RES JUDICATA- A Double Edged Sword

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RES JUDICATA- A Double Edged Sword

What does this mean? This term is heard time and time again however I believe that few have an understanding of what is being said. In layman’s terms it literally means “a matter judged.” Res judicata is the principle that a matter may not, generally, be relitigated once it has been judged on the merits. If you have additional issues that were not brought forth prior to the case being adjudicated on the merits then you will be barred from bringing any additional issues. Holding your cards close and worrying that the opposing side will get an advantage if they see all of your cards will hurt you more than help you. This is called Claim preclusion.

If you are going to come forth and state that controversy exists between parties then in this writer’s opinion you should throw everything including the kitchen sink at the opposing side. You are not to hold back. You are setting up for your case to go to the Appellate court. At the appellate level you will articulate each and all of the arguments from the lower courts. You will not be allowed to bring forth any new information or arguments. Pursuant to res judicata you will only be allowed to argue adjudicated matters that have been ruled on from the lower court.

Issue preclusion, (Collateral Estoppel) is where once an issue of fact has been determined in a proceeding between two parties; the parties may not relitigate the same issue even using a different cause of action. i.e.: if one were to get an order from a state district court where a determination had been made that a document purporting to be an Assignment of Deed of Trust was ineligible to be recorded pursuant to statutory requirements of law. This order from the court would ask that the Assignment of Deed of Trust be declared a nullity and that the lien encumbering this property be removed as well as barring the named parties within the order from any future actions pertaining to title to the property. The parties named in the order would be unable to come forth with a future action pertaining to title as a determination has been made based on the merits of law that have been adjudicated. In setting up the issues pertaining to what is to be adjudicated and the parties that may or may not come play in your sandbox takes finesse and when done properly will leave you smiling.

Remember to use both hands when wielding the sword.

Respectfully, Joseph Esquivel                                                                                             Mortgage Compliance Investigators                                                                               Copyrighted© 2014

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