Herrera v Deutsch: CA Appeals Court Deals Death Blow to Deutsch — The House of Cards is Tumbling

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Herrera v Deutsch 5-31-11 Cal 3rd District

SEE HERRERA DECISION GOES PUBLIC MAKING IT BINDING ON OTHER COURTS

The Substitution of Trustee recites that the Bank “is the present beneficiary under” the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trial court could not take judicial notice of it. Nor does taking judicial notice of the Assignment of Deed of Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that JPMorgan Chase Bank, “successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST TO LONG BEACH MORTGAGE COMPANY” assigns all beneficial interest under the 2003 deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The truthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (StorMedia, supra, 20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute the truthfulness of the contents of all of the recorded documents.

STUNNING APPELLATE DECISION “GETS IT” AND DEALS DEUTSCH A BLOW FROM WHICH IT CANNOT RECOVER

The Rules of Evidence Finally Prevail — NO Presumptions and NO Judicial Notice

Slowly but surely, every point made on this blog, started 3 1/2 years ago, is coming true. Don’t lose hope. I knew that eventually the cards would fall the other way. The reason I knew is that the basic law being applied in this decision is inescapable. The failure of the trial judge to apply basic law was reversible error. The failure of the homeowner to properly plead his case might have had something to do with that, but the Appellate Court got the main points anyway. So here are some of the quotes that highlight the decision: (Special Thank You to Jake Naumer)

Plaintiffs Robert and Gail Herrera lost their house in South Lake Tahoe to a nonjudicial foreclosure sale. They brought suit to set aside that sale. They challenge whether the parties that conducted the sale, defendants Deutsche Bank National Trust Company (the Bank) and California Reconveyance Company (CRC), were in fact the beneficiary and trustee, respectively, under a deed of trust secured by their property, and thus had authority to conduct the sale.

Defendants also provided a declaration by a custodian of records for CRC, in which the custodian did not expressly declare that the Bank was the beneficiary and CRC the trustee. Instead, she merely declared that an Assignment of Deed of Trust and a Substitution of Trustee had been recorded and these recorded documents indicated the Bank had been assigned the deed of trust and that CRC had been substituted as trustee.

The Bank claimed to be the owner of the Property by virtue of a trustee’s deed recorded “by an entity purporting to be the trustee.”

Plaintiffs alleged CRC was not the trustee and had no authority to conduct a trustee’s sale, and believed no such sale had taken place. They further alleged any promissory note supporting the 2003 deed of trust was “time barred by the statute” and the maker, if any, “was lulled into believing that no action would be taken to enforce the 2003 [deed of trust] because no collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.”

Plaintiffs alleged the original promissory note and deed of trust no longer existed and the Bank’s deed was invalid “as it is based solely upon purported copies which have no force and effect.”

The third cause of action was to quiet title to the Property. Plaintiffs alleged defendants had no original, verifiable promissory note or deed of trust and had no standing to foreclose. They further alleged all rights, title and interest asserted by defendants “were sublimated into a non-functional `security’ instrument that gives no one entity rights in individual notes and deeds of trust.” No defendant had an interest in the Property, but they had placed a cloud upon plaintiffs’ title.

The Bank and CRC moved for summary judgment or summary adjudication on each cause of action, contending there was no triable issue of fact as to any of plaintiffs’ claims. They claimed the undisputed evidence showed that the loan was in default, the Bank was the beneficiary under the deed of trust and CRC was the trustee. The default was not cured and CRC properly noticed the trustee’s sale. Notice of the sale was sent to plaintiffs and California law did not require the original promissory note to foreclose. The Bank and CRC further contended that to quiet title, plaintiffs must allege tender, or an offer of tender, of the amount owed.

defendants [Bank and CRC] requested that the court take judicial notice of certain documents pursuant to Evidence Code sections 451, subdivision (f) and 452, subdivisions (d), (g) and (h). These documents were:
(1) the Trustee’s Deed upon Sale recorded August 13, 2008, under which plaintiffs took title to the Property;
(2) a Grant Deed recorded December 13, 2002, showing the transfer of the Property to Sheryl Kotz;
(3) the Deed of Trust recorded April 30, 2003, with Sheryl Kotz as trustor and Long Beach Mortgage Company as trustee and beneficiary (the 2003 deed of trust);
(4) an Assignment of Deed of Trust recorded February 27, 2009, assigning all interest under the 2003 deed of trust to the Bank by JPMorgan Chase Bank, as successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company;
(5) a Substitution of Trustee recorded February 27, 2009, under which the Bank substituted CRC as trustee under the 2003 deed of trust;
(6) a “Notice of Default and Election to Sell [the Property] Under Deed of Trust” recorded February 27, 2009;
(7) a Notice of Trustee’s Sale under the 2003 deed of trust recorded May 29, 2009; and
(8) a Trustee’s Deed upon Sale recorded July 6, 2009, under which the Bank, as foreclosing beneficiary, was the grantee of the Property.

plaintiffs admitted the description of the Property and that they purchased it on June 24, 2008, at a foreclosure sale; they disputed all of the remaining facts. They asserted that the Brignac declaration was without foundation and contained hearsay and that all of the recorded documents contained hearsay.

They [Plaintiffs-Homeowners] contended defendants failed to meet their burden of proof for summary judgment because their request for judicial notice and Brignac’s declaration were inadmissible hearsay. They further contended the notice of default and the notice of trustee’s sale failed to meet statutory requirements of California law. Finally, they asserted defendants lacked standing to foreclose because they had not produced even a copy of the promissory note.
Plaintiffs moved to strike the declaration of Brignac as lacking foundation and containing hearsay. They also opposed the request for judicial notice. They argued the recorded documents were all hearsay. Citing only the Federal Rules of Evidence and federal case law grounded on the federal rules, plaintiffs argued a court cannot take judicial notice of disputed facts contained in a hearsay document. Plaintiffs disputed “virtually everything” in the recorded documents, arguing one can record anything, regardless of its accuracy or correctness.

Thus, initial issues framed by the pleadings are whether the Bank was the beneficiary under the 2003 deed of trust and whether CRC was the trustee under that deed of trust.

plaintiffs contend the trial court erred in taking judicial notice of the disputed facts contained within the recorded documents. We agree.

“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. (Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) “When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable.” (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 (StorMedia).)

Defendants also relied on Brignac’s declaration, which declared that the 2003 deed of trust permitted the beneficiary to appoint successor trustees. Brignac, however, did not simply declare the identity of the beneficiary and the new trustee under the 2003 deed of trust. Instead, she declared that an Assignment of Deed of Trust and a Substitution of Trustee were recorded on February 27, 2009. These facts add nothing to the judicially noticed documents; they establish only that the documents were recorded.
Brignac further declared that “[t]he Assignment of Deed of Trust indicates that JPMorgan Bank [sic], successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, transfers all beneficial interest in connection with the [deed of trust] to Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4.” (Italics added.) This declaration is insufficient to show the Bank is the beneficiary under the 2003 deed of trust. A supporting declaration must be made on personal knowledge and “show affirmatively that the affiant is competent to testify to the matters stated.”

At oral argument, defendants contended that the recorded documents were actually business records and admissible under the business record exception. We note that Brignac did not provide any information in her declaration establishing that the sources of the information and the manner and time of preparation were such as to indicate trustworthiness. (Evid. Code, § 1271, subd. (d).)5 Information concerning this foundational element was conspicuously lacking.6 Yet, this information was critical in light of the evidentiary gap establishing the purported assignments from Long Beach Mortgage Company to Washington Mutual Bank to JPMorgan Chase Bank. The records used to generate the information in the Assignment of Deed of Trust, if they exist, were undoubtedly records not prepared by CRC, but records prepared by Long Beach Mortgage Company, Washington Mutual and JPMorgan Chase. Defendants have not shown how Brignac could have provided information about the source of that information or how those documents were prepared. (See Cooley v. Superior Court (2006) 140 Cal.App.4th 1039

the timing of those purported assignments relative to the recording of those events on the Assignment of Deed of Trust cannot be found in the Brignac declaration or anywhere else in the record.
We also note that Brignac did not identify either the February 27, 2009 Assignment of Deed of Trust, or another key document, the February 27, 2009 Substitution of Trustee, as business records in her declaration. Rather, she referenced both documents in her declaration by stating that “[a] recorded copy” was attached as an exhibit. In light of the request for judicial notice, we take this statement to mean that the exhibits represented copies of records on file at the county recorder’s office.7

had the documents reflecting the assignments and the substitution been offered as business records, there would have been no need to request that the court take judicial notice of them. Accordingly, we reject defendants’ newly advanced theory.
Brignac’s declaration is lacking in yet another way. It is confusing as to the effect of the Substitution of Trustee. She declares, “The Substitution by Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4 substitutes the original trustee, Long Beach Mortgage Company for California Reconveyance Company.” Brignac’s declaration (and defendants’ statement of undisputed facts) can be read to state that the Bank substituted Long Beach Mortgage Company for CRC as trustee, rather than that CRC was substituted for Long Beach Mortgage Company. We must strictly construe this statement against the moving party. (Mann, supra, 38 Cal.3d at p. 35.) Even if we were to construe Brignac’s declaration to state that the Bank substituted CRC as trustee under the 2003 deed of trust, it would be insufficient to establish CRC is the trustee. A declaration that the Substitution of Trustee by the Bank made CRC trustee would require admissible evidence that the Bank was the beneficiary under the 2003 deed of trust and thus had the authority to substitute the trustee. As explained ante, defendants failed to provide admissible evidence that the Bank was the beneficiary under the 2003 deed of trust.

[SUMMARY JUDGMENT FOR DEUTSCH WAS REVERSED AND REMANDED. DEUTSCH, WHO PROBABLY DOESN’T EVEN KNOW THE CASE IS PENDING, IS SCREWED]


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  3. Gary H, on August 14, 2011 at 12:18 am said:

    Update on Herrera v. Deutsche…..

    CERTIFIED FOR PARTIAL PUBLICATION*
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    THIRD APPELLATE DISTRICT
    (El Dorado)

    * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I. and III. of the Opinion.

    “The opinion in the above-entitled matter filed on May 31, 2011, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be partially published in the Official Reports and it is so ordered.”

    RAYE , P. J.
    NICHOLSON , J.
    MURRAY , J.

  4. […] Living Lies Posted in Articles, Featured Tags: Deutsch, Foreclosure, Fraud « Court Threatens BofA […]

  5. KEVIN: I am here — but I can’t chime in on every discussion. When I spot something that is of widespread concern or confusion I either write about it on the blog or talk about it in the member teleconferences. If you are looking for one on one time we have a way to do that. Write to neilfgarfield@hotmail.com and put “ONE ON ONE” in the subject matter.
    Regards
    Neil

  6. Curious,

    I have been reading these posts for at least a couple years. Does Neil ever chime in and defend a position? Neil, you there? I am in AZ and have sent many an email your direction to engage in a more direct conversation on solutions in AZ. No response. Anyone got a personal email for him?

