Possible Counter-Attack in Unlawful Detainer (Eviction) in Fraudulent Foreclosure Cases

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factual issues for Unlawful Detainer case NFG 7-15-11

Various states have two levels of  jurisdiction that make it difficult to raise the proper issues in eviction even if there has been no preceding judicial action or if the preceding judicial action has been predicated on fraudulent evidence proffered and accepted by the court.

I ended up working on the issue and it turns out that the “summary proceedings” do not preclude a trial and do not even preclude the need for a jury trial — both of which the pretenders wish to avoid at all costs. Courts are split on this but most of them are coming around tot he view that the mere presence in court of the attorney for the “title holder” is not sufficient for a writ of possession unless of course the homeowner doesn’t show up or doesn’t object.

There is also a split between the content of statutes and the content of the rules of procedure. One is passed by the legislature which is of dubious validity and the other by the Supreme Court of the State which of course is the body (under the separation of powers required by the constitution) that sets procedure in the courts. Most agree that that the situation is not nearly as cut and dry as the Banks would like you to believe.

They say that the usual oral motion for “Judgment on the Pleadings” or “entry of the Order requested” is to be treated as though it were a motion for summary judgment. That means that the motion cannot be granted and there must be a trial unless there are no material factual issues in dispute.

Virtually all courts agree that a motion for summary judgment should rarely be granted. The only time it is affirmed on appeal is if the other side doesn’t show up, fails to object or does not present any issue, even a denial, of factual issues alleged by the party seeking affirmative relief. Toward that end I have complied a list of issues that are present in these securitized robo-signed loans that would lead to trial and thus gain a tactical and real advantage over the pretender lender even though they thought they had already won (special thanks to pro se litigant Darrell Blomberg in Phoenix for his excellent work and analysis of the trustee sale — I used his work extensively in preparing this):

Plaintiff alleges it is the owner of the property by virtue of a sale conducted by a substitute trustee in which it submitted a credit bid that was accepted by the substitute trustee, and where the substitute  trustee issued a trustee deed upon sale.

  1. Defendant denies Plaintiff is or ever was the owner of the Property. Defendant affirmatively asserts that the documents proffered and actions of the parties are in fact part of a criminal joint venture in which Defendant was the victim.[1]
  2. Defendant denies that the plaintiff and/or its agents have ever disclosed the true beneficiary (creditor entitled to offer a credit bid in the auction of foreclosed property) on any document or in any other media, oral or written in violation of Arizona Statutes. [2]
  3. Defendant denies the validity of the deed of trust because of the absence of a beneficiary causing a fatal defect in the instrument. [3]
  4. Defendant denies Plaintiff has any legal right to possession.
  5. Defendant denies that a substitute trustee was ever appointed by any person or entity authorized to do so.[4]

[1] A.R.S. § 39-161, states, “A person who acknowledges, certifies, notarizes, procures or offers to be filed, registered or recorded in a public office in this state an instrument he knows to be false or forged, which, if genuine, could be filed, registered or recorded under any law of this state or the United States, or in compliance with established procedure is guilty of a class 6 felony.”

[2] A.R.S. § 33-404(B) states, “… a grantor who holds title to the property as a trustee, whether or not such capacity is identified on the document through which title was acquired, shall also disclose the names and addresses of the beneficiaries for whom the grantor held title to the property AND…”  Additionally, CAL-WESTERN RECONVEYANCE CORPORATION was never appointed as a trustee by an authentic and authorized party, it has neither capacity to effectuate said transaction nor any protections under Title 33, Chapter 6.1 for its egregious actions.  As the beneficiary was not disclosed on the Trustee’s Deed Upon Sale and the alleged trustee operated without authority, the instrument is void and of no force and effect.

[3] MERS (Mortgage Electronic Registration Systems, Inc.) is designated as the “Beneficiary” in the Deed of Trust.  For MERS to be a “Beneficiary” is a factual impossibility.  MERS states on its own homepage, www.MERSinc.org, “MERS is an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked.”  MERS is strictly a process with a database; it cannot meet the statutory definition (A.R.S. § 33-801) of a “Beneficiary.”  A process is merely a methodology and a database is a compilation of information and it cannot be a “Beneficiary” as it cannot receive payments nor can it ever hold title to an instrument pertaining to real property or the real property itself.  The process elaborating how “mortgage ownership and servicing rights are originated, sold and tracked” does not create statutory status as a Beneficiary.  The Beneficiary cited in the Notice of Trustee’s Sale never received an authorization from an original Beneficiary as there never was a statutorily compliant Beneficiary in the Deed of Trust.  Since there was never a Beneficiary established in the Deed of Trust, the Deed of Trust is void and of no force and effect.  The indicated Beneficiary has no authorization to initiate a “power of sale” against the property. It is possible that a mortgage could be construed to exist, but that would require judicial foreclosure instead of non-judicial private sale.

