emergency mtn stopped foreclosure note not produced

8/4/2019 Emergency Mtn Stopped Foreclosure Note Not Produced

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STATE OF NEW MEXICO

COUNTY OF TORRANCE

SEVENTH JUDICIAL DISTRICT

LESALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR MORGAN

STANLY MORTGAGE LOAN TRUST 2006-12XS

Plaintiff

v. CV-2008-103

ANKE HERNANDEZ, OCCUPANTS WHOSE TRUE NAMES ARE UNKNOWN;

MORGTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (SOLELY AS

NOMINEE FOR LENDER AND LENDERS SUCCESSORS AND ASSIGNS).

Defendants

EMERGENCY MOTION AND MEMORANDUM TO VACATE

SPECIAL MASTERS SALE AND FOR RECONSIDERATION OF

JUDGMENT

COMES NOW Defendant Anke Hernandez, pro se, and moves the court to reconsider

t

the judgment and vacate special masters sale scheduled for March 8th 2011 and in so

moving does state:

1. The Defendants requests that the court vacate special masters sale and to

vacate the judgment on the grounds that new evidence is available before the court

that shows that Le Salle did not have standing to bring the present litigation since the

assignment is dated after the complaint is brought in this case and judgment obtained.

Moreover, the assignment in this case was obtained by the Mortgage Electronic

Registration Systems, which has been determined to be an invalid assigner or

mortgages since it does not hold the note or the mortgage.

2. A Special Masters sale is scheduled for March 8th

2011 relying on a judgment

procured prior to this new evidence and an emergency hearing is requested to address

this evidence prior to the sale.


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3. New Evidence is available before this court not presented or available prior to

the judgment and in fact is executed after the judgment in this case. Specifically, Le

Salle presented its assignment of mortgage before the Bankruptcy Court and is

incorporated herein as Exhibit 1. The assignment that Le Salle relies on for its

standing in this case is dated May 15th

2009 and is an assignment from Mortgage

Electronic Registration Systems, Inc.

4. Mortgage Electronic Registration Systems, Inc or MERS acts as a mortgage

nominee for Reality Mortgage Corporation and has been the subject of immense

and widespread litigation. MERS does not hold the mortgage to the subject property

nor does it hold the subject note in this case. As such, MERS assignments have been

determined to be an illegal system of assigning mortgages.

5. The assignment was dated May 15th

2009, meaning that Le Salle did not have

standing to bring forth the litigation in this matter at the time it filed its complaint,

filed June 4th

2008 and in fact did not have standing at the time judgment was

procured in this case.

6. The July 6, 2006 note in this case was between defendants and Realty

Mortgage Corporation (Exhibit 2). Reality Mortgage Corporation and its subsidiaries

went out of business in February of 2009.

7. The Mortgage dated July 6, 2006 is between Borrower and MERS Mortgage

Registrations Systems acting solely as nominee for Lender. (Exhibit 3: Mortgage)

8. The original note has never been produced in this case nor has any assignment

been presented between Realty Mortgage Corporation and Le Salle Bank National

Association or Mortgage Stanley Mortgage Trust 2006-12XS.


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Legal Argument

Standard:

N.M. Dist. Ct. R. Civ. P. 1-060 allows the court to relieve a party for mistake,

inadvertence, surprise, excusable neglect or newly discovered evidence.

I. THE ASSIGNMENT FROM MERS FAILS TO DELIVER STANDING TO

LE SALLE BANK

Introduction:

MERS is a private corporation that administers the MERS system, a national

electronic registry that tracks the transfer of ownership interests and servicing rights

in mortgage loans. Through the MERS System, MERS becomes the mortgagee of

record for participating members through assignment of the members interest to

MERS. MERS is listed as the grantee in the official records maintained at county

register of deeds offices. The Lenders retain the promissory notes, as well as the

servicing rights to the mortgages. The lenders can then sell these interests to investors

without having to record the transaction in the public record. MERS is compensated

though fees charged to participating MERS members.Mortgage Elec. Reg. Sys., Inc.

v. Nebraska Depart of Banking, 270 Neb. 529, 530, 704 N.W. 2d 784 (2005).

