Posted on September 24, 2009 by livinglies
The point must be made, and the evidence must be allowed, that the pretender lenders aregaming the system every day and literally stealing homes from both homeowners and investorswho thought they had an interest in those homes when they bought mortgage backed securities. This leaves the borrower in a position of financial double jeopardy wherein the trueowner of the loan can still make a claim and the investor is simply out of luck — usually havebeen misinformed about the payments or status of the pool of assets the investor bought into.From Landmark v Kesler — see entire decision:kansas-supreme-court-sets-precedent-key-decision-confirming-livinglies-strategies
“6. It is appropriate for a trial court to
consider evidence beyond the bare pleadings todetermine whether it should set aside a default judgment.
In a motion to set aside default, atrial court should consider a variety of factors to determine whether the defendant or would-bedefendant had a meritorious defense, and the burden of establishing a meritorious defense restswith the moving party.7. Relief under K.S.A. 60-255(b) is appropriate only upon a
showing that if relief is granted theoutcome of the suit may be different than if the entry of default or the default judgment isallowed to stand
; the showing should underscore the
potential injustice of allowing the case tobe disposed of by default
. In most cases the court will require the party in default to demonstratea meritorious defense to the action as a prerequisite to vacating the default entry or judgment. Thenature and extent of the showing that will be necessary lie within the trial court’s discretion.”A highly important finding in this decision and affecting those whose homes have already beensubject to a foreclosure sale, judgment or eviction (unlawful detainer) proceeding. In most casesthese proceedings have resulted in actions taken by the parties upon the default of the allegedborrower. The default occurs when the borrower fails to answer in a judicial state or fails to file alawsuit in a non-judicial state. The first time the matter comes before a court is when theforeclosing party files something in court — like an eviction action or petition for writ of possession. The mistake that courts are making at the trial court level is that they are treating thematter as though it has been judicially concluded, as if there was a hearing or trial where theparties were heard on the merits. This is simply not the case.Judges must come to the realization that this is not the end of the matter — it is the beginning.And they should consider any motion directed to the merits of the would-be forecloser’s claimand the defenses of the homeowner. And unlike a motion to dismiss, where there will be plenty of time to consider factual matters later, the motion to set aside the sale, foreclosure judgment,notice of default, notice of sale, or judgment of unlawful detainer or eviction is a finaldetermination of the merits — most often without hearing one shred of evidence offered or proffered by the homeowner. In fact, there are numerous cases where the trial judge abruptly andeven rudely silenced the lawyer or pro se litigant saying that this was a simple matter of eviction(or whatever the motion was pending) and this is not an evidentiary hearing.
Other Judges seethe inherent unfairness and the denial of due process when the homeowner raises objectionsthat the pretender lender had no right to foreclose, did so improperly and essentially stole