  7. 2010 WL 5275172 (Cal.App. 3 Dist.) (Appellate Brief)
    For opinion see 11 Cal. Daily Op. Serv. 8030, 2011 WL 2136398

    Court of Appeal, Third District, California.
    Robert HERRERA and Gail Herrera, Plaintiffs and Appellants,
    v.
    DEUTSCH [SIC] BANK NATIONAL TRUST COMPANY, as Trustee for Long Beach Mortgage Loan Trust 2003-4 and California Reconveyance Company, Defendants and Respondents.

    No. C065630.

    December 9, 2010.

    [Superior Court Case No. SC20090170]
    Appeal from the Superior Court of the State of California for the County of El Dorado, Honorable Steven S. Bailey, Judge Presiding

    Respondents’ Brief

    Theodore E. Bacon, Esq., Amy L. Morse, Esq., Frances Q. Jett, Esq., Alvarado Smith, A Professional Corporation, 633 W. Fifth Street, Suite 1100, Los Angeles, CA 90071, Tel: (213) 229-2400; Fax: (213)229-2499, Attorneys for Defendants/respondents Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2003-4 and California Reconveyance Company.

    *I TABLE OF CONTENTS

    I. INTRODUCTION … 1

    II. STATEMENT OF THE CASE … 4

    A. Statement of Facts … 4

    B. Procedural History … 5

    C. Issue Presented for Review … 7

    III. STANDARD OF REVIEW … 7

    IV. ARGUMENT … 8

    A. The Trial Court Properly Granted Summary Judgment as Plaintiffs Failed to Raise Any Triable Issues of Material Fact … 8

    B. Appellants Impermissibly Attempted to Insert New Claims into the Action … 8

    C. Plaintiffs Failed to Submit Any Evidence Controverting the Facts … 10

    D. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Set Aside Trustee’s Sale Because There Were No Triable Issues of Fact … 14

    E. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Cancel Trustee’s Deed Because There Were No Triable Issues of Fact … 15

    *i F. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Quiet Title Because There Were No Triable Issues of Fact … 16

    1. Appellants Cannot Establish Any Facts Affecting the Validity of the Trustee’s Deed Upon Sale to Warrant the Remedy of Quiet Title … 17

    2. Plaintiffs Cannot Establish That They Can Tender the Amounts Owing Under the Subject DOT to Quiet Title … 18

    G. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim for Unjust Enrichment, Because Appellants Could Not Establish They Were Entitled to Recovery Any Amounts from Respondents … 18

    V. CONCLUSION … 20

    *ii TABLE OF AUTHORITIES

    State Cases

    Arnolds Management Corp. v. Eischen, 158 Cal.App.3d 575 (1984) … 18

    Dillon v. Sumner, 153 Cal.App.2d 638 (1957) … 13

    Dool v. The First National Bank of Calexico, 207 Cal. 347 (1929) … 18

    Durbin v. Fletcher, 165 Cal.App.3d 334 (1985) … 12

    First Nationwide Savings v. Perry, 11 Cal.App.4th 1657 (1992) … 19

    Havstad v. Fidelity Nat’l Title Ins. Co., 58 Cal.App.4th 654 (1997) … 8

    In re Kerner’s Estate, 275 Cal.App.2d 785 (1969) … 13

    Kroeker v. Hulbert, 38 Cal.2d 261 (1940) … 17

    Lectrodryer v. SeoulBank, 77 Cal.App.4th 723, (2000) … 19

    Moss Estate Co. v. Adler, 41 Cal.2d 581 (1953) … 17

    O’Brien v. O’Brien, 197 Cal. 577 (1925) … 18

    Robinson v. Hewlett-Packard Corp., 183 Cal.App.3d 1108 (1986) … 10

    Saldana v. Globe-Weis Systems Co., 233 Cal.A3d 1505 (1991) … 7

    Sly v. Abbott, 89 Cal.App. 209 (1928) … 17

    Trujillo v. First American Registry, 157 Cal.App.4th 628 (2007) … 12

    *iii Truslow v. Woodruff, 252 Cal.App. 2d 158 (1967) … 12

    Uriarte v. United States Pipe & Foundry Co., 51 Cal.App.4th 780 (1996) … 8

    Western Life Inso. Co., 8 Cal.App. 4th 633 (1992) … 10

    Wiener v. Southcoast Childcare Ctrs., Inc., 32 Cal.4th 1138 (2004) … 7

    State Statutes Code of Civil Procedure § 437c(e) … 12

    Federal Cases

    Farner v. Countrywide Home Loans, Case No. 08-CV-2193 BTM, 2009 WL 189025 at *2 (S.D. Cal. Jan. 26, 2009) … 16

    Rangel v. DHI Mortg. Co., Ltd., Case No. CV F 09-1035 UO GSA, 2009 WL 2190210 (E.D. Cal. July 21, 2009) … 16

    Sicairos v. NDEX West, LLC, Case No. 08-CV-2014-LAB 11223, 2009 WL 385855 at *7 (S.D. Cal. February 13, 2009) … 16

    *1 I. INTRODUCTION

    Plaintiffs-Appellants Robert Herrera and Gail Hen-era (collectively “Appellants”) purchased certain real property in August, 2008, subject to an existing promissory note and deed of trust. The borrower as to the existing promissory and deed of trust fell behind on her payments. Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2003-4 (“Deutsche Bank”) instituted foreclosure proceedings as a result, and the subject real property was subsequently sold at a trustee’s sale. Appellants complain that the trustee’s sale should be set aside, the trustee’s deed canceled and title quieted, because the defendants do not possess the original promissory note and deed of trust and because California Reconveyance Company (“CRC”) was not the trustee under the subject deed of trust and had no legal authority to conduct the trustee’s sale. (Deutsche Bank and CRC collectively referred to herein as “Respondents”.) However, Appellants’ claims lack legal and factual merit.

    First and foremost, the law does not require the production of the original note in order to render foreclosure proceedings valid. Moreover, as the undisputed facts show, since the loan secured by the subject real property was in default and CRC was the trustee of record, Appellants’ Complaint is meritless.

    Appellants’ mistaken assertions that Deutsche Bank had to be in possession of the original note and deed of trust to enforce its rights in the event of default, and CRC was not the trustee of record and therefore lacked authority to conduct the trustee’s sale, lack factual and legal merit. Moreover, Appellants’ claim for unjust enrichment fails, as Appellants cannot establish they are entitled to recover any amounts from Deutsche Bank or CRC.

    Agreeing with Respondents’ position, the trial court issued a tentative order granting Respondents’ Motion for Summary Judgment *2 (“Motion”). Despite their failure to submit any evidence in opposition to the Motion or to even appear to argue against the trial court’s tentative ruling on the Motion, Appellants took this appeal, arguing that the trial court erred in granting the Motion.

    Respondents’ Motion was correctly decided, however, and Plaintiffs-Appellants have failed to identify any error by the trial court or facts that would establish their claims against Respondents. Accordingly, this Court should affirm the lower court’s decision.

    Appellants’ first claim to set aside the trustee’s sale is based on their assertions that “CRC was not trustee and no longer had any authority to conduct the noticed trustee’s sale” and that the sale was “improperly held”. (Appellant’s Appendix (“AA”) 198:15-19.) Appellants also contend that “whatever promissory note that may have existed supporting the 2003 DOT is time barred by the statute and the maker, if she exists, was lulled into believing that no action would be taken to enforce the 2003 DOT because no collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.” (AA 190:20-24.)

    However, as argued by Defendants in their Motion, Appellants’ allegations are not supported by the undisputable facts. Appellants have absolutely no evidence to support their contentions that CRC was not the trustee, had no authority to conduct the trustee’s sale and the trustee’s sale was “improperly held”. Accordingly, the trial court correctly entered judgment in favor of Respondents.

    As with Appellants’ claim to set aside the trustee’s sale, Appellants’ claim to cancel the trustee’s deed was based on faulty allegations not supported in fact or law. And again, the trial court correctly granted judgment in favor of Respondents.

    Further, Appellants could not establish a basis to assert their third cause of action for quiet title against Respondents. Plaintiffs’ claim is *3 based upon their allegation that “no defendant has standing to foreclosure upon Plaintiffs’ property.” (AA 199:17-23.) However, this allegation is unsupported by fact and law.

    Similarly, Appellants could not establish that they were entitled to recover any amounts in connection with their claim for unjust enrichment. Appellants alleged that “should Defendants successfully claim any rights title or interest in the subject property, that Defendants pay to Plaintiffs all monies necessarily expended upon the property for back taxes, insurance, and deferred maintenance.” (AA 199:7-9.) However, as argued by Respondents, no cause of action for unjust enrichment can be asserted against them. The fact is that Deutsche Bank had a security interest in the subject real property which, upon Plaintiffs’ default of the subject loan, Deutsche Bank had the right to protect. (AA 45:22-56:8, 56:26-57:10.) Multiple payments on the subject loan were missed, and the subject loan went into default. (AA 56:17-19, 57:19-24.) Again, based on the evidence, the trial court correctly granted judgment in favor of Respondents.

    In opposing Respondents’ Motion, rather than actually addressing the substantive facts and legal arguments raised in the Motion, Appellants “opposed” the Motion by attempting to insert new claims into the action. Appellants failed to actually submit any evidence to controvert the facts, instead choosing to attack the credibility of the evidence submitted by Respondents as hearsay. (AA 53-80.) As the evidence submitted by Defendants was in fact not hearsay, Plaintiffs’ efforts were insufficient to create any disputed facts.

    Moreover, following the trial court’s issuance of its tentative ruling on the Motion, Appellants did not even make an appearance at the Motion hearing to contest the tentative ruling. (Respondents’ Appendix (“RA”) 109:1-2.)

    *4 Accordingly, Defendants respectfully request that this Court affirm the order and judgment of the lower court.

    II. STATEMENT OF THE CASE

    Plaintiffs-Appellants appeal from a judgment by the trial court following its order sustaining Respondents’ Motion for Summary Judgment. However, as reflected in the evidence submitted by Respondents in support of their Motion, Appellants failed to establish a single one of their four claims.

    A. Statement of Facts

    Plaintiffs-Appellants Robert Herrera and Gail Herrera purchased the real property commonly known as 739 Alameda Avenue, South Lake Tahoe, California (the “Subject Property”). (AA 56:9-16.) Prior to Plaintiffs’ purchase of the Subject Property, the Subject Property was owned by Sheryl Kotz (“Kotz”). (AA 55:22-56:8.) In April, 2003, Ms. Kotz obtained a loan (“Subject Loan”) in the amount of $340,000.00 from Long Beach Mortgage Company (“Long Beach”). (AA 55:22-56:8.) The Subject Loan was secured by a deed of trust (“Deed of Trust”) concerning the Subject Property. (AA 55:22-56:8.)

