Tuesday, May 14, 2013

Sleazy Bankster Backs Down When Confronted On Use Of Dubious Foreclosure Paperwork; Abruptly Withdraws Action In Apparent Attempt To Dodge Pro Se Homeowner's Constitutional Challenge To Provision In Colorado Foreclosure Law By Rendering The Controversy Moot

In Denver, Colorado, The Denver Post reports:

  • US Bank on Friday backed down from its efforts to foreclose on an Aurora woman whose federal court battle against it has taken on the constitutionality of Colorado's foreclosure laws.

    Just days after lawyers for the bank told a federal judge they've always had the original documents necessary to foreclose on Lisa Kay Brumfiel's tri-level house legally — and U.S. District Judge William J. Martínez said to produce them — the bank rescinded the whole thing.

    Despite the move to make a nearly two-year nightmare to save her house go away, Brumfiel on Friday insisted she's pressing on.

    "I would rather risk losing my house again than to selfishly watch this corrupt process continue for others," said Brumfiel, a 43-year-old part-time saleswoman who took on the court battles without a lawyer. "I know too much, and I don't want the blood of it on my hands."

    But the ultimate decision might now be out of her hands.

    US Bank on Friday told the Arapahoe County public trustee to withdraw the foreclosure case it filed in September 2011, then filed a request with Arapahoe County District Court Judge J. Mark Hannen to dismiss the order he signed last December to sell Brumfiel's house.

    Closing the foreclosure case is automatic. The motion to the judge is not.

    The bank's move could be a tactical one, legal experts said, designed to make not just Brumfiel's foreclosure go away, but her federal lawsuit, too.

    Theoretically, US Bank could get Hannen to dismiss his order — whether Brumfiel agrees or not — and then ask for the federal case to be dismissed. Should Martínez agree, the bank could start a new foreclosure case against Brumfiel, forcing her into a whole new cycle of court battles.

    But Martínez could also choose to ignore the request and move ahead with Brumfiel's claim that Colorado foreclosure law violates her constitutional right to due process.

    Brumfiel's federal lawsuit initially sought to enjoin the county foreclosure sale of her house. To obtain that, Brumfiel must first prove she's in danger of imminent harm if the sale occurred.

    Martínez issued an interim preliminary injunction Monday and scheduled a hearing for Wednesday. But with no foreclosure, there might be no case.

    "It's a tactic that would allow you to argue there's no longer any immediate harm because there's no longer a foreclosure," Keith Gantenbein, a foreclosure lawyer not involved in the case, said of the bank move to rescind.

    "But then you turn right around and file again, forcing the homeowner to go through it all for another two years. It's designed to wear you down," he said. "Sadly, it happens a fair bit." Attorneys for the bank refused to comment.(1)
  • In an order filed Thursday, Martínez told US Bank that he wanted to see original endorsements on the note and deed of trust by Friday. Endorsements are the signatures that appear on the back of the documents showing the chain of ownership.

    The bank told the court Friday that it had only the blank undated indorsement on the loan from First Franklin.
For the story, see US Bank walks away from foreclosure on Aurora woman.

See also, Banks' right to foreclose in dispute (The bank foreclosing on an Aurora woman challenging the constitutionality of Colorado's foreclosure laws did not formally own the right to take her house until a month after it filed its case to do so, public real-estate records reviewed by The Denver Post show).

(1) It appears that by rescinding the foreclosure, the bankster is attempting rendered moot the homeowner's Constitutional challenge to the relevant provision in the Colorado foreclosure law at issue. If so, the bankster could then argue that no actual case or justiciable controversy is left to be decided and, consequently, would ostensibly leave the federal court without jurisdiction to hear the case. To go forward and hear the case at this point may lead to a judicial pronouncement that does not affect the rights of the litigants in the case before it, but merely represents an impermissible advisory opinion.

See, for example,  North Carolina v. Rice, 404 U.S. 244 (1971), in which the U.S. Supreme Court made this observation in this regard:
  • Early in its history, this Court held that it had no power to issue advisory opinions, Hayburn's Case, 2 Dall. 409 (1792), as interpreted in Muskrat v. United States, 219 U. S. 346, 351-353 (1911), and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. Oil Workers Unions v. Missouri, 361 U. S. 363, 367 (1960).

