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U.S. Bank N.A.. v Solorin | NYSC Dismisses Complaint “Abandoned, Steven J. Baum PC Plaintiff Attorney Affirmation”

U.S. Bank N.A.. v Solorin | NYSC Dismisses Complaint “Abandoned, Steven J. Baum PC Plaintiff Attorney Affirmation”


Decided on November 10, 2011

Supreme Court, Queens County

 

U.S. Bank National Association, AS TRUSTEE FOR CSMC 2007-4, 3476 Stateview Boulevard, Ft. Mill, SC 29715, Plaintiff,

against

Ramon M. Solorin, ET.AL., Defendant.

5769/10
Attorney for Plaintiff:

Steven J. Baum, PC

900 Merchants Concourse, Ste. 116

Attorney for Defendant:

R. David Marquez, PC

50 Clinton Street, Ste. 98

Hempstead, New York 11550

Phyllis Orlikoff Flug, J.

The following papers numbered 1 to 4 read on this motion

Notice of Motion1 – 2

Affirmation in Opposition3 [*2]

Reply Affirmation4

Defendant, Ramon Solorin, moves to dismiss plaintiff’s Complaint as asserted against him.

This is an action to foreclose a mortgage on the real property located at 23-11 99th Street, in the County of Queens, City and State of New York.

CPLR 3215[c] provide that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.”

Plaintiff served the Summons and Complaint on defendant Solorin by substitute service on March 11, 2010. Defendant Solorin filed an answer on May 19, 2010. On May 27, 2010, plaintiff rejected defendant’s answer as untimely, stating that defendant’s time to answer had expired on April 25, 2010.

Although defendant has been in default since April 25, 2010, plaintiff has not yet moved for entry of a default judgment against him. While plaintiff moved on August 3, 2010, for an order appointing a receiver, plaintiff’s notice of motion did not contain any request for a default judgment (See Arriaga v. Michael Laub Co., 233 AD2d 244, 245 [1st Dept. 1996]). In any event, plaintiff voluntarily withdrew that motion on November 18, 2010.

Plaintiff contends that it has demonstrated sufficient cause as to why the complaint should not be dismissed. Specifically, plaintiff contends that its attempts to comply with Administrative Order 548/10 (as amended by AO 431/11) provides a reasonable excuse for its failure to comply with CPLR § 3215[c].

AO 548/10 went into effect on October 20. 2010 and requires that an attorney for plaintiff in a residential foreclosure action certify the accuracy of the papers filed in support of the action by submitting an affirmation from the attorney that he or she communicated with a representative of the plaintiff and was informed that the representative personally reviewed plaintiff’s documents and records relating to the case, reviewed the Summons and Complaint and all other papers filed in support of the foreclosure, and confirmed the accuracy of the court filings and the notarizations contained therein.

As AO 548/10 merely requires that attorneys certify that they have met a minimum standard of diligence, it does not provide plaintiff with a reasonable excuse for delaying approximately sixteen months before moving for default. Indeed, plaintiff’s papers indicate that [*3]they have still been unable to comply with AO 548/10, despite the fact that it had been in effect for nearly ten months at the time of the motion.

Accordingly, defendant’s motion to dismiss is granted, and Plaintiff’s Complaint is dismissed as asserted against him. The parties’ remaining contentions have been rendered moot.

November 10, 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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DEUTSCHE BANK NATL. TRUST CO. v TURNER | NY Civil Court “Dismissed on the basis of failure to name a necessary party”

DEUTSCHE BANK NATL. TRUST CO. v TURNER | NY Civil Court “Dismissed on the basis of failure to name a necessary party”



Civil Court of the City of New York, Bronx County


Deutsche Bank National Trust Co., AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2006-AR25, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR25 UNDER THE POOLING AND SERVICING AGREEMENT DATED JULY 1, 2006, Petitioner,

against

Elaine Turner, PERCIVAL TURNER, YVETTE JEFFRIES, JOHN DOE, JANE DOE, RICHARD ROE, CORA COE, Respondent.

EXCERPT:

Petitioner may not designate a party as “John Doe” or “Jane Doe” when there is actual knowledge of the party’s identity. “If none of the name is known, then a completely fictitious name may be utilized. However, such a designation can only be made if the designating party does not know all or part of the other party’s name; otherwise, the party must be identified to the extent that his or her name is known.” First Federal Savings and Loan Association of Rochester v. Souto, 158 Misc 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993). Further, “a petition naming the respondent as John Doe’ or Jane Doe’ is subject to dismissal if the true identity of the respondent is known to the petitioner when the proceeding is commenced.” Varveris v. Infante, N.Y.L.J. Sept. 15, 1993, p. 25, col. 3 (Civ. Ct. Queens Co.), citing ABKCO Industries v. Lennon, 52 AD2d 435; Capital Resources Corp. v. “John Doe” and “Jane Doe”, N.Y.L.J. June 17, 1992, p. 25, col. 6 (Civ. Ct. Kings Co.).

