April 24, 2013
For the fourth time, the Iowa District Court for Greene County has denied summary judgment sought by the foreclosing party, which was originally Wells Fargo but is more recently US Bank as Trustee of a securitized mortgage loan trust. This is a case we have reported on several times previously in connection with the Iowa Court’s prior three (3) denials of summary judgment. Jeff Barnes, Esq. represents the homeowner together with local Iowa counsel Christine Sand, Esq.
The case was originally filed by Wells Fargo, which dismissed without prejudice after being denied summary judgment three times. US Bank as Trustee re-filed the action, which involves a Lehman Brothers loan and a 2004 SASCO trust. The Court found that Wells Fargo had essentially lied under oath about being the “holder” of the Note (which it stated it was in an Affidavit filed in support of one of the prior motions for summary judgment), as Wells Fargo later admitted that the Note had been lost and never found. The Court rescinded one of the prior summary judgments on that basis.
The fourth Motion for Summary Judgment was denied by Ruling dated today, which states that the Court finds that there does exist a fact issue concerning the proper person to recover under the terms of the promissory note and the foreclosure of the accompanying mortgage. The original Note has not been produced to date, and none of the Affidavits filed by the Plaintiff address the relevant facts.
Separately, the Florida 5th District Court of Appeal has reversed a summary judgment in favor of JPMorgan Chase Bank in the matter of Green v. JPMorgan Chase Bank, N.A., Case No. 5D12-870 (opinion filed April 5, 2013). Green’s original loan was with WaMu. Chase moved for summary judgment, claiming that it had the right to enforce the Note and Mortgage through the Purchase and Assumption Agreement (P&AA) [with the FDIC] and thus JPM had standing. The Court found that the indorsement in blank on the Note did not establish that JPM had the right to enforce the Note when it filed suit as the indorsement was undated, and that the P&AA was not authenticated for purposes of summary judgment.
As we have previously reported, there is no Mortgage Loan Schedule to the P&AA per the sworn deposition testimony of former WaMu and JPM employee Lawrence Nardi (who is no longer with JPM and is now in senior management at Bank of America), and JPM has admitted, in a Motion for Summary Judgment filed in the Deutsche Bank v. FDIC and JPM litigation in the United States District Court for the District of Columbia, that is is “not the successor in interest to WaMu” per the P&AA.
We thank one of our dedicated followers for bringing the Green decision to us.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com