June 15, 2010

Editor’s Note….This decision is directly on point and this strategy has the potential to sway the entire foreclosure pendulum in favor of the homeowner, in order to obtain the leverage needed to force a truly viable financial solution. by http://foreclosureblues.wordpress.com

A Florida Circuit Court Judge has issued a 5-page written opinion dismissing a foreclosure filed by Aurora Loan Services, LLC finding that the Plaintiff (Aurora) lacked standing at the inception of the case and that the MERS assignment was invalid.

The court cited several Florida cases and the Bellistri v. Ocwen case from Missouri as to the necessity of standing being established and that it cannot be waived. Aurora claimed to have standing by an alleged “equitable transfer” of the note, possession of the original note, and the MERS assignment. The court stated very bluntly “These arguments are without merit”.

As to the “equitable transfer” argument, the court found that there was no indication in the assignment that the note and mortgage were physically transferred to Aurora, and could not have been in view of the second count of the Complaint to “enforce a lost note”. The “physical possession” argument was vitiated by the fact that the exhibits attached to the Complaint, including the Note and Mortgage, were executed in favor of an entity other than Aurora (which we all know is nothing more than a servicer which was the servicer for the now-bankrupt Lehman Brothers), and that when there is a conflict between what the Complaint alleges and what the exhibits show, the exhibits control. The court also found that none of the documents attached to the Complaint identified Aurora as the “holder”.

The Court went on to show why the MERS assignment was a legal nullity, citing the LaSalle Bank v. Lamy case from New York, the MERS v. Nebraska Department of Finance case, the Arkansas and Kansas Supreme Court cases on the lack of authority of MERS, the Saxon v. Hillery case from California, and the In Re Vargas case from the California Bankruptcy Court to demonstrate that MERS’ capacity is limited and that MERS had no authority to execute the assignment. The Court held the assignment to be invalid.

The Court finally noted that the lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed, citing a Florida appeals case from the same appellate court which issued the BAC Funding case on standing (which we previously discussed on this website).

The Court dismissed the foreclosure and reserved jurisdiction to address the borrower’s request for attorneys’ fees.

The importance of this April 28, 2010 opinion is severalfold: first, it shows that trial court Judges are willing to accept the law on MERS from other jurisdictions. Second, it shows that trial court Judges are going to hold foreclosing parties to their legal obligations of proving standing by competent evidence. Third, it shows that courts will dismiss legally infirm foreclosure cases and entertain borrower requests for attorneys’ fees in having to defend a legally infirm foreclosure.

Thanks to one of our devoted readers for providing us with this opinion today.

Jeff Barnes, Esq., http://www.ForeclosureDefenseNationwide.com

11 Responses

  1. Kyle, I appreciate your respone. The frustrating part is that I agree with you. I understand the defense and according to the Judge, so did he. But because there is no case law in NJ to allow him to rule this way, he couldn’t, or that’s how I understand it? The Judge appeared to be encouraging an appeal. It seemed as though he felt there was merit to the defense even though he ruled against it? We are appealing. It looks like we will become the landmark case in NJ. Thanks for your support.

  2. I believe WE NEED TO ADD TO ADD THESE TYPE OF OPINIONS, as EXHIBITS to the back of our complaints, answers, and pleadings.

    Let the Arizona and other state’s judges read this Opinion, and give them the knowledge and the courage to replicate over and over.

    Can you post a direct .pdf?

    Neil & co., thanks for your blog!

  3. Quote:

    Deborah Ann Dugger, on June 27, 2010 at 8:11 pm Said:

    “I want to know–> why is it every time I ask a question why no one answers? It is not like I am asking for the world? There is no stupid questions except for the ones not asked- so why is it so hard to get an answer here?”

    This is not the kind of blog where you ask questions and then admin or someone with expertise then answers them. Even though we are all similarly situated, there are so many variables that make it difficult (if not impossible) for anyone to answer the questions. First of all, we are all in different states so the laws that apply in one state would not apply in another. Local court rules also differ from county to county. Even our servicers, creditors, loan products, etc. are not always the same.

    I don’t think Neil Garfield can give legal advice to any of us here. He is not our attorney (even though we all wish he was) and he is not personally familiar with our cases. He does however, give us useful information and points us all in the right direction. No other site gives us what his site does.

    I totally understand your frustration though. I have so many questions myself and no matter how much I dig, I don’t have the answer to some of them. I also don’t have the money to hire a knowledgeable and experienced foreclosure defense attorney. I could only afford a bankruptcy mill and that attorney definitely does not “get it.” LOL The most we can do is to keep on digging. Oh, and I pray a lot too. I pray I get assigned a judge that is fair and will apply the law.

    So please don’t take it personal if your questions are not answered here.

  4. Dear Now What?

    You can have two people who have the same charge and how the two charges are argued is why one will win and the other may not get the results they wanted.

    Thank God for Appeals!

    MERS assignments have no merits. It is NOT about what they have but how it is presented about what they LACK.

    They have passed on an Assignment without authority to do so!!! They hold NO authority to transfer a NOTE with a mortgage, deed of trust or security deed (GA) which is the Debt. What they LACK is that the Promise to Pay NOTE gives them no authority to transfer the NOTE!! No rightful possession of the NOTE held by the foreclosing party NO Foreclosure standing.

    WHY??? They foreclosing party is not in possession as a holder in due course.

    Effective argument is KEY to LIFE

    Don’t give up… The battle is Not lost… We are ALL pulling for YOU

  5. This is great! Thanks Neil!

  6. I want to know–> why is it every time I ask a question why no one answers? It is not like I am asking for the world? There is no stupid questions except for the ones not asked- so why is it so hard to get an answer here?


  7. Moving in the right direction everyone keep on keeping on like ripples on the ocean till a big wave comes my case I believe is going to be saved got new council

  8. A NJ Judge just denied our motion to dismiss and granted their motion for summary judgment? and they had nothing! Mers assignment of mortgage only signed by an employee of BAC to BAC? the judge ignored all of it? Now what do I do?

  9. Does anybody know the story about “SELLING THE BROOKLYN BRIDGE”?



    “Be Strong and Courageous”

    (Deut. 31:6)


  10. Help,

    Here is a link to the full order…

    AURORA LOAN SERVICES, LLC, v. JUDITH MENDES DA COSTA; Motion to Dismiss Granted – Judge’s Order SLAMS MERS

    Posted by Foreclosure Fraud on June 16, 2010


  11. will someone please post the opinion or link to the opinion. thanks

Contribute to the discussion!

%d bloggers like this: