Author Archives: Ebube Okoli

Georgia Court Dismisses TILA and RESPA Claims Brought by Plaintiff

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The court in deciding Mitchell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. (N.D. Ga. Sept. 25, 2013) granted the motion to dismiss proffered by the defendant.

The first enumerated cause of action in Plaintiffs’ complaint was a claim for fraud. Plaintiffs argued that their original mortgage lender, Accredited, engaged in a practice of filing false prospectus supplements with the Securities and Exchange Commission. Plaintiffs’ complaint also included a claim for wrongful foreclosure.

Next, the plaintiffs asserted that Deutsche Bank and MERS had “unclean hands” as they failed to make certain disclosures required by TILA. Plaintiffs also asserted that the defendants or their predecessors in interest violated RESPA in a number of ways. Plaintiffs’ complaint also included a claim for fraud in the inducement. Moreover, the plaintiffs’ complaint raised a claim for quiet title under O.C.G.A. § 23-3-40 and O.C.G.A. § 23-3-60 et seq. Lastly, the plaintiffs’ complaint raised a claim for fraudulent assignment.

Ultimately the court concluded that the plaintiffs’ complaint failed to state a viable claim for relief. Accordingly, this court granted the defendants’ motion to dismiss the plaintiffs’ complaint.

Ohio Appellate Court Affirms Judgment in Favor of Arch Bay Holdings

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The court in deciding Arch Bay Holdings, LLC v. Brown, 2013-Ohio-5453 (Ohio Ct. App., Montgomery County, 2013) found that the lower court did not err in confirming the sheriff’s sale, thus the judgment of the Montgomery County Common Pleas Court was affirmed.

Daniel Lee Brown appealed the lower court’s final order confirming a post-foreclosure sheriff’s sale of his residence and distributing the proceeds. First, he contended that the lower court erred in finding that appellee – Arch Bay Holdings – had standing to foreclose. Second, Brown claimed that the trial court erred in dismissing his counterclaims. Third, he asserted that the trial court erred in confirming the sheriff’s sale where no appraisal was performed.

Upon review, this court promptly disposed of Brown’s arguments about the lower court’s dismissal of his counterclaims and Arch Bay’s standing to foreclose. This court also determined that arguments about the counterclaims were barred by res judicata because Brown could have raised them in the prior appeal, which he filed after the trial court dismissed the counterclaims and filed a decree of foreclosure. Further, this court reviewed the evidence and upheld the lower court’s finding that Arch Bay had standing because it possessed the note and mortgage when it filed suit. Thus this court affirmed the lower court’s ruling.

Ohio Appeals Court Denies Assignment Error Claim Brought by Appellee

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The court in deciding United States Bank Nat’l Ass’n v. McHugh, 2013-Ohio-5473 (Ohio Ct. App., Lucas County, 2013) concluded that the trial court properly denied mortgagors’ motion under Civ.R. 60(B)(2).

Appellants argued that appellee lacked standing and was not the real party in interest. They also alleged that they were entitled to relief pursuant to their discovery of new evidence in the form of a pooling service agreement that confirmed appellee’s lack of standing.

Appellee opposed appellants’ motion on the basis that it was barred by res judicata, untimely, and failed to establish grounds for relief pursuant to Civ.R. 60(B)(2).

After considering the parties’ arguments, the court denied appellants’ motion. In its judgment entry, the court determined that the evidence relied upon by appellants in supporting their Civ.R. 60(B) motion was available to them prior to summary judgment and, therefore, was not newly discovered evidence. Further, the court found that appellants failed to demonstrate the existence of a meritorious defense as required under the Ohio Supreme Court. Finally, the court concluded that appellants’ motion was not filed within a reasonable time pursuant to Civ.R. 60(B).

Connecticut Court Rejects Invalid Assignment and Standing Claims

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The court in deciding Bank of Am., N.A. v. Samaha, 2013 Conn. Super.  (Conn. Super. Ct., 2013) granted summary judgment in favor of the plaintiff.

Plaintiff sought to foreclose a mortgage executed by Joseph Samaha and Denise Samaha in favor of the Webster Bank in the principal amount of $162,000.00.

The defendant raised several special defenses to this foreclosure action. First, the defendant asserted that the plaintiff did not have standing to bring this litigation. Second, the defendant claimed that as a result of the death of one of the makers of the note, Joseph Samaha, that his estate had an indivisible interest in the subject property and was subject to probate court jurisdiction. Third, the defendant challenged the authority of MERS to assign this mortgage to the plaintiff. Four, that the defendant had tendered payment with regard to the note and she alleged accord and satisfaction. Fifth, the defendant challenged whether or not the note in question was a negotiable instrument.