In the instant case, there has been no evidence or testimony presented to suggest that Petitioner had actual knowledge of the presence or identity of Gerda Southwell. However, petitioner has failed to demonstrate that any effort, let alone a diligent effort, was made to determine the identity(ies) of the occupant(s) of the premises. “It is clearly implicit in CPLR 1024 that the unusual authority it sanctions should not be availed of in the absence of a genuine effort to learn the true name of the party.” Chavez v. Nevell Mgmt. Co., Inc., 69 Misc 2d 718; 330 N.Y.S. 2d 890 (Civ. Ct. New York Co., 1972); 2 Weinstein-Korn-Miller, New York Civ. Prac., par. 1024.04. “Petitioner by means of the CPLR is duty bound not to proceed with or to permit an eviction proceeding to go forward in the name of a John Doe or Jane Doe’ when they could with diligence find out the true name, or actually have knowledge of the true name or names.” Green Point Savings Bank v. John and Jane Doe, N.Y.L.J. July 12, 1995, p. 31, col. 2; See Teachers College v. Walterding, 351 N.Y.S. 2d 587 (App. Term, 1st Dept, 1974) and Chavez v. Nevell Mgmt. Co., supra. Petitioner must further establish that a diligent effort has been made to ascertain the identity of the party. “It must be demonstrated that the persons named as unknown are actually unknown. To make that showing, counsel should present an affidavit [*4]stating that a diligent inquiry has been made to determine the names of such parties.” Capital Resources Corp. v. John Doe, 154 Misc 2d 864; 586 N.Y.S. 2d 706 (Civ. Ct. Kings Co., 1992); Chavez v. Nevell Mgmt. Co., supra; 2 Weinstein-Korn-Miller, NY Civ. Prac., par. 1024.04.

Petitioner has presented no evidence or testimony to demonstrate a diligent effort was made to ascertain the identity(ies) of the occupant(s). This is a two-family dwelling where the respondent has resided consistently since October 2008. In a two-family home the identity of any occupants’ could have been ascertained with a minimal amount of effort. Petitioner could have knocked on Ms. Southwell’s door, asked the prior owners if anyone else resided in the building, or checked the names on the mailboxes. Petitioner produced no evidence that any effort was made at all. “A diligent effort to learn the party’s name is a condition precedent to the use of CPLR §1024, which should therefore be turned to only as a last resort.” George Tut & Company v. Jane Doe, 2008 Slip Op 28264; 20 Misc 3d 815; 862 N.Y.S. 2d 428 (Civ. Ct. Kings Co., 2008); Siegel, NY Prac. §188 at 304 (3d ed). “If a petitioner knows a party’s name, or fails to demonstrate that diligent efforts were made to learn a party’s name, then use of a fictitious name is not authorized by CPLR 1024 and the petition is rendered fatally defective as to that party.” Pinnacle Bronx East v. Bowery Residents Committee Inc., 2006 NY Misc. LEXIS 4025; 235 N.Y.L.J. 60 (Civ. Ct. Bronx Co., 2006), citing Triborough Bridge and Tunnel Auth. v. Wimpfheimer, 165 Misc 2d 584; 633 N.Y.S. 2d 695 (App. Term, 1st Dept. 1995); First Fed. Savings and Loan Assoc. of Rochester v. Souto, 158 Misc 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993). Accordingly, respondent’s motion is granted and the petition is dismissed without prejudice. As the proceeding is dismissed on the basis of failure to name a necessary party, the court need not address the additional grounds raised for dismissal.

This is the decision and order of the Court.

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Another OH Appeals Court Dismissal For Lack of Final Appealable Order NATIONSTAR v. FISHER

Another OH Appeals Court Dismissal For Lack of Final Appealable Order NATIONSTAR v. FISHER


Are we seeing a pattern here?

Excerpt:

This case before the court sua sponte. It has come to the court’s attention that the order from which this appeal is taken is not final and appealable, On March 10, 2011, the Erie County Court of Common Pleas dismissed plaintiff’s complaint without prejudice for failure to allege it was both the owner and holder of the subject note.

Continue reading…

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OHIO Appeals Court Dismisses For Lack of Final Appealable Order US BANK v. HARPER

OHIO Appeals Court Dismisses For Lack of Final Appealable Order US BANK v. HARPER


Excerpt:

This case before the court sua sponte. It has come to the court’s attention that the order from which this appeal is taken is not final and appealable, On March 7, 2011, the Erie County Court of Common Pleas dismissed plaintiff’s complaint without prejudice for failure to allege it was both the owner and holder of the subject note.

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Lynn Szymoniak, Hero Behind 60 Minutes on Foreclosure Fraud Has Her Case Dismissed

Lynn Szymoniak, Hero Behind 60 Minutes on Foreclosure Fraud Has Her Case Dismissed


Special Thanks to Lynn’s attorney Mark Cullen!

