Tag Archives: summary judgment

Ohio Appeals Court Reverses Summary Judgment in Favor of Bank as Genuine Issue of Fact Existed as to Whether the Bank held the Note

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The court in deciding U.S. Bank N.A. v. Kamal, 2013-Ohio-5380 (Ohio Ct. App., Mahoning County, 2013) reversed and remanded the lower court’s ruling. The court decided that there were genuine issues of material fact as to whether U.S. Bank was the holder of the note or mortgage when the complaint was filed and as to whether U.S. Bank complied with the default provisions in the note and mortgage. Therefore, the grant of summary judgment in U.S. Bank’s favor was reversed and the matter was remanded for further summary judgment proceedings.

Defendants-appellants appealed the decision of the lower court, which granted summary judgment and issued a decree of foreclosure for U.S. Bank National Association. Three issues were raised; the first was whether there was a genuine issue of material fact as to whether U.S. Bank complied with the notice of default provisions in the note and mortgage. The second issue was whether U.S. Bank was a real party in interest when the foreclosure complaint was filed. The third issue was whether the trial court should have struck certain evidence that U.S. Bank used to support its request for summary judgment.

This court ultimately held that a genuine issue of fact existed as to whether the bank was the holder of the note when the complaint was filed, as the record was devoid of any evidence proving the date on which the bank became the holder. There was also a genuine issue of fact as to when the mortgage was assigned, as the assignment contained information not known on the date the mortgage was executed and the only other logical date was the date the assignment was recorded, which occurred after the complaint was filed. Additionally a genuine issue of fact existed as to whether the bank complied with the notice of default and acceleration provision, as there was no evidence as to how the bank notified the debtor as the acceleration.

Ultimately, the lower court’s grant of summary judgment was reversed and the matter was remanded for further summary judgment proceedings.

NY Court Rejects Lack-of-Standing Claim

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The court in deciding HSBC Bank USA v Sage, 112 A.D.3d 1126 (N.Y. App. Div. 3d Dep’t 2013) affirmed the lower court’s decision dismissing the defendant’s lack of standing claim.

HSBC Bank USA commenced this foreclosure action alleging that defendant Gregory Sage defaulted on a note secured by a mortgage on his real property. After joinder of issue and an extended period of time during which settlement conferences took place, plaintiff moved for summary judgment striking the answer and appointment of a referee. Defendant cross-moved for, among other things, leave to amend his answer to allege that plaintiff lacked standing to bring the action. Supreme Court granted plaintiff’s motion and denied the cross motion. After considering the arguments, this court affirmed the lower court’s decision.

This court found that the plaintiff had established that the custodian of the trust had physical possession of the note and mortgage prior to the commencement of the action and that, as trustee, the plaintiff was responsible for carrying out the terms of the trust. Contrary to the defendant’s claim, the affidavit from an assistant vice-president of the mortgage servicing company was adequately based on a review of the books and records of the company maintained in the ordinary course of business, and the lack of personal knowledge as to the creation of the documents was not fatal.

Accordingly, the court found that the plaintiff met its initial burden on the motion for summary judgment and the burden then shifted to defendant to come forward with competent and admissible evidence demonstrating the existence of a defense that properly could raise an issue of fact as to his default. Defendant, as this court noted, did not do this, thus the case was properly dismissed.

Ohio Appeals Court Denies Assignment Error Claim Brought by Appellee

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The court in deciding United States Bank Nat’l Ass’n v. McHugh, 2013-Ohio-5473 (Ohio Ct. App., Lucas County, 2013) concluded that the trial court properly denied mortgagors’ motion under Civ.R. 60(B)(2).

Appellants argued that appellee lacked standing and was not the real party in interest. They also alleged that they were entitled to relief pursuant to their discovery of new evidence in the form of a pooling service agreement that confirmed appellee’s lack of standing.

Appellee opposed appellants’ motion on the basis that it was barred by res judicata, untimely, and failed to establish grounds for relief pursuant to Civ.R. 60(B)(2).

After considering the parties’ arguments, the court denied appellants’ motion. In its judgment entry, the court determined that the evidence relied upon by appellants in supporting their Civ.R. 60(B) motion was available to them prior to summary judgment and, therefore, was not newly discovered evidence. Further, the court found that appellants failed to demonstrate the existence of a meritorious defense as required under the Ohio Supreme Court. Finally, the court concluded that appellants’ motion was not filed within a reasonable time pursuant to Civ.R. 60(B).

Vermont Court Rejects Homeowners’ Request to Dismiss Complaint for Lack of Standing

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The court in deciding Deutsche Bank National Trust v. Merritt, 2013 Vt., 225 (Vt. Oct. 1, 2013) ultimately

Defendant homeowners sought to appeal the lower court’s order, which granted substitute plaintiff bank’s motion to dismiss the foreclosure action.

