July 24, 2012
A Mecklenburg County, North Carolina Superior Court Judge has dismissed what is known as a NCGS 45-21.16 nonjudicial foreclosure proceeding filed by Aurora Bank FSB, finding that Aurora had not presented sufficient evidence that it was the holder of the Note and Deed of Trust (DOT), and thus it could not foreclose. North Carolina’s nonjudicial foreclosure procedure starts with a filing, by the party seeking to foreclose, of a notice of hearing requesting that the Court set a foreclosure sale date.
Aurora presented what it claimed to be the “original note” with several staple holes and an “Allonge” which contained two punch holes in the top center (whereas the Note did not). The Court found that the signatures on the “Allonge” did not appear to be original (those being of one Amy Hawkins, who has “executed” Allonges in the capacity of both a Vice President of First National Bank of Arizona (FNBA) and First National Bank of Nevada (FNBN), which merged before their assets were seized by the FDIC).
The homeowner presented documents demonstrating the transfer of the loan to a Lehman securitized mortgage loan trust which named Aurora as the servicer. The Court noted that Aurora’s claim as “holder” was inconsistent with the securitization documents which showed Aurora acting as servicer for the holder.
The Court found that there was no information offered as to the dates of the alleged endorsements from FNBA to FNBN or to Aurora, nor how these dates related to the seizure of assets by the FDIC, and ultimately held that the document attached to the “Original Note” cannot constitute an allonge. The Court dismissed the proceeding, concluding that Aurora failed to provide sufficient evidence that Aurora was the holder of the Note and DOT and also failed to demonstrate that it had standing to bring the action as the real party in interest.
FDN network counsel Brian F. Chapman, Esq. represents the homeowner. He can be reached at (704) 380-2039, website address: www.chapmanlawonline.com. The decision was filed on June 28, 2012.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com