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U.S. Court of Appeals for the Ninth Circuit Summaries for July 15, 2015

justia.com | July 15, 2015

Foley v. Biter
Docket: 12-17724 Opinion Date: July 14, 2015
Areas of Law: Criminal Law

Petitioner, convicted of first degree murder and related charges, appealed the district court's order denying his motion for relief from judgment pursuant to F.R.C.P. 60(b)(6). Petitioner properly filed a petition for habeas corpus in federal district court in 2001; the district court denied the petition in 2004; and petitioner's counsel, forgetting that he represented petitioner, did not inform petitioner of the denial. Petitioner discovered that his petition was denied six years later when he sent a letter inquiring about his status. The court concluded that the district court erred by finding that petitioner was not abandoned by his attorney; counsel's failure to communicate with petitioner, to preserve petitioner's ability to appeal, and to withdraw from the case clearly constituted abandonment; the district court abused its discretion to the extent the district court relied on lack of diligence or failure to file within a reasonable time to deny the motion for relief; and petitioner's motion for relief was timely. Accordingly, the court reversed and remanded for further proceedings.

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Johnson v. FHLMC
Docket: 13-35596 Opinion Date: July 14, 2015
Areas of Law: Banking, Real Estate & Property Law

Plaintiff, a homeowner, appealed the dismissal of his action against Freddie Mac, for breach of contract and breach of fiduciary duty where Freddie Mac purchased plaintiff's mortgage from Taylor Bean, the loan originator, on a secondary market. Taylor Bean failed to pay the insurance premium from an escrow account and caused plaintiff's insurance to be cancelled. The court concluded that plaintiff failed to allege facts that, if true, would establish that Freddie Mac had a contractual duty to service the loan where the Deed of Trust expressly disavows any assumption of servicing obligations by a subsequent purchaser of the loan, and Freddie Mac never expressly assumed any such obligations. The court concluded that Washington law did not prohibit this arrangement and that this arrangement is typical for such home loans. Finally, the court concluded that plaintiff's breach of fiduciary duty argument failed because Section 20 of the Deed of Trust where the duty to hold the money for the insurance premiums in escrow remained with the loan servicer, Taylor Bean. Accordingly, the court affirmed the judgment.

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Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager


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