Conservative NC Court of App: Power of Sale is Not Favored Under the Law

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because a foreclosure under a power of sale is not favored in the law and must be “watched with jealousy,” see In re Foreclosure of Goforth Props., 334 N.C. at 375, 432 S.E.2d at 859 (internal quotation marks omitted), we must conclude that the evidence presented to the trial court was not sufficient to establish that the Note was payable to Deutsche Bank for Soundview, and so was not sufficient to support the trial court’s finding of fact that “Novastar Mortgage, Inc., . . . transferred and assigned its interest in the Note and Deed of Trust to Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2005-4 (`Lender’).”

Conservative NC Court of Appeals says “Show us the note!”

Today, June 07, 2010, 31 minutes ago | admin From Home Equity Theft Reporter:

Another trial court screw-up in a foreclosure action was recently reversed – this time by the North Carolina Court of Appeals, which ruled that a lender seeking to foreclose on a mortgage had failed to properly provide sufficient competent evidence that it was the holder of the promissory note secured by the mortgage. Accordingly, it ruled that the lender was not entitled to go forward with a foreclosure

sale.(1)

For the ruling, see In re Foreclosure of Adams, No. COA09-1455 (N.C.

App. June 1, 2010).

(1) An excerpt from the ruling (bold text is my emphasis, not in the original text):

[S]ince the photocopies of the Note and Deed of Trust presented to the trial court indicate that the original holder of both instruments was Novastar, not Deutsche Bank for Soundview, and since these photocopies do not indicate that Novastar negotiated, indorsed or transferred the Note to Deutsche Bank for Soundview, respondents contend the photocopied instruments alone were not sufficient to establish that Deutsche Bank for Soundview is the current holder of the Note.

We recognize that, in the present case, the testimony by affidavit from Ms. Smith, the assistant secretary of Deutsche Bank for Soundview——an out-of-state entity——as well as the in-person testimony offered by Ms. Cole indicated that Deutsche Bank for Soundview is the current holder of the Note and Deed of Trust. However, neither the in-person testimony from Ms. Cole nor the testimony by affidavit from Ms. Smith expressly showed that Novastar transferred or assigned its interest in the Note and Deed of Trust to Deutsche Bank for Soundview.

Moreover, as we discussed above, the photocopied Note and Deed of Trust, which were described in Ms. Smith’s affidavit as “exact reproductions” of the original instruments, do not show that the Note was indorsed, transferred, or otherwise made payable by Novastar, the original holder of the instrument, to Deutsche Bank for Soundview.

Thus, whereas the record in In re Foreclosure of Brown, 156 N.C. App. 477, 577 S.E.2d 398 (2003), also included an Assignment of Deed of Trust as evidence showing that the original holder of the note and deed of trust had assigned its interest in said instruments to the party seeking to foreclose on the respondent—borrowers, the record before the trial court in the present case contained no such additional evidence.

Accordingly, because a foreclosure under a power of sale is not favored in the law and must be “watched with jealousy,” see In re Foreclosure of Goforth Props., 334 N.C. at 375, 432 S.E.2d at 859 (internal quotation marks omitted), we must conclude that the evidence presented to the trial court was not sufficient to establish that the Note was payable to Deutsche Bank for Soundview, and so was not sufficient to support the trial court’s finding of fact that “Novastar Mortgage, Inc., . . . transferred and assigned its interest in the Note and Deed of Trust to Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2005-4 (`Lender’).”

11 Responses

  1. I am a North Carolina lawyer who “get’s it”.

    I represented the homeowners the In re Adams case summerized above.

    The homeowners have not made a mortgage payment in over three years and they are still in their home.

    After the Court of Appeals threw out the non judicial foreclosuer petition , the bank has now sued the homeowners with a judicial foreclosure complaint.

    We got that complaint dismissed in the trial court on our motion for summary judgment on the basis of the legal doctrines of res judicada and collateral estopple.

    The Bank will surely appeal the case to our Court of Appeals.

    Stay tuned.

    I will be happy to represent other victims of foreclosure abuse statewide in North Carolina. Call me (919) 820-1577. My websites are: BrentAdams.com and NorthCarolinaForeclosureDefense.com

    Thanks,

    Brent Adams

  2. Subscribe please.

  3. Deutsche Bank National Trust Company does not hold notes, does not have the right to enforce, foreclose or evict and does not do so in its own name.

    Loan servicers like JP Morgan are “flipping” the dirty paper to launder the titles.

