Interesting SCOTUS Decision May Prevent Removal of Certain Lawsuits to Federal Court Where They Normally Die

by Neil Garfield

The full impact of this decision may not be known for years. But the immediate impact is that it gives homeowners a chance to move for remand back down to state court after attempted removal to Federal Court. Unless clarified later, which does not seem likely, this decision could mean that the Supreme Court of the United States says that Federal Courts have no jurisdiciton to hear statutory claims that can be filed in state courts. Here is the bonus: most statutory claims that can be filed under FDCPA, FRCA, RESPA, TILA etc can be filed in state court.

Specfically this means that if no actual damages are alleged (i.e., only statutory damages are claimed) then the Federal Court has no jurisidicition. So the court in attempting to minimize actions by consumers who are victims of illegal collection activities merely diverted them to state courts.
One of the interesting subissues is that these statutes may contain provisions (FRCA) for the judge, in his/her discretion to award punitive damages and this seems likely for class actions to rise rather than fall as seems to be intended by SCOTUS. Withte higher prospect of obtaining attorney fee awards and punitive damages this might make the cases more interesting.

see https://www.jdsupra.com/legalnews/scotus-deals-blow-to-federal-court-7203875/
TransUnion LLC v. Ramirez

Making the Wrong Objection and Filing the Wrong Foreclosure Defense

by Neil Garfield

The recent Compton Case in Hawaii illustrates the nuances that have been weaponized by the investment banks. It further illustrates basic errors in procedure and objections that continue to result in homeowners inadvertently aiding and abetting an illegal foreclosure against them.
see USB v Compton 6-21-21 HI SupCt

The decision is correct. The failure to contest the existence of the underlying obligation together with the authority to enforce the note forced the court to accept U.S. Bank as a holder with flights to enforce. The delivery to the court together with testimony that t the note was part of some collection of business records is not a proffer of hearsay.

My point is always the same: if you don’t attack the central point of the case, you are admitting the central point. And that means you lose.

Homeowners seem afraid or just ignorant of the fact that they can force the opposition to actually prove the existence of the underlying obligation and that the named plaintiff owns it. But contrary to the belief of lay litigants and some lawyers, denial is not enough.

The recent Compton Case in Hawaii illustrates the nuances that have been weaponized by the investment banks.

The decision is correct. The failure to contest the existence of the underlying obligation together with the authority to enforce the note forced the court to accept U.S. Bank as a holder with rights to enforce. The delivery to the court together with testimony that the note was part of some collection of business records is not a proffer of hearsay. So the hearsay objection was wrong.

The central point of every foreclosure case is that there is an underlying obligation owed to the plaintiff that has been breached by the homeowner. In virtually all current foreclosure cases this is not what happened. But if you admit it, then for purposes of the case the legal fact is that the plaintiff owns an existing obligation that was breached by the homeowner. It is all downhill from there.

Homeowners seem afraid or just ignorant of the fact that they can force the opposition to actually prove the existence of the underlying obligation and that the named plaintiff owns it.

But contrary to the belief of lay litigants and some lawyers, denial is not enough. Your opposition need only invoke legal presumptions arising from the facial validity of documents (even though they are false, fabricated, and forged) to satisfy their legal burden of proving the prima facie case. And that is why the homeowner must employ aggressive discovery tactics,s strategies and motions that reveal the unwillingness or inability of the opposition to back up the facts that are preliminarily presumed to be true.

My observation is that the most common reason that this is overlooked is that the homeowner and lawyer cannot conceive of a scenario in which the underlying obligation does not exist. They arrive at this conclusion because the homeowner applied for a loan and believed that was what they received. Maybe they did.

But the moment that the transaction was sucked into the securities scheme invented by investment banks, the loan account receivable was extinguished. And for legal purposes that means the obligation is extinguished because without owning the asset you are not allowed to claim a financial loss arising from damage to that asset. This basic pleading, without which there is no claim.

 

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