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STEVE D. MCGOWAN, TERESA L. MCGOWAN, Plaintiffs - Appellants, THE MCGOWAN COMPANY, LLC, Plaintiff, versus HOMEWARD RESIDENTIAL, INC., f.k.a. American Home Mortgage Servicing, Inc., FEDERAL NATIONAL MORTGAGE ASSOCIATION, a.k.a. Fannie Mae, Defendants - Appellees.

No. 12-10426

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIR-CUIT

2012 U.S. App. LEXIS 25227

December 11, 2012, Decided

December 11, 2012, Filed

The case is an example of the situation when the contract that is protected by law of the state and the federal law is not functioning as a legal protection tool for both parties. From the side of McGowans, it is hard to say that their mortgage has been correctly settled. The payments made during the period of foreclosure and prior to the foreclosure, which followed the request from the family to reduce monthly payments, have not been properly tracked and, therefore, cannot be claimed. The attempts by the family to address the issue with them having done all the monthly payments have been rejected.

At the same time, from the side of Homeward Residential, Inc., which was the company who provided the mortgage to the family, the company did not have a purposeful explanation to their foreclosure procedure with McGowans and their rent payments. The rejection of these claims means that the law in this case does not protect those provisions in the contract that guarantee the safety of payment and the fulfillment of promissory estoppel.

There are a couple of major points that should be made within the case. First of all, the contract that has been already signed was still not terminated and, despite the fact that the foreclosure request was made by McGowans, the legal point is that the actual contract has not been terminated. Therefore, the monthly payments in full size have still been taking place. At the same time, after the request by McGowans, Homeward promised that they would “forbear from continuing with foreclosure proceedings”. At this time, as mentioned in the case, there was no actual subject to foreclosure at that moment of time. Therefore, such form of agreement could have been rejected by McGowans in order to avoid further misunderstanding and misinterpretation of information.

For this reason, the company has already been insuring itself from any further legal claims. While stating that they had not been taking any forbearing from McGowans, they already knew that legally the contract law is protecting them. Finally, the result was that McGowans have been forced to sell their properties with loss.

The case clearly describes what the legal contract is capable of. The situation when the company and the client make the contract in order to protect and legally draw the borders of each other’s actions is a typical in terms of promissory estoppel. However, in this case the company does not play an honest game with their clients. It can also be claimed that Homeward did not receive permission for advertising the McGowan’s properties, but all these claims are not going to bring any result.

In this case, the situation is quite clear. The contract that has been made in the very beginning of cooperation between the parties should have been different. The major problem which McGowans faced in the end was that their claims have not been sufficient in terms of pleadings and, therefore, they could not present any plausible claim.

McGowans had to ensure that the foreclosure is made correctly and that the parties are informed, so that Homeward would not state there had been no plans for forbearing when the payments are already processed. Secondly, promissory estoppel should have been formed correctly, i.e. a foreclosure action should have been commenced but not yet finalized. Moreover, McGowans had to keep the records of their change of financial position to prove that they suffered a loss due to the improper actions of the company. The law clearly states that McGowans had to prove that they had suffered from special damages in order to make their claims legal and plausible.

Therefore, in this case, the injury that is presented as a damage being the result of the actions of Homeward is not a legal consideration for addressing the claim made by McGowans. Financial loss, especially in substantial amount, and with proof that this happened due to their property loss and short sale should have been presented as evidence in this case. This would make the second and the third claim possible to address.

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