Tuesday, November 23, 2010

Arizona minor success - proof of service victory

November 22, 2010 - Yesterday the Phoenix forcible detainer hearings were a joy to watch.  As we sat in court we talked with people who had a loan agreement modified successfully, and then 3 days later received notice that their house had sold at trustee sale (foreclosure) .   We talked to a tenant that could not reach the new bank owner which had offered her $750 bucks to move within 90 days. She had tried many times unsuccessfully to talk about the offer. 
Bank scam
The newest bank scam is to tell tenants they have 90 days to move, and then when in court, the bank will claim there is only a month to month lease.  By not talking to the renters directly, the bank is often not  in possession of leases which give tenants federal legal rights to remain in their homes until the end of the lease period.  Tenants have an automatic 90 day right to remain in home.

If a lease is produced the banks lawyers will claim it is invalid, due to the amount of rent received (have they heard of fair market rental value?)  or other technicality is used to invalidate the lease and move renters out of their homes,  by denying renter/tenant federal rights. Bank lawyers also use these technicalities to force homeowners to pay higher rent rates than the  market value - while fighting foreclosure in quiet title actions.  

RENTER OR TENANT RIGHTS AFTER FORECLOSURE-click to read more about rights

But I digress, the point of this posting is to cover a VICTORY by a pro se homeowner in a forcible detainer action. 

Let me start by stating that in Phoenix it is rare to have your rights acknowledged, or to have any wins in court. There have been a few wins by both pro se (self representing) and by lawyers in foreclosure defense cases.   Nothing of a major victory has happened. Many do not realize that in Arizona, once the house is sold the banks are given presumption of facts and truth in court. The judges often overlook homeowners rights, and often  do not read the defendants answers / motions or other paperwork.

Yesterday in court we watched a miracle occur   

The defendant appeared and explained he was there as special appearance.  He explained that he had not been served properly and that the plaintiff (bank) was remiss in their duties. The defendant  was denied his motion for jury trial.  See ARS laws. 

The bank lawyers spoke up and asked for a 30 say continuance so that they could properly complete their paperwork.  NOTE:  THESE are professional lawyers and know the laws.  This is standard operating procedure.

1) To start, the  judge denied 3 times the right to a jury trial.  He said it could be discussed at the next hearing, "IF HE (defendant) COULD SHOW HE HAD REASONABLE GROUNDS FOR JURY REQUEST". note: make no mistake,  denial of basic rights are regularly happening, and only 2 jury trials have been granted in years. After granting trials defendants have been manipulated out of the jury  trial and into a basic hearing.  Bank lawyers are very afraid of jury trial because it is harder to achieve corruption with a jury than with just one judge. Jury trial in lands rights is a basic right that is being regularly denied.

2) The commissioner judge granted a continuance of 30 days to the bank to allow them to serve properly the defendant.   The defendant had not been served according to Arizona law.  The bank asked for 30 day continuance and the commissioner judge granted it.  The case at that point was essentially lost.   

3) The defendant wisely "moved" the court to dismiss the case due to lack of summons and jurisdiction.  The judge then looking at the paperwork and seeing only 2 attempts at service via mail and not personal service then granted the defendant's  motion to dimiss without prejudice.  This means that the bank will have to start the process all over. 

While this may seem minor to some, 6 months ago  the outcome would be questionable - quite likely, the case would have not  been dismissed and the homeowner would have been evicted.  The banks just six months ago, would have been sided with -  in my opinion.   It has just been recently that we have seen any acknowledgement of jury trials being grantedor of recognition that jurisdiction is an issue.  Progress in Arizona foreclosure defense has been 'slow as snail trails'  and  we are just now seeing minute glimmers of light, in the dark abyss known as foreclosure defense

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