December 2, 2012
Federal Bankruptcy Court in Idaho Rules that MERS was not a Party in Interest and Lacked Standing to Bring Motion for Stay of Relief
In In re Sheridan, 08-20381-TLM, 2009 WL 631355 (Bankr. D. Idaho Mar. 12, 2009), the Idaho Bankruptcy court held that a party making a motion for stay of relief must be a party in interest. This was defined to mean that the motion must be brought by one who has a pecuniary interest in the case and, in connection with secured debts, by the entity that is entitled to payment from the debtor and to enforce security for such payment. That entity is the real party in interest. It must bring the motion or, if the motion is filed by a servicer or nominee or other agent with claimed authority to bring the motion, the motion must identify and be prosecuted in the name of the real party in interest
The Court held for the bankruptcy trustee in finding that MERS, the movant, was not the party in interest and the identity of the holder of the note appears to be a fact in dispute. Movant also failed to provide an adequate record showing it was a party in interest with standing entitled to seek relief.
December 2, 2012 | Permalink | No Comments
Federal District Court in Idaho Rules for Bank, MERS, et al. in Finding Trustee was Properly Appointed
In Van Kirk v. Bank of America, 1:11-CV-00621-BLW-RE, 2012 WL 4524457 (D. Idaho Oct. 1, 2012), the District Court in Idaho agreed with the magistrate judge that, as a valid beneficiary, MERS properly assigned its interest in the deed of trust to Bank of America, which, in turn, properly appointed Northwestern successor trustee. The court found that MERS as beneficiary under the deed of trust does not create a split between the note and the deed of trust, and the agency relationship remains for subsequent parties to whom the note is properly assigned, and thus Northwest was properly appointed and is a valid Trustee of the deed of trust.
December 2, 2012 | Permalink | No Comments
Federal District Court in Idaho Rules Bank has Standing in Foreclosure Case
In Purdy v. Bank of America, No. 1:11-CV-00640-EJL-REB (D. Idaho Sept. 26, 2012), in granting Bank of America’s motions to dismiss, the Federal District Court in Idaho agreed with the magistrate judge that the securitization of a note does not affect the right to foreclose on a deed of trust. The Court was persuaded by another case that the Fair Debt Collection Practices Act (“FDCPA”) was not intended to include non-judicial foreclosure actions, as the non-judicial foreclosure process does not rise to the level of a “debt collection activity” under the FDCPA, and the plaintiff homeowner’s claim that the banks are debt collectors and in violation of the Act . Lastly, the court held the alleged defect in recording the power of attorney status of Bank of America is insufficient to invalidate the statutory non-judicial foreclosure process, with which the bank complied.
December 2, 2012 | Permalink | No Comments
Federal District Court in Idaho Rules for Bank, MERS, et al., Regarding Quiet Title Dispute
In Gilbert v. Bank of America N.A., No. 1:11-cv-00272-BLW (D. Idaho Sept. 15, 2011), the Idaho District Court granted defendant banks’ motion to dismiss, explaining that the plaintiff homeowner cannot bring a quiet title action without first tendering payment on their debt obligation. The Court further held that even if they agreed with homeowner’s argument that ReconTrust lacked legal authority to execute the notice of default due to improper appointment by Bank of America, the tender is a necessary prerequisite to their claim.
December 2, 2012 | Permalink | No Comments
Idaho Supreme Court Rules for Bank, MERS, et al., Regarding Foreclosure Proceedings under Deed of Trust
In Trotter v. Bank of New York Mellon, 152 Idaho 842, 275 P.3d 857 (2012), holding for the defendant bank, the Supreme Court of Idaho held that under the Idaho Deed of Trust Act, the foreclosure process is a non-judicial proceeding, and therefore, a trustee may initiate a foreclosure proceeding on a deed of trust without first proving ownership of the underlying note or demonstrating that the deed of trust beneficiary has requested or authorized the trustee to initiate those proceedings. The bank had acquired the note and the mortgage prior to initiating the foreclosure. The court granted the defendants’ motion to dismiss the homeowner’s request for a stay of action.
December 2, 2012 | Permalink | No Comments
Idaho District Court Rules for Homeowner in Foreclosure Dispute under Deed of Trust
In Ralph v. MetLife, No. CV 2010-0200 (D. Idaho Aug. 10, 2011), in granting partial summary judgment for the plaintiff homeowner, the court found that the defendant bank lacked authority to maintain a non-judicial foreclosure since MERS did not have a beneficial interest in the deed of trust to rightfully transfer to the defendant. Since defendant was incapable of initiating a non-judicial foreclosure, they are incapable of complying with I.C. 45-1505, the statute governing trust deed foreclosures.
December 2, 2012 | Permalink | No Comments
November 29, 2012
New Jersey Bankruptcy Court Finds that “Non-Holder” Cannot Enforce Mortgage Note
In In re Kemp, 440 B.R. 624 (Bankr. D.N.J. 2010) the debtor/plaintiff brought an adversary proceeding to expunge a proof of claim filed on behalf of Bank of New York by loan servicer Countrywide Home Loans. At all relevant times, the original note appears to have been either in the possession of Countrywide or Countrywide Servicing. Judge Wizmur found that under New Jersey’s UCC, the fact that the owner of the note (Bank of New York) never had possession of the note was fatal to its claim as it did not qualify as a “holder.” The court also found that upon the purported sale of the note and mortgage to Bank of New York, the note was not properly indorsed to the new owner. Thus, the Bank of New York could not enforce the note, and the court disallowed the bank’s claim. The court also held that the originator of the note, although in possession of the note, could not enforce the note on behalf of the bank because the bank did not have authority to enforce the note.
November 29, 2012 | Permalink | No Comments
