District Court of Appeal of Florida, Third District
Juan Luis Guerrero and Patricia Guerrero, Appellants,
v.
Chase Home Finance, LLC., Appellee.
No. 3D11-1404.
Opinion filed March 21, 2012.
An Appeal from the Circuit Court for Miami-Dade County, Eugene J. Fierro, Judge.
Carrillo & Carrillo and Felix R. Carrillo, for appellants.
Marshall C. Watson and Robert R. Edwards, (Ft. Lauderdale), for appellee.
Before WELLS, C.J., and RAMIREZ, and LAGOA, JJ.
WELLS, Chief Judge.
Juan Luis Guerrero and Patricia Guerrero appeal from a final judgment of foreclosure complaining of a number of technical deficiencies in the record below. Faced with a record that may best be described as a “mess,” we conclude that at least one of these “technicalities” mandates reversal.
This action was commenced by Chase Home Finance, LLC as the “present designated holder of [a] note and mortgage” executed by the Guerreros. Copies of the promissory note at issue in the amount of $316,000 made payable to Freedom Mortgage Corporation and the mortgage securing that note in favor of “`MERS’ [Mortgage Electronic Registration Systems, Inc.] . . . acting solely as a nominee for Lender and Lender’s successors and assigns,” were attached to the complaint.1 The Guerreros filed their Answer and Affirmative Defenses, admitting to entering into the loan and to defaulting, but indicating they were without knowledge of the relationship between Chase and the original lender, and demanding “strict proof thereof.”
On April 27, 2011, this matter came on for trial. When the proceedings began, Chase’s counsel informed the court that the original note and mortgage at issue could not be located but that his law firm’s records custodian was present with an affidavit regarding these lost documents. The Guerreros objected arguing that no lost note claim had been alleged. The court reserved ruling on the Guerreros’ objection and proceeded to take testimony on the foreclosure claim.
As to this claim, Chase called a representative from IBM, Lender Business Process Services Company, who testified that IBM was now the servicing agent for Fannie Mae, the most recent assignee of the Guerrero note and mortgage. According to this witness, because no payments had been made by the Guerreros since August 1, 2007 on the $316,000 note and mortgage at issue, the Guerreros were in default thereby entitling Chase/IBM/Fannie Mae (for convenience “Chase” throughout) to a foreclosure judgment.
The second witness called by Chase was the records custodian/document supervisor at the law firm now representing Chase in the foreclosure action. The Guerreros promptly objected to this witness because he was not listed on Chase’s witness list. When Chase’s counsel advised the court that this witness was going to testify that the mortgage and note were missing for the purpose of reestablishing them, the Guerreros objected again, arguing that “there is no lost note count.”
At this juncture, Chase’s counsel asked the court to permit it to amend its pleadings to conform to the evidence it was going to present, to which the court responded:
THE COURT: That we would do at the conclusion of the case, not as a preemptive motion.
The records custodian was permitted to testify.
According to this witness, the original note and mortgage had been delivered to the law firm where he worked (the firm representing Chase) and had been placed in a limited access safe. He also testified that despite these precautions, when he went to look for the mortgage and note the day before the trial began, they were not in the safe and search as he might he had not been able to locate them.
In conjunction with this testimony, this witness proffered an affidavit in which he represented that “[Chase] . . . holds the Defend[ants] obligor (s) of the note harmless and agrees to indemnify them from any loss they may incur by reason of a claim by any other person/entity to enforce the lost note.” However, on cross examination the witness admitted that he neither knew what this representation meant nor knew if Chase (much less IBM/Fannie Mae) agreed to it:
Q. [BY COUNSEL FOR CHASE]: Is it true that, according to this affidavit . . . the plaintiff is willing to indemnify . . . ?
A. I’m not sure what you mean by that.
. . . .
THE COURT: Counselor’s cross examination was getting right to the heart of it. If this note is found, and after this proceeding . . . would the plaintiff be in a position to indemnify anybody for that note that was lost, now found? . . .
[A.]: I apologize, I’m not sure what the word “indemnify” means.
. . . .
Q. [BY COUNSEL FOR THE GUERREROS]: By the way, are you authorized to indemnify the defendants by the servicer or the holder of this note? Can you make that statement in this courtroom?
A. Again, I don’t really understand exactly.
. . . .
Q. Did you understand what you were signing?
A. I understood the parts about the — that have to do with the searches that we did and when the notes came in. I guess my answer is, No. [This statement] is not completely understood.
The affidavit was stricken. There was no other testimony on the subject of indemnification.
At the close of the testimony, the Guerreros unsuccessfully requested entry of judgment in their favor claiming that Chase could not prevail (1) because Chase could not surrender the original mortgage and note and (2) because Chase could not reestablish the mortgage and note without having asserted a lost note claim and without having introduced sufficient evidence to satisfy the requirements of such a claim. See § 673.3091 (2), Fla. Stat. (2010) (stating “[t]he court may not enter judgment in favor of the person seeking enforcement [of a lost, destroyed, or stolen instrument] unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument”). A final judgment of foreclosure nonetheless was entered.
The Guerreros repeat the same arguments they made below here. We agree with their argument that in this case no foreclosure could be ordered unless the mortgage and note were reestablished. See Emerald Plaza West v. Salter, 466 So.2d 1129, 1129 (Fla. 3d DCA 1985) (“Agreeing with appellant that the trial court erred in granting foreclosure of a mortgage without requiring either production of the original promissory note and assignment of mortgage or reestablishment of those documents.”) (Citations omitted). We cannot, however, agree that the court below was without authority to allow Chase to amend to assert a lost note claim. While it is well established that a trial court lacks jurisdiction to adjudicate matters outside the pleadings, Rule 1.190(b) of the Florida Rules of Civil Procedure expressly authorizes amendments to conform to the evidence when an unpled matter has been tried—even over objection—when “the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.” Fla. R. Civ. P. 1.190(b); Instituto Partiotico Y Docente San Carlos, Inc. v Cuban Am. Nat’l Found., 667 So.2d 490,492 (Fla. 3d DCA 1996) (“[T]he law in Florida is well established that a trial court lacks jurisdiction to entertain and adjudge matters which have not been the subject of proper pleadings and notice.”); see also Cortina v. Cortina, 98 So.2d 334, 337 (Fla. 1957) (same); Freshwater v. Vetter, 511 So.2d 1114, 1115 (Fla. 2d DCA 1987) (same).
The sole purpose of the instant action was to foreclose a mortgage securing a promissory note (copies of which were attached to the complaint) on which the Guerreros concededly had made no payment for years. The undisputed testimony was that IBM was the current servicing agent for Fannie Mae the current owner and holder of these instruments and that the Guerreros were in default. Since the evidence confirmed the current owner/holder’s entitlement to foreclose the mortgage attached to the complaint, submission of the original documents or alternatively reestablishment of them was all that remained. In light of the undisputed testimony that the originals of these documents had been received by the law firm representing Chase, stored carefully by that firm, but ultimately misplaced, we see no error in allowing Chase to amend to state a claim to reestablish these lost documents.
We cannot, however, agree that the burden of reestablishing these documents was met. Other than representations made in the records custodian’s stricken affidavit, there is no evidence that the Guerreros will be “adequately protected against loss that might occur by reason of a claim by another person to enforce the[se] instrument[s]” as required by section 673.3091 of the Florida Statutes. See § 673.3091(2), Fla. Stat. (2010)2.
We therefore reverse the final judgment of foreclosure and remand for reestablishment of the lost mortgage and note, this time on a proper pleading, naming the appropriate parties, and upon competent evidence—all of which we believe may be accomplished expeditiously. We do not, by virtue of this determination, invite frivolous claims or the addition of frivolous defenses and do not preclude imposition of sanctions authorized by section 57.105 of the Florida Statutes, as a consequence of same, if appropriate.
Reversed and remanded with instructions.
