Fur further information please call 954-495-9867 or 520-405-1688
The only thing I would add to this is that Aurora was never real — it was a sham corporation to continue the illusion of ownership and rights to enforce unenforceable mortgages that were fraudulently created and where ownership was fraudulently created by self serving documents. The purpose of Aurora was the same as what Chase did — create a vehicle by which ownership of loans or rights to enforce are claimed to exist even when they don/t Aurora was a creature of the now bankrupt Lehman Brothers. It is interesting that Aurora Loan Services is now DLJ Mortgage which matches with an old name on Wall Street — Donaldson, Lufkin and Jenrette — another investment bank that was active in “securitization.” So we have gone from Bankrupt Lehman to DLJ who was a player all along.
March 5, 2015
Court of Appeals Case No. 32A04-1403-MF-104
Appeal from the Hendricks Superior Court
The Honorable Matthew G. Hanson,
Cause No. 32D05-1109-MF-522
On July 31, 2009, Plunkitt and Imbody filed a joint Indiana Trial Rule 12(B)(6) motion to dismiss, arguing that Aurora could not enforce the note unless it showed that it was in possession of the original note. On the date of the hearingon the motion to dismiss, Aurora produced the original note, unendorsed, with no allonges attached to it. At the hearing, Aurora requested and received additional time to respond to the motion to dismiss. Three months later, in October 2009, Aurora filed its response to the Defendants’ motion to dismiss. To its response, it attached for the first time an “Allonge to Note” which purported to show that CIT had endorsed the note to Aurora. Appellant’s App. pg. 114. Aurora also argued, as an alternative theory, that it was entitled to enforce the note as a non-holder transferee pursuant to Uniform Commercial Code (“U.C.C.”) section 3-301(2), codified at Indiana Code sections 26-1-3.1- 301(2).
Plunkitt and Imbody filed a motion to strike the purported allonge and Aurora’s new theory of recovery, emphasizing that the undated allonge had not been produced or even mentioned during the nearly two years of litigation of the matter and that Aurora’s alternative theory of recovery was outside the scope of the pleadings. The trial court agreed with the Defendants and struck the allonge and the alternate transferee argument. The court then granted the Defendants’ motion to dismiss, noting that “striking having occurred, evidence that [Aurora] is the holder of the Note that is the basis of litigation in the within cause is totally lacking.” Appellant’s App. p. 126. Aurora moved to file a second amended complaint, and the trial court denied the motion. Aurora did not appeal the dismissal of its November 7, 2007 complaint.
In September 2011, nearly two years after the trial court granted the Defendants’ motion to dismiss in the first cause of action (“Aurora I”), Aurora filed another complaint under a separate cause number in the same superior Court.The complaint sought to enforce the note pursuant to Indiana Codesection 26-1-3.1-301 and alleged the same or substantially similar facts as the complaint filed in Aurora I. To the complaint, Aurora attached both the allonge stricken by the trial court in Aurora I and a second allonge, which purported to contain a blank endorsement of the note by Aurora. On November 1, 2011, Plunkitt and Imbody filed a motion for a more definite statement, noting that Aurora failed to state under which legal basis in Uniform Commercial Code section 301 it sought to enforce the note. Aurora amended its complaint on December 7, 2011, asserting that it was the note’s holder pursuant to U.C.C. section 301(1), codified at Indiana Code section 26-1-3.1-301(1). On January 12, 2012, Plunkitt and Imbody filed a joint motion to strike both allonges and to dismiss the case pursuant to Trial Rule 12(B)(6), Trial Rule 12(B)(8), and principles of res judicata. The trial court held a hearing on the Defendants’ motion to dismiss on December 5, 2013. At the hearing, counsel or Aurora informed the trial court that Aurora Loan Services had been dissolved and noted that it had filed a motion to substitute DLJ Mortgage in Aurora’s place as plaintiff.
The trial court held Aurora’s motion to substitute plaintiff in abeyance pending the court’s ruling on the Defendants’ motion to strike and motion to dismiss. On December 9, 2013, based in part on the Aurora I court’s order regarding the purported allonge, the trial court granted the Defendants’ motion to strike the allonges and dismissed the complaint pursuant to 12(B)(6), finding that “Aurora is still not a party with any provable right to proceed against the Defendant.” Appellant’s App. p. 20. The trial court denied the Defendants’ motion to dismiss pursuant to 12(B)(8) and principles of res judicata, noting that “the issue of whether default has occurred is still a matter that can be heard, but must be pursued by a correct Plaintiff” and that “the prior matter that was dismissed was done so based on the fact that the [Aurora] could not prove that they had a right back then any more than they can prove they have a right now.” Appellant’s App. p. 21.
Aurora filed a motion to correct error on January 9, 2014. In its motion, Aurora argued that the trial court failed to apply the proper standard when striking the two allonges and in determining that Aurora was not entitled to enforce the note and that the trial court should have converted the Defendants’ motion to dismiss to a motion for summary judgment. Aurora also requested leave to file a second amended complaint to assert an alternative theory of recovery based on Indiana Code section 26-1-3.1-301(2) and -301(3). The trial court denied Aurora’s request for leave to file a second amended complaint and denied Aurora’s motion to correct error.
For all of these reasons, we conclude that the trial court did not abuse its discretion in striking two allonges submitted by Aurora with its complaint and did not err in denying Aurora’s motion for leave to amend its complaint. The trial court did err in failing to convert the Defendants’ motion to dismiss to a motion for summary judgment, but because Aurora was provided a unique and ample opportunity to rebut the Defendants’ arguments over the course of two cases involving the same facts, this error was harmless.