Via Palm Beach Post

At a brief hearing Tuesday, Circuit Judge Jack Cook dismissed the case after finding that the note for the loan was not attached to the original foreclosure complaint. Deutsche Bank filed the foreclosure case in 2008, shortly after a dispute with her lender, Option One Mortgage, over her adjustable rate mortgage.

An attorney for Deutche Bank declined to comment on whether the bank would refile the foreclosure case. However, if the bank does so, it will have to comply with new, court-ordered guidelines that require lenders to verify the truthfulness of the documents. Those rules were not in effect in 2008 when Deutsche Bank filed to foreclose on Szymoniak’s home.

Click link below in case you missed 60 Minutes…

EXPLOSIVE VIDEO | CBS 60 MINUTES: Lynn Szymoniak ESQ, LPS, DOCx, FDIC Sheila Bair, Robo-Signing, Linda Green, Tywanna Thomas, Chris Pendley

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NEW JERSEY Superior Court Dismissal “Hole in the chain of title, Big enough to drive a truck through” U.S. BANK v. SPENCER

NEW JERSEY Superior Court Dismissal “Hole in the chain of title, Big enough to drive a truck through” U.S. BANK v. SPENCER


U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE FOR
J.P. MORGAN ACQUISITION CORP.
2006-FRE2, ASSET BACKED PASSTHROUGH
CERTIFICATES, SERIES
2006-FRE2
,

V.

ARTHUR SPENCER, MRS. ARTHUR
SPENCER, HIS WIFE; JOHN M.
ALFIS
,

Argued: March 18, 2011
Decided: March 22, 2011
Amended: March 28, 2011
Honorable Peter E. Doyne, A.J.S.C.

John Habermann, Esq. appearing on behalf of the plaintiff, U.S. Bank National
Association, as trustee for J.P. Morgan Acquisition Corp. 2006-FRE2, asset backed passthrough
certificates, series 2006-FRE2 (Phelan Hallinan & Schmieg, PC).

Gary E. Stern, Esq. appearing on behalf of the defendant, Arthur Spencer (Gary E. Stern, Esq.).

EXCERPT:

Analysis

A. Standing

Defendant’s counsel argued plaintiff did not have standing to sue as there was a break in the chain of title by the U.S. Bank assignment. Counsel specified the Fremont Investment assignment was by Fremont to Fremont Investment; the U.S. Bank assignment was by Fremont to U.S. Bank. The break was said to occur when Fremont, and not Fremont Investment, assigned the note and mortgage to U.S. Bank. Defendant’s counsel contended no explanation or turnover of documentation justified plaintiff’s right to prosecute the current foreclosure proceeding.19 However, the U.S. Bank assignment was from MERS as nominee for FGC d/b/a Fremont and its successors and/or assigns. As Fremont Investment was an assignee of Fremont pursuant to the Fremont Investment assignment, there appears to be no break in title when the mortgage and note were transferred pursuant to the U.S. Bank assignment. Nevertheless, plaintiff has provided no documentation or support for its position it is the trustee for J.P. Morgan, and therefore has not established its right to sue on behalf of JP Morgan.

Of greater import was defendant’s counsel’s argument plaintiff did not have standing as there was no proof the named plaintiff ever took physical possession of the note. Plaintiff’s counsel countered the original note was forwarded to him upon request for the location of the note but was inadvertently returned by counsel to plaintiff. It is though surprising the reply did not set forth, competently, plaintiff possessed the note on filing of the complaint.20

Without establishing physical possession of the note, plaintiff may not be an entity which may foreclose pursuant to the first and second categories in section 301, namely, as a (1) holder of the instrument or (2) a nonholder in possession of the instrument who has the rights of the holder.21 N.J.S.A. 12A:3-301. As plaintiff has not alleged, let alone established, the loss of possession of the instrument or the instrument was paid or accepted by mistake and the payor or acceptor recovered payment or revoked acceptance, plaintiff may not be a party who may foreclose pursuant to the third category in section 301, namely, a person not in possession of the instrument who is entitled to enforce the instrument. N.J.S.A. 12A:3-301; 12A:3-309(a); 12A:3-418(d). Therefore, plaintiff failed to establish standing as it is not a person entitled to enforce the note.N.J.S.A. 12A:3-301.

Plaintiff has failed to establish standing as its relationship as trustee to JP Morgan was not set forth; more importantly, though, plaintiff has failed to establish it had or has physical possession of the note and/or failed to demonstrate the note was indorsed. As such, summary judgment for plaintiff is denied and the cross-motion for summary judgment is granted. Although both motions may have been decided on the basis of lack of standing alone, for purposes of completeness, the court also shall analyze whether the evidence presented in support of plaintiff’s motion was competent and thereafter whether plaintiff has set forth a prima facie case in foreclosure.

