Tag Archives: assigned

Alabama Court Reverses Lower Court’s Decision Granting Summary Judgment to Foreclosing Entity

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The court in deciding Sturdivant v. BAC Home Loan Servicing, LP, 2013 Ala. Civ. App. (Ala. Civ. App., 2013) reversed the lower court’s ruling that granted summary judgment to a foreclosing entity with respect to its complaint in ejectment against a mortgagor under Ala. Code § 6-6-280(b).

The court’s decision was based on the fact that the foreclosing entity presented no evidence that it was either the assignee of the mortgage or the holder of the note at the time it foreclosed, it failed to present a prima facie case that it had the authority to foreclose and, thus, had valid title to or the right to possess the property–one of the elements of its claim in ejectment.

Hawaii Court Holds that Debtor had Standing to Enforce Note and Mortgage Under Haw. Rev. Stat. § 490:3-301(ii) Even Though it was a Non-Holder

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The court in deciding 1250 Oceanside Partners v. Katcher, 2013 Bankr. (D. Haw. 2013) recommended that the district court enter a decree of foreclosure in favor of the debtor.

The debtor in possession of 1250 Oceanside Partners sought to enforce a promissory note and foreclose a mortgage made by defendants, the Katchers. Oceanside sought summary judgment, the Katchers argued that the court lacked jurisdiction, that Oceanside was not entitled to foreclose, and that if it was entitled to foreclose, it was not entitled to a deficiency judgment.

The court found that there was no dispute as to any material fact and that Oceanside was entitled to foreclose on the property, but it was not entitled to a deficiency judgment against the Katchers at this stage in the litigation.

The court held that the debtor had standing to enforce the note and mortgage under Haw. Rev. Stat. § 490:3-301(ii) even though it was a non-holder, as it was in possession of the note and had the rights of a holder. The court also found that the mortgagors’ defenses to foreclosure were based entirely on debtor’s failure to develop a project as the purchase contract required, but the terms of the purchase contract provided that the mortgagors’ claims against debtor would be decided separately from debtor’s foreclosure claims. Moreover, the debtor’s claim for a deficiency judgment related to monetary damages or costs and thus, was subject to arbitration under the agreement.