Challenging Constitutional Standing to Foreclose & "Subject Matter Jurisdiction" of the Court


Article III of the Constitution of the United States as defined by the U.S. Supreme Court has long ago established a constitutional, irreducible, minimum set of requirements for a party in a genuine dispute to establish that it has the Standing to redress a claimed “Injury In Fact” before it can bring a dispute before any court.

Without the existence of Standing all courts in the land must acknowledge that the court has no subject matter jurisdiction to hear any merits of a case and that it has no choice whatsoever but to dismiss the subject action. In Borrower’s cases, this subject action is the claim that the foreclosing party is the party in interest that has the “right” to foreclose on a Borrower’s property and that it is claiming and proving that it has been injured by the Borrower enabling its right to foreclose

The three requirements to prove Standing in a case involving Judicial Foreclosure state foreclosure actions in which the foreclosing party is the Plaintiff and the Borrower is the defendant

1. The foreclosing party is the Plaintiff and it must claim and prove in its lawsuit against the Borrower, who is the defendant, that it has sustained an “Injury in Fact” due to the actions of the Borrower and that it is demonstrating that its evidence is “concrete and particularized”.

The Borrower Defendant’s “only burden” is that he must deny ever having been in default with this Plaintiff in this case. This will be true in nearly every case.

2. This injury must be have been proven by the foreclosing party with “concrete and particularized” evidence to be fairly traceable to the foreclosed party with concrete and particularized evidence.

The Defendant Borrower is trying to void and set aside the foreclosure sale that the foreclosing party claims were legal and that it has already happened properly although it has never yet been presented in any court.

I do not use the words lender or bank because I have never seen any party in a foreclosure trial ever even try to prove a Lender’s status. So, whenever reading my writings you will see me use the term “foreclosing party” instead of giving this entity any higher status before the judge.

Your foreclosing party has only one possible injury it can claim. That the foreclosing party used its’ own money to fund the closing of the loan, or used its’ own money to purchase the alleged subject Promissory Note and did not get paid back you, the mortgagor.

I have never seen the foreclosing party ever claim or state that it had suffered an “Injury in Fact”, nor ever described one. I have never seen the foreclosing party claim to be the Holder in Due Course.

The United States Constitution guarantees that the issue of standing may be raised at any time, even after appeal.

(Article III of the U.S. Constitution) (Lacey v. BAC Home Loans Servicing, LP, 480 B.R. 13 (2012), United States Bankruptcy Court, D. Massachusetts, Bankruptcy No. 10-19903-JNF, Adversary No. 12-1249) (Ibanez, 458 Mass. At 651, 941 N.E.2d 40) (Bailey v. Wells Fargo Bank, NA (In re Bailey), 468 B.R. 464 (Bankr. D.Mass. 2012)) (Ball v. Bank of New York, No. 4:12-CV-0144-NKL, 2012 WL 6645695, at *2 (W.D. Mo. Dec. 20, 2012) (Williams v. Kimes, 996 S.W.2d 43 (Mo. 1999))

Standing is a jurisdictional issue antecedent to the right to relief. Missouri Courts and Federal Courts are well settled on the matter. There is no court discretion. If Standing has not been proved by the offending party, then the court has no jurisdiction to hear the merits of the case.

Article III Standing: Standing is a requirement in all state and federal courts in the United States. This requirement gives a party the “right to make a legal claim or seek judicial enforcement of a duty or right. Standing requirements for the federal courts are uniform and based upon constitutional requirements. For a lender to foreclose on a debtor’s property, the lender must meet certain substantive constitutional requirements established by the doctrine of standing and prudential limitations required by rules of civil procedure. Courts have stated that “[T]he concept of standing subsumes a blend of constitutional requirements and prudential considerations.” Importantly, courts have recognized that failure to satisfy all standing requirements may be dispositive in cases involving foreclosures. (dispositive: fail to win)

The law of standing has its roots in Article III’s case and controversy requirement. The U.S. Supreme Court has established a three-part test for standing. The “irreducible constitutional minimum requirements of standing” requires the plaintiff to establish:

First… an “injury in fact”-an invasion of a legally protected interest which is a concrete and particularized, and (b) “actual or imminent,” not “conjectural” or “hypothetical.”

Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly traceable to the challenged action of the foreclosing party and not… the result of the independent action of some third party not before the court”.

Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision” from the court. (Made whole. Get the house and maybe deficiency)

Because standing is a “threshold question,” (Think of the groom carrying the bride across the threshold begins the marriage) courts have stated that “a defect in standing cannot be waived; it must be raised, either by the parties or by the court, sua sponte, (Sua Sponte means that the court is required to do it whenever it becomes apparent). Standing is a threshold question based on the “case or controversy” requirement of Article III and cannot be waived. Without standing, a party is not properly before the court to advance a cause of action. (The Borrowers have to make them prove that the had the right to collect from the Borrower because the foreclosing party had money in the Borrower’s loan). This should always be true and would have before 1999, but today I believe it is never true.

(“That in “United States v. AVX Corp., 962 F.2d 108, 116 n.7 (1st Cir. 1992) (emphasis added); see also Pershing Park Villas Homeowners Assn’ n v United Pac. Ins Co., 219 F.3d 895, 899-900 (9th Cir. 2000) (noting that standing is a threshold question based on the “case or controversy’ requirement of Article III” of the Constitution and cannot be waived.).

See Farm Bureau Ins. Co. of Ark. V Running M Farms, Inc. 237 S.W.3d 32, 36 (Ark. 2006) (” It is fundamental in American jurisprudence that in order to bring a lawsuit against an opposing party, one must have the standing to do so. Without standing, a party is not properly before the court to advance a cause of action”) see also Robert T. Mowrey et al., Issues Arising in Connection with the Foreclosure or Other Enforcement of the Securitized Loan, in MORTGAGE AND ASSET-BACKED SECURITIES LITIGATION HANDBOOK, supra note 45, § 5:99, § 5:110 (providing a general overview of standing relating to securitization litigation).

That “without evidence demonstrating the circumstances under which it received an interest in the note and mortgage, a Foreclosing Party cannot establish itself as the holder.” Today the term is Holder in Due Course whether some old judge that never reads anything thinks so or not)

(Everhome Mortg. Co. v. Rowland 10th Dist. No. 07AP-615, 2008-Ohio-1282, at ¶15)

This whole issue is not about the right to foreclose, but instead, it is about the right to collect money.

The Borrowers must contend they are the rightful owners of the Property and that they have never been in default with this Foreclosing Party in this case.

If the Plaintiff or any of its vendors have collected money from the Borrowers and now cannot prove standing then it is the Borrowers who are the ones who have been injured in fact. It is the Borrowers because they were deceived into paying money to the Imposter foreclosing party and it’s collections agents. Violations of the Federal Debt Collections Act (FDCPA), and the UCC code regulating fraudulent contracts probably have been committed.

(JESINOSKI ET UX. v. COUNTRYWIDE HOME LOANS, INC.; SUP. CT. US., ET AL. CERTIORARI TO THE US Ct. APP. EIGHTH CIRC. No. 13-684. Argued November 4, 2014-Decided January 13, 2015)

There has been no ruling that any party associated with the theft of this home has voluntarily proven Standing nor has been ordered by the court to do so, therefore the court did not yet have subject matter jurisdiction, proving the foreclosure was void at its onset and must be dismissed.

The Borrowers have properly pleaded that they were not in default on any Promissory Notes to any entity mentioned herein and specifically not to the foreclosing party or any other 3rd party Strangers to the contact.

The same glaring deficiencies apply to any alleged REMIC TRUST and its alleged beneficiaries without which a Trustee cannot even exist. There is absolutely no proof whatsoever that either the Trustee nor the REMIC Trust except for assertions from attorneys including sly and misleading assertions.

(In RE: MERS; United States Appeals Court Ninth Circuit)(See Fed. R. CIV. P. 12(h) (3): “If the court determines at any time that it lacks subject matter jurisdiction over the foreclosure, the court must dismiss the action” (of foreclosure).

If Consideration has not been proven to have come from a foreclosing party, then the question is “where did it come from?”. Without a money trail demonstrating the foreclosing party paid to get ownership of the loan, the Borrower has a right to challenge where the funding came from. The Borrower must demand to know, where the purchase and sale contracts are, where the copies of wires or cashier’s checks are, where the Proof of Delivery is, where the original, unaltered, and safely kept alleged Promissory Note is.

