Moving the Goal Posts Again
SELLING LIEN INSTEAD OF PROPERTY AT TRUSTEE SALE
When Will Judges Get It? There is NO Mortgage Lien
EDITOR’S ANALYSIS: A new instrument is surfacing masquerading as a Notice of Sale. This is going to be interesting. If you didn’t read it, as most of these were probably not read since they first surfaced earlier this year, you would think it said the same thing as any other Notice of Sale. But it doesn’t say the same thing and doesn’t conform to the statutory requirements and can’t be true since the trustee would not be the party who could sell the lien unless they owned it.
Apparently the Banks and servicers decided a few months ago that they really don’t have a valid lien on anyone’s property — like I have been saying for 6 years.
At the “origination” of the loan, the renting of a third party’s name to act as lender made that party a pretender lender and not a creditor. Thus the mortgage secured a note to a pretender lender and not the creditor. Hence the the mortgage is naked in the wind, and yes there is case law on that all over the country. Keep in mind as well that the terms offered to the REAL creditor/LENDERs (investor pension funds etc) are far different than the terms of repayment signed by the borrower to the now non-existent pretender lender.
So the banks and servicers came up with a new bogus document that is no better than the forged, fabricated, bogus transfer documents designed to create the illusion of sale of the loan into the secondary market and the ensuing “Securitization” of that loan — all facts recited but which never occurred. Paperwork was used in lieu of actual transactions.
The new ones either expressly disclaim any warranty of title at the auction or expressly disclaim transfer of the property at all, claiming to sell the lien.
Now THIS is an auction of the lien. To say it is peculiar is an understatement. NOS selling just the LIEN not the Property
Here are my thoughts:
1. Does the trustee own the lien? Are they manufacturing yet another non-existent assignment. The trustee obviously did not buy the lien, nor would they allege they did. And discovery would show a lack of consideration and no assignment, endorsement or allonge.
2. Did the owner also get a notice of sale of the property? If so, the NOS for the lien mucks title even more than before.
3. What exactly IS this document? It appears to be in the nature of a quitclaim of the lien and expressly excludes the property. Is this an opportunity to buy the lien at cut rates with essentially a giant principal reduction. The Buyer is essentially buying a lawsuit. Where is the “lender”? Where is the “beneficiary?” What is going on here?
4. If the buyer is someone other than the borrower, are they going to set this up as a third party sale to a bona fide third party without notice?
5. If the buyer now attempts to foreclose, what are the rights, who is the trustee or substitute trustee, and what will the buyer be getting.
6. Does the transfer of this lien, even if valid, convert the deed of trust into a mortgage?
7. Is the sale of the lien a breach of the deed of trust?
8. The express disclaimer shows that not only is the buyer not buying the property, but they have no assurance that they can ever get it.
9. The express statement that the buyer might still be required to pay off senior liens indicates that this might be an attempt by a pretender lender to position itself as the holder of a second mortgage or second priority AFTER the primary deed of trust.
10. The express statement that the buyer is encouraged to investigate the existence and status of other liens before bidding is an express abdication of the responsibility of the trustee to perform that due diligence.
11. Keep in mind that Recontrust is wholly owned and controlled by BofA. As such it carries with it the taint of not being an objective disinterested third party without any stake in the property.
12. Also keep in mind the growing interest of cities and counties in exercising the power of eminent domain. This might be an attempt to rig the bidding such that a “market” exists (which is presently not the case) for these defective liens and using those market prices to force the city or county into paying more for the lien that it is actually worth.
13. Attendance by the owner is essential here and the objection should be lodged with the trustee stating that the owner Trustor never agreed to let the trustee sell the lien, and that the NOS fails to state the authority upon which it is selling the lien. If the lien is to be sold, the ONLY party that could actually sell the lien for VALUE is the party to whom the debt is owed, with a full accounting from the Master Servicer as to all money received and disbursed, and the current status of the account. What if the the loan has been paid off already?
SOMETHING IS ROTTEN IN DENMARK HERE. COMMENTS INVITED.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: Notice of Sale, sale of lien, trustee, trustee sale without warranty of title |
HI, It is July 15, 2019 and this thread is an issue for me. Has anyone learned how to due about the issue of the selling of a lien only in the NTS and then producing a TDUS? Fraudulent transfer? conversion?
I am in california and working on my second amended complaint. Seems the laws are stacked against us!
I have been fighting for 10 years in and out of BK. Got barred from filing till end of this month so they snuck in and sold in january. I filed quiet title but can’t maintain the action due to tender and other issues.
I am getting tired of all the fighting but can’t let them win unless there is no other option. Still have appeal in bk court over RFS motion by us bank as ttee of asset backed blah blah. But i found us bank own info that clearly states they can not sue so challenging standing in the appeal. 2 years later and no ruling so they filed to dismiss appeal as moot. I hammered back stating that if judge does not rule on at least that one issue then they will keep going after people when their own policies state that they can not. Have doc in pdf if anyone would like to see it. email to 123GetToIt@gmail.com and ask for us bank doc in subject.
The trustee’s deed says that the real property was sold, but the NoS says only a lien.
In a case that I know of personally, the attorney for the purported purchasing beneficiary trustee lying that they purchased the property, and the judge is allowing it.
The attorney also, in request for admissions that the purported plaintiff is supposed to answer UNDER PENALTY OF PERJURY, is objecting as “irrelevant” the notice of sale.
