Tag Archives: assignment

Ohio Court Finds That Plaintiffs Were Not Bona Fide Purchasers

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The Court of Appeals of Ohio, Fifth Appellate District, in deciding Bank of N.Y. Mellon v. Casey, 2013-Ohio-4686 (Ohio Ct. App., Fairfield County Oct. 21, 2013) affirmed the lower court’s judgment and held that the plaintiffs were not bona fide purchasers and the defendants had standing.

The court found that under the doctrine of lis pendens plaintiffs were not bona fide purchasers of a property encumbered by the mortgage because they took title during the pendency of a declaratory judgment action to which they were a party. Consequently, they did not take the property free from unrecorded liens. The claim that the mortgage was invalid was barred by res judicata as the validity of the mortgage was fully litigated in the declaratory judgment action.

Lastly, the court found that the defendant had standing to seek the foreclosure, as it was the current holder of the note and mortgage, and that it had physical possession of the note and mortgage documents.

North Carolina Court Dismisses Plaintiff’s Claims of Fraud Against MERS, Bank of America, & Trustee Services of Carolina

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The court in deciding Porterfield v. JP Morgan Chase Bank, Nat’l Ass’n, 2013 U.S. Dist. LEXIS 152318 (E.D.N.C. 2013) dismissed plaintiff’s claims and granted the defendant’s motion to dismiss.

Plaintiff asserted the following claims: (1) wrongful foreclosure; (2) fraud; (3) fraudulent misrepresentation; (4) fraud by use of MERS; (5) fraud through securitization; (6) promissory fraud; (7) unfair and deceptive trade practices; (8) violations of the Fair Debt Collections and Practices Act; (9) violations of the Real Estate Settlement Procedures Act; (10) slander of title; and (11) a quiet title action.

JPMorgan Chase Bank, N.A. and MERS motioned to dismiss pursuant to FED. R. CIV. P. 12(b)(6) and defendant Trustee Services of Carolina motioned to dismiss to Fed. R. Civ. P. 12(b)(6).

The court ultimately granted the defendants’ motions. Plaintiff’s claims against JPMorgan Chase Bank, MERS, and Trustee Services of Carolina, LLC were dismissed with prejudice.

Michigan Court Finds All Six of Plaintiff’s Claims Without Merit

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The court in deciding McGlade v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 152610 (E.D. Mich. Oct. 24, 2013) granted defendant Bank of America, N.A.’s motion to dismiss.

Plaintiff, McGlade brought six causes of action: Count I-Fraudulent Misrepresentation; Count II-Estoppel; Count III-Negligence; Count IV-Violation of the state Regulation of Collection Practices Act; Count V-Violation of the Fair Debt Collection Practices Act; and Count VI-violation of the Michigan Consumer Protection Act.

The court in granting defendant summary judgment noted that the plaintiff’s factual basis for the fraudulent misrepresentation claim that defendant “knew or should have known that she would not qualify for a loan modification when she inquired about one” was insufficient.

Ultimately, the court found that the misconduct alleged by McGlade did not relate to the foreclosure procedure itself, and therefore she had failed to state a claim for which relief can be granted.

Tennessee Court Grants Defendant’s Motion for Summary Judgment as Wells Fargo Had Ownership Interest in the Note & Deed

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The court in deciding McKee v. Am. Brokers Conduit, 2013 U.S. Dist. LEXIS 152657 (W.D. Tenn. 2013) granted Wells Fargo’s motion for summary judgment.

Plaintiffs claimed that (1) Wells Fargo didn’t have lawful ownership or a security interest in the property because the note and deed of trust were unlawfully sold; (2) Leak was not authorized to execute the assignment from MERS to Wells Fargo; (3) Wells Fargo could not show possession or ownership of the original note or deed and therefore had an imperfect security interest; and (4) ABC had no authority to execute the assignment because it was in bankruptcy proceedings at the time of the assignment.

