• November 7, 2012

Whose woods these are I think I know.

His house is in the village though;

The woods are lovely, dark and deep.

But I have promises to keep,

And miles to go before I sleep,

And miles to go before I sleep.

Robert Frost (“Stopping By Woods on a Snowy Evening“)

No idea what Frost was talking about, but how does he know who owns the woods?  Notice that he says he thinks he knows…

It is not these first lines, actually, but the last lines that first came to mind when I noted the Fourth Amended Class Action Complaint in the Gewecke v. U.S. Bank, N.A., as trustee for CitiGroup Mortgage Loan Trust 2007-AMC1, et al.  But the ambiguity of ownership at the start and the idea of “promises to keep” at the end also resonate with the sequelae of the mortgage meltdown…

Imagine that Steve borrows money from Andy and therefore owes Andy money (“the debt”) and Andy sells that debt to Betty who sells it to Cathy who sells it to Dan.  And then Steve stops making payments on the debt.  Dan wants to take steps to collect.

Steve, having been told (in very dense “legalese” among a large pile of documents) that his debt could be “assigned,” nevertheless argues that Dan cannot collect on the debt because Dan never loaned Steve money.  And, Steve argues, Andy cannot collect on the debt because he no longer owns it.

Sounds too good to be true for Steve, doesn’t it?

But the fundamental point of the Gewecke complaint seems to be that there was an impermissble “A to D assignment” (see Complaint, p.9, Paras. 32-35).  That is, using our metaphor of interpersonal lending/borrowing above, the argument is that Andy, after the fact, “assigned” Steve’s debt to Dan at a time when Andy no longer owned the debt so that Dan could collect on the debt — there was no “chain of assignment” progressing A-to-B-to-C-D.

This hyper-simplification of the Gewecke Fourth Amended Class Action Complaint may be missing some fundamental points that could shift one’s view of the case toward either side.  And there are undoubtedly myriad complexities at every juncture in this thousand-branched beast of a class action case.

So what can we predict?  A great deal of work for prominent members of the Twin Cities class action bar on both sides, possibly for several more years.  We can predict nothing else (and maybe some huge global settlement is a day or two away).

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