RE: The NTS selling the lien only. It appears to be a way for the lien to actually be placed in the trust. In 2011 the beneficial interest in my friend’s property was assigned to BNY Mellon as trustee for a trust that closed 4 years earlier. At the end of his chapter 7 bankruptcy the court gave BNY Mellon the right to foreclose because his attorney had filed no opposition. BNY Mellon’s attorney had provided the BKCPY court an allonge with endorsements from Aegis to Coutrywide Bank to Countrywide Home Loans to blank. I believe that should have been to CWALT as the depositor. There was no endorsement to BNY Mellon as trustee of the trust or to the trust. So as far as I understand, the note never went to the trust. (We don’t see endorsements or allonges in Southern California as everyone gets a Deed of Trust.) The NTS had the new language about buying only the lien. However the Trustee’s Deed Upon Sale – the sale was back to the “beneficiary (BNY Mellon as trustee for the trust), the TDUS says it sold the property. I think this new NTS is a way for the bank to pass the lien into the trust where it should have been all along, where the Assignment said it was. BNY Mellon has just filed an UD action.
@joann – I think a deed made without covenant or warranty is legally a quit claim deed. Maybe not, but it’s not a warranty deed or special warranty deed. There are only so many kinds of deeds (five, I think). By the language, yours appears to be a qc deed because it says it only assigns whatever the trustee holds, like he doesn’t know and of course with no assurance. Blank that. He has an obligation to know. But see types of deeds generally. But the zillion dollar question is: what does he hold in regard to that statement? If he has not foreclosed, he only holds the interest granted in the dot, which is mol half the title to the real property and that is held in trust for the ben until there is proper foreclosure, because the homeowner has the other “half” and retains it until it is literally “foreclosed” by the trustee’s sale. The trustee may not grant half a title. He must foreclose and grant all title: quiet title. That is his power and his mandate. The dot trustee may not sell or assign his rights and duty nor the interest he holds in trust for the beneficiary, so what makes a trustee think default has changed his rights and duties, i.e., any of this? I dont know what the h a trustee thinks the answer is, but the answer is “nothing”. I’ll tell you one way to look at selling a lien by the trustee: he is cutting out the ben and attempting to make the “lien” purchaser the UNstinkingAuthorized trustee, to allow the purchaser to stand in his shoes, with the right to quiet the homeowner’s title. Does the trickery never, ever end? Is this candid camera? Sailor words.
I would be interested in knowing how a trustee’s deed has read
historically if anyone knows.
What is your deed called? “Trustee’s Deed”? “I’m Making You as Lien-Purchaser the New Trustee Deed”? “I Grant You My Right to Foreclose and Quiet Title Deed”? More sailor words.
Jordana made me think of something: The dot trustees trying to sell the lien only has something to do with the groups of investors who are trying to pick up blocks of homes cheap. So says my gut. Shift the liability for acting for a party who has no right to tell the trustee to
foreclose. But it’s to no avail. It wouldn’t do that and he can’t do it, anyway. Had to come back aways to find this post.
Okay, Mr. G, here’s my two cents:
Dot trustees have no power or authority outside that specifically granted in the dot. They are not authorized, as we know, to sell anything but the home. Here’s why: He is authorized to foreclose (for the proper party, that is, and for cause). The trustee holds a form of title to the real estate (for the ben). His job is to ‘relieve’ the homeowner of the homeowner’s other form of title and unite the two in one party, the successful bidder at the sale, by way of his trustee’s deed. That’s what foreclosure is. The homeowner’s interest is “foreclosed”. That’s what that word means. It is in essence a quiet title action, with the homeowner being the loser. If the trustee attempts to sell the interest he holds in trust for the true beneficiary, he has not foreclosed and that is all he may do. Title is not quieted.
@guest – bet that’s going to be good reading – thanks
Top 10 Lawsuits
I mpacting the Title Industry http://www.alta.org/publications/titlenews/11/Volume90_Issue07.pdf
Is it that MERS no longer wants the exposure of assignments done in its name, plus they know a non-owning note possessor has no right to an assignment of the collateral? So now they will try to get the deeds of trust this way, instead of by assignment? (“The assignment’s no good, but, hey, we bought the lien from the trustee”) Bet that doesn’t stop them from still trying to use credit bids, which right they must fantasize stems from (alleged) right to enforce a bearer note.
A dime to a donut they know their (alleged) possession does not entitle them to an assgt of the collateral instrument.
Z, now I get it. They are not claiming to sell the homeowner’s interest; only the interest represented by the deed of trust (re: that language you posted), but it may also be, and i think it is, a lame disclaimer regarding even the dot interest. They can’t do this and soon I’ll be able to say exactly why. I think. What does anyone else think of this lien-selling? * Imo, they’re asking for it. This attempted cure is worse than the illness, the one they created.
Anyone recall what was it OR? WA? just came out with about foreclosure, or the case? I’d like to read it again. Anyone?
*but I just read a TNOS over at mccandless and it had conflicting information, referring to the property, but then saying it’s only the lien
being sold.
I want to put this out there again: I just read (linked the material: Note discussion) that if a person acting for the noteowner endorses a note without revelation on the note, like
“ABC Bankster by XYZ Collusion, Inc., its agent
by Sam McGillacuddy), its Vice President (the alleged agent = XYZ),
XYZ is now liable on the note to the noteowner. This doesn’t mean XYZ IS ABC’s agent, of course, and if not, that’s fraud as in any unauthorized endorsement of a note.
To me, this means EVERY time a bankster endorsed a note ostensibly for another (with no revelation of its -purported- agency, it has become liable on the note to its owner. Now, we have to figure out what we can do with this, the liabilty created by these acts (if they’re not out and out fraudulent for lack of authority). Anyone?
I will say that I don’t think this self-imposed liability gives the endorsor any rights against the maker, the borrower. First of all, the liability is an assumed risk by the act of leaving off its agency-right to endorse. Probably more reasons.
Very Nice Homework John! 🙂
MERS might be, and right now fwiw I’d say it is, a “third party beneficiary”.
