Tuesday, June 15, 2010

My Actual Case Results: Mortgage Issues.

Last week Friday, the Dane County Circuit Court, Judge McNamara, denied a motion for summary judgment by the plaintiff in BankUnited v. Egeland, 07 CV 3551.

BankUnited, which commenced this foreclosure on September 25, 2007 but hasn't yet gotten across the finish line, moved for summary judgment, claiming that the defendants were in default of the note. Their motion consisted of an affidavit from a VP at the Bank, and an affidavit from the lawyer, with no brief. The motion stated expressly that it relied on the two affidavits filed simultaneously with the motion.

In response, our firm asked the Court to deny summary judgment on Kalal grounds and because material issues of fact remained to be decided.

The Kalal portion of the argument pointed out that the VP affidavit included some statements made "on information and belief" and that the amounts sought were lump-sums in excess of $400,000, with no mention made of how the VP came up with the information, and no breakdown of the money into principal, interest, fees, and costs.

The material issues of fact raised included a claim that the Bank had unclean hands in how it set up the escrow for taxes, how it raised the payment when that escrow proved insufficient, how the Bank handled payments during an intervening chapter 13 bankruptcy, and finally, how the Bank handled the defendants' application for a HAMP modification of their loan.

The Court denied the motion for summary judgment and set the matter for a four-day trial in January, 2011.