California Judges Bail Out on Court Hearings

We wish this story was an April Fool’s joke, but sadly it is not. Several borrowers who have filed challenges to nonjudicial foreclosures in Northern California and sought a Temporary Restraining Order to cancel a Trustee’s Sale were denied such relief by a “clerk” or “law clerk” who “appeared” at the hearing in lieu of the presiding Judge, who never even appeared in court. The “clerks”, obviously not attuned to foreclosure defense litigation and not understanding the legal arguments being made, simply denied the TRO requests without even the issuance of an Order (as Clerks cannot sign court orders), so the borrower has no Order to take to an appeals court! The borrowers were left with having to file Bankruptcy and thus litigate their issues in the Bankruptcy Court.

Which is not necessarily a bad thing. Many of the decisions which support borrower’s concerns such as legal standing, real party in interest, and chain of title defenses have emanated from the Bankruptcy Courts, including two decisions from the Bankruptcy Court for the District of Idaho and one from the Bankruptcy Court for the District of Nevada (which we previously discussed on this website which said NO to MERS on multiple fronts).

As such, expect more and more filings in Bankruptcy Court, and more and more adversary proceedings inside of the borrower bankruptcies challenging the foreclosure attempts.

Jeff Barnes, Esq.,

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