Source: Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
January 18, 2010
FDN attorneys Jeff Barnes, Esq. and local NJ counsel Michael
Jacobson, Esq. have scored a stunning victory in New Jersey resulting
in the reversal of a previously entered summary judgment and where the court made significant findings as to factual issues surrounding what appears to have been a double assignment by MERS first
to CitiMortgage and then to IndyMac. Although the 5-page written trial
court opinion is unpublished, the decision cites applicable New Jersey
Rules of Civil Procedure and decisional law applied to the facts of the
Plaintiff IndyMac had alleged that it was the current holder of the
note and mortgage. In granting the borrower’s Motion to Vacate the
previously entered summary judgment, the court determined that the lack of clarity in the assignment history warranted vacatur of the summary judgment.
As the Motion to Vacate was granted under Rule 4:50-1(f), the one-year
limitation to file such a motion was found not to apply.
The court found that the plaintiff had still not established the assignment history of the mortgage as required by Rule 4:64-1(b)(10), and this was a “substantial factual issue” because the plaintiff is required, at the very least, to provide proof of standing to foreclose by some evidence that it has a “stake in the outcome of the action”.
The court also found that whether MERS, as nominee, is not in a
position to assign the mortgage is a “substantial issue in and of
itself” which the courts in New Jersey have not yet addressed.
The court held that based on the alleged assignment history recited
by the plaintiff in its amended complaint for foreclosure, MERS as
nominee for IndyMac assigned the mortgage to the plaintiff approximately 20 months AFTER it had already assigned the mortgage to MERS as nominee for CitiMortgage, Inc. The court thus stated: “How
the plaintiff can foreclose on a mortgage ostensibly assigned to it
after the assignor had already assigned the mortgage to another
assignee is certainly a triable issue”.
The opinion is consistent with the plethora of opinions previously
issued by the United States Supreme Court and the state courts of New
York, Ohio, California, and other jurisdictions which have repeatedly
held that it is the burden of the plaintiff, in a foreclosure action,
to demonstrate that it has standing to foreclose by providing evidence
that it has a stake in the outcome of the foreclosure action.
Tags: assignment, bank fraud, bankruptcy, cdo, cds, conspiracy, criminal, deed of trust, foreclosure, fraud, Jeff Barnes, MERS, mortgage electronic registration system, produce the note, recordings, wrongful foreclosure