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Indiana Appeals Court “MERS INTEREST” | CITIMORTGAGE v. BARABAS

Indiana Appeals Court “MERS INTEREST” | CITIMORTGAGE v. BARABAS


IN THE
COURT OF APPEALS OF INDIANA

CITIMORTGAGE, INC.,
Appellant-Intervenor/Cross-Claimaint,

vs.

SHANNON S. BARABAS A/K/A SHANNON
SHEETS BARABAS,1
Cross-Claim Defendant,

RECASA FINANCIAL GROUP, LLC,
Appellee-Plaintiff/Cross-Claim Defendant,
and
RICK A. SANDERS,
Appellee/Third-Party Defendant.

EXCERPT:

9. The [c]ourt further finds that [Citi?s] Relief Motion did not provide any notice to ReCasa and the creditors of the [b]ankruptcy [p]roceeding as to any interest of [Citi] in the Real Estate and as to Irwin Mortgage.

***

16. The [c]ourt further finds that [Citi?s] September 22, 2008 Relief Motion and the [b]ankruptcy [p]roceeding could not provide notice of any interest obtained by [Citi] pursuant to the [a]ssignment of [m]ortgage since the [a]ssignment of [m]ortgage was executed more than six months after the filing of the Relief Motion and after the termination and closure of the [b]ankruptcy [p]roceeding.

17. The [c]ourt further finds that no one has provided any evidence to this [c]ourt of the existence of any document providing notice of [Citi?s] interest in the Real Estate and the Irwin Mortgage prior to the filing of ReCasa?s June 13, 2008 [c]omplaint.

18. The [c]ourt further finds that no one has provided to this [c]ourt any document evidencing and providing notice of [Citi?s] interest in Real Estate and Irwin Mortgage other than [Citi?s] submission of an April 1, 2009 [a]ssignment of [m]ortgage recorded 22 months after the filing of ReCasa?s [c]omplaint and six months after the [c]ourt?s September 9, 2008 [d]efault [j]udgment and order of foreclosure.

19. The [c]ourt further finds that pursuant to Indiana Code [§] 32-29-8-2 and the findings herein, [Citi] failed to have its [a]ssignment of [m]ortgage properly placed on the mortgage record, and [Citi] is bound by this [c]ourt?s September 9, 2008 [d]efault [j]udgment, September 16, 2008 [a]mended [d]efault [j]udgment, and order of foreclosure in this cause of action as if [Citi] were a party to ReCasa?s [c]omplaint.

[…]

Ultimately, the Kansas supreme court found that in this case, MERS was little more than a “straw man” for Millennia (and later Sovereign). Id. at 166. The supreme court also noted that the mortgage repeatedly referenced the lender—not MERS—with respect to how notice was to be provided. Id. at 165-166. As such, the supreme court held that

[e]ven if MERS was technically entitled to notice and service in the initial foreclosure action—an issue we do not decide at this time—we are not compelled to conclude that the trial court abused its discretion in denying the motion to vacate default judgment and require joinder of MERS and Sovereign.

Id. at 168.5

We choose to follow the persuasive reasoning of the Landmark case because it is factually similar to the present case. Like Landmark, Citi seeks to have the default judgment set aside based on the fact that it received its interest from MERS, which served as the mortgagee “solely as nominee” for Irwin Mortgage. (Appellant?s App. p. 88). Thus, when Irwin Mortgage filed a petition and disclaimed its interest in the foreclosure, MERS, as mere nominee and holder of nothing more than bare legal title to the mortgage, did not have an enforceable right under the mortgage separate from the interest held by Irwin Mortgage. With respect to notice, just as the mortgage in Landmark referenced all notice to be sent to the lender, here, too, the mortgage states that notice to the lender should be sent to the lender?s address, or “10500 Kincaid Drive, Fishers, IN 46038,” which is the address of Irwin Mortgage. (Appellant?s App. p. 88). Thus, we find that the trial court did not abuse its discretion when it declined to set aside ReCasa?s amended default judgment.6

Continue below…

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FULL DEPOSITION OF WELLS FARGO HERMAN JOHN KENNERTY

FULL DEPOSITION OF WELLS FARGO HERMAN JOHN KENNERTY


Hat tip to Brian Davis for this deposition below.

