Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
In several prior posts, I have identified judicial estoppel as one of the rather key doctrines which defendents need to be arguing in two situations:
  • When MERS is the plaintiff in a judicial foreclosure
  • When a plaintiff FALSELY PLEADS that it is the owner and holder and the case is dismissed without prejudice for lack of standing and then refiled by a plaintiff making NEW and difference claims
In reviewing North Carolina law on judicial estoppel, I ran across a marvelous recent North Carolina Supreme Court case that explains and distinguishs judicial estoppel in a more complete and compelling way than any other case I have ever read.  It also explains and distinguishes several other estoppel concepts.

While this case is authoritative as to judicial estoppel ONLY in North Carolina, it is informative about the doctrine as it may be applied elsewhere.  And it also has a number of United States Supreme Court case citations embracing judicial estoppel in the Federal Courts. 


The case is:
Whitacre P'ship v. BioSignia, Inc., No. 617PA02 , SUPREME COURT OF NORTH CAROLINA, 358 N.C. 1; 591 S.E.2d 870; 2004 N.C. LEXIS 16, September 8, 2003, Heard in the Supreme Court , February 6, 2004, Filed.
Since it is a recent case, the full text is available for FREE at the LexisOne website.  The case is also directly available online at the North Carolina Supreme Court website at: 

* * *

I excerpt below several of the key passages within Whitacre P'ship v. BioSignia, Inc.:

"The dispositive issue before this Court is whether the doctrine of judicial estoppel bars Whitacre Partnership from asserting ownership of the stock in question based on the Whitacres' earlier representations before a bankruptcy tribunal. This case thus requires us to determine whether the doctrine of judicial estoppel is a part of the common law of North Carolina. We hold that it is, and hereby join at least thirty-five other states and the United States Supreme Court in recognizing the doctrine. See New Hampshire v. Maine, 532 U.S. 742, 749, 149 L. Ed. 2d 968, 977 (2001); Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 251-52, 489 S.E.2d 472, 477 (1997); Fay v. Fed. Nat'l Mortgage Ass'n, 419 Mass. 782, 787-88, 647 N.E.2d 422, 426 (1995); Douglas W. Henkin, Comment, Judicial Estoppel -- Beating Shields into Swords and Back Again, 139 U. Pa. L. Rev. 1711, 1756-60 (1991) (appendix listing thirty-three states as having accepted judicial estoppel)."

"In New Hampshire, the United States Supreme Court implicitly recognized the doctrine's deep roots in American jurisprudence, beginning its discussion of the law of judicial estoppel with the following quotation from the 1895 case, Davis v. Wakelee: “'Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken . . . .'” New Hampshire, 532 U.S. at 749, 149 L. Ed. 2d at 977 (quoting Davis v. Wakelee, 156 U.S. 680, 689, 39 L. Ed. 578, 584 (1895)). The Court stated that “[t]his rule, known as judicial estoppel, 'generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.'” Id. at 749, 149 L. Ed. 2d at 977 (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8, 147 L. Ed. 2d 164, 180 n.8 (2000))."

[New Hampshire = New Hampshire v. Maine, 532 U.S. 742, 749, 149 L. Ed. 2d 968, 977 (2001)]

"The Court stated that these facts brought the case “within the principle of common law, that when a party asserts what he knows is false, or does not know to be true, to another's loss, and to his own gain, he is guilty of a fraud; a fraud in fact, if he knows it to be false, a fraud in law, if he does not know it to be true.”  Id. at 336, 14 L. Ed. at 170. The Court concluded, “It does not carry the estoppel beyond what is strictly equitable, to hold that the representation which defeated one action on a point of form should sustain another on a like point.” Id. at 337, 14 L. Ed. at 170."

[The Court = U.S. Supreme Court in Davis v. Wakelee, 156 U.S. 680, 689, 39 L. Ed. 578, 584 (1895)]

"The Court stated that the purpose of the doctrine was “'to protect the integrity of the judicial process,'” id. at 749, 149 L. Ed. 2d at 977 (quoting Edwards, 690 F.2d at 598), “by 'prohibiting parties from deliberately changing positions according to the exigencies of the moment,'” id. at 750, 149 L. Ed. 2d at 977 (quoting United States v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993), cert. denied, 511 U.S. 1042, 128 L. Ed. 2d 211 (1994)). Noting that “'the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,'” id. at 750, 149 L. Ed. 2d at 978 (quoting Zurich Ins. Co., 667 F.2d at 1166), the Court enumerated three factors that “typically inform the decision whether to apply the doctrine in a particular case.” Id. at 750, 149 L. Ed. 2d at 978. First, a party's subsequent position “must be 'clearly inconsistent' with its earlier position.”   (See footnote 7)  Id. (quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999), cert. denied, 529 U.S. 1082, 146 L. Ed. 2d 510 (2000)). “Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding” might pose a “threat to judicial integrity” by leading to “'inconsistent court determinations'” or “'the perception that either the first or the second court wasmisled.'” Id. at 750-51, 149 L. Ed. 2d at 978 (quoting United States v. C. I. T. Constr. Inc., 944 F.2d 253, 259 (5th Cir. 1991) (inconsistent court determinations) and Edwards, 690 F.2d at 599 (risk of either court being misled)). Third, courts consider “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 149 L. Ed. 2d at 978."

[The Court = U.S. Supreme Court in New Hampshire v. Maine]


Quote 0 0
United States Supreme Court Case on Judicial Estoppel: New Hampshire v. Maine

A syllybus and full text copy of the United States Supreme Court decision in New Hampshire v. Maine is available at the Cornell University Law School's Legal Information Institute web site at:

The complete citation as it appears at LEXIS is:

New Hampshire v. Maine, No. 130, Orig. , SUPREME COURT OF THE UNITED STATES, 532 U.S. 742; 121 S. Ct. 1808; 149 L. Ed. 2d 968; 2001 U.S. LEXIS 3981; 69 U.S.L.W. 4393; 2001 Cal. Daily Op. Service 4303; 2001 Daily Journal DAR 4303; 14 Fla. L. Weekly Fed. S 283, April 16, 2001, Argued , May 29, 2001, Decided.

Quote 0 0
The servicer in our foreclosure case made allegations in its complaint that are directly contradicted by the allegations it made in our Bankruptcy proceeding a year ago. I asked a law professor I met at a social event how they can argue one way in Bankruptcy Court and differently in a foreclosure case. He said that a plaintiff cannot change its position like this and are bound by their original representations in the Bankruptcy court by a concept called "judicial estoppel".

When I searched for mortgage cases on this, I found this message thread from five years ago by a William A. Roper, Jr.. Does anyone know of a mortgage foreclosure case in which a defendant plead judicial estoppel and used this doctrine to successfully oppose a foreclosure suit?

As far as I have been able to find out, Mr. William A. Roper, Jr. is the only attorney to make this argument. But this is what the law professor recommended, too.
Quote 0 0
Go on Google Scholar for your jurisdiction and search for "judicial estoppel" + foreclosure
Quote 0 0
Write a reply...