AN INCREDIBLY BAD DECISION: FRAIS V FORECLOSURE ASSET SERVICES

His friends called him Jimmie.  As he sat down, gun in hand, his feelings were chaos. Anger, emptiness, sadness, shame.  He raised his head; glanced at the sky then back to the crumpled foreclosure notice dropped beside him.  Then he looked at the gun he held aimed at his face.  For a moment he strained to look inside its barrel.

A tear rolled slowly down his face.  Jimmie knew he was about to break down in tears.  He didn’t want that.  He needed courage.  So he quickly pulled the trigger and the bullet tore through his face ending his life because of he felt the shame of an illegal foreclosure.

Even before his wife and three children held the memorial service, the servicer initiating the foreclosure cancelled the sale.  Not out of any sympathy for the wife and children but to stop the family from filing any claim against the lending industry claiming the obviously illegal foreclosure proceedings were a proximate cause of Jimmie’s suicide.

In almost every other area, people and business entities are liable for the damages their negligent or intentional conduct foreseeable causes others.  In the past the Courts have provided an exception for the government; now they have extended the same immunity to the wealthy.  It is a sad day for Washington.

Doesn’t it make sense that our courts would want to ensure those claiming to own peoples’ homes as security perform nonjudicial foreclosures consistent with Washington law each time that industry attempts to take a home?  A majority of the Washington Supreme Court apparently does not think so.  In a case released last Thursday, a majority of the Washington Court ruled that if an illegal foreclosure is stopped before the sale, then those injured, like Jimmie’s children and wife in this fictional example, cannot collect any damages.  Here is a copy of the this incredibly poorly reasoned case, Frias v Asset Foreclosure Services

In Frias a majority of Washington’s Supreme Court actually said that no matter how much personal harm had been caused by an illegal foreclosure, even if it causes a wrongful death, the lenders cannot be held liable if they simply stop the illegal sale.  Then, according to the Court, the lending industry can begin the sale again.  It doesn’t even have to it right the second time and cause even more personal injuries without ever being liable, so long as it cancels the sale.  How does cancelling the sale undo the personal injuries the lending industry and servicing industry is causing people?

“Too bad, wife and kids”, the Supreme Court explained the legislature didn’t care.  So the judges can’t.  Pretty bogus reasoning, if you ask me.  Judge Wiggins arrives at a better and more reasoned result.  Under Wiggins analysis, lenders and servicers, just like every one else, are responsible for the injuries they cause others.

Why did a majority of Washington State judges decide the rich are immune from the damages they people cause in Washington?  They certainly have not done this for any other group, except lenders.  Justice Gordon McCloud found similar immunities provided by the legislature were not appropriate for medical providers, notwithstanding the good medical providers do for people. Schroeder v Weighall  Similarly, the Washington Supreme Court held that the legislature could not provide similar immunities for emplyers where doing so inflicted upon the court’s authority. Blanchard v Golden Age Brewery Co., 188 Wash. 396, 63 P. 17 (1936).  Why is the lending and servicing industry afforded such privileges.

It is not as if the Court did not know that there were serious questions regarding whether the legislature could take away the exclusive authority and responsibility to hear these cases, before it absolved the wealthy of any responsibility for the personal harms it causes.  The Chief Justice refused the Amicus Brief challenging the Court’s subject matter jurisdiction to even be considered.  Here is a copy of that Amicus Brief.

If you think this decision as wrong as I do, you probably want to do something about it.  Unfortunately, there is little, if anything, you can do.  Although four justices of the Supreme Court are running for office this election, the author of the opinion Justice Fairhurst is running unopposed.  If you want to let her know how you feel about this incredibly stupid opinion don’t vote for her, or write “no”, or if you can do so write in the name of someone who you believe would be more fair than her.

Justice Stephens also signed the majority opinion.  Look closely at her opponent.  Someone with more compassion for the people might be a better choice.

Mary Yu is sunning unopposed.  She is a new member to the Court with a reputation for good legal reasoning and integrity while on the Superior Court bench.

Charles Johnson voted with the minority in favor of Judge Wiggins well reasoned opinion.  In my opinion, Judge Johnson has been, as in this case, more consistently been right than wrong.  I support his reelection, with the caveat that I know little about his opponent.  Perhaps this may seem an inappropriate thing for me to do given that I was in a similar situation as an opponent when I ran against Susan Owens, my judgment  is nonetheless that I would not be willing to trade Johnson in for someone I know little about.

As for Susan Owens, you can be sure that I would have voted differently from her in this case.

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About Scott . Stafne

Mr. Stafne is very experienced in property rights, including banking wrongs and foreclosure prevention; Constitutional Law (under the United States and Washington State Constitution); Appellate law; land use law; personal injury law. Scott has recently become a media focal point as his win record of foreclosure defense cases against the largest financial institutions, servicers, trustees as well as MERS have blazed the trail toward ending the foreclosure crisis and representing the rights of the homeowner above the profits and secret dealings of corporations.   Scott sees law as a foundation for establishing a system of twenty first century liberties for the people; and for removing that corruption of power within our government which makes the achievement of real purpose beholden to only money.   Scott Stafne has been an attorney since graduating from the University of Iowa in 1974. He worked for a large law firm in Indianapolis (Baker & Daniels) for two years. Thereafter, he moved to Seattle Washington in order to obtain a Masters of Law degree from the University of Washington, which he obtained in 1977. Scott practiced law while going to graduate school and has practiced ever since.   This is a personal blog, and does not constitute legal advice in any form, and is not necessarily reflective of the policies or opinions of Stafne Law Firm. Visit the Law Firm: http://stafnetrumbull.com Visit the Google+ Page: https://plus.google.com/+ScottStafne Visit the Facebook Page: https://www.facebook.com/scott.stafne.75   *Web Developer: David J. Posel
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