CASE DECISIONS

  1. florida-appellate-courts-are-getting-it-and-so-is-everyone-else

  2. strategic-implications-of-the-landmark-kesler-kansas-supreme-court-decision

  3. pursuit-v-ubs-investor-case-proves-homeowners-cases

  4. arkansas-supreme-court-denies-mers-legal-standing

  5. mass-court-affirms-notice-requirements-holder-in-due-course-and-raises-new-issues-on-auction-bids

  6. federal-appeal-slams-lawyers-and-pretender-lenders-with-sanctions-for-misrepresentation-on-ownership-of-loan

  7. nevada-bkr-judge-knocks-mers-on-standing-on-lift-stay-motion

  8. Nevada Law Practical RP Issues
  9. IndyMAc Bank FSB. v Yano-Horosky
  10. Whitley order on mtd Taylor Bean
  11. Sheridan_decision Idaho BKR J Myers
  12. US Bank v Ibanez Memo of Decision Denying US Bank Mts Oct 14 2009Misc 384283 and Misc 386755
  13. porter
  14. judge-youngs-decision-on-nosek
  15. MERS Analysis post Kansas
  16. Lender’s Cases

50 Responses

  1. Lynn Tomaro, on September 22, 2016 at 12:13 pm said:

    Okay I need a Lawyer in NJ or PA that has their NJ license to help me with my foreclosure, very unusual case… Not interested in doing a loan modification so if that is where you are coming please don’t waste my time… Help, get a hold of me as soon as possible, please…

  6. Jellybeans, on August 8, 2013 at 6:23 pm said:

    NINTH CIRCUIT SAYS BORROWERS CAN SUE WELLS FARGO OVER MORTGAGE MODIFICATIONS—CORVELLO CASE

    http://www.scribd.com/doc/159049512/NINTH-CIRCUIT-SAYS-BORROWERS-CAN-SUE-WELLS-FARGO-OVER-MORTGAGE-MODIFICATIONS-Corvello-v-Wells-Fargo-Ninth-Circuit-Court-of-Appeal

  7. Jellybeans, on August 8, 2013 at 6:14 pm said:

    HERE IS THE DECISION IN GLASKI V BOA NOW CERTIFIED FOR PUBLICATION –APPEAL COURT IN CALIFORNIA

    http://www.scribd.com/doc/159048121/Glaski-v-BOA-Published-Version-California-Court-of-Appeals-Decision-Cert-for-Pub-August-8-201

  10. Jellybeans, on June 8, 2013 at 9:36 am said:

    June 6 2013–appeal decision-win for homeowner-BOA note and deed separated–BOA no authority to negotiate a loan mod at mediation

    http://www.scribd.com/doc/146524132/Bergenfield-v-BOA-in-Nevada-June-2013-Appeal-Decision-reversed-and-remanded-note-and-deed-seperated-BOA-lacked-authority-to-do-loan-mod-at-mediation

  11. Abby in CA, on May 9, 2013 at 12:02 pm said:

    VICTORY!! CALIFORNIA HOMEOWNER STOPS A FORECLOSURE USING THE NEW CALIFORNIA HOMEOWNER BILL OF RIGHTS. HIS ATTORNEY CAN COLLECT HIS ATTORNEY FEES FROM THE BANK. BECAUSE SINGH WON THE INJUNCTION–HIS ATTORNEY WILL GET PAID BY THE BANK!! FIND THOSE ATTORNEYS TO HELP YOU IN CALIFORNIA.

    http://www.scribd.com/doc/140451108/VICTORY-CALFORNIA-MAN-STOPS-A-FORECLOSURE-USING-THE-NEW-CALIFORNIA-HOMEOWNER-BILL-OF-RIGHTS-HOBR-5-9-2013

  13. goi, on May 18, 2012 at 12:39 pm said:

    Andy: Attorney Jason Estavillo: 510-982-3001. Auditor: Lawrence Asuncion: 650-355-8873. Both are honest, experienced and credible. tell em ‘Kris in Kali’ sent ya…
    good luck….

  14. andy johnston, on May 16, 2012 at 2:38 pm said:

    I,m looking for some help I,m going through a foreclosure and I dont now where to turn I live in fresno and I whont to fight for my home if you could help me with a phone number that would be great thanks andy

  15. goi, on April 19, 2012 at 3:25 pm said:

    I won my house FREE & CLEAR. Here is HOW I DID IT…!!!
    http://www.scribd.com/doc/90184879/I-Won-my-House-FREE-CLEAR-Here-s-HOW

    Don’t GO IT ALONE…!!!!

  17. ABBY IN CA, on March 31, 2012 at 11:34 am said:

    HAWAII JUDGE SEABRIGHT GETS IT!! BIG WIN FOR HOMEOWNER WILLIAMS. DEUTSCHE HAD NO STANDING. LOAN ORIGINATOR NEW CENTURY IN BKR SO RED FLAG GOES UP ABOUT THE FRAUDULENT ASSIGNMENT!!

    THIS POST HAS DISCUSSION, AND THE COMPLAINT AND OTHER RELEVANT CASE DOCUMENTS.

    http://www.scribd.com/doc/87479128/GOT-NEW-CENTURY-WIN-FOR-HOMEOWNER-READ-JUDGE-SEABRIGHT-S-DECISION-HERE-AND-COMPLAINT-ETC-no-evidence-that-plaintiff-was-validly-assigned-the-Mort

  20. ABBY IN CA, on March 9, 2012 at 12:44 pm said:

    AMICUS BRIEF FROM NCLC IN SUPPORT OF APPELLANT MCOMIE-GRAY IN NINTH CIRCUIT APPEAL CASE RE: TILA AND 3 YEAR

    http://www.scribd.com/doc/84723587/NCLC-Amicus-Brief-in-Support-of-McOmie-Gray-TILA

  21. ABBY IN CA, on March 9, 2012 at 11:28 am said:

    THANK GOODNESS THE ATTORNEYS FILED A PETITION FOR PANEL REHEARING IN THE MCOMIE-GRAY TILA APPEAL DECISION IN THE NINTH CIRCUIT!!

    http://www.scribd.com/doc/84712205/McOmie-Gray-Opinion-2-8-2012-TILA-and-Petition-for-Rehearing-Ninth-Circuit

  22. FredFlinstone, on February 29, 2012 at 3:37 pm said:

    Decision in New Century TRS Holdings, Inc. Holds That Publication in 2 Newspapers is Insufficient to Grant a Motion for Summary Judgment

    Summary

    In a 14 page opinion published June 7, 2011, Judge Carey ruled that publication of notice in only two newspapers was insufficient information to grant a motion to dismiss based on adequacy of notice. Judge Carey’s opinion is available here (the “Opinion”).

