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Tag Archive | "Bank of New York Mellon"

Does Pauley’s BNYM ruling spell new liability for MBS trustees?

Does Pauley’s BNYM ruling spell new liability for MBS trustees?


Alison Frankel-

Beth Kaswan of Scott + Scott has the fervor of a pioneer when she talks about the implications of U.S. District Judge William Pauley‘s ruling Tuesday that her client, a Chicago police officers’ pension fund, can proceed with some claims that Bank of New York Mellon violated its duty to Countrywide mortgage-backed securities investors under the federal Trust Indenture Act. “Judge Pauley is the first judge to say the Trust Indenture Act, in existence since 1939, does apply in this type of circumstance to mortgage-backed securities,” Kaswan told me Wednesday. “That means investors can sue trustees, even if they can’t cobble together 25 percent” of the voting rights in any particular trust — a prerequisite to suing under the pooling and servicing agreements governing most MBS trusts.

Kaswan, who said her firm was the first to assert the federal law against an MBS trustee, believes Pauley’s 19-page decision offers a significant new route to damages for MBS investors. The Manhattan federal judge ruled that the Chicago fund only has standing to bring claims for the trusts in which it invested, reducing the number of Countrywide MBS trusts in the case from 530 to 26. But he also said that investors in those 26 trusts can sue BNY Mellon for allegedly failing to notify certificateholders that Countrywide and Bank of America supposedly breached their obligations to the trusts and for failing to take action on those breaches.

[ON THE CASE -REUTERS]

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Bank of NY Mellon must face lawsuit on Countrywide

Bank of NY Mellon must face lawsuit on Countrywide


first to let investors in mortgage-backed securities pursue claims against a trustee under the 1939 federal Trust Indenture Act.

Reuters-

A federal judge rejected Bank of New York Mellon Corp’s bid to dismiss a lawsuit by investors over its role as trustee for mortgage-backed securities that led to an $8.5 billion settlement by Bank of America Corp.

U.S. District Judge William Pauley in Manhattan said on Tuesday that bondholders who invested in 26 trusts alleged to have contained risky mortgage loans from the former Countrywide Financial Corp may pursue claims against Bank of New York Mellon. He dismissed a variety of other claims.

[REUTERS]

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Beaumont v. BANK OF NEW YORK MELLON | FL 5DCA “BONY failed to prove who lost the note and when it was lost, …and produced no evidence of ownership”

Beaumont v. BANK OF NEW YORK MELLON | FL 5DCA “BONY failed to prove who lost the note and when it was lost, …and produced no evidence of ownership”


MARC D. BEAUMONT, Appellant,
v.
BANK OF NEW YORK MELLON, etc., Appellee.

Case No. 5D10-3471.
District Court of Appeal of Florida, Fifth District.
Opinion filed February 17, 2012.

Marc D. Beaumont, Port Orange, pro se.

Todd A. Armbruster of Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, for Appellee.

PER CURIAM.

Marc D. Beaumont appeals a final summary judgment entered by the trial court on a claim to foreclose a residential mortgage and recover on a promissory note executed in connection with the mortgage. We reverse.

The final summary judgment in this case was entered in favor of Novastar Home Mortgage, Inc. (“Novastar”), a nonparty to the suit because of its prior withdrawal from the case. It is fundamental error to enter judgment in favor of a nonparty. Beseau v. Bhalani, 904 So. 2d 641 (Fla. 5th DCA 2005); Rustom v. Sparling, 685 So. 2d 90 (Fla. 4th DCA 1997). The defect, which is jurisdictional, can be raised by this Court sua sponte. Dep’t of Envtl. Prot. v. Garcia, 36 Fla. L. Weekly D1664b (Fla. 3d DCA Aug. 3, 2011).

The judgment would also have to be reversed even if entered in favor of appellee, The Bank of New York Mellon, as Successor Trustee Under Novastar Mortgage Funding Trust 2005-3 (“Mellon”). Mellon sought in the complaint to reestablish the note and recover on it. See § 673.3091, Fla. Stat. (2010). This required Mellon to show it was entitled to enforce the note when it lost the instrument, or that it directly or indirectly acquired ownership from a person who was entitled to enforce the instrument when loss of possession occurred. § 673.3091(1), Fla. Stat.[1] Mellon failed to prove who lost the note and when it was lost, offered no proof of anyone’s right to enforce the note when it was lost, and produced no evidence of ownership, due to the transfer from Novastar to Mellon.[2] See Duke v. HSBC Mortg. Servs., LLC, 36 Fla. L. Weekly D2569a (Fla. 4th DCA Nov. 23, 2011). The trial court was also required to address the issue of providing adequate protection to Beaumont against loss that might occur by reason of a claim by another person to enforce the instrument. § 673.3091(2), Fla. Stat. If Mellon has, in fact, found the note, it must produce it prior to judgment. Gee v. U.S. Bank Nat’l Ass’n, 72 So. 3d 211, 212 (Fla. 5th DCA 2011); Perry v. Fairbanks Capital Corp., 888 So. 2d 725, 726 (Fla. 5th DCA 2004); see also Feltus v. U.S. Bank Nat’l Ass’n, 37 Fla. L. Weekly D253a (Fla. 2d DCA Jan. 27, 2012).

Mellon also argues that Beaumont has waived the lack of “standing” to enforce the note because of the failure to assert this as an affirmative defense. Generally, the failure to raise standing as an affirmative defense operates as a waiver. Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th DCA 2005) (holding lack of standing is an affirmative defense that must be raised by defendant and failure to raise it generally results in waiver). Standing involves the right to enforce the note and must exist when suit is filed. See, e.g., McLean v. JP Morgan Chase Bank Nat’l Ass’n, 36 Fla. L. Weekly D2728a (Fla. 4th DCA Dec. 14, 2011); Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618 (Fla. 5th DCA 2010). There is no evidence showing that Beaumont was on notice prior to the time his answer was filed that ownership of the note had been transferred from Novastar to Mellon. In fact, the claimed transfer, alleged to have occurred on the day suit was filed, was either concealed by Novastar for more than three years while it continued to pursue the action, or Novastar backdated the assignment it finally produced on July 23, 2010, as justification for substituting Mellon as plaintiff. Under these circumstances, Beaumont may raise lack of standing when suit was filed as a defense. See Boston Hides & Furs, Ltd. v. Sumitomo Bank, Ltd., 870 F. Supp. 1153, 1161 n.6 (D. Mass. 1994) (holding banks were not precluded from raising affirmative defense of fraud for first time on summary judgment in action alleging wrongful dishonor of letter of credit, where banks did not discover information suggesting fraud until almost one year of discovery). Furthermore, Mellon must prove its right to enforce the note as of the time the summary judgment is entered, even if Beaumont had waived the right to challenge the bank’s standing as of the date suit was filed. Venture Holdings & Acquis. Group, LLC v. A.I.M. Funding Group, LLC, 75 So. 3d 773 (Fla. 4th DCA 2011). Its failure to do so would require this Court to reverse the summary judgment entered on the note and mortgage, even if judgment had been entered in favor of Mellon.

