Ohio Court of Appeals Holds that Countrywide Home Loans has Standing to Bring a Foreclosure Action
On October 25, 2013, the Ohio Court of Appeals in Countrywide Home Loans v. Montgomery held that the Plaintiff had standing to initiate a foreclosure action since it was the party in interest at the time the suit was commenced.
In 2004, Robert Montgomery (“Montgomery”) bought a home in Ohio with a mortgage from Keybank. The mortgage was later bought by Countrywide Home Loans Inc. (“Countrywide”). In 2008, Countrywide filed a foreclosure action against Montgomery. At trial, Montgomery challenged Countrywide’s standing and claimed that it was not the real party in interest because it did not have title to the mortgage at the time the suit was commenced. The trial court later granted a motion for summary judgment by Countrywide.
In March 2012, Montgomery filed for bankruptcy protection and the foreclosure sale was briefly delayed, but was lifted in November 2012 after Countrywide filed a notice of relief. The trial court also denied Montgomery’s multiple motions to vacate the judgment. The Ohio Court of Appeals affirmed the trial court’s summary judgment and denial of Montgomery’s motions to vacate the judgment. The Court of Appeals found that Countrywide was the party in interest at the time the case was commenced. The Court further found that recent jurisdictional case law in Ohio did not apply to the case at bar since it only applied when there was a party, unlike Countrywide, who was not a party in interest at the time the action began. Since Countrywide held the note and mortgage at the time the foreclosure action commenced, it had standing to initiate the action, and the Court therefore affirmed the trial court’s judgment.
January 21, 2014 | Permalink | No Comments
Florida Appeals Court Holds that Service Agent of Bank has Standing to Initiate Foreclosure Action
On October 13, 2013, the Florida District Court of Appeals in American Home Mortgage Servicing, Inc. v. Bednarek held that a servicing agent of a larger bank had standing to file a foreclosure action against a homeowner because it properly acquired the mortgage and was therefore the note holder and owner for the purposes of foreclosure.
On May 31, 2005, Lucy Bednarek (“Defendant”) bought a home with a mortgage from American Brokers Conduit (“ABC”). On March 30, 2006, ABC sells the mortgage to Deutsche Bank’s servicing agent, AHMSI–Maryland (“AHMSI-M”). In September 2007, AHMSI-M brought a foreclosure action against Defendant and claimed that it was the owner and holder of the underlying promissory note. Separately, AHMSI-M was acquired by AHMSI (collectively “AHMSI”) in 2008 and the newly merged company continued the action by filing the original promissory note and mortgage in 2009. The trial court dismissed the case holding that AHMSI did not have standing to initiate the foreclosure action as it could not show that it was the owner and holder of the note and mortgage. However, the Florida Court of Appeals reversed the trial court’s ruling and held that AHMSI was the note owner and holder because ABC properly assigned the note to AHMSI prior to the start of the foreclosure action and therefore had standing to initiate the action.
January 21, 2014 | Permalink | No Comments
January 19, 2014
California Court Dismisses All Seven Causes of Action Arising Out of the Alleged Wrongful Foreclosure of Plaintiff’s Home
The court in deciding Dorn v. Countrywide Home Loans, 2013 Cal. App. Unpub. LEXIS 7356 (Cal. App. 2d Dist. 2013) concluded that the trial court did not abuse its discretion in dismissing the action; the court thus affirmed the lower courts decision.
Plaintiff Jason Dorn appealed from a judgment dismissing his action against defendants America’s Wholesale Lender, Countrywide Bank, Bank of America Home Loan Services, MERS, and ReconTrust.
Plaintiff filed a complaint asserting causes of action for: (1) declaratory relief: fraud in the execution, (2) declaratory relief: failure of consideration, (3) declaratory relief: existence of an obligation — no creation of rights, (4) declaratory relief: existence of an obligation — no creation of rights,(5) injunctive relief, (6) accounting.
After considering arguments the court ultimately affirmed the lower court’s decision to dismiss.
January 19, 2014 | Permalink | No Comments
Wisconsin Court Grants Summary Judgment in Favor of GMAC
The court in deciding GMAC Mortg., LLC v. Poley, 2013 Wisc. App. LEXIS 872 (Wis. Ct. App. 2013) affirmed the lower court’s decision in granting summary judgment in favor of GMAC.
In this foreclosure action, the circuit court granted summary judgment in favor of the mortgagee, GMAC Mortgage LLC. On appeal, mortgagor James Poley argued that the court should have stayed this foreclosure action as a result of a federal bankruptcy proceeding initiated by GMAC during the pendency of this action and, in any case, erred in granting summary judgment in favor of GMAC.
After considering the arguments the court concluded that the lower court did not err in determining that the bankruptcy proceeding did not prevent Poley from opposing summary judgment. The court also concluded that the lower court properly granted summary judgment. Therefore the court affirmed the decision of the lower court in all respects.
January 19, 2014 | Permalink | No Comments
Michigan Court Grants Summary Judgement in Favor of Bank
The court in deciding Wargelin v. Bank of Am., 2013 U.S. Dist. LEXIS 146326 ( E.D. Mich. 2013) ultimately granted defendants’ motion for summary judgment.
Plaintiff brought an action arising out of a foreclosure and subsequent sheriff’s sale of his residential property. Count I of plaintiff’s action was violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. Count II, was for breach of implied covenant of good faith and fair dealing. Count III involved defamation of title. Count IV was discharge of lien and claim to quiet title. Count V of the plaintiff’s complaint was for a violation of Mich. Comp. Laws §600.3205a.
Count VI of the plaintiff’s complaint was intentional infliction of emotional distress. Count VII was request for equitable, declaratory & injunctive relief; count VIII, Fraudulent Misrepresentation; count IX, quiet title; count XI, silent fraud and bad faith promises. Count XII of the claim was for breach of contract and wrongful foreclosure. Lastly, count XIII arose out of a violation of Michigan Foreclosure Law and Count XVI, violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2(b).
The defendants maintained that all of the plaintiff’s claims challenging the foreclosure sale were subject to dismissal because these claims were based on a purported breach of an oral modification agreement, therefore these claims were barred by the statute of frauds. Defendants also argued that plaintiff’s failure to redeem the property within the redemption period precluded plaintiff from raising any claims associated with the foreclosure.
January 19, 2014 | Permalink | No Comments
January 18, 2014
California Court Finds Plaintiff Lacked Standing to Bring Action
The court in deciding Mottale v. Kimball Tirey & St. John, LLP, 2013 U.S. Dist. 146293 (S.D. Cal. Oct. 9, 2013) ultimately granted the defendants’ motion to dismiss.
Plaintiff alleged unnamed investors brought an unlawful detainer action in state court foreclosed his home. Plaintiff also alleged his loans were securitized from a pool of funds provided by unknown investors who misrepresented the identities of the actual lenders. Plaintiff alleged that the assignment was invalid and fraudulent because the assignment documents were forged and defective. Plaintiff further alleged the notice of default (“NOD”) was void because BAC had “no prior recorded interest” in the Property when Recontrust recorded the NOD. Lastly, the plaintiff alleged that the NTS 2 was also fraudulent because Reconstrust had no legal right to record a substitution of trustee.
Defendants moved to dismiss plaintiff’s complaint on several grounds. First, defendants argued that the plaintiff failed to show he tendered the amount owed under default, and thus plaintiff lacked standing to challenge the foreclosure.
Second, defendants argue several courts in California have rejected plaintiff’s securitization theory. Defendants further contend that possession of the promissory note was not a pre-requisite to commence a non-judicial foreclosure proceeding. Defendants also pointed to a number of deficiencies in the complaint, including failure to joint an indispensible party and defective and insufficient claims under other statutes.
After considering both arguments, the court granted defendants’ motion to dismiss.
January 18, 2014 | Permalink | No Comments
