Livinglies's Weblog

Greetings. I am recovering slowly from my heart attack and thank you to everyone who has sent me thoughts and prayers.

I have recently received a question from multiple people citing case law or quotes from treatises about errors made by Judges. Non-lawyers jump to the conclusion that the presence of an error is sufficient to vacate a prior ruling. This is not the case. If the judge or justices reviewing the error determine that the outcome would not change by correcting the error of law or fact, then the ruling stands. Usually, that shows up on appeal as “per curium affirmed.”

A recent decision that established the fact that an error does not need to be obvious to be overturned, is leading some people down a rabbit hole. I reviewed the decision. I strongly doubt this will do us any good — tactically or strategically.

The existence of a mistake is NOT sufficient to change anything. It is only if the mistake altered the outcome. The general view of nearly all judges is that this falls under damnum absque injuria — an error that did not cause anyone injury. That is where bias comes in, but it is permissible bias. The assumption is that there was a loan, a loan account was created, the act of the homeowner in making payments corroborated that it was a loan transaction and that the Payment History supplied by the so-called servicer leaves no doubt as to the existence of a breach of contract (default).

So if the decision is made that the foreclosure was probably the proper remedy in the situation, even though all the documents should not have been admitted into evidence for example, then the error will not result in vacating or overturning the decision of the trial judge. But, continuing with that example, if all the documents should have been excluded from evidence, then the result would change because that results in failure to establish any prima facie case against the homeowner.

Each case in which homeowners have prevailed in contested foreclosure cases is the result of the exclusion of evidence. Evidence is excluded from the court record mainly because there is a lack of foundation for the introduction of the evidence or because it is undermined in cross-examination.

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Filed under: foreclosure |