Not final until disposition of timely filed motion for rehearing.
When the banks get trapped and can’t get out of the hole, all they have to do is rely on MERS because 20,000+ Certified robo-signers Officers can sign, assign, release, satisfy any paperwork they want!
BTW, Whitney K. Cook is an employee of Chase Home Finance, located in Franklin County, OH.
My San Antonio-
In a strange twist in the ongoing saga of shoddy recordkeeping surrounding mortgage documents, Chase bank last month sued a San Antonio couple because they were mistakenly released from having to make any more house payments — nine years ago.
Chase filed suit in U.S. District Court in San Antonio last month against Ramiro and Delia Guerrero Jr. to rescind a mortgage-lien release recorded in 2002. The bank also wants the mortgage declared valid so the couple will have to resume making payments.
Once you read the allegations in the cases included in this post, I strongly suspect you will agree that the “ruining lives” in the headline is not an exaggeration. And as important, these two cases, with very similar fact sets, also suggest that these abuses are not mere “mistakes”. These are clearly well established practices that Chase can’t be bothered to clean up, since cleaning them up costs money and letting them continue is more profitable.
Both cases took place in Alabama. In both cases, the borrowers had made every mortgage payment on time. One was a couple with three children, the Barnetts. The second is a widow, Besty Barlow, but her husband was still alive when this ugly saga started.
Recent operational risk downgrades of various mega-servicers of securitized residential mortgage loans by Fitch Ratings indicate the agency is staying true to its resolution to start a new era in mortgage banking evaluations. It appears to involve more frequent updates of rating criteria.
Diane Pendley, Fitch’s managing director, told this publication the agency’s ratings program is “emphasizing the higher expected levels of performance for servicers” based on developing best practices and proposed new regulation. It is the second expansive downgrade since November 2010 when Fitch assigned a negative outlook to the U.S. residential mortgage servicer sector.
This month Fitch downgraded the RMBS servicer ratings of Bank of America, CitiMortgage Inc., MetLife Bank, PNC Bank, Suntrust Mortgage Inc., Wells Fargo Bank, BAC Home Loans Servicing and Chase Home Finance.
ANTHONY PIZZUTO, Plaintiff,
v.
ALLAN SORIANO; WELLS FARGO BANK, NATIONAL ASSOCIATION; BENEFICIAL HOMEOWNER SERVICE CORPORATION; CHASE HOME FINANCE, L.L.C.; VIRGINIA ADAMS; and RICHARD ADAMS, Defendants.
No. 101892/09, Motion No. 2.
Supreme Court, Richmond County.
May 5, 2011.
Excerpt:
Helena Soriano first encumbered the subject property in the amount of $20,000.00 on August 26, 1999. This first mortgage was made to Beneficial Homeowner Service, Corp. [“Beneficial”]. On April 11, 2007, Helena Soriano obtained a second mortgage of $289,000.00 from Ameripath Mortgage Corporation {“Ameripath”) with the Mortgage Electronic Registration Systems, Inc (“MERS”) acting as the servicer of the mortgage. On August 28, 2008, this mortgage was assigned to Wells Fargo. Chase is either servicing Wells Fargo’s mortgage, or has acquired unrecorded assignment of the mortgage.
[…]
Therefore, summary judgment must not be granted to the non-defaulting defendants.
Accordingly, it is hereby:
ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to vacate the default judgment granted in favor of the plaintiff, Anthony Pizzuto, is denied; and it is further
ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to vacate the settlement order granted to Anthony Pizzuto on July 13, 2010 is denied; and it is further
ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to reargue the default judgment granted in favor of the plaintiff, Anthony Pizzuto, is denied; and it is further
ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to defer the referral specified in the settlement order granted to Anthony Pizzuto on July 13, 2010 is denied; and it is further
ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to dismiss the complaint by Anthony Pizzuto is denied; and it is further
ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause seeking summary judgment against Anthony Pizzuto is denied; and it is further
ORDERED, that the reference to the previously appointed Referee proceed as directed in the settlement order of July 13, 2010.
Keller Rohrback’s investigation focuses on alleged abuses by Bank of America and JPMorgan Chase, among others, such as: failing to pay for hazard insurance out of the borrower’s escrow funds, charging homeowners for unnecessary insurance, backdating policies providing coverage retroactively, utilizing their own subsidiaries to provide the hazard insurance, and purchasing policies from companies who share fees or profits with the servicers—often without disclosing this information to the borrower. Keller Rohrback is also investigating the force-placed insurance practices of the following mortgage loan servicers:
The Federal Home Loan Mortgage Corp. was sued by Florida attorney David Stern, who claims he is owed $1.3 million for legal services, according to a complaint filed today.
The government-run mortgage company breached its contract with Stern’s law firm by failing to pay, according to the complaint filed in federal court in Miami.
JPMORGAN CHASE BANK, as Trustee )
on Behalf of the Registered Certificate Holders )
of GSAMP Trust 2004-SEA2, Mortgage )
Pass-Through Certificates, Series 2004-SEA2,
Excerpt:
The Kafkaesque character of this litigation is difficult to deny. Having failed to receive a summons that may have been improperly served upon them, Marilyn and Michael Elliott learned that a default judgment had been entered against them, foreclosing on their home because of a mortgage that was allegedly in default. The home was sold in a sheriff?s sale to the lending bank. Feeling confused and suspicious, they turned to the Indiana Attorney General, who directed them to file a complaint with the Comptroller of the Currency. The Comptroller?s investigation revealed that Chase Bank, the ostensible plaintiff herein, is entirely unaware of the foreclosure proceeding. Moreover, Chase?s records show that the mortgage was paid in full in 2001. Chase, therefore, executed and recorded a satisfaction of mortgage. Notwithstanding the satisfaction of mortgage, Chase?s loan servicer—Ocwen Bank—continued to prosecute this action in Chase?s name, attempting to force the Elliotts out of their home even though there has never been a trial and the lending bank has declared that the mortgage was paid in full. Finding this situation untenable, we reverse and remand for trial.
Appellants-defendants Marilyn L. Elliott and Michael S. Elliott appeal the trial court?s order denying their motion for relief from judgment on the foreclosure complaint of JPMorgan Chase Bank (Chase). The Elliotts raise two issues, one of which we find dispositive: that they are entitled to relief from judgment pursuant to Trial Rule 60(B) because, during the pendency of this litigation, Chase executed and recorded a satisfaction of the mortgage. Finding that the Elliotts are entitled to relief from judgment, we reverse and remand for trial.
The lenders are GMAC Mortgage LLC, U.S. Bank, MetLife Bank, Space Coast Credit Union, Chase Home Finance LLC, Ocwen Loan Servicing, Nationstar Mortgage LLC and PNC Bank.
This doesn’t add up because there are others missing. As soon as the rest of the parties such as Wells Fargo, Bank of America, Aurora, Fannie and Freddie come up (if they do) in a lawsuit, we’ll get to see a bit more of what is really going on.
Chase specifically and purposely disregards the Bankruptcy Code and, through false, fraudulent, misleading and undocumented Proofs of Claim, illegally collects or attempts to collect amounts from debtor that Chase cannot document and/or are not actually owed. Defendant’s routine and persistent filing of undocumented and false Proofs of Claim is an abuse of process and is in violation of the Bankruptcy Code and Rules.
In submitting any future orders of reference said application shall include an affidavit from plaintiff indicating whether this loan is subject to a H.A.M.P. review and whether plaintiff is or is not prevented from proceeding with the instant foreclosure by reason of any applicable federal H.A.M.P. directives.
RE: Emergent Amendments to Rules 1:5-6, 4:64-1 and 4:64-2
In light of irregularities in the residential foreclosure practice as reported in sworn deposition testimony in New Jersey and other states, the Court has adopted, on an emergent basis, amendments to Rules 1:5-6, 4:64-1 and 4:64-2. These amendments are effective December 20, 2010. The new rule and the amendments, along with the Order adopting them, appear with this notice. The Court’s Order also contains directions for counsel in pending uncontested residential foreclosure cases.
