I was listening to the Mike Church show on Sirius Satellite this morning, and the topic was the mortgage crisis. His take was that we have not yet reached a bottom (I agree) and that the bottom is being delayed because of the technicalities that homeowners are using to delay foreclosure. He also complained that the few hold outs were prolonging the recession for the rest of the country.
That “technicality” is the Constitution of the United States, which guarantees due process to each of us. That includes, among other things, the right to have my day in court. The right to demand that the government can’t take my property:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Before any of go off about how the 4A only applies to the government seizing your home, ask yourself who owns your mortgage. It is likely FNMA (Fannie Mae), which is owned by the government.
In order to take my home in foreclosure, the bank needs to prove:
1 That I fall under the court’s jurisdiction (the land being foreclosed on is in the court’s jurisdiction)
2 That the bank has the capacity to sue me for foreclosure
3 That I owe the bank money (where is the original note? If they can’t produce it, how can the court know if they sold it or not? What if they did sell it? What would stop the other party from trying to collect later?)
4 That I failed to pay that money (can they prove how much I owe?)
5 That the loan is secured by my property (is the mortgage and note proper?)
I leave you with this quote:
Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).