    On February 26, 2009, the Deed of Trust was assigned to Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4. (AA 55:6-18.) The assignment was made by JPMorgan Chase Bank, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company. (AA 58:6-18.) Also on February 26, 2009, CRC was substituted in as Trustee of the Deed of Trust. (AA 58:19-59:2.)

    On or about February 27, 2009, a Notice of Default concerning the Subject Loan was recorded with the El Dorado County Recorder as instrument number 2009-0008853-00. (AA 57:19-24.) The Notice of Default was mailed to Robert Herrera and Gale Herrera on March 4, 2009. (AA 57:25-58:5.) *5 The amount in arrears as of February 25, 2009, was $10,970.50. (AA 56:17-19, 57:8-24.) Then, on or about May 29, 2009, a Notice of Trustee’s Sale concerning the Subject Loan was recorded with the El Dorado County Recorder. (AA 59:3-7.) The Notice of Trustee’s Sale was mailed to Robert Herrera and Gale Herrera on May 28, 2009. (AA 59:8-15.) At time of the Notice of Trustee’s Sale, the unpaid balance on the Subject Loan and other charges was $366,913.94. (AA 59:24-27.) On or about June 25, 2009, the Subject Property was sold at a trustee’s sale. (AA 59:18-23.) On July 6, 2009, a Trustee’s Deed Upon Sale was recorded with the El Dorado County Recorder’s Office. (AA 59:18-23.)

    B. Procedural History

    Appellants filed the complaint initiating this litigation on August 3, 2009. (AA 196-200.) The complaint alleged four causes of action for “set aside trustee’s sale”, “cancel trustee’s deed”, quiet title, and unjust enrichment. (Id.)

    Respondents answered the unverified Complaint on September 9, 2009. (AA 189-195.)

    On October 2, 2009, Appellants served Demands for Inspection on CRC and (AA 183-188) and Deutsche Bank (RA pp. 15-19). Included in Appellants’ Demands for Inspection were demands that CRC and Deutsche Bank produce at the office of Appellants’ counsel located in Reno, Nevada, originals of various documents including the DOT. (Id.) Respondents objected to Appellants’ demands that they produce original documents and responded that they would make available for inspection, the original documents, at the Los Angeles office of its counsel. (AA 152-165, 166-179.)

    On or about January 7, 2010, Appellants filed a Motion to Compel the production of the original documents at their counsel’s office in Reno Nevada. (RA 1-35.) Respondents’ opposed Appellants’ Motion to Compel *6 (RA 36-104.) on the basis that Appellants were not entitled to the production of original documents and that, in any. event, Respondents had offered to make original documents available for inspection at the office of their counsel located in Los Angeles, California. (RA 37:13-15; 41:19-20.) The Court denied Appellants’ Motion to Compel.

    On March 2, 2010, Respondents filed the Motion for Summary Judgment (AA 138-151) along with a Request for Judicial Notice (AA 112-137), Declaration of Deborah Brignac In Support of the Motion (AA 84-111), and Separate Statement of Undisputed Facts (AA 52-83).

    On or about April 30, 2010, Appellants filed an opposition to the Motion for Summary Judgment (AA 32-40) along with a Motion to Strike the Declaration of Deborah Brignac (AA 48-51) and an opposition to the Request for Judicial notice (AA 41-47). In lieu of submitting any facts disputing Respondents’ Separate Statement of Undisputed Facts, Appellants submitted handwritten objections to the majority of Respondents’ facts. (AA 53-81.)

    On May 20, 2010, the trial court issued a tentative ruling on the Motion, granting the Motion in its entirety. (AA 21-22.) On May 21, 2010, counsel for Respondents appeared at the hearing on the Motion whereby the Court, noting there had been no request for oral argument, adopted its tentative ruling granting summary judgment as to the entire action. (AA 20-22.)

    In its tentative ruling, the trial court found “the Separate Statement in Opposition [to the Motion] does not present any evidence that raises a material fact” and overruled Plaintiffs’ hearsay objections. (AA 21.) The trial court also found that “all causes of action pled in the Complaint are equitable causes of action” and that Appellants had not offered to “pay the full amount of the debt for which the property is secured.” (Id.) Noting that the “complaint and answer are the “outer measures of materiality” on a *7 motion for summary judgment and the motion may not be granted or denied by issues not raised in the pleadings”, the trial court further found that Appellants for the first time in their Opposition to the Motion, were raising issues not raised in the Complaint or the Answer. (Id.)

    On June 2, 2010, the trial court entered judgment in favor of Respondents as to the entire action. (AA 6-7.) On June 15, 2010, Respondents served Appellants with a Notice of Entry of the Order. (AA 4-9.)

    C. Issue Presented for Review

    1. Whether the trial court properly granted summary judgment in favor of Respondents as to Appellants’ Complaint.

    III. STANDARD OF REVIEW

    Both the grant and denial of summary judgment are subject to de novo review to determine whether triable issues of material fact exist. See, Wiener v. Southcoast Childcare Ctrs., Inc., 32 Cal.4th 1138, 1142 (2004) (order granting summary judgment). Thus, while the appellate court must review a summary judgment ruling under the same general principles applicable at the trial level, the appellate court must independently determine the construction and effect of the facts presented to the trial judge as a matter of law. See, Saldana v. Globe-Weis Systems Co., 233 Cal.A3d 1505, 1511-1515 (1991).

    Appellate review of a summary judgment is limited to the facts shown in the supporting and opposing affidavits and those admitted and uncontested in the pleadings. The appellate court will consider only those facts that were before the trial court, and will disregard any new factual allegations on appeal. Facts not presented below cannot create a “triable issue” on appeal. See, *8 Havstad v. Fidelity Nat’l Title ns. Co., 58 Cal.App.4th 654, 661, (1997); Uriarte v. United States Pipe & Foundry Co., 51 Cal.App.4th 780, 791 (1996) — “Whether summary judgment is appropriate in light of a significant new factual development in any case is an issue that should first be presented to the trial court and not to an appellate court.”

    IV. ARGUMENT
    A. The Trial Court Properly Granted Summary Judgment as Plaintiffs Failed to Raise Any Triable Issues of Material Fact.

    Appellants set forth a host of arguments in their appeal. However, just as with their Opposition to the Motion, their arguments have nothing to do with either the actual claims asserted by Plaintiffs in their Complaint or with the substantive facts and legal arguments raised in the Motion.

    As with their Opposition, Appellants spend the majority of their time in their opening brief arguing claims they did not actually assert in their Complaint. In fact, rather than actually controverting a single fact of Respondents, Appellants again set forth claims and arguments that have nothing to do with their actual complaint. The only conclusion that can be drawn from Appellants’ blatant disregard for their own pleadings is that Appellants did so, in an effort, albeit however weak, to distract, first the trial court and now the appellate court, from the fundamental fact that Appellants have no evidence to support their actual claims.

    B. Appellants Impermissibly Attempted to Insert New Claims into the Action.

    As with their Opposition to the Motion, Appellants continue in their Appeal to not actually address any of the legal arguments raised in the Motion as to why Appellants could not prove their claims. Rather, *9 Appellants’ Opposition and Appeal consists of entirely new claims, none of which were asserted in their Complaint.

    For example, in their Opposition, Appellants argued the following: “The Substitution of trustee fails to meet the requirements of Civil Code § 2937 which requires NOTICE of any change in the serving agent to be given to the borrower,” and “[t]he transfers of trustee without notice violates 15 U.S.C. § 1641, et sec.” (AA 35:21.) Plaintiffs also asserted in their Opposition and for the first time in this action, that the Notice of Default “fails to meet the requirements of California law” in violation of Civil Code § 2923. (AA 36:9-25.) Plaintiffs’ next argument was that the Notice of Sale “fails to meet the requirement of California law” in violation of Civil Code § 2924(f). (AA 37:20-26.)

    None of these so-called violations had ever been asserted in this action prior to Appellants’ Opposition. Appellants alleged claims for “set aside sale”, “cancel trustee’s deed”, quiet title and unjust enrichment in their complaint, yet none of these claims are premised on the types of alleged violations asserted in Appellants’ Opposition. The crux of Appellants’ actual causes of action was that Defendants did not possess the original promissory note and trustee’s deed and CRC was not the trustee and therefore had no legal authority to conduct the subject trustee’s sale. (AA 196-200.) Nowhere in their complaint did Appellants raise the types of allegations they asserted in their Opposition and continue to assert in their appellate brief.

    As for Appellants’ argument that Respondents “lack standing” to foreclose on the subject Property because they have not produced even a copy of the Note, this is not what Appellants alleged in their complaint. They alleged in their complaint that the Trustee’s Deed should be canceled *10 because they believe the original promissory note no longer exists and therefore Defendants “lack standing” because they are not in possession of the original Note. (AA 196-200.) Appellants entirely ignored Respondents’ legal argument that no party needs to physically possess the promissory note. (AA 145-146.) Further, having lost their Motion to Compel Production of the original documents at issue, Appellants refused, and continue to refuse, to even acknowledge that Respondents actually offered to make available for inspection to Appellants at Respondents’ place of business, the original documents, including the promissory note. That Appellants chose not to take advantage of Respondents’ offer is through no fault of Respondents.

    To create a triable issue of material fact, the opposition evidence must be directed to issues raised in the pleadings. See Robinson v. Hewlett-Packard Corp., 183 Cal.App.3d 1108, 1131-1132 (1986) (issues outside the pleadings cannot be considered in opposition to the summary judgment motion); see also, Western Life Inso. Co,, 8 Cal.App. 4th 633, 639 (1992).

    Aside from the fact that Appellants did not actually present any evidence whatsoever in opposition to Respondents’ Motion, the trial court properly disregarded the entirety of Appellants’ Opposition as asserting claims outside the pleadings.

    Appellants failed and continue to fail to address any of the arguments set forth in Respondents’ Motion and thus have failed to establish any triable issues of material fact.

    C. Plaintiffs Failed to Submit Any Evidence Controverting the Facts.

    In addition to their failure to actually address the legal arguments raised in Respondents’ Motion and as further evidence of the weakness of *11 their claims, Appellants also fail to offer any evidence whatsoever in opposition to the Motion.

