Gray v. FANNIE MAE | Ala: Court of Civil Appeals – Did not entitle MERS to t e !oney se"ured #y t e !

ort$a$e% Ever&o!e presented no eviden"e indi"atin$ t at t e note ad #een transferred '#y delivery of possession or #y (ritten assi$n!ent.) *+*,+*-

Diane Gray. v. Federal National Mort$a$e Asso"iation.
No. 2120087. Court of Civil Appeals of Ala#a!a. January 10, 2014. This opinion is subject to formal revision before publication in the a vance sheets of !outhern "eporter. "ea ers are re#ueste to notify the "eporter of $ecisions, %labama %ppellate &ourts, '00 $e(ter %venue, )ont*omery, %labama '+104,'741 --''4. 22/,0+4/., of any typo*raphical or other errors, in or er that corrections may be ma e before the opinion is printe in !outhern "eporter. 01" &2"3%). $iane 4ray appeals from a summary ju *ment entere by the Jefferson &ircuit &ourt -5the trial court6. in favor of the 7e eral National )ort*a*e %ssociation -57annie )ae6.. 8e reverse the trial court9s ju *ment.

Fa"ts and /ro"edural &istory
:n %pril 1;, 2011, 7annie )ae file a complaint a*ainst 4ray assertin* that, 5by virtue of foreclosure on %pril 4, 2011, of that certain )ort*a*e ori*inally bet<een $iane 4ray an )ort*a*e 1lectronic "e*istration !ystems, 3nc. actin* solely as nominee for 3r<in )ort*a*e &orporation subse#uently transferre an assi*ne to 1ver=ome )ort*a*e &ompany an further purchase by >7annie )ae?,6 7annie )ae is the o<ner of certain real property locate in Jefferson &ounty. 7annie )ae alle*e that it ha serve a <ritten eman for possession on 4ray, that 4ray ha faile to vacate the property, an that 4ray ha lost her ri*ht to re eem the property. 7annie )ae re#ueste possession of the property, money ama*es for the <ron*ful retention of the property, an an or er statin* that 4ray ha 5forfeite her ri*ht to re emption for failin* to vacate the property.6 :n )ay 18, 2011, 4ray ans<ere an asserte as an affirmative efense that the foreclosure <as voi . :n )arch 27, 2012, 7annie )ae file a motion for a summary ju *ment, alon* <ith evi entiary materials in support thereof. 7annie )ae submitte the affi avit of "obin )ur oc@, vice presi ent for 51verAan@ sbm 1verhome )ort*a*e &ompany6 -hereinafter referre to as 51verAan@6 or 51ver=ome6., the servicer of the loan, in <hich )ur oc@ state , in pertinent partB “3. In my present position, I have direct access to business records of EverBank as loan servicer regarding the account which forms the basis of this action and am a custodian of said business records. I have reviewed said relevant business records, and consistent with my review of the business records of EverBank as loan servicer, I have knowledge of the facts set forth in this Affidavit. “ . !he business records were made in the ordinary course of the business and it was the regular course of said business to make such records. "aid records relative to #efendant $%A& ' and this action, were made at the time of the transaction, occurrence or event referred to therein or were made within a reasonable time thereafter, and said records are kept under my care, supervision, and(or control. “). *n or about +anuary 3,, -,, , $%A& entered into and e.ecuted that certain /ote, in favor of Irwin 0ortgage 1orporation and its successors and assigns'. “2. *n or about +anuary 3,, -,, , $%A& entered into and e.ecuted that certain 0ortgage, securing the /ote, in favor of 3A//IE 0AE'.

