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)