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Tag Archives: Court

What Homeowners Should Know About Foreclosure Defense

10 Friday May 2019

Posted by BNG in Banks and Lenders, Case Study, Credit, Federal Court, Foreclosure, Foreclosure Crisis, Foreclosure Defense, Fraud, Judicial States, Loan Modification, Mortgage fraud, Mortgage Laws, Non-Judicial States, Pro Se Litigation, State Court, Your Legal Rights

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adversary proceeding, affidavits, Bankruptcy, bankruptcy adversary proceeding, Banks and Lenders, Consequences of a Foreclosure, Court, Deed of Trust, defaulting on a mortgage, False notary signatures, Forbearance, Foreclosure, foreclosure defense, foreclosure defense strategy, Foreclosure in California, foreclosure in Florida, foreclosure process, homeowners, judicial foreclosures, lender, Loan Modification, MERS, mortgage, Mortgage Electronic Registration System, Mortgage fraud, Mortgage law, Mortgage loan, Mortgage note, mortgages, non-judicial foreclosures, Promissory note, Robo-signing, Securitization, securitized, UCC, Uniform Commercial Code

Over the past few years, a growing number of homeowners in the foreclosure process have begun to fight back, by stalling foreclosure proceedings or stopping them altogether. The legal strategy employed by these homeowners is known as foreclosure defense.

Since 2007, nearly 4.2 million people in the United States have lost their homes to foreclosure. By early 2014, that number is expected to climb to 6 million. Historically, the legal process of foreclosure, one that requires a homeowner to return his or her house to a lender after defaulting on a mortgage, has tilted in favor of the banks and lenders — who are well-versed in the law and practice of foreclosure.

The simplest way to avoid foreclosure is by modifying the mortgage. In a mortgage modification, the homeowner convinces the lender to renegotiate the terms of the mortgage in order to make the payments more affordable.

A mortgage modification can include:

  • A reduction or change in the loan’s interest rate.
  • A reduction in the loan’s principal.
  • A reduction or elimination of late fees and penalties for non-payment.
  • A reduction in your monthly payment.
  • Forbearance, to temporarily stop making payments, or extend the time for making payments.

The goal of the foreclosure defense strategy is to prove that the bank does not have a right to foreclose. The chances of success rest on an attorney’s ability to challenge how the mortgage industry operates. The strategy aims to take advantage of flaws in the system, and presumes illegal or unethical behavior on the part of lenders.

Foreclosure defense is a new concept that continues to grow alongside the rising tide of foreclosure cases. While some courts accept foreclosure defense arguments, others find them specious and hand down decisions more beneficial to banks than to homeowners.

A growing number of victories by homeowners in state and federal courts have altered the foreclosure landscape dramatically, giving optimism to tens of thousands of other homeowners in similar situations. And because many of America’s large banks have acknowledged unorthodox, unaccepted or even illegal practices in the areas of mortgages, loan modifications and foreclosures, they inadvertently have given homeowners additional ammunition with which to fight.

Foreclosure Defense Varies by State

A major strategy of foreclosure defense is to make a bank substantiate clear chains of title for a mortgage and a promissory note. If any link in either chain is questionable, it can nullify a lender’s ability to make a valid claim on a property.

The foreclosure process varies somewhat from state to state, depending on whether your state uses mortgages or deeds of trust for the purchase of real property. A mortgage or deed of trust outlines a transfer of an interest in a property; it is not, in itself, a promise to pay a debt. Instead, it contains language that gives the lender the right to take the property if the borrower breaches the terms of the promissory note.

If you signed a mortgage, it generally means you live in a state that conducts judicial foreclosures, meaning that a lender has to sue in court in order to get a judgment to foreclose. If you signed a deed of trust, you live in a state that conducts non-judicial foreclosures, which means that a lender does not have to go to court to initiate a foreclosure action.

In a judicial state, homeowners have the advantage because they can require that the lender produce proof and perfection of claim, at the initial court hearing. In a non-judicial state, the lender does not have to prove anything because the state’s civil code gives it the right to foreclose after a notice of default has been sent. So in non-judicial states, a homeowner must file a civil action against the lender to compel it to provide proof of claim.

Regardless of whether you signed a mortgage or a deed of trust, you also signed a promissory note — a promise to pay back a specified amount over a set period of time. The note goes directly to the lender and is held on its books as an asset for the amount of the promised repayment. The mortgage or deed of trust is a public record and, by law, must be recorded in a county or town office. Each time a promissory note is assigned, i.e. sold to another party, the note itself must be endorsed with the name of the note’s new owner. Each time a deed of trust or mortgage is assigned to another entity, that transaction must be recorded in the town or county records office.

Foreclosure Defense and Chain of Title

Here is where foreclosure defense can begin to chip away at a bank’s claim on your property. In order for a mortgage, deed of trust or promissory note to be valid, it must have what is known as “perfection” of the chain of title. In other words, there must be a clear, unambiguous record of ownership from the time you signed your papers at closing, to the present moment. Any lapse in the chain of title causes a “defect” in the instrument, making it invalid.

In reality, lapses occur frequently. As mortgages and deeds began to routinely be bought and sold, the sheer magnitude of those transfers made it difficult, costly and time-consuming for institutions to record every transaction in a county records office. But in order to have some method of record-keeping, the banks created the Mortgage Electronic Registration System (MERS), a privately held company that tracks the servicing rights and ownership of the nation’s mortgages. The MERS holds more than 66 million American mortgages in its database.

When a foreclosure is imminent, MERS appoints a party to foreclose, based on its records of who owns the mortgage or deed of trust. But some courts have rejected the notion that MERS has the legal authority to assign title to a particular party in the first place. A court can decide MERS has no “standing,” meaning that the court does not recognize its right to initiate foreclosure since MERS does not have any financial interest in either the property or the promissory note.

And since MERS has essentially bypassed the county record-keeping system, the perfection of chain of title cannot be independently verified. This is where a foreclosure defense can gain traction, by questioning the perfection of the chain of title and challenging MERS’ legal authority to assign title.

Promissory Notes are Key to Foreclosure Defense

Some courts may also challenge MERS’ ability to transfer the promissory note, since it likely has been sold to a different entity, or in most cases, securitized (pooled with other loans) and sold to an unknown number of entities. In the U.S. Supreme Court case Carpenter v. Longan, it was ruled that where a promissory note goes, a deed of trust must follow. In other words, the deed and the note cannot be separated.

If your note has been securitized, it now belongs to someone other than the holder of your mortgage. This is known as bifurcation — the deed of trust points to one party, while the promissory note points to another. Thus, a foreclosure defense claims that since the relationship between the deed and the note has become defective, it renders the deed of trust unenforceable.

Your promissory note must also have a clear chain of title, according to the nation’s Uniform Commercial Code (UCC), the body of regulations that governs these types of financial instruments. But over and over again, borrowers have been able to demonstrate that subsequent assignments of promissory notes have gone unendorsed.

In fact, it has been standard practice for banks to leave the assignment blank when loans are sold and/or securitized and, customarily, the courts have allowed blank assignment to be an acceptable form of proof of ownership. However, when the Massachusetts Supreme Court in U.S. Bank v. Ibenez ruled that blank assignment is not sufficient to claim perfection, it provided another way in which a foreclosure can be challenged.

In their most egregious attempts to remedy these glaring omissions, some banks have actually tried to reverse-engineer chains of title, using fraudulent means such as:

  • Robo-signing of documents.
  • False notary signatures.
  • Submission of questionable, inaccurate or patently counterfeit affidavits.

Exposure of these dishonest methods halted many foreclosures in their tracks and helped increase governmental scrutiny of banks’ foreclosure procedures.

Other Foreclosure Defense Strategies

Another option for a homeowner who wishes to expose a lender’s insufficient perfection of title is to file for bankruptcy. In a Chapter 7 filing, you can declare your home an “unsecured asset” and wait for the lender to object. This puts the burden of proof on the lender to show a valid chain of assignment. In a Chapter 13 bankruptcy, you can file an Adversary Proceeding, wherein you sue your lender to compel it to produce valid proof of claim. The Bankruptcy Code requires that your lender provide evidence of “perfected title.”

Another foreclosure defense argument explores the notion of whether the bank is a real party of interest. If it’s not, it doesn’t have the right to foreclose. For example, if your loan has been securitized, your original lender has already been paid. At that point, the debt was written off and the debt should be considered settled. In order to prove that your original lender has profited from the securitization of your mortgage, it is advised that you obtain a securitization audit. The audit is completed by a third-party researcher who tracks down your loan, and then provides you with a court-admissible document showing that your loan has been securitized.

A foreclosure defense can also argue that once a loan has been securitized, or converted to stock, it is no longer a loan and cannot be converted back into a loan. That means that your promissory note no longer exists, as such. And if that is true, then your mortgage or deed of trust is no longer securing anything. Instead of the bank insisting that you have breached the contract specified in the promissory note, foreclosure defense argues that the bank has actually destroyed that agreement itself. And if the agreement doesn’t exist, how can it be enforced? A corollary to this argument states that your loan is no longer enforceable because it is now owned by many shareholders and a promissory note is only enforceable in its whole entirety. How can thousands of people foreclose on your house?

While the foreclosure defense strategy is legal in nature, and can be handled differently by different courts, it should not be ignored when preparing a case.

The tactic of attacking a lender’s shoddy or illegal practices has proven to be the most successful strategy of foreclosure defense, since most courts are loathe to accept unlawful or unethical behavior, even from banks. If a homeowner can present clear instances of lost or missed paperwork, demonstrate that notes were misplaced or improperly endorsed, or prove that documents were forged, robo-signed, or reversed-engineered, the more likely a court will rule in his or her favor.

If you are considering a foreclosure defense, you have two options, you can either represent yourself in the Court as a Pro Se Litigant, (USING OUR FORECLOSURE DEFENSE PACKAGE), if you cannot afford to pay Attorneys Fees, as foreclosure proceeding can take years while you are living in your home WITHOUT PAYING ANY MORTGAGE. Or You may retain a Legal Counsel to Defend you. If you chose the second option, it is imperative that you retain the services of professional legal counsel. Regardless of how educated you are about the process, this is an area of law that requires a well-thought-out, competent presentation in a State or Federal court. Nonetheless, the Attorneys fees for foreclosure defense can accumulate over the years to thousands and even tens of thousands of dollars, that is why most homeowners, opt to represent themselves in the proceedings which can take anywhere between 1-7 years, while homeowners are living in their homes Mortgage-Free. The good news is that most foreclosure defense Attorneys equally use the same materials found in our foreclosure defense package to defend homeowner’s properties, and with these same materials, you can equally  represent yourself as a Pro Se (Self Representing), litigant.

A successful foreclosure defense may prohibit or delay the foreclosure process or it simply may induce a lending institution to negotiate a loan modification that allows you to stay in your home — which, of course, was the goal in the first place. You can equally be awarded damages by the courts for mortgage law violations by the lenders, in addition to loan modification.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

If you have received a Notice of Default “NOD”, take a deep breath, as this the time to start the FIGHT! and Protect your EQUITY!

If you do Nothing, you will see the WRONG parties WITHOUT standing STEAL your home right under your nose, and by the time you realize it, it might be too late! If your property has been foreclosed, use the available options on our package to reverse already foreclosed home and reclaim your most prized possession! You can do it by yourself! START Today — STOP Foreclosure Tomorrow!

If you are a homeowner already in Chapter 13 Bankruptcy and needs to proceed with Adversary Proceeding to challenge the validity of Security Interest or Lien on your home, Our Adversary Proceeding package may be just what you need.

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What Homeowners Must Know About Deficiency Judgment After Foreclosure

20 Sunday Jan 2019

Posted by BNG in Banks and Lenders, Foreclosure Crisis, Foreclosure Defense, Judgment, Judicial States, Mortgage Laws, Non-Judicial States, Note - Deed of Trust - Mortgage, Restitution, State Court, Your Legal Rights

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after foreclosure, bank, Banks, Borrower, collection, Court, courts, Deficiency judgment, deficiency judgments, Foreclosure, homeowners, judicial foreclosures, lender, liability, loses, money, mortgage, non-judicial foreclosures, non-recourse, state, state law

A common misconception among consumers is that after foreclosure they will not owe their mortgage lender. Many homeowners who go through foreclosure are surprised to learn that they still owe money on their house, even though they no longer own it!

Most mortgage lenders require borrowers to personally guarantee the amount of the note, leaving the lender with two avenues of in the foreclosure scenario. Lenders can take back the real estate, and in many vases, sue the borrower personally if the house doesn’t sell for the full value of the money that was lent.

What is a ?

When a borrower loses their home to foreclosure and still owes their lender money after the sale, the remaining debt is usually referred to as a deficiency. Lenders can sue to recover this amount.

For example, if you owe $500,000 on your mortgage and can no longer afford to make payments on the note, your lender will institute foreclosure proceedings against you and will eventually sell your home at a public sale. If the home sells for $400,000 and your state allows lenders to collect deficiency judgments, you will owe your lender $100,000 once they obtain a judgment for the deficiency.

In many cases, this deficiency judgment is a tough pill to swallow for the borrower who just lost their home and yet still owes their lender after foreclosure.

Homeowners’ responsibility after foreclosure

Borrowers who are left facing a large deficiency judgment after foreclosure often turn to bankruptcy in order to protect their assets. In order to determine whether you will owe money to your lender after a foreclosure sale of your home, it is important to get a handle on two important items of information:

1. How much is your home worth?

Regardless of your state’s deficiency laws, if your home will sell at a foreclosure sale for more than what you owe, you will not be obligated to pay anything to your lender after foreclosure. Your lender is obligated to apply the sale price of your home to the  mortgage debt. Only when a home is “underwater” — meaning the borrower owes more on the mortgage than the home is worth — will he or she potentially face a deficiency judgment after a foreclosure.

2. Does your state have an Anti-Deficiency Statute?

Not all states allow lenders to collect on the note after a home has been foreclosed on. These states are referred to as “non-recourse” states because they only allow the lender to take back the collateral for the loan (your home). They do not allow the lender the additional remedy of going after the borrower’s personal assets if the sale of the home does not satisfy the mortgage.

Non-recourse mortgage states

In a non-recourse mortgage state, borrowers are not held personally liable for their mortgage. If the foreclosure sale does not generate enough money to satisfy the loan, the lender must accept the loss.

Some states that have anti-deficiency legislation qualify it by only making it applicable to seller-financed or “purchase-money” mortgages. North Carolina is a good example. North Carolina’s anti-deficiency statute applies when the seller of real estate provides the financing for the purchase. In such a situation, the legislature has prohibited the seller/lender from seeking a deficiency judgment after foreclosure. The purchase-money lender has recourse only against the collateral for the loan and not against the purchaser/borrower in her individual capacity. Banks who have made mortgages in North Carolina are allowed to seek deficiency judgments against borrowers.

The lesson to be learned is that if you owe more on your mortgage than your house is worth and the property is in a state that allows lenders to seek deficiency judgments, you may still owe money even after foreclosure.

Judicial and non-judicial foreclosures

A lender that wants to foreclose on your home has two foreclosure options: judicial and non-judicial. A judicial foreclosure is processed through the courts; some states require lenders to use this process. A non-judicial foreclosure is handled outside the court system.

It is advisable to consult with an experienced bankruptcy attorney to discuss how your state’s laws will affect you. Below is a list of states that have some form of anti-deficiency statute:

Alaska

You are not liable for the deficiency in a non-judicial foreclosure, but you may be liable for the deficiency in a judicial foreclosure.

Arizona

You are not liable for the deficiency if the home is a single one-family or single two-family home on a plot of less than 2 ½ acres. You must have lived in the home for at least 6 months.

California

You are not liable for the deficiency for purchase-money loans in non-judicial foreclosure. You are not liable for the deficiency in judicial foreclosure for property with four units or less, seller-financed loans, or refinances of purchase-money mortgages executed after January 1, 2013.

Connecticut

Under a “strict foreclosure,” you may be sued separately for the deficiency. If your home is sold under a “decree of sale,” you will liable for only half of the deficiency.

Florida

The lender must sue you for the deficiency, and whether you are liable is left to the discretion of the court. You will be given credit for the greater of the foreclosure price or the fair-market value of the home.

Hawaii

You are not liable for the deficiency in a non-judicial foreclosure if the property is residential and you live in it. You are liable for the deficiency in a judicial foreclosure.

Idaho

Your deficiency is limited to the difference between the fair-market value of your home and the foreclosure price.

Minnesota

For a non-judicial foreclosure, you are not liable for the deficiency. In a judicial foreclosure, you are liable but the jury will determine the fair-market value of your home and you will have to pay the difference between that and the foreclosure price.

Montana

You are not liable for the deficiency in a non-judicial foreclosure.

Nevada

You are not liable for the deficiency if your lender is a financial institution, the loan originated after October 1, 2009, the property is a single-family owner-occupied home, the mortgage debt was used to purchase the property, and you haven’t refinanced the mortgage.

New Mexico

You are not liable for the deficiency in a non-judicial foreclosure on the primary residence of a low-income household.

North Carolina

If the seller is finances your mortgage, you are not liable for the deficiency.

North Dakota

You are not liable for the deficiency if the property has less than four units and is on a plot of less than 40 acres.

Oklahoma

You are not liable for the deficiency if you notify the lender in writing at least 10 days before the foreclosure sale that you live in the home and opt out of deficiency judgment.

Oregon

You are not liable for the deficiency in non-judicial foreclosure or in judicial foreclosure on property with four or less units as long as you or a direct family member lives in one of the units.

Texas

You will receive credit for the fair-market value of the home. You are liable for the difference between your mortgage loan amount and the fair-market value.

Washington

You are not liable for the deficiency in a non-judicial foreclosure. You are liable for the deficiency for a judicial foreclosure.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

If you have received a Notice of Default “NOD”, take a deep breath, as this the time to start the FIGHT! and Protect your EQUITY!

If you do Nothing, you will see the WRONG parties WITHOUT standing STEAL your home right under your nose, and by the time you realize it, it might be too late! If your property has been foreclosed, use the available options on our package to reverse already foreclosed home and reclaim your most prized possession! You can do it by yourself! START Today — STOP Foreclosure Tomorrow!

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How Homeowners Can Greatly Improve their Chances of Winning on Appeal

24 Wednesday Jan 2018

Posted by BNG in Appeal, Case Laws, Case Study, Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Note - Deed of Trust - Mortgage, Pleadings, Pro Se Litigation, Scam Artists, Title Companies, Trial Strategies, Your Legal Rights

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Appeal, Court, District Court, Foreclosure, foreclosure defense, homeowners, Plaintiff, pro se, Pro se legal representation in the United States, State Court, United States district court

A seasoned Attorney will tell you that trying cases is one of the most exciting things a litigator does during his or her career but it is also certainly one of the most stressful. While in the trenches during trial, many litigators understandably focus all of their energies on winning the case at hand. But a good litigator knows that trial is often not the last say in the outcome of a case. The final outcome often rests at the appellate level, where a successful trial outcome can be affirmed, reversed, or something in between. The likelihood of success many times hinges on the substance of the record on appeal. The below discusses a variety of issues that trial litigators should keep in mind as they prepare and present their case so they position themselves in the best possible way for any appeals that follow.

Prepare Your Appellate Record From The Moment Your Case Begins

Perhaps one of the biggest misconceptions regarding preserving an adequate record on appeal is when a lawyer should start considering what should be in the record. In short, the answer is from the moment the complaint is filed. At that time, counsel should begin to think carefully about the elements of each asserted cause of action, potential defenses and their required elements, and the burden of proof for each. Every pleading should be drafted carefully to ensure that no arguments are waived in the event they are needed for an appeal. For instance, a complaint should allege with specificity all the factual and legal elements necessary to sustain a claim, while an answer should include any and all applicable affirmative defenses to avoid waiver. See, e.g., Travellers Int’l, A.G. v. Trans World Airlines, 41 F.3d 1570, 1580 (2d Cir. 1994) (“The general rule in federal courts is that a failure to plead an affirmative defense results in a waiver.”). Likewise, if you file a motion to dismiss, ensure that the motion contains all the necessary evidence that both a trial court and appellate court would need to find in your favor. Of particular importance in federal court practice is the pre-trial order. Under Federal

Rule of Civil Procedure 16, the pre-trial order establishes the boundaries of trial. See Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.1998) (“It is a well-settled rule that a joint pre-trial order signed by both parties supersedes all pleadings and governs the issues and evidence to be presented at trial.”). If the pre-trial order does not contain the pertinent claims, defenses or arguments that you wish to present at trial, you are likely also going to be out of luck on appeal.

Later on in the case, as the factual record becomes more fully developed, consider whether amending or supplementing the pleadings or other court submissions are necessary to make the record as accurate as possible. Most states follow the federal practice of allowing liberal amendments. However, these can be contested, particularly late in the process, closer to trial. While appellate review is often for abuse of discretion, formulating a strong motion in favor of or in opposition to an amendment can preserve the issue.

What to Keep in Mind as Your Case Proceeds

As the case develops, consider whether the elements you need to prove your case are sufficiently reflected in the information you obtain during discovery. If not, determine whether there are ways to obtain the information you need well before trial starts. By the time trial arrives, it may be too late to supplement the record to get before the trial judge and the appellate court what you need to win your case. In that regard, anything you have in writing that gets submitted to the court may very well end up being part of the record on review, so make sure it is accurate and understandable. Incomprehensible or incomplete submissions can muddy your appellate record and damage a successful appellate proceeding. In the same vein, make sure anything presented to the court prior to trial that you want to be part of the record is transcribed. Otherwise, there will be an insufficient record on appeal. This is particularly so when it comes to discovery disputes. Although they are common in present day litigation, judges hate discovery disputes. To preserve discovery issues for appeal, be sure to get a ruling, and make sure it is reflected in writing. Moreover, carefully review every pre-trial court order or other judicial communication, including court minutes, to ensure accuracy. Attempting to make corrections during the appellate process may not be possible.

Another significant area for appellate issues is the failure to timely identify experts. This is subject to an abuse of discretion standard of review, so it is important that one builds a record on the issue, particularly regarding any prejudice suffered by the untimely disclosure.

After Discovery Closes – The Motion in Limine

Once discovery has closed, consider carefully any motions in limine you may want to make. Although motions in limine are not strictly necessary, they are helpful in identifying evidentiary issues for the judge and counsel and increase the chances of a substantive objection, sidebar, and ruling when the issue arises at trial. One potential pitfall – some jurisdictions require a party to renew an objection at trial after a motion in limine has been denied, so make sure to do so if necessary. See, e.g., State ex. Rel Missouri Highway and Transp. Com’n v. Vitt, 785 S.W.2d 708, 711 (Mo. Ct. App. E.D. 1990) (“A motion in limine preserves nothing for review. Following denial of a motion in limine, a party must object at trial to preserve for appellate review the point at issue.”) (internal citation omitted). Also, if the Court delivers its ruling on a motion in limine orally, make sure it is transcribed properly by the court reporter.

Now the Trial – What to Keep in Mind

Above all else, when in doubt, object. Objections should be immediate and specifically describe the basis for the objection so the record is clear. Make the argument to win – every objection should be more than just reciting labels, and should provide sufficient information for the trial judge to decide the issue. The goal is not to be coy with the trial judge and hope for a lucky break, but to be prepared to make an argument to win the issue at trial or, alternatively, on appeal. In addition, if you are the party proffering the evidence, make sure the proffer is on the record and that you expressly state why the evidence is being offered. This may require pressing on the judge to get the full objection on the record. If you fail to do so, you risk the appellate court not reviewing the claim on appeal. See, e.g., National Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 274-75 (2010) (observing “purpose of a proffer is to make an adequate record of the evidence to be introduced … [and] preserves the issue for appeal and provides the appellate court an adequate record to review when determining whether the trial court erred in excluding the evidence.”). Also, always be careful of waiving any issues for appeal by agreeing to a judge’s proposed compromise on evidentiary issues.

An important but often overlooked consideration is the courtroom layout and dynamics. Well-thought and timely objections will be for naught if they are not transcribed. Sometimes the courtroom layout can make record preservation difficult. For example, if objections are made at sidebar conferences where the court reporter is not present, those objections may not make their way into the appellate record or be dependent on the after the fact recollections of others. See, e.g., Ohio App. R. 9(c) (describing procedures for preparing statement of evidence where transcript of proceedings is unavailable and providing trial court with final authority for settlement and approval). This should be avoided whenever possible.

Beyond objections, make sure all the evidence you need for your appeal is properly admitted by the trial court before the close of your case. All exhibits that were used at trial should be formally moved into evidence if there is any doubt as to whether they will be needed on appeal. If you had previously moved for summary judgment and lost, make sure you take the necessary steps at trial to preserve those summary judgment issues, especially in jurisdictions that do not allow interlocutory appeals.

Another important aspect of the trial is the jury instructions. Jury instructions should always be complete. Remember that the instructions you propose can be denied without error if any aspect of them is not accurate, so break them into small bites so that the judge can at least accept some parts. Specifically object to any jury instructions as necessary before the jury begins its deliberations. See, e.g., Fed. R. Civ. P. 51(c). Failure to do so will waive the right to have the instruction considered on appeal. See, e.g., ChooseCo, LLC v. Lean Forward Media, LLC, 364 Fed. Appx. 670, 672 (2d Cir. 2010) (finding that defendant’s objection to jury instructions and verdict form during jury deliberations did not comply with Fed. R. Civ. P. 51(c) and noting that the “[f]ailure to object to a jury instruction or the form of an interrogatory prior to the jury retiring results in a waiver of that objection.”).

Additionally, when you lodge your objections, make sure you explain why the jury charge is in error since general objections are insufficient. See, e.g., Victory Outreach Center v. Meslo, 281 Fed. Appx. 136, 139 (3d Cir. 2008) (holding that general objection to the court’s jury instructions and proposed alternative instructions, “were insufficient to preserve on appeal all potential challenges to the instructions” and were not in compliance with Fed. R. Civ. P. 51(c)(1)). If possible, have a set of written objections to the other side’s jury charges, and get the judge to rule on that, since judges like to hold such conferences off the record. Also, do not overlook the verdict form. Know that when you agree to a particular form (general or special), that will mean that you are probably taking certain risks and waiving certain arguments one way or the other. Give this thought, and make sure that you know the rules of your jurisdiction on verdict forms so you can object if necessary. See, e.g., Palm Bay Intern., Inc. v. Marchesi Di Barolo S.P.A., 796 F.Supp. 2d 396, 409 (E.D.N.Y. 2011) (objection to verdict sheet should be made before jury retires); Saridakis v. South Broward Hosp. Dist., 2010 WL 2274955, at *8 (S.D. Fla. 2010) (noting that Federal Rule of Civil Procedure 51(c)(2)(B) states that an objection is timely if “a party objects promptly after learning that the instruction or request will be … given or refused” and that the Eleventh Circuit “require[s] a party to object to a … jury verdict form prior to jury deliberations” or the party “waives its right to raise the issue on appeal.”). (internal quotations and citation omitted).

Finally, pay careful attention to the closing argument. This can be an area where winning at trial by convincing a jury may be at odds with preserving the issue on appeal. On the flip side, many litigators are loath to interrupt a closing argument to object. If you need to object to preserve an issue, do so.

Post-Judgment – Final Things to Consider

First, determine whether certain arguments must be made post-judgment to preserve those arguments for appeal. Some arguments (such as those attacking the sufficiency of the evidence) must be made at that time or they are waived. See, e.g., Webster v. Bass Enterprises Production Co., 114 Fed.Appx. 604, 605 (5th Cir. 2004) (holding that failure to challenge back pay award in post-judgment motion waived the issue on appeal absent exceptional circumstances that did not exist). Written motions post-judgment should include all relevant references to trial transcripts and evidence to make as complete and clean a factual record as possible

Second, when the appellate record is being compiled, carefully double check the record to ensure its accuracy. Many times the trial court clerk or court reporter accidentally omits portions of the record. If this is not caught and corrected in a timely manner, you may be stuck with a bad record. Most jurisdictions have procedures in place for supplementing and correcting the record but understand them well in advance so there is adequate time to address any discrepancies before the appellate briefing is due.

Conclusion

Too often even seasoned trial lawyers get tripped up on appeal by not having an orderly and complete record. A litigator must never lose sight of the factual and legal issues in a case and what an appellate court will need to consider in making the desired determinations. As demonstrated above, a winning record requires thought at all stages of the litigation, not just when the notice of appeal is filed. With proper preparation, attention to detail, and forethought, one can ensure that the proper record on appeal is never in doubt.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

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What Homeowners in Foreclosure Defense Needs to Know About the Issues of “Standing vs. Capacity to Sue”

18 Sunday Aug 2013

Posted by BNG in Affirmative Defenses, Case Laws, Case Study, Federal Court, Foreclosure Defense, Fraud, Judicial States, Litigation Strategies, Mortgage Laws, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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Court, Lawsuit, Mastropaolo, Motion (legal), New York, Plaintiff, Wells Fargo, Wells Fargo Bank

Homeowners in Judicial foreclosure states need to realize that Banks claim of ownership of the note is not an issue of standing but an element of its cause of action which it must plead and prove

The term “standing” has been applied by the courts to two legally distinct concepts. The first is legal capacity, or authority to sue. The second is whether a party has asserted a sufficient interest in the outcome of a dispute.

Standing and capacity to sue are related, but distinguishable legal concepts. Capacity requires an inquiry into the litigant’s status, i.e., its “power to appear and bring its grievance before the court”, while standing requires an inquiry into whether the litigant has “an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue.”

Wells Fargo Bank Minnesota, Nat. Ass’n v Mastropaolo, 42 AD3d239, 242 (2d Dept 2007) (internal citations omitted). Both concepts can result in dismissal on a pre answer motion by the defendant and are waived if not raised in a timely manner.

In some Jurisdictions such as New York, an action may be dismissed based on the grounds that the Plaintiff lacks the legal capacity to sue. CPLR 3211(a)(3) It governs no other basis for dismissal. CPLR 3211(e) provides that a motion to dismiss pursuant to CPLR 3211(a)(3) is waived if not raised in a pre-answer motion or a responsive pleading.

Many decisions treat the question of whether the Plaintiff in a foreclosure action owns the note and mortgage as if it were a question of standing and governed by CPLR 3211(e).

Citigroup Global Markets Realty Corp. v. Randolph Bowling , 25 Misc 3d 1244(A), 906 N.Y.S.2d 778 (Sup. Ct. Kings Cty 2009);  Federal Natl. Mtge. Assn. v. Youkelsone, 303 AD2d546, 546—547 (2d Dept 2003);
Nat’l Mtge. Consultants v. Elizaitis, 23 AD3d 630, 631 (2dDept 2005);
Wells Fargo Bank, N.A. v. Marchione, 2009 NY Slip Op 7624, (2d Dept 2009)

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.  Kittinger v Churchill  Evangelistic Assn Inc., 239 AD 253, 267 NYS 719 (4th Dept 1933). Incapacity to sue is not the same as insufficiency of facts to sue upon. Ward v Petri, 157 NY3d 301 (1898)

In the case of Ohlstein v Hillcrest, a defendant moved to dismiss a complaint in part based on lack of legal capacity to sue where plaintiff had assigned her stock. The Court denied that branch of the motion holding that even if plaintiff had assigned her stock, “the defect to be urged is that the complaint does not estate [sic] a cause of action in favor of the one who is suing, the alleged assignor – not that the plaintiff does not have the legal capacityto sue. Legal incapacity, as properly understood, generally envisages a defect in legal status,not lack of a cause of action in one who is sui juris.” Ohlstein v Hillcrest, 24 Misc 2d 212,214, 195 NYS2d 920, 922 (Sup Ct NY Co 1959).

The difference was articulated by the Court in the case of  Hebrew Home for Orphans v Freund, 208 Misc. 658, 144 N.Y.S.2d 608 (Sup Ct Bx 1955). The plaintiff in that case sought a judgment declaring that an assignment of a mortgage it held was valid. The defendants moved to dismiss the complaint on the grounds that since the assignment was not accompanied by delivery of the bond and mortgage to plaintiff, plaintiff did not own the bond and mortgage and thus had no legal capacity to sue or standing to maintain the action. The Court denied the motion, stating:

The application to dismiss the complaint on the alleged ground that the plaintiff lacks legal capacity to sue rests upon a misapprehension of the meaning of the term. See Gargiulo v.Gargiulo, 207 Misc. 427, 137 N.Y.S.2d 886. Rule 107(2) of the Rules of Civil Practice relates to a plaintiff’s right to come into Court, and not to his possessing a cause of action. Idat 660-661, 610.

The Court then quotes Kittinger v Churchill for the principle that,

“The provision for dismissal of the complaint where the plaintiff has not the capacity to sue (Rules of Civil Practice, rules 106, 107) has reference to some legal disability, such as infancy, or lunacy, or want of title in the plaintiff to the character in which he sues. There is a difference between capacity to sue, which gives the right to come into court, and possession of a cause of action, which gives the right to relief in court.
Ward v. Petrie, 157 NY 301, 51 N.E. 1002;  Bank of Havana v. Magee,
20 NY 355; Ullman v. Cameron, 186 NY 339, 78 N.E.1074. The plaintiff is an individual suing as such. He is under no disability, and sues in norepresentative capacity. He is entitled to bring his suits before the court, and to cause a summons to be issued, the service of which upon the defendants brings the defendants in to court. There is no lack of capacity to sue.

The other meaning of standing involves whether the party bringing the suit has a sufficient interest in the dispute. Some cases have held that in this context, standing is jurisdictional, reasoning that where there is no aggrieved party, there is no genuine controversy, and where there is no genuine controversy, there is no subject matter  jurisdiction.
Stark v Goldberg, 297 AD2d 203, 204(1st Dept 2002);  xelrod v New York StateTeachers’ Retirement Sys., 154 AD2d 827, 828 (3rd Dept 1989).

Some courts have held that the jurisdiction of the court to hear the controversy is not affected by whether the party pursuing the action is, in fact, a proper party.They have held that if not raised in the answer or pre-answer motion to dismiss, the defense that the a party lacks standing is waived. Wells Fargo Bank Minnesota, Nat. Ass’n v. Perez,70 AD3d 817, 818, 894 N.Y.S.2d 509, 510 (2nd Dept 2010), Countrywide Home Loans, Inc.v. Delphonse, 64 AD3d 624, 625, 883 N.Y.S.2d 135 (2nd Dept 2009),
HSBC Bank, USA v. Dammond, 59 AD3d 679, 680, 875 N.Y.S.2d 490 (2nd Dept 2009)

The issue of whether a Plaintiff owns the mortgage and note is a different question from  whether it has an interest in the dispute. Whether a party has a sufficient interest in the dispute is determined by the facts alleged in the complaint, not whether Plaintiff can prove the allegations.
Wall St. Associates v. Brodsky, 257 AD2d 526, 684 N.Y.S.2d 244 (1st Dept1999),  Kempf v. Magida, 37 AD3d 763, 764, 832 N.Y.S.2d 47, 49 (2nd Dept 2007). For the purpose of determining whether a party has sufficient interest in the case the allegations areassumed to be true.

It is important to note that This issue is not analogous to the issue of whether citizens have standing to seek judicial intervention in response to what they believe to be governmental actions which would impair the rights of members of society, or a particular group of citizens, (e.g. Schulz v. State, 81 NY2d 336, 343, 615 N.E.2d 953, 954 (1993), or whether registered voters have standing to challenge the denial of the right to vote in a referendum pursuant to Section 11 of Article VII of the State Constitution, or whether commercial fishermen have standing to complain of the pollution of the waters from which they derive their living, see also  Leo v. Gen. Elec. Co.,  145 AD2d 291, 294, 538 N.Y.S.2d 844, 847 (2nd Dept 1989). The issue of standing in these types of cases turn on whether the claimants have an interest sufficiently distinct from societyin general.

Foreclosure actions implicate a concrete interest specific to a plaintiff, and the determination must be made as to whether it has been aggrieved and is therefore entitled to receive monetary damages for the alleged breach of the law.

Therefore homeowners needs to realize that when Banks pled that it owns the note and mortgage and asserts the right to foreclose on the mortgage which it asserts is in default. If it is successful in proving its claims, then usually it is entitled to receive the proceeds of the sale of the mortgaged property. Homeowners should understand that the objection that the Plaintiff in fact does not own the note and mortgage is not a defense based on a lack of standing. Courts will usually claim homeowners “does not say” (insufficient facts were alleged). But that the homeowner’s argument is that the facts alleged are not true. It is not a question of whether the Bank has alleged a sufficient interest in the dispute, but of whether the Bank can prove its prima facie case.

In Judicial States where the Banks are the plaintiff; unlike standing, denial of the Plaintiff’s claim that it owns the note and mortgage is not an affirmative defense because it is usually a denial of an allegation in the complaint that is an element of the Plaintiff’s cause of action.

In a Judicial foreclosure case, the Plaintiff must plead and prove as part of its prima facie case that it owns the note and mortgage and has the right to foreclose. Wells Fargo Bank, N.A., 80AD3d 753, 915 N.Y.S.2d 569 (2d Dept 2011); Argent Mtge. Co., LLC v. Mentesana, 79AD3d 1079, 915 N.Y.S.2d 591 (2d Dept 2010); Campaign v Barba , 23 AD3d 327, 805 NYS2d 86 (2nd Dept 2005).

However, it is usually not enough for the Defendant (Homeowner) to filed a pro se “answer” containing a “general denial”, which is a denial of all of “Plaintiff’s allegations”.

In Hoffstaedter v. Lichtenstein , 203 App.Div. 494, 496, 196 N.Y.S. 577 (1st Dept 1922),the First Department held that the general denial put the allegations in the plaintiff’scomplaint in issue. In that case, the defendant executed a note in favor of the plaintiff as a promise to pay for certain goods. When plaintiff brought an action to recover on the note, the defendant answered with a general denial. It went on to state that “[i]t is elementary that under a general denial a defendant may disprove any fact which the plaintiff is required to prove to establish a prima facie cause of action.” Id., at 578.

The Court of Appeals cited  Hoffstaedter v. Lichtenstein in holding that a general denial puts in issue those matters already pled.
Munson v. New York Seed Imp. Co-op., Inc., 64 NY2d 985, 987, 478 N.E.2d 180, 181 (1985).The general denials contained in the answer enable defendant to controvert the facts upon which the plaintiff bases her right to recover. Strook Plush Company v. Talcott, 129 AD 14, 113 NYS 214 (2nd Dept 1908). A generaldenial is sufficient to challenge all of the allegations in a complaint. Bodine v. White , 98 NYS232, 233 (App. Term 1906).The Second Department in Gulati v. Gulati, 60 AD3d 810, 811-12, 876 N.Y.S.2d 430, 432-33 (2nd Dept 2009), held it was that where a claim would not take the plaintiff by surprise and “does not raise issues of fact not appearing on the face of the complaint”, a denial of the allegations in the plaintiff’s complaint was sufficient. It heldthat where the plaintiff alleged as an element of her prima facie case that the defendant abandoned the marital residence without cause or provocation, and the defendant denied these allegations in his answer, defendant did not need to further allege abandonment as an affirmative defense

The Fourth Department in Stevens v. N. Lights Associates, 229 AD2d 1001, 645 N.Y.S.2d 193, 194 (4th Dept 1996), found that a denial by defendant that it was in control of the premises where plaintiff fell did not need to be separately pled as a defense, as the denialof control did not raise any issue of fact which had not already been pled in the complaint.See also
Scully v. Wolff, 56 Misc. 468, 107 N.Y.S. 181 (App. Term 1907),  Bodine v. White,98 N.Y.S. 232 (App. Term 1906).

In this case, Defendant’s contesting Plaintiff’s claim in the complaint that it owns the note and mortgage could not take the Plaintiff by surprise as a general denial contests Plaintiff’s factual allegations in the complaint itself, and does not rely upon extrinsic facts. Since ownership of the note was pled in the complaint and is an element of the Plaintiff’s cause of action, Defendant did not waive the defense that Plaintiff did not own the note, because he made a general denial to the factual allegations contained in the complaint.

In fact, the identity of the owner of the note and mortgage is information that is often in the exclusive possession of the party seeking to foreclose. Mortgages are routinely transferred through MERS, without being recorded. The notes underlying the mortgages, as negotiable instruments, are negotiated by mere delivery without a recorded assignment or notice to the borrower. A defendant has no method to reliably ascertain who in fact owns the note, within the narrow time frame allotted to file an answer.

In jurisdictions such as New York, CPLR 3018(b) provides that an affirmative defense is any matter “which if not pleaded would be likely to take the adverse party by surprise” or “would raise issues of fact not appearing on the face of a prior pleading”.

CPLR 3018(b) also lists some common affirmative defenses, although the list is not exhaustive. The list of affirmative defenses in CPLR 3018(b) are those which raise issues such as res judicata or statute of limitations which are based on facts not previously alleged in the pleadings.

“The defendant has the burden of proof of affirmative defenses, which in effect assume the truth of the allegations of the complaint and present new matter in avoidance thereof.” 57 NY Jur. 2d Evidence and Witnesses 165″.

To survive motion to dismiss or Summary Judgement, it is important that Pro Se Homeowners using “Standing” as a foreclosure defense also review their PSA in order to include missing or lack of assignments.

This defense will be based on “Conveyance from the Depositor to the Trust”.

Homeowners arguments under these defense will be based that the Trustee violated the terms of the trust by acquiring the note directly from the sponsor’s successor in interest rather than from the Depositor, for instance ABC, as required by the PSA.

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 . The Trustee is then obligated to provide to the Depositor an acknowledgment of receipt of the assets before the closing date. PSA Article II, Section 2.01.

The rationale behind this requirement is to provide at least two intermediate levels of transfer to ensure the assets are protected from the possible bankruptcy by the originator which permits the security to be provided with the rating required for the securitization to be saleable.
Deconstructing the Black Magic of Securitized Trusts, Roy D. Oppenheim Jacquelyn K. Trask-Rahn 41 Stetson L. Rev. 745 Stetson Law Review (Spring 2012).

So to further the arguement, homeowners should argue that the assignment of the note and mortgage from original lender to Trustee which is called (A-D), rather than from the Depositor ABC violates section 2.01 of the PSA which requires that the Depositor deliver to and deposit the original note, mortgage and assignments to the Trustee.

In most cases, “if homeowner’s pleadings are in order”, meaning (The evidence submitted by homeowner that the note was acquired after the closing date and that assignment was not made by the Depositor), is sufficient to raise questions of fact in the court as to whether the Bank owns the note and mortgage, and usually will Deny motion to Dismiss(in non-juidical States) or preclude granting Bank’s summary judgment (in Judicial States).

The courts will usually find and conclude that the assignment of the homeowner’s note and mortgage, having not been assigned from the Depositor to the Trust, is therefore void as in being in contravention of the PSA.

For More Info How You Can Use Well Structured Pleadings Containing Facts and Case Laws Necessary To Win Your Foreclosure Defense Visit: http://www.fightforeclosure.net

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How Robo Signing Violations Can Help Homeowners Save Their Homes

30 Sunday Jun 2013

Posted by BNG in Discovery Strategies, Federal Court, Foreclosure Defense, Fraud, Judicial States, Litigation Strategies, Non-Judicial States, Notary, Trial Strategies

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Business, Court, Foreclosure, Mortgage law, Mortgage loan, Mortgage servicer, Real estate, United States

The Foreclosure process often involves affidavits, which are documents in which someone attests to a set of facts. Foreclosure affidavits typically involve the mortgage servicer confirming that the foreclosure is valid specifically, that the servicer or mortgage holder has a right to foreclose because the mortgagee has defaulted on the mortgage.