REVERSED.

TORPY, PALMER and COHEN, JJ., concur.

[1] A negotiable instrument is enforceable by: (1) the holder of the instrument, (2) a nonholder in possession who has the rights of a holder, or (3) a person not in possession of the instrument who is entitled to reestablish a lost, destroyed or stolen instrument pursuant to section 673.3091, or who has paid or accepted a draft by mistake as described in section 673.4181. § 673.3011, Fla. Stat.

[2] The record contains a copy of an assignment of the note from Novastar to Mellon, but the document was never offered into “evidence,” by being attached to an affidavit for purposes of authentification. As such, it is not competent evidence of the assignment and cannot be considered in ruling on Mellon’s motion. See, e.g., Morrison v. U.S. Bank, N.A., 66 So. 3d 387, 387 (Fla. 5th DCA 2011) (reversing summary judgment of foreclosure where defendant asserted she had not received a notice of default as required by mortgage, and bank had simply filed an unauthenticated notice letter).

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Ohio Appeals Court Judge Dissents Because No Evidence BONY At Any Point Possessed The Note

Ohio Appeals Court Judge Dissents Because No Evidence BONY At Any Point Possessed The Note


IN THE COURT OF APPEALS
NINTH JUDICIAL DISTRICT

BANK OF NEW YORK MELLON TRUST
COMPANY NATIONAL
Appellee

v.

CORNELIU MIHALCA, et al.

EXCERPT:

BELFANCE, P. J. CONCURS IN PART, AND DISSENTS IN PART, SAYING:

{¶ 30} I concur with the majority’s conclusion that the trial court erred in granting summary judgment to the Bank. However, I respectfully dissent from the majority’s judgment that the trial court correctly denied Mr. and Mrs. Mihalca’s motion for summary judgment.

{¶ 31} In the vast majority of cases involving foreclosures, it is the bank that moves for summary judgment. As such it must demonstrate an absence of material fact as to all of the elements of its claim. Thus, it makes sense that if when the bank moves for summary judgment it cannot establish that it is the real party in interest, a genuine issue of material fact remains preventing the bank from succeeding on summary judgment. See U.S. Bank, N.A. v. Richards, 189 Ohio App.3d 276, 2010-Ohio-3981, ¶ 13 (9th Dist.). However, when the defendant in a foreclosure case moves for summary judgment, the defendant may challenge the existence of evidence which is necessary for the bank to prevail on its claim and upon which the bank has the burden of proof.

{¶ 32} In this case, the Mihalcas filed a motion for summary judgment in which they claimed that the Bank had no evidence that it was the holder of the note. The Bank had the ultimate burden to demonstrate it was the holder of the note, and in reply to the Mihalcas’ summary judgment motion, it had the reciprocal burden to present evidence establishing its entitlement to recover on the note. See Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. * * * However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

(Emphasis sic.) Id.

{¶ 33} In the Mihalcas’ answer to the complaint, they denied that the Bank was the holder of the note. Moreover, in their motion for summary judgment, the Mihalcas did not simply make a conclusory assertion that the Bank could not prove its case; they specifically asserted that the Bank could not prove its case because it had not established that it was the holder of the note. They pointed to evidence that, for a number of months their counsel demanded the production and inspection of the original note and that notwithstanding, the note had not been produced. Attached to the Mihalcas’ response to the Bank’s summary judgment motion and its cross-motion for summary judgment was an affidavit by the Mihalcas’ counsel. Accompanying the affidavit, was a letter dated August 20, 2010, from the Bank’s counsel to the Mihalcas’ counsel responding to the Mihalcas’ demand for production of the note. Even viewing this letter in the light most favorable to the Bank, the letter only allows one to conclude that counsel for the Bank is going to ask the Bank for the note and that counsel believes that the Bank has possession of the original note. The letter does not affirmatively state that the Bank has possession of it. The affidavit of the Mihalcas’ counsel avers that the parties again discussed production of the original note on September 27, 2010. At that time, the Bank’s counsel stated that “they were still `looking for’ the original note.” By November 9, 2010, at the time of the Bank’s response to the Mihalcas’ motion for summary judgment, the Bank presented no evidence that it possessed or had ever possessed the original note. In addition, the Mihalcas noted that the Bank’s affidavit in support of its own summary judgment motion was improper evidence and as such, there was no proper summary judgment evidence from the Bank before the trial court on this issue.

{¶ 34} The Bank failed to meet its reciprocal burden of production, as it failed to produce evidence that demonstrated it was the holder or to produce some evidence that at least demonstrated the existence of a genuine issue of material fact as to its status. Notably, the Bank did not produce any evidentiary materials in response to the Mihalcas’ motion. Thus, it did not meet its Dresher burden, and there was no genuine dispute of material fact as to whether it was the holder of the note. Due to its failure to properly respond to the Mihalcas’ motion for summary judgment, Mr. and Mrs. Mihalca were entitled to have summary judgment in their favor. See generally HSBC Bank USA, N.A. v. Thompson, 2nd Dist. 23761, 2010-Ohio-4158. Under the circumstances, the Bank could have produced an affidavit asserting that it did possess the note or alternatively, it could have sought an extension of time to respond to the Mihalcas’ summary judgment motion so it could have then submitted proper summary judgment evidence in response to the Mihalcas’ motion.

{¶35} I can only conclude that the Bank has failed to meet its burden, as there was no
evidence before the trial court that the Bank at any point in time possessed the original note. The
Mihalcas were entitled to have summary judgment granted in their favor. Accordingly, I
respectfully dissent from the majority’s resolution of this issue.

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In Re: ALGER | MA BK Court Denies Countrywide & BONY’s Motion For Summary Judgment “NOTICE of RIGHT TO CANCEL”

In Re: ALGER | MA BK Court Denies Countrywide & BONY’s Motion For Summary Judgment “NOTICE of RIGHT TO CANCEL”


UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
CENTRAL DIVISION

 In re:
JAMES E ALGER, JR. and
DEBORAH J ALGER
Debtors

 

JAMES E. ALGER, JR. and DEBORAH J. ALGER, Plaintiffs,

v.

