Tag Archives: stay foreclosure

Wisconsin Court Grants Summary Judgment in Favor of GMAC

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The court in deciding GMAC Mortg., LLC v. Poley, 2013 Wisc. App. LEXIS 872 (Wis. Ct. App. 2013) affirmed the lower court’s decision in granting summary judgment in favor of GMAC.

In this foreclosure action, the circuit court granted summary judgment in favor of the mortgagee, GMAC Mortgage LLC. On appeal, mortgagor James Poley argued that the court should have stayed this foreclosure action as a result of a federal bankruptcy proceeding initiated by GMAC during the pendency of this action and, in any case, erred in granting summary judgment in favor of GMAC.

After considering the arguments the court concluded that the lower court did not err in determining that the bankruptcy proceeding did not prevent Poley from opposing summary judgment. The court also concluded that the lower court properly granted summary judgment. Therefore the court affirmed the decision of the lower court in all respects.

Michigan Court Grants Summary Judgement in Favor of Bank

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The court in deciding Wargelin v. Bank of Am., 2013 U.S. Dist. LEXIS 146326 ( E.D. Mich. 2013) ultimately granted defendants’ motion for summary judgment.

Plaintiff brought an action arising out of a foreclosure and subsequent sheriff’s sale of his residential property. Count I of plaintiff’s action was violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. Count II, was for breach of implied covenant of good faith and fair dealing. Count III involved defamation of title. Count IV was discharge of lien and claim to quiet title. Count V of the plaintiff’s complaint was for a violation of Mich. Comp. Laws §600.3205a.

Count VI of the plaintiff’s complaint was intentional infliction of emotional distress. Count VII was request for equitable, declaratory & injunctive relief; count VIII, Fraudulent Misrepresentation; count IX, quiet title; count XI, silent fraud and bad faith promises. Count XII of the claim was for breach of contract and wrongful foreclosure. Lastly, count XIII arose out of a violation of Michigan Foreclosure Law and Count XVI, violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2(b).

The defendants maintained that all of the plaintiff’s claims challenging the foreclosure sale were subject to dismissal because these claims were based on a purported breach of an oral modification agreement, therefore these claims were barred by the statute of frauds. Defendants also argued that plaintiff’s failure to redeem the property within the redemption period precluded plaintiff from raising any claims associated with the foreclosure.

California Court Finds Plaintiff Lacked Standing to Bring Action

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The court in deciding Mottale v. Kimball Tirey & St. John, LLP, 2013 U.S. Dist. 146293 (S.D. Cal. Oct. 9, 2013) ultimately granted the defendants’ motion to dismiss.

Plaintiff alleged unnamed investors brought an unlawful detainer action in state court foreclosed his home. Plaintiff also alleged his loans were securitized from a pool of funds provided by unknown investors who misrepresented the identities of the actual lenders. Plaintiff alleged that the assignment was invalid and fraudulent because the assignment documents were forged and defective. Plaintiff further alleged the notice of default (“NOD”) was void because BAC had “no prior recorded interest” in the Property when Recontrust recorded the NOD. Lastly, the plaintiff alleged that the NTS 2 was also fraudulent because Reconstrust had no legal right to record a substitution of trustee.

Defendants moved to dismiss plaintiff’s complaint on several grounds. First, defendants argued that the plaintiff failed to show he tendered the amount owed under default, and thus plaintiff lacked standing to challenge the foreclosure.

Second, defendants argue several courts in California have rejected plaintiff’s securitization theory. Defendants further contend that possession of the promissory note was not a pre-requisite to commence a non-judicial foreclosure proceeding. Defendants also pointed to a number of deficiencies in the complaint, including failure to joint an indispensible party and defective and insufficient claims under other statutes.

After considering both arguments, the court granted defendants’ motion to dismiss.

Ohio Appeals Court Affirms Lower Court Decision Granting Summary Judgement in Favor of Bank of America

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The court in deciding Bank of Am., N.A. v. Hizer, 2013-Ohio-4621 (Ohio Ct. App., Lucas County 2013) ultimately granted the defendant’s motion for summary judgment.

This case was an appeal from a judgment of the Lucas County Court of Common Pleas that granted summary judgment in favor of appellee Bank of America, N.A. in a foreclosure action filed by the bank after appellants Jennifer and Brian Hizer defaulted in payment on a note and mortgage held by the bank. After considering the appellants appeal, the court affirmed the judgment of the trial court.

