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Monday, September 29, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Bryan L. Good v. Wells Fargo Bank, NA., a 14-page opinion, Judge Barnes writes:

Bryan Good appeals the trial court’s grant of partial summary judgment in favor of Wells Fargo Bank, N.A., (“Wells Fargo”) and the subsequent judgment of foreclosure. We reverse and remand.

Good raises seven issues. We address the dispositive issue, which we restate as whether the trial court properly granted partial summary judgment for Wells Fargo on the basis that Wells Fargo was entitled to enforce the promissory note executed by Good. * * *

Wells Fargo initially asserted that it had possession of the Note and was either the original payee or the Note had been duly endorsed. Good responded, challenging Wells Fargo’s status as holder because the Note designated by Wells Fargo was not endorsed. In its reply, Wells Fargo asserted that, because the Note was an electronic note, “delivery, possession, and endorsement of an electronic promissory note are not required pursuant to federal statute.” * * *

Wells Fargo is correct that, pursuant to §7021(d), a person having control of a transferable record, which includes the Note, is the holder for purposes of the UCC and that delivery, possession, and endorsement are not required. According to §7021(b), to show it controlled the note, Wells Fargo was required to designate evidence that a system employed for evidencing the transfer of interests in the Note reliably established Wells Fargo as the person to whom the Note was transferred. A system that satisfies the control requirement is described in §7021(c). Wells Fargo contends that its “possession of the Note and the recitation of its electronic record keeping procedures in the Certificate evidences Well Fargo’s control of the Note . . . .” We disagree. * * *

[T]he Certificate does not suggest that Wells Fargo maintains the single authoritative copy of the Note as described in §7021(c)(1). * * *

Pursuant to statute, upon Good’s request, Wells Fargo was required to provide “reasonable proof” that it was in control of the Note. 15 U.S.C. §7021(f). “Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.” Id. Although Good repeatedly requested such proof, Wells Fargo did not provide any evidence documenting the transfer or assignment of the Note from Synergy to either Wells Fargo or Fannie Mae. Thus, Wells Fargo did not demonstrate it controlled the Note by showing that a system employed for evidencing the transfer of interests in the Note reliably established that the Note had been transferred to Wells Fargo. See 15 U.S.C. §7021(b).

Because Wells Fargo did not establish that it controlled the Note as described in §7021, it did not establish that it was the person entitled to enforce the Note as the holder for purposes of the UCC. See 15 U.S.C. §7021(d); I.C. § 26-1-3.1-301(1). Thus, partial summary judgment for Wells Fargo on this issue was improper. * * *

Wells Fargo has not shown that it controls the Note for purposes of §7021(b) and, accordingly, has not established its status as holder for purposes of the UCC. Because Wells Fargo has not established that it was entitled to enforce the Note as its holder, the trial court’s grant of summary judgment was improper and the resulting judgment must be set aside. We reverse and remand.

NFP civil opinions today (4):

In the Matter of the Termination of the Parent-Child Relationship of: L.S. & S.S., Minor Children, and T.S., Father v. The Indiana Department of Child Services (NFP)

In the Matter of the Involuntary Termination of Parent-Child Relationship of G.M. and T.W., Minor Children and Their Father, G.M., G.M. (Father) v. Indiana Department of Child Services et al. (NFP)

Shavaughn Carlos Wilson-El v. T. Esteb, et al. (NFP)

The Estate of Timothy J. Bartruff and All Parties of Interest of Public Record v Dennis C. Hain and Judith A. Hain (NFP)

NFP criminal opinions today (6):

Alvin Kim Poe v. State of Indiana (NFP)

Ronald Wayne Shewmaker v. State of Indiana (NFP)

Corey Hamersley v. State of Indiana (NFP)

Larry Warren v. State of Indiana (NFP)

Charles M. Barlow v. State of Indiana (NFP)

Jeremy Richard Roberts v. State of Indiana (NFP)

Posted by Marcia Oddi on September 29, 2014 11:57 AM
Posted to Ind. App.Ct. Decisions