Guliex: Silenced for applying the Rule of Law

Aug 3, 2017

By Neil Garfield

The Justices of the Fifth District Court and courts especially in California have been interpreting procedural rules, laws of evidence, statutory and common law differently in foreclosure cases than they do in other cases where the issues are identical as to ownership and authority to collect a debt. The Guliex decision, in this case, returns us to the rule of law in California, and hence the nation, to the extent courts follow the Courts in California. The decision inherently conflicts with other decisions in California, even if the decision is not facially apparent.

In this case, the court merely stated the law as it always was before the foreclosure crisis ( and still is in all other cases). It provides great clarity and its effect will be to reduce the volume of foreclosures generally and wrongful foreclosures especially. The decision, in this case, changes the application of the law from what has been recently enunciated in other decisions. It places the burden where it belongs — on the foreclosing party such that it cannot achieve a forced sale by nonjudicial means in a case that where it would have lost in a judicial proceeding.

Hence the decision would bar the unconstitutional application of nonjudicial legislative frameworks. It essentially reduces the use of assumptions and presumptions of facts that are not true and are within the sole knowledge and control of the party claiming to be authorized to foreclose.

The Guliex decision levels the playing field significantly by requiring actual proof rather than presumed proof. Without the publication of this decision courts in the Fifth district will continue to be at liberty to disregard the rule of law and continue to be creative in finding a basis for strangers to transactions to prevail in enforcing those transactions.

Hence the need for publication. This court has already seen countless cases of divergent rulings that undermine the simple rules of law enunciated in this decision. The publication of this decision will end at least some of the diversity of rulings and provide a stable basis upon which attorneys can advise their clients.

The public interest in the Guliex decision has been evident by allowing the clerk whose directions to both lawyers and pro se litigants and other interested parties has been inadvertently inconsistent as to the method and timing of the requests for publication. Also, by initially closing the period to submit Requests for Publication by six days, those individuals who supported the decision to publish were denied the opportunity to do so.

I can assure the Court that in addition to the notices and letters that have been tendered to the Clerk, some of which seem to have been rejected, I have received hundreds of emails and comments, mostly in California, from both attorneys and pro litigants who all want this decision to be published.

The strength and relevance of the opinion is likely why the clerk played games to diminish the number of Requests to Publish received.

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