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.
Tag Archives: standing
Michigan Court Finds Assignment From MERS to Bank of New York Was Valid
The United States District Court for the Western District of Michigan, Southern Division in Maslowski v. Mortg. Elec. Registration Sys., 2013 U.S. Dist. LEXIS 156299 (W.D. Mich. Sept. 26, 2013) granted defendants’ motion to dismiss.
The crux of plaintiff’s claim is that the state foreclosure proceedings should be invalidated because MERS lacked the capacity to assign the Mortgage and BONY could not accept the MERS’ Assignment of Mortgage. Defendants successfully sought dismissal pursuant to Fed. R. Civ. P. 12(b)(6).
The court reasoned even if the assignment from MERS to BONY was invalid, thereby creating a defect in the foreclosure process under M.C.L. § 600.3204(1)(d), the plaintiff had not alleged that he was prejudiced.
While plaintiff claimed various damages, which arose from the alleged fraudulent assignment, plaintiff did not allege that he suffered any prejudice due to the alleged fraudulent assignment. Plaintiff failed to show that he would be subject to liability from someone other than BONY (i.e., double liability) or that he would have been in any better position to keep the Property absent the assignment Accordingly, the court granted the defendants’ motion to dismiss.
The Superior Court of New Jersey, Appellate Division, Finds That Wells Fargo Had Standing to File Foreclosure Action
The Superior Court of New Jersey, Appellate Division, in deciding Wells Fargo Bank, N.A. v. Garner, 2013 N.J. Super. LEXIS 2648, 2013 WL 5827033 (App.Div. Oct. 31, 2013) affirmed the lower court’s decision and dismissed motions to vacate the judgment of foreclosure.
Defendant argued that plaintiff, Wells Fargo Bank, N.A., lacked standing to file the foreclosure action. The defendant claimed that Wells Fargo did not own the note and mortgage on the date it filed the complaint. For the same reason, the defendant maintained that plaintiff improperly issued the notice of intent to foreclose.
The court found defendant was not entitled to relief under any subsection of Rule 4:50-1, and subsequently dismissed her complaint.
Texas Court of Appeals Finds That Plaintiff’s Claim – That the Note and Deed of Trust Became “Split” – Has No Basis in Law
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.
Eastern District of California Dismisses Plaintiff’s Action, Thus Upholding Decision That Possession of Original Note is Unnecessary
The United States District Court for the Eastern District of California in Candelo et al v. NDEX West, LLC et al., No. CV F 08-1916 LJO DLB (E.D.Cal. 2008) dismissed the plaintiff’s action.
In dismissing the plaintiff’s claims, the court upheld the decision that there was no requirement under the statutory framework for the mandatory production or possession of the original note, by the foreclosing party, to initiate non-judicial foreclosure.
Eastern District of California Court Dismisses Plaintiff’s Claims of Federal Statutory Violations, Unlawful Foreclosure, Fraud, Equitable Estoppel & Accounting
The United States District Court for the Eastern District of California in deciding Herrejon v. Ocwen Loan Servicing, LLC, 2013 U.S. Dist. LEXIS 157126 (E.D. Cal. Nov. 1, 2013) dismissed the plaintiff’s complaint as it failed to allege cognizable claims. The plaintiff’s complaint purported to allege claims for federal statutory violations, unlawful foreclosure, fraud, equitable estoppel and accounting.
The plaintiffs (Ricardo G. Herrejon and Rosa E. Navarro-Herrejon) filed this action, which challenged the foreclosure of their property. The plaintiffs also sought to enjoin a November 4, 2013 property foreclosure sale. Plaintiffs’ complaint accused defendants of “unlawful foreclosure.” However, the court dismissed the plaintiff’s action in the absence of viable claims, the court also denied plaintiffs’ requested injunctive relief, and entered judgment on dismissal of plaintiffs’ claims.
Michigan Court Concludes that the Servicer of the Loan Was Not in Violation of the Notice or Loan-Modification Requirements of Michigan’s Foreclosure-by-Advertisement Statute
The Michigan court in deciding the home mortgage foreclosure case of Pettey v. CitiMortgage, Inc., 2013 U.S. App. LEXIS 22299, 2013 FED App. 0936N (6th Cir.), 2013 WL 5832535 (6th Cir. Mich. 2013), concluded that the servicer of the loan was not in violation of the notice or loan-modification requirements of Michigan’s foreclosure-by-advertisement statute, Mich. Comp. Laws § 600.3204, because the mortgagors failed to take action under the statute that would have triggered the servicer’s notice and loan-modification obligations.
In doing so, the court affirmed the district court’s rejection of the mortgagors’ unjust-enrichment and deceptive acts and unfair practices claims. Moreover, the court was persuaded that the district court’s grant of the servicer’s motion to dismiss and denial of the mortgagors’ motion for reconsideration were proper. The court relied on the reasoning handed down by the lower court in their opinion, with the caveat that defects or irregularities in a foreclosure proceeding resulted in a foreclosure that was voidable, not void ab initio.