Regarding Defendants rights to challenge assignments:

In re Walter W. Lacey v. BAC Home Loans Servicing, LP et al, U.S. Bankruptcy Court, D. Massachusetts, (2012).: stated:

“This Court concludes that the Debtor has the standing to challenge the validity of the foreclosure sale to the extent that there is an issue as to whether the entity conducting the foreclosure sale was the actual holder of the mortgage by way of assignment at the time of the notice and sale. See Ibanez, 458 Mass. At 651, 941 N.E.2d 40. (“there must be proof that the foreclosure was carried out by a party that itself held the mortgage… the foreclosing entity must hold the mortgage at the time of the notice and sale in order accurately to identify itself as the present holder in the notice and in order to have authority to foreclose under the power of sale… “). (See also Bailey v. Wells Fargo Bank, NA (In re Bailey), 468 B.R. 464 (Bankr. D.Mass. 2012) (holding that the debtor had standing because her argument was not based on the breach of an underlying contract to which she was not a party; instead, her argument was aimed at the ownership of the mortgage at the time it was purportedly assigned).

However, “the question of whether [a mortgagor has] (BORROWER) standing to challenge [an] assignment is different from the question of whether [he has] standing to challenge the foreclosure on the basis that [the foreclosing entity] did not properly hold the mortgage at the time of the foreclosure.” Wenzel, 841 F.Supp.2d at 479 n. 16. A number of decisions have held that mortgagors have the standing to challenge a foreclosure sale as void due to an allegedly invalid claim of legal ownership and possession of the alleged Promissory Note. See in re Lacey, Bankr.No. 10-19903-JNF, 2012 WL 2872050, at *16-17 (Bankr.D.Mass. July 12, 2012); Rosa v. Mortg. Elec. Sys. Inc., 821 F.Supp.2d 423, 429 n. 5 (D.Mass.2011).

The Massachusetts Supreme Judicial Court has held that “[a]ny effort to foreclose by a party lacking ‘jurisdiction and authority’ to carry out a foreclosure… is void.” Ibanez, 941 N.E.2d at 50. A wrongful foreclosure action may be brought to set aside a void foreclosure. See Rogers, 47 N.E. at 604 (allowing mortgagor in tort action who was foreclosed upon in a void foreclosure to elect between full damages or recovering the property). Consequently, a mortgagor may bring a wrongful foreclosure action to set aside a foreclosure conducted by an entity that was never a person entitled to enforce.

Mortgagors challenging foreclosure sales that are void due to invalid claims have standing to do so because they have demonstrated “a concrete and particularized injury in fact, a causal connection that permits tracing the claimed injury to the defendants’ actions, and a likelihood that prevailing in the action will afford some redress for the injury.” Antilles Cement Corp. v. Fortuno, 670 F.3d 310, 317 (1st Cir.2012) (quoting Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 467 (1st Cir.2009)). In In re Bailey, Bankruptcy judge Boroff succinctly stated why mortgagors such as Butler meet the standing requirements:

“The injury to the [mortgagor] is the purported termination of her equity of redemption in the Property by a party who had no authority to foreclose that equity of redemption. If [the foreclosure entity], as is the allegedly invalid foreclosure by [the foreclosing entity] that constitutes the [mortgagor’s] claimed injury. Should the Court determine that the Foreclosure Sale is void, the [mortgagor] will retain the equity of redemption -an interest in the property that cannot be lightly disregarded.”

In re Bailey, 468 B.R. at 475-76. “To reject any argument which pertains to “the validity of claims” out of hand would eviscerate the holding of Ibanez and deprive mortgagors of the most valuable remedy they have to protect their equity of redemption.

(See Tenney v The Certificateholders of Citigroup Mortgage Loan Trust et al., APP. Ct. Kansas: Case No. 110.359; holding that Standing may be challenged at any time.)

That the right to a tribunal free from bias and prejudice is based on the Due Process Clause. Should a judge issue an order after he has been disqualified by law, and if the party has been denied of any of his/her property, then the judge has engaged in the crime of interference with interstate commerce; the judge has acted in his/her personal capacity and not in the judge’s judicial capacity.

The party foreclosing in your case has never claimed an injury in fact. They have never claimed that they lost money because you did not pay them money you borrowed from them. You didn’t receive money from this party and I can prove that to you. But, even if you had, this party must claim it in words. They never claim an “Injury in Fact”. They never claim to have given you money. That is because they didn’t give you money. Someone did, but it is not the party threatening to foreclose on you. We can help you with this.

You must raise this issue to win. If you don’t your court cannot rule in your favor in your case. It is called disputing the claim. You must dispute all claims. It is vital that you object. You know like on TV, “Objection your honor”.