Wells Fargo v. Erobobo: Mortgage-Backed Securities of the 2000s
Page created by Debbie Norman
NEW YORK LAW SCHOOL LAW REVIEW                                      VOLUME 59 | 2014/15
VOLUME 59 | 2014/15
Alex Luxenburg
Wells Fargo v. Erobobo: Mortgage-Backed
Securities of the 2000s
59 N.Y.L. Sch. L. Rev. 397 (2014–2015)
ABOUT THE AUTHOR: Alex Luxenburg is a Staff Editor of the 2014–2015 New York Law School Law
Review, J.D. candidate, 2015.
Wells Fargo v. Erobobo: Mortgage-Backed Securities of the 2000s                                                       N
As the dust from the 2008 housing bubble begins to settle, a new breed of
foreclosure litigation has emerged.1 The mid-2000s witnessed a decrease in
underwriting standards, coupled with a dramatic increase in the issuance of subprime
mortgage loans.2 Additionally, it became commonplace for the loan originators to
sell these risky mortgages to various securitizers—mainly Fannie Mae, Freddie Mac,
and investment banks—who then transfer the mortgage loans to a trust that issues
pass-through securities entitling the trust beneficiaries to the interest and principle
of the mortgage loans. 3 These securities and trusts are controlled by complex
contractual documents and subject to various state and federal laws.4
Many complications arose in the process of pooling thousands of mortgage loans
into a single instrument and issuing securities.5 One such complication was the
misplacement or mismanagement of individual mortgage loans, opening the door for
the borrower to challenge the standing of a bank attempting to foreclose. 6
Consequently, courts have been forced to decipher the contractual documents
controlling the instruments holding these pools of mortgages in order to determine
which set of laws applies.7
In Wells Fargo Bank, N.A. v. Erobobo,8 the New York Kings County Supreme
Court held that a bank could not foreclose on a $420,000 mortgage loan when the
mortgage originator 9 assigned the mortgage note to a servicer,10 which, in turn,
1.    See, e.g., Victoria V. Corder, When Securitization Complicates the Issue: What Are the Homeowner's Defenses
to Foreclosure?, 16 Wash. & Lee J. Civil Rts. & Soc. Just. 299, 308–11 (2009), as adapted in
Homeowners and Bondholders as Unlikely Allies: Allocating the Costs of Securitization in Foreclosure, 30
Banking & Fin. Services Pol'y Rep. Online (CCH) No. 5, at 19, 21–22 (May 2011) (discussing the
defaulting mortgagors' standing defense to foreclosure proceedings brought by banks holding securitized
mortgages in a trust); see also Wells Fargo Bank, N.A. v. Erobobo, No. 31648/2009, 2013 WL 1831799,
at *1 (N.Y. Sup. Ct. Apr. 29, 2013).
2.    Michael Simkovic, Competition and Crisis in Mortgage Securitization, 88 Ind. L.J. 213, 225–27 (2013).
3.    Thomas E. Plank, Regulation and Reform of the Mortgage Market and the Nature of Mortgage Loans:
Lessons from Fannie Mae and Freddie Mac, 60 S.C. L. Rev. 779, 797–98 (2009).
4.    See, e.g., Roy D. Oppenheim & Jacquelyn K. Trask-Rahn, Deconstructing the Black Magic of Securitized
Trusts: How the Mortgage-Backed Securitization Process Is Hurting the Banking Industry's Ability to Foreclose
and Proving the Best Offense for a Foreclosure Defense, 41 Stetson L. Rev. 745, 756–58 (2012).
5.    Id.
6.    See Corder, supra note 1.
7.    See Oppenheim & Trask-Rahn, supra note 4.
8.    No. 31648/2009, 2013 WL 1831799 (N.Y. Sup. Ct. Apr. 29, 2013).
9.    Alliance Mortgage Corporation is the mortgage originator in the context of this case. "Originators make
the decisions as to whether or not to loan, they negotiate loan terms, commonly prepare the loan documents,
and advance loan funds on the security of land interests." Curtis J. Berger et al., Land Transfer and
Finance: Cases and Materials 98 (6th ed. 2011).
10.   Option One Mortgage Corporation is the servicer in this case. A servicer collects principal and interest
payments, sends the proceeds to the lender, verifies the payment of insurance and taxes on the mortgaged
property, and takes corrective action when the borrower is delinquent on his payments. Id. at 98. Some
servicers are responsible for tens of thousands of mortgages. Id. at 99. The servicer industry is "heavily
computerized." Id.
