Assignment Of Mortgage Foreclosure

In doing so, the Court partially resolved a split in authority in the California Court of Appeal between held that a borrower's allegation that the assignment of his loan into a securitization trust occurred after the trust's closing date was sufficient to state a basis for concluding that the transfers were void as a matter of New York law. For purposes of determining whether the plaintiff had stated a claim, the Court assumed, without deciding, the truth of her allegation that the assignment of the deed of trust securing her promissory note in favor of New Century Mortgage Corporation was void and not merely voidable.The plaintiff alleged that the deed of trust was assigned to an investment trust more than four years after the trust closed and more than three years after the same deed of trust was assigned to New Century's bankruptcy trustee following its liquidation.However, if state law or customary practice prohibits an attorney-in-fact from executing substitutions of trustees, the servicer must submit the substitution of trustee documents to Fannie Mae for execution before the foreclosure proceedings begin.

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The Court was careful to state that it was not ruling upon or suggesting its views on the related questions of whether the plaintiff had alleged facts showing the assignment was void or that, to the extent that she had, she would be able to prove those facts.Ballard Spahr's Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs).Ballard Spahr's Mortgage Banking Group combines broad regulatory experience assisting clients in both the residential and commercial mortgage industries with formidable skill in litigation and depth in enforcement actions and transactions. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.The PSA mandates all mortgages need to be transferred to the trust on or before its closing date; however, the trust deed is assigned four years after the closing date of the trust.The successor mortgage holder then substitutes the trustee.The homeowner defaults on the mortgage and the substituted trustee records a notice of default (NOD).The owner fails to cure the default and the substituted trustee records a notice of trustee’s sale (NOTS). New Century Mortgage Corporation (February 18, 2016) third-party borrowers may only challenge the assignment of the trust deed in a wrongful foreclosure action and the standing to challenge exists only when the assignment is void.Claim: The homeowner seeks to preempt the foreclosure sale and quiet title to the property, claiming the assignment of the trust deed to the successor mortgage holder is void and thus the assignment to the substituted trustee is void as well since the assignment to the successor mortgage holder occurred after the closing date of the successor mortgage holder’s trust. This case concerns a pre-foreclosure challenge to the trustee’s ability to foreclose.Counterclaim: The successor mortgage holder claims the details of the assignment are immaterial to the homeowner’s obligations as a borrower and the homeowner cannot challenge the assignment since they are an unrelated third party and unaffected by any procedural deficiencies concerning the assignment. Further, the defect in the assignment of the deed of trust renders the assignment voidable by the mortgage holder.Facts: A homeowner obtains a mortgage from a lender secured by a trust deed on the property.The lender assigns the trust deed to a trust owned by a successor mortgage holder via a pooling and servicing agreement (PSA).


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