NEW FORM FOR REQUESTS FOR ADMISSIONS IN CALIFORNIA

In responding to an attorney request, I thought the end product, while not perfect, was worthy of sharing with our readers, especially the lawyers and paralegals. Hat tip to Dan Hanecek who wrote most of it.

In compliance with Code of Civil Procedure Section 2033.220, each response to the requests for admission shall:

(a)                          Admit so much of the matter involved in the requests as is true;

(b)                         Deny so much of the matter involved in the requests as is untrue; and

(c)                          Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information and knowledge.

PLEASE TAKE NOTICE that if the RESPONDING PARTY fails to serve a timely response to these REQUESTS FOR ADMISSIONS, the RESPONDING PARTY thereby waives any objections to these requests, including objections based on privilege or on the protection of work product pursuant to Civ. Code Proc. §2018.

PLEASE TAKE FURTHER NOTICE that in the event the RESPONDING PARTY fails to serve a timely response to these REQUESTS FOR ADMISSIONS, this PROPOUNDING PARTY reserves the right to move the Court for an order deeming all facts set forth herein admitted.

PLEASE TAKE FURTHER NOTICE that if the RESPONDING PARTY fails to admit the truth of any matter when requested to do so under this section, and if the PROPOUNDING PARTY thereafter proves the truth of that matter, the PROPOUNDING PARTY may move the court for an order requiring the RESPONDING PARTY to pay the reasonable expenses incurred in making that proof, including reasonable attorneys fees.

If any of these requests for admissions cannot be fully answered, please answer to the extent possible, specifying the reasons for your inability to answer the remainder, and set forth any information, knowledge or belief you have concerning the unanswered portions.

INSTRUCTIONS & DEFINITIONS

            A.            A CREDITOR MEANS A PARTY WHO IS QUALIFIED UNDER CALIFORNIA LAW TO SUBMIT A CREDIT BID AT A FORECLOSURE AUCTION.

B.            Please furnish all information in your possession and control.  If you cannot answer the requests in full after exercising due diligence to secure the information to do so, state the answer to the extent possible specifying your inability to answer the remainder, and state whatever information or knowledge you have concerning the unanswered portion.

C.            Each request and interrogatory is considered continuing, and if you obtain information which renders its answers or any of them incomplete or inaccurate, you are obligated to serve amended answers on the undersigned.

D.            Insofar as may be applicable, and except as otherwise indicated, the term “DOCUMENT” or “DOCUMENTS” shall refer to any and all writings and recorded materials, of any kind whatsoever, that is or has been in your possession, control or custody or of which you have knowledge, whether originals or copies including, but not limited to contracts, documents, notes, rough drafts, inter-office memoranda, memoranda for the files, letters, research materials, correspondence, logs, diaries, forms, bank statements, tax returns, card files, books of account, journals, ledgers, invoices, blueprints, diagrams, drawings, computer print-outs, discs or tapes, reports, surveys, statistical computations, studies, pictures, maps, graphs, charts, minutes, manuals, pamphlets, or books of any nature or kind whatsoever, and all other materials handwritten, printed, typed mimeographed, photocopied or otherwise reproduced; and slides or motion pictures, television tapes; all tape recordings (whether for computer, audio or visual replay) or other written, printed or recorded matter or tangible things on which words, phrases, symbols or information are affixed.

E.            A request to “IDENTIFY” a document is a request to state (insofar as may be applicable):

1.            The date of such document.

2.            The type of document or written communication it is.

3.            The names and present addresses of the person or persons who prepared such document and of the signers, senders and addresses of each document.

4.            The name of any principal whom or which the signers, senders and preparers of

documents were thereby representing.

5.            The present location of such document.

6.            The name and present address of the person now having custody of the document.

7.            Whether you possess or control the original or a copy of thereof and if so, the location and name of the custodian of such original or copy.

8.            A brief description of the contents of such document.

F.            A request to “DESCRIBE” any oral statement or communication is a request to state:

1.            The name and present address of each individual making such statement or communication.

2.            The name of any principal or employer whom or which such individual was thereby representing and the position in which such individual was then employed or engaged by such principal or employee.

3.            The name and present address of the individual or individuals to whom the oral statement or communication was made, and the name of any principal or employer whom such person or persons were representing at the time of and in connection with such oral statement or communication, as well as the employment position in which they were then employed or engaged.

4.            The names and present addresses of any other individuals present when such oral statement or communication was made or who heard or acknowledged hearing the same.

5.            The place where such oral statement or communication was made.

6.            A brief description of the contents of such oral statement or communication.

G.            A request to “CITE” portions or provisions of any document is a request to state, insofar as applicable with reference to such portion or provision, the title, date, division, page, sheet, charge order number, and such other information as may be necessary to accurately locate the portion or provision referenced.

H.            The term “PERSON” shall include a natural person, partnership, corporation, association, or other group however organized.

I.            Whenever a request is made to “IDENTIFY” a natural person, it shall mean to supply all of the following information:

1.            His/her full name.

2.            His/her employer and position at the time.

3.            The name of any person or entity (natural or artificial) whom she/he is claimed to have represented in connection with the matter to which the interrogatory or request relates.

4.            His/her last known address, telephone number, and employer.

5.            His/her present employer.

J.            A request to “EXPLAIN FULLY” any answer, denial or claim is a request (insofar as may be applicable) to:

1.            State fully and specifically each fact and/or contention in support of your answer, denial or claim; and

2.            For each such fact or contention, to identify each person who has knowledge relative to that fact or contention, each document that tends to support that fact or contention; and each document that tends to dispute that fact or contention.

K.            Unless otherwise specified, the terms “SUBJECT LOAN,” “SUBJECT LOAN TRANSACTION,” or “SUBJECT TRANSACTION” means the transaction(s) described in the complaint(s), including any prior or ongoing contract or communication relating to the transaction and/or account, up to and including the date of your answers to these interrogatories.

L.            Throughout this request, “YOU” or “YOUR” refers to the answering party or parties, and their owners, officers, agents, representatives, independent contractors, employees, attorneys, and/or anyone acting on their behalf.

If any paragraph of this request is believed to be ambiguous or unduly burdensome, please contact the undersigned and an effort will be made to remedy the problem.

REQUESTS FOR ADMISSIONS

  1. ADMIT THAT YOU ARE NOT A CREDITOR.
  2. ADMIT THAT THE LOAN ORIGINATOR NEVER HAD THE SUBJECT LOAN ON ITS BOOKS AND RECORDS AS A LOAN RECEIVABLE.
  3. ADMIT THAT THE LOAN ORIGINATOR WAS PAID BY THIRD PARTIES, NOT DISCLOSED TO THE BORROWER.
  4. ADMIT THAT THE LOAN ORIGINATOR WAS NOT THE SOURCE OF FUNDS FOR ANY FINANCIAL TRANSACTION WITH THE BORROWER.
  5. ADMIT THAT NO ASSIGNMENT OF THE ALLEGED LOAN WAS EVER SUPPORTED BY CONSIDERATION OR VALUE.
  6. ADMIT THAT NO ACCOUNTING OR REPORT HAS EVER BEEN ISSUED (AND DELIVERED TO BORROWER) BY THE SOURCE OF FUNDS FOR THE ORIGINATION OF ANY ALLEGED LOAN TRANSACTION WITH THE BORROWER.
  7. ADMIT THAT THE MASTER SERVICER NEVER ISSUED (AND DELIVERED TO BORROWER) AN ACCOUNTING OR REPORT FOR THE ORIGINATION OR TRANSFER OF THE SUBJECT “LOAN.”
  8. ADMIT THAT THE CREDITOR WHO WOULD QUALIFY UNDER CALIFORNIA STATUTES TO SUBMIT A CREDIT BID AT AUCTION WAS RECEIVING PAYMENTS FROM THIRD PARTIES IN RELATION TO THE SUBJECT “LOAN.”
  9. ADMIT THAT THE MASTER SERVICER OR OTHER AGENTS OF THE CREDITOR AS DEFINED IN THE PRECEDING PARAGRAPH RECEIVED PAYMENTS FROM THIRD PARTIES IN RELATION TO THE ALLEGED POOL IN WHICH THE SUBJECT “LOAN” IS CLAIMED TO BE INCLUDED AS AN ASSET.
  10. ADMIT THAT NO THIRD PARTY PAYMENTS HAVE BEEN REFLECTED IN THE DEMANDS UPON BORROWER.
  11. ADMIT THAT NO ACCOUNTING DEBITS OR CREDITS HAVE BEEN REPORTED TO THE BORROWER OR SUBSERVICER AS TO RECEIPTS AND DISBURSEMENTS RELATING TO THE SUBJECT LOAN, DIRECTLY OR INDIRECTLY?
  12. ADMIT THAT THE “BORROWER’S” ACCOUNT WAS NOT REDUCED BY THIRD PARTY PAYMENTS.
  13. Admit that the note and deed of trust at issue in this litigation were never assigned to DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE OF THE INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR14 (hereinafter “AR-14 Trust”).
  14. Admit that, as the alleged servicer, OneWest Bank, F.S.B. is required to make advance payments of principal and/or interest under Section 3.06 of the Pooling & Servicing Agreement of the AR-14 Trust.
  15. Admit that, as the alleged SUBservicer, OneWest, Bank, F.S.B. is required under Section 3.07 of the Pooling & Servicing Agreement of the AR-14 Trust to have individualized loan by loan accounting of the Notes and Deeds of Trust/Mortgages allegedly in the AR-14 Trust.
  16. Admit that the arrears amount listed in the Notice of Default on August 10, 2011, #20111074447, recorded in the Los Angeles County Recorder’s Office was from the alleged SUBservicer’s (OneWest Bank, F.S.B.) account and not the account of the alleged creditor.
  17. Admit that the AR-14 Trust never sent a written Declaration and Demand for Sale to MTDS, Inc. a California Corporation dba Meridian Trust Deed Service for the Notice of Default dated August 10, 2011, #20111074447, recorded in the Los Angeles County Recorder’s Office.
  18. Admit that the amount listed in the Notice of Default on August 10, 2011, #20111074447, recorded in the Los Angeles County Recorder’s Office, did not match the amount that was reported to investors of the AR-14 Trust as required under Regulation AB Item 1122(4)(v).
  19. Admit that the alleged loan obligation under the Note and Deed of Trust at issue in this litigation is not in default.
  20. Admit that no due diligence was conducted by YOU as to whether the note and deed of trust at issue in this litigation was ever properly assigned to YOU pursuant to the requirements of the Pooling & Servicing Agreement and 424B Prospectus.
  21. Admit that there was never any memorialized monetary transaction between YOU and Plaintiffs.
  22. Admit that MTDS, Inc. dba Meridian Trust Deed Services was never substituted as Trustee.
  23. Admit that representations were made to the Superior Court County of Los Angeles that the AR-14 Trust was the beneficiary and proper foreclosing party.
  24. Admit that third parties have made contributions to Plaintiffs’ account by way of, but not limited to, advances, credit default swaps, insurance or government funds.
  25. Admit that these contributions were never credited to Plaintiffs’ account.
  26. Admit that mortgage payments received by Plaintiffs were never properly credited to their account.
  27. Admit that YOU never had the necessary documents to show ownership and status of YOUR account as the alleged creditor.

