Tuesday, February 12, 2013

A Real Victory for Homeowner in Jolley v Chase Home Finance -- P&A of WAMU

Jolley v. Chase Home Finance | CA Appeals Court –  triable issues 
of material fact relating to the financing debacle, not just limited to 
the claimed inauthenticity of the Agreement but also as to misconductOn June 20, 2012 this site published "Secret FDIC & JPMorgan Chase Bank 118 Page Purchase and Assumption Agreement for Washington Mutual Bank Uncovered" regarding foreclosure litigation in Scott Jolley v Chase Home Finance LLC.  For previous article go to  http://victoryoverchase.blogspot.com/2012/06/fdic-jpmorgan-chase-bank-secret-118.html

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.

Excerpt from the Deposition of Jeffrey A. Thorne:

13  Q.   BY MR. BRADLEY:  Okay.  Now, this 118-page
14  document, can you again describe to me what its contents
15  was?
16  A.  There's two documents. They're the same
17  document.  And it is the right to purchase a financial
18  institution.   That's the purchase agreement.  One of 
19  them is 35 pages long that is recorded and made public
20  by the FDIC, and the other is a continuation of the 35
21  pages up to the 118 pages that spells out an agreement
22  between the purchasing institution and the FDIC as to
23  how they are to handle the customers upon the purchase
24  of the bank; i.e., how the foreclosures are to be
25    handled, work out agreements that they're supposed to
 [Page 71]
 1  make.  Are they supposed to make an offer?  They have to
2  make certain offers in writing.  They have to present
3 them to the FDIC to Show that they're working with them
4 In good faith.  They just can't go in and just start
5 foreclosing on everybody that's not paying.
6 Q.   And it's your testimony that there was such an
7 agreement that Chase Signed with the FDIC when it took
8  over WaMu, this document?
9  A.  Yeah, at the facility that I was at, that was
10 one of the documents I had access to through my system,
11 and I saw that document.
12  Q.   Okay.  And then where would a copy of that
13  document be?  The first 32 pages, I think you said, were
14  made public, but the balance of them were withheld from
15  the public.
16  A.  Right.  It would be at FDIC.
17  Q.   Okay.  And could those be subpoenaed?
18  A.  I'm sure they could.
19  Q.   And you would refer to it as the right to
20  purchase document?
21  A.  Right.

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