WILL SUPREME COURT STEP UP AND MAKE COURTS FOLLOW THE LAW?

Don’t count on it, but it would be great if they would.  And there is a petition for a writ of certiorari in the case of Duncan K. Robertson v. GMAC Mortgage LLC et al. which could have that effect.  Below are a couple of great quotes from Scott Stafne’s petition:

“It is inappropriate for the federal District Court of Washington to continue chastising borrowers by claiming federal courts do not accept any “show me the note/split the note” defense when Wash. Rev. Code § 61.24.030(7)(a) and the Washington Supreme Court indicate otherwise.  Indeed, even this Court has recognized the viability of this defense.  See Carpenter v. Longan, 83 U.S. 271 (16 Wall. 271), 21 L. Ed. 313, (1873). As does the Restatement of the Law, Third, Property (Mortgages) 5.4 when an intention to split the note can be proved.”

Well said.  There is a tendency of federal district courts (and not just in Washington)–a very strong tendency–to discount the very clear dictates of Carpenter v. Longan.  See, for example, the Texas case of Kramer v. FNMA, which I wrote about in a post titled MERS IS THE PROBLEM, PART 5 MILLION AND COUNTING… In Kramer, Judge Sam Sparks said that when Carpenter talks about assignments of mortgage separate from the note being a nullity, that is merely “dicta” and Sparks doesn’t have to follow it.

The Supreme Court badly needs to clarify whether it means what it said in Carpenter (i.e., “An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”)–or not.  A lot of heartache, money, time, and effort could be saved by homeowners, courts, and attorneys if the Supreme Court would simply take up this question.  And that’s probably why they won’t hear this case…

Like Bill Butler, Stafne’s petition also makes note of the federal judiciary’s VERY strong tendency to dismiss cases involving financial instruments:

“In 2011 the Federal Judicial Center commissioned a report to determine the effect of Iqbal on dismissals. Cecil, Joe, et al.Motions to Dismiss for Failure to State a Claim after Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules (2011) (FJC Report). The Report compared dismissal rates under FRCP 12(b)(6) motions to dismiss pre- and post-Iqbal/Twombly pleading standards in order to determine its impact. While dismissal rates were somewhat higher generally, one class of cases – those involving financial instruments – showed that in 2010 federal courts applying the Iqbal/Twombly dismissed 91.9% of financial instrument claims for “failure to state a claim.”  This is nearly double the rate of such dismissals (47%) for 2006, pre-foreclosure crisis. Report at 14, Table 4. Notably, the statistics excluded pro se plaintiffs which would have undoubtedly moved the number higher. FJC Report at vii.”

Keep your fingers crossed…(hat tip to Shelley Erickson)

About eggsistense

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11 Responses to WILL SUPREME COURT STEP UP AND MAKE COURTS FOLLOW THE LAW?

  1. Not only keep your fingers crossed, but send in a memorandum or Amicus Curiea in support of this case telling the US Supreme Court how this case is vital to all of us in America. Hats off to scott Stafne, and his firm and Duncan Roberts my friend and warrior by email for several years. Hats off to Clinton Kirby for making this public. Hats off to all of you who take the time to make history., and stop this crime against us all.

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  3. Xay Sue, Thao says:

    Speaking of judges in the people’s court to follow the law but instead perhaps it is because of the fear kike a case “credit river township” that justice of the peace Jerome Mahoney was poison to death on a fishing trip 6 months after he ruled in favor of the homeowner and reference related to unconstitutional federal reserve note. The people need hero attorney and judges who stand for the truth and for the people. Wishing for the best of this case, great job.

  4. eggsistense says:

    Shelley, any idea on instructions for how to do that? How to send memorandums or amicus curiae briefs?

    • I have a party working on one I will post that we can use add or support the same doc and send and will post to you as soon as I receive it.

    • Here we go

      On February 21, 2014 a case that exposes federal courts usurping state law in foreclosure cases comes before the U.S. Supreme Court Conference Committee to determine if the Court will hear it. It is vital that it be heard.

      The issue of federal courts removing state law foreclosure cases and then applying (and misapplying) federal rules to usurp state law and swiftly dismiss them, is coming before the U.S. Supreme Court Conference Committee on February 21. The case raising questions is Duncan K. Robertson v. GMAC Mortgage, LLC, et. al., Case No. 13-655, U.S. Supreme Court.

      Unlike most foreclosure disputes, Robertson has never owed the defendants anything. Robertson had purchased a property at foreclosure of a second deed of trust. He then attempted to pay off the first. However, none of the defendants would disclose a principal party on the deed of trust, and instead tried to conduct their own trustee’s sale without notifying Robertson. Further investigation revealed that none of the parties had any interest in the subject loan or deed of trust, defendants claiming to be trustees did not know who they were representing, and the deed itself was legally void. After four attempts by defendants to sell the property and five payoff attempts by Robertson, he filed suit in Washington Superior Court.

      Virtually all homeowner challenges to foreclosure are based on state law claims. In Washington it’s principally the Deeds of Trust Act and real property rights. Complaints filed in state court must be filed under state pleading rules. But when the cases are removed to federal court under what is termed diversity jurisdiction (which is supposed to provide an unbiased federal forum for out-of-state defendants to avoid prejudice for a local plaintiff –Robertson lives in Oregon), suddenly the rules change in the middle of the game. The homeowner’s complaint is then viewed through much stricter rules set down in two U.S. Supreme Court cases bearing the names Twombly and Iqbal. Both of these cases were originally filed in federal court under federal rules. Ironically, the “failure to state a claim” defense is jurisdictional. If a removed case is found to not present a “justiciable controversy” between the parties, a federal court lacks subject matter jurisdiction to hear it under Article III of the U.S. Constitution. It is not necessarily so with state courts, for example with Consumer Protection Act claims where injuries to other parties are required pleading in Washington, and Superior Courts are empowered to provide relief. Thus, if there is really not any “justiciable controversy”, proper action for a case filed in federal court is dismissal; however if the case was removed by the defendants to that court, the proper action is remand to the state court from whence it was improperly taken. But that is not what is happening around the country.

      In 2011 the Federal Judicial Center commissioned a report to determine the effect of heightened federal pleading standards on dismissals. Cecil, Joe, et al. Motíons to Dismiss for failure to State a Claím after lqbal: Report to the Judicíal Conference Advisory Committee on Civil Rules (2011) (FJC Report). While the study found dismissal rates somewhat higher generally under the new standard, one class of cases – those involving financial instruments – showed that in 2010 federal courts applying the Iqbal/Twombly standards dismissed 91.9% of financial instrument claims for “failure to state a claim.” This is nearly double the rate of such dismissals (47%) for 2006. FJC Report at 74, Table 4. Notably, the statistics excluded pro se plaintiffs which would have undoubtedly moved the number higher. FJC Report at vii.

      Also, in order to remove Robertson’s case to federal court the defendants had to violate nearly every one of the “Removal Statutes” – including failure of all defendants to consent to removal, failure to state their citizenships and the presence of one defendant who had declared their principal place of business to be in Washington (known as a “forum defendant” which prohibits diversity jurisdiction). But when Robertson moved to remand the case to state court, the district court simply looked the other way, and proceeded to dismiss the local defendant before claiming it had jurisdiction to hear the case (so far all claims have been dismissed).

      When a Washington Appeals Court ruled that the federal case upon which virtually all foreclosure-related suits were being dismissed (Vawter v. Quality Loan Services) was an entirely wrong interpretation of state law (since supported by at least three other Appeals Court rulings), Robertson moved to vacate the previous dismissal of defendants. The district court then issed a new state law, ruling that because Robertson was not a party to the deed of trust, he had no virtually no rights under the Deeds of Trust Act and no right to bring actions for quiet title and declaratory relief to require other claimants to prove their claims.

      Because the issue of diversity jurisdiction removals coupled with re-writing of state law by federal courts affect the rights of virtually every mortgagor in the U.S. and could seriously shake up federal courts that are abusing the system, the Supreme Court’s hearing of this matter is critical. Anything you can do to encourage the Court to review the case would be appreciated. (Granted that’s not much on a formal level, but the court of public opinion does not go unheard in these things).

      The Petition for Writ of Certiorari and collateral documents may be downloaded at:
      http://stafnetrumbull.com/appellate-briefs/robertson-v-united-states-district-court/

  5. eggsistense says:

    I agree, Xay Sue, Thao. They made sure that was Mahoney’s first and LAST decision along those lines. And of course sent a message to every other judge who might be inclined to rule the way he did.

  6. A warrior friend and attorney and web media man was threatened not to testify at the last Washington Senate meeting. Caught in the hall by a senator threatening him. A professor of law I know by his helping to stop this crime, was threatened by the WA bar not to speak at a Clouded Titles meeting or be disbarred. It is apparent the people are dealing with thugs and criminals in the government and the judicial system that support the thugs in the banks. So blasted obvious.

  7. I have wondered how a hundred year old distinguished case law from the US Surpreme Court can be denied by these federal judges. Just like the US Constitution and due process is denied us by the federal judges. NO RULE OF LAW! Unless it is unconstitutional law set by banksters. Just my unprofessional opinion.

  8. Here is a sample of a letter you can copy and support or add to if you wish to send to the US Supreme Court. Must be sent ASAP hearing is February 21, 2014 if they choose to hear it.

