Author: timothymccandless

I have spent most of my professional life helping people who were being taken advantage of by systems they did not fully understand. As an attorney, I represented consumers against predatory lending practices and worked in elder law protecting seniors from fraud. My family lost $239,145 to identity theft, which became the foundation for my seniorgard.onlime and deepened my commitment to financial education. Since 2008, I have maintained a blog at timothymccandless.wordpress.com providing free financial education. Not behind a paywall. Free, because financial literacy should not cost money. I trade with real money using the exact strategy described in this book. My current positions: Pfizer at $16,480 deployed generating $77,900 per year net. Verizon at $29,260 deployed generating $51,000 per year net. Combined: 293% annualized pace. These are my only active positions. Not cherry-picked.

Possible Counter-Attack in Unlawful Detainer (Eviction) in Fraudulent Foreclosure Cases (via Livinglies's Weblog)

Possible Counter-Attack in Unlawful Detainer (Eviction) in Fraudulent Foreclosure Cases MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE 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 … Read More

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FREE HOUSE MYTH DEBUNKED BY PORTER AND LEVITIN (via Livinglies's Weblog)

FREE HOUSE MYTH DEBUNKED BY PORTER AND LEVITIN MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE The Free House Myth posted by Katie Porter As challenges to whether a "bank" (usually actually a securitized trust) has the right to foreclose because it owns the note and mortgage become more common, rumors swirl about the ability to use such tactics to get a "free house." There are a few instances of consumer getting a free house, see here and here, for examples, but … Read More

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BOA Feeling the Heat is Striking Back at Foreclosure Defense Lawyers as Lawsuits are Filed Against Firms Who Represent BOA (via Livinglies's Weblog)

BOA Feeling the Heat is Striking Back at Foreclosure Defense Lawyers as Lawsuits are Filed Against Firms Who Represent BOA MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: The battle is heating up. BOA, for example, is stepping up efforts to cause as much trouble as possible for those foreclosure defense lawyers who are getting traction in the courts. This started some time ago as some people were actually indicted for using tactics that were essentially the identical to the bogus filings of the pretenders. The indictments … Read More

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Robo-signing continues without consequences (via Livinglies's Weblog)

Robo-signing continues without consequences MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE No Punishment = Continued Misconduct Posted on July 19, 2011 by Mark Stopa Esq. http://www.stayinmyhome.com/blog/?p=1565 In Maine, a group of drug dealers was caught distributing drugs to local middle schoolers. They confessed, yet the District Attorney declined to press charges, so the drug dealers returned to the school and passed out more drugs. In Kansas, police ap … Read More

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Cloud on title forever post foreclosure {but wait the Banks own the title companies}

Recently Discovered Flaw in Recording System Clouds Titles on Previously

Foreclosed Properties

 

The modern system of mortgage refinancing and assignments created during the housing boom has left behind a wave of title defects on properties that have ever had a foreclosure in their history, due to a loophole in the property records recording system. This has been detected on a number of properties currently in foreclosure, and found to have been uncorrected on properties previously foreclosed.

 

(PRWEB) February 10, 2010 — A previously undetected title flaw has been discovered on many previously foreclosed properties. As the number of real estate foreclosures skyrockets, the odds are higher that a home you live in today, or at some point in the future may have had a foreclosure in its history. Even if the foreclosure has long since passed, a loophole in the way mortgages are recorded can create a serious title defect for future owners. Title analysis performed this month by AFX Title has detected this error to be common in random samples of properties it reviewed. “This could affect the property ownership of millions of homes nationwide” said David Pelligrinelli, of AFX Title. “The mortgage recording method which created this title flaw did not exist until

recently. As title abstractors are just seeing this problem emerge now but a wave of title claims is coming over the next year or so.”

 

The problem is created through a break in the chain of mortgage ownership. Until the 1980’s, most mortgages were loans between the homeowner and a bank, who lent the money directly. More recently, the mortgage financing system transformed into an international system of securitization, with mortgage lenders packaging their loans into securities, bought and sold by investors like stocks. These transactions even split individual mortgages into sections, where each loan could have parts owned by different investment banks.

 

The transfer of ownership in these mortgage backed securities (MBS) was done with contracts on the balance sheets of Wall Street investment banks, such as Morgan Stanley and Goldman Sachs. The company who originally appeared to make the loan was normally a retail lending company such as Countrywide or Lending Tree, who typically acted as a sales company, and sometimes remained contracted to service the loan. In the event that the loan goes into foreclosure at a later date, the then-current owner of the loan files the foreclosure and sells the property to a new owner, often at auction. The land records would show a deed of transfer from the investment bank to the new owner. This creates a break in the chain of ownership of the mortgage rights. In many cases, the transfer of ownership of the mortgage loan has gone from the original lender, through several owners, and then to the foreclosing bank, none of which is recorded on the property title history.

 

Technically, the foreclosing bank has no recorded title rights to foreclose in the first place. Owners of the loan normally do not publicly record each of the transfers out of expediency, and cost. Filing a document of transfer (called an assignment) in the land records incurs a substantial fee paid to the county clerk.

 

Some delinquent homeowners have used this error to delay the foreclosure, forcing lenders to “produce the note.” In these cases, the bank has to go through the process of getting assignments to the foreclosing bank after the fact. However, the title repair process is not required however in the majority of cases when the homeowner does not

contest the foreclosure.

 

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This leaves the break in chain of title dormant in the property records, vulnerable to be contested in the future. A few largely overlooked cases have already been decided by courts on this issue. In Lowell MA, a judge invalidated the foreclosure of homes based on missing and out-of-order assignments (US Bank v Ibanez).

 

Unraveling the chain of title and clarifying ownership of loans will create challenges for the courts and legislative bodies in all states. In the meantime, homeowners and buyers should be aware of how this could affect their property title. There are reports that some title insurers are indicating that they will not insure for this title defect.

 

As a national provider of property title searches, AFX Title is seeing an increasing number of files where the chain of title has obvious gaps in the recorded mortgage assignments. According to Pelligrinelli, the issue is serious. “When running searches for clients, we are noticing that a significant number of previously foreclosed properties have unconnected chain of assignments in the mortgage history. This could represent a title defect which could technically affect ownership rights for future owner.”

 

Pelligrinelli adds that some lenders and government institutions are rushing to repair the titles on lender-owned properties as they discover them in their portfolio. This does not help individual owners who own properties previously foreclosed.


 

assingmment please?? 2932.5 with a side of Veal

The brief below as circulated by the California Bar’s: Insolvency Law Committee:
Herrera vs. Deutsche Bank National  Trust Co.,  2011 Westlaw 2547979 (Cal.App.)

 

Facts: A married couple  (“the homeowners”) purchased a home at a foreclosure sale.  Supposedly,  unbeknownst to them, their interest in the home was subject to a prior (and  perhaps unrecorded) deed of trust that never appeared in their title  search.  After a series of assignments, a lending institution conducted  a non-judicial foreclosure sale under that prior unrecorded deed of  trust.  Supposedly, the homeowners never received notice of the sale.  The lender entered a successful credit bid; the trustee issued a trustee’s  deed in favor of the lender.  When the lender later asserted its title,  the homeowners brought suit, seeking to set aside the sale on the ground that  the lender never owned the underlying note or the trust deed and therefore  could not conduct a proper sale.

 

The lender and the trustee brought a motion for summary judgment, claiming  that properly-recorded documents showed that the trust deed had been assigned  to the lender.  The trial court granted summary judgment for the lender.

 

Reasoning:  The appellate  court reversed, holding that the lender had not made a competent evidentiary  showing in opposition to the homeowners’ motion for summary judgment.   The lender argued that the trial court properly took judicial notice of the  recorded assignment.  But the court distinguished between judicial  notice of the recorded document and its contents, holding that the lender  could not show that it was really the beneficiary under that deed of  trust.

 

The lender claimed that a declaration filed by an employee of the trustee had  established the truth of the facts contained in that assignment, which were  thus covered by the “business records” exception to the hearsay  rule.  The court disagreed:  “The records used to generate the  information in the Assignment . . . were undoubtedly records not prepared by [the  trustee] but records prepared by [the lender’s predecessors in interest.]  [The lender has] not shown how [the employee] could have provided information  about the source of that information or how those documents were  prepared.”

 

For the moment, let’s disregard the strange factual predicate, where someone  buys a property subject to an undisclosed deed of trust and gets no notice of  a subsequent foreclosure.  (That doesn’t happen very often.)  The  really alarming part of this opinion is the disqualification of the remote  assignee’s employee as a party who can properly authenticate the business  records that were generated by remote assignors.  If that rule is  universally true, how can the subsequent transferees ever establish a chain  of title, especially where the remote assignors are defunct entities (and  their former employees are scattered to the winds)?  And if that chain  can’t be competently established, does that mean that a homeowner threatened  by foreclosure can now bring a timely action for injunctive relief, on the  theory that the foreclosing creditor lacks the authority to do so? A fortiori, if such a claim can be  brought to overturn a completed sale, it ought to be cognizable in order to  halt a pending sale.

 

Note that the issue in this case (the lack of an evidentiary foundation for  the assignment of the deed of trust) is subtly different from the one in the  Ninth Circuit BAP’s recent opinion in In  re Veal, — B.R. —-, 2011 WL 2304200, (9th Cir. BAP (Ariz.)).   That case dealt with the problem of the assignment of a mortgage without the  assignment of the underlying note.  (For a complete discussion of Veal, see 2011 Comm. Fin. News. 52, Purported Assignee  of Mortgage Lacks Standing to Obtain Relief from Automatic Stay Because  Assignment Transferred Mortgage Without Underlying Note.)

 

More significantly, I think that the holding in Herrera, a California state appellate opinion, may  conflict with or undermine such cases as Ferguson  v. Avelo Mortg., LLC, 2011 WL 2139143 (Cal. App. 2d Dist. 2011),  opinion modified, 2011 WL 2438948 (Cal. App.), and Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th  1149, 121 Cal. Rptr. 3d 819 (4th Dist. 2011), review denied, (May 18, 2011).  (For a discussion of Gomes, see  2011 Comm. Fin. News. 18,  Borrower Cannot File Suit to Determine Whether MERS Has Authority to Commence  Foreclosure, and Trust Deed Expressly Authorized MERS to Do So.)  After  all, if the recorded assignment can no longer be taken at face value under Herrera, how can we simply assume that  the nominal assignee is really the proper party to pursue the foreclosure?

Ask for a 402 hearing and then dissmiss the eviction !!!

If the court follows the rules of evidence (and they do) if proper objections are filed. No eviction of a secuitized loan should ever prevail on an eviction; they cannot produce the foundation to authenticate the Trustees Deed it is based upon preliminary facts that they are unable and unwilling to bring to court. The Assignments Civil code 2932.5 , The Servicer, The Accounting, The Trustee, MERS, The Robo signer, The person that purportedly contacted the Borrower Trustor, The compliance documents with Civil Code 2924, all these are preliminary facts upon which the admission of the Trustees Deed depend Evidence code 400,401,402,403. Check out this motion !!

Timothy L. McCandless, Esq.  (SBN 147715)

LAW OFFICES OF TIMOTHY L. MCCANDLESS

Attorney for Defendant,

SUPERIOR COURT OF CALIFORNIA

IN AND FOR THE COUNTY OF SOLANO

SOLANO COURT/ LIMITED JURISDICTION

FANNIE MAE et al,

Plaintiff,

v.

Defendant.

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)Case No.:

 

DEFENDANT’S IN LIMINE MOTION TO EXCLUDE ALL EVIDENCE (RE:FACIALLY INVALID DEED OF TRUST)

TRIAL DATE:  Tues., June 15, 2010 ) 

To the Court, to Plaintiff FANNIE MAE, and its attorney of record:

            PLEASE TAKE NOTICE that, on Tuesday, June 15, 2010, at 8:30 AM, or as soon thereafter as the matter may be heard, Defendant, MICHELLE CABESAS, will in limine judicii move the court, and hereby does move, for an order excluding from trial all evidence proffered by Plaintiff FANNIE MAE.

          The motion will be heard in Department  26, at 1:30 p.m. in front of the Honorable Judge Davis  of the Solano Court of the above-captioned court.

The motion will be brought pursuant to Evidence Code sections 353 and 400 et seq., Code of Civil Procedure section 430.10(b), and related decisional law.

The ground of the motion will be that the Unlawful Detainer Complaint, together with the publicly-filed “Deed of Trust” that is necessarily incorporated into it, is facially invalid because the  Beneficiary did not have the power of sale. Such irregularities should constitute sufficient grounds to set aside the entire non-judicial foreclosure process. Therefore, the Trustee’s Deed After Sale should not be admitted as no lawful basis exists for its execution. Additionally, the Notice of Default, and Notice of Default Declaration should be excluded.

The failure of Plaintiff and/or Plaintiff’s agent to perform a condition precedent pursuant to Civil Code Section 2923.5 is fatal. The Notice of Default Declaration fails is several regards, (1) the language of the Notice does not comply with the statute because it does not set forth facts of how the statute was performed; (2) the Declaration is not sworn under penalty of perjury; (3) the only date of the Declaration is the date of execution which is one day prior to the Notice of Default which was recorded only five days later, thus, thirty days did not pass from the date of execution of the Declaration and the date of recordation. As such, under Section 2923.5, the Notice of Default Declaration is void and could not support the recordation of the Notice of Default.  Because the non-judicial foreclosure process is subject to strict scrutiny, and given the material failure of a condition precedent by Plaintiff and/or Plaintiff’s agent, the entire non-judicial foreclosure process is invalid.  Therefore, the Trustee’s Deed After Sale cannot be admitted into evidence, as no lawful foundation can be laid.

//

DATED:  June 14, 2010.                  ________________________________________

LAW OFFICES OF TIMOTHY L. MCCANDLESS

By: Timothy P. McCandless, Esq.

Attorney for Defendant,

MEMORANDUM OF POINTS AND AUTHORITIES

I.

FACTUAL BACKGROUND

The court’s records for this case will show that Plaintiff FANNIE MAE filed its Complaint on or about  August 4, 2009.   The apparent foreclosing beneficiary was plaintiff, FANNIE MAE.  [See attachment to Unlawful Detainer Complaint entitled “Trustee’s Deed Upon Sale.”]

This motion ensued in its present form, because sufficient time did not remain before trial, in order to permit Defendant CABESAS to bring a regularly-noticed general demurrer or “motion for judgment on the pleadings”.

II.

THE COURT HAS POWER TO EXCLUDE ALL EVIDENCE FROM TRIAL, ON GROUNDS ANALOGOUS TO A GENERAL DEMURRER.

            The court has power to consider and grant an objection to all evidence under Evidence Code sections 353 and 400 et seq.  If no cause of action or defense is stated by the respective pleading, then no “factual issue” any longer exists, and therefore no evidence may be admitted on grounds of “relevance” under Evidence Code sections 400 et seq.

It is well established that a party may bring an in limine objection in order to exclude all evidence, as a sort of general demurrer or “motion for judgment on the pleadings”.  “Although not in form a motion, this method of attacking the pleading is identical in purpose to a general demurrer and motion for judgment on the pleadings and is governed by the same rules.  [Citations.]”  5 WITKIN, Cal.Proc.3rd page 386, “Pleading” at §953.  See also 6 WITKIN, Cal.Proc.3rd pages 571-573, “Proceedings Without Trial” at §§272-273.