B. Admissibility of evidence

Defendant’s counsel correctly asserted no competent witness has brought forth admissible evidence. Yoder does not claim to be a person with personal knowledge. R. 1:6-6. Furthermore, the exhibits attached to the Yoder Cert. do not fall within the business records exception as Yoder does not claim be a person with actual knowledge or to have produced the exhibits by obtaining information from such a person.22 N.J.R.E. 803(c)(6). Therefore, the exhibits submitted on plaintiff’s behalf were inadmissible hearsay and the court may not consider them. This is particularly perplexing as this issue was squarely put forth in defendant’s opposition and cross-motion, was not addressed in plaintiff’s reply, and follows shortly after the publication of Ford, supra.

As plaintiff has failed to justify the relief sought by competent, admissible evidence, plaintiff’s motion for summary judgment is denied. Lastly, the court shall analyze whether plaintiff has set forth a prima facie case in foreclosure.

C. Material issues in foreclosure proceeding

While plaintiff’s counsel conceded the circumstances surrounding the alleged default were “unfortunate,” he asserted it “did not create the fire to the premises nor . . . change the zoning of the subject property.” Plaintiff’s counsel set forth defendant failed to make payments pursuant to the executed note, and the mortgage was executed and recorded. However, as issues of fact remain concerning the fact-sensitive allegations of (1) unclean hands (2) breach of the duty of good faith and fair dealing,23 and, (3) as restoration was not “feasible,” why the proceeds were not applied to the sums secured, plaintiff’s motion for summary judgment is further denied.24 Had defendant’s crossmotion for summary judgment been brought solely upon the allegations of unclean hands and breach of the duty of good-faith and fair dealing, the court would have denied the cross-motion and the matter would have proceeded in the normal course to further explore the facts underlying the defenses; however, summary judgment for defendant is appropriate on the basis of lack of standing.

Conclusion

Some are more empathetic than others to mortgagors who are no longer paying their contractual committed amount in a manner consistent with their obligations. Motions for summary judgment or oppositions to motions for summary judgment based on technical deficiencies or defenses are coming before the chancery courts at an ever increasing rate. This case, though, is distinct from the “run of the mill” motion where defendant’s attorney raises “technical objections” in an effort to delay the seemingly inevitable in an attempt to garner for clients as much time in the home as the law will
permit without paying outstanding obligations.

Here, not only has plaintiff failed to establish standing to bring the instant foreclosure action or present admissible evidence by a competent witness, defendant’s competent assertions have also given rise to fact-sensitive defenses.

Defendant’s crossmotion is granted as plaintiff has failed to establish standing and has failed to comply with the court’s January 25, 2011 order.25 Plaintiff’s motion for summary judgment is denied on three grounds: (1) lack of standing, (2) failure to present a prima facie case by presenting admissible evidence by a competent witness, (3) and defenses raised would be in need of further exploration.

The action is dismissed without prejudice.26 The court’s order shall be sent under separate cover.

19At oral argument defendant’s counsel argued there is a hole in the chain of title “big enough to drive a truck through.” Counsel alleged there was no documentation or support indicating the note was assigned by Fremont Investment. This was the same argument counsel made on the papers.

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NYSC Gives EMC The Boot For Not Having Standing, Vacates Judgment of Foreclosure, Sale Due To Retroactive Assignment

NYSC Gives EMC The Boot For Not Having Standing, Vacates Judgment of Foreclosure, Sale Due To Retroactive Assignment


NEW YORK SUPREME COURT – QUEENS COUNTY

EMC MORTGAGE CORP.,

v.

JEANETTA TOUSSAINT

excerpt:

In order to commence a foreclosure action, plaintiff must have a legal and equitable interest in the subject mortgage (Wells Fargo Bank v Machine 69 AD3rd 204). Here, the subject mortgage was not assigned until October 2, 2007, which was after the action was commenced on October 1, 2007. A retroactive assignment to September 25, 2007 cannot be used to confer standing upon the foreclosure action commenced prior to the execution of the assignment. (Countrywide Home Loans v Giess 68 AD3rd 709).

<SNIP>

The plaintiff, not being the holder of the assignment at the time the action was commenced, it did not have standing to commence this action. Accordingly, the Court vacates the Judgment of Foreclosure and Sale, which the County Clerks minutes indicate was executed on April 9, 2009 and dismisses the complaint.

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TX Appeals Court “Raises Questions, Splitting of the Deed of Trust from the Note” MERS v. DiSANTI

TX Appeals Court “Raises Questions, Splitting of the Deed of Trust from the Note” MERS v. DiSANTI


MARK DISANTI
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

Case No. 4:10-CV-103. United States District Court, E.D. Texas, Sherman Division.

August 23, 2010.

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, Magistrate Judge

Pending before the Court is Mortgage Electronic Registration Systems, Inc.’s 12(b)(6) Motion to Dismiss Plaintiff’s First Amended Complaint (Dkt. #16). The Court, having considered the relevant pleadings, finds that Defendant’s Motion to Dismiss should be granted.

