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HSBC v Perez

HSBC v Perez

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Published by Richie Collins

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Published by: Richie Collins on May 05, 2012
Copyright:Attribution Non-commercial

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02/18/2013

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IN
THE IOWA
DISTRICT COURT
FOR
WASHINGTON COUNTY
HSBC BANK
USA, NATIONALASSOCIATION, AS INDETURE
TRUSTEE
OF
THE
FIELDSTONE
MORTGAGE
INVESTMENT
TRUSTSERIES
2005-2,Plaintiff,
v.
SANTOS V.
PEREZ,
JUDY
K.
PEREZ,
AND
PARTIES
IN POSSESSION,Defendants.
))))
)
)
)
)))))))
)
No.
EQ4870
RULING ON
MOTIONFOR
SUMMARY
JUDGMENT
APPEARANCES: Attorney Matthew Laughlin for Plaintiff HSBC BankAttorney Charles Pierce for Defendants Santos and Judy Perez
RULING
(NOVERMBER 19, 2009)The parties appeared on October 02, 2009 for a hearing on Plaintiff s Motion for
.,
Sununary Judgment. The Plaintiff was represented by attorney Matthew Laughlin, who appearedby telephone; the Defendants were represented by their attorney, Charles Pierce, who appeared inperson. Also on October 02, 2009 the Court entered an Order instructing the Plaintiffto file aSupplemental Reply to Defendant's Supplemental Resistance by October 09,2009. Plaintiff'sfailed to file a Supplemental Reply and the matter was deemed submitted on October 09, 2009.Issue: Whether an issue
of
material fact exists regarding Plaintiffs right to foreclosecertain residential property owned by Santos
V.
and Judy
K.
Perez.
 
PROCEDURAL HISTORY
1.
On April
08,2009
HSBC Bank USA, National Association, (Hereinafter the Plaintiff)filed the present Foreclosure Action, seeking
to
foreclose a residential propertymortgaged by Santos
V.
and Judy K Perez.2. On May
OS,
2009, Santos
V.
and Judy K Perez responded with a Demand for Delay
of
Sale per
LCA
654.20-26.
3.
On June 23, 2009 Plaintiff filed a Motion for Default Judgment. On the Same day, thePerez's filed an Answer to the Foreclosure Petition.4. On July 31, 2009 Plaintiff filed a Motion for Summary Judgment alleging that theDefendant's Answer failed to allege an issue
of
Material fact. The Plaintiff also renewedits Motion for Default judgment.
5.
On August 18, 2009 the Defendants filed a Resistance to Plaintiff s Motion for SummaryJudgment, alleging several issues
of
material fact, including whether the
Plaintiffs
ownedthe mortgage, whether the Plaintiff had standing
to
bring this foreclosure action, andwhether the Defendants were given an opportunity to cure any default. Additionally, theDefendant's stated that they had not been able to complete discovery.
6.
Also
on
August 18, 2009 the Defendant's filed an Amended Answer containingaffinnative defenses.
7.
On August
24,2009
the Plaintiffs filed a reply to the Perez' resistance to the Motion forSummary Judgment.
8.
On October 02, 2009 the Perezs filed a supplement to their resistance to the
Plaintiffs
2
 
Motion for Summary Judgment.
9.
Also
on
that date, a hearing was held on the Plaintiffs Motion for Summary Judgment.The Plaintiff was granted one week in which to file a Supplemental Reply to Defendant'sSupplemental Resistance.
10.
This matter was deemed submitted on October 09, 2009, after
Plaintiffs
failed to file aSupplemental Reply to Defendant's Supplemental Resistance.
STATEMENT
OF
FACTS
1.
On or about June 21, 2005, Santos and Judy Perez (hereinafter the Perezs) made,executed and delivered
to
Fieldstone Mortgage Company one certain promissory note inwriting for the sum
of
$79,200.00.
2.
To secure payment
of
said note, the Perezs executed and delivered to Mortgage ElectronicRegistration Systems, Inc. solely as nominee for Fieldstone Mortgage Company (hereinafter Fieldstone) one certain Mortgage in writing dated June 21, 1995 which Mortgagewas filed June 28, 2005, said Mortgage being upon certain real estate located inWashington County, Iowa, specifically "lot 5 in block
7,
in the town
of
Crawfordsville,Washington County, Iowa."3. The Mortgage dated June 21, 2005 was recorded on June 28, 2005 as No. 05-2772 at theWashington County Recorder's office.4. The mortgage and notes provide that in case
of
default in the payment
of
any installmentrepresented
by
the note, the holder may declare the entire principal and the interestaccrued thereon immediately due and payable, and the mortgage may
be
foreclosed.
3

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