Foreclosure Warning: You are not logged in. Your IP address will be publicly visible if you make any edits. If you log in or create an account, your edits will be attributed to your username, along with other benefits.Anti-spam check. Do not fill this in! ===Defenses=== In some US states, particularly those where only judicial foreclosure is available, the constitutional issue of [[due process]] has affected the ability of some lenders to foreclose. In Ohio, the US federal district court for the Northern District of Ohio has dismissed numerous foreclosure actions by lenders because of the inability of the alleged lender to prove that they are the real party in interest.<ref>[http://pubcit.typepad.com/clpblog/files/ForeclosureDismissal-Boyko.pdf JUDGE CHRISTOPHER A. BOYKO, “UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO (EASTERN DIVISION)”, filed 10-31-2007] {{webarchive|url=https://web.archive.org/web/20080909210140/http://pubcit.typepad.com/clpblog/files/ForeclosureDismissal-Boyko.pdf |date=2008-09-09 }} Retrieved July 12, 2008</ref> The same happened in a Colorado district court case in June 2008.<ref>{{cite news |first= Rhonda|last=Moore |title= The foreclosure fight is on |url=http://www.dcnewspress.com/site/tab11.cfm?newsid=19790666&BRD=2713&PAG=461&dept_id=559196&rfi=6|publisher=Douglas County News-Press|date=2008-06-20 |access-date=2008-07-12 }}</ref><ref>Block Colorado Foreclosure Blog www.blockcoloradoforeclosure.com</ref> In contrast, in six [[United States courts of appeals|federal judicial circuits]] and the majority of nonjudicial foreclosure states (like California), due process has already been judicially determined to be a frivolous defense.<ref>''Apao v. Bank of New York'', 324 F.3d 1091 (9th Cir. 2003).</ref> The entire point of nonjudicial foreclosure is that there is no [[state actor]] (i.e., a court) involved.<ref name="garfinkle">''Garfinkle v. Superior Court'', [http://online.ceb.com/CalCases/C3/21C3d268.htm 21 Cal. 3d 268] (1978). This was a decision of the [[Supreme Court of California]] in favor of [[Wells Fargo]].</ref> The constitutional right of due process protects people only from violations of their civil rights by state actors, not private actors. (The involvement of the county clerk or recorder in recording the necessary documents has been held to be insufficient to invoke due process, since they are required by statute to record all documents presented that meet minimum formatting requirements and are denied the discretion to decide whether a particular foreclosure should proceed.) A further rationale is that under the principle of [[freedom of contract]], if debtors wish to enjoy the additional protection of the formalities of judicial foreclosure, it is their burden to find a lender willing to provide a loan secured by a traditional conventional mortgage instead of a deed of trust with a power of sale. Courts have also rejected as frivolous the argument that the mere legislative act of authorizing or regulating the nonjudicial foreclosure process thereby transforms the process itself into state action.<ref name="garfinkle" /> In turn, since there is no right to due process in nonjudicial foreclosure, it has been held that it is irrelevant whether the borrower had actual notice (i.e., subjective awareness) of the foreclosure, as long as the foreclosure trustee performed the tasks prescribed by statute in an attempt to give notice.<ref>''I.E. Associates v. Safeco Title Ins. Co.'', [http://online.ceb.com/CalCases/C3/39C3d281.htm 39 Cal. 3d 281] {{webarchive|url=https://web.archive.org/web/20130906191724/http://online.ceb.com/CalCases/C3/39C3d281.htm |date=2013-09-06 }} (1985).</ref> Summary: Please note that all contributions to Christianpedia may be edited, altered, or removed by other contributors. If you do not want your writing to be edited mercilessly, then do not submit it here. You are also promising us that you wrote this yourself, or copied it from a public domain or similar free resource (see Christianpedia:Copyrights for details). Do not submit copyrighted work without permission! Cancel Editing help (opens in new window) Discuss this page