Livinglies's Weblog

I understand that there has been some confusion about this bill, and what it would or would not do.  I hope to dispel those here.  First, it is not perfect, but it provides higher standards than currently exist.

It will not overrule the Arizona Supreme Court–it complements the rulings that protect homeowners, scanty though they are.  A deed of trust is always construed strictly in favor of the borrower.  A sale that doesn’t comply with the notice provisions as specified is void.  The summary statement is not a replacement for valid evidence of transfer.  Rather, it requires the foreclosing party to record (subject to liability for ARS 33-420 for making false recordings; there is a mirror criminal felony provision for knowingly making false statements in the recorder’s office) a document pointing to the assignments and valid transfers that should have already taken place.  The statement pfovides additional evidence to  prove to the court that (1) there aren’t any valid transfers; or (2) they will concoct false transfers which will be impeachable.  Nothing in the statute provides that the remedies listed are exclusive.  The remedies of available attorney’s fees and voiding the sale are in addition to any other remedies at law or equity.

Having represented multiple Arizona homeowners, I have seen how the federal district courts are  misconstruing state property law in favor of the banks.  Adding additional requirements and homeowner remedies for non-judicial foreclosure is a direct admonition that legislative intent is to protect the borrower from unlawful foreclosure.  The bill also directly focuses on the issue of property rights and valid transfers (like Ibanez), and does not allow them to discount all of the transfers of the note/deed of trust that occurred separately, at temporally unreconcilable times, or did not occur at all. Arizona courts have not been holding sales void per the Supreme Court precedent.  State courts have not been uniform or consistent at all.  These are the realities we face in Arizona.  The law can be on your side, but the judge must be convinced.

Hopefullly homeowners can all band together and get this passed, even if it is not perfect, it is a step in the right direction, and much better than the status quo.  If homeowners splinter as a group, they will weaken their stance and be overpowered by the powerful bank lobby opposing the bill.