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DEUTSCHE BANK v. Dvorak – Ohio: Court of Appeals | failed to satisfy its initial burden of demonstrating that it was the holder of the Note

DEUTSCHE BANK v. Dvorak – Ohio: Court of Appeals | failed to satisfy its initial burden of demonstrating that it was the holder of the Note

2014-Ohio-4652

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH2, Asset Backed Pass-Through Certificates, Series 2007-CH2, Appellee,
v.
NORMA J. DVORAK, et al., Appellants.

C.A. No. 27120.
Court of Appeals of Ohio, Ninth District, Summit County.
October 22, 2014.
JAMES R. DOUGLASS, Attorney at Law, for Appellants.

DAVID A. WALLACE, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

BELFANCE, Presiding Judge.

{¶1} Norma Dvorak and her son Richard Dvorak appeal the judgment of the Summit County Court of Common Pleas granting the motion for summary judgment of Deutsche Bank National Trust Company, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH2, Asset Backed Pass-Through Certificates, Series 2007 CH2 (“Deutsche Bank”) and ordering the foreclosure of the property. For the reasons set forth below, we reverse.

I.

{¶2} On September 7, 2006, Ms. Dvorak and Mr. Dvorak signed a promissory note (“the Note”) that was secured by a mortgage (“the Mortgage”), which they also signed. Chase Bank USA, N.A., was the lender and mortgagee on the instruments. Deutsche Bank filed a complaint for foreclosure on September 14, 2012, alleging that it was the holder of the Note and Mortgage and that the Dvoraks were in default on the Note. The Dvoraks filed a pro se answer, and Deutsche Bank moved for summary judgment. The Dvoraks retained counsel and filed an amended answer and a motion in opposition to Deutsche Bank’s motion for summary judgment. Deutsche Bank filed a reply along with a new affidavit. The trial court granted Deutsche Bank’s motion for summary judgment.

{¶3} The Dvoraks have appealed, raising three assignments of error for our review. For ease of discussion, we address their assignments of error together.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO PLAINTIFF-APPELLANT AND DENIED THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT-APPELLANTS,[1] SINCE PLAINTIFF-APPELL[EE] NOT ONLY ADMITTED THAT IT WAS NOT THE HOLDER OF THE NOTE AND ENTITLED TO ENFORCE SAME AND FURTHER FAILED TO ESTABLISH THAT IT WAS THE HOLDER OF THE NOTE AND ENTITLED TO ENFORCE SAME IN ITS MOTION FOR SUMMARY JUDGMENT.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT AWARDED SUMMARY JUDGMENT TO PLAINTIFF-APPELLEE WHO FAILED TO DEMONSTRATE ENTITLEMENT TO RELIEF AS A MATTER OF LAW[.]

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED WHEN IT AWARDED SUMMARY JUDGMENT TO A PLAINTIFF THAT FAILED TO DEMONSTRATE STANDING TO SUE[.]

{¶4} The Dvoraks argue that Deutsche Bank failed to demonstrate it had standing because it failed to satisfy its initial burden of demonstrating that it was the holder of the Note at the time it filed the complaint. We agree.

{¶5} 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. Summit No. 25427, 2011-Ohio-1519, ¶ 8.

{¶6} 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).

{¶7} “It is fundamental that a party commencing litigation must have standing to sue in order to present a justiciable controversy and invoke the jurisdiction of the common pleas court.” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 41. “The lack of standing at the commencement of a foreclosure action requires dismissal of the complaint * * *.” Id. at ¶ 40. The Dvoraks contend that the trial court erred in granting Deutsche Bank’s summary judgment because the bank did not establish that it had standing to bring the foreclosure action.

{¶8} In support of its motion for summary judgment, Deutsche Bank submitted the affidavit of Candace Reichardt, who averred that she was the vice president of JPMorgan Chase Bank, National Association. Ms. Reichardt further averred that, “[a]s a mortgage servicer, Chase collects payments from [Ms. Dvorak and Mr. Dvorak] and maintains up-to-date electronic records concerning the loans it services in its electronic record-keeping system[.]” According to Ms. Reichardt, the Dvoraks had failed to make a payment and had not subsequently made payments to cure the default.

{¶9} Deutsche Bank also submitted the affidavit of Dana Crawford. Ms. Crawford averred that she was a document control officer for Select Portfolio Servicing, Inc. (“SPS”), which was the servicing agent for Deutsche Bank. She further averred that, based upon her review of the business records of SPS, “[a]t the time of filing the complaint, and continuously since, Deutsche Bank * * * has been in possession of the original promissory Note.” Copies of the Note, Mortgage, the Dvorak’s Payment History, and the “Demand Letter” were attached to Ms. Crawford’s affidavit.

{¶10} “[A]ffidavits submitted in support of or in opposition to motions for summary judgment `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.’” Maxum Indemn. Co. v. Selective Ins. Co. of S.C., 9th Dist. Wayne No. 11CA0015, 2012-Ohio-2115, ¶ 18, quoting Civ.R. 56(E). In addition, Civ.R. 56(E) provides that “[s]worn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.” Generally, “a mere assertion of personal knowledge satisfies the personal knowledge requirement of Civ.R. 56(E) if the nature of the facts in the affidavit combined with the identity of the affiant creates a reasonable inference that the affiant has personal knowledge of the facts in the affidavit.” Bank One, N.A. v. Lytle, 9th Dist. Lorain No. 04CA008463, 2004-Ohio-6547, ¶ 13. “If particular averments contained in an affidavit suggest that it is unlikely that the affiant has personal knowledge of those facts, [however,] then * * * something more than a conclusory averment that the affiant has knowledge of the facts [is] required.” (Internal quotations and citations omitted.) Bank One, N.A. v. Swartz, 9th Dist. Lorain No. 03CA008308, 2004-Ohio-1986, ¶ 14. Averments in an affidavit may also be insufficient to indicate personal knowledge. In any case, “this Court `cannot infer personal knowledge from the averment of personal knowledge alone.’” Bank of Am., N.A. v. Loya, 9th Dist. Summit No. 26973, 2014-Ohio-2750, ¶ 12, quoting Maxum Indemn. Co. at ¶ 22.

{¶11} As noted above, Ms. Crawford averred that she is a document control officer for SPS, an entity she averred was the servicer of the Dvorak’s loan. She also averred that she “ma[d]e this affidavit based upon personal knowledge obtained from [her] personal review of [SPS'] business records for the loan which is the subject of this action.” Thus, it is clear that whatever knowledge Ms. Crawford has about the Note and the Mortgage were obtained from reviewing business records[2] rather than from something she had personally observed (e.g., she had seen the Note in Deutsche Bank’s vault the day that Deutsche Bank filed the complaint).

{¶12} However, Ms. Crawford did not attach the alleged business records that she referred to in support of her averment that she had personal knowledge based on SPS’s business records that Deutsche Bank was continuously in possession of the note. Ms. Crawford attached a copy of the Note endorsed in blank, the Mortgage, the assignment of the Mortgage, and “Demand Letter[.]” None of these documents indicate when, or even if, Deutsche Bank came into possession of the Note or that Deutsche Bank had possession of the note at the time the complaint was filed.[3] See, e.g., Loya at ¶ 11-15. See also Deutsche Bank Natl. Trust Co. v. Reynolds, 9th Dist. Summit No. 27192, 2014-Ohio-2372, ¶ 13-14.

{¶13} To the extent Ms. Crawford relied on documents beyond those attached to her affidavit, she did so in contravention of the provision in Civ.R. 56(E) that “[s]worn 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.) Civ.R. 56(E). See Walls v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 336 (6th Dist.1995). In this regard, the Dvoraks also argue that her affidavit is not based upon personal knowledge but rather impermissible hearsay. We agree that the requirement that averments in an affidavit be made upon personal knowledge and the requirement of attaching sworn or certified copies of all papers to the affiant’s affidavit serve are essentially safeguards against hearsay, which by definition, are statements that are made without personal knowledge. See, e.g., State v. Cicerchi, 182 Ohio App.3d 753, 2009-Ohio-2249, ¶ 52 (8th Dist.), quoting Hayes v. Cleveland Pneumatic Co., 92 Ohio App.3d 36, 44 (8th Dist.1993) (“Although Evid.R. 803(6) permits introduction of records of regularly conducted activity, that exception concerns the introduction of the documents themselves, not oral testimony * * *. `There is no hearsay exception that allows a witness to testify to the contents of business records, in lieu of providing and authenticating the records in question.’”). Thus, we find that the Dvoraks’ argument has merit to the extent Ms. Crawford is averring to the content of the business records that are not attached to her affidavit. Civ.R. 56(E). Therefore, because Ms. Crawford did not attach the business records upon which she relied to make her affidavit as required by Civ.R. 56(E) and because her personal knowledge was derived from SPS’s business records, her affidavit did not satisfy Deutsche Bank’s burden of establishing an absence of a dispute of fact that it was in possession of the Note at the time the complaint was filed. See U.S. Bank, N.A. v. Umphrey, 9th Dist. Summit No. 27172, 2014-Ohio-4461, ¶ 13-14.

{¶14} Similarly, Ms. Reichardt, who identified Chase as Deutsche Bank’s servicer, did not attach the records relied upon in her affidavit. Ms. Reichardt averred that she made the statements in the affidavit based upon her review of Chase’s business records. While Ms. Reichardt, like Ms. Crawford, attached copies of the Note, the Mortgage, and the assignment of the mortgage, those documents, as noted above, do not establish when or if Deutsche Bank came into possession of the Note or that Deutsche Bank was in possession of the Note at the time of the filing of the complaint. Furthermore, Ms. Reichardt averred that, based on Chase’s business records, “Plaintiff, directly or through its agent, is in possession of the original Note and was in possession prior to and at the time of filing the Complaint in this action.” However, Ms. Reichardt never identifies who “Plaintiff[]” is and further indicates that she does not know what entity is actually in possession of the Note: the “Plaintiff[]” or an agent. Thus, Ms. Reichardt’s affidavit also does not establish an absence of a dispute of fact that Deutsche Bank had possession of the Note at the time it filed the complaint in this case. See Civ.R. 56(E).

{¶15} Notwithstanding these problems, Deutsche Bank urges this Court to conclude that the affidavits of Ms. Crawford and Ms. Reichardt require reasonable minds to come to but one conclusion, which is that Deutsche Bank was in possession of the Note at the time it filed its complaint. However, none of the cases cited by Deutsche Bank to support its position actually address the circumstances of this case. Compare with Deutsche Bank Natl. Trust Co. v. Cassens, 10th Dist. Franklin No. 09AP-865, 2010-Ohio-2851, ¶ 13 (Note endorsed as payable to Deutsche Bank prior to the filing of the complaint.); Bank of New York v. Dobbs, 5th Dist. Knox No. 2009-CA-000002, 2009-Ohio-4742, ¶ 40 (Affiant was the employee of the company in possession of the original note and mortgage.); Deutsche Bank Natl. Trust Co. v. Ingle, 8th Dist. Cuyahoga No. 92487, 2009-Ohio-3886, ¶ 9 (Bank submitted affidavits from the loan servicer and the bank’s counsel, both of whom averred that the bank was in possession of the note.).

{¶16} Accordingly, the materials submitted by Deutsche Bank with its motion for summary judgment failed to demonstrate an absence of a dispute of fact that it had standing at the time it filed its complaint. The Dvoraks’ assignments of error are sustained.

III.

{¶17} In light of the foregoing, the judgment of the Summit County Court of Common Pleas is reversed, and the matter is remanded for further proceedings consistent with this opinion.

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.

GALLAGHER, J. CONCURS.

CARR, J. CONCURS IN JUDGMENT ONLY.

(Gallagher, J., of the Eighth District Court of Appeals, sitting by assignment)

[1] This reference to a motion for summary judgment by the Dvoraks appears to be made in error since the Dvoraks never moved for summary judgment in the trial court, nor do they make any argument in their brief regarding such a motion. See App.R. 16(A)(7). In any case, our decision today is limited solely to whether Deutsche Bank should have been awarded summary judgment.

[2] A business record is “[a] memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation[.]” Evid.R. 803(6).

[3] Although the Mortgage was assigned to Deutsche Bank by JPMorgan Chase, the Note had previously been transferred by Chase to a separate entity, making the assignment of minimal value at best for establishing the possession of the Note.

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Nash v BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, FKA COUNTRYWIDE HOME LOANS SERVICING, LP | FL Circuit Ct – The Note and Mortgage are VOID

Nash v BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, FKA COUNTRYWIDE HOME LOANS SERVICING, LP | FL Circuit Ct – The Note and Mortgage are VOID

The Court finds that:

a.) America’s Wholesale Lender, a New York Corporation, the “Lender”, specifically named in the mortgage, did not file this action, did not appear at Trial, and did not Assign any of the interest in the mortgage.

b.) The Note and Mortgage are void because the alleged Lender, America’s Wholesale Lender, stated to be a New York Corporation, was not in fact incorporated in the year 2005 or subsequently, at any time, by either Countrywide Home Loans, or Bank of America, or any of their related corporate entities or agents.

c.) America’s Wholesale Lender, stated to be a corporation under the laws of New York, the alleged Lender in this case, was not licensed as a mortgage lender in Florida in the year 2005, or thereafter, and the alleged mortgage loan is therefore, invalid and void. ·

[...]

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HSBC Bank USA, N.A. v Thomas | NYSC – PSA FAIL, AFFIDAVIT FAIL, RPAPL section 1304 FAIL, the PSA does not state that the notes or CEMA have in fact been physically delivered …whether the notes were endorsed…whether the purported allonge was firmly affixed to either note or CEMA

HSBC Bank USA, N.A. v Thomas | NYSC – PSA FAIL, AFFIDAVIT FAIL, RPAPL section 1304 FAIL, the PSA does not state that the notes or CEMA have in fact been physically delivered …whether the notes were endorsed…whether the purported allonge was firmly affixed to either note or CEMA

Decided on October 10, 2014

Supreme Court, Kings County

 

HSBC Bank USA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET- BACKED CERTIFICATES, SERIES 2007-3, , Plaintiff,

against

Patricia B. Thomas, VINCENT THOMAS, AMERICAN GENERAL HOME EQUITY INC., NYS DEPARTMENT OF TAXATION AND FINANCE, CAPITAL ONE BANK, PARKING VIOLATIONS BUREAU, ENVIRONMENTAL CONTROL BOARD, MIDLAND FUNDING LLC., “JOHN DOE No.1″ through “JOHN DOE #12″, the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendants.

7675 /2011
Wayne P. Saitta, J.

Plaintiff, HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET- BACKED CERTIFICATES, SERIES 2007-3, (hereinafter “Plaintiff”), moves this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Defendant and striking the answer of Defendant and granting further relief as this Court deems just and proper.

Upon reading the Notice of Motion for Summary Judgment for Referee to Compute by Danielle L. Tabankin, Esq., attorney for Plaintiff, HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET- BACKED CERTIFICATES, SERIES 2007-3, dated August 22nd, 2013, together with the Affirmation in Support of Danielle L. Tabankin, Esq., dated August 20th, 2013, together with the Affidavit in Support of Denise V. Lundquist, dated July 23rd, 2013, and all exhibits annexed thereto; the Affirmation in Opposition of Solomon Rosengarten, Esq., Attorney for Defendant, Patricia B. Thomas, dated November 29th, 2013; the Reply Affirmation of Richard O’Brien, Esq., attorney [*2]for Plaintiff, HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET- BACKED CERTIFICATES, SERIES 2007-3, dated December 4th, 2013, and all exhibits annexed thereto; and after argument of counsel and due deliberation thereon, Plaintiff’s motion for Summary Judgment is denied for the reasons set forth below.

 

FACTS

Plaintiff moves for summary judgment and seeks to strike the answer and dismiss the affirmative defenses of Defendant PATRICIA B. THOMAS, “Defendant”. Plaintiff commenced an action on April 9, 2011 to foreclose a mortgage which encumbers the property located at 9015 Avenue K, Brooklyn, NY. The mortgage secures loans made to Defendant in the total amount of $540,000.

On May 22, 2006, Defendant signed a note to repay a loan of $470,000 from Delta Funding Corporation. On May 22, 2006, Defendant also signed a mortgage to secure the note.

On June 29, 2007, Defendant signed a second note in return for a loan of $71, 856.13. On June 29, 2007, Defendant signed a second mortgage to secure this note.

Also on June 29, 2007, Defendant signed a Consolidation, Extension and Modification Agreement, (“CEMA”), consolidating the May 22, 2006 Note and the June 29, 2007 Note, and their underlying mortgages, for a new principal amount owing of $540,000.

The copy of the May 22, 2006 Note submitted with the moving papers is followed by a purported allonge, made out to the order of the Plaintiff and signed by Carol Hollman, Vice President of Delta Funding Corporation. There is no allonge attached to either the June 29, 2007 Note or the June 29, 2007 CEMA.

In support of its motion, Plaintiff annexes the affidavit of Denise V. Lundquist, Contract Management Coordinator of Ocwen Loan Servicing, LLC, purported attorney in fact for Plaintiff, and servicer of the loan. Lundquist attests that, based on her review of Ocwen’s servicing records, Plaintiff owns the note and mortgage [sic]. She attests that based upon “her own knowledge”, Plaintiff owned the note and mortgage [sic] at the time the action was commenced.

Defendant in her answer denied that Plaintiff is the owner of the note and mortgage. Defendant’s affirmative defenses include that Plaintiff lacks standing to bring this action and that Plaintiff failed to serve a ninety day notice pursuant to RPAPL section 1304.

ARGUMENTS

Plaintiff argues that Defendant’s answer should be stricken and that Plaintiff has standing because it was assigned the mortgage pursuant to an assignment by MERS, as nominee of Delta Funding Corporation, dated January 25, 2011. Plaintiff also asserts that it was in possession of the notes at the time the action was commenced.

It argues that because Defendant defaulted on the promissory notes that were secured by mortgages on the property located at 9015 Avenue K, Brooklyn NY, Plaintiff is entitled to foreclose on the security interest.

Defendant argues that Plaintiff has no standing to bring this action as it has not shown [*3]that it was the holder of the mortgages and the notes at the time the action was commenced. Defendant contends that Plaintiff was never assigned the notes, and that the notes were not negotiated to it as the purported allonge does not comport with the UCC section 3-202(2), which requires an allonge to be firmly affixed to the note. Defendant also argues that Plaintiff has not provided proof of service of the ninety day notice.

ANALYSIS

“A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note prior to commencement of the action with the filing of the complaint. Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.” GRP Loan, LLC v. Taylor, 95 AD3d at 1173, 945 N.Y.S.2d 336 (2nd Dept 2012), internal citations omitted.

The assignment of the mortgage, which Plaintiff relies on to demonstrate ownership of the note, is insufficient because on its face it only assigns the mortgage. It does not include an assignment of the notes or the underlying debt. Further, it includes no evidence that Delta Funding authorized MERS, as nominee, to assign the mortgage. Thus, the assignment cannot establish Plaintiff’s standing. Bank of New York v Silverberg, 86 AD3d 274 (2nd Dept 2011), Aurora v Weissblum, 85 AD3d 95, 923 NYS2d 609 (2nd Dept 2011).

Plaintiff has also failed to establish that the note was negotiated to it prior to commencement of this action.

Negotiation requires physical delivery of a note, endorsed either specifically to the party or endorsed in blank. UCC § 3—202(1) and UCC § 3—204(2). The endorsement must be made either on the face of the note or on an allonge so firmly affixed to the note as to become a part thereof. UCC section 3-202(2).

Plaintiff has submitted, in support of its motion, copies of the two notes and the CEMA.

The two notes and CEMA are all between Defendant and Delta Funding Corp., and none contains an endorsement on its face.

Immediately following the copy of the May 22, 2006 note is an undated allonge, on a separate sheet of paper, with a specific endorsement by Delta Funding Corporation to Plaintiff. However, the allonge references loan number #0103451001 which is the number of the June 29, 2007 note, not the May 22, 2006 note. This discrepancy is sufficient to raise a question of fact as to whether the purported allonge was firmly affixed to the 2006 note.

Further there is no evidence of endorsement of either the second note or the CEMA.

Plaintiff alleges that the CEMA combines the two notes and “accordingly the allonge would transfer both notes”.

This argument is analogous to that made by the Plaintiff in Aurora v Weissblum, 85 AD3d 95, 923 NYS2d 609 (2nd Dept 2011). In Aurora, there were two notes and mortgages consolidated by a CEMA. Aurora argued that an assignment of the first note and mortgage effected an assignment of the second note and consolidated note. The Second Department rejected that argument, noting that Aurora produced no documentation of assignment of the second note or the CEMA. Id., at 109, 618. The argument that an allonge, even if firmly [*4]attached to the first note, can effect a negotiation of the second note or CEMA is less sound than the argument that an assignment of one note can effect the assignment of a consolidated note.

Plaintiff’s argument ignores the rationale for the requirement that an allonge be firmly affixed to the note it endorses. Further, it is inconsistent with a promissory note’s function as a negotiable instrument. The prime characteristic of a negotiable instrument is that it can be negotiated based on physical delivery and endorsement, and a buyer of the note can rely on its enforcement without resort to additional documentation.

Plaintiff’s argument that Defendant’s objection to applying one allonge to two notes “puts form over fact” misses the fact that the rights and obligations connected to a negotiable instrument derive from its form, and are inextricably dependent on it.

Additionally, Plaintiff has failed to offer evidence in admissible form that the notes were physically delivered to them before commencement of the action. The affidavit by Lundquist, which merely asserts in a conclusory fashion that Plaintiff owns the mortgage and note, is insufficient as the “affiant failed to give any factual detail of a physical delivery of both the consolidated note and CEMA”. Aurora, supra, at 109, 619.

Plaintiff also argues that the Pooling and Servicing Agreement (“PSA”) “categorically proves” physical possession of the note. However, the PSA does not state that the notes or CEMA have in fact been physically delivered to the Plaintiff. Further, the PSA does not address whether the notes were endorsed to Plaintiff or whether the purported allonge was firmly affixed to either note or CEMA.

As there still remain questions of fact as to whether the notes and CEMA were negotiated or transferred to Plaintiff before commencement of the action, summary judgment dismissing Defendant’s affirmative defense of lack of standing is inappropriate.

RPAPL 1304

Defendant raised as a fourth affirmative defense that Plaintiff failed to serve a ninety day notice required by RPAPL section 1304 as a condition precedent to commencing a foreclosure action.

While Plaintiff provides a copy of the ninety day notice, it does not provide an affidavit of mailing of the notice.

In her affidavit, Lundquist states that the notice was sent by first class mail and certified mail. However, no mailing receipt or other business record on which she bases her statement is either identified or appended.

While service of mail is complete upon deposit of a properly stamped and addressed envelope, and presumed to be received, there still must be evidence that a properly stamped and addressed envelope was mailed.

As Plaintiff has not provided proof in admissible form that the ninety day notice was mailed, it has not met its burden for summary judgment. Aurora v Weissblum, 85 AD3d 95, 923 NYS2d 609 (2nd Dept 2011).

WHEREFORE Plaintiff’s motion for summary judgment striking Defendant’s answer and dismissing her affirmative defenses is denied, and it is hereby

Ordered that the parties are directed to appear at a preliminary conference in the Intake Park on November 13, 2014.

This shall constitute the decision and order of this Court.

ENTER,

______________________________

J S C

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BNY Mellon Nails JPMorgan With $475M Mortgage Loan Suit

BNY Mellon Nails JPMorgan With $475M Mortgage Loan Suit

Law 360-

The Bank of New York Mellon Corp., acting as a trustee for a pool of home loans, has hit JPMorgan Chase Bank NA and others with a New York suit seeking $475 million over alleged misrepresentations made in the sale of $959 million in residential mortgage loans.

Suing as the trustee of JP Morgan Mortgage Acquisition Trust Series 2006-WMC3, BNY Mellon seeks redress from WMC Mortgage LLC as successor-by-merger to WMC Mortgage Corp., JP Mortgage Acquisition Corp. and JPMorgan Chase Bank, for alleged breaches of contractual…

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image: Reuters

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Anastacia S. Lacombe and Max P. Lacombe vs Deutsche Bank National Trust Company, etc.| FL 1st DCA – Bank’s documents and witness did not prove the bank’s standing to bring the foreclosure action.

Anastacia S. Lacombe and Max P. Lacombe vs Deutsche Bank National Trust Company, etc.| FL 1st DCA – Bank’s documents and witness did not prove the bank’s standing to bring the foreclosure action.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

ANASTACIA S. LACOMBE and
MAX P. LACOMBE
Appellants

v.

DEUTSCHE BANK NATIONAL
TRUST COMPANY, as Trustee
for LONG BEACH MORTGAGE
LOAN TRUST
Appellee

Opinion filed October 14, 2014.
An appeal from the Circuit Court for Duval County.

A. C. Soud, Jr. , Judge.

Austin T. Brown of Parker & DuFresne, P.A., Jacksonville,
for Appellant.

Jeffrey S. York and N. Mark New, II of McGlinchey Stafford, Jacksonville and
Latoya O. Fairclough, Choice Legal Group, P.A., Fort Lauderdale,
for Appellee.

PER CURIAM.
The Lacombes, defendants below,appeal the final judgment of foreclosure against them and in favor of Deutsche Bank National Trust Co., as Trustee for Long Beach Mortgage Loan Trust 2006-2 (“Deutsche Bank”).

Appellants assert that the evidence presented at the bench trial was insufficient to support the trial court’s judgment because Deutsche Bank’s documents and witness did not prove the bank ’s standing to bring the foreclosure action.

We agree and the judgment is thus reversed.

Because the final judgment was based on a bench trial and Appellants challenge the sufficiency of the evidence to support the judgment, the general rule requiring specific contemporaneous objection to preserve the asserted error
for appeal does not apply. Rather, rule 1.530(e), Florida Rules of Civil Procedure allows review of the sufficiency of the evidence despite any deficiencies in the objections made at trial and absence of post – trial motions. Rule 1.530(e) applies to appeals challenging the sufficiency of the evidence in mortgage foreclosure actions after bench tr
ial. See Correa v. U.S. Bank N.A. , 118 So. 3d 952, 954 (Fla. 2d DCA 2013).

Accordingly, Appellants’ challenge to the sufficiency of the evidence is properly before this court.

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Why is Preet Bharara, the ‘scourge of Wall Street’, taking a friendly tone towards mortgage bankers?

Why is Preet Bharara, the ‘scourge of Wall Street’, taking a friendly tone towards mortgage bankers?

Preet Bharara, the prosecutor with a legendary record of convicting insider trading cases, says people should lay off Wall Street for the crisis


The Guardian-

Here’s something you don’t expect to hear from a man who made his reputation by jailing bankers and becoming the “scourge of Wall Street”: ask him if fraud existed during the mortgage crisis and his answer is “the evidence is not there.”

The words come from Preet Bharara, the US attorney for the southern district of New York, who prosecuted more Wall Streeters for insider trading than anyone who came before him. Worth magazine this week named Bharara at the top of its “100 Most Powerful People in Finance”. Bharara seems to like his high profile, and appears to be gunning for an even bigger one: he suggested that the new US attorney general of the United States should share all of the priorities of Bharara’s own office.

In boasting about his record of putting white-collar criminals in jail, Bharara repeated a common – but outdated – Obama Administration line, that the mortgage crisis was not fuelled by fraud.

“This is by reputation and track record the most aggressive office in white-collar crime in the country ever,” Bharara modestly told Worth, “and if we’re not bringing a certain kind of case, it’s because the evidence is not there. Pure and simple”.

[THE GUARDIAN]

Photograph: Seth Wenig/AP

© 2010-14 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.






Posted in STOP FORECLOSURE FRAUD0 Comments

Big Banks Face Another Round of U.S. Charges

Big Banks Face Another Round of U.S. Charges

Article began on the wrong foot. The DOJ has NEVER prepared for any rounds PERIOD.

Lets not forget.. AG Holder plans to leave right at the same time the Statue of Limitations ceased. Coincidence?

NY Times-

The Justice Department is preparing a fresh round of attacks on the world’s biggest banks, again questioning Wall Street’s role in a broad array of financial markets.

With evidence mounting that a number of foreign and American banks colluded to alter the price of foreign currencies, the largest and least regulated financial market, prosecutors are aiming to file charges against at least one bank by the end of the year, according to interviews with lawyers briefed on the matter. Ultimately, several banks are expected to plead guilty.

Interviews with more than a dozen lawyers who spoke on the condition of anonymity to discuss private negotiations open a window onto previously undisclosed aspects of an investigation that is unnerving Wall Street and the defense bar. While cases stemming from the financial crisis were aimed at institutions, prosecutors are planning to eventually indict individual bank employees over currency manipulation, using their instant messages as incriminating evidence.

[NEW YORK TIMES]

© 2010-14 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.






Posted in STOP FORECLOSURE FRAUD1 Comment

NWTC 101

NWTC 101

 

Nationwide Title Clearing, Inc. (NTC) White Paper: Four Ways to Use Property Records to Uncover Hidden Risks & Videos

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Nationwide Title Clearing Assignment Services Video

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THE PEOPLE OF THE STATE OF ILLINOIS V. NATIONWIDE TITLE CLEARING, INC. | FINAL CONSENT DECREE – alleging violated the Consumer Fraud Act and the Uniform Deceptive Trade Practices Act

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Nationwide Title Clearing settles ‘robo-signing’ suit in Illinois for $350K

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Nationwide Title Clearing Company Overview Video

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Attorney General Lisa Madigan files lawsuit against Nationwide Title Clearing (NTC) for filing faulty documents with Illinois county recorders

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O’Brien calls for criminal action against the Big Banks Says they acted like “criminal enterprise”

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New York State Attorney General Eric Schneiderman Probing Lender Processing Services, Nationwide Title Clearing

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MADIGAN ISSUES SUBPOENAS TO LPS, NationWide Title Clearing ; WIDENS ‘ROBOSIGNING’ PROBE

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SHAREHOLDER VERIFIED COMPLAINT | BRAUTIGAM v. RUBIN ‘Citigroup Board, Robo-Signing, Nationwide Title, Derivatives, Breach, Putback’

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From Matt Weidner to Lisa Epstein – Nationwide Title Clearing (NTC) May Find Themselves Like The Law Offices Of David J. Stern…A Company To Stay Away From!

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When Robosigners Attack!

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FL Judge Orders “YouTube Depositions” From Nationwide Title Clearing Taken Down, ACLU Strikes Back!

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NATIONWIDE TITLE CLEARING VIDEO DEPOSITIONS (links removed pending lawsuit)

VIDEO DEPOSITION OF NATIONWIDE TITLE CLEARING BRYAN BLY

SFF EXCLUSIVE: VIDEO DEPOSITION OF NATIONWIDE TITLE CRYSTAL MOORE

VIDEO DEPOSITION OF NATIONWIDE TITLE CLEARING DHURATA DOKO

And FULL DEPOSITION TRANSCRIPT OF NATIONWIDE TITLE CLEARING ERICA LANCE BRYAN BLY

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NOW, There’s Issues With MERS “UNIQUE”, “INVALID” Mortgage Identification Numbers (MIN)

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BLOOMBERG | No Breaks for Robo-signing Computer Stamping Mortgage Documents

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BRYAN BLY: NATIONWIDE TITLE CLEARING By Lynn Szymoniak, Esq.

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FULL DEPOSITION TRANSCRIPT OF NATIONWIDE TITLE CLEARING ERICA LANCE / BRYAN BLY

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False Statements: Bryan Bly, Green Tree Svc, Bill Koch, Law Offices of Marshall Watson, Nationwide Title and PNC Bank

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CRYSTAL MOORE AND BRYAN BLY COLLECTION

Main site: http://www.nwtc.com/ntclink/Home.aspx

Bryan J. Bly Crystal Moore Signatures

Bryan J. Bly Crystal Moore Signatures

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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Ivanov, Ill: Appellate Court | the trial court erred in disregarding defendant’s first two affidavits as self-serving and that defendant has shown that plaintiff could have found him upon due inquiry.

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Ivanov, Ill: Appellate Court | the trial court erred in disregarding defendant’s first two affidavits as self-serving and that defendant has shown that plaintiff could have found him upon due inquiry.

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee,
v.
KONSTANTIN IVANOV, Defendant-Appellant.

No. 1-13-3553.
Appellate Court of Illinois, First District, Fifth Division.

September 26, 2014.
JUSTICE GORDON delivered the judgment of the court, with opinion.

Presiding Justice Palmer and Justice Taylor concurred in the judgment and opinion.

OPINION

JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 Defendant Konstantin Ivanov appeals the trial court’s order confirming the sale of a condominium in a mortgage foreclosure action brought by plaintiff JPMorgan Chase Bank, National Association (the bank). On appeal, defendant claims: (1) that the trial court did not obtain personal jurisdiction over defendant by service by publication because plaintiff failed to meet the requirements of section 2-206(a) of the Illinois Code of Civil Procedure (735 ILCS 5/2-206(a) (West 2010)) and Rule 7.3 of the circuit court of Cook County (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)) and (2) that the trial court failed to properly consider defendant’s affidavits when ruling on his motion to quash service by publication and motion to reconsider. For the following reasons, we reverse.

¶ 2 BACKGROUND

¶ 3 I. Complaint to Foreclose

¶ 4 On June 27, 2007, defendant borrowed $273,000 from the bank, secured by a mortgage on a condominium unit located at 1675 Mill Street Unit #202, Des Plaines, Illinois 60616.

¶ 5 On May 25, 2010, Chase Home Finance, LLC,[1] filed a complaint to foreclose the mortgage against defendant as the mortgagee under section 15-1208 of the Illinois Code of Civil Procedure (735 ILCS 5/15-1208 (West 2010)), alleging that defendant was in default in the amount of $272,802.57 in unpaid principal. Plaintiff also named River Mill Condominium Association and unknown owners and nonrecord claimants as defendants in order to terminate their interest in the mortgaged property.

¶ 6 II. Service by Publication

¶ 7 On February 17, 2010, the trial court entered an order appointing the following private detective agencies certified under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004 (225 ILCS 447 et seq. (West 2010)) as standing special process servers in cases filed by the bank’s attorneys in the mortgage foreclosure section of the chancery division until May 31, 2010: (1) Pro-Vest, Inc., (2) Firefly Legal, Inc., (3) Amicus Professional Legal Services Inc., and (4) United Processing, Inc. On May 25, 2010, plaintiff filed a motion to appoint Pro-Vest, Inc., Firefly Legal, Inc., and United Processing, Inc., as special process servers pursuant to section 2-202 of the Illinois Code of Civil Procedure (735 ILCS 5/2-202 (West 2010)) in the case at bar.

¶ 8 On June 11, 2010, plaintiff filed two affidavits to allow service by publication, alleging that it had tried three times over Memorial Day weekend to serve defendant without success. The record on appeal does not contain a motion by plaintiff moving the trial court to allow service by publication. However, it contains two affidavits to allow service by publication, both of which were filed by plaintiff on June 11, 2010.

¶ 9 A. Attorney’s First Affidavit

¶ 10 The first affidavit was dated June 10, 2010, and entitled “Affidavit to Allow Service by Publication Pursuant to 735 ILCS 5/2-206.”[2] It stated the following:

“[Bridget O'Neill], the undersigned attorney, on oath states as to Defendants:

Konstantin Ivanov

Unknown Owners and Nonrecord Claimants

1. Defendants reside or have gone out of this State, or on due inquiry cannot be found, or are concealed within this State, so that process cannot be served upon them.

2. Diligent inquiry has been made as to the whereabouts of all the aforesaid Defendants.

3. That upon diligent inquiry, the place of residence of the aforesaid Defendants cannot be ascertained and/or their last known place of residence is:

Konstantin Ivanov, 1675 Mill Street Unit #202 Des Plaines, IL 60016

Unknown Owners and Nonrecord Claimants, 1675 Mill Street Unit #202 Des Plaines, IL 60016[.]“

This affidavit did not specify what “diligent inquiry” had been made.

¶ 11 B. Attorney’s Second Affidavit

¶ 12 The second affidavit was also dated June 10, 2010, and entitled “Affidavit to Allow Service by Publication Pursuant to Local Rule 7.3.”[3] It stated the following:

“[Bridget O'Neill], the undersigned attorney, on oath states as to Konstantin Ivanov:

1. Konstantin Ivanov resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon them. Service upon Konstantin Ivanov has been attempted by United Processing, Inc., the Court Appointed Special Process Server (see exhibit B).

2. Diligent inquiry has been made as to the whereabouts of Konstantin Ivanov, (see exhibit A).

3. That upon diligent inquiry, the place of residence of Konstantin Ivanov cannot be ascertained and/or their last known place of residence is: 1675 Mill Street Unit #202 Des Plaines, IL 60016[.]“

This affidavit also did not specify what “diligent inquiry” had been made but it did attach two supporting affidavits as Exhibits A and B.

¶ 13 The first affidavit, or exhibit A, is dated June 4, 2010, and is signed by Corey Fertel, a well-known owner of a process-serving company. Although Fertel signed the affidavit, the affidavit stated that an individual named Matt Cunningham recounted the actions that Fertel took to find defendant. The affidavit stated the following:

“Before me, the undersigned authority, this day, personally appeared, Matt Cunningham, who upon being first duly sworn, upon his/her oath, deposes and says:

`A diligent search and inquiry to discover the name and residence of Konstantin Ivanov was performed by the following acts set forth, as particularly as is known to Corey Fertel, below.’

After diligent search and inquiry by affiant, the residence of the subject person is unknown to affiant.”

However, Fertel searched only for “new addresses or phone numbers” and “new results for the named defendant” in whitepages.com, local and federal prisons, “a private database that utilizes thousands of different public records databases and other resources,” and the “SS Death Index.” (Emphases added.) Fertel also performed the following searches to find “new” results for defendant’s name: national phone directory, hunting licenses, UCC liens, voter registration, aircraft, boaters, and bankruptcies, among others. The following is a portion of the aforementioned list of inquiries performed by Fertel to locate defendant:

“The following searches were done for the defendant:

1. Aircraft- No new results.

2. Bankruptcies- No new results.

3. Judgments- No new results.

4. Liens- No new results.

5. Boaters- No new results.

6. Business Phones- No new results.

7. Concealed Weapons- No new results.

* * *

23. National Security Watch Lists — No new results.”

¶ 14 In addition, the affidavit of Mark Wiebe, a court-appointed special process server, is dated June 3, 2010, and attached as exhibit B to the attorney’s second affidavit. Mark Wiebe of United Processing, Inc., stated that he had been “unable to effect service of the within Mortgage Foreclosure Summons and Complaint to Foreclose Mortgage on Konstantin Ivanov.” The affidavit then provided a table showing that Wiebe visited defendant’s property three times: (1) May 27, 2010, at 11:15 a.m.; (2) May 28, 2010, at 8:35 a.m.; and (3) May 30, 2010, at 9:55 a.m.

¶ 15 We take judicial notice of the fact that these visits occurred on a Thursday, a Friday, and a Sunday over the Memorial Day weekend, and that all visits occurred within the same timeframe, namely, between 8:30 a.m. and 11:30 a.m. in the morning.

¶ 16 On May 27, 2010, Wiebe observed that: “4 story multi unit secured building. Def in bell system ings [sic] disconnected phone. Unit appears to be vacant, will return to confirm.” On May 28, 2010, he observed that: “[u]nit still appears vacant.” On May 30, 2010, he observed that: “[t]his visit confirms to me the unit is vacant.” Below the table, the affidavit stated: “Comments/Prev. Attempts: Unit is vacant, phone is disconnected, one neighbor says he heard he went back to his family in Poland. Pics [sic] attached.” Two photographs were attached: (1) the first showed the interior of the apartment building’s lobby through glass doors and (2) the second showed the exterior of the apartment building.

¶ 17 It is unclear from the “disconnected phone” statement in the affidavit whether that means that the intercom was not connected to a landline or that the intercom handset was not working. Also, the “one neighbor” is not identified by name or address. The affidavit does not indicate whether the “neighbor” lived in the same building.

¶ 18 III. Default

¶ 19 The bank published a notice of the pending action against defendant in the Chicago Daily Law Bulletin on June 17, 2010, June 24, 2010, and July 1, 2010. Almost a year later, on May 23, 2011, it filed a motion for entry of an order of default and for judgment of foreclosure and sale against defendant for failure to appear and answer. On June 23, 2011, the trial court entered an order of default and judgment for foreclosure and sale against defendant.

¶ 20 On August 18, 2011, a notice of sale was mailed to defendant at 1675 Mill Street Unit #202, Des Plaines, Illinois 60616, informing him that a judgment of foreclosure and sale had been entered against him and that the property would be sold at public auction a month later on September 27, 2011. Defendant’s brief on appeal stated that: “[t]his was the first time that [defendant] became aware of the lawsuit.”

¶ 21 We noe that section 15-1502.5 of the Illinois Code of Civil Procedure (735 ILCS 5/15-1502.5 (West 2010)) requires that the mortgagee send the mortgagor notice of a grace period before filing a foreclosure suit. This notice informs mortgagors that their loan is more than 30 days overdue and they have a 30-day grace period to obtain approved housing counseling. 735 ILCS 5/15-1502.5(c) (West 2010). “Until 30 days after mailing the notice *** no legal action shall be instituted under Part 15 of Article XV of the Code of Civil Procedure.” 735 ILCS 5/15-1502.5(d) (West 2010). In the case at bar, the record on appeal contains no information regarding a grace period notice and defendant’s brief on appeal stated that he first learned of the foreclosure action when the notice of sale was mailed to him on August 18, 2011.

