Don’t we love New York!

This is another case for you all to learn from…Now again, shouldn’t their be a conflict of any documents where MERS is the nominee for any of these banks?

I think we are going to see lenders, servicers et al slowly begin to turn on MERS!

2010 NY Slip Op 51127(U)

IndyMAC BANK F.S.B., Plaintiff(s),
v.
LUDDY BRITO GARCIA, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ACTING SOLELY AS A NOMINEE FOR STERLING NATIONAL MORTGAGE COMPANY, INC., SUBSIDIARY OF FEDERALLY CHARTERED BANK, ITS SUCCESSORS AND ASSIGNS, AND “JOHN DOE # 1” THROUGH “JOHN DOE # 10”, THE LAST TEN NAMES BEING FICTITIOUS AND UNKNOWN TO plaintiff, THE PERSONS OR PARTIES INTENDED BEING THE PERSONS OR PARTIES, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE MORTGAGED PREMISES DESCRIBED IN THE COMPLAINT, Defendant(s).

7282-2008

Supreme Court, Suffolk County.

Eschen, Frenkel & Weisman, LLP, 20 West Main Street, Bay Shore, New York 11706, Attorneys for Plaintiff.

Luddy Brito Garcia, 124 East 13th Street, Huntington Station, New York 11746, Defendant Pro Se.

PETER H. MAYER, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated June 2, 2009, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that plaintiff’s application (seq. # 002) for an order of reference in this foreclosure action is considered under 2009 NY Laws, Ch. 507, enacted December 15, 2009, and 2008 NY Laws, Ch. 472, enacted August 5, 2008, as well as the related statutes and case law, and is hereby denied without prejudice and with leave to resubmit upon proper papers, for failure to submit proper evidentiary proof, including an affidavit from one with personal knowledge, of a valid indorsement of the note or assignment of the mortgage, sufficient to establish the plaintiff’s ownership of the note and mortgage at the time the action was commenced; and it is further

ORDERED that the plaintiff shall promptly serve a copy of this Order upon the defendant-homeowner(s) at all known addresses and upon all other answering defendants, via first class mail, and shall promptly file the affidavit(s) of such service with the County Clerk and annex a copy of this Order and the affidavit(s) of service as exhibits to any motion resubmitted pursuant to this Order; and it is further

ORDERED that with regard to any scheduled court conferences or future applications by the plaintiff, if the Court determines that such conferences have been attended, or such applications have been submitted, without proper regard for the applicable statutory and case law, or without regard for the required proofs delineated herein, the Court may, in its discretion, dismiss this case or deny such applications with prejudice and/or impose sanctions pursuant to 22 NYCRR §130-1, and may deny those costs and attorneys fees attendant with the filing of such future applications.

By Order dated November 24, 2009, this Court scheduled a foreclosure settlement conference for December 23, 2009, which was adjourned to February 24, 2010. The defendant-homeowner, Luddy Brito Garcia, failed to appear at both. The plaintiff now seeks a default order of reference and requests amendment of the caption to substitute a tenant in the place and stead of the “Doe” defendants. For the reasons set forth herein, the plaintiff’s application is denied.

In this foreclosure action, the plaintiff filed a summons and complaint on January 3, 2008, which essentially alleges that Ms. Garcia defaulted in her payments of a mortgage, dated August 15, 2006, in the principal amount of $411,500.00, for the premises located at 124 East 13th Street, Huntington, New York. The original lender, Sterling National Mortgage Company, Inc., purportedly indorsed the promissory note to the plaintiff prior to the commencement of this action. According to the plaintiff, this indorsement made the plaintiff the lawful holder of the note and mortgage with standing to commence the action. Although the plaintiff’s affidavit in support indicates that the “original note with a proper indorsement is [now] in the plaintiff’s possession,” the plaintiff does not prove — or even assert — that the plaintiff actually possessed the note and mortgage at the time the action was filed.

