|
NY JUDGE DENIES 127 FORECLOSURES
From: "Private Attorney General" <justice0927@sbcglobal.net>
Date: December 17, 2010 12:22:03 PM PST
To: "Private Attorney General" <justice0927@sbcglobal.net>
Subject: NY JUDGE DENIES 127 FORECLOSURES
MIND-BLOWING!! NY JUDGE DENIES 127 FORECLOSURES PURSUANT TO
ADMINISTRATIVE
ORDERS FROM CHIEF JUDGE, ROBO SIGNING
Pursuant to an Administrative Order of the Chief Judge, dated October
20, 2010, all residential mortgage foreclosure actions require an
affirmation from the attorney representing the plaintiff/lender/bank,
as stated in the affirmation attached to this order, that he/she
has inspected all documents.
The plaintiff
is also directed on any future application to
provide a copy of this Court's order, the prior application/motion
papers
and an updated affidavit of regularity/merit from the
plaintiff/lender/bank's representative that he/she has reviewed
the file in this case and that he/she documents that all paperwork
is correct. The plaintiff/lender/bank's representative
shall also
provide in said affidavit of regularity her/his position, length
of service, training, educational background
and a listing of the
documents and financial records reviewed substantiating the review
of the amounts owed. The
affidavit should also include that she/he
has personally reviewed both the mortgage and the note and any
assignments
for accuracy.
The plaintiff bears the burden of proof in a summary judgment
proceeding and judgment will only
be awarded when all doubt is
removed as to the existence of any triable issue of fact. Under
the present circumstances,
where there have been numerous instances
alleged as to "robo" signing of documents and a failure to attest
to the accuracy of documents in mortgage foreclosure proceedings,
the plaintiff must prove its entitlement to foreclose
on a mortgage
as a matter of law by establishing the regularity and accuracy of
the financial documentary evidence
submitted and the Court will be
scrutinizing all documents for accuracy.
The foregoing constitutes the decision
of the Court.
<http://stopforeclosurefraud.com/2010/12/16/mind-blowing-ny-judge-denies-127-foreclosures-pursuant-to-administrative-orders-from-chief-judge-robo-signing/>
Foreclosure Crisis Outlined By Florida AG <http://atomstack.com/foreclosure-crisis-outlined-simply-by-floride-ag/228430>
The Atom Stack Tribune
Foreclosure Crisis Outlined Simply By Floride AG
By Woody Thomas on
January 9th, 2011
Florida is in many ways at the epicenter of the foreclosure
crisis (along with Arizona,
Nevada, and California). The housing
market in Florida is arguably one of the worst in the country,
and the state
has become notorious for its so called "rocket
docket". And so, one day after a settlement between Bank
of America, JP Morgan Chase, Citigroup, Wells Fargo and Ally
Financial with AG's across the U.S. in the foreclosure
epidemic,
Florida Attorney General Pam Bondi released a highly critical
presentation detailing legal issues surrounding
the crisis. The
Document Gives Clear Examples The report entitled "Unfair,
Deceptive and Unconscionable Acts
in Foreclosure Cases," is an
easy to understand document that describes what we have in a little
simpler terms,
using examples of documents and explaining the issues
prevalent in each. The comprehensive presentation was compiled
in
exploration of foreclosure malpractice and condemns banks, mortgage
servicers, and law firms for contributing
to the crisis by cutting
corners. Although not aimed at a specific case, four of Florida's
largest foreclosure law
firms are under investigation by the
state. Where To See It, And How The website for the document is here:
<http://www.scribd.com/doc/46278738/Florida-Attorney-General-Fraudclosure-Report-Unfair-Deceptive-and-Unconscionable-Acts-in-Foreclosure-Cases>.
And for those that don't know, here's how to examine the document
in it's entirety. A small pop-up tool
bar will appear at the bottom
of your browser when the page opens, at least in my Firefox window
it does it at the
bottom. There are several buttons on the tool bar
resembling the forward and back buttons in your browser�"you
use these to look through the article.
