Works Rights Compliance Alliance

Pre-Foreclosure – Required Notice and Duty to Confer with Borrower –

Pre-Foreclosure – Required Notice and Duty to Confer with Borrower –
2923.5.
(a) (1) A mortgagee, trustee, beneficiary, or authorized
agent may not file a notice of default pursuant to Section 2924 until 30 days after initial contact is made
as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in
subdivision (g).
(2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone
in order to assess the borrower’s financial situation and explore options for the borrower to avoid
foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the
borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee,
beneficiary, or authorized agent shall schedule the
meeting to occur within 14 days. The assessment of the borrower’s financial situation and discussion
of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose.
In either case, the borrower shall be provided the toll-free telephone number made available by the
United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing
counseling agency. Any meeting may occur telephonically.
(b) A notice of default filed pursuant to Section 2924 shall
include a declaration that the mortgagee, beneficiary, or authorized agent has contacted the borrower,
has tried with due diligence to contact the borrower as required by this section, or that no contact was
required pursuant to subdivision (h).
(c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to
the enactment of this section and did not subsequently file a notice of rescission, then the mortgagee,
trustee, beneficiary, or authorized agent shall, as part of the notice of sale filed pursuant to Section
2924f, include a declaration that either:
(1) States that the borrower was contacted to assess the borrower’s financial situation and to explore
options for the borrower to avoid foreclosure.
(2) Lists the efforts made, if any, to contact the borrower in the
event no contact was made.
(d) A mortgagee’s, beneficiary’s, or authorized agent’s loss
mitigation personnel may participate by telephone during any contact required by this section.
(e) For purposes of this section, a “borrower” shall include a
mortgagor or trustor.
(f) A borrower may designate, with consent given in writing, a
HUD-certified housing counseling agency, attorney, or other advisor to discuss with the mortgagee,
beneficiary, or authorized agent, on the borrower’s behalf, the borrowers financial situation and options
for the borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy
the contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan
offered at the meeting by the mortgagee, beneficiary, or authorized agent is subject to approval by the
borrower.
(g) A notice of default may be filed pursuant to Section 2924 when a mortgagee, beneficiary, or
authorized agent has not contacted a borrower as required by paragraph (2) of subdivision (a) provided
that the failure to contact the borrower occurred despite the due diligence of the mortgagee,
beneficiary, or authorized agent. For purposes of this section, “due diligence” shall require and mean
all of the following:
(1) A mortgagee, beneficiary, or authorized agent shall first
attempt to contact a borrower by sending a first-class letter that
includes the toll-free telephone number made available by HUD to find a HUD-certified housing
counseling agency.
(2) (A) After the letter has been sent, the mortgagee,
beneficiary, or authorized agent shall attempt to contact the
borrower by telephone at least three times at different hours and on different days. Telephone calls
shall be made to the primary telephone number on file.
(B) A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated
system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a
live representative of the mortgagee, beneficiary, or authorized agent.
(C) A mortgagee, beneficiary, or authorized agent satisfies the
telephone contact requirements of this paragraph if it determines, after attempting contact pursuant to
this paragraph, that the borrower’s primary telephone number and secondary telephone number or
numbers on file, if any, have been disconnected.
(3) If the borrower does not respond within two weeks after the telephone call requirements of
paragraph (2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send a
certified letter, with return receipt requested.
(4) The mortgagee, beneficiary, or authorized agent shall provide a means for the borrower to contact it
in a timely manner, including a toll-free telephone number that will provide access to a live
representative during business hours.
(5) The mortgagee, beneficiary, or authorized agent has posted a prominent link on the homepage of its
Internet Web site, if any, to the following information:
(A) Options that may be available to borrowers who are unable to afford their mortgage payments and
who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore
those options.
(B) A list of financial documents borrowers should collect and be prepared to present to the mortgagee,
beneficiary, or authorized agent when discussing options for avoiding foreclosure.
(C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure
with their mortgagee, beneficiary, or authorized agent.
(D) The toll-free telephone number made available by HUD to find a HUD-certified housing counseling
agency.
(h) Subdivisions (a), (c), and (g) shall not apply if any of the
following occurs:
(1) The borrower has surrendered the property as evidenced by either a letter confirming the surrender
or delivery of the keys to the property to the mortgagee, trustee, beneficiary, or authorized agent.
(2) The borrower has contracted with an organization, person, or entity whose primary business is
advising people who have decided to leave their homes on how to extend the foreclosure process and
avoid their contractual obligations to mortgagees or beneficiaries.
(3) A case has been filed by the borrower under Chapter 7, 11, 12, or 13 of Title 11 of the United States
Code and the bankruptcy court has not entered an order closing or dismissing the bankruptcy case, or
granting relief from a stay of foreclosure.
(i) This section shall apply only to mortgages or deeds of trust
recorded from January 1, 2003, to December 31, 2007, inclusive, that are secured by owner-occupied
residential real property containing no more than four dwelling units. For purposes of this subdivision,
“owner-occupied” means that the residence is the principal residence of the borrower as indicated to
the lender in loan documents.
(j) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends that date.

Mortgage Broker duty defined

Broker’s Duty to Borrower
2923.1.
(a) A mortgage broker providing mortgage brokerage services to a borrower is the fiduciary of the
borrower, and any violation of the broker’s fiduciary duties shall be a violation of the mortgage broker’s
license law. This fiduciary duty includes a requirement that the mortgage broker place the economic
interest of the borrower ahead of his or her own economic interest. A mortgage broker who provides
mortgage brokerage services to the borrower owes this fiduciary duty to the borrower regardless of
whether the mortgage broker is acting as an agent for any other party in connection with the residential
mortgage loan transaction.
(b) For purposes of this section, the following definitions apply:
(1) “Licensed person” means a real estate broker licensed under the Real Estate Law (Part 1
(commencing with Section 10000) of Division 4 of the Business and Professions Code), a finance
lender or broker licensed under the California Finance Lenders Law (Division 9 (commencing with
Section 22000) of the Financial Code), a residential mortgage lender licensed under the California
Residential Mortgage Lending Act (Division 20 (commencing with Section 50000) of the Financial
Code), a commercial or industrial bank organized under the Banking Law (Division 1 (commencing with
Section 99) of the Financial Code), a savings association organized under the Savings Association
Law (Division 2 (commencing with Section 5000) of the Financial Code), and a credit union organized
under the California Credit Union Law (Division 5 (commencing with Section 14000) of the Financial
Code).
(2) “Mortgage broker” means a licensed person who provides
mortgage brokerage services. For purposes of this section, a licensed person who makes a residential
mortgage loan is a “mortgage broker,”and subject to the requirements of this section applicable to
mortgage brokers, only with respect to transactions in which the
licensed person provides mortgage brokerage services.
(3) “Mortgage brokerage services” means arranging or attempting to arrange, as exclusive agent for
the borrower or as dual agent for the borrower and lender, for compensation or in expectation of
compensation, paid directly or indirectly, a residential mortgage loan made by an unaffiliated third party.
(4) “Residential mortgage loan” means a consumer credit
transaction that is secured by residential real property that is
improved by four or fewer residential units.
(c) The duties set forth in this section shall not be construed to limit or narrow any other fiduciary duty of
a mortgage broker.

Trust Deed/Mortgage defined

“Mortgage” Defined
2920. (a) A mortgage is a contract by which specific property,
including an estate for years in real property, is hypothecated for the performance of an act, without the
necessity of a change of possession.
(b) For purposes of Sections 2924 to 2924h, inclusive, “mortgage” also means any security device or
instrument, other than a deed of trust, that confers a power of sale affecting real property or an estate
for years therein, to be exercised after breach of the obligation so secured, including a real property
sales contract, as defined in Section 2985, which contains such a provision.

Property in possession of adverse claimant
2921. A mortgage may be created upon property held adversely to the mortgagor.

Writing-Formalities
2922. A mortgage can be created, renewed, or extended, only by writing, executed with the formalities
required in the case of a grant of real property.

Lien-Special-Possession
2923.
The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of
possession.

A TAKING OF PROPERTY WOULD BE OTHERWISE UNCONSTITUTIONAL

Defective Procedure

The trustee’s failure to comply with the statutorily mandated procedures for a foreclosure sale is an important basis for attacking the foreclosure sale. The trustor bears the onus of establishing the impropriety of the sale, for a foreclosure is presumed to be conducted regularly and fairly in the absence of any contrary evidence Stevens v. Plumas Eureka Annex Min. Co. (1935) 2 Cal.2d 493, 497; 41 P.2d 927; Sain v. Silvestre (1978) 78 Cal.App.3d 461, 471 n. 10; 144 Cal.Rptr. 478; Hohn v. Riverside County Flood Control & Wat. Conserv. Dist. (1964) 228 Cal.App.2d 605, 612; 39 Cal.Rptr. 647; Brown v. Busch (1957) 152 Cal.App.2d 200, 204; 313 P.2d 19.] The presumption can be rebutted by contrary evidence [See, e.g., Wolfe v. Lipsv (1985) 163 Cal.App.3d 633,639; 209 Cal.Rptr. 801] and the courts will carefully scrutinize the proceedings to assure that the trustor’s rights were not violated. [See e.g., System Inv. Corp. v. Union Bank, supra, 21 Cal.App.3d 137, 153; Stirton v. Pastor (1960) 177 Cal.App.2d 232, 234; 2 Cal.Rptr. 135; Brown v. Busch, supra, 152 Cal.App.2d 200, 203-04; Pierson v. Fischer (1955) 131 Cal.App.2d 208, 214; 280 P.2d 491; Pv v. Pleitner, supra, 70 Cal.App.2d 576, 579.]

a. Defective Notice of Default

A foreclosure may not be predicated on a notice of default which fails to comply strictly with legal requirements: “. . . a trustee’s sale based on a statutorily deficient notice of default is invalid.” With the enactment of The California Foreclosure prevention act Civil coded 2924 and 2923.5 and 2923.6 the recent decision in Mabury the requirements are to be strictly complied with” Miller v. Cote (1982) 127 Cal.App.3d 888, 894; see System Inv. Corp. v. Union Bank, supra, 21 Cal.App.3d 137, 152-53; Lockwood v. Sheedy. supra, 157 Cal.App.2d 741, 742.] Defective service of the notice of default will also invalidate the sale procedure. [See discussion in Chapter II, supra, “Adequacy of Notice to Trustor.]

b. Defective Notice of Sale

Some cases hold that a sale held without proper notice of sale is void. [See Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606, 613; 72 P.2d 143; United Bank & Trust Co. v. Brown (1928) 203 Cal. 359; 264 P. 482; Standlev v. Knapp (1931) 113 Cal.App. 91, 100-02; 298 P. 109; Seccombe v. Roe (1913) 22 Cal.App. 139, 142-43; 133 P. 507; see also discussion in Chapter II B 4 supra, “Giving the Notice of Sale”.] However, if a trustee’s deed has been issued that states a conclusive presumption that all notice requirements have been satisfied, the sale is voidable and may be vacated if the trustor proves that the conclusive presumption does not apply and that notice was defective. The conclusive presumption may not apply if there are equitable grounds for relief such as fraud or if the purchaser is not a bona fide purchaser for value. [See Little v. CFS Service Corp. (1987) 188 Cal.App.3d 1354, 1359; 233 Cal.Rptr. 923;

Moreover, a serious notice defect that was directly prejudicial to the rights of parties who justifiably relied on notice procedures may independently justify setting aside a sale, especially if the trustee’s deed has not been issued and the highest bidder’s consideration has been returned. [See Little v. CFS Service Corp., supra. 188 Cal.App.3d 1354, 1360-61.]

c. Improper Conduct of Sale

As discussed above, the trustee must strictly follow the statutes and the terms of the deed of trust in selling the property. [See discussion in Chapter II B, supra, “Nonjudicial Foreclosure”.] For example, the Court of Appeal has declared that:

The power of sale under a deed of trust will be strictly construed, and in its execution the trustee must act in good faith and strictly follow the requirements of the deed with respect to the manner of sale. The sale will be scrutinized by courts with great care and will not be sustained unless conducted with all fairness, regularity and scrupulous integrity …. Pierson v. Fischer, supra, 131 Cal.App.2d 208, 214.

Postponements

One of the major problems occurring at sales involves postponements: the trustee may fail to postpone a sale when the trustor needs a postponement or the trustee may unnecessarily postpone the sale and thereby discourage the participation of bidders. Current law expressly gives the trustee discretion to postpone the sale upon the written request of the trustor for the purpose of obtaining cash sufficient to satisfy the obligation or bid at the sale. [Civ. Code § 2924g(c) (1). ] There are no limitations on the number of times the trustee may postpone the sale to enable the trustor to obtain cash. The trustor is entitled to one such requested postponement, and any postponement for this reason cannot exceed one business day. (Id.) Failure to grant this postponement will invalidate the sale. [See discussion in Chapter II B 7, supra, “Conduct of the Foreclosure Sale”.] However, the trustee is under no general obligation to postpone the sale to enable the trustor to obtain funds, particularly when the trustor receives the notices of default and sale and has months to raise the money. [See Oiler v. Sonoma County Land Title Co. (1955) 137 Cal.App.2d 633, 634-35; 290 P.2d 880.] In addition, the trustee’s duty to exercise its discretion to favor the trustor is tempered by the trustee’s duty to the beneficiary; thus, for example, the trustee may be more obliged to postpone the sale at the trustor’s request if only the beneficiary appears at the sale

to bid than if other bidders appear who are qualified to bid enough to satisfy the unpaid debt.

The foreclosure sale may also have to be postponed if there is an agreement between the beneficiary and the trustor for a postponement. An agreement to postpone a trustee’s sale is deemed an alteration of the terms of the deed of trust and is enforceable only if it assumes the form of a written agreement or an executed oral agreement. [See Civ. Code § 1698; Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 121; 92 Cal.Rptr. 851; Stafford v. Clinard (1948) 87 Cal.App.2d 480, 481; 197 P.2d 84.] Thus, a gratuitous oral promise generally is insufficient to support an agreement to continue the sale; however, if the oral agreement is predicated on a promissory estoppel or if the trustor fully performs the trustor’s consideration for the oral agreement, the trustor may enforce the beneficiary’s oral promise to postpone. Raedeke v. Gilbraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665; 111 Cal.Rptr. 693.] In Raedeke, the trustor could obtain a responsible purchaser for the property, and the beneficiary agreed. The trustor obtained the purchaser, but the beneficiary foreclosed. The Supreme Court held that the trustor fully performed its promise — to procure a buyer — which was good consideration for the agreement to postpone and that the beneficiary’s breach entitled the trustor to damages for the wrongful foreclosure.

Although the failure to postpone may be a problem, the trustee’s improper granting of postponements is generally a far greater problem. Notice of a postponement must be given “by public declaration” at the time and place “last appointed for sale,” and no other notice need be supplied. [Civ. Code § 2924g(d).] Therefore, any prospective bidder will have to attend each appointed time for sale to discover whether the sale will occur or be postponed. As a result, prospective bidders will be discouraged from participating in a sale involving numerous postponements, and there will be less chance that an active auction will occur which will generate surplus funds to which the trustor may be entitled. [Cf. Block v. Tobin (1975) 45 Cal.App.3d 214; 119 Cal.Rptr. 288.]

The abuse of the postponement procedure prompted the Legislature to curb the trustee’s ability to make discretionary postponements. The trustee may make only three postponements at its discretion or at the beneficiary’s direction without recommencing the entire notice procedure prescribed in Civ. Code § 2924f. [Civ. Code § 2924g(c)(1).] In addition, the trustee must publicly announce the reason for every postponement and must maintain records of each postponement and the reason for it. [Civ. Code § 2924g(d).]

A lawyer representing a client whose home has been sold at a foreclosure sale involving discretionary or beneficiary directed

postponements should, at the first opportunity for discovery, obtain production of the foreclosure file and any documents relating to it, and any documents relating to the postponement and reasons for it, including the statutorily mandated record concerning the postponement, as well as any notes, telephone messages, logs, or calendar entries relating to the postponement. In addition, the lawyer should quickly discover who attended the sale to determine whether the reason for the postponement was given “by public declaration” and, if so, whether the same reason is indicated for the postponement in the record maintained by the trustee.

The failure to postpone properly should invalidate the sale. Certainly, a sale held without any public announcement of the date, time, and place to which the sale has been postponed is invalid. [See Holland v. Pendelton Mortgage Co. (1943) 61 Cal.App.2d 570, 573-74; 143 P.2d 493.] The cases upholding sales made on postponed dates are based on the trustee’s compliance with the notice of postponement requirements prescribed by statute or contained in the trust deed. [See e.g., Cobb v. California Bank (1946) 6 Cal.2d 389, 390; 57 P.2d 924; Craig v. Buckley (1933) 218 Cal. 78, 80-81; 21 P.2d 430; Alameda County Home Inv. Co. v. Whitaker (1933) 217 Cal. 231, 234-35; 18 P.2d 662.] Since the trustee sale must be conducted in strict compliance with the notice requirements, a notice of postponement which does not contain a statement of the

reason for the postponement is defective. Any sale held pursuant to the defective notice may be held to be improper.

Moreover, the records relating to the postponement may reveal that the postponement was unnecessary or may lead to evidence establishing that the postponement was made in bad faith. As discussed above, fraud, unfairness, and irregularity in the conduct of the sale should render the sale invalid.

TREBEL THE DAMAGES AND OFFSET THE DEBT

These pretender lenders are not banks and are thereby subject to usury law when you add all the undisclosed profits and appraisal fraud is easy to see that the interest exceeds 10% and this could be offset as against the loan.The trustor also may offset against the amount claimed by the beneficiary any amount due the trustor from the beneficiary. [See Hauger v. Gates (1954) 42 Cal.2d 752, 755; 249 P.2d 609; Richmond v. Lattin (1883) 64 Cal. 273; 30 P. 818; Goodwin v. Alston (1955) 130 Cal.App.2d 664, 669; 280 P.2d 34; Cohen v. Bonnell (1936) 14 Cal.App.2d 38; 57 P.2d 1326; Zarillo v. Le Mesnacer (1921) 51 Cal.App. 442; 1196 P.902 (damages for conversion offset against debt secured by chattel mortgage); Williams v. Pratt (1909) 10 Cal.App. 625, 632; 103 P. 151.] In Goodwin, supra, the mortgagor established that the mortgagee charged usurious interest, and the penalty of the trebled interest payments along with other amounts were setoff against the mortgage debt. As a result, the debt was effectively satisfied, the mortgage was thereby extinguished and no foreclosure was permitted, and the mortgagee was held liable to the mortgagor for damages. (See 130 Cal.App.2d at 668-69.)

The Supreme Court made clear in Hauaer, supra, that the trustor, in the context of the nonjudicial foreclosure of a deed of trust, could use the right of setoff. [See 42 Cal.2d at 755.] Normally, setoff is employed defensively through an affirmative defense or cross-complaint (or formerly counterclaim) in response to an action for money. The court in Hauaer, however, saw no distinction between the right of setoff held by a trustor defending a foreclosure action or by a trustor affirmatively attacking a nonjudicial foreclosure proceeding. (Id. at 755-56.) Accordingly, the Supreme Court held that the trustor, as plaintiff, could establish the impropriety of a foreclosure by showing that the trustor was not in default on his obligation since the obligation was offset by an obligation which the beneficiary owed to him. (Id. at 753, 755.) The court further held that the trustor did not have to bring an independent action to establish the setoff. (Id. at 755.) Moreover, the court declared that unliquidated as well as liquidated amounts could be setoff; thus, the court allowed the trustor to setoff an unliquidated claim for damages for breach of contract.

Hauaer and the other cases cited above are based on former Code of Civ. Proc. § 440 which has been superseded by Code of Civ. Proc. § 431.70. The rule of these cases should not be altered because the new section appears broader than the old. Furthermore, the Legislative Committee Comment to section 431.70 not only states that the new section continues the substantive effect of section 440 but also approvingly cites Hauaer.

The right of setoff has substantial significance in contesting the validity of any foreclosure since the trustor may establish that no default occurred or, indeed, no indebtedness exists because of an offsetting amount owed by the beneficiary to the trustor. As discussed above, this offset may be a liquidated or an unliquidated claim. In addition, the claim which the trustor may wish to offset may be barred by the statute of limitations at the time of the foreclosure, but as long as the trustor’s claim and the beneficiary’s claim coexisted at any time when neither claim was barred, the claims are deemed to have been offset. [See Code of Civ. Proc. § 431.70.] The theory is that the competing claims which coexisted when both were enforceable were offset to the extent they equaled each other without the need to bring an action on the claims. Therefore, since the offsetting claim is deemed satisfied to the extent it equaled the other claim, there was no

existing claim against which the statute of limitation operates. See Jones v. Mortimer (1946) 28 Cal.2d 627, 632-33; 170 P.2d 893; Singer Co. v. County of Kings (1975) 46 Cal.App.3d 852, 869; 121 Cal.Rptr. 398; see also Hauger v. Gates, supra, 42 Cal.2d 752, 755.]

The right of setoff not only gives the trustor the ability to setoff liquidated and unliquidated claims for money paid or for damages, but also permits setoffs for statutory penalties to which the trustor may be entitled because of the beneficiary’s violation of the law. In Goodwin v. Alston, supra, 130 Cal.App.2d 664 the debtor in a foreclosure action offset his obligation against the treble damages awarded to him for the creditor’s usury violations. Similarly, the penalty for violating the federal Truth in Lending Act — twice the amount of the finance charge but not less than $100 or more than $1,000 [15 U.S.C. § 1640(a)(2)(A)(i)] — may be offset against the obligation owed the creditor.-‘ [See 15 U.S.C. § 1640(h); Reliable Credit Service, Inc. v. Bernard (La.App. 1976) 339 So.2d 952, 954, cert, den. 341 So.2d 1129, cert, den. 342 So.2d 215; Martin v. Body (Tex.Civ.App. 1976) 533 S.W.2d 461, 467-68].

Although Truth in Lending penalties may be offset against the creditor’s claim, the debtor may not unilaterally deduct the penalty; rather, the offset must be raised in a judicial proceeding, and the offset’s validity must be adjudicated. [15 U.S.C. § 1640(h); see e.g., Pacific Concrete Fed. Credit Union v. Kauanoe (Haw. 1980) 614 P.2d 936, 942-43; Lincoln First Bank of Rochester v. Rupert (App.Div. 1977) 400 N.Y.S. 618, 621.]

Although no cases have authorized the trustor’s offset of punitive damages against the obligation owed, no reason appears to prevent the offset of punitive damages. Normally, if punitive damages were appropriate, sufficient fraud, oppression, or other misconduct would be established to vitiate the entire transaction. But even if the transaction were rescinded, the injured trustor likely would be required to return any consideration given by the offending beneficiary. The trustor almost always will have spent the money, usually to satisfy another creditor or to purchase goods or services which cannot be returned for near full value. A punitive damage offset may reduce or eliminate the trustor’s obligation to restore consideration paid in a fraudulent, oppressive, or similarly infirm transaction.

Trial Mods or forbearance agreements may be a waiver of Foreclosure

Waiver or Estoppel to Claim Payment or Default

May a client call me to say they where making there trial loan mod payments but the lender foreclosed anyway. The trustor may deny that any amount is owed at that particular time, or may deny that the prescribed amount demanded is owed, if the beneficiary has waived the time requirements contained in the obligation by accepting late payments or if the beneficiary has accepted payments smaller than that permitted in the contract.

A waiver is unlikely to be construed as permanent in the absence of a writing or new consideration. A permanent waiver is, in effect, a change in the agreement equivalent to a novation requiring new consideration. [E.g., Hunt v. Smyth, supra, 25 Cal.App.3d 807, 819; Bledsoe v. Pacific Ready Cut Homes, Inc. (1928) 92 Cal.App. 641, 644-45; 268 P. 697.] The beneficiary and trustor may modify their payment schedule in writing without new consideration. [See Civ. Code §§1698(a), 2924c (b)(1).] The beneficiary’s conduct, however, may constitute a temporary waiver.

The beneficiary cannot declare the trustor in default of the terms of the obligation where the beneficiary has temporarily waived such terms — until the beneficiary has given definite notice demanding payment in accord with the obligation and has provided the trustor a reasonable length of time to comply. In addition, the beneficiary must give the trustor definite notice that future payments must comply with the terms of the obligation. [E.g., Hunt v. Smyth. supra, 25 Cal.App.3d 807, 822-23; Lopez v. Bell (1962) 207 Cal.App.2d 394, 398-99; 24 Cal.Rptr. 626; Bledsoe v. Pacific Ready Cut Homes, Inc., supra, 92 Cal.App. 641, 645.] Even if the beneficiary’s conduct does not constitute a knowing relinquishment of rights, it may create an equitable estoppel. [See e.g., Altman v. McCollum (1951) 107 Cal.App.2d Supp. 847; 236 P.2d 914.]

ASSAILING THE FORECLOSURE

ASSAILING THE FORECLOSURE

Introduction

Neither the beneficiary nor the trustee needs to invoke any judicial procedure or obtain any judicial process to cause the sale of property pursuant to a power of sale. The only court procedure needed to complete the full foreclosure process is an action for unlawful detainer, after the consummation of the sale, to oust the former owner from possession.

The onus of challenging the merit of the foreclosure and the fairness and regularity of the process is placed on the trustor or junior lienholder. Thus, judicial supervision, examination, and intervention would come almost exclusively through an action instituted by the trustor or, to a lesser extent, a junior encumbrancer. The notion is that the minimum period of three months coupled with the succeeding 20-day period is sufficient time for the trustor to take appropriate action to stop the foreclosure sale. [See generally Smith v. Allen (1968) 68 Cal.2d 93, 96; 65 Cal.Rptr. 153.] In Py v. Pleitner (1945) 70 Cal.App.2d 576, 582; 161 P.2d 393, for example, the court denied the trustor any relief but commented that “[w]e appreciate the unfortunate position in which appellant finds herself because she did not seek legal advice to protect her legal rights.”

The foreclosure proceeding can be attacked before and after the sale; however, as discussed below, the trustor may be unable to successfully assert claims, regarding the invalidity of the proceeding, against a bona fide purchaser for value and without notice. If an action is initiated prior to the sale, the basic remedy sought is an injunction to restrain the foreclosure sale in addition to other remedies such as quiet title or cancellation of the trust deed. If an action is initiated after the foreclosure sale, the trustor will seek various remedies and will attempt to vacate the sale and to enjoin the purchaser from attempting to oust the trustor from possession. After the sale, the battleground may be in unlawful detainer proceedings where raising defenses based on the obligation or the trust deed may not be allowed or, if allowed, would be perilous.

Grounds for Attacking the Foreclosure

One of the fundamental grounds for attacking a foreclosure is that the lien is invalid. The lien may be invalid and unenforceable because of defects related to its negotiation and execution. Moreover, since the lien is a mere incident to the obligation which it secures, the lien cannot be enforced if the obligation is invalid or if the obligation has not been breached. The lien also may not be enforced if the breach is less than the amount stated in the notice of default and the trustor cures the

default by paying the lesser amount.

In addition, the foreclosure can be stopped if the procedural requirements and safeguards established by statute are not followed. Thus, defects in the notice of default, notice of sale, the reinstatement procedure, or the proposed or actual conduct of the sale afford grounds for preventing or voiding the sale.

The Obligation is Unenforceable

Various common law theories (e.g., fraud in factum, fraud in inducement, duress, failure of consideration, unconscionability, forgery, etc.) may be raised to render the obligation unenforceable.

The Lien is Unenforceable

Common Law Theories

Various common law theories (e.g., fraud, mistake, no delivery, forgery, community property but both spouses did not encumber, etc.) may be raised to render the lien unenforceable. 105 Cal.App.3d 65, 75-80; 164 Cal.Rptr. 279; Thomas v. Wright (1971) 21 Cal.App.3d 921; 98 Cal.Rptr. 874; Brewer v. Home Owners Auto Finance Co. (1970) 10 Cal.App.3d 337; 89 Cal.Rptr. 231.]

One form of transaction involving seller participation in the financing is the seller assisted loan. In this type of loan, the seller assists the buyer in obtaining a loan for all or part of the purchase price of the vehicle from a third party lender. If the seller is significantly involved in the procurement of the loan, the Rees-Levering Act applies. [See Hernandez v. Atlantic Finance Co. of Los Angeles, supra, 105 Cal.App.3d 65, 70, 73-80.] Rees-Levering exempts loans made by supervised financial organizations, such as banks and consumer finance lenders, and security interests taken in connection with such loans from the Act’s coverage [Civ. Code § 2982.5(a)]; however, this exemption applies only to loans independently obtained by purchasers without seller assistance. [See Hernandez v. Atlantic Finance Co. of Los Angeles, supra, 105 Cal.App.3d 65, 70.] If Rees-Levering applies to a seller assisted loan, any trust deed or other real property lien securing the loan will be void. [See Civ. Code § 2984.2(c); Brewer v. Home Owners Auto Finance Co.. supra, 10 Cal.App.3d 337.]

After Hernandez was decided, the Legislature amended the Rees-Levering Act to include special provisions for seller assisted loans. [Civ. Code § 2982.5(d).] The seller may assist the buyer

in obtaining a loan for all or part of the purchase price; however, any real property lien securing the loan is void and unenforceable unless the loan is for $7,500 or more and is used for certain recreational vehicles. [Civ. Code § 2982.5(d)(1) and (2).] This section does not apply to seller assisted loans made by banks and savings and loan associations which continue to be governed by Hernandez principles.

Neither Hernandez nor Civil Code section 2982.5(d) defines seller assisted loan. In Hernandez, the seller completed the buyer’s credit application, repeatedly called the buyer to inform her that credit had been approved, picked her up and drove her to the seller’s place of business to sign documents, and drove her to the lender’s place of business to sign more documents. (105 Cal.App.3d at 73.) Hernandez, presents an extreme example of seller involvement in obtaining financing. A seller assisted loan may occur without the degree of seller involvement present in Hernandez. For example, a seller assisted loan embraces a loan in which the seller prepares or helps the buyer prepare a loan application and forwards it to the lender. [See Eldorado Bank v. Lytle (1983) 147 Cal.App.3d Supp. 17, 21; 195 Cal.Rptr. 499.] Although a precise definition of seller assisted loan does not appear in the cases or the statute, the term appears to be broad and at least includes loans arranged or facilitated by the direct involvement of the seller in preparing and/or submitting loan information to the creditor.

The Rees-Levering Act does not specifically address the situation of a seller assisted loan which is used partly for a vehicle purchase and partly for some other purpose such as a home improvement or bill consolidation. A creditor could argue that the lien covering the non-vehicle portion of the loan is not in violation of the statute and, therefore, is not void to the extent the lien secures repayment of the nonvehicle loan. However, the lien is taken as part of an entire loan transaction. The purpose of the transaction was to obtain a vehicle loan. Other portions of the loan may have been required by the creditor as a condition to giving the vehicle loan, such as a pay off of other creditors. The creditor may use the setting of the vehicle loan negotiation as a method of persuading buyers to obtain loans which they neither sought nor needed. Since the Legislature apparently did not want a buyer to enter the door of a vehicle dealer and come out with a trust deed on the buyer’s home, the broad language invalidating

real property security interests should extend to the entire vehicle inspired loan. [See Civ. Code §§ 2982.5(d)(1) and 2984.2(c).]

