Summary Judgment in Complex Mortgage Foreclosure Proceeding

Obtained summary judgment in favor of our client, a large mortgage lender, in a complex mortgage foreclosure proceeding in Berks County, Pennsylvania. The borrower challenged our client's standing to foreclose, arguing that it could not prove standing since it did not produce the original promissory note that had been signed over to it. In addition, the borrower contended that the foreclosure was improper because the assignment of the mortgage to our client was signed by a person purporting to be a representative of the prior mortgagee, MERS, when, in fact, she was really an employee of our client, and also that our client violated the National Mortgage Settlement and the directives under the federal Home Affordable Modification Program by failing to consider loss-mitigation alternatives to foreclosure.

Although the borrower cited authority supporting its standing argument, the defense was able to distinguish the cases, arguing that, unlike in those matters, the borrower had produced absolutely no evidence to create an issue of fact as to whether our client held her promissory note. The defense also demonstrated that, although the assignment of the mortgage to our client was actually signed by our client's own employee, the employee was also authorized by corporate resolution to execute such assignments on behalf of MERS. The defense also argued that although violation of the National Mortgage Settlement and Home Affordable Modification Program directives can be an equitable defense to a "quick foreclosure," that only applies when the lender makes no effort to explore alternatives to foreclosure, and it was demonstrated to the court that our client had actually worked with the borrower for years in an effort to avoid foreclosure. The judge signed the summary judgment order from the bench following the oral argument.