It’s obvious that Rooker Feldman and related doctrines are being misused again because of an underlying presumption that the homeowner is guilty of not paying a bona fide creditor according to the terms of a promissory note.
In fact, in most cases, the homeowner is not guilty of anything — but in most instances the homeowner and the lawyer representing the homeowner both believe that there was a default and that therefore the homeowner is guilty, but maybe he can escape on some technicality. This approach is obvious to any judge who is going to lean heavily toward enforcement of the contract because the court doesn’t know that there isn’t any contract between the homeowner and the enforcing party.
Having been denied access to the information about the identity of his creditor and whether there is any connection between that creditor and the paper trail created by banks and servicers, the homeowner would do any rational business person would do — stop paying the party demanding money and challenge that party’s right to enforcement.
Get a LendingLies Consult and a LendingLies Chain of Title Analysis! 202-838-6345 or info@lendinglies.com.
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave a message or make payments.
OR fill out our registration form FREE and we will contact you!
https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-
Rooker Feldman stands for the proposition that if the matter was adjudicated to a conclusion in a state or federal court it cannot be relitigated in another court. It is a Federal Doctrine but it applies to both as a matter of practice.
If an issue was (a) raised in a prior proceeding and (b) was specifically the issue or one of the issues decided and (c) a final order ensued in which the court’s final order expressly decides that issue, it is subject to res judicata, collateral estoppel and hence the Rooker Feldman doctrine. In layman terms you can’t have two bites of the same apple.
Just because the issue might have been raised in a prior proceeding as a motion to dismiss or affirmative defense or in a memorandum of law, does not mean that the issue was tried and a decision rendered on that issue. But there is a gray area.
So for example, if you raise the issue of a void assignment, but the foreclosure is dismissed or blocked for other reasons, then the issue of the void assignment has not been decided, expressly or otherwise.
If the court decision is that the foreclosing party lacked standing, you can’t use any of the above doctrines unless the trial court expressly rules that the assignment is void as a matter of law and fact.
If a trial occurs on that issue, you are on pretty safe grounds to assert Res Judicata, Collateral Estoppel or Rooker Feldman if the Court states that the assignment was void — but not if the court decides that the assignment was untimely or otherwise unenforceable. That is not the same as your contention that the assignment was void — i.e., that it is a false document that never should have been executed, much less recorded.
If the Trial Court decides that the assignment was not void, then the question becomes whether this was the result of a hearing or trial in which the facts of the matter were adjudicated.
Often the trial judges inappropriately rule on the issue without getting the facts and giving the homeowner a right to be heard on why the facts show that the assignment was void — i.e., that the “transaction” giving rise to the instrument (e.g. the assignment of mortgage) never happened — thus negating the foundation (a term of art used in evidence law) for the admission of the assignment into evidence and giving rise to the ability of the homeowner’s lawyer to object and/or move to strike the assignment and the testimony that had been used as foundation for the assignment of mortgage.
Banks have successfully cowed both foreclosure defense lawyers and judges into thinking that if the homeowner’s motion to dismiss was denied after raising such issues that the matter has “already been decided.” This is not true. In a motion to dismiss all matters are taken as true and the motion is directed not at the truth of the matters asserted but rather at whether the complaint (judicial states) or implied complaint (nonjudicial states) fulfills the requirement of pleading.
While additional clarity could come from a higher court of appeal, in the end, it is on a case by case basis that such matters are decided — whether the matter has already been litigated. But it is true that judges are routinely ignoring the requirement that the matter was actually litigated and conflating a procedural decision with a trial that may or may not have ever happened.
Granting a motion for summary judgment, trial courts have been persuaded that their prior decision denying the homeowner’s motion to dismiss, should be used as a matter that has already been decided. Likewise, some Federal Judges have decided that Rooker Feldman applies even though there never was an adjudication on the merits of that very specific claim by the homeowner.
Also granting a motion to dismiss or a motion for summary judgment in federal court on the basis of an order to dismiss or an order granting summary judgment is wrong because the matter was not adjudicated and because the homeowner’s right to due process is thus violated — he never got to say and prove why the assignment should be treated as a complete nullity.
SCOTUS might take up the issue because the abuse of the Rooker Feldman doctrine is rampant. Continuing with the presumed guilt (default) of the homeowner, trial judges are straining for any excuse to stop the homeowner from raising frivolous defenses — even if those defenses are manifestly true and even those defenses would defeat any “successor mortgagee” or “successor beneficiary”.
So it is a close call as to whether SCOTUS will actually accept the writ because the rules are not going to change if they decide the issue. But the application of the rules is what needs to be changed and it can and should be argued that there is nothing wrong with the doctrine but there is a lot wrong with the way it is being used.
Search Our Blog
Categories
Contact Our National Headquarters Phone: 844-583-5339
Connect with us
Contact Our National Headquarters
- 844-583-5339
- Available 24/7
-
200 S. Andrews Ave. Ste. 604
Ft. Lauderdale, FL 33301