The creditor could argue that it may be entitled to an equitable lien for the non-vehicle portion of the loan. An equitable lien may be created when justice requires if a party intends to give a mortgage as security for a debt. [See generally Estate of Pitts (1933) 218 Cal. 184, 189; 22 P.2d 694; McColaan v. Bank of California Nat. Assn. (1929) 208 Cal. 329, 338; 281 P. 381; Lentz v. Lentz (1968) 267 Cal.App.2d 891, 894; 73 Cal.Rptr. 686; see also Forte v. Nolfi (1972) 25 Cal.App.3d 656, 692; 102 Cal.Rptr. 455 in which the court gave an unwitting assignee of a forged trust deed an equitable lien to the extent of the consideration received by the debtor who had originally intended to execute a trust deed.] However, the buyer cannot waive rights against the seller. [See Civ. Code 2983.7(c) and (e).] Thus, the buyer’s intent is essentially irrelevant since the buyer cannot waive the prohibition against trust deeds in transactions covered under Rees-Levering even if the buyer intends to do so. Moreover, the creditor’s right to an equitable lien, in any case, will depend on the circumstances of the case and whether justice would be served by the imposition of an equitable lien. If, for example, the creditor required an unsophisticated buyer to pay other obligations, particularly unsecured or low interest rate secured

obligations, as a condition to obtaining an automobile loan unlawfully secured by a trust deed, the creditor may have worsened the buyer’s financial condition. As a result, an equitable lien for the nonvehicle portion of the loan which the buyer did not seek or require would inequitably reward the creditor’s conduct; thus, the creditor should be left unsecured. Even if the creditor could receive an equitable lien for the non-vehicle portion of the loan, the creditor cannot nonjudically foreclose it. Since there is no power of sale, the equitable lien can be enforced only by judicial foreclosure. [See Code of Civ. Proc. § 726.]

An exception to the general rule that Rees-Levering prohibits real property liens may be found in Civil Code section 2982.5(b). That section permits the seller to assist the buyer in obtaining a loan “upon any security” for all or part of the down payment “or any other payment” on a conditional sale contract or purchase order. Rees-Levering does not prohibit a real property lien for such a loan. [See Civ. Code §§ 2982.5(b), 2984.2(b).]

The validity of a real property lien taken in connection with seller assisted financing may turn on whether the loan falls within Civil Code section 2982.5(b) or section 2982.5(d). These sections do not specify the size of the loans to which they respectively apply; therefore, there may be a dispute over whether a loan is for a downpayment or “any other payment” [Civ. Code § 2982.5(b)] or a

loan for “the full purchase price, or any part thereof.” [Civ. Code § 2982.5(d).] The legislative scheme apparently contemplates that the loans covered under Civil Code section 2982.5(b) are small in amount and are used for modest downpayments or pickup payments (the difference between the downpayment demanded by the seller and the amount given by the buyer toward the downpayment.) [ See Hernandez v. Atlantic Finance Co. of Los Angeles, supra, 105 Cal.App.3d 65, 76-77.] Lenders such as banks normally do not take real property liens for such relatively small amounts, and personal property brokers and consumer finance lenders which regularly make small loans for car purchases are precluded from taking any real property lien for loans under $5,000. [See Fin. Code §§ 22466 and 24466.] Thus, a specific prohibition on real property liens for small loans covered under Civil Code section 2982.5(b) was probably thought unnecessary. Since real property liens cannot be taken to secure loans for all or part of the purchase price or for financing under conditional sales contracts, it would be absurd to sanction a real property lien for a small loan. Given the protective purpose and policy of the Rees-Levering Act and its hostility to real property security, a seller assisted loan involving real property security should be deemed to be covered by Civ. Code §§ 2982.5(d) and 2984.2(a) and (c). Otherwise, Civ. Code § 2982.5(b) would become an exception which would destroy the rule.

Retail Installment Sales

The Unruh Act [Civ. Code § 1801 et seq.] governs the sale of goods and services for a deferred payment price, including finance charges, payable in installments. [See Civ. Code §§ 1802.3 -1802.6.] Any real property lien taken to secure payment on a contract for goods which are not to be attached to real property is void. [Civ. Code §§ 1804.3(b), 1804.4.) Thus, for example, liens securing contracts for carpeting installed by the tackless strip method are void because carpeting so installed is not attached to real property. [See People v. Custom Craft Carpets, Inc. (1984) 159 Cal.App.3d 676, 685; 206 Cal.Rptr. 12.]

In Custom Craft, the Court observed that whether goods are attached to real property is a question of fact. However, neither the Unruh Act nor Custom Craft equate an article’s being “attached to real property” with being a fixture. Therefore, the facts to be analyzed relate to the goods’ method and degree of attachment to the real property and not to the parties’ intent which is a fundamental element in establishing fixture status.

Other provisions of the Unruh Act affect the validity of a security interest in real property. For example, a retail installment contract for goods or services which contains a lien must contain a statutorily designated warning notice printed in a prescribed manner in the same language used in the contract; otherwise the lien is void and unenforceable. [Civ. Code § 1803.2(b)(3).] The Unruh Act also includes the following requirements:

1. A contract providing for a real property security interest must have the phrase “Security Agreement” printed in at least 12-point type at the top of the contract. [Civ. Code § 1803.2(b)(1)];

2. The entire agreement of the parties regarding cost and terms of payment including any promissory note or any other evidence of indebtedness must be contained in a single document. [Civ. Code § 1803.2(a); see Morgan v. Reasor Corp. (1968) 69 Cal.2d 881; 73 Cal.Rptr. 398];

3. The contract must contain all of the disclosures required by Regulation Z. [Civ. Code § 1803.3(b).] Regulation Z requires, in part, the disclosure of the existence of a security interest in property [12 C.F.R. § 226.18(m)] and the disclosure of the right of rescission. [12 C.F.R. § 226.23(b)];

4. The seller must not obtain the buyer’s signature on a contract containing blank spaces to be filled in

after it has been signed. [Civ. Code § 1803.4.]

Any prohibited contract provision is void. [Civ. Code § 1804.4.] Thus, for example, if the lien provision were blank when the customer signed the contract and were subsequently completed or if the lien were not part of a single document containing all of the costs or terms of payment, the lien provision should be declared void. Even if the lien were not declared void, the penalty against the seller for the violation of the Unruh Act is the loss of all finance charges, including those already collected [Civ. Code § 1812.7], which might sufficiently offset the amount in default to stop the foreclosure.

The Unruh Act applies to credit sales. The statutory scheme specifically deals with retail installment sales in which the seller extends credit by permitting the buyer to obtain the goods and services on a deferred payment basis. [See, e.g., Civ. Code §§ 1802.5, 1802.6.] The essence of the transaction is the sale, and the credit terms merely facilitate the sale. In practice, the seller frequently assigns the installment contract to a third party creditor such as a bank or finance company in the business of supplying consumer credit. Indeed, a seller under a retail installment contract often has no intention of extending credit to a buyer through the maturity date of the contract but nevertheless

enters into the contract with a view to assigning the contract soon after the sale to a creditor with which the seller had made previous arrangements for financing. See Morgan v. Reasor Corp., supra, 69 Cal.2d 881, 895.] Such prearranged assignment of the credit sale contract does not alter the characterization of the transaction as a credit sale. [See Boerner v. Colwell Co. (1978) 21 Cal.3d 37, 50; 145 Cal.Rptr. 380.]

The Unruh Act also applies to transactions, involving sales financed from the proceeds of seller assisted loans, that are credit sales in substance. [Civ. Code § 1801.6(a).] A seller assisted loan transaction has the same attributes as a credit sale. The buyer is willing to buy only on credit. The seller arranges for credit; however, instead of using a retail installment contract which is assigned to a third party creditor, the seller arranges for the creditor to loan the money directly to the buyer, and the seller receives the proceeds of the loan.

The conventional retail installment sale and the seller assisted loan transaction embody similar relationships and objectives. The buyer obtains goods on a deferred payment basis, but instead of making monthly payments to the creditor as the assignee of the installment contract, the buyer makes monthly payments to the creditor as the lender. The seller has arranged for credit for the buyer either through a direct loan by the

creditor or an “indirect loan” consisting of the creditor’s advancing money for the buyer’s purchase in exchange for receiving an assignment of the buyer’s installment obligation. The seller receives payment either in the form of the proceeds from the loan or the proceeds from the assignment. A transaction in the form of a sale financed by a seller assisted loan is strikingly similar to the transaction held to be a credit sale in Boerner v. Colwell Co., supra, 21 Cal.3d 37, 41-42, 50-51. The Legislature has declared that Boerner should be considered in determining whether a transaction is in substance a credit sale. [Civ. Code §1801.6(a).] Since a seller assisted loan transaction is in substance a credit sale, it should be governed by the Unruh Act restrictions regarding credit sales. [See 64 Ops.Cal.Atty.Gen. 722; see also Hernandez v. Atlantic Finance Co. of Los Angeles, supra, 105 Cal.App.3d 65 holding that seller assisted loans for automobile purchases were governed by the Rees-Levering Act.]

The Unruh Act also provides coverage for transactions which are loans both in substance and in form. This coverage applies when the lender and the seller share in the profits and losses of the sale and/or the loan or when the lender and the seller are related by common ownership and control and that relationship is a material factor in the loan transaction. [See Civ. Code § 1801.6(b).]

Creditors may attempt to shield seller assisted loan

transactions from the requirements of the Unruh Act by claiming that transactions in the form of loans are exempt from the Unruh Act unless the lender and seller share profits and losses or have common ownership and control as described in Civil Code section 1801.6(b). However, Civil Code section 1801.6(a) declares that the substance, not the form, of the transaction is paramount. The legislative intent expressed in Civil Code section 1801.6(a) dictates the construction of section 1801.6(b); thus, section 1801.6(b) cannot be read to exempt all transactions in the form of a loan regardless of the transactions true substance. Accordingly, section 1801.6(b) must be viewed as exempting certain actual loan transactions from the Unruh Act but not exempting credit sales cast in the form of loans.

3. Dispute as to What, if any. Amount Owed

a. Disputed Amount Owed

The notice of default should appropriately describe the nature of the breach. As the Court of Appeal observed, “The provisions of section 2924 of the Civil Code with reference to inclusion, in the notice of default, of a statement setting forth the nature of the breach ‘must be strictly followed.'” System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-53; 98 Cal.Rptr. 735.] A foreclosure sale should not be permitted if the amount of the

debt is disputed or uncertain. [See More v. Calkins (1892) 85 Cal. 177, 188; 24 P. 729; cf. Sweatt v. Foreclosure Co, (1985) 166 Cal.App.3d 273, 276; 212 Cal.Rptr. 350; but see Ravano v. Sayre (1933) 135 Cal.App. 60; 26 P.2d 515.] Accordingly, the sale may be enjoined until the court determines the correct amount owed. [See Producers Holding Co. v. Hills (1927) 201 Cal. 204, 209; 256 P. 207; More v. Calkins, supra, 85 Cal. 177, 188, 190; see also Hunt v. Smyth (1972) 25 Cal.App.3d 807, 837; 101 Cal.Rptr. 4; Lockwood v. Sheedy (1958) 157 Cal.App.2d 741, 742; 321 P.2d 862.] If some liability is admitted, then that amount may have to be tendered to do equity [see Meetz v. Mohr (1904) 141 Cal. 667, 673; 75 P. 298]; however, the court could enjoin the entire sale, under a defective notice of default which improperly states the nature of the default, notwithstanding the existence of a clear breach, and could permit the beneficiary to file a proper notice of default upon which the foreclosure may proceed. (See Lockwood v. Sheedy, supra, 157 Cal.App.2d 741, 742.) Of course, if there is no default (e.g. the full amount due has been tendered), a foreclosure is void. [See e.g., Lichty v. Whitney (1947) 80 Cal.App.2d 696, 702; 182 P.2d 582 (tender of amount due); Huene v. Cribb (1908) 9 Cal.App. 141, 144; 98 P. 78; see also Winnett v. Roberts (1979) 179 Cal.App.3d 909, 921-22, 225.]

b. Payment Excused

The trustor may also dispute whether any amount is owed if the beneficiary breaches its obligation to the trustor and the breach excuses the trustor’s performance. [See System Inv. Corp, v. Union Bank, supra, 21 Cal.App.3d 137, 154.]

c. Waiver or Estoppel to Claim Payment or Default

The trustor may deny that any amount is owed at that particular time, or may deny that the prescribed amount demanded is owed, if the beneficiary has waived the time requirements contained in the obligation by accepting late payments or if the beneficiary has accepted payments smaller than that permitted in the contract.

d. Offsetting Obligation

The trustor also may offset against the amount claimed by the beneficiary any amount due the trustor from the beneficiary. [See Hauger v. Gates (1954) 42 Cal.2d 752, 755; 249 P.2d 609; Richmond v. Lattin (1883) 64 Cal. 273; 30 P. 818; Goodwin v. Alston (1955) 130 Cal.App.2d 664, 669; 280 P.2d 34; Cohen v. Bonnell (1936) 14 Cal.App.2d 38; 57 P.2d 1326; Zarillo v. Le Mesnacer (1921) 51 Cal.App. 442; 1196 P.902 (damages for conversion offset against debt secured by chattel mortgage); Williams v. Pratt (1909) 10 Cal.App. 625, 632; 103 P. 151.] In Goodwin, supra, the mortgagor

established that the mortgagee charged usurious interest, and the penalty of the trebled interest payments along with other amounts were setoff against the mortgage debt. As a result, the debt was effectively satisfied, the mortgage was thereby extinguished and no foreclosure was permitted, and the mortgagee was held liable to the mortgagor for damages. (See 130 Cal.App.2d at 668-69.)

contract. (Id.)

4. De Minimis Breach

Foreclosure is a drastic remedy, and courts will not enforce a forfeiture if the default is de minimis in nature such as a minor delay in making an installment payment. [See Bavpoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1988) 168 Cal.App.3d 818, 829-32; 214 Cal.Rptr. 531.]

5. Defective Procedure

The trustee’s failure to comply with the statutorily mandated

procedures for a foreclosure sale is an important basis for attacking the foreclosure sale. The trustor bears the onus of establishing the impropriety of the sale, for a foreclosure is presumed to be conducted regularly and fairly in the absence of any contrary evidence Stevens v. Plumas Eureka Annex Min. Co. (1935) 2 Cal.2d 493, 497; 41 P.2d 927; Sain v. Silvestre (1978) 78 Cal.App.3d 461, 471 n. 10; 144 Cal.Rptr. 478; Hohn v. Riverside County Flood Control & Wat. Conserv. Dist. (1964) 228 Cal.App.2d 605, 612; 39 Cal.Rptr. 647; Brown v. Busch (1957) 152 Cal.App.2d 200, 204; 313 P.2d 19.] The presumption can be rebutted by contrary evidence [See, e.g., Wolfe v. Lipsv (1985) 163 Cal.App.3d 633,639; 209 Cal.Rptr. 801] and the courts will carefully scrutinize the proceedings to assure that the trustor’s rights were not violated. [See e.g., System Inv. Corp. v. Union Bank, supra, 21 Cal.App.3d 137, 153; Stirton v. Pastor (1960) 177 Cal.App.2d 232, 234; 2 Cal.Rptr. 135; Brown v. Busch, supra, 152 Cal.App.2d 200, 203-04; Pierson v. Fischer (1955) 131 Cal.App.2d 208, 214; 280 P.2d 491; Pv v. Pleitner, supra, 70 Cal.App.2d 576, 579.]

a. Defective Notice of Default

System Inv. Corp. v. Union Bank, supra, 21 Cal.App.3d 137, 152-53; Lockwood v. Sheedy. supra, 157 Cal.App.2d 741, 742.] Defective service of the notice of default will also invalidate the sale procedure. [See discussion in Chapter II, supra, “Adequacy of Notice to Trustor.]

b. Defective Notice of Sale

c. Improper Conduct of Sale

Postponements

to bid than if other bidders appear who are qualified to bid enough to satisfy the unpaid debt.

A lawyer representing a client whose home has been sold at a foreclosure sale involving discretionary or beneficiary directed

reason for the postponement is defective. Any sale held pursuant to the defective notice may be held to be improper.

e. Bidder Collusion

One of the more pernicious aspects of foreclosure sales — and one of the most difficult to prove — is the existence of agreements among bidders to suppress bidding. The arrangement may consist of one bidder paying the others not to bid. The bidders may also agree that one of the group will buy the property without competition and that then the group will hold a secret auction among themselves to determine who will be the ultimate purchaser. The difference between the purchase price at the public auction and the ultimate purchase price determined at the secret auction will be divided among the colluding parties; thus, junior lienholders and the trustor are deprived of surplus funds which would have resulted from open and competitive bidding.

Such bid rigging is clearly illegal. Offering or accepting

consideration not to bid, or fixing or restraining bidding at a foreclosure sale, is specifically declared unlawful and constitutes a crime. [Civ. Code § 2924h(f).] Agreements between bidders to fix or restrain bidding, to make sham bids, or to become a party to a fake sale have been routinely denounced as illegal, void, unenforceable and a fraud on the public. [See Russell v. Soldinaer (1976) 59 Cal.App.3d 633, 641-45; 131 Cal.Rptr. 145; Roberts v. Salot (1958) 166 Cal.App.2d 294, 298-99; 333 P.2d 232; see also Haley v. Bloomouist (1928) 204 Cal. 253, 256-67; 268 P. 365; Packard v. Bird (1870) 40 Cal. 378, 383; Jenkins v. Frink (1866) 30 Cal. 586, 591-92; 89 Am.Dec. 134.] The problem of determining market price by secret arrangement rather than by open bidding was most clearly addressed in Crawford v. Maddux (1893) 100 Cal. 222; 34 P. 651. In Crawford, a bidder at an execution sale was willing to purchase the property at several times the amount of the judgment. The bidder agreed with another that the other person should refrain from bidding, that the bidder would buy the property for the minimum amount, and that the bidder would pay the other person the difference between the purchase price and the maximum price the bidder would have been willing to pay if the sale were open and competitive. The Supreme Court had no difficulty in concluding that the arrangement “was against public policy, and wholly void.” (Id. at 225.)

The chilling of bidding at a trustee’s sale is a fraud on the

trustor, and the trustor may have the sale vacated. [Bank__of America Nat¹!. Trust & Sav. Ass’n. v. Reidv (1940) 15 Cal.2d 243, 248; 101 P.2d 77; Roberts v. Salot, supra, 166 Cal.App.2d 294, 299; see Bertschman v. Covell (1928) 205 Cal. 707, 710; 272 P. 571 (dictum).] The fraudulent bidder not only will have to return the property but also will be liable for any encumbrances placed on the property. See Roberts v. Salot, supra, 166 Cal.App.3d 294, 301.] The trustor’s damage is not measured by the difference between the artificially low public sale price and the secret price paid by one of the bidders to his co-conspirators. The appropriate measure of damages should be the fair market value of the property at the time of the sale less the value of the liens against the property. [See Munaer v. Moore (1970) 11 Cal.App.3d 1, 11; 89 Cal.Rptr. 323.] The bidding restraint is illegal regardless of whether small or large amounts are involved; the bidders cannot determine the trustor’s damage by their own private manipulations. [See Crawford v. Maddux, supra, 100 Cal. 222, 225.]

The bidding conspiracy may also be actionable under the Cartwright Act which denounces combinations of two or more people to restrain trade or commerce. [See Bus. & Prof. Code §§ 16720(a), 16726.] Violations of the Cartwright Act contain substantial sanctions: “Any person who is injured in his business or property by reason of . . .” an unlawful restraint of trade may recover treble damages and reasonable attorney’s fees and costs. [Bus. &

Prof. Code § 16750(a).] The Cartwright Act is patterned after the Sherman Act, and federal cases interpreting federal law apply to the construction of state law. [E.g., Partee v. San Diego Chargers Football Co. (1983) 34 Cal.3d 378, 392; 466 U.S. 904, cert, den.; 194 Cal.Rptr. 367; Mailand v. Burckle (1978) 20 Cal.3d 367, 376; 143 Cal.Rptr. 1; Marin County Bd. of Realtors v. Palsson (1976) 16 Cal.3d 920, 925; 130 Cal.Rptr. 1.]

Proving a Cartwright violation may be a difficult task. The threshold question is whether there was an agreement to restrain bidding. The answer to this question, of course, is crucial not only to the antitrust claim but also to attacking the sale on common law grounds. In the absence of direct evidence, circumstantial evidence may point to a conspiracy. For example, A, B, and C are professional and experienced bidders at foreclosure sales. Each has had substantial dealings with the others. A, B, and C attend the foreclosure sale and each qualifies to bid more than $10,000 over the minimum opening bid placed by the beneficiary. A buys the property for $1 over the minimum bid. Eight days later, A deeds the property to B for $6,000 more than A’s purchase price. Similar transactions have occurred involving the three bidders, and each has become the ultimate purchaser at different times. Such pattern of conduct evinces a bidding agreement. In order to gather other evidence needed to establish an agreement, a lawyer representing a homeowner should obtain,

through discovery from the trustee, all records revealing who attended the sale, who qualified to bid and for how much, and to whom the trustee’s deed was issued.

If a conspiracy can be shown, the Cartwright plaintiff will have to address the legal issue of whether the bidding is trade or commerce. This should not be difficult. The Cartwright Act has been expansively interpreted: “. . .it forbids combinations of the kind described with respect to every type of business.” Soeeale v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 43; 172 P.2d 867; see Marin County Bd. of Realtors, Inc. v. Palsson, supra, 16 Cal.3d 920, 925-28.] The Speeale court also recognized that the Cartwright Act reflects this state’s common law proscriptions against competitive restraints and price fixing. [See 29 Cal.2d at 44.] Virtually any business carried on for gain is embraced in the antitrust laws [see United States v. National Assn. of Real Estate Bds. (1950) 339 U.S. 485, 490-92; 70 S.Ct. 711], and the antitrust laws, in reaching all commerce, touch transactions which may be noncommercial in character and may involve illegal or sporadic activity. [See United States v. South-Eastern Underwriters Assn. (1944) 322 U.S. 533, 549-50; 64 S.Ct. 1162.]

Agreements restraining bidding are clearly the type of combinations prohibited under the antitrust laws. Price fixing agreements are per se unlawful under the Cartwright Act. [E.g.,

Mailand v. Burckle (1978) 20 Cal.3d 367, 376-77; 143 Cal.Rptr. 1; Kollincr v. Dow Jones & Co. (1982) 137 Cal.App.3d 709, 721; 189 Cal.Rptr. 797; Rosack v. Volvo of America Corp. (1982) 131 Cal.App.3d 741, 751; 182 Cal.Rptr. 800, cert, den. (1983) 460 U.S. 1012.] An agreement to submit collusive, rigged bids is likewise a per se violation. [See e.g., United States v. Brighton Bldq. & Maintenance Co. (7th Cir. 1979) 598 F.2d 1101, 1106, cert. den. 444 U.S. 840; United States v. Champion International Corp. (9th Cir. 1977) 557 F.2d 1270, cert, den. 434 U.S. 938; United States v. Flom (5th Cir. 1977) 558 F.2d 1179, 1183.]

After establishing bidder conspiracy and a violation of the Cartwright Act, the complainant property owner then will have to show injury emanating from the violation to establish entitlement to the treble damage and the attorney’s fee and cost remedies. [Bus. & Prof. Code § 16750(a); see A. B.C. Distrib.’ Co. v. Distillers Distrib. Corp. (1957) 154 Cal.App.2d 175, 191; 316 P.2d 71.] The property owner need not show a competitive injury, for the protections of the Cartwright Act extend to consumers and all others who are victimized by the violation of law. [See Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d 7, 26; 126 Cal.Rptr. 327.] The nature and extent of the injury, however, may be difficult to prove because of the difficulty in determining the price at which the property would have sold in the absence of a conspiracy to fix the price.

For example, suppose property worth $100,000 is sold to satisfy the $19,990 unpaid balance of a note secured by a first trust deed. Only two bidders attend the sale, and they conspire. One of the bidders purchases the property for $20,000 and pays the other $10,000. Has the trustor been injured by $10,000, $80,000, or some other amount? Crawford v. Maddux, supra, 100 Cal. 222, 225; 34 P. 651 indicates that the consideration paid for the suppression of bidding is not the common law measure of damage for the illegal bidding restraint; however, that amount should logically be the minimum amount of the injury under the Cartwright Act. The purchaser would have paid at least that additional amount to acquire the property at the public sale in the absence of collusion since the purchaser in fact paid that amount as part of the collusive sale.

Normally, the damages in a price fixing case consist of the full amount of the overcharge — i.e., the difference between the artificially high price and the price that would have otherwise prevailed. [See e.g., National Constructors Assn. v. National Electrical Contractors (D. Md. 1980) 498 F.Supp. 510, 538, mod. on other grounds (4th Cir. 1982) 678 F.2d 492.] Similarly, if prices are set artificially low, the damages will be the difference between the artificially low price and the price which would have been charged to fully maximize profits. [See Knutson v. Daily Review, Inc. (9th Cir. 1976) 548 F.2d 795, 812, cert. den. (1977)

433 U.S. 910.] Although no cases are specifically on point, an argument should be made that the antitrust injury suffered by a property owner whose home was sold through collusive bidding should be the difference between the artificially low price and the reasonable or fair value of the property at foreclosure. This view is buttressed by the holding in Munaer v. Moore, supra, 11 Cal.App.3d 1, 11 that the trustee’s or beneficiary’s liability for an improper sale should be the fair market value of the property in excess of encumbrances.

However, it could be argued that even in the absence of collusive bidding, “. . . it is common knowledge that at forced sales such as a trustee’s sale the full potential value of the property being sold is rarely realized . . . .” strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 876; 105 Cal.Rptr. 395.] Complete fair market value cannot be realistically expected in the context of a foreclosure sale. Consequently, it would be unlikely that the property’s full value would be realized at a foreclosure sale even without the bidding conspiracy. On the other hand, some courts consider foreclosure sales prices at less than 70 percent of fair market value to be unfair, at least for bankruptcy purposes. [See e.g., Durrett v. Washington Nat. Ins. Co. (5th Cir. 1980) 621 F.2d 201; the rejection of the Durrett fair value rationale in In re Madrid (Bank.App.Pan. 9th Cir. 1982) 21 B.R. 424, aff’d on other grounds (9th Cir. 1984) 725 F.2d 1197 was

predicated on a noncollusive, regularly conducted sale.] Accordingly, as an alternative to the fair market value measure of damage, the measure of damages could be deemed the difference between the collusive bid price and 70 percent of the fair market value of the property less encumbrances.

The collusive bidder should not be permitted to complain that a more precise measure of damage based on the ultimate sale price in an open and competitive public auction was not used, because the bidding conspiracy itself prevented a more precise evaluation of the measure of damages. As the United States Supreme Court observed,

Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the

case, which he alone is responsible for making, were otherwise.

There is no sound reason in such a case, as there may be, to some extent, in actions upon contract, for throwing any part of the loss upon the injured party, which the jury believe from the evidence he has sustained; though the precise amount cannot be ascertained by a fixed rule, but must be matter of opinion and probable estimate. And the adoption of any arbitrary rule in such a case, which will relieve the wrong-doer from any part of the damages, and throw the loss upon the injured party, would be little less than legalized robbery.

Whatever of uncertainty there may be in this mode of estimating damages, is an uncertainty caused by the defendant’s own wrongful act; and justice and sound public policy alike require that he should bear the risk of the uncertainty thus produced. . . . [citation omitted]. Story Parchment Co. v. Patterson Paper Co. (1931) 282 U.S. 555, 563-65; 51 S.Ct. 248.

See Biaelow v. RKO Radio Pictures, Inc. (1946) 327 U.S. 251, 264-66; 66 S.Ct. 574.]

Trustee’s Unfair Conduct

As previously mentioned, the trustee must conduct the sale “fairly, openly, reasonably, and with due diligence and sound discretion to protect the rights of the mortgagor and others, using all reasonable efforts to secure the best possible or reasonable price.” Baron v. Colonial Mortgage Service Co. (1980) 111 Cal.App.3d 316, 323; 168 Cal.Rptr. 450.] The trustee’s obligations in conducting a sale and its duty to the trustor are discussed in detail in Chapter II B 7, supra, “Conduct of the Foreclosure Sale”.] Obviously, a sale tainted with the trustee’s fraud or improper conduct is subject to attack, and the trustee may be liable to the trustor as well as to innocent bidders. (See Block v. Tobin, supra, 45 Cal.App.3d 214.]

Inadequacy of Price

The cases are legion that inadequacy of price, even gross inadequacy of price, will not justify a repudiation of a trustee’s sale in the absence of fraud, unfairness, or irregularity of some type. [See e.g., Scott v. Security Title Inc. & Guar. Co., supra, 9 Cal.2d 606, 611; Prudential Ins. Co. of America v. Sly (1937) 7 Cal.2d 728, 731; 62 P.2d 740, cert. den. 301 U.S. 690; Encelbertson v. Loan & Building Assn. (1936) 6 Cal.2d 477, 479; 58 P.2d 647; Central Nat. Bank of Oakland v. Bell (1927) 5 Cal.2d 324, 328; 54

P.2d 1107; Stevens v. Plumas Eureka Annex Min. Co., supra. 2 Cal.2d 493, 496; 41 P.2d 927; Baldwin v. Brown (1924) 193 Cal. 345; 352-53; 224 P. 462; Sargent v. Shumaker. supra, 193 Cal. 122, 129; 223 P. 464; Winbialer v. Sherman (1917) 175 Cal. 270, 275; 165 P. 943; Crummer v. Whitehead (1964) 230 Cal.App.2d 264, 266; 40 Cal.Rptr. 826; Lancaster Security Inv. Corp. v. Kessler (1958) 159 Cal.App.2d 649, 655; 324 P.2d 634.]

The fraud, unfairness, or irregularity which must accompany inadequate price in order for the sale to be set aside, must be such “as accounts for and brings about the inadequacy of price.” Stevens v. Plumas Eureka Annex Min. Co., supra, 2 Cal.2d 493, 496.] Thus, the inadequacy of price must be caused by or related to the irregularity or to some misconduct by the trustee. [See e.g., Sargent v. Shumaker. supra, 193 Cal. 122, 131-33; Crofoot v. Tarman (1957) 147 Cal.App.2d 443, 446-47; 305 P.2d 56; Bank of America Nat’l. Trust & Sav. Ass’n. v. Century Land & Wat. Co. (1937) 19 Cal.App.2d 194, 196; 65 P.2d 109.] In Crofoot, for example, the trustee had done no wrong, and the court rejected the trustor’s argument that misinformation supplied by someone other than the trustee when coupled with inadequate price afforded grounds for relief.

The quantum of fraud, unfairness, or irregularity needed to avoid a foreclosure sale may be slight, especially if the

inadequacy of price is great. [See e.g., Sargent v. Shumaker, supra, 193 Cal. 122, 129; Winbialer v. Sherman, supra, 175 Cal. 270, 275; Bank of Seoul & Trust Co. v. Marcione (1988) 198 Cal.App.3d 113, 119; Whitman v. Transtate Title Co. (1988) 165 Cal.App.3d 312, 323.] Inadequacy of price is indicative of fraud and will support a trial court’s finding of fraud if one is made. [See Scott v. Security Title Inc. & Guar. Co., supra, 9 Cal.2d 606, 612.]

If the trustor’s property is sold for an inadequate price, the trustor’s loss for breaching the obligation and trust deed far exceeds the beneficiary’s damage from the breach. Indeed, the beneficiary reaps a windfall if the beneficiary purchases the property at the foreclosure sale for an inadequate price. Arguably, the clause in the trust deed which permits the sale at such a dramatically low price could be construed to be a provision authorizing an impermissible forfeiture or penalty or providing for what is in effect punitive damages for the breach. The Supreme Court has apparently rejected this viewpoint and has stated that the trustor has ample opportunity after the recordation of the notice of default to avoid the potentially harsh consequences of foreclosure. See Smith v. Allen, supra, 68 Cal.2d 93.] In Smith, the Supreme Court observed that if:

. the borrower has a substantial equity in the

property, the above mentioned statutory provisions (Civ. Code §§ 2924 et sea.) afford him an opportunity to refinance his monetary obligations or to sell his equity to a third party. (Id. at 96.)

