, we reverse and remand for further proceedings consistent with this opinion.
Vocardo v. SPS, Fannie*** (Michigan)(5/12): Jenkinson argued that denying the Bocardos the right to contest the merits of their foreclosure after their redemption period would violate their due process rights under Article III of the U.S. Constitution. Judge Jonker agreed by stating, “…from my perspective, standing is an Article III jurisdictional issue. It deals with injury in fact first of all. And I can’t imagine anybody better than the party that says they are entitled to lawful possession of the house because something was wrong with foreclosure process.” After the decision, Jenkinson commented that “it’s refreshing to see that someone is willing to look into how the foreclosure mills spearheaded by Fannie Mae and Freddie Mac have been working overtime to throw people out of their homes. Hopefully this will lead to more attempts by the banks to modify deserving homeowners.” MERS Shut Down in Michigan (4/11) Court of Appeals / Before: WILDER, P.J., and SERVITTO and SHAPIRO, JJ. Having separated the mortgage from the loan, and disclaimed any interest in the loan in order to avoid the legal responsibilities of a lender, MERS nevertheless claims in the instant case that it can employ the rights of a lender by foreclosing in a manner that the statute affords only to those mortgagees who also own an interest in the loan. But as the Nebraska court stated in adopting MERS argument, "MERS has no independent right to collect on any debt because MERS itself has not extended any credit, and none of the mortgage debtors owe MERS any money." MERS did not own the indebtedness, own an interest in the indebtedness secured by the mortgage, or service the mortgage. MERS' inability to comply with the statutory requirements rendered the foreclosure proceedings in both cases void ab initio. Thus, the circuit courts improperly affirmed the district courts' decisions to proceed with eviction based upon the foreclosures of defendants' properties. Hendricks v. U.S. Bank (FC sale VOID) (6/11) The Court declares that the foreclosure sale that occurred on February 11, 2010 concerning Plaintiffs' real property is void ab initio pursuant to MCR 2.116 (C)(8), as Defendant, U.S. Bank, N.A. was not entitled to foreclose on Plaintiffs' property. Davenport v. HSBC (2007) In this case, defendant did not own the mortgage or an interest in the mortgage on October 27, 2005. Nonetheless, defendant proceeded to commence foreclosure proceedings at that time. Quite simply, defendant did not yet own the indebtedness that it sought to foreclose. The circuit court erred by determining that defendant's noncompliance with the statutory requirements did not nullify the foreclosure proceedings. Because defendant lacked the statutory authority to foreclose, the foreclosure proceedings were void ab initio. |
|||
|
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." Second Motion to Dismiss and Judgment In the Estate of Hastings(10/11)Judge Mark Stephens: The court finds that HSBC Bank USA, National Association, as Trustee for Nomura Home Equity Loan, me; Asset-Backed Certificates, Series 2005-HE1 is not a "person" under the auspices of either section. They are certificates, which have buyers and sellers, and have no legal standing to sue.
IN RE: MARTY EUGENE BOX (2010) (Judge Federman) The Debtors do not oppose the motion, but the Chapter 7 Trustee has challenged BAC’s standing to seek relief from the stay. For the reasons that follow, the Court finds that BAC has not proven that it is the holder of the Note. Therefore, it lacks standing, so its motion for relief from stay will be denied.
|
|||
|
Nevada: MERS crushed: In re Mitchell MERS Smackdown in Nevada: In re Hawkins |
|||
|
Bank of New York v. Raftogianis (2010) In this case, there are no compelling reasons to permit plaintiff to proceed in this action. Accordingly, the complaint has been dismissed. Wells Fargo v. Ford (reversed-lack of standing)(1/11) Well-reasoned opinion detailing why WF did not have standing. "The documents that Wells Fargo relied upon in support of its motion for summary judgment to establish its status as a holder were not properly authenticated". |
|||
|
North Carolina: IN THE MATTER OF THE FORECLOSURE in Adam(3/2011) (Deutsche, Soundview, Novastar and Nationwide Trustee Services named) Therefore, plaintiff is not the holder of the notes within the meaning of the Uniform Commercial Code, G.S. Ch. 25, and the trial court erred in according her the rights of a holder under G.S. 25-3-301.”); Hotel Corp. where a promissory note “had never been made payable to plaintiff or to bearer, nor had it ever been indorsed to plaintiff, . . . defendants established that plaintiff was not the owner or holder of the note”). Therefore, we reverse the trial court’s order authorizing Monica Walker, Matressa Morris, and Nationwide to act as substitute trustees and proceed with foreclosure under a power of sale for the property described in the Deed of Trust recorded in the Wake County Register of Deeds. Reversed.
|
|||
|
Oklahoma: U.S. Bank v. Moore (Standing-Okla. Sup Ct.)(4/12) Standing refers to a person's legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact— i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. A party which is assigned a mortgage without the accompanying promissory note holds no rights of enforcement. Id. Plainly, a party must properly acquire rights to both instruments before such party is able to enforce their terms. Unless the Appellee was able to enforce the Note at the time the suit was commenced, it cannot maintain its foreclosure action against the Appellants. In the present case, the only instrument attached to Appellee's petition was the Mortgage. Appellee did not produce the Note until the summary disposition stage. DEUTSCHE BANK NATIONAL TRUST v. Matthews (Okla.Sup Ct. - 2/12) The Bank then filed a document entitled "Assignment of Real Estate Mortgage" with the County Clerk of Creek County six months after the filing of the foreclosure proceeding. A trial court granted partial summary judgment in Deutsche Bank's favor against Defendant a month later. Defendant appealed the grant of summary judgment arguing Deutsche Bank failed to demonstrate standing. Finding that the Bank did not have the proper supporting documentation in hand when it filed suit, the Supreme Court reversed. BAC/MERS v.White (12/10-Oklahoma Court of Appeals) Summary Judgment reversed and remanded to trial. DEUTSCHE BANK NATIONAL TRUST v. BRUMBAUGH(1/12) (Reversed) To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. DEUTSCHE BANK NATIONAL TRUST COMPANY v. BYRAMS(1/12)(Reversed) The assignment of a mortgage is not the same as an assignment of the note. If a person is trying to establish it is a nonholder in possession who has the rights of a holder it must bear the burden of establishing its status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery.
|
|||
|
Pennsylvania: Beneficial Mortgage v. Vukmam (1/12) Homeowner's Emergency Mortgage Act. "When a mortgagee provides to a mortgagor a deficient Act 91 notice and then files a mortgage foreclosure action, the court lacks subject matter jurisdiction to entertain the action." "the court properly set aside the sheriff's sale, vacated the judgment, and dismissed Appellant's complaint without prejudice. Accordingly, we affirm the court's order."
|
|||
|
Texas: MERS v. Young / 2nd Circuit Court of Appeals Norwood v. Chase Bank, Chase Home Finance** (1/11)(ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE) (Report and Recommendation of the United States Magistrate Judge to the United States Senior Judge) This "excellent analysis" details the requirements of a foreclosing party to prove standing to foreclose in Texas. Green Tree v. Woods (8/12) We hold that the Woods’ claim of Green Tree’s lack of standing could not have been a basis to support the trial court’s grant of no-evidence summary judgment. We sustain Green Tree’s first issue. |
|||
|
|
|||
|
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. U.S. Bank v. KimballVermont Supreme Court (7/11) What should have here been a fairly straightforward, if not a summary, proceeding under the rules, was rendered inefficient by US Bank's failure to marshal its case before compelling homeowner and the court to waste time and resources, twice, by responding to what could not be proven. There was nothing inequitable in dismissing this matter
|
|||
|
Washington: In Re: Jacobson (UBS)(another chopped up mess) "As the motion was not brought in the name of the real party in interest, nor has standing to bring it been established, it will be DENIED."
|
|||
|
Wisconsin: Aurora v. Carlsen: We conclude that the circuit court’s finding that Aurora was the holder of the note, a finding essential to the judgment, is not supported by admissible evidence. We therefore reverse the judgment. Conner lacked the personal knowledge needed to authenticate Exhibit D. See WIS. STAT. § 909.01 (documents must be authenticated to be admissible, and this requirement is satisfied “by evidence sufficient to support a finding that the matter in question is what its proponent claims”). |
|||
|
Repair Your Credit Improve. Monitor. Protect. Save $50 off Credit Repair Service - Applies to first-work fee for each spouse sign-up. Need a Lawyer? LegalMatch allows you to present your case, and respond only to lawyers who want to help you. It's Free & Confidential. copyright MSFraud.org |
|||