Livinglies's Weblog

It’s easy to get lost in the weeds. Lots of people bring up the issue of standing without realizing that they are invoking constitutional rights and required processes. But beyond that they are invoking common sense, to wit: simply stated, no person should be deprived of their property without due process of law by a person who has the right to do so.

While it seems that nobody is arguing with that simple proposition, the banks are dead set against it. They seek to take property from a homeowner and sell it for the purpose of obtaining revenue — not to pay down any debt. They do so without one penny of value invested in the debt and they are successful because they have convinced most judges that foreclosure is proper even if the creditor is unknown.

Since the proceeds of foreclosure are received as revenue, the question is why should anyone receive that revenue under the disguise of collecting a debt?

Foreclosure is the civil equivalent of capital punishment recognized for centuries as a drastic draconian remedy. Why would you let that happen simply because someone wants to make more money than they already did off of a transaction in which the homeowner received no disclosure of the true nature of the deal?

And why is the quest for revenue an acceptable substitute for debt repayment? The law says it isn’t. That should end the argument; but for millions of homeowners, the intentional ignorance of the courts as to ownership of the debt has ended their right to own and possess the largest investment of their lives together with their lifestyle and reputation. It wasn’t always so.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

The 2008 crisis was caused and created by a very long-running plan of political influence in which the financial tools of mass destruction were deregulated and the legal tools to institutionalize fraud were passed starting with local, state and even federal laws, rules and regulations.

One such example is the law in some jurisdictions that says that if you don’t raise jurisdiction (standing) as an issue you have waived it.

Such laws unconstitutionally allow a court to confer jurisdiction upon itself when there is none. In a nutshell there is no doctrine, law or Supreme Court decision that agrees, but legislators, under the heavy influence of bank money, have nonetheless passed bills that have no justification in law, in fact, in public policy or even debate.

Now some jurisdictions are seeking to protect homeowners from further legal atrocities like a foreclosure conducted by a party who conducts a void foreclosure and pockets the money as revenue because no debt was owed to them.

The new bills, hotly contested by the banks, merely removes a power that never existed in the first place. Standing, subject matter jurisdiction and due process are not requirements and processes that can be waived. They are required for an orderly society and in ours, the US Constitution is quite clear that we are all subject to its laws.

Standing is a jurisdictional issue. The new bills merely correct a legislative error.

If a court lacks subject matter jurisdiction, then it has only one limited power — to dismiss the case for lack of jurisdiction. Lack of subject matter jurisdiction is not a technical issue.

If the party claiming a right to pursue the foreclosure in fact is not the proper party then there is no assertion, much less assurance, that the foreclosure will result in actually paying down the debt.

When the property is supposedly sold without jurisdiction the sale is void, thus clouding title forever.

When the proceeds received from the void sale are used to pay parties who receive it as revenue instead of debt payment then the debt remains (and the liability to pay it) or the debt was not as claimed from the beginning.

UCC Article 9 §203 has a special provision to prevent just this sort of problem: the would-be enforcer must have paid value for the debt, not merely possess the note. That provision is adopted as state law in all jurisdictions.

The concept of waiver of jurisdiction is a legal fiction devised by the banks. No party has the right to “waive” the constitutional requirement of subject matter jurisdiction. No court may hear issues or cases just because the parties want an advisory or binding decision if the court lacks the power to hear it. That power comes from the US Constitution which cannot be changed except by amendment to the constitution.

If the party seeking foreclosure has no legal right to do so, they should not be allowed to do so anyway. If the court has no power to consider or hear an issue or claim, then it should not be permitted to do so anyway. The banks  have succeeded in both ignoring the law and institutionalizing those changes as though that made it right. They didn’t amend the U.S. Constitution, thankfully, so it remains wrong.

Filed under: foreclosure |