Editor's note: While the following blog posting from Washington attorney Scott Stafne (born and raised in Bettendorf, and online at ScottStafne.com) concerns Washington state jurisdiction, it is still highly instructive for all of us on how the courts contribute to foreclosure inequities, resulting in the destruction of not only the middle class but of property rights under our Constitution.
In Washington state, there are thousands of families having their homes fraudulently foreclosed on, most without due process from the courts - which are tasked with protecting due process under the state and federal constitutions. Recently an appeals judge in Washington ruled in favor of bypassing due process, further enabling nonjudicial foreclosures.
Nonjudicial foreclosures allow a lender to foreclose on a property without a court proceeding. The only way for an owner to fight this type of foreclosure is to file a lawsuit. Often, nonjudicial foreclosures occur without the participation, or even knowledge, of the owners(s). Only 32 states permit nonjudicial foreclosures. While Iowa and Illinois are not among them, Iowa has a provision known as "alternative nonjudicial foreclosure," which permits the owner(s) to request a nonjudicial foreclosure to avoid court (RCReader.com/y/foreclosure1).
It is important to understand these remedies that exist for lenders and how they impact property owners' rights, because legislators could eventually allow their use without us (Iowans and Illinoisans) knowing, especially if we are not paying attention. Most mortgages contain language that provides mortgagees' consent to these remedies, but sadly most buyers are clueless about what they are actually agreeing to.
The United States Constitution is the supreme law of the United States.
Each of its 50 states also has its own constitution by which the government and officials of each state are governed. Under our traditions of government, the meaning of the provisions of a constitution is determined by the judicial branch of government.
Judges often interpret constitutional provisions differently. But most start their interpretation with the language of the constitution. I read an MSNBC article recently (RCReader.com/y/foreclosure2) that stated: "Supreme Court Justice Antonin Scalia took the stage at Southern Methodist University Monday night and argued the Constitution is 'not a living document' and is 'dead, dead, dead.'
"Justice Scalia discussed how children would visit the Supreme Court and refer to the Constitution as a 'living document' but that the Constitution is, in fact, 'dead.' A staunch conservative and 'textualist,' Scalia believes the law must be taken literally and that the original meaning of the Constitution is the best way to interpret it."
Regardless of whether one believes that a constitution is a "dead" document or "living organic law," it is axiomatic that its interpretation must begin with the exact language of the constitution focused by the historical context in which it was written.
Unfortunately for us in the State of Washington, judges appear not inclined to consider constitutional language or historical context when construing the nature and extent of judicial responsibilities.
A decision (RCReader.com/y/foreclosure3) by Judge Michael J. Trickey of Division 1 of the Washington Court of Appeals (who ran unopposed for re-election in 2014 [RCReader.com/y/foreclosure4]) illustrates Washington courts' failure to meaningfully address the constitutional issues that come before them.
In this opinion, the court acknowledges that the constitution gives superior courts original jurisdiction over all cases involving title and possession of real estate. But then it goes on to state that this does not matter, because the nonjudicial foreclosures are based on a contractual "power of sale" clause. A "power of sale" is a provision in a mortgage that allows lenders to take both title and possession of land upon the borrower's default.
But Trickey's analysis is more than a little bit shallow because the Washington Territory had always prohibited enforcement of power-of-sale clauses right up until the time the constitution was enacted in 1889.
Our founders then enacted this prohibition as part of Washington's constitution to make sure the legislature could not allow Washingtonians to be subjected to such clauses in the future. Article II, section 28 of Washington's constitution states: "The legislature is prohibited from enacting any private or special laws in the following cases: ... (9) From giving effect to invalid deeds, wills, or other instruments."
The most notorious invalid deeds at the time this provision of Washington's constitution was written were deeds of trust that contained a power-of-sale clause. This provision was included in the constitution specifically to prevent such clauses from being enacted by the legislature.
The framers of Washington's constitution, almost a third of whom were lawyers, intentionally gave superior courts both the authority and responsibility to resolve disputes about the title and possession of land judicially. Indeed, our founders could not have been any clearer that all foreclosures in Washington were subject to the original jurisdiction of the superior courts and needed to be resolved by judges.
The first sentence of Article IV, section 6 as passed in 1889 stated: "The superior court shall have original jurisdiction in all cases in equity and in all cases at law which involve the title or possession of real property ... ."
Check out the court's opinion and our motion to reconsider (RCReader.com/y/foreclosure5). I do not believe it takes a lawyer to figure that our framers did not intend that people could have their homes taken from them without having access to the original jurisdiction of the superior court.
Read "The Story of Mortgage Law" written by J.H. Chapin and published in the Harvard Law Review in 1890 (RCReader.com/y/foreclosure6). The article documents that in 1889, when Washington's constitution was written, American equity law outlawed nonjudicial foreclosures of deeds of trust with power-of-sale clauses.
