Tag Archives: successor

Court Finds that Defendants Failure to Record all Assignments of the Deed did not Violate ORS 86.735

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The court in deciding Romani v. Northwest Trs. Servs., 2013 U.S. Dist. L (D. Or., 2013) granted the motion for summary judgment in favor of Northwest.

The plaintiff’s complaint asserted four claims. Plaintiff alleged that the non-judicial foreclosure of her property was defective. Plaintiff claimed that: 1) that the designation of MERS as beneficiary was invalid, and 2) that the defendants failed to record all assignments of the deed of trust in violation of ORS 86.735.

Plaintiff argued that MERS could not be the beneficiary under ORS 86.705(2) and that, as a result, MERS purported assignment of the deed of trust to Wells Fargo, as well as all other actions taken by MERS should be deemed void.

Plaintiff argued that the foreclosure sale was invalid because the defendants failed to record every transfer of the deed of trust, as required under the OTDA. Specifically, the plaintiff alleged that the transfers of the deed of trust which occurred when the note were transferred by endorsement were not recorded.

Plaintiff sought a declaratory judgment that 1) the defendants had no legal or equitable rights in the note or the deed of trust and 2) that the defendants lack of legal standing to institute, maintain, or enforce a foreclosure on the property entitled her to seek permanent injunctive relief barring the defendants from seeking to foreclose on the property in the future.

After consideration of the plaintiff’s arguments, the court dismissed them as moot and granted summary judgment in favor of the defendant.

Arizona’s Non-Judicial Foreclosure Statutes do not Require the Beneficiary to ‘Show the Note’ Before Commencing a Non-Judicial Foreclosure

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The court in deciding Famili v. Wells Fargo Bank NA, 2013 U.S. Dist. (D. Ariz., 2013) reaffirmed the holding that “Arizona’s non-judicial foreclosure statutes do not require the beneficiary to prove its authority or ‘show the note’ before the trustee may commence a non-judicial foreclosure.”

All counts alleged in plaintiff’s complaint centered on her assertion that whenever the promissory note was transferred or a change was made to the beneficiary of the deed of trust, the holder or beneficiary was required to demonstrate authority for the transfer or substitution. This court noted that each claim of breach of contract and lack of authority put forth by the plaintiff was an iteration of the “show-me-the-note” argument resolved by the Arizona Supreme Court in Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 277 P.3d 781, 782 (Ariz. 2012).

Thus, as a matter of Arizona law, the court found the plaintiff’s argument without merit.

Texas Court Rejects Break-in-the-Chain Claim

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The court in deciding Martinez v. Wilmington Trust Co., 2013 U.S. Dist., (W.D. Tex. 2013) found that plaintiffs’ petition failed to state a claim to which relief could be granted and dismissed the action.

Plaintiffs argued that the 2005 assignment was “fraudulent and forged,” “manufactured,” and “void and invalid,” constituting a “break in the chain.” Plaintiffs also claimed that defendant had no standing to foreclose on the instrument.

Plaintiffs alleged the 2005 assignment from Washington Mutual to Wells Fargo was “suspicious” due to the five year delay in recordation and because “Washington Mutual was bankrupt in August of 2010 and no longer existed in 2010.” According to plaintiffs, the 2005 assignment was flawed because it was recorded “some twelve years after the original transaction.”

Defendant argued that the plaintiffs’ claims should be dismissed because plaintiffs lacked standing to complain of any alleged defects in the assignments, and, standing aside, plaintiffs’ claims lack viability. Plaintiffs argued that defendant’s motion was moot. This court ultimately found that the defendant’s motion to dismiss had merit and granted it.