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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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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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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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?

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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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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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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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).

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).

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, 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.

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.

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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.”

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).

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 years now, lie at the crux of the foreclosures and the reason why they should not be allowed to proceed. In plain … Read More

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In a recent court decision homeowners in Los Angeles were foreclosed. The foreclosing lender then filed an eviction action (unlawful detainer); the former owners stipulated the eviction judgment. The Homeowners filed suit for wrongful foreclosure.

The claim was that a Notice of Default was recorded on behalf of ‘Option One’ as beneficiary, but there was no substitution showing that Option One was the new beneficiary of record, and the foreclosure was conducted on behalf a trustee for which there was no substitution recorded.

The court dismissed the homeowners lawsuit. The court found that no substitution showing Option One as the new beneficiary of record with the statutory authority to designate a substituted trustee. The beneficiary of record remained Home Loans USA, Inc., the original beneficiary and lender to plaintiff in her refinance transaction. But even so, the eviction judgment which the homeowners stipulated to was res judicata as to plaintiffs’ claims in this action which all arise from the alleged invalidity of the foreclosure sale- they essentially agreed that it was already determined that there were no defects in the foreclosure, and that the lender had good title with which to evict them. “Res Judicata” means that the issue was already determined by a court.

The court stated “By stipulating to judgment against them, plaintiffs conceded the validity of Wells Fargo’s allegations that the sale had been duly conducted and operated to transfer “duly perfected” legal title to the property.”

Unlawful Detainer is a quick proceeding, and the trial seldom gets 30 minutes of court time. This decision will encourage sophisticated foreclosing lenders to move to eviction quickly to cut off claims of wrongful foreclosure, and sophisticated homeowners to hire a real estate attorney to represent them. It is nearly impossible to prove defects in the foreclosure at an eviction trial, and the owner must file their own suit and obtain an injunction from it going forward while they litigate the foreclosure.

Press Release

Release Date: April 13, 2011

For immediate release

The Federal Reserve Board on Wednesday announced formal enforcement actions requiring 10 banking organizations to address a pattern of misconduct and negligence related to deficient practices in residential mortgage loan servicing and foreclosure processing. These deficiencies represent significant and pervasive compliance failures and unsafe and unsound practices at these institutions.

The Board is taking these actions to ensure that firms under its jurisdiction promptly initiate steps to establish mortgage loan servicing and foreclosure processes that treat customers fairly, are fully compliant with all applicable law, and are safe and sound.

The 10 banking organizations are: Bank of America Corporation; Citigroup Inc.; Ally Financial Inc.; HSBC North America Holdings, Inc.; JPMorgan Chase & Co.; MetLife, Inc.; The PNC Financial Services Group, Inc.; SunTrust Banks, Inc.; U.S. Bancorp; and Wells Fargo & Company. Collectively, these organizations represent 65 percent of the servicing industry, or nearly $6.8 trillion in mortgage balances. All 10 actions require the parent holding companies to improve holding company oversight of residential mortgage loan servicing and foreclosure processing conducted by bank and nonbank subsidiaries.

In addition, the enforcement actions order the banking organizations that have servicing entities regulated by the Federal Reserve (Ally Financial, SunTrust, and HSBC) to promptly correct the many deficiencies in residential mortgage loan servicing and foreclosure processing. Those deficiencies were identified by examiners during reviews conducted from November 2010 to January 2011.

The Federal Reserve believes monetary sanctions in these cases are appropriate and plans to announce monetary penalties. These monetary penalties will be in addition to the corrective actions that the banking organizations are expected to take pursuant to the enforcement actions.

The enforcement actions complement the actions under consideration by the federal and state regulatory and law enforcement agencies, and do not preclude those agencies from taking additional enforcement action. The Federal Reserve continues to work with other federal and state authorities to resolve these matters.

The actions taken Wednesday require each servicer to take a number of actions, including to make significant revisions to certain residential mortgage loan servicing and foreclosure processing practices. Each servicer must, among other things, submit plans acceptable to the Federal Reserve that:

• strengthen coordination of communications with borrowers by providing borrowers the name of the person at the servicer who is their primary point of contact;
• ensure that foreclosures are not pursued once a mortgage has been approved for modification, unless repayments under the modified loan are not made;
• establish robust controls and oversight over the activities of third-party vendors that provide to the servicers various residential mortgage loan servicing, loss mitigation, or foreclosure-related support, including local counsel in foreclosure or bankruptcy proceedings;
• provide remediation to borrowers who suffered financial injury as a result of wrongful foreclosures or other deficiencies identified in a review of the foreclosure process; and
• strengthen programs to ensure compliance with state and federal laws regarding servicing, generally, and foreclosures, in particular.

