The issue is jurisdiction. Lawyers filed papers for AWL but AWL was dissolved as a corporation. The lawyers countered with the allegation, on appeal, that AWL was a fictitious name for Countrywide without specifying the location of CW. Hence no diversity of jurisdiction could be supported by the allegations in the notice for removal.
The claim of diversity was not supported by either facts or allegations establishing diversity. This is the common practice of foreclosure mills and their defenders. They simply make a claim and leave it as “implied” that the grounds exist. Attack that, and you can win.
So the issue before the 9th Circuit was whether the Federal District Court had jurisdiction to enter a dismissal of the claims for wrongful foreclosure. That in turn depended upon whether the case had been properly removed from state court by AWL. If it hadn’t been properly removed then the District Judge had no jurisdiction to enter any order other than the ministerial act of remand to the state court.
The 9th Circuit Court of Appeals approached the subject gingerly. Since AWL didn’t exist and there was no viable supporting allegation that it was the fictitious name of Countrywide the answer was obvious. AWL could not remove because it didn’t exist.
The hidden story is (a) the number of times AWL was named by lawyers as the foreclosing party with no reference to CW or anyone else claiming to use AWL as a fictitious name and (b) the number of entities claiming that AWL was a fictitious name for them.
The real question is why should lawyers enjoy immunity from litigation under “litigation Privilege” when they file not for an actual legal entity but for a group of vendors who all stand to benefit from the foreclosure? If there is no client why should lawyers be immunized?
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Filed under: foreclosure, foreclosure mill, jurisdiction, legal standing, Mortgage, Motions, Pleading, standing | Tagged: 9TH CIRCUIT, america's wholesale lender, AWL, countrywide, diversity, jurisdiction, litigation privilege, remand, removal |
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Shows how “doing your due diligence” works. Check to see if the foreclosing part DOES really exists!!!!