No Solutions Proposed Though What most folks would like to see
is
an actual solution to the problem, a plan to make sure these
abuses do not occur in the future, and what type of punishment
will
be handed out to those who violated procedure. None of this is in
the report. Possibly the Florida AG's office
doesn't want to tip
its hand, I don't know, but it will be interesting to follow this
going forward to see if any
civil or criminal suits result from
this investigation.
Copyright © The Atom Stack Tribune | All
rights reserved.
/////
Unconscionable. Contracts. A contract which no man in his
senses, not under delusion,
would make, on the one hand,
and which no fair and honest man would accept, on the other. 4
Bouv. Inst. n. 3848.
Cf. Contra bonos mores; Derision; Embarrassment;
Illusory contract; Inequity; Lesion; Offer and acceptance; Shame;
Unconscionable contract or term; Unequal yoke;
ORS 72.3020 [1961 c.726 s.72.3020] U.C.C. § 2-302 (Unconscionable
Contract or Clause) (1) If the court as a matter of law finds the
contract or any clause of the contract to have been
unconscionable at
the time it was made the court may refuse to enforce the contract,
or it may enforce the remainder
of the contract without the
unconscionable clause, or it may so limit the application of any
unconscionable clause
as to avoid any unconscionable result. (2)
When it is claimed or appears to the court that the contract or
any clause
thereof may be unconscionable the parties shall be
afforded a reasonable opportunity to present evidence as to its
commercial setting, purpose and effect to aid the court in making
the determination.);
ORS 83.150 (Unenforceable
contract provisions); W.L. May
Co. v. Philco-Ford Corp., 273 Or 701, 543 P2d 283 (1975);
Restatement (Second)
of Contracts § 2 (Promise; Promisor; Promisee)
cmt (e) (Illusory promises; mere statements of intention) (Words
of
promise which by their terms make performance entirely optional with
the "promisor" whatever may happen,
or whatever course of conduct
in other respects he may pursue, do not constitute a promise.);
Restatement
(Second) of Contracts § 72 cmt d (Unconscionable
and illegal bargains) (The rule stated in this Section does not
require that consideration have an economic value equivalent
to that of the promise. See §79. Nor does the Section
require
that the consideration or the promise be lawful. The problems
raised by unconscionable and illegal bargains
are dealt with
in §208 on unconscionability, Chapter 6 on mistake, Chapter 7
on misrepresentation, duress and
undue influence, and Chapter
8 on unenforceability on grounds of public policy. In addition,
particular types of
bargains which are likely to be unconscionable
are the subject of §§73 and 74.);
Restatement (Second)
of Contracts § 89 cmt b (Performance of legal
duty) (The rule of §73 finds its modern justification in cases
of promises made by mistake or induced by unfair pressure. Its
application to cases where those elements are absent
has been
much criticized and is avoided if paragraph (a) of this Section
is applicable. The limitation to a modification
which is "fair
and equitable" goes beyond absence of coercion and requires an
objectively demonstrable
reason for seeking a modification. Compare
Uniform Commercial Code §2-209 Comment. The reason for modification
must rest in circumstances not "anticipated" as part of the context
in which the contract was made, but a
frustrating event may be
unanticipated for this purpose if it was not adequately covered,
even though it was foreseen
as a remote possibility. When such a
reason is present, the relative financial strength of the parties,
the formality
with which the modification is made, the extent to
which it is performed or relied on and other circumstances may be
relevant to show or negate imposition or unfair surprise. The same
result called for by paragraph (a) is sometimes
reached on the ground
that the original contract was "rescinded" by mutual agreement and
that new promises
were then made which furnished consideration for
each other. That theory is rejected here because it is fictitious
when the "rescission" and new agreement are simultaneous, and because
if logically carried out it might uphold
unfair and inequitable
modifications.);
Restatement (Second) of Contracts § 208 (Unconscionable contract
or term) (If a contract or term thereof is unconscionable at
the time the contract is made a court may refuse to enforce
the
contract, or may enforce the remainder of the contract without
the unconscionable term, or may so limit the
application of any
unconscionable term as to avoid any unconscionable result. Comment:
c. Overall imbalance. Inadequacy
of consideration does not of itself
invalidate a bargain, but gross disparity in the values exchanged
may be an
important factor in a determination that a contract is
unconscionable and may be sufficient ground, without more, for
denying specific performance. See §§79, 364. Such a disparity may
also corroborate indications of defects
in the bargaining process,
or may affect the remedy to be granted when there is a violation of
a more specific rule.
