Due Process Violations and Railroading: California’s and Nevada’s Unconstitutional Foreclosure vs. Florida’s Judicial Remedy

In the modern mortgage and foreclosure landscape, few issues more clearly expose the divide between constitutional governance and administrative overreach than the foreclosure processes implemented by the states. Florida, California, and Nevada each represent fundamentally different paths — and philosophies — when it comes to property rights, due process, and lawful standing.

At stake: the entire framework of property law, equity, and contract. This article explains the alarming erosion of constitutional protection in non-judicial foreclosure states and presents Florida as a rare example of due process preserved.

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⚖️ Judicial vs. Non-Judicial Foreclosure: Two Systems, Two Realities

The foundational difference lies in whether a foreclosure requires court intervention.

• Florida is a judicial foreclosure state.

• California and Nevada are non-judicial foreclosure states.

In a judicial foreclosure state like Florida, homeowners have access to:

• Court-supervised proceedings

• A verified complaint from the bank

• A right to respond and be heard

• The requirement that lenders prove standing

• Due process before property can be taken

This is how it should be in a Living Republic — where rights and remedies are adjudicated under law, and not bypassed through administrative shortcuts.

In contrast, non-judicial foreclosure states rely on private corporate procedure, not judicial process. In California and Nevada:

• Banks can appoint their own trustee

• No lawsuit or court appearance is required

• The home is sold at auction after a mailed notice

• No judge ever reviews the evidence before the home is seized

This process — though “legal” by state statute — is wholly unconstitutional when measured against the federal guarantees of due process, equity, and judicial remedy.

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⚠️ Procedural Violations and Legal Railroading in California & Nevada

When corporations foreclose without a court, homes are taken by private fiat. This violates not only property rights but core constitutional principles.

The courts have made this clear:

“A judgment rendered by a court lacking subject matter jurisdiction is void ab initio.” — Patton v. Diemer, 518 N.E.2d 941 (Ohio 1988)

“A party lacks standing to invoke the jurisdiction of a court unless he has a real interest in the subject matter.” — Lebanon Correctional Institution v. Court of Common Pleas, 35 Ohio St.2d 176 (1973)

In non-judicial states, banks initiate foreclosure with no requirement to prove:

• Ownership of the mortgage note

• Proper assignment of interest

• Compliance with contract law

• Performance under Truth in Lending or Fair Debt Collection statutes

Even when fraud is present, or no original wet-ink contract exists, the trustee’s sale moves forward.

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🛡️ Trusts, UCC Filings, and Private Contracts Ignored

Private Americans often attempt to shield their equity through lawful means:

• Holding title in a private, irrevocable trust

• Filing a UCC-1 Financing Statement to perfect their security interest

• Tendering a lawful bill of exchange or negotiable instrument to discharge the alleged debt

But in California and Nevada, unless you sue after the foreclosure, the administrative process ignores all of it.

This violates both state and federal law:

“A trust… must be represented by counsel and cannot proceed pro se.” — United States v. High Country Broadcasting Co., 3 F.3d 1244 (9th Cir. 1993)

“An individual may appear in propria persona only for himself.” — C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th Cir. 1987)

When private trusts or secured parties are ignored, secured interests under UCC Article 9 and contractual rights under Article 3 are also disregarded — leaving remedy to those who can afford expensive litigation after the damage is done.

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🏛️ Florida: The Firewall of Judicial Oversight

In Florida:

✅ Foreclosure must go through court
✅ The bank must prove standing
✅ The borrower may challenge the note, the accounting, or the chain of title
✅ Judges are required to review evidence and apply equity

This structure preserves the Republican Form of Government guaranteed under Article IV, Section 4 of the U.S. Constitution.

Florida also honors:

• UCC filings

• Trust-held title

• Affidavits as prima facie evidence (per U.S. v. Kis, 658 F.2d 526)

• Truth in Lending (15 U.S.C. § 1601) and FDCPA (15 U.S.C. § 1692)

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💣 Mortgage Fraud, Corporate Overreach, and Contract Abuse

The courts have also ruled strongly against fraudulent lending and ultra vires contracts:

“Wells Fargo does not own the mortgage loan… matter dismissed with prejudice.”
— Wells Fargo, Litton Loan v. Farmer, 867 N.Y.S.2d 21 (2008)

“EquiFirst violated Regulation Z… intentionally created fraud in the factum.”
— Deutsche Bank v. Peabody, 866 N.Y.S.2d 91 (2008)

“A national bank… cannot lend its credit… such contracts are ultra vires and not binding.”
— Howard & Foster Co. v. Citizens Nat’l Bank, 130 S.E. 758 (S.C. 1926)

When the very basis of a mortgage or promissory note is fraud, the foreclosure cannot stand — but in non-judicial states, these challenges are only heard after the foreclosure has occurred.

