September 26, 2013
California Court Rules That MERS Did Not Breach the Implied Covenant of Good Faith By Initiating Non-Judicial Foreclosure
The United States District Court for the Northern District of California in Winter v. Chevy Chase Bank, No. C 09-3187 SI (N.D. Cal. 2009) found that despite the plaintiff’s allegations, MERS had not committed negligence or breached the implied covenant of good faith and fair dealing when it initiated non-judicial foreclosure proceedings against the plaintiff.
Plaintiff Gwendolyn Winter initiated an action in state court against defendants Chevy Chase Bank, Gabrielle Benedetto; U.S. Bank N.A. as Trustee for CCB Libor Series 2005-C Trust; MERS; as well as several unnamed defendants. The plaintiff alleged federal and state law claims related to the mortgage, mortgage default, foreclosure, and sale of plaintiff’s primary residence.
Plaintiff also filed suit against defendants in alleging negligence; breach of contract; breach of fiduciary duty; intentional infliction of emotional distress; fraud and misrepresentation; violations of state and federal lending laws; false advertising and unfair competition under federal and state law; and federal RICO violations. However, after considering the plaintiff’s contentions, the court eventually dismissed the claims.
September 26, 2013 | Permalink | No Comments
September 25, 2013
Another Federal Judge Can’t Take It Anymore
Magistrate Judge Brown (EDNY) issued a memorandum and order in Pandit v. Saxon Mortgage Services, Inc., CV 11-3935 (June 5, 2013) that reflects, to my mind, judicial frustration with mortgage industry companies. This frustration arises, no doubt, from the many frequent of shockingly bad behavior by such companies.
Pandit concerned a mortgage that the plaintiffs had attempted to modify through the Home Affordable Modification Program (HAMP). HAMP has been derided as an “ineffectual” response (one of many) that arose in the aftermath of the financial crisis. (1) The plaintiffs allege that Saxon deceived them throughout their participation in HAMP and seek to form a class of similar victims.
Defendant moved to limit discovery to the named plaintiffs’ claims only or, in the alternative, to “the existence and scope of a putative class.” (2) The court stated that
[i]t is ironic, then, that a defendant accused of “routinely ask[ing] homeowners to resubmit financial information on pretextual grounds; mislead[ing] homeowners over the phone; and ignor[ing] completed loan modifications in what is fairly read to be a series of steps designed to string along loan modification applicants,” , now seeks to establish procedural hurdles that may fairly be read to string along the adjudication of plaintiffs’ legal action. The proposed path appears neither just nor fair. (13, citation omitted)
With that the Court denied defendant’s motion and granted plaintiff “leave to proceed with discovery related to their claims and certification of the class.” (2)
While this is, of course, just a procedural win for plaintiffs, the judge noted that the “parties are at liberty to engage in fulsome discovery . . ..” (14) Defendant, one would assume, is not looking forward to “excessive, extravagant, overdone, immoderate, inordinate” discovery and are not looking forward to appearing before a judge who issues such an order.
[HT Scott Mollen, NYLJ]
September 25, 2013 | Permalink | No Comments
September 24, 2013
Federal Judge Declares War on Wells Fargo
Never saw this before:
And so, Wells Fargo wins on a technicality. The Court never addresses the merits of this case and expresses no opinion thereon. Still, it is appropriate to point out that, were Henning to prove his case on the merits, the conduct of Wells Fargo would be shown to be nothing short of outrageous. On the other hand, perhaps if Wells Fargo addressed the merits, its conduct would be vindicated by fair-minded American jurors. A quick visit to Wells Fargo’s website confirms that it vigorously promotes itself as consumer friendly, Loans and Programs, page within Home Lending, wellsfargo.com, https://www.wellsfargo.com/mortgage/loan-programs/ (last visited September 17, 2013); a far cry from the hard-nosed win-at-any-cost stance it has adopted here.
The technical (and now obsolete) preemption defense upon which Wells Fargo relies is an affirmative defense which can be waived. See, e.g., Tompkins v. United Healthcare of New England, 203 F.3d 90, 97 (1st Cir. 2000). The disconnect between Wells Fargo’s publicly advertised face and its actual litigation conduct here could not be more extreme. These facts lead this Court to inquire whether Wells Fargo wishes to address Henning’s claims on the merits. After all, it may be that Wells Fargo has done nothing wrong.
ACCORDINGLY, it is ORDERED that Wells Fargo, within 30 days of the date of this order, shall submit a corporate resolution bearing the signature of its president and a majority of its board of directors that it stands behind the conduct of its skilled attorneys and wishes to avail itself of the technical preemption defense to defeat Henning’s claim.
Should it do so, judgment will enter for Wells Fargo. If no such resolution is filed, the Court will deem the preemption defense waived and both Wells Fargo and Henning will have the opportunity to address the merits (i.e., what really happened) at a trial before an American jury. (36-37)
So ends District Judge Young’s (D. Mass.) opinion in Henning v. Wachovia Mortgage, F.S.B., n/k/a Wells Fargo Bank, N.A., No. 11-11428 (Sept. 17, 2013). Henning brought suit against his lender, which sought to have it dismissed, arguing in large part that the state law claims are preempted by the federal Home Owners’ Loan Act.
Judge Young does not make clear the basis for his authority to require such a resolution from Wells Fargo. I am guessing that we will see a motion for reconsideration pretty soon.
[HT April Charney]
September 24, 2013 | Permalink | No Comments
September 23, 2013
Deane Finds Us East of Eden
Last week, I discussed a NYLJ article about the “Show Me The Note” argument in New York. The article discussed a recent case, Bank of N.Y. Mellon v. Deane, 2013 Slip Op. 23244 (Sup. Ct. Kings Country July 11, 2013). Brad and I have earlier noted that “many scholars and leaders of the bar are befuddled by courts’ failure to do a comprehensive analysis under the UCC as part of their reasoning in mortgage enforcement cases . . ..” As if to prove us wrong, Judge Battaglia has taken on the UCC in Deane even while acknowledging that “quotation of the Code, or even its citation, has virtually disappeared from the caselaw on this part of negotiable instruments law, at least where addressed in mortgage foreclosure actions.” (5) Judge Battaglia also notes how NY mortgage enforcement caselaw diverges from the contemporary UCC caselaw.
Judge Battaglia framed the issue of standing as follows:
As recently summarized by the Second Department:”In order to commence a foreclosure action, the plaintiff must have a legal or equitable interest in the subject mortgage…A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note prior to commencement of the action with the filing of the complaint…Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.” (GRP Loan, LLC v. Taylor, 95 AD3d at 1173 [internal quotation marks and citations omitted] [emphasis added].) (2)
He continued, “the cursory treatment of the standing question in the memorandum of law evidences a misunderstanding of the general law of negotiable instruments in its equation of the status as “holder” to mere possession of the instrument. The core of the law of negotiable instruments is found in Article 3 of the Uniform Commercial Code . . ..” (3) He finds that the plaintiff has not established that it is a holder or a nonholder in possession who has the rights of a holder. He states that
To allow an assignee to sue without possession of the note, therefore, would be inconsistent with Revised Article 3, and put New York out-of-step with the 49 states that have adopted the revision, including, in particular, a conception of “transfer” as “deliver[y] by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument” (see Revised UCC §3-203 [1].) That misstep, however, if such it is, has apparently already been taken. (7)
Doing its best to reconcile the the mortgage enforcement and UCC caselaw, Judge Battaglia concludes that
in the usual case, a plaintiff has “standing” to prosecute a mortgage foreclosure action where, at the time the action is commenced: (1) the plaintiff is the holder of the note (see NYUCC §1-201 [20]); or (2) the plaintiff has possession of the note by delivery (see NYUCC §1-201[14]), from a person entitled to enforce it, for the purpose of giving the plaintiff the right to enforce it; or (3) the plaintiff has been assigned the note, by a person entitled to enforce it, for the purpose of giving the plaintiff the right to collect the debt evidenced by the note, and the plaintiff tenders the note at the time of any judgment. (8)
New York’s law in this area is not satisfying and it looks to me like courts need to make a concerted effort to synthesize UCC law with foreclosure law. Otherwise, mortgage litigants are left to wander like Cain in the land of Nod, east of Eden, not knowing what law governs their disputes.