    California reconveyance is a wholly owned subsidiary of JP Morgan Chase acting as trustee. Call them after the “sale” you may find out it was a credit bid that went back to JP Morgan chase NOT Deutsche Bank National Trust Company as Trustee for XYZ Trust..

    The Bankster attorneys either don’t know who their real clients are or are complicit to fraud and are committing fraud on the Court..

    http://www.youtube.com/watch?v=hYIC0eZYEtI&feature=youtu.be
    Carlin Gets It

  4. Finally got on the list. A servicer, (not on the deed of trust) tried to execute a power of sale. Thanks Neil for your wonderful posts. I’ve been reading for months.
    I showed up. Spoke to the ‘appointed’ trustee. Said, according to your appointment you have the Deed and the Note? She said, “I don’t want to talk to you.”. I told her I had a complaint for identity theft and consumer protection in a real estate transaction with the Attorney General. She gives me the law firm she’s helping (in another city) and I told her, I was disputing the sale. It was fraud. I informed her I would capture the sale with my cell phone. Eventually I was told they would not call out my home for sale. I waited through all the foreclosures. Those she called out, she stated she was authorized to bid for the “lender” (term used loosely) and she’d place the first bid, and of course had the highest bid, and would say ‘sold’. She read mine, and I started recording, I spoke while she sold, and said I never did business with this company. They are not a lender nor a creditor to me. They are not recorded in the real property records. The title is clouded. etc…so on, and eventually heard her say, sold. So I stopped talking and asked what it sold for and a person sitting by her gave a value. I said, that’s all I need and stopped recording. The cell has my voice over hers, but the point is, I was there, and have video of a fraudulent sale. I waited. No filings yet to try to transfer the title from the original trustee to the ‘substitute trustee’ (term used loosely). The acceleration (power of sale) can only be done by the ‘lender’. That definition is in the Deed of Trust. Without an ‘Assignment/Transfer’ in the Real Property Records…no one else can claim the status of the “lender’. Only the ‘lender’ can appoint a substitute trustee. The entire process was flawed. I got information from the ‘lender’ I never paid, that should prove I owed them the money (without an assignment) but their note was a certified copy from a title company, their copy of the Deed is different from a certified copy I can get from the official real estate records. I got the law firm to send their proof they have the Note and Deed as per their appointment. Their note does not match what the ‘lender’ sent, and their copy of the Deed does not match what the ‘lender’ sent nor the copy on file in Real Property records. They made it easy for me to prove to the attorney general the fraud. Problem was the AG represents that ‘state’ whereas I needed someone to represent me. Attorneys in non-judicial states do not know this part of the process so they avoid it. I found one who was new to the state, needed clients, and said if I could tell her what was wrong she’d try to help me. Well I’m on my way to either ‘reverse the sale’ (if they file something to show it was done…seems there is a delay to complete that fraudulent process), and to seek quiet title to remove all claims to this property. Sad thing is the ‘lenders’ (that term will always be used loosely) only wants the legal title to the property. They could care less about me, my payment or the house. But they can’t get it from the Trustee on my Deed of Trust because they aren’t the original Lender. The original Lender was merged away into another entity, and the Trustee would only recognize the holder of the Note and Deed. Good luck with that.

    America’s property is held by legal title by the origianl Trustees of our Deeds/Mortgages and the Bankers can’t get to these titles because they split the Deed and Note. A shame the fraud they’d go through to make sure an attorney is not the final holder of all the property titles. Makes it hard to flip homes over and over again as people buy, sell, or lose their homes doesn’t it. Can’t back out of the bad documents. They did get sloppy in their greed.
    They assign a substitute trustee, then force a sale or foreclosure, then get the original trustee to transfer the legal title to the substitute trustee so the substitute trustee can transfer it to the banker. The fraud is deep, pretending to pay taxes so they can set up an escrow and charge higher mortgage, pretending to not receive payments, canned letters no matter how you communicate in writing telling you they didn’t get your documentation even if you sent it three different times and three different ways. Then if you refinance to get from under them, the bank that refinanced is bound to assign you to them as a servicer again to go through the same pains over and over until they get that title!
    Good luck to all. I admit, stay in the language of Love, ’cause when you operate with Love in your heart, you can see through all the darkness and all the fraud and all the deception. With Love, your eyes are open and you see the slightest details in their fraud and can expose the evil side of the business. Stay in Love, that’s the language that will open the doors to victory. Forgive the players. They are working and earning a paycheck. A few at the top caused the problems. The rest of us on both sides are the pawns and expendable. Love your neighbor, they may be the very person to help you. Keep an amount of cash, (coins) in your possession for emergency situations. Lately, there has been interruptions weather related or not, where ATMs, gas stations, food services, etc.. have not been able to process credit and debit. Seems like a test for something later to come. Not fear mongering, just making an observation and giving a heads-up. Neil, keep up the good work.

