REUTERS | NJ mortgage ruling departs from other U.S. courts


REUTERS | NJ mortgage ruling departs from other U.S. courts

REUTERS | NJ mortgage ruling departs from other U.S. courts

Tue Jan 25, 2011 7:58pm EST

* Lender need not show physical possession of note

* Homeowner challenge Bank of America’s foreclosure right

By Grant McCool

NEW YORK, Jan 25 (Reuters) – A lender need not show physical possession of a note on underlying debt in order to seek foreclosure of a mortgage that has been securitized, a New Jersey court ordered, departing from previous court rulings in the United States.

In the case decided on Jan. 7, Bank of America Corp (BAC.N) sought to foreclose on the home of Janett Alvarado of Bogota, New Jersey, but the note and mortgage for $292,000 had been lost by Washington Mutual Bank [WMPDC.UL] before the loan obligation was transferred to Bank of America.

Courts in the United States have been unwilling to allow banks to enforce their interests without showing that they possessed the physical note.

A Superior Court judge in New Jersey, Mary Thurber, ruled that Bank of America was entitled to enforce Alvarado’s note obligation and was entitled to summary judgment.

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11 Responses to “REUTERS | NJ mortgage ruling departs from other U.S. courts”

  1. WHIP// says:

    JUDGE MARY THURBER is one of those Meddling nit wit Judges that just cant help re-writing New Jersey Laws while defending Banks Pro Bono.

    She is a cancer on Due Process in New Jersey, and should be removed for contempt!

  2. Dave Krieger says:

    When you start enforcing the note and obligation under the UCC and the statutes and not under the chain of title and property law (what’s recorded in the county land records) … of course you’re going to have serious problems. This unfortunately, is what a lot of litigants miss. Securitization arguments fail because the litigant fails to prove agency by contract. This is the problem here.

  3. Virginia says:

    Not seeing the pleading that the homeowner filed it is difficult to 2nd guess the issue; however, if attorneys are pleading the RESPA, TILA issues on old loans they are out of step. The borrower must establish damage in order to overcome the foreclosure. The borrowers, like the investors, were duped. Neither one had control over the appraisal or the underwriting or the credit ratings – and the borrower didn’t even get a Prospectus with the hundreds of pages of risks. The original lender acted as a “broker” and had an obligation to inform the borrower of the risks in securitization. Attorneys should start reading the investor lawsuits to understand the deeper issues, fraud, conspiracy, anti-trust, RICO, breach of fiduciary duty, etc.

    Take some tips from the investor lawsuits – claim everything you can think of because in these lower courts you are probably going to go on appeal.

    And Complaints or Counter-Complaints should (apologize for but) be unconventional. Educate the court in the front about securitization, MERS and the bad acts of whatever bankster is foreclosing. Get it all on the record – because Judges like the one in this case need to be appealed – all the way to the Supreme Court if necessary – and then post his picture all over town when the ruling is overturned and lobby like hell to get him off the bench.

    With that said, this homeowner’s pleading might not have been sufficient – but there was absolutely no reason why a lower court would wipe away due process rights. I’d be asking a Professor at Princeton or George Washington to write an Amicus brief on the due process and original mortgage instruments. Maybe we all should contact our universities and see about getting some papers written and submitted before these courts.

    In any event – hopefully, this homeowner will appeal – and not lose hope. Our firm won $10.1 million on a land-zoning appeal case.

  4. Virginia says:

    Dave is right – attorneys need to research the recordation office and pull the “assignments” and other robo signed documents and add them to the Complaints and answers. Breaks in the chain of title. Quiet Title and fraud are hard to overcome. Get it all on the record and be prepared to go to appeal where the Judges are more astute and have more staff to assist them.

  5. Eugene Villarreal says:

    If you Google -Judge Mary Thurber, N.J.- you’ll see allegations of malpractice and who was endorsed to the judgeship by State Senator Weinberg that Thurber represented in a Special Election for State Senate. The Supreme Court of New Jersey yearly assignments (Sept. 01, 2010 thru Aug. 31, 2011) had Thurber assigned to the Family Div. Foreclosures are in the General Equity Div. This is the problem that has plagued New Jersey and Bergen County foreclosure process.This judge doesn’t know JACK!!! As a homeowner,I don’t know jack also. But I’m not a judge. WHERE’S THE NOTE ??? How could Washington Mutual transfer without possession of the mortgage and note to Bank of America ? How could it be securitized ? Summary Judgment Motion in New Jersey requires that the pretender/lender submit the original mortgage and note. WHERE”S THE NOTE ????????

  6. Colin Davis says:

    Here is the opinion:

    I dont totally disagree with the judge. The homeowner left too many areas for them to wiggle through. Here are some questions that needed to be asked: When exactly was the note lost because if it was lost prior to securitization, it was not securitized legally. The trust was probably a NY trust and NY law forces them to act within the terms of the indentures only. Was the loan located in the AR11 trust? Was there an assignment of the mortgage to the trustee of the AR 11 trust and when was this assignment made? Was it made in accordance with the terms of the trust’s indentures?

  7. 3032oak says:

    In a move that seems to make no sense at all, a New Jersey Judge broke ranks with other recent rulings and allowed a bank without possession of the note to foreclose. WHY? Well, the only logical answer would be that there are rules and then there are rules. Rules that reward the powerful…and rules that punish those without power…

    Many commit the same crimes with a very different result. One bears a cross for his crime; another a crown. Simply put …if I sold someone’s car without them knowing to a person unknown to me and to them and had no legal title to the vehicle before and/or after the sale…and then in the aftermath when the new owners realized they couldn’t register the vehicle would I get to make it right or would I go to jail…Enough said…

  8. david says:

    this nj judge is the enemy of the people of n.j and a total ignorate
    of any one due process,she stand with banksters and their fraud
    against the people shamfull judge shuld be sent home and fast

  9. DAVID says:

    judge mary thurber is no judge she is rubber stamp for banks and their fraud her behaver is shamfull she shuld be removed from court asap.n.j deserve real judges that give due process to poor home owners not a judge like her that side with banks lies

  10. SAM says:



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