In Deutsche Bank Nat’l Trust Co. v. Wilk, 2013 ME 79, 76 A.3d 363 (Me. 2013), the Maine Supreme Judicial Court vacated a judgment of foreclosure for Deutsche Bank on appeal by homeowner for Deutsche Bank’s failure to show ownership of the mortgage. Wilk procured a loan from Luxury Mortgage Company in 2005 with MERS named as nominee. Deutsche Bank commenced foreclosure proceedings after homeowners’ default in 2010, going to trial in 2012. The trial court found that Deutsche Bank provided evidence sufficient to merit foreclosure authority via a chain of assignments showing it was the holder of both the note and mortgage under 14 M.R.S. 6321. On appeal, the court notes that while Deutsche Bank evidenced its ownership of the note, it failed to adequately document its ownership of the mortgage, citing flaws in the chain of assignments. The court explains that the chain runs from MERS to IndyMac, then to FDIC as receiver for IndyMac to OneWest Bank, and finally OneWest Bank to Deutsche Bank; the problem is the date on the final assignment is two weeks prior to FDIC’s transfer to OneWest, meaning OneWest lacked authority to assign the mortgage at the time of its assignment to Deutsche Bank. Deutsche Bank attempted to rely on an earlier 2010 assignment from FDIC to Deutsche Bank, but provided no explanation for why the same mortgage as assigned twice by FDIC. As a result of the inconsistencies presented, the court found “the April 2010 assignment of the mortgage to Deutsche Bank, upon which the [trial] court relied, is not a ‘source whose accuracy cannot reasonably be questioned’ as a means of ‘accurate and ready’ proof of Deutsche Bank’s ownership of the mortgage.” See M.R. Evid. 201(b)(2); see also HSBC Mortg. Servs., Inc. v. Murphy, 2011 ME 59.
The court further found that the theory of estoppel by after-acquired property does not apply, and Deutsche Bank failed to prove its ownership under this theory; “the disputed assignment from OneWest Bank to Deutsche Bank did not involve a warranty deed or contain any factual allegation that OneWest Bank would need to contradict to assert title to the mortgage. The assignment purports to transfer ‘all interest’ OneWest Bank then held in the mortgage, without alleging that OneWest Bank had any interest to convey or making any other statement that could be interpreted to estop OneWest Bank from claiming title.” Pike v. Galvin, 29 Me. 183, 185 (1848); Bennett, 90 Me. at 461-62, 38 A. 372. Deutsche Bank was unable to prove any harmless error existed in the assignments, and therefore the trial court erred in granting the judgment of foreclosure.
The court in deciding Liddell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 153897 (E.D. Mich. Oct. 28, 2013) granted the defendants’ motion to dismiss plaintiff’s complaint.
Plaintiff commenced the action seeking to set aside a sheriff’s sale of his residential property. Plaintiff’s Complaint raised the following claims: Count I, Fraudulent Misrepresentation; Count II, Estoppel; Count III, Negligence; Count IV, Violation of Michigan’s Occupational Code, Mich. Comp. Laws §§ 339.915 and .918; and Count V, Violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k.
Defendants maintained that all of plaintiff’s claims challenging the foreclosure sale were subject to dismissal because plaintiff failed to redeem the property within the redemption period. Defendants further argued that even if plaintiff’s claims were not barred by the expiration of the statutory redemption period, his claims were subject to dismissal because he failed to state any valid claims upon which relief can be granted.
The Court agreed that plaintiff’s complaint failed to allege any claims upon which relief may be granted.
The court in deciding Perez v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 153947, 2013 WL 5781208 (W.D. Tex. Oct. 25, 2013) dismissed the plaintiff’s wrongful foreclosure.
Plaintiff alleged that the defendant’s foreclosure action was wrongful. Also plaintiff alleged that the deed of trust was not enforceable due to that lack of ownership in the note by the defendants.
Plaintiff asserted that First NLC, rather than MERS, was the only party authorized to assign the note and deed of trust to the defendant; she asserted that assignment is only complete upon recording, and recording has not been effectuated; and she asserted that the deed of trust and the transfer of lien document were fraudulently created, and therefore ineffective as a security instrument and assignment, respectively. Additionally, plaintiff asserted that the note and deed of trust were not enforceable because they had been split.
Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant argued that plaintiff has not stated a claim for wrongful foreclosure because she has not alleged that her home had been foreclosed.
Ultimately, the court rejected the plaintiff’s claims and the broader legal theories she asserted; however, the court granted the plaintiff leave to amend to allow her an opportunity to assert a valid claim.
The court in deciding Bank of N.Y. Mellon v Arthur, 2013 N.Y. Misc. LEXIS 4875, 2013 NY Slip Op 32625(U) (N.Y. Sup. Ct. Oct. 23, 2013) granted the plaintiff’s motion to dismiss and denied the defendant’s [Arthur] cross-motion.
The Plaintiff commenced a foreclosure of a mortgage. Plaintiff moved for an order: (i) pursuant to CPLR § 3212 granting summary judgment on its foreclosure claim; (ii) pursuant to CPLR § 3211(b) and § 3212, dismissing with prejudice each of the affirmative defenses and counterclaims raised by the defendant in his answer.
