Wednesday, December 21, 2011

Maryland's Court of Appeals decides Anderson v. Burson, and leaves the lender "standing."

On December 20, 2011, the Maryland Court of Appeals deftly greased the skids for continued enforcement of mortgage notes and deeds of trust in the case Anderson v. Burson. Judge Harrell has poured oil over the troubled waters created by repeated challanges to lender standing to enforce debt instruments, as described in my prior post on this case.

The anlysis is elegantly simple, dealing with the Uniform Commercial Code and the differences between a "holder" and a "transferee."  More importantly, the Court gives yearning litigation lawyers a standard analysis for establishing the "standing" of their lender clients. In practice, the standard will impose a large investigative burden on the lender.  But it is perfectly reasonable for any entity seeking relief from the court to do the work required to establish it's particular entitlement, n'est pas? Take a walk through the decision, after the jump.

Tuesday, December 6, 2011

Masssachussetts takes on the Medusa

The Massachussetts Attorney General has cast herself as Perseus, hoping to slay the many headed banking Medusa that allegedly has been foreclosing upon Massachussetts citizens in violation of state recording and foreclosure laws. The December 1, 2010 Complaint alleges that lenders have sued to foreclose while falsely representing themselves as the "holder" of the indebtedness. The Complaint recites examples where the foreclosing lender did not take actual assignment of the mortgage until after the cases were filed, after important orders and affidavits were filed, or even after the foreclosure process was final. This is alleged to be a deceptive and unfair trade practice.
But wait, there's more!

Unlike Maryland, the Commonwealth of Massachussetts requires that every transaction involving real property, including assignments of interests in the recorded liens, must hit the land records. Several lenders are being sued for deceptive and unfair trade practices for keeping MERS related assignments off record.

WWMD (what would Maryland do)?  IHTS (it's hard to say). Read more after the jump.