Christiana Trust/Wilmington Savings Crash and Burn on Standing and More

Florida 4th DCA Opinion:

In this mortgage foreclosure case, the underlying mortgage was passed around like the flu, giving rise to a complexity of ownership that frustrated the appellee’s attempts to demonstrate standing at trial. To the answer brief, the appellee attached a chart of the ownership lineage of the mortgage and note, with different types of arrows pointing in all directions, a valiant effort which demonstrated that the transfer history here defies pictorial representation.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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see J Gross 4th DCA Opinion Goshen Mortgage adv Supria 12-6-17

You can’t make this stuff up. Order to enter JUDGMENT for homeowner not merely dismissal.

On the original note, Centerpointe Financial, Inc. is the lender. There is no blank indorsement from Centerpointe. There was an allonge purporting to effect a transfer, but the allonge was lost and not produced at trial. Appellee conceded at trial that it was not a holder of the note, but contended that it qualified as a nonholder in possession with the rights of a holder.

“A nonholder in possession may prove its right to enforce the note through: (1) evidence of an effective transfer; (2) proof of purchase of the debt; or (3) evidence of a valid assignment.” Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So. 3d 884, 885 (Fla. 4th DCA 2016). “A nonholder in possession must account for its possession of the instrument by proving the transaction (or series of transactions) through which it acquired the note.” Id. (citing Murray v. HSBC Bank USA, 157 So. 3d 355, 358 (Fla. 4th DCA 2015)).

Therefore, “[t]o prove standing as a nonholder in possession with the rights of a holder, the plaintiff must prove the chain of transfers starting with the first holder of the note.” PennyMac Corp. v. Frost, 214 So. 3d 686, 689 (Fla. 4th DCA 2017) (citing Murray, 157 So. 3d at 357-58). “Where the plaintiff ‘cannot prove that [a transferor] had any right to enforce the note, it cannot derive any right from [the transferor] and is not a nonholder in possession of the instrument with the rights of a holder to enforce.’” PennyMac, 214 So. 3d at 689 (quoting Murray, 157 So. 3d at 359).

Here, the first assignment of the note was invalid, because nothing in evidence demonstrated that the assignor had the authority to transfer or assign an interest in the note. Similarly, a second assignment was also invalid because nothing demonstrated that the assignor had an interest in the note that it could transfer. Among other problems, the third and fifth assignments transferred the mortgage, but not the note. The fourth assignment was infirm because of the problems with the earlier assignments.

One legal problem created by the third and fifth assignment is that a “mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Tilus v. Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015). “‘[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt’— not the other way around.” Peters v. Bank of N.Y. Mellon, 227 So. 3d 175, 180 (Fla. 2d DCA 2017) (quoting Johns v. Gillian, 184 So. 140, 143 (Fla. 1938)). The oblique reference in the assignments of mortgage to “moneys now owing” was not sufficient to transfer an interest in the note. See Jelic v. BAC Home Loans Servicing, LP, 178 So. 3d 523, 525 (Fla. 4th DCA 2015).

Because appellee failed to establish its standing to foreclose, we reverse the final judgment and remand for the entry of judgment for the appellant.

4 Responses

  1. This is paper laundering (same as money laundering) trying to confuse the true ownership identity, faulty chain of title and failures to properly & physically transfer the paperwork – and in most cases you will find Fannie or Freddie concealed in the background calling the shots as the ultimate investor.

    Plaintiffs should have to sign an affidavit that this loan was a final SALE, not a pledge, nor participation in rehypothecation and that no underlying agreements have been executed in relation to this loan and other party at any time. It should be a federal crime to conceal true ownership of the debt or to participate in a paper laundering scheme devised to create fraud on the court.

    Fannie and Freddie have allegedly sold loans in bulk to 3rd parties (likely to get the debt off their books and create an image of healthy corporations). Where are the assignments? And what are the underlying agreements? How much of the sale that the third party recovers do the GSEs collect? Is it a case of, “here’s the loan mortgage schedule – whatever you sell Fannie gets X%” and the 3rd party pays the legal fees rather than buy the loans outright for value?

    Everything else they do is crooked – why would this be any different?

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  2. Reblogged this on Deadly Clear and commented:
    “Times they are a changin’…”

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  3. WELL, “WILMINGTON blahblahblah was under an SEC Cease & Desist Order when the STATE OF VIRGINA’s BAR CARDS/JUDGE RICO STOLE my house out of my Son’s Family Trust. That property was owned FREE & CLEAR in Fee Simple since 2002!

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  4. I’m beginning to really like the 4th DCA ,, right in OCWENS backyard.

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