The Federal Reserve will closely monitor progress at the firms in addressing these matters and will take additional enforcement actions as needed.

In addition to the actions against the banking organizations, the Federal Reserve on Wednesday announced formal enforcement actions against Lender Processing Services, Inc. (LPS), a domestic provider of default-management services and other services related to foreclosures, and against MERSCORP, Inc. (MERS), which provides services related to tracking and registering residential mortgage ownership and servicing, acts as mortgagee of record on behalf of lenders and servicers, and initiates foreclosure actions. These actions address significant compliance failures and unsafe and unsound practices at LPS and its subsidiaries, and at MERS and its subsidiary. The action requires LPS to address deficient practices related primarily to the document execution services that LPS, through its subsidiaries DocX, LLC, and LPS Default Solutions, Inc., provided to servicers in connection with foreclosures. MERS is required to address significant weaknesses in, among other things, oversight, management supervision, and corporate governance. The LPS action is being taken jointly with the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Office of Thrift Supervision, while the MERS action is being taken jointly with those agencies and the Federal Housing Finance Agency.

The Federal Reserve Board based its enforcement actions on the findings of the interagency reviews of the major mortgage servicers, LPS, and MERS. A summary of the findings from the reviews of the mortgage servicers is available in the Interagency Review of Foreclosure Policies and Practices,which is simultaneously being released by the Federal Reserve Board and the other agencies.

Attachments:

• Interagency Review of Foreclosure Policies and Practices (461 KB PDF)
• Consent Order for Bank of America Corp. (34 KB PDF)
• Consent Order for Citigroup Inc. and CitiFinancial Credit Co. (28 KB PDF)
• Consent Order for Ally Financial, Inc., ResCap, GMAC Mortgage, and Ally Bank (87 KB PDF)
• Consent Order for HSBC North America Holdings, Inc. and HSBC Finance Corp. (76 KB PDF)
• Consent Order for JPMorgan Chase & Co. and EMC Mtge. (39 KB PDF)
• Consent Order for MetLife, Inc. (25 KB PDF)
• Consent Order for PNC Financial Svs. Group, Inc. (25 KB PDF)
• Consent Order for SunTrust Banks, Inc., SunTrust Bank, and SunTrust Mortgage (76 KB PDF)
• Consent Order for U.S. Bancorp (25 KB PDF)
• Consent Order for Wells Fargo & Co. (25 KB PDF)
• Consent Order for LPS (47 KB PDF)
• Consent Order for MERS (48 KB PDF)

Associated Press

Homeowner sues mortgage servicer over HAMP denial

LOS ANGELES — A California homeowner is suing the mortgage servicing unit of Morgan Stanley, claiming the company had no intention of permanently modifying her home loan payments to an affordable amount despite having her make a slew of trial payments under a federal program designed to help homeowners avoid foreclosure.

The complaint, which was filed Thursday in U.S. District Court for the Northern District of California, accuses Saxon Mortgage Services Inc. of breach of contract and deceptive debt collection, among other claims, and seeks class-action status.

In the lawsuit, Marie Gaudin of Daly City contends Saxon offered her a loan modification trial plan under the Home Affordable Modification Program on June 1, 2009.

The plan called for Gaudin to make three trial payments on her mortgage and provide any documents needed by Saxon to evaluate the proposed loan modification.

Gaudin claims she made all the payments and complied with the documentation requests, but wasn’t offered a permanent HAMP loan modification once the three-month trial plan period ended.

agged out the process for months, while asking her to continue making payments.

Fraudulent Threats – By Foreclosure Lawyers

SEE LIVINGLIES LITIGATION SUPPORT AT LUMINAQ.COM

EDITOR’S COMMENT: About the only thing the lawyers have left is intimidation and trickery. Don’t believe a word you are told by the pretender lender or the lawyer for the pretender lender. It is all a game to them. The goal is for them to get your house for free. They never loaned you the money and they never purchased the loan. They have nothing to lose by going after your house because nobody is stopping them and nobody is holding them accountable. They don’t even lose anything if they lose the case because the number of cases lost (3%) is less than the normal default rate on valid mortgages. They will use ridicule and outright fabrication and forgery of documents combined with lying in court and introducing witnesses that don’t know a thing about your case. OBJECT!

