Foreclosure? Merely a Rebuttable Presumption

by Joe Portofino

Like all civil complaints, a foreclosure action is filled with mere allegations or presumptions, which left unrebutted, become conclusive facts. This is why it is so important to answer the complaint and plead new matter or affirmative defenses. That tells the court the presumptions are disputed and there may be a defense to defeat them.

When answering a foreclosure complaint, it is a good idea to put the court on notice that you are aware of your rights and are exercising them with your pleading. The following cases are recommended to be used in the opening paragraphs for that purpose. 

“In Heiner v. Donnan, 285 U.S. 312 (1932), the Court stated that it had “held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment.” Id., at 329. See, e. g., Schlesinger v. Wisconsin, 270 U.S. 230 (1926); Hoeper v. Tax Comm'n, 284 U.S. 206 (1931). See also Tot v. United States, 319 U.S. 463, 468 -469 (1943); Leary v. United States, 395 U.S. 6, 29 -53 (1969). Cf. Turner v. United States, 396 U.S. 398, 418 -419 (1970).

"Vlandis v. Kline, 412 U.S. 441, 446 (1973) “Statutes creating permanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments.”

Foreclosure statutes follow the rules of civil procedure, and they do not create irrebuttable presumptions. Unfortunately, nearly 90% of all foreclosure complaints go unanswered and essentially give the banksters a free house. It does not have to be that way. Understanding your state’s court rules of civil procedure will give you a much better chance of defeating a foreclosure action. 

There is more than enough evidence in the public domain of the banks’ fraudulent behavior regarding foreclosure procedures. There are also many court decisions available where the banks lost. How many hundreds of millions of dollars in fines have banks already paid the government for their illegal behavior including the fabrication of documents? That certainly creates the “presumption” that your foreclosure is also illegal. Make the bank prove otherwise by filing your answer and affirmative defenses and put the odds of victory on your side.