Foreclosure Process and Affidavits

Often, mortgage servicers looking to foreclose ask the court for what is called summary judgment, which means they want the court to rule in their favor without need for a trial based on clear evidence that the foreclosure is in order. To show the court that it should order foreclosure, the servicer or mortgage older typically submits affidavits and other proof (such as the mortgage note) showing who in fact owns the mortgage in question. Foreclosure affidavits also include statements about the status of the mortgage account, such as payment history, what is currently owed, when it went into default and how far behind the mortgagee is.

If the borrower does not contest the foreclosure, many foreclosure cases end at this point, with the judge granting summary judgment for the mortgage servicer. This allows the foreclosure to be executed and the property to be sold.

“Robo-signing” and Foreclosure Affidavits

Affidavits are documents submitted to the court in which a person attests to personal knowledge as to what is contained. This means that the person signing a foreclosure affidavit should have verified all information he or she is stating to be true.

The term “robo-signing” has been coined to describe rapid fire signing of foreclosure affidavits without adequately verifying the truth of what the affidavits state. Mortgage servicers who process very high volumes of mortgages in quick succession have been accused of robo-signing to speed up the foreclosure process.

In cases where the mortgage servicer did not review underlying documentation, foreclosure affidavits signed by the servicer may be challenged as inadequate to prove that foreclosure should occur. In some states, foreclosure affidavits must include copies of all documentation on which the affidavits rely. In these states, failure to include such documentation could also be challenged.

Challenging Foreclosure Affidavits

Typically, the mortgagee can challenge the foreclosure affidavits at the point when the bank or mortgage servicer has requested summary judgment. Citing robo-signing to challenge mortgage affidavits is one way to possible stave off summary judgment. Another way to challenge the affidavits is to challenge any inaccurate information about the mortgage and payment history contained in the affidavits.

Though foreclosure affidavits are often perfectly accurate, sometimes they may contain bad information. One example might be if the affidavits state an inaccurate amount owed or payment history. Often, mortgages have been sold many times, with information as to payment potentially lost in the shuffle. Other times, fees may have been attached to the account improperly.

What Happens Next?

Showing that a mortgage servicer’s foreclosure affidavits are inadequate does not resolve the underlying dispute about the property and whether it will be foreclosed. Lenders and mortgage servicers typically rely on affidavits in order to gain summary judgment in foreclosure actions.

In cases where the affidavits are successfully challenged or found lacking by the court, the borrower may not have won a final victory, but has staved off a final decision. Such borrowers then may face the lender or servicer at trial to resolve whether the property, in fact, may be foreclosed and sold.

To Learn How You Can Effectively Use Solid Arguments Such As Robo Signing To Challenge Your Wrongful Foreclosure Visit: http://www.fightforeclosure.net

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Using Decisions Involving Mortgage-Backed Securities to Challenge Your Wrongful Foreclosure

20 Monday May 2013

Posted by BNG in Appeal, Case Laws, Case Study, Federal Court, Foreclosure Defense, Fraud, Litigation Strategies, MERS, Mortgage Laws, Pro Se Litigation, Securitization

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Bank of America, Bank of New York, Court, Deutsche Bank, Foreclosure, Nevada, New York, RealtyTrac

In recent times, we have seen that many foreclosure cases that were litigated by Homeowners involve Mortgage Backed Securities.

Nevada’s foreclosure stats jumped 334 percent in February from the same month a year ago, leading the nation in year-over-year percentage gains, online foreclosure listing service RealtyTrac reported late Wednesday.

Other states with huge spikes in foreclosure activity include Maryland (319 percent), Washington (172 percent), New York (139 percent) and New Jersey (70 percent).

RealtyTrac showed 15,281 foreclosure filings on U.S. properties in February, a 2 percent increase from the previous month but down 25 percent from a year ago. Foreclosure filings include default notices, scheduled auctions and bank repossessions.

Florida had the nation’s highest foreclosure rate for the sixth straight month with one in every 282 housing units receiving a foreclosure filing, more than three times the national average.

Nevada was No. 2 for the fifth straight month with one in every 320 housing units receiving a filing.

“At a high level, the U.S. foreclosure inferno has been effectively contained and should be reduced to a slow burn in the next two years,” said RealtyTrac Vice President Daren Blomquist. “But dangerous foreclosure flare-ups are still popping up in states where foreclosures have been delayed by a lengthy court process or by new legislation making it more difficult to foreclose outside of the court system.”

When Homeowners are faced with a hurdle of fighting foreclosure to save their homes, some of the argument that has been proven effective in the Courts involves Securitization of the mortgages and the assignments involved in the transfer of the mortgages.

The following cases were some of the cases where valid arguments involving securitizations were used to defeat the Banks and Lenders in the Courts.  Orders to these cases shows that the case was either Dismissed without Prejudice or Summary Judgment that were reversed on Appeal.

CASE STUDIES:

Augenstein v. Deutsche Bank National Trust Company,

No. 2009-CA-000058-MR, Kentucky Ct. Appeals 2011

Trust: Soundview Home Loan Trust 2005-OPT4

Summary judgment for bank vacated and remanded.

“In this case, the complaint was filed on December 17, 2007, but the assignment of mortgage was not executed until January 3, 2008. Thus, Deutsche Bank had no present interest when it filed its complaint and failed to take any steps to correct this. Allowing Deutsche Bank to commence this action at a time when it lacked standing impermissibly allowed litigation to commence based upon mere expectancy of an interest.”

Bank of America v. Kabba,

276 P.3d 1006, 2012 OK 23

Trust: Structured Asset Investment Loan Trust Series 2004-BNC2

“In the present case, Appellee has only presented evidence of an indorsed-in-blank note and an “Assignment of Mortgage.” Appellee must prove that it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the foreclosure proceeding. In the present matter the timeliness of the transfer is in question. Since Bank of America did not file the blank indorsement until it filed its motion for summary judgment it is impossible to determine from the record when Bank of America acquired its interest in the underlying note.”

Bank of New York v. Gindele,

1st Dist. No. C-090251, 2010-Ohio-542

Trust: CWALT Alternative Loan Trust 2006-40T1

“A thorough review of the record reveals that the sole indication of its interest as mortgagee is an after-acquired assignment; and the bank failed to produce any evidence in the trial court affirmatively establishing a preexisting interest. Bank of New York has also asserted both that it had acted as an agent, and that its predecessor in interest had later ratified its foreclosure complaint. But because at the time of filing neither agency nor ratification had been alleged or documented, we will not entertain this argument on appeal.”

Bank of NY v. Cupo,

2012 WL 611849 (N.J.Super.App. Div. 2011

Motion to vacate default judgment was reversed for further findings on issue of standing, suggesting that lack of standing might make a judgment void, rather than treating standing as waived by default judgment.

Bank of New York v. Mulligan,

Index 29399/07 (August 25, 2010)

Trust: CWALT 2006-OC1

Mortgage Amount: $392,000

Bank’s application for an order of reference was denied  without prejudice.

“The Court will grant plaintiff, BNY an order of reference when it presents: an affidavit by either an officer of BNY or someone with a valid power of attorney from BNY, possessing personal knowledge of the facts; an affidavit from EJy Harless clarifying his employment history for the past three years and what corporation he serves as an officer; and, an affidavit by an officer of BNY, explaining why BNY would purchase a nonperforming loan from MERS, as nominee for DECISION ONE.”

Bank of New York v. Myers,

Index 18236/2008 (February 23, 2009)

Trust: CWABS 2006-22

The Bank’s summary judgment motion was denied, but within 60 days of the decision, the Bank was required to submit an Affidavit from Keri Selman explaining her employment history for the past three years and why Selman did not have a conflict of interest as the signor of many entities.

Bank of New York v. Orosco,

2007 NY SLIP OP 31501(U) (November 19, 2007)

Trust: CWABS, Series 2006-SD2

Mortgage Amount: $436,000

“Plaintiff must address a second matter if it applies for an order of reference after demonstrating that the alleged assignment was recorded. Plaintiff’s application is the third application for an order of reference received by me in the past several days that contain an affidavit from Keri Selman. In the instant action, she alleges to be an Assistant Vice-president of the Bank of New York. On November 16,2007, I denied an application for an order of reference in which Keri Selman, in her affidavit of merit claims to be “Vice President of COUNTRYWIDE HOME LOANS, Attorney in fact for BANK OF NEW YORK.” The Court is concerned that Ms. Selman might be engaged in a subterfuge, wearing various corporate hats. Before granting an application for an order of reference, the Court requires an affidavit from Ms. Selman describing her employment history for the past three years.”

Bank of New York v. Raftogianis,

13 A.3d 435 (2010), 418 N.J.Super. 323

Trust: American Home Mort. Investment Trust 2004-4

Mortgage Amount: $1,380,000

“Plaintiff, however, failed to establish that it was entitled to enforce the note as of the time the complaint was filed. In this case, there are no compelling reasons to permit plaintiff to proceed in this action. Accordingly, the complaint has been dismissed. That dismissal is without prejudice to plaintiff’s right to institute a new action to foreclose at any time, provided that any new complaint must be accompanied by an appropriate certification, executed by one with personal knowledge of the circumstances, confirming that plaintiff is in possession of the original note as of the date any new action is filed. That certification must indicate the physical location of the note and the name of the individual or entity in possession.”

Bank of New York v. Silverberg,

86 AD3d 274, 926 N.Y.S.2d 532 (2d Dept 2011)

Trust: CWALT 2007-14-T2

Mortgage Amount: $479,000

“In sum, because MERS was never the lawful holder or assignee of the notes described and identified in the consolidation agreement, the corrected assignment of mortgage is a nullity, and MERS was without authority to assign the power to foreclose to the plaintiff.  Consequently, the plaintiff failed to show that it had standing to foreclose.”

Bank of New York Mellon v. Teague,

Case No. 27-2009-CA-003121, Hernando Co. FL 2012

Trust: Novastar Mortgage Funding Trust 2005-1

“Second, to be entitled to foreclose, Plaintiff had to have been the holder of the Note and Mortgage at the time it filed this lawsuit.  The undisputed, summary judgment evidence before the Court was that Plaintiff was not the holder at the inception of this case as Plaintiff did not have the original Note in its possession when it filed suit and the Note did not contain the requisite endorsement. The fact that Plaintiff filed what it contends is an original note on June 28, 2012 does not change this result, as the endorsement on that Note is to a different company, not Plaintiff, and even if the Note had been properly endorsed, the fact that Plaintiff may have been the holder as of June, 2012 does not change its lack of standing at the inception of this case…

The motion is granted and this case is dismissed without prejudice.” (cites omitted)

Bank of New York v. Trezza,

14 Misc. 3d 1201(A), 2006 NY Slip Op 52367(U)

Trust: CWABS 2004-5

“In support of its motion, the plaintiff submits a purported assignment of the mortgage from MERS to the plaintiff; however, the mortgage does not empower MERS to assign the mortgage to any other entity. Furthermore, there is no proof that the Lender had previously assigned the mortgage to MERS, nor is there any other evidence to establish the plaintiff’s ownership rights under the mortgage.

Based on the foregoing, the plaintiff has failed to establish that it has standing as a plaintiff in this matter.”

Bank of New York v. Singh, 

Index No. 22434/2007, Kings County (December 14,  2007)

Trust: CWABS, Series 2004-6

An order of reference was denied where the mortgage assignment was executed on June 28, 2007, with an antedated effective date of May 31, 2007.  Suit was commenced on June 20, 2007. Judge Kurtz found that such an attempt to retroactively assign the mortgage was insufficient to establish plaintiff’s ownership interest at the time the action was commenced.

Bank of New York v. Torres,

Index No. 31704/2006, Kings County (March 11, 2008)

Trust: CWABS 2005-6

“ORDERED that the plaintiff’s ex parte application for an Order of Reference in Mortgage Foreclosure is denied without prejudice to renew due to plaintiffs failure to demonstrate its ownership of the note and mortgage sufficient to convey standing upon this plaintiff to commence this lawsuit on November 13,2006…”

Beaumont v. Bank of New York Mellon,

81 So.3d 553,554 (Fla. Dist. Ct. App. 2012)

Trust: NovaStar Mortgage Funding Trust 2005-3

Summary judgment for bank reversed and remanded.

“There is no evidence showing that Beaumont was on notice prior to the time his answer was filed that ownership of the note had been transferred from NovaStar to Mellon. In fact, the claimed transfer, alleged to have occurred on the day suit was filed, was either concealed by NovaStar for more than three years while it continued to pursue the action, or NovaStar backdated the assignment it finally produced on July 23, 2010, as justification for substituting Mellon as plaintiff. Under these circumstances, Beaumont may raise lack of standing when suit was filed as a defense.”

Congress v. U.S. Bank,

2100934, AL Ct. Civ. App. 

Trust: 2007-EMX1

Mortgage Amount: $104,400

“The trial court should have evaluated the issue whether the allonge had been created after the first trial under the preponderance-of-the-evidence standard. Because it used the higher clear-and-convincing-evidence standard to evaluate Congress’s evidence, this court has no choice but to reverse the trial court’s judgment and remand the cause to the trial court for it to evaluate the evidence adduced at trial under the appropriate standard of proof.”

 

Cutler v. U.S. Bank, N.A.,

Case No. 2D10-5709 (Fla. 2d DCA 2012)

Trust: Structured Asset Investment Loan Trust, 2006- BNC3

Summary judgment for Bank reversed and remanded.

“Accordingly, a genuine issue of material fact remained as to whether U.S. Bank was the proper holder of the note at the time it initiated the foreclosure action. The note includes the allonge endorsed in blank, but the allonge is not dated. If indeed U.S. Bank cannot establish that the allonge took effect prior to the date of the complaint, it did not have standing to bring suit…

Because a genuine issue of material fact remains, the trial court erred in entering a final summary judgment.”

Davenport v. HSBC Bank USA,

739 N.W.2d 383 (Mich. Ct. App. 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. We vacate the foreclosure proceedings and remand for proceedings consistent with this opinion.”

Deutsche Bank National Trust Co.v. Alemany,

Index: 11677/2007

(N.Y. Sup. Ct. Suffolk Co. 2008)

Trust: Soundview Home Loan Trust, 2006-OPT3

“ORDERED that plaintiffs ex parte application for an Order of Reference is denied without prejudice to resubmit due to plaintiffs failure to provide: … (2) proof on standing to commence this action as it appears plaintiff did not own the note and mortgage when the action was commenced…”

Deutsche Bank National Trust Company v. Barnett,

88 A.D.3d 636, 931 N.Y.S.2d 630

Trust: FFMLT 2005-FF11

Summary judgment of foreclosure in favor of bank reversed.

“However, the documentation submitted failed to establish that, prior to commencement of the action, the plaintiff was the holder or assignee of both the note and mortgage. The plaintiff submitted copies of two different versions of an undated allonge which was purportedly affixed to the original note pursuant to UCC 3-202 (2). Moreover, these allonges purporting to endorse the note from First Franklin, a Division of National City Bank of Indiana (hereinafter Franklin of Indiana) to the plaintiff conflict with the copy of the note submitted, which contains undated endorsements from Franklin of Indiana to First Franklin Financial Corporation (hereinafter Franklin Financial), then from Franklin Financial in blank.

