They Will Get You on Procedure Everytime

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Madison v. MERS et al

Madison v MERS et al

Editor’s Comment:

The Madison decision from the Arizona Appellate Court is an example of two warnings that I have repeatedly stated on these pages, in my books and in my seminars.  First doing an appeal yourself without getting appropriate advice from competent licensed counsel is most likely to result in failure.  It is a rare layman who understands the Rules of Civil Procedure.  And it is even more rare that a layman understands the Rules of Appellate Procedure.

As a result, the Madison decision will be used as yet more ammunition against homeowners, borrowers, and lawyers to “prove” that their defenses are frivolous when in fact the court of appeals decision states the opposite – even while they rule against the borrower.  On appeal the only thing the appellate court is permitted to review are those items on the record.  This is further restricted by the items that are presented as issues on appeal.  The homeowner, appearing on her own behalf, missed two opportunities to force the pretender lenders into a contested adversary position.

Like many other states, Arizona has section 33-811[c]which mandates waiver of all defenses to a trustee’s sale if the objecting party fails to obtain an injunction before the sale date.  The problem here is that the statute is worded improperly but that issue was never raised.  Obtaining an injunction requires a lawsuit filed against the Trustee and the pretender lenders which results in the issuance of a Temporary Restraining Order and which the homeowner will result in the issuance of a permanent restraining order.

Virtually all non-judicial states have a similar provision.  The obvious problem with this provision which violates due process on its face is that it requires the homeowner to first prove his or her case in court before being allowed to assert and pursue defenses and counterclaims. 

This is precisely the issue addressed in the second edition Attorney’s Workbook regarding the realignment of parties.  In a judicial state all that a homeowner is required to do is deny the allegations of the pretender lender.  This puts the matter at issue and allows the homeowner/borrower to proceed with discovery and all other pre-trial motions.  The Arizona statute relied upon by the appellate court requires the homeowner to utilize a crystal ball to determine the allegations of the pretender lender and then win at a preliminary hearing on the merits of the defenses to a claim that has never been filed. 

The issuance of the TRO in non-judicial states is discretionary and not ministerial or mandatory.  Thus the burden of proof is improperly put on the defending party before the proponent seeking affirmative relief (taking the house) is required to file any pleadings or produce any evidence that could be subject to court scrutiny or challenge by the homeowner. 

As applied, Arizona Revised Statue 33-811 [c] is clearly unconstitutional and violates due process.  The homeowner should simply be permitted to deny the factual allegations contained in the Notice of Default and Notice of Sale.  The appropriate party to bring a lawsuit is not the borrower but either the Trustee or Beneficiary.  Once the borrower has denied the factual allegations, the matter should be converted to a judicial foreclosure which is provided for in Arizona Statutes.  In the absence of the beneficiary starting such a lawsuit, it is the trustee who should file an action in interpleader stating that the Trustee is an uninterested party with no stake in the outcome and alleging that there are two parties each of whom allege an interest in the subject matter of the lawsuit and which are in conflict with each other.  The Trustee, not having the power to conduct hearings (the Trustee is not a special master) has no choice but to take unresolved issues to the court and make its claim for attorney’s fees, costs and expenses to having had to file the interpleader.

Naturally Maidson failed to raise any of these issues. So the appellate court was left with a statue which is “on the books” and which operates to waive all defenses of the homeowner to the Trustee’s sale – in the event the homeowner fails to obtain an injunction before the sale date.  In the Madison case, needless to say, the homeowner failed to obtain and apparently failed to seek an injunction prior to the sale.  Therefore the appellate court was perfectly within its right to simply affirm the trial court’s decision that stated that the homeowner had no right in this instance to assert any defenses.

In such cases of such conflicts of obvious due process the ACLU and other such organizations have occasionally been successful in having an appellate court rule on an issue that was never presented in the trial court and may not even have been presented in the initial briefs of the parties on appeal. 

Hence the outcome of this case, like so many others, was a foregone conclusion simply based on the most simple application of statutory law and the rules of civil procedure as they are currently applied in Arizona. 

