TONIGHT! How to Win Eviction/UD Actions

Posted on October 11, 2018 by Neil Garfield

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Charles Marshall will discuss today two seminal unlawful detainer (UD) cases, in which respectively in each case the lower Court there found per usual for the institutional UD Plaintiff against the ‘former’ homeowner who was foreclosed on by an institutional trust, aka ‘lender-in-succession’. Yet on appeal of the UD judgment, in both these separate cases, the appellate courts reversed the judgment and remanded the cases.

First up for discussion today is Bank of New York Mellon (BNYM) v. Preciado, the appeal decided in August 2013. The second case is US Financial, L.P. v. McLitus, decided on appeal in August of 2016, which appeal decision was published in November 2016.

Both appellate courts found that neither UD Plaintiff had perfected title, as required by CCC 2924. Will discuss the reasons for this on today’s show.

The courts are meandering back to application of basic law, now that their fears of causing global collapse seem behind them. In Hawai’i the Supreme Court decided that subjective criteria used to dismiss homeowner claims were inapplicable and added that a wrongful foreclosure action could be filed BEFORE the foreclosure was finalized.

In Unlawful Detainer (UD) actions brought in nonjudicial foreclosure states (the majority) there has always been tension between the lawsuit that must be filed by the party claiming possession and the burden of proof. Judges seem to perceive it in the past as just another action for TRO where the homeowner must essentially assert defenses to pleadings that are not filed by the foreclosing party and then prove assertions without having access to the records of the opposing party.

Make no mistake about it. The UD proceeding is the first time anyone makes allegations about the change of title through the foreclosure process and therefore is the first time the homeowner is entitled to frame a narrative defense to real allegations ultimately relating to “perfecting title.”

But the key is the willingness to fight despite  apparently long odds against the homeowner. It’s not as bad as it looks, but it is still an uphill battle. 99% of all UD actions are resolved by the homeowner defaulting on either answering the complaint or failing to prosecute the defenses. Of the cases that are hotly contested, my perception is that somewhere between 25%-35% of homeowners actually win. That figure could be low because of the lack of definition of what constitutes a hotly contested case.

Note that the cases scheduled to be outlined by Charles are appellate cases in which the homeowner lost at the trial level. That means a commitment to persist in the fight is the primary factor in winning homeowner cases, one by one.

Filed under: foreclosure | Tagged: , | 3 Comments »

Tricks of the Trade: Banks’ Playbook Behind the scenes

Posted on August 28, 2018 by Neil Garfield

For those who are willing to do the work, events after the “sale” of the foreclosed property will probably reveal the puppets and at least point to the puppet-masters.

As you investigate each named party leads to a dead end without any legal entity who is responsible for the actions taken.

I have a client who is in a predicament that is usually the way things go in the world of false claims of securitization and false paperwork, false sales, and transfers after sales of the property. Taking my advice she has admitted nothing and she assumes that whatever “information” is proffered by the attorneys handling the foreclosure is a lie. So she continued to follow the trail even after the property was supposedly sold and a deed was issued supposedly to the trust who according to the foreclosure mill was the owner of the “loan” (or at least the debt.

Part of her problem is that when she looks up the “owner” on the website of the county recorder, a name pops up that was never in the foreclosure, never in litigation and never in the chain of title.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

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Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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In this case American Home Mortgage Investment Company (AHMIC) suddenly shows up on the website of the recorder’s office at the time when an eviction or unlawful detainer is about to be filed.
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Note that there is a difference between judicial states where defenses have theoretically at least been tried and decided and nonjudicial foreclosure states where the first time that the “foreclosing party” is forced to  make and prove allegations is in the unlawful detainer action. In nonjudicial states many intrepid homeowners and lawyers have achieved either victory or settlement, in some cases causing the case to drag out for 10 years or more.
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This gets into the tricks of their trade. They use their corrupt influence with clerks at the office to show whatever name is given to the clerk who makes entries on the website. I have personally seen this in action in a Citi case where the clerk in a corrupt Florida county changed the name of the Plaintiff multiple times without admitting to why she did so and from whom she had received her instructions — because there certainly was no pleading filed that changed the name of the Plaintiff. The corrupt county is the only county government ever audited by the state auditor and which resulted.
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The website is not the official record although it is usually treated as such. A frequent ploy of the mill lawyers is to ask the court to take judicial notice of what is on the recorder’s website, or what is on the sec.gov website.
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In both cases the entries are made by the lawyers or the servicers and are entirely self serving. Judicial notice is NOT to be applied just because data or documents appear on an agency website.
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Judicial notice is an economical way of proving a fact that everyone knows to be true, is not contested and was generated from a credible source which by definition is NOT a party who would benefit from the entry or uploading.
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The only way AHMIC could be the owner of the property is if one of the following  conditions was met:
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  1. AHMIC  entered into a transaction with the trust, with Deutsche Bank as Trustee in which the property was purchased for value from the Trust. If a deed exists that says that it is very recent because it did not come to me as part of the foreclosure chain of title.
  2. AHMIC  entered into a transaction with the trust, with Deutsche Bank as Trustee, but signed by Ocwen as “attorney in Fact” in which the property was purchased for value from the Trust. If a deed exists that says that it is very recent because it did not come to me as part of the foreclosure chain of title. Without a power of attorney attached, in accordance with industry standards, or at the very least identified by date and parties, the execution of such an instrument must be further investigated to determine if the execution of the deed was valid and not void.
  3. A person whose employment is uncertain executed a deed to AHMIC on behalf of either the trust, the trustee and /or Ocwen (as attorney in fact — see preceding paragraph on power of attorney). There is no consideration or value paid although the deed may state something like $10 and other valuable consideration. This is the most likely scenario.
    1. If the facts conform to this, then the transfer without value indicates that AHMIC was a conduit or alleged principal (most likely conduit) at the time of the sale. Your opposition will state that the bid by the trust was a credit bid on behalf of a “creditor”.
    2. The transfer without value indicates that the foreclosing trust was only a placeholder for an undisclosed party. AHMIC could not be a creditor unless it had an actual financial stake in the purported loan. In actuality AHMIC is stepping into the nonexistent shoes of American Brokers Conduit, which is merely a fictitious name.

In other words their games, often revealed after the foreclosure sale and mostly overlooked reveal the misrepresentations of fact that were knowingly made to the Judge, the homeowner, and indeed the world through recording instruments that should never have been drafted, much less executed and recorded.

Filed under: foreclosure | Tagged: , , , , , , | 19 Comments »

Why Everyone (except SCOTUS) is Wrong About TILA Rescission

Posted on June 26, 2018 by Neil Garfield

All contrary arguments are erroneous since they would insert a contingency where the statute contains no room for any contingency. The language of the statute bars any such contingency when it says that the TILA Rescission is effective upon delivery, by operation of law. If anyone wants the statute to say or mean anything different they must get their remedy from the legislature, not the courts, who have no authority whatsoever to interpret the statute otherwise. The status of any case involving foreclosure is that it does not exist. Hence the court is left ONLY with the power to perform the ministerial act of dismissing the case for lack of jurisdiction.

Let us help you plan your TILA RESCISSION strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

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Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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So in answer to questions about putative “modifications”, eviction or unlawful detainer, bankruptcy, and TILA Rescission this is what I have written in response to some inquiries.

Should the rescission be recorded? Not necessarily but

YES. I would like to see it recorded. You need to check with the clerk in the recording office or an attorney who understands recording procedure. Generally recording a document with an old date must be attached to an affidavit that is recorded with the notice of rescission attached. The affidavit explains that the attachment was inadvertently not recorded at the time it was created.

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Should a copy of the notice of rescission be filed in the court record also?

YES. If there is any way to get the recorded document into the court record, it should be pursued.

