Case Dismissals for Lack of Standing to Foreclose

http://www.msfraud.org/law/lounge/Standing.html

To see the case, use the link above MSFraud Forum Crosslinks, Findings and Case citations add to Ohio Federal Court Case FORECLOSURE DEFENSE WHERE DO WE STAND ON STANDING
Winter 2011

California Cases

Caporale v. Saxon, Deutsche Bank, Morgan Stanley - Judge We - Order Preliminary Injunction - Daughter-in-law letter to judge - Claims of Saxon - Saxon Motion to Lift Stay - Caporale Memo in Opposition to Motion to Lift Stay - Docket In Re: Vargas - MERS (relief from stay Denied) Judge Bufford (explains authe Dimrock v. Emerald Properties (Opinion: unlawful detainer/qui SAXON MORTGAGE SERVICES, INC., et al., v. HILLERY (Order Granting Homeowner's Rickie Walker v. BAC, EMC Mortgage, Bear Stearns, Citibank, MERS (Full bankruptc

Florida Cases

Brevard County Mortgage Foreclosure Procedures Khan v. Bank of America: (4/11) Because the exhibit to Bank of America’s amended complaint conflicts with America did not establish that it had standing to foreclose the mortgage as a matter of law. As a result, the trial summary judgment of foreclosure in favor of Bank of America. We, therefore, reverse the final summary judgment of foreclosure and remand for further proceedings. Bank of America v. Nebraska Investments (1/28/11) This case is DISMISSED without prejudice. No other case, other than a request for rehearing if appropriate. It is confiscatory of the Court's time Deutsche Bank v. Lippi (2/2010) (Defendant's Amended Motion to Dismiss the Pleadings of Plaintiff is GR period Plaintiff failed to allege or provide documents demonstrating its right to bring this action. Independen Pleadings of Plaintiff is GRANTED as a sanction under the dictates of the Ham de DLJ MORTGAGE CAPITAL, INC., NEW CENTURY MORTGAGE CORPORATION, SELECT PO DEFAULT LAW GROUP v. Thornberry - ORDER REGARDING PLAINTIFF'S MOTION TO RE-ESTABLI - DLJ Mortgage's mortgage foreclosure Complaint - DISMISSED WITH PREJUDICE (Update from Thornberry: 10/17/10 - The bank continued to come back and the 5th judge in the matter REVERSED the D

injustice!!!! The first judge DWP without a hearing for lack of standing - no note due to FL STAT 71.011. but bank got latest judge hearing but quotes no FL STAT or code that states a hearing is mandatory when dealing with dism

Deutsche Bank's Summary Judgment Denied IndyMac v. Rogers (Rogers Motion to Dismiss GRANTED), March 2010, PIN Bac Funding Consortium v. Jacques, U.S. Bank, C-Bass (U.S. Bank failed to establish its status as leg App. Court reversed SJ) - Bac Initial Brief in Jacques VERIZZO v. Bank of New York MERS (Summary Judgment REVERSED & REMANDED, la

