50 Ways that Courts Leave Homeowners Behind

50 Ways that Courts Leave Homeowners Behind

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On June 14, 2010, I first went on the air with Honolulu’s veteran talk show host
Rick Hamada on KHVH-AM in Honolulu for a half-hour weekly radio show
discussing foreclosures.
At that time the general public and homeowners, in particular, knew little about
the mysteries of foreclosure litigation, securitized trusts, robo-signers, and
judicial officiating, mainly because it was all taking place in relatively isolated and
scattered courtrooms.
Eventually with the invaluable assistance of former Hawaii Governor John
Waihee, also an attorney, I started my own one-hour talk show on KHVH-AM, The
Foreclosure Hour and John and I have spent almost every Sunday since then
investigating virtually every incredibly horrifying and abusive aspect of American
foreclosures.
Again, our goal has been to use the medium of radio to educate the general
public and homeowners in particular about what has been largely hidden from
public view and thoroughly misunderstood even by those foreclosed on, and also
including unfortunately by many if not most judges, lawyers, and legislators alike.
John and I have been surprisingly pleased by all of the emails and voice mail
messages that we receive weekly, regrettably more than we possibly have the
time to feasibly respond to.
And recognizing that our listenership has greatly increased locally and nationally
and even internationally since we first went on the air, John and I thought we
would try to summarize virtually everything that we have learned and presented
on past shows about the American foreclosure system.
Summarized below is what we have learned during and since the six years that
we have been on the air on KHVH-AM, identifying briefly at least 50 all’
encompassing ways in which the American foreclosure system has been rigged
against homeowner borrowers.
This list will also eventually serve as an index to our past radio shows and
perhaps can be annotated with applicable case law on our website.
This is believed to be the first time an effort has been made to list all of the major
overwhelming pervasive ways that the American legal system has been abusing
homeowner/borrowers.
For that reason, we expanded our Sunday’s Sixth Anniversary Show to two hours.
Our working hypothesis is that once all of these abuses, mostly unique to the
foreclosure system, are understood and “we see the forest for the trees,”

American homeowners will finally be able to better understand the breadth of the
injustices waged against us and to finally do something about it with our without
the assistance of our courts.
For what is needed is not merely individual court victories however welcome
against this inconsistent, contradictory, and corrupt system, but a systemic
change, and at the end of the broadcast we suggest what that systemic change is
and can be.
Below in outline form are the 50 summary topics briefly highlighted on our Sixth
Year Anniversary Show — seeing the forest for the trees. You need to listen to the
full two hours to fully understand these 50 ways in which the system is rigged
against homeowners/borrowers.