¶ 22 IV. Motion to Quash

¶ 23 On October 17, 2011, defendant filed a motion to quash service and to vacate the judgment for foreclosure, claiming that the service made by publication was invalid since defendant resided at the property and was not personally served. In support of his motion, defendant filed two affidavits. The first affidavit, dated October 17, 2011, stated that he had “resided at 1675 Mill Street Unit #202, Des Plaines, Illinois 60616 *** continuously since [he] purchased the condominium in June 2007. Specifically, [he] resided at the Property at all times, on, before and after May 25, 2010.”

¶ 24 Defendant’s second affidavit, dated December 5, 2011, stated that the bank could have served him at the property before or after working hours, during the week, and on weekends; plaintiff would have found the property to be occupied if it had looked because the property contained defendant’s personal belongings and was his primary place of residence; and plaintiff could have asked defendant’s neighbors or the property manager regarding defendant’s residence.

¶ 25 On December 15, 2011, the trial court denied defendant’s motion to quash in a short written order, which does not indicate the trial court’s reasons for denying defendant’s motion to quash but does state that the trial court was “fully advised on the premises.”

¶ 26 V. Motion to Reconsider

¶ 27 On January 13, 2012, defendant filed a motion to reconsider, attaching a third affidavit, dated January 13, 2012, stating that defendant has “not attempted to conceal his whereabouts or leave the state to avoid litigation.” In response to Wiebe’s affidavit, which stated that “one neighbor says he heard [defendant] went back to his family in Poland,” defendant’s third affidavit stated that he is “Bulgarian, not Polish. [He has] never resided in Poland, nor does any of [his] family reside in Poland.” Moreover, the affidavit stated that “at all times on, before, and after May 25, 2010,” the property address was listed as defendant’s address on his Illinois driver’s license, bank accounts, paychecks from his employer, and his active Comcast cable and internet account. Accordingly, defendant attached copies of his driver’s license, November 2011 earnings statement, November 2011 Comcast internet bill, and an undated blank check listing the property as his address.

¶ 28 On March 28, 2012, the bank filed a motion for the entry of an order approving the report of sale and distribution pursuant to section 15-1508 of the Illinois Code of Civil Procedure (735 ILCS 5/15-1508 (West 2010)).

¶ 29 On April 10, 2012, the bank filed a response to defendant’s motion to reconsider, claiming that defendant’s motion to reconsider “fails to establish any of the three bases for the granting of a motion to reconsider”: (1) newly discovered evidence that was unavailable at the time of the motion to quash, (2) changes in the law, or (3) errors in the court’s application of the law.

¶ 30 On May 24, 2012, defendant filed a reply in support of his motion to reconsider, claiming that (1) the trial court erroneously placed an unlawful burden on defendant, requiring him to show that he resided at the property; (2) the bank failed to comply with the statutory prerequisites for service by publication; and (3) the trial court, in ruling on defendant’s motion to reconsider, should consider a new case, Deutsche Bank National Trust Co. v. Brewer, 2012 IL App (1st) 111213, which held that an affidavit was insufficient to justify service by publication because it failed to identify the individuals who attempted service on the defendant. Brewer, 2012 IL App (1st) 111213, ¶ 21.

¶ 31 On July 19, 2012, the trial court denied the motion to reconsider in a written order, finding that “plaintiff’s service of process affidavit is not inconsistent with Cook County, Ill. Cir. Ct. R. 7.3″ and current case law. The trial court stated that: “[Defendant's] only proof offered to support his position” challenging the bank’s service by publication in defendant’s motion to quash “consisted of two self-serving affidavits regarding his place of residence.” The trial court did not mention either defendant’s third affidavit or the documents, which were attached to his motion to reconsider.

¶ 32 On March 28, 2012, the bank filed a motion for an entry of order approving the report of sale and distribution and for an order of possession against defendant and River Mill Condominium Association. The bank was the highest bidder at the public auction, which occurred on March 9, 2012, and purchased the property for $113,600. On October 10, 2013, the trial court approved the sale and entered an order of possession. This appeal follows.

¶ 33 ANALYSIS

¶ 34 Defendant appeals the trial court’s order confirming the sale of property in a mortgage foreclosure action brought by the bank. On appeal, defendant claims: (1) the trial court did not obtain personal jurisdiction over defendant by service by publication because plaintiff failed to meet the requirements of section 2-206(a) of the Illinois Code of Civil Procedure (735 ILCS 5/2-206(a) (West 2010)) and Rule 7.3 of the circuit court of Cook County (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)) and (2) the trial court failed to properly consider defendant’s affidavits when ruling on his motion to quash service by publication and motion to reconsider. For the following reasons, we reverse.

¶ 35 I. Jurisdiction

¶ 36 As a preliminary matter, we consider the bank’s argument that this court lacks jurisdiction to review the trial court’s denial of defendant’s motion to quash service. The bank argues that since defendant’s notice of appeal states that he is appealing the trial court’s judgment dated October 10, 2013, this court’s jurisdiction is limited to reviewing only that judgment. As noted, October 10, 2013, is the date that the trial court approved the sale of the property and entered an order of possession, and not the date the trial court denied defendant’s motion to quash service.

¶ 37 Illinois Supreme Court Rule 303 (eff. June 4, 2008) states that a notice of appeal “shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court.” Filing a notice of appeal “`is the jurisdictional step which initiates appellate review.’” People v. Smith, 228 Ill. 2d 95, 104 (2008) (quoting Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7 (1998)). “Unless there is a properly filed notice of appeal, the appellate court lacks jurisdiction over the matter and is obliged to dismiss the appeal.” General Motors Corp. v. Pappas, 242 Ill. 2d 163, 176 (2011) (citing Smith, 182 Ill. 2d at 104). “A notice of appeal confers jurisdiction on a court of review to consider only the judgments or parts of judgments specified in the notice of appeal.” Pappas, 242 Ill. 2d at 176 (citing People v. Lewis, 234 Ill. 2d 32, 37 (2009)).

¶ 38 The purpose of a notice of appeal “`is to inform the prevailing party that the other party seeks review of the trial court’s decision.’” Pappas, 242 Ill. 2d at 176 (quoting Lewis, 234 Ill. 2d at 37). “The notice of appeal `should be considered as a whole and will be deemed sufficient to confer jurisdiction on an appellate court when it fairly and adequately sets out the judgment complained of and the relief sought, thus advising the successful litigant of the nature of the appeal.’” Pappas, 242 Ill. 2d at 176 (quoting Smith, 228 Ill. 2d at 105).

¶ 39 “Although a notice is jurisdictional, our supreme court has held that we must construe a notice liberally.” Filliung v. Adams, 387 Ill. App. 3d 40, 49 (2008) (citing Smith, 228 Ill. 2d at 104). “Our supreme court has held that a reviewing court should find that a defect is not fatal to the appeal, if: (1) a notice’s defect is a defect in form rather than in substance; and (2) the defect has not prejudiced the opposing party.” Filliung, 387 Ill. App. 3d at 49 (citing Smith, 228 Ill. 2d at 105).

¶ 40 “In addition to the exception for form defects, there is also an exception for rulings that were necessary steps to the judgment named in the notice [of appeal].” Filliung, 387 Ill. App. 3d at 49 (citing Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 436 (1979)). “In Burtell, our supreme court held that an unspecified judgment was reviewable if the specified judgment `directly relates back to [it].’” Filliung, 387 Ill. App. 3d at 49 (quoting Burtell, 76 Ill. 2d at 434).

¶ 41 Defendant’s notice of appeal is sufficient to confer jurisdiction on this court to review the trial court’s denial of defendant’s motion to quash service of process. While the notice of appeal states that the date of the judgment appealed is October 10, 2013, the notice of appeal also states that defendant is seeking the “reversal of entry of order confirming sale, reversal of judgment for foreclosure, and reversal of order denying motion to quash service.” (Emphasis added.) Moreover, the denial of defendant’s motion to quash service of process was a necessary step for the trial court’s October 10, 2013, judgment approving the sale of defendant’s property.

¶ 42 As a result, the notice of appeal adequately set out the judgments that defendant appeals and fairly informed the bank of the nature of the appeal.

¶ 43 II. Service By Publication

¶ 44 Defendant argues that the trial court did not obtain personal jurisdiction over defendant because the bank failed to meet the statutory requirements for service by publication under section 2-206 of the Code of Civil Procedure (735 ILCS 5/2-206 (West 2010)) and local rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)). The bank argues that it met the statutory requirements for service by publication.

¶ 45 We review de novo whether the trial court obtained personal jurisdiction. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17 (citing In re Detention of Hardin, 238 Ill. 2d 33, 39 (2010)). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 46 Where “`a court lacks *** personal jurisdiction over the parties, any order entered in the matter is void ab initio and, thus, may be attacked at any time.’” In re Dar. C., 2011 IL 111083, ¶60 (quoting In re M.W., 232 Ill. 2d 408, 414 (2009)); see also Johnston v. City of Bloomington, 77 Ill. 2d 108, 112 (1979) (where a court lacks personal jurisdiction, “the proceedings are a nullity and no rights are created by them and they may be declared void when collaterally attacked”). “When a defendant has not been served with process as required by law, the court has no jurisdiction over that defendant and a default judgment entered against him or her is void.” Equity Residential Properties Management Corp. v. Nasolo, 364 Ill. App. 3d 26, 32 (2006) (citing First Federal Savings & Loan Ass’n of Chicago v. Brown, 74 Ill. App. 3d 901, 905 (1979), and Bank of Ravenswood v. King, 70 Ill. App. 3d 908, 923 (1979)).

¶ 47 “Personal jurisdiction may be established either by service of process in accordance with statutory requirements or by a party’s voluntary submission to the court’s jurisdiction.” BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 18 (citing In re Marriage of Verdung, 126 Ill. 2d 542, 547 (1989)). “Providing effective service is a means of protecting an individual’s right to due process by allowing for proper notification of interested individuals and an opportunity to be heard.” In re Dar. C., 2011 IL 111083, ¶ 61 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)). “`Every defendant in an action filed against him in this State is entitled to receive the best possible notice of the pending suit and it is only where personal service of summons cannot be had, that substituted or constructive service may be permitted.’” Nasolo, 364 Ill. App. 3d at 31 (quoting Bell Federal Savings & Loan Ass’n v. Horton, 59 Ill. App. 3d 923, 927 (1978)).

¶ 48 Personal jurisdiction acquired by publication is only allowed in limited cases where personal service could not be achieved, and then, only after strict compliance with statutory requirements. Horton, 59 Ill. App. 3d at 926-27. Section 2-206 of the Code of Civil Procedure allows service by publication in actions affecting property. 735 ILCS 5/2-206 (West 2010). Under section 2-206, the plaintiff must file an affidavit “showing” that the defendant “on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained[.]” 735 ILCS 5/2-206(a) (West 2010). The Cook County circuit court has adopted a rule that elaborates on the requirement for the affidavit. Rule 7.3 provides in relevant part as follows:

“Pursuant to 735 ILCS 5/2-206(a), due inquiry shall be made to find the defendant(s) prior to service of summons by publication. In mortgage foreclosure cases, all affidavits for service of summons by publication must be accompanied by a sworn affidavit by the individual(s) making such `due inquiry’ setting forth with particularity the action taken to demonstrate an honest and well directed effort to ascertain the whereabouts of the defendant(s) by inquiry as full as circumstances permit prior to placing any service of summons by publication.” Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).

¶ 49 “Our courts have determined that these statutory prerequisites are not intended as pro forma or useless phrases requiring mere perfunctory performance, but, on the contrary, require an honest and well-directed effort to ascertain the whereabouts of a defendant by inquiry as full as circumstances permit.” Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 476 (2006) (citing Graham v. O’Connor, 350 Ill. 36, 41 (1932), and City of Chicago v. Leakas, 6 Ill. App. 3d 20, 27 (1972)). “Where the efforts to comply with these statutory provisions have been casual, routine, or spiritless, service by publication is not justified.” Bank of New York, 369 Ill. App. 3d at 476 (citing Home State Savings Ass’n v. Powell, 73 Ill. App. 3d 915, 917 (1979), and Bell Federal Savings & Loan Ass’n, 59 Ill. App. 3d at 927).

¶ 50 In the case at bar, the bank did not demonstrate a well-directed effort to ascertain the whereabouts of defendant by inquiry as full as the circumstances permitted. First, plaintiff’s attempts to serve defendant at his residence were “casual, routine, and spiritless.” Bank of New York, 369 Ill. App. 3d at 476. According to Wiebe’s affidavit, plaintiff attempted to serve defendant at his residence three times: (1) Thursday, May 27, 2010, at 11:15 a.m.; (2) Friday, May 28, 2010, at 8:35 a.m.; and (3) Sunday, May 30, 2010, at 9:55 a.m. Each attempt took place within four days and during the same three-hour timeframe on a Memorial Day weekend. The bank neither attempted to serve defendant at another time of the day when defendant might more likely be at home nor demonstrated any attempt to ascertain defendant’s work hours. The bank made no attempt to contact the condominium association to find defendant’s whereabouts, or attempted to ascertain his employment from their records or from reliable others. Each attempt of service was made during traditional working hours or during a holiday weekend. While the bank attempted to serve defendant once on a weekend, plaintiff made this attempt on a holiday weekend when travel is not uncommon. As a result, we cannot say that the three attempts to serve defendant at those times and on those dates demonstrate a well-directed effort to ascertain the whereabouts of defendant by inquiry “as full as the circumstances permit.” Bank of New York, 369 Ill. App. 3d at 476.

¶ 51 Moreover, Wiebe’s affidavit failed to demonstrate that there was no reason to return to defendant’s residence to attempt service again on a different day and at a different time. After the first attempt, Wiebe noted that defendant’s residence was located in a “4 story multi unit secured building. Def in bell system ings [sic] disconnected phone,” then noted that the “unit appears to be vacant.” After the second attempt, Wiebe noted that “this visit confirms to me the unit is vacant”; however, he did not state any facts that would lead to this conclusion. Finally, after the third visit, Wiebe stated that defendant’s residence “is vacant, phone is disconnected, one neighbor says he heard he went back to his family in Poland.” Wiebe then attached two pictures of the building where defendant’s condo is located to the affidavit: (1) the first showed the interior of the condo building’s lobby through glass doors and (2) the second showed the exterior of the building.