According to 5 WITKIN, Cal.Proc.3rd page 340, “Pleading” at §899, a “general” demurrer concerns only the defense that the pleading does not state facts sufficient to constitute a cause of action or defense.  That is precisely what defendant contends here: the Unlawful Detainer Complaint fails to state a claim for which relief may be granted.

III.

THE COURT MUST STRICTLY ENFORCE

THE TECHNICAL REQUIREMENTS FOR A FORECLOSURE.

            The harshness of non-judicial foreclosure has been recognized. “The exercise of the power of sale is a harsh method of foreclosing the rights of the grantor.” Anderson v. Heart Federal Savings (1989) 208 Cal.App.3d 202, 6 215, citing to System Inv. Corporation v. Union Bank (1971) 21 Cal.App.3d 137, 153.  The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of his property Moeller v. Lien (1994) 25 Cal.App.4th 822, 830; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 503; Lo Nguyen v. Calhoun (6th District 2003) 105 Cal.App.4th 428, 440, and a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.179; Anderson v. Heart Federal Sav. & Loan Assn., 208 Cal. App. 3d 202, 211 (3d Dist. 1989), reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Bisno v. Sax (2d Dist. 1959) 175 Cal. App. 2d 714, 720.

It has been a cornerstone of foreclosure law that the statutory requirements, intending to protect the trustor from a wrongful or unfair loss of the property, must be complied with strictly. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.182.   “Close” compliance does not count. As a result, any trustee’s sale based on a statutorily deficient Notice of Default is invalid (emphasis added). Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.182; Anderson v. Heart Federal Sav. & Loan Assn. (3dDist. 1989) 208 Cal. App. 3d 202, 211, reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Saterstrom v. Glick Bros. Sash, Door & Mill Co.(3d Dist. 1931) 118 Cal. App. 379.

Additionally, any trustee’s sale based on a statutorily deficient Notice of Trustee Sale is invalid.  Anderson v. Heart Federal Sav. & Loan Assn. (3d Dist. 1989) 11 208 Cal.App. 3d 202, 211, reh’g denied and opinion modified, (Mar. 28, 1989). The California Sixth District Court of Appeal observed, “Pursuing that policy [of judicial interpretation], the courts have fashioned rules to protect the debtor, one of them being that the notice of default will be strictly construed and must correctly set forth the amounts required to cure the default.” Sweatt v. The Foreclosure Co., Inc. (1985 – 6th District) 166 Cal.App.3d 273 at 278, citing to Miller v. Cote (1982) 127 Cal.App.3d 888, 894 and SystemInv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-153.

The same reasoning applies even to a notice of a trustee’s sale.  Courts will set aside a foreclosure sale when there has been fraud, when the  sale has been improperly, unfairly, or unlawfully conducted, or when there has  been such a mistake that it would be inequitable to let it stand. Bank of America Nat. Trust & Savings Ass’n v. Reidy (1940) 15 Cal. 2d 243, 248; Whitman v. Transtate Title Co.(4th Dist. 1985) 165 Cal. App. 3d 312, 322-323; In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1228.  See also Smith v. Williams (1961) 55 Cal. 2d 617, 621; Stirton v. Pastor (4th Dist. 1960) 177 Cal. App. 2d 232, 234; Brown v. Busch (3d Dist. 1957) 152 Cal.App. 2d 200, 203-204.

If somehow these foreclosing predecessor-in-interest can establish this standing, or right, to extrajudicially foreclose, still it should be prevented from pursuing this eviction action, because such an action, if successful, would result in a wrongful foreclosure, due to the predecessor-in-interest’s exercise of a non-existent extrajudicial power.

IV.

PLAINTIFF, OR PLAINTIFF’S PREDECESSOR-IN-INTEREST,

DID NOT HAVE THE RIGHT TO EXTRAJUDICIALLY FORECLOSE

The foreclosing predecessor-in-interest simply did not have the right to foreclose under the subject trust deed, because the notice of default  facially invalid.

The reason why the security instrument is not valid, is because it is facially void        !  A copy of the subject trust deed – a public record!! — is attached hereto.  Further, the trueness of the copy is readily verifiable, since it is a publicly-recorded document.  Clear as daylight, contact with the trustor 30 days prior to the notice was imjpossible. The was no lender MERS is not a lender Plaintiff  did not get the assignment  till 7/8/2009  . The notice of default was recorded 7/31/2009 only 23 days after the assignment.

A trust deed adds a third party, of sorts, namely the beneficiary.  It has been observed that a trust deed naming a purely fictitious person as beneficiary may be void.  Woodward v. McAdam (1894), 101 Cal. 438.  It has been held that a trust deed might be void for uncertainty, where the deed of trust does not name or describe any of the beneficiaries, but only classified them by reference to a common attribute.  Watkins v. Bryant (1891), 91 Cal. 492.  There seems to be no common-sense reason why the same principle should not apply to the designation of the grantee/ trustee, even were the law of deeds not generally applicable to trust deeds.

Beneficiary did not have the power of sale. Such irregularities should constitute sufficient grounds to set aside the entire non-judicial foreclosure process. Therefore, the Trustee’s Deed After Sale should not be admitted as no lawful basis exists for its execution. Additionally, the Notice of Default, and Notice of Default Declaration should be excluded.

The failure of Plaintiff and/or Plaintiff’s agent to perform a condition precedent pursuant to Civil Code Section 2923.5 is fatal. The Notice of Default Declaration fails is several regards, (1) the language of the Notice does not comply with the statute because it does not set forth facts of how the statute was performed; (2) the Declaration is not sworn under penalty of perjury; (3) the only date of the Declaration is the date of execution which is one day prior to the Notice of Default which was recorded only five days later, thus, thirty days did not pass from the date of execution of the Declaration and the date of recordation. As such, under Section 2923.5, the Notice of Default Declaration is void and could not support the recordation of the Notice of Default.  Because the non-judicial foreclosure process is subject to strict scrutiny, and given the material failure of a condition precedent by Plaintiff and/or Plaintiff’s agent, the entire non-judicial foreclosure process is invalid.  Therefore, the Trustee’s Deed After Sale cannot be admitted into evidence, as no lawful foundation can be laid.

CONCLUSION

          The Plaintiff’s entire case rests upon the “facial” or “on the public record” legitimacy of the extrajudicial foreclosure by its predecessor-in-interest.  The foreclosure was facially void.  The case should be dismissed, upon the court’s determination that no factual “issue” remains.

Respectfully submitted,

DATED:  June 14, 2010             _______________________________________

LAW OFFICES OF TIMOTHY L. MCCANDLESS

By: Timothy P. McCandless

ATTORNEY FOR DEFENDANT

FINALLY! BOA FACES CLAIMS FOR BOGUS MODIFICATION ACTIONS (via Livinglies's Weblog)

FINALLY! BOA FACES CLAIMS FOR BOGUS MODIFICATION ACTIONS MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: Anyone who has entered into mortgage modification process with BOA or any other bank acting as servicer or otherwise knows the story. The Bank does everything it can to delay the process until the borrower gets into serious trouble and then the bank claims that the home should be foreclosed. There are thousands of stories of homeowners who honestly and j … Read More

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AZ: TRUSTEE CAN BE SUED IF SUBSTITUTION WAS INVALID (via Livinglies's Weblog)

AZ: TRUSTEE CAN BE SUED IF SUBSTITUTION WAS INVALID MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE JUDGES ARE STARTING TO EXAMINE DOCUMENTS AND THEY DON'T LIKE WHAT THEY ARE SEEING "Thus, while A.R.S. §33-807(E) may operate to dismiss a trustee in certain instances, if one of the allegations of a complaint is that the entity purporting to act as trustee has not been legally appointed as trustee, this statute would not come into play." BOTTOM LINE: IF THE SUBSTITUTIO … Read More

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WEIDNER: IT'S THE ALLONGE!!! (via Livinglies's Weblog)

WEIDNER: IT'S THE ALLONGE!!! MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE The Allonge- Billions of Dollars in Commerce Hangs on A Single Scrap of Paper EDITOR'S NOTE: If you wrote a check to your next door neighbor, you would expect that he would either cash it or deposit it. But what if your neighbor did business with another neighbor and gave them a copy of your check along with a piece of paper they called an allonge or assignment. So now … Read More

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Judicial Notice ?? not so fast

 All banks love to use judicial notice to establish their position but with all the robo signing the evidence is being excluded.

ROBERT HERRERA et al., Plaintiffs and Appellants,
v.
DEUTSCHE
1
BANK NATIONAL TRUST COMPANY et al., Defendants and Respondents.
No. C065630.
 Court of Appeals of California, Third District, El Dorado.Filed May 31, 2011.
NOT TO BE PUBLISHED
 MURRAY, J.
SUMMARY
 Plaintiffs Robert and Gail Herrera lost their house in South Lake Tahoe to a nonjudicial foreclosure sale.They brought suit to set aside that sale. They challenge whether the parties that conducted the sale,defendants Deutsche Bank National Trust Company (the Bank) and California Reconveyance Company(CRC), were in fact the beneficiary and trustee, respectively, under a deed of trust secured by theirproperty, and thus had authority to conduct the sale. Plaintiffs also contend that they are entitled to berepaid for the expenses they incurred in repairing and insuring the property and paying back taxes if defendants are successful in establishing their interest in the property.Defendants moved for summary judgment. In support of their motion, they requested that the trialcourt take judicial notice of recorded documents, including an Assignment of Deed of Trust and aSubstitution of Trustee. Defendants asserted that these documents established the authority of theBank and CRC to conduct the foreclosure sale. Defendants also provided a declaration by a custodian of records for CRC, in which the custodian did not expressly declare that the Bank was the beneficiary andCRC the trustee. Instead, she merely
declared that an Assignment of Deed of Trust and a Substitutionof Trustee had been recorded
and these recorded documents indicated the Bank had been assigned thedeed of trust and that CRC had been substituted as trustee.Plaintiffs appeal from a judgment after the trial court granted defendants’ motion for summary judgment. They contend defendants failed to carry their burden in moving for summary judgment andthe trial court erred in taking judicial notice of and accepting as true the contents of certain recordeddocuments. We agree and reverse the judgment in part. For the reasons discussed herein, we affirm the judgment as to the fourth cause of action, plaintiffs’ claim of unjust enrichment.
FACTUAL AND PROCEDURAL BACKGROUND
 In June of 2008, plaintiffs purchased the property at 739 Alameda Avenue, South Lake Tahoe (theProperty) at a foreclosure sale. On February 27, 2009, CRC recorded a “Notice of Default and Election toSell [the Property] Under Deed of Trust.” On May 29, 2009, CRC recorded a Notice of Trustee’s Sale. OnJuly 6, 2009, CRC recorded a Trustee’s Deed upon Sale, showing the Property had been conveyed to theBank, as foreclosing beneficiary. Plaintiffs brought suit against the Bank, CRC and others to set aside thesale, cancel the trustee’s deed, quiet title to the Property, and for unjust enrichment.In the first cause of action, plaintiffs sought to set aside the trustee’s sale. Plaintiffs alleged theypurchased “this run-down, filthy, distressed property” at a foreclosure sale, rehabilitated and repairedthe Property and paid over $4,000 in back property taxes. They had no idea there might be a deed of trust from 2003, as it did not appear in the title search. About a year later, after plaintiffs had completed repair work on the Property, the Bank, “some mega-too-big-to-fail recipient of billions of tax payer dollars” asserted an ownership interest in the Property. The Bank claimed to be the owner of the Property by virtue of a trustee’s deed recorded “by an entity purporting to be the trustee.”
In seeking to set aside the trustee’s sale, plaintiffs alleged that during the year they were the owners of the Property, they never received any notices of assignment of trustee’s deeds or notices of deficiency,nor did they receive any notices of trustee’s sale or trustee’s deeds. They alleged, on information and belief, that “CRC may be, or have been the Trustee, on a purported Trustee’s sale of the subjectproperty, to an entity which may have transferred whatever interest may have been acquired in the trustee’s sale to Defendant Deutsch[e].” Plaintiffs alleged CRC was not the trustee and had no authority to conduct a trustee’s sale, and believed no such sale had taken place. They further alleged any promissory note supporting the 2003 deed of trust was “time barred by the statute” and the maker, if any, “was lulled into believing that no action would be taken to enforce the 2003 [deed of trust] becauseno collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.”In the second cause of action, plaintiffs sought to cancel the trustee’s deed. Plaintiffs alleged the original promissory note and deed of trust no longer existed and the Bank’s deed was invalid “as it is based solely upon purported copies which have no force and effect.”The third cause of action was to quiet title to the Property. Plaintiffs alleged defendants had no original,verifiable promissory note or deed of trust and had no standing to foreclose. They further alleged all rights, title and interest asserted by defendants “were sublimated into a non-functional `security’ instrument that gives no one entity rights in individual notes and deeds of trust.” No defendant had aninterest in the Property, but they had placed a cloud upon plaintiffs’ title.In the fourth cause of action, entitled unjust enrichment, plaintiffs alleged they had paid back taxes,insured the Property, and repaired deferred maintenance. If defendants were successful in claiming an interest in the Property, plaintiffs wanted to be repaid for their expenditures.The Bank and CRC moved for summary judgment or summary adjudication on each cause of action,contending there was no triable issue of fact as to any of plaintiffs’ claims. They claimed the undispute devidence showed that the loan was in default, the Bank was the beneficiary under the deed of trust and CRC was the trustee. The default was not cured and CRC properly noticed the trustee’s sale. Notice of the sale was sent to plaintiffs and California law did not require the original promissory note to foreclose. The Bank and CRC further contended that to quiet title, plaintiffs must allege tender, or anoffer of tender, of the amount owed. They also contended there was no evidence of unjust enrichment.In support of their motion, defendants requested that the court take judicial notice of certain documents pursuant to Evidence Code sections 451, subdivision (f) and 452, subdivisions (d), (g) and (h).These documents were:(1) the Trustee’s Deed upon Sale recorded August 13, 2008, under which plaintiffs took title to theProperty;(2) a Grant Deed recorded December 13, 2002, showing the transfer of the Property to Sheryl Kotz;(3) the Deed of Trust recorded April 30, 2003, with Sheryl Kotz as trustor and Long Beach MortgageCompany as trustee and beneficiary (the 2003 deed of trust);(4) an Assignment of Deed of Trust recorded February 27, 2009, assigning all interest under the 2003deed of trust to the Bank by JPMorgan Chase Bank, as successor in interest to Washington Mutual Bank,successor in interest to Long Beach Mortgage Company;(5) a Substitution of Trustee recorded February 27, 2009, under which the Bank substituted CRC astrustee under the 2003 deed of trust;(6) a “Notice of Default and Election to Sell [the Property] Under Deed of Trust” recorded February 27,2009;(7) a Notice of Trustee’s Sale under the 2003 deed of trust recorded May 29, 2009; and(8) a Trustee’s Deed upon Sale recorded July 6, 2009, under which the Bank, as foreclosing beneficiary,was the grantee of the Property.
To support their motion, defendants also provided the declaration of Deborah Brignac. Brignac was avice-president of CRC and a custodian of records for CRC. She was one of the custodians of records forthe loan that was the subject of plaintiffs’ complaint. She declared that the CRC loan records were madein the ordinary course of business by persons with a duty to make such records and were made aboutthe time of the events reflected in the records. In April of 2003, “Shelia” [sic] Kotz 2
obtained a $340,000loan from Long Beach Mortgage Company, and the loan was secured by a deed of trust on the Property.The 2003 deed of trust provided for a power of sale if the borrower defaulted and failed to cure thedefault. It also provided that successor trustees could be appointed.Brignac further declared that as of February 26, 2009, $10,970.50 was “owed” on the note.
3
An assignment of the 2003 deed of trust was recorded February 27, 2009, indicating the transfer of all interest in the 2003 deed of trust to the Bank. A Substitution of Trustee was recorded the same date.According to Brignac’s declaration, the Bank’s substitution “substitutes the original trustee, Long Beach Mortgage Company for [CRC].”Brignac further declared that a Notice of Default and Election to Sell under Deed of Trust was recorded on February 27, 2009, and copies were sent to plaintiffs on March 4, 2009, as shown in the affidavits of mailing attached to her declaration. A Notice of Trustee’s Sale was recorded on May 29, 2009. Copies of this notice were mailed to plaintiffs, as shown in the attached affidavits of mailing.
4
The loan was not reinstated. The Property was sold at a trustee’s sale on June 25, 2009. At the time of sale, the total unpaid debt was $336,328.10. At no time before the trustee’s sale did plaintiffs tender the unpaid debt.The Bank and CRC filed a separate statement of undisputed facts setting forth the facts as stated in Brignac’s declaration.In response, plaintiffs admitted the description of the Property and that they purchased it on June 24,2008, at a foreclosure sale; they disputed all of the remaining facts. They asserted that the Brignac declaration was without foundation and contained hearsay and that all of the recorded documents contained hearsay.In their opposition to the motion for summary judgment, plaintiffs began with a diatribe against the”Foreclosure Industry,” asserting the industry operated “as if the Evidence Code, the law of contracts,assignments, deeds of trust and foreclosure are merely optional.” They contended defendants failed tomeet their burden of proof for summary judgment because their request for judicial notice and Brignac’sdeclaration were inadmissible hearsay. They further contended the notice of default and the notice of trustee’s sale failed to meet statutory requirements of California law. Finally, they asserted defendants lacked standing to foreclose because they had not produced even a copy of the promissory note.Plaintiffs moved to strike the declaration of Brignac as lacking foundation and containing hearsay. They also opposed the request for judicial notice. They argued the recorded documents were all hearsay.Citing only the Federal Rules of Evidence and federal case law grounded on the federal rules, plaintiffs argued a court cannot take judicial notice of disputed facts contained in a hearsay document. Plaintiffs disputed “virtually everything” in the recorded documents, arguing one can record anything, regardless of its accuracy or correctness.The trial court overruled plaintiffs’ hearsay objections, denied plaintiffs’ motion to strike the Brignac declaration, granted defendants’ request for judicial notice, and granted defendants’ motion for summary judgment, finding no triable issue of material fact. Judgment was entered in favor of the Bankand CRC.
DISCUSSION
I. Law of Summary Judgment and Standard of Review
 A defendant “may move for summary judgment in any action or proceeding if it is contended that theaction has no merit.” (Code Civ. Proc., § 437c, subd. (a).) “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of thecause of action, even if not separately pleaded, cannot be established, or that there is a complete
defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to theplaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action ora defense thereto.”(Id.,subd. (p)(2).) “The motion for summary judgment shall be granted if all thepapers submitted show that there is no triable issue as to any material fact and that the moving party isentitled to a judgment as a matter of law.” (Id.,subd.(c).)”When the defendant moves for summary judgment, in those circumstances in which the plaintiff wouldhave the burden of proof by a preponderance of the evidence, the defendant must present evidencethat would preclude a reasonable trier of fact from finding that it was more likely than not that thematerial fact was true [citation], or the defendant must establish that an element of the claim cannot beestablished, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain,needed evidence.'” (Kahn v. EastSide Union High School Dist.(2003)31 Cal.4th 990, 1003.) A defendantmoving for summary judgment must “present evidence, and not simply point out that the plaintiff doesnot possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co.
(2001)25Cal.4th 826, 854, fn. omitted.)We review a grant of summary judgment de novo. (Bussv. Superior Court(1997)16 Cal.4th 35, 60.) “Inundertaking our independent review of the evidence submitted, we apply the same three-step analysisas the trial court. [Citation.] First, we identify the issues framed by the pleadings. Next, we determinewhether the moving party has established facts justifying judgment in its favor. Finally, if the movingparty has carried its initial burden, we decide whether the opposing party has demonstrated theexistence of a triable, material fact issue. [Citation.]”((2002)103 Cal.App.4th 1409, 431-1432 (Bono).)
II. First, Second and Third Causes of Action
 While plaintiffs’ complaint is hardly a model of clarity, it seeks to undo the foreclosure sale. The firstthree causes of action  to set aside the sale, cancel the trustee’s deed and quiet title  claim, amongother things, that the Bank and CRC had no authority to conduct the foreclosure sale. On this point,plaintiffs allege the Bank claims to be the owner of the Property by virtue of a trustee’s deed recorded”by an entity purporting to be the trustee.” They further allege CRC was not the trustee and had noauthority to conduct the sale; the sale did not take place or was improperly held. The first three causesof action of plaintiffs’ complaint are based on the allegations that the Bank had no interest in theProperty and CRC was not the trustee and had no authority to conduct a trustee’s sale. Thus, initialissues framed by the pleadings are whether the Bank was the beneficiary under the 2003 deed of trustand whether CRC was the trustee under that deed of trust. The fourth cause of action for unjustenrichment raises different issues and will be discussed separately in part III. of the Discussion, post.
 Defendants moved for summary judgment on the basis that plaintiffs’ allegations were not supported bythe undisputed facts. They asserted CRC was the trustee pursuant to the Substitution of Trustee recorded by the Bank as beneficiary under the 2003 deed of trust.To establish that CRC was the trustee and thus had authority to conduct the trustee’s sale, defendants requested that the trial court take judicial notice of the recorded Assignment of Deed of Trust, which showed the Bank was the beneficiary. Defendants also requested that the trial court take judicial notice of the recorded Substitution of Trustee, which showed the Bank, as beneficiary, had substituted CRC as trustee.Matters that may be judicially noticed can support a motion for summary judgment. (Code Civ. Proc., §437c, subd. (b)(1).) However, plaintiffs contend the trial court erred in taking judicial notice of thedisputed facts contained within the recorded documents. We agree.”`Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.'” (Lockley v. Law Office of Cantrell , Green, Pekich, Cruz&McCort (2001)91 Cal.App.4th 875, 882.)
“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid.Code, §450.) “Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. Amatter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.]”(Fremont Indemnity Co. v.Fremont General Cor p.(2007)148 Cal.App.4th 97, 113.)”Taking judicial notice of a document is not the same as accepting the truth of its contents or acceptinga particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage(1986)184 Cal.App.3d 369,374.) While courts take judicial notice of public records, they do not take notice of the truth of mattersstated therein. (Love v. Wol f(1964)226 Cal.App.2d 378, 403.) “When judicial notice is taken of adocument, . . . the truthfulness and proper interpretation of the document are disputable.” (StorMedia,Inc. v. Superior Court(1999)20 Cal.4th 449, 457, fn. 9 (StorMedia).)This court considered the scope of judicial review of a recorded document in Poseidon Development , Inc.v. Woodland Lane Estates , LLC(2007)152 Cal.App.4th 1106(Poseidon ). “[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley `is thepresent holder of beneficial interest under said Deed of Trust.’ By taking judicial notice of the FirstSubstitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot beconsidered not reasonably subject to dispute.” (Id.
at p. 1117.)The same situation is present here. The Substitution of Trustee recites that the Bank “is the presentbeneficiary under” the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trialcourt could not take judicial notice of it. Nor does taking judicial notice of the Assignment of Deed of Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites thatJPMorgan Chase Bank, “successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTERESTTO LONG BEACH MORTGAGE COMPANY” assigns all beneficial interest under the 2003 deed of trust tothe Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach MortgageCompany, through Washington Mutual, is hearsay. Defendants offered no evidence to establish thatJPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. Thetruthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (StorMedia,supra,20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute the truthfulness of the contents of all of therecorded documents.Judicial notice of the recorded documents did not establish that the Bank was the beneficiary or thatCRC was the trustee under the 2003 deed of trust. Defendants failed to establish “facts justifying judgment in [their] favor” (Bono ,supra,103 Cal.App.4th at p. 1432), through their request for judicialnotice.Defendants also relied on Brignac’s declaration, which declared that the 2003 deed of trust permittedthe beneficiary to appoint successor trustees. Brignac, however, did not simply declare the identity of the beneficiary and the new trustee under the 2003 deed of trust. Instead, she declared that anAssignment of Deed of Trust and a Substitution of Trustee were recorded on February 27, 2009. Thesefacts add nothing to the judicially noticed documents; they establish only that the documents wererecorded.Brignac further declared that “[t]he Assignment of Deed of Trust indicatesthat JPMorgan Bank [sic],successor in interest to Washington Mutual Bank, successor in interest to Long Beach MortgageCompany, transfers all beneficial interest in connection with the [deed of trust] to Deutsche BankNational Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4.” (Italics added.) Thisdeclaration is insufficient to show the Bank is the beneficiary under the 2003 deed of trust. A supportingdeclaration must be made on personal knowledgeand “show affirmatively that the affiant is competentto testify to the matters stated.” (Code Civ. Proc., § 437c, subd. (d).) Brignac’s declaration does notaffirmatively show that she can competently testify the Bank is the beneficiary under the 2003 deed of trust. At most, her declaration shows she can testify as to what the Assignment of Deed of Trust
 But the factual contents of the assignment are hearsay and defendants offered no exception to the hearsay rule prior to oral argument to make these factual matters admissible.At oral argument, defendants contended that the recorded documents were actually business records and admissible under the business record exception. We note that Brignac did not provide any information in her declaration establishing that the sources of the information and the manner and time of preparation were such as to indicate trustworthiness. (Evid.Code, § 1271, subd. (d).)5
Information concerning this foundational element was conspicuously lacking.
6
Yet, this information was critical in light of the evidentiary gap establishing the purported assignments from Long Beach Mortgage Company to Washington Mutual Bank to JP Morgan Chase Bank. The records used to generate theinformation in the Assignment of Deed of Trust, if they exist, were undoubtedly records not prepared byCRC, but records prepared by Long Beach Mortgage Company, Washington Mutual and JP Morgan Chase. Defendants have not shown how Brignac could have provided information about the source of that information or how those documents were prepared. (See
Cooley v. Superior Court(2006)140Cal.App.4th 1039[district attorney unable to attest to attributes of subpoenaed records in hispossession relevant to their authenticity and trustworthiness]; Evid.Code, § 1561.) Moreover, the timingof those purported assignments relative to the recording of those events on the Assignment of Deed of Trust cannot be found in the Brignac declaration or anywhere else in the record.We also note that Brignac did not identify either the February 27, 2009 Assignment of Deed of Trust, oranother key document, the February 27, 2009 Substitution of Trustee, as business records in herdeclaration. Rather, she referenced both documents in her declaration by stating that “[a] recordedcopy” was attached as an exhibit. In light of the request for judicial notice, we take this statement tomean that the exhibits represented copies of records on file at the county recorder’s office.
7
On amotion for summary judgment, the affidavits or declarations of the moving party are strictly construedagainst the moving party. (Mann v. Cracchiolo(1985)38 Cal.3d 18, 35 (Mann).) Of course, had thedocuments reflecting the assignments and the substitution been offered as business records, therewould have been no need to request that the court take judicial notice of them. Accordingly, we rejectdefendants’ newly advanced theory.Brignac’s declaration is lacking in yet another way. It is confusing as to the effect of the Substitution of Trustee. She declares, “The Substitution by Deutsche Bank National Trust Company as Trustee for LongBeach Mortgage Loan Trust 2003-4 substitutes the original trustee, Long Beach Mortgage Company forCalifornia Reconveyance Company.” Brignac’s declaration (and defendants’ statement of undisputedfacts) can be read to state that the Bank substituted Long Beach Mortgage Company for CRC as trustee,rather than that CRC was substituted for Long Beach Mortgage Company. We must strictly construe thisstatement against the moving party. (Mann,supra,38 Cal.3d at p. 35.) Even if we were to construeBrignac’s declaration to state that the Bank substituted CRC as trustee under the 2003 deed of trust, itwould be insufficient to establish CRC is the trustee. A declaration that the Substitution of Trustee bythe Bank made CRC trustee would require admissible evidence that the Bank was the beneficiary underthe 2003 deed of trust and thus had the authority to substitute the trustee. As explained ante, defendants failed to provide admissible evidence that the Bank was the beneficiary under the 2003 deedof trust.At oral argument, defendants asserted that plaintiffs’ hearsay objections to their separate statement of facts did not comply with the California Rules of Court. (See Cal. Rules of Court, rule 3.1354(b).) Fromthis, defendants impliedly suggest those objections should be ignored by this court. Whether theobjections complied with the rules of court is of no moment at this juncture. The trial court ruled onthose objections in its order granting summary judgment, stating “Plaintiffs’ hearsay objections areoverruled.” The wording of the court’s order (drafted by defendants) suggests the ruling was made onsubstantive evidentiary grounds, not procedural grounds, and there is no evidence in the record to thecontrary.
Because defendants failed to present facts to establish that the Bank was beneficiary and CRC wastrustee under the 2003 deed of trust, and therefore had authority to conduct the foreclosure sale,triable issues of material fact remain as to the first three causes of action. The trial court erred ingranting summary judgment and it would be error to grant summary adjudication as to any of thosecauses of action.
III. Fourth Cause of Action
 Defendants moved for summary judgment or, alternatively, for summary adjudication as to each causeof action. Accordingly, we consider whether summary adjudication was proper as to the fourth cause of action.The fourth cause of action is entitled “Unjust Enrichment.” Plaintiffs allege that, in the event the Bank issuccessful in asserting its claim to the Property, defendants should pay plaintiffs all monies theyexpended on the Property for back taxes, insurance and deferred maintenance. In their motion forsummary judgment or summary adjudication, defendants contend there can be no claim of unjustenrichment because the Bank had a right to protect its security interest in the Property and it is”inconceivable” CRC was unjustly enriched once plaintiffs defaulted on their obligation.”There is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtainingrestitution based on quasi-contract or imposition of a constructive trust. (1 Witkin, Summary of Cal. Law(10th ed. 2005) Contracts, §§ 1015, 1016, pp. 1104-1105.)” (McKell v. Washington Mutual , Inc.(2006)142 Cal.App.4th 1457, 1490.) Plaintiffs fail to plead a basis for restitution; they allege only that theyspent money on the Property and they would like the money back if they lose the Property.The fourth cause of action pleads no recognizable legal claim and thus is subject to summaryadjudication. “The procedure for resolving a summary judgment motion  presupposes
that the pleadings are adequate to put in issue a cause of action or defense thereto. [Citation.] However a pleading may be defective in failing to allege an element of a cause of action or in failing to intelligibly identify a defense thereto. In such a case, the moving party need not address a missing element or, obviously, respond to assertions which are unintelligible or make out no recognizable legal claim. The summary judgment proceeding is thereby necessarily transmuted into a test of the pleadings and the summary judgment motion into a motion for judgment on the pleadings. In these circumstances it has been said that adefendant’s `motion for summary judgment necessarily includes a test of the sufficiency of the complaint and as such is in legal effect a motion for judgment on the pleadings.’ [Citation.]”(FPIDevelopment , Inc. v. Nakashima(1991)231 Cal.App.3d 367, 382.)Since plaintiffs failed to properly plead a right to restitution on the basis of unjust enrichment, the trialcourt did not err in granting summary adjudication as to the fourth cause of action.
DISPOSITION
 The judgment is reversed with directions to vacate the order granting summary judgment and to enter anew order denying summary judgment, and granting defendants summary adjudication of the fourthcause of action only. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule8.278(a)(3).)We concur:RAYE, P. J.NICHOLSON, J.
Footnotes
1. The name of defendant Deutsche Bank National Trust Company was misspelled “Deutsch” by plaintiffs in the complaint and other filings. We use the correct spelling in our opinion.
Back to Reference
 

One West False statements

False Statements

06/28/2011

California Bankruptcy Judge Laura Stuart Taylor has joined the ranks of judges who will not tolerate fraudulent documents produced by banks to foreclose. Judge Taylor entered an Order To Show Cause why OneWest Bank, FSB, should not incur “a significant coercive sanction intended to deter any future tender of misleading evidence to any court of this district.” Judge Taylor ordered OneWest to appear before her on July 29, 2011, to show cause as to why it should not be subject to compensatory and/or coercive sanctions, in the case In re Jessie M. Arizmendi, Bk. No. 09-19263-PB13, U.S. Bankruptcy Court, Southern District of California. The case involves a motion for relief from stay filed by OneWest supported with a declaration of Brian Burnett, who declared under penalty of perjury that OneWest was the real party in interest in connection with the Motion because OneWest was the current beneficiary under the terms of a promissory note and Deed of Trust.

