Huddleston Law Offices

3 Reasons to Consider a Short Sale

admin — Fri, 11 May 2012 21:45:14 +0000

Short sales, where owners sell their houses for less than they owe, can offer underwater borrowers an alternative to foreclosure. Equally important, they can give financially troubled homeowners a fresh start. Critics say that selling a home for less that it is worth can come with a steep price, including a lower credit score and the loss of any built up equity. But for a growing number of homeowners, the benefits outweigh the risks, particularly when their only alternative is foreclosure.

Why should you consider a short sale? Three reasons:

1. They can get you out of debt: With the incentive for banks to forgive debts that remain after the sales, the typical homeowner walks away debt-free. For most borrowers, it’s a good idea. If you want to get out from under the burden of your loan, it’s usually the best way, as long as you can convince the bank to agree not to collect the remaining debt.

2. They can benefit your lender: A short sale allows the lender to avoid adding another piece of property to their foreclosed inventory (which for many lenders is overloaded already). The lender also saves time and money in avoiding the foreclosure process. Finally, in most cases, the lender can get more money from the short sale than it can at a foreclosure auction.

3. They’re getting easier: On April 17, the FHFA directed Fannie Mae and Freddie Mac to develop enhanced and aligned strategies to facilitate short sales, deeds-in-lieu and deeds-for-lease to help more homeowners avoid foreclosure, including requiring that servicers review and respond to short sale requests within 30 days from receipt of a short sale offer. Read the News Release here.

More Foreclosures Avoided

Brian Huddleston — Wed, 14 Mar 2012 21:39:58 +0000

Good people sometimes need a second chance. Most foreclosures are a result of an unexpected life event, such as:

Death in the Family
Difficult and costly Divorce
Lost Job or had to Change Jobs
Health problems with Expensive Medical Bills

And never before has the expression “If I could just buy some time” meant so much. When facing foreclosure homeowners need time to discover their options, analyze their situation and implement an action plan. The most precious commodity is time…And it’s running out. However, there are various ways that an attorney can get you the time you need. Sometimes, as in a recent case, it is as simple as filing an Answer to the Petition and requiring the foreclosing lender to actually prove that it is the proper Plaintiff to bring the case. If it isn’t a Dismissal Without Prejudice is appropriate. Other times, as in another recent case, deficiencies in the Lender’s Motion for Summary Judgment can be identified, and the Judge may issue an Order denying the Lender’s Motion for Summary Judgment.

Homeowners’ options are changing because of the magnitude of the housing problem. There is a chance to work things out with the lender if the homeowner fights for that chance. More banks are willing to work with borrowers today simply because they really can’t manage the huge backlog of homes which have already been lost to foreclosure. If the borrower can present a viable plan to repay the loan, the chances of retaining home ownership are pretty good.

The process can go fairly quickly. Here’s a basic rundown of the mortgage modification process and how long each step takes:

• Obtaining the modification package: Getting a loan modification package in the mail can take anywhere from a few days to a few weeks, depending on how long it takes to get a hold of the right loss mitigation manger, and of course, how many other modification requests being considered at the moment. Lately, the attorneys for the foreclosing lenders have been willing to forward the applications directly to the attorney for the homeowner. This can speed up the process.

• Submission of the loan modification package: It should take a week to fill it out and get it back to the lender with all the requested documents.

• Underwriting and internal auditing: Once the lender receives the modification package, they will check it over for mistakes, and then send it on for an in-depth review. Assuming that no questions arise regarding the paperwork, this should only take a few days.

• Assignment to a mitigation specialist: After being reviewed by the underwriters (which can take another week or two), the matter will be assigned to a loss mitigation specialist who is authorized to make the final decisions regarding the loan modification request.

• Decision and mitigation process: One of the longest parts of the process, this step can take several weeks as the loss mitigation specialist reviews the request and begins negotiating new loan terms. It may take a week or two or even a month or two to complete – that really depends on the specialist’s case load.

