FORECLOSURE DEFENSE: CALIFORNIA AND ARIZONA — SOMETIMES IT’S THE LITTLE THINGS THAT COUNT

The purpose of this is to confuse and confound the homeowner and any prospective attorney who sees the notice of sale or suit to foreclose. They use it because it works. Borrowers and any prospective attorney are intimidated by the array of moving chairs and parties and documents.

As I continue through this journey through the maze created by lenders, investment bankers, title agents and closing/escrow agents I keep discovering things that end up being quite interesting.

For example: In California the requirements for posting Notice of sale are very clear and yet, I am told that they are routinely ignored. This would invalidate the notice of sale on the most basic of concepts “notice,” by definition and therefore could be attacked at any time as a defect of service and jurisdiction while at the same time bring your claims under TILA, usury, identity theft, fraud, etc. California requires public and private posting as do most other states. The public part is what they ordinarily ignore. see notice-of-the-sale-thereof-shall-be-given-by-posting-a-written-notice

For example. MERS, whose legal status is dubious at best anyway inasmuch as it plainly violates the recording requirements of every state and which supposedly has not one but multiple corporate entities, one of which has been suspended from operation in California, is subject to specific instructions as to what to do with the “master Deed of Trust and what to do with the individual deed of trust, the procedures, language to be inserted etc. These too I am told are routinely ignored especially when it comes to (a) showing that you have provided a copy of the Master Deed of Trust and (b) having the proof as specifically required in the FNMA/Freddie instruction sheet. see mers3003az and mers-instructions-for-az-deed-of-trust-1

As stated in my other posts, the entire MERS concept causes, in my opinion, a separation between the alleged security instrument and provisions, the Trustee’s authority and the note, all of which end up being different people who were all “real parties in interest” receiving fees and value not disclosed in the GFE or settlement statement. In all these closings the borrower is subjected to a series of documents that hide the true nature of the transaction, the true source of funds, the true lender, and the application of funds contrary to the terms of the note.

15 Responses

  1. I wanted to know if I subpoena my lender to provide actual proof of title, and they cannot show actual deed of trust, but only a M.E.R.S. registration, am I actually the rightful owner of my property under rightful possession as I occupy and maintain the property?

    Under current MERS case precedents, will the lender not be able to foreclose because they do not actually hold deed of trust ?

    Thanks

  2. I am currently experiencing a foreclosure in which none of the paper work was filed correctly. I never received a notice of default in addition to any papers indicating my home would be sold. I contacted the lender several times and was told the loan was with the servicing company. When I contacted the servicing company I was told my file could not be located.
    Will you please help me if you can…
    Thanks

  3. Karen, how did all that turn out for you?

  4. Earthica & Karen please contact me I am ready for a class action suit with GMAC.

    homeownersrrealpeople2@gmail.com

  5. The bank did not record any assignments of the note.
    They put it in a trust. Wamu put it in thrust hy3, without
    recording in California.

    Has anyone won a case like this. Chapter 11.

  6. “For example. MERS, whose legal status is dubious at best anyway inasmuch as it plainly violates the recording requirements of every state and which supposedly has not one but multiple corporate entities, one of which has been suspended from operation in California”

    My attorney and I are baffled.
    Can someone please explain why MERS or a national bank can file suit in California when their corporation has been suspended in California?

    Thanks

  7. Question…

    I am a new attorney in California who is just becoming acclimated with the sub prime mess. I am looking to help individuals sue the banks and lending companies but have been having difficulty finding case law on the matter. I am also looking for a sample complaint or motion to use to set aside foreclosure sales for my clients.

    ANY help/guide books, etc. would be greatly appreciated.

  8. earthica: How do I reach you? GMAC and MERS are bad.

  9. Karen, I am fighting a GMAC foreclosure also, I am sui juris, no lawyers, no bankruptcy, the banks are all crooks and mortgages are a fraud from the beginning, and therefore void ab initio, , contact me if youre still having problems, im looking for others who might be interested in a class action

  10. Can someone help me in Orange County, CA? The house was originally scheduled for Trustee Sale on 6/25 and I first went the Chapter 13 route but changed my mind after reading this info. The bankruptcy was dismissed in October. I have filed for judicial review and notified GMAC, LLC that I am suing them and the File Review Meeting is now scheduled for 05/09. I also have a Motion on 12/22 to force GMAC to adjourn the foreclosure proceedings, which are now scheduled for 02/06/09.

