Supreme Court | FORECLOSURE FRAUD | by DinSFLA - Part 2

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US Bank National Association, v. Guillaume, et al. | New Jersey Supreme Court Says Lenders Must Be Named in Foreclosures

US Bank National Association, v. Guillaume, et al. | New Jersey Supreme Court Says Lenders Must Be Named in Foreclosures


Business Week-

New Jersey’s Supreme Court ruled documents indicating a bank’s intention to foreclose on a mortgage must name the lender before a residential property can be seized.

The case involves the foreclosure on an East Orange home owned by Maryse and Emilio Guillaume, who received a notice of intention to foreclose in May 2008. That notice included the name of the mortgage servicer, America’s Servicing Company while omitting the name of the lender. Credit Suisse AG made the loan and assigned it to US Bank National Association.

The state court in Trenton ruled today that the notice sent to the Guillaumes failed to comply with the state’s Fair Foreclosure Act, which requires the name and address of the actual lender, as well as contact information for a loan servicer. Failure to do so creates “potential for significant prejudice” to homeowners, the court said.

[BUSINESS WEEK]

SUPREME COURT OF NEW JERSEY

A-11 September Term 2011
068176

US BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR CSAB MORTGAGEBACKED
PASS-THROUGH
CERTIFICATES, SERIES 2006-3,
Plaintiff-Respondent,

v.

MARYSE GUILLAUME and EMILIO
GUILLAUME,
Defendants-Appellants,
and
CITY OF EAST ORANGE,
Defendant.

[ipaper docId=83026127 access_key=key-1dy350f9dun9v27dcohr height=600 width=600 /]

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Ohio Courts’ Reluctance to Admit Fraud Causes 16 years of Foreclosure Litigation

Ohio Courts’ Reluctance to Admit Fraud Causes 16 years of Foreclosure Litigation


Via MSFraud

Jack Wright – MSFraud.org            

February 23, 2012         

CLEVELAND – This week, Ohio’s 8th District Court of Appeals heard oral arguments in what must be one of the most disturbing foreclosure cases in the nation’s history.  It is the case of Richard Davet, and one of the most disturbing aspects of the case is it should have been dismissed with the bank’s 1996 filing.  Subsequent Ohio case law agrees.

In 1996, NationsBanc (now Bank of America) initiated a foreclosure action against the Davet family and invoked the jurisdiction of the court by claiming to be the owner and holder of the loan.   Mr. Davet, who the Wall Street Journal would later describe as prescient, immediately challenged Bank of America’s standing to sue and counterclaimed for damages. Davet established Fannie Mae was the owner and holder.   This was more than a decade before the public would learn about the systemically false ownership claims made by banks.  Without the proper party, the law directs courts to summarily dismiss the case.  And that is where the Davet case should have ended.  The truth should have set Davet free in 1996.  It did not.

Instead of dismissing the complaint, the 1996 court somehow granted judgment to Bank of America after it was already established they were not the real party, and therefore the court was without jurisdiction to render judgment.

Since then, Davet has been stuck inside a judicial treadmill, and for reasons that many consider highly suspect, the seemingly influenced Ohio courts have vigorously refused to release Davet from the injustice of its own void ab initio judgment.  For the last 16 years, the Davet’s lives have been manipulated and controlled by a judgment the law considers mere waste paper.  This should be a crime in itself.

Fool a judge once –shame on you; manipulate judges thousands of times and you can turn a city into the “Epicenter for Foreclosures” and 60 Minutes will come to town to film the damage you caused.  

Don’t Give Up On Ohio Courts Just Yet

Granted, Ohio’s judiciary does not have a highly-regarded history like Massachusetts, which is poised to rule as soon as this month on a foreclosure case that could justly lead to a surge in claims from home owners seeking to overturn unlawful seizures. But Ohio has shown promise during Davet’s ordeal with widely-cited foreclosure opinions of its own, such as Wells Fargo v. Jordan, Wells Fargo v. Byrd and Deutsche Bank v. Triplett that all fit squarely within the four corners of Davet’s case and support vacating the void ab initio judgment:

 –if plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.”,  

– “in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage.

The Jordan opinion also states:

    “Several judges have held that a complaint must be dismissed if the Plaintiff cannot prove that it owned the note and mortgage on the date the complaint was filed.”


        Also encouraging, Davet’s current appeal has been assigned to the author of Wells v. Jordan.  So there is much confidence this court will not and cannot make the same mistakes as other Davet courts.  Davet claims he still has legal title and his latest appeal is an action to get his home back.  It is an important issue and Ohio’s former Attorney General Marc Dann and attorney Grace Doberdruk are representing him.

The mishandling of wrongful foreclosures became so great it attracted 60 Minutes to come to Cleveland to report on the devastation these preventable foreclosures had caused. 

In an earlier November 2010 article, Ohio Chief Magistrate Bucha and other Cuyahoga County judges said that they fear document foreclosure defects may give former homeowners a claim on the title that will affect future sales.  That scenario fuels Judge Russo’s sense of urgency to sort out problems now, she said.  “If courts around the country do not handle this on an individual case basis and there are later problems with the title, the courts will have participated with the clouding of the title,” Russo said. “The potential for harm is so immense at so many levels.”

Two months later, when asked what homeowners should do when they find fraud and forgery was used to wrongfully take their home, Bucha told MSFraud that Ohio has legal remedies to reverse the process on an individual case by case basis.  But, the Davet case keeps confirming Ohio courts are reluctant to disturb these massive frauds upon its courts, county records and residents.

Recent Audits Overwhelmingly Support Davet’s 1996 Claims

In 1996, the Internet was basically useless for researching mortgage fraud.  If Davet had posted Bank of America was trying to take his home and they did not own it, his post may have been flagged as inappropriate or spam.  But today, the truthfulness of that statement is being uncovered across the country.  Just last week, an audit by San Francisco county officials of about 400 recent foreclosures there determined that almost all involved either legal violations or suspicious documentation.

 In Massachusetts, McDonnell Property Analytics did an audit for County Registrar John O’Brien and found 75% of assignments of mortgage were invalid.  People are still trying to get these astonishing figures to fit inside their heads.  I mean, what do you call this level of incompetence?  Wall Street and the mortgage industry are calling it: Succe$$

Cleveland witnessed this in 1996 and made the conscious decision to ignore it; repeatedly.  Since then, the question has remained – why?  One Ohio judge referenced foreclosures on his Internet bio as: “the gift that keeps on giving”, as foreclosures paid for the remodeling of his courthouse.  Yes, you can blame the forgeries and unlawful foreclosures on the banks, but you also have to place blame on our fact-finders and  gatekeepers of justice for getting it wrong greater than 75% of the time. 

Now, the 8th District Court of Appeals has another opportunity to redeem itself; only this time it has been matured by the visual damage and alarming statistics.  If it should not, then what is the point of continuing to audit, study, survey and investigate the biggest foreclosure fraud in our history if the findings promote nothing more than scandalous headlines?

Davet was not supposed to figure out so early in the game that the bank did not own his home, so when he did, Bank of America had to find a way to at least make it appear they owned it.  Several days after they filed for foreclosure, the bank’s law firm, Carlisle, McNellie, allegedly perpetrated a fraud upon the court when it hastily forged a 1996 assignment – after the fact.  But they named the loan originator who no longer owned Davet’s loan.  The courts apparently didn’t care and Davet’s home later sold.

This disturbing result worked so well, it would be repeated in countless cases until Cleveland eventually became branded as the “Epicenter for Foreclosures” by the New York Times.

Keep in mind, Davet came along in 1996. The mortgage industry was still tweaking the concealment features of its new theft by deception scheme and MERS was soon to make its property record-smashing debut.  The success of this Foreclosure Machine would depend greatly on the participation of a judiciary that could be relied upon to blindly rubber-stamp foreclosures.  In areas where that reliance worked best, foreclosures exploded, lives were ruined, and many communities were left struggling to survive.

The new model also leaned heavily on its favorite statistic:  9 out of 10 people targeted would not know to challenge the banks ownership, because back then, the public and the courts largely believed if a bank presented a statement to a court of law, it must be truthful.   Intimidated, 9 out of 10 homeowners would leave the keys on the counter and walk away.

The bank would also walk away… with the free house and all of the homeowner’s equity.  To obtain this windfall, the bank would write a threat letter to the homeowner; or if necessary, fill out a computer-generated court form and take it to a court for a stamp of approval.  It worked almost like a conveyer belt, with a robotic-like judge sitting at the stamping station near the end of the line.  Florida’s Rocket Docket became famous for it.  Did it help?  No, it propelled Florida into one of the worst foreclosure states in the country.  Illegal foreclosures flourished in areas where the judiciary and law enforcement were complicit.  Compare that to Nevada.  After it imposed criminal penalties for what the banks and their lawyers were doing – illegal foreclosures virtually stopped.

Did Davet’s Evidence Threaten The Foreclosure Machine?

