DAVID COCROFT and VEYNELCIA COCROFT v. HSBC BANK USA, N.A., as Trustee of the Deutsche ALT-A Mortgage Loan Trust Series…

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1640
DAVID C OCROFT and V EYNELCIA C OCROFT,
Plaintiffs-Appellants,
v.
HSBC BANK USA, N.A., as Trustee of the
Deutsche ALT-A Mortgage Loan Trust Series
2007-OA3; M ORTGAGE ELECTRONIC
R EGISTRATION S ERVICES , I NC .; AND BANK OF
A MERICA , N.A., AS SUCCESSOR IN INTEREST TO
C OUNTRYWIDE B ANK, FSB, AND AS SUCCESSOR BY
MERGER TO BAC HOME LOAN S ERVICING, LP
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 3408 — Matthew F. Kennelly, Judge.
____________________
A RGUED DECEMBER 1, 2014 — DECIDED J ULY 31, 2015
____________________
Before BAUER , K ANNE, and HAMILTON , Circuit Judges.
K ANNE, Circuit Judge. David and Veynelcia Cocroft, hus-
band and wife, acquired a home in Country Club Hills, Illi-

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2 No. 14-1640
nois. In 2007, they refinanced their mortgage on the home.
As part of the refinancing transaction, the Cocrofts’ mort-
gage and loan were pooled into a mortgage loan trust. Ap-
proximately one year later, the Cocrofts permanently ceased
making payments on the loan, and the trustee of the trust
eventually initiated a foreclosure action against them. The
Cocrofts raised a variety of claims against Appellees Mort-
gage Electronic Registration Systems, Inc. (“MERS”), Bank of
America, N.A. (“Bank of America”), BAC Home Loans Ser-
vicing (“BACHLS” or the “loan servicer”), and HSBC Bank
USA, N.A. (“HSBC Bank”). The district court granted sum-
mary judgment for Appellees on all claims. We affirm.
I. BACKGROUND
A. Factual History
In March 2006, the Cocrofts acquired the subject property
in Country Club Hills, Illinois. On April 17, 2007, the Co-
crofts refinanced their mortgage on the home by obtaining a
loan in the amount of $386,750.00 from Countrywide Bank,
FSB (“Countrywide”). As a part of this transaction, the Co-
crofts granted a mortgage to MERS, which was acting solely
as nominee for Countrywide. Ultimately, Bank of America
became a successor in interest to Countrywide. BAC Home
Loans Servicing, a Bank of America affiliate, took over ser-
vicing of the loan. The evidence suggests that it remained
the servicer during the relevant period to this dispute.
The note and the mortgage were pooled into a trust, pur-
suant to a pooling and servicing agreement (“PSA” or
“Agreement”). The PSA established HSBC Bank as the trus-
tee. In addition, the Agreement set May 1, 2007 as the cutoff
date for accepting loans into the trust, and it set May 31,

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No. 14-1640 3
2007 as the trust’s closing date. The Mortgage Loan Purchase
Agreement indicated that as of May 1, 2007, the note and
mortgage were pooled into the trust. On October 8, 2009,
MERS assigned its interest in the mortgage to HSBC Bank, as
trustee.1
The Cocrofts apparently kept up with their loan pay-
ments until the summer of 2008. They made their last two
payments by check in July and August (covering the months
of May and June of 2008). Both of those payments were re-
turned for insufficient funds. So, as far as we can tell, the fi-
nal payment made by the Cocrofts occurred, at the latest, in
April 2008. Countywide sent at least three letters to the Co-
crofts notifying them of their delinquency, in May, June, and
July of 2008.
By August 2008, Countrywide became aware that the Co-
crofts’ property was vacant and “a mess.” Countrywide
hired a contractor to change the locks, secure, and “winter-
ize” the property. On August 29, David Cocroft attempted
unsuccessfully to enter the home through the front door. He
ultimately entered through the garage door instead.
The Cocrofts claim that in or about May 2009, they
learned that Countrywide had made misrepresentations in
connection with their loan. Between May and July 2009, the
1 These financial transactions involve a complex series of transfers, as-
signments, and nominations, which the parties do little to elucidate. We
note that these “mortgage pools” held in trust have been common in the
context of mortgage-backed securities. The transactions at issue occurred
in the midst of the 2007–2009 financial crisis and straddled Bank of
America’s (now infamous) acquisition of Countrywide. See
http://www.forbes.com/sites/nathanvardi/2014/08/21/bank-of-americas-
16-65-billion-settlement-and-the-last-dinosaur-of-the-financial-crisis/.

