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Foreclosure Process Violating The Due Process Rights

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By : Justin Okeefe    99 or more times read
In the states that permit non-judicial foreclosure via power of sale section in a feat of reliance, there the properties of homeowners are sold out without even giving an opportunity to defend them. In fact, the borrowers are responsible to convey the claim to the court against the property owner, which would then create a burden for the owners to see that the foreclosure does not carry out further.

In non-judicial foreclosure, the homeowners are given only a speck of notice, in spite of the court issuing an order to inform the owners about the removal of their property. State Laws in the non-judicial states; permit the property to be sold satisfactorily, only if the trustee pursues or follows the rules pertaining to the notice. But this issue contravenes the due process securities which are given to persons under the US Constitution and also, the Supreme Court initiated that the due process security takes place only while there is a situation to remove the property. There will be no regular due process security, as a promissory memo and an action of conviction are already executed between the homeowners and the lenders.

According to the court case Flagg Brothers, Supreme Court declared that, there will be no state action if the due process contravention takes place. State actions are not formed or created, if there is a mandatory sale of property in order to settle the disputes between the parties and this proves right in the issue of a trustee sale or sheriff auction of a property. However, for those owners, who are facing foreclosure can have a resistance in opposition to the non-judicial happenings in any two circumstances.

First – If government bureau is the foreclosing mortgagee. For example, if agencies such as HUD, VA or the FHA hold finance and if they litigate for foreclosure, then the state actor is concerned in the removal of the assets and borrowers should to be provided due process protection or security.

Second – If the state foreclosure requires a government official to contribute in the progression, then the property owners may be proficient to declare due process security. For example: in the Vermont’s strict foreclosure method, state action can decide several issues concerning to the clearance of the assets. And another court declared that state action may be created, even when the clerk is supposed to document a list of a property that’s facing foreclosure. Thus, property owners are able to declare due process security, based on the liability given to government bureaucrats.

However for borrowers, the contribution by state executives doesn’t generate due process security. In judicial states, facing foreclosure is not much complicated as compared to the non-judicial states. Banks initiate foreclosure on a person with no proof that he owns a loan and they create a strong case even to take back the house. In the foreclosure auction, Government act would give more protections to the borrowers compared to the level of protection given by the voracious events of banks.
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