• Completion of the new loan: Once the modification request is approved, the lender will send a packet to fill out and sign within 3-5 business days to complete the modification.

Getting a loan modified can take several weeks to several months to complete. The key is being pro-active and patient, all at the same time. A foreclosure defense lawyer is necessary to handle the foreclosure case, but homeowners don’t need to hire an expensive company to do their loan modification. On the contrary, doing the loan mod, or a short sale, yourself while your attorney defends the foreclosure case may lead to a better result and thousands of dollars saved.

How To Apply For A Share Of The Oklahoma Foreclosure Settlement

Brian Huddleston — Tue, 13 Mar 2012 00:34:16 +0000

To set the stage, we’ll begin with the numbers:

Five (5) servicers are subject to the settlement agreement – Ally Financial, Bank of America, Citigroup, JPMorgan Chase, and Wells Fargo

Amount the servicers are bound to pay Oklahoma in cash and in kind in connection with the agreement, representing the largest federal-civil government enforcement settlement: $18,600,000.00

Estimated amount that people who lost their homes in foreclosure will receive from the state fund: $1,500-2,000 each.

The settlement agreement is in the form of a Consent Judgment that was filed in the U.S. District Court for the District of Columbia on March 12, 2012. The Consent Judgment settles the claims specified in the Complaint, which the DOJ and the AGs simultaneously filed, and consists of several exhibits that comprise the substance of the settlement (collectively, the “Settlement Agreement”). In exchange for a release against certain federal and state civil and administrative claims, the servicers generally agree to pay billions of dollars in consideration, to be paid through a combination of cash (i.e., “hard dollars”) and in-kind contributions for consumer relief (i.e., “soft dollars”), including in the form of permanent principal forgiveness on delinquent loans and refinancings of current borrowers on “underwater loans” (for which borrowers owe more than the current value of the property). The Settlement Agreement also includes an agreement of the five servicers to adopt comprehensive servicing standards for residential mortgage loans. There are enforcement mechanisms, including the appointment of a monitor, to ensure servicer performance. The federal and state releases of certain future liability are comprehensive, but subject to various exceptions, such as criminal claims and claims relating to securitizations. Nevertheless, the settlement in its totality offers the servicers the opportunity to extinguish several actual and/or prospective claims relating to their prior residential loan servicing and origination practices and to end some of the uncertainty that has contributed to destabilization of the housing market.

Homeowners who believe they have been victims of unfair foreclosure practices are urged to begin the process of seeking help through an $18.6 million agreement reached between the state and several banks and mortgage lenders, an official said. Homeowners have begun requesting mortgage restitution forms from Attorney General Scott Pruitt’s office, said Diane Clay, Pruitt’s spokeswoman.

The form is a questionnaire that will help Pruitt’s office determine if a homeowner has been victimized by unfair foreclosure practices by five identified banks, Clay said. “We are getting requests for the form and mailing them out, but you can also download it at our website,” Clay said. “Anyone in Oklahoma who believes they were a victim of unfair practices during their foreclosure process should apply for compensation as provided by the Oklahoma settlement.”

When filling out the form, homeowners are urged to send accompanying documents, including emails, letters, notices, court filings, hand-written notes and other communications with a bank, said Tom Bates, chief of the Public Protection Unit for Pruitt’s office. Pruitt has faced questions over his decision to strike his own deal with bankers and lenders. Under Pruitt’s plan, Oklahoma is receiving about $10 million less than it would have received if the state had agreed to a national settlement along with 49 other attorney generals. Pruitt has defended his decision to opt out of the multistate $25 billion settlement between the states and five major lenders accused of unfair foreclosure practices.

