About Michael Liptrot

Michael is a third year student at Brooklyn Law School pursuing the Real Estate Law Certificate. He received his B.A. from The American University in 2010, with a major in Law & Society and minor in Sociology. He has completed legal internships with the New York City Housing Authority, the New York City Housing Development Corporation, Brooklyn Law School’s Corporate & Real Estate Clinic, and is currently working in the law school’s Community Development Clinic.

Michigan District Court Dismisses Homeowner’s Action to Declare Foreclosure Null and Void

In Olesuk v Fed. Natl. Mort. Assoc., 2:12-cv-11001 (Dist. Ct. Mich. 2012), the court dismissed an action by homeowners against the parties involved in the multiple assignments of their mortgage, including MERS (Defendants). Homeowners brought the action after defaulting on their mortgage, seeking a declaration that the foreclosure action brought by the mortgagee be declared null and void. The homeowners brought the following claims: “(1) Quiet Title; (2) Fraud in the Assignment against JPMorgan and Chase Home (related to the 2009 assignment); (3) Fraud in the Assignment against Chase Home and MERS (related to the 2010 assignment); (4) Fraud in the Signatures (Robosigning); (5) that Defendants are not the real parties in interest and lack standing to foreclose, and; (6) Slander of Title.”

Homeowners’ claims rested on two facts. First, they claimed that the notarized certifications of the 2009 and 2010 assignments were false and therefore the assignments were invalid. Second, homeowners claimed that Fannie Mae executed an unrecorded assignment of the note to a REMIC, that the REMIC was not a party to the subsequent transfers of the mortgage, and thus the assignments were invalid.

The court rejected all of homeowners’ claims. The first and fifth claims were based on an argument “that Defendants may not foreclose on the property because the allegedly fraudulent or forged signatures and the transfer to the REMIC trust rendered the assignments invalid.” The court rejected this argument because “as non-parties to the assignments, [homeowners] lack standing to challenge their validity.”

The court rejected the second, third, and fourth claims because homeowners could not “establish that they relied to their detriment upon the allegedly forged signatures or fraudulent assignments.” The court then rejected the sixth claim because “the assignments, fraudulent or not, do not disparage Plaintiffs’ claim of title.”


Ohio Court of Appeals Holds that Execution of Mortgage Assignment is Sufficient to be a Real Party in Interest

In BAC Home Loans Servicing, L.P. v. Hall, 2010-Ohio-3472 (Ohio Ct. App. 2010), the Ohio Court of Appeals reviewed the sole question of whether the bank in this case had standing to foreclose. The homeowners argued that the bank “was not the real party in interest and therefore lacked standing to initiate the foreclosure action because the mortgage assignment was not recorded until. . . four days after the [foreclosure] complaint was filed.” The court rejected this argument based on the fact that although the assignment was not recorded until after the complaint was filed, it was executed prior to filling. The court then held that the execution of the mortgage assignment was sufficient to characterize the bank as “the current holder of the note and mortgage at the time the complaint was filed” and thus “was the real party in interest and therefore had standing to bring the foreclosure action.”

Massachusetts District Court Holds that MERS, as Mortgagee and Nominee for Lender, has Authority to Assign Mortgage

The court in Rosa v. Mortg. Elec. Sys., Inc., 821 F. Supp. 2d 423 (D. Mass. 2011) held that the assignee bank had standing to foreclose on the homeowners. The homeowners argued that the bank did not have standing because MERS lacked authority to assign the mortgage. They made several arguments as to why MERS lacked authority, including (1) the original noteholder did not authorize the assignment; (2) MERS could only act as nominee for the original noteholder, who dissolved in 2008; and (3) MERS did not hold the note at the time of assignment, and thus could not assign what it did not hold.

First, the court looked at MERS’s authority to assign the mortgage. The court rejected the homeowner’s argument, stating, “[s]ince Massachusetts law does not require a signatory to prove authority to execute a mortgage assignment, a mortgagee need not prove authorization from the note holder to assign a mortgage.” The court then held that the assignment by MERS to the assignee bank was valid because MERS was a mortgagee under the terms of the mortgage agreement.

Next, the court determined that the original noteholder’s dissolution had no effect on MERS’s authority to assign. The court held, “[the original noteholder’s] dissolution [did not] terminate MERS’ nominee relationship with a successor purchaser or assignee of the Note or affect MERS'[s] status as mortgagee. . . . As mortgagee, MERS continued to hold the Mortgage in trust for whomever happened to own the Note.”

Finally, the court rejected the argument that MERS must hold the note in order to assign the mortgage. They found this argument contrary to case law. The court stated, “In Massachusetts, the mortgage does not automatically follow the note and the mortgage and the note may be held by different parties. . . . An assignor of a mortgage is not required to have possession of or beneficial interest in the note in order to assign the mortgage because it holds the mortgage in trust for the note holder. ” Thus, MERS had authority to assign the mortgage despite not being in possession of the underlying note.

Ohio Court of Appeals Holds that the Note Follows the Mortgage Where Intent of Parties is Clear

In Bank of New York v. Dobbs, 2009-Ohio-4742, the court found that the Bank of New York (Bank) had standing to bring a foreclosure action against the homeowners. In this case, Countrywide Home Loans (Countrywide) was the original note holder, and Bank claimed that Countrywide assigned the note to MERS, who then assigned to Bank. The homeowners argued that Bank did not have standing to foreclose because there was no evidence that Countrywide assigned the note to MERS and thus the chain of title was incomplete. In determining standing, the court found that “the chain of title between Countrywide, MERS and [Bank was] not broken” because “the obligation follows the mortgage if the record indicates the parties so intended” and in this case there was “clear intent by the parties to keep the note and mortgage together, rather than transferring the mortgage alone.” Thus, the note followed the mortgage upon transfer, and Bank was the lawful holder of the note.