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assigned the mortgage note to the bank in violation11 of the Pooling and Servicing
Agreement (PSA).12 In denying Wells Fargo Bank, N.A.'s ("Wells Fargo") motion
for summary judgment, the court held—"without any analysis"13 —that Estates
Powers and Trusts Law (EPTL) section 7-2.414 governed Wells Fargo's Real Estate
Mortgage Investment Conduit (REMIC)15 and, as such, section 7-2.4 voided Wells
Fargo's assignment of Rotimi Erobobo's mortgage note.16 The court found that Wells
Fargo did not own Erobobo's mortgage note because the assignment was void and,
therefore, Wells Fargo could not meet its prima facie case to foreclose.17
On July 16, 2006, Alliance Mortgage Banking Corporation ("Alliance") secured
a loan of $420,000 to Erobobo.18 On the following day, Alliance assigned Erobobo's
mortgage note to the servicer, Option One Mortgage Corporation ("Option One").19
On October 1, 2006, a PSA was created and signed by Option One Asset Backed
11.   One could argue that the assignment from the servicer to Wells Fargo did not violate the PSA. See
Sigaran v. U.S. Bank Nat'l Ass'n, No. H-12-3588, 2013 WL 2368336, at *3 (S.D. Tex. May 29, 2013)
(holding that the terms of a PSA do not require a written assignment to validly transfer the mortgage to
a REMIC trust), aff 'd, No. 13-20367, 2014 WL 1688345 (5th Cir. Apr. 30, 2014). For the purpose of
advancing the main arguments of this case comment, however, it is assumed that the assignment did
violate the terms of the PSA.
12.   The PSA governs the resulting trust and the securitization process. The PSA details the steps necessary to
effectuate the formation of the trust, to transfer the mortgages into the trust, to issue securities from the
trust, and to maintain the trust once created. See, e.g., Oppenheim & Trask-Rahn, supra note 4, at 756–57.
13.   Brief of Defendants-Appellees at 16, Rajamin v. Deutsche Bank Nat'l Trust Co., No. 13-1614-cv, 2013
WL 4047441, at *43 (2d Cir. Aug. 5, 2013). The Erobobo decision has garnered much scrutiny and has
been criticized for "fail[ing] to conduct any analysis as to why section 7-2.4 rendered the assignment
void. The opinion ignored long standing case law conflating the terms void and voidable and did not
cite to the line of cases where ultra vires acts could be ratified." Brief for the Defendant-Appellee at 37,
Jepson v. HSBC Bank USA, Nat'l Ass'n, No. 13-1364 (1st Cir. Sept. 18, 2013).
14.   The statutory section provides that "[i]f the trust is expressed in the instrument creating the estate of the
trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as
authorized by this article and by any other provision of law, is void." N.Y. Est. Powers & Trusts Law
§ 7-2.4 (McKinney 2014).
15.   In this case, the REMIC is the method used by Wells Fargo to pool the mortgages together and issue
securities. Wells Fargo Bank, N.A. v. Erobobo, No. 31648/2009, 2013 WL 1831799, at *7 (N.Y. Sup.
Ct. Apr. 29, 2013). Here, the REMIC was organized as a trust, but REMICs may also be "corporation[s],
partnership[s], or even a segregated pool of assets that is not an entity for state law purposes." Berger
et al., supra note 9, at 983. Also, the securities here were in the form of pass-through securities, but the
securities may also be "debt, stock, or partnership interests." Id. "REMIC securities dominate the
secondary mortgage market." Id. at 977. REMICs are used primarily for their favorable income tax
benefits. See id. at 983 (explaining that the REMIC structure alleviates "tax related inefficiencies"
imposed by other structures used to issue asset-backed securities). While REMIC status affects its tax
consequences, it is important to note that "the securities law, state law, and GAAP consequences of the
transaction remain unchanged." Id.
