In some states, 1 in 7 face foreclosure – Hierarchy of law – Correcting your legal status: Is that a thing?
Music credit: Two Hangmen – Mason Proffit
https://www.youtube.com/watch?v=CC3yZdG_2Bc
This program was prerecorded here:
https://what3words.com/bars.tooth.most
In some states, nearly 1 in 7 homes face foreclosure. The end of the moratorium effects three groups of people. Those who are:
- Flat broke and are waiting for their foreclosure / eviction.
- Those effected by the so-called pandemic but are back up on their feet.
- Those temporarily stalled in a judicial or non-judicial foreclosure.
There is a something positive for each of these groups. Unless you are lazy.
Hour 1
https://www.federalreserve.gov/econres/notes/feds-notes/why-is-the-default-rate-so-low-20210304.htm (State forbearance and delinquency stats are in Table 3.)
https://www.consumerfinance.gov/coronavirus/mortgage-forbearance-during-covid-19-what-know-what-do/ (CFPB insight.)
https://www.latimes.com/business/story/2020-04-02/home-mortgage-default (Note this is an April 2020 article.)
CFPB Final Rule: Protections for Borrowers Affected by the COVID-19 Emergency Under the Real Estate Settlement Procedures Act (RESPA), Regulation X
cfpb_covid-mortgage-servicing_final-rule_2021-06.pdfEffective August 31, 2021 (page 1).
Key takeaways:
- No new foreclosures until Jan. 1, 2022
- Unless the homeowner ignores the servicer or the proper is abandoned.
- This provision expires on January 1, 2022, meaning that the procedural safeguards are not applicable if a servicer makes the first notice or filing required by applicable law for any judicial or non-judicial foreclosure process on or after January 1, 2022. (Page 4.)
- The temporary procedural safeguards are applicable only if . . . (Page 102.)
- However is a statute of limitations would run, a foreclosure suit can be filed. (See page 4, 102, and 124.)
- Servicer must intervene to avoid foreclosure. (Page 6, 27, and 31.)
- Again if the homeowner avoids the servicer, all bets are off and foreclosure can begin.
- Relaxed loss mitigation options. (Page 5, 16, and 74-99)
- The rule permits (not require) servicers to offer streamlined loan modification options.
- Modification is normally a rigid process but the records requirements and timelines are relaxed for those who fell behind because of the mess the government made.
- The servicer must work with those in active in short-term payment forbearance programs that were given based on incomplete loss mitigation applications. (Page 7, 55, 61-68, and 146, 183, and 205.
The servicers need to work with you. That’s a good thing.
Hour 1 Part 2
Bill got into a tiff with a know-it-all over federal common law. This background sets up the second hour.
Hour 2
“American Jurisprudence” and “Corpus Juris Secundum” are second tier authorities
(A condensed lesson from Sept. 11, 2011)
Legal encyclopedias do not control the court, no matter how respected or scholarly.
They are secondary authorities. All of their explanations and commentary are useless in a real knock-down-drag-out-fight. But, the cases cited are primary authorities. The problem is that the UCC argument hasn’t matured enough for comprehensive commentary in these volumes.
One the other hand, your state’s UCC is ‘the’ top-tier primary authority. It controls your court.
The UCC is positioned as a higher authority than your state’s caselaw. Why is this? Because the caselaw cannot change the legislature’s intent and the clear language of the law.
Here are some links that explain the hierarchy of legal authorities.
Library of Congress
Bluebook Order of Authorities
Florida A&M University: Basic Legal Research: The Hierarchy of Authority
Quoted section of the Model UCC at Cornell:
§ 1-103. Construction of Uniform Commercial Code to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law.
(a) The Uniform Commercial Code MUST be liberally construed and applied to promote its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.
(b) Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions (emphasis added).
For good measure:
American Jurisprudence (Am. Jur.) on Contracts
The Book I quoted:
The Uniform Commercial Code Made Easy 1st Edition
Common law permits the police to set a man on fire, burning him to death.