COUNTRYWIDE HOME LOANS, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-11CB MORTGAGE PASS-THROUGH CERTIFICATES, 11CB, Defendants.

Excerpt:

Each acknowledgment form that the Algers signed contained the following language: “The undersigned each acknowledge receipt of two copies of NOTICE of RIGHT TO CANCEL and one copy of the Federal Truth in Lending Disclosure Statement.” It is unclear whether the Algers acknowledged that each of them received two copies for a total of four or whether they each acknowledged receipt of two copies in total. In analyzing the identical acknowledgment language in In re Cromwell, Judge Hillman, too, found the language ambiguous:

The placement of the word “each” before “acknowledge” renders the phrase susceptible to two meanings. First, that the Debtors acknowledged each receiving two copies as the Defendants[] assert, or second, that they each acknowledged receipt of a total of two copies as the Debtors suggest. While I understand that Countrywide intended the former as that is what the law required, the average consumer would not have necessarily known that. 2011 WL 4498875, at *17. The existence of this ambiguity neutralizes any presumption created by the acknowledgment in favor of delivery of the requisite number of Notices. See id. (resolving the ambiguity “against the drafter of the Acknowledgment such that it did not create a presumption of adequate delivery of a total of four copies”).

In the absence of a presumption of adequate delivery, the burden shifts to the defendants to prove that the Algers each received two copies of the Notice for a total of four for the couple. See id. While the defendants rely on the deposition testimony of Ms. Manugian as evidence of her general practice during closings to establish that the Algers received four copies, the Algers have attested through their affidavits that the first time their loan file was opened after the closing it contained a total of three Notices. The question of how many copies of the Notice the Algers received remains a genuine and material fact in dispute. The defendants’ motion for summary judgment is therefore DENIED.

[…]

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Whistleblower Records Shed Light On BNY Mellon Case

Whistleblower Records Shed Light On BNY Mellon Case


We all would agree that all the banks share the same protocols in how they conduct business. All frauds.

HuffPO-

Confidential whistleblower documents that helped spark a massive state and federal investigation into how Bank of New York Mellon Corp charged pension funds for currency exchange, provide a rare window into how a bank insider aided a lawsuit against the bank.

The information provided by whistleblower Grant Wilson, who worked at BNY Mellon, included a detailed analysis of how the bank allegedly provided “fictitious” foreign-currency costs for pension funds.

The analysis included a step-by-step guide to how currencies were traded and internal profits generated by the bank, according to documents seen by Reuters. A memo detailing fellow employees also was provided.

[HUFFINGTONPOST]

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KCSG Television – Utah Federal Judges Decisions Conflict in ReconTrust Utah Home Foreclosure Actions

KCSG Television – Utah Federal Judges Decisions Conflict in ReconTrust Utah Home Foreclosure Actions


There are some judges that get it and some that maybe still do but side the other way!

KCSG-

Utah senior federal Judges Dee Benson and Bruce Jenkins have ruled Bank of America’s foreclosure arm, ReconTrust Company, N.A. (NYSE: “BAC”) may not be qualified to perform non-judicial foreclosures in Utah. However, this week senior federal Judge David Sam ruled that ReconTrust is operating under the National Bank Act regulated by the Office of the Comptroller of the Currency (OCC), is a trustee under the Texas law where ReconTrust is located rendering Utah Code 57-1-21(3) inapplicable. Ruling

The ruling comes in a case filed by attorney John Christian Barlow, in which ReconTrust is being sued by Utah homeowner Garry Franklin Garrett and accused of conducting an unlawful foreclosure sale because ReconTrust is not a qualified trustee under Utah Law.

[KCSG]

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Mortgage Fraud: Bank of America, Bank of New York Mellon, Countrywide Home Loans Servicing, Law Offices of David Stern, Cheryl Samons

Mortgage Fraud: Bank of America, Bank of New York Mellon, Countrywide Home Loans Servicing, Law Offices of David Stern, Cheryl Samons


Mortgage Fraud

Bank of America
Bank of New York Mellon
Countrywide Home Loans Servicing
Law Offices of David Stern
Cheryl Samons

Action Date: December 10, 2011
Location: West Palm Beach, FL

In a very unusual move, the FL Supreme Court rejected the settlement in the PINO case last week and will issue a decision about fraudulent mortgage documents.

Florida’s Fourth District Court of Appeals had certified a procedural foreclosure question to the Supreme Court, stating: “This is a question of great public importance” since “many, many mortgage foreclosures appear tainted with suspect documents.”

At the trial court level, PINO’s attorneys had asked the court to sanction BNY Mellon by denying it the equitable right to foreclose the mortgage at all. The district court observed that if this sanction were available after a voluntary dismissal, “it may dramatically affect the mortgage crisis in this state.”

The Fourth District Court of Appeals decision seemed to recognize that very frequently, bank lawyers used dismissals when homeowners raised a question regarding the legitimacy of the documents filed by the banks.

Advocates for homeowners were encouraged by the Supreme Court’s action denying the settlement as the final resolution.

So who exactly is NOT happy?

Perhaps the preparers and signers of the two mortgage assignments in the PINO case.

One of the Assignments was prepared by the Law Offices of David J. Stern, Esq. This is signed by Stern’s office manager, Cheryl Samons who signs as an Asst. Sect. of MERS.

This is dated September 19, 2008 – though not filed until February 18, 2009.

The Lis Pendens (beginning of the foreclosure in judicial states) was dated October 8, 2008.

This is an assignment of the Mortgage and the Note to:

The Bank of New York Mellon F/K/A The Bank of New York as Trustee for the Certificateholders CWALT, Inc. Alternative Loan Trust 2006-OC8.

For anyone unfamiliar with Cheryl Samons many acts in the Law Offices of David Stern (a law firm that spent a lot of $$ entertaining officials from FANNIE), the sworn statements from paralegals and notaries from the investigation of then Asst. A.G.s June Clarkson & Theresa Edwards (those overly aggressive FORMER prosecutors) are available for review at StopForeclosureFraud.com.

According to these sworn statements, Samons signed thousands of documents each week, allowed other people to sign her name, did not read what she signed, signed other names, etc. She did these things because her boss, David Stern, was very generous (see the articles by Andy Kroll in Mother Jones for more details on this).

The second assignment was notarized July 14, 2009 and filed July 29, 2009.

It seems they forgot all about the first assignment because once again it is an assignment from MERS to the same trust. This Assignment was also prepared by the Law Offices of David Stern. (If the first assignment was effective, of course, MERS had nothing to convey).