    Background

    New Century TRS Holdings, Inc. (the “Debtor”), filed voluntary petitions for bankruptcy on April 2, 2007 and the claims Bar Date was established as August 31, 2007. On July 23, 2007, the claims agent published a notice of the Bar Date in The Wall Street Journal and The Orange County Register. Opinion at *3. On November 22, 2008, the plaintiffs in the adversary proceeding that gave rise to this opinion (the “Whites”) filed a claim. The Trustee for the Debtor objected to the claim on August 13, 2010, and the Whites filed this adversary complaint on November 10, 2010, requesting the Court cancel their mortgage note. After the Court consolidated the adversary proceeding and the claim, the Trustee filed a Motion to Dismiss (1) for lack of subject matter jurisdiction and (2) for asserting claims after the bar date.

    Judge Carey’s Opinion

    Judge Carey began his discussion of the Motion to Dismiss by examining the subject matter jurisdiction of the Bankruptcy Court. Ultimately determining that because the Debtors “did not, at the time of the bankruptcy filing, and do not now, have any interest in the Note or Mortgage,” the Courts lacks subject matter jurisdiction to order rescission or cancellation of the Mortgage. Opinion at *7. Judge Carey then granted this portion of the Motion to Dismiss.

    Judge Carey then turned to the Motion to Dismiss as far as it pertained to the late-filed claims. The Whites argued that they did not receive adequate notice of the bar date, and therefore, their claims should not be barred. The Trustee argued that as the Whites were unknown claimants, publication of the bar date in the two newspapers was sufficient to satisfy the requirements of due process. Opinion at *12-13. Judge Carey cites extensively to Chemetron Corp. v. Jones, 72 F.3d 341 (3d Cir. 1995), in discussing the adequacy of service.

    In Chemetron, the debtors published notice in The New York Times, The Wall Street Journal and seven local newspapers, satisfying the Third Circuit that the debtors had met their due process burden. In the instant case, Judge Carey held that the Trustee has not proved that publication in one national newspaper and one local newspaper is sufficient to meet due process requirements. Opinion at *14. He then denied the remainder of the Motion to Dismiss.

    A Motion to Dismiss is an extreme remedy, and while courts are willing to grant them, they do so infrequently and only when there is a very strong argument in support of the motion. If there is any doubt, as there was in this case, the court will err on the side of caution and deny the motion, particularly when there are numerous unknown facts

    John Bird practices with the law firm Fox Rothschild LLP in Wilmington, Delaware. You can reach John at 302-622-4263, or jbird@foxrothschild.com.
    Tags: Bar Date, Delaware Bankruptcy Court, New Century TRS Holdings, Notice, Opinions, Publication, The Honorable Kevin J. Carey

  23. Deb in Crested Butte, CO, on October 21, 2011 at 12:21 pm said:

    Thank you so much Steve & Sara for your post 10-7-11 on Colorado case! I am in Colo. & have been fighting the bank for over a year. This case helps me!!

  24. Kim Thomas, on August 16, 2011 at 12:16 pm said:

    GEORGE BABCOCK HITS HOMERUN ON MERS CASES IN RHODE ISLAND.Serviing RI-MA-CT OVER 700 FAMILIES STILL IN THEIR HOMES.CALL US AT 401-724-1904.

    Case 1:1 0-cv-00024-M -LOA Document 27 Filed 08/16/11 Page 1 of 2 PageiD #: 121
    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    . In re: Mortgage Foreclosure Cases
    )
    )
    )
    )
    ORDER
    Misc. No. 11-mc-88-M-LDA
    I. At the request of the Chief Judge, all mortgage foreclosure cases currently venued
    in the United States District Court for the District of Rhode Island are assigned to Judge John J.
    McConnell, Jr. and to Magistrate Judge Lincoln D. Almond and all mortgage foreclosure cases
    filed here in the future will be assigned to Judge John J. McConnell, Jr. and to Magistrate Judge
    Lincoln D. Almond.
    2. A list of pending mortgage foreclosure cases currently subject to this Order is
    attached hereto as Exhibit A.
    3. All mortgage foreclosure cases (currently filed and to be filed in the future) are
    subject to this Order.
    4. All mortgage foreclosure cases are hereby STAYED and shall remain so until
    further order of the Court. Any deadlines for filings on any issue are hereby suspended. Counsel
    are permitted to file Notices of Appearance.
    5. The Court will establish a Master Docket (11-mc-88-M-LDA) captioned In re:
    Mortgage Foreclosure Cases strictly for the purpose of case management by the Court. Counsel
    shall continue filing all papers in their individual cases only; counsel shall not file anything in the
    Master Docket unless instructed to by the Court.
    Case 1 : 1 0-cv-00024-M -LOA Document 27 Filed 08/16/11 Page 2 of 2 Page I D #: 122
    6. For efficient communication with the Court and administration of these cases,
    counsel shall meet and confer and select liaison counsel (see Manual for Complex Litigation
    (Fourth) § 10.22 (2004)), two for all plaintiffs and two for all defendants. The parties shall notify
    the Court on or before September 2, 2011 oftheir selections.
    7. The Court will require all parties in all mortgage foreclosure cases to engage in
    directed and serious settlement discussions prior to the lifting of the stay in any individual case.
    8. The Court is considering the appointment of a Master pursuant to Fed. R. Civ. P.
    53 in order to assist with pre-trial matters and facilitate settlement in the individual cases. Any
    party wishing to be heard on this matter, including on the suggestion of candidates for
    appointment as Master, shall file such comments on or before September 2, 2011.
    9. The Court will hear argument on the standing issue in Plaintiffs’ Objections to the
    Reports and Recommendations in Fryzel v. Mortgage Electronic Registration Systems, Inc., et
    al. (C.A. No. 10-352-M) and Cosajay v. Mortgage Electronic Registration Systems, Inc., et al.
    (C.A. No. 10-442-M) on September 13, 2011 at 10:00 a.m. in Courtroom 3. Any party subject
    to this Order that is not a party to the aforementioned two individual cases wishing to file an
    amicus brief on the standing issue shall do so by September 2, 2011. Only counsel in the
    aforementioned two individual cases will be allowed to present oral argument.
    John J. McConnell, Jr.
    United States District Judge
    August 16, 2011
    2
    Case 1 :10-cv-00024-M -LOA Document 27-1 Filed 08/16/11 Page 1 of 2 PageiD #: 123
    EXHIBIT “A”
    MORTGAGE FORECLOSURE CASES
    1. 10-024 Tracy v. Deutche Bank
    2. 10-068 Medeiros v. Option One
    3. 10-160 McLaughlin v. American Home
    4. 10-215 Rezendez v. Option One
    5. 10-268 Pool v. MERS
    6. 10-352 Fryzel v. MERS
    7. 10-442 Cosajay v. MERS
    8. 10-481 Aceto v. American Brokers
    9. 11-004 Moll v. MERS
    10. 11-007 Cerbo v. Argent Mtg.
    11. 11-022 Tavares v. MERS
    12. 11-028 Archibald v. MERS
    13. 11-046 Aceto v. MERS
    14. 11-097 DelDeo v. Option One
    15. 11-123 Boudreau v. Option One
    16. 11-124 Rodriguez v. MERS
    17. 11-170 Schofield v. US Bank
    18. 11-189 Lehoullier v. E. Loan
    19. 11-219 Wu v. Wells Fargo
    20. 11-232 Curl v. Ameriquest Mortgage
    21. 11-237 DiGiorgio v. MERS
    22. 11-241 Neves v. Ameriquest
    23. 11-256 Tavares v. MERS
    24. 11-257 Grena v. MERS
    25. 11-262 Collupy v. MERS
    26. 11-272 Kaskel v. MERS
    27. 11-278 DiNezza v. MERS
    28. 11-283 Hillier v. MERS
    29. 11-284 Rivera v. Option One
    30. 11-285 Fasulo v. MERS
    31. 11-286 Pries v. MERS
    32. 11-288 Averv. MERS
    33. 11-289 Barboza v. MERS
    34. 11-290 MacKay v. MERS
    35. 11-291 Dolan v. MERS
    36. 11-295 Azevedo v. America’s Wholesale Lenders
    37. 11-296 Menta v. MERS
    Case 1:1 0-cv-00024-M -LOA Document 27-1 Filed 08/16/11 Page 2 of 2 PageiD #: 124
    38. 11-300 Pagliaro v. MERS
    39. 11-305 Sullivan v. MERS
    40. 11-306 Forrest v. Wells Fargo
    41. 11-307 Dumouchelle v. Equity Concepts
    42. 11-309 Robles v. MERS
    43. 11-311 Williams v. MERS
    44. 11-312 Boisseau v. National City Bank
    45. 11-316 Jacques v. New Century Mortgage
    46. 11-317 Kinder v. MERS
    47. 11-318 Vargas v. MERS
    48. 11-319 Currier v. MERS
    49. 11-320 Nowling v. MERS
    50. 11-321 Lanning v. MERS
    51. 11-324 Gallagher v. MERS
    52. 11-330 In v. MERS
    53. 11-332 Picard v. MERS
    54. 11-333 Ciccone v. Aurora Loan Services
    55. 11-334 D Knight Real Estate v. MERS
    56. 11-338 Berrillo v. MERS
    57. 11-346 Lopez v. MERS
    58. 11-347 Benjamin v. MERS
    59. 11-353 Santana v. HSBC Bank
    60. 11-358 Guerra v. MERS
    61. 11-363 Mandarelli v. MERS
    62. 11-366 Femminella v. W AMU
    63. 11-369 Newberry v. MERS
    2

