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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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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

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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]

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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

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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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Posted in STOP FORECLOSURE FRAUD0 Comments

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]

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Posted in STOP FORECLOSURE FRAUD1 Comment

Courts Have Ability To Issue Sanctions In Foreclosure Cases

Courts Have Ability To Issue Sanctions In Foreclosure Cases

New York Law Journal-

In response to the insightful article by Daniel Wise, “Panel Shifts Toward Remedy in ‘Sarmiento,’” (Aug. 29), I would raise one small point. Wise lamented that “The 2009 New York law (mandating settlement conferences in foreclosure cases) specifically instructed the Judiciary to issue rules to ‘ensure’ that judges have ‘the necessary authority and power’ to see that ‘conferences not be unduly delayed or subject to willful dilatory tactics,’” but that “the Judiciary has taken no action on the Legislature’s command.”

What the Legislature actually stated was “The chief administrator of the courts shall … promulgate such additional rules as may be necessary to ensure the just and expeditious processing of all settlement conferences authorized hereunder.”1

Although banks and mortgage servicers have argued in a number of cases that the failure of the chief administrator to have issued rules specifying what sanctions might be imposed for failing to negotiate in good faith at a settlement conference means that courts do not have any authority to sanction a violation, those arguments have been uniformly rejected.2

[NEW YORK LAW JOURNAL]

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Posted in STOP FORECLOSURE FRAUD0 Comments

CHASE PLAZA CONDOMINIUM ASSOCIATION, INC. v. JPMorgan Chase Bank, NA, DC: Court of Appeals 2014 | In sum, we hold that a condominium association can extinguish a first deed of trust by foreclosing on its six-month super-priority lien under D.C. Code § 42-1903.13 (a)(2).

CHASE PLAZA CONDOMINIUM ASSOCIATION, INC. v. JPMorgan Chase Bank, NA, DC: Court of Appeals 2014 | In sum, we hold that a condominium association can extinguish a first deed of trust by foreclosing on its six-month super-priority lien under D.C. Code § 42-1903.13 (a)(2).

I’m looking for the pdf for this.

CHASE PLAZA CONDOMINIUM ASSOCIATION, Inc. and DARCY, LLC, Appellants,
v.
JPMORGAN CHASE BANK, N.A., Appellee.

Nos. 13-CV-623 & 13-CV-674.
District of Columbia Court of Appeals.
Argued April 17, 2014.
Decided August 28, 2014.
Robert C. Gill, with whom Carolyn Due was on the brief, for appellant Chase Plaza Condominium Association, Inc.

Rachel Abramson for appellant Darcy, LLC.

Thomas J. McKee, Jr., with whom Michael R. Sklaire was on the brief, for appellee JPMorgan Chase Bank, N.A.

Thomas Moriarty, >Jason E. Fisher, >Laura M. Gagliuso, >Henry Goodman, and Loura Sanchez filed a brief on behalf of the Community Associations Institute as amicus curiae, in support of appellant Chase Plaza Condominium Association, Inc.

Before THOMPSON and McLEESE, Associate Judges, and KING, Senior Judge.

This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

McLEESE, Associate Judge.

Brian York purchased a condominium unit, financing the purchase through a mortgage loan that was secured by a deed of trust on the unit. After Mr. York defaulted on his monthly condominium assessments, appellant Chase Plaza Condominium Association, Inc. foreclosed on the unit. Appellant Darcy, LLC purchased the property at a foreclosure sale. Several months later, appellee JPMorgan Chase Bank, N.A. filed a complaint alleging that the foreclosure sale was void, because the price at the sale was unconscionably low and because the sale impermissibly purported to extinguish the lien created by the deed of trust. The trial court agreed on the latter point and granted summary judgment to JPMorgan. We reverse and remand.

I.

Except as noted, the following facts are undisputed. In July 2005, Mr. York purchased a condominium unit in Washington, D.C. Mr. York financed the purchase by executing a promissory note for $280,000 that was secured by a deed of trust on the unit. The deed of trust named Mr. York as “Borrower,” First Financial Services, Inc. as “Lender,” Federal Title & Escrow Co. as “Trustee,” and Mortgage Electronic Registration Systems, Inc. (“MERS”) as beneficiary and as a nominee for First Financial Services, Inc. The deed of trust was recorded in August 2005.

By late 2008, Mr. York was delinquent both on his mortgage payments and on the monthly condominium-association payments he was required to make to Chase Plaza. In April 2009, Chase Plaza recorded a condominium-assessment lien on the unit. Chase Plaza also conducted a title search on the unit, which revealed three outstanding liens: (1) the first deed of trust; (2) a second mortgage for $60,000; and (3) the condominium-assessment lien for $9,415.

