COURT VACATES SUMMARY JUDGMENT AND ASKS HOW CAN THE PLAINTIFF FORECLOSE ON A MORTGAGE OSTENSIBLY ASSIGNED TO IT (BY MERS) AFTER THE ASSIGNOR HAD ALREADY ASSIGNED THE MORTGAGE TO ANOTHER ASSIGNEE?

Source: Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 18, 2010

FDN attorneys Jeff Barnes, Esq. and local NJ counsel Michael Jacobson, Esq. have scored a stunning victory in New Jersey resulting in the reversal of a previously entered summary judgment and where the court made significant findings as to factual issues surrounding what appears to have been a double assignment by MERS first to CitiMortgage and then to IndyMac. Although the 5-page written trial court opinion is unpublished, the decision cites applicable New Jersey Rules of Civil Procedure and decisional law applied to the facts of the case.

Plaintiff IndyMac had alleged that it was the current holder of the note and mortgage. In granting the borrower’s Motion to Vacate the previously entered summary judgment, the court determined that the lack of clarity in the assignment history warranted vacatur of the summary judgment. As the Motion to Vacate was granted under Rule 4:50-1(f), the one-year limitation to file such a motion was found not to apply.

The court found that the plaintiff had still not established the assignment history of the mortgage as required by Rule 4:64-1(b)(10), and this was a “substantial factual issue” because the plaintiff is required, at the very least, to provide proof of standing to foreclose by some evidence that it has a “stake in the outcome of the action”. The court also found that whether MERS, as nominee, is not in a position to assign the mortgage is a “substantial issue in and of itself” which the courts in New Jersey have not yet addressed.

The court held that based on the alleged assignment history recited by the plaintiff in its amended complaint for foreclosure, MERS as nominee for IndyMac assigned the mortgage to the plaintiff approximately 20 months AFTER it had already assigned the mortgage to MERS as nominee for CitiMortgage, Inc. The court thus stated: “How the plaintiff can foreclose on a mortgage ostensibly assigned to it after the assignor had already assigned the mortgage to another assignee is certainly a triable issue”.

The opinion is consistent with the plethora of opinions previously issued by the United States Supreme Court and the state courts of New York, Ohio, California, and other jurisdictions which have repeatedly held that it is the burden of the plaintiff, in a foreclosure action, to demonstrate that it has standing to foreclose by providing evidence that it has a stake in the outcome of the foreclosure action.

4closureFraud
http://4closurefraud.org/

Comments
5 Responses to “COURT VACATES SUMMARY JUDGMENT AND ASKS HOW CAN THE PLAINTIFF FORECLOSE ON A MORTGAGE OSTENSIBLY ASSIGNED TO IT (BY MERS) AFTER THE ASSIGNOR HAD ALREADY ASSIGNED THE MORTGAGE TO ANOTHER ASSIGNEE?”
  1. ann says:

    Excellent rant I want it thatchgood@aol.com

    • ann says:

      How many judges have lunch with their bank buddies from college making decisions to throw hard working people out of their homes. In my case I was ill for an extended amount of time and now am up and working and ready to resume my payments. I have sent in requested information over and over again and the bank claims they have not made a decision yet. Of course the foreclosure still marches on. The bank keeps asking me to give them money but why would I if they cant decide whether I can stay or not. So I pay them and they throw me out where will the money come from to move. So should I continue to hold onto the cash or risk being left homeless because they haven’t made a decision yet.

      By the way previously I made a typo the reply should have said”Excellent ran I want in”

  2. Andrew says:

    Can you please forward a copy of the decision. I would really like to see it.

  3. The Judge in my NJ case does not want to hear or answer me regarding Standing or Jurisdiction or any of the early on RESPA TILA violations. He pretty much established that from the start. With his subtle sort of roll of the eyes, more of a quiet sound affect and facial expression. He said, If you rescinded then you must have paid them for it to be a rescission (I paraphrase), then he said we did not need to talk about standing and jurisdiction, we will do pre trial discovery. I told him I do not owe this entity anything. Why waste the Courts time, they have no original documents. Well you owe somebody.
    A note: I was in Civil Court at this time, still am, with the original mortgage X company

    Judge did not address the “Answer”. to “Service of Process” the foreclosure that I never saw because it was not served. The Service Company falsified they came to my door gave it to my estranged husband. MERS who acted as Assignor, for some unknown reason, I think because they did not know. MERS signor was an employee of company X. the originator. I provided proof of where my husband was at that time. A regular appointment with a counselor. I had been getting Attorney solicitations and Scam mail from rescue companies, got a little suspicious knowing the Mortgage company. Called the state and county. Yes they filed; XX filed foreclosure before recording assignment and Lis Pendens by a day or two. I kept checking to see if they withdrew or send copy of service that maybe they were going to serve me. No. Handed it in. Of course they said if you did not get how did you answer. Mocking me, disbelief.
    Handed in my discovery and sent out my questions for discovery. The Plaintiff company XX never responded, and neither did MERS, or the Original Mortgage co.X, or Clayton, (Risk/due diligence assessor), the newly assigned, not recorded, Servicer, XXX that had been introduced to me just a few weeks after these bozos XX came along. This was unknown to the party, XX that was pretending to be the holder company X. sent me a copy of the mortgage. which of course I already had.
    Then they, XXX Loan Servicing, introduced two more parties, who they ( XXX), claimed owned the note and mortgage. These companies are A and B, they don’t stay very long. Then a week later another party introduced by the Title co, XXXXX and the Title co said they owned the note and mortgage. They had the original and we could come and see it if we wanted. I called the coXXXXX and they would not give me their first names or the business address, as it turns out they never actually saw the documents, but they are suppose to be original, so of course they assume they are. They were a small company who buys distress properties, is what they told me. They proceeded by way of 3 different employees to give me 3 different Holding company names. did not give in they asked me how much I wanted to pay them that they were the one and only true holder. I said go to the end of the line. NO CUTTING..HMM HEE HEE only kidding. I did tell them to get in line though. never heard from them again.