  25. Fighting MERS in Ca, on August 1, 2011 at 9:14 am said:

    I think that everyone is missing the #1 problem MERS has in CA.
    MERS is a Non-Authorized Agent and cannot legally assign the Promissory Note, making any foreclosure by other than the original lender wrongful, for the following reasons.

    1) Under established and binding Ca law, a Nominee can’t assign the Note. Born V. Koop 1962 200 C. A. 2d 519[200 CalApp2d Page 527, 528
    2) On most Notes, the term Nominee is not included and MERS never takes ownership, making it unenforceable and unassignable by MERS.
    Ott v. Home Savings & Loan Association, 265 F. 2d 643 [647,648
    3) Ca Civil Code §2924, et seq. is exhaustive and a Nominee is never included as an acceptable form of “authorized agent” in a judicial or non-judicial foreclosure.

    Finally, GOMES V. COUNTRYYWIDE HOME LOANS, INC., 192 Cal.App.4th 1149, IS FLAWED!
    a) The Gomes case simply failed to address and apply the established and binding definition of a nominee.
    b) The first thing the Deed of Trust does is (i) take away MERS right to payments and (ii) take away the right to enforce the Note.
    c) REGARDLESS WHAT A BORROWER AGREES TO, a borrower cannot legally grant MERS the right to assign the note or any of the rights of the note owner.
    Source: https://sites.google.com/site/mersfatalflawsincalifornia

  26. Kim Thomas, on February 14, 2011 at 6:51 pm said:

    DO NOT GIVE UP! THE POWER OF ONE!! CALL YOUR SENATORS-CONGRESSMAN-ATTORNEY GENERALS.DO NOT LOSE THE MOMENTUM!! MA-RI-CT HOMEOWNERS! FIND OUT ABOUT GEORGE BABCOCK RECLAIMING AMERICA ONE YARD AT A TIME. MA.& RI & CT.IF YOUR HOME HAS BEEN FORECLOSED ON CALL US WE WILL MAKE IT RIGHT FOR YOU. WE CAN HELP YOU RIGHT AWAY! NO FAMILY LEFT BEHIND! BUDGET PLANS FOR EVERYONE.WE CAN HELP YOU STAY IN YOUR HOME. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK ………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
    IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C. CALL KIM THOMAS OR GEORGE BABCOCK AT 401-724-1904 AND GET RELIEF FROM YOUR PROBLEM!

  27. Peter, on January 14, 2011 at 2:53 pm said:

    Celia, do you know what court this was in or what city or what the judge’s name is? That’s BS. The banks are raping Californians with the help of the judges and politicians.

  28. Celia Salazar, on January 13, 2011 at 4:26 pm said:

    I have been following the events of my friends battle with her lender. She responded to an UD action. Judge set a hearing date but instead of notifying her in writing, the clerk called her to tell her when the hearing is. The clerk alledgedly said 20th of Dec , my friend heard 28th. She noted down the date and forgot that she needed to receive a written notice. On the 23rd she called the court to confirm the date and time and was told that she was a no show and the judged dismissed the case in favor of the lender. To date she has not received an order of the dismissal and today the sheriff posted notice that she has to v acate by the 2oth of Jan.
    I am outraged at the behavior of the clerk and the judge that allowed this to happen.
    I am helping her to object to the judges decision citing the extremely prejudicial treatment of a pro se defendant by the court and violating civil rules of procedure. any help would be appreciated

  29. Tweets that mention CASE DECISIONS « Livinglies's Weblog -- Topsy.com, on January 12, 2011 at 1:47 am said:

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  31. Kim Thomas, on January 7, 2011 at 10:31 am said:

    IBANEZ CAME DOWN A SHORT WHILE AGO.
    BIG WIN FOR ALL OF US!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
    Will try to post link later

  33. Fighting MERS in CA, on October 19, 2010 at 11:38 am said:

    (Mr. Garfield, please add this smoking gun case to your case list.)

