Wednesday, November 14, 2007

A Federal Judge Whose Footnotes are Delicious

The case is simple. Deutsche Bank acted to foreclose on a large number of properties on which they held mortgages. Nobody really questions whether the Bank actually was the holder of the paper.

However, the paperwork was not complete; the usual endorsement stamps were not up-to-date. Thus, technically, the Bank did NOT hold the paper.

So they get to court.

And the judge tells them to go pound sand.


On October 10, 2007, this Court issued an Order requiring Plaintiff-Lenders in a number of pending foreclosure cases to file a copy of the executed Assignment demonstrating Plaintiff was the holder and owner of the Note and Mortgage as of the date the Complaint was filed, or the Court would enter a dismissal. After considering the submissions, along with all the documents filed of record, the Court dismisses the captioned cases without prejudice.

Yes, the bold and italics were in the original--plus underlines, which Blogger will not do.

But that's not the best part.

He also wrote a footnote which will give schadenfruede tingles to anyone who EVER was angry with a bank:

3 Plaintiff’s, “Judge, you just don’t understand how things work,” argument reveals a condescending mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, “how do I save my home,” or “if I have to give it up, I’ll simply leave and find somewhere else to live.”

In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a default judgment and then sit on the deed, avoiding responsibility for maintaining the property while reaping the financial benefits of interest running on a judgment. The financial institutions know the law charges the one with title (still the homeowner) with maintaining the property.

There is no doubt every decision made by a financial institution in the foreclosure process is driven by money. And the legal work which flows from winning the financial institution’s favor is highly lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit — to the contrary , they should be rewarded for sound business and legal practices. However, unchallenged by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about maximizing returns.

Unlike the focus of financial institutions, the federal courts must act as gatekeepers, assuring that only those who meet diversity and standing requirements are allowed to pass through.

Counsel for the institutions are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate.

The Court will illustrate in simple terms its decision:

“Fluidity of the market” — “X” dollars,
contractual arrangements between institutions and counsel” — “X” dollars,
“purchasing mortgages in bulk and securitizing” — “X” dollars,
“rush to file, slow to record after judgment” — “X” dollars,

“the jurisdictional integrity of United States District Court” —“Priceless.”

This is what's called a Can of Whoopass which has just been opened and liberally poured on the lawyers and Deutsche Bank.

HT: (and the long version of the story) Calculated Risk.

1 comment:

Brother James said...

Wouldn't a banker decry this as 'judicial activism'? Just saying..