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📜 Contracts Without Consideration Are Void

In private equity law, any contract formed without lawful consideration is null and void:

“If any part of the consideration… be illegal… the promise is wholly void.”
— Menominee River Co. v. Augustus Spies L & C Co., 147 Wis. 559 (1912)

And when silence is used to conceal fraud:

“Silence can only be equated with fraud where there is a legal or moral duty to speak.”
— U.S. v. Tweel, 550 F.2d 297 (1977)

Banks, servicers, and trustees who fail to respond to notices, affidavits, or UCC filings are engaging in deceptive practices under color of law.

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✅ Summary: Florida Honors the Republic — California and Nevada Bypass It

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Restore the Republic

If the Republic is to stand, it must be rebuilt one court case at a time. We must:

• Challenge unlawful administrative processes

• Use private trusts and equity to protect property

• Demand judicial due process in every taking

• Refuse railroading through silent foreclosure

Let Florida’s model serve as a template — and let California and Nevada be exposed for what they are: administrative zones running foreclosure mills under color of law, at the expense of the people.

WHY IS CALIFORNIA A NON-JUDICIAL FORECLOSURE STATE?

1. Use of Deeds of Trust Instead of Mortgages

Unlike traditional mortgage states (like Florida), California uses a Deed of Trust, which involves three parties:

• Borrower (Trustor)

• Lender (Beneficiary)

• Trustee (often a neutral third party or affiliated with the lender)

This instrument includes a “power of sale” clause, which authorizes the trustee to sell the property without court involvement if the borrower defaults. That one clause is what allows non-judicial foreclosure.

2. Civil Code Section 2924

California Civil Code § 2924 et seq. governs non-judicial foreclosure. It permits:

• No judicial filing required

• No judge

• No verified complaint

• Only mailing of notices

• Trustee sale conducted like a private auction

This is an administrative process — not a judicial one — and courts do not review or approve the sale unless the homeowner sues to stop it.

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🛑 PROBLEMS WITH THIS SYSTEM

• No due process protections (no hearing, no discovery, no burden of proof)

• Private entities act with no oversight

• Trusts, UCC liens, and equitable claims are ignored unless litigated

• Many homeowners lose property without ever seeing a courtroom

This is unconstitutional when measured against:

• U.S. Constitution – 5th and 14th Amendments: Due Process

• California Constitution – Article I, Section 7: Due Process of Law

• Article IV, Section 4 of the U.S. Constitution – Guarantee of a Republican Form of Government

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🛠 HOW TO CHANGE IT

1. Amend or Repeal Civil Code § 2924

California’s legislature would need to:

• Amend the law to remove the power of sale clause

• Require judicial oversight for all property foreclosures This would return California to a judicial foreclosure state and restore due process.

2. Statewide Ballot Initiative

California allows direct democracy through ballot propositions. A constitutional or statutory amendment could be placed on the ballot via:

• Citizen signatures (statewide petition)

• Legislative referral

This would take organized effort, public education, and legal strategy.

3. Federal Constitutional Challenge

If enough evidence is presented that non-judicial foreclosure violates due process, a challenge could be brought in federal court. The argument would be that:

• California’s system deprives property without due process

• The public-private foreclosure process is state action under color of law

This could force California’s statutes to be reconsidered under constitutional scrutiny.

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✅ WHAT CAN YOU DO RIGHT NOW?

• Hold property in a private trust (for better legal positioning)

• File UCC-1 liens to establish equitable interest

• Send notices of interest or demand for disclosure

• Record Affidavits of Truth and Contract

• File quiet title or wrongful foreclosure actions if needed

• Educate others and build legal support for reform

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🔚 Bottom Line:

California’s non-judicial foreclosure model is a statutory creation that bypasses due process and enables corporate seizure of homes without judicial review.

It can be changed — but it must be challenged by those who are aware, prepared, and committed to restoring equity under the law.