    MERS WINS ARGUMENT IN COURT THAT IT DOES NOT TAKE OWNERSHIP OF THE NOTE.

    “MERS argues that it does not acquire mortgage loans and is therefore not a mortgage banker ……… because it only holds legal title to members’ mortgages in a nominee capacity and is contractually prohibited from exercising any rights with respect to the mortgages (i.e., foreclosure) without the authorization of the members.
    Further, MERS ARGUES THAT IT DOES NOT OWN THE PROMISSORY NOTES secured by the mortgages and has no right to payments made on the notes. ” MERS v. NEBRASKA DEPARTMENT OF BANKING AND FINANCE No. S-04-786

    Download case at:
    https://sites.google.com/site/mersfatalflawsincalifornia/MERS-Fatal-Flaws

  34. KimThomas, on October 9, 2010 at 2:40 pm said:

    WE CAN HELP!MA.& RI & CT.IF YOUR HOME HAS BEEN FORECLOSED ON CALL US WE WILL MAKE IT RIGHT FOR YOU. WE CAN HELP YOU RIGHT AWAY! NO FAMILY LEFT BEHIND! BUDGET PLANS FOR EVERYONE.WE CAN HELP YOU STAY IN YOUR HOME. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK ………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
    IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C. CALL KIM THOMAS OR GEORGE BABCOCK AT 401-274-1905 AND GET RELIEVE FROM YOUR PROBLEM!

  35. usjustice4all, on October 3, 2010 at 5:23 am said:

    KJP2U, on June 6, 2010 at 10:31 am Said:

    I like it !!!

  36. KimThomas, on August 22, 2010 at 10:27 am said:

    WE CAN HELP! NO FAMILY LEFT BEHIND! BUDGET PLANS FOR EVERYONE.WE CAN HELP YOU STAY IN YOUR HOME. POSSIBLY GET PRINCIPAL REDUCTION AND IN SOME CASES INTEREST RATE DEDUCTIONS. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK ………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
    IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C OR YOU HAVE A MORTGAGE WITH INDYMAC OR ONE WEST BANK CALL KIM THOMAS OR GEORGE BABCOCK AT 401-274-1905 AND GET RELIEVE FROM YOUR PROBLEM!

  37. Moises, on August 8, 2010 at 7:21 pm said:

    I have a big problem my attorney did not show up to my hearing & the Judge granted summary final judgment i was wonder if anyone could help me finding so case law regards this type of issue i spent a few days looking for case laws regards to my issue and no luck on finding any…

    I would need case law regarding rule 1.540 setting aside void judgment (especially summary judgment) when the ATTORNEY FAILS TO APPEAR AT THE HEARING…

    if anyone help or could please give me some leads or case laws would be greatly appreciated…

    Thank you,
    Sincerely: Moises

  38. KimThomas, on June 12, 2010 at 9:56 am said:

    Rhode Island & Mass. Attorneys get it! We will help you with your case.Initial free consultation and budget plans for everyone. We will help you stay in your home.
    Call the Christian Law Firm of George E.Babcock Law offices and ask for Kim Thomas or George Babcock at
    401-274-1905 or 401-352-5609.

  39. KJP2U, on June 6, 2010 at 10:31 am said:

    Okay, come on California attorneys…you don’t want to represent the homeowner because they have no money?

    How about this… I have a case, not yet in foreclosure, but about to file BK. I have proof of Notary fraud, what pool my mortgage went to (that is no longer reporting), that Wells Fargo is now taking over my loan to modify it because they never transferred the Note or Deed of Trust to the pool, the original lender was not licensed to lend in California, it went to a pool before we even closed escrow and more… It’s enough to shut Wells Fargo out completely.

    How about we pay YOU $1,500/month for 10 years instead of Wells Fargo if you win?

    I thinks that’s a bit more than a bank can pay you not to fight for us.

  40. KimThomas, on May 20, 2010 at 7:52 am said:

    BART E. HALEY, Plaintiff,
    v.
    ELEGEN HOME LENDING, LP; et al., Defendants.
    No. 3:10-cv-00046-LRH-RAM.

    United States District Court, D. Nevada.

    March 15, 2010.

    ORDER
    LARRY R. HICKS, District Judge.

    Before the court is defendant PNC Bank National Association’s (“PNC”) motions to dismiss and expunge lis pendens filed on January 29, 2010 (Doc. ##5, 6[1]) to which the other defendants have joined (Doc. #9). Plaintiff Bart E. Haley (“Haley”) filed an opposition and request for leave to amend on February 16, 2010. Doc. #11. Thereafter, PNC filed a reply on February 26, 2010. Doc. #14.

    I. Facts and Procedural History
    Haley refinanced real property through a loan with defendant Elegen Home Lending. The property was secured by a note and deed of trust. Haley defaulted on the loan and defendant Cal-Western Reconveyance Corporation, the substitute trustee, filed a notice of default on May 29, 2009. Doc. #5, Exhibit C. A notice of trustee’s sale was filed on November 13, 2007. Doc. #5, Exhibit D.Subsequently, on December 3, 2003, Haley filed a complaint alleging ten causes of action: (1) wrongful foreclosure; (2) fraud in the omission; (3) fraud in the inducement; (4) contractual breach of good faith and fair dealing; (5) tortious breach of good faith and fair dealing; (6) racketeering; (7) quiet title; (8) unjust enrichment; (9) declaratory relief; and (10) permanent injunction. Doc. #1, Exhibit 1. Thereafter, PNC filed the present motions to dismiss and expunge lis pendens. Doc. ##5, 6.

    II. Legal Standard
    In considering “a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). However, a court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in a plaintiff’s complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

    There is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). However, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels, conclusions, and a formulaic recitation of the elements of the cause of action. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (internal citations omitted).

    III. Discussion
    Wrongful Foreclosure
    An action for wrongful foreclosure requires that, at the time of the foreclosure sale, the plaintiff was not in breach of the mortgage contract. Collins v. Union Federal Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983). Here, Haley was in default on his mortgage obligations so there can be no sustainable action for wrongful foreclosure. See Doc. #1, Exhibit 1.

    Furthermore, a claim for wrongful foreclosure does not arise until the power of sale is exercised. Collins, 662 P.2d at 623. Haley filed his complaint before the property was sold. As such, his claim for wrongful foreclosure is premature and not actionable.

