Many attorneys are doing well in court without the Steinberger decision | Beth Findsen Weighs in on Steinberger

Posted on February 3, 2014 by Neil Garfield 

Mark Stopa, Esq., from the West side if Florida, points out that he and other lawyers are winning cases without the benefit of some recent trial and appellate decisions. Our own experience at Garfield, Kelley and White LLC, shows the same results. In that respect I did a disservice to myself and my partners. Many lawyers did not get their pleading dismissed and were able to proceed into discovery and trial. I think Mark is right that I might have created a misimpression that there was no progress but for the Arizona or other decisions.

The fact remains that in most cases the Bank cannot prove its case and Judges are turning that corner. The old bias is fading. When a lawyer aggressively pursues weaknesses in the foreclosure case, there are many gaps in the pleading and proof of the party seeking foreclosure.

And before I leave this out, pay attention to the pleading of the party seeking foreclosure and their answers either in its answers to discovery or at trial. It is the complaint and answer that frame the issues to be presented at trial. When there is a conflict, a proper objection can stop the Forecloser dead in its tracks.

... Beth Findsen, Esq. of Scottsdale, Az who is arguably one of the best legal writers in the country, along with our own Danielle Kelley, Esq. in Tallahassee, has written an article that I think captures the essence of the Steinberger. You can read the entire article HERE. As usual, Beth succeeded in stating the point in far less words than I do.

The court does a good job of explaining the separate instruments of the note and deed of trust, and listing and describing the rights and responsibilities of the three entities involved in a deed of trust, the trustee, the trustor, and the beneficiary.

The court understood the problem of an assignment of an interest years after the interest has already been transferred.  If there is no interest to transfer, nothing transfers.  It’s as simple as that.

The court also does a good job of analyzing what the Arizona Supreme Court actually said in the oft-cited Hogan case.  The Hogan court did not say that one can never mention the authority of the beneficiary or the note holder in a lawsuit opposing foreclosure, or risk being swept into the dreaded “show me the note” category and summarily dismissed.

Rather, the Hogan court was concerned with the lack of affirmative allegations in the Hogan pleadings about how and why the beneficiary might lack authority, or might not be the beneficiary.

The Steinberger court also recognized that the point of listing securitization facts is to establish a timeline that may show that the transfers in a purported chain of title cannot be true, if the note was in fact transferred to a securitization trust by a set closing date.  This is relevant to the beneficiary’s claimed authority, not an attempt for the homeowner to be claiming rights or enforcement under the third party securitization documents.

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