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NY Judge Spinner Denies 86 Applications for JUDGMENT OF FORECLOSURE AND SALE Due to No Affirmation by Plaintiff Counsel

NY Judge Spinner Denies 86 Applications for JUDGMENT OF FORECLOSURE AND SALE Due to No Affirmation by Plaintiff Counsel


Excerpt:

Plaintiff has applied to this Court for the granting of a Judgment of Foreclosure & Sale pursuant to RPAPL § 1351. The express provisions of the Administrative Order of the Chief Administrative Judge of the Courts, no. A0548/10 require the filing of an Affirmation by Plaintiff’s counsel. No such Affirmation has been filed in this proceeding, in derogation of the aforesaid mandate. Accordingly, this application must be denied.

It is, therefore,

ORDERED that the within application by the Plaintiff shall be and the same is hereby denied without prejudice.

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Oregon judge voids foreclosure sale, casting doubt on others

Oregon judge voids foreclosure sale, casting doubt on others


Oregon Live-

A Columbia County judge has blocked U.S. Bank from evicting a Vernonia woman whose home it purchased in foreclosure, concluding in a case with far-reaching implications that her lenders had not properly recorded mortgage documents.

Last week’s action appears to be the first in which an Oregon judge has halted an eviction and declared a foreclosure sale void after the fact. The ruling, if it stands, raises questions about the validity of other recent foreclosures in the state and could create serious problems for lenders and title companies, as well as for buyers of such properties.

continue reading [OREGONLIVE]

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MI Trial Court Finds “MERS Transferred Nothing, Purported Transfers, Endorsements or Assignments Are Void Ab Initio” | HENDRICKS v. U.S. BANK

MI Trial Court Finds “MERS Transferred Nothing, Purported Transfers, Endorsements or Assignments Are Void Ab Initio” | HENDRICKS v. U.S. BANK


H/T Michelle

STATE OF MICHIGAN
WASHTENAW COUNTY TRIAL COURT

JAMES HENDRICKS, et al

v.

US BANK NATIONAL ASSOCIATION
AS SUCCESSOR TRUSTEE TO BANK
OF AMERICA


EXCERPT:

The Court finds that the “Assignment”, recored on Decmeber 30, 2009 in the Washtenaw County Register of Deeds, serves to transfer nothing. The alleged conveyance failed to comply with the terms and conditions of the PSA and the New York Trust Law which governs the PSA. The alleged conveyance stated MERS assigned the mortgage and Promissory Note to USB, however, there has been no evidence presented to support the chain of the required assignments and endorsements of the mortgage and note as required by the terms and conditions of the PSA.

[…]

Therefore, the purported transfers, endorsements or assignments are void ab initio or never properly transferred into the trust. The only defendant with standing to proceed is First Franklin, the originator and original Lender of the Note and Mortgage.

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IN RE ALCIDE, Bankr. Court, ED Pennsylvania | “EVERHOME, EVERBANK, MERS”

IN RE ALCIDE, Bankr. Court, ED Pennsylvania | “EVERHOME, EVERBANK, MERS”


In re: MICHELIN ALCIDE, Chapter 7, Debtor.

Bky. No. 10-15489 ELF.

United States Bankruptcy Court, E.D. Pennsylvania.

May 27, 2011.

MEMORANDUM

ERIC L. FRANK, Bankruptcy Judge

Excerpts:

II. FACTUAL BACKGROUND

A.

In order to place the present dispute in the proper procedural perspective, it is helpful to summarize certain background information regarding this chapter 13 case.

On July 27, 2010, less than four weeks after the commencement of the case, Everhome, as Servicer for Everbank, filed a proof of claim (Claim No. 3) (“the Proof of Claim”). The Proof of Claim is in the amount of $103,973.26 and states that the claim is secured by the Property. The Proof of Claim also states that instalment payments on the loan are delinquent from March 1, 2005 at $677.07 per month and that the total pre-petition delinquency on the loan is $63,703.80.[6]

The Debtor filed his bankruptcy schedules on August 3, 2010 and a chapter 13 plan on August 4, 2010. (Doc. #’s 15, 16).

In his bankruptcy schedules (“the Schedules”), the Debtor disclosed a one-half ownership interest in the Property. (Doc. # 15, Schedule A).[7] He disclosed the current value of his one-half interest in the Property as $50,000.00. I infer from the Debtor’s disclosure that he calculated the value of his interest in the property by dividing in half the value of the entire Property (i.e., $100,000.00 divided by two).

In his bankruptcy schedules, the Debtor also disclosed that the Property is encumbered by a mortgage in the amount of $103,973.26. In Schedule D, the Debtor identified three creditors as mortgage holders:

(1) MERS, Inc. as Nominee for Everhome Mortgage Co.;[8]

(2) Michael J. Clark, Esquire; and

(3) Everhome Mortgage Co., Inc.

(Doc. # 15, Schedule D).

In Schedule D, the Debtor also disclosed that the Property was encumbered by three municipal liens (two in favor of “Philadelphia Gas Works” and one in favor of “Water Revenue”) in the aggregate amount of $12,364.30.

The Debtor filed a chapter 13 plan (“the Plan”) on August 4, 2010. (Doc. # 16). In substance, the Plan proposed for the Debtor to pay $5.00 per month for 60 months ($300.00 total) to the Chapter 13 Trustee. In addition, the Plan provided for the Debtor to sell the Property and distribute the proceeds in full satisfaction of the allowed secured claim of the holder of the note and mortgage on the Property and the other claims secured by the Property, with any remaining sale proceeds to be turned over to the Trustee.