If not, then why did Bank of America bring in the “influential” firm Jones Day, to litigate Davet into the ground?  Yes, Jones Day, litigating for years against a pro se litigant on one house with an $83K mortgage.

Think about it.  If banks could win possession of a home they do not own, with a borrower not in material default, and while the homeowners were living in it… why, they could take anybody’s home.

And that is why today we still hear horror stories of banks foreclosing on homes that didn’t even have a mortgage; foreclosing on the wrong home, and even one where there wasn’t a home to foreclose.  Curiously, it seems nobody has asked the bank: “Since you clearly do not own this home, where did you get the “data” contained in the documents you filed with the court?”

Remember, Wall Street banks were betting specific loan pools would default, while they had their own servicers like EMC, Litton, Ocwen, SPS/Fairbanks, etc., busy manufacturing the pool’s performing loans into default and foreclosure.  Lists of property data was being shipped to foreclosure factories (Servicers) and mills (law firms) with instructions to foreclose on every property on the list.  To foreclose on performing loans, Servicers would simply manufacture a default by holding or rejecting timely payments and then tack on a laundry list of fake fees to make it appear the account was in default.  We are still hearing these same stories today.  This fabricated data would falsely claim the homeowner was not paying.  That would be all a judge would need to grant the foreclosure before the homeowner had a chance to say: “Huh?”

How Much Court Influence Do Banks Really Have?

During a recent private meeting with Bank of America’s chief of litigation, Mr. Davet found it odd that he was told at least 10 times: “You will never beat us in Court.”  Was she saying Bank of America’s board is ready to use whatever resources it has to make sure Davet doesn’t win?   Or did she just mean their investor’s money?

How Will Ohio Address Its Wrongful Foreclosure Problem?

bulldozed-home.jpgWhat would be the condition of Cleveland today if its courts had taken a proactive approach to tainted foreclosures when it first noticed the problem in 1996?  Would it have become the foreclosure epicenter?  Will the court now take the results of recent studies, surveys and audits into consideration?  Or will they continue aiding in the conspiracy of concealment?  

Financial institutions continue to soak up judicial resources in perpetuating this fraud as an alternative to facing the music.   As Ohio’s Judge Christopher Boyko so eloquently stated in his now famous Opinion in 2007:

“The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate.”

Ohio Courts may decide it’s time to turn it around and start undoing the damage.  And they certainly have a good place to start.

 

Davet Reply Brief

Appellee’s Brief

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Notice of Oral Argument on 4/4/12: Freddie Mac v. SCHWARTZWALD – Ohio Supreme Court

Notice of Oral Argument on 4/4/12: Freddie Mac v. SCHWARTZWALD – Ohio Supreme Court


H/T B. Behrens

The Supreme Court of Ohio

Federal Home Loan Mortgage Corp

v.

Duane Schwartzwald et al.

The Supreme Court of Ohio will hold an oral argument on the merits in this case on Wednesday, April 04, 2012. Time allowed for oral argument will be 15 minutes per
side.

[ipaper docId=82147561 access_key=key-oaw4nbp66kdwp9azyrt height=600 width=600 /]

 

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KARL VS. HSBC BANK, USA, NA | Nevada Supreme Court “Mediation, Missing Documents, HSBC Failed To Show It Was Proprer Bene”

KARL VS. HSBC BANK, USA, NA | Nevada Supreme Court “Mediation, Missing Documents, HSBC Failed To Show It Was Proprer Bene”


THE SUPREME COURT OF THE STATE OF NEVADA

CAROLINE J. KARL,
Appellant,

vs.

HSBC BANK, USA, NA, AS TRUSTEE
FOR MERRILL LYNCH ALTERNATIVE
NOTE ASSET TRUST, SERIES 2007-A3,
AN UNKNOWN ENTITY; AMERICA’S
SERVICING COMPANY, AN
UNKNOWN ENTITY; AND QUALITY
LOAN SERVICE CORPORATION, A
FOREIGN ENTITY,
Respondents.

ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING

EXCERPT:

Karl now appeals, contending (1) HSBC did not provide all the
required documents, which constitutes bad faith; and (2) a proper
representative did not attend the mediation.’ For the reasons set forth
below, we affirm in part, reverse in part, and remand the district court’s
order denying judicial review. Specifically, we take issue with the district
court’s finding that HSBC provided proper documentation at the
mediation.

Because the parties are familiar with the facts and procedural
history in this case, we do not recount them further except as is necessary
for our disposition.

Standard of review

This court reviews a district court’s factual determinations for
clear error, Valladares v. DMJ, Inc., 110 Nev. 1291, 1294, 885 P.2d 580,
582 (1994), and its legal determinations de novo, Clark County v. Sun
State Properties, 119 Nev. 329, 334, 72 P.3d 954, 957 (2003). Absent
factual or legal error, the choice of sanction, if any, in an FMP judicial
review proceeding is committed to the sound discretion of the district
court. Pasillas v. HSBC Bank USA, 127 Nev. „ 255 P.3d 1281,
1287 (2011).

HSBC failed to provide the required documentation

To obtain a foreclosure certificate, it is mandatory that a
beneficiary of a deed of trust or its representative “(1) attend the
mediation, (2) mediate in good faith, (3) provide the required documents,
and (4) have a person present with authority to modify the loan or access
to such a person.” Id. at     , 255 P.3d at 1284; see Leyva v. National
Default Servicing Corp., 127 Nev.     „ 255 P.3d 1275, 1276 (2011)
(requiring strict compliance with NRS 107.086’s requirements). A letter
certifying the mediation cannot be entered until all the requirements of
NRS 107.086 are met. Pasillas, 127 Nev. at , 255 P.3d at 1286. If the
homeowner petitions the district court for judicial review, the court may
impose sanctions against the “beneficiary of the deed of trust or the
representative as the court determines appropriate” if any one of these
four requirements is not satisfied. NRS 107.086(5).

Karl contends that HSBC failed to provide the documents
required under NRS 107.086(4). We agree. NRS 107.086(4) requires that
the beneficiary provide “the original or a certified copy of the deed of trust,
the mortgage note and each assignment of the deed of trust or mortgage
note.” The record lacks clarity as to whether HSBC provided all the
proper documentation. 2 The only evidence provided is that the mediator
did not note missing documents on the mediator statement. The
documents in the appellate record, however, fail to show whether HSBC
established that it was the proper beneficiary that provided the required
documents. Thus, we conclude that the district court abused its discretion
in determining that the necessary documents were provided. 3 Accordingly
we,
ORDER the judgment of the district court AFFIRMED
IN PART AND REVERSED IN PART AND REMAND this matter to the
district court to clarify its findings regarding the sufficiency of the
documents produced by HSBC at the mediation and whether sanctions are
appropriate. 4

[ipaper docId=79217873 access_key=key-51z9v73kmy1rf58460w height=600 width=600 /]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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PIAZZA VS. CITIMORTGAGE, INC. | Nevada Supreme Court “Mediation, Directs Dist. Ct. to Evaluate Assignments”

PIAZZA VS. CITIMORTGAGE, INC. | Nevada Supreme Court “Mediation, Directs Dist. Ct. to Evaluate Assignments”


IN THE SUPREME COURT OF THE STATE OF NEVADA

CARL F. PIAZZA,
Appellant,

vs.

CITIMORTGAGE, INC.,
Respondent.

ORDER AFFIRMING IN PART, REVERSING IN PART, AND
REMANDING

EXCERPTS:

On appeal, Piazza contends that the district court abused its
discretion in refusing to sanction CitiMortgage and in ordering that it be
issued a foreclosure certificate. He argues that the issuance of a
foreclosure certificate was improper because the Broker’s Price Opinion
(BPO) that CitiMortgage produced at the mediation did not strictly comply
with the statutory requirements set forth in NRS 645.2515(3), and the
assignments of the deed of trust that CitiMortgage presented at the
mediation were flawed. 2 For the reasons set forth below, we affirm in part
and reverse in part the district court’s order granting CitiMortgage’s
petition for judicial review, and remand for further proceedings.

The district court abused its discretion in ordering a foreclosure certificate
to be issued to CitiMortgage[

[…]

Nonetheless, based upon the record on appeal, it does not
appear that the district court reviewed the assignments presented by
CitiMortgage to ensure that they were in strict compliance. The district
court, therefore, abused its discretion in ordering a foreclosure certificate
to be issued. We therefore reverse and remand this matter to the district
court for further proceedings. On remand, we direct the district court to
evaluate whether the assignments presented by CitiMortgage were in
strict compliance. In this, the court must consider whether the documents
presented establish that the deed of trust was properly assigned and make
appropriate findings related thereto. Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.