Plaintiff filed his Original Petition in the 367th Judicial District Court of Denton County on February 8, 2010, seeking a declaratory judgment that Defendant’s lien on real property should be discharged and judicially released. On March 10, 2010, Defendant removed this case to this Court. After Defendant filed a Motion to Dismiss, the Court ordered Plaintiff to file an amended complaint. On May 22, 2010, Plaintiff filed his First Amended Complaint (Dkt. #14).

On or about October 6, 2009, Plaintiff purchased a parcel of real property (the “Property”) located in Denton County, Texas. Plaintiff purchased the Property at a foreclosure sale, legally and properly conducted by a homeowners’ association. The homeowners’ association had foreclosed on the Property because Plaintiff’s predecessor in interest, Kenneth Y. Lee (“Lee”), had failed to pay certain assessments. At the time Lee purchased the Property, he purportedly executed a Deed of Trust in favor of Defendant, and a promissory note (the “Note”) in favor of Countrywide Home Loans.

Plaintiff sues Defendant seeking the following: (1) a decree of the Court that Defendant’s lien is invalid and a judgment quieting title in favor of Plaintiff; (2) a declaration holding that Defendant’s lien is void and of no effect; (3) if Defendant’s lien is found valid, a declaration that Plaintiff is entitled to keep the Property subject to Defendant’s lien; (4) an accounting and declaration of Plaintiff’s rights with respect to undefined liens; and (5) attorney’s fees.

On June 14, 2010, Defendant filed its second motion to dismiss (Dkt. #16). On July 14, 2010, Plaintiff filed his Opposition to Defendant’s Motion to Dismiss (Dkt. #21). On July 14, 2010, Defendant filed a supplement to its motion to dismiss (Dkt. #20). On July 15, 2010, Plaintiff filed a reply to Defendant’s supplement (Dkt. #22). On July 20, 2010, Defendant filed a reply (Dkt. #24).

Defendant moves for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which authorizes certain defenses to be presented via pretrial motions. A Rule 12(b)(6) motion to dismiss argues that, irrespective of jurisdiction, the complaint fails to assert facts that give rise to legal liability of the defendant. The Federal Rules of Civil Procedure require that each claim in a complaint include “a short and plain statement . . . showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The claims must include enough factual allegations “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).

Rule 12(b)(6) provides that a party may move for dismissal of an action for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The Court must accept as true all well-pleaded facts contained in the plaintiff’s complaint and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In deciding a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). “The Supreme Court recently expounded upon the Twombly standard, explaining that `[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Gonzalez, 577 F.3d at 603 (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “It follows, that `where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `shown’ — `that the pleader is entitled to relief.'” Id.

In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency of a complaint in the context of a Rule 12(b)(6) motion. First, the Court identifies conclusory allegations and proceeds to disregard them, for they are “not entitled to the assumption of truth.” Iqbal, 129 S.Ct. at 1951. Second, the Court “consider[s] the factual allegations in [the complaint] to determine if they plausibly suggest an entitlement to relief.” Id. “This standard `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary claims or elements.” Morgan v. Hubert, 335 F. App’x 466, 469 (5th Cir. 2009). This evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950.

Defendant moves to dismiss all claims, asserting that Plaintiff has failed to plead facts that would support a request for declaratory relief or to quiet title. First, Plaintiff asserts a claim to quiet title. Plaintiff argues that the original payee of the Note no longer owns and holds the Note and therefore may not enforce the Deed of Trust. Plaintiff further argues that the Deed of Trust, though not void on its face, is invalid. Plaintiff’s argument centers around the allegation that the Note and Deed of Trust have been separated, with Defendant as the beneficiary under the Deed of Trust and some other entity holding the Note. Defendant moves to dismiss this cause of action because Plaintiff cannot plead sufficient facts to prevail on a trespass-to-try-title case.

“To prevail in a trespass-to-try-title action, Plaintiff must usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004)(citation omitted). “The pleading rules are detailed and formal, and require a plaintiff to prevail on the superiority of his title, not on the weakness of a defendant’s title.” Id. (citation omitted).

Defendant asserts that the only way Plaintiff can extinguish Defendant’s interest in the Property is to plead and prove a trespass-to-try-title action based upon his superior title to the Property. The Court agrees. Plaintiff does not assert a superior title and he alleges no facts that would support this claim. Plaintiff merely asserts legal conclusions, and until Plaintiff pleads a proper claim to a superior title, Plaintiff’s claim is not plausible.

Although the factual situation does raise interesting questions under Texas law regarding the splitting of the Deed of Trust from the Note, this issue has not been properly presented to this Court. Even if Defendant is not the holder of the Note, Plaintiff purchased the Property at an inferior loan foreclosure and took the Property subject to superior liens. “Foreclosure does not terminate interests in the foreclosed real estate that are senior to the mortgage being foreclosed. In fact, the general rule is that the successful bidder at a junior lien foreclosure takes title subject to the prior liens.” Conversion Properties, L.L.C. v. Kessler, 994 S.W.2d 810, 813 (Tex. App.-Dallas 1999)(citations omitted). Because Plaintiff has failed to allege that he owns superior title to the Property, his claim to quiet title should be dismissed.