This presents title issues because if you are recording this long after events have transpired, some of which are also recorded as memorializing transactions, fake or real. Any recorded instruments that purports to be a memorialization of a transaction before the rescission was recorded would generally be given priority.
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The lawyer sent me an answer to my notice of rescission. Now what?
Either file to enforce the duties to be performed (if you are within one year of the date of delivery of the notice of rescission), or file a quiet title action if the one year has expired. There are several different scenarios actually, but this is the one I would focus upon.
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I am getting kicked out of bankruptcy court. Now what?
Getting “kicked out” of BKR court probably means that you are back in the state court system which might open some opportunities for you to get more into the court record. (Like an old rescission).
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My property is being sold. Does that mean that I have to get out?
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They can’t get you out without filing an unlawful detainer (eviction in some jurisdictions) based upon an asserted change of title. There might be a period of time between the sale and the attempt to get you out of the home (eviction or unlawful detainer). If the property is sold to a “third party” they want want rent from you, which could allow you to stay.
The unlawful detainer action presents another opportunity to raise the issue of rescission, since the entire action is based upon a valid change of title. It also sets off potentially another round for appeal, especially on the issue of rescission. Res Judicata and Collateral Estoppel do not apply to jurisdictional issues. If the rescission was mailed then by operation of the law the note and mortgage are void.
The defense is ordinarily that the “sale” was a fabrication based upon fictional claims and was contrary to the notice of rescission, which voided the note and mortgage upon which they were relying. The time for challenging the rescission has long passed. Hence all enforcement actions after the date of the 2009 rescission are void since they were based upon various claims attendant to paper instruments that were void, effective the day of delivery of the rescission.
Note that delivery of TILA Rescission notice is complete when dropped in a USPS mailbox and your testimony that it was sent via US Postal Service is all that is necessary as foundation.
I sent 2 notices of rescissions. Is that better or worse for me?
If I was defending against your claim of rescission I would argue that sending the 2016 rescission was either an admission that the earlier one had not been sent or that it was a concession that, for whatever reason, the 2009 rescission notice had been abandoned.
Hence I suggest you put very little emphasis on the new rescission and maximum emphasis on the old rescission.
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I sent the rescission less than 3 years after the modification but more than 3 years since the alleged consummation. Hoes my rescission affect my loan in that instance?
In most cases “modifications” are not treated as new loans. But the fact that something is called a modification and it really changes everything including the “lender” it may be possible to characterize it as a new loan subject to TILA Rescission. TILA Rescission hinges on whether the “modification” was a new loan — a fact, we would argue — that must be determined by trial. Since intent is part of the analysis of a contract, this could present another opportunity to force them to admit they don’t know the identity or intent of the creditor and whether said creditor had given them authority to make a new contract.
And the underlying narrative for this approach is that as a new contract, the “lender” was required to comply with disclosure requirements at the time of the new contract, thus triggering the three day right of rescission and the the three year limitation. Under my theory, based on Jesinoski, it doesn’t matter whether the three years has expired or not.
We know for certain that the notice of rescission is effective upon mailing; it is not based upon some contingent event or claim or court order. The date of consummation is itself a factual issue that can be in the pleading of the creditor (who is the only one with standing, the note and mortgage having been rendered void) claiming that the notice of rescission should be vacated based upon the three years, the date of consummation etc. 
Any alternative theory that puts the burden on the property owner would be contrary to the express wording of the statute and the SCOTUS ruling in Jesinoski. The statute 15 USC §1635 and SCOTUS are in complete agreement: there is no law suit required to make rescission effective. It would make the statutorily defined TILA Rescission event indefinite, requiring a court ruling before any rescission would be treated seriously. In other words, the opposite of what the statute says and the opposite of what SCOTUS said in Jesinoski. 
All contrary arguments are erroneous since they would insert a contingency where the statute contains no room for any contingency. The language of the statute bars any such contingency when it says that the TILA Rescission is effective upon delivery, by operation of law. If anyone wants the statute to say or mean anything different they must get their remedy from the legislature, not the courts, who have no authority whatsoever to interpret the statute otherwise. The status of any case involving foreclosure is that it does not exist. Hence the court is left ONLY with the power to perform the ministerial act of dismissing the case for lack of jurisdiction.
All this is important because we ought to be heading toward any defensive strategy that reveals the absence of a creditor. We are betting that the fight to conceal the name of the creditor is a cover for not knowing the the identity of the creditor, hence fatally undermining the authority as holder, servicer, trustee or anything else.
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What if consummation never occurred?
It may turn out that consummation between the parties to the note and mortgage never occurred. It’s important to remember that would mean the rescission is irrelevant since the loan contract does not exist. But such a finding by a court of competent jurisdiction would negate the legal effect of the note and mortgage; this is true as long as the note was not purchased for value in good faith by a buyer without knowledge of the borrower’s defenses.
In that case, the burden does shift to the homeowner and it is entirely possible that under that scenario there could be no consummation but nevertheless homeowner liability would continue on the falsely procured note and potentially the mortgage as well. The reason is simple: that is what the State statute says under Article 3 and Article 9 of the UCC, as adopted by all 50 states. The homeowner’s remedy in such a scenario would be limited to actions for damages against the intermediaries who perpetrated the the fraudulent and fictitious “transaction” in which the named lender failed to loan anything.

Filed under: BURDEN OF PROOF, foreclosure, jurisdiction, legal standing, MODIFICATION, Motions, originator, Pleading, quiet title, sham transactions, TILA rescission | Tagged: , , , , , , , , | 5 Comments »

Breaking it Down: What to Say and Do in an Unlawful Detainer or Eviction

Posted on December 21, 2017 by Neil Garfield

Homeowners seem to have more options than they think in an unlawful detainer action based upon my analysis. It is the first time in a nonjudicial foreclosure where the foreclosing party is actually making assertions and representations against which the homeowner may defend. The deciding factor is what to do at trial. And the answer, as usual, is well-timed aggressive objections mostly based upon foundation and hearsay, together with a cross examination that really drills down.

Winning an unlawful detainer action in a nonjudicial foreclosure reveals the open sores contained within the false claims of securitization or transfer.

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HAT TIP TO DAN EDSTROM

Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiffs title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment.” (Emphasis added.) (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159-160.) My emphasis added

So we can assume that they are specifically preserving your right to sue for damages. But also, if they still have the property you can sue to get it back. If you do that and file a lis pendens they can’t sell it again. If a third party purchaser made the bid or otherwise has “bought” the property you probably can’t touch the third party — unless you can show that said purchaser did in fact know that the sale was defective. Actual knowledge defeats the presumptions of facially valid instruments and recorded instruments.

The principal point behind all this is that the entire nonjudicial scheme and structure becomes unconstitutional if in either the wording of the statutes or the way the statutes are applied deprive the homeowner of due process. Denial of due process includes putting a burden on the homeowner that would not be there if the case was brought as a judicial foreclosure. I’m not sure if any case says exactly that but I am sure it is true and would be upheld if challenged.


It is true that where the purchaser at a trustee’s sale proceeds under section 1161a of the Code of Civil Procedure he must prove his acquisition of title by purchase at the sale; but it is only to this limited extent, as provided by the statute, that the title may be litigated in such a proceeding. Hewitt v. Justice’ Court, 131 Cal.App. 439, 21 P.(2d) 641; Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 25 P.(2d) 522; Berkeley Guarantee Building & Loan Ass’n v. Cunnyngham, 218 Cal. 714, 24 P.(2d) 782. — [160] * * * In our opinion, the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title

So the direct elements are laid out here and other objections to title are preserved (see above):

  • The existence of a sale under nonjudicial statutes
  • Acquisition of title by purchase at the sale
  • Compliance with statutes
  • Compliance with deed of trust

The implied elements and issues are therefore as follows:

  • Was it a Trustee who conducted the sale? (i.e., was the substitution of Trustee valid?) If not, then the party who conducted the sale was not a trustee and the “sale” was not a trustee sale. If Substitution of Trustee occurred as the result of the intervention of a party who was not a beneficiary, then no substitution occurred. Thus no right of possession arises. The objection is to lack of foundation. The facial validity of the instrument raises only a rebuttable presumption.
  • Was the “acquisition” of title the result of a purchase — i.e., did someone pay cash or did someone submit a credit bid? If someone paid cash then a sale could only have occurred if the “seller” (i.e., the trustee) had title. This again goes to the issue of whether the substitution of trustee was a valid appointment. A credit bid could only have been submitted by a beneficiary under the deed of trust as defined by applicable statutes. If the party claiming to be a beneficiary was only an intervenor with no real interest in the debt, then the “bid” was neither backed by cash nor a debt owed by the homeowner to the intervenor. According there was no valid sale under the applicable statutes. Thus such a party would have no right to possession. The objection is to lack of foundation. The facial validity of the instrument raises only a rebuttable presumption.

The object is to prevent the burden of proof from falling onto the homeowner. By challenging the existence of a sale and the existence of a valid trustee, the burden stays on the Plaintiff. Thus you avoid the presumption of facial validity by well timed and well placed objections.

