_IGP0737Has the Supreme Court corrupted American homeowners right to a jury trial against lenders and servicers in federal courts?

The Webster-Merriam Dictionary defines the verb “corrupt” to mean:

: to cause (someone or something) to become dishonest, immoral, etc.

: to change (something) so that it is less pure or valuable

: to change (a book, computer file, etc.) from the correct or original form

When I grew up in Iowa in the mid twentieth century we learned in high school “civics” class that our freedoms were preserved through a number of Constitutional checks and balances designed to protect the people from the arbitrary exercise of governmental power.  Two of the most basic checks on governmental power, i.e. “the separation of powers” in and “dual sovereignty” nature of our government, are derived directly from the governmental framework established by the Constitution.

Shortly after it was ratified, the Constitution was amended by ratification of ten amendments, which are known as the Bill of Rights.  The right to a jury of one’s peers was one of the basic structural provisions our founders enacted pursuant to the Bill of Rights.

The Fifth Amendment grants the right to trial by jury in criminal cases.  The Seventh Amendment grants the right to trial by jury in civil cases.  The Seventh Amendment to the United States Constitution states:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The founders of our government thought that trial of fact by juries rather than by judges was an essential bulwark of civil liberty.  Thomas Jefferson, our third President, wrote:  “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”  In Joseph Story’s 1833 treatise Commentaries on the Constitution of the United States, he identified the “privilege of a trial by jury in civil cases … [as] essential to political and civil liberty.”

Trial by jury is a structural provision of the Constitution which is intended to directly check judicial abuse and serve as a common sense balance by the people on the exercise of governmental power.  Perhaps that is why judges have consistently narrowed this right over time.  Indeed, as early as 1941 Justice Hugo Black, along with two other justices, complained about the “gradual process of judicial erosion which in one hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.”  Today the loss of the right to a jury trial is almost complete for anyone wanting to contest the actions of federalized lending industry seeking to take peoples’ homes.  In over 91 per cent of such cases federal judges decide the cases pursuant to a motion to dismiss.

The constitutional problem stemming from a 91% lender win rate over borrowers is obvious.$file/motioniqbal.pdf at, p.  14, Table 4.  The Constitution provides that a jury of one’s peers, not federal judges (which acknowledge few peers), will decide factual issues.  A jury of homeowners’ peers might be less likely than are federal judges to find servicers’ testimony and evidence credible.

Indeed, given public knowledge about illegal banking practices it is increasingly difficult to justify federal judges decisions precluding borrower’s constitutional right to have their cases against banks and servicers decided by a jury.  The right to jury trial was intended to ensure that one class of people don’t sit in judgement over another.  But federal judges seem determined as ever to allow federal corporations, like Fannie Mae and Freddie Mac, and federal banks and their servicing arms, roll over American homeowners without affording them access to a jury of their peers.  Had they done so citizens more willing to believe their neighbors than the banks likely would have ended this crisis long before now.

Americans will not accept, nor will history exonerate, the federal courts’ participation in the theft of citizens’ homes by the wealthy class.






















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About Scott . Stafne

Mr. Stafne is very experienced in property rights, including banking wrongs and foreclosure prevention; Constitutional Law (under the United States and Washington State Constitution); Appellate law; land use law; personal injury law. Scott has recently become a media focal point as his win record of foreclosure defense cases against the largest financial institutions, servicers, trustees as well as MERS have blazed the trail toward ending the foreclosure crisis and representing the rights of the homeowner above the profits and secret dealings of corporations.   Scott sees law as a foundation for establishing a system of twenty first century liberties for the people; and for removing that corruption of power within our government which makes the achievement of real purpose beholden to only money.   Scott Stafne has been an attorney since graduating from the University of Iowa in 1974. He worked for a large law firm in Indianapolis (Baker & Daniels) for two years. Thereafter, he moved to Seattle Washington in order to obtain a Masters of Law degree from the University of Washington, which he obtained in 1977. Scott practiced law while going to graduate school and has practiced ever since.   This is a personal blog, and does not constitute legal advice in any form, and is not necessarily reflective of the policies or opinions of Stafne Law Firm. Visit the Law Firm: Visit the Google+ Page: Visit the Facebook Page:   *Web Developer: David J. Posel
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