August 22, 2013
Oregon Court Stops Foreclosure Pending Clarification in State Court as to MERS Stating Borrower Has “Likelihood of Success Against MERS…”
The court in Rinegard-Guirma v. Bank of America, et al., Civil Case No. 10-1065-PK, (2010) enjoined the defendants [Bank of America, et al.] from foreclosing on the plaintiff’s [Rinegard-Guirma] property.
The plaintiff, Natache D. Rinegard-Guirma, filed a Motion for a temporary restraining order and preliminary injunction seeking to enjoin a foreclosure sale of her residence. The court granted the plaintiff’s motion for preliminary injunction and continued to enjoin the foreclosure of her property until the claim regarding MERS was resolved by the state court.
August 22, 2013 | Permalink | No Comments
Florida Court Dismisses Class Action to Declare MERS in Violation of Florida Consumer Protection Laws
The debtors in Trent v. MERS, 288 Fed. App’x 571 (11th Cir. 2008) argued that Mortgage Systems sent them deceptive notices that were in violation of section 559.72(9) of the Collection Act. The debtors further argued that the notice misidentified Mortgage Systems as their “creditor.” Lastly, the debtors alleged that the lower court should have applied the “least-sophisticated-debtor” standard to determine whether these notices were misleading.
The debtors also argued that MERS violated the Collection Act when it filed foreclosure actions against them, but the court rejected this argument. The court reasoned that even if MERS engaged in “debt collection activities” under the Collection Act, MERS did not violate section 559.72(9), because MERS had the authority to file foreclosure actions.
Ultimately the court decided that the debtors’ arguments failed. The court found that under the mortgage contracts, MERS had the legal right to foreclose on the debtors’ property. Mortgage Systems was the mortgagee, the notices sent to the debtors restated information from the mortgage contracts and were not likely to mislead even the least sophisticated debtor.
August 22, 2013 | Permalink | No Comments
August 21, 2013
The Future of Affordable Housing in NYC
Yesterday, NYU’s Furman Center started a great series, #NYChousing: 10 Issues for NYC’s Next Mayor:
Over each of the next 10 days, #NYChousing will release an issue brief that presents a housing policy question that will confront the next mayor of NYC. The #NYChousing briefs do not provide policy recommendations, but instead provide the background facts, point out potential trade-offs, and pose questions to be considered in order for the candidates and the public to make informed decisions about competing policy proposals.
The first two issues are:
1. HOUSING BUDGET: Should the next mayor commit to build or rehabilitate more units of affordable housing than the Bloomberg Administration has financed?
2. PERMANENT AFFORDABILITY: Should the next mayor require developers to permanently maintain the affordability of units developed with public subsidies?
There are Twitter chats about both of these issues, with eight more to come. Tomorrow’s topic is
3. MANDATORY INCLUSIONARY ZONING: Should the next mayor adopt a mandatory inclusionary zoning program that requires developers to build or preserve affordable housing whenever they build market-rate housing?
The Center provides the following guidance for its Twitter chat:
Throughout the #NYChousing series, the Furman Center will host a series of Twitter chats to discuss each of these policy questions. Each one-hour Twitter chat will start at 11:00am ET and will focus on that day’s policy question. We encourage and welcome your participation.
What’s a Twitter chat? It’s an interactive Twitter conversation spanning a specific period of time. The Furman Center (@FurmanCenterNYU) will pose a handful questions about that day’s #NYChousing policy question. Participants will follow the conversation and tag their responses with the hashtag #NYChousing.
How do you participate? If there’s a question you want to answer or a point you want to make, simply chime in with your insight, a link to a blog post you’ve written-whatever you’d like to add to the conversation. There’s no pressure to follow along for the entire hour or to answer every single question. Be sure to include the hashtag–#NYChousing-in your response.
I will be giving my own two cents as this chat progresses.
August 21, 2013 | Permalink | No Comments
August 20, 2013
Judge Rakoff Is All FIRREA-ed Up
Law360 quoted me in a story, Rakoff Gives DOJ License To Be Bold In Bank Crackdown (behind a paywall), that reads in part,
U.S. District Judge Jed S. Rakoff’s expansive Monday opinion backing the federal government’s $1 billion mortgage fraud suit against Bank of America Corp. leaves the U.S. Department of Justice wide latitude to use its favorite financial fraud tools in cases linked to the recent financial crisis.
Judge Rakoff’s opinion expanded his May decision allowing the Justice Department’s October suit against Bank of America over lending practices during the housing bubble and financial crisis to move forward under the Financial Institutions Reform Recovery Enforcement Act, while also explaining why portions of its case using the False Claims Act failed.
The ruling, which accepted the government’s broad view of which federally insured financial institutions can be sued under FIRREA and on what grounds, gives the government further ammunition to bring such cases in the future, said Brooklyn Law School professor David Reiss.
“The federal government has taken an expansive view of this phrase, and Judge Rakoff agrees that it can be read broadly in certain circumstances, such as when the affected federally insured financial institution is the alleged wrongdoer itself,” he said.
* * *
[T]he Second Circuit will look closely at other appellate rulings related to interpreting congressional intent, as well as any rulings dealing specifically with FIRREA should an appeal come its way, as many observers expect.
However, it is likely to look closely at Judge Rakoff’s opinion when rendering an ultimate decision, which is why he considered those issues, Reiss said.
“Judge Rakoff stated that this result clearly flowed from the plain language of FIRREA, so the defendants may have a hard time on appeal,” he said.
August 20, 2013 | Permalink | No Comments
Court Rules MERS is Not Required to Register With the Secretary of State Because Enforcing Deeds of Trust Does Not Qualify as “Doing Business” in California
The court in Sulak v. Mortgage Electronic Registration Systems, Inc., et al., DCA No. E039775, (2004) found that the lower court properly denied the preliminary injunction and that the orders denying the TRO were proper.
In this case, the plaintiffs-borrowers stopped making payments on their loan and initiated a suit for damages and injunctive relief against MERS. The plaintiff claimed that stoppage of payment was proper as they alleged that MERS could not enforce or collect the note and deed of trust [1] without holding a Certificate from the Secretary of State, [2] without responding to multiple requests for validation of the debt under the Fair Debt Collection Practices Act (FDCPA), and [3] without having endorsements on the note or recorded assignments to successors in interest to the original lender.
The court rejected the plaintiff’s contentions and went further to characterized the plaintiff’s approach as “[e]ssentially, plaintiffs called ‘Olly-olly oxen free’ on the note and deed of trust, and stopped making payments.”
August 20, 2013 | Permalink | No Comments
Arizona Court Holds That MERS is the Beneficiary With the Authority to Foreclose
The court in Ciardi v. The Lending Company, Inc. et al., 2010 WL 2079735 (D. Ariz. 2010) held that that MERS is the beneficiary with the authority to foreclose. In doing so the court granted the defendant’s motion to dismiss and motion to vacate temporary restraining order.
In December 2005, plaintiff [Bianca Ciardi] borrowed $270,500 from ‘The Lending Company’ for the purpose of purchasing real property. Plaintiff also executed a promissory note and a deed of trust. Soon after, the plaintiff’s note was sold.
Plaintiff eventually defaulted on their note and their home was nearing auction in a non-judicial trustee’s sale. A lower court granted the plaintiff’s temporary restraining order (“TRO”) without notice. Defendants removed to this court, and sought to have the TRO dissolved and Plaintiffs’ first amended complaint dismissed pursuant to FRCP 12(b)(6).
In their analysis, the court noted, that the Plaintiff’s amended complaint was not the model of clarity and that the plaintiff did not allege any specific causes of action, rather much of their amended complaint was simply a narrative concerning the mortgage securitization industry.
In reaching their conclusion, the court, reviewed the plaintiff’s amended complaint. And concluded that even considering the plaintiff’s pro se status and, in so doing, construing plaintiff’s amended complaint liberally, the court found that the plaintiff failed to state a claim upon which relief may be based. Plaintiff also sought a preliminary injunction to halt the planned foreclosure of their home. However, the court reasoned, in order to obtain preliminary injunctive relief, the moving party must show a likelihood of success on the merits.
Accordingly, because the court found the plaintiff’s amended complaint failed for a failure to state a claim, the court found that the plaintiff failed in showing a likelihood of success on the merits. As such, the Court denied the plaintiff’s request for a preliminary injunction.
August 20, 2013 | Permalink | No Comments
MERS’ Assignments are Recognized as Valid as New York Appellate Court Overturns ‘N.Y. v. Alderazi’ & ‘LaSalle v. Lamy’
In the case of Bank of New York v. Eddie Sachar, et al., 95 A.D.3d 695 (2012), the court found the Bank of New York Mellon had standing to foreclose based on a MERS assignment and the delivery of the note.
The court’s ruling granted the plaintiff’s [Bank of New York Mellon] motion for summary judgment on its complaint against defendant [Sachar]. The plaintiff-bank proved its standing to commence the foreclosure action by demonstrating that it was both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action was commenced.
Although the defendant correctly alleged that, although Mortgage Electronic Registration System [MERS] validly assigned the mortgage to plaintiff, and the assignment was properly recorded in the public records, MERS had not been given any interest in the underlying note by the lender (see Bank of N.Y. v Silverberg, 86 AD3d 274, 283 [2011]).
However, the complaint and the documents annexed to plaintiff’s motion establish that an assignment of the note had been effectuated by physical delivery of the note before the current action was commenced.
August 20, 2013 | Permalink | No Comments