- Verizzo v. Bank of New York (Order of Dismissal against BONY) ("based on the late service and the existence of a genuine issue of material fact, we reverse the final summary judgment a Wells Fargo v. Chesney [While "non-negotiable" instruments may also be assigned, there is no as and Mortgage attached to the Compliant are made in favor of Washington Mutual, not Wells Fargo v. Cirigliano (3/10) (No evidence to show a chain of title of how the note U.S. Bank v. Harpster (3/10) (Notary fraud, assignment fraud, fraud upon the court, dism GMAC v. Visicaro (4/10) (Hearing, judge sets aside his previous grant of summar Riggs v. Aurora Loan Servicing (4/21/2010) (Court of Appeals the endorsement in blank is unsig issue of material fact as to whether Aurora is the lawful owner and holder of the note and/ Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), there are n o supporting record to establish that Aurora validly owns and holds the note and mortgage, no evidence of a of the debt nor any other evidence of an effective transfer. Thus, we reverse the summary ju U.S. Bank v. McLeod (May 7, 2010 - Judge Traynor) (Order Vacated - Dismissed w/preju HSBC Bank v. Eslava - (Transcript on Hearing To Show Cause on May 7, 2010 - Judge Jennifer Bailey) (The a final judgment is null and void. Mr. Eslava is relieved of the debt. The title shall be conveyed back to M liability for the note no longer exists. BAC v. Box (6/3/2010) (Arthur B. Federman - Bankruptcy Judge) (Trustee opposed BAC's request for relief U.S. Bank v. Troche (May/2010) (Order setting aside judgment an HSBC v Ruscalleda (June 9 2010) (Based on the unique circumstances of this case, we conclude that the trial continue the final summary judgment hearing and by failing to grant the motion to transfer the foreclosure ac action was pending in which another bank was simultaneously seeking to forec Aurora, MERS v. Da Costa (4/2010) ("[T]he plaintiffs lack of standing at the inception of the case is not a def after the case is filed." There is no evidence of record that establishes that MERS was authorized to assign anything to Plaintiff, and assignment were valid, it was not executed until after the complaint was filed. Therefore, Plaintiff s standing a complaint and the exhibits attached thereto. It appears on the face of those exhibits that an entity other than Pl contrary allegations contained in either version of the complaint. Plaintiff lacks standing now based on the s MERS. Plaintiff lacked standing at the inception of the case based on those substantive deficiencies and the standing, there is no justiciable controversy between the parties, and this case IndyMac v. Keyser (June 2010) (Judgment and sale set asid M&T BANK v. Smith - A CASE OF SPECIAL INTEREST TO FLORIDA FORECLOSURE DEFE (June 2010) [t]he Court finds the plaintiff lacks standing and is not a proper party to the suit. The Court has be initial Complaint, the Plaintiff alleged it owned the note that was lost. Then Plaintiff alleged that not only was the Note by Assignment. After both of these Complaints were dismissed, Plaintiff then alleged that Wells Farg servicer of the loan. Moreover, the Assignment on which Plaintiff relied in its First Amended Complaint po inconsistent with the Mortgage, Note, stamps allegedly affixed to the Note, BAC/Countrywide v. Stentz - (12/10) (6th Circuit, Pasco County, Florida) Motion to Dismiss Granted with to bearer becomes the holder of the check… but does not become the owner of it.” - Judge Tepper

New York / New Jersey Cases

Supplemental research by William A. Roper Jr. Downey v. Trujillo (8/11)(Schack) Dismissed with prejudice. Schack was angered after lawyer Margaret Carucci said in a s

24, 2010 claimed to have personally reviewed and could vouch for the accuracy of the paperwork underlying Trujillo's foreclosure -Deutsche Bank v. Mitchell(8/11) Summary judgment reversed - sale vacated. The assignment was not perfected until after of having possessed the underlying note prior to filing the complaint. If plaintiff did not have the note when it filed the original comp standing by filing an amended complaint.

We vacate the sheriff's sale, the final judgment and the order granting summary judgment and remand to the trial court. Deutsche Bank v. Francis (Dismissed With Prejudice-Schack)(3/11): I discovered that there is no record of plaintiff DEUTS Therefore, with plaintiff DEUTSCHE BANK lacking standing, the instant action is dismissed with prejudice and the notice of pende A want of "standing to sue," in other words, is just another way of saying that this particular plaintiff is not involved in a genuine con "jurisdictional" dismissal: (1) the courts have jurisdiction only over controversies; (2) a plaintiff found to lack "standing" is not involved in a controversy; and (3) the courts therefore have no jurisdiction of the case when s Johnston v. HSBC** ((complaint), (extrinsic fraud, real party) (3/11) Extrinsic Fraud: Because the fraud is extrinsic in nature, HSBC is precluded from raising the doctrine of-- res judicata --as a defens that the claimant has federal jurisdiction “real party in interest” status. Real Party in interest: HSBC MORTGAGE CORP (USA) (hereinafter, “HSBC”) does not qualify as a “real party of interest" pursuant to Rule 17 of the Federal Rules of Civil Procedure, which provides: "An action must be prosecuted in rule is to require that an action be brought "in the name of the party who possesses the substantive right being asserted under the appl PRACTICE AND PROCEDURE: CIVIL 2d § 1541 (1990) ("WRIGHT").

