Nice Vibes From Trial

I tried a case on Friday in St. Louis County. It was an interesting case, as although it had been on file since 2009, I got into the case on ... Tuesday. Yep, this Tuesday.

The reason I was willing to jump in was I had seen the issues that were going to be raised, and I have been trying this case in my head for the entire last year.

A securitized trust foreclosed in 2009. The lawyer for my clients claimed that they were not the holder in due course. They produced a note without an endorsement made out to Fremont Investment & Loan in discovery, and then, lo and behold, a different version of the same note with a blank endorsement from Fremont on the back.

I made two main arguments, which morphed to three by the end of the trial:

1. They were not a holder in due course, because the PSA requires four endorsements ON THE FACE of the note, and if they took this note, it was so irregular and incomplete as to not render them as a holder in due course.

2. They could not hold this note EVER because the PSA stated the type of note it could take, and when it could take it. In this case, by January 28, 2004.

By the end of trial, they had decided not to question their own representative, who was from Ocwen. That firm was not mentioned in the Prospectus or PSA. I questioned her a little, but the judge really grasped the main argument, so I kept my inquiry very minimal. I pointed out that she had no document that showed that this loan was owned by the trust.

The interesting this is, I'm pretty sure the record will show that they never once said that this trust owned or held the note. That was my third argument at the end. If it does end up at the appellate court, that's the out they can take without ruling on the validity of the trusts owning property that is clearly ultra vires.

But I think this case is going to turn out very nicely for the homeowners. It sure was a blast to work on.