By: Dan Harris | Examiner.com
On October 17, 2012, the Queens Civil Supreme Court posted a ruling issued a week earlier in a 2 year old foreclosure case.
The Honorable David Eliot, Justice of the Queens County Supreme Court issued a ruling thwarting the efforts of US Bank as Trustee in a foreclosure case.
In his decision Judge Eliot held that…
“In an action to foreclose a mortgage, plaintiff establishes standing by demonstrating that it is both the holder or assignee of the subject mortgage as well as the holder or assignee of the underlying note” and he further held “In the case at bar, plaintiff failed to demonstrate that it had standing to commence the action…”
Judge Elliot also wrote… “To the extent that counsel for plaintiff states that plaintiff is in possession of the underlying note, same is insufficient to warrant denial of the motion.”
Queens foreclosure attorney Brian McCaffrey, Esq. represented the borrower and filed the motion to dismiss the action due to the banks faulty paperwork, questionable assignments and participation in the MERS system.
Interviewed for this article Mr. McCaffrey said that “lenders need to know that the old days of being able to take away someone’s home without proper evidence are quickly falling by the wayside” and “in this case the bank presented late date assignments drafted just prior to the commencement of the foreclosure action” a “red flag.’
Mr. McCaffrey explained that “the mortgage named MERS as the mortgagee of record meaning there were inherent defects in the chain of title to the mortgage, compounded by the fact that the loan was securitized into a pool of loans and sold off on Wall Street where traders were simply interested in making fast money and had little time for worrying about getting the paperwork right.”
Attorney McCaffrey further explained that the failure of US Bank to properly transfer the mortgage and then insisting on foreclosing rather than modifying the loan had the effect of the bank “hoisting itself on its own petard.”
When questioned by this reporter the homeowner, Mr. Combs said “This is a big one” and “all I ever wanted was for the bank to modify the loan so that I could afford to keep my house… instead they refused and Mr. McCaffrey was forced to fight it out in court” Combs is now considering bringing a lawsuit against US Bank to quiet title on his property and expunge the mortgage.
According to Mr. McCaffrey this type of dismissal is becoming more common and banks who received taxpayer/homeowner/government bailouts are either failing to listen to their attorneys about the weakness in their case due to sloppy paperwork or their attorneys are not properly conveying the pitfalls of faulty assignments in front of Judges… “in this case it was obvious that the lenders assignment was invalid… they should have settled.”
Either way it would have been in US Banks best interest in this case to offer Mr. Combs a modification rather than lose their case.