U.S. Bank National Association As Trustee Foreclosure

Cases of trustees and U.S. Bank

Defendants Morris Bayonne Associates I, L.L.C., Morris Bayonne Associates II, L.L.C., Morris Bayonne Associates III, L.L.C. (collectively “the Morris L.L.C.s”), Joseph D. Morris, and Robert Morris (collectively “defendants”) are appealing both the June 7, 2013 order granting summary judgment to plaintiff U.S. Bank National Association (U.S. Bank) and the December 13, 2013, final foreclosure judgment. We concur.

  • The Morris L.L.C.s signed a $17,000,000 loan agreement and a promissory note in favor of Countrywide Real Estate Finance, Inc. on February 15, 2007. (Countrywide). The money was supposed to go towards the Bayview Shops in Bayonne. To ensure repayment of the note, the Morris L.L.C.s entered a mortgage, an assignment of leases and rents, a security agreement, and fixture filing (collectively “the mortgage”). Joseph D. Morris and Robert Morris guaranteed the loan. The mortgage was recorded at the Hudson County Clerk’s Office on February 21, 2007.

Countrywide then conveyed its entire loan interest to LaSalle Bank, National Association (LaSalle). An allonge endorsing the note to LaSalle, a mortgage assignment, a lease and rent assignment, and an omnibus assignment were all completed by Countrywide. On September 11, 2007, the assignments were filed with the Hudson County Clerk’s Office.

LaSalle assigned all of its stake in the loan to U.S. Bank on June 30, 2008. An allonge endorsing the note to U.S. Bank, a mortgage assignment, a lease and rent assignment, and an omnibus assignment were all executed by LaSalle. On March 31, 2009, the assignments were filed with the Hudson County Clerk’s Office. The allonge did not appear to be connected to the note at first; however, on August 27, 2012, CWCapital Asset Management L.L.C. (C.W.C.A.M.), the special servicer for and authorized agent of U.S. Bank, contacted U.S. Bank and got authorization to attach the allonge to the note.

Defendants defaulted under the conditions of the note after failing to make any payments after March 8, 2012. The defendants also failed to keep the tax escrow account up to date and pay real estate taxes to the City of Bayonne as required by the loan terms. U.S. Bank, C.W.C.A.M., and defendants entered into a pre-negotiation agreement in May 2012. (PNA). In the PNA, defendants admitted that: U.S. Bank was the loan’s holder; they had defaulted; they wanted to talk to U.S. Bank about the debt obligation; the loan documents were in “full force and effect and are binding;” and the loan documents were in “full force and effect and are binding.” “No claim against [U.S. Bank] under the Loan Documents,” they said, “including setoff, recoupment, estoppel, waiver, cancellation of instruments, retraction, novation, or excusing of performance.”

U.S. Bank filed a commercial foreclosure action against the defendants on September 4, 2012. Defendants responded with a written response. On January 28, 2013, U.S. Bank filed a motion for summary judgment in front of Judge Hector R. Velazquez, requesting that the matter be deemed uncontested. The case is sent to the Office of Foreclosure. U.S. Bank presented affidavits and certificates (collectively “affidavits”) of C.W.C.A.M. employees Rakesh Patel and Hussain Burhani in support of the motion, demonstrating that U.S. Bank was the note’s holder.

The defendants challenged the motion. They contested U.S. Bank’s claim to ownership of the note and the affidavits’ validity. As a result, the trial judge granted an adjournment on March 22, 2013, to allow defendants to question Patel or Burhani.

Defendants asserted that disparities between Burhani’s affidavits and deposition testimony presented genuine questions of material fact after he was deposed. The trial court disagreed, ruling U.S. Bank to be “the genuine holder of the note” who had “made a prima facie case for foreclosure.” According to the court, defendants also “failed to provide any evidence to indicate that there [were] serious disputed factual issues that would bar the granting of summary judgment,” according to the court. Defendants “cannot simply rely on their denials, charges, or the fact that discovery has yet to be taken” to defeat the petition for summary judgment, the court ruled. 1 The case was submitted to the Office of Foreclosure as an uncontested matter after the trial court awarded summary judgment.

A final foreclosure judgment was entered on December 13, 2013. Defendants were directed to pay U.S. Bank $18,710,449.77 from the sale of the mortgaged premises, including interest, costs, and fees. The property was also ordered to be sold at a public auction, which took place on May 6, 2014. Defendants have filed an appeal.

  • If “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law,” a trial court must grant a summary judgment motion. “An issue of fact is genuine only if the evidence given by the parties on the motion, combined with all legitimate inferences therefrom favoring the non-moving party, would compel referral of the matter to the trier of fact, taking into account the burden of persuasion at trial.”

Defendant does not dispute their signing of the loan documents, their default, or the possibility of foreclosure following default. Rather, the defendants argue that there was a legitimate dispute over U.S. Bank’s ownership of the note. At the time the forfeiture lawsuit was filed, “‘[A] person attempting to foreclose a mortgage must own or control the underlying debt.'” Bank of New York v. Raftogianis, 418 N.J. The plaintiff “lacks standing to proceed with the foreclosure action and the complaint must be dismissed” if it can’t prove ownership or control. 418 N.J. Super. at 597; Ford, supra. “If a debt is proven by a negotiable document, such as the note executed by the defendant,” Article III of the Uniform Commercial Code (U.C.C.), N.J.S.A. 12A:3-101 to -605, in particular N.J.S.A. 12A:3-301, governs whether the plaintiff established ownership or control over the note.” Ibid.

The trial court determined that U.S. Bank fell into the first category because it demonstrated that it was “‘At the time the complaint was filed, the holder of the note and the mortgage.