16.   See Erobobo, 2013 WL 1831799.
17.   Id. at *6–7.
18.   Id. at *2.
19.   Id.
Wells Fargo v. Erobobo: Mortgage-Backed Securities of the 2000s                                                    N
Funding Corporation ("ABFC") as the depositor, 20 and Wells Fargo as the trustee of
the newly formed REMIC.21 The PSA enumerated that ABFC shall transfer all of
the interest in the mortgage notes to Wells Fargo by the closing date, November 14,
2006.22 On July 15, 2008, 23 Option One assigned Erobobo's mortgage note to Wells
Fargo.24 On December 10, 2009, Wells Fargo commenced an action to foreclose and
subsequently filed a motion for summary judgment on May 11, 2010. 25
Assuming the court properly determined that Wells Fargo violated the terms of
the PSA, the court's ruling is legally flawed. First, the Uniform Commercial Code
(UCC)—not N.Y. State Trust Law—should govern Erobobo's mortgage note.
Second, even if N.Y. State Trust Law were applicable, the court's application of the
EPTL was incorrect because EPTL section 7-2.4 provides no basis for voiding acts
by the sponsor or depositor. Even if section 7-2.4 permitted courts to void acts by the
depositor, a mortgagor lacks standing to assert a violation of a trust agreement he is
not a party to for the purpose of defeating an otherwise valid foreclosure action. To
allow a non-beneficiary to assert a trust violation as a defense to a foreclosure action
brought on behalf of the trust beneficiaries goes against the EPTL's intended purpose
and would lead to absurd results in the mortgage marketplace.
The enforcement of Erobobo's mortgage note is not governed by N.Y. State Trust
Law because: (1) a note secured by a mortgage is governed by the UCC; and (2) the
term "trust" in section 7-2.4 excludes mortgage securitization trusts. Although the
PSA agreement contains a choice of law provision identifying N.Y. law as governing
any dispute arising under the agreement, the clause has no bearing on whether the
UCC or EPTL should govern the mortgage-note assignment.26
The Erobobo court's decision to apply EPTL section 7-2.4 to Erobobo's mortgage
note was incorrect because a note secured by a mortgage is governed by the UCC
rather than N.Y. State Trust Law.27 It is well settled that a note secured by a mortgage
20. The depositor's role is confined to accepting the bundled mortgages and then dispersing them to the
trust. The depositor has no assets or liabilities other than this single bundle of mortgages. This is done
for the purpose of ensuring bankruptcy protection for the servicer. See Oppenheim & Trask-Rahn, supra
note 4, at 753.
21.   See Erobobo, 2013 WL 1831799, at *2, *7.
26. The UCC is not a federal law. Once a state legislature adopts the UCC, it becomes codified in the
state's code of statutes. New York has adopted the UCC, which means that the choice of law provision
identifying N.Y. law as the governing law has no bearing on whether the UCC or EPTL should govern
the assignment because both are N.Y. statutes. See William Schnader, A Short History of the Preparation
and Enactment of the Uniform Commercial Code, 22 U. Miami L. Rev. 1, 10 (1967); see also United States
v. Kimbell Foods, Inc., 440 U.S. 715, 733–35 (1979) (finding federal interests not sufficiently implicated
to warrant displacement of state law and applying the UCC as the state rule of decision).
27.   See Slutsky v. Blooming Grove Inn, Inc., 542 N.Y.S.2d 721, 723 (2d Dep't 1989); HSBC Bank USA,
Nat'l Ass'n v. Miller, 889 N.Y.S.2d 430, 432 (Sup. Ct. 2009).
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is a negotiable instrument, and the validity of its assignment is governed by Article 3
of the UCC. 28 Thus, courts evaluating claims regarding the enforceability of
mortgage-note assignments apply the UCC rather than state trust law.29 Additionally,
there is nothing in Article 3 that would permit a court to void such an assignment
simply because it violates the PSA. 30 Accordingly, the court erred in deeming
Erobobo's assignment void because it is governed by Article 3 of the UCC, which
provides no basis to challenge the assignment of a mortgage note.31
Further, the Erobobo court applied section 7-2.4 erroneously because the term
"trust" does not include a mortgage securitization trust.32 EPTL section 1-1.5 provides
that "[u]nless otherwise stated therein, the provisions of this chapter apply to the
estates, and to instruments making dispositions or appointments thereof, of persons
living on its effective date or born subsequent thereto." 33 EPTL section 7-2.4 applies to
estates and instruments of persons and does not cover trusts created in the name of
multinational banking corporations.34 Section 1-1.5 makes clear that the term "trust,"
as defined by the 1966 legislature, was meant to apply to instruments created in the
name of natural persons who wish to transfer their assets.35 Thus, because the term
"trust" in section 7-2.4 refers solely to those created in the name of natural persons, the
EPTL does not apply to mortgage-backed securities issued by banking corporations.
Even assuming that the EPTL controlled Erobobo's mortgage-note assignment,
the EPTL should not be read to void the assignment for several reasons. First, the
EPTL provides that only acts performed by the trustee in contravention of the trust
may be deemed "void." This means that any error regarding the transfer of Erobobo's
mortgage note would not justify voiding the assignment since the error would be
attributable to the sponsor or depositor—not the trustee. Second, to the extent that
Erobobo is neither a party nor a beneficiary to the PSA—that is, he did not purchase
a financial interest in the REMIC—he lacks standing to assert a claim reserved for
REMIC beneficiaries. Third, the court should have interpreted the term "void" as
"voidable" pursuant to the ratification doctrine, under which the claimed PSA
violation may be subsequently cured by the consent of the trust beneficiaries. The
court's contrary interpretation goes against the intended purpose of the EPTL and
would lead to absurd results in the mortgage marketplace. 36
28. U.C.C. § 3-102 (2002); see also Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law
544 (5th ed. 2007) ("[I]t is entirely clear that Article 3 of the Uniform Commercial Code governs
transfers of the right to enforce negotiable promissory notes, even when they are secured by mortgages.").
29. See Slutsky, 542 N.Y.S.2d at 724.
30. See U.C.C. § 3 (2002).
32.   N.Y. Est. Powers & Trusts Law § 1-1.5 (McKinney 2014).
34. Id. §§ 7-2.4, 1-1.5.
35.   Id. § 1-1.5.
36. Id. § 7-2.4.
Wells Fargo v. Erobobo: Mortgage-Backed Securities of the 2000s                                                   N
Taking each of these arguments in turn: First, the Erobobo court erred in finding
that EPTL section 7-2.4 calls for voiding the assignment because the statute requires
an act of the trustee to be in contravention of the trust in order for the corresponding
act to be void. 37 The trustee (Wells Fargo) did not effectuate the mortgage-note
assignment. Pursuant to the provisions of the PSA, an error regarding the transfer of
Erobobo's mortgage note is an error on behalf of the sponsor (Bank of America) or
the depositor (ABFC)­—the designated parties whose acts effectuate the assignment.
Even if deemed "in contravention of the trust" within the meaning of section 7-2.4,
the assignment is not an "act of the trustee" that justifies voiding the assignment.
The PSA contains numerous provisions identifying the duties and obligations of
the depositor, sponsor, 38 and trustee.39 Among other things, the PSA provides that
the "Depositor will cause the Mortgage Loans to be assigned to the Trustee for the
benefit of the Certificateholders" and "[t]he Pooling and Servicing Agreement will
require that the Depositor deliver or cause to be delivered to the Trustee on behalf of
the Certificateholders . . . the mortgage notes endorsed in blank and the Related
37.   Id.; see Deutsche Bank Nat'l Trust Co. v. Stafiej, No. 10 C 50317, 2013 WL 1103903, at *3–4 (N.D. Ill.
Mar. 15, 2013) (holding that transfer of mortgage note in breach of the PSA was not void under section
7-2.4 because failure to comply with the terms of the PSA was the fault of the assignor, not the trustee,
and thus "defendants have not pointed to an act 'of the trustee' in contravention of the PSA's terms").
The Mortgage Loans were selected by the Sponsor, with advice from Banc of America
Securities LLC (the "Underwriter") as to the characteristics of the Mortgage Loans in
each loan group that will optimize marketability of the Certificates, from the mortgage
loans purchased from the Originator under the Option One Mortgage Loan Purchase
Agreement, and were chosen to meet the requirements imposed by the rating agencies
to achieve the credit support . . . . These representations and warranties will be assigned
by the Sponsor to the Depositor and by the Depositor to the Trustee, for the benefit of
the Certificateholders. . . . Pursuant to the terms of the Mortgage Loan Purchase
Agreement, the Sponsor will make to the Depositor (and the Depositor will assign to
the Trustee for the benefit of Certificateholders) only certain limited representations
and warranties as of the Closing Date with respect to the Mortgage Loans, generally
intended to address the accuracy of the Mortgage Loan Schedule and the payment and
delinquency status of each Mortgage Loan.
