Standing to Challenge the Validity of Assignments

Some of you were involved in Foreclosure Hell, back when the 6th Circuit ruled on Livonia Prop. Holdings, L.L.C. v. 12840–12976 Farmington Rd. Holdings, L.L.C., 717 F.Supp.2d 724, 736 (E.D.Mich.2010), aff’d, 399 Fed.Appx. 97 (6th Cir.2010)).  That was the case that began citing that the borrowers lack standing to question the validity of the loan assignments.  The 6th Circuit has thought about their ruling for a long time, and has seen that the bank’s attorneys, just like most of the courts, have used the ruling in Livonia Prop Holdings in order to allow the use of robo-signed, fictional, illegally created assignments, in order to foreclose on many, many properties.:

“The district court found that the Plaintiffs do not have standing to challenge the terms of the 2011 assignment because neither Plaintiff is a party nor third-party beneficiary to the assignment. R. 50 (D. Ct. Am. Op. at 11–12) (Page ID # 935–36)”.  DAGS II, LLC and G2BK, LLC. v. HUNTINGTON NATIONAL BANK and Fourteen Corp,  616 Fed.Appx. 830.  (This case was not selected for publication in West’s Federal Reporter.  The Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 6th Cir. Rule 32.1).

“The cases cited by the district court support the general proposition that a third party may not challenge the validity of an assignment. See id. (citing Woods v. Ayres, 39 Mich. 345 (1878); Bowles v. Oakman, 246 Mich. 674, 225 N.W. 613 (1929); Livonia Prop. Holdings, L.L.C. v. 12840–12976 Farmington Rd. Holdings, L.L.C., 717 F.Supp.2d 724, 736 (E.D.Mich.2010), aff’d, 399 Fed.Appx. 97 (6th Cir.2010)). As the Michigan Supreme Court explained in Bowles, “[t]he maker of a promissory note cannot, in an action brought against him by the indorsee or transferee thereof, litigate questions that can properly arise only between the holder and his immediate indorser.” Bowles, 225 N.W. at 614 (quoting Gamel v. Hynds, 34 Okla. 388, 125 P. 1115, 1116 (1912)); see also  *836 Pashak v. Interstate Highway Const., Inc., No. 189886, 1998 WL 2001203, at *1 (Mich.Ct.App. Mar. 20, 1998) (“Although IHC challenges the validity of the assignment as between [assignor] and [assignees], we find that it lacks standing to do so where the parties to the assignment … do not contest its validity.”).

We have since cautioned, however, “that Livonia ‘s statement on standing should not be read broadly to preclude all borrowers from challenging the validity of mortgage assignments …” Carmack v. Bank of New York Mellon, 534 Fed.Appx. 508, 511–12 (6th Cir.2013). Rather, “[a]n obligor ‘may assert as a defense any matter which renders the assignment absolutely invalid or ineffective, or void.’ ” Id. (quoting Livonia, 399 Fed.Appx. at 102) (internal quotation marks omitted). “These defenses include nonassignability of the instrument, assignee’s lack of title, and a prior revocation of the assignment.” Livonia, 399 Fed.Appx. at 102. “Obligors have standing to raise these claims because they cannot otherwise protect themselves from having to pay the same debt twice.” Id. Based on this, a borrower does not lack standing to challenge an assignment “where the borrower has a valid claim that he will face double liability.” Carmack, 534 Fed.Appx. at 512; Smith v. Litton Loan Servicing, LP, 517 Fed.Appx. 395, 398 (6th Cir.2013) (“[A]s explained in Livonia, the purpose of an obligor’s defenses [to an assignment to which the obligor is not a party] is to avoid the risk of paying the same debt twice.”).





Recently, the 6th Circuit Court of Appeals has stated that

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