Theoretically it is possible for a contract
to be oppressive taken as a whole, even though there is no weakness
in
the bargaining process and no single term which is in itself
unconscionable. Ordinarily, however, an unconscionable contract
involves other factors as well as overall imbalance.);
Restatement (Second) of Contracts § 208 (d) (Weakness
in the
bargaining process) (A bargain is not unconscionable merely because
the parties to it are unequal in bargaining
position, nor even
because the inequality results in an allocation of risks to the
weaker party. But gross inequality
of bargaining power, together
with terms unreasonably favorable to the stronger party, may confirm
indications that
the transaction involved elements of deception or
compulsion, or may show that the weaker party had no meaningful
choice, no real alternative, or did not in fact assent or appear
to assent to the unfair terms. Factors which may contribute
to a
finding of unconscionability in the bargaining process include the
following: belief by the stronger party
that there is no reasonable
probability that the weaker party will fully perform the contract;
knowledge of the
stronger party that the weaker party will be unable
to receive substantial benefits from the contract; knowledge of
the stronger party that the weaker party is unable reasonably to
protect his interests by reason of physical or mental
infirmities,
ignorance, illiteracy or inability to understand the language of
the agreement, or similar factors.)
Restatement (Second) of Contracts § 364 (Effect of unfairness)
(1) Specific performance or an injunction
will be refused if such
relief would be unfair because (a) the contract was induced by
mistake or by unfair practices...or
(c) the exchange is grossly
inadequate or the terms of the contract are otherwise unfair.
Shroyer v. New Cingular
Wireless Servs., Inc., No. 06-55964
(9th Cir. 08/17/2007) (In a class action suit alleging
plaintiffs suffered injuries
as a result of the 2004 merger
between Cingular Wireless and AT&T, an order compelling
arbitration of the action
is reversed where: 1) a class
arbitration waiver in New Cingular Wireless Service's standard
contract for cellular
phone services is unconscionable under
California law, and thus, unenforceable; and 2) the Federal
Arbitration Act
does not preempt a holding that the waiver is
unenforceable.);<http://caselaw.lp.findlaw.com/data2/circs/9th/0655964p.pdf>
Federal Trade Comm'n. v. Cyberspace.com LLC, No. 04-35428, 04-35431
(9th Cir. 07/13/2006) (A certain
mail solicitation for internet
service, which included a solicitation check, was deceptive as a
matter of law within
the meaning of the Federal Trade Commission Act
(FTCA). <http://caselaw.lp.findlaw.com/data2/circs/9th/0435428p.pdf>
Circuit City Stores, Inc. v. Mantor, No. 02-55230 (9th
Cir. 07/22/2003) (When a party to a contract possesses
far greater
bargaining power than another party, or when the stronger party
pressures, harasses, or compels another
party into entering
into a contract, " oppression and, therefore, procedural
unconscionability, are present.'
" See Ingle, 328 F.3d at 1172
(quoting Ferguson, 298 F.3d at 784). A meaningful opportunity to
negotiate or
reject the terms of a contract must mean something
more than an empty choice. At a minimum, a party must have
reasonable
notice of his opportunity to negotiate or reject the
terms of a contract, and he must have an actual, meaningful,
and reasonable choice to exercise that discretion. We turn now
to consider whether the arbitration agreement is substantively
unconscionable. Substantive unconscionability concerns the " terms
of the agreement and whether those terms are
so one-sided as to
shock the conscience.' " Ingle, 328 F.3d at 1172 (quoting Kinney, 70
Cal. App. 4th at 1330,
83 Cal. Rptr. 2d at 353 (citations omitted)).
<http://caselaw.lp.findlaw.com/data2/circs/9th/0255230p.pdf>
Ingle v. Circuit City Stores, Inc., 2003 WL 21058241 (9th
Cir. 05/13/2003) (Unconscionability refers
to "an absence of
meaningful choice on the part of one of the parties together with
contract terms which are
unreasonably favorable to the other
party." A & M Produce Co. v. FMC Corp., 135 Cal. App. 3d 473,
486 (1982);
see also U.C.C. § 2-302; Cal. Civ. Code § 1670.5;
Restatement (Second) of Contracts § 208
(1981).) (A contract is
oppressive if an inequality of bargaining power between the parties
precludes the weaker
party from enjoying a meaningful opportunity
to negotiate and choose the terms of the contract.);
<http://caselaw.lp.findlaw.com/data2/circs/9th/9956570p.pdf>
Miller v. C.C. Meisel Co., Inc., 183 Or App 148, 51
P3d 650 (2002) ([T]he law does not protect parties
who enter into unwise agreements that are otherwise
enforceable.);<http://www.publications.ojd.state.or.us/A109804.htm>
No Dimensions Figure Salons v. Becerra, 1973, 340 N.Y.S.2d 268,
73 Misc.2d 140 (Term "caveat emptor"
has been eroded by the Uniform
Commercial Code; no longer can a seller hide behind it when acting
in an unconscionable
manner.);
Jefferson Credit Corp. v. Marcano, 302 N.Y.S.2d 390, 60 Misc.2d 138
(1969) (Application of doctrine
of caveat emptor presupposes some
parity or equality between the bargaining parties.);
Hazel-Atlas Glass Co.
v. Hartford Empire Co., 322 U.S. 238,
88 L. Ed. 1250, 64 S. Ct. 997 (1944) (But where the occasion has
demanded,
where enforcement of the judgment is 'mani- [322 U.S. 238,
245] festly unconscionable', Pickford v. Talbott, 225 U.S.
651,
657, 32 S.Ct. 687, 689, they have wielded the power without
hesitation.(1)); http://laws.findlaw.com/us/322/238.html
Pope Mfg. Co. v. Gormully, 144 U. S. 224, 236-237 (1892) (But whether
this contract be absolutely void as
contravening public policy or
not, we are clearly of the opinion that it does not belong to that
class of contracts
the specific performance of which a court of
equity can be called upon to enforce. To stay the arm of a court
of
equity from enforcing a contract, it is by no means necessary
to prove that it is invalid; from time immemorial it has
been the
recognized duty of such courts to exercise a discretion, to refuse
their aid in the enforcement of unconscionable,
oppressive, or
iniquitous contracts, and to turn the party claiming the benefit
of such contract over to a court
of law. This distinction was
recognized by this Court in @ 30 U.S. 276, wherein Chief Justice
Marshall says: "The
difference between that degree of unfairness
which will induce a court of equity to interfere actively by setting
aside a contract and that which will induce a court to withhold its
aid is well settled. 10 Ves. 292; 2 Coxe's Cases
in Chancery 77. It
is said that the plaintiff must come into court with clean hands,
[144 U. S. 237] and that a
defendant may resist a bill for specific
performance by showing that, under the circumstances, the plaintiff
is
not entitled to the relief he asks. Omission or mistake in the
agreement, or that it is unconscientious or unreasonable,
or that
there has been concealment, misrepresentation, or any unfairness,
are enumerated among the causes which
will induce the court to
refuse its aid."); http://supreme.justia.com/us/144/224/case.html
United States v. 1,960 Bags of Coffee, 12 U.S. (Cranch) 398, 403,
3 L.Ed. 602 (1814) (Never applies to secret
liens.);
http://www.justia.us/us/12/398/case.html
Cf. Caveat emptor; Scicntia utriusque par pares contrahentes facit;
Unconscionable trade tactics. ORS
72.3020 [1961 c.726 s.72.3020]
U.C.C. § 2-302 (Unconscionable Contract or Clause); ORS 83.150
(Unenforceable
contract provisions); ORS 646.607 [1977 c.195 s.4;
1979 c.505 s.1] (Unconscionable tactic or failure to deliver, or to
refund payment for undelivered, real estate, goods or services as
unlawful practice); ORS 646.608 (Unlawful business);Parrott
v. Carr
Chevrolet, Inc., 156 Or App 257, 965 P2d 440 (1998) aff'd. 331 Or
537, 17 P3d 473
(2001); <http://www.publications.ojd.state.or.us/S45916.htm> ;
W.L. May Co. v. Philco-Ford Corp., 273 Or 701, 543 P2d 283
(1975); Ting v. AT&T, No. 02-15416 (9th Cir.
02/11/2003)
<http://caselaw.lp.findlaw.com/data2/circs/9th/0215416p.pdf>
Unlawful Trade Practices Act (UTPA). ORS 646.607, et seq. (UTPA);
et seq. http://landru.leg.state.or.us/ors/646.html
1. Elements of a UTPA case. Plaintiffs need not prove the elements
of common law fraud to prevail on a UTPA
claim. Banks v. Martin,
78 Or App 550; State ex rel Redden v. Discount Fabrics, 289 Or 375
(1980). "The civil
action authorized by ORS 646.638 is designed
to encourage private enforcement of the prescribed standards
of trade
and commerce in aid of the act's public policies
as much as to provide relief to the injured party." Weigel
v.
Ron Tonkin Chevrolet Co., 298 Or 127, 134 (1984). 2. Privity
issues. "There is no requirement that the representations
which
constitute a wilful violation of the Act be made to the injured
consumer." Raudebaugh v. Action Pest
Control, Inc., 59 Or App 166,
171 (1982). "As the majority sees it, then, the UTPA requires only
that there
be a causal connection between the unlawful act and
the harm; no vendor-vendee or other seller-consumer relationship
between the parties is necessary." 59 Or App at 175. Gillette,
J., dissenting. Lawyers. See, Short v. Demopolis,
103 Wash 2d
52, 61 (1984: Washington's Consumer Protection Act applies to
the "entrepreneurial aspects of the
practice of law"); Eriks
v. Denver, 118 Wash 2d 451, 455 (1992: Washington CPA applicable
to lawyer who concealed
conflict of interest in 'living trust'
transactions). Hedrick v. Spear, 138 Or App 53 (1995): Oregon
attorney named
as defendant in a UTPA counterclaim -- apparently
raised no defense based on status as an attorney). Ascertainable
Loss: Plaintiff "is not required to prove the amount of ascertainable
loss in order to recover nominal damages
in a claim for unlawful
trade practices." Hedrick v. Spear, 138 Or App 53, 57 (1995), citing
Scott, emphasis
in original. Cf. McCulloch v. Price Waterhouse LLP,
157 Or App 237, 252, 971 P2d 414 (1998), rev den328 Or 365 (1999);
http://159.121.112.45/A95172.htm ; Parrott v. Carr Chevrolet, Inc.,
156 Or App 257, 965 P2d 440 (1998) aff'd. 331 Or 537, 17 P3d 473
(2001);<http://www.publications.ojd.state.or.us/S45916.htm>
Ascertainable loss is necessary under this section to bring
individual action to recover damages. Scott
v. Western Int. Sales,
Inc., 267 Or 512, 517 P2d 661 (1973);
The making of loans is not "sale or offering
for sale" of goods
or service or "the conduct of any trade or commerce" under
the Unlawful Trade
Practices Act. Haeger v. Johnson, 25 Or App
131, 548 P2d 532 (1976) This section should apply only to those
unlawful
practices which arise out of transactions which are at
least indirectly connected with ordinary and usual course of the
defendant's business, vocation or occupation. Wolverton v. Stanwood,
278 Or 341, 563 P2d 1203 (1977) Action could not
lie where no
assertion was made that particular repair services performed on
automobile were performed according
to any particular standard of
quality. Denson v. Ron Tonkin Gran Turismo, Inc., 279 Or 85, 566 P2d
1177 (1977) Misrepresentations
of offering prices are not explicitly
prohibited by this section. Denson v. Ron Tonkin Gran Turismo,
Inc., 279 Or
85, 566 P2d 1177 (1977) Seller's misrepresentation as
to title or ownership of automobile was not misrepresentation of
"characteristics . . . or qualities" of goods within meaning of this
section. Chamberlain v. Jim Fisher Motors,
Inc., 282 Or 229, 578 P2d
1225 (1978) In action for personal injuries sustained in automobile
accident in which
plaintiff alleged dealer violated this section
in representing that car had good brakes, contention of dealer that
"private remedy" conferred on consumers by Uniform Trade Practices
Act was not intended to create new cause
of action for personal
injury was correct. Gross-Haentjens v. Tharp, 38 Or App 313, 589
P2d 1209 (1979) When federal
and state law required contractor
to inform homeowner of right to rescind contract, representation
by contractor
that homeowner had no right to rescind was unlawful
practice under this section and no proof of justifiable reliance
was
required. Tri-West Const. v. Hernandez, 43 Or App 961, 607 P2d 1375
(1979), Sup Ct review denied
Furnishing
contract for sale of automobile to buyer which indicated
that vehicle was new rather than a demonstrator was sufficient
representation that vehicle was new under this section even though
buyer saw automobile's odometer reading. Searcy
v. Bend Garage Co.,
286 Or 11, 592 P2d 558 (1979) Under former version of this section
representation need not be
of material nature. Searcy v. Bend Garage
Co., 286 Or 11, 592 P2d 558 (1979) Demurrer to complaint alleging
"false
or misleading representations" by defendant regarding
discount fee in transaction involving government insured loan
to
purchaser of plaintiffs' house was properly sustained, because
Unfair Trade Practices Act does not apply to loans
or extensions
of credit. Lamm v. Amfac Mortgage Corp., 44 Or App 203, 605 P2d
730 (1980) Where defendant, a denturist,
advertised his services
without any indication that he was not a dentist or acting under
dentist's supervision,
advertisement constituted unlawful trade
practice under this section since at time of advertisement only
dentist
or denturist under direction of dentist could offer denture
services. Terry v. Holden-Dhein Enterprises, Ltd., 48 Or
App 763,
618 P2d 7 (1980), Sup Ct review denied
Misrepresentations as to age and amount of use made during
sale of
hay baler were not covered by this section. Miller v. Hubbard-Wray
Co., 52 Or App 897, 630 P2d 880 (1981),
Sup Ct review denied,
as modified by 53 Or App 531, 633 P2d 1 (1981) Mere fact that
State Board closely supervises
profession of dentistry does not
lead to conclusion that consumers who are measurably damaged by
dentist's actions
are prohibited from suing under Trade Practices
Act. Investigators, Inc. v. Harvey, 53 Or App 586, 633 P2d 6 (1981)
Where testimony established that value of mobile home plaintiff
purchased from defendant would be substantially decreased
if it
had to be moved, permanency of location was both a "characteristic"
and a "quality" under
this section and failure to communicate fact
that mobile home park where mobile home was located was likely
to be
sold constituted false representation of characteristic or
quality. Caldwell v. Pop's Homes, Inc., 54 Or App 104, 634
P2d 471
(1981) There is no requirement that representations constituting
willful violation of Act be made to injured
customer. Raudebaugh
v. Action Pest Control, 59 Or App 166, 650 P2d 1006 (1982) Facts
that car sold as new had not
been previously titled, licensed or
registered and that plaintiff received new car rebate and warranty
are factors
for trier of fact to consider but are not in themselves
determinative of question whether car that had been previously
subject to conditional sale and delivery was "new" under Unlawful
Trade Practices Act. Weigel v. Ron Tonkin
Chevrolet, 66 Or App 232,
673 P2d 574 (1983), aff'd as modified 298 Or 127, 690 P2d 488
(1984) "Likelihood
of confusion" exists when consumers are likely
to assume that product or service is associated with source other
than actual source because of similarities between two sources'
marks or marketing techniques. Shakey's Inc. v. Covalt,
704 F2d 426
(1983) Where ordinary purchaser was not likely to confuse antifreeze
of plaintiff and defendants, all
of same yellow color and packaged
in F-style jug, there was no likelihood of injury to plaintiff's
business reputation
and no ground for injunctive relief. Union
Carbide Corp. v. Fred Meyer, Inc., 619 F Supp 1028
(1985) Where plaintiff
used car buyer brought action for car
seller's violation of this section, plaintiff did not waive his
claim for
misrepresentation by reason of entry into new agreement
with knowledge of fraud when he signed final sales contract because
signing of contract was culmination of deceptive transaction and not
separate agreement. Teague Motor Company v. Rowton,
84 Or App 72,
733 P2d 93 (1987) Federal Trade Commission statutes and regulations
regarding used motor vehicles
do not preempt this section. Hinds
v. Paul's Auto Werkstatt, Inc., 107 Or App 63, 810 P2d 874 (1991),
Sup Ct review
denied
Where borrowers retain professional services of nonlender to obtain
nonbusiness loan, misrepresentation
of character, quality or cost
of services provided by nonlender is actionable under act. Cullen
v. Investment Strategies,
Inc., 139 Or App 119, 911 P2d 936 (1996),
Sup Ct review denied
Nonlender misrepresentation of loan terms is
not actionable under
act. Cullen v. Investment Strategies, Inc., 139 Or App 119, 911
P2d 936 (1996), Sup Ct review
denied
Failure of merchant to disclose known material defect or
nonconformity may be "concurrent with
tender or delivery" although
occurring at other than precise moment of delivery. Parrott v. Carr
Chevrolet,
Inc., 156 Or App 257, 965 P2d 440 (1998), aff'd 331
Or 537, 17 P3d 473 (2001) Where known supply of goods is limited,
exclusivity is "characteristic" of goods. Feitler v. The Animation
Celection, Inc., 170 Or App 702, 13 P3d
1044 (2000);
http://www.leg.state.or.us/ors/annos/646ano.htm
Federal Trade Comm'n. v. Cyberspace.com LLC, No. 04-35428,
04-35431 (9th Cir. 07/13/2006) (A certain mail
solicitation
for internet service, which included a solicitation
check, was deceptive as a matter of law within
the
meaning of the Federal Trade Commission Act (FTCA).);
<http://caselaw.lp.findlaw.com/data2/circs/9th/0435428p.pdf>
Banks lose key foreclosure ruling in top Massachusetts court
From: Peter Dorsett <peter@theinfowizard.net>
Date: January 07, 2011 15:30:40 PM PST Banks lose key foreclosure ruling in top Massachusetts
court 4:58pm
EST By Jonathan Stempel and Dena Aubin NEW YORK (Reuters) -
In a decision that may slow foreclosures
nationwide, Massachusetts'
highest court voided the seizure of two homes by Wells Fargo
& Co and US Bancorp
after the banks failed to show they held
the mortgages at the time they foreclosed. Bank shares fell,
weighing on
broader stock indexes, on fears the decision could
threaten lenders' ability to work through hundreds of thousands of
pending foreclosures. The Supreme Judicial Court of Massachusetts'
unanimous decision on Friday upheld a lower court
ruling. It is
among the earliest cases to address the validity of foreclosures
done without proper documentation.
That issue, including the use of
"robo-signers" who approved foreclosure documents without reviewing
them,
last year prompted an uproar that led lenders such as Bank
of America Corp, JPMorgan Chase & Co and Ally Financial
Inc to
temporarily stop seizing homes. "A ruling like this will slow down
the foreclosure process" for
lenders, said Marty Mosby, an analyst
at Guggenheim Securities in Memphis, Tennessee. "They're going to
have
to be really precise and get everything in order. It doesn't
leave a lot of wiggle room." Wells Fargo and U.S. Bancorp
lacked
authority to foreclose after having "failed to make the required
showing that they were the holders
of the mortgages at the time
of foreclosure," Justice Ralph Gants wrote for the Massachusetts
court. In a concurring
opinion, Justice Robert Cordy lambasted
"the utter carelessness" that the banks demonstrated in documenting
their right to own the properties. Courts in other U.S. states
are considering similar cases, and all 50 state attorneys
general
are examining whether lenders are forcing people out of their
homes improperly. Friday's decision applies
in Massachusetts,
and need not be followed by federal judges or by courts in other
states. Nonetheless, "it
will be certainly cited as persuasive
authority by anybody in a similar scenario who's trying to hold
onto his home,"
said Robert Nislick, a real estate lawyer at Marcus,
Errico, Emmer & Brooks PC in Braintree, Massachusetts.
LEAVING PAPERWORK BEHIND
Analysts said the decision may also raise the specter that loans
transferred improperly
will need to be bought back. "What they
were doing was peddling these mortgages and leaving the paperwork
behind,"
said Michael Pill, a real estate partner at Green,
Miles, Lipton & Fitz-Gibbon LLP in Northampton, Massachusetts
who
is not involved in the case. The Massachusetts court rejected a
request by the banks to apply the decision only
in future cases,
leaving homeowners already foreclosed upon without a remedy. Gants
chided the banks for ignoring
settled rules in their "rush" to sell
mortgage-backed securities. A spokeswoman for San Francisco-based
Wells Fargo, Teri Schrettenbrunner, had no immediate comment on the
decision. U.S. Bancorp spokesman Steve Dale said
the decision has
no financial impact on the Minneapolis-based bank, which has "no
responsibility" for
the terms or means of transfer of mortgages used
in the securitization trusts it oversees as trustee. Martha Coakley,
Massachusetts' attorney general, praised Friday's decision. "In their
careless and hasty stampede to securitize
loans, the banks moved
at their own peril," she said. "They should bear the brunt and the
cost of the
remedy." In Friday trading, Wells Fargo shares closed
down 65 cents, or 2 percent lower, at $31.50, while U.S. Bancorp
shares fell 20 cents, or 0.8 percent, at $26.09. Bank of America
stock fell 1.3 percent and JPMorgan fell 1.9 percent,
and the
KBW Bank Index fell 0.9 percent. Broader share indexes declined
about 0.2 percent. Bank shares recovered
some losses after it was
revealed that Maine's highest court on Thursday allowed JPMorgan
to conduct a foreclosure
proceeding despite not having possessed
the underlying mortgage until after that process began.
NOT
IMMUNE
In the Massachusetts case, U.S. Bancorp and Wells Fargo had said
they controlled through different trusts
the respective mortgages
of Antonio Ibanez and the married couple Mark and Tammy LaRace,
who lost their homes to
foreclosure in 2007. The banks bought
the Springfield, Massachusetts, homes in foreclosure, and sought
court orders
confirming they had title. A lower court judge ruled
against them in March 2009. "It is the first time the supreme
court of a state has looked straight at securitization practices
and told the industry, you are not immune from state
statutes and
homeowner protections," Paul Collier, a lawyer for Ibanez, said in an
interview. Massachusetts
is one of 27 U.S. states that do not require
court approval to foreclose. "I'm ecstatic," Glenn Russell, a
lawyer
for the LaRaces, said in an interview. "The fact the decision applies
retroactively could mean thousands
of homeowners can seek recovery
for homes wrongfully foreclosed upon." Russell said the LaRaces moved
back
to their home after the 2009 ruling, while Collier said Ibanez
has not. "U.S. Bancorp will have to compensate him
in exchange for
the deed, or will have to walk away," Collier said. Analysts said
the decision could make it
harder to sell homes, and perhaps weigh on
the nation's economic recovery. "The inventory on foreclosures will
keep a lid on housing prices for some time," said Blake Howells,
head of equity research at Becker Capital Management
in Portland,
Oregon. Gants did suggest in his opinion how banks might properly
transfer mortgages via securitization
trusts. "The executed agreement
that assigns the pool of mortgages, with a schedule of the pooled
mortgage
loans that clearly and specifically identifies the mortgage
at issue as among those assigned, may suffice to establish
the
trustee as the mortgage holder," Gants wrote. "However, there must
be proof that the assignment was
made by a party that itself held
the mortgage." The American Securitization Forum, a trade group,
in a statement
said it "is confident securitization transfers are
valid and fully enforceable." The cases are U.S. Bank N.A.
v. Ibanez
and Wells Fargo Bank NA v. LaRace et al, Supreme Judicial Court of
Massachusetts, No. SJC-10694. (Reporting
by Jonathan Stempel and
Dena Aubin; Additional reporting by Joe Rauch and Dan Wilchins;
Editing by Matthew Lewis,
Dave Zimmerman and Tim Dobbyn)
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