U.S. Bank v. Ibanez

Posted on October 15, 2009. Filed under: bankruptcy, Case Law, Foreclosure Defense, Mortgage Law |

“when a foreclosure is noticed and conducted for one party by another, the name of the principal must be disclosed in the notice”

“A mortgage is a contract. It is fundamental and basic that a party seeking to exercise a contractual right (here, the power of sale) has the contractual right to do so at the time of its exercise.”

“I am puzzled at this since, as noted above and discussed more fully below, the plaintiffs’ own securitization documents required mortgage assignments to be made to the plaintiffs in recordable form for each and every loan at the time the plaintiffs acquired them. Surely, compliance with this requirement would (and certainly should) have been a priority for an entity issuing securities dependent on recoveries from loans, such as these, known from the start to have a higher than normal risk of delinquency and default.”

“since the blank mortgage assignments failed to name an assignee, they were ineffective to transfer any interest in the mortgage”

“actually holding something and having only the right to be its holder are two very different things. To obtain a mortgage assignment you do not actually possess presumes, at the least, that you have a demonstrable right to get it, that you will be able to determine the entity that validly holds the mortgage you need assigned (not always easy when all previous assignments have not been recorded at the Registry),1 that that entity will still be operational,2 that it will be able to find the relevant paperwork, that it will have someone with authority to execute the relevant paperwork, and that it will be able to do so in a timely fashion. These presumptions are not always accurate. See n. 21, supra. As noted above, even the plaintiffs, armed with all their contractual rights, knowledge, and (presumably) access to the relevant files and authorized persons, took ten months in Ibanez, and fourteen months in Larace, to get actual mortgage assignments in recordable form.”


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