SOUTH CAROLINA COURT FINDS GENUINE ISSUES OF MATERIAL FACT AS TO TRANSFER OF LOAN TO SECURITIZED TRUST; 9TH CIRCUIT COURT OF APPEALS REVERSES ADVERSE SUMMARY JUDGMENT AS TO HOMEOWNER’S LIBOR-BASED CLAIMS

May 5, 2014

The Dorchester County, South Carolina Court of Common Pleas entered an Order on the homeowner’s Motion for Summary Judgment in a judicial foreclosure case which, although denying the Motion, identified issues relating to the claimed transfer of the loan to a securitization where US Bank is the claimed “trustee”. ┬áThe homeowner is represented by Jeff Barnes, Esq. and local South Carolina Bill Sloan, Esq. Mr. Barnes took the deposition of the Plaintiff’s representative, wrote the brief, and argued the matter before the Court.

The homeowner alleged that the MERS assignment, executed by known robo-signer Jeffrey Stephan some 16 months after the original lender filed Bankruptcy, transferred nothing, and thus all subsequent transfers (including one to GMAC, which also filed Bankruptcy) were legal nullities. The Court found, in its written opinion, that there are genuine issues of material fact regarding ownership of the Note and mortgage and as to the subsequent transfers. The Court also noted that US Bank failed to provide its “additional evidence” to the homeowner prior to the hearing and reminded US Bank that is has a continuing duty to comply with the homeowner’s discovery requests under South Carolina law.

Separately, the United States Court of Appeals for the 9th Circuit reversed the U.S. District Court’s ruling which had granted summary judgment to Deutsche Bank and Ocwen Loan Servicing on the homeowner’s LIBOR-based claims, which included a claim that the homeowner would not have entered into the loan transaction had she known that the Defendants were manipulating the LIBOR rate. The Court found that the homeowner adequately alleged injury-in-fact necessary for Article III standing (to sue in Federal court).

The Court clarified that the injury occurred when the loan was made, not upon payment of LIBOR-affected interest. The Court thus remanded the case for further proceedings on the homeowner’s claims under the Sherman Anti-Trust Act and her state law claims for fraud and breach of the covenant of good faith and fair dealing. This is significant, as the opinion essentially lends support to a claim arising out of an intentional non-disclosure relating to what the monthly payment would really be, which a homeowner needs in order to make an informed decision as to whether to enter into the loan transaction or not before any loan documents are signed.

The case is Galope v. Deutsche Bank National Trust Company as Trustee Under the Pooling and Servicing Agreement, etc., 9th Circuit Case No. 12-56892 (opinion of March 27, 2014). The homeowner is represented by Lenore L. Albert, Esq. of Huntington Beach, California.

One word of caution: the case is stamped “Not for Publication”, so it can only be used if permitted by law in the particular jurisdiction where it is sought to be used. It is, however, a large step in the right direction.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

Leave a Reply