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4 No. 14-1640
couple sent Bank of America,2 MERS, and Cook County
Sheriff Thomas Dart (through notary public Kathy Guinn)
various documents that they termed “affidavits.” These doc-
uments stated, in brief, that the Cocrofts were exercising
their right to cancel the loan. They claimed to have the right
to rescission because the lender committed various unspeci-
fied disclosure violations in contravention of several federal
statutes. The Cocrofts did not offer to remit any of the loan
funds.
Apparently in response to these “affidavits,” on June 19,
2009, Bank of America sent a letter notifying the Cocrofts
that their loan was valid and still in force. The letter also re-
minded the Cocrofts that their payments were severely de-
linquent. Nonetheless, the Cocrofts recorded their “rescis-
sion” documents with the Cook County Recorder of Deeds
on July 2, 2009.
On September 2, 2009, the Cocrofts sent documents iden-
tified as “Settlement and Closure” and “Cease and Desist”
letters to Bank of America and Countrywide. Those letters
asserted that the Cocrofts had exercised their right to cancel
the loan, and in doing so, had extinguished any financial lia-
bility to Bank of America and Countrywide. In addition,
they alleged that the property had been lawfully conveyed
to “The David Cocroft Living Trust.” The letters demanded
that the recipients cease and desist any further activities re-
lated to the mortgage and loan, or face legal action.
On September 25, 2009, Codilis, a law firm hired by
HSBC Bank, sent a letter notifying the Cocrofts that a fore-
2 By this point, Bank of America had become Countrywide’s successor in
interest.

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No. 14-1640 5
closure proceeding would be initiated against them. That let-
ter identified HSBC Bank as trustee of the mortgage loan
trust and BACHLS as the loan servicer. Apparently in re-
sponse to that letter, the Cocrofts sent cease-and-desist let-
ters to Codilis on September 30 and October 28, 2009.
On November 2 and 3, 2009, the Cocrofts sent HSBC
Bank, Codilis, and the loan servicer a document they entitled
a “Debt Collector Disclosure Statement,” which purported to
be a “continuation of the Cease and Desist letters” that had
been previously sent. The Disclosure Statement was an
eight-page questionnaire that required the addressees to an-
swer fifty-four questions regarding their transactions with
the Cocrofts. It stated that:
[d]ebt collector’s and/or Creditor’s, failure/refusal,
both intentional and otherwise, in completely, un-
ambiguously answering points “1” through “54”
above and returning this Debt Disclosure State-
ment, as well as providing Respondent with requi-
site verification validating he [sic] herein above ref-
erence [sic] alleged debt, constitutes the Debt Col-
lector’s and alleged Creditor’s tacit acquiescence
that Debt Collector and/or Creditor have no verifi-
able, lawful, bona fide claims against Respondent
in above referred alleged account or any and all
other alleged accounts not enumerated herein.
It also specified that failure to return a completed form with-
in thirty days would result in the waiver of any claims
against the Cocrofts, as well as the Cocrofts’ full indemnifica-
tion.
On November 23, 2009, HSBC Mortgage Services sent a
letter in response, which stated that HSBC Bank was “not