“In order for a third party beneficiary to have any rights under the contract, he must be an intended beneficiary, as opposed to an incidental beneficiary. The burden is on the third party to plead and prove that he was indeed an intended beneficiary.”
Well, MERS is not an intended beneficiary, by its own admission. The singular reference in the dot to MERS regarding rights of any kind says MERS may foreclose if by “law or custom”, a rather large and ignored caveat. The law says if one is not an intended beneficiary, one has no rights under the contract, so that rules out ” by law”. The other option is ‘by custom’, which imo is dispositively legal fiction.
“Any rights”, includes the right to execute an assignment of the beneficial interest, even if MERS actually executed assignments, which it doesn’t.
Imo, dot trustees using any disclaimer language are trying to make themselves “nominee parties” in the event of dispute, for one thing.
“Nominal Party
A nominal defendant is also sometimes called a nominal party. Similar to the definition of nominal defendant, a nominal party “refers to the party to the lawsuit who is connected to the case, without any interest or prejudice, so that the court can resolve certain issues or have all the evidence proved with his/her help to give a proper judgment,” according to Legal-Explanations.com. As it is with a nominal defendant, “this nominal party will not be affected by the result of the case and is not at fault or considered for any benefits out of it,” according to Legal-Explanations.com.”
But the dot trustee does have an interest (and a duty), and that is to protect the interests of the other two parties to the dot. Dot trustees historically never contemplated today’s events. (Didn’t have to til MERS enabled all this baloney.) Well, things have changed. If they can’t take the heat, they should stay the hell out of the kitchen and refer the matter to the courts. Imo, these disclaimers are admissions that they don’t know who is on first. They want the money involved but none of the duty. If these dot trustees did in fact refer the matter to the courts, they probably would be held to be nominal parties.
Look for mirror states in your state. From (NV) Torrealba v. Kesmetis, March 3, 2008:
“NRS 111.450(1) directs that powers of attorney be acknowledged and recorded in the same manner as other instruments that convey or affect real property.”
” For the recordation to serve as notice to third parties, NRS 111.315 mandates that the instruments be recorded in the county in which the property is situated.”
I think we have to make a case for Notice – that without it we are not bound. But I’ve posted this before without apparent interest from anyone…….
I was just re-reading the material on negotiable instruments I linked.
Very interestingly, it says if an agent of a principal endorses a note but does not identify that it does so as agent, that party becomes liable on the note. Boy, throw that one at them!
@joann – every state has an adoptation of the statute of frauds. Here is CA Civil Code 1624, which imo is being ignored, just as some other states are ignoring their own statue of frauds:
“a)The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent:
(1)An agreement that by its terms is not to be performed within a year from the making thereof.
(2)A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794.
(3)An agreement for the leasing for a longer period than one year, or for the sale of real property,
or of an interest therein;
such an agreement, if made by an agent of the party sought to be charged, is invalid,
unless the authority of the agent is in writing, subscribed by the party sought to be charged………………”
An assgt is a conveyance of an interest in real property.
As to recordation not being required, enforcement demands Notice imo because UNrecorded assgts do not bind anyone except the parties thereto. Put another way, an unrecorded assgt is valid as to the parties thereto, but to enforce requires Notice.
@joann – 1) how did chase get in the act to execute an assgt in the first place? 2 the reliance in the NOD is singularly on the words “its successors and or assigns” and always has been, even when it was “MERS” after us. 3) the language in the assgt, the inclusion of all those entities, imo is meant to obviate the need for assgts between those parties. It’s meant as a catch-all, imo.
That language in the NOTS is so abominable, I am again tempted to ask if it’s a joke. I am struggling with this issue, both as to explanation of why it is a joke and whether or not I want to be one more sounding board for the banksters by conveying even my lay impressions here. But it does need to be shut down.
Btw, If Chase DOES have authority to transfer the note in this fashion, it is clearly not being done pursuant to Article III, imo. If chase, like MERS, has no authority, the recordation violates state statues and is a felony. When called on this attempt at conveying the note in the assgt, chase, like phsomething in a NV case before it, will likely claim
the language is superfluous, relying on poss of a bearer note or else it will see to it there’s an end on the note, date unknown. I sitll maintain that one in possession of a bearer note who is not its owner has an unsecured note, and is without right to an assgt of its collateral. Why is a warehouse bank in possession of a bearer note (if it’s a bearer note at that point)? It is NOT for the purpose of enforcement and it is not entitled to assgt of the collateral instrument.
Let’s get real here. The blank endorsement was intended to provide enforcement by the guy of the moment. There was never any delivery of these notes along the way.
Here is a discussion on negotiable instruments I found informative. Bear in mind banksters, and I believe “MERS”, claimed reliance on Art 9, switched to 3, and may well switch back to 9 or (8?) or who knows what. When confronted, one should ask imo for a more definitive statement on this sucker – Article 3 vrs 9 or whatever (as well as if claiming under holder or hdc).
http://www.scribd.com/doc/101606849/Negotiable-Instruments-Liabillity-And-Defenses
Speaking of defenses, in that material linked to I think it was rule 26, there is a list of affirmative defenses.
Guest and John
Thanks.
The language that blows me away as Neil highlights above is on the Notice of Trustee’s Sale:
“Notice to Potential Bidders. If you are considering bidding on this property lien you should understand that there are risks involved in bidding at a trustee auction. YOU WILL BE BIDDING ON A LIEN NOT ON THE PROPERTY ITSELF. PLACING THE HIGHEST BID AT A TRUSTEE AUCTION DOES NOT AUTOMATICIALLY ENTITLE TO YOU FREE AND CLEAR OWNERSHIP OF THE PROPERTY. You should also be aware that the lien being auction off may be a junior lien. If you are the highest bidder at the auction you are or may be responsible for paying off all liens senior to the lien being auctioned off, before you can receive clear title to the property. You are encouraged to investigate the existence, priority, and size of outstanding liens that may exist on this property by contacting the county recorder’s office or a title insurance company, either of which may charge you a fee for this information. If you consult either of these resources, you should be aware that the same lender may hold more than one mortgage or deed of trust on the property.” [emphasis added]
Usually in CA the problem is there is a substitute trustee and no assignment and the trustee bank for the trust forecloses. And then CA courts say tough luck – assignments don’t have to be recorded in CA.
In this case there is an assignment to the trust but no substitute trustee. Original trustee forecloses and names original beneficiary on all docs – NOD – NOTS. Trustee’s Deed names no one as lender/beneficiary….. Here is the language in the Assignment of Deed of Trust (completely ignored by the trustee and completely ignored on all docs and of course no notice of change in beneficiary as per 15 U.S.C. § 1641(g) Liability of Assignees ):
JPMorgan Chase Bank NA….. “For Value Received “hereby grants, assigns and transfers to U.S. Bank National Association as successor in interest to Bank of America, National Association as successor by merger to LaSalle Bank NA as trustee for the WaMu Mortgage Pass-Through Certificates Series……Trust all beneficial interest under that certain Deed of Trust …….“Together with the note or notes therein described and secured thereby, the money due and to become due thereon, with interest, and all rights accrued or to accrue under said Deed of Trust including the right to have reconveyed, in whole or in part, the real property described therein.”
Seems to me by the recorded docs (and we know about those but for this purpose just on the face of the docs) there is a lien outstanding to US Bank NA as trustee for….Trust. They have not yet declared the default or the amount of the default and they are not the foreclosing entity. They are nowhere to be found on the NOD, NOTS and Trustee’s Deed. All of the above are WAMU/Chase/California Reconveyance Co.
So how does that lein get satisfied? Do you think the third party buyers (who paid almost current retail) would like to pay it (as per the NOTS ie outstanding liens?) They should demand the sale be reversed instead of wasting their money in court and time throwing me out. US Bank could be next at bat but I will be ready for that….I think….
I have a friend who is a flipper and she says trustees reverse sales all the time with no explanation and return the funds plus interest to the buyers… it is what ought to happen here.
Help Mr. Wizard!
joann – in my LAY opinion, your trustee’s deed has caveats. Don’t know if they’re unusual because haven’t seen other trustee’s deeds. Have to ponder this because trustee might be trying to wiggle out of some liability by stating this:
“…after fulfillment of the conditions specified in said Deed of Trust authorizing this conveyance.”
It’s so ambiguous, tho, whatever might be intended is probably not good for anything to the trustee. He seems to be trying to say he’s doing his job ((executing his TD) on his assumption things are kosher. And if so, to that i say, how dare he? It’s his stinking mandate to know things are kosher.
He has no right to caveats and not knowing that those conditions
are ‘fulfilled’, dumb word, dumb language, just plain lame, violates his duty if not fiduciary to the other two parties to the dot. Fulflllment of what, by whom? Where do they get these guys? From the steno pool?
@Joann: California is prime fraud. Nobody gives crap about legalities because everyone in judicial system is bribed somehow, state & Fed. But, if you are not yet ordered to answer UD yet, once you are ordered then instead of answering you can remove case to Federal court without answering UD with a notice of removal filing in Federal court, with a copy filed in UD court, but it has to be done correctly for fed-court to keep case and not kick it back to UD court. Doing this requires a fed-practice lawyer. Best argument is probably diversity jurisdiction if your plaintiff is from out state.
Clarification – my previous post – said my NOTS was identical to the one provided in Neil’s link. Not identical but language similar and that thing about purchasing a lien is identical. His example is Recontrust as trustee – mine is California Reconveyance Company – so seems like they are all using a new template (and they ought to be put out of commission for this)….. Mine specifically names the original beneficiary also which the example does not appear to do and you all can guess who that is. There are a few other differences. Are they hitting themselves in the face with the rake here or raking us over the coals again as usual? How can we use this now at various stages of foreclosure????
Charles Cox, on July 31, 2012 at 2:39 pm said:
“I think this is a BIG problem, particularly here in California, which we have one client right now like this.
This is a fraudulent Notice of Trustee’s Sale recording of which is a felony (if only they would enforce it)
The “power of sale” is to sell the property, not the lien. This is in my opinion, ultra vires.
Read your DOTs and the NOTS…
The Trustee’s Deed should be interesting too…”
Thank you for posting this and I am so grateful to Neil for highlighting this development. Neil’s post is about to drop off the front page and I so hope you and others will continue to comment on this.
Neil’s post says “ SOMETHING IS ROTTEN IN DENMARK HERE. COMMENTS INVITED”.
Something is certainly rotten in the state of CA too!
I have one of these NOTS identical to the one that Neil links to – I am currently fighting unlawful detainer by third party real estate syndicate. Some would say impossible fight but until the judge says so I will proceed against all odds. My first step out the door did buy time. Sale is now over two months ago. Another proper “response” will buy time again because same issues (that the judge noticed) are not corrected by plaintiff in amendment. I have not been directed to “answer” yet.
“The Trustee’s Deed should be interesting too…”
It says:
“….the trustee “does hereby grant and convey, but without covenant or warranty, express or implied, to….all of its right, title and interest in and to that certain property situated in….”
“This conveyance is made pursuant to the powers conferred upon Trustee by that certain Deed of Trust dated…..and after fulfillment of the conditions specified in said Deed of Trust authorizing this conveyance.”
