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[VIDEO] NH Supreme Court Oral Argument of DEUTSCHE BANK v. KEVLIK

[VIDEO] NH Supreme Court Oral Argument of DEUTSCHE BANK v. KEVLIK


Via: Mike Dillon

Excerpt:

Judge: I went through the material that you attached and I was very confused about IndyMac’s role and how we ended up with a foreclosure deed that didn’t reflect IndyMac’s role…can you explain?

Attorney Sheridan for the Kevlik’s  replies… There’s nothing in the record that explains MERS’ role! […] No power to assign… What happened to OneWest bank???

Go on to the link to video below…

  • 2010-0249

[View Video/Audio]

Deutsche Bank National Trust Co.
OM
(John T. Precobb)
(15 min.)
v. James Kevlik & a.
William C. Sheridan
(15 min.)

After you watch the video come back and read…

New Hampshire Supreme Court Reversal “Plaintiff has not carried its burden to show ownership of the property” DEUTSCHE BANK v. KEVLIK

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New Hampshire Supreme Court Reversal “Plaintiff has not carried its burden to show ownership of the property” DEUTSCHE BANK v. KEVLIK

New Hampshire Supreme Court Reversal “Plaintiff has not carried its burden to show ownership of the property” DEUTSCHE BANK v. KEVLIK


DEUTSCHE BANK NATIONAL TRUST COMPANY

v.

JAMES KEVLIK & a.

No. 2010-249.

Supreme Court of New Hampshire.

Argued: February 17, 2011.

Opinion Issued: April 28, 2011.

Orlans Moran, PLLC, of Boston, Massachusetts (John T. Precobb on the brief and orally), for the plaintiff.

William C. Sheridan, of Londonderry, on the brief and orally, for the defendants.

CONBOY, J.

The defendants, James Kevlik, Catherine Kevlik, and Patricia Durgin, appeal an order of the Derry District Court (Coughlin, J.) denying their motion to dismiss and granting judgment to the plaintiff, Deutsche Bank National Trust Company, in its action for possession of real estate located in Chester. See RSA 540:12 (2007). We reverse.

The following facts are supported by the record or are undisputed. Through its attorney, the plaintiff filed a landlord and tenant writ, alleging that: (1) the plaintiff was entitled to possession of the property; (2) the defendants had been provided with an eviction notice; and (3) the defendants had refused to deliver the property. In the eviction notice, attached to its writ, the plaintiff alleged that it was the current owner of the property “as a result of the foreclosure of a [m]ortgage, which foreclosure sale was held at the [p]roperty on June 12, 2009.” On the day of the merits hearing, the defendants filed a motion to dismiss asserting that a foreclosure sale had never taken place.

At the merits hearing, the Kevliks appeared without counsel. Defendant Durgin did not appear. The plaintiff’s attorney appeared without his client and proffered copies of the landlord and tenant writ with an “affidavit of ownership,” a foreclosure deed with an attached statutory affidavit, and a mortgage assignment, all of which the trial court allowed into evidence over the defendants’ objection. The assignment, dated on January 25, 2009, indicates a transfer of a mortgage executed by defendant Patricia Durgin from Mortgage Electronic Registration Systems, Inc. (as nominee of SouthStar Funding, LLC) to IndyMac Bank F.S.B. The July 20, 2009 foreclosure deed purports to describe a sale of the property from One West Bank, F.S.B., to the plaintiff at a June 12, 2009 foreclosure auction.

At the hearing, the plaintiff’s attorney admitted that the foreclosure and assignment documents were not certified and that he could not attest to their authenticity. Plaintiff’s attorney acknowledged that his firm had not handled the foreclosure sale and that he did not know what the mortgage payments had been. Until the hearing, he was not aware that the Kevliks were related to Patricia Durgin, the mortgagor, and did not know what, if any, rental agreement they had. When asked by the trial court to name a reasonable rent for the property, plaintiff’s attorney suggested five hundred dollars per month. When questioned further on that point by the trial court, he admitted he was “not from this area.”

The Kevliks argued that they had videotape evidence that no foreclosure sale had occurred. The trial court, however, refused to consider this evidence, characterizing the defendants’ argument as contesting title to the property. The trial court told the Kevliks that they would have to pay “recognizance” to the plaintiff of $348.84 per week pending their entry of an action in superior court.

The Kevliks told the trial court they did not wish to pursue the matter in superior court, but requested a continuance in order to consult with counsel. Plaintiff’s attorney did not oppose this request, stating that, “in the interest of fairness, they should have an attorney here.” However, the trial court denied the motion to continue as well as the motion to dismiss, and took the matter under advisement. Subsequently, the trial court ordered judgment in favor of the plaintiff. In its order, the trial court also stated that, “One week after the [h]earing on the [m]erits . . .[,] the tenants paid $348.84 into the Court and the Court accepted the payment. However, the Court accepted said payment with regards to an appeal to the New Hampshire Supreme Court regarding the Landlord/Tenant action and not a plea of title transfer to the Superior Court.”

The defendants moved for reconsideration, again asserting that a foreclosure sale had not, in fact, taken place. They explained that the auctioneer arrived thirty minutes late for the scheduled sale, sat in his car for five minutes, and then drove away. No buyer or anyone else appeared. The defendants argued that the plaintiff could not have purchased the mortgage at the foreclosure sale and therefore did not have standing to evict the defendants. The court denied this motion.

On appeal, the defendants argue that the plaintiff failed to carry its burden of demonstrating that it was the owner of the property, and, thus, the plaintiff is not entitled to judgment. Specifically, the defendants maintain that the documents submitted by the plaintiff’s attorney were insufficient to establish ownership because the evidence was based on “incompetent and unauthenticated hearsay.” Further, the defendants assert, the trial court should have permitted them to challenge the plaintiff’s “offer[s] of proof.”

The issue before us presents a question of statutory interpretation. We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Kenison v. Dubois, 152 N.H. 448, 451 (2005). We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. We review the trial court’s interpretation of a statute de novo. Id.

RSA 540:17 (2007) provides:

If the defendant shall plead a plea which may bring in question the title to the demanded premises he shall forthwith recognize to the plaintiff, with sufficient sureties, in such sum as the court shall order, to enter his action in the superior court for the county at the next return day, and to prosecute his action in said court, and to pay all rent then due or which shall become due pending the action, and the damages and costs which may be awarded against him.

Although the statute requires title issues to be resolved in superior court, it does not relieve a possessory plaintiff of the obligation to establish ownership of the subject property. Possessory actions are authorized by RSA 540:12, which provides that, “[t]he owner, lessor, or purchaser at a mortgage foreclosure sale of any [property] may recover possession thereof from a lessee, occupant, mortgagor, or other person in possession . . . after notice in writing to quit the same . . . .” In Liam Hooksett, LLC v. Boynton, 157 N.H. 625 (2008), we addressed the required ownership element of a possessory action brought pursuant to RSA 540:12. In that case, the defendants asserted that an individual other than the plaintiff actually owned the property. Liam Hooksett, 157 N.H. at 627. At the hearing, the plaintiff’s manager appeared on its behalf, but she did not testify that the plaintiff was the owner of the property. Id. at 628. Rather, she presented to the court an “Affidavit of Ownership/Tenancy” that purported to “certify” that the plaintiff was the owner, but the document was not notarized, signed under oath, or admitted into evidence. Id. On that record, we agreed that the plaintiff had not carried its burden to demonstrate that it was the actual owner of the property. Id. “The plaintiff filed a writ seeking possession of the property. Thus, to prevail in this action, the plaintiff was required to prove that it was the `owner, lessor, or purchaser at a mortgage foreclosure sale’ of the property.” Id. The same is true here.

Here, the plaintiff’s attorney presented, as proof of ownership, uncertified copies of a foreclosure deed and affidavit and a mortgage assignment. He did not, however, have first-hand knowledge as to the authenticity of the documents and presented no other proof of their authenticity. The rules of evidence provide that a copy of a public record is admissible only when it is either: (1) certified as correct by a custodian or other authorized person; or (2) accompanied by the testimony of a witness who has compared it to the original and found it to be correct. See N.H. R. Ev. 902(4), 1005. Because the plaintiff satisfied neither requirement, the trial court erred in admitting and relying upon these documents.

Plaintiff’s attorney also submitted a copy of the landlord and tenant writ and attachments, including an “affidavit of ownership.” This “affidavit” stated that plaintiff’s attorney was “certifying” that the plaintiff was the owner of the subject property, but the purported affidavit was not notarized or signed under oath. Further, the initials next to the name on the signature line indicate that it was actually signed by another individual, “C.M.S.” Thus, it was error for the trial court to admit and rely on that document. See Liam Hooksett, 157 N.H. at 628.

On this record, we conclude that the plaintiff has not carried its burden to show ownership of the property. Accordingly, we reverse the trial court’s decision to grant judgment to the plaintiff.

We note the limited nature of our holdings herein. Had the plaintiff proffered authenticated documents, with supporting testimony if necessary, regarding the foreclosure sale, or other proof of its ownership of the property, the trial court could have properly ruled on the issue of the plaintiff’s entitlement to possession because the defendants stated they did not wish to file a title action in superior court. The defendants would not have been able to pursue their challenge to the plaintiff’s title in the district court. See Bank of N.Y. Mellon v. Cataldo, 161 N.H. 135 (2010).

Reversed.

DALIANIS, C.J., and DUGGAN, HICKS and LYNN, JJ., concurred.

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D.C. Appeals Court REVERSAL: “TENANT AT WILL VICTORY” Banks v. Eastern Savings Bank

D.C. Appeals Court REVERSAL: “TENANT AT WILL VICTORY” Banks v. Eastern Savings Bank


MATT BANKS, APPELLANT,
v.
EASTERN SAVINGS BANK, APPELLEE.