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6 No. 14-1640
able to locate an account with the account number, your
name, social security number, or address. Additionally, our
search included our affiliates and accounts where we may be
the trustee.” The letter provided contact information, should
the Cocrofts “require any additional information.”
On December 17 and 18, 2009, both Bank of America and
law firm Dilworth Paxson sent letters to the Cocrofts inform-
ing them that the loan had not been rescinded, was in full
force, and that the Cocrofts’ mortgage had been referred for
foreclosure. On January 2, 2010, the Cocrofts sent the loan
servicer copies of some of their previous correspondence,
including the cease-and-desist letters.
On January 19, 2010, HSBC Bank brought a foreclosure
action against the Cocrofts in Illinois state court.3
B. Procedural History
The Cocrofts filed this federal lawsuit on June 3, 2010, al-
leging a variety of federal claims, as well as supplemental
state law claims. Several of those claims were dismissed, and
the Cocrofts do not appeal those dismissals. Defendants
Bank of America, BACHLS, HSBC Bank, and MERS filed a
motion for summary judgment on the remaining claims,
which the district court granted. The Cocrofts appeal the
grant of summary judgment on several, but not all, of those
claims.
3 We note that the Cocrofts are no strangers to foreclosure actions: record
evidence suggests that banks have sought to foreclose on four of the nine
homes the Cocrofts have purchased since 1985.

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No. 14-1640 7
1. The Jenkins Affidavit and Testimony
Lanisa Jenkins was a “Vice President, Business Support
Manager” at Bank of America. During the course of discov-
ery, she provided both an affidavit and deposition testimony
concerning Bank of America’s relationship with the Cocrofts.
She attested to having personal knowledge of the facts con-
tained in the affidavit, based on her duties and responsibili-
ties as a Bank of America Vice President. She also had per-
sonal knowledge of Bank of America’s business records prac-
tices.
Jenkins attested in her affidavit that her duties included
“maintaining, accessing, reviewing and being familiar with
Bank of America’s mortgage loan records, including residen-
tial loan applications.” She further attested that those rec-
ords were made at or near the time of the occurrence of the
matters described by the records, and that those records
were kept as part of Bank of America’s regular business prac-
tices. She then described and attached as exhibits, among
other documents, the original note for the loan at issue, held
by Bank of America; the wiring instructions for the closing of
the loan; the loan’s payment history; and correspondence
with the Cocrofts regarding the loan.
Bank of America filed a copy of Jenkins’s affidavit with
its materials in support of summary judgment. In their
memorandum in opposition to summary judgment, the Co-
crofts requested that Jenkins’s affidavit and deposition tes-
timony be stricken for failure to comply with Rule 56(c).
They argued that (1) at least some of Jenkins’s statements
were not based on her own personal knowledge, but on the
knowledge of other parties; and (2) that the affidavit “alleges
new and different facts then [sic] she previously alleged at

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8 No. 14-1640
her deposition which Plaintiffs’ [sic] view as contradictory
statements.”
The district court overruled the Cocrofts’ objection to the
affidavit. It credited Jenkins’s under-oath attestations that
her statements were based on her own personal knowledge
of Bank of America’s business records, which she was re-
sponsible for maintaining. The district court also noted that
the Cocrofts had not pointed to any specific inconsistencies
between the deposition testimony and the affidavit that
would render either inadmissible.
2. Illinois Consumer Fraud and Deceptive Business Practices
Act Claim
The Cocrofts alleged a violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act (“ICFA”). They
contended that HSBC Bank’s November 23 letter, in which it
indicated that it was unable to locate an account for the Co-
crofts, constituted a deceptive business practice. The district
court concluded that the Cocrofts “offered no evidence that
this was deceptive (HSBC Bank may have held the mortgage
as trustee, but it was not servicing the loan), and given the
lack of evidence, no reasonable finder of fact could find in
their favor on this allegation.” The district court granted
summary judgment for HSBC Bank.
3. Fraudulent Possession Claim
The Cocrofts alleged a state law fraudulent possession
claim based on Countrywide’s actions in August 2008, when
it changed the locks and “winterized” the property. The dis-
trict court concluded that Countrywide did interfere with
the Cocrofts’ property interest, but that no reasonable fact-
finder could conclude that such interference was wrongful.

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No. 14-1640 9
The court found that a provision in the mortgage entitled
Countrywide to the type of entry it made, and that the Co-
crofts consented to such an entry in signing the mortgage
instrument. The court granted summary judgment for Ap-
pellees on this claim.
4. Quiet Title Claim
Finally, the Cocrofts raised a claim to quiet title, on the
grounds that their loan was transferred into the mortgage
loan trust in violation of the pooling and servicing agree-
ment. The Cocrofts alleged that the loan was actually trans-
ferred into the trust after May 1, 2007. As such, they argued,
the transfer was void, and HSBC Bank subsequently lacked
title to the property.
The district court concluded that the Cocrofts had stand-
ing to challenge the transfer, but that they did not offer any
evidence “that would allow a reasonable finder of fact to de-
termine that their loan was improperly transferred into the
trust.” The court granted summary judgment for Appellees.
II. A NALYSIS
We conclude that the Cocrofts fail to raise any genuine is-
sues of material fact, and we affirm the district court’s grant
of summary judgment. We treat each claim in turn.
A. The Jenkins Affidavit and Testimony
We review for abuse of discretion a district court’s refusal
to strike or disregard an affidavit (or portions thereof) in a
motion opposing summary judgment. Balderston v. Fairbanks
Morse Engine Div. of Coltec Indus., 328 F.3d 309, 318 (7th Cir.
2003), as amended (May 22, 2003).

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10 No. 14-1640
In their memorandum in opposition to summary judg-
ment, the Cocrofts requested that the district court strike
both Jenkins’s affidavit and her deposition testimony that
had been submitted by Appellees. The Cocrofts raised two
arguments in support of their request: (1) that the affidavit
failed to satisfy Rule 56’s requirement that “an affidavit or
declaration used to support or oppose a motion must be
made on personal knowledge,” Fed. R. Civ. P. 56(c)(4); and
(2) that because portions of the affidavit and deposition tes-
timony conflicted, both must be stricken. The district court
overruled the Cocrofts’ objection.
We agree with the district court that the affidavit satisfied
the personal knowledge requirement of Rule 56. The Co-
crofts concede that Jenkins was familiar with Bank of Ameri-
ca’s business records. They argue, however, that the affidavit
was nonetheless inadmissible, for three reasons: (1) Jenkins
couldn’t be adequately familiar with the procedures used by
Countrywide before it was acquired by Bank of America; (2)
Jenkins didn’t offer any testimony regarding how accurate
Bank of America’s records were; and (3) at least some of the
records were prepared by other Bank of America employees,
not Jenkins herself.
All three of these arguments fail. First, Jenkins was quali-
fied to attest to the business records obtained by virtue of
Bank of America’s acquisition of Countrywide. Second, Rule
56 does not impose the onerous personal knowledge re-
quirements that the Cocrofts read into it. Jenkins stated that
her job duties included familiarity with and maintenance of
Bank of America’s records. When it comes to testifying about
business records, “the custodian need not be the individual
who personally gather[ed] ... a business record. The custodi-

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No. 14-1640 11
an of the records need not be in control of or have individual
knowledge of the particular corporate records, but need only
be familiar with the company's recordkeeping practices.”
Thanongsinh v. Bd. of Educ., 462 F.3d 762, 777 (7th Cir. 2006)
(internal quotation marks omitted).
The Cocrofts point to no evidence suggesting that any of
the business records at issue were inaccurate, or somehow
unreliable. Jenkins provided sufficient indicia of their relia-
bility by attesting to the fact that they were prepared in the
regular course of business and close in time to the actions
they described. See Woods v. City of Chicago, 234 F.3d 979, 988
(7th Cir. 2000). This comports with the very rationale under-
lying the business record exception to the hearsay rule.
[T]he reliability of business records is supplied by
systematic checking, by regularity and continuity
which produce habits of precision, by actual expe-
rience of business in relying upon them, and/or by
a duty to make an accurate record as part of a con-
tinuing job or occupation. Given the nature of the
reliability of business records, it makes no differ-
ence whether the records are those of a party or of a
third person.
30C Michael H. Graham, Fed. Prac. & Proc. Evid. § 7047
(2014 ed.). Jenkins’s testimony and affidavit satisfied the re-
quirements of Rule 56.
As for the Cocrofts’ second argument, they contend that
portions of the affidavit contradict aspects of Jenkins’s depo-
sition testimony. Those contradictions, they argue, render
both Jenkins’s affidavit and her testimony inadmissible. The
Cocrofts cite a Supreme Court case as establishing that “an
affiant may not contradict or undermine their [sic] deposi-

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12 No. 14-1640
tion testimony with a later affidavit.” See Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). The Cocrofts mis-
read that case.
First, Cleveland does not state the proposition that the Co-
crofts claim. Cleveland had nothing to do with the admissibil-
ity of conflicting evidence. Instead, the Court noted by way
of analogy, without offering an opinion, that the circuits had
held “with virtual unanimity that a party cannot create a
genuine issue of fact sufficient to survive summary judg-
ment simply by contradicting his or her own previous sworn
statement (by, say, filing a later affidavit that flatly contra-
dicts that party's earlier sworn deposition) without explain-
ing the contradiction or attempting to resolve the disparity.”
Id. at 806. This statement does not create an evidentiary ban
on conflicting testimony. It simply notes a piece of uniformi-
ty among the circuits: a party cannot “manufacture” a dis-
pute by offering its own (inexplicably) contradictory testimo-
ny.
And second, the situation described by Cleveland doesn’t
exist in this case. Here, Appellees moved for summary
judgment, and Appellees offered the allegedly conflicting
pieces of evidence. Appellees obviously were not attempting
to survive summary judgment—they were attempting to
win it. Cleveland, therefore, has no application here.
In fact, Appellees’ submission of conflicting pieces of ev-
idence could, at least in theory, have helped the Cocrofts. If
they had identified specific, material factual discrepancies,
and if those discrepancies had established a genuine dispute,
the Cocrofts might have argued that they should survive
summary judgment. The Cocrofts, however, identified no
such specific, material contradictions. Instead, they argued

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No. 14-1640 13
that the affidavit and deposition must be stricken in toto.
Even if portions of the affidavit and deposition had conflict-
ed, excluding them in their entirety would not have been the
appropriate remedy. So the Cocrofts’ argument fails.
We conclude that the district court did not abuse its dis-
cretion in overruling the Cocrofts’ objection.
B. The ICFA Claim
The district court granted summary judgment for the de-
fendants on the ICFA claim, and we review de novo a grant
of summary judgment. Stern v. St. Anthony’s Health Center,
788 F.3d 276, 284 (7th Cir. 2015).4
The district court correctly identified the standard for a
plaintiff to prevail on an ICFA claim. The plaintiff must
prove that (1) the defendant committed a deceptive act or
practice; (2) the defendant intended for the plaintiff to rely
on the deception; (3) the deception happened in the course
of trade or commerce; and (4) the deception proximately
caused the plaintiff’s injury. See Connick v. Suzuki Motor Co.,
675 N.E.2d 584, 593 (Ill. 1996). A showing of actual reliance is
not required. Id.
The Cocrofts argue that HSBC Bank’s November 23
statement, which indicated that it was unable to locate an
account for the Cocrofts, constituted a deceptive practice.
We need not determine whether the letter was deceptive,
because we conclude that the Cocrofts did not show that
they suffered any injury as a result of the statement. Without
establishing injury, the Cocrofts cannot fulfill the fourth el-
4 The same standard applies to the Cocrofts’ claims for fraudulent pos-
session and quiet title, discussed below.