[4] A valid Substitution of Trustee has never been made by a beneficiary with authority to appoint a successor trustee pursuant to A.R.S. § 33-804 (B) which states, “The beneficiary may at any time remove a trustee for any reason or cause and appoint a successor trustee, and such appointment shall constitute a substitution of trustee.”  The recorded Substitution of Trustee fails to meet the requirements of A.R.S. § 33-804 (D) in that no document has ever been acknowledged that substitutes or appoints a trustee by an authorized Beneficiary or its agent.  A.R.S. § 33-420 (C), states, “A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.”  A valid Substitution of Trustee to CAL-WESTERN RECONVEYANCE CORPORATION has never been made in accord with any contractual provision, Arizona statute or court action.  Therefore, the Notice of Trustee’s Sale is void as the cited Trustee has never been authorized to exercise a “power of sale” against the property.

  1. Defendant denies that the original trustee ever resigned or was replaced.
  2. Defendant denies that any substitute trustee ever became the successor to the original trustee.
  3. Defendant denies that any consideration was ever tendered at the auction of the property.
  4. Defendant denies that the Trustee’s deed upon sale was in fact a valid deed or the result of a valid sale.[1]
  5. Defendant denies that a bona fide sale took place in which the property was sold for value.
  6. Defendant denies that a bona fide sale took place in accordance with strict adherence to Arizona statutes.[2]
  7. Defendant denies that U.S. Bank acquired title to the subject property in any capacity, trustee or otherwise.[3]
  8. Defendant denies that Plaintiff has, in good faith or otherwise, ever acquired the right to sell the subject property or seek possession thereof.

[1] The Trustors named in the Notice of Trustee’s Sale are not the same as the original Trustors named in the Deed of Trust.  If you were to exercise a power of sale, as you have, for this property, you have forever caused a defect in the chain of title to the real property.

[2] A.R.S. § 33-808 (A) (3), states that the property shall be posted with a copy of the Notice of Trustee’s Sale.  The property has never been posted with a copy of the Notice of Trustee’s Sale.

A.R.S. § 33-808 (A) (4), states that there shall be published a written notice of the Notice of Trustee’s Sale.   No proof exists that such publishing took place in a “Newspaper of General Circulation” as required.

[3] The Trustee’s Deed Upon Sale indicates that the property was “sold” to US BANK NATIONAL ASSOCOCIATION AS TRUSTEE RELATING TO CHEVY CHASE FUNDING LLC MORTGAGE BACKEDCERTIFICATES SERIES 2006-04 by trustee CAL-WESTERN RECONVEYANCE CORPORATION on behalf of “Beneficiary” MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. (as cited in the Notice of Trustee’s Sale) on 2010-05-10 for the amount of $91,947.15.  This is impossibility as no funds have ever been tendered pursuant to this transaction.  Since the grantee acquired the property for no value as described in A.R.S. § 33-404(F) it does not enjoy an exemption from disclosing the beneficiary as required by A.R.S. § 33-404(B).  A.R.S. § 33-404(B) states, “… a grantor who holds title to the property as a trustee, whether or not such capacity is identified on the document through which title was acquired, shall also disclose the names and addresses of the beneficiaries for whom the grantor held title to the property AND…”  Additionally, CAL-WESTERN RECONVEYANCE CORPORATION was never appointed as a trustee by an authentic and authorized party, it has neither capacity to effectuate said transaction nor any protections under Title 33, Chapter 6.1 for its egregious actions.  As the beneficiary was not disclosed on the Trustee’s Deed Upon Sale and the alleged trustee operated without authority, the instrument is void and of no force and effect.

  1. Defendant denies that Defendant ever agreed to the sale of the property by Cal Western, Chevy Chase et al except in accordance with the terms of the deed of trust.
  2. Defendant denies that MERS was legally and factually qualified to be a beneficiary under the Deed of Trust.
  3. Defendant denies that Chevy Chase was in fact the lender or creditor when the  loan was originated.
  4. Defendant denies that the Deed of Trust, Promissory note and other closing documents accurately memorialized the closing of the loan between Defendant and John Does 1-100 who are now known to be unidentified investors who advanced money to Chevy Chase which acted as a mortgage broker.
  5. Defendant denies that the obligation is secured.
  6. Defendant denies that the obligation was in fact securitized but admits that the money trail shows that the party treated the loan as securitized without Defendant’s knowledge or consent.
  7. Defendant denies that MERS ever executed any document in connection with the subject property.
  8. Defendant denies that Cal Western was ever legally in the chain of title as per the title registry in county records, in that the use of Cal Western was a self serving unauthorized act committed under pretense of being a creditor.
  9. Defendant denies that Cal Western was ever substituted for the original trustee.

10. Defendant denies that Cal Western ever received tender of (1) the alleged note from Defendant or (2) cash in exchange for the issuance of a deed or (3) any other consideration for the issuance of a deed in that Cal Western was a willing and intentional partner in a fraudulent joint venture with Chevy Chase et al to issue fraudulent notices of default, fraudulent notices of sale, and conduct fraudulent auctions in which deeds were issued without sale.

11. Defendant denies that Cal Western had any authority to sell Defendant’s property.

12. Defendant denies that Cal Western had any authority to issue a deed to anyone for the subject property.

13. Defendant affirmatively states that the original deed

14. Defendant affirmatively states that the documents upon which Plaintiff relies are forged fabricated instruments without authority or consent from the parties named in those instruments all of which were produced in a process now well-known nationally as robo-signing, in which clerical people with no knowledge or authority relating to any of the transactions or status of files, execute documents as instructed on behalf of people they have never met who purport to have authority to sign documents on behalf of entities with whom neither the robo-signer nor the person named have any authority.

15. Defendant affirmatively asserts that the deed executed by Cal Western was neither a trustee deed nor a valid deed of any kind and transferred no rights, title or interest to the subject property.

23. Defendant affirmatively asserts that the Cal Western deed was a Wild Deed in accordance with industry standards governing the examination of title and the issuance of title insurance, to wit: Cal Western was outside of the chain of title as per the title registry except for fabricated, forged instruments that were created as part of a fraudulent scheme.

24. Defendant affirmatively states that Plaintiff and its agents, servants and employees, each of whom was fully aware of the fraudulent nature of the present claim for possession and title is liable for each proffer and each document  relied upon in furtherance of their fraudulent scheme. The amount of liability is $5,000 or treble damages for each such act.[1]


[1] A.R.S. § 33-420 (A), states, “A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.”

13 Responses

  1. sorry it is marie of maryland……

  2. this message is for mary of maryland.could you email me please?/i am in md. also thanks jeanie

  3. Thank you for always posting excellent information and which is crucial to so many of us. You are helping more people than you know and we all sincerely appreciate all your work and efforts.

  4. […] 22 Jul MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE factual issues for Unlawful Detainer case NFG 7-15-11 Various states have two levels of  jurisdiction that make it difficult to raise the proper issues in eviction even if there has been no preceding judicial action or if the preceding judicial action has been predicated on fraudulent evidence proffered and accepted by the court. I ended up working on the issue and it … Read More […]

  5. This is very well laid out–easy to follow. Great job. Now if the state is a judicial foreclosure state and the foreclosure was obtained in an undefended action through use of the typical assignment of mortgage attached to the complaint “created by” a doc mill which is well-known for that practice–say a Linda Green assignment.

    What steps to seek recovery of posssession for the hapless and homeless family whose house was stolen by this abuse of process? Lets make it easier–the home sits empty among many others?

  6. Sometimes a trial de novo IS your appeal as in Maryland de novo trials from district to circuit Ct

  7. Tnharry,

    There was a discussion over the weekend about the OCC Consent Decree and how effective the foreclosures review would be. My reply had to wait for “moderator review” since I am considered by some to be “questionable” since I tell both sides of the story.

    If you are interested in how to use the OCC Decree, shoot me an email and I will let you know how my attorneys are using it now. And, since the outcome will only be a mod, if anything, I will detail for you my newest product, the Loan Risk Default Score for Modifications.

  8. tnharry ,

    Could you please e:mail me , I’m working on a MSJ in a real property case that doesn’t involve foreclosure ,, I need to ask a real attorney a few questions .. Promise I won’t take too much of your time..

    brian_tracy AT cfl.rr.com

  9. agreed Pat. that’s what i’ve been seeing as well. counterclaim or separate suit that can be consolidated is key. these defenses will not work by themselves in various jurisdictions

  10. Detainer cases in CA are typically all about who has present title to the property. I have seen judges tell the homeowner attorney to not even bring up title or other issues in UD Court.

    However, that said, if an attorney pleads the arguments correctly, and seeks consolidation of the UD with a lawsuit, judges have gone with that approach.

    The good news is that some judges are responding more favorably to homeowners in UD actions. It all depends upon the judge.

  11. often detainer cases do not inquire into the “merits of title” when deciding whether to award possession. in that sort of jurisdiction, complaining or the foreclosure procedure and process would not constitute a valid defense to foreclosure. a counterclaim for wrongful foreclosure, quiet title, etc., should almost always be part and parcel of a detainer defense. also be aware of the roles of the applicable courts. many times the detainer plaintiffs will file in the court of the lowest jurisdiction. from that court, the appeal may or may not be “de novo”, which would allow for a complete retrial of the issues. research and determine what your appellate rights are. many courts at the bottom rung may ignore your defense, instead passing the issues on via appeal. also research the appellate procedures. if you’re dealing with a “de novo” appeal situation, you won’t be bound by anything that happens in the trial court. if not, then you need to get everything you can into the court record by way of evidence and objections to the other party’s evidence.

  12. This kicks ass and takes names!

  13. What timely information! I will check it out to see if I can apply this to my case and in my state.

    Thank you Neil G.

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