New Jersey Court Finds that Plaintiff had Both Possession of the Original Note and Assignment

The court in deciding Assets Recovery 23, LLC v. Odoemene, 2013 N.J. Super. (App.Div., 2013) this court affirmed the ruling of the lower court that the plaintiff was permitted to foreclose.

In this foreclosure matter, defendants Emmanuel C. Odoemene and Doris D. Odoemene appealed from a June 11, 2012 Chancery Division order, which granted summary judgment to plaintiff Assets Recovery 23, LLC and dismissed defendants’ answer, and denied defendants’ cross-motion to dismiss the complaint. After considering the plaintiff’s contentions this court affirmed the decision of the lower court.

On appeal, defendants merely reiterated that plaintiff lacked standing because it did not physically possess the note at the time it filed the foreclosure complaint. They also argued that the April 2011 assignment did not properly assign the note; however, the court found this argument to be lacking.

This court also found that the evidence in this case clearly established that plaintiff had standing when it filed the foreclosure complaint. Here, the plaintiff had both possession of the original note and an assignment of the mortgage and note prior to filing the complaint.

Tennessee Court Rejected MERS’ Argument that Sale of Property Should be Invalidated

The court in deciding Mortgage Elec. Registration Sys. v. Ditto, 2014 Tenn. App. (Tenn. Ct. App., 2014) affirmed the judgment of the lower court.

This appeal involved the purchase of property at a tax sale. MERS filed suit against purchaser to invalidate his purchase of property because it had not received notice of the sale even though it was listed as a beneficiary or nominee on the deed of trust.

Purchaser claimed that MERS was not entitled to notice because MERS did not have an interest in the property. Purchaser also alleged that MERS failed to properly commence its lawsuit because it did not remit the proper funds pursuant to Tennessee Code Annotated section 67-5-2504(c).

The trial court refused to set aside the tax sale, holding that the applicable notice requirements were met and that the purchaser was the holder of legal title to the property. MERS appealed the lower court’s decision, however this court affirmed the decision of the lower court.

Since appellant was never given an independent interest in the property, and it did not suffer an injury by the sale of the property at issue, and the only injury suffered by appellant related to the future effect the case could have on its business model, which was not a distinct and palpable injury capable of being redressed by the court, the trial court’s grant of the purchaser’s motion for judgment on the pleadings was properly granted as appellant did not have standing to file suit to set aside the tax sale of the property for lack of notice under Tenn. Code Ann. § 67-5-2502(c) and the Due Process Clause of the Fourteenth Amendment.

The court found that the failure to tender the appropriate funds when filing the petition to set aside the sale under Tenn. Code Ann. § 67-5-2504(c) was not a prerequisite for relief.

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

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.

Georgia Court Denies Plaintiffs’ Motion for Reconsideration

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.

Kansas Court of Appeals Upholds Summary Judgment in Favor of Wells Fargo

The Court of Appeals of Kansas in deciding Wells Fargo Bank, N.A. v. Richards, 2013 Kan. App. LEXIS 1160 (Kan. Ct. App. 2013) ultimately affirmed the lower court’s granting of summary judgment for Wells Fargo.

Plaintiff appealed the lower court’s decision granting summary to Wells Fargo Bank.

In this appeal, plaintiff asserted that (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.

After examining the record and considering the arguments of the parties, this court held that there was no merit to any of Richards’ arguments. Consequently, this court affirmed the lower court.

 

 

Michigan Appeals Court Upholds Summary Judgment and Finds that Bank’s Purchase did not Violate MCL 600.3228

The court in deciding Bank of N.Y. Mellon Trust Co. Nat’l Ass’n v. Robinson, 2013 Mich. App. 2170 (Mich. Ct. App. 2013) upheld the lower court’s grant of summary judgment.

In this action for possession of a foreclosed property, defendants appealed as of the summary disposition that the lower court granted in favor of the plaintiff on the defendant’s counterclaims. After considering the defendant’s arguments the court affirmed the lower court’s ruling.

On appeal, the defendant raised two issues with regard to the underlying mortgage. First, the defendant argued that the plaintiff, through its predecessor, committed fraud in the execution of the mortgage. Second, the defendant alleged that the plaintiff did not have the right to foreclose because there was no evidence of record that the defendant’s note was assigned to plaintiff. The defendant also argued that the bank’s purchase violated MCL 600.3228, which required that a purchase by a mortgagee at a foreclosure sale be made “fairly and in good faith.”

After considering the defendant’s contentions the court ultimately affirmed the lower court’s ruling.

Nevada Court Dismisses TILA and Fraud Claims Brought Against Chase and MERS

The court in deciding Leong v. JPMorgan Chase, 2013 U.S. Dist. LEXIS 144678 (D. Nev. 2013) ultimately granted the defendant’s motion to dismiss.

This action arose out of the foreclosure proceedings initiated against the property of the plaintiff Teresa Leong. Defendants Chase and MERS filed a motion to dismiss plaintiff’s action. Plaintiff alleged two causes of action, one of which was fraud: “wrongful use of a non existent co-borrower” and the other was “fraudulent documentation.” Plaintiff also requested, “to see her original documents, note and deed.”

After considering the plaintiff’s contentions, the court found that the plaintiff failed to allege that she was current on her mortgage payments or had otherwise satisfied the conditions and terms under the deed of trust. Accordingly, the court found that plaintiff failed to state a legally cognizable claim for wrongful foreclosure, and the action must be dismissed.

Plaintiff also insisted that defendant failed to provide the original note, plaintiff cited Nev. Rev. Stat. § 107.086(4). However, the court found that the defendants correctly point out that the plaintiff failed to cite to any authority that required defendants to produce the original note. As such, this cause of action was dismissed with prejudice.

Plaintiff lastly alleged that defendant failed to comply with the Federal Truth in Lending Act (“TILA”), codified at 15 U.S.C. § 1601 et seq. TILA contained many provisions concerning accurate and meaningful credit disclosures. However, the court found that the plaintiff’s complaint did not specify any particular provision with which defendant failed to comply. Accordingly, plaintiff provided only a conclusory statement as support for a vague TILA claim, and to the extent that this cause of action is alleged, it must be dismissed.