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Foreclosure Case Killer(Konsulian)- The Default Letter

http://www.mattweidnerlaw.com

An often overlooked part of the whole foreclosure process is the default letter.  Read your note and mortgage carefully, (pay attention to paragraph 22).  When the banks drafted their form mortgage they included a paragraph that requires them to send the homeowner a very specific default letter…here’s the important part…..(wait for it)….they almost never send out the correct letter, and if they do not do the letter correctly….THEY CANNOT GET FORECLOSURE…it’s a failure of a condition precedent.

Florida’s Second District Court of Appeals recently affirmed the importance of fulfilling this condition precedent in the Konsulian decision….read this decision carefully because it affirms the basic law of contracts which holds that a contract is strictly construed against its drafter…the banks are big boys and girls, they hire (with your money) attorneys that make big, big money….it’s not unreasonable to require their clients to follow (PRECISELY) the contracts that they drafted!

Click below to read the case and especially read the law review article….

Second DCA Default Smackdown

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I'm wondering though if I stated that they didn't send the letter, wouldn't they just fabricate one and submit it to the court?

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William A. Roper, Jr.

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sirrowan said:

I'm wondering though if I stated that they didn't send the letter, wouldn't they just fabricate one and submit it to the court? 



sirrowan:

First, bear in mind that if you DID receive the letter, you might have some duty under the rules NOT to falsely deny receiving it.  In some places, you can generally deny things and simply put the plaintiff to its proof.  In other places and other circumstances, you might be required to specifically deny the satisfaction of particular conditions precedent in order for this defense to be effective.  And under the rules you may not be permitted to make a defense that you know to be untrue.

Under NO circumstances whould it ever be permissible for you to lie under oath and state that you didn't receive a notice of default when you had, in fact, received one.

*

But your question was about whether the plaintiff might not simply fabricate the notice.  The answer, I suspect is that a year or so ago, many of the foreclosure mills and/or the servicers might have donw just that.  But the servicers and the foeclosure mill law firms are now very much under a microscope.

While it is certainly possible that they might simply fabricate the notice, it may now have become too risky for them to do so.

In any case, they actually need to prove two things.  They need to prove WHAT THE NOTICE SAID by producing a copy of the notice.  And they also need to prove that the notice WAS MAILED.

The latter is rather problematic for them UNLESS they sent the notice via certified mail, which they may have.

It is problematic, because HOW would any business prove that they mailed a particular item?  Given any sort of general volume of communications traffic, NO ONE WILL REMEMBER sending any particular letter a year or two later.

It would be one thing if someone was testifying about the mailing of a really special and unique message.  If you had written just one really significant and moving letter, you would probably remember both writing it and also mailing it.  But when the letters are mass produced, often by computer, and taken in bulk to the post office, WHO would possibly remember mailing YOUR notice?

Since NO ONE will remember, the question then reduces to WHAT written record was kept of the fact of mailing.  If the lender has only a digital copy of the letter supposedly mailed and an indication that the letter was printed out, this does NOT prove actual mailing.  What might prove mailing would be someone checking off the individual items as they are dropped in the postal drop box.  OR the certified mail tracking number would rather conclusively show that the notice WAS mailed (IF it was mailed).  But absent a certified mail tracking number and receipt, proving the mailing would be next to impossible IF you have a sharp and well prepared attorney to impeach their authenticating witness.

Forging the letter might be relatively easyForging evidence of mailing is rather problematic.  Authenticating either the copy of the letter and/or proof of mailing can be problematic or impossible, particularly when the identity of the servicer has changed since the alleged default. 

NOTE:  I am NOT an attorney and this is NOT legal advice!

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William A. Roper, Jr.
See also our prior thread:

"FL Court of Appeals Reverse Another Case on Conditions Precedent: Konsulian v. Busey Bank, N.A."

http://ssgoldstar.websitetoolbox.com/post?id=5318869

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William A. Roper, Jr.
A crosslink to this related thread also belongs here:

"The Conditions Precedent Affirmative Defense"

http://ssgoldstar.websitetoolbox.com/post?id=5059262

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Mr. Roper,
Thank you very much for your excellent insight and research work. I learn so much from your posts and I am sure there are many people benefit from your insight as well. Please keep up the good work.
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This discussion thread is a great combination of three other topics and threads which have been recently re-awakened by some decisions in FL and OH. The three separate but "seemingly" intertwined issues are 1) Notice which is often confused with 2) Default letter (time period and amount to cure) and 3) Condition precedent.
ANY legal failure or failed combinations (of above three) are in fact Affirmative Defense (properly & timely plead). Once again Mr Roper has explained things properly, but I will add my 2 cents and comments below his.

