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From www.financialinstitutionlawblog
By Alejandro Moreno and Shannon Petersen
In Debrunner v. Deutsche Bank Nat. Trust Co. (Cal.App. 6 Dist., 2012) — Cal.Rptr.3d —-, 2012 WL 883128, the California Court of Appeal affirmed the dismissal of a complaint for wrongful foreclosure with prejudice, holding that a beneficiary under a deed of trust need not possess the original promissory note to commence foreclosure and that a borrower cannot avoid foreclosure based on a technical deficiency without showing actual prejudice. Plaintiff Debrunner was a private investor who extended credit to two borrowers secured by a second deed of trust on real property. The borrowers had previously obtained a loan from Quick Loans Funding, Inc. Quick Loans assigned the deed of trust and promissory note to Option One Mortgage Corporation, which later assigned them to FV-1, Inc., which later assigned them to Deutsche Bank, which appointed Saxon Mortgage Services, Inc. to service the loan.
The borrowers defaulted. Deutsche Bank recorded a notice of default naming itself as the creditor but providing the contact information for Saxon Mortgage. The plaintiff filed suit to halt the foreclosure, claiming Deutsche Bank had no right to foreclose because it did not physically possess the original promissory note and had not provided the correct contact information.
The Court rejected both arguments. It held that “nothing in the applicable statutes . . . precludes foreclosure when the foreclosing party does not possess the original promissory note.” The plaintiff’s attempted reliance on provisions of the California Commercial Code regarding negotiable instruments was misplaced because those provisions did not “displace the detailed, specific, and comprehensive set of legislative procedures … established for nonjudicial foreclosures.” The Court also held that, even if the notice of default was defective because it did not provide contact information for Deutsche Bank, the plaintiff did not and could not show prejudice as required to halt the foreclosure.
Authored by:
Alejandro E. Moreno Shannon Z. Petersen
Dispelling the Myth of MERS as a “Sham” Beneficiary
From www.financialinstitutionlawblog
In the current flood of mortgage litigation, plaintiffs often rely on myth to avoid paying their debts. One of the most pervasive concerns the Mortgage Electronic Registration System (MERS). Plaintiffs accuse MERS of being a “sham” entity, lacking authority to foreclosure and used by lenders to engage in fraud. In Cervantes v. Countrywide Home Loans, Inc., No. 09-17364 (9th Cir. Sept. 7, 2011), the Ninth Circuit Court of Appeals joins other recent courts in dispelling the Myth of MERS. In affirming the trial court’s dismissal with prejudice, the Court began by explaining that there is nothing inherently misleading or improper about MERS. MERS is a private electronic database that tracks the transfer of the “beneficial interest” in home loans, as well as changes in loan servicers. MERS was designed to avoid the need to record multiple transfers of deeds of trust by serving as the nominal record holder of the deed for the original lender and any subsequent lender. Accordingly, MERS holds legal title to the security interest conveyed even when the lender sells or assigns its beneficial interest in the loan. MERS serves a legitimate function. Further, the deed of trust—”an essentially private contractual agreement”—spells out MERS’ role. By signing it, the plaintiffs agreed to its terms, including those concerning MERS. So long as MERS acted consistently with the terms of the deed of trust, which it did, there can be no fraud. Finally, the Ninth Circuit held that any amendment by plaintiffs would be futile. Even if MERS acted fraudulently or without authority—and it did not—plaintiffs admittedly defaulted on their loans. The lender was entitled to foreclose even if MERS was not. Try as they might, there is no mythical loophole recognized by law to avoid paying a mortgage debt. Authored by: Mark G. Rackers Shannon Z. Petersen
The California Court Of Appeal Again Rejects A Claim For Wrongful Foreclosure At The Pleading Stage
From www.financialinstitutionlawblog
The recent published decision of Fontenot v. Wells Fargo Bank, N.A. (Cal.App.1 Dist., August 11, 2011) — Cal.Rptr.3d —-. 2011 WL 3506177, adds several more arrows to a secured lender’s quiver of arguments challenging wrongful foreclosure claims at the pleading stage. First, the Court explains in detail how and why publicly recorded documents can be judicially noticed to defeat contradictory allegations. Second, the Court holds MERS properly has all the authority to act on behalf of a lender or beneficiary under the terms of the agency agreement between MERS and the lender. Third, plaintiffs must plead “actual prejudice” to set aside a foreclosure sale based on irregularities in the foreclosure process. Here, even if MERS lacked authority to assist with the foreclosure, the only prejudice would be to the lender or the beneficiary, not the borrower. Fourth, if a plaintiff pleads breach of contract, it cannot also plead promissory estoppel based on that contract. If the contract claim fails, the estoppel claim must also fail. In Fontenot, the plaintiff alleges that she obtained a $1 million promissory note, secured by a deed of trust on real property. MERS was the nominee of the lender in the deed of trust. After the plaintiff defaulted, Wells Fargo (the servicer on the plaintiff’s loan) foreclosed on the property and sold it. Wells Fargo and MERS filed demurrers, which the trial court sustained without leave to amend. The Court of Appeal affirmed. To begin with, it explained in detail how publicly recorded documents may be judicially noticed in a wide variety of contexts. A court “may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in the recorded document, and the document’s legally operative language.” Accordingly, despite the allegations, the publicly recorded documents showed beyond a doubt that MERS was the beneficiary of the Deed of Trust and the authorized assignee of the lender. The Court also rejected the plaintiff’s contention that MERS lacked the authority to assign the note because it had no interest in the note. It is not necessary for MERS to have a possessory interest in the note to have the power to assign the note. Instead, MERS’s authority to assign the note is limited only by the terms of the agency agreement between MERS and the lender. The Court held the complaint failed to show that the assignee did not receive a proper assignment of the debt. To proceed with this theory, the plaintiff must plead that the assignee did not receive a valid assignment of the debt in any manner. Unlike an assignment of the security interest underlying the debt, the lender could have assigned the promissory note to assignee in an unrecorded document. Even if MERS lacked the authority to transfer the note, the plaintiff would have to plead some prejudice to proceed with her cause of action for wrongful foreclosure. “If MERS … lacked the authority to make the assignment, the true victim was not plaintiff but the original lender, which would have suffered the unauthorized loss of a $1 million promissory note.” The Court also held that Wells Fargo did not breach a forbearance agreement because the plaintiff did not comply with its terms. Further, if a plaintiff’s allegations regarding promissory estoppel show that there was a contract between the parties, then the plaintiff is limited to suing on a breach of contract claim. Fontenot v. Wells Fargo Bank, N.A. (Cal. App.1 Dist., August 11, 2011) — Cal.Rptr.3d —-. 2011 WL 3506177 Authored by: Alejandro E. Moreno Shannon Z. Petersen
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