Cal. BKR: No Trust Identified, No Relief From Stay

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PRO SE LITIGANT NAILS US BANK — NDEX WEST SHELL GAME

see in RE Deamicis – Real Party in Interest – For Publication

NOTABLE QUOTES FROM CASE:

“A motion for relief from the automatic stay must be prosecuted by the real party in interest… “party in interest” under section 362 must be determined on a case by case basis, with reference to the interest asserted and how that interest is affected by the automatic stay.” [Court refers to In re Veal, 9th Circuit, BAP 2011].

“The problem with this Motion lies in the fact that three different proceedings have now been prosecuted in the state court and in this bankruptcy court by three different entities.

“If USBNA was the wrong party to bring the first 362 motion, then by the same logic the court is not persuaded that the Terwin Trust is the right party to enforce the U.D. Judgment which was not issued in its name.

“The Terwin Trust offers no evidence to suggest that the entity identified in the court pleadings and the U.D. Judgment as “U.S. Bank National Association as indenture Trustee” even exists separate from the specific trust(s) for which it is supposed to serve.” (e.s.)

__________________________________________________________________________________________________

By Dan Edstrom, Senior Securitization Analyst, Livinglies

I am not a lawyer and this is not legal advice.  This email contains my opinions and is for educational purposes only.

This case is HUGE for what it says, which is exactly what Jim Macklin and I have been saying.  In my (non-legal) opinion, California Civil Code 1558 applies (although it was not mentioned directly in this case).  This case will have an impact in a HUGE number of cases where loans were securitized.  This is because in a large number of cases we have analyzed (including our own cases), no trust is identified.  Or where a “trust” is identified, the name given is not the actual name of any trust.  In many cases they list the names of the certificates and not the legal name of the trust.

This case shows that you should focus on these issues where they apply.  Also remember that where a trust is private, there is no publicly available document showing that the trust was actually created.  In my opinion, without presenting the trust document (Pooling and Servicing Agreement, Trust Agreement, etc.), there is no proof that the trust itself actually exists.  For the in RE Deamicis case, the trust is a private trust and the documents showing that the trust was formed and constituted are not available through the SEC.  So even if they somehow overcome the obstacles in front of them now, they will have to prove the trust itself exists and what it can actually do (capacity).

Speaking of where they apply, in Fannie, Freddie and Ginnie cases this is HUGE.  Because they each securitized the loans and do not even identify that a trust actually exists.

In my case I have an assignment of my loan from Mortgage Lenders Network (the originator) to US Bank, NA as Trustee by Residential Funding Company, LLC FKA Residential Funding Corporation Attorney in Fact.  How this would relate to the trust my loan was allegedly conveyed to is beyond my understanding.  The name of the Trust is RASC Series 2005-EMX4.  Residential Funding was the sponsor of the trust.  The attorney in fact is (allegedly) Wells Fargo Bank.  By failing to identify the trust, this assignment is meaningless.

I have a 2nd assignment done some 5 months later.  The assignment this time was from Mortgage Lenders Network to U S Bank NA, as Trustee.  This time they completely changed it, but it is still meaningless.  Plus they never rescinded the first assignment.

My Substitution of Trustee was done by “Wells Fargo Bank NA, attorney in fact for U S Bank National Association, as Trustee” …   Again, a meaningless entry that fails to actual name any entity.

Attached is this case, plus my two assignments and my Substitution of Trustee for reference.

see Assignment of Deed of Trustsee Assignment_07_15_2009

see Notice_of_Substitution_page2

[EDITOR’S NOTE: THE FIRST ASSIGNMENT WAS PROBABLY ROBO-SIGNED. The substitution of trustee, a document often just glanced over, tells a story that will plague  the banks and those in the title business for decades unless the truth be known and told, to wit: Edstrom, homeowner, signed a deed of trust to MERS and his original “lender.” The substitution is signed by (probably robo-signed, forged in other words) Karen Abernathy as “assistant secretary.” (A sure sign of robo-signing is when someone is identified as “assistant secretary” on a document as important as substitution of trustee with the power of sale over hundreds of thousands of dollars in real property.

Karen Abernathy is thus said to have signed this document and is said to be an assistant secretary. The question is “assistant secretary to what and to whom?” It doesn’t say. Above her signature is Wells Fargo Bank, NA, but it is not saying it is acting as a bank. It says it is acting as “attorney in fact.” Any title writer will tell you that without the written power of attorney in recordable form, that signature is worthless. It immediately clouds and probably slanders the title of Edstrom.

But it doesn’t stop there. Karen Abernathy, assistant secretary to somebody somewhere is signing on the signature line for Wells Fargo who in turn is signing for “U.S. Bank National Association, as Trustee.” The question first is “Who is U.S. Bank, and since they are not appearing as a bank, but instead appearing as “trustee” what is the name of the trust for whom they are signing” (see above case). Is U.S. Bank., Trustee an actual entity? The answer is no it isn’t unless it identifies the Trust, which this document does not.

But wait, there’s more. There is nothing in the document that recites the authority of US Bank, Wells Fargo or Karen Abernathy to sign anything in this chain of title since before this time none of them were mentioned anywhere in the chain of title. So what we have here is a document that looks official but says nothing. And that means that ALL ACTIONS FLOWING FROM THE “SUBSTITUTION OF TRUSTEE” ARE VOID, WHETHER IT IS FORECLOSURE, EVICTION, SATISFACTION OF MORTGAGE OR SALE OF PROPERTY TO A THIRD PARTY AFTER A SUPPOSED AUCTION SALE WHICH WAS ALSO NOT REAL.

By the way this judge HAMMERED Ruth in the beginning, basically telling her she was crazy and she could not list the property as part of her estate.  She has been fighting all of her cases in pro per and objecting like crazy – and now it has paid off.  But she still needs a good lawyer.  When Wells Fargo changed their mind as to who the real party in interest was (I think this was a case in Mass. or somewhere on the East coast), they were sanctioned $800,000).Thank you,
Daniel Edstrom
DTC-Systems

54 Responses

  1. This ruling is only to hold off the bank temporarily, but may buy enough time to get an Adversary Proceeding going now that it has been determined the party that won in the UD was not the proper party. Sounds like this case may actually go somewhere.

  2. The insurers would only waive subrogation if they knew there was nothing to gain. They did not want to bear the cost of liltigation with the homeowner, if any, or even the cost of foreclosure which is not their thing to start with for no payoff in doing so. But they could have written the insurance to still participate in recovery somehow, but they didn’t, so I hear.
    The question remains: why in the sam hell would they write these deals? The answer to this question may reveal a lot of things.

  3. Well, I said that wrong as to subrogation and the car accident. Your insurance company has the right to collect from you after your successful suit against Joe Hit Me, UP to the amt it has expended on your car and your medical.

  4. Another thing which has to be determined is WHEN the insurance kicks in.
    Some people think it’s at default by the borrower. Others think it kicks in
    only after the dust settles and the “loss” is known, and that would not be known until at least the foreclosure sale or maybe even until the house is then re-sold.
    I’ve heard that the insurers did not even have a ‘subrogation’ clause in their insurance contracts with whomever (the banksters? the investors?). This means the insurer who had to eat it on the loss has no right to participate in any recovered amts by sale or whatever.
    **Why in the sam hell would an insurance company do such a thing – waive subrogation?** This has got to be right up there in reasons for the economic crisis. (think AIG) It’s like this: if you have car insurance and your insurance co. has to pay for your car and medical bills, and then you sue Joe Hit Me for megabucks or whatever. The insurance company has a right to collect from you what you got out of Joe Hit Me. This is subrogation simply put. Now, in the case of homes underwater because they were done on bs inflated appraisals, say, there would be nothing to capture in
    subrogation by the insurance companies. But, dang, when the policies were written, they couldn’t have known this, unless they predicted it or did in fact know it, and why then did they write the stupid policies? Salesmens’
    production bonuses??? I mean, why?
    I don’t know – over my head – what this might otherwise mean legally. This again depends on when the insurance proceeds are paid and if it’s a percentage of the loss or the whole banana. If they’re only paid after the dust settles, it would probably be different than if paid on default. If they’re paid at default in entirety and not a percentage, then it’s a done deal, and any attempt to go after the homeowner would be double recovery. But then, that’s only true if the insurance covers the entire default loss. One way or another, these insurance proceeds need to be examined for the ramification to what you owe and don’t owe. And that unfortunately finds us back at paths to discovery. I’m not an attorney – I think I’ve framed the argument nonetheless. Now I think it would be grand to see attorneys (if not pro se’s) frame them even better so that a court would agree it needs this information to make an informed decision (add it to the list, your honor!)

  5. sorry my message to debt collectors got garbled:

    here it is:

    http://www.textfiles.com/art/fuckyou.txt

  6. good point carie: geared toward.

    This whole debt collection game is a virus affecting society and dragging down the economy and stopping it from going forward. Either you are hired to collect debts for another or nothing further. Debt buyers of defaulted written off debt is a scam on people and society.

    You so called debt collectors have been duped into thinking you perform some useful purpose. You are scum scamming people. And I say this:

    _____ __ __ _______ __ __
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    |__| \________/ \______| |__| \__\

    _____
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    ____ ____ _________ ___ ___
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    \ \ / / | _____ | | | | |
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    | | | | | | | | | |

    | | | |_____| | | |___| |
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    |___| \_________/ \___________/

    X-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-x

  7. @johng. Yves Smith has a lot of great articles on Naked Capitalism about the trusts. Lots of good comments there too. Have you posted any more articles on Titlesource recently? I’ll have to go check out. I enjoy your articles. Thanks.

  8. @carie – are you referring to the case posted here or PSA’s generally?
    I don’t think I read the case posted here – my comments were purely generic in regard to banksters not getting relief from stay coming back after a bk is discharged. Tnharry noted that the bankster would only come back later, so there was no permanent resolution in the homeowner’s favor in the posted case, which is true (unless that case found the trust is empty and that makes the bankster toast). I was just looking at the bar(s) for permanent resolution.

    If you are referring to the case posted here, and the court found the trust was empty for non-compliance with the PSA at issue, that would be another story as to what the bankster could do or allege post-relief if the homeowner did nothing else dispositve about the bankster’s claim during the pendancy of the bk.
    Trusts may well be empty for non-compliance, securitized notes and their collateral may well be themselves merely evidence of collateral debt obligations in favor of the investors by the depositors, issues, or whomever for all I could know but sometimes think. MS gives the big tease, but I can’t make sense of his arguments nor do I know if they are consistant with the trusts being empty for any reason. But, I have not seen a court rule a trust is empty, even if it is. Sometimes I believe the whole thing was in fact one giant scam and the investors didn’t ever purchase the notes or their collateral, only a right to payment, when made, on them or with a guarantee of payment even when not coming from the homeowner. But if the investors knew this or relied only on the homeowners’ payments, the scam was that those collateralized assets, the note and its collateral, formed a solid basis for payments because the loans were written not only as the equilavent of ‘junk bonds’, but with a design to fail for the benefit of others who would benefit from their failure. This one depends on just who the hey was the beneficiary of any default insurance. This gets complicated to me, anyway, if the investors only had a right to payment. If so, then maybe the issuer or whomever benefitted from the swaps or insurance and actually owned the note got paid off, leaving the investors, if no payment guaranteed, messed over good. The issuer got paid off for a note which forms the basis for a payment guarantee or if not guarantee, then the expectation of payment by the homeowner. Then you have to ask if the issuer or whomever got those insurance proceeds is the party who owned the note, why are they bothering you and me for the colllateral (our homes) on a retired note? And this is true if the investors owned the notes and were or should have been the beneficiaries of any credit default swaps or insurance. I tried hard to say this right!