Massachusetts Superior Court Holds that Assignee of Residential Mortgage Backed Securities has Standing to Seek Statutory Damages

In Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley & Co., No. 10-2741-BLS1, 2012 WL 5351233, at *20 (Mass. Super. Ct. Suffolk Co. Sept. 28, 2012), the Superior Court of Massachusetts held that Cambridge Place Investment Management, Inc. (CPIM), as assignee of residential mortgage backed securities, had standing to seek damages under the Massachusetts Uniform Securities Act (MUSA) that resulted from alleged false and/or misleading statements made by the “underwriters, dealers, and depositors of the securities at issue.” In this case, the assignor of the securities was a group of nine hedge funds that had received advice from CPIM to purchase the securities at issue. The securities turned out to produce “substantial losses” for the hedge funds. In order to recoup their losses, CPIM further advised the hedge funds to assign the securities to it, so that it could bring an action in Massachusetts state court.

The underwriters, dealers, and depositors of the securities (Morgan Stanley) argued that CPIM lacked standing for three reasons: “First, [Morgan Stanley] contend[s] that the assignments of claims were done for an “improper purpose”—to collusively destroy federal diversity jurisdiction. . . . Second, [Morgan Stanely] argue[s] that the remedies under MUSA are only available to the direct purchaser of the securities, and, as assignee, CPIM lacks privity with [Morgan Stanely]. . . . Third, [Morgan Stanley] assert[s] that CPIM lacks standing to seek the rescission of the securities because rescission is a personal right that is not assignable.” The court addressed these arguments, rejecting each in turn.

The court held that the first argument must be rejected because “[e]ven if the assignments were made collusively to destroy federal diversity jurisdiction, that, in itself, does not invalidate them. . . . [T]hat the assignments were improperly made to CPIM only affects their validity under federal jurisdictional law, and do not affect their validity under state law.” The court found that for this argument to be accepted, Morgan Stanley needed to show “additional facts to invalidate the assignments under state law.”

The court then rejected Morgan Stanley’s second argument. In doing so, it characterized CPIM as an investment advisor, and applied a functional test “based on the decision-making authority that the investment advisor possessed.” Quoting a Massachusetts district court case, the court stated the test as follows: “as long as the investment advisor has discretion in determining what securities to buy and sell, it qualifies as a purchaser with standing to bring a securities fraud action.” The court then found that CPIM sufficiently alleged that it had discretion in determining what securities to buy and sell.

The court finally rejected Morgan Stanley’s final argument, stating, “The court is unwilling to conclude that CPIM’s claim is ‘personal’ and not subject to assignment. . . . Accordingly, CPIM is entitled to assert all available statutory remedies, including rescission.”

Massachusetts Supreme Court Holds that Bank Lacks Standing to Bring SCRA Claim Against Homeowner

In HSBC Bank USA, N.A. v. Matt, 464 Mass. 193 (2013), the Supreme Court of Massachusetts found that HSBC Bank USA, N.A. (HSBC) lacked standing to proceed with its claim against the homeowner in a servicemember proceeding. HSBC initially filed a complaint in the Land Court under the Massachusetts Soldiers’ and Sailors’ Civil Relief Act (Massachusetts Act) “to determine if [homeowner] was entitled to foreclosure protections under the Federal Servicemembers Civil Relief Act (Federal SCRA or SCRA).” The homeowner did not contest the fact that she was not entitled to protection under the SCRA. Instead, she disputed HSBC’s standing to bring a foreclosure action generally, arguing, “[HSBC] was not the clear holder of either her note or her mortgage.” Despite the fact that the homeowner “was not entitled to appear or be heard at the servicemember proceeding,” the court considered the standing question sua sponte.

The court held that in determining standing in servicemember proceedings, a bank must present evidence to prove their status as mortgagees, or else as agents of mortgagees. The court reversed the Land Courts decision holding that HSBC had standing because of a purported right to purchase the homeowner’s mortgage. However, the court noted that determinations of standing in servicemember proceedings do not establish (and thus do not eliminate) standing in foreclosure proceedings.

Ohio Court of Appeals Holds that MERS, as Mortgagee, has Standing to Foreclose Despite Lacking a Beneficial Interest in the Note

In Mtge. Electronic Registration Sys., Inc., v. Mosley, 2010-Ohio-2886, the Court of Appeals of Ohio held that MERS had standing to foreclose on the homeowners. The court found that language in the mortgage naming MERS as nominee, as well as a provision explicitly giving MERS the right to foreclose on the property, was sufficient to give MERS standing to foreclose. The court was not persuaded by the argument that MERS lacked standing because MERS did not have a beneficial interest in the underlying note. In response to this argument, the court stated, “The fact that MERS, the mortgagee, lacked a beneficial interest in the note that was secured by the mortgage does not deprive MERS of standing to enforce the note and foreclose the mortgage. . . . MERS has always been the mortgagee and [thus] has had a contractual right to foreclose on the Mortgage.”