ABFC 2006-OPT3 Trust, Free Writing Prospectus (Form FWP), 34 (Nov. 3, 2006), available at
http://www.sec.gov/Archives/edgar/data/1378849/000091412106003384/as5795051-fwp.txt.
Under the terms of the Pooling and Servicing Agreement, the Trustee also is responsible
for securities administration, which includes pool performance calculations, distribution
calculations and the preparation of monthly distribution reports. As securities
administrator, the Trustee is responsible for the preparation and filing of all REMIC tax
returns on behalf of the Issuing Entity and the preparation of monthly reports on Form
10-D, certain current reports on Form 8-K and annual reports on Form 10-K that are
required to be filed with the Securities and Exchange Commission on behalf of the
Issuing Entity and the Depositor will be required to sign any such monthly or annual
reports. . . . Wells Fargo Bank is acting as custodian of the mortgage loan files pursuant
to the Pooling and Servicing Agreement. In that capacity, Wells Fargo Bank is
responsible to hold and safeguard the mortgage notes and other contents of the mortgage
files on behalf of the Trustee and the Certificateholders.
Id. at 45–46.
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Documents."40 Moreover, with respect to the trustee—the only party whose ultra
vires41 acts may be deemed "void" under section 7‑2.4—the PSA strictly mandates
that "[t]he Trustee, on behalf of the Trust, is only permitted to take the actions
specifically provided in the Pooling and Servicing Agreement prior to an Event of
Default."42 Thus, the PSA makes clear that the role of transferring the mortgage
notes is entirely within the control and responsibility of the sponsor and depositor,
and expressly outside the control and responsibility of the trustee.43 Accordingly, if
there was an error regarding the transfer of Erobobo's mortgage note, it was an error
on behalf of the sponsor or depositor—the designated parties whose acts effectuate
the assignment.44 It follows that since section 7‑2.4 does not void acts by the depositor
or sponsor, the statute provides no basis for the court to void Erobobo's mortgage-
note assignment.45
Second, a mortgagor lacks standing to challenge a violation of a PSA REMIC
trust agreement (to which he is not a party) for the purpose of defeating an otherwise
valid foreclosure action.46 Recently, several N.Y. cases involving asset-securitization
trusts specifically addressed the ramifications of a trustee breaching the PSA
agreement and the trust's subsequent ability to foreclose.47 In U.S. Bank National
Ass'n v. Madero,48 a case materially similar to the Erobobo case, the trustee of a
REMIC received the defendants' mortgage note in violation of the PSA after the
trust had closed.49 Notwithstanding the violation, the court held that the defendants,
as neither parties nor beneficiaries to the PSA, lacked standing to challenge the
validity of the assignment.50 Thus, as the Second Circuit noted in Rajamin v. Deutsche
40. Id. at 47.
41.   See infra note 60.
42.   Id. at 45.
43.   See id. at 47.
44. See id.
45.   See N.Y. Est. Powers & Trusts Law § 7-2.4 (McKinney 2014). Additionally, the law requires REMIC
trusts to be "passive entities" and strictly forbids the trustee to effectuate any mortgage-note assignment
in or out of the trust. Thus, if the REMIC trust breached section 7-2.4 by transferring a mortgage note,
this same act should (in theory) be a breach of REMIC law. However, no breach of REMIC law is
alleged. Tax Reform Act of 1986, Pub. L. No. 99-514, § 671(a), 100 Stat. 2085, 2309 (codified in I.R.C.
§§ 860A–860G); Wells Fargo Bank, N.A. v. Erobobo, No. 31648/2009, 2013 WL 1831799 (N.Y. Sup.
Ct. Apr. 29, 2013).
46. This naturally begs the question: What if Erobobo purchased shares of the REMIC trust that contained
his mortgage note? Presumably, he would have standing. However, the purchasers of REMIC shares are
typically not individuals similar to Erobobo; they are rather institutions, pension funds, and
municipalities—parties that typically have portfolios containing mortgage-backed securities.
47.   See U.S. Bank Nat'l Ass'n v. Madero, No. 102965/08, 2012 WL 5893625 (N.Y. Sup. Ct. Nov. 15, 2012);
Rajamin v. Deutsche Bank Nat'l Trust Co., 757 F.3d 79 (2d Cir. 2014).