In this case there was a late date assignment to a trust (by the servicer who has never purchased anything for value and who has never had a beneficial interest and assignment is made by employee of trustee who signs as vp of “lender”/servicer) which is in all ways an impossible and fraudulent transaction in itself …..however on the face of recorded docs the trustee bank for the trust clearly does not foreclose and there is no substitution of trustee. The original trustee on DOT forecloses and names original beneficiary on all docs NOD, NOTS. The Trustee’s Deed does not name any entity in any capacity at all.
I so wish to understand the implications of this development in recorded documents (which can be judicially noticed and when face of complaint Trustee’s Deed refers to these docs and duly perfected title of BFP is at issue…..ect.)
A question just off the top of my head regarding this…..Sale of a lien (flabbergasted by this and what they are getting away with under the radar and it screws the buyers too) – in addition to all the points Neil brought up – doesn’t this automatically change non-judicial to judicial by definition and produce the note comes back into play??? Not that you could ever do this in unlawful detainer court (never say never) but the judge did not shut me up on title yet (there is a limited way to bring this up properly in that venue and what can be judicially noticed is appropriate I believe and trustee’s deed refers back to NOD, DOT, and “Election To Sell” ie NOTS?? ).
Anyway I hope Charles will comment futher on this and that Neil will stay on it and that anyone else so motivated will comment. I beleive any sane person who looks at this especially in a non-judicial state (and legislators and judges ought to be doing it)…….the engine should be stopped in its tracks. If they could care less about the homeowners maybe they care about the poor innocent third party buyers….
@JG: no problem for grantee of a QCD-its a donation. If doubtful make it to your pet’s name! + if robo-signer files suit you have chance to shake’m down…
Maybe you could send in 20.00 and get a Wm Hultman appt as a MERS’ sec / asst v.p. Then, you can sign a reconveyance of your dot! Would you be any less a MERS’ officer or have any less knowledge about the reconveyance than member employees or nonmember jerkies currently executing docs – docs with the same gravity? Before you dismiss this question out of hand, you mind want to give it a second thought….
Guest and JG–I’m mulling over the qcd. Probably won’t do it–don’t know who’d want to get caught up in this. Still, I think it’s a strategy that might work for some people. Or at least gum up the works, as long as one conveys “such title” as one is vested with!
Martha,
Back atcha. I think I live near you now. We should have coffee sometime. Email me at leftbehindchild@gmail.com And usedkarguy,, thanks and same to you!
@guest – okay, seems like that could put a quirk in their deal, but what it may do also is compel the participation of the qcd grantee in any litigation. You know that such a qcd could itself trigger an acceleration, right? Possibly no one would care much about the latter since the loan is already allegedly in default, but still……now the bankster may have 2 alleged causes of action: due on sale (and I use the word loosely since it’s not a sale) and default. I think courts would take a dim view of such a qcd. I’m still in favor of recording a Notice of beefs or like that and any day now, I’ll find the ones I have around here somewhere.
Zurenarrh…you’re some sort of hero to me…
can we be friends? If not in this life, but the next?
@JG: Quit Claim Deed has to be to someone else, not himself…If sometime later problems are resolved the other person can quit claim it back… The significance of recording it is that it quickly clouds the title chain and stalls robo-signers’ chain of routine events & buys you time and more…
The entity in this sorry charade that’s definitely renting it’s name, for $20.00, is M E R S. For 20.00, someone may rent its name to (attempt to) create interests in our homes for itself or others. And MERS had no business being named nominal beneficiary if for no other reason than it didn’t have nor did it plan by all appearances to get staff to quitclaim its nominal status or to do anything else, either.
Large companies, like WF, BofA, US Bank, had in-house loan originating and also had contracts with brokers and correspondents. The large companies underwrote those loans for at least the brokers and some correspondents, which to me = liability for sins they routinely say anything to avoid, plus the new sin of omission by not informing the court they underwrote that loan with the TILA / RESPA violation. Whether or not that they underwrote and approved a violative loan leaves them liable is im lay opinion a yes, but it’s a question that will never be addressed if no one knows it so doesn’t scour rules and / or it is never brought before a court. How can the borrower not have a need to know clearance (if the answer is yes on liability)? It might not ‘just’ be assignee liability since the large co. underwrote and approved the loan at issue.
These large companies would be the A’s in the warehouse deal. When the large company originated the loan itself, take out B.
@guest – you lost me. What is the point of a homeowner recording a qcd? And to whom – himself? He already has title. Oh! is this to suggest that he is claiming mol all title, including the title allegedly held by a dot trustee in the event no dot trustee (or anyone) actually has a legit claim against title?
If so, yes, interesting and might be a nice rebuttal to that wretched
(and imo legally skewed) dot trustee disclaimer.
This is not directed at anyone in particular. The money came from a warehouse bank so the payee rented his name to the real lender? And whom, pray tell, would one say that is? A had a contract with B which said that B would originate and sell loans to A. A would provide the loan program guidelines to B as well as underwrite B’s loans (and I hsve argued liability on this one, the underwriting) A would provide the funds at closing by way of its warehouse line. But, prior to use of those funds, B had to contractually buy that money from B first at a ‘strike price’. If B committed to those funds contractually and did not complete the purchase of the money, B incurred a penalty, called a non-delivery fee. ‘A’ itself had a contract with the warehouse bank / line for drawing on that line. Once drawn on, those funds belong to ‘A’. A warehouse bank/line is one which provides temporary loans, generally tied to rates akin to overnight lending. The mechanics of the use(s) of these monies is a far cry from B renting its name as payee to A. And it does not make the warehouse bank the lender as the warehouse bank may have a contractual collateral interest in the note, but it has no right to payment on the note itself. The warehouse bank may be given temporary possession of the note, but the note is not given to the warehouse lender with the intent of giving the warehouse lender the right to enforce the note. It is given as collateral for the warehouse funds pending retirement or payoff of the temporary loan. There is also no corrolation between the rate paid to the warehouse line/bank and the note rate. At the moment B is named as the lender on the note, under the UCC, B is the lender. But, B has contractually agreed to transfer the note to A or its designee, in fact, has already sold that right. ways to look at this, but they have to be well-founded. THIS might be subject to attack because by contract, B has no expectation of payment; he has already sold that interest. And there may be other ways to look at this, but they have to be well- founded.
Imo, following this particular money trail (the traditional warehouse line) will not get one anywhere and it doesn’t make the warehouse bank the lender. Warehouse banks have been providing overnight funds for forever. But, these were the mechanics in place before sec’n became rampant. They may have changed. I don’t know.
What might change who is the lender is if the secn investors monies were found to be used, instead of funds from a warehouse line/bank, or other source, provided contractually with ‘stranger’ funds. If the investor funds were the funds used to fund the loans and IF also not used contractually as overnight funds, (and that seems impossible) this could have, I suppose, its own complications in NG’s, (but I am NOTsaying this is his thinking) but not my, area. I don’t know and couldn’t possibly articulate any of the “so what’s” of using the investor funds to fund these loans, although at a glance, for one thing, they weren’t (supposedly) given for funding. But, IF the investor funds were used, and I don’t know a thing about that, and IF the use of those funds created a right to payment under the note (unlike the overnight mol use of warehouse lines), it is not the same rate or terms already sold to the investors by way of the agreement in place. That’s as far as I could go.
But, back to the warehouse lender, I don’t believe the mechanics described above are subject to a sustainable attack and these mechanics do not make the warehouse bank the lender nor does it lead to a conclusion that the payee’s name was rented. And as to the renting of B’s name by anyone, I just don’t think the contracts between B and anyone can be ignored. They may in fact establish X or Y, but they can’t be ignored.
@Z: good to hear you’re still in the fight. Keep it up.
Guest–veeerrry interesting….I am going to look into that.
@ Z & JG: re: “Recontrust Company, N.A. will convey only such title as vested in it as Substitute Trustee.” This is playing it safe & is same as you recording a QUIT CLAIM DEED (QCD) because a QCD transfers only whatever rights you may have in a property. It is totally legal to file this. If you have no rights to it then it transfers nothing. So, it is best that everyone who suspects to be a foreclosure target record a QCD to put his/her claim in the record and in the title chain so robo-signers have to take further measures to steal property…+++
“At the “origination” of the loan, the renting of a third party’s name to act as lender made that party a pretender lender and not a creditor. Thus the mortgage secured a note to a pretender lender and not the creditor. Hence the the mortgage is naked in the wind, and yes there is case law on that all over the country.”
I have established the pretender lender and identified the true lender (warehouse bank) the evidence is clear in title company documents, and the pretender vice president admitted the facts in a deposition I conducted earlier this year. The pretender’s name was “rented” by a division of Citi. With this evidence established, where is the case law referred to above? This is California Bk.
z – bravo for you. I’d like to be a fly on the wall in any next case of yours Like to see that, I would! I admire your conviction and staying the course.
johngault,
As far as I’m concerned, Recontrust can disclaim all they want. Recontrust holds no title. And Recontrust owes me fiduciary duty per case law in my state (probably every state) since I am the trustor. They owe me as much fiduciary duty as they owe the supposed “lender” or creditor or whatever they want to call themselves. I’m suing them regardless if they try to pull what they pulled in this notice of sale. And this time, I have experience in prosecuting a federal case. I know what I’m doing this time–I have argued a motion in federal court. I don’t have to learn the rules of civil procedure from scratch. I know them now. And they know that I know what I’m doing. They know that the only way they pulled out a win was because of a friendly (to be kind) judge and forged documents. That’s it. I hope they are stupid enough to try to schedule an auction–I won’t take it lying down.
Whether or not that language that I see as a disclaimer in the NOD 1) is just that and 2) results in Duty of Inquiry are questions for a r.e. attorney, but it’s gonna be a ride because we’re talking about a NOD which flows from a dot and who can say right away that that language is kosher in the first place. It’s one for an attorney also because it might be a trap for the homeowner, at least, if not a buyer : damned if you do (inquire), damned if you don’t. Have to ask an attorney if your ‘savvy’ in recognizing a duty of inquiry so buried, sort of, IF attorney agrees that one exists, could later work against you when and if you give up after your inquiry gives you a response but no real info, or no response. I am NOT trying to complicate anything here. That language just hit me like cold water.
Maybe the trustee didn’t mean to create anyone’s inquiry duty. Maybe it’s just a disclaimer, a cya. (But it’s not in there for NO reason imo). But whether or not he meant to, it may act that way. Attorney! Just what we need…..one more reason to need professional help and now with a question which may be first impression.
z said:
“Recontrust Company, N.A. will convey only such title as vested in it as Substitute Trustee.”
What the heck kind of CYA is that? I’m tempted to ask if you make little joke. Imo, they are trying to hit two birds: 1) IF recon is sub trustee and 2) that’s a disclaimer of what recon as sub trustee might be able to convey, since it can convey no greater interest than it’s accorded. Because a NOD is recorded in public record, it statutorily imparts constructive notice and imo, this is directed at a f/c sale buyer, more so than the homeowner even. Now they want to put the buyer on inquiry notice about those two things?! Like if she did inquire, they’d tell the truth? Does this notice actually make the trustee’s deed operationally, or with that possibility, a quit claim (only?) I dont’ think I’ve ever seen a trustee’s deed to know what one says. But I’m remembering “a contract does not survive a closing”. In other words, if John and Sam agree to “B”, a thing, in a purchase contract, and B is not incorporated in the closing, B is gone, it does not survive. I think an example is that if John agreed in the contract, say, to pay 2 pts at closing, and the closing occurs without John paying 2 pts for Sam,
Sam is now out of luck.
