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JP Morgan Chase Bank, N.A. v. Hallberg

United States District Court, N.D. Mississippi, Eastern Division

October 5, 2017

JP MORGAN CHASE BANK, NA SERVICER FOR WELLS FARGO BANK, N.A. AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES. SERIES 2005-NC2, and SELECT PORTFOLIO SERVICING, INC. SERVICER OF U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES NC 2005-HE4 PLAINTIFFS
v.
ERIC HALLBERG AND CAPPE HALLBERG DEFENDANTS

          Stephen T. Masley (MSB # 101870) McGLINCHEY STAFFORD PLLC Attorney for JP Morgan Chase Bank, N.A., et al

          Melody McAnally (MS Bar #101236) BUTLER SNOW LLP Attorney for Select Portfolio Servicing, Inc., et al

          Craig M. Geno (MS Bar #4793) LAW OFFICES OF CRAIG M. GENO, PLC Attorney for Eric Hallberg and Cappe Hallberg

          CONSENT JUDGMENT

          SHARION AYCOCK UNITED STATES DISTRICT JUDGE.

         BE IT REMEMBERED that this matter came before the Court upon the Complaint filed by the Plaintiffs, JP MORGAN CHASE BANK, NA (“Chase”) as servicer and attorney-in-fact for Wells Fargo Bank, National Association, successor by merger to Wells Fargo Bank Minnesota, National Association, as Trustee for Structured Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2005-NC2, SELECT PORTFOLIO SERVICING, INC. (“SPS”) as servicer and attorney-in-fact for U.S. Bank National Association, as Trustee, on behalf of the holders of the Asset Backed Pass-Through Certificates, Series NC 2005-HE4, against Defendants, ERIC HALLBERG and CAPPE HALLBERG (Eric Hallberg and Cappe Hallberg, collectively the “Hallbergs”) (Chase, SPS and the Hallbergs, collectively, the “Parties”). Having considered this matter and being informed that the Parties have reached an agreement, the Court finds as follows:

         1. On February 28, 2005, the Hallbergs executed and delivered a promissory Note in the amount of $132, 000 (the “First Note”) in favor of New Century Mortgage Corporation. Also, on February 28, 2005, as security for the First Note, the Hallbergs executed a Deed of Trust in favor of New Century Mortgage Corporation (the “First Mortgage”) encumbering that certain parcel of real property located at 104 South Primrose Lane, Starkville, Oktibbeha County, Mississippi (the “Subject Property”). The First Mortgage was recorded at Book 2005, Page 2958 of the land records of the Chancery Clerk of Oktibbeha County, Mississippi (the loan evidenced by the First Note and the First Mortgage shall be referenced to as the “First Loan”). Chase is the current servicer of the First Loan and attorney-in-fact for Wells Fargo Bank, National Association, successor by merger to Wells Fargo Bank Minnesota, National Association, as Trustee for Structured Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2005-NC2.

         2. On February 28, 2005, the Hallbergs also executed and delivered a Promissory Note in the amount of $33, 000 in favor of New Century Mortgage Corporation (the “Second Note”). Also on February 28, 2005, as security for the Second Note, the Hallbergs executed a Deed of Trust in favor of New Century Mortgage Corporation (the “Second Mortgage”) encumbering the Subject Property. The Second Mortgage was recorded at Book 2005, Page 2979 of the land records of the Chancery Clerk of Oktibbeha County, Mississippi (the loan evidenced by the Second Note and the Second Mortgage shall be referred to as the “Second Loan”). At all times relevant hereto, SPS was the servicer of the Second Loan, and attorney-in-fact for U.S. Bank National Association, as Trustee, on behalf of the holders of the Asset Backed Pass-Through Certificates, Series NC 2005-HE4.

         3. On or about March 4, 2005, New Century Mortgage Corporation executed an Assignment of the Second Mortgage to U.S. Bank National Association as Trustee, on behalf of the holders of the Asset Backed Pass-Through Certificates, Series NC 2005-HE4, which was recorded on October 12, 2006 at Book 2005, Page 18500 of the land records of the Chancery Clerk of Oktibbeha County, Mississippi (the “Second Mortgage Assignment”). A copy of the Second Mortgage Assignment is attached hereto as Exhibit A. The Second Mortgage Assignment explicitly states that the interest transferred is one “securing a Note in the sum of $33, 000.00.” However, the Second Mortgage Assignment contains a scrivener's error in that it references Book 2005, Page 2958 - rather than the intended Book 2005, Page 2979.

         4. On or about September 20, 2006, a Deed of Release was executed by SPS, as Attorney-in-Fact for Trustee U.S. Bank, which was recorded on October 12, 2006 at Book 2006, Page 18499 of the land records of the Chancery Clerk of Oktibbeha County, Mississippi (the “Deed of Release”). A copy of the Deed of Release is attached hereto as Exhibit B. The Deed of Release also contains a scrivener's error in that it references Book 2005, Page 2958 - rather than the intended Book 2005, Page 2979.

         5. On or about February 20, 2015, Chase and SPS filed this civil action seeking to reform the Second Mortgage Assignment and the Deed of Release to correct the scrivener's errors so that both the Second Mortgage Assignment and Deed of Release reference the Second Mortgage and the intended the intended Book 2005, and Page 2979.

         IT IS, THEREFORE, ORDERED, DECREED, AND ADJUDGED that the Second Mortgage Assignment executed on March 4, 2005 by New Century Mortgage Corporation in favor of U.S. Bank National Association as Trustee, on behalf of the holders of the Asset Backed Pass-Through Certificates, Series NC 2005-HE4, which was recorded on October 12, 2006 at Book 2005, Page 18500 of the land records of the Chancery Clerk of Oktibbeha County, Mississippi containing a scrivener's error is hereby corrected and reformed nunc pro tunc to reflect an assignment of the Second Mortgage recorded at Book 2005, Page 2979 in the land records of the Chancery Clerk of Oktibbeha County, Mississippi.

         IT IS FURTHER ORDERED, DECREED, AND ADJUDGED that the Deed of Release executed on September 20, 2006 by SPS, as Attorney-in-Fact for Trustee U.S. Bank, which was recorded on October 12, 2006 at Book 2006, Page 18499 of the land records of the Chancery Clerk of Oktibbeha County, Mississippi is hereby corrected and reformed nunc pro tunc to reflect a release and cancellation of the Second Mortgage recorded at Book 2005, Page 2979 of the land records of the Chancery Clerk of Oktibbeha County, Mississippi.

         IT IS FURTHER ORDERED, DECREED, AND ADJUDGED that, pursuant to the above referenced reformations of the Second Mortgage Assignment and the Deed of Release, that the Deed of Trust in favor of New Century Mortgage Corporation encumbering that certain parcel of real property located at 104 South Primrose Lane, Starkville, Oktibbeha County, Mississippi recorded at Book 2005, Page 2958 of the land records of the Chancery Clerk of Oktibbeha County, Mississippi be and hereby is declared to be a valid and lawful first priority security interest encumbering the Subject Property.

         IT IS FURTHER ORDERED, DECREED, AND ADJUDGED that the Chancery Clerk of Oktibbeha County, Mississippi, be served with a certified copy of this Consent Judgment by the Clerk of this Court and that the Chancery Clerk index and spread this Consent Judgment upon the land records of ...


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