HSBC Mortgage Services, Inc., Appellee,
v.
Dannie Edmon, et al., Appellant.

Daniel L. McGookey and Lauren McGookey, for appellant.

DECISION AND JUDGMENT

YARBROUGH, J.

I. Summary

{¶ 1} Appellant, Dannie Edmon, appeals the judgment of the Court of Common Pleas of Erie County which awarded summary judgment pursuant to Civ.R. 56(B) to appellee, HSBC Mortgage Services, Inc. (“HSBC”). For the following reasons, we reverse.

Factual and Procedural Background

{¶ 2} On March 8, 2010, HSBC filed a complaint in foreclosure against Edmon. In its complaint, HSBC alleged that Edmon defaulted on a note initially executed in favor of Accredited Home Lenders, Inc. HSBC further alleged that Edmon defaulted on the mortgage which secured the note, and owed $148,951.44 plus interest at the rate of 5.25 percent per annum from August 1, 2009. Attached to the complaint were copies of the note, the mortgage, and a mortgage assignment. The mortgage assignment was assigned by Mortgage Electronic Registrations Systems Inc., as nominee for Accredited Home Lenders, Inc. to HSBC Mortgage Services, Inc. and was recorded on February 22, 2010.

{¶ 3} On April 9, 2010, Edmon filed an answer. In addition to the answer, Edmon filed a counterclaim, which was eventually dismissed. On November 24, 2010, HSBC filed a motion for summary judgment. Attached to its motion for summary judgment, HSBC submitted the affidavit of one of its employees, Maria Vadney (“Vadney”). In this affidavit, Vadney averred that: (1) she is an employee of HSBC in the capacity of a loan servicing agent, (2) HSBC is the “owner in possession” of the promissory note and mortgage, “true and accurate copies of which were attached to [HSBC’s] Complaint as Exhibits thereto,” (3) HSBC acquired the note on February 1, 2010, prior to the execution of the mortgage assignment, (4) HSBC has exercised the option contained in the “mortgage note,” and (5) Vadney has personal knowledge of Edmon’s account, the account is under her supervision, and Edmon is in default on the note and mortgage and owes $148,951.44, together with interest at the rate of 5.25 percent per year from August 1, 2009. Attached to the Vadney affidavit was a copy of the mortgage assignment indicating that it was recorded with the Erie County Recorder on February 22, 2010. Copies of the note and mortgage, while referenced, were not attached to the affidavit.

{¶ 4} The trial court awarded summary judgment to HSBC in a judgment journalized on May 17, 2011. Much contention between the parties existed on the issue of whether Vadney’s affidavit served to authenticate the promissory note. In so awarding summary judgment to HSBC, the trial court made the following finding:

The original Note is retained at Plaintiff’s office in De Pew [sic], New York [Depo.pp.20-21]. Ms. Vadney requested the original Note from Phil LaGrossa, the manager of the De Pew [sic], New York office, who sent the original Note to Ms. Vadney [Depo. Pp 25-26]. Ms. Vadney then sent the original Note to Plaintiff’s counsel in Ohio. This Court finds it immaterial regarding Ms. Vadney’s not seeing the original Note when she made the affidavit given her testimony on March 11, 2011. She knew the original was in Plaintiff’s custody. She has a file copy in the file she reviewed and the original Note was in the De Pew [sic], New York office where they are retained.

{¶ 5} This appeal followed.

Assignment of Error

{¶ 6} Appellant asserts the following sole assignment of error:

The trial court erred in granting HSBC’s Motion for Summary Judgment and in holding HSBC is the owner and holder of Mr. Edmon’s Note and Mortgage.

II. Analysis

Standard of Review

{¶ 7} When reviewing a trial court’s award of summary judgment, the appellate court conducts a de novo review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment will be granted when there are no genuine issues of material fact, and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978).

{¶ 8} On a motion for summary judgment, the moving party has the burden of demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). The moving party must point to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-293. Pursuant to Civ.R. 56(C), the evidence to be considered is limited to the “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action * * *.” Nevertheless, the trial court may consider a type of document not expressly mentioned in Civ.R. 56(C) if such document is accompanied by a personal certification that it is genuine or is incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E). See Bowmer v. Dettelbach, 109 Ohio App.3d 680, 684, 672 N.E.2d 1081 (6th Dist.1996). The burden then shifts to the nonmoving party to provide evidence showing that a genuine issue of material fact does exist. Dresher at 293; Civ.R. 56(E).

{¶ 9} To properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) The movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the mover is not the original mortgagee, the chain of assignments and transfers; (3) the mortgager is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due. Wachovia Bank v. Jackson, 5th Dist. No. 2010-CA-00291, 2011-Ohio-3202, ¶ 40-45.

{¶ 10} HSBC submits that the Vadney affidavit which referenced the note and mortgage, and the attached mortgage assignment, are sufficient to support its motion for summary judgment. However, after reviewing the record, we find that the trial court erred by awarding summary judgment to HSBC because HSBC was unable to properly authenticate the promissory note, and HSBC failed to demonstrate that it has satisfied any conditions precedent.

The Vadney Affidavit

{¶ 11} In determining the sufficiency of Vadney’s affidavit, we turn to the requirements set forth by Civ.R. 56(E), which states that affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.” (Emphasis added.) The latter requirement is satisfied by a statement in the affidavit declaring that the copies of the documents submitted are true and accurate reproductions of the originals. State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981).

{¶ 12} In his motion in opposition to HSBC’s motion for summary judgment, Edmon argued that Vadney was not competent to testify to or verify the promissory note attached to her affidavit. Edmon does not argue that, on its face, the affidavit is insufficient to establish Vadney’s personal knowledge of the note. Rather, Edmon argues that based upon Vadney’s testimony at a later deposition, Vadney’s affidavit was not based on personal knowledge. We agree.

{¶ 13} In her affidavit, Vadney averred that she has personal knowledge over Edmon’s account and that the promissory note attached to the complaint is a true and accurate copy of the original. Unless controverted by other evidence, a specific averment that an affidavit is made upon personal knowledge of the affiant satisfies the Civ.R. 56(E) requirement that the affiant must be competent to testify to the matters stated. Seminatore at paragraph two of the syllabus. Furthermore, verification of documents attached to an affidavit supporting or opposing a motion for summary judgment, as required by Civ.R. 56(E), is satisfied by an appropriate averment in the affidavit itself, for example, “such copies are true copies and reproductions.” Id. at paragraph three of the syllabus.

{¶ 14} We initially note that neither the promissory note nor the mortgage were attached to Vadney’s affidavit. However, Vadney did attest that the copies of the note and mortgage attached to the complaint were true and accurate copies. The Ninth District has held that Civ.R. 56(E) is satisfied if the “affidavit[ ] state[s] that it was made upon personal knowledge of the affiant and reference[s] * * * documents filed with the complaint.” Charter One Mtge. Corp. v. Keselica, 9th Dist. No. 04CA008426, 2004-Ohio-4333, ¶ 14 (holding that an affidavit complied with Civ.R. 56(E) because it stated that “the affiant is a servicing agent for Charter One, that in such position [affiant] has custody of and is familiar with the account of [mortgager], and that the note and mortgage attached to the complaint are accurate copies of the original instruments”). Huntington Natl. Bank v. Conservatory Assoc. LLC, 9th Dist. No. 10CA0096-M, 2011-Ohio-3249, ¶ 4 (holding that affidavit satisfied Civ.R. 56(E) where affiant “asserted that he has personal knowledge of Huntington’s books and records as they pertain to [mortgager] and that the loan documents attached to Huntington’s complaint are true, accurate, and complete copies of the loan documents at issue”). Therefore, HSBC satisfied its initial burden in Vadney’s affidavit when she averred, “[HSBC] is the owner in possession of the promissory note and mortgage, true and accurate copies of which were attached to the Plaintiff’s Complaint as Exhibits thereto[.]”

{¶ 15} Nevertheless, in his memorandum in opposition to HSBC’s motion for summary judgment, Edmon asserted that Vadney had never physically observed the original promissory note, and instead, when creating her affidavit, Vadney relied upon a scanned document in an online record, which was scanned from HSBC’s New York office. As evidence in support of this assertion, Edmon filed a transcript pursuant to Civ.R. 30(E), from Vadney’s deposition held on March 11, 2011.

{¶ 16} In the deposition Vadney averred, “All our original documents are kept in our Depew office.” When explaining the process of how she requests “original” documents, Vadney explained, “All I know is when I need an original document for one of our attorneys, I will request it, and it gets scanned and over-nighted to me, but at any one time I could pull up a copy of every original document that’s in that customer’s folder off of my system.” Furthermore, in response to a question regarding the handling of notes in HSBC’s Depew office, Vadney replied, “They scan it. They upload them into our system to make sure we have copies of anything that’s received in Depew, New York. All their originals are kept and bar coded under the customer’s account.” From the preceding testimony it would appear that Vadney’s affidavit is corroborated by her depositional testimony. However, even though Vadney averred that as a loan servicing agent for HSBC, she has personal knowledge of Edmon’s account, and that true and accurate copies of the promissory note and mortgage were attached to the complaint, Edmon met his reciprocal burden of demonstrating that a genuine issue of material fact exists by showing that Vadney did not review the original promissory note when swearing that the copy filed with the complaint is a true and accurate copy of the original. In fact, Vadney relied on a copy of the note scanned into HSBC’s database by the manager in the Depew, New York office:

[Edmon’s attorney]: Despite the fact that you signed an affidavit in this case in support of motion for summary judgment, by your own testimony you never laid eyes on the original note until just a month ago, is that right?

