Comments

Oral Argument Preview: Some Post Schwartzwald Foreclosure Standing Stuff. Bank of America v. Kuchta. — 3 Comments

  1. What about the case scenario where a servicer fraudulently claims to “own” a loan that was sold by the originator to a GSE (Freddie or Fannie)? Consider the standard “Note” (agreement) defines “Note Holder” as “The lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note…” So, while the servicer may have physical possession and “hold” a digital version of the note, the GSE is the party “entitled to receive payments under this Note.” The mortgage debt (promissory note), having been carved from possession of the Note, is a personal property interest under Art. 9. Since most provisions of UCC Art. 3 may be varied by agreement, the servicer’s status as a PETE would be trumped by the terms of the agreement. Further, if the GSE did not perfect its security interest in the promissory note (i.e. a payment intangible) then the debt is unsecured and, arguably, wiped out in bankruptcy.

  2. I have a similar case in Florida, in the 20th Judicial Circuit in and for Charlotte county. My previous lawyers dropped me and I was not notified . The Plaintiff ‘s lawyers who have not prosecuted the case for almost two and a half years took advantage of the case having turned into uncontested case, and was able to get a judgment. I do not think they even tried to notify me or if they did, they took their time because after about two years
    after a supposed judgment, I received a motion to show cause why I should not be held in contempt for not replying to their motion for discovery in aid of execution. Up to the present, I do not have knowledge of what that judgment is all about. Plaintiff’s lawyers I believe, kept me in the dark. I just engaged a Florida to defend me and raise the issues of lack of standing post judgment. Does anybody knows if the defense in the Kuchtas and Schwartzwald case applicable can be used in Florida. Please somebody help me.

  3. Out of state decisions can be used to “influence” another states judiciary… but they are not binding. I’m pulling the below out of an Ohio pleading but there are references to decisions from other states and the Fed. in it… Good Luck!
    “a judgment rendered by a court lacking subject matter jurisdiction is void ab initio. Consequently, the authority to vacate a void judgment is not derived from Civ. R. 60(B), but rather constitutes an inherent power possessed by Ohio courts. See Staff Notes to Civ. R. 60(B); Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 59 O.O. 74, 133 N.E.2d 606, paragraph one of the syllabus; Westmoreland v. Valley Homes Corp. (1975), 42 Ohio St.2d 291, 294, 71 O.O. 2d 262, 264, 328 N.E.2d 406, 409.” PATTON v. DIEMERNo. 86-1867. 35 Ohio St. 3d 68 (1988)

    2 Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).

    3 A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).

    4 Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983).

    5 A “void judgment” as we all know, grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack (thus here, by ). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97. On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain. Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469. Emphasis mine

    Void judgment is one entered by court without jurisdiction to enter such judgment, State v. Blankenship 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996).