    To be cognizable in a federal court, a suit "must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937).

    However, "[m]oot questions require no answer." Missouri, Kansas & Texas R. Co. v. Ferris, 179 U. S. 602, 606 (1900). Mootness is a jurisdictional question because the Court "is not empowered to decide moot questions or abstract propositions," United States v. Alaska S. S. Co., 253 U. S. 113, 116 (1920), quoting California v. San Pablo & Tulare R. Co., 149 U. S. 308, 314 (1893); our impotence "to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." Liner v. Jafco, Inc., 375 U. S. 301, 306 n. 3 (1964). See also Powell v. McCormack, 395 U. S. 486, 496 n. 7 (1969).

    Even in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction. Henry v. Mississippi, 379 U. S. 443, 447 (1965). Liner v. Jafco, Inc., supra, at 304.

On the other hand, if it can be demonstrated that the bankster's withdrawal of the foreclosure is nothing more than a blatant attempt to abort the homeowner's challenge to the bankster's allegedly illegal or unconstitutional conduct and thereby evade judicial review, the case may not be considered moot.

In United States v. WT Grant Co., 345 US 629 (1953), the U.S Supreme Court made these comments in this regard:
  • Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897); Walling v. Helmerich & Payne, Inc., 323 U. S. 37 (1944); Hecht Co. v. Bowles, 321 U. S. 321 (1944).

    A controversy may remain to be settled in such circumstances, United States v. Aluminum Co. of America, 148 F. 2d 416, 448 (1945), e. g., a dispute over the legality of the challenged practices. Walling v. Helmerich & Payne, Inc., supra; Carpenters Union v. Labor Board, 341 U. S. 707, 715 (1951).

    The defendant is free to return to his old ways.[4] This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. United States v. Trans-Missouri Freight Assn., supra, at 309, 310.

    For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right, Labor Board v. General Motors Corp., 179 F. 2d 221 (1950). The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement.[5]

    The case may nevertheless be moot if the defendant can demonstrate that "there is no reasonable expectation that the wrong will be repeated."[6] The burden is a heavy one. Here the defendants told the court that the interlocks no longer existed and disclaimed any intention to revive them. Such a profession does not suffice to make a case moot although it is one of the factors to be considered in determining the appropriateness of granting an injunction against the now-discontinued acts.

    Along with its power to hear the case, the court's power to grant injunctive relief survives discontinuance of the illegal conduct. Hecht Co. v. Bowles, supra; Goshen Mfg. Co. v. Myers Mfg. Co., 242 U. S. 202 (1916).

    The purpose of an injunction is to prevent future violations, Swift & Co. v. United States, 276 U. S. 311, 326 (1928), and, of course, it can be utilized even without a showing of past wrongs. But the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.
See also, ACLUM v. Conference of Catholic Bishops, 705 F. 3d 44 (1st Cir. January 15, 2013) (discussing the 'voluntary cessation doctrine which provides for an exception to mootness):
  • The voluntary cessation exception "traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior." City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001).

    This is to avoid a manipulative litigant immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after. See Already, LLC v. Nike, Inc., ___ U.S. ___, ___, 133 S.Ct. 721, ___ L.Ed.2d ___, 2013 WL 85300, No. 11-982, slip op. at 4 (U.S. Jan. 9, 2013); Brown, 613 F.3d at 49; see also United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (noting that if a court declares the case moot, "[t]he defendant is free to return to his old ways").

    As the Supreme Court stated last term, "[s]uch ... maneuvers designed to insulate a decision from review ... must be viewed with a critical eye" and, as a result, "[t]he voluntary cessation of challenged conduct does not ordinarily render a case moot." Knox v. Serv. Emps. Int'l Union, Local 1000, ___ U.S. ___, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (citation omitted).

    However, even in circumstances where the voluntary cessation exception applies, a case may still be found moot if the defendant meets "the formidable burden[[9]] of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing United States v. Concentrated Phosphate Exp. Ass'n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007).
Go here for links to other cases discussing the stringent test in determining mootness in cases where the party alleged to have engaged in illegal conduct voluntarily ceases said conduct under threat of a pending lawsuit.

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