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all categoriesFeaturedRecentPeopleAuthorsStudentsResearchersPublishersGovernment & NonprofitsBusinessesMusiciansArtists & DesignersTeachers+ all categoriesMost FollowedPopular..Sign Up Log In.. 1First Page Previous Page Next Page / 7Sections not available Zoom Out Zoom In Fullscreen Exit FullscreenSelect View Mode View ModeSlideshowScroll ...Readcast Add a Comment Embed & Share Reading should be social! Post a message on your social networks to let others k now what you're reading. Select the sites below and start sharing.Readcast this Document.. Login to Add a Comment.. Share & Embed.Add to Collections Download this Document for FreeAuto-hide: on In the Missouri Court of AppealsEastern District DIVISION FIVEROBERT BELLISTRI, ) No. ED91369)Respondents, )) Appeal from the Circuit Courtv. ) of Jefferson Co unty)OCWEN LOAN SERVICING, LLC, ) Honorable Mark T. Stoll) No. 06JE-CC00893Appel lant. )) FILED: March 3, 2009 IntroductionThe appellant, Ocwen Loan Servicing, L .L.C.1, (Ocwen) appeals from a judgmentof the Circuit Court of Jefferson County quieting title to real estate commonly known as1210 Airglades, Arnold, Missouri, 63010 (the property) in favor of Robert Bellistri. Bothparties filed motions fo r summary judgment, and the circuit court held that Ocwen lackedstanding to cont est Bellistris deed. For the following reasons, we affirm. FactsOn March 5, 2002, Glen Crouther purchased the property and executed apromissory note and a deed o f trust. BNC Mortgage Inc. (BNC) was the lender andpayee of the promissory note. In the deed of trust, Millsap, Singer & Dunn, P.C. was the1Ocwen Loan Servicing , L.L.C. refers to Ocwen Loan Servicing, L.L.C., servicer for Deutsche Bank Nati onal Trust Company, as Trustee for the registered holders of the CDC Mortgage Ca pital trust 2002-HE1, as successor in interest to MERS, Inc.1 trustee. The deed of trust, however, did not name BNC as the beneficiary, but in steadnames Mortgage Electronic Registration System (MERS), solely as BNCs nominee .The promissory note does not make any reference to MERS. The note and the deed of trust both require payments to be made to the lender, not MERS.During 2002, 2 003 and 2004, Crouther failed to pay taxes. At the second offeringdelinquent tax sale, Bellistri, the respondent, purchased the property and was issued acertifi cate of purchase on August 22, 2005. On May 12, 2006, Bellistri sent BNC anotice of redemption as required under the Jones Munger Act, Section 140.405 RSMo.(200 6).On September 19, 2006, the collector of revenue of Jefferson County, Missouri issued Bellistri a collectors deed. After the issuance of the collectors deed, MER S, asnominee for BNC, assigned the deed of trust to Ocwen on April 4, 2007. The assignmentof the deed of trust also contained language that this assignment also transferred any andall notes described in the deed of trust.Bellistri filed the instant action seeking to quiet title and eject Crouther from theproperty. Init ially, Bellistri named Crouther as a defendant and published notice for allother unknown persons with an interest in the property. Later, Bellistri filed a moti on toadd Ocwen as a necessary, if not indispensable party. The circuit court gra nted hismotion. Ocwen and Bellistri filed cross motions for summary judgment. Th e circuitcourt denied Ocwens motion and granted summary judgment in favor of Bell istri.Ocwen now appeals.2

Standard of ReviewWhether a motion for summary judgment should be granted is a q uestion of lawand our review is essentially de novo. ITT Commercial Finance Corp . v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summa ry judgment isproper where the movant establishes the absence of any genuine iss ue of material fact anda legal right to judgment. Id.at 378. We will review the record in the light mostfavorable to the party against whom judgment has been en tered. Facts set forth byaffidavit or otherwise in support are taken as true unl ess contradicted by the non-movingpartys response. Id.at 376. We will affirm the trial courts judgment if it is sustainableon any