¶ 52 We cannot say that a vague statement about a “disconnected phone” demonstrates that defendant had vacated his residence and could not be served in person with further attempts. The statement is not clear whether it is a mobile phone, a landline, or one connected to an intercom system in defendant’s building. Even if the statement was clear, we question how a disconnected landline demonstrates that defendant has vacated his residence. Inherently, mobile phones are not tied to one location, and intercom systems can malfunction. Moreover, we acknowledge defendant’s observation that “landline telephone usage has significantly decreased in the modern cell-phone era.”

¶ 53 We also cannot say that a statement from an unidentified neighbor that “he heard [defendant] went back to his family in Poland” demonstrates that defendant vacated his residence and that the bank made inquiry to his whereabouts as full as the circumstances permitted. Not only was the “neighbor” unidentified, but no address was provided for him or her so we do not know how far away he or she lived from defendant’s building or whether the neighbor lived in the building. The neighbor’s knowledge of defendant’s whereabouts was admittedly secondhand, and there is no indication in the record that Wiebe or the bank made any attempts to corroborate the neighbor’s statement or confirm that defendant’s family even lives in Poland.

¶ 54 Neither do the pictures attached to the affidavit demonstrate that defendant had vacated his residence. Photographs of a multiunit building’s lobby and exterior do not demonstrate an inquiry into defendant’s whereabouts as full as the circumstances permitted.

¶ 55 We acknowledge the bank’s extensive records search as demonstrated by the Fertel affidavit, and that the law does not require a specific number of attempts or unduly exhaustive efforts to locate the whereabouts of a defendant. However, the bank searched only for “new” addresses, thereby confirming defendant’s claim that he has not lived anywhere else for years.

¶ 56 Accordingly, service by publication was not justified, the trial court lacked personal jurisdiction over the defendant, and any order entered by the trial court is void ab initio.

¶ 57 III. Defendant’s Burden

¶ 58 The bank argues that only after the defendant “file[s] an affidavit showing that upon due inquiry he could have been found *** must the plaintiff show it conducted a due inquiry.” In support of this argument, plaintiff cites Household Finance Corp., III v. Volpert, 227 Ill. App. 3d 453, 455 (1992), and First Bank & Trust Co. of O’Fallon, Illinois v. King, 311 Ill. App. 3d 1053, 1057 (2000).

¶ 59 We do not find this argument persuasive. First, section 2-206 plainly requires the bank to file an affidavit “showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found” before service by publication is justified. 735 ILCS 5/2-206(a) (West 2010). Moreover, the statement the bank cites from Volpert concerns when a plaintiff must produce evidence to establish due inquiry. Volpert, Ill. App. 3d at 455 (“[A] defendant may challenge such affidavit by filing an affidavit showing that upon due inquiry he could have been found. [Citation] Upon defendant’s challenge, plaintiff must produce evidence establishing due inquiry.”). Finally, King is easily distinguishable from the case at bar as the defendant in King failed to file any affidavit showing that upon due inquiry she could have been found. King, 311 Ill. App. 3d at 1057. Although a defendant is not required to file affidavits in order for the trial court to find a plaintiff’s affidavits insufficient, defendant in the present case did file affidavits showing that upon due inquiry he could have been found. Indeed, “[a] defendant may challenge a plaintiff’s section 2-206(a) affidavit by filing an affidavit showing that upon due inquiry, he could have been found.” Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 476 (2006).

¶ 60 VI. Defendant’s Affidavits

¶ 61 Even if a defendant must “file an affidavit showing that upon due inquiry he could have been found *** before the plaintiff [must] show it conducted a due inquiry,” the defendant in the present case met this burden, and thus, the trial court erred in finding that all three of defendant’s affidavits were self-serving.

¶ 62 We evaluate the trial court’s decision as to the affidavits de novo. People ex rel. Waller v. Harrison, 348 Ill. App. 3d 976, 985 (2004) (“When the trial court rules on the legal sufficiency of an affidavit, we review de novo the trial court’s ruling.”). We are not persuaded by the bank’s claim that this court should employ the manifest weight of the evidence standard. Deutsche Bank National Trust Co., 2012 IL App (1st) 111213, ¶ 17.

¶ 63 “Findings of fact are reviewed under the manifest weight of the evidence standard.” Cyclonaire Corp. v. ISG Riverdale, Inc., 378 Ill. App. 3d 554, 569 (2007). “This deferential standard is grounded in the reality that the circuit court is in a superior position to determine and weigh the credibility of the witnesses, observe the witnesses’ demeanor, and resolve conflicts in their testimony.” People v. McDonough, 239 Ill. 2d 260, 266 (2010).

¶ 64 In the case at bar, we are reviewing only documentary evidence. “[W]here the evidence before a trial court consists of depositions, transcripts, or evidence otherwise documentary in nature, a reviewing court is not bound by the trial court’s findings and may review the record de novo.” Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453 (2009); People ex rel. Waller, 348 Ill. App. 3d at 985 (“Generally, the manifest weight of the evidence standard of review applies if the trial court heard courtroom testimony, but a de novo standard applies when the trial court heard no testimony and ruled solely on the basis of documentary evidence.”). We are just as competent to review the documentary evidence as the trial court. Addison Insurance Co., 232 Ill. 2d at 453 (“Without having heard live testimony, the trial court was in no superior position than any reviewing court to make findings, and so a more deferential standard of review is not warranted.”).

¶ 65 In addition, appellate courts review legal questions de novo (Ogden Chrysler Plymouth, Inc. v. Bower, 348 Ill. App. 3d 944, 951 (2004)) and the sufficiency of an affidavit is a legal question. Roe v. Jewish Children’s Bureau, 339 Ill. App. 3d 119, 128 (2003) (“[A] court’s determination of whether an affidavit offered in connection with a motion for summary judgment complies with Rule 191 is a question of law subject to de novo review.”). Therefore, our standard of review on appeal is de novo, which means that we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 66 A. Defendant’s First Affidavit

¶ 67 Defendant disputes the trial court’s characterization of his first affidavit as “self-serving,” claiming that it showed that the bank could have found him upon due inquiry. See Bank of New York, 369 Ill. App. 3d at 476.

¶ 68 Illinois Supreme Court Rule 191(a) provides in relevant part that “affidavits submitted in connection with a motion to contest jurisdiction over the person *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all documents upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence[.]” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).

¶ 69 In Young v. Chicago Federal Savings & Loan Ass’n, 180 Ill. App. 3d 280, 282-83 (1989), the defendant savings and loan association claimed that the plaintiff assignee failed to establish an assignment of a title policy where the savings and loan association’s vice president mailed a copy of the title policy to the plaintiff. In support of the defendant’s motion for summary judgment, the defendant attached an affidavit, which the appellate court found to be self-serving. Young, 180 Ill. App. 3d at 284. The affidavit stated that the savings and loan association’s vice president “sent the Title Policy in question *** for informational purposes only.” Young, 180 Ill. App. 3d at 284. The appellate court found that the affidavit “fail[ed] to set forth the facts surrounding the assignment transaction. [It] merely state[d] that the policy was sent for informational purposes, which is a self-serving conclusion.” Young, 180 Ill. App. 3d at 284. The appellate court also noted that “[d]efendant’s claim that the policy was sent for informational purposes only is not supported by the record.” Young, 180 Ill. App. 3d at 284.

¶ 70 In contrast, in Doria v. Village of Downers Grove, 397 Ill. App. 3d at 752, 755 (2009), the plaintiff argued on appeal that the affidavit of the defendant’s traffic engineering manager violated Supreme Court Rule 191. The appellate court held that the following statements from the traffic engineering manger’s affidavit established “his conclusion that the gravel lot was not intended for parking” and, therefore, the affidavit was in compliance with Supreme Court Rule 191:

“he was the traffic engineering manager for [the] defendant and that his job duties included `determining the intended use of various property’ within Downers Grove ***. [He] noted that the lot in question in this case had been unpaved for `the past 20 years’ and that defendant had never placed parking meters, `public parking’ signs, concrete parking bumpers, or painted yellow parking lines in the lot.” Doria, 397 Ill. App. 3d at 754-56.

The appellate court stated that “`[i]f, from the document as a whole, it appears that the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial, Rule 191 is satisfied.’” Doria, 397 Ill. App. 3d at 756 (quoting Kugler v. Southmark Realty, 309 Ill. App. 3d 790, 795 (1999)).

¶ 71 Moreover, in Prudential Property & Casualty Insurance Co. v. Dickerson, 202 Ill. App. 3d 180, 183 (1990), the defendant filed a motion to quash service of process and an affidavit in support. “In the affidavit, [the defendant] denied that he resided at the address where the service was made and averred that at the time of the alleged service, he resided at [a different address].” Dickerson, 202 Ill. App. 3d at 185. The appellate court found that “the appellant placed the validity of the substituted service in issue through his affidavit. Where such an affidavit stands unrebutted or uncontradicted, as here, it serves as a proper basis for quashing service of process.” Dickerson, 202 Ill. App. 3d at 185.

¶ 72 In reviewing defendant’s first affidavit, dated October 17, 2011, we conclude that it is more like the affidavit in Doria than the affidavit in Young. In the case at bar, defendant’s first affidavit stated that he “resided at 1675 Mill Street Unit #202, Des Plaines, Illinois 60616 *** continuously since [he] purchased the condominium in June 2007. Specifically, [he] resided at the Property at all times, on, before and after May 25, 2010.” In Doria, the appellate court stated that “`[i]f, from the document as a whole, it appears that the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial, Rule 191 is satisfied.’” Doria, 397 Ill. App. 3d at 756 (quoting Kugler, 309 Ill. App. 3d at 795). Accordingly, it is clear that defendant has personal knowledge of his own residence and he could competently testify to his residence at trial. Although the traffic engineering manager’s affidavit provided more detail than defendant’s affidavit, more information was needed to show that the traffic engineering manager had personal knowledge that the gravel lot was not intended for parking. Thus, it is clear that defendant’s affidavit is based on his own personal knowledge of his residence, which he can competently testify to in trial. Burks Drywall, Inc. v. Washington Bank & Trust Co., 110 Ill. App. 3d 569, 576 (1982) (“[R]ule [191] is satisfied if from the document as a whole it appears that the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial.”).

¶ 73 In contrast, the case at bar is distinct from Young where “[d]efendant’s claim that the policy was sent for informational purposes only is not supported by the record.” Young, 180 Ill. App. 3d at 284. Here, the record does not contradict defendant’s claim that he resided at the property since the process server’s attempts occurred over the Memorial Day weekend and within the same timeframe, namely, between 8:30 a.m. and 11:30 a.m. In addition, Fertel claims that he searched only for “new” addresses for defendant and could not find any, thereby corroborating defendant’s affidavit that there was no other address for him.

¶ 74 Furthermore, it was not necessary for defendant to attach additional evidence to his affidavit to confirm his residence. In Dickerson, the appellant’s affidavit “denied that he resided at the address where the service was made and averred that at the time of the alleged service, he resided at [a different address].” Dickerson, 202 Ill. App. 3d at 185. The appellate court found his affidavit to be a “proper basis for quashing service of process” because it “[stood] unrebutted or uncontradicted.” Dickerson, 202 Ill. App. 3d at 185. Similarly, defendant’s first affidavit stated that he resided continuously at the property when the process server attempted to serve him. In addition, the bank did not file an affidavit to contradict defendant’s affidavits.

¶ 75 Thus, it was error for the trial court to disregard defendant’s first affidavit as self-serving.

¶ 76 B. Defendant’s Second Affidavit

¶ 77 Defendant also disputes the trial court’s characterization of his second affidavit as “self-serving.” See Bank of New York, 369 Ill. App. 3d at 476. In reviewing defendant’s second affidavit, we also conclude that it is more like the affidavit in Doria than the affidavit in Young. For instance, in Doria, the traffic engineering manager stated that “he was the traffic engineering manager for [the] defendant and that his job duties included `determining the intended use of various property’ within Downers Grove *** [He] noted that the lot in question in this case had been unpaved for `the past 20 years’ and that defendant had never placed parking meters, `public parking’ signs, concrete parking bumpers, or painted yellow parking lines in the lot.” Doria, 397 Ill. App. 3d at 754.

¶ 78 Similarly, defendant’s second affidavit, dated December 5, 2011, made detailed statements to confirm his residence. For example, defendant stated that the process server could have served him at the property before or after working hours, during the week, and on weekends and that the process server would have found the property to be occupied if he had looked inside because the property contained defendant’s personal belongings and was his primary place of residence. Moreover, defendant specifically excluded holidays from the list of times he could have been found at the property. In addition, defendant’s statement, that plaintiff would have found the property occupied if it had looked inside because it contained his personal belongings and was his primary place of residence, is a statement that defendant has personal knowledge of and can reasonably testify to during trial. Doria, 397 Ill. App. 3d at 756.

¶ 79 Unlike the affidavit in Young that provided no factual information (180 Ill. App. 3d at 284), defendant’s second affidavit provided detailed information that satisfied Supreme Court Rule 191. Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013) (“affidavits *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based[.]“). Thus, the trial court erroneously disregarded defendant’s second affidavit as self-serving.

¶ 80 We need not consider defendant’s third affidavit on this appeal, since we conclude that the trial court erred in disregarding defendant’s first two affidavits as self-serving and that defendant has shown that plaintiff could have found him upon due inquiry.

¶ 81 CONCLUSION

¶ 82 In sum, (1) defendant’s notice of appeal adequately sets out that it appeals the trial court’s denial of defendant’s motion to quash service by publication; (2) the trial court failed to obtain personal jurisdiction over defendant because plaintiff failed to meet the statutory prerequisites for service by publication under section 2-206; and (3) although defendant had the burden of showing he could have been found upon due inquiry, defendant met this burden and the trial court erred in disregarding defendant’s affidavits, and service is quashed.