Instead, citing Mortgage Electronic Registration Systems, Inc. v Coakley, 41 AD3d 674, 838 NYS2d 622 (2d Dept 2007), the plaintiff summarily argues that because the promissory note was indorsed to the plaintiff, the mortgage passed as an incident to the note. Under the circumstances presented herein, however, the plaintiff’s reliance on Coakley is misguided. In Coakley, the record showed that the promissory note had been indorsed by the original lender to another bank, who then indorsed it in blank and ultimately transferred and tendered it to the foreclosing plaintiff. On that particular record, the court found that at the time the action was commenced, the plaintiff was the lawful holder of the promissory note and of the mortgage, which had passed as an incident to the promissory note. In this case, however, the alleged “indorsement” appears to be on a separate page from the promissory note and, in any event, is clearly undated.

New York UCC §3-202 (1) states, in pertinent part, that “[i]f the instrument is payable to order it is negotiated by delivery with any necessary indorsement” (emphasis added). In addition, UCC §3-202(2) requires that “[a]n indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof (emphasis added). Here, the purported indorsement is payable to order, but there is no evidence of delivery of the note prior to the action’s commencement. Furthermore, the alleged indorsement appears to be on a separate page, makes no specific reference to the subject note, and is, in any event, undated. As such, the so-called “indorsement” is, at best, unreliable and fails to support plaintiff’s claim that the “note and mortgage were assigned by a properly indorsed note prior to the commencement of this action” (see, Slutsky v Blooming Grove Inn, Inc., 147 AD2d 208, 542 NYS2d 721 [2d Dept 1989]). This is particularly true where, as here, the plaintiff’s affidavit in support of the motion fails to affirmatively state that the plaintiff did, in fact, possess the note and mortgage at the time the action was commenced. Without either proof of a proper written assignment of the underlying note or proper proof of the physical delivery of the note prior to the commencement of the foreclosure action, the plaintiff has failed to sufficiently show either the proper transfer of the obligation, or that the mortgage passed as an inseparable incident to the debt (see, U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]).

A plaintiff has no foundation in law or fact to foreclose upon a mortgage, unless the plaintiff has shown it has legal or equitable interest in such mortgage (Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]; Katz v East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998]). A written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action would be sufficient to transfer the obligation, and have the mortgage pass as an inseparable incident to the debt (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]). With regard to a written assignment, the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient, unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated (see, Bankers Trust Co. v Hoovis, 263 AD2d 937, 938, 694 NYS2d 245 [1999]). A retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment (Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]).

Applying this analysis to the case before this Court, a statement by the plaintiff merely indicating that the original note is in plaintiff’s possession as of the making of a motion for an order of reference is insufficient to show that the plaintiff had standing to bring the action in the first instance (Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]). Plaintiff’s failure to submit proper proof of a valid indorsement or assignment, and failure to otherwise prove that the plaintiff was the holder of the note and mortgage at the time the action was commenced, requires denial of the plaintiff’s motion for an order of reference.

This constitutes the Decision and Order of the Court.

Shhh…Anyone who has any of these named should pay close attention.

Assignment blew up in their face!

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Legal information is NOT legal advice. The material or information herein should NOT be taken as legal advice and is NOT a substitute for the assistance of a licensed advisor. I AM NOT AN ATTORNEY.

If you are facing foreclosure or have a sale date pending and you have proper legal grounds to challenge the foreclosure etc., there is a handful of strategies. You may be able to get a Temporary Restraining Order (TRO) and eventually a Preliminary Injunction.

Hopefully, there is valid grounds to halt the foreclosure sale.

Do however, be cautious NOT to file a lawsuit to simply try to delay, look at the options you have:

• Is it a lawful foreclosure?
• Are there any possible Truth In Lending Act violations?
• Is there an unaccountability of all documents required to be filed with the court?
• Was the Assignment Of Mortgage (Deed of Trust) ever recorded where applicable?
• If so, was it done timely, named exact parties with equitable rights?
• Any conflict of interest involved?
• Was the transferee engaged in fraud?
• Were you surprised to see an unknown entity that magically appeared?

Do NOT go with the mind set you are going to get a free and clear house.

Do your research before shot gunning to file a Quiet Title. Again, what are the requirements in order to have this ground? This might fire back at you.

