Capital One v. Peck and

To preclude the possibility of one entity foreclosing on the home while the other enforces the note, we now hold that, when the note is separated from the mortgage, the plaintiff in a foreclosure action must demonstrate both possession of the note and a valid mortgage assignment prior to filing the complaint.

Here, MERS as nominee for [the originator] and its “successors” did assign the mortgage to [Capital One], a formality because [Capital One] is a successor to [the originator]. Thus, [Capital One] had both the original note and an assignment before filing this foreclosure complaint. The twist here is that [Capital One] returned the original note to Freddie Mac, and obtained the assignment from MERS as nominee of [the originator] after [the originator] merged with [Capital One].

and http://www.freddiemac.com/singlefamily/guide/bulletins/pdf/b111322.pdf Joy Harmon Sperling is a partner and chair of the Consumer Finance and Creditors' Rights group at Day Pitney in Parsippany. Rachel G. Packer is an associate in the firm's New York office. She represents lenders, investors and servicers in general litigation and other civil matters.