The signer this time was Melissa Viveros in Tarrant County, TX.

While she signs as a MERS officer, Viveros in many other reported cases appears as an officer of Countrywide Home Loans Servicing, N/K/A BAC Home Loans Servicing.

So, once again, Bank of America (then the parent of BAC Home Loans Servicing) and Bank of New York Mellon have the most to lose in the short run – and in the long run, investors in CWALT and CWABS trusts.

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NY Judge Slams Steven Baum’s Elpiniki Bechakas MERS Assignment “These actions undoubtedly raise the appearance of impropriety”

NY Judge Slams Steven Baum’s Elpiniki Bechakas MERS Assignment “These actions undoubtedly raise the appearance of impropriety”


Decided on October 28, 2011

Supreme Court, Queens County

 The Bank of New York Mellon F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWABS, INC., ASSETBACKED CERTIFICATES, SERIES 2006-IMI 400 Countrywide Way Simi Valley, CA 93065, Plaintiff,

against

Nancy Martinez, ET.AL., Defendant.

21097/09

Attorney for Plaintiff:
Megan B. Szeliga, Esq.
Steven J. Baum, P.C.
220 Northpointe Parkway – Suite G
Amherst, New York 14228

Attorney for Defendant:
Steven Beispel, Esq.
20 W. 86 Street
New York, New York 10024

Phyllis Orlikoff Flug, J.

[*2]The following papers numbered 1 to 5 read on this motion

Notice of Motion1 – 2

Affirmation in Opposition3

Reply Affirmation (2)4 – 5

Defendant, Nancy Martinez, moves for summary judgment dismissing plaintiff’s complaint as asserted against her.

This is an action to foreclose a mortgage on the real property located at 37-54 98th Street, in the County of Queens, City and State of New York.

On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case . . .” (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Defendant contends she is entitled to judgment on the ground that plaintiff lacked standing at the time the action was commenced. Defendant, however, has waived this defense as she did not raise it in her answer or in a pre-answer motion to dismiss (See HSBC Bank, USA v. Dammond, 59 AD3d 679, 680 [2d Dept. 2009]). Notably, defendant has also failed to move to amend her answer to assert this as a defense (See Aurora Loan Services, LLC v. Thomas, 70 AD3d 986, 987 [2d Dept. 2010]).

Defendant also contends she is entitled to summary judgment and dismissal of the action due to a conflict of interest on behalf of plaintiff’s attorneys. An attorney employed by Steven J. Baum, the law firm representing plaintiff, Elpiniki Bechakas, executed an assignment in favor of plaintiff, on behalf of Mortgage Electronic Registration Systems (“MERS”), a defendant in this action.

These actions undoubtedly raise the appearance of impropriety. Indeed, these practices were the subject of the October 6, 2011 settlement agreement between Steven J. Baum and the United States Attorney’s Office for the Southern District of New York. Nevertheless, defendant has failed to establish that these actions breached a specific duty to plaintiff and require a dismissal of the action as a matter of law (See, e.g., Swift v. Ki Young Choe, 242 AD2d 188, 192 [1st Dept. 1988]). [*3]

Accordingly, plaintiff is hereby ordered to submit waivers of any potential conflict of interest from plaintiff, Bank of New York, and MERS no later than December 2, 2011. In addition, plaintiff shall refrain from relying on any documents that raise the appearance of impropriety, including the aforementioned assignment, in its prosecution of this action.

Defendant’s motion for summary judgment is denied, with leave to renewal, upon plaintiff’s failure to comply with this order or upon the completion of discovery and on the presentment of proper papers.

October 28, 2011 ____________________

J.S.C.

 

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In RE: COLLINS | 6th BAP “whether either Litton or BoNY was the holder of a fully and properly indorsed note, MERS assignment day after the debtor filed bankruptcy”

In RE: COLLINS | 6th BAP “whether either Litton or BoNY was the holder of a fully and properly indorsed note, MERS assignment day after the debtor filed bankruptcy”


BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT

In re: ELIZABETH R. COLLINS,

Debtor.
No. 10-8085

_____________________________________

J. JAMES ROGAN, Trustee,

Appellant,

v.

LITTON LOAN SERVICING, L.P.,
THE BANK OF NEW YORK, MELLON FKA
THE BANK OF NEW YORK AS SUCCESSOR
TO JP MORGAN CHASE BANK, N.A., AS
TRUSTEE FOR THE BENEFIT OF THE
CERTIFICATE HOLDERS OF POPULAR, ABS,
INC. MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2005-3,

AIG FEDERAL SAVINGS BANK DBA
WILMINGTON FINANCE,

CITIBANK, NA, and

GMAC MORTGAGE LLC,

Appellees.

Appeal from the United States Bankruptcy Court
for the Eastern District of Kentucky
Bankruptcy Case No. 10-50990; Adv. Proceeding No. 10-05065

EXCERPT:

STEVEN RHODES, Bankruptcy Appellate Panel Judge. J. James Rogan, the trustee in this
chapter 7 case, appeals an opinion and order of the bankruptcy court dismissing his complaint. The
complaint sought a declaratory judgment to determine the validity, extent, and priority of liens on
the real property of the debtor, Elizabeth Collins, held by defendants Litton Loan Servicing, Bank
of New York, GMAC Mortgage, and Wilmington Finance. The trustee also appeals an opinion and
order of the bankruptcy court granting a motion to vacate the default judgment entered against
Wilmington Finance.

For the reasons that follow, as to defendants Litton Loan Servicing and Bank of New York,
the Panel vacates the dismissal and remands the matter for further proceedings to determine who was
the holder of the first mortgage on the date of filing, and if it was either Litton Loan Servicing or
Bank of New York, then whether either was the holder of a fully and properly indorsed note.

[…]

On the day after the first mortgage was recorded, February 5, 2005, Wilmington Finance
assigned the mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”). On June 16,
2005, this assignment was recorded. (Addendum to Br. of Bank of New York, February 16, 2011,
app. case no. 10-8085, ex. 2.)