“…The plaintiff also failed to establish that the note was physically delivered to it prior to the commencement of this action.”

 

Deutsche Bank National Trust Company v. Bialobrzeski,

3 A.3d 183 (Conn App. Ct. 2010)

Trust: Long Beach Mortgage Loan Trust 2006-3

The judgment for the trust was reversed and the case was remanded for a hearing on the motion to dismiss.

“The key to resolving the defendant’s claim is a determination of when the note came into the plaintiff’s possession. We cannot review the claim because Judge Domnarski made no factual finding as to when the plaintiff acquired the note. Without that factual determination, we are unable to say whether Judge Domnarski improperly denied the defendant’s motion to dismiss. Although it is the appellant’s responsibility to provide an adequate record for review; see Practice Book §§ 60-5 and 61-10; that cannot be the end of the matter because it concerns the trial court’s subject matter jurisdiction.

Deutsche Bank National Trust Company v. Brumbaugh,

2012 OK 3, 270 P.3d 151

Trust: Long Beach Mortgage Loan Trust 2002-1

Summary judgment for bank reversed and remanded.

“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… Being a person entitled to enforce the note is an essential requirement to initiate a foreclosure lawsuit. In the present case, there is a question of fact as to when Appellee became a holder, and thus, a person entitled to enforce the note. Therefore, summary judgment is not appropriate. If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. We reverse the granting of summary judgment by the trial court and remand back for further determinations as to when Appellee acquired its interest in the note.” (cites omitted)

Deutsche Bank National Trust Co. v. Byrams,

2012 OK 4, 275 P.3d 129

Trust: Argent Securities, Inc. ABPT Certs., Series 2006-W2

Mortgage amount: $526,320

Summary judgment of foreclosure in favor of bank reversed and remanded.

“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. In the present case, it appears Appellee is trying to use the assignment of mortgage in order to establish the purpose of delivery. The assignment of mortgage purports to transfer “the following described mortgage, securing the payment of a certain promissory note(s) for the sum listed below, together with all rights therein and thereto, all liens created or secured thereby, all obligations therein described, the money due and to become due thereon with interest, and all rights accrued or to accrue under such mortgage.” This language has been determined by other jurisdictions to not effect an assignment of a note but to be useful only in identifying the mortgage. Therefore, this language is neither proof of transfer of the note nor proof of the purpose of any alleged transfer.” (cites omitted)

Deutsche Bank National Trust Company v. Cabaroy,

Index: 9245/2007

 (N.Y. Sup. Ct. Suffolk Co. 2008)

Trust: New Century Home Equity Loan Trust, 2006-1

“ORDERED that the plaintiffs ex parte application for an Order of Reference in Mortgage Foreclosure is denied without prejudice to resubmit due to plaintiffs failure to provide: (1) proof of plaintiffs standing to commence this action;”

Deutsche Bank National Trust Company v. Castellanos,

2008 NY Slip Op 50033(U)

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Argent Mort. Sec., Inc. ABPT Certs., Series 2005-W4

Mortgage Amount: $382,500

“Did Mr. Rivas somehow change employers on July 21, 2006 or he is concurrently a Vice President of both assignor Argent Mortgage Company, LLC and assignee Deutsche Bank? If he is a Vice President of both the assignor and the assignee, this would create a conflict of interest and render the July 21, 2006-assignment void.

Also, Mr. Rivas claims that Argent Mortgage Company, LLC is located at 1100

Town and Country Road, Suite 200, Orange, California, while Deutsche Bank has its offices at One City Boulevard West, Orange, California. Did Mr. Rivas execute the assignment at 100 Town and Country Road, Suite 200, and then travel to One City Boulevard West, with the same notary public, M. Reveles, in tow? The Court is concerned that there may be fraud on the part of Deutsche Bank, Argent Mortgage Company, LLC, and/or MTGLQ Investors, L.P., or at least malfeasance. If plaintiff renews its motion for a judgment of foreclosure and sale, the Court requires a satisfactory explanation by Mr. Rivas of his recent employment history.”

Deutsche Bank National Trust Co. v. Clouden,

Index No. 277/07

(N.Y. Sup. Ct. Kings Co. 2007)

Trust: Argent Mort. Sec., Inc. ABPT Certs., Series 2005-W3

Mortgage Amount: $382,500

“In the instant action, Argent’s defective assignment to Deutsche Bank affects the standing of Deutsche Bank to bring this action. The recorded assignment from Argent to Deutsche Bank, made by “Tamara Price, as Authorized Agent” on behalf of “AMC Mortgage Services Inc. as authorized agent,” lacks any power of attorney granted by Argent to AMC Mortgage Services, Inc. and/or Tamara Price to act on its behalf.”

Deutsche Bank National Trust Company v. Benjamin Cruz,

Index No. 31645/06

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Soundview Home Loan Trust 2005-OPT3

“In support of plaintiff’s application, it submits a purported assignment of the mortgage from the original lender to plaintiff. The purported assignment is dated October 27, 2006. However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced.”

Deutsche Bank National Trust Company v. Yobanna Cruz,

Index No. 2085/07

(N.Y. Sup. Ct. Kings Co. 2007)

Trust: Long Beach Mort. Loan Trust 2006-2

Mortgage Amount: $382,500

“In support of plaintiffs application, it submits a purported assignment of the mortgage from the original lender to plaintiff. The purported assignment is dated January 18, 2007 and states in pertinent part “effective January 12, 2007.” However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced.”

Deutsche Bank National Trust Company v. Cuesta,

2012 NY Slip Op 32590(U) (N.Y. Sup. Ct. Suffolk Co.  2012)

Trust: American Home Mortgage Investment Trust,

Series 2007-2

Deutsche Bank’s motion for an order of reference was denied without prejudice, and Deutsche Bank was warned that if it chose to refile, it must include:

“4) Evidentiary proof, including an affidavit from an individual with personal knowledge of the facts as to the proper and timely assignment of the subject note and mortgage or endorsement of the subject note and assignment of the subject mortgage, sufficient to establish that plaintiff was the owner or holder of the subject note and mortgage at the time the action was commenced…

In his affidavit, the plaintiff’s representative has not addressed the particulars of the transfer of the note or the assignment of the mortgage to the plaintiff. Additionally, the assignment dated January 27, 2011, which is referred to in the plaintiff’s complaint, has not been attached to the moving papers.”

Deutsche Bank v. Decker,

Case 09-20548-CI-13 (Pinellas County, Florida, 2010)

Trust: Morgan Stanley Dean Witter Cap. PSA dated 5-1- 2001

“However, there remain two concerns.

The first is related to evidence that the Plaintiff had standing at the time the original complaint was initially filed. The “new” assignment does not solve this problem because it was executed on February 17, 2010, and thus does not demonstrate standing in 2009…

The second problem is related to the ownership issue but is focused on the validity of the newly obtained assignment.  At the hearing Defendant’s counsel indicated concerns regarding this document based upon his assertion that the 2010 assignment was from a company that went bankrupt years ago…”

(Dismissal granted of bank/plaintiff’s first amended complaint)

Deutsche Bank National Trust Co. v. Ezagui,

Index: 3724/07

(N.Y. Sup. Ct. Kings Co. 2007)

Trust: Ameriquest Mortgage Securities, Inc., ABPT

Certificates, Series 2004-R10

Mortgage Amount: $412,250

“According to plaintiff’s application, defendant Ezaguis’ default began with the nonpayment of principal and interest due on September 1, 2006. Yet, more than five months later, plaintiff DEUTSCHE BANK was willing to take an assignment of a nonperforming loan from AMERIQUEST. Further, both assignor AMC, as Attorney in Fact for AMERIQUEST, and assignee, DEUTSCHE BANK, have the same address, 505 City Parkway West, Orange, CA 92868. Plaintiff’s “affidavit of amount due,” submitted in support of the instant application for a default order of reference was executed by Tamara Price, on February 16, 2007. Ms. Price states that “I am the Vice President for DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF AMERIQUEST MORTGAGE SECURITIES, INC., ASSET-BACKED PASS THROUGH CERTIFICATES, SERIES 2004-R10, UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF OCTOBER 1, 2004, WITHOUT RECOURSE (DEUTSCHE BANK).” However, the February 7, 2007 assignment from AMERIQUEST, by AMC, its Attorney in Fact, is executed by Tamara Price, Vice President of AMC. The Tamara Price signatures on both the February 7, 2007 affidavit and the February 16, 2007 assignment are identical. Did Ms. Price change employers from February 7, 2007 to February 16, 2007? The Court is concerned that there may be fraud on the part of AMERIQUEST, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from Ms. Price, describing her employment history for the past three years. Further, irrespective of her employment history, Ms. Price must explain why DEUTSCHE BANK would purchase a nonperforming loan from AMERIQUEST, and why  DEUTSCHE BANK shares office space in Orange, California, with AMERIQUEST.”

Deutsche Bank National Trust Company v. Gilbert,

2012 IL App (2d) 120164, No. 2-12-0164 (September  25, 2012)

Trust: GSAMP Trust 2005-WMC2

“Deutsche Bank attempted to rebut this apparent lack of standing by pointing to the Assignment and the Loch affidavit. However, these items lack evidentiary value. Before the trial court, Deutsche Bank argued that the language of the Assignment established that the transfer of the mortgage had occurred years earlier, on November 1, 2005. On appeal, however, Deutsche Bank wisely abandons that argument (which finds no support in the actual language of the Assignment), and now concedes that the Assignment “does not establish anything about when Plaintiff [Deutsche Bank] obtained its interest in the subject loan.” We agree with this statement. Although the Assignment contains two dates—the date of the trust for which Deutsche Bank is a trustee, and the date on which the Assignment was executed and notarized—it does not explicitly state when the mortgage was assigned to Deutsche Bank. All that can be known about when the assignment took place is that it was no later than the date on which the Assignment was executed.”

Deutsche Bank National Trust Company v. Grant,

Index: 39192/07

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Soundview Home Loan Trust 2006-OPT2

Mortgage Amount: $456,000

“Also, the Court requires an explanation from an officer of plaintiff DEUTSCHE BANK as to why, in the middle of our national subprime mortgage financial crisis, DEUTSCHE BANK purchased a non-performing loan [from] OPTION ONE.  The Court wonders if DEUTSCHE BANK violated a corporate fiduciary duty to its stockholders with the purchase of a loan that defaulted more than five months prior to its assignment to DEUTSCHE BANK.”

 

Deutsche Bank National Trust Co. v. Haque,

36 Misc. 3d 1203(A)

(N.Y. Sup. Ct. Queens Co. 2012)

Trust: Home Equity Mortgage Loan Trust, Series INABS

2005-B

Mortgage Amount: $279,200

“In addition, to the extent Plaintiff Deutsche Bank asserts the note was transferred to ”the trust,” pursuant to a “pooling and servicing” agreement between IndyMac ABS, Inc. as depositor, IndyMac Bank SM as seller and “master servicer” and Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2005-B, issuer, such agreement does not establish that IndyMac assigned the note to plaintiff Deutsche Bank.  Plaintiff Deutsche Bank does not otherwise allege a basis for a valid assignment of the note.” (cites omitted)

 

Deutsche Bank National Trust Co. v. Harris,

Index: 35549/07

(N.Y. Sup. Ct. Kings Co. 2008)

Mortgage Amount: $408,000

Deutsche Bank’s Motion was denied without prejudice, with leave to renew, providing the Court:

“…a satisfactory explanation to various questions with respect to: the October 23, 2007 assignment of the instant mortgage to plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY (DEUTSCHE BANK); the employment history of one Erica Johnson-Seck, who executed the affidavit of facts in the instant application as an officer of DEUTSCHE BANK; plaintiff DEUTSCHE BANK’S purchase of the instant non- performing loan; and why does INDYMAC BANK, F.S.B., (INDYMAC), MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), and plaintiff DEUTSCHE BANK all share office space at 460 Sierra Madre Villa, Pasadena, CA 91107.”

Deutsche Bank National Trust Co. v. Maraj,

2008 NY Slip Op 50176 (U)

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: INDX 2006-AR6

Mortgage Amount: $440,000

“With the assignor MERS and assignee DEUTSCHE BANK appearing to be engaged in possible fraudulent activity by: having the same person execute the assignment and then the affidavit of facts in support of the instant application; DEUTSCHE BANK’s purchase of a non-performing loan from INDYMAC; and, the sharing of office space in Suite 400/500 in Kansas City, the Court wonders if the instant foreclosure action is a corporate “Kansas City Shuffle,” a complex confidence game…

A Kansas City Shuffle is when everybody looks right, you go left . . .

It’s not something people hear about. Falls on deaf ears mostly . . .

No small matter. Requires a lot of planning. Involves a lot of people. People connected by the slightest of events. Like whispers in the night, in that place that never forgets, even when those people do.

In this foreclosure action is plaintiff DEUTSCHE BANK, with its “principal place of business” in Kansas City attempting to make the Court look right while it goes left?”

Deutsche Bank National Trust Co. v. Marche,

Index: 9156/07

(N.Y. Sup. Ct. Kings Co. 2009)

Trust: Securitized AB Receivable LLC Trust 2006-FR4

“Why an Order should not be made and entered:

VACATING the order of foreclosure and dismissing the instant action in its entirety upon the grounds that (i) Plaintiff has misrepresented itself by alleging that it is the owner and holder of the mortgage in order to fraudulently commence this action when in fact no valid assignment has been made to Plaintiff from Fremont Investment & Loan; (ii) that this Court lacks subject matter jurisdiction where Plaintiff is not and has not been the true owner and holder of the note and mortgage at issue; and (iii) that the assignment at issue is champertous in violation of Section 489 of the New York State Judiciary Law because the sole purpose of the defective assignment was to facilitate fraudulent litigation begun by Plaintiff prior to the assignment’s execution.”

Deutsche Bank National Trust Co. v. Matthews,

2012 OK 14, 273 P.3d 43 (2012)

Trust: JP Morgan Mortgage Acquisition Trust 2007-CH3

Summary Judgment for bank reversed and remanded.

“However, the Assignment of Real Estate Mortgage attached to its motion for summary judgment is executed on June 9, 2009, by a Vice President of Chase Bank USA, N.A. The note attached to its motion for summary judgment, however, shows an allonge from Chase Bank USA, N.A., to Chase Home Finance, LLC. Further, this purported transfer of the note occurred six months after the action was commenced. Deutsche Bank also by its own admission states it acquired its interest in the note and mortgage subsequent to the filing of this action.”