theory.Citibrook II, L.L.C. v. M organ s Foods of Missouri, Inc., 239 S.W.3d 631(Mo. App. E.D. 2007). Points on A ppeal On appeal, Ocwen argues that the trial court erred in entering summary jud gmentin favor of Bellistri because (1) Bellistri lost his interest in the proper ty by failing to sendMERS any notice pursuant to section 140.405; (2) the notice Bellistri sent to BNCmisrepresented the redemption period and was therefore ins ufficient; (3) summary judgment should have been entered in its favor because Be llistri failed to comply withsection 140.405; and (4) Ocwen had standing in this quiet title action because it was thenamed grantee on the assignment of the dee d of trust. DiscussionWe will address the issue of standing first, as it is a ju risdictional matterantecedent to the right to relief.Farmer v. Kinder , 89 S.W.3 d 447, 551 (Mo. banc 2002).3 Standing refers to a partys right to seek relief. I d.It requires that a party seeking relief have a legally cognizable interest in t he subject matter and that he has a threatened oractual injury. Eastern Missouri Laborers Dist. Council v. St. Louis County, 781 S.W.2d43, 46 (Mo. banc 1989). St anding requires the party to be sufficiently affected so as toensure a justiciab le controversy.Shannon v. Hines, 21 S.W.3d 839, 841 (Mo. App. E.D.1999). Therefo re, a party must have some actual, justiciable interest. Id.They musthave a recogn izable stake.Wahl v. Braun, 980 S.W.2d 322 (Mo. App. E.D. 1998). Lack of standin g cannot be waived and may be considered by the court sua sponte. Brock v.City o f St. Louis, 724 S.W.2d 721 (Mo. App. E.D. 1987). If a party seeking relief lack sstanding, the trial court does not have jurisdiction to grant the requested rel ief.Shannon,21 S.W.3d at 842.The Jones Munger Act, RSMo section 140.330, provide s that one who acquires acollectors deed may bring an action to quiet title, nami ng as defendants all parties whohave, or claim to have, or appear of record in th e county where such land or lot issituated, to have an interest in, or lien upon such lands or lots. Section 140.330. Here,Ocwen appears of record to have an int erest in the property because it is the namedgrantee on the assignment of the de ed of trust.While this section allows broad joinder of defendants, a named defen dant will notprevail unless the defendant has at least some interest in the prop erty.Scott v. Unknown Heirs of Solomon Garrison , 235 S.W.2d 372, 374 (Mo. 1951) . InScott , the plaintiff claimed title by virtue of a tax deed. The plaintiff b rought an action to quiet her title, andthe defendant claimed he was the owner o f the property. The defendant, however, failedto produce a recorded title. The d efendant also never had possession and paid no taxes4 on the property. He claimed he lost the deed, but had assumed a contract to pu rchase theproperty. The trial court found that the defendant had no right, title or interest to theproperty. On appeal, the defendant argued that the tax deed w as void because the tax salewas so grossly inadequate as to amount to fraud. Whi le the court agreed that the amountpaid was so grossly inadequate as to be const ructive fraud, they found that the defendantdid not have such an interest or clai m of right to the property in question to challengethe sufficiency of the plaint iffs deed. Id.Essentially, theScott court found that the defendant lacked standing to invalidatethe tax deed. The defendant lacked a legally cognizable interest i n the property, andtherefore he could not challenge the issuance of a collectors deed.The same is true in the instant case. While Ocwen is the recorded grantee o n theassignment of the deed of trust, it has no legally cognizable interest. Lac king such aninterest, Ocwen is not entitled to the relief it seeks, namely, to d ismiss Bellistris petitionand declare that the plaintiff has lost all interest in the real estate. Essentially, Ocwen isasking the court to quiet title in Crouth ers name.To seek this relief from the court, Ocwen must at least have an interest i n theproperty.Scott , 235 S.W.2d at 374;Thurmon v. Ludy, 914 S.W.2d 32, 34 (Mo.