The court concluded that the Legislature intended that a proper “foreclosure sale should constitute a final adjudication of the rights of the borrower and the lender.” (Id.)

The recent legislative denunciation of unconscionability may point to a different result in cases involving significantly inadequate prices. Indeed, the new statutes regarding unconscionability may lead California to recognize the well established equity rule that extreme inadequacy of price in itself justifies the overturning of a foreclosure sale. [See Washburn, “The Judicial and Legislative Response to Price Inadequacy in Mortgage Foreclosure Sales,” 53 So.Cal.L.Rev. 843, 862-69.] The new statutes and accompanying legislative findings may also undermine the rationale of cases like Smith holding that the nonjudicial foreclosure process does not produce forfeitures or other impermissible, inequitable results.

The insertion of an unconscionable provision into a contract is deemed unfair or deceptive. [Civ. Code § 1770(s).] If a court finds that a contract or any clause of the contract is

unconscionable, the court may refuse to enforce the contract or the unconscionable provision or may limit the unconscionable provision to avert any unconscionable result. [Civ. Code § 1670.5(a).] It is unlawful, and perhaps criminal, for any person to participate in a transaction involving a residence already in foreclosure whereby that person takes unconscionable advantage of the homeowner. [Civ. Code § 1695.13.] Any such transaction resulting in unconscionable advantage is subject to rescission. [Civ. Code § 1695.14.]

Moreover, the express policy of this state is “to preserve and guard the precious asset of home equity, and the social as well as economic value of homeownership.” [Civ. Code § 1695(b).] This state has adopted the national housing goal — “the provision of a decent and a suitable living environment for every American family. …” [Health & Safety Code § 50002.] The Legislature has recognized the “vital statewide importance” of housing, in part, “as an essential motivating force in helping people achieve self-fulfillment in a free and democratic society.” [Health & Safety Code § 50001(a).] Accordingly, “It is the policy of the State of California to preserve home ownership.” [Stats. 1979, c. 655, § 1(g), p. 2016.] The Legislature was mindful, however, that the foreclosure process does not provide complete protection to homeowners whose homes are in jeopardy:

Many homeowners in this state are unaware of the legal rights and options available to them once foreclosure proceedings have been initiated against their homes. The present foreclosure process fails to provide sufficient meaningful information to homeowners to enable them to avoid foreclosure or save the equity in their homes. (Stats. 1979, c. 655, § 1(c), p. 2016.)

In light of the legislative concern about continued home ownership, the preservation of home equity, and the operation of unconscionable contracts, the courts should not tolerate the use of the power of sale to deprive a homeowner of substantial equity. The loss of equity may not only be financially disastrous but may prevent the homeowner from acquiring another home immediately after the foreclosure or likely ever thereafter. Sales made at unconscionably low prices should be voided under the enhanced power of the court to avoid unconscionable results in the enforcement of contracts.

Traditionally, courts in the United States adopted Lord Eldon’s rule that “a sale will not be set aside for inadequacy of price, unless the inadequacy be so great as to shock the conscience, or unless there be additional circumstances against its unfairness . . . .* Graffam v. Burgess (1886) 117 U.S. 180, 191-92.] This rule was adopted in California with respect to execution

sales, and, in Odell v. Cox (1907) 151 Cal. 70, 74; 90 P. 194, the California Supreme Court recognized that:

. . . according to very respectable authority, inadequacy of price may be so gross as in itself to furnish satisfactory evidence of fraud or misconduct on the part of the officer or purchaser, and justify vacating the sale.

See Young v. Barker (1948) 83 Cal.App.2d 654, 659; 189 P.2d 521.]

The California cases dealing with inadequacy of price in trustee’s sales are based on execution sale cases such as Odell, supra♦ [See e.g., Winbialer v. Sherman, supra, 175 Cal. 270, 275.] California courts have not expressly adopted the first element of Lord Eldon’s rule—that inadequacy of price so great as to shock the conscience will invalidate a sale—in examining trustee’s sales; the courts have expressly accepted only the second element--that inadequate price, when coupled with unfairness which produces the inadequacy, will render a sale voidable. The cases have neither expressly rejected the first element of Lord Eldon’s rule nor explained the element’s omission from the general formulation of the rule on inadequacy of sale’s price. Federal common law, however, recognizes that a trustee’s sale may be invalidated if the sale price is so low that it shocks the conscience. [See United

States v. Wells (5th Cir. 1968) 403 F.2d 596, 598; United States v. MacKenzie (D. Nev. 1971) 322 F.Supp. 1058, 1059, aff’d. (9th Cir. 1973) 474 F.2d 1008.] Since California now statutorily acknowledges the equitable power of the court to safeguard parties from the oppression of unconscionable contractual terms, California courts should embrace the rule prohibiting sales based on shockingly insignificant sales prices.

Enjoining the Sale

1. Propriety of Injunctive Relief

An action to enjoin a foreclosure sale is a well recognized remedy to prevent an unwarranted foreclosure. [See 2 Ogden’s, Rev. Cal. Real Prop. Law 959.] An injunction may issue to prevent acts which: (a) cause great or irreparable injury; (b) violate the party’s rights and tend to render the judgment ineffectual; (c) create harm for which money damages are inadequate; (d) may lead to a multiplicity of actions; and (e) violate a trust. [Code of Civ. Proc. § 526; see Civ. Code §§ 3368, 3422.]

In determining whether to issue any preliminary injunction, the trial court must examine two interrelated factors:

The first is the likelihood that the plaintiff will

prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70; 196 Cal.Rptr. 715.

[See e.g., Robbins v. Superior Court (1985) 38 Cal.3d 199, 206; 211 Cal.Rptr. 398; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527-28; 67 Cal.Rptr. 761; Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust, supra, 168 Cal.App.3d 818, 824.] Whether or not the trustor is likely to prevail on the merits is obviously a question of fact in each case. If the trustor is not likely to prevail, the injunction may be denied notwithstanding any irreparable harm which may attend the foreclosure:

In a practical sense it is appropriate to deny an injunction where there is no showing of reasonable probability of success, even though the foreclosure will create irreparable harm, because there is no justification in delaying that harm where, although irreparable, it is also inevitable. Jessen v. Keystone Sav. & Loan Assn. (1983) 142 Cal.App.3d 454, 459; 191 Cal.Rptr. 104.

Foreclosure is a “drastic sanction.” Bavpoint Mortgage Corp.

v. Crest Premium Real Estate etc. Trust, supra, 168 Cal.App.3d 818, 837.] Irreparable injury will almost always be involved in a home foreclosure, especially if the grounds for invalidating the foreclosure rest on the voidability rather than the voidness of the transaction. Since a bona fide purchaser may buy the property at a foreclosure sale free of many, if not all, of a particular trustor’s defenses to the sale, the court’s failure to enjoin an improper foreclosure may doom the trustor to the loss of the property. “The Status of Bona Fide Purchaser or Encumbrancer”.] Furthermore, courts presume in a foreclosure context that the property is unique, that its loss is irreparable, and that money damages are inadequate unless the property is being openly marketed and has no special value to the owner other than its market price. [See Jessen v. Keystone Sav. & Loan Assn.. 142 Cal.App.3d 454, 457-58; 191 Cal.Rptr. 104; Stockton v. Newman (1957) 148 Cal.App.2d 558, 564; 307 P.2d 56.] In addition, the trustor will suffer irreparable injury because the trustor generally has no right of redemption after a foreclosure sale. [See discussion in Chapter II B 10a, supra, “Redemption”.]

A foreclosure will often render ineffectual any ultimate relief that may be awarded. If the trustor, for example, is entitled to damages but not rescission in a particular transaction, the trustor would be allowed to retain the property and would be compensated in damages. But, such a judgment would be rendered

ineffectual through the loss of the property at foreclosure. [See Stockton v. Newman, supra, 148 Cal.App.2d 558, 563-64.] Similarly, a foreclosure would render moot the trustor’s attempt to cancel a trust deed if the property were to be sold to a bona fide purchaser. Thus, an injunction is necessary to preserve the status quo. [See Weinqand v. Atlantic Sav. & Loan Assn. (1970) 1 Cal.3d 806, 819; 83 Cal.Rptr. 650.]

Courts have held that injunctions are appropriate to restrain foreclosure sales in various contexts. The following is an illustrative but not exclusive list: (a) no default [see Freeze v. Salot (1954) 122 Cal.App.2d 561, 564; 266 P.2d 140; cf. Salot v. Wershow (1958) 157 Cal.App.2d 352, 355; 320 P.2d 926]; (b) disputes about the amount owed [see e.g., Paramount Motors Corp. v. Title Guar. & Trust Co. (9th Cir. 1926) 15 F.2d 298, 299; More v. Calkins, supra, 85 Cal. 177, 188]; (c) disputes about the amount owed because of the trustor’s offsetting claims [see Hauger v. Gates (1954) 42 Cal.2d 752, 756]; (d) fraud [see e.g., Stockton v. Newman, supra, 148 Cal.App.2d 558, 563-64; Daniels v. Williams (1954) 125 Cal.App.2d 310, 312-13; 270 P.2d 556; see also U.S. Hertz, Inc. v. Niobrara Farms (1974) 41 Cal.App.3d 68, 79; 116 Cal.Rptr. 44]; (e) no consideration [see Ybarra v. Solarz (1942) 56 Cal.App.2d 342; 132 P.2d 880 (no consideration for novation creating balloon payment)]; (f) improper notice of default [see Lockwood v. Sheedv, supra, 157 Cal.App.2d 741, 742; see also Strike

v. Trans-West Discount Corp. (1979) 92 Cal.App.3d 735; 155 Cal.Rptr. 132 (court vacates notice of default and permits new notice, but disallows usurious interest), app. dis. 444 U.S. 948; System Inv. Corp. v. Union Bank, supra, 21 Cal.App.3d 137, 152-53; (g) trustee’s breach of duty in conducting the sale [see Baron v. Colonial Mortgage Service Co., supra, 111 Cal.App.3d 316, 324]; (h) trustor’s minor delays in making installment payments [see Bavpoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust, supra, 168 Cal.App.3d 818, 827.]

Unless the obligation or trust deed is fundamentally infirm so that no foreclosure would be proper, most preliminary injunctive relief will only temporarily halt the foreclosure until corrective measures are taken. For example, if the amount is disputed, the foreclosure may be enjoined until the court determines the amount properly owed. [See Producers Holding Co. v. Hill, supra, 201 Cal. 204, 209; More v. Calkins, supra, 85 Cal. 177, 188.] If the notice of default is defective, the court may enjoin the sale on that particular notice of default without prejudice to the beneficiary’s recording a proper notice of default. [See Lockwood v. Sheedv, supra, 157 Cal.App.2d 741, 742.] Alternatively, the court could vacate a notice of default containing an improper demand (e.g., usurious interest) without issuing a preliminary injunction and permit the beneficiary to file a proper notice. [See Strike v. Trans-West Discount Corp., supra, 92 Cal.App.3d 735; 155 Cal.Rptr.

132.]

2. Scope of Injunctive Relief

The injunctive relief requested should be for an order restraining the trustee and the beneficiary. If only the trustee is enjoined, the beneficiary might be able to circumvent the order by substituting a new trustee. [See Civ. Code § 2934a.] A trustee can employ an agent or subagent to perform the trustee’s tasks under a trust deed. [See Civ. Code § 2924d(d); Orloff v. Pece (1933) 134 Cal.App. 434, 436; 25 P.2d 484.] Therefore, the injunction should cover all agents, subagents, employees, representatives and all other persons, corporations, or other entities which act by, on behalf of, or in concert with the trustee and beneficiary.

The injunction should apply not only to selling, attempting to sell, or causing the sale of the property, but also should enjoin any act authorized or permitted by Civil Code §§ 2924, 2924b, 2924f, 2924g, and 2934a in connection with or incident to the sale. Some of the acts authorized or permitted by these sections may not be construed to be covered by a general anti-sale injunction.

For example, in American Trust Co. v. De Albergria (1932) 123 Cal.App. 76, 78; 10 P.2d 1016, the trustee postponed a sale after

a temporary restraining order issued and held the sale on the postponed date after the order was dissolved. The court held that the order restraining the continuing of the sale did not preclude postponements. Frequently, if a temporary restraining order prevents a sale, the trustee will postpone the sale so that it will be held on the same day as and immediately after the hearing on the preliminary injunction. If the preliminary injunction is denied, the sale will take place post haste. If, however, the trustee is prevented from postponing the sale, a new notice of sale will have to be given, and the trustor will have the opportunity to use the new notice of sale period to raise money or consider other appropriate remedies, including bankruptcy. If the sale is postponed in violation of a restraining order, the sale will be voidable. See Powell v. Bank of Lemoore (1899) 125 Cal. 468, 472; 58 P. 83; Baalev v. Ward (1869) 37 Cal. 121 139; 10 P.2d 1016; American Trust Co. v. De Alberqria, supra, 123 Cal.App. 76, 78.]

The injunction should also restrain the beneficiary from transferring the note and trust deed without informing the transferee of the trustor’s claims and defenses. Otherwise, the transferee may be a holder in due course and take the obligation and security free of the trustor’s rights. [See e.g., Szczotka v. Idelson (1964) 228 Cal.App.2d 399; 39 Cal.Rptr. 466;

National Banks

The statute precluding preliminary injunctions against national banks [12 U.S.C. § 91] does not prevent a state court from issuing a preliminary injunction against a national bank to restrain a nonjudicial foreclosure pending the adjudication of the trustor’s rights. [See Third National Bank In Nashville v. Impac Ltd., Inc. (1977) 432 U.S. 312; 97 S.Ct. 2307.] Kemple v. Security-First Nat. Bank (1967) 249 Cal.App.2d 719; 57 Cal.Rptr. 838 and First Nat. Bank of Oakland v. Superior Court (1966) 240 Cal.App.2d 109; 49 Cal.Rptr. 358 are contra but no longer good authority.]

Tender

The general rule is that the trustor cannot obtain an injunction against a foreclosure without tendering the amount owed. see Sipe v. McKenna (1948) 88 Cal.App.2d 1001, 1006; 200 P.2d 61.] Similarly, the court may dissolve an injunction it issued if the trustor does not tender what is owed. [See Meetz v. Mohr, supra, 141 Cal. 667, 672-73.] If the injunction action is commenced during the reinstatement period, the tender would have to be the amount needed to cure the default. [See Civ. Code § 2924c; Bisno v. Sax (1959) 175 Cal.App.2d 714, 724; 346 P.2d 814.]

A tender is an offer of full performance. An offer of partial performance has no effect. [Civ. Code § 1486; see e.g., Gaffrev v. Downey Savings & Loan Assn. (1988) 200 Cal.App.3d 1154, 1165; 246 Cal.Rptr. 421.] The tender cannot be conditioned on any act of the beneficiary which the beneficiary is not required to perform. [Civ. Code § 1494; see e.g., Karlsen v. American Sav. & Loan Assn.. supra, 15 Cal.App.3d 112, 118.]

A tender is effective only if the trustor has the present ability to fulfill the tender. [See Civ. Code § 1495; see e.g., Napue v. Gor-Mev West, Inc. (1985) 175 Cal.App.3d 608, 621; Karlsen v. American Sav. & Loan Assn., supra, 15 Cal.App.3d 112, 118.] If the trustor’s continued ability to perform is at issue during or at the conclusion of an action, the court may consider the trustor’s ability at that time. [See Napue v. Gor-Mev West, Inc., supra, 175 Cal.App.3d 608, 621-22.] The trustor’s offer to sell the property to pay the debt is a sufficient tender of full payment if the property is worth considerably more than the debt. [See In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231.] On the other hand, the trustor’s mere hope that a lender would release property from the lien, that the property would be sold, and that any additional amount owed would be refinanced is an insufficient tender. [See Karlsen v. American Sav. & Loan Assn., supra, 15 Cal.App.3d 112, 118.)

A proper tender “stops the running of interest on the obligation, and has the same effect upon all its incidents as performance thereof.” [Civ. Code § 1504.] A valid tender of a payment, even if refused, precludes a foreclosure based on the failure to make that payment unless the entire balance of the obligation has been accelerated. [See Bisno v. Sax, supra, 175 Cal.App.2d 714, 724.]

If the entire amount of the obligation is tendered, the lien created by the deed of trust is discharged even if the tender is refused: the creditor maintains the right to collect the amount owed but loses its security interest. [See Civ. Code §§ 1504, 2905; Sondel v. Arnold (1934) 2 Cal.2d 87, 89; 39 P.2d 793; Lichtv v. Whitney, supra, 80 Cal.App.2d 696, 701-02; Wagner v. Shoemaker (1938) 29 Cal.App.2d 654, 657; 85 P.2d 229; Wiemever v. Southern T. & C. Bank (1930) 107 Cal.App. 165, 173-74; 290 P. 70.] As a result of the discharge of the trust deed, the trustee has no power to proceed with a foreclosure. [See Winnett v. Roberts, supra, 179 Cal.App.3d 909, 922; Biusno v. Sax, supra, 175 Cal.App.2d 714, 724; Kleckner v. Bank of America (1950) 97 Cal.App.2d 30, 33; 217 P.2d 28.] Accordingly, any foreclosure sale that has been conducted is void and conveys no title. r Lichtv v. Whitney, supra, 80 Cal.App.2d 696, 702.]

There are, however, several notable exceptions to the rule

requiring tender. Tender is not required if the trustor seeks to rescind the obligation and trust deed on the ground of fraud because payment would be an affirmance of the debt. [See Stockton v. Newman, supra, 148 Cal.App.2d 558, 564.] No tender is required when nothing is owed such as, for example, when the trustor’s obligation is offset by the beneficiary’s obligation to the trustor. [See Hauqer v. Gates, supra, 42 Cal.2d 752, 753; see also In re Worchester. supra, 811 F.2d 1224, 1230 n.6.] Moreover, tender is not required when the amount owed is in dispute and the foreclosure should be stayed to permit an accounting or adjudication of the amount of the debt. [See More v. Calkins, supra, 85 Cal. 177, 188-90; see also Stockton v. Newman, supra, 148 Cal.App.2d 558.] The Supreme Court has also recognized that a tender is not necessary when the trustor is willing to make a tender but is frustrated in doing so by the beneficiary’s bad faith conduct. [See McCue v. Bradbury (1906) 149 Cal. 108; 84 P. 993.]

5. Bank Deposit

A tender does not discharge the ultimate obligation to make the payment tendered. Tender is an offer of performance, not performance itself. [See e.g., Walker v. Houston (1932) 215 Cal.742, 745; 12 P. 2d 952.] However, a tender of full payment accompanied by a deposit of that amount in the name of the creditor with a bank or savings and loan association and notice to the creditor extinguishes the payment obligation. [Id* at 746; Civ. Code § 1500.] The deposit must be unconditional. [See e.g., Gaff rev v. Downey Sav. & Loan Assn., supra, 200 Cal.App.3d 1154, 1167.]

A bank deposit does not have to be made when tender is required to prevent a foreclosure or vacate a sale. For example, the tender of the amount owed to reinstate an obligation is sufficient to cure the default and reinstate the obligation; a bank deposit is not necessary, rMagnus v. Morrison (1949) 93 Cal.App.2d 1, 3; 208 P.2d 407.]

Bond or Undertaking

If an injunction is granted, the law requires that an undertaking be given. [Code of Civ. Proc. § 529(a)(c).] This statutory requirement does not specifically apply to temporary restraining orders. The Supreme Court advises that the “better practice” is for the trial court to require a bond for a temporary restraining order, but such an order is not void if a bond is not required. Biasca v. Superior Court (1924) 194 Cal. 366; 228 P. 861; see River Farms Co. v. Superior Court (1933) 131 Cal.App. 365,

370; 21 P.2d 643.] A bond, however, is required for a preliminary injunction. [Code of Civ. Proc. § 529; Neumann v. Moretti (1905) 146 Cal. 31, 32-33; 79 P. 512.]

Significantly, the court can waive the bond requirement for poor litigants. The party seeking a preliminary injunction without bond need not proceed in forma pauperis; however, the court will use in forma pauperis standards in determining whether to grant the injunction without bond. Conover v. Hall (1974) 11 Cal.3d 842, 850-52; 114 Cal.Rptr. 642.]

If a bond is required, the lawyer representing the homeowner should assure that the bond is not too large, especially because the homeowner likely will be unable to afford any bond, let alone a large one. The purpose of the bond is to protect the defendant against damages in the event the court determines that the injunction should not have been issued. [Code of Civ. Proc. § 529.] The deed of trust, however, covers the trustor’s continuing default and accruing unpaid interest. Therefore, the deed of trust should be ample security for the beneficiary if there is sufficient equity in the property to cover additional interest and other expenses emanating from the delay. As a result, any bond should be nominal unless the equity in the property is insufficient; in that event, the bond should only be large enough to cover anticipated damage not covered by the security. Moreover, a bond

which is significantly larger than necessary to protect against damages may improperly restrict the trustor’s access to the courts and thus may infringe on the trustor’s due process rights. [See Lindsev v. Normet (1972) 405 U.S. 56, 74-79; 92 S.Ct. 862.]

7. Appeals

An appeal is allowed from an order of the trial court granting or denying a temporary restraining order, preliminary injunction, or final injunction. [Code of Civ. Proc. §§ 904.1(a), 904.1(f); U.S. Hertz, Inc. v. Niobrara Farms, supra, 41 Cal.App.3d 68, 72.] The trial court may restrain the foreclosure pending appeal even though the court may have denied a final injunction. [See City of Pasadena v. Superior Court (1910) 157 Cal. 781, 787-88; 109 P. 620.] In City of Pasadena, the Supreme Court observed that:

Common fairness and a sense of justice readily suggests that while plaintiffs were in good faith prosecuting their appeals, they should be in some manner protected in having the subject-matter of the litigation preserved intact until the appellate court could settle the controversy . . . in order that, if it be ultimately decided that the judgment appealed from was erroneous, his property may be saved to him. (.Id. at 795-96.)

The appellate courts likewise can issue a stay order or writ of supersedeas which is injunctive in nature to preserve the status quo pending appeal. [Code of Civ. Proc. § 923; see generally, Agricultural Labor Relations Board v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 708; 238 Cal.Rptr. 780; People ex rel. San Francisco Bay Conserv. & Dev. Comm. v. Emeryville (1968) 69 Cal.2d 533; 72 Cal.Rptr. 790.]

8. Notice of Rescission and Lis Pendens

If the sale is not enjoined, the trustor is in serious jeopardy of losing the right to regain the property in the event it is sold to a bona fide purchaser or the purchaser uses the property for security for a loan from a bona fide encumbrancer. Although the bona fides doctrine will not vitiate those claims predicated on voidness which the trustor is not barred from asserting after a foreclosure sale, the doctrine will hamper, if not preclude, the ability of the trustor to vacate the sale based on claims that render the obligation, the trust deed, or the sale voidable., “The Status of Bona Fide Purchaser or Encumbrancer”. ] Therefore, a lawyer representing a homeowner in foreclosure should immediately take steps to avert the application of the bona fides doctrine by giving constructive notice of the homeowner’s claims.

Notice of Rescission

Every acknowledged conveyance of real property which is recorded with the County Recorder provides constructive notice to subsequent purchasers and encumbrancers. [Civ. Code § 1213.] A conveyance is defined to include any instrument which affects the title to real property [Civ. Code § 1215], and any instrument affecting title to real property may be recorded. [Gov. Code § 27280.] The effect of the recordation is to make every conveyance, except a lease not exceeding one year, void as to all subsequent purchasers and encumbrancers in good faith and for a valuable consideration who record their conveyance prior to the recordation of the earlier conveyance. [Civ. Code § 1214.]

In Dreifus v. Marx (1940) 40 Cal.App.2d 461, 466; 104 P.2d 1080, the Court of Appeal held that a recorded notice or rescission of a deed, which had been served on the defendants and which states grounds for rescission based on fraud, undue influence, and lack of consideration, affected title to real property and imparted constructive notice of the rightful owner’s claims and assertions of title. [See Civ. Code § 1215 defining conveyance to include a document affecting title.] As the court held,

Its effect was to declare to the world that the author of the notice had by delivery of a deed been defrauded by the

party upon whom the notice had been served, or had failed to receive consideration for the deed, which fact was notice of the invalidity of such prior deed. By the presence of said notice upon the official records of the county, appellant [a subsequent encumbrancer] had constructive notice of the contents of the instrument which was her initial step in her rescissory proceedings to nullify the alleged fraudulent transaction. (.Id. at 466.)

Since the notice of rescission becomes effective upon its service on the persons against whom rescission is sought, the notice must be served in addition to being recorded to impart constructive notice. [See Brown v. Johnson (1979) 98 Cal.App.3d 844, 850; 159 Cal.Rptr. 675.] Although not specifically required by the cases, the recordation of a declaration of service along with the notice of rescission appears to be advisable.

The recognition of a recorded and served notice of rescission as a document imparting constructive notice should not be interpreted to mean that any recorded document purporting to affect title will create constructive notice: “It is settled that an instrument which is recorded but which is not authorized to be recorded and given constructive notice effect by statute does not impart constructive notice to subsequent purchasers.” Brown v.

Johnson, supra, 98 Cal.App.3d 844, 849; see e.g., Owens v. Palos Verdes Monaco (1983) 142 Cal.App.3d 855, 868; 191 Cal.Rptr. 381 (partnership statement); Lawyers Title Co. v. Bradbury (1981) 127 Cal.App.3d 41, 45; 179 Cal.Rptr. 363 (court order for child and spousal support); Brown v. Johnson, supra, 98 Cal.App.3d 844; (notice of vendor’s lien); Stearns v. Title Ins. & Trust Co. (1971) 18 Cal.App.3d 162, 169; 95 Cal.Rptr. 682 (surveys); Black v. Solano Co. (1931) 114 Cal.App. 170, 173-74; 299 P. 843 (royalty agreement); Hale v. Penderarast (1919) 42 Cal.App. 104, 107-08; 183 P. 833 (notice of property repurchase agreement); Rowley v. Davis (1917) 34 Cal.App. 184, 190-91; 167 P. 162 (notice that absolute deed intended as mortgage).] Therefore, any document contesting the transaction should be recorded in the form of a notice of rescission.

b. Lis Pendens

As soon as a complaint is filed, a lis pendens should be recorded. The recordation of this lis pendens gives constructive notice to prospective purchasers and lenders of the claims asserted in the action. [Code of Civ. Proc. § 409(a); see e.g., Putnam Sand & Gravel Co., Inc. v. Albers (1971) 14 Cal.App.3d 722, 725; 92 Cal.Rptr. 636.] Therefore, even if the temporary restraining order or the preliminary injunction is denied, subsequent purchasers and encumbrancers will take their interest subject to the plaintiff’s

claims and will not have a bona fide status.

A lis pendens is simply a notice that there is pending litigation “concerning real property or affecting the title or the right of possession of real property.” [Code of Civ. Proc. § 409(a).] The notice must include the names of the parties, the object of the action, and a description of the property. (Id.) Prior to recording, the notice must be served by registered or certified mail, return receipt requested to all known addresses of the adverse parties and all owners of record as shown in the latest assessment information in the possession of the county assessor’s office. [Code of Civ. Proc. § 409(c).] A copy of the lis pendens must also be filed with the court in which the action is filed. fid.) A proof of service must be recorded with the lis pendens or, in lieu thereof, a declaration under penalty of perjury stating that the address of the adverse party is unknown. [Code of Civ. Proc. § 409(d).] If the service and proof of service requirements are not satisfied, the lis pendens is void. (Id.)

D. Attack on the Sale’s Validity

1. Vacating the Foreclosure Sale and Obtaining Damages

The traditional method of challenging a foreclosure sale is through a suit inequity, Anderson v. Heart Fed. Sav. & Loan Assn.

(1989) 1989 Cal.App. LEXIS 141.]

The trustor can seek to set aside any improper foreclosure sale:

It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly, unfairly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties. Sham bidding and the restriction of competition are condemned, and inadequacy of price when coupled with other circumstances of fraud may also constitute ground for setting aside the sale. Bank of America v. Reidy, supra. 15 Cal.2d 243, 248.

[See e.g., Stirton v. Pastor, supra, 177 Cal.App.2d 232, 234; Brown v. Busch. supra, 152 Cal.App.2d 200, 203-04; Pv v. Pleitner, supra, 70 Cal.App.2d 576, 579.] In a more modern formulation of the rule, the Court of Appeal has stated that —

“The courts scrutinize a sale held under power in a trust deed carefully, and will not sustain it unless it is conducted with fairness, openness, scrupulous integrity, and the trustee exercises sound discretion to protect the rights of all

interested parties and obtain the best possible price.” Bank of Seoul & Trust Co. v. Marcione, supra, 198 Cal.App.3d 113, 119.

The plaintiff bears the burden of proof and, if the action is based on irregularities in the sale process, must show injury from the claimed irregularities. [See e.g., Stevens v. Plumas Eureka Annex Min. Co., supra. 2 Cal.2d 493, 497; Sargent v. Shumaker, supra, 193 Cal. 122; Anderson v. Heart Fed. Sav. & Loan Assn., supra, 1989 Cal.App. LEXIS 141.] The injured trustor does not have to attempt to enjoin the sale before bringing an action to vacate the sale. [See Hauaer v. Gates, supra, 42 Cal.2d 752, 756.] The trustor is not estopped from raising claims concerning the sale’s validity which could have been raised before the sale. (Id. ) However, the trustor’s action may be barred by laches. [See Smith v. Sheffev (1952) 113 Cal.App.2d 741, 744; 248 P.2d 959.]

The trustor may seek damages instead of, or as an alternative to, setting aside the sale. [See Munaer v. Moore, supra, 11 Cal.App.3d 1, 7; Standlev v. Knapp, supra, 113 Cal.App. 91, 100-02; see also Stockton v. Newman, supra, 148 Cal.App.2d 558, 563-64. ] The decision to seek damages and/or the rescission of the trustee’s sale may be influenced by whether a jury trial is desired. An action to vacate a trustee’s sale is equitable in nature and, hence, the trustor would not be entitled to a jury

trial. An action for damages, however, is an action at law in which the right to jury trial ordinarily exists. If the legal and equitable issues are joined, the trial court has the discretion to try the equitable issues first, and if the trial court’s determination of these issues is dispositive, nothing remains to be considered by the jury. [See Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671; 111 Cal.Rptr. 693.]

2. Grounds for Attacking the Sale

The grounds for attacking the sale are discussed above.

3. Tender

Since the action to set aside the sale is equitable in nature, the trustor seeking equity is compelled to do equity by tendering the amount of the obligation owed. [See e.g., Shimpones v. Sticknev (1934) 219 Cal. 637, 649; 28 P.2d 673; Napue v. Gor-Mev West, Inc. . supra, 175 Cal.App.3d 608, 621; Karlsen v. American Sav. & Loan Assn.. supra, 15 Cal.App.3d 112, 117; Crummer v. Whitehead, supra, 230 Cal.App.2d 264, 268; Foae v. Schmidt (1951) 101 Cal.App.2d 681, 683. Pv v. Pleitner, supra, 70 Cal.App.2d 576, 582.]

For a discussion of tender and the circumstances which excuse tender, A junior lienor seeking to set aside the sale of a senior lienor because of irregularities that impaired the junior lienor’s opportunity to reinstate or redeem must tender the full amount owing on the senior obligation. [See FPCI RE-HAB 01 v. E&G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1021-22; 255 Cal.Rptr. 157; Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575; 205 Cal.Rptr. 15 (junior lienor had no notice of sale but its right of reinstatement had elapsed); but see United States Cold Storage v. Great Western Sav. & Loan Assn. (1985) 165 Cal.App.3d 1214, 1223-25; 212 Cal.Rptr. 232.] If the ground for vacating the sale does not involve an irregularity precluding the exercise of the right of reinstatement or redemption, tender is not necessary. [See FPCI RE-HAB 01 v. E&G Investments, Ltd., supra, 207 Cal.App.3d 1018, 1022.]

