December 2, 2010

A Pennsylvania Superior court, in an appeal from an Order of the Court of Common Pleas of Allegheny County, has reversed a trial court order which denied the borrowers’ motion to set aside a sheriff’s sale and strike a default judgment in favor of Wells Fargo as the trustee of a securitized mortgage loan trust. The case, Wells Fargo Bank N.A. as Trustee for the MLMI Trust Series 2005-FF6 v. Lupori, 2010 PA Super 205 (November 12, 2010) was confined to one issue: that being whether the trial court committed error as a matter of law in denying the borrowers’ motions because the record on the date of judgment lacked any evidence whatsoever to establish that Wells Fargo was the real party in interest and possessed standing to prosecute the foreclosure. The court held that the trial court so erred.

The Court noted that the Complaint alleged an assignment of the mortgage loan from First Franklin to First Franklin Financial Corporation, but made no mention of any other assignment, and nowhere in the Complaint did Wells Fargo identify itself as the owner of the mortgage. In opposing the borrowers’ motions, Wells Fargo asserted that it received an assignment of the Corporation’s rights to the mortgage on April 1, 2005. The Court found, however, that the Complaint did not comply with Rule 1147(a)(1) of the Pennsylvania Rules of Civil Procedure, and that the April 1, 2005 assignment was not in the record at the time of the default judgment, thus warranting reversal of the trial court’s order.

In reversing the trial court’s order, the Court cited to Pennsylvania law which holds that where a defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter a default judgment and the default judgment will be considered void.

The Court noted in footnote 2 of its opinion that “The alleged assignment from the Corporation to Wells Fargo predates the assignment from the Bank to the Corporation. Wells Fargo argues on appeal that its assignment from the Corporation was a valid equitable assignment, despite the Corporation’s lack of an interest in the mortgage at the time it purportedly assigned the mortgage to Wells Fargo.” As the Court disposed of the matter on other grounds, the Court stated that “we need not reach this issue”.

We will thus say here what the Court hinted at with its descriptive language but which it declined to reach: the “purported” assignment to Wells Fargo was a fraud, period. It is readily apparent that Wells Fargo dummied up a fraudulent assignment in an attempt to cure the standing issue after the fact. Here, then, is proof positive of fraudulent conduct on the part of Wells Fargo in an attempt to sustain a foreclosure attempt, as we have seen time and time and time again across different jurisdictions in our cases.

We laud the Pennsylvania court for holding Wells Fargo to its burden and exposing this fraud to the public. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com