    Believe me, I have no doubt, none zero nada, that those kids didn’t do what they were “supposed to” to get those notes properly endorsed and delivered and the dots assigned even if those assignments were delivered but not recorded, with MERS baby as the alleged nominee placeholder of record. Nor do I know if they are ’empty’ because they were never to be otherwise (just cdo’s as I said), exactly what this would mean. I hope someone else does.

    I shudder to think what actually must be argued and adjudicated to determine that the trusts are empty, especially if a court starts out at it must be so. Maybe I could capsulize our angst. Some of us got suckered with poison carrots to take lousy loans. (reminder: all loans were NOT liar loans) More of us feel no one may enforce against our homes for one reason or another, and that includes that the debt has been retired by one form of insurance or another. Is this not so?

  9. @johngault–you say:

    “Relief from stay allows the bankster to pursue its alleged rights and remedy for the default. In non-judicial states, this means they will initiate foreclosure or continue where they were pre-bankruptcy.”

    Except that the PSA was not followed. The trust is empty so how can the trust initiate foreclosure???

  10. @cubed 2k—from one of your links:

    • The debt buyer business model is geared solely toward default judgments. Plaintiffs stop pursuing a lawsuit once a defendant retains a lawyer, and instead devote
    their resources to obtaining default judgments which do not go before a judge and
    require minimal if any proof.
    • Debt buyers do not possess the evidence to prove their claims in the first place.

    “The debt buyer business model is geared solely toward default judgments.”

    Just like ANONYMOUS has been saying about the fake “mortgages”: MANUFACTURED DEFAULT.

  11. SURVEY RESULTS FROM MORTGAGE SERVICING NEWS

    Will servicers have to redo tens of thousands of foreclosures because of lawsuits against MERS?
    Yes 60%
    No 40%

  12. Oh, the second thing was that when a bankster is denied relief stay, it may allow the homeowner to avail himself of remedies / paths not known that date, the ones we’re all working on.

  13. @tnharry – well, that’s true – When a bankster does not get relief from stay, they’ll come back after the bk discharge. Still, two things occur to me.
    1) what if any preclusive effect might this have later? That may be difficult to determine without a good deal of consideration because a relief from stay hearing is not an in rem proceeding and is actually not preclusive of other rights, that is, if a bankster gets relief, a homeowner may yet meet the bankster in state court on issues not adjudicated by the mfrs and its hearing.(such as a defective nod, etc) I haven’t met an attorney who believes this, tho, so maybe I got it wrong. I have some case law in support, but……….. Relief from stay allows the bankster to pursue its alleged rights and remedy for the default. In non-judicial states, this means they will initiate foreclosure or continue where they were pre-bankruptcy. It would be on a homeowner to file a state court action to fully litigate state court issues. Unfortunately, and here I risk the noose again, attorneys generally practice in one area or another.
    Attorneys who don’t practice bk may not know that the relief from stay is not singularly or at all dispositive of rights. Even one attorney who does practice bk law says the rfs is preclusive, you’re toast, it’s over.

    We can be sure a bankster who DID get relief from stay would posit it was preclusive of further argument. Now, when it’s the other way and the bankster did NOT get relief from stay, it will argue later (when the bk is discharged) it wasn’t preclusive at all. In other words, and at the risk of the wrath yet again, the bankster will find or at least make the arguments which might demonstrate that relief was NOT preclusive, but as far as I can tell, the homeowner’s team is NOT finding the arguments that relief from stay is not preclusive.
    Now I can’t remember the second thing which came to mind. Maybe I’ll think of it later! But I will add this (it’s not the same thing but related): If you’re in bk and your bankster has already gotten relief from stay but not gone to sale, you may ask that the bk court essentially reinstate the stay for a few very specific reasons and the pleading is critical:
    “…res judicata is not a bar to rule 60(b) relief because that doctrine precludes a COLLATERAL attack on a final judgment and does not preclude a DIRECT attack on that judgment addressed to the court that rendered it.”

    Bearing in mind as always that I’m not an attorney, a ‘collateral attack’ is generally one which attacks a ruling which is res judicata (“the thing
    decided”) and that is over for one reason or another. It often refers to
    an attack of a ruling made in one court by arguments made to another court. The system does not allow one court to sit as an appeal court for another court (except an appeals court which has juris to recon a lower court’s decision).

    This quote above is found in Rodriguez v. Doral Financial Corp 1st Circuit Bk App Panel, BAP No. 04-13097, which I’ll post momentarily at scribd and link. One will likely have different considerations than Rodriguez had and one’s own may hold water or they may not. Rodriguez imo points to reasons a court might recon its order for relief from stay or issue an injunction. The point is that a court may reconsider an order lifting stay. If one’s home has been sold, obviously such a request would be moot.

    So what we would look at is what is actually adjudicated in a mfrs motion and hearing and to what then ‘issue preclusion’ would apply as to bar such considerations/arguments from being brought in state court post-relief from stay. And the long and short of the first few paras here is that the bankster will find arguments that when it was denied rfs it was not preclusive of its rights and interests, (yes, at this point for me this is speculative, but if history is a clue….) whereas homeowners are not finding them.

    I appreciate frustration with what appear to be no-resolution cases, but as I always say, I think we’re it to fashion our remedies and do that we will if everyone continues to contribute. Now if someone would kindly pick up where I leave off…..or even bash my thoughts in favor of better ones……..
    .

  14. ‘Zactly…and the carnage wrought by the sociopathic materialists in power grows…and grows…and grows…

  15. “Sound screwy? That’s because it is. But that’s how debt buyers roll. They get to do this because they are rarely challenged on the practice. Debt buyers and debt collectors know the vast majority of consumers do not respond to the court summons and they get default judgment on inflated balances that are suspect.”

    rarely challenged, that is where the figure of 95% comes from – it means 95% of defaulted borrowers do not show up in court if they get sued. It means 95% of the people are low hanging fruit. It means you need to climb up the tree and become a top of tree fruit that nobody reaches and SOL is your friend.

    I climbed the tree by ignoring all debt collector communications because they are not collecting for another. And no original creditor has informed me that Joe SUcker Collections is now collecting for them, the original creditor. If one of these false debt collectors tries to sue me, I will immediately sue them for FDCPA and RICO and Mail Fraud. This is my strategy.

    http://getoutofdebt.org/27123/debt-buyer-pinky-swears-cut-the-cheese-not-the-mustard

  16. carie from your link:

    “Fannie Mae has a program to sell houses to local municipalities for a few hundred dollars. Wells Fargo has donated 800 homes since 2009.”

    Read more: http://curiouscapitalist.blogs.time.com/2011/08/01/bulldoze-the-new-way-to-foreclose/#ixzz1TtXuu2XQ

    IS’nt THAT SPECIAL, FIRST FORECLOSE ON SOMEBODY, THEN SELL THEIR HOME FOR A FEW HUNDRED. And they can’t do principal reduction????????????????????

    cubed2k says – no, they can’t do principal reduction because they can’t collect from the insurance for the full amount.

    cubed2k replies – oh, I get it. More money is made on foreclosure and they just do some token mods to make headlines.

  17. Right, tn—a ruling showing that a bogus “Trust is not a real party in interest whose rights are affected by the automatic stay” means nothing…uh huh…ok!

  18. @mkd = johngaultwhoam@yahoo.com

    Someone just accused me of pretending to be an attorney here at LL. Anyone who is a regular knows that is not the case. Nonetheless, for the millionth time: I am not an attorney and nothing I ever say or write is legal advice. I share the interests of everyone, well mostly, here in seeing that we find paths to saving or regaining our homes standing on the law.
    Some people have a distinct bias against pro se litigants imo and holler that pro se’s make bad law and threaten the success of other cases, a proposition with which I have disagreed. Bad arguments don’t make bad law – they make bad arguments. Does this cause a judge to groan when he sees any action to save a home, as in “Oh, *&!$%!*, not this again”? Got me, but it shouldn’t.
    There is no doubt presenting pleadings and negotiating procedure and the rules of evidence pro se is a steep uphill slope. Okay, call it slippery even. Literally. And it can end up costing a pro se more than if he or she played dead and just gave their homes to a bankster. It’s a mistake to think otherwise. People who don’t want to go quietly into that dark night know this or should.
    Still, if you think you can take it, you have a right to do whatever you think you can if you don’t have an attorney and cannot afford or find one.

  19. in the end though, another case that doesn’t matter. not getting relief from the stay has no effect long term. they wait until the case discharges and do whatever they need to do outside of BK court.

  20. Said another way, if the Origination Entity does not transfer the DOCS to the Trust who claims they are in possession by a BLANK ENDORSEMENT by a Unauthorized Source who held Stolen Property, the someone should be in jail for Perjury, Wire Fraud, and SEC Violations.

  21. What happens when your Promissory Note is INDORSED IN BLANK whereby a Default, and a Trust is Claiming they are Owners of Note/Mtg??

    Could a defense be made that the BLANK ENDORSEMENT was proffered by Criminal Activity giving rise to FRAUD because the NOTE was STOLEN PROPERTY, and being held by a Criminal Entity.

    IF your Mtg is a function of a Security Instrument, and the Originating Entity NEVER TRANSFERS THE DOCS to the TRUST to perfect the security interest, then the Mortgage is fatally defective, AND A CRIME exist as to the whereabouts of a STOLEN NOTE, and DEED OF TRUST!

    I dont think that STOLEN NOTES & MORTGAGES qualify for BLANK ENDORSEMENTS. Rather than have you believe they were LOST?? Bull Shitz! There should have been a Warrant issued for the arrest of the person who Endorsed In Blank, and the Case thrown out of court WITH PREJUDICE!

  22. Sorry again: The first # is written contract
    ( #1) Written contracts (2#) Oral contracts (3#) Promissory notes( 4#) Open accounts (including credit cards)

  23. This chart comes out a little better: : Even though a debt is an absolute promise to pay, if the Statute of Limitations expiring is in force and the creditor tries to force you to pay the debt, you have the right not to fulfill the promise (debt). You may also read the FTC’s publication on Time Barred Debts State Written contracts Oral contracts Promissory notes Open accounts (including credit cards)
    Alabama 6 years 6 years 6 years 3 years
    Arkansas 6 3 5 3
    Arkansas 6 3 5 3
    Arkansas 6 3 5 3
    Alaska 6 6 6 6
    Arizona 6 3 5 3
    Arkansas 6 3 5 3
    Arkansas 6 3 5 3
    California 4 2 4 4
    Colorado 6 6 6 6
    Connecticut 6 3 6 6
    Delaware 3 3 6 3
    D.C. 3 3 3 3
    Florida 5 4 5 4
    Georgia 6 4 6 4
    Hawaii 6 6 6 6
    Idaho 5 4 10 4
    Illinois 10 5 6 5
    Indiana 10 6 10 6
    Iowa 10 5 5 5
    Kansas 5
    Kentucky 15 5 15** 5
    Louisiana 10 10 10 3
    Maine + 6 6 6 6
    Maryland 3 3 6 3
    Massachusetts + 6 6 6 6
    Michigan 6 6 6 6
    Minnesotta 6 6 6 6
    Mississippi 3 3 3 3
    Missouri 10 5 10 5
    Montana 8 5 8 5
    Nebraska 5 4 6 4
    Nevada 6 4 3 4
    New Hampshire 3 3 6 3
    New Jersey 6 6 6 6
    New Mexico 6 4 6 4
    New York 6 6 6 6
    North Carolina 3 3 5 3
    North Dakota 6 6 6 6
    Ohio 15 6 15 6
    Oklahoma 5 3 5 3
    Oregon 6 6 6 6
    Pennyslvania 6 4 4 6
    Rhode Island 15 15 10 10
    South Carolina 10 10 3 3
    South Dakota 6 6 6 6
    Tennessee 6 6 6 6
    Texas 4 4 4 4
    Utah 6 4 6 4
    Vermont 6 6 6*** 6
    Virginia 5 3 6 3
    Washington 6 3 6 3
    West Virginia 10 5 6 5
    Wisconsin 6 6 10 6
    Wyoming 10 8 10 8
    * Six years if contract is for payment of money. ** Five years if promissory note is added to a bill of sale. + The applicable statue of limitations in Maine and Massachusetts on a debt owed to a bank or on a promissory note signed before a witness is 20 years. (Me. Rev. Stat. Ann. Tit.14, s 751; Mass. Gen. Laws ch. 260, s 1.) *** Vermont’s statue of limitations on a promissory note signed before a witness is 14 years. Source: Bankrate.com

  24. Sorry the years came out different than the article page. I will try to find another one that comes out better: for instance look at WA is 6 years for both written contract and promissory note.