This case involved a mortgage foreclosure action, the court affirmed a lower court decision that there was no abuse in discretion by denying appellants’ motion to strike the affidavit of appellee bank’s vice president, whose identity the bank failed to disclose in discovery and whom appellants were thus unable to depose, because they did not complain of the discovery violation until the bank moved for summary judgment, and did not show that they were prejudiced by their inability to depose the vice president.

The court noted that since appellants did not deny executing the note and mortgage or dispute the authenticity of the documents the bank offered, and produced no evidence to dispute the assignment of these documents to the bank. The evidence established that the bank was the holder of the note and mortgage. Thus, the court affirmed the lower court’s ruling in that there was no error in permitting the bank summary judgment.

California Court Finds That Defendants Complied With Statutory Mandate That the Notice of Default Include Sufficient Contact Information

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The court in deciding Wagma Safi v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 147005 (E.D. Cal. Oct. 9, 2013) ultimately granted defendant’s motion to dismiss.

In her first cause of action, the plaintiff asked for declaratory relief in the form of a judicial declaration that the plaintiff had the right to reinstate the loan for which the deed of trust was collateral, and that the defendants were required to provide her with the information necessary to do so.

The court dismissed the plaintiff’s first cause of action for declaratory relief. Despite defendants’’ alleged refusal to provide plaintiff with information regarding the loan, their compliance with the notice requirements of section 2924c(b)(1) provided plaintiff with sufficient information to exercise her right to reinstate the loan.

In her second cause of action, plaintiff asked for declaratory relief, contending that “Bank of America was the sole beneficiary under the deed of trust and that MERS had no authority to transfer or assign any rights under the deed” Plaintiff alleged that MERS signed the deed of trust “solely as nominee” and thus lacked the authority to assign its interest to a third party.

The court found that plaintiff made no showing that would call into question the validity of MERS’ assignment. The court found that she failed to state a claim and the second cause of action was dismissed.

California Court Dismisses Show-Me-the-Note Claim

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The court in deciding Newman v. Bank of N.Y. Mellon, 2013 U.S. Dist. LEXIS 147562 (E.D. Cal. 2013) granted the defendant’s motion and dismissed the complaint.

Plaintiff (Newman) argued that he was not challenging the authorization to foreclose, nor was he requiring defendants to “produce the note.” Rather, he was challenging whether the correct entity is initiating foreclosure. He claimed that BONY did not have the right to enforce the mortgage because it did not own the loan, the note, or the mortgage.

Plaintiff alleged claims for declaratory relief, quasi-contract, California Civil Code § 2923.5, the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et. seq.) (“FDCPA”),California Business & Professions Code § 17200 (“UCL”), and negligence.

Defendants argue that dismissal is appropriate for several reasons. First, Newman could not bring an action to determine whether the person initiating the foreclosure was authorized to do so. Second, Newman’s allegations that the assignments of the deed of trust involved illegible signatures and “robo-signers” were irrelevant. Third, Newman had no standing to challenge any violations of the Pooling and Servicing Agreement (“PSA”).

After reviewing the arguments the court found that the claims for declaratory relief, quasi-contract, under Cal. Civ. Code § 2923.5, and under the Fair Debt Collection Practices Act (FDCPA) failed because any claims that were based on violation of the pooling and servicing agreement were not viable, the borrower was estopped from arguing that the assignment violated the automatic stay, and the allegations of fraudulent assignments were insufficient and implausible.

The negligence claim also failed. The claim under Cal. Bus. & Prof. Code § 17200 (UCL) failed because the complaint did not state a claim for violation of the FDCPA, Cal. Penal Code § 532f(a)(4) could not have formed the basis of a UCL claim, and no violation of the Security First Rule was apparent.

Texas Court Found That There Was no Gap in Chain of Title

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The court in deciding Acosta v. Fannie Mae, 2013 U.S. Dist. LEXIS 148066 (S.D. Tex. 2013) found that Under Section 51.0025 of the Texas Property Code, BOA had standing to foreclose as servicer of the loan.

Plaintiff asserted numerous claims arising from the foreclosure of his property.

The court found that the plaintiff had offered no summary judgment proof of any defect in the foreclosure proceedings. Acosta had also offered no summary judgment proof that BOA made any false or reckless statement to him upon which he relied to his harm; therefore, his claim for fraud or misrepresentation failed.

The court also found that BOA effectively became the “original lender” of Acosta’s loan by virtue of the merger with Countrywide. MERS, in its capacity as nominee, assigned the loan to BOA, as successor of the merger. Hence, there is no cognizable “gap in the chain of title” and BOA, therefore, had standing to foreclose.

The court ultimately granted summary judgment in favor of the defendants.