BETH FINDSON, ESQ., FINDSON LAW, DISCUSSES HER FRIEND'S, ATTORNEY BARBARA FORDE'S DECISION TO FILE A SPECIAL ACTION IN STEINBERGER v ONEWEST. THIS IS A SPECIAL CASE, WHICH BETH EXPLAINS BEAUTIFULLY. A MUST READ FOR ALL HOMEOWNERS FACING FORECLOSURE.

FINDSEN LAW

representing homeowners

Arizona Appellate Court Clears Up Confusion in Foreclosure Cases: Steinberger v OneWest

posted in Arizona, Foreclosure by findsenlaw

Basic fairness prevails in the Arizona Appellate Court’s new decision in Steinberger v. OneWest Bank, et. al.  Attorney Barbara Forde brought this action for her client Steinberger as a special action after the bulk of her case was dismissed by the trial court.  A special action can be brought when speediness is essential, and there is no other adequate form of relief.  Because she still had a few existing claims against certain defendants in her underlying case, she could not appeal by ordinary route, without waiting until the end of that case, which would be too late.  So she brought this special action.  And it sat and sat, much longer than the ordinary special action.  But the opinion was worth the wait.

Here’s the full opinion.

The case regarded pleading standards for a homeowner facing foreclosure.  The court was answering the question of whether there are any circumstances under which a person facing foreclosure may challenge the authority of the party seeking foreclosure?  If so, what are the requirements for the Forecloser to establish its authority?  Finally, if a lender offers to modify a loan, must it act reasonably in processing the modification?

The court does a good job of explaining the separate instruments of the note and deed of trust, and listing and describing the rights and responsibilities of the three entities involved in a deed of trust, the trustee, the trustor, and the beneficiary.

The court understood the problem of an assignment of an interest years after the interest has already been transferred.  If there is no interest to transfer, nothing transfers.  It’s as simple as that.

The court also does a good job of analyzing what the Arizona Supreme Court actually said in the oft-cited Hogan case.  The Hogan court did not say that one can never mention the authority of the beneficiary or the note holder in a lawsuit opposing foreclosure, or risk being swept into the dreaded “show me the note” category and summarily dismissed.  Rather, the Hogan court was concerned with the lack of affirmative allegations in the Hogan pleadings about how and why the beneficiary might lack authority, or might not be the beneficiary.

The Steinberger court also recognized that the point of listing securitization facts is to establish a timeline that may show that the transfers in a purported chain of title cannot be true, if the note was in fact transferred to a securitization trust by a set closing date.  This is relevant to the beneficiary’s claimed authority, not an attempt for the homeowner to be claiming rights or enforcement under the third party securitization documents.

Read the whole opinion; it is a worthwhile read.

Congratulations to my talented friend and colleague, attorney Barbara Forde.

Read Beth Findson's Article on her blog here.

Related articles

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• Arizona Appeals Court Reverses Direction: Dismissal of Borrower's Claims Reversed
• Big Bank FAIL: Judge Rules Foreclosure Unconstitutional
• Check out the dissent its a good one to use in opposing demur DENNIS RICKY HOLMES, Plaintiff and Appellant, v. HSBC BANK USA et al.,
• Unconscionable and Negligent Conduct in Loan Modification Practices
• The Foreclosure Process in America....Courts Transferring Ownership of America To Foreign Countries and Shadowy Foreign Entities...
• US Bank Antics versus Their Own Website
• The Case Against the Escrow Agent: Did Escrow Close on Mortgage Loan
• Attention Lawyers: Are Servicer Advances Arguably a Novation
• Beth Findsen Weighs in on Steinberger

MERS

NO STANDING: MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., APPELLANT, VS. SOUTHWEST HOMES OF ARKANSAS, APPELLEE dinsfla | May 1, 2010 at 9:37 am | Tags: ark. r. civ. p. 19(a), arkansas, bankruptcy, borrower, dinsfla, din_sfla, disclosure, foreclosure defense, foreclosure offense, fraud, Lender Liability, moers, mortgage electronic registration system, mortgage meltdown, predatory lending, rescission, securitization, trustee | Categories: MERS, case, foreclosure, foreclosure fraud | URL: http://wp.me/pOmck-Hp

    The Kansas appellate court noted that MERS received no funds and that the mortgage required the borrower to pay his monthly payments to the lender. just as in the case at hand, that the notice provisions of the mortgage “did not list MERS as an entity to contact upon default or foreclosure.” declaring that MERS did not have a “sort of substantial rights and interests” that had been found in a prior decision and noting that “a party with no beneficial interest is outside the realm of necessary parties,” the Kansas court concluded that “the failure to name and serve MERS as a defendant in a foreclosure action in which the lender of record has been served” was not such a fatal defect that the foreclosure judgment should be set aside. at 331, 192 P.3d at 181-82.

It is my opinion that the same holds true in the instant case. Here, Pulaski Mortgage, the lender for whom MERS served as nominee, was served in the foreclosure action. But, further, neither MERS’s holding of legal title, nor its status as nominee, demonstrates any interest that would have rendered it a necessary party pursuant to Ark. R. Civ. P. 19(a).

For these reasons, I concur that the circuit court’s order should be affirmed.

IMBER and WILLS, JJ., join.

NO STANDING! MERS v, Arkansas