    Fraud
    “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” FED. R. CIV. P. 9(b). In order meet the heightened pleading requirements a plaintiff must specify the time, place, and content of the misrepresentation as well as the names of the parties involved. See Yourish v. Cal. Amplifier, 191 F.3d 983, 993 n.10 (9th Cir. 1999); see also, Parnes v. Gateway 2000, 122 F.3d 539, 549-50 (8th Cir. 1997) (requiring a plaintiff to allege the requisite who, what, where, when, and how of the misrepresentation). Here, Haley fails to allege anything more than defendants made misrepresentations to him. These allegations are insufficient to support a claim for fraudulent misrepresentation.

    In his opposition, Haley argues that where facts are peculiarly within the defendant’s knowledge, fraud may be alleged in general terms. See Rocker v. KPMG LLP, 148 P.3d 703, 709 (Nev. 2006) (overruled on other grounds Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d 670 (Nev. 2008)). However, the information here was not solely within defendants’ knowledge. Haley was present when the alleged misrepresentations were made and documents signed. Despite his personal knowledge of the events, he has failed to allege the requisite specificity under Rule 9(b).

    Good Faith and Fair Dealing
    a. Contractual Breach
    Under Nevada law, “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and execution.” A.C. Shaw Constr. v. Washoe County, 784 P.2d 9, 9 (Nev. 1989) (quoting Restatement (Second) of Contracts § 205). To establish a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must show that: (1) the plaintiff and defendant were parties to a contract; (2) the defendant owed a duty of good faith and fair dealing to the plaintiff; (3) the defendant breached his duty by performing in a manner unfaithful to the purpose of the contract; and (4) the plaintiff’s justified expectations were denied. See Perry v. Jordan, 134 P.3d 698, 702 (Nev. 2006) (citing Hilton Hotels Corp. v. Butch Lewis Prod. Inc., 808 P.2d 919, 922-23 (Nev. 1991).

    Here, Haley alleges that defendants breached the implied covenant because they misrepresented the cost of credit involved in the loan agreement. However, these alleged misrepresentations occurred before a contract was formed. See Doc. #1, Exhibit 1. A party cannot breach the covenant of good faith and fair dealing before a contract is formed. See Indep. Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 941 (2d Cir. 1998) (“an implied covenant relates only to the performance of obligations under an extant contract, and not to any pre-contract conduct”). Haley fails to allege facts to establish that a breach occurred after the contract between the parties was formed. Because Haley’s claim revolves entirely around alleged promises and misrepresentations made before the contract was entered into, it fails as a matter of law.

    b. Tortious Breach
    Haley also alleges that defendants breached their duty of good faith and fair dealing as fiduciary’s in their dealings with him. Generally, a lender does not owe a borrower a fiduciary duty. See Yerington Ford, Inc. v. General Motors Acceptance Corp., 359 F.Supp.2d 1075, 1092 (D. Nev. 2004). Haley has failed to allege sufficient facts to establish that defendants acted as anything other than arms length lenders which does not, in itself, create a fiduciary relationship.

    Absent a duty, there can be no breach. See A.C. Shaw Constr. v. Washoe County, 784 P.2d 9, 10 (Nev. 1989). Accordingly, Haley’s claim for breach of a fiduciary duty fails to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6).

    Racketeering
    In Nevada, civil racketeering claims brought under NRS 207.400, et seq., must be plead with specificity. Hale v. Burkhardt, 764 P.2d 866, 869 (Nev. 1988). That is, the complaint must allege at least two predicate crimes related to racketeering in order to sufficiently plead a racketeering claim upon which relief can be granted. Id.

    Here, Haley merely alleges that his loan was one of many executed in violation of the Nevada state laws. From Haley’s complaint, it is unclear what these violations were and, more importantly, what the two requisite “crimes” were. The court finds that Haley has failed to sufficiently plead a claim for civil racketeering upon which relief can be granted.

    Quiet Title
    Under Nevada law, a quiet title action may be brought by someone who claims an adverse interest in property. NRS 40.010. No defendant is claiming an interest in the property that is adverse to Haley. Therefore, Haley has no grounds to quiet title against the named defendants.

    Unjust Enrichment
    To set forth a claim for unjust enrichment, a plaintiff must allege that a defendant unjustly retained money or property of another against fundamental principles of equity. See Asphalt Prods. Corp. v. All Star Ready Mix, 898 P.2d 699, 700 (Nev. 1995). However, an action for unjust enrichment cannot stand when there is an express written contract which guides that activities of the parties. LeasePartners Corp. v. Robert L. Brooks Trust Dated Nov. 12, 1975, 942 P.2d 182, 187 (Nev. 1997).

    Here, there was a written contract between the parties, namely, the deed of trust and mortgage note. These documents guided the interactions, obligations, and rights of the parties. As such, Haley cannot make a claim in equity for actions that are guided by contract he is a party to. See LeasePartners Corp., 942 P.2d at 187-88.

    Declaratory Relief and Permanent Injunction
    Haley’s remaining causes of action for declaratory relief and a permanent injunction are remedies that may be afforded to a party after he has sufficiently established and proven his claims. Here, all of Haley’s other claims fail to establish a claim for relief. Accordingly, Haley is not entitled to his requested remedies.

    Request to Amend
    In opposition to PNC’s motion to dismiss, Haley requests leave to amend his complaint to correct any deficiencies. However, other than briefly asking for leave to amend, Haley has not established how any proposed amended pleading would address and fix the issues raised by PNC’s motion. In particular, Haley has failed to state how he could satisfy the heightened pleading standard for his fraud claims; he has not alleged, or stated he could allege, whom he allegedly spoke to, what fraudulent statements he was told, and when he was told them.

    In light of Haley’s failure to provide the court with any indicia that amendment would not result in dismissal, the court declines to exercise its discretion and shall deny Haley’s request to amend. See United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (courts may refuse to grant leave to amend if the amendment would be futile). Additionally, the court notes that Haley’s request is procedurally improper. Pursuant to Local Rule 15-1(a), a party requesting leave to amend a pleading shall attached the proposed pleading to the request to amend. Haley did not attach a proposed amended pleading with his opposition. Accordingly, his request is procedurally defective.

    IT IS THEREFORE ORDERED that defendant’ motion to dismiss (Doc. #5) is GRANTED. The complaint is DISMISSED as to all defendants.

    IT IS FURTHER ORDERED that defendant’s motion to expunge lis pendens (Doc. #6) is GRANTED. Defendant PNC Bank National Association shall file an appropriate order with the court expunging the lis pendens and submit the same for signature.

    IT IS FURTHER ORDERED that the clerk of court shall enter judgment appropriately.

    IT IS SO ORDERED.

    [1] Refers to the court’s docketing number.

  41. KimThomas, on May 17, 2010 at 2:49 pm said:

    [scribd id=29001315 key=key-1ovdg3puqsfan53jqeu7 mode=list]

  42. utsava, on May 8, 2010 at 10:23 am said:

    Check out FEDERAL V. ERHART

    A pro se won a forcible detainer.

