Tuesday, April 11, 2017

Homeowner gets case remanded on issues of right to enforce note and amount owed

A Maryland homeower lost in the bankruptcy and district courts after an unsuccessful challenge to the alleged creditor's right to enforce the mortgage note and the amount allegedly owed under the note. The homeowner then came to us for assistance with the appeal before the Fourth Circuit.

Upon reviewing the case, it became apparent that the homeowner's shotgun/kitchen-sink approach did not serve him well in the lower courts and obscured the strong points of his case.  We therefore undertook to create a focused appeal to make sure that the lower courts' errors are not repeated and not allowed to be obscured by the various theories of the case and to fall through the cracks.

A few weeks ago, the Fourth Circuit issued a partial remand sending the case back to the lower courts and preserving the issues of the enforcement of the mortgage note and the amount that is actually owed on the note in light of the alleged creditor's prior actions and behavior.

This is a practical win for the homeowner, as the homeowner now has another chance to hold the alleged creditor to its burden of proof and to make sure that, even if such "creditor" establishes its right to enforce the note, it cannot collect any amount that has accumulated due to its own wrongful conduct and not through the fault of the homeowner.