Chase Plaza subsequently initiated foreclosure proceedings against Mr. York, seeking to recover six months’ worth of unpaid assessments. In January 2010, Chase Plaza filed a notice of foreclosure sale, published the notice, and mailed the notice to the parties named in the deed of trust. The notice specified that the foreclosure sale would not be subject to the first deed of trust. In other words, the notice reflected the position that Chase Plaza’s lien had a higher priority than the lien created by the first deed of trust and that if the foreclosure sale generated insufficient proceeds to satisfy Chase Plaza’s lien, the foreclosure sale would extinguish the lien created by the first deed of trust. See generally, e.g., Pappas v. Eastern Sav. Bank, FSB, 911 A.2d 1230, 1234 (D.C. 2006) (general rule is that valid foreclosure sale extinguishes subordinate liens that cannot be satisfied from proceeds of sale).

In February 2010, Darcy purchased the unit for $10,000 at a foreclosure sale.[1] Darcy was the only bidder at the sale. A deed of trust reflecting Darcy’s purchase was executed in March 2010.

In April 2010, JPMorgan commenced foreclosure proceedings against Mr. York for failure to make mortgage payments. After discovering that Chase Plaza had already foreclosed on the unit, JPMorgan filed a complaint against Chase Plaza and Darcy requesting that the trial court set aside the foreclosure sale and declare that JPMorgan held title to the unit. In explaining its interest in the unit, JPMorgan stated that in March 2009 MERS, which was designated as the beneficiary and nominee in the first deed of trust, had assigned its interest in the deed of trust to an entity JPMorgan referred to as Washington Mutual. JPMorgan further stated that it had acquired Washington Mutual in 2008, and that it also was the current holder of the original promissory note.

The trial court granted partial summary judgment to JPMorgan. Specifically, the trial court (1) determined that JPMorgan had standing to bring the action; (2) determined that Chase Plaza could not lawfully extinguish the first deed of trust; (3) voided the foreclosure sale because the unit had not been sold subject to the first deed of trust; and (4) declared that JPMorgan held title to the unit. Pursuant to the stipulation of the parties, the trial court subsequently dismissed JPMorgan’s remaining claims.

II.

We begin by addressing three threshold issues: whether JPMorgan has standing to raise its claims; whether the trial court’s order granting summary judgment is void because it violated the automatic stay under federal bankruptcy law; and whether Mr. York and Washington Mutual are indispensable parties to this case under Rule 19 of the Superior Court Rules of Civil Procedure.

A.

Chase Plaza and Darcy argue that JPMorgan lacks an interest in the unit sufficient to confer standing on JPMorgan. We disagree. JPMorgan alleges, and Chase Plaza and Darcy do not dispute, that JPMorgan has physical possession of the original promissory note, which is a negotiable instrument indorsed in blank. “An indorsement in blank is essentially a stamp that indorses an instrument without specially indorsing it to a specific party. Usually it makes that instrument payable to the bearer and transfers with it legal title to security attached to the instrument.” Leake v. Prensky, 798 F. Supp. 2d 254, 256 n.3 (D.D.C. 2011). Under District of Columbia law, the holder of a negotiable instrument indorsed in blank is normally entitled to enforce the instrument, including through foreclosure proceedings. See D.C. Code § 28:3-301 (2012 Repl.) (holder of negotiable instrument may enforce instrument), -205 (b) (2012 Repl.) (instrument indorsed in blank is payable to bearer and may be negotiated by transfer of possession); Leake, 789 F. Supp. 2d at 256-57 (bank in possession of note indorsed in blank was entitled to commence non-judicial foreclosure proceedings); Grant II v. BAC Home Loans Servicing, No. 10-cv-01543, 2011 WL 4566135, at *4 (D.D.C. Sept. 30, 2011) (“[A]s the Note is indorsed in blank, [the loan-servicing company's] possession of the Note establishes its status as holder of the Note . . . . As holder of the note, [the loan-servicing company] could properly enforce its provisions” through foreclosure proceedings.). We therefore conclude that JPMorgan has standing to seek to set aside the foreclosure sale.[2]

B.

During the course of the events at issue in this case, two of the dramatis personae declared bankruptcy: Mr. York, who had purchased the unit in 2005 but whose default in 2008 led to the 2010 foreclosure, declared personal bankruptcy in June 2011; and Washington Mutual, Inc., which arguably was assigned an interest in the promissory note in 2009, declared bankruptcy under Chapter 11 of the federal bankruptcy laws in 2008. Under federal bankruptcy law, the filing of certain kinds of bankruptcy petitions triggers an automatic stay. 11 U.S.C. § 362 (a) (2012) (filing petition for bankruptcy relief “operates as a stay”). That stay extends, among other things, to certain lawsuits “against the debtor . . . or to recover a claim against the debtor”; “to obtain possession of property of the [bankruptcy] estate or of property from the estate or to exercise control over property of the estate”; to enforce a lien against property of the estate; or to enforce against property of the debtor a lien securing a claim that arose before commencement of the bankruptcy proceeding. Id. at § 362 (a)(1), (3)-(5). Judgments rendered in violation of the automatic stay are void. Jones v. Cain, 804 A.2d 322, 329 (D.C. 2002). This court has the authority to decide in the first instance whether a trial-court ruling violated the bankruptcy stay. See id. at 325-29 (deciding in first instance that judgment against defendant violated automatic stay and was therefore void, because judgment was rendered after defendant filed petition for bankruptcy).

We perceive no violation of the automatic stay. With respect to Mr. York’s bankruptcy proceedings, which began in 2011, JPMorgan obtained an order lifting the stay to permit JPMorgan to foreclose against the unit “free and clear of any interest” of Mr. York or the bankruptcy estate. Moreover, Mr. York’s interest in the unit had been foreclosed upon in 2010, without any objection from Mr. York; Mr. York did not list the unit on his schedule of assets in the bankruptcy proceedings; and Mr. York denied owning the unit as of the time he filed for bankruptcy. Under the circumstances, we agree with the parties that the unit was not property of Mr. York’s bankruptcy estate and that the present lawsuit did not otherwise run afoul of the automatic stay. Cf., e.g., Foskey v. Plus Props., LLC, 437 B.R. 1, 11-12 (D.D.C. 2010) (property in which debtor has no legal or equitable interest “is deemed to be outside the property of the estate” and not subject to automatic stay; automatic stay did not bar post-petition acts concerning property previously owned by debtor but sold in pre-petition tax sale).

With respect to Washington Mutual, any interest it might have in the first deed of trust did not arise until 2009, after Washington Mutual, Inc. filed for bankruptcy. Where the bankruptcy debtor is a corporation that continues to operate during the pendency of the bankruptcy proceeding, as apparently was the case with Washington Mutual, Inc., property obtained by the debtor corporation after the filing of the bankruptcy petition may well be property of the bankruptcy estate. See 3 Alan N. Resnick & Henry J. Sommer, Collier Bankruptcy Manual § 541.02, at 541-6 to -7 (4th ed. 2014) (citing 11 U.S.C. § 541 (a)(6)-(7) (2012)). But it is not at all clear on the record before us whether the interest in the deed of trust should properly be viewed as part of the Washington Mutual, Inc. bankruptcy estate. There are a number of different but apparently related entities with some variant of the name Washington Mutual. The document assigning MERS’s interest in the deed of trust refers to Washington Mutual without clearly indicating the precise entity to which the interest was being assigned. Moreover, JPMorgan purchased some of the assets of Washington Mutual Bank on September 25, 2008, the day before Washington Mutual, Inc. filed its bankruptcy petition. JPMorgan appears to claim that the interest subsequently transferred to Washington Mutual by MERS fell within the scope of that transaction, and thus that JPMorgan rather than the bankruptcy estate is the owner of the interest in the deed of trust. It appears that there has been significant litigation in the bankruptcy case with respect to the question of which Washington Mutual assets were acquired by JPMorgan in the September 2008 transaction. We cannot tell from the record in this case whether this case involved property of Washington Mutual, Inc.’s bankruptcy estate or otherwise violated the automatic stay. Under the circumstances, we have no basis upon which to conclude that the trial court’s judgment in this case is void as a violation of the automatic stay. Cf. In re Angelo, 480 B.R. 70, 83 (Bankr. D. Mass. 2012) (“A party seeking to establish that a judgment was entered in violation of the automatic stay bears the burden of proof.”) (citation omitted).[3]

C.

Finally, we conclude that Mr. York and Washington Mutual are not indispensable parties to this case. Under Rule 19 (b) of the Superior Court Rules of Civil Procedure, a court may not grant relief in the absence of an indispensable party. To qualify as an indispensable party, a person must either be necessary to grant complete relief to the parties or “claim[] an interest relating to the subject of the action.” Super. Ct. Civ. R. 19 (a). Because there is insufficient evidence in this record that either Mr. York or Washington Mutual has a present interest in the unit or is otherwise essential to grant complete relief to the parties, we have no basis to find that they are indispensable parties. Cf., e.g., Habib v. Miller, 284 A.2d 56, 56-58 (D.C. 1971) (company that claimed “no interest” in deposit was not indispensable in action to recover deposit).

III.

Turning to the merits, we review de novo orders granting summary judgment. District of Columbia v. Place, 892 A.2d 1108, 1110-11 (D.C. 2006). “Summary judgment is only appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ward v. Wells Fargo Bank, N.A., 89 A.3d 115, 126 (D.C. 2014) (internal quotation marks omitted). “In considering summary judgment, we view the facts in the light most favorable to the non-moving [parties].” Id. (internal quotation marks omitted).

This case turns on the proper understanding of D.C. Code § 42-1903.13 (2012 Repl.), which addresses condominium foreclosures. Chase Plaza and Darcy argue that a condominium association is permitted to foreclose on a six-month condominium-assessment lien and distribute the proceeds from the foreclosure sale first to satisfy the condominium-assessment lien and then to satisfy any remaining liens in order of lien priority. Any liens that are unsatisfied by the foreclosure-sale proceeds are extinguished, and the foreclosure-sale purchaser acquires free and clear title. JPMorgan argues, to the contrary, that although a condominium association is permitted to foreclose on a six-month condominium-assessment lien, the foreclosure is subject to any previously recorded first mortgage lien. We agree with Chase Plaza and Darcy.

A.

Whether the foreclosure sale extinguished the first deed of trust under D.C. Code § 42-1903.13 is a question of statutory interpretation that we determine de novo. Hernandez v. Banks, 84 A.3d 543, 552 (D.C. 2014). “The first step in construing a statute is to read the language of the statute and construe its words according to their ordinary sense and plain meaning.” O’Rourke v. District of Columbia Police & Firefighters’ Ret. & Relief Bd., 46 A.3d 378, 383 (D.C. 2012) (internal quotation marks omitted). “The literal words of a statute, however, are not the sole index to legislative intent, but rather, are to be read in the light of the statute taken as a whole, and are to be given a sensible construction and one that would not work an obvious injustice.” Columbia Plaza Tenants’ Ass’n v. Columbia Plaza Ltd. P’ship, 869 A.2d 329, 332 (D.C. 2005) (internal quotation marks and brackets omitted). We “consult the legislative history of a statute for guidance as necessary.” Robert Siegel, Inc. v. District of Columbia, 892 A.2d 387, 393 (D.C. 2006). “[A]s a general rule, we presume that where a legislature adopts a term of art, it knows and adopts the cluster of ideas that were attached to each borrowed word.” Doe No. 1 v. Burke, 91 A.3d 1031, 1041 (D.C. 2014) (internal quotation marks omitted). Moreover, “[n]o statute should be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.” Estate of Gulledge, 673 A.2d 1278, 1281 (D.C. 1996) (internal quotation marks omitted); see also United States v. Texas, 507 U.S. 529, 534 (1993) (“[S]tatutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.”) (internal quotation marks omitted).

The District of Columbia Condominium Act governs the creation and operation of condominiums. D.C. Code § 42-1901.01 et seq. (2012 Repl.). Under the Act, a condominium association may impose a lien against a unit for non-payment of condominium-association assessments. Id. at § 42-1903.13 (a). The lien is “prior to any other lien or encumbrance except [among other things,] . . . [a] first mortgage . . . or [first] deed of trust . . . recorded before the date on which the assessment sought to be enforced became delinquent[.]” Id. at § 42-1903.13 (a)(1)(B). The Act, however, provides the highest priority to liens relating to the most recent six months of condominium assessments:

The lien shall also be prior to a [first] mortgage or [first] deed of trust . . . to the extent of the common expense assessments . . . which would have become due in the absence of acceleration during the [six] months immediately preceding institution of an action to enforce the lien.

Id. at § 42-1903.13 (a)(2). Thus, the Act effectively splits condominium-assessment liens into two liens of differing priority: (1) a lien for six months of assessments that is higher in priority than the first mortgage or first deed of trust — sometimes called a “super-priority lien” — and (2) a lien for any additional unpaid assessments that is lower in priority than the first mortgage or first deed of trust.

The Act does not expressly address what happens when, as in this case, a condominium association forecloses solely on its super-priority lien and the proceeds of the sale are not sufficient to pay off a first deed of trust. A general principle of foreclosure law, however, potentially provides an answer: liens with lower priority are extinguished if a valid foreclosure sale yields proceeds insufficient to satisfy a higher-priority lien. Pappas, 911 A.2d at 1234. That general principle is derived from the common law and is well settled in this and other jurisdictions. See, e.g., Waco Scaffold & Shoring Co. v. 425 Eye St. Assocs., 355 A.2d 780, 783 (D.C. 1976) (foreclosure sale based on lien with “superior” priority extinguished liens with lower priority); In re Cypresswood Land Partners, I, 409 B.R. 396, 437 (Bankr. S.D. Tex. 2009) (noting “common-law rule that foreclosure of a senior lien extinguishes all junior liens”) (internal quotation marks omitted); Conseco Fin. Servicing Corp. v. J & J Mobile Homes, Inc., 120 S.W.3d 878, 885 (Tex. App. 2003) (relying on “common-law rule that foreclosure of a senior lien extinguishes all junior liens”); cf. Abdoney v. York, 903 So. 2d 981, 983 (Fla. Dist. Ct. App. 2005) (“Under the common law, the foreclosure of a senior mortgage extinguishes the liens of any junior mortgagees. . . .”); Restatement (Third) of Property (Mortgages) § 7.1 (2014) (“A valid foreclosure of a mortgage terminates all interests in the foreclosed real estate that are junior to the mortgage being foreclosed. . . .”).[4]

The parties in this case do not dispute that, under D.C. Code § 42-1903.13 (a)(2), Chase Plaza’s super-priority lien had a higher priority than JPMorgan’s first deed of trust. The parties also do not dispute that the proceeds from the foreclosure sale were insufficient to satisfy the first deed of trust. Taking the language of the statute together with basic principles of foreclosure law, it would seem to follow that Chase Plaza’s foreclosure sale extinguished JPMorgan’s first deed of trust. The concept of a split-priority lien does not appear to have been part of the common law, however, and we therefore confront the question whether the general principles of foreclosure law apply in this novel context. For the reasons that follow, we conclude that they do.

