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In re: DOBLE | CA BK Judge Rips Deutsche, MERS, LPS System & Multiple “True & Correct” Copies of Note

In re: DOBLE | CA BK Judge Rips Deutsche, MERS, LPS System & Multiple “True & Correct” Copies of Note


CESAR M. DOBLE,

v.

DEUTSCHE BANK NA T’L TRUST
COMPANY, AS TRUSTEE OF THE
HARBORVIEW MORTGAGE LOAN TRUST
2005-5, MORTGAGE LOAN PASSTHROUGH
CERTIFICATES, SERIES 2005-5
AND ONEWEST BANK, F.S.B.

Excerpts:

Instead, One West forwarded the Complaint to an outside vendor, Lender Processing Services (“LPS”), which is retained by One West to handle routine legal matters, but not litigation. LPS then exacerbated the problem by assigning an incorrect response date and sending the Complaint to the wrong outside counsel.

[…]

The most disconcerting misrepresentation to the Court was Defendants’ submission of multiple “true and correct”  copies of the Note under penalty of perjury without any endorsement from Plaza.  Whether the Note was endorsed is central to the merits ofthis case. When Defendants finally submitted an endorsed copy of the Note on November 8, 2010, they attempted to pass off the first three unendorsed copies of the Note as “illegible.” The first three copies of the Note were fully readable, so the phantom endorsement page was not a problem with legibility. The timing of this tardily produced endorsement, produced after several requests, suggests it was added only in response to the litigation.

To add to the Court’s incredulity, Defendants have never answered the Court’s specific questions as to when and under what circumstances this newly proffered endorsement was executed.

[…]

The first two causes of action seek damages and disallowance of Defendants’ secured and unsecured claims for lack of standing on four separate grounds: (a) MERS’ assignment of the DOT to One West and, in tum, One West’s assignment to Deutsche Bank, were invalid; (b) Defendants have no interest in the Note nor any right to enforce it under California law; (c) the assignment of the DOT to Deutsche Bank was not of public record; and (d) Defendants violated New York Trust law so that Deutsche Bank cannot be the owner of the Loan as a matter oflaw. Where a secured creditor cannot establish a right to enforce a loan, it has no standing to file or defend a claim, or to seek relief from stay. In re Gavin, 319 B.R. 27,32 (B.A.P. 1st Cir. 2004); In re Hayes, 393 B.R. 259,269-70 (Bankr. D. Mass. 2008).

Although the Court rejects Doble’s New York Trust claims and his avoiding power claim, the record here supports Doble’s first three standing claims. MERS had no authority to assign the DOT, under its terms and as a matter oflaw, without the authority to assign the Note. The Note was not assigned until it was endorsed by Plaza. Until that endorsement, the MERS’ assignments were a nullity. Deutsche Bank currently lacks authority to enforce the Loan as the assignee of Plaza, and will continue to lack authority until it records its assignment.

[…]

III. CONCLUSION

The Court denies Defendants’ request to set aside the clerk’s entry of a default, but grants their Motion to Dismiss the portions of the first and second causes of action relating to Doble’s New York Trust claims and avoiding power claims. Defendants’ Motion to Dismiss Doble’s third and fourth causes of action is also granted. As to the remainder of the first and second causes of action, the Court finds MERS’ limited role as beneficiary of the DOT did not provide talismanic protection against the myriad foreclosure deficiencies committed by Defendants [*47] regarding this Loan. MERS’ role did not provide Defendants the authority to enforce the DOT, the ability to assign the Note without an endorsement from Plaza, or an exception to their obligation to record the assignment to Deutsche Bank. The Court will allow Doble to produce additional evidence in support of his claims, but not his wife’s claims. The Court will disallow Defendants’ secured and unsecured claims without prejudice. Defendants may file an amended proof of claim in this case if they fully address the defects identified in this Memorandum Decision.

The Court orders Defendants to appear and show cause why they should not pay Doble’s attorneys fees for their conduct in this action, and schedules a status conference for April 28, 2011 at 3:00 in Department 1 of this Court.

Dated: April 14, 2011

/s/ Margaret M. Mann

[ipaper docId=54824981 access_key=key-1lk1l5qi5u0y0hqswz1u height=600 width=600 /]

In re: CESAR M. DOBLE, Chapter 13, Debtor,
CESAR M. DOBLE, Plaintiff,
v.
DEUTSCHE BANK NAT’L TRUST COMPANY, AS TRUSTEE OF THE HARBORVIEW MORTGAGE LOAN TRUST 2005-5, MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2005-5 AND ONEWEST BANK, F.S.B., Defendants.

Bankruptcy No: 10-11296-MM13, AP: 10-90308-MM.

United States Bankruptcy Court, S.D. California.

April 14, 2011.

MEMORANDUM DECISION RE MOTION TO VACATE CLERK’S ENTRY OF DEFAULT AND MOTION TO DISMISS COMPLAINT; ORDER TO SHOW CAUSE FOR CONTEMPT OF COURT

MARGARET M. MANN, Bankruptcy Judge

Defendants OneWest Bank, F.S.B. (“OneWest”) and Deutsche Bank National Trust Company (“Deutsche Bank”), as Trustee of the HarborView Mortgage Loan Trust 2005-5, Mortgage Loan Pass-Through Certificates, Series 2005-5 Under the Pooling and Servicing Agreement Dated June 1, 2005, were defaulted by debtor Cesar Doble (“Doble”) when they failed to timely respond to the complaint in this action (“Complaint”). The Complaint challenges Defendants’ right to assert claims based upon a loan secured by Doble’s residence, and seeks damages for Defendants’ refusal to modify the loan. After the default, Defendants brought a Motion to Vacate Clerk’s Entry of Default and a Motion to Dismiss Plaintiffs Complaint. The Court held several continued hearings on both motions, at which additional evidence and argument were presented.

Due to Defendants’ misconduct in this case and others that threatens the integrity of the judicial process the Court declines to set aside the default. The Court also issues an order to show cause why Defendants should not be held in contempt and ordered to pay Doble’s attorneys fees. Despite this ruling, the Court will not allow Doble relief he is not entitled to receive. The Court also grants much of the Defendants’ Motion to Dismiss. Further proceedings will be scheduled to determine the judgment to be entered in this case.

I. FACTUAL BACKGROUND

A. The Loan

Doble and his wife Martha Doble own a residence located at 1466 Heatherwood Avenue in Chula Vista, California (“Property”). The Property is encumbered by a deed of trust (“DOT”) securing a promissory note (“Note”) payable on its face to Plaza Home Mortgage, Inc. (“Plaza”), executed in connection with a $650,000 loan (“Loan”) made by Plaza. The DOT identifies Plaza as “Lender,” and Mortgage Electronic Registration Systems, Inc. (“MERS”) as beneficiary. The DOT grants Lender the right to repayment of the Loan and performance of Borrower’s covenants, explicitly stating that MERS “holds only legal title to the interests granted by Borrower” and MERS may exercise “any or all… interests, including … the right to foreclose and sell the Property” only “if necessary to comply with law or custom.”[1]

The Dobles defaulted on the Loan a few years later and sought to take advantage of the federal Home Affordable Mortgage Program (“HAMP”) by modifying the Loan so they could afford the payments. After a trial loan modification was granted, the Dobles made two payments in the modified amount. Despite the last payment under the modified Loan being in default, the Dobles were offered a permanent modification to the Loan, which they attempted to accept. Thereafter, the Dobles made no more payments under the Loan.

B. The Bankruptcies

Martha Doble filed a chapter 13 bankruptcy case in 2009 (Case No. 09-16970-LA13, Bankr. S.D. Cal.), which was dismissed. Doble filed this Chapter 13 bankruptcy case on June 28, 2010. The Complaint filed by Doble the day after he filed bankruptcy seeks damages and equitable relief, alleging that Defendants have no secured or unsecured claims in this case, that they violated the automatic stay by seeking to foreclose on the DOT without owning the Loan, and that they failed to discharge their responsibilities regarding modifying the Loan. Based upon a slew of contradictory documents purporting to transfer interests in the Note and DOT among the Defendants, Plaza and MERS, OneWest and Deutsche Bank have each represented to the Court to be the owner of the Loan in both cases. One West has separately asserted it is the servicer of the Loan.

C. Defendants’ Failure to Respond to the Complaint

The summons to the Complaint established a response date of July 29, 2010. Together with the Complaint, the summons was promptly served and received by Defendants. Pursuant to their servicing agreement, Deutsche Bank forwarded the Complaint to OneWest’s legal headquarters in Pasadena on July 2. Deutsche Bank then apparently did nothing further to respond to the Complaint, and OneWest misplaced the Complaint, failed to calendar a response, and did not otherwise follow-up on the matter.

The Complaint resurfaced after a response was due. When it was found on August 4, OneWest compounded the error. It did not follow internal protocol, which would have required the Complaint be sent to its litigation office in Austin, Texas, for referral to outside counsel. Instead, OneWest forwarded the Complaint to an outside vendor, Lender Processing Services (“LPS”), which is retained by OneWest to handle routine legal matters, but not litigation. LPS then exacerbated the problem by assigning an incorrect response date and sending the Complaint to the wrong outside counsel. In a final mishap, outside counsel neglected to look at the response date on the summons, and then waited another week until August 11 to request an extension. By this point, the default had already been entered.

Defendants filed their Motion to Vacate the Default and their Motion to Dismiss the Complaint on August 31, 2010. Defendants initially offered a declaration of outside counsel to explain their failure to timely respond to the Complaint. Counsel averred that he received the assignment of the Complaint on August 4, with a referral form showing a due date of August 20, although Defendants’ Motion to Vacate contrarily states Defendants mistakenly believed the due date was August 11. Counsel apparently relied upon the incorrect due date on the referral form calculated by the outside vendor, and did nothing to confirm the correct response date, which was apparent from the face of the summons. Not until August 11 did counsel contact Doble to request an extension. Defendants were already in default by this time, and the extension was denied.[2]

Because the Defendants initially provided no reason for their failure to respond to the Complaint until after the response was overdue, the Court asked a series of questions regarding the improper calendaring. In response to the Court’s questions, Defendants submitted the declaration of OneWest employee, Charles Boyle, who was resident in the Austin, Texas office. This employee averred that, after receipt of the Complaint in Pasadena, the Complaint was inadvertently logged into an automated referral system by a non-legal staff employee who has since resigned. Boyle averred this error was discovered the first week of August by a supervisor who re-referred the Complaint to local counsel.

Since Defendants had still not answered many of the Court’s questions, the Court again requested more information. Specifically, the Court requested Defendants provide more information regarding: 1) Boyle’s personal knowledge of the events in Pasadena given his residence in Texas; 2) what happened to the Complaint during the first month after it was served, and 3) why outside counsel waited seven days to contact Doble after receiving the Complaint on August 4. Finally, at the hearing on December 16, 2010, in response to questions asked from the bench, counsel for Defendants provided a more complete story: the Complaint had been lost, there were multiple departures from protocol, and several attorneys had received the Complaint and not bothered to review it. After a final attempt to clarify some of the facts pertaining to ownership of the Loan and why Defendants failed to timely respond to the Complaint, the Court took the matter under submission on February 3, 2011.

II. ANALYSIS

A. Defendants have not Demonstrated Good Cause to Vacate the Clerk’s Default

Rule 55(c) permits the Court to set aside an entry of default only “for good cause.” Defaulting parties have the burden of proving good cause. Franchise Holding II, LLC v. Huntington Restaurants Group, Inc., 375 F.3d 922, 926 (9th Cir. 2004) (quoting TCI Group Life Ins. Plan, Life Ins. Co. of N. Am. v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001)).

To determine whether good cause exists, courts consider (1) whether the default is the result of the defaulting party’s” culpable conduct”; (2) whether the defaulting party has a” meritorious defense”; or (3) whether reopening the default would “prejudice”[3] the innocent party. United States v. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010).[4] The test for good cause is disjunctive, and the defaulting party must prove all three factors favor setting the default aside. Franchise Holding, 375 F.3d at 926; Mesle, 615 F.3d at 1091. If any one factor favors upholding the default, the Court need not set it aside. Id. However, all doubt should be resolved in favor of a trial on the merits. Id. While there was no prejudice to Doble for the delayed response, the Court is without doubt that Defendants’ pervasive misconduct alone precludes a finding of good cause to set aside the default.

To determine whether Defendants have a meritorious defense, the Court has evaluated Defendants’ Motion to Dismiss, including admitting evidence and taking judicial notice as requested of the documents of public record in the case. SeeLee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). The Court agrees that Doble cannot state a claim for relief on his third, fourth, and part of his first and second causes of action, and dismisses these claims with prejudice. Upon a proper motion to enter a default judgment under Rule 55(b)(2), the Court will exercise its discretion to permit the submission of evidence from all parties on whether Doble can prove his prima facie case on the other claims. However, Defendants will be prohibited from presenting a case in defense of Doble’s claims because the default will be upheld. Fed. R. Evid. 210; Fed. R. Civ. P. 55(b)(2);

1. Defendants Are Culpable

A defendant’s conduct is culpable if it is consistent with a “devious, deliberate, willful, or bad faith failure to respond.” Mesle, 615 F.3d at 1092. Where a defendant’s actions are negligent, and not intentional, the defendant is not culpable. Id.; TCI, 244 F.3d at 698-99. For “legally sophisticated” defendants, however, intentionality is assumed because legally sophisticated parties are held to understand the consequences of their actions. Mesle, 615 F.3d at 1093. As large financial institutions, OneWest and Deutsche Bank are sophisticated parties.

Where sophisticated defendants are aware of the pendency of a suit, but are indifferent to the consequences of not responding, culpability may be found even when bad faith is absent. Franchise Holding II, 375 F.3d at 926 (defendant was culpable for failing to respond despite plaintiffs warning it would seek a default after side-agreement negotiations broke down); Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 690 (9th Cir. 1988)Oracle USA, Inc. v. Qtrax, Inc., No. C09-3334 SBA, 2010 U.S. Dist. LEXIS 97630, at *12-*13 (N.D. Cal. Sept. 3, 2010) (defendant’s conduct was culpable when defendant did not respond to accommodate the convenience of the CEO, cost considerations, and its hope for a settlement); Markel Ins. Co. v. Dahn Yoga & Health Ctrs., Inc., No. C09-1221RSM, 2010 U.S. Dist. LEXIS 58763, at *11-*15 (W.D. Wash. May 17, 2010) (defendants were culpable where one failed to keep registered service agent updated on its address and another failed to inform itself that the client had waived a service problem). (defendant was culpable in not responding due to a mistaken belief service was improper);

Defendants’ conduct can only be described as an intentional disregard for their obligations to comply with Court procedures and provide candid answers to the Court’s questions. As in Franchise II, Oracle, Direct Mail, and Markel,[5] properly calendared the response date. Whether due to apathy or profit maximizing considerations, Defendants relied exclusively upon a non-attorney outside vendor, contrary to protocol, and failed to properly implement litigation procedures. See Franchise II, 375 F.3d at 926; Oracle, 2010 U.S. Dist. LEXIS 97630, at * 10-12 (defendants failed to appropriately allocate corporate resources to respond to the litigation). This misplaced reliance on a non-attorney to calculate a response time is similar to the conduct of the defendants in Direct Mail and Markel, who erred in their analysis that service was improper. See Direct Mail, 840 F.2d at 690; Markel, 2010 U.S. Dist. LEXIS 58763, at *16 (“[Defendant] will not be heard to object that service was improper, nor blame its failure to respond … on poor document management policies.”). Defendants’ multiple errors are also thus distinguishable from Park v. U.S. Bank Nat’l Ass’n, No. 10cvf1546-WQH-WMc, 2010 U.S. Dist. LEXIS 123119, at *8-*10 (S.D. Cal. Nov. 19, 2010), where the defendants’ failure to answer was the result of an unintentional administrative error rather than culpable misconduct. While the Court appreciates that mistakes happen and isolated negligence can be excusable neglect, see Pioneer, 507 U.S. at 407-08,[6] what happened here was not mere negligence. Defendants were aware of the suit and the consequences of the default, but repeatedly failed to follow their own protocols. Defendants have never explained why none of Defendants’ three attorneys

Compounding their culpability problems, the Court finds that Defendants’ initial explanation of the default was neither candid nor credible. A “devious” failure to respond is culpable. Mesle, 615 F.3d at 1092. The full story belies their initial characterization that their errors in handling the Complaint were minor and isolated. No less than six mistakes or breaches of protocol occurred in how the Complaint was handled: (1) both copies of the Complaint were not sent immediately to Boyle in Austin, Texas, where litigation was to be handled; (2) the Complaint was lost for a month; (3) when the Complaint was found on August 4, 2010, it was not sent to Austin as protocol demanded, but mistakenly logged into the non-attorney LPS system; (4) LPS miscalculated the response date for the Complaint; (5) LPS incorrectly assigned the response to a law firm who was not the appropriate counsel to handle litigation for OneWest; and (6) Outside counsel failed to check the correct response date and relied upon the LPS miscalculation. The Court cannot accept Boyle’s claim that new intake protocols have solved OneWest’s systemic problems. Defendants themselves could not fully explain what went wrong in their efforts to respond to the Complaint. Even after three tries, Defendants have left questions unanswered.

Defendants’ disregard for their obligations of candor to the Court and compliance with Court procedures, not only in connection with the entry of default, but also in the presentation of numerous other documents to the Court on the merits, is culpable. The default will not be set aside.

2. Defendants Acted in Bad Faith

Defendants’ conduct in presenting evidence on the merits of this case and others demonstrates a callousness towards their legal obligations that amounts to bad faith; an additional reason not to set aside the default. Defendants filed numerous pleadings in this case and in the Martha Doble case seeking the Court’s assistance in enforcing the Loan.[7][8][9] tell a convoluted tale as to who owns the Loan and is thus entitled to enforce it. This Court was forced to repeatedly request additional evidence from Defendants to evaluate their own motions. Defendants’ pleadings and transactional documents

The most disconcerting misrepresentation to the Court was Defendants’ submission of multiple “true and correct” copies of the Note under penalty of perjury without any endorsement from Plaza. Whether the Note was endorsed is central to the merits of this case. When Defendants finally submitted an endorsed copy of the Note on November 8, 2010, they attempted to pass off the first three unendorsed copies of the Note as “illegible.” The first three copies of the Note were fully readable, so the phantom endorsement page was not a problem with legibility. The timing of this tardily produced endorsement, produced after several requests, suggests it was added only in response to the litigation. To add to the Court’s incredulity, Defendants have never answered the Court’s specific questions as to when and under what circumstances this newly proffered endorsement was executed. For the purpose of its analysis on the merits, the Court finds that the endorsement was not made until it was presented to the Court on November 8, 2010.[10]

This lack of candor in the presentation of evidence on the merits supports a finding of bad faith in regard to the default. The court system can only function if parties take their representations and responsibilities seriously. Chambers v. NASSCO, Inc., 501 U.S. 32, 43, 47 (1991); see also In re Snyder, 472 U.S. 634, 641 (1985). Courts have held that a lender’s actions amount to bad faith where the lender is shown to have routinely misrepresented its role in bankruptcy cases, caused unnecessary litigation, or prejudiced another party. See Ameriquest Mortg. Co. v. Nosek (In re Nosek), 609 F.3d 6, 9 (1st Cir. 2010). In two previous cases before this Court, Defendant OneWest has been ordered to show cause for failing to comply with its obligations as a party before the Court. See In re Carter, Ch. 13 Case No. 10-10257-MM13 (Bankr. S.D. Cal.); In re Telebrico, Ch. 13 Case No. 10-07643-LA13 (Bankr. S.D. Cal.). Not only in this action, but in others as well, One West has demonstrated a “confusion and lack of knowledge, or perhaps sloppiness, as to their roles.” Ameriquest, 609 F.3d at 9.[11]

Because Defendants’ conduct in not responding to the Complaint was intentional and in bad faith, the Court will not set aside the default.

B. Resolution of the Merits of the Case

To uphold the default entered against Defendants, the Court must consider both the merits of Defendants’ defense and the merits of Plaintiff’s case, as challenged in Defendants’ Motion to Dismiss. Mesle, 615 F.3d at 1094 (defaulting party must present a valid defense before court can set aside a default); Fed.R. Civ. P. 55(b); Eitel v. McColl, 782 F.2d 1470, 1471 (9th Cir. 1986); Cashco Fin. Servs. v. McGee (In re McGee), 359 B.R. 764, 771 (B.A.P. 9th Cir. 2006) (default judgment requires assessment of the merits of plaintiff’s claims).[12] This task is made more difficult since neither Doble’s Complaint, nor Defendants’ Motion to Dismiss, is a model of clarity. Five causes of action are alleged in the Complaint, but more than five are presented.

Defendants’ Motion to Dismiss complicates the analysis further since it questions a few, but not all, of Doble’s claims. Defendants claim MERS had authority to transfer the Loan as a matter of law, but not that the assignment was properly executed or acknowledged. Defendants dispute Doble’s attempt to employ 11 U.S.C. §544(a) to set aside the MERS’ assignment to OneWest. They also argue HAMP does not provide a private cause of action. Defendants do not, however, address the state law claims contained in the fifth cause of action.

Sorting the parties’ claims and defenses, the Court concludes some of Doble’s claims lack merit, and others require further evaluation. Even though the Court will uphold the default entry resulting from Defendants’ culpable conduct, it will nevertheless dismiss with prejudice Doble’s third and fourth causes of action, and part of Doble’s first and second causes of action relating to New York Trust law and 11 U.S.C. § 544(a). See Moore v. United Kingdom, 384 F.3d 1079, 1090 (9th Cir. 2004) (invalid causes of action may be dismissed despite default). The Court will hold further proceedings on the remaining claims to respect the due process rights of Defendants. Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978) (default judgment proceedings should be consistent with due process).

1. Defendants’ Secured and Unsecured Claims (1st and 2nd Causes of Action)

The first two causes of action seek damages and disallowance of Defendants’ secured and unsecured claims for lack of standing on four separate grounds: (a) MERS’ assignment of the DOT to OneWest and, in turn, OneWest’s assignment to Deutsche Bank, were invalid; (b) Defendants have no interest in the Note nor any right to enforce it under California law; (c) the assignment of the DOT to Deutsche Bank was not of public record; and (d) Defendants violated New York Trust law so that Deutsche Bank cannot be the owner of the Loan as a matter of law. Where a secured creditor cannot establish a right to enforce a loan, it has no standing to file or defend a claim, or to seek relief from stay. In re Gavin, 319 B.R. 27, 32 (B.A.P. 1st Cir. 2004); In re Hayes, 393 B.R. 259, 269-70 (Bankr. D. Mass. 2008).

Although the Court rejects Doble’s New York Trust claims and his avoiding power claim, the record here supports Doble’s first three standing claims. MERS had no authority to assign the DOT, under its terms and as a matter of law, without the authority to assign the Note. The Note was not assigned until it was endorsed by Plaza. Until that endorsement, the MERS’ assignments were a nullity. Deutsche Bank currently lacks authority to enforce the Loan as the assignee of Plaza, and will continue to lack authority until it records its assignment.

a. MERS Cannot Transfer DOT Enforcement Rights to Defendants

Defendants’ Motion to Dismiss relies upon MERS’ status as nominal beneficiary of the DOT[13] to establish their standing to enforce the Loan. They cite several cases which have so held. Lane v. Vitek Real Estate Indus. Group, 713 F. Supp. 2d 1092, 1099 (E. D. Cal. 2010); Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F. Supp. 2d 1039, 1043 (N.D. Cal. 2009); Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1190 (N.D. Cal. 2009); see also Perry v. Nat’l Default Servicing Corp., No. 10-CV-03167-LHK, 2010 U.S. Dist. LEXIS 92907, at *11 (N.D. Cal. Aug. 20, 2010).[14] The Court does not disagree with these cases to the extent they hold MERS need not have physical possession of the note to commence a foreclosure, and securitization of a mortgage note need not impact the enforceability of the mortgage itself. The key issue before the Court is different: whether MERS had statutory authority to assign the DOT under its terms, particularly when MERS held no rights under the Note. To decide this issue, the Court rejects Defendants’ invitation to overlook the statutory foreclosure mandates of California law, and rely upon MERS as an extra-judicial commercial alternative.[15]

The DOT is a four party instrument among the Dobles as Borrowers, Plaza as Lender, First American Title as trustee, and MERS as beneficiary. The Lender’s rights regarding the Loan are pervasive. The Lender (Plaza) is entitled to receive all payments under the Note, to control enforcement of the DOT under its terms, and only the Lender is entitled to conduct a nonjudicial foreclosure.[16]

MERS has none of these rights under the DOT and is not even mentioned in the Note. MERS is not given any independent authority to enforce the DOT under its terms, and its status as beneficiary under the DOT is only “nominal.” While the Borrowers acknowledge in the DOT that MERS can exercise the Lender’s rights as “necessary to comply with law or custom,[17] this acknowledgement is not accompanied by any actual allocation of authority to nonjudicially foreclose on the Property, nor is such authority allocated in any other document in the record. See also, e.g., LaSalle Bank Nat’l Ass’n v. Lamy, No. 030049/2005, 2006 NY Slip Op 51534U, slip op. 2 (N.Y. Sup. Ct. 2006); MERS v. Saunders, 2 A.3d 289, 295 (Me. 2010) (“MERS’ only right is to record the mortgage. Its designation as the `mortgagee of record’ in the document does not change or expand that right….”). Defendants’ authority to foreclose cannot, therefore, be derived from MERS because MERS never held such authority.[18] Shannon v. General Petroleum Corp., 47 Cal. App. 2d 651, 661 (1941) (assignment can only carry rights owned by the assignor.)

Even though MERS’ status as the nominal beneficiary of the DOT may have allowed it to assign that limited status, this authority does not convey a right to enforce the Loan. An assignment of a mortgage without assignment of the corresponding debt is a nullity under controlling law. Carpenter v. Longan, 83 U.S. 271, 275 (1872); Kelley v. Howarth, 39 Cal. 2d 179, 192 (1952); Johnson v. Razy, 181 Cal. 342, 344 (1919) (“A mortgage is mere security for the debt, and it cannot pass without transfer of the debt.”); Polhemus v. Trainer, 30 Cal. 686, 688 (1866) (interest in the collateral subject to the mortgage does not pass “unless the debt itself [is] assigned.”). Within California’s comprehensive statutory nonjudicial foreclosure scheme found at Civil Code sections 2920-2955, four separate statutes corroborate that the secured debt must be assigned with the deed of trust.[19]

Since MERS could not assign any enforcement rights under the Note or DOT because it held none, Defendants could not rely on the invalid MERS assignment to enforce the DOT. Polhemus, 30 Cal. at 688; see also U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 651 (2011). They had to receive an assignment from Plaza as the payee of the Note before the MERS assignment of its nominal interest in the DOT could have any enforceable impact.

b. Defendants’ Right to Enforce the Note

A negotiable promissory note such as the Note can only be enforced in accordance with Article 3 of the Commercial Code (“CCC”), Cal. Com. Code §§ 1101-16104 (Deering 2011). The CCC permits enforcement of a note by a party who: (1) holds a directly endorsed note (section 1205(21)); (2) previously had the ability to enforce the note, but it was lost, destroyed, or stolen (section 3309); (3) has possession of an endorsed-in-blank instrument (section 1205(21)); or (4) can prove both possession of the enforcement rights received from its transferor (section 3301). Id; In re McMullen Oil Co., 251 B.R. 558, 568 (Bankr.C.D. Cal. 2000); In Re Carlyle, 242 B.R. 881, 887 (Bankr. E.D. Va. 1999). These requirements apply to every link in the chain of transfer of the note. Where a note has been assigned several times, each assignment in the chain must be valid or the party claiming the note cannot enforce it. In re Gavin, 319 B.R. 27, 32 (B.A.P. 1st Cir. 2004); In re Wells, 407 B.R. 873 (Bankr. N.D. Ohio 2009). Even if a party is the owner of a promissory note, it is not entitled to enforce the note unless it meets the statutory criteria for enforcement. Cal.Com. Code §3203(b) cmt. 2.

Enforcement option 1 is not applicable. The Note is not payable to Defendants, but to Plaza. Neither Defendant can enforce the Note as a direct payee or endorsee. In re Wilhelm, 407 B.R. 392, 402 (Bankr. D. Idaho 2009); Chicago Title Ins. Co. v. Allfirst Bank, 905 A.2d 366, 374 (Md. 2006). No claim was made that the Note was lost or stolen, which eliminates option 2.

As to option 3, not until November 8, 2010 did Defendants produce the Note endorsed in blank by Plaza. An endorsement is not effective until it is signed. Com.Code §3203(c); Security Pacific Nat. Bank v. Chess, 58 Cal. App. 3d 555, 564 (1976). Until the note is properly endorsed, assignments of the deed of trust do not serve to transfer enforcement rights. Id. The endorsement must be on the note or attached. Lopez v. Puzina, 239 Cal. App. 2d 708, 714 (1st Dist. 1966).

Defendants did not attempt to demonstrate the requirements of option 4; that they had possession of the Note and that Plaza had transferred to them the right to enforce it even without an endorsement. Instead, they erroneously relied upon the MERS assignment. Com.Code § 3203 (1), (2) n. 17; In re McMullen Oil Co., 251 B.R. 558, 567 (Bankr. CD. Cal. 2000); In re Agard, No. 10-77338-reg, 2011 Bankr. LEXIS 488, at *58 (Bankr. E.D.N.Y. Feb. 10, 2011) (“[E]ven if MERS had assigned the Mortgage acting on behalf of the entity which held the Note at the time of the assignment, this Court finds that MERS did not have authority, as “nominee” or agent to assign the Mortgage absent a showing that it was given specific written directions by its principal.”). Under the circumstances of this case, the Court declines to give the Defendants another chance to “prove the transaction.” Instead, the Court finds that Defendants did not have any right to enforce the Note before November 8, 2010, when they produced an endorsement of the Note from Plaza.

c. Deutsche Bank’s Assignment of the DOT Must Still be Recorded

Although Deutsche Bank met the first of the foreclosure prerequisites to enforce the power of sale in the DOT under Civil Code section 2932.5[20] when it became the holder of the Note on November 8, 2010, it still failed to meet the second. Civil Code section 2932.5 requires that the assignee of the secured debt record its interest before it can exercise the power of sale under the DOT and nonjudicially foreclose. Deutsche Bank admits it has recorded neither of the two assignments from OneWest to Deutsche Bank. Deutsche Bank, therefore, still lacks authority to enforce the DOT, and any enforcement actions taken thus far are void. Ibanez, 458 Mass, at 651; Polhemus, 30 Cal. at 688.

d. New York Trust Law

As part of the first and second causes of action, Doble alleges that Deutsche Bank cannot own the Loan because the Loan was not properly transferred to it in accordance with New York Trust law and the trust documents. Under the terms of the Purchase and Servicing Agreement (“PSA”), Doble alleges all assets to be part of the trust had to be conveyed before June 1, 2005. Since none of the assignments of the Loan met that deadline, Doble claims Deutsche Bank has no interest in the Loan. Defendants, in turn, claim Doble has no standing to challenge the trust, citing Rogan v. Bank One, N.A. (In re Cook), 457 F.3d 561, 567 (6th Cir. 2006). While the Court agrees that Doble has no standing to interfere with trust administration, he does have standing to challenge Defendants’ assertion they had standing to file a claim and to seek to foreclose the Loan. Wilhelm, 407 B.R. at 400.

The Court nevertheless finds the allegations of this claim to be too flawed to remain a part of this suit. See Eitel, 782 F.2d at 1471. Based on the allegations of the Complaint, the Court cannot determine whether the Loan was validly conveyed to the trust, whether the trust is invalid, or what effect such an invalidation would have on Defendants’ claim.[21] Doble has provided no legal support for his claims. His citation to New York Estate Powers and Trusts Law section 7-2.4 (Consol. 2010), to support that any “sale, conveyance, or other act” in “contravention” of the trust is void, is incorrect.[22]

Doble’s New York trust claim within the first and second causes of action therefore will be dismissed with prejudice.

2. The Assignments May Not be Avoided (2nd Cause of Action)

The Court agrees that Doble has no viable avoiding power claim to assert as a result of Defendants’ recordation of assignments after the Martha Doble bankruptcy case was filed. Doble was provided constructive notice of Defendants’ lien from the recordation of the DOT, regardless of whether interests in the Loan were later transferred. In re Cook, 457 F.3d at 568; Kapila v. Atl. Mortg. & Inv. Corp. (In re Halabi), 184 F.3d 1335, 1338 (11th Cir. 1999); see also In re Probasco, 839 F.2d 1352, 1354 (9th Cir. 1988) (applying California law, a bona fide purchaser who records prevails over a prior transferee who failed to record). The Court also notes these claims are property of the Martha Doble bankruptcy estate, not this case. Doble thus lacks standing to assert this claim. See Estate of Spirtos v. One San Bernardino County, 443 F.3d 1172, 1176 (9th Cir. 2006) (husband does not have authority to assert claims on the part of wife without substantial proof of standing). This part of the second cause of action is also dismissed with prejudice.

3. Violation of Stay (3rd Cause of Action)

Doble’s third cause of action alleges[23] that Assignments 2 and 3 from OneWest to Deutsche Bank were executed post-petition in Martha Doble’s case, and are void and in violation of his co-debtor stay under 11 U.S.C. §1301. In response, Defendants assert that the stay is not violated by assignments of their mortgage interests post-petition, because those interests do not belong to Martha Doble’s bankruptcy estate.

The Court agrees that this is not a valid cause of action. Because the automatic stay only applies to transfers of a debtor’s property interests under 11 U.S.C. § 362(a)(3), Defendants’ transfers of their interests in the Loan do not violate the automatic stay. Halabi, 184 F.3d at 1337; Cook, 457 F.3d at 568. This cause of action will be dismissed with prejudice.

4. Violation of Bankruptcy Code (4th Cause of Action)

Doble specifically seeks damages and sanctions relating to Defendants’ proof of claim and false declaration filed in the relief from stay motion in Martha Doble’s case. Defendants’ only response to this is to reiterate that the unrecorded assignment is not avoidable under § 544(a). Defendants fail to address any other allegations in this cause of action.

Despite Defendants’ failure to cogently respond to this cause of action, the Court finds Doble has no standing to assert damages in his wife’s bankruptcy case. Doble was not a joint debtor in that case, and Martha Doble is not a party in this case. See In re Scott, 437 B.R. 376, 379-80 (B.A.P. 9th Cir. 2010). This cause of action is not viable to the extent it seeks damages for Doble in his wife’s case, and it will be dismissed with prejudice.

5. Loan Modification Claims (5th Cause of Action)

In the fifth cause of action, Doble alleges an array of theories complaining of Defendants’ conduct in the loan modification process, including that they engaged in unlawful business practices, violated California’s Consumer Legal Remedies Act, California Civil Code Section §§ 1750-1759, and breached the covenant of good faith and fair dealing. In response, Defendants only challenge whether HAMP establishes a private cause of action, based on Doble’s allegation he is an intended third party beneficiary under the HAMP contract.

The facts alleged in the Complaint, as well as the additional evidence proffered by the parties in response to the Court’s inquiries, reflect ongoing efforts by Doble to modify the Loan over a period of eighteen months. Doble claims the efforts were successful, and Defendants should be bound by the permanent loan modification they offered him in May 2010. Defendants claim the Loan modification effort failed because Doble failed to make all of the payments due during the trial period. To resolve this basic controversy requires further evidentiary proceedings, since the communications by Defendants were confusing and contradictory, but Doble did fail to make all of the required payments even if there was a binding loan modification with Defendants. To facilitate the evidentiary hearing, the Court will preliminarily address Doble’s theories of recovery.

