Via: Ohio Fraudclosure

A Simple question was before the OHIO SUPREME COURT JUSTICES:

To have STANDING, as a plaintiff, in a mortgage foreclosure action, must a party show that it owned the NOTE and the MORTGAGE when the complaint was filed?

[ipaper docId=65917165 access_key=key-25j0inxaj5zilae5vzl1 height=600 width=600 /]

Mr. Beckman, MERS CEO is quoted as saying “We did not have a robust process to make sure that all data on our system was accurate, timely and reliable.”

[ipaper docId=65856096 access_key=key-9lcwoqyrb134306yysp height=600 width=600 /]

Bloomberg-

Bank of America Corp. (BAC) and Wells Fargo & Co. had their long-term credit ratings downgraded by Moody’s Investors Service, citing a decreasing probability that the U.S. would support the lenders in an emergency. Citigroup Inc.’s short-term rating also was cut.

[Bloomberg]

Listen up carefully because this is what we’ve been waiting for. Only wished all shareholders were named but it’s all about strategy and taking one bite at a time!

I have posted about this doctrine HERE and HERE in hopes someone would pick up on this.

Abigail C. Field-

Dallas County has just filed this complaint seeking billions from Bank of America for the 285,000+ MERS documents recorded in the the Dallas County land records. Dallas calls MERS a fraud by design, and says MERS’s shareholders should be liable for MERS has done.

The complaint explains that in recorded mortgages and other documents, MERS claims to be a “beneficiary”, “mortgagee” and “grantee”, but that MERS is none of those things under the law of Texas for the past 100 years. As a result, the complaint says, all those documents are false. Texas law prohibits using a document with the “knowledge that the document is a fraudulent court record or fraudulent lien or claim against real…property or an interest in real…property”

[REALITY CHECK]

image: mooncostumes

Missing from this article is how homeowners are being fraudulently foreclosed upon and how this affects title to the homes.

Once again, homeowners continue to get shafted by those in office.

Just because you have money doesn’t mean you made it because you’re smart! See Video Below…

ST. Pete Times-

TALLAHASSEE — The push is on in Florida to cut the courts out of the foreclosure process.

Supporters of the concept — which is used in nearly 30 states — say it will speed foreclosures, get houses back onto the real estate market and boost the economy.

Opponents say it puts property owners at the mercy of banks.

Gov. Rick Scott, House Speaker Dean Cannon and Senate President Mike Haridopolos all say they are interested in considering legislation to change Florida laws so judges won’t have to referee foreclosures.

[ST. PETE TIMES]

Never-Before-Seen Rick Scott Deposition Video

Here is never-before-seen footage of Rick Scott during a deposition in an anti-trust lawsuit against his former company Columbia/HCA Health. Scott’s company was fined a record $1.7 billion on charges of Medicare fraud. Despite being a lawyer and being CEO of one of the nation’s largest hospital chains, Scott evades answers to even the most basic questions. If Scott won’t answer questions when under oath, how can we expect him to be honest with us?

DALLAS COUNTY, TEXAS,
PLAINTIFF,

vs.

MERSCORP, INC.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; STEWART TITLE
GUARANTY COMPANY; STEWART TITLE
COMPANY; BANK OF AMERICA, NATIONAL
ASSOCIATION; AND ASPIRE FINANCIAL, INC.
D/B/A TEXASLENDING.COM,
DEFENDANTS

EXCERPTS:

III.
AGENCY AND CORPORATE VEIL/ALTER-EGO
10. At all times material hereto, each Defendant was acting by and through its actual,
apparent, ostensible, or by estoppel agents and/or employees.

11. Plaintiff moves the Court pierce the MERSCORP and MERS corporate veils and
impose liability upon Defendants Stewart and BOA as shareholders in MERSCORP for the
activities of MERSCORP and MERS alleged herein. Recognizing the corporate existence of
MERSCORP and MERS separate from their shareholders, including Stewart and BOA, would
cause an inequitable result or injustice, or would be a cloak for fraud or illegality. MERSCORP
and MERS were undercapitalized in light of the nature and risk of their business. The corporate
fiction is being used to justify wrongs, as a means of perpetrating fraud, as a mere tool or
business conduit for others, as a means of evading existing legal obligations, to perpetrate
monopoly and unlawfully gain monopolistic control over the real property recording system in
the State of Texas, and to circumvent statutory obligations.

