Is Neil Garfield high on the dope of the deprecated Glaski opinion? Neil has gone off on another rabbit hunt when he should spend his energy chasing the werewolves. But even if he caught a werewolf, he has no silver bullets, so the werewolf will just laugh at him.
In his message about the Legal Impossibility that a REMIC trust does not own the note, he brags on Dan Edstrom, who does scam securitization audits that never helped anyone save the house from foreclosure or win damages from injurious participants in the loan process. And he brags on the Thomas Adams amicus brief (Glaski_Affidavit-Thomas-Adams_5-15) on behalf of Glaski who lost his house to foreclosure and should have lost it, but got an appellate win by whining that the note went into the trust after the closing date.
******** New Erobobo opinion **********
“On July 17, 2006, Rotimi Erobobo executed a note to secure a loan from Alliance Mortgage Banking Corporation (hereinafter Alliance), to purchase real property located in Brooklyn. Erobobo gave a mortgage to Alliance to secure that debt, thus encumbering the subject premises. Wells Fargo Bank, N.A. (hereinafter the plaintiff), as trustee for ABFC 2006-OPT3, ABFC Asset-Backed Certificates, Series 2006-OPT3 (hereinafter the trust), alleges that it was assigned the note and mortgage on July 18, 2008. Erobobo allegedly defaulted on the mortgage in September 2009, and, in December 2009, the plaintiff commenced this action against Erobobo, among others, to foreclose the mortgage. Erobobo’s pro se answer contained a general denial of all allegations, and set forth no affirmative defenses. The plaintiff thereafter moved for summary judgment on the complaint, submitting the mortgage, the unpaid note, and evidence of Erobobo’s default. In opposition, Erobobo, now represented by counsel, contended that the plaintiff lacked standing because the purported July 18, 2008, assignment of the note and mortgage to the plaintiff failed to comply with certain provisions of the pooling and servicing agreement (hereinafter the PSA) that governed acquisitions by the trust, and was thus void under New York law. The plaintiff replied that Erobobo waived his right to assert a defense based on lack of standing by not asserting that defense in his answer or in a pre-answer motion to dismiss the complaint, and that, in any event, Erobobo’s contention was without merit.
“The Supreme Court concluded that Erobobo’s challenge to the plaintiff’s possession, [*2]or its status as an assignee, of the note and mortgage did not implicate the defense of lack of standing, but merely disputed an element of the plaintiff’s prima facie case, i.e., its contention that it possessed or was duly assigned the subject note and mortgage. On the merits, the court concluded that Erobobo raised a triable issue of fact as to whether the purported assignment of the note and mortgage to the plaintiff violated certain provisions of the PSA governing the trust, and was therefore void under EPTL 7-2.4. The plaintiff appeals. We reverse.
“The plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant’s default (see Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566, 567; Solomon v Burden, 104 AD3d 839; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856).
“In opposition, Erobobo failed to raise a triable issue of fact. Even affording a liberal reading to Erobobo’s pro se answer (see Boothe v Weiss, 107 AD2d 730; Haines v Kerner, 404 US 519, 520-521), there is no language in the answer from which it could be inferred that he sought to assert the defense of lack of standing. Nor did Erobobo raise this defense in a pre-answer motion to dismiss the complaint. Accordingly, the defendant waived the defense of lack of standing (see CPLR 3211[a]; [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167-168; Bank of N.Y. Mellon Trust Co. v McCall, 116 AD3d 993; Aames Funding Corp. v Houston, 57 AD3d 808; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244), and could not raise that defense for the first time in opposition to the plaintiff’s motion for summary judgment (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 240). In any event, Erobobo, as a mortgagor whose loan is owned by a trust, does not have standing to challenge the plaintiff’s possession or status as assignee of the note and mortgage based on purported noncompliance with certain provisions of the PSA (see Bank of N.Y. Mellon v Gales, 116 AD3d 723, 725; Rajamin v Deutsche Bank Natl. Trust Co., 757 F3d 79, 86-87 [2d Cir]).
“Erobobo’s contention that the plaintiff is not a “holder in due course” of the note and mortgage, as that term is employed in the UCC, is raised for the first time on appeal, and is not properly before this Court for appellate review (see Goldman & Assoc., LLP v Golden, 115 AD3d 911, 912-913; Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612, 618).”
In other words, Erobobo screwed up his case out of incompetence, but it had no merit anyway. And the New York appeals court sent him packing.
The Erobobo opinion cited Rajamin v Deutsche Bank Natl. Trust Co., a case dealing with assignment into the trust after the closing date.
Read the opinion, starting with the Justia summary:
“Plaintiffs appealed the district court’s dismissal of their claims against four trusts to which their loans and mortgages were assigned in transactions involving the mortgagee bank, and against those trusts’ trustee. The district court granted defendants’ motion to dismiss for failure to state a claim, finding that plaintiffs were neither parties to nor third-party beneficiaries of the assignment agreements and therefore lacked standing to pursue the claims. It is undisputed that in 2009 or 2010, each plaintiff was declared to be in default of his mortgage, and foreclosure proceedings were instituted in connection with the institution of said foreclosure proceedings, the trustee claimed to own each of plaintiff’s mortgage and that plaintiffs are not seeking to enjoin foreclosure proceedings. Assuming that these concessions have not rendered plaintiffs’ claims moot, the court affirmed the district court’s ruling that plaintiffs lacked standing to pursue their challenges to defendants’ ownership of the loans and entitlement to payments. Plaintiffs neither established constitutional nor prudential standing to pursue the claims they asserted.”
I can barely restrain myself from calling Neil Garfield an idiot for continuing to harp on this DEAD ISSUE of whether the note assignment into a trust after the closing date has any merit. Myriad courts have denounced the question as meritless. And it makes no sense when the Uniform Commercial Code clearly states that even a person in wrongful possession of a note may enforce it.
“UCC § 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.
“Person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.”
Apparently, Garfield wants you, the reader, to call him to help you with your mortgage problems, so that he can lure you into wasting your money on a securitization audit or his rescission package or some other useless service that will not save you from losing your home AND will not win you any compensation for injuries.
By my observation, 90% of single family home mortgagors get injured by someone involved in the lending process. The only practical, reliable way to beat the bank lies in finding those injures, and then attacking the injurious parties, demanding a settlement beneficial to you under threat of suing. And this remains true even if you have lost your home by relying on a scheming foreclosure pretense defense attorney.
Most borrowers need a competent professional mortgage examination team to review their loan-related documents in a search for evidence of injuries. Such evidence constitutes the “silver bullets” needed to subdue a lender “werewolf” in a negotiated settlement or lawsuit. And that is the ONLY methodology that works reliably.
For more details, visit the Mortgage Attack web site. Then Call Me or email me for help.
727 669 5511