Judicial

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The judiciary (also known as the judicial system or judicature) is the system of courts that interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of government is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "supreme court" or "constitutional court"), together with lower courts.

In most jurisdictions the judicial branch has the power to change laws through the process of judicial review. Courts with judicial review power may annul the laws and rules of the state when it finds them incompatible with the provisions of a constitution. Judges constitute a critical force for interpretation and implementation of a constitution, thus de facto in common law countries creating the body of constitutional law. (http://en.wikipedia.org/wiki/Judiciary)

Stories from Judicial

Monday, December 2nd, 2013

The Justices are soliciting amicus briefs. Whether Mortgage Electronic Registration Systems ("MERS") has standing to pursue a foreclosure in its own right as a named "mortgagee" with ability to act limited solely as a "nominee" and without any ownership interest or rights in the promissory note associated with the mortgage; whether the prospective mandate of Eaton v. Federal National Mortgage Association, 462 Mass. 569 (2012), applies to cases that were pending on appeal at the time that case was decided. The case is scheduled for argument in April 2013.

http://ma-appellatecourts.org/display_docket.php?dno=SJC-11299

Thursday, November 14th, 2013

Due to numerous requests for copies of substantive trial orders that I have issued, I am posting copies of such orders for easy online access. These orders are posted for information purposes only. Please bear in mind that an order, once issued, can be vacated, amended, or overruled.

http://www.scribd.com/Judge_Burgess_Orders

Wednesday, November 13th, 2013

In this appeal, we consider whether the trial judge correctly granted summary judgment in this convoluted quiet-title action, which sought, in part, to remove a mortgage because of alleged inadequacies in its assignment. Many of the relevant     facts are undisputed.  Plaintiff  William Suser obtained and recorded,  on July 29, 2006, a  mortgage on a West New York condominium unit securing his $150,000 loan to the prior owner.  Plaintiff later sued for and  obtained a foreclosure judgment and, after making a successful  $100 bid, obtained a sheriff's deed which acknowledged title was subject to prior encumbrances.  Plaintiff then commenced this  action seeking to quiet title through the removal of the two prior mortgages on the property, one of which was recorded by  World Savings Bank, FSB  (the World Savings mortgage),  on  September 23, 2004....

https://www.courtlistener.com/njsuperctappdiv/ex7N/william-suser-v-wacho...

Friday, September 13th, 2013

Appellants Domenic Lombardo and Nancy Anzalone, defendants below, appeal a Final Summary Judgment of Mortgage Foreclosure entered in favor of the Appellee HSBC Bank, National Association as Trustee for Wells Fargo Asset Securities Corporation Mortgage Pass Through Certificates, Series 2006 - AR8, plaintiff below. We reverse the summary judgment because, based on the record evidence in its present state, there remains a genuine issue of material fact regarding whether appellee complied with the condition precedent contained in the mortgage to provide pre-suit notice of acceleration.   

http://www.4dca.org/opinions/July%202013/7-03-13/4D12-8.op.pdf

Tuesday, August 20th, 2013

3)   The defendants concealed that the notes and the assignments were never delivered to the MBS trusts and disseminated false and misleading statements to the investors, including the U.S. government and the States of California, Delaware, Florida, Hawaii, Illinois, Indiana, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Rhode Island, Virginia, District of Columbia, the City of Chicago and the City of New York.

http://www.scribd.com/doc/160229841/Lynn-E-Symoniak-False-Claims-Act-Whistleblower-Complaint-Filed-Under-Seal-In-2011-Foreclosure-Wrongdoing

Wednesday, July 10th, 2013
The Castle Green Homeowners Association notified Afshan and Rahim Multani that they were delinquent in paying their monthly assess ment fees. After the Multanis disputed the debt, the Association conducted a nonjudicial foreclosure sale of their condominium unit. The Multanis sued to set aside the foreclosure alleging irregularities in the sale notices and procedure. They further alleged that the Association and its agents had committed tortious acts during the foreclosure process.
 