Courts have differed on whether HAMP permits a private right of action. Compare Benito v. Indymac Mortg. Servs.,and Escobedo v. Countrywide, No. 09-cv-1557 BTM (BLM), 2009 U.S. Dist. LEXIS 117017, at * 4-*7 (S.D. Cal. Dec. 15, 2009) (same), with Marques v. Wells Fargo Home Mortgage Inc., No. 09-cv-1985-L (RBB), 2010 U.S. Dist. LEXIS 81879, at *19-*20(S.D. Cal. Aug. 12, 2010) (finding a borrower is a third party beneficiary with regard to certain contract terms that are not discretionary, and HAMP otherwise has no enforcement remedies). In determining whether a party is an intended beneficiary of a government contract, a court must examine “the precise language of the contract for a clear intent to rebut the presumption that the third parties are merely incidental beneficiaries.” County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1244 (9th Cir. 2009), cert. granted sub. nom, Astra USA, Inc. v. Santa Clara County, 131 S.Ct. 61 (2010) (failure to include express language identifying parties as intended beneficiaries is not dispositive). To the extent Doble can prove a specific provision of HAMP was violated, and compliance with the provision was mandatory for Defendants, he may be able to prove a valid cause of action as a third party beneficiary of HAMP. No. 2:09-CV-001218-PMP-PAL, 2010 U.S. Dist. LEXIS 51259, at *20-*21 (D. Nev. May 21, 2010) (holding a borrower is not a third party beneficiary),

Doble’s other claims are not invalid as a matter of law even if he cannot establish a direct cause of action under HAMP. Failure to establish a HAMP third party beneficiary contract cause of action does not preclude state law claims relating to the Lender’s alleged misconduct. Escobedo, 2009 U.S. Dis. LEXIS 117017, at * 10 (allowing claims for violation of unfair business practices under Cal. Bus. & Prof. Code § 17200); Villa v. Wells Fargo Bank, N.A., No. 10CV81 DMS (WVG), 2010 U.S. Dist. LEXIS 23741, at *9 (S.D. Ca. 2010) (allowing an amendment to allege misrepresentation claims); Aceves v. U.S. Bank, N.A., 192 Cal. App. 4th 218, 233 (2d Dist. 2011) (allowing promissory estoppel and fraud claims). Doble’s claims under the California Legal Remedies Act, Cal. Civ. Code §§ 1750-1759, and his claims for breach of the covenant of good faith and fair dealing, therefore, cannot be dismissed as a matter of law at this time.

C. Order To Show Cause

Based on the facts and circumstances described in this Memorandum Decision, the Court orders that Defendants appear and show cause why they should not pay Doble’s attorney’s fees for their conduct in this action. This order to show cause is issued pursuant to this Court’s authority under 28 U.S.C. § 157, 11 U.S. C. § 105, Bankruptcy Rule 9011(c)(1)(b) and the Court’s inherent power to monitor the proceedings before it for the benefit of the Court, the profession and the public. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 47 (1991); In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1305 (11th Cir. 2006) (“it is within a court’s discretion to assess attorney’s fees on a party … for actions taken in bad faith”).

III. CONCLUSION

The Court denies Defendants’ request to set aside the clerk’s entry of a default, but grants their Motion to Dismiss the portions of the first and second causes of action relating to Doble’s New York Trust claims and avoiding power claims. Defendants’ Motion to Dismiss Doble’s third and fourth causes of action is also granted. As to the remainder of the first and second causes of action, the Court finds MERS’ limited role as beneficiary of the DOT did not provide talismanic protection against the myriad foreclosure deficiencies committed by Defendants regarding this Loan. MERS’ role did not provide Defendants the authority to enforce the DOT, the ability to assign the Note without an endorsement from Plaza, or an exception to their obligation to record the assignment to Deutsche Bank. The Court will allow Doble to produce additional evidence in support of his claims, but not his wife’s claims. The Court will disallow Defendants’ secured and unsecured claims without prejudice. Defendants may file an amended proof of claim in this case if they fully address the defects identified in this Memorandum Decision.

The Court orders Defendants to appear and show cause why they should not pay Doble’s attorneys fees for their conduct in this action, and schedules a status conference for April 28, 2011 at 3:00 in Department 1 of this Court.

[1] See infra Part II.B.1.a.

[2] Doble’s reason for not agreeing to set aside the default was his frustration with the “false documents” submitted regarding ownership of the Loan.

[3] To be prejudicial, reopening the default must result in greater harm than a mere delay in relief. Mesle, 615 F.3d at 1095; see also Franchise Holding II, 375 F.3d at 926 (plaintiff was prejudiced where there was a possibility that a delay in judgment would allow defendant an opportunity to hide assets). Here, Defendants have asserted that Doble is not prejudiced by their delay and there is no evidence before the Court to the contrary. Ultimately, however, since Rule 55(c)’s good cause factors are disjunctive, and Defendants’ conduct is culpable, a prejudice analysis is unnecessary.

[4] The Rule 55(c) good cause factors are identical to those used to consider whether relief should be granted from a default judgment under Rule 60(b). See Mesle, 615 F.3d at 1091; TCI, 244 F.3d at 696. However, while the factors are the same, the standards for evaluating the factors are distinct. O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1401 (7th Cir. 1993). Rule 55(c)’s relief from default standard is less rigorous than the relief from judgment standard of Rule 60(b). Hawaii Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986) (“The different treatment of default entry and judgment by Rule 55(c) frees a court considering a motion to set aside a default entry from the restraint of Rule 60(b) and entrusts determination to the discretion of the court.”); accord Tessill v. Emergency Physician Assocs., 230 F.R.D. 287, 289 (W.D.N.Y. 2005).

[5] These three attorneys are the Deutsche Bank counsel who forwarded the Complaint to OneWest, the OneWest Corporate Legal Department who received both the OneWest Complaint it received on its own behalf and the Complaint sent by Deutsche Bank, and Burnett & Matthews, the first outside counsel who received the Complaint.

[6] This reading of culpability is consistent with the Supreme Court’s interpretation of the analogous “excusable neglect” standard of Rule 60(b)(1). Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 393, 395-97 (1993) (a party’s failure to respond is excusable if inadvertent or negligent); Mesle, 615 F.3d at 1092; Franchise Holding II, 375 F.3d at 927.

[7] In the Martha Doble case, in a Declaration filed May 4, 2010, Deutsche Bank, through its purported power of attorney, One West, claimed to be the owner of the Loan based upon a chain of assignments. Deutsche Bank claimed the same in its proof of claim. However, in this case, OneWest filed the proof of claim for the Loan identifying itself as the creditor. In this adversary case, Defendants averred MERS assigned all beneficial interest under the DOT to OneWest on October 22, 2009 and OneWest assigned all beneficial interest to Deutsche Bank in an unrecorded assignment dated May 19, 2010. This assignment to Deutsche Bank on May 19, 2010, however, is dated after Deutsche Bank averred to this Court on May 4, 2010 that it was the owner of the Loan. Separately, Deutsche Bank has also claimed it owned the Loan as of 2008 without evidentiary support.

[8] The Court on October 5, 2010 issued a tentative ruling continuing the hearing on the Motions and seeking additional evidence regarding who had the right to foreclose the Loan, and whether the Loan Modification Agreement, which Doble alleges he executed on June 3, 2010, was also executed by Defendants. The Court issued another tentative ruling on December 15, 2010 seeking an “explanation from Defendants regarding the contradictory statements submitted by Defendants under penalty of perjury in both Debtor’s and Martha Doble’s bankruptcy cases regarding the identity of the owner of the Note,” the role of OneWest, and the circumstances of the endorsement of the Note. The Court inquired twice more regarding the circumstances of the alleged loan modification and the Defendants’ default.

[9] Defendants provided the Court with an “Assignment of Deed of Trust” executed on June 26, 2009 through which MERS, as the original beneficiary, purports to assign to OneWest all beneficial interest under the DOT, “together with the Note” (“Assignment 1”). However, One West did not record its interest until after its foreclosure proceedings were started. On July 14, 2009, a Notice of Default on the loan was recorded by OneWest, even though OneWest lacked any recorded interest in the Loan at the time. Only when OneWest recorded a Notice of Sale on the Loan on October 22, 2009, did it finally record Assignment 1.

On November 24, 2009, OneWest executed, but did not record, an Assignment of Deed of Trust to Deutsche Bank “together with the Note” (“Assignment 2”). Then on May 19, 2010, OneWest executed but did not record another Assignment of Deed of Trust “together with the Note” (“Assignment 3”) to Deutsche Bank. Deutsche Bank curiously produced a copy of a power of attorney it granted to OneWest regarding ownership of the Loan. Whatever significance this power of attorney has, it does not support the assignment from OneWest to Deutsche Bank because Deutsche Bank had no apparent rights to the Loan before it received them from OneWest.

[10] This sanction is similar to the entry of a default judgment against Defendants for their bad faith failure to comply with the orders of this Court. See, e.g., Carter v. Brooms (In re Brooms), No. NC-10-1117-KiSah, 2011 Bankr. LEXIS 648, at *21 (B.A.P. 9th Cir. Jan. 18, 2011) (upholding the court’s default judgment pursuant to 7016(d) for a party’s failure to comply with a pre-trial order).

[11] Specifically, an inability to coherently prove ownership is both endemic to the industry, and a common problem. Ameriquest, 609 F.3d at 9; see also, e.g., U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011) (holding US Bank did not sufficiently demonstrate it held title to a mortgage under Massachusetts law prior to foreclosure where US Bank alleged it received title pursuant to a trust agreement and did not provide the trust agreement but, instead, provided an unsigned offer of mortgage-backed securities to potential investors that did not specifically identify the mortgage in question).

The Court’s finding here is consistent with the findings of the academics and reporters who note this pattern of behavior is common in the mortgage industry. Studies have shown that mortgage holders and servicers routinely file inaccurate claims, some of which may not be lawful. See Katherine Porter, Misbehavior and Mistake in Bankruptcy Mortgage Claims, 87 Tex. L. Rev. 121, 123-24 (2008); Andrew J. Kazakes, Developments in the Law: the Home Mortgage Crisis, 43 Loy. L.A. L. Rev. 1383, 1430 (2010) (citing David Streitfeld, Bank of America to Freeze Foreclosure Cases, N.Y. Times, Oct. 2, 2010, at B1) (reporting that after revelation of Porter’s study several Banks froze foreclosures); Eric Dash, A Paperwork Fiasco, N.Y. Times, Oct. 24, 2010, at WK5 (reporting the repeal of the initial freeze and the problems banks faced in clearing up foreclosure paperwork). The Inspector General overseeing the recent financial crisis has studied this issue and concluded:

Anecdotal evidence of [loan servicers’] failures [have] been well chronicled. From the repeated loss of borrower paperwork, to blatant failure to follow program standards, to unnecessary delays that severely harm borrowers while benefiting servicers themselves, stories of servicer negligence and misconduct are legion, and . . . they too often have financial interests that don’t align with those of either borrowers or investors.

Office of the Special Inspector General for the Troubled Asset Relief Program, Quarterly Report to Congress 12 (Jan. 26, 2011), available at http://www.sigtarp.gov/ (follow link for “Quarterly Report to Congress”).

[12] After entry of a default, a court may exercise its discretion to enter a default judgment on the merits of the case. Fed. R. Civ. P. 55(b); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The Ninth Circuit in Eitel identified the following factors for a court to consider in exercising that discretion:

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

Eitel, 782 F.2d at 1471-72.

[13] The DOT states “MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the beneficiary under this Security Instrument.” DOT at p. 1.