Deutsche Bank v. McCarthy,

Case No. 1:07 3071 (N.D. Ohio) (Judge Dowd)

Trust: Argent Mortgage Securities, ABPT Certs., Series 2005-W5

“The Northern District of Ohio is swamped with foreclosure cases brought in diversity. A large number of these cases are brought by plaintiffs who declare that they are holders of the note and mortgage but who initially supply no proof of that fact. When pressed, it is typically the case, as here, that the plaintiff actually is not the holder of the note and mortgage until some time after the filing of the complaint (often mere days!) and had, therefore, made a false statement to the court. Sometimes that statement of ownership is only in the complaint; sometimes, as in the instant case, it is actually in a sworn affidavit. See Doc. No. 1-4, ¶ 7. This is completely unacceptable, especially because this situation is likely to be repeated if not stopped by Court order.”

Deutsche Bank National Trust Company v. McRae

27 Misc.3d 247 (Sup. Ct. Alleghany County 2010)

Trust: not identified.

To establish standing, the bank submitted an additional copy of a note which was different from the one attached to the complaint. The court rejected it, stating: “Obviously, the endorsements…post-date the commencement of this case…and are ineffective.”

Deutsche Bank National Trust Co. v. Mitchell,

27 A.3d 1229 – NJ Appellate Div. 2011

Trust: Long Beach Mortgage Loan Trust 2006-3

Mortgage Amount: $150,000

Summary judgment reversed.

“After reviewing the record in light of the contentions advanced on appeal, we reverse the grant of summary judgment and final judgment and vacate the sheriff’s sale, holding that Deutsche Bank did not prove it had standing at the time it filed the original complaint. 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. Given that Deutsche Bank has not demonstrated standing, we cannot decide at this time whether it was a holder in due course of the mortgage.”

Deutsche Bank National Trust Co. v. Nicholls.

Index 2248/07

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Long Beach Mort. Loan Trust 2005-WL2

“In support of plaintiff’s application, it submits a purported assignment of the mortgage from the original lender to plaintiff. The purported assignment is dated January 24, 2007 and states in pertinent part “[e]ffective January 17, 2007.” However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced. … Plaintiffs attempt to foreclose upon a mortgage in which it had no “legal or equitable interest was without foundation in law or fact…”

Deutsche Bank National Trust Company v. Parisella,

VT App. Ct., 2010, Docket No. S0758-09 CnC

Trust: FFMLT Trust 2005-FF11

Homeowner’s Motion to Dismiss granted.

“The court concludes that a plaintiff seeking foreclosure lacks standing unless it can show it was entitled to enforce the mortgage at the time it filed its complaint for foreclosure…

Here, there is no evidence in the record indicating that Deutsche Bank was the assignee of the note when it filed its complaint on June 15, 2009.  Nor is there even an allegation to that effect.  There is an allegation that the mortgage was assigned to Deutsche Bank before it filed its complaint, but since the note is a negotiable instrument, the transfer of the mortgage does not also transfer the note…

Deutsche Bank National Trust Company v. Richardson,

2012 OK 15, __P.3d__

Trust: MASTR 2007-02

Summary Judgment for bank reversed and remanded.

“In the present case, Appellee has presented evidence in support of the motion for summary judgment of an indorsed-in-blank note, and an “Assignment of Mortgage” both arguably obtained after the filing of the petition. Appellee must prove it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the foreclosure proceeding. In the present matter the timeliness of the transfer is a disputed fact issue. Since Deutsche Bank did not file the blank indorsement until it filed its motion for summary judgment it is impossible to determine from the record when Deutsche Bank acquired its interest in the underlying note.”

Deutsche Bank National Trust Co. v. Ryan,

Index 33315/07 (January 29, 2008)

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Long Beach Mort. Loan Trust 2005-WL1

An order of reference was denied by Judge Kurtz where the bank plead a mortgage assignment executed, September 31, 2007, after the suit was commenced August 31, 2007, but with an attempted backdate to July 30, 2007.

Deutsche Bank National Trust Co. v. Ryan,

Case No. 2011-12070, Hillsborough Co. Fla. 2012

Trust: Novastar Mortgage Funding Trust, 2006-5

“Second, Plaintiff lacked standing at the inception of this case. Though Plaintiff alleged it had standing, the Note attached to its Complaint lacked an endorsement, and Plaintiff introduced no sworn evidence to overcome Defendant’s affidavit that it lacked standing when it filed suit…

In light of the foregoing, this case is dismissed without prejudice and without leave to amend.”

Deutsche Bank National Trust Co. v. Sampson III,

Index 26320/07 (January 16, 2008)

(N.Y. Sup. Ct. Kings Co. 2009)

Trust: HSBC Bank USA, Inc., Series HASCO 2006-HE1

“The purported assignment is dated August 10, 2007 and states in pertinent part “this assignment is effective as of the 22nd day of June, 2007.” However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced. Plaintiff’s attempt to foreclose upon a mortgage in which it had no “legal or equitable interest was without foundation in law or fact…” (cites omitted)

Deutsche Bank National Trust Company v. Seidlin,

Index:105162/2009 NY County, 2011NY Slip Op

31551(U)

Trust: American Home Mortgage Assets Trust 2006-5

Mortgage Amount: $580,000

Bank’s motion granted for leave to voluntarily   discontinue the action “due to the assignment of mortgage being incorrectly and/or incompletely acknowledged” after two years of litigation.

Deutsche Bank National Trust Co. v. Steele,

2008 U.S. Dist. LEXIS 4937 (S.D. Ohio January 8, 2008)

“I cannot tell from the exhibits plaintiff has submitted in support of its motion whether Deutsche Bank owned the note and mortgage when the complaint was filed. Plaintiff alleges ownership in the complaint, but defendants’ answer does not admit the truth of that allegation…The Court cannot grant summary judgment unless Deutsche Bank offers evidence from which a finder could conclude by a preponderance that it owned the note and mortgage when the complaint was filed.  Further, if plaintiff has evidence of ownership, it must explain how that ownership is consistent with the uncontroverted evidence that when the complaint was filed, MERS was the mortgage holder acting on behalf of Mortgageit, Inc.”

Deutsche Bank National Trust Company v. Vasquez,

Index: 4924/11, 2012 NY Slip Op 31395(U)

Trust: Morgan Stanley ABS Cap. I, Inc. Trust, 2007-HE7

Mortgage Amount: $435,100

“A foreclosure plaintiff has the requisite standing to commence a mortgage foreclosure action if “it is both the holder or assignee of the subject mortgage and the of the underlying note at the time the action is commenced”… In this action plaintiff does not allege that it is an assignee of the Note, but instead, as previously referenced, produced a copy of the original Note between defendants and New Century. They argue that delivery of the unindorsed Note was sufficient to confer standing. On the prior motion the court overlooked the necessity of proper indorsement required to transfer ownership and render the transferee a holder…

Also influencing this court’s determination on reargument are the repeated issues regarding standing which revolve around proper assignments, particularly of mortgage notes which have ensued following creation of the MERS system and the birth of mortgage backed securities.”

Deutsche Bank National Trust Company v. Williams,

Case No. 11-00632 (D. Hawaii 2011)

Trust: Morgan Stanley ABS Capital I, Inc. Trust 2007- NC1

“This evidence presents two problems for Plaintiff. First, if Plaintiff did indeed obtain the Mortgage and Note through a 2007 PSA, then the 2007 PSA is yet another reason why the January 13, 2009 assignment is a nullity and the Complaint’s assertion that Plaintiff obtained the Mortgage and Note from Home 123 is untrue. Second, the evidence presented does not actually establish that Plaintiff received the Mortgage and Note through the PSA — there is no evidence on the record establishing what mortgages were included in the PSA. Thus, although Plaintiff might have obtained the Mortgage and Note through this PSA, there is no evidence showing or even suggesting that this is indeed the case. As a  result, there is no evidence — at least on the record presented before the court –creating a genuine issue of material fact that Plaintiff was assigned the Mortgage and Note on which it now seeks to foreclose.”

Deutsche Bank National Trust Company v. Wilson,

Case A-1384-09T1, N.J. App. Div. 2011

Trust: WaMu 2007-HEI Trust

Summary judgment of foreclosure was reversed and remanded “to resolve the issue of the bona fides of the assignment.”  The issue regarding the assignment was discussed in Footnote 1:

“The assignment was executed by an individual identified as Laura Hescott who signed the assignment as an assistant vice-president of Washington Mutual Bank. Ms. Hescott has been identified as an employee of Lender Processing Services, Inc. (“LPS”), a servicer of default mortgages. The bona fides of the practices of this service provider have been the subject of increased judicial scrutiny. See, e.g., In re Taylor, 407 B.R. 618, 623 (Bankr. E.D. Pa. 2009).”

 

Deutsche Bank Trust Company Americas v. McCoy,

20 Misc 3d 1202 (A) 2010 NY Slip Op 51664(U)

Trust not disclosed.

“Although the February 28, 2008 assignment states it is “effective January 19, 2008,” such attempt at retroactivity is ineffectual. If an assignment is in writing, the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient, unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated…A retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment… (Plaintiff’s failure to submit proper proof, including an affidavit from one with personal knowledge, that the plaintiff was the holder of the note and mortgage at the time the action was commenced, requires denial of the plaintiff’s application for an order of reference. (cites omitted)

Deutsche Bank Trust Company Americas v. Peabody,

866 N.Y.S. 2d 91 (N.Y. Sup. Ct. 2008)

Trust not disclosed.

Mortgage Amount: $320,000

Foreclosure dismissed.

“Again, here, there is no evidence that it took physical delivery of the note and mortgage before commencing this action, and again, the written assignment was signed after the defendant was served. The assignment’s language purporting to give it retroactive effect, absent a prior or contemporary delivery of the note and mortgage, is insufficient to grant it standing.”

Feltus v. U.S. Bank, N.A.

80 So.3d 375 (Fla. 2nd DCA 2011)

Trust: MASTR Adj. Rate Mortgage Trust 2007-3

Summary judgment for bank reversed.

“The properly filed pleadings before the court when it heard U.S. Bank’s motion for summary judgment were a complaint seeking to reestablish a lost note to which was attached a copy of a note made payable to Countrywide, N.A., Feltus’s answer and affirmative defenses alleging that the note attached to the complaint contradicts the allegation of the complaint that U.S. Bank is the owner of the note, a motion for summary judgment alleging a lost note of which U.S. Bank is the owner, and an affidavit of indebtedness alleging that U.S. Bank was the owner and holder of the note described in the complaint. The endorsed note that U.S. Bank claimed was now in its possession was not properly before the court at the summary judgment hearing because U.S. Bank never properly amended its complaint.2 In addition, the complaint failed to allege that U.S. Bank “was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.” § 673.3091(a). The affidavit of indebtedness provided no assistance in this regard because the affiant did not assert any personal knowledge of how U.S. Bank would have come to own or hold the note.” (cites omitted)

Federal Home Loan Mortgage Corporation v. Schwartwald,

Slip Opinion No. 2012-Ohio-5017

On October 31, 2012, the Ohio Supreme Court addressed the issue of standing in foreclosures.  Although this case did not involve a mortgage-backed trust, it will have a significant impact on foreclosures by trusts because the Court ruled that the Federal Home Loan Mortgage Corporation lacked standing to sue when it obtained the mortgage by an assignment from the real party in interest after the foreclosure suit was commenced. This was yet another case where the note was “not available” at commencement.  Later in the case, Federal Home Loan filed a copy of the note, with undated endorsements.  The motion for summary judgment was supported by an Affidavit signed by well-known Wells Fargo robo-signer John Herman Kennerty.  The appellate court had ruled that Federal Home Loan cured the lack of standing defect by the assignment of the mortgage and transfer of the note prior to entry of judgment. The Ohio Supreme Court disagreed – citing decisions taken by Courts in Connecticut, Florida, Maine, Missouri, Oklahoma and Vermont.

Gascue v. HSBC USA, N.A.,

__So.3d__ (Fla. 4th DCA 2012)

Trust: Deutsche Alt-B Securities Mortgage Loan Trust, Series 2006-AB4

Reversal and remand of denial of motion to vacate final judgment of foreclosure.

“There is no evidence on the record indicating that Bank was the holder of the mortgage at the time the complaint was filed. Just as in Rigby, Bank attached a mortgage to its complaint in which it was not listed as the lender, but rather “Pinnacle Direct Funding” was. The only evidence that Bank is the owner and holder of the note is a sworn affidavit. However, this affidavit was filed three years after the complaint and does not establish when Bank became the holder of either the note or the mortgage, much less establish that Bank was the holder of said instruments at the time the complaint was filed. See id. (reversing the trial court in part because the supporting affidavit in that case did not establish the date on which the bank acquired possession of the note).”

Gee v. U.S. Bank, N.A.,

72 So.3d 211 (Fla. 5th DCA 2011)

Trust: Structured Asset Investment Loan Trust 2005-10

“Here, the record does not contain the original Mortgage. To prove its ownership, U.S. Bank filed a copy of the Mortgage as well as two assignments. The first assignment transferred the Mortgage from Advent Mortgage, the original mortgagee, to Option One. The second assignment purported to transfer the mortgage from American Home, as successor in interest of Option One, to U.S. Bank. However, and significant to our consideration, U.S. Bank provided nothing to demonstrate how American Home came to be the successor in interest to Option One.

Incredibly, U.S. Bank argues that “[i]t would be inequitable for [Ms. Gee] to avoid foreclosure based on the absence of an endorsement to [it].” But that argument flies in the face of well-established precedent requiring the party seeking foreclosure to present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” (cites omitted)

(Summary Judgment reversed.)

Gonzalez v. Deutsche Bank National Trust Company,

Case No. 2D10-5561 (Fla. 2d DCA 2012)

Trust: American Home Mortgage Investment Trust

2006-1

“The problem is that the additional stamp and handwritten notation transferring the note from American Home Mortgage to Deutsche Bank is not dated. Accordingly, Deutsche Bank failed to establish its standing by showing that it possessed the note when it filed the lawsuit. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) (“Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action.”). As a result, Deutsche Bank has not refuted Gonzalez’s affirmative defense, and a genuine issue of material fact exists that should have precluded the entry of summary judgment.”

(Summary judgment for Deutsche Bank reversed.)

HSBC Bank USA, N.A. v. Antrobus,

20 Misc 3d 1127(A), 2008 NY Slip Op 51639(U)

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Renaissance Home Equity Loan Trust 2006-4

Mortgage Amount: $465,000

“Therefore, the instant application for an order of reference is denied without prejudice, with leave to renew. The Court will grant an order of reference to plaintiff HSBC upon presentation to this court of: an affidavit by either an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson clarifying his employment history for the past three years and what corporation he serves as an officer; and, an affidavit by an officer of HSBC explaining why HSBC purchased a nonperforming loan from Delta Funding Corporation, and why HSBC, OCWEN, MERS, Deutsche Bank and Goldman Sachs all share office space in Suite 100.”