Plaintiff’s second claim for relief is a claim for declaratory relief. Plaintiff asserts that he is the owner of the Property and asks for a declaration that Defendant’s purported lien is void and of no effect. In the alternative, Plaintiff asserts that if it is determined that a purported senior lien is valid, Plaintiff seeks a declaration that he is entitled to keep and maintain the Property subject to such lien so long as he complies with the terms thereof. Plaintiff also seeks an accounting and a declaration as to his rights with respect to such liens.

When a declaratory judgment action filed in state court is removed to federal court, that action is, in effect, converted into one brought under the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. The federal Declaratory Judgment Act states, “In a case of actual controversy within its jurisdiction, … any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201. Federal courts have broad discretion to grant or refuse declaratory judgment. Torch, Inc. v. LeBlanc, 947 F.2d 193, 194 (5th Cir. 1991). “Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). The Declaratory Judgment Act is “an authorization, not a command.” Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962). It gives federal courts the competence to declare rights, but does not impose a duty to do so. Id.

Defendant asserts that there is no actual controversy between the parties. Defendant argues that Plaintiff has not established any current controversy that subjects him to any identifiable injury. Defendant further asserts that there is no assurance that Defendant could not become the holder of the Note prior to any attempt to sell the Property at a foreclosure. Thus, Defendant moves to dismiss Plaintiff’s request to have the lien declared void because Plaintiff cannot obtain such relief under the Declaratory Judgment Act. The Court agrees that Plaintiff cannot seek a declaration in this situation. The Court finds that there is not a controversy that requires the Court to address Defendant’s interest in the Property. Since Plaintiff has not pleaded a proper claim to quiet title, he cannot seek a declaration of the same relief. Plaintiff’s argument that the named beneficiary under a deed of trust who does not hold or own the note has no rights to enforce it, although correct, does not alter the result in this case. Whether Defendant could successfully foreclose on the Property is not before the Court because no attempts have been made to foreclose. Almost all of Plaintiff’s allegations have nothing to do with a live controversy between the parties.

However, Defendant does agree with two of Plaintiff’s allegations: that Defendant claims a superior right in the Property, and that Plaintiff has an obligation to service the lien. Plaintiff argues that, assuming for the sake of argument that Defendant’s interests are valid and enforceable, Plaintiff, as purchaser of a junior lien, still has the right to service the senior lien. Plaintiff asserts that in order to be able to service the lien, he must establish the identity of the party that holds the debt and he must have an accounting of what must be done to satisfy it.[1]

The parties are in agreement that Plaintiff would have an obligation to service the prior debt on the Property. “The purchaser takes the property charged with the primary liability for the payment of the prior mortgage and must therefore service the prior liens to prevent loss of the property by foreclosure of the prior liens.” Conversion Properties, 994 S.W.2d at 813. Defendant asserts that there is no justiciable controversy between the parties on this issue because it has agreed that Plaintiff may keep the Property if he makes the payments owed on it. The Court agrees that, with this agreement, there is no live controversy between the parties. However, the Court will require that Defendant provide to Plaintiff the identity of the holder of the Note so that Plaintiff knows to whom he needs to pay the money which is owed under the Note.

Plaintiff also asserts a claim for an accounting. Defendant moves to dismiss this claim because an accounting is an equitable remedy and not an independent cause of action. The Court agrees. Plaintiff has no cause of action that allows for an accounting, and this equitable relief should be dismissed. Likewise, Plaintiff’s claim for attorney’s fees should also be dismissed because there is no claim that survives that would allow for such an award.

It is hereby ORDERED that Mortgage Electronic Registration Systems, Inc.’s 12(b)(6) Motion to Dismiss Plaintiff’s First Amended Complaint (Dkt. #16) is hereby GRANTED and Plaintiff’s claims should be DISMISSED.

It is further ORDERED that Defendant shall provide to Plaintiff, within ten (10) days of this Order, the information about the holder of the Note so that Plaintiff knows to whom he needs to pay the money which is owed to the lender. After the Court is notified that this information has been provided, a final judgment will be entered.

[1] In its supplement to the motion, Defendant asserts that Plaintiff filed a case against it in the Northern District of Texas, alleging the identical allegations, which was dismissed by the Court. See Mark Disanti v. Mortgage Electronic Registration Systems, Inc., 4:10-cv-287-A, (N.D. Tex, Fort Worth Division). Plaintiff asserts that the Fort Worth case was settled and that was the basis for the dismissal. The cases appear to the Court to be nearly identical with the exception that Plaintiff attempted to plead a quiet title claim in this new case. However, a review of the transcript indicates that the Court was granting Defendant’s motion to dismiss because there was no live controversy between the parties.

