Cases Dismissed for Lack of Standing -- New York / New Jersey
Wells Fargo v McNee(11/11) As the First Department held in Katz v. East-Ville Realty Co., (249 AD2d 243, 243), a “[p]laintiff’s attempt to foreclose upon a mortgage in which he had no legal or equitable interest [is] without foundation in law or fact" (see Kluge v. Fugazy, 145 AD2d 537). Hence, Wells Fargo’s attempt to foreclose upon the subject mortgage must be denied, the complaint dismissed, and McNee’s cross-motion(s) to dismiss for lack of standing pursuant to CPLR 3211(a)(3) granted.
Downey v. Trujillo(8/11)(Schack) Dismissed with prejudice.Schack was angered after lawyer Margaret Carucci said in a sworn affidavit that a Downey Savings & Loan officer on Dec. 24, 2010 claimed to have personally reviewed and could vouch for the accuracy of the paperwork underlying Trujillo's foreclosure -- although Downey had long ceased to exist.
Deutsche Bank v. Mitchell(8/11) Summary judgment reversed - sale vacated. The assignment was not perfected until after the filing of the complaint, and plaintiff presented no evidence of having possessed the underlying note prior to filing the complaint. If plaintiff did not have the note when it filed the original complaint, it lacked standing to do so, and it could not obtain standing by filing an amended complaint.
We vacate the sheriff's sale, the final judgment and the order granting summary judgment and remand to the trial court.
Deutsche Bank v. Francis(Dismissed With Prejudice-Schack)(3/11): I discovered that there is no record of plaintiff DEUTSCHE BANK ever owning the subject mortgage and note.?Therefore, with plaintiff DEUTSCHE BANK lacking standing, the instant action is dismissed with prejudice and the notice of pendency cancelled.
A want of "standing to sue," in other words, is just another way of saying that this particular plaintiff is not involved in a genuine controversy, and a simple syllogism takes us from there to a "jurisdictional" dismissal: (1) the courts have jurisdiction only over controversies; (2) a?plaintiff found to lack "standing" is not involved in a controversy; and (3) the courts therefore have no jurisdiction of the case when such a plaintiff purports to bring it.
Johnston v. HSBC *\*((complaint), (extrinsic fraud, real party) (3/11)
Extrinsic Fraud: Because the fraud is extrinsic in nature, HSBC is precluded from raising the doctrine of-- res judicata --as a defense against this Courts obligation to verify first and foremost that the claimant has federal jurisdiction “real party in interest" status.?Real Party in interest: HSBC MORTGAGE CORP (USA) (hereinafter, “HSBC") does not qualify as a?“real party of interest" pursuant to Rule 17 of the Federal Rules of Civil Procedure, which provides: "An action must be prosecuted in the name of the real party in interest." The purpose of this rule is to require that an action be brought "in the name of the party who possesses the substantive right being asserted under the applicable law...." 6A WRIGHT,MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1541 (1990) ("WRIGHT").
ALE v. U.S. Bank(Expunge Mortgage and Assignment*)(1/11)
EMC Mortgage v. Wink - (1/07) MERS, which is not itself the owner and holder of the note and mortgage, does not have the authority to assign the ownership of the note and mortgage to plaintiff. Judgment of foreclosure and sale is denied
Countrywide Home Loans, Inc. v Taylor- Mayer, J., Supreme Court, Suffolk County / Sept. 2007
Deutsche v. Marche- Order to Show Cause to VACATE Judgment of Foreclosure - 11June2009
U.S. Bank v. Emmanuel - (Judge Schack May 2010) Dismissed with prejudice. “foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity".
Plaintiff has renewed its application for an order of reference for the subject premises, but?the papers submitted fail to cure the defects enumerated in my prior decision and order. The?purported plaintiff, WELLS FARGO, does not own the instant mortgage loan. Therefore, the?instant matter is dismissed with prejudice.
- Two invalid assignments of the instant mortgage and note took place, with ARGENT assigning the note and mortgage to AMERIQUEST, and then AMERIQUEST assigning the note and mortgage to plaintiff WELLS FARGO. Both of these assignments were not recorded for more than fourteen months, until February 21, 2006, when they were both recorded at that same time.
Wells Fargo v. Reyes WITH PREJUDICE, Fraud on Court & Sanctions Judge Schack June2008 No defendant answered in this foreclosure action.
WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAPITAL1 INC., MSAC 2007-HE4, lacks standing and has never been the mortgagee in this foreclosure action, the instant complaint, Index No. 5516/08, is dismissed with prejudice; and it is further ORDERED, that the Notice of Pendency filed with the Kings County Clerk on February 21, 2008, by purported plaintiff, WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAPITAL1 INC., MSAC 2007-HE4, in an action to foreclose a mortgage for real property located at 379 Lincoln Avenue, Brooklyn New York (Block 4173, Lot 6, County of Kings), is cancelled.
Indymac Bank,FSB v. Boyd - Schack J. January 2009
Indymac Bank, FSB v. Bethley- Schack, J. February 2009(The tale of many hats)
Indymac Bank, v. Yano-Horoski- Judge Blasts Bank's Foreclosure Conduct and Cancels Mortgage.
LaSalle Bank Natl. Assn. v Ahearn- Appellate Division, Third Department (Pro Se)\
** HSBC Bank USA v Miller** 2009 NY Slip Op 29444 / Decided on October 29, 2009 / Meddaugh, J.
Lasalle Bank v. Smith, MERS(Judge Schack - March 22, 2010)
Wells Fargo Bank, Americas Servicing Company, MERS v Hunte(Judge Schack, Apr.14, 2010/ Dismissed with prejudice, possible sanctions.)(The court "discovered that WELLS FARGO executed a satisfaction of the instant mortgage more than ten months ago." "The Court is gravely concerned that: it expended scarce resources on an action that should have been discontinued." “the Court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct.")
Chase v.Johnson (Judge Schack May 4, 2010) (vacated judgment of foreclosure and sale with prejudiceas plaintiff lacked standing.)
OneWest Bank v. Cullen (Judge Zwack - March 3, 2010) (The Court finds that OneWest has failed to establish it has standing and dismissed the complaint.)