    In fact, in response to Respondents’ Separate Statement of Undisputed Material Facts (“Statement of Facts”), Appellants did no more than provide handwritten statements such as “Disputed, Hearsay” and “Disputed, Irrelevant as statute requires certified mail/registered.”[FN1] See, Plaintiffs’ Response to Statement of Facts.[FN2] (AA 53-80.) Appellants failed to controvert one single fact in response to the evidence submitted by Respondents instead relying almost entirely on an ill-founded attack on the Declaration of Deborah Brignac and documents attached as exhibits thereto.[FN3]

    FN1. As an example of the complete lack of foundation for Appellants’ attacks on Respondents’ Evidence, Appellants objected to Fact Nos. 9, 10, 14, 15 on the basis that such facts were “irrelevant as statute requires certified mail/registered.” (AA 57, 58, 59.) As Exhibits 3 (AA 100) and 7 (AA 107) to Deborah Brignac’s Declaration clearly demonstrated, the documents in question were indeed sent to Appellants via certified mail. It is completely disingenuous of Appellants to suggest otherwise. (AA 84-87, 100, 107.)

    FN2. Pursuant to California Rules of Court, Rule 3.1354.(b), an Opposition to Statement of Facts which includes objections to the evidence, should state the objection by referring to the objection number of separately filed objections. That Appellants’ Opposition, made up almost entirely of handwritten one and two word objections to evidence, did not include such references should come as no surprise given that Appellants failed altogether to file separate evidentiary objections.

    FN3. Rather than submitting a separate document setting forth their objections to Respondents’ Evidence, Appellants took the curious route of submitting a Motion to Strike the Declaration of Deborah Brignac. Such a motion is neither contemplated nor authorized in connection with a summary judgment motion.

    First and foremost, this approach by Appellants was insufficient to create any triable issues of material fact. In opposing a motion for summary judgment, the opposing party must do more than attack the credibility of the moving party’s evidence, they must controvert the facts *12 proved by the moving party. Code of Civil Procedure § 437c(e); Durbin v. Fletcher, 165 Cal.App.3d 334 (1985) (in light of subd. (e) of this section under which summary judgment is not to be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of summary judgment, summary judgment was properly granted to defendants in view of fact that facts recited were not contradicted by plaintiff); Trujillo v. First American Registry, 157 Cal.App.4th 628, 636 (2007).

    In opposing Respondents’ Motion, Appellants did no more than attack the credibility of Respondents’ witness and documents, while offering no evidence of their own whatsoever. On this basis alone, the trial court has sufficient grounds to grant the Motion. When no facts are filed in opposition to motion for summary judgment, the trial court is entitled to accept as true the facts alleged in movant’s affidavits if such facts are within affiant’s personal knowledge and are ones to which he could competently testify. Truslow v. Woodruff, 252 Cal.App. 2d 158 (1967). This is precisely the case here – Appellants failed to file any facts in opposition to the Motion, but rather, resorted to attacking as hearsay evidence which as set forth is obviously credible and admissible.

    Appellants’ arguments of hearsay were entirely unfounded as Ms. Brignac’s Declaration is specifically based on her personal knowledge. In fact, based on her personal knowledge as one of the custodians of record for the Subject Loan, Ms. Brignac attested to the validity of the documents attached as exhibits to her declaration and the facts contained therein – documents which she declared under penalty of perjury were true and correct copies. As such, Respondents unequivocally demonstrated Ms. Brignac’s competency to testify as to the facts contained in the documents *13 attached to her Declaration. See Dillon v. Sumner, 153 Cal.App.2d 638 (1957) (affidavit which recited that facts stated were within personal knowledge of affiant and affiant would testify as witness sufficiently showed that affiant could testify competently as to facts recited therein). Ms. Brignac set forth a clear foundation for both the information contained in her declaration, as well as the documents attached as exhibits thereto. Ms. Brignac’s declaration and the Exhibits thereto are not hearsay by any stretch of the imagination and, as such, in light of Appellants’ failure to submit any evidence disputing the facts, the Court can and should accept as true the facts attested to by Ms. Brignac. See, In re Kerner’s Estate, 275 Cal.App.2d 785 (1969) (in summary judgment proceeding in absence of counter-declarations or affidavits, trial court was entitled to accept as true facts within personal knowledge of declarants and to which they could competently testify).

    Further, contrary to Appellants’ suggestions, Respondents did not ask the trial court to grant their Motion on the basis of recorded documents alone, but rather, on the basis of documents that had been authenticated by an individual competent to so testify. As such, Appellants’ objections to Defendants’ evidence were entirely unfounded.

    Appellants apparently had no evidence to dispute Respondents’ Statement of Facts as they presented none. Appellants instead resorted to attacking the credibility of Respondents’ witness, a witness who was clearly competent to testify as to the contents of the documents in question.

    Accordingly, as Appellants provided no evidence to contravene that submitted by Respondents, and Appellants’ efforts to attack the credibility, of Respondents’ evidence failed, Respondents were entitled to summary judgment on each and every one of Appellants’ claims.

    *14 D. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Set Aside Trustee’s Sale Because There Were No Triable Issues of Fact.

    Appellants’ claim to set aside the trustee’s sale is based on their assertions that “CRC was not trustee and no longer had any authority to conduct the noticed trustee’s sale” and that the sale was “improperly held”. (AA 198:15-19.) Appellants also contend that “whatever promissory note that may have existed supporting the 2003 DOT is time barred by the statute and the maker, if she exists, was lulled into believing that no action would be taken to enforce the 2003 DOT because no collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.” (AA 198:20-24.)

    However, Appellants’ allegations are not supported by the undisputable facts.

    First, pursuant to the Deed of Trust, as the beneficiary under the Deed of Trust, Deutsche Bank had every right to name a substitute trustee, which Deutsche Bank did on February 26, 2009, when it named CRC as the trustee of the Deed of Trust. (AA 55:22-56:8, 57:11-18.) CRC thereafter noticed the Trustee’s Sale on May 29, 2009, and conducted the Trustee’s Sale on June 25, 2009. (AA 59:3-7, 18-23.) These facts are simply indisputable. Accordingly, Appellants have absolutely no evidence to support their contentions that CRC was not the trustee, had no authority to conduct the trustee’s sale and the trustee’s sale was “improperly held”.

    Moreover, Appellants’ allegations, that the promissory note is time-barred and that no actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded, are again disproved by the actual facts. First, pursuant to the Deed of Trust, upon default, as the *15 beneficiary under the Deed of Trust, Deutsche Bank had the right to invoke the power of sale. (AA 56:26-57:10.) The Notice of Default was recorded on February 27, 2009. (AA 57:19-24.) Contrary to Appellants’ allegations, Respondents’ actions in enforcing the rights of the beneficiary under the Deed of Trust were not “time barred” by some unnamed statute of limitations.

    As for Appellants’ claim that no deficiency notices were sent or recorded, again this allegation is contrary to the actual facts. The Notice of Default was recorded on February 27, 2009. (AA 57:19-24.) And a copy of the Notice of Default was mailed to both Robert Herrera and Gale Herrera on March 4, 2009. (AA 57:25-58:5.) There are simply no facts to support Appellants’ allegations and, as such, Appellants cannot prove their claim and Respondents were entitled to summary judgment.

    E. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Cancel Trustee’s Deed Because There Were No Triable Issues of Fact.

    As with Appellants’ claim to set aside the trustee’s sale, Appellants’ claim to cancel the trustee’s deed is based on faulty allegations unsupported in fact or law, The premise of Appellants’ claim is that the “original promissory note(s) no longer exist, if ever they did exist” and “Defendant’s deed is invalid as it is based solely upon purported copies which have no force or effect.” (AA 199:7-9.)

    Appellants’ assertion that Deutsche Bank improperly pursued nonjudicial foreclosure, because it could not produce the original promissory note, fails as a matter of law. Such is a standard argument proffered by plaintiffs facing foreclosure or challenging foreclosure proceedings. Courts, however, have dismissed this argument as not having a basis in law. See, e.g., *16 Farner v. Countrywide Home Loans, Case No. 08-CV-2193 BTM, 2009 WL 189025 at *2 (S.D. Cal. Jan. 26, 2009) (“there does not appear to be any requirement under California law that the original note be produced in order to render the foreclosure proceedings valid”); see also Sicairos v. NDEX West, LLC, Case No. 08-CV-2014-LAB 11223, 2009 WL 385855 at *7 (S.D. Cal. February 13, 2009) (“no party needs to physically possess the promissory note”); Rangel v. DHI Mortg. Co., Ltd., Case No. CV F 09-1035 LJO GSA, 2009 WL 2190210 (E.D. Cal. July 21, 2009).

    Case law is clear. A party need not possess the promissory note to proceed with a foreclosure. In this instance, the Subject Loan was in default, Respondents noticed the default, noticed the subject trustee’s sale and sold the Subject Property at a trustee’s sale. (AA 57:19-24, 59:3-7, 18-23.) It is immaterial whether or not Deutsche Bank was in possession of the original promissory note and/or Deed of Trust. This lack of possession does not in any way diminish their rights, as the beneficiary under the Deed of Trust, to enforce their interest in event of default.

    Accordingly, Appellants’ claim to cancel the trustee’s deed is without merit, and Respondents are entitled to summary judgment.

    F. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Quiet Title Because There Were No Triable Issues of Fact.

    Section 761.020 of the Code of Civil Procedure sets forth the five elements which a Complaint must allege in order to sustain a cause of action to quiet title: (1) a legal description of real property and its street address, (2) plaintiffs title as to which a determination is sought and the basis of the title, (3) the adverse claims to the title, (4) the date as of which the determination is sought, and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. Code of Civ. Proc. §761.020.

    *17 1. Appellants Cannot Establish Any Facts Affecting the Validity of the Trustee’s Deed Upon Sale to Warrant the Remedy of Quiet Title

    Appellants cannot establish a basis to assert a quiet title action against Respondents. Appellants’ claim is based upon their allegation that “no defendant has standing to foreclosure upon Plaintiffs’ property.” (AA 199:17-23.) As set forth above, this allegation is unsupported by fact and law. In fact, as established above, Deutsche Bank, as the beneficiary under the Deed of Trust, had every right to enforce its security interest in the Subject Property once the Subject Loan went into default and there was no subsequent cure of the default. (AA 55:22-56:8, 56:26-57:10.) Further, CRC as the trustee under the Deed of Trust, had the authority to both notice and conduct the trustee’s sale at the direction of the beneficiary. (AA 57:11-18.)

    Appellants’ claim to quiet title is without merit, because Appellants cannot establish any facts which affect the validity of the Trustee’s Deed Upon Sale. See, Moss Estate Co. v. Adler, 41 Cal.2d 581 (1953); Kroeker v. Hulbert, 38 Cal.2d 261 (1940) (“In actions to cancel a certain instrument it is … essential to allege the facts affecting the validity and invalidity of the instrument which is attacked”); Sly v. Abbott, 89 Cal.App. 209, 216 (1928) ( “[I]t is well settled that one who relies upon estoppel or other facts of equitable cognizance as a basis for a decree quieting title must allege such facts in his pleading”). Accordingly, the quiet title claim cannot be maintained against Respondents.

