Wamu WKN 893906 News !

El Juez (aka Vivian on Yahoo) writes: (Reposted with permission)
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I have to admit this WMI objection to the appeal is pretty compelling on procedural grounds, although not substantively. As I think I remember saying before in a previous post (or was it a pm to someone, or did I just think it?), the procedural restriction of only being able to appeal from "final judgments" (as opposed to "interlocutory orders") was always a big hurdle for the EC to get over. That's why I was hoping Judge W would do the honorable thing and "certify" the question to the Third Circuit (which she never did, yet) rather than force the EC to basically apply directly to the Third Circuit to make an exception to the rule.

I still think that (1) Judge W ruled incorrectly when she found the GSA "fair and reasonable" despite the debtors having failed to meet their burden of proof by a preponderance of competent, persuasive and admissible evidence, and that (2) the underlying issues on the appeal are significant, important and novel, (3) there is no clear, controlling appellate law on the subject, (4) it would be in the interests of judicial economy for the appellate court to hear the matter immediately in order to give the parties (and Judge W) guidance, and that (5) the possibility of "equitable mootness" by a delay in the appeal until after "finality" further justifies immediate appellate review. Nevertheless, procedural inertia made impede the EC's efforts to these ends.

Even if this move by the EC fails in the short run, it is still a logical part of an overall strategy to keep up the pressure, and should help impel the parties to negotiate and Judge W to mediate.

GLTAL

P.S. As to your highlighted question**, yes, that is what judges do, BUT they can only do so based on competent, credible, admissible evidence presented by the litigants. In our case, Judge W made her decision based on (1) the mere opinions of witnesses (such as the still-wet-behind-the-ears Smith) who were not even "expert witnesses" and additionally could not and did not even state objective facts upon which their opinions were based, and (2) her own legal opinions. Such unsubstantiated opinions as in (1) are, in my opinion, incompetent and incredible evidence, and therefore cannot support a finding that the debtor's burden of proof was met. To avoid that inevitable conclusion Judge W, in effect, made herself a witness! That, in my opinion, a judge cannot do! Although in all jurisdictions a judge may take "judicial notice" (a substitute for evidence established by witnesses) of simple matters "not reasonably subject to dispute" (e.g., that there are 12 inches in a foot, or that the sun rises the east, or that I5 runs generally in a north-south direction through three states between Canada and Mexico), it is fundamental that a judge cannot be a witness in the case he/she is trying. So, for her to substitute her off-the-cuff opinion for real evidence, subject to cross-examination and rebuttal, should not be permitted, at least, if were on the Supreme Court. ;D ;D ;D

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** The question being referred to was basically, "Isn't it a Judge's role to rule on facts though?"


The above are the words of El Juez (Vivian), a sitting US judge.

...Catz

http://www.aktienbase.de/...e-rund-um-washington-mutual/index396.html