[…]

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Via: KCSG

(Salt Lake City, UT) – St. George attorney John Christian Barlow, representating homeowners who have lost their home to the Bank of America’s foreclosure machine ReconTrust, may have finally achieved a measure of victory in the battle of Utah homeowners against ReconTrust fraudulent foreclosures.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

BANK OF AMERICA, N.A., a foreign
corporation,
Plaintiff/Counterclaim
Defendant,

vs.

ERNIE J. FOWLKE,
Defendant/ Counter
claimant/Third Party
Claimant,

vs.

RECONTRUST COMPANY NA; BANK OF
AMERICA and BANK OF AMERICA,
Third Party and
Counterclaim
Defendants.

[ipaper docId=65684119 access_key=key-1k9zp9wket9h9bdwzk4q height=600 width=600 /]

Washington, DC – The SEC Inspector General has completed a six-month investigation into allegations of conflict of interest against SEC’s former general counsel, David Becker, concerning his role in the Commission’s work relating to the victims of the Bernie Madoff Ponzi scheme.  The IG’s final report was issued publicly today.  Ranking Member Elijah E. Cummings issued the following statement:

“In its report, the IG’s office found sufficient evidence of Mr. Becker’s conflict of interest to call into question the integrity of the process used by the Commission to decide how to value fictitious profits made under the Madoff scheme.  The IG also found that procedures at the SEC ethics office broke down and failed to prevent a conflict of interest from potentially tainting the agency’s work.

“I believe the victims of the Madoff scheme deserve to know that the SEC’s decision in this case was not tainted by conflicts of interest.  The IG recommended that the Commission take a second look and conduct a revote of its decision.  I strongly urge the Commission to take these appropriate steps in order to give Madoff’s victims that peace of mind.

“I hope that the Commission will adopt the IG’s other recommendations as well.  I am encouraged that Chairman Schapiro asked SEC Inspector General H. David Kotz to open this investigation, which was a good faith effort on her part to get to get to the bottom of this issue.  I am also encouraged that Chairman Schapiro decided last year to revamp the office of ethics, to hire new ethics counsel for the agency, and to provide greater resources to that office.”

###

Source: http://democrats.oversight.house.gov/

They saw this coming and they’ve been warned. If a foreclosure moratorium isn’t in the horizon, prepare to see home values sink to all time lows.

The TOO Big TOO Fail… will FAIL all on their own.

HW–

Roughly 10.4 million mortgages, or one in five outstanding home loans in the U.S., will likely default if Congress refuses to implement new policy changes to prevent and sell more foreclosures, according to analyst Laurie Goodman from Amherst Securities Group.

At the end of the second quarter, more than 2.7 million long-delinquent loans, others in foreclosure and REO properties sat in the shadow inventory, more than double what it was in the first quarter of 2010 (Click to expand the chart below). With the market averaging roughly 90,000 loan liquidations per month, it would take 32 months, nearly three years, to move through the overhang.

And that number is contingent on no other loans going into default.

[HOUSING WIRE]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BILL R. LEEP and
JACQUELINE WATTS LEEP, Plaintiffs.

v.

THE BANK OF NEW YORK MELLON
and RECONTRUST COMPANY, N.A., Defendants.

EXCERPT:

Because of the alleged imminent foreclosure sale, and because the presence of MERS demonstrates a high probability that defendants did not comply with the recording requirements of the Oregon Trust Deed Act, I grant plaintiff’s request for a temporary restraing order (#3).

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DeMarco said Fannie Mae will not service the loans itself, instead transferring the loans to an undisclosed third party.

Kansas City-

Bank of America Corp.’s sale of mortgage servicing rights to Fannie Mae, a transaction that spurred a congressional inquiry last week, “made sense for both companies,” the regulator of the government-controlled mortgage giant told reporters Monday.

“We are certainly concerned about ensuring that these higher-risk mortgages are adequately and appropriately serviced, and this was an arrangement that helped to realize that goal,” Edward DeMarco, acting director of the Federal Housing Finance Agency, said after remarks at a mortgage conference sponsored by the N.C. Bankers Association.