[ipaper docId=79216724 access_key=key-4lxgi0au6330aa2gdgo height=600 width=600 /]

 

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DEUTSCHE BANK NAT. TRUST v. BRUMBAUGH | OK SC “there is a question of fact as to when Appellee became a holder, and thus, a person entitled to enforce the note”

DEUTSCHE BANK NAT. TRUST v. BRUMBAUGH | OK SC “there is a question of fact as to when Appellee became a holder, and thus, a person entitled to enforce the note”


DEUTSCHE BANK NATIONAL TRUST v. BRUMBAUGH
2012 OK 3
Case Number: 109223
Decided: 01/17/2012

THE SUPREME COURT OF THE STATE OF OKLAHOMA


Cite as: 2012 OK 3, __ P.3d __


NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

 


DEUTSCHE BANK NATIONAL TRUST, AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN 2002-1, Plaintiff/Appellee,
v.
DENNIS BRUMBAUGH, Defendant/Appellant.

ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
HONORABLE LINDA G. MORRISSEY
DISTRICT JUDGE

¶0 The Plaintiff /Appellee, Deutsche Bank National Trust as Trustee for Long Beach Mortgage Loan 2002-1, filed this foreclosure action against the Defendant/Appellant, Dennis Brumbaugh. Plaintiff filed a motion for summary judgment which was granted by the trial court. Defendant contends there is not enough evidence to show Plaintiff has standing. Plaintiff asserts it is the holder of the note and has standing. We find there are material issues of fact that need to be determined and summary judgment is not appropriate.

REVERSED AND REMANDED WITH INSTRUCTIONS

Phillip A. Taylor, TAYLOR & ASSOCIATES, Broken Arrow, Oklahoma, for Defendant/Appellant.
Ray E. Zschiesche, PHILLIPS MURRAH P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee.

COMBS, J.

FACTS

¶1 This is an appeal from a foreclosure action initiated by Appellee, Deutsche Bank National Trust As Trustee for Long Beach Mortgage Loan 2002-1 (Appellee) against Appellant Dennis Brumbaugh (Appellant) and others. Appellant and his wife, Debra Brumbaugh, (Brumbaughs) executed a note and mortgage with Long Beach Mortgage Company on February 27, 2002. On December 27, 2006, the Brumbaughs entered into a loan modification agreement with U.S. Bank, N.A., successor trustee to Wachovia Bank, N.A. (formerly known as First Union National Bank), as Trustee for Long Beach Mortgage Loan Trust 2002-1, Asset Backed Certificates, Series 2002-1 in trust for the benefit of the Certificateholders. On July 20, 2007, the Brumbaughs divorced, and in 2008, Debra Brumbaugh executed a quitclaim deed to Dennis Brumbaugh.

¶2 Appellant defaulted on the note in January 2009, and Appellee filed its petition for foreclosure on June 2, 2009. Attached to the petition was a copy of the note, mortgage, loan modification agreement, and copies of statements of judgments and liens by other entities. Appellee claims it is the present holder of the note and mortgage having received due assignment through mesne assignments of record or conveyance via mortgage servicing transfer. The Appellant answered, denying Appellee owns any interest in the note and mortgage, and the copies attached to the petition were not the same as those he signed. He claims Appellee lacked capacity to sue and the trial court lacks jurisdiction over the subject matter. He also denied being in default and asserted the Appellee/servicing agent caused the alleged default.

¶3 On April 1, 2010, Appellee filed a motion for summary judgment. Attached to the motion was an affidavit from an employee of JP Morgan Chase Bank (Chase) as the servicing agent for Appellee. The affidavit states the Appellee is the current owner and holder of the original note, mortgage, and the modification agreements. However, there is no mention of when Appellee became the holder.

¶4 Appellant asserts in his response to the motion for summary judgment that Appellee failed to prove the affiant is a competent witness and no documentation was presented that connects Appellant to Appellee. The note attached to the petition and the motion did not show it had been negotiated to any other party including Appellee. Negotiation requires transfer of possession of the instrument and its indorsement by the holder. 12A O.S. 2001, § 3-201(b). He asserts because there is no indorsement whatsoever by Long Beach Mortgage Company attached to the petition and motion for summary judgment, Appellee cannot be the holder of the note. Therefore, Appellant asserts Appellee cannot be the real party in interest. However, in Appellee’s reply to Appellant’s response to the motion for summary judgment and at the hearing, a copy of the note with a blank, undated indorsement signed by Long Beach Mortgage Company was attached and presented.

¶5 Appellee asserts that even if negotiation of the note was at issue, Appellee has possession of the note and that satisfies the “negotiation” requirements of 12A O.S. 2001, § 3-201. Further, the Chase affiant has personal knowledge because he reviewed and examined the account files and Chase is the servicing agent for Appellee. Appellee further asserts, it has the original note and mortgage, and is therefore, the real party in interest.

¶6 The trial court reviewed the note presented at the hearing and agreed with Appellee that Appellee was the holder of the note because it had possession of the note and it was indorsed in blank. The court granted summary judgment in favor of Appellee on January 27, 2011.

STANDARD OF REVIEW

¶7 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205.

ANALYSIS

¶8 The Uniform Commercial Code adopted in Oklahoma, 12A O.S. 2001, § 1-101 et seq., defines who is a “person entitled to enforce” the note (instrument).1 A “person entitled to enforce” the note requires possession of the note with a very limited exception.2 It will be either one who is a “holder” of the note or a “nonholder in possession of the note who has the rights of a holder.”3

¶9 Appellee must demonstrate it is a person entitled to enforce the note. It must provide evidence it has possession of the note either by being a holder or a nonholder in possession who has the rights of a holder. Appellee attached to its Reply to Defendant’s Response to Plaintiff’s Motion for Summary Judgment a copy of the note with a blank indorsement from Long Beach Mortgage Company. Appellee states this allonge4 was inadvertently omitted from the copy of the note that was attached to its Motion for Summary Judgment. However, this allonge was not attached to the Petition for Foreclosure of Mortgage. Appellee is trying to establish it is a “holder” of the note. Evidence establishing when Appellee became a person entitled to enforce the note must show Appellee was a person entitled to enforce the note prior to filing its cause of action for foreclosure.

¶10 Appellant argues Appellee does not have standing to bring this foreclosure action. The issue presented to this Court is standing. This Court has previously held:

Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is “direct, immediate and substantial.” Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome.

Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held:

Respondent challenges Petitioner’s standing to bring the tendered issue. Standing refers to a person’s legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original)

Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated “[s]tanding may be raised at any stage of the judicial process or by the court on its own motion.” Additionally in Fent, this Court stated:

Standing refers to a person’s legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse.

Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, “standing [must] be determined as of the commencement of suit.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S.Ct. 2130, 2142, 119 L.Ed. 351 (1992).

¶11 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.5 Being a person entitled to enforce the note is an essential requirement to initiate a foreclosure lawsuit. In the present case, there is a question of fact as to when Appellee became a holder, and thus, a person entitled to enforce the note. Therefore, summary judgment is not appropriate. If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. We reverse the granting of summary judgment by the trial court and remand back for further determinations as to when Appellee acquired its interest in the note.

CONCLUSION

¶12 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff. This is accomplished by establishing that the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. 12A O.S. 2001, § 3-301. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or loan modification, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010).

REVERSED AND REMANDED WITH INSTRUCTIONS

¶13 CONCUR: TAYLOR (This Court’s decision in no way releases or exonerates the debt owed by the defendants on this home.), C.J., KAUGER (joins Taylor, C.J.), WATT, WINCHESTER (joins Taylor, C.J.), EDMONDSON, REIF, COMBS, GURICH (joins Taylor, C.J.), JJ.

¶14 RECUSED: COLBERT, V.C.J.

FOOTNOTES

112A O.S. 2001, § 3-301.

2 A person who is not reasonably able to obtain possession of the note because it was lost, destroyed, in the wrongful possession of another, or it is paid or accepted by mistake. 12A O.S. 2001, § 3-301.

3 A holder is a person in possession of the note that is payable either to bearer (blank indorsement) or to an identified person (special indorsement) that is the person in possession. 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. A “nonholder in possession who has the rights of a holder” is a person in possession of the note but the note was not indorsed by the previous holder; special indorsement or blank indorsement. No negotiation has occurred because the person now in possession did not become a holder by lack of the note being indorsed as mentioned. An example would be when a sale of notes in bulk is made by the holder to a transferee and the holder is transferring the right to enforce the notes even though there has been no negotiation. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, § 3-203(b). Some jurisdictions have held that without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011).

4According to Black’s Law Dictionary (9th ed. 2009) an allonge is “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.” See, 12A O.S. 2001, § 3-204(a).

5 This opinion occurred prior to the enactment of the UCC and as explained in footnote 3 of this opinion, the person entitled to enforce the note in almost all situations is required to be in possession of the note and therefore if the owner of the note is not in possession of the note it is not a person entitled to enforce the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)).