MERS notes, including the note at bar, names MERS as a mortgage holder

acting solely as nominee for lender (See Exhibit 3). The mortgage rights certain

rights to the lender such as to right to receive notice of litigation, collect payments or

enforcing debt obligations and designates MERS as a nominee for the lender. As a

result, many courts have held that MERS notes create a split of rights between the

mortgage holder and the holder of the note, which creates legal problems of any

assignee of a MERS mortgage since by holding an assignment from a mortgage one

does not necessarily have standing to enforce the right of collecting on the debt. See


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Landmark National Bank v. Boyd, 216 P.3d 158,167, 289 Kans. 528 (Kans. 2009).

1. MORTGAGES TO MERS ARE UNENFORCEABLE

The legal relationship between MERS and the holder of the note is more akin

to a straw man than to a party possessing all the rights given to a buyer. Landmark

National Bank v. Boyd, 216 P.3d 158,167, 289 Kans. 528 (Kans. 2009). While

typically a mortgage holder and lender had intertwined that defy a separation of

interests, MERS mortgage holders assert some rights under certain circumstances as

the buyer of the note, but the document consistently refers to rights of the lender,

including rights to receive notice of litigation to collect payments, to enforce debt

obligation. The document consistently limits MERS to acting solely as nominee for

the lender.Id.

The Uniform Commercial Code govern the rights of parties purporting to hold

negotiable instruments. Article III of the commercial code requires that notes payable

to bearer (when bearers name is blank as in the case at bar) can be transferred by

physical delivery. UCC 3-203; 3-301.

MERS assignees generally argue that notes and mortgages are legally

inseparable. See Wells Fargo Bank, N.A. v. Perry, 23 Misc. 3d 827, 875 N.Y. S.2d

853, 856 (N.Y. Sup. Ct. 2009). However, in actual practice, under the MERS business

model, the Note is transferred among MERS members while the mortgage continues

to belong to MERS; thus, the very foundation of its business model requires that the

note and the mortgage is separated.In re Agard, 2011 Bank. LEXIS 488 (Bank.

E.D.N.Y. Feb. 10, 2011).

Indeed, in the event that a mortgage loan somehow separates interests of the


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note and the deed of trust, with the deed of trust lying with some dependent entity, the

mortgage may become unenforceable.Landmark National Bank v. Boyd, 216 P.3d

158, 166-167 289 Kans. 528.

Just such a circumstance exists in the present case. MERS as a system allowed

for the transfer of note without a transfer of the mortgage. The note was made to

Realty Mortgage Corporation. The assignment of mortgage to MERS. Realty

Mortgage Corporation went out of business in February of 2009. There is positively

no reason to believe the mortgage and note follow one another when Reality

Mortgage Corporation that is now out of business and was out of business prior to the

assignment from MERS to LeSalle Bank. Nor is there any proof of any consideration

from said assignment.

Bank of America replaced Le Salle Bank as substitute plaintiff in January 15th

2009 and the mortgage was assigned from MERS to Le Salle Bank on May 15th

2009.

There is no proof of an assignment, or production of the original note made out to

Realty Mortgage Corporation.

2. ASSIGNMENTS FROM MERS MORTGAGES REQUIRE THE

PRODUCTION OF THE ORIGINAL NOTE

A person bringing action to foreclose a mortgage must own the underlying

debt.

Gotlib v. Gotlib, 399 N.J. Super. 295, 944 A.2d 654 (App. Div. 2008); Garroch v.

Ocwen Loan Servicing, LLC, 284 S.W. 3d 619 (Mo. 2009).

InBank of New York v. Raftogianis, 2010 N.J. Super. LEXIS 221 (ChDiv.

June 29, 2010) Borrower challenged Banks right to foreclose which was based on a

MERs assignment the court ruled the case be dismissed since the Bank could not

prove it possessed the original note at the time of the filing. *1. The Bank produced an


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assignment from MERS executed shortly after the complaint was filed. *25. While the

court did not reject the MERS assignment, it did require that the original note be

produced stating that while the Bank can bring suit on behalf a Trust, the Trust itself

has not authority to enforce the note absent possession. *43.

