During a momentary escape from a brief I’m trying to complete before the end of today, I ran across an article on the Pennsylvania Litigation Blog about a sheriff who has become a hero to some because he won’t conduct auctions on foreclosed homes as the law requires.

The article itself was basically just a reprint of one that was supposed to appear in the Wall Street Journal on June 6, 2008.  It was a user comment that struck me more and inspired this post.

I don’t normally write about non-criminal law issues, but since this involved a sheriff picking and choosing what duties to perform, it seemed an acceptable fit here.

The commenter praised the sheriff because even though what the sheriff did was “against the law,” it was the morally right thing to do.  At least, it was the morally right thing to do in that commenter’s opinion.

I disagree.  At least I think I disagree.  (Keep reading!)

So when I read the comment praising the sheriff, I started to post the following comment in response, but then decided that since my comment was getting a little long, and since that post was so old, and since my current briefing schedule has temporarily interfered with my completing a blog article for this blog, I’d post it here instead.  Hopefully, it will inspire some fresh commentary, because (when I stop and think about it), I’m not 100% sure how I feel about this myself!

This is what concerned me and what I started to post:

Does that mean you think the law does not matter?

I agree that it would be great to find a way to help people keep their homes.  However, approving of the sheriff’s refusal to enforce existing law just because you like the result is bad precedent.

What will you do when he decides — based on his own moral code — to refuse to enforce laws that you think are good?  What will you do if he decides to take away some of your rights, because they get in the way of what he wants to do?

Because that’s exactly what he’s done here: he’s taken away the rights of those who paid for the property.  Remember, when you buy a house, the bank actually pays for it.  You then pay the bank back.  If you don’t pay the bank back, you’ve taken their money.  If the sheriff refuses to evict you and sell the property, he’s a government agent endorsing an improper taking contrary to the Fifth Amendment.

In fact, it’s even worse, because he’s not really taking private property for public use; he’s merely endorsing your theft of property.  One can argue he’s taking private property from one party (the bank) for private use by another (you).

Frankly, I believe banks need to be better regulated so that they cannot take advantage of people who don’t always understand the long-term consequences of their acceptance of the kinds of loans the banks give them.

But a sheriff who decides which laws to enforce and which not to enforce is no sheriff at all.  He is, in essence, no better than a criminal, ignoring the rule of law.

When the law is “wrong” and hurts people, the law should be changed by the legislature; not because the sheriff decided to ignore it.

Now, mind you, I’m not unaware — as I believe I pointed out above — that it’s a real shame what’s happening to people in the current market, with the economy and housing going the way it is right now.  My own house is “upside-down,” as they say.

I’m also aware that the Adjustable Mortgage Rate (ARM) type of loan that many people (including me, by the way) bought into is the cause of many a default when the rates zoom skyward.

Something should be done about this.  From what I understand, the last run of defaults is about to be repeated in a new wave this coming year when several people (myself included!) will see their ARMs kick in.

But that “something” is not for a sheriff to take it upon himself to decide that he won’t perform his duties — to decide that it’s okay for banks to be stiffed — because homeowners are suffering.

I hope banks do end up losing out for their refusal to help fix a mess they helped create.  (People like me who made misjudgments about how these loans would play out helped, too.  And we are losing out, believe me!)

But, again, I’m not at all sure that the answer is a sheriff who refuses to do what his job requires.

Now that I’ve said that, though, let me throw this out there:  What if sheriffs throughout the land had refused to endorse “Jim Crow” laws in the last century?  That would have been a moral thing, right?  But it would also have been contrary to law, right?  And it’s the duty of sheriffs — as with all law enforcement officers — to uphold the law, right?

The water is a little murkier now.

I can’t even completely argue that the situation is different here because the foreclosure problem just has to do with people losing their homes — it’s a property question — and “Jim Crow” laws weren’t.  But weren’t they, to some extent at least, property laws?  White bigots wanted to bar African-Americans from access to their property.  White bigots wanted to choose to whom they would provide services.  White bigots, having power, wanted to use the power to their own advantage and to the disadvantage of non-whites.

How is that different from what the banks want to do now?

But if — as I do strongly believe — it would have been acceptable for sheriffs to refuse to enforce “Jim Crow” laws, why is it not acceptable for sheriffs to refuse to force people from “their” homes and sell them on behalf of the banks who actually own them?