First, JPMorgan’s interpretation of D.C. Code § 42-1903.13 (a)(2) would create a six-month condominium-assessment lien that had priority over the first deed of trust but could not extinguish the first deed of trust. Such an interpretation would be a significant departure from the basic principle that foreclosure on a higher priority lien extinguishes lower-priority liens. The language of § 42-1903.13 (a)(2) does not suggest that the District of Columbia Council intended such a departure. Cf. Conseco Fin. Servicing Corp., 120 S.W.3d at 885 (“Nothing in the legislative history or in the language of the statute itself indicates legislative intent to super[s]ede the common-law rule that foreclosure of a senior lien extinguishes all junior liens. Indeed, if junior liens were to survive a foreclosure sale, buyers would have no incentive to bid on the property.”). We are inclined to think that if the Council had intended to depart from well-settled principles of foreclosure law, it would have done so explicitly. See, e.g., Newell-Brinkley v. Walton, 84 A.3d 53, 58 (D.C. 2014) (“[I]t is highly unlikely that the Council would have altered preexisting law in so fundamental a way implicitly rather than explicitly.”) (citing Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”)); cf., e.g., Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010) (“Congress is understood to legislate against a background of common-law. . . principles”) (internal quotation marks omitted; ellipses in Samantar).

The legislative history of D.C. Code § 42-1903.13 (a)(2) supports the same conclusion. The provision creating the six-month super-priority lien for condominium assessments was enacted in 1991. Condominium Act of 1976 Reform Amendment Act of 1990, D.C. Law 8-233, § 2 (gg)(1), 38 D.C. Reg. 283-84 (1991). The Committee Report on the Act describes that provision as giving condominium “associations the maximum flexibility in collecting unpaid condominium assessments.” D.C. Council, Report on Bill 8-65, at 3 (Nov. 13, 1990). The provision was modeled on the Uniform Common Ownership Interest Act (“UCOIA”) and the Uniform Condominium Act (“UCA”), each of which includes a quite similar provision creating a six-month super-priority lien. UCOIA § 3-116 (b), 7 U.L.A. 122 (1982); UCA § 3-116 (b), 7 U.L.A. 626 (amended 1980). The official comments to the UCOIA and UCA indicate that the drafters of those uniform laws understood that foreclosure on the super-priority lien could extinguish a first mortgage or first deed of trust, but expected that mortgage lenders would take the necessary steps to prevent that result, either by requiring payment of assessments into an escrow account or by paying assessments themselves to prevent foreclosure. UCOIA § 3-116, cmt. 1, 7 U.L.A. 124; UCA § 3-116, cmt. 2, 7 U.L.A. 627. An example provided by the drafters of the uniform laws further illustrates the point, describing the first mortgage lien as “junior” to the six-month super-priority lien, and noting that lenders could protect themselves by requiring escrow of six months of assessments, as lenders do with property taxes. UCA § 2-118, ex. 1B, 7 U.L.A. 571, 572.[5]

Because the pertinent provision of the District’s Condominium Act is based on the UCA and UCOIA, the official comments by the drafters of those uniform acts provide important guidance in construing our provision. See generally, e.g., Platt v. Aspenwood Condo. Ass’n, Inc., 214 P.3d 1060, 1063-64 (Colo. App. 2009) (relying on drafters’ comments to UCOIA for guidance in interpreting state statute based on UCOIA; “We accept the intent of the drafters of a uniform act as the General Assembly’s intent when it adopts that uniform act.”) (internal quotation marks omitted); Hunt Club Condos., Inc. v. Mac-Gray Servs., Inc., 721 N.W.2d 117, 123-25 (Wis. Ct. App. 2006) (official and published comments accompanying provision of UCA are “valid indicator” of state legislature’s intent in enacting corresponding state statute).[6]

Taken together, the language of D.C. Code § 42-1903.13 (a)(2), general principles of foreclosure law, and the legislative history of the provision support a conclusion that Chase Plaza’s foreclosure pursuant to the super-priority lien extinguished JPMorgan’s first deed of trust. See, e.g., 7912 Limbwood Ct. Trust v. Wells Fargo Bank, N.A., 979 F. Supp. 2d 1142, 1146-53 (D. Nev. 2013) (under Nevada law, foreclosure sale on super-priority lien extinguished all junior interests, including first deed of trust); Summerhill Vill. Homeowners Ass’n v. Roughley, 289 P.3d 645, 647-48 (Wash. Ct. App. 2012) (same under Washington law). But see, e.g., Premier One Holdings, Inc. v. BAC Home Loans Servicing LP, No. 2:13-CV-895, 2013 WL 4048573, at *3-6 (D. Nev. Aug. 9, 2013) (under Nevada law, homeowner association’s foreclosure on super-priority lien did not extinguish first deed of trust, and foreclosure-sale purchaser took property subject to first deed of trust) (citing cases); Bayview Loan Servicing, LLC v. Alessi & Koenig, LLC, 962 F. Supp. 2d 1222, 1226-30 (D. Nev. 2013) (same).