[Vadney]: Sir, what I said, I don’t need the original to do my job. Every document, every original, that we have on Mr. Edmon we have uploaded on our system. I have a copy of all the documents. I did not have the original at the time. I have all copies of all the originals that are in his file. (Emphasis added.)

{¶ 17} Furthermore, a review of the entire transcript indicates that Vadney is unfamiliar with the processes of the Depew, New York office where the original promissory note was stored and retrieved. The following testimony reveals Vadney’s lack of familiarity with the Depew office’s processes:

[Vadney]: I’m in foreclosure. I have a different set of processes [than those of the manager at the Depew, New York office]. Mine pertains all to the account. Anything with original documents and how they get it that has nothing to do with me. That — They have a process up in Depew, New York on how they handle — store all their processes. I’m not there. I do not know what their process is.

{¶ 18} In further demonstration that Vadney is unfamiliar with the processes of the New York office, her testimony is as follows:

[Vadney]: The manager at our Depew office is Phil LaGrossa

[Edmon’s attorney]: What is his name?

[Vadney]: LaGrossa

* * *

[Edmon’s attorney]: Okay who gave [the original promissory note] to him: Who retrieved it from the vault?

[Vadney]: Sir, my job is foreclosure. I don’t know what his processes are. I’m not going to answer for what he does there.

[Edmon’s attorney]: Okay. When —

[Vadney]: I can’t answer what he does.

{¶ 19} Vadney was unable to compare her copy of the note to the original when she swore in her affidavit that she did so. Thus, Vadney, having not actually compared the copy to the original document, and being unfamiliar with the processes in HSBC’s New York office, is unable to swear to the note as required by Civ.R. 56(E).

{¶ 20} We note that the Fifth District, in Deutsche Bank Natl. Trust Co. v. Hansen, 5th Dist. No. 2010 CA 00001, 2011-Ohio-1223, ¶ 15, has held that an affidavit in support of summary judgment in a foreclosure case satisfied Civ.R. 56(E) based upon an affiant’s later depositional testimony. In Hansen, the court determined that the affiant’s later depositional testimony was sufficient to demonstrate that, based on the business practices of the affiant’s organization, the affiant had personal knowledge of whether the copy the affiant received was a true and accurate copy. The Hansen court determined that the affiant verified the original with the custodian and could distinguish that the document was a copy from the original by how the copy was marked by the custodian—regardless of the fact that the affiant did not personally see the original promissory note, make the copy, or watch the copy being made.

{¶ 21} In this case, Vadney’s testimony was oftentimes confusing about whether she received an original document, or a copy of an original document. For example, Vadney stated, “All I know is when I need an original document for one of our attorneys, I will request it, and it gets scanned and over-nighted to me, but at any one time I could pull up a copy of every original document that’s in that customer’s folder off my system.” It is unclear whether Vadney receives a “scanned” copy as an “original,” or whether a bar code on the original document is scanned and then the original mailed.

{¶ 22} HSBC argues that Vadney’s testimony is sufficient for the promissory note to be admitted as a business record. However, before application of Evid.R. 803(6), and prior to admission of a business record, the record must also be properly identified or authenticated, “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Evid.R. 901(A). “This low threshold standard does not require conclusive proof of authenticity, but only sufficient foundational evidence for the trier of fact to conclude that the document is what its proponent claims it to be.” (Emphasis sic.) State v. Easter, 75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th Dist.1991), citing 1 Weissenberger, Ohio Evidence (1991) 4-5, Section 901.2; Giannelli, Ohio Evidence Manual (1990) 6, Section 901.01. Therefore, we must initially query whether the promissory note was properly authenticated.

{¶ 23} Evid.R. 901(B)(1) provides that authentication can occur by “[t]estimony of [a] witness with knowledge.” To authenticate the promissory note, HSBC presented the Vadney affidavit, in which Vadney testified that she has “personal knowledge” of Edmon’s account and that the promissory note is a true and accurate copy of the original. However, Edmon has successfully raised an issue of fact regarding whether Vadney was “a witness with knowledge” and whether the documents are true and accurate copies. In her deposition, Vadney testified that she did not know who scanned the note into her computer system, nor did she know how such information was collected and compiled. In order to properly authenticate business records, a witness must “testify as to the regularity and reliability of the business activity involved in the creation of the record.” State v. Hirtzinger, 124 Ohio App.3d 40, 49, 705 N.E.2d 395 (2d Dist.1997). Because Vadney was unfamiliar with the processes performed by the Depew office, we conclude that the court erred in admitting the promissory note as evidence for consideration in HSBC’s motion for summary judgment.

{¶ 24} Accordingly, there remains a genuine issue of material fact as to the authenticity of the promissory note filed with HSBC’s motion for summary judgment.

HSBC Unable to Prove Status as Note Holder

{¶ 25} HSBC was required to prove that it is the current holder of the note and mortgage in order to establish itself as the real party in interest. See Deutsche Bank Natl. Trust Co. v. Greene, 6th Dist. No. E-10-006, 2011-Ohio-1976, ¶ 13. The failure to prove itself as the real party in interest creates a genuine issue of material fact that precludes summary judgment. First Union Natl. Bank v. Hufford, 146 Ohio App.3d 673, 679-680, 767 N.E.2d 1206 (3d Dist.2001).

{¶ 26} Ohio’s version of the Uniform Commercial Code governs who may enforce a note. R.C. 1301.01 et seq. Article 3 of the UCC governs the creation, transfer and enforceability of negotiable instruments, including promissory notes secured by mortgages on real estate. Fed. Land Bank of Louisville v. Taggart, 31 Ohio St.3d 8, 10, 508 N.E.2d 152 (1987).^[1] An allonge is attached to the note with the following blank endorsement,^[2] “PAY TO THE ORDER OF: ____ WITHOUT RECOURSE //s JS Rohrschieb, Assistant Secretary, Accredited Home Lenders, Inc., A California Corporation.” Because the note is payable to bearer, negotiation of the note would be accomplished by transfer of possession alone. R.C. 1303.21(B). HSBC claims that it is holder in possession of bearer paper.^[3] However, because the note was not properly authenticated, its contents are excluded. Accordingly, HSBC cannot establish that it is the note holder.

HSBC is the Mortgage Holder

{¶ 27} Furthermore, after reviewing the submitted evidence, we find that the mortgage assignment attached to the affidavit constitutes proper evidentiary material to demonstrate HSBC’s status as the mortgage holder.^[4] Vadney’s affidavit states that HSBC “purchased, acquired and/or otherwise obtained possession of the note and mortgage before February 1, 2010, and prior to the execution of the Assignment of Mortgage evidencing the transfer of record.” Because the mortgage assignment is a notarized document, extrinsic evidence of its authenticity is not required pursuant to Evid.R. 902(8).^[5] The mortgage assignment indicates that HSBC is the current assignee, and that it was recorded in the office of the Erie County Recorder on February 22, 2010. Thus, HSBC sufficiently established its status as the mortgage holder.

{¶ 28} Edmon argues that the mortgage assignment is fraudulent because it was executed by an individual named Shelene Strauss (“Strauss”), a purported employee of HSBC. Edmon argues that Strauss does not have the capacity to sign the assignment. Specifically, Edmon argues that “* * * Ms. Strauss is a known employee of [HSBC], yet signed on behalf of MERS to [HSBC], [therefore] a serious question exists as to whether Strauss had the legal capacity to sign this Assignment.”

{¶ 29} In support of his position, Edmon’s attorney submitted an affidavit with an attached Facebook account screenshot, which he alleges belongs to Strauss. This purported Facebook account indicates that Strauss’s employer is HSBC.

{¶ 30} However, the Facebook screenshot is not admissible because there is no testimony that Edmon’s attorney has personal knowledge of Strauss’s Facebook account. Evid.R. 803(6); see also Hirtzinger, 124 Ohio App.3d at 49, 705 N.E.2d 395. Accordingly, this screen snapshot of Strauss’s purported Facebook account is not proper evidentiary material for consideration in Edmon’s motion in opposition to HSBC’s motion for summary judgment.

{¶ 31} HSBC alternatively argues that it is entitled to enforce the promissory note by virtue of its status as the mortgage holder. In support of its position, HSBC cites our previous decision in Greene, 6th Dist. No. E-10-006, 2011-Ohio-1976. Because the facts of this case are dissimilar to those in Greene, we cannot conclude that as a mortgage holder, HSBC is entitled to enforce the promissory note. In Greene, we held that “the assignment of the mortgage, in conjunction with interlocking references in the mortgage and note, transferred the note as well.” (Emphasis added.) Id. at ¶ 15. In Greene, both the mortgage and note were properly before the court as evidence for consideration of Deutsche Bank’s motion for summary judgment. As previously discussed, in this case, the promissory note has not been properly authenticated, and we cannot rely on the references to the mortgage within the promissory note to conclude that an equitable assignment of the note occurred.

The Loan Account

{¶ 32} Vadney also swears that Edmon’s account is in default, and Edmon owes a principal balance of $148,951.44 with interest at the rate of 5.25 percent per annum from August 1, 2009. Vadney states that she is an employee of HSBC in the capacity of a loan servicing agent, has “examined and has personal knowledge” of Edmon’s account, and the account is under her supervision. Edmon has not presented any evidence to create a genuine issue that his account is in default or that a different amount is due. Thus, we find that Vadney has affirmatively shown, pursuant to Civ.R. 56(E), that she is competent to testify to Edmon’s account.