The Plan made no reference to value the of the Property or the fact that the total amount due on the secured claims, as disclosed on his Schedules, exceeds the value of the Property. The Plan did not explain how the Debtor would be able to consummate the proposed sale or how any net proceeds would be available to the Trustee from the sale of a $100,000 asset encumbered by more than $116,000.00 in liens. The Plan set no deadline for the sale of the Property. But see In re Erickson, 176 B.R. 753, 757 (Bankr. E.D. Pa. 1995) (suggesting that a chapter 13 plan that features the sale of the debtor’s property must state the terms and time of the contemplated sale).

B.

I find the following facts based on the testimony presented and the documents introduced into evidence at the March 17, 2011 hearing.

Everhome and Everbank

1. Everhome and Everbank are separate entities.

2. Everbank is the parent company of Everhome.

3. Everhome “services” mortgages held by Everbank, by accepting payments from borrowers and tracking those payments and any defaults that arise under the mortgage.

the Mortgage

4. On November 18, 1998, the Debtor entered into a mortgage loan transaction (“the Original Transaction”) with Home Mortgage, Inc. (“HMI”).

5. The mortgage loan transaction was guaranteed by the Federal Housing Administration.

6. In the Original Transaction, the Debtor signed a note (“the Note”) and a mortgage (“the Mortgage”) against the Property in favor of HMI. (See Ex. M-2).

7. The Mortgage states that it secures repayment of a debt evidenced by the Note. (Id.).

8. On June 30, 2000, HMI, acting through its Vice President, Teresa N. Jones, executed a written assignment, assigning the Mortgage to PrimeWest Mortgage Corporation (“PrimeWest”).

9. The HMI — PrimeWest assignment was recorded in the Philadelphia Department of Records on July 28, 2000. (Ex. M-4).

10. On June 1, 2005, PrimeWest, acting through its Vice President, Tanya Ault, executed a written assignment, assigning the Mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”), “as nominee for Everhome Mortgage Company.” (Ex. M-5).

11. The PrimeWest — MERS/Everhome assignment was recorded in the Philadelphia Department of Records on October 25, 2005. (Ex. M-5).

12. On March 8, 2011, MERS, again as “as nominee for Everhome Mortgage Company,” and acting through Ann Johnson, Assistant Secretary, and Marcie Metcalf, Vice President, executed a written assignment, assigning the Mortgage to Everbank. (Ex. M-7).

13. The March 8, 2011 MERS — Everbank mortgage assignment was unrecorded as of March 17, 2011, the date of the hearing in this contested matter.

the Note

14. Attached to the Note is a blank endorsement executed by an individual purportedly acting on behalf of PrimeWest.

15. Everhome does not have physical possession of the Note.

16. U.S. Bank has physical possession of the Note.

17. Everhome considers U.S. Bank to be acting as Everhome’s “custodian” in maintaining physical possession of the Note.[9]

18. The record does not reflect when U.S. Bank came into possession of the Note.[10]

the foreclosure Complaint

19. On September 14, 2005, MERS, acting in its own name (and without the qualifying reference “as nominee”) filed a complaint in mortgage foreclosure (“the Complaint”) against the Debtor in the Court of Common Pleas, Philadelphia County, Pennsylvania, docketed at No. 1150, Sept. Term 2005. (Ex. D-1).

20. In the Complaint, MERS alleged, without any qualification, that it is “the original Mortgagee named in the Mortgage, the legal successor in interest to the original Mortgagee, or is the present holder of the mortgage by . . . Assignment(s).” (Ex. D-1, Complaint ¶2).[11]

21. As of July 2, 2010, MERS’ motion for summary judgment, which the Debtor contested, was pending.

the bankruptcy case

22. The Debtor commenced this chapter 13 bankruptcy case on July 2, 2010.

23. On July 27, 2010, Everhome, acting “as servicer for Everbank,” filed a proof of claim, asserting a claim secured by the Property in the amount of $103,973.26, with pre-petition arrears of $63,703.80.

24. On October 4, 2010, Everhome, again acting “as servicer for Everbank,” initiated this contested matter by filing the Motion, alleging that it is the “holder of a secured claim” against Debtor, secured by a first mortgage on the Property.

25. The Motion requests that the court grant Everhome relief from the automatic stay “to foreclose upon and to otherwise exercise its rights with respect to the [Property].”

26. Since the commencement of this bankruptcy case, the Debtor has made no payments to Everhome or Everbank.

[…]

C. Everhome Has Not Established that It Is A Party In Interest

On the present record, Everhome has not established that it is a party in interest entitled to seek relief from the automatic stay under 11 U.S.C. §362(d) in order to prosecute a foreclosure action against the Property. Everhome has not presented sufficient evidence to permit a finding that it is either: (1) the holder of the mortgage, with the concomitant right to enforce it under Pennsylania law or (2) an agent authorized by the holder of the Mortgage to initiate court proceedings to enforce the Mortgage on the holder’s behalf.

1.

When it filed the Motion, Everhome had a record interest in the Mortgage in the form of the 2005 mortgage assignment from PrimeWest to MERS “as nominee for Everhome.”[20] As stated above, Pennsylvania law unequivocally provides that a mortgage holder may enforce the mortgage in a judicial foreclosure proceeding. See Part III.B.2., supra. Thus, at first blush, Everhome would have appeared to be a party in interest when it filed the Motion. However, other evidence presented conclusively contradicted Everhome’s apparent status as the mortgage holder.

Most significantly, during the hearing, Everhome made no claim that it is the mortgage holder. All of the evidence it presented, through Mr. Ricketson’s testimony, was designed to prove that Everhome is servicing the Mortgage on behalf of its parent company, Everbank. Everhome made no effort to harmonize this position with the inconsistent language in the 2005 mortgage assignment from PrimeWest to MERS — Everhome. Everhome’s own position in the litigation, by itself, makes it impossible to accord it “party in interest” status as the holder of the Mortgage.

Further, by the time the hearing was held in this contested matter, another mortgage assignment had been executed, which on its face removed Everhome as the beneficial mortgagee. Although the March 2011 assignment from MERS to Everbank was not recorded, under Pennsylvania law, the allegation that a party is the owner of a mortgage that is not yet recorded is sufficient to permit that party to proceed as a plaintiff in an action in mortgage foreclosure. Mallory, 982 A.2d at 993. Thus, Everhome’s own evidence tended to prove that Everbank, not Everhome, is the party in interest with the right to enforce the Mortgage under applicable nonbankruptcy law.[21]

Everbank has not made a preliminary showing that it is a holder of the Mortgage with a right of enforcement. Therefore, Everhome may be a party in interest only if the evidence shows that Everhome has been authorized by the party that has the right to enforce the Mortgage to initiate legal proceedings on its behalf.

2.

Everhome’s position is that the Mortgage is held by Everbank and that as the servicer of the Mortgage, it has authority to file a motion for relief from the automatic stay. The Debtor does not concede this.

A number of courts have upheld the authority of a mortgage loan servicer to file a proof of claim on behalf of the mortgage holder.[22] Most of the reported decisions also hold that a mortgage loan servicer has standing and is a party in interest entitled to prosecute a motion for relief from the automatic stay.[23]

After reviewing the relevant case law, I conclude that a servicer’s financial interest in the debtor’s unpaid stream of mortgage payments satisfies the initial, and most fundamental, requirement for “party in interest” status (“injury in fact”), but does not automatically meet the prudential requirement that the movant assert its own legal rights, not that of a third party.

Most commonly, as in this case, a motion for relief from the automatic stay requests that the bankruptcy court authorize the movant to initiate or resume a foreclosure against the secured property. The purpose of the foreclosure action is to subject the secured property to sale, thereby permitting the secured creditor to realize its collateral. In Pennsylvania, it is the mortgage holder that has the right to pursue an action in mortgage foreclosure. Therefore, even though the servicer has an economic interest in the revenue stream generated by the mortgage, the relief requested in a stay relief motion — the right to pursue foreclosure proceedings against the collateral — involves the enforcement of the rights of the mortgage holder, not the servicer. Thus, the servicer’s economic stake in the mortgage does not necessarily mean that the servicer is a party in interest that may seek relief from the automatic stay in order to proceed with foreclosure.

That said, even though the in rem rights to be enforced following the grant of relief from the automatic stay may be those of the mortgage holder and not the servicer, the servicer may nonetheless be a party in interest in the bankruptcy case, with the right to prosecute a stay relief motion, if the servicer is acting within the scope of its authority as the mortgage holder’s agent. Whether it has such authority depends on the content of the servicing agreement between the mortgage holder and the servicer. That agreement may or may not be broad enough in scope as to delegate to the servicer the authority to initiate and manage foreclosure litigation on the mortgage holder’s behalf.[24]

A servicer can establish its authority to initiate the legal action if it demonstrates that its contractual duties to the mortgage holder include not just the collection of payments, but also the conduct of mortgage foreclosure and other legal proceedings on the holder’s behalf. Such authority includes the power to move for relief from the automatic stay in the bankruptcy court. See Martinez, 2011 WL 996705, at *5; Jacobson, 402 B.R. at 367; Woodbury, 383 B.R. at 379. Stated in slightly different terms, a servicer may have standing and be a party in interest if it files the motion for relief from the automatic stay in its capacity as the holder’s attorney-in-fact. See Hwang I, 396 B.R. at 767.[25]

Reduced to its essence, to establish its status as a party in interest entitled to seek relief from the automatic stay under 11 U.S.C. §362(d) in order to enforce legal remedies for a default under a mortgage, a mortgage servicer must demonstrate that:

(1) the initiation of the stay relief motion in the bankruptcy court is within the scope of authority delegated to the servicer by its principal and

(2) the principal itself is a party in interest (i.e., its principal is a party with the right to enforce the mortgage).

In this case, assuming arguendo that the record supports a finding that Everbank is the mortgage holder with the authority to enforce the Mortgage in foreclosure proceedings, but see n. 21, supra, there is a paucity of evidence regarding the scope of Everhome’s authority as servicer. The parties’ servicing agreement was not introduced into evidence; nor were its particulars described by Everhome’s trial witness. In his testimony, Mr. Ricketson described Everhome as having the authority to collect payments, track payments and determine when an the account is in default. There was no evidence that Everbank has appointed Everhome as its agent for the purpose of initiating legal proceedings to enforce the Mortgage.

This is a fatal gap in the evidence. I am unwilling to assume that the mere label of “servicer” is sufficient to cloak Everhome with authority to file a legal action on Everbank’s behalf.

Given the Debtor’s denial of Everhome’s asserted party in interest status in his written response to the Motion, some evidence of Everhome’s authority was necessary and that evidence was not offered. As the Wilhelm court stated

At the pleading stage, plaintiffs in federal court may rely on the allegations of their complaint to establish standing. Similarly, stay relief movants may initially rely upon their motion. But if a trustee or debtor objects to a stay relief motion based upon lack of standing, the movant must come forward with evidence. Additionally, if the stay relief motion itself reveals a lack of standing, movants cannot rest on the pleadings.

407 B.R. at 400 (citation omitted); see also Jacobson, 402 B.R. at 370 (“At a minimum, there must be an unambiguous representation or declaration setting forth the servicer’s authority from the present holder . . . to collect on the note and enforce [the mortgage]”).

Accordingly, the Motion must be denied.[26]

IV. CONCLUSION

This is a case in which the Debtor was substantially in arrears on his home mortgage when he commenced this bankruptcy case, has not paid his monthly mortgage payment over a number of months since filing the case and proposed a chapter 13 plan that contemplates the sale of his residence and that, on its face, is of questionable feasibility due to the apparent lack of equity in the Property. Without prejudging the merits of the motion for relief from the automatic stay, there is no question that the mortgagee has a good faith basis for pressing a motion for relief from the automatic stay.

At the same time, however, it is understandable why the Debtor responded to the Motion by demanding proof that Everhome was the proper party to come before the court. From his perspective, Everhome’s role in the mortgage relationship is, at best, opaque. Prior to the bankruptcy filing it was MERS (purporting, at least initially, to act in its own right), not Everhome or Everbank, that filed the foreclosure action against Debtor in state court. And, as the evidence revealed, Everhome holds itself out as merely the mortgage servicer and not the mortgage holder. There is no doubt that the Debtor acted in good faith in disputing Everhome’s status as a party in interest. In fact, the Debtor’s position was meritorious. At trial, Everhome failed to come forward with sufficient evidence to establish its party in interest status, resulting in the denial of the relief Everhome requested from this court.

To the extent that the outcome in this matter may appear anomalous due to the apparent merits of the request for stay relief and the seemingly technical nature of the issue regarding the identity of the proper moving party, the fault lies with the moving party. When a party claiming to be a secured creditor seeks relief from the automatic stay, the Debtor and the bankruptcy court are entitled to insist that the moving party show that it is the holder of the secured claim or that it is the authorized agent of the holder. This imposes an evidentiary burden “that is not difficult to meet,” requiring only “present[ation of] the rudimentary elements of its claim.” In re Salazar, 2011 WL 1398478, at *2, 3 (Bankr. S.D. Cal. Apr. 12, 2011). Indeed, in this case, the evidentiary shortfall does not appear to have been insurmountable.

In the age of mortgage securitization, meeting the evidentiary burden imposed by the “party in interest” requirement of 11 U.S.C. §362(d) may be a somewhat more cumbersome task for certain stay relief movants than it was for residential mortgagee—movants in the past, but that does not justify diluting the fundamental constitutional and statutory requirement that a party be a “party in interest” before it may obtain redress from a federal bankruptcy court. Any added burden is a product of the business model chosen by the mortgage finance industry and therefore, is simply part of the mortgage loan industry’s cost of doing business. Presumably, the cost is offset by the benefits of the mortgage securitization system.

Furthermore, while a moving creditor may believe that its status as a party in interest is self-evident, the court cannot rule based on factual assumptions or evidentiary leaps. Our legal system is governed by the core principle that court decisions are based on the evidence presented to the court. That principle cannot be compromised because a particular industry has chosen a business model that complicates its legal affairs and makes it inconvenient to come forward with the evidence needed to establish its status as a proper party. In the final analysis, the Motion must be denied to protect the integrity of the legal process.

For these reasons, I will deny the Motion without prejudice.

….

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OPTION ARM | Foreclosure Deal May Let Banks Pick Payment Options

OPTION ARM | Foreclosure Deal May Let Banks Pick Payment Options


So much for the RegiSTARS, who requested to be included in discussions…and being ignored.

BLOOMBERG-

U.S. banks and state attorneys general, seeking to avoid $17 billion in court claims over faulty foreclosures, are discussing a settlement framework that may let firms choose from a menu of options for helping borrowers, two people briefed on the talks said.

Under the proposal, Bank of America Corp. (BAC), Wells Fargo & Co. (WFC), JPMorgan Chase & Co. (JPM), Citigroup Inc. (C) and Ally Financial Inc. would pay penalties and pledge billions of dollars in relief to home buyers, one of the people said, asking not to be named because the talks are private. Firms may fulfill obligations to borrowers over time, choosing among options such as reducing loan principal, cutting fees or paying moving costs, the people said.


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READ | Letter from Utah Attorney General Mark Shurtleff to Bank of America President Brian T. Moynihan re: ReconTrust “ILLEGAL”

READ | Letter from Utah Attorney General Mark Shurtleff to Bank of America President Brian T. Moynihan re: ReconTrust “ILLEGAL”


“All real estate foreclosures conducted by ReconTrust in the state of Utah are not in compliance with Utah’s statutes, and are hence illegal”

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Lenders say they’re owners ‘in name only’ and don’t have to pay for upkeep

Lenders say they’re owners ‘in name only’ and don’t have to pay for upkeep


This is when those placeholders “A Bad Bene, Bogus Assignee” might come in handy… Maybe AG Harris will put a stop to this madness.

MSNBC

Not according to Deutsche or other banks. They say they aren’t really the owners, despite the fact that their name appears on the property title. They also say they are not responsible for maintenance.

Representatives of Deutsche, as well as U.S. Bank, BNY Mellon and HSBC — three other major lenders that Los Angeles is investigating with an eye to suing, all said that loan servicers are responsible for property upkeep, as well as tasks such as sending default notices, modifying loans, selling homes, and collecting rent and mortgage payments.

“We’re there in name only,” said Teri Charest, spokeswoman for U.S. Bank. “We’re trustees. We have a very limited role.”

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STATEMENT BY CT ATTORNEY GENERAL GEORGE JEPSEN CONCERNING MORTGAGE FORECLOSURE INVESTIGATION

STATEMENT BY CT ATTORNEY GENERAL GEORGE JEPSEN CONCERNING MORTGAGE FORECLOSURE INVESTIGATION


ATTORNEY GENERAL GEORGE JEPSEN
STATEMENT BY ATTORNEY GENERAL GEORGE JEPSEN
CONCERNING MORTGAGE FORECLOSURE INVESTIGATION

For immediate release ……………………………………..TUESDAY MAY 17, 2011

“The multistate investigation of the nation’s largest mortgage servicing companies confirms what my office has been told by thousands of Connecticut consumers, that these banks have done an incredibly poor job in dealing with the mortgage foreclosure mess they were instrumental in creating. As a result, millions of families have needlessly suffered, homeowners have lost billions of dollars in equity, and the real estate market continues to stagnate. Time is of the essence to fix this problem.