  1. Judicial ‘free house” prejudices against borrowers VERSUS judicial
    inconsistent awarding of “free houses” to foreclosing mortgagees and loan
    servicers in foreclosure cases.
  2. Borrowers paying mortgage insurance premiums VERSUS foreclosing
    mortgagees inconsistently collecting the insurance reimbursements and running
    off with double and even triple recoveries in foreclosure cases.
  3. Hundreds of billions of federal and state regulatory sanctions assessed against
    and paid by banks and loan servicers VERSUS inconsistently relative pennies
    distributed to borrowers foreclosed upon in foreclosure cases.
  4. Federal mandated loan documentation as a contract of adhesion VERSUS
    federal Truth in Lending laws inconsistently mandating accurate loan
    disclosures.
  5. Law degrees and Bar admissions VERSUS inconsistent professional
    i ncom petence regardi ng foreclos ure defense.
  6. Judicial confirmation of auction sales based on credit bidding in foreclosure
    auctions VERSUS inconsistent deterrence of competitive bidding which therefore
    depresses the amount of the successful bid.
  7. State control of recording offices guaranteed by the Tenth Amendment to the
    United States Gonstitution VERSUS inconsistent back door federalization of
    mortgage registration in the United States.
  8. Federaljudicial ethical standards prohibiting a presiding judge’s ownership of
    even one share of stock in a bank in foreclosure litigation in order to avoid the
    appearance of impartiality VERSUS contrary State judicial ethical standards
    prohibiting stock ownership in a bank by a presiding judge in foreclosure
    litigation only if considered de minimis.
  9. Government access to justice programs VERSUS inconsistently the prohibitive
    cost of access to justice in foreclosure cases.
  10. The due process requirement of judicial impartiality in court proceedings
    VERSUS inconsistently the self-serving, self-recusal procedures in foreclosure
    litigation.
  11. Gonsumer protections on the books protecting borrowers VERSUS how those
    consumer protections are inconsistently applied in foreclosure cases concerning
    contract and constitutional rights, including the right to trial by jury.
  12. Regulatory federal and state laws protecting borrowers by regulating banking
    VERSUS inconsistently the complete lack of enforcement of those laws within the
    shadow banking securitized mortgage market.
  13. The provision of federal and locally funded legal aid programs for those
    financially disadvantaged VERSUS inconsistently the complete lack of effective
    assistance for those financially disadvantaged in foreclosure litigation.
  14. Federal “state action” jurisdictional restrictions VERSUS the inconsistent
    reality of extensive federal control over the entire foreclosure process, including
    the documents used, nonjudicial proceedings, the underwriting guidelines, and
    the fees and costs chargeable by so-called local foreclosure mills.
  15. The politically correct justification for the remedy of foreclosure as
    supposedly necessary to preserve the housing market and housing values
    VERSUS the inconsistent reality of the recent destruction of the housing market
    and housing equity due to foreclosures.
  16. The traditional rules of evidence controlling admissibility and trustworthiness
    in court proceedings VERSUS the inconsistent admission of hearsay uniquely
    allowed by foreclosing mortgagees in foreclosure cases to satisfy their burden of
    proof, particularly by so-called Declarations of lndebtedness signed by persons
    having no such personal knowledge or understand of prior servicers’ business
    procedures.
  17. Foreclosures treated by courts as solely an economic contractual problem
    VERSUS foreclosures inconsistently being also equally a social and a political
    problem for the entire community, resulting in divorce, suicide, breakup of the
    family, substance abuse, unruly children, and homelessness.
  18. Traditional mortgages being governed by contract law VERSUS nontraditional
    securitized trust mortgages in reality being inconsistently securities with
    borrower/homeowners involuntary and unknowingly issuers and so-called
    lenders being inconsistently commissioned securities dealers, requiring the
    application of securities laws and not real property/negotiable instrument laws.
  1. The monetary regulatory sanctions and fines levied upon banks now in the
    hundreds of billions of dollars since 2008 are indirectly paid by Bank
    shareholders VERSUS those sanctions in reality are inconsistently indirectly repaid by United States taxpayers through the banks virtually unlimited interest-free draws at the Treasury window.
  1. Deficiency judgments in foreclosure cases against borrowers have usually
    been supposedly based upon the right to fully recover what was loaned VERSUS
    in reality deficiency judgments in foreclosure cases have often represented
