A New York Judge was persuaded to reverse her decision once it was revealed that the investor/lender in this action had participated in the MERS scheme.
Foreclosure activity shows no signs of slowing down. According to RealtyTrac® – August of 2012 saw a marked increase in foreclosure activity in judicial foreclosure states.
New York was 3rd on the list with a 56% increase in year over year activity. In New York banks that had put their foreclosure activities on hold after being blasted by the robo-signing scandal have begun to re-group, and replace Stephen J. Baum as legal counsel.
The way a New York woman almost lost her home because of the banks less than adequate loss mitigation efforts is all too common. What is becoming more and more common is the way the Judge in the case issued a ruling overturning the judgment of foreclosure and sale because the plaintiff lacked standing to foreclose.
In this case Judge Judith J. Grische held that “retroactive assignments of mortgage are invalid” and cited Wells Fargo Bank, N.A. v Marchione and Deutsche Bank Natl. Trust Co. v Abbate to vacte the Defendants default and Dismiss the case.
In this case the bank was offered an opportunity to settle by agreeing to grant the Defendant a modified payment that was affordable but decided to push to take her home away instead.
With the help of her attorney Brian McCaffrey the borrower was able to obtain a decision in court to overturn the judgment of foreclosure and dismiss the case. The borrower is now poised to bring an action to quiet title or negotiate a settlement with the lander.
Excerpt from the decision:
“The assignment by MERS to ACT of the mortgage only renders this action a nullity as MERS did not have, nor could it convey the note and it is the note that coveys title to the mortgage. Absent an assignment or physical possession of the note, ACT did not have the power to foreclose on Ullah’s loan…. Not only is her default vacated, her motion for summary judgment dismissing the complaint is granted and the COMPLAINT IS HEREBY DISMISSED ”
This is not an isolated case, many lenders continue to foreclose while their documentary evidence is deficient. Whether this is the fault of their own counsel or just plain arrogance on their part is not clear.
What is clear is that the process of securitizing mortgages and participation in the MERS scheme in a sizable number of cases has created a cloud on title that if argued properly can stall and dismiss foreclosure actions.
Many lenders hire “foreclosure mills” that file sloppy documents with false or unverified claims. They get away with this practice because most foreclosures go uncontested, or the borrower hires counsel that does not spend the time to uncover these practices.
If you are behind on payments, if your bank threatens to foreclose, sends you a notice of default or you are served with foreclosure papers find an attorney immediately. That faster you act the better your chances are of getting a successful resolution.
If you are in the midst of foreclosure get educated and find a tough no nonsense attorney who will fight for your rights tooth and nail.