  43. kim thomas, on April 1, 2010 at 6:43 pm said:

    MERS, INC., APPELLANT, VS. SOUTHWEST HOMES OF ARKANSAS, APPELLEE
    September 23, 2009

    MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., APPELLANT, VS. SOUTHWEST HOMES OF ARKANSAS, APPELLEE

    No. 08-1299

    SUPREME COURT OF ARKANSAS

    2009 Ark. LEXIS 121

    March 19, 2009, Opinion Delivered

    NOTICE:

    THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

    SUBSEQUENT HISTORY: Rehearing denied by Mortgage Elec. Registration Sys. v. Southwest Homes of Ark., Inc., 2009 Ark. LEXIS 458 (Ark., Apr. 23, 2009)

    PRIOR HISTORY: [*1]

    APPEAL FROM THE BENTON COUNTY CIRCUIT COURT, NO. CIV07-223-2, HON. DAVID S. CLINGER, JUDGE.

    DISPOSITION: AFFIRMED.

    COUNSEL: George Nicholas Arnold – Counsel for the Appellant.

    Howard Keith Morrison – Counsel for the Appellant.

    Thomas D. Stockland – Counsel for the Appellee.

    JUDGES: JIM HANNAH, Chief Justice. IMBER, DANIELSON and WILLS, JJ., concur.

    OPINION BY: JIM HANNAH

    OPINION

    JIM HANNAH, Chief Justice

    Mortgage Electronic Registration System, Inc. (”MERS”) appeals a decision of the Benton County Circuit Court denying its motion to set aside a decree of foreclosure and to dismiss the foreclosure action. 1 MERS alleges that the circuit court erred in ordering foreclosure because as the holder of legal title it was a necessary party that was never served. We affirm the circuit court and hold that under the recorded deed of trust in this case, James C. East, as trustee under the deed of trust, held legal title. Because MERS was at most the mere agent of the lender Pulaski Mortgage Company, Inc., it held no property interest and was not a necessary party. As this case presents an issue of first impression, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(1).

    1 Mortgage Electronic Registration System, Inc.’s (”MERS”) motion was [*2] entitled Motion to Set Aside Default Judgment; however, the circuit court found, and the parties agree, that MERS was never served. Because MERS was never served, it could not have failed to respond to that service and suffer a default judgment. The relief sought was that the decree of foreclosure be set aside and the foreclosure action be dismissed.

    This case arises from foreclosure on a 2006 mortgage granted in a one-acre lot. A prior deed of trust also encumbered the property. In 2003, Jason Paul Lindsey and Julie Ann Lindsey entered into a deed of trust on a one-acre lot in Benton County to secure a promissory note. The lender on that deed of trust was Pulaski Mortgage, the trustee was James C. East, and the borrowers were the Lindseys. MERS was listed on the deed of trust as the “Beneficiary” acting “solely as nominee for Lender,” and “Lender’s successors and assigns.” The second page of the deed of trust states that “the Borrower understands and agrees that MERS holds only legal title to the interests granted by the Borrower and further that MERS as nominee of the Lender has the right to exercise all rights of the Lender including foreclosure.” The deed of trust was recorded.

    In [*3] 2006, the Lindseys granted the subject mortgage on the same property to Southwest Homes of Arkansas, Inc. to secure a second promissory note. This mortgage was recorded. On February 9, 2007, Southwest Homes filed a Petition for Foreclosure in Rem against the Lindseys under the 2006 mortgage. The Lindseys, the Benton County Tax Collector, and “Mortgage Electronic Registration System, Inc. (Pulaski Mortgage Company)” were listed as respondents. Pulaski Mortgage was served; however, MERS was never served. Pulaski Mortgage did not file an answer. 2 A Decree of Foreclosure in Rem was entered on April 4, 2007, and the property was auctioned to Southwest. An Order Approving and Confirming Commissioner’s Sale was entered on May 8, 2007. In February 2008, MERS learned of the foreclosure and moved for relief, arguing it was a necessary party to the foreclosure action. The circuit court denied the motion, and this appeal followed.

    2 Pulaski Mortgage was the lender of record. No assignment of the deed of trust was recorded nor had Pulaski Mortgage’s security interest been satisfied of record.

    MERS asserts that it held legal title to the property and, therefore, it was a necessary party to any action [*4] regarding title to the property. The deed of trust indicates that MERS holds legal title and is the beneficiary, as well as the nominee of the lender. It further purports by contractual agreement with the borrower to grant MERS the power to “exercise any and all rights” of the lender, including the right of foreclosure. However the deed of trust provides that all payments are to be made to the lender, that the lender makes decisions on late payments, and that all rights to foreclosure are held by the lender.

    No payments on the underlying debt were ever made to MERS. MERS did not service the loan in any way. It did not oversee payments, delinquency of payments, or administration of the loan in any way. Instead, MERS asserts to be a corporation providing electronic tracking of ownership interests in residential real property security instruments. See In re MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 861 N.E.2d 81, 828 N.Y.S.2d 266 (2006). According to MERS, it was developed by the “real estate finance industry” and was designed to facilitate the sale and resale of instruments in “the secondary mortgage market, which include one of the government sponsored entities.”

    MERS contracts with lenders to track security [*5] instruments in return for an annual fee. MERSCORP, supra. Those who contract with MERS are referred to by MERS as “MERS members.” According to MERS, MERS members contractually agree to appoint MERS as their common agent for all security instruments registered with MERS. 3 MERS asserts that it holds the authority to exercise the rights of the lender, and for that purpose, it holds bare legal title. Thus, it is alleged that a principal-agent relationship existed between MERS and Pulaski Mortgage under the contract terms of the deed of trust. 4

    3 The Kansas Court of Appeals, in Lankmark National Bank v. Kesler, 40 Kan. App. 2d 325, 192 P.3d 177 (2008), likewise found that Mortgage Electronic Registration System, Inc. acts as an agent. We note the analysis in this case is consistent with our own but also note that the Kansas Supreme Court granted review of the Landmark case.

    4 MERS is listed as a nominee on the deed of trust. A nominee is “a person designated to act on behalf of another, usu. in a very limited way.” Black’s Law Dictionary 1076 (8th ed. 2004). A nominee is also a “person who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit [*6] of others.” Id. As discussed above, MERS was not designated to act on behalf of another under the facts of this case. Further, it held no title in this case where title vested in the trustee, and finally, it received and distributed no funds for the benefit of others.

    “An agent is a person who, by agreement with another called the principal, acts for the principal and is subject to his control.” Taylor v. Gill, 326 Ark. 1040, 1044, 934 S.W.2d 919, 922 (1996) (quoting AMI 3d 701 (1989)). Thus, MERS, by the terms of the deed of trust, and its own stated purposes, was the lender’s agent, including not only Pulaski Mortgage but also any successors and assigns.

