It’s about time!
In Yvanova v. New Century Mortgage Corporation et al, the Supreme Court of California reversed the Court of Appeal’s ruling, and held that a borrower plaintiff who has been subject to a nonjudicial foreclosure has standing to bring an action for wrongful foreclosure based on an allegedly void deed of trust assignment (without making any determination as to whether the alleged facts established a void assignment). In so doing, the Supreme Court came down solidly in favor of the “aggrieved” borrower thus settling, at least in California and likely other non-judicial foreclosure states, the issue regarding the standing of such a plaintiff to challenge the acts of a securitization trust. Since the financial crisis there have been several cases considering the standing issue, most notably the California Court of Appeal decisions in Glaski v. Bank of America, N. A. (2011) 198 Cal. App. 4th 256 (holding the plaintiff had standing to challenge the authority of the beneficiary to foreclose) and Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal. App. 4th 497 (holding the plaintiff had no standing to enforce the terms of the agreements allegedly violated). The Supreme Court stated “On the narrow question before us – whether a wrongful foreclosure plaintiff may challenge an assignment to the foreclosing entity as void- we conclude Glaski provides a more logical answer than Jenkins.”
The Yvanova case has a particularly bad fact pattern where the deed of trust was executed in 2006 together with an assignment of mortgage or deed of trust “in blank”, or without filling in the name of the assignee of the deed of trust and recording the assignment. New Century, the lender and beneficiary on the deed of trust, filed for bankruptcy on April 2, 2007 and on August 1, 2008 was liquidated and its assets were transferred to a liquidation trust. Prior to that time, the mortgage was sold to a securitization trust – MSAC-2007 Trust-HE-1 Pass Thru Certificates. Ocwen Loan Servicing LLC, as attorney in fact for New Century, completed the assignment of mortgage on December 19, 2011, and the assignment was recorded on December 30, 2011. Although not deciding on the issue of whether the assignment was “void” and not merely “voidable”, the Court noted that New Century no longer existed when the assignment of mortgage was “completed”. The foreclosure occurred in September 2012.
– See more at: http://www.natlawreview.com/article/california-supreme-court-opens-door-wrongful-foreclosure-lawsuits-and-challenges-to#sthash.0VJ760pC.dpuf
According to a public document called a Rescission of Substitute Trustee’s Sale and Cancellation of Substitute Trustee’s Deed, Kathy Nealy, an alleged co-conspirator of John Wiley Price’s, apparently bought or got her condo unit at The Terrace back into her ownership after it was sold to PHH Mortgage on August 9, 2013.
The mortgage default was rescinded on December 13, 2013, signed by Nealy on January 9, 2014, and notarized by Price on January 28, 2014.
Yet in DCAD, the ownership of unit 216 at The Terrace, 2323 N. Houston St., is still listed as the Federal National Mortgage Association. Huh.
Cheryl Jordan at the Dallas County Appraisal District says DCAD picks up whatever is filed at the Dallas County Clerk’s office. “We look at warranty deeds filed,” she says. “We can’t look at every court document filed, unless someone brings it to our attention.”
Well, now it’s now been brought to their attention.
Kathy Nealy, a political consultant currently under indictment by the FBI for an alleged bribery conspiracy, owned a unit inside the Victory Park highrise known as the Terrace. Once under foreclosure, Nealy’s unit was then taken off foreclosure rolls and the deed was transferred to Nealy and signed by John Wiley Price.
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Deeds Transferring Title to Fidelity Land Trust Company, LLC Are Rescinded, Deemed Null and Void
The Fidelity Land Trust Company, LLC (unrelated to Fidelity National Title Insurance Company) that obtained certain titles to homeowners’ residences may be clouded and deemed null and void based on a ruling from a Broward County, Florida, Circuit Court.
A Final Judgment has been issued against Fidelity Land Trust in the case ofOffice of the Attorney General v. Edward Cherry, et al, Case No. 12-269807(12)(17th Jud. Cir.), a case which involves a scheme that resulted in the execution and/or recording of a large number of quitclaim deeds or warranty deeds that have since been declared null and void.
The ruling of Office of the Attorney General v. Edward Cherry, et al may affect real property deeds recorded in many of the Clerk’s Offices in Florida, and therefore a copy of the Final Judgment has been recorded in each of Florida’s 67 County Clerk’s Offices.
Cherry and others were principals in Fidelity Land Trust. Fidelity Land Trustsolicited Florida homeowners to enter a program it offered that would allegedly allow the homeowners to cancel their current mortgage in return for the payment of thousands of dollars in upfront fees. Once in Fidelity Land Trust’s program, the homeowner was required to deed his or her home to Fidelity Land Trust, which would then file a quiet title lawsuit that claimed that the existing mortgage was not valid. Many of these quiet title actions have since been held to be frivolous and without merit in numerous state and federal court decisions, and homeowners who deeded their properties to Fidelity Land Trust are finding that they have a cloud on the title.