Cases of Relevance

Kluge v. Fugazy

145 AD2d 537

December 19, 1988

Plaintiff’s causes of action for foreclosure and deficiency judgment failed because foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity.

Downey Sav. & Loan Assn., F.A. v. Trujillo

2011 NY Slip OP 51517(U)

August 12, 2011

The Court threw out the planned foreclosure based on an alleged phone call confirmed that the paperwork was in place to take the borrower’s home away.  US Bank’s attorney said in a sworn affidavit that a Downey officer personally reviewed and could vouch for the accuracy of the paperwork underlying the foreclosure although Downey had ceased to exist.

Deutsche Bank Natl. Trust Co. v. Francis

2011 NY Slip Op 50423(U)

March 25, 2011

The borrowers originally borrowed from Fremont Investment & Loan and the note was recorded by MERS.  MERS then assigned the mortgage and note to Deutsche Bank but the alleged assignment was never recorded in ACRIS.  Therefore, the Court ruled that Deutsche Bank was not the holder of the note and mortgage on the day the foreclosure action commenced therefore Deutsche Bank lacked standing.

Countrywide Home Loans, Inc. v. Taylor

2007 NY Slip Op 27383

17 Misc 3d 595

September 20, 2007

Countrywide’s motion was denied because (1) the assignment of the mortgage were not proper and timely therefore Countrywide did not have ownership at the commencement of the action, therefore, lacking standing; (2) Countrywide did not have a proper affidavit of the facts by an officer or agent; and (3) Countrywide did not prove a statutorily specific notice to the borrower regarding information and assistance about the foreclosure process.

HSBC Bank USA, N.A. v. Taher

2011 NY Slip Op 51208(U)

July 1, 2011

The court dismissed HSBC’s case because HSBC failed to prove it owned the mortgage on the borrower’s home.  HSBC’s lawyers submitted documents from several notorious robo-signers which all claimed the original loan had been transferred to HSBC from Delta Funding Corp. which has since declared bankruptcy.

Aurora Loan Servs v. Weisblum

85 AD3d 95

December 7, 2010

The Court ruled that Aurora failed to establish standing to commence the foreclosure action.  Aurora did not have a legal or equitable interest in the mortgage because they could not prove their lawful status as assignee of the underlying at the commencement of the foreclosure action.

US Bank, N.A. v. Collymore

68 A.D.3d 752

2009 NY Slip Op 9019

890 N.Y.S.2d 578

December 1, 2009

Collymore executed a note to borrow from New Century Mortgage Corporation.  New Century assigned the mortgage to MERS and MERS subsequently assigned the mortgage to US Bank.  The Court ruled that US Bank failed to demonstrate its standing as the lawful holder or assignee of the subject note on the date it commenced the foreclosure action.

Deutsche Bank v. Ezagui

Judge Schack, Index # 3724/2007

In Deutsche Bank v Ezagui, Judge Schack denied an application for an order of reference due to the plaintiff’s failure to demonstrate ownership of the mortgage for the subject property.  Judge Schack notes that in an affidavit in support of the application a Ms. Tamara Price identifies herself as the “Vice President” of Deutsche Bank while also showing herself to be the Vice President of AMC Mortgage Services, Inc.  Judge Schack orders Deutsche Bank to provide an affidavit within thirty days explaining why Deutsche Bank seems to have purchased a non-performing loan from Ameriquest and why Deutsche Bank and Ameriquest seem to be sharing office space with Ameriquest.

Deutsche Bank v. Grant

Judge Schack , Index # 39192/2007

In Deutsche Bank v Grant, Judge Schack denied an application for an order of reference due to the plaintiff’s failure to conform to the statute in furnishing an affidavit of merit from an officer of the plaintiff.  Judge Schack notes that the affidavit of merit is dated after the purported assignment of this mortgage to Deutsche. Judge Schack also notes that the assignment of the mortgage to Deutsche Bank seems to have occurred after the mortgage is asserted to have gone into default.

Aurora Loan Services LLC v. Sattar

2007 NY Slip Op 51895 (U)

In Aurora Loan Services, LLC v Sattar, Judge Schack denied an application for an order for service by publication and dismissed the complaint by Aurora Loan Services, LLC, due to the plaintiff’s lack of standing.  Judge Schack notes that there is no evidence whatsoever within the record that the mortgage was assigned in favor of the plaintiff and notes that no such mortgage assignment was either pled or recorded.  Judge Schack also found the original complaint and suit to be frivolous, but declined to impose sanctions upon the law firm filing the suit because it was the first instance that the Court had noted such conduct.

Wells Fargo Bank N.A. v. Reyes

NY Supp 2008

In Wells Fargo v. Reyes, the plaintiff by an ex parte motion attempts to serve the defendant by publication when they cannot locate defendant.  Judge Schack denies the motion and finds that Wells Fargo does not now and has never owned the property they are trying to foreclose upon.  Since Wells Fargo does not own the mortgage they do not have standing and their complaint is dismissed.  Judge Schack further stated that the attorney’s actions could be considered frivolous and set a hearing for Wells Fargo’s attorneys to explain their actions.

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