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Wood v. Germann

Supreme Court of Nevada

August 7, 2014

DONNA WOOD, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DANNY WOOD, Appellant,
v.
KEN GERMANN; MICHAEL LINTON; MERIDIAN FORECLOSURE SERVICE, INC., A FOREIGN CORPORATION; AND INDYMAC MORTGAGE SERVICES, Respondents

Appeal from a district court order denying a petition for judicial review in a Foreclosure Mediation Program matter. Eighth Judicial District Court, Clark County; Kathleen E. Delaney, Judge.

Affirmed.

Brandon L. Phillips, Attorney at Law, PLLC, Las Vegas, for Appellant.

Brooks Hubley LLP and Michael R. Brooks and Jeffrey J. Todd, Las Vegas, for Respondents.

BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.

OPINION

PER CURIAM:

In this appeal, we examine the legal effect of a loan assignment from a homeowner's original lender to a subsequent purchaser when that assignment violates the terms of the original lender and subsequent purchaser's Pooling and Servicing Agreement (PSA). In particular, we consider whether a loan assignment that is executed after the PSA's " closing date" renders the assignment void and ineffective to transfer ownership of the homeowner's loan. We conclude that a post-closing-date loan assignment does not render the assignment void, but merely voidable, and that a homeowner therefore lacks standing to rely on the timing of the assignment as a basis for challenging the subsequent purchaser's authority to enforce the loan. We therefore affirm the district court's denial of appellant's petition for judicial review.

FACTS

In conjunction with obtaining a 2004 home loan from IndyMac Bank, F.S.B., appellant

Page 860

Danny Wood [1] executed a promissory note and deed of trust in favor of IndyMac F.S.B. The deed of trust indicated that IndyMac F.S.B. was appointing Mortgage Electronic Registration Systems, Inc. (MERS), as the legal beneficiary of the deed of trust. See Edelstein v. Bank of N.Y. Mellon, 128 Nev. __, __, 286 P.3d 249, 256-57 (2012) (explaining this practice and considering its legal implications). Shortly thereafter, IndyMac F.S.B. contracted to sell appellant's loan and others to Deutsche Bank National Trust Company, who, in turn, was to maintain ownership of these loans as the trustee for investors of a securitization trust. See BlackRock Fin. Mgmt. Inc. v. Segregated Account of Ambac Assurance Corp., 673 F.3d 169, 173 (2d Cir. 2012) (summarizing the process of loan securitization); Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1039 (9th Cir. 2011) (same). IndyMac F.S.B.'s and Deutsche Bank's respective obligations were spelled out in a PSA. As relevant to this appeal, the PSA required IndyMac F.S.B. to transfer all subject loans into the trust by a September 2004 " closing date" and provided that IndyMac F.S.B. would retain the servicing rights to the transferred loans.

Appellant defaulted on his loan and elected to participate in Nevada's Foreclosure Mediation Program (FMP) in 2012. Appellant, who was not represented by counsel, attended mediation with respondent IndyMac Mortgage Services, who appeared as Deutsche Bank's loan servicer and representative.[2] Among other documents, IndyMac Mortgage Services produced certified copies of appellant's original promissory note that IndyMac F.S.B. had endorsed in blank, appellant's deed of trust, and an assignment from MERS purporting to assign appellant's deed of trust and promissory note to Deutsche Bank in January 2012. The mediation concluded unsuccessfully, with the mediator noting summarily that appellant disputed whether IndyMac Mortgage Services had complied with the FMP's document-production requirements.

Appellant, then represented by counsel, filed a petition for judicial review in district court. Appellant argued that his loan had been improperly securitized and that, consequently, IndyMac Mortgage Services had failed to establish that Deutsche Bank owned his note and held the beneficial interest in his deed of trust. Specifically, according to appellant, because the terms of the PSA required appellant's original lender to transfer his loan to Deutsche Bank no later than the PSA's September 2004 closing date, the January 2012 MERS assignment necessarily violated ...


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