Written by Foreclosure Defense Lawyer, Russell A. DeMott
Delinquent homeowners should not be treated like criminal defendants, but many times they are. Overcoming this image problem is just one hurdle home owners face in foreclosure.
When you go to court, you want to be treated with fairness and respect. In foreclosure cases, however, that’s not always the case.
When a judge hears, “the borrower is delinquent,” sometimes it’s hard getting the judge to focus on more fundamental issues with the case—like whether the plaintiff really has the right to foreclose.
This reminds me of my days as a criminal defense attorney. The Constitution affords rights to those accused of crimes. Sometimes, it’s pretty clear the defendant is likely guilty. Still, those rights must be observed. If courts don’t insist on following the law, the law will be meaningless. And that sometimes means the guilty go free. We don’t like that, but it’s the price of having a system that protects the individual’s rights over those of the masses.
And it’s that way in foreclosure defense cases. If the foreclosing party (whoever that may be) isn’t made to prove it has standing, we’ll then have a system that allows homeowner to be bulldozed by huge corporations—whether those corporations follow the law or ignore the law completely.
The 14th Amendment to the Constitution gives home owners “due process” rights. And that means the right to stand up in court and say to the lender (or servicer, or MERS, or REMIC trust) “PROVE IT.” Prove that you are who you say you are. Prove that you own my mortgage note. Prove that you engaged in some meaningful effort to offer me a mortgage modification.
Courts need to care about homeowners, about the rights of individuals. But sometimes judges get complacent and need reminding of that fact. Don’t forget that you have the right to your day in court, your opportunity to do discovery, to obtain documents, and the right to be heard.
