Miroslav Zecevic v. US Bank National Association, as Trustee, & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0336, Miroslav Zecevic v. US Bank
National Association, as Trustee, & a., the court on September
17, 2015, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
plaintiff, Miroslav Zecevic, appeals the Superior Court’s (O’Neill, J.) grant of
summary judgment to the defendant, US Bank National Association (US Bank),
as trustee of Residential Asset Securities Association Series 2006 EMX7
(Trust), allowing it to foreclose on Zecevic’s property. On appeal, Zecevic
argues that the trial court erred by ruling that: (1) he lacked standing to
enforce the terms of the Pooling and Service Agreement (PSA) of the Trust; (2)
there was no genuine issue of material fact regarding an agent’s authority to
indorse the promissory note (Note) consistent with the terms of the PSA; (3) the
indorsements of the Note were proper and timely despite the fact that it was
not indorsed in accordance with the PSA; and (4) US Bank “need not show” the
precise date on which the Note was indorsed to foreclose on the property. We
affirm.

The following facts are drawn from the trial court’s order and the record,
or are otherwise undisputed. In 2006, Zecevic purchased a home located in
Laconia. At that time, he executed the Note, secured by a mortgage on the
home, in favor of Mortgage Lenders Network USA, Inc. d/b/a Lenders Network
(MLN). Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for
MLN, was granted the mortgage. Afterward, through a series of indorsements
that are the subject of this litigation, the Note was indorsed to be paid to US
Bank. In July 2009, MERS assigned the mortgage to US Bank. In May 2010,
after Zecevic had fallen behind on his loan payments, US Bank sent a notice of
foreclosure sale to Zecevic. Zecevic subsequently filed a petition, against US
Bank and several others, seeking injunctive and declaratory relief and
damages. Among other things, Zecevic argued that US Bank had no authority
to foreclose on the property.

US Bank moved for summary judgment, which the trial court initially
denied, stating that US Bank had failed to produce the original Note. At the
hearing on US Bank’s motion for reconsideration, US Bank produced the
original Note. However, Zecevic disputed the indorsements of the Note to US
Bank, and the trial court found that genuine issues of material fact existed
concerning these indorsements. After US Bank filed a renewed motion for
summary judgment, the trial court determined that US Bank properly held
both the Note and mortgage and, therefore, had authority to foreclose.
Accordingly, the trial court granted summary judgment in US Bank’s favor.
This appeal followed.

In reviewing the trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party. Camire v. Gunstock Area
Comm’n, 166 N.H. 374, 376 (2014). If our review of that evidence discloses no
genuine issue of material fact, and if the moving party is entitled to judgment
as a matter of law, we will affirm the grant of summary judgment. Id. We
review the trial court’s application of the law to the facts de novo. Id.

We begin with Zecevic’s argument that the trial court erred when it
determined that he lacked standing to challenge US Bank’s compliance with
the PSA. Zecevic argues that under New York law, which governs the PSA, the
failure of a trustee to comply with the PSA voids the transfer. Therefore, he
argues, because the assignments are void, US Bank does not hold the Note or
mortgage and has no authority to foreclose.

We recently rejected this identical argument. Pike v. Deutsche Bank
Trust Co., 167 N.H. ___, ___ (decided July 15, 2015). In Pike, we stated:

[W]e join those courts that have concluded that, under New York
law, an action that violates the term of a trust agreement . . .
renders the transaction voidable at the election of either party to
the agreement, and that a non-party to the PSA, such as the
petitioner in this case, does not have standing to challenge such a
transaction.

Id. (quotations omitted). Here, Zecevic, like the petitioner in Pike, is not a party
to the PSA nor has he argued that he is a third-party beneficiary. See id.
Consequently, we conclude that the trial court did not err when it determined
that he lacked standing to challenge US Bank’s compliance with the PSA.
Given this conclusion, we need not address his arguments that the
assignments violated the PSA.

Finally, Zecevic argues that US Bank cannot “enforce the original note if
[it] does not also provide testimony as to the specific date the note was
indorsed to [it].” Zecevic does not cite any provision of the Uniform Commercial
Code, or other statute, in support of this assertion. Instead, he relies upon a
trial court order in Deutsche Bank National Trust Co. as Trustee v.
Monchgesang, No. 09-C-0200, 08-E-0210, 2012 N.H. Super. LEXIS 56 (N.H.
Super. Ct. March 27, 2012). However, that order does not stand for the
proposition that a foreclosing entity must, as a matter of law, provide testimony
as to the exact date of an indorsement. Rather, the trial court stated that the
foreclosing bank had “not demonstrated that it possessed the indorsed original

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Note at the commencement of the foreclosure proceedings” because “there was
no evidence that the endorsement stamp was affixed at that time.” Id. at *16,
17. Here, Zecevic admits that the record contains evidence that the Note was
indorsed to US Bank “between August 25, 2006 and September 5, 2006,”
several years before foreclosure proceedings were instituted in May 2010.
Accordingly, we are not persuaded that the trial court erred when it granted US
Bank’s motion for summary judgment.

Affirmed.

DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.

Eileen Fox,
Clerk

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