CLEARLY there is NO dispute the "lender" (in OH and FL) is REQUIRED to provide NOTICE (to the borrower) prior to acceleration. The information is "usually" sent in the form of a letter and  "usually" spells out the claimed deficiency (amount due) and cure information (time frame to pay and amount to bring current) But it is specifically at the NOTICE component (and requirement) where most defendant/homeowners "Legally Fail" in being either unrepresented, Pro-Se, or poorly represented.

ROPER reply to sirrowan: ....your question was about whether the plaintiff might not simply fabricate the notice.....a year or so ago, many of the foreclosure mills and/or the servicers might have.....But the servicers and the foreclosure mill law firms are now very much under a microscope. While it is certainly possible that they might simply fabricate the notice, it may now have become too risky for them to do so.

OhioFraudclosure: Therefore when either the servicer or Predator Drone (Mill Attorney) provides a copy of default letter (that was purportedly mailed) or relies on (manufactured boiler plate) affidavits.... it is no longer a given or even acceptable - if challenged.

ROPER reply to sirrowan:: In any case, they actually need to prove two things.  They need to prove a) WHAT THE NOTICE SAID by producing a copy of the notice.  And they also need to b) prove that the notice WAS MAILED. The latter (b) is rather problematic for them UNLESS they sent the notice via certified mail.... It(a)is problematic, because HOW would any business prove that they mailed a particular item?...when the letters are mass produced, often by computer, and taken in bulk to the post office.....AND...... If the lender has only a digital copy of the letter supposedly mailed and an indication that the letter was printed out, this does NOT prove actual mailing..... OR the (b) certified mail tracking number would rather conclusively show that the notice WAS mailed (IF it was mailed).  But absent a certified mail tracking number and receipt, proving the mailing would be next to impossible IF you have a sharp and well prepared attorney to impeach their authenticating witness. Forging the letter might be relatively easyForging evidence of mailing is rather problematic.  Authenticating either the copy of the letter and/or proof of mailing can be problematic or impossible, particularly when the identity of the servicer has changed since the alleged default. 

OhioFraudclosure: Read again Mr. Roper's comments they are "dead-on". I'll fill in the spaces. NOTICE (usually by letter) is a pre-requirement and condition precedent to START the wheels in motion for a foreclosure filing. The notice MUST contain information showing a dollar amount (past) due and a total amount due (to bring the "loan" current). The letter must additionally inform you of the legal time frame (days) in which you have -to pay the loan current and avoid a default. (and condition that could set-off foreclosure)
It is HERE - again on the word NOTICE that the "lender" almost always failed. Most servicers and Predator Drone attorneys rely on a copy of a letter that was digitized (by LPS). The letter almost always fails at- PROOF of mailing  which also requires subsequent PROOF of DELIVERY. (Delivery is RECEIPT & Acceptance by defendant) Plaintiff is not entitled to any presumptions - especially if challenged. Most foreclosing entities LIED and/or attached bogus (un-mailed) letters or (claimed) CERTIFIED letter was sent (via affidavit) as their PROOF of mailing. They will not be able to prove either (if properly challenged). It is very problematic and an easy case turner (Reversal at summary judgment) If you properly plead and/or if they lied (But as Roper stated - you cant lie if you received and or signed for the certified mail).
Additional arguments can be made on the contents and substance of the DEFAULT LETTER and as and part of a CONDITION PRECEDENT, and all part of AFFIRMATIVE DEFENSE