If you are not certain of what to do next contact a knowledgeable foreclosure defense attorney. I made a list of what to look for before choosing an Attorney who understands foreclosure defense.

[ipaper docId=30727439 access_key=key-si3seeiaeqhgidqv9yh height=600 width=600 /]

Disclaimer: The information herein should not be taken as legal advice and is not a substitute for the assistance of a licensed advisor. I AM NOT AN ATTORNEY.

This Judge sees it exactly what it is:

LARRY A. JONES, J., DISSENTS (WITH SEPARATE OPINION)
LARRY A. JONES, J., DISSENTING:

{¶ 70} I respectfully dissent from my learned colleagues in the majority.
I believe there is evidence in the record to support reversal.

{¶ 71} In Wells Fargo Bank, N.A. v. Jordan, Cuyahoga App. No. 91675,
2009-Ohio-1092, this court held that Civ.R. 17 is not applicable when the
plaintiff is not the proper party to bring the case, and thus does not have
standing to do so. Id. at 21, citing Northland Ins. Co. v. Illuminating Co.,
Ashtabula App. Nos. 2002-A-0058 and 2002-A-0066, 2004-Ohio-1529, at ¶17.

{¶ 72} In Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285,
2008-Ohio-4603, Wells Fargo, the plaintiff, filed a complaint for foreclosure on
January 23, 2007. Id. at ¶2. In Byrd, as in the case at bar, Wells Fargo
stated in the complaint that it was the holder and owner of the mortgage and
the Note. Id. Wells Fargo was assigned the Note and mortgage on March 2,
2007, after the complaint had been filed. Id. at ¶3. The Byrd court
concluded, “[u]nless a party has some real interest in the subject matter of
the action, that party will lack standing to invoke the jurisdiction of the
court.” (Emphasis added.) Id. at ¶10.

{¶ 73} Here, MERS, as nominee, filed its complaint on May 21, 2004.
MERS filed an assignment on July 2, 2004, which was signed on May 26,
2004. The facts in this matter fit squarely with the facts in both the Byrd
and Jordan opinions. Byrd and Jordan held that a party must, at the time
of filing, have a bona fide interest in the litigation in order to invoke the
court’s jurisdiction. The only interest MERS had at the time of filing in this
case was its “nominee” status under the mortgage. MERS attempted to
correct this by an assignment of the Note after the date of filing the
complaint. However, MERS was never the Note holder. See, R.C.
1303.22(A); R.C. 1303.31.

{¶ 74} After the alleged assignment was signed, MERS was only a
nominal party. After the loan closed, and long before litigation commenced,
Bank One sold the loan to Fannie Mae. MERS did not bear the loss upon
default. In fact, MERS is not the beneficial owner of the Note and only
stands in the shoes as servicer. If the Property were to be sold at a sheriff’s
sale, MERS would have no right to determine the amount of the bid, nor
would it be able to take title.

{¶ 75} Appellants did not waive their right to argue standing, and
plaintiff filed the assignment after it filed the complaint. Indeed, appellee
admits that the Note was not assigned until May 26, 2004, five days after
MERS commenced suit.

{¶ 76} MERS did not maintain a bona fide interest in the real property
or litigation and is therefore not the real party in interest. Accordingly, I
would find MERS lacked standing and could not properly invoke jurisdiction.

{¶ 77} Accordingly, I would sustain appellants’ first assignment of error.

Appendix A

Appellants’ Assignments of Error:

I. “The trial court erred as a matter of law and to the prejudice of appellants in
finding that MERS maintained standing to properly invoke the trial court’s
jurisdiction.”

II. “The trial court erred as a matter of law and to the prejudice of appellants in
failing to conduct an independent review of the evidence as mandated under
Civ.R. 53 and therefore abused its discretion in adopting the magistrate’s
decision.”

III. “The trial court erred as a matter of law and to the prejudice of appellants in
granting judgment to MERS and against appellants on their counterclaims.”

IV. “The trial court erred as a matter of law and abused its discretion in its
determination of the admissibility of evidence

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Most of us can make the assumption that instead of Mr. Gaupp place we might as well enter MERS in his place right?

