1983 cases involve a party that can be called a "state actor". Numerous courts have ruled that attorneys can fall into that category, but not always. Generally, you must show 1) that your Constitutional rights were violated, and 2) that the violating party acted under color of state law---but--
" A private party is considered a state actor if the alleged deprivation was "caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the tate is responsible." Id. at 937. A state's "[m]ere approval of or acquiescence in the initiatives of a private party" does not amount to state action." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Sabri v. Whittier Alliance, (8th Cir. 2016).
Krafty,
I don't have the competence necessary to bring a civil action under 1983. Way to vague with contradicting decisions on both sides - are they acting under the color of law, was it a legally protected right? That's why I enjoy the absence of ambiguity in contract law.
As we've all discovered, judges are contrary creatures likely to jump to their own conclusions even in the presence of well-settled law. An effort of persuasion on my part relying on reasoning and logic in an ambiguous area of the law would be precarious at best. More likely I'd be lunch.
My interest is in filing a complaints under18 USC § 242 at the state and the federal level.
California Supreme Court has ruled foreclosure is solely a matter of contract and the state merely regulates procedure. The argument there is that a contract is a legally enforceable agreement so the two aren't really separable (nice try, Pontius Pilate). A bank can't foreclose without the state backing them. If the banks use the semblance of legal authority to harm consumers and the state let's that happen then the state should incure liability.
What I like about civil rights law so far is it seems like a good fit for wrongful foreclosure since this issue is the deprivation of property when the wrongdoer has no right to the property. And what I like about for non-judicial is that civil rights law appears to incorporate the protection of constitutional rights including the 8th amendment's protection from cruel and unusual treatment.
My admittedly meager understanding is that civil rights law (242) extends the right of protection from mistreatment by government entities to anyone acting under the color of law.
It's personally objectionable that the defendants feel entitled to use terrorist style methods to unlawfully deprive me of property but it's objectionable in general and it should be. What kind of banana republic would place in the hands of debt collectors (?!) the unbridled use of so formidable a means of persuasion? How did this human rights violation slip past?
The knee-jerk response is that the trustee sale is an integral part of non judicial mortgage loan agreement but there is an important distinction. A foreclosure sale is not intended to be a mechanism in debt collection.
To place it in perspective:
It's lawful in some states to put a prisoner to death by lethal injection, but it's not lawful to repeatedly threaten a prisoner with lethal injection going so far as to strap them down and put a needle in their arm before calling it off in an effort to extract money or property from them. That would be considered
torture or cruel and unusual treatment. Then using that fear as a means to an unlawful end would be extortion. The servicer's purported contractual right to the collateral doesn't extend to immunity to criminal conduct or at least it shouldn't.
This is a issue that should be
brought to the attention of the Justice Department. The visceral nature of it might override any color of law ambiguity..Considering that repeated phone calls are now regulated, something needs to be done to protect consumers from this foolishness. In the unlikely event my complaint catches the attention of some bored bureaucrat/investigator it might make my servicer uncomfortable...
