Pro Se Primer 101 – 3 – Constitutional Irreducible Minimum Requirements of Standing in Foreclosure

STANDING AS DEFINED BY THE UNITED STATES SUPREME COURT

“Why put all of the blame on the attorneys? Hell, most of them don’t know the law.”

If you were to walk into a 2nd grade elementary school class room and see that all of the boys are standing on their desks shaking their butts, laughing and shouting, and throwing things at the girls in the class, who respond by screaming and running, and then you notice that the 2nd grade teacher is setting at his desk doing nothing to stop the chaos, would you really blame, the children?

No, it is the teacher who is charge of the room. If the teacher does not enforce the rules of classroom behavior, then the children will act like wild monkeys. How would they know not to?

It is no different than the judge in the court case who is charged with controlling and enforcing correctness in information and procedure in a court case.

If the judge does not enforce the constitution, which is all that keeps this country great;

If the judge does not make the attorneys prove their claims and/ or does not keep them from claiming transfers of ownership of essential Promissory Notes with assignments of incidental security instruments (mortgage or deed of trust) which do nothing but describe the collateral, then, of course the attorneys are going to forge and fake and lie, worse than wild monkeys;

Then lack of subject matter jurisdiction is the fault of the judge of the court. He or she places the burden of proof of standing on the borrower (very nearly every time), yet it very clearly is the burden of the court.

The judge promised when he took the job that he, or she, would enforce and protect the laws that come from the constitution and that they defend the court ferociously from losing the public trust. Maybe that was too much to ask from a pompous ass.

Why did we all expect more of judges and attorneys anyway?

If I am any part of the public, then I can tell you for sure, the courts have lost some of the public trust.

It is difficult to pull Borrowers back from their searches for Promissory Notes, Assignments of Mortgage, MERS, PSA etc., etc., thinking like Dick Tracy and looking for a way to “prove” that the party trying to foreclose on them does not have the authority, or, STANDING, to do so.

But, if what I say is true and the judges are letting the attorneys run amuck like the 2nd graders in my description, who can blame the attorneys for running amuck. “Amuck” is quickly becoming synonymous with the “actions of the courts”.

If you had seen judges simply ignore proof when it is presented as much as I have, then what I am really trying to say is that this whole thing is only about Standing and in constitutional law only the court (the court is the judge and the judge is the court.) has the initial burden of determining if the foreclosing party is a Plaintiff with Standing.

It is only the Supreme Court that has original jurisdiction over all issues of Constitutional rights. No state judge or local judge should claim that they have superior jurisdiction to the Supreme Court and it’s decisions.

The way it has been practiced for the last 15 to 20 years has been exactly the opposite.

The judges have been sitting up there on their hands on the bench and waiting for the Borrowers to describe what the foreclosing party was up to and forcing the Borrower prove it. These cases nearly always begin with the judge placing the burden on the Borrower to prove what the Foreclosing Party has tried very hard to hide. That is a ridiculous premise. John Adams, Thomas Jefferson and the rest thought so too.

If an act of fraud is working here, then by definition the act was meant to be kept hidden.

How would the Borrower prove or disprove something he was not privy to. It is the foreclosing party who must claim that he has been wronged by the borrower and it is this same foreclosing party that must prove it (not claim it) with evidence which is “concrete and particularized”.

So, the way it works in reality law is that the judge cannot even preside over a case until he reads what the Plaintiff (in judicial states and defendant in non-judicial states) has written in their lawsuit to make the claim that the court should hand them the deed to your home and that they should get to sell it and keep the money. How this has been allowed to happen illegally ten million times is a shameful disgrace for the majority of our judiciary. It is truly unbelievable. Not untrue, just unbelievable. (There have been many beautiful and sane rulings also, but it is nowhere near “fair” yet.)

It would be very difficult for me to show you how Challenging Standing s is supposed to be working, because no one is doing what I am doing, so it is still, in essence, only in my head. There are hundreds of citations concerning case rulings on the subject, but they are mostly contract law cases from other industries. Home Loans funded with a Promissory Note are all contract law, but no one is doing it enforcing them is the correct way as required by United States Constitution, the basis of all American law.

That doesn’t change how it works with your home loan, because contract law is what governs home loans.

So, since it is the judges burden to know that he or she has subject matter jurisdiction, which he needs to even begin the case, he must see the proof of standing the Foreclosing Party wrote in his lawsuit.

Borrowers, before anything else, you must first understand the proof that is required to establish Standing. If prooff has not been presented and the judge rules without Standing and therefore without subject matter jurisdiction, then he has broken the law and this is the only situation where a judge does not have “absolute immunity”.