Failing to obtain the TRO is therefore the same as admitting all of the allegations of fact contained in the Notice of Default and Notice of Sale and all of the allegations that would have been pled in a judicial foreclosure.  The court affirmed the trial court’s decision to dismiss the homeowner’s lawsuit. 

The kicker in this case is that the appellate court went on to overrule the trial court for having declared Madison a vexatious litigant and further restricting her ability to file future lawsuits.  This was not only a violation of due process it was a demonstration of court bias and I invite attorneys who are committed to the movement to assist Madison in attacking the bias of the trail judge and getting the decision of the trial judge vacated thus rendering the appellate decision moot. 

It is plainly outrageous for any judge to declare that a litigant is vexatious or frivolous when they clearly have never been heard on the merits of any of their claims or defenses.  The retired judge who heard this case should be prevented from hearing any further cases involving foreclosures or related evictions or any other such cases. 

Without beating a dead horse the section of the opinion entitled “background” clearly shows that Madison failed to deny the essential elements of the foreclosure and therefore all of the obvious issues regarding the identity of the creditor, the status of the loan, the nature of the actual transaction, the substitution of beneficiary, the substitution of trustee, and all the other claims and defenses were deemed admitted by both the trial court and the appellate court.  If the case can be reopened on the basis of the bias of the judge and the bias can be shown to have predated the decision that was appealed and if that results in vacating the entire order the homeowner might have had an opportunity to obtain the injunction and assert the claims and defenses, and attack the statute as it is applied.

 This is the reason why I reluctantly agreed to start a national law firm to assist homeowners and borrowers and their lawyers.  I have been doing nothing but writing, educating, and consulting for 5 years only to see the work and analysis performed by me or my team to be presented improperly and after which most defenses and claims were waived.  In the GarfieldFirm.com all of the attorneys recruited will be required to follow appropriate professional standards in the research and advocacy of the positions of clients who sign up for representation. 

There is no guarantee of any result when you hire any attorney or any professional.  The only guarantee is that they will apply their best efforts on your behalf.  The GarfieldFirm.com is a operating under a business model which requires a 50-state rollout to oppose all of the foreclosure mills who currently act in concert with each other.  Their opposition will now be an organized and consistent challenge to the fraudulent proffers of false, forged and fabricated facts and evidence in and out of court.  As I have stated before, we are only halfway through this mighty contest.  Until now we have been taking all the punches.  Now it is our turn.

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America Is Not Broke

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO TITLE AND SECURITIZATION SEARCH, REPORT, ANALYSIS ON LUMINAQ

“For us to admit that we have let a small group of men abscond with and hoard the bulk of the wealth that runs our economy, would mean that we’d have to accept the humiliating acknowledgment that we have indeed surrendered our precious Democracy to the moneyed elite. Wall Street, the banks and the Fortune 500 now run this Republic — and, until this past month, the rest of us have felt completely helpless, unable to find a way to do anything about it.” — Michael Moore

“400 obscenely rich people, most of whom benefited in some way from the multi-trillion dollar taxpayer “bailout” of 2008, now have more loot, stock and property than the assets of 155 million Americans combined. If you can’t bring yourself to call that a financial coup d’état, then you are simply not being honest about what you know in your heart to be true.” — Michael Moore

EDITORIAL ANALYSIS: Michael Moore GETS IT! He understands that what happened was political, not economic. It was theft and a grab for power that worked. And he understands that “we the people” in the preamble of our great  Constitution of the United States of America together with the 9th Amendment to that great instrument of human rights, that we THE PEOPLE have the right to take back both the power and the money.

AND that is because, as Thomas Jefferson said, that when in the course of human events” it becomes necessary for the people to act to break the bonds of governance and reinstate the rule of law, we have the right to do it. And in this great country we have every right and obligation to do it without changing our form of government or even resorting to violent revolution. We need only the will to take the streets because we mean it and to start voting and acting like we are in charge, to give up fear as our prime motivator and replace it with hope.

