Capital One v. Peck and Gilliam v. Bank of America — Unraveling the Ancient Mysteries Behind Contemporary “Standing” Disputes in Foreclosure Courts

Your Host: Attorney Gary Victor Dubin
with
Co-Host:  Former Hawaii Governor John D. Waihee 

Foreclosure Workshop #61: Capital One v. Peck and Gilliam v. Bank of America — Unraveling the Ancient Mysteries Behind Contemporary “Standing” Disputes in Foreclosure Courts

For centuries, one of the most important yet confusing concepts in American Law has been that of the “standing” of a party to pursue claims and defenses in court.

Without “standing,” claims and defenses will be dismissed in court, which makes “standing” one of the most powerful weapons in foreclosure litigation especially.

Foreclosure defense concepts by themselves have traditionally remained confusing enough, as our listeners know, varying from jurisdiction to jurisdiction and even within the same jurisdiction, and when recently combined with unsettled general standing disputes have led not only to inconsistent rulings between courts, but to inconsistent results even within the same jurisdiction.

One principal reason for all such combined confusion in foreclosure litigation is the patchwork manner in English and American Law concepts of “standing” have become intertwined within the concept of a court’s “jurisdiction,“ now itself splintered into numerous subconcepts, such as personal versus subject matter standing jurisdiction, the right to hear versus the right to decide, void versus voidable standing claims, legal versus equitable jurisdiction, and various controlling evidentiary concepts such as res judicata, burden of proof, and claim preclusion.

Successful foreclosure defense today requires advanced knowledge of newly emerging standing issues and how to deal with each of them.

Two recent judicial decisions decided just last week, one in New Jersey (Peck) and the other in California (Gilliam), illustrate some of the most important standing issues in foreclosure litigation today.

On this week’s show, John and I will examine these two separate Judicial decisions, both their strengthens and their weaknesses, as guides for future foreclosure defense likely applicable to each of our listeners’ cases.

In conclusion, we will suggest a simple written discovery request to use in order to lay the needed groundwork for defeating a pretender lender’s standing to foreclose in the typical securitized trust case.

 

 

 

Gary Victor Dubin
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813

Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net

Licensed in California and Hawaii

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