According to the Burnett declaration, OneWest received its interest in the Trust Deed pursuant to an Assignment from MERS. The assignment of the Trust Deed and the Note showed the transfer from MERS as nominee for the original lender directly to OneWest in 2010.

At trial, however, OneWest’s witness, Charles Boyle, testified that the beneficiary of the loan was actually Freddie Mac. Based on this conflict, the Court required post-trial briefings.

According to the Court, “OneWest, in its post-trial brief, provided a standing argument based on a new version of the Note, which attached an allonge dated July 24, 2007 evidencing a transfer from Original Lender to IndyMac Bank, FSB and bore an endorsement in blank from IndyMac Bank, FSB. This was new information not presented in the OneWest Declaration and this note was not identical to the note authenticated by the OneWest Declaration and attached to the OneWest Proof of Claim.

This Court is concerned, thus, that OneWest provided false or misleading evidence to the Court and that OneWest did so willfully, maliciously, in bad faith, and/or for an inappropriate purpose.”

According to research by Fraud Digest, Brian Burnett has used many different job titles when signing mortgage-related documents for OneWest, often using different titles on the same day, including:

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Acoustic Home Loans;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Aegis Wholesale Corporation;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for American Brokers Conduit;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Beach First National Bank;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Credit Suisse Financial Corp.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for CTX Mortgage Company, LLC;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for DHI Mortgage Company, Ltd.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Express Capital Lending;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Finasure Home Loans, LLC;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for First Magnus Financial Corporation;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for First Meridian Mortgage;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Flick Mortgage Investors, Inc.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Home Loan Center, Inc. d/b/a LendingTree Loans;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Impac Funding Corp., d/b/a Impac Lending Group;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for IndyMac Bank, FSB;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for LoanCity;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for MortgageIt, Inc.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for NetBank, a Federal Savings Bank;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for New American Funding, a California Corporation;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Opteum Financial Services, LLC;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for OneWest Bank, FSB;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Quicken Loans, Inc.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Sloan Mortgage Group, Inc.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Taylor, Bean & Whitaker;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for TM Capital, Inc.

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for d/b/a Fedfirst Mortgage Corporation; and

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for UBS AG.

July 29, 2011, may be the day that Brian Burnett and OneWest are held accountable for the thousands of mortgage assignments – with false statements regarding the history and ownership of mortgages – presented to courts to foreclose.

Javaheri v. JPMorgan Chase finally !!

From ChaseChase.org:

Federal District Court

Javaheri v. JPMorgan Chase, Case No. CV10-8185 ODW

Otis D. Wright II, Judge, U.S. District Court, Central District of California, Los Angeles
Douglas Gillies, attorney for Daryoush Javaheri

Plaintiff sued to halt a foreclosure initiated by JPMorgan Chase and California Reconveyance Co. Chase responded with a Motion to Dismiss. Two times the court granted Chase’s motion with leave to amend. Plaintiff filed a Second Amended Complaint and Chase again moved to dismiss.

In opposing the motion, Plaintiff requested that the court take judicial notice of:

(1) the Congressional Oversight Panel November Oversight Report (COP Report) released on November 16, 2010 – http://cop.senate.gov/documents/cop-111610-report.pdf

(2) Federal Reserve System Consent Order in the Matter of JPMORGAN CHASE & CO., Docket No. 11-023-B-HC and 11- 023-B-DEO, dated April 13, 2011 – www.federalreserve.gov/newsevents/press/enforcement/enf20110413a5.pdf

Judge Wright denied Chase’s motion to dismiss five causes of action – wrongful foreclosure, quiet title, violation of Cal Civ. Code Sec. 2923.5, quasi contract, and declaratory relief.

The Banksters will get you any way they can

By Niel Garfield

EDITOR’S NOTE AND COMMENT: LAWYERS BEWARE! Starting up an anti-foreclosure venture and making comments criticizing the system has reportedly caused some investigations to begin and may result in bar discipline for technical infractions. From what I can see, the Bar is focused on UPL — unauthorized practice of law. The use of non-licensed people to do either intakes or provide services COULD subject the lawyer to discipline, which the Banks would just love to see. Be careful how you structure and supervise your organization. If grievances pile up (which they will, because you can’t save everyone), the Bar will be at your door-step. Document everything you do and stay in constant contact in writing with each client.

Daily Business Review.com: Lawyers investigated for criticizing system

No attorneys are facing disciplinary charges for their work in foreclosure cases despite a firestorm of complaints about purported fraudulent court filings on behalf of lenders.

But two foreclosure defense attorneys have been actively investigated for publicly criticizing the gridlocked foreclosure process.

The Bar investigated Jacksonville attorney Chip Parker for telling CNN, “Foreclosure courts throughout the state of Florida have adopted a system of ramming foreclosure cases through the final judgments and sale — with very little regard to the rule of law.” He also said, “What I am seeing now is an attack upon the citizens of the state of Florida by retired judges.”

The Bar also is investigating Tampa lawyer Matthew Weidner for “exercising free speech in the courtroom” in violation of a Pinellas County ordinance. Weidner, a prominent foreclosure defense lawyer, runs a blog critical of the state’s foreclosure process and is frequently quoted in national publications.

The article then goes on to say this…

Parker learned he was under scrutiny in a letter from Bar counsel Shanell Schuyler last Dec. 3. The letter, obtained by the Review, includes a link to Parker’s CNN interview and advises him to explain his on-camera statements in writing by Dec. 20 in light of The Bar’s Rule of Professional Conduct 4-8.2 prohibiting lawyers from making false or reckless comments about court personnel.

“I was shocked,” Parker said. “I said, ‘This is a joke, right?’ I have a First Amendment right to free speech. I’ve said a lot worse and been more pointed in my speech in the past. CNN actually toned down my comments.”

Parker responded to The Bar by quoting Oliver Wendell Holmes Jr., the late associate justice of the U.S. Supreme Court, saying his criticism was “consistent with the great traditions of American lawyers.”

Parker said he hasn’t been told who filed the complaint due to confidentiality rules, but he heard it was an offended judge. He reached out to constitutional lawyer Talbot “Sandy” D’Alemberte, a former president of the American Bar Association and Florida State University, whom he had met at a recent dinner honoring Parker. D’Alemberte intervened at The Bar, and the case was dropped Jan. 13, 2011.

D’Alemberte also is helping Weidner at the request of the Florida Press Association and the First Amendment Foundation, which were contacted by Weidner. He declined comment on his pending investigation. But D’Alemberte said he believes the case also will be dropped.

You can check out the article in full here…
(Free registration required)

Unfortunately, these two “good guys” are not the only defense attorneys being investigated. I personally know of a few others that are being “probed” as well…

So there you have it folks. You stand up against the banksters and they come at you any way they can…

But, don’t forget, it’s okay to join a Foreclosure Mill if you are a chief judge….

Beware of foreclosure scams currently under investigation by the District Atorney

Each day I get calls from desperate people hoping against hope the there is a magic document that can be filed or recorded the will magically give them their home free and clear without recourse. I tell them if it sounds to good to be true it probably is. That’s not to say that I don’t agree with the position that the documents that now exist as to these securitized loans are not defective. I do believe that the real party in interest is not the one foreclosing. I also believe that the party who is out the money or the true lender has been paid with insurance (one such insurer was AIG), or is being paid under the pooling and servicing agreement, or has a guarantee from a bailout program. They are going to get paid and they are going to take the house based upon forged documents.

The homeowner is being told he doesn’t qualify for a principal reduction. That although they qualified for a $4,000.00 monthly payment when they got the loan now they do not qualify for a $2,400.00 payment.

The world is crazy right now. Take a look at what the Los Angeles County District Attorney’s Office is investigating now.

Los Angeles County District Attorney’s Office
Responses to Preventing Foreclosures
and Foreclosure Rescue Fraud

1. Types of Foreclosure Rescue Fraud Cases Being Investigated
• Home Equity Sales Contract Fraud: Suspects convince homeowners to grant title of the property to them and pay them rent. Suspects usually promise to return property back to the victims in a year or two when their credit is improved. Suspects either take out loans against the property or sell the property and pocket the equity.
•Mortgage Foreclosure Consultant Fraud: Suspect contacts homeowner whose home is in foreclosure and claims to be able to assist in delaying or preventing foreclosure by obtaining new financing. Suspect instructs homeowner to transfer title of property to an individual (suspect or suspect’s accomplice) who can qualify for new financing. Suspect obtains new loan including all equity. Usually within months, the homeowner receives a notice of default in the mail and the suspect has already absconded with sales proceeds.
•Bankruptcy Fraud: Suspects file fraudulent bankruptcy cases using a fictitious business and/or trust using fractionalized deeds. Homeowners pay a monthly fee to the suspects while foreclosure is being delayed because of the bankruptcy proceedings. When a fraudulent bankruptcy case is dismissed, suspects file another fraudulent bankruptcy case.
•Loan Modification Fraud: Suspects charge an upfront fee and/or monthly fees to negotiate with lenders on the behalf of the homeowners. Typically, they provide no service or minimal service and just take the money.
•Forged Reconveyance Fraud: Suspects file a forged reconveyance on a property, making it appear that the property is owned free and clear. Suspects encumber the property with a new loan and run off with the new loan proceeds.
•Rent Skimming: Trespassing on vacant property and renting to unsuspecting tenants.
2. How Are We Addressing the Crisis
•Cases are investigated where there are a significant number of victims and losses. Consideration to investigate a case is also based on the facts of a complaint submitted to our office for review.
• The Los Angeles County Real Estate Fraud Task Force meets monthly and shares
information on current trends and cases being investigated. The task force has
been in existence for approximately ten years. The task force is comprised of the
following agencies: Department of Real Estate, County Department of Consumer
Affairs, County Registrar Recorder, Los Angeles Police Department, Los Angeles
County Sheriff’s Department and County Assessor. Other law
enforcement/county agencies also attend the task force meetings.
• We coordinate with outside agencies to investigate cases that have multiple
victims in various jurisdictions.
3. Type of Scams
• Phony counseling: Scam artists convince homeowners that they can negotiate a
deal with lenders. Once they collect the fee, they take off.
• Rent-To-Buy Scam/Rent Skimming: Suspects convince homeowners to grant title
of the property to them and pay them rent. Suspects usually promise to return the
property back to the victims in a year or two when their credit is improved.
Suspects either take out loans against the property or sell the property and pocket
the equity. Suspects benefit from rent money and the equity they stole.
• Bankruptcy Foreclosure: Suspects file fraudulent bankruptcy cases using a
fictitious business and/or trust using fractionalized deeds. Sometimes scam artists
file bankruptcy in homeowners’ names – sometimes without their knowledge.
Often attorneys are involved in this scam.
4. Challenges
• Thousands of complaints are received throughout the county annually and due to
limited personnel (e.g. detectives, prosecutors, etc.) many cases are often not
investigated.
• Cases investigated are often complex and labor intensive.
• Many of the companies have gone out of business that have the records to prove
the crime (e.g. Title Company, Escrow Company, financial institution, etc.).
5. Tools or Resources Needed
•Additional investigators and prosecutors.
•Continue Community Outreach Programs to educate the public on what government programs are available to assist them.
•Enhance current statutes with greater punishment (longer prison sentences) and reconvey clear title through the criminal process thus returning the property to the original owner.
•Greater regulatory oversight and accountability over all of the players involved in all real estate transactions (e.g. Appraisers, loan brokers, title companies, etc.) .
•Improve the manner/verification in which records for recordation are accepted.
•Restrict access to real estate records by the general public (Need-to-Know/ Right-to-Know).