    *18 2. Plaintiffs Cannot Establish That They Can Tender the Amounts Owing Under the Subject DOT to Quiet Title

    Under California law, a plaintiff seeking to quiet title must allege tender or an offer of tender of the amount borrowed. See, Arnolds Management Corp. v. Eischen, 158 Cal.App.3d 575, 578 (1984); see also, Dool v. The First National Bank of Calexico, 207 Cal. 347, 351-352 (1929) (affirming decision of court to require reimbursement of monies advanced by bank to deceased, incompetent mortgagor under a deed of trust in an action to quiet title); O’Brien v. O’Brien, 197 Cal. 577, 585 (1925) (finding that, in an action to quiet title, a mortgagor may be required to reimburse the mortgagee for the unpaid debt based upon a purportedly invalid mortgage). In this case, Plaintiffs cannot produce admissible evidence raising a triable issue of material fact as to the quiet title claim. Here, there is no allegation in the Complaint that Appellants could tender the amounts owing under the DOT to Deutsche Bank. (AA 196-200.) Moreover, Appellants have not offered to tender the entire amount of indebtedness to Deutsche Bank. (AA 60:2-6.) Because the Appellants did not and cannot tender the indebtedness to Deutsche Bank, Appellants cannot obtain equitable relief, and the quiet title action is subject to summary adjudication.

    G. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim for Uniust Enrichment Because Appellants Could Not Establish They Were Entitled to Recovery Any Amounts from Respondents.

    Similarly, Appellants cannot establish that they are entitled to recover any amounts in connection with their claim for unjust enrichment. Plaintiffs allege that “should Defendants successfully claim any rights title or interest in *19 the subject property, that Defendants pay to Plaintiffs all monies necessarily expended upon the property for back taxes, insurance, and deferred maintenance.” (AA 200:7-9.)

    The elements of an unjust enrichment claim are the “receipt of a benefit and [the] unjust retention of the benefit at the expense of another.” Lectrodryer v. SeoulBank, 77 Cal.App.4th 723, 726 (2000). An action for unjust enrichment is based on the principal that, “a person who has been unjustly enriched at the expense of another is required to make restitution to the other.” (Emphasis added.) First Nationwide Savings v. Perry, 11 Cal.App.4th 1657, 1662 (1992) (citations omitted). However, “the fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it.” (Citations omitted). Id. at 1663.

    Here, no cause of action for unjust enrichment can be asserted against Respondents. The fact is that Deutsche Bank had a security interest in the Subject Property which, upon default of the Subject Loan, Deutsche Bank had the right to protect. (AA 55:22-56:8, 56:26-57:10.) Multiple payments on the Subject Loan were missed, and the Subject Loan went into default. (AA 56:17-19, 57:19-24.) It is inconceivable that either Deutsche Bank or CRC unjustly received any “benefit” from Appellants, when Appellants failed to pay the entire amount of indebtedness owing under the DOT.

    Accordingly, Respondents are entitled to summary judgment.

    *20 V. CONCLUSION

    DPlaintiffs-Appellants’ claims are simply not supported by the facts. For all of the foregoing reasons, Respondents respectfully request that this Court affirm the sound ruling of the lower court.

    Robert HERRERA and Gail Herrera, Plaintiffs and Appellants, v. DEUTSCH SIC¨ BANK NATIONAL TRUST COMPANY, as Trustee for Long Beach Mortgage Loan Trust 2003-4 and California Reconveyance Company, Defendants and Respondents.
    2010 WL 5275172 (Cal.App. 3 Dist.) (Appellate Brief)

  8. @leapfrog – in bk court, in someone else’s bk – an AP

  9. A friend of mine just had a judge throw him out of chapter 13. The judge apparently bifurcated the secured debt on paper, and moved the unsecured portion over with the rest of his unsecured debt, causing the debtor to exceed the unsecured debt limits. I knew a homeowner could bifurcate on paper, but I am first of all surprised to see a judge do it sua sponte, (and maybe I’m surprised simply because I have never seen a judge do so) and secondly to move the undersecured portion to unsecured debt.

  10. cont: So when we received our foreclosure statement, I payed close attention to the DOT and the Substitute of Trustee, it struck me when I Read: MERS{on the SOT} acting on behalf of Mohave State Bank{orignator of loan}the Original Beneficiary{no affidavit from MERS included}and on the back{p 2}was VP of Loan Documentation, Linda Duncan, signing over Quality Loan Service Corp of San Diego, as the New Trustee for the sale, naming WFB as the Beneficiary.

    WFB has now put in a motion, to move this case to a Federal Court and it’s only a matter of time, before Freddie Mac steps in{they claim to own the motgage of their web page}. I will update this case as it Moved forward. Thanks every one and let’s hope we can establish Case Law, here in Arizona.

  11. OK folks, here it goes: Liewer et al v. Wells Fargo Bank NA et al. Filed: June 30, 2011 as 3:2011cv08101
    In Dec. 2009, i sent an affidavit to WFB, asking them to prove to me if They were the Holder In Due Course, of the Note. We received their Response in Jan, 2010 and they said they were not the Investor of the Note. They also conveyed to us, it was common practice in todays Market to sale the note.
    We sent them their 1-10 payment and all the other payements
    {7-10 was paid in cash at local branch}for the Year. In Dec. 10, we received an unspecified check from WFB, for Overpayment that we DID NOT CASH! So in Jan 11, my wife went to the local bank and they refused our payemnt and stated we were in foreclosure. When WFB’s Acccounting statement was given to us: 1/10 payment was sent to them but not cashed, 2/10 payment of 2k was split, 1/2 sent to 1/10’s payement and 1/2 to a suspense account. 7/10 payments was not recorded{wife cant find receipt}and like 1/10 payment, 11/10 payment was mailed to them and not cashed.

  12. Please add me to your email list.

    Email: llerbmag@cox.net

    Thank you.

  13. […] SEE HERRERA DECISION CLICK HERE […]

  14. And NOW this …..

    The recently “Unpublished” In Re Herrera Appellate Ruling
    has been REVISED by the Court.

    The status is now “Partially Publish”. Looks like
    the ruling has become MORE c-o-n-s-e-q-u-e-n-t-i-a-l.

    ” In Re Herrera Order Modifying Opinion and Certifying Opinion for Partial Publication”

    http://www.scribd.com/doc/58948213/In-Re-Herrera-Order-Modifying-Opinion-and-Certifying-Opinion-for-Partial-Publication-c065630

  15. […] Also http://livinglies.wordpress.com/2011/06/06/herrera-v-deutsch-ca-appeals-court-deals-death-blow-to-de… […]

  16. FALSE UTTERING

    Uttering a forged instrument is a criminal offense. When a person
    knowingly publishes or puts into circulation any forged or altered
    financial document, legal document or other writing with the intent to
    misrepresent it as true and defraud others it amounts to uttering a
    forged instrument. To “utter” means to distribute or offer under the
    pretense that it is genuine. The uttering of a forged instrument is a
    separate and distinct offense from the making of it. The accused must
    not only know that the instrument was forged, but s/he must intend to
    defraud at the time of offering it.

    There are State specific laws on the area. The following is an example
    of a State law ( Florida) on uttering a forged instrument:

    Uttering forged documents is a third degree felony in Florida and may be
    punishable by up to 5 years in prison and/or a fine of up to $5,000.
    [Fla. Stat. § 775.082; Fla. Stat. § 775.083]

    Fla. Stat. § 831.02 Uttering forged instruments
    Whoever utters and publishes as true a false, forged or altered record,
    deed, instrument or other writing mentioned in s. 831.01 knowing the
    same to be false, altered, forged or counterfeited, with intent to
    injure or defraud any person, shall be guilty of a felony of the third
    degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    [Fla. Stat. § 831.01 says “ Whoever falsely makes, alters, forges or
    counterfeits a public record, or a certificate, return or attestation of
    any clerk or register of a court, public register, notary public, town
    clerk or any public officer, in relation to a matter wherein such
    certificate, return or attestation may be received as a legal proof; or
    a charter, deed, will, testament, bond, or writing obligatory, letter of
    attorney, policy of insurance, bill of lading, bill of exchange or
    promissory note, or an order, acquittance, or discharge for money or
    other property, or an acceptance of a bill of exchange or promissory
    note for the payment of money, or any receipt for money, goods or other
    property, or any passage ticket, pass or other evidence of
    transportation issued by a common carrier, with intent to injure or
    defraud any person, shall be guilty of a felony of the third degree,
    punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”]

    831.09 Uttering forged bills, checks, drafts, or notes.–Whoever utters
    or passes or tenders in payment as true, any such false, altered,
    forged, or counterfeit note, or any bank bill, check, draft, or
    promissory note, payable to the bearer thereof or to the order of any
    person, issued as aforesaid, knowing the same to be false, altered,
    forged, or counterfeit, with intent to injure or defraud any person,
    commits a felony of the third degree, punishable as provided in s.
    775.082, s. 775.083, or s. 775.084.

    The State of Michigan defines the offense (MCL 750.249): “Any person who
    utters and publishes as true any false, forged, altered or counterfeit
    record, deed, instrument or other writing specified, knowing it to be
    FALSE, altered, forged, or counterfeit, with intent to injure or defraud
    is guilty of uttering and publishing.”[4]

    NRS 205.395 False representation concerning title. Every person who
    shall maliciously or fraudulently execute or file for record any
    instrument, or put forward any claim by which the right or title of
    another to any real property is, or purports to be, transferred,
    encumbered or clouded, shall be guilty of a gross misdemeanor.

  17. […] Courts are starting to rule in favor of the homeowner – even in California. See these links: http://livinglies.wordpress.com/2011/06/06/herrera-v-deutsch-ca-appeals-court-deals-death-blow-to-de… and […]

  18. Also, John, when you said in your post that you “learned the hard way” was that in BK court? Or Fed or superior, if you don’t mind my asking.

  19. Thank you, John, for the response. I’m not pro se and I have an attorney working on it. He’s pretty good and knows what he is doing. I pay him a small fortune, so I leave it in his capable hands; I’d be a basket case right now if I had to deal with representing myself. I do keep up to date on the latest events and am a proactive client and do ask him for updates. I also have a PACER acct and keep an eye on things. Also, I am the plaintiff, so I’m not sure what you are saying by their bringing action against me. Maybe I’m confused on what you are trying to tell me. I think we are ready for trumped up docs in cas that happens. My attorney has other cases like mine and this ain’t his first rodeo. They have asked for extensions/stalled throughout the whole case, since their intitial response, so you are right about that. Thanks again – I appreciate the info.

  20. And a claimant may not cure it’s lack of standing by subsequently acquiring an interest. Have you read discovery rules? You need to know the details about who must do what in response to disc production / answers / admissions.

    This whole business to me is 70% procedure. (The other 30% is relegated to actual facts.) One needs to know the diff between a statement of fact and a statement which is merely a legal conclusion, for instance.
    It’s these issues which need focus and they’re not getting it. So, homeowners continue to lose, imo.