So if I am reading the intent right of that NOD disclaimer, based on the same sort of principle above, would the Noticed disclaimer survive a trustee’s deed which did not contain the disclaimer? I’m thinking not, dunno, hmmm… but maybe the (sub- uh-huh) T’s deed will say that
again and then really what the heck. If it’s not repeated in the deed and If the Notice doesn’t survive the deed, mol, those guys either don’t know it or the (notice of the) disclaimer is aimed at the homeowner, which is just about as weird. I mean, are these alleged sub-t’s running for cover and trying to implement some kind of what I’d call bs cya?
I can only hope they’re reaching and it would not serve any of these purposes. I’ll say this: if I were given such a NOD, I would demand fwi would be worth, which ‘might’ be something, an explanation because I certainly take it as a disclaimer /cya attempt and I would wonder /worry about the notice inquiry duty of mine, if any. But I’m not an attorney; that would be the act of a layperson. But this layperson would damm well do it. (It’s more complicated with z’s case which is litigated. I can’t know exactly what the court found or the timing of the NOD to the litigation). Oh, those guys!
Martha Raysik and all, keep in mind that it is an absolute legal right to video any police/sheriff when they are conducting official duty, as long as you’re not violating any section of any law, ordinance, code or criminal article.
DO NOT let them get away with intimidation or threats to your civil liberties. Print the DOJ letter stating the same and have it with you, then let them arrest you and take them to court for everything that’s not nailed down in the damages department. Screw these power-hungry bastards, preferably before they let loose the drones overhead!
You can copy the DOJ letter here:
http://www.pixiq.com/article/department-of-justice-slaps-baltimore-pd
yesterday, the trustee sale was supposedly to sell just the lien, and i was there, and they threatened to arrest me for videoing ,except i was not, and i heard over three SALES, that they said just the INTEREST was being sold, then after the bidder won, they said, THe Property was sold, which was not what the trustee said in the first place, and they are up to something very dirty,
the lien is invalid, due to the Alleged loan was procurred under fraud, of knowing that the gds were being forged.
what exactly is THE LIEN? is it the NOTE? is it the DOT? what is it exactly they are puporting to auction?
I think this is a BIG problem, particularly here in California, which we have one client right now like this.
This is a fraudulent Notice of Trustee’s Sale recording of which is a felony (if only they would enforce it)
The “power of sale” is to sell the property, not the lien. This is in my opinion, ultra vires.
Read your DOTs and the NOTS…
The Trustee’s Deed should be interesting too…
More forgery/fraud goodness from Gunderson’s memo (also p. 11 of the PDF, last part of #16 appears on p. 12):
“14. The expert’s opinion shows that the indorsements were either photocopied or placed on the originals by some other means. The indorsements are not true ‘Wet Ink’ indorsements.
15, While the Defendants’ expert opines the indorsements are not ‘Wet Ink,’ the indorser herself testified that notes are always indorsed with ‘Wet Ink.’
16, The indorsements appear to be ‘Xerox Forgeries,’ placed on the Notes in an attempt to retroactively establish that the Plaintiffs had standing at the commencement of these cases. Indeed, as set out above, in all but one case, no indorsement of any type appeared on the various Notes until the later versions of the original complaints were filed.”
The term “Xerox Forgeries” has a footnote, and the footnote states that “‘Xerox Forgery’ is terminology used by expert document examiners when describing the copy of a signature onto an original document.”
I have talked with Gunderson personally, and he GETS IT!
the fuckers will talk out of both sides of their asshole, depending on how each issue benefits them the most…..WE ARE WATCHING FUCKERS !! AND WE ARE READY TO FIGHT YOU !!!
By the way, regarding a Sjolander endorsement: attorney Mark Gunderson in Florida hired a document expert to examine a Sjolander endorsement on a promissory note in a case he’s working on. Guess what the expert found? That the endorsement was NOT placed on said note with a rubber stamp as Ms. Sjolander has testified to in multiple depositions. The expert surmised that the endorsement was placed there digitally.
I have Gunderson’s Memorandum of Law with this info if anyone would find it useful. Email me at leftbehindchild@gmail.com if you’d like a copy. In Gunderson’s memo, he points out that Sjolander said that the endorsements are ALWAYS done with rubber stamps (p. 11 of the PDF memorandum). The expert, Frank Norwitch (his site is questioneddocuments dot com) says this about the endorsements on the notes in Gunderson’s cases:
“The indorsement signatures on the documents…microscopically do not display straie, reverse-side embossing, three-dimensionality, nor a ‘wetting’ of the paper fiber. In view of the above findings, it is the opinion of this examiner that the indorsement signatures are not original ink signatures.” This is also found on p. 11 of the PDF.
So did they only fake Sjolander’s endorsement in this one case? On five different notes? No, of course not. Sjolander testified in the deposition conducted in the case of Kirby v. Bank of America that she never endorsed her name on any notes herself, that she wasn’t allowed into the place where notes were supposedly endorsed with rubber stamps WITHOUT AN ESCORT, and that the only time that ever happened was when she conducted audits of Recontrust facilities. Sjolander also testified that she believed that Recontrust employees were allowed to do this because she gave them her “power of attorney” to do this stamping.