NOTICE is a two-pronged test in Ohio (highlights are mine)
Natl. City Mtge. Co. v. Richards  Rendered on June 2, 2009.
{¶16} In her first assignment of error, Richards contends that the trial court erred by concluding that National City complied with the notice requirements in the Note and Mortgage and, accordingly, that National City satisfied a condition precedent to acceleration of the Note and foreclosure of the Mortgage.
{¶17} Both the Note and Mortgage contain provisions specifying requirements for giving notice. Paragraph 7 of the Note states, as follows:[A]ny notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address.Section 15 of the Mortgage similarly provides as follows:.....Notices. All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means.
{¶18} Richards maintains that National City failed to give her the required notice of default and opportunity to cure and that National City was, accordingly, not entitled to accelerate the Note or foreclose on the Mortgage. National City responds that Richards waived any right to challenge the acceleration by not denying its propriety in her answer and by not raising an affirmative defense with respect to failure of notice
{¶21} "Where prior notice of default and/or acceleration is required by a provision in a note or mortgage instrument, the provision of notice is a condition precedent," and it is subject to the requirements of Civ.R. 9(C). First Financial Bank v. Doellman,12th Dist. No.CA2006-02-029, 2007-Ohio-222,    {¶28} Here, National City.......mailed its notice of default to Richards only by certified mail, which was returned to National City unclaimed. National City did not mail a notice of default by ordinary mail, either contemporaneously with its certified mail notice or after return of the certified mail envelope. Accordingly, no presumption of delivery arose. Moreover, even if a rebuttable presumption had arisen upon National City's certified mailing, the presumption was decisively rebutted by the uncontradicted evidence that the certified mail was returned to National City unclaimed.{¶29} In a final attempt to demonstrate compliance with the requirements of the Note and Mortgage, National City suggests that the postal service's unsuccessful attempts to deliver the certified mail to Richards' property address equate to delivery, as permitted in the Note and Mortgage as an alternative to first class mail. We disagree. "Delivery" presumes the giving or yielding of possession or control to another. See Blacks Law Dictionary (7th ed.1999); Webster's Encyclopedic Unabridged Dictionary (Random House 1997). The postal service did not give or yield possession of the notice of default to Richards. To the contrary, each attempt by the postal service to transfer the notice to Richards failed, ultimately leading to the postal service's return of the notice to National City. Notification that certified mail is being held for a recipient is undeniably distinct from delivery of the certified mail contents. Here, the postal service's return of the certified mail envelope to National City eliminates any possible inference of delivery to Richards. {¶30} From the pleadings and the evidence in the record on summary judgment, we conclude, as a matter of law, that National City failed to give Richards the contractually required notice of default and an opportunity to cure her default before accelerating the balance due on the Note and initiating proceedings to foreclose on the Mortgage. Therefore, we sustain Richards' first assignment of error.

"Proper" NOTICE - MUST BE RAISED...see two case below...where in one the issue was raised and the other...having not
See: MTGE. ELECTRONIC REGISTRATION SYS., INC. v. VASCIK
See: WELLS FARGO BANK, NA v. Walker
There is a HUGE case before an Ohio Appellate court challenging the Certified Letter interpretation (ie delivery means Receipt) and therefore it also challenges foundation of OHIO law (in RICHARDS).
Again - Default (letter) and Condition Preceedent are additional and intertwined affirmative defenses.Judgment reversed and cause dismissed.


OHIO FRAUDclosure

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William A. Roper, Jr.

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OHIO FRAUDclosure said:

The letter almost always fails at- PROOF of mailing which also requires subsequent PROOF of DELIVERY. (Delivery is RECEIPT & Acceptance by defendant) Plaintiff is not entitled to any presumptions - especially if challenged.  Most foreclosing entities LIED and/or attached bogus (un-mailed) letters or (claimed) CERTIFIED letter was sent (via affidavit) as their PROOF of mailing. 


OHIO FRAUDclosure:

You are actually mistaken about the latter point as to proof of delivery, at least in respect of the notice of default, notice of grievance, notice of intent to accelerate and notice of acceleration in MOST jurisdictions.

Note the express language of the decision you are quoting above, which actually states otherwise:
"Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means."
The borrower should carefully read the express language appearing within the promissory note and the mortgage, deed of trust, security deed and/or other mortgage security instrument.

The Section will often be labeled "Notices" and often appears at paragraph 7 of the note and paragraph 15 of the standard Fannie Mae / Freddie Mac instrument.  It is likely to say something like:
"Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address."

"Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address is sent by other means."
There are two key ideas set forth in this language.  First, the borrower has expressly assented that first class mail is good enough.  Second, no proof of delivery is actually necessary, only proof of mailing.

*

At first blush, this would seem to absolve the plaintiff of any necessity in sending a notice by certified mail or similar means.  But this is NOT actually the case.  While the standard would seem to be that the plaintiff need only prove that it MAILED the notice and that these were mailed by first class mail, this still doesn't get them over the evidentiary threshold!

That is, WHO can validly truthfully testify to the FACT of the first class mailing?  What EVIDENCE can the plaintiff present that the notice was ACTUALLY MAILED?

Here, we come back to the points about hearsay, conclusory averments and the best evidence rule.  A conclusory affidavit from the robo-perjurer OUGHT NOT BE ENOUGH.
 
Review the facts and the law of your jurisdiction and MAKE YOUR STRONGEST ARGUMENT!
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I live in a non-judicial state.  My notice of default was sent certified, besides the notice on the door.  In fact I had a post office box and had to sign for 2 there-my husband's and mine sent separately.  They also sent it certified to my home address.  Had to sign twice again.  So there was no way I could ever say I did not get the notice of default.