Conditions Precedent

{¶ 33} We find that HSBC has not met its initial burden to establish that any conditions precedent have been satisfied. Civ.R. 9(C) provides, “In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”

{¶ 34} Paragraph 22 of the mortgage provides in pertinent part as follows:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument * * * The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by Judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, costs of title evidence.

{¶ 35} Accordingly, prior to accelerating the balance due on a promissory note and filing an action to foreclose a mortgage, HSBC was required to give Edmon notice of his default and an opportunity to cure the default. Paragraph 15 of mortgage, which is titled “Notices,” additionally provides,

All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means. * * * The notice address shall be the Property Address unless Borrower has designated a substitute notice address by notice to Lender. * * * There may be only one designated notice address under this Security Instrument at any one time.

{¶ 36} In its complaint, HSBC pleaded “that the conditions precedent [in the mortgage] have been satisfied * * *.” Edmon generally denied this allegation. Thus, it would appear that because Edmon failed to deny the performance or occurrence of any conditions precedent specifically and with particularity, the effect would be that they are deemed admitted. However, we need not address whether Edmon admitted this allegation because “a party seeking summary judgment always bears the initial responsibility of informing the [trial] court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Dresher, 75 Ohio St.3d at 288, 662 N.E.2d 264, quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

{¶ 37} With respect to the record before the trial court, HSBC pointed only to Vadney’s affidavit in support of its motion for summary judgment and not to any purported admissions in Edmon’s answer. In her affidavit, Vadney did not address the issue of whether HSBC satisfied the conditions precedent in Edmon’s mortgage. Therefore, HSBC failed to meet its initial Dresher burden of pointing to portions of the record that show the absence of a genuine issue of material fact that the conditions precedent have been satisfied. See Dresher at 292-293, 662 N.E.2d 264.

Equitable Considerations

{¶ 38} Finally, Edmon asserts an argument that equitable considerations preclude judgment in HSBC’s favor. However, appellants did not raise these arguments in the trial court and has waived them for purposes of appeal. It is a fundamental rule of appellate procedure that a reviewing court will not consider as error any issue that a party failed to bring to the trial court’s attention. Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982); Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975).

{¶ 39} Because the promissory note is not admissible as evidence, HSBC has not established itself as a real party in interest entitled to enforce the promissory note and foreclose on Edmon’s property. Furthermore, HSBC did not point to evidence sufficient to demonstrate satisfaction of conditions precedent. Thus, the trial court erred in awarding summary judgment to HSBC. Accordingly, Edmon’s assignment of error is well-taken.

III. Conclusion

{¶ 40} Wherefore, we find that substantial justice was not done. The judgment of the trial court granting HSBC’s motion for summary judgment is reversed and the case is remanded for proceedings consistent with this decision.

{¶ 41} HSBC shall pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, P.J., Thomas J. Osowik, J. and Stephen A. Yarbrough, J., Concur.

[1] R.C. 1301.01 was repealed by Am.H.B. No. 9, 2011 Ohio Laws File 9, effective June 29, 2011. That act amended the provisions of R.C. 1301.01 and renumbered that section so that it now appears at R.C. 1301.201. Because R.C. 1301.201 only applies to transactions entered on or after June 29, 2011, we apply R.C. 1301.01 to this appeal.

[2] R.C. 1303.25(B) states: “`Blank indorsement’ means an instrument that is made by the holder of the instrument and that is not a special indorsement. When an instrument is indorsed in blank, the instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.”

[3] Under R.C. 1301.01, “holder” means either of the following: “(a) if the instrument is payable to bearer, a person who is in possession of the instrument; “(b) if the instrument is payable to an identified person, the identified person when in possession of the instrument.” (Emphasis added.)

[4] “`Holder of the mortgage’ means the holder of the mortgage as disclosed by the records of the recorder or recorders of the county or counties in which the mortgaged premises are situated.” R.C. 5301.232(E)(3).

[5] Pursuant to Evid.R. 902(8), “[d]ocuments accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments” do not require “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility * * *.”

FL Realtors-

CoreLogic released its National Foreclosure Report for September with data on completed U.S. foreclosures and the overall foreclosure inventory.

According to the report, Florida had 91,898 completed foreclosures over the 12 months ending in August, or 11.8 percent of the U.S.’s 781,898 foreclosures.

Florida’s foreclosure inventory – the total number of homes in some stage of the foreclosure process compared to all homes with a mortgage – topped the nation at 11 percent. The national average was 3.2 percent. Florida’s foreclosure inventory fell more than the national average, however, down 1.1 percent for the year. Nationally, the rate dropped only 0.2 percent.

The five states with the highest foreclosure inventory as a percentage of all mortgaged homes after Florida were: New Jersey (7.3 percent), New York (5.3 percent), Illinois (5.2 percent) and Nevada (4.9 percent).

[FLORIDA REALTORS]

Business Week-

Florida’s insurance consumer advocate is seeking a state investigation of, and potentially action against, companies that cancel homeowner policies and deny claims based on credit information.

Robin Smith Westcott called it “an abusive practice” and “a troubling new trend” in a letter to Florida Insurance Commissioner Kevin McCarty.

“This activity threatens not only homeowners’ financial stability but also the state’s economic recovery,” Westcott wrote.

[BUSINESS WEEK]

Kaptur/Warren 2016

Press Publication-

While speaking at Maumee Bay State Park, U.S. Representative Marcy Kaptur was asked what she thinks of the 2012 presidential campaign.

Kaptur turned the question around, asking the guests if they were satisfied with the way both Democratic President Barack Obama and Republican candidate Mitt Romney were running their campaigns.

She admitted she was not, suggesting that the amount of money both candidates have spent could have been better served if donated to food banks.

“They are almost like performers, and I don’t think it contributes to the dialogue like we are having right here. It is dissatisfying to the American people and they are spending all this money,” Kaptur said. “Ohioans should have questions answered about Ohio, rather than listening to all these canned speeches both sides give.

[PRESS PUBLICATION]

###

HUD SECRETARY ANNOUNCES FORECLOSURE PROTECTION
FOR CONNECTICUT STORM VICTIMS

WASHINGTON – U.S. Housing and Urban Development Secretary Shaun Donovan today announced HUD will speed federal disaster assistance to the State of Connecticut and provide support to homeowners and low-income renters forced from their homes due to Hurricane Sandy.

Yesterday, President Obama issued a disaster declaration for Fairfield, Middlesex, New Haven and New London Counties. The declaration also includes Mashantucket Pequot Indian Reservation. The President’s declaration allows HUD to offer foreclosure relief and other assistance to certain families living in these counties.

“Families who may have been forced from their homes need to know that help is available to begin the rebuilding process,” said Donovan. “Whether it’s foreclosure relief for families with FHA-insured loans or helping these counties to recover, HUD stands ready to help in any way we can.”

HUD is:

• Offering the State of Connecticut and other entitlement communities the ability to re-allocate existing federal resources toward disaster relief– HUD’s Community Development Block Grant (CDBG) and HOME programs give the State and communities the flexibility to redirect millions of dollars to address critical needs, including housing and services for disaster victims. HUD is currently contacting State and local officials to explore streamlining the Department’s CDBG and HOME programs in order to expedite the repair and replacement of damaged housing;

• Granting immediate foreclosure relief– HUD granted a 90-day moratorium on foreclosures and forbearance on foreclosures of Federal Housing Administration (FHA)-insured home mortgages;

• Making mortgage insurance available– HUD’s Section 203(h) program provides FHA insurance to disaster victims who have lost their homes and are facing the daunting task of rebuilding or buying another home. Borrowers from participating FHA-approved lenders are eligible for 100 percent financing

• Making insurance available for both mortgages and home rehabilitation– HUD’s Section 203(k) loan program enables those who have lost their homes to finance the purchase or refinance of a house along with its repair through a single mortgage. It also allows homeowners who have damaged houses to finance the rehabilitation of their existing single-family home; and

• Offering Section 108 loan guarantee assistance– HUD will offer state and local governments federally guaranteed loans for housing rehabilitation, economic development and repair of public infrastructure. 

• Information on housing providers and HUD programs -The Department will share information with FEMA and the State on housing providers that may have available units in the impacted counties.  This includes Public Housing Agencies and Multi-Family owners.  The Department will also connect FEMA and the State to subject matter experts to provide information on HUD programs and providers.

          Read about these and other HUD programs designed to assist disaster victims.

###

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all.
HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the
need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build
inclusive and sustainable communities free from discrimination; and transform the way HUD does business.
More information about HUD and its programs is available on the Internet at www.hud.gov and
http://espanol.hud.gov. You can also follow HUD on twitter @HUDnews, on facebook at
www.facebook.com/HUD, or sign up for news alerts on HUD’s News Listserv.

HUD SECRETARY ANNOUNCES FORECLOSURE PROTECTION
FOR NEW JERSEY STORM VICTIMS

WASHINGTON – U.S. Housing and Urban Development Secretary Shaun Donovan today announced HUD will speed federal disaster assistance to the State of New Jersey and provide support to homeowners and low-income renters forced from their homes due to Hurricane Sandy.