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Deutsche Bank Nat.Trust v. Byrams | OK SC “Without an indorsement on the note the Appellee cannot be a holder of the note”

Deutsche Bank Nat.Trust v. Byrams | OK SC “Without an indorsement on the note the Appellee cannot be a holder of the note”


DEUTSCHE BANK NATIONAL TRUST COMPANY v. BYRAMS
2012 OK 4
Case Number: 108545
Decided: 01/17/2012

THE SUPREME COURT OF THE STATE OF OKLAHOMA

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE IN TRUST FOR THE BENEFIT OF THE CERTIFICATE HOLDERS FOR ARGENT SECURITIES INC., ASSET-BACKED PASS THROUGH CERTIFICATES, SERIES 2006-W2, Plaintiff/Appellee,

v.

JEVESTER BYRAMS, JR. and NATACHA BYRAMS, ET AL Defendant/Appellant,

ON APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY
HONORABLE LAWRENCE W. PARISH
DISTRICT JUDGE

¶0 Appeal of a summary judgment granted in Deutsche Bank National Trust Company’s favor against the Byramses on May 11, 2010. The Byramses filed a petition and motion to vacate, as well as, requests to stay any proceedings regarding the property. The parties appeared before the trial court on June 15, 2010, and the petition, motion and other requests were denied. The order was filed on July 6, 2010. The Byrams appealed on July 28, 2010, and this Court retained the matter on April 21, 2011.

REVERSED AND REMANDED WITH INSTRUCTIONS

Phillip A. Taylor, TAYLOR & ASSOCIATES, Broken Arrow, Oklahoma, for Defendant/Appellants.
A. Grant Schwabe, KIVELL, RAYMENT AND FRANCIS, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee.

COMBS, J.

FACTUAL AND PROCURAL HISTORY

¶1 In a petition filed on December 8, 2009, Deutsche Bank National Trust company, as Trustee in Trust for the benefit of the Certificate Holders for Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2006-W2,claiming to be the present holder of the note (hereinafter Deutsche Bank) filed a foreclosure action against the Byramses. Deutsche Bank claimed at that time to hold the note and mortgage having received due assignment through mesne assignments of record or conveyance via mortgage servicing transfer. A review of the note shows no indorsement. Argent Mortgage Company, LLC, was the original lender. In its brief in support of motion for summary judgment, filed March 9, 2010, Deutsche Bank attached a document entitled “Assignment of Mortgage.” This assignment of mortgage was acknowledged on January 12, 2010, and stamped as being recorded with the County Clerk of Tulsa County on January 26, 2010. This was over one month after the filing of the foreclosure proceeding (December 8, 2009). Additionally, this Assignment of Mortgage, from Argent Mortgage Company, LLC, by Citi Residential Lending, Inc., made to plaintiff, Deutsche Bank as the trustee of Argent Mortgage Company, LLC, was signed by Citi Residential Lending, Inc. Both the assignor and assignee list the same address, “c/oAmerican Home Mtg Servicing, Inc. 1525 S. Beltline Rd, Coppell, TX 75019.” A summary judgment granted in Deutsche Bank’s favor against the Byrams on May 11, 2010, memorialized a final journal entry of judgment order. A petition for new trial to vacate the final journal entry of judgment, and motion to dismiss plaintiff’s petition for lack of standing was filed on May 21, 2010, which was denied by order on June 28, 2010, by the trial court. The Byrams appeal this summary judgment arguing Deutsche Bank National Trust Company failed to demonstrate standing.

STANDARD OF REVIEW

¶2 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 631 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205.

ANALYSIS

¶3 Appellant argues Appellee does not have standing to bring this foreclosure action. Although Appellee has argued it holds the note, there is no evidence in the record supporting it is a holder of the note. The face of the note does not indicate it was indorsed and the purported “assignment of mortgage” was filed after the filing of the foreclosure proceedings.

¶4 The issue presented to this Court is standing. This Court has previously held:

Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is “direct, immediate and substantial.” Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome.

Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held:

Respondent challenges Petitioner’s standing to bring the tendered issue. Standing refers to a person’s legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original)

Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated “[s]tanding may be raised at any stage of the judicial process or by the court on its own motion.” Additionally in Fent, this Court stated:

Standing refers to a person’s legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse.

Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, “standing [must] be determined as of the commencement of suit; . . .” Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S.Ct. 2130, 2142, 119 L.Ed. 351 (1992).

¶5 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.1 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, “[p]roof of ownership of the note carried with it ownership of the mortgage security.” Engle v. Federal Nat. Mortg. Ass’n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note.” BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a “person entitled to enforce an instrument” by showing it was “(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title.” 12A O.S. 2001 §3-301.

¶6 To show you are the “holder” of the note you must prove you are in possession of the note and the note is either “payable to bearer” (blank indorsement) or to an identified person that is the person in possession (special indorsement).2 Therefore, both possession of the note and an indorsement on the note or attached allonge3 are required in order for one to be a “holder” of the note.

¶7 To be a “nonholder in possession who has the rights of a holder” you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement. The record in this case reflects the note has not been indorsed. No negotiation has occurred because the person now in possession did not become a holder by lack of the note being indorsed as mentioned. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held that without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203.

¶8 In the present case, Appellee has only presented evidence of an unindorsed note and an “Assignment of Mortgage.” Without an indorsement on the note the Appellee cannot be a holder of the note. Therefore, from the record presented to this Court, the Appellee must assert it is a nonholder in possession who has the rights of a holder.

¶9 The assignment of a mortgage is not the same as an assignment of the note. If a person is trying to establish it is a nonholder in possession who has the rights of a holder it must bear the burden of establishing its status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. In the present case, it appears Appellee is trying to use the assignment of mortgage in order to establish the purpose of delivery. The assignment of mortgage purports to transfer “the following described mortgage, securing the payment of a certain promissory note(s) for the sum listed below, together with all rights therein and thereto, all liens created or secured thereby, all obligations therein described, the money due and to become due thereon with interest, and all rights accrued or to accrue under such mortgage.” This language has been determined by other jurisdictions to not effect an assignment of a note but to be useful only in identifying the mortgage. Therefore, this language is neither proof of transfer of the note nor proof of the purpose of any alleged transfer. See, In re Veal, 450 B.R. 897, 905 (B.A.P. 9th Cir. 2011).

¶10 Appellee must show it became a “person entitled to enforce” prior to the filing of the foreclosure proceeding. In the present case, there is a question of fact as to when and if this occurred and summary judgment is not appropriate. Therefore, we reverse the granting of summary judgment by the trial court and remand back for further determinations. If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party.

CONCLUSION

¶11 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010).

REVERSED AND REMANDED WITH INSTRUCTIONS

¶12 CONCUR: TAYLOR (This Court’s decision in no way releases or exonerates the debt owed by the defendants on this home.), C.J., KAUGER (joins Taylor, C.J.), WATT, WINCHESTER (joins Taylor, C.J.), EDMONDSON, REIF, COMBS, GURICH (joins Taylor, C.J.), JJ.

¶13 RECUSED: COLBERT, V.C.J.

FOOTNOTES

1 This opinion occurred prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)).

2 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205.

3 According to Black’s Law Dictionary (9th ed. 2009) an allonge is “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.” See, 12A O.S. 2001, § 3-204(a).

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Federal Natl. Mtge. Assn. (FANNIE MAE) v Williams | NYSC “Sewer Service, highly questionable whether Countrywide had a valid assignment of the note, MERS”

Federal Natl. Mtge. Assn. (FANNIE MAE) v Williams | NYSC “Sewer Service, highly questionable whether Countrywide had a valid assignment of the note, MERS”


Decided on January 10, 2012

District Court of Nassau County, First District

 Federal National Mortgage Association A/K/A FANNIE MAE, Petitioner(s)

against

Mary Williams, LISA WILLIAMS, “JOHN DOE” and “JANE DOE,” Respondent(s)

LT-003567-11

Rosicki, Rosicki & Associates, P.C., Attorneys for Petitioner, 51 East Bethpage Road, Plainview, NY 11803, 516-741-2585; Jeffrey A. Siegel, Esq., Volunteer Lawyers Project, Attorneys for Respondent, One Helen Keller Way, Hempstead, NY 11550, 516-292-8100.

Scott Fairgrieve, J.

Petitioner Federal National Mortgage Association a/k/a Fannie Mae (hereinafter referred to as petitioner) commenced this holdover action to recover possession of 74 a/k/a 72 Laurel Avenue, Hempstead, New York from the respondents Mary Williams and Lisa Williams.

Petitioner contends in paragraph 6 of the petition, dated June 16, 2011, that it became the owner of said premises pursuant to a public sale on March 2, 2010 when a referee’s deed was duly executed to petitioner.

Respondent Mary Williams has moved pursuant to CPLR Sec. 3211(A)(1), (3) and (7), and RPAPL Sections 713(5), 721 and 741 to dismiss the petition. Respondent Mary Williams contends that petitioner lacks standing to commence this summary proceeding due to defective assignment of the note and mortgage in the underlying foreclosure.