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Omission on my part (OHIO FRAUDclosure) in above was noted by William Roper. I intended to include but omitted the word...CERTIFIED. This is when PLAINTIFF claimed NOTICE was accomplished by CERTIFIED MAIL (.."by other means")

...All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means.

Now corrected and inserted - properly - in quote below

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OHIO FRAUDclosure said:

The letter almost always fails at (Certified) PROOF of mailing which also requires subsequent PROOF of DELIVERY. (Delivery is RECEIPT & Acceptance by defendant) Plaintiff is not entitled to any presumptions - especially if challenged.  Most foreclosing entities LIED and/or attached bogus (un-mailed) letters or (claimed) CERTIFIED letter was sent (via affidavit) as their PROOF of mailing. 

When "bogus" captioned plaintiffs (Trusts - Trustees - Successor-in-interest) were cramming thousands of foreclosures through the Civil courts in OHIO (and other states) for awhile they relied on exhibits attached to the complaint. The notice exhibit appeared, at first blush, to be 1) a copy of a certified letter  2) a copy of a certified letter showing reverse side to be  (affixed to ?) a blank return receipt (certified mailing return receipt card) or 3) an affidavit averring "certified mail" was used for NOTICE (of default).

In all 3 above examples the previous omitted word CERTIFIED - was plaintiff's claimed method used (in foreclosure complaint) for required NOTICE. At this level - CERTIFIED mailing/letter - requires both PROOF of mailing (i.e tracking confirms method as certified) and PROOF of delivery (receipt by defendant party). 
Most plaintiffs failed at the CERTIFIED component if challenged either during discovery or at Civil/Trial level. Most other examples - are being "revealed" in published decisions (reversals of Summary Judgments) at the appellate level. This is also why these intertwined issues are more readily recognized, available, and being used as affirmative defense. 

However - William Roper is on target - as to remaining comments and notations especially as to the NOTICE component

William A. Roper Jr. : ...The borrower should carefully read the express language appearing within the promissory note and the mortgage, deed of trust, security deed and/or other mortgage security instrument.

The Section will often be labeled "Notices" and often appears at paragraph 7 of the note and paragraph 15 of the standard Fannie Mae / Freddie Mac instrument.

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reply to JUSTICE LOST - I'm assuming you were reading the post/topic and entire thread, so I'm confused by your response (question?) copied below
 
JUSTICE LOST:  I live in a non-judicial state.  My notice of default was sent certified, besides the notice on the door.  In fact I had a post office box and had to sign for 2 there-my husband's and mine sent separately.  They also sent it certified to my home address.  Had to sign twice again.  So there was no way I could ever say I did not get the notice of default.
 
As William A Roper Jr. stated, previously in the thread:.....
First, bear in mind that if you DID receive the letter, you might have some duty under the rules NOT to falsely deny receiving it.  In some places, you can generally deny things and simply put the plaintiff to its proof.  In other places and other circumstances, you might be required to specifically deny the satisfaction of particular conditions precedent in order for this defense to be effective.  And under the rules you may not be permitted to make a defense that you know to be untrue.

Under NO circumstances would it ever be permissible for you to lie under oath and state that you didn't receive a notice of default when you had, in fact, received one.

OHIO FRAUDclosure:
Without being condescending, you have received, and through a variety of methods, your "notice" and/or default letter. What are you seeking? Remember FRAUD and failure by the plaintiff in one area of the law is not an open door and invitation for FRAUD to be perpetrated on your end.
 
Good Luck in your endeavor to overturn(?) a previous injustice (foreclosure?)
OHIO FRAUDclosure
 
 
For transparency and clarity:  I am not an attorney and I am not offering legal advice. The OHIO FRAUDclosure blog - does not advise, respond or act on the behalf of any attorney or legal firm. I am here sharing knowledge garnered from 10 years in the financial & banking arena combined with a 5 year foreclosure experience.
OHIO FRAUDClosure
 
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William A. Roper, Jr.
I want to profusely thank OHIO FRAUDclosure for calling the Richards case to our attention in respect of the conditions precedent defense.

Upon further reflection, this is really a singularly important case and probably deserves its very own thread.  The case was decided at a time when I was serving overseas in a combat zone, which is probably why it escaped my notice (or was overlooked or forgotten) before.

*

I want to elaborate on my prior comments and make the following additional comment.

I had originally pointed out that plaintiff have a proof problem in proving the mailing of the notice.

That is, WHO can testify to the fact that a particular letter, a valid copy of which appears within the plaintiff's business records was actually mailed by first class mail?

