Foreclosure Offense and Defense: Lender must Own the Mortgage

Mortgage Lender Must Have Ownership Of Loan When Foreclosure Is Filed, Holds Brooklyn Judge

May 21, 2008

The case of Indymac Bank, FSB v. Ross, Supreme Court, Kings County Index No. 24713/07 (January 15, 2008) began normally enough. Indymac filed a summons and complaint on July 6, 2007. The borrower failed to appear or answer, and Indymac asked the court to grant a judgment of foreclosure on default.

What Indymac got was a denial not only of the judgment, but a denial of the entire foreclosure case.

The original lender of the subject October 4, 2006 mortgage was Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Mortgageit, Inc. MERS then assigned the loan to Indymac. But that assignment was not dated until July 11, 2007 – five full days AFTER the foreclosure was filed.

Though the assignment states that “[tjhis assignment is effective on or before June 1, 2007,” the court found such retroactive assignment to be ineffective.

The court stated as follows:

. . . such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced. See Countrywide Home Loans, Inc. v. Taylor, 17 Misc3d 595 (Sup. Ct. Suffolk Co. 2007). Plaintiffs attempt to foreclose upon a mortgage in which it had no “legal or equitable interest was without foundation in law or fact…” Katz v. East- Ville Realty Co., 249 AD2d 243 (1st Dept 1998). See US Bank Nat. Ass’n v. Merino, 16 Misc3d 209, 212 (Sup. Ct. Suffolk Co. 2007). Moreover, “foreclosure of a mortgage may not be brought by on who has no title to it….” Kluge v. Fugazy, 145 AD2d 537, 538 (2d Dept 1998). See RCR Services Inc. v. Herbil Holding Co., 229 AD2d 379 (2d Dept 1996). Finally, plaintiffs standing to bring the within action goes to the basis of a court’s authority to adjudicate a dispute. See Stark v. Goldberg, 297 AD2 203 (1st Dept 2002) (wherein the court held that sua sponte dismissal of the action was warranted despite the lack of any assertion by defendants of an objection to plaintiffs’ standing) .

So what does this all mean for you, the person going into foreclosure? It means that it’s important for you to fight back and to defend the foreclosure. Don’t think that there’s no hope for you, that an inability to pay the mortgage means you automatically lose. You have powerful rights, and need to be sure to use them.

One Response

  1. I began fighting alone for my rights as a new homeowner the evening a notary came unexpectedly to my home. I am still fighting today.
    Thank you for helping me to hopefully help my Attorney. I can’t wait until CNN, MSNBC and the local media report the fraud that is behind foreclosures across the US. The Lenders are not just Countrywide there are about 267 Subprime Lenders that are bankrupted that bundled fraudulant mortgages up like a sack of dirty clothes, the homeowners are suffering at the hands of investment banks (assignees.) I pray that people donot run away from their homes. Please Stay and Fight!!!

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