1

-. ' !he mortgage was recorded in the probate recordsof +efferson 1ounty. *n 3ebruary 9.0/4. I am the sole owner of the property in which I currently reside.' in or er to reinstate the loan an to avoi acceleration of the total amount ue un er the note an the mort*a*eC a letter ate 7ebruary 8. -. sent a /otice of #efault.. the 0ortgage was foreclosed through a valid foreclosure sale'.55.. 3A//IE 0AE was the highest and best bidder at the foreclosure sale and is the owner of the :property.. I lost my Bob due to company layoffs. $%A& :was. I lost my Bob in *ctober -. alon* <ith her affi avit in support thereof. 2010.ecuted a mortgage with :0E%". “5-. 4ray file her response to the summary.ecuted an Assignment of 0ortgage to Ever6ome 0ortgage 1ompany 7aka EverBank8'. sent a /otice of Acceleration at the address recited in the mortgage'. *n /ovember . -.9. 2010. !he original terms of the note and mortgage re@uired :me. to 1ver=ome ate )ay 10. -. -5)1"!6. to pay A4..m. .55 foreclosure sale. failure to make payments according to the terms of the /ote and 0ortgage and advised her of the possibility of foreclosure.es and insurance. -. 2007C a letter ate November 4..C an a eman for possession of the property sent by 7annie )ae to 4ray ate %pril 4.)< each month which included escrow funds for ta. <hich states that the foreclosure sale occurre 5at public outcry in front of the &ourthouse oor in Airmin*ham. my household income significantly decreased. “53. -. In "eptember -. 2011. -3. from 1ver=ome to 7annie )ae. $%A& :was. *iven by 4ray in favor of 3r<in )ort*a*e &orporationC a mort*a*e -5the mort*a*e6. notifyin* 4ray that she <as in efault of the note an the mort*a*e an that 1ver=ome <as acceleratin* to maturity the entire unpai balance of the loanC proof of publication of the notices in the %labama )essen*er. 2004.“4. a ne<spaper of *eneral circulation in Jefferson &ountyC a foreclosure ee ate %pril 4. 3n her affi avit. 2012. -. *n April . and had difficulty again making my mortgage payments and the bankruptcy 2 . Chile I was in Bankruptcy. notifyin* 4ray that she <as in efault on her mort*a*e payments an that she ha 20 ays to *et her account current or the mort*a*e <oul be foreclose C a letter to 4ray ate $ecember '1.55. In *ctober -.. !he note and mortgage are secured by the property.5.4. %labama. -.. Alabama.4. “<.. and 0arch ). “!he mortgage and note :were. As a result of my Bob loss. It ried to get Ever6ome to assist me. 2011. relatin* to the property *iven by 4ray to )ort*a*e 1lectronic "e*istration !ystems... I was never notified of said transfer.= 7annie )ae also attache a note ate January '0. notifyin* her of her breach of the note an of the mort*a*e an statin* that she must pay the amount of D21. but it refused so I was forced to file achapter 53 bankruptcy petition on 0arch 35. -. 4ray averre . I began contacting the mortgage company about making payment arrangements.ju *ment motion. *n 0ay 5.5. 3nc.55.55. 2011. 0y mortgage is a 3annie 0ae mortgage and so states on the face of the document. and #ecember 35. as nominee for Irwin 0ortgage 1orporation. “9. Because of the circumstances. in pertinent partB “I bought the property ' on +anuary 3. a demand for possession of the property was sent to the $%A& at the property address set forth in the 0ortgage'.6 on that ay 5bet<een the le*al hours of sale6 an <hich inclu es a certification from the auctioneer that the sale too@ place on that ate at 11B'' a.. “5. apparently transferred to Ever6ome 0ortgage 1ompany at some point thereafter> although.. :n )ay 1. !he notice of foreclosure was published on 3ebruary <. actin* solely as a nominee for 3r<in )ort*a*e an its successors an assi*neesC an assi*nment of the mort*a*e from )1"!. and signed a promissory note with Irwin 0ortgage 1orporation and e. 52. I began seeking assistance from the mortgage company regarding my difficulty in making the monthly mortgage payments. Irwin 0ortgage 1orporation e. !his notice informed $%A& of :her.4. ' !his notice was sent to the address recited in the 0ortgage. Jefferson &ounty. and I began having difficulty paying the mortgage payments. as nominee for 3r<in )ort*a*e an its successors an assi*nees.. By virtue of the April . ?rior to the foreclosure Ever6ome was acting as the servicer of my mortgage loan. in !he Alabama 0essenger'. *n April .5.9 to save my home. “55. -.

