Core parts of the case and what I included in my case from Glaski VS BodA!! If this information becomes lots to read I will have my smartphone read it to me throughout the vehicle as I am driving so it ties up less of my time. When I worked with attorneys they didnt care about news articles they needed the core soup of the case PLEA COURT FILINGS not hear say bull crap. The Romeros responded by arguing, among other things, that the Bank ofNew York lacked standing to foreclose because nothing in the complaint established how the Bank of New York was a holder of the note and mortgage contracts the Romeros signed with Equity One. According to the Romeros, Securities and Exchange Commission filings showed that their loan certificate series was once owned by Popular ABS Mortgage and not Popular Financial Services Mortgage and that the holder was JPMorgan Chase. The Romeros also raised several counterclaims, only one of which is relevant to this appeal: that the loan violated the antiflipping provisions of the New Mexico HLPA, Section 58-21A-4(B) (2003). Here, as Equity One and MERS explained to the district court in a joint filing seeking to be dismissed as third parties to the Romeros counterclaims, MERS . . . is merely the nominee for Equity One, Inc. in the underlying Mortgage and was not the actual lender. MERS is a national electronic registry which keeps track of the changes in servicing and ownership of mortgage loans. See also Christopher L. Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. Cin. L. Rev. 10 1359, 1361-63 (2010) (explaining that MERS was created by the banking industry to electronically track and record mortgages in order to avoid local and state recording fees). The Romeros mortgage contract reiterates the MERS role, describing MERS [a]s a separate corporation that is acting solely as a nominee for Lender and Lenders successors and assigns. A nominee is defined as [a] person designated to act in place of another, usu. in a very limited way. Blacks Law Dictionary 1149 (9th ed. 2009). As a nominee for Equity One on the mortgage contract, MERS could assign the mortgage but lacked any authority to assign the Romeros note. Although this Court has never explicitly ruled on the issue of whether the assignment of a mortgage could carry with it the transfer of a note, we have long recognized the separate functions that note and mortgage contracts perform in foreclosure actions. See First Natl Bank of Belen v. Luce, 1974-NMSC-098, lj 8, 87 N.M. 94, 529 P.2d 760 (holding that because the assignment of a mortgage to a bank did not convey an interest in the loan contract, the bank was not entitled to foreclose on the mortgage); Sirnson v. Bilderbeck, Inc., 1966-NMSC-170, TT 13-14, 76 N.M. 667, 417 P.2d 803 (explaining that [t]he right of the assignee to enforce the mortgage is dependent upon his right to enforce the note and noting that [Noth the note and mortgage were assigned to plaintiff Having a right under the statute to enforce the note, he could foreclose the mortgage.); accord 55 Am. Jur. 2d Mortgages § 584 (A mortgage securing the repayment of a promissory note follows the note, and thus, only the rightful owner of the note has the right to enforce the mortgage.); Dunaway, supra, § 24:18 (The mortgage only secures the payment of the debt, has no life independent of the debt, and cannot be separately transferred. If the intent of the lender is to transfer only the security interest (the mortgage), this cannot legally be done and the transfer of the mortgage without the debt would be a nullity.). These separate contractual functions—where the note is the loan and the mortgage is a pledged security for that loan—cannot be ignored simply by the advent of modern technology and the MERS electronic mortgage registry system. https://dropbox/sh/n50t0uolrlblwkp/hF95cLUUhb
Posted on: Sat, 15 Feb 2014 18:25:13 +0000
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