Here, LeSalle Bank brings suit on behalf of Mortgage Stanley Trust, which

claims to possess the mortgage. But here, as inRaftogianis the trust has been thus far

unwilling or unable to produce the original note. But this case takes its lack of

standing a step further since the Trust has not even produced an assignment from

Reality Mortgage Company which has been out of business since February of 2009.

There is simply no trace of standing in this case.

II. THIS CASE SHOULD BE DISMISSED SINCE THEASSIGNMENT WAS

MADE AFTER THE COMPLAINT WAS FILED IN THIS CASE

A Plaintiff in a foreclosure action must establish it is the holder of the note and

the mortgage at the time the complaint is filed.In re Foreclosure Cases, 521 F. Supp.

2d 650 (U.S. Dist. 2007). Obviously, a complaint to foreclose a mortgage should be

filed by or on behalf of the individual or entity which has the right to enforce the

mortgage at the time of the filing.Bank of N.Y. v. Raftogianis, 2010 Super. LEXIS

221 (ChDiv. June 29, 2010).

InBank of New York v. Raftogianis, 2010 N.J. Super. LEXIS 221 the Plaintiff

produced an original note fourteen months after the complaint was filed.Id* 45. The

court held that Obviously, a complaint to foreclose a mortgage should be filed entity

which has the right to enforce the mortgage at the time of the filing. The court stated

that an appropriate remedy would be a dismissal.Id. At *45-46. The court went on

further to state that each case should be dealt with on a case-by-case basis and that the


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case was dismissed anyway since the Plaintiff could not prove it was in possession of

the original note at the time of the filing. *79.

Here, not only has the original note never been produced but the Plaintiff

suffers from the same temporal problems that the Bank in Raftogianis suffered from.

The assignment was made well after the Bank filed for foreclosure. In fact, the

assignment was made from MERS after the lender had gone out of business.

Moreover, in this case there is no evidence of any consideration received for the

assignment. Thus, the note was not negotiated for as required by Article III of the

Commercial Code. This case should be dismissed because there is not evidence the

Plaintiff had standing to bring the foreclosure at the time of the filing.

WHEREFORE

The Defendant Anke Hernandez respectfully moves the court to vacate the special

masters sale scheduled for March 8th

2011 and set aside the judgment.

Respectfully Submitted,

__________________

Anke Hernanez

(Address)

(Phone Number)

I hereby certify I mailed and faxed a copy of the foregoing this

______ of February 2011 to:

Sharon HanklaKaren Howden Weaver


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999 18th

St., Suite 2201, Bin 1

Denver CO 80202

(800) 286-0013

Fax (303) 285-2222


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STATE OF NEW MEXICO

COUNTY OF TORRANCE

SEVENTH JUDICIAL DISTRICT

LESALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR MORGAN

STANLY MORTGAGE LOAN TRUST 2006-12XS

Plaintiff

v. CV-2008-103

ANKE HERNANDEZ, OCCUPANTS WHOSE TRUE NAMES ARE UNKNOWN;

MORGTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (SOLELY AS

NOMINEE FOR LENDER AND LENDERS SUCCESSORS AND ASSIGNS).

Defendants

ORDER ON MOTION FOR RECONSIDERATION

THIS MATTER having come before the court on March 22, 2011, Bank of America

was represented by Le Natria Holly Jurist, Defendant Anke Hernandez was

represented by Eric N. Ortiz.

THIS COURT FINDS LeSalle Bank National Association lacked standing to

foreclose the subject property at the time judgment was entered.

THE COURT FURTHER FINDS the note executed from Anke Hernandez to Realty

Mortgage Corporation was endorsed to Reality Mortgage Corporation, not to bearer.

WHEREFORE Defendant Anke Hernandezs motion for consideration is well

taken and judgment and sale order is vacated.

__________________________

Judge Matthew Reynolds

Approved by:

Le Natria Holly Jurist

20 First Plaza NW, 87102

(505) 848-9500(505) 848-9516 Fax


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Submitted by:

Eric N. OrtizP.O. Box 40489

Albuquerque, NM 87196(505) 720-0070

(866) 897-9491 Fax


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emergency mtn stopped foreclosure note not produced

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