” `To establish that he is a proper plaintiff, one who has purchased property at a trustee’s sale and seeks to evict the occupant in possession must show that he acquired the property at a regularly conducted sale and thereafter ‘duly perfected’ his title. [Citation.]’ (Vella v. Hudgins (1977) 20 Cal.3d 251,255, 142 Cal.Rptr. 414,572 P.2d 28; see Cruce v. Stein (1956) 146 Cal.App.2d 688,692,304 P.2d 118; Kelliherv. Kelliher(1950) 101 Cal.App.2d 226,232,225 P.2d 554; Higgins v. Coyne (1946) 75 Cal.App.2d 69, 73, 170 P2d 25; [*953] Nineteenth Realty Co. v. Diggs (1933) 134 Cal.App. 278, 288-289, 25 P2d 522.) One who subsequently purchases property from the party who bought it at a trustee’s sale may bring an action for unlawful detainer under subdivision (b)(3) of section 1161a. (Evans v. Superior Court (1977) 67 Cai.App.3d 162, 169, 136 Cal.Rptr. 596.) However, the subsequent purchaser must prove that the statutory requirements have been satisfied, i.e., that the sale was conducted in accordance with section 2924 of the Civil Code and that title under such sale was duly perfected. {Ibid.) ‘Title is duly perfected when all steps have been taken to make it perfect, i.e. to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt (Hocking v. Title Ins. & Trust Co, (1951), 37 Cal.2d 644, 649 [234 P.2d 625,40 A.L.R.2d 1238] ), which includes good record title (Gwin v. Calegaris (1903), 139 Cal. 384 [73 P. 851] ), (Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841, 327 P.2d 241.) ¶ To the limited extent provided by subdivision (b){3) of section 1161a, title to the property may be litigated in an unlawful detainer proceeding. (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159, 69 P.2d 832.) While an equitable attack on title is not permitted (Cheney, supra, 9 Cal.2d at p. 160, 69 P.2d 832), issues of law affecting the validity of the foreclosure sale or of title are properly litigated. (Seidel) v. Anglo-California Trust Co. (1942) 55 Cai.App.2d 913, 922, 132 P.2d 12, approved in Vella v. Hudgins, supra, 20 Cal.3d at p. 256, 142 Cal.Rptr. 414, 572 P.2d 28.)’ ” (Stephens, Partain & Cunningham v. Hollis (1987) 196 Cai.App.3d 948, 952-953.)
 
Here the court goes further in describing the elements. The assumption is that a trustee sale has occurred and that title has been perfected. If you let them prove that, they win.
  • acquisition of property
  • regularly conducted sale
  • duly perfecting title

The burden on the party seeking possession is to prove its case “beyond all reasonable doubt.” That is a high bar. If you raise real questions and issues in your objections, motion to strike testimony and exhibits etc. they would then be deemed to have failed to meet their burden of proof.

Don’t assume that those elements are present “but” you have a counterargument. The purpose of the law on this procedure to gain possession of property is to assure that anyone who follows the rules in a bona fide sale and acquisition will get POSSESSION. The rights of the homeowner to accuse the parties of fraud or anything else are eliminated in an action for possession. But you can challenge whether the sale actually occurred and whether the party who did it was in fact a trustee. 

There is also another factor which is whether the Trustee, if he is a Trustee, was acting in accordance with statutes and the general doctrine of acting in good faith. The alleged Trustee must be able to say that it was in fact the “new” beneficiary who executed the substitution of Trustee, or who gave instructions for issuing a Notice of Default and Notice of sale.

If the “successor” Trustee does not know whether the “successor” party is a beneficiary or not, then the foundation testimony and exhibits must come from someone who can establish beyond all reasonable doubt that the foreclosure proceeding emanated from a party who was in fact the owner of the debt and therefore the beneficiary under the deed of trust. 

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Filed under: burden of persuasion, BURDEN OF PROOF, Eviction, foreclosure, Trail Objections, Unlawful Detainer | Tagged: , , , , , , , , , , , | 22 Comments »

Eviction Immediately After Foreclosure?

Posted on May 20, 2017 by Neil Garfield

Lenders who foreclose and take ownership of security property via credit bid at the foreclosure sale often confront a tenant whose lease has been extinguished, but who would rather not vacate the property.

Just how quickly can the lender serve a notice to quit and start the eviction ball rolling?

A recent decision from California’s Second Appellate District — Dr. Leevil, LLC v. Westlake Health Care Center — clarifies the timing requirements.

Facts: lender forecloses, serves notice to quit immediately, then later records Trustee’s Deed and sues for unlawful detainer

Westlake Village Property, L.P. owned property containing a skilled nursing facility.  Westlake Village leased the facility to Westlake Health Care Center, an affiliated corporation.

The lease was for a 20-year term, and contained an automatic subordination clause, as many commercial leases do.

Six years into the lease, Westlake Village took out a loan from TomatoBank, secured by a deed of trust on the nursing facility property.  Westlake Village defaulted on the loan and declared bankruptcy.

The bank sold the loan to Dr. Leevil, LLC.  Leevil obtained relief from the bankruptcy stay, instituted a nonjudicial foreclosure sale (trustee’s sale), and purchased the nursing facility via credit bid.

The day after the trustee’s sale, Leevil served Westlake Health with a notice to quit.  Leevil recorded the Trustee’s Deed five days later.

Westlake Health refused to vacate the property, and Leevil sued for unlawful detainer.  Westlake Health claimed that its lease was senior to the deed of trust and that the notice to quit was invalid because it was served before the Trustee’s Deed was recorded.

Trial court’s judgment

The trial court ruled that the lease was subordinate to the deed of trust and was extinguished by the trustee’s sale.

The court also found that the notice to quit was valid, and ordered eviction.

Westlake Health appealed.

Court of Appeal’s opinion

The court of appeal affirmed the judgment in favor of Leevil.

If a lease executed before the recordation of a deed of trust does not contain a subordination clause, then the lease will survive a subsequent foreclosure — meaning the foreclosure purchaser takes the property “subject to” the lease.

But here, the court observed that the lease contained an automatic subordination clause.  As such, Leevil’s foreclosure sale extinguished Westlake Health’s lease.

The court also held that the Code of Civil Procedure (section 1161a) “does not require that title be perfected (i.e., that the trustee’s deed be recorded) before service of the three-day notice.  It requires that title be perfected before a tenant ‘may be removed’ from the property.”

In other words, a notice to quit (a prerequisite to an unlawful detainer lawsuit) is valid as long as the trustee’s deed is recorded before the owner files a lawsuit for unlawful detainer.

Lesson

When a lease is extinguished by a foreclosure sale due to a subordination clause, the foreclosure sale purchaser may immediately serve a notice to quit.  Under the Dr. Leevil decision, the notice to quit will be held valid as long as the trustee’s deed is recorded before the owner files a lawsuit for unlawful detainer.

[View source.]

http://www.jdsupra.com/legalnews/eviction-immediately-after-foreclosure-16755/

Filed under: foreclosure | Tagged: , | 1 Comment »

VA Court Finally Recognizes Circular Reasoning of the Banks

Posted on June 29, 2016 by Neil Garfield

“Because I said so” or “because I already did it” is not a recognizable legal ground for possession of property even after the forced sale of the property. In an action for possession of property, the taker must establish that it is the legal owner and that the ownership was obtained lawfully and properly. The fact that a prior judgment was entered allowing the foreclosure sale is not dispositive.

The “presumed facts” are directly contrary to the actual facts. Or, as I have stated it in other circumstances, the money trail does not match the paper trail. There are no real transactions in most instances.

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see http://4closurefraud.org/2016/06/28/parrish-v-fnma-subject-matter-jurisdiction-unlawful-detainer-supreme-court-of-virginia-va%c2%adcates-foreclosure-judgement/

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For ten years — about the same amount of time that I said the rescission is valid upon mailing and did not require lawsuit or tender — I have advocated and encouraged lawyers for homeowners faced with eviction, writ of possession, or unlawful detainer to adopt a simple logic. Eviction is proper when the owner and possessor merely leases the property or grants some sort of title that has expired. That is certain and it is final and nobody disagrees with it.

The problem in the Courts is that judges have routinely ignored one simple basic fact: the current occupier of the property had legal title and the total right to possession of the property before this new party came into the picture and claimed the right to title and now claims the right to possession. Final Judgments entered in the Court records are not dispositive as pointed out by this Virginia court and as pointed out by the Supreme Court of the State of California in Yvanova.

It is the second part of the “formula” that came up in a Virginia Court, which has been one of the most difficult states in the nation for homeowners contesting the baseless actions of foreclosing parties. The logic is simple. Where the homeowner was clearly the owner of record and the possessor, the party seeking foreclosure must assert (nearly always absent) and prove that it came into title ownership lawfully and properly.