If he rules against you, right or wrong, without having “subject matter” jurisdiction he has done so as a “civilian” and if has barred you from any of your constitutional civil rights, he is liable to you for any money or property harm that you have suffered. You don’t really sue the judge as a judge, you sue the man or woman who acted as a judge without the requirements needed to create a legitimate court with subject matter jurisdiction.

There was no legitimate court for any foreclosure case that I have ever seen. I have seen as many as anybody.

So, first things first. Review, slowly and carefully what the US Supreme Court has determined is the constitutional minimum requirements for Standing. The words they use is the strategic offense you will use to keep your house safe from anyone that you do not owe the money to.

Let me know if you can see how those words fit your situation. If not, we will go over them again before moving on, as to how and when we would apply them.

Below is an actual paragraph from my own motion to vacate a void judgment of foreclosure.

Plaintiffs have filed to Invoke their Rights to Challenge the Standing of the Defendants at any Time Under Article III of the United States Constitution earlier into this court case, yet this court failed to even mention or give any recognition that the court had even read the Borrower/Plaintiffs’ invocation of this fundamental constitutional civil right, which was foremost the responsibility of this court.

Plaintiffs state as follows and the court ignores at its own peril:

1.) That Article III of the Constitution of the United States and the Supreme Court have established a constitutional irreducible minimum set of requirements for a party in a genuine dispute to establish Standing. Without Standing of the Foreclosing Party, all courts in the land must acknowledge that the court has no jurisdiction to hear any merits of a case and must dismiss the subject action, in this case the void and fraudulent foreclosure of Plaintiffs’ property.

1a.) That only the United States Supreme Court has original jurisdiction over constitutional question issues.

(The decisions of the United States Supreme Court, whether right or wrong, are supreme: they are binding on all courts of this land, Hoover v. Holston Valley Community Hospital, 545 F. Supp. 8, 13 (E. D. Tenn. 1981) (quoting Jordan V. Gilligan, 500 2 F.3d 701, 707(6th Cir. 1974).

(The lower courts are bound by Supreme Court precedent, Adams v. Department of Juvenile Justice of New York City, 143 F.3d, 61, 65(2nd Cir. 1998)

(Walker v. Quality Loan Service Corp. of Washington et al., No. 65975-8-1)

(Washington State Supreme Court, Bain v. Metro. Mortg. Group, Inc., et al.175 Wn.2d 83, 285 P.3d 34 (2012))

2.) That the requirements in a case of Non-Judicial Foreclosure actions are:

1. The foreclosing party must claim and prove with concrete and particularized evidence that it has sustained and Injury in Fact.

2. This Injury must be fairly traceable to the foreclosed party with concrete and substantive evidence.

3. The court must be able to redress the injury with a ruling in favor of the injured party.

3.) That if it is the alleged foreclosed party that is the claimant party then it must also 1. claim and prove an injury in fact. 2. Its’ injury must be fairly traceable to the foreclosing party. 3. Its’ injury must be able to be redressed by the court.

4.) That the United States Supreme Court defines the requirements of Standing as:

3.1.B. The Constitutional and Prudential Requirements of Standing

Inherent in the constitutional limitation of judicial power on cases and controversies is the requirement of “concrete adverseness” between the parties to a lawsuit. The rise of public interest law litigation involving claims of non-economic loss has forced the Supreme Court to craft an analytical framework for determining whether the requisite adversity is present. The Court requires that plaintiffs establish that the challenged conduct caused or threatens to cause them an injury in fact to judicially cognizable interests. By establishing that they personally suffered injury, plaintiffs demonstrate that they are sufficiently associated with the controversy to be permitted to litigate it. The question of injury raises two questions –

(1) what kinds of injuries count for purposes of standing and

(2) how certain the injury must be if it has not yet occurred.

3.1.B.1. Injury in Fact

The Supreme Court has held that, to satisfy the injury in fact requirement, a party seeking to invoke the jurisdiction of a federal court must show three things:

(1) “an invasion of a legally protected interest,”

(2) that is “concrete and particularized,” and f

(3) “actual or imminent, not conjectural or hypothetical. The following section discusses several types of injuries considered by the Supreme Court in determining whether there is a legally protected interest.

3.1.B.1.a. Economic Interests

The Supreme Court has had no difficultly determining that economic interests are legally protected interests. More difficult is determining when economic injury that has yet to occur is sufficiently imminent and likely to confer standing. The Court has been relatively forgiving in this regard. Economic injury need not have already occurred but can result from policies that, for example, are likely to deprive the plaintiff of a competitive advantage or a bargaining chip. In Clinton v. New York, for instance, the Court held that New York had standing to challenge the veto of legislation permitting the state to keep disputed Medicaid funds. The veto left the state’s ability to retain the funds uncertain, subject to the outcome of a request for a waiver. Despite this uncertainty, the Court regarded the “revival of a substantial contingent liability” sufficient to confer standing.

