Tag Archives: assignment

Kansas Court of Appeals Finds Note Splitting Argument Lacked Merit

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The court in deciding Wells Fargo Bank, N.A. v. Richards, 2013 Kan. App. 1160 (Kan. Ct. App. 2013) ultimately upheld the lower court’s decision.

The plaintiff [Chester E. Richards, Jr.], appealed the lower court’s decision which granted summary judgment to Wells Fargo.

Plaintiff had asserted (1) Wells Fargo lacked standing to bring the foreclosure action; (2) the lower court erred in holding Wells Fargo’s possession of the promissory note he signed was insufficient to enforce and foreclose the mortgage it secures; (3) Wells Fargo did not experience/suffer a default; (4) there was no contract because the note and mortgage were split; and (5) Richards was not afforded due process.

The court examined the record and considered the arguments of both the parties and held that there was no merit to any of the plaintiffs’ arguments. Consequently, the court affirmed the decision from the lower court.

 

California Court Upholds Summary Judgment Against Plaintiff, Dismissing California Uniform Commercial Code section 9313 Violations

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The court in deciding Wolford v. Am. Home Mortg. Servicing, 2013 Cal. App. Unpub. LEXIS 7307 (Cal. App. 2d Dist. 2013) ultimately granted summary judgment in favor of defendants. AHMSI and Wells Fargo met their threshold burden to show they satisfied the requirements necessary for non-judicial foreclosure, and appellant failed to raise a triable issue of material fact.

The plaintiff’s complaint alleged causes of action for declaratory relief; injunctive relief; determination of lien pursuant to California Uniform Commercial Code section 9313; breach of contract and the implied covenant of good faith and fair dealing; violation of the Truth in Lending Act (15 U.S.C. § 1601 et seq.); violation of the Real Estate Settlement and Procedures Act (12 U.S.C. § 2601 et seq.); rescission; unconscionability; and quiet title.

The lower court dismissed the plaintiff’s initial claims as summary judgment was granted in favor of the defendants. Appellant contended the denial of summary judgment in the related unlawful detainer action and evidence of irregularities in the foreclosure process demonstrated triable issues of material fact warranting the denial of summary judgment. However, this court in upholding the lower court’s decision, found that there was no merit to the plaintiff’s contentions.

 

Missouri Court Dismisses Real Estate Settlement Procedures Act and Home Ownership Equity Protection Act Violation Claims Brought Against Nationstar Mortgage, LLC and MERS

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The court in deciding White v. CTX Mortg., LLC, 2013 U.S. Dist. LEXIS 146589 (W.D. Mo. 2013) ultimately granted the defendant’s motion to dismiss. The plaintiff’s complaint asserted that the chain of title had been broken. Consequently, “title was not clear enough” for CTX to foreclose on the property.

Plaintiffs raised eight claims: (1) “Predatory Lending”; (2) “Servicer Fraud”; (3) violations of the Home Ownership Equity Protection Act (“HOEPA”), 15 U.S.C. § 1639, et seq.; (4) violations  [5] of the Real Estate Settlement Procedures Act (“RESPA”), 15 U.S.C. § 2601, et seq.; (5) “Breach of Fiduciary Duty”; (6) “Identity Theft”; (7) Civil Rico; and (8) quiet title to real property.

For relief, plaintiffs requested economic damages; a declaratory judgment identifying the “owner” of the note and clarifying whether the deed was actually security for the loan; and injunctive relief conveying the property to plaintiffs or a judgment quieting title to plaintiffs’ property.

At the outset, the court made several general observations about the complaint. In each count, plaintiffs had substituted legal conclusions for facts. Subsequently, Nationstar and MERS argued that the court should dismiss all eight counts because they (1) failed to state a claim upon which relief can be granted, or (2) were barred by the applicable statute of limitations. Ultimately, the plaintiff’s claims were dismissed.

 

Nevada Court Dismisses Show-me-the-Note Action Brought Against Chase and MERS

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The court in Leong v. JPMorgan Chase, 2013 U.S. Dist. LEXIS 144678 (D. Nev. Oct. 7, 2013) granted defendants’ motion to dismiss.

This action arose out of the foreclosure proceedings initiated against the property of pro se Plaintiff Teresa Leong. Pending before the court was a motion to dismiss filed by defendants JPMorgan Chase Bank, N.A. (“Chase”) and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively, “Defendants”). Plaintiff continued to request “to see my original documents Note and Deed.”

Plaintiff insisted that defendant failed to provide the original note. The court found that the only possibly relevant Nevada statute requiring the presentation of the original note or a certified copy is at a Foreclosure Mediation. Nev. Rev. Stat. § 107.086(4). Moreover, the court noted that it treats copies in the same way as it treats originals: “a duplicate is admissible to the same extent as an original.” Nev. Rev. Stat. § 52.245.

The court noted that the defendants correctly point out that plaintiff failed to cite to any authority that requires defendants to produce the original note, and defendants additionally provided non-binding legal authority to the contrary. As such, the court dismissed this cause of action with prejudice.

Wisconsin Court Grants Summary Judgment in Favor of GMAC

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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.

California Appeals Court Affirms Lower Court’s Decision to Sustain Defendant’s Demurrer

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The court in deciding Nehme v. Bac Home Loans Servicing, 2013 Cal. App. Unpub. LEXIS 7366 (Cal. App. 2d Dist. Oct. 15, 2013) affirmed the lower court decision.

Plaintiff (William Nehme) brought this action for fraud, rescission, and other claims after he lost his home through foreclosure. This case was an appeal of a lower court judgment entered in favor of defendants Bank of America, N.A. as successor by merger to BAC Home Loans Servicing, LP; Recon Trust Company, N.A.; Landsafe Title of California, Inc. erroneously named as Landsafe Title Corporation; Mortgage Electronic Registration Systems, Inc.; and MERSCORP, Inc., after the trial court sustained defendants’ demurrer without leave to amend. After considering the appeal, the court affirmed the lower court’s decision.

On appeal Nehme challenged only the trial court’s rulings on the first cause of action for fraud by bait and switch, second cause of action for rescission, and sixth cause of action for unfair business practices. Nehme argued that Countrywide committed fraud by substituting a deed of trust with a power of sale for the mortgage Nehme had requested, and that he signed the deed of trust by mistake.

After considering the plaintiff’s second round of arguments, the court concluded that, even after three attempts, Nehme failed to allege facts sufficient to state claims for fraud, rescission, and unfair competition, and therefore the court affirm the lower court’s judgment.

Ohio Appeals Court Affirms Lower Court Decision Granting Summary Judgement in Favor of Bank of America

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The court in deciding Bank of Am., N.A. v. Hizer, 2013-Ohio-4621 (Ohio Ct. App., Lucas County 2013) ultimately granted the defendant’s motion for summary judgment.

This case was an appeal from a judgment of the Lucas County Court of Common Pleas that granted summary judgment in favor of appellee Bank of America, N.A. in a foreclosure action filed by the bank after appellants Jennifer and Brian Hizer defaulted in payment on a note and mortgage held by the bank. After considering the appellants appeal, the court affirmed the judgment of the trial court.

This case involved a mortgage foreclosure action, the court affirmed a lower court decision that there was no abuse in discretion by denying appellants’ motion to strike the affidavit of appellee bank’s vice president, whose identity the bank failed to disclose in discovery and whom appellants were thus unable to depose, because they did not complain of the discovery violation until the bank moved for summary judgment, and did not show that they were prejudiced by their inability to depose the vice president.

The court noted that since appellants did not deny executing the note and mortgage or dispute the authenticity of the documents the bank offered, and produced no evidence to dispute the assignment of these documents to the bank. The evidence established that the bank was the holder of the note and mortgage. Thus, the court affirmed the lower court’s ruling in that there was no error in permitting the bank summary judgment.