HAWAIIAN ATTORNEY IS FIRST TO TAKE NON-JUDICIAL TO US SUPREME COURT

Jan 23, 2011

ONE ON ONE WITH NEIL GARFIELD

COMBO ANALYSIS TITLE AND SECURITIZATION

ALL HANDS ON DECK: SUBMIT AMICUS BRIEFS

EDITOR’S COMMENT: The third rail is now being broached and we’ll get our first blush at how the court will interpret the non-judicial power of sale in connection with the right to due process before life, liberty or property can be taken. Up till now the general consensus has been that non-judicial power of sale runs so strong on the rail of a favored public policy — judicial economy — that the banks have had a free ride.

But those laws have been antiquated by the introduction of securitization of receivables. At risk here is really simple “black letter” property law regarding recorded instruments, and really simple contract law and UCC provisions. What the banks want is absolution for their sins — but in order to do it, the Supremes would be required to override the property laws of every state, sparking a states’ right feud that when raised before, gave us the Civil War in living color.

In plain language, as we have repeatedly stated on these pages, in long analyses, you don’t have to get to the question of whether non-judicial power of sale is constitutional — i.e., being a matter of private contract. Every contract must be construed in a reasonable manner. It is the MANNER IN WHICH NON-JUDICIAL SALE IS BEING USED BY NON-CREDITORS THAT VIOLATES DUE PROCESS, NOT THE STATUTE ITSELF. They are avoiding the requirements of proof of a judicial foreclosure. Non-judicial power of sale was never meant to be an exception to due process. It was always assumed that the the party using the power of sale was entitled to to file and would prevail in a foreclosure lawsuit. That is not the case now and the failure of the courts to see the distinction is corrupting the title chains of tens of millions of homes throughout the 50 states.