B.

We are not persuaded by JPMorgan’s arguments to the contrary. First, JPMorgan contends that D.C. Code § 42-1903.13 (a)(2) does not allow foreclosure on a super-priority lien to extinguish a first deed of trust, because the provision does not explicitly state that the super-priority lien is a “senior lien” and that the first deed of trust is a “junior lien.” JPMorgan does not cite authority for its contention that the use of the terms “senior lien” and “junior lien” is essential to the application of the general principle that foreclosure on a lien with higher priority extinguishes a lien with lower priority. To the contrary, our cases discussing that principle of foreclosure law do not invariably use the terms “senior lien” and “junior lien.” See, e.g., Pappas, 911 A.2d at 1234 (“[W]here a valid foreclosure sale yields proceeds insufficient to satisfy a priority lien, the result is extinguishment of subordinate liens.”) (citing cases). Moreover, there is no mention of the terms “senior lien” or “junior lien” in Title 42, Chapter 8 of the D.C. Code, which governs mortgages and deeds of trust, D.C. Code § 42-801 et seq. (2012 Repl.), or in Title 40 of the D.C. Code, which governs liens. D.C. Code § 40-101 et seq. (2012 Repl.). Under the logic of JPMorgan’s theory, the absence of such terminology would mean that foreclosure on the liens governed by these provisions could not operate to extinguish liens with lower priority, which would turn the general rule of foreclosure law on its head. Focusing more specifically on the Condominium Act, § 42-1903.13 (a)(1)(B) does not use the term “senior lien” when referring to the priority of the first deed of trust, but JPMorgan concedes that foreclosure on the first deed of trust extinguishes liens with lower priority. In sum, the terms “senior lien” and “junior lien” are simply one way of referring to liens with higher and lower priority, see supra page 16 n.4, and the absence of those terms from § 42-1903.13 (a)(2) does not affect the applicability of the general rule that foreclosure on a lien with greater priority extinguishes liens with lower priority.

Second, JPMorgan points out that condominium-assessment liens are given priority only “to the extent” of six months’ worth of assessments. D.C. Code § 42-1903.13 (a)(2). According to JPMorgan, the words “to the extent” mean that foreclosure on the super-priority lien cannot extinguish a first deed of trust. We disagree. The words “to the extent” limit the amount and size of the condominium-assessment lien that is given super-priority status. Id. at § 42-1903.13 (a)(2) (condominium-assessment lien is “prior to a [first] mortgage or [first] deed of trust . . . to the extent of the common expense assessments . . . which would have become due . . . [six] months immediately preceding” foreclosure action) (emphasis added). There is no indication that the words were intended to impose any other limit, much less to create a novel lien with higher priority and the right to foreclose, but without the ability extinguish a lower-priority lien.

Third, JPMorgan argues it would be unreasonable as a matter of policy to interpret D.C. Code § 42-1903.13 (a)(2) to permit six-month condominium-assessment liens to extinguish first mortgages or first deeds of trust. JPMorgan points out that the Condominium Act does not require that the condominium association give notice to mortgage lenders or other lienholders before foreclosure and does not permit either the property owner or the mortgage lender to redeem foreclosed property by paying the delinquent amounts.[7] According to JPMorgan, permitting condominium-assessment foreclosures to extinguish mortgage liens under such circumstances will leave mortgage lenders unable to protect their interests, which in turn will cripple mortgage lending in the District of Columbia. These are legitimate policy concerns, but Chase Plaza and Darcy point to corresponding policy arguments that support interpreting § 42-1903.13 (a)(2) to permit foreclosure on the six-month super-priority lien to extinguish a first mortgage or first deed of trust. Specifically, Chase Plaza and Darcy contend that if foreclosure on super-priority condominium-association liens did not extinguish mortgage liens, then condominium associations often might be unable to find buyers at foreclosure sales, and thus condominium associations would be unable to take prompt steps to obtain timely payment of assessments. See Report of the Joint Editorial Bd. for Unif. Real Prop. Acts, The Six-Month “Limited Priority Lien” for Association Fees Under the Uniform Common-Interest Ownership Act, at 2-6 (“Joint Editorial Bd. Report”); UCOIA § 3-116, cmt. 1, 7 U.L.A. 124 (purpose of super-priority lien is “[t]o ensure prompt and efficient enforcement of the association’s lien for unpaid assessments”); cf. Park Place E. Condo. Ass’n v. Hovbilt, Inc., 652 A.2d 781, 783 (N.J. Super. Ct. Ch. Div. 1994) (“The legislative scheme for collection of assessments . . . against individual unit owners is a recognition that such [assessments] are the financial life-blood of the Association.”). Moreover, there is support for the idea that lenders can decrease the risk that their mortgage liens will be extinguished, by among other things creating an escrow requirement. Joint Editorial Bd. Report, at 4; UCOIA § 3-116, cmt. 1, 7 U.L.A. 124; UCA § 3-116, cmt. 2, 7 U.L.A. 627.