Current articles in foreclosure

AKRON, Ohio – The Cuyahoga County judge charged in the county corruption investigation for allegedly fixing a foreclosure case has been found guilty on three of the five charges he was facing. The federal jury returned the verdict against Judge Steven Terry shortly before 2 p.m. Monday in Akron. Terry, who was facing five […]
MOST POPULAR ARTICLES DISCOUNT FOR EARLY BIRD REGISTRATION RUNS OUT ON JUNE 22 CLICK HERE TO REGISTER FOR 2 DAY GARFIELD CONTINUUM CLE SEMINAR GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE FROM MARY COCHRANE: MANY THANKS FOR YOUR EXCELLENT WORK Do you know what ‘xxx’ your loan is inside of? Do you know […]
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  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE GET NEWSLETTER: FOR PASSWORD BECOME MEMBER AND LOOK AT YOUR EMAIL Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: foreclosure, foreclosure defense, foreclosure offense, foreclosures, securitization, TILA audit
  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE — EVIDENCE COUNTS!!! click-here-to-register-for-seminar   WHY YOU NEED TO ATTEND GARFIELD CONTINUUM SEMINAR If you don’t understand why the bundling of mortgages at the level of the investment banks is important to your case(s) involving securitized mortgages, then you don’t “get it” yet. […]
  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE — EVIDENCE COUNTS!!! “the Court will not participate in a process where OneWest increases its profits by disobeying the rules of this Court and by providing the Court with erroneous information“ NEW NOTE GAMBIT ANGERS JUDGE EDITOR’S COMMENT: We’ve been watching this for […]
  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE — EVIDENCE COUNTS!!! NEIL GARFIELD, GARFIELD CONTINUUM SEMINARS, LIVINGLIES VINDICATED IN FULL NO MERIT TO FORECLOSURE ACTIONS, PAST PRESENT OR FUTURE UNLESS THE REAL CREDITOR IS PRESENT. BURDEN OF PROOF SHIFTS TO PRETENDERS 57568003-IN-RE-VEAL-w “IN THIS CASE, ONE COMPONENT OF PRUDENTIAL STANDING IS […]
  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE Dear Scott, and all ‘Consumers’ stop being bullied! Open up the windows and scream outside at the top of your lungs! Just like in the move was it in BROOKLYN? ‘I AM NOT GOING TO TAKE THIS ANYMORE”? Consumers are in danger of […]
  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR’S NOTE: They report this like $20 billion is a big number. The Banks caused tens of trillions of dollars in damages, stole $13 trillion from investors, stole some $5 trillion worth of property from homeowners who legally still probably own the property […]
  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE — EVIDENCE COUNTS!!! The Uncertainty Tax By THOMAS L. FRIEDMAN If you want to understand why the unemployment rate has been stubbornly lodged around 9 percent, a good place to start is with the eye-popping mortgage statistics released last week by the economic […]
  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE ANOTHER LOSS FOR DEUTSCH BANK   Home sweet foreclosed home: Queens man returns to home after judge overrules bank’s foreclosure BY Robert Gearty DAILY NEWS STAFF WRITER Sunday, June 5th 2011, 4:00 AM Johnny Ferreira may be the luckiest guy in Queens. Ninety-nine […]
  • MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR’S NOTE: It is this simple: Nobody wants modifications except homeowners. Everyone else profits from pretending to have a mortgage modification process and then foreclosing. It is the biggest land grab in history. Big Banks Penalized for Performance in Mortgage Modification Program By […]
  • Just Cause Eviction Ordinance Richmond City Council Passes Just Cause Eviction Ordinance Tenants protected from unfair evictions from foreclosed home “It’s unfair for a tenant in good standing to be thrown out of their home because of a foreclosure that they could not prevent.” -Richmond City Council member, Dr. Jeff Ritterman “We see tenants who […]
  • Do We Have a Fraud Problem? The Case of the Mysteriously Appearing Allonge posted by Adam Levitin I have generally been willing to give mortgage servicers, servicer support shops (like LPS), and foreclosure attorneys the benefit of the doubt when it comes to documentation irregularities (to put it mildly) in foreclosures. My working assumption up […]
  • 2924 unconstitutional Check out this pro per complaint they raise some interesting issues. PJATSI+Supplemental+Complaint+March+25+2011 Filed under: 2924, Foreclosure Tagged: 2924, civil code 2924, Foreclosure, foreclosure defense, foreclosure offense, foreclosures, lis pendence, litigation, unconstitutional
  • 20. TIME: 9:00 CASE#: MSC11-00162 CASE NAME: CHRISTINA PENNES vs. PNC MORTGAGE HEARING ON DEMURRER TO COMPLAINT of PENNES FILED BY PNC BANK, NATIONAL ASSOCIATION * TENTATIVE RULING: *   Defendant PNC Bank, N.A.’s Demurrer to each cause of action within the Complaint is sustained with leave to amend in part and without leave […]
  • Filipino Homeowners Get Principal Reduction Relief Written by admin Featured News, News Highlights, Top StoriesJun 8, 2011 By Henni Espinosa, ABS-CBN North America Bureau June 8, 2011 UNION CITY, Calif. – Amy and Peter Asi, who lost both their jobs in 2009, almost gave up on their home. For two years, they had asked their […]
  • BOMBSHELL- ANOTHER 2ND DCA SMACKDOWN- KONSULIAN! June 1st, 2011 Paragraph 22 of almost every mortgage contains a provision that requires the plaintiff to provide notice and an opportunity to cure the default prior to foreclosure. The principle behind this paragraph and the right to cure is not just a helpful little piece for the defendant, […]
  • Posted on May 26, 2011 by Neil Garfield GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR’S COMMENT: Here is our problem writ large. The commentary written by Shedlock (see below) is basically on the side of punishing the banks for their wrongdoing, but not giving any relief to borrowers. The logic behind the […]
  • Statutes of Limitations for TILA and RESPA Claims – For TILA claims, the statute of limitations for actions for damages runs one year after the loan origination. 15 U.S.C. § 1640(e). For actions seeking rescission, the statute of limitations is three years from loan origination. 15 U.S.C. § 1635(f). For RESPA, actions brought for lack […]
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  • Res Judicata Effect of Prior UD Action – Issues of title are very rarely tried in an unlawful detainer action and moving party has failed to meet the burden of demonstrating that the title issue was fully and fairly adjudicated in the underlying unlawful detainer. Vella v. Hudgins, 20 Cal. 3d 251, 257 (1977). The […]
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– Cause of Action for Violation of Bus. & Prof. Code § 17200 – “The UCL does not proscribe specific activities, but broadly prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. The UCL governs anti-competitive business practices as well as injuries to consumers, and has as […]
SEE LIVINGLIES LITIGATION SUPPORT AT LUMINAQ.COM EDITOR’S NOTE: Finding that lawyers and judges are confused about the meaning and use of terms like “real party in interest” and “standing,” it hardly comes as a surprise that pro se litigants and other homeowners are confused as well. These concepts, which have been used and abused for […]

‘enough is enough’ to banks that are throwing tenants and their families out of their homes

Just Cause Eviction Ordinance

Richmond City Council Passes Just Cause Eviction Ordinance
Tenants protected from unfair evictions from foreclosed home

“It’s unfair for a tenant in good standing to be thrown out of their home because of a foreclosure that they could not prevent.”
-Richmond City Council member, Dr. Jeff Ritterman

“We see tenants who have moved three to four times a year, from foreclosed property to foreclosed property, losing thousands in security deposits. It goes without saying that this legislation will provide tremendous relief to many of these individuals.”
-Adam Poe, Staff Attorney, Bay Area Legal Aid

“The City of Richmond took an important step yesterday, saying ‘enough is enough’ to banks that are throwing tenants and their families out of their homes and ruining neighborhoods for no good reason. Other California cities should follow Richmond’s lead and pass eviction protection laws. This is a cost effective way for cities to prevent displacement and blight after foreclosure.”
-Dean Preston, Executive Director of Tenants Together, California’s Statewide Organization for Renters’ Rights

 

On June 16th, before a packed chamber, the Richmond City Council became the second city in California to enact a “Just Cause” ordinance protecting tenants from unfair evictions from foreclosed homes. Passed unanimously, the ordinance spells out 12 specific circumstances where eviction is allowed, none of which is foreclosure. The ordinance provides an affirmative defense for a tenant in an unlawful detainer action, contains retaliatory eviction protection and it requires payment of a relocation fee in the amount of two times the monthly rent plus $1000.

Homeowners are not the only victim’s of the foreclosure crisis. Renters are often overlooked who, by no fault of their own, face eviction. In Richmond, 50% of residents are renters, and with 2,000 current foreclosures and a 30% increase predicted over the next year, there is a crisis. With an eviction on record, residents have difficulty finding new homes and many families have become homeless. The West Contra Costs County School District now reports 850 homeless students, a 44% increase from just 2 years ago.

Introduced by Council Member Dr. Jeff Ritterman, Labor, faith and community groups led by Richmond Vision and Richmond Equitable Development Initiative (REDI)* have long advocated for “Just Cause” tenant protection legislation. Art Hatchett, Co-chair of Richmond Vision and Executive Director of GRIP (The Greater Richmond Interfaith Project), which provides homeless housing and services in West Contra Costa County, expressed satisfaction with the passage. “We’ve seen a significant increase in our communities’ homeless population, both individuals and families. As of July 1, 2009, the new Just Cause legislation will help keep individuals and families who are renters from becoming homeless and victims of unfair evictions.”

This ordinance gained momentum this past March when The Richmond Equitable Development Initiative (REDI) held a community town hall meeting to present their comprehensive housing platform to keep families in their homes. Over 500 community members attended. Their housing platform included: a “Just Cause” eviction ordinance, policies to stabilize and revitalize Richmond neighborhoods, create more long-term affordable housing and put Richmond residents back to work rebuilding Richmond. Since the town hall, REDI community leaders have been meeting with council members and city staff to implement these policies.

The passage of the “Just Cause” ordinance is the first policy initiative to come out of these efforts and Council Member Ritterman has proclaimed, “I hope this will be one of many measures we take as a city to address this crisis. It’s bad for the city to allow neighborhoods to deteriorate and I believe elected officials have an obligation to protect the most vulnerable among us.”

What’s an Allonge anyway ??? thanks Jake

Do We Have a Fraud Problem? The Case of the Mysteriously Appearing Allonge posted by Adam Levitin I have generally been willing to give mortgage servicers, servicer support shops (like LPS), and foreclosure attorneys the benefit of the doubt when it comes to documentation irregularities (to put it mildly) in foreclosures. My working assumption up to this point has been that the documentation problems have been a function of corner cutting with securitization based on the assumptions that (1) the loans would perform better than they did and (2) those that defaulted would result in default judgments in foreclosure, so no one would ever notice the problems. I’ve also assumed that lack of capacity has played a critical role in problems in the default management chain–the system is held together by Scotch tape at this point. In other words, the problems in the system weren’t caused by malice.

I got some grief about this from people down in the trenches when I posted a comment about this a couple of weeks ago. And I was tempted to write it off as a function of litigants being too close to their cases. But a document I read today is making me rethink these assumptions. Here is an order from a Florida court that makes me start to wonder if we might have a serious fraud problem going on with blank endorsements and allonges.

To be sure, one data point isn’t an epidemic, but servicing is an industry where things tend to happen en masse. As Obi-Wan Kenobi

explains:

Obi-Wan: “A fighter that size couldn’t get this deep into space on its own.”

Luke: “Yeah, he must have gotten lost, been part of a convoy or something.”

Han: “Well, he ain’t going to be around long enough to tell anyone about us.”

Luke: “Look at him. He’s headed for that small moon.”

Han: “I think I can get him before he gets there. He’s almost in range.”

Obi-Wan: “That’s no moon. It’s a space station.”

Han: “It’s too big to be a space station.”

Luke: “I have a very bad feeling about this.”

Obi-Wan: “Turn the ship around.”

Han: “Yeah, I think your right. Full reverse! Chewie, lock in the auxiliary power.”

To start with, let me explain endorsements and allonges. And endorsement (or indorsement) is a signature on an instrument for the purpose of transferring rights in the instrument. (See UCC 3-204 for more details.) They work the same with notes as with checks and are governed by the same law. There are three types of endorsements. There are endorsements in blank–just your signature, nothing more (e.g., Adam J. Levitin), and special endorsements (Adam J. Levitin to Katherine Porter), and restrictive endorsements (Adam J. Levitin, for deposit only in Safe’n’Sound Bank).

A blank endorsement (by the instrument’s payee, of course) turns the instrument into bearer paper. That means it’s like cash. Whoever physically possesses the note, including a theif, can enforce it against the maker. And as a recent 9th Circuit BAP opinion, In re Veal (about which I hope to blog more) noted (fn 25), bearer paper has long had lots of nefarious associations (I would add Godfather III to the bearer bonds movie list in that note). In contrast, a special endorsement limits who can enforce the note; only the specially noted endorsee has rights in that note and can enforce it (they could transfer it to someone else, but that’s another matter).

Now allonges.  An allonge isn’t a delicious throat-soothing lozenge from Switzerland. It’s a piece of paper that goes a-long with the note. The allonge is basically an overflow sheet for extra endorsements. Frankly, no one should ever be using an allonge if there is room for an endorsement on the original note. Yes, it’s easier to print on the allonge, but allonges create evidentiary problems, namely that it can be difficult to tell when the endorsement on the allonge was done or if the allonge is even meant to go with that particular note. And I’m not sure what the evidentiary weight of an affidavit or testimony on this point could possibly be. Unless the affiant or witness has some basis for knowing that this particular allonge goes with this particular note (“I distinctly remember the peculiar coffee stain on both pieces of paper–it looked like Karl Malden’s nose”), then there’s little probative value from the affidavit or testimony.

The law on allonges is not particularly well-developed. The 1951 version of the UCC, in force in NY and South Carolina (I think), covers them in section 3-202, but the current version does not. The old version of the UCC required that allonges be “firmly attached.”

That requirement seems to have been fulfilled via pasting or gluing and maybe stapling. Query whether paper clip or rubber band or simply in the same folder will suffice. I’m not sure why any of them would.

None of these methods answers the question of when the allonge was created. I can paste or rubberband the day of trial. There’s a smidgen of state law on this, but it hasn’t been a major issue previously.

Which brings us to BONY v. Faulk. In this case, the foreclosure filing included a 3 page note. The note lacked endorsements connecting the originator to BONY as trustee for the foreclosing securitziation trust. This set up a motion to dismiss on the grounds that BONY didn’t have any right to do anything–it had no connection with the note.

But wait!  Suddenly BONY’s attorney tells the court that she is in possession of the fourth page of the note, which includes a blank endorsement. Puhlease…  What a ridiculous deus ex machina ending.

Are we do believe that this attorney filed 3 pages of the note, but not the 4th? If so, I sure hope she’s not billing for that screw up.

But here’s what perplexes me. Suppose that an allonge is produced. How are we going to know when that allonge was created or that it even relates to the note in question? (Just so everyone’s clear–if the endorsement were created later, then BONY as trustee for CWABS 2006-13 trust had no standing at the time the action was filed because the trust didn’t own the note at that time.) How do we know that this attorney isn’t engaged in fraud on the court (and a host of other violations of state and federal law)?

And this isn’t even getting into the question of whether the PSA at issue requires specific endorsements, not endorsements in blank. As it turns out that’s a problem in this particular case. Here’s the PSA for CWABS 2006-13 trust.  Section 2.01(g)(1) provides that the Depositor deliver to the trustee:

the original Mortgage Note, endorsed by manual of facsimile signature in blank in the following form: “Pay to the order of _______ without recourse”, with all intervening endorsements that show a complete chain of endorsement from the originator to the Person endorsing the Mortgage Note…

As an aside, let me point out that “endorsement…in blank” does not mean endorsed in blank in the UCC sense. In the UCC sense, endorsed in blank simply means the endorser’s signature, just as you might put on the back of a check before depositing it. Here, it means endorsed with a blank for the endorsee’s name.  Critically, this PSA requires a complete chain of endorsement with all intervening endorsements. A single endorsement in blank ain’t gonna do it if this PSA means anything. And there were a lot of MBS investors who assumed that it was going to be followed.

I think this PSA just puts the attorney in an even worse place. The only way there should be a separate blank endorsement page is if there was non-compliance with the PSA. Are we really to believe that happened? (Well, yes, but the attorney can’t really argue that BONY generally doesn’t comply with its duties as trustee, now can she?)

We’ve already seen pretty shocking evidence of documentation fraud in foreclosures.  Remember that the robosigning scandal was the by-product of depositions that aimed to show backdating of assignments to trusts. The shame of the robosigning press coverage was that it focused on some shmucks signing 10,000 assignments in a month–which didn’t necessarily produce any harm itself, just carpal tunnel syndrome–and overlooked the really quite serious criminal problem of the backdating of assignments. The depositions showed pretty clearly that there was backdating–the notarizations were by notaries who didn’t have their commissions until a couple of years subsequent or were done on Christmas Day, etc.

Document fraud in the mortgage industry is nothing new. It’s appeared in all flavors and sizes for centuries. The laws of negotiability are first and foremost evidentiary laws meant to protect against fraud.

Negotiable instruments are reified obligations–the instrument itself is the right to payment (UCC 3-203, cmt. 1).  That means that one can sue on either the instrument or on the underlying contract (but Statute of Frauds might require some writing for enforceability). I hope that courts will recognize that real serious potential for fraud that exists when one combines endorsements in blank with allonges and start demanding (1) that the complete note be filed with the original filing and (2) that anyone using an allonge prove that the allonge goes with the note in question. I think we’ve passed the point were there can be any assumptions of good faith and fair dealing.

I’d be curious to hear if any foreclosure defense attorneys have been pushing on the evidentiary status of allonges–namely what proof beyond a staple or the like is there that an allonge goes with a particular mortgage and wasn’t just photocopied from another one.

And yes, this sort of evidentiary scrutiny adds huge costs to the system. But it would be pretty easily avoided if PSAs had been followed in the first place–there was a reason that they required complete, unbroken chains of endorsement.