Ally Financial/GMAC Bank of America Citibank JP Morgan Chase OneWest Bank Wells Fargo Bank
Action Date: December 20, 2010 Location: Mercer County, NJ
New Jersey State Supreme Court Chief Justice Stuart Rabner entered an order To Show Cause “In The Matter of Residential Mortgage Foreclosure Pleadings and Document Irregularities” in Civil Action No. F-059553-10, Superior Court of New Jersey, Chancery Division, General Equity Part, Mercer County on December 20, 2010. Six mortgage servicing companies and their bank-owners were ordered to show cause why the Court should not suspend their rights to foreclose.
First on the list was Ally Financial, formerly known as GMAC. Ally/GMAC is the employer of Jeffrey Stephan who was exposed as one of many “robo-signers” – a phrase indicating that an employee signed thousands of documents used in foreclosure cases with no idea of the truth of the matters asserted in the documents, and more often than not, without even having read what was signed.
Stephan signed thousands of Affidavits, but he signed tens of thousands of Mortgage Assignments – the documents used by mortgage-backed trusts to show that the trusts acquired the mortgages at issue and have the right to foreclose.
Stephan signed these Mortgage Assignments for many different mortgage-backed trusts. Over 50 RALI (Residential Accredit Loans, Inc.) Trusts relied almost exclusively on Mortgage Assignments signed by Stephan. Over 44 RAMP (Residential Asset Mortgage Products) Trusts also used Assignments churned out by Stephan. At least 20 RASC (Residential Asset Securities Corp.) Trusts used Stephan assignments almost exclusively in foreclosures. At least 40 other mortgage-backed trusts, including certain Aames Mortgage Investment Trusts, certain Bear Stearns Trusts and certain Harborview Trusts all relied on Ally/GMAC’s Stephan for proof of their right to foreclose.
These trusts needed the Stephan-made assignments because the trusts’ depositors, sponsors, trustees and document custodians failed to obtain the critical documents, including notes and assignments, at the inception of the trust – despite promises to investors and regulators that these documents had been obtained and were being safeguarded.
In Florida, Stephan’s name appears on thousands of Mortgage Assignments, most often on documents prepared by the Law Offices of David Stern, who is under investigation by the Florida Attorney General. In almost every case, Stephans signed as a Vice President of Mortgage Electronic Registration Systems.
According to the Stephan documents, the trusts almost always acquired these mortgages AFTER they were already in default, and often AFTER foreclosure proceedings had been initiated.
Many different banks, in their capacity as Trustees for mortgage-backed trusts, used Stephan Assignments, but Stephan documents were most often used by Deutsche Bank Trust Company Americas, Bank of NY Mellon and U.S. Bank.
Assuming that each trust has mortgage loans with a face value of one billion dollars – and that over 200 trusts are involved, the amount in controversy is staggering.
Also disturbing is the number of Assignments on Stephan/Stern documents where the assignee trust is unidentified. The Stephan/Stern team repeatedly prepared and filed Assignments where only the Trustees – and not the trusts themselves – were identified as the new owners of the mortgages. “U.S. Bank as Trustee” and “Deutsche Bank Trust Company Americas as Trustee” are the new owners of thousands of mortgages.
Stephan often wrongly stated his own job title, the date the assignment to the trusts took place, and the identity of the trusts. Stephan’s conduct – and the documents he produced – will not stand up to the most superficial examination. Chief Justice Rabner seems determined to dig much deeper.
The other five companies named by Chief Justice Rabner have the very same problems, having produced hundreds of thousands of flawed loan documents for mortgage-backed trusts, signed by individuals with very limited knowledge or authority. Their role was to sign their names without questioning or understanding what they signed.
According to Chief Justice Rabner, the next step may be the Appointment of a Special Master “to inquire into and report to the court on the extent of irregularities concerning affidavits, certifications, assignments and other documents from time to time filed with the court in residential mortgage foreclosure actions…” Past and present business practices would be examined and the Master could also consider whether sanctions should be imposed…and a suggested formula to determine an appropriate sanction.”
By his Order, Chief Justice Rabner gave hope to hundreds of thousands of victims of fraud by securities companies, banks, mortgage companies and mortgage servicing companies.
The nature of the problem calls for a balancing of the court’s supervisory and adjudicatory roles and responsibilities. The court has therefore established the procedure in this Order to address the pressing needs of the Office of Foreclosure while providing due process to affected parties. The court will direct that the six Foreclosure Plaintiff’s named on this order show cause at a hearing scheduled for January 19, 2011, why the court should not suspend the processing of all foreclosures matters involving the six Foreclosure Plaintiffs and appoint Special Masters to review their past and proposed foreclosure practices.
On November 28, 2007, several months after this Court scheduled an evidentiary hearing and directed Chase Home Finance to submit the Policy Affidavit, a letter was filed on the Court docket in this case addressed to the Clerk of the Court from a legal assistant acting on behalf of “Pillar Processing, LLC,” an entity unknown to the Court that appeared to have no connection with this case or these Debtors. The letter stated:
Dear Sir or Madam:
Respecting captioned bankruptcy matter, please be advised that the 362 motion scheduled for December 7, 2007, at 10:30am [sic] has been
withdrawn.
Very Truly Yours,
PILLAR PROCESSING, LLC.
By: Robin L. Brown
Legal Assistant
ECF Docket No. 23. Though no relationship was identified or explained in the body or
letterhead, Pillar Processing and Chase Home Finance’s bankruptcy counsel, Steven J.
Baum, P.C., share the same address and telephone number, and ECF reflects that the
letter was filed using a password issued to “Dennis Jose [a Steven J. Baum, P.C. attorney]
on behalf of CHASE HOME FINANCE, LLC.” Chase Home Finance’s bankruptcy
counsel, Steven J. Baum, P.C., has made no effort to address or explain this act, or the
propriety of this action on the record.
<SNIPS>
Finally, the Attorney Affirmation made no effort to explain the relationship between the Steven J.
Baum, P.C. law firm and Pillar Processing, LLC, the non-legal entity that attempted to
withdraw the Lift-Stay Motion.
<SNIP>
The Court will issue a separate order denying the Lift-Stay motion and directing
that neither Chase Home Finance, the current holder or owner of the note and mortgage,
nor any of their successors-in-interest shall in any way seek or charge any attorneys’ fees
or other charges against Debtors, their property, or the mortgage, whether now or at the
end of the mortgage, if such fees or charges are in any manner connected with the Lift-
Stay Motion, the Order to Show Cause, or the Evidentiary Hearing.
This decision is published as a warning, not just to Chase Home Finance and
other mortgage servicers, but to all individuals and entities involved in the process, along
the line – analysts, supervisors and other personnel employed by mortgage servicers;
third-party vendors; regional law firms; and local counsel – that the conduct identified
here, in this Court’s view, constitutes an abuse of process. Although the Court’s focus in
this case was on the mortgage servicer’s conduct and did not order all of the participants
to appear and respond to this Order to Show Cause, they will be included in future orders
if such abusive conduct continues, and the Court will assume familiarity with this
decision.
The Lift-Stay motion, which originated with a notation on an analyst’s computer
screen, has generated a 60-page decision and stress on the Debtors for the nine-month
period that the Lift-Stay Motion was pending. The Court is not compensated according
to time spent on a particular case, but this Order to Show Cause has drawn time and
resources away from other, meritorious cases. Judicial resources do not permit such a
thorough examination of every case. This decision sanctions Chase Home Finance only
for the actual costs incurred by the Debtors. In the Court’s view, the sanction is an
extremely mild one, because the Supreme Court instructs that a bankruptcy court should
exercise its Section 105 powers with restraint and discretion. The Court does not regard
the exercise of restraint in this case to be a limitation on the sanctions that might be
imposed in the future against Chase Home Finance or another mortgage servicer if this
abuse occurs again. If Chase Home Finance, other mortgage servicers and any
employees, third-party vendors, or any attorneys involved in the process at any level
exhibit the same type of abusive conduct in the future, this Court believes that Section
105(a) authorizes sanctions of increasing severity.