“Thus far, the national servicers have been unwilling to step up to the plate with the money necessary to address the full scope of the problems they themselves created. I believe they face substantial legal liability for their clearly illegal behavior should states be forced to sue. After being bailed out by American taxpayers, the banks owe those same taxpayers a real effort to partner with state and federal officials to clean up this mess.”

Attorney General Jepsen is a member of the National Association of Attorneys General multi-state task force seeking resolution of the mortgage foreclosure crisis

[Source: http://www.ct.gov/ag/site/default.asp]

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NJ Appellate Div. Denies U.S. BANK “Vacate Default Judgment, Foreclosing Interest of MERS in Residential Realty” | WACHOVIA BANK v WRIGHT

NJ Appellate Div. Denies U.S. BANK “Vacate Default Judgment, Foreclosing Interest of MERS in Residential Realty” | WACHOVIA BANK v WRIGHT


SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1422-09T2

WACHOVIA BANK, N.A.,
Plaintiff-Respondent,

v.

GREGORY WRIGHT a/k/a
GREG WRIGHT, MRS. GREGORY
WRIGHT
, his wife, and
LAKES AT LARCHMONT
CONDOMINIUM ASSOCIATION
,
Defendants,
and
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC
.,
Defendant-Appellant.
_______________________________

EXCERPT:

PER CURIAM

U.S. Bank National Association (US Bank), as successor in interest to defendant Mortgage Electronic Registration Systems, Inc. (MERS), appeals from a Chancery Division order denying its request to vacate the default judgment against it and foreclosing the interest of MERS in residential realty.1 We affirm.

These facts are taken from the motion record. Defendant Gregory Wright purchased real property on Albridge Way in Mt. Laurel Township (the subject realty) on September 2, 2003. On December 2, 2005, Wright contracted with JP Morgan Chase, N.A. (Chase) for a mortgage and a line of credit secured by a second mortgage on the subject realty. On August 9, 2006, Wright refinanced the Chase debts and withdrew additional equitable value from the realty. He borrowed $210,000 from MERS through its agent, Accredited Home Lenders, Inc. (AHL). Inexplicably, the MERS mortgage was not recorded for over a year, until September 17, 2007.

Continue below…

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QUIET TITLE | Ohio Appeals Court Precludes US BANK From Pursuing Any Further Action on the Note, Finds Unenforceable

QUIET TITLE | Ohio Appeals Court Precludes US BANK From Pursuing Any Further Action on the Note, Finds Unenforceable


COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

~

U.S. BANK, N.A., AS TRUSTEE

Plaintiff-Appellee
-vs-

GIUSEPPE GULLOTTA, ET AL.

Defendant-Appellant

EXCERPT:

{¶24} Based on the foregoing, we find the two-dismissal rule of Civ.R. 41(A) applies and res judicata barred U.S. Bank’s complaint in this case. We find the practical effect of the same precludes U.S. Bank from pursuing any further action on the note. Because the mortgage draws its essence from the note, we find it unenforceable. We find the trial court erred in not granting Appellant’s motion for summary judgment to quiet title.2

{¶25} Appellant’s two assignments of error are sustained.

{¶26} The judgment of the Stark County Court of Common Pleas is reversed.

Continue below…

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In RE: PHILLIPS | Alabama BK Court Denies Aurora, U.S. Bank Motion to Dismiss Fraud Claims

In RE: PHILLIPS | Alabama BK Court Denies Aurora, U.S. Bank Motion to Dismiss Fraud Claims


UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF ALABAMA

IN RE PHILLIPS

In re: RICK ALLEN PHILLIPS and REBECCA RUTLAND PHILLIPS, Debtors.
RICK ALLEN PHILLIPS
, Plaintiff,

v.

AURORA LOAN SERVICES, LLC and U.S. BANK, AS TRUSTEE FOR STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-10.

Case No. 08-11442-MAM-7, Adv. Proc. No. 11-00027.

United States Bankruptcy Court, S.D. Alabama.

May 9, 2011.

Mindi C. Robinson, Adams and Reese, LLP, Birmingham, Alabama, Attorneys for Defendants.
Scott Hetrick and Nicholas F. Morisani, Adams and Reese, LLP, Mobile, Alabama, Attorneys for Defendants.

Nick Wooten, Auburn, Alabama, Attorney for Plaintiff.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ADVERSARY CASE

MARGARET A. MAHONEY, Bankruptcy Judge

This case is before the Court on Defendants’ Motion to Dismiss this adversary case on various grounds. The Court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Order of Reference of the District Court. The Court has the authority to enter a final order pursuant to 28 U.S.C. § 157(b)(2). For the reasons indicated below, the Court is granting the Defendants’ Motion to Dismiss all grounds for relief, except for the fraud on the court grounds.

FACTS

The Plaintiff’s complaint alleges that the documentation of the Phillips’ mortgage and transfer of it were flawed such that the mortgage is avoidable as a preference or fraudulent transfer. The complaint also asserts that the defendants violated the Phillips’ automatic stay and committed a fraud on the Court. The facts that are relevant to this motion are a limited set of the facts alleged in the complaint.

