According to the Appellate Division 2d Department, in New York, the defense of the bank’s lack of legal standing to bring the action, can not be utilized to defend against an improper foreclosure, even when the Plaintiff foreclosing bank can not prove it legally holds the note and mortgage, if a distress homeowner defendant does not raise the affirmative defense of lack of standing in a timely filed and served answer. This holding permits some “investor” banks to utilize legal process to effect a foreclosure upon homeowners by utilization of misrepresentation and fraud upon the courts, as long as the distressed homeowner is not able to file an answer.
Conversely, these “investor” banks have been able to have lower courts prevent distressed homeowners from challenging the plaintiff trust banks’ alleged standing, where it is clear the plaintiff trustee purportedly took assignment of the note and mortgage after the pooling trust had already been legally closed. Some lower courts have held that a distressed homeowner does not have standing to challenge the violation of the trust, on standing grounds. So under such reasoning the bank argues, it doesn’t concern the distressed homeowner that the plaintiff entity is a legal fiction or the assignment of the note to it is void because a closed trust can not accept such assignment. How can a defendant in foreclosure not have the right, at any point in a foreclosure action to challenge the fact that the plaintiff in the action is a legal fiction, designed to trick the distressed homeowner, the IRS, the courts and society at large. it makes no sense.
How low will our legislature and judicial branch be subjected to the muck of fraud and misrepresentation in furtherance of some political sensitivity to an apparent contract is king voting base in their communities. Perhaps it would be better to educate the tax paying citizens as to why standing up to corporate fraud benefits our society. How historically, advances in our democracy and capitalism have always been associated with checks and balances on corporate greed and manipulation and injury of the many for benefit of the very few.
The courts must continue to strive to be our bastion of equity; where the light of truth, fairness and equity casts out the shadow dockets and murky actions which don’t even pass the proverbial laugh test. Certainly contract will continue to be king in this great Country. It probably should do so. But let us not forget, what allows it to reign above all other forms of government is its Queen, Equity. Let us protect our Queen, especially when she is being assaulted by those who will run buck wild if they could get away with it.
But I am excited about a case coming from Wells Fargo Bank, N.A. v. Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct. April 29, 2013). In Erobobo, defendants argued that plaintiff (a REMIC trust) was not the owner of the note because plaintiff obtained the note and mortgage after the trust had closed in violation of the terms of the PSA governing the trust, rendering plaintiff’s acquisition of the note void. Id. at *2. The Erobobo court held that under § 7-2.4, any conveyance in contravention of the PSA is void; this meant that acceptance of the note and mortgage by the trustee after the date the trust closed rendered the transfer
void. Id. at 8.”
Based on the Erobobo decision an assignment of a Note after the start up or closing of a trust is void ab initio. Somethng that should be so simple and clear has taken the brilliance of the very Honorable Supreme Court Justice (Kings County) Wayne Saitta. When someone speaks the truth, it is hard for any to refute. “Plaintiff’s ownership of the note is not an issue of standing but an element of its cause of action which it must plead and prove.” Thank you Judge for having the fortitude to speak truth at a time when it is really needed in our democracy.
RANCHO CORDOVA (CBS13) — A Rancho Cordova couple is staying in their home after it was nearly sold out from underneath them by their bank.
Cheryl Alimena and her husband Charles say their home was full of life and celebrations.
“We planned on being here for the rest of our lives,” he said.
It was also filled with grief after their son died in a car accident just two years ago.
“This house, it has a lot of memories for us, and it meant a lot to us before, but it means a lot more now,” Cheryl said.
The family nearly lost that home, but they won it back from a pending foreclosure after suing their lender.
“It was like a bad dream,” Charles said.
They’re one of a growing group of foreclosed California owners taking their lenders to court following the foreclosure crisis.
Loans from the housing bubble were…
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