Dated: Poughkeepsie, New York
April 10, 2008
/s/ Cecelia Morris .
. CECELIA G. MORRIS
UNITED STATES BANKRUPTCY JUDGE
2010 NY Slip Op 52082(U)
Decided on December 1, 2010
Supreme Court, Suffolk County
Spinner, J.
The issue of the claim of the forbearance/modification agreement, however, is an entirely different situation, one that is considerably troubling to this Court. Defendants assert (and Plaintiff does not in any way controvert) that on April 17, 2009, without the benefit of counsel, they executed a three page document entitled “Home Affordable Modification Trial Period Plan” which was propounded to them by Plaintiff. Indeed, a copy of the same is appended as Exhibit C to the Affidavit of Thomas E. Reardon. According to Defendants (and again, not controverted by Plaintiff), they timely remitted to Plaintiff the three payments of $ 1,736.00 required thereunder and in compliance therewith, followed with nine more monthly payments in the same amount. According to Defendants (and once again, not controverted by Plaintiff), they continued to send monthly payments of $ 1,736.00, doing so in compliance with a letter from Plaintiff’s servicer Chase Home Finance LLC dated June 1, 2009 and appended to their Order To Show Cause. In relevant part, this letter states, in bold face type, as follows;
“If you make all [3] trial period payments on time and comply with all applicable program guidelines, you will have qualified for a final modification. However, there may be a period of time between your last trial payment and your first modification payment as we finalize the documents and get them back from you. During that interval, you should make a continuation payment at the trial period amount, and an extra coupon has been provided for that purpose.That payment will be applied as a principal reduction payment on your loan after your final modification is effective.”
It is undisputed that Defendants sent thirteen payments to Chase Home Finance LLC totalling $ 22,568.00 in reliance upon both the aforementioned April 17, 2009 Trial Modification and the subsequent June 1, 2009 letter and further, that the same were accepted by Plaintiff, presumably under the terms and conditions dictated by Plaintiff. According to Defendants, they regularly inquired as to the status of the final modification and were variously informed that all documents had been received, the application was with underwriting and finally, underwriter had approved the final modification. Notwithstanding the continuing stream of payments from Defendants and the verbal representations made to them, Chase Home Finance LLC, by letter dated April 15, 2010 (two days shy of one year following execution of the Trial Modification) notified Defendants that a loan [*3]modification would not be offered to them due to their inability to meet the existing guidelines therefor. The reason stated for the denial was the inability to meet HAMP guidelines by modifying the payments to equal 31% of Defendants’ gross monthly income.
In opposition to the foregoing, the Affidavit of Thomas E. Reardon, Assistant Vice-President of Chase Home Finance LLC (Plaintiff’s servicing agent), plainly acknowledges the foregoing assertions by Defendants but states, in Paragraph 7, that “…Due to a combination of factors, however, including missing documents, the submission of stale financial data and a significant influx of Trial Plan applications, the Mathons’ Trial Plan was not reviewed by the underwriting department until on or about April 2, 2010.” The Affidavit does state that on June 30, 2010 the Mathons applied for a new modification but that they failed to supply all necessary documents for consideration. However, nowhere in Plaintiff’s submissions to this Court is there any substantiation of this claim nor is the issue of Defendants’ payments addressed. Too, there is no proof of any computation or other calculation explaining the basis for denial herein.
In further opposition to Defendants’ motion, Plaintiff has submitted the Affidavit of Adam M. Marshall Esq., an associate in the firm of Cullen & Dykman LLP. Mr. Marshall states under oath, in Paragraph 9 thereof, that “Since the Mathons moved by Order to Show Cause to stay the foreclosure on August 12, 2010, further efforts have been made to provide the Mathons with a loan modification based on verifiable income. On October 12, 2010, Plaintiff withdrew its Motion for Judgment of Foreclosure and Sale. In addition, a new application for a loan modification was forwarded to the Mathons. However, the Mathons have abjectly refused to complete the application or supply the financial documents requested therein.” This Affidavit by counsel seems to be somewhat at odds with the averments of Mr. Reardon and is amply rebutted by Defendants’ motion papers. Defendants have appended a plethora of documents dating from April 30, 2010 through July 28, 2010 evidencing their application for a new modification (which appears to be a HAMP modification identical to the one that Plaintiff had just rejected) as well as their cooperation with the demands of Plaintiff regarding the same. Even so, while Defendants were assiduously attempting to re-negotiate a modification, Plaintiff was instructing its counsel to continue prosecution of the foreclosure action. It is painfully obvious to this Court that Defendants relied upon representations made by Plaintiff and acted affirmatively based upon those representations, all to their serious detriment.
There has been no disclosure by Plaintiff to this Court as to whether or not this loan in foreclosure is deemed to be “sub-prime” or “high cost” in nature. Moreover, no mandatory settlement conference has been held in this matter though same is plainly required pursuant to CPLR § 3408.
SFF has posted numerous court orders involving this firm and nothing has come about the fraud they are submitting and swearing to under oath. Shocking.
Lets set aside that these are FORECLOSURES for a second…T h e s e a r e o f f i c e r s o f t h e c o u r t [PERIOD END OF STORY], intentionally submitting bogus, fraudulent documents even after they were made aware of new filing requirements.
“We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs–such as a family home–during this period of economic crisis,” said New York State Chief Judge Jonathan Lippman in a statement.
Judge Melvyn Tanenbaum suspends the following cases
Excerpt:
This Court has repeatedly directed plaintiffs counsel to submit proposed orders of reference
and judgments of foreclosure in proper form and counsel has continuously failed to do so. The Court
provided counsel’s office directly with copies of orders and judgments which would satisfy the
requirements and counsel has responded by submitting correspondence addressed to the Court from
non-attorney employees with improper and inadequate submissions. The Court deems plaintiffs
counsel’s actions to be an intentional failure to comply with the directions of the Court and a
dereliction of professional responsibility. Accordingly it is…
Continue to the Orders All The Way Down…
.
Another 18 reasons why an Investigation should be in order…some of us are keeping track and trust me there is many more!
SUPREME COURT – STATE OF NEW YORK
IAS PART 10 – SUFFOLK COUNTY
HON. JOHN J.J. JONES, JR.
CHASE HOME FINANCE
v.
LUCIUS D. PAGANO
In addition, and notwithstanding the plaintiffs failure to establish compliance with paragraph 22 of the mortgage, there are two [2] other issues that must be addressed on any renewed application herein. The first issue is the legal effect of the allonge that is attached to the promissory note dated Oct. 18, 2005. This allonge clearly states that the note was endorsed by United Mortgage Corp. to the order of Greenpoint Mortgage Funding, Inc. The plaintiff’s application fails to address the fact of this clear and unequivocal endorsement of the note to Greenpoint. The second issue that the plaintiff needs to address is the execution of the mortgage assignment on Dec. 15,2009 by M.E.R.S to the plaintiff, Chase Home Mortgage. The assignment was executed by George Schmergel, on behalf of M.E.R.S. It appears that this person is also the plaintiffs attorney.Therefore, on any renewed application, the plaintiff shall set forth an explanation of the apparent dual role of counsel.
This constitutes the decision and order of the court in the disposition of this exparte application
for an order of reference, which is to be marked “not signed”.
-X
At least two officials who signed documents indicating that they had reviewed the accuracy of thousands of foreclosure proceedings have testified in sworn depositions that they didn’t actually perform at least some of the reviews.
