The expression “there ought to be a law” is not the same as there is a law. People who argue lack of precedent have not done legal research and have not performed legal analysis because they do not have the knowledge, training and licensing to do so. Or, in the alternative, they are too lazy to do the work. Their opinions, therefore, are political — not legal (even if they are lawyers).
For those who argue that homeowner distress is both inevitable and even right, I invite them to start seeking healthcare with unlicensed people who have a marketing idea but no training in medicine.
I am still dealing with laypeople and even lawyers who continue to spout opinions without researching the applicable law and procedure required to successfully litigate a foreclosure case against a lawyer seeking foreclosure against a homeowner. Even some of my oldest followers continue to do this, thus undermining the motivation for homeowners to fight a winnable case.
In response to the recent article by Lance Denha whom I selected to move in my place as I fully retire from the scene, many comments make blanket statements that remind me of the very famous statement by Daniel Patrick Moynihan. You are entitled to your own opinions but you are not entitled to your own facts.
Making things up that fit your political views is not the same thing as providing the kind of foundation that is required in court to establish the truth of the matter asserted in the courtroom.
In every attempt to invoke the process of foreclosure, the truth of the matter asserted has little to do with the note, which is secondary. And it has little to do with the mortgage lien, which is tertiary.
In every foreclosure action, the truth of the matter asserted is alleged or implied (i.e., claimed) to be that somebody suffered an economic injury (default) as a result of the action or inaction of the homeowner. If that is true, then the provisions of the note and even the note itself can be used as evidence of the existence of the underlying unpaid debt and the terms upon which it should be repaid.
In turn, if it is true that the homeowner owes an unpaid debt to the party named by opposing counsel, then the homeowner’s obligation of repayment has been breached, and the homeowner usually can and should lose.
If it is not true that the homeowner owes an unpaid debt that is legally due to the party named by opposing counsel, then it is legally impossible for a legal default to be legally declared. It is a legal nullity to do so. Without a default, there is no legal case that a judge can consider even if the judge believes that somehow this argument is allowing the homeowner to get away with something because of a “gimmick.”
And if it is not true that any money is due to the party named by the opposing counsel as the complaining party, then the note and lien are completely irrelevant. Their legality does not matter one iota. And that is because it is universally accepted that debts are not free-floating objects in an economic universe in which anyone can claim to collect them.
In such events, defects in the creation, transfer, delivery, and ownership of the note and mortgage merely distract from the truth of the matter asserted.
Even the existence of the debt is irrelevant if there is no allegation and corroboration presented that the debt is owed to the party named by opposing counsel.
But homeowners and their lawyers can and do waive the right to challenge such false claims when they fail to deny the truth of the matter asserted and fail to challenge the pleadings and proof offered by opposing counsel.
The court lacks authority or jurisdiction to hear the case because, in the constitution, there is a requirement that must be met to get into the courtroom. There must be a justiciable issue. There is no justiciable issue unless one party alleges they suffered harm and that the harm was caused by the opposing party.
You can’t legally allege and prove harm when you never owned the debt in the first place. Ownership of the note might mean ownership of the underlying debt, but only if it is purchased for value in good faith.
All of that is worthless if you agree in litigation to talk only about the note and the mortgage without mentioning the underlying obligation. And it is especially worthless if you admit that some third party is an authorized servicer whose records are proper business records that escape the bar of the hearsay rule.
I think all credible defense lawyers would agree that a “yes, but” defense is the equivalent of asking their client to be executed figuratively or literally.
Filed under: foreclosure |
Politics entered when massive settlements were reached for “investors” duped by crisis-era “securitization” schemes, but by which little was afforded to homeowners – the true victims. Why this politics is ignored is obvious. No one was watching the ‘hen’ house, and no one wants to politically admit error. Sadly, precedent LAW is evasive. This is not to say a homeowner cannot win on directives here. It is to say that without precedent law, attorneys do not want to take these cases – which is the predicament homeowners are left with. Without attorneys helping – power is lopsided.