4. Conclusiveness of Deed Recitals

Trustee’s deeds routinely contain a series of recitals concerning the propriety of the foreclosure. The recitals usually cover every aspect of the foreclosure and purport to be conclusive evidence that the recited facts occurred. The authority of the trustee to make these recitals which ostensibly bind the trustor

is derived from the trust deed. [See Little v. CFS Service Corp., supra, 188 Cal.App.3d 1354, 1358.] The recitals include such facts as the following: a default occurred and still existed at the time of sale, a properly completed notice of default was properly mailed to all parties, not less than three months elapsed between the recordation of the notice of default and the posting and the first publication of the notice of sale, all posting and mailing requirements specified in the trust deed and by statute for the notice of sale were met, the beneficiary properly demanded that the trustee sell the property, and the trustee properly sold the property in full accordance with the terms of the trust deed and all laws. Obviously, this formidable array of recitals, if conclusively binding on the trustor, would be an insuperable obstacle to setting aside the sale. The courts and the Legislature have traditionally recognized the validity of some of these recitals, but the courts have fashioned important exceptions which must be considered by counsel representing a homeowner trying to vacate a trustee’s sale.

As a general proposition, California courts have historically sustained the validity of trustee’s deed recitals regarding the regularity of sale procedures, such as properly publishing and posting notices, as conclusive evidence of the facts recited. [See e.g., Pacific States Sav. & Loan Co. v. O’Neill, supra, 7 Cal.2d 596, 599; 61 P.2d 1160; Cobb v. California Bank, supra, 6 Cal.2d

389, 390; Central Nat. Bank v. Bell, supra, S Cal.2d 324, 327; Sorensen v. Hall (1934) 219 Cal. 680, 682; 28 P.2d 667; Simson v. Eckstein (1863) 22 Cal. 580, 592; 54 P.2d 1107.] The theory underlying this rule is that the trustee, as the trustor’s agent, has been empowered by the trustor in the terms of the deed of trust to bind the trustor in making conclusive admissions regarding the regularity of the sale process. [See Mersfelder v. Spring (1903) 139 Cal. 593, 595; 73 P. 452; Little v. CFS Service Corp., supra, 188 Cal.App.3d 1354, 1358; Pierson v. Fischer, supra, 131 Cal.App.2d 208, 216-17; 280 P.2d 491.] However, the trustee is not obliged to issue a trustee’s deed containing conclusive presumptions regarding the regularity of sales procedures if the procedures were defective. [See Little v. CFS Service Corp., supra, 188 Cal.App.3d 1354, 1360.]

The Legislature has provided that recitals dealing with compliance with all legal requirements for mailing copies of notices, publishing or personally delivering a copy of the notice of default and posting and publishing the notice of sale are prima facie evidence of compliance and conclusive evidence in favor of a bona fide purchaser. [Civ. Code § 2924; see Garfinkle v. Superior Court, supra, 21 Cal.3d 268, 279 n.16; (Supreme Court withholds opinion on validity and effect of Civ.Code §2924 presumptions); a discussion of what is a “bona fide purchaser” is contained in, “The Status of a Bona Fide Purchaser or Encumbrancer” . ] Thus, recitals regarding the mailing, posting, and publishing of notices are conclusive only as to a bona fide purchaser but are rebuttable as to everyone else. [See Napue v. Gor-Mev West. Inc., supra, 175 Cal.App.3d 608, 620-21; Wolfe v. Lipsev, supra, 163 Cal.App.3d 633, 639-40.] The obvious purpose of the presumption is to protect a bona fide purchaser at a trustee’s sale from certain claims of procedural defects. [See Napue v. Gor-Mev West, Inc.. supra, 175 Cal.App.3d 608, 615.]

The statute does not deal with the effect of purported conclusive recitals regarding matters other than the mailing, posting, and publishing of notices. [See Wolfe v. Lipsev, supra, 163 Cal.App.3d 633, 640 (application of presumptions in Civ.Code §2924 to notices of postponement is “questionable”). The courts, however, recognized that the recitals did not prevent an examination into any fraud or unfairness in the sale process about which the purchaser has notice. Thus, for example, the Supreme Court declared that conclusive recitals “would not, perhaps, preclude the inquiry in an equitable proceeding into the fairness of the sale, or with other matters which on equitable principles might entitle the party injured to relief . . . .” Mersfelder v. Spring, supra, 139 Cal. 593, 595; see e.g., Taliaferro v. Crola (1957) 152 Cal.App’.2d 448, 449-50; 313 P.2d 136; Karrell v. First Thrift of Los Angeles (1951) 104 Cal.App.2d 536, 539; 232 P.2d 1; Seccombe v. Roe (1913) 22 Cal.App. 139, 143; 133 P. 507.]

The courts have also declared that no recitals are conclusive between the beneficiary and the trustor. As the Court of Appeal held,

We are of the opinion that this stipulation as to conclusiveness, reading the whole deed and various requirements together, was only intended and only had the effect to protect an innocent purchaser or a third party to the transaction who acquired at such sale the legal title, but that as between the trustor and the beneficiary, when such beneficiary takes the legal title under a sale made in violation of terms of the trust, the trustor is not estopped to deny the regularity of the sale and to obtain equitable relief through a redemption thereof …. Seccombe v. Roe, supra, 22 Cal.App. 139, 143-44.

[See Beck v. Reinholtz (1956) 138 Cal.App.2d 719, 723; Security-First National Bank v. Crver (1940) 39 Cal.App.2d 757, 762; 104 P.2d 66; see also Tomczak v. Ortega, supra, 240 Cal.App.2d 902, 907; see generally 20th Century Plumbing Co. v. Sfreaola (1981) 126 Cal.App.3d 851, 854; 179 Cal.Rptr. 144 (judgment creditor buying at sale is not a bona fide purchaser).]

Moreover, the trustor may not waive any- rights under Civil Code §§ 2924, 2924b, and 2924c. [Civ. Code § 2953.] Therefore, any provision in the trust deed by which the trustor purportedly authorized the trustee to admit conclusively that the protections afforded by these sections have been extended, when they have not been extended, should be construed as an invalid waiver. [See Tomczak v. Ortega, supra, 240 Cal.App.2d 902, 907; but see Pierson v. Fischer, supra, 131 Cal.App.2d 208, 216-17, which is completely contrary to the public policy expressed in Civ. Code §§ 2924 and 2953; but see also Leonard v. Bank of America, supra, 16 Cal.App.2d 341, 345-46, the analysis of which should be superseded by Civ. Code § 2953 and Tomczak.)

The continued viability of these conclusive presumptions is open to challenge. The California Supreme Court declined to express any opinion on the validity and effect of the conclusive recital provisions of Civil Code § 2924. [See Garfinkle v. Superior Court, supra, 21 Cal.3d 268, 279 n. 16.]

The constitutionality of the conclusiveness of the recitals is also questionable. That issue has heretofore been avoided by California courts. [See Lancaster Security Inv. Corp. v. Kessler, supra, 159 Cal.App.2d 649, 655.] The effect of the conclusive presumption is dramatic: a trustor is irretrievably precluded by the trustee’s recitals from introducing evidence at trial that the

trustee illegally sold the trustor’s property. For example, in attempting to recover possession of the property through unlawful detainer proceedings after sale, a purchaser must prove that the property was “duly sold” and that the purchaser’s title has been “duly perfected.” [See Code of Civ. Proc. § 1161a; see discussion, “Attacking the Sale or Defending Possession in Unlawful Detainer Proceedings.”] Nevertheless, a bona fide purchaser can rely solely on the recitals to prove the case, and the trustor is barred from introducing contrary evidence to prevent being ousted from possession. [See e.g., Cruce v. Stein (1956) 146 Cal.App.2d 688, 693; 304 P.2d 118; Abrahamer v. Parks (1956) 141 Cal.App.2d 82, 84; 296 P.2d 343.]

Although a general discussion of the possible due process and equal protection infirmities to this statutory scheme is beyond the scope of this handbook, a lawyer representing a homeowner in foreclosure should consider several decisions of the United States Supreme Court which declared certain conclusive presumptions unconstitutional. rCleveland Bd. of Education v. LaFleur (1974) 414 U.S. 632; United States Dept. of Agriculture v. Murrv (1973) 413 U.S. 508; Vlandis v. Kline (1973) 412 U.S. 441; Stanley v. Illinois (1972) 405 U.S. 645. ] The gravamen of these cases is that due process forbids the use of irrebuttable presumptions to establish the truth of facts which are neither universally nor necessarily true when the state has reasonable alternative means

to determine the existence of the facts. [See e.g., landis v. Kline (1973) 412 U.S. 441, 452.] Although the Legislature is not prevented from establishing objective, rational criteria for determining the existence or nonexistence of facts, the Legislature cannot make the existence of a fact an issue and then make inadmissible patently relevant evidence tending to prove or disprove the fact. [See Weinberger v. Salfi (1975) 422 U.S. 749, 772.] Even as limited by Salfi, Vlandis and the other similar cases appear to prohibit the state’s predicating the validity of a foreclosure sale and unlawful detainer proceeding on the regularity of the foreclosure sale process and then prohibiting the introduction of admissible evidence to disprove the regularity of the process. [See generally, Western & A.R.R. v. Henderson (1929) 279 U.S. 639 (invalidating arbitrary rebuttable presumption).]

Whether or not the conclusiveness of the presumptions is constitutional, a lawyer representing a homeowner in foreclosure should attempt to prevent the operation of the conclusive presumptions by preventing the execution and delivery of the trustee’s deed. The bona fide purchaser obtains the benefit of the conclusive presumptions from the deed recitals; if the purchaser does not receive a deed, the purchaser will have no conclusive presumptions on which to rely. Little v. CFS Service Corp., supra, 188 Cal.App.3d 1354, 1360-61.] Therefore, if property has been sold through foreclosure but the trustee’s deed has not been

executed and delivered, the lawyer representing the trustor should attempt to enjoin the execution and delivery of the deed on the grounds of whatever irregularity may have existed in the sale and on the ground that the trustor will suffer irreparable injury as a result of the creation of the conclusive presumptions. (See generally, 3 Witkin, Summary of California Law, § 108, at 1577.)

E. Attacking the Sale or Defending Possession in Unlawful Detainer Proceedings

Generally, the purchaser at a trustee’s sale may institute an unlawful detainer action to obtain possession if the “property has been duly sold in accordance with Section 2924 of the Civil Code” and if “title under the sale has been duly perfected.” [Code of Civ. Proc. § 1161a(b) (3). ] A transferee of the purchaser also has standing to use the unlawful detainer process. [See Evans v. Superior Court (1977) 67 Cal.App.3d 162, 169-70; 136 Cal.Rptr. 596.] The action may be brought after the failure to vacate following the service of a three-day notice to quit. [Code of Civ. Proc. § 116la(b).] However, unlawful detainer proceedings may be used against a tenant or subtenant only after the service of notice to quit at least as long as the periodic tenancy but not exceeding 30 days. [Code Civ. Pro. § 1161a(c).] The remedy is cumulative to common law actions such as ejectment which may be brought to obtain possession. [See Duckett v. Adolph Wexler Bldg. & Fin.

Corp. (1935) 2 Cal.2d 263, 265-66; 40 P.2d 506; Mutual Bldo. & Loan Assn. v. Corum (1934) 3 Cal.App.2d 56, 58; 38 P.2d 793.] With very rare exceptions, the purchaser will invoke summary unlawful detainer proceedings rather than other proceedings to gain possession.

However, the purchaser is precluded from invoking unlawful detainer if a local ordinance, such as a rent control law, does not permit eviction after foreclosure. [See Gross v. Superior Court (1985) 171 Cal.App.3d 265; 217 Cal.Rptr. 284.] The purchaser may also be bound to rent ceilings. [See People v. Little (1983) 141 Cal.App.3d Supp. 14; 192 Cal.Rptr. 619.]

The courts have charted inconsistent paths in determining what defenses may be raised in unlawful detainer proceedings and to what extent the trustor may be able to attack the purchaser’s title. In the early cases, the courts concluded that the purchaser had the burden of proving that the purchaser acquired the property in the manner expressed in the unlawful detainer statute; i.e., the property was duly sold and the purchaser duly perfected title. No other questions of title could be litigated. [See e.g., Nineteenth Realty Co. v. Diacrs (1933) 134 Cal.App. 278, 288-89; 25 P.2d 522; Hewitt v. Justice’s Court (1933) 131 Cal.App. 439, 443; 21 P.2d 641.]

This rule was adopted by the Supreme Court in Cheney v. Trauzettel (1937) 9 Cal.2d 158; 69 P.2d 832. The Supreme Court held that:

… in the summary proceeding in unlawful detainer the right to possession alone was involved, and the broad question of title could not be raised and litigated by cross-complaint or affirmative defense. [Citations omitted.] It is true that where the purchaser at a trustee’s sale proceeds under section 1161a of the Code of Civil Procedure he must prove his acquisition of title by purchase at the sale; but it is only to this limited extent, as provided by statute, that the title may be litigated in such a proceeding. [Citations omitted.] . . . the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title. Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff’s title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment. (Id. at 159-60.)

Accordingly, in numerous cases trustors have been forbidden from defending against the unlawful detainer on grounds other than

showing that the sale was not conducted pursuant to Civil Code § 2924. [See e.g., California Livestock Production Credit Assn. v. Sutfin, supra, 165 Cal.App.3d 136, 140 n.2; Evans v. Superior Court, supra, 67 Cal.App.3d 162, 170-71; MCA. Inc. v. Universal Diversified Enterprises Corp. (1972) 27 Cal.App.3d 170, 176-77; 103 Cal.Rptr. 522; Cruce v. Stein, supra, 146 Cal.App.2d 688, 692; Abrahamer v. Parks, supra, 141 Cal.App.2d 82, 84; Hiaoins v. Covne (1946) 75 Cal.App.2d 69, 72-73, 75; 170 P.2d 25; Delov v. Ono (1937) 22 Cal.App.2d 301, 303; 70 P.2d 960.]

Other courts, on the other hand, have considered defenses extrinsic to compliance with statutory foreclosure procedure in determining unlawful detainer matters. In Seidell v. Anglo-California Trust Co. (1942) 55 Cal.App.2d 913, 921; 132 P.2d 12, the Court of Appeal construed Cheney to prohibit only equitable but not legal defenses. Therefore, the Court thought that lack of consideration and other issues going to the validity of the note and the trust deed were proper defenses. (Id. at 922.) Other cases have permitted the unlawful detainer defenses whether or not the grounds were technically legal or equitable. [See e.g., Kartheiser v. Superior Court (1959) 174 Cal.App.2d 617, 621; 345 P.2d 135 (beneficiary’s waiver of default); Freeze v. Salot, supra, 122 Cal.App.2d 561; (no default); Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837; 327 P.2d 241 (rescission, lack of delivery); Altman v. McCollum. supra, 107 Cal.App.2d Supp. 847; (estoppel to

assert default).]

The issue of what defenses can or should be raised also significantly affects the application of the res judicata doctrine to any action by the trustor after the unlawful detainer to challenge the trustee’s sale. Cases, proceeding from Seidell, which hold that potential defenses are far ranging, have also held that issues which were, or might have been, determined in the unlawful detainer proceeding are barred by res judicata in subsequent proceedings. [See Freeze v. Salot. supra, 122 Cal.App.2d 561, 565-66; Bliss v. Security-First Nat. Bank (1947) 81 Cal.App.2d 50, 58; Seidell v. Analo-California Trust Co., supra, 55 Cal.App.2d 913.]

The Court of Appeal, however, ruled differently in Gonzales v. Gem Properties, Inc., supra, 37 Cal.App.3d 1029, 1036. The court recognized the extreme difficulty of conducting complicated defenses in the context of a summary proceeding; investigation and discovery procedures are limited, and the proceeding is too swift to afford sufficient time for preparation. Therefore, the court denied a res judicata effect to issues such as fraud.

The resolution of the problems raised by these cases appears in Vella v. Hudoins (1977) 20 Cal.3d 251; 142 Cal.Rptr. 414 and Asuncion v. Superior Court (1980) 108 Cal.App.3d 141; 166 Cal.Rptr.

306. In Vella, the Supreme Court held generally that only claims “bearing directly upon the right of immediate possession are permitted; consequently, a judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to resolve questions of title [citations omitted], or to adjudicate other legal and equitable claims between the parties [citations omitted].” (20 Cal.3d at 255.) The purchaser, however, must show that the sale was regularly conducted and that the purchaser’s title was duly perfected. (Id.)

The court reaffirmed the holding in Cheney that claims dealing with the validity of the trust deed or the obligation or with other basic defects in the purchaser’s title should not be litigated in unlawful detainer proceedings, and that determination made regarding such claims should not be given res judicata effect. (Id. at 257.) Defenses which need not be raised may nonetheless be considered if there is no objection. [See Stephens, Partain & Cunningham v. Hollis, supra, 196 Cal.App.3d 948, 953.] Res judicata will apply only to defenses, including those ordinarily not cognizable but raised without objection, if there is a fair opportunity to litigate, vella v. Hudgins, supra, 20 Cal.3d 251, 256-57.] Since complex claims, such as for fraud, can very rarely be fairly litigated in summary unlawful detainer proceedings, the trustor is not required to raise those issues as a defense. Although not required and ordinarily not allowed to litigate critical issues involving the obligation, the trust deed, and title, the homeowner-trustor is practically impelled to litigate these issues or be dispossessed since an unlawful detainer hearing will certainly precede a trial on a quiet title action. [See Code of Civ. Proc. § 1179a; Kartheiser v. Superior Court, supra, 174 Cal.App.2d 617, 621-23.] The California Supreme Court, citing Justice Douglas, aptly observed:

. . . the home, even though it be in the slums, is where man’s roots are. To put him into the street . . . deprives the tenant of a fundamental right without any real opportunity to defend. Then he loses the essence of the controversy, being given only empty promises that somehow, somewhere, someone may allow him to litigate the basic question in the case. S. P. Growers Assn. v. Rodriguez (1976) 17 Cal.3d 719, 730; 131 Cal.Rptr. 761.

Accordingly, the Court of Appeal held in Asuncion, supra, that “homeowners cannot be evicted, consistent with due process guaranties, without being permitted to raise the affirmative defenses which if proved would maintain their possession and ownership.” (108 Cal.App.3d at 146.) Nonetheless, the Court was

mindful that an unlawful detainer action was “not a suitable vehicle to try complicated ownership issues. …” [Id. at 144; see Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049; 189 Cal.Rptr. 138; Gonzales v. Gem Properties, Inc., supra, 37 Cal.App.3d 1029, 1036.] The Court thus prescribed the following procedure when the trustor had on file a superior court action contesting title: (a) the municipal court should transfer the unlawful detainer proceeding to the superior court because that action ultimately involves the issue of title which is beyond the municipal court’s jurisdiction; and (b) the superior court should stay the eviction action, subject to a bond if appropriate, until trial of the action dealing with title, or (c) the superior court should consolidate the actions. (Id. at 146-47.)

If the challenge to title is based on fraud in the acquisition of title, improper sales methods, or other improprieties that directly impeach the unlawful detainer plaintiff’s title or the procedures followed in the foreclosure sale, Asuncion and Mehr dictate that the unlawful detainer should be stayed. On the other hand, if the challenge to title is based on a claim unrelated to the specific property in question, such as a fraud not directly related to the obtaining of title to the property that is the subject of the unlawful detainer, the rule in Asuncion does not apply. [See Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 464-67.]

Asuncion should also be distinguished from Mobil Oil Corp. v. Superior Court (1978) 79 Cal.App.3d 486; 145 Cal.Rptr. 17, which is frequently cited in opposition to the procedure authorized in Asuncion♦ In Mobil, the court ruled that statutory procedure accorded unlawful detainer proceedings precluded staying the unlawful detainer action until the tenant gas station operator could try his action alleging unfair practices in the termination of his franchise. (Id. at 494.) The Asuncion court noted some procedural distinctions: the commercial lessee did not seek a preliminary injunction and obtained a stay on apparently inadequate factual grounds, while the Asuncions had not yet had the opportunity to present facts on which a preliminary injunction might issue. (See 108 Cal.App.3d at 146 n. 1.)

In addition, the differences between the interests presented in commercial and residential transactions suggest that different considerations may apply to each. The courts have recognized a distinction between commercial and residential cases and have been more willing to allow affirmative defenses in residential cases. [See S. P. Growers Assn., supra, 17 Cal.3d 719, 730; 131 Cal.Rptr. 761; Custom Parking, Inc. v. Superior Court (1982) 138 Cal.App.3d 90, 96-100; 187 Cal.Rptr. 674; Schulman v. Vera (1980) 108 Cal.App.3d 552, 560-63; 166 Cal.Rptr. 620; Asuncion v. Superior Court, supra, 108 Cal.App.3d 141, 145, 146 n. 1; Mobil Oil Corp.

v, Handlev (1976) 76 Cal.App.3d 956, 966;- 143 Cal.Rptr. 321; see generally, Union Oil Co. v. Chandler (1970) 4 Cal.App.3d 716, 725; 84 Cal.Rptr. 756.]

The commercial lessee may be able to establish its rights in an action apart from the unlawful detainer. The trustor, however, will lose possession of the trustor’s home. While the lessee’s loss is likely compensable in money, the loss of the home and the attendant adverse impact on the psychological well being of the residents and the family structure will not as easily be amenable to compensation. Moreover, the family cast out onto the streets may be unable to maintain an action which may come to trial years later. [See S. P. Growers Assn. v. Rodriguez, supra, 17 Cal.3d 719, 730.] In addition, the affirmative defenses alleged in the recent commercial lease cases have presented substantial and complex issues [see e.g., Mobil Oil Corp. v. Superior Court, supra, 79 Cal.App.3d 486, 495 (unfair business practice charge involving all Mobil service station operators); Onion Oil Co. v. Chandler, supra, 4 Cal.App.3d 716, 725-26 (antitrust violations)] and would likely consume more trial time than most trustee’ s sale cases.

Moreover, the court’s decision on whether to recognize various affirmative defenses in unlawful detainer proceedings results from a balancing of the public policies furthered by protecting the tenant or property owner from eviction against the state’s interest

in the expediency of a summary proceeding. [See e.g., Barela v. Superior Court (1981) 30 Cal.3d 244, 250; 178 Cal.Rptr. 618; S. P. Growers Assn. v. Rodriguez, supra, 17 Cal.3d 719, 729-30; Custom Parking, Inc. v. Superior Court, supra, 138 Cal.App.3d 90.] There is a strong public policy supporting homeownership and the conservation of neighborhoods from destabilizing influences. [See “Propriety of Injunctive Relief”.] These interests when coupled with the due process concerns mentioned in Asuncion militate for the hearing of affirmative defenses in accord with the procedure set forth in Asuncion.

As an alternative to an Asuncion motion prior to the hearing of the unlawful detainer action, the homeowner’s counsel could file a superior court action to challenge title and to restrain the purchasers from initiating or prosecuting an unlawful detainer. If the homeowner has lost the unlawful detainer, the injunction could be aimed at restraining the purchasers from enforcing the writ of possession or from taking possession of the premises.

Counsel should not direct the injunction against the municipal court or the sheriff or marshall since the superior court has no jurisdiction to enjoin a judicial proceeding or a public officer’s discharge of regular duties. [See e.g., Code of Civ. Proc. § 526.]

The courts have not ruled on whether traditional landlord-tenant defenses could ever be invoked in unlawful detainer

proceedings between the purchaser at the foreclosure sale and the person in possession. However, these defenses do not apply if the person in possession has no independent right to possession after the foreclosure. [See California Livestock Production Credit Assn. v. Sutfin. supra, 165 Cal.App.3d 136, 143.] In Sutfin, for example, the court held that a trustor could not invoke a retaliatory eviction defense because the trustor had no lease agreement giving the trustor a right to possession and the trustor’s only claim to possession derived from his title to the property which was lost at a valid foreclosure sale. (Id.)

F. The Status of Bona Fide Purchaser or Encumbrancer

The trustor may be unable to vacate a sale made to a bona fide purchaser for value without notice of the trustor’s claim. The general rules of bona fide purchase apply to trustee’s sales: a “good faith purchaser for value and without notice of the fraud or imposition is not chargeable with the fraud or imposition of his predecessor and takes title free of any equity of the person thus defrauded or imposed upon.” strutt v. Ontario Sav. & Loan Assn. (1970) 11 Cal.App.3d 547, 554; accord, Karrell v. First Thrift of Los Angeles, supra, 104 Cal.App.2d 536, 539; see Gonzales v. Gem Properties, Inc., supra, 37 Cal.App.3d 1029, 1037; 112 Cal.Rptr. 884.]

Notice

The trustor’s best chance for attacking someone’s alleged status as a bona fide purchaser or encumbrancer will be to show that the purchaser had knowledge of the trustor’s claims and equities. The notice can be actual or constructive. (See Civ. Code § 18.)

a. Actual Notice

The bona fide purchase doctrine does not benefit a subsequent purchaser or encumbrancer who takes with actual notice of a prior, though unrecorded, claim to property. [See e.g., Civ. Code §§ 1214, 1217; Slaker v. McCormick-Saeltzer Co. (1918) 179 Cal. 387, 388; 177 P. 155.] Actual notice may be acquired in many ways including the following: (a) seeing a document relating to someone’s claim [see e.g., Beverly Hills Nat. Bank & Trust Co. v. Seres (1946) 76 Cal.App.2d 255, 264; 172 P.2d 894 (letter)]; (b) being told of someone’s interest [see e.g., Laucrhton v. McDonald (1923) 61 Cal.App. 678, 683; 215 P. 707]; (c) listening to or participating in a conversation regarding someone’s claim [see e.g., Williams v. Miranda (1958) 159 Cal.App.2d 143, 153; 323 P.2d 794]; (d) actually viewing a public record [see e.g., Warden v. Wyandotte Sav. Bank (1941) 47 Cal.App.2d 352, 355; 117 P.2d 910]; (e) actually viewing a recorded document which is not entitled to recordation and which, therefore, would not impart constructive notice [see Parkside Realty Co. v. MacDonald (1913) 166 Cal. 426, 431; 137 P. 21]; (f) viewing a preliminary title report which refers to someone’s interest [see Sain v. Silvestre, supra, 78 Cal.App.3d 461, 469-70; Rice v. Capitol Trailer Sales of Redding (1966) 244 Cal.App.2d 690, 692-94; 53 Cal.Rptr. 384].

Constructive Notice

Subsequent purchasers or encumbrancers have constructive notice of the contents of all acknowledged and recorded conveyances from the time of their recordation. [See Civ. Code § 1213.] A conveyance that is not property indexed does not impart constructive notice [see Rice v. Taylor (1934) 220 Cal. 629, 633-34; 32 P.2d 381]; however, a properly indexed conveyance imparts constructive notice even if the document were recorded in an incorrect book of record. [Gov. Code § 27327.] Not every recorded document imparts constructive notice; if the document is not deemed a conveyance, as broadly defined [see Civ. Code § 1215], its recordation will not give constructive notice. [See discussion in If the document is properly recordable as an instrument which may affect title to real property, the recorded instrument not only gives constructive notice of its own contents but also of the contents of other documents to which the recorded instrument refers. [See Caito v.United California Bank, supra, 20 Cal.3d 694, 702; American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1020; 131 Cal.Rptr. 270; see also Pacific Trust Co. TTEE v. Fidelity Fed. Sav. & Loan Assn., supra, 184 Cal.App.3d 817, 825.]

If the document is unacknowledged or defectively acknowledged, the document does not impart constructive notice until one year after its recordation. [See Civ. Code § 1207; see e.g., Frederick v. Louis (1935) 10 Cal.App.2d 649, 651; 52 P. 2d 533.] An acknowledgment cannot be properly taken unless the notary “personally knows, or has satisfactory evidence that the person making the acknowledgement is the individual who is described in and who executed the instrument.” (Civ. Code § 1185.) A broad standard has been adopted to satisfy this requirement. For example, the notary may rely on the statement of a “credible witness,” personally known to the notary, that the person making the acknowledgment is personally known to the witness [Civ. Code § 1185(c)(1)]; the notary may also rely on a driver’s license.

[Civ. Code § 1185(c)(2)(A).]

If a trust deed is forged, it is void even in the hands of a person who would otherwise be a bona fide purchaser. [See e.g., Trout v. Taylor, supra, 220 Cal. 652, 656; see discussion on forgery, Chapter V A 6, “Forgery and Fraud in The Factum”.] infra.1 Therefore, if a notary falsely certifies a forged trust deed, the notary will not be liable to the purported trustor for the amount of the trust deed since the purported trustor has no obligation to pay it. [See Preder v. Fidelity & Casualty Co. (1931) 116 Cal.App. 17; 2 P.2d 223.] However, the notary may be liable to the trustor for expenses involved in clearing title (see Preder, supra). The trustor whose genuine signature is obtained on a document through fraud may be able to recover for the fraud.

Constructive notice is also imputed from known circumstances. Civil Code § 19 provides that:

Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact.

see Olson v. Comwell (1933) 134 Cal.App. 419, 428; 25 P.2d 879.] Thus, the Court of Appeal has held that:

one who purchases at a trustee’ s sale with knowledge, express or implied, that the trustor is contesting the right to sell, is presumed to know the course of the proceedings and state of record from which the title of his grantor proceeded, and he is presumed to know, too, that the right of the defendant is to take an appeal within the statutory period, and also the consequences of the successful prosecution of this right;

notary’s false certification if the trust deed is acquired by a bona fide purchaser. [See MacBride v. Schoen (1932) 121 Cal.App. 321; 8 P.2d 888.] Generally, a notary and the notary’s sureties on the notary bond are liable for all the damages sustained by any person injured by the notary’s official misconduct. (Gov. Code § 8214.) The notary’s official misconduct must be related to notary duties. [See e.g., Heidt v. Minor (1891) 89 Cal. 115, 118-19; 26 P. 627.] The misconduct must also be the proximate cause of the injury. (See MacBride v. Schoen, supra.)and he must be supposed to purchase with reference to these things. Bisno v. Sax, supra, 175 Cal.App.2d 714, 732; 346 P.2d 814.

Other circumstances will prompt inquiry. For example, if the purchase price of property is grossly disproportionate to its value, the low price is sufficient to put a prudent person on inquiry of a defect in title. [See e.g., Jordan v. Warnke (1962) 205 Cal.App.2d 621, 629; 23 Cal.Rptr. 300; Rabbit v. Atkinson (1944) 44 Cal.App.2d 752, 757; 113 P.2d 14.]

A corollary to this principle of inquiry notice is that “possession of real property is constructive notice to any intending purchaser or encumbrancer of the property of all of the rights and claims of the person in possession which would be disclosed by the inquiry.” Asisten v. Underwood (1960) 183 Cal.App.2d 304, 309; 7 Cal.Rptr. 84.] Although most of the cases involve purchases, the rule applies as well to encumbrances as indicated by the court in Asisten. [See J. R. Garrett Co. v. States (1935) 3 Cal.2d 379; 44 P.2d 538.]

