Hooray for Judge CHRISTOPHER A. BOYKO

Judge Boyko, United States District Judge on October 7, 2007 set the record straight for all US homeowners facing foreclosure.  Basically the Judge ruled that if the bank or mortgage company attempting to foreclose on your property cannot show a:

“…copy of the Assignment of the Note and Mortgage, executed as of the date of the

Foreclosure Complaint.”

They do not have appropriate proof for foreclosure on your property.  Excerpt below is taken from public court record:

Plaintiff’s, “Judge, you just don’t understand how things work,” argument reveals a condescending

mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still

control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits,

fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state

or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, “how do I

save my home,” or “if I have to give it up, I’ll simply leave and find somewhere else to live.”

In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a

default judgment and then sit on the deed, avoiding responsibility for maintaining the property while

reaping the financial benefits of interest running on a judgment. The financial institutions know the law

charges the one with title (still the homeowner) with maintaining the property.

There is no doubt every decision made by a financial institution in the foreclosure process is

driven by money. And the legal work which flows from winning the financial institution’s favor is highly

lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit —

to the contrary , they should be rewarded for sound business and legal practices. However, unchallenged

by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about

maximizing returns. Unlike the focus of financial institutions, the federal courts must act as gatekeepers,

assuring that only those who meet diversity and standing requirements are allowed to pass through.

Counsel for the institutions are not without legal argument to support their position, but their

arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing

and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this

for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak

legal arguments compel the Court to stop them at the gate.”

Case 1:07-cv-02282-CAB Document 11 Filed 10/31/2007 Page 5 of 6

 

What does this mean for homeowners about to be foreclosed?  It seems to mean that if the parties initiating the foreclosure cannot produce the appropriate documents showing that they have the legal right to do so that the homeowner may have the grounds to negotiate the foreclosure. 

 

This situation tends to occur when your mortgage is sold to a third or even a fourth party and the required documentation does not get into the hands of the new mortgage owner. 

 

I know that you may have many, many questions at this point and I will endeavor to find the answers as I continue to research this issue.  Please send me your questions at Waddell@boomershout.com