Homeowners facing foreclosure ask feds for help

Antonio and Kathlene Mareno obtained a home mortgage fromDime Savings Bank. The terms of the mortgage required them to pay theirproperty taxes directly to the local tax collector. However, if they failed todo so, the mortgage allowed the lender to pay the property taxes, add theproperty tax amount to the mortgage balance, and adjust the monthly mortgagepayment.

The borrowers allegedly failed to pay their property taxesfor 2002 and 2003. As a result, Dime Savings paid the property taxes andincreased the monthly mortgage payment from $754 to $1,268. The Marenos madeone payment of $754 after the increase and then stopped making any mortgagepayments.

Purchase Bob Bruss reports online.

In 2004, Dime Savings filed a complaint against the Marenosto foreclose on the mortgage. The state court then granted a summary judgmentallowing the foreclosure.

The Marenos made several state court appeals of theforeclosure, which were denied.

Then in November 2005 the Marenos sued Dime Savings in U.S.District Court, alleging the state trial court’s handling of their caseviolated their federal due-process rights. Dime Savings argued the foreclosureissue was already decided in the state court and the homeowners don’t have aright to litigate the same issue again in federal court.

If you were the U.S. District Court judge would you rule theMarenos can challenge the state trial court foreclosure judgment in federalcourt?

The judge said no!

The jurisdiction of U.S. District Courts is strictlyoriginal and there is no right to appeal state court due-process claims exceptto the U.S. Supreme Court, the judge began.

Furthermore, a federal due-process claim under the 14thAmendment of the U.S. Constitution can only be brought against a defendantacting under authority of state law, and there was no such evidence herebecause Dime Savings is a private business corporation, the judge explained.

The Marenos already had their right to litigate and appealthe foreclosure judgment in state courts, the judge ruled. They failed to provea federal denial of due-process claim, so this case is dismissed for lack ofjurisdiction, and the foreclosure may proceed, the judge concluded.

Based on the 2006 U.S. District Court decision in Marenov. Dime Saving Bank, 421 Fed.Supp.2d 722.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

Copyright 2006 Inman News

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