I was told by representatives of the mortgage company not to worry. 7annie )ae file a reply to 4ray9s response to the summary. :n )ay 22. “3ailure to set aside this foreclosure sale would render a harsh result on me due to my financial situation. my house. and I never got the loan modification to which I was promised. I again contacted the mortgage company in 3ebruary -. and an opportunity to cure that default. :3annie 0ae. and was e. I went to the courthouse at appro.= Aoth parties move to stri@e the affi avits submitte by the other party. “In 3ebruary and 0arch -... p. 6owever. ?aragraph -5 re@uires that the mortgage company send me a default notice and a notice of intent to accelerate the mortgage indebtedness. . -. 3urther. I was told by them that the foreclosure would not go forward as long as they were working with me through the loss mitigation program. they did not follow through with assisting me. !hey told me they would work with me and that I @ualified for assistance and would get a loan modification. I did not receive the re@uired notice outlined in the mortgage document that I was given on +anuary 3.55 in an effort to save my home and asked for 6A0? :6ome Affordable 0odification ?rogram. I had to keep calling them back regarding my application for assistance. -. *n 3riday.. their failure to follow said contract renders the foreclosure sale invalid. I never received any notice that a foreclosure sale had been set for April . April 5. I later received a letter from the law office of "irote F ?ermutt advising me that the house had been sold and asking me to vacate the premises. bought the property from itself at the foreclosure sale for A43. am the morning of the sale and stood on the front steps of the main entrance of the +efferson 1ounty 1ourthouse. “Although.m. 2012. Ever6ome has failed to abide by the terms and conditions of the mortgage contract. I was confused about the foreclosure procedure. I sent all the re@uested information to them> however. ' . and no one ever appeared there to :sell. I have a meritorious defense to this action.9<.59). a notice of intent to accelerate. !hey refused to offer me any further help to save my home. when I called the mortgage company to check on the status of the mortgage and was advised that the house had was set to be sold that day at noon and that there was nothing further that they could do to stop the foreclosure sale.tremely important.. I got behind with the mortgage payments again and was sent a notice that Ever6ome intended to foreclose on my home. I relied upon these communications and believed that the mortgage company was working with me to help me keep my home and avoid foreclosure...imately <E. 7annie )ae attache an affi avit of the foreclosure. I never heard from them. I spoke to the mortgage company numerous times about a loan modification or work out plan through their loss mitigation program. 3urthermore.ju *ment motion.55. the foreclosure sale was the morning of the sale 7April . I want to keep this property. "ince its power of sale and ability to foreclose is conditioned upon the mandates and procedures of the contract. modification through Ever6omeDs loss mitigation program. I could never get anyone to follow up with the modification despite my repeated calls to the mortgage company. -. Even if the mortgage contract is held to be valid. Because of these communications with the lender.m. Ever6ome wrongfully foreclosed and attempted to purchase for itself the property on April . !he notice was re@uired by the mortgage. -.55... I stayed there until after 5-E3. “!he indebtedness on the property at the time of the foreclosure sale was appro.. “I was never sent nor did I receive any proper notice of default or an opportunity to cure the delin@uency.. ?rior to acceleration of the debt.payments. -. I was not provided with a notice of intent to accelerate stating the following elementsE 7a8 the specific default. 0y first knowledge :of. 7c8 a date by which to cure the default.55.558 at appro. I was never provided with a notice of intent to accelerate as re@uired by my mortgage contract. a. a notice of sale. I was aware I was in foreclosure.imately 55E-. 7b8 the action re@uired to cure the default.55 without giving me a proper notice of the default. that they were still reviewing my account for a loan modification and that they would postpone any sale until the review was finished. and 7d8 that failure to cure the default on or before the date specified in the notice will cause acceleration of the debt.imately A4). !his property was wrongly foreclosed.

