Tag Archives: stay foreclosure

Georgia Court Affirms That The Holder of a Deed to Secure Debt is Authorized to Exercise the Power of Sale in Accordance With the Terms of the Deed

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The court in deciding Sanford v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 156084, 2013 WL 5899238 (N.D. Ga. Oct. 31, 2013), found that each of the plaintiff’s arguments lacked merit and subsequently granted defendant’s motion to dismiss.

Plaintiff’s claim for wrongful foreclosure against BANA was based on three theories: (1) invalid assignment of the security deed; (2) improper notice under O.C.G.A. § 44-14-162.2; and (3) BANA’s lack of authority to foreclose as a non-secured creditor.

The court rejected plaintiff’s second and third arguments based on previous case law. The court cited a previous holding, noting that “the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed.”

Furthermore, the court noted that the notice requirement is satisfied if the notice identifies the individual or entity with full authority to negotiate, amend, and modify the terms of the mortgage, regardless of whether that entity is a secured creditor, note holder, deed holder, or none of the above.

Michigan Court Dismisses Plaintiff’s State Law Based Claims of Wrongful Foreclosure

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The United States District Court for the Eastern District of Michigan, Southern Division after considering the arguments in Ashford v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 156159, 2013 WL 5913411 (E.D. Mich. Oct. 31, 2013), dismissed the plaintiff’s complaint, with prejudice.

Plaintiff alleged claims against Defendant BANA for breach of contract (Count I), wrongful foreclosure/declaratory judgment (Count II), wrongful foreclosure (Count III), and violation of the Michigan Mortgage Brokers, Servicers, and Lenders Licensing Act, Mich. Comp. Laws § 445.1651 et seq. (Count IV). Defendant BANA filed the instant Motion.

Defendant argued that Plaintiff’s complaint should be dismissed because there is no valid basis to overturn the sale of the Property after the redemption period terminated. The Court agreed and found the rest of the plaintiff’s claims lacking or without merit.

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.

Michigan Court Finds Assignment From MERS to Bank of New York Was Valid

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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

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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

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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.

Eastern District of California Dismisses Plaintiff’s Action, Thus Upholding Decision That Possession of Original Note is Unnecessary

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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.