App.E.D. 1995) On the assignment of the deed of trust, Ocwen is listed as the gr antee, asservicer for Deutsche Bank National Trust Company, as Trustee for the r egistered holdersof the CDC Mortgage Capital trust, 2002-HE1, Mortgage Pass-Thro ugh Certificates,Series 2002-HE1 (Deutsche Bank). We must turn to the law of mor tgages to understandOcwens interest.5 Generally, a mortgage loan consists of a promissory note and security instrum ent,usually a mortgage or a deed of trust, which secures payment on the note by giving thelender the ability to foreclose on the property. Typically, the same p erson holds both thenote and the deed of trust. In the event that the note and t he deed of trust are split, thenote, as a practical matter becomes unsecured. Re statement (Third) of Property(Mortgages) 5.4. Comment. The practical effect of sp litting the deed of trust from thepromissory note is to make it impossible for t he holder of the note to foreclose, unless theholder of the deed of trust is the agent of the holder of the note. Id.Without the agencyrelationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default becauseonly the holder of the note is entitled to payment of the underlying obligation. Id.T hemortgage loan became ineffectual when the note holder did not also hold the de ed of trust.When the holder of the promissory note assigns or transfers the note , the deed of trust is also transferred.George v. Surkamp, 76 S.W.2d 368, 371 (M o. 1934). Anassignment of the deed of trust separate from the note has no force. I d.Effectively, thenote and the deed of trust are inseparable, and when the promi ssory note is transferred, itvests in the transferee all the interest, rights, po wers and security conferred by the deedof trust upon the beneficiary therein and the payee in the notes.St. Louis Mut. Life Ins.Co. v. Walter , 46 S.W.2d 166, 17 0 (Mo. 1931).When it assigned the deed of trust, MERS attempted to transfer to O cwen thedeed of trust together with any and all notes and obligations therein des cribed or referredto, the debt respectively secured thereby and all sums of mone y due and to become due.6 7The record reflects that BNC was the holder of the promissory note. There is noevidence in the record or the pleadings that MERS held the promissory note or that BNCgave MERS the authority to transfer the promissory note. MERS could not transfer thepromissory note; therefore the language in the assignment of the de ed of trust purportingto transfer the promissory note is ineffective. Black v. A drian, 80 S.W.3d 909, 914-15(Mo. App. S.D. 2002) ("[A]ssignee of a deed of trust or a promissory note is vested withall interests, rights and powers possessed b y the assignor in the mortgaged property").MERS never held the promissory note, thus its assignment of the deed of trust to Ocwenseparate from the note had no f orce. See George, 76 S.W.2d at 371.St. Louis Mut. Life Ins. Co., 46 S.W.2d at 17 0.As Ocwen holds neither the promissory note, nor the deed of trust, Ocwen lacks alegally cognizable interest and lacks standing to seek relief from the trial c ourt. SeeScott , 235 S.W.2d at 374. The trial court was without jurisdiction to grant Ocwen itsrequested relief, and did not err in granting summary judgment in Bellistris favor.ConclusionOcwen lacked a legally cognizable interest in the pro perty, and therefore, it has nostanding to seek relief. We hereby affirm the jud gment of the circuit court of St. LouisCounty.______________________________Nann ette A. Baker, Chief JudgeGlenn A. Norton, J., and Kenneth M. Romines, J., concu r. Bellistri v Ocwen Loan Servicing Mo App 201003091 "MERS has no standing" Download this Document for FreePrintMobileCollectionsReport DocumentReport this document?Please tell us reason(s) for reporting this document Spam or junk Porn adult content Hateful or offensive If you are the copyright owner of this document and want to report it, please fo llow these directions to submit a copyright infringement notice. Report Cancel . .This is a private document. Info and Rating

Reads:2,407Uploaded:04/21/2010Category:Business/Law>Court FilingsRated:Copyright :Attribution Non-commercialhttp://stopforeclosurefraud.com/ When MERS assigned th e note to Ocwen, the note became unsecured and the deed of trust became worthles s . noteAURORAassignmentstandingholderlehmanjurisdictionMERSHersbeneficiary(more tag s)noteAURORAassignmentstandingholderlehmanjurisdictionMERSHersbeneficiarydeed of trustquiet titlemortgage electronic registration systembellistribellistri v ocw en loan servicingcase decisionsderivative mortgagebacked securitiesocwen loan se rvicingreal party in interestsplitting note and mortgage(fewer) .FollowDinSFLA.. Share & Embed Related Documents PreviousNext 10 p. 123 p. 5 p. 8 p. 6 p. 15 p. 15 p. 15 p. 6 p. 15 p. 17 p. 11 p. 15 p. 15 p. 15 p. 15 p. 15 p. 21 p. 13 p..More from this user PreviousNext 7 p. 12 p. 9 p. 2 p. 2 p. 4 p. 40 p. 24 p. 7 p. 14 p. 1 p. 4 p. 11 p. 21 p. 22 p. 28 p. 13 p. 42 p. 33 p. 4 p. 17 p. 19 p. 8 p. 18 p. 60 p..Add a Comment

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