Respondent states that Michael Eastman and Veronica Eastman executed a note and mortgage, both dated May 12, 2006, in favor of Cambridge Home Capital LLC.

Cambridge Home Capital LLC appointed Mortgage Electronic Registration Systems, Inc. (MERS) as its nominee with respect to recording of said mortgage executed by Michael Eastman and Veronica Eastman; this language is reflected in said mortgage as follows:

FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD.

On August 13, 2007, plaintiff Countrywide Home Loans filed the summons and verified complaint in the Office of the Nassau County Clerk. The verified complaint dated August 10, 2007 alleges in paragraph 3 that:

On or about May 12, 2006, MICHAEL EASTMAN; VERONICA EASTMAN executed and delivered to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ACTING SOLELY AS NOMINEE FOR CAMBRIDGE HOME CAPITAL, LLC., a note bearing date that day, whereby MICHAEL EASTMAN; VERONICA EASTMAN covenanted and agreed to pay the sum of $342900.00, with interest on the unpaid balance thereof, at the rate of 7.25 percent per annum, to be computed from the date of said note, by payments of $2,071.69 on July 1, 2006 For the first 120 months and thereafter in payments of $2,710.20 on the like date of each subsequent month, until said note is fully paid, except that the final payment of principal and interest remaining due, if not sooner paid, shall become due and payable on June 1, 2036.

A review of the note executed by Mr. & Mrs. Eastman reveals no reference of the note being executed and delivered to MERS or to Countrywide Home Loans, Inc. Paragraph 4 of the verified complaint alleges:

As collateral security for the payment of said indebtedness, the aforesaid defendant(s) MICHAEL EASTMAN; VERONICA EASTMAN, also executed, acknowledged and delivered to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ACTING SOLELY AS NOMINEE FOR CAMBRIDGE HOME CAPITAL, LLC., a mortgage dated May 12, 2006 and recorded in the County of Nassau on June 7, 2006 in Liber/Reel D30580 of Mortgages, at page 979-995. The mortgage tax was duly paid. The aforesaid instruments were thereafter assigned to Plaintiff.

Said mortgaged premises being known as and by street address: 72 Laurel Avenue, Hempstead, NY 11550 bearing tax map designation: Dist:Section: 34Block: 377Lot(s): 146-147

which premises are more fully described in Schedule “A,” annexed hereto and made a part hereof.

Plaintiff claims in paragraph 4 of the verified complaint that the note and mortgage were assigned to plaintiff prior to commencing the foreclosure action. This statement may be unfounded. The said note executed by the Eastmans was endorsed in blank by Craig J. Hyman, Vice President/Member of Cambridge:

Pay to the Order of Without Recourse

CAMBRIDGE HOME CAPITAL LLC [*2]

/s/ Craig J. Hyman

BY: CRAIG J. HYMAN

VICE PRESIDENT/MEMBER

However, there is no evidence to demonstrate that this note was in fact assigned to Countrywide Home Loans, Inc. prior to or at the time it commenced the foreclosure action.

The said mortgage was assigned from MERS as nominee for Cambridge Home Capital, LLC to Countrywide Home Loans, Inc. on January 8, 2008, which is 5 months after Countrywide began the foreclosure action.

The said property was purchased on March 2, 2010 at the foreclosure sale by Countrywide Home Loans, Inc. for the sum of $470,090.47.

On March 2, 2010, Rosicki, Rosicki and Associates, on behalf of Countrywide Home Loans, Inc., assigned the bid for said property to Federal National Mortgage Association a/k/a Fannie Mae. Rosicki, Rosicki and Associates accepted the bid on behalf of Federal National.

Petitioner became the owner pursuant to a referee’s deed in foreclosure dated March 8, 2010 and recorded on May 18, 2010.

Petitioner points out that respondent Mary Williams was served personally on September 11, 2007 with the summons and complaint in the foreclosure action, but was sued as a “Jane Doe No.1.” Respondent Mary Williams defaulted in answering the summons and complaint.

The evidence demonstrates that Mary Williams was originally sued as a Jane Doe with no effort being made to ascertain if she resided at the said premises as a tenant. Petitioner did a search of the Nassau County Clerk records but no recorded lease was found.

Petitioner moved to amend the pleadings in February of 2008 to substitute the name Mary Williams for Jane Doe by the submission of the affirmation of Josephine Sangiorgio, Esq., dated February 1, 2008. Thereafter, the judgment of foreclosure and sale was served upon the Eastmans and Mary Williams. No explanation is provided by Countrywide as to how it discovered that Mary Williams was a tenant at the premises and why this information was not ascertained when the action for foreclosure was commenced in the Supreme Court.

Respondent Mary Williams is a Section 8 tenant who has lived at the premises since July 2006. Ms. Williams recertified in June of 2011 and is effective until July 1, 2012.

The issue for this court to decide is whether it has jurisdiction to decide any of the issues raised by respondent in connection with the foreclosure. [*3]

The court agrees that service upon Mary Williams in the foreclosure action was probably invalid. It does not appear that Plaintiff Countrywide made “timely efforts” to ascertain the identity of Mary Williams prior to commencing the foreclosure action. See Porter v. Kingsbrook OB/Gyn Assoc., 209 AD 497, 618 NYS2d 837 (2nd Dept 1994); Tucker v. Lorieo, 291 AD2d 261, 738 NYS2d 33 (1st Dept 2002); and Countrywide Home Loans v. Williams, 20 Misc 3d 1111(A), 867 NYS2d 16 (NY Dist Ct 2008).

Furthermore, it is highly questionable whether Countrywide Home Loans, Inc. had a valid assignment of the note at the time of commencement of the suit. See Bank of New York v. Silverberg, 86 AD3d 274, 926 NYS2d 532 (2nd Dept 2011) holding that a plaintiff which never was an actual assignee or holder of note at the time of commencement of the suit lacked standing to commence the foreclosure action.

If Countrywide lacked standing to bring the foreclosure action due to not being an assignee of the note or holder of same, then any subsequent transfer of title to Federal National Mortgage Association a/k/a Fannie Mae would be a nullity.

However, the foregoing issues raised by respondent cannot be addressed in this court. See Nassau Homes Corp. v. Shuster, 33 Misc 3d 130(A), 2011 WL 4952990 (App Term, 9th & 10th Jud Dists 2011) holding that:

The District Court properly found that petitioner had established its ownership of the subject premises, as evidenced by a certified copy of the referee’s deed, and that petitioner had properly served occupant with a notice to quit. Occupant’s only challenge to this proceeding appeared to be based upon objections to the foreclosure proceeding itself. However, the judgment of foreclosure and sale was final as to all issues and defenses that might have been litigated in the foreclosure action (see Cherico v. Bank of NY, 211 AD2d 961 [1995]), and the Supreme Court’s determination is not subject to collateral attack in the District Court (see Banker’s Trust v. Corbin, 14 Misc 3d 136[A], 2007 NY Slip Op 50239[U] [App Term, 2d & 11th Jud Dists 2007]). Thus, as occupant has shown no basis to disturb the final judgment, the final judgment is affirmed.

Based upon the foregoing, since respondent has raised serious issues concerning the foreclosure, this court will stay these proceedings until March 15, 2012, to afford respondent an opportunity to address all issues in the Supreme Court Nassau County. Unless the Supreme Court has granted a stay to respondent Mary Williams or has vacated the foreclosure judgment, then this case will proceed to trial on March 19, 2012.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE [*4]

Dated:January 10, 2012

CC:Volunteer Lawyers Project

Rosicki, Rosicki & Associates, P.C.

SF/mp

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Davis v. U.S. Bank – Nevada Supreme Court to determine the legality of MERS foreclosures. Oral Argument: 01/04/2012 at 10:00 AM

Davis v. U.S. Bank – Nevada Supreme Court to determine the legality of MERS foreclosures. Oral Argument: 01/04/2012 at 10:00 AM


Docket: Read from top to Bottom

ANDREW DAVIS AND LAURETTA DAVIS,
Appellants,

VS.

US BANK, NATIONAL ASSOCIATION AS
TRUSTEE,
Respondent.

