Heh Look What We Have Here! (Foreclosure Defense)


An old associate of mine is having the “time of his life” with a foreclosure on his property up in Georgia.  There’s all sorts of hinky stuff that went on in the general case with fraudclosures, as anyone who’s read this blog for a length of time knows.  Most of the cases that are filed wind up ending one of two ways: You either get a judge who actually pays attention to the law, which is rare, or you get one who rubber-stamps anything a bank stuffs in front of him.

In the former case there’s a good shot, if you got ripped in some form or fashion, to find relief.  In the latter you’re wasting your time.

Here’s a unique argument — yet one that has always held in other areas of civil litigation where some sort of monetary relief is being prayed for.  Enjoy.

Cause of Action #10

Defendants allege that the “Plaintiffs lack standing to avoid foreclosure based on allegations related to a contract to which they are not a party or an intended beneficiary.”

Plaintiffs are relying on the theories of Unjust Enrichment and the One Satisfaction Rule. One cardinal principle of law states that, in the absence of punitive damages, a plaintiff can recover no more than the loss actually suffered.

“When the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages.” Lovejoy v. Murray, 70 U.S.(3 Wall.) 1, 17, 18 L.Ed. 129 (1865).

Further, “Payments made by any person in compensation of a claim for a harm for which others are liable as tort-feasors diminish the claim against them, whether or not the person making the payment is liable to the injured person, and whether or not it is so agreed at the time of payment, or the payment is made before or after judgment. The extent of the diminution is the amount of the payment made, or a greater amount if so agreed. MacKethan v. Burrus, Cootes and Burrus, 545 F.2d 1388 (C.A.4 (Va.), 1976)”

Given that CWALT, Inc. has credit default swaps insuring the performance of tranches within their portfolio, given that excess returns within a tranche will be shared with the next tranche, and given that CWALT, Inc. is the likely beneficiary of a negotiated settlement between Bank of America and The Bank of New York Mellon, the theories of Unjust Enrichment and the One Satisfaction Rule apply.

For these reasons, the Defendants’ Motion to Dismiss should therefore be Denied.

We’ll see how this one plays; there’s plenty of more in the response, which is embedded below.

Response To Motion To Dismiss

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