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Jeff

If ones state is a judcial foreclosure state (FL), what determines wheather it uses prudential standing, or, consitutional standing in determining the banksters standing to foreclose?

 

And, what is the difference between the two?

 

The reason that I am asking is from a ME case, MERS v Saunders;

 

"Here, MERS sought to foreclose on the Saunderses' mortgage by filing a lawsuit, and, like any other plaintiff filing suit within our courts, must prove its standing to sue. Halfway House, 670 A.2d at 1379. Because standing to sue in Maine is prudential, rather than of constitutional dimension, we may "limit access to the courts to those best suited to assert a 297*297 particular claim." Lindemann v. Comm'n on Govtl. Ethics & Election Practices, 2008 ME 187, ¶ 8, 961 A.2d 538, 541-42 (quoting Roop v. City of Belfast, 2007 ME 32, ¶ 7, 915 A.2d 966, 968). In the present context, MERS, as the complaining party, must show that it has suffered an injury fairly traceable to an act of the mortgagor and that the injury is likely to be redressed by the judicial relief sought. See Collins v. State, 2000 ME 85, ¶ 6, 750 A.2d 1257, 1260 (citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); see also Stull, 2000 ME 21, ¶ 11, 745 A.2d at 979."

 

http://scholar.google.com/scholar_case?case=14224889172679208203&q=mers+v+saunders&hl=en&as_sdt=2,10

 

 

 

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topguncrdtadvsr
I went on a search--This is what I've come up with thus far. I would definitely read  Prudential Limitations and what comes after it if not the whole thing!

http://www.answers.com/topic/standing-to-sue


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Read the new Hawaii case - Deutche Bank as Trustee lost standing based on priopr history involving a bankrupt entity. Good discussion of prudential v. constitutional standing. I've always thought that any Article III court must perceive both to have a case, but what do I know.

Think of the distinction in this way: Prudential standing has to do with whether you are fighting your own battle or not. Constitutional standing has to do with the nature of your claim and whether its stated as a claim on which the court is able to afford relief. Rule 12(b)(1) v. Rule 12(b)(6). Big hairy deal - if you are not the right party,  you're out. If you want the court to bring your grandmother back to life, you're out.

http://deadlyclear.files.wordpress.com/2012/03/williamses-order.pdf




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Jeff

Vermont, Thanks for the post much apprecited .Jeff

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t

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Think of the distinction in this way: Prudential standing has to do with whether you are fighting your own battle or not. Constitutional standing has to do with the nature of your claim and whether its stated as a claim on which the court is able to afford relief. Rule 12(b)(1) v. Rule 12(b)(6). Big hairy deal - if you are not the right party, you're out. If you want the court to bring your grandmother back to life, you're out.

http://deadlyclear.files.wordpress.com/2012/03/williamses-order.pdf

 

Vermont Trotter's explanation of the distinction between prudential standing and Constitutional standing is legally erroneous and shows that Vermont's understanding of the law is every bit as deficient as when he argued his case before the Idaho Supreme Court.

 

Article III Constitutional standing is a restraint upon the authority and power of United States (federal) courts.  It is never a restraint upon the authority of state courts.

 

However, in many states there are similar state constitutional restraints upon the authority of state courts.  These are often found in so-called open courts provisions of the state constitution.  In those states where such restraints are in place and expressly recognized by the state's courts, standing is usually a constitutional imperative.

 

In those places where the state constitution lacks such a provision or where the courts have not found such a provision to operate as a restraint on judicial authority, the standing requirement is often found merely to be a rule rather than a constitutional restraint.  Like other rules, such a rule can therefore be waived.

 

Mr. Roper has discussed this repeatedly in posts dating back to 2007.

 

The Rule 17 real party at interest requirement is a rule.  In those places where the state constitution requires a justiciable controversy, a standing argument presents a challenge to the court's subject matter jurisdiction.

 

A real party at interest argument is always based upon a rule.  EVERYWHERE.

 

Where standing is a constitutional imperative, the argument that a plaintiff lacks standing is a jurisdictional argument.  Where standing is merely prudential -- based upon rules -- rather than constitutional, the court can look past the rule, based upon other competing and conflicting rules.  The argument can also be waived when based upon the rules.

 

See Mr. Roper's excellent posts on this subject and disregard the erroneous material posted by this ignorant individual Vermont Trotter!

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Jeff
t, thank you for taking the time to ~ahhh to claify and to set the record straight~ also re .. quote.. "See Mr. Roper's excellent posts on this subject and ..."
 
prior to submitting my question I used the 'search feature' using "prudential standing" in combination with "constitutional standing' and did get many many thread topics but when explored they did not actually reference the search terms ~ as i was looking to find Mr. Roper's post.  Do you by any chance know of the exact thread name or link?
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t

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prior to submitting my question I used the 'search feature' using "prudential standing" in combination with "constitutional standing' and did get many many thread topics but when explored they did not actually reference the search terms ~ as i was looking to find Mr. Roper's post. Do you by any chance know of the exact thread name or link?
 