HSBC Bank USA v. Beirne,

212-Ohio-1386, Ohio App. Ct. 9th District

Summary judgment for bank reversed.

“In the affidavit that was attached to the supplement to the motion for summary judgment, Mr. Spradling averred that HSBC had been assigned the loan on June 5, 2009, and that “[a] true and correct copy of the Assignment was attached to the Complaint filed by HSBC.”  However, a review of the complaint and the exhibits attached thereto reveals that there was no evidence that the note had been assigned to HSBC.  Moreover, an assignment dated June 5, 2009, could not have been attached to the complaint which was filed on May 11, 2009.”

HSBC Bank USA, N.A. v. Charlevagne,

20 Misc 3d 1128(A), 2008 NY Slip Op 51652(U)

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Renaissance Home Equity Loan Trust 2005-3

Mortgage Amount: $480,000

“Therefore, the instant application for an order of reference and related relief is denied without prejudice. The Court will grant plaintiff HSBC an order of reference and related relief when it submits an affidavit by either an officer of HSBC, or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts.”

HSBC Bank USA v. Cherry,

18 Misc3d 1102 (A), 2007 NY Slip Op 52378(U)

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Renaissance Home Equity Loan Trust 2005-4

“Further, the Court, upon renewal of the application for an order of reference requires a satisfactory explanation to questions with respect to: the assignment of the instant nonperforming mortgage loan from the original lender, Delta Funding Corporation to HSBC Bank; the employment history of one Scott Anderson, who assigned this mortgage to HSBC and then swears to be HSBC’s servicing agent; and the relationship between HSBC, Ocwen Federal Bank, FSB (OCWEN), Deutsche Bank and Goldman Sachs, who all seem to share office space at Suite 100 of 1661 Worthington Road, West Palm Beach, Florida 33409 (Suite 100).”

HSBC Bank USA v. Cipriani,

Index: 12365-2007

(N.Y. Sup. Ct. Suffolk Co. 2008)

Trust: SG Mort. Sec. Trust 2005-OPT1

Order for reference denied without prejudice. To resubmit, plaintiff must provide “proof on standing to commence this action as it appears that the plaintiff did not own the note and mortgage when the action was commenced.”

HSBC Mortgage Services, Inc. v. Jack, 

Index No: 14750/2007

(N.Y. Sup. Ct. Suffolk County 2008)

Denied without prejudice due to bank’s failure to provide proof that it had standing to bring the action.

 

HSBC Bank USA v. Palladino,

2011 IL App (2d) No. 08-CH-4548

Trust: Fremont Home Loan Trust 2006-D

Summary judgment reversed and remanded.

“In the present case, there are genuine issues of material fact with respect to whether there was an assignment of the mortgage and note from Fremont to HSBC Bank. Although HSBC Bank represents that it produced the assignment, the document on which it relies, by its very terms, was, at worst, not an assignment and, at best, inherently inconsistent as to whether it was an assignment. Indeed, the document states that MERS as nominee for Fremont “did” assign (past tense) the mortgage and note to HSBC Bank prior to November 13, 2008, yet also states that the assignment “is” made (present tense) without recourse and without representation or warranty.

In addition to the purported assignment’s inconsistent terms, the document upon which HSBC Bank relies is vague with respect to the date of the purported assignment. The document has a stamp which appears to reflect that it was recorded on December 17, 2008, but states that the assignment was made “prior to” November 13, 2008. The document itself is undated, as is the notary’s certificate. The date of the assignment is material because standing to sue must exist at the time the action is commenced.” (cites omitted)

HSBC Bank USA v. Perez,

Case No. EQ4970 (Washington County, Iowa 2009)

Trust: Fieldstone Mort. Investment Trust 2005-2

“The Perezs argue that the Pooling and Servicing Agreement for Fieldstone Mortgage Investment Trust Series 2005-2 governs when and how the Trustee in this case, HSBC Bank, the Plaintiff, may acquire notes and mortgages.  Additionally, that agreement governs when and how a mortgage owned by the trust may be foreclosed upon.  The Perezs further state that the agreement prohibits the acquisition of mortgages that are in default…The Plaintiff has also submitted documentation that shows the transfer of interest in the mortgage from Fieldstone to HSBC occurred on February 9, 2009.  Clearly, based upon the Plaintiff’s own documentation, the default occurred prior to the transfer.

According to the Transfer and Servicing Agreement submitted by the Perezs, and allegedly applicable to the Plaintiff, the trust servicer is only allowed to “substitute a defaulted Mortgage Loan with a Qualifying Substitute Mortgage Loan…This document seems to state that the mortgage at issue could only be transferred if it were current on the date it was transferred.  Accordingly, it appears that this mortgage was inappropriately transferred to the Plaintiff as it was in default at the time of transfer.  As such, a question is raised regarding whether the present Plaintiff has standing to bring this foreclosure action.”

HSBC Bank USA, N.A. v. Sene,

34 Misc 3d 1232 (A), 2012 NY Slip Op 50352(U)

(N.Y. Sup. Ct. Kings Co. 2012)

Trust: Ace Securities Corp. Home Equity Loan Trust

2007-HE4

“During the bad faith hearing, two separate notes with attendant assignments were put into evidence by the plaintiff…

This Court emphatically now joins the judicial chorus who have been wary of the paperwork supplied by plaintiffs and their representatives. There is ample reason for Chief Judge’s requirement for an attorney affirmation in residential foreclosure cases. As stated by Chief Judge Jonathan Lippman, “we cannot allow the courts in New York State to stand idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs – such as a family home – during this period of economic crisis…

It is clear in this case, without further hearings, that a fraud has been committed upon this Court.  Thus, the only remedy that can be utilized by this Court is to stay these proceedings and any mortgage foreclosure until this matter is cleared up to the satisfaction of this Court.”

James v. U.S. Bank, N.A.,

D. Maine, No. 2:09-cv-84-JHR, January 31, 2011

Trust: BAFC 2006-1

Sanctions were imposed because of an Affidavit  submitted by GMAC employee and exposed robo-signer Jeffrey Stephan:

“In the case at hand, however, GMAC, the party that submitted the affidavit and the affiant’s employer, was on notice that the conduct at issue here was unacceptable to the courts, which rely on sworn affidavits as admissible evidence in connection with motions for summary judgment. In 2006, an identical jurat signed under identical circumstances resulted in the imposition of sanctions against GMAC in Florida. Affidavit of Thomas A Cox (Docket No. 153) ¶ 4 & Exhs. B-D. GMAC’s assertion that these sanctions applied only “within the State of Florida,” Plaintiff and GMAC Mortgage LLC’s Memorandum in Opposition to Defendant’s Motion for Relief Pursuant to Fed. R. Civ. P. 56(g) (Docket No. 177) at 7, is specious. It would be clear to any lawyer representing GMAC in any court action, including those involved in the Florida action, that a jurat should not be signed under the circumstances involved in that case or here and that such a jurat will never be acceptable to any court. Stephan’s actions in this case strike at the heart of any court’s procedures, are egregious under the circumstances, and must be deemed worthy of sanctions.

LaSalle Bank, N.A. v. Ahearn,

59 A.D.3d 911, 875 N.Y.S. 2d 595 (N.Y. App. Div. 2009)

Trust: Bear Stearns Asset-Backed Securities I, LLC,

Series 2004-FR3

Mortgage Amount: $180,000

“Here, the written assignment submitted by plaintiff was indisputably written subsequent to the commencement of this action and the record contains no other proof demonstrating that there was a physical delivery of the mortgage prior to bringing the foreclosure action (see id.). In fact, the language in the amended complaint indicating that the assignment to plaintiff had not yet occurred would clearly contradict any assertion to the contrary. Accordingly, Supreme Court correctly found that plaintiff did not have standing and the amended complaint must be dismissed, without prejudice.”

LaSalle Bank v. Charleus 

Index No. 22733/2007 (January 3, 2008)

(N.Y. Sup. Ct. Kings Co. 2008)

An order of reference was denied by Judge Kurtz where the bank plead a mortgage assignment executed, July 2, 2007, after the suit was commenced June 22, 2007, but with an attempted backdate to June 21, 2007.

 

LaSalle Bank v. Lamy,

12 Misc.3d 1191(A), 824 N.Y.S.2d 769

“The court thus finds that this purported, undated, indorsement by “allonge” to the note by the original lender in favor of the plaintiff and the December 29, 2005 written assignment of the note and mortgage by MERS to the plaintiff failed to pass ownership of the note and mortgage to the plaintiff prior or subsequent to the commencement of this action. Consequently, the original lender remains the owner of both the note and mortgage since no proper assignment of the either the note or the mortgage was ever made by the original lender/owner to the plaintiff or to the plaintiff’s purported assignee. Under these circumstances, the plaintiff has no cognizable claims for the relief demanded in its complaint.”

LaSalle Bank v. Smalls,

Index No. 28128/2007 (January 3, 2008)

(N.Y. Sup. Ct. Kings Co. 2008)

An order of reference was denied by Judge Kurtz where the bank plead a mortgage assignment executed, September 31, 2007, after the suit was commenced August 31, 2007, but with an attempted backdate to July 30, 2007.

McLean v. JP Morgan Chase Bank, N.A.,

79 So.3d 170 (Fla. 4th DCA 2012)

Trust: Structured Asset Mortgage Investments II, Inc.,

Series 2006-ARS

“Nonetheless, the record evidence is insufficient to demonstrate that Chase had standing to foreclose at the time the lawsuit was filed. The mortgage was assigned to Chase three days after Chase filed the instant foreclosure complaint. More importantly, the original note contained an undated special endorsement in Chase’s favor, and the affidavit filed in support of summary judgment did not state when the endorsement was made to Chase. Furthermore, the affidavit, which was dated after the lawsuit was filed, did not specifically state when Chase became the owner of the note and mortgage, nor did the affidavit indicate that Chase was the owner of the note and mortgage before suit was filed. Therefore, Chase failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed.” (footnotes omitted)

Naranjo v. SBMC Mortgage,

No. 3:11-cv-02229-L-WVG, Dkt. #20

(S.D. Cal. July 24, 2012)

Trust: WMALT 2006-AR4

Mortgage Amount: $825,000

Defendant Trustee’s Motion to Dismiss Denied in Part.

“The vital allegation in this case is the assignment of the loan into
the WAMU Trust was not completed by May 30, 2006 as required by the Trust Agreement. [*10] This allegation gives rise to a plausible inference that the subsequent assignment, substitution, and notice of default and election to sell may also be improper. Defendants wholly fail to address that issue. (See Defs.’ Mot. 3:16-6:2; Defs.’ Reply 2:13-4:4.) This reason alone is sufficient to deny Defendants’ motion with respect to this issue.”

Pino v. Bank of New York,

76 So. 3d 927 (Fla. 4th DCA 2011)

Trust: CWALT 2006-OC8

Mortgage Amount: $162,400

Florida Supreme Court decision pending. The appeal court certified the question to the Florida Supreme Court because “many, many mortgage foreclosures appear tainted with suspect documents.”

“As conveyed by the Fourth District in the decision below, the plaintiffs and now respondents in this Court, the Bank of New York Mellon, et al. (BNY Mellon), commenced an action in the trial court to foreclose a mortgage against the defendant and now petitioner in this Court, Roman Pino. See Pino v. Bank of New York Mellon, 57 So.3d 950, 951 (Fla. 4th DCA 2011). Thereafter, Pino moved for sanctions, alleging that BNY Mellon had filed a fraudulent assignment of mortgage. Id. In response, BNY Mellon filed a notice of voluntary dismissal of the foreclosure action. Id. at 952. Five months later, BNY Mellon refiled an identical action to foreclose the same mortgage. Id. In the original, dismissed action, Pino filed a motion seeking to vacate the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)on the grounds of fraud on the court and requesting dismissal of BNY Mellon’s newly filed action as a consequent sanction. Pino, 57 So.3d at 952. The trial court denied Pino’s motion, essentially holding that because the prior action had been voluntarily dismissed, the court lacked jurisdiction, and thus the authority, to consider any relief. Id.” (footnotes omitted)

Richards v. HSBC Bank,

__So.3d__, 2012 WL 2359656 (Fla. 5th DCA 2012)

Trust: PHH 2007-2

Summary judgment for bank reversed on appeal.

“While the assignment reflected that the mortgage had been assigned from Century 21 to HSBC, the allonge to the note reflected that Bishops Gate Residential Mortgage Trust was to be the note’s payee…

Thus the allonge was inconsistent with the assignment and contradicted the allegation in the complaint that HSBC was the holder of the note…

Furthermore, the affidavits filed by HSBC did not explain the relationship between HSBC and Bishops Gate Residential Mortgage Trust, nor otherwise aver facts conclusively showing that HSBC was the holder of the note.

 

Rigby v. Wells Fargo, N.A.,

__So.3d__, 2012 WL1108428 (Fla. 4th DCA 2012)

Trust: Option One Mortgage Loan Trust 2007-FXD2

Mortgage Amount: $165,600

“The Bank has not shown that it was holder of the note at the time the complaint was filed. The note containing a special endorsement in favor of the bank was not dated. The assignment of mortgage, dated May 22, 2008, indicates that Bank did not acquire the mortgage until the day after the complaint was filed. Finally, neither the affidavit, nor the technical admissions made by the Rigbys, establishes the date on which Bank acquired possession of the note and there is no evidence in the record establishing that an equitable transfer of the mortgage occurred prior to the date the complaint was filed.”

(Summary judgment reversed and remanded.)

 

Servedio v. U.S. Bank, N.A.,

46 So. 3d 1105 (Fla. 4th DCA 2010)

Trust: Terwin Mortgage Trust 2007-AHL1

Mortgage Amount: $252,000

“The issue presented in this appeal is whether the trial court erred in granting a final summary judgment of foreclosure where appellee failed to file with the court a copy of the original note and mortgage prior to the entry of judgment.  Because the absence of the original note created a genuine issue of material fact regarding appellee’s standing to foreclose on the mortgage, summary judgment was not proper. We reverse.”

U.S. Bank v. Alexander,

2012 OK 43

Trust: Credit Suisse First Boston HEAT 2005-4

Mortgage Amount: $63,920

“As previously identified, the dispositive issue is whether or not Appellee had standing at the time Appellee filed their first amended petition. We hold that the issue of standing as well as other material issues of fact remain that must be determined by the trial court. Therefore summary judgment was inappropriate.”