    unjust enrichment for foreclosing mortgagees realizing much more money than
    what they loaned including double and even triple recoveries by flipping the
    properties, often immediately, or through government (particularly FDIC) crony
    capitalism insider subsidies.
  2. Professional licensing of lenders, insurance companies, loan servicers, and
    mortgage brokers is said to protect borrowers VERSUS the inconsistent reality
    that self-dealing by them continues to predominate in the foreclosure industry,
    yet there has not been a single criminal prosecution of a major bank executive
    even started since the mortgage meltdown of 2008.
  3. Bills of Rights for homeowner/borrowers have been enacted by many States
    VERSUS inconsistently a lack of such enforcement predominates due to
    inadequate funding and personnel.
  4. Class actions and whistleblower actions to discipline lenders and loan
    servicers by compensating borrowers for foreclosure abuses have been filed and
    occasionally successful VERSUS inconsistently in foreclosure cases the results
    have been large rewards for class and whistleblower counsel with pennies for the
    victimized borrowers.
  5. The federal government has sponsored loan modification programs to assist
    homeowner/borrowers VERSUS in reality loan modification processes have been
    largely unsupervised, subjecting homeowner/borrowers to what has been called “loan modification hell,” a thoroughly dishonest and fraudulent, emotionally over-stressing process, with few loan modifications granted on terms permanently of any real assistance and then only to a relatively few homeowner/borrowers.
  1. Loan servicers have admitted using robosigners to create false documents in
    foreclosure cases and submitting them into evidence in court with false
    representations designed to and successfully defrauding courts and borrowers
    by using those fraudulent documents to foreclose and evict VERSUS our courts
    inconsistently still continuing to themselves robo/rubber-stamp the false
    admissibility of those documents as evidence in foreclosure cases.
  1. The American judiciary understandably adheres to the doctrine of stare
    decisis which requires that courts follow precedent and only overrule prior
    judicial decisions when absolutely necessary so as to preserve reliance on past
    judicial decisions VERSUS what might in the foreclosure field be called “stare
    stupidious” instead, inconsistently irrationally adhering to case precedent that
    was designed for enforcing traditional mortgages and not securitized trust
    mortgages, handed down at a time when such nontraditional mortgages were
    widely misunderstood, which prior decisions are today known to have no
    intelligent application in deciding foreclosure disputes and which have become
    instruments for fostering fraud.
  2. Statute of limitations generally begin to run in mortgage/deed of trust contract
    situations when formally accelerated by written notice including by notice of a
    nonjudicial foreclosure or by the filing of a foreclosure lawsuit VERSUS
    inconsistent recent attempts by foreclosing mortgagees to argue to courts that
    they have the power to decelerate an acceleration in foreclosure cases by written
    notice to the borrower, thereby restarting the statute of limitations all over again.
  3. The UGC requires that an allonge to a negotiable instrument such as a
    promissory note be affixed to the note VERSUS the contrary practice in court of
    foreclosing mortgagees submitting allonges on a separate sheet detached from
    the note, which are accepted into evidence inconsistently routinely by most
    courts in foreclosure cases.
  4. Most courts continue to require monetary tender as a precondition to
    borrower relief, such as for securing a temporary restraining order preventing a
    nonjudicial foreclosure or for securing a stay pending appeal or for being allowed
    to go to trial to secure a TILA rescission VERSUS to the contrary the reality that
    no such security should be needed in such situations especially where
    ownership of the mortgage loan is in dispute, and that even if so the real property
    itself is partial or full substitute security.
  5. One of the fundamental pillars of Anglo-Saxon Jurisprudence is the adversary
    system based on the premise that the truth is best determined in court if equally
    equipped and intelligent advocates argue their adverse positions before a
    disinterested neutraljudiciary VERSUS the contrary reality that in foreclosure
    cases there has been an imbalance of advocacy and an imbalance of funding
    having the reverse effect than that intended by the adversary system in
    foreclosure cases.
  6. Promissory notes secured by mortgages/deeds of trust on real property are
    traditionally considered to be negotiable instruments freely transferred like