  25. Statute of Limitations on Debts

    Last Updated: May 2, 2011
    Below are the State Statutes of Limitations for various kinds of agreements. All figures are in years.
    Oral Contract: You agree to pay money loaned to you by someone, but this contract or agreement is verbal (i.e., no written contract, “handshake agreement”). Remember a verbal contract is legal, if tougher to prove in court.
    Written Contract: You agree to pay on a loan under the terms written in a document, which you and your debtor have signed.
    Promissory Note: You agree to pay on a loan via a written contract, just like the written contract. The big difference between a promissory note and a regular written contract is that the scheduled payments and interest on the loan also is spelled out in the promissory note. A mortgage is an example of a promissory note.
    Open-ended Accounts: These are revolving lines of credit with varying balances. The best example is a credit card account. Please note: a credit card is ALWAYS an open account. This is established under the Truth-in-Lending Act:
    TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602
    § 1602. Definitions and rules of construction(i) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.
    Keep in mind, though, that the state statute of limitations on a credit card may come down to whether the agreement is in writing or not; whether it meets the required elements of a written contract. For instance, in Missouri if the creditor is able to produce a written credit card contract, then the 10 year statute applies. If the creditor cannot show the existence of a written contract, then the 5 year statute would apply – credit card or not. Here is case law in Missouri to illustrate this point:
    In Capital One Bank v. Creed, 220 S.W.3d 874 (S.D. Mo.2000), the company alleged the parties entered into a contract, whereby the company would extend credit to the customer. The company alleged that the customer breached the terms of her contract by failing to pay the amounts for which credit was extended. The customer denied the allegations and asserted the affirmative defense that the action was barred by the statute of limitations. The appellate court ruled that the action was barred by the five year statute of limitations under Mo. Rev. Stat. § 516.120 (2000). The customer made a partial payment on December 2, 1999, and the company’s petition was not filed until January 3, 2005. The ten year statute of limitations under Mo. Rev. Stat. § 516.110 was not applicable because the company did not produce a written promise by the customer to pay money.
    Why should you care about the Statute of Limitations (SOL)
    When does the Statute of Limitations start on a debt?
    For Statutes of Limitations on judgments, go here.

    State
    Oral
    Written
    Promissory
    Open-ended Accounts
    State Statute: Open Accounts
    AL
    6
    6
    6
    3
    §6-2-37
    AR
    3
    5
    3
    3
    §16-56-105
    AK
    6
    6
    3
    3
    §09.10.053
    AZ
    3
    6
    6
    3
    §12-543
    CA
    2
    4
    4
    4
    §337
    CO
    6
    6
    6
    6
    §13-80-101
    CT
    3
    6
    6
    3
    §52-581
    DE
    3
    3
    3
    4
    §2-725
    DC
    3
    3
    3
    3
    §12-301
    FL
    4
    5
    5
    4
    §95.11
    GA
    4
    6
    6**
    4
    §9-3-25
    HI
    6
    6
    6
    6
    HRS 657-1(4)
    IA
    5
    10
    5
    5
    §614.5
    ID
    4
    5
    5
    4
    §5-222
    IL
    5
    10
    10
    5
    735 ILCS 5/13-205
    IN
    6
    10
    10
    6
    §34-11-2
    KS
    3
    6
    5
    3
    §84-3-118
    KY
    5
    15
    15
    5
    §413.120
    LA
    10
    10
    10
    3
    §3-118
    ME
    6
    6
    6
    6
    §14-205-752
    MD
    3
    3
    6
    3
    §5-101
    MA
    6
    6
    6
    6
    c.260, §2
    MI
    6
    6
    6
    6
    §600.5807
    MN
    6
    6
    6
    6
    §541.05
    MO
    5
    10
    10
    5
    §516.120
    MS
    3
    3
    3
    3
    §15-1-29
    MT
    5
    8
    8
    5
    27-2-202
    NC
    3
    3
    5
    3
    §1-52(1)
    ND
    6
    6
    6
    6
    28-01-16
    NE
    4
    5
    5
    4
    §25-206
    NH
    3
    3
    6
    3
    382-A:3-118
    NJ
    6
    6
    6
    6
    2A:14-1
    NM
    4
    6
    6
    4
    §37-1-4
    NV
    4
    6
    3
    4
    NRS 11.190
    NY
    6
    6
    6
    6
    §2-213
    OH
    6
    15
    15
    6
    §2305.07
    OK
    3
    5
    5
    3
    §12-95
    OR
    6
    6
    6
    6
    §12.080
    PA
    4
    4
    4
    4
    §5525
    RI
    15
    15
    10
    10
    §6A-2-725
    SC
    3
    3
    3
    3
    SEC 15-3-530
    SD
    3
    6
    6
    6
    §15-2-13
    TN
    6
    6
    6
    6
    28-3-109
    TX
    4
    4
    4
    4
    §16.004
    UT
    4
    6
    6
    4
    78B-2-307
    VA
    3
    5
    6
    3
    8.01-246
    VT
    6
    6
    5
    3
    §3-118
    WA
    3
    6
    6
    3
    RCW 4.16.080
    WI
    6
    6
    10
    6
    893.43
    WV
    5
    10
    6
    5
    §55-2-6
    WY
    8
    10
    10
    8
    §1-3-105
    ** Georgia Court of Appeals came out with a decision on January 24, 2008 in Hill v. American Express that in Georgia the statute of limitations on a credit card is six years after the amount becomes due and payable
    The material provided in this table for informational purposes only and should not be construed as legal advice. Although the material is deemed to be accurate and reliable, we do not make any representations as to its accuracy or completeness and as a result, there is no guarantee it is not without errors.
    __________________
    Why should you care about the Statute of Limitations (SOL)?
    Every day, consumers pay off collection accounts and charge-offs which they do not have to pay off because the Statute of Limitations has already expired for the open account. Consumers pay off these accounts because the accounts still appear on their credit reports.
    This information can be a powerful weapon in unburdening yourself of old debts, as creditors have a limited time in which to sue you. Remember: the Statute of Limitations begins to run from the day the debt – or payment on an open-ended account – was due. Also, this has nothing to do with how long an negative credit item can remain on your credit report. To view these credit reporting rules, click here.
    Consumers also pay off these accounts when they are not on their credit reports. Even though an account was removed from their credit file, a collector watched their credit report for any activity (actually the computer was watching any credit activity). When the collector spotted the activity, he called the consumer for payment. All the consumer needed to say to the collector was, “I have an absolute defense–the Statute of Limitations has expired.”
    The Statute of Limitations does not cause your debt to go away after it expires. If the creditor files suit, the consumer has an absolute defense. The consumer must offer the new evidence to avoid a judgement. The evidence will consist of papers the consumer files to support his claim. If the creditor sues you, and you do not prove to the court that the Statute of Limitations expired, you will have a lost lawsuit and a judgment against you.