I have come to the conclusion, based on the above, that it is highly likely that Sjolander was a dupe, and that when she did audits, her “escort”–undoubtedly a higher-up in the bank–would lead her into a room staffed with people equipped with rubber stamps who appeared to be stamping notes. What Sjolander probably didn’t know is that this was only for appearances and that this stamping only took place when Sjolander was doing audits for the sole purpose of making her believe that the notes were being endorsed by rubber stamps. It was a dog and pony show–then she was trotted out to depositions to testify that this stamping was going on, even though she only ever saw it when she was escorted and doing audits. What she saw was people stamping dummy documents with dummy stamps, and when she was gone, the dummy stampers would go back to their real duties.
I also surmise this based on the deposition testimony of Linda DeMartini in Kemp v. Countrywide. DeMartini said that Countrywide did NOT endorse notes as a matter of course (why would they endorse the notes-after all, they’re not negotiable as Max Gardner points out) and that the only endorsed notes she ever saw at Countrywide were endorsed because litigation called for it.
If you want to look into the Gunderson cases yourself and have access to Florida’s 11th Circuit filings, the case number is 08-80371 (CA 31). The parties: HSBC, et al. v. Rose. The memorandum cited above was filed June 19, 2012.
Here’s something else–in the Notice of Sale for April 12, 2012, BAC said that it was the current beneficiary of the DOT and therefore could make Recontrust the Sub Trustee of my DOT. When the judge filed his order on March 27, 2012 he expressly stated that: 1) Since September 7, 2007, Fannie Mae held the Note via the blank endorsement of Michele Sjolander and 2) the “mortgage follows the note.”
That of course did BAC (BAC Home Loans Servicing, by the way, no longer exists, which happened during the 2.5 years of my lawsuit) no favors because if, as the judge found, that Fannie Mae has held the note for almost 5 years AND the mortgage follows the note, then there is absolutely NO WAY that BAC can be the beneficiary of my DOT. The beneficiary would be Fannie Mae. So if they want to legally take my house, they’re gonna have to do it in the name of Fannie Mae. Oh, they’ll say they don’t have to do it in the name of Fannie Mae, but they do. They do.
Just a heads up to the “winners” of my lawsuit–I am watching your every move. I know what you’re up to, and I can’t wait for you to step on the rake!
Guest,
Thanks for the info. If that’s what they do to me, I will definitely sue them again. Hear that, Recontrust, you fuckers? I was reading over the Recontrust Sub Trustee’s Notice of Sale from April, and the last sentence says: “Recontrust Company, N.A. will convey only such title as vested in it as Substitute Trustee.” Say what? Like I said, BAC “re-appointed” Recontrust as the DOT Trustee back in 09 and filed an instrument in the county records to that effect. I made a mistake below–in the most recent, i.e. April, notice of sale, it wasn’t Recontrust who appointed itself “Sub Trustee” it was BAC! So in 2009, BAC says Recontrust is THE Trustee, and at the tail end of my lawsuit in 2012, BAC says Recontrust is the Sub Trustee. And tries to schedule an auction before the judge has ruled on the case. In fact, dig this: when the judge DID file his ruling in favor of Recontrust et al., it was dated March 22, 2012, which by state law would have been the first day Recontrust would have had to advertise the auction it had scheduled for April 12, 2012! Coincidence? You decide (the answer is no). However, that March 22nd ruling was not filed until a week later, on March 29th.
@ Z: all names you mentioned are robo-signers who just record one page called Trustee Deed Upon Sale, without actually scheduling auction, then give that to their bribed court clerks for writ-of-possession and on to their bribed sheriff for eviction….they’v done that for 5 years…
A couple months ago, I lost my lawsuit against BoA, Recontrust, Fannie Mae, and MERS. Since then, I have been waiting for Recontrust to schedule an auction on my property, but they have not done so. I have noticed that in my county and in all the counties in my state, Recontrust does not have ANY sales scheduled beyond the end of September. I check the Recontrust site every day to see if they have scheduled an auction of my property, and for a few months, there were always new sales regularly scheduled. I have noticed in the last couple weeks that no new sales are being added. Has anyone else noticed this in your county or state? If so, what are your thoughts? Are Fannie/Freddie going to have another moratorium on foreclosures during election season like they did in 08/09 (October/November 08 to March 31, 09)?
I should point out that Recontrust DID attempt to schedule a trustee’s sale back in April–before the conclusion of my lawsuit–but I called them on it and they backed off. Interestingly, Recontrust appointed ITSELF as “Substitute Trustee” of my DOT, despite an instrument being filed in which BAC “re-appointed” Recontrust as the “Trustee” of my DOT. So BAC claims that Recontrust is the “Trustee” while Recontrust itself claims that Recontrust is the “Substitute Trustee.” How can Recontrust possibly be BOTH the Trustee AND the Sub Trustee? They can’t, of course, but when I sue them again, I’m sure the fine judiciary of my state will say that it’s fine.
“It’s not just for Homeowners anymore…..”
Trepp Reports Another All-Time High For CMBS Delinquency Rates
The delinquency rate for commercial real estate loans reached another all-time high in July, according to a report from Trepp. Spiking up another 18 basis points, the CMBS delinquency rate stood at 10.36 percent, up from 10.16 percent in June and 10.04 percent in May. July’s increase is the fifth monthly rise and means the delinquency level is up 97 basis points since February. The analytics company said the continued increase is due to a wave of five-year loans that matured in the first half of 2012 and could not refinance.
This is what the servicers (aka debt collectors/carpetbaggers, pretenders) are studying to make inroads into this new era of fraudulent debt collection. from an e-newsletter:
Quantifying Subprime Consumer Psychology: Implications for Operational Strategy
Millions of U.S. households continue to be challenged by chronic and mounting debt, a problem likely rooted in specific psychological factors. To better understand these factors, we conducted a series of behavioral experiments that quantified differences between prime and subprime consumers (including cognition, preferences, and temperament).
in other words, let’s figure out who we can intimidate and who we can’t.