ALE v. U.S. Bank (Expunge Mortgage and Assignment*)(1/11) American Brokers Conduit v. ZAMALLOA - Judge SCHACK 11Sep2007 EMC Mortgage v. Wink - (1/07) MERS, which is not itself the owner and holder of the note and mortgage, d of the note and mortgage to plaintiff. Judgment of foreclosure and sale is denied Countrywide Home Loans, Inc. v Taylor - Mayer, J., Supreme Court, Suffolk County / Sept. 2007 American Brokers Conduit v. ZAMALLOA - Judge SCHACK 28Jan2008 Aurora Loan Services v. MACPHERSON - Judge FARNETI 11Mar2008 Bank of New York v. SINGH - Judge KURTZ 14Dec2007 Bank of New York v. TORRES - Judge COSTELLO 11Mar2008 Bank of New York v. OROSCO - Judge SCHACK 19Nov2007 CitiMortgage Inc. v. BROWN - Judge FARNETI 13Mar2008 Countrywide Mortgage v. BERLIUK - Judge COSTELLO 13Mar2008 Deutsche Bank v. Barnes-Judgment Entry Deutsche Bank v. Barnes-Withdrawal of Objections and Motion to Dismiss Deutsche Bank v. ALEMANY Judge COSTELLO 07Jan2008 Deutsche Bank v. Benjamin CRUZ - JudgeKURTZ 21May2008 Deutsche Bank v. Yobanna CRUZ - Judge KURTZ 21May2008 Deutsche Bank v. CABAROY - Judge COSTELLO 02Apr2008 he Bank v. CASTELLANOS / 2007NYSlipOp50978U/- Judge SCHACK 11May2007 HE Bank v. CASTELLANOS/ 2008NYSlipOp50033U/ - Judge SCHACK 14Jan2008 HSBC v. Valentin - Judge SCHACK calls them liars and dismisses WITH prejudice ** Deutsche Bank v. CLOUDEN / 2007NYSlipOp51767U/ Judge SCHACK 18Sep2007 Deutsche Bank v. EZAGUI - Judge SCHACK 21Dec2007 Deutsche Bank v. GRANT - Judge SCHACK 25Apr2008 Deutsche Bank v. HARRIS - Judge SCHACK 05Feb2008 Deutsche Bank v. LaCrosse,Cede,DTC Complaint Deutsche Bank v. NICHOLLS - Judge KURTZ 21May2008 Deutsche Bank v. RYAN - Judge KURTZ 29Jan2008 Deutsche Bank v. SAMPSON - Judge KURTZ 16Jan2008 Deutsche v. Marche - Order to Show Cause to VACATE Judgment of Foreclosure - 11June2009 GMAC Mortgage LLC v. MATTHEWS - Judge KURTZ 10Jan2008 GMAC Mortgage LLC v. SERAFINE - Judge COSTELLO 08Jan2008 HSBC Bank USA NA v. CIPRIANI Judge COSTELLO 08Jan2008 HSBC Bank USA NA v. JACK - Judge COSTELLO 02Apr2008 IndyMac Bank FSB v. RODNEY-ROSS - Judge KURTZ 15Jan2008

LaSalle Bank NA v. CHARLEUS - Judge KURTZ 03Jan2008 LaSalle Bank NA v. SMALLS - Judge KURTZ 03Jan2008 PHH Mortgage Corp v. BARBER - Judge KURTZ 15Jan2008 Property Asset Management v. HUAYTA 05Dec2007 Rivera, In Re Services LLC v. SATTAR / 2007NYSlipOp51895U/ - Judge SCHACK 09Oct2007 U.S. Bank NA v. AUGUSTE - Judge KURTZ 27Nov2007 U.S. Bank v. Emmanuel - (Judge Schack May 2010) Dismissed with prejudice. “foreclosure of a mortgage ma absent transfer of the debt, the assignment of the mortgage is a nullity". U.S. Bank NA v. GRANT - Judge KURTZ 14Dec2007 U.S. Bank NA v. ROUNDTREE - Judge BURKE 11Oct2007 U.S. Bank NA v. VILLARUEL - Judge KURTZ 01Feb2008 Wells Fargo Bank NA v. HAMPTON - Judge KURTZ 03Jan2008 Wells Fargo, Litton Loan v. Farmer WITH PREJUDICE Judge Schack June2008

Plaintiff has renewed its application for an order of reference for the subject premises, but the papers submitted fail to cure the defects enumerated in my prior decision and order. The purported plaintiff, WELLS FARGO, does not own the instant mortgage loan. Therefore, the instant matter is dismissed with prejudice. - Two invalid assignments of the instant mortgage and note took place, with ARGENT assigning the note and mortgage to AMERIQ mortgage to plaintiff WELLS FARGO. Both of these assignments were not recorded for more than fourteen months, until February 2 Wells Fargo v. Reyes WITH PREJUDICE, Fraud on Court & Sanctions Judge Schack June2008 No defendant answered WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAP been the mortgagee in this foreclosure action, the instant complaint, Index No. 5516/08, is dismissed with prejudice; and it is further County Clerk on February 21, 2008, by purported plaintiff, WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE A CAPITAL1 INC., MSAC 2007-HE4, in an action to foreclose a mortgage for real property located at 379 Lincoln Avenue, Brooklyn cancelled.