Vegas Inc

Call it Nevada’s version of David versus Goliath.

As foreclosures continue and homeowners cry foul against lenders in their bids to stay in their homes, Nevada’s Attorney General Catherine Cortez Masto is taking on Bank of America in federal court. And the issue is going to heat up as Cortez Masto’s office investigates BofA and other parties in the foreclosure process. She says criminal charges are likely coming to the industry soon, which could provide more ammunition for her foreclosure fraud case.

[VEGAS INC]

Like everything else….umm… oh yea! Those things called modifications. This ain’t gonna happen either!

WSJ-

It probably won’t include “1-800-ROBO,” but big banks are preparing to launch a toll-free number to find consumers harmed by problems in foreclosure processing.

The effort to find consumers is an outgrowth of the controversy over so-called robo-signing and other problematic foreclosure practices. Last spring, regulators ordered major banks and thrifts to overhaul their foreclosure practices, finding that 14 lenders filed foreclosures with improper documentation and lacked sufficient staff to properly handle distressed borrowers. The banks have now picked independent consultants to identify any borrowers who were harmed by foreclosure-processing problems.

[WALL STREET JOURNAL]

[Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

CITIMORTGAGE, INC.
Plaintiff-Appellee

-vs-

DONALD SCOTT ROBSON, ET AL
Defendant-Appellant

Excerpts:

{¶4} The case began as a mortgage foreclosure case, and appellant
counterclaimed for trespass and damage to his personal property. The court found the
mortgaged house was unoccupied so appellee hired a contractor to enter and secure
the house and change the locks. Appellant alleged the contractor damaged an alarm
system in the house. The property has since been sold in a foreclosure sale.

[…]

{¶11} Nonetheless, the trial court addressed the issue of trespass. We find the
trial court should not have proceeded to determine the mortgage permitted appellee to
enter appellant’s property. This was beyond the scope of the motion for summary
judgment.

{¶12} The court also erred in finding appellant could not prevail because he had
not established damages. A property owner must prove two essential elements to state
a cause of action sounding in trespass: (1) an unauthorized intentional act, (2) resulting
in an intrusion that interferes with the owner’s right of exclusive possession of the
property. Merino v. The Salem Hunting Club, Columbiana App. No. 07CO16, 2008-
Ohio-6366, paragraph 41, citations deleted. If a property owner proves the elements of
trespass, he has a right to nominal damages without proof of actual damages. Id. at
paragraph 42, citations deleted.

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Abigail C. Field

The LATimes reported that Brian Moynihan wouldn’t rule out bankruptcy for Bank of America. Chris Whalen urged the bank to go bankrupt. Now rumors are swirling that BofA will try to dodge all Countrywide’s lawsuit liability by putting Countrywide into bankruptcy, saving BofA in the process.

Whether BofA succeeds in ducking Countrywide’s liabilities depends mostly on one question: will the bankruptcy court apply Delaware law, which prizes form over substance, or law like New York or California’s, which looks at substance over form? That choice of law factor is what got BofA off the hook of Countrywide liability in one case, and left it on the hook in another, as detailed by Isaac Gradman at the Subprime Shakeout.  And if you think about it, the idea is incredibly galling.

[REALITY CHECK]

For some these are documents and for others it represents families.

WSJ-

GMAC Mortgage LLC, the mortgage servicer that vaulted “robo-signing” into the headlines, says it has overhauled its foreclosure procedures.

The unit of Ally Financial Inc. has put each employee who works on foreclosures through an additional 40 hours of training, testing them on what they learned. Outside law firms that handle foreclosures for GMAC must answer questions about their own practices and are subject to on-site reviews.

The changes came after GMAC employee Jeffrey Stephan said in a deposition last year that he had signed off on as many as 10,000 foreclosure documents without proper review.

[WALL STREET JOURNAL]

It’s still inconceivable that not one attorney has been reprimanded, no suspensions after so much fraud. How long do investigations take? How long will this go on? After millions of hits on this blog…you would imagine it stop, a long time ago. But no...