    monetary currencies VERSUS to the contrary conditional payment instruments
    voiding negotiability.
  1. Promissory notes secured by mortgages/deeds of trust on real property are
    often claimed to be UCC endorsed as bearer notes and possession said to be
    transferred to a holder VERSUS such promissory note endorsements being
    inconsistently rubber-stamped or inkjet applied and/or undated and/or
    unaccompanied by powers of attorney authorizing stamping and/or by signatures
    of individuals no longer employed by the endorsing company by the time the
    promissory note was created and/or affixed on a separate sheet of paper even
    though there is room at the bottom of the promissory note for endorsements.
  2. Judicial independence is said to be one of the pillars of American democracy
    VERSUS inconsistently the undemocratic nature of judicial unaccountability
    especially prevalent in foreclosure litigation.
  3. The judicial rejection of the borrowers’ early show-me-the-note foreclosure
    defense and the inconsistent judicial acceptance of the foreclosing mortgagees’
    recent here-is-the-note foreclosure offense VERSUS the contrary reality that with
    respect to securitized mortgages/deeds of trust the note follows the mortgage
    due to investor equitable rights controlling the notes.
  4. MERS in the stated capacity as nominee for lenders and their assignees is
    written into over 60 million mortgages in the United States VERSUS to the
    contrary there being no such capacity in the American laws of agency.
  5. MERS in the stated capacity as nominee for lenders and their assignees is
    written into over 60 million mortgages in the United States VERSUS the failure
    inconsistently to identify which MERS is the nominee in foreclosure cases since
    there have been four separate MERS entities: MERS I (Merscorp Holdings, lnc., a
    Delaware corporation, which owns and runs the MERS electronic database),
    MERS 2 (Mortgage Electronic Registration System, lnc. formed in 1997 by MERS
    1), MERS 3 (formed in 1998 as a Delaware corporation by MERS 2 as “NEW MERS, lnc.” lasting six months before changing its name to MERSCORP), and MERS 4 (a Delaware corporation created in 1999 by MERS 1 and also called Mortgage Electronic Registration Systems, lnc., the significance of which MERS is
    identified as the nominee in a specific moÉgage being whether MERS’ 1998
    corporate resolution authorizing signing officers applies.
  6. Loan Modification procedures established by federal law are controlled by
    federal regulations and administered by private loan servicers based on borrower
    qualifying formulae VERSUS the inconsistent existence of conflicts of interest
    among loan servicers approving loan modifications and contrary restrictions
    embedded in securitized trust Pooling and Servicing Agreements.
  7. Courts have been awarding major damages against banks in favor of and
    protecting investors in securitized trusts based on securities law violations of
    lending guidelines VERSUS the opposite treatment given homeowner/borrowers
    in foreclosure cases.
  1. Gourts have been awarding relief to lenders through retroactive application of
    judicial interpretations in foreclosure cases VERSUS inconsistently awarding
    relief to homeowner/borrowers through prospective application only of judicial
    interpretations, for example when comparing the United States Supreme Court
    TILA opinions in Beach in 1998 and Jesinoski in 2015.
  2. State legislatures and courts have been requiring foreclosure attorneys to file
    sworn statements in foreclosure cases subject to disciplinary sanctions that they
    have personally researched and found the foreclosure paperwork they file in
    court to be valid in response to national robosigning crisis revelations VERSUS
    foreclosure attorneys inconsistently merely parroting the hearsay declarations of
    loan servicer representatives in their so-called attorney affirmations blindly
    accepted by courts even though contrary to the rules of evidence.
  3. Court appointed sale commissioners and power of sale appointed sale
    trustees are considered neutral auctioneers VERSUS to the contrary they are in
    effect appointed or controlled often by foreclosing mortgagees providing the
    illusion of neutrality only.
  4. State and federal laws require that litigation be brought in the name of a legal
    real party in interest having capacity to sue which in foreclosure cases means
    that a purported foreclosing mortgagee with legal capacity must own the loan
    when filing a foreclosure lawsu¡t VERSUS the inconsistent misuse of that
    requirement by courts to allow substitution of the real owner of the loan during
    the foreclosure lawsuit or to ratify the original filing during the foreclosure
    lawsuit, and to enforce a mortgage loan furthermore even if the stated original
    lender is a fictitious dba having no legal capacity to contract or to sue, not
