The Webster-Merriam Dictionary defines the verb “corrupt” to mean:
: to cause (someone or something) to become dishonest, immoral, etc.
: to change (something) so that it is less pure or valuable
: to change (a book, computer file, etc.) from the correct or original form
It is a basic principle of Constitutional law that the legislative branch passes bills, which when approved by the Governor become statutes if consistent with the Constitutions of the United States and Washington. When private disputes arise to which a statute applied courts must apply the law to the facts before them.
In many cases this will require a court to determine the meaning of a statute in order to apply the facts to the the private dispute they have been asked to resolve. Such was the situation when the Ninth Circuit Court of Appeals was asked to apply the following provisions of the DTA to Travis and Danielle Mickelsons’ case against Chase Home Mortgage. The statute in question stated:
(3) The trustee or successor trustee shall have no fiduciary duty or fiduciary obligation to the grantor or other persons having an interest in the property subject to the deed of trust.
(4) The trustee or successor trustee has a duty of good faith to the borrower, beneficiary, and grantor.
Although there is nothing ambiguous about the language “the successor trustee shall have no fiduciary duty or obligation … to persons having an interest in the property subject to the deed of trust”, three judges of the Ninth Circuit Court of Appeals, Berzon, O’Scanlon, and of the Court of Appeals, ignored this. They wrote:
Although recent amendments to the DTA have lessened the duty of care a trustee owes the parties to a non-judicial foreclosure, see 2009 Wash. Legis. Serv. ch. 292, § 7 (S.B. 5810) (West) (codified at Wash. Rev. Code § 61.24.010(4)), NWTS’s signing agreement with MERS and its limited power of attorney for Chase Home Finance LLC do not breach even the more rigorous pre-amendment standard. Those agreements did not compromise NWTS’s capacity to exercise its discretion as trustee. See Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 295 P.3d 1179, 1190 (Wash. 2013); see also Cox v. Helenius, 103 Wn.2d 383, 693 P.2d 683, 687 (Wash. 1985) (tolerating the appointment of a beneficiary’s lawyer as trustee absent “an actual conflict of interest”).
It is a principle of statutory construction that courts must follow statutes which are plain on their face. There is nothing ambiguous about this statute. NWTS was precluded from having any fiduciary duty to either MERS or Chase Home by the statute by the clear language of the statute; even if one accepted these judges erroneous interpretation of Cox. This is because the it is the clear language of the statutes which controls: the trustee cannot have owe any fiduciary interest to persons having an interest in the property subject to the deed of trust.
One wonders why the Court did not discuss the statute. The mystery grows as one considers other rulings coming out of our courts that deny borrowers any discovery regarding who owns their note and mortgages when Washington courts have imposed on buyers the duty to know this.
Clearly, the Catch 22 for homeowners the Courts have created should cause the public concern. Have the courts become involved in a political process? Are Courts now inappropriately deciding how wealth should be distributed among private parties, instead of fairly resolving disputes fairly and equitably?
Should we continue our court system in its present form?
FULL DISCLOSURE: I acted as lead attorney in both of the cases discussed below, which were decided against my clients by different courts. You can determine for yourselves whether my complaints are mere “sour grapes” by examining the legal arguments which follow.
MICKELSON Trustee Argument
MICKELSON Borrower Argument
Ninth Circuit Memorandum Decision Mickelson Decision
BORROWER’S Statement of Grounds for Direct Review
STATEMENT AND MOTION BEFORE WASHINGTON SUPREME COURT Petitioner’s Motion for Discretionary Review
#scottstafne #judicial corruption #corrupt #Washington deed of trust act