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HUNDREDS OF FORECLOSURE CASES DISMISSED IN LEE COUNTY FLORIDA

HUNDREDS OF FORECLOSURE CASES DISMISSED IN LEE COUNTY FLORIDA


Banks drop foreclosures in Southwest Florida

Hundreds of lawsuits dismissed

By DICK HOGAN • dhogan@news-press.com • January 19, 2011

1:10 A.M. — Banks in recent weeks have been dropping hundreds of their Southwest Florida foreclosure lawsuits instead of facing defendants at trial, according to local attorneys and court records.

Opinions varied sharply on whether that means banks are just taking a breather before refiling with stronger evidence – or giving up for good on hopelessly flawed cases.

Some foreclosures at large law firms were never actually read by the attorneys who filed them here and elsewhere, and some of the mortgages that ended up in mortgage-backed securities sold to investors were never legally transferred by the banks, defense attorneys have alleged.


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Posted in STOP FORECLOSURE FRAUDComments (6)

PR Dist. Court Renders Judgment Void CITIMORTGAGE, INC. v. PANIAGUA-LATIMER

PR Dist. Court Renders Judgment Void CITIMORTGAGE, INC. v. PANIAGUA-LATIMER


CITIMORTGAGE, INC. Plaintiff,
v.
REINALDO JOSE PANIAGUA-LATIMER, CYNTHIA MARIE MUÑOZ-ZAYAS, CONJUGAL PARTNERSHIP PANIAGUA-MUÑOZ Defendant(s).

Civil No. 08-1591 (SEC).

United States District Court, D. Puerto Rico.

December 27, 2010.

OPINION and ORDER

SALVADOR E. CASELLAS, Senior District Judge.

Pending before this Court is Defendants Reinaldo Paniagua Latimer, Cynthia Marie Muñoz Zayas, and their conjugal partnership’s (“Defendants”) motion to vacate default judgment. Docket #18. Plaintiff Citimortgage, Inc. (“Plaintiff”) opposed (Docket #20), and Defendants replied (Docket #21 & 24). After reviewing the filings and the applicable law, Defendants’ motion to vacate default judgment is GRANTED.

<SNIP>

We further note that, as Defendants correctly point out, although Plaintiff submitted an affidavit by the process server, they did not file a verified complaint or accompanied the motion for service by publication with an affidavit setting forth factual allegations that justifies that they are entitled to some relief. In light of the applicable case law, this defect deprives this Court of jurisdiction over Defendants, and consequently renders the default judgment void. As a result, this Court’s May 14, 2009 default judgment is VACATED, and the present case is DISMISSED without prejudice for lack of personal jurisdiction.

Conclusion

For the above stated reasons, Defendants’ motion to vacate default judgment is GRANTED, the May 14, 2009 default judgment is VACATED, and the instant case is DISMISSED without prejudice.

IT IS SO ORDERED.

In San Juan, Puerto Rico, this 27 day th of December, 2010.

s/Salvador E. Casellas
Salvador E. Casellas
U.S. Senior District Judge

Continue below…

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MO E. DIS. COURT: “Not Clear Who U.S. Bank Was A Successor To” SCHWEND-McCUMMISKEY v. US BANK, N.A. et al

MO E. DIS. COURT: “Not Clear Who U.S. Bank Was A Successor To” SCHWEND-McCUMMISKEY v. US BANK, N.A. et al


SCHWEND
v.
US BANK, N.A.

(E.D.Mo. 12-3-2010).
Case No. 4: 10 CV 1590 CDP

Excerpt:

As plaintiff points out, it is not at all clear who US Bank was a successor to, since “Wachovia Bank, N.A. Pooling and Servicing Agreement dated as of November 1,
2004. Asset-Backed Pass-Though Certificates Series 2004-WWF1” does not appear to refer to an entity who could be a trustee or security holder, but rather appears to refer to an agreement of some sort. More importantly, there is nothing in the record to show how US Bank, Wachovia Bank, or “Pooling and Servicing Agreement dated as of November 1, 2004” came to be the holder of this note. As noted above, the original lender shown in the Deed of Trust is Argent Mortgage Company LLC and the original trustee is Lenders Management Corp. The forbearance agreement that Schwend later signed is with America’s Servicing Company. From the record here it is not at all clear that US Bank was the lawful holder of the note with the power to foreclose, and if it was not, the claim for wrongful foreclosure is more than plausible. See, e.g., Cobe v. Lovan, 92 S.W. 93, 97 (Mo. 1906) (foreclosure sale void when foreclosing defendant did not hold title
to the note).

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Posted in STOP FORECLOSURE FRAUDComments (1)

FRAUD on the COURT…”WAMU, CHASE AND FISHMAN & SHAPIRO” DISMISSED WITH PREJUDICE!

FRAUD on the COURT…”WAMU, CHASE AND FISHMAN & SHAPIRO” DISMISSED WITH PREJUDICE!


VIA: ForeclosureHamlet & 4closureFraud

Dismissed With PREJUDICE!

Court finds convincing evidence that Wamu, Chase and Fishman & Shapiro committed fraud on this court!