:n July 2."o. a<ar in* possession of the property to 7annie )ae an or erin* the Jefferson &ounty sheriff to restore possession of the property to 7annie )ae.. applying the oftHstated principles governing appellate review of a trial courtDs grant or denial of a summary Budgment motionE “G=Ce apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. v.=G “American Iiberty Ins. she ar*ues that there <as no evi ence in icatin* that 1ver=ome <as the o<ner of the note at the time of the foreclosure sale. 17' -%la. :n :ctober 17. 1o. F 1as. Standard of Revie( “GCe review this case de novo. this court transferre the appeal to the %labama !upreme &ourt for lac@ of juris ictionC that court subse#uently transferre the appeal to this court. 3n =arris v.ists.ecutedD only by the trustee ifit was the party entitled to the money thus secured.7Ala. 5at or about 11B'' %) urin* the le*al hours of sale at the place appointe for foreclosure auctions in front of the main entrance to the &ourthouse in Airmin*ham.ecute a deed in his name to 4 . she says. 2012. G"ubstantial evidenceD is Gevidence of such weight and @uality that fairHminded persons in the e. 201'. ' GGG. 11100. The trial court foun that 4ray ha forfeite her ri*ht of re emption by failin* to eliver possession of the property to 7annie )ae after havin* been *iven 10 ays9 <ritten notice. J <.. 1ode 5<-3. having no ownership of the debt. or the personal representative of any person who. v. !pecifically. the trial court enie 4ray9s postju *ment motion on !eptember +.. pursuant to %la.. the trial court entere a ju *ment on June 22. and passes to any one who by assignment or otherwise becomes entitled to the money secured.istence of the fact sought to be proved. 4<. 595 "o.D In reviewing a summary Budgment. $eutsche Aan@ National Trust &o. &o e 1/7. 201'? GGG !o.7. Dis"ussion :n appeal. >)s. %labama. Ala. !ept. #?3 Architects. which states that the power to sell lands given in a mortgage Gis part of the security and may be e. 2012.8 7citations omitted88. 2 171. E 12.2.sale auctioneer averrin* that he ha con ucte the foreclosure sale on %pril 4. -. Ins. 1ode 5<4).. ?. “GBut an agent of such holder to whom the mortgage is delivered merely for the purpose of foreclosure. 2011. !hey cite J 3)H5. statingE “GA power of sale in a mortgage of real estate is a part of the security.ecuted by any person. there <ere *enuine issues of material fact in ispute. -d 492. Fil*ore.-8 7@uoting /ationwide ?rop. The only evi ence re*ar in* the note is a copy of the note in orse by the vice presi ent of 3r<in )ort*a*eC that in orsement is not ate an oes not inclu e the name of the assi*nee of the note. in favor of 7annie )ae. 2012. amen . -3< 75<398.' !o. 2012.H5-. -. we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the Bury would have been free to draw.1. 3irst /ational Bank.5. 9-) "o. the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. -53. v. GGG -%la. by assignment or otherwise. 4<. -d 32<. 4ray file her notice of appeal to this court. Am"outh Bank. 34. and e..D In 1arpenter v. The trial court i not rule on the respective motions to stri@e.6 %fter a hearin*.4. :n )ay 22. 8. our supreme court reasone B “!he 6arrises also argue that the power of sale described in the mortgage was given by the 6arrises as part of the security for the repayment of the debt evidenced by the note and can be Ge.H5-. this 1ourt applied the predecessor to J 3)H5. 7ollo<in* a hearin*. or vacate the trial court9s ju *mentC 7annie )ae file a response to the motion on !eptember 4. 4ray file a postju *ment motion to alter. 8e a*ree. -32 Ala.. 2012. 1o. 7Ala. 2002. 201'. 4ray ar*ues that the summary ju *ment entere by the trial court <as improper because. *nce a party moving for a summary Budgment establishes that no genuine issue of material fact e.. becomes entitled to the money thus secured.ercise of impartial Budgment can reasonably infer the e.= 4eneral )otors &orp. 1'. is not authoriKed to foreclose in his own name.. Jefferson &ounty..

