Marco? Polo. It is a game of blind man’s bluff played in the swimming pool where the person who is “It” tries with eyes closed to tag another swimmer. To evade being tagged, a player can get out of the pool, but if “It” says, “Fish out of water!” then the person out of the pool becomes “It.” Home foreclosure might not be as much fun, but it has a “Fish out of water!” aspect when it calls into question Subject Matter Jurisdiction.
If the lenders and loan servicers have done their jobs right, what is a foreclosure defense attorney going to say? However, there may be room to talk about the loan servicer’s authority to foreclose.
Subject Matter Jurisdiction is a big deal in our form of government. The United States Judicial System requires that a court have Subject Matter Jurisdiction over the subject of the case, and requires that the parties are the proper parties to pursue the lawsuit. With debt sold into secondary markets, Subject Matter Jurisdiction is an important question. Just because you owe money does not mean the party suing you has the authority to pursue the case.
With institutional lenders, home loans get sold and the loans are transferred. Does the current loan servicer have the Subject matter Jurisdiction to foreclose on the property? There is no personal knowledge of the loan, so the servicer must rely on business records to prove their case. If they only have records from the time they have been servicing the loan, then they may have as much standing as a fish out of water to foreclose on the property.
Very often lenders or loan servicers are unprepared to prove their authority to foreclosure because they lack witnesses and proper business records…but very often these lenders and loan servicers prevail because most homeowners do not put a legal defense.
A Foreclosure Defense is not a denial of debt, but it asks the other side to prove their case…and in the meantime gives the homeowner an opportunity to march like Marco Polo towards an alternative outcome, such as short sale or mortgage modification.