  21. Also, leapfrog, re-read In re Hwang. And in re Wilhelm while you’re at it. They’re all over the place.

  22. leapfrog – when they don’t produce, instead of just filing a mtn for disc violations,
    you might just move for decl judgment since they haven’t evidenced ownership / right to enforce in their disc production, but do so without prejudice to such a violations motion by you. Learned this the hard way. They are probably going to file a mtn
    for an ext of time to respond to discovery. I would fight it tooth and nail because by bringing any action against you, there was an implict averment that they ALREADY
    ‘had the goods’; otherwise, their action was an abuse of process.
    But, they often do produce whether it’s a trumped up note or not, so be ready with your next move. Chances are, the endorsements weren’t done at the time of the alleged event – this means they’re not business records one way or another. See FRE’s.

  23. whatever leapfrog. i guess there’s not enough room in the pity party that the comments section rapidly devolves into for rational conversation. good luck

  24. What personal attacks, Harry? The only thing I’ve ever called you was a troll and that was several months ago. Maybe you ought to resume your meds.

  25. @leapfrog – “avoid the lien” is a term of art used in bankruptcy practice and derived from the bankruptcy code itself. i wasn’t attacking you or trying to suggest that you are a perjurer. i was having a conversation with johngault and carie about bankruptcy matters and shared what I see as a pitfall of some of the bankruptcy strategies before you re-instituted the personal attacks on me. take a deep breath, maybe a stiff drink, and back it down a couple of notches.

  26. @tn I don’t understand why you assume I am trying to “avoid” the lien by filing an AP. We put the pretenders’s name and the amount unknown as secured. I’m sensing by the tone of your posts that you assume all of us debtors are either “avoiders” or “perjurers” by some of the comments you’ve made. Why are debtors to blame for wanting to know the TRUTH about who owns their loans? Don’t they have a RIGHT to know this information?

    Banks don’t have the right to steal people’s homes and I cannot understand those who defend the banks. Homebuyers aren’t out stealing homes. Heck, most don’t even fight back.

    I see the banks as the perjurers, dodgers and liars by not dealing with debtors in good faith and fair dealing. Perhaps I am being prejudiced against the banksters and their high-powered attorneys, but the attorney for the defendant is being sued by another client for her part in a Ponzi scheme and her firm, Bryan Cave, is being investigated by the FDIC, along with Brian Moynihan at B of A for destroying evidence in a case. She has subsequently withdrawn from our case.

    In our case, we are trying to make the bankster prove proper standing/capacity and what the amount owed is. The pretender was supposed to file a proof of claim; even though CH7, the amount is listed as unknown and in that case the “creditor” should file a POC. They also dodged the QWR before all of this occurred. This info is also mentioned in our suit, along with our efforts at getting a modification and trying to work in good faith with the pretender (before we found out it indeed IS a pretender).

    We finally decided to let the judge sort it all out. Evidently our case is good enough to proceed, because he allowed it. The trustee has also joined our case and I’m quite okay with that. I have nothing to hide, I’ve done nothing wrong and evidently the trustee wants to find out the truth also. I don’t think I’m going to get a “free house” and that’s not really what I am after. I want to know who has the rights to my loan, who has the right to negotiate with me in good faith, and who can furnish me clear title if I were to pay the loan off.

  27. I can appreciate saying the amount was “unknown”. Is that also how you listed the creditor though? Here’s where I’m going with this : if you swear under oath the secured creditor is HSBC and then file the AP to avoid HSBC’s lien, there’s a rather obvious contradiction there. In fact, you may be estopped to deny that HSBC is a secured creditor. Conversely, if you list the secured creditor as unknown, then you’ve potentially left open a door for your lender to come back and claim lack of notice. It’s a bit of a catch-22 that may be managed if particular attention is paid to it and every step along the way is done correctly.

  28. “And another thing that has bothered me about the “BK strategy” that I’ve seen referenced especially on other sites is the issue that the petition is filed under oath. So you have to swear under penalty of perjury that there either is or isn’t a debt on the property.”

    I swore under penalty of perjury that the amount is UNKNOWN. Because it is. I don’t know what amount I owe or to whom, so I was not perjuring myself. I told the ABSOLUTE TRUTH. I owe someone, but I know not who and until the TRUE creditor can prove standing, they get nothing. I went CH7 followed up by an AP. The AP’s first amended complaint was allowed to proceed. In discovery now and the pretender is “stalling”.

    If the pretender “owns” my loan why aren’t they proving it – bing, bam, boom – case over? Wouldn’t it be quite a simple matter? Why not produce ownership right away and save yourself the legal fees and hassle of an ongoing case? Of course, the pretender would have to prove how he came to “own” the loan, while it was under purvue of the Trustee in the defunct originator’s own BK case. Selling property without the trustee’s permission when the trustee is still actively involved is a “no-no” isn’t it? If I were to do it, I am SURE I would be heavily fined or jailed or both. Different sets of rules for the banksters though.

  29. @john – i read that too fast. now i see you were trying to get under the debt limit, not strip liens. yes, that should work ok then.

  30. unless you happen to be in a very radical judicial district, that really doesn’t apply to mortgages secured by your principal residence in a ch13 context. vacation homes, rental property it should work on ok. there’s always ch11, where you may be able to get away with a bit more

  31. Which reminds me – did you know that you can “bi-furcate” a note, including the first, on paper for the purposes of qualifying for the secured debt limit in chapter 13?

    I forget what it is , but say the secured debt limit in C-13 is 1.3 million. If your house is worth 700k but you owe 1.2 million, you can bi-furcate those numbers on paper in your bk. This results in a bk schedule with only the 700k, the value of your home, shown as the debt on the house because the rest of the 1.2 is unsecured. This probably requires an appraisal. But it can keep you under the secured debt limit for 13.
    Does the unsecured portion move over to your unsecured debt amount? I just don’t remember. I dont’ think so. tnharry?

  32. Agreed John – I was trying (somewhat unsuccessfully) to say that doing these things outside a BK results in the unsecured debt remaining and leaves the potential for it to come back and bite you via judgment. Completing either the 7 or 13 would discharge the obligation completely, so no fear of the unsecured debt coming back later. You were correct though about ch7 being more difficult to qualify for. If you’re not including a mortgage payment on your monthly income and expenses, then you’d have to have very little income to stay within ch7 as opposed to a 13.

  33. tnharry – when one files bk, even if a bankster ends up with “just” an unsecured debt, it’s toast because bk does not provide for enforcement of promissory notes. That was kind of confusing, I thought. If a person is not filing bk, and the banksters gets a judgment on the note, that is of course another thing.
    Nevada’s hs exemption is the highest in the nation, I think, at 550k. I would guess
    California’s is right up there, but don’t know. Some states provide that residency for a certain time period is required to get the benefit of the hs exemption and everyone should check his or her state.

  34. @carie – I dont’ know if trusts are empty or not – it’s certainly not my forte. I just
    believe that there is FHA insurance, VA guarantees, FNMA guarantees, Servicer and other guarantees (to the alleged noteowners / investors), credit default swaps, pool insurance, and GNW else which affect the balance of a note. These facts are being
    withheld from the judiciary and false numbers are being submitted. Any number of these things affect the principal amt of a note.
    So what is a homeowner supposed to do? Make a generic allegation as ‘fact’?
    I dont’ know how many more people have to lose their homes when the note has actually been retired or reduced by these factors / payments. The legal community
    is just going to have to find ways to get this before the courts.
    At what point do these guarantees, insurance kick in? 3 mos down? Right away?
    Whenever it is, it reduces the principal dollar for dollar.
    For the past 4 years or so, judges have scorned the homeowners with the urging of the banksters as bums, the great unwashed, who havent’ paid. End of story. Well, your honors, how ’bout the fact that this group you have deemed morally and legally superior has in fact been conning you all this time?

  35. @carie and @john – Chapter 7 is dangerous in that the moment you file, all your assets are “owned” by the bankruptcy trustee and abandoned back to you. Technically the trustee is supposed to sell your assets and pay your debts. That seldom happens because of the combination of secured creditors and exemptions (both personal property and real property) that act to “remove” the available equity in the assets. And that’s exactly why you see this route employed most often in a chapter 13 case as opposed to a ch7 – the ch13 trustee doesn’t use the same liquidation vehicle. Find out your applicable real property exemption. There is a federal one, but the BK code allows states to opt out. I think in TX and FL the real prop exemption is unlimited, while in TN it is a paltry $5000. Using this strategy in TN for instance would result in the trustee stepping in after you did the heavy lifting and selling the house out from under you anyway.

    And another thing that has bothered me about the “BK strategy” that I’ve seen referenced especially on other sites is the issue that the petition is filed under oath. So you have to swear under penalty of perjury that there either is or isn’t a debt on the property. Some of the suggestions about listing “unknown”, “unliquidated”, etc may be bordering on perjury depending on one’s own specific set of facts.

    And carie – the benefit of ch7 giving you a discharge of your obligation to pay unsecured and secured debts is huge. See my comment under “CA man wins house…” about my thought that the lien may be gone but the underlying debt remains. That little issue is ignored so often – an unsecured debt may be converted to judgment via suit, that judgment may be recorded with the register, then BOOM – your lender has an ironclad, perfectly documented lien on the house. That’s always a possibility in these situations. Fighting foreclosure, even successfully, isn’t necessarily the end of the road.

  36. Right, johngault—so can I “assume” the “fake loan” is unsecured because the trust is empty???

    As for income, we are self-employed and barely above poverty level at this point…

    I have no equity…and I will be doing the homestead paperwork this week.

    thanks.

  37. A note is a contract and as such is subject to dispute and renegotiation. I wonder if people may attempt to re-negotiate its terms and when ignored, allege failure to mitigate as a defense to the note. When the identity of the noteowner is withheld, I believe it’s an infringement on one’s right to mitigate (among other things). One can’t mitigate with someone one can’t identify. Never mind the ‘it’s in a trust’ issue and never mind HAMP. You had nothing to do with that, and you want to re-negotiate it’s terms. A third party is preventing you against your rights from doing this, imo.

    Actually, it wouldnt’ actually be failure to mitigate. It would be more along the lines of
    tortious interference (which imo is a sustainable cause of action) with your rights against the parties withholding the info in that the identity has been withheld from you, and thus you could not pursue your right to re-negotiate the terms of the note. And or where did you sign in the note that any re-negotiate of the terms would be through a third party?
    Yes, notes state they may be transferred, but no where do they state it will be done
    clandestinely. One doesnt’ have a ‘right’ to actual re-negotiation, but one does have a right to TRY to re-negotiate and to mitigate damages to yourself and the note-owner.

    That’s a big problem with securitization. Did you lose your right to re-negotiate the terms of your note / contract by its securitization? If so, this is a unilateral change to the note / contract, one you didn’t agree to.
    It’s (just) contract law.