D “-32 Ala.. !he foreclosure deed in this case was e. *wnership of the debt does not pass to such agent merely because the note is indorsed in blank. in its own name. at 394 7@uoting Best 3ertiliKers of AriKona. therefore. ' 1/. passes to the transferee the lien of the ven or of the lan s. Burns. “!he parties agree in their briefs.6. . the subse@uent assignment of that mortgage by 0E%" to the trustee did not accomplish an assignment of that right to the trustee.24 -5The transfer of aK note *iven for the purchase money of lan s.= -7ootnote omitte . and thus the power to e. but the tail cannot survive without the cow. or any other party to which "outh"tar may have assigned the note. 595 "o..C see also %la. not on behalf of the lender. "ee J 3)H5. GGG -%la. Accordingly. at .96 &oleman... "outh"tar.. ' at 20. 7It asserts that. Aecause there <as no evi ence presente that 1ver=ome. Iittle. was entitled to receive the money secured by the note at the time it e. ' at 20' -5The promissory note evi encin* that ebt <as a bearer instrument that coul be transferre in t<o <aysB by elivery of possession or by <ritten assi*nment. 9)5 75<558. %ccor in*ly. !ee also 1( parte A%& =ome Hoans !ervicin*. v. in the present case 5the mort*a*e *iven )1"! Isolely as a nominee for >3r<in )ort*a*e? an >3r<in )ort*a*eJs? successors an assi*ns9 i not entitle )1"! to the money secure by the mort*a*e.6 3 . App. that the mortgage given 0E%" Gsolely as a nominee for Iender and IenderDs successors and assignsD did not entitle 0E%" to the money secured by the mortgage. ' GGG. !he deed was effective to transfer title and to foreclose the rights of the mortgagor. 2012. 1'.D %estatement 7!hird8 of ?ropertyE 0ortgages J ). 1ver=ome presente no evi ence in icatin* that the note ha been transferre 5by elivery of possession or by <ritten assi*nment. A%& !ervicin*. before e.) of the debt evidenced by the original note signed by the 6arrises. the foreclosin* entity. the subse#uent assi*nment of that mort*a*e by )1"! to >1ver=ome? i not accomplish an assi*nment of that ri*ht to >1ver=ome?. 201'.ecute the power of sale in its own name. li@e in =arris. ' at 20. !ept. H0. -hol in* that the ri*ht of the foreclosin* entity to con uct a foreclosure sale must be proven in or er to sho< that the buyer at a foreclosure sale has superior le*al title an a cause of action to eject the ebtor. "uch foreclosure is ineffective.. . <-. !he %estatement e. 1110'7'. 104 !o. 5I>:?nly the hol er of the obli*ation can foreclose.H5. 104 !o. &iv. )4 "o.-d 54< 75<4488.ecuted and delivered that deed. and we accept for purposes of this case. -%la. )45 ?. at GGG. only if the trustee.. reversed on other grounds. !he cow can survive without a tail.plainsE G=!he note is the cow and the mortgage the tail. 242 71t.ecuted by the trustee in its own name. 54<.ecute the corresponding power of sale in its own name.6 &oleman v. E 8. <as the hol er of the note at the time of the foreclosure sale.he mortgage becomes useless in the hands of one who does not also hold the obligation because only the holder of the obligation can foreclose. 104 !o. &o e 1/7. 201'? GGG !o. at -5). !he trustee in fact concedes that summary Budgment was inappropriate in this case and that on the state of the current record there is a genuine issue of material fact as to whether the trustee received an assignment of the note so as to have entitled it to e. 7emphasis added8.. Inc. %eporterDs /ote L Introduction.= 104 !o. in &oleman v. cmt. if this case is returned to the trial court. 549.6. e(presse to be <ith or <ithout recourse on the transferor. %pp. 542 Ala.8 !he summary Budgment entered by the trial court therefore is due to be vacated and the case remanded for a determination as to whether the trustee received an assignment of the right to receive the money secured by the note. !imilar to =arris. <hether the transfer be by elivery merely or in <ritin*.. ?... however. the summary ju *ment entere in the present case <as improper. 7urther.=M Id. <e conclu e that.ecuting and delivering the foreclosure deed.8.and 6arton :v. . it will introduce Gconclusive evidenceD of its receipt as early as -. 552 AriK.. a at 392. )4.-d 24). this court e(plaine B “Alabama law specifically contemplates that there can be a separation. A%& !ervicin*. -24. >)s.the purchaser. !he %estatement 7!hird8 of ?ropertyE 0ortgages takes the position that a note and mortgage can be separated but that G:t. 554 AriK. and a court of e@uity may take Burisdiction for the purpose of foreclosure.

