If you are living in a state with non-judicial procedures, it also allows judicial procedures. The ONLY time the non-judicial procedure should be used is in slam dunk cases, of which there are nearly none, so the Trustee on teh Deed of Trust is violating his fiduciary duty to the homeowner when he fails to do due diligence, discovering the securitization and chain of title problem with the note and mortgage.
If your state does not have a specific procedure for converting the process to judicial, then you must do one of two things — either file suit or file an affidavit of non-compliance with TILA, RESPA and State and other Federal Laws in the county where the property is located in the recording offices where deeds and mortgages are filed. This will cloud the title and hopefully require the “lender” to step into the light and prove his case, saving you the expense and time of filing your complaint.
By forcing the “lender” to start judicial foreclosure proceedings it means that they will be required tof ile and seve a lawsuit on you. In that lawsuit they need to make certain allegations regarding the ownership of the note and mortgage and attach copies of what theya re talkilng about. IN some cases, the lender might just disaapear if you file anything in the county records that would require them to make allegations and submit documents that are fraudulent.
Filed under: CDO, currency, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: conversion from non-judicial to judicial, foreclosure defense, foreclosure offense, judicial, non-judicial |
Ron, I’m in GA, would like to talk to you about this.
Non judicial state help! The District court judges here in Las Vegas Nevada ( elected judges so they do not even have to be an atty) are throwing out thousands of peples TRO and requests for permanent injuctions which is a last ditch legal strategy to get the banks to int to court so that the homeowner can have their day in court and try and protect thier constitutional rights but the judges are THROWING THEM OUT! Even law suits w RESPA, TILA and HOEPA violations the JUDGES are THROWING them out! They are DIsmissing these cases in favor of the banks and the banks are getting awayt scott free even though they are not real parties of interest to the Note nor do they have the original Note nor are they bringing any proof that they have an interest in the Note. Its fraud all around here folks and we are left screwed by the straw man MERS! What if anything can we do when we are dealing with judges either corrupt, lazy or stupid trampling ALL over our constitutional rights to have our day in court and at the VERY least require the banks to prove they have standing to foreclose. Other states decisions do not hold weight over our courts here. HELP!
I made this suggestion back on October 3, 2008. Basically, I think all you would have to do is record a copy of your rescission letter.
Here is what I wrote:
This question is based on the California statutes listed below.
When sending the Letter of Rescission, could you also have that Notice Recorded based on the statutes below??
After your home has been sold to the previously “unknown” or “supposed” Lender, could the Borrower file a Notice of Recission based on the statutes below based on fraud??
A cloud on the title will certainly guarantee your a day in court!!
Constructive notice is notice that is imputed by law. If an instrument is recorded pursuant to a statute that makes the effect of the recording constructive notice, all persons so designated by the statute will be charged with knowledge of the contents of the instrument, unless the instrument is void, fraudulent, outside the chain of title, invalid, or not entitled to be recorded. But if an instrument not entitled to be recorded is recorded, its recordation will constitute actual notice to one who has seen it in the record; and if an incorrect instrument is recorded, its recordation gives constructive notice to subsequent purchasers and encumbrancers if the instrument is accurate enough to put the subsequent purchaser or encumbrancer on inquiry as to its inaccuracies. In order to give constructive notice to third persons, a document that affects an interest in real property must be recorded in the county where the land is situated.
Cal Gov Code 27280.
Instruments and judgments recordable; Change in ownership statement
(a) Any instrument or judgment affecting the title to or possession of real property may be recorded pursuant to this chapter.
Cal Gov Code � 27280 (2008)
Where a person had been fraudulently induced to convey her property, and shortly thereafter a notice of rescission of the conveyance upon the ground of fraud, undue influence, and want of consideration, was served upon the grantee and recorded, the recordation of such notice was authorized by this section. Dreifus v. Marx (1940, Cal App) 40 Cal App 2d 461, 104 P2d 1080, 1940 Cal App LEXIS 131.
Dreifus v. Marx, 40 Cal. App. 2d 461
Quieting Title–Deeds–Fraud–Rescission–Notice–Recordation–Statutory Construction. –In this action to cancel a deed of trust and to quiet title, where plaintiff, who was aged and infirm, was fraudulently induced to convey her property, and shortly thereafter a notice of rescission of the conveyance upon the ground of fraud, undue influence and want of consideration, which described the real property involved and was signed and acknowledged by plaintiff, was served on the grantee and recorded, the recordation of said notice was authorized by section 1158 of the Civil Code, and was sufficient to give constructive notice of a defect in the grantee’s title to defendant, who subsequently accepted a deed of trust on the property from said grantee as security for a loan.
In said action, the failure of the trial court to find that defendant had notice of the failure of consideration for the conveyance as well as of fraud, duress and undue influence was immaterial, where constructive notice of the service of notice of rescission was notice of all of the contents of such writing.
In said action, where defendant, before his negotiations for the loan were concluded and before the escrow was completed, learned that a title company had refused to insure the title to the property “because there was some discrepancy over the deed or something”, and he made no effort to determine the nature of the discrepancy, the facts of which defendant had knowledge were such as to put a person of ordinary prudence upon inquiry, and defendant was negligent in failing to take notice or discover the defect in the title, and was required to bear the loss occasioned by his own negligence.
Sal
to expand- foreclosure in non jucicial state by power of sale. Docs files with register of deed by trustee say Regiosn Bank all recorded deeds say AMsouth, which i iunderstand regiosn bought amsouth…any line of defense to buy time with this angle?
any advice how to fight a non-judicial foreclosure with a power-of-sale clause being used? the original loan was with AmSouth, then Regions bought them. there are other liens against the property supporting other deals? I have heard i could file a TILA and RESPA doc with the register of deeds to cloud things before goign to court? but don;t see any TILA or REPSA issues. any advice for fighting nonjudicial and power of sale in a deed of trust??
you can also file a “seperate” suit and ask the judge to combine the two seperate cases. this brings it back to a “judicial” process….
what would the wording look like if someone wanted to file an affidavit of non-compliance with TILA, RESPA and the State pro se?
and do you think a quiet title suit would be good to force the so called servicers to court and stop foreclosure? thanks, scott
the seminar was awesome!
Make the Lender produce a copy of the Original Promissory Note. Not a copy obtained from the Title Company, not a Lost-Note Affidavit, which would likely be a forgery on their part. The Original Note would be bar-coded. If the Lender cannot produce it, they have no legal standing on your loan until which time they do. Assert this in court, make sure the judge hears you.
CAN ANYONE HELP US…………….
Does this apply to a wrongful foreclosure after the borrower has been evicted and the property has been sold??????????????
Neil,
I have been searching for awhile a way to get a lender in a non-judicial state to abandon the non-judicial procedure and file a case in court. Your suggestion to file an affidavit of non-compliance with TILA, RESPA and other state and federal laws in the public records in the County where the property is located is a good strategy. I plan to help people implement this in non-judicial jurisdictions, such as Georgia, where I live. I will follow-up and give you some feedback on how effectively it works. Thanks again.