The plaintiff, U.S. Bank Trust National Association, as Trustee of the Cabana Series III Trust, filed a Motion for Summary Judgment (the “S.J. Motion”) on January 22, 2020, which was heard by the court (the “Plaintiff”). Plaintiff filed a Memorandum of Law supporting their S.J. Motion, which included certified copies of various foreclosure records lodged with the Barnstable County Registry of Deeds. Plaintiff’s S.J. Motion for Summary Judgment was opposed by Defendants Marshall Lopes-Pogue and Benjamin Lopes-Pogue (the “Defendants”) (the “Opposition”). The parties appeared and argued the S.J. Motion and Opposition already mentioned at the hearing. The plaintiff was represented by lawyers, while the defendants looked to be expressing themselves.

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Plaintiff claims that there are no genuine issues of material fact in dispute and that it is entitled to summary judgment on its claim for possession as a matter of law. Defendants filed no countering evidence or competing affidavit with their opposition to the entry of summary judgment in the plaintiff’s favor.

This is a post-foreclosure summary process (eviction) case in which the plaintiff seeks ownership of the property located at 99 Pine View Drive, Cotuit (Barnstable), Massachusetts (the “Property”), as well as the property’s fair rental value since the foreclosure date. Defendants are the adult offspring of the property’s previous owners, both of whom have passed away. After receiving a 72-hour notice to vacate, the defendants continue to live in the property. Defendants requested that this case be transferred from Barnstable District Court. Defendants submitted an answer, counterclaims, and a desire for a jury trial before the transfer.

Defendants filed a “Defendants’ Motion in Opposition to Plaintiff’s Motion for Summary Judgment” (the “Opposition”), which contains many components:

1) It was in the manner of a motion to compel or enforce discovery; and

2) it was accompanied by an attached “Defendants’ Statement of Material Facts,” which admits all but one of the plaintiff’s statements of material facts outlined in its S.J. Motion as true. While the Opposition of the Defendants is not a sworn document, the court accepts the Defendants’ allegations as accurate to discuss the S.J. Motion.

The court points out that the Defendants are the adult children of the Borrowers and Mortgagors, not the Borrowers or Mortgagors themselves. Defendants’ Opposition contests only the Corrective Assignment in Plaintiff’s chain of title, noting “[i]t is the Defendants’ opinion that the Corrective Assignment raises doubts,” to the extent Defendants have the standing to fight the foreclosure. The argument section of Defendants’ Opposition then questions the authority of specific people to talk to Defendants about a loan modification. The Defendants have determined that they require additional discovery to defend against the plaintiff’s claim fully. As a matter of law, the mere allegations of the defendants are insufficient to avoid summary judgment.

  • The Corrective Assignment’s Challenge

The Defendants failed to present any admissible evidence supporting their challenge to the Corrective Assignment’s legitimacy. The Defendants’ claim that the Corrective Assignment “raises doubts” is insufficient to prevent summary judgment. By definition, a Corrective Assignment is a document designed to amend a previously recorded assignment, and it is backed by the presumption of validity established by G.L. c. 183, 54B. Finally, even if Defendants’ imprecise allegation that the Corrective Assignment is invalid is accepted, any flaws in the document might only render it voidable, not void, and only the parties to the Corrective Assignment have standing to declare it void.

Plaintiff has established its prima facie case by demonstrating that it received a Foreclosure Deed to the property and that the Foreclosure Deed and Affidavit of Sale were registered, demonstrating compliance with statutory foreclosure requirements. Bailey v. Bank of New York, 460 Mass. 327, 334 (2011). According to the court, the Foreclosure Deed and Affidavit of Sale meet the criteria of G.L. c. 244, 15. It is “incumbent on a defendant to respond with his affidavit or acceptable alternative proving at least the existence of a real dispute of material fact” if these papers fit the standards of G.L. c. 244, 15. Hendricks v. Federal National Mortgage Assn., 463 Mass. 635, 642 (2012). The Defendants failed to meet their burden in this case. Defendants failed to produce any countervailing evidence, whether in the form of an affidavit or otherwise, demonstrating that a legitimate issue for trial exists. Defendants’ unsubstantiated complaint concerning the uncertain invalidity of the Corrective Assignment is meritless.

After considering the evidence presented in the summary judgment record, the court concludes that there are no genuine disputes about any material facts relating to the plaintiff’s superior right of possession. The court finds that the plaintiff obtained lawful title to the property following foreclosure and has a superior right to possession of the property over the Defendants’ request to possession.

  • Counterclaims of the Defendant

Counterclaims by defendants often question their treatment during the loan modification procedure. Defendants have not proved that they have a right to a modification as a threshold matter, as they are neither Borrowers nor Mortgagors. Even if Defendants have standing to claim for unfair and fraudulent activities throughout the modification process, such a claim cannot invalidate the foreclosure. As a result, such a claim will be dismissed without prejudice because it cannot undermine the plaintiff’s right to ownership.

  • Decisions

Plaintiff’s S.J. Motion is ALLOWED for Plaintiff on its claim for possession and on Defendants’ counterclaim for violation of G.L. c. 186, 22 for the reasons stated above. The remaining counterclaims of the defendants are dismissed without prejudice.

Plaintiff’s Use and Occupancy Claim

Plaintiff’s complaint seeks damages in an amount to be established at trial. Still, Plaintiff’s S.J. Motion does not demand use and occupancy from Defendants from the date of the foreclosure, and there was no evidence offered as to the property’s fair rental value. As a result, the plaintiff’s damages claim is dismissed without prejudice.

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