Phillips entered into a note and mortgage with Lehman Brothers Bank, FSB on September 7, 2007, in the amount of $840,000 when he purchased real estate located at 26200 Perdido Beach Boulevard, Condo Unit 1505, Orange Beach, Alabama. The mortgage indicated that the lender was Lehman Brothers Bank, FSB. The mortgage also indicated that Mortgage Electronic Registration Systems, Inc. (“MERS”) was “the mortgagee under this Security Agreement.” The document also stated that MERS was “acting solely as a nominee for Lender and Lender’s successors and assigns.” The note was in the name of Lehman Brothers Bank, FSB as well. The mortgage was recorded in the Baldwin County, Alabama Probate Court records on October 10, 2007. There was no new filing in the Baldwin County Probate Court until July 28, 2009, when an assignment of the mortgage was filed. MERS, “as nominee for Lehman Brothers Bank, FSB,” assigned the mortgage to Aurora Loan Services.

On April 25, 2008, Rick Phillips and his wife filed a chapter 7 bankruptcy petition. On December 30, 2008, Aurora filed a motion for relief from the automatic stay. The motion stated that Aurora was the “holder of the mortgage” and was a “creditor” of Phillips. The motion had a copy of the note and mortgage attached to it. The note stated that Lehman Brothers Bank, FSB was the note holder. The note was not endorsed to any other party or in blank. The mortgage stated that Lehman Brothers Bank, FSB, was the lender with MERS being the “mortgagee under this Security Instrument” and stating that MERS was “acting solely as a nominee for Lender and Lender’s successors and assigns.” Neither the Debtor nor the Trustee objected to the standing of Aurora to seek relief from the stay. In fact, an order to which the Debtor and Trustee consented was entered on February 12, 2009.

There are other facts asserted in the complaint about the mortgage. U.S. Bank had purchased the note and mortgage of Phillips on or about October 30, 2007, and placed the mortgage in a securitized trust of which U.S. Bank was trustee. Aurora was named servicer for U.S. Bank about the same date. The complaint also states that the mortgage was assigned to U.S. Bank in the MERS system of recordation on about October 1, 2007. These facts support Phillips’ claims in the complaint.

LAW

The complaint asserts that Phillips is entitled to: have the mortgage declared null and void as a fraudulent transfer due to 11 U.S.C. § 544(a)(3); have the transfer of funds to U.S. Bank at foreclosure declared a preference under 11 U.S.C. § 547 and have the funds turned over to the trustee; have the foreclosure and transfer of funds to U.S. Bank declared a violation of the automatic stay pursuant to 11 U.S.C. § 362; have the actions of Aurora and U.S. Bank declared a fraud on the court; and have this court quiet title to the property, declaring title to be in the bankruptcy estate of Phillips. The defendants have filed a motion to dismiss prior to answering the complaint as is their right pursuant to Fed. R. Bank. P. 7012.

To survive a motion to dismiss for failure to state a claim upon which relief can be granted, a complaint must contain sufficient factual allegations such that it raises a right to relief above the speculative level. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In assessing the merits of a Rule 12(b)(6) motion, the Court must assume that all factual allegations set forth in the complaint are true. See, e.g. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002). Because all factual allegations are taken as true, the failure to state a claim for relief presents a purely legal question. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1269 n.19 (11th Cir. 2009).

The defendants assert four grounds upon which the complaint should be dismissed. The grounds are res judicata, judicial estoppel, the fact that Aurora was a creditor, and the fact that the defendants could not have violated the stay. The court concludes that res judicata eliminates all grounds except fraud on the court and therefore Counts One, Two, Three and Five are due to be dismissed.

“Application of res judicata is central to the fundamental purpose of the judiciary — the conclusive resolution of disputes.” Curry v. Baker, 802 F.2d 1302, 1310 (11th Cir. 1986) (citing Montana v. United States, 440 U.S. 147, 153 (1979)). “Finality `relieve[s] parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication.'” Id. (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). “Under res judicata, also known as claim preclusion, a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001). Claim preclusion bars subsequent litigation when the following conditions are met: (1) the prior decision was rendered by a court of competent jurisdiction; (2) there was a final judgment on the merits; (3) both cases involve the same parties or their privies; and (4) both cases involve the same causes of action. Id. “In general, cases involve the same cause of action for purposes of res judicata if the present case `arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action.” Israel Discount Bank, Ltd. v. Entin, 951 F.2d 311, 315 (11th Cir. 1992) (quoting Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir. 1990)).

With regards to the Relief from Stay Order that was entered on February 12, 2008, this Court’s jurisdiction was proper under 28 U.S.C. §§ 157 and 1334 and the Order of Reference of the District Court. The order was entered by consent of the parties and, following entry of that order, no party filed a motion to reconsider. The Consent Order Granting Relief from Stay was a final order. The Motion for Relief from Stay lists the Phillips as debtors and Ms. Littleton as the Trustee. All parties received notice of the motion and the mortgage and note were attached to the motion. Neither the Phillips nor the Trustee raised any objection, rather, the stay was lifted by agreement of the parties. The Plaintiff now brings a complaint seeking to avoid the mortgage, quiet title, and turnover the funds liquidated. Permitting such a challenge to go forward would violate the doctrine of res judicata because each of the elements of claim preclusion have been met in this case. The proper time for the Plaintiff to question the mortgage and note was when the Relief from Stay Motion was filed. However, no one challenged or questioned the mortgage and note at that time. It would be improper to permit them to relitigate those issues now.