The defendants filed a motion for summary judgment or adjudication arguing that the court should dismiss the foreclosure claims because plaintiffs had actual knowledge of the foreclosure proceedings and failed to exercise their post-sale right of redemption.
Monday, May 20th, 2013

To help finance her purchase of a condominium (condo) for $395,000, Mary McCulley sought a residential loan from Heritage Bank (Bank) for $300,000. American Land Title Company (ALTC) provided a commitment for title insurance. McCulley signed a promissory note and signed a deed of trust as collateral. Subsequently, ALTC changed the designated use of the condo in the deed from residential to commercial. After closing, McCulley discovered the Bank had issued her an eighteen-month, $300,000 commercial property loan rather than the thirty-year residential property loan for which she applied. When she was unable to obtain long-term refinancing on the property, McCulley signed a warranty deed transferring ownership of the condo to the Central Asia Institute and used the proceeds to pay off the loan. McCulley then sued ALTC and the Bank (collectively, Defendants) for, inter alia, negligence, breach of contract, slander of title, and fraud. The district court granted summary judgment for Defendants. The Supreme Court (1) reversed the district court's order of summary judgment in favor of the Bank on the issue of fraud, as genuine issues of material fact existed relative to McCulley's claim of fraud on the part of the Bank; and (2) otherwise affirmed.

http://law.justia.com/cases/montana/supreme-court/2013/da-12-0117.html

>>>>>   http://www.blogtalkradio.com/senkalive/2013/06/29/we-are-living-in-a-foreclosure-fraud-world-1

Wednesday, April 10th, 2013

Defendant ARMANDO GRANILLO ("defendant GRANILLO") was employed by Fannie Mae, at its office in Irvine, California, as a Real Estate Owned Foreclosure Specialist. Defendant GRANILLO's duties included reviewing and approving applications made by real estate brokers for permission to list Fannie Mae REO properties for sale; assigning Fannie Mae REO property listings to approved real estate brokers; and approving sales offers submitted by approved brokers for the sale of Fannie Mae REO properties.  Defendant GRANILLO was paid by salary by Fannie Mae, and defendant GRANILLO was not entitled to receive compensation from the sale of Fannie Mae REO properties.

 B.  THE SCHEME TO DEFRAUD

Friday, March 22nd, 2013

(i) (1) In any civil action for foreclosure in which a defendant at the time of filing an application under subsection (c) is in military service or is within 180 days after termination of or release from military service and has received actual notice of the action or proceeding, or is a dependent of a servicemember in military service and has received actual notice of the action or proceeding, at any stage before final judgment in a foreclosure proceeding in which a servicemember or the servicemember's dependent is a party, the court may on its own motion or, upon application by the servicemember or the servicemember's dependent, stay the action until 180 days after termination of or release from military service. (2) An application for a stay under subsection (i)(1) shall include the following:

http://kslegislature.org/li/b2013_14/measures/documents/hb2360_00_0000.pdf

Monday, March 18th, 2013

We answer the certified question in the negative and hold that when a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff’s voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from undoing the improperly obtained relief. Any affirmative relief the plaintiff obtained against the defendant as a result of the fraudulent conduct would clearly have an adverse impact on the defendant, thereby entitling the defendant to seek relief to set aside the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(3). Where the plaintiff does not obtain affirmative relief before seeking the dismissal, measures other than reinstating the dismissed action exist to protect against a plaintiff’s abuse of the judicial process. We also conclude that a trial court does not have the inherent authority to strike the notice of voluntary dismissal in such a circumstance. 

http://www.floridasupremecourt.org/decisions/2013/sc11-697.pdf

Thursday, March 14th, 2013

[¶16] The requirement that a plaintiff “certify proof of ownership of the mortgage note” does require that a plaintiff do more than provide the evidence described in the second half of the sentence. 14 M.R.S. § 6321. The statute does not define “ownership.” In this context, we interpret “certify proof of ownership” to require the plaintiff to identify the owner or economic beneficiary of the note and, if the plaintiff is not the owner, to indicate the basis for the plaintiff’s authority to enforce the note pursuant to Article 3-A of the UCC. See 11 M.R.S. § 3-1301. We have previously connected a party’s right to bring an action for foreclosure to its right to enforce pursuant to 11 M.R.S. § 3-1301. See Saunders, 2010 ME 79, ¶ 12, 2 A.3d 289; see also JPMorgan Chase Bank v. Harp, 2011 ME 5, ¶ 9 n.3, 10 A.3d 718.

http://www.courts.state.me.us/opinions_orders/supreme/lawcourt/2013/13me...

