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FIGHTING THE TRUSTS IN DISCOVERY
Title is often changed for the sole purpose of overcoming a disputed forced sale conducted under a nonjudicial state’s foreclosure statutes. A homeowner, fighting a wrongful foreclosure, should make a request for production regarding the details of the sale upon which the bank relies on in its filing of the instant action and it’s “response” to the homeowner’s (defendants) inquiry. The ‘lender’, or servicer, will typically contend that the homeowner’s requests are beyond the scope of discovery, especially in a nonjudicial action.
The homeowner can file a motion to compel the production of documents upon which the Plaintiff relies on to assert that its forced sale was valid, proper, and legal. A lender will typically reference a Power of Attorney as its authority to bring the action and as proof that the sale was valid, –i.e., that it was conducted by a duly authorized substitute trustee, appointed by a beneficiary, that meets the definition of a beneficiary under the mortgage or deed of trust.
The validity of the referenced power of attorney and its reality of its existence are crucial for the alleged ‘lender’ to even bring the instant non-judicial action and respond, as a party, to discovery. If it does not exist or is not a current source of power granted by the creditor, then the bank’s reliance upon it is misplaced. However, the lender typically refuses to produce it for inspection.
A homeowner may then file a request to produce that which is asked for, inter alia, (1) the power of attorney, and (2) the alleged trust instrument that might be evidence of the existence or nonexistence of the trust for which the Lender/Trustee claims to be acting. If there is no completed trust instrument for an existing entity that had been funded, then there is no trust, and therefore, there can be no trustee or servicer deriving their “powers” from a trust that does not exist.
The servicer or plaintiff will typically refuse to produce the Power of Attorney claiming that the homeowner/defendant is not entitled to such documents. In its response, the servicer’s strategy is to rely entirely upon “legal presumptions” that it asserts arise by virtue of the existence of a forced sale in the property records. This avoids the issue of whether the forced sale was void, voidable or conducted under presumptions of fact that are in conflict with actual fact.
The servicer’s position is that because the sale occurred, the homeowner/defendant has no right to inquire about any information that might lead to the discovery of admissible evidence that the sale was or could be declared void or subject to being vacated.
This is circular reasoning and contrary to due process. If the sale was conducted in favor of a party who claimed to be a beneficiary, but was not a beneficiary under the deed of trust, then the appointment of the substitute trustee was void, as was the notice of default and the notice of sale, thus leading to the clear conclusion that the sale was void or subject to being vacated. Without the validity of the forced sale, no action for unlawful detainer arises.
This article is not legal advice, but for discussion purposes only.
Patricia Rodriguez, Attorney
If you need immediate assistance and are located in California, please call 626-888-5206.
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The Rodriguez Law Firm is Located at:
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Pasadena, CA 91105
Filed under: foreclosure | Tagged: attorney patricia rodriguez, blog talk radio neil garfield show, discovery, illegal detainer |
The judge denied my request to compel discovery…
I forgot to state not only was it not executed till 4 months after the sale, but not recorded until 4 months after the sale.
Thanks that is what I thought, but the fact they included the last sentence to read -We further ratify any and all previous actions taken by the (LAW FIRM) with regard to the above mortgagor.
I like to believe that officers of the court are held to a higher standard and to their “Code of Ethics” and do not participate in any way to “deceptive trade practices” to circumvent the law involving documents for foreclosures. However we see day in day out that the laws to not pertain to anyone but the homeowners.
In most states, those POA’s MUST be recorded in the County for which the property is located. Failure to record means it is not enforceable.
(And, I should add, really need to name the appropriate parties, et al, and at the time the POA was executed. Worth checking.)
Love how these law firms and servicers cover themselves. Power of Attorney from Nationstar to the Law Firm was executed 4 months after the sale, however to cover themselves the last statement on the Power of Attorney says Nationstar ratifies all previous actions taken by the Law Firm (foreclosure sale).