Today, President Obama issued a disaster declaration for Atlantic, Cape May, Essex, Hudson, Middlesex, Monmouth, Ocean and Union Counties. The President’s declaration allows HUD to offer foreclosure relief and other assistance to certain families living in these counties.

“Families who may have been forced from their homes need to know that help is available to begin the rebuilding process,” said Donovan. “Whether it’s foreclosure relief for families with FHA-insured loans or helping these counties to recover, HUD stands ready to help in any way we can.”

HUD is:

• Offering the State of New Jersey and other entitlement communities the ability to re-allocate existing federal resources toward disaster relief – HUD’s Community Development Block Grant (CDBG) and HOME programs give the State and communities the flexibility to redirect millions of dollars to address critical needs, including housing and services for disaster victims. HUD is currently contacting State and local officials to explore opportunities to use the Department’s CDBG and HOME programs in order to expedite the repair and replacement of damaged housing;
• Granting immediate foreclosure relief – HUD granted a 90-day moratorium on foreclosures and forbearance on foreclosures of Federal Housing Administration (FHA)-insured home mortgages;
• Making mortgage insurance available – HUD’s Section 203(h) program provides FHA insurance to disaster victims who have lost their homes and are facing the daunting task of rebuilding or buying another home. Borrowers from participating FHA-approved lenders are eligible for 100 percent financing, including closing costs;
• Making insurance available for both mortgages and home rehabilitation – HUD’s Section 203(k) loan program enables those who have lost their homes to finance the purchase or refinance of a house along with its repair through a single mortgage. It also allows homeowners who have damaged houses to finance the rehabilitation of their existing single-family home; and
• Offering Section 108 loan guarantee assistance – HUD will offer state and local governments federally guaranteed loans for housing rehabilitation, economic development and repair of public infrastructure.
• Information on housing providers and HUD programs -The Department will share information with FEMA and the State on housing providers that may have available units in the impacted counties.  This includes Public Housing Agencies and Multi-Family owners. The Department will also connect FEMA and the State to subject matter experts to provide information on HUD programs and providers.

Read about these and other HUD programs designed to assist disaster victims.

###

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all.
HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the
need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build
inclusive and sustainable communities free from discrimination; and transform the way HUD does business.
More information about HUD and its programs is available on the Internet at www.hud.gov and
http://espanol.hud.gov. You can also follow HUD on twitter @HUDnews, on facebook at
www.facebook.com/HUD, or sign up for news alerts on HUD’s News Listserv.

HUD SECRETARY ANNOUNCES FORECLOSURE PROTECTION
FOR NEW YORK STORM VICTIMS

WASHINGTON – U.S. Housing and Urban Development Secretary Shaun Donovan today announced HUD will speed federal disaster assistance to the State of New York and provide support to homeowners and low-income renters forced from their homes due to Hurricane Sandy.

Today, President Obama issued a disaster declaration for Bronx, Kings, Nassau, New York, Richmond, Suffolk, and Queens counties. The President’s declaration allows HUD to offer foreclosure relief and other assistance to certain families living in these counties.

“Families who may have been forced from their homes need to know that help is available to begin the rebuilding process,” said Donovan. “Whether it’s foreclosure relief for families with FHA-insured loans or helping these counties to recover, HUD stands ready to help in any way we can.”

HUD is:

• Offering the State of New York and other entitlement communities the ability to re-allocate existing federal resources toward disaster relief – HUD’s Community Development Block Grant (CDBG) and HOME programs give the State and communities the flexibility to redirect millions of dollars to address critical needs, including housing and services for disaster victims. HUD is currently contacting State and local officials to explore opportunities to use the Department’s CDBG and HOME programs in order to expedite the repair and replacement of damaged housing;
• Granting immediate foreclosure relief – HUD granted a 90-day moratorium on foreclosures and forbearance on foreclosures of Federal Housing Administration (FHA)-insured home mortgages;
• Making mortgage insurance available – HUD’s Section 203(h) program provides FHA insurance to disaster victims who have lost their homes and are facing the daunting task of rebuilding or buying another home. Borrowers from participating FHA-approved lenders are eligible for 100 percent financing, including closing costs;
• Making insurance available for both mortgages and home rehabilitation – HUD’s Section 203(k) loan program enables those who have lost their homes to finance the purchase or refinance of a house along with its repair through a single mortgage. It also allows homeowners who have damaged houses to finance the rehabilitation of their existing single-family home; and
• Offering Section 108 loan guarantee assistance – HUD will offer state and local governments federally guaranteed loans for housing rehabilitation, economic development and repair of public infrastructure.
• Information on housing providers and HUD programs -The Department will share information with FEMA and the State on housing providers that may have available units in the impacted counties.  This includes Public Housing Agencies and Multi-Family owners. The Department will also connect FEMA and the State to subject matter experts to provide information on HUD programs and providers.

Read about these and other HUD programs designed to assist disaster victims.

###

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all.
HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the
need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build
inclusive and sustainable communities free from discrimination; and transform the way HUD does business.
More information about HUD and its programs is available on the Internet at www.hud.gov and
http://espanol.hud.gov. You can also follow HUD on twitter @HUDnews, on facebook at
www.facebook.com/HUD, or sign up for news alerts on HUD’s News Listserv.

###

Just breaking and more as soon as it is released. If other lenders follow info will be posted as the news comes in.

.

Business Week-

Fannie Mae and Freddie Mac, the home mortgage-finance companies now under government control, were accused by Miami-Dade County, Florida, of failing to pay transfer taxes when they took ownership and sold thousands of foreclosed properties.

Harvey Ruvin, clerk of the courts for Miami-Dade County, sued the mortgage finance companies in federal court in Miami Oct. 29 alleging Fannie Mae (FNMA) and Freddie Mac improperly claimed they’re exempt from paying the tax, which amounts to 60 cents per $100 of the value of single-family residences.

[BUSINESS WEEK]

Huge victory for Attorney Andrew M. Engel [link]

The Supreme Court of Ohio

Federal Home Loan Mortgage Corp

v.

Duane Schwartzwald et al.

EXCERPT:

{¶ 1} Duane and Julie Schwartzwald appeal from a judgment of the
Second District Court of Appeals affirming a decree of foreclosure entered in
favor of the Federal Home Loan Mortgage Corporation. In addition, the appellate
court certified that its decision in this case conflicts with decisions of the First and
Eighth Districts on the following issue: “In a mortgage foreclosure action, the
lack of standing or a real party in interest defect can be cured by the assignment of
the mortgage prior to judgment.”

{¶ 2} Federal Home Loan commenced this foreclosure action before it
obtained an assignment of the promissory note and mortgage securing the
Schwartzwalds’ loan. The Schwartzwalds maintained that Federal Home Loan
lacked standing to sue. The trial court granted summary judgment in favor of
Federal Home Loan and entered a decree of foreclosure. The appellate court
affirmed, holding that Federal Home Loan had remedied its lack of standing when
it obtained an assignment from the real party in interest.

{¶ 3} However, standing is required to invoke the jurisdiction of the
common pleas court, and therefore it is determined as of the filing of the
complaint. Thus, receiving an assignment of a promissory note and mortgage
from the real party in interest subsequent to the filing of an action but prior to the
entry of judgment does not cure a lack of standing to file a foreclosure action.

{¶ 4} Accordingly, the judgment of the court of appeals is reversed, and
the cause is dismissed.

[…]

[ipaper docId=111677891 access_key=key-1m1jylfr5fthta8u4zov height=600 width=600 /]

Stacy L. Hart, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

BELFANCE, Judge.

{¶1} Nancy Easterling appeals the trial court’s award of summary judgment to PHH Mortgage Corporation. For reasons set forth below, we reverse and remand for further proceedings.

I.

{¶2} Ms. Easterling signed a variable-rate note and executed a mortgage on her home as collateral in 2002. Given the variable rate of the loan, the note required the note holder to “deliver or mail to [Ms. Easterling] a notice of any changes in [her] interest rate and the amount of [her] monthly payment before the effective date of any change.” In November 2009, Ms. Easterling and PHH, which held her note, entered into an agreement that would allow Ms. Easterling, who had recently lost her job, to reduce the monthly payments on a promissory note held by PHH from $445.56 to $372.02. She continued to make this reduced monthly payment and her payments were accepted by the bank. In July 2010, PHH notified Ms. Easterling that her application for a permanent loan modification had been denied. Ms. Easterling continued paying the reduced monthly payment until PHH sent her a letter in September 2010 in which it claimed that Ms. Easterling was in default on the promissory note as of May 2010 and demanded $2,246.75 to be paid within 30 days or else it would institute foreclosure proceedings against her.

{¶3} When Ms. Easterling contacted PHH, its representative was unable to provide any information concerning the $2,246.75 but told Ms. Easterling that her monthly payment was now $449.35. PHH’s representative told Ms. Easterling to pay the new monthly amount. Ms. Easterling tendered two checks for $449.35, but PHH returned them, claiming that they did not satisfy the default amount. It then filed a complaint seeking a judgment for the amount outstanding on the loan as well as to foreclose on Ms. Easterling’s home.