    On February 21, 2014 a case that exposes federal courts usurping state law in foreclosure cases comes before the U.S. Supreme Court Conference Committee to determine if the Court will hear it. It is vital that it be heard.

    The issue of federal courts removing state law foreclosure cases and then applying (and misapplying) federal rules to usurp state law and swiftly dismiss them, is coming before the U.S. Supreme Court Conference Committee on February 21. The case raising questions is Duncan K. Robertson v. GMAC Mortgage, LLC, et. al., Case No. 13-655, U.S. Supreme Court.

    Unlike most foreclosure disputes, Robertson has never owed the defendants anything. Robertson had purchased a property at foreclosure of a second deed of trust. He then attempted to pay off the first. However, none of the defendants would disclose a principal party on the deed of trust, and instead tried to conduct their own trustee’s sale without notifying Robertson. Further investigation revealed that none of the parties had any interest in the subject loan or deed of trust, defendants claiming to be trustees did not know who they were representing, and the deed itself was legally void. After four attempts by defendants to sell the property and five payoff attempts by Robertson, he filed suit in Washington Superior Court.

    Virtually all homeowner challenges to foreclosure are based on state law claims. In Washington it’s principally the Deeds of Trust Act and real property rights. Complaints filed in state court must be filed under state pleading rules. But when the cases are removed to federal court under what is termed diversity jurisdiction (which is supposed to provide an unbiased federal forum for out-of-state defendants to avoid prejudice for a local plaintiff –Robertson lives in Oregon), suddenly the rules change in the middle of the game. The homeowner’s complaint is then viewed through much stricter rules set down in two U.S. Supreme Court cases bearing the names Twombly and Iqbal. Both of these cases were originally filed in federal court under federal rules. Ironically, the “failure to state a claim” defense is jurisdictional. If a removed case is found to not present a “justiciable controversy” between the parties, a federal court lacks subject matter jurisdiction to hear it under Article III of the U.S. Constitution. It is not necessarily so with state courts, for example with Consumer Protection Act claims where injuries to other parties are required pleading in Washington, and Superior Courts are empowered to provide relief. Thus, if there is really not any “justiciable controversy”, proper action for a case filed in federal court is dismissal; however if the case was removed by the defendants to that court, the proper action is remand to the state court from whence it was improperly taken. But that is not what is happening around the country.

    In 2011 the Federal Judicial Center commissioned a report to determine the effect of heightened federal pleading standards on dismissals. Cecil, Joe, et al. Motíons to Dismiss for failure to State a Claím after lqbal: Report to the Judicíal Conference Advisory Committee on Civil Rules (2011) (FJC Report). While the study found dismissal rates somewhat higher generally under the new standard, one class of cases – those involving financial instruments – showed that in 2010 federal courts applying the Iqbal/Twombly standards dismissed 91.9% of financial instrument claims for “failure to state a claim.” This is nearly double the rate of such dismissals (47%) for 2006. FJC Report at 74, Table 4. Notably, the statistics excluded pro se plaintiffs which would have undoubtedly moved the number higher. FJC Report at vii.

    Also, in order to remove Robertson’s case to federal court the defendants had to violate nearly every one of the “Removal Statutes” – including failure of all defendants to consent to removal, failure to state their citizenships and the presence of one defendant who had declared their principal place of business to be in Washington (known as a “forum defendant” which prohibits diversity jurisdiction). But when Robertson moved to remand the case to state court, the district court simply looked the other way, and proceeded to dismiss the local defendant before claiming it had jurisdiction to hear the case (so far all claims have been dismissed).

    When a Washington Appeals Court ruled that the federal case upon which virtually all foreclosure-related suits were being dismissed (Vawter v. Quality Loan Services) was an entirely wrong interpretation of state law (since supported by at least three other Appeals Court rulings), Robertson moved to vacate the previous dismissal of defendants. The district court then issed a new state law, ruling that because Robertson was not a party to the deed of trust, he had no virtually no rights under the Deeds of Trust Act and no right to bring actions for quiet title and declaratory relief to require other claimants to prove their claims.

    Because the issue of diversity jurisdiction removals coupled with re-writing of state law by federal courts affect the rights of virtually every mortgagor in the U.S. and could seriously shake up federal courts that are abusing the system, the Supreme Court’s hearing of this matter is critical. Anything you can do to encourage the Court to review the case would be appreciated. (Granted that’s not much on a formal level, but the court of public opinion does not go unheard in these things).

    The Petition for Writ of Certiorari and collateral documents may be downloaded at:
    http://stafnetrumbull.com/appellate-briefs/robertson-v-united-states-district-court/

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