Locus Standi, better known as Standing

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Locus standi, better known in modern common legal terms as standing, is the term used for the ability of a party, in a legal dispute, to demonstrate to the presiding court sufficient connection to and harm from the law or action challenged to support that particular party’s participation in the case.

In other words, in a foreclosure procedure, if a bank, financial institution, beneficiary, or a party acting for or on behalf of the beneficiary must be able to prove to the court that they by law have the right to foreclose on the property. This small legal issue has become tantamount in today’s foreclosure litigation.

First and foremost in the court of law in the United States the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/she/it is or will “imminently” be harmed by the law. Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. To have a court declare a law unconstitutional, there must be a valid reason for the lawsuit. The party suing must have something to lose in order to sue unless it has automatic standing by action of law.

The Supreme Court has stated, “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”

There are a number of requirements that a plaintiff must establish to have standing before a federal court. Some are based on the case or controversy requirement of the judicial power of Article Three of the United States Constitution, § 2, cl.1. As stated there, “The Judicial Power shall extend to all Cases . . .[and] to Controversies . . .” The requirement that a plaintiff have standing to sue is a limit on the role of the judiciary and the law of Article III standing is built on the idea of separation of powers.Federal courts may exercise power only “in the last resort, and as a necessity”.

The American doctrine of standing is assumed as having begun with the case of [Frothingham v Mellon (1923)]. This case became consolidated and was litigated at the United States Supreme Court under [Massachusetts v. Mellon, 262 U.S.447 (1923)]. However, legal standing truly rests its first prudential origins in [Fairchild v Hughes, (1922)], which was authored by Justice Brandeis.In Fairchild, a citizen sued the Secretary of State and the Attorney General to challenge the procedures by which the Nineteenth Amendment was ratified. Prior to it, the doctrine was that all persons had a right to pursue a private prosecution of a public right.Since then the doctrine has been embedded in judicial rules and some statutes.

In 2011, in Bond v United States, the U.S. Supreme Court held that a criminal defendant charged with violating a federal statute does have standing to challenge the constitutionality of that statute under the Tenth Amendment.

There are three causes that the law recognized for standing.

There are three standing requirements:

  1. Injury-in-fact:The plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent (that is, neither conjectural nor hypothetical; not abstract).The injury can be either economic, non-economic, or both. The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified. This is called the “something to lose” doctrine, in which the party has standing because they will be directly harmed by the conditions for which they are asking the court for relief.
  1. Causation:There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. The party is not directly harmed by the conditions by which they are petitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation, and the continued existence of the harm may affect others who might not be able to ask a court for relief. In the United States, this is the grounds for asking for a law to be struck down as violating the First Amendment, because while the plaintiff might not be directly affected, the law might so adversely affect others that one might never know what was not done or created by those who fear they would become subject to the law – the so-called “chilling effects” doctrine.
  2. Redressability:It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury. The party is granted automatic standing by act of law. Under some environmental laws in the United States, a party may sue someone causing pollution to certain waterways without a federal permit, even if the party suing is not harmed by the pollution being generated. The law allows them to receive attorney’s fees if they substantially prevail in the action. In some U.S. states, a person who believes a book, film or other work of art is obscene may sue in their own name to have the work banned directly without having to ask a District Attorney to do so.

The chilling effects, in a legal context, is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. The right that is most often described as being suppressed by a chilling effect is the US constitutional right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is called “libel chill”. A lawsuit initiated specifically for the purpose of creating a chilling effect may be called a Strategic Lawsuit Against Public Participation, or more commonly, a “SLAPP suit“.

“Chilling” in this context normally implies an undesirable slowing. Outside the legal context in common usage; any coercion or threat of coercion (or other unpleasantries) can have a chilling effect on a group of people regarding a specific behavior, and often can be statistically measured or be plainly observed. For example, the news headline “Flood insurance [price] spikes have chilling effect on some home sales,” and the abstract title of a two‐part survey of 160 college students involved in dating relationships: “The chilling effect of aggressive potential on the expression of complaints in intimate relationships.”

As a certified Forensic Loan Securitization Auditor, I have come to find that standing can be the first motion brought against a party in a foreclosure litigation or an Unlawful Detainer action. I have reviewed loans from across the United States and find that in nearly all of the foreclosure actions the party acting against the homeowner has no legal claim against the property. This is not to say that the courts will automatically rule in your favor on this issue, as there is corruption at all levels of the judicial system, however, now the proof for this is fairly easy to find.

State law on standing differs substantially from federal law and varies considerably from state to state. More recently, on December 29, 2009, the California Court Of Appeal for the Sixth District ruled that California Code of Civil Procedure Section 367 cannot be read as imposing a federal-style standing doctrine on California’s code pleading system of civil procedure. In California, the fundamental inquiry is always whether the plaintiff has sufficiently pleaded a cause of action, not whether the plaintiff has some entitlement to judicial action separate from proof of the substantive merits of the claim advanced.The court acknowledged that the word “standing” is often sloppily used to refer to what is really jus tertii, and held that jus tertiiin state law is not the same thing as the federal standing doctrine.

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©2014-2019 Doug Boggs All Rights Reserved

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