Tag: holder

Texas Ropes One In: Motion to Dismiss Denied

Texas Ropes One In: Motion to Dismiss Denied

By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net

From April Charney:

…”If the holder of the deed of trust does not own or hold the note, the deed of trust serves no purpose, is impotent, and cannot be a vehicle for depriving the grantor of the deed of trust of ownership of the property described in the deed of trust….[finding that]…inherent in the procedural steps outlined in the Texas Property Code is the assumption that whatever entity qualifies as a “mortgagee” either owns the note or is serving as an agent for the owner or holder of the note; and, the statute assumes that when a foreclosure is conducted by someone other than the owner or holder of the note, the person conducting the foreclosure will be acting as agent or nominee for the owner or holder…Otherwise, the Texas statutory law would make no sense, and would be directly at odds with long-standing, basic principles governing the relationship between real estate borrowers, on the one hand, and their corresponding secured real estate lenders, on the other.” (edited from the below decision):
JANE McCARTHY, Plaintiff, vs. BANK OF AMERICA, NA, BAC HOME LOANS SERVICING, LP, and FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendants. NO. 4:11-CV-356-A December 22, 2011
 

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Southern District of California Bankruptcy No. 09-19263-PB13 (RS No. CNR-2), the Honorable Laura S. Taylor presiding (Not for Publication).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?”

The Wrong Remedy at the Wrong Time, Part 2

The Wrong Remedy at the Wrong Time, Part 2

By Daniel Edstrom
DTC Systems, Inc.

New Note added on 1/22/2012 thanks to Simonee.  California Probate Code does not seem to apply based on this California Supreme Court decision: Monterey S.P. Partnership v. W. L. Bangham, Inc. (1989) 49 Cal.3d 454 , 261 Cal.Rptr. 587; 777 P.2d 623 (download here: http://dtc-systems.net/wp-content/uploads/2012/01/Monterey_SP_Partnership_vs_WL_Bangham.pdf)

This is a continuation from The Wrong Remedy at the Wrong Time, Part 1 (http://dtc-systems.net/2011/01/wrong-remedy-wrong-time-part-1/).

It turns out that if you want to modify the Trust created by your Deed of Trust, or if you want to determine if the trust exists, you need to petition the court under California Probate Code 17200.  If you are not in California, but are in a Deed of Trust state, your state probably has similar probate laws.

In order to petition the court, California Probate Code 17200 has the following provision:

“(a) Except as provided in Section 15800, a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust.”

Right off the bat we find that only a trustee or a beneficiary has the ability to petition the court under 17200.  If no trustee is specified, the default trustee is the trustor (the parties that executed the note – i.e. the homeowners).  The beneficiaries can easily substitute in a new trustee if that occurs.  But what if Mortgage Electronic Registration Systems (MERS) is named as the beneficiary?  Consider California Mortgage and Deed of Trust Practice § 1.39 (3d ed Cal CEB 2008) § 1.39 (1) the Beneficiary Must Be Obligee:  The beneficiary must be an obligee of the secured obligation (usually the payee of a note), because otherwise the deed of trust in its favor is meaningless. Watkins v Bryant (1891) 91 C 492, 27 P 775; Nagle v Macy (1858) 9 C 426. See §§ 1.8-1.19 on the need for an obligation. The deed of trust is merely an incident of the obligation and has no existence apart from it. Goodfellow v Goodfellow (1933) 219 C 548, 27 P2d 898; Adler v Sargent (1895) 109 C 42, 41 P 799; Turner v Gosden (1932) 121 CA 20, 8 P2d 505. The holder of the note, however, can enforce the deed of trust whether or not named as beneficiary or mortgagee. CC § 2936; see § 1.23.

Continue reading “The Wrong Remedy at the Wrong Time, Part 2”