Lenders have lost an excuse for not foreclosing – from MND:

Two Appellate Courts in California, citing two separate rationales, have upheld the legal standing of MERS to foreclose

In Calvo v. HSBC  a deed of trust signed by Calvo identified CBSK Financial Group as the lender and MERS as the nominal beneficiary and lender’s agent.  HSBC acquired the Calvo loan, retaining MERS as its nominee but never recording an assignment of the deed of trust.   When Calvo defaulted HSBC initiated a non-judicial foreclosure.

The plaintiff has sued to set aside the trustee’s sale for an alleged violation of Section 2932.5 of the California Code which requires the assignee of a mortgagee (court’s emphasis) to record an assignment before exercising a power to sell real property. 

On September 12 the three justices of the Second District said the complaint was irrelevant as it applied only to mortgages, not to deeds of trust.  The Court, in fact, called the section of the code “practically obsolete and… generally ignored by borrowers, creditors, and the California courts.

The other suit, Robinson v. Countrywide, arises out of a loan from SBMC Mortgage also secured by a deed of trust naming MERS as “acting solely as a nominee for Lender and Lender’s successors and assigns,” and stating that “MERS is the beneficiary under this Security Instrument.”   

Subsequently Countrywide Mortgage, identifying itself as a debt collector and servicer of the loan notified the plaintiffs that their loan was delinquent but failed to respond for requests for documents and information from the plaintiff’s attorneys and later transferring the loan to its foreclosure management committee and then to ReconTrust which purported to be acting as agent for the beneficiary of the deed of trust.  Robinson alleged that their note was “sold and resold” on the secondary market and it had become difficult or impossible to determine its actual owner and that the identity of the person or entity that currently holds an ownership interest is unknown.

On September 12, the Fourth District Court citing its own May decision in Gomes v. Countrywide, stated that “the statutory scheme…does not provide for a preemptive suit challenging standing. Consequently, plaintiffs’ claims for damages for wrongful initiation of foreclosure and for declaratory relief based on plaintiffs’ interpretation of section 2924, subdivision (a), do not state a cause of action as a matter of law.”


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