3.1.B.5. Injury Fairly Traceable to the Challenged Conduct

In addition to alleging injury in fact, the plaintiff must demonstrate that the injury is fairly traceable to the defendant’s unlawful conduct. In cases in which the government acts against the plaintiff, causation is simple.

3.1.B.6. Relief Sought to Redress Injury

A corollary to the Supreme Court’s requirement for standing, that the injury alleged be fairly traceable to the challenged conduct is the separate requirement that the relief sought must redress the injury. In the great majority of cases the inquiry into causation and redressability are indistinguishable.

Thus, in Warth, the Court held that there was no reason to suppose that the elimination of exclusionary zoning would enable the plaintiffs to obtain housing in Penfield. In Eastern Kentucky Welfare Rights Organization, the Court held that there was no reason to think that revoking the IRS Revenue Ruling at issue would assure that the next ill or injured poor person would be admitted to a hospital.

Furthermore, in Allen, the Court held it was entirely speculative that revoking tax-exempt status for allegedly discriminatory private schools would serve to foster public school integration. What is peculiar about the Court’s concern for redressability is the elevation of the question of remedial efficacy to constitutional status.

While the scope of equitable relief to redress unlawful governmental action has long been a matter of controversy, not until City of Los Angeles v. Lyons did the Court clearly articulate the requirement of remedial efficacy as a constitutional component of standing. The plaintiff in Lyons sought damages and injunctive relief after being choked by city police officers. He alleged that the city permitted the police department to use unnecessary choke holds indiscriminately. The Court conceded that Lyons had standing to sue for damages. However, the Court held that he lacked standing to seek injunctive relief, as an injunction would not redress his injury because it was unlikely that he would be arrested and choked again.

You really aren’t trying to outsmart attorneys or that joke of an entity the foreclosing party. What you really want to do is to place the judge in as much of a pickle as you are in (jeopardy).

Becoming a Foreclosure Consultant

A foreclosure consultant is a professional that offers to help you resolve you foreclosure problems. They can do this in several ways, which include:

• Postponing or stopping the foreclosure sale

• Getting the homeowner a forbearance, which is when the foreclosure consultant gets the homeowners mortgage payments postponed for a short period of time or getting the payments lowered

• Getting the homeowner an extension of time to reinstate their mortgage, which involves giving them time to pay off past due amounts and bring their mortgage current.

• Getting a waiver of an acceleration clause in their mortgage. This clause is what gives the bank the right to demand in full the immediate payment right after the homeowner defaults on the mortgage

• Helps the homeowner get an advance of funds or a loan to help pay on the mortgage

• Helps the homeowner avoid seriously hurting their credit rating,

To become a foreclosure consultant you have to become an attorney or apply for a government license. The professional requirements vary but generally the government will require that they register with the attorney general or a department of justice after they have fulfilled the training requirements. There are two types possible license. If you want to become a foreclosure specialist for an established agency you would have to have an associate’s license, also known as an agent’s license. If you want to be self-employed and have your own foreclosure consultancy business you would need an independent license.

The application process to get your license to become a foreclosure consultant involves:

• Undergoing pre-licensed training, which is about fifteen to twenty-five hours of in-person or online instruction that is specified by the local attorneys general.

• Paying licensing fees

• Becoming bonded

• Submitting a completed application that includes your background information, business details if starting your own foreclosure consultancy business, and any other qualifications like experience in mortgage lending or real estate.

In some cases you may also have to take a licensing exam. Once you receive your license you will need to register with the local government before you can begin practicing as a financial consultant. Generally the licenses expire after twelve months so you will have to complete continuing education and pay a fee to have them renewed. You will also have to submit a financial statement prepared by a certified accountant to the government. The foreclosure consultant will also need to set up a trust account to hold any money that is being transferred between the lenders and homeowners. If you have an independent license you will have to review the actions of any employees or associates each quarter. Those with an independent license must also obtain a bond for their services.

Why Bank Failures Can Mean Subvending Contracts For Foreclosure Cleanup Businesses

Did you know that just 60 days or so into 2010, over 20 banks had already failed? In 2009, hundreds of banks across the United States failed. While no one likes to hear of banks failing in communities across the country, it can be good news for foreclosure cleanup business owners and others who operate real estate service businesses (eg, plumbers, general contractors, electricians, etc.). Why?

