I appreciate everyone’s support and good wishes after I announced I lost a summary judgment hearing earlier this week. A summary judgment hearing was held on a rocket docket and Summary Judgment was granted after my objections during the hearing and despite the fact that I had two detailed Objections to the summary judgment filed. I believe the good trial judge erred in granting Summary Judgment, so I’ve filed a Motion for Re-hearing of the Summary Judgment.
Several important lessons learned from this experience. First, always make your objections in writing in advance of the hearing. Next, always have a court reporter present at all hearings. Finally, even when you follow these important rules, and do not prevail, DON’T GIVE UP. Rehearing is the first line of attack, then if this doesn’t work, (if you’ve followed the advice above), you should have the tools necessary for a solid appeal.
And now, just released, the Taylor appeal decision….not good news,
To my untrained, non-lawyerly mind, the decision out of the 5th means that we darned well better attack those AOMs.
Per the 5th, the note, payable to a stranger to the lawsuit & without any endorsement whatsoever is adequate, BUT the AOM is the fulcrum of a foreclosure then the AOM is fair game for heavy discovery and depos. When mills try to say “Oh, we are not traveling on the AOM, only on the endorsed in blank note, we might be able to reply, “Not according to the 5th”?
Am I even close?
Wow. I watched the oral arguments of this and felt it was not going to go well. This allegations contained in Taylor concerning standing have been a big part of the defenses filed in several suits. Now that it is the law in this district, the district I practice in, this could be devastating for the defense of these suits.
I am stunned.
Just my 2 cents matt. This decision is a torture of the english language. The way i see , the court is basically saying because the assignment had the words “mortgage AND note” MERS assigned it’s rights as “non-holder in possession” to Deutsch Bank.
Let’s get to the point though.
Where is the evidence that First Franklin negotiated the note (payable to First Franklin) to MERS ?
Is the deed of trust to be used as an allonge to the note ? That is the only instrument that could be construed to do
Well here’s the plain error.
Even if the Deed of Trust did indicate First Franklin’s interest in the note(however limited) was transferred to MERS ,the Mortgagor can not grant that right.
If this was good law then you would have the verbiage of the Deed of Trust controlling who the payee on the note is instead of what it says on it’s face.
The deed of trust follows the note not the other way around.
Matt, if losing on the circuit/lower court level, do you stand a better chance in an appeals court? It would seem the appeals courts are not as log jammed as our local courts and the appeal judges might just take the time to decide on a case on the merits.
Since the hide the note/MERS system is so complex and very difficult to understand, it might be that the lower courts not only don’t understand it, but are so inundated with cases, like you indicate, a rocket docket, that they are just granting summary judgment and ruling in favor of the banks just to get their dockets cleared.
The problem I see is that Taylor agreed he was in default and he agreed that an assignment had been made. Two HUGE mistakes. The bank must prove they are the holder with the original wet ink signature note and allonge showing the transfer: stamped with an accompanying signature by each bank in the trail to the REMIC. An Assignment of mortgage is not proof that the note was properly securitized. The note, minus the endorsements and allonge is defective and void on it’s face. I’m sure there were many other problems with Taylor’s pleadings because this case was his to win.