Our role is not to resolve this policy dispute between the parties or to second-guess the policy determinations of the Council. See, e.g., Allman v. Snyder, 888 A.2d 1161, 1169 (D.C. 2005) (“we have no license to substitute our views of public policy for those of the legislature”). Rather, we simply conclude that JPMorgan has failed to establish that it would be absurd or clearly unreasonable to interpret D.C. Code § 42-1903.13 (a)(2) as permitting a condominium association’s six-month super-priority lien to extinguish a first mortgage or first deed of trust.

Finally, relying on Malakoff v. Washington, 434 A.2d 432, 435 (D.C. 1981), JPMorgan argues that the six-month condominium-assessment lien could be given super-priority status only if the legislature made it clear that it intended that result. The Council did make explicit, however, that a condominium association’s six-month lien was to be given priority over a first mortgage or first deed of trust. The issue in this case is whether that super-priority extends to extinguishing a first mortgage or first deed of trust, and Malakoff does not suggest that a clear statement is required on that topic.

IV.

Finally, JPMorgan argues that Chase Plaza’s by-laws do not permit Chase Plaza to extinguish JPMorgan’s first deed of trust. We conclude otherwise.

Under the Condominium Act, a condominium association can choose to forego its power to foreclose on property based on the owner’s failure to pay assessments. D.C. Code § 42-1903.13 (c)(1) (condominium instruments may prohibit association from non-judicial foreclosure if such foreclosure is “specifically and expressly prohibited by the condominium instruments”). This provision, however, does not seem to be relevant, because JPMorgan does not contend that Chase Plaza’s by-laws waived Chase Plaza’s right of non-judicial foreclosure. Rather, JPMorgan argues that Article XI, § (2)(D) of Chase Plaza’s by-laws provides that a first mortgage or first deed of trust is “prior to” the condominium-assessment lien. It is unclear whether such a provision in a condominium association’s by-laws could constitute an effective waiver of the association’s statutory right of priority. See D.C. Code § 42-1901.07 (“Except as expressly provided by this chapter, a provision of this chapter may not be varied by agreement and any right conferred by this chapter may not be waived.”). In any event, the Fourth Amendment to Chase Plaza’s by-laws provides that Chase Plaza may foreclose on an assessment lien “pursuant to D.C. Code Section 45-1853 [now codified at D.C. Code § 42-1903.13].” The latter provision appears to authorize Chase Plaza to rely on the rights conferred upon it under § 42-1903.13 (a)(2). To the extent that the Fourth Amendment and Article XI, § (2)(D) of the by-laws appear to contradict each other, the D.C. Code provides a rule to resolve any conflict. In the event of a conflict among condominium instruments, “a construction consistent with [Chapter Nineteen of Title 42] controls in all cases over any inconsistent construction.” D.C. Code § 42-1902.07. We therefore must construe the by-laws as a whole as permitting Chase Plaza to exercise its rights under the Condominium Act to foreclose on its six-month super-priority lien and to thereby extinguish the first deed of trust.

In sum, we hold that a condominium association can extinguish a first deed of trust by foreclosing on its six-month super-priority lien under D.C. Code § 42-1903.13 (a)(2). We therefore reverse the trial court’s grant of summary judgment to JPMorgan and remand for further proceedings.[8]

So ordered.

[1] After Chase Plaza deducted the six months of unpaid condominium assessments, the interest on the unpaid assessments, and various expenses associated with the foreclosure sale, the remaining balance from the foreclosure-sale proceeds was $478. Chase Plaza forwarded the $478 to MERS as the nominee of record under the first deed of trust, but that money was returned to Chase Plaza.