The court noted that in a mortgage foreclosure case, “a plaintiff may establish a prima facie right to foreclosure by producing the mortgage documents underlying the transaction and undisputed evidence of nonpayment.” Thus, once the plaintiff established its right to foreclosure, the burden is on the defendant “to raise a triable issue regarding his affirmative defenses and counterclaims in opposition to foreclosure.”
Here, the plaintiff made out its prima facie by producing undisputed affidavits. The court found that Arthur’s response failed to produce competent evidence of any defense to raise an issue of fact. Thus, the court eventually granted the plaintiff’s motion and denied Arthur’s cross-motion.
The BLS Real Estate Society is sponsoring The Zoning and Urban Planning Legacy of the Bloomberg Administration on Monday, November 25th from 6:30 p.m. – 9:00 p.m. in the Student Lounge on the first floor of Brooklyn Law School, 250 Joralemon Street. The press release reads:
Come hear two real estate experts discuss and debate zoning and urban planning issues and the legacy of the outgoing Bloomberg Administration.
Mitchell Korbey ’03, Chair of Zoning and Land Use Group, Herrick Feinstein
David Reiss, BLS Real Estate Professor (previously Paul Weiss, and Morrison & Foerster)
No RSVP is required for this event. Contact Rafe Serouya at email@example.com for more information.
Mitch’s bio reads in part,
Prior to joining Herrick, Mitch served for six years as commissioner of the New York City Board of Standards and Appeals under Mayor Rudolph Giuliani, and as director of the New York City Department of City Planning’s Brooklyn office, where he guided Brooklyn’s first mixed use zoning districts through the public review process and spearheaded plans for the rezoning and revitalization of a number of neighborhoods, including Williamsburg and Greenpoint. Prior to running the Brooklyn office, Mitch was deputy director of the Staten Island office and served in the City Planning Department’s Housing and Economic Development Division.
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Mitch is an Adjunct Professor in Hunter College Graduate School’s Urban Affairs and Planning Department where he teaches Land Use Law and leads a seminar entitled “Lawyers and Planners in the Development Process.” His insights on real estate development and the intricacies of local zoning laws have appeared in major real estate and business publications, including Crain’s, The New York Times and The Real Deal.
He is also a co-author of Herrick’s land use and zoning blog, ZONE, which keeps readers up-to-date on the latest issues in land use and environmental law.
In Buchanan v. HSBC Mortg. Servs., 993 N.E.2d 275, 2013 Ind. App. LEXIS 404, 2013 WL 4507932 (Ind. Ct. App. 2013), the Indiana Court of Appeals held that HSBC had the right to foreclose on the homeowners’ mortgage, dismissing homeowners’ allegations that the HSBC assignment was unauthorized. The Buchanans procured a loan from Accredited Mortgage Lenders in 2006, which named MERS as mortgagee and nominee. Later that year, MERS sold the loan to HSBC, who began foreclosure proceedings in 2008 after the homeowners defaulted. HSBC’s motion for summary judgment was granted in 2012, which homeowners appeal from here. The Indiana Court of Appeals upheld the decision of the trial court, finding that the homeowners presented no evidence that MERS lacked authority to assign the note and mortgage. The Buchanans alleged that the assignment was rendered invalid because an endorsement was not attached to the note in the complaint, and because the allonge was blank and not dated. However, the court held the assignment was valid and endorsed to HSBC in blank under Indiana Code Section 26-1-3.1-109(a)(2) which states “A promise or order is payable to bearer if it: . . . (2) does not state a payee,” showing that HSBC was the holder of the “bearer instrument” pursuant to Indiana Code Section 26-1-3.1-301(1). The court further found no evidence that the allonge was not affixed to the note, and states that HSBC is permitted to amend its complaint to attach the allonge to the note. Homeowners also failed to produce evidence that the signatory of the HSBC assignment lacked authority to sign on behalf of Accredited. Ultimately the court found that no issue of genuine or material fact existed.
The court in Hoffman v. Goldman, Sachs & Co., 2013 U.S. Dist. LEXIS 155092, 2013 WL 5797623 (D. Nev. Oct. 28, 2013) dismissed both of the plaintiff’s intentional misrepresentation and negligent misrepresentation claims.
Plaintiffs asserted two claims in their complaint: intentional misrepresentation and negligent misrepresentation. In regards to the first claim, the court found that the plaintiffs’ claim for the misrepresentation failed because it was not pled with specificity as required by Rule 9(b). Nowhere in the complaint did plaintiffs allege who made the fraudulent statements, when the statements were made, or where they were made.
Plaintiffs failed to allege the specific content of the fraudulent statements—their allegations include only broad generalizations. Plaintiffs also failed to identify precisely what reliance they placed on the “misrepresentations” such that plaintiffs are entitled to damages or equitable relief.
Lastly, the court found that the plaintiffs also nakedly assert a claim for “negligent misrepresentation,” and that the claim suffered from the same deficiencies as the first claim.