The record also includes an assignment dated March 26, 2010, the day after the debtor filed
bankruptcy. MERS assigned this mortgage to the Bank of New York Mellon f/k/a The Bank of New
York, as successor to JPMorgan Chase Bank, N.A. as trustee for the benefit of the certificate holders
of Popular ABS, Inc. Mortgage Pass-Through Certificates Series 2005-3 c/o Litton Loan Servicing.
(bankr. claim 1-1.) On April 7, 2010, which was twelve days after the debtor filed bankruptcy, this
assignment was recorded. Thus, on the day that the debtor filed bankruptcy, it appears that neither
Bank of New York nor Litton Loan Servicing held any interest in the first mortgage. Inexplicably
however, the debtor listed Bank of New York/Litton Loan Servicing on schedule D as the secured
creditor holding the first mortgage. (bankr. dkt. #1.) Schedule D appears to have been filed on the
date of the petition. The record does not provide an explanation for how the debtor would have
known that Bank of New York/Litton Loan Servicing would be the secured creditor prior to the
assignment.

[…]

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UT Class Action Lawsuit Alleging Fair Debt Collection Violations to Proceed Against Bank of America and Recontrust Company

UT Class Action Lawsuit Alleging Fair Debt Collection Violations to Proceed Against Bank of America and Recontrust Company


KCSG-

US District Judge Dee Benson ruled Tuesday that a class action lawsuit can proceed against ReconTrust and Bank of America (NYSE: “BAC”).

.

IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH,

CENTRAL DIVISION

JEREMY COLEMAN, DWAYNE WATSON, SAMUEL ADAMSON, ETHNA LYNCH,

Plaintiffs,

vs.

RECONTRUST COMPANY, N.A.,

[…]

[ipaper docId=67510230 access_key=key-enk4f8ay8gbs1ez6opf height=600 width=600 /]

 

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Breaking: The New York attorney general is suing Bank of New York Mellon, alleging fraud in currency transactions

Breaking: The New York attorney general is suing Bank of New York Mellon, alleging fraud in currency transactions


WSJ-

New York’s attorney general sued Bank of New York Mellon Corp. in state court Tuesday, alleging that one of the world’s largest custody banks defrauded pension funds when it improperly charged for currency transactions.

In a civil complaint, New York Attorney General Eric Schneiderman says he is seeking nearly $2 billion—the amount that the bank had generated in profits in the alleged scheme.

The lawsuit is the latest legal threat to hit BNY Mellon over how it processed currency transactions. In August, attorneys general in Virginia and Florida sued the bank in legal claims that also allege improper pricing for currency transactions.

In the complaint, Mr. Schneiderman alleges that the bank fraudulently charged clients for …

[WALL STREET JOURNAL]

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Bank of New York: We have no fiduciary duty to MBS investors

Bank of New York: We have no fiduciary duty to MBS investors


Thomson Reuters News & Insight-

When New York attorney general Eric Schneiderman sued Bank of New York Mellon in August, the AG asserted that the Countrywide mortgage-backed securitization trustee had breached its duty to MBS investors. “As trustee, BNYM owed and owes a fiduciary duty of undivided loyalty,” said the AG’s suit, which was filed as a counterclaim in BNY Mellon’s case seeking approval of the proposed $8.5 billion Bank of America settlement with MBS investors. “[BNYM] breached that duty to [investors’] detriment and disadvantage, by failing to notify them of issues regarding the quality of loans underlying their securities.”

But according to BNY Mellon, it had no such duty.

The bank’s lawyers at Mayer Brown and Dechert filed a 14-page brief this week outlining its interpretation of the responsibilities of an MBS securitization trustee. The filing came at the direction of Manhattan federal Judge William Pauley, who’s deciding whether the BofA MBS settlement should be heard in state court, where BNY Mellon filed it, or in federal court, where key objectors to the proposed settlement want it to proceed. Pauley was concerned with the “securities exception” to the Class Action Fairness Act, which could end up guiding his decision on the forum question. For BNY Mellon, however, any discussion of its trustee responsibilities is fraught with danger. It’s already facing the New York AG’s claims, and several other state attorneys general have threatened similar actions. MBS investors, meanwhile, are pushing BNY Mellon (and other securitization trustees) to bring put-back claims, with the implied threat that investors will take action against trustees unless they do.

[Thomson Reuters News & Insight]

[ipaper docId=66985512 access_key=key-2iyagl1klocb90g85gzh height=600 width=600 /]

 

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Oregon Judge Panner issues TRO Against BONY, ReconTrust Because the Presence of MERS Demonstrates Non-Compliance w/ OTDA

Oregon Judge Panner issues TRO Against BONY, ReconTrust Because the Presence of MERS Demonstrates Non-Compliance w/ OTDA


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BILL R. LEEP and
JACQUELINE WATTS LEEP, Plaintiffs.

v.

THE BANK OF NEW YORK MELLON
and RECONTRUST COMPANY, N.A., Defendants.

EXCERPT:

Because of the alleged imminent foreclosure sale, and because the presence of MERS demonstrates a high probability that defendants did not comply with the recording requirements of the Oregon Trust Deed Act, I grant plaintiff’s request for a temporary restraing order (#3).

[ipaper docId=65592470 access_key=key-14q2h941a6sfvvfi6z1 height=600 width=600 /]

 

 

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Homeowners Sue to Block BofA/BNY Deal; Details

Homeowners Sue to Block BofA/BNY Deal; Details


Abigail C. Field-

The $8.5 billion settlement that Bank of New York and Bank of America hope will resolve all (or almost all) mortgage backed securities claims between them has faced a lot of opposition. The attorneys general of New York and Delaware oppose the deal, as do various investors not involved in the deal negotiations. Now a new, completely different type of opposition has surfaced: homeowners whose loans are funding the securities involved in the BNY-BofA settlement.

On Tuesday, four homeowners whose loans were securitized into trusts in the settlement both sued to block the settlement in federal court and asked the New York State Court judge weighing the settlement for permission to intervene on behalf of all the borrowers whose loans are in the trusts and give the court their perspective on the BNY-BofA settlement.

Homeowners Sue to Stop the $8.5 Billion BofA-BoNY Settlement

[REALITY CHECK]

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BoNY Mellon CEO Robert Kelly steps down

BoNY Mellon CEO Robert Kelly steps down


Aug 31 (Reuters) -

Bank of New York Mellon Corp said Robert Kelly, who has held the company’s top job since 2008, has stepped down as chairman and chief executive officer, following differences in approach to managing the company.

The company, one of the world’s largest custody banks, said it named board member Gerald Hassell as chairman and CEO, effective immediately.

[REUTERS]

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Homeowners Seek to Block Bank of America Settlement

Homeowners Seek to Block Bank of America Settlement


NYTIMES-

The legal onslaught continues for Bank of America.

On Tuesday, several homeowners filed suit in the Federal District Court in Manhattan seeking to block a proposed $8.5 billion settlement between Bank of America and major mortgage investors including BlackRock, Pimco and the Federal Reserve Bank of New York. The suit claims that the deal fails to address widespread servicing problems and would actually speed up foreclosures.