June 16, 2011 at 8:43 PM in Mortgage Debt & Home Equity

Adam J. Levitin

Associate Professor of Law

A.B. Harvard; A.M., M.Phil. Columbia; J.D. Harvard

Address:

600 New Jersey Avenue N.W.

Washington, DC 20001-2075

Office Location:  Hotung 6022

Office Phone:  202.662.9234

Office Fax:  202.662.4030

e-mail (preferred contact method): adam.levitin<at>law.georgetown.edu

(replace the <at> with the @ sign in the e-mail)

Assistant:  Terican Gross

Phone:  202.662.9485

Blog:  http://www.creditslips.org

*Please note that I do not provide personal legal advice, including on credit card and mortgage foreclosure issues.*

Biography

Professor Levitin specializes in bankruptcy, commercial law, and financial regulation.  His research focuses on consumer and housing finance, payments, and debt restructuring.

Before joining the Georgetown faculty, Professor Levitin practiced in the Business Finance & Restructuring Department of Weil, Gotshal & Manges LLP in New York and served as law clerk to the Honorable Jane Richards Roth on the United States Court of Appeals for the Third Circuit.  While at Georgetown, he has served as Special Counsel to the Congressional Oversight Panel and as the Robert Zinman Scholar in Residence at the American Bankruptcy Institute.

Professor Levitin holds a J.D. from Harvard Law School, an M.Phil and an A.M. from Columbia University, and an A.B. from Harvard College, all with honors.

—

Jake Naumer

Resolution Advisors

3187 Morgan Ford

St Louis Missouri 63116

314 961 7600

Fax Voice Mail 314 754 9086

2924 unconstitutional ???

2924 unconstitutional  Check out this pro per complaint they raise some interesting issues.

PJATSI+Supplemental+Complaint+March+25+2011

current rulings on wrongful foreclosure

20.  TIME:  9:00   CASE#: MSC11-00162

 CASE NAME: CHRISTINA PENNES  vs.  PNC MORTGAGE

 HEARING ON DEMURRER TO COMPLAINT of PENNES

 FILED BY PNC BANK, NATIONAL ASSOCIATION

* TENTATIVE RULING: *

 

 

Defendant PNC Bank, N.A.’s Demurrer to each cause of action within the Complaint is sustained with leave to amend in part and without leave to amend in part. (Cal. Code Civ. Proc., section 430.10, subd. (e).)

 

1st cause of action for Cancellation of Instruments (Assignment of Deed of Trust), 2nd cause of action for Cancellation of Instruments (Notice of Default), and  3rd cause of action for Cancellation of Instruments (Notice of Default), sustained with leave to amend. Actions to remove a cloud on title, under Civil Code section 3412, are equitable in nature, and differ from actions to quiet title in that they are aimed at a particular instrument or piece of evidence. Reiner v. Danial (1989) 211 Cal. App. 3d 682, 689.  To state a cause of action to remove a cloud, instead of pleading in general terms that the defendant claims an adverse interest, the plaintiff must allege, inter alia, facts showing actual invalidity of the apparently valid instrument or piece of evidence. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, sections 671-674, pp. 97-99.) Plaintiffs have not met this burden. See Complaint par 20, Ex D. See also, Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4th 1149 1154-55 [under Civ C  section 2924(a)(1), a trustee, mortgagee, or beneficiary, or any of their authorized agents, may initiate the foreclosure process. Nowhere, however, does the statute provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized, and the court saw no ground for implying such an action, which would have been inconsistent with the policy behind nonjudicial foreclosure of providing a quick, inexpensive and efficient remedy.]

 

4th cause of action for wrongful foreclosure, sustained with leave to amend. The elements of a common-law cause of action for damages for wrongful foreclosure are:  (1) Trustee or mortgagee caused an illegal, fraudulent or willfully oppressive sale of real property; (2) pursuant to a power of sale contained in a mortgage or deed of trust; and (3) the Trustor or mortgagor sustained damages. (Munger v. Moore (1970) 11 Cal. App. 3d 1, 7; see 4 Witkin, Sum. Of Cal. Law (10th ed. 2005) Secured Transactions in Real Property, §168.)

The Plaintiffs  do not allege that the foreclosure sale has taken place. Thus, Plaintiffs fail to plead a necessary element of this cause of action.

 

5th cause of action for violation of UCL,  and 8th caused of action for violation of Rosenthal Debt Collection Practices Act [Civ C section 1788], sustained without leave to amend. California’s Unfair Competition Law (UCL) prohibits any unlawful, unfair or fraudulent business practice. (B&P Code section 17200.)  The broad scope of the statute encompasses both anti-competitive business practices and practices injurious to consumers. (Cel‑Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)

This cause of action is based in part upon the 8th cause of action for violation of the Rosenthal Debt Collection Practices Act [Civ C § 1788.]

The Rosenthal Debt Collection Practices Act [RDCPA] prohibits debt collectors from engaging in abusive, deceptive and unfair practices in the collection of consumer debts.  (Civ. Code  section 1788, et. Seq.)  Consumer debt is statutorily defined as money, property or the equivalent owed by reason of a consumer credit transaction, which in turn is defined as a transaction in which property, etc. is acquired on credit for personal, family or household purposes. Cal. Civ. Code  section 1788.2(b), (e)-(f), (h).  There are no California State Court opinions to date applying this statute to the enforcement of deeds of trust or to foreclosure proceedings.

 

6th cause of action for quiet title, sustained with leave to amend:

To state a claim for quiet title,  the complaint shall be verified. CCP section 761.020.  The Complaint is not verified.  Additionally, in order to quiet title, plaintiff  must tender the entire outstanding principal.  See, e.g., Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477 [Plaintiff cannot quiet title without discharging his debt; the cloud upon his title persists until the debt is paid.]

 

7th cause of action for rescission, sustained without leave to amend. To state a claim for contract rescission, plaintiff must allege some grounds for rescission-fraud, mistake, coercion, etc. (Civ. Code, § 1689, subd. (b).) plaintiffs do not meet hits pleading burden.

Plaintiffs Opposition does not address this cause of action, therefore, they concede that it has no merit.

 

9th cause of action for  violation of Civ C § 2923.5, sustained with leave to amend:

Actual contact is not required. See, Civil Code section 2923.59(g). Additionally, the only remedy for a Section 2923.5 violation is a postponement of the foreclosure sale to enable the defendants to comply with the requirements of the statute — not a claim for damages. (Mabry v. Superior Court (2010) 185 Cal. App. 4th 208, 235.)

The Plaintiffs do not allege that a foreclosure sale date has been noticed.

Defendant’s Request for Judicial Notice is granted. (Evid. Code, section 452(c)[public records].

 

In light of the ruling on the general demurrer, the special demurrer is moot. (Cal. Code Civ. Proc., section 430.10, subd. (f).)
 
 21.  TIME:  9:00   CASE#: MSC11-00162

 CASE NAME: CHRISTINA PENNES  vs.  PNC MORTGAGE

 HEARING ON MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT

 FILED BY PNC BANK, NATIONAL ASSOCIATION

* TENTATIVE RULING: *

 

In llight of the ruling on the general demurrer, the Motion to Strike is moot.

 

Principal reduction success !!!

Filipino Homeowners Get Principal Reduction Relief

Written by admin Featured News, News Highlights, Top StoriesJun 8, 2011

By Henni Espinosa, ABS-CBN North America Bureau

June 8, 2011

UNION CITY, Calif. – Amy and Peter Asi, who lost both their jobs in 2009, almost gave up on their home.  For two years, they had asked their lender, Wachovia, to modify their loan and lower their home’s principal.

They hired the help of Attorney Timothy McCandless.  Eventually, the amount of the Asi’s principal loan was reduced by 29%.  Their lender cut more than $117,000 off their debt.

Peter said they can now breathe a huge sigh of relief.  He said, “We’re already struggling to pay for this house, which is underwater.  This is a big help.”

Atty. McCandless said since the Obama administration has put pressure on lenders to reduce the principals of struggling homeowners, lenders have been receptive…because they see how it will benefit them, as opposed to foreclosing on homes.

McCandless said, “If they put all these hours on the market all at once — values are going to go down faster and further.  It’s in their best interest to work with the homeowners rather than foreclosing, evicting.  It’s very destrucive to the community.”

McCandless said a third of the the homes in America are now underwater in value.  He said lenders now see principal reduction as a win-win situation.

He said, “They look at the appraised value and the cost it’s going to take to liquidate the home — versus working with the homeowner.  Values continue to drop and it’s making more and more sense for banks to work with the homeowners.”

McCandless said principal reduction is a more viable option for struggling homeowners than loan modification…because homeowners are encouraged to pay on time when they know their homes have value.

At its peak, the Asi’s home was valued at $600,000.  It is now down to $400,000.

Now that the bank reduced the amount of their loan to reflect current values, they said they’re more encouraged to pay…especially now that they have full-time jobs.

Amy said, “Without principal reduction, you feel like there’s no sense in paying.  But with it, homeowners feel motivated to pay.”

Not only was their principal reduced, the Asi’s loan was permanently modified from $4,000 a month to $2,800 a month.

The Asi’s principal reduction has a condition.  They have to pay monthly payments on time for the next three years — before the $177,000 can be fully taken out of their loan — not a problem for these homeowners who are now confident in the value of their home.

You may contact Henni Espinosa at henni_espinosa@abs-cbn.com for more information.

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Paragraph 22 in ALL Deeds of Trust lenders don’t follow the contract

BOMBSHELL- ANOTHER 2ND DCA SMACKDOWN- KONSULIAN! June 1st, 2011 Paragraph 22 of almost every mortgage contains a provision that requires the plaintiff to provide notice and an opportunity to cure the default prior to foreclosure. The principle behind this paragraph and the right to cure is not just a helpful little piece for the defendant, the default and cure provisions recited are an essential element of the entire legal process of foreclosure, deeply rooted in our American Jurisprudence. This is a subject that is discussed in some length in the recent Cardozo Law Review Article on Foreclosures. (attached) That’s all some deep stuff, but here’s where the rubber behind all that hits the road…in an opinion just released today….. Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). Further, Busey did not refute Konsulian’s defenses nor did it establish that Konsulian’s defenses were legally insufficient. Because Busey did not prove that it met the conditions precedent to filing for foreclosure, it failed to meet its burden, and it is not entitled to judgment as a matter of law. In addition to being prematurely filed, Konsulian claims that the acceleration letter failed to state the default as required by the mortgage terms. We agree and reverse. Now there are default letters floating all around in Foreclosureland, but I doubt that many of them comply with the express terms of the contract the banks created…..

Foreclosure-Gate Screw Tightens: Banks Face $17 Billion in Suits Over Foreclosures

Posted on May 26, 2011 by Neil Garfield

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

EDITOR’S COMMENT: Here is our problem writ large. The commentary written by Shedlock (see below) is basically on the side of punishing the banks for their wrongdoing, but not giving any relief to borrowers. The logic behind the position is that anyone who does not pay their mortgage should expect to lose their home. On its face, it would seem that nobody could reasonably argue to the contrary. The problem we face is the assumption behind that sentiment. The presumption is that the payments were due, that the creditor was not getting paid, and that the homeowner should lose the house for which they paid a “stupid price” — a slam at homeowners who accepted the lender’s appraisal of the property.

My premise goes deeper than the shallow waters of Shedlock’s position, who clearly represents the feeling of a majority of people who just take a quick glance at the problem. My premise is that anyone who has a debt that is due has the responsibility to pay it to the party to whom it is due, less any legally meritorious defenses for bad behavior on the part of those who induced him into the transaction.

So if you enter into a transaction where you get funded for $100,000, you have agreed to repay that $100,000. If you have a claim against the party who wants to enforce the obligation, then you should repay the net amount due after computation of damages for both sides. And if the amount due from the “enforcer” (pretender) is more than the amount claimed by the enforcer, there is no debt to pay from the borrower’s perspective. The borrower in that scenario is owed money which is an unsecured debt. I don’t think anyone could reasonably argue with that position either.

The first issue, though is whether the debt is due, and to whom. The debt might not be due at all if the creditor has received, directly or indirectly, payment or settlement from bailouts, insurance, credit default swaps, guarantees, etc. Shedlock’s mistake is the same as most people — assuming that because the homeowner stopped paying, there must be a default. In ordinary times with ordinary mortgage lending practices that would be true. In the context of the illusion of securitization and following the actual money trail, it is not true.

At the time of the declaration of default, the servicer is probably continuing to make the payments to the creditor, which means that from the creditor’s perspective, the obligation is NOT in default. Because the securitization scheme involves multiple obligors on the obligation, only one of which is the homeowner, it is not possible to determine a default unless one gets an accounting from all levels of the securitization chain. If the servicer is making the payments, then the original obligation to the creditor is NOT in default, but the servicer MIGHT have a claim for restitution against the homeowner for making his payment — but that claim is not secured and not  liquidated unless and until the servicer proves the actual money trial. So my premise is based upon making decisions based upon the actual facts rather than a set of incorrect presumptions.

The most serious defect in Shedlock’s position is that taken at face value, it would allow anyone to take the house away regardless of whether or not they are the creditor. Assuming the creditor is the investor-lender. Just because the actual lender refuses to enforce the obligation, and the obligation is “perceived” as due, does not give a license to ANYONE with some knowledge to make the claim in lieu of the real creditor. That is insane. If that were the law, then our marketplace would be filled with uncertainty inasmuch as it would virtually guarantee multiple claims on the same debt by multiple parties. In a race to the courthouse the first one to initiate proceedings to enforce the obligation would arguably be the winner — even though they never loaned any money and never purchased the obligation — and even though the obligation has potentially been paid in full or is being paid current by the servicer. Nobody can reasonably argue with this point either.

The last major point I would make is that Shedlock presumes the original transaction was properly documented and recorded in the form and content required by law. This is not the case in virtually all securitized loans. The documentation shows that homeowner-borrower (HB) was funded by originating lender (OL). In truth OL was merely acting as stand-in for undisclosed parties contrary to federal and state laws. The money trail clearly shows that the investor-lender (IL) was the source of the funds and was the intended beneficiary of the transaction.

So the documentation shows a transaction (HB-OL) that never existed since OL did not lend or otherwise even handle the money involved in the funding of the loan, most of which work was done by the closing or escrow agent. The documentation should have identified IL as the lender but didn’t. In fact, there is no documentation in which both IL and HB appear as parties, neither one actually knowing about the other nor the terms of the transaction by which IL advanced money and HB received the benefit of money.

And here is the rub: the investors don’t want any part of the predatory lending practices and faulty underwriting that was custom and practice in the industry during this mortgage mess, so they seek no remedy from the homeowner. IL does not want to limit itself and collect from HB because IL knows that the investment banker who sold the mortgage bonds didn’t use all the money for funding mortgages. Instead they used the money to claim fees and profits part of which funded bets against the very loans that they said they were selling to the IL but in fact never transferred from OL.

If  Shedlock’s premise were accepted, then the pretender lenders score a great victory for themselves at the expense of the IL whose money they used to fund the scheme and the HB whose obligation has been partially or entirely extinguished by trillions of dollars in payments received by the securitized parties on behalf of the IL but which was neither reported nor paid to IL. IL therefore has chosen to sue not the homeowner, where the damages would be reduced to near zero, but rather to sue the investment bank, where the damages are 100% of the money they advanced. If they went for the HB, they would end up with at best a home worth a small fraction of fraudulent appraisal OL used to get HB’s signature. Both the loan amount and the security for the loan would already be substantially lower than the money advanced by IL. So given that they are looking at 20 cents on the dollar if they go after the HB, less offset for predatory lending claims, they have chosen to sue the investment banker for 100 cents on the dollar.