48. No. 102965/08, 2012 WL 5893625 (N.Y. Sup. Ct. Nov. 15, 2012).
49. Id. at *5.
50. Id.
Bank National Trust Co.,51 "[t]he weight of caselaw throughout the country holds that
a non-party to a PSA lacks standing to assert noncompliance with the PSA as a
claim or defense."52 As neither a party nor a beneficiary to the agreement, the
mortgagor is not in any way prejudiced by a violation of the agreement. Thus, for
good reason, courts view it as inequitable to allow the mortgagor to benefit from the
alleged violation. The Erobobo court therefore erred by allowing the mortgagor to
assert a violation of the PSA as a defense to Wells Fargo's foreclosure action.
Third, an act violating a trust agreement is voidable—not void.53 N.Y. courts
applying section 7-2.4 consistently choose not to interpret the language literally and
hold that acts in contravention of a PSA are not void, but merely voidable.54 This line
of cases finds support in the ratification doctrine, under which a given act, although
in violation of the original agreement, may subsequently be ratified by the consent of
the parties.55 Accordingly, section 7-2.4 should not be read literally and the term
"void" should be read as "voidable."56 Had the Erobobo court followed this well-
settled principle, the transfer of Erobobo's mortgage note would not have been
declared void, but at most voidable.57
In Mooney v. Madden,58 the court considered whether the trustees of a trust
agreement were strictly bound to vote a certain way regarding corporate stocks. If so,
the votes that had already been cast in violation of that agreement would be declared
null and void.59 In overruling the lower court, the appellate division in Mooney noted
51.   757 F.3d 79 (2d Cir. 2014).
52.   Id. at 84; see also Livonia Prop. Holdings, LLC v. 12840–12976 Farmington Road Holdings, LLC, 717
F. Supp. 2d 724, 736–37 (E.D. Mich. 2010) ("[F]or over a century, state and federal courts around the
country have . . . h[e]ld that a litigant who is not a party to an assignment lacks standing to challenge
that assignment."). The same principle holds true in the corporate context, where courts have held that
"the legality of actions taken at a shareholders' meeting is not open to collateral attack by nonshareholders
on any ground of informality or irregularity in the meeting." Swain v. Wiley Coll., 74 S.W.3d 143, 148
(Tex. Ct. App. 2002).
53.   Black's Law Dictionary defines void as "of no legal effect; null." Whereas voidable is defined as "valid
until annulled . . . capable of being affirmed or rejected at the option of one of the parties." Black's
Law Dictionary 1709 (9th ed. 2011).
54. See Orellana v. Deutsche Bank Nat'l Trust Co., No. 12-11982-NMG, 2013 WL 5348596 (D. Mass.
Aug. 30, 2013); Sigaran v. U.S. Bank Nat'l Ass'n, No. H-12-3588, 2013 WL 2368336, at *3 (S.D. Tex.
May 29, 2013), aff 'd, No. 13-20367, 2014 WL 1688345 (5th Cir. Apr. 30, 2014); Calderon v. Bank of
Am. N.A., 941 F. Supp. 2d 753, 766 (W.D. Tex. 2013); Koufos v. U.S. Bank, N.A., F. Supp. 2d 40, 44
(D. Mass. 2013).
55.   See Swain, 74 S.W.3d at 150 (discussing the ratification doctrine). "A voidable act may be subsequently
ratified or confirmed." Id.
56. See Bank of Am. Nat'l Ass'n v. Bassman FBT, LLC, 981 N.E.2d 1 (Ill. App. Ct. 2012); Sigaran, 2013
WL 2368336, at *3; Koufos, 939 F. Supp. 2d at 49; Deutsche Bank Nat'l Trust Co. v. Stafiej, No. 10 C
50317, 2013 WL 1103903 (N.D. Ill. Mar. 15, 2013); Calderon, 941 F. Supp. 2d at 766.
57.   See Wells Fargo Bank, N.A. v. Erobobo, No. 31648/2009, 2013 WL 1831799, at *8 (N.Y. Sup. Ct. Apr.
29, 2013).
58. 597 N.Y.S.2d 775, 775 (3d Dep't 1993).
59.   Id. at 776.
that "[a] trustee may bind the trust to an otherwise invalid act or agreement which is
outside the scope of the trustee's power [if] the beneficiary or beneficiaries consent
or ratify the trustee's ultra vires60 act or agreement."61 Additionally, the beneficiaries'
consent may be either express or implied62 and may be given prior to, or after, the
trustee's invalid act.63 Thus, it is well-settled law that an act which may be ratified is
voidable and therefore cannot be void on its face.64
In Sigaran v. U.S. Bank National Ass'n,65 the court examined—in the context of
section 7-2.4—the implications of a post-closing date mortgage-note transfer into a
REMIC trust. The Sigaran court reasoned that since "assignments made after the
Trust's closing date are voidable, rather than void, the Sigarans lack authority to
challenge the assignment of their mortgage to U.S. Bank."66 Similarly, in Calderon v.