WSJ-

After the robo-signing mess exploded last September, court officials in Florida, the nation’s busiest state for foreclosures, required lenders to swear that all the information in their foreclosure lawsuits was “true and correct.”

The new affidavits have made judges quicker to pounce on obvious flaws in foreclosure documents, such as when the loan amount doesn’t match the number included in the lawsuit. But some judges say the foreclosure process suffers from broader problems beyond their control.

[WALL STREET JOURNAL]

Occupy Wall Street: Protests Continued Below…for live stream

Many, Many thanks to Brent Hunsberger & Oregon Live for putting this out there. Lets not forget how many disabled and seniors are out there alone in the same situation.

Please watch the video.

Oregon Live-

Robert Galanida was a skinny teenager when a drunken driver rammed the pickup he was riding in, hurtling him to the blacktop and paralyzing him from his shoulders down.

With the help of multimillion-dollar legal and insurance settlements, he and his mother now live comfortably on annuity payments of $22,000 a month.

[OREGON LIVE]

H/T Matt Stoller

Sorry, there is absolutely nothing wrong with what one does with their personal life. This is clearly a smear campaign.

Besides, shouldn’t this be considered learning how to be a tough crusader and use em’ handcuffs! At least she’s not a FRAUD and DESTROYED MILLIONS OF LIVES.

Message to Ms. Smith:

Keep your head up and hold it proudly… I say.

NYPOST-

A well-respected lawyer in the state Attorney General’s Office spends her days toiling in securities fraud — and her nights moonlighting as a dominatrix, The Post has learned.

Alisha Smith, 36, who dresses demurely as a buttoned-down prosecutor, turns up the heat when she becomes perky persecutor “Alisha Spark,” a nom de dom she uses when she performs at S&M events for pay, according to a fetish source.

[NEW YORK POST]

{image: Litpark.com}

NAILTA–

In 2005, Countrywide Home Loans, Inc. obtained a first mortgage against real estate owned by Rita and Kenneth Cloud. Sometime thereafter, the Clouds went into default and the mortgage was foreclosed. On August 28, 2006, Countrywide filed a foreclosure action against the Clouds. At a Sheriff’s Sale on February 22, 2007, Countrywide bid its judgment and took title to the real estate by Sheriff’s Deed. The Deed was recorded on March 15, 2007.

However, prior to the first mortgage and subsequent foreclosure judgment, the Clouds executed an unsecured promissory note to Citizens Bank of New Castle in January of 2003. The Clouds went into default on that note, as well. A complaint was filed against the Clouds to obtain a judgment on the unsecured note. On June 9, 2006, the Steuben County Court entered a default judgment against the Clouds in favor of Citizens Bank.

At the time Countrywide filed its foreclosure action in August of 2006, the Citizens Bank judgment lien was of record, but missed and Citizens Bank was not named as a defendant in the Countrywide foreclosure action.

On April 19, 2007, Countrywide conveyed title to the subject property to Fannie Mae by limited warranty deed.

[NAILTA]

[ipaper docId=65193185 access_key=key-250vg2towm9adue4ls60 height=600 width=600 /]

MAINE SUPREME JUDICIAL COURT

HSBC BANK USA, N.A., AS TRUSTEE UNDER THE POOLING AND
SERVICING AGREEMENT DATED AS OF DECEMBER 1, 2005, FREMONT
HOME LOAN TRUST 2005-E

v.

JANELLE GABAY

EXCERPT:

[¶1] Janelle Gabay appeals from a summary judgment entered in the District
Court (Bridgton, Powers, J.) in favor of HSBC Bank USA, N.A., as Trustee under
the Pooling and Servicing Agreement dated as of December 1, 2005, Fremont
Home Loan Trust 2005-E, on HSBC’s complaint for foreclosure and sale pursuant
to 14 M.R.S. §§ 6321-6325 (2010).1 Gabay argues that HSBC’s motion for
summary judgment should have been denied because HSBC’s statement of
material facts left unresolved genuine issues of material fact as to (1) whether
HSBC is the owner and holder, pursuant to a valid endorsement, of the promissory
note due to HSBC’s failure to present adequate evidence of such; (2) the order of
priority among creditors; (3) the sufficiency of identification of the court costs that
HSBC sought to collect; and (4) the identification of the premises to be foreclosed
upon. Because genuine issues of material fact exist, we vacate the judgment and
remand for further proceedings.