It’s the latest opposition to the $8.5 billion settlement, which was hammered out in June by Bank of America, 22 large investors in soured mortgage-backed securities and Bank of New York Mellon, the trustee for those securities. Smaller investors have already filed legal actions opposing the deal, as has the New York state attorney general, Eric T. Schneiderman.

[NEW YORK TIMES]

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MARTINEZ v. AMERICA’S WHOLESALE LENDER | 9th Cir. Court of Appeals Reverses Part/Remands “Declarations Fail, QUIET TITLE, ReconTrust”

MARTINEZ v. AMERICA’S WHOLESALE LENDER | 9th Cir. Court of Appeals Reverses Part/Remands “Declarations Fail, QUIET TITLE, ReconTrust”


NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETRA MARTINEZ,
Plaintiff – Appellant,

v.

AMERICA’S WHOLESALE LENDER;
COUNTRYWIDE HOME LOANS
SERVICING LP; BANK OF AMERICA,
RECONTRUST COMPANY N.A.; and
BANK OF NEW YORK MELLON,
Defendants – Appellees.

Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding

Argued and Submitted May 12, 2011
San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and ST. EVE, District Judge.**

In this appeal, Petra Martinez contends that the district court erroneously
granted summary judgment in favor of Defendants. As the facts and procedural
history are familiar to the parties, we do not recite them here except as necessary to
explain our disposition. For the reasons explained below, we affirm the district
court’s grant of summary judgment in part and reverse it in part.

We review a district court’s grant of summary judgment de novo. See
Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921 (9th Cir. 2011).
In doing so, we view the evidence in the light most favorable to the nonmoving
party, and determine both whether any genuine dispute as to any material fact
exists and whether the district court correctly applied the substantive law. See id.

In her Complaint, Martinez brought a number of causes of action against
Defendants based on their alleged role in foreclosing on a property over which she
held a mortgage interest. The relevant causes of action were to quiet title, for an
accounting, for tortious violation of statute (the Real Estate Settlement Procedures
Act), for unfair competition, for unfair debt-collection practices, for declaratory
relief, for slander of title, for intentional infliction of emotional distress, and for
negligent infliction of emotional distress.

Although the district court separately analyzed each of these causes of
action, as well as two implicit “overarching claims” of a “right to initiate
foreclosure proceeding[s]” and “deficient notice,” Martinez abandons all but two

of them on appeal. Specifically, in her opening brief, Martinez only addresses her
claim under California Civil Code Section 2923.5 (though her Complaint does not
identify it as a discrete cause of action) and her action to quiet title on the basis that
Defendants lacked authorization to carry out the foreclosure. She either ignores or
gives mere passing reference to her other causes of action, and so she has waived
them. See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (citing
United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006)); Rattlesnake
Coal. v. U.S. Envtl. Prot. Agency, 509 F.3d 1095, 1100 (9th Cir. 2007).

We affirm the district court’s grant of summary judgment in favor of
Defendants on Martinez’s Section 2923.5 claim. Although a private right of action
exists under this section, the remedy “is a simple postponement of the foreclosure
sale, nothing more.” Mabry v. Superior Court, 110 Cal. Rptr. 3d 201, 204 (Cal. Ct.
App. 2010). It follows that a claim under Section 2923.5 necessarily fails if a
foreclosure sale has occurred. See Hamilton v. Greenwich Investors XXVI, LLC,
126 Cal. Rptr. 3d 174, 185-86 (Cal. Ct. App. 2011). Defendants observe that the
relevant property was sold in foreclosure on April 28, 2010, and Martinez concedes
this fact in her reply. Martinez’s Section 2923.5 claim therefore fails.

The final issue concerns Martinez’s quiet-title claim. The district court
granted summary judgment to Defendants on this claim because “[u]ndisputed
facts show that plaintiff has an outstanding loan on the property, and that
defendant BNYM [Bank of New York Mellon] holds the promissory note. Plaintiff cannot
quiet the title until she repays the mortgage.” It is generally true that, in California,
“‘an action to set aside a trustee’s sale for irregularities in sale notice or procedure
should be accompanied by an offer to pay the full amount of the debt for which the
property was security.’” Ferguson v. Avelo Mortg., L.L.C., 126 Cal. Rptr. 3d 586,
591 (Cal. Ct. App. 2011) (quoting Arnolds Mgmt. Corp. v. Eischen, 205 Cal. Rptr.
15, 17 (Cal. Ct. App. 1984)). In the present case, however, Martinez has alleged
that the purported trustee, ReconTrust Company, N.A. (“ReconTrust”), had no
interest in the subject property and thus lacked authorization to attempt, or effect, a
nonjudicial foreclosure. If Martinez were to prove this allegation, the foreclosure
sale would be void under California law. See Dimock v. Emerald Props., L.L.C.,
97 Cal. Rptr. 2d 255, 261-63 (Cal. Ct. App. 2000). The tender rule does not apply
to a void, as opposed to a voidable, foreclosure sale. See Ferguson, 126 Cal. Rptr.
3d at 592; Dimock, 97 Cal. Rptr. 2d at 262-63; 4 Miller & Starr, Cal. Real Estate §
10:212 (3d ed.).

There would have been no error if Defendants had introduced admissible
evidence establishing that there is no genuine dispute that ReconTrust was
authorized to carry out the foreclosure sale, such that the sale was not void. Cf.,e.g.,
Ferguson, 126 Cal. Rptr. 3d at 595 (distinguishing Dimock and holding that
trustee’s sale conducted by authorized party is “merely voidable,” not void). In
moving for summary judgment, however, Defendants relied on documents attached
to declarations including those of Kalama M. Lui-Kwan, George Merziotis, and
Eva Tapia. Martinez, in opposing Defendants’ motion for summary judgment,
filed evidentiary objections to these declarations, which the district court overruled
without explanation. We conclude that the district court abused its discretion in
doing so.

A declarant must lay a proper foundation for evidence considered on
summary judgment. Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007). For
documentary evidence submitted on summary judgment, however, “a proper
foundation need not be established through personal knowledge but can rest on any
manner permitted by Federal Rule of Evidence 901(b) or 902.” Secs. & Exch.
Comm’n v. Phan, 500 F.3d 895, 913 (9th Cir. 2007) (quoting Orr v. Bk. of Am., NT
& SA, 285 F.3d 764, 774 (9th Cir. 2002)). Put differently, “[t]he documents must
be authenticated and attached to a declaration wherein the declarant is the ‘person
through whom the exhibits could be admitted into evidence.’” Bias, 508 F.3d at
1224 (quoting Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,
1551 (9th Cir. 1990)).

