Scott E. Stafne, Esq. – Foreclosure Fraud is a Type of Personal Injury

1 05 2015

Attorney Scott Stafne (WA) is known in foreclosure fraud circles as people’s lawyer, the one who not only understands the complicity of mortgage fraud, but who is also active on social media and always ready to share his opinion with general public. For those facing their own foreclosure this means a lot, since they have been neglected by their own government and pushed aside while the banks are still continuing with their old stealing practices.

Here is my recent interview with him:

How did a personal injury expert ended up covering and fighting foreclosure fraud? You’re a third generation lawyer – were your father and grandfather also involved in similar issues in their practice?

Attorney Stafne: Foreclosure fraud is a type of personal injury, just one that our courts let the banks get away with. People who have the homes wrongfully taken from them experience all sorts of injuries, for which the common law of torts would normally provide a remedy. My Dad also practiced personal injury law and was part time City Attorney for Bettendorf Iowa, which is on Iowa side the Quad Cities across from Moline and Rock Island, Illinois. Davenport, Iowa borders Bettendorf. Dad gained significant experience in annexation law as Bettendorf grew over the course of my youth.

In your appellate published brief Burkart vs MERS, you stated the following:
“The Stafne Trumbull, LLC law firm believes much of the mortgage foreclosure mess results from the judiciary’s lack of respect for the principles of federalism and state sovereignty guaranteed by the United States Constitution.   Washington federal courts too often want to “make  state law” by construing state statute or developing state common law as matters of first impression.  What often happens federal judges usurp the jurisdiction of state courts to decide state law so as seek to protect the interests of federal and national entities at the expense of local state interests, which have traditionally protected state property owners from fraud and injustice.  This frustrates Washington’s appropriate and constitutional interests in protecting Washington homeowners and their land.”

Attorney Stafne: Our Constitution contemplates a federal system of governing. The United States Constitution gives the federal government limited powers. Those powers which are not given to the federal government are reserved to the States.

The Constitution contemplates each State will have its own sovereignty. The limited powers given to the federal government were designed so as to not interfere with the core sovereignty of a State government. There is no core sovereignty more fundamental than that of State to control the distribution of land within its borders.

The Supremacy Clause requires that when the federal government acts within its limited, enumerated powers its laws are supreme; meaning that that any provision of state law, including State Constitutional provisions, to the contrary to a validly enacted federal law are void. But State laws involving the distribution of lands within the State are within the core sovereignty of the States and beyond the authority of Congress to regulate.  The Supremacy Clause is very specific. Only federal law, i.e. statutes, and treaties enacted pursuant to the Constitution’s enumerated powers are supreme.

Federal courts decisions are supreme only to the extent to the construe federal law, which law includes only the United States Constitution and statutory law, and a very small body of federal common law. Federal court decisions construing state law are not supreme. The highest court of each State is the final arbiter of the meaning of State law. Under our nation’s dual sovereignty system of government federal courts cannot intrude on any State’s right to interpret its own laws, particularly in an area where the federal Constitution protects State sovereignty.

When the foreclosure meltdown began federal banks, government service entities (like Fannie Mae and Freddie Mac), and servicers sought the protection of federal courts against those borrowers who sued to prevent wrongful foreclosure. Rather, than certify unresolved issues regarding the construction of the Deeds of Trust Act and Washington’s Constitution to the Washington Supreme Court, federal courts decided to construe Washington law themselves.

In my opinion this was an abuse of power by the federal courts because Washington’s Constitution, like those of many States, specifically legislates with regard to the State government’s authority to dispose of real property within its borders. Federal courts lacked authority to construe the meaning of Washington’s constitution in the first instance, but did so anyway.
In my view it is obvious Washington’s Constitution prohibits enforcement of “power of sale” clauses in deed of trust agreements through nonjudicial foreclosures.

Article II, section 28, subsection 9 of Washington’s constitution states: The legislature is prohibited from enacting any private or special laws in the following cases: (9) From giving effect to invalid deeds, wills or other instruments.
 Art. IV, section 6 of Washington’s constitution provides that all equity and at law cases involving the title and possession of real property shall be within the original jurisdiction of the superior court. This provision states in pertinent part: “The superior court shall have original jurisdiction in all cases in equity and in all cases at law which involve the title or possession of real property,…”.
History teaches us that “power of sale” clauses were not enforceable in most States and Territories of the United States during the nineteenth century. The Washington Territory followed the example of Oregon and Michigan in enacting legislation in 1969 to prevent their enforcement. Twenty years later, in 1889, the above constitutional provisions were enacted to prevent the legislature from ever allowing nonjudicial enforcement of such clauses.

There are many flaws with MERS and its legality is being questioned constantly? How this could happen – didn’t we have enough oversight of the banks or were those who supposed to oversee their work were corrupted?

Attorney Stafne: I think this economic collapse was carefully calculated as means to redistribute wealth from the middle class to the wealthy. We lost any meaningful control over the banks during the Clinton administration. By the time several of them became “too big to fail” they had effectively purchased all three branches of our government and most state governments.

How could we stop this and clean up what has occurred making sure that something like this never happens again?

Attorney Stafne: I believe Americans will have to take to the streets in order to take their country back from the empire which has replaced it. We will have to stand hand in hand and speak quietly: “Give me liberty or give me death” to stand down the evil which has overcome our land.

What is your take on multiple settlements between our government and the banks? Is not only that the banks are buying their way out of jail, but nothing has been done to help those who lost their homes via fraudulent foreclosures – the same issue which is the reason for these settlements.

Attorney Stafne: It appears obvious servicers and debt collectors simply calculate economic penalties for violating laws into their cost of doing business. That is why such companies should be made liable to those whom they injure in an amount calculated to make the injured parties whole and deter the wrongdoers from further misconduct. I believe those directing and/or participating in such criminal enterprises should jailed and/or executed (notwithstanding that I oppose the death penalty generally).

Do you think that not enough people are challenging their foreclosures or do you think that our courts are mostly in favor of the banks and people think that they don’t have a chance in proving this fraud in the court of law? Here is the new report from today (3/3/15)”
“The Warren Group reported Tuesday that the number of foreclosure starts in January was 70 percent higher than the same month in 2014, rising from 364 to 618. Foreclosures have increased over the past year because mortgage companies and lenders were waiting for several important regulations and court rulings to be resolved.”

Attorney Stafne: I don’t believe people have much chance. I do not believe our courts are fair or just in this and many other areas of the law.