Certified Forensic Loan Auditors, LLC

  Upcoming Classes

Search CFLA's Article Archive:

Bergeron v. New York Community Bank

justia.com | July 31, 2015

Court: New Hampshire Supreme Court Docket: 2014-018 Opinion Date: July 24, 2015
Areas of Law: Real Estate & Property Law
Plaintiff Jillian Bergeron appeals a Superior Court order lifting a preliminary injunction on the foreclosure sale of her home and dismissing her case. Plaintiff executed a promissory note in favor of Drew Mortgage Associates, Inc. The Mortgage identified Drew Mortgage as the lender, plaintiff as the mortgagor, and Mortgage Electronic Registration Systems, Inc. (MERS) as the mortgagee. MERS later assigned the Mortgage to defendant New York Community Bank. The Note was also apparently transferred a number of times, because an allonge with a number of endorsements appears in the record. Defendant notified plaintiff of the foreclosure sale. On or about April 15, 2013, plaintiff filed a verified petition to enjoin the foreclosure sale and for an ex parte restraining order. She admitted falling behind on her payments, but challenged defendant’s authority to foreclose because “[i]t appears that at the very least, [the defendant] does not own the note.” Following denial of plaintiff’s loan modification application, defendant requested that the court lift the injunction and allow the foreclosure sale to proceed. The court did so, ruling, in relevant part, that defendant “has the authority to foreclose whether it actually holds the note or is merely acting as an agent for the entity which holds the note.” On appeal, plaintiff argued that the trial court erred in: (1) ruling that the entity foreclosing a mortgage need not hold both the mortgage and the note; (2) finding that plaintiff clearly intended that the Note and Mortgage be held by separate entities; and (3) failing to make the necessary finding that defendant was entitled to enforce the Note. These specific arguments, however, were largely subsumed within plaintiff’s more general contention that because “the mortgage and note are not severable,” a mortgagee must be entitled to enforce the promissory note in order to conduct a foreclosure sale pursuant to RSA chapter 479. The Supreme Court affirmed. Because the Mortgage evidenced an agency relationship between the lender (Drew Mortgage) and the mortgagee (MERS), and the Mortgage contemplated that both the lender and MERS could assign their interests, and plaintiff did not challenge the validity of the assignment of either the Note or the Mortgage, the Court concluded that defendant has the authority, as agent of the noteholder, to exercise the power of sale. Therefore, the Court held that the trial court did not err in lifting the injunction and dismissing the action. The Court did not address whether defendant could foreclose if the agency relationship was irregular or legitimately challenged by the plaintiff. We also need not decide whether, absent an agency relationship between the noteholder and the mortgage holder, a party who holds only the mortgage has the authority to foreclose.
Read more.


Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager


Back to Letters from the Editor Archive

CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

SEE BELOW- http://www.certifiedforensicloanauditors.com

Call us toll free at 888-758-2352


Bookmark and Share
Facebook Like us on Facebook
Twitter Follow us on Twitter
YouTube View our YouTube Videos
LinkedIn Connect to us on Linkedin
BBB Logo



Contact us or view our Sample Documents & Audits by completing the form below.

  • Reload
  • Should be Empty:

International Bloomberg Securitization Audits


DVD Sets Only $99


FREE Mortgage Fraud Analysis


Order Cutting-Edge Services Now


Quiet Title Packages from Licensed Attorneys


Affiliate Services


CFLA Sponsored Attorney Links


Take-Home Education Package