The real issue with the case as stated is that DBNT magically appears!  Where is the assignment from Ameriquest to *them*??  (I’d like to see the signatures on the note!)

DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee of Ameriquest Mortgage Securities, Inc., Asset-Backed Pass Through Certificates, Series 2004-X3, Under the Pooling and Servicing Agreement Dated as of September 1, 2004, Without Recourse, Plaintiff-Appellant,
v.
DAVID J. GAUPP, ALEXANDRA C. GAUPP, NATHAN PARTON and SPOUSE OF NATHAN PARTON, REBEKAH J. BARTON and SPOUSE OF REBEKAH J. BARTON, WELLS FARGO BANK, N.A., and PARTIES IN POSSESSION,, Defendants-Appellees.

No. 0-272/09-0700.

Court of Appeals of Iowa.

Filed June 30, 2010.

Matthew E. Laughlin and Sarah K. Franklin of Davis Brown Law Firm, Des Moines, for appellant.

Charles R. Hannan, IV, Council Bluffs, for appellees David J. Gaupp and Alexandra C. Gaupp.

Aaron W. Rodenburg, Council Bluffs, for appellees G&G Properties and Troy Granger.

Brian D. Nolan of Nolan, Olson & Stryker, P.C., L.L.O., Omaha, Nebraska, for appellees Wells Fargo Bank, N.A., Nathan Parton, Spouse of Nathan Parton, Rebekah J. Barton, and Spouse of Rebekah J. Barton.

Alexandra Gaupp, Council Bluffs, appellee pro se.

David Gaupp, Council Avenue, appellee pro se.

Heard by Vogel, P.J., and Potterfield and Danilson, JJ.

VOGEL, P.J.

I. Background Facts and Proceedings.

In 2002, David Gaupp and Troy Granger formed a partnership, G & G Properties. On March 23, 2002, Gaupp and Granger purchased a duplex to use as a rental home for their partnership. Charles and Betty Bowes conveyed the property to “David J. Gaupp and Troy Granger” by warranty deed, which was recorded on April 9, 2002. On July 3, 2002, Gaupp, his wife, Alexandra Gaupp, and Granger conveyed the property to “G & G Properties” by warranty deed, which was recorded on September 24, 2002.

On December 8, 2003, Gaupp borrowed $162,000 from Ameriquest Mortgage Company (Ameriquest), which was evidenced by a promissory note and signed by Gaupp individually. In spite of the fact that Gaupp was not the titleholder of the property, the note purported to be secured by a mortgage on the property showing the borrower/mortgagor as “David J. Gaupp, married,” and bearing the signatures of “David J. Gaupp” and “Alexandra C. Gaupp,”^{[ 1 ]} but the acknowledgment is only as to “David J. Gaupp” and was notarized by a Nebraska notary public. The mortgage instrument was recorded on January 8, 2004. Ameriquest subsequently sold and assigned the mortgage to Deutsche Bank National Trust Company (Deutsche Bank).

Although G & G Properties was the record titleholder of the property, the Gaupps and Granger subsequently executed two deeds regarding the property. On December 31, 2003, a “Corrected Warranty Deed” attempted to convey the property from “David J. Gaupp and Alexandra C. Gaupp” and “Troy S. Granger” to “David J. Gaupp and Alexandra C. Gaupp,” which was then recorded on January 8, 2004. On February 2, 2005, the Gaupps attempted to convey the real estate from “David J. Gaupp and Alexandra C. Gaupp” to “G & G Properties” by a quitclaim deed, which was recorded on July 28, 2005. In David Gaupp’s deposition testimony, he explained that these conveyances were done so that Granger’s name would not appear in the title, in an effort to keep Granger’s child support obligations from being a lien against the real estate.

In April 2006, G & G Properties agreed to sell the real estate. On May 5, 2006, “G & G Properties” conveyed the property to “Nathan D. Parton, a single person and Rebekah J. Barton, a single person” by warranty deed, which was recorded on May 19, 2006.^{[ 2 ]} In order to purchase the property, the Partons obtained a loan from Wells Fargo Bank, N.A. (Wells Fargo) that was secured by a mortgage on the real estate, which was recorded on May 19, 2006. G & G Properties received proceeds in the amount of $188,273.02 from the sale of the real estate.