Aecause <e are reversin* the summary ju *ment on the merits. %mon* other thin*s. passes to the transferee the lien of the vendor of the lands. e.. 2012. 7e eral Nat9l )ort*. 3n this case. 3 must conclu e that 7annie )ae faile to present a prima facie case that 1ver=ome ha ac#uire the ri*ht to foreclose on 4ray9s mort*a*e by virtue of a purporte assi*nment of that mort*a*e from )1"! to 1ver=ome. ' GGG -%la.D8> Nevin 0. 2n er our supreme court9s recent hol in* in =arris.7 to the money secure by the mort*a*e at issue. &o e 1/7. 1ver=ome coul foreclose an transfer the property via a foreclosure ee to 7annie )ae only if. !ee &re<s v. 3n =arris v. or nominee. "1L1"!1$ %N$ "1)%N$1$. 201'? GGG !o.pressed to be with or without recourse on the transferor. 2007. ' +88. GGG !o. 7annie )ae faile to present prima facie evi ence that either the mort*a*e or the note ha been transferre to 1ver=ome )ort*a*e &ompany before 1ver=ome con ucte the foreclosure sale. 11100.7 to receive the money secure by a mort*a*e. % promissory note secure by a mort*a*e that is in orse in blan@ may be transferre merely by possession. J 9H)H. Ill.10..7G!he transfer of a ' note given for the purchase money of lands. purporte to assi*n to 1ver=ome the mort*a*e e(ecute by 4ray in favor of 3r<in )ort*a*e &ompany... The lan*ua*e specifyin* the ri*hts affor e )1"! un er 4ray9s mort*a*e is i entical to the lan*ua*e settin* forth the ri*hts )1"! ha un er the mort*a*e at issue in =arris. 201'. '8 !o. if )1"! <as not entitle to receive the money secure by the mort*a*e from 4ray. )cHin*. )oore. 0resi in* Ju *e. 3 believe the hol in* in =arris controls this issue in this case. joins. T=:)0!:N. %ev.5. 1ode 5<4). 7. <e pretermit iscussion of those ar*uments. in support of its summary.. <e reverse the summary ju *ment an reman this cause for further procee in*s. >)s. 1'. )ort*a*e 1lectronic "e*istration !ystems. 7annie )ae has not ar*ue that at the time )1"! e(ecute its purporte assi*nment of 4ray9s mort*a*e to 1ver=ome. the in#uiry oes not necessarily en <hen it is etermine that a vali or timely assi*nment of a mort*a*e i not occur. 5 7-. in its capacity as nominee for 3r<in )ort*a*e &ompany. This court has e(plaine B “!he promissory note evidencing that debt was a bearer instrument that could be transferred in two waysE by delivery of possession or by written assignment.. E '. %ss9n.. 1ver=ome ha the ri*ht to receive the money secure by the mort*a*e. )1"! ha a ri*ht to receive the money secure by the mort*a*e. 100 !o. -5)1"!6. 3n other <or s. whether the transfer be by delivery merely or in writing. 3nc. P. $eutsche Aan@ National Trust &o.. at the time it foreclose .. concurs in the result only. the ori*inal mort*a*ee. Thompson. 0ittman. 