06/29/2010 Notice of Appeal Documents – Certified Copy of Notice of Appeal/Settlement Filed Certified Copy of Notice of Appeal/Settlement. Notice Re Settlement Conference Program and Suspension of Rules mailed to all counsel. (The requesting of transcripts and briefing are stayed pursuant to NRAP 16(a)(1). Docketing Statement Form mailed to counsel for appellant(s).) 10-16890
06/29/2010 Filing Fee – Filing Fee due Filing Fee due. Filing fee will be fowarded by the District Court.
06/30/2010 Filing Fee – Filing Fee Paid with Efiling Received Filing Fee Paid on Filing. $250.00 from Mark Mausert, Esq. Check No. 1311.
07/02/2010 Notice/Outgoing – Notice to File Documents Issued Notice to File Documents. It has been determined that this appeal willl not be scheduled for settlement conference. Transcript request form due: 15 days. Opening Brief due: 120 days. 10-17323
07/19/2010 Docketing Statement – Docketing Statement Filed Docketing Statement. 10-18354
07/30/2010 Transcript – Notice from Court Reporter Filed Notice from Court Reporter. Stephanie Koetting stating that the requested transcripts were delivered. Dates of transcripts: 06/08/10. 10-19737
08/03/2010 Notice/Outgoing – Notice to Request Transcripts Issued Notice to Request Transcripts. 10-19978
08/04/2010 Transcript Request – Request for Transcript of Proceedings Filed Request for Transcript of Proceedings. Transcripts requested: 06/08/10. To Court Reporter: Stephanie Koetting. 10-20088
10/26/2010 Brief – Opening Brief Filed Opening Brief. 10-28063
10/26/2010 Appendix – Appendix to Opening Brief Filed Appendix to Opening Brief. 10-28065
12/06/2010 Order/Procedural – Order Denying Motion Filed Order Denying Motion to Consolidate Appeals and Granting Motion to Enlarge time to File Opening Brief and Appendix in Docket No. 56138. Opening brief and appendix in docket no. 56138 due 14 days. Nos. 56306/56138. 10-31650
12/14/2010 Notice/Outgoing – Notice to File Answering Brief Issued Notice to File Answering Brief. Due Date: 15 days. 10-32638
12/23/2010 Brief – Answering Brief Filed Answering Brief. 10-33603
01/21/2011 Brief – Reply Brief Filed Reply Brief. 11-02154
01/21/2011 Appendix – Appendix to Reply Brief Filed Appendix to Reply Brief. 11-02158
02/28/2011 Notice/Incoming – Substitution of Attorneys Filed Substitution of Attorneys. Kravitz, Schnitzer, Sloane & Johnson, Chtd. substituted in place and stead of McCarthy & Holthus as counsel for respondent Litton Loan Servicing, LP. 11-06065
03/18/2011 Motion – Motion Filed Motion to Dismiss or in the alternative, Motion to File Supplemental Brief. 11-08471
05/11/2011 Order/Procedural – Order Filed Order Dismissing Respondent Litton Loan Servicing, LP. We direct the clerk of this court to remove Litton Loan Servicing, LP from the caption in this appeal. 11-13932
06/28/2011 Order/Procedural – Order Filed Order Directing Filing of Appendix and Clarification of Counsel. Law Firm McCarthy & Holthus: 15 days to file and serve appendix. Law Firm McCarthy & Holthus and Law Firm Kravitz, Schnitzer, Sloane & Johnson: 15 days to file a response to this order, stating whether they represent US Bank, and if not, identifying US Bank’s new counsel. 11-19225
07/12/2011 Appendix – Appendix Filed Respondents Appendix. (Submitted by McCarthy & Holthus). 11-20723
07/19/2011 Motion – Response to Order Filed Response to Order for Clarification for Counsel. 11-21668
12/09/2011 Notice/Outgoing – Notice Scheduling Oral Argument Issued Notice Scheduling Oral Argument. Oral argument is scheduled or January 4, 2012, at 10:00 a.m. in Carson City for 30 minutes before the En Banc Panel. 11-37593
12/22/2011 Notice/Outgoing – Oral Argument Reminder Notice Issued Oral Argument Reminder Notice. 11-39424

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Deutsche Bank Trust Co. Ams. v Day | NYSC Denies Motion For Summary Judgment Due to Lack of Affidavits

Deutsche Bank Trust Co. Ams. v Day | NYSC Denies Motion For Summary Judgment Due to Lack of Affidavits


SUPREME COURT – STATE OF NEW YORK
IAS PART 43 – SUFFOLK COUNTY

DEUTSCHE BANK TRUST COMPANY AMERICAS
AS INDENTURE TRUSTEE FOR THE REGISTERED
HOLDERS OF SAXON ASSET SECURITIES TRUST
2005-3 MORTGAGE LOAN ASSET BACKED NOTES,
SERIES 2005-3,
Plaintiff,

-against-

DENNIS D. DAY, SMI MORTGAGE,
“JOHN DOE #1” through “JOHN DOE #12”,
the last twelve names being fictitious and unknown to
plaintiff, the persons or parties intended being the
tenants, occupants. persons or corporations, if any,
having or claiming an interest in or lien upon the
premises, described in the complaint,
Defendant, ,

EXCERPT:

The plaintiff alleges in the verified complaint that there has been compliance with RPAPL
§ 1304; however, neither a copy of the purported 90-day notice nor an affidavit of service of the
notice in compliance with RPAPI. § 1304 has been annexed to the moving papers (see, Aurora Loan
Servs., LLC v Weisblum, 85 AD3d 95, supra). Without an affidavit of service from one with
personal knowledge of compliance with the specific service requirements of RPAPI., § 1304 or, in
the alternative, an affidavit sufficient to show why the requirements of § 1304 do not apply, the
Court may not grant an order of reference.

[ipaper docId=76762366 access_key=key-17117pbrbepm49qovj6y height=600 width=600 /]

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I-Team: Nevada Supreme Court MERS Case Could Impact Homeowners

I-Team: Nevada Supreme Court MERS Case Could Impact Homeowners


This isn’t rocket science… The Banks created this unreliable system, destroyed land records, screwed the courts, screwed the counties of fees and fabricated documents that were all pre-dated in order to make them appear legit. All the Supreme Court needs to do is read Max Gardner’s Top Tips for Fake Mortgage Documents or read to spot the crime.

These are a few other interesting Nevada cases:

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

Nevada Supreme Court Reversed & Remand – “Mediation, Sanctions, MERS Failed To Produce the Deed of Trust & Any Assignments” | HEREDIA-BONNET v. LOANSTAR

LEYVA v. National Default Servicing Corp. | Nevada Supreme Court Remand and Reverse “Defective ASMT, U.C.C Article 3, No Endorsement, In Re Pasillas, Wells Fargo, MortgageIt”

PASILLAS v. HSBC Bank USA | Nevada Supreme Court Reverse “Sanctionable offenses under the Foreclosure Mediation Program, IBANEZ, AHMSI, Alleged Assignment”

8NEWS NOW-

A case before the Nevada State Supreme Court next week could have far-reaching impact on Nevadans struggling to stay in their homes. Among the issues before the justices is what proof lenders must provide to show they own the property they seek to foreclose.

[8NEWS NOW]

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Wells Fargo Bank, N.A. v Gallo | NYSC “GAP NOTE”, “GAP MORTGAGE”, “CONSOLIDATED NOTE”

Wells Fargo Bank, N.A. v Gallo | NYSC “GAP NOTE”, “GAP MORTGAGE”, “CONSOLIDATED NOTE”


NEW YORK SUPREME COURT – QUEENS COUNTY

WELLS FARGO BANK, N.A., as Trustee for
the Certificateholders of Soundview
Home Loan Trust 2007-OPT5, etc.

Plaintiff,

-against-

JOHN A. GALLO; ET AL.,

 

EXCERPTS:

A copy of a “GAP NOTE”, which John A. Gallo obtained from Option
One Mortgage Corporation, in the sum $24,654.98, dated August 13,
2007.

A copy of a “GAP MORTGAGE” dated August 13, 2007, on the subject
real property given by John A. Gallo to Option One Mortgage
Corporation, which refers to the note of August 13, 2007 in the sum
of $27,555.49. The gap mortgage was recorded on October 18, 2007.

A copy of an allonge, which refers to the note dated August 13,
2007, made by John A. Gallo, and states that the loan amount of
$335,000.00.

A consolidated note dated August 13, 2007 given by John A. Gallo to
Option One Mortgage Corporation, in the sum of $335,000.00. Said
note recites that it “AMENDS AND RESTATES IN THEIR ENTIRETY, AND IS
GIVEN IN SUBSTITUTION FOR THE NOTES DESCRIBED IN EXHIBIT A OF THE
NEW YORK CONSOLIDATION, EXTENSION, AND MODIFICATION AGREEMENT
[CEMA] DATED THE SAME DATE AS THIS NOTE”.

A copy of the CEMA, dated August 13, 2007, between John A. Gallo,
and the lender One Option Mortgage Corporation, which recites that
the total unpaid principal balance of the notes is $335,000.00, and
that $27,555.49 was advanced to the borrower or on his account,
immediately prior to the consolidation.

An assignment dated November 17, 2007, and recorded on January 31,
2008, by H & R Block Mortgage Corporation to Option One Mortgage
Corporation, of the mortgage pertaining to the subject property
dated and recorded on August 3, 2006 given by John A. Gallo to H &
R Block Mortgage Corporation.

An assignment of the mortgage on the subject property by Sand
Canyon Corporation, formerly known as Option One Mortgage
Corporation to Wells Fargo, dated December 18, 2009, and recorded
on January 11, 2010.

