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Response to Motion for Summary Judgment

Response to Motion for Summary Judgment

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Published by Gavin Flynn
This is a response to a motion for summary judgment brought by the defendant/lender in which we pointed out that the lender failed to demonstrate ownership of the note (versus possession of the note) required under judicial foreclosure laws, and that the lender failed to show transfer or assignment of the note (again compared to mere possession) which would be necessary for the implied transfer of the deed of trust.
This is a response to a motion for summary judgment brought by the defendant/lender in which we pointed out that the lender failed to demonstrate ownership of the note (versus possession of the note) required under judicial foreclosure laws, and that the lender failed to show transfer or assignment of the note (again compared to mere possession) which would be necessary for the implied transfer of the deed of trust.

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Published by: Gavin Flynn on Apr 19, 2011
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12/01/2011

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IN THE SUPERIOR COURT OF WASHINGTON FOR CLARK COUNTYIn re:OCCO and REBECCA DEJONGH,Petitioners,andLAWYERS TITLE INSURANCECORPORATION, a foreign company doing business in Washington State, and HSBCBANK USA, NATIONAL ASSOCIATION, aforeign corporation doing business inWashington State, and NOMURA HOMEEQUITY LOAN, INC. ASSET-BACKEDCERTIFICATES, SERIES 2006-FM 1, aforeign corporation doing business inWashington State,Respondents.Case NoPLAINTIFF’S RESPONSE TODEFENDANTS’ MOTION FOR SUMMARYJUDGMENTCOMES NOW the Plaintiffs, Occo and Rebecca DeJongh, by and through their counsel of record, Gavin Flynn, Attorney at Law, and responds to Defendants’ Motion for SummaryJudgment by stating that the Respondent-Counter-Plaintiff lacks standing to bring a foreclosureagainst the Plaintiffs under the applicable law because they have failed to demonstrate ownership.Plaintiffs respectfully request that the court deny Defendants’ Motion for Summary Judgment.
PLAINTIFF’S RESPONSE TODEFENDANTS’ MOTION FOR SUMMARYJUDGMENT
Page 1
The Law Office of Gavin Flynn
1112 Daniels Street, Suite 50Vancouver, WA 98660Tel: (360) 260-5486Fax: (360) 883-9361
 
OVERVIEW
On one level, this is a complicated case, as it involves two trust relationships, and also because it necessarily hinges upon the laws of two states, Washington and New York. But onanother level, this is a simple case that hinges on ownership and ordinary rules of evidence.The first trust relationship is that set up under the Deed of Trust executed by the DeJonghsand is governed by Washington State Law. The second trust relationship was formed when NomuraHome Equity Loan created a REMIC trust under New York laws. As will be shown in greater detail below, the terms of the second trust (hereinafter “REMIC trust”) determine that the DeJongh Note and Deed of Trust is not a part of the Nomura REMIC trust assets, which means that Nomurais not the owner of the Note and Deed of Trust and has no standing to pursue a foreclosure.Judicial ForeclosureUnder Washington law, the foreclosing party must demonstrate why they are entitled to pursue the foreclosure, i.e., that they are the current owner of the promissory note and mortgage. 18WA PRAC: REAL ESTATE § 19.5 (emphasis added). For all the Defendant’s talk at the lasthearing about how commercial paper is negotiable even by a thief, Defendant misses the point,which is that a thief cannot sue in a court of law to enforce a stolen check; one must be an owner.Black’s Law Dictionary defines “owner” as “One who has the right to possess, use, andconvey something; a person in whom one or more interests are vested. An owner may havecomplete property in the thing or may have parted with some interests in it (as by granting aneasement or making a lease). SEE OWNERSHIP.”
 Black’s Law Dictionary 1214 ( 9
th
ed., 2009).
“Ownership is defined as: “The bundle of rights allowing one to use, manage, and enjoy property,
PLAINTIFF’S RESPONSE TODEFENDANTS’ MOTION FOR SUMMARYJUDGMENT
Page 2
The Law Office of Gavin Flynn
1112 Daniels Street, Suite 50Vancouver, WA 98660Tel: (360) 260-5486Fax: (360) 883-9361
 
including the right to convey it to others. … ‘Possession is the
de facto
exercise of a claim;ownership is the
de jure
recognition of one. A thing is owned by me when my claim to it ismaintained by the will of the state as expressed in the law; it is possessed by me, when my claim toit is maintained by my own self-assertive will.’”
 Black’s Law Dictionary 1215 ( 9
th
ed., 2009).
Because defendant only submits evidence of possession of the note, without clear evidenceof legal ownership, they fail to demonstrate the necessary element to pursue judicial foreclosure of showing that they are the current owner of the promissory note and mortgage.In Washington, one must have standing to pursue a judicial foreclosure. The common lawdoctrine of standing prohibits a litigant from raising another's rights.
 Fire Prot. Dist. V. City of Moses Lake,
145 Wn.2d. 702, 713 (2002).HSBC claims that as Trustee of the Nomura REMIC trust, it is authorized to foreclose onassets of the trust. To have standing to pursue a foreclosure, it is necessary that HSBC show morethan mere possession of the Note. It necessarily must provide admissible evidence that theDeJongh’s Promissory Note and Deed of Trust were properly assigned to the Nomura REMIC trust.However, nowhere in the Motion for Summary Judgment does the Defendant provide acopy of any assignment of the Deed of Trust or Note to HSBC or Nomura Home Equity. In fact,they do not argue assignment of the Deed of Trust in their argument, and appear to rely solely upon possession of the Note endorsed in blank. While possession of a bearer note may be sufficient in a purely commercial setting, possession is not what the law in Washington requires in order to pursuea judicial foreclosure; Washington law requires ownership. 18 Wa.Prac. §19.
PLAINTIFF’S RESPONSE TODEFENDANTS’ MOTION FOR SUMMARYJUDGMENT
Page 3
The Law Office of Gavin Flynn
1112 Daniels Street, Suite 50Vancouver, WA 98660Tel: (360) 260-5486Fax: (360) 883-9361

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