JP MORGAN V. POCOPANNI DUVAL, COUNTY FLORIDA CASE NO.: 16-2008-CA-3989


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Posted in concealment, conspiracy, CONTROL FRAUD, corruption, ctx mortgage, ex parte, fannie mae, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, jpmorgan chase, reversed court decision, shapiro & fishman paComments (4)

No Summary Judgment in This Foreclosure Action

No Summary Judgment in This Foreclosure Action


THE BANK OF NEW YORK TRUST
COMPANY, N.A., AS TRUSTEE FOR
CHASEFLEX TRUST SERIES 2007-3,

-vs-

DAVID J. MOSQUERA; ELIZABETH
MOSQUERA;

ICE LEGAL does it again…

Thank you to Lynn Szymoniak for her Expert Witness Affidavit used in this foreclosure case!

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Posted in bank of new york, dismissed, foreclosure, foreclosure fraud, foreclosures, ice law, Lynn Szymoniak ESQ, STOP FORECLOSURE FRAUDComments (1)

DEUTSCHE BANK drops Foreclosure Case on Two Florida Candidates!

DEUTSCHE BANK drops Foreclosure Case on Two Florida Candidates!


What I want to now know is how this happened extremely fast when there is thousands trying to work out the same? In my recent post I wrote about this controversy in which I question the validity of Deutsche Bank’s standing

Foreclosure case against two Fla. candidates dropped

Deutsche Bank files, dismisses suit with Marco Rubio and David Rivera over mortgage

Katherine Concepcion • Staff Writer • June 28, 2010 Tallahassee.com

A 1,228-square foot home off Apalachee Parkway was the subject of recent controversy within the Florida political scene.

On June 14, the Deutsche Bank National Trust Company initiated a foreclosure filed in the Leon County Circuit Court against Marco Rubio and David Rivera, owners of the property in question. The lawsuit has since been dropped; a notice of voluntary dismissal and release of lis pendens was filed on June 23.

The Law Offices of Marshall C. Watson, who represented Deutsche Bank, declined to comment.
Rubio, former Speaker of the Florida House of Representatives, is running for the Republican seat currently occupied by George LeMieux in the U.S. Senate. Rep. Rivera, who serves District 112 of the Florida House, is campaigning as a Republican Congressional candidate in Florida’s 25th District. The two men purchased the house for $135,000 in 2005. The property is currently under contract pending sale.

Rivera delivered a cashier’s check for $9,525 to the plaintiffs on Thursday, June 17, prompting Rubio spokesperson Alex Burgos, who did not return calls for comment, to issue a statement that the men “took action right away to get this [matter] resolved.”

Court records reveal a debt of around $136,000 on the property, including late charges and accumulated interest. Mortgage payments had not been made since February because of an alleged dispute over how the adjustable rate mortgage would be calculated once the interest-only period expired.

This is not the first financial battle Rubio has been embroiled in.

During his tenure as House speaker, Rubio was questioned about his failure to disclose receiving a $135,000 home-equity loan, and charging $16,000 in personal expenses, including grocery bills and car repairs, to a Florida GOP credit card.

Continue reading …

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RELATED STORY:

US Senate candidate MARCO RUBIO Facing Foreclosure…NOT SO FAST, Lets TAKE A LOOK!

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Posted in deutsche bank, foreclosure, foreclosure fraud, investigation, law offices of Marshall C. Watson pa, lawsuitComments (1)

VICTORY IN KEY WEST: JUDGE DISMISSES FORECLOSURE FILED BY FLORIDA DEFAULT LAW GROUP FOR FAILURE TO COMPLY WITH DISCOVERY AND COURT ORDERS

VICTORY IN KEY WEST: JUDGE DISMISSES FORECLOSURE FILED BY FLORIDA DEFAULT LAW GROUP FOR FAILURE TO COMPLY WITH DISCOVERY AND COURT ORDERS


DISMISSED!

May 20, 2010

Today, a Key West, Florida Circuit Court Judge dismissed a foreclosure action filed by Florida Default Law Group (FDLG), which was representing Bank of New York as the alleged “Trustee” of a Bear Stearns securitized mortgage loan trust. The borrower, who was represented by FDN’s Jeff Barnes, Esq., had served discovery on FDLG in late February, 2009. FDLG filed one of its form “open ended” Motions for Extension of Time to respond to the discovery (that being with no date certain for the response). FDLG failed to respond to Mr. Barnes’ good-faith request as to how much time FDLG needed to respond to the borrower’s discovery. The first “response” from FDLG came over 13 months later when FDLG objected to practically everything which Mr. Barnes asked for.

FDLG also failed to comply with the Court’s Pretrial Order, and had a history in the case of violating court orders and actually paid sanctions on prior Motion filed by Mr. Barnes. The Court dismissed the case and conditioned any re-filing on full compliance with Mr. Barnes’ discovery and the Court’s Orders.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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Posted in bear stearns, case, dismissed, FDLG, florida default law group, foreclosure fraudComments (1)


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