what do you do when they say you can't challernge the assignment?
Kingsman Funding
Many borrowers are cut off at the knees when they begin to try to show anything wrong with the assignments of their trust deed with the abundance of case law that the mortgagor does not have standing to challenge the validity of the assignment of the security deed.
Whether this is what you are doing depends how you put your argument in the beginning. From a case we are involved in we see how this looks in defending your actions on appeal:
McKethan alleges that she requested documents from GSLS which purportedly showed that the assignment of the security deed was invalid. McKethan, however, does not have standing to challenge the validity of the assignment of the security deed. See Bank of America, N A. v. Johnson, 299 Ga. 861, 863 (2) (792SE2d 704) (2016) ("[D]ebtors generally lack standing to challenge the assignment of their security deeds. ").
Accordingly, as none of the foregone discovery would have added anything to McKethan's claims, Mckethan is not entitled to a reversal of the trial court's summary judgment order on this basis.
On page 4 the trial Court had opined in its order, the same thing:
A mortgagor lacks standing to challenge the validity of an assignment. Larose 1·.Bank of America, 321 Ga.App. 465, 467, 740 S.E.2cl 882, 884 (20 I 3) (borrower lacked standing to challenge assignment from t-.1!ERS to the foreclosing entity); Haynes v. Mctiat!a Raymer. LLC 793 F.3cl 1246. 125 I ( I l 1h Cir. Fla. 2015); Montgomery ,·. Bank of America, 321 Ga.App. 343, 345, 740 S.E.2d 434, 437-438 (2013).
The trial court and this Court seems to have failed to understand courts have recognized that the comprehensive foreclosure scheme does not permit a general challenge to the authority of an entity to foreclose on a deed of trust, absent a specific factual basis that demonstrates no authority.
Without question, Plaintiff’s case more than showed a specific factual basis that demonstrates no authority to foreclose on this security deed by Defendant and those acting in its behalf, which according to case law here cited:
See Hinojosa v. Wells Fargo Bank, 2012 U.S. Dist. LEXIS 114001, *8-*9 (N.D. Cal. Aug. 13, 2012); Mueller v. Bank of Am., N.A., 2012 U.S. Dist. LEXIS 107684, *25 (S.D. Cal. Aug. 1, 2012); Visendi v. Bank of Am. Corp., 2012 U.S. Dist. LEXIS 87036, *9 n.4 (E.D. Cal. June 21, 2012); Brown v. U.S. Bancorp., 2012 U.S. Dist. LEXIS 26226, *8 (C.D. Cal. Feb. 27, 2012); Siliga, 219 Cal.App.4th at 82-85; Jenkins v. JPMorgan Chase Bank, N.A., 216 Cal.App.4th 497, 512-13 (2013); Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149, 1154-55 (2011).
Is all that was necessary to permit a general challenge to the authority of an entity to foreclose on a deed of trust.
Further, there was abundance of case law from sister jurisdictions to support this position as well,
MEMORANDUM OF FACT AND LAW IN SUPPORT
We showed that. Then:
Even so, Appellant, does not bring this cause of action seeking invalidation of this assignment as an interloping third party claiming any rights of interest in the contract between the assignee and assignor as abundant case law has ruled she does not have to ‘challenge the validity of the assignment of the security deed.’
First, a homeowner need not assert standing to challenge the validity of an assignment.
The borrower is contractually obligated to the lender and/or their successors under the mortgage contract to defend generally the title to the Property against all claims and demands. This is seen in the borrower's Security Deed paragraph entitled “Borrower Covenants”, to which the lender and its successors is also a party which states :
“Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record.”
Regardless which of the assignees or assignors is the perpetrator or the victim of a void or invalid assignment the borrower has obligated herself to defend whoever is determined to be the damaged party and more importantly the property itself ….. against all claims and demands, subject to any encumbrances of record.” to prevent any invalid claim on rights to the property from being effected which is exactly what Plaintiff is doing in this cause of action and therefore has a contractual right and obligation to do so as party to the Security Deed the rights to which is what is being transferred in these assignments.