¶ 83 Reversed and remanded.

[1] On May 23, 2011, Chase Home Finance filed a motion to substitute JPMorgan Chase Bank, National Association, as plaintiff, stating that “[s]ubsequent to filing the complaint, [Chase Home Finance] merged into JPMorgan Chase Bank, National Association.” On June 23, 2011, the trial court entered an order substituting JP Morgan Chase Bank, National Association, as party plaintiff.

[2] Section 2-206(a) of the Illinois Code of Civil Procedure provides that “plaintiff or his or her attorney shall file *** an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending *** The clerk shall also, within 10 days of the first publication of the notice, send a copy thereof by mail, addressed to each defendant whose place of residence is stated in such affidavit.” 735 ILCS 5/2-206(a) (West 2010).

[3] Rule 7.3 of the circuit court of Cook County states that “[p]ursuant to 735 ILCS 5/2-206(a), due inquiry shall be made to find the defendant(s) prior to service of summons by publication. In mortgage foreclosure cases, all affidavits for service of summons by publication must be accompanied by a sworn affidavit by the individual(s) making such “due inquiry” setting forth with particularity the action taken to demonstrate an honest and well directed effort to ascertain the whereabouts of the defendant(s) by inquiry as full as circumstances permit prior to placing any service of summons by publication.” Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).

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COMPLAINT | MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS v THE BANK OF NEW YORK MELLON et al | $100+ Million Dollar Suit Against Big Banks Due to MERS System

COMPLAINT | MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS v THE BANK OF NEW YORK MELLON et al | $100+ Million Dollar Suit Against Big Banks Due to MERS System

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MONTGOMERY COUNTY, PENNSYLVANIA,
RECORDER OF DEEDS, by and through
NANCY J. BECKER, in her official capacity as
the Recorder of Deeds of Montgomery County,
Pennsylvania, on its own behalf and on behalf
of all others similarly situated,
Plaintiff,

vs.

THE BANK OF NEW YORK MELLON, THE
BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., CITIBANK, N.A., DEUTSCHE
BANK NATIONAL TRUST COMPANY,
DEUTSCHE BANK TRUST COMPANY
AMERICAS, HSBC BANK USA, N.A.,
JPMORGAN CHASE BANK, N.A., and WELLS
FARGO BANK, N.A.,
Defendants.

I. NATURE OF THE ACTION

1. The Montgomery County, Pennsylvania, Recorder of Deeds, by and through
Nancy J. Becker, the Montgomery County Recorder of Deeds, brings this action on its own
behalf and on behalf of a class of all other similarly situated Pennsylvania County Recorders of
Deeds (collectively, the “Recorders” or the “Class”) against The Bank of New York Mellon, The
Bank of New York Mellon Trust Company, N.A., Citibank N.A., Deutsche Bank National Trust
Company, Deutsche Bank Trust Company Americas, HSBC Bank, N.A., JPMorgan Chase N.A.,
and Wells Fargo Bank, N.A. (“Defendants”) to remedy Defendants’ failures to properly and
timely record mortgage assignments as required by Pennsylvania law.

2. Defendants have been among the most active participants in the mortgage-backed
securities (“MBS”) industry, including as trustees for numerous MBS trusts into which the
securitized mortgage loans are ultimately conveyed. In a securitization, a mortgage loan typically
is transferred multiple times before it is conveyed to the trustee on behalf of the MBS trust. Each
of the Defendants has engaged in transfers of mortgage loans secured by real property located in
Montgomery County and throughout Pennsylvania,

3. Each of the Defendants is also a member of, and participates in, the “MERS
System,” a private, members-only electronic registry for recording and tracking transfers of
mortgage loans without recording mortgage assignments in public land records offices.

4. In Montgomery County, Pa. v. MERSCORP, Inc., l1-CV-6968, 2014 WL
2957494 (E.D. Pa. Jun. 30,2014), this Court, per the Honorable 1. Curtis Joyner, entered a
declaratory judgment in Plaintiffs favor, finding that the failure to create and record mortgage
assignments evincing the transfers of promissory notes secured by mortgages on Pennsylvania
real estate, under the MERS System and otherwise, violates Pennsylvania recording statutes,
including 21 P.S. §§ 351,444 and 623-1.

5. Each of the Defendants has systematically failed to create and timely record mortgage
assignments in connection with transfers of promissory notes secured by mortgages on Pennsylvania
real estate, both when operating within the MERS System and otherwise. These failures to record
mortgage assignments have damaged the integrity of Pennsylvania’s public land records by
creating gaps in the chain of title and creating confusion amongst property owners and others
about the identity of the owners of their mortgages, and have wrongfully deprived the
Montgomery County Recorder of Deeds and all of the other Pennsylvania Recorders of millions
of dollars in recording fees, in violation of21 P.S. §§ 351,444 and 623-1 (together, the
“Pennsylvania Recording Statutes”). Plaintiff seeks an award of damages for these violations, to quiet
title on all of the adversely affected Pennsylvania properties by requiring Defendants to record the
missing mortgage assignments and pay the related recording fees, restitution for Defendants’ unjust
enrichment, and for declaratory and permanent injunctive relief

[...]

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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Blank | Ohio Appeals Court – question of fact remains as to whether appellee complied with the notice provisions contained in the mortgage

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Blank | Ohio Appeals Court – question of fact remains as to whether appellee complied with the notice provisions contained in the mortgage

2014-Ohio-4135

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee,
v.
LOIS M. BLANK, et al., Defendant-Appellant.

No. 2013-A-0060.
Court of Appeals of Ohio, Eleventh District, Ashtabula County.
September 22, 2014.
Susana Lykins and Bill L. Purtell, Lerner, Sampson & Rothfuss, 120 East Fourth Street, Suite 800, P.O. Box 5480, Cincinnati, OH 45201-5480 (For Plaintiff-Appellee).

Bruce M. Broyles, 5815 Market Street, Suite 2, Youngstown, OH 44512 (For Defendant-Appellant).

OPINION

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Lois M. Blank, appeals the September 9, 2013 judgment of the Ashtabula County Court of Common Pleas granting summary judgment and issuing a decree of foreclosure in favor of appellee, JPMorgan Chase Bank, National Association. For the reasons that follow, we reverse and remand to the trial court.

{¶2} On February 25, 2008, appellant signed a promissory note payable to Chase Bank USA, N.A in the amount of $382,500. The same day, appellant granted a mortgage in the same amount to Chase Bank USA, N.A. on the property at 3471 Lake Road in Conneaut, Ohio. The mortgage was recorded on February 29, 2008, and was later assigned by Chase Bank USA, N.A. to appellee, which duly recorded the assignment on June 25, 2012.

{¶3} According to appellee, on December 10, 2010, an acceleration warning was mailed, “return service requested,” to appellant. The warning informed appellant that she was in default for her failure to make the required monthly payments on her loan, beginning with the payment due August 1, 2009. The warning also indicated the total amount past due and payable.

{¶4} On June 28, 2012, appellee brought a complaint in foreclosure, alleging that appellant was in default under the terms of the note and that she owed the sum of $379,754.18. Attached to the complaint were copies of the note and mortgage. On August 3, 2012, appellant filed her answer, which included five affirmative defenses.

{¶5} On September 12, 2012, appellee filed a motion for summary judgment, arguing that appellant’s affirmative defenses were “insufficient to comply with the Civil Rules’ requirement of notice pleading.” Additionally, appellee’s motion asserted that appellant failed to set forth any specific facts that demonstrated a genuine issue of material fact for trial.

{¶6} On January 28, 2012, appellant filed a response to appellee’s motion for summary judgment. Attached to appellant’s response was an affidavit in which appellant averred that she never received any notice of her default pursuant to the terms of the promissory note and mortgage either by regular mail, certified mail, or personal delivery.

{¶7} On March 11, 2013, appellee filed a reply in support of its motion for summary judgment. In its reply, appellee asserted that appellant’s affidavit attached to her response was unexecuted and that appellee had not received an executed copy. As a result, appellee argued the trial court could not rely on “[a]ppellant’s unexecuted Affidavit” and that summary judgment was proper.

{¶8} On September 9, 2013, the trial court granted appellee’s motion for summary judgment. In a separate judgment entry, also dated September 9, 2013, the trial court filed an “entry granting summary judgment and decree in foreclosure and reformation of mortgage.”

{¶9} Appellant timely appeals the trial court’s granting of summary judgment and decree in foreclosure in favor of appellee. Appellee chose not to file a merit brief.

{¶10} Appellant sets forth one assignment of error, which states:

{¶11} “The trial court erred in granting summary judgment to Appellee when there were genuine issues of material fact still in dispute.”

{¶12} Under her sole assignment of error, appellant frames three sub-issues for our review. First, appellant contends that “[a]ppellee failed to fulfill a condition precedent to the acceleration of the debt and the filing of the foreclosure complaint.” Second, appellant asserts that “[t]he trial court erred in finding that Appellee had standing to file the foreclosure * * *.” Third, appellant argues that the trial court erred in not considering her affidavit, “as it was not a prohibited `self-serving’ affidavit.”

{¶13} We review a trial court’s decision on a motion for summary judgment de novo. Fed. Home Loan Mtge. Corp. v. Zuga, 11th Dist. Trumbull No. 2012-T-0038, 2013-Ohio-2838, ¶13. Under Civ.R. 56(C), summary judgment is proper if:

(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.

Id. at ¶10, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

{¶14} The moving party bears the initial burden to demonstrate from the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, that there is no genuine issue of material fact to be resolved in the case. Id. at ¶12. 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 it; (2) if the movant 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. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶40-45. “If this initial burden is met, the nonmoving party then bears the reciprocal burden to set forth specific facts which prove there remains a genuine issue to be litigated, pursuant to Civ.R. 56(E).” Zuga, supra, at ¶12.

{¶15} Appellant’s three sub-issues will be considered out of order. In her second sub-issue presented for review, appellant asserts that summary judgment was improper, as “[t]he trial court erred in finding that appellee had standing to file the foreclosure complaint in light of the undated allonge that was not attached to the complaint and an assignment of mortgage without a transfer of the underlying debt.”

{¶16} A plaintiff in a foreclosure action must have standing at the time it files the complaint in order to properly invoke the jurisdiction of the trial court. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶41-42. “It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action.” Id. at ¶22, quoting State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176, 179 (1973). A party’s standing to sue is evaluated at the time of the filing of the complaint. Id. at ¶24. Additionally, the lack of standing cannot be cured by a subsequent assignment of the note and mortgage subsequent to filing the complaint. Id. at ¶38.

{¶17} A plaintiff in a foreclosure case demonstrates standing by having an interest in either the promissory note or mortgage. Fed. Home Loan Mtge. Corp. v. Koch, 11th Dist. Geauga No. 2012-G-3084, 2013-Ohio-4423, ¶24, citing Fed. Home Loan Mtge. Corp. v. Rufo, 11th Dist. Ashtabula No. 2012-A-0011, 2012-Ohio-5930, ¶18. The requisite “interest” can be met by demonstrating an assignment of either the note or mortgage. Rufo at ¶44. There is no standing to proceed with the foreclosure if the interest did not exist at the time the foreclosure complaint was filed. Schwartzwald at ¶25-27.

{¶18} The assignment of a mortgage, without an express transfer of the note, is sufficient to transfer both the mortgage and the note if the record indicates the parties’ intent to transfer both. Bank of N.Y. Mellon v. Veccia, 11th Dist. Trumbull No. 2013-T-0101, 2014-Ohio-2711, ¶20, citing Bank of New York v. Dobbs, 5th Dist. Knox No. 2009-CA-000002, 2009-Ohio-474, ¶31. In this case, appellee attached to its complaint the assignment of mortgage which “assign[ed], transfer[red] and set over unto [appellee], * * *, a certain mortgage from [appellant] to Chase Bank USA, N.A.” By attaching a copy of the assignment of mortgage to the complaint, appellee demonstrated the requisite standing existed at the time the foreclosure complaint was filed.

{¶19} Appellant argues that because appellee attached to its motion for summary judgment an undated allonge, not previously attached to appellee’s complaint, a question of fact was created as to whether appellee had standing when the complaint was filed. Appellant argues that had the allonge existed at the commencement of appellee’s action, it would have appeared after the note. We disagree. The fact that the allonge was not attached to the complaint does not require the conclusion that appellee lacked standing.

{¶20} In this case, the record reflects the parties’ intent for the note and mortgage to be transferred together. The mortgage states:

This 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 conveyance under the Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described property * * *.

The promissory note states:

In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (the `Security Instrument’), dated the same day as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under the Note.

{¶21} The language contained in the note and mortgage demonstrates the clear intent that both be transferred together. See, e.g., LSF6 Mercury Reo Invs. v. Garrabrant, 5th Dist. Delaware No. 13-CAE-06-0050, 2014-Ohio-901, ¶18 (the clear intent by the parties to keep the note and mortgage together, rather than transferring the mortgage alone, is demonstrated by the fact that the note refers to the mortgage and the mortgage refers to the note). As a result, appellee sufficiently demonstrated standing to enforce the note and file the foreclosure complaint. Appellant’s second sub-issue is without merit.

{¶22} Appellant’s first and third sub-issues are considered together, as they both argue that appellee failed to properly notify appellant of conditions precedent to foreclosure. In appellant’s first sub-issue, she asserts that summary judgment was improper because “[a]ppellee failed to fulfill a condition precedent to the acceleration of the debt and the filing of the foreclosure complaint.” In appellant’s third sub-issue, she asserts that summary judgment was improper because “[t]he trial court could consider the affidavit of Lois M. Blank, as it was not a prohibited `self-serving’ affidavit.” In summary, appellant argues that (1) appellee mailed the demand letter by way other than first-class mail; (2) she did not receive any notice; and (3) delivery methods other than first-class are not deemed received until actual delivery.