Just because Wall Street has TAKEN the money and the power doesn’t mean we are required to let them keep it. The framers of our government meant for us to correct imbalances of power, high crimes, misdemeanors and other criminal acts and to enable people to get fresh starts and to deprive freedom to those who commit sins against our humanity and our society, committing them to imprisonment, fine and forfeiture —- just like any little guy.

Michael Moore
Oscar and Emmy-winning director

 

America Is Not Broke

Speech delivered at Wisconsin Capitol in Madison, March 5, 2011
America is not broke.

Contrary to what those in power would like you to believe so that you’ll give up your pension, cut your wages, and settle for the life your great-grandparents had, America is not broke. Not by a long shot. The country is awash in wealth and cash. It’s just that it’s not in your hands. It has been transferred, in the greatest heist in history, from the workers and consumers to the banks and the portfolios of the uber-rich.

Today just 400 Americans have more wealth than half of all Americans combined.

Let me say that again. 400 obscenely rich people, most of whom benefited in some way from the multi-trillion dollar taxpayer “bailout” of 2008, now have more loot, stock and property than the assets of 155 million Americans combined. If you can’t bring yourself to call that a financial coup d’état, then you are simply not being honest about what you know in your heart to be true.

And I can see why. For us to admit that we have let a small group of men abscond with and hoard the bulk of the wealth that runs our economy, would mean that we’d have to accept the humiliating acknowledgment that we have indeed surrendered our precious Democracy to the moneyed elite. Wall Street, the banks and the Fortune 500 now run this Republic — and, until this past month, the rest of us have felt completely helpless, unable to find a way to do anything about it.

I have nothing more than a high school degree. But back when I was in school, every student had to take one semester of economics in order to graduate. And here’s what I learned: Money doesn’t grow on trees. It grows when we make things. It grows when we have good jobs with good wages that we use to buy the things we need and thus create more jobs. It grows when we provide an outstanding educational system that then grows a new generation of inventers, entrepreneurs, artists, scientists and thinkers who come up with the next great idea for the planet. And that new idea creates new jobs and that creates revenue for the state. But if those who have the most money don’t pay their fair share of taxes, the state can’t function. The schools can’t produce the best and the brightest who will go on to create those jobs. If the wealthy get to keep most of their money, we have seen what they will do with it: recklessly gamble it on crazy Wall Street schemes and crash our economy. The crash they created cost us millions of jobs.  That too caused a reduction in revenue. And the population ended up suffering because they reduced their taxes, reduced our jobs and took wealth out of the system, removing it from circulation.

The nation is not broke, my friends. Wisconsin is not broke. It’s part of the Big Lie. It’s one of the three biggest lies of the decade: America/Wisconsin is broke, Iraq has WMD, the Packers can’t win the Super Bowl without Brett Favre.

The truth is, there’s lots of money to go around. LOTS. It’s just that those in charge have diverted that wealth into a deep well that sits on their well-guarded estates. They know they have committed crimes to make this happen and they know that someday you may want to see some of that money that used to be yours. So they have bought and paid for hundreds of politicians across the country to do their bidding for them. But just in case that doesn’t work, they’ve got their gated communities, and the luxury jet is always fully fueled, the engines running, waiting for that day they hope never comes. To help prevent that day when the people demand their country back, the wealthy have done two very smart things:

1. They control the message. By owning most of the media they have expertly convinced many Americans of few means to buy their version of the American Dream and to vote for their politicians. Their version of the Dream says that you, too, might be rich some day ˆ this is America, where anything can happen if you just apply yourself! They have conveniently provided you with believable examples to show you how a poor boy can become a rich man, how the child of a single mother in Hawaii can become president, how a guy with a high school education can become a successful filmmaker. They will play these stories for you over and over again all day long so that the last thing you will want to do is upset the apple cart — because you — yes, you, too! — might be rich/president/an Oscar-winner some day! The message is clear: keep your head down, your nose to the grindstone, don’t rock the boat and be sure to vote for the party that protects the rich man that you might be some day.

