In August of 2010, Nye Lavalle wrote the contents of https://4closurefraud.org/2010/08/05/only-a-secured-creditor-may-conduct-a-non-judicial-foreclosure-in-georgia/ detailing that a major lender’s lawyer in GA agreed with the above analysis and wrote a detailed explanation. This was used by a number of lawyers and pro ses, one of which was Morgan in the case to follow. Morgan was a former and retired lawyer. In the Morgan case, judges or clerks from the Ct has reviewed the blog as well as Morgan.
A year later, in August of 2011, Federal Court judge, Amy Totenberg, went against other Federal judges in her district and clearly articulated my points and issues on the practices of the servicers in GA. The decision went completely on my points and is contained here with additional reflection on the prior https://4closurefraud.org/2011/08/15/big-win-in-ga-morgan-v-ocwen-mers-only-a-secured-creditor-may-conduct-a-non-judicial-foreclosure-in-georgia/ blog post.
On 2/16/12 Totenberg issued another decision on the issue of secured creditor detailing why her analysis was better than her colleagues in the No Distr of GA. http://stopforeclosurefraud.com/2012/03/18/stubbs-v-bank-of-america-bac-fannie-mae-ga-nothern-district-court-bac-was-not-the-secured-creditor-entitled-to-foreclose/
The current case was making its way up the Courts via a lawyer in GA that is a colleague of the lawyer Nye worked most closely with in GA using our arguments.
Just the other day, the GA Appeals Ct in a 5-4 vote ruled that the analysis Nye created in 2008 and Totenberg’s analysis of the law was right. However, Nye disagree that a servicer can notice on behalf of a lender, something he contemplated, but that he thinks under strict construction an agent can’t do by non-judicial means, but may foreclosure judicially as an agent. At least that’s his argument until won or lost. However, tens of thousands of foreclosures are now ripe for undoing AND/OR seeking damages!
Below are the news reports and decision…
Ruling could have impact on foreclosure suits
An appeals court ruling this week in favor of a Cobb County couple could leave mortgage companies liable for damages for not following state law in an unknown number of Georgia foreclosures.
The 4-3 ruling probably won’t undo the result of past foreclosures, lawyers say, but could open another avenue for borrowers to sue mortgage firms.
“This could breathe new life into the challenges of foreclosures that took place in late 2008 and throughout 2009,” said Frank Alexander, a real estate law professor at Emory University.
The number of cases where the ruling might be applicable was not immediately clear, but could be in the tens of thousands.
The issue involves the many lenders who sell their loans to other parties such as investment trusts, but serve as stand-ins handling the paperwork in the foreclosure process and act as if they still own the loans.
The Georgia Court of Appeals held Thursday that the name of the actual owner of a mortgage must be present in foreclosure filings and notices sent to delinquent borrowers.
State law was modified in 2008 to require that foreclosure notices and legal advertisements include the name and contact information of the mortgage owner and of organizations that could negotiate a modification, short sale or other relief on lender’s behalf.
“A debtor has a right to know which entity has the authority to foreclose, and there should be no confusion about the identity of that entity. The practical ramifications are troubling if it were otherwise,” the court majority agreed in its opinion.
More from the news report here…
Copy of the opinion below…