Friday, November 26, 2010

Forcible Detainer Court Battle : Results? Bank Starts over!

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 granted or 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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