12 Responses

  1. JG,

    My email is seanmpark67@yahoo.com. Thanks so much…

  2. @sean – you may have a leg to stand on if the f/c took place with a lis pendens on the property. The subsequent transfer by the party who made the credit bid is no good if the court were to find in favor of the lis pendens at the time of the initial f/c and credit bid in my lay opinion only. By that I mean that the lp needs to have precluded any kind of action as a matter of law while it existed. The lp is also connected to a court’s abiliity to exercise control over the object of litigation, the property. Expunging an lp does not expunge it retroactively, unless a court has a right to so rule (got me) and did so. You have a lot of work to do and really need an attorney who gets this stuff, and that might be one who formerly represented title companies. I have a number of cases regarding lis pendens which may or may not support an lp precluding any activity on a property. If you give me your email address, I will get your mailing address and send you a cd or just email you the cases I have. Don’t know or say what they’re good for. You need a lawyer. I will give you what I have – cases. Get a lawyer. Whether or not a case or five support anything is not the end of the matter. One still has to navigate the judicial system. You need a lawyer, and a lawyer may not agree with anything you think you find in a case. But I will give you the cases I have if you want them, again not knowing what they support or not.

  3. Hi John,

    Sorry, I didn’t explain very well. We have US District cases that were ongoing at both auctions. The first sale wells fargo bought back on a credit bid which was originally a wachovia loan. I believed wachovia long sold it before wells took over. The point is I’m trying to find out options as wells fargo later sold the property to a 3rd party after “judge” in my lawsuit expunged our lis pendens. I believe the 3rd party knew as it was a cash deal and wells fargo sold it for half price of the latest comps….We also notified lawyers title rep constructive notice who granted wells title anyway..

    In second scenario (property) it was sold at auction to 3rd party bidder who laughed when I gave him 5 inches of court filed documents. BTW, it was a MERS/US Bank/Bill Koch robosignor.

    I’m trying to find out the bona fide purchaser legalities regarding these two “sales”. Would they be liable?