The court found the plaintiff’s line of reasoning factually incorrect. The court noted that the note was made payable to Wells Fargo and the deed was assigned to Wells Fargo. Both the endorsed note and the assignment agreement were recorded. Furthermore, counsel for Wells Fargo had the original note in his possession. Finally, both the note and the deed allowed for such an assignment. Plaintiffs had presented the court with no evidence to rebut these facts. As such, the plaintiffs had not offered enough to challenge Wells Fargo’s enforcement of the note and the court granted summary judgment.

Michigan Court Finds Plaintiff’s Claim that Foreclosure Proceedings Violated Mich. Comp. Laws §§ 600.3204(1) and (3) Unpersuasive

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The court in deciding Anderson v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 152765 (E.D. Mich. Oct. 24, 2013) dismissed plaintiff’s claims that foreclosure violated Michigan state law.

Plaintiff sought a declaratory judgment that foreclosure proceedings violated Mich. Comp. Laws §§ 600.3204(1) and (3). The basis of plaintiff’s claim was a challenge to the assignment of the mortgage from MERS to defendant. Plaintiff alleged that this assignment was invalid. Ultimately, the court found this argument has no merit.

Plaintiff contended that defendant did not have standing to foreclose on the property because the assignment of the mortgage from MERS to defendant was invalid. Plaintiff argued that TBW was no longer in business at the time MERS assigned the mortgage to the defendant. Therefore, as the plaintiff reasoned, the assignment was invalid. Additionally, plaintiff complained that the assignment was “robo-signed” and that it was insufficient to create a record chain of title.

The court concluded that the plaintiff was wrong. The court noted that the Michigan Supreme Court had made clear that, under Michigan law, a mortgage granted to MERS as nominee for lender and lender’s successors and assigns was a valid and assignable mortgage.

Washington Court Denied the Plaintiff’s Motion for Preliminary Injunction

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The court in deciding Cameron v. Acceptance Capital Mortg. Corp., 2013 U.S. Dist. LEXIS 151134 (W.D. Wash. 2013) denied the plaintiff’s motion for preliminary injunction.

Nearly all of plaintiffs’ claims turn on a single question: whether, under Washington law, Flagstar had legal authority to appoint NWTS as successor trustee. Plaintiffs first asserted that Flagstar could not have become a beneficiary with the power to appoint a successor trustee. Plaintiff reasoned that under Washington state law, MERS was an unlawful initial beneficiary and thus lacked the power to assign its interest to Flagstar.

In their reply brief plaintiffs raised an additional claim alleging that even if Flagstar held the note, it had sold it to Fannie Mae before appointing NWTS as successor trustee, thus it shed its authority to make this appointment when it did so. Ultimately, the Court finds both arguments unpersuasive.

First, the court found that this case is distinguishable from the cited Washington state case law, as Flagstar derived its authority to enforce the note from its position as the note holder, not from its position as assigned beneficiary. The court found plaintiffs’ second allegation, were raised improperly only upon reply, was similarly unconvincing as it rests on a misunderstanding of the law.

Texas Court Finds Plaintiff’s “Split-the-Note” Theory Without Merit

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The court in deciding Morlock, L.L.C. v. JPMorgan Chase Bank, N.A., 2013 U.S. Dist. LEXIS 153386 (S.D. Tex. Oct. 25, 2013) ultimately dismissed plaintiff’s bifurcation theory based complaint.

Plaintiff alleged that the deed of trust had been “executed and delivered . . . to secure MERS” and that it “was allegedly assigned to defendant Chase by MERS.” Plaintiff further alleged, the deed of trust and assignment, although appearing valid on its face, was invalid and of no force or effect because, MERS was not the holder of the original note that was secured by the deed of trust.

Accordingly, the plaintiff argued, the assignment by MERS was not valid and defendant Chase was not the owner and holder of the note. Therefore, Chase had no right or authority to post the property for a trustee’s Sale.

Chase alleged that the plaintiff’s argument against the validity of the assignment came from the theory that the ‘bifurcation’ of the note and deed of trust renders the deed of trust invalid. Chase argued that Texas courts have rejected the “bifurcation theory” and that plaintiff had therefore failed to state a claim.

The court ultimately granted Chase’s Rule 12(b)(6) motion to dismiss and dismissed the action with prejudice.