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I am wondering if this is too narrow. The basic assumption that turns into a presumption that turns into a judgment is that the loan was made by the originator. In most cases that isn’t so. Hence the note is defective and so is the mortgage. I also think that this is less an issue of simple due process than an issue of equal protection — debtors in the class of foreclosure victims are treated differently than debtors of similar situations.
There is at least some due process in all these cases and the argument could be made that the state isn’t doing enough to provide more — but the whole strength of that argument depends upon an allegation and proof that homeowners as a class get less due process than any other class of debtors. As a result, presumptions that are rebuttable are treated as virtually unrebuttable leading to a final judgment based upon presumptions that are contrary to the facts. Note that the forecloser is taking the position that it is a holder for purposes of suing on the NOTE, and trying to piggy back that onto the foreclosing the mortgage.
My take on this is that the courts are treating the foreclosers as they would if they alleged and proved that they are holders in due course. But that would require proof of payment, acting in good faith without knowledge of the borrower’s defenses. The PSA requires the elements of a HDC.
It is only in foreclosure cases where the court tacitly converts the allegation of “holder” on the note to a foreclosure of the mortgage as if the creditor was present, when in fact the creditor in most cases doesn’t even have notice that they are about to have the tax status of their REMIC destroyed and they are about to have a losing loan pushed into their pool by an unsuspecting judge who does not realize that his Final Judgment is forcing a loss on the investor and the borrower that neither one consented to.
THAT is why I think this is more about equal protection than a simple case of due process. Embedded in the question to the Hawaii Supreme Court is the assumption that the note is even relevant. If the note, as we were all taught in law school, is EVIDENCE OF THE DEBT AND NOT THE DEBT ITSELF, then the refusal of the courts to provide homeowners with ample opportunity in motions, discovery and at trial is all wrong. All facts point to the conclusion that no money exchanged hands in connection with any of the existing documentation starting with the note and mortgage.
The homeowner was in fact given money directly from investor funds. The Trust was not used as a conduit, which is why there is a complete absence of allegations by the banks that they are holding these loans as holders in due course which would bar almost all of the borrower’s defenses. Instead, they allege they are “holders” knowing that Judges are probably going to use that allegation as a wall against the borrower’s defenses. So the banks get treated as HDC status even though they never alleged it. The banks can claim they did nothing wrong and blame the courts when the truth comes out. I wonder how that will play in the court of public opinion?
In all other cases that would not be true. But in foreclosure cases they give 3 minutes per case and rule on things without thought.
Filed under: foreclosure |
I like that Judge! Scratch! 🙂
I love the plates you had Deb. Just standard on ours but Hubby added Eagle plate covers. SYM Fire Engine Red with Metalic Silver n matching Helments equiped with Blue Tooth so we can talk. I haven’t been on a bike in 30yrs. After I faced my fear, I over came the flashbacks of going down. Hubby loves to ride, I did it so we could do it together again. So Glad I Did. I’m taking a driving course @ University. Can’t be to Safe. .
As for judges. There so Te. Few good men left but ck this judge a Spinner. I’m clapping my hands
http://stopforeclosurefraud.com/2014/08/13/lasalle-bank-n-a-v-dono-nysc-judge-spinner-rips-into-lasalle-bad-faith-plaintiff-and-any-assignee-is-forever-barred-prohibited-and-foreclosed-from-recovering-the-same-from-defendant/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ForeclosureFraudByDinsfla+%28FORECLOSURE+FRAUD+%7C+by+DinSFLA%29
Like I said this is not only in foreclosures. Look at what is happening in Ferguson, Mo in Los Angeles etc…. Foreclosures are just the tip of the iceberg. We live in a Fascist or Totalitarian Country take you pick.
NEVER AGAIN.
Lol cookie
My Harley plate was ” hers2″
I sold her though she was a beauty ! Life’s a trip I have to agree
Its not the States job to file a lawsuit for damages that these. Buttwipes have caused you. Its called a Private Right of Action And because the State Can Not Deprive You of Your Rights those Claims were Excluded from AG settlements. Fight Fire With Fire. Enforce the Contract. Contract Law 101. Pisses Me Off! Fraud on the Face and in the Inducement. Misrepresentation, unjust enrichment. Fear no longer controls me. 30yrs later We Ride Again! New His and Hers, my 1st time on interstate today. I made it up to 65mph and didn’t peee myself. It was one he’ll of a ride. Rode into the Sunset Together tonight. Its Our Time Now! Many Blessings To All
Due Process does not count in every state, and MA is a perfect example.I am a Blue Star mom and our lives have been destroyed. I have not giving up and I have proof of FRAUD and UNEnthical Judgement from a CORRUPT JUDGE.
The problem is that the states have very little in the way of incentive to do anything about these types of injustices.Its actually better for them not to,they get to get the transfer tax’s when the homes are sold,then they get to re asses these homes and get more money its a comical and sad state of affairs and only lots of noise will change it.
I don’t see one lawyer not one single lawyer even the ones that claims as Neil to know what the banks have done; if this were have way true then they as lawyers would start with the most important part of the transaction which is a consumer sale and purcahse agreement we are finding here in Texas and other states that the builder who entered into these contract do no even own any land merely a leasehold interest (improvements built on land owned by somone else) addtionally these same buildings use rolling options (the right to purchase in the futre) to purchase land abscence a consumer sale and purchase contract what the hell are the funding certainly not a consumer purchase price without a sale; when you find a lawyer that really awake not one who keeps challenging the mortgage loan just because the banks saids it exist then you have found the right one; their are not consume loans because their exist no present executed sales and purchase agreements.
And yes like Hamas Hizbollah ISIS the banksters target Women Children and the elderly.
NEVER AGAIN
Show me the Note defense is all about due process and saving taxpayer dollars.
http://www.dailykos.com/story/2011/02/23/948986/–Show-Me-The-Note-Foreclosure-Defense-Works#
So yes Neil this is a very very simple case for the Property Owner if due process was applied in American courts Basically the American courts are alot like ISIS and Hamas. Due Process does not apply and if you raise any objections you get sent to jail (Contempt of court etc…).
NEVER AGAIN
I will be watching this one closely. If they rule in the homeowners’ favor, that will be a nice precedent.