Tag Archives: foreclose

Texas Court Dismisses Claims of Texas Debt Collection Act and Texas Property Code Violations

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The court in deciding Katz v. JP Morgan Chase Bank N.A., 2013 U.S. Dist., (S.D. Tex. Dec. 18, 2013) granted the motion to dismiss put forth by the defendant.

Plaintiff Katz alleged that defendant JP Morgan: (1) violated the Texas Property Code by failing to give proper notice because all transfers of the lien were not recorded timely; (2) was unjustly enriched because Katz may have been paying the wrong lender or account and that foreclosure would yield value above the amount owed; (3) violated or will violate the Texas Business and Commerce Code because defendants had failed to produce the original note with all transfers and assignments, thus the defendant could not enforce the mortgage without the promissory note; and that the defendant (4) violated the Texas Debt Collection Act by taking actions to collect on the note despite having no authority to collect on the note.

After methodically considering the plaintiff’s assertions, the court categorically dismissed them.

Supreme Court of New York (Kings County) Denies Summary Judgment Motion on Plaintiff’s Standing To Foreclose

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The court in deciding U.S. Bank Natl. Assn. v Steinberg, 42 Misc. 3d 1201(A) (N.Y. Sup. Ct. 2013) denied the plaintiff’s motion for summary judgment in its entirety.

The Morgan Stanley Mortgage Trust commenced this foreclosure action against the Steinbergs. Plaintiff’s unverified complaint contained a single allegation regarding its standing to maintain this foreclosure action, alleged that plaintiff was the holder of the note and mortgage, which was indorsed by blank indorsement and delivered to plaintiff prior to commencement of this action.

In regards to plaintiff’s standing to foreclose, the court found that the plaintiff was not entitled to the relief it sought because it has failed to proffer any evidence of its standing to foreclose under the Steinberg Note at the time of commencement.

Further, the court found that there were triable issues of fact regarding delivery of the Steinberg note from the originating lender and indorser, Hemisphere National Bank, to the Morgan Stanley Mortgage Trust, requiring denial of the instant summary judgment motion in its entirety.

Arizona’s Non-Judicial Foreclosure Statutes do not Require the Beneficiary to ‘Show the Note’ Before Commencing a Non-Judicial Foreclosure

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The court in deciding Famili v. Wells Fargo Bank NA, 2013 U.S. Dist. (D. Ariz., 2013) reaffirmed the holding that “Arizona’s non-judicial foreclosure statutes do not require the beneficiary to prove its authority or ‘show the note’ before the trustee may commence a non-judicial foreclosure.”

All counts alleged in plaintiff’s complaint centered on her assertion that whenever the promissory note was transferred or a change was made to the beneficiary of the deed of trust, the holder or beneficiary was required to demonstrate authority for the transfer or substitution. This court noted that each claim of breach of contract and lack of authority put forth by the plaintiff was an iteration of the “show-me-the-note” argument resolved by the Arizona Supreme Court in Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 277 P.3d 781, 782 (Ariz. 2012).

Thus, as a matter of Arizona law, the court found the plaintiff’s argument without merit.

Court Rejects Arguments that Mortgage Electronic Registration Systems, Inc. Lacked the Authority to Assign Mortgage

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The court in deciding Jones v. Nationstar Mortg. LLC, 2013 U.S. Dist. (W.D. Mich., 2013) granted defendant Nationstar’s motion for summary judgment.

Plaintiff alleged that the foreclosure of his property was unlawful for the following reasons: (1) Nationstar refused to accept his payment of $1,019.74; (2) Nationstar failed to produce the original note with the red blood signature; (3) Mortgage Electronic Registration Systems, Inc. (MERS) lacked the authority to assign the mortgage; (4) Plaintiff was not afforded sufficient due process; and (5) Nationstar lacked standing to seek foreclosure. Defendants moved for summary judgment.

Plaintiff had responded to defendant’s motion for summary judgment. However, this court found that the plaintiff had failed to submit any evidence challenging, refuting, or otherwise calling into doubt the evidence submitted by the defendant.

Instead, the court found that the plaintiff had submitted several exhibits that supported the defendant’s motion for summary judgment. Plaintiff had also submitted an affidavit in which he asserted irrelevant matters such as the fact that the defendant Nationstar “was not a human being” and defendants “did not have the rights of a natural human being.”

This court found that to the extent that plaintiff had asserted relevant facts, such did not advance plaintiff’s position.

Court Dismissed Minn. Stat. § 559.01 Claims

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The court in deciding Lubbers v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. (D. Minn., 2013) dismissed plaintiff’s claims.

Plaintiffs sought to invalidate the foreclosure of the mortgage on their home. Plaintiffs asserted three claims against defendant: (1) quiet-title, to determine adverse claims under Minn. Stat. § 559.01; (2) declaratory judgment; and (3) slander of title.

Plaintiffs alleged the following causes of action:

In count I, plaintiffs asserted a quiet title action pursuant to Minn. Stat. § 559.01, and sought a determination regarding Deutsche Bank’s adverse interest in the Property. According to plaintiffs, in a quiet title action, the burden of proof was on the mortgagee asserting an adverse interest in the property to show that both record title and legal title concur and co-exist at the same time and in the same entity to foreclose by advertisement.

In count II, plaintiffs sought a declaratory judgment under Minn. Stat. § 555.02 that the various assignments of mortgage, notices of pendency, and powers of attorney were all void, and that plaintiffs remain the owner of the property in fee title.

Count III, plaintiff alleged slander of title, plaintiffs asserted that Wilford, acted at direction of Deutsche Bank, drafted and recorded documents that were false and not executed by legally authorized persons, and that Deutsche Bank knew that the documents were false because unauthorized persons executed the power of attorneys and the assignments of mortgage.

As relief, plaintiffs sought: (1) a determination of adverse interest in the Property; (2) a declaration that the sheriff’s certificate of sale, the various assignments of mortgage, notices of pendency, and powers of attorney are all void; (3) a declaration that plaintiffs remain the owner of the Property in fee title; and (4) money damages. Id., Prayer for Relief.

After considering the plaintiff’s claims, this court granted the defendant’s motion to dismiss.

Texas Court Dismisses Claims Centered Around FDCPA and TDCPA Violations

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The court in deciding Warren v. Bank of Am., N.A., 2013 U.S. Dist. (N.D. Tex., 2013) granted defendant’s motion to dismiss all of the claims brought by the plaintiff.

Plaintiff alleged that MERS could not assign the note or deed of trust because it was not a party to, and never had a beneficial interest in, the note. Plaintiff further alleged that the note was “securitized”, thus defendant was not the owner of the note or deed of trust and had no right to foreclose on the Property. Plaintiff asserted a claim to quiet title and requested declaratory judgment and injunctive relief to restrain defendant from foreclosing and evicting him from the Property.

Although the complaint did not formally list any substantive claims, plaintiff’s request for injunctive relief contained allegations that may liberally construed as claims for wrongful foreclosure and violations of the Tex. Const. art. XVI, § 50(a)(6)(B), the Fair Debt Collection Practices Act (FDCPA), and the Texas Debt Collection Practices Act (TDCPA).

Plaintiff alleged that the defendant failed to notify him of the pending foreclosure sale, since the foreclosure notice was “returned as undeliverable” by the U.S. Postal Service (USPS). Before filing suit, he sent the defendant a request “for a verification of the debt” pursuant to the federal FDCPA and the TDCPA. Plaintiff believed that pursuant to the FDCPA, the foreclosure could not have been conducted until 30 days had passed after the date he sent his request.

Plaintiff further claimed that the defendant could not foreclose because there were defects in the original loan financing and the original foreclosure order and because defendant failed to “physically post” a copy of the foreclosure sale notice at “the courthouse” where the sale was to take place.

This court considered the plaintiff’s contentions and eventually found them without merit.

Texas Court Rejects Break-in-the-Chain Claim

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The court in deciding Martinez v. Wilmington Trust Co., 2013 U.S. Dist., (W.D. Tex. 2013) found that plaintiffs’ petition failed to state a claim to which relief could be granted and dismissed the action.

Plaintiffs argued that the 2005 assignment was “fraudulent and forged,” “manufactured,” and “void and invalid,” constituting a “break in the chain.” Plaintiffs also claimed that defendant had no standing to foreclose on the instrument.

Plaintiffs alleged the 2005 assignment from Washington Mutual to Wells Fargo was “suspicious” due to the five year delay in recordation and because “Washington Mutual was bankrupt in August of 2010 and no longer existed in 2010.” According to plaintiffs, the 2005 assignment was flawed because it was recorded “some twelve years after the original transaction.”

Defendant argued that the plaintiffs’ claims should be dismissed because plaintiffs lacked standing to complain of any alleged defects in the assignments, and, standing aside, plaintiffs’ claims lack viability. Plaintiffs argued that defendant’s motion was moot. This court ultimately found that the defendant’s motion to dismiss had merit and granted it.