With regards to Count Four of the Plaintiff’s complaint alleging Fraud on the Court, that issue has not been previously litigated. The complaint alleges that the Defendants filed false pleadings concealing the true mortgage creditor’s identity, thereby violating the bankruptcy rules and perpetrating a fraud on the court. Inappropriate behavior, including litigation abuse and fraud, can be dealt with by a bankruptcy court pursuant to § 105 of the Code as an “abuse of the bankruptcy process.” Under § 105, sanctions may be warranted against parties who willfully abuse the judicial process. In re Gorshtein, 285 B.R. 118 (Bankr. S.D.N.Y. 2002). This power is broad enough to empower a court to impose sanctions for “filings [in a case] as well as commencement or continuation of an action in bad faith.” Id. (citing In re Spectee Group, Inc., 185 B.R. 146, 155 (Bankr. S.D.N.Y. 1995). Taking the Plaintiff’s factual allegations as true, Aurora claimed in the motion for relief from stay to be a creditor and the holder of the mortgage. There is no document that supports those assertions other than a statement in a Pooling and Servicing Agreement filed with the SEC. This allegation of filing a false pleading is sufficient to raise a right to relief above a speculative level in that the Plaintiff has stated a claim for fraud on the court. The motion for dismissal is due to be denied with regards to Count Four of the complaint.

Therefore it is ORDERED:

1. The Defendants’ Motion to Dismiss as to counts one, two, three, and five is GRANTED;
2. The Defendants’ Motion to Dismiss as to count four is DENIED.

Copy courtesy of LEAGLE

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Regulatory Actions Related to Foreclosure Activities by Large Servicers and Practical Implications for Community Banks

Regulatory Actions Related to Foreclosure Activities by Large Servicers and Practical Implications for Community Banks


This Special Foreclosure Edition describes lessons learned from an interagency review of foreclosure practices at the 14 largest residential mortgage servicers and includes examples of effective mortgage servicing practices derived from these lessons.

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Click Image Below

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MUST READ | Ohio Supreme Court Reviews Order Certifying Conflict Exists “Owner AND Holder”

MUST READ | Ohio Supreme Court Reviews Order Certifying Conflict Exists “Owner AND Holder”


Read this below first to understand the Supreme Court:

[CLICK LINK] to OHIO APPEALS COURT AFFIRMS “NO STANDING TO FORECLOSE” U.S. BANK v. DUVALL

U.S. Bank National Assoc.
v.
Antoine Duvall et al.

This cause is pending before the Court on the certification of a conflict by the Court of Appeals for Cuyahoga County. On review of the order certifying a conflict, it is determined that a conflict exists. The parties are to brief the issue stated in the court of appeals’ Judgment Entry filed January 31, 2011, as follows:

“To have standing as a plaintiff in a mortgage foreclosure action, must a party show that it owned the note and the mortgage when the complaint was filed?”

It is ordered by the Court that the Clerk shall issue an order for the transmittal of the record from the Court of Appeals for Cuyahoga County.

(Cuyahoga County Court of Appeals; No. 94174)

Maureen O’Connor
Chief Justice

Case Announcements:

The conflict cases are U.S. Bank, N.A. v. Bayless, Delaware App. No. 09
CAE 01 004, 2009-Ohio-6115, U.S. Bank, N.A. v. Marcino, 181 Ohio App.3d 328,
2009-Ohio-1178, Bank of New York v. Stuart, Lorain App. No. 06CA008953,
2007-Ohio-1483, and Countrywide Home Loan Servicing, L.P. v. Thomas, Franklin
App. No. 09AP-819, 2010-Ohio-3018.

[ipaper docId=54183196 access_key=key-kd5q57ekt9vnojcm3yd height=600 width=600 /]

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Banks Rush to Improve Foreclosure Practices,

Banks Rush to Improve Foreclosure Practices,


Tic Toc, Tick Toc,

Tic Toc…

Wall Street Journal-

“We’re not happy” with the time it takes to give borrowers an answer, said Christine Larsen, head of operations for retail financial services at J.P. Morgan, who is responsible for implementing the consent orders. The bank is trying to speed response times by setting new customer-communication deadlines.

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HAWAII SB651 Foreclosure, Mediation, Dispute Bill

HAWAII SB651 Foreclosure, Mediation, Dispute Bill


This part shall apply to  nonjudicial foreclosures conducted under part II by power of sale, of residential real property that is occupied by one or more mortgagors as a primary residence; provided that this part shall not apply to actions by an association to foreclose on a lien for amounts owed to the association that arise under a declaration filed pursuant to chapter 514A or 514B, or to a mortgagor who has previously participated in dispute resolution under this part for the same property on the same mortgage loan.

[ipaper docId=54109578 access_key=key-2fs3s6lpsn9kt27gps8m height=600 width=600 /]

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Hawaii Foreclosure Face Off

Hawaii Foreclosure Face Off


Honolulu Weekly-

A recent 60 Minutes segment investigated Mortgage Electronic Registration Systems (MERS), a private company that acts as an agent for institutions seeking to speed up the processing of their loan modifications. MERS, which claims to handle about 60 million loans (nearly half of all home loan modifications in the country) with fewer than 50 staff. In an April 2010 lawsuit, the founder of MERS admitted that the untrained and non-certified “notaries” were allowed to illegally notarize hundreds of documents daily, as well as “robo-sign” up to 4,000 foreclosure documents daily.

<SNIP>

“There are increasing reports around the country of wrongful foreclosures,” said Recktenwald. “It is especially important to protect our citizens from fraudulent practices.” Recktenwald referred to states that have passed comprehensive legislation and seen dramatic reductions in foreclosures. “I want to express that this is personal for me. Our home is a sacred meeting place for friends, family and community–not a game piece on a Monopoly board. Why I’ve chosen to make Hawaii my home is that I am joined with fellow stewards of the land. Our love of this land is greater than the greed of Wall Street.”


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Law Offices of David J. Stern, P.A. v. U.S. Bank, National Association

Law Offices of David J. Stern, P.A. v. U.S. Bank, National Association


Case Number: 1:2011cv21397
Filed: April 20, 2011
Court: Florida Southern District Court
Office: Miami Office
Presiding Judge: Judge Cecilia M. Altonaga
Referring Judge: Magistrate Judge Andrea M. Simonton
Nature of Suit: Contract – Other Contract
Cause: 28:1332 Diversity-Notice of Removal
Jury Demanded By: None
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Another OH Appeals Court Dismissal For Lack of Final Appealable Order NATIONSTAR v. FISHER

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


Are we seeing a pattern here?

