Wednesday, November 4, 2015

Homeowners' Standing To Challenge Mortgage Assignments Where They Fail To Comply With Terms Of Trust's Governing Docs: U.S. Supreme Court Denies Homeowner's Petition For Review

A follow-up on the last post (September 24, 2015), U.S. Supremes Asked To Address Foreclosing Banksters' Claims That Homeowners Lack Standing To Contest Mortgage Assignments (Void or Voidable???) That Fail To Comply With Terms Of Trust's Governing Documents:

Regrettably for homeowners, consumer attorneys, and their other advocates, the U.S. Supreme Court made quick work of the case, denying the petition for certiorari on November 2, 2015.

Go here for the November 2, 2015 docket entry.

Thanks again to Deontos for the update.


Editor's Note: The crucial question here (where, by its terms, the governing trust documents are controlled by New York state law) involves, not the application of federal substantive law, but the application of the substantive law of the state of New York. Further, while there is a long list of federal cases deciding this issue, the issue of law here appears to be one for which no controlling precedent of the New York Court of Appeals exists.

The next time a case like this one works its way up the federal court system to an appeals court, it may be a good idea for the homeowners' advocates to request that the federal appeals court, before deciding the case, first certify the question of law to the New York Court of Appeals,(1) the state's highest court and "best authority on its own law", as to whether the failure to comply with the terms of a trust's governing documents renders a mortgage assignment void, or only voidable. (See generally, Certified Question.)

As a reminder, and as the U.S. Supreme Court has said in Commissioner v. Estate of Bosch, 387 U.S. 456 (1967), and followed by the subsequent cases thereunder on the significance of how the highest courts of each state interpret their own state's substantive (as opposed to procedural) laws, and that the federal courts are to follow these interpretations (generally referred to as a part of the Erie Doctrine):
  • "This is but an application of the rule of Erie R. Co. v. Tompkins, supra, where state law as announced by the highest court of the State is to be followed. This is not a diversity case but the same principle may be applied for the same reasons, viz., the underlying substantive rule involved is based on state law and the State's highest court is the best authority on its own law."

(1) See New York Court of Appeals Rule 500.27 - Discretionary Proceedings to Review Certified Questions from Federal Courts and Other Courts of Last Resort:
  • (a) Whenever it appears to the Supreme Court of the United States, any United States Court of Appeals, or a court of last resort of any other state that determinative questions of New York law are involved in a case pending before that court for which no controlling precedent of the Court of Appeals exists, the court may certify the dispositive questions of law to the Court of Appeals.
Note that the certification process is strictly discretionary, both on the part of the certifying court and the New York Court of Appeals. That is, the New York Court of Appeals is not required to accept any question of law certified to it; likewise, the court being requested by a party to certify a question of law to New York's highest court (or the highest court of any state, for that matter) is not required to certify the question of law.

It should be noted the United States Supreme Court has encouraged (but not mandated) the lower federal courts to make use of the certification process where available, which "in the long run save[s] time, energy, and resources and hel[ps] build a cooperative judicial federalism." Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974), and which has been addressed by this list of cases thereunder.

See also, Arizonans for Official English v. Arizona, 520 U. S. 43, 77 (1997) ("Through certification of novel or unsettled questions of state law for authoritative answers by a State's highest court, a federal court may save `time, energy, and resources, and hel[p] build a cooperative judicial federalism'" (brackets in original)).

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