Livinglies's Weblog

JOIN US IN STARTING A MOVEMENT!!

CHANGE THE RULES AND FORMS

A rule change would require the named Plaintiff/Claimant, and its attorney to certify due diligence and factual accuracy including an assertion that is not currently required: that the named Plaintiff is suffering financial loss as a result of the homeowner not making a scheduled payment. Without that simple premise being 100% satisfied, there is no assurance that a homeowner won’t be losing their house to satisfy a profit motive (which is NOT allowed by law) rather than to satisfy a debt owed to the party who initiated the foreclosure (which is the ONLY thing allowed by law). 

Parties who are creditors are allowed to preserve profit through enforcement. They’re not allowed to create profit through enforcement. 

The reason banks and their lawyers would oppose such a change is that they can’t satsify such a requirement without lying. Failure to make the change in the rules will produce another “court run” with a tidal wave of foreclosures on a new “rocket docket” powered by faulty assumptions, lies and erroneous presumptions used to satisfy greed rather than debt.  

Many of you are aware that I am involved with APON (American Property Owners Network) in Project Rule Change involving a Petition for changes in the rules, procedures, and preapproved forms currently utilized in foreclosure. Most people don’t even know such forms exist. But the current one used as a “guide” in Florida, for example, allows a party to file the action without giving any assurance that a creditor is filing and no assertion that the action is filed to satisfy a debt owed to the named Plaintiff/claimant.

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APON is now hiring lawyers and other professionals and has started fundraising. I am inviting lawyers to participate in this venture by filing petitions in all U.S. jurisdictions. I am specifically including invitations to certain lawyers whom I regard as having been disbarred because they were successful at foreclosure defense. I also am inviting all other homeowner organizations, large and small, to join this effort. I don’t want to inundate APON management with phone calls and emails.

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So I have devised a form that you can fill out if you are a prospective contributor to this effort. There is no limitation on who can participate. Anyone who thinks (or knows) that the investment banks have acquired too much power by promoting the myth that they are too big to fail can join this effort.

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Whoever you are. you can contribute money, time, and/or effort to this project. If you have advanced legal skills (courtroom experience as a litigator), or if you have organizational skills for fundraising and writing grant requests. APON is completely open to alliances with other organizations.

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Please CLICK ON THIS LINK to show your support. This is a new project that is being initiated under the name “LendingEyes.” In a petition to the Supreme Court of Florida, we will likely name APON and individual homeowners as Petitioners, along with lawyers who agree with the effort.

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We are planning on petitioning the Supreme Court in each state because that is the ultimate arbiter of preapproved forms and rules of engagement — I..e., who must allege, certify, and attach valid documents to a complaint. While legislative changes might be helpful, that might be a bridge too far since it is only in foreclosure proceedings that this problem exists.

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In nonjudicial states, the petitions will be similar but not the same as in judicial states. We believe that the rule change in nonjudicial states should require the realignment of parties if the foreclosure is contested. That means that while the homeowner can file a complaint for a TRO, the parties should be realigned such that the claimant, beneficiary on the deed of trust must allege the same things as in judicial states, and the homeowner must be allowed to file affirmative defenses in recoupment — something that is currently barred by the current application of the rules.

The reason to pursue a change in the rules and forms is that the current rules and current forms allow a party to file a foreclosure without alleging, certifying or even providing an exhibit that asserts compliance with Article 9 §203 UCC.

The current rules and forms allow the foreclosure lawyer to escape dismissal without alleging financial loss arising from the conduct of the homeowner. Judges make presumptions both from the pleading and the current rules and forms approved by the Supreme Court. They assume that the plaintiff is a creditor and that the homeowner is in default of payment due to that creditor. Neither one is true but the judge has no way of knowing that.

We believe that a homeowner should be allowed to invoke this new procedure without the requirement of going to a lawyer. This is not an endorsement of pro se litigation. Attempting to perform procedures that are unknown to the pro se litigant is as dangerous as performing surgery on oneself. Once in litigation, the homeowner should select trial counsel. However, we believe that the expected tidal wave of new foreclosures will be vastly reduced by the requirement of swearing under oath that the named claimant/beneficiary/plaintiff has actually suffered a financial loss to its loan receivable account owed by the homeowner.

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It is one thing to point to a statute and say an act is against the law. Murder is against the law but that law does not stop people from committing that act. In foreclosure, the illegal act is initiating the foreclosure process without any intention of paying off debt. Without a rule change, this will continue to be done and will continue to be seen as an institutional practice.

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The law is very simple. You may not initiate the foreclosure process without first paying value for the underlying obligation. The banks have been successful in avoiding that requirement by implication. They have fabricated documents to imply the payment of value despite the absence of any transaction in which any payment could or would be required.

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A rule change would require the named Plaintiff to acknowledge the action (like U.S. Bank, as trustee, etc.), to directly and explicitly assert ownership of the underlying obligation by virtue of a transaction in which the named Plaintiff paid value or, if a trust, then a settlor or trustor paid value in exchange for ownership of the underlying obligation.

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If the named claimant in foreclosure proceedings can satisfy the requirements already in the laws of every state then they should be allowed to appoint whatever servicers, collectors, lawyers, or anyone else to enforce payment. If they cannot, then none of the parties claiming authority (to enforce, collect, or even administer the presumed existence of any obligation owed by a homeowner ) are operating legally and within the requirements and intent of existing law.

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The reason banks and their lawyers would oppose such a change is that they can’t satsify such a requirement without lying. Failure to make the change in the rules will produce another “court run” with a tidal wabve of foreclosures on a new “rocket docket” powered by faulty assumptions, lies and erroneous presumptions used to satisfy greed rather than debt.  

The reason to pursue a change in the rules and forms is that the current rules and current forms allow a party to file a foreclosure without alleging, certifying or even providing an exhibit that asserts compliance with Article 9 §203 UCC.

The current rules and forms allow the foreclosure lawyer to escape dismissal without alleging financial loss arising from the conduct of the homeowner. Judges make presumptions both from the pleading and the current rules and forms approved by the Supreme Court. They assume that the plaintiff is a creditor and that the homeowner is in default of payment due to that creditor. Neither one is true but the judge has no way of knowing that.

We believe that a homeowner should be allowed to invoke this new procedure without the requirement of going to a lawyer. This is not an endorsement of pro se litigation. Attempting to perform procedures that are unknown to the pro se litigant is as dangerous as performing surgery on oneself. Once in litigation, the homeowner should select trial counsel. However, we believe that the expected tidal wave of new foreclosures will be vastly reduced by the requirement of swearing under oath that the named claimant/beneficiary/plaintiff has actually suffered a financial loss to its loan receivable account owed by the homeowner.

Filed under: foreclosure |