UNPUBLISHED AZ APPELLATE DECISION ON IMPROPER SERVICE VOIDS FORCIBLE DETAINER

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SEE FHLM V TIETJEN LACK OF PROPER SERVICE OF PROCESS CV20100212

Before you start thinking that this decision is of little consequence, consider this: First Magnus cases are riddled with service problems just as most of the cases are filled with fabrications, forgeries and misrepresentations. This Court might reconsider its decision to make this case unavailable to be cited as precedent when it starts seeing more of these appeals. I know of one case where the Judge actually threatened to cuff the party and wait for service in court.

But read the case carefully because it is correct as to its reasoning. You can easily waive service of process by asking for anything other than dismissal for lack of jurisdiction. The converse mistake is also being made where once the Judge has ruled, the homeowner fails to assert defenses for fear of it being construed as a waiver of the original objection to service. Once the Judge rules, all defenses should be raised.

While this case is NOT some great victory for homeowners across the state of Arizona nor anywhere else, it is another incremental step of the court system in scrutinizing the actions of the supposed lenders. It also reveals some pique by the appellate judges about the cavalier attitude of trial judges towards homeowners in ignoring the express public policy of the State of Arizona that foreclosures are a bad thing for the state as well as the homeowners. The legislature passed that language, not some wild-eyed blogger. Look it up.

 

Should Borrower File Eviction Against Bank?

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EDITOR’S COMMENT: I was talking with an expert in landlord tenant law and I received an interesting suggestion. The case involved someone who has just been served with a writ of restitution where the owner had to peaceably leave her home — or it wouldn’t be so peaceful. The suggestion was that the owner file a forcible detainer action of her own against the current party that evicted her and accuse them of trespass as well. If she has proof, and in this case she does, that the documents were forged (even the verified complaint for eviction was forged) then there were many false parties and false documents.

So I squeezed my source a little more and the following is the line of reasoning he was suggesting that we follow from a fact standpoint. The names and details are redacted except for the pretenders. Comments anyone?

  1. Petitioner’s primary residence has just been served with a writ of restitution requiring her to vacate the premises.
  2. Petitioner is the legal owner of the property.
  3. Petitioner cooperated with law enforcement, but states affirmatively that she has proof that the verified complaint filed by US Bank for the forcible detainer from her primary residence was a forged document with a false notary.
  4. Further, Petitioner now has in her possession proof that the documents by which US Bank claims to be the creditor were also forged, fabricated and misrepresented to the court intentionally and with willful disregard for the consequences or the truth.
  5. Petitioner asserts that US Bank used trickery and falsehood to falsely represent facts to the Court that it knew were untrue.
  6. The Substitution of Trustee was a false, forged and fabricated document that was misrepresented by US BANK and their counsel as being authentic.
  7. Using the false Substitution of trustee, US BANK caused a false, fabricated notice of default, despite payments being made under contract to the creditors.
  8. Using the false Notice of Default, US Bank caused a false Notice of Sale to be issued despite the fact that it was neither the beneficiary nor the lender, nor a successor thereto by any means, nor had US Bank ever parted with anything of value that would constitute consideration or an interest in Petitioner’s obligation to creditors.
  9. Using the false Notice of Sale and the false substitute of trustee, a false auction was held by the false substitute trustee, where the false substitute trustee represented US Bank as the false creditor and the false trustee “Accepted” a non-existent bid (US Bank was not present at the false auction) in which the false substitute trustee issued a deed upon “foreclosure” without receiving any consideration of any kind.
  10. The false substitute trustee was at all times under the direct control and instructions of US BANK. US Bank had in substance substituted itself as the false trustee using the CalWestern entity.
  11. Using the fraudulently created and fraudulently obtained deed from the false substitute trustee US Bank initiated an FED action against the Petitioner.
  12. Using the false, forged, fabricated and unauthorized documentation described above, and using the rules of eviction to its advantage, US Bank obtained a Judgment for Eviction and Restitution of the premises against the Petitioner.
  13. Using the fraudulently obtained Judgment for Restitution and Eviction, US Bank filed the required documents for a writ of restitution to issue.
  14. Petitioner is now legally evicted from a home that she legally owns since the deeds used by US Bank were wild deeds, unauthorized and not in the chain of title.
  15. Petitioner demands possession of her home.
  16. The actions of US Bank constitute slander of title, trespass, and have caused severe emotional distress to the Petitioner.
  17. To allow US Bank to continue on this march of theft would make this court a co-venturer in a gross miscarriage of justice.
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