[…]

II. LEGAL ANALYSIS

[¶8] We review a grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party to determine “whether
the parties’ statements of material facts and the referenced record evidence reveal a
genuine issue of material fact.” JPMorgan Chase Bank v. Harp, 2011 ME 5, ¶ 15,
10 A.3d 718. In so doing, we consider only the material facts set forth, and the
portions of the record referred to, in the statements of material facts. Salem
Capital Grp., LLC v. Litchfield, 2010 ME 49, ¶ 4, 997 A.2d 720. In summary
judgment practice, the court “is neither required nor permitted to independently
search a record to find support for facts offered by a party.” Levine v. R.B.K. Caly
Corp., 2001 ME 77, ¶ 9, 770 A.2d 653. A party’s motion for summary judgment
may not be granted if that party fails to properly put the material facts before the
court, “regardless of the adequacy, or inadequacy, of the nonmoving party’s
response.” Id. ¶ 5.

[¶9] HSBC contends that it need not properly identify which paragraph of a
supporting record reference is the basis for a particular statement of material fact
when (i) the supporting record is included in its entirety in the summary judgment
record, or (ii) the critical paragraph in the record has been cited to support a
different material fact. However, our rules require that each statement of material
fact must directly refer the court to “the specific portions of the record from which
each fact is drawn.” Id. ¶ 9; M.R. Civ. P. 56(h)(1), (4). We have repeatedly noted
the importance of applying the summary judgment rules strictly in the context of
mortgage foreclosures. See HSBC Mortg. Servs., Inc. v. Murphy, 2011 ME 59, ¶ 9,
19 A.3d 815; JPMorgan Chase Bank, 2011 ME 5, ¶ 15, 10 A.3d 718.

[¶10] “In residential mortgage foreclosure actions, certain minimum facts
must be included in a mortgage holder’s statement of material facts on summary
judgment.” HSBC Mortg. Servs., 2011 ME 59, ¶ 9, 19 A.3d 815; see also M.R.
Civ. P. 56(j). To support a summary judgment motion in a residential mortgage
foreclosure action, the mortgage holder must include, at a minimum, the following
facts in its statement of material facts, each supported by evidence of a quality that
could be admissible at trial:

(1) The existence of the mortgage, including the book and page
number of the mortgage, and an adequate description of the
mortgaged premises, including the street address, if any;

(2) Properly presented proof of ownership of the mortgage note and
the mortgage, including all assignments and endorsements of the note
and the mortgage;

(3) A breach of condition in the mortgage;

(4) The amount due on the mortgage note, including any reasonable
attorney fees and court costs;

(5) The order of priority and any amounts that may be due to other
parties in interest, including any public utility easements;

(6) Evidence of properly served notice of default and mortgagor’s
right to cure in compliance with statutory requirements;

(7) After January 1, 2010, proof of completed mediation (or waiver or
default of mediation), when required, pursuant to the statewide
foreclosure mediation program rules; and

(8) If the homeowner has not appeared in the proceeding, a statement,
with a supporting affidavit, of whether or not the defendant is in
military service in accordance with the Servicemembers Civil Relief
Act.

HSBC Mortg. Servs., 2011 ME 59, ¶ 9 n.6, 19 A.3d 815; Chase Home Fin. LLC v.
Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508; see also M.R. Civ. P. 56(j) (providing,
among other things, that a summary judgment may not be entered in a foreclosure
action unless it is determined that “the plaintiff has properly certified proof of
ownership of the mortgage note and produced evidence of the mortgage note, the
mortgage, and all assignments and endorsements of the mortgage note and the
mortgage”).

[¶11] Our analysis focuses on the first, second, fourth, and fifth
requirements listed above. We begin our discussion with the second requirement.
A. Ownership and Endorsement of the Note

[¶12] As noted above, HSBC is required to include the following
properly-supported facts in its statement of material facts: “properly presented
proof of ownership of the mortgage note . . . , including all assignments and
endorsements of the note . . . .” HSBC Mortg. Servs., 2011 ME 59, ¶ 9 n.6, 19
A.3d 815; Chase Home Fin., 2009 ME 136, ¶ 11, 985 A.2d 508.

