You Don’t Get A Jury Trial In A Foreclosure…

Comment: This information is not intended to be legal advise, as I am not a lawyer.  The argument at hand is whether or not you can get a jury trial in a foreclosure. The short answer is NO. When the laws were written years ago, and records were, well, recorded, it was assumed that everybody would act in an honest fashion.   Foreclosure courts are courts of “equity”;  it was supposed to be an easy decision not requiring a jury, just an unbiased finder of fact (enter the “Trustee”) to determine if a default exists.  Because of the loss of the integrity of the judicial system and government as a whole, we are forced to bring an action on our own as the Plaintiff for a contract claim, FDCPA, RICO, or even in a Bankruptcy adversary action, so that a jury can be called. 

Counselor #1 says……….

My research indicates that juries can indeed be drawn on mortgage cases. See State Savings v. Young 53 Haw. 132; 488 P.2d 703; 1971 Haw. LEXIS 88 (1971). To the North in Oregon we have Bela and Eva Lengyel v. J.P. Morgan with a $10K Jury Verdict against J.P. Morgan. Those who protect the banksters don’t want Jury Trials because Juries will punish them for their lawlessness, fancy that.

Further, assuming arguendo that it is a matter of equity, then the Plaintiffs must demonstrate Clean Hands according to the Clean Hands Doctrine. Bank of America recently lost out on that recently: Bank of America v. Pate 2015 Fla. App. LEXIS 3774 (First Dist. Ct. App March 16, 2015), in which the Court opined:

“In this civil foreclosure case, the trial court found that Appellant Bank of America (the Bank) engaged in egregious and intentional misconduct in Appellee Pates’ (Pate) purchase of a residential home. Thus, based on the trial court’s finding that the Bank had unclean hands in this equity action, it did not reversibly err in denying the foreclosure action and granting a deed in lieu of foreclosure. In addition, the trial court did not err in ruling in favor of the Pates in their counterclaims for breach of contract and fraud, and awarding them $250,000 in punitive damages and $60,443.29 in compensatory damages….”

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As this conversation developed, Attorney #2 had this to say……

Another little known fact:
The right to a jury trial for reasons that escape reason is limited by historical factors — that is, what was allowed to go to a jury trial before the adoption of the US and State Constitutions, and in foreclosure cases historically a jury trial was simply not allowed.
However, if a borrower sues first for breach of contract or to void a mortgage, generally jury trials are allowed as it is then deemed to be a contract action.
But if a borrower counterclaims in a foreclosure case, a jury trial is still not allowed.
It is not a question of something being an equitable action, but is based irrationally and artificially in the case law upon history only.
The bloggers and commentators making statements to the contrary are misleading their readers and viewers.
There is no worse an artificial concept in the case law, but it is not a recognized constitutional violation of the right to trial by jury in foreclosure cases since constitutions typically are expressly stated to depend on what was a right to trial by jury historically and if that limited language is not in constitutions it has been interpreted universally in that way.
Thus, more properly the borrower’s argument should be for a change of interpretation and not that the existing right has been violated since the existing constitutional interpretation provides no such right, and the cases cited where jury trials are allowed are not directly applicable.

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