(BREAKING NEWS, OP-ED) — The author posts two new cases this month worthy of your attention, as most homeowners contemplating foreclosure defense should understand that perseverance and attentiveness can win out. None of the information discussed here should be considered legal advice nor guarantee any legal outcome. It is for your educational benefit, given that the foreclosure and eviction moratoriums are being lifted across the country soon.
JUNK LOAN POOL AND ITS TRUSTEE GET TOSSED IN MAINE CASE
Due to multiple errors in civil procedure, the Maine Supreme Judicial Court has affirmed the judgment of the lower courts that LSF9 Master Participation Trust, the infamous junk pool run by the minions at Caliber Home Loans, acting under the orders of U.S. Bank who claims to be the loan pool’s “trustee”, had no standing to proceed against a Maine homeowner (James D. Keefe) in a foreclosure action. Because this junk debt pool (of allegedly defaulted loans) generally misrepresents the fact they’re a true REMIC, the author refers to them as the LSF9 Masturbatory Participation Trust.
READ THE CASE HERE: US Bank Trust NA v Keefe, 2020 ME 104 (Aug 13, 2020)
The first apparent mistake U.S. Bank’s attorneys made (if you can believe U.S. Bank actually retained the attorneys in the first place … probably NOT) is relying on an erroneous fee figure published in the Maine Judicial Branch materials, remitted an insufficient filing fee with its notice of appeal in trying to reverse the lower court’s judgment in favor of Keefe. Because the court Clerk refused to accept the filing, procedurally, when the attorneys figured out they’d screwed up, they failed to file a motion to the trial court seeking an extension of time to file the appeal and thus, their filing was outside the 21-day window for filing the appeal.
This is a key reason WHY it’s so important to focus on what just what you’re doing, but what the other side ISN’T DOING. If you’re going to win a case, you have to pay attention to the bigger picture, which operates much like a chess game. Plan on the other side’s arrogance in attempting to ballyhoo the court with bullshit and file documents out of time, thinking it can get away with a simple apology while asking the court’s indulgence to let the foreclosure appeal proceed. You can bet if it was on you to adhere to the filing deadlines, your opponent would hold you to it. Turnabout is fair play. This 6-page case talks all about the rules of appellate procedure, which you have to study (in your case) and be prepared to act on, just as you would if the foreclosure filing in the lower court was insufficient.
Lesson learned …
Examine what the other side has done in filing a foreclosure action against you, starting with the chain of title and moving forward through the rules of civil procedure, which includes how much of a fee was paid to file. Also look to see if the document (deed of trust or mortgage) they’re trying to enforce was legitimately recorded (meaning all of the required transfer and intangibles taxes were paid at the time of recording), because THAT ANGLE has also been tried in the courts successfully (in failing to pay the required taxes, rendering the document void because the taxes were somehow NOT paid at the time of recording).
BONUS CASE #1:
The debacle over student loans continues to play out in the courts with this latest precedential ruling out of the U.S. Third Circuit Court of Appeals:
READ THE CASE HERE: In re Natl Collegiate Student Loan Trusts, 3rd App Cir No 18-3327 (Aug 19, 2020)
As the Court explains in a “Reader’s Digest” view, it becomes easy to understand HOW student loans are securitized. What? You didn’t know that student loans are securitized? Geez. I thought you did. For those in the know, so are car loans, credit cards … everything but the weather can be securitized as long as investors are willing to take a gamble. Before you get too excited, read the last paragraph (on Page 6) before you get to the Factual Background. Notice the court made reference to “self-dealing”? This is probably the BEST CASE (in the author’s humble non-lawyer opinion) to cut your teeth on how student loans are securitized and how to spot the flaws in the debt collection processes.
BONUS CASE #2:
And just when you thought that U. S. District Court judges deemed themselves infallible (again) by ruling against Plaintiffs in FDCPA cases … think again. This case is all about “DEFINITIONS” in contract law:
This case further demonstrates the bias in the lower federal district courts and why appeals are necessary. For those trying to cut their teeth on HOW the Fair Debt Collection Practices Act operates, look at the definitions within the statute itself and understand that ALL definitions apply, including what defines a “transaction”, a “contract”, an “obligation” … and a “debt”. You’ll find most of the “red meat” in the “Discussion” section. And weirdly, this case revolves around a scenario arising out of Hurricanes Katrina and Rita in 2005! While upfront, the case looks like it favors the Plaintiff, look more at the Definitions as a learning curve.
AND IN OTHER NEWS …
The eviction moratorium has ended in California, post-lawsuit!
READ THE STORY HERE: (hat tip to “Epoch Times”)
Sadly, many tenants are now going to be facing “UD” (unlawful detainer) actions. No more free rent. No more “entitled living”. But, but, but …
This means the courts are going to be jammed with thousands of cases and judges are going to be quickly moving things along to clear their dockets. This is a dangerous issue especially if everything operates virtually over Zoom or some other device that makes it difficult to get a word in edgewise. If it’s a foreclosure issue, you have to be especially careful of the documents that were recorded in the land records and how you posture your response to the pleadings. In California, you can attempt to demur the Plaintiff’s pleadings if you can show there’s no basis in fact for the eviction, based on evidence you’ve uncovered with suspect public record documents. The Courts may ignore you too. This of course will probably only apply to roughly 3% of those who care to do their research. Like the foreclosure crisis of 2008, the other 97% will just cut and run like they did when the foreclosures began. It is unknown HOW MANY detainer actions are going to clog the Courts in California yet.
Let the games begin.