    registered as such in the State or Gounty in which the court is located.
  5. Rocket dockets have been created by courts to quickly process foreclosure
    cases to eliminate crowded foreclosure case backlogs often denying borrowers a
    fair hearing VERSUS inconsistently the slow snails’ pace at which foreclosure
    appeals to the prejudice of borrowers foreclosed on are considered and disposed
    of.
  6. Courts allow loan servicers to contract for force-placed insurance when
    borrowers reportedly fail to maintain adequate insurance VERSUS loan servicers as well as lenders often found to be self-dealing, owning an interest in force-placed insurance entities or receiving kickbacks from such entities, resulting in above-market charges in foreclosure cases or even contrived insurance deficiencies charged to borrowers who have current insurance actually in place.
  1. The great majority of mortgage loan monthly payments are tied in amount to
    various changing interest rates subject to changing published indexes
    supposedly outside the control of lenders VERSUS evidence that at least one
    such index, the London Libor Rate, has to the contrary been found by regulators
    to have been continually manipulated by major banks, the courts inconsistently
    granting relief in the form of damages to investors, but not to borrowers.
  2. Discovery is essential to borrowers for winning foreclosure cases VERSUS
    many courts have to the contrary restricted such discovery, concluding that it
    would be too burdensome to foreclosing mortgagees or inconsistently irrelevant
    based on outdated foreclosure case precedents.
  3. Courts including the weak opinion of the California Supreme Gourt in Yvanova
    have created a distinction between void and voidable note and mortgage
    assignments stemming from securitized trust transfers VERSUS when in reality
    to the contrary the issue being not whether a mortgage assignment violated the
    securitized trust Pooling and Servicing Agreement and thus enforceable or not,
    and not even whether REMIC tax laws were violated, but whether the foreclosing
    mortgagee can prove it owns the mortgage loan or not based on the validity of
    the assignment pursuant to the rules of evidence verifying standing.
  4. Foreclosing mortgagees whether in foreclosure or ejectment proceedings as
    plaintiffs have the burden of proof VERSUS courts to the contrary frequently
    shifting that burden unfairly to borrowers which is often impossible for borrowers
    to satisfy either financially or time-wise.
  5. Foreclosing securitized trust mortgagees as defendants routinely remove
    borrower state court lawsuits to federal district courts based on diversity of
    citizenship or there being a federal question involved in the case VERSUS federal
    district courts to the disadvantage of homeowner/borrowers apply different
    pleading and jurisdictional requirements that favor foreclosing mortgagees that
    can result in dismissals with prejudice against borrowers inconsistent with what
    the result would have been in state courts.
  6. Borrowers who receive adverse foreclosure, confirmation, eviction and/or
    denials of temporary restraining orders against nonjudicial auction decisions
    have the right to appeal and for a stay of enforcement pending appeal by posting
    adequate security VERSUS the practice of courts inconsistently to ignore the
    value of the real property itself in whole or in part as substitute security.
    No one needs to tell our listeners how bad the foreclosure system is, but John
    and I believe that no one has been aware of the full extent of the amorphous
    galaxy of abuses inherent in the American foreclosure system and what if
    anything can be done about it.

John and I literally stumbled onto the solution during our live radio broadcasts,
and on next Sunday’s radio show John and will share our unique findings with
everyone.

This Post Has 2 Comments

  1. I’m not that much of a internet reader to be honest but your blogs really nice, keep it up!
    I’ll go ahead and bookmark your site to come back down the road.
    Cheers

  2. Shirley Taylor

    So odd, I just started my research into Non-judicial foreclosures, which injects, Ejectment lawsuits on the homeowner, when the mortgage company, bank, or servicer does not have standing or authority to foreclose, but because the public is not aware of how these systems works, and not aware of the court system, it is happening. I know first hand I was ejected from my home of twenty- three years on January 04, 2022, with an improper ejectment, by the Sheriff’s Department in my city. I just wrote an article on this. I need to make sure it is used to help homeowners everywhere, that is not aware of what is happening, homeowners need to be educated on mortgages when they are signing. Future homeowners should have a Real Estate Attorney with them when closing.

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