Below is a well thought out decision by the SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION.
The court decided that Wells Fargo lacked standing to foreclose.
Some excerpts from the opinion…
(Emphasis added by 4F)
WELLS FARGO BANK, N.A.,
SANDRA A. FORD,
This appeal presents significant issues regarding the evidence required to establish the standing of an alleged assignee of a mortgage and negotiable note to maintain a foreclosure action.
On March 6, 2005, defendant Sandra A. Ford executed a negotiable note to secure repayment of $403,750 she borrowed from Argent Mortgage Company (Argent) and a mortgage on her residence in Westwood. Defendant alleges that Argent engaged in various predatory and fraudulent acts in connection with this transaction.
Five days later, on March 11, 2005, Argent purportedly assigned the mortgage and note to plaintiff Wells Fargo Bank, N.A. (Wells Fargo). Wells Fargo claims that it acquired the status of a holder in due course as a result of this assignment and therefore is not subject to any of the defenses defendant may have been able to assert against Argent.
Defendant allegedly stopped making payments on the note in the spring of 2006, and on July 14, 2006, Wells Fargo filed this mortgage foreclosure action. In an amended complaint, Wells Fargo asserted that Argent had assigned the mortgage and note to Wells Fargo but that the assignment had not yet been recorded.
Wells Fargo subsequently filed a motion for summary judgment. This motion was supported by a certification of Josh Baxley, who identified himself as “Supervisor of Fidelity National as an attorney in fact for HomEq Servicing Corporation as attorney in fact for [Wells Fargo].” Baxley’s certification stated: “I have knowledge of the amount due Plaintiff for principal, interest and/or other charges pursuant to the mortgage due upon the mortgage made by Sandra A. Ford dated March 6, 2005, given to Argent Mortgage Company, LLC, to secure the sum of $403,750.00.” . Baxley’s certification also alleged that Wells Fargo is “the holder and owner of the said Note/Bond and Mortgage” executed by defendant and that the exhibits.
Attached to his certification, which appear to be a mortgage and note signed by defendant, were “true copies.” Again, the source of this purported knowledge was not indicated. The exhibits attached to the Baxley certification did not include the purported assignment of the mortgage.
The trial court issued a brief oral opinion granting Wells Fargo’s motion for summary judgment. The court observed that defendant “has raised numerous serious disturbing allegations relating to the originator of this loan [Argent], which if true would be a substantial violation of law and substantial violation of her rights.” Nevertheless, the court concluded that those allegations did not provide a defense to Wells Fargo’s foreclosure action because Wells Fargo was a “holder in due course” of the mortgage and note. The court apparently based this conclusion in part on a document attached to Wells Fargo’s reply brief, entitled “Assignment of Mortgage,” which was not referred to in Baxley’s certification or authenticated in any other manner.
Defendant filed a notice of appeal from the judgment.
On appeal, defendant argues that (1) Wells Fargo failed to establish that it is the holder of the negotiable note she gave to Argent and therefore lacks standing to pursue this foreclosure action; (2) even if Wells Fargo is the holder of the note, it failed to establish that it is a holder in due course and therefore, the trial court erred in concluding that Wells Fargo is not subject to the defenses asserted by defendant based on Argent’s alleged predatory and fraudulent acts in connection with execution of the mortgage and note; and (3) even if Wells Fargo is a holder in due course, it still would be subject to certain defenses and statutory claims defendant asserted in her answer and counterclaim.
We conclude that Wells Fargo failed to establish its standing to pursue this foreclosure action. Therefore, the summary judgment in Wells Fargo’s favor must be reversed and the case remanded to the trial court.
The Baxley certification Wells Fargo submitted in support of its motion for summary judgment alleged that “[p]laintiff is still the holder and owner of the said Note/Bond and mortgage,” and a copy of the mortgage and note was attached to the certification. In addition, Wells Fargo submitted a document that purported to be an assignment of the mortgage, which stated that it was an assignment of “the described Mortgage, together with the certain note(s) described
therein with all interest, all liens, and any rights due or to become due thereon.”
If properly authenticated, these documents could be found sufficient to establish that Wells Fargo was a “nonholder in possession of the [note] who has the rights of a holder.”
Baxley’s certification does not allege that he has personal knowledge that Wells Fargo is the holder and owner of the note. In fact, the certification does not give any indication how Baxley obtained this alleged knowledge. The certification also does not indicate the source of Baxley’s alleged knowledge that the attached mortgage and note are “true copies.”
Furthermore, the purported assignment of the mortgage, which an assignee must produce to maintain a foreclosure action, see N.J.S.A. 46:9-9, was not authenticated in any manner; it was simply attached to a reply brief. The trial court should not have considered this document unless it was authenticated by an affidavit or certification based on personal knowledge.
For these reasons, the summary judgment granted to Wells Fargo must be reversed and the case remanded to the trial court because Wells Fargo did not establish its standing to pursue this foreclosure action by competent evidence. On the remand, defendant may conduct appropriate discovery, including taking the deposition of Baxley and the person who purported to assign the mortgage and note to Wells Fargo on behalf of Argent. Our conclusion that the summary judgment must be reversed because Wells Fargo failed to establish its standing to maintain this action makes it unnecessary to address defendant’s other arguments. However, for the guidance of the trial court in the event Wells Fargo is able to establish its standing on remand, we note that even though Wells Fargo could become a “holder” of the note under N.J.S.A. 12A:3-201(b) if Argent indorsed the note to Wells Fargo even at this late date, see UCC Comment 3 to N.J.S.A. 12A:3-203, Wells Fargo would not thereby become a “holder in due course” that could avoid whatever defenses defendant would have to a claim by Argent because Wells Fargo is now aware of those defenses.
Consequently, if Wells Fargo produces an indorsed copy of the note on the remand, the date of that indorsement would be a critical factual issue in determining whether Wells Fargo is a holder in due course. Accordingly, the summary judgment in favor of Wells Fargo is reversed and the case is remanded to the trial court for further proceedings in conformity with this opinion.
You can check out the full 13 page opinion below…
WELLS FARGO BANK, N.A., as Trustee, Plaintiff-Respondent, v. SANDRA A. FORD, Defendant-Appellant.
Man they said the police already told them banks that the real owner not in it to find him and turn it over too him , then they said the wellsfargo bank found him , but started playing around with the financer , man , they must hate that financer , because they must feel he a do a great thing with all of that . How do they no he a do a good thing with it tho , what’s making them hate this 21 century banker. . I don’t no what to belive about , god and the police and the banks no more , are they all a joke ?
In 2002 gloria jean mayes got a hold of 200 billion worth of realistate , by breaking in the company office , and halling the deeds out of the office with out a say so to proceed . Isent that burgery .and theft by takin .all the realistate people have been buying from the companies is stolen . Fannie mae , and ginger mae ,country wide investment llc , she been selling the realistate from the company assets , by defraud . Gloria jackson michael jackson . Jpmorgan , bearstern , emc mortgage corp,ageis mortgage ,fair bank ,wachovia bank , .we don’t play this fraud in state of texas , gloria mayes . We been reading all the horror story on u .we rounding up a lot of fraud charges aganist u . A p giannini grandaughter sayes , they are idiots she right , if they think we a not stop all of this fraud .
Boy can somebody make the theves get out . Abn amro the great lion bank of ohio , was sopposed to be shut down by fdic , in 2004 , from the arrest of michael harris ,and emerson home ltd , which wellsfargo and wachovia bank was attacted to that fraud scam . Which is view able on the mortgage fraud blog . Its self . Michael pop grimes sr and michael harriss . Both them to gether , they just robbing people for their house , take them . Under the real , owner u probly get 3 to 4 month off , on a mortgage , and some of u walk away with the house free . U see a real sellman banker . Do this for fun . They not doing for fun . They doing it for real , real fraud , and the police haven’t stop them yet . And the 2 defendents name above been arrested by fbi in 2004 atl ga . Its all fraud . All of it .
Hey we missing something here , why haven’t the judge brougt up , gloria mayes , and the fraudulent full power of attorney. She atained from the fulton county probate court atl ga 30303 . She has( full) (power) , that mean the monster at wellsfargo has to do what she says , the bank of america , jpmorgan . All of the companies asset is in her hand . Granted seal by the probate court judge .
A p giannni web site , overheard at alliance bancorp , has a overload of messeges on the fraud . I’m going to buy the hold usa of america, this, time . 18 figures of weath a min , let’s go . Michael awj grimes . Super power color – are , white – black . 2 tone . . The wellsfargo cereal in store soon .
Wellsfargo . My employees , over at wachovia said they new , this fraud . And I said yes , very good u new . And we have stop the fraud , but its started back , well stop it again .
Wells Fargo Gone Wild. Out of Control. They are equally as as bad as Bank of America. Give the house to the borrower. Close down the bad banks who have harmed the American people.
$1,000,000 in damages, minimun to the borrower.
My Fellow Americans,
This is exactly an example of what is going on in our country today. The pretender Lender or Servicer continues using people (robo-signers) to prepare falsified documentation to show the Judge they are the Note Holder in due course, when in reality they do not have anything to show. They do not have The Original Note, The Assignment of the Note, or even the Recording of the Transfer of the Note to The Trustee in trust. Therefore, they do not have Standing in Court. We are facing this problem every single day with millions of Unlawful Foreclosures all over the country and yet the Government or the Judicial System does not care to do anything about it.
Especially in the Non-Judicial States like California, this is happening because many people do not know what to do. They simply take it face value. They feel so shame that they can not live by their expected responsibilities of paying their mortgage of their homes. People do not have any knowledge of the loan documents and what the banks had done for the last decade through Securitization of their Notes through Wall St. The don’t even know what MERS is in their Deed of Trust. They were only told that their mortgages were going to be sold and that they will receive in the mail the address where to send their payments.