At some point, Gaupp defaulted on the note held by Deutsche Bank. On January 30, 2007, Deutsche Bank filed a petition to foreclose its mortgage, seeking judgment in rem against the real estate in the amount of $154,147.19, plus attorney’s fees, costs, and interest, naming the Gaupps as defendants, parties in possession. On March 16, 2007, Deutsche Bank amended its petition to add the Partons and Wells Fargo as additional defendants. On November 1, 2007, the Partons filed a third-party complaint against G & G properties and Granger.

On October 21, 2008, the Partons and Wells Fargo filed a motion for summary judgment asserting that (1) the mortgage held by Deutsche Bank was invalid; and (2) the mortgage held by Deutsche Bank could not be foreclosed because the Partons were bona fide purchasers for value. On February 12, 2009, the district court issued its ruling finding that the Gaupps and Granger conveyed their interest in the property to G & G Properties on July 3, 2002, and when G & G Properties recorded the deed on September 24, 2002, it became the record titleholder. Gaupp did not have any interest in the property when he executed the mortgage in favor of Ameriquest/Deutsche Bank and after the mortgage was executed, Gaupp never obtained title to the property. G & G Properties did not convey the property to anyone prior to May 19, 2006, when the Partons purchased the property. As a result, the mortgage held by Deutsche Bank was “null and void.” The district court granted the Partons’ and Wells Fargo’s motion for summary judgment and dismissed the petition for foreclosure. Deutsche Bank appeals.

II. Standard of Review.

We review a district court’s ruling on a motion for summary judgment for correction of errors at law. Iowa R. App. P. 6.907; City of Johnston v. Christenson, 718 N.W.2d 290, 296 (Iowa 2006). Summary judgment should be granted when the entire record demonstrates there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3).

Thus, on review, we examine the record before the district court to decide whether any material fact is in dispute, and if not, whether the district court correctly applied the law. In considering the record, we view the facts in the light most favorable to the party opposing the motion for summary judgment.

Shriver v. City of Okoboji, 567 N.W.2d 397, 400 (Iowa 1997) (internal citations and quotation omitted).

III. Analysis.

Deutsche Bank asserts that the district court erred in granting the defendants’ motion for summary judgment. The parties do not dispute that at the time Gaupp executed the promissory note and mortgage, he did not hold title to the property and that G & G Properties was the record titleholder. Deutsche Bank cannot avoid the fundamental principal that a party that has no interest in a particular piece of real property cannot validly mortgage that property. See, e.g., Lee v. Lee, 207 Iowa 882, 885, 223 N.W. 888, 890 (Iowa 1929) (holding a mortgage invalid because the mortgagor had no interest in the property at the time the mortgage was given); 59 C.J.S. Mortgages § 111, at 102-03 (2009) (discussing that “[o]ne who has no ownership interest in property has no right to mortgage it” and if one does so, the mortgage creates no interest in the property). At the time Gaupp obtained the loan from Ameriquest, he did not have any interest in the property and therefore, the mortgage instrument attempting to secure the promissory note was invalid.