Your search might have been too restrictive.  Also, note that you can search either within threads or within posts.  The posts search is more restrictive, but can get you more directly to the desired answer using thoughtful search terms.

 

Mr. Roper's early posts explained the constitional issue mostly in comparison to the Rule 17 real party at interest argument, but without expressly using the term prudential standing.  A careful reading shows that the issues and arguments are the same even as the nomenclature and explanation has slightly evolved.

 

Here are some posts that I think may aid in your understanding of the issues:

 

Thread: "Judge halts foreclosures".  See Mr. Roper's post of 12/10/07 at 02:07 AM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=22400915&postcount=12

 

See also the post of 12/09/07 at 10:34 PM within this thread.


Thread:  "Some Interesting Recent Ohio Cases on Standing".  See Mr. Roper's post of 01/02/08 at 06:12 AM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=22856549&postcount=1


Thread:  "Clearing the Ohio Federal Court Dockets of Foreclosures".  See Mr. Roper's post of 01/22/08 at 04:44 PM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=23336351&postcount=11


Thread:  "The Conditions Precedent Affirmative Defense".  See Mr. Roper's post of 01/23/11 at 03:25 PM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1266980636&postcount=4


Thread:  "Assignment of Mortgage".  See Mr. Roper's post of 04/23/10 at 11:59 AM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=39938090&postcount=12


Thread:  "An Ohio Appellate Case Reinforcing the Holding in Byrd: Bank of N.Y. v. Gindele".  See Mr. Roper's post of 05/30/10 at 03:55 PM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=40464064&postcount=3


Thread:  "Florida Appellate Court Reverses Summary Judgment in Riggs v. Aurora Loan Servs., LLC" .  See Mr. Roper's post of 06/23/10 at 02:32 AM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=40768737&postcount=8


Thread:  "Maine Supreme Court Finds MERS Not a Mortgagee Under Maine Law".  See Mr. Roper's post of 08/14/10 at 01:57 AM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=41449727&postcount=1


Thread:  "FORECLOSURE NJ~ RUNNING OUT OF TIME AND WE NEED A GOOD LAWYER WILLING TO FIGHT FOR US".  See Mr. Roper's post of 09/01/10 at 07:02 PM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=41701323&postcount=18


Thread:  "The Conditions Precedent Affirmative Defense".  See Mr. Roper's post of 01/23/11 at 03:25 PM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1266980636&postcount=4


Thread:  "Terrific New CT Decision Reaffirms Necessity of Standing at Commencement: Park National Bk v. 3333 Main, LLC".  See Mr. Roper's post of  04/17/11 at 01:38 AM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1268163243&postcount=1


Thread:  "Tenacious Ohio Pro Se Litigant Dick DAVET Loses Another Case in the Ohio Court of Appeals".  See Mr. Roper's post of 06/16/11 at 01:44 PM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1269061131&postcount=8


Thread:  "History being shaped in Ohio".  See Mr. Roper's post of 06/27/11 at 02:06 AM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1269173509&postcount=5


Thread:  "Indiana Appellate Decision Affirming SJ Shows Some Defendant Mistakes: Hutchens v. BAC Home Loans Servicing, LP".  See Mr. Roper's post of 06/29/11 at 02:41 AM:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1269200960&postcount=1

 

*

 

See also ka's post of 12/30/11 at 03:50 AM within thread "UCC - Wrongful foreclosure":


http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1271589928&postcount=2

 

Basically, you will see that Mr. Roper noted early that litigants were making the wrong argument in Ohio and sought to get defendants back on course.

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Jeff

t ~ unthink????~ thank you!!!  can i ask the search 'term' used to generate this list?

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Jeff

t, a great suggestion to use the "posts" feature! And, well actually 'thanks' is not enough for the time/effort in not only posting the thread link, but, also the date and time for each post~but it is very much appreciated!

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Clyde

Quote:

t ~ unthink????~ thank you!!! can i ask the search 'term' used to generate this list?

 

I cannot speak for t, but sometimes you just need to experiment a little with search terms.  That search by post feature is a neat trick!

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Mort
A former participant here at the Forum presented a summarization of prior posts by Mr. Roper which inform our understanding of Constitutional versus prudential standing in this thread:

Quote:
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prior to submitting my question I used the 'search feature' using "prudential standing" in combination with "constitutional standing' and did get many many thread topics but when explored they did not actually reference the search terms ~ as i was looking to find Mr. Roper's post. Do you by any chance know of the exact thread name or link?