If you have documents signed by either of the officials – Ally Financial’s Jeffrey Stephan or Chase Home Finance’s Beth Ann Cottrell — or were involved in a foreclosure whose documentation they reviewed, we’d like to know about it as we continue to report on the foreclosure legal issues.
Do you think your foreclosure documents may have been processed by Stephan or Cottrell? If you have a copy of a foreclosure document signed by Stephan or Cottrell, please post it here. Or send us information on your foreclosure using the form below.
The yellow in the picture represents all the hard work and sweat Mr. Nguyen encountered for this victory.
Quiet Title, Rescission and Damages, and Unfair Business Practices
JUDGMENT
1. This Court has jurisdiction over the subject matter of this case and over the Defendants.
2. Venue as to the Defendants in the Central District of California is proper.
3. Default judgment is hereby entered against Chase Bank USA, N.A. and Chase Home Finance, LLC and in favor of Plaintiffs Paul Nguyen and Laura Nguyen on all claims in Plaintiffs’ SecondAmended Complaint.
4. IT IS THEREFORE ORDERED that the Deed of Trust recorded with Orange County Recorder as instrument No. 2007000731120 on 12/12/2007 is wholly voided as to plaintiff Laura Nguyen.
5. IT IS FURTHER ORDERED that Defendant First American Loanstar Trustee Services record a DEED OF RECONVEYANCE to reconvey unto Plaintiffs thereto all right, title and interest which was heretofore acquired by First American Loanstar Trustee Services under deed of trust recorded with Orange County Recorder as instrument No. 2007000731120 on 12/12/2007.
6. IT IS FURTHER ORDERED that all adverse claims against property known as 16141 Quartz Street, Westminster, CA 92683 are quieted.
The legal description of said property is:
LOT 44 TRACT NO. 8977, IN THE CITY OF WESTMINSTER, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 369, PAGE(S) 46 AND 47 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Assessor’s Parcel No.: 107-903-44.
7. IT IS FURTHER ORDERED that the Promissory Note dated 12/12/2007 executed by Plaintiff Paul Nguyen in favor of Chase Bank USA, N.A. rescinded pursuant to 15 U.S.C. §1635(i).
8. IT IS FURTHER ORDERED that pursuant to 15 U.S.C. §1635(b), Plaintiffs had made offer to tender the loan evidenced by promissory note dated 12/12/2007 and Defendant Chase Bank USA, N.A. did not take possession within 20 days after tender by the Plaintiffs. Therefore, ownership of the loan proceed is vested in the Plaintiffs without obligation on their part to pay for it.
9. IT IS FURTHER ORDERED that Defendant Chase Bank USA, N.A. within 20 days after entry of judgment shall return to the Plaintiffs any money or property given as earnest money, down payment, or otherwise pursuant to 15 U.S.C. §1635(b).
10. IT IS FURTHER ORDERED that Plaintiffs are awarded their costs of suit, to be paid by Defendants Chase Bank USA, N.A. and Chase Home Finance, LLC, in an amount to be determined by the Clerk of the Court.
DATED: September 15, 2010
____________________________
The Honorable A. Howard Matz
JS-6 United States District Judge
More and more Judges are finding ways to destroy the entire mortgage — a message to those “lenders” who refuse to reduce principal as settlement of the dispute.
Submitted by Max Gardner
In re: MARY BRIGID, Chapter 7, Debtor.
MARY ANN RABIN, Plaintiff,
v.
MARY BRIGID, et al., Defendants.
Case No. 08-18750.
Adversary Proceeding No. 09-1062.
United States Bankruptcy Court, N.D. Ohio.
May 21, 2010.
MEMORANDUM OF OPINION
ARTHUR I. HARRIS, Bankruptcy Judge
This matter is currently before the Court on the cross-motions for summary judgment of the plaintiff-trustee, Mary Ann Rabin, and defendant RBC Mortgage Company. At issue is whether the trustee is entitled to avoid a mortgage because the notary’s certificate of acknowledgment failed to recite the name of the party whose signature was acknowledged, notwithstanding a postpetition attempt to correct this omission. For the reasons that follow, the Court holds that the mortgage was not executed in accordance with Ohio’s statutory requirements and can be avoided by the trustee as it relates to the undivided half interest of the debtor Mary Brigid. Accordingly, the trustee’s motion for summary judgment is granted, and RBC Mortgage’s motion for summary judgment is denied.
FACTS AND PROCEDURAL BACKGROUND
Unless otherwise indicated, the following facts are not in dispute. The debtor Mary Brigid and non-debtor Susan Radbourne are joint owners of the real property located at 3000 Yorkshire Road, Cleveland Heights Ohio, 44118. The deed was recorded on September 10, 1999, and provides “Mary Brigid, unmarried and Susan M. Radbourne, unmarried remainder to the survivor of them.” On July 9, 2003, RBC Mortgage extended a loan to Radbourne. The loan was secured by a mortgage of the real property, which was recorded in the Cuyahoga County Recorder’s office, Instrument No. 20030110552 on July 11, 2003.
Page 26 of the mortgage (Docket # 38 Ex. D ) provides in pertinent part:
BY SIGNING BELOW, Borrower accepts and agrees to the terms and
covenants contained in this Security Instrument and in any riders
executed by Borrower and recorded with it.
WITNESSES:
X/s/ Brent A. White /s/ Susan M. Radbourne
Brent A. White Susan M. Radbourne — Borrower
/s/ Mary Brigid
— Borrower
STATE OF OHIO
COUNTY OF Cuyahoga
On this 9 day of July 2003 , before me, a Notary Public in and for
said County and State, personally appeared
Susan M. Radbourne Unmarried
___________________________________________________________________
the individual(s) who executed the foregoing instrument and
acknowledged that he/she/they did examine and read the same and
did sign the foregoing instrument, and that the same is
his/her/their free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Brent A. White
Notary Public
(Seal)
* * *
On November 7, 2008, the debtor filed a petition under Chapter 7 of the Bankruptcy Code (case # 08-18750). On February 5, 2009, the trustee of the Chapter 7 estate initiated this adversary proceeding seeking to avoid the mortgage of RBC Mortgage as it relates to the debtor’s half interest pursuant to section 544 of the Bankruptcy Code and to determine the interests of all parties in the property.
The complaint named as defendants Mary Brigid, Susan Radbourne, Mortgage Electronic Registration System, RBC Mortgage Company, Chase Home Finance, Huntington National Bank, the Cuyahoga County Treasurer, and the City of Cleveland Heights. The treasurer, City of Cleveland Heights, Mary Brigid, Susan Radbourne, and RBC Mortgage filed answers to the complaint. In its answer, the City of Cleveland Heights asserted a judgment lien in the amount of $1,316.80 at the rate of 5% interest from February 26, 2009, No. JL06258471. Radbourne asserted an undivided half interest in the property in question. She also brought a cross-claim for negligence against RBC Mortgage and requested a reservation of her right to purchase the real estate pursuant to Section 363(i). In its answer, RBC Mortgage asserted that the debtor held only bare legal title and that the trustee had constructive notice.
On June 4, 2009, all parties stipulated that the Cuyahoga County Treasurer has the first and best lien on the subject property for taxes and assessments. On December 27, 2009, the debtor’s deposition was taken, at which the debtor acknowledged signing the mortgage outlined above. On January 13, 2010, attorney David A. Freeburg filed an affidavit of facts regarding the acknowledgment of the mortgage by Mary Brigid. On January 14, 2010, the trustee filed a motion for summary judgment seeking to avoid the mortgage held by RBC Mortgage. On January 21, 2010, RBC Mortgage filed a cross-motion for summary judgment and a response. Briefing on the cross-motions for summary judgment is complete, and the Court is ready to rule.