Deutsche Bank argues that Gaupp acquired title to the property on December 31, 2003, when the Gaupps and Granger executed the “Corrected Warranty Deed,” which Deutsche Bank further argues resulted in the mortgage becoming valid.^{[ 3 ]} However, this argument fails because Gaupp did not acquire an interest in the property when the “Corrected Warranty Deed” was executed on December 31, 2003. On July 3, 2002, the Gaupps and Granger conveyed the property to G & G Properties. After this conveyance, Gaupp had no interest in the property and could not convey the property to anyone. See Iowa Code § 557.3 (2007) (“Every conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.”). After the July 3, 2002 conveyance, only G & G Properties was able to convey title to the property. Any such attempt by Gaupp to do so would be and was invalid as he was no longer the titleholder. Therefore, the attempts by the Gaupps and Granger to convey the property on December 31, 2003, and February 2, 2005, were not valid conveyances.^{[ 4 ]} Additionally, because the invalid conveyances were outside the chain of title, they were stray deeds when recorded. See William Stoebuck and Dale Whitman, The Law of Property § 11.11 (3^rd ed. 2000) (“The term `chain of title’ is a shorthand way of describing the collection of documents which one can find by the use of the ordinary techniques of title search.”); 1 C.J.S. Abstracts of Title § 15, at 320 n.8 (2009) (“Instrument executed by owner [that] is recorded before acquisition or after relinquishment of title by owner is outside chain of title . . . .”).^{[ 5 ]} Title remained with G & G Properties from July 3, 2002 until May 5, 2006, when G & G Properties conveyed its solely held interest in the property to the Partons. Therefore the chain of title went from G & G Properties to the Partons. Gaupp did not have title to the property when he executed the mortgage instrument now held by Deutsche Bank nor did he subsequently obtain title. We affirm the district court’s findings and ruling.

AFFIRMED.

This copy provided by Leagle, Inc.

Thank you Richard Zaretsky, Esq., for putting this out for us to review!

This is rare but one can never be too certain…

Today I received a call from one of my blog readers asking me for help with a pleading he received months ago, that is now being scheduled for a hearing in August.  This is a prime example of why Strategic Defaults or just walking away from a property can be so dangerous.  The pleading is a Motion for Deficiency Judgment from a foreclosure judgment and sale that occurred but was (like most other foreclosure sales) acquired by the lender for a nominal bid.  I and many others have been writing about this forgotten liability of borrowers.

Now here is an example of just what we said would happen, happening:

How the deficiency judgment hearing proof is presented to the court is discussed in my previous article on Foreclosure Deficiency Judgments and my original Back to Basics article.  The essence is that a deficiency judgment to be issued must go through a hearing where the lender submits proof (evidence) of the value of the property. The borrower has the right to refute the values. Getting to the number works like this:

To figure get the balance of the monies the bank must go back to court to ask the court to award it a “Deficiency Judgment”.  The amount is what is in question and the amount is measured using various rules.  Let’s assume the bank bid $100.  The court is not going to say that the house was worth $100 and $324,900 is still owed.  For our assumption we will say that the property is worth $200,000 and the foreclosure judgment is for $325,000.  That means the court will ask for an appraisal of the property as of the day of the foreclosure sale and the judge will likely give it that value.  So it will be the appraisal value less the judgment amount which will equal the Deficiency Judgment.  If the appraisal is $250,000, the Deficiency Judgment would be $75,000.   Now if there was real bidding at the foreclosure sale the judge could consider that bidding and instead adopt the selling price under the competitive bidding process that occurred at the foreclosure sale.  Then the Deficiency Judgment would be the difference from the foreclosure judgment and the winning bid amount. If the competitive bid was $240,000, then the Deficiency Judgment would be $85,000.

Back to the real life person with his August hearing – we suggested that before he retain us to negotiate with the lender on the deficiency amount and terms as a possible settlement without going to court, he try it himself.  We also suggested he speak with a bankruptcy attorney as there may be some planning opportunities available for him before the judgment is entered – if the negotiations don’t work.

Remember, a money judgment – that is what a Deficiency Judgment is – gives the judgment holder broad powers to collect the money, including garnishment and attachment of assets (like bank accounts).  Fraudulent Transfer Acts in the various states will block or take back transfers made to “hide” money from creditors.  See the article at CNN Money.

Copyright 2010 Richard P. Zaretsky, Esq.

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660  RPZ99@Florida-Counsel.com – FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW – We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide!  Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com.

What I want to now know is how this happened extremely fast when there is thousands trying to work out the same? In my recent post I wrote about this controversy in which I question the validity of Deutsche Bank’s standing…

Foreclosure case against two Fla. candidates dropped

Deutsche Bank files, dismisses suit with Marco Rubio and David Rivera over mortgage

Katherine Concepcion • Staff Writer • June 28, 2010 Tallahassee.com

A 1,228-square foot home off Apalachee Parkway was the subject of recent controversy within the Florida political scene.

