3d DCA Watch -- Leave Good Footprints Behind.

Hi kids!

It's Wednesday, which means we get to enjoy yet another round of wit, wisdom, and random musings from our favorite group of bunker dwellers, so let's get right to this week's apodictic opinions:

Bank of New York v. Rodgers:

Judge Schwartz claims the digestive tract of the clerk's office is responsible for a lost mortgage note:

The plaintiff, designated as the Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, the alleged holder of a note and mortgage, seeks review of a final judgment in favor of the defendants mortgagors borrowers in an action to re-establish the note (which was lost, having disappeared in the bowels of the clerk’s office after being filed in a prior proceeding) and to foreclose the mortgage.

 Situation normal all.....

But Judge Shepherd says the clerk's office did not in fact eat the Bank's homework:

The file contained neither the original note nor the original mortgage. Ms. Blackman admitted in her testimony she “[had] no knowledge of the last [entity] who had it or anything else about the original note.” She thought the note was lost by counsel during the course of a prior foreclosure action filed by JP Morgan Chase in January 2003, but upon being shown a copy of the complaint filed in the 2003 foreclosure action, acknowledged that action, like the present one, also contained a claim for re-establishment of lost note. 2, 3 Thus, it cannot be said, as the majority asserts, that the note “disappeared in the bowls [sic] of the clerk’s office after being filed in a prior proceeding.”

Hold on -- did it disappear in the "bowels" or in the "bowls" of the clerk's office, or in someone else's bowels or bowls entirely?

(Finally, a substantive discussion on the blog!)

But wait -- Judge Shepherd is not done:

It is apodictic there can be no cause of action to foreclose a mortgage unless we know where the paper is and that it actually represents something.

Yes!!

(Actually, I think Judge Shepherd has the better argument here).

Sunbeam v. Mitzel:

Former WSVN reporter Marilyn Mitzel gets her age discrimination judgment reversed:

Sunbeam Television Corporation appeals from a final judgment awarding damages on a discrimination claim in favor of Marilyn A. Mitzel, a reporter whose contract Sunbeam opted to terminate. We conclude that the trial court erred when, years into the litigation, it permitted Mitzel to change the theory of her case from one of strictly age discrimination, as reflected in her charge to the FCHR and EEOC1 and in her complaint, to an unpled claim of age-plus-sex discrimination and allowed a trial to proceed on this unpled theory. For that reason, we reverse.

Hurry up and retry it -- no one is getting any younger around here.

Rolls Royce v. Garcia:

Kinney happens.