[14] Under Ninth Circuit law this Court may decline to follow these decisions because it is not bound. State Compensation Ins. Fund v. Zamora (In re Silverman), 616 F.3d 1001, 1005 (9th Cir. 2010). While the Ninth Circuit reserved the issue of whether bankruptcy courts are bound by district court decisions within the district where the bankruptcy court sits, it recognized that such a requirement “could create the same problem of subjecting bankruptcy courts to a non-uniform body of law.” Id.

[15] The Court notes that circumventing the public recordation system is, in fact, the purpose for which the MERS system was created. Merscorp, Inc. v. Romaine, No. 179, 2006 NY Slip Op. 9500, slip op. 6 (Ct. of Appeals 2006). Creation of a private system, however, is not enforceable to the extent that it departs from California law as explained in this Memorandum Decision.

[16] Under the DOT, the Lender is secured the right to: “(i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note.” In addition, under the covenants executed between the Lender and Doble, the Lender is granted exclusive authority to accelerate repayment, “give notice to Borrower prior to acceleration,” “invoke the power of sale” through written notice to the Trustee in the event of default, and appoint successor trustees. DOT at pp. 2, 11, 12.

[17] The DOT provides, “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee of Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing or cancelling this Security Instrument.” DOT at p. 3 (emphasis added).

[18] Since the briefing on this matter was completed, Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, 1151-58 (4th Dist. 2011) was decided. Gomes held that there is no cause of action under Civil Code section 2924(a)(1) that would permit a borrower to test MERS’ authority to initiate a nonjudicial foreclosure without a specific factual basis for the challenge. Neither Gomes nor Civil Code section 2924(a)(1) however, address Civil Code section 2932.5, applicable when an assignee forecloses. Id. at 1155. Instead, Gomes relied upon the borrower’s acknowledgement of MERS’ authority in the DOT to allow MERS to foreclose as nominal beneficiary. Gomes, 192 Cal. App. 4th at 1157-58. MERS, here, had no such authority under the DOT. The Lender, not MERS, has the right to “invoke the power of sale” under the DOT.

[19] These statutes are: Civil Code sections 2932.5 (assignee of secured debt cannot nonjudicially foreclose without right to payment and a recorded assignment), 2935 (notice of an assignment of a mortgage does not change the borrowers’ obligation to make payments to the holder of the note), 2936 (transfer of a note carries with it an assignment of the debt, not vice versa), and 2937 (borrowers must be notified of transfers of servicing rights).

[20] Civil Code section 2932.5 provides:

Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.

Civ. Code § 2932.5 (Deering 2011) (emphasis added). While the exact language of Civil Code section 2932.5 mentions mortgages and not deeds of trust, the distinction between the two instruments is obsolete. N. Brand Partners v. Colony GFP Partners, L.P. (In re 240 N. Brand Partners), 200 B.R. 653, 658 (B.A.P. 9th Cir. 1996) (“The terminology creates a difference without distinction.”); Yulaeva v. Greenpoint Mortg. Funding, Inc., No. S-09-1504, 2009 U.S. Dist. LEXIS 79094, at *4 (E.D. Cal. Sept. 3, 2009) (citing 4 B.E. Witkin, Summary of California Law, ch. VIII, § 5 (10th ed. 2005)); Bank of Italy Nat. Trust & Sav. Assn. v. Bentley, 217 Cal. 644, 656 (1933) (legal title under a deed of trust, though held by the trustee to the extent necessary for execution of the trust, does not carry any “incidents of ownership of the property”); see also 1 Roger Bernhardt, California Mortgages, Deeds of Trust, and Foreclosure Litigation, § 1.35 (4th ed. 2009); Bank of Italy Nat. Trust & Sav. Assn. v. Bentley, 217 Cal. 644, 656 (1933) (legal title under a deed of trust, though held by the trustee to the extent necessary for execution of the trust, does not carry any “incidents of ownership of the property”); 4 Harry D. Miller & Marvin B. Stan, Miller & Starr California Real Estate, § 10:1 n. 9 (3d 2010) (citing Dowarad v. Fisher & Burke, Inc., 270 Cal. App. 2d 543, 553 (1st Dist. 1969)) (mortgages and deeds of trust have the same effect and economic function and are “subject to the same procedures and limitations on judicial and nonjudicial foreclosure”).

[21] Specifically, the Court is unclear as to (1) whether the PSA intended to transfer the Loan to the trust (Was Doble’s Loan listed on the mortgage schedule?); (2) whether, if the PSA did intend to transfer the Loan to the trust, whether it made the transfer and documentation of the transfer was lost or whether the Loan was never transferred at all (Was the mortgage file conveyed to the trustee? Did the trustee certify the receipt of the mortgage file? Did the trustee attempt to exercise the Repurchase Provisions of the trust?); (3) whether, if the PSA intended to transfer the Loan, the parties failed to properly transfer it or whether the Loan was properly transferred but subsequent documentation was lost; and (4) whether, if the PSA did not intend to transfer the Loan to the trust, a subsequent transfer to the trust is valid under the terms of the PSA (Did the trustee receive an REMIC opinion? Did the trustee make other arrangements prior to the subsequent transfer to protect the trust’s REMIC status? Does a violation of the trust’s REMIC status negate the transfer or simply leave the trust vulnerable to an REMIC adverse event for purposes of the Tax Code?)

[22] New York Estate Powers and Trusts Law is not relevant here. Under section 11-1.1(a), New York Estate Powers and Trusts Law explicitly excludes business trusts. The Trust here is registered with the SEC, and the PSA provides for the issuance of certificates and the election of REMIC status with the IRS. Trusts whose shares are traded on the American Stock Exchange and that qualify as “real estate investment trusts” under the Internal Revenue Code are considered business trusts. Prudent Real Estate Trust v. Johncamp Realty, Inc., 599 F.2d 1140, 1141 (C.A.N.Y. 1979). As a business trust, New York’s Estate Powers and Trusts Law does not govern Deutsche Bank’s ownership of the Loan. Rather, the ownership issue is governed by law applicable to trusts generally. See, e.g., Fogelin v. Nordblom, 521 N.E.2d 1007, 1012 (Mass 1988); In re Great Northern Iron Ore Props., 263 N.W.2d 610 (Minn. 1978).

[23] While Doble does not limit the cause of action to just this allegation, and instead states “the actions of [Defendants] as set forth hereinabove” constitute violations of the stay, these allegations are too diffuse to address without more specificity.

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TN Court Finds Sufficient, Genuine Issue Regarding Sold Loans, Unrecorded Assignment LEE v. EQUIFIRST

TN Court Finds Sufficient, Genuine Issue Regarding Sold Loans, Unrecorded Assignment LEE v. EQUIFIRST


TERI LEE, Plaintiff,
v.
EQUIFIRST CORP., HOMEQ SERVICING CORP., QUANTUM SERVICING CORP., SUTTON FUNDING, LLC, ROOSEVELT MORTGAGE ACQUISITION CO., and WELLS FARGO, N.A., Defendants.

Case No. 3:10-cv-809.

United States District Court, M.D. Tennessee, Nashville Division.

April 25, 2011.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

Pending before the court is the Motion for Summary Judgment filed by defendant EquiFirst Corp. (Docket No. 64), to which the plaintiff has filed a response (Docket No. 68), and in support of which the defendant has filed a reply (Docket No. 74). For the reasons discussed below, the defendant’s motion will be denied.

BACKGROUND

Plaintiff Teri Lee took out two mortgage loans, the larger of which was for $152,000 (the “Primary Loan”), to purchase her residence in Nashville, Tennessee.[1] Eventually, she missed payments on the Primary Loan. This action arises from the resulting foreclosure.

At the March 2, 2007 closing of the plaintiff’s home purchase, defendant EquiFirst Corp. (“EquiFirst”) held the promissory notes and the servicing rights to both loans. The Amended Complaint alleges that, on May 1, 2007, EquiFirst assigned the servicing rights of the loans to defendant HomEq Servicing Corp. (“HomEq”). (Docket No. 50 ¶ 12.)

The plaintiff’s deed of trust required her to carry an insurance policy on her property, and she allegedly maintained sufficient coverage for the duration of the loans. (Id. ¶ 25.) The plaintiff alleges that on two occasions — May 13, 2008 and October 14, 2008 — HomEq charged her for additional, unnecessary insurance policies, because it failed to discover that she already had insurance. (Id. ¶¶ 27-28.) These charges totaled approximately $4,700, and this expense allegedly caused the plaintiff to fall behind on her loan payments. (Id. ¶¶ 27-28, 34.)

On February 25, 2009, the plaintiff allegedly received a notice of acceleration of the Primary Loan from a law firm, identifying the current creditor as defendant Sutton Funding, LLC (“Sutton”). (Id. ¶ 35.) The next month, Lee received a notice of foreclosure from the same law firm. (Id.)

At that point, the plaintiff called HomEq, which allegedly offered her a forbearance agreement. Under the proposed plan, the plaintiff would immediately pay $3,500 and would then pay increased monthly payments until November 2009, at which point her account would be current. (Id. ¶¶ 36-37.) The plaintiff alleges that she accepted these terms and signed an agreement (the “Forbearance Agreement”) with HomEq on March 27, 2009. (Id.) The agreement provided that it would be binding upon the parties’ “successors and assigns.” (Id. ¶ 39.)

On May 15, 2009, after accepting the plaintiff’s up-front payment and first increased monthly payment, HomEq allegedly transferred the servicing rights for the Primary Loan to defendant Quantum Servicing Corp. (“Quantum”). (Id.Id. ¶ 40.) The letter informed her that she was more than $6,900 in arrears, and it did not reference the Forbearance Agreement. (Id. ¶ 40.) ¶ 38.) Shortly thereafter, the plaintiff received a “Validation of Debt” letter from Quantum, listing defendant Roosevelt Mortgage Acquisition Co. (“Roosevelt”) as the current creditor. (

Quantum allegedly never recognized the Forbearance Agreement. The plaintiff claims that the amounts she paid HomEq under the Forbearance Agreement left her unable to pay the balance that Quantum asserted was due. (Id. ¶¶ 42-43.) Ultimately, on March 24, 2010, after several months of communications with Quantum and its law firm, the plaintiff’s home was sold at a foreclosure sale.

The plaintiff asserts three causes of action: (1) negligence by HomEq for charging her for unnecessary insurance; (2) negligence by HomEq and Quantum for failing to ensure that the Forbearance Agreement was honored when the servicing of her loan was transferred between those companies; and (3) violation of the Real Estate Settlement and Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., by Quantum, for failing to respond to several “qualified written requests” in the months before the foreclosure.[2] (Id. ¶¶ 24-76.) The plaintiff alleges that EquiFirst is vicariously liable, as the creditor of the Primary Loan and as the principal of HomEq and Quantum, for the first two causes of action. (Id. ¶¶ 30, 46, 52.)

The deed of trust for the plaintiff’s property was recorded by Mortgage Electronic Registering Service (“MERS”), of which all of the defendants are members. This allegedly made it difficult for the plaintiff to determine which defendant was the creditor for the Primary Loan at any given time. (Docket No. 50 ¶ 20.) The plaintiff alleges that “[m]embers of MERS do not publicly list this information in the MERS system, which they use to avoid listing the chain of title in the county registry.” (Id. ¶ 19.)

Defendant EquiFirst previously filed a Motion to Dismiss, arguing, in relevant part, that it sold both of the plaintiff’s mortgage loans before any of the servicers’ alleged negligence had occurred. In support of that motion, the defendant filed the declaration of Karen L. Stacy, an EquiFirst Vice President. (Docket No. 18.) In response, the plaintiff requested more time for discovery.

In ruling on the Motion to Dismiss, the court declined to consider the defendant’s extrinsic evidence. (Docket No. 28 at 7 n.2.) The court held that EquiFirst, as mortgagee, could be held vicariously liable for actions taken by HomEq, as servicer. (Id. at 8.) It also found that the plaintiff’s initial Complaint contained sufficient allegations that EquiFirst was the creditor when HomEq charged the plaintiff for insurance. (Id. at 6-7.) There were no allegations, however, suggesting that EquiFirst was the creditor after February 2009; thus, the court dismissed all claims against EquiFirst, except for the negligence claim related to insurance. (Id. at 7.)