Deutsche Bank v. Peabody Judge Nolan (Regulation Z) Indymac Bank,FSB v. Boyd - Schack J. January 2009 Indymac Bank, FSB v. Bethley - Schack, J. February 2009 (The tale of many hats) Indymac Bank, v. Yano-Horoski -Judge Blasts Bank's Foreclosure Conduct and Cancels Mortgage. LaSalle Bank Natl. Assn. v Ahearn - Appellate Division, Third Department (Pro Se)\ NEW JERSEY COURT DISMISSES FORECLOSURE FILED BY DEUTSCHE BANK FOR FAILURE TO HOLDER OF NOTE, SECURITIZED TRUST DOCUMENTS, AND OTHER DOCUMENTS DEMANDED HSBC Bank USA v Miller 2009 NY Slip Op 29444 / Decided on October 29, 2009 / Meddaugh, J. Lasalle Bank v. Smith, MERS (Judge Schack - March 22, 2010) Wells Fargo Bank, Americas Servicing Company, MERS v Hunte (Judge Schack, Apr.14 sanctions.) (The court "discovered that WELLS FARGO executed a satisfaction of the instant mortgage more than ten months

resources on an action that should have been discontinued." “the Court, in its discretion may impose financial sanctions upon any par frivolous conduct.") Chase v. Johnson (Judge Schack May 4, 2010) (vacated judgment of foreclosure and sale with prejudice as plaintiff lacked OneWest Bank v. Cullen (Judge Zwack - March 3, 2010) (The Court finds that OneWest has failed to establish it has stan ARGENT v. Maitland (Aug. 2010) (<CLASS="APPLE-STYLE-SPAN" style="WIDOWS: 2; TEXT-TRANSFORM: non BORDER-COLLAPSE: separate; FONT: 12px/20px Georgia, 'Times New Roman', Times, serif; WHITE-SPACE: normal; O WORD-SPACING: 0px; -webkit-border-horizontal-spacing: 0px; -webkit-border-vertical-spacing: 0px; -webkit-text-decorat -webkit-text-stroke-width: 0px"Judge Schack) Plaintiff’s counsel never notified the Court that the mortgage had been satisfie prejudice. I discovered that the mortgage had been satisfied by personally searching the Automated City Register Informatio Register, New York City Department of Finance. AHMSI’s President and Chief Executive Officer or its Executive Vice Presi Dorchuck, Esq., its counsel, Melissa A. Sposato, Esq. and her firm, Jordan S. Katz, P.C., will be given an opportunity to be he making a “frivolous motion,”

MERS as Nominee for U.S. Bank v. Munoz - (ORDER TO SHOW CAUSE)

Mortgage Electronic Registration System as Nominee for US Bank, and any of its attorneys, agents, successors and assignees, be title on any third party sale of the premises and restrained from evicting the family from the premises. LLP v. Sabine (8/2010) "the assignment produced by LPP is insufficient to demonstrate it has standing as (1) MERS has no own language of the assignment of the mortgage does not evidence an intent to assign the underlying note, (3) the assignment arises out o action, and (4) the provision of mortgage document relied on by LPP does not give MERS the authority to assign the mortgage or the Wells Fargo Bank, N.A. v Hughes (1/10) The terms of the proposed modification agreement, particularly but not exclusive unacceptable to this court. "The above matter is hereby dismissed without prejudice; and it is further ordered, that in the event Well to this borrower and the premises at issue herein, no additional costs or attorney fees will be allowed, absent good cause shown. BACKFIRE! Emigrant Mtge. Co. Inc. v Corcione: (7/10) "unconscionable, unreasonable [and] overreaching" mor