On June 14, the Deutsche Bank National Trust Company initiated a foreclosure filed in the Leon County Circuit Court against Marco Rubio and David Rivera, owners of the property in question. The lawsuit has since been dropped; a notice of voluntary dismissal and release of lis pendens was filed on June 23.

The Law Offices of Marshall C. Watson, who represented Deutsche Bank, declined to comment.
Rubio, former Speaker of the Florida House of Representatives, is running for the Republican seat currently occupied by George LeMieux in the U.S. Senate. Rep. Rivera, who serves District 112 of the Florida House, is campaigning as a Republican Congressional candidate in Florida’s 25th District. The two men purchased the house for $135,000 in 2005. The property is currently under contract pending sale.

Rivera delivered a cashier’s check for $9,525 to the plaintiffs on Thursday, June 17, prompting Rubio spokesperson Alex Burgos, who did not return calls for comment, to issue a statement that the men “took action right away to get this [matter] resolved.”

Court records reveal a debt of around $136,000 on the property, including late charges and accumulated interest. Mortgage payments had not been made since February because of an alleged dispute over how the adjustable rate mortgage would be calculated once the interest-only period expired.

This is not the first financial battle Rubio has been embroiled in.

During his tenure as House speaker, Rubio was questioned about his failure to disclose receiving a $135,000 home-equity loan, and charging $16,000 in personal expenses, including grocery bills and car repairs, to a Florida GOP credit card.

Continue reading …

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RELATED STORY:

US Senate candidate MARCO RUBIO Facing Foreclosure…NOT SO FAST, Lets TAKE A LOOK!

FL BROWARD COUNTY very own DJSP aka TOP FORECLOSURE FIRM Law Office of David J. Stern has alleged to have unloaded OVER 28% shares as it tanked!

CINCINNATI, Jun 14, 2010 (GlobeNewswire via COMTEX) — Attorney Advertising

The class action law firm of Statman, Harris & Eyrich, LLC announced today that it is investigating DJSP Enterprises, Inc. (“DJSP” or the “Company”) (DJSP 6.29, +0.04, +0.64%) for potential violations of state and federal securities laws. The affected stock was purchased between March 11, 2010 and May 27, 2010.

The firm’s investigation was triggered on May 27, 2010, when DJSP announced its operating results for the first quarter 2010. DJSP revealed that the Company would be unable to meet its earnings estimates and revised its earnings guidance from $1.83 to $1.29-1.36 EPS.

As a direct result, on May 28, 2010, DJSP’s stock fell to $6.38 per share, a decline of over 28% on unusually high trading volume.

Shareholders who purchased DJSP stock between March 11, 2010 and May 27, 2010 may have a claim against the Company and are encouraged to contact attorney Melinda Nenning at (513) 658-8867 or mnenning@statmanharris.com for further information without any obligation or cost to you.

Statman, Harris & Eyrich, LLC has offices in Chicago, Illinois; Cincinnati, Ohio; and Dayton, Ohio. www.statmanharris.com

This news release was distributed by GlobeNewswire, www.globenewswire.com

SOURCE: Statman, Harris & Eyrich, LLC

CONTACT:  Statman, Harris & Eyrich, LLC
Melinda S. Nenning, Esq.
(513) 658-8867
Toll-Free: (888) 876-7881
mnenning@statmanharris.com
441 Vine Street, Suite 3700
Cincinnati, Ohio 45202

(C) Copyright 2010 GlobeNewswire, Inc. All rights reserved.

By Steve Eder and Matthew Goldstein

NEW YORK (Reuters) – An Australian hedge fund is suing Goldman Sachs Group Inc over an investment in a subprime mortgage-linked security that contributed to the fund’s demise in 2007.

The lawsuit filed on Wednesday accuses Goldman of misrepresenting the value of the notorious Timberwolf collateralized debt obligation, which garnered a lot of attention during a recent congressional hearing.

Basis Yield Alpha Fund sued Goldman to recoup the $56 million it lost on the CDO, said Eric Lewis, a Washington-based lawyer for the fund. The suit also seeks $1 billion in punitive damages.

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