6udspeth. ' at GGG.. <hich Thomas. it coul not vali ly assi*n to 1ver=ome the ri*ht to receive that money. GGG !o. 5. of a len er is not entitle un er E '. )1"! coul not properly assi*n the ri*ht to the payment of the money secure by 4ray9s mort*a*e to 1ver=ome. 0. the parties a*ree that the lan*ua*e etailin* )1"!9s ri*hts un er the mort*a*e i not entitle )1"! un er E '. %ccor in*ly. %pp. the a*ent may not purport to transfer the ri*ht to the receive that money on behalf of the len er. 35 /. >1? The recor in icates that on )ay 10.J. 0erry v. 3n =arris. =o<ever. This court has reco*niMe that a mort*a*e nee not be assi*ne in or er to enable an o<ner of the ebt secure by that mort*a*e to foreclose un er a po<er of sale. 200/. ' at GGG. 3 . un er the facts of this case. an our supreme court accepte that a*reement for the purposes of resolvin* the appeal. 10/. 10. 3n efense of the ejectment action initiate by the 7e eral National )ort*a*e %ssociation -57annie )ae6. ' 10/0. Aase on the fore*oin*.. our supreme court hel that <hen an a*ent. an $onal son.. "ee Ala. -%la.ju *ment motion in its ejectment action. J. I.10. the po<er to sell or foreclose is available only to a person or entity entitle to payment of the money secure by the mort*a*e or note.. +/+ -%la. JJ. =arris.4. $iane 4ray ar*ue that the foreclosure ee pursuant to <hich 7annie )ae claime to o<n the property <as invali because there <as no authority to con uct the foreclosure sale upon <hich that ee is base . %la.. <ith <ritin*.4ray ma@es several other ar*uments re*ar in* the propriety of the summary ju *ment an the enial of her motion to stri@e. =o<ever. &iv. concur.8 7stating that Ga plaintiff in a mortgage foreclosure action obtains the right to enforce the note in one of + . concurrin* in the result only. 4ray conten s that. 3n the absence of such ar*uments or evi ence. !ept. 6ave Authority to Assign the 0ortgage /ote in a "tandard Illinois 3oreclosure ActionO. Inc. 1larifying 0urky 0E%"E #oes 0ortgage Electronic %egistration "ystems.>2? =o<ever. there is no such a*reement.

. cmt.. !tur ivant v. 7annie )ae submitte no other evi ence ten in* to in icate that 3r<in )ort*a*e &ompany ha e(ecute an assi*nment of 4ray9s mort*a*e to 1ver=ome. 6owever. J. A%& =:)1 H:%N !1"L3&3N4. )ur oc@ state that. 5>o?n )ay 10. as nominee for 3r<in )ort*a*e &ompany.04 -%la.in.!top7oreclosure7rau . H0. a transfer of the right to enforce must be made by delivery of the instrument> see :former.6 Alac@9s Ha< $ictionary 844 -/th e . "econd. >'? % 5blan@ in orsement6 is 5an in orsement that names no specific payee. b. )ur oc@9s affi avit spea@s only in terms of certain actions bein* ta@en by some unspecifie entityN perhaps 1ver=ome. N% v. 7annie )ae faile to present prima facie evi ence emonstratin* that 1ver=ome ha the authority to foreclose an to issue the foreclosure ee . %s the main opinion in icates. ' 1/. 3r<in )ort*a*e &orporation e(ecute an %ssi*nment of )ort*a*e to 1ver=ome )ort*a*e &ompany -a@a 1verAan@.. A%& =ome Hoan !ervicin*. %laB &ourt of &ivil %ppeals P The recor contains no evi ence in icatin* if or <hen A%& became the hol er of the note secure by the mort*a*e. Aan@ i not submit a <ritten assi*nment of the noteK !ubmitte no evi ence to establish physical elivery of the note. 2011 !20"1)1 &:2"T :7 T=1 !T%T1. 