The court stated that, “if the evidence ultimately shows that EquiFirst did sell the loans in March 2007, then [EquiFirst] will not be held liable for actions taken by the servicer in 2008.” (Id. at 8.) It further noted that, “[i]f discovery ultimately shows that EquiFirst owned the loan at a later date, the plaintiff may move to amend her Complaint as necessary to re-assert the relevant claims against EquiFirst.” (Id. at 7 n.3.) The plaintiff did subsequently file an Amended Complaint, which, as mentioned above, alleges that EquiFirst is vicariously liable for HomEq’s negligence regarding the insurance and for HomeEq’s and Quantum’s negligence in handling the Forbearance Agreement.

EquiFirst has now filed a Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56. Relying exclusively on the previously filed declaration of Karen L. Stacy, the defendant once again argues that it was not the creditor on the Primary Loan when the servicers’ alleged negligence occurred.

ANALYSIS

I. Summary Judgment Standard

Rule 56 requires the court to grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff’s claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the [plaintiff].” Moldowan, 578 F.3d at 374.

At this stage, “`the judge’s function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “the mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient,” and the plaintiff’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 249, 252. An issue of fact is “genuine” only if a reasonable jury could find for the plaintiff. Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

II. EquiFirst’s Sale of the Loans

The instant dispute boils down to the factual issue of when, exactly, EquiFirst sold the plaintiff’s loans. The defendant argues that Karen L. Stacy’s declaration shows that it sold the loans on March 30, 2007, so it was not liable for HomEq’s or Quantum’s subsequent negligence. The plaintiff argues that her own evidence shows that EquiFirst still owned the loans on May 14, 2007 and February 20, 2009.

Stacy’s declaration states that, “[o]n March 30, 2007, EquiFirst sold both of the [plaintiff’s mortgage] Loans to Sutton Funding, LLC,” and, “[o]n May 1, 2007, EquiFirst transferred the servicing of both of the Loans to HomEq Servicing Corporation.” (Docket No. 18 ¶¶ 3, 5.) The declaration further states:

EquiFirst was not, at any point in time, the creditor on the Loans during the periods of time in which the Loans were serviced by HomEq Servicing Corporation or by Quantum Servicing Corporation. . . . After EquiFirst transferred the servicing of both Loans to HomEq Servicing Corporation on May 1, 2007, EquiFirst did not have, and EquiFirst continues to not have any ownership interest in the two Loans or the two corresponding liens on the subject property.

(Id. ¶¶ 6-7.) But, “[b]ecause MERS was the beneficiary on the relevant security instruments, no assignment was prepared or recorded in the Register’s Office of Davidson County, Tennessee.” (Id. ¶ 4.)


In opposing the assertions contained in this declaration, the plaintiff relies on several documents. First, the plaintiff has submitted two “Validation of Debt” letters that she received from HomEq, one for each loan, both dated May 14, 2007. These letters, which are dated six weeks after EquiFirst’s claimed sale date, state that HomEq “is responsible for providing monthly remittance processing . . . on behalf of the current owner of the loan EquiFirst.” (Docket No. 68, Exs. 3-4 (emphasis added).) The plaintiff has also submitted five largely identical notice-of-default letters from HomEq, dated February 15, 2008, August 15, 2008, October 16, 2008, January 19, 2009, and February 19, 2009, each of which states that “Barclays Bank PLC” is the Primary Loan’s “current creditor/owner.” (Id., Exs. 6-7.) The plaintiff points out that EquiFirst, which was formally dissolved as of June 2010, was owned, via a string of wholly owned subsidiaries, by Barclays Bank PLC (“Barclays”).[3] (See Docket No. 4 at 1 (EquiFirst’s corporate disclosure statement).) Finally, the plaintiff has submitted a document included in HomEq’s initial disclosures titled “Communication History,” which appears to be an internal log of events and communications related to the plaintiff’s loan file. (Docket No. 68, Ex. 5.) It contains an entry, dated February 20, 2009, labeled “comment log.” In the “description” column, the entry states: “INVESTOR 394 EQUIFIRST BBPLC FORECLOSURE IN THE NAME OF: BARCLAYS CAPITAL.” (Id.)

The court finds that, at least at this stage in the litigation, the plaintiff’s documents are sufficient to create a genuine issue for trial regarding when EquiFirst sold the loans. Significantly, the defendant’s sole piece of evidence is the self-serving declaration of its own employee, which contains the bare assertion that EquiFirst sold the loan to Sutton in March 2007. The defendant has not, for example, attached any supporting documentary evidence of that sale or submitted any relevant testimony from Sutton or HomEq.

In opposition, the plaintiff has produced a letter from HomEq stating that EquiFirst was still the creditor in May 2007.[4] Furthermore, the “Communication History” document states that, as of February 2009, the “investor” for the plaintiff’s loan was “EQUIFIRST BBPLC.” Presumably, “BBPLC” refers to Barclays Bank PLC. The document is ambiguous, but, construed in the light most favorable to the plaintiff (particularly in the absence of countervailing evidence regarding the proper interpretation of the document), it indicates that EquiFirst had some interest in the loan as of February 2009. It also suggests that HomEq might have equated EquiFirst with Barclays Bank PLC in its records. In that event, the five notice-of-default letters naming Barclays as the Primary Loan’s creditor might support the conclusion that EquiFirst owned the loan throughout 2008 and early 2009.

In sum, after reviewing the parties’ evidence, a reasonable juror could conclude that EquiFirst owned the loans during the relevant time periods. On this record, summary judgment is inappropriate.[5] Moreover, although the plaintiff does not argue that she needs time for additional discovery, the court believes that the defendant’s Motion for Summary Judgment is premature. The parties have not had a full and fair opportunity to engage in discovery. In fact, a discovery deadline has not even been set in this case, for various reasons apparent in the case record. Given the apparent lack of transparency regarding which defendant owned the plaintiff’s loans at any given time, the court believes that it would be inappropriate to resolve the instant factual issue before the close of discovery.

Finally, the defendant argues that the court must disregard the plaintiff’s documents because she has not properly authenticated them. (Docket No. 74 at 6-7.) It is true that, at summary judgment, parties must submit evidence that would be admissible at trial. See Fed. R. Civ. P. 56(c), (e). Federal Rule of Evidence 901 requires that, to be admissible, documents must be accompanied “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a); see also id. 901(b)(1) (explaining that a matter can be authenticated by “[t]estimony [from a witness with knowledge] that a matter is what it is claimed to be”). Consequently, the Sixth Circuit has repeatedly stated that documents submitted in support of a summary judgment brief must be properly authenticated. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (noting the Sixth Circuit’s “repeated emphasis that unauthenticated documents do not meet the requirements of Rule 56(e)”); Baugham v. Battered Women, Inc., 211 Fed. Appx. 432, 441 n.5 (6th Cir. 2006) (“[T]he documents Plaintiffs submitted in support of their opposition motion were neither signed nor authenticated and, therefore, are inadmissible evidence for purposes of summary judgment.”); Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 532 (6th Cir. 2002) (“[The] memo [submitted by the defendant] was not accompanied by an affidavit or document that attested to its validity or authenticity. . . . `[D]ocuments submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded.'”).

But Federal Rule of Civil Procedure 56, as amended effective December 1, 2010, provides that, “[i]f a party fails to properly support an assertion of fact,” the court may “give an opportunity to properly support or address the fact.” Fed. R. Civ. P. 56(e)(1). The Advisory Committee’s notes to the 2010 amendments state that, “[i]n many circumstances[,] this opportunity will be the court’s preferred first step.” Here, nothing suggests that the documents submitted by the plaintiff are actually inauthentic, and the defendant does not dispute that the plaintiff canSee Docket No. 68, Ex. 5.) Accordingly, the court will give the plaintiff an opportunity to submit declarations authenticating the documents.[6] authenticate the documents. Indeed, the Bates label on the “Communication History” document clearly indicates that it was produced by defendant HomEq. (

CONCLUSION

For all of the reasons discussed above, the defendant’s Motion for Summary Judgment will be denied, although EquiFirst is free to file a renewed motion after the close of discovery. The plaintiff will be ordered to file declarations that properly authenticate the documents that she submitted in support of her summary judgment opposition.

An appropriate order will enter.

[1] Unless otherwise noted, the facts are drawn from the parties’ statements of undisputed facts (Docket No. 64, Ex. 1; Docket No. 68, Ex. 1). The court draws all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Brown v. United States, 583 F.3d 916, 919 (6th Cir. 2009).

[2] The Amended Complaint does not explicitly set out a claim for wrongful foreclosure, although it does allege that the defendants’ negligence “helped facilitate the eventual wrongful foreclosure of her home.” (Docket No. 50 ¶ 34; see also id. ¶ 54.)

[3] The plaintiff’s Amended Complaint added Barclays as a defendant. (See Docket No. 50 ¶ 7.) Soon after, however, the plaintiff voluntarily dismissed Barclays without prejudice, because she was unable to serve process on it. (Docket No. 59.)

[4] EquiFirst argues that this letter, which was not created by EquiFirst, was mistaken. (Docket No. 74 at 9.) Although that is certainly possible, at summary judgment, the court must view the evidence in the light most favorable to the plaintiff; thus, the court cannot simply assume that the letter contained mistakes.

[5] The defendant argues that the plaintiff does not oppose entry of summary judgment in favor of EquiFirst on her RESPA and wrongful foreclosure claims. (Docket No. 74 at 2.) But the Amended Complaint does not seek to hold EquiFirst liable for any RESPA violations, and it does not contain a separate wrongful foreclosure claim. (See Docket No. 50 ¶¶ 55-76.) The defendant further argues that, because the plaintiff’s brief does not sufficiently address the issue, she has waived any argument that EquiFirst is vicariously liable for the servicers’ negligence regarding the Forbearance Agreement. (Docket No. 74 at 8.) The court disagrees. First, the defendant’s initial motion papers did not mention the plaintiff’s Forbearance Agreement claim, so the plaintiff could not possibly have waived any arguments by failing to discuss that claim. Second, the plaintiff argues that the “Communication History” document shows that EquiFirst owned the loan in February 2009, the month before she signed the Forbearance Agreement. The clear implication is that EquiFirst owned the loans during the time period relevant to the Forbearance Agreement claim.

[6] It should be enough (1) for the plaintiff to declare that the letters are true copies of letters that she received and (2) for her attorney to declare that the Bates-labeled documents are true copies of documents that HomEq produced in its initial disclosures.

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Oregon BK Court “Un-Recorded Assignments”,”Non-Judicial Requires All Beneficial Interest Transfers Recorded” McCOY v. BNC Mortgage

Oregon BK Court “Un-Recorded Assignments”,”Non-Judicial Requires All Beneficial Interest Transfers Recorded” McCOY v. BNC Mortgage


In re: DONALD E. McCOY, III, Debtor.
DONALD E. McCOY, III, Plaintiff,
v.
BNC MORTGAGE, INC; MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS, INC; US BANK, NA; FINANCE AMERICA, LLC; LEHMAN BROTHERS HOLDINGS, INC; and IMPACT ONE MORTGAGE SVCS, Defendants.

Bankruptcy Case No. 10-63814-fra13, Adversary Proceeding No. 10-6224-fra.

United States Bankruptcy Court, D. Oregon.

February 7, 2011.

Memorandum Opinion

FRANK R. ALLEY, III, Chief Bankruptcy Judge

Plaintiff filed a complaint with claims for wrongful foreclosure and to quiet title in real property. Defendants Mortgage Electronic Registrations Systems, Inc. (MERS) and U.S. Bank N.A. filed a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6).[1] For the reasons that follow, Defendants’ motion will be granted in part and denied in part.

