Via: Gary Dubin
Once a borrower can shoehorn his or her way into the mechanics of a securitized trust in this way, the next issue arises whether the underlying debt has already been partially or completely paid by non-recourse insurance which is usually the case and therefore carrying the Court’s reasoning further, what is actually still owed and to whom if the debt and the investors have for instance already been paid.
Gardner v. Nationstar Mortgage, LLC
United States District Court for the District of Arizona
December 7, 2015, Decided; December 7, 2015, Filed
No. 2:13-cv-1641-HRH; [Consolidated with No. 2:13-cv-2478-HRH]
Reporter
2015 U.S. Dist. LEXIS 163703
JAY N. GARDNER and RACHEL B. GARDNER, Plaintiffs,
vs.
NATIONSTAR MORTGAGE, LLC,
et al., Defendants.
Background
Plaintiffs are Jay N. Gardner and Rachel B. Gardner. Defendants are Nationstar Mortgage LLC; T.D.
Service Company of Arizona; U.S. Bank, N.A.;4 Starlet J. Japp; Clayton A. Goff; AMSL Legal Group,
LLC; and AMSL Legal Group, LLP.5
In April 2007, plaintiffs borrowed $960,000 from GreenPoint Mortgage Funding, Inc., to purchase
²property located at 3601 East Mountain View Road, Phoenix, Arizona….²6 The Adjustable Rate Note
that plaintiffs signed named GreenPoint as the ²Lender² and provided ²that Lender may transfer this
Note. Lender or anyone who takes this Note by transfer and who is entitled to receive payments under
this Note is called the ’Note Holder.’²7 The Note provided that if the borrower is
in default, the Note Holder may send me [the borrower] a written notice telling me that if I do not
pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the
full amount of Principal that has not been paid and all the interest that I owe on that amount. That
date must be at least 30 days after the date on which the notice is mailed to me or delivered by other
means.8
Plaintiffs, as trustors, also executed a Deed of Trust.9 The Deed of Trust named GreenPoint as the
²Lender² and Marin Conveyancing Corp. as the ²Trustee.²10 The Deed of Trust listed the Mortgage
[*4] Electronic Registration Systems, Inc. (MERS), ²as a nominee for the Lender and Lender’s
successors and assigns. MERS is the beneficiary under this Security Interest.²11 The Deed of Trust
provided that ²[t]his Security Instrument secures to Lender: (i) the repayment of the Loan, and all
renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants
and agreements under this Security Interest and Note.²12 ²For this purpose, Borrower irrevocably
grants and conveys to Trustee, in trust, with power of sale² the property at 3601 East Mountain View
Road, Phoenix, Arizona.13
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