TFH 5/21 | Foreclosure Workshop #33: Nationstar Mortgage LLC v. Akepa Properties LLC -- When Is a Foreclosing Plaintiff's Lack of Standing Jurisdictional, resulting in Dismissal?

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TFH 5/21 | Foreclosure Workshop #33: Nationstar Mortgage LLC v. Akepa Properties LLC — When Is a Foreclosing Plaintiff’s Lack of Standing Jurisdictional, resulting in Dismissal?

TFH 5/21 | Foreclosure Workshop #33: Nationstar Mortgage LLC v. Akepa Properties LLC — When Is a Foreclosing Plaintiff’s Lack of Standing Jurisdictional, resulting in Dismissal?

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

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Sunday –  May 21

TFH 5/21 | Foreclosure Workshop #33: Nationstar Mortgage LLC v. Akepa Properties LLC — When Is a Foreclosing Plaintiff’s Lack of Standing Jurisdictional, resulting in Dismissal?
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For nearly a decade following the mortgage crisis of 2008, both federal and state courts with few exceptions until very recently have completely ignored defects in a foreclosing plaintiff’s “standing,” that is, its actual ownership of defendant borrower’s promissory note.

Even to this day, in California nonjudicial and judicial foreclosure enforcement litigation, lack of such standing is no defense.

Despite borrowers’ early pleas to “show me the note,” courts generally have similarly blocked borrowers from using any lack of standing defense, especially for example in securitized trust foreclosures, ruling that borrowers are not third-party beneficiaries of pooling and servicing trust agreements and therefore “lack standing to attack standing.”

It continues to remain puzzling how courts can enter foreclosure decrees and throw borrowers and their families out of their homes in summary judgment proceedings and later in effect forfeit equity in their homes through forced auction sales where foreclosing plaintiffs have not shown that they even own the mortgage loan or especially where there are genuine issues of material fact in dispute whether they in fact do.

Only recently have a dozen or so state appellate courts held that borrowers do have standing to challenge a foreclosing plaintiff’s standing, specifically its ownership of the borrower’s promissory note at the time that a foreclosure complaint is filed, but those States are still in the minority.

But even in those states where borrowers now have that right, it is still unclear when that defense can be raised, and when it is considered jurisdictional, and what controlling evidentiary standards are applicable.

Can that defense be raised and how, for instance, during a foreclosure case, after a summary judgment is granted, prior to an action sale, on appeal, and/or as a collateral attack on a past foreclosure judgment?

And what effect does the doctrine of res judicata have on the defense of lack of standing? And the defense of lack of indispensable party? And the defense of lack of real party in interest? And the federal Fair Debt Collection Practices Act?

Moreover, who has the burden of proof regarding such lack of standing and how is that proven or disproved?

In this Sunday’s show, we will explore such related issues and explain what is actually happening in those States whose appellate courts have allowed such standing objections and how that doctrine still is being artificially limited if not completely ignored by trial courts even in those States.

We will also explain how once again the American legal system is handicapped in this area as well by The Rule Ritual and the penchant to look for problems for our solutions rather than solutions for our problems as discussed on prior shows.

We will also explore, time permitting, ways in which the defense of lack of standing might alternatively be more effectively presented to courts in other defense formats.

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Host: Gary Dubin Co-Host: John Waihee

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