March 20, 2013

The foreclosure world has been the subject of some genuinely strange events lately.

We were advised that a judge granted summary judgment in a case where the homeowner never had a mortgage loan with the foreclosing bank and the prior mortgage was never assigned or transferred to the foreclosing bank. Another case has come to us where the homeowner simply asked the bank to change the payment due date on the mortgage, having never been late or requested any type of modification to the loan. The bank told the homeowner that they had to be 3 months behind to change the payment date, and then declared a “default” and foreclosed.

In another case, a Judge denied a temporary restraining Order although admitting the the homeowner showed irreparable harm without the sale being stopped and that the Defendants had been put on notice of the request, yet denied the Motion for a lack of explanation as to why notice to the Defendants was not needed (so notice was provided and admitted but the alleged problem was the lack of a reason why notice was not needed). In yet another case, a Judge granted summary judgment by “rejecting” conflicting material fact information as to an assignment, thereby acting as factfinder on summary judgment (which a court cannot do).

The result is that the appellate courts are going to become busier, as the trial courts which engage in these actions are causing otherwise unnecessary appeals to be filed. (Generally, if a summary judgment is denied, there is no appeal of such a denial and the matter proceeds to trial, where the grant of a summary judgment is appealable). The silver lining in this is that there will be appellate law clarifying the issues which will be binding on the trial courts in future cases. At least that is the presumption, which is not necessarily guaranteed.

We had a previous case in Arizona where the Supreme Court of Arizona had issued an opinion dead-on in the homeowner’s favor on a specific issue. The trial Judge’s response was “that is not the law in my court.” In another case in Oregon, the trial Judge asked where the Oregon law was supporting the homeowner’s position on certain issues. When the judge was provided with the Oregon law and statutes, the Judge said “not in my book it’s not”. We appealed this case and won, reversing the summary judgment.

Thankfully, most Judges in the cases we have are patient and listen to all of the arguments and follow the law, and when there is no law on an issue, defer to the side of not granting summary judgment. Time will tell is this continues, but meanwhile the appeals are being filed.

Jeff Barnes, Esq.,