Pruitt’s office crafted its own $18.6 million settlement with Bank of America, JPMorgan Chase, Wells Fargo, Citigroup and GMAC. All were subject to the recent $25 billion agreement. Bates said Pruitt would release more details of the state’s plan in the future, including a deadline for those applying for relief. “When the deadline is announced, you can probably expect a six-month window to apply for relief,” Bates said. The Public Protection Unit is developing an index to assess the harm and compensation needed, Clay said. The $18.6 million in relief will be placed in a special account overseen by Pruitt’s office, Bates said. The money is reserved for those believed to be victims of “robo-signing,” dual tracking or those told to stop making mortgage payments who ultimately face foreclosure, Bates said.

“There are individuals who were advised to stop paying (payments) to apply for the modification process, and what ultimately happened was they were foreclosed upon,” Bates said. “These are to be reviewed on a case-by-case basis.” Dual tracking is a process in which homeowners are told they are on track to modify their home loan to avoid foreclosure while at the same time the bank has them on a separate track to foreclose. Robo-signing involves mortgage-servicing companies affixing computer-generated signatures to foreclosure documents that require personal knowledge and verification of the information. ”The Attorney General’s program is for those foreclosed upon or on the cusp of foreclosure and who have been through the nightmarish process of (mortgage) modification,” Bates said.

In February, federal officials announced plans to modify the program by tripling financial incentives for private lenders to reduce mortgage principal for home-owners at risk of default. Oklahomans who may not qualify for Pruitt’s plan can still apply for assistance with loan-principal reductions or refinancing from the nationwide settlement, Bates said.

How to apply for the program:

Internet: If you believe you are a victim of foreclosure abuse by a lender, download and fill out this form. The form is also available on the AG’s Oklahoma Mortgage Settlement Information page.

You may e-mail the AG at: PublicProtection@oag.ok.gov.

On the phone: Call the AG’s Public Protection Unit at 405-521- 2029 and an application will be mailed to you.

For information on the refinancing and mortgage reduction options provided by the federal settlement, Oklahomans whose mortgages are with the banks involved in the settlement should call the following toll-free numbers:

Bank of America: 877-488-7814

Citigroup: 866-272-4749

GMAC: 800-766-4622

JPMorgan Chase: 866-372-6901

Wells Fargo: 800-288-3212

CPT ASSET BACKED CERTIFICATES, SERIES 2004-EC1 v. KHAM 2012 OK 22 – Assignment of Mortgage By MERS Is Insufficient To Establish Right To Foreclose

Brian Huddleston — Thu, 08 Mar 2012 17:47:47 +0000

“¶21 In the present case, Appellee claims they are the holder of the note and mortgage. The note found in the record contains no indorsements. Appellants state, in their Reply Brief, that an alleged original “blue ink” copy of the note was with Appellee’s counsel at the hearing on the motion/petition to vacate with a belated indorsement; however, the “blue ink” copy does not appear in the record and is not before this Court for review. For the above reasons, and more specifically because there is no indorsement on the note in the record, Appellee can not be a holder as defined by the statute.

¶22 The real issue is not whether or not one is a holder but whether or not one is entitled to enforce the note. As mentioned, a person/entity can be entitled to enforce the note without any indorsements. There is, however, a higher standard to meet to establish you are entitled to enforce the note if all you possess is the note without any indorsement.

¶23 Attached to Appellee’s petition to foreclose was an Assignment of Real Estate Mortgage. This assignment is dated October 21, 2008, wherein, MERS, as nominee for Encore, purports to assign the subject mortgage to Appellee. This document also reflects, MERS assigned the mortgage “together with the note, debts and claims thereby secured” covering the subject property. Therefore, it appears MERS attempted to transfer both the mortgage and note to Appellee by this document.