[2] JPMorgan also claims to be a successor in interest under the deed of trust, because MERS, a beneficiary and nominee under the deed of trust, transferred its interest to Washington Mutual, which had been purchased by JPMorgan. Chase Plaza and Darcy argue, however, that it is unclear whether JPMorgan obtained an interest in the deed of trust, because (1) it is unclear to which of several Washington Mutual entities MERS transferred its interest, (2) JPMorgan only purchased some, not all, of the assets of Washington Mutual Bank, and (3) JPMorgan’s purchase occurred before the date of MERS’s transfer of its interest in the deed of trust to Washington Mutual. JPMorgan, however, can seek to protect its interests under the promissory note even if it is not a successor in interest under the deed of trust, because “the rights under the Deed of Trust follow the Note.” Grant II, 2011 WL 4566135, at *4; see also Smith v. Wells Fargo Bank, 991 A.2d 20, 29-30 n.19 (D.C. 2010) (“The transfer of the note carries with it the security, without any formal assignment or delivery, or even mention of the latter.”) (internal quotation marks omitted). Because JPMorgan’s interest under the promissory note is sufficient to confer standing on JPMorgan, we need not address whether JPMorgan obtained an interest in the deed of trust through Washington Mutual. Chase Plaza and Darcy also raise other challenges to the validity of JPMorgan’s alleged interest in the unit, including that JPMorgan cannot assert any interest in the unit against Chase Plaza and Darcy because JPMorgan failed to properly record documents relating to the transactions giving rise to JPMorgan’s alleged interest. We do not view those contentions as going to JPMorgan’s standing, and in light of our disposition of the case on the merits, we see no need at this juncture to address the additional arguments raised by Chase Plaza and Darcy.

[3] As a precaution, we are sending a copy of this opinion to the bankruptcy judge and the bankruptcy trustee in the Washington Mutual, Inc. bankruptcy proceeding.

[4] A “junior lien” is a lien that “is subordinate to one or more other liens on the same property[,]” and a “senior lien” is a lien that “has priority over liens on the same property.” Black’s Law Dictionary 1063, 1064 (10th ed. 2014); see also, e.g., Indiana Lawrence Bank v. PSB Credit Servs., Inc., 706 N.E.2d 570, 574 n.6 (Ind. Ct. App. 1999); City of Chanute v. Polson, 836 P.2d 6, 10 (Kan. Ct. App. 1992).

[5] We also note a recent report of the Joint Editorial Board for Uniform Property Acts, which includes representatives of the Uniform Law Commission, the American Bar Association Real Property, Trust and Estate Law Section, and the American College of Real Estate Lawyers. That report concludes that foreclosure pursuant to the six-month super-priority lien under the UCOIA is properly understood to extinguish a first mortgage lien, leaving the buyer at the foreclosure sale with clear title to the property. Report of the Joint Editorial Bd. for Unif. Real Prop. Acts, The Six-Month “Limited Priority Lien” for Association Fees Under the Uniform Common Interest Ownership Act, at 8-10 (June 1, 2013).

[6] “[O]rdinarily, the views of a subsequent legislature form a hazardous basis for inferring the intent of an earlier one.” Hargrove v. District of Columbia, 5 A.3d 632, 637 (D.C. 2010) (brackets and internal quotation marks omitted). We do note, however, that within a year of the enactment of the provision creating the super-priority lien, the Council considered a proposal to repeal the provision. D.C. Council, Report on Bill 9-240, at 4 (Dec. 12, 1991). In support of the proposal, the Department of Consumer and Regulatory Affairs (“DCRA”) submitted a report contending that the super-priority lien provision created an “obvious threat [to lending institutions] of the use of foreclosure proceedings to collect unpaid assessments.” Statement of Aubrey H. Edwards on Bill 9-240, Dir., DCRA, at 9 (Oct. 30, 1991). The DCRA report further noted that the provision could have “a chilling effect on the availability of condominium mortgage loans.” Id. After considering the DCRA report, the Council declined to repeal the provision creating the super-priority lien, because “[n]o adverse effect on lending” had occurred in states that had enacted such a provision. D.C. Council, Report on Bill 9-240, at 4.

[7] With respect to the issue of notice, it appears that Chase Plaza did give notice of foreclosure to all parties listed on the first deed of trust, but JPMorgan did not receive notice because it had failed to record its subsequently obtained interest in the unit. We also note that JPMorgan has not argued that the lack of a notice requirement renders D.C. Code § 42-1903.13 (a)(2) unconstitutional either facially or as applied to JPMorgan in this case. We therefore have no occasion to address those issues.

[8] Among the issues that remain to be resolved on remand is JPMorgan’s claim that the foreclosure sale should be invalidated because the purchase price was unconscionably low.

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HSBC vs. MILLER | NYSC – Plaintiff 2nd Attempt to Foreclose…This Court Finds NO Reference to Def. Miller’s Obligation in the Pooling and Servicing Agreement…PSA & Lost Note Goes Down in Flames

HSBC vs. MILLER | NYSC – Plaintiff 2nd Attempt to Foreclose…This Court Finds NO Reference to Def. Miller’s Obligation in the Pooling and Servicing Agreement…PSA & Lost Note Goes Down in Flames

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SULLIVAN

HSBC BANK USA, NATIONAL ASSOCIATION, A3
TRUSTEE FOR WELLS FARGO ASSET SECURITIES
CORPORATION, MORTGAGE ASSET-BACKED PASS
THROUGH CERTIFICATES SERIES 2007-PA2

Plaintiffs

against

JEFFREY F. MILLER,
CHASE BANK USA, N.A.,
GEMINI CAPITAL GROUP, LLC,
Defendants

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