It is a major fight in the United States in which the COURTS and JUSTICE System seem all too submissive to the Bank's authority. Unfortunately, from my experience, it makes no difference that a Pro Se litigant opposing the CRIMINAL Activity by the BANKING system, has any credibility ... merely because 'We are not part of the Bar.' Very sad and very true.
It is the Banking system which HIRES attorney / legal firms to commit 'Fraud Upon the Court' which conveniently insulates 'them' allowing the 'Officers of the Court' to 'certify the authenticity of a debt' which in our case; has NEVER EXISTED or neither have been engaged in a contract with CITIBANK --- while there remains NOTHING in the PUBLIC RECORD showing any assignment where CITIBANK are the 'Real Parties in Interest.' Yet, the Courts allow the attorneys to stand in open court and testify to the authenticity of a document that is clearly forged ... and get away with it ... even over the STRENUOUS OBJECTIONS of the defendants, who have already asked for VERIFICATION & VALIDATION of the DEBT --- and IGNORED.
While our property was originally purchased in 2000 and later refinanced six years later with a totally different company, it was CITIBANK / CITMORTGAGE who came to claim the DEBT by submitting a declaration as a 'Debt Collector' through their attorneys, Aronowitz & Mecklenberg through the United States Mail with a DEED OF TRUST from Decision One - with their NAME replacing Decision One's - although --- it is a COPY of the DEED OF TRUST that was FILED with the Arapahoe County Clerk & Recorder --- and yet, the Court / Arapahoe County Public Trustee ALLOW the Document to be used in Court proceedings ... which DO NOT ALLOW the Defendants a chance to RAISE the authenticity of the 'CLAIM' because as the courts put it: "This is NOT an ADVERSARIAL Proceeding!"
The ONLY Chance we have is in: GETTING THE WORD OUT --- that our Justice System is being submissive to the Banks --- and so are the authorities like the Colorado Attorney General, The Arapahoe County Sheriff's Office, the 18th District Attorney's Office, The Colorado Senators and Representatives and every SOUL who has been NOTIFIED with CERTIFIED RETURN RECEIPTS - including the NATIONAL Agencies, including the F.B.I., The O.I.P., the O.C.C. and just about anyone else who will listen ... and doesn't!
The HOPE is just this: 'THE TRUTH IS THE TRUTH" and it SHALL come out eventually, and with the recent 'Tide' turning against the Banks with the Government Suing them for fraudulent activities ... it's bound to make a difference, when you 'Follow the Paper Trail' and the evidence --- that the BANKS have committed FRAUD against the AMERICAN people, and for the most part are getting away with it everyday ... one SOUL at a time.
I plan on making a difference in this matter with the Story that is UNFOLDING --- because it can only make sense, when you look at the 'Chronological Events' and know ... my wife has NEVER had any CONTRACT with the BANK and there is NOTHING in the PUBLIC RECORD to prove otherwise - yet they can come in and STEAL from YOU ... because their 'Strong Arm Attorneys' are 'MEMBERS of the BAR' and can MANIPULATE the 'LAW' by the favor of the Courts who 'Lick' their boots.
And for the RECORD - there is NOTHING HERE that IS NOT THE TRUTH for those willing to see and hear, and to stand up for your fellow man. You see, they've been trying to incarcerate me for standing in their way 'Civilly' while I am fighting to protect our property rights from a company who is 'Playing an Economic Game' with YOUR rights in the US, Colorado and YOUR State. IT IS HAPPENING - and YOU should start banding together as a 'People' to make sure that the authorities YOU have elected are FOLLOWING YOUR CONSTITUTIONAL Rights of 'LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS!" I can tell you right now --- that they are not ... and the CHANGE that is NEEDED will be the same change that came in the FRENCH REVOLUTION in the 1700's - The People are getting tired of being SCREWED out of their INHERITENCE in this COUNTRY - I know I AM!
E. COLORADO FORECLOSURE LAW VIOLATES PROCEDURAL DUE PROCESS AND EQUAL PROTECTION
1. PLAINTIFFS WERE DENIED PROCEDURAL DUE PROCESS
Under color of state law—The Colorado Foreclosure Law, plaintiffs were foreclosed. The Foreclosure law provides for a Public Trustee who is an agent of the state administering a process that provides inadequate due process to homeowners.
The rule 120 hearing is discriminatory against homeowners who have no right to a jury and no right to appeal while the Colorado justice system provides a jury and right to appeal in FED action in Colorado for tenants who can appeal from a negative judgement in those proceedings.
Foreclosure of a deed of trust by public trustee's sale under the applicable statutes is activated by a power of sale in the deed of trust. Plaintiffs were subjected to a rule 120 hearing limited to two issues:
a. the debtor is in default and, action collateral to such hearing is necessary to resolve all other issues. (cite)
b. To establish the status of the debtor with respect to military service.(cite)
Borrowers who raise arguments that the Rule 120 hearing won't address, can file a separate civil case. But those who go that route are quickly hamstrung by a requirement to post a "supersedeas" bond in the amount of 125% of the debt.
Under rule 120 hearing (a non-judicial hearing) there can be no appeal, nor a right to a jury trial. The homeowner has no right to raise affirmative defenses. Standing is presumed in favor of the lender upon its averments by the lender or its attorney that the lender is a real party in interest. But, judges routinely accept less than certifiable proof to determine who is “the real party in interest”. A copy of the original deed of trust and certificate of qualified holder which is a form generated by the lender’s attorney without a notarized assignment as proof which brings us to the standard of proof that should be employed in the Rule 120 hearing to determine the lender's claim as a holder of the mortgage..
In PLYMOUTH CAPITAL CO. v. DISTRICT COURT 955 P.2d 1014 (1998)
the court said:
“the scope and purpose of a Rule 120 hearing is very narrow: the trial court must determine whether there is a reasonable probability that a default or other circumstance authorizing exercise of a power of sale has occurred. The test is whether "considering all relevant evidence, there is a reasonable probability that a default exists."
Beyond that narrow determination that a reasonable probability that there was a default, the court does not concern itself of any relevant evidence bearing on the lender's standing as the real party in interest. In Plaintiffs' Response in Opposition to the Motion to Dismiss p12, lns 13-22, plaintiffs said:
The Original holder of the Mortgage and Deed of Trust of plaintiffs was Decision One At the rule 120 hearing, CITIMORTGAGE never produced proof of the assignment from Decision One to CITIMORTGAGE/CITIFINANCIAL of its rights under the mortgage and Deed of Trust in spite of our strenuous objections at the hearing. What CITIMORTGAGE did send to plaintiffs was an altered copy of the original Deed of Trust with their name in the upper left hand corner. [See Exhibit____, item 1 and 2] It was obvious that they made a copy of the original Deed of Trust and replaced it with the name of CITIFINANCIAL. Subsequent to the adverse ruling which did not properly allow the issue of standing which was clearly required by the ruling in Goodwin v. District Court, 779 P.2d 837 (Colo. 1989) Citimortgage foreclosed on plaintiffs.
We objected in the federal court to the sub-standard level of proof that the court allowed CitiMortgage to submit in the Rule 120 hearing.
At pg 13m lns 1-17 plaintiffs said:
The abuses cited by plaintiff in this case regarding a rule 120 hearing are not the exception but the rule. At least two other cases have surfaced raising the same issues—Prater et al vs Bank of New York Mellon et al and BRUCE C. McDONALD vs FEDERAL HOME LOAN MORTAGE CORPORATION Case Number 2010cv6. In the latter case the defendants failed to answer, and the court found that the proof was sufficient to render a verdict against defendant and to quiet title in favor of plaintiff. In that case as in this case the law firm representing the lender in the rule 120 hearing was Aronowitz & Mecklenburg. In both cases the issue was based on the false documents submitted by the law firm to show that the lenders were the real parties in interest. Law firms like Aronowitz & Mecklenburg need only produce copies of those documents accompanied by a “certification of qualified holder,” a document generated by the law firm attesting that the bank has the right to foreclose on the homeowner. Plaintiffs questions, as did the plaintiff Bruce C. McDonald, “How much due diligence did Aronowitz & Meck-lenburg do to verify which bank actually owns the loan.”
What is starting to emerge from these three cases is a pervasive pattern of deception being practiced by the lenders and their respective attorneys like Aronowitz & Mecklenburg, in the various counties in Colorado as well as venues across this nation; and, a pattern of misfeasance on the part of the Public Trustees who are all too willing to accept less than certifiable proof that the lender is the “real party in interest” as the lien-holder. [B,U added]
The 14th Amendment of the United States Constitution states:
... [N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Thus, the Constitution guarantees the protection of fundamental rights of life, liberty, or property from a denial of due process and equal protection of the laws.
The Supreme Court of Hawaii in STATE v. KOTIS, No 18823(1999) said:
The seminal United States Supreme Court decision addressing the due process considerations relevant to the determination of the appropriate burden of proof is Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The Addington Court considered “what standard of proof [was] required by the Fourteenth Amendment to the Constitution in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital.” The Addington court noted that the standard of proof by clear and convincing evidence had been required “in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant” because “[t]he interests at stake in those cases are deemed to be more substantial than mere loss of money
in Sheehan v. Sullivan (1899) 126 Cal. 189, 193, 58 P 543, the court said "clear and convincing evidence" is evidence "so clear as to leave no substantial doubt" and "sufficiently strong to command the unhesitating assent of even' reasonable mind."
In USLegal.com further states that:
This higher burden is generally employed when the alleged offense has special elements to establish, such as in a claim for fraud, for a lost will of inheritance, or when family members wish to withdraw life support from a loved one. In these and other cases, the stakes at risk are high and the defending party serves to lose a substantial benefit, property, (or especially) personal or fundamental liberty such as those protected under the First Amendment.
Because the Rule 120 hearing involves a property interest which is protected by the due process clause of the 14th and 5th Amendment, the standard of proof before a person’s property is taken should be by “clear and convincing proof” which should extend to the determination of who is the real party in interest with standing to foreclose. But the Public Trustee in the Rule 120 hearing only requires that the foreclosing Lender present a copy of the Trust Deed and an Affidavit, a form generated by the Lender or its' attorney that the lender is the “real party in interest” without even requiring that it be attested to under penalty of perjury. No notarized assignment by the original lender to the foreclosing lender need be provided. When it comes to a claim against the property there should be a heightened burden of proof.
In Colorado, a party filing a claim of adverse possession must establish through “clear and convincing evidence” that the possession is actual, adverse, hostile, under claim of right, exclusive, and uninterrupted for eighteen consecutive years with a good faith belief that the possessor is the actual owner of the property. Colo. Rev. Stat. § 38-41-101 (2010)
The standard of proof which is now employed in a rule 120 hearing is NOT clear and convincing evidence. The standard of proof should be no less than that provided in a claims of adverse possession and as commanded in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) where the standard of proof involving a fundamental right under the 14th Amendment is “clear and convincing evidence.”
In light of Goodwin v. District Court, 779 P.2d 837 (Colo. 1989) which held that a real party in interest defense must be allowed in a Rule 120 hearing, a “clear and convincing” standard of proof MUST be employed.
The Due Process Clause does prevent the deprivation of liberty or property upon application of a standard of proof too lax to make reasonable assurance of accurate fact finding. Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); Thus, "[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to 'instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication."' Addington v. Texas, 441 U.S. 418,423 (1979)
Plaintiffs are not limited from raising this argument in support of their claim that they were denied due process in the Rule 120 hearing, for as the court in Lebron vs National Passenger Car Railway, 513 U.S. 374 , at pgs 378-383 said:
Our traditional rule is that “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Therefore this due process argument is properly before the court.
In LINDSEY V. NORMET, 405 U. S. 56 (1972) the court said:
This Court has recognized that, if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review, (cites)
Conversely, if a full and fair trial on the merits is NOT provided, the Due Process Clause of the Fourteenth Amendment requires a State to provide appellate review. The Rule 120 hearing does not provide a full and fair hearing, nor does it provide appellate review. The state can deny one or the other but cannot deny both.
The inclusion by the Court of the above statement that “ a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review must be read and analyzed in the context of the procedures in Lindsey itself. The complaint in Lindsey alleged that the tenant was limited in the defenses it could set up in the procedure. If the FED action itself in Lindsey was a full and fair hearing which included issues the tenant could have brought in a separate action then there was no requirement for the state to provide appellate review. But, if the FED action in Lindsey was a summary proceeding without appellate review, then plaintiffs believe that the Supreme Court would have held that the summary proceedings would have required the State in the Oregon FED action to provide appellate review to satisfy the Due Process Clause of the 14th Amendment otherwise it would have had no relevance to the case itself and no need to include it.
1. PLAINTIFFS WERE DENIED EQUAL PROTECTION OF THE LAW
In Lindsey, ID at p. 64 the court stated the FED procedure:
The Oregon Forcible Entry and Wrongful Detainer Statute establishes a procedure intended to insure that any entry upon real property "shall be made in a peaceable manner and without force." § 105.105. A landlord may bring an action for possession whenever the tenant has failed to pay rent within 10 days of its due date, when the tenant is holding contrary to some other covenant in a lease, and whenever the landlord has terminated the rental arrangement by proper notice and the tenant remains in possession after the expiration date specified in the notice. § 105.115. Service of the complaint on the tenant must be not less than two nor more than four days before the trial date, § 105.135; a tenant may obtain a two-day continuance, but grant of a longer continuance is conditioned on a tenant's posting security for the payment of any rent that may accrue, if the plaintiff ultimately prevails, during the period of the continuance. § 105.140. The suit may be tried to either a judge or a jury, and the only issue is whether the allegations of the complaint are true, §§ 105.145, 105.150. The only award that a plaintiff may recover is restitution of possession. § 105.155. A defendant who loses such a suit may appeal only if he obtains two sureties who will provide security for the payment to the plaintiff, if the defendant ultimately loses on appeal, of twice the amount.
The FED action in Lindsey like the FED action in Colorado, do have a right to appeal as well as a right to a jury trial even though the actions are summary with a right to file a separate action to determine other issues that cannot be addressed in such summary proceedings. Why isn’t a Homeowner in a Rule 120 foreclosure proceeding offered the same protections as the Colorado FED action or Oregon FED action?
Mason Ramsey - Reuben Nieves (Research and Composition)