The interesting thing about this is that if the homeowner contests the eviction or unlawful detainer and does so with sufficient grounds as to create doubt as to whether the party seeking eviction lawfully acquired title, THEN the burden shifts to the party seeking eviction to prove that everything that happened before was lawful and proper. And we all know that without legal presumptions being improperly applied practically none of the evictions were or could be proper.

Like other things this is not a magic bullet. But it provides some daylight. The Virginia court held that as long as the homeowner successfully raises a question about title, the court hearing the eviction claim must dismiss the claim immediately because it has no right or jurisdiction actually try a case based upon title claims. I think you would find similar laws in other states where, for example, if County court the jurisdiction is far more limited than it is in Circuit Court. The County Court may hear and decide and eviction but as soon as the Court sees a bona fide question about title, it must dismiss the case leaving the parties to sort out their differences elsewhere. That might be in state Circuit Court or Federal District Court.

The party seeking eviction would need to go to a court of competent jurisdiction and plead that (a) they are the lawful title owner (b) they are entitled to possession and (3) the current occupants have lost their right to possession even though they had both title and possession before the foreclosure. Any allegation based in actual fact must be proven by actual facts and legal presumptions clearly should not apply once the lower court has already determined that there is doubt as to whether the documents for title were validly issued. This might prevent the party seeking to confirm title and seeking the eviction from using any legal presumptions since the documents themselves have already been determined by a lower court to lack trustworthiness or authenticity or legal effect.

One thing to keep in mind is that without legal presumptions none of the foreclosures could go forward because there is no proof in existence, in most cases, of the existence of an executed loan contract between the homeowner and the “originator.” The “presumed facts” are directly contrary to the actual facts. Or, as I have stated it in other circumstances, the money trail does not match the paper trail. There are no real transactions in most instances. The paper trail creates legal presumptions but as soon as a court orders that the foreclosing party open its books to determine whether there were actual transactions, actual loans by the parties upon whom the forecloser relies, the bank case falls to pieces.

… a conundrum because some actions for unlawful detainer necessarily turn on the question of title. Unlawful detainer is an action against a defendant who lawfully entered into possession of real property but whose right to lawful possession has since expired. It is brought by a plaintiff lawfully entitled to possession at the time of suit, which the defendant is then unlawfully withholding. Allen v. Gibson, 25 Va. (4 Rand.) 468, 473 (1826). The validity of the plaintiff’s right of possession is an issue that, when disputed, must be determined in the adjudication of the unlawful detainer action. Id. at 474. The plaintiff must show either (1) prior actual possession, which was then yielded to the defendant under some temporary or defeasible estate that has ended, or (2) a right of possession acquired after the defendant’s entry. Id. at 474-76.

Whether the plaintiff has a right of possession will not always present a question of title. Such a question will never arise in the first class of cases, where the plaintiff’s right is based on prior actual possession. For example, a landlord may bring an action for unlawful detainer against a tenant who holds possession of the leased premises in violation of the lease or after it has expired. In such cases, the defendant’s possession is derivative of the plaintiff’s title, and the defendant is not permitted to challenge it. [e.s.]

Emerick v. Tavener, 50 Va. (9 Gratt.) 220, 223 (1852). However, a plaintiff in the second class of cases, who claims a right of possession acquired after the defendant’s original, lawful entry, must show the validity of that right. When the plaintiff’s after-acquired right of possession is based on a claim of title, the plaintiff may be required to establish the validity of that title. Corbett v. Nutt, 59 Va. (18 Gratt.) 624, 648 (1868).2 Actions for unlawful detainer in the foreclosure context generally fall into this category. [e.s.]

Where the right of possession depends solely upon a claim of title, the question of whether that title is valid is a threshold question in an unlawful detainer action. While a court’s resolution of that question in an unlawful detainer action may not, by statute, be preclusive in actions for ejectment or to quiet title, the court trying the unlawful detainer action nevertheless must weigh the parties’ competing arguments about validity to determine whether a plaintiff’s prima facie right of possession evidenced by a trustee’s deed has been rebutted by the defendant. [e.s.]

In most foreclosure cases, a trustee’s deed will satisfy the foreclosure purchaser’s burden to establish that it acquired a right of possession after the homeowner’s original, lawful entry, and the homeowner will have no good-faith basis to contest it. However, in limited circumstances, the homeowner could allege facts sufficient to place the validity of the trustee’s deed in doubt. In such cases, the general district court’s lack of subject matter jurisdiction to try title supersedes its subject matter jurisdiction to try unlawful detainer and the court must dismiss the case without prejudice. Warwick, 56 Va. (15 Gratt.) at 542 (“[O]n being convinced that the case involves a bona fide claim of title to real estate,” a court not of record “is bound to dismiss [the proceeding] immediately.”).

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Utah Judge Voids Foreclosure Sale — It Never Happened

Posted on November 11, 2014 by Neil Garfield

For more information or assistance please call 520-405-1688 or 954-494-6000

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see http://www.kcsg.com/view/full_story/25831345/article-Utah-Homeowner-Wins-Lawsuit-Against-Bank-of-America-in-Illegal-Foreclosure-Action?instance=more_local_news1

see Judges Order at

Click to access JC9H_Decision_and_Order_140500067.pdf

This case shows how Recontrust — an entity created and controlled by Bank of America — goes down in flames AFTER the sale of the property. The Judge found that Reconstrust was not a proper “substitute trustee” and in my opinion neither are any of the other “substitute trustees” in the context of loans subject to false claims of securitization.

The case is a direct instruction to do what I have been advocating for years. If you think you have a meritorious defense or attack on the foreclosure, deny the implied claims, and plead and prove that your objection is not based upon procedural irregularities, but rather on the fact that the party seeking to sell or foreclose the property never had any right to appear must less enforce anything involved in the loan.

In this case the status was that the sale had already occurred and Recontrust was seeking the usual eviction. The Judge, separating the chafe from reality simply said that Recontrust had no rights whatsoever and that the eviction would not occur (judgment entered for homeowner) and that the reason why the homeowners wins is that the foreclosure sale was void ab initio.

The lesson is that if you are going to try to split hairs you are at best headed for a continuance so that there is an appearance of due process. But if you really want to win, then you need to learn something about securitization — the concept, the written documents and the actions by parties claiming rights under self-serving documents that are completely false.

Filed under: foreclosure | Tagged: , , | 10 Comments »

Possible Counter-Attack in Unlawful Detainer (Eviction) in Fraudulent Foreclosure Cases

Posted on July 18, 2011 by Neil Garfield

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factual issues for Unlawful Detainer case NFG 7-15-11

Various states have two levels of  jurisdiction that make it difficult to raise the proper issues in eviction even if there has been no preceding judicial action or if the preceding judicial action has been predicated on fraudulent evidence proffered and accepted by the court.

I ended up working on the issue and it turns out that the “summary proceedings” do not preclude a trial and do not even preclude the need for a jury trial — both of which the pretenders wish to avoid at all costs. Courts are split on this but most of them are coming around tot he view that the mere presence in court of the attorney for the “title holder” is not sufficient for a writ of possession unless of course the homeowner doesn’t show up or doesn’t object.

There is also a split between the content of statutes and the content of the rules of procedure. One is passed by the legislature which is of dubious validity and the other by the Supreme Court of the State which of course is the body (under the separation of powers required by the constitution) that sets procedure in the courts. Most agree that that the situation is not nearly as cut and dry as the Banks would like you to believe.

They say that the usual oral motion for “Judgment on the Pleadings” or “entry of the Order requested” is to be treated as though it were a motion for summary judgment. That means that the motion cannot be granted and there must be a trial unless there are no material factual issues in dispute.

Virtually all courts agree that a motion for summary judgment should rarely be granted. The only time it is affirmed on appeal is if the other side doesn’t show up, fails to object or does not present any issue, even a denial, of factual issues alleged by the party seeking affirmative relief. Toward that end I have complied a list of issues that are present in these securitized robo-signed loans that would lead to trial and thus gain a tactical and real advantage over the pretender lender even though they thought they had already won (special thanks to pro se litigant Darrell Blomberg in Phoenix for his excellent work and analysis of the trustee sale — I used his work extensively in preparing this):

Plaintiff alleges it is the owner of the property by virtue of a sale conducted by a substitute trustee in which it submitted a credit bid that was accepted by the substitute trustee, and where the substitute  trustee issued a trustee deed upon sale.