Be careful what you sing for. Especially the common law.
You might be rooting for your opponent
In my prior post, Texas Supremes circumvent statutes of limitations, I showed how the Texas court surmounted the Texas legislature’s intent, for the benefit of the bank by using doctrine.
Of course I received a small flurry of emails praising the common law. Perhaps I am simple-minded. Actually, this illustrates that people do not understand the nature of ‘doctrine’.
Let’s look up doctrine in Black’s Law Dictionary, 9th Ed.
Oh, and a holding is?
We see this is judge-made law. No statutes or codes. As “of a matter of law” is not in the light of statute, controlling or otherwise. It’s a court’s trump or get out of jail card for a case that is going sideways.
So on one side, people bitch that the courts don’t follow the law or make it up as they go, and on the other hand, people want the common law as if it is sacred—in opposition to statute law.
Shh! Don’t tell anybody, but statutes such as the UCC would serve them better if facing foreclosure.
Just imagine if the statute of limitations was honored in this Texas case above. The now prior-homeowners would be much better off.
Another Doctrine is Qualified Immunity
Take a few minutes to read this article 5th Circuit Grants Qualified Immunity to Cops Who Ignited a Suicidal, Gasoline-Drenched Man by Tasing Him
The courts don’t use loaded-dice—they simply set the dice down with the desired numbers facing up. You lose.
I will not go into the evils of qualified immunity, but I do want you to understand it is a doctrine—a judicially expedient escape clause.
Of note from the article
“The severity of the threatened crime, i.e., felony arson, was considerable,” the appeals court says. “Olivas posed a substantial and immediate risk of death or serious bodily injury to himself and everyone in the house. He was covered in gasoline. He had been threatening to kill himself and burn down the house. He appeared to be holding a lighter. At that point, there were at least six other people in the house, all of whom were in danger.”
My sarcastic comment: The police were in danger of him setting himself on fire, so they set him on fire with Tasers. The is judicial wisdom and logic extraordinaire.
The best that can be said of this decision is that the court did not dodge the constitutional issue, as judges [often do] in cases involving [the doctrine of] qualified immunity. The Supreme Court has [said] a court is free to dismiss claims under 42 USC 1983 once it determines that the rights police allegedly violated were not “clearly established,” meaning it can leave unresolved the question of whether their actions were constitutional. Instead of resorting to that dodge, the 5th Circuit has forthrightly declared that the Fourth Amendment does not prohibit police from firing Tasers at a suicidal, gasoline-drenched man[.]
* * *
“Pursuant to 5th Circuit Rule 47.5,” a footnote in the decision says, “the court has determined that this opinion should not be published and is not precedent.”. . . But the rule adds that “opinions that may in any way interest persons other than the parties to a case should be published.” Publication may be warranted, for example, if the decision “concerns or discusses a factual or legal issue of significant public interest.”
* * *
In other words, the 5th Circuit panel believed this decision was a straightforward application of Fourth Amendment case law of no interest to anyone but the plaintiff and the defendants.
Move along folks. Nothing to see here.
Bottom line
The doctrine of qualified immunity overlooks a multitude of sins against the public. And doctrine (common law) can work evil against homeowners facing foreclosure.
Moral of the story. Learn the UCC and control the court’s landscape.
Side note. I am not saying statutes are beautiful things. Quite the contrary. Many federal criminal statutes don’t even have an element of intent. Some are not even under Title 18.
I enjoyed the book, “The Conviction Machine,” which is a worthy read addressing this area and many more. My current book is, “Three Felonies A Day: How the Feds Target the Innocent.” These books are nauseating when you consider the system was designed for justice.
What is even more nauseating is how homeowners who try and fight foreclosure with simplistic maxims such as “unclean hands,” and common law/caselaw holdings (that only serve the banks and court) instead of claiming the UCC as their bulwark and artillery.
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