7 . A%NF :7 %)1"3&%. 3 o not a ress the ar*ument raise by 4ray that some portions of 7annie )ae9s evi ence <as not a missible un er "ule . 52. >1? 3n consi erin* this issue. "elate postsB !tur ivant v. 7annie )ae attempte to base its prima facie case in support of ejectment on its claim that it ha a vali foreclosure ee . &iv.96 The e(hibit to <hich )ur oc@ referre in his affi avit <as the )ay 10. or 7-8 through negotiation under the P:niform. H0 No. thus ma@in* the instrument payable to the bearer an ne*otiable by elivery only.. %ccor in*ly.. A%& !ervicin*. purporte assi*nment from )1"!. F%AA% 2012 :F 2' &ase. the recor on appeal contains a blan@ in orsement to 1ver=ome of the note e(ecute by 4ray an secure by the mort*a*e.75<<)8. >2? 3n support of its summary. althou*h this court may not so speculateNin see@in* to accelerate 4ray9s ebt an foreclose base on the purporte assi*nment of the mort*a*e from )1"! to 1ver=ome. the 5Lice 0resi ent for 1verban@ sbm 1verhome.ju *ment motion that 1ver=ome <as in possession of the note. 104 !o. NQ %ppellate $iv. 7annie )ae faile to ma@e a prima facie sho<in* in support of its summary. 1ontracts J 352 :75<958.com 1. 2007.6 3n his affi avit. F%AA% P :F !upreme &ourtB :nly presente evi ence of an in orse . P. blan@ note an an R%ssi*nment of )ort*a*e96 8ith nothin* more A%NF :7 %)1"3&%. N% v. %la. 1:ommercial. 200/.. '..!. =o<ever. %ll ri*hts reserve ...+. at 395. %pp.1.1' 7:"1&H:!2"1 7"%2$ P by $in!7H%. <<<. % copy of the %ssi*nment of )ort*a*e is attache as I1(hibit &..6 $eci e on November 1. 2n Ju icial $ept.. >'? )y revie< of the evi ence in the recor in icates that 7annie )ae faile to present evi ence as to <hether 1ver=ome <as in possession of the note that <as in orse in blan@. to 1ver=ome.ju *ment motion. 2012. . “G*wnership of a contractual obligation can generally be transferred by a document of assignment> see %estatement.D “%estatement 7!hird8 of ?ropertyE 0ortgages J ). 2. 2007. ". 1ver=ome mi*ht have been in possession of the promissory note at the time it foreclose C ho<ever. 20'. &iv. 0. 3 conclu e that 4ray has emonstrate on appeal that the trial court erre in enterin* a summary ju *ment in favor of 7annie )ae. concurs.two primary waysE 758 through proper assignment '. Aessie T.1. Thomas.= &oleman v. 1:ode. 7annie )ae submitte the affi avit of "obin )ur oc@. O 2010... J 3H-.M8. if the obligation is embodied in a negotiable instrument..

each containin* ifferent in orsements. !T%T1 :7 :=3: 3N T=1 &:2"T :7 %001%H! N3NT= J2$3&3%H. Trahey S :hio %ppeals &ourt P 7annie )ae file T8: 3N&:N!3!T1NT copies of the promissory note. 2. =!A& A%NF. 8 . &ourt of %ppeals. .. =!A& 7laB $ist.4. P 5No evi ence on the recor in icatin* that Aan@ <as the hol er of the mort*a*e at the time the complaint <as file 6 3!%A1H )%"4%"3T% 4%!&21. National. 4%!&21 v... %ppellant. 7annie )ae v.!...%. v.. 4th $ist.

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