Excerpt:

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

Continue reading…

[ipaper docId=53662974 access_key=key-1w3nxnejox2d3s4ap8n8 height=600 width=600 /]

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

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


Excerpt:

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

Continue below…

[ipaper docId=53662659 access_key=key-2nkohf3ddpoql02ky9xu height=600 width=600 /]

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CA BK Court Rejects MERS’ Offer Of An Alternative To The Public Recording System | IN RE: SALAZAR

CA BK Court Rejects MERS’ Offer Of An Alternative To The Public Recording System | IN RE: SALAZAR


“MERS System in not an Alternative to Statutory Foreclosure Law”

[ipaper docId=52898750 access_key=key-2jhywofse98k69c693yd height=600 width=600 /]

Via: FindsenLaw

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NY Judge Puts An End To Modification Game, Strikes Back With His Own Rules | U.S. BANK v. PADILLA

NY Judge Puts An End To Modification Game, Strikes Back With His Own Rules | U.S. BANK v. PADILLA


Must read to understand the frustration this single parent, nurse and strong-willed individual was put through. Absolutely NO excuse and this is another reason why HAMP was such a disaster!

Again, where exactly do these “trial payments” go to?

US Bank National Association, as Trustee For CMLTI 2007-WFHE3, Plaintiff,

against

Alejandra Padilla et al., Defendants.

8979/09
Steven J. Baum, P.C.
Attorneys for Plaintiff
220 Northpointe Parkway, Suite G
Amherst, New York 14228

Ms. Alejandra Padilla
Defendant, Pro Se
One Vine Street
Beacon, New York 12508

James D. Pagones, J.

Excerpt:

ORDERED that plaintiff is directed to re-open the homeowner’s file and consider her for a modification taking into consideration the bank’s delay in reaching a decision; and it is further

ORDERED that plaintiff is barred from collecting any interest incurred from October 4, 2010, until the date the matter is released from the settlement part; and it is further

ORDERED that any unpaid late fees are waived; and it is further

ORDERED that any loan modification fees are to be either waived or refunded to the homeowner; and it is further;

ORDERED that any attorney’s fees and other bank fees claimed to have been incurred from the date of the default until the date of this matter is released from the settlement part are not to be included in the calculation of the homeowner’s modified mortgage payment or otherwise imposed on the homeowner, but, rather, any request for attorney’s fees is hereby severed and to be submitted to the court for separate, independent review as to their reasonableness; and it is further

ORDERED that a bank representative fully familiar with the file and with full authority to approve and enter into a loan modification appear in person at the next conference, and it is further

ORDERED that an attorney associated with plaintiff’s firm must appear at the hearing (local counsel may not appear); and it is further

ORDERED that the parties appear for a further conference in the Foreclosure Settlement Part on April 25, 2011 at 3:00 p.m. Adjournments are granted only with leave of the Court.

Failure to comply with this order may result in sanctions.

The foregoing constitutes the order of the Court.

Dated: Poughkeepsie, New York

April 8, 2011

ENTER

HON. JAMES D. PAGONES, A.J.S.C. [*5]

[ipaper docId=52815350 access_key=key-ci799bsq760x15al7w0 height=600 width=600 /]

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BANK FRAUD by Lynn E. Szymoniak, Esq. (FRAUD DIGEST)

BANK FRAUD by Lynn E. Szymoniak, Esq. (FRAUD DIGEST)


Akerman Senterfitt & Eidson, P.A.
American Home Mortgage Servicing
Docx, LLC
Florida Default Law Group
Law Offices of David Stern
Law Offices of Marshall Watson
Lender Processing Services, Inc.
Shapiro & Fishman Law Firm


Action Date: April 4, 2011
Location: West Palm Beach, FL

On April 3, 2011, CBS’ 60 MINUTES aired a segment showing massive fraud by banks and mortgage-backed trusts in foreclosures. The segment focused on one particular document mill, Docx, LLC, owned by Lender Processing Services, Inc., a company that works for over 51 banks. One former employee confessed to forging 4,000 documents each day.

What mortgage servicing companies used the Docx forged documents in hundreds of thousands of cases? The major mortgage servicer involved was American Home Mortgage Servicing, Inc. in Coppell, TX. Other mortgage servicers that used forged documents from LPS include Saxon Mortgage Services in Fort Worth, TX and Select Portfolio Servicing in Salt Lake city, Utah.

What bank/trustees most often used the Docx forged documents in foreclosures? Deutsche Bank National Trust Company, U.S. Bank, Wells Fargo, Citibank and Bank of America were the top five users of these forged documents, but other banks were also involved.

American Home Mortgage Servicing, Inc. knew about the forgeries, but never disclosed to courts or homeowners their widespread use of forged documents.

In thousands of cases across the country, Deutsche Bank National Trust Company continues to push these documents upon the courts as proof that they own mortgages and have the right to foreclose, despite overwhelming evidence and even admissions of forgeries.

These servicing companies and bank need to begin the process of admissions, disclosures and reparations.

What law firms pushed and continue to push these fraudulent documents upon Courts and homeowners? In Florida, the firms that used these documents and continue to use these documents are: Law Offices of David Stern; Florida Default Law Group; Law Offices of Marshall Watson; Shapiro & Fishman Law Firm and Akerman, Senterfitt & Eidson, P.A. Lawyers who used and continue to use these Docx forgeries in court should, at a minimum, lose the right to practice law.

The government focus must be on protecting the rights of homeowners and shareholders and the court system and holding the banks and securities companies accountable.


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