JOHN KENNERTY a/k/a Herman John Kennerty has been employed for many years in the Ft. Mill, SC offices of America’s Servicing Company, a division of Wells Fargo Bank, N.A. He signed many different job titles on mortgage-related documents, often using different titles on the same day. He often signs as an officer of MERS (“Mortgage Electronic Registration Systems, Inc.”) On many Mortgage Assignments signed by Kennerty, Wells Fargo, or the trust serviced by ASC, is shown as acquiring the mortgage weeks or even months AFTER the foreclosure action is filed.

[ipaper docId=38977273 access_key=key-rgquasqbys0hxg420t8 height=600 width=600 /]

RELATED:

MAESTRO PLEASE…AND THE WINNER OF THE “MOST JOB TITLES” CONTEST IS…


© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, foreclosure, foreclosure fraud, herman john kennerty, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., wells fargoComments (1)

MAESTRO PLEASE…AND THE WINNER OF THE “MOST JOB TITLES” CONTEST IS…

MAESTRO PLEASE…AND THE WINNER OF THE “MOST JOB TITLES” CONTEST IS…


JOHN KENNERTY, a/k/a HERMAN JOHN KENNERTY

JOHN KENNERTY a/k/a Herman John Kennerty has been employed for many years in the Ft. Mill, SC offices of America’s Servicing Company, a division of Wells Fargo Bank, N.A. He signed many different job titles on mortgage-related documents, often using different titles on the same day. He often signs as an officer of MERS (“Mortgage Electronic Registration Systems, Inc.”) On many Mortgage Assignments signed by Kennerty, Wells Fargo, or the trust serviced by ASC, is shown as acquiring the mortgage weeks or even months AFTER the foreclosure action is filed.

Titles attributed to John Kennerty include the following:

Asst. Secretary, MERS, as Nominee for 1st Continental Mortgage Corp.;

Asst. Secretary, MERS, as Nominee for American Brokers Conduit;

Asst. Secretary, MERS, as Nominee for American Enterprise Bank of Florida;

Asst. Secretary, MERS, as Nominee for American Home Mortgage;

Asst. Secretary, MERS, as Nominee for Amnet Mortgage, Inc. d/b/a American Mortgage Network of Florida;

Asst. Secretary, MERS, as Nominee for Bayside Mortgage Services, Inc.;

Asst. Secretary, MERS, as Nominee for CT Mortgage, Inc.;

Asst. Secretary, MERS, as Nominee for First Magnus Financial Corporation, an Arizona Corp.;

Asst. Secretary, MERS, as Nominee for First National Bank of AZ;

Asst. Secretary, MERS, as Nominee for Fremont Investment & Loan;

Asst. Secretary, MERS, as Nominee for Group One Mortgage, Inc.;

Asst. Secretary, MERS, as Nominee for Guaranty Bank;

Asst. Secretary, MERS, as Nominee for Homebuyers Financial, LLC;

Asst. Secretary, MERS, as Nominee for IndyMac Bank, FSB, a Federally Chartered Savings Bank (in June 2010);

Asst. Secretary, MERS, as Nominee for Irwin Mortgage Corporation;

Asst. Secretary, MERS, as Nominee for Ivanhoe Financial, Inc., a Delaware Corp.;

Asst. Secretary, MERS, as Nominee for Mortgage Network, Inc.;

Asst. Secretary, MERS, as Nominee for Ohio Savings Bank;

Asst. Secretary, MERS, as Nominee for Paramount Financial, Inc.;

Asst. Secretary, MERS, as Nominee for Pinnacle Direct Funding Corp.;

Asst. Secretary, MERS, as Nominee for RBC Mortgage Company;

Asst. Secretary, MERS, as Nominee for Seacoast National Bank;

Asst. Secretary, MERS, as Nominee for Shelter Mortgage Company, LLC;

Asst. Secretary, MERS, as Nominee for Stuart Mortgage Corp.;

Asst. Secretary, MERS, as Nominee for Suntrust Mortgage;

Asst. Secretary, MERS, as Nominee for Transaland Financial Corp.;

Asst. Secretary, MERS, as Nominee for Universal American Mortgage Co., LLC;

Asst. Secretary, MERS, as Nominee for Wachovia Mortgage Corp.;

Vice President of Loan Documentation, Wells Fargo Bank, N.A.;

Vice President of Loan Documentation, Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc. f/k/a Norwest Mortgage, Inc.

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in chain in title, conflict of interest, conspiracy, CONTROL FRAUD, deed of trust, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, fraud digest, herman john kennerty, investigation, Lynn Szymoniak ESQ, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Notary, note, robo signer, servicers, trustee, Trusts, Wall StreetComments (3)


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