Friday, January 25th, 2013

Page 9:  Underlying the objection that Pendergrass overlooks the impact of fraud on the validity of an agreement is a more practical concern: its limitation on evidence of fraud may itself further fraudulent practices. As an Oregon court noted: “Oral promises made without the promisor‟s intention that they will be performed could be an effective means of deception if evidence of those fraudulent promises were never admissible merely because they were at variance with a subsequent written agreement.” (Howell v. Oregonian Publishing Co. (Or.Ct.App. 1987) 735 P.2d 659, 661; see Sweet, supra, 49 Cal. L.Rev. at p. 896 [“Promises made without the intention on the part of the promisor that they will be performed are unfortunately a facile and effective means of deception”].) Corbin observes: “The best reason for allowing fraud and similar undermining factors to be proven extrinsically is the obvious one: if there was fraud, or a mistake or some form of illegality, it is unlikely that it was bargained over or will be recited in the document. To bar extrinsic evidence would be to make the parol evidence rule a shield to protect misconduct or mistake.” (6 Corbin on Contracts, supra, § 25.20[A], p. 280.)

http://www.courts.ca.gov/opinions/documents/S190581.PDF

Thursday, January 17th, 2013

Page 8:  Next, Glazer challenges the dismissal of his FDCPA claims against RACJ arising out of its conduct in relation to the attempted foreclosure on the Klie property. The district court ruled that these claims failed because RACJ’s activities in bringing a mortgage foreclosure action were not debt collection. The question is whether mortgage foreclosure is debt collection under the Act. We hold that it is and therefore reverse.

Page 11:  In fact, every mortgage foreclosure, judicial or otherwise, is undertaken for the very purpose of obtaining payment on the underlying debt, either by persuasion (i.e, forcing a settlement) or compulsion (i.e., obtaining a judgment of
foreclosure, selling the home at auction, and applying the proceeds from the sale to pay down the outstanding debt). As one commentator has observed, the existence of redemption rights and the potential for deficiency judgments demonstrate that the purpose of foreclosure is to obtain payment on the underlying home loan. Such remedies would not exist if foreclosure were not undertaken for the purpose of obtaining payment.  ....Accordingly, mortgage foreclosure is debt collection under the FDCPA.

http://www.ca6.uscourts.gov/opinions.pdf/13a0016p-06.pdf

Monday, November 26th, 2012

The Supreme Court of Ohio ruled Wednesday that in order to file a foreclosure against a homeowner, a lender must prove standing at the time they first file. Lenders do not have a grace period to gather proof of standing between filing and judgment.

The case, Federal Home Loan Mortgage Corp. v. Schwartzwald was brought before the Ohio Supreme Court after a lower court ruled in favor of Freddie Mac’s right to file foreclosure without proof of standing. 

 Freddie Mac did not have proof of standing when it filed but acquired proof before the lower court’s ruling.

The Schwartzwalds, who were in the process of working through a short sale with Wells Fargo at the time they received the foreclosure notice, appealed on the grounds that without proof of standing, Freddie Mac did not have grounds to sue them. 

http://www.dsnews.com/articles/ohio-supreme-court-issues-notable-foreclo...

Tuesday, November 20th, 2012

Pg 13:  Finally, Plaintiffs allege that the Note is current or has been satisfied. Considering this allegation as true and in the light most favorable to Plaintiffs, Defendants‟ Motion to Dismiss must be denied because the absence of default, if established as true by the finder of fact, would be a defense to a foreclosure allegedly triggered by borrower‟s default under the Note. For that reason alone, Plaintiffs‟ Complaint cannot be dismissed, and Plaintiffs must be given an opportunity to have the issue of default considered at trial. Accordingly, Defendants‟ Motion to Dismiss must be denied. Accepting the allegations set forth in the Complaint as true, and viewing them in the light most favorable to the Plaintiffs, Plaintiffs have set forth an allegation in the Complaint which, if true, establishes a claim for relief. 

