An appellate court tells the truth about foreclosures: Courts, including appellate courts, are routinely giving banks special privileges…and in doing so creating very dangerous law.
From Spencer v. Ditech:
I write to express my growing unease with what we are saying in foreclosure cases
about proceedings on remand when the plaintiff as appellee in our court has failed to
prove at trial an element of or condition precedent to bringing the foreclosure action.
it seems to reward either (or both) a litigant’s insufficient trial preparation or a strategic
decision that it might be able to convince a court to admit clearly inadmissible
evidence—precisely the kinds of results the general rule against granting a new trial
when a party fails to prove its case the first time around is designed to avoid.
Someday, for instance, a lawyer is going to ask that we apply the some-evidence-no-evidence rule in a garden
variety contract or tort case, a result we may well consider unadvisable. At least on the
basis of what our opinions say, “that is a foreclosure rule” may be the only answer we
are able to give for not extending it. But that answer is not going to be a credible or
persuasive one. Speaking for myself, I would be open to examining these issues in an
appropriate case as a full court with the object of settling on a general approach that we
can apply on a principled basis across cases.
Read the full case here:
