Further,it appears that there is a conflict of interest in that MERS is both a plaintiff and defendant, at least as far as the original caption shows.
EXCERPTS:
On November 7, 2007, Mortgage Electronic Registration Systems, Inc., (MERS), as nominee for Lend America, assigned the mortgage to Central Mortgage Company (CMC). The assignment states that November 10, 2006 mortgage was made by Defendant Caughman to MERS as nominee for Lend America.
The caption of the action lists MERS, ,as nominee for Lend America, as the plaintiff. Defendants are Sherri Caughman, MERS, as nominee for Lend America, John Doe and Jane Doe.
In this motion, plaintiff seeks an order striking Defendant Caughman’s answer; the appointment of a Referee to compute the amount due and owing and the amendment of the caption. The amended caption would substitute CMC as plaintiff, in place and instead of MERS, as nominee for Lend America. In the amended caption, Sherri Caughmann would remain as a defendant, MERS, as nominee for Lend America, would be added as a defendant and Mr. Caughman and Vicki Douglas were added as defendants.
In support of its motion, plaintiff argues that it is entitled to summary judgment because it has made out a prima facie case and that defendant’s answer does not show that there are any issues of fact which would warrant denial of its motion.
Defendants, in opposing the motion, contends that MERS has no standing, as a nominee, to bring action because its status as nominee is limited and does not give it the power to transfer or assign ownership rights in property on behalf of the party for which it is acting as nominee. They add that MERS has said that it is not in possession of the original promissory note and, as such it allegations are inconsistent with its exhibits. Thus, defendants conclude, this raises issues of fact.
Continuing, defendants conted that the mortgage and note involved here were issued in Violation of the Federal Truth in Lending Act in that plaintiff did not provide them with the disclosures required under 15USC1639(a)(1) and (a)(2)(A) and 12 CFR 226.32. These violations, say defendants, leaves them with a “continuing right” to rescind the deal, which they claim to do in their opposition.
Upon review, defendants’ motion is granted. Neither MERS nor CMC has shown that it had the mortgage and note at the time the action was commenced. Further,it appears that there is a conflict of interest in that MERS is both a plaintiff and defendant, at least as far as the original caption shows.
The parties are directed to appear before this court on May 4, 2010 at 9:30 am for a conference.
With no legal training, Zeenat Ali, 23, has been doing battle in court, winning judgments against the bank and two other companies mainly on procedural grounds.
By E. Scott Reckard, Los Angeles Times
August 5, 2010
As foreclosure fights rage in the nation’s courts, the battle over Shahida and Ather Ali’s house in Diamond Bar looks like a classic mismatch.
In one corner, weighing in at $2.5 trillion in assets, sits Deutsche Bank, which is attempting to evict the Alis from their home of 24 years.
In the other is Zeenat Ali, the couple’s diminutive 23-year-old daughter, who dropped out of medical school and sued Deutsche Bank after it foreclosed on the property. Hoping to reclaim title for her parents, Ali has spent half a year litigating in state and federal courts without the help of a lawyer. And though she has no formal legal training, the soft-voiced, 120-pound bantam is more than holding her own.
Using online legal filings as models, she has staved off the eviction and even turned the tables, winning judgments that enabled her to seek $1.7 billion from Deutsche Bank and two other financial firms involved in the deal, Downey Savings and Central Mortgage Co. All three declined to comment on her suit, filed in March in Los Angeles County Superior Court in Pomona. It accuses them of fraud, botching foreclosure paperwork and violating laws requiring lenders to seek alternatives before they put delinquent borrowers out on the street.
Ali’s victories so far have been mainly procedural. Experts say she stands little chance of winning a large damage award. And her parents are likely to lose their home.
Still, legal veterans have been impressed by the smarts and tenacity of the neophyte with the long dark hair and the focused gaze. Ali’s occasionally wavering voice belies exacting preparation and a formidable resolve.
The banks have learned not to underestimate her. In a challenge to her budding legal skills, they sought in May to move her lawsuit to federal court in Los Angeles, where they thought they’d have an easier go of it. Ali responded with 170 pages of legal filings. After reviewing them, U.S. District Judge Gary Feess sided with Ali and last month sent the case back to Pomona Superior.
It was a victory that Elizabeth Mann, chairwoman of the executive committee of the Los Angeles County Bar Assn.’s litigation section, called “remarkable.”
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