{¶4} PHH moved for summary judgment, and Ms. Easterling filed a motion in opposition. The trial court awarded PHH summary judgment, determining that there was no genuine issue of material fact that Ms. Easterling had defaulted on her promissory note. Ms. Easterling has appealed, raising four assignments of error for our review. For ease of discussion, we have combined her first two assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S MOTION FOR SUMMARY JUDGMENT WHERE THE APPELLEE FAILED TO MEET [ITS] BURDEN TO SPECIFICALLY DEMONSTRATE THE ABSENCE OF A GENUINE ISSUE OF MATERIAL FACT AND APPELLANT PROPERLY DEMONSTRATED THE EXISTENCE OF A GENUINE ISSUE OF MATERIAL FACT CONCERNING APPELLANT’S DEFAULT.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT ESTABLISHED THAT APPELLANT WAS IN DEFAULT ON HER MORTGAGE NOTE.

{¶5} Ms. Easterling argues that summary judgment was improper because PHH failed to demonstrate that there was no genuine issue of material fact that she was in default. We agree.

{¶6} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. No. 25427, 2011-Ohio-1519, ¶ 8.

{¶7} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary judgment motion, the movant bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “`must set forth specific facts showing that there is a genuine issue for trial.'” Id. at 293, quoting Civ.R. 56(E).

{¶8} “The prerequisites for a party seeking to foreclose a mortgage are execution and delivery of the note and mortgage; valid recording of the mortgage; default; and establishing an amount due.” (Internal quotations and citations omitted.) CitiMortgage, Inc. v. Firestone, 9th Dist. No. 25959, 2012-Ohio-2044, ¶ 11.

{¶9} In support of its motion for summary judgment, PHH submitted the promissory note, the mortgage on Ms. Easterling’s home, and the affidavit of Mychal Farmer. In his affidavit, Mr. Farmer averred that “[a]ccording to PHH[`s] business records, payments have not been made as required under the terms of the Note and Mortgage; the default on the Loan has not been cured; and Plaintiff or its agent has accelerated the account, pursuant to the terms of the Loan, making the entire balance due.”

{¶10} However, Ms. Easterling disputes that she was ever in default on the loan. According to Ms. Easterling’s affidavit, she has “never missed a payment.” Similarly, she averred that she was current with her mortgage through November 2009, that she was informed that her monthly payments would be reduced to $372.02 through August 2010, and that she did not miss those payments. She also averred that, following her receipt of a letter in July 2010 informing her that she had been denied a permanent loan modification, PHH never informed her what her monthly payment would be and, thus, she continued paying $372.02 a month. When viewed in the light most favorable to Ms. Easterling, her affidavit creates a genuine issue of material fact as to whether she was in default on the loan.

{¶11} PHH argues that Ms. Easterling’s tendered payments of $372.02 after receiving the July 2010 letter constituted default. According to PHH, notwithstanding the fact that it never notified Ms. Easterling in writing that her monthly payments had increased to $449.35, she should have paid the increased rate because she “had seemingly never had a problem determining how much she owed per month before * * *.” However, PHH’s argument ignores the terms of the note that it was required to “deliver or mail to [Ms. Easterling] a notice of any changes in [her] interest rate and the amount of [her] monthly payment before the effective date of any change.” PHH has put forth no evidence that it delivered or mailed a notice to Ms. Easterling that informed her that her payment increased from $372.02 a month to $449.35. Viewing the evidence in the light most favorable to Ms. Easterling, absent notification required by the loan informing her of a different monthly payment amount, her continued payment of $372.02 a month did not constitute a default.

{¶12} PHH also argues that it was entitled to summary judgment because all of Ms. Easterling’s reduced payments from December 2009 to August 2010 constituted a default. However, the cases cited by PHH present factual scenarios in which the mortgagor was already in default prior to the loan modification or are otherwise factually and procedurally distinguishable. Unlike those cases, Ms. Easterling did not default on her note prior to the loan modification. Furthermore, PHH does not dispute that the parties had agreed to a temporary modification of Ms. Easterling’s loan. Although the terms of the modification are unclear based on the record, PHH does not dispute that pursuant to the temporary modification, Ms. Easterling was to pay $372.02 per month and the bank accepted payment in that amount for many months.

{¶13} Ms. Easterling’s first and second assignments of error are sustained.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT ESTABLISHED AND APPELLEE WAS ENTITLED TO ACCELERATE THE MORTGAGE ACCOUNT PURSUANT TO THE TERMS OF THE AGREEMENT AND THE FACTS PRESENTED.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED BY NOT CONSIDERING EQUITABLE FACTORS RELEVANT TO PRECLUDE THE RELIEF OF FORECLOSURE IN THIS MATTER AND/OR FINDING THEM TO BE IN FAVOR OF THE APPELLEE.

{¶14} Given our resolution of Ms. Easterling’s first two assignments of error, her remaining assignments of error are moot, and, therefore, we decline to address them. See App.R. 12(A)(1)(c).

III.

{¶15} Ms. Easterling’s first and second assignments of error are sustained, and her third and fourth assignments of error are moot. The judgment of the Summit County Court of Common Pleas is reversed, and the matter is remanded for further proceedings consistent with this decision.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

CARR, P. J. and DICKINSON, J., Concur.

OC Register-

Aimee Larson of Irvine is in danger of losing her condo. But she says she hasn’t missed a payment and her finances are stable.

Her problem? She started renting out the property.

You see, Larson’s lender is the California Housing Finance Agency, an entity in state government with strict owner-occupancy rules. Last year, CalHFA was blasted by the California Senate Office of Oversight and Outcomes for foreclosing on homeowners who no longer live in their homes, even when they were current on their mortgage payments.

At the time, CalHFA said it had to foreclose on the homes because its mortgages are underwritten by tax-exempt bonds and Internal Revenue Service rules precludes borrowers under those circumstances to use their properties as investments or rentals. A Senate investigator, however, found that other states aren’t nearly as strict. His report concluded that CalHFA’s policy was gratuitous.

[OC REGISTER]

WFTV-

Some Ocala residents are taking on a cable company they say is forcing them to pay for services they don’t use.

The homeowners of the Palm Cay community said Cablevision has threatened them with liens and foreclosure.

Some homeowners said they are still charged by Cablevision, even though they use a satellite TV company.

The cable company said it doesn’t matter.

One homeowner’s cable bill, which he said he hasn’t paid in years, went up to $1,200 – and ended up in court Wednesday.

[WFTV]

Anyone that is willing to team up with Essex County John O’Brien and take on MERS has my vote!

Mass Live-

“I believe I’m well qualified for it,” he said. He’s a lawyer, experienced in finance and has an extensive background in real estate. “I love real estate and everything associated with it,” he said.

[…]

He said he wants to call attention to The Mortgage Electronic Registration System, or MERS, which is owned by banks and mortgage finance companies. Filings through that company instead of the register shortchange the county, he said. “It’s the tip of the iceberg,” he said referring to the Wall Street mortgage crisis.

[MASS LIVE]

image: http://www.zimmermanfordeeds.org

Robo-signing, MERS, E-Sign mentioned at 3:50

Yup…the economy sure is getting better.

When we have these many homeless students, there is a much bigger problem with those in Washington.

SFGATE-

Tennessee saw the number of homeless public school students increase by 74 percent between 2007 and 2010.

That number was well above the national average of 38 percent, but the true number may be even higher.

According to a report from the state Comptroller’s office, several neighboring states have a larger percentage of homeless students. That could be a clue that Tennessee’s numbers are an undercount.

[SF GATE]

image: www6.indep.k12.mo.us

VIA Occupy Our Homes-

To: Wells Fargo CEO John Stumpf and US Bank CEO Richard Davis

Honor Breast Cancer Awareness Month (October) by stopping the foreclosure evictions of Ms. Wilson and Ms. Barber and ending ALL sickness evictions

Why is this important?

Get sick, lose your home.

Honor Breast Cancer Awareness Month (October) by stopping the foreclosure evictions of Ms. Wilson and Ms. Barber and ending ALL sickness evictions

Why is this important?

Get sick, lose your home.

That’s what’s happening to Ana Casas Wilson and Jacqueline Barber, both cancer victims, both facing foreclosure evictions during National Breast Cancer Awareness Month.

Ana Casas Wilson has lived in the same home near Los Angeles for 40 years. In 2009, she was diagnosed with breast cancer, and her husband had to take some time off to care for her. Their income quickly rebounded, but they missed some mortgage payments. They tried to get back on track and work with the bank on modifications. Ana was born with cerebral palsy, and has been a passionate and effective advocate for the disabled

Wells Fargo foreclosed on her anyway, refusing to accept her payments.

Jacqueline Barber spent 20 years on the Atlanta police force, only retiring when injured by a car in the line of duty. In 2009, the predatory loan on her house caused her payment to go up $1500, and she fought to stay current. Then she was diagnosed with bone marrow cancer and had to undergo aggressive treatment to save her life. She fought back against the disease, and spent months filling out forms and asking for modifications to her mortgage. A Wells Fargo Executive Vice President assured he they were working
on her case.

Instead, they sold her loan to US Bank at foreclosure auction, and now she’s fighting imminent eviction. The banks are refusing even to sell the home to friends and family who have banded together to help Jacqueline.

Your help is critical. We all know that increased stress makes it harder for the body to fight back against serious illness. There is little in life that is more stressful than being evicted. It is not a stretch to say that by pursuing these foreclosure evictions US Bank and Wells Fargo are literally helping shorten the lives of Ana and Jacqueline.

The Home Defenders League has found people struggling with illness, medical debt, underwater mortgages and foreclosures in town after town across America. Get sick. Lose your home. Saving the homes of Ana and Jacqueline is just the tip of the iceberg. We need to say no more illness foreclosures and end all sickness evictions.