I don’t have an answer.  It’s definitely something for me to mull over.  My fear is that saying it’s alright for a sheriff to pick and choose which laws to follow — and how — is contrary to the rule of law and ultimately hurtful to us.  The Benevolent Fascist is no more welcome in my world than The Nasty Fascist.  Today, the duty the sheriff refuses to perform is enforcing laws pertaining to mortgage contracts, foreclosures and sales of foreclosed homes.  Tomorrow, might not it be our civil rights?

Or is this just a cloaked slippery slope argument?

12 comments

  1. Then there is the whole discussion of civil disobedience, and when that is, or is not, appropriate.

    Then of course, if it was YOUR house, and YOUR furniture being stacked up in the street, maybe you’d appreciate that kind of sheriff, hmm?

  2. Then there is the whole discussion of civil disobedience, and when that is, or is not, appropriate.

    Then of course, if it was YOUR house, and YOUR furniture being stacked up in the street, maybe you’d appreciate that kind of sheriff, hmm?

  3. Great point, Larry.

    I had a great deal of experience working for one of the major lenders during the mortgage “boom.” The lender serviced the loans for 2 months max. Thereafter, these mortgages became “good” ones and were resold. Pure profit.

    Most folks who actually win these cases ask for one simple evidence – the original note signed by them. Most lenders cannot provide such document. I wonder why…

    This is a sick and horrific situation when Banks kick people out on the streets (and some during a winter) with no consequences. It’s all about profit. It’s all about money and control.

    Good for Sheriff – I would like one of them in our County…

  4. Great point, Larry.

    I had a great deal of experience working for one of the major lenders during the mortgage “boom.” The lender serviced the loans for 2 months max. Thereafter, these mortgages became “good” ones and were resold. Pure profit.

    Most folks who actually win these cases ask for one simple evidence – the original note signed by them. Most lenders cannot provide such document. I wonder why…

    This is a sick and horrific situation when Banks kick people out on the streets (and some during a winter) with no consequences. It’s all about profit. It’s all about money and control.

    Good for Sheriff – I would like one of them in our County…

  5. Great point, Larry.

    I had a great deal of experience working for one of the major lenders during the mortgage “boom.” The lender serviced the loans for 2 months max. Thereafter, these mortgages became “good” ones and were resold. Pure profit.

    Most folks who actually win these cases ask for one simple evidence – the original note signed by them. Most lenders cannot provide such document. I wonder why…

    This is a sick and horrific situation when Banks kick people out on the streets (and some during a winter) with no consequences. It’s all about profit. It’s all about money and control.

    Good for Sheriff – I would like one of them in our County…

  6. Yes Rick, you are right. The action the Sheriff took was illegal once the court ordered and granted the Motion For Summary Judgment. But that is just my point. Was the Plaintiff in the case the one with Standing to bring the cause of action in Court? Plaintiff’s with no standing, no ownership of notes who cannot prove ownership but simply state “they are owners” are prevailing. Should not the Plaintiff prove their Standing and if they cannot is that not reason enough to dismiss the action?

    In your story we do not know who the Plaintiff was and if the Plaintiff had the Right Party to bring the action. If they were then the Sheriff’s action was illegal. If they were not, well, now the moral issue of following orders comes into play.

    How about the case where a couple paid cash, had no mortgage at all and was foreclosed on by BofA due to the bank making an error. They even proceeded when their own Realtor told them that they had the wrong house. BofA did not listen to anyone and kept moving forward. The couple’s posessions were removed and destroyed, their reputation destroyed even after they finally got their house back. Where is the justice in that? BofA made a lame apology but did little else to rectify the situation. BofA is now getting sued. They will lose then there will be some sort of justice.

    My question is, must you follow the law if the law was wrong? When is it OK not to follow an order? I would imagine it would be when it has a direct affect on life, liberty and the pursuit of justice.

    I do not advocate not following the law. I do advocate that ALL should follow the law. The law is for everyone. If a plaintiff has No Standing then they are not following the law and judges should – as some do = throw the cases out. After all, the banks caused this problem and are triple dipping on the same properties they financed and got paid in full for when they sold the note.

    The law is the law for EVERYONE. I am not an attorney but dispensing the law fairly to all is what our Democracy is all about. Two wrongs don’t make a right.