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14 No. 14-1640
ement of the ICFA claim. Therefore, they cannot survive
summary judgment.
In their briefs, the Cocrofts do not identify what injury
they suffered as a result of the November 23 letter. The only
statement that might be reasonably construed as asserting an
injury is that “[t]he Cocrofts spent their resources and time
attempting to communicate with the proper parties regard-
ing the loan.” Presumably, the Cocrofts’ argument is that
they forfeited some opportunity to send a necessary com-
munication to HSBC Bank regarding the loan, because they
believed, following the letter, that it did not hold an interest
in their loan.
But by November 23, the Cocrofts were well aware that
HSBC Bank had instituted foreclosure actions against them.
Had it denied any interest in the loan, the Cocrofts could
have used that denial against HSBC Bank in its foreclosure
action. If anything, any misrepresentation committed by
HSBC Bank in that letter would have benefitted the Co-
crofts—not injured them.
Without alleging a cognizable injury, the Cocrofts cannot
succeed in their ICFA claim. We affirm the grant of sum-
mary judgment.
C. The Fraudulent Possession Claim
In their complaint, the Cocrofts raised a claim of “fraudu-
lent possession” against Countrywide, HSBC Bank, MERS,
and Bank of America. The complaint did not cite an applica-
ble statute. In their response to Bank of America’s and
BACHLS’s motion for summary judgment, the Cocrofts al-

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No. 14-1640 15
leged that Bank of America and BACHLS violated Illinois
Code of Civil Procedure § 15-1701(b)(1).5
That code section governs “the right to possession of …
mortgaged real estate during foreclosure.” 735 ILCS § 5/15-
1701(a). Section (b)(1) provides that “the mortgagor shall be
entitled to possession of the real estate except if (i) the mort-
gagee shall show good cause, (ii) the mortgagee is so author-
ized by the terms of the mortgage or other written instru-
ment, and (iii) the court is satisfied that there is a reasonable
probability that the mortgagee will prevail on a final hearing
of the cause.” 735 ILCS § 5/15-1701(b)(1). The Cocrofts claim
that Bank of America and BACHLS cannot satisfy the stand-
ard set out in this provision, and thus engaged in fraudulent
possession.
We need not describe in detail the Cocrofts’ arguments in
support of their contention that Bank of America and
BACHLS violated this statute, for the simple reason that the
statute does not apply. The allegedly offending entry oc-
curred in August 2008. HSBC Bank did not file the foreclo-
sure action against the Cocrofts until January of 2010. This
statute governs “the right to possession of the mortgaged
real estate during foreclosure.” 735 ILCS § 5/15-1701(a) (em-
phasis added). The Cocrofts have not identified any authori-
ty—either case law or statutory—to suggest that this statute
applies before foreclosure has been initiated. Therefore, we
5 The Cocrofts also sometimes refer to this as a “trespass” claim, as did
the district court. As the Cocrofts only cite 735 ILCS § 5/15-1701(b)(1) as
the applicable statute, they do not appear to raise a trespass claim.

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16 No. 14-1640
conclude that the Cocrofts did not raise a genuine issue of
material fact, and summary judgment was appropriate.6
D. The Quiet Title Claim
An action to quiet title in property “is an equitable pro-
ceeding in which a party seeks to remove a cloud on his title
to the property.” Hoch v. Boehme, 990 N.E.2d 362, 374 (Ill.
App. Ct. 2013). The Cocrofts argue that their loan (or their
mortgage—their arguments are not entirely clear) was trans-
ferred into the trust after the trust’s closing date, in violation
of the pooling and servicing agreement. They claim that un-
der New York law (which all parties agree governs the PSA),
that transfer was automatically void; as a result, HSBC Bank
does not hold title to the property.
Appellees argue, on the other hand, that even if the trans-
fer occurred in violation of the PSA, the transfer would be
voidable, not void. And under New York law, third-party
non-beneficiaries of a trust lack standing to challenge a
6 We note that the Cocrofts may have had a viable claim for criminal
trespass under 720 ILCS § 5/21-3—an entirely different statute than that
relied upon by the Cocrofts. That statute makes it unlawful for an indi-
vidual to “knowingly and without lawful authority [enter] or [remain]
within or on a building.” 720 ILCS § 5/21-3(a)(1). That subdivision, how-
ever, includes an exception that applies to the mortgagee, or agent of the
mortgagee, for “entering, securing, or maintaining an abandoned resi-
dential property.” 720 ILCS § 5/21-3(e-5). Abandoned residential proper-
ty is defined in cross-referenced section 735 ILCS 5/15-1200.5. The Co-
crofts might have plausibly argued that the property did not satisfy the
requirements to be considered abandoned, and thus that Countrywide’s
(Bank of America’s) entry was unlawful. We need not address this issue,
however, because the Cocrofts waived it by failing to raise it below.