Plaintiff has also submitted an affidavit from Michelle
Halyard, a vice president of American Home Mortgage Servicing Inc.,
who states that this entity is the loan servicing agent and
attorney in fact for Wells Fargo. She states that Mr. Gallo failed
to make all of the monthly payments of due as required by the note
and mortgage, and sets forth the date of default as April 1, 2009
and recites that amounts due for principal, interest, late charges
and advances for taxes, hazard insurance, appraisal and inspections
for a total of $370,428.92. Plaintiff has also submitted a copy of
the May 16, 2008 limited power of attorney appointing Option One
issued in connection with the servicing of certain mortgage loans.

 […]

Therefore, as plaintiff may not rely upon the consolidated
note and as it has not established that it was in possession of
the original note at the time it commenced the within action, it
lacks standing to maintain this foreclosure action.

[ipaper docId=76277397 access_key=key-g2rjreovpt33g9od1y0 height=600 width=600 /]

 

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Wells Fargo Bank, N.A. v McNee | NYSC “Court is not persuaded by Wells Fargo’s laborious interpretation of the myriad of transfer documents”

Wells Fargo Bank, N.A. v McNee | NYSC “Court is not persuaded by Wells Fargo’s laborious interpretation of the myriad of transfer documents”


SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND

WELLS FARGO BANK, N.A.
3476 Stateview Boulevard
Ft. Mill, SC 29715

Plaintiff,

-against-

TINA McNEE, NEW YORK CITY ENVIRONMENTAL
CONTROL BOARD, NEW YORK CITY TRANSIT
ADJUDICATION BUREAU, PEOPLE OF THE
STATE OF NEW YORK, WELLS FARGO BANK,
N.A., CHRISTINE EAGLES and JAMES EAGLES,
Defendants.

EXCERPT:

Plaintiff’s arguments notwithstanding, this Court is not persuaded by Wells Fargo’s laborious
interpretation of the myriad of transfer documents or the breadth of the language employed therein
to confer standing upon it. “[L]anguage cannot overcome the requirement that the foreclosing party
be both the holder or assignee of the subject mortgage, and the holder or assignee of the underlying
note at the time a foreclosure action is commenced” (Bank of NY v. Silverberg, 86 AD3d 274, 283).
In this case, Wells Fargo has adduced no proof in opposition to McNee’s cross motion(s) sufficient
to demonstrate that it was either. Plaintiff at bar clearly divested itself of the note and mortgage
as early as March of 2007, when it sold both to Barclays Bank. It is alleged that Barclays thereafter
divested itself of the note and mortgage on or about May 31, 2007, but it does not appear whether
or when either came back into the possession of Wells Fargo prior to the commencement of this
action on February 8, 2008. Hence, plaintiff has failed to demonstrate, prima facie or otherwise that
it was, in fact, the holder of the McNee note and mortgage at the time the action was commenced.
Neither has plaintiff demonstrated “by a preponderance of the evidence” (id. at 281-282, quoting
Bank of N.Y. v. Alderazi, 28 Misc3d 376, 379-380 [Sup Ct, Kings Co 2010]), that it was acting in
the capacity of, e.g., an agent of Deutsche Bank5.

It is well settled that “[s]tanding requires an inquiry into whether a litigant has an interest…in
the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the
litigant’s request” (Carprer v. Nussbaum, 36 AD3d 176 [internal quotation marks omitted]; Wells
Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239). Where the issue of standing is raised by
a defendant, a plaintiff must prove its standing in order to be entitled to relief (see US Bank N.A. v.
Collymore, 68 AD3d 752, 753; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d at 242).
In an action, as here, to foreclose a mortgage, a plaintiff’s standing is normally dependant on
its status as both the holder or assignee of the subject mortgage and the holder or assignee of the
underlying note at the time the action is commenced (see US Bank, N.A. v. Collymore, 68 AD3d at
753; cf. Bank of NY v. Silverberg, 86 AD3d at 283). As a general rule, once the promissory note
is tendered to and accepted by an assignee, the mortgage passes as an incident to the note (see
Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 AD3d 674); However, the opposite is not true.
“[A] transfer of the mortgage without the debt is a nullity, and no interest is acquired by it. The
security cannot be separated from the debt and exist independently of it” (Merritt v. Bartholick, 36
NY 44, 45). Accordingly, a mortgage cannot be foreclosed by someone who has failed to
demonstrate a right of recovery on the debt (see FGB Realty Advisors v. Parisi, 265 AD2d 297, 298;
Bergman on New York Mortgage Foreclosures §12.05[1][a][1991]). As the First Department held
in Katz v. East-Ville Realty Co., (249 AD2d 243, 243), a “[p]laintiff’s attempt to foreclose upon a
mortgage in which he had no legal or equitable interest [is] without foundation in law or fact” (see
Kluge v. Fugazy, 145 AD2d 537). Hence, Wells Fargo’s attempt to foreclose upon the subject
mortgage must be denied, the complaint dismissed, and McNee’s cross-motion(s) to dismiss for lack
of standing pursuant to CPLR 3211(a)(3) granted.

In view of this finding, the remaining grounds for relief in plaintiff’s motion have been
rendered academic.

[ipaper docId=76277429 access_key=key-sy9k2r0qudu545wmvlm height=600 width=600 /]

 

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EMC Mtge. Corp. v Carlo | NYSC Vacates Foreclosure Sale, Plaintiff has not demonstrated ownership of the mortgage and note prior to commence foreclosure action

EMC Mtge. Corp. v Carlo | NYSC Vacates Foreclosure Sale, Plaintiff has not demonstrated ownership of the mortgage and note prior to commence foreclosure action


SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND

EMC MORTGAGE CORPORATION,
Plaintiff

against

FRED J. CARLO,
BOARD OF DIRECTORS OF
DEBMOR ESTATES HOMEOWNERS ASSOCIATION, INC.,
BOARD OF MANAGERS OF DEBMOR ESTATES CONDOMINIUM III,
NEW YORK CITY ENVIRONMENTAL CONTROL BOARD,
NEW YORK CITY TRANSIT ADJUDICATION BUREAU,
PEOPLE OF THE STATE OF NEW YORK, and
MRS. CARLO

Excerpt:
Conclusion

It is the finding of this court that the New York Supreme Court has jurisdiction to
adjudicate mortgage foreclosure matters. That is not the issue. Here, the plaintiff failed to have
ownership of the mortgage and note at the time it filed and served its summons and complaint
with the Richmond County Clerk. Therefore, the plaintiff lacked standing to commence this
action at the time.

Here, the default judgment of foreclosure and sale was taken while the defendant was
unrepresented by counsel. Consequently, he had no legal understanding of making an earlier
technical motion to challenge the standing of the plaintiff. Since the notice of the sale is
defective, the sale must set aside. Moreover due to the failure of the plaintiff to have ownership
of the note and mortgage at the time it commenced this action, it lacked the capacity and standing
to bring this action and to file a notice of pendency. Therefore, this action must be dismissed,
without prejudice.

[ipaper docId=76195227 access_key=key-1w65ml9txi5dz1f9a5ih height=600 width=600 /]

 

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U.S. Bank N.A. v Mollah | NYSC Denies Wells Fargo s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Records Summary Judgment

U.S. Bank N.A. v Mollah | NYSC Denies Wells Fargo s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Records Summary Judgment


NEW YORK SUPREME COURT – QUEENS COUNTY

U.S. BANK N.A.,
Plaintiff,

-against-

MOHAMMED MOLLAH, et al.,
Defendants.

Excerpt:
Defendant, Wells Fargo Home Mortgage s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Record’s motion for an order pursuant to RPAPL 1521 granting summary judgment on its twenty-second affirmative defense that said defendant’s lien is superior to plaintiffs by virtue of the fact that said defendant’s lien is recorded prior to plaintiffs is hereby denied.