In proving mailing, the best proof would probably be a certified mail tracking receipt, signed certified mail return receipt (green card) and/or certified mail tracking report from the U.S. Postal Service web site.

But the Richards case teaches us that even though first class mail is all that is actually required, when another method is used, it is also necessary to show actual delivery.  If the plaintiff alleges mailing via certified rather than first class mail, then the plaintiff must show not only that the letter was mailed, but also that it was actually delivered.

As explained in the Richards decision, the Lender could overcome this problem by both mailing the letter first class and also mailing it certified.  But even so, the plaintiff is going to need to prove the proper mailing via first class mail.

*

It is not at all uncommon for the robo-perjurers who are signing affidavits to sign affidavits containing patently false averments.  And it is certainly true that if the affidavits claims to have been made on personal knowledge and avers that the notice was mailed, this becomes challenging to impeach or rebut without deposing the affiant.

Note that it is NOT enough for the defendant borrower to contest the mailing of proper notice by an affidavit swearing that the notice was not received when the plaintiff's witness avers that the notice was mailed by first class means.  Receipt is not necessary in such circumstances.  But actual delivery MUST be proven when means other than first class mail are used.

*

While the Richards decision is not going to be authorititative outside of Ohio, the logic of the decision seems to me to be unassailable and I would recommend that defendants in other jurisdictions consider citing this case in appropriate circumstances when the facts seem to fit!  Discuss this case with your lawyer if there is an absence of proof as to mailing and/or delivery of the notice. 
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VALENCIA v. Duetsche Bank National Trust    June 22, 2011 
...amazingly...the same problem ...failure of a condition precedent to set off the Foreclosure action...this time from Florida - NO Proof of Notice of DEFAULT (and cure). Then "questionable" evidence entered - post judgment

Below paragraphs are taken from the short 2-page Appellate decision
(Bolding, highlighting, & alpha-numeric notations - from me - for emphasis)
 
 
 ....The mortgage contained a 1) written requirement that the borrowers be 2) given written notice a)specifying the default, b)the action needed to cure the default, and c) the time period of thirty days to do so....
then...
amazingly(?) the following (fraud?) happened

.....For some reason the lender had not retained a hard copy of the letter notifying the borrowers of the default, but instead produced two possible letters (what is a possible letter?) that could have been sent (could have been sent?)... Both letters contained a cure date of October 8, 2003. Although the original letter was found (created?) by appellants after the summary judgment hearing, it contained a different date (for cure?) and different amount owed....(are they serious?)

 

OHIO FRAUDclosure: Move along.....nothing to see here ....just two different examples...of a found ( at a later date)...required notice....that may... have been sent (no documentation)....and the found letters only had a "minor difference" - showing an incorrect date and different amount due and owing. Other than these small "technical problems"....this is just another BANK ......looking for a "free house" (through FRAUDclosure)



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Sorry missed the link and credit...from...Matt Weidner Blog
Valencia v. Duetsche Bank

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Don
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Sorry missed the link and credit...from...Matt Weidner Blog
Valencia v. Duetsche Bank



Good point relating Valencia to this case.

But why credit Matt Weidner?  Mr. Roper posted this case late this afternoon.  He credited Alina.  Maybe Mr. Weidner learned about the case from Alina, too.  More likely, he picked it up from the Forum, like he does a lot of his material.

Usually cases are discussed here at the Forum before Mr. Weidner gets around to them.

Disputes of Fact Raised By Plaintiff's Evidence Precludes SJ: Valencia v. Deutsche Bank (06/23/2011 06:30 PM)

 
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Good "catch" Don....I'm embarrassed to now see that I had missed William A. Roper excellent comments and even duplicated some commentary  - on the case. I wish he had included them within this previous day thread. However, with your link and his shared knowledge, I think our readers will pay "better" attention to NOTICE.... Or hopefully get their attorneys to read some of these more recent cases, posts, and links.  Thanks

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William A. Roper, Jr.
OHIO FRAUDclosure:

Thanks again for calling our attention to Richards!  And your relating the Valencia decision to Konsulian as well as this thread was also a very good catch!

Alina actually tipped me off about Valencia Wednesday evening, so she was certainly well ahead of everybody else!  I was remiss and didn't get around to posting the case here at MS Fraud until Thursday evening.  By then, the 4closurefraud.org site had also already picked it up, from Alina or independently.  I do not know for sure if Mr. Matt Weidner picked up the case from Alina, 4closurefraud, or from the Forum, but this is certainly a useful decision to use as a teaching point about conditions precedent and disputed facts in summary judgment.

Keep up the good work!
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