JURISDICTION
Determinations of the validity, extent, or priority of liens are core proceedings under 28 U.S.C. section 157(b)(2)(K). The Court has jurisdiction over core proceedings under 28 U.S.C. sections 1334 and 157(a) and Local General Order No. 84, entered on July 16, 1984, by the United States District Court for the Northern District of Ohio.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c), as made applicable to bankruptcy proceedings by Bankruptcy Rule 7056, provides that a court shall render summary judgment, if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Under the “strong arm” clause of the Bankruptcy Code, the bankruptcy trustee has the power to avoid transfers that would be avoidable by certain hypothetical parties. See 11 U.S.C. § 544(a). Section 544 provides in pertinent part:
(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by —
Page 7
. . . .
(3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists.
11 U.S.C. §544. Any transfer under section 544 is preserved for the benefit of the estate. See 11 U.S.C. § 551.
The mortgage provides that federal law and the law of the jurisdiction in which the property is located will control. Because the real property in question is located in Ohio, the Court will apply Ohio law to determine whether the trustee can avoid the mortgages using the “strong arm” clause. See Simon v. Chase Manhattan Bank (In re Zaptocky), 250 F.3d 1020, 1024 (6th Cir. 2001) (applicable state law governs determination whether hypothetical bona fide purchaser can avoid mortgage).
Code expressly provides that a bankruptcy trustee is a bona fide purchaser regardless of actual knowledge. See In re Zaptocky, 25,0 F.3d at 1027 (“actual knowledge does not undermine [trustee’s] right to avoid a prior defectively executed mortgage.”). Because actual knowledge does not affect the trustee’s strong-arm power, the Court need only determine whether the trustee had constructive knowledge of the prior interests held by the defendant RBC Mortgage.
Ohio law provides that “an improperly executed mortgage does not put a subsequent bona fide purchaser on constructive notice.” Zaptocky, 250 F.3d at 1028. Ohio courts have refused to allow a recorded mortgage to give constructive notice when the mortgage has been executed in violation of a statute. See In re Nowak, 10,4 Ohio St. 3d 466 (2004) (listing cases). The first question, then, is whether the mortgage was executed in compliance with, or substantially conforms to applicable statutory law. A second question, if the mortgage was not executed in compliance, is whether the December 27, 2009, acknowledgment by Mary Brigid and the January 13, 2010, affidavit filed by attorney Freeburg corrected the defect. A third question, if the lien remains defective, is what interest the trustee is entitled to avoid.
The Mortgage Was Not Properly Executed in Accordance with Ohio Revised Code § 5301.01
Ohio Revised Code § 5301.01 requires four separate acts to properly execute a mortgage: (1) the mortgage shall be signed by the mortgagor; (2) the mortgagor shall acknowledge his signing in front of a notary public, or other qualified official; (3) the official shall certify the acknowledgment; and (4) the official shall subscribe his name to the certificate of acknowledgment. OHIO REV. CODE ANN. § 5301.01(A) (2004); see Drown v. GreenPoint Mortgage Funding, Inc. (In re Leahy), 376 B.R. 826, 832 (Bankr. S.D. Ohio 2007) (listing four requirements provided by Ohio Rev. Code. § 5301.01).2 At issue in this case is whether the certificate of acknowledgment, which omitted the name of Mary Brigid, satisfies the third requirement to proper execution of a mortgage.
Certification of an acknowledgment is governed by Ohio Revised Code sections 147.53-147.58. Ohio Revised Code section 147.53 provides:
The person taking an acknowledgment shall certify that:
(A) The person acknowledging appeared before him and acknowledged he executed the instrument;
(B) The person acknowledging was known to the person taking the acknowledgment, or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument.
The Ohio Revised Code further provides that a certificate of acknowledgment is acceptable in Ohio if it is in a form prescribed by the laws or regulations of Ohio or contains the words “acknowledged before me,” or their substantial equivalent. OHIO REV. CODE § 147.54. Ohio’s statutory short form acknowledgment for an individual is as follows:
State of ________
County of ________
The foregoing instrument was acknowledged before me this (date) by
(name of person acknowledged.)
(Signature of person taking acknowledgment)
(Title or rank) (Serial number, if any)
OHIO REV. CODE § 147.55(A).
The trustee argues that the mortgage was improperly recorded because the certification of acknowledgment does not conform to section 5301.01 of the Ohio Revised Code with respect to the debtor. Specifically, the trustee asserts that the clause fails to identify the name of the debtor. The Court agrees. Recent case law, including a 2008 decision from the Sixth Circuit BAP, supports the trustee’s position that an acknowledgment is defective if it fails to identify the person whose signature is being acknowledged. See In re Nolan, 38,3 B.R. 391 (6th Cir. B.A.P. 2008); In re Sauer, 41,7 B.R. 523 (Bankr. S.D. Ohio 2009); Daneman v. Nat’l City Mortg. Co. (In re Cornelius), 408 B.R. 704, 708 (Bankr. S.D. Ohio 2009) (“The absence of the name of the mortgagee acknowledging election is the functional equivalent of no certificate of acknowledgment and renders an acknowledgment insufficient.”); Drown v. Countrywide Home Loans, Inc. (In re Peed), 403 B.R. 525, 531 (Bankr. S.D. Ohio 2009) affirmed at No. 2:09cv347 (S.D. Ohio Feb. 18, 2010); Terlecky v. Countrywide Home Loans, Inc. (In re Baruch), No. 07-57212, Adv. No. 08-2069, 2009 Bankr. Lexis 608 at *22 (Bankr. S.D. Ohio Feb. 23, 2009) (“An acknowledgment clause containing nothing relative to the mortgagor’s identity is insufficient; rather, an acknowledgment clause must either identify the mortgagor by name or contain information that permits the mortgagor to be identified by reference to the mortgage.”); In re Leahy, 37,6 B.R. at 832. See also Smith’s Lessee v. Hunt, 13 Ohio 260, 269 (1844) (holding that court was unable to infer name of grantor when acknowledgment was blank as to the grantor and, thus, the mortgage was defective and did not convey title).
The holdings in Nolan, Smith’s Lessee, and similar cases are also supported by case law interpreting almost identical statutory provisions for acknowledgment clauses in Kentucky and Tennessee. See, e.g., Gregory v. Ocwen Fed. Bank (In re Biggs), 377 F.3d 515 (6th Cir. 2004) (affirming bankruptcy court’s decision avoiding deed of trust under section 544 and Tennessee law when deed of trust omitted names of acknowledging parties); Select Portfolio Servs. v. Burden (In re Trujillo), 378 B.R. 526 (6th Cir. B.A.P. 2007) (affirming bankruptcy court’s decision avoiding mortgage under section 544 and Kentucky law when debtor was not named or identified in certificate of acknowledgment).
Because RBC Mortgage conceded that at the time of execution the mortgage was defective, and because no argument was made regarding substantial compliance, this Court holds that the mortgage failed to substantially comply with the filing requirements. Therefore, the mortgage was improperly executed with respect to the debtor because the certification of acknowledgment failed to indicate who appeared before the notary public as required under Ohio Revised Code section 5301.01.
RBC Mortgage’s Attempt to Validate the Defective Mortgage via Section 5301.45 is Ineffective
The Court rejects the argument of RBC Mortgage that Ohio Revised Code section 5301.45 and Bankruptcy Code section 546(a)(1) allow it to correct a defective acknowledgment and defeat the trustee’s strong arm powers by using the debtor’s testimony taken at a deposition postpetition. First, section 5301.45 simply does not apply to any situation other than the correction of pagination of acknowledgment clauses. Second, even if section 5301.45 did apply, the postpetition acknowledgment by the debtor was not voluntary. These issues are discussed more fully below.
1. Section 5301.45 is meant as a mechanism to correct pagination only
While older versions of the statutes at issue in this case date back as early as the 1800’s, the Court begins its analysis with the 1910 version of the Ohio General Code. See THE GENERAL CODE OF THE STATE OF OHIO (The Commissioners of Public Printing of Ohio 1910) (“Being an Act entitled `An Act to revise and consolidate the general statutes of Ohio”). Section 8510 of the 1910 Ohio General Code provided:
A deed, mortgage, or lease of any estate or interest in real property, must be signed by the grantor, mortgagor, or lessor, and such signing be acknowledged by the grantor, mortgagor, or lessor in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. Such signing also must be acknowledged by the grantor,
mortgagor, or lessor before a judge of a court of record in this state, or a clerk thereof, a county auditor, county surveyor, notary public, mayor, or justice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name thereto. (Emphasis added). This 1910 statute outlined the requirements to validate a deed, mortgage, or lease, including the necessity for two witnesses and that the acknowledgment page be on the same page as the instrument, and is the precursor to Ohio Revised Code section 5301.01.
The original version of what is now Ohio Revised Code section 5301.45 is provided in Local Laws and Joint Resolutions, 57 v 10, and was titled as section 8559 of the Ohio General Code. The current version of the statute is substantially identical to its 1910 version and provides in full:
When a deed, mortgage, lease, or other instrument of writing intended to convey or encumber an interest in real estate is not printed or written on a single sheet, or when the certificate of acknowledgment thereof is not printed or written on the same sheet with the instrument, and such defective conveyance is corrected by the judgment of a court, or by the voluntary act of the parties thereto, such judgment or act shall relate back so as to be operative from the time of filing the original conveyance in the county recorder’s office.
OHIO REV. CODE § 5301.45.
Thus, the state of the law regarding the formal requirements of a valid mortgage in 1910 was that although section 8510 required the instrument and acknowledgment clause to be on the same page, section 8559 allowed for correction of this deficiency through voluntary act of the parties or judgment by the court. However, the Ohio Supreme Court held in 1939 that certificates bound to an instrument substantially complied with the statute. The Court explained that:
When the provision now found in Section 8510, General Code, was enacted, more than a hundred years ago, deeds, mortgages and leases were usually and could easily be written in their entirety on a single sheet of paper. In recent years many of such instruments are so long that to write or print them on one sheet would require a roll of paper. Often, too, the acknowledgments are so numerous as to present the same difficulty. What the Legislature sought by the enactment of the provisions now found in Section 8510 was no doubt the prevention of fraud that might be readily perpetrated if the certificate of acknowledgment were on a sheet separate from the instrument itself. With respect to the lease in litigation this danger is eliminated because the certificates are bound to the other parts by rivets so as to make a unified whole.
Noticeably missing from later versions of section 8510 (now 5301.01 of the Ohio Revised Code), is the requirement that the notary certify the acknowledgment on the same sheet as the instrument. See OHIO REV. CODE § 1.01 (“All statutes of a permanent and general nature of the state as revised and consolidated into general provisions, titles, chapters, and sections shall be known and designated as the `Revised Code'”); OHIO GENERAL CODE § 8510, OHIO REV.CODE § 5301.01. In fact, the current version of section 5301.07 specifically provides that no instrument conveying real estate is defective or invalid because “the certificate of acknowledgment is not on the same sheet of paper as the instrument.”
It appears that section 5301.45 was enacted to afford an opportunity for parties to physically affix separate pages of an instrument and an acknowledgment clause to enable substantial compliance with section 5301.01. The Ohio Jurisprudence 3d contains an analysis of the interplay between these statutes.
[Section 5301.45] assumes that the certificate of acknowledgment must be printed or written on the same sheet with the mortgage, or else the mortgage is defective; but there is now no statute specifically requiring the acknowledgment to be on the same sheet. The reason for the above provision, so far as acknowledgments are concerned, undoubtedly lies in the fact that under an earlier from of RC section 5301.01, it was required that the acknowledgment be on the same sheet of paper as that on which the conveyance was written. It seems likely that the omission from the statute in this respect was due to judicial construction of the former statute, in regard to which the courts, recognizing the ever-increasing length of instruments such as mortgages, held that the instrument was valid where the sheets were securely fastened together and a certificate of acknowledgment was on the last page. In some cases, emphasis was placed upon the sheets being so fastened together that the one bearing the certificate of acknowledgment could not be removed without showing evidence of mutilation.
69 O. Jur. 3d Mortgages § 102 (1986).
The Ohio Transaction Guide, a multi-volume set that has provided
practitioners with research tools and practice tips for over thirty years is instructive and consistent with this Court’s understanding of the intention of the statute. Section 188.30 of the Ohio Transaction Guide provides that “if a deed is not printed or written on the same sheet with the instrument, the conveyance may be corrected by the judgment of a court or by the voluntary act of the parties.” It continues by providing that “[a]lthough it is not necessary to the validity of the deed that the acknowledgment appear on the same sheet of paper as the deed, the usual practice is to convey the property with the necessary acknowledgments on the same sheet.” Thus, the original and later versions of section 5301.45 were designed as a mechanism for correcting failure to adhere to a repealed requirement of section 5301.01. This Court holds that section 5301.45 was enacted to amend mortgages and deeds where the execution and acknowledgment clauses were on separate pieces of paper, at a time in history when such documents were required to appear on the same page, and the parties wished to physically bind them together. Therefore, section 5301.45 cannot be used to correct the type of acknowledgment clause defect at issue in this case.
2. The debtor’s postpetition acknowledgment was not voluntary
Even if this Court were to find that section 5301.45 can be utilized to cure a defective mortgage certification clause under section 546(b)(1), the debtor’s postpetition acknowledgment was not voluntary. Specifically, the debtor testified at a deposition after being served with process and was required to answer questions under oath. This is not the type of voluntary behavior provided for by the statute, especially because both the deposition and “re-recording” of the mortgage took place after the trustee had initiated this adversary proceeding, and served the debtor with a summons and complaint.
In summary, this Court holds that section 5301.45 can only retroactively perfect a mortgage where the instrument and acknowledgment clause are on separate pages, the parties voluntarily act to attach those pages, and the mortgage is otherwise a validly executed document. Therefore, the Court rejects RBC Mortgage’s attempt to use section 5301.45 and the debtor’s postpetition deposition testimony to correct the type of acknowledgment clause defect at issue in this case.
The Trustee May Avoid the Debtor’s Undivided Half Interest in the Subject Property
Although it is well established that a trustee may avoid a debtor’s half interest when a mortgage is found to be valid as to one co-owner and defective as to the other co-owner, RBC Mortgage asserts that the title of the tenancy held by the debtor and Radbourne somehow mandates a different result. This Court finds that Radbourne and the debtor held the property as joint tenants, as evidenced by the deed’s use of the language to “Mary Brigid, unmarried and Susan Radbourne, unmarried, remainder to the survivor of them,” (emphasis added). Section 5302.20 provides that a deed showing a clear intent to create a joint tenancy with rights of survivorship “shall be liberally construed to do so.” OHIO REV. CODE § 5302.20. This Court finds that based on the clear reading of the deed in question, the intention of the parties was to create a joint tenancy with rights of survivorship.
Further, joint tenants hold “an equal share of the title during their joint lives unless otherwise provided in the instrument creating the survivorship tenancy.” OHIO REV. CODE § 5302.20. Although this statute provides that joint tenants are subject to a proportionate share of the costs related to ownership, it also provides that when a creditor of a survivorship tenant enforces a lien against the debtor’s interest, the interest “shall be equal unless otherwise provided in the instrument creating the survivorship tenancy.” OHIO REV. CODE § 5302.20. This proposition is supported by recent case law. In Simon v. CitiMortgage, Inc., (In re Doubov), 423 B.R. 505 (N.D. Ohio 2010), the bankruptcy trustee sought to avoid the debtor wife’s half interest in property that both spouses mortgaged as joint tenants. The trustee argued that a defective acknowledgment rendered the mortgage avoidable as to the debtor wife. Judge Morgernstern-Clarren held:
When the debtors granted the mortgage, they held the property under a survivorship tenancy. See Ohio Rev. Code §§ 5302.17, 5302.20. Under this form of ownership each survivorship tenant holds an equal share of the title to the property during their joint lives (unless the instrument creating the tenancy provides otherwise, which this one does not.) Ohio Rev. Code 5302.20(B). . . .