Lui-Kwan sought to introduce title documents, a variety of deeds, notices,
and other evidence relevant to the present case. His declaration presents numerous
authentication problems. First, he declared that he had reviewed title documents
that “appear” to have been recorded with the Monterey County Recorder’s office.
Second, he obtained copies of the relevant documents from private websites, which
are not self-authenticating. Cf. United States v. Salcido, 506 F.3d 729, 733 (9th
Cir. 2007) (per curiam); United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000).

Defendants nevertheless argue that “[a] majority of the exhibits are
documents recorded with the Monterey County Recorder bearing an official stamp
for the date and time of the recording as well as a document number . . . and, as
such, are self-authenticating[.]” The attached documents, however, are not
originals, but are copies, and therefore are not self-authenticating. Compare
United States v. Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005) with United States
v. Hampton, 464 F.3d 687, 689 (7th Cir. 2006). Federal Rule of Evidence 902(4),
which governs “certified copies of public records,” requires the custodian or other
authorized person to certify that the copies are correct. Fed. R. Evid. 902(4).
Defendants failed to satisfy this requirement.

Defendants similarly failed to authenticate the documents attached to
Tapia’s declaration, which claim to be true and correct copies of documents
concerning Martinez’s loan and the Defendants’ corporate relationships. Tapia
asserted her “understanding” and “familiar[ity]” with the stated facts in a
conclusory manner that fails to establish her personal knowledge about the relevant
events and documents. Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008); Bank
Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir. 1995). Moreover, the
documents attached to her declaration are not admissible as “[c]ertified domestic
records of regularly conducted activity,” Fed. R. Evid. 902(11), because the
declaration contains no certification that ReconTrust made the records at or near
the time of the occurrence of the relevant matters, that it kept the records in the
course of a regularly conducted activity, or that it made the records by the regularly
conducted activity as a regular practice. Because Tapia failed to lay a foundation
for her personal knowledge about the documents, her testimony is not adequate
extrinsic evidence from “a witness who wrote it, signed it, used it, or saw others do
so” to establish admissibility under Federal Rule of Evidence 901(b)(1). Orr, 285
F.3d at 774 n.8 (internal quotation marks omitted). Defendants therefore failed to
authenticate the documents attached to Tapia’s declaration, and Tapia’s nondocumentary
factual assertions fail to meet the personal knowledge requirement of
Federal Rule of Civil Procedure 56(e)(1) (2009).

For the same reasons, we find that the documentary exhibits and factual assertions of
George Merziotis—to the extent that they are even relevant to the remaining
cause of action—fail to satisfy Federal Rule of Civil Procedure 56(e)
and the associated rules of evidence.

In light of these evidentiary problems, Defendants failed to introduce
sufficient admissible evidence to establish that the foreclosure sale was valid. We
therefore reverse as to Martinez’s quiet-title claim and remand to the district court
for further proceedings consistent with this disposition. Because the sole
remaining claim is founded on state law, we invite the district court to consider
whether it has subject-matter jurisdiction over the case.

Each party shall bear its own costs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

[ipaper docId=62465221 access_key=key-kh9cm2cs52hqf1t4sif height=600 width=600 /]

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BAKRI v MERS, BONY, TROTT & TROTT PC | Michigan Appeals Court REVERSED “MERS did not have the authority to foreclose by advertisement, No interest in Note”

BAKRI v MERS, BONY, TROTT & TROTT PC | Michigan Appeals Court REVERSED “MERS did not have the authority to foreclose by advertisement, No interest in Note”


S T A T E  O F  M I C H I G A N
C O U R T  O F  A P P E A L S

ALLEN BAKRI,
Plaintiff-Appellant,

v.

MORTGAGE ELECTRONIC REGISTRATION
SYSTEM, MERSCORP INC, BANK OF NEW
YORK MELLON, f/k/a BANK OF NEW YORK,
and TROTT & TROTT PC
,
Defendants-Appellees.

EXCERPT:

Although we find that the trial court properly concluded that defendant MERS had the
right to assign the mortgage to defendant Bank of New York Mellon and that defendant Bank of
New York Mellon had the power to foreclose on and sell the property, our inquiry does not end
there. There is another layer to the analysis, which involves an issue not raised by the parties,
but decided in our recent decision in Residential Funding Co, LLC v Saurman, ___ Mich App
___; ___ NW2d ___ (Docket Nos. 290248 & 291443; April 21, 2011) (Shapiro, J.). In Saurman,
the issue was whether a mortgagee who was not the note holder could foreclose by advertisement
under MCL 600.3204(1)(d). Saurman, slip op pp 7-8. We held that under MCL 600.3204(1)(d),
the Legislature has limited foreclosure by advertisement to those parties with ownership of an
interest in the note and that because the mortgagee was not “the owner . . . of an interest in the
indebtedness secured by the mortgage[,]” MCL 600.3204(1)(d), it lacked the authority to
foreclose by advertisement:

Applying these considerations to the present case, it becomes obvious that
MERS did not have the authority to foreclose by advertisement on defendants’
properties. Pursuant to the mortgages, defendants were the mortgagors and
MERS was the mortgagee. However, it was the plaintiff lenders that lent
defendants money pursuant to the terms of the notes. MERS, as mortgagee, only
held an interest in the property as security for the note, not an interest in the note
itself. MERS could not attempt to enforce the notes nor could it obtain any
payment on the loans on its own behalf or on behalf of the lender. Moreover, the
mortgage specifically clarified that, although MERS was the mortgagee, MERS
held “only legal title to the interest granted” by defendants in the mortgage.
Consequently, the interest in the mortgage represented, at most, an interest in
defendants’ properties. MERS was not referred to in any way in the notes and
only Homecomings held the notes. The record evidence establishes that MERS
owned neither the notes, nor an interest, legal share, or right in the notes. The
only interest MERS possessed was in the properties through the mortgages.
Given that the notes and mortgages are separate documents, evidencing separate
obligations and interests, MERS’ interest in the mortgage did not give it an
interest in the debt. [Saurman, slip op pp 10-11 (emphasis in original; footnote
omitted).]

[ipaper docId=62108439 access_key=key-1qner0p8mcrew6up4vh1 height=600 width=600 /]

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Schneiderman Sues BNY; Homeowners Validated; Will Deutsche Bank Be Next?

Schneiderman Sues BNY; Homeowners Validated; Will Deutsche Bank Be Next?