The void created by the choice of IL not to enforce against HB has been filled with pretender lenders who see an opportunity to gain a free house. It is the banks who have created the choice of a free house (or HB relief for the borrower) or a free house for the pretender lenders. Given the equities and the fact that all of the fees and profits of the securitizers and pretenders are ill-gotten based upon fraudulent statements it hardly seems right to say that the collateral benefit from all this should flow to the banks rather than homeowners who were duped into the transaction to begin with.

from Mish Shedlock, http://globaleconomicanalysis.blogspot.com

Foreclosure-Gate Screw Tightens: Banks Face $17 Billion in Suits Over Foreclosures; Common Sense Says $5 Billion is Very Generous

State attorneys general are not happy with a $5 billion offer by major banks to settle lawsuits regarding robo-foreclosures and other alleged grievances. Some officials want as much as $20 billion. The compromise threat is on the high end.

Please consider Banks Face $17 Billion in Suits Over Foreclosures

State attorneys general told five of the nation’s largest banks on Tuesday they face a potential liability of at least $17 billion in civil lawsuits if a settlement isn’t reached to address improper foreclosure practices, according to people familiar with the matter.

The figure doesn’t cover additional billions of dollars in potential claims from federal agencies such as the Department of Housing and Urban Development and the Justice Department. State and federal officials haven’t proposed a specific comprehensive settlement figure, but Tuesday’s discussions represented the first effort to formally quantify potential liability.

Banks have proposed a $5 billion settlement that would be used to compensate any borrowers previously wronged in the foreclosure process and provide transition assistance for borrowers who are ousted from their homes. Federal and state officials have dismissed that as insufficient. Some officials have pushed for a total price tag of more than $20 billion to resolve foreclosure-handling abuses that surfaced last fall.

The U.S. Trustee Program, a part of the Justice Department that oversees bankruptcy cases, has asked for an additional $500 million to $1 billion in penalties, according to people familiar with the matter. Officials of the unit have raised questions in several cases over the authenticity of foreclosure documents.

Banks have argued that their problems are largely technical and that few if any borrowers have faced wrongful foreclosures. State and federal officials have faulted mortgage companies for not hiring enough staff to provide assistance to millions of borrowers that have fallen behind on their mortgages.

The latest development comes as state and federal officials are intensifying their scrutiny of other parts of the mortgage machine. Attorneys general in California and New York have announced wide-ranging mortgage investigations.

What are the Damages?

This is what I want to know:

  1. How many people lost their home to foreclosure out of an error? By error I mean the wrong person, a home with no mortgage, or a major procedural error.
  2. How many people think they deserve a free house and clear or a principal reduction over “show me the note” nonsense or other problems including unemployment?
  3. How many people did banks string along for many months with promises of work-outs, where the person paid their mortgage for months, then lost their home.

Throw Category #2 in the Ash Can

I am sure category #2 is the largest. Throw those cases in the ash can where they belong.

No one want to admit they were stupid. Yet people paid stupid prices for homes. Others were unlucky. Some lost their jobs. Even then, one can ask “did you have a year’s worth of living expenses saved up in the bank, in case you lost your job?” Regardless of the answer, banks should not be on the hook for people losing their jobs or having medical problems.

Here’s the cold simple truth: If you do not pay your mortgage, it is reasonable to expect to lose your home. There is no other realistic way of looking at it. Robo-signing may not be right, but it is irrelevant.

Category #1 the Real Problem

I have deep sympathy for those in cases where banks foreclosed on the wrong home, the wrong address, or on homes with no mortgage at all. Those people deserve their home paid free and clear and some huge penalty on top of it.

I suspect the number of such cases is minuscule. They receive enormous publicity but is the number 10,000? 5,000? 500? or 50? I suspect the number is far closer to the lower end than the higher end. 50 might easily be on the high side.

Whatever the number is, banks should pay mightily and punitively for it. The money should go to those wronged, not to the states. Even with massive penalties I doubt the total would come close to $200 million.

Category 3 is Where the Uncertainty Is

I do not know how big the “strung along” category is, but the only ones in this category who were genuinely harmed to any significant degree are those who continued to make mortgage payments, strung along on a promise, when instead they could have and should have walked away.

How many is that? You tell me. However, the harm is easy to quantify. The harm is extra payments people made (if any), while the banks engaged in deceptive practices or were simply understaffed.

Assume banks engaged in deceptive practices and people made extra payments instead of walking away. Would those extra payments amount to as much as $1 billion? I rather doubt it.

$5 Billion is Very Generous

What is a valid penalty? $4 billion seems like a lot of money to me. That would be a 400% penalty if the total wrong-doing amounted to $1 billion which I doubt.

The sad truth of the matter is we have a full scale witch-hunt over robo-signing and other alleged grievances even though there was little actual damage caused by banks.

If you disagree then total up the damages. However, I insist you start from two essential points.

  1. If you do not pay your mortgage, it is reasonable to expect to lose your home.
  2. Robo-signing may not be right, but it is irrelevant as per point #1.

So total up the damages, add a huge penalty, and let me know what you come up with.

No doubt, many will accuse me of siding with banks. The reality is I am siding with common sense. No one fought against bank bailouts harder than I did. Banks should have been allowed to go under.

Unfortunately they were bailed out. However, two wrongs do not make a right.

I am all for punishing banks provided the punishment is based on damages rather than the widespread belief “we need to stick it to the banks”.

tila statute of limitations

Statutes of Limitations for TILA and RESPA Claims – For TILA
claims, the statute of limitations for actions for damages runs one
year after the loan origination.  15 U.S.C. § 1640(e).  For actions
seeking rescission, the statute of limitations is three years from
loan origination.  15 U.S.C. § 1635(f).  For RESPA, actions brought
for lack of notice of change of loan servicer have a statute of
limitation of three years from the date of the occurrence, and actions
brought for payment of kickbacks for real estate settlement services,
or the conditioning of the sale on selection of certain title services
have a statute of limitations of one year from the date of the
occurrence.  12 U.S.C. § 2614.

Ibanez does it apply in california

Applicability of US Bank v. Ibanez – The Ibanez case, 458
Mass. 637 (January 7, 2011), does not appear to assist Plaintiff in
this action.  First, the Court notes that this case was decided by the
Massachusetts Supreme Court, such that it is persuasive authority, and
not binding authority.  Second, the procedural posture in this case is
different than that found in a case challenging a non-judicial
foreclosure in California.  In Ibanez, the lender brought suit in the
trial court to quiet title to the property after the foreclosure sale,
with the intent of having its title recognized (essentially validating
the trustee’s sale).  As the plaintiff, the lender was required to
show it had the power and authority to foreclose, which is
established, in part, by showing that it was the holder of the
promissory note.  In this action, where the homeowner is in the role
of the plaintiff challenging the non-judicial foreclosure, the lender
need not establish that it holds the note.

res judicata effect of prior unlawful detainer action

Res Judicata Effect of Prior UD Action – Issues of title are
very rarely tried in an unlawful detainer action and moving party has
failed to meet the burden of demonstrating that the title issue was
fully and fairly adjudicated in the underlying unlawful detainer.
Vella v. Hudgins, 20 Cal. 3d 251, 257 (1977).  The burden of proving
the elements of res judicata is on the party asserting it.  Id. The
Malkoskie case is distinguishable because, there, the unlimited
jurisdiction judge was convinced that the title issue was somehow
fully resolved by the stipulated judgment entered in the unlawful
detainer court.  Malkoskie v. Option One Mortg. Corp., 188 Cal. App.
4th 968, 972 (2010).

Promissory Estoppel

Promissory Estoppel – “The doctrine of promissory estoppel
makes a promise binding under certain circumstances, without
consideration in the usual sense of something bargained for and given
in exchange. Under this doctrine a promisor is bound when he should
reasonably expect a substantial change of position, either by act or
forbearance, in reliance on his promise, if injustice can be avoided
only by its enforcement. The vital principle is that he who by his
language or conduct leads another to do what he would not otherwise
have done shall not subject such person to loss or injury by
disappointing the expectations upon which he acted. In such a case,
although no consideration or benefit accrues to the person making the
promise, he is the author or promoter of the very condition of affairs
which stands in his way; and when this plainly appears, it is most
equitable that the court should say that they shall so stand.”  Garcia
v. World Sav., FSB, 183 Cal. App. 4th 1031, 1039-1041 (2010)
(citations quotations and footnotes omitted).

argumment only is not enough

Unargued Points – “Contentions are waived when a party fails
to support them with reasoned argument and citations to authority.”
Moulton Niguel Water Dist. v. Colombo, 111 Cal. App. 4th 1210, 1215
(2003).

If opposed service isues are waived

Responding on the Merits Waives Any Service Defect – “It is
well settled that the appearance of a party at the hearing of a motion
and his or her opposition to the motion on its merits is a waiver of
any defects or irregularities in the notice of the motion.”  Tate v.
Superior Court, 45 Cal. App. 3d 925, 930 (1975) (citations omitted).

ok what is emotional distress

Cause of Action for Intentional Infliction of Emotional
Distress –  Collection of amounts due under a loan or restructuring a
loan in a way that remains difficult for the borrower to repay is not
“outrageous” conduct.  Price v. Wells Fargo Bank, 213 Cal. App. 3d
465, 486 (1989). Perhaps its when a Marshall is making a 72 year old woman disrobe

when he is evicting the woman. She asks if she can get some cloths on and he watches as

she disrobes to put on her cloths. All this on behalf of the bank. Maybe that’s emotional distress.

I don’t mean to be salacious but this happened to a client of mine.

17200 Unfair Business Practices maybe thats what it is

– Cause of Action for Violation of Bus. & Prof. Code § 17200 –
“The UCL does not proscribe specific activities, but broadly prohibits
any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising. The UCL governs
anti-competitive business practices as well as injuries to consumers,
and has as a major purpose the preservation of fair business
competition. By proscribing “any unlawful business practice,” section
17200 “borrows” violations of other laws and treats them as unlawful
practices that the unfair competition law makes independently
actionable.  Because section 17200 is written in the disjunctive, it
establishes three varieties of unfair competition-acts or practices
which are unlawful, or unfair, or fraudulent. In other words, a
practice is prohibited as “unfair” or “deceptive” even if not
“unlawful” and vice versa.”  Puentes v. Wells Fargo Home Mortg., Inc.,
160 Cal. App. 4th 638, 643-644 (2008) (citations and quotations
omitted).

“Unfair” Prong

[A]ny finding of unfairness to competitors under section 17200 [must]
be tethered to some legislatively declared policy or proof of some
actual or threatened impact on competition. We thus adopt the
following test: When a plaintiff who claims to have suffered injury
from a direct competitor’s “unfair” act or practice invokes section
17200, the word “unfair” in that section means conduct that threatens
an incipient violation of an antitrust law, or violates the policy or
spirit of one of those laws because its effects are comparable to or
the same as a violation of the law, or otherwise significantly
threatens or harms competition.

Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.,
20 Cal. 4th 163, 186-187 (1999).

“Fraudulent” Prong

The term “fraudulent” as used in section 17200 does not refer to the
common law tort of fraud but only requires a showing members of the
public are likely to be deceived. Unless the challenged conduct
targets a particular disadvantaged or vulnerable group, it is judged
by the effect it would have on a reasonable consumer.

Puentes, 160 Cal. App. 4th at 645 (citations and quotations
omitted).

“Unlawful” Prong

By proscribing “any unlawful” business practice, Business and
Professions Code section 17200 “borrows” violations of other laws and
treats them as unlawful practices that the UCL makes independently
actionable. An unlawful business practice under Business and
Professions Code section 17200 is an act or practice, committed
pursuant to business activity, that is at the same time forbidden by
law. Virtually any law -federal, state or local – can serve as a
predicate for an action under Business and Professions Code section
17200.

Hale v. Sharp Healthcare, 183 Cal. App. 4th 1373, 1382-1383 (2010)
(citations and quotations omitted).

“A plaintiff alleging unfair business practices under these statutes
must state with reasonable particularity the facts supporting the
statutory elements of the violation.”  Khoury v. Maly’s of California,
Inc., 14 Cal. App. 4th 612, 619 (1993) (citations and quotations
omitted).

Tender or if I could tender I wouldn’t be filing this suit

Tender – A borrower attacking a voidable sale must do equity
by tendering the amount owing under the loan.  The tender rule applies
to all causes of action implicitly integrated with the sale.  Arnolds
Management Corp. v. Eischen, 158 Cal. App. 3d 575, 579 (1984).

Statute of frauds and foreclosure

Statute of Frauds, Forebearance Agreement – An agreement to
forebear from foreclosing on real property under a deed of trust must
be in writing and signed by the party to be charged or it is barred by
the statute of frauds.  Secrest v. Security Nat. Mortg. Loan Trust
2002-2, 167 Cal. App. 4th 544, 552-553 (2008).

Statute of frauds and modification

– Statute of Frauds, Modification of Loan Documents – An
agreement to modify a note secured by a deed of trust must be in
writing signed by the party to be charged, or it is barred by the
statute of frauds.  Secrest v. Security Nat. Mortg. Loan Trust 2002-2,
167 Cal. App. 4th 544, 552-553 (2008). Oh yes but what about the exceptions.

Performance of the contract like if you will provide all you personal financial information

we (the lender)  will postpone the Trustee sale. You provide the information they foreclose anyway.

Possession of the note in California does not apply the whole UCC fpr that matter does not apply

Possession of the original promissory note – “Under Civil
Code section 2924, no party needs to physically possess the promissory
note.” Sicairos v. NDEX West, LLC, 2009 WL 385855 (S.D. Cal. 2009)
(citing CCC § 2924(a)(1); see also Lomboy v. SCME Mortgage Bankers,
2009 WL 1457738 * 12-13 (N.D. Cal. 2009) (“Under California law, a
trustee need not possess a note in order to initiate foreclosure under
a deed of trust.”).

Bet you didn’t know that the spanish contract translation does not apply to trust deeds

Cause of Action for Violation of Civil Code § 1632 - Section
1632, by its terms, does not apply to loans secured by real property.
CCC § 1632(b).



(a) The Legislature hereby finds and declares all of the

following:

(1) This section was enacted in 1976 to increase consumer

information and protections for the state’s sizeable and growing

Spanish-speaking population.

(2) Since 1976, the state’s population has become increasingly

diverse and the number of Californians who speak languages other than

English as their primary language at home has increased

dramatically.

(3) According to data from the United States Census of 2000, of

the more than 12 million Californians who speak a language other than

English in the home, approximately 4.3 million speak an Asian

dialect or another language other than Spanish. The top five

languages other than English most widely spoken by Californians in

their homes are Spanish, Chinese, Tagalog, Vietnamese, and Korean.

Together, these languages are spoken by approximately 83 percent of

all Californians who speak a language other than English in their

homes.

(b) Any person engaged in a trade or business who negotiates

primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally

or in writing, in the course of entering into any of the following,

shall deliver to the other party to the contract or agreement and

prior to the execution thereof, a translation of the contract or

agreement in the language in which the contract or agreement was

negotiated, which includes a translation of every term and condition

in that contract or agreement:

(1) A contract or agreement subject to the provisions of Title 2

(commencing with Section 1801) of, and Chapter 2b (commencing with

Section 2981) and Chapter 2d (commencing with Section 2985.7) of

Title 14 of, Part 4 of Division 3.

