Georgia Rules Secured Creditor Must Be In Chain of Title Prior To Foreclosure Sale

Georgia Rules Secured Creditor Must Be In Chain of Title Prior To Foreclosure Sale

By Daniel Edstrom
DTC Systems, Inc.

Information from Nye Lavalle and (   Read the entire 14 page ruling for everything, or the following notable excerpts.

Excerpt 1

In a letter dated July 20, 2010, McCurdy & Candler, L.L.C., informed Plaintiff that the property was scheduled for public foreclosure sale on September 7, 2010, before the courthouse door in Fulton County, Georgia. (Id. at Ex. B.) The letter identified BAC Home Loans Servicing as the creditor and stated that the entity with the full authority to discuss, negotiate, or change all terms of the mortgage was Bank of America. (Id.) The foreclosure occurred, and Fannie Mae is now representing to Plaintiff that it owns his home pursuant to the foreclosure sale and demanding that he vacate the property. (Id. ¶ 8.)

In his amended complaint Plaintiff specifically asserts that Fannie Mae owned his loan at the time of the foreclosure and BAC was merely the servicer. (Id. at ¶ 11.) He attaches to the complaint letters from Bank of America and its counsel, dated June 28 and October 13, 2010, which state that Fannie Mae (or in the second letter “FNMA AA MST/SUB CW Bank REO”) is the owner of his mortgage loan and Bank of America/BAC is the servicer. (Id. at Exs. D and E.) These letters identifying Fannie Mae as the secured creditor considered alongside the foreclosure notice letter identifying BAC as the secured creditor created confusion about the identity of the holder of the loan. Plaintiff alleges that no assignment to Fannie Mae was recorded in the county deed records prior to the foreclosure sale. (Id. at 12.) Continue reading “Georgia Rules Secured Creditor Must Be In Chain of Title Prior To Foreclosure Sale”

What did the Attorneys for OneWest Learn at Trial?

What did the Attorneys for OneWest Learn at Trial?

By Daniel Edstrom
DTC Systems, Inc.

From the United States Bankruptcy Court Southern District of California Bankruptcy No. 09-19263-PB13 (RS No. CNR-2), the Honorable Laura S. Taylor presiding (Not for Publication).  OneWest submitted a motion for relief from stay as a secured creditor.  This means they are the one with money at risk and there is security for the collateral (a Deed of Trust securing the debtors home).  Attorneys had submitted this information and much more on behalf of OneWest.  OneWest used a Brian Burnett to provide a declaration stating under penalty of perjury that OneWest was the real party in interest in connection with the Stay Motion.  Mr. Burnett also stated under penalty of perjury that: (a) OneWest received an interest in the Trust Deed pursuant to an assignment attached to the OneWest Declaration; and (b) that OneWest is “holder and in actual physical possession of the original Promissory Note dated July 14, 2007 …”.  A copy of the note (unendorsed) was attached to the declaration.  This note was identical to the note attached to the Claim (Proof of Claim).

At trial, Charles Boyle, an Assistant Vice President in the Default Risk Management Group, Litigation Department of OneWest, testified, among other things, that the beneficiary of the Loan is Freddie Mac.  This testimony was not consistent with the OneWest Declaration (by Mr. Burnett).  The court required more information after the trial in order to decide the outcome.

OneWest’s post-trial documents contained factual assertions inconsistent with the OneWest Declaration and claim.  OneWest now provided a new copy of the note with an allonge dated July 24, 2007 evidencing a transfer from Original Lender to “IndyMc Bank, FSB” and bore an endorsement in blank from IndyMac Bank FSB. Continue reading “What did the Attorneys for OneWest Learn at Trial?”

MERS has no agency – New York Bankruptcy Court: in re Agard

The following is a New York Bankruptcy motion for relief from stay ruling from February 10th, 2011




In re:

Case No. 810-77338-reg


Chapter 7




Before the Court is a motion (the “Motion”) seeking relief from the automatic stay

pursuant to 11 U.S.C. § 362(d)(1) and (2), to foreclose on a secured interest in the Debtor’s real

property located in Westbury, New York (the “Property”). The movant is Select Portfolio

Servicing, Inc. (“Select Portfolio” or “Movant”), as servicer for U.S. Bank National Association,

as Trustee for First Franklin Mortgage Loan Trust 2006-FF12, Mortgage Pass-Through

Certificates, Series 2006-FF12 (“U.S. Bank”). The Debtor filed limited opposition to the Motion

contesting the Movant’s standing to seek relief from stay. The Debtor argues that the only

interest U.S. Bank holds in the underlying mortgage was received by way of an assignment from

the Mortgage Electronic Registration System a/k/a MERS, as a “nominee” for the original

lender. The Debtor’s argument raises a fundamental question as to whether MERS had the legal

authority to assign a valid and enforceable interest in the subject mortgage. Because U.S. Bank’s

rights can be no greater than the rights as transferred by its assignor – MERS – the Debtor argues

that the Movant, acting on behalf of U.S. Bank, has failed to establish that it holds an

enforceable right against the Property.1 The Movant’s initial response to the Debtor’s opposition was that

MERS’s authority to assign the mortgage to U.S. Bank is derived from the mortgage itself which

allegedly grants to MERS its status as both “nominee” of the mortgagee and “mortgagee of

record.” The Movant later supplemented its papers taking the position that U.S. Bank is a

creditor with standing to seek relief from stay by virtue of a judgment of foreclosure and sale

entered in its favor by the state court prior to the filing of the bankruptcy. The Movant argues

that the judgment of foreclosure is a final adjudication as to U.S. Bank’s status as a secured

creditor and therefore the Rooker-Feldman doctrine prohibits this Court from looking behind the

judgment and questioning whether U.S. Bank has proper standing before this Court by virtue of a

valid assignment of the mortgage from MERS.
Continue reading “MERS has no agency – New York Bankruptcy Court: in re Agard”