  26. […] Livinglies’s Weblog Filed Under: Foreclosure Law News, Foreclosure News Tagged With: crisis, foreclosure, […]

  27. @ Johngault what is your e-mail address I will send you the assignment. Thanks mkd

  28. @Marie,

    Marie, don’t lose hope. Although things appear quite dismal right now, there will be a great unraveling before too long. The fraud that is foreclosure can only be upheld for so long. Like a bamboo hut in a typhoon, these illegal acts will be shredded before long, forced to a reckoning.

    Look in your state statutes. Some states have laws allowing 15 years to recapture your home after foreclosure fraud is shown. When THEY can no longer pull off the heists any longer, when the government loses control, the title companies wake up, or the masses start revolting or what have you, there will be a time to reconcile.

    Although incredibly unpleasant to say the least, bide your time. It’s coming.

  29. It’s really true…I don’t even bother telling someone about it unless they can relate in some way…otherwise their eyes glaze over when you try to explain it…I just talked to someone this morning that was VERY interested—now that her servicer told her last week that they were going to begin foreclosure unless she gave them $74,000…after she had DILIGENTLY and DUTIFULLY been paying a “trial plan” for a “loan mod” for a year…just trying to do the right thing…then they tell her “Oh, we didn’t get your payment on time, so we’re going to foreclose…” Which was a total LIE. I told her all about sending a dispute of debt and QWR, etc.,, and how they have NO STANDING…
    It DOES affect everyone though, even if they don’t have a “house”…just look at the headlines!

  30. BOOM SHALKA LAKA!!! You can not hide behind a presumption you do not have!!!! In Arizona the banks hide day after day, behind a presumption they do not have ARS 33-811 B states in part “The trustee’s deed shall raise the presumption of compliance with the requirements of the deed of trust and this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing and posting of notice of sale and the conduct of the sale. A trustee’s deed shall constitute conclusive evidence of the meeting of those requirements in favor of purchasers or encumbrancers for value and without actual notice”. The key word are purchaser for value without notice. First off the bank had notice. Second the bank did not purchase for value. They made a credit bid. There is no presumption.

  31. Carie:

    Mu brother and i went over the scam numerous times and he paid appropriate lip service 

    What people don’t get is that you are targeted for foreclosure. Then they start harassing you, adding fees etc etc you can never get to the end of it.  I paid my mortgage until they forced me into default 3 times over nothing.  Cost me 15k extra in 2 years. I finally said no more.  Then I found this website and I realized what was going on.

    My brother and I aren’t speaking.  I realized he was saying one thing while thinking I got my just desserts.  

    John q public doesn’t get it and won’t until it happens to them

  32. Marie—what did your brother say when you told him it wasn’t a “real” mortgage?

  33. mkd, look up MERS robo signers, and all the MERS is dead articlies. Also the Marie O’Donnell forensic audit.Guldi Trial News and “Surprise” (merged) in 631 Countywide …
    631politics.yuku.com/…/Guldi-Trial-News-and-Surprise-merged?pa… – Cached
    20 posts – 7 authors – Last post: Jul 9
    “My registry is a crime scene as evidenced by this forensic examination,” O’Brien said. … at the Massachusetts Southern Essex County Registry of Deeds According to O’Brien, McDonnell discovered that 75 percent of the …. and the DVD of “Inside Job” during opening arguments and tell jurors to read …
    see Massachusetts Register of Deeds John O’Brien and Forensic Mortgage …
    4closurefraud.org/…/massachusetts-register-of-deeds-john-obrien-an… – CachedJun 10, 2011 – Massachusetts Register of Deeds John O’Brien and Forensic Mortgage Fraud Examiner Marie McDonnell find former Vice-Presidential candidate …
    Challenge Your Lender – Page 15
    challengeyourlender.com/blog/page/15 – CachedJul 9, 2011 – Richard Zombeck: Mass Register John O’Brien’s Presentation Draws Crowd of Recorders in Atlantic … uncovered at the Massachusetts Southern Essex County Registry of Deeds … McDonnell’s Report includes the following key findings: … a full forensic audit of all registry of deeds in Massachusetts. …

    and all the reports on MERS and the robo signers. I can give you copies of real fraud assignments both recent and in the past of proof of all our registers being a crime scene, mine are from counties in Washington State if you want to e-mail me at Shelleystotalbodyworks@comcast.net and a copy of the forensic audit. And other reports you should read.. The “Wall Street and the Financial Crisis;Anatomy of a Financial Collaspe” that should have put hundreds of bankster in jail to catch up to speed.