it is, therefore ordered, adjudged and decreed that plaintiff's application for summary judgment and appointmen adjudged and decreed that plaintiff, its successors, assigns and others are<CLASS="APPLE-STYLE-SPAN" st TEXT-TRANSFORM: none; FONT-VARIANT: normal; FONT-STYLE: normal; TEXT-INDENT: 0px; LET separate; FONT-FAMILY: 'Times New Roman', Times, serif; WHITE-SPACE: normal; ORPHANS: 2; COLO -webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px; -webkit-text-decorations-in-effe -webkit-text-stroke-width: 0px" forever barred, foreclosed and prohibited from demanding, collecting or attem the sums in this proceeding delineated as interest, default interest, attorney's fees, legal fees, costs, disbursemen balance, that may have accrued from May 1, 2008 up to the date of this order; and it is further ordered, adjudge against plaintiff Emigrant Mortgage Co. Inc., in the principal sum of $100.000.00 as damages for what he said overreaching" mortgage agreement. Beneficial v. Steele*** (Judge Spinner)(Jan 7/11) An action claiming foreclosure of a mortgage is a suit in equity, Jamaica Savi

very commencement of the proceeding invokes the equity jurisdiction of the Supreme Court. Thus, in order to obtain equitable relief, else such relief will be denied. Thus, where a party comes before the Court and is shown to have acted in a manner which is offensive completely without recourse in a court of equity, no matter what his legal rights may be, York v. Searles 97 AD 331 92nd Dept. 1904 obtain equity, one must do equity. Here, it is irrefutable that Defendant SUSAN STEELE was not a party to the Loan Agreement and certainly did not execute the same did not execute the Loan Agreement that has been presented on this application. Nonetheless, Plaintiff has vigorously prosecuted this money damages against both named Defendants. Under these circumstances, the Court is compelled to conduct a hearing to determin what sanction, if any should be imposed should the Court find a lack of good faith. (Id.)

Ohio Cases
Interim Findings of Effects of Ohio Standing Rulings

Ohio Foreclosure Help Ohio Certificate of Readiness Ohio Foreclosure Process
*Certificate of Readiness for Foreclosure Actions Filed UPDATE: OHIO FORECLOSURE CASES: LENDERS BEWARE*

CENTRAL MORTGAGE COMPANY v. ELIA(June 2011)(REVERSED.The Court found that the conclus conditions precedent had been satisfied was insufficient to prove compliance with Section 22 of the mortgage. CITIMORTGAGE v. ELIA(May 2011)(REVERSED)Defendant-Appellants, Ziad F. Elia and Holley E. Elia Summit County Court of Common Pleas, granting summary judgment in favor of Plaintiff-Appellee, CitiMortg Bank of America v. Miller(REVERSED, lack of standing)(3/11) We conclude that the trial court erred in rendering su

fact exist regarding whether BOA is the real party in interest, and regarding whether BOA is the holder of the note upon which judgm issues of material fact regarding whether BOA is a successor in interest to the original payee, because BOA failed to submit a proper the trial court is Reversed and this cause is Remanded for further proceedings.

Deutsche Bank v. Tripplet (2/11)(Pro Se) Deutsche Bank’s affidavit of ownership, sworn out more than a yea insufficient to vest the bank with standing to file and maintain the action. CITIMORTGAGE v. Slack (2/11) The trial court found that CITI had failed to show that the jurisdictio that any judgment, including judgment on counterclaim, would be a nullity. COA reversed, holding lowe counterclaim. U.S. Bank v. Detweiler (reversed & remanded)(12/10) U.S. Bank v. Duvall (dismissal affirmed)(12/10) Accordingly, we conclude that plaintiff had no stan

defendants on October 15, 2007, because, at that time, Wells Fargo owned the mortgage. Plain that it was the real party in interest at the time the complaint was filed.

Kidd,Wells v. U.S. Bank, Ocwen, MERS, Aegis - Memorandum Opinion Order to Show Cause Motions for Relief from Stay Update: Endorsement of Note by alleged Attorney-in-Fact Memo to All Attorneys on Motions for Relief from Stay Tips for How a Motion for Relief from Stay Can Proceed Smoothly Through the Court Partial Transcript of Hearing on Special Motions Docket Wells Fargo v. Jordan* -Wells Memorandum in Support of Jurisdiction to Ohio Supreme Court - Amicus brief of The Legal Aid Society of Cleveland in support of Jordan - Ohio Supreme Court declines jurisdiction! - Supreme Court Docket National City v. Richards - Notice of Default Cartier Exhibit A ________________________________________/
Whittiker v. Deutsche (MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTIONS
TO DISMISS) Whittiker (PLAINTIFFS’ OBJECTIONS TO REPORT AND RECOMMENDATION) Whittiker (DEFENDANT WELTMAN, WEINBERG & REIS CO., LPA’S RESPONSE TO PLAINTIFFS’ OBJECTIONS TO REPORT AND RECOMMENDATION) Whittiker (RESPONSE TO PLAINTIFFS’ OBJECTIONS TO MAGISTRATE JUDGE PEARSON’S REPORT AND RECOMMENDATION TO GRANT ITS MOTION TO DISMISS)