How it will be delivered

We’re taking petitions directly to US Bank and Wells Fargo HQ’s telling their CEO’s to End Sickness Evictions and say No More Illness Foreclosures. Sign now to add your voice!

HuffPO-

Fannie Mae and Freddie Mac on Tuesday extended their disaster-relief policies to borrowers whose homes were damaged by Hurricane Sandy.

The aid applies to property owners living in towns and cities along the eastern United States that have been declared disaster areas by President Barack Obama.

Millions of people were left reeling in the aftermath of the super storm that made landfall on Monday and resulted in flooding, wide-spread power outages and deaths.

The historic storm caused government offices and U.S. financial markets to close on Monday and Tuesday. Preliminary estimates show that damage could exceed $10 billion.

“Freddie Mac has authorized the nation’s mortgage servicers to provide a full range of mortgage-relief options to affected borrowers with mortgages owned or guaranteed by Freddie Mac,” said Tracy Mooney, senior vice president of single-family servicing and real estate owned at Freddie Mac.

[HUFFINGTON POST]

U.S. Department of Housing and Urban Development – Shaun Donovan, Secretary

Office of Public Affairs, Washington, DC 20410

HUD No. 12-166/167                                                                                                         FOR RELEASE

April A. Brown                                                                                                            Tuesday

(202) 708-0685                                                                                                           October 30, 2012

www.hud.gov/news/   

HUD SECRETARY ANNOUNCES FORECLOSURE PROTECTION

FOR DISPLACED NEW JERSEY AND NEW YORK STORM VICTIMS

            WASHINGTON – U.S. Housing and Urban Development Secretary Shaun Donovan today announced HUD will speed federal disaster assistance to New York State and New Jersey, providing support to homeowners and low-income renters forced from their homes due to Hurricane Sandy.

                Today, President Obama issued a disaster declaration for Bronx, Kings, Nassau, New York, Richmond, Suffolk, and Queens counties in New York.  The President also issued a disaster declaration for Atlantic, Cape May, Essex, Hudson, Middlesex, Monmouth, Ocean and Union Counties in New Jersey.  These declarations allow HUD to offer foreclosure relief and other assistance to certain families living in these counties.

            “Families who may have been forced from their homes need to know that help is available to begin the rebuilding process,” said Donovan. “Whether it’s foreclosure relief for families with FHA-insured loans or helping these counties to recover, HUD stands ready to help in any way we can.”

            HUD is:

Ø  Offering the New York, New Jersey and other entitlement communities the ability to re-allocate existing federal resources toward disaster relief – HUD’s Community Development Block Grant (CDBG) and HOME programs give the State and communities the flexibility to redirect millions of dollars to address critical needs, including housing and services for disaster victims. HUD is currently contacting State and local officials to explore opportunities to use the Department’s CDBG and HOME programs in order to expedite the repair and replacement of damaged housing;

Ø  Granting immediate foreclosure relief – HUD granted a 90-day moratorium on foreclosures and forbearance on foreclosures of Federal Housing Administration (FHA)-insured home mortgages

• Making mortgage insurance available – HUD’s Section 203(h) program provides FHA insurance to disaster victims who have lost their homes and are facing the daunting task of rebuilding or buying another home. Borrowers from participating FHA-approved lenders are eligible for 100 percent financing, including closing costs;

Ø  Making insurance available for both mortgages and home rehabilitation – HUD’s Section 203(k) loan program enables those who have lost their homes to finance the purchase or refinance of a house along with its repair through a single mortgage. It also allows homeowners who have damaged houses to finance the rehabilitation of their existing single-family home; and

Ø  Offering Section 108 loan guarantee assistance – HUD will offer state and local governments federally guaranteed loans for housing rehabilitation, economic development and repair of public infrastructure. 

Ø  Information on housing providers and HUD programs -The Department will share information with FEMA and the State on housing providers that may have available units in the impacted counties.  This includes Public Housing Agencies and Multi-Family owners.  The Department will also connect FEMA and the State to subject matter experts to provide information on HUD programs and providers.

            Read about these and other HUD programs designed to assist disaster victims.

###

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all. HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build inclusive and sustainable communities free from discrimination; and  transform the way HUD does business. More information about HUD and its programs is available on the Internet at www.hud.gov and http://espanol.hud.gov.  You can also follow HUD on twitter @HUDnews, on facebook at www.facebook.com/HUD, or sign up for news alerts on HUD’s News Listserv

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

EconoMonitor-

This column discusses one of the more subtle issues raised by the Department of Justice’s (DOJ’s) civil fraud action against Bank of America (B of A). The issue was so subtle that of the three articles about the lawsuit that I choose to review the night after the suit was filed, only the NYT article mentioned one of the most important aspects of the suit – the key role that the whistleblower played in making the action possible. The AP and the WSJ articles ignored the fact.

The lawsuit threatens to impose steep fines on the bank. The Justice Department filed the case under the False Claims Act, which could provide for triple the damages suffered by Fannie and Freddie, a penalty that could reach more than $3 billion.

The act also provides an avenue for a Countrywide whistle-blower, Edward J. O’Donnell, to cash in. Under the act, the government can piggyback on accusations he filed in a lawsuit that was kept under seal until now.

[ECONOMONITOR]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

U.S. BANK NATIONAL ASSOCIATION, as Trustee for C-BASS Mortgage, Plaintiff-Respondent,
v.
JOHN WRIGHT, Defendant-Appellant, and
All Occupants and Persons in Possession, Defendants.

Holger Uhl argued the cause for respondent. With him on the brief was McCarthy & Holthus, LLP.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.

NAKAMOTO, J.

Reversed and remanded.

NAKAMOTO, J.

Plaintiff U.S. Bank National Association filed this action to eject defendant John Wright from real property that plaintiff allegedly purchased at a trustee’s sale. Defendant, in his answer, alleged that he was the owner of the property and otherwise denied plaintiff’s allegations. Plaintiff then moved for summary judgment on the ejectment claim, and the trial court granted the motion. For the reasons explained below, there are genuine issues of material fact that preclude summary judgment on this record— namely, a factual dispute as to whether plaintiff actually purchased the property at a trustee’s sale. We therefore reverse and remand.

In August 2010, plaintiff, as “Trustee for the C-BASS Mortgage Loan Asset-backed Certificates, Series 2006-MH1,” filed a complaint to eject defendant from property located in Prineville (“the property”). Plaintiff alleged that defendant “was title owner to the [p]roperty”; that defendant had obtained a loan to purchase the property; and that defendant had executed a deed of trust to secure repayment of that loan. Plaintiff further alleged that defendant had “defaulted in the Terms of the Deed of Trust and a Notice of Trustee’s Sale was issued” to defendant.

According to the complaint, on July 20, 2010, the property was then “sold at a Trustee’s sale and conveyed to Plaintiff.” Because of that conveyance, plaintiff alleged, “[p]laintiff is the legal owner of the [p]roperty and is entitled to immediate possession thereof.” Plaintiff attached to the complaint a copy of the “recorded Trustee’s Deed Upon Sale” that recited that plaintiff had purchased the property.

Defendant’s answer essentially consisted of the following two paragraphs:

“Defendant Wright admits that he is the owner of the real property described in Plaintiff’s Complaint and that he obtained a loan thereon from Argent Mortgage Company, LLC and granted Argent Mortgage Company a Trust Deed on the real property as security for said loan.

“Defendant Wright denies all remaining allegations of Plaintiff’s Complaint.”

After defendant answered, plaintiff filed a motion for summary judgment on the ejectment claim. Plaintiff argued that, despite defendant’s general denial of the allegations in the complaint, “the material facts are a matter of public record, showing that Plaintiff is the legal owner of the property in dispute pursuant to a Trustee’s Deed.” Specifically, plaintiff argued that the trustee’s deed attached to the complaint, which was recorded with Crook County on July 27, 2010, shows plaintiff as the owner of the property and “on its own provides thus sufficient basis for judgment for the Plaintiff.”

Furthermore, anticipating defendant’s response, plaintiff did not rest solely on the force of the recorded trustee’s deed. In its memorandum in support of its summary judgment motion, plaintiff “also discusse[d] the [nonjudicial foreclosure] process which led to the issuance of said deed since Defendant may also want to attack that process.” Plaintiff argued that each of the statutory requirements for nonjudicial foreclosure under ORS 86.755 had been satisfied, including, among other requirements, that the property was actually sold to plaintiff at a trustee’s sale. On that point—whether a sale occurred— plaintiff argued:

“Under ORS 86.755(1), the sale shall be held on the date and at a time and place designated in the notice of sale or may be postponed by the Trustee. The Trustee may postpone the sale for one or more periods totaling not more than 180 days from the original sale date, giving notice of each adjournment by public proclamation made at the time and place set for sale. ORS 86.755(2).

“The Sale was scheduled and held on 07/20/2010, which was more than 120 days from the Notice of Sale. A copy of the Sale Certificate is attached to the Declaration [in support of plaintiff’s motion].

“ORS 86.755(3) provides that within 10 days of the sale, the Trustee shall execute and deliver the Trustee’s Deed to the purchaser.

“The Trustee executed and delivered a Trustee’s Deed to the Beneficiary on July 27, 2010. Said Deed recited that a sale had occurred. See Declaration [in support of plaintiff’s motion], `Exhibit F.’ Said recitations are prima facie evidence of their truth and conclusive evidence in the case of a good faith purchaser for value. ORS 86.780.