{¶23} “Where prior notice of default and/or acceleration is required by a provision in a note or mortgage instrument, the provision of notice is a condition precedent subject to Civ.R. 9(C).” Citimortgage, Inc. v. Hijjawi, 11th Dist. Lake No. 2013-L-0105, 2014-Ohio-2886, ¶17, quoting First Fin. Bank v. Doellman, 12th Dist. Butler No. CA2006-02-029, 2007-Ohio-0222, ¶20. Additionally, a general denial of the performance of conditions precedent is insufficient to place performance of a condition precedent at issue. Doellman, supra, at ¶20.

{¶24} In this case, the mortgage contained language requiring that appellant be given notice before the acceleration of the debt and the filing of a foreclosure complaint. Specifically, the mortgage states:

Acceleration; Remedies. 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 note secured by this Security Instrument, foreclosure by judicial proceedings and sale of the Property.

{¶25} The mortgage also specifies how notice is to be given. Specifically, “[a]ny 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.”

{¶26} In support of its motion for summary judgment, appellee offered the affidavit of Richard H. Eubanks, a vice president for appellee. Eubanks’ affidavit stated:

1. I am authorized to execute this affidavit on behalf of [appellee]. The statements made in this Affidavit are based on my personal knowledge.

* * *

4. In my capacity as Vice President, I have access to [appellee]‘s business records, maintained in the ordinary course of regularly conducted business activity, including the business records for and relating to the Borrower’s loan. Their records include the historic records of Chase Home Finance LLC, which merged with [appellee] effective May 1, 2011. I make this affidavit based upon my review of those records relating to the Borrower’s loan and from my own personal knowledge of how they are kept and maintained. The loan records for the Borrower are maintained by [appellee] in the course of its regularly conducted business activities and are made at or near the time of the event, by or from information transmitted by a person with knowledge.

5. [Appellee]‘s business records that relate to [appellant]‘s loan I reviewed and relied upon for the statements made in this affidavit include but are not limited to the Note, Mortgage and [appellee]‘s electronic servicing system. True and exact copies of the Note (Exhibit A), Mortgage (Exhibit B), Assignment (Exhibit C) and Demand Letter (Exhibit D) are attached hereto.

{¶27} Appellant filed an affidavit in support of her memorandum in opposition to appellant’s motion for summary judgment. Appellant’s affidavit stated:

4. At no time prior to [ ] the filing of the complaint for foreclosure did JPMorgan Chase Bank, National Association send a notice of acceleration to pursuant to the terms of the mortgage.

5. I did not receive a notice of default or notice of acceleration, by regular mail or by certified mail at any time prior to the filing of the complaint for foreclosure.

6. No one personally delivered to me a notice of default or notice of acceleration at any time prior to the filing of the complaint for foreclosure.

{¶28} Upon review of the record, we hold that a genuine question of material fact remains as to whether the required notice provisions of the mortgage had been met by appellee. The acceleration warnings attached to Eubanks’ affidavit stated that the notices were sent “return service requested.” Whether this is first-class mail or some other form of delivery that would produce confirmation of receipt is not clear from the record. Appellee offered no affidavit evidence to support that the notices were sent first-class mail. The mortgage states notice is given upon mailing when using first-class mail, but only upon delivery when sent through other means. Based on this plain language, appellee does not need to prove delivery of the notice only when using first-class mail. Appellant’s affidavit declares that notice was not received. If notice was not sent via first-class mail, but rather sent by other means that provides a receipt of service, that receipt should have been provided.

{¶29} In sum, appellee did not present sufficient evidence to indicate how the notice was sent. A question of fact exists as to whether appellee sent the notice via first-class mail or through some other means. Once appellant contested the receipt of notice, appellee could have offered an affidavit stating that notice was sent first-class mail or offered proof of actual delivery if some other method was used. See, CitiMortgage, Inc. v. Loncar, 7th Dist. Mahoning No. 11 MA 174, 2013-Ohio-2959, ¶28. Furthermore, appellee’s affidavit does not declare that the conditions precedent were met prior to the filing of the foreclosure complaint. See id.

{¶30} For these reasons, appellant’s first and third sub-issues are well taken. The record in this case demonstrates that a question of fact remains as to whether appellee complied with the notice provisions contained in the mortgage. As such, appellant’s assignment of error has merit to the extent indicated.

{¶31} For the reasons stated in this opinion, the judgment of the trial court is reversed and remanded to the trial court.

THOMAS R. WRIGHT, J., COLLEEN MARY O’TOOLE, J., concur.

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Inside the New York Fed: Secret Recordings and a Culture Clash

Inside the New York Fed: Secret Recordings and a Culture Clash

We will get to the truth


Truth-Out-

Barely a year removed from the devastation of the 2008 financial crisis, the president of the Federal Reserve Bank of New York faced a crossroads. Congress had set its sights on reform. The biggest banks in the nation had shown that their failure could threaten the entire financial system. Lawmakers wanted new safeguards.

The Federal Reserve, and, by dint of its location off Wall Street, the New York Fed, was the logical choice to head the effort. Except it had failed miserably in catching the meltdown.

New York Fed President William Dudley had to answer two questions quickly: Why had his institution blown it, and how could it do better? So he called in an outsider, a Columbia University finance professor named David Beim, and granted him unlimited access to investigate. In exchange, the results would remain secret.

[TRUTH-OUT]

(Photo: Earl Wilson / The New York Times)

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Real property, financial services & title insurance update – September 22, 2014 . . . A collection of national “reverse and remands”

Real property, financial services & title insurance update – September 22, 2014 . . . A collection of national “reverse and remands”

REAL PROPERTY UPDATE

  • Parol Evidence: trial court erred by considering extrinsic evidence to determine parties’ intent because contract for sale of property that provided certain prior deposits be paid to seller as consideration for buyer’s extensions of closing date was clear and unambiguous – Dirico v. Redland Estates, Inc., No. 3D12-3132 (Fla. 3d DCA Sept. 10, 2014) (substitute opinion on rehearing, reversed and remanded)
  • Jurisdiction: trial court lacked subject matter jurisdiction and erred by entering summary judgment in favor of lender after action had been dismissed for lack of prosecution – Magloire v. The Bank of New York, No. 4D11-4540 (Fla. 4th DCA Sept. 10, 2014) (reversed and remanded)
  • Foreclosure: trial court erred by entering judgment of foreclosure without taking testimony or considering evidence – Muhammad v. BAC Home Loans Servicing, LP, No. 4D13-1580 (Fla. 4th DCA Sept. 10, 2014) (reversed and remanded)
  • Email Service: summary judgment improper where plaintiff failed to serve pleadings on defendant at designated e-mail address – Charles v. H&R Block Bank, No. 4D13-2895 (Fla. 4th DCA Sept. 10, 2014) (reversed and remanded)
  • Trial Notice: judgment based on defendants’ failure to appear at trial set within less than 30 days from notice was improper per Florida Rule of Civil Procedure 1.440(c) – BAC Home Loans Servicing L.P. v. Parrish, No. 1D13-4150 (Fla. 1st DCA 2014) (reversed and remanded)
  • Foreclosure/Standing: plaintiff failed to demonstrate it had standing at lawsuit’s commencement and, further, assigned note after lawsuit but never received assignment of note back – Pennington v. Ocwen Loan Servicing, LLC, No. 1D13-3072 (Fla. 1st DCA Sept. 16, 2014) (reversed and remanded for further proceedings).
  • Foreclosure/Contractor’s Lien: reversing final judgment of foreclosure in favor of entity that purchased loans because fact issue remained regarding whether entity created investors that controlled developers for improper purpose of extinguishing contractor’s liens – CDC Builders, Inc. v. Biltmore-Sevilla Debt Investors, LLC, No. 3D13-603 (Fla. 3d DCA Sept. 17, 2014) (reversing summary judgment and remanding for further proceedings).
  • Foreclosure/Striking Pleadings: affirming striking of pro se defendant’s pleadings for willful and deliberate failure to comply with multiple orders – Ledo v. Seavie Resources, LLC, No. 3D14-21 (Fla. 3d DCA Sept. 17, 2014).
  • Quiet Title/Amendment of Pleadings: property owners should have been permitted leave to amend before dismissal of their quiet title claim with prejudice – Ledo Unrue v. Wells Fargo Bank, N.A., No. 5D13-3443 (Fla. 5th DCA Sept. 19, 2014).
  • Sinkhole/Appraisal Clause: appraiser could determine method or scope of necessary repairs when determining “amount of loss” where insurer admitted insured sustained covered loss, but appraiser had to be disinterested – Fla. Ins. Guar. Ass’n, etc v. Branco, No. 5D13-2929 (Fla. 5th DCA Sept. 19, 2014) (reversing order allowing party’s attorney to serve as appraiser, but affirming in all other respects)

FINANCIAL SERVICES UPDATE – NONE

TITLE INSURANCE UPDATE

  • Duty to Defend: where insurer knew of existing litigation against insured, insurer had duty to provide defense; thus, insurer liable for pre-tender costs of defense even before insured requested defense – CH Properties, Inc. v. First American Title Ins. Co., Case No. 13-1354 (D. Puerto Rico Sept. 9, 2014) (granting in part, denying in part cross motions for summary judgment)
  • Duty to Defend: where allegations of complaint do not directly contest or otherwise affect validity of insured interest, insurer has no duty to defend pursuant to eight corners rule – CH Properties, Inc. v. First American Title Ins. Co., Case No. 13-1354 (D. Puerto Rico Sept. 9, 2014) (granting in part, denying in part cross motions for summary judgment)
  • Coverage: presence of trespassers does not give rise to coverage under leasehold title insurance policy – CH Properties, Inc. v. First American Title Ins. Co., Case No. 13-1354 (D. Puerto Rico Sept. 9, 2014) (granting in part, denying in part cross motions for summary judgment)
  • Coverage: title insurance does not insure against imposition of taxes assessed after date policy issued and a pending tax appeal did not render title unmarketable or constitute a defect in title – Princeton South Investors, LLC v. First American Title Ins. Co., Case No. A-0850-12T3 (N.J. App. Sept. 8, 2014)(affirming summary judgment)
  • Economic Loss Rule: claim based on failure to properly carry out title search undertaken pursuant to written contract sounds in contract and not tort, no matter how plead – Dawkins v. First American Title Co., LLC, Case No. 07-12-00437-CV (Tex. App. Sept. 11, 2014)(affirming summary judgment)
  • Release: where insured is paid pursuant to a title insurance policy and signs a release of all claims relating to the defect and the insurer issues an endorsement excepting the instrument creating the defect from coverage, insured’s future claims are barred – Chorches v. Stewart Title Guar. Co., Case No. 3:13-cv-01182 (D. Conn. Sept. 10, 2014) (order granting motion to dismiss and summary judgment)

source: Carlton Fields

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MAGLOIRE v. Bank of New York, Fla: Dist. Court of Appeals, 4th Dist. 2014 | A trial court lacks jurisdiction to hear a case once it has been dismissed

MAGLOIRE v. Bank of New York, Fla: Dist. Court of Appeals, 4th Dist. 2014 | A trial court lacks jurisdiction to hear a case once it has been dismissed

 

MORIN MAGLOIRE and GERMAIN JEAN CLAUDE, Appellants,
v.
THE BANK OF NEW YORK as Trustee for the certificate holders CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2006-23, Appellee.

No. 4D11-4540.
District Court of Appeal of Florida, Fourth District.
September 10, 2014.
S. Tracy Long of Law Offices of S. Tracy Long, P.A., Deerfield Beach (withdrawn as counsel after filing brief); Morin Magloire and Germain Jean-Clause, Lauderdale Lakes, pro se.

Michael P. Bruning of Connolly, Geaney, Ablitt & Willard, P.C., West Palm Beach, for appellee.

PER CURIAM.

The homeowners appeal the trial court’s order granting final summary judgment of foreclosure in favor of the bank. The homeowners argue that the trial court erred in granting the bank’s motion for summary judgment after the trial court previously dismissed the case for lack of prosecution. We agree.

On October 10, 2008, the bank filed a mortgage foreclosure complaint based on a mortgage and note executed by the homeowners in September of 2006. On October 15, 2008, the homeowners filed an answer to the complaint, in the form of a letter to the court, explaining that they had “experienced a serious hardships [sic] that have prevented [them] from making the mortgage payments on [their] primary residence.” Additionally, they stated that they were trying to work with the leader “to work out a re-instatement or re-payment plan.”

On November 19, 2009, the trial court filed a notice of intent to dismiss the bank’s complaint after there had been no record activity in the case since November 5, 2008. The trial court set a hearing on the issue, and the bank filed a statement asserting good cause as to why the action should remain pending.[1] Within its response, the bank stated that it was currently evaluating the homeowner’s loan to determine if the homeowners would qualify for a settlement offer, and asked the court to allow the case to remain open until the bank could complete negotiations with the homeowners. On December 16, 2009, the trial court entered a final order of dismissal of the bank’s complaint, because there was “no record activity > 1 yr (since 11/5/2008) and no good cause.”

On June 28, 2010, the bank filed a motion for summary judgment. Then, on November 9, 2011, a hearing was held on the bank’s motion for summary judgment. On the same date, the trial court entered a summary final judgment of foreclosure in favor of the bank. The homeowners appeal this order.

There were no transcripts provided of the motion for summary judgment hearing, and it is therefore unknown whether the homeowners raised the issue of the previous dismissal of the case and the trial court’s subsequent lack of jurisdiction over the case. However, “the issue of subject-matter jurisdiction . . . may be raised for the first time on appeal.” Rudel v. Rudel, 111 So. 3d 285, 291 (Fla. 4th DCA 2013).[2]

“Whether a court has subject matter jurisdiction is a question of law reviewed de novo.” Sanchez v. Fernandez, 915 So. 2d 192, 192 (Fla. 4th DCA 2005).

