October 26, 2011

         (Mr. Barnes had dental surgery last week and was out for several days; hence no articles last week)

The Appellate Division of the State of New Jersey has reversed a summary judgment which had been entered in favor of Aurora Loan Services, LLC. The opinion cited decisional law that a party must generally “own or control the underlying debt” in order to foreclose, and if the debt is evidenced by a negotiable instrument such as a promissory note, the determination whether a party owns or controls the underlying debt is governed by Article III of the UCC.

The Court found that Aurora was neither a holder of the note nor a person not in possession who is entitled to enforce, and that the Certification of Aurora’s “Vice President” did not state that she personally confirmed that the copies of the note, mortgage, and assignment were copies of originals in Aurora’s files.

More importantly, the Court found that the assignment, signed by a “Vice President” of MERS as nominee for Lehman Brothers, was ineffective first as there was no Certification by this VP or any other representatiive of MERS regarding the VP’s authority to execute the assignment or circumstances of the assignment. The problem with the assignment was further compounded by the fact that Lehman filed for Bankruptcy in 2008, which was before the date of what the Court termed the “purported assignment” in 2009, and the Court thus questioned whether Lehman’s designation of MERS as nominee remained in effect after Lehman filed BK absent ratification of that designation by the BK Trustee.

This same situation is present is many of our cases: the original lender (e.g. Lehman, WaMu, American Home Mortgage, Accredited Home Lenders, and others) files for BK, and the securitized trustee or servicer then purports to foreclose based on a post-BK filing assignment without any evidence that the assignment was permitted by the BK trustee. This opinion is what we believe to be the first which actually addresses this precise issue which relates directly to the threshold issues in any foreclosure of standing, real party in interest, and the “person entitled to enforce” issue under the UCC.

In Missouri, a probate Judge has dismissed a claim by HSBC Bank USA, N.A. as the claimed trustee of a series of Nomura “Asset-Backed Certificates”, finding that HSBC is not a “person” under either of the Missouri statutes which permit a “person” to make a claim in a probate proceeding. The Motion which precipitated the dismissal characterized HSBC as Trustee for the certificates as “nothing more than a stack of paper”. Apparently the Court agreed, and found that HSBC had no standing to sue.

This decision is important as it relates directly to who can make a claim relating to a mortgage and note. If a particular state statute provides only that a “person” may institute a foreclosure, and the trustee of a series of MBS does not quality as a “person”, then there should be no standing for that trustee to foreclose. Obviously, the individual state statute must be consulted, but this ruling provides a new avenue of attack on securitized “trustees” seeking to make claims.

Jeff Barnes, Esq.,