The 14th amendment of the constitution of the United States clearly states in Section 1 that no State should deprive a person of life, liberty or property without due process of law.
“Section1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
However in States where non judicial foreclosure is the modus operandi the only defense available to a person who is facing a foreclosure which they believe to be faulty or illegal is to file a court case against the foreclosing party and thereby become a plaintiff.
This creates an interesting situation where an actual defendant in a foreclosure filing becomes a plaintiff in a case filed to defend their interest.
Besides having to bear the cost of filing a court case and possibly hiring an attorney, the person defending against the foreclosure by becoming a plaintiff is burdened by the issue of Res Judicata and/or claim preclusion.
The common first move of defense against foreclosure is to ask the foreclosing party to produce the note to prove that they have the right to foreclose, however Mortgage Electronic Registration Systems Inc commonly know as MERS has come up with the strategy of having their defense attorney file a motion for dismissal on grounds that no claim was made, a motion which in almost every case is judged in favor of the bank.
A case filed in civil court must present a claim on which damages can be awarded. A case which only asks for a note to be presented makes no such claim.
The real injustice comes in the reality that once a case against the lender is dismissed for “failure to state a claim upon which relief can be granted” claim preclusion is activated.
From the perspective of the law/court system, a dismissal on a motion, regardless of evidence presented is regarded as a full and final decision of a case on its merits and any future filing against the lender or its privies which is any other party involved with the bank or Mers is subject to Res Judicata which basically means it is previously judged and is precluded from being heard again..
So the situation arises, that a person who is an actual defendant in a foreclosure action in a non judicial State is forced to become a plaintiff as the only means of defense available and by so doing opens him/her self to claim preclusion merely by asking the bank to prove that they are the actual note holder and are in fact legally in a position to foreclose, which in most cases they are not.
Therefore it could be strongly argued that by denying a person facing foreclosure a means of defense other than becoming a plaintiff in a law suite, the State allowing a non judicial foreclosure is actually denying the person being foreclosed their rights under the 14th Amendment of the Constitution to due process under law.
A defendant is not required to state a claim upon which relief can be granted, the defendant under the rules of discovery can ask the bank who is the plaintiff in the foreclosure action to produce any documentation relevant to the foreclosure without recourse.
A defendant is offered full and due process under law, whereas a plaintiff who in the eyes of the law is making the claim is not entitled to due process but must substantiate their claim in full and in accordance with the rules of the court.
It is far, far easier to defend against a foreclosure than it is to take a suit against a bank. Remember that most people are in foreclosure because they have no access to money, so in all probability they will not have access to top class legal professionals and in fact some will end up defending themselves as “pro se” defendants/plaintiffs. The banks on the other hand have more money than they know what to do with and hence access to the best the legal profession has to offer.
In most foreclosure defense cases the battle is so one sided that the bank wins with ease, even though the case against them is very real. It may sound absurd but every foreclosure involving Mers is actually illegal because neither the bank nor Mers are the actual Note holder, and a foreclosing party must hold both the Note and the Mortgage.
By denying a person in foreclosure the opportunity to face the bank in court as a defendant the Non Judicial State is causing grievous harm to a person and is in all probability acting unconstitutionally.
In not honoring its Constitutional responsibilities to its citizens a State is opening itself up to the possibility of legal action on grounds that it denied a person their constitutional rights to due process guaranteed under the 14th Amendment of the Constitution of The United States.
Tags: 14th amendment of the constitution, civil court, claim preclusion, constitution of the united states, court case, defense attorney, due process of law, electronic registration, equal protection of the laws, first move, judicial foreclosure, life liberty, registration systems, section 1