    Next time in court with the parties, Original companyX and Title Insurance and Broker, me as Plaintiff, this Judge, a different Judge, this guy I like, ( I think,) he told me to tell them X what I want before trial starts. It has been 3 years. Said I wanted them for one to fullfill the promise made in Feb 08 after I had already been requesting the original dox for one year, in writing the Attorney for X said he would have them send, but that they still had not found it and when they did they would send. If not? Never got it, this is what I want. Oh ok. The day it was due I received an explanation from an employee of the mortgage compnay X, saying they sold it, to XXX (actually this party proceeded the others but in this story I announce them now so give them 6 Xs) and she knows that X probably would have sent the original file to companyXXXXXX They may not have known to send it back a few weeks later when we realized it was an accidental assignment. (it was not recorded.) Accident? they then kept it and sold it to the company that has it now.

    But when I talked to XXXXXX hey said that they had it until Mar. 28 2008, which was a few days after the Foreclosing company claimed it as their own, around the 25th. Wait I’m out of breath… ok After Original company X made their statement that was in conflict with the company XX, who was their former subsidary.
    One year they both tried to give me tax return info.

    I had made a motion to joinder parties and to declair party XX not in any position to foreclose, that they did not have standing and that they had not made any statement of right to foreclose they were not at any equitable loss. Dismissal for failure to state a claim. Attorney had only himself and copies to show. That was March. The Judge seemed to speak for the attorney and did not want to hear me. I was denied motion.
    I called the court and asked secretary when they would respond to the rest of the things I asked. She said I don’t know, make a motion, why, they take so much work and are only ignored. I asked about applying to a new Judge. She said you can ask. Now last week the Attorney for XX sends a motion to summary judgement that the in disbelief of my word, the claim I made saying there was no service, despite my answer. This was a significant point of his address. Then he said that I was vague and did not show any material evidence. YES I did, all I have 7 HUD 1 statements made, empty promises of original docs ledgers history fraud fraud fraud, forgery. Yet he did not even answer my depositions. I have a vague complaint that they are not the party who has standing. They chuckled at my unjust enrichment comment in the early weeks.

    Oh I forgot to say we drove an hour and 1/2 to see the documents Attorney for Title Ins co had at a hand writing expert. The real issues were not addressed and he tried to gloss over the fact that they were copies and that the whole issue is that they were photoshopped not hand written. Waste of time

    So there is one Judge who I believe has addressed MERS, he said they are the Nominee and their name is on the paperwork. Well so it is. It is killing me, but really it is a comedy. It is frying my brain. It is a very hard story

    The thing I want to know, no one ever questions. All the foreclosure companies advertising my house and thousands of others online, providing my personal information, who I am how to call me, and the fact that the mortgage company appraised my home less than 1/2 their original appraisal in 2006, end of 2007 worth less than half… Now that NJ homes have gone down a reported 30%, since the beginning of this, and the fact that the construction company who did the addition has done both poor work and damage, not to mention incomplete work. Approximately $100,000. have not been able to do that when I am so occupied by this.

    Why would the Mortgage company need to send paper work to Credit Bureau with my ssn and another a tad scrambled? Is this customary? They make comment no one noticed. Hmmm.

    My former attorney, of about 1 year, finally withdrew back in 2008 I had no more money he did not feel I had much meat in my case. Strange, he made mention in 3 separate documents can’t remember what they were interrogatories answers. They coupled me with the Mortgage company as “Plaintiffs” “the family” together are requesting.. you know. He kept putting off adding the Major party until stat almost ran out, strategy he said. I received a copy of a letter he sent all my opposing councel telling them they should be including the balance I owe them in claim for relief against the named defendants consistent with the cause of action and other causes providing recovery of fees. lets them know he retains this lien over any settlement or judgement afforded.

    Now isn’t that kinda something he should be saying to me, not them. My Civil Court Judge said he has not called for the money has he? I said no not yet. He said I doubt they will.

    I think it is really tacky but maybe it is common. I have to say from an outsiders view of the inside, it is a virtual circus.

    Is it any wonder our Political situation is about to boil over? I saw an article on how the people of Greece want to hold us financially responsible for their collapes, collect it from us.

    I think of this time as so precarious, and it is frightening to be in this position with 2 children while our county teeters on the verge of something that could potentially turn bad.

    Not good. I worry they will hold out long enough until they go bankrupt or taken over by the country Greece, (kidding) before a lot of these banks settle cases.

    I do not want the Govt to bail out the foreclosures. They could make it a bit easier to get through the system. There are many who can’t afford to pay attorneys fees, and they still shoulod be able to go to court and present their case. Obviously not as good as with an attorney but better than nothing. I don’t want tax paying citizens paying for this. What will come though if more and more lose their homes.

    They I am sure made many times more the price of my house. There are so many of these parties just pulling one fraud after another. I rather doubt they lose money, but I had a lot invested in my home.
    Sorry to just go on and on…Thanks for listening.

    • Brenda says:

      We have alot in common… Send me your e-mail and I will share my case and what We have learned. My case is now in Arizona Supreme Courts. It started in December 2009. The court is saying “If you are in default….You have no intrest and are not intitled to any relief! Even fraud.. I have chosen to stand my ground, Fraud vitiates everything! The courts must be held accountable! Its not over until its over! (Raven1962@msn.com)

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