Tuesday, November 20th, 2012

The New Jersey Supreme Court recently held in U.S. Bank N.A. v. Guillaume, 209 N.J. 449 (2012), that mortgage lenders seeking to foreclose on a residential property must comply with the New Jersey Fair Foreclosure Act’s requirement that a Notice of Intention to Foreclose set forth the name and address of the lender. The Order to Show Cause, once entered by the court, will authorize the plaintiff or its servicer to serve corrected Notices of Intention to Foreclose on any or all defendant mortgagors or entities or individuals obligated on those mortgage debts for any presently pending foreclosure actions that were filed before February 28, 2012 (the date of the Guillaume decision). That means that in those cases the lender will be permitted to continue to prosecute those pending foreclosure actions.

http://www.judiciary.state.nj.us/civil/forms/11647_foreclosure_obj_osc.pdf

http://www.judiciary.state.nj.us/superior/documents.htm

Tuesday, November 6th, 2012

{¶ 1} Duane and Julie Schwartzwald appeal from a judgment of the Second District Court of Appeals affirming a decree of foreclosure entered in favor of the Federal Home Loan Mortgage Corporation. In addition, the appellate court certified that its decision in this case conflicts with decisions of the First and Eighth Districts on the following issue: “In a mortgage foreclosure action, the lack of standing or a real party in interest defect can be cured by the assignment of the mortgage prior to judgment.”

{¶ 2} Federal Home Loan commenced this foreclosure action before it obtained an assignment of the promissory note and mortgage securing the Schwartzwalds’ loan. The Schwartzwalds maintained that Federal Home Loan lacked standing to sue. The trial court granted summary judgment in favor of Federal Home Loan and entered a decree of foreclosure. The appellate court affirmed, holding that Federal Home Loan had remedied its lack of standing when it obtained an assignment from the real party in interest.

Tuesday, October 23rd, 2012

Page 5:  3. Through investigation of a large sample of publicly recorded mortgage documents, Plaintiffs have discovered that more than 99% of the mortgages in each of the three Securitizations were improperly or never assigned. In particular, many of these mortgages remain in the name of the loan’s originator or its nominee, and have never been assigned to the Trusts. While others were purportedly assigned to the Trusts, this was long after the securities were issued, contrary to the representations in the Offering Documents. Similarly, the promissory notes were not properly assigned in approximately 81.9% of the sampled loans.

Page 16:   53. Through investigation of publicly recorded mortgage documents, Plaintiffs have discovered that, contrary to the Issuer Defendants’ statements in the Offering Documents, virtually all of the mortgages and promissory notes that were

Tuesday, October 16th, 2012

On remand, Eaton may renew her request for a preliminary injunction, and in that context seek to show that she has a reasonable likelihood of establishing that, at the time of the foreclosure sale, Green Tree neither held the note nor acted on behalf of the note holder. 29

4. Conclusion. We vacate the grant of the preliminary injunction, and remand the case to the Superior Court for further proceedings consistent with this opinion. So ordered.

Opinion:     http://www.suffolk.edu/sjc/archive/opinions/SJC_11041.pdf 

Oral Arguments:    http://www.suffolk.edu/sjc/archive/2011/SJC_11041.html

Friday, October 12th, 2012

14 MERS string cites eight more cases, six of them unpublished that, it contends, establishes that other courts have found that MERS can be beneficiary under a deed of trust. Resp. Br. of MERS (Selkowitz) at 29 n.98. The six unpublished cases do not meaningfully analyze our statutes. The two published cases, Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, 121 Cal. Rptr. 3d 819 (2011), and Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177 (N.D. Cal. 2009), are out of California, and neither have any discussion of the California statutory definition of “beneficiary.” The Fourth District of the California Court of Appeals in Gomes does reject the plaintiff’s theory that the beneficiary had to establish a right to foreclose in a nonjudicial foreclosure action, but the California courts are split. Six weeks later, the third district found that the beneficiary was required to show it had the right to foreclose, and a simple declaration from a bank officer was insufficient. Herrera v. Deutsche Bank Nat’l Trust Co., 196 Cal. App. 4th 1366, 1378, 127 Cal. Rptr. 3d 362 (2011).

http://www.courts.wa.gov/opinions/pdf/862061.opn.pdf