The homeowners raised several arguments regarding the bank’s standing to enforce homeowners’ promissory note, and sought an order dismissing the case. The defendant specified the bank’s lack of standing as the basis for the dismissal request, ordering that any legal charges, assessments and fees assessed by a bank against homeowners in connection with this action be removed from their mortgage debt, and ordering that initial plaintiff OneWest return all mortgage payments received from homeowners with statutory interest.

After considering the defendant’s claim, this court followed the lower court in dismissing the case.

Supreme Court of New York (Kings County) Denies Summary Judgment Motion on Plaintiff’s Standing To Foreclose

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The court in deciding U.S. Bank Natl. Assn. v Steinberg, 42 Misc. 3d 1201(A) (N.Y. Sup. Ct. 2013) denied the plaintiff’s motion for summary judgment in its entirety.

The Morgan Stanley Mortgage Trust commenced this foreclosure action against the Steinbergs. Plaintiff’s unverified complaint contained a single allegation regarding its standing to maintain this foreclosure action, alleged that plaintiff was the holder of the note and mortgage, which was indorsed by blank indorsement and delivered to plaintiff prior to commencement of this action.

In regards to plaintiff’s standing to foreclose, the court found that the plaintiff was not entitled to the relief it sought because it has failed to proffer any evidence of its standing to foreclose under the Steinberg Note at the time of commencement.

Further, the court found that there were triable issues of fact regarding delivery of the Steinberg note from the originating lender and indorser, Hemisphere National Bank, to the Morgan Stanley Mortgage Trust, requiring denial of the instant summary judgment motion in its entirety.

Illinois Court Rejects “Show Me the Note” Argument

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The court in Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380 (Ill. App. Ct. 1st Dist. 2013) rejected show-me-the-note argument proffered by the defendant.

Defendants claimed that Parkway did not demonstrate proper standing to foreclose because it did not establish the fact that it was the true holder of its own loan. The basis of this argument was the contention that the defendants requested Parkway to produce the “original title” or original notes on numerous occasions but Parkway failed to do so.

The court easily resolved the first part of this argument by finding that the defendants did not explain what an “original title” was. Even so, the court found that the defendants also failed to cite any authority as to why such a document would be a necessary element of proof in a foreclosure case, or why it might be relevant.

The court found that the mortgagors were personally served and that was all that was necessary in this case. With regard to the mortgagors’ claim that the mortgagee did not establish that it was the true holder of the loan, the court held that production of the original note in open court was not a required element of proof in a foreclosure case under 735 ILCS 5/15-1506(b) (2010).

Reiss in Bloomberg Industries Q&A on Frannie Litigation

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Bloomberg Industries Litigation Analyst Emily Hamburger interviewed me about The Government as Defendant: Breaking Down Fannie-Freddie Lawsuits (link to audio of the call). The blurb for the interview is as follows:

As investors engage in jurisdictional discovery and the government pleads for dismissals in several federal cases over Fannie Mae and Freddie Mac stock, Professor David Reiss of Brooklyn Law School will provide his insights on the dynamics of the lawsuits and possible outcomes for Wall Street, the U.S. government and GSEs. Reiss is the author of a recent article, An Overview of the Fannie and Freddie Conservatorship Litigation.

Emily questioned me for the first half of the one hour call and some of the 200+ participants asked questions in the second half.

Emily’s questions included the following (paraphrased below)

  • You’re tracking several cases that deal with the government’s role in Fannie Mae and Freddie Mac, and I’d like to go through about 3 of the major assertions made by investors – investors that own junior preferred and common stock in the GSEs – against the government and hear your thoughts:
    • The first is the accusation that the Treasury and FHFA’s Conduct in the execution of the Third Amendment was arbitrary and capricious. What do you think of this?
    •  Another claim made by the plaintiffs is that the government’s actions constitute a taking of property without just compensation, which would be seen as a violation of the 5th Amendment – do you think this is a stronger or weaker claim?
    • And finally – what about plaintiffs asserting breach of contract against the government? Plaintiffs have said that the Net Worth Sweep in the Third Amendment to the Preferred Stock Purchase Agreement nullified Fannie and Freddie’s ability to pay dividends, and that the two companies can’t unilaterally change terms of preferred stock, and that the FHFA is guilty of causing this breach.
  • Is the government correct when they say that the section 4617 of the Housing and Economic Recovery Act barred plaintiff’s right to sue over the conservator’s decisions?
  • Former Solicitor General Theodore Olson, an attorney for Perry Capital, has said that the government’s powers with respect to the interventions in Fannie and Freddie “expired” – is he correct?
  • Can you explain what exactly jurisdictional discovery is and why it’s important?
  • Do we know anything about what might happen if one judge rules for the plaintiffs and another judge rules for the government?
  • Is there an estimate that you can provide as to timing?
  • Are there any precedents that you know of from prior crises? Prior interventions by the government that private plaintiffs brought suit against?
  • How do you foresee Congress and policymakers changing outcomes?
  • What do we need to be looking out for now in the litigation?
  • How does this end?

You have to listen to the audiotape to hear my answers, but my bottom line is this — these are factually and legally complex cases and don’t trust anyone who thinks that this is a slam dunk for any of the parties.