January 23, 2015
Jeff Barnes, Esq. of W. J. Barnes, P.A. has been retained by the homeowner in a foreclosure case pending in the U.S. Virgin Islands. The Plaintiff has just recently sought to file an Amended Complaint. The case involves multiple alleged transfers of the loan and a MERS Assignment “signed” by Michelle Sjolander, who has testified in a prior deposition that she did not execute such documents.
Separately, the Florida 4th District Court of Appeal reversed a final judgment of foreclosure in a securitization case, holding that the plaintiff failed to demonstrate the chain of transfers of the loan where there was no endorsement on the Note. The decision in Murray v. HSBC Bank USA NA as Trustee, etc., No. 4D13-4316, was just issued two days ago on January 21, 2014. The court found that there was no evidence of a transfer from the original lender (Option One California) to the interim party Ace Securities Corp. as the securitization depositor.
HSBC argued that the PSA identified the Option One entity as a “successor” to Option One Mortgage Corporation and that Option One transferred its interest to HSBC through the PSA. The court disagreed.
This portion of the holding is important, as it shows that the borrower may challenge a transfer made allegedly in accordance with the PSA, notwithstanding the Castillo decision from the Florida 3d District Court of Appeal which held only generally, and without any specific facts, that a borrower cannot complain of noncompliance with the PSA.
Florida thus remains split on the issue of whether a borrower may assert defenses based on matters within the PSA, which conflict will remain unless and until the matter is taken to the Supreme Court of Florida for resolution of the conflict between the 3d and 4th appellate district courts.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com