¶24 MERS is not mentioned in the note but only in the mortgage. The status given MERS in the mortgage is mortgagee and further states “MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns.” Encore is named as the Lender in the mortgage. Neither Oklahoma law nor the mortgage documents define the term “nominee.” In the absence of a contractual definition, the parties leave the definition to judicial interpretation. Black’s Law Dictionary (9th ed. 2009)defines a nominee as ” [a] person designated to act in place of another usu[ally] in a very limited way.” “This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves.” Landmark Nat. Bank v. Kesler, 289 Kan. 528, 216 P.3d 158, 166 (2009). By definition, a “nominee” is substantially the same as the definition of an “agent.”²² The legal status of a nominee/agent, then, depends on the context of the relationship of the nominee/agent to its principal. In the present case, that relationship appears to only be related to the mortgage and not the note. There is nothing in the record to demonstrate MERS had any authority to assign the note to Appellee although, arguably, it had authority to assign the mortgage. Assignment of the mortgage, however, does not assign the note. As previously stated, in Oklahoma, ownership of the note is controlling, and assignment of the note carries with it assignment of the mortgage – not the other way around. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717, 719. ”. . . [M]ortgage securing the payment of a negotiable note is merely an incident and accessory to the note, and partakes of its negotiability, and the endorsement and delivery of the note carries with it the mortgage without any formal assignment thereof.”Prudential Ins. Co. of America v. Ward, 1929 OK 71, ¶ 19, 274 P. 648, 650.

¶25 Therefore, if Appellee is trying to establish it is a person entitled to enforce the note by virtue of being a nonholder in possession who has the rights of a holder, the assignment of the mortgage is not supportive. A person trying to establish it is a nonholder in possession who has the rights of a holder must bear the burden of establishing its status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. Without anything in the record establishing Appellee is a person entitled to enforce the note, either as a holder or nonholder in possession who has the rights of a holder, there is nothing to establish Appellee’s standing in this case.

¶26 Appellee must also demonstrate it became a “person entitled to enforce” prior to the filing of the foreclosure proceeding. We find there is no evidence in the record establishing Appellee had standing to commence this foreclosure action. The trial court’s granting of a default judgment in favor of Appellee could not have been rationally based upon the evidence or Oklahoma law. Therefore, we find that the trial court abused its discretion when granting the default judgment. Because this issue is dispositive, we will not address the remaining issues on appeal. The order denying Appellant’s petition and motion to vacate should be reversed and remanded back for further proceedings to determine whether Appellee is a person entitled to enforce the note consistent with this opinion.”

BANK OF AMERICA, NA v. KABBA 2012 OK 23 – later supplied blank endorsement at MSJ stage creates question of fact barring summary judgment

Brian Huddleston — Thu, 08 Mar 2012 17:29:37 +0000

“¶8 In the present case, Appellee has only presented evidence of an indorsed-in-blank note and an “Assignment of Mortgage.” Appellee must prove that it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the foreclosure proceeding. In the present matter the timeliness of the transfer is in question. Since Bank of America did not file the blank indorsement until it filed its motion for summary judgment it is impossible to determine from the record when Bank of America acquired its interest in the underlying note.

¶9 The assignment of a mortgage is not the same as an assignment of the note. If a person is trying to establish they are a nonholder in possession who has the rights of a holder they must bear the burden of establishing their status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. In the present case, it appears Appellee is trying to use the “Assignment of Mortgage” in order to establish the purpose of delivery. The “Assignment of Mortgage” purports to transfer “[f]or value received, the undersigned, Mortgage Electronic Registration Systems, Inc., as nominee for BNC Mortgage, Inc., and its successors and assigns does hereby assign, transfer and set over unto Bank of America, National Association as Successor by Merger to LaSalle Bank National Association, as Trustee under the Trust Agreement for the Structured Asset Investment Loan Trust Series 2004-BNC2, that certain real estate mortgage dated August 30, 2004, granted by Momodu Ahmed Kabba and Humu Hawah Kabba, husband and wife….” This language has been determined by other jurisdictions to not effect an assignment of a note but to be useful only in identifying the mortgage. Therefore, this language is neither proof of transfer of the note nor proof of the purpose of any alleged transfer. See, In re Veal, 450 B.R. 897, 905 (B.A.P. 9th Cir. 2011).