There is an abundance of case law supporting this position among which are:
Saldivar (Texas Bankruptcy Court, Case No. 11-10689; Harrison v. Leach, KY 2010; Wells Fargo, N.A., as Trustee for ABFC 2006-OPTS3 Trust, ABFC Asset-Backed Certificates, Series 2006-OPTS3 v. Rotimi Erobobo et al, 2013 NY Slip Op 50675(Sup. Ct., Kings County 2013; CitiGroup Global Markets Realty Corp. v, Randolph Bowling, 25 Misc 3d 1244(A), 906 N.Y.S2d 778 (Sup. Ct., Kings County 2009); Wells Fargo Bank N.A. v. Marchione, 2009 NY Slip Op 7624 (2d Dept 2009).
Secondly, even if the above were NOT true, it is indisputable Appellant IS a party to the loan contract and the security deed made with the lender, which contractual arrangement of rights and obligations between the parties carries over to be equally binding between the Appellant and any party who may be a successor or assignee of the original lender to the Security Deed wherein she granted title in trust to the lender AND any successors or assigns of them.
Without question, it is the Borrower-Grantor’s right to challenge any action by any supposed lawful holder of the Security Deed to enforce it against the borrower’s property concerning their right to take such action. Which is exactly what the Appellant is doing on these issues in her suit. She is not legally ‘challenging the assignment of the security deed.’ LEGALLY, she is challenging the alleged holder of the security deed’s RIGHT TO FORECLOSE THE PROPERTY THAT IS THE DIRECT SUBJECT OF THE SECURITY DEED AND CONTRACT BETWEEN THEM TO WHICH APPELLANT IS A PARTY and possesses legally all the rights of a party to a contract.
There is no question but that the borrower who has suffered loss at the hands of someone
who has no right to enforce the contract she is bound by has standing in equity to sue over the issue of their lack of proper ownership of these rights. She is not challenging the validity of the assignment as a party to the assignment but as a party to her own loan contract to which her property is the subject of the contract, she being damaged in the loss of her property that is the subject of the contract between her and the party damaging her who does not hold a legally valid right to enforce the loan and Plaintiff has an absolute right to challenge and to prove the lack of her loan’s ownership by a Defendant as a basis to sue them for such action. And that is what she is doing.
And this Court cannot allow the rights of a property owner to defend their property against foreclosure by an alleged party to their contract with them who does not legally hold those rights to be ‘pigeon holed’ out of existence by law that is wholy inapplicable intended to apply to interloping third parties who may seek to interject themselves claiming rights of interest in a contract between an assignee and assignor which rights they do not have.
The trial court and this Court has erred in its understanding of the facts and the law of the case to apply this argument, intended for interloping third parties seeking to interject themselves into rights of interest in a contract between an assignee and assignor, to the property owner themselves who have not only a right as a party to their own loan contract to defend the property against those who do not hold an actual right under law to take it , but also a contractual obligation under that same contract to defend the property against those who do not hold such right.
The Appellant DOES have a right as a party to their own loan contract to defend the property against those who do not hold an actual right under law to take it , AND a contractual obligation under that same contract to defend the property against those who do not hold such right. IT IS IRRELAVANT WHAT THE EVIDENCE TO SUPPORT THAT CLAIM MAY BE!
This is the way it should be presented in the beginning so your rights are preserved, Dr Weatherly
On another very important subject let me add something.
Most people don't understand this, but God was in Christ paying for all our sins on the cross and its over and done and finished and He's not angry with us about anything any more.
The Bible says, He is for us, not against us.
He died in our place to purchase us for Himself and if you'll give in to Him, there's nothing He won't be able to do in your life.
I know, I have been with Him for 41 years.
And when we finally leave this world, we'll live with Him forever,
if we belong to Him.
If you need to think about that or you have someone in mind that does, I'll be glad to talk with them. My number again was 662-489-6554. I just wanted you to know that.