Habeus Corpus For Squatters

Habeas Corpus, literally in Latin "you have the body" is a term that represents an important right granted to individuals in America. Basically, a writ of habeas corpus is a judicial mandate requiring that a prisoner be brought before the court to determine whether the government has the right to continue detaining them. The individual being held or their representative can petition the court for such a writ.

Lately there is some hubub about whether lenders need to produce the original documents in order to foreclose. The basic idea is that a payee has to provide the bank with the original cheque daft in order to be credited funds. It seems that since mortgages can be bought and sold, they are considered currency or at least a negotiable instrument (according to the Uniform Commercial Code, and that triggers certain other laws that the banks thought they were above.

Congresswoman Marcy Kaptur of Ohio recommends forcing lenders to do the same if they want to take possession of you home. Show the original contract. If not, she recommends
squatting and keeping your house if they try to foreclose.

“So I say to the American people, you be squatters in your own homes. Don’t you leave.”

She criticizes the bailout’s failure to protect homeowners facing foreclosure. Her advice to “squat” cleverly exploits a legal technicality within the subprime mortgage crisis. These mortgages were made, then bundled into securities and sold and resold repeatedly, by the very Wall Street banks that are now benefiting from TARP (the Troubled Asset Relief Program). The banks foreclosing on families very often can’t locate the actual loan note that binds the homeowner to the bad loan. “Produce the note,” Kaptur recommends those facing foreclosure demands of the banks.

“[P]ossession is nine-tenths of the law,” Rep. Kaptur told me. “Therefore, stay in your property. Get proper legal representation ... [if] Wall Street cannot produce the deed nor the mortgage audit trail ... you should stay in your home. It is your castle. It’s more than a piece of property. ... Most people don’t even think about getting representation, because they get a piece of paper from the bank, and they go, ‘Oh, it’s the bank,’ and they become fearful, rather than saying: ‘This is contract law. The mortgage is a contract. I am one party. There is another party. What are my legal rights under the law as a property owner?’

“If you look at the bad paper, if you look at where there’s trouble, 95 to 98 percent of the paper really has moved to five institutions: JPMorgan Chase, Bank of America, Wachovia, Citigroup and HSBC. They have this country held by the neck.”

So who holds those negotiable instruments anyway? And if you pay your mortgage to BofA, WAMU, or whoever, can the person who gets their hands on the physical mortgage documents make claim to your property REGARDLESS IF YOU HAVE BEEN PAYING YOUR MORTGAGE?

I do love the smell of napalm in the morning.