Blog

By: Michael de Yoanna

Category: Elevated Voices

Posted: December 13, 2010 2:00 PM

Is Colorado's Foreclosure Process Unconstitutional?

If you think the nation's foreclosure crisis is easing, you might want to check in with Rick Sharga, a senior vice president at RealtyTrac, an online marketplace for properties. He tells The Wall Street Journal the number of foreclosures is expected to increase in 2011 (2010 will end with about 1.2 million bank repossessions, and 2009 closed with roughly 900,000). 

But tens of thousands of foreclosures next year in Colorado may be delayed or halted thanks to Denver attorney John Prater, who on Friday filed suit in federal court against the state, alleging that, under the U.S. Constitution, lenders are not allowed to seize properties without due process. Under the current system, lenders in Colorado can foreclose even if a fraudulent origination contributed to the delinquency of payment, or while promising loan modifications that never come, writes The Denver Post.

Moreover, foreclosures can take place without any proof of legal standing before a judge, according to the suit. The state's use of governor-appointed trustees and limited hearings is unique in the nation, and some, like Robert Sagel, the Morgan County treasurer and a public trustee, defend it. "We are a disinterested party," he says. The foreclosure process in Colorado tends also to be faster, roughly 110 to 125 days, compared with states that have judicial foreclosures. New York, where judges preside over foreclosures, takes 445 days on average—the longest in the nation. But consumer advocates say homeowners are at a disadvantage in Colorado. "Borrowers don't even have their hands up to block the punches. They don't even see the punches coming," says Andrew O'Connor, a spokesman from the Prater law firm.

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No House, No Hearing: How to Lose Your House in Denver

I’m ready to go to court, but instead, I’m standing in line. With about a dozen unhappy folks, on the second floor of Denver’s City and County Building, I’m waiting outside the office of the clerk of the Denver District Court. We’re looking at our shoes, clutching the documents that brought us here. We’re in line for mortgage foreclosure.
I borrowed someone else’s pleading, because I rent an apartment and fortunately don’t face the nightmare of foreclosure myself. Call it morbid curiosity, but I want to know what it’s like to lose your house. Forget about losing a warm place to sleep, safety, a daily shower, and family relationships. I just want to know how the courts treat you, and how you can fight back.
    Boy, was I naïve. Since the pleading commanded me to show up for a Rule 120 Hearing, I thought there would be a hearing. I pictured each of us being assigned to a court room and a judge, having an opportunity to tell our side of the story. No way.
With thousands of foreclosures taking place every day, other states have a “rocket docket” to rush folks through the judicial system, with a judge presiding. Not Colorado. In Illinois, for example, the Cook County courts foreclose against 90 to 120 people every morning, in groups of 8 to 10. Maybe it’s Chicago’s proud history as the hog- and cattle-butcher to the world that inspires those courts to process folks in lots, like livestock at an auction. But in Colorado, the disregard for constitutional rights is even worse.
 It was a Monday morning when I went to court. Christmas was two weeks away, so the famous nativity scene was on display. Right by the courthouse steps, so you can’t miss them, were the baby Jesus, Mary, Joseph, six animals, and three kings, behind a sheet of plastic, in perfect defiance of the constitutional separation between church and state. 
We should leave the nativity up all year, as truth in advertising. Then, all  who find themselves summoned to the Denver District Court will know, up front, that rights guaranteed by the Constitution of the United States are not necessarily protected within.
Consider the right not to be deprived of your property without due process of law. The basic ingredients of due procss are notice and a hearing, as I learned in law school. I can’t stop wondering about the thousands of people who are losing their houses every day, all over the country, usually without lawyers to represent them.
This is what happened to me.
Before coming to court, I found my case online among 163 mortgage foreclosures scheduled for the 8:30 am call. There was no court room assignment. I wondered who my judge would be. 
Inside the building, I walked upstairs and down, looking for the mortgage foreclosure room. The building was quiet, its granite halls polished and somber. The only hopping place was the line outside the clerk’s office.
Then, luckily, I spotted a sign taped to a wall: “The Pro Se Resource Center has moved to Room 307A.” Success! “Pro se” means representing yourself, so there must be someone there who could tell me how to  deal with a mortgage foreclosure, or at least give me a summary of the law and the procedure.
 But the pro se office was closed. Across the hall, I found two women working at their desks. The tall, thin one told me that the resource center handles only divorce and child custody matters. I asked where I could find a guide to the foreclosure process.
“You can find all about it online,” she said, with a smile.
But what if I don’t have a computer?  I asked.
“Go to the public library,” she said.
And what if I don’t know how to use a computer?
“I’m sure someone there can help you,” she concluded. And then, irritated, she and her colleague bustled me out of their office, because “we only handle divorce and child custody here.”
So, the courts pass the buck to the public library. I paused to silently acknowledge the heroic job librarians do for us, but I wasn’t quite ready to give up on the court system.
I studied a map of the court house, which pictured a law library in room 389. I couldn’t find it. Two women in the hall helpfully pointed the way. The library’s doors opened into darkness. I flipped on six switches, which illuminated a conference table and shelves of law books. There was no one there to answer my foreclosure questions. The most recent case reporter I could find was dated 2002. So much for doing research in the court house.
I went back to the clerk’s office. The line had barely moved. The man ahead of me said he knew a little about foreclosure proceedings.
“The public trustee handles, foreclosures,” he said, “and I don’t think there is a hearing. I think all they want to know is, are you in the military, and one other thing. If you answer no, they say, ‘Okay, you’re foreclosed upon.’ I don’t know if you actually get to see the trustee in person.”
Eventually, I reached the head of the line. The clerk, a short woman with rectangular glasses, handed me a single sheet of paper that said at the top: UNDER NO CIRCUMSTANCES WILL A HEARING TAKE PLACE TODAY. It was the “General Information Sheet for Rule 120 Orders Authorizing Sale,” and it further informed me that it was too late to file an answer. If I had filed one, “the Court will proceed to review the motion and other filed documents and issue an appropriate order without holding a hearing.”
Finally, it said, “The Public Trustee is located across the street, in the Wellington Webb building.”
I crossed the street, passed through security, and walked down the long hall to the public trustee’s office. The man at the desk said,  “When your property goes into foreclosure, we put the documents into our system. We send you a notice of foreclosure and the date when the property is going to sale.”
I asked him when I could schedule my hearing before the public trustee.
“Hearing?” he said. “There is no hearing.”

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