    MERS asserts authority to act, arguing that once it becomes the agent on a security instrument, it remains so for every MERS member lender who acquires ownership. This authority is alleged to arise from the contractual relationship between MERS and MERS members. Thus, MERS argues it may act to preserve the rights of the lender regardless of who the lender may be under the MERS electronic registration. We specifically reject the notion that MERS may act on its own, independent of the direction of the specific lender who holds the repayment [*7] interest in the security instrument at the time MERS purports to act. “[A]n agent is authorized to do, and to do only, what it is reasonable for him to infer that the principal desires him to do in the light of the principal’s manifestation and the facts as he knows or should know them at the time he acts.” Hot Stuff, Inc. v. Kinko’s Graphic Corp., 50 Ark. App. 56, 59, 901 S.W.2d 854, 856 (1995) (citing Restatement (Second) of Agency § 33 (1958)). Nothing in the record shows that MERS had authority to act. Here, Pulaski Mortgage was the lender and MERS’s principal. Pulaski Mortgage was a named party in the foreclosure action. Thus, MERS was not acting as the lender’s agent at the time it moved to set aside the decree of foreclosure.

    However, MERS also argues that it holds a property interest through holding legal title. Specifically, it purports to hold legal title with respect to the rights conveyed by the borrower to the lender. We disagree.

    “A deed of trust is ‘a deed conveying title to real property to a trustee as security until the grantor repays a loan.’” First United Bank v. Phase II, Edgewater Addition, 347 Ark. 879, 894, 69 S.W.3d 33, 44 (2001)(quoting Black’s Law Dictionary [*8] 773 (7th ed. 1999)); see also House v. Long, 244 Ark. 718, 426 S.W.2d 814 (1968). The encumbrance created by the deed of trust may be described as a lien. See, e.g., First Amer. Nat’l Bank of Nashville v. Booth, 270 Ark. 702, 606 S.W. 2d 70 (1980).

    Under a deed of trust, the borrower conveys legal title in the property by a deed of trust to the trustee. Phase II, supra. “In this state, the naked legal title to real property included in a mortgage passes to the mortgagee, or to the trustee in a deed of trust, to make the security available for the payment of the debt.” Harris v. Collins, 202 Ark. 445, 447, 150 S.W.2d 749, 750 (1941). The trustee is limited in use of the title to passing title back to the grantor/borrower in the case of payment, or to the lender in the event of foreclosure. See Forman v. Holloway, 122 Ark. 341,183 S.W. 763 (1916). The lender holds the indebtedness and is the beneficiary of the deed of trust. House, supra. A trustee under a deed of trust is not a true trustee. Heritage Oaks Partners v. First Amer. Title, Ins. Co., 155 Cal. App. 4th 339, 66 Cal. Rptr.3d 510 (Cal. Ct. App. 2007). Under a deed of trust, the trustee’s duties are limited to (1) upon default undertaking foreclosure [*9] and (2) upon satisfaction of the debt to reconvey the deed of trust. Id.

    In the present case, all the required parties to a deed of trust under Arkansas law are present, the borrower in the Lindseys, the Lender in Pulaski Mortgage, and the trustee in James C. East. Under a deed of trust in Arkansas, title is conveyed to the trustee. Harris, supra. MERS is not the trustee. Here, the deed of trust renamed James C. East as the trustee. The deed of trust did not convey title to MERS. Further, MERS is not the beneficiary, even though it is so designated in the deed of trust. Pulaski Mortgage, as the lender on the deed of trust, was the beneficiary. It receives the payments on the debt.

    The cases cited by MERS only confirm that MERS could not obtain legal title under the deed of trust. MERS relies on Hannah v. Carrington, 18 Ark. 85 (1856); however, that case stands for the proposition that a deed of trust vests legal tide in the trustee. We are also cited to Shinn v. Kitchens, 208 Ark. 321, 326, 186 S.W.2d 168, 171 (1945), where this court stated that “[t]he trustee named in the deeds of trust was a necessary party at the institution of the foreclosure suit, as also, of course, was Kitchens, [*10] the holder of the indebtedness.” East, as trustee, was a necessary party. MERS was not. Finally, we are cited to Beloate v. New England Securities Co., 165 Ark. 571, 575,265 S.W. 83 (1924), where this court stated that the real owner of the debt, as well as the trustee in the mortgage, are necessary parties in the action to recover the debt and foreclose the mortgage. Again, this case supports the conclusion that East was a necessary party and MERS was not.

    Further, under Arkansas foreclosure law, a deed of trust is defined as “a deed conveying real property in trust to secure the performance of an obligation of the grantor or any other person named in the deed to a beneficiary and conferring upon the trustee a power of sale for breach of an obligation of the grantor contained in the deed of trust.” Ark. Code Ann. § 18-50-101(2) (Repl. 2003). Thus, under the statutes, and under the common law noted above, a deed of trust grants to the trustee the powers MERS purports to hold. Those powers were held by East as trustee. Those powers were not conveyed to MERS.

    MERS holds no authority to act as an agent and holds no property interest in the mortgaged land. It is not a necessary party. In [*11] this dispute over foreclosure on the subject real property under the mortgage and the deed of trust, complete relief may be granted whether or not MERS is a party. MERS has no interest to protect. It simply was not a necessary party. See Ark. R. Civ. P. 19(a). MERS’s role in this transaction casts no light on the contractual issues on appeal in this case. See, e.g., Wilmans v. Sears, Roebuck & Co., 355 Ark. 668, 144 S.W.3d 245 (2004).

    Finally, we note that Arkansas is a recording state. Notice of transactions in real property is provided by recording. See Ark. Code Ann. § 14-15-404 (Supp. 2007). Southwest is entitled to rely upon what is filed of record. In the present case, MERS was at best the agent of the lender. The only recorded document provides notice that Pulaski Mortgage is the lender and, therefore, MERS’s principal. MERS asserts Pulaski Mortgage is not its principal. Yet no other lender recorded its interest as an assignee of Pulaski Mortgage. Permitting an agent such as MERS purports to be to step in and act without a recorded lender directing its action would wreak havoc on notice in this state.

    Affirmed.

    IMBER, DANIELSON and WILLS, JJ., concur.

    CONCUR BY: PAUL E. DANIELSON

    CONCUR

    CONCURRING [*12] OPINION.

