On February 11th 2013 the Court of Appeal of the State of California, First Appellate District, Division two issued and certified for publication a consequential decision on behalf of WAMU borrower, Scott McCall Jolley. See this ruling at http://www.leagle.com/xmlresult.aspx?page=20&xmldoc=In%20CACO%2020130211003.xml&docbase=CsLwAr3-2007-Curr&SizeDisp=7
Below is an excerpt as to the FDIC/Chase P&A being submitted into evidence.
2. The P&A Agreement: Judicial Notice, the Law, and Thorne’s Testimony
As noted, Chase requested judicial notice of the P&A Agreement attached to the declaration of its counsel who represented that it was a copy of the agreement found on the FDIC website. The declarant was not a custodian of records, was not a party to the Agreement, gave no indication she was involved in negotiating or drafting it, and provided no background as to how she acquired knowledge of the document. Indeed, she did not even aver it was a true and complete copy.
We also note that the request was for judicial notice of the fact that on September 25, 2008, ―Chase acquired certain of the assets of WaMu, including all loans and loan commitments of WaMu.‖ The papers did not request judicial notice that Chase
did not assume liabilities based on borrower claims. Unquestionably, the trial court below used the Agreement for a much broader purpose, namely to prove that Chase did not assume liability for WaMu‘s alleged misdeeds with respect to Jolley‘s loan.
We conclude this was error, and that the content and legal effect of the P & A Agreement could not properly be determined on judicial notice under California law. And certainly not here.