  5. To Gwen:

    Cannot answer your question – but I love your story.

    Believe federal removal relates to claims (federal vs state), diversity, and damages amount. But not a lawyer.

  6. i sued novastar in 2005 over fraud in the inducement of my note with them. they and the mortgage broker claimed they were giving me a note for 6.25. when the day came to close the note was at 9.25. first i refused to pay them and they calimed they would foreclose. then they claimed they would not foreclose in a letter and then tried to foreclose and i got it stopped on the eve of the foreclosure. then it was removed to federal court where the magistrate forced a settlement which resulted in 50,000 off the note, 6.25 on the remainder of the note. I live in KCMO where Novastar has its offices–not too fa from where I live. Bigge jerks there were none and they were represented by Husch Eppenberger, a large St Louis firm, the title company also screwed up and paid and were represented by Stinson, South and Ass a foreclosure debt collector who lied about the foreclosure were represented. by Spencer Fane. There were also respa violations. no confidential settlement so i don’tmind blurbing because they were and arejerks. Imet a JP morgan guy at the airport while I was suing them who also said they were coming to kc because Novastar as lying to their bankers. Everyone laughed at me when I sued them pro se (I am a former trial lawyer) but they were not laughing when I settled with them six months later. I am now suing BOA who somehow managed to get my loan from Aegis who I refinanced with after the Novastar lawsuit because I wanted far away from Novastar. I am moving to quiet title on my house, as well as suing for violations of the terms of my mofidicatiom agreement which I completed successfully but which BOAHL refused to make permanent when they were transferred the note. I have 30 years of trial experience and I have no problem going head to head with these guys as there is not one law firm in kc who has ever beat me in the courtroom–they all settle with me sooner or later. I’m like a bad dog on your leg.

    Here’s my question though. Has anyone opposed a removal action to federal court on the ground that MERS, BOA, etc etc don’t have standing to remove??? Seems to me that that is a problem with these removal actions.

  7. Neil
    When will we see something like this in Wis.? I can’t hold off much longer, alone it is very stressful.
    Stanleyb Putra
    Racine Wis

  8. Another hallalujah from me thanks Neil

  9. Bank of America to Pay $108 Million in Countrywide Case
    By THE ASSOCIATED PRESS
    Published: June 7, 2010

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    WASHINGTON (AP) — Bank of America will pay $108 million to settle federal charges that Countrywide Financial Corporation, which it acquired nearly two years ago, collected outsized fees from about 200,000 borrowers facing foreclosure.
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    The Federal Trade Commission announced the settlement Monday and said the money would be used to reimburse borrowers.

    Bank of America purchased Countrywide in July 2008. FTC officials emphasized the actions in the case took place before the acquisition.

    The bank said it agreed to the settlement “to avoid the expense and distraction associated with litigating the case,” which also resolves litigation by bankruptcy trustees. “The settlement allows us to put all of these matters behind us,” the company said.

    Countrywide hit the borrowers who were behind on their mortgages with fees of several thousand dollars at times, the agency said. The fees were for services like property inspections and landscaping.

    Countrywide created subsidiaries to hire vendors, which marked up the price for such services, the agency said. The company “earned substantial profits by funneling default-related services through subsidiaries that it created solely to generate revenue,” the agency said in a news release.

    The agency also alleged that Countrywide made false claims to borrowers in bankruptcy about the amount owed or the size of their loans and failed to tell those borrowers about fees or other charges.

  10. Very interesting–the Notes I have been provided in my litigation do not show any indorsements, either. However, they have not been certified in any way nor have their accuracy/completeness been affirmed by affidavit. That just means that if my bankerrorists want to prove they own the Note, they’re going to have to produce the actual Note because as the record stands now, there are no indorsements on the Note which means that MERS can’t claim to have owned it. Nor can Fannie Mae.

    Neil, you rock! Thanks for keeping us all on the cutting edge of foreclosure litigation!

  11. There is a book called “The Tipping Point.” If u can get a copy, u should read it.

    If the NC Court of Appeals is the state’s highest court, then we may indeed be at a tipping point.

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