    And btw, everytime a bankster files a proof of claim in a bk case, they swear they
    have tried to mitigate. They lied. How critical is the lie? I think it’s pretty critical.

  38. tnharry is referring to the homestead exemption in your state. Everyone should file a homestead on their property. I’ve been saying this for a long time now, because as tnharry pointed out, in the event one files bk AND ends up with a debtless home, the bk trustee will stick his hand out for your equity for the benefit of your other unsecured creditors (your bk ‘estate’). If you have any equity to protect, the homestead will keep sears, penneys, mc, visa, etc from getting it thru the trustee- anyone without a security interest in your home. Homestead exemptions are just a matter of filing one fill-in-the-blanks form and recording it.
    But as to carie, if you qual for a 7, doesnt’ this mean you have no income? 13 is the wage-earner’s plan and my limited knowledge of 13 tells me you have to show you can support the first mtg to keep the house, if there IS a first mtg someone can prove. Isnt’ the only way to qual for a 7 is if you have no secured mtg to show ability to pay? (because you have no wages? = dont need income because no secured debt?) Now, if you want the battle, can one file 7 on the premise there is NO loan on a home? I dont’ know. I think it depends on the legal assumptions out of the gate as to whether or not there is in fact secured debt on the home, but as I said, I don’t know. If you had income, what would your life look line minus the unsecured debts and the HELOC? That would be the ben of bk.

  39. Oh, and just for fun, I have called the Santa Ana phone number for Deutsche bank about 10 times, leaving messages saying I need to know if the trust still exists, and whether or not my “loan” is in there…what a surprise, they totally ignore me…

  40. thanks johngault and tnharry—

    I ask re. chap 7 because a while back on this site I read a comment (boots), who said that since his “securitized trust” is empty, he just treated his “fake loan” as unsecured debt in his bankruptcy reorganization, and lo and behold it was zeroed out on his credit report.

    My “fake loan” is supposedly (according to papers sent to me from my IndyMac servicer) “pooled in the following Mortgages Backed Security: INDX 2006-AR19, and the Trustee of this securitization trust is Deutsche Bank.” The servicer then went on to say (in an email—I made sure everything was in writing!), that “this proves that Deutsche bank owns your loan, and we are the servicer…”

    Yeah, right…so do I have a smoking gun???

    I wrote him back and said send me proof of conveyance…I also found out that the PSA has no loan schedule in it…I haven’t heard a thing from him since then, except another exact same form letter about the loan being in that trust!!

    I do qualify for Chap 7, and I have never done bankruptcy before, but I was told that I could do chap 7 myself…it would involve 1rst and 2nd underwater “loans”, and a couple credit cards.

  41. Doing those things in a chapter 7 case could really create a situation of be careful what you ask for. Stripping a 2nd is easy and happens all the time. Try to strip a first though, and suddenly you have a chapter 7 case with a big asset free and clear that the trustee sells to pay your creditors, the largest of whom is your formerly secured mortgage company. Depends greatly on your local property exemption amounts as to whether the bk route would work for you. Some states have very large exemptions, others are tiny comparatively.

  42. @carie, as to that Heloc, I’d strip the sucker as wholey unsecured. If you’re house is worth 150k, your 1st is 160k, then obviously , the HELOC is wholley unsecured and you can dump it – so do so! By the way, if you put a value of 150k, certain parties may sqwuak within a definited time frame. If they dont within that time frame, your value as stated on your schedule essentially becomes the law of your case. The mtn to avoid the HELOC is simple and usually the allged holder of the HELOC never answers or shows up because they know they’re going to lose. It’s what it is. And it’s what I would do. Remember, I’z not an attorney.

  43. @carrie, first of all Deutsche doesn’t own your loan. Didn’t they just tell
    you it’s in a trust? Does Deutsche own the trust or are they just claiming
    they are the trustee? You need a more “definitive explanation/statement”. Unless Deutsche owns the trust, you have indeed already been lied to. Keep that letter as it contradicts itself. And it clearly does not answer the question of who owns your note. And, anyway, as you know, such a statement is hearsay and a legal conclusion more than a fact. Such a statement evidences jack and as stated is confusing. It would be confusing to a court, also.

    I am not very familiar with C 7’s. Isn’t that a ‘no asset’ case? Still, on the schedule, yeah, I would write something like what you think the balance is with an asterisk. Below, I would at the corresponding asterisk write in something like “this figure is an estimate and does not include payments made by third parties tbd.”
    Don’t forget – I’m not an attorney and this is not legal advice. It’s just what I would do.
    I don’t know if this will help you get discovery if you want it, or if it will put Deutsche to its proof, but I think it will open the door.

  44. so, johngault—

    question: If someone is filing BK (chap 7), and they have been told in writing that “your loan is in trust blah blah” (but in actuality the trust is empty), “and therefore this is proof that Deutsche owns your loan” (which of course is a lie), —are you saying just treat that “fake loan” as an unknown creditor and unknown amount? How do you not enter an amount—as you say “don’t lock in amount owed”…does this go for a HELOC, too???

  45. @Barbara – that is a very defining decision. It’s an issue I haven’t seen addressed head-on. Any reader here contemplating filing bk should read this case and save yourself some trouble: do NOT list the servicer on your bk schedule. And show the debt to “unknown” as disputed. I wouldn’t lock myself into an amt owed, either, given that third party payments on a note have reduced the principal accordingly.

  46. Just read that decision. Someone should tell Herrera’s attorney that the dot is probably invalid since it names Long Beach Mtg as both beneficiary and trustee.

  47. Sounds like the plaintiffs’ pleadings were pretty colorful…

  48. I’m re-reading Herrera. I see that the original loan was taken by a third party with Long Beach Mtg.

    I am shocked and disgusted to see that in the dot,
    Long Beach is listed as both the beneficiary and the trustee. This is legally fiction.

    I haven’t been able to get many to understand the duties and fiduciary of the dot trustee, so let me say it like this:

    Let’s let Phil Jackson or Koby Bryant be the referee for the Lakers or how about we let one of the Lakers’ owners be the ref?

  49. Lawyers always feel pro se or lay people are stupid which is not the case if the law wasn’t being abused especially by the people who swore to uphold it this would be an easier battle to fight.It doesn’t matter who they are or where they come from on this web site or any other,the name of the game is the almighty dollar.Whoever can pay can play and the rest of us ar ejust a bunch of certifable kooks.What ever!!!!

  50. John Gault

    Thanks. I will definitely try to find those pleadings.

  51. marie, please note that Herrera is a POST-foreclosure
    action to set aside the f/c sale. Also please note the opinion is not for publication. If you can find the Herrera’s actual pleadings, it might be useful to you.

  52. Here is a link to Herrera, but what one really needs is the pleading by Herrera. I don’t have it.

    http://www.scribd.com/doc/57228781/Herrera-v-Deutsche-Bank-CA-3rd-Appellate-District-1

    L, please refrain from castigating other commentors! I don’t want tnharry leaving. He makes insightful and valuable contributions here. Substituting an attack on the man for his arguments is one of the seven articles of propaganda. It’s also crap, and I’m sure you didn’t mean to do that. If petty squabbling takes over here,
    people who might provide those contributions will be outie, as my son would say.

  53. Here is a link to Herrera, but what one really needs is the pleading by Herrera. I don’t have it.

    L, please refrain from castigating other commentors! I don’t want tnharry leaving. He makes insightful and valuable contributions here. Substituting an attack on the man for his arguments is one of the seven articles of propaganda. It’s also crap, and I’m sure you didn’t mean to do that. IF petty squabbling takes over here,
    people who might provide those contributions will be outie, as my son would say.

  54. In some ways, tnharry is accurate. The banksters will likely get their ducks in a row whatever it takes and come back. BUT, having an appeals court look at such majorly fundamental issues and saying it aint so because they said so is a notch. The rules of evidence have not been properly plead by homeowners, by and large. While it’s likely Deutsche will ultimately prevail, it’s not a given. The attorneys or homeowner who had the smarts to make the arguments to get to that point may well have the smarts to best them at the next juncture.

    There’s a case in NJ, for instance, wherein the attorneys managed to get the court to properly apply the law to TILA violations. The court ruled that tender is not the first consequence of rescission. This is not
    negligible. It is a huge victory for the homeowner.
    Given the judge’s well-reasoned analysis of the applicable rules and statutes in play, it will be very difficult for a bankster demanding tender to overcome this decision, no matter the different venue imo.

    So, homeowners plug away. And sometimes we hear about the wins here. A proper application of existing law is a win. Maybe it will even start a trend with the judiciary. Could happen.

    I do agree it can be misleading, however. Nonetheless, I am happy to hear of it, which I wouldn’t have except here just now.

  55. hkcon,

    f***** over.

    Me too. Just doing what I can.

  56. Steve,
    I am not advocating that anyone else take this course of action. I will say this about the “PARTICULAR” mass joinder that I am involved in, it has been corroborated on another website that I believe has integrity in it’s business model. I did not rely on the bbb for anything as I was once a member and I know it to be a pay for play type deal, they were forever asking me to pay more money for “better grading”. Really the point of my post was that I have been f***** over by just about everyone involved in this Neil’s business included.

  57. hkcon,

    I hope you not mixed up in the Wells class act that requires 6k to join.

    I went to a place in Santa Anna, Calif. a few months ago to check out one and saw the mass families looking for help. $1,200 bucks just to copy and paste a QWR and send it to the lender. PLEASE!!!!

    This one place had a website that had no BBB complaints. The lawyers had no complaints at the State Bar.The class action is claiming the loans are an illegal product and sounded really good. I was stumped until I Google the attorneys and business owner names. The owner use to be a used car salesmen that got shut down for unlawful reasons and then he became a mortgage broker. Go figure… He got busted for making bad loans so he decides to do a mortgage rescue company and gets busted again by the DRE. All the DRE does is take away the business license.

    So now he collects five lawyers and starts up the mass joinder business. The amazing thing is that he never changed the business location. I already informed the BBB to look into this.

    You can’t always depend on the BBB or Bars info. 1000 clients at 6k a piece and monthly fees is a heck of a profit just to file and lose. You got to google search.

  58. HELP! HELP! HELP!

    We only have 31 signatures in California? What’s that about….

    Please Sign The Petition NOW! and pass it on..

    We need people to put it in local newspaper blogs facebook etc…

    This is the only way to win now.

    http://www.ipetitions.com/petition/smokeandmers911/signatures

  59. leapfrog—

    Thanks…happily, the days of “tucking my tail” are long over…although my little rescued chihuahua does that frequently 😉 !

  60. Carie: Ignore PP – its his job to shill and troll for the banksters – hoping you will be intimidated and buy into his propaganda or tuck your tail between your legs and go away.

    He and his pals cannot stop a tsunami. POWER to the people.