  34. ETolle. 

    Your post has been my distinct  impression since I fell into this pit of misery.  Few understand or care about the five million Foreclosures so long as they aren’t personally affected.  Most talk about foreclosure as a consequence of personal failure.   

    Even my brother who claimed to “understand,” remarked, “they (meaning me) should have paid their mortgage.).  He can’t comprehend being TARGETED by the imposters. The bank took my house mar 31 of this year and It’s already been resold!   Post “credit bid”!  For less than half its value!  The bank made a quick tidy pile.  

    I wish it HAD been bulldozed.  Then the 64k in improvements I made to the property wouldn’t have been stolen with the property to be essentially gifted to some opportunist with a fistful of cash and not too Manu scruples about why they got the property so quick and so cheap

  35. Everyone has the right to do his or her best to protect their property. This person had that right too! Most of us have no choice but to pro tect ourselves Pro Se. We are not lawyers. We have the right to try our best. This man at least had the guts to do what a lot of people do not have the guts to do. We are all still learning. I ‘m an sure their are a lot of lawyers who make mistakes. I hope this humiliation of someone trying to protect his property does not scare away Pro Se’s from doing their best and to fight for your rights. Not all of us are superior humans!

  36. love the way you write, e.tolle…

  37. @carie,

    What’s really telling about that article you posted is what’s underneath the story….both literally and figuratively….the comments. The masses are clueless to the crimes and suffering going on all around them.

    Many of the commentors bitched about freeloaders not paying their bills…i.e. let them foreclose! Others defended the honorable banking community for letting people stay in their houses for so long before foreclosing.

    Only 1 out of the 12 folks blamed the financial industry for the ills of society. The rest are clueless. Watch the evening news and there’s no mention of the issues facing millions of Americans forced from their homes. The pillage is silent and uncontested, like a plague moving silently through a village.

    USA Today did do a story today on a tent city in the NE. Once productive members of society….a former teacher….living in plastic huts. Yes, it’s better than famine ravaged Somalia, but America’s problems are 100% man made, all tied to the desire for extreme wealth.

    Until the presses start rolling with criminal prosecutions on every newspaper’s headline, and the evening and morning TV news feature video clips of perp walks by Armani clad banksters, nothing will change.

    Since our government does so little to discourage rampant thievery or to jail the criminals in the foreclosure industry who are caught, the question becomes not why there are so many fraudulent acts, but why there are so few. It’s easy pickings for these scumbags.

    Also buried in that story was the “news” that Obama is going to work on yet another HAMP styled program. More Prozac for the masses. That should make the voters feel all warm and fuzzy leading up to 2012. Bread and circuses. Then after the election, the program will be unplugged from life support, like all of the other government fixes.

    Bandages on oozing fraud. Strange times these.

  38. Dan

    Once again the court redeems the borrower in a hearing but no release of lieN. And once against the court errs showing it is not competent in diversity nor jurisdiction over the matter. Survey say’s “kiss them for me”.

    In possessory rights are the sale and conveyance that transfers all title and interest that the party executing the deed of trust had in the property sold at the time of its execution, together with all title and interest that party may have acquired before the transfer of equitable title into trust.

    The party executing the deed of trust or assigns of that party have no right or privilege to redeem the property, unless the deed of trust so declares.

    Dan, you’re an analyst now, that’s called a security deed. You know that, rights champ? That elevates a trust deed from a security interest to bare and legal title and then up a notch to have stolen from you a non possessory right to equitable title. We discussed this in your matter two years ago – right?

    The lender acts as a purchaser of value at a sale and all assigns of the lender, after the execution of a deed to the lender by the Robo Blow Ho to lender successors as purchaser, by the trustee. That’s Business Trustee and indenture under NY or Delaware Trust statutory scheme.

    Do you get it my analyst friend (were you on Wall Street or something)? Your pretender lender & statutory fairy tale gender is entitled too, but relinquishes the possessory rights as alleged described in the deed as against the party executing the deed of trust OR ANY OTHER PERSON CLAIMING SUCH UNDER A REENACTMENT OF THE STATES FORECLSOURE SCHEME, by, through or under that party MAKING CLAIMS. -make him stop – LL, someone please – The form and subtance of the matter Its concealed and never introduced in claims brought before the US District BK COURT; after recording the ASSIGNMENT TO THE deed of trust in the recording district where the property is located.

    That’s not what the deed said though, right past client now turned expert analyst? All that is missing is the proper recital of compliance with all requirements of law regarding the mailing or personal delivery of copies of notices of default in the deed executed under a power of sale is prima facie evidence of compliance with the requirements. It is no less fact that the recital is conclusive evidence of compliance with the requirements in favor of a bona fide purchaser or encumbrance for value and without notice AT A SALE BY TRUSTEE.

    Know what you’re reading and research what you’re commenting on ….These lenders , by their actions, and now the Courts are begging to give back the homes . I mean they are Hell Bent on returning title and people are pleading gibberish are letting them off the hook.

    Expert.Witness@live.com
    M.Soliman

  39. @mkd – you said:

    “So the new trustee assigned it to themselves it what I take it as.”

    jg: sounds like it

    “Now we come to the dates. There was no date stamped on nor was a date written that JS signed this assignment. There is the date the notary signed which is 12/17/08. So I know the date the notary signed but not JS.”

    jg: disregarding any other considerations relevant thereto, an undated assignment may not be effective. The notary is supposed to be swearing
    that JS signed the assignment in his presence on a date certain. That date certain is to go in the notary’s book. (yeah, right) That’s the point of a notary, to identify the signor by id or personal knowledge and the date the notary served as a witness to that signature. I mean, otherwise what would the notary himself be ‘swearing’ to? I witnessed the signor signing, but only got around to the entry in my book and swearing to it at a later date?

    Maybe there is a presumption the signor signed on the notary’s date – I don’t know. I’d be interested in seeing that assignment. You could email it to me or post at scribd. If you are in a title-theory state, the assignment constitutes a transfer of legal title to real property and surely that must be dated, just like a deed.