2 words

“BANKERS TRUST”

Reality Check-

By |

With one court filing, Attorney General Eric Schneiderman has transformed the mortgage backed securities liability landscape. By intervening and opposing the Bank of America/BNY global settlement of mortgage backed securities claims, Schneiderman served notice to the big banks that they will not be able to cut self-serving deals to escape liability to investors. By suing Bank of New York for fraud at the same time, he reminded banks that they face liabilities for their actions as trustee (as Yves Smith has been pointing out at Naked Capitalism for some time now.) In fact, given that everything Schneiderman alleged about BNY’s actions as trustee (other than the deal with BofA) could be said about Deustche Bank, US Bank, Wells Fargo, and JPMorgan Chase (all as Trustee), are those suits coming?

[REALITY CHECK]

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Bank of New York Mellon v. THE PEOPLE OF THE STATE OF NEW YORK by ERIC T. SCHNEIDERMAN, Attorney General of the State of New York (Intervenor Counter-Plaintiff)

Bank of New York Mellon v. THE PEOPLE OF THE STATE OF NEW YORK by ERIC T. SCHNEIDERMAN, Attorney General of the State of New York (Intervenor Counter-Plaintiff)


SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

In the matter of the application of
THE BANK OF NEW YORK MELLON (as Trustee under various Pooling and
Servicing Agreements and Indenture Trustee under various Indentures),
Petitioner Counter-Defendant,

-and-

BlackRock Financial Management Inc. (intervenor), Kore Advisors, L.P.
(intervenor), Maiden Lane, LLC (intervenor), Maiden Lane II, LLC (intervenor),
Maiden Lane III, LLC (intervenor), Metropolitan Life Insurance Company
(intervenor), Trust Company of the West and affiliated companies controlled by
The TCW Group, Inc. (intervenor), Neuberger Berman Europe Limited
(intervenor), Pacific Investment Management Company LLC (intervenor),
Goldman Sachs Asset Management, L.P. (intervenor), Teachers Insurance and
Annuity Association of America (intervenor), Invesco Advisers, Inc.
(intervenor), Thrivent Financial for Lutherans (intervenor), Landesbank Baden-
Wuerttemberg (intervenor), LBBW Asset Management (Ireland) plc, Dublin
(intervenor), ING Bank fsb (intervenor), ING Capital LLC (intervenor), ING
Investment Management LLC (intervenor), New York Life Investment
Management LLC (intervenor), Nationwide Mutual Insurance Company and its
affiliated companies (intervenor), AEGON USA Investment Management LLC,
authorized signatory for Transamerica Life Insurance Company, AEGON
Financial Assurance Ireland Limited, Transamerica Life International (Bermuda)
Ltd., Monumental Life Insurance Company, Transamerica Advisors Life
Insurance Company, AEGON Global Institutional Markets, plc, LIICA Re II,
Inc., Pine Falls Re, Inc., Transamerica Financial Life Insurance Company,
Stonebridge Life Insurance Company, and Western Reserve Life Assurance Co.
of Ohio (intervenor), Federal Home Loan Bank of Atlanta (intervenor),
Bayerische Landesbank (intervenor), Prudential Investment Management, Inc.
(intervenor), and Western Asset Management Company (intervenor),
Petitioners,

-against-

THE PEOPLE OF THE STATE OF NEW YORK by ERIC T.
SCHNEIDERMAN, Attorney General of the State of New York,
Intervenor Counter-Plaintiff,

for an order pursuant to CPLR § 7701 seeking judicial instructions and approval
of a proposed settlement.

[ipaper docId=61657093 access_key=key-kbjqkr4bbezhz89672h height=600 width=600 /]

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REDMON v. HOMEQ SERVICING INC. | Nevada Supreme Court Vacating Judgment & Remanding “Mediation, Sanctions, In RE PASILLAS”

REDMON v. HOMEQ SERVICING INC. | Nevada Supreme Court Vacating Judgment & Remanding “Mediation, Sanctions, In RE PASILLAS”


IN THE SUPREME COURT OF THE STATE OF NEVADA


PHILIP REDMON AND PATRICIA
REDMON,
Appellants,

vs.

HOMEQ SERVICING, INC.; BANK OF
NEW YORK MELLON TRUST
COMPANY; PATRICK KING; AND
ADMINISTRATIVE OFFICE OF THE
COURTS FORECLOSURE MEDIATION
PROGRAM,
Respondents.

ORDER VACATING JUDGMENT AND REMANDING

This is an appeal from a district court order denying a petition for judicial review arising in a foreclosure mediation action. Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.

Following an unsuccessful mediation conducted under Nevada’s Foreclosure Mediation Program, appellants Philip and Patricia Redmon (the Redmons) filed a petition for judicial review seeking sanctions against their loan servicer,  respondent HomEq Servicing, Inc. (HomEq). The district court concluded that HomEq’s conduct was not sanctionable and ordered that a foreclosure certificate be issued. As explained below, we vacate the district court’s order and  remand this matter to the district court.

The Redmons’ mediation was scheduled for December 28, 2009. On that day, the Redmons met with the mediator and an attorney representing HomEq. Due to an apparent miscommunication, HomEq’s attorney was unable to contact via telephone a HomEq employee who ostensibly had the authority to  negotiate the Redmons’ loan. Two days later, a follow-up conference call was held in which the mediator, HomEq’s attorney, and the HomEq employee articipated—but not the Redmons.

The Redmons’ petition for judicial review contended that, among other things, HomEq should be sanctioned for its failure to make someone available during the mediation who had the authority to negotiate their loan. See NRS 107.086(5) (indicating that the mediator shall recommend sanctions when the beneficiary or its representative “does not have the authority or access to a person with the authority” to negotiate a loan modification). In denying their petition, the district court failed to explain the basis for its conclusion that HomEq had made someone with authority available during the mediation. Specifically, the district court’s order does not explain who had authority on HomEq’s behalf, nor does it explain on what day or days the mediation took place.

On remand, we direct the district court to make the factual findings necessary to determine whether HomEq made someone available during the mediation who had the authority to negotiate the Redmons’ loan. If the district court concludes that HomEq failed in this regard, the district court shall determine how HomEq should be appropriately sanctioned. Pasillas v. HSBC Bank USA, 127 Nev.     , P• 3d (2011) (construing NRS 107.086(5) to mean that a violation of one of the four statutory requirements must be sanctioned and that the district court is to consider several factors in determining what sanctions are appropriate). Accordingly, we

ORDER the judgment of the district court VACATED AND REMAND this matter to the district court for proceedings consistent with this order.

[…]

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