Friday, July 22, 2011

We Need to Review Court Cases and Regulations on a Case by Case Basis

We have to keep legal decisions and governmental regulations in perspective when we analyze a ruling or new regulation. There have been a lot of decisions on the validity of MERS for example. Many courts hold that it is invalid, while others hold that it is valid. To a lay person, this appears to be inconsistent. However, we must realize that the cases are reviewed on a case by case basis. The facts of the respective cases frequently determine the outcome. We also have to remember that these are different courts and different standards of review. In New York for example, it was a bankruptcy judge the ruled MERS invalid.

Another example of perspective is that there has been a lot of euphoria over the MARS situation relative to real estate agents. The FTC did not endorse real estate activity in these regard, it merely issued a stay of enforcement. There is a HUGE difference. This is likened to the police saying that they will not enforce speeding violations but it does not change the speed limit!! My opinion is that the FTC will review the events of the next six months or so and make a final determination.

I have also blogged about a lot of cases in regard to the “produce the note” defense. This week I blogged about Demucha v. Wells Fargo Home Mortgage. The case was a successful attempt to invalidate MERS because Wells could not prove that they had standing to foreclose (because the original assignment had not been “perfected”). Some courts within the same county make different rulings on this. In many instances, it is because the facts of a case dictate the outcome. It is also important to know when and how an issue was raised; was it an affirmative defense, objection to a Proof of Claim, Motion, etc.??

There are also tax issues such as the forgiveness of debt scenario that I have blogged about. These too must be viewed on a case by case basis because the facts of each case frequently determine the outcome.

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