In this appeal, the borrower contends the trial court erred by sustaining defendants’ demurrer as to all of his causes of action attacking the nonjudicial foreclosure.
“We conclude that, although the borrower’s allegations are somewhat confusing and may contain contradictions, he nonetheless has stated a wrongful foreclosure claim under the lenient standards applied to demurrers. We conclude that a borrower may challenge the securitized trust’s chain of ownership by alleging the attempts to transfer the deed of trust to the securitized trust (which was formed under New York law) occurred after the trust’s closing date.”
Transfers that violate the terms of the trust instrument are void under New York trust law, and borrowers have standing to challenge void assignments of their loans even though they are not a party to, or a third party beneficiary of, the assignment agreement. You can read the entire case by clicking here.
It’s axiomatic that in order to bring forth legal action, the plaintiff must have legal standing. Only the mortgagee has such standing. Thus variable problems like false or faulty affidavits, as well as back dated mortgage assignments, and altered or wholly counterfeited notes, mortgages, and assignments all relates to the evidentiary need to prove standing. And the Pretender Lender trying to foreclose on your property does not have standing.
The Supreme Court in Carpenter v. Longan stated that “the note and mortgage are inseparable…the assignment of the note carries the mortgage with it, while the assignment of the latter alone is a nullity”. This is where we get the saying “the mortgage follows the note”. Except for the 70 million mortgages that were put into MERS. In those cases the mortgages did NOT follow the notes, and therefore according to Carpenter v. Longan those assignments are a nullity (without legal validity)!
I cannot decide for you the moral obligations you should pursue; but if a wrong has been committed against you (such as a clouded title or a fraud resulting from a mortgage loan) you have the duty as an American property owner to correct it. Filing a lawsuit (in my book) reflects one’s personal responsibility.
Question: Can a Quiet Title Lawsuit result in clear and free property?
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