Courts across the country are starting to really beat back the lenders on standing grounds….read on good people. They’re New York Cases, but the judicial groundswell is bubbling.
Mortgage Foreclosure/Standing ““ Plaintiff commenced an action on September 4,
2007 to foreclose a mortgage that was assigned to it on September 17, 2007 by an
instrument which recited that its effective date was July 29, 2007. The Supreme 6
Court, Kings County, denied the Plaintiff’s motion for an Order of Reference,
without prejudice to file a renewed motion within ninety days accompanied by proof
that the Plaintiff owned the mortgage and note prior to the commencement of the
foreclosure. Otherwise, the action would be dismissed for lack of standing.
According to the Court, ” [w]]here there is no evidence that plaintiff, prior to
commencing the foreclosure action, was the holder of the mortgage and note, took
physical delivery of the mortgage and note, or was conveyed the mortgage and note
by written assignment, an assignment’s language purporting to give it retroactive
effect prior to the date of the commencement of the action is insufficient to establish
the plaintiff’s requisite standing”. Washington Mutual Bank v. Patterson, decided
December 15, 2008, is reported at 21 Misc. 3d 1145 and 2008 WL 5233195.
Mortgage Foreclosure/Standing ““ The Supreme Court, Kings County, denied the
foreclosing Plaintiff’s motion for summary judgment and for an Order of Reference,
holding that the Plaintiff lacked standing. It held that the purported assignment of
the note and mortgage by MERS, as nominee for First Franklin, to the Plaintiff was
invalid. It recited that it was executed by an attorney on behalf of MERS pursuant
to a corporate resolution. However, neither a corporate resolution nor a power-of-
attorney was recorded. The Court granted the Plaintiff leave to renew upon
providing the Court within sixty days with (i) a valid assignment of the mortgage,
(ii) an affirmation that the assignor and the assignee consented to simultaneous
representation in connection with the assignment, and (iii) an affidavit explaining
why the Plaintiff purchased a nonperforming loan. In addition, “if a power of
attorney is used for an agent to act as MERS’ assignor of the instant mortgage and
loan to Deutsche Bank, the power of attorney presented to the Court must be an
original or a copy certified by an attorney, pursuant to CPLR Section 2105”
(“Certification by attorney”). Deutsche Bank National Trust Company, as Trustee,
v. Campbell, decided December 16, 2008, is reported at 2008 WL 5220543.
Mortgage Foreclosure/Standing ““ A mortgage foreclosure commenced by New
Century Mortgage Corporation (“New Century”) on March 7, 2007 was dismissed
by the Supreme Court, Kings County, for lack of standing. On May 11, 2007,
MERS, the record holder of the mortgage (which appears to have been intended to
have held the mortgage as nominee for New Century), purportedly assigned the
mortgage to New Century by Assignment of Mortgage which included the phrase:
“Date of Transfer: March 5, 2007”. According to the Court, “[w]here there is no
evidence that plaintiff, prior to commencing the foreclosure action, was the holder
of the mortgage and note, took physical delivery of the mortgage and note, or was
conveyed the mortgage and note by written assignment, an assignment’s language
purporting to give it retroactive effect prior to the date of the commencement of the
action is insufficient to establish the plaintiff’s requisite standing”. In addition, on
April 30, 2007 MERS had assigned the mortgage to a different lender. New Century
Mortgage Corporation v. Durden, decided February 2, 2009, is reported at 22 Misc.
3d 1118 and at 2009 WL 264134.
Mortgage Foreclosure/Standing ““The Defendant in a mortgage foreclosure asserted
that the Plaintiff did not have standing to commence the action on October 11, 2007
since the mortgage being foreclosed and the note it secured were assigned to it by an
assignment dated October 15, 2007 which recited that it was effective on October 8,
2007. The note, endorsed in blank, was delivered to the Plaintiff on October 8, 2007.
According to the Supreme Court, Suffolk County, “an indorsement of a mortgage
note in blank together with its delivery by the owner or its agent to a transferee is
sufficient to transfer ownership of said note and of a mortgage given to secure
it”¦.Said assignment [on October 15, 2007] accurately reflected that the plaintiff
acquired ownership of the note and mortgage on October 8, 2007, by its receipt of
delivery of the note indorsed in blank. The mortgage followed as an incident to the
transfer of the note. The plaintiff was thus the owner of the note and mortgage at
the time of the commencement of this action”. Deutsche Bank National Trust
Company v. Gillio, dated February 26, 2009, is reported at 22 Misc.3d 1131 and at
2009 WL 595560.