  40. Controversy to Claims: Once a dividend is declared the stock holder becomes the creditor to the amount of the dividend paid in bad faith and can sue to recover.Shareholdrs have the right to insist on proper distribtion of profits and assets in a liquidation (preferred) where there existes clear proof of trustees breach of discretion and bad faith in its dealings.

    Arguments : NYSE Bank entity; Trust Held assets fo corporation; Competing Businesses, statutory conflict; Trust assets held remote and isolated; conflict of interest.

    Allegations: Unjust enrichment ; Mis-joinder of parties to trust; breach of trust; Estopple by lache; Slander of title; unlawful enforcement under code; Avoidance ; Concealment of release of lien;

  41. According to Rooker-Feldman Doctrine, a federal judge can rule on a matter previously decided in state court ONLY if that judgment was void ab initio. R-F was set in place for the purpose of preventing federal courts and judges from tampering with state court decisions, but there is that small exception to the rule. In this case, it appears this judge knew that, and he knew a bankruptcy judge could not do that, so he protected himself very well. He said that the Unlawful Detainer would need to be amended or corrected, so he did not render it void or overturn it, which he cannot do. Thanks Dan, for this post!!!

  42. @carie – very simplistic summary, but a federal court can’t revisit something already decided in state court

  43. Oh that’s huge for my people in California….

    http://www.youtube.com/watch?v=64UBGqtkJ9o

    Meanwhile keep an eye on the developments re: my conversation with Senator Menendez’ Office vis a vis his 20 July 2011 letter regarding robo-signatures and standing, etc. etc.

    This is serious stuff folks…. I could have been shot. Think about it. All because Phelan, Hallinan & Schmieg were afraid of my camera? Then they lied about know I was involved when they called the Chief of Security?

    Have they no shame? Don’t answer that.

    http://mortgagemovies.blogspot.com/2011/08/kingcast-downgrages-nh-senator-kelly.html

    As I noted to you per our phone call this afternoon, my intentions regarding this matter are to:

    1. Follow the offering of your intern who suggested I contact your office on hearing that Phelan, Hallinan & Schmieg had telephoned the police on us and then failed to even tell the police why they did it. You may recall my first question to you was whether you had any knowledge of this issue at all, because I noted it was very involved and I needed you to understand everything about the facts of this case and about my background as an industry professional.

    2. Respectfully demand a public reprimand from the Senator’s office regarding this behavior: As I mentioned, as a former LE Attorney I can tell you that you can’t just go indiscriminately calling the police on professional people just because you are afraid to answer their questions. What if the responding LE saw my black camera at full focal length 560mm and thought I had a gun and shot me or the subject of my report? I could have very easily happened all because they didn’t want to answer a question. Think about it. Now you can understand why you could hear the concern and righteous indignation in my voice. That indignation is shared by many others who will be contacting your office under separate cover.

    3. Respectfully request a copy of any and all consumer/constituent complaints issued since 2005 against, or involving the law firm of Phelan, Hallinan & Schmieg.

    4. Respectfully request a copy of all responses contemplated by the four (4) bullet points received pursuant to your 20 July, 2011 letter to FDIC Acting Comptroller Walsh, Chairman Bernanke and Acting Chairman Gruenberg as posted above;

  44. This post is interesting. I’m in a non-judicial state if that means anything. The Apppintment of Successor Trustee assignment raises a lot of questions for me. I may be was off base, so someone please comment. It says: XXXX and CCCC are the grantors, Original Title is the trustee and MERS soley as nominee for lenders and successors and assigns is the beneficiary under that certain deed of trusted dated XXX under (gives county and auditors #) The present beneficiary under said deed of trust appoints New Trustee, address, as successor trustee under the DOT with all powers of the original trustee. The undersigned present beneficiary warrants and represents that, as of the date this Appt of Succ Trustee has been executed and acknowledged, it is the owner and holder of the obligation secured by the subject DOT and is not holding the same as security for a different obligation. In the signature area it states Wells Fargo Bank, NA, JS, Attorney-in-Fact by Power of Attorney recorded date, auditors file #. I did check the POA and JS is listed. However, JS is an employee of the new trustee and never was an employee of the original trustee-found that out by research and a few calls. So the new trustee assigned it to themselves it what I take it as. Now we come to the dates. There was no date stamped on nor was a date written that JS signed this assignment. There is the date the notary signed which is 12/17/08. So I know the date the notary signed but not JS.

    Also in question is the Assignment of DOT. This states the undersigned as Beneficiary grants, conveys assigns to WF Bank, NA gives address, all Beneficial interest in that certain deed of trust dated XX, executed by XXXXX and CCCC, Grantors to Original Title Co, Trustee and recorded on XXX, under auditors etc., then gives land details. Signature area: MERS, By: VM, Title: VP, dated 12/19/08. and notarized the name date. VM is an employee of the new trustee. Notice the date of the Assignment of DOT is dated 2 days after the notary notarized the Appt of Successor Trustee.

    My DOT in bold print states MERS is a seperate corp. that is acting solely as a nominee for Lenders and Lenders successors and assigns. (In bold print goes on to say) MERS is the beneficiary under this Security Instrument. I thought MERS specifically said they do not have any beneficiary interest in the loans. So am I totally off base here in questioning these assignments? Any opinions welcome.

  45. […] Visit site: Cal. BKR: No Trust Identified, No Relief From Stay […]

  46. Yes, great job, Dan! And hello, Gwen, long-time no see. Did you pass your bar exam? Hope so! And hello to Carie too, still fighting & feisty, I see. I’m in a good mood, what the heck I’ll even say hi to TN too.

  47. tn—in layman terms what do you mean by that?

  48. wow – this one gets very close to Rooker Feldman

  49. good post, but you are an expert and know what you are talking about. Not everyone can do what you do and do well I might add. That is the problem with pro se. You don’t know what you are doing and get a bad decision it affects others cases and the banks will go after you and use that case. I saw that in three cases on the eastern side of mo–its a killer. Good job Dan

  50. AWESOME!

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