    PAUL E. DANIELSON, Associate Justice

    I concur that the circuit court’s order should be affirmed, but write solely because I view the decisive issue to be whether MERS was, pursuant to Arkansas Rule of Civil Procedure 19(a) (2008), a necessary party to the foreclosure action. It can generally be said that “[n]ecessary parties to a foreclosure action are parties whose interest are inseparable such that a court would be unable to determine the rights of one party without affecting the rights of another.” 59A C.J.S. Mortgages § 708 (2008). See also 55 Am. Jur. 2d Mortgages § 647 (2008) (”[A]ll persons who are beneficially interested, either in the estate mortgaged or the demand secured, are proper or necessary parties to a suit to foreclose.”). Moreover, “[p]ersons having no interest are neither necessary nor proper parties, and the mere fact that they were parties to transactions out of which the mortgage arose does not give them such an interest as to make them necessary parties to an action to foreclose the mortgage.” Id. Indeed, our rules of civil procedure contemplate the same.

    Rule 19(a) of the Arkansas Rules of Civil Procedure speaks to necessary parties:

    (a) Persons to Be [*13] Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or, (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff, but refuses to do so, he may be made a defendant; or, in a proper case, an involuntary plaintiff.

    Ark. R. Civ. P. 19(a) (2008).

    Here, a review of the deed of trust for the subject property reveals four parties to the deed: (1) Jason Paul Lindsey and Julie Ann Lindsey, “Borrower”; (2) James C. East, “Trustee”; (3) MERS, “(solely as nominee for Lender, as hereinafter defined, and Lender’s successors and assigns)”; and (4) Pulaski Mortgage Company, “Lender.” The question, then, is whether MERS, [*14] as nominee, was a necessary party that had an interest “so situated that the disposition of the action in [its] absence may” have impaired its ability to protect its interest or left a subsequent purchaser or other subject to a substantial risk by reason of its interest. The answer is no; MERS, as nominee, was not a necessary party to the foreclosure action, because it held no such interest.

    Initially, I must note that my review of the deed’s notice provision reveals that the deed clearly contemplated the Lender as the party with interest, in that it provided:

    13. Notices. . . . Any notice to Lender shall be given by first class mail to Lender’s address stated herein or any address Lender designates by notice to Borrower. Any notice provided for in this Security’ Instrument shall be deemed to have been given to Borrower or Lender when given as in this paragraph.

    Here, as stated in the circuit court’s order of foreclosure. Pulaski Mortgage, as Lender, was served with notice of the foreclosure action, in accord with paragraph thirteen.

    But, in addition, MERS claims that because it holds legal title, it has an interest so as to render it a necessary party pursuant to Rule 19(a). Indeed, pursuant [*15] to the deed of trust, MERS held “only legal title to the interests granted” by the Lindseys,

    but, if necessary to comply with law or custom, MERS, (as nominee for Lender and Lender’s successors and assigns) has the right to exercise any and all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

    “Legal title” is defined as “[a] title that evidences apparent ownership but does not necessarily signify full and complete title or a beneficial interest.” Black’s Law Dictionary 1523 (8th ed. 2004) (emphasis added). Thus, as evidenced by the definition, holding legal title alone in no way demonstrates the interest required by Rule 19(a).

    MERS further claims that its status as nominee is evidence of its interest in the property, making it a necessary party. However, merely serving as nominee was recently held by one court to be insufficient to demonstrate an interest rising to the level to be a necessary party. In Landmark National Bank v. Kesler, 40 Kan. App. 2d 325, 192 P.3d 177 (2008), review granted, (Feb. 11, 2009). MERS also [*16] asserted that it was a necessary party to the foreclosure suit at issue. There, the district court found that MERS was not a necessary party, and the appellate court affirmed. Just as here, MERS was a party to the mortgage “solely as nominee for Lender.” 40 Kan. App. 2d at 327, 192 P.3d at 179. Based on that status, the Kansas court found that MERS was in essence, an agent for the lender, as its right to act to enforce the mortgage was strictly limited. See id.

    Agreeing with MERS that a foreclosure judgment could be set aside for failure to join a “contingently necessary party,” the Kansas court observed that a party was “contingently necessary” under K.S.A. 60-219 if “the party claims an interest in the property at issue and the party is so situated that resolution of the lawsuit without that party may ‘as a practical matter substantially impair or impede [its] ability to protect that interest.’” Id. at 328, 192 P.3d at 180 (quoting K.S.A. 60-219). Notably, the language of K.S.A. 60-219 quoted by the Kansas court is practically identical to the language of Ark. R. Civ. P. 19(a).

    The Kansas appellate court noted that MERS received no funds and that the mortgage required the borrower [*17] to pay his monthly payments to the lender. See id. It also observed, just as in the case at hand, that the notice provisions of the mortgage “did not list MERS as an entity to contact upon default or foreclosure.” Id. at 330, 192 P.3d at 181. After declaring that MERS did not have a “sort of substantial rights and interests” that had been found in a prior decision and noting that “a party with no beneficial interest is outside the realm of necessary parties,” the Kansas court concluded that “the failure to name and serve MERS as a defendant in a foreclosure action in which the lender of record has been served” was not such a fatal defect that the foreclosure judgment should be set aside. Id. at 331, 192 P.3d at 181-82.

    It is my opinion that the same holds true in the instant case. Here, Pulaski Mortgage, the lender for whom MERS served as nominee, was served in the foreclosure action. But, further, neither MERS’s holding of legal title, nor its status as nominee, demonstrates any interest that would have rendered it a necessary party pursuant to Ark. R. Civ. P. 19(a). For these reasons, I concur that the circuit court’s order should be affirmed.

    IMBER and WILLS, JJ., join.

    ——————————————————————————–

  44. kim thomas, on March 27, 2010 at 8:36 am said:

    Memo Heard before Honorable Jeffrey A. Lanphear

  45. Ann, on January 20, 2010 at 11:43 pm said:

    TNL
    Go read the post under the title “Find a Lawyer that Gets It”. There are new case law Motion to Dismiss granted with prejudice in Florida.

  47. kim thomas, on January 16, 2010 at 7:27 pm said:

    This was a huge win in Rhode Island for worked by Mr.Tohttp://www.babcocklawoffices.com/uploads/Pdfs/Cardi_v_MERS_11182009.pdfdd Dion and George Babcock at Babcocklaw.com Show the importance of knowing & questioning and being prepared. Good Job Guys!!

  48. TNL, on December 30, 2009 at 9:39 pm said:

    Does anyone know of any FLORIDA cases that have been dismissed “with prejudice” ???

    I have a Motion to Dismiss on one of my cases and am looking for any new rulings in FLORIDA.

    Thanks in advance …

    TNL

  49. Kate, on December 19, 2009 at 5:26 am said:

    I was looking to see if there was a decision on the Barazzas case against LaSalle…anyone know?

  50. Karen, on November 25, 2009 at 11:30 am said:

    Anything at all in California Federal court, especially in Santa Ana?

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