Jacob’s story is a classic example of why it is necessary to press a bank seeking foreclosure on all fronts, making sure that it has satisfied its burden of proving every element of its case. Courts are becoming increasingly aware of the corner cutting by banks in their zeal to obtain orders of foreclosure; orders which eventually lead to further enrichment of the banks because foreclosure is profitable. As Jacob’s case vividly points out, banks are at least sometimes required to follow the rule of law, and are punished if they fail to do so.
The turning point in this case was the fact that the Plaintiff U.S. Bank did not make a specific affirmative allegation in its papers seeking foreclosure that it had taken every legal step required of it under the law which would entitle it to such an order. In the law, this is called “the necessary preconditions defense”. In the past, many courts have simply held that a bank witnesses’ generic statement such as; “(the bank) is entitled to
foreclosure," were good enough. Jacob’s court raised the bar considerably higher on U.S. Bank. Within the past month, the court dismissed such an argument by the Bank, stating “Neither the bank’s motion for summary judgment, nor the court’s order granting it, recited (that all necessary preconditions were met). It seems fundamental that one filing a motion for summary judgment would outline the elements necessary to prevail on its claim.”
That, in essence, was the court’s polite way of telling U.S. Bank that it screwed up. This being a decision by a Court of Appeals, the matter has been remanded for full proceedings in the trial court. In other words, U.S. Bank was denied the opportunity that all foreclosing banks or loan servicers really want: to get a quick and easy foreclosure order by way of summary judgment, denying the homeowner his or her right to trial. We will make the most of U.S. Bank’s slam down at the hands of the court to conduct extensive discovery and find out every dirty little secret U.S Bank has in its closet regarding this loan. And when those secrets are e exposed to the light of day, Jacob will finally get the mortgage relief which he has long deserved.
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Kate Eyster and Lauren McGookey contributed to this article.
Copyright 2014 Daniel L. McGookey