Bank of America N.A., the mortgagors alleged that the foreclosing bank was not in
fact the holder of their mortgage notes based on alleged violations of the PSA
agreement.67 The Calderon court—relying on Mooney, Hackett, and other cases—held
that "under New York law, a trustee's unauthorized transactions may be ratified; such
transactions are, accordingly, voidable—not void."68 Finally, in Deutsche Bank National
Trust Co. v. Adolfo,69 the court was presented with the same situation under an
analogous Illinois statute, in which the mortgagor challenged foreclosure on the
60. The ultra vires doctrine refers to activities outside the scope of an entity's or individual's power. The
original purpose of the ultra vires doctrine was to protect the public from unsanctioned activities. See
Melvin A. Eisenberg & James D. Cox, Corporations and Other Business Organizations:
Cases and Materials 249 (10th ed. 2011). In Erobobo, Wells Fargo's acceptance or execution of the
assignment after the closing date of the REMIC trust fits neatly into the definition of an ultra vires act.
See Erobobo, 2013 WL 1831799, at *7.
61.   Mooney, 597 N.Y.S.2d at 776 (citations omitted).
62. Here, while there is no evidence that the beneficiaries expressly consented to Erobobo's untimely
mortgage note transfer, failure to consent would decrease the value of each beneficiary's share of the
trust. Accordingly, acceptance should be presumed "in accordance with the general rule that individuals
are presumed to act as their self-interest requires." Sinclair v. Fleischman, 773 P.2d 101, 105 (Wash.
1989) (holding that in the absence of express rejection, a donee's acceptance of a gift will be presumed).
63. Mooney, 597 N.Y.S.2d at 776.
64. See, e.g., Aronoff v. Albanese, 446 N.Y.S.2d 368, 370 (2d Dep't 1982) (stating that a void act cannot be
ratified); Leasing Serv. Corp. v. Vita Italian Rest., Inc., 566 N.Y.S.2d 796, 787 (3d Dep't 1991) (holding
that a contract entered into by a trustee outside the scope of the trustee's powers is not prima facie void);
In re Birnbaum, 503 N.Y.S.2d 451, 456 (4th Dep't 1986) (noting that an act that may be ratified is
clearly voidable, not void); Washburn v. Rainier, 134 N.Y.S. 301, 304 (2d Dep't 1912) (holding that a
trustee who disposes of his property in contravention of the trust agreement allows the beneficiary the
option to accept or reject the trustee's unauthorized action).
65.   H-12-3533, 2013 WL 2368336, at *2–3 (S.D. Tex. May 29, 2013), aff ' d, No. 13-20367, 2014 WL
1688345 (5th Cir. Apr. 30, 2014).
67.   941 F. Supp. 2d 753, 757 (W.D. Tex. 2013).
69. No. 12 C 759, 2013 WL 4552407, (N.D. Ill. Aug. 28, 2013).
Wells Fargo v. Erobobo: Mortgage-Backed Securities of the 2000s                                              N
grounds that the mortgage-note assignment occurred well after the trust had closed.70
Consistent with the weight of authority, the Adolfo court held that "a transfer that
does not comply with [the] PSA is voidable, not void." 71
It is clear that the weight of case law in New York and around the country
interprets the term "void" in section 7-2.4 to mean "voidable."72 Courts have thus
consistently held that violations of PSA agreements—such as when a trust receives a
mortgage note after its closing date—are not automatically void.73 Accordingly, the
Erobobo court erred when it held that Erobobo's mortgage note transfer to Wells
Fargo should have been deemed void.74
Using section 7-2.4 as a means to void the Erobobo assignment goes against the
purpose of the EPTL and would lead to absurd results in the mortgage marketplace.75
The purpose of section 7-2.4 is to protect beneficiaries from unintended and
irreparable harm.76 In Adolfo, the court elaborated on the statute's purpose:
The evident purpose of [EPTL section 7-2.4] is to transfer the loans into the
trust for the benefit of the certificateholders in a way that avoids later
challenges along the lines that Adolfo has pursued in this case. But
certificateholders would be harmed if they could not receive foreclosure
proceeds because a transfer, otherwise effective under Article 3 [of the UCC],
did not comply with [EPTL section 7-2.4]. We conclude that the transfer of
the Note is voidable, at most, and therefore Adolfo cannot rely on
noncompliance with the PSA to defeat foreclosure.77
As noted by the Adolfo court, allowing non-beneficiaries to void a mortgage
transfer does not further the purpose of section 7-2.4. It instead directly harms the
trust beneficiaries—the very parties the statute was intended to protect—by
undermining their rights to the trust funds.78 Because Erobobo is neither a party nor
72. See Wells Fargo Bank, N.A. v. Erobobo, No. 31648/2009, 2013 WL 1831799 (N.Y. Sup. Ct. Apr. 29,
May 29, 2013), aff 'd, No. 13-20367, 2014 WL 1688345 (5th Cir. Apr. 30 2014); Calderon v. Bank of
Am. N.A., 941 F. Supp. 2d 753, 765–66 (W.D. Tex. Apr. 23, 2013); Koufos v. U.S. Bank, N.A., 939 F.
Supp. 2d 40, 48–49 (D. Mass. Mar. 21, 2013); Feldman v. Torres, 939 N.Y.S.2d 221 (2d Dep't 2011); In
re Levy, 893 N.Y.S.2d 142, 144 (2d Dep't 2010); Leasing Serv. Corp. v. Vita Italian Rest., Inc., 566
N.Y.S.2d 796, 797 (3d Dep't 1991); Mooney v. Madden, 597 N.Y.S.2d 775, 776 (3d Dep't 1993);
Washburn v. Rainer, 134 N.Y.S. 301 (2d Dep't 1912); Hine v. Huntington, 103 N.Y.S. 535, 540 (4th
Dep't 1907).
74.   See Erobobo, 2013 WL 1831799, at *9.
75. See Deutsche Bank Nat'l Trust Co. v. Adolfo, No. 12 C 759, 2013 WL 4552407, at *3 (N.D. Ill. Aug.
a beneficiary to the REMIC trust, allowing him to void his mortgage note assignment
runs afoul of EPTL's intended purpose.79
Finally, the Erobobo court's interpretation of section 7-2.4 was incorrect because
such an interpretation, if left standing, would lead to absurd80 results in the mortgage
marketplace.81 While many people believe it "impossible to even estimate" 82 the
number of PSA violations occurring in the mid-2000s, some suggest that the number
of timely mortgage-note transfers are "few, if any."83 Hence, if section 7-2.4 mandates
that all untimely transfers be void—a conclusion inescapable under the Erobobo
court's interpretation—then the home-loan sphere in the United States is in
jeopardy.84 Strict enforcement of section 7-2.4 leads to inequity by giving a windfall
to delinquent mortgagors at the expense of trust beneficiaries, whose interests the
statute seeks to protect.85
The Erobobo court erred in denying summary judgment to Wells Fargo's
foreclosure action. The court's application of EPTL section 7-2.4 runs contrary to
longstanding principles of equity, contradicts established precedent, and undermines
the statute's underlying purpose. It is hardly surprising that real estate lawyers have
caught wind of the Erobobo holding and have heavily scrutinized it for its faulty
reasoning. Yet, there are some who view it as a big win against the banks that no
doubt played a role in the financial crisis. If the Erobobo decision is upheld on appeal,
the foreclosure landscape across the country could be drastically impacted, perhaps
bringing another crisis upon us.
79. See Erobobo, 2013 WL 1831799, at *3.
80. The absurdity doctrine is a rule of construction which counsels against interpreting a statute in a way
that "would lead to an unconscionable result, especially one that . . . the drafters could not have intended
and probably never considered." Black's Law Dictionary 10 (9th ed. 2011).
82. Alvin Arnold, Securitization: Assignments After REMIC Closing Date are Void, 43 Real Est. L. Rep. 1,
2 (Sept. 2013).
83. The REMICS Have Failed! The REMICs Have Failed!, Deadly Clear 2 (Nov. 4, 2011), http://
deadlyclear.wordpress.com/2011/11/04/the-remics-have-failed-the-remics-have-failed/.
84. See N.Y. Est. Powers & Trusts Law § 7-2.4 (McKinney 2014).
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