May 26, 2014
Memorial Day
In Flanders Fields the poppies blow …
May 26, 2014 | Permalink | No Comments
California Court Holds that the Securitization of Mortgage Loan did not Nullify Rights Granted Under Deed, Including the Right to Foreclose
The court in deciding Rivac v. Ndex West LLC, 2013 U.S. Dist. (N.D. Cal. Dec. 17, 2013) granted the motion to dismiss tendered by the defendant.
Plaintiffs filed a complaint that alleged eight causes of action including; (1) breach of contract, (2) breach of implied agreement, (3) slander of title, (4) wrongful foreclosure, (5) violation of § 17200, (6) violation of 15 U.S.C. § 1601, et seq. (TILA) (7) violation of 12 U.S.C. § 2605 (RESPA), and (8) violation of 15 U.S.C. § 1692, et seq. (FDCPA).
After considering the plaintiff’s contentions, the court granted the defendant’s motion to dismiss. The court then held that the securitization of borrowers’ mortgage loan did not nullify any rights granted under a deed of trust, including the right to foreclose against the borrowers’ real property upon the borrowers’ default.
Further, the absence of the original promissory note in the nonjudicial foreclosure did not render the foreclosure invalid. Moreover, the court held that mere allegations that documents related to the deed of trust were robo-signed by persons who had no authority to execute the documents had no effect on the validity of the foreclosure process.
Lastly, the court held that there was no breach of the deed of trust since the beneficiary was expressly authorized to sell the underlying note, and the borrowers themselves did not perform under the deed of trust.
May 24, 2014 | Permalink | No Comments
May 23, 2014
Texas Court Dismisses Claims of Texas Debt Collection Act and Texas Property Code Violations
The court in deciding Katz v. JP Morgan Chase Bank N.A., 2013 U.S. Dist., (S.D. Tex. Dec. 18, 2013) granted the motion to dismiss put forth by the defendant.
Plaintiff Katz alleged that defendant JP Morgan: (1) violated the Texas Property Code by failing to give proper notice because all transfers of the lien were not recorded timely; (2) was unjustly enriched because Katz may have been paying the wrong lender or account and that foreclosure would yield value above the amount owed; (3) violated or will violate the Texas Business and Commerce Code because defendants had failed to produce the original note with all transfers and assignments, thus the defendant could not enforce the mortgage without the promissory note; and that the defendant (4) violated the Texas Debt Collection Act by taking actions to collect on the note despite having no authority to collect on the note.
After methodically considering the plaintiff’s assertions, the court categorically dismissed them.
May 23, 2014 | Permalink | No Comments
Supreme Court of New York (Kings County) Denies Summary Judgment Motion on Plaintiff’s Standing To Foreclose
The court in deciding U.S. Bank Natl. Assn. v Steinberg, 42 Misc. 3d 1201(A) (N.Y. Sup. Ct. 2013) denied the plaintiff’s motion for summary judgment in its entirety.
The Morgan Stanley Mortgage Trust commenced this foreclosure action against the Steinbergs. Plaintiff’s unverified complaint contained a single allegation regarding its standing to maintain this foreclosure action, alleged that plaintiff was the holder of the note and mortgage, which was indorsed by blank indorsement and delivered to plaintiff prior to commencement of this action.
In regards to plaintiff’s standing to foreclose, the court found that the plaintiff was not entitled to the relief it sought because it has failed to proffer any evidence of its standing to foreclose under the Steinberg Note at the time of commencement.
Further, the court found that there were triable issues of fact regarding delivery of the Steinberg note from the originating lender and indorser, Hemisphere National Bank, to the Morgan Stanley Mortgage Trust, requiring denial of the instant summary judgment motion in its entirety.
May 23, 2014 | Permalink | No Comments
Illinois Court Rejects “Show Me the Note” Argument
The court in Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380 (Ill. App. Ct. 1st Dist. 2013) rejected show-me-the-note argument proffered by the defendant.
Defendants claimed that Parkway did not demonstrate proper standing to foreclose because it did not establish the fact that it was the true holder of its own loan. The basis of this argument was the contention that the defendants requested Parkway to produce the “original title” or original notes on numerous occasions but Parkway failed to do so.
The court easily resolved the first part of this argument by finding that the defendants did not explain what an “original title” was. Even so, the court found that the defendants also failed to cite any authority as to why such a document would be a necessary element of proof in a foreclosure case, or why it might be relevant.
The court found that the mortgagors were personally served and that was all that was necessary in this case. With regard to the mortgagors’ claim that the mortgagee did not establish that it was the true holder of the loan, the court held that production of the original note in open court was not a required element of proof in a foreclosure case under 735 ILCS 5/15-1506(b) (2010).
May 23, 2014 | Permalink | No Comments
May 24, 2014
New York Court Denies Defendant’s Cross-Move to Dismiss Plaintiff’s Complaint Pursuant to CPLR 3211(a)(3)
By Ebube Okoli
The court in deciding Waterfall Victoria Master Fund, Ltd. v Hayle, 2013 N.Y. Misc. (N.Y. Sup. Ct. Dec. 11, 2013) denied the defendants’ cross-motion to dismiss the complaint based upon the plaintiff’s lack of standing is denied. The court granted the motion proffered by the plaintiff.
Plaintiffs brought an action to foreclose on the defendant’s property, and sought summary judgment in its favor against the defendant’s affirmative defenses and counter claims. Defendants, Parkers, opposed the plaintiff’s motion and cross-moved to dismiss the complaint pursuant to CPLR 3211(a)(3), asserting that plaintiff lacked standing to maintain the action.
The court found that the plaintiff’s well documented motion which included a copy of the note endorsed in blank, the written assignment of the mortgage by MERS, the subsequent assignments of the mortgage and note to Waterfall Victoria Master Fund, and the assignment of the mortgage and note Waterfall Victoria Master Fund, established its entitlement to summary judgment, including its standing. As such the court granted the plaintiff’s motion.
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May 24, 2014 | Permalink | No Comments