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This is not legal advice on your case. Consult a lawyer who is licensed in the jurisdiction in which the transaction and /or property is located.
This is a case we will be talking about tonight on the Neil Garfield Show. Appellate courts are starting to apply “science” to their ruling and they are rejecting the sloppy application of general concepts like “the holder.” If they had done this to begin with several million foreclosures would never have happened. Bravo to Matthew Bavaro and Laura Hoy of Loan Lawyers, LLC in Plantation Florida — my old stomping ground.
Here the 4th DCA not only reversed but ordered judgment in favor of the homeowner — no new trial. Chase made the usual argument about being a wholly owned subsidiary of JP Morgan Chase, attempting to blur the lines of legal entities. You can’t pick up one end of a stick without picking up the other. If you want to say that Chase Bank is a separate entity then they will be treated as a separate entity. And THAT means if you want to say that a loan was sold from Chase to JPMorgan Chase the rules are the same as any other sale — contract, consideration, offer and acceptance. This is the first case I have seen where that transfer was not “presumed” based upon absolutely no facts.
And the other thing that the 4th DCA caught was the tactic of using a document but “forgetting” to proffer it into evidence. This has been a successful tactic for servicers and banks for the last 10 years. The reason for it is that they get to use something from a document in court but they are not stuck with rest of the contents. The PSA is one such example and powers of attorney and assignments and endorsements lead the list. So they get the advantage of pretending it is in evidence just like they are pretending to be a lender or an authorized representative of the lender. The 4th DCA caught them on this and said if you don’t introduce it in evidence (allowing for inspection and cross examination on the WHOLE DOCUMENT) then no judgment can be based upon it. Such a document is not “competent evidence.”
And it is time to review the difference between information and evidence, data and proof. One may be very persuasive but irrelevant and the other might be relevant and not persuasive. Tune in tonight on the Neil Garfield Show.
Filed under: foreclosure