  61. usedkarguy—good point…unfortunately, the “victims” and the “idiots” have to be lumped together…because in the end it’s all about what is the truth…and what is the law…isn’t that what our great(?) country was founded on?

    At this point we don’t have enough prison space for all the criminals in this mortgage fraud scenario…

  62. re. post from “Patrick”

    “The decision means nothing. The lender can correct and start over.”

    translation: The “fake” lender can now go falsify more “documents” and scramble to come up with more lies that the judge may or may not believe…

  63. tnharry, you are just like one self proclaimed expert witness who thankfuly no longer posts on this site anymore. Maybe your one in the same. Anyway, do us all a favor and take the same exit strategy as your buddy M.S.

  64. harry, we’re all non-lawyers, but I don’t hear or see ANY LAWYERS (save Greg Brylcream and Bob G-spot and RAY DAVIES) helping ANYBODY!

    They (attorneys) all want the 5 thousand up front, and proceed to look at the client in WONDERMENT because the client is so well-versed in the argument, and now the (insert your own pejorative) lawyer can’t bullshit the client…….and jag him around, and take the 5 grand, and DO NOTHING for the client.

    I’m watching people hand over 3, 5, and 10 thousand dollar fees, and they end up with people giving them stupid looks and saying “sorry, that’s all we can do…..”, and the homeowner/borrower loses, or gets a modification of the debt payment which is suspect at best. The other end of the spectrum is the attorney who wants $20,000 up front because HE KNOWS the case is a winner, and why get someone a free house for $5000? It’s not “fair”. There’s a lot of animosity out there, and they are trying to direct it OUR WAY.

    Now, in DEFENSE OF ATTORNEYS: people have to understand that many, many borrowers made many bad decisions on their own; filed false asset and income statements, purchased MULTIPLE RENTAL PROPERTIES, refinanced up to their EYEBALLS, taking home equity loans and buying new KARS, BOATS, THINGS, knowing THEY COULDN’T OR WEREN’T GOING TO PAY IT BACK SOMEDAY, or just blindly believing that THE GOOD TIMES WERE HERE TO STAY! Excuse me, but there isn’t a day that goes by that I don’t talk to SOMEBODY about a mortgage issue. And after three-plus years of this, I’m going to say it’s 25% victims, AND 75% IDIOTS. The IDIOTS borrowed ungodly sums of money against the real estate. Period. Bad decision (if you want to own your house someday). Some of these IDIOTS were SMART PEOPLE who understood the cost of money, borrowed or otherwise, and extrapolated it into an equation in their living expenses. “The best laid plans of mice and men often go awry”.

  65. Glad to see the house of cards is tumbling. Here’s an article on Max Gardner, one of the best at making the banksters’ house of cards tumble…

    http://mandelman.ml-implode.com/2011/06/max-gardner-from-the-front-lines-of-the-battle-a-mandelman-matters-podcast/

  66. re. Brian Davies Case:

    http://www.scribd.com/doc/54524336/Doc-25-Pl-Opp-to-Mtn-for-Judgment-on-Pleadings

    also re. Patsy Campbell—Knowledge is power…

    “Pendency of action” (lis pendens), is what allows for the possessory rights and your interests to the usefulness and necessity of your property to be protected and sustained by way of the legal process. This process and “pendency of action” will further allow for other discoverable remedial avenues to be revealed, and the process itself will allow you to benefit from your possession and occupation of the property.”

    lis pendens and temporary restraining order (TRO).

  67. I only wish this was released 6 mnths ago. Maybe it would have saved me from being raped in Arizona.

  68. WELL SAID, JOSE.

    When the TRUTH is constantly being obscured and squashed, it is harder to see…but that NEVER means it doesn’t exist…

  69. Tnharry and Patrick pulatie we need you. So dont quit on us.

    thanx and have a good day. At least Tnharry admitted he works both ends of the candle.

    have a great day.

    Bottom line is that the US Government if it wanted to could put all these banksters in Jail. Too Big Too fail is UnAmerican. It goes against the soul and fabric of this country.

  70. For those seeking a quick remedy, please go to 7?11 and get a gallon full of reality check!

    I do agree with NG about this case. All appellate decisions are not just persuasive they are the basis for most future decisions on cases that are narrowly looked at and compare to this one case in particular. What most people fly by without proper acknowledgement is that before this decision came down millions of bad decisions, bad case law, badly prepared, ill advised homeowners, ill prepared and professionally handicapped attorneys ALL OVER THE LAND, have lost precious time and resources in trying to play the delay game. They have, due to ignorance, poor judicial oversight, court corruption, cronyism, politics and lack of decisive action allowed themselves to be kicked out of their homes.

    Some states like Maryland have even gone after lawyers who were working on law suits with bogus charges, bogus testimony fro regulating agencies, just because they believed these hard working attorneys would create a mess in their court houses if they were allowed to present the facts are they truly are.

    In Virginia, we have judges applying bad case law, allowing the theft of thousands of homes in a feudal foreclosure system. Legislative branches so corrupt and inebriated with banker money that have punished the victims and make beggars out of proud and productive citizens.

    Yes, it is true that many of the issues this blog has raised through the years have not been useful as of yet in many court rooms and that to break through the status quo has not been easy. Many lawyers I talked to called me crazy, did not want to take the cases of many of my friends and clients. Even the Washington Post run stories trying to vilify the truth. Obviously they make tons of money from Bankers ads, foreclosure ads, and from Fannie and Freddie, how dare we the ignorant majority, threaten their corrupt trade of influence and profiteering.

    It is blogs like this one and others that have made it impossible for the truth to be permanently obscured. It is people like Mr. Garfield and other unknown selfless individuals that have risked their reputation in order to help this ignorant majority.

    I do salute you all and yes we do need the doubting Thomases in our midst. We need the knowledgeable foreclosure defense and fraud nerds to come out and share their tid-bits of knowledge. yes we need to have a DYSFUNCTIONAL FAMILY OF FIGHTERS.

    THANK YOU ALL FOR BEING THERE!

  71. tnharry and patrick p.

    This site is about revealing the reality of the blatant RAPE of America…

    If you don’t want to read about the TRUTH being revealed, GO AWAY.

  72. Patrick Pulatie,
    Lost all my original documents when I went to him for a loan audit back in 2008, Then paid Foreclosure Defense Group, recommended by Neil, for another audit and qwr, which was sent and ignored. FDG recommended a lawyer who bilked me for around $20,000.00 so I went pro se. Paid for a securitization review on this website and got a title report from the very same company that I had gotten one from before with the FDG product, in fact was a complete duplication. Has PP done anything to rectify my problem…..NO!!!!!!! Has the aforementioned “katherine” done anything to rectify my problem….NO!!!!!! EVERYBODY INVOLVED IN THIS THING HAS MADE MONEY OFF OF ME AND i AM NO WHERE NEAR BEING ANY BETTER OFF TODAY THAN I WAS 3.5 YRS. AGO…..I have made my final gamble in this and joined the mass litigation against Wells. It will either work or not and I will be done at that point, my house is scheduled, yet again, for sale on the 16th of this month, and it is starting to look like the mass litigation is not going to do anything to stop it, even though I, as a pro se totally ignorant individual, was able to stall it for 5 mos to let them get me in their system. And you can bet your ass I am not holding my breath that his new bureaucracy, the cfpb, or whatever it is called, and Ms. Warren are going to save me, 25 other agencies have failed in front of them. The scariest words in the english language….I AM FROM THE GOVERNMENT AND I AM HERE TO HELP!!!!!!!!!!!

  73. Not sure about Patrick, but I’m not a plant. I don’t work for a mortgage bank. I am an attorney and have represented both banks and homeowners on both sides of these issues. That’s why I tend to play both sides of the fence and do the devil’s advocate thing when the conversation starts to go too far over in one direction.

  74. Z – wasn’t meant to be trivializing at all, was just trying to be funny. Although in fairness, many of you do jump to Neil’s defense quickly when I point out issues with the editorializing

  75. I have the feeling there are several plants on these foreclosure sites.

  76. And I take exception to the term “Neilheads”–we are not a cult of personality devoted to NG. We are seeking the truth and helpful info, which NG and others provide. It’s about the info, not NG, so if you must categorize us, call us “truthheads.”

  77. But it’s not, A Man. It’s a procedural victory only. It does keep them in the home and in the fight for a while longer though. It doesn’t have any precedential value, and it’s not on the merits. It’s really dealing with a specific evidentiary issue in the summary judgment process.

  78. tnharry we need you so dont quit on us. We need a devils advocate on this site.

  79. Perhaps the bank IS free to refile, but that’s not the important thing. The victory is that the appeals court “got it” whereas the same court might not have a couple years ago. This is a battle won by a homeowner, but yes, the larger war is still ongoing. However, winning battles is how you win wars, so this is very significant–as Neil’s headline states, the house of cards “is tumbling”–hasn’t completely fallen over yet, but it’s starting to happen.

  80. In law until you go to the Supreme Court in Theory anything can be overturned.

    Patrick Pulatie who works for the banksters.

    NEVER AGAIN

  81. Patrick Pulatie works for the banks. Google him.

    This is another step towards victory.

    Be Strong And Courageous.

    This is a war of Attrition.

  82. Duck and cover Patrick, duck and cover. You’ll get flamed quickly by the Neilheads if you don’t blindly agree with everything posted on the site….

  83. TN Harry

    You are absolutely correct!!!! The decision means nothing. The lender can correct and start over.

    All I know is that any “Great Victory” for a homeowner on the Living Lies website is usually a TRO, or a foreclosure dismissed for technical reasons, and of which can be corrected, and restarted. Even worse, any precedent setting case law that goes against homeowners is ignored, when it is extremely important that they be made aware of it.

    This website is all about “selling hope and dreams” a la Obama.

  84. Was that a jab at me Marie? I wasn’t being sarcastic at all…

  85. This site should be a case study in the power of truth and disinterested impulse to expose huge crimes affecting individuals and society at large. Wish the victory were total instead of merely incremental. We need more people of goodwill to speak substantive truth, not just rhetoric.

    And we need more people who can argue without sarcasm and other forms of verbal attack

  86. But the homeowners haven’t won anything yet – this was a decision saying the bank hadn’t met their burden of proof for summary judgment. They may certainly be successful eventually, but they still have a long way to go. Neil, you must be more careful with the editorial commentary for the non-lawyers in your audience.

  87. Mt former attorney’s middle name might as well have been “modification.”. So, rather than pay him to lose, I went pro se because I too was told that no one would buy the Garfield Continuum. Now the GC is being vindicated in spades.

    Resistance is victory!

  88. Hooray. Vindication!

    I argued to an attorney I hired briefly last year that the assertions in the assignment and appointment were hearsay and he told me and everyone else who would listen that I was stupid. He also prepared a complaint presuming the trust was valid etc Watch out for attorney hacks.

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