Case Law

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Case law is the reported decisions of selected appellate and other courts (called courts of first impression) which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis. These interpretations are distinguished from statutory law which are the statutes and codes enacted by legislative bodies; regulatory law which are regulations established by governmental agencies based on statutes; and in some states, common law which are the generally accepted laws carried to the United States from England. Trials and hearings which are not selected as 'courts of first impression' do not have rulings that become case law; therefore, these rulings cannot be precedents for future court decisions. (http://en.wikipedia.org/wiki/Case_law)

Stories from Case Law

Tuesday, January 22nd, 2013

There has been recent upheaval in Georgia foreclosure law resulting from several key cases decided in 2012. We do not summarize the cases here, but rather seek to analyze their decisions’ impact on Georgia’s non-judicial foreclosure process while we await the Georgia Supreme Court’s response.

Reese v. Provident Funding Associates, LLP, 730 S.E.2d 551, 317 Ga. App. 353 (Ga. Ct. App. July 12, 2012)

In a sharply-divided decision, the majority held, as a matter of first impression, that Georgia’s foreclosure notice statute, O.C.G.A. § 44-14-162.2(a), requires the person or entity conducting a non-judicial foreclosure of a residential mortgage loan to provide the borrower/debtor with a written notice of the foreclosure sale that discloses not only “the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor” (the language that appears in the statute), but also the identity of the “secured creditor” (not required by the statutory language, but which the majority inferred based on legislative intent).

http://www.jdsupra.com/legalnews/burr-alert-georgia-foreclosure-law-in-t...

Saturday, November 13th, 2010

In a recent ruling addressing various issues raised in a lawsuit filed by apparent victims of an alleged deed ripoff, a California appeals court said, among other things, that there was nothing disqualifying, as one Defendant asserted, for the Plaintiffs to plead alternative facts in an attempt to undo both the deed ripoff itself, and the mortgage that was placed on the subject properties subsequent thereto. (This appeal involved a reversal of a trial court's judgment of dismissal after sustaining one defendant's demurrer. The ruling, although unpublished, may nevertheless be instructive for those in the legal profession looking to unwind or undo a wide variety of deed ripoffs, particularly, as in this case, the attorney representing one of the defendants attempts to trip up his/her adversary on a "pleading technicality.")

Thursday, October 21st, 2010

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

[EXCERPT]

Moreover, in the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks Capital Corp., 888 So. 2d 725, 726 (Fla. 5th DCA 2004). The judgment cancels the note. The clerk cannot return these instruments to the parties.