[¶13] In its statement of material facts, HSBC asserts that it is the “current
holder of the Note,” citing to paragraph seven of its complaint and to paragraph
four of the Lender affidavit. There are multiple deficiencies in this statement of
material fact as it concerns proof of ownership of the note.

[¶14] First, neither of the citations included to support the bare factual
statement that HSBC is the current holder of the note properly supports that factual
statement. The cited paragraph of the Lender’s affidavit refers only to HSBC’s
being the current holder of the mortgage. The cited paragraph of the complaint
asserts that “[HSBC] is the current holder of the Note and Mortgage by virtue of an
assignment dated on or about December 22, 2008.” However, the assignment
expressly referred to in that averment, which assignment was not attached to the
complaint but which is included in the summary judgment record, did not assign
the note to HSBC. The December 22, 2008, assignment, entitled “ASSIGNMENT
OF MORTGAGE,” assigned MERS’s interest in the mortgage, but not the note, to
HSBC.8

[¶15] While an averment in a complaint that a defendant has failed to deny
is generally deemed admitted, see M.R. Civ. P. 8(d), the statement in HSBC’s
complaint that it is the current holder of the note pursuant to the December 22,
2008, assignment is not sufficiently supported in the context of a residential
mortgage foreclosure proceeding. When, as here, the mortgage-holder must
strictly comply with the requirements of 14 M.R.S. §§ 6321-6325 and M.R. Civ. P.
56(j), the paragraph of HSBC’s complaint cited in support of HSBC’s statement of
material facts providing that it is the current holder of the note does not properly
support that fact.

[¶16] An additional deficiency in HSBC’s statement of material facts is that
HSBC failed to include any facts relating to “properly presented proof of . . . all
assignments and endorsements of the note.” Chase Home Fin., 2009 ME 136,
¶ 11, 985 A.2d 508. HSBC was required to provide such proof, as it is undisputed
that the note was originally executed and delivered to Fremont Investment. HSBC
suggests in its brief, but does not specify in its statement of material facts, that the
summary judgment record contains evidence of a valid endorsement of the note to
HSBC including (1) paragraph two of the Lender’s affidavit, which states that
HSBC holds the note pursuant to a special endorsement, and (2) a copy of the
purported endorsement itself, included in the record as a separate page
accompanying, but not discernably affixed to, a photocopy of the note. Because
the statement of material facts contains no fact concerning properly presented
proof as to any endorsement of the note, however, much less a statement supported
by proper record references, we will not independently search the record to find
such evidence, see id. ¶ 12 n.4; Levine, 2001 ME 77, ¶ 9, 770 A.2d 653, and HSBC
would not be entitled to judgment as a matter of law.

[¶17] Our statement that we will not, and trial courts should not,
independently search a record to find evidence to support a party’s claim when that
claim is insufficiently referenced in that party’s statement of material facts is no
mere technicality to make summary judgment practice more difficult. Certainly in
each individual case it can be argued, as HSBC argues here, that review of the
entire record, with the specific facts now identified in the brief on appeal,
demonstrates that there really is no material fact in dispute. Such arguments
illustrate the need to identify material facts with specific citations to the record in
the statement of material facts filed in the trial court. If an essential fact can be
stated, with a proper record reference, in a brief on appeal, that fact could have and
should have been stated, with a proper record reference, in the statement of
material facts filed in the trial court. Before easy identification by brief on appeal,
the information to make an inadequate statement of material facts complete may
have been locatable only by a search of a record of fifty, one hundred, or more
pages. Placing every material fact in the statement of material facts, with a proper
record citation, as the rules require, avoids the necessity for such a time-consuming
search. Trial courts, who may have to consider multiple motions for summary judgment
at a time, could be considerably burdened searching for facts through
hundreds of pages of records, if the rules requiring complete, properly supported
statements of material facts are not enforced on appeal.

[¶18] Because HSBC’s statement of material facts fails to properly present
proof of ownership of the mortgage note, including all assignments and
endorsements of the note, genuine issues of material fact regarding HSBC’s
ownership of the note exist, precluding entry of judgment as a matter of law.

[…]

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