FORECLOSURE DEFENSE RESEARCH ASSISTANCE I

December 17, 2012

FORECLOSURES BY TRUSTS CASES DISMISSED WITH PREJUDICE  

Cases

Bank of New York v. LaFalce,

Case No. 10 06966 (Hillsborough County, Florida 2012)

Trust: TBW Mortgage-Backed, PT Certs., Series 2006-2

“On October 11, 2011, this Court directed Plaintiff to provide some documentation or other evidence showing the authority of the original mortgage holder, Taylor Bean & Whitaker (“TBW”), to assign the subject mortgage to it in light of a bankruptcy filed by TBW in August, 2009. Even after being given additional time to comply, and even after its then-counsel was disqualified after failing to comply, Plaintiff willfully failed to comply with this Court’s Order. Tellingly, even after the Defendant sought entry of Final Judgment based on Plaintiff’s failure to comply with this Order, Plaintiff still failed to comply.”

 

Citibank N.A. v. Murillo,

Index No. 16214/08, 2011 NY Slip Op 21004

(N.Y. Sup. Ct. Kings Co. 2011)

Trust: Bear Stearns AB Trust 2007-SD3

“Today is sixty-four (64) days since I issued my November 4, 2008 order and seventy-nine (79) days since Chief Administrative Judge Pfau issued her Administrative Order with respect to plaintiff’s counsel confirming, in foreclosure actions, the factual accuracy of plaintiff’s court filings and notarizations. I have not received the twice ordered affirmation from plaintiff’s counsel. Therefore, for violation of these orders, the instant foreclosure action is dismissed with prejudice and the notice of pendency is cancelled and discharged.”

 

Deutsche Bank National Trust Company v. Bodzianowski,

Case No. 1:11-cv-01950 (N.D. ILL October 11, 2011)

Trust: NovaStar Mortgage Funding Trust, Series 2006-5

“Defendant’s motion to dismiss for lack of standing is granted.  Case is dismissed with prejudice as to Plaintiff Deutsche Bank and without prejudice as to any other Plaintiff who may have proper standing.”

 

Deutsche Bank v. Francis,

2011 NY Slip Op 50423(U), Index: 10441/09

Trust: GSAMP 2007-FM2

Mortgage Amount: $445,500

“Plaintiff DEUTSCHE BANK lacked standing to foreclose on the instant mortgage and note when this action commenced on April 29, 2009, the day that DEUTSCHE BANK filed the summons, verified complaint and notice of pendency with the Kings County Clerk, because it can not demonstrate that it owned the mortgage and note that day. Plaintiff alleges that the April 21, 2009 assignment from MERS, as nominee for FREMONT, to plaintiff DEUTSCHE BANK was to be recorded. As of today it has not been recorded.”

 

Deutsche Bank v. Lippi,

Case No. CA08-0127 (St. Johns County, Fla. 2010

Trust: GSAMP 2006-FM1

“Even though this Court repeatedly asked Plaintiff to provide pleadings or documents that GSAMP 2006-FM1 was an actual entity that was the real party in interest, and despite numerous requests from Defendant, no allegations were made. Furthermore, the Mortgage at issue on its face showed that Mortgage Electronic Registration Systems, Incorporated (“MERS”) was the nominee for Fremont Investment and Loan. An Assignment of Mortgage, dated after Plaintiff brought this action, showed that MERS was the nominee for America’s Servicing Company (“ASC”). Plaintiff never showed the GSAMP 2006-FM1 had standing to bring the action…

 

THEREFORE, the court hereby ORDERS and ADJUDGES as follows:

1. Defendant’s Motion to Dismiss the Second Amended Complaint is GRANTED with prejudice because over a two year period Plaintiff failed to allege or provide documents demonstrating its right to bring this action.”

Reversed on appeal. 78 So.3d 81 Fla. 5th DCA 2012).

