Friday, December 28, 2012

KIM v JPMORGAN CHASE BANK -- Acquisition of WAMU Mortgages from FDIC


Finally a taste of justice coming from Michigan.

 KIM v JPMORGAN CHASE BANK, NA Docket No. 144690. 

Argued October 10, 2012 (Calendar No. 9). Decided December 21, 2012.
In an opinion by Justice MARILYN KELLY, joined by Justices CAVANAGH, MARKMAN, and HATHAWAY, the Supreme Court held:

When a subsequent mortgagee acquires an interest in a mortgage through a voluntary purchase agreement with the FDIC, the mortgage has not been acquired by operation of law  and that subsequent mortgagee must comply with the provisions of MCL 600.3204 and record the assignment of the mortgage before foreclosing on the mortgage by advertisement. Any defect or irregularity in a foreclosure proceeding results in a foreclosure that is voidable, not void ab initio.
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Commentary and observations from anonymous sender...

We still have no list/schedule of loans owned by WAMU that were allegedly transfered to the FDIC "by operation of law" at the time/date of alleged transfer to the FDIC and unfortunately the court in this case glosses this underlying foundational evidence.  But, this is still the initial unresolved problem with evidencing any transfer of any loan from WAMU to the FDIC, but in this case the argument put out by JP Morgan Chase that it acquired these undocumented notes from WAMU via the FDIC by "Operation of Law" is smacked down so there is an absolute need for JPM Chase to produce admissible documentation of the entire transfer of the loan starting with WAMU as originator and including evidence of the complete chain of indorsements, assignments or other contracts to prove up the complete transfer of the negotiable note, assuming the note is a nego instrument.  Neither of these transfers - WAMU to FDIC and FDIC to JP Morgan Chase - are likely to be able to be documented with respect to any loan and the track record (to my knowledge) in court so far is proving this "transfer failure" statement to be accurate:
Michigan Supreme Court, 2012 MIch. LEXIS 2220, Kim v JP Morgan Chase, NA., 20121221
Two transfers of plaintiffs' mortgage occurred on September 25, 2008. The first, between WaMu and the FDIC, was consummated when the Office of Thrift Management closed WaMu and appointed the FDIC as its receiver. This transfer took place pursuant to 12 USC 1821(d)(2)(A)(i) and (ii), which provide that the FDIC "shall, as conservator or receiver, and by operation of law, succeed to . . . all rights, titles, powers, and privileges of the insured depository institution . . . and title to the books, records, and assets of any previous conservator or other legal custodian of such institution." (Emphasis added.) Thus, when the FDIC succeeded to WaMu's assets, which included plaintiffs' mortgage, it did so by clear operation of a statutory provision—12 USC 1821(d)(2)(A). With respect to this transfer, the FDIC acquired plaintiffs' mortgage by operation of law.

But the FDIC only briefly possessed WaMu's assets, including plaintiffs' mortgage. It immediately transferred those assets to defendant. The dispositive question in this case is whether the second transfer of WaMu's assets—the [*11] transfer from the FDIC to defendant—took place by operation of law.

The seminal case discussing the term "operation of law" in the context of foreclosures by advertisement is Miller v Clark.16 In Miller, a mortgagee died intestate. The Court considered whether the guardian of his heirs was obliged to record an assignment of the mortgage before foreclosing on it by advertisement. The Court held:
The authority to foreclose such mortgages by advertisement is purely statutory, and all the requirements of the statute must be substantially complied with. To entitle a party to foreclose in this manner it is required, among other things, that the mortgage containing such power of sale has been duly recorded; and if it shall have been assigned, that all the assignments thereof shall have been recorded. And also that the notice shall specify the names of the mortgagor and the mortgagee, and of the assignee of the mortgage, if any.

Applying this proposition, we hold that the transfer of
WaMu's assets from the FDIC to Chase did not take place by operation of law. Defendant acquired WaMu's assets from the FDIC in a voluntary transaction; defendant was not forced to acquire them. Instead, defendant took the affirmative action of voluntarily paying for them. Had defendant not willingly purchased them, it would not have come into possession of plaintiffs' mortgage. WaMu's [*14] assets did not pass to defendant "without any act of [defendant's] own"20 or "regardless of [defendant's] actual intent."21 Accordingly, the Court of Appeals correctly concluded that defendant did not acquire WaMu's assets by operation of law.

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Prior Articles:

Mich. SC to review foreclosure case against JPMorgan Chase

Kim v. JP Morgan Chase Bank | Court Sets Aside Foreclosure Sale Where Assignee Of Mortgage Failed To Record Its Interest Prior To Sale
Michigan | Kim v. JP Morgan Chase Bank — Family Fights Foreclosure, Beats Bank in Court (VIDEO)  --

1 comment:

  1. My client has a problem where there are issues of law that involve the question of whether or not Chase acquired these loans by "operation of law"I am seeking an opinion form an attorney who knows and understands the transaction wherein the FDIC transferred these loans to Chase

    I expect to pay a fee

    Thank you

    Dennis Cook

    ReplyDelete