  1. Defendant denies Plaintiff is or ever was the owner of the Property. Defendant affirmatively asserts that the documents proffered and actions of the parties are in fact part of a criminal joint venture in which Defendant was the victim.[1]
  2. Defendant denies that the plaintiff and/or its agents have ever disclosed the true beneficiary (creditor entitled to offer a credit bid in the auction of foreclosed property) on any document or in any other media, oral or written in violation of Arizona Statutes. [2]
  3. Defendant denies the validity of the deed of trust because of the absence of a beneficiary causing a fatal defect in the instrument. [3]
  4. Defendant denies Plaintiff has any legal right to possession.
  5. Defendant denies that a substitute trustee was ever appointed by any person or entity authorized to do so.[4]

[1] A.R.S. § 39-161, states, “A person who acknowledges, certifies, notarizes, procures or offers to be filed, registered or recorded in a public office in this state an instrument he knows to be false or forged, which, if genuine, could be filed, registered or recorded under any law of this state or the United States, or in compliance with established procedure is guilty of a class 6 felony.”

[2] A.R.S. § 33-404(B) states, “… a grantor who holds title to the property as a trustee, whether or not such capacity is identified on the document through which title was acquired, shall also disclose the names and addresses of the beneficiaries for whom the grantor held title to the property AND…”  Additionally, CAL-WESTERN RECONVEYANCE CORPORATION was never appointed as a trustee by an authentic and authorized party, it has neither capacity to effectuate said transaction nor any protections under Title 33, Chapter 6.1 for its egregious actions.  As the beneficiary was not disclosed on the Trustee’s Deed Upon Sale and the alleged trustee operated without authority, the instrument is void and of no force and effect.

[3] MERS (Mortgage Electronic Registration Systems, Inc.) is designated as the “Beneficiary” in the Deed of Trust.  For MERS to be a “Beneficiary” is a factual impossibility.  MERS states on its own homepage, www.MERSinc.org, “MERS is an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked.”  MERS is strictly a process with a database; it cannot meet the statutory definition (A.R.S. § 33-801) of a “Beneficiary.”  A process is merely a methodology and a database is a compilation of information and it cannot be a “Beneficiary” as it cannot receive payments nor can it ever hold title to an instrument pertaining to real property or the real property itself.  The process elaborating how “mortgage ownership and servicing rights are originated, sold and tracked” does not create statutory status as a Beneficiary.  The Beneficiary cited in the Notice of Trustee’s Sale never received an authorization from an original Beneficiary as there never was a statutorily compliant Beneficiary in the Deed of Trust.  Since there was never a Beneficiary established in the Deed of Trust, the Deed of Trust is void and of no force and effect.  The indicated Beneficiary has no authorization to initiate a “power of sale” against the property. It is possible that a mortgage could be construed to exist, but that would require judicial foreclosure instead of non-judicial private sale.

[4] A valid Substitution of Trustee has never been made by a beneficiary with authority to appoint a successor trustee pursuant to A.R.S. § 33-804 (B) which states, “The beneficiary may at any time remove a trustee for any reason or cause and appoint a successor trustee, and such appointment shall constitute a substitution of trustee.”  The recorded Substitution of Trustee fails to meet the requirements of A.R.S. § 33-804 (D) in that no document has ever been acknowledged that substitutes or appoints a trustee by an authorized Beneficiary or its agent.  A.R.S. § 33-420 (C), states, “A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.”  A valid Substitution of Trustee to CAL-WESTERN RECONVEYANCE CORPORATION has never been made in accord with any contractual provision, Arizona statute or court action.  Therefore, the Notice of Trustee’s Sale is void as the cited Trustee has never been authorized to exercise a “power of sale” against the property.

  1. Defendant denies that the original trustee ever resigned or was replaced.
  2. Defendant denies that any substitute trustee ever became the successor to the original trustee.
  3. Defendant denies that any consideration was ever tendered at the auction of the property.
  4. Defendant denies that the Trustee’s deed upon sale was in fact a valid deed or the result of a valid sale.[1]
  5. Defendant denies that a bona fide sale took place in which the property was sold for value.
  6. Defendant denies that a bona fide sale took place in accordance with strict adherence to Arizona statutes.[2]
  7. Defendant denies that U.S. Bank acquired title to the subject property in any capacity, trustee or otherwise.[3]
  8. Defendant denies that Plaintiff has, in good faith or otherwise, ever acquired the right to sell the subject property or seek possession thereof.

[1] The Trustors named in the Notice of Trustee’s Sale are not the same as the original Trustors named in the Deed of Trust.  If you were to exercise a power of sale, as you have, for this property, you have forever caused a defect in the chain of title to the real property.

[2] A.R.S. § 33-808 (A) (3), states that the property shall be posted with a copy of the Notice of Trustee’s Sale.  The property has never been posted with a copy of the Notice of Trustee’s Sale.

A.R.S. § 33-808 (A) (4), states that there shall be published a written notice of the Notice of Trustee’s Sale.   No proof exists that such publishing took place in a “Newspaper of General Circulation” as required.

[3] The Trustee’s Deed Upon Sale indicates that the property was “sold” to US BANK NATIONAL ASSOCOCIATION AS TRUSTEE RELATING TO CHEVY CHASE FUNDING LLC MORTGAGE BACKEDCERTIFICATES SERIES 2006-04 by trustee CAL-WESTERN RECONVEYANCE CORPORATION on behalf of “Beneficiary” MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. (as cited in the Notice of Trustee’s Sale) on 2010-05-10 for the amount of $91,947.15.  This is impossibility as no funds have ever been tendered pursuant to this transaction.  Since the grantee acquired the property for no value as described in A.R.S. § 33-404(F) it does not enjoy an exemption from disclosing the beneficiary as required by A.R.S. § 33-404(B).  A.R.S. § 33-404(B) states, “… a grantor who holds title to the property as a trustee, whether or not such capacity is identified on the document through which title was acquired, shall also disclose the names and addresses of the beneficiaries for whom the grantor held title to the property AND…”  Additionally, CAL-WESTERN RECONVEYANCE CORPORATION was never appointed as a trustee by an authentic and authorized party, it has neither capacity to effectuate said transaction nor any protections under Title 33, Chapter 6.1 for its egregious actions.  As the beneficiary was not disclosed on the Trustee’s Deed Upon Sale and the alleged trustee operated without authority, the instrument is void and of no force and effect.

  1. Defendant denies that Defendant ever agreed to the sale of the property by Cal Western, Chevy Chase et al except in accordance with the terms of the deed of trust.
  2. Defendant denies that MERS was legally and factually qualified to be a beneficiary under the Deed of Trust.
  3. Defendant denies that Chevy Chase was in fact the lender or creditor when the  loan was originated.
  4. Defendant denies that the Deed of Trust, Promissory note and other closing documents accurately memorialized the closing of the loan between Defendant and John Does 1-100 who are now known to be unidentified investors who advanced money to Chevy Chase which acted as a mortgage broker.
  5. Defendant denies that the obligation is secured.
  6. Defendant denies that the obligation was in fact securitized but admits that the money trail shows that the party treated the loan as securitized without Defendant’s knowledge or consent.
  7. Defendant denies that MERS ever executed any document in connection with the subject property.
  8. Defendant denies that Cal Western was ever legally in the chain of title as per the title registry in county records, in that the use of Cal Western was a self serving unauthorized act committed under pretense of being a creditor.
  9. Defendant denies that Cal Western was ever substituted for the original trustee.

10. Defendant denies that Cal Western ever received tender of (1) the alleged note from Defendant or (2) cash in exchange for the issuance of a deed or (3) any other consideration for the issuance of a deed in that Cal Western was a willing and intentional partner in a fraudulent joint venture with Chevy Chase et al to issue fraudulent notices of default, fraudulent notices of sale, and conduct fraudulent auctions in which deeds were issued without sale.

11. Defendant denies that Cal Western had any authority to sell Defendant’s property.

12. Defendant denies that Cal Western had any authority to issue a deed to anyone for the subject property.

13. Defendant affirmatively states that the original deed

14. Defendant affirmatively states that the documents upon which Plaintiff relies are forged fabricated instruments without authority or consent from the parties named in those instruments all of which were produced in a process now well-known nationally as robo-signing, in which clerical people with no knowledge or authority relating to any of the transactions or status of files, execute documents as instructed on behalf of people they have never met who purport to have authority to sign documents on behalf of entities with whom neither the robo-signer nor the person named have any authority.

15. Defendant affirmatively asserts that the deed executed by Cal Western was neither a trustee deed nor a valid deed of any kind and transferred no rights, title or interest to the subject property.

23. Defendant affirmatively asserts that the Cal Western deed was a Wild Deed in accordance with industry standards governing the examination of title and the issuance of title insurance, to wit: Cal Western was outside of the chain of title as per the title registry except for fabricated, forged instruments that were created as part of a fraudulent scheme.

24. Defendant affirmatively states that Plaintiff and its agents, servants and employees, each of whom was fully aware of the fraudulent nature of the present claim for possession and title is liable for each proffer and each document  relied upon in furtherance of their fraudulent scheme. The amount of liability is $5,000 or treble damages for each such act.[1]

[1] A.R.S. § 33-420 (A), states, “A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.”

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , | 13 Comments »

How to Get Into Rental Program: After the Fat Lady Sings

Posted on December 6, 2009 by Neil Garfield

Thank you June Reyno and Poppa Koppa for this Post

There is a myth going around that once the eviction and unlawful detainer are completed, and after the Sheriff has thrown you out of your own home, there is nothing else you can besides try to rent the property. Not So! There are numerous ways of turning everything back around, placing you back in your own house and vacating the foreclosure sale, the unlawful detainer and the writ of possession. Some of them involveFannie Mae renting the house, but we come back to the issue rent from whom? If they fraudulently obtained title and now wish to charge rent which they will keep for themselves why should you be paying them? The answer is very simple: if that is the only way to stay in your house without the sheriff at your door, you do what you must.

Keep in mind that you should invoke these procedures, but don’t say within the lines they painted on the highway. Demand documents to prove that the party wishing to have a rental relationship with you is in fact the proper party to do it. Why? Because you don’t want to have paid all that money to the wrong person. And you don’t want some new party whom you never heard of saying that now they own the property and the rental deal was void because they always owned the property since the foreclosure. See the other “How to” articles over the last week and you;ll see what I mean.

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PoppaKoppa sez: Let’s tell it straight!

The Wall Street pretender lenders, prankster banksters and squishy beneficiary Trusts unlawfully discount your original note when they do an untitled transfer of your property at a sham foreclosure auction that extracts an unnecessary 20% from home equities, THEY are made whole by pay offs on Credit Default Swaps, re-insurance from a Quasi government entity, and/or rapid re-sale of Your American Dream @ 50% of the NOD amount owed.
They blame YOU for failing to meet obligations THEY established. After inflicting untold emotional and financial harm, wearing down your Main Street Spirit, they ask you to say “THANK YOU, SIR!” when swoon goons will hand you back the keys to your own home!
Some folks call the past two years a period of necessary social change (socialism). I call it unjust transfer of wealth, demise of capitalism, and “Tyranny on The Courthouse Steps!” The Mass Media and Talking Heads will applaud this program as a Sigh of Relief for American Society… NAHJ supporters and Forty Percent of homes still in distress should see TEARS falling from The Statue of Liberty!

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U.S. offers rental programs to foreclosed homeowners
Is renting your home an option after foreclosure?

By Amy E. Buttell, Cyberhomes Contributor

Published: December 4, 2009

Programs offered by Freddie Mac and Fannie Mae give homeowners the option to remain in their foreclosed home as renters. (Photo: Rich Pedroncelli/Associated Press)
If you’ve received a foreclosure notice or are in imminent danger of foreclosure and your mortgage is owned by government agencies Fannie Mae or Freddie Mac, you may be able to rent your home (or former home) at an affordable rate.
Fannie Mae’s Deed for Lease Program, begun in November 2009, and Freddie Mac’s REO Rental Option program, started in January 2009, aim to keep more homeowners in their homes, even if they no longer own them. Below are the three most common questions homeowners are asking about the rental programs.
What do I need to do to participate in a foreclosure rental program?
First, you need to figure out if Fannie Mae or Freddie Mac owns your mortgage, says Ryan Boyajian, president of We Save Homes Inc., a publicly traded company that assists homeowners with loan modifications and short sales. You can find out here:
Freddie Mac Fannie Mae
While some banks and finance companies that own mortgages are offering similar programs, only mortgages owned by Fannie Mae and Freddie Mac are eligible for these two programs.
What are the qualifications?
They include:

* Your income must be sufficient to make rental payments.
* The property must be in good condition.
* For Fannie Mae-owned properties, second mortgage liens aren’t eligible and subordinate liens must be released. You must surrender your mortgage deed (known as a deed-in-lieu of foreclosure). You also cannot be involved in an active bankruptcy proceeding. Homeowners who are current on their mortgage payments aren’t eligible.
* Under the Freddie Mac program, foreclosure must have already been completed, meaning you weren’t eligible for a loan modification.
* The home must be your primary residence.
* If you are a tenant of a Freddie Mac or Fannie Mae homeowner, you are also eligible for these programs.

What are the terms of the rental, if I qualify?
The terms vary. Rents, especially in areas hard hit by home prices declines, will be at regional fair market value rates, which are likely to be significantly lower than most borrowers’ payments, says Andrew Housser, co-CEO of Freedom Debt Relief, a San Mateo, Calif.-based company that helps consumers settle their debts. In other words, “your rent payment will never be more than 31 percent of your income, but that amount must equal or exceed the fair market rent in your area for your type of home,” says Boyajian.

Under the Freddie Mac program, the rental is month-to-month, so if your house is sold under foreclosure to a new owner, you will have to leave at the end of the month. The Fannie Mae program provides greater stability, as the leases are 12-months, and your home will not be put up for sale during that time.

The time period to complete the lease agreement varies, but Fannie Mae expects its property managers to approve the rental application and complete the deal within 10 days, says Mia Melle, broker and president of operations at Renttoday.us, a Southern California property manager. She urges homeowners to respond quickly to a rental offer. “They have 72 hours to respond,” she says. “If they don’t, the offer will be rescinded.” Under this program, Fannie Mae may decide to extend leases for another year or continue the arrangement on a month-to-month basis.

CHARLES J. KOPPA, Realtor/Loan Officer/Investor/Grandfather, 760-787-9966 & the National Alliance of Homeowners for Justice dba: HELPING FAMILIES SAVE THEIR HOMES FOUNDATION

“Looking for Homeowner Volunteers Across America to Rescue Homeless Families That Have Lost Their Homes to Foreclosure” Call: 1-888-899-8915 / 909-795-4046
858-361-2399

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , | 5 Comments »

How To Stop Foreclosure

Posted on December 3, 2009 by Neil Garfield

see how-to-negotiate-a-short-sale

see how-to-negotiate-a-modification

See Template-Lawsuit-STOP-foreclosure-TILA-Mortgage-Fraud-predatory-lending-Set-Aside-Illegal-Trustee-Sale-Civil-Rico-Etc Includes QUIET TITLE and MOST FEDERAL STATUTES — CALIFORNIA COMPLAINT

See how-to-buy-a-foreclosed-house-its-a-business-its-an-opportunity-its-a-risk

This is general information and assumes that you have access to the rest of the material on the blog. Foreclosures come in various flavors.

First of all you have non-judicial and judicial foreclosure states. Non-judicial basically means that instead of signing a conventional mortgage and note, you signed a document that says you give up your right to a judicial proceeding. So the pretender lender or lender simply instructs the Trustee to sell the property, giving you some notice. Of course the question of who is the lender, what is a beneficiary under a deed of trust, what is a creditor and who owns the loan NOW (if anyone) are all issues that come into play in litigation.

In a non-judicial state you generally are required to bring the matter to court by filing a lawsuit. In states like California, the foreclosers usually do an end run around you by filing an unlawful detainer as soon as they can in a court of lower jurisdiction which by law cannot hear your claims regarding the illegality of the mortgage or foreclosure.

In a judicial state the forecloser must be the one who files suit and you have considerably more power to resist the attempt to foreclose.

Then you have stages:

STAGE 1: No notice of default has been sent.

In this case you want to get a forensic analysis that is as complete as humanly possible — TILA, RESPA, securitization, title, chain of custody, predatory loan practices, fraud, fabricated documents, forged documents etc. I call this the FOUR WALL ANALYSIS, meaning they have no way to get out of the mess they created. Then you want a QWR (Qualified Written Request) and DVL (Debt Validation Letter along with complaints to various Federal and State agencies. If they fail to respond or fail to answer your questions you file a suit against the party who received the QWR, the party who originated the loan (even if they are out of business), and John Does 1-1000 being the owners of mortgage backed bonds that are evidence of the investors ownership in the pool of mortgages, of which yours is one. The suit is simple — it seeks to stop the servicer from receiving any payments, install a receiver over the servicer’s accounts, order them to answer the simple question “Who is my creditor and how do I get a full accounting FROM THE CREDITOR? Alternative counts would be quiet title and damages under TILA, RESPA, SEC, etc.

Tactically you want to present the forensic declaration and simply say that you have retained an expert witness who states in his declaration that the creditor does not include any of the parties disclosed to you thus far. This [prevents you from satisfying the Federal mandate to attempt modification or settlement of the loan. You’ve asked (QWR and DVL) and they won’t tell. DON’T GET INTO INTRICATE ARGUMENTS CONCERNING SECURITIZATION UNTIL IT IS NECESSARY TO DO SO WHICH SHOULD BE AFTER A FEW HEARINGS ON MOTIONS TO COMPEL THEM TO ANSWER.

IN OTHER WORDS YOU ARE SIMPLY TELLING THE JUDGE THAT YOUR EXPERT HAS PRESENTED FACTS AND OPINION THAT CONTRADICT AND VARY FROM THE REPRESENTATIONS OF COUNSEL AND THE PARTIES WHO HAVE BEEN DISCLOSED TO YOU THUS FAR.

YOU WANT TO KNOW WHO THE OTHER PARTIES ARE, IF ANY, AND WHAT MONEY EXCHANGED HANDS WITH RESPECT TO YOUR LOAN. YOU WANT EVIDENCE, NOT REPRESENTATIONS OF COUNSEL. YOU WANT DISCOVERY OR AN ORDER TO ANSWER THE QWR OR DVL. YOU WANT AN EVIDENTIARY HEARING IF IT IS NECESSARY.

Avoid legal argument and go straight for discovery saying that you want to be able to approach the creditor, whoever it is, and in order to do that you have a Federal Statutory right (RESPA) to the name of a person, a telephone number and an address of the creditor — i.e., the one who is now minus money as a result of the funding of the loan. You’ve asked, they won’t answer.

Contemporaneously you want to get a temporary restraining order preventing them from taking any further action with respect to transferring, executing documents, transferring money, or collecting money until they have satisfied your demand for information and you have certified compliance with the court. Depending upon your circumstances you can offer to tender the monthly payment into the court registry or simply leave that out.

You can also file a bankruptcy petition especially if you are delinquent in payments or are about to become delinquent.

STAGE 2: Notice of Default Received

Believe it or not this is where the errors begin by the pretender lenders. You want to challenge authority, authenticity, the amount claimed due, the signatory, the notary, the loan number and anything else that is appropriate. Then go back to stage 1 and follow that track. In order to effectively do this you need to have that forensic analysis and I don’t mean the TILA Audit that is offered by so many companies using off the shelf software. You could probably buy the software yourself for less money than you pay those companies. I emphasize again that you need a FOUR WALL ANALYSIS.

Stage 3 Non-Judicial State, Notice of Sale received:

State statutes usually give you a tiny window of opportunity to contest the sale and the statute usually contains exact provisions on how you can do that or else your objection doesn’t count. At this point you need to secure the services of competent, knowledgeable, experienced legal counsel — professionals who have been fighting with these pretender lenders for a while. Anything less and you are likely to be sorely disappointed unless you landed, by luck of the draw, one of the increasing number of judges you are demonstrating their understanding and anger at this fraud.

Stage 4: Judicial State: Served with Process:

You must answer usually within 20 days. Failure to do so, along with your affirmative defenses and counterclaims, could result in a default followed by a default judgment followed by a Final Judgment of Foreclosure. See above steps.

Stage 5: Sale already occurred

You obviously need to reverse that situation. Usually the allegation is that the sale should be vacated because of fraud on the court (judicial) or fraudulent abuse of non-judicial process. This is a motion or Petitioner but it must be accompanied by a lawsuit, properly served and noticed to the other side. You probably need to name the purchaser at sale, and ask for a TRO  (Temporary Restraining Order) that stops them from moving the property or the money around any further until your questions are answered (see above). At the risk of sounding like a broken record, you need a good forensic analyst and a good lawyer.

Stage 6: Eviction (Unlawful Detainer Filed or Judgment entered:

Same as Stage 5.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , | 23 Comments »

Federal Courts Provide Foreclosure Victim A Stay from Eviction! L.A. Homeowner refuses to yield claiming Unlawful Foreclosure!

Posted on February 12, 2009 by Neil Garfield

Federal Courts Provide Foreclosure Victim A Stay from Eviction! L.A. Homeowner refuses to yield claiming Unlawful Foreclosure!

By M Soliman
Submitted by Keith Bloom

A Los Angeles Federal Court heard early arguments by plaintiff’s counsel for a temporary restraining order (TRO) in a suit filed against the lender and defendant Deutsche Bank in an unlawful detainer.

February 10, 2009 / http://www.borrowerhotline.com; Los Angeles, California – A Los Angeles Federal Court has agreed to hear the matter of a wrongful foreclosure in the case of Russell v. Deutsche Bank et al. The news is according to Maher Soliman a Juris Pro™ expert witness and case development analyst to counsel. In reviewing the matter the presiding judge agreed to the request by counsel to issue a TRO after taking the complaint and request for an injunction under consideration.

It’s noteworthy to cite how the defendant in the state UD case attacked the banks standing at the superior court level, and having lost, has now found new life in the federal courts. The federal court heard arguments for overturning the lenders recovery efforts in a foreclosure under the state’s power of sale provision. According to Soliman, “the borrowers file made no sense where audits showed errors, omissions and instances of negligent acceptance. The analysis considered the transfer of interest in the collateral questionable throughout the foreclosure. It is still unclear as to the parties standing and who the holder in due course in the foreclosure is”.

The next step is a hearing and early arguments for issuing an indefinite injunction pending the trial. Counsel for the plaintiff is J Barfield-McCarren. According to information received at press time the temporary restraining order will remain unopposed by the defendant’s in this matter.

MSoliman

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, MODIFICATION, Mortgage, securities fraud | Tagged: , , , , , | 16 Comments »

From FAQ: I have received a five day notice. Do I have to leave?

Posted on September 12, 2008 by Neil Garfield

QUESTION: I have received a five day notice. Do I have to leave?

ANSWER: Technically the answer would be yes, you are being ordered to leave. As a practical matter however, there are several procedural steps that the Trustee or “lender” must take before they can actually remove you from the premises. And of course in most cases, it is my belief that the Trustee or “lender” doesn’t have the authority to tell you to leave because they didn’t have the authority to foreclose your property in the first place. I have seen people delay the process for many months by entering into negotiations for cash for keys, or some other deal. Also there are filings you can make in court contesting the unlawful detainer or eviction action which might include an emergency petition to stay the proceedings because the sale of your property was improper, a sham, and constituted theft of your property (because the lender had already been paid by a third party, etc.). Motions for stay are not usually granted unless you also file an actual claim against the Trustee or lender for your TILA and other claims.

You might be faced with a demand for bond, which sometimes is zero and sometimes is as much as $10,000, but upon payment of a fee you can possibly make arrangements with a fidelity bond company to put the money up.

And there is always the bankruptcy route which if done properly, might challenge the Trustee or lender very effectively, particularly if you show the house as YOUR asset, based upon a disputed claim (and therefore of unknown value) and you show the “lender” has an unsecured creditor for an unliquidated amount that is in dispute.

Filed under: Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: , , , , | 1 Comment »

Legal Aid Lawyer WINS after Sale!! One small step…..VICTORY in California

Posted on August 26, 2008 by Neil Garfield
What is amazing about this win, is that it took place long after sale, long after evictions proceedings had been tried and tried again. Good Going Legal Aid!
Hello Neil,
Per our conversation yesterday, I just wanted to let you know that I won my court case today for the Unlawful Detainer against me. My Legal Aid attorney argued that they recorded the deed after the Notice to Vacate, when it should have been the other way around. My attorney came well-prepared, and argued the case quite well. The attorney for the lender on the other hand didn’t come prepared to go to trail. He met with my attorney out in the corridor prior to the hearing, and basically barked out at her “why are we even here??” He offered my attorney a deal, in as much as “a decent amount of time for me to move out”. Plus … he was willing to drop the monetary damages against me. Apparently, they’re seeking $50 per day since the date they’ve “owned” the property. I have to admit, it was somewhat tempting to just take the deal and get this whole nightmare over with. But my gut told me to go to trial. Win or lose, I’d rather go down fighting.
And if it weren’t for you, I’d never have gotten this far. Had it not been for your relentless work on the mortgage meltdown crisis, I’d never have known what was really going on behind the scenes. For example, in my case GMAC is the one to whom I’d been paying my mortgage, and they’re the ones who foreclosed on me. They were also the ones who bought it back at auction, or so I thought. New York Bank is the one who’s trying to evict me, and it’s their name now on the title. My attorney told me that GMAC was simply the “service provider” for New York Bank all along. Now … I’d never heard any mention of this entity before now. Correct me if I’m wrong, but I’d take them to be the proverbial undisclosed third party.
So if nothing else, I just bought myself another 6 to 8 weeks here. They now have to go back and file another Unlawful Detainer, serve me with papers [I won’t make it so easy on them this time]. Plus, I’d file another Answer Form giving me another court date, which in itself took several weeks. I filed my Answer on July 10th, and the hearing wasn’t until today. So I’d say I’d have until about the end of October at this point, if the same timeframe applies to the next round. I’m sure they’ll try to expedite it a bit this time, in fact I’m sure they probably filed it at the courthouse right after the trial.
I was also fortunate, in that the judge seemed like a very nice guy. He wasn’t some old grump, but a younger guy. He really dug in and researched things on his computer, read briefs and cases handed to him by both sides, etc. It really was a fascinating process to observe, perhaps had I not been the one on trial. But if nothing else, it’s costing them money to pay for their attorneys, and to file the Detainer again. I wish I could take credit for today, except that I just sat there like a statue next to my attorney, sitting up straight with my hands politely folded on the table. I didn’t have to say one word the whole time, except for sincerely thanking my attorney afterwards.
I know this isn’t over, but I did win this round. And so now, I will gladly come up to your seminar next week. As you said yesterday, perhaps there’s more we can do now with the additional time. If I can get an attorney better-versed in TILA and such, otherwise I’ll do my best to learn how to defend myself pro se. But in any case, I want to sincerely thank you as well, for all your ongoing help and guidance. Not just to me, but to all the others out there whom you’ve helped thus far. I’ve come to know a few of the posters from your blog, and it never hurts to know someone in your same situation.
Anyway … thank you again, Neil. And I look forward to meeting you next week up in Santa Monica.
Steve Cisko

Filed under: CDO, currency, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: , , | 4 Comments »

Foreclosure Defense: Objecting to Trustee sale

Posted on August 20, 2008 by Neil Garfield

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Letter of Objection to Trustee in Non-Judicial Sale States

SEE three-day-rescission-three-year-rescission-and-general-rescission


NOTE: THERE ARE ACTUALLY THREE LETTERS OF OBJECTION AND RESCISSION THAT COULD BE SENT: (1) THREE DAY NOTICE OF RESCISSION, (2) THREE YEAR NOTICE OF RESCISSION AND (3) GENERAL CLAIMS NOTICE OF RESCISSION OR NULLIFICATION. IN ALL CASES, THE NOTICE SHOULD CONFORM TO STATE LAW AS TO FROM, SUBSTANCE AND METHOD OF MAILING. GENERALLY IT SHOULD BE SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED. IN ADDITION, A FILING OF LIS PENDENS OR NOTICE OF PENDENCY TOGETHER WITH YOUR NOTICES AS ATTACHMENTS WOULD GUM UP THE WORKS ON THE PROPOSED SALE AND PROBABLY FORCE THE ACTION TO CONVERSION FROM NON-JUDICIAL SALE TO JUDICIAL SALE. THE ADVANTAGE IN CONVERTING TO JUDICIAL SALE IS THAT THE TRUSTEE OR “LENDER” MUST FILE A COMPLAINT AND ALLEGE THINGS THAT WILL EXPOSE THEM TO LIABILITY BECAUSE THE ALLEGATIONS ARE NOT TRUE. IT KEEPS THE BURDEN WHERE IT BELONGS — ON THE LENDER.
The Trustee has an obligation of fair dealing with both the borrower and the lender. All to often the Trustee’s loyalties follow the money, for it is the Lender that pays the bills. A Notice of Non-Judicial sale is very much like a Motion for Summary Judgment in Judicial Foreclosure States. It is designed to take the case off the docket and the get the sale over with as little trouble as possible — where the facts are not in dispute, the borrower is in default, the lender has followed all the necessary procedures, and the Lender is in fact collecting on a debt that is owed. The Lender, by having the property sold is recovering part or all of the debt owed to the lender.

In the Mortgage Meltdown context however, everything is turned on its head for mortgages originated between 2001-2008. The Lender has already been paid, doesn’t won the note and is attempting to score a windfall by getting the property in addition to the money it received from the REAL source of the financing. And the Lender has received an undisclosed fee of around 2.5% of the total “loan.” The mortgage broker, the appraiser and other participants were also overpaid by as much as seven or eight times their normal fees to keep their mouths shut. The borrower’s reliance on the good faith of these people was misplaced.

Thus when a property owner receives a notice of delinquency, notice of default or notice of sale, the borrower should write a letter that says something along these lines (subject to checking the verbiage with local counsel):

Dear Trustee:

I am in receipt of (fill in the notice you have received) dated (fill in the date). I hereby object to the Notice. I hereby give notice that as Trustee, you have an obligation not only to whom you perceive as the lender, but to perform due diligence as to the status of the note and the true owner of the note and the true party in interest who might be entitled to enforce the note or mortgage. Based upon my information, you already had notice of the fact that the true lender was undisclosed at the time of the loan closing, and therefore breached your fiduciary duty to me and all other parties affected and/or committed acts of negligence, gross negligence or malpractice such that you are presently liable for civil remedies for attempted conversion, fraud, civil theft, and usury. Under State Law you are obligated to file either a judicial foreclosure procedure procedure, a petition for declaratory relief and/or an interpleader.

I hereby request that you send a copy of this letter to your insurance carrier, the title insurance carrier and all other interested parties as described herein for the following reasons:

  • There is no delinquency or default. The Lender has been paid in full plus a fee for standing in for an undisclosed third party lender that was not properly registered or regulated as a financial institution or lender at the time the transaction took place. IN ADDITION I HEREBY EXERCISE MY RIGHTS TO RESCIND THE LOAN TRANSACTION IN ITS ENTIRETY UNDER THE THREE DAY RULE, THE THREE YEAR LIMITATION, AND UNDER THE USURY AND GENERAL CLAIMS THEORIES AND CAUSES OF ACTION. BY FAILING TO DISCLOSE THE TRUE LENDER AND USING SUBTERFUGE TO HIDE THE FACT THAT THE “LENDER” AT CLOSING WAS PAID TO POSE AS THE LENDER WHEN IN FACT AN UNDISCLOSED UNREGISTERED THIRD PARTY HAD RENTED THE CHARTER OR LENDING LICENSE OF THE “LENDER”, THE LIMITATIONS ON MY RIGHT TO RESCIND WAS EXTENDED INDEFINITELY. UNDER STATE AND FEDERAL LAW, THE MORTGAGE IS NOW EXTINGUISHED AND YOUR RIGHTS UNDER THE TRUSTEE DEED HAVE TERMINATED.
  1. The Lender has failed to state the name or address of the holder in due course, John Does 1-1000, being the holders of certificates of asset backed securities, which are backed by the security instrument (mortgage) on the subject residential property.
  2. The Lender does not own, possess or control the note or the mortgage,which has been satisfied in full. Demand is herewith made for satisfaction of mortgage to be filed in the appropriate county records.
  3. Your authority as Trustee has also been transferred to the Trustee of the pooled mortgages and/or notes on various properties, real and personal, that were included in an asset pooled that was eventually securitized and sold to investors, who along with others in the chain of securitization acquired rights and obligations to the note, mortgage, and stream of revenue eventually due to the investor.
  4. Because of the known presence of necessary and indispensable parties to any dispute that the true holders in due course might have against me, only a judicial proceeding in which all parties are included will provide a fair determination of the rights, obligation and title to the property, mortgage and note.
  5. The “loan closing” was in fact a scheme to trick me into issuing a negotiable instrument that was pre-sold to investors as an unregulated security. The parties and their fees were not revealed nor was the true APR disclosed, as it was inflated considerably by the intentional overstatement of the appraisal on the property.
  6. The title agent, which might well be the same as the Trustee also has insurance for errors and omissions and the title insurance company that issued the policy will have total liability for this fraudulent transaction to the extent it had knowledge through its agents of the fraudulent scheme.

The totality of the transaction violates numerous state and federal laws including usury, Truth in Lending, deceptive business practices, and administrative standards for the practice of professions.

Therefore, please confirm the filing and recording of the satisfaction of mortgage, send the original note back to me (or tell me where it is), and confirm the retraction of the attempt to collect a debt which is incorrectly stated, improperly computed, improperly obtained, and fraudulently produced and transmitted.

THIS LETTER SHALL NOT BE CONSTRUED AS A WAIVER OR ELECTION OF REMEDIES.

Sincerely,

Filed under: CDO, currency, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: , , , , , | 33 Comments »

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