Weisband Commentary

Judge Holloway clearly took some giant steps forward in both clearly explaining the application of law with respect to standing. But I think she was comparing apples and oranges when she came to the conclusion that she should not impose restrictions on the right to foreclose that were “greater than” those imposed by state law.

The mistake, I believe, is that the standard she was using was non-judicial process, which by definition is private. She skipped over the part that counted. Arizona has a judicial foreclosure process and like every other state in the country, such process must conform with due process requirements that are the law of the land.

By finding that GMAC and MERS lacked standing but opining that they don’t have to establish ALL the requirements of real party in interest, she sent the inadvertent signal to pretender lenders that they can still use non-judicial foreclosure as a hail Mary pass over the requirements of due process under Federal and State constitutional law.

The underlying defect and theme of foreclosure litigation is that non-judicial process was not intended and cannot be used to sidestep due process.  The Judge should have compared the requirements of real party in interest to JUDICIAL foreclosures in Arizona and not the private contract of non-judicial foreclosure.

There she would have found that everything was in sync and that the pretender lenders don’t have the option of getting a pass (get out of jail free card) on due process. The inevitable final conclusion of this legal debate is simply that non-judicial process does not apply to securitized loans. We are not there yet, but we are moving closer every day.

Posted in Uncategorized |