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6-23-11 Report and Recommendation

6-23-11 Report and Recommendation

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Published by chunga85
Magistrate Martin still doesn't seem to get it...or does he? According to the OCC Securitization Handbook the borrower IS an essential party to a securitized loan transaction.
Magistrate Martin still doesn't seem to get it...or does he? According to the OCC Securitization Handbook the borrower IS an essential party to a securitized loan transaction.

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Published by: chunga85 on Jun 23, 2011
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06/28/2013

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF RHODE ISLAND
ELOISA COSAJAY, :Plaintiff, ::v. : CA 10-442 M:MORTGAGE ELECTRONIC :REGISTRATION SYSTEMS, INC., :CM REO TRUST, and :SAXON MORTGAGE SERVICES, INC., :Defendants. :
REPORT AND RECOMMENDATION
David L. Martin, United States Magistrate JudgeThis is a declaratory judgment action in which the Plaintiffseeks a declaration that the assignments of her mortgage areinvalid, that her mortgage and promissory note are not held by anyof the Defendants, and that the Defendants lack standing toforeclose on the mortgage or enforce the note. See Complaint ¶ 8b; see also id. ¶ 24; id., prayer for relief ¶¶ A, C, D, E, O.Before the Court is a motion to dismiss filed by DefendantsMortgage Electronic Registration Systems, Inc. (“MERS”), CM REOTrust (“CM REO”), and Saxon Mortgage Services, Inc. (“Saxon”)(collectively “Defendants”), pursuant to Fed. R. Civ. P. 12(b)(1).See Defendants Mortgage Electronic Registration Systems, Inc., CMREO Trust and Saxon Mortgage Services, Inc.’s Motion to Dismiss(Docket (“Dkt.”) #5) (“Motion to Dismiss” or “Motion”). Defendants
Case 1:10-cv-00442-M -DLM Document 21 Filed 06/23/11 Page 1 of 36 PageID #: 431
 
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contend that Plaintiff Eloisa Cosajay (“Plaintiff” or “Cosajay”)does not have standing to dispute their power to foreclose bychallenging the validity of the assignments of her mortgage fromthe loan originator to its present holder because Plaintiff was nota party to any of those agreements.The Motion has been referred to me for preliminary review,findings, and recommended disposition pursuant to 28 U.S.C. §636(b)(1)(B). After listening to the arguments presented,reviewing the memoranda and exhibits submitted, and performingindependent research, I recommend that the Motion be treated as amotion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and that itbe granted.
I. Facts
On April 24, 2007, Plaintiff obtained a loan from LimeFinancial Services, Ltd. (“Lime”), in the amount of $220,000 inexchange for a promissory note. Complaint 9; see also id.,Exhibit (“Ex.”) D (Mortgage). The note was secured by a mortgagewhich the Plaintiff executed in favor of Lime, as lender, and MERS,as Lime’s nominee, successor and assign, and as the mortgagee underthe mortgage agreement. Id., Ex. D. The mortgage’s securityconsisted of property owned by Plaintiff and located at 220Sterling Avenue, Providence, Rhode Island (the “Property”).Complaint ¶ 8; see also id., Ex. D.Plaintiff’s promissory note and mortgage were the subject of
Case 1:10-cv-00442-M -DLM Document 21 Filed 06/23/11 Page 2 of 36 PageID #: 432
 
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While Plaintiff does not explicitly state that she has defaultedon her loan, see Complaint, she has not disputed in her filings or at theMarch 14, 2011, hearing on the Motion to Dismiss
 
Defendants’ repeatedassertions of this fact.
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three assignments. Complaint 11. On March 12, 2008, MERS, asnominee for Lime, assigned the mortgage to Deutsche Bank TrustCompany Americas, as Trustee and Custodian for IXIS Real EstateCapital, Inc. (“Deutsche Bank”) (the “First Assignment”). Id. 11; see also id., Ex. A (First Assignment). On September 4, 2008,Deutsche Bank assigned the mortgage to Saxon (the “SecondAssignment”). Complaint 11; see also id., Ex. B (SecondAssignment). On March 5, 2009, Saxon assigned the mortgage to CMREO (the “Third Assignment”). Complaint ¶ 11; see also id., Ex. C(Third Assignment). Each assignment was recorded in the Property’schain of title at the Recorder of Deeds for the City of Providence.Complaint, Exs. A, B, C. Saxon, on behalf of CM REO and throughits local counsel, Nicholas Barrett & Associates, initiatedforeclosure proceedings in October 2010 after Plaintiff failed tomake monthly payments and defaulted on her loan.
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Complaint ¶ 10.Plaintiff filed this action to enjoin the foreclosure proceedingsby alleging that the assignments of her mortgage are invalid. Id.¶¶ 8-15.
II. Plaintiff’s Contentions
Plaintiff challenges the validity of the assignments onmultiple grounds. She alleges that the persons executing the
Case 1:10-cv-00442-M -DLM Document 21 Filed 06/23/11 Page 3 of 36 PageID #: 433

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