Novastar v. Snyder* (lack of standing) Snyder (motion to amend w/prejudice) Snyder (response to amend) Wells Fargo v. Byrd* ("Putting the Cart before the House") Ohio 2008 (Reversed), Judge

Washington Mutual v. City of Cleveland (WAMU's motion to dismiss) 2008-Ohio-1177; DLJ Mtge. Capital, Inc. v. Parsons (SJ Reversed for lack of standi Mainsource Bank v. Winafeld (Oct. 29,2007) Mainsource Bank v. Winafeld (Sept. 2, 2008) The record in this matter establishes the assignment of the und

foreclosure action was filed. (T. at 23). In fact, the assignment was dated after the date of the filing of the foreclosure action. Id. Base law, we conclude the trial court properly granted Appellee's motion for sanctions. Deutsche Bank v. TRIPLETT (JUDGMENT: REVERSED(2/11) MERS v. Lambert (2/11)* (attorney fees, TILA, emotional damages) Equity is not served by requirin pay the debts their clients owe to creditors out of the fees attributed to the attorney’s hourly rates for leg contractual fee agreement between the lawyer and client that provides otherwise, if an attorney has earn belong to the attorney, not the client, and may not be used to offset debts or obligations of the client. the him regardless of any controversy regarding the underlying debt.” This rationale serves to facilitate the co provide otherwise would only serve to frustrate the enforcement of the TILA provisions because even atto law may not be compensated for their work. The litigant’s attorney has a legally protected interest to atto provisions."

No Note - Ohio 3/20/08 Great Decision - Everhome v. Rowland Deutsche - Class Action (RICO) Bank of New York v. TORRES - Judge COSTELLO 1 - Deutsche Bank Answer Whittiker - Manley Answer Whittiker Justice Arthur M. Schack Judge Holschuh- Show cause Judge Holschuh- Dismissal of 15 cases (Plaintiffs and Counsel are hereby advised that, if these standing, and Counsel must comply with the Order’s requirements. Failure to do so a second time may result in Judge Boyko's Deutsche Bank Foreclosures DISMISSED Motion to Dismiss Final Order to Dismiss Rose Complaint for Foreclosure Rose Dismissals O'Malley Dismissals City Of Cleveland v. Banks Dowd Dismissal Bank's Response to Order Gaughan - Ameriquest EMC can't find the note Ocwen can't find the note US Bank can't find the Note US Bank - No Note Key Bank - No Note Wells Fargo - Defective pleading Complaint in Jack v. MERS, Citi, Deutsche GMAC v. Marsh FLAGSTAR BANK vs. MOORE (JUDGMENT: REVERSED AND REMANDED) Judge McMonagle (Feb Bank of New York v. Gindele Bank of New York failed to establish an enforceable interest that exi judgment REVERSED and REMANDED) Ohio 2/19/2010

Bank of New York Mellon v. Stout (BONY unregistered - Brief in Support of Motion to Dismiss) Chase v. Banker (Chase's assignments of error are meritless. Since the transfer of property to Smi

mortgage to Chase was also void. Accordingly, the judgment of the trial court is affirmed. U.S. Bank, N.A. v. Richards, 2010-Ohio-981: This decision was a pleasure to read because the Cou stellar job as the Court sustained both of Richards' assignments of error. The Opinion states: "because we have concluded above that the trial court erred in awarding summary judgment t Patricia Richards’ motion to dismiss could not have been moot for that reason. Thus, we sust remand the matter to the trial court for further consideration". <STYLE="LINE-HEIGHT: 100%; m HSBC v. Thompson (All of HSBC's assignments of error having been overruled, the judgment of the trial co One brief was filed by the Ohio Attorney General Richard Cordray (Cordray). The other brief was filed by th Equality; Equal Justice Foundation; Legal Aid Society of Southwest Ohio; Northeast Ohio Legal Aid Ser Seniors, Inc. (collectively Legal Advocates). We have considered those briefs, all of which have been helpful,