The lenders failed to disclose many material facts to the homeowners. For example, who is the New Note Holder? (Investor), how much they sold the Note to the private investors? and When did they transfer the Assignment of the Note and Recording of the Note to The Trustee in trust? The lenders broke many laws in TILA, RESPA, Fair Business Practice Act, and many consumer laws. The lender also broke many laws to the U.S. Government. If they engaged in selling Notes in the secondary market through Securitization, as we know through now the new GSE (Fannie Mae and Freddie Mac) government agencies, they have to have a license through The SEC and the notes needed to be transferred to The Trustee with the recorded Assignment of the Note within 90 days to avoid paying taxes. This falls into The REMIC and the RICO Act.
Many lenders did not do the transfer and the recording of the notes to the trustee. This is why they claim the notes were lost or stolen in their affidavits and file for a summary judgment to expedite the case and speedy foreclosures. They are taking advantage of no well educated Judges in this subject and the chaos of what is going on in the economy. This is why millions of homes had been taken by the banks and the servicers with the rush of getting as many homes for the last four years and will continue to do for as long as we and the judges let them. As of today, the banks and servicers already have taken more than 3 million homes in foreclosure. Last year alone, they broke a record of 1,050,500 homes gone in foreclosure.
One of the main reasons the pretender lenders and servicers take people’s homes in foreclosure is because millions of people do not contest the foreclosure in the courts. Another main reason is because people do not have money to pay an attorney for legal representation. What is worse, they do not have any idea where to begin the process, even if they want to do it themselves. Since they do not know their rights, they do not have any. The public is not very well educated on how the Lending Industry works, How the Federal Reserve and the Government works. The last two generations from 1930 to 1970 and from 1970 to 2010 every 40 years have been left in the dark. They don’t have a clue of what it means to apply for a loan, to buy a home with respectable and honest financial institutions. The government lost sight of the regulations of banks due to a free market and capitalism enterprise. The minute the government started accepting money from corporate lobbyist to create laws in their favor without a vote or a public hearing; this is when the government was sold out to Corporate America. It doesn’t take a Genius to find out who is running the country. Look at last week, Obama just nominated the CEO of GE for a post in the US Government.
Look at most of the people of Obama’s’ cabinet after his inauguration. The majority are from Goldman Sachs.
The government does not implement an education system where everyone learn from early ages what it means to be an educated citizen with the basic knowledge of living a real life in America. Many High School students don’t even know how to balance a check book. They don’t know their rights in The Constitution. And what is worse, they don’t know who the Federal Reserve is and how the banking system works in this country.
We are building a society of zombies with new technologies of iPhone, iPods, apple computers, video games, and the internet where millions of Americans spend most of their lives in front of a monitor, then the rest of their evenings after an exhausted working day in front of their new Hi-Definition TV’s watching American Idol, Dancing with the Stars, Oprah, and late at night David Letterman.
The media plays a big role in this society because people spend most of their time in front of their TV. No wonder many kids are losing their eye sight in early ages and the obesity in America is more than 80%.
The solution of this whole ordeal is America needs to wake up and act by filing class action law suits against the banks for all the undisclosed material facts in their loan documents, for all the unlawful foreclosures, and for all the perjury their attorneys are committing in court. The judges need to continue what they are doing. They need to get it and get more educated in this subject of property law and never allow any pretender lender or servicer take people’s homes just for the asking.
America does something! Don’t just sit there and pretend you are fine because this is not happening to you.
If you think you own your home, I got bad news for you. If the servicer that you are sending your payment every month does not have the assignment of the note and the note was not registered and transferred to the trustee, guess what is happening to your money? Better yet, guess what will happen when you think you paid your loan and your own your home free and clear? Somebody please let me know what happened when you ask the servicer for the recoveyance deed of your title. You can response in this site under my name. I will love to reply to you after you let me know your experiences. I give you a tip. Please go to your county record where your property is located and ask the clerk for a copy of the custody of your title, or the chain of title. Please let me know what you find out. If I don’t hear from you or anybody that means everything is fine and dandy, right?
Do you want another tip? Before you go to bed tonight and have sweet dreams, please take a look at your loan documents. If you find a bar code at the bottom of your Deed of Trust and a MIN number at the top on the right hand corner, this simply means you have MERS in your loan and more likely your note was securitized.
As always, God Bless You! and God Bless America!
This decision revolves primarily around the rules of evidence:
“The trial court should not have considered this document unless it was authenticated by an affidavit or certification based on personal knowledge.”
Authentication of evidence is covered in the Federal Rules of Evidence in section 902. Check for your local corresponding rule. Your chances of winning increase dramatically if you know the rules better the mill attorneys.
The court also discussed the issue of holder, and holder in due course (HDC). An HDC takes the instruments free from claims in recoupment. A holder is subject to such claims. See UCC-3-302 and 3-305.