The Constitution of the United States
The Federal Convention convened in the State House (Independence Hall) in Philadelphia on May 14, 1787, to revise the Articles of Confederation. Because the delegations from only two states were at first present, the members adjourned from day to day until a quorum of seven states was obtained on May 25. Through discussion and debate it became clear by mid-June that, rather than amend the existing Articles, the Convention would draft an entirely new frame of government. All through the summer, in closed sessions, the delegates debated, and redrafted the articles of the new Constitution. Among the chief points at issue were how much power to allow the central government, how many representatives in Congress to allow each state, and how these representatives should be elected–directly by the people or by the state legislators.
The work of many minds, the Constitution stands as a model of cooperative statesmanship and the art of compromise.Does not the Constitution give us our rights and liberties? No, it does not, it only guarantees them. The people had all their rights and liberties before they made the Constitution. The Constitution was formed, among other purposes, to make the people’s liberties secure– secure not only as against foreign attack but against oppression by their own government. They set specific limits upon their national government and upon the States, and reserved to themselves all powers that they did not grant. The Ninth Amendment declares: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
What is meant by the term “constitution”? A constitution embodies the fundamental principles of a government. Our constitution, adopted by the sovereign power, is amendable by that power only. To the constitution all laws, executive actions, and, judicial decisions must conform, as it is the creator of the powers exercised by the departments of government.
What is the source of the philosophy found in the Constitution? The book which had the greatest influence upon the members of the Constitutional Convention was Montesquieu’s Spirit of Laws, which first appeared in 1748. The great French philosopher had, however, in turn borrowed much of his doctrine from the Englishman John Locke, with whose writings various members of the Convention were also familiar.
Are there original ideas of government in the Constitution? Yes; but its main origins lie in centuries of experience in government, the lessons of which were brought over from England and further developed through the practices of over a century and a half in the colonies and early State governments, and in the struggles of the Continental Congress. Its roots are deep in the past; and its endurance and the obedience and respect it has won are mainly the result of the slow growth of its principles from before the days of Magna Carta.
How extensively has the Constitution been copied? All later Constitutions show its influence; it has been copied extensively throughout the world.
The United States government is frequently described as one of limited powers. Is this true? Yes. The United States government possesses only such powers as are specifically granted to it by the Constitution.
What is meant by the word veto, in the President’s powers? The word is from the Latin and means “I forbid.” The President is authorized by the Constitution to refuse his assent to a bill presented by Congress if for any reason he disapproves of it. Congress may, however, pass the act over his veto but it must be by a two-thirds majority in both houses. If Congress adjourns before the end of the 10 days, the President can prevent the enactment of the bill by merely not signing it. This is called a pocket veto. (Art. I, sec. 7, cl. 2).
25-211 – Liability of community property and separate property for community and separate debts
33-401 – Formal requirements of conveyance; writing; subscription; delivery; acknowledgment; defects
33-402 – Forms for conveyances; quit claim; conveyance; warranty; mortgage
33-405 – Beneficiary deeds; recording; definitions
Article 2 – Foreclosure
33-721 – Foreclosure of mortgage by court action
33-722 – Election between action on debt or to foreclose
33-723 – Right of junior lien holder upon foreclosure action by senior lien holder
33-724 – State as party to foreclosure actions
33-725 – Judgment of foreclosure; contents; sale of property; resale
33-726 – Redemption of property by payment to officer directed under foreclosure judgment to sell the property
33-727 – Sale under execution; deficiency; order of liens; writ of possession
33-728 – Recording upon record that mortgage is foreclosed and judgment satisfied; effect
33-729 – Purchase money mortgage; limitation on liability
33-730 – Limitation on deficiency judgment on mortgage or deed of trust as collateral for consumer goods
33-807 – Sale of trust property; power of trustee; foreclosure of trust deed
33-808 – Notice of trustee’s sale
33-809 – Request for copies of notice of sale; mailing by trustee or beneficiary; disclosure of information regarding trustee sale
33-810 – Sale by public auction; postponement of sale
33-811 – Payment of bid; trustee’s deed
33-812 – Disposition of proceeds of sale
33-813 – Default in performance of contract secured; reinstatement; cancellation of recorded notice of sale
33-814 – Action to recover balance after sale or foreclosure on property under trust deed
Article 5 – Judgment Liens on Real Property
* (Homestead exception to lien enforcement (ARS 33-964(B)
Article 6 – Mechanics’ and Materialmen’s Liens
Article 7 – Personal Property Liens
ARTICLE 22 A.R.S. Section 44-1378, et seq. Foreclosure Consultants – prohibited acts and fraud against the homeowner.
– Residential Mortgage Fraud A.R.S. 13-2320
How does a deed of trust differ from a mortgage? Arizona treats deeds of trust as conveying a lien, not as conveying title. See, e.g. Brant v. Hargrove, 129 Ariz. 475 (1981) (“Commonly referred to as the lien theory, this approach views a mortgage as not passing legal title, the right of possession, or the other incidents of ownership to the grantee-mortgagee.”). Under a title theory, the creditor is permitted to enter the land upon default, but in lien states, the creditor is required to foreclose in order to obtain a right of possession. In Arizona, creditors secured either by a mortgage or a deed of trust have no right of possession pre-foreclosure. See ARS 33-703.
A deed of trust conveys legal title in real property to a third party—the trustee—to secure the performance of a contract. A.R.S. §§ 33–801(8), –805; Snyder v. HSBC Bank, USA, N.A., 873 F.Supp.2d 1139, 1153 (D.Ariz.2012). The trustee holds legal title until the loan balance is paid or the security reclaimed. See A.R.S. § 33–801(8), (10); Hatch Cos. Contracting, Inc. v. Ariz. Bank, 170 Ariz. 553, 556, 826 P.2d 1179, 1182 (App.1991) (explaining “deed of trust ‘conveys’ the trust property to a trustee who holds the property for the benefit of the beneficiary designated in the deed of trust”). In the interim, the trustee holds only “bare legal title—sufficient only to permit him to convey the property at the out of court sale.” Eardley v. Greenberg, 164 Ariz. 261, 264, 792 P.2d 724, 727 (1990) (quoting Brant v. Hargrove, 129 Ariz. 475, 480 n. 6, 632 P.2d 978, 983 n. 6 (App.1981) (internal quotations omitted). A deed of trust is therefore “ ‘[i]n practical effect … little more than a mortgage with a power to convey upon default,” ’ id. (quoting In re Bisbee, 157 Ariz. 31, 34, 754 P.2d 1135, 1138 (1988)), and the two are treated similarly. See Brant, 129 Ariz. at 480, 632 P.2d at 983 (agreeing with reasoning in Hamel v. Gootkin, 20 Cal.Rptr. 372, 374 (App.1962), that it would be unrealistic to treat deeds of trust differently from mortgages, in determining whether a deed of trust defeated a joint tenancy, where the two “perform the same basic function”).
Although the beneficiary under a deed of trust, like a mortgagee, may have an interest in the property itself, the fact remains he has no interest in the title. See Saxman v. Christmann, 52 Ariz. 149, 154, 79 P.2d 520, 522 (1938). “Such encumbrancers cannot maintain an action to quiet title, for they have no title.” Id.; see also Berryhill v. Moore, 180 Ariz. 77, 88, 881 P.2d 1182, 1193 (App.1994) ( “[A] mortgagee’s interest does not attach to the title. Rather, it attaches to the land. Thus, under Arizona law, a mortgagee cannot bring an action to quiet title because the mortgagee has no title.”) (internal citations omitted).
Biel Properties, LLC v. CRG Partners, II, LLC (2015 WL 1605657) (April 9, 2015).
Note: Berryhill and Stat-o-matic are still good law.
Pence v. Glaze, 1 CA-CV 02-0520, 1/29/04: A layman who files what may be an invalid deed of trust on a debtor’s residence because the deed of trust was not signed by the debtor’s spouse who jointly owned the residence cannot be liable for filing an invalid lien under ARS Section 33-420(a) unless the layman knows or has reason to know the deed is invalid. Such knowledge cannot be presumed on the theory that every person is presumed to know the law.
Cecelia M. and Randall Lewis v. Ann and Ray C. Debord October 6, 2014 – 2 CA-CV 2014-0004 –
Does interest in property have priority over recorded judgment?: Whether a judgment creditor may satisfy his or her judgment by executing on the judgment debtor’s real property that was transferred to a subsequent purchaser after recordation of the judgment pursuant to A.R.S. § 33-961(A) but before attachment of the information statement required under A.R.S. §§ 33-961(C) and 33-967(A). Here, the Debords acquired their interest in the property in July 2012.But the Lewises did not attach an information statement to their recorded judgment until August 2013. Because the Debords acquired their interest in the property before the Lewises complied with § 33-967(A), the Debords’ interest in the property has priority over the Lewises’ judgment lien. Accordingly,the Lewises cannot satisfy their judgment by executing on the Debords’ property. The trial court therefore did not err in granting summary judgment in favor of the Debords. See Ochser, 228 Ariz. 365, ¶ 11, 266 P.3d at 1065;Pi’Ikea, 234 Ariz. 284, n.7, 321 P.3d at 454 n.7 Read Opinion.
Tax liens: Daystar vs Maricopa County Treasurer (Az Ct App, Div One 5-6-04) good review of tax liens statutes and governing law.
Predatory Lending: A recent New Jersey appeals court decision could spark a series of lawsuits against lenders and extend liability for predatory practices all the way up the mortgage food chain.
The Appellate Division of New Jersey Superior Court ruled in Associates Home Equity Services Inc. v. Troup that borrowers can sue lenders for “reverse redlining,” the practice of using race, income, and other demographic information to target high-cost loans to certain neighborhoods. It also said lenders buying loans in the secondary market could be held responsible for the actions of the loan’s originator.
Attorney General’s re predatory lending and other scams.
Living Will – Sample
I established this web site for two reasons. First, as part of our dedicated effort to serve our clients in the most timely and economic fashion possible. Second, to act as a reference tool for anyone seeking basic information about Arizona real property or Federal bankruptcy laws. Whenever retaining an attorney every client has certain rights and responsibilities. Both you and your attorney must be committed to honoring the following…
-Diane L. Drain
Arizona is facing a crisis of unlicensed people and companies who are offering very bad legal advice and producing bungled legal paperwork. As a direct result of this incompetent work the courts are facing a crisis number of poorly informed individuals.
In most cases the attorney’s fees are less than those that are ultimately charged by these “document preparation services.” See the State Bar of Arizona for more information on the UPL “unauthorized practice of law” problem facing our citizens.
Not only does the lawyer bring years of education and experience, but the State Bar of Arizona has set up a Client Protection Fund to protect the integrity of the legal profession by reimbursing losses caused by the dishonest conduct of lawyers admitted and licensed to practice in Arizona. [/sws_blockquote]
When you retain a lawyer, you are entitled to a lawyer who:
NOTE: For more information about a lawyer’s responsibilities see A Lawyer’s Creed of Professionalism, a copy of which hangs in Ms. Drain’s office. She firmly believes in and lives by these provisos.
When you retain a lawyer, you have the responsibility:
(provided by the State Bar of Arizona 602-252-4804)