Comments on: Adam Levitin | Ibanez and Securitization Fail https://4closurefraud.org/2011/01/10/adam-levitin-ibanez-and-securitization-fail/ - Fighting Foreclosure Fraud BY SHARING THE KNOWLEDGE Sun, 30 Nov 2025 15:37:31 +0000 hourly 1 https://wordpress.org/?v=7.0.2 By: l vent https://4closurefraud.org/2011/01/10/adam-levitin-ibanez-and-securitization-fail/#comment-17873 Fri, 14 Jan 2011 05:33:05 +0000 https://4closurefraud.org/?p=16633#comment-17873 I found an interesting article on cltv.com entitled: More Banks Walking Away From Homes, Adding to Housing Crisis at: cltv.com/news/ct-biz-0113-walkaway–20110113,0,1284057.story

]]> By: DanJS https://4closurefraud.org/2011/01/10/adam-levitin-ibanez-and-securitization-fail/#comment-17593 Tue, 11 Jan 2011 04:05:17 +0000 https://4closurefraud.org/?p=16633#comment-17593 Foreclosure Time! — Who’s Got the Ball… Not me – Check the Playback! Start Over – Replay! Whaddyamean? The Games Over!…. Replay the Game! Please!!!

http://www.cnbc.com/id/40999895/page/2/

]]> By: Richard F. Kessler https://4closurefraud.org/2011/01/10/adam-levitin-ibanez-and-securitization-fail/#comment-17581 Tue, 11 Jan 2011 00:52:15 +0000 https://4closurefraud.org/?p=16633#comment-17581 It is necessary to understand what Ibanez says and what it does not say. The recent slip opinion of the Massachusetts Supreme Judicial Court in US Bank National as Trustee v. Ibanez, No DSJC 10694 (Sup.Jud.Ct.MA 2011) affirming the decision that the plaintiff which foreclosed the two properties involved did not have clear title because plaintiff was unable to demonstrate it was the holder of the mortgage at the time of foreclosure. Massachusetts is a title theory state and if the mortgage confers the power of sale upon the mortgagee, the mortgagee can exercise the power of sale in the event of default without the intervention of a court. The transfer of the mortgage is a conveyance of an interest in land which must be in writing and signed by the mortgagee of record.
“Like the sale of land itself, the assignment of a mortgage is a conveyance of an interest in land that requires a writing signed by the grantor. See G.L.c. 183, Section 3; Saint Patrick’s Religious, Educ. & Charitable Ass’n v. Hale, 227 Mass 175,177 (1917).” Id at
This language would seem to prohibit transfer of a mortgage by a mortgagee to a successor in interest by electronic document because such a document is arguably not in writing if“writing” must be written on paper and because the electronic document does not contain the wet ink signature of the transferor of the mortgage. However, it seems the Court was disturbed by the date of the citation and was cognizant that much had transpired since 1917.

Accordingly, the Court stated:
‘Where a pool of mortgages is assigned to a securitized trust, the executed agreement which assigns the pool of mortgages, with a schedule of pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder. However there must be proof that the assignment was made by a party that itself held the mortgage. See In re Samuels, 415 B.R. 8, 20 (Bankr.D.Mass.2009). A foreclosing entity may provide a complete chain of assignments linking it to the record holder of the mortgage, or a single assignment from the record holder of the mortgage. See In re Parrish, 326 B.R. 708, 720 (Bankr.N.D). Ohio 2005). (“If the claimant acquired the note and mortgage from the original lender or from another party who acquired it from the original lender, the claimant can meet its burden through evidence that traces the loan from the original lender to the claimant.” Emphasis supplied.
The substitution of the word “evidence” for assignment apparently means that other evidence may be used to demonstrate the requisite ownership of the notes. Such other evidence arguably includes electronic documentation. So long as the purchase agreement from the Depositor to the trustee of the securitized trust specifically includes and identifies the specific mortgage being foreclosed, electronic documents may be used to show the chain by which the Depositor became the holder of the mortgage note.

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