Lack of Standing cases in other St

Alabama: Horace v. LaSalle, Bear Stearns, EMC Mortgage, Bank of America (3/11) First, the Court is sur defendant trust (LaSalle) did not comply with the terms of its own PSA and further did not comply with NY La note and mortgage. Plaintiff Horace is a third party beneficiary of the PSA created by defendant trust. LaSalle permanently enjoine Arizona: GMAC v. Weisband (3/2010 - Arizona Bankruptcy Court/Judge Eileen Hollowell) (GMAC has failed to demonstra Arkansas Supreme Court: MERS v. Southwest (MERS does not have legal standing.)

possession of the Note at the evidentiary hearing, it failed to demonstrate that the Note is properly payable to GMAC. Once the secur Garfield

Connecticut: Fleet v. Nazareth (2002- Appeal from Superior Court) We conclude, therefore, that the legislatu mortgage, without having been assigned the note, the ability to foreclose on the property. The judgment is vaca render judgment dismissing the action. LaSalle v. Bialobrzeski (Sept. 2010) When the question regarding the plaintiff's standing was raised, the court sh plaintiff was the owner or holder of the note at the time the action was commenced. (court improperly failed to hinged on factual determination) Idaho: MERS, Litton, HSBC, Fieldstone Mortgage, Citimortgage

Indiana: Elliot v. JPMorgan Chase Bank: Indiana Appellate Court reverses Chase/Ocwen's attempt to forecl McKinney v. Taylor Bean & Whitaker Mortgage: (Nov. 2010) The trial court erred in granting summary ju McKinney's HUD-insured mortgage without first determining that Taylor-Bean had complied with Subpart C-reverse the trial court's grant of summary judgment and remand for further proceedings. Kansas Supreme Court: MERS Landmark (Kesler)

Kentucky: Deutsche Bank v. Augustine (2/18/11) After careful review of the rec did not have standing at the time it commenced this appeal. Maine: MERS/Deutsche v. Saunders (8/2010) We conclude that although MERS is not in fac of our foreclosure statute, 14 M.R.S. §§ 6321-6325, and therefore had no s proceedings, the real party in interest was the Bank and the court did not abus Bank for MERS. Because, however, the Bank was not entitled to summary judgme judgment and remand for further proceedings.
Massachusetts:

Thomas-v-Citimortgage-Allied-Flagstar-MERS: (2/11) -Because Allied did not sign the agreement, it never became binding on th -While the assignment purports to assign both the mortgage and the note, MERS, which is a registry system that tracks the beneficial of the note, and therefore lacked the right to assign it. While MERS was the mortgagee of record, it was acting only as nominee for A the obligation secured by the mortgage for which it is the mortgagee of record. -Id. To be effective, therefore, an allonge must be affixed to a promissory note. See, e.g., In re Shapoval, 2010 WL 4811786, *2 (Ban Flagstar is not affixed to the note, then despite having possession of the note, CitiMortgage lacks the status of "holder" as defined by

Robin_Hayes_v._Deutsche_Bank Landmark Case

Ibanez case compendium
U.S. Bank v. Ibanez_ Wells Fargo v. LaRace Ibanez - Memorandum in Opposition to Plaintiff's Motion To Vacate Supreme Court: Wells Fargo Reply brief U.S. Bank Reply brief BEVILACQUA v. RODRIGUEZ Case to watch***

