Cal. Appeals Ct Steps Forward for Homeowners

Decision issued June 2, 2010:

Mabry decison on appeal california case Yeah for us!!

I’ll add to this comment later, but I wanted you all to see that one step at a time, the noose is tightening for these “Pretender Lenders.” While the issue was whether contact had been made as required by California statue, the statement from the Court that “someone is lying” is going to be repeated over and over again.

This time, on appeal, there was no presumption that it was the borrower who was lying, wrong or otherwise a loser.

It was presumed that the would-be forecloser had duties set forth by statute and that if they wanted to foreclose, they had to comply with the statute and that each individual homeowner does in fact have a private right of action for public policy statutes unless the legislature specifically excludes such right. This is HUGE when applied to TILA and RESPA and Qualified Written Requests.

11 Responses

  1. Just what we were waiting for! Thanks Neil!

  2. Stanley,

    Do you know if any of those in WI were originated by GN Mortgage (later named GB Mort age)? They are no longer in business, yet foreclosing like crazy throughout the country! This company was a subdivision of Guaranty Bank out of Brown Deer, Wisconsin. They sold a lot of loans to Wells Fargo as a correspondent of loans that went to securities for a Trust that is no longer reporting…yet HSBC is also foreclosing all over the country on behalf of the Trust. Where is all that money going? In my case, the Deed of Trust is STILL in county records as GN Mortgage and they “stamped” the Note over to Wells Fargo Bank, N.A.

    After a year of dealing with Wells Fargo as my servicer, I finally got a crappy loan modification in house. Wells Fargo is claiming to be the lender and there’s a clause added to a Fannie Mae Uniform Instrument form 3161 stating that I cannot dispute the Note or the Deed of Trust…their way of covering up a bunch of fraud in the origination. I had a case that could have completely nullified the original Note and DOT, but I could never find an attorney here in California to take it on.

    I signed the modification (no notary required) and figured I still have a case since Wells Fargo Bank, N.A. is lying in the permanent modification to be the lender…and not notarized. Basically, they’re trying to steal my house and sell it again to a federal trust as stated in an included paper that came with the modification. They’re stealing from the government, and some day they will be caught or some attorneys will be willing to stand up for us. I’d rather pay an attorney for the next 10 years then give Wells Fargo another dime!

  3. Does anybody know or write about the MA process for appeals for victims of predatory lenders and a corrupt Judge?

  4. I agree completely with Angry and Not Taking It. This ruling only delays the foreclosure, and only for a short period of time.

    “The right of action is limited to obtaining a postponement of an impending foreclosure to permit the lender to comply with section 2923.5. ”

    Best case for the homeowner is that the lender rescinds the Notice of Default, sends out the required notices and attempts to contact the borrower, then 30 days later, refiles the Notice of Default.

  5. THE BEST WAY TO GET OUR POINT ACROSS TO THE JUDGES. AND IT IS ALL LEGAL. OF COURSE DO IT IN A NICE WAY TAKE THE HIGHGROUND. BE COURTEOUS.

    YOUTUBE THEM AT THEIR HOMES. GOING IN GOING OUT TRY TO INTERVIEW THEM ETC…..

    THAT IS HOW FOX (AT LEAST SOMETHING GOOD COMES OUT OF THEM) NEWS DOES IT. THEY SHOW UP IN FRONT OF THE JUDGES HOME AND INTERVIEW THEM WITH A CAMERA.

    WE DONT HAVE FOX NEWS BUT WE HAVE MYSPACE FACEBOOK ETC…

    NEVER AGAIN.

    We survived HITLER and the gas chambers Deutsche Nazi-onal Bank helped finance.

    GOD BLESS AMERICA

  6. can someone provide a link to the Complaint?

  7. BSE

    You got it.

  8. A step in the right direction yes …but far from having any teeth..[ to our detriment ,this was shall we say the gov dentist intent a toothless sissy as the mascot of homeowner rights or [ homeowner wronged is more realistically speaking ]
    Am I bitter …HELL YES!

    the decision in pertinent part…

    1 (A) May section 2923.5 be enforced by a private right ofaction? Yes.
    Otherwise the statute would be a dead letter.

    (B) Must a borrower tender the full amount ofthe mortgage indebtedness
    due as a prerequisite to bringing an action under section 2923.5? No. To hold otherwise
    would defeat the purpose of the statute.

    2 (C) Is section 2923.5 preempted by federal law? No –but, we must
    emphasize, it is not preempted because the remedy for noncompliance is a simple postponement of the foreclosure sale, nothing more.

    (D) What is the extent ofa private right ofaction under section 2923.5?
    To repeat: The right of action is limited to obtaining a postponement of an impending
    foreclosure to permit the lender to comply with section 2923.5.

    (E) Must the declaration required ofthe lender by section 2923.5,
    subdivision (b) be under penalty ofperjury? No. Such a requirement is not only not in
    the statute, but would be at odds with the way the statute is written.

    (F) Does a declaration in a notice ofdefault that tracks the language of
    section 2923.5, subdivision (b) comply with the statute, even though such language does
    not on its face delineate precisely which one ofthe three categories set forth in the declaration applies to the particular case at hand? Yes. There is no indication that the Legislature wanted to saddle lenders with the need to “custom draft” the statement required by the statute in notices of default.

    (G) If a lender did not comply with section 2923.5 and aforeclosure sale
    has already been held, does that noncompliance affect the title to the foreclosed property obtained by the families or investors who may have bought the property at the foreclosure sale? No. The Legislature did nothing to affect the rule regarding foreclosure sales as

  9. I’m going to read this right now. Thank you.

  10. The hammer will drop on Wells Fargo soon.

    BSE

  11. When is something going to happen in Wisconsin?
    Us homeowners are dieing here. There was 3 pages of Sheriff’s sales in the newspaper the other day , all by Wells Fargo Bank, who claims to be the plaintiff.
    Stanley Putra
    Racine, Wi. 53406
    262 672 2543

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