Is Non Judicial Foreclosure Constitutional

   Posted by: chris   in Fish Talk

Constitution of The United StatesThe 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.

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This entry was posted on Monday, June 13th, 2011 at 1:55 am and is filed under Fish Talk. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

3 comments so far


This is exactly where I am right now, having filed a suit “pro se” against the bank, to save my home. First their attorney moved the case out of my local Superior Court to Federal Court in another county. Then they filed a Motion to Dismiss. I sent a QWR, (second), and the reply was they “would gladly respond if I provide a discovery request”. While I’m trying to discover, comes a Notice of Non-Receipt of Opposition to Motion to Dismiss. I didn’t object due to clueless ness. Meanwhile, I’m still trying to decipher the five-inch stack of papers and exhibits accompanying the Dismissal Motion. My court date is June 29th, and most likely the sorry finale of my brief legal career. I guess I can take some solace in having cost the bank a little of their bail-out money. Any suggestions? Besides, “start packing”.

June 24th, 2011 at 3:43 am


Re your comment on foolish fish. You didn’t mention what State you are in or if it is a non judicial State.

However the reality in most cases is this:

You took out your mortgage with a bank who does not now hold the note.

For the Mers system to work the Mortgage and Note are two different documents.

When you signed the mortgage at the closing most probably Mers were mentioned as having an interest.

When you signed the Note only you and the lender were mentioned.

To foreclose on you Mers or whoever it assigned your mortgage to, has to also own the note and Mers never owns Notes, it was set up to warehouse mortgages.

If there is an assignment of mortgage and wording which says mers “assigns mortgage and said note” this is fraudulent and if you can bring it to court you will win.

In most States a Note is a transferable instrument like a check. For ownership to be legal it must be endorsed on the back like a check in the” pay to the order of” format with the new owner named.

Because your Note was most probably bundled and sold off as a investment to some town in Iceland or the Plumbers Union the endorsement page will be signed by someone from the bank you borrowed from but no new owner will be named.

Whoever is foreclosing on you must be named on the note or they are foreclosing on you illegally.

The judge might or might not be interested in what you are saying but the 14th amendment of the constitution guarantees you the right to due process, you would be wise to check this out.

It is imperative that you get an updated copy of the note with any new additions ie an endorsement page.

Remember that the banks are not beyond back engineering documents so don’t be surprised by anything.

As for rules, never ignore anything you receive in the mail from an attorney or the court, always show up for court dates on time.

Remember you have the right to appeal regardless of the Judges decision.

Trust yourself and your hunches.

Feel free to contact me.


June 24th, 2011 at 12:16 pm

Hi, Chris, I live in california and I hired an attorney to fight the foreclosure of my house. He is pushing me to modify my loan. I think I will end up fighting this on my own. I want to do it from the constitutional perspective because by using the civil code of California is simply a walk in the park for the bank. Should I need help, can I ask you for some guidance?
Thank You

November 27th, 2011 at 12:11 am

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