Because these failed banks are often acquired by larger and/or more solvent financial institutions, which means they need the services your company can offer.

To explain, when a bank fails, it falls in the hands of the Federal Deposit Insurance Corporation (aka the FDIC). This is the initial step. Failed banks go on to be acquired by other banks, as mentioned above, because they have customers that still need to be serviced. This is, in part, why you see the FDIC seal in every bank. They protect the everyday consumer in case a bank fails.

Understanding What Happens When a Bank Fails & Why It Helps Real Estate Services Businesses

Oftentimes, once a failed bank falls into the hands of the FDIC, they contract with larger property preservation companies to handle the maintenance of the failed bank’s real estate assets (eg, foreclosed homes, foreclosed commercial properties, etc.).

And this is where it gets interesting for you, the little to mid-sized foreclosure cleanup business owner. You see, these large property preservation companies are, in many cases, simply taking too long to handle all the requests for foreclosure cleanup work because they are just overwhelmed with the number of properties on their roster.

These properties can’t sit idle just because the bank that owned them failed. They need inspections, yard maintenance, winterization, boarding up, lock changes, etc. And, these larger companies simply can’t keep up.

Add to this – the more banks that fail, the more properties fall into the big guys’ laps. So what do they do? The contract with small to mid-sized foreclosure cleaning companies (like yours!) to help them at least try to keep up.

If you’re one of the lucky ones to be properly set up as a foreclosure clean up business – ie, licensed and insured — you can target those handling failed banks to get foreclosure cleaning jobs.

Who to Target When a Bank Fails to Get Ongoing Foreclosure Cleanup Jobs

As a foreclosure cleanup business owner, you would contact the REO asset managers within acquiring institutions (ie, the FDIC or whichever institution took over the assets of the failed bank).

While it may take some elbow grease to get through to them, getting an “in” with just one of these companies can provide you with all the foreclosure cleaning jobs you will ever need. So it’s definitely worth it to put in the time it takes.

Buying Your Dream Foreclosure For 3.5% Down – FHA HUD Loan

A FHA (Federal Housing Administration) loan is especially suitable for first-time home buyers. The U.S. Department of Housing and Urban Development (HUD) acquires FHA-insured homes which have been foreclosed. HUD homes are made available for sale through websites run by management companies contracted by HUD. Real estate agents who are registered with HUD can present offers on behalf of their clients. The agent’s commission is paid by HUD.

HUD homes are sold on an ‘as is’ basis with no warranty. Since HUD does not take responsibility for any repairs, it is important to have the home inspected prior to making the offer. The down payment for FHA loans is only 3.5%, which is significantly lower than the 20% paid for conventional loans. This down payment can come from own savings, family members, employers or charity organizations. Closing costs for FHA loans are also significantly lower than conventional mortgages. An exception to the 3.5% down payment is the HUD $100 down payment initiative. Buyers can now purchase a HUD foreclosed home with only $100 down payment.

FHA has designed various mortgage loans for the public. Depending on an individual’s ability, one can select either an FHA fixed rate mortgage loan or FHA adjustable rate mortgage loan. There are also other special loans like the graduated payment mortgage loan, energy efficient loans, and other loans for other different needs. However, one of the most popular FHA loan programs is the FHA 203K Mortgage. This mortgage enables individuals to acquire financing to renovate their present homes. In addition, the FHA 203K mortgage can also be used to purchase and rehabilitate a house in a different place. Once the buyer decides which FHA mortgage suits them, they can go ahead to apply for the loan. Professional advice for choosing an appropriate loan can be provided by a mortgage loan broker.

Despite the friendly terms of FHA mortgage loans, individuals have to fulfill certain FHA mortgage guidelines. These requirements are in accordance to federal guidelines. To get an FHA loan, one must have been in stable employment, if possible with the same employer, for two years. The borrower should have a minimum credit score of 580, and a debt-to-income ratio of less than 41%. Monthly payments should not exceed 30% of the borrower’s salary. FHA will allow individuals to purchase a home three years after a foreclosure, and two years after a bankruptcy.

Since FHA loans are insured by the federal government, they come with competitive interest rates and lenders are likely to give friendly terms that will simplify the process of getting a loan. Even with less-than-perfect credit, FHA loans are easier to obtain than conventional mortgage. In particularly designated areas, K-12 teachers, law enforcement officers, emergency medical technicians and fire fighters can buy a home at price 50% less than the listed price. In addition, evacuees from hurricanes Rita, Katrina or Wilma can buy a HUD home at a discounted rate.