Sample Complaint 

[Your Name], as Authorized Representative and Fiduciary for [Plaintiff’s Name],
Plaintiff,

v.

[Defendant’s Name(s)],
Defendant(s).

Case No.: [Case Number]

COMPLAINT TO QUIET TITLE AND FOR DECLARATORY RELIEF

INTRODUCTION

1. Plaintiff [Plaintiff’s Name] (“Plaintiff”), represented herein by their Authorized Representative and Fiduciary, [Your Name], seeks to quiet title to the real property commonly known as [Property Address] (the “Property”), legally described as follows:​

   [Insert Legal Description of Property]

2. Plaintiff asserts that a negotiable instrument was tendered to discharge the debt associated with the Property. By operation of law, this tender satisfied the obligation; however, through fraud and deception, Plaintiff was induced to sign a deed of trust.​

3. Plaintiff has since acquired said deed of trust and perfected their security interest, establishing status as the holder in due course. Consequently, the trustee’s sale is void, and all proceeds are rightfully due to Plaintiff.​

PARTIES

4. Plaintiff [Plaintiff’s Name] is the equitable owner of the Property, acting through their Authorized Representative and Fiduciary, [Your Name], and resides in [County], [State].​

5. Defendant [Defendant’s Name] (“Defendant”) is, upon information and belief, an individual or entity claiming an interest in the Property adverse to Plaintiff’s title.

JURISDICTION AND VENUE

6. This Court has jurisdiction over this matter pursuant to its equitable powers to adjudicate matters of property and contract rights.​

7. Venue is proper in this Court as the Property is situated in [County], [State].​

STANDING

14. Plaintiff has established a perfected security interest in the Property by filing a UCC-1 Financing Statement, thereby providing public notice of Plaintiff’s claim.

15. Plaintiff has assigned the security interest to the U.S. Department of the Treasury for the purpose of discharging the associated debt. ​

16. As the holder in due course of the negotiable instrument tendered for the Property, Plaintiff possesses the legal standing to enforce rights and seek remedies related to the Property

FACTUAL ALLEGATIONS

8. On [Date], Plaintiff tendered a negotiable instrument to [Lender’s Name] intended to discharge the debt associated with the Property.​

9. Despite the lawful discharge of the debt by operation of law, Plaintiff was misled through fraud and deception into signing a deed of trust in favor of [Lender’s Name].​

10. Plaintiff subsequently acquired the deed of trust and perfected their security interest, thereby establishing status as the holder in due course.​

11. On [Date], Defendant caused a trustee’s sale to be conducted, resulting in the issuance of a trustee’s deed upon sale.​

12. Plaintiff contends that the trustee’s sale is void ab initio, as the underlying debt had been discharged and Plaintiff holds a perfected security interest as the holder in due course.​

13. All proceeds from the trustee’s sale are rightfully due to Plaintiff, given their superior equitable and legal interests in the Property.​

CAUSES OF ACTION

First Cause of Action: Quiet Title

14. Plaintiff incorporates by reference paragraphs 1 through 13 as though fully set forth herein.​

15. An actual controversy exists regarding the rightful ownership and interests in the Property.​

16. Plaintiff seeks a judicial determination that their title to the Property is valid and that Defendant has no right, title, or interest in the Property adverse to Plaintiff.​

Second Cause of Action: Declaratory Relief

17. Plaintiff incorporates by reference paragraphs 1 through 16 as though fully set forth herein.​

18. Plaintiff requests a declaration that the trustee’s sale and the resulting trustee’s deed upon sale are void ab initio.​

19. Plaintiff further seeks a declaration that all proceeds from the trustee’s sale are due to Plaintiff as the rightful holder in due course with a perfected security interest.​

REQUET AND DEMAND FOR RELIEF

WHEREFORE, Plaintiff respectfully requests and demands for judgment as follows:

1. For a declaration that Plaintiff holds valid and legal title to the Property, free and clear of any adverse claims by Defendant;​

2. For a declaration that the trustee’s sale conducted on [Date] and the resulting trustee’s deed upon sale are void ab initio;​

3. For a declaration that all proceeds from the trustee’s sale are rightfully due to Plaintiff;​

4. For such other and further relief as the Court deems just and proper.​

DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury on all issues so triable.​

Respectfully submitted,

Date: [Date]

[Your Name]
Authorized Representative and Fiduciary for [Plaintiff’s Name]
[Your Contact Information]