And when some lawyer tries a collection stunt like this (see below), use it against him every way you can.

Fraudulent Threats – By Foreclosure Lawyers

Yesterday, March 24, 2011, 9:41:13 PM | Mark Stopa

From Neil Garfield:

WALL STREET, realizing it really doesn’t have a leg to stand on in Court and that an increasing number of decisions are going against them for simple, black letter law reasons, is attempting an end run around the Court system. In Florida a House panel has moved a bill that would give the legislature power over rule-making IN THE COURT SYSTEM! It sounds innocuous — but what it does is allow pretenders to foreclose even when they lack standing, are not the real party in interest, are not the creditor and have no legal relationship with a creditor that has a legal interest in a home loan. They are going to redefine those legal precepts that have governed an orderly society for hundreds of years so they can GET ANOTHER FREE HOUSE — ACTUALLY MILLIONS OF THEM TO ADD TO THE MILLIONS THEY HAVE TAKEN.

I don’t know when some clerk in a recording office is suddenly going to be in full realization that these houses are being stolen contrary to the law the clerk swore to uphold, but it’s coming. The  homes are being “bought” with a piece of paper (like a derivative) that has no value and contrary to law in the form of what they are calling a credit bid. But the credit bid can ONLY come from a creditor.

SO you have a company that lent no money, purchased no receivable, received no note or mortgage, nor any valid agency authority making the bid and then the title gets whipped around and put into entities that are “bankruptcy-remote” (code for protecting the thieves) and who are taking their order from unidentified people who work for unidentified companies contrary to the interests of either the investor who put up the money or the borrower who put up his home as collateral on a loan that was misrepresented to both as being worth less than the value of the property when the truth was quite the opposite.

WHILE THEY CONCEDE IT WOULD TAKE A CONSTITUTIONAL AMENDMENT TO DO IT, THAT IS EXACTLY WHAT THEY ARE PUSHING IN FLORIDA AND OTHER STATES. IT IS A FRONTAL ASSAULT ON THE BASIS OF  GOVERNMENT WE HAVE — THREE BRANCHES EACH WITH THEIR OWN POWERS THAT CANNOT BE ASSUMED BY THE OTHERS.

If they succeed, the very act would be unconstitutional on the Federal level but who cares? They will have passed a law, changed the state constitution, and given themselves years to acquire more FREE HOUSES. Just because they didn’t make the loan, just because they didn’t buy the loan and just because they purposely lied to the borrower and the investor at both closings (where the investor put up the money and where the loan was funded) — that’s no reason to put an absolute stop on foreclosures!

The good news is that we are seeing desperate measures from desperate people. The house cards is about to tumble and neither the government nor the megabanks can stop it. The plain truth is that the banks have no real assets to support their structure or infrastructure but they are pretending they do and the government is letting them. Funny how the free market and separation of three branches of government is going to make the correction — another example, bankers, of be careful what you wish for.

The bad news is that it is going to work unless people get active and let their legislators know what is going on. Let them know you want the government that America started with and no redo’s, losing the court system as a check on the powers of the legislature and executive branch. If they win, America is over with two branches of government instead of three. It is the same thing as those contracts with insurance companies and investment firms that provide for “arbitration” with their own arbitrators. The independence of the judiciary will be destroyed, along with any chance for anyone to get a fair shake. The coup d’etat is not nearly over. We are still only in the 3rd or 4th inning of a nine inning game. You are up to bat. GO GET ‘EM!!!

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COMBO TITLE AND SECURITIZATION SEARCH, REPORT, ANALYSIS ON LUMINAQ EDITOR'S COMMENT: I agree with Krugman from an economists point of view that this is like 1937 all over again when the Republican scare tactic of the deficit drove us back into a depression. But I think he misses the point. He says they are killing the recovery. I say we have no recovery. A patient isn't recovering if the prognosis has changed from death in 2 weeks to death in 2 m … Read More

via Livinglies's Weblog

Dr. Housing Bubble Blog Friday, March 04, 2011, 2:43:53 AM Four financial corners of California – real estate and broker licensees continue to decline, banks extend average foreclosure to 285 days, underemployment surges to 19.9 percent nationwide, and Federal Reserve now largest U.S. debt holder. Friday, March 04, 2011, 2:43:53 AM | drhousingbubble California home prices continue on a downward and inevitable trend lower reflecting an underlying … Read More

via Foreclosureblues