“Plaintiff relied upon the recitations in said Trustee’s Deed in good faith and paid value in the form of a credit bid. A credit bid is for `cash’ within the meaning of ORS 86.755. Bank of Myrtle Point v. Security Bank of Coos County, [79 Or App 184, 190, 718 P2d 1373 (1986)]. Thus the recitation is conclusive evidence that a sale actually occurred.“^[1]

(Emphasis added.)

Defendant, as plaintiff expected, attacked the validity of the trustee’s deed, including plaintiff’s evidence that he was in default and that any trustee’s sale had actually occurred. Defendant’s opposition to the motion included declarations from himself and his wife in which they attested to the following facts. In December 2009, defendant received a notice that he was in default and that the trustee had elected to sell the property under the terms of the trust deed. The notice designated April 26, 2010, as the date of the trustee’s sale. Then, approximately two weeks before that scheduled sale, defendant received a letter from Litton Loan Servicing, the company servicing his loan, that denied his request for a loan modification; the basis for that denial was that “you [defendant] are current on your mortgage loan”—in other words, not in default. Defendant’s wife and others nonetheless appeared at the Crook County courthouse at 11:00 a.m. on April 26, the designated place and time of the trustee’s sale, but no one appeared to conduct the sale. Three months later, defendant received a telephone call from a real estate agent telling him that his property would be sold on July 20, 2010, at 11:00 a.m. at the front door of the Crook County courthouse. Defendant’s wife and others appeared at the scheduled time, but again no one came to conduct the sale. Thus, defendant argued, the recitals in the trustee’s deed were a sham: No trustee’s sale had actually occurred.

The trial court granted plaintiff’s motion for summary judgment. The court, in an opinion letter, explained:

“This is an eviction action. I find no authority, and none [was] presented by [defendant], to convince me that this is an action to determine the validity of the deed.

“In addition, there has been no showing that [defendant] could or would have cured the default in this case. This is an action for eviction, and Plaintiffs are the legal owners of the property and are entitled to possession. * * *”

The court subsequently entered a judgment that plaintiff was entitled to immediate possession of the property and that directed the clerk of the court to issue a writ of execution authorizing the county sheriff to physically remove defendant from the premises. In July 2011, the Crook County Sheriff enforced the judgment and gave possession of the property to plaintiff.

Defendant appeals that judgment, arguing that the trial court erred in ruling “that it could not determine the validity of the Trust[ee’s] Deed in this action, [and] that Plaintiff is the legal owner of the property and entitled to possession.” Plaintiff, in response, reprises its arguments that title to the property was not at issue in the case, but even if it were, the “scant evidence submitted by Defendant to the trial court” was insufficient to “refute that Plaintiff was the legal owner of the [p]roperty entitled to possession by virtue of the Trustee’s Deed.”^[2]

As the parties have framed their arguments, there are two issues before us. First, we must determine whether, in this ejectment action, defendant is permitted to challenge the validity of the trustee’s deed, the alleged source of plaintiff’s title to the property. Second, if the validity of the trustee’s deed is at issue, then we must determine whether defendant’s evidence was sufficient to create a genuine dispute of fact on that matter. We address the arguments in that order.

The trial court, as previously noted, first ruled that the ejectment action concerned only plaintiff’s right to possession, and not the validity of the trustee’s deed. We disagree with that premise. By its very nature, an action for ejectment requires the plaintiff to prove the nature of its legal estate in the property. ORS 105.005(1) (“Any person who has a legal estate in real property and a present right to the possession of the property, may recover possession of the property, with damages for withholding possession, by an action at law.” (Emphasis added.)); ORS 105.010(1) (providing that a plaintiff’s complaint in an ejectment action shall set forth “[t]he nature of the estate of the plaintiff in the property, whether it be in fee, for life, or for a term of years; including, when necessary, for whose life and the duration of the term”). The Supreme Court has long recognized that Oregon statutes governing ejectment actions contemplate “that the title to land may be tried in an action to recover possession thereof.” Hoover v. King, 43 Or 281, 284, 72 P 880 (1903) (so concluding after discussing The Codes and Statutes of Oregon, title IV, ch III, §§ 326, 328, 329, 330 & 339 (Bellinger & Cotton 1901)); accord Weatherford v. McKay, 59 Or 558, 560, 117 P 969 (1911). In this case, plaintiff pleaded that it is the “legal owner of the [p]roperty” because the property “was sold at a Trustee’s sale and conveyed to Plaintiff.” Defendant, in his answer, denied those allegations.

The effect of defendant’s general denial was to put plaintiff to its proof as to whether it had a legal estate in the property. That is, plaintiff was required to adduce evidence that, as alleged in the complaint, plaintiff obtained an estate in the property by way of a trustee’s sale. Thus, plaintiff’s complaint and defendant’s answer raised the issue of the validity of the trustee’s deed, including whether a trustee’s sale ever occurred.

Plaintiff acknowledges that defendant generally denied the allegations in its complaint, including the allegations regarding plaintiff’s ownership interest in the property. But, according to plaintiff, “a defendant cannot rely on a general denial alone to bring title in issue.” Rather, a defendant must plead his ownership or right of possession with particularity. See ORS 105.015 (“The defendant shall not be allowed to give in evidence any estate, license or right of possession in the property in the defendant or another, unless the same is pleaded in the answer. If pleaded, the nature and duration of the estate, license or right of possession shall be set forth with the certainty and particularity required in a complaint.”).

Plaintiff’s argument, however, erroneously shifts the burden of pleading and proving title from itself to defendant. Even assuming that defendant’s answer fails to set forth his own estate in the property,^[3] that pleading deficiency would not relieve plaintiff of the burden of proving its alleged estate in the property after purchasing the property at a trustee’s sale. Unless plaintiff proves its own estate in the property, it cannot eject anyone from the property, regardless of whether those occupants have a right to possession. ORS 105.005(1); see also Eggen et ux. v. Wetterborg et al., 193 Or 145, 151, 237 P2d 970 (1951) (“to qualify as a plaintiff in an action of ejectment, one must have a legal estate in the property involved, as well as a present right to the possession thereof”).

For that reason, this is not, as plaintiff characterizes it, simply a “battle of superior title”—for instance, a case in which defendant acknowledges plaintiff’s estate in the property but seeks to prove that he or someone else has a superior right to ownership or possession, thereby avoiding the allegations in the complaint. Cf. Pacific Livestock Co. v. Portland Lbr. Co., 96 Or 567, 575-76, 189 P 893 (1920) (plaintiff was entitled to a directed verdict on an ejectment claim where “[t]he plaintiff is admitted to be the owner in fee simple of the property. No license or other adverse estate has been pleaded, and an estoppel against the ejectment plaintiff has not been proved.”). Rather, defendant denies that plaintiff has any estate in the property, and plaintiff has not provided, nor are we aware of, any authority that would prevent defendant from offering evidence to refute, rather than to avoid, plaintiff’s allegation that it became the legal owner of the property by purchase at a trustee’s sale. See Phillipi v. Thompson, 8 Or 428, 433 (1880) (under a general denial in an ejectment action, the defendant “was entitled to offer any evidence which had a tendency to weaken the claim of title under which the plaintiff claimed, for as the plaintiff must make out a prima facie case, the defendant might show flaws in that title”).

Having concluded that plaintiff’s title to the property was at issue in the ejectment action, the remaining question is whether, as to that title issue, there remains any genuine dispute of fact on this record. To answer that question, we view the evidence in the light most favorable to defendant, the nonmoving party. Clackamas Cty Assessor v. Village at Main St. Phase II, 349 Or 330, 332, 245 P3d 81 (2010). And, viewed in that light, we conclude that the record, and particularly the declaration of defendant’s wife, raises a genuine issue of material fact as to whether any trustee’s sale occurred.

The summary judgment record includes conflicting evidence regarding the sale itself. Plaintiff initially offered two documents to prove that a trustee’s sale of the property occurred on July 20, 2010, at the Crook County courthouse. The first was a trustee’s deed, recorded with the county, that recited:

“Pursuant to the notice of sale, the undersigned trustee on 7/20/2010 at the hour of 11:00:00 AM, in accord with the standard of time established by ORS 187.110, and at the place so fixed for sale, in full accordance with the laws of the state of Oregon and pursuant to the powers conferred upon him by said trust deed, sold the Property in one parcel at public auction to the second party for the sum of $105,000.00, he being the highest and best bidder at the sale. The true and actual consideration paid for this transfer is the sum of $105,000.00.”

The second document, generated by LPS-Agency Sales & Posting, unsigned and undated, was titled “Certificate of Sale at Public Auction” and stated:

“LPS — Agency Sales & Posting, certifies that on 07/20/2010 at the hour of 11:00 AM, Aaron Crowe, an authorized agent of LPS — Agency Sales & Posting, did sell at the same place as originally fixed by the Trustee in the Notice of Sale, the property described in the Notice of Sale.

“The property (went/was) Back to Beneficiary for the sum of $105,000.00[.]”

(Boldface and underscoring in original.) Plaintiff also offered an affidavit from Timothy Donlon, an employee of Quality Loan Service, who averred that Quality was the local agent responsible for performing the foreclosure in Oregon; that “Quality’s records reflect that the Trustee’s Sale was held on July 20, 2010”; that “Quality’s records reflect that the Trustee executed and delivered a Trustee’s Deed Upon Sale to the Beneficiary on July 27, 2010”; and that “Quality’s records indicate that the property sold at the sale for the price of $105,000.00.”

