Tag Archives: assignment

Ohio Court Decides Bank’s Possession of Note was Properly Shown

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The court in deciding M & T Bank v. Strawn, 2013-Ohio-5845 (Ohio Ct. App., Trumbull County, 2013) ultimately affirmed the lower court’s decision.

The court decided that the bank’s possession of the note was shown by the affidavit, along with attached copies of the note endorsed to the bank, and the court found that one in possession of a note endorsed to that party was a holder, for purposes of R.C. 1301.201(B)(21)(a). As such the court decided that the bank was thus entitled to enforce the instrument under R.C. 1303.31.

The court found that the affidavit for the bank clearly stated that the bank had been in possession of the original promissory note, and the affidavit was sufficient for the lower court to have held that the affiant had personal knowledge. The court further noted that nothing suggested that voided endorsements affected the bank’s status as a holder, and thus it did not create an issue of fact.

Lastly the court found that the bank acquired an equitable interest in the mortgage when it became a holder of the note, regardless of whether the mortgage was actually or validly assigned or delivered. Based on these conclusions this court affirmed the lower court’s judgment.

Ohio Court Decided There Was no Basis to Challenge Standing Through a Civ.R. 60(B) Motion

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The court in deciding Deutsche Bank Nat’l Trust Co. v. Santisi, 2013-Ohio-5848 (Ohio Ct. App., Trumbull County, 2013) ultimately denied the motion to vacate and affirmed the lower court’s decision.

Santisi appealed the lower court’s decision and raised the following assignments of error:

1) plaintiff (appellee) failed to present an affidavit or any other record evidence sufficient to meet its burden to establish it had standing to pursue a foreclosure action.

2) Plaintiff (appellee) failed to establish standing as there was no admissible evidence to explain material inconsistencies regarding the promissory note.

The bank asserted its standing to foreclose the mortgage by alleging that it was the holder and owner of a note in its complaint, and that allegation was legally sufficient to establish the bank’s standing to foreclose. The bank also provided evidence of standing by virtue of holding the note. The also bank established its interest in both the note and the mortgage, which was not disputed by the mortgagor prior to judgment and, thus, properly invoked the trial court’s jurisdiction. Based on these facts this court upheld the lower court’s decision.

 

Georgia Court Denies Plaintiffs’ Motion for Reconsideration

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The court in deciding White v. Bank of Am., N.A., 2013 U.S. Dist. (N.D. Ga., 2013) ultimately denied the plaintiff’s motion for reconsideration, therein upholding the decision of the lower court.

Plaintiffs alleged that because BANA did not hold the note and it was not the assignee of the security deed it lacked the authority to foreclose. Plaintiffs alleged further that defendants falsely represented that BANA was the plaintiffs’ secured creditor. Plaintiffs sought injunctive relief and compensatory and punitive damages.

On May 10, 2013, the lower court granted the defendants’ motions to dismiss plaintiffs’ complaint. The lower court found that the plaintiffs executed the security deed with the power of sale in favor of MERS, and that MERS assigned its rights under the security deed to BACHLS; that BACHLS merged into BANA; and that, as a result of the merger, BANA acquired the rights and interests of BACHLS, including the security deed.

The lower court concluded that BANA, as holder of the Note and Security Deed, was entitled to foreclose on the property and that the plaintiffs had not, and could not, state a claim for relief under any legal theory based on BANA’s alleged lack of authority to foreclose on the Property.

On appeal, the plaintiffs reassert their argument that BANA lacked standing to foreclose on the property because it did not also hold the note. Plaintiffs argued that the note was “unauthenticated” and thus the endorsement from First Option to Countrywide is not valid.

After considering the plaintiff’s contentions, this court found that the plaintiffs’ motion for reconsideration on this basis should be denied.

Appeals of Michigan Dismisses Fraud and Improper Assignment Claims

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The court in deciding Bank of N.Y. Mellon Trust Co. Nat’l Ass’n v. Robinson, 2013 Mich. App. (Mich. Ct. App. 2013) ultimately dismissed the Robinson’s claims, therein affirming the decision from the lower court.

The Robinsons raised two issues. First, the Robinsons argued that MERS, through its predecessor, committed fraud in the execution of the mortgage. Second, the Robinsons allege that plaintiff did not have the right to foreclose because there is no evidence of record that the Robinsons’ note was assigned to plaintiff. After considering the Robinson’s arguments, the court dismissed them.

 

United States District Court Dismisses RICO and FDCPA Claims

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The court in deciding Koenig v. Bank of Am., N.A., 2013 U.S. Dist. (E.D. Cal., 2013) ultimately granted the defendant’s motion to dismiss.

Plaintiff Philip A. Koenig commenced this action against defendant Bank of America. Plaintiff alleged causes of action for violations of the Fair Debt Collections Practices Act (“FDCPA”) and the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Plaintiff also brought claim requesting declaratory relief against the defendant. Defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). After considering the arguments, the court granted the defendant’s motion to dismiss.

The theory underlying the totality of plaintiff’s complaint was that defendant had no right to affect foreclosure on the property. The second cause of action was a request for declaratory relief. Plaintiff sought a declaration from the court indicating that the defendant did not have and had never had any interest in the property.

Plaintiff alleged that the entity that intended to foreclose on the property was not the lender that originated any mortgage and was not an assignee of any mortgagee or a duly appointed trustee, thus the entity lacked the legal authority to foreclose.

After consider the plaintiff’s arguments, the court rejected them and granted the defendant’s motion to dismiss.

Ohio Court Dismisses Claims Asserting that MERS Could Not Act as Nominee

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The court in deciding Cline v. Mortg. Elec. Registration Sys., 2013-Ohio-5706 (Ohio Ct. App., Franklin County 2013) overruled appellant’s seven assignments of error, thus this court upheld the judgment of the lower court.

The lower court granted MERS’ motion after concluding that, because appellant voluntarily signed the mortgage and agreed to the existing lien, the mortgage could not constitute a cloud on appellant’s title subject to R.C. 5303.01. On appeal, appellant argued the original loan was originated by CBSK, a company no longer in business; therefore, any agreement between CBSK and MERS that MERS would act as nominee for CBSK is void.

In appellant’s view, because the agreement between CBSK and MERS was void, the note and mortgage were no longer in effect and constituted a cloud upon her title. Appellant argued that, unlike Unger, which concerned mortgage assignments, this matter was different as it concerns the underlying mortgage itself.

Upon review, this court found that the appellant’s complaint failed to state a claim upon which relief can be granted, and, thus, the trial court did not err in dismissing appellant’s complaint pursuant to Civ.R. 12(B)(6). Accordingly, all of the appellant’s claims were overruled.

Illinois Court Finds that Assignment was Proper, Thus Wells Fargo Could Foreclose

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The court in deciding Wells Fargo Bank, N.A. v. Abatangelo, 2013 IL App (1st) 130423-U (Ill. App. Ct. 1st Dist. 2013) affirmed the lower court’s ruling in favor of plaintiff Wells Fargo. The court determined Wells Fargo had standing to bring the foreclosure action.

Mr. Abatangelo challenged the lower court’s grant of summary judgment on Wells Fargo’s foreclosure complaint, specifically its finding that Wells Fargo had standing to foreclose on the mortgage. On this appeal, Mr. Abatangelo contended that the lower court erred in granting summary judgment because (1) the mortgage contract did not properly assign the right to foreclose to Wells Fargo; and (2) the trial court improperly considered new arguments raised by Wells Fargo for the first time in a reply brief in support of their motion to dismiss.

After considering the arguments put forward by Abatangelo the court affirmed the lower court decision.