The Supreme Court early noted that “[t]he simple, independent fact of possession is sufficient to raise a presumption of interest in the premises on behalf of the occupant.” Pell v. McElrov (1868) 36 Cal. 268, 273.] The possession, however, must be

sufficiently open, notorious, and visible to impart the fact of possession. [See e.g., Taber v. Beske (1920) 182 Cal. 214, 217; 187 P. 746; High Fidelity Enterprises. Inc. v. Hull (1962) 210 Cal.App.2d 279, 281; 26 Cal.Rptr. 654.] In addition, the possession must be inconsistent with record title. [See e.g., Evans v. Faught (1965) 231 Cal.App.2d 698, 705; 42 Cal.Rptr. 133.] Thus, for example, a subsequent purchaser from a purchaser at a foreclosure sale could not claim bona fide purchaser status against one in open and notorious possession of the premises. (See Evans v. Superior Court, supra, 67 Cal.App.3d 162, 169.] In addition, possession can be shown by the use of the property by tenants. [See e.g., Manig v. Bachman (1954) 127 Cal.App.2d 216, 221-22; 273 P.2d 596.] Although generally the burden of proof is placed on the person claiming to be a bona fide purchaser [see e.g., Beattie v. Crewdson (1899) 124 Cal. 577, 579; 57 P. 463; Hodges v. Lochhead (1963) 217 Cal.App.2d 199, 203-05; 31 Cal.Rptr. 879], the burden is switched to the party claiming that notice should be implied from possession. [See High Fidelity Enterprises, Inc. v. Hull, supra, 210 Cal.App.2d 279, 281.]

Even though notice may have to be taken, the purchaser is only subject to the facts which would have been uncovered by an inquiry. In Keim v. Roether (1939) 32 Cal.App.2d 70; 89 P.2d 187, the plaintiff was induced to deed property to another knowing that it was going to be used as security for loans to be invested in an

enterprise which the plaintiff did not know to be a sham. The property was subsequently encumbered. After discovering the fraud, plaintiff attempted to invalidate the encumbrance. Plaintiff contended that plaintiff’s possession of the property when the encumbrance was placed on the property by a different owner of record, gave the encumbrancer notice of the plaintiff’s rights. The court rejected plaintiff’s position since any inquiry made by the encumbrancer would not have revealed any fraud because the fraud was then unknown to the plaintiff.

Certain defects in a trust deed will render it void even in the hands of a bona fide purchaser. A forged trust deed is absolutely invalid. However, a bona fide purchaser may still prevail if the grantor or trustor ratified or is estopped to deny the signature. [See Trout v. Tavlor, supra, 220 Cal. 652, 656-57; Blaisdell v. Leach, supra, 101 Cal. 405, 409; Crittenden v. McCloud (1951) 106 Cal.App.2d 42, 50; 234 P.2d 642.] If a trust deed is not delivered, it is invalid. If a trust deed is altered before delivery, it is void; however, if it is altered after delivery, a bona fide purchaser takes the instrument according to its original tenor. (See 2 Miller & Starr, Current Law of California Real Estate 590-91.) If the trust deed was procured through fraud in the factum (as opposed to fraud in the inducement), the trust deed is void. (See discussion in section on fraud in the factum, Chapter V A 6, infra, “Forgery and Fraud in the Factum”.]

A lawyer representing a homeowner in foreclosure should assure that actual or constructive notice of the homeowner’s claims are given to all potential purchasers. If rescission is an appropriate remedy, a notice of rescission should be recorded and served as soon as possible. A lis pendens should also be prepared when the action is commenced. Any temporary restraining order or preliminary injunction enjoining the sale should be recorded. If there is insufficient time to prepare these documents prior to the sale, the lawyer should consider sending the client to the sale with others to inform potential bidders orally and in writing of the trustor’s claims.

state sites for foreclosure help

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MEDIA CENTER

VIDEO

Home Front: California agency looks at ways to stem defaults ShareThis

Upstairs in Sacramento’s fashionable Senator Office Building, three full-time staffers and a steering committee of 12 are hurriedly crafting solutions to the raging mortgage crisis that neither banks nor the federal government has been able to stop. Read more…

Fighting for Mortgage Reform

http://www.youtube.com/v/PNU6WCSMPV0&hl=en&fs=1&

(Sacramento) One California state lawmaker is fighting to reverse the mortgage meltdown. State Assemblymember Ted Lieu (D-Torrance) says its time for financial institutions that have been bailed out by taxpayer dollars to do more to keep struggling homeowners in their homes. A new law authored by Assemblymember Lieu will force lenders to run a comprehensive loan modification program or face a 90 day foreclosure moratorium. And, Lieu says, his California Foreclosure Prevention Act is just the first step so hes introduced new legislation that will end some of the worst practices of the subprime loan industry. Heres more in this Assembly Web Report.

Foreclosure Relief Bill Headed to Governor’s Desk

http://www.youtube.com/v/XExe0-jcnGA&hl=en&fs=1&rel=0

(Sacramento) – Legislation by Assembly Speaker Karen Bass (D-Los Angeles) and Senate President pro Tem Don Perata (D-Oakland) providing immediate relief to homeowners caught in the mortgage crisis is on its way to the Governor’s desk. As we learn in this Assembly Web Report, SB 1137 would require lenders to contact property owners to attempt to avoid foreclosure, provide tenants additional time to move from a foreclosed property and mandate maintenance of foreclosed properties to diminish the impact on the value of neighboring homes. The legislation is an urgency measure, meaning it will become law once the Governor signs it.

Fixing the Foreclosure Crisis

http://www.youtube.com/v/rF8VKe_vK3g&hl=en&rel=0

(Sacramento) – As the mortgage meltdown in America continues to cause stress and strain for thousands of families, Assembly Democrats in the California State Legislature are working to reform the mortgage industry, hoping the proposed regulations will mitigate the financial pain. Led by Assembly Speaker Karen Bass (D-Los Angeles) and Assemblymember Ted Lieu (D-Torrance), Assembly Democrats have crafted a package of legislation designed to change the way home loans are prepared and implemented. Here’s more on the Assembly Democrat’s mortgage crisis relief and reform package in this Assembly Web Report.

Assemblymember Caballero Helping Constituents With Mortgage Crisis Issues

http://www.youtube.com/v/R5pLho83XKw&rel=1

(Sacramento) – The sub-prime mortgage crisis continues to ravage families throughout California and the nation. Assemblymember Anna Caballero (D-Salinas) says in 2007 home foreclosures skyrocketed in her 28th Assembly District that includes portions of Monterey, San Benito , Santa Clara and Santa Cruz counties. A package of Democratic measures to relieve some of the problems in the mortgage industry continues to move forward in the Assembly. As we learn in this Assembly Web Report, Assemblywoman Caballero is bringing helpful information directly to her constituents by hosting mortgage crisis forums throughout her district.

Assembly Democrats Take Action to Relieve Sub-prime Mortgage Crisis

http://www.youtube.com/v/QaooIYl2hd4&rel=1

(Sacramento) – As the sub-prime mortgage crisis continues to ravage families throughout the state and the nation Assembly Democrats are moving forward with legislation to help consumers who are in danger of losing their homes. Yesterday afternoon the Assembly Committee on Banking and Finance approved legislation from Assemblymembers Ted Lieu, Karen Bass and Alberto Torrico that will require lenders to report how they’re helping consumers who face possible foreclosure, that will keep “foreclosure consultants” from using predatory methods to take advantage of homeowners and that will require lenders to provide more and better notifications to homeowners of expected mortgage payment hikes.

Assembly Democrats on Mortgage Crisis

http://www.youtube.com/v/xHol_uxp1LQ&rel=0

(Sacramento) — Assembly Democrats, led by Speaker of the Assembly Fabian Núñez, are calling for a special legislative session to address the growing foreclosure crisis. The Speaker and the Assembly Democrats have introduced a package of bills designed to stem the rising tide of foreclosures and keep the problem from happening again in the future. As we learn in this Assembly Web Report the Center for Responsible Lending says nearly 180,000 California homes will be lost to foreclosure from the 826,900 sub-prime loans made in 2005-2006 alone. Thousands of families are suffering and California could lose nearly $3 billion in property tax revenue.

Stockton Foreclosure Rates Worst in Nation

http://mfile.akamai.com/14081/wmv/vod.ibsys.com/2007/1115/14600265.200k.asx

Stockton has the worst foreclosure rates in the nation for the third quarter of this year and Sacramento is not far behind.

Lawmakers Look for Foreclosure Fixes

http://mfile.akamai.com/14081/wmv/vod.ibsys.com/2007/1102/14498802.200k.asx

Part of the government’s new program encourages people to get help before they’re too deep in debt….Nov 02, 2007

Modesto Leads in Foreclosures Nationwide

http://mfile.akamai.com/14081/wmv/vod.ibsys.com/2007/0919/14145823.200k.asx

The sub prime lending mess created a housing bubble in the Sacramento Valley. In August, Modesto had more foreclosures than any other city in the nation….Sep 18, 2007

Bush Announces Initiatives for Mortgage Crisis

http://mfile.akamai.com/14081/wmv/vod.ibsys.com/2007/0831/14024625.200k.asx

President Bush announces several initiatives to address the escalating mortgage crisis and help homeowners who are facing foreclosure….Aug 31, 2007

All Stories on KCRA.com with Foreclosure in the heading

http://www.youtube.com/v/ge5mx3cyNLM&rel=0

Speaker Fabian Núñez on the Home Mortgage Crisis – part 1

http://www.youtube.com/v/t9kRZZxFkzI&rel=0

Speaker Fabian Núñez on the Home Mortgage Crisis – part 2

http://www.youtube.com/v/n1nQgiqHy44&rel=0

Speaker Fabian Núñez on the Home Mortgage Crisis – part 3

http://video.google.com/googleplayer.swf?docId=-6796823761430488459&hl=en

Assembly Banking and Finance Committee Chair Ted Lieu on the Home Mortgage Crisis

http://video.google.com/googleplayer.swf?docId=4566431094117868557&hl=en

Assembly Banking and Finance Committee Chair Ted Lieu on the Home Mortgage Crisis (part 2)

http://video.google.com/googleplayer.swf?docId=6265790924257265530&hl=en

Assemblymember Kevin de León on the Home Mortgage Crisis

http://video.google.com/googleplayer.swf?docId=-5026681319705120773&hl=en

Assembly Labor and Employment Committee Chair Sandré Swanson on the Home Mortgage Crisis

http://video.google.com/googleplayer.swf?docId=6654387921883820208&hl=en

Assembly Judiciary Committee Chair Dave Jones on the Home Mortgage Crisis

http://video.google.com/googleplayer.swf?docId=-9170833597049132957&hl=en

Assemblymember Kevin de León on the Home Mortgage Crisis (In Spanish)

http://video.google.com/googleplayer.swf?docId=7005864128976048040&hl=en

Assemblymember Kevin de León on the Home Mortgage Crisis – (part 2) (In Spanish)

AUDIO

NEWS

Brown Asks for Halt to All GMAC/Ally Financial Evictions in California


By: David Dayen Saturday September 25, 2010 7:37 am	Tweet8 Share4

When Ally Financial, formerly GMAC Mortgage, appeared to suspend foreclosure evictions in 23 states, they left out the ones where a judge is not required to sign off on foreclosures, including California, one of the four “sand states” with a massive amount of delinquencies and defaults. However, Attorney General Jerry Brown, who is running for Governor, has found a reason to demand a delay to any Ally/GMAC foreclosures:

California officials today demanded that Ally Financial Inc. stop foreclosing on homes in the state, citing reports indicating the big mortgage lender is violating the law.

The cease-and-desist letter, issued by Attorney General Jerry Brown, came as officials in several other states began investigating Ally’s operations […]

According to Brown, California law forbids a lender from issuing a notice of default – the first step toward foreclosure – unless it can show it has tried to contact the borrower. The law covers mortgages originated between 2003 and 2007.

If Jeffrey Stephan, the robo-signer who processed thousands of Ally/GMAC foreclosure affadavits with the courts, spent around a minute on each set of documentation, he cannot possibly say with any certainty that the lender contacted the borrowers. As Yves Smith says, Stephan could also have been engaged in a cover-up, knowingly signing off on documents where the lender never made the contact.

The New York Times has finally jumped in on this, assigning the article to David Streitfeld, who has revealed his bias against homeowners in previous stories. Streitfeld generally gets this one right, although you can see his slip showing at various points.

Florida lawyers representing borrowers in default said they would start filing motions as early as next week to have hundreds of foreclosure actions dismissed.

While GMAC is the first big lender to publicly acknowledge that its practices might have been improper, defense lawyers and consumer advocates have long argued that numerous lenders have used inaccurate or incomplete documents to remove delinquent owners from their houses.

The issue has broad consequences for the millions of buyers of foreclosed homes, some of whom might not have clear title to their bargain property. And it may offer unforeseen opportunities for those who were evicted.

“You know those billboards that lawyers put up seeking divorcing or bankrupt clients?” asked Greg Clark, a Florida real estate lawyer. “It’s only a matter of time until they start putting up signs that say, ‘You might be entitled to cash payment for wrongful foreclosure.’”

I hope he’s not intimating that the borrowers are taking advantage of the poor lenders and servicers, and using fly-by-night ambulance chasers to boot. GMAC/Ally, and many other lenders, broke the rules, lied to the judges, forged signatures, and took people’s homes under false pretenses. I know this isn’t normal practice in this country anymore, but they’re supposed to face the consequences.

Streitfeld also gets the Treasury Department on the record. The federal government is the majority owner in GMAC during the bank bailout.

“We have discussed the current situation with GMAC and expect them to take prompt action to correct any errors,” said Mark Paustenbach, a spokesman for the Treasury Department.

Sounds pretty hands-off to me. But they’re going to have to face up to this problem soon, because it’s about to spread nationwide.

YOU MAY BE ENTITLED TO CASH PAYMENT FOR WRONGFUL FORECLOSURE — Coming to a Billboard Near YOU

Posted on September 25, 2010 by Foreclosureblues

YOU MAY BE ENTITLED TO CASH PAYMENT FOR WRONGFUL FORECLOSURE — Coming to a Billboard Near YOU

Posted on September 25, 2010 by Neil Garfield

GARFIELD’S NOTE: Well it has finally happened. Three years ago I couldn’t get a single lawyer anywhere to consider this line of work. I predicted that this area of expertise in their practice would dwarf anything they were currently doing including personal injury and malpractice. I even tried to guarantee fees to lawyers and they wouldn’t take it. Now there are hundreds, if not thousands of lawyers who are either practicing in this field or are about to take the plunge. The early adopters who attended my workshops and read my materials, workbooks and bought the DVD’s are making some serious money and have positioned themselves perfectly ahead of the crowd.

Congratulations, everyone, it was the readers who made this happen. Without your support I would not have been able to reach the many thousands of homeowners and lawyers and government officials whoa re now turning the corner in their understanding of this mess and their willingness to do something about it.

The article below from Streitfeld sounds like it was written by me. No attribution though. No matter. The message is out. The foreclosures were and are wrongful, illegal, immoral and the opposite of any notion we have of justice. They were dressed up to look right and they got way with it for years because so many homeowners simply gave up convinced they had only to blame themselves for getting into a raw deal. Those homeowners who gave up were wrong and now they will find themselves approached by lawyers who will promise them return of the house they lost or damages for the wrongful foreclosure. When you left, you thought your loan had not been paid and that the notice you received was legitimate. You were wrong on both counts. The loan had been paid, there were other people who had signed up for liability along with you to justify the price on steroids that was sold to your lender (investor).

For those who are just catching up, here it is in a nutshell: Borrower signs a note to ABC Corp., which says it is the lender but isn’t. So you start right away with the wrong party named on the note and mortgage (deed of trust) PLUS the use of a meaningless nominee on the mortgage (deed of trust) which completely invalidates the documents and clouds the title. Meanwhile the lender gets a mortgage bond NOT SIGNED BY THE BORROWER. The bond says that this new “entity” (which usually they never bothered to actually form) will pay them from “receivables.” The receivables include but ARE NOT LIMITED TO the payments from the borrower who accepted funding of a loan. These other parties are there to justify the fact that the loan was sold at a huge premium to the lender without disclosure to either the borrower or the lender. (The tier 2 Yield Spread Premium that raises some really juicy causes of action under TILA, RESPA and the 10b-5 actions, including treble damages, attorney fees and restitution).

And and by the way for the more sophisticated lawyers, now would be the time to sharpen up your defense skills and your knowledge of administrative laws. Hundreds of thousands of disciplinary actions are going to filed against the professionally licensed people who attended the borrower’s “closing” and who attended the closing with the “lender.” With their livelihood at stake, their current arrogance will morph into abject fear. Here is your line when you quote them fees: “Remember that rainy day you were saving up for? Well, it’s raining!” Many lawyers and homeowners are going to realize that they have easy pickings when they bring administrative grievances in quasi criminal proceedings (don’t threaten it, that’s a crime, just do it) which results in restitution funded by the professional liability insurer. careful about the way you word the grievance. Don’t go overboard or else the insurance carrier will deny coverage based upon the allegation of an intentional act. You want to allege gross negligence.

EVERYBODY in the securitization structure gets paid premium money to keep their mouth shut and money changes hands faster than one of those street guys who moves shells or cards around on a table. Yes everyone gets paid — except the borrower who never got the benefit of his the bargain he signed up for — a home worth whatever they said it was worth at closing. It wasn’t worth that and it will never be worth that and everyone except the borrower knew it with the possible exception of some lenders who didn’t care because the other people who the borrower knew nothing about, had “guaranteed” the value of the lender’s investment and minimized the risk to the level of “cash equivalent” AAA-rated.

The securitization “partners” did not dot their “i’s” nor cross their “t’s.” And that is what the article below is about. But they failed to do that for a reason. They didn’t care about the documents because they never had any intention of using them anyway. It was all a scam cleverly disguised as a legitimate part of the home mortgage industry. It was instead a Ponzi scheme without any of the attributes of real appraisals, real underwriting reviews and committees and decisions. They bought the signature of the borrowers by promising the moon and they sold the apparent existence of signature (which in many cases) did not even exist) to Lenders by promising the stars.

And now, like it wasn’t news three years ago when we first brought it up, suddenly mainstream media is picking up the possibility that the foreclosures were all fraudulent also. The pretender lenders were intentionally and knowingly misrepresenting themselves as lenders in order to grab property that didn’t belong to them and to which they had no rights — to the detriment of both the borrowers and the lenders. And some judges, government officials and even lawyers appear to be surprised by that, are you?

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GMAC’s Errors Leave Foreclosures in Question

By DAVID STREITFELD

The recent admission by a major mortgage lender that it had filed dubious foreclosure documents is likely to fuel a furor against hasty foreclosures, which have prompted complaints nationwide since housing prices collapsed.

Lawyers for distressed homeowners and law enforcement officials in several states on Friday seized on revelations by GMAC Mortgage, the country’s fourth-largest home loan lender, that it had violated legal rules in its rush to file many foreclosures as quickly as possible.

Attorneys general in Iowa and North Carolina said they were beginning separate investigations of the lender, and the attorney general in California directed the company to suspend all foreclosures in that state until it “proves that it’s following the letter of the law.”

The federal government, which became the majority owner of GMAC after supplying $17 billion to prevent the lender’s failure, said Friday that it had told the company to clean up its act.

Florida lawyers representing borrowers in default said they would start filing motions as early as next week to have hundreds of foreclosure actions dismissed.

While GMAC is the first big lender to publicly acknowledge that its practices might have been improper, defense lawyers and consumer advocates have long argued that numerous lenders have used inaccurate or incomplete documents to remove delinquent owners from their houses.

The issue has broad consequences for the millions of buyers of foreclosed homes, some of whom might not have clear title to their bargain property. And it may offer unforeseen opportunities for those who were evicted.

“You know those billboards that lawyers put up seeking divorcing or bankrupt clients?” asked Greg Clark, a Florida real estate lawyer. “It’s only a matter of time until they start putting up signs that say, ‘You might be entitled to cash payment for wrongful foreclosure.’ ”

The furor has already begun in Florida, which is one of the 23 states where foreclosures must be approved by courts. Nearly half a million foreclosures are in the Florida courts, overwhelming the system.

J. Thomas McGrady, chief judge in the foreclosure hotbed of St. Petersburg, said the problems went far beyond GMAC. Four major law firms doing foreclosures for lenders are under investigation by the Florida attorney general.

“Some of what the lenders are submitting in court is incompetent, some is just sloppy,” said Judge McGrady of the Sixth Judicial Circuit in Clearwater, Fla. “And somewhere in there could be a fraudulent element.”

In many cases, the defaulting homeowners do not hire lawyers, making problems generated by the lenders hard to detect.

“Documents are submitted, and there’s no one to really contest whether it is accurate or not,” the judge said. “We have an affidavit that says it is, so we rely on that. But then later we may find out that someone lost their home when they shouldn’t have. We don’t like that.”

GMAC, which is based in Detroit and is now a subsidiary of Ally Financial, first put the spotlight on its procedures when it told real estate agents and brokers last week that it was immediately and indefinitely stopping all evictions and sales of foreclosed property in the states — generally on the East Coast and in the Midwest — where foreclosures must be approved by courts.

That was a highly unusual move. So was the lender’s simultaneous withdrawal of important affidavits in pending cases. The affidavits were sworn statements by GMAC officials that they had personal knowledge of the foreclosure documents.

The company played down its actions, saying the defects in its foreclosure filings were “technical.” It has declined to say how many cases might be affected.

A GMAC spokeswoman also declined to say Friday whether the company would stop foreclosures in California as the attorney general, Jerry Brown, demanded. Foreclosures in California are not judicial.

GMAC’s vague explanations have been little comfort to some states.

“We cannot allow companies to systematically flout the rules of civil procedure,” said one of Iowa’s assistant attorneys general, Patrick Madigan. “They’re either going to have to hire more people or the foreclosure process is going to have to slow down.”

GMAC began as the auto financing arm of General Motors. During the housing boom, it made a heavy bet on subprime borrowers, giving loans to many people who could not afford a house.

“We have discussed the current situation with GMAC and expect them to take prompt action to correct any errors,” said Mark Paustenbach, a spokesman for the Treasury Department.

GMAC appears to have been forced to reveal its problems in the wake of several depositions given by Jeffrey Stephan, the team leader of the document execution unit in the lender’s Fort Washington, Pa., offices.

Mr. Stephan, 41, said in one deposition that he signed as many as 10,000 affidavits and other foreclosure documents a month; in another he said it was 6,000 to 8,000.

The affidavits state that Mr. Stephan, in his capacity as limited signing officer for GMAC, had examined “all books, records and documents” involved in the foreclosure and that he had “personal knowledge” of the relevant facts.

In the depositions, Mr. Stephan said he did not do this.

In a June deposition, a lawyer representing a foreclosed household put it directly: “So other than the due date and the balances due, is it correct that you do not know whether any other part of the affidavit that you sign is true?”

“That could be correct,” Mr. Stephan replied.

Mr. Stephan also said in depositions that his signature had not been notarized when he wrote it, but only later, or even the next day.

GMAC said Mr. Stephan was not available for an interview. The lender said its “failures” did not “reflect any disrespect for our courts or the judicial processes.”

Margery Golant, a Boca Raton, Fla., foreclosure defense lawyer, said GMAC “has cracked open the door.”

“Judges used to look at us strangely when we tried to tell them all these major financial institutions are lying,” said Ms. Golant, a former associate general counsel for the lender Ocwen Financial.

Her assistants were reviewing all of the law firm’s cases Friday to see whether GMAC had been involved. “Lawyers all over Florida and I’m sure all over the country are drafting pleadings,” she said. “We’ll file motions for sanctions and motions to dismiss the case for fraud on the court.”

For homeowners in foreclosure, the admissions by GMAC are bringing hope for resolution.

One such homeowner is John Turner, a commercial airline pilot based near Detroit. Three years ago he bought a Florida condo, thinking he would move down there with a girlfriend. The relationship fizzled, his finances dwindled, and the place went into foreclosure.

GMAC called several times a week, seeking its $195,000. Mr. Turner says he tried to meet the lender halfway but failed. Last week it put his case in limbo by withdrawing the affidavit.

“We should be able to come to an agreement that’s beneficial to both of us,” Mr. Turner said. “I feel like I’m due something.”

Foreclosure code

“Mortgage” Defined
2920. (a) A mortgage is a contract by which specific property,
including an estate for years in real property, is hypothecated for the performance of an act, without the
necessity of a change of possession.
(b) For purposes of Sections 2924 to 2924h, inclusive, “mortgage” also means any security device or
instrument, other than a deed of trust, that confers a power of sale affecting real property or an estate
for years therein, to be exercised after breach of the obligation so secured, including a real property
sales contract, as defined in Section 2985, which contains such a provision.

Property in possession of adverse claimant
2921. A mortgage may be created upon property held adversely to the mortgagor.

Writing-Formalities
2922. A mortgage can be created, renewed, or extended, only by writing, executed with the formalities
required in the case of a grant of real property.

Lien-Special-Possession
2923.
The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of
possession.

Broker’s Duty to Borrower
2923.1.
(a) A mortgage broker providing mortgage brokerage services to a borrower is the fiduciary of the
borrower, and any violation of the broker’s fiduciary duties shall be a violation of the mortgage broker’s
license law. This fiduciary duty includes a requirement that the mortgage broker place the economic
interest of the borrower ahead of his or her own economic interest. A mortgage broker who provides
mortgage brokerage services to the borrower owes this fiduciary duty to the borrower regardless of
whether the mortgage broker is acting as an agent for any other party in connection with the residential
mortgage loan transaction.
(b) For purposes of this section, the following definitions apply:
(1) “Licensed person” means a real estate broker licensed under the Real Estate Law (Part 1
(commencing with Section 10000) of Division 4 of the Business and Professions Code), a finance
lender or broker licensed under the California Finance Lenders Law (Division 9 (commencing with
Section 22000) of the Financial Code), a residential mortgage lender licensed under the California
Residential Mortgage Lending Act (Division 20 (commencing with Section 50000) of the Financial
Code), a commercial or industrial bank organized under the Banking Law (Division 1 (commencing with
Section 99) of the Financial Code), a savings association organized under the Savings Association
Law (Division 2 (commencing with Section 5000) of the Financial Code), and a credit union organized
under the California Credit Union Law (Division 5 (commencing with Section 14000) of the Financial
Code).
(2) “Mortgage broker” means a licensed person who provides
mortgage brokerage services. For purposes of this section, a licensed person who makes a residential
mortgage loan is a “mortgage broker,”and subject to the requirements of this section applicable to
mortgage brokers, only with respect to transactions in which the
licensed person provides mortgage brokerage services.
(3) “Mortgage brokerage services” means arranging or attempting to arrange, as exclusive agent for
the borrower or as dual agent for the borrower and lender, for compensation or in expectation of
compensation, paid directly or indirectly, a residential mortgage loan made by an unaffiliated third party.
(4) “Residential mortgage loan” means a consumer credit
transaction that is secured by residential real property that is
improved by four or fewer residential units.
(c) The duties set forth in this section shall not be construed to limit or narrow any other fiduciary duty of
a mortgage broker.

Pre-Foreclosure – Required Notice and Duty to Confer with Borrower –
2923.5.
(a) (1) A mortgagee, trustee, beneficiary, or authorized
agent may not file a notice of default pursuant to Section 2924 until 30 days after initial contact is made
as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in
subdivision (g).
(2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone
in order to assess the borrower’s financial situation and explore options for the borrower to avoid
foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the
borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee,
beneficiary, or authorized agent shall schedule the
meeting to occur within 14 days. The assessment of the borrower’s financial situation and discussion
of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose.
In either case, the borrower shall be provided the toll-free telephone number made available by the
United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing
counseling agency. Any meeting may occur telephonically.
(b) A notice of default filed pursuant to Section 2924 shall
include a declaration that the mortgagee, beneficiary, or authorized agent has contacted the borrower,
has tried with due diligence to contact the borrower as required by this section, or that no contact was
required pursuant to subdivision (h).
(c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to
the enactment of this section and did not subsequently file a notice of rescission, then the mortgagee,
trustee, beneficiary, or authorized agent shall, as part of the notice of sale filed pursuant to Section
2924f, include a declaration that either:
(1) States that the borrower was contacted to assess the borrower’s financial situation and to explore
options for the borrower to avoid foreclosure.
(2) Lists the efforts made, if any, to contact the borrower in the
event no contact was made.
(d) A mortgagee’s, beneficiary’s, or authorized agent’s loss
mitigation personnel may participate by telephone during any contact required by this section.
(e) For purposes of this section, a “borrower” shall include a
mortgagor or trustor.
(f) A borrower may designate, with consent given in writing, a
HUD-certified housing counseling agency, attorney, or other advisor to discuss with the mortgagee,
beneficiary, or authorized agent, on the borrower’s behalf, the borrowers financial situation and options
for the borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy
the contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan
offered at the meeting by the mortgagee, beneficiary, or authorized agent is subject to approval by the
borrower.
(g) A notice of default may be filed pursuant to Section 2924 when a mortgagee, beneficiary, or
authorized agent has not contacted a borrower as required by paragraph (2) of subdivision (a) provided
that the failure to contact the borrower occurred despite the due diligence of the mortgagee,
beneficiary, or authorized agent. For purposes of this section, “due diligence” shall require and mean
all of the following:
(1) A mortgagee, beneficiary, or authorized agent shall first
attempt to contact a borrower by sending a first-class letter that
includes the toll-free telephone number made available by HUD to find a HUD-certified housing
counseling agency.
(2) (A) After the letter has been sent, the mortgagee,
beneficiary, or authorized agent shall attempt to contact the
borrower by telephone at least three times at different hours and on different days. Telephone calls
shall be made to the primary telephone number on file.
(B) A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated
system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a
live representative of the mortgagee, beneficiary, or authorized agent.
(C) A mortgagee, beneficiary, or authorized agent satisfies the
telephone contact requirements of this paragraph if it determines, after attempting contact pursuant to
this paragraph, that the borrower’s primary telephone number and secondary telephone number or
numbers on file, if any, have been disconnected.
(3) If the borrower does not respond within two weeks after the telephone call requirements of
paragraph (2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send a
certified letter, with return receipt requested.
(4) The mortgagee, beneficiary, or authorized agent shall provide a means for the borrower to contact it
in a timely manner, including a toll-free telephone number that will provide access to a live
representative during business hours.
(5) The mortgagee, beneficiary, or authorized agent has posted a prominent link on the homepage of its
Internet Web site, if any, to the following information:
(A) Options that may be available to borrowers who are unable to afford their mortgage payments and
who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore
those options.
(B) A list of financial documents borrowers should collect and be prepared to present to the mortgagee,
beneficiary, or authorized agent when discussing options for avoiding foreclosure.
(C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure
with their mortgagee, beneficiary, or authorized agent.
(D) The toll-free telephone number made available by HUD to find a HUD-certified housing counseling
agency.
(h) Subdivisions (a), (c), and (g) shall not apply if any of the
following occurs:
(1) The borrower has surrendered the property as evidenced by either a letter confirming the surrender
or delivery of the keys to the property to the mortgagee, trustee, beneficiary, or authorized agent.
(2) The borrower has contracted with an organization, person, or entity whose primary business is
advising people who have decided to leave their homes on how to extend the foreclosure process and
avoid their contractual obligations to mortgagees or beneficiaries.
(3) A case has been filed by the borrower under Chapter 7, 11, 12, or 13 of Title 11 of the United States
Code and the bankruptcy court has not entered an order closing or dismissing the bankruptcy case, or
granting relief from a stay of foreclosure.
(i) This section shall apply only to mortgages or deeds of trust
recorded from January 1, 2003, to December 31, 2007, inclusive, that are secured by owner-occupied
residential real property containing no more than four dwelling units. For purposes of this subdivision,
“owner-occupied” means that the residence is the principal residence of the borrower as indicated to
the lender in loan documents.
(j) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends that date.

Notice of Sale – Additional 90 Days
2923.52. (a) Notwithstanding paragraph (3) of subdivision (a) of
Section 2924, a mortgagee, trustee, or other person authorized to take sale shall not give notice of sale
until at least 90 days after the lapse of three months as set forth in paragraph (2) of
subdivision (a) of Section 2924, in order to allow the parties to
pursue a loan modification to prevent foreclosure, if all of the
following conditions exist:
(1) The loan was recorded during the period of January 1, 2003, to January 1, 2008, inclusive, and is
secured by residential real property.
(2) The loan at issue is the first mortgage or deed of trust that
the property secures.
(3) The borrower occupied the property as the borrower’s principal residence at the time the loan
became delinquent.
(4) The notice of default has been recorded on the property.
(b) This section does not apply to loans serviced by a mortgage loan servicer if that mortgage loan
servicer has obtained a temporary or final order of exemption pursuant to Section 2923.53 that is
current and valid at the time the notice of sale is given.
(c) This section does not apply to loans made, purchased, or
serviced by:
(1) A California state or local public housing agency or
authority, including state or local housing finance agencies
established under Division 31 (commencing with Section 50000) of the Health and Safety Code and
Chapter 6 (commencing with Section 980) of Division 4 of the Military and Veterans Code.
(2) Loans that are collateral for securities purchased by an
agency or authority described in paragraph (1).
(d) This section shall become operative 14 days after the issuance of regulations, which shall include
the form of the application for mortgage loan servicers, by the commissioner pursuant to subdivision
(d) of Section 2923.53.(e) This section shall remain in effect only until January 1, 2011, and as of that
date is repealed, unless a later enacted statute, that is enacted before January 1, 2011, deletes or
extends that date.

Loan Modification
2923.53. (a) A mortgage loan servicer that has implemented a
comprehensive loan modification program that meets the requirements of this section shall have the
loans that it services exempted from the provisions of Section 2923.52, upon order of the
commissioner. A comprehensive loan modification program shall include all of the
following features:
(1) The loan modification program is intended to keep borrowers whose principal residences are
homes located in California in those homes when the anticipated recovery under the loan modification
or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis.
(2) The loan modification program targets a ratio of the borrower’s housing-related debt to the
borrower’s gross income of 38 percent or less, on an aggregate basis in the program.
(3) The loan modification program includes some combination of the following features:
(A) An interest rate reduction, as needed, for a fixed term of at
least five years.
(B) An extension of the amortization period for the loan term, to no more than 40 years from the original
date of the loan.
(C) Deferral of some portion of the principal amount of the unpaid principal balance until maturity of the
loan.
(D) Reduction of principal.
(E) Compliance with a federally mandated loan modification
program.
(F) Other factors that the commissioner determines are
appropriate. In determining those factors, the commissioner may consider efforts implemented in other
jurisdictions that have resulted in a reduction in foreclosures.
(4) When determining a loan modification solution for a borrower under the loan modification program,
the servicer seeks to achieve long-term sustainability for the borrower.
(b) (1) A mortgage loan servicer may apply to the commissioner for an order exempting loans that it
services from Section 2923.52. If the mortgage loan servicer elects to apply for an order, the
application shall be in the form and manner determined by the commissioner.
(2) Upon receipt of an initial application for exemption under
this section, the commissioner shall immediately notify the applicant of the date of receipt of the
application and shall issue a temporary order, effective from that date of receipt, exempting the
mortgage loan servicer from the provisions of subdivision (a) of Section 2923.52. The temporary order
shall remain in effect until a final order has been issued by the commissioner pursuant to paragraph
(3). If the initial application for exemption is denied pursuant to
paragraph (3), the temporary order shall remain in effect for 30 days after the date of denial.
(3) Within 30 days of receipt of an initial or revised application, the commissioner shall make a final
determination on whether the application meets the criteria of subdivision (a). If, after review of the
application, the commissioner concludes that the mortgage loan servicer has a comprehensive loan
modification program that meets the requirements of subdivision (a), the commissioner shall issue a
final order exempting the mortgage loan servicer from the requirements of Section 2923.52. If the
commissioner concludes that the loan modification program does not meet the requirements of
subdivision (a), the application for exemption shall be denied and a final order shall not be issued.
(4) A mortgage loan servicer may submit a revised application if its application for exemption is denied.
(c) The commissioner may revoke a final order, upon reasonable notice and an opportunity to be heard,
if the mortgage loan servicer has submitted a materially false or misleading application or if the
approved loan modification program has been materially altered from the loan modification program on
which the exemption was based. A revocation by the commissioner shall not be retroactive.
(d) The commissioner shall adopt, no later than 10 days after the date this section takes effect,
emergency and final regulations to clarify the application of this section and Section 2923.52, including
the creation of the application for mortgage loan servicers and requirements regarding the reporting of
loan modification data by mortgage loan servicers.
(e) Three months after the first exemption is issued pursuant to subdivision (b) by order of any
commissioner specified in paragraph (1) of subdivision (j), the Secretary of Business, Transportation
and Housing shall submit a report to the Legislature regarding the details of the actions taken to
implement this section and the numbers of applications received and orders issued. The secretary
shall submit an additional report six months from the date of the submission of the first report and
every six months thereafter.
Within existing resources, the commissioners shall collect, from some or all mortgage loan servicers,
data regarding loan modifications accomplished pursuant to this section and shall make the data
available on an Internet Web site at least quarterly.
(f) The Secretary of Business, Transportation and Housing shall maintain on an Internet Web site a
publicly available list disclosing the final orders granting exemptions, the date of each order, and a link
to Internet Web sites describing the loan modification programs.
(g) Until January 1, 2010, the commissioner is authorized to
contract for goods and services necessary to implement the provisions of this section and Section
2923.52, and any such contract shall be exempt from Chapter 2 (commencing with Section 10290) of
Part 2 of Division 2 of the Public Contract Code. Not less than 30 days prior to awarding any contract
under this section, the commissioner shall provide the pending contract documents to the Joint
Legislative
Budget Committee.
(h) Any person who violates any provision of this section or
Section 2923.52 shall be deemed to have violated his or her license law as it relates to these
provisions.
(i) Nothing in this section or Section 2923.52 shall require a
servicer to violate contractual agreements for investor-owned loans or provide a modification to a
borrower who is not willing or able to pay under the modification.
(j) The submission of an application for an exemption under this section, the reliance upon such an
exemption, or the provision to the commissioner of data related to the loan modification program shall
not confer on the commissioner visitorial authority over a federally chartered financial institution.
Nothing in this subdivision is intended to affect the authority of the commissioner over a federally
chartered financial institution pursuant to federal law or regulation.
(k) For purposes of this section and Sections 2923.52 and 2923.54:
(1) “Commissioner” means any of the following:
(A) The Commissioner of Corporations for licensed residential mortgage lenders and servicers and
licensed finance lenders and brokers servicing mortgage loans and any other entities servicing
mortgage loans that are not described in subparagraph (B) or (C).
(B) The Commissioner of Financial Institutions for commercial and industrial banks and savings
associations and credit unions organized in this state servicing mortgage loans.
(C) The Real Estate Commissioner for licensed real estate brokers servicing mortgage loans.
(2) “Housing-related debt” means debt that includes loan
principal, interest, property taxes, hazard insurance, flood
insurance, mortgage insurance, and homeowner association fees.
(3) “Mortgage loan servicer” means a person or entity that
receives or has the right to receive installment payments of
principal, interest, or other amounts placed in escrow, pursuant to the terms of a mortgage loan or deed
of trust, and performs services relating to that receipt or enforcement as the holder of the note or on
behalf of the holder of the note evidencing that loan.(l) This section shall remain in effect only until
January 1, 2011, and as of that date is repealed, unless a later enacted statute, that is enacted before
January 1, 2011, deletes or extends that date.

Notice of Sale
2923.54. (a) A notice of sale filed pursuant to Section 2924f shall include a declaration from the
mortgage loan servicer stating both of the following:
(1) Whether or not the mortgage loan servicer has obtained from the commissioner a final or temporary
order of exemption pursuant to Section 2923.53 that is current and valid on the date the notice of sale
is filed.
(2) Whether the timeframe for giving notice of sale specified in
subdivision (a) of Section 2923.52 does not apply pursuant to Section 2923.52 or 2923.55.
(b) Failure to comply with Section 2923.52 or 2923.53 shall not
invalidate any sale that would otherwise be valid under Section
2924f.(c) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends that date.

2923.55. Section 2923.52 shall not apply if any of the following
occurs:
(a) The borrower has surrendered the property, as evidenced by either a letter confirming the surrender
or delivery of the keys to the property to the mortgagee, trustee, beneficiary, or authorized agent.
(b) The borrower has contracted with an organization, person, or entity whose primary business is
advising people who have decided to leave their homes regarding how to extend the foreclosure
process and avoid their contractual obligations to mortgagees or beneficiaries.
(c) A case has been filed by the borrower under Chapter 7, 11, 12, or 13 of Title 11 of the United States
Code, and the bankruptcy court has not entered an order closing or dismissing the bankruptcy case or
granting relief from a stay of foreclosure.(d) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1,
2011, deletes or extends that date.

Duty to Maximize Net Present Value Owed to All Parties
2923.6. (a) The Legislature finds and declares that any duty
servicers may have to maximize net present value under their pooling and servicing agreements is
owed to all parties in a loan pool, or to all investors under a pooling and servicing agreement, not to
any particular party in the loan pool or investor under a polling and servicing agreement, and that a
servicer acts in the best interests of all parties to the loan pool or investors in the pooling and
servicing agreement if it agrees to or implements a loan modification or workout plan for which both of
the following apply:
(1) The loan is in payment default, or payment default is
reasonably foreseeable.
(2) Anticipated recovery under the loan modification or workout plan exceeds the anticipated recovery
through foreclosure on a net present value basis.
(b) It is the intent of the Legislature that the mortgagee,
beneficiary, or authorized agent offer the borrower a loan
modification or workout plan if such a modification or plan is
consistent with its contractual or other authority.
(c) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends that date.

Trust Deed Exception – Exercise of Power of Sale in Trust Deed or Mortgage
2924. (a) Every transfer of an interest in property, other than in
trust, made only as a security for the performance of another act, is to be deemed a mortgage, except
when in the case of personal property it is accompanied by actual change of possession, in which
case it is to be deemed a pledge. Where, by a mortgage created after July 27, 1917, of any estate in real
property, other than an estate at will or for years, less than two, or in any transfer in trust made after
July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred
upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for
which that mortgage or transfer is a security, the power shall not be exercised except where the
mortgage or transfer is
made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds
or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of
Corporations, or is made by a public utility subject to the provisions of the Public Utilities Act, until all
of the following apply:
(1) The trustee, mortgagee, or beneficiary, or any of their
authorized agents shall first file for record, in the office of the
recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is
situated, a notice of default. That notice of default shall include all of the following:
(A) A statement identifying the mortgage or deed of trust by
stating the name or names of the trustor or trustors and giving the book and page, or instrument
number, if applicable, where the mortgage or deed of trust is recorded or a description of the
mortgaged or trust property.
(B) A statement that a breach of the obligation for which the
mortgage or transfer in trust is security has occurred.
(C) A statement setting forth the nature of each breach actually known to the beneficiary and of his or
her election to sell or cause to be sold the property to satisfy that obligation and any other obligation
secured by the deed of trust or mortgage that is in
default.
(D) If the default is curable pursuant to Section 2924c, the
statement specified in paragraph (1) of subdivision (b) of Section 2924c.
(2) Not less than three months shall elapse from the filing of the notice of default.
(3) Except as provided in Section 2923.52, after the lapse of the three months described in paragraph
(2), the mortgagee, trustee or other person authorized to take the sale shall give notice of sale, stating
the time and place thereof, in the manner and for a time not less than that set forth in Section 2924f.
(b) In performing acts required by this article, 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 this
article, a trustee shall not be subject to Title 1.6c (commencing with Section 1788) of Part 4.
(c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of
law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the
personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the
publication of a copy thereof shall constitute prima facie evidence of compliance with these
requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for
value and without notice.
(d) All of the following shall constitute privileged
communications pursuant to Section 47:
(1) The mailing, publication, and delivery of notices as required by this section.
(2) Performance of the procedures set forth in this article.
(3) Performance of the functions and procedures set forth in this article if those functions and
procedures are necessary to carry out the duties described in Sections 729.040, 729.050, and 729.080
of the Code of Civil Procedure.
(e) There is a rebuttable presumption that the beneficiary
actually knew of all unpaid loan payments on the obligation owed to the beneficiary and secured by the
deed of trust or mortgage subject to the notice of default. However, the failure to include an actually
known default shall not invalidate the notice of sale and the beneficiary shall not be precluded from
asserting a claim to this omitted default or defaults in a separate notice of default.
(f) This section shall remain in effect only until January 1, 2011, and as of that date is repealed, unless a
later enacted statute, that is enacted before January 1, 2011, deletes or extends that date.

2924.3. (a) Except as provided in subdivisions (b) and (c), a
person who has undertaken as an agent of a mortgagee, beneficiary, or owner of a promissory note
secured directly or collaterally by a mortgage or deed of trust on real property or an estate for years
therein, to make collections of payments from an obligor under the note, shall mail the following
notices, postage prepaid, to each mortgagee, beneficiary or owner for whom the agent has agreed to
make collections from the obligor under the note:
(1) A copy of the notice of default filed in the office of the
county recorder pursuant to Section 2924 on account of a breach of obligation under the promissory
note on which the agent has agreed to make collections of payments, within 15 days after recordation.
(2) Notice that a notice of default has been recorded pursuant to Section 2924 on account of a breach of
an obligation secured by a mortgage or deed of trust against the same property or estate for years
therein having priority over the mortgage or deed of trust securing the obligation described in
paragraph (1), within 15 days after recordation or within three business days after the agent receives
the information, whichever is later.
(3) Notice of the time and place scheduled for the sale of the
real property or estate for years therein pursuant to Section 2924f under a power of sale in a mortgage
or deed of trust securing an obligation described in paragraphs (1) or (2), not less than 15 days before
the scheduled date of the sale or not later than the next business day after the agent receives the
information, whichever is later.
(b) An agent who has undertaken to make collections on behalf of mortgagees, beneficiaries or owners
of promissory notes secured by mortgages or deeds of trust on real property or an estate for years
therein shall not be required to comply with the provisions of subdivision (a) with respect to a
mortgagee, beneficiary or owner who is entitled to receive notice pursuant to subdivision (c) of Section
2924b or for whom a request for notice has been recorded pursuant to
subdivision (b) of Section 2924b if the agent reasonably believes that the address of the mortgagee,
beneficiary, or owner described in Section 2924b is the current business or residence address of that
person.
(c) An agent who has undertaken to make collections on behalf of mortgagees, beneficiaries or owners
of promissory notes secured by mortgages or deeds of trust on real property or an estate for years
therein shall not be required to comply with the provisions of paragraph (1) or (2) of subdivision (a) if
the agent knows or reasonably believes that the default has already been cured by or on behalf of the
obligor.
(d) Any failure to comply with the provisions of this section
shall not affect the validity of a sale in favor of a bona fide
purchaser or the rights of an encumbrancer for value and without notice.

Acceleration Clauses – Notice of
2924.5. No clause in any deed of trust or mortgage on property
containing four or fewer residential units or on which four or fewer residential units are to be
constructed or in any obligation secured by any deed of trust or mortgage on property containing four or
fewer residential units or on which four or fewer residential units are to be constructed that provides
for the acceleration of the due date of the obligation upon the sale, conveyance, alienation, lease,
succession, assignment or other transfer of the property subject to
the deed of trust or mortgage shall be valid unless the clause is set forth, in its entirety in both the body
of the deed of trust or
mortgage and the promissory note or other document evidencing the secured obligation. This section
shall apply to all such deeds of trust, mortgages, and obligations secured thereby executed on or after
July 1, 1972.

Acceleration Clause – Limitations
2924.6. (a) An obligee may not accelerate the maturity date of the principal and accrued interest on any
loan secured by a mortgage or deed of trust on residential real property solely by reason of any one or
more of the following transfers in the title to the real property:
(1) A transfer resulting from the death of an obligor where the
transfer is to the spouse who is also an obligor.
(2) A transfer by an obligor where the spouse becomes a coowner of the property.
(3) A transfer resulting from a decree of dissolution of the
marriage or legal separation or from a property settlement agreement incidental to such a decree which
requires the obligor to continue to make the loan payments by which a spouse who is an obligor
becomes the sole owner of the property.
(4) A transfer by an obligor or obligors into an inter vivos trust
in which the obligor or obligors are beneficiaries.
(5) Such real property or any portion thereof is made subject to a junior encumbrance or lien.
(b) Any waiver of the provisions of this section by an obligor is void and unenforceable and is contrary
to public policy.
(c) For the purposes of this section, “residential real property” means any real property which contains
at least one but not more than four housing units.
(d) This act applies only to loans executed or refinanced on or
after January 1, 1976.

Acceleration Clause – Disbursement of Insurance Proceeds – Enforceability
2924.7. (a) The provisions of any deed of trust or mortgage on real property which authorize any
beneficiary, trustee, mortgagee, or his or her agent or successor in interest, to accelerate the maturity
date of the principal and interest on any loan secured thereby or to exercise any power of sale or other
remedy contained therein upon the failure of the trustor or mortgagor to pay, at the times provided for
under the terms of the deed of trust or mortgage, any taxes, rents, assessments, or insurance
premiums with respect to the property or the loan, or any advances made by the beneficiary,
mortgagee, or his or her agent or successor in interest shall be enforceable whether or not impairment
of the security interest in the
property has resulted from the failure of the trustor or mortgagor to pay the taxes, rents, assessments,
insurance premiums, or advances.
(b) The provisions of any deed of trust or mortgage on real
property which authorize any beneficiary, trustee, mortgagee, or his or her agent or successor in
interest, to receive and control the disbursement of the proceeds of any policy of fire, flood, or other
hazard insurance respecting the property shall be enforceable whether or not impairment of the
security interest in the property has resulted from the event that caused the proceeds of the insurance
policy to become payable.

Foreclosure – Additional Notice to Occupants
2924.8. (a) Upon posting a notice of sale pursuant to Section
2924f, a trustee or authorized agent shall also post the following notice, in the manner required for
posting the notice of sale on the property to be sold, and a mortgagee, trustee, beneficiary, or
authorized agent, concurrently with the mailing of the notice of sale pursuant to Section 2924b, shall
send by first-class mail in an envelope addressed to the “Resident of property subject to foreclosure
sale” the following notice in English and the languages described in Section 1632: “Foreclosure
process has begun on this property, which may affect your right to continue to live in this
property. Twenty days or more after the date of this notice, this
property may be sold at foreclosure. If you are renting this
property, the new property owner may either give you a new lease or rental agreement or provide you
with a 60-day eviction notice.
However, other laws may prohibit an eviction in this circumstance or provide you with a longer notice
before eviction. You may wish to contact a lawyer or your local legal aid or housing counseling agency
to discuss any rights you may have.”
(b) It shall be an infraction to tear down the notice described in subdivision (a) within 72 hours of
posting. Violators shall be
subject to a fine of one hundred dollars ($100).
(c) A state government entity shall make available translations of the notice described in subdivision
(a) which may be used by a mortgagee, trustee, beneficiary, or authorized agent to satisfy the
requirements of this section.
(d) This section shall only apply to loans secured by residential real property, and if the billing address
for the mortgage note is different than the property address.
(e) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends that date.

Attorney for Trustee May Conduct Sale and Act as Auctioneer
2924a. If, by the terms of any trust or deed of trust a power of
sale is conferred upon the trustee, the attorney for the trustee, or any duly authorized agent, may
conduct the sale and act in the sale as the auctioneer for the trustee.

Copies of Notice of Sale and Default – How Procured
2924b. (a) Any person desiring a copy of any notice of default and of any notice of sale under any deed
of trust or mortgage with power of sale upon real property or an estate for years therein, as to which
deed of trust or mortgage the power of sale cannot be exercised until these notices are given for the
time and in the manner provided in Section 2924 may, at any time subsequent to recordation of the
deed of trust or mortgage and prior to recordation of notice of default thereunder, cause to be filed for
record in the office of
the recorder of any county in which any part or parcel of the real property is situated, a duly
acknowledged request for a copy of the notice of default and of sale. This request shall be signed and
acknowledged by the person making the request, specifying the name and address of the person to
whom the notice is to be mailed, shall identify the deed of trust or mortgage by stating the names of the
parties thereto, the date of recordation thereof, and the book and page where the deed of trust or
mortgage is recorded or the recorder’s number, and shall be in substantially the following form:

“In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any notice of
default and a copy of any notice of sale under the deed of trust (or mortgage) recorded ______, ____,
in Book _____ page ____ records of ____ County, (or filed for record with recorder’s serial number
____, _______County) California, executed by ____ as trustor (or mortgagor) in which ________ is
named as
beneficiary (or mortgagee) and ______________ as trustee be mailed to _________________ at
___________________________.
Name Address
NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the address
contained in this recorded request. If your address changes, a new request must be
recorded.
Signature _________________”

Upon the filing for record of the request, the recorder shall
index in the general index of grantors the names of the trustors (or mortgagor) recited therein and the
names of persons requesting copies.
(b) The mortgagee, trustee, or other person authorized to record the notice of default or the notice of
sale shall do each of the following:
(1) Within 10 business days following recordation of the notice of default, deposit or cause to be
deposited in the United States mail an envelope, sent by registered or certified mail with postage
prepaid, containing a copy of the notice with the recording date shown thereon, addressed to each
person whose name and address are set forth in a duly recorded request therefor, directed to the
address designated in the request and to each trustor or mortgagor at his or her last known address if
different than the address specified in the deed of trust or mortgage with power of sale.
(2) At least 20 days before the date of sale, deposit or cause to
be deposited in the United States mail an envelope, sent by
registered or certified mail with postage prepaid, containing a copy of the notice of the time and place
of sale, addressed to each person whose name and address are set forth in a duly recorded request
therefor, directed to the address designated in the request and to each trustor or mortgagor at his or her
last known address if different than the address specified in the deed of trust or mortgage with power
of sale.
(3) As used in paragraphs (1) and (2), the “last known address” of each trustor or mortgagor means the
last business or residence physical address actually known by the mortgagee, beneficiary, trustee, or
other person authorized to record the notice of default.
For the purposes of this subdivision, an address is “actually known” if it is contained in the original
deed of trust or mortgage, or in any subsequent written notification of a change of physical address
from the trustor or mortgagor pursuant to the deed of trust or mortgage. For the purposes of this
subdivision, “physical address” does not include an e-mail or any form of electronic address for a
trustor or mortgagor. The beneficiary shall inform the trustee of the
trustor’s last address actually known by the beneficiary. However, the trustee shall incur no liability for
failing to send any notice to the last address unless the trustee has actual knowledge of it.
(4) A “person authorized to record the notice of default or the
notice of sale” shall include an agent for the mortgagee or
beneficiary, an agent of the named trustee, any person designated in an executed substitution of
trustee, or an agent of that substituted trustee.
(c) The mortgagee, trustee, or other person authorized to record the notice of default or the notice of
sale shall do the following:
(1) Within one month following recordation of the notice of
default, deposit or cause to be deposited in the United States mail an envelope, sent by registered or
certified mail with postage prepaid, containing a copy of the notice with the recording date shown
thereon, addressed to each person set forth in paragraph (2), provided that the estate or interest of any
person entitled to receive notice under this subdivision is acquired by an instrument sufficient to
impart constructive notice of the estate or interest in the land or portion thereof that is subject to the
deed of trust or mortgage being foreclosed, and provided the instrument is recorded in
the office of the county recorder so as to impart that constructive notice prior to the recording date of
the notice of default and provided the instrument as so recorded sets forth a mailing address that the
county recorder shall use, as instructed within the instrument, for the return of the instrument after
recording, and which address shall be the address used for the purposes of mailing notices herein.
(2) The persons to whom notice shall be mailed under this
subdivision are:
(A) The successor in interest, as of the recording date of the
notice of default, of the estate or interest or any portion thereof
of the trustor or mortgagor of the deed of trust or mortgage being foreclosed.
(B) The beneficiary or mortgagee of any deed of trust or mortgage recorded subsequent to the deed of
trust or mortgage being foreclosed, or recorded prior to or concurrently with the deed of trust or
mortgage being foreclosed but subject to a recorded agreement or a recorded statement of
subordination to the deed of trust or mortgage being foreclosed.
(C) The assignee of any interest of the beneficiary or mortgagee described in subparagraph (B), as of the
recording date of the notice of default.
(D) The vendee of any contract of sale, or the lessee of any
lease, of the estate or interest being foreclosed that is recorded
subsequent to the deed of trust or mortgage being foreclosed, or recorded prior to or concurrently with
the deed of trust or mortgage being foreclosed but subject to a recorded agreement or statement of
subordination to the deed of trust or mortgage being foreclosed.
(E) The successor in interest to the vendee or lessee described in subparagraph (D), as of the
recording date of the notice of default.
(F) The office of the Controller, Sacramento, California, where,
as of the recording date of the notice of default, a “Notice of Lien for Postponed Property Taxes” has
been recorded against the real property to which the notice of default applies.
(3) At least 20 days before the date of sale, deposit or cause to
be deposited in the United States mail an envelope, sent by
registered or certified mail with postage prepaid, containing a copy of the notice of the time and place
of sale addressed to each person to whom a copy of the notice of default is to be mailed as provided in
paragraphs (1) and (2), and addressed to the office of any state taxing agency, Sacramento, California,
that has recorded, subsequent to the deed of trust or mortgage being foreclosed, a notice of tax lien
prior to the recording date of the notice of default against the real property to which the notice of default
applies.
(4) Provide a copy of the notice of sale to the Internal Revenue Service, in accordance with Section
7425 of the Internal Revenue Code and any applicable federal regulation, if a “Notice of Federal Tax
Lien under Internal Revenue Laws” has been recorded, subsequent to the deed of trust or mortgage
being foreclosed, against the real property to which the notice of sale applies. The failure to provide the
Internal Revenue Service with a copy of the notice of sale pursuant to this paragraph shall be sufficient
cause to rescind the
trustee’s sale and invalidate the trustee’s deed, at the option of
either the successful bidder at the trustee’s sale or the trustee,
and in either case with the consent of the beneficiary. Any option to rescind the trustee’s sale pursuant
to this paragraph shall be exercised prior to any transfer of the property by the successful bidder to a
bona fide purchaser for value. A rescission of the trustee’s sale pursuant to this paragraph may be
recorded in a notice of rescission pursuant to Section 1058.5.
(5) The mailing of notices in the manner set forth in paragraph
(1) shall not impose upon any licensed attorney, agent, or employee of any person entitled to receive
notices as herein set forth any duty to communicate the notice to the entitled person from the fact that
the mailing address used by the county recorder is the address of the attorney, agent, or employee.
(d) Any deed of trust or mortgage with power of sale hereafter
executed upon real property or an estate for years therein may
contain a request that a copy of any notice of default and a copy of any notice of sale thereunder shall
be mailed to any person or party thereto at the address of the person given therein, and a copy of any
notice of default and of any notice of sale shall be mailed to each of these at the same time and in the
same manner required as though a separate request therefor had been filed by each of these persons
as herein authorized. If any deed of trust or mortgage with power of
sale executed after September 19, 1939, except a deed of trust or mortgage of any of the classes
excepted from the provisions of Section 2924, does not contain a mailing address of the trustor or
mortgagor therein named, and if no request for special notice by the trustor or mortgagor in
substantially the form set forth in this section has subsequently been recorded, a copy of the notice of
default shall be published once a week for at least four weeks in a newspaper of general circulation in
the county in which the property is situated, the publication to commence within 10 business days after
the filing of the notice of default. In lieu of publication, a copy of the notice of default may be delivered
personally to the trustor or mortgagor within the 10 business days or at any time before publication is
completed, or by posting the notice of default in a conspicuous place on the property and mailing the
notice to the last known address of the trustor or mortgagor.
(e) Any person required to mail a copy of a notice of default or
notice of sale to each trustor or mortgagor pursuant to subdivision (b) or (c) by registered or certified
mail shall simultaneously cause to be deposited in the United States mail, with postage prepaid and
mailed by first-class mail, an envelope containing an additional copy of the required notice addressed
to each trustor or mortgagor at the same address to which the notice is sent by registered or certified
mail pursuant to subdivision (b) or (c). The person shall execute and retain an affidavit identifying the
notice mailed, showing the name
and residence or business address of that person, that he or she is over the age of 18 years, the date
of deposit in the mail, the name and address of the trustor or mortgagor to whom sent, and that the
envelope was sealed and deposited in the mail with postage fully prepaid. In the absence of fraud, the
affidavit required by this subdivision shall establish a conclusive presumption of mailing.
(f) With respect to separate interests governed by an association, as defined in subdivision (a) of
Section 1351, the association may cause to be filed in the office of the recorder in the county in which
the separate interests are situated a request that a mortgagee, trustee, or other person authorized to
record a notice of default regarding any of those separate interests mail to the association a copy of any
trustee’s deed upon sale concerning a separate interest. The request shall include a legal description
or the assessor’s parcel number of the separate interests. A request recorded pursuant to this
subdivision shall include the name and address of the association and a statement that it is a
homeowners’ association. Subsequent requests of an association shall supersede prior requests. A
request pursuant to this subdivision shall be recorded before the filing of a notice of default. The
mortgagee, trustee, or other authorized person shall mail the requested information to the association
within 15 business days following the date the trustee’s deed is recorded. Failure to mail the request,
pursuant to this
subdivision, shall not affect the title to real property.
(g) No request for a copy of any notice filed for record pursuant to this section, no statement or
allegation in the request, and no record thereof shall affect the title to real property or be deemed notice
to any person that any person requesting copies of notice has or claims any right, title, or interest in, or
lien or charge upon the property described in the deed of trust or mortgage referred to therein.
(h) “Business day,” as used in this section, has the meaning
specified in Section 9.

Reinstatement After Default in Payment – Notice
2924c. (a) (1) Whenever all or a portion of the principal sum of
any obligation secured by deed of trust or mortgage on real property or an estate for years therein
hereafter executed has, prior to the maturity date fixed in that obligation, become due or been declared
due by reason of default in payment of interest or of any installment of principal, or by reason of failure
of trustor or mortgagor to pay, in accordance with the terms of that obligation or of the deed of trust or
mortgage, taxes, assessments, premiums for insurance, or advances made by beneficiary or
mortgagee in accordance with the
terms of that obligation or of the deed of trust or mortgage, the
trustor or mortgagor or his or her successor in interest in the
mortgaged or trust property or any part thereof, or any beneficiary under a subordinate deed of trust or
any other person having a subordinate lien or encumbrance of record thereon, at any time within the
period specified in subdivision (e), if the power of sale therein is to be exercised, or, otherwise at any
time prior to entry of the decree of foreclosure, may pay to the beneficiary or the mortgagee or their
successors in interest, respectively, the entire amount due, at the time payment is tendered, with
respect to (A) all amounts of principal, interest, taxes, assessments, insurance premiums, or advances
actually known by the beneficiary to be, and
that are, in default and shown in the notice of default, under the
terms of the deed of trust or mortgage and the obligation secured thereby, (B) all amounts in default on
recurring obligations not shown in the notice of default, and (C) all reasonable costs and expenses,
subject to subdivision (c), which are actually incurred in enforcing the terms of the obligation, deed of
trust, or mortgage, and trustee’s or attorney’s fees, subject to subdivision (d), other than the portion of
principal as would not then be due had no default
occurred, and thereby cure the default theretofore existing, and
thereupon, all proceedings theretofore had or instituted shall be dismissed or discontinued and the
obligation and deed of trust or mortgage shall be reinstated and shall be and remain in force and effect,
the same as if the acceleration had not occurred. This section does not apply to bonds or other
evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations
or made by a public utility subject to the Public Utilities Code. For the purposes of this subdivision, the
term “recurring obligation” means all amounts of principal and interest on the loan, or rents, subject to
the deed of trust or mortgage in default due after the notice of default is recorded; all amounts of
principal and interest or rents advanced on senior liens or leaseholds which are advanced after the
recordation of the notice of
default; and payments of taxes, assessments, and hazard insurance advanced after recordation of the
notice of default. Where the beneficiary or mortgagee has made no advances on defaults which would
constitute recurring obligations, the beneficiary or mortgagee may require the trustor or mortgagor to
provide reliable written evidence that the amounts have been paid prior to reinstatement.
(2) If the trustor, mortgagor, or other person authorized to cure the default pursuant to this subdivision
does cure the default, the beneficiary or mortgagee or the agent for the beneficiary or mortgagee shall,
within 21 days following the reinstatement, execute and deliver to the trustee a notice of rescission
which rescinds the declaration of default and demand for sale and advises the trustee of the date of
reinstatement. The trustee shall cause the notice of
rescission to be recorded within 30 days of receipt of the notice of rescission and of all allowable fees
and costs.
No charge, except for the recording fee, shall be made against the trustor or mortgagor for the
execution and recordation of the notice which rescinds the declaration of default and demand for sale.
(b) (1) The notice, of any default described in this section,
recorded pursuant to Section 2924, and mailed to any person pursuant to Section 2924b, shall begin
with the following statement, printed or typed thereon:
“IMPORTANT NOTICE [14-point boldface type if printed or in
capital letters if typed]
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT MAY
BE SOLD WITHOUT ANY COURT ACTION, [14-point boldface type if printed or in capital letters if typed]
and you may have the
legal right to bring your account in good standing by paying all of your past due payments plus permitted
costs and expenses within the time permitted by law for reinstatement of your account, which is
normally five business days prior to the date set for the sale of your property. No sale date may be set
until three months from the date this notice of default may be recorded (which date of recordation
appears on this notice).

This amount is ____________ as of ______________ (Date)
and will increase until your account becomes current.

While your property is in foreclosure, you still must pay other
obligations (such as insurance and taxes) required by your note and deed of trust or mortgage. If you
fail to make future payments on the loan, pay taxes on the property, provide insurance on the property,
or pay other obligations as required in the note and deed of trust or mortgage, the beneficiary or
mortgagee may insist that you do so in order to reinstate your account in good standing. In addition, the
beneficiary or mortgagee may require as a condition to reinstatement
that you provide reliable written evidence that you paid all senior liens, property taxes, and hazard
insurance premiums.
Upon your written request, the beneficiary or mortgagee will give you a written itemization of the entire
amount you must pay. You may not have to pay the entire unpaid portion of your account, even though
full payment was demanded, but you must pay all amounts in default at the time payment is made.
However, you and your beneficiary or mortgagee may mutually agree in writing prior to the time the
notice of sale is posted (which may not be earlier than the end of the three-month period stated above)
to, among other things, (1) provide additional time in which to cure the default by transfer
of the property or otherwise; or (2) establish a schedule of payments in order to cure your default; or
both (1) and (2).
Following the expiration of the time period referred to in the
first paragraph of this notice, unless the obligation being
foreclosed upon or a separate written agreement between you and your creditor permits a longer
period, you have only the legal right to stop the sale of your property by paying the entire amount
demanded by your creditor.
To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your
property is in foreclosure for any other reason, contact:

____________________________________
(Name of beneficiary or mortgagee)
____________________________________
(Mailing address)
____________________________________
(Telephone)

If you have any questions, you should contact a lawyer or the
governmental agency which may have insured your loan.
Notwithstanding the fact that your property is in foreclosure, you may offer your property for sale,
provided the sale is concluded prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION. [14-point boldface
type if printed or in capital letters if typed]”

Unless otherwise specified, the notice, if printed, shall appear
in at least 12-point boldface type.
If the obligation secured by the deed of trust or mortgage is a
contract or agreement described in paragraph (1) or (4) of
subdivision (a) of Section 1632, the notice required herein shall be in Spanish if the trustor requested a
Spanish language translation of the contract or agreement pursuant to Section 1632. If the obligation
secured by the deed of trust or mortgage is contained in a home improvement contract, as defined in
Sections 7151.2 and 7159 of the Business and Professions Code, which is subject to Title 2
(commencing with Section 1801), the seller shall specify on the contract whether or not the contract
was principally negotiated in Spanish and if the contract was principally negotiated in Spanish, the
notice required herein shall be in Spanish. No assignee of the
contract or person authorized to record the notice of default shall incur any obligation or liability for
failing to mail a notice in
Spanish unless Spanish is specified in the contract or the assignee or person has actual knowledge
that the secured obligation was principally negotiated in Spanish. Unless specified in writing to the
contrary, a copy of the notice required by subdivision (c) of Section 2924b shall be in English.
(2) Any failure to comply with the provisions of this subdivision shall not affect the validity of a sale in
favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.
(c) Costs and expenses which may be charged pursuant to Sections 2924 to 2924i, inclusive, shall be
limited to the costs incurred for recording, mailing, including certified and express mail charges,
publishing, and posting notices required by Sections 2924 to 2924i, inclusive, postponement pursuant
to Section 2924g not to exceed fifty dollars ($50) per postponement and a fee for a trustee’s sale
guarantee or, in the event of judicial foreclosure, a litigation guarantee. For purposes of this
subdivision, a trustee or beneficiary
may purchase a trustee’s sale guarantee at a rate meeting the
standards contained in Sections 12401.1 and 12401.3 of the Insurance Code.
(d) Trustee’s or attorney’s fees which may be charged pursuant to subdivision (a), or until the notice of
sale is deposited in the mail to the trustor as provided in Section 2924b, if the sale is by power of sale
contained in the deed of trust or mortgage, or, otherwise at any time prior to the decree of foreclosure,
are hereby authorized to be in a base amount that does not exceed three hundred dollars ($300) if the
unpaid principal sum secured is one hundred fifty thousand dollars ($150,000) or less, or two hundred
fifty dollars ($250) if the unpaid principal sum secured exceeds one hundred fifty
thousand dollars ($150,000), plus one-half of 1 percent of the unpaid principal sum secured exceeding
fifty thousand dollars ($50,000) up to and including one hundred fifty thousand dollars ($150,000), plus
one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty
thousand dollars ($150,000) up to and including five hundred thousand dollars ($500,000), plus one-
eighth of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand
dollars ($500,000). Any
charge for trustee’s or attorney’s fees authorized by this
subdivision shall be conclusively presumed to be lawful and valid where the charge does not exceed
the amounts authorized herein. For purposes of this subdivision, the unpaid principal sum secured
shall determined as of the date the notice of default is recorded.
(e) Reinstatement of a monetary default under the terms of an
obligation secured by a deed of trust, or mortgage may be made at any time within the period
commencing with the date of recordation of the notice of default until five business days prior to the
date of sale set forth in the initial recorded notice of sale.
In the event the sale does not take place on the date set forth in the initial recorded notice of sale or a
subsequent recorded notice of sale is required to be given, the right of reinstatement shall be revived
as of the date of recordation of the subsequent notice of sale, and shall continue from that date until
five business days prior to the date of sale set forth in the subsequently recorded notice of sale.
In the event the date of sale is postponed on the date of sale set forth in either an initial or any
subsequent notice of sale, or is postponed on the date declared for sale at an immediately preceding
postponement of sale, and, the postponement is for a period which exceeds five business days from
the date set forth in the notice of sale, or declared at the time of postponement, then the right of
reinstatement is revived as of the date of postponement and shall continue from that date until five
business days prior to the date of sale declared at the time of the postponement.
Nothing contained herein shall give rise to a right of
reinstatement during the period of five business days prior to the date of sale, whether the date of sale
is noticed in a notice of sale or declared at a postponement of sale.
Pursuant to the terms of this subdivision, no beneficiary,
trustee, mortgagee, or their agents or successors shall be liable in any manner to a trustor, mortgagor,
their agents or successors or any beneficiary under a subordinate deed of trust or mortgage or any
other person having a subordinate lien or encumbrance of record thereon for the failure to allow a
reinstatement of the obligation secured by a deed of trust or mortgage during the period of five
business days prior to the sale of the security property, and no such right of reinstatement during this
period is created by this section. Any right of reinstatement created by this section is terminated five
business days prior to the date of sale set forth in the initial date of sale, and is revived only as
prescribed herein and only as of the date set forth herein.
As used in this subdivision, the term “business day” has the same meaning as specified in Section 9.

Payment of Costs and Expenses — Payment of Trustee’s and Attorney’s Fees —
Prohibition Against Rebate or Kickback
2924d. (a) Commencing with the date that the notice of sale is
deposited in the mail, as provided in Section 2924b, and until the property is sold pursuant to the power
of sale contained in the mortgage or deed of trust, a beneficiary, trustee, mortgagee, or his
or her agent or successor in interest, may demand and receive from a
trustor, mortgagor, or his or her agent or successor in interest, or
any beneficiary under a subordinate deed of trust, or any other
person having a subordinate lien or encumbrance of record those
reasonable costs and expenses, to the extent allowed by subdivision
(c) of Section 2924c, which are actually incurred in enforcing the
terms of the obligation and trustee’s or attorney’s fees which are
hereby authorized to be in a base amount which does not exceed four
hundred twenty-five dollars ($425) if the unpaid principal sum
secured is one hundred fifty thousand dollars ($150,000) or less, or
three hundred sixty dollars ($360) if the unpaid principal sum
secured exceeds one hundred fifty thousand dollars ($150,000), plus 1
percent of any portion of the unpaid principal sum secured exceeding
fifty thousand dollars ($50,000) up to and including one hundred
fifty thousand dollars ($150,000), plus one-half of 1 percent of any
portion of the unpaid principal sum secured exceeding one hundred
fifty thousand dollars ($150,000) up to and including five hundred
thousand dollars ($500,000), plus one-quarter of 1 percent of any
portion of the unpaid principal sum secured exceeding five hundred
thousand dollars ($500,000). For purposes of this subdivision, the
unpaid principal sum secured shall be determined as of the date the
notice of default is recorded. Any charge for trustee’s or attorney’s
fees authorized by this subdivision shall be conclusively presumed
to be lawful and valid where that charge does not exceed the amounts
authorized herein. Any charge for trustee’s or attorney’s fees made
pursuant to this subdivision shall be in lieu of and not in addition
to those charges authorized by subdivision (d) of Section 2924c.
(b) Upon the sale of property pursuant to a power of sale, a
trustee, or his or her agent or successor in interest, may demand and
receive from a beneficiary, or his or her agent or successor in
interest, or may deduct from the proceeds of the sale, those
reasonable costs and expenses, to the extent allowed by subdivision
(c) of Section 2924c, which are actually incurred in enforcing the
terms of the obligation and trustee’s or attorney’s fees which are
hereby authorized to be in an amount which does not exceed four
hundred twenty-five dollars ($425) or one percent of the unpaid
principal sum secured, whichever is greater. For purposes of this
subdivision, the unpaid principal sum secured shall be determined as
of the date the notice of default is recorded. Any charge for trustee’
s or attorney’s fees authorized by this subdivision shall be
conclusively presumed to be lawful and valid where that charge does
not exceed the amount authorized herein. Any charges for trustee’s or
attorney’s fees made pursuant to this subdivision shall be in lieu
of and not in addition to those charges authorized by subdivision (a)
of this section and subdivision (d) of Section 2924c.
(c) (1) No person shall pay or offer to pay or collect any rebate
or kickback for the referral of business involving the performance of
any act required by this article.
(2) Any person who violates this subdivision shall be liable to
the trustor for three times the amount of any rebate or kickback,
plus reasonable attorney’s fees and costs, in addition to any other
remedies provided by law.
(3) No violation of this subdivision shall affect the validity of
a sale in favor of a bona fide purchaser or the rights of an
encumbrancer for value without notice.
(d) It shall not be unlawful for a trustee to pay or offer to pay
a fee to an agent or subagent of the trustee for work performed by
the agent or subagent in discharging the trustee’s obligations under
the terms of the deed of trust. Any payment of a fee by a trustee to
an agent or subagent of the trustee for work performed by the agent
or subagent in discharging the trustee’s obligations under the terms
of the deed of trust shall be conclusively presumed to be lawful and
valid if the fee, when combined with other fees of the trustee, does
not exceed in the aggregate the trustee’s fee authorized by
subdivision (d) of Section 2924c or subdivision (a) or (b) of this
section.
(e) When a court issues a decree of foreclosure, it shall have
discretion to award attorney’s fees, costs, and expenses as are
reasonable, if provided for in the note, deed of trust, or mortgage,
pursuant to Section 580c of the Code of Civil Procedure.

Request for Written Notice of Delinquencies — Requirements
2924e. (a) The beneficiary or mortgagee of any deed of trust or
mortgage on real property either containing one to four residential
units or given to secure an original obligation not to exceed three
hundred thousand dollars ($300,000) may, with the written consent of
the trustor or mortgagor that is either effected through a signed and
dated agreement which shall be separate from other loan and security
documents or disclosed to the trustor or mortgagor in at least
10-point type, submit a written request by certified mail to the
beneficiary or mortgagee of any lien which is senior to the lien of
the requester, for written notice of any or all delinquencies of four
months or more, in payments of principal or interest on any
obligation secured by that senior lien notwithstanding that the loan
secured by the lien of the requester is not then in default as to
payments of principal or interest.
The request shall be sent to the beneficiary or mortgagee, or
agent which it might designate for the purpose of receiving loan
payments, at the address specified for the receipt of these payments,
if known, or, if not known, at the address shown on the recorded
deed of trust or mortgage.
(b) The request for notice shall identify the ownership or
security interest of the requester, the date on which the interest of
the requester will terminate as evidenced by the maturity date of
the note of the trustor or mortgagor in favor of the requester, the
name of the trustor or mortgagor and the name of the current owner of
the security property if different from the trustor or mortgagor,
the street address or other description of the security property, the
loan number (if available to the requester) of the loan secured by
the senior lien, the name and address to which notice is to be sent,
and shall include or be accompanied by the signed written consent of
the trustor or mortgagor, and a fee of forty dollars ($40). For
obligations secured by residential properties, the request shall
remain valid until withdrawn in writing and shall be applicable to
all delinquencies as provided in this section, which occur prior to
the date on which the interest of the requester will terminate as
specified in the request or the expiration date, as appropriate. For
obligations secured by nonresidential properties, the request shall
remain valid until withdrawn in writing and shall be applicable to
all delinquencies as provided in this section, which occur prior to
the date on which the interest of the requester will terminate as
specified in the request or the expiration date, as appropriate. The
beneficiary or mortgagee of obligations secured by nonresidential
properties that have sent five or more notices prior to the
expiration of the effective period of the request may charge a fee up
to fifteen dollars ($15) for each subsequent notice. A request for
notice shall be effective for five years from the mailing of the
request or the recording of that request, whichever occurs later, and
may be renewed within six months prior to its expiration date by
sending the beneficiary or mortgagee, or agent, as the case may be,
at the address to which original requests for notice are to be sent,
a copy of the earlier request for notice together with a signed
statement that the request is renewed and a renewal fee of fifteen
dollars ($15). Upon timely submittal of a renewal request for notice,
the effectiveness of the original request is continued for five
years from the time when it would otherwise have lapsed. Succeeding
renewal requests may be submitted in the same manner. The request for
notice and renewals thereof shall be recorded in the office of the
county recorder of the county in which the security real property is
situated. The rights and obligations specified in this section shall
inure to the benefit of, or pass to, as the case may be, successors
in interest of parties specified in this section. Any successor in
interest of a party entitled to notice under this section shall file
a request for that notice with any beneficiary or mortgagee of the
senior lien and shall pay a processing fee of fifteen dollars ($15).
No new written consent shall be required from the trustor or
mortgagor.
(c) Unless the delinquency has been cured, within 15 days
following the end of four months from any delinquency in payments of
principal or interest on any obligation secured by the senior lien
which delinquency exists or occurs on or after 10 days from the
mailing of the request for notice or the recording of that request,
whichever occurs later, the beneficiary or mortgagee shall give
written notice to the requester of the fact of any delinquency and
the amount thereof.
The notice shall be given by personal service, or by deposit in
the mail, first-class postage paid. Following the recording of any
notice of default pursuant to Section 2924 with respect to the same
delinquency, no notice or further notice shall be required pursuant
to this section.
(d) If the beneficiary or mortgagee of any such senior lien fails
to give notice to the requester as required in subdivision (c), and a
subsequent foreclosure or trustee’s sale of the security property
occurs, the beneficiary or mortgagee shall be liable to the requester
for any monetary damage due to the failure to provide notice within
the time period specified in subdivision (c) which the requester has
sustained from the date on which notice should have been given to the
earlier of the date on which the notice is given or the date of the
recording of the notice of default under Section 2924, and shall also
forfeit to the requester the sum of three hundred dollars ($300). A
showing by the beneficiary or mortgagee by a preponderance of the
evidence that the failure to provide timely notice as required by
subdivision (c) resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such error
shall be a defense to any liability for that failure.
(e) If any beneficiary or mortgagee, or agent which it had
designated for the purpose of receiving loan payments, has been
succeeded in interest by any other person, any request for notice
received pursuant to this section shall be transmitted promptly to
that person.
(f) Any failure to comply with the provisions of this section
shall not affect the validity of a sale in favor of a bona fide
purchaser or the rights of an encumbrancer for value and without
notice.
(g) Upon satisfaction of an obligation secured by a junior lien
with respect to which a notice request was made pursuant to this
section, the beneficiary or mortgagee that made the request shall
communicate that fact in writing to the senior lienholder to whom the
request was made. The communication shall specify that provision of
notice pursuant to the prior request under this section is no longer
required.

Notice of Sale of Property under Power of Sale in Deed of Trust or Mortgage
2924f. (a) As used in this section and Sections 2924g and 2924h,
“property” means real property or a leasehold estate therein, and
“calendar week” means Monday through Saturday, inclusive.
(b) (1) Except as provided in subdivision (c), before any sale of
property can be made under the power of sale contained in any deed of
trust or mortgage, or any resale resulting from a rescission for a
failure of consideration pursuant to subdivision (c) of Section
2924h, notice of the sale thereof shall be given by posting a written
notice of the time of sale and of the street address and the
specific place at the street address where the sale will be held, and
describing the property to be sold, at least 20 days before the date
of sale in one public place in the city where the property is to be
sold, if the property is to be sold in a city, or, if not, then in
one public place in the judicial district in which the property is to
be sold, and publishing a copy once a week for three consecutive
calendar weeks, the first publication to be at least 20 days before
the date of sale, in a newspaper of general circulation published in
the city in which the property or some part thereof is situated, if
any part thereof is situated in a city, if not, then in a newspaper
of general circulation published in the judicial district in which
the property or some part thereof is situated, or in case no
newspaper of general circulation is published in the city or judicial
district, as the case may be, in a newspaper of general circulation
published in the county in which the property or some part thereof is
situated, or in case no newspaper of general circulation is
published in the city or judicial district or county, as the case may
be, in a newspaper of general circulation published in the county in
this state that (A) is contiguous to the county in which the
property or some part thereof is situated and (B) has, by comparison
with all similarly contiguous counties, the highest population based
upon total county population as determined by the most recent federal
decennial census published by the Bureau of the Census. A copy of
the notice of sale shall also be posted in a conspicuous place on the
property to be sold at least 20 days before the date of sale, where
possible and where not restricted for any reason. If the property is
a single-family residence the posting shall be on a door of the
residence, but, if not possible or restricted, then the notice shall
be posted in a conspicuous place on the property; however, if access
is denied because a common entrance to the property is restricted by
a guard gate or similar impediment, the property may be posted at
that guard gate or similar impediment to any development community.
Additionally, the notice of sale shall conform to the minimum
requirements of Section 6043 of the Government Code and be recorded
with the county recorder of the county in which the property or some
part thereof is situated at least 20 days prior to the date of sale.
The notice of sale shall contain the name, street address in this
state, which may reflect an agent of the trustee, and either a
toll-free telephone number or telephone number in this state of the
trustee, and the name of the original trustor, and also shall contain
the statement required by paragraph (3) of subdivision (c). In
addition to any other description of the property, the notice shall
describe the property by giving its street address, if any, or other
common designation, if any, and a county assessor’s parcel number;
but if the property has no street address or other common
designation, the notice shall contain a legal description of the
property, the name and address of the beneficiary at whose request
the sale is to be conducted, and a statement that directions may be
obtained pursuant to a written request submitted to the beneficiary
within 10 days from the first publication of the notice. Directions
shall be deemed reasonably sufficient to locate the property if
information as to the location of the property is given by reference
to the direction and approximate distance from the nearest
crossroads, frontage road, or access road. If a legal description or
a county assessor’s parcel number and either a street address or
another common designation of the property is given, the validity of
the notice and the validity of the sale shall not be affected by the
fact that the street address, other common designation, name and
address of the beneficiary, or the directions obtained therefrom are
erroneous or that the street address, other common designation, name
and address of the beneficiary, or directions obtained therefrom are
omitted. The term “newspaper of general circulation,” as used in this
section, has the same meaning as defined in Article 1 (commencing
with Section 6000) of Chapter 1 of Division 7 of Title 1 of the
Government Code.
The notice of sale shall contain a statement of the total amount
of the unpaid balance of the obligation secured by the property to be
sold and reasonably estimated costs, expenses, advances at the time
of the initial publication of the notice of sale, and, if republished
pursuant to a cancellation of a cash equivalent pursuant to
subdivision (d) of Section 2924h, a reference of that fact; provided,
that the trustee shall incur no liability for any good faith error
in stating the proper amount, including any amount provided in good
faith by or on behalf of the beneficiary. An inaccurate statement of
this amount shall not affect the validity of any sale to a bona fide
purchaser for value, nor shall the failure to post the notice of sale
on a door as provided by this subdivision affect the validity of any
sale to a bona fide purchaser for value.
(2) If the sale of the property is to be a unified sale as
provided in subparagraph (B) of paragraph (1) of subdivision (a) of
Section 9604 of the Commercial Code, the notice of sale shall also
contain a description of the personal property or fixtures to be
sold. In the case where it is contemplated that all of the personal
property or fixtures are to be sold, the description in the notice of
the personal property or fixtures shall be sufficient if it is the
same as the description of the personal property or fixtures
contained in the agreement creating the security interest in or
encumbrance on the personal property or fixtures or the filed
financing statement relating to the personal property or fixtures. In
all other cases, the description in the notice shall be sufficient
if it would be a sufficient description of the personal property or
fixtures under Section 9108 of the Commercial Code. Inclusion of a
reference to or a description of personal property or fixtures in a
notice of sale hereunder shall not constitute an election by the
secured party to conduct a unified sale pursuant to subparagraph (B)
of paragraph (1) of subdivision (a) of Section 9604 of the Commercial
Code, shall not obligate the secured party to conduct a unified sale
pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of
Section 9604 of the Commercial Code, and in no way shall render
defective or noncomplying either that notice or a sale pursuant to
that notice by reason of the fact that the sale includes none or less
than all of the personal property or fixtures referred to or
described in the notice. This paragraph shall not otherwise affect
the obligations or duties of a secured party under the Commercial
Code.
(c) (1) This subdivision applies only to deeds of trust or
mortgages which contain a power of sale and which are secured by real
property containing a single-family, owner-occupied residence, where
the obligation secured by the deed of trust or mortgage is contained
in a contract for goods or services subject to the provisions of the
Unruh Act (Chapter 1 (commencing with Section 1801) of Title 2 of
Part 4 of Division 3).
(2) Except as otherwise expressly set forth in this subdivision,
all other provisions of law relating to the exercise of a power of
sale shall govern the exercise of a power of sale contained in a deed
of trust or mortgage described in paragraph (1).
(3) If any default of the obligation secured by a deed of trust or
mortgage described in paragraph (1) has not been cured within 30
days after the recordation of the notice of default, the trustee or
mortgagee shall mail to the trustor or mortgagor, at his or her last
known address, a copy of the following statement:

YOU ARE IN DEFAULT UNDER A
_______________________________________________,
(Deed of trust or mortgage)
DATED ____. UNLESS YOU TAKE ACTION TO PROTECT
YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.
IF
YOU NEED AN EXPLANATION OF THE NATURE OF THE
PROCEEDING AGAINST YOU, YOU SHOULD CONTACT A
LAWYER.

(4) All sales of real property pursuant to a power of sale
contained in any deed of trust or mortgage described in paragraph (1)
shall be held in the county where the residence is located and shall
be made to the person making the highest offer. The trustee may
receive offers during the 10-day period immediately prior to the date
of sale and if any offer is accepted in writing by both the trustor
or mortgagor and the beneficiary or mortgagee prior to the time set
for sale, the sale shall be postponed to a date certain and prior to
which the property may be conveyed by the trustor to the person
making the offer according to its terms. The offer is revocable until
accepted. The performance of the offer, following acceptance,
according to its terms, by a conveyance of the property to the
offeror, shall operate to terminate any further proceeding under the
notice of sale and it shall be deemed revoked.
(5) In addition to the trustee fee pursuant to Section 2924c, the
trustee or mortgagee pursuant to a deed of trust or mortgage subject
to this subdivision shall be entitled to charge an additional fee of
fifty dollars ($50).
(6) This subdivision applies only to property on which notices of
default were filed on or after the effective date of this
subdivision.

Procedure for Sale of Property — Postponement of Sale
2924g. (a) All sales of property under the power of sale contained
in any deed of trust or mortgage shall be held in the county where
the property or some part thereof is situated, and shall be made at
auction, to the highest bidder, between the hours of 9 a.m. and 5
p.m. on any business day, Monday through Friday.
The sale shall commence at the time and location specified in the
notice of sale. Any postponement shall be announced at the time and
location specified in the notice of sale for commencement of the sale
or pursuant to paragraph (1) of subdivision (c).
If the sale of more than one parcel of real property has been
scheduled for the same time and location by the same trustee, (1) any
postponement of any of the sales shall be announced at the time
published in the notice of sale, (2) the first sale shall commence at
the time published in the notice of sale or immediately after the
announcement of any postponement, and (3) each subsequent sale shall
take place as soon as possible after the preceding sale has been
completed.
(b) When the property consists of several known lots or parcels,
they shall be sold separately unless the deed of trust or mortgage
provides otherwise. When a portion of the property is claimed by a
third person, who requires it to be sold separately, the portion
subject to the claim may be thus sold. The trustor, if present at the
sale, may also, unless the deed of trust or mortgage otherwise
provides, direct the order in which property shall be sold, when the
property consists of several known lots or parcels which may be sold
to advantage separately, and the trustee shall follow that direction.
After sufficient property has been sold to satisfy the indebtedness,
no more can be sold.
If the property under power of sale is in two or more counties,
the public auction sale of all of the property under the power of
sale may take place in any one of the counties where the property or
a portion thereof is located.
(c) (1) There may be a postponement or postponements of the sale
proceedings, including a postponement upon instruction by the
beneficiary to the trustee that the sale proceedings be postponed, at
any time prior to the completion of the sale for any period of time
not to exceed a total of 365 days from the date set forth in the
notice of sale. The trustee shall postpone the sale in accordance
with any of the following:
(A) Upon the order of any court of competent jurisdiction.
(B) If stayed by operation of law.
(C) By mutual agreement, whether oral or in writing, of any
trustor and any beneficiary or any mortgagor and any mortgagee.
(D) At the discretion of the trustee.
(2) In the event that the sale proceedings are postponed for a
period or periods totaling more than 365 days, the scheduling of any
further sale proceedings shall be preceded by giving a new notice of
sale in the manner prescribed in Section 2924f. New fees incurred for
the new notice of sale shall not exceed the amounts specified in
Sections 2924c and 2924d, and shall not exceed reasonable costs that
are necessary to comply with this paragraph.
(d) The notice of each postponement and the reason therefor shall
be given by public declaration by the trustee at the time and place
last appointed for sale. A public declaration of postponement shall
also set forth the new date, time, and place of sale and the place of
sale shall be the same place as originally fixed by the trustee for
the sale. No other notice of postponement need be given. However, the
sale shall be conducted no sooner than on the seventh day after the
earlier of (1) dismissal of the action or (2) expiration or
termination of the injunction, restraining order, or stay that
required postponement of the sale, whether by entry of an order by a
court of competent jurisdiction, operation of law, or otherwise,
unless the injunction, restraining order, or subsequent order
expressly directs the conduct of the sale within that seven-day
period. For purposes of this subdivision, the seven-day period shall
not include the day on which the action is dismissed, or the day on
which the injunction, restraining order, or stay expires or is
terminated. If the sale had been scheduled to occur, but this
subdivision precludes its conduct during that seven-day period, a new
notice of postponement shall be given if the sale had been scheduled
to occur during that seven-day period. The trustee shall maintain
records of each postponement and the reason therefor.
(e) Notwithstanding the time periods established under subdivision
(d), if postponement of a sale is based on a stay imposed by Title
11 of the United States Code (bankruptcy), the sale shall be
conducted no sooner than the expiration of the stay imposed by that
title and the seven-day provision of subdivision (d) shall not apply.

Trustee’s Sale — Bidding Rules
2924h. (a) Each and every bid made by a bidder at a trustee’s sale
under a power of sale contained in a deed of trust or mortgage shall
be deemed to be an irrevocable offer by that bidder to purchase the
property being sold by the trustee under the power of sale for the
amount of the bid. Any second or subsequent bid by the same bidder or
any other bidder for a higher amount shall be a cancellation of the
prior bid.
(b) At the trustee’s sale the trustee shall have the right (1) to
require every bidder to show evidence of the bidder’s ability to
deposit with the trustee the full amount of his or her final bid in
cash, a cashier’s check drawn on a state or national bank, a check
drawn by a state or federal credit union, or a check drawn by a state
or federal savings and loan association, savings association, or
savings bank specified in Section 5102 of the Financial Code and
authorized to do business in this state, or a cash equivalent which
has been designated in the notice of sale as acceptable to the
trustee prior to, and as a condition to, the recognizing of the bid,
and to conditionally accept and hold these amounts for the duration
of the sale, and (2) to require the last and highest bidder to
deposit, if not deposited previously, the full amount of the bidder’s
final bid in cash, a cashier’s check drawn on a state or national
bank, a check drawn by a state or federal credit union, or a check
drawn by a state or federal savings and loan association, savings
association, or savings bank specified in Section 5102 of the
Financial Code and authorized to do business in this state, or a cash
equivalent which has been designated in the notice of sale as
acceptable to the trustee, immediately prior to the completion of the
sale, the completion of the sale being so announced by the fall of
the hammer or in another customary manner. The present beneficiary of
the deed of trust under foreclosure shall have the right to offset
his or her bid or bids only to the extent of the total amount due the
beneficiary including the trustee’s fees and expenses.
(c) In the event the trustee accepts a check drawn by a credit
union or a savings and loan association pursuant to this subdivision
or a cash equivalent designated in the notice of sale, the trustee
may withhold the issuance of the trustee’s deed to the successful
bidder submitting the check drawn by a state or federal credit union
or savings and loan association or the cash equivalent until funds
become available to the payee or endorsee as a matter of right.
For the purposes of this subdivision, the trustee’s sale shall be
deemed final upon the acceptance of the last and highest bid, and
shall be deemed perfected as of 8 a.m. on the actual date of sale if
the trustee’s deed is recorded within 15 calendar days after the
sale, or the next business day following the 15th day if the county
recorder in which the property is located is closed on the 15th day.
However, the sale is subject to an automatic rescission for a failure
of consideration in the event the funds are not “available for
withdrawal” as defined in Section 12413.1 of the Insurance Code. The
trustee shall send a notice of rescission for a failure of
consideration to the last and highest bidder submitting the check or
alternative instrument, if the address of the last and highest bidder
is known to the trustee.
If a sale results in an automatic right of rescission for failure
of consideration pursuant to this subdivision, the interest of any
lienholder shall be reinstated in the same priority as if the
previous sale had not occurred.
(d) If the trustee has not required the last and highest bidder to
deposit the cash, a cashier’s check drawn on a state or national
bank, a check drawn by a state or federal credit union, or a check
drawn by a state or federal savings and loan association, savings
association, or savings bank specified in Section 5102 of the
Financial Code and authorized to do business in this state, or a cash
equivalent which has been designated in the notice of sale as
acceptable to the trustee in the manner set forth in paragraph (2) of
subdivision (b), the trustee shall complete the sale. If the last
and highest bidder then fails to deliver to the trustee, when
demanded, the amount of his or her final bid in cash, a cashier’s
check drawn on a state or national bank, a check drawn by a state or
federal credit union, or a check drawn by a state or federal savings
and loan association, savings association, or savings bank specified
in Section 5102 of the Financial Code and authorized to do business
in this state, or a cash equivalent which has been designated in the
notice of sale as acceptable to the trustee, that bidder shall be
liable to the trustee for all damages which the trustee may sustain
by the refusal to deliver to the trustee the amount of the final bid,
including any court costs and reasonable attorneys’ fees.
If the last and highest bidder willfully fails to deliver to the
trustee the amount of his or her final bid in cash, a cashier’s check
drawn on a state or national bank, a check drawn by a state or
federal credit union, or a check drawn by a state or federal savings
and loan association, savings association, or savings bank specified
in Section 5102 of the Financial Code and authorized to do business
in this state, or a cash equivalent which has been designated in the
notice of sale as acceptable to the trustee, or if the last and
highest bidder cancels a cashiers check drawn on a state or national
bank, a check drawn by a state or federal credit union, or a check
drawn by a state or federal savings and loan association, savings
association, or savings bank specified in Section 5102 of the
Financial Code and authorized to do business in this state, or a cash
equivalent that has been designated in the notice of sale as
acceptable to the trustee, that bidder shall be guilty of a
misdemeanor punishable by a fine of not more than two thousand five
hundred dollars ($2,500).
In the event the last and highest bidder cancels an instrument
submitted to the trustee as a cash equivalent, the trustee shall
provide a new notice of sale in the manner set forth in Section 2924f
and shall be entitled to recover the costs of the new notice of sale
as provided in Section 2924c.
(e) Any postponement or discontinuance of the sale proceedings
shall be a cancellation of the last bid.
(f) In the event that this section conflicts with any other
statute, then this section shall prevail.
(g) It shall be unlawful for any person, acting alone or in
concert with others, (1) to offer to accept or accept from another,
any consideration of any type not to bid, or (2) to fix or restrain
bidding in any manner, at a sale of property conducted pursuant to a
power of sale in a deed of trust or mortgage. However, it shall not
be unlawful for any person, including a trustee, to state that a
property subject to a recorded notice of default or subject to a sale
conducted pursuant to this chapter is being sold in an “as-is”
condition.
In addition to any other remedies, any person committing any act
declared unlawful by this subdivision or any act which would operate
as a fraud or deceit upon any beneficiary, trustor, or junior lienor
shall, upon conviction, be fined not more than ten thousand dollars
($10,000) or imprisoned in the county jail for not more than one
year, or be punished by both that fine and imprisonment.

Secured Obligations — Balloon Payments
2924i. (a) This section applies to loans secured by a deed of trust
or mortgage on real property containing one to four residential
units at least one of which at the time the loan is made is or is to
be occupied by the borrower if the loan is for a period in excess of
one year and is a balloon payment loan.
(b) This section shall not apply to (1) open end credit as defined
in Regulation Z, whether or not the transaction is otherwise subject
to Regulation Z, (2) transactions subject to Section 2956, or (3)
loans made for the principal purpose of financing the construction of
one or more residential units.
(c) At least 90 days but not more than 150 days prior to the due
date of the final payment on a loan that is subject to this section,
the holder of the loan shall deliver or mail by first-class mail,
with a certificate of mailing obtained from the United States Postal
Service, to the trustor, or his or her successor in interest, at the
last known address of that person, a written notice which shall
include all of the following:
(1) A statement of the name and address of the person to whom the
final payment is required to be paid.
(2) The date on or before which the final payment is required to
be paid.
(3) The amount of the final payment, or if the exact amount is
unknown, a good faith estimate of the amount thereof, including
unpaid principal, interest and any other charges, such amount to be
determined assuming timely payment in full of all scheduled
installments coming due between the date the notice is prepared and
the date when the final payment is due.
(4) If the borrower has a contractual right to refinance the final
payment, a statement to that effect.
If the due date of the final payment of a loan subject to this
section is extended prior to the time notice is otherwise required
under this subdivision, this notice requirement shall apply only to
the due date as extended (or as subsequently extended).
(d) For purposes of this section:
(1) A “balloon payment loan” is a loan which provides for a final
payment as originally scheduled which is more than twice the amount
of any of the immediately preceding six regularly scheduled payments
or which contains a call provision; provided, however, that if the
call provision is not exercised by the holder of the loan, the
existence of the unexercised call provision shall not cause the loan
to be deemed to be a balloon payment loan.
(2) “Call provision” means a loan contract term that provides the
holder of the loan with the right to call the loan due and payable
either after a specified period has elapsed following closing or
after a specified date.
(3) “Regulation Z” means any rule, regulation, or interpretation
promulgated by the Board of Governors of the Federal Reserve System
under the Federal Truth in Lending Act, as amended (15 U.S.C. Sec.
1601 et seq.), and any interpretation or approval thereof issued by
an official or employee of the Federal Reserve System duly authorized
by the board under the Truth in Lending Act, as amended, to issue
such interpretations or approvals.
(e) Failure to provide notice as required by subdivision (a) does
not extinguish any obligation of payment by the borrower, except that
the due date for any balloon payment shall be the date specified in
the balloon payment note, or 90 days from the date of delivery or
mailing of the notice required by subdivision (a), or the due date
specified in the notice required by subdivision (a), whichever date
is later. If the operation of this section acts to extend the term of
any note, interest shall continue to accrue for the extended term at
the contract rate and payments shall continue to be due at any
periodic interval and on any payment schedule specified in the note
and shall be credited to principal or interest under the terms of the
note. Default in any extended periodic payment shall be considered a
default under terms of the note or security instrument.
(f) (1) The validity of any credit document or of any security
document subject to the provisions of this section shall not be
invalidated solely because of the failure of any person to comply
with this section. However, any person who willfully violates any
provision of this section shall be liable in the amount of actual
damages suffered by the debtor as the proximate result of the
violation, and, if the debtor prevails in any suit to recover that
amount, for reasonable attorney’s fees.
(2) No person may be held liable in any action under this section
if it is shown by a preponderance of the evidence that the violation
was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably adopted to
avoid any such error.
(g) The provisions of this section shall apply to any note
executed on or after January 1, 1984.

Conflicting Claims to Proceeds — Trustee’s Notice; Procedure
2924j. (a) Unless an interpleader action has been filed, within 30
days of the execution of the trustee’s deed resulting from a sale in
which there are proceeds remaining after payment of the amounts
required by paragraphs (1) and (2) of subdivision (a) of Section
2924k, the trustee shall send written notice to all persons with
recorded interests in the real property as of the date immediately
prior to the trustee’s sale who would be entitled to notice pursuant
to subdivisions (b) and (c) of Section 2924b. The notice shall be
sent by first-class mail in the manner provided in paragraph (1) of
subdivision (c) of Section 2924b and inform each entitled person of
each of the following:
(1) That there has been a trustee’s sale of the described real
property.
(2) That the noticed person may have a claim to all or a portion
of the sale proceeds remaining after payment of the amounts required
by paragraphs (1) and (2) of subdivision (a) of Section 2924k.
(3) The noticed person may contact the trustee at the address
provided in the notice to pursue any potential claim.
(4) That before the trustee can act, the noticed person may be
required to present proof that the person holds the beneficial
interest in the obligation and the security interest therefor. In the
case of a promissory note secured by a deed of trust, proof that the
person holds the beneficial interest may include the original
promissory note and assignment of beneficial interests related
thereto. The noticed person shall also submit a written claim to the
trustee, executed under penalty of perjury, stating the following:
(A) The amount of the claim to the date of trustee’s sale.
(B) An itemized statement of the principal, interest, and other
charges.
(C) That claims must be received by the trustee at the address
stated in the notice no later than 30 days after the date the trustee
sends notice to the potential claimant.
(b) The trustee shall exercise due diligence to determine the
priority of the written claims received by the trustee to the trustee’
s sale surplus proceeds from those persons to whom notice was sent
pursuant to subdivision (a). In the event there is no dispute as to
the priority of the written claims submitted to the trustee, proceeds
shall be paid within 30 days after the conclusion of the notice
period. If the trustee has failed to determine the priority of
written claims within 90 days following the 30-day notice period,
then within 10 days thereafter the trustee shall deposit the funds
with the clerk of the court pursuant to subdivision (c) or file an
interpleader action pursuant to subdivision (e). Nothing in this
section shall preclude any person from pursuing other remedies or
claims as to surplus proceeds.
(c) If, after due diligence, the trustee is unable to determine
the priority of the written claims received by the trustee to the
trustee’s sale surplus of multiple persons or if the trustee
determines there is a conflict between potential claimants, the
trustee may file a declaration of the unresolved claims and deposit
with the clerk of the superior court of the county in which the sale
occurred, that portion of the sales proceeds that cannot be
distributed, less any fees charged by the clerk pursuant to this
subdivision. The declaration shall specify the date of the trustee’s
sale, a description of the property, the names and addresses of all
persons sent notice pursuant to subdivision (a), a statement that the
trustee exercised due diligence pursuant to subdivision (b), that
the trustee provided written notice as required by subdivisions (a)
and (d) and the amount of the sales proceeds deposited by the trustee
with the court. Further, the trustee shall submit a copy of the
trustee’s sales guarantee and any information relevant to the
identity, location, and priority of the potential claimants with the
court and shall file proof of service of the notice required by
subdivision (d) on all persons described in subdivision (a).
The clerk shall deposit the amount with the county treasurer or,
if a bank account has been established for moneys held in trust under
paragraph (2) of subdivision (a) of Section 77009 of the Government
Code, in that account, subject to order of the court upon the
application of any interested party. The clerk may charge a
reasonable fee for the performance of activities pursuant to this
subdivision equal to the fee for filing an interpleader action
pursuant to Chapter 5.8 (commencing with Section 70600) of Title 8 of
the Government Code. Upon deposit of that portion of the sale
proceeds that cannot be distributed by due diligence, the trustee
shall be discharged of further responsibility for the disbursement of
sale proceeds. A deposit with the clerk of the court pursuant to
this subdivision may be either for the total proceeds of the trustee’
s sale, less any fees charged by the clerk, if a conflict or
conflicts exist with respect to the total proceeds, or that portion
that cannot be distributed after due diligence, less any fees charged
by the clerk.
(d) Before the trustee deposits the funds with the clerk of the
court pursuant to subdivision (c), the trustee shall send written
notice by first-class mail, postage prepaid, to all persons described
in subdivision (a) informing them that the trustee intends to
deposit the funds with the clerk of the court and that a claim for
the funds must be filed with the court within 30 days from the date
of the notice, providing the address of the court in which the funds
were deposited, and a telephone number for obtaining further
information.
Within 90 days after deposit with the clerk, the court shall
consider all claims filed at least 15 days before the date on which
the hearing is scheduled by the court, the clerk shall serve written
notice of the hearing by first-class mail on all claimants identified
in the trustee’s declaration at the addresses specified therein.
Where the amount of the deposit is twenty-five thousand dollars
($25,000) or less, a proceeding pursuant to this section is a limited
civil case. The court shall distribute the deposited funds to any
and all claimants entitled thereto.
(e) Nothing in this section restricts the ability of a trustee to
file an interpleader action in order to resolve a dispute about the
proceeds of a trustee’s sale. Once an interpleader action has been
filed, thereafter the provisions of this section do not apply.
(f) “Due diligence,” for the purposes of this section means that
the trustee researched the written claims submitted or other evidence
of conflicts and determined that a conflict of priorities exists
between two or more claimants which the trustee is unable to resolve.
(g) To the extent required by the Unclaimed Property Law, a
trustee in possession of surplus proceeds not required to be
deposited with the court pursuant to subdivision (b) shall comply
with the Unclaimed Property Law (Chapter 7 (commencing with Section
1500) of Title 10 of Part 3 of the Code of Civil Procedure).
(h) The trustee, beneficiary, or counsel to the trustee or
beneficiary, is not liable for providing to any person who is
entitled to notice pursuant to this section, information set forth
in, or a copy of, subdivision (h) of Section 2945.3.

Trustee’s Sale – Distribution of Proceeds; Charges for Costs and Expenses
2924k. (a) The trustee, or the clerk of the court upon order to the
clerk pursuant to subdivision (d) of Section 2924j, shall distribute
the proceeds, or a portion of the proceeds, as the case may be, of
the trustee’s sale conducted pursuant to Section 2924h in the
following order of priority:
(1) To the costs and expenses of exercising the power of sale and
of sale, including the payment of the trustee’s fees and attorney’s
fees permitted pursuant to subdivision (b) of Section 2924d and
subdivision (b) of this section.
(2) To the payment of the obligations secured by the deed of trust
or mortgage which is the subject of the trustee’s sale.
(3) To satisfy the outstanding balance of obligations secured by
any junior liens or encumbrances in the order of their priority.
(4) To the trustor or the trustor’s successor in interest. In the
event the property is sold or transferred to another, to the vested
owner of record at the time of the trustee’s sale.
(b) A trustee may charge costs and expenses incurred for such
items as mailing and a reasonable fee for services rendered in
connection with the distribution of the proceeds from a trustee’s
sale, including, but not limited to, the investigation of priority
and validity of claims and the disbursement of funds. If the fee
charged for services rendered pursuant to this subdivision does not
exceed one hundred dollars ($100), or one hundred twenty-five dollars
($125) where there are obligations specified in paragraph (3) of
subdivision (a), the fee is conclusively presumed to be reasonable.

Filing Declaration of Nonmonetary Status by Trustee; 15 Day Objection Period
2924l. (a) In the event that a trustee under a deed of trust is
named in an action or proceeding in which that deed of trust is the
subject, and in the event that the trustee maintains a reasonable
belief that it has been named in the action or proceeding solely in
its capacity as trustee, and not arising out of any wrongful acts or
omissions on its part in the performance of its duties as trustee,
then, at any time, the trustee may file a declaration of nonmonetary
status. The declaration shall be served on the parties in the manner
set forth in Chapter 5 (commencing with Section 1010) of Title 14 of
the Code of Civil Procedure.
(b) The declaration of nonmonetary status shall set forth the
status of the trustee as trustee under the deed of trust that is the
subject of the action or proceeding, that the trustee knows or
maintains a reasonable belief that it has been named as a defendant
in the proceeding solely in its capacity as a trustee under the deed
of trust, its reasonable belief that it has not been named as a
defendant due to any acts or omissions on its part in the performance
of its duties as trustee, the basis for that knowledge or reasonable
belief, and that it agrees to be bound by whatever order or judgment
is issued by the court regarding the subject deed of trust.
(c) The parties who have appeared in the action or proceeding
shall have 15 days from the service of the declaration by the trustee
in which to object to the nonmonetary judgment status of the
trustee. Any objection shall set forth the factual basis on which the
objection is based and shall be served on the trustee.
(d) In the event that no objection is served within the 15-day
objection period, the trustee shall not be required to participate
any further in the action or proceeding, shall not be subject to any
monetary awards as and for damages, attorneys’ fees or costs, shall
be required to respond to any discovery requests as a nonparty, and
shall be bound by any court order relating to the subject deed of
trust that is the subject of the action or proceeding.
(e) In the event of a timely objection to the declaration of
nonmonetary status, the trustee shall thereafter be required to
participate in the action or proceeding.
Additionally, in the event that the parties elect not to, or fail
to, timely object to the declaration of nonmonetary status, but later
through discovery, or otherwise, determine that the trustee should
participate in the action because of the performance of its duties as
a trustee, the parties may file and serve on all parties and the
trustee a motion pursuant to Section 473 of the Code of Civil
Procedure that specifies the factual basis for the demand. Upon the
court’s granting of the motion, the trustee shall thereafter be
required to participate in the action or proceeding, and the court
shall provide sufficient time prior to trial for the trustee to be
able to respond to the complaint, to conduct discovery, and to bring
other pretrial motions in accordance with the Code of Civil
Procedure.
(f) Upon the filing of the declaration of nonmonetary status, the
time within which the trustee is required to file an answer or other
responsive pleading shall be tolled for the period of time within
which the opposing parties may respond to the declaration. Upon the
timely service of an objection to the declaration on nonmonetary
status, the trustee shall have 30 days from the date of service
within which to file an answer or other responsive pleading to the
complaint or cross-complaint.
(g) For purposes of this section, “trustee” includes any agent or
employee of the trustee who performs some or all of the duties of a
trustee under this article, and includes substituted trustees and
agents of the beneficiary or trustee.

Absolute Deed as Mortgage
2925. The fact that a transfer was made subject to defeasance on a
condition, may, for the purpose of showing such transfer to be a
mortgage, be proved (except as against a subsequent purchaser or
incumbrancer for value and without notice), though the fact does not
appear by the terms of the instrument.

Lien of Mortgage; Extent
2926. A mortgage is a lien upon everything that would pass by a
grant of the property.

Possession Remains in Mortgagor
2927. A mortgage does not entitle the mortgagee to the possession
of the property, unless authorized by the express terms of the
mortgage; but after the execution of the mortgage the mortgagor may
agree to such change of possession without a new consideration.

Personal Liability of Mortgagor
2928. A mortgage does not bind the mortgagor personally to perform
the act for the performance of which it is a security, unless there
is an express covenant therein to that effect.

Impairment of Security
2929. No person whose interest is subject to the lien of a mortgage
may do any act which will substantially impair the mortgagee’s
security.

Duty to Maintain Vacant Residential Property; Fines
2929.3. (a) (1) A legal owner shall maintain vacant residential
property purchased by that owner at a foreclosure sale, or acquired
by that owner through foreclosure under a mortgage or deed of trust.
A governmental entity may impose a civil fine of up to one thousand
dollars ($1,000) per day for a violation. If the governmental entity
chooses to impose a fine pursuant to this section, it shall give
notice of the alleged violation, including a description of the
conditions that gave rise to the allegation, and notice of the entity’
s intent to assess a civil fine if action to correct the violation is
not commenced within a period of not less than 14 days and completed
within a period of not less than 30 days. The notice shall be mailed
to the address provided in the deed or other instrument as specified
in subdivision (a) of Section 27321.5 of the Government Code, or, if
none, to the return address provided on the deed or other
instrument.
(2) The governmental entity shall provide a period of not less
than 30 days for the legal owner to remedy the violation prior to
imposing a civil fine and shall allow for a hearing and opportunity
to contest any fine imposed. In determining the amount of the fine,
the governmental entity shall take into consideration any timely and
good faith efforts by the legal owner to remedy the violation. The
maximum civil fine authorized by this section is one thousand dollars
($1,000) for each day that the owner fails to maintain the property,
commencing on the day following the expiration of the period to
remedy the violation established by the governmental entity.
(3) Subject to the provisions of this section, a governmental
entity may establish different compliance periods for different
conditions on the same property in the notice of alleged violation
mailed to the legal owner.
(b) For purposes of this section, “failure to maintain” means
failure to care for the exterior of the property, including, but not
limited to, permitting excessive foliage growth that diminishes the
value of surrounding properties, failing to take action to prevent
trespassers or squatters from remaining on the property, or failing
to take action to prevent mosquito larvae from growing in standing
water or other conditions that create a public nuisance.
(c) Notwithstanding subdivisions (a) and (b), a governmental
entity may provide less than 30 days’ notice to remedy a condition
before imposing a civil fine if the entity determines that a specific
condition of the property threatens public health or safety and
provided that notice of that determination and time for compliance is
given.
(d) Fines and penalties collected pursuant to this section shall
be directed to local nuisance abatement programs.
(e) A governmental entity may not impose fines on a legal owner
under both this section and a local ordinance.
(f) These provisions shall not preempt any local ordinance.
(g) This section shall only apply to residential real property.
(h) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(i) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.

Permission to Inspect for Hazardous Substance
2929.5. (a) A secured lender may enter and inspect the real
property security for the purpose of determining the existence,
location, nature, and magnitude of any past or present release or
threatened release of any hazardous substance into, onto, beneath, or
from the real property security on either of the following:
(1) Upon reasonable belief of the existence of a past or present
release or threatened release of any hazardous substance into, onto,
beneath, or from the real property security not previously disclosed
in writing to the secured lender in conjunction with the making,
renewal, or modification of a loan, extension of credit, guaranty, or
other obligation involving the borrower.
(2) After the commencement of nonjudicial or judicial foreclosure
proceedings against the real property security.
(b) The secured lender shall not abuse the right of entry and
inspection or use it to harass the borrower or tenant of the
property. Except in case of an emergency, when the borrower or tenant
of the property has abandoned the premises, or if it is
impracticable to do so, the secured lender shall give the borrower or
tenant of the property reasonable notice of the secured lender’s
intent to enter, and enter only during the borrower’s or tenant’s
normal business hours. Twenty-four hours’ notice shall be presumed to
be reasonable notice in the absence of evidence to the contrary.
(c) The secured lender shall reimburse the borrower for the cost
of repair of any physical injury to the real property security caused
by the entry and inspection.
(d) If a secured lender is refused the right of entry and
inspection by the borrower or tenant of the property, or is otherwise
unable to enter and inspect the property without a breach of the
peace, the secured lender may, upon petition, obtain an order from a
court of competent jurisdiction to exercise the secured lender’s
rights under subdivision (a), and that action shall not constitute an
action within the meaning of subdivision (a) of Section 726 of the
Code of Civil Procedure.
(e) For purposes of this section:
(1) “Borrower” means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor-in-interest of the
trustor or mortgagor to the real property security before the deed of
trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(2) “Hazardous substance” includes all of the following:
(A) Any “hazardous substance” as defined in subdivision (h) of
Section 25281 of the Health and Safety Code.
(B) Any “waste” as defined in subdivision (d) of Section 13050 of
the Water Code.
(C) Petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel, or any mixture thereof.
(3) “Real property security” means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms “separate interest,” “common area,” and “common interest
development” are defined in Section 1351, or real property consisting
of one acre or less which contains 1 to 15 dwelling units.
(4) “Release” means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater.
(5) “Secured lender” means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor-in-interest of
the beneficiary or mortgagee to the deed of trust or mortgage.

After-Acquired Title
[2930.] Section Twenty-nine Hundred and Thirty. Title acquired by
the mortgagor subsequent to the execution of the mortgage, inures to
the mortgagee as security for the debt in like manner as if acquired
before the execution.

Foreclosure — Code of Civil Procedure Governs
2931. A mortgagee may foreclose the right of redemption of the
mortgagor in the manner prescribed by the CODE OF CIVIL PROCEDURE.

State of California may be Made a Party to Case
2931a. In any action brought to determine conflicting claims to
real property, or for partition of real property or an estate for
years therein, or to foreclose a deed of trust, mortgage, or other
lien upon real property, or in all eminent domain proceedings under
Section 1250.110 et seq., of the Code of Civil Procedure against real
property upon which exists a lien to secure the payment of taxes or
other obligations to an agency of the State of California, other than
ad valorem taxes upon the real property, the state agency charged
with the collection of the tax obligation may be made a party. In
such an action, the court shall have jurisdiction to determine the
priority and effect of the liens described in the complaint in or
upon the real property or estate for years therein, but the
jurisdiction of the court in the action shall not include a
determination of the validity of the tax giving rise to the lien or
claim of lien. The complaint or petition in the action shall contain
a description of the lien sufficient to enable the tax or other
obligation, payment of which it secures, to be identified with
certainty, and shall include the name and address of the person owing
the tax or other obligation, the name of the state agency that
recorded the lien, and the date and place where the lien was
recorded. Services of process in the action shall be made upon the
agency, officer, board, commission, department, division, or other
body charged with the collection of the tax or obligation. It shall
be the duty of the Attorney General to represent the state agency in
the action.

State may Bid on Properrty
2931b. In all actions in which the State of California is named a
party pursuant to the provisions of Section 2931a and in which real
property or an estate for years therein is sought to be sold, the
Attorney General may, with the consent of the Department of Finance,
bid upon and purchase that real property or estate for years.

Actions to Foreclose Tax Liens
2931c. The Attorney General may bring an action in the courts of
this or any other state or of the United States to enforce any lien
to secure the payment of taxes or other obligations to the State of
California under the Unemployment Insurance Code, the Revenue and
Taxation Code, or Chapter 6 (commencing with Section 16180) of Part 1
of Division 4 of Title 2 of the Government Code or to subject to
payment of the liability giving rise to the lien any property in
which the debtor has any right, title, or interest. In any action
brought under this section the court shall have jurisdiction to
determine the priority and effect of the lien in or upon the
property, but the jurisdiction of the court in such action shall not
extend to a determination of the validity of the liability giving
rise to the lien.

Power of Sale in Mortgage
2932. A power of sale may be conferred by a mortgage upon the
mortgagee or any other person, to be exercised after a breach of the
obligation for which the mortgage is a security.

Power of Sale under Assigned Mortgage
2932.5. Where a power to sell real property is given to a
mortgagee, or other encumbrancer, in an instrument intended to secure
the payment of money, the power is part of the security and vests in
any person who by assignment becomes entitled to payment of the
money secured by the instrument. The power of sale may be exercised
by the assignee if the assignment is duly acknowledged and recorded.

Financial Institutions — Repair of Property After Foreclosure
2932.6. (a) Notwithstanding any other provision of law, a financial
institution may undertake to repair any property acquired through
foreclosure under a mortgage or deed of trust.
(b) As used in this section, the term “financial institution”
includes, but is not limited to, banks, savings associations, credit
unions, and industrial loan companies.
(c) The rights granted to a financial institution by this section
are in addition to, and not in derogation of, the rights of a
financial institution which otherwise exist.

Power of Attorney to Execute Mortgage
2933. A power of attorney to execute a mortgage must be in writing,
subscribed, acknowledged, or proved, certified, and recorded in like
manner as powers of attorney for grants of real property.

Record of Assignment of Mortgage
2934. Any assignment of a mortgage and any assignment of the
beneficial interest under a deed of trust may be recorded, and from
the time the same is filed for record operates as constructive notice
of the contents thereof to all persons; and any instrument by which
any mortgage or deed of trust of, lien upon or interest in real
property, (or by which any mortgage of, lien upon or interest in
personal property a document evidencing or creating which is required
or permitted by law to be recorded), is subordinated or waived as to
priority may be recorded, and from the time the same is filed for
record operates as constructive notice of the contents thereof, to
all persons.

Substitution of Trustees in Trust Deeds
2934a. (a) (1) The trustee under a trust deed upon real property or
an estate for years therein given to secure an obligation to pay
money and conferring no other duties upon the trustee than those
which are incidental to the exercise of the power of sale therein
conferred, may be substituted by the recording in the county in which
the property is located of a substitution executed and acknowledged
by: (A) all of the beneficiaries under the trust deed, or their
successors in interest, and the substitution shall be effective
notwithstanding any contrary provision in any trust deed executed on
or after January 1, 1968; or (B) the holders of more than 50 percent
of the record beneficial interest of a series of notes secured by the
same real property or of undivided interests in a note secured by
real property equivalent to a series transaction, exclusive of any
notes or interests of a licensed real estate broker that is the
issuer or servicer of the notes or interests or of any affiliate of
that licensed real estate broker.
(2) A substitution executed pursuant to subparagraph (B) of
paragraph (1) is not effective unless all the parties signing the
substitution sign, under penalty of perjury, a separate written
document stating the following:
(A) The substitution has been signed pursuant to subparagraph (B)
of paragraph (1).
(B) None of the undersigned is a licensed real estate broker or an
affiliate of the broker that is the issuer or servicer of the
obligation secured by the deed of trust.
(C) The undersigned together hold more than 50 percent of the
record beneficial interest of a series of notes secured by the same
real property or of undivided interests in a note secured by real
property equivalent to a series transaction.
(D) Notice of the substitution was sent by certified mail, postage
prepaid, with return receipt requested to each holder of an interest
in the obligation secured by the deed of trust who has not joined in
the execution of the substitution or the separate document.
The separate document shall be attached to the substitution and be
recorded in the office of the county recorder of each county in
which the real property described in the deed of trust is located.
Once the document required by this paragraph is recorded, it shall
constitute conclusive evidence of compliance with the requirements of
this paragraph in favor of substituted trustees acting pursuant to
this section, subsequent assignees of the obligation secured by the
deed of trust, and subsequent bona fide purchasers or encumbrancers
for value of the real property described therein.
(3) For purposes of this section, “affiliate of the licensed real
estate broker” includes any person as defined in Section 25013 of the
Corporations Code that is controlled by, or is under common control
with, or who controls, a licensed real estate broker. “Control” means
the possession, direct or indirect, of the power to direct or cause
the direction of management and policies.
(4) The substitution shall contain the date of recordation of the
trust deed, the name of the trustor, the book and page or instrument
number where the trust deed is recorded, and the name of the new
trustee. From the time the substitution is filed for record, the new
trustee shall succeed to all the powers, duties, authority, and title
granted and delegated to the trustee named in the deed of trust. A
substitution may be accomplished, with respect to multiple deeds of
trust which are recorded in the same county in which the substitution
is being recorded and which all have the same trustee and
beneficiary or beneficiaries, by recording a single document,
complying with the requirements of this section, substituting
trustees for all those deeds of trust.
(b) If the substitution is effected after a notice of default has
been recorded but prior to the recording of the notice of sale, the
beneficiary or beneficiaries shall cause a copy of the substitution
to be mailed, prior to the recording thereof, in the manner provided
in Section 2924b, to the trustee then of record and to all persons to
whom a copy of the notice of default would be required to be mailed
by the provisions of Section 2924b. An affidavit shall be attached to
the substitution that notice has been given to those persons and in
the manner required by this subdivision.
(c) Notwithstanding any provision of this section or any provision
in any deed of trust, unless a new notice of sale containing the
name, street address, and telephone number of the substituted trustee
is given pursuant to Section 2924f, any sale conducted by the
substituted trustee shall be void.
(d) This section shall remain in effect only until January 1,
1998, and shall have no force or effect after that date, unless a
later enacted statute, which is enacted before January 1, 1998,
deletes or extends that date.

Substitution of Trustees
2934a. (a) (1) The trustee under a trust deed upon real property or
an estate for years therein given to secure an obligation to pay
money and conferring no other duties upon the trustee than those
which are incidental to the exercise of the power of sale therein
conferred, may be substituted by the recording in the county in which
the property is located of a substitution executed and acknowledged
by: (A) all of the beneficiaries under the trust deed, or their
successors in interest, and the substitution shall be effective
notwithstanding any contrary provision in any trust deed executed on
or after January 1, 1968; or (B) the holders of more than 50 percent
of the record beneficial interest of a series of notes secured by the
same real property or of undivided interests in a note secured by
real property equivalent to a series transaction, exclusive of any
notes or interests of a licensed real estate broker that is the
issuer or servicer of the notes or interests or of any affiliate of
that licensed real estate broker.
(2) A substitution executed pursuant to subparagraph (B) of
paragraph (1) is not effective unless all the parties signing the
substitution sign, under penalty of perjury