Tuesday, June 12, 2012

'Clear & Convincing' Standard Of Proof Not Applicable When Only 'Preponderance' Of Evidence Is Needed By Homeowner In Evaluating '11th Hour' Allonge

An excerpt from a recent post in Naked Capitalism:

  • In a unanimous decision, the Alabama Court of Civil Appeals reversed a lower court decision on a foreclosure case, U.S. Bank v. Congress and remanded the case to trial court.
  • The [foreclosing bankster's] solution in the Congress case [in the trial court] appears to have been a practice that has since become troublingly become common: a fabricated allonge. An allonge is an attachment to a note that is so firmly affixed that it can’t travel separately.

  • The fact that a note was submitted to the court in the Congress case and an allonge that fixed all the problems appeared magically, on the eve of trial, looked highly sus. The allonge also contained signatures that looked less than legitimate: they were digitized (remember, signatures as supposed to be wet ink) and some were shrunk to fit signature lines.

  • These issues were raised at trial by Congress’s attorneys, but the fact that the magic allonge appeared the Thursday evening before Memorial Day weekend 2011 when the trial was set for Tuesday morning meant, among other things, that defense counsel was put on the back foot (for instance, how do you find and engage a signature expert on such short notice? Answer, you can’t).
  • The [Alabama appeals] court found that the [trial] judge put an improperly high burden of proof on Congress [in determining the validity of the allonge], applying a “clear and convincing evidence” standard.

  • The court said that was a misapplication of precedent based on cases dealing with recorded deeds. The document under dispute was an allonge to an unrecorded note. The appeals court found the evidentiary hurdle should instead be that of a preponderance of evidence.

  • In addition, the court also found that the lower court incorrectly focused on the issue of the validity of the signatures. The appeals court found that even though Congress seemed to be contesting the validity of the signatures (the appeals court notes the argument at points seemed to be a bit confused), her real bone of contention was that the allonge was bogus [...]
  • The fact that a higher court has finally decided to place the question of the legitimacy of suddenly-appearing allonges at the heart of a ruling is a welcome development.
For the ruling, see Congress v. U.S. Bank. N.A., No. 2100934 (Ala. Civ. App. June 8, 2012).

No comments: