From: Charles Cox [mailto:firstname.lastname@example.org]
Sent: Monday, April 23, 2012 7:22 AM
To: Charles Cox
Subject: CA – One attorney’s response to April Charney’s posting & Court’s Memorandum Re Judicial Notice, Allonge, Authenticity of Note…
April is correct. For example, in the September 26, 2011 order in Mata v. Citimortgage, the court ruled that the putative assignee of a mortgage has the burden of proving it received a valid assignment–at least where the borrower can allege facts (as distinct from speculation) indicating otherwise; and that where the putative owner fails to meet that burden, the borrower states a claim for a declaration that the putative owner does not actually have an enforceable interest in the note.
With respect to the appropriate use of pooling and servicing agreements, it is true is that borrowers lack standing to enforce or attack their provisions. However, PSA nevertheless may be used as evidence regarding those sales and transfers when trying to prove (or allege the factual basis for) a claim that the putative owners of a particular mortgage never acquired an enforceable interest, because the sale or transfer was never perfected in accordance with the law of the state where the property is located and the terms of the PSA. Getting facts from pooling and servicing agreements and relying on them to allege or prove claims in a lawsuit is NOT an effort to enforce or attack the PSA.
Regarding the UCC, at least in some states (e.g., California), there are strong arguments that the state’s version of the UCC does not apply to real property mortgages on properties located in those states. On the other hand, the California Commercial Code may very well apply to sales and other transfers by and to Californians if the mortgaged property is located in another jurisdiction.