September 23, 2013 | Permalink | No Comments
United States District Court for the Central District of California Finds hat MERS Was the Beneficiary and Entitled to Foreclose
The United States District Court for the Central District of California in Derakhshan v. MERS, No. SACV08-1185 AG (2009) found that MERS was the beneficiary and therefore entitled to foreclose. This case, like many others before this court, involved the sale of an option adjustable rate mortgage loan.
The court held that MERS was the named beneficiary in the deed of trust. By signing the deed, the plaintiff thus agreed that MERS would be the beneficiary and act as nominee for the lender. Further, the deed explicitly stated that the borrower understood and agreed that MERS held only legal title and had the right: to exercise any or all of those interests, including but not limited to, the right to foreclose and sell the property.
Thus, the plaintiff explicitly authorized MERS to act as beneficiary with the right to foreclose on the property.
September 23, 2013 | Permalink | No Comments
September 21, 2013
Court Rules That When MERS Assigned its Interest, it Did Not Commit Negligence Against the Borrower
The United States District Court of the Eastern District of California in deciding Baisa v. Indymac, MERS, et al, No. Civ. 2:09-1464 (E.D. Cal. 2009), found that MERS had the right to execute an assignment of the deed of trust and was not a debt collector for the purposes of California’s Rosenthal Act. The act of assigning a deed of trust did not constitute debt collection.
Plaintiff’s first cause of action alleged that MERS and other defendants violated the Rosenthal Fair Debt Collection Practices Act (“RFDCPA” or “Rosenthal Act”), 1 Cal. Civ. Code §§ 1788 et seq. (SAC 9.). However the court found that plaintiffs failed to plead facts necessary to support the inference that MERS is a “debt collector” under the RFDCPA; specifically, that MERS engages in “debt collection,” that the deed of trust memorializes a “consumer credit transaction,” and that the amount owed under the deed of trust is a “consumer debt” according to the RFDCPA
Furthermore, the court found that when MERS assigned its interest, it did not commit negligence against the borrower nor make a misrepresentation or fraudulent claim to the borrower.
September 21, 2013 | Permalink | No Comments
Court Rules That MERS, as the Beneficiary on the Deed of Trust, Had the Authority to Make a Substitution of Trustee
The United States District Court of the Northern District of California in deciding Lomboy v. SCME Mortgage Bankers, Inc. et al, No. C-09-1160 SC (N.D. Cal. 2009) held that under California law, MERS was not required to register to do business in California. The court also ruled that MERS is able to foreclose.
As her first cause of action, Plaintiff sought declaratory relief against SCME, MERS, Quality, and Aurora. Plaintiff asserted that she was the true equitable owner of the house, that the defendants were not holders of the promissory note, which should accompany the deed of trust, and that MERS has no right to foreclose on the house.
Plaintiff Imelda Lomboy also brought an action alleging various improprieties surrounding the then-imminent foreclosure of property that was used as security for a loan. Plaintiff alleges that the defendants “fraudulently obtained the deed of trust.”
The court in rejecting the plaintiff’s contentions note that MERS, as the beneficiary on the deed of trust, had the authority to make a substitution of trustee. The court further noted, that the substitute trustee appointed by MERS was able to carry out the foreclosure.
September 21, 2013 | Permalink | No Comments