. . . .
Under Ohio law, a person is precluded from granting a mortgage on property in which he has no interest. See Ins. Co. Of N. Am. v. First Nat’l Bank of Cincinnati, 444 N.E. 2d 456, 459 (Ohio Ct. App. 1981). Additionally “a mortgagor can only bind the estate or property he has, and a `mortgagee can take no greater title than that held by the mortgagor.'” Stein v. Creter (In re Creter), Adv. No 06-2042, 2007 WL 2615214, at *4 (Bankr. N.D. Ohio Sept. 5, 2007) (quoting 69 Ohio Jur. 3d Mortgages and Deeds of Trusts § 17); see also Stubbins v. HSBC Mortgage Servs., Inc. (In re Slack), 394 B.R. 164, 170 (Bankr. S.D. Ohio 2008). When Mr. Doubov gave the mortgage to Citifinancial, he only held title to the property under a survivorship tenancy; that one-half interest is what he mortgaged.
Similarly, when the debtor and Radbourne mortgaged the property, they did so as joint tenants with rights of survivorship. The instrument creating the tenancy did not provide for other treatment of ownership, and thus the debtor, as a matter of law, held an undivided half interest in the property at the time it was mortgaged. When Radbourne gave the mortgage to RBC Mortgage, she only held a half interest, and that is what RBC Mortgage received. This conclusion is supported by the fact that both the debtor and Radbourne answered the trustee’s complaint by claiming an undivided half interest in the property, and this Court declines to consider any argument by RBC Mortgage that the debtor owes Radbourne some equitable relief as a result of her filing for a petition for bankruptcy. This Court holds that the certificate of acknowledgment is defective and the trustee can avoid themortgage as it relates to the undivided half interest of Mary Brigid.
Unresolved Matters Including Radbourne’s Cross-Claim
While it appears that this decision resolves most of the claims at issue in this adversary proceeding, one matter not yet addressed in this decision is Radbourne’s cross-claim against RBC Mortgage. In her cross-claim, Radbourne alleges that she was damaged as a result of negligence by RBC Mortgage in the preparation of the loan documentation and closing of the loan transaction that are the subject of this adversary proceeding. In its cross-motion for summary judgment, RBC Mortgage also seeks summary judgment on Radbourne’s cross-claim. Radbourne has not filed a response.
The Court is reluctant to decide the merits of Radbourne’s cross-claim absent further argument from the parties on the question of jurisdiction to hear this claim. For example, even if the parties were to consent to the undersigned judge entering a final judgment on the cross-claim, the Court has serious doubts as to whether it has “related to” subject matter jurisdiction over a non-debtor’s tort claim against another non-debtor. See 28 U.S.C. § 1334; In re Dow Corning Corp., 8,6 F.3d 482 (6th Cir. 1996).
An action is “related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate.” 86 F.3d at 489 (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)). For example, any recovery to the non-debtor Radbourne is unlikely to affect the debtor’s estate, either positively or negatively. Accordingly, any party wishing to have this Court decide the cross-claim should be prepared to address the issue of subject matter jurisdiction at a status conference at 1:30 P.M. on June 8, 2010.
In addition, while not included as a separate count, the trustee does seek, in her prayer for relief, authority to sell the real property, including the interest of the non-debtor co-owner. Therefore, counsel shall be prepared to advise the Court at the status conference as to what additional steps are needed to resolve all remaining claims in this adversary proceeding. Until there is a final decision on Radbourne’s cross-claim and any other unresolved claims, this is not a final judgment for purposes of 28 U.S.C. § 158. See Bankr. Rule 7054 and Fed. R. Civ. P. 54(b).
CONCLUSION
For the reasons stated above, the Court holds that the certificate of acknowledgment is defective and the trustee can avoid the mortgage as it relates to the half interest of the debtor. Accordingly, the trustee’s motion for summary judgment is granted. While it appears that this decision is largely dispositive, until there is a final decision on Radbourne’s cross-claim, this is not a final judgment for purposes of 28 U.S.C. § 158. See Bankr. Rule 7054 and Fed R. Civ. P. 54(b). The Court will conduct a status conference at 1:30 p.m. on June 8, 2010. Counsel shall be prepared to advise the Court as to what additional steps are needed to resolve all remaining claims in this adversary proceeding.
Page 24
JUDGMENT
For the reasons stated in the separate Memorandum of Opinion, the Court holds that the certificate of acknowledgment is defective and the trustee can avoid themortgage as it relates to the half interest of the debtor. Accordingly, the trustee’s motion for summary judgment is granted. While it appears that this decision is largely dispositive, until there is a final decision on Radbourne’s cross-claim, this is not a final judgment for purposes of 28 U.S.C. § 158. See Bankr. Rule 7054 and Fed R. Civ. P. 54(b). The Court will conduct a status conference at 1:30 p.m. on June 8, 2010. Counsel shall be prepared to advise the Court as to what additional steps are needed to resolve all remaining claims in this adversary proceeding.
IT IS SO ORDERED.
—————
Notes:
1. This Memorandum of Opinion is not intended for official publication.
2. In Zaptocky, the Sixth Circuit identified “three major prerequisites for the proper execution of a mortgage: (1) the mortgagor must sign the mortgage deed; (2) the mortgagor’s signature must be attested by two witnesses; and (3) the mortgagor’s signature must be acknowledged or certified by a notary public.” Zaptocky, 250 F.3d at 1024. The differences between Zaptocky’s three requirements and Leahy’s four requirements are (A) the deletion in Leahy of Zaptocky’s second requirement — attestation by two witnesses — due to a change in the statute, and (B) the Leahy court’s breaking down of Zaptocky’s third requirement — certification of acknowledgment — into three separate parts.
When speaking in generalities, it’s difficult for folks to understand what lawyer, judges and informed consumers are ranting about when we scream, “THE BANKS, LENDERS AND FORECLOSURE MILLS ARE COMMITTING FRAUD!”
I attach here a deposition transcript of Angela Melissa Nolan, a robo signer at Chase Home Finance. In the deposition, she describes in detail some of the corporate processes in place that purport to give pretender lenders the evidentiary basis to pursue foreclosure cases….I’ve called these people “Robo Signers” because prior depositions indicated they don’t read anything…they just sign. This deposition reveals another form of “Robo Signer”, a computer generated document, complete with a “real” signature scanned in…..and the rabbit hole just gets deeper and deeper.
C’mon take a few minutes to watch the video…I tell you it’s exactly what’s happening here!
![[NYSC] NY JUDGE DENIES 42 FORECLOSURE CASES “HAMP, AFFIDAVIT” ISSUES](https://stopforeclosurefraud.com/wp-content/themes/gazette/thumb.php?src=wp-content/uploads/2010/12/denied.gif&w=100&h=57&zc=1&q=90)
![[NYSBK] Circa:08 JUDGE BLASTS BAUM, CHASE HOME FINANCE, PILLAR PROCESSING “ORDER TO SHOW CAUSE” In Re: SCHUESSLER](https://stopforeclosurefraud.com/wp-content/themes/gazette/thumb.php?src=wp-content/uploads/2010/12/000948842.jpg&w=100&h=57&zc=1&q=90)
![[NYSC] JUDGE SPINNER LETS U.S. BANK HAVE IT “HAMP FAIL” U.S. Bank Natl. Assn. v Mathon](https://stopforeclosurefraud.com/wp-content/themes/gazette/thumb.php?src=wp-content/uploads/2010/12/JudgeJeffreyArlenSpinner.jpg&w=100&h=57&zc=1&q=90)
Recent Comments