The argument to oppose the "free house" nonsense is actually a simple concept in theory--follow the precedent in CA Supreme Court:
scholar.google.com
" The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security. "
Of course, CA court rulings are not binding on other states' courts, but the concept of standing exists in every state. And this case ruling goes on to say:
" It is no mere "procedural nicety," from a contractual point of view, to insist that only those with authority to foreclose on a borrower be permitted to do so. "
"The logic of defendants' no-prejudice argument implies that anyone, even a stranger to the debt, could declare a default and order a trustee's sale — and the borrower would be left with no recourse because, after all, he or she owed the debt to someone, though not to the foreclosing entity. This would be an "odd result" indeed. (Reinagel, supra, 735 F.3d at p. 225.) As a district court observed in rejecting the no-prejudice argument, "
anks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank's deed of trust." (Miller v. Homecomings Financial, LLC (S.D.Tex. 2012) 881 F.Supp.2d 825, 832.)"
"Defendants note correctly that a plaintiff in Yvanova's position, having suffered an allegedly unauthorized nonjudicial foreclosure of her home, need not now fear another creditor coming forward to collect the debt. The home can only be foreclosed once, and the trustee's sale extinguishes the debt. (Code Civ. Proc., § 580d; Dreyfuss v. Union Bank of California, supra, 24 Cal.4th at p. 411.) But as the Attorney General points out in her amicus curiae brief, a holding that anyone may foreclose on a defaulting home loan borrower would multiply the risk for homeowners that they might face a foreclosure at some point in the life of their loans. The possibility that multiple parties could each foreclose at some time, that is, increases the borrower's overall risk of foreclosure."
" A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity's hands. No more is required for standing to sue. "
My state has another requirement of law that applies here. In my state, the ability to act as "attorney in fact" for another, for certain acts, MUST be demonstrated by what's called "express authority". There is case law in my state that says that, while there's no specific required format for POA to be binding and legal, where express authority is required, that express authority must be demonstrated in writing. And the statute has a list of certain acts that authority to conduct as an agent of the principal must be expressed specifically. So, for example, if you intend to issue a POA for a servicer to assign a mortgage to you--i.e. acquire a thing--that authority must be expressly demonstrated. Your civil procedure codes may have something similar--search your civil procedure for "express authority".
This brings us to the standard practice of the pretenders bringing in a rep from the servicer to validate the POA. Y'all do know this isn't legit, right? Think about this. If I'm the principal, and I give you a POA, and there's a lawsuit and a trial, how can YOU, as the agent, verify that I as the principal indeed granted you that authority? That would be like you forging one of my checks and then you showing up in court to say, "Yes, Your Honor, he really did write this check to me." Clearly, this isn't legal, but if you don't object and press the issue, the court cannot do it for you.
By the way, if any of you are facing a representative from the servicer trying to authenticate the POA, this case is a great example of how you can and should proceed:
Long story short, the plaintiff called a witness from Caliber Home Loans. This witness was present to authenticate certain documents. However, that witness had never once laid eyes on the actual originals. This is a witness from a servicer, brought in to testify that copies of certain documents were true and correct copies of originals---that he had never once seen. Stop and think about this. Had the defense attorney not questioned this witness to these facts, the court would have allowed the testimony and entered the documents in question as evidence.
The judge agreed with defense counsel. The documents were objected to, the defense asked that they be stricken and the judge did just that. And without the POA, defense then moved for involuntary dismissal, which was granted. NOTE THIS--the plaintiff had all the other documents, offered them into evidence, and the defense only objected to two--the POA and the assignment of mortgage. In this case, they never made it to discussing the assignment. The POA itself was objected to by defense, and under voir dire, defense counsel learned from the witness that he had never seen the original paper document--he only had seen the imaged copy in their computer system. She then asked:
"
Q Okay. If you haven't seen the original of that
document, then can you be certain that that is a true and
accurate copy of it?
A It's within Caliber's business records and we
rely upon them. It is part of Caliber's business records."
When plaintiff pushed further and tried to get around the then-sustained objection by citing "Caliber's normal business practices", defense stepped in again:
"
Q How would you know for certain as you sit here
today that the person who put that document into the
system for Caliber reviewed the original if you don't know
who the person who did it is?
A I don't."
Remember this---the court CANNOT step in and defend you against these attempts. We have to do it ourselves. And if we don't argue these points and hold to these standards, we lose on unsubstantiated "documentation".
In this case, the plaintiff's counsel really keeps pushing the point even after the defense's objection was sustained twice. And the judge had enough:
"
THE COURT: Power of attorney isn't coming in,
Counsel. I've sustained the objection now. If you
have anything further, let's move on.
MR. TAYLOR: I'm sorry?
THE COURT: Let's move on if you have anything
further. Power of attorney is not coming in evidence
based on what you've presented today.
MR. TAYLOR: Your Honor, my witness has
testified that it was a document prepared --
THE COURT: Counsel, don't argue with me. I
made my ruling. Now move on; otherwise, your case is
dismissed."
Couple more bits that warrant attention--when the POA is not admissible and is therefore excluded, that brings you to this point:
" MS. BELMONT: But the witness is relying on the document that he can't get in as evidence to show that he has the authority to testify and, therefore, I would move to strike the witness's testimony completely because he has no authority to testify on behalf of the plaintiff, who was substituted in by counsel. The new plaintiff is U.S. Bank and Trust, as trustee of the LSF9 Master Participation Trust. The witness works for Caliber, not the plaintiff; therefore, the witness shouldn't be testifying today. "
Which led this judge to this point:
"
THE COURT: If you have a witness from U.S.
Bank Trust, bring him in.
MR. TAYLOR: Well, Your Honor --
THE COURT: That's the problem, you don't,
because you have not proven up your power of attorney
giving Caliber the authority to be in court today on
behalf of U.S. Bank.
Motion is granted."
This case was dismissed on the spot. The JUDGE told the plaintiff to produce a witness from US Bank Trust!