  7. Yes Rick, you are right. The action the Sheriff took was illegal once the court ordered and granted the Motion For Summary Judgment. But that is just my point. Was the Plaintiff in the case the one with Standing to bring the cause of action in Court? Plaintiff’s with no standing, no ownership of notes who cannot prove ownership but simply state “they are owners” are prevailing. Should not the Plaintiff prove their Standing and if they cannot is that not reason enough to dismiss the action?

    In your story we do not know who the Plaintiff was and if the Plaintiff had the Right Party to bring the action. If they were then the Sheriff’s action was illegal. If they were not, well, now the moral issue of following orders comes into play.

    How about the case where a couple paid cash, had no mortgage at all and was foreclosed on by BofA due to the bank making an error. They even proceeded when their own Realtor told them that they had the wrong house. BofA did not listen to anyone and kept moving forward. The couple’s posessions were removed and destroyed, their reputation destroyed even after they finally got their house back. Where is the justice in that? BofA made a lame apology but did little else to rectify the situation. BofA is now getting sued. They will lose then there will be some sort of justice.

    My question is, must you follow the law if the law was wrong? When is it OK not to follow an order? I would imagine it would be when it has a direct affect on life, liberty and the pursuit of justice.

    I do not advocate not following the law. I do advocate that ALL should follow the law. The law is for everyone. If a plaintiff has No Standing then they are not following the law and judges should – as some do = throw the cases out. After all, the banks caused this problem and are triple dipping on the same properties they financed and got paid in full for when they sold the note.

    The law is the law for EVERYONE. I am not an attorney but dispensing the law fairly to all is what our Democracy is all about. Two wrongs don’t make a right.

  8. I don’t recall reading anything that said the foreclosures the sheriff was refusing to endorse were illegal. On the contrary, the story I read indicated that the sheriff’s actions were actually the illegal ones.

    However, I do thank you for your comment. And, as I said, I myself am not really sure what the right answer is right now. I know what the legal answer is; I don’t know what the morally right answer is.

  9. I don’t recall reading anything that said the foreclosures the sheriff was refusing to endorse were illegal. On the contrary, the story I read indicated that the sheriff’s actions were actually the illegal ones.

    However, I do thank you for your comment. And, as I said, I myself am not really sure what the right answer is right now. I know what the legal answer is; I don’t know what the morally right answer is.

  10. I don’t recall reading anything that said the foreclosures the sheriff was refusing to endorse were illegal. On the contrary, the story I read indicated that the sheriff’s actions were actually the illegal ones.

    However, I do thank you for your comment. And, as I said, I myself am not really sure what the right answer is right now. I know what the legal answer is; I don’t know what the morally right answer is.

  11. Your thoughts are both interesting and valid but you must go further. The question is did the sheriff refuse to auction a home that was “illegally” foreclosed on? If so then he is not violating the law he is standing up for it.

    Just as members of the military must not obey an order that is morally wrong or against the law. Nazi soldiers used the defense that they were “following” orders when murdering thousands of people were told this excuse was not valid. So just saying “I am following orders” just does not play.

    As an attorney, you must realize that many foreclosures are “illegal”. The plaintiff’s in most cases have no Standing. With no Standing, they have no right to initiate or complete the foreclosure process. Yet the courts are allowing this “injustice” and clear violation of proper procedure. If someone is allowed to foreclose on a property without having – proving ownership – of the mortgage note, then I should be able to foreclose on your house simply by saying, I am the rightful owner of the note but, your Honor, I either lost it, destroyed it or it was stolen, but believe me, your Honor, I do own it so please let me continue my action.

    This is what is happening in the court system around the country. Even in a non judicial state, only the real owner of the note can foreclose.

    You say that when someone takes a loan from a bank to purchase a home, the bank – who put up the money – is entitled to get repaid. I agree with this but there are some other issues at play here.

    The bank that originally loaned you the money – in most cases – got paid in full for the loan they made to you by virute of the fact that they SOLD you note to a third party. So right there, the “bank” is made whole and you have no further obligation to them.

    By law, when you note is sold you – the borrower – must be notified and told who the new owner is. In most cases that procedure has not been followed. Only the servicing – collection and administration – of your loan is disclosed to you. Servicers of mortgages DO NOT OWN THE NOTES.

    We also know, that most notes were sold to Wall Street who in turn sliced and diced them, put them into “pools” and sold shares of that pool to thousands across the world.

    So the true owners of “your note” would be the thousands of bondholders who own a fraction of your note. Tell me if I am wrong here as I am not an attorney. You must have a 100 percent interest in the note in order to foreclsose. If this is correct then the plaintiff’s must be ALL the bondholders – the true and real owners.

    This is not the case in many foreclosures. The plaintiff is the servicing company, the original lender (the one who sold the note and got paid in full plus a profit) or the “trustee” of the trust established by the securitizers (Wall Street firms) to act as a conduit to flow the funds collected by the servicers back to the bondholders. In most cases even the Trustee does not have the right to be plaintiff.

    In many cases there are no Assignments and no Assignments recorded of the original note meaning that the original bank/lender is still the “rightfull” owner of the note but they have been paid in full for it.

    As your comment was getting long, so is mine as this is a big big legal issue. A sheriff refusing to take orders to auction a property that was foreclosed on illegally is performing is duty protecting the public.

    Our laws and our judicial system – at least when it comes to foreclosures – is unjust to say the least. Everyone has the right to a defense and everyone has a right to know who their accusers are. Evidence and proof are required in most legal cases but not in foreclosures. Only a hand full of judges around the country understand and follow the law as it is written.

    This is a large topic and I would be more then happy to discuss it in more detail with you. You can contact me by email with a phone number and I will be more then happy to provide you my phone number.

    The sheriff is serving the people and justice correctly.

  12. Your thoughts are both interesting and valid but you must go further. The question is did the sheriff refuse to auction a home that was “illegally” foreclosed on? If so then he is not violating the law he is standing up for it.

    Just as members of the military must not obey an order that is morally wrong or against the law. Nazi soldiers used the defense that they were “following” orders when murdering thousands of people were told this excuse was not valid. So just saying “I am following orders” just does not play.

    As an attorney, you must realize that many foreclosures are “illegal”. The plaintiff’s in most cases have no Standing. With no Standing, they have no right to initiate or complete the foreclosure process. Yet the courts are allowing this “injustice” and clear violation of proper procedure. If someone is allowed to foreclose on a property without having – proving ownership – of the mortgage note, then I should be able to foreclose on your house simply by saying, I am the rightful owner of the note but, your Honor, I either lost it, destroyed it or it was stolen, but believe me, your Honor, I do own it so please let me continue my action.

    This is what is happening in the court system around the country. Even in a non judicial state, only the real owner of the note can foreclose.

    You say that when someone takes a loan from a bank to purchase a home, the bank – who put up the money – is entitled to get repaid. I agree with this but there are some other issues at play here.

    The bank that originally loaned you the money – in most cases – got paid in full for the loan they made to you by virute of the fact that they SOLD you note to a third party. So right there, the “bank” is made whole and you have no further obligation to them.

    By law, when you note is sold you – the borrower – must be notified and told who the new owner is. In most cases that procedure has not been followed. Only the servicing – collection and administration – of your loan is disclosed to you. Servicers of mortgages DO NOT OWN THE NOTES.

    We also know, that most notes were sold to Wall Street who in turn sliced and diced them, put them into “pools” and sold shares of that pool to thousands across the world.

    So the true owners of “your note” would be the thousands of bondholders who own a fraction of your note. Tell me if I am wrong here as I am not an attorney. You must have a 100 percent interest in the note in order to foreclsose. If this is correct then the plaintiff’s must be ALL the bondholders – the true and real owners.

    This is not the case in many foreclosures. The plaintiff is the servicing company, the original lender (the one who sold the note and got paid in full plus a profit) or the “trustee” of the trust established by the securitizers (Wall Street firms) to act as a conduit to flow the funds collected by the servicers back to the bondholders. In most cases even the Trustee does not have the right to be plaintiff.

    In many cases there are no Assignments and no Assignments recorded of the original note meaning that the original bank/lender is still the “rightfull” owner of the note but they have been paid in full for it.

    As your comment was getting long, so is mine as this is a big big legal issue. A sheriff refusing to take orders to auction a property that was foreclosed on illegally is performing is duty protecting the public.

    Our laws and our judicial system – at least when it comes to foreclosures – is unjust to say the least. Everyone has the right to a defense and everyone has a right to know who their accusers are. Evidence and proof are required in most legal cases but not in foreclosures. Only a hand full of judges around the country understand and follow the law as it is written.

    This is a large topic and I would be more then happy to discuss it in more detail with you. You can contact me by email with a phone number and I will be more then happy to provide you my phone number.

    The sheriff is serving the people and justice correctly.

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