U.S. Bank, N.A. v. Auguste,

Index: 18695-2007 (November 27, 2007)

(N.Y. Sup. Ct. Kings Co. 2007)

Trust: CSMC Mort. Backed PT Certs., Series 2007-1

“In support of plaintiffs application, it submits a purported assignment of the mortgage from Mortgage Electronic Registration Systems, Inc., acting as Nominee for First United, to plaintiff. The purported assignment is dated July 9, 2007, and states in pertinent part “this assignment is effective on or before November 22, 2006.” However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced.”

U.S. Bank, N.A. v. Baber,

280 P.2d 956 (2012 OK 55)

Trust: Security National Mortgage Loan Trust 2006-1

“Being a person entitled to enforce the note is an essential requirement to initiate a foreclosure lawsuit. In the present case, there is a question of fact as to when Appellee became a holder, and thus, a person entitled to enforce the note. Therefore, summary judgment is not appropriate. If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. We reverse the granting of summary judgment by the trial court and remand back for further determinations as to when Appellee acquired its interest in the note.”

U.S. Bank, N.A. v. Collymore,

68 AD3d 752 (2009), 890 NYS2d 578

“Contrary to the Bank’s contentions, it failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not submit sufficient evidence to demonstrate its standing as the lawful holder or assignee of the subject note on the date it commenced this action. The Bank’s evidentiary submissions were insufficient to establish that MERS effectively assigned the subject note to it prior to the commencement of this action…, and the mere assignment of the mortgage without an effective assignment of the underlying note is a nullity…Furthermore, the Bank failed to establish that the note was physically delivered to it prior to the commencement of the action. The affidavit of a vice-president of the Bank submitted in support of summary judgment did not indicate when the note was physically delivered to the Bank, and the version of the note attached to the vice-president’s affidavit contained an undated indorsement in blank by the original lender. Furthermore, the Bank’s reply submissions included a different version of the note and an affidavit from a director of the Residential Funding Corporation which contradicted the affidavit of the Bank’s vice-president in tracing the history of transfers of the mortgage and note to the Bank. In view of the Bank’s incomplete and conflicting evidentiary submissions, an issue of fact remains as to whether it had standing to commence this action.” (cites omitted)

U.S. Bank v. Dellarmo,

94 A.D.3d 746 (2012), 942 N.Y.S.2d 122

Trust: First Franklin Mortgage Loan Trust, 2006-FF2

“However, inasmuch as the complaint does not allege that the note was physically delivered to the plaintiff, and nothing in the plaintiff’s submission in opposition to Dellarmo’s motion could support a finding that such physical delivery occurred, the corrective assignment cannot be given retroactive effect… Moreover, both the unrecorded April 11, 2006, assignment and the recorded corrective assignment indicate only that the mortgage was assigned to the plaintiff. Since an assignment of a mortgage without the underlying debt is a nullity… the plaintiff has failed to demonstrate that it had standing to commence this action…

Accordingly, the Supreme Court should have granted Dellarmo’s motion pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against him for lack of standing.” (cites omitted)

U.S. Bank, N.A. v. Duvall,

Cuyahoga App. No. 94714, 2010-Ohio-6478

Trust: CMLTI 2007-WFHE2

Mortgage Amount: $92,000

“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. Plaintiff’s sole assignment of error is overruled.”

U.S. Bank, N.A. v. Githira,

17 LCR 697 (2009),  MISC 08-386385 (Essex Co. Mass. 2009)

Trust: Home Equity Asset Trust, Series 2005-9

Plaintiff U.S. Bank was seeking to remove a cloud on its title to a parcel of land stemming from plaintiff’s exercise of the power of sale contained in the mortgage before it received authority to do so under the provisions of the Servicemembers’ Civil Relief Act.  The complaint did not mention any other title defects.

Citing Justice Long’s ruling in Ibanez, Justice Charles W. Trombly, Jr., dismissed plaintiff’s petition to remove the cloud on the title, holding that plaintiff was not even the holder of the mortgage, by record or in fact, on the day of the foreclosure sale.  Specifically, the Court found that the foreclosure auction took place and was recorded prior to the execution and recording of an assignment of mortgage that made plaintiff the holder of the mortgage upon which it had foreclosed.

U.S. Bank, N.A. v. Grant,

Index: 11133-2007

(N.Y. Sup. Ct. Kings Co. 2007)

Trust: Asset Backed Securities Corp. Home Equity Loan

Trust, Series OOMC 2006-HE3

“In support of plaintiffs application, it submits a purported assignment of the mortgage from Option One to plaintiff. The purported assignment is dated July 9, 2007, and states in pertinent part “Effective Date: March 28, 2007.” However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced.”

U.S. Bank, N.A. v. Ibanez,

941 N.E. 2d 40, (Mass. 2011)

Trust: Structured Asset Securities Corp. Mortgage PT

Certs., Series 2006-Z

The court in Ibanez rejected application of the “mortgage follows the note” rule, holding that mere possession of properly indorsed negotiable instruments did not give the foreclosing parties authority to conduct a valid non-judicial sale. In other words, one’s status as a party entitled to enforce a note did not satisfy the requirement under state law to be a mortgagee. The court acknowledged that a transferee of a note might have an equitable right to obtain a court order that that the mortgage be transferred to it. However, the potential to assert such a claim did not make the noteholder a “mortgagee.”  The Massachusetts statute required that the foreclosing party have an actual assignment of the mortgage when proceeding to sale., and further held that Assignments in Blank assign nothing and that retroactive assignments are not effective even if it was an industry-wide practice.

U.S. Bank, N.A. v. Madero,

80 AD3d 751, 915 N.Y.S. 2d 612

Trust: not identified

Mortgage Amount: $570,000

“Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not establish that it had standing, as the lawful holder or assignee of the subject note on the date it commenced this action, to commence the action.” (cites omitted)

U.S. Bank, N.A. v. Merino,

16 Misc.3d 209

(N.Y. Sup. Ct. Suffolk Co. 2007)

“First, the assignment from Argent to Ameriquest was executed by Jose Burgos as agent for Argent. On the same date, however, the purported assignment from Ameriquest to the plaintiff was also executed by Mr. Burgos, this time as agent for Ameriquest. In effect, the mortgage was purportedly assigned by Mr. Burgos to Mr. Burgos, and then, in turn, by Mr. Burgos to the plaintiff…The moving papers contain no proof that Mr. Burgos had either entity’s authority to act in a dual agency capacity. Therefore, the court is unable to conclude that the assignments were validly executed, or that the plaintiff had an ownership interest in the subject mortgage at the time of the filing of this action. Since a party has no foundation in law or fact to foreclose upon a mortgage without establishing its legal or equitable interest, the plaintiff’s motion must be denied.”

U.S. Bank, N.A. v. Middlekauff,

Case No. 10 19844, Hillsborough Co. Fla. 2012

Trust: CSFB Mortgage-Backed Trust, Series 2005-9

“First, Plaintiff lacked standing at the inception of this case. Although the Note attached to the Amended Complaint contains an allonge, the undisputed summary judgment evidence before the Court establishes that this allonge was created post-filing. As Plaintiff lacked standing when it filed this lawsuit, dismissal is required.” (cite omitted)

U.S. Bank v. Moore,

2012 OK 32

GSAA Home Equity Trust 2006-6

Mortgage Amount: $282,000

“It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the Note, and to have the proper supporting documentation in hand when filing suit, showing the history of the Note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument…”

U.S. Bank, N.A. v. Roundtree,

Index: 009148/2007

(N.Y. Sup. Ct. Suffolk Co. 2007)

Trust: MASTR Alternative Loan Trust 2006-HE1

“Since MERS, Inc. had no ownership interest in said note, it could not assign it to the plaintiff and any assignment purportedly transferring the ownership interest from Fremont Investment and Loan to the plaintiff by a MERS, Inc. assignment of said note is a nullity.” (cites omitted)

… In view of the foregoing, the instant motion (#001) is denied as it is apparent from the documentary submissions of the plaintiff that it was not the owner of the note at the time of the commencement of this action.”

U.S. Bank, N.A. v. Villaruel,

Index: 25277/2008

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: SG Mort. Sec. AB Certs., Series 2006-FRE2

“The purported assignment is dated August 3, 2007 and states in pertinent part “[t]his assignment is effective as of the 10th day of June, 2007.” However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced. Plaintiff’s attempt to foreclose upon a mortgage in which it had no “legal or equitable interest was without foundation in law or fact…” (cites omitted)

Verizzo v. Bank of New York,

28 So.3d 976 (Fla. 2d DCA 2010)

Trust: Novastar Mortgage Funding Trust, Series 2006-3

“In addition to the procedural error of the late service and filing of the summary judgment evidence, those documents reflect that at least one genuine issue of material fact exists. The promissory note shows that Novastar endorsed the note to “JPMorgan Chase Bank, as Trustee.” Nothing in the record reflects assignment or endorsement of the note by JPMorgan Chase Bank to the Bank of New York or MERS. Thus, there is a genuine issue of material fact as to whether the Bank of New York owns and holds the note and has standing to foreclose the mortgage.”

(Summary judgment reversed and remanded.)

Wells Fargo Bank, N.A. v. Ford,

418 N.J. Super. 592 (App. Div. 2011)

Mortgage Amount: $403,750

“For these reasons, the summary judgment granted to Wells Fargo must be reversed and the case remanded to the trial court because Wells Fargo did not establish its standing to pursue this foreclosure action by competent evidence. On the remand, defendant may conduct appropriate discovery, including taking the deposition of Baxley and the person who purported to assign the mortgage and note to Wells Fargo on behalf of Argent.”

 

Wells Fargo Bank, N.A. v. Hampton,

Index: 25957/2007 (January 3, 2008)

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Option One Mort. Loan Trust 2007-1

“The purported assignment is dated August 1, 2007 and states in pertinent part “[e]ffective as of June 10, 2007.” However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced. Plaintiff’s attempt to foreclose upon a mortgage in which it had no “legal or equitable interest was without foundation in law or fact…” (cites omitted)

Wells Fargo Bank, N.A. v.  Heath,

212 OK 54

Trust: Option One Mortgage Loan Trust 2005-4

Standing was not established by the materials attached to Appellee’s petition or motion for summary judgment because there was no attached indorsed note nor was there an assignment of the note. Therefore, we find the trial court based its decision on an erroneous conclusion of law. There existed a substantial issue of material fact that needed to be addressed at trial. Even though the Appellants did not respond to the motion for summary judgment, the trial court should have denied the motion sua sponte.

 

Wells Fargo Bank v. Larace,

941 N.E. 2d 40, (Mass. 2011)

Trust: ABFC 2005-OPT1

See U.S. Bank v. Ibanez above.  These were consolidated cases.

Wells Fargo Bank v. Lupori,

8 A3d 919 (Pa. Super. Ct. 2010)

Trust: MLMI Trust, Series 2005-FF6

“On appeal, Wells Fargo cites Mallory for the proposition that a plaintiff’s complaint in foreclosure need not allege the existence of a completed and recorded assignment of the subject mortgage to the plaintiff. We conclude, however, that this Court’s opinion in Mallory is distinguishable from the instant matter. In Mallory, the bank alleged that it was the owner of the subject mortgage and also alleged the existence of a pending assignment of the mortgage to the bank. In contrast, Wells Fargo has failed to do either of those things. Since the complaint contains no mention of the alleged assignment from Corporation to Wells Fargo or any allegation that Wells Fargo was the owner of the Luporis’ mortgage,the complaint does not comply with Rule 1147(a)(1). The alleged April 1, 2005 assignment from Corporation to Wells Fargo was dehors the record as of the time of the default judgment. Since the record did not support entry of the default judgment, the trial court erred in declining to strike the judgment from the record.” (footnote omitted)

Wells Fargo Bank, N.A. v. Marchione,

69 AD 3d 204, 887 N.Y.S. 2d 615 (2d Dept 2009)

Trust: Option One Mortgage Loan Trust

“Here, it is clear that the date of the execution of the assignment was after the commencement of the action. If an assignment is in writing, “the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated” (LaSalle Bank Natl. Assn., 59 AD3d at 912). While recognizing that in some circumstances parties to an agreement may bind themselves retroactively, “the fiction of retroactivity . . . should not be applied to affect adversely the rights of third persons” (Debreceni v Outlet Co., 784 F2d 13, 20; see also 2 Lord, Williston on Contracts § 6:61, at 893 [4th ed]). Thus, a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment (see LaSalle Bank Natl. Assn., 59 AD3d 912). We disagree with the contention of Wells Fargo that public policy favors permitting less than strict compliance with the requirement that, in order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the subject mortgage.

Wells Fargo also argues that if the action were to be dismissed, the result would be a waste of judicial resources, as it would simply commence another action as soon as the original action was dismissed. Wells Fargo might have reached this conclusion earlier in its calculus to commence the lawsuit prior to the execution of the assignment.”

Wells Fargo Bank, N.A. v. Mastropaolo,

42 AD3d 239

Trust Amount: $369,000

“Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not establish that it had standing, as the lawful holder or assignee of the subject note on the date it commenced this action, to commence the action…” (cites omitted)

Wells Fargo Bank, N.A. v. McNee

2011 NY Slip Op 33325(U)

Trust: BCAP LLC 2007-AA3

Mortgage Amount: $644,566

Plaintiff’s arguments notwithstanding, this Court is not persuaded by Wells Fargo’s laborious interpretation of the myriad of transfer documents or the breadth of the language employed therein to confer standing upon it. “[L]anguage cannot overcome the requirement that the foreclosing party be both the holder or assignee of the subject mortgage, and the holder or assignee of the underlying note at the time a foreclosure action is commenced…”  In this case, Wells Fargo has adduced no proof in opposition to McNee’s cross motion(s) sufficient to demonstrate that it was either.

Zervas v. Wells Fargo Bank, N.A.,

__So.3d__ (Fla. 2d DCA 2012)

Trust: MLMI Trust Series 2005-FM1

Summary judgment for bank reversed.

“We also note that the mortgage and note attached to the complaint show the lender to be Fremont Investment and Loan. On April 1, 2010, approximately six months after the complaint was filed, Wells Fargo filed a lost note affidavit, which alleged that the note was lost by its attorney sometime after the attorney received it on November 2, 2009. In their motion to dismiss, the Zervases alleged, among other grounds, that Wells Fargo did not have standing to bring the foreclosure complaint because it did not have a written assignment of the loan. Then on July 26, 2010, seven days before the hearing on the motion for summary judgment, Wells Fargo filed the note as a supplemental exhibit to its complaint. The note contains an endorsement in blank, but there is no evidence in the record establishing that the endorsement in blank was made to Wells Fargo prior to the filing of the foreclosure complaint. See Feltus v. U.S. Bank Nat’l Ass’n, 80 So.3d 375, 377 n.2 (Fla. 2d DCA 2012) (holding that bank was required “to prove the endorsement in blank was effectuated before the lawsuit was filed”).”

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