 

HSBC Bank USA, N.A. v. Taher,

32 Misc. 3d. 1208(A), 932 N.Y.S. 2d 760

(N.Y. Sup. Ct. Kings Co. 2011)

Trust: Renaissance Home Equity Loan Trust 2007-2

“Therefore, the continuation of this action by plaintiff HSBC, with its false statements of fact, the use of robosigners, and the disingenuous affirmation of Mr. Cassara, appears to be frivolous…

It is clear that the instant motion for an order of reference “is completely without merit in law” and “asserts material factual statements that are false.” Further, Mr. Cassara’s January 6, 2011 affirmation, with its false and defective statements may be a cause for sanctions.”

 

HSBC Bank v. Yeasmin,

 2010 NY Slip Op 50927

(N.Y. Sup. Ct. Kings Co. 2010)

Trust: Nomura AB Certs., Series 2006-AF1

Mortgage Amount: $624,800

“The instant renewed motion is dismissed for untimeliness. Plaintiff made its renewed motion for an order of reference 204 days late, in violation of the Court’s May 2, 2008 decision and order. Moreover, even if the instant motion was timely, the explanations offered by plaintiff’s counsel, in his affirmation in support of the instant motion and various documents attached to exhibit F of the instant motion, attempting to cure the four defects explained by the Court in the prior May 2, 2008 decision and order, are so incredible, outrageous, ludicrous and disingenuous that they should have been authored by the late Rod Serling, creator of the famous science-fiction television series, The Twilight Zone. Plaintiff’s counsel, Steven J. Baum, P.C., appears to be operating in a parallel mortgage universe, unrelated to the real universe…”

 

U.S. Bank, N.A. v. Emmanuel,

 27 Misc.3d 1220(A), Index No. 19272/09

 (N.Y. Sup. Ct. Kings Co. 2009)

Trust: SG Mortgage Securities AB Certs., Series 2006-FRE2

Mortgage Amount: $480,000

(This dismissal with prejudice was later reversed by 921  N.Y.S.2d 320 (App. Div. 2011).)

“The instant foreclosure action…is denied with prejudice. The instant action is dismissed and the instant notice of pendency is cancelled. Plaintiff U.S. BANK never had standing to prosecute this action because of an ineffective assignment of the subject mortgage and note to it. Plaintiff’s U.S. BANK’s attempt to foreclose upon a mortgage in which it has to legal or equitable interest is without foundation in law or fact.”

 

U.S. Bank, N.A. v. Harpster,

 Case No. S1-2007-CA-6684-ES (Pasco County, Fla. 2010)

Trust: Banc of America Funding 2007-6 Trust

Findings of Fact:

“7) The Assignment, as an instrument of fraud in this Court intentionally perpetrated upon this Court by the Plaintiff, was made to appear as though it was created and notorized (sic) on December 5, 2007.  However, that purported creation/notarization date was facially impossible: the stamp on the notary was dated May 19, 2012.  Since Notary commissions only last four years in Florida (see F.S. Section 117.01 (1)), the notary stamp used on this instrument did not even exist until approximately five months after the purported date on the Assignment.

8) Confirming this, the Notary Bonding Company’s representative, Erika Espinoza, stated in a sworn affidavit that the Notary Stamp used by Terry Rice, the Notary, did not exist on the purported date it was notarized. Specifically, Espinoza testified in her affidavit that the notary stamp didn’t come into existence until sometime in April, 2008, five months after the date on the Assignment…”

(Plaintiff’s complaint dismissed with prejudice, based on the fraud intentionally perpetrated upon the Court by the Plaintiff.)