    We built our home from the ground up and would rather tear it down than allow these thieves to steal it. Thank you.

  11. Jose, can you please contact me as soon as you can please, I would love to talk to you.

    aloanbyanna@yahoo.com

  12. Can anyone out there help me before 11/1/08. The bank, some legal team, and realtors have scared my tenants into believing they should no longer pay me but pay their rent to them. They actually told the tenants the property was foreclosed on, yet we have had no notice and the bank, reconveyance comp., and mortgage company were sent a CEASE SALE letter. No one has responded, but one month later they are scaring my tenants. I intend to send them a very strong letter letting them know they are not to address the tenants but send everything to me.
    I have been on this journey since August, I have tried unsuccessfully to file an affidavit of non-compliance, and non-response; only to be informed there is no provision for filing theses types of documents in Alameda County. I am researching everything because if the tenants start to pay the bank instead of me, they move me out of “possession” status and squeeze me out so they can “steal” my property. HELP!!!

  13. Dear Mr. Garfield,
    I commend you and all those who blog and share their experineces. I am an advocate in California that has helped, with the help of some excellent paralegals helping us in pro se and pro per scenarios. I have educational seminars just about every week, and people are tired and are willing to fight it out! I hope that I can get some seasoned and caring attorneys out here that want to help some of these people in their fight even if its for consulting puropses only. In the end the fighters will prevail!

  14. Dear Mr. Garfield,

    I had my BK discharged without prejudice by a great BK judge and now I have a great group of lawyers in VA that will do the quiet title action on both lenders, HSBC and First Magnus Financial.

    HSBC continued calling to collect on the debt and continued sending bills to my home during the whole Bk process and still does now, these people are just beyond belief.

    I had 75 families in a seminar yesterday in Maryland, and will have a new seminar next Saturday in Virginia. Now restaurant owners are calling me to set up the seminars, the local Hispanic radio stations are broadcasting the seminar as a play by play event. Things are happening and the community is very motivated, thanks again for your inspirational material, I will send you the revised Power Point presentation I use and the translated version as well.

    TO EVERYONE IN THIS BLOG, DO NOT DESPAIR, JUST IMAGINE BEING SO CLOSE TO BEING KICKED OUT OF YOUR HOME AND NOT EVEN UNDERSTANDING THE LANGUAGE, THE SYSTEM, ETC.

    PEOPLE MUST FIGHT, IT IS THE ONLY OPTION THAT WORKS, AND THE COURTS LITTLE BY LITTLE ARE GETTING IT.

    I JUST HOPE MORE LAWYERS GET A REAL PAIR AND START FIGHTING FOR THE COMMON MAN.

  15. Das ist true. I won my first round in court because the bank didn’t record the Deed of Sale until over a month after they’d issued me the Notice to Vacate. In other words, they’d attempted to take back property they did not yet legally own. And now, I’ve found they never recorded an Assignment to the Trustee who foreclosed and subsequently sold the house at auction. Legally, they have to do so in California. But also, they never recorded an Assignment to my current Lender from the original Lender when the loan changed hands four years ago. They rely on the MERS recordings, but supposedly that doesn’t hold up here in California. Even so, my MERS record does not accurately reflect when my current Lender took over my loan. FRAUD !!

    I’m in the process of gathering as much info as I can, California Civil Codes, Public Records recordings, MERS recordings, etc. Once I have all that together, I’ll take it to Legal Aid and see if they’ll take it on for me again. They won for me the first time around, and it didn’t even cost me anything. So don’t feel you can’t afford to fight this on your own. Go to Legal Aid in your area if you need to, it’s better than nothing.

    There are likely many discrepencies in any given case that you can probably catch them on, and use them to your benefit. Thre are certain timeframes they must abide by, there are date discrepencies, you name it. In my case as mentioned above, I’m hopeful I can possibly get the court to set aside the eviction, sale, and foreclosure based on the fact that they failed to record the proper assignments, and thus the Lender and the Trustee had no standing in any of this.

    I’ve found that writing letters alone to the Banks and Lenders does little good. You must assert your case in court !! Otherwise, it means nothing to them. You can have the best case in the world, but it’s meaningless unless you can get it into court. They may well have messed up on your own case, but the Burden of Proof still lies with you. As with anyone in this country, they’re innocent until proven guilty.

    Don’t necessarily wait for them to come after you. Build your case as best you can, then go on the offensive against them. Attack them from every angle you can.

    Steve
    99Libra@gmail.com

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