We’ve talked about this before – the banks must prove that
they are the proper party to be suing a borrower in a foreclosure action.
Generally speaking, this is called “standing”. It used to
be that the bank must show how they acquired a borrower’s loan,
typically through possession of the note and mortgage. A good defense
attorney could hold them to task and make them prove every step of the
way. And oftentimes, a lack of proper evidence to prove how a borrower’s
loan went from company A to company B resulted in the foreclosure case
being dismissed. However, recent case law has changed the landscape to
the borrower’s detriment.
A recent case out of the 4th District Court of Appeals titled
Ortiz v. PNC National Bank Association, loosened the requirements for a bank to prove standing. In a general
sense, no longer does a bank need to prove how they acquired the loan
– they simply need to have a copy of the note and mortgage attached
to their foreclosure complaint. So long as the copy of the note and mortgage
attached to the complaint matches the actual original note and mortgage
at the time of the parties go to trial, the courts have held that is sufficient
evidence to prove standing. It creates a rebuttable presumption that the
bank that is foreclosing against you is the proper party in the first
place. In a sense, this swaps the responsibilities of the bank and the borrower.
In most lawsuits, the person suing has the burden to prove their case.
In a foreclosure action, the bank must prove there is a contract (the
note and mortgage), that the bank is the proper party to be suing on that
contract (standing), that there was a breach of the terms of the contract
(a default), and that the bank is entitled to a recovery (damages). The recent
Ortiz case has shifted the burden to proving standing from the bank to the borrower.
If a borrower wants to argue that the bank is not the proper entity suing
them, it’s the borrower’s burden to prove that it’s
the wrong bank, as oppose to the bank’s burden to prove that they
are the right party. This shift requires a new approach to dealing with
the banks and disproving their foreclosure case. The typical arguments
you often hear regarding MERS, who owns the Note, and proving standing
aren’t as strong as they used to be.
But that’s not to say that all hope is lost. When the courts make
it easier for the banks, it just means that a skilled defense attorney
will find other ways to break apart the bank’s case. When you’re
facing a foreclosure action, the help of seasoned attorneys who know the
law and know how to use the law to your advantage is paramount. If you’re
dealing with a foreclosure, you don’t have to go through it alone.
Just because it’s easy for the banks doesn’t mean it has to
be hard for you. Loan Lawyers is a group of dedicated attorneys who use
their collective knowledge to help keep you in your home. Reach out to
us today to set up an
and let us fight for you