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Foreclosure Defense Florida

Pro Se Homeowner Wins Appeal On Post Dated Assignment!

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  • Stupendous Man says:

    Unfortunately the case is marked ” Not to be Published” and cannot be used as binding precedent in other cases. However, Kentucky Rule of Civil Procedure 76.28(4) has a new provision, (c), which allows the case to be used as persuasive, and states, in pertinent part:

    ” Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court.”

    A few recent cases on point:

    1) ” In conclusion, we turn to a procedural matter. Prior to oral argument, the Commonwealth requested leave to cite an unpublished opinion of this Court which was not final as of the date of oral argument. While a new section has been added to CR 76.28(4) allowing for the citation of unpublished opinions upon a showing that there is no published opinion on point, we read that rule as relating only to unpublished opinions which have become final. Accordingly, the Commonwealth’s motion to cite a non-final opinion is hereby DENIED.” Alexander v Commonwealth, 220 S.W. 3d 704, 2007 Ky. App. LEXIS 95 (Ky. Ct. App. 2007).

    2) ” To our knowledge, there are no published cases dealing explicitly with this question. The Court of Appeals, however, has rendered several unpublished decisions addressing the issue. Pursuant to Kentucky Rules of Civil Procedure (CR) 76.28, we are now permitted to cite such cases for consideration if there are no published opinions that address the same issue.” Eberenz v Commonwealth, 2008 Ky. App. LEXIS 184 (Ky. Ct. App. 2008).

    3) ” We note that parties to this action have cited to unpublished cases failing to meet the requirements of Kentucky Civil Rule 76.28(4)(c). This is particularly true where the parties have cited to unpublished cases from other jurisdictions. Kentucky Civil Rule 76.28(4)(c) only allows citation to unpublished Kentucky appellate opinions rendered after January 1, 2003. Accordingly, those cases cited in the parties’ briefs failing to meet this criteria were not considered in deciding this matter.” Ann Taylor, Inc. v Heritage Ins. Servs., 2008 Ky. App. LEXIS 215 (Ky. Ct. App. 2008).

    I expect this opinion will be cited for consideration, pursuant to this rule, in the very near future.

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