BACKGROUND

Plaintiff received a loan in 2005 from Defendant BNC Mortgage in the amount of $320,000, secured by a deed of trust against real property in Central Point, Oregon, in Jackson County, which the Plaintiff and his wife were purchasing as their residence. BNC Mortgage was listed on the trust deed as “Lender” and Defendant MERS was listed as “Grantee” of the security instrument. Page 2 of the deed of trust document defines MERS as a “separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns.” Page 3 of the document describes the “Beneficiary” of the deed of trust as “MERS (solely as nominee for Lender and Lender’s successors and assigns) and the successors and assigns of MERS.” The “Trustee” is designated as First American Title Insurance Co. The adjustable rate promissory note disclosed BNC Mortgage as the “Lender,” and did not name any other party other than the borrowers.

The Complaint alleges that BNC Mortgage received funds from Defendant Lehman Brothers Holdings, which had obtained the funds from investors, to make the loan to the Plaintiff. After the loan was funded, the Complaint further alleges that the beneficial interest in the loan was sold to Lehman Brothers Holdings which in turn sold it to its subsidiary Structured Asset Securities Corp, which in turn sold the loan to the Structured Asset Securities Corporation Loan Trust Mortgage Pass-Through Certificates, Series 20051-0 (Defendant US Bank NA Trustee), which then transferred the loan and others it had acquired into a loan pool. All these transfers, the Complaint alleges, were made without recording any documents in the official records of Jackson County, Oregon.

On September 11, 2007, MERS, through Vice President Kathy Taggart, executed and filed in the Jackson County records: 1) An Appointment of Successor Trustee, naming Northwest Trustee Services, Inc. as successor trustee, and 2) An Assignment of Trust Deed, assigning the beneficial interest in the Trust Deed from MERS to US Bank NA. Also on that same day, Northwest Trustee Services, Inc., Trustee, executed and filed a Notice of Default and Election to Sell the Plaintiff’s Central Point property. It was also signed by Kathy Taggart.

On February 6, 2008, a Rescission of Notice of Default was executed and filed by Northwest Trustee Services, Inc. and a second Notice of Election to Sell was executed and filed. Thereafter, Northwest Trustee Services, Inc. executed and filed documents required under Oregon’s Trust Deed Statutes found in ORS Chapter 86, including an Affidavit of Mailing, a Trustee’s Notice of Sale, Proof of Service, and an Affidavit of Publication.

Plaintiff filed a chapter 7 bankruptcy petition on March 5, 2010, thereby activating the automatic stay under 11 U.S.C. § 362(a),[2] preventing any action by Defendants to foreclose their interest in the trust deed. Defendant US Bank NA obtained a default order granting relief from the automatic stay on May 6, 2010 to foreclose its interest in the trust deed. On June 28, 2010, Plaintiff was granted a discharge of debts. On June 24, 2010, Plaintiff filed a chapter 13 bankruptcy petition and maintains the chapter 13 bankruptcy even though informed by the court that he is ineligible for a discharge of debts due to the discharge received in the previously filed chapter 7 case. See § 1328(f)(1). The automatic stay was again in place. US Bank NA filed an objection to confirmation of Plaintiff’s chapter 13 Plan and again filed a motion for relief from the automatic stay which was granted at a hearing on August 26, 2010. The lawsuit originally filed by Plaintiff for wrongful foreclosure and to quiet title in Jackson County Circuit Court was removed to the U.S. District Court on September 17, 2010, and thereafter transferred to Bankruptcy Court to be litigated in this forum.

MOTION TO DISMISS

Review of a complaint under Fed.R.Civ.P. 12(b)(6) is based on the contents of the complaint, the allegations of which are accepted as true and construed in the light most favorable to the plaintiff. North Slope Borough v. Rogstad (In Re Rogstad), 126 F.3d 1224, 1228 (9th Cir. 1997)(citations omitted). “[O]nce a claim has been adequately stated, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007)(internal citation omitted). This standard requires “enough fact to raise a reasonable expectation that discovery will reveal evidence [supporting the cause of action].” Id. at 556. However, the court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Naert v. Daff, (In Re Washington Trust Deed Service Corp.), 224 B.R. 109, 112 (9th Cir. BAP 1998). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

In considering the motion, the court may not consider any material “beyond the pleadings.” Hal Roach Studios. Inc. v. Richard Feiner and Co. Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, material which is properly submitted as part of the complaint may be considered. Id. Exhibits submitted with the complaint may also be considered. Durning v. The First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Further, a document whose contents are alleged in the complaint, or which is crucial to the complaint, and whose authenticity no party questions, but which is not physically attached to the pleading, may be considered. Branch v. Tunnell, 14 F.3d 449, 453-454 (9th Cir. 1994),Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998)(not specifically alleged and unattached, but integral to plaintiffs claims). Finally, matters that may be judicially noticed may be considered, Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds, Astoria Federal Savings and Loan Ass’n v. Solimino, 501 U.S. 104 (1991), including court records in related or underlying cases. In re American Continental Corp./ Lincoln Sav. & Loan Securities Litigation, 102 F.3d 1524, 1537 (9th Cir. l996), rev’d on other grounds sub nom., Lexecon Inc. v. Milberg Weiss Bershad Hynes and Lerach, 523 U.S. 26 (1998). cert. den. 119 S. Ct. 510(l998)(contents alleged in, but not attached to, complaint);

DISCUSSION

A. Claim to Quiet Title

The Complaint alleges that the only entities who were ever owed money were the investors of the Structured Asset Investment Loan Trust, Series 2005-10 and that those investors have all been paid in full. They were paid, according to the Complaint, by one or more of the following: income from the trust, credit default swaps, TARP money, or federal bailout funds. Accordingly, since no party is owed any money, title to the real property should rest exclusively in the Plaintiff, free of any encumbrances.

The Complaint fails to assert “enough facts to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555. It merely asserts, without any actual assertion of fact, that the debt has been paid from one or more sources. The allegation that nobody is owed any money based on Plaintiff’s promissory note and deed of trust is a conclusory legal allegation which the court is not required to accept. Accordingly, Defendants’ motion to dismiss the claim to quiet title in Plaintiff will be granted. B. Wrongful Foreclosure

ORS 86.735 Foreclosure by advertisement and sale. The trustee may foreclose a trust deed by advertisement and sale in the manner provided in ORS 86.740 to 86.755 if:

(1) The trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in the mortgage records in the counties in which the property described in the deed is situated; . . .

The Complaint alleges that there were one or more assignments of the Lender’s interest that were not recorded. If the Lender is the beneficiary, it follows that foreclosure by advertisement and sale is not authorized under ORS 86.735. On the other hand, non-judicial foreclosure may be authorized if (a) MERS is the beneficiary, and (b) there have been no unrecorded assignments of MERS’s interest.

MERS claims to be the beneficiary because the Trust Deed declares it the beneficiary. The term “Beneficiary,” however, is defined at ORS 86.705(1) not merely as the person named as such, but as “the person named or otherwise designated in the trust deed as the person for whose benefit a trust deed is given, or the person’s successor in interest. . . .” [italics added]. In the deed of trust described in and attached to the Complaint, that person is not MERS, but BNC Mortgage, the Lender. BNC Mortgage is the entity that loaned the money to Plaintiff and to whom the Plaintiff was obligated under the promissory note. Moreover, the deed of trust provides that MERS is acting solely as the nominee of the Lender.

A deed of trust may authorize delegation of the beneficiary’s powers to a separate nominee, as appears to have been the case here. However, the powers accorded to MERS by the Lender — with the borrowers’ consent — cannot exceed the powers of the beneficiary. The beneficiary’s right to require a non-judicial sale is limited by ORS 86.735. A non-judicial sale may take place only if any assignment by BNC Mortgage has been recorded. As the Complaint sets out a plausible claim that one or more assignments from BNC Mortgage were unrecorded, the Defendants’ motion to dismiss the claim for wrongful foreclosure will be denied.[3]

It should be noted that ORS 86.735 applies only to non-judicial foreclosures and does not act to limit judicial foreclosures. Judicial foreclosure of trust deeds is authorized by ORS 86.710; when foreclosed judicially, trust deeds are treated as mortgages. Read together, the two provisions make it clear that Oregon law permits foreclosure without the benefit of a judicial proceeding only when the interest of the beneficiary is clearly documented in a public record. When the public record is lacking, the foreclosing beneficiary must prove its interest in a judicial proceeding.

CONCLUSION

For the reasons given, the motion to dismiss filed by Defendants MERS and US Bank NA will be denied as to Claim 1 for wrongful foreclosure and granted as to Claim 2 to quiet title, with leave to replead. An order will be entered by the court consistent with this Memorandum Opinion.

[1] Made applicable by Fed.R.Bankr.P. 7012.

[2] Unless otherwise specified, all statutory references herein refer to the Bankruptcy Code, 11 U.S.C. § 101 et seq.

[3] The Complaint also alleges that any actions taken by MERS in Oregon are a legal nullity because MERS is not authorized to do business in the state. However, as Defendant points out, even if MERS’s activities in the state were not excepted at ORS 60.701(2) from the requirement that an entity be authorized by the Secretary of State to do business in the Oregon (although it appears that they are in this case), ORS 60.704(5) provides that “the failure of a foreign corporation to obtain authority to transact business in this state does not impair the validity of its corporate acts or prevent it from defending any proceeding in this state.”

[ipaper docId=48677488 access_key=key-1fd496ql0k92xes4bcxc height=600 width=600 /]

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OHIO WELLS FARGO QUIET TITLE FAIL | GROVE COURT CONDOMINIUM UNIT OWNERS’ASSN. v. Hartman

OHIO WELLS FARGO QUIET TITLE FAIL | GROVE COURT CONDOMINIUM UNIT OWNERS’ASSN. v. Hartman


2011 Ohio 218
Grove Court Condominium Unit Owners’ Association, Plaintiff-Appellee,
v.
Dorothy M. Hartman, et al., Defendants-Appellees,
[Appeal by Appellant Wells Fargo Bank, N.A.]

No. 94910.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: January 20, 2011.

Deanna C. Stoutenborough, Romi T. Fox, M. Elizabeth Hils, Lerner, Sampson & Rothfuss, 120 E. Fourth Street, 8th Floor, Cincinnati, OH 45202, For Wells Fargo Bank, N.A. Scott A. King, Terry W. Posey, Jr., Thompson Hine LLP, P.O. Box 8801, 2000 Courthouse Plaza, N.E., Dayton, OH 45401-8801, Dale S. Smith, Thompson Hine LLP, 3900 Key Center, 127 Public Square, Cleveland, OH 44114, Attorneys for Appellant.

James C. Wrentmore, Singerman, Mills, Desberg & Kauntz Co., LPA, 3401 Enterprise Parkway, Suite 200, Beachwood, OH 44122, For Grove Court Condominium Unit Owners’ Association, Kevin M. Fields, Darcy Mehling Good, Robert E. Kmiecik, Kimberly L. Strauss, Kaman & Cusimano, LLC, 50 Public Square, Suite 2000, Cleveland, OH 44113, Elizabeth A. Meers, 1370 Ontario Street, Suite 2000, Cleveland, OH 44113-1726, For Dorothy M. Hartman, et al., Jason P. Hager, Douglass & Associates Co., LPA, 4725 Grayton Road, Cleveland, OH 44135, For Plymouth Park Tax Services, Alexander E. Goetsch, Megan R. Miller, Cavitch, Familo & Durkin Co., LPA, 1300 East Ninth Street, 20th Floor, Cleveland, OH 44114, For Dino Selvaggio, Third Federal Savings & Loan Association, Legal Department, 7007 Broadway Avenue, Cleveland, OH 44105, For Third Federal Savings & Loan Association, Attorneys for Appellees.

Before: Gallagher, P.J., Kilbane, A.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, P.J.

{¶ 1} Appellant Wells Fargo Bank, N.A. (“Wells Fargo”) appeals the judgment of the Cuyahoga County Court of Common Pleas that denied its emergency motion to intervene. For the reasons stated herein, we affirm.

