Very interesting comments from a very experienced colleague.
Glad it is generating careful thought.
However, arguing equal protection violations in my experience despite the merits of the argument is even more difficult than arguing due process violations in these unique circumstances.
I am preparing a reply for the US Supreme Court already and will try to incorporate these additional ideas in my reply, and of course it would be hugely helpful for others to seek to file amicus briefs in support with their own rationales!
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I am wondering if this is too narrow. The basic assumption that turns into a presumption that turns into a judgment is that the loan was made by the originator. In most cases that isn’t so. Hence the note is defective and so is the mortgage. I also think that this is less an issue of simple due process than an issue of equal protection — debtors in the class of foreclosure victims are treated differently than debtors of similar situations.
There is at least some due process in all these cases and the argument could be made that the state isn’t doing enough to provide more — but the whole strength of that argument depends upon an allegation and proof that homeowners as a class get less due process than any other class of debtors. As a result, presumptions that are rebuttable are treated as virtually unrebuttable leading to…
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