[ipaper docId=76193823 access_key=key-9vtffm9a40zflgd2ztx height=600 width=600 /]

 

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Deutsche Bank Natl. Trust Co. vs. Alvarado | NYSC “Greg Schleppy, Sr VP of Carrington Affidavit Fail, Not supported by a copy of the purported recorded deed

Deutsche Bank Natl. Trust Co. vs. Alvarado | NYSC “Greg Schleppy, Sr VP of Carrington Affidavit Fail, Not supported by a copy of the purported recorded deed


DEUTSCHE BANK NATIONAL TRUST
COMPANY AS INDENTURE TRUSTEE FOR NEW
CENTURY HOME EQUITY LOA.N TRUST 2005·3,
Plaintiff,

-against-

CECILIA ALVARADO INDIVIDUALLY AND
AS SURVIVING JOINT TENANT OF JORGE
ALVARADO, JORGE ALVARADO A/K/A JORGE
ALVARADO JR. A/K/A GEORGE ALVARADO AS
SURVIVING JOINT TENANT OF JORGE
ALVARADO, NEW CENTURY MORTGAGE
CORPORATION, UNITED STATES OF AMERICA,
NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, TARGET NATIONAL
BANK, CACH LLC, MIDLAND FUNDING LLC,
PORTFOLIO RECOVERY ASSOCIATES LLC,
NORTH STAR CAPITAL ACQUISITION LLC,
DISCOVER BANK, BETHPAGE FEDERAL
CREDIT UNION

[ipaper docId=75727206 access_key=key-1wuto0wfpfd59cpmsblg height=600 width=600 /]

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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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MERS lost its petition for review to the Texas Supreme Court: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR GREENPOINT FUNDING v. NANCY GROVES

MERS lost its petition for review to the Texas Supreme Court: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR GREENPOINT FUNDING v. NANCY GROVES


Here is the Link: http://www.supreme.courts.state.tx.us

ORDERS ON PETITIONS FOR REVIEW

THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:

11/ 0555

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR GREENPOINT FUNDING v. NANCY GROVES; from Harris County; 14th district (14/10/00090/CV, ___ SW3d ___, 04/12/11)

In The
Fourteenth Court of Appeals

NO. 14-10-00090-CV

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR GREENSPOINT FUNDING, Appellant

V.

NANCY GROVES, Appellee

On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2009-29112

EXCERPT:

A justiciable controversy between the parties must exist at every stage of the legal proceedings. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). We cannot decide moot controversies. Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). In order to maintain a suit to quiet title, there must be an assertion by the defendant of a claim to some interest adverse to plaintiff‘s title; and the claim must be one that, if enforced, would interfere with the plaintiff‘s enjoyment of the property. Mauro v. Lavlies, 386 S.W.2d 825, 826–27 (Tex. Civ. App.—Beaumont 1964, no writ) (internal quotation omitted) (no justiciable controversy existed because the judgments defendants obtained against plaintiffs asserted no claims against plaintiffs‘ property and defendants made no attempt to create a lien upon property or to have property sold to satisfy judgments).

Groves alleged in her petition that MERS‘s deed of trust purported to create a lien for security purposes on Plaintiff‘s property as described.? This alleged lien constitutes an adverse interest to Groves‘s title, which, if enforced, would interfere with her enjoyment of the property. See id. Therefore, a justiciable controversy existed, and the trial court had subject matter jurisdiction over the case. See Williams, 52 S.W.3d at 184; Mauro, 386 S.W.2d at 826–27.4

We overrule MERS‘s second issue.

CONCLUSION

Having overruled both of MERS‘s issues on appeal, we affirm the trial court‘s judgment.

[ipaper docId=75185563 access_key=key-2l0ldzmnx90teki0jlle height=600 width=600 /]

 

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NUCLEAR, NUCLEAR BOMBSHELL!!!!! FLORIDA SUPREME COURT RESURRECTS PINO v. BONY

NUCLEAR, NUCLEAR BOMBSHELL!!!!! FLORIDA SUPREME COURT RESURRECTS PINO v. BONY


H/T Matt Weidner

As reflected above, the Fourth District certified this issue to be one of great public importance, and in doing so, noted that “many, many mortgage foreclosures appear tainted with suspect documents” and that Pino’s requested remedy, if imposed, “may dramatically affect the mortgage foreclosure crisis in this State.” Pino, 57 So. 3d at 954-55.


Supreme Court of Florida

No. SC11-697

ROMAN PINO,
Petitioner,

vs.

THE BANK OF NEW YORK, etc., et al.,
Respondents.

[December 8, 2011]

PER CURIAM.

The issue we address is whether Florida Rule of Appellate Procedure 9.350 requires this Court to dismiss a case after we have accepted jurisdiction based on a question certified to be one of great public importance and after the petitioner has filed his initial brief on the merits.1 This narrow question arose after the parties to this action filed a joint Stipulated Dismissal, which advised that they had settled this matter and stipulated to the dismissal of the review proceeding pending before this Court. It cannot be questioned that our well-established precedent authorizes this Court to exercise its discretion to deny the requested dismissal of a review proceeding, even where both parties to the action agree to the dismissal in light of an agreed-upon settlement. The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.

[…]

[ipaper docId=75141917 access_key=key-10ukvw841p3aqsqqo53z height=600 width=600 /]

 

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Future of foreclosures in N.J. hinges on state Supreme Court decision | US Bank N.A. v. Guillaume

Future of foreclosures in N.J. hinges on state Supreme Court decision | US Bank N.A. v. Guillaume


I disagree with the judge’s motion words below and see video below as to why even attorney’s have a difficult time.

“I have a lot of problems with saying that all that’s going, with all this evidence of [c]ourt process for over a year, to just rely on trying to negotiate something with the bank was like sticking your head in the sand.

This wasn’t going to go away and they
didn’t get any assurance from the bank that
they were succeeding in their negotiation
efforts or that an answer to the complaint
was not required. I mean they just focused
on one path. And they ignored the
negotiation path and they ignored the
litigation side of things. You can’t do
that.

And I have to say that . . . Mrs.
Guillaume was being so aggressive and so
persistent in trying to negotiate and going
to all these different places to get help,
but the one place she wasn’t going was a
member of the bar, a lawyer which is usually
what you do when you get [c]ourt papers.

Or if you absolutely can’t afford a
lawyer and that’s the case of many
foreclosures, a very heavy self-represented
area of the law to at least contact the
[c]ourt yourself and you send in some
rudimentary answer. And it doesn’t have to
be fancy. I mean you write a letter to the
foreclosure unit, they’ll stamp contested on
it.

Because I’ve seen so many of them long
hand. But nothing was done. And I don’t
regard that as excusable neglect. So that
prong is lacking.”  

(emphasis added).

Simply wrong, one does NOT understand how frustrating it is to even try to get anyone from the “bank” on the phone, attempting a modification as we have read time and time again were nothing but DISASTROUS and GOING ABSOLUTELY NO PLACE!

[Please watch Michigan Atty Vanessa Fluker and you’ll understand why].

Lets not forget, this reversal that goes to the heart of this from out of New Jersey: BANK OF NEW YORK vs. LAKS | NJ Appeals Court Reversal “A notice of intention is deficient…if it does not provide the name and address of the lender”

NJ.COM-

In the nearly five months since the state Supreme Court effectively allowed six of the country’s biggest banks to begin filing foreclosures again, attorneys and court officials have been expecting a flood of new filings to hit the courts.

Except it hasn’t happened. Foreclosure filings are down 83 percent as of October this year, compared with the same time period last year, according to court figures, and there are at least 100,000 cases either pending in the system or waiting to be submitted.

Attorneys involved in the work in New Jersey point to at least one reason for the significant delay: a court case that has reached the state Supreme Court, with oral arguments on Wednesday.

The case, US Bank National Association v. Guillaume, is important because the court …

[NJ.COM]

[ipaper docId=74692087 access_key=key-1xrvd0kemha1r7mycu2h height=600 width=600 /]

 

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FL Supreme Court: IN RE: IMPLEMENTATION OF COMMITTEE ON PRIVACY AND COURT RECORDS RECOMMENDATIONS—AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE; etc.

FL Supreme Court: IN RE: IMPLEMENTATION OF COMMITTEE ON PRIVACY AND COURT RECORDS RECOMMENDATIONS—AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE; etc.


Supreme Court of Florida
____________
No. SC08-2443
____________

IN RE: IMPLEMENTATION OF COMMITTEE ON PRIVACY AND COURT RECORDS RECOMMENDATIONS—AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE; THE FLORIDA RULES OF JUDICIAL ADMINISTRATION; THE FLORIDA RULES OF CRIMINAL PROCEDURE; THE FLORIDA PROBATE RULES; THE FLORIDA SMALL CLAIMS RULES; THE FLORIDA RULES OF APPELLATE PROCEDURE; AND THE FLORIDA FAMILY LAW RULES OF PROCEDURE.

[November 3, 2011]

REVISED OPINION

[ipaper docId=72694423 access_key=key-lsmwivqrk2m8i7tfzz6 height=600 width=600 /]

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FREMONT v. DAVILAR | NYSC Vacates Judgment Of Foreclosure – Pro SE SLAMS Fremont, Trying To Foreclose After It Went Out Of Biz Thanks To MERS

FREMONT v. DAVILAR | NYSC Vacates Judgment Of Foreclosure – Pro SE SLAMS Fremont, Trying To Foreclose After It Went Out Of Biz Thanks To MERS


FREMONT INVESTMENT & LOAN,

Plaintiff,

-against-

ANDREA A. DAVILAR, et al.

Defendants.

EXCERPT:

In this matter, it is the contention of Defendant HSBC BANK USA, as trustee was the holder of the note from the time the action was commenced and that Fremont has misrepresented to this court its ownership status and its standing to foreclose…

[…]

[ipaper docId=72217188 access_key=key-d1v3anm8h5x8j7xlazk height=600 width=600 /]

 

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GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Advertise your business on StopForeclosureFraud.com

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