Your search might have been too restrictive. Also, note that you can search either within threads or within posts. The posts search is more restrictive, but can get you more directly to the desired answer using thoughtful search terms.

Mr. Roper's early posts explained the constitional issue mostly in comparison to the Rule 17 real party at interest argument, but without expressly using the term prudential standing. A careful reading shows that the issues and arguments are the same even as the nomenclature and explanation has slightly evolved.

Here are some posts that I think may aid in your understanding of the issues:



Thread: "Judge halts foreclosures". See Mr. Roper's post of 12/10/07 at 02:07 AM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=22400915&postcount=12

See also the post of 12/09/07 at 10:34 PM within this thread.


Thread: "Some Interesting Recent Ohio Cases on Standing". See Mr. Roper's post of 01/02/08 at 06:12 AM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=22856549&postcount=1


Thread: "Clearing the Ohio Federal Court Dockets of Foreclosures". See Mr. Roper's post of 01/22/08 at 04:44 PM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=23336351&postcount=11


Thread: "The Conditions Precedent Affirmative Defense". See Mr. Roper's post of 01/23/11 at 03:25 PM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1266980636&postcount=4


Thread: "Assignment of Mortgage". See Mr. Roper's post of 04/23/10 at 11:59 AM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=39938090&postcount=12


Thread: "An Ohio Appellate Case Reinforcing the Holding in Byrd: Bank of N.Y. v. Gindele". See Mr. Roper's post of 05/30/10 at 03:55 PM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=40464064&postcount=3


Thread: "Florida Appellate Court Reverses Summary Judgment in Riggs v. Aurora Loan Servs., LLC" . See Mr. Roper's post of 06/23/10 at 02:32 AM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=40768737&postcount=8


Thread: "Maine Supreme Court Finds MERS Not a Mortgagee Under Maine Law". See Mr. Roper's post of 08/14/10 at 01:57 AM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=41449727&postcount=1


Thread: "FORECLOSURE NJ~ RUNNING OUT OF TIME AND WE NEED A GOOD LAWYER WILLING TO FIGHT FOR US". See Mr. Roper's post of 09/01/10 at 07:02 PM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=41701323&postcount=18


Thread: "The Conditions Precedent Affirmative Defense". See Mr. Roper's post of 01/23/11 at 03:25 PM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1266980636&postcount=4


Thread: "Terrific New CT Decision Reaffirms Necessity of Standing at Commencement: Park National Bk v. 3333 Main, LLC". See Mr. Roper's post of 04/17/11 at 01:38 AM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1268163243&postcount=1


Thread: "Tenacious Ohio Pro Se Litigant Dick DAVET Loses Another Case in the Ohio Court of Appeals". See Mr. Roper's post of 06/16/11 at 01:44 PM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1269061131&postcount=8


Thread: "History being shaped in Ohio". See Mr. Roper's post of 06/27/11 at 02:06 AM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1269173509&postcount=5


Thread: "Indiana Appellate Decision Affirming SJ Shows Some Defendant Mistakes: Hutchens v. BAC Home Loans Servicing, LP". See Mr. Roper's post of 06/29/11 at 02:41 AM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1269200960&postcount=1


*

See also ka's post of 12/30/11 at 03:50 AM within thread "UCC - Wrongful foreclosure":

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1271589928&postcount=2


Basically, you will see that Mr. Roper noted early that litigants were making the wrong argument in Ohio and sought to get defendants back on course.


Mr. Roper was explaining and distinguishing these concepts two years before the In Re Veal decision. If you carefully read Mr. Roper's posts, you will find that he identified the precise errors being made both by defendants and the Ohio courts five years before the Schwartzwald decision. Read the older posts and see if you can find even a hair of a distinction between Mr. Roper's articulation of the law and the holding in Schwartzwald. What one actually discovers is that the Schwartzwald is a complete vindication of Mr. Roper's position and shows that he was exactly right all along. By contrast, Ohio foreclosure defense attorneys were mostly getting this argument wrong.

There is another lesson there for Florida litigants. Mr. Roper's enunciations of the correct law in Ohio was absolutely contrary to what the appellate cases in Ohio were saying before Schwartzwald. Basically, Mr. Roper stood his ground and said that defendants needed to make the correct argument, even if this seemed to be contrary to the appellate holdings in Ohio. If a defendant fails to make the [u]correct argument that argument can be considered to be waived and not preserved for appellate review.[/i]

Incompetent Florida attorneys continue to make incorrect and legally erronoeus arguments in Florida in respect of standing, affirmative defenses (generally) and MERS. Because they are making the wrong arguments, the correct arguments never go up on appeal and are never preserved for presentation on appeal to the Florida Supreme Court.
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