Nos. 08-CV-16, 08-CV-1281, 09-CV-427, 09-CV-428

District of Columbia Court of Appeals.

Argued November 19, 2010.

Decided December 2, 2010.

Aaron G. Sokolow, with whom Morris R. Battino was on the brief, for appellant.
Stephen O. Hessler for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and NEWMAN, Senior Judge.
Excerpt:
We recognize the “hypertechnical” nature of this regulation and understand that no administrative action was instituted against ESB for its late notification. Nevertheless, we are persuaded that our strict adherence to statutory notice procedures compels a similar result when applying RHC regulations that affect eviction proceedings. See Ayers, 666 A.2d at 52 (strictly construing “hypertechnical” service of process statutory provisions). Therefore, because ESB’s Notice to Quit or Vacate was defective, we reverse the judgment for possession.

[…]

The trial court erred when it ordered the removal of Banks’ lis pendens notice. We therefore reverse its order.

Continue below…

[ipaper docId=44596744 access_key=key-150wctvudvztwsrbx0e4 height=600 width=600 /]

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WELLS FARGO to some…HELLS FARGOT to OTHERS! Tenants of foreclosed places with no heat or hot water, with bugs, with ceilings falling down, with mold, that's called a hole.

WELLS FARGO to some…HELLS FARGOT to OTHERS! Tenants of foreclosed places with no heat or hot water, with bugs, with ceilings falling down, with mold, that's called a hole.


Little do these people know…these banks do not care one bit! They surely didn’t care to help the owners when they had it. Only until the complaints pour in do they attempt “Damage control”!

Come here and voice your anger! … Everyone mentioned sure does stop here daily.

 

By Eileen Markey

New Legal Push For Foreclosure Victims: CITYLIMITS

Tenants have a message for the bank that holds mortgages on 10 Bronx buildings that have gone into foreclosure and disrepair: You own it, you fix it.

Thursday, Apr 22, 2010

Tenants at 3018 Heath Avenue and nine other buildings in the The Bronx have had enough. After living for years with roaches, rats, sagging ceilings, broken plumbing and long stretches without heat or hot water, they are demanding the bank that owns their buildings make repairs. The city’s Department of Housing Preservation and Development lists 756 immediately hazardous C violations against the 10 buildings.

When you live in a place with no heat or hot water, with bugs, with ceilings falling down, with mold, that’s called a hole. People should live in a home,” said Yorman Nunez, a board member of the NorthWest Bronx Community and Clergy Coalition, which helped organize the tenants. “Wells Fargo is just letting this happen.”

Wells Fargo, and its special servicer LNR Partners Inc., control the trust that holds the mortgage on the buildings. 3018 Heath Ave. and nine other buildings, formerly owned by private equity backed investor Milbank Real Estate, went into foreclosure in March 2009. Since then, tenants have been unable to get repairs, and uncertain who is in charge. So on Wednesday Legal Services NYC filed a motion in the ongoing foreclosure proceeding, begging the judge to make the bank take care of the building and its tenants while the foreclosure process continues.

The tenants position was neatly summed up in a hand-lettered sign that read: “You lend it, you mend it.”

Elected officials underscored the point.

“The lender is now the owner. They have a responsibility to maintain these buildings,” said Bronx Borough President Ruben Diaz Jr. “If Milbank couldn’t pay their mortgage, the lender, which is now the landlord, has to step up to the plate.”

In addition to Diaz, tenants were joined by City Council Speaker Christine Quinn, City Councilmember Fernando Cabrera and representatives from U.S. Rep. Jose Serrano’s office.

Stepping into a foreclosure case to seek relief for tenants is a new legal strategy, said Ed Josephson, housing coordinator for Legal Services NYC. He is one of the attorney’s working on the case. The idea is to go straight to the bank that gave the mortgage–or bought it via a mortgage-backed security–to push for repairs.

“We know what will happen when we get into court,” he said. “Everybody is going to say that they don’t have any responsibility. They structure things on purpose to avoid liability. But the point is there will be a lot of pressure on all these banks to fork of the money because they created this disaster.”

The Milbank properties are only a handful of the hundreds of rental buildings in the five boroughs that housing experts say are teetering near fiscal collapse. Bought in the heady days of the real estate boom for far more than their rents could support, and leveraged with sky-high mortgages, the buildings are going into foreclosure. Tenants, meanwhile, are left in a lurch. The Urban Homesteading Assistance Board, which has been working on issues of over-leveraged buildings since 2006, released a seven-page list of buildings it said are at risk of default.

Quinn said she knows the Milbank buildings are not isolated disasters. “We are working closely through the distressed property taskforce and we will look at other buildings where this type of lawsuit makes sense,” she said.

A hearing on the motion is scheduled for May 10 in Bronx Supreme Court.

LNR Partners declined, through a spokesperson, to comment.

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