(2) A loan or extension of credit secured other than by real

property, or unsecured, for use primarily for personal, family or

household purposes.

(3) A lease, sublease, rental contract or agreement, or other term

of tenancy contract or agreement, for a period of longer than one

month, covering a dwelling, an apartment, or mobilehome, or other

dwelling unit normally occupied as a residence.

(4) Notwithstanding paragraph (2), a loan or extension of credit

for use primarily for personal, family or household purposes where

the loan or extension of credit is subject to the provisions of

Article 7 (commencing with Section 10240) of Chapter 3 of Part 1 of

Division 4 of the Business and Professions Code, or Division 7

(commencing with Section 18000), or Division 9 (commencing with

Section 22000) of the Financial Code.

(5) Notwithstanding paragraph (2), a reverse mortgage as described

in Chapter 8 (commencing with Section 1923) of Title 4 of Part 4 of

Division 3.

(6) A contract or agreement, containing a statement of fees or

charges, entered into for the purpose of obtaining legal services,

when the person who is engaged in business is currently licensed to

practice law pursuant to Chapter 4 (commencing with Section 6000) of

Division 3 of the Business and Professions Code.

(7) A foreclosure consulting contract subject to Article 1.5

(commencing with Section 2945) of Chapter 2 of Title 14 of Part 4 of

Division 3.

(c) Notwithstanding subdivision (b), for a loan subject to this

part and to Article 7 (commencing with Section 10240) of Chapter 3 of

Part 1 of Division 4 of the Business and Professions Code, the

delivery of a translation of the statement to the borrower required

by Section 10240 of the Business and Professions Code in any of the

languages specified in subdivision (b) in which the contract or

agreement was negotiated, is in compliance with subdivision (b).

(d) At the time and place where a lease, sublease, or rental

contract or agreement described in subdivision (b) is executed,

notice in any of the languages specified in subdivision (b) in which

the contract or agreement was negotiated shall be provided to the

lessee or tenant.

(e) Provision by a supervised financial organization of a

translation of the disclosures required by Regulation M or Regulation

Z, and, if applicable, Division 7 (commencing with Section 18000) or

Division 9 (commencing with Section 22000) of the Financial Code in

any of the languages specified in subdivision (b) in which the

contract or agreement was negotiated, prior to the execution of the

contract or agreement, shall also be deemed in compliance with the

requirements of subdivision (b) with regard to the original contract

or agreement.

(1) “Regulation M” and “Regulation Z” mean any rule, regulation,

or interpretation promulgated by the Board of Governors of the

Federal Reserve System and any interpretation or approval issued by

an official or employee duly authorized by the board to issue

interpretations or approvals dealing with, respectively, consumer

leasing or consumer lending, pursuant to the Federal Truth in Lending

Act, as amended (15 U.S.C. Sec. 1601 et seq.).

(2) As used in this section, “supervised financial organization”

means a bank, savings association as defined in Section 5102 of the

Financial Code, credit union, or holding company, affiliate, or

subsidiary thereof, or any person subject to Article 7 (commencing

with Section 10240) of Chapter 3 of Part 1 of Division 4 of the

Business and Professions Code, or Division 7 (commencing with Section

18000) or Division 9 (commencing with Section 22000) of the

Financial Code.

(f) At the time and place where a contract or agreement described

in paragraph (1) or (2) of subdivision (b) is executed, a notice in

any of the languages specified in subdivision (b) in which the

contract or agreement was negotiated shall be conspicuously displayed

to the effect that the person described in subdivision (b) is

required to provide a contract or agreement in the language in which

the contract or agreement was negotiated, or a translation of the

disclosures required by law in the language in which the contract or

agreement was negotiated, as the case may be. If a person described

in subdivision (b) does business at more than one location or branch,

the requirements of this section shall apply only with respect to

the location or branch at which the language in which the contract or

agreement was negotiated is used.

(g) The term “contract” or “agreement,” as used in this section,

means the document creating the rights and obligations of the parties

and includes any subsequent document making substantial changes in

the rights and obligations of the parties. The term “contract” or

“agreement” does not include any subsequent documents authorized or

contemplated by the original document such as periodic statements,

sales slips or invoices representing purchases made pursuant to a

credit card agreement, a retail installment contract or account or

other revolving sales or loan account, memoranda of purchases in an

add-on sale, or refinancing of a purchase as provided by, or pursuant

to, the original document.

The term “contract” or “agreement” does not include a home

improvement contract as defined in Sections 7151.2 and 7159 of the

Business and Professions Code, nor does it include plans,

specifications, description of work to be done and materials to be

used, or collateral security taken or to be taken for the retail

buyer’s obligation contained in a contract for the installation of

goods by a contractor licensed pursuant to Chapter 9 (commencing with

Section 7000) of Division 3 of the Business and Professions Code, if

the home improvement contract or installation contract is otherwise

a part of a contract described in subdivision (b).

Matters ordinarily incorporated by reference in contracts or

agreements as described in paragraph (3) of subdivision (b),

including, but not limited to, rules and regulations governing a

tenancy and inventories of furnishings to be provided by the person

described in subdivision (b), are not included in the term “contract”

or “agreement.”

(h) This section does not apply to any person engaged in a trade

or business who negotiates primarily in a language other than

English, as described by subdivision (b), if the party with whom he

or she is negotiating is a buyer of goods or services, or receives a

loan or extension of credit, or enters an agreement obligating

himself or herself as a tenant, lessee, or sublessee, or similarly

obligates himself or herself by contract or lease, and the party

negotiates the terms of the contract, lease, or other obligation

through his or her own interpreter.

As used in this subdivision, “his or her own interpreter” means a

person, not a minor, able to speak fluently and read with full

understanding both the English language and any of the languages

specified in subdivision (b) in which the contract or agreement was

negotiated, and who is not employed by, or whose service is made

available through, the person engaged in the trade or business.

(i) Notwithstanding subdivision (b), a translation may retain the

following elements of the executed English-language contract or

agreement without translation: names and titles of individuals and

other persons, addresses, brand names, trade names, trademarks,

registered service marks, full or abbreviated designations of the

make and model of goods or services, alphanumeric codes, numerals,

dollar amounts expressed in numerals, dates, and individual words or

expressions having no generally accepted non-English translation. It

is permissible, but not required, that this translation be signed.

(j) The terms of the contract or agreement which is executed in

the English language shall determine the rights and obligations of

the parties. However, the translation of the contract or the

disclosures required by subdivision (e) in any of the languages

specified in subdivision (b) in which the contract or agreement was

negotiated shall be admissible in evidence only to show that no

contract was entered into because of a substantial difference in the

material terms and conditions of the contract and the translation.

(k) Upon a failure to comply with the provisions of this section,

the person aggrieved may rescind the contract or agreement in the

manner provided by this chapter. When the contract for a consumer

credit sale or consumer lease which has been sold and assigned to a

financial institution is rescinded pursuant to this subdivision, the

consumer shall make restitution to and have restitution made by the

person with whom he or she made the contract, and shall give notice

of rescission to the assignee. Notwithstanding that the contract was

assigned without recourse, the assignment shall be deemed rescinded

and the assignor shall promptly repurchase the contract from the

assignee.

Slander of title maybe thats it

Causes of Action for Slander of Title – The recordation of
the Notice of Default and Notice of Trustee’s Sale are privileged
under CCC § 47, pursuant to CCC § 2924(d)(1), and the recordation of
them cannot support a cause of action for slander of title against the
trustee.  Moreover, “[i]n performing acts required by [the article
governing non-judicial foreclosures], the trustee shall incur no
liability for any good faith error resulting from reliance on
information provided in good faith by the beneficiary regarding the
nature and the amount of the default under the secured obligation,
deed of trust, or mortgage. In performing the acts required by [the
article governing nonjudicial foreclosures], a trustee shall not be
subject to [the Rosenthal Fair Debt Collection Practices Act].”  CCC §
2924(b).

Quiet title by code and verified

Cause of Action to Quiet Title – To assert a cause of action
to quiet title, the complaint must be verified and meet the other
pleading requirements set forth in CCP § 761.020.

The complaint shall be verified and shall include all of the following:

(a)A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.

(b)The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.

(c)The adverse claims to the title of the plaintiff against which a determination is sought.

(d)The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.

(e)A prayer for the determination of the title of the plaintiff against the adverse claims.

Negligence please tell me I have a least have a case in Negligence well maybe

Cause of Action for Negligence – “Under the common law,
banks ordinarily have limited duties to borrowers. Absent special
circumstances, a loan does not establish a fiduciary relationship
between a commercial bank and its debtor. Moreover, for purposes of a
negligence claim, as a general rule, a financial institution owes no
duty of care to a borrower when the institution’s involvement in the
loan transaction does not exceed the scope of its conventional role as
a mere lender of money. As explained in Sierra-Bay Fed. Land Bank
Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 334, 277 Cal.Rptr.
753, “[a] commercial lender is not to be regarded as the guarantor of
a borrower’s success and is not liable for the hardships which may
befall a borrower. It is simply not tortious for a commercial lender
to lend money, take collateral, or to foreclose on collateral when a
debt is not paid. And in this state a commercial lender is privileged
to pursue its own economic interests and may properly assert its
contractual rights.”  Das v. Bank of America, N.A., 186 Cal. App. 4th
727, 740-741 (2010) (citations and quotations omitted).

they breched but my house is worth 300,000 and I owe 600,000 ??? damages!!!

Cause of Action for Breach of Contract – “A cause of action
for damages for breach of contract is comprised of the following
elements: (1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages
to plaintiff. It is elementary that one party to a contract cannot
compel another to perform while he himself is in default. While the
performance of an allegation can be satisfied by allegations in
general terms, excuses must be pleaded specifically.”  Durell v. Sharp
Healthcare, 183 Cal. App. 4th 1350, 1367 (2010) (citations and
quotations omitted).

We don’t even have to act in “good Faith” or is that “bad Faith”

Cause of Action for Breach of the Implied Covenant of Good
Faith and Fair Dealing – “[W]ith the exception of bad faith insurance
cases, a breach of the covenant of good faith and fair dealing permits
a recovery solely in contract.  Spinks v. Equity Residential Briarwood
Apartments, 171 Cal. App. 4th 1004, 1054 (2009).  In order to state a
cause of action for Breach of the Implied Covenant of Good Faith and
Fair Dealing, a valid contract between the parties must be alleged.
The implied covenant cannot be extended to create obligations not
contemplated by the contract.  Racine & Laramie v. Department of Parks
and Recreation, 11 Cal. App. 4th 1026, 1031-32 (1992).

On account we don’t have to give you an accounting

Cause of Action for an Accounting – Generally, there is no
fiduciary duty between a lender and borrower.  Perlas v. GMAC Mortg.,
LLC, 187 Cal. App. 4th 429, 436 (2010).  Further, Plaintiff (borrower)
has not alleged any facts showing that a balance would be due from the
Defendant lender to Plaintiff.  St. James Church of Christ Holiness v.
Superior Court, 135 Cal. App. 2d 352, 359 (1955).  Any other duty to
provide an accounting only arises when a written request for one is
made prior to the NTS being recorded.  CCC § 2943(c).

Then there is “Constructive Fraud” intent need not be shown

Cause of Action for Constructive Fraud – “A relationship need
not be a fiduciary one in order to give rise to constructive fraud.
Constructive fraud also applies to nonfiduciary “confidential
relationships.” Such a confidential relationship may exist whenever a
person with justification places trust and confidence in the integrity
and fidelity of another. A confidential relation exists between two
persons when one has gained the confidence of the other and purports
to act or advise with the other’s interest in mind. A confidential
relation may exist although there is no fiduciary relation ….”
Tyler v. Children’s  Home Society, 29 Cal. App. 4th 511, 549 (1994)
(citations and quotations omitted).

Lender no fiduciary duty Broker maybe

Cause of Action for Breach of Fiduciary Duty by Lender –
“Absent special circumstances a loan transaction is at arm’s length
and there is no fiduciary relationship between the borrower and
lender. A commercial lender pursues its own economic interests in
lending money. A lender owes no duty of care to the borrowers in
approving their loan. A lender is under no duty to determine the
borrower’s ability to repay the loan. The lender’s efforts to
determine the creditworthiness and ability to repay by a borrower are
for the lender’s protection, not the borrower’s.”  Perlas v. GMAC
Mortg., LLC, 187 Cal. App. 4th 429, 436 (2010) (citations and
quotations omitted).

Ok so maybe it wasn’t Fraud they (the lender) Misrepresented the loan to me

Cause of Action for Negligent Misrepresentation – “The
elements of negligent misrepresentation are (1) the misrepresentation
of a past or existing material fact, (2) without reasonable ground for
believing it to be true, (3) with intent to induce another’s reliance
on the fact misrepresented, (4) justifiable reliance on the
misrepresentation, and (5) resulting damage.  While there is some
conflict in the case law discussing the precise degree of
particularity required in the pleading of a claim for negligent
misrepresentation, there is a consensus that the causal elements,
particularly the allegations of reliance, must be specifically
pleaded.”  National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge
Integrated Services Group, Inc., 171 Cal. App. 4th 35, 50 (2009)
(citations and quotations omitted).

What is the statue of limitations on fraud

Fraud – Statute of Limitations- The statute of limitations for
fraud is three years.  CCP § 338(d).  To the extent Plaintiff wishes
to rely on the delayed discovery rule, Plaintiff must plead the
specific facts showing (1) the time and manner of discovery and (2)
the inability to have made earlier discovery despite reasonable
diligence.”  Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808
(2005).

What is fraud in factum anyway well here is what is required to plead it property

Cause of Action for Fraud, Requirement of Specificity – “To
establish a claim for fraudulent misrepresentation, the plaintiff must
prove: (1) the defendant represented to the plaintiff that an
important fact was true; (2) that representation was false; (3) the
defendant knew that the representation was false when the defendant
made it, or the defendant made the representation recklessly and
without regard for its truth; (4) the defendant intended that the
plaintiff rely on the representation; (5) the plaintiff reasonably
relied on the representation; (6) the plaintiff was harmed; and, (7)
the plaintiff’s reliance on the defendant’s representation was a
substantial factor in causing that harm to the plaintiff. Each element
in a cause of action for fraud must be factually and specifically
alleged. In a fraud claim against a corporation, a plaintiff must
allege the names of the persons who made the misrepresentations, their
authority to speak for the corporation, to whom they spoke, what they
said or wrote, and when it was said or written.”  Perlas v. GMAC
Mortg., LLC, 187 Cal. App. 4th 429, 434 (2010) (citations and
quotations omitted).

no teeth here either

Cause of Action for Violation of CCC §§ 2923.52 and / or
2923.53 – There is no private right of action.  Vuki v. Superior
Court, 189 Cal. App. 4th 791, 795 (2010).

All we have is hope

Cause of Action Under CCC § 2923.6 – There is no private
right of action under Section 2923.6, and it does not operate
substantively.  Mabry v. Superior Court, 185 Cal. App. 4th 208,
222-223 (2010).  “Section 2923.6 merely expresses the hope that
lenders will offer loan modifications on certain terms.”

pre-foreclosure only

Cause of Action Under CCC § 2923.5, Post Trustee’s Sale –
There is no private right of action under Section 2923.5 once the
trustee’s sale has occurred.  The “only remedy available under the
Section is a postponement of the sale before it happens.”  Mabry v.
Superior  Court, 185 Cal. App. 4th 208, 235 (2010).