The Idaho Supreme Court handed down a substitute opinion (withdrawing its prior January 25, 2012, decision) in the case Trotter v. BNY as trustee for the CWALT, Inc Alternative Loan Trust 2005-28CB:
Trotter v. BNY as trustee for the CWALT, Inc Alternative Loan Trust 2005-28CB, No. 38022 (Idaho 2012)
The decision will come as no surprise to those following Mr. Roper's posts over the years. The court held precisely as Mr. Roper tells us it should.
Plaintiff-Appellant Vermont Trotter brought a case against Bank of New York in Idaho Court. Idaho is a non-judicial foreclosure state. Within his allegations, Mr. Trotter alleged that BNY lacked standing to foreclose.
The Idaho Supreme Court tells us:
"Trotter argues that before a party may foreclose under the Act, it must establish its standing to foreclose by proving that it is the current owner of the note and mortgage. At oral argument before this Court, Trotter also suggested that a trustee may not initiate nonjudicial foreclosure proceedings under the Act unless it has authorization from the beneficiary. We disagree. While it is true that a party must have standing before it may invoke the jurisdiction of a court, the foreclosure process in the Act is not a judicial proceeding. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 46 n.1, 137 P.3d 429, 433 n.1 (2006). Instead, “[t]he procedures to foreclose on trust deeds outside of the judicial process provide the express-lane alternative to foreclosure in the judicial system and strip borrowers of protections embedded in a judicial foreclosure.” Id. Thus, as an “alternative” that is “outside the judicial process,” the Act sets forth all of the requirements to foreclose on a deed of trust.
Compare what Mr. Roper taught us in this post from 2008:
Quote: Standing is an Issue in a Judicial Foreclosure Setting
IT IS ESSENTIAL THAT FOLKS UNDERSTAND THAT THE ISSUE OF STANDING APPLIES IN THE INSTANCE OF JUDICIAL FORECLOSURES. IN NON-JUDICIAL FORECLOSURE STATES, WHERE A FORECLOSURE IS BY PRIVATE POWER OF SALE PURSUANT TO A DEED OF TRUST, THE MORTGAGE INVESTOR IS NOT SEEKING TO INVOKE THE AUTHORITY AND POWER OF THE COURTS, SO STANDING IS NOT AN IMPEDIMENT. THERE ARE OTHER POSSIBLE DEFENSES IN THESE STATES, BUT STANDING IS NOT THE CENTRAL DEFENSE.
This brings us back to Moose's ongoing admonition that it is ESSENTIAL that you get good, competent legal counsel!
Hopping on this forum the night before a Court appearance and asking for advice without even identifying your STATE and failing to include critical details of your situation and case is a prescription for disaster!
Mr. Roper's post of 01/29/08 at 03:29 AM within thread "MERS Info needed"
Quote: It is my understanding that Alabama is a non-judicial foreclosure state. Consequently, usually a foreclosure is accomplished by private power of sale pursuant to a deed of trust.
When we have discussed standing as an issue, we are talking about a plaintiff's entitlement to use the courts to seek a remedy. Non-judicial foreclosure does NOT typically involve use of the courts to acquire title to a property. Consequently, standing is NOT a core defense in a non-judicial foreclosure setting.
Typically, post-foreclosure, the BUYER at the non-judicial private sale uses an ejectment action to eject -- similar to eviction -- the owner from his or her home. Perhaps you are now facing an ejectment action.
There ARE some viable defenses in a non-judicial foreclosure and issues which can be raised in an ejectment proceeding. Most of these relate to the regularity of the private sale and the validity of the deed given by the trustee.
I HOPE YOU HAVE A VERY GOOD ATTORNEY! YOU NEED GOOD REPRESENTATION, A STRONG DEFENSIVE PLEADING, AND PROPER PREPARATION IDENTIFYING THE DEFECTS IN THE PRIVATE SALE IN ORDER TO HAVE MUCH CHANCE OF SUCCEEDING IN THIS SORT OF PROCEEDING.
THERE IS VERY LITTLE THAT PEOPLE ON A THIS MESSAGE BOARD CAN DO TO HELP YOU AT THIS LATE HOUR! BEST OF LUCK!
Mr. Roper's post of 01/29/08 at 12:50 AM within thread "Suit claims Fidelity abuses homeowners"
These are merely two of hundreds of posts by Mr. Roper on this subject.
Swindlers have been propagating the MYTH that a standing defense can be raised in non-judicial states. This myth helps support the sales of millions of dollars in scam forensic loan audits and mortgage securitization audits.
The Idaho Supreme Court also briefly addresses and dismisses another argument that the swindlers are also using as a pretext for their debt elimination scams. This is the false argument that a borrower might be absolved of responsibility for the debt by the payment of some insurance claim or other default risk arbitrage technique.
Here at the Forum, Mr. Roper and more recently others, including myself, have repeatedly challenged the swindlers to identify any statutory basis or case law supporting their absurd arguments. Of course, there is never any actual case law support. Proponents of this nonsense simply quote other swindlers, such as Neil Garfield, in support of these vacuous arguments.
The reason to ask for support for their propositions, is that absent some statute or case law to support their argument, the argument simply fails.
Here is what the Idaho Supreme Court had to say:
"Trotter’s arguments that (a) MERS had no authority to assign the deed of trust to Bank of New York, and (b) his loan obligation may have been satisfied by an insurance policy, thereby precluding foreclosure, are not supported with relevant legal authority.
The Idaho Appellate Rules require an appellant to support its contentions “with citations to the authorities, statutes and parts of the transcript and the record relied upon.” I.A.R. 35(a)(6). Thus, it is “well settled” that an issue on appeal will not be considered if it is “not supported by propositions of law, authority, or argument.” Bowles v. Pro Indiviso, Inc., 132 Idaho 371, 376, 973 P.2d 142, 147 (1999) (quoting State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996)). Even where an issue is “explicitly set forth in the party’s brief” as one of the bases for appeal, if it is “only mentioned in passing and not supported by any cogent argument or authority, it cannot be considered by this Court.” Dawson v. Cheyovich Family Trust, 149 Idaho 375, 382-83, 234 P.3d 699, 706-07 (2010) (citing Inama v. Boise Cnty. ex rel. Bd. of Comm’rs, 138 Idaho 324, 330, 63 P.3d 450, 456 (2003)).
. . .
Trotter also mentions in his initial brief that summary judgment was not appropriate because his loan obligation may have been satisfied by insurance payments after it was securitized and placed in a mortgage loan trust. In support of this assertion of error, Trotter cites no legal authority, but instead refers the Court to the allegations in his original complaint. This is insufficient to satisfy I.A.R. 35(a)(6). Because he mentions this argument only in passing and without supporting argument or authority, the argument is waived and we decline to consider it."
The insurance argument has no legal merit whatsoever. Swindler Neil Garfield is a major proponent of this idiotic argument. He uses it to support his sales of forensic loan audits and mortgage securitization audits, as well as to profit from referral of distressed borrowers to other crooked attorneys in his syndicate.