In case you missed it, I’m sharing another amazing foreclosure litigation decision!
Homecomings Financial, LLC formerly known as Homecomings Financial Network, Inc. v Guldi was decided in the Supreme Court of New York, Appellate Division, Second Department on July 3rd, 2013.A little background:
In this case MERS was named as the nominee for the beneficiary (Greenpoint) on the original mortgage. The language in the mortgage gave MERS the right to foreclose. In May of 2005, MERS, as nominee for Greenpoint, commenced an action to foreclose on Walter Guldi’s property. Walter responded stating that MERS lacked standing to commence the action. On February 8th, 2006 MERS purportedly assigned the mortgage to Homecomings Financial Network Inc. In 2010, after Homecomings filed an amended complaint and supplemental summons, the Supreme court denied George Guldi’s (Walter Guldi’s son and estate manager) lack of standing claim and granted Homecoming’s request for summary judgment. However, in this recent decision the Appellate Division of the Supreme Court found that the Supreme Court erred in granting the plaintiff’s motion for summary judgment and reversed the decision!
Here are a few excerpts from this decision:
“In this case, the plaintiff (Homecomings Financial) failed to make a prima facie showing that MERS was a lawful holder of the mortgage and note at the time of the commencement of the action.”Although the mortgage instrument identified MERS as the nominee, and purported to grant MERS the authority to foreclose on the subject property, the mere presence of such language in the mortgage instrument itself "cannot overcome the requirement that the foreclosing party be both the holder or assignee of the subject mortgage, and the holder of the underlying note, at the time the action is commenced"
“The adjustable rate note specifically identified Greenpoint Mortgage as the "Lender" and"Note Holder," and the plaintiff failed to submit any evidence demonstrating that the note
was physically delivered to MERS prior to the commencement of the action, or that
Greenpoint Mortgage assigned the note to MERS prior to the commencement of the action”
“Moreover, although there was evidence that MERS assigned the mortgage instrument to the plaintiff during the course of the action, such an assignment would not render the plaintiff the holder of the note, since MERS could not transfer that which it did not hold”If you would like the .pdf file of the decision, let me know!
But first, Please help us help a friend of ours and sign this petition:
Here is the Petition Statement:
Stop the foreclosures in Prince George's County, Maryland. Call for a Prince George's County foreclosure moratorium until fraudulent bank behavior is addressed effectively, bank and foreclosure legislation is introduced or changed, the local judicial system is reviewed, loan scams are curtailed, housing counseling agencies are audited, and mortgage principals are reduced. We need standard bank laws for ALL banks. Stop predatory practices, e.g., interest rates above 5%. Hold local elected officials accountable.
Of course, Thank you to everyone who signed our Landtegrity.com petition.
Stay encouraged and keep fighting!
Thanks Chloe.. Great news!!