The recitals in the trustee’s deed constitute prima facie evidence that the trustee’s sale occurred as set forth in that recorded deed. ORS 86.780 (“When the trustee’s deed is recorded in the deed records of the county or counties where the property described in the deed is situated, the recitals contained in the deed and in the affidavits required under ORS 86.750(3) and (4) shall be prima facie evidence in any court of the truth of the matters set forth therein, but the recitals shall be conclusive in favor of a purchaser for value in good faith relying upon them.”). Yet neither the trustee’s deed, nor any of plaintiff’s other evidence, is dispositive at this stage, because defendant offered contrary evidence that no public sale actually occurred at the Crook County courthouse at the date and time that plaintiff alleges. According to the declaration of defendant’s wife, she and others interested in purchasing the property were present at the front door to the courthouse at 11:00 a.m. on July 20, 2010, and no auction was held.

Plaintiff responds that the declaration from defendant’s wife establishes only that she did not witness a sale, not that a sale did not occur. Although the inference that plaintiff draws may be a reasonable one, it is not the only reasonable inference that can be drawn from the facts in the declaration. Plaintiff has never suggested that a trustee’s sale—an advertised public auction for the property as part of a nonjudicial foreclosure—was conducted anywhere other than at the Crook County courthouse or was conducted at any time other than 11:00 a.m. See ORS 86.755(1)(a) (stating that the “trustee shall hold a trustee’s sale on the date and at the time and place designated in the notice of sale”); ORS 86.755(2) (trustee “may postpone the sale for one or more periods that total not more than 180 days from the original sale date, giving notice of each adjournment by public proclamation made at the time and place set for sale”). In fact, in reply to the declaration, plaintiff simply offered additional evidence to disprove the averments by defendant’s wife, including an affidavit from Aaron Crowe, the person listed as the seller’s agent on the “Certificate of Sale at Public Auction.” In that affidavit, Crowe says that he is employed by Nationwide Process Service, Inc., and that another person, Pamela Fournier, actually conducted the sale and reported to Crowe that “the Wright sale script had been read aloud in its entirety and that no one was present for the public reading at the front entrance to the Crook County Courthouse.”

In short, plaintiff’s and defendant’s version of events at the entrance of the Crook County courthouse cannot both be true, and, for purposes of summary judgment, we must assume that a factfinder would resolve the dispute in favor of defendant. Based on the declaration from defendant’s wife, along with the other evidence in the record, a reasonable trier of fact could find that the only trustee’s sale that plaintiff has ever alleged—the sale at the courthouse at 11:00 a.m. on July 20, 2010—never happened.

Defendant also asserts that he demonstrated at least one other factual dispute as to the validity of any foreclosure of his interest in the property that precluded summary judgment.^[4] In the trial court, defendant presented evidence that any sale of the property should have been conducted on April 26, not July 20, 2010. Under ORS 86.755(1), the trustee is required to hold the sale on the date and at the time and place designated in the notice of sale. Although a trustee may postpone a sale “for one or more periods that total not more than 180 days from the original sale date,” the trustee must publicly give notice of “each adjournment” at “the time and place set for sale.” ORS 86.755(2). Viewing the evidence in the light most favorable to defendant, the only notice of trustee’s sale that is in the summary judgment record and that he received showed a sale date of April 26, 2010, at 11:00 a.m.; the postponement of the sale to July 20, 2010, was not publicly announced given that neither the trustee nor anyone else showed up to sell the property on April 26; and he learned of the July sale date through a real estate agent. Plaintiff contends that defendant’s evidence did not establish a disputed issue of fact, but we reject that contention given the evidence in the summary judgment record. Plaintiff also contends that, in any event, the issue was immaterial because only plaintiff’s right to possession was properly before the trial court, a legal premise we have already rejected.

Thus, there is a genuine issue of material fact on this record as to whether plaintiff ever obtained valid title to the property by purchase at a trustee’s sale. Consequently, the trial court erred in granting summary judgment, and we reverse and remand for further proceedings.

Reversed and remanded.

[1] Below, plaintiff argued that the recitals in the trustee’s deed were conclusive because plaintiff was a “purchaser for value in good faith.” On appeal, plaintiff has abandoned that argument, presumably because plaintiff, as the purchaser, would have known the recital in the trustee’s deed to be false if, in fact, no trustee’s sale actually occurred.

[2] Plaintiff’s threshold contention is that the appeal is moot because the sheriff executed the writ and removed defendant from the property. We have previously rejected that argument, and we do so again. See Greene v. Hren, 224 Or App 223, 228-29, 197 P3d 1118 (2008) (“Physical possession and the right to possession are two distinct issues in an FED action. In this case, defendant’s move out of the motel room resolved the issue of physical possession; that was not, however, a concession that plaintiffs had a right to possession. Whether the trial court correctly determined that plaintiffs were entitled to evict defendant and regain possession of the premises is precisely the issue that defendant raises on appeal. Accordingly, the dispute between the parties in this case is not moot.” (Emphasis omitted.)); Pendergrass v. Fagan, 218 Or App 533, 536-37, 180 P3d 110, rev den, 344 Or 670 (2008) (“[E]ven if a tenant vacates the premises and resolves the issue of `physical possession’ of the premises, a tenant’s defenses to an eviction action are not moot if the issue of `right to possession’ remains for the court to decide.”).

[3] Defendant’s answer alleged that “he is the owner of the real property described in Plaintiff’s Complaint and that [defendant] obtained a loan thereon from Argent Mortgage Company, LLC and granted Argent Mortgage Company a Trust Deed on the real property as security for said loan.” Defendant also denied plaintiff’s allegations that defendant was in default and the allegation that plaintiff was the legal owner. It is not at all clear to us that defendant’s answer fails to allege his ownership with the particularity required by ORS 105.015, but we need not reach that pleading issue for purposes of this appeal. And, considering that defendant could ask for leave to amend the answer on remand, we express no further opinion on the matter.

[4] In opposition to the motion for summary judgment, defendant presented a letter from his loan servicer indicating that he had not been in default near the time noticed for the trustee’s sale in April 2010. However, the record does not reflect that defendant argued to the trial court that a jury could conclude that he was not in default and, thus, that any trustee’s sale was invalid. Cf. Staffordshire Investments, Inc. v. Cal-Western, 209 Or App 528, 534, 149 P3d 150 (2006), rev den, 342 Or 727 (2007) (in Oregon, as a precondition to the trustee’s exercise of the power of sale, there must be a present default by the grantor for which sale is authorized by the terms of the trust deed). Rather, he appeared to use the letter as evidence that plaintiff’s agents were either incompetent or mendacious. Accordingly, we decline to express an opinion on the default issue on appeal.

DENVER–Colorado Attorney General John Suthers today announced that the State of Colorado will receive $1.8 million as part of a settlement with Lender Processing Services, Inc. (NYSE: LPS) for past document execution practices by LPS subsidiaries DocX, LLC and LPS Default Solutions, Inc. Florida-based LPS provides technology and other services to mortgage loan servicers.  

During a period from January 1, 2008 to December 31, 2010, certain residential mortgage loan servicers authorized specific persons employed by LPS subsidiaries DocX and LPS Default Solutions to sign or assist with the execution of mortgage-related documents, including lost instrument affidavits, deed of trust lien releases, and assignments of deeds of trust. Some of the mortgage -related documents generated or executed by LPS subsidiaries contained defects such as unauthorized signatures and improper notarizations. 

“This settlement with LPS is part of our on-going investigation into all facets of the foreclosure process in Colorado,” said Suthers. “It is important that the foreclosure process work as intended and that borrowers and the legal system have confidence in it.”

Between March 1, 2009 and November 1, 2009, employees and agents of DocX were directed by management of DocX to implement a program under which some DocX employees signed mortgage-related documents in the name of other DocX employees, who were or had been at one time authorized to sign on behalf of certain mortgage servicers. DocX referred to these signers as “surrogate signers,” who then executed certain mortgage-related documents in the name of other DocX employees without indicating that the document had been signed by a surrogate signer.

As part of the settlement, LPS and its subsidiaries agree not to engage in any surrogate signing program or execute any mortgage-related documents without an affiant’s review and personal knowledge of the accuracy and completeness of the statements in the documents. LPS and its subsidiaries also will ensure that any mortgage-related document that is executed on behalf of a servicer is done pursuant to proper and verifiable authority to sign on behalf of the servicer.

The settlement funds will be used for programs related to foreclosure prevention, loan modification and housing, to reimburse the Colorado Attorney General’s Office for its attorney fees and costs, and for future consumer protection and antitrust enforcement and education efforts in the state.

# # #

Attachments: 

102912_lps_mortgage_related_document_settlement.pdf

102912_fully_executed_assurance_discontinuance_colorado.pdf

.

Plain and simple: If you support any candidate who was backed by Wall Street, you also support those who caused Foreclosure Fraud. Another reason is because none of them did anything and I mean nothing from getting you or will eventually have you evicted out of your home.

Sorry you can’t have it one way and not the other.

HuffPO-

If you’ve been listening to Neil Barofsky gripe about the Obama administration’s handling of bank bailouts, you might think he’s got it in for President Obama. But he thinks Mitt Romney could be worse.

This is what you get when your democracy is so powerfully influenced by Wall Street money — no matter who wins the presidential election, chances are good that regulators will either be willfully captured by the banks they regulate, or bullied into submission.

[HUFFINGTON POST]