Regarding the first special defense, the court decided that the plaintiff had standing.
The court found there was simply no authority for the defendant’s second assertion. Further, the court found there were no facts alleged in the special defense and there is no affidavit from the defendant providing any factual foundation for the third assertion. Regarding the fourth special defense the court found that the mere assertion of this defense, without any evidence to support it, and thereby contest or create a material issue of fact for a motion of summary judgment is insufficient. Lastly, the fifth special defense was deemed to be an assertion of a legal conclusion.

The court in deciding this case granted the plaintiff’s motion for summary judgment.

California Court Rejects Improper Pooling and Servicing Agreement Argument Brought by Plaintiffs

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The court in deciding Sollenne v. United States Bank Nat’l Ass’n, 2013 U.S. Dist., (S.D. Cal., 2013) dismissed the plaintiffs’ claims.

Plaintiffs alleged three causes of action: 1) quiet title; 2) declaratory relief to determine the validity of the deed of trust on the date the note was assigned and to determine if any defendant has authority to foreclose; and 3) injunctive relief to stop further collection activity, including the sale of the property.

Plaintiffs’ desired remedies also include a request for an order compelling the defendants to transfer or release legal title and any alleged encumbrances, and possession of the property to plaintiffs.

The plaintiffs listed the following deficiencies which they contended rendered invalid any security interest in the deed of trust: 1) the separation of title, ownership and interest in the note and deed of trust; 2) the lack of assignments to or from the intervening entities when the loan was sold; 3) the failure to assign and transfer the beneficial interest in the DOT to Defendants in accordance with the PSA; 4) the failure to endorse, assign, and transfer the note to USBNA in accordance with the PSA and California law; 5) that there were no assignments of beneficiary or endorsements of the note to each intervening entity; and 6) Defendants violated terms of the PSA.

After considering the plaintiffs’ arguments, this court dismissed the claims premised upon the securitization of the loan and violations of the PSA as well as the plaintiffs’ remaining claims.

Vermont Court Rejects Homeowners’ Request to Dismiss Complaint for Lack of Standing

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The court in deciding Deutsche Bank National Trust v. Merritt, 2013 Vt., 225 (Vt. Oct. 1, 2013) ultimately

Defendant homeowners sought to appeal the lower court’s order, which granted substitute plaintiff bank’s motion to dismiss the foreclosure action.

The homeowners raised several arguments regarding the bank’s standing to enforce homeowners’ promissory note, and sought an order dismissing the case. The defendant specified the bank’s lack of standing as the basis for the dismissal request, ordering that any legal charges, assessments and fees assessed by a bank against homeowners in connection with this action be removed from their mortgage debt, and ordering that initial plaintiff OneWest return all mortgage payments received from homeowners with statutory interest.

After considering the defendant’s claim, this court followed the lower court in dismissing the case.

Georgia Court Dismisses Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq Claim

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The court in deciding Morrison v. Bank of Am., N.A., 2013 U.S. Dist. (N.D. Ga. Dec. 16, 2013) eventually granted Bank of America, N.A.’s motion to dismiss.

Plaintiff defaulted on her loan obligations after taking a loan from bank of America. Plaintiff asserted that she “suspended” payments because the defendant failed to properly identify the person that was the holder in due course of legal title or the ability to enforce the note under O.C.G.A. § 11-3-309.

Plaintiff asserted that foreclosure would be wrongful because the defendant lacked standing to foreclose on the property, also that the defendant violated the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq (“FDCPA“), and Georgia law by failing to validate the debt and provide an accounting of plaintiff’s mortgage. Lastly, plaintiff asserted that the defendant failed to obtain Secretary of U.S. Department of Housing and Urban Development approval to be designated as Foreclosure Commissioner, in violation of 12 U.S.C. § 3754.

Plaintiff also sought to have the security deed and note declared fully satisfied, to enjoin foreclosure of the property, to compel production of the plaintiff’s note and any assignments, and to require the defendant to validate the alleged debt. Bank of America moved to dismiss Plaintiff’s Complaint for failure to state a claim.

The court considered the plaintiff’s assertions, and categorically dismissed them in granting the defendant’s motion to dismiss.