Blomberg Celebrates New Revised Hogan

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Darrell Blomberg is a presenter at our kickoff of the national tour of seminars starting July 26, 2012 in Chandler, AZ. He is NOT a lawyer but in my opinion has a better understanding of the law, its application and the context of the fake securitized loans than practically any else I know. He is completely correct in his analysis of the Hogan decision below.

I strongly advise homeowners who are near the Chandler location, to go find a lawyer and or contact the one they already have and PAY for the lawyer to attend the seminar and maybe pay for their own attendance as well. Paralegal add-ons are available as well.

Editor’s Note:

Darrell is 100% right that this decision poses a mammoth shadow problem for those people who are working for “Trustees” and conducting sales, sending notices of default and sending notices of sale. Issuing a deed on foreclosure to a party who who was the creditor but submitted a credit bid instead of a cash bid is only one issue. The fact is that if the Trustee becomes aware of a bona fide dispute between the alleged beneficiary or creditor and the borrower the Trustee has only ONE CHOICE: They must petition the court for a ruling because the Trustee does not have the power to conduct hearings. It IS that simple.

The reason they are not doing that and the reason why there is a substitution of trustee filed in every case is that the original trustee WOULD do that and would conduct due diligence, which the banks cannot afford because they know they don’t have the goods — they are not the creditor and in many cases even the the real original creditor is no longer present because of the trading activity and recompilation of the pools with different assets, loans and even using other derivatives as assets. 

These facts will all come out when the burden is put on the supposed creditor to show the transaction in which they paid real money for the loan. No such transaction exists. So they cannot submit a credit bid and probably don’t have the authority to initiate foreclosure proceedings. The potential liability of the Trustees that were substituted and perhaps even the original trustees is staggering when applied to prior foreclosures. When it becomes clear that the new trustee is appointed by a stranger to the transaction calling itself the beneficiary when it is not the beneficiary and new trustee is owned or controlled by the new “beneficiary.”

By Darrell Blomberg, July 11, 2012:

The Supreme Court of Arizona released their amended opinion this morning.  I have attached it for you or here is the link:  http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2012/CV110115PR.pdf.  The essential changes were confined to section 11.

First off, I offer HUGE KUDOS and THANKS to all the extraordinary people who contributed to the effort of getting this all the way to the Supremes and then back into their court for a well-earned reconsideration.

The challenge with Hogan was that the questions were never optimally framed and Hogan didn’t make the record with sufficient allegations and assertions.  His pleadings left too many escape hatches open.  (No slight to anybody; the questions didn’t appear until long after the best-for-the-day questions were put forth.)  I’m amazed at “amount” of decision we got from the Supremes considering those challenges.

I believe the new “Moreover, the trustee owes the trustor a duty to comply with the obligations created by the statutes governing trustee sales and the trust deed.” language is very beneficial to homeowners and attorneys.  I think this is vastly better than the prior decision and gives us a lot more umph.  This is a clear statement of the court tying “duty” together with “statutes governing trustee’s sales and the trust deed.”  I can’t remember something so elemental and so important happening for us at any administrative, judicial or legislative level.  Tying duty to the statutes and contract was always sketchy but this decision does it succinctly and boldly.

This is precisely what all of my “Cancellation Demand Letters” have been geared to convey.  This decision will certainly be added to every “Cancellation Demand Letter” from now on.

Don’t forget this amended language:”A.R.S. § 33-801(10) (providing that “[t]he trustee’s obligations . . . are as specified in this chapter [and] in the trust deed”).”  It’s sure to be used against our efforts.  I think this can be well mitigated by the Consumer Financial Protection Bureau bulletin 2012-03 which tied the servicer (beneficiary?) and the sub-servicer (trustee?) together for liability purposes.  Perhaps it doesn’t reign in the trustees so much but it sure raises the temperature on the beneficiary.  With the right amount of pressure on the beneficiary maybe they’ll heat up the trustee for us.  (See attached or this link: http://files.consumerfinance.gov/f/201204_cfpb_bulletin_service-providers.pdf)

For the record, here is the language that was removed from the original opinion: “Moreover, the trustee owes the trustor a fiduciary duty, and may be held liable for conducting a trustee’s sale when the trustor is not in default.”

My commercial:  If you know anybody that is in need of an all-out analysis of the Arizona Trustee’s Sale process that I turn into a letter for the homeowner, please let me know.  My letters are a great way to make the record and maybe even cancel a few notices of trustee’s sales along the way.  (Contact info is below.)

For further consideration, here is Black’s 6th on “Duty.”

Duty. A human action which is exactly conformable to the laws which require us to obey them. Legal or moral obligation. An obligation that one has by law or con­tract. Obligation to conform to legal standard of reason­able conduct in light of apparent risk. Karrar v. Barry County Road Com’n, 127 Mich.App. 821, 339 N.W.2d 653, 657. Obligatory conduct or service. Mandatory obligation to perform. Huey v. King, 220 Tenn. 189, 415 S.W.2d 136. An obligation, recognized by the law, re­quiring actor to conform to certain standard of conduct for protection of others against unreasonable risks. Samson v. Saginaw Professional Bldg., Inc., 44 Mich. App. 658, 205 N.W.2d 833, 835. See also Legal duty;Obligation.

Those obligations of performance, care, or observance which rest upon a person in an official or fiduciary capacity; as the duty of an executor, trustee, manager, etc.

In negligence cases term may be defined as an obli­gation, to which law will give recognition and effect, to comport to a particular standard of conduct toward another, and the duty is invariably the same, one must conform to legal standard of reasonable conduct in light of apparent risk. Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739, 741. The word”duty” is used throughout the Restatement of Torts to denote the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor’s conduct is a legal cause. Restatement, Second, Torts § 4. See Care; Due care.

In its use in jurisprudence, this word is the correlative of right. Thus, wherever there exists a right in any person, there also rests a corresponding duty upon some other person or upon all persons generally.

Duty to act. Obligation to take some action to prevent harm to another and for failure of which there may or may not be liability in tort depending upon the circum­stances and the relationship of the parties to each other.


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