Shack; JPM, Trustee Lacks Standing, Vacates Foreclosure

The true answer is that securitization is a process that is still on going and not an event.The Real Party in Interest (and the real amount of principal due, if any) is in a state of flux hidden by obscure, hidden or “confidential documentation.” Don’t make it your problem to unravel it. Use your strength to force THEM to prove their claim whether it is in a judicial or non-judicial proceeding.

Editor’s Comment: In case you haven’t noticed, this case, along with some others I’ve heard about but not received, closes the loop. The Pretender Lenders have now tried to use all the major parties and some of the minor parties in foreclosures and when tested have failed to prove standing. standing is a jurisdictional matter and it basically boils down to “You don’t belong here, you have no rights to enforce, you have no interest in this litigation, so get out of here and don’t come back.”

They tried MERS, Servicers, Foreclosure Specialty processors, Trustees, originating “lenders” and they come up empty. why because they are all intermediaries and as Judge Holloway put it, the note is not payable to them, the mortgage does not secure them, the obligation is not due to them and therefore they can’t proceed. In non-judicial states they get around this requirement unless the homeowner brings suit.

So who is the real party in interest? See the Fordham Law Review article posted on this blog more than two years ago “Will the Real Party in Interest Please Stand Up.”

The answer isn’t easy, but the strategy is very simple — don’t accept responsibility for the narrative or you will be taking on the burden of proof in THEIR case. They have the information and you don’t. The true answer is that securitization is a process that is still on going and not an event. The Real Party in Interest (and the real amount of principal due, if any) is in a state of flux hidden by obscure, hidden or “confidential documentation. Don’t make it your problem to unravel it. Use your strength to force THEM to prove their claim whether it is in a judicial or non-judicial proceeding.

The real reason for them NOT simply bringing in the investors who at least WERE parties in interest is multifold:

• The meeting of the investor with the borrower will result in comparing notes and the fact that not all the money advanced by investors was actually invested in mortgages will be “problematic” for the investment bankers who put this scheme together.
• The meeting of the investor and borrower could result in an alliance in litigation in which the shell game would be impossible.
• The meeting of the investor and the borrower could result in a settlement that cuts the servicers and other intermediaries out of the gravy train of servicing fees, foreclosures with rigged bids, etc.
• The conflict of interest between the intermediaries and the investors might become evident, and lead to further litigation both from the investors and the SEC, state attorneys general and Department of Justice.
• The investment vehicle (the “trust” or Special Purpose Vehicle) might have been dissolved with the investors paid off and/or with the “assets” resecuritized into a new BBB rated vehicle. This could lead to the nuclear question: what if any, is the balance due in principal on this OBLIGATION. Warning: If you let the narrative shift to the NOTE (which is merely evidence of the obligation) you risk being entrapped by the simple question “Did you make your payments under this note?” This immediately puts you on the defensive BEFORE they have established THEIR case. Since THEY are the party seeking affirmative relief, THEY should establish the foundation first.
  
• And the last thing that comes to my mind is the last thing anyone wants to hear — was this obligation satisfied in whole or in part by third party payments through credit enhancements or federal bailout?
  

Hon. Arthur M. Schack does it again!

JP Morgan Chase Bank, N.A. v George

2010 NY Slip Op 50786(U)
Decided on May 4, 2010

Supreme Court, Kings County
Schack, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2010
Supreme Court, Kings County

JP Morgan Chase Bank, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, Plaintiff,

against

Gertrude George, IVY MAY JOHNSON, GMAC MORTGAGE CORPORATION, DANIEL S. PERLMAN, et. al., Defendants.

10865/06

Plaintiff– JP Morgan Chase Bank
Steven J Baum, PC
Amherst NY

Defendant– Gertrude George
Edward Roberts, Esq.
Brooklyn NY

Defendant– Ivy Mae Johnson
Precious L. Williams, Esq.
Brooklyn NY

Arthur M. Schack, J.

_______________________________________________

Accordingly, it is
ORDERED, that the order to show cause of defendant IVY MAE JOHNSON, to vacate the January 16, 2008 judgment of foreclosure and sale for the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings), pursuant to CPLR Rule 5015 (a) (4), because plaintiff, JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, lacked standing to commence the instant action and thus, the Court never had jurisdiction, is granted; and it is further

ORDERED, the instant complaint of plaintiff JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4 for the foreclosure on the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings) is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

Hon. Arthur M. SchackJ. S. C..

Tags: Arthur M. SchackJ. S. C, Fordham Law Review, George, GMAC MORTGAGE CORPORATION, JPM, lender, loan originator, MERS, NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, non-judicial, originator, Precious L. Williams, REAL PARTY IN INTEREST, SERIES 2004-AR4, servicer, shack, standing, Steven J Baum, trustee, vacate, Vacate foreclosure judgment
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