    Thanks for all your information…

    Sean

  4. sean – just remembered something. It might be that a court can set aside a transfer of a property when there is a lp of record. And by that I mean on that basis alone. Might be limited to a ‘proper’ lp – don’t know (need to ask good lawyer). The reason is because the intent, if not the legislative intent in providing for lis pendens, of a lis pendens is in fact to preclude transfer of a property while it’s title or interest therein is the subject of dispute. If this is true, it stands alone, not dependent on the outcome of the litigation. It’s also to do with jurisdiction – like a court must be able to retain jurisdiction of the matter. Unitl recent years, this wasn’t news, the tenets of a lis pendens, but it’s only recently that it’s become the issue it is today, so you would need to find an attorney who has concentrated on real property law. imo. Or get a case law conduit and start your engine.
    Then get a lawyer.

  5. @sean – the truth in my lay opinon is that a lis pendens is only filed
    pursuant to a law suit. No law suit, prob shouldn’t file a lis pendens. Use another vehicle, like a NOTICE of beefs to impart constructive notice. Constructive notice = no bona fide purchaser. It will not preclude a transfer, but it will preclude bona fide purchaser status if there is a contest later).
    Anyone who takes a property which has a proper lis pendens takes title subject to the outcome of the suit noticed by the lis pendens. And in my lay opinion, that includes a transferee of a dot. A lis pendens should give notice of the lawsuit, including the venue and the case number. If a buyer jeered at you (sorry), he felt no threat by your lp, esp if it did not recite the venue of the case and the case # .
    This is not legal advice. I’m a layperson. Ask a lawyer who practices in this area of law.

  6. @SP: lispendens is worthless. here are Mafia (lawyers) within Mafia (courts & cops) within Mafia (justice system) hand in hand engaged in outright nationwide looting for themselves & masters. http://www.youtube.com/watch?v=HPeewNKw0Hc

  7. Hi Charles,

    What happens when your property was sold back on a credit bid to wachovia/ wells (9/2010) then sold to a 3rd party a year later (9/2011)?
    We filed a lis pendens in US District court which was later expunged before selling to 3rd party. We also notified the title company (Lawyers) who granted the new 3rd party title BEFORE the sale. I also have video tape at auction telling auctioneer and any purported buyer of lawsuit and clouded title.

    Second scenario, my property was purchased by a 3rd party at auction despite telling bidder that property title was flawed and had a Notice of Pendency filed. The bidder just laughed. I also have the video tape.

    Any information is appreciated.

  8. @Carie,

    Remember at this point you are in the discovery phase of the law suit, the cards are on the table and I would hope lis pendens was filed to let others know of such Notice of Pending Action regarding the sale.

    At this point a response such as you refer, would not make it through any hearing.

  9. I believe there is a 90 day to 1 year right of redemption if sold to an non BPV and I think 2 years for investor purchased property. Indeed, if you read the statutes, no question the influence.

  10. “If any of these requests for admissions cannot be fully answered, please answer to the extent possible, specifying the reasons for your inability to answer the remainder, and set forth any information, knowledge or belief you have concerning the unanswered portions.”

    Neil—they will respond with:
    “We are of the opinion we are following all applicable laws…etc…”

    And then proceed with foreclosure.

  11. Yes,that’s right, Charles. I linked that a few days ago. I don’t know whaddup with CA. Their outrageous decision that sub’ing a dot trustee within, oh a couple weeks or so, after that alleged dot trustee has filed a NOD is ‘substantial compliance’ is an outrage. If CA doesn’t demand strict compliance, it should. The Trust Deed Act relieved the borrower of his lengthy right of redemption post-foreclosure. It may be the way their tweaked statutes read just now, i.e. “substantial compliance”. If so, imo, there can be NO doubt this is a result of
    bankster influence on statute. Most people don’t understand the right of redemption, so they don’t know what they gave up. Someone needs to take up that ‘substantial compliance’ bull and get it
    86’d, even if it requires legislation. The dot trustee replaced courts mol to avoid judicial foreclosure, and they have whittled away at the intent and spirit of that Act to where they might just as well cut out the stinking dot trustee, who is no more than the minion of the alleged beneficiary. In that regard, there just is no deed of trust. There is foreclosure at the whim of the alleged beneficiary, period. Lenders got an inch by the Trust Deed Act, and as I have said, have taken a very, very ugly mile. The implementation of MERS sealed our fate if it weren’t headed that way, which it was.

  12. Cal. Code of Civ. Proc. § 2033.060(d) prohibits instructions with Requests for Admissions. Be sure to read the code and comply before propounding. (especially 2033.060 et seq. regarding RFAs)

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