Monday, January 24, 2011

Additional ammunition for homeowners in non-judicial states: address the burden of proof prior to coming to court

As I previously posted here and here, the problem with non-judicial states is that a homeowner may never get a day in court to defend himself from a nonjudicial foreclosure because of certain evidentiary presumptions of signatures on instruments (mortgage notes, etc.) and presumed truth of the matters stated in notices of default and substitutions of trustee recored by the banks in the land records.

One easy solution seems to be to counter-record documents. Care should be taken how such documents are worded, but if you can point to a defect in the notice of default (NOD), such as was the case in the two recent Nevada cases, you can record something like a document entitled "Memorandum of Defective Notice of Default" or, less elegantly styled, "Notice of Defective and Void Notice of Default," etc.  The Memorandum or Notice so styled would then proceed to lay out the reasons why you believe the NOD is defective.

This accomplishes two things: (1) it puts the world (and potential foreclosure buyers) on notice that the non-judicial foreclosure process may be defective and may force the bank and foreclosure trustee to address it before they can conduct an actual sale; and (2) after a judicial challenge to the defective foreclosure, the court will have before it two pieces of evidence of equal evidentiary weight: the NOD and the homeowner's Memorandum, both of which would enjoy evidentiary presumptions of the truth of the matters stated therein.  The bank then should not be able to rely on its self-serving assertions in the NOD just because the NOD is "recorded."

1 comment:

  1. I live in NC is this a judicial or nonjudicial state, and what can I do to get my hands on proof that wells fargo now owns my loan?
    Sincerely, Tina