Plaintiff Francis Bevilaqua holds no title to the property at 126-128 Summer Street in Haverhill. That title is held by defendant Pablo US Bank, N.A., which conducted an invalid foreclosure sale on the property (it was not the holder of the mortgage at the time the sal #[Note 1] and thus acquired nothing from that sale. See US Bank v. Ibanez, 17 LCR 202 (Mar. 26, 2009) & 17 LCR 679 (Oct. 14, 20 convey, and its purported conveyance to Mr. Bevilaqua was a nullity. See Bongaards v. Millen, # Despite this, Mr. Bevilaqua now seeks to create a full, fee simple title in himself — quite literally, something from nothing — throug so, for the reasons set forth below. Accordingly, his complaint is DISMISSED in its entir BEVILACQUA v. RODRIGUEZ ***(4/11)(Amicus Brief of Professors Levitin, Peterson, Porter, Pottow) The principle of nemo dat quod non habet-that you can't give what you don't have-is the bedrock principle on which all commercial l It is irrelevant whether Mr. Bevilacqua was a good faith purchaser, as the nemo dat doctrine trumps the bond fide purchase doctrine. Accordingly, U.S. Bank, N.A., was no more capable of passing on good title to the Rodriguez property than a common thief. The Recording of a Deed Is a Ministerial Act that Cannot Create Title. BEVILACQUA v. RODRIGUEZ ***(4/11)(Amicus Brief of Attorney General Coakley) This Court has consistently held that a plaintiff must have a claim to legal title for the property at issue in order to have standing. Mr. Because U.S. Bank lacked a valid assignment, it was not the assignee of the mortgage upon which it purported to foreclose. Thus, the was invalid. Michigan: MERS Shut Down in Michigan (4/11) Court of Appeals / Before: WILDER, P.J., and SERVITTO and SHAPIRO, JJ. H any interest in the loan in order to avoid the legal responsibilities of a lender, MERS nevertheless claims in the instant case that it can the statute affords only to those mortgagees who also own an interest in the loan. But as the Nebraska court stated in adopting MERS debt because MERS itself has not extended any credit, and none of the mortgage debtors owe MERS any money." MERS did not own the indebtedness, own an interest in the indebtedness secured by the mortgage, or service the mortgage. MERS' in foreclosure proceedings in both cases void ab initio. Thus, the circuit courts improperly affirmed the district courts' decisions to proc properties. Hendricks v. U.S. Bank (FC sale VOID) (6/11) The Court declares that the foreclosure sale that occurred on February 11, 2010 c to MCR 2.116 (C)(8), as Defendant, U.S. Bank, N.A. was not entitled to foreclose on Plaintiffs' property.

Missouri: BELLISTRI v. OCWEN (2009) (Ocwen lacked a legally cognizable interest in the property, and BELLISTRI v. OCWEN Appeal (4/2010) Appeal (4/2010) (Separation of Note & Mortgage) (Missou "In the event that the note and the deed of trust are split, the note, as a practical matter becomes unsecu trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the note. Id. Without the agency relationship, the person holding only the note lacks the power holding only the deed of trust will never experience default because only the holder of the note is entitled mortgage loan became ineffectual when the note holder did not also hold the deed of trust." Id. Bellistri Nevada: MERS crushed: In re Mitchell MERS Smackdown in Nevada: In re Hawkins <ALIGN="LEFT"New Jersey: BONY v. Elghossain (4/11) Does a mortgage lender's Notice of Intent to Foreclose satisf

and that the lender as well as the lender's representative be identified in that notice. The lender and the lender’s representation must b is deficient. The foreclosure complaint is dismissed without prejudice does a mortgage lender's "servicer's" Notice of Intent to Forecl the lender and that the lender as well as the lender's representative be identified in that notice. The lender and the lender’s representat the motion is deficient. The foreclosure complaint is dismissed without prejudice. <ALIGN="LEFT"

Bank of New York v. Raftogianis (2010) In this case, there are no compelling reasons to permit plain complaint has been dismissed. Wells Fargo v. Ford (reversed-lack of standing)(1/11) Well-reasoned opinion detailing why WF did not have standing. "T
its motion for summary judgment to establish its status as a holder were not properly authenticated".

Oklahoma: BAC/MERS v.White (12/10-Oklahoma Court of Appeals) Summary Judgment reversed and remanded to trial.

Texas: MERS v. Young / 2nd Circuit Court of Appeals Norwood v. Chase Bank, Chase Home Finance** (1/11)(ANDREW W. AUSTIN, UNITED STATES MAGISTRATE J

Magistrate Judge to the United States Senior Judge) This "excellent analysis" details the requirements of a foreclosing party to pr ET AL

UTAH: JUDGE ORDERS INJUNCTION STOPPING ALL FORECLOSURE PROCEEDINGS BY BANK OF AMERICA

Vermont: MERS v. Johnson - DISMISSED for lack of standing. The Court’s Order, issued August 27, 2 Judgment against the defendants Frank and Ellen Johnston is VACATED. U.S. Bank v. KimballVermont Supreme Court (7/11) What should have here been a fairly straightforward, if not a summ

US Bank's failure to marshal its case before compelling homeowner and the court to waste time and resources, twice, by respond inequitable in dismissing this matter

Washington: In Re: Jacobson (UBS)(another chopped up mess) "As the motion was not brought in the nam

bring it been established, it will be DENIED." Wisconsin: Aurora v. Carlsen: We conclude that the circuit court’s finding that Aurora was the holder of the note, a findi admissible evidence. We therefore reverse the judgment. Conner lacked the personal knowledge needed to authenticate Exhibit D. See WIS. STAT. § 909.01 (document requirement is satisfied “by evidence sufficient to support a finding that the matter in question is what its propo

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