2. They have created a poison pill that they know you will never want to take. It is their version of mutually assured destruction. And when they threatened to release this weapon of mass economic annihilation in September of 2008, we blinked. As the economy and the stock market went into a tailspin, and the banks were caught conducting a worldwide Ponzi scheme, Wall Street issued this threat: Either hand over trillions of dollars from the American taxpayers or we will crash this economy straight into the ground. Fork it over or it’s Goodbye savings accounts. Goodbye pensions. Goodbye United States Treasury. Goodbye jobs and homes and future. It was friggin’ awesome and it scared the shit out of everyone. “Here! Take our money! We don’t care. We’ll even print more for you! Just take it! But, please, leave our lives alone, PLEASE!”

The executives in the board rooms and hedge funds could not contain their laughter, their glee, and within three months they were writing each other huge bonus checks and marveling at how perfectly they had played a nation full of suckers. Millions lost their jobs anyway, and millions lost their homes. But there was no revolt (see #1).

Until now. On Wisconsin! Never has a Michigander been more happy to share a big, great lake with you! You have aroused the sleeping giant know as the working people of the United States of America. Right now the earth is shaking and the ground is shifting under the feet of those who are in charge. Your message has inspired people in all 50 states and that message is: WE HAVE HAD IT! We reject anyone tells us America is broke and broken. It’s just the opposite! We are rich with talent and ideas and hard work and, yes, love. Love and compassion toward those who have, through no fault of their own, ended up as the least among us. But they still crave what we all crave: Our country back! Our democracy back! Our good name back! The United States of America. NOT the Corporate States of America. The United States of America!

So how do we get this? Well, we do it with a little bit of Egypt here, a little bit of Madison there. And let us pause for a moment and remember that it was a poor man with a fruit stand in Tunisia who gave his life so that the world might focus its attention on how a government run by billionaires for billionaires is an affront to freedom and morality and humanity.

Thank you, Wisconsin. You have made people realize this was our last best chance to grab the final thread of what was left of who we are as Americans. For three weeks you have stood in the cold, slept on the floor, skipped out of town to Illinois — whatever it took, you have done it, and one thing is for certain: Madison is only the beginning. The smug rich have overplayed their hand. They couldn’t have just been content with the money they raided from the treasury. They couldn’t be satiated by simply removing millions of jobs and shipping them overseas to exploit the poor elsewhere. No, they had to have more ˆ something more than all the riches in the world. They had to have our soul. They had to strip us of our dignity. They had to shut us up and shut us down so that we could not even sit at a table with them and bargain about simple things like classroom size or bulletproof vests for everyone on the police force or letting a pilot just get a few extra hours sleep so he or she can do their job — their $19,000 a year job. That’s how much some rookie pilots on commuter airlines make, maybe even the rookie pilots flying people here to Madison. But he’s stopped trying to get better pay. All he asks is that he doesn’t have to sleep in his car between shifts at O’Hare airport. That’s how despicably low we have sunk. The wealthy couldn’t be content with just paying this man $19,000 a year. They wanted to take away his sleep. They wanted to demean and dehumanize him. After all, he’s just another slob.

And that, my friends, is Corporate America’s fatal mistake. But trying to destroy us they have given birth to a movement — a movement that is becoming a massive, nonviolent revolt across the country. We all knew there had to be a breaking point some day, and that point is upon us. Many people in the media don’t understand this. They say they were caught off guard about Egypt, never saw it coming. Now they act surprised and flummoxed about why so many hundreds of thousands have come to Madison over the last three weeks during brutal winter weather. “Why are they all standing out there in the cold? I mean there was that election in November and that was supposed to be that!

“There’s something happening here, and you don’t know what it is, do you…?”

America ain’t broke! The only thing that’s broke is the moral compass of the rulers. And we aim to fix that compass and steer the ship ourselves from now on. Never forget, as long as that Constitution of ours still stands, it’s one person, one vote, and it’s the thing the rich hate most about America — because even though they seem to hold all the money and all the cards, they begrudgingly know this one unshakeable basic fact: There are more of us than there are of them!

Madison, do not retreat.  We are with you. We will win together.

Follow Michael Moore on Twitter: MMFlint

 

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