A trial court lacks jurisdiction to hear a case once it has been dismissed. See Gardner v. Nioso, 108 So. 3d 1122, 1123 (Fla. 1st DCA 2013) (“[B]y the trial court’s dismissal of the action against them, and the subsequent affirmance of that dismissal, the trial court no longer has jurisdiction over Appellees.”); Harrison v. La Placida Cmty. Ass’n, 665 So. 2d 1138, 1141 (Fla. 4th DCA 1996) (“Once [the defendat] was dismissed, the trial court no longer had jurisdiction over her.’); Ludovici v. McKiness, 545 So. 2d 335, 336 n.3 (Fla. 3d DCA 1989) (“A trial court lacks jurisdiction to vacate an order of dismissal without prejudice after the order becomes final. An exception to this finality is a Rule 1.540 motion. The trial court has jurisdiction to entertain a timely motion for rehearing or to revisit the cause on the court’s own initiative within the time allowed for a rehearing motion.”) (internal citations omitted); Derma Lift Salon, Inc v. Swanko, 419 So. 2d 1180, 1180-81 (Fla. 3d DCA 1982). (“The trial court’s order of dismissal entered May 11, 1982, albeit `without prejudice,’ was a final appealable order, subject to the further jurisdiction of the trial court only upon a timely filed motion for rehearing under Florida Rule of Civil Procedure 1.530.”) (internal citation omitted). Since there was no motion for rehearing or motion to vacate filed or ruled upon regarding the order of dismissal in the instant case, the trial court did not have jurisdiction to enter an order granting the bank’s subsequently-filed motion for summary judgment. Additionally, although the trial court’s final order of dismissal was entered “without prejudice to refile,” the bank never refiled the complaint prior to filing its motion for summary judgment.

The bank argues that the trial court’s order should be allowed to stand because it exercised its powers of “equitable jurisdiction” in granting the bank’s motion for summary judgment. However, we find the bank’s argument, basically that equitable jurisdiction can replace subject-matter jurisdiction, unconvincing. See Black’s Law Dictionary 18(c) (9th ed. 2009) (quoting William Q. de Funiak, Handbook of Modern Equity 38 (2d ed. 1956)) (“[T]he term equity jurisdiction does not refer to jurisdiction in the sense of the power conferred by the sovereign on the court over specified subject-matters or to jurisdiction over the res or the persons of the parties in a particular proceeding but refers rather to the merits. The want of equity jurisdiction does not mean that the court has no power to act but that it should not act, as on the ground, for example, that there is an adequate remedy at law.”) (emphasis added) (internal quotation marks omitted).

Therefore, we reverse the trial court’s order granting the bank’s motion for summary judgment and remand the case to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

GROSS, GERBER and CONNER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

[1] “[T]he action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.” Fla. R. Civ. P. 1.420(e) (emphasis added).

[2] The type of jurisdiction at issue in the instant case is that of subject-matter jurisdiction. See Bernard v. Rose, 68 So. 3d 946, 948 (Fla. 3d DCA 2011) (referring to the trial court’s jurisdiction over a case after a dismissal for lack of prosecution as that of subject-matter jurisdiction).

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Deutsche Bank Natl. Trust Co. v Tassone | NYSC – the initial assignment of the mortgage and note from New Century to DBNT, is circumspect, thereby rendering any subsequent assignments questionable….fails to indicate whether the Note was assigned as well.

Deutsche Bank Natl. Trust Co. v Tassone | NYSC – the initial assignment of the mortgage and note from New Century to DBNT, is circumspect, thereby rendering any subsequent assignments questionable….fails to indicate whether the Note was assigned as well.

Decided on June 20, 2014

Supreme Court, Putnam County

 

Deutsche Bank National Trust Company, AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2003 MORGAN STANLEY ABS CAPITAL I INC. TRUST 2003-NC5, Plaintiff, -against -

against

Cosmo Tassone, CARMELA TASSONE, and “JOHN DOE” No.1-10, “MARY DOE” #1-10, and “JANE DOE” #1-10, the names being fictitious, their true names being unknown to the plaintiff, persons intended being persons in possession of portions of the premises herein described, Defendants.

2480/2011

Bruce H. Ashbahian, Esq.

DeRose & Surico

Attorney for Plaintiff

213-44 38th Avenue

Bayside, New York 11361

Nicole M. Black, Esq.

Clair & Gjersten, Esqs.

Attorney for Defendant

720 White Plains Road

Scarsdale, New York 10583
Victor G. Grossman, J.

The following papers, numbered 1 to 28, were considered in connection with Plaintiff’s motion to: (1) strike Defendant’s answer and grant summary judgment in Plaintiff’s favor; (2) change the name of plaintiff pursuant to an assignment of the mortgage; (3) amend the caption of the summons and complaint, notice of pendency, and all other papers filed by discontinuing the action against “John Doe” #1-10, “Mary Doe” #1-10, and “Jane Doe” #1-10 without prejudice; (4) appoint a referee; and (5) grant Plaintiff such other and further relief as the Court may deem just and proper; and Defendant’s Cross-Motion to Dismiss the Action in its Entirety.

PAPERSNUMBERED

Notice of Motion/Affirmation/Affidavit of Indebtedness/

Exhs. A-K1-14

Notice of Cross Motion/Affirmation in Opposition and In

Support of Cross Motion/Exhs. A-D15-20

Affirmation in Opposition/Exhs. A-G21-28

On February 18, 2003, Defendants Cosmo and Carmela Tassone executed an Adjustable Rate Note (the “Note”) with New Century Mortgage Corporation, wherein Defendants promised to repay New Century Mortgage Corporation, the principal sum of $280,000.00 with interest (Affirmation, Exh. A). At the same time, Defendants executed an Adjustable Rate Rider (Affirmation, Exh. A). To secure payment of the sum represented in the Note, Defendants duly executed and delivered to New Century Mortgage Corporation, a mortgage (the “Mortgage”), dated February 18, 2003, encumbering property located at 9 Fieldstone Road, Putnam Valley, New York 10579 (Affirmation, Exh. B). The Mortgage was recorded on April 2, 2003, in the Office of the Clerk of Putnam County at Liber 3552, Page 275 (Affirmation, Exh. B).

According to the documents presented to this Court, New Century Mortgage Corporation allegedly assigned the Mortgage and Note to Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, N.A., as Trustee (Affirmation, Exh. C). However, it is unclear when this occurred because the date of this document is January 2, 2004, but the document was not notarized until May 6, 2005 (Affirmation, Exh. C).

On July 1, 2011, Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, N.A., apparently assigned the Mortgage to Deutsche Bank National Trust Company, as Trustee Under Pooling and Servicing Agreement Dated as of May 1, 2003 Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC5 (Affirmation, Exh. C).

There appears to be another assignment of the Mortgage on May 20, 2013 by Plaintiff Deutsche Bank National Trust Company, as Trustee Under Pooling and Servicing Agreement Dated [*2]as of May 1, 2003 Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC5, to Deutsche Bank National Trust Company, As Trustee For Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC5, Mortgage Pass-Through Certificates, Series 2003-NC5 (Affirmation, Exh. C) — almost two years after this action for foreclosure was commenced (Affirmation, Exh. D).

According to Plaintiff, Defendants defaulted by failing to make the monthly payment that was due on December 1, 2009, and each successive month thereafter (Affirmation, Exh. D).

On March 24, 2011, Plaintiff allegedly sent Defendants their ninety (90) day notice (Cross-Motion, Exh. B). The next day, on March 25, 2011, Plaintiff allegedly sent Defendants a thirty (30) day notice of default. As a result of Defendants’ failure to cure the default, Plaintiff declared the balance of the principal indebtedness immediately due and owing (Affirmation; Affidavit of Indebtedness; Exh. J).

On August 11, 2011, Plaintiff filed the Summons and Complaint and Notice of Pendency (Affirmation, Exhs. D-E). On August 24, 2011, Defendant Carmela Tassone was personally served the Summons and Complaint, along with RPAPL §1303 Notice (Affirmation, Exh. F).

Defendants interposed an Answer on September 6, 2011, denying the allegations in the complaint and alleging thirteen (13) affirmative defenses (Affirmation, Exh. G).

Settlement conferences were held on February 8, 2012, April 11, 2012, May 23, 2012, and July 25, 2012 (Report to Court, Exh. K). After the July 25, 2012 hearing, Court Attorney-Referee Albert J. DeGatano ruled that Plaintiff, by virtue of being under a pooling agreement, was not acting in bad faith for not offering a loan modification where that pooling agreement specifically prohibited Plaintiff from do so, the matter was released from the Foreclosure Settlement Part, and the instant motion was filed. Defendants are opposing, and cross moving for dismissal.RPAPL §1304 provides that at least 90 days before a lender commences an action to foreclose on a mortgage, notice must be provided to the borrower that the loan is in default and that his or her home is at risk. The lender is required to send this notice “by registered or certified mail and also by first-class mail” See RPAPL §1304. “[P]roper service of RPAPL notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition.” Aurora Loan Services, LLC v. Weisbaum, 85 AD3d 95, 103 (2d Dept. 2011). Since satisfaction of a statutory condition precedent is an element of the claim itself which must be proved by plaintiff, the failure to show strict compliance would require dismissal. Id.

Here, the 90-day notice was sent to Defendant on March 24, 2011 (Affirmation, Exh. J). While there is a typed notation at the top of the document reflecting that it was sent “VIA First Class Mail,” and “VIA Certified Mail (return receipt requested),” and noting the certified number, there is no affidavit of service submitted to establish proper service on the borrowers, thereby confirming these notations. See Aurora Loan Services, LLC v. Weisblum, 85 AD3d, supra at 106. As such, Plaintiff has failed to satisfy a “mandatory condition precedent,” and the foreclosure action must be dismissed.

And to the extent Plaintiff submitted its opposition to Defendants’ cross-motion and attached a printout from the USPS reflecting the same certified number, this Court will not accept it. First, this affirmation, dated February 28, 2014, was served over two months after Defendants’ December 13, 2013 cross-motion was made, and there is no indication in the papers or the file that Plaintiff was granted an extension. Moreover, Plaintiff fails to explain why there was a delay. While this Court prefers to decide issues on their merits, this Court cannot ignore [*3]this excessive delay. And second, even it the Court were to consider this printout — which is arguably not even in admissible form — Plaintiff cannot rely on evidence submitted for the first time in its reply papers to remedy deficiencies in its prima facie showing. See Novita, LLC v. Hotel Times Square, LLC, 2013 WL 5785929 (Sup.Ct. October 17, 2013), citing Those Certain Underwriters at Lloyds, London v. Gray, 49 AD3d 1, 9 (1st Dept. 2007); see also Gampero v. Mathai, 105 AD3d 995 (2d Dept. 2013). As such, this Court will not consider the reply papers.In further support of their cross-motion, Defendants contest Plaintiff’s standing to commence this action. Although the failure to properly serve RPAPL §1304 Notice is sufficient reason to grant Defendants’ cross-motion and dismiss the complaint, this Court will address the standing issue in light of the possibility that the action may be recommenced after Plaintiff effects proper service of RPAPL §1304 Notice.

The plaintiff in a foreclosure action must establish the existence of the promissory note and a related mortgage referable to the subject property, its ownership of the mortgage and the defendant’s default in payment. Campaign v. Barba, 23 AD3d 327 (2d Dept. 2005). With respect to the issue of ownership, “[a]n assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired by it.” Deutsche Bank National Trust Co. v. Barnett, 88 AD3d 636, 637 (2d Dept. 2011). The foreclosing party, as plaintiff, must establish that it is “both the holder or assignee of the subject mortgage, and the holder of the underlying note, at the time the action is commenced.” Homecomings Financial, LLC v. Guldi, 103 AD3d 506 (2d Dept. 2013), quoting Bank of New York v. Silverberg, 86 AD3d 274, 282-83 (2d Dept. 2011).

Here, in the documents provided, the initial assignment of the mortgage and note from New Century Mortgage Corporation to Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, N.A., is circumspect, thereby rendering any subsequent assignments questionable. Moreover, the subsequent assignment of the mortgage to the current Plaintiff fails to indicate whether the Note was assigned as well.

Moreover, putting aside the validity of the initial assignment, it is still unclear from the affidavit of Alexa Benincasa whether Plaintiff was in physical possession of the Note at the time the action was commenced. As a threshold matter, as Defendant correctly points out, there is no indication in the record or moving papers, what authority a “Contract Management Coordinator” has to attest to the facts that she has. Moreover, her blanket statement that Plaintiff possessed the Note at the time of the commencement of the action, without any facts to support this statement, is insufficient to establish that Plaintiff did in fact have such possession. And the assignment of mortgage to the instant Plaintiff lends no further proof. As such, Plaintiff needs to be prepare to answer these questions at a future hearing, if one is ordered, as it has failed to establish a prima facie case.In light of the foregoing, this Court need not address the remaining issues, and it is hereby

ORDERED that Plaintiff’s motion is denied; and it is further

ORDERED that Defendant’s cross-motion is granted, and the action is dismissed without prejudice.The foregoing constitutes the Decision and Order of the Court.

Dated:Carmel, New York

June 20, 2014

__________________________________

HON. VICTOR G. GROSSMAN, J.S.C.

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The Reasons Bankers Weren’t Busted

The Reasons Bankers Weren’t Busted

One word: Government


Bloomberg View-

“There Were No Convictions of Bankers for Good Reason” is the headline of a post by Mark F. Pomerantz, a lawyer and retired partner at Paul, Weiss, Rifkind, Wharton & Garrison in the New York Times’s Room for Debate discussion:

The reason that senior bankers did not face charges, even though investigators interviewed countless witnesses and pored over truckloads of emails and other documents for many years, is that the executives running companies like Bank of America, Citigroup and JP Morgan were not engaged in criminal acts.

At least that is why according to Pomerantz. It should surprise no one that a lawyer who spent much of his career representing financial institutions and their executives wouldn’t see any prosecutable crimes. Fortunately, it is easily refutable, which is our task for today and tomorrow.

[BLOOMBERG VIEW]

© 2010-14 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.






Posted in STOP FORECLOSURE FRAUD1 Comment

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
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RR Compliance Consulting Inc was established to provide training and support services to the Loss Mitigation Consulting Community.  There is a huge void in the market for this training since those who are truly practicing in the field have neither the time nor interest in providing this training.
Jamie Ranney, www.NantucketLaw.pro
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