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I think more importantly is this statement:
"23. Thus, this may be but an ephemeral victory for homeowner. Absent adjudication on the underlying indebtedness, the dismissal cannot cancel her obligation arising from an authenticated note, or insulate her from foreclosure proceedings based on proven delinquency. "
The homeowner may have won the battle, but not the war. It appears they can refile for foreclosure and will likely suceed this time.
It does, however, set a precedent in Vermont which forces all MERS mortgages to show proper endorsements for all transfers in order for a foreclosure to proceed properly.
the more important 'judgement' is going on with 50 State Attorney Generals and the Big Banks, a stitch up job with the banks paying the AG's $20+ billion in a brown envelope in plain sight. This risable establishment broking arises for one very simple reason:
Monopolists and market riggiers cannot ply their big rotten trade dealing with many moving targets (homeowners). This is why MERS was set up in the first place. It allowed them to easily/lazily mass-produce mortgages usurping State property laws and not waste too much time and money. Big Corporations treat you like a number because they cannot operate treating you like a human being or on an individual human relationship basis. They need to reduce you to numbers so they can get through the big numbers (volume). Hence the need for MERS
Now the AAA-rated (sugar coated) turds have hit the fan these same Big Banks (monopolists) need a second easy/lazy, non-time consuming, non-expensive solution... the Big Banks cannot afford the complexity, expense or time of fighting individual homeowners which would bog them down completely. They need to reduce this to a big fat easy solution number or they're fucked. This is the Achillies Heal of all Big Corporations. So you can see the desperation for an easy answer single digit deal with the sole (monopoly) authority of the AG's versus having to deal/settle with tens of thousands of individual cases
4CF and his fellow crusaders need to attack this Big Corporate weakness
The AG deal with the Big Banks was not consulted, discussed or negotitaed with the parties whose contract it is, the individual homeowners. The AG's have no legitimacy redefining a contract or its legal understandings at the time between 2 parties when 1 of those 2 parties has not been consulted. That is a travesty of contract law
If the AG's pass it they have effectively changed the Law (moved the goalposts) after the contracts with homeowners were signed. I do not know the legal precidence for this but to my mind this invalidates all the individual contracts as one contractual party has not been included or consented to this change of the contractual basis
The AG's will argue they have the 'authority' to change the Law as they see fit. Right!! But they do not have any authority to change the original terms of the contracts or the basis of the Law as it stood previously and still consider the homeowners bound to uphold the contract
Homeowners should with any unconsenting change to the basis of the cotract be able to null and void it and if they so wish hand over the keys and demand their payments back
Leave it to Vermont... of course.
The Banksters must be furious - between Sanders revelations regards The Fed's 16 T global bail-out and this stand-up for the law.
I suppose blowing up Vermont would anger Canada... so that's out of the question (we need Looney cooperation).
Homeowner is still on the hook for the note, if the bank can figure out how to connect the dots.
Question for Bankie is whether it costs more to connect than what the balance of the loan is worth? Better to pay her legal then throw her a bone to see if she will voluntarily dispossess.
Certainly no 'victory' for homeowners but it does reestablish some order in the dispossess process.
Ok... so, to all the foreclosure attorneys out there... sue on the note AND mortgage... if you lose on the mortgage, move forward with the note...
Also thought about trying to get ride of my mortgage, but found some really bad case law... where MERS was allowed to assign its interests... and, maybe the court didn't have all of the arguments in front of it that other courts have had, but the language of the mortgage in that case was exactly like mine... essentially the phrase is in the recitals (I suspect a "form" mortgage), but states that MERS may assign its interest to whomever... I find it a stretch to think that by a mortgagor signing the document, it gives MERS the right to assign anything between mers and the original lender, but apparently courts are finding in favor of MERS in this regard...
At any rate, the moral of the story? You get to kick the can a few more months, but no free house... live rent free for as long as you can and file for bk when they force your hand... seems simple enough.
Always makes my day when a master of the universe takes a judicial kick to the cajones. However, the homeowner is not yet out of the woods, "Absent adjudication on the underlying indebtedness, the dismissal cannot cancel her obligation arising from an authenticated note, or insulate her from foreclosure proceedings based on proven delinquency." Watch your back lady, those pricks at US Bank will jump at first opportuity.
Too much legalese, this whole process reeks of sham and deceit. Needs to be simplier, like I sell to this person this property, signed, the seller. Why it takes $4,000 to close a housing deal is beyound me.
Bingo. You'll get your wish soon enough when land sale contracts are the norm due to credit markets being damaged... But yes, it's a simple function of easy/cheap credit... once that dries up, your crazy fees will dry up too... just like I can't fathom that real estate agents are particularly necessary when you can review pictures, take a virtual tour, go to the house if necessary, and hire a home inspector to look for the things you don't see... all unnecessary middle men...
I mean, you have to charge something for originating the note right? The lender isn't going to make anything on servicing the loan or collecting interest... something else which will go away soon enough...
love this line:
While we are sympathetic to the desire to avoid wasteful and duplicative litigation, the source of the unnecessary proceedings in this case was not an overly wooden application of the rules, but US Bank's failure to abide by them. It is neither irrational nor wasteful to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit.
SCOTUS would more than likely side with the big banks.
One step forward . . . hopefully it won't be followed by two steps back. HOMEOWNER ATTORNEYS TAKE NOTE!!!!!
Any appeal to the USSC possible?
Possible, yes. Wanting to see Justice Scalia's opinion saying "The Vermont queer lovers nailed it." not so much.
Maybe they'll do like they did when they overruled the Florida SC and installed Dubya.
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