 

U.S. Bank, N.A. v. Kimball,

 27 A.3d 1087, 2011 VT 81

Trust: RASC 2005-AHL1

Mortgage Amount: $185,520

“At this point, US Bank abandoned its claim of assignment of the mortgage and instead asserted that it held the original note. It submitted the note with an allonge containing two undated specific endorsements, one to US Bank. The supporting affidavit claimed that the note had been endorsed to US Bank, but provided no information about when and failed to explain why a note with a blank endorsement was the basis for the complaint…

In fact, US Bank asserted that the note with the blank endorsement was an earlier copy that was mistakenly attached to the complaint. It also alleged that the blank endorsement was stamped with RFC’s name in 2005. Therefore, it could not possibly have held the original note with a blank endorsement when the complaint was filed. Further, there is no evidence to show that US Bank held the original note endorsed to its name before the complaint was filed. While US Bank eventually produced the original note with an endorsement to it, none of the evidence submitted at summary judgment by US Bank established the timing of the endorsement.”

 

Wells Fargo Bank, N.A. v. Farmer,

19 Misc.3d 1141 (A), 2008 NY Slip Op 51133(U)

(N.Y. Sup. Ct. Kings Co. 2008)

Trust: Park Place Sec., Inc. ABPT Certs., Series 2005

WLL1

Mortgage Amount: $460,000

“In my February 4, 2008 decision and order in the    instant matter I denied without prejudice the application of plaintiff WELLS FARGO BANK, N.A., AS TRUSTEE (WELLS FARGO) for an order of reference…with leave to renew upon providing the Court with: a copy of a valid assignment of the instant mortgage and note to plaintiff WELLS FARGO BANK, N.A., AS TRUSTEE (WELLS FARGO); a satisfactory explanation to questions with respect to the two December 8, 2004 assignments of the instant mortgage and note from ARGENT MORTGAGE COMPANY, LLC (ARGENT) to AMERIQUEST MORTGAGE COMPANY (AMERIQUEST), and then from AMERIQUEST to plaintiff WELLS FARGO… 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…

Further, the second December 8, 2008 assignment, from AMERIQUEST to “Wells Fargo Bank, N.A., as Trustee,” fails to name a beneficiary for the Trustee. The failure to name a beneficiary for the Trustee renders the assignment without merit. It is axiomatic that “[t]here are four essential elements of a trust: (1) a designated beneficiary; (2) a designated trustee; (3) a fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee; and (4) actual delivery or legal assignment of the property to the trustee, with the intention of passing legal title to such property to the trustee (cites mitted)…

Both December 8, 2004 defective assignments – ARGENT to AMERIQUEST and AMERIQUEST to WELLS FARGO – are voided and cancelled. ARGENT is the owner of the FARMER mortgage loan.

 

Wells Fargo Bank, N.A. v. Reyes,

867 N.Y.S.2d 21(N.Y. Sup. Ct. Kings Co. 2008

Trust: Morgan Stanley ABS Capital 1, Inc., MSAC 2007-

HE4

Mortgage Amount: $617,500

“The Court is gravely concerned that it expended scarce resources on a motion by WELLS FARGO, which is not the owner and has never been the owner of the REYES’ mortgage. WELLS FARGO has no standing in the instant action…

It is clear that plaintiff WELLS FARGO lacks standing to foreclose on the instant REYES’ mortgage. WELLS FARGO has failed to establish ownership of the mortgage. Therefore, WELLS FARGO may not seek judicial redress. There are no recorded assignments of the note from MERS as nominee of WMC to any other party, despite WELLS FARGO’s allegation, in ¶ 4 of the February 21, 2008 verified complaint, that the MERS as nominee for WMC mortgage was “assigned to Plaintiff [WELLS FARGO] by assignment(s). Plaintiff is still the owner and holder of the aforementioned instrument(s) [the WMC mortgage].”

…ORDERED, that as plaintiff, WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAPITAL 1 INC., MSAC 2007-HE4, lacks standing and has never been the mortgagee in this foreclosure action, the instant complaint, Index No. 5516/08, is dismissed with prejudice; and it is further ORDERED, that the Notice of Pendency filed with the Kings County Clerk on February 21, 2008, by purported plaintiff, WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAPITAL1 INC., MSAC 2007-HE4, in an action to foreclose a mortgage for real property… is cancelled…”

Dismissal with Prejudice Reversed on Appeal and  Remanded (with significant increased attorney’s fees to the trust).