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No. 14-1640 17
merely voidable transfer. For the purposes of this discussion,
we assume without deciding that a late transfer occurred.
New York Estates, Powers, and Trusts Law § 7-2.4 con-
cerns when the actions of a trustee are considered void. It
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 (McKin-
ney).
The Cocrofts argue that the late transfer constituted an
ultra vires act that, under § 7-2.4, was automatically void. In
interpreting this statute, however, New York courts appear
to have almost uniformly concluded that a beneficiary re-
tains the authority to ratify a trustee’s ultra vires act, such as
a late transfer. See Mooney v. Madden, 597 N.Y.S.2d 775, 776
(N.Y. App. Div. 1993); see also Anh Nguyet Tran v. Bank of New
York, No. 13 Civ. 580, 2014 WL 1225575 at *5 (S.D.N.Y. Mar.
24, 2014) (collecting New York cases holding the same). And
therefore, the cases hold, because the act can be ratified, it
must not be void; it must merely be voidable.
The Cocrofts have presented no evidence to suggest that
the trust’s beneficiaries lacked the authority to ratify acts by
the trustee. They have pointed to no provision in the PSA, or
any other document, that would indicate such a limitation
on the power of the beneficiaries. We conclude, therefore,
that the transfer was not void, but at most merely voidable.
That brings the transfer outside the ambit of § 7-2.4.
Given that the transfer was only voidable, we now turn
to whether the Cocrofts have standing to challenge it. The

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18 No. 14-1640
weight of New York Law establishes that “litigants who are
not beneficiaries of a trust lack standing to enforce the trust’s
terms or to challenge the actions of the trustee.” Tran, 2014
WL 1225575 at *3. The Cocrofts do not allege that they were
intended third-party beneficiaries of the trust. Nor do they
point to any provision in the PSA that extended them rights
or obligations under the trust.
The Cocrofts cite one New York case, an unreported dis-
position, in support of their contention that they have stand-
ing to challenge the transfer. In that case, the Kings County
Supreme Court determined that a non-beneficiary third par-
ty had standing to challenge a trustee’s acceptance of a note
and mortgage into the trust after its closing date. Wells Fargo
Bank, N.A. v. Erobobo, 39 Misc. 3d 1220(A) at *8 (N.Y. Sup. Ct.
2013). We need not dwell on the court’s reasoning in that
case, because in April 2015 that decision was reversed by the
Appellate Division of the New York Supreme Court. On ap-
peal, the court held that “Erobobo, as a mortgagor whose
loan is owned by a trust, does not have standing to challenge
the plaintiff’s possession or status as assignee of the note and
mortgage based on purported noncompliance with … the
PSA.” Wells Fargo Bank, N.A. v. Erobobo, 9 N.Y.S.3d 312, 314
(N.Y. App. Div. 2015).
We conclude that the Cocrofts lack standing to challenge
the transfer. Their action to quiet title must fail, and sum-
mary judgment for Appellees was appropriate.
III. CONCLUSION
For the reasons above, the judgment of the district court
is AFFIRMED.

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