¶10 Appellee must show it became a “person entitled to enforce” prior to the filing of the foreclosure proceeding. In the present case, there is a question of fact as to when and if this occurred and summary judgment is not appropriate. Therefore, we reverse the granting of summary judgment by the trial court and remand back for further determinations. If it is determined Bank of America became a person entitled to enforce the note, as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party.”

J.P. MORGAN CHASE BANK N.A. v. ELDRIDGE 2012 OK 24 – HAMP citation

Brian Huddleston — Thu, 08 Mar 2012 17:19:10 +0000

States the usual recent stuff:

“¶8 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the Note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.

⁴ An assignment of the mortgage, however, is of no consequence because under Oklahoma law, “[p]roof of ownership of the note carried with it ownership of the mortgage security.” Engle v. Federal Nat. Mortg. Ass’n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a “person entitled to enforce an instrument” by showing it was “(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 12A-3-309 or subsection (d) of Section 12A-3-418 of this title.” 12A O.S. 2001 §3-301.¶9 To show you are the “holder” of the note you must prove you are in possession of the note and the note is either “payable to bearer” (blank indorsement) or to an identified person that is the person in possession (special indorsement).⁵ Therefore, both possession of the note and an indorsement on the note or attached allonge⁶ are required in order for one to be a “holder” of the note.¶10 To be a “nonholder in possession who has the rights of a holder” you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement. The record in this case reflects the Note has not been indorsed. No negotiation has occurred because the person now in possession did not become a holder by lack of the Note being indorsed as mentioned. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held, without holder status and, therefore, the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203.”

But also gives us what I think is our first cite to what the OK Supremes have to say about HAMP:

^“2 HAMP is a federal loan modification program provided for under the scope of the Troubled Asset Relief Program (TARP). 12 U.S.C. § 5211. Pursuant to a Supplemental Directive 10-02 of HAMP, passed on March 25, 2010, mortgage servicers are required to (i) check Borrower eligibility for HAMP program protections and (ii) if the Borrower is determined to be eligible, make reasonable attempts to modify the terms of the loan prior to seeking foreclosure. HAMP applies to the Lender pursuant to a Servicer Participation Agreement entered into between the Lender and the Federal National Mortgage Association in March of 2010.”

DEUTSCHE BANK NATIONAL TRUST COMPANY v. RICHARDSON 2012 OK 15

Brian Huddleston — Thu, 01 Mar 2012 00:44:59 +0000

Appellee must show it became a “person entitled to enforce” prior to the filing of the foreclosure proceeding. There is a question of fact as to when and if this occurred, and thus summary judgment is not appropriate. Therefore, we reverse the granting of summary judgment by the trial court and remand back for further determinations. If it is determined Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party.

http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=465116

Deadline to Request Review Under the Independent Foreclosure Review Extended to July 31

admin — Thu, 16 Feb 2012 00:18:04 +0000

Board of Governors of the Federal Reserve System
Office of the Comptroller of the Currency
February 15, 2012

WASHINGTON–People seeking a review of their mortgage foreclosures under the Federal banking agencies’ Independent Foreclosure Review<http://www.independentforeclosurereview.com/> now have until July 31, 2012, to submit their requests.

The Office of the Comptroller of the Currency (OCC) and the Board of Governors of the Federal Reserve System (Federal Reserve) today announced that the deadline for submitting requests for review under the Independent Foreclosure Review has been extended. The new deadline, July 31, 2012, provides an additional three months for borrowers to request a review if they believe they suffered financial injury as a result of errors in foreclosure actions on their homes in 2009 or 2010 by one of the servicers covered by enforcement actions issued in April 2011.

The deadline extension provides more time to increase awareness of how eligible people may request a review through the Independent Foreclosure Review process and to encourage the broadest participation possible.

As part of enforcement actions issued in April 2011, the OCC, Federal Reserve, and the Office of Thrift Supervision required 14 large mortgage servicers to retain independent consultants to conduct a comprehensive review of foreclosure activity in 2009 and 2010 to identify borrowers who may have been financially injured due to errors, misrepresentations, or other deficiencies in the foreclosure process. If the review finds that financial injury occurred, the borrower may receive compensation or other remedy.

Borrowers are eligible for an Independent Foreclosure Review if they meet the following basic criteria:

* The mortgage loan was serviced by one of the participating mortgage servicers.
* The mortgage loan was active in the foreclosure process between January 1, 2009 and December 31, 2010.
* The property securing the mortgage loan was the borrower’s primary residence.

Participating mortgage servicers include: America’s Servicing Company, Aurora Loan Services, BAC Home Loans Servicing, Bank of America, Beneficial, Chase, Citibank, CitiFinancial, CitiMortgage, Countrywide, EMC, Everbank/Everhome Mortgage Company, Financial Freedom, GMAC Mortgage, HFC, HSBC, IndyMac Mortgage Services, MetLife Bank, National City Mortgage, PNC Mortgage, Sovereign Bank, U.S. Bank, Wachovia Mortgage; Washington Mutual, Wells Fargo; and Wilshire Credit Corporation.

There are no costs associated with being included in the review. For more information, borrowers can call 888-952-9105, Monday through Friday, 8 a.m.-10 p.m. ET or Saturday, 8 a.m.-5 p.m. ET or visit

www.federalreserve.gov/consumerinfo/independent-foreclosure-review.htm or www.occ.gov/independentforeclosurereview.

The County Assessor Just Sent Me A Notice Of Change In Assessed Value, Now What?

Brian Huddleston — Tue, 14 Feb 2012 01:32:27 +0000

If you have a disagreement with the assessor, you MUST NOT rely on just phone calls to protest the assessed value of your home.

You must file a written appeal within twenty (20) working days from the date you were mailed your notice of change in assessed value. The appeal/protest must be made by filing OTC Form #974 at the County Assessor’s office.

You must set out specifically the reasons for your disagreement with the assessed value, and also provide your own opinion of the home’s market value. You should attach all comparable sales information as evidence of value. If you don’t have time to get all the evidence before the filing deadline, get it and bring it to the hearing.

The Assessor’s staff will conduct an informal hearing considering all evidence presented. Final action, concerning the informal appeal, will be taken within five (5) working days of the informal hearing. Notice of this action will be mailed to you. Within ten (10) working days of the date this notice is mailed or delivered, you may file and appeal with the county board of equalization. Again, you should research comparable home values, and submit copies of your evidence during each step of the appeal process.

Oklahoma Supreme Court Provides Guidance Regarding Standing and Holder Defenses In Three Recent Foreclosure Cases.

Brian Huddleston — Sun, 12 Feb 2012 08:15:34 +0000

Deutsche Bank Nat’l Trust Co. v. Byrams, 2012 OK 4 (Okla., 2012) quote:

CONCLUSION

¶11 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010).

REVERSED AND REMANDED WITH INSTRUCTIONS

Deutsche Bank Nat’l Trust v. Brumbaugh, 2012 OK 3 (Okla., 2012) quote:

CONCLUSION

¶12 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff. This is accomplished by establishing that the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. 12A O.S. 2001, § 3-301. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or loan modification, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010).

REVERSED AND REMANDED WITH INSTRUCTIONS

HSBC Bank USA, Nat’l Ass’n v. Lyon, 2012 OK 10 (Okla., 2012)

Appellee must prove it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the foreclosure proceeding.

Download the rulings:

Deutsche Bank National Trust Company vs. Byram

Deutsche Bank National Trust Company vs. Brumbaugh

HSBC Bank USA, Nat’l Ass’n v. Lyon, 2012 OK 10 (Okla., 2012)