Author Archives: Ebube Okoli

United States District Court Rejects Show-me-the-Note Theory and SpIit-the-Note Theory Claims

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In deciding McWright v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 180500 (N.D. Tex. Nov. 7, 2013) the United States District Court for the Northern District of Texas rejected the plaintiff’s claims.

In her complaint, plaintiff raised the following causes of action: (1) violation of the federal Fair Debt Collection Practices Act, (2) Negligence, (3) Fraud, (4) Declaratory relief, and (5) Quiet Title. Because many of these claims were premised upon unfounded legal theories, the court first addressed the underlying theories before turning to the merits of each of plaintiff’s claims. In addressing the plaintiff’s claims the court uniformly rejected them.

Plaintiff unsuccessfully contended that defendants were required to show proof that they are the holder of the note prior to foreclosing on the property. However, the court noted that this “show-me-the-note” theory has been regularly rejected and would so be in this case as well.

To the extent plaintiff argued that MERS lacked the authority to transfer the loan, the court found that such an argument similarly fails. Moreover, the court denied the remaining plaintiff’s claims as lacking merit.

Kansas Court of Appeals Upholds Summary Judgment in Favor of Wells Fargo

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The Court of Appeals of Kansas in deciding Wells Fargo Bank, N.A. v. Richards, 2013 Kan. App. LEXIS 1160 (Kan. Ct. App. 2013) ultimately affirmed the lower court’s granting of summary judgment for Wells Fargo.

Plaintiff appealed the lower court’s decision granting summary to Wells Fargo Bank.

In this appeal, plaintiff asserted that (1) Wells Fargo lacked standing to bring the foreclosure action; (2) the lower court erred in holding Wells Fargo’s possession of the promissory note he signed was insufficient to enforce and foreclose the mortgage it secures; (3) Wells Fargo did not experience/suffer a default; (4) there was no contract because the note and mortgage were split; and (5) Richards was not afforded due process.

After examining the record and considering the arguments of the parties, this court held that there was no merit to any of Richards’ arguments. Consequently, this court affirmed the lower court.

 

 

Kansas Court of Appeals Finds that Wells Fargo’s Possession of Signed Promissory Note was Sufficient to Enforce and Foreclose

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The court in deciding Wells Fargo Bank, N.A. v. Richards, 2013 Kan. App. 1160 (Kan. Ct. App. 2013) affirmed the lower court’s decision finding that Wells Fargo had standing to bring foreclosure action.

On January 25, 2013, the lower court filed its journal entry of judgment and dismissal, finding that defendant Richards had failed to controvert any of Wells Fargo’s allegations. The lower court found that Wells Fargo was holder of the note and mortgage; Richards was in default and Wells Fargo was entitled to judgment on the note and to foreclose the mortgage. The court reaffirmed its previous dismissal of Richards’ counterclaim, finding the “points, claims, and arguments” to be without merit.

Defendant, in this appeal, asserted five claims, (1) Wells Fargo lacked standing to bring the foreclosure action; (2) the district court erred in holding Wells Fargo’s possession of the promissory note he signed was insufficient to enforce and foreclose the mortgage it secures; (3) Wells Fargo did not experience/suffer a default; (4) there was no contract because the note and mortgage were split; and (5) that there was lack of due process.

The court examined the record and considered the arguments of the parties. After the consideration, the court held that there was no merit to any of defendant Richards’ arguments. Consequently, the court affirmed the lower court’s decision.

Michigan Appeals Court Upholds Summary Judgment and Finds that Bank’s Purchase did not Violate MCL 600.3228

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The court in deciding Bank of N.Y. Mellon Trust Co. Nat’l Ass’n v. Robinson, 2013 Mich. App. 2170 (Mich. Ct. App. 2013) upheld the lower court’s grant of summary judgment.

In this action for possession of a foreclosed property, defendants appealed as of the summary disposition that the lower court granted in favor of the plaintiff on the defendant’s counterclaims. After considering the defendant’s arguments the court affirmed the lower court’s ruling.

On appeal, the defendant raised two issues with regard to the underlying mortgage. First, the defendant argued that the plaintiff, through its predecessor, committed fraud in the execution of the mortgage. Second, the defendant alleged that the plaintiff did not have the right to foreclose because there was no evidence of record that the defendant’s note was assigned to plaintiff. The defendant also argued that the bank’s purchase violated MCL 600.3228, which required that a purchase by a mortgagee at a foreclosure sale be made “fairly and in good faith.”

After considering the defendant’s contentions the court ultimately affirmed the lower court’s ruling.

Illinois Court of Appeals Upholds Lower Court Decision Finding that Wells Fargo had Standing to Foreclose

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The court in deciding Wells Fargo Bank, N.A. v. Abatangelo, 2013 IL App (1st) 130423-U (Ill. App. Ct. 1st Dist. 2013) that Wells Fargo had standing to foreclose the mortgage.

Defendant, Peter Abatangelo, appealed the order of the circuit court granting summary judgment in favor of plaintiff, Wells Fargo Bank, on plaintiff’s foreclosure complaint. On appeal, Mr. Abatangelo contended that the court erred in granting summary judgment because (1) the mortgage contract did not properly assign the right to foreclose to Wells Fargo; and (2) the trial court improperly considered new arguments raised by Wells Fargo for the first time in a reply brief in support of their motion to dismiss.

After considering the defendant’s contentions the court ultimately affirmed the lower court’s ruling.

Ohio Court Finds that Bank of America had Standing to Foreclose and MERS had Authority to Assign

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The court in deciding Bank of Am., N.A. v. Harris, 2013-Ohio-5749 (Ohio Ct. App., Cuyahoga County Dec. 26, 2013) found there was no merit to plaintiff’s appeal, and affirmed the lower court’s dismissal.

Defendant, Frederick Harris, appealed from the trial court’s decision granting summary judgment to plaintiff, Bank of America. Plaintiff argued that the trial court erred as a matter of law by granting summary judgment in favor of the plaintiff-appellee.

Plaintiff argued that Bank of America lacked standing to pursue the foreclosure because the bank was a party solely by virtue of a purported assignment from MERS. It argued that MERS had no authority to assign the mortgage to Bank of America, and thus, Bank of America had no standing to bring the suit.

The court rejected the plaintiff’s contentions, finding that the bank had standing to bring a foreclosure action because it was the real party in interest at the time that a foreclosure complaint was filed. The court also found that the bank had possession of the note, which was payable to bearer. Therefore, it was the current holder of the note and entitled to enforce it under R.C. 1303.31 and that after the merger, the bank stepped into the shoes of the absorbed company and had the ability to enforce. As such no further action was necessary to become a real party in interest.

United States District Court for the District of Columbia Dismisses Case Due to Lack of Jurisdiction

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The court in deciding Glaviano v. JP Morgan Chase Bank, N.A., 2013 U.S. Dist. 180582 (D.D.C. Dec. 27, 2013) dismissed the plaintiff’s claim due to lack of jurisdiction.

Plaintiffs alleged that the defendants did not have “possession of the note” or a “documented property interest in the note and mortgage or deed of trust.” Plaintiff also alleged that the “deed of trust was void and ineffective due to fraud,” and that the trustee’s foreclosure sale was “void because the alleged beneficiary . . . never had standing to substitute the trustee.” They further claimed that the sale of their property at a foreclosure sale violated their due process rights under the U.S. Constitution. Based on these allegations, plaintiff sought an injunction against the foreclosure sale.

The court considered the plaintiff’s argument and found that the court lacked jurisdiction, as such the case must be dismissed. Because the plaintiff sought the equivalent of appellate review of state court rulings, the district court dismissed the suit for lack of jurisdiction under Rooker-Feldman. The court found that plaintiffs in this case also asked the federal district court to review state court rulings.

Accordingly, the complaint was dismissed for lack of jurisdiction and the motion for injunction was denied as moot due to dismissal of the case.