{¶ 2} This is a foreclosure action that was instituted by plaintiff Grove Court Condominium Owners’ Association, Inc. (“Grove Court”), on December 28, 2006. At the time the action was filed, defendants Dorothy and Richard Hartman (“the Hartmans”) owned two condominiums, units 307 and 405, in the Grove Court condominium development, located at 1900 Grove Court in Cleveland. They acquired ownership to the units in 1986 through separate and distinct instruments. Unit 405 is the subject property in this matter.

{¶ 3} After purchasing the units, the Hartmans added an internal stairway to connect the units in accordance with Grove Court’s declaration and Ohio law. They did not combine the units into a single unit for legal and tax purposes. Rather, the units retained their separate addresses and parcel numbers.

{¶ 4} In 2005, the Hartmans obtained refinancing from Wells Fargo. The legal description on the mortgage and title commitment only included unit 307. There was no recorded interest on unit 405.

{¶ 5} On December 28, 2006, Grove Court filed this foreclosure action against the Hartmans. Grove Court sought to foreclose on a certificate of lien recorded against unit 405, for unpaid maintenance fees and condominium assessments. The parties named in the action were consistent with the preliminary judicial report, which did not show any mortgages of record on unit 405.

{¶ 6} On August 7, 2007, Grove Court filed an unopposed motion for summary judgment against the Hartmans. On October 22, 2007, the trial court adopted a magistrate’s decision, granted Grove Court judgment against the Hartmans, and issued a decree of foreclosure.

{¶ 7} In the meantime, Wells Fargo had initiated foreclosure proceedings on unit 307 on June 8, 2007. After discovering this action, Wells Fargo filed an emergency motion to intervene, motion for relief from judgment and to vacate sale, and motion to quiet title. The motion was filed two months after judgment had been granted to Grove Court, four days prior to the scheduled foreclosure sale, and almost a year after the case had commenced. Wells Fargo did not attach any pleading to the motion to intervene.

{¶ 8} In its motion, Wells Fargo asserted that it had issued a refinance loan to the Hartmans in October 2005, that the parties intended the loan to be secured by both units 307 and 405, and that as a result of a scrivener’s error, only unit 307 was identified in the legal description on the mortgage. Wells Fargo sought an order recognizing that it had a superior lien interest in unit 405.

{¶ 9} Before the motion was ruled upon, unit 405 was sold at a sheriff’s sale to Dino Selvaggio for $76,667. Thereafter, a court magistrate issued an order denying Wells Fargo’s motion to intervene. The trial court confirmed the sale on June 6, 2008.

{¶ 10} Various distributions were made from the proceeds of the sale, including $10,256.49 to Grove Court in satisfaction of its judgment. A portion of the funds remain pending with the clerk of court.

{¶ 11} Wells Fargo filed objections to the magistrate’s decision. On February 26, 2010, the trial court overruled the objections, adopted the magistrate’s decision, and denied Wells Fargo’s motion to intervene. The trial court, through the adopted decision, found that Wells Fargo’s motion failed to attach a pleading detailing its claim as required by Civ.R. 24(C). The court further found the motion raised a number of new liability issues that would operate to severely prejudice the ability of Grove Court to satisfy its judgment, that Wells Fargo did not maintain an interest in the subject property, and that the motion was untimely.

{¶ 12} Wells Fargo has appealed the trial court’s decision. In its sole assignment of error, Wells Fargo claims “[t]he trial court erred in denying the motion to intervene.”

{¶ 13} Wells Fargo asserts that it had a right to intervene in this action pursuant to Civ.R. 24(A)(2), which provides for intervention of right in civil cases. The rule provides as follows: “Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Civ.R. 24(A)(2).[1]

{¶ 14} The rule is to be liberally construed in favor of intervention. State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 534, 1998-Ohio-190, 696 N.E.2d 1079. Nevertheless, the putative intervenor still bears the burden of establishing the right to intervene.

{¶ 15} In this case, Wells Fargo claims that it has an interest in the subject property. Although its alleged interest was not recorded and does not appear of record, Wells Fargo asserts that this was the result of a scrivener’s error and that it has a legal or equitable lien on the property that is superior to other interests.

{¶ 16} In interpreting analogous Fed.R.Civ.P. 24(a)(2), federal courts have stated that intervention of right requires the interest to be “direct, substantial, and legally protectable.” U.S. v. Vasi (Mar. 6, 1991), N.D. Ohio Nos. 5:90 CV 1167 and 5:90 CV 1168; Grubbs v. Norris (C.A. 6, 1989), 870 F.2d 343, 346. Ohio courts have found the same requirements implicit in Civ.R. 24(A)(2). Duryee v. PIE Mut. Ins. Co. (Dec. 1, 1998), Franklin App. No. 98AP-535; Fairview Gen. Hosp. v. Fletcher (1990), 69 Ohio App.3d 827, 591 N.E.2d 1312. Further, the Ohio Supreme Court specifically has stated that the claimed interest under Civ.R. 24(A)(2) must be one that is “legally protectable.” State ex rel. Dispatch Printing Co. v. Columbus, 90 Ohio St.3d 39, 2000-Ohio-8, 734 N.E.2d 797; In re Schmidt (1986), 25 Ohio St.3d 331, 336, 496 N.E.2d 952.

{¶ 17} In this case, the trial court determined that the documentation provided by Wells Fargo only demonstrates that its mortgage encumbers a wholly different parcel than the parcel at issue in this matter. The court found that without the exercise of the court’s equitable power of reformation, Wells Fargo has no interest in the subject property.

{¶ 18} We recognize that Wells Fargo does not have a present interest in the property and that its claimed interest is contingent on a determination of the merits of the issues it seeks to raise in the action.[2] However, even assuming that Wells Fargo’s claimed interest is a direct, substantial and legally protectable interest, we still find that the trial court did not error in denying the motion to intervene on the grounds that a required pleading was not attached to the motion and the motion was untimely.

{¶ 19} Civ.R. 24(C) mandates that the motion to intervene “shall be accompanied by a pleading, as defined in Civ.R. 7(A) setting forth the claim or defense for which intervention is sought.” Civ.R. 7(A) defines a pleading as a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint, or a third-party answer. No such pleading accompanied the motion to intervene filed by Wells Fargo.

{¶ 20} The Ohio Supreme Court has repeatedly held that a motion to intervene is properly denied when the “motion is not accompanied by a pleading setting forth the claim or defense for which intervention is sought” as mandated by Civ.R. 24(C). State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 21; State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 144, 1995-Ohio-269, 656 N.E.2d 1277.[3] Thus, we do not find that the trial court erred in denying the motion on this ground.

{¶ 21} “The timeliness of a motion to intervene pursuant to Civ.R. 24(A) is a matter within the sound discretion of the trial judge.” Univ. Hosps. of Cleveland, Inc. v. Lynch, 96 Ohio St.3d 118, 2002-Ohio-3748, 772 N.E.2d 105, ¶ 47. When determining the timeliness of the motion, the court should consider the following factors: “(1) the point to which the suit has progressed, (2) the purpose for which intervention is sought, (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case, (4) the prejudice to the original parties due to the proposed intervenor’s failure after he or she knew or reasonably should have known of his or her interest in the case to apply promptly for intervention, and (5) the existence of unusual circumstances militating against or in favor of intervention.” Id., quoting Triax Co. v. TRW, Inc. (C.A.6, 1984), 724 F.2d 1224, 1228.

{¶ 22} “Intervention after final judgment has been entered is unusual and ordinarily will not be granted.” Meagher, 82 Ohio St.3d at 504, 1998-Ohio-192, 696 N.E.2d 1058. However, intervention after final judgment may be allowed when the intervenor has no other alternative remedy and intervention is the only way to protect the intervenor’s rights. See Owens v. Wright (Feb. 18, 1993), Cuyahoga App. No. 64031; Likover v. Cleveland (1978), 60 Ohio App.2d 154, 159, 396 N.E.2d 491. Ultimately, the determination of whether a Civ.R. 24 motion to intervene is timely depends on the facts and circumstances of the case. Meagher, 82 Ohio St.3d at 503, 1998-Ohio-192, 696 N.E.2d 1058.

{¶ 23} In this case, Wells Fargo did not observe the alleged scrivener’s error at the time it received the title commitment or when the mortgage was recorded. It did not seek to intervene in this action until nearly a year after the case was filed, two months after final judgment was granted to Grove Court, and only four days before a scheduled sheriff’s sale of the subject property. Also, the motion was filed six months after Wells Fargo had filed its own foreclosure action against only unit 307. Wells Fargo sought to vacate the judgment, to interject newly contested issues into the matter, and to claim a potential superior interest in the subject property that would require the court to exercise its equitable powers to reform Wells Fargo’s mortgage. As a judgment had already been imposed, with priority interests established, allowing intervention would operate to prejudice the original parties. Further, the subject property was sold to Mr. Selvaggio.

{¶ 24} Considering the facts and circumstances of this case, we find the trial court did not abuse its discretion in denying Wells Fargo’s motion to intervene after judgment.[4] Accordingly, Wells Fargo’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for execution of sentence.

Mary Eileen Kilbane, A.J., and Frank D. Celebrezze, Jr., J., concur.

[1] The Ohio Supreme Court has recognized that “Ohio courts have applied an abuse of discretion standard for all of the Civ.R. 24(A)(2) intervention of right requirements.” State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503 fn. 1, 1998-Ohio-192, 696 N.E.2d 1058. However, we observe that there is in fact some split in authority as to whether the review for intervention of right is de novo.

[2] We note that “equity will allow reformation of a written instrument for the erroneous omission of a material provision so that the instrument will evince the actual intention of the parties.” Berardi v. Ohio Turnpike Comm. (1965), 1 Ohio App.2d 365, 368, 205 N.E.2d 23.

[3] Insofar as this court found that the failure to attach a pleading was not fatal to intervention in Crittenden Court Apt. Assoc. v. Jacobson/Reliance, Cuyahoga App. Nos. 85395 and 85452, 2005-Ohio-1993, that case is distinguishable. In that case, the purpose for intervention “did not include the addition of any new liability or damages issues to the litigation,” and the proposed intervenor explained in its motion its reason for not attaching an intervening complaint as follows: “`Because [proposed intervenor] has no separate and independent claims to assert in this litigation, it is neither necessary or appropriate that it submit a pleading in conjunction with this motion as described in [Civ.R. 24(C)].'” Id. at ¶ 6. These are not the circumstances presented herein.

[4] The facts and circumstances in Rokakis v. Martin, 180 Ohio App.3d 696, 2009-Ohio-369, 906 N.E.2d 1200, a case relied on by Wells Fargo, were different from this matter. In Martin, the intervenor was a valid lienholder with a junior interest in the property to those already named in the action, its interest could be paid out of the excess sale proceeds remaining on deposit with the court, and its intervention would not operate to prejudice the original parties to the foreclosure action.

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FL APPEALS 5th DCA REVERSAL “Race-Notice, Unrecorded Instrument” ARGENT v. WACHOVIA

FL APPEALS 5th DCA REVERSAL “Race-Notice, Unrecorded Instrument” ARGENT v. WACHOVIA


ARGENT MORTGAGE COMPANY, LLC, Appellant,
v.
WACHOVIA BANK N.A., ETC., Appellee.

Case No. 5D09-4014.

District Court of Appeal of Florida, Fifth District.

Opinion filed December 30, 2010.

Jeffrey R. Dollinger, of Scruggs & Carmichael, P.A., Gainesville, for Appellant.
W. David Vaughn, of W. David Vaughn, P.A., Jacksonville, for Appellee.

GRIFFIN, J.
Argent Mortgage Company, LLC [“Argent”] appeals the trial court’s entry of judgment in favor of Wachovia Bank National Association, as Trustee Under Pooling and Servicing Agreement Dated as of November 1, 2004, Asset Backed Pass-Through Certificates Series 2004-WWF1 [“Wachovia”]. Argent argues that the trial court erred by finding that the mortgage now owned by Wachovia has priority over Argent’s mortgage. We reverse.
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Posted in STOP FORECLOSURE FRAUDComments (2)


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