Saturday, May 10, 2014

Pro se appellants win appeal

Acuff v. Wells Fargo Bank, 2012-CA-001221-MR, May 9, 2014

This is an appeal from summary judgment in favor of Wells Fargo Bank in a foreclosure action. The pro se debtor defendants questioned Wells Fargo's standing to sue as an assignee of the mortgage using the Mortgage Electronic Registration System (MERS). An assignment from MERS to Wells Fargo had been recorded with the Kenton County Clerk, about a month after the foreclosure action was commenced.

The complaint for foreclosure was filed October 2, 2010;
The mortgage assignment was executed on October 26, 2010, and;
The assignment was recorded on November 4, 2010.

The main factual issue, however, revolved around Wells Fargo's ownership of the promissory note. It was determined that the original promissory note had been endorsed in blank, it was a bearer instrument and as such, Wells Fargo's possession of the original note was sufficient to establish ownership and standing to sue.

However, the only evidence offered by Wells Fargo was a 'photocopy' (more likely a scanned image) of the original promissory note, and not the note itself. The court held this to be insufficient to conclusively resolve the issue of fact and to meet the high standards for summary judgment.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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This is not legal advice and I am not a lawyer.

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