Are the current actions by those named as substitute trustees or acting as agents for the
beneficiary in our deeds of trust unconstitutional?
My support of an answer in the affirmative.
"The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it."
Sixteenth American Jurisprudence
Second Edition, 1998 version, Section 203 (formerly Section 256)
jg: If any state law denies one party the benefit of due process before being relieved of his property, a right guaranteed by our constitution, then that law, according to this tenet, is to be given no consideration. I think it's been argued that the constitution literally speaks to only separation from one's property BY THE GOV'T, but I don't believe (but can't 'prove') that they meant to limit the application of due process to attempts by only the government to take our property.
There's no due process when on the word of one of the parties' representative, without consideration of the rights and arguments of the other party to the agreement, the latter may be separated from his property. These particular trustees, those in our deeds of trust, owe their fiduciary to both parties, not just one, just as courts owe their objectivity to both parties before them. The evidentiary standard may be less for dot trustees than one for courts, but it still has to be met, and that includes ascertaining that an alleged assignee had something to assign. Significantly, the person making the determination that the evidentiary standard is met must be qualified to know if it is or isn't, and that itself is woefully missing in today's activities.
If states adopt laws which allow for the creation of a trust into which
a homeowner sends his land title as security for a loan (which adoption was done years ago by many states to 86 lender' problems with mortgages, briefly) and yet subsequently enact other laws which allow for the separation of the landowner from his estate, by way of that trust created, with reference only to the interests of one party to the trust, one of those laws is unconstitutional. When a dot trustee, or someone designated an "agent" for the beneficiary or otherwise acting for the beneficiary only, may take the thing put in trust by the other party for the party for whom he acts exclusively, there is either no deed of trust - or - a law which says an entirely unilateral act, that is, one without due process, separating one from his property is at odds with the earlier law providing for deeds of trust as security instruments. I dare say any such contravening state law is void.