Tag Archives: show me the note

United States District Court Dismisses Plaintiff’s Wrongful Foreclosure, Wrongful Ejectment, and Quiet Title Claims

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The court in deciding Billete v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 155544, 2013 WL 5840105 (D. Haw. Oct. 30, 2013) dismissed with prejudice the portions of plaintiff’s actions, including: Count I (wrongful foreclosure, wrongful ejectment, and quiet title), Count III (fraud), and Count V (unfair and deceptive acts and practices) based upon the closure of Deutsche Bank’s trust, to which MERS purportedly assigned plaintiffs’ loan, and any other alleged violations of the Trust’s Pooling and Servicing Agreement (“PSA”).

The court granted in part and denied in part Deutsche Bank’s motion to dismiss plaintiff’s complaint. Specifically, the defendant’s motion was denied as to the portions of Amended Counts I, III, and V based on the assertion that the assignment was invalid because HCL was dissolved prior to the assignment.

Further, the defendant’s motion regarding the portions of the plaintiffs’ claims that alleged that the foreclosure was invalid because Deutsche Bank failed to comply with Haw. Rev. Stat. § 667-5 were denied without prejudice.

Massachusetts Land Court Finds Defendant Was Not Entitled to Service Member Relief Act

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The Massachusetts Land Court in deciding Suntrust Mortg., Inc. v. Forsberg, 2013 Mass. LCR LEXIS 159 (Mass. Land Ct. 2013) found that defendant (Alfred Forsberg) was not entitled to the protection of the Servicemembers Civil Relief Act, 50 U.S.C. §§ 510 et seq., at the time of foreclosure; and that service and publication of the notice naming SunTrust Mortgage LLC rather than SunTrust Mortgage Inc. did not invalidate the foreclosure sale.

Texas Court of Appeals Finds That Plaintiff’s Claim – That the Note and Deed of Trust Became “Split” – Has No Basis in Law

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The Court of Appeals of Texas, Ninth District in deciding Townsend v. Barrett Daffin Frappier Turner & Engel, LLP, 2013 Tex. App. LEXIS 13515, 2013 WL 5874607 (Tex. App. Beaumont Oct. 31, 2013) affirmed the lower court’s decision holding that Tex. Prop. Code Ann. § 51.0025 permitted the company to administer the foreclosure proceedings.

Plaintiff alleged conspiracy to commit fraud due to the fact that the promissory note was “split” from the deed of trust when the deed of trust was assigned through MERS. Further, the plaintiff alleged that the local clerk’s office did not have a record of an assignment into Bank of America, as successor “by merger” to BAC Home Loans Servicing, LP.

However, the court found that the plaintiff’s allegation that the note and deed of trust “split” had no basis in law. The court reasoned that the alleged agreement between the persons conducting the foreclosure accomplished neither an unlawful purpose nor a lawful purpose by unlawful means. Thus, the assignment would be binding on both plaintiff, who had notice of it, and the parties to the assignment.

California Eastern District Court Notes There is no Requirement for the Production of the Original Note to Initiate a Non-Judicial Foreclosure Sale Under California Law

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The California Eastern District Court in Castaneda et al v. Saxon Mortgage Services, Inc. et al., No. 2:2009cv01124 (E.D. Cal. 2010) dismissed the plaintiff’s claim alleging wrongful foreclosure due to foreclosing party’s lack of note.

Plaintiffs Cesar and Suzzanne Castaneda filed this action against defendants Saxon Mortgage Services, Inc., plaintiffs’ action purported to state a claim for “wrongful foreclosure” against Saxon. Plaintiffs attempted to base this claim on California Commercial Code section 3301, alleging that Saxon was not in possession of the note, was not a beneficiary, assignee or employee of the entity in possession of the note, and was therefore not a “person entitled to enforce” the security interest on the property in accordance with section 3301. (SAC ¶¶ 187-89.)

The court however found that section 3301 did not govern non-judicial foreclosures, which is governed by California Civil Code section 2924.Further, the court noted there is no requirement for the production of the original note to initiate a non-judicial foreclosure sale under California law.

Southern District of California Holds that Production of Original Note is Not Required to Proceed with a Non-Judicial Foreclosure

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The United States District Court for the Southern District of California in Putkkuri v. Recontrust Co., Case No. 08cv1919 WQH (AJB) (S.D.Cal. 2009) granted the defendants’ motion to dismiss.

The plaintiff in this case demanded written proof of the defendants’ right to proceed in foreclosure, and the plaintiff claimed that no such proof had been offered. The plaintiff alleged that the defendants “engaged in a pattern and practice of utilizing the non-judicial foreclosure procedures of this State to foreclose on properties when they do not, in fact, have the right to do so.”

The plaintiff also alleged that in pursuing non-judicial foreclosure, defendants falsely represented that they had a right to payment under plaintiff’s residential loan, which was secured by the deed of trust. However, after considering the plaintiff’s claims the court dismissed them, holding that production of the original note is not required to proceed with a non-judicial foreclosure.

Ohio Court Dismisses Plaintiff’s Claim That Defendant Lacked Standing to Foreclose

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The Ohio court in Turner v. Lerner, Sampson & Rothfuss, 776 F.Supp.2d 498 (2011) granted in part and denied in part the defendant’s motion to dismiss. The plaintiffs alleged that defendant [Lerner] engaged in the widespread practice of filing and prosecuting mortgage foreclosure actions, although many of Lerner’s clients lacked proper standing to sue.

The United States District Court, N.D. Ohio considered the plaintiff’s claims that there were violations of FDCPA and Ohio unfair practices act violations, based on the law firm’s filing of foreclosure lawsuits where its clients allegedly lacked proper standing because the law firm client’s employees executed allegedly fraudulent assignments of mortgages from non-party MERS.

In following recent Ohio case law, the court dismissed the case due to the plaintiff’s lack of standing the validity of the assignments of mortgages. The court noted that it was generally accepted law that a litigant who is not a party to an assignment lacks standing to challenge assignment of that note.

United States District Court Dismisses Plaintiff’s Contentions Against MERS, Alleging Wrongful Foreclosure and Unfair Business Practices

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The United States District Court for the Northern District of California in deciding Pantoja v. Countrywide Home Loans, et al. 5:09cv016015 (N.D. Cal., 2009) affirmed MERS’ authority to foreclose. MERS’ ability to foreclose was again affirmed in this case, contrary to plaintiff contentions alleging wrongful foreclosure, unfair business practices, failure to disclose information regarding the plaintiff’s loan, claims arising under TARP, and various violations of state law related to the Notice of Default and the trustee sale.

The Court granted MERS’ motion to dismiss on several grounds. One ground was that the court concluded that the plaintiff lacked standing to bring the suit because he failed to tender the amounts due and owing under the note. The court also held that the plaintiff did not have a private right of action under TARP, and that his claims for unfair business practices were not supported by any facts.

The court also denied the claims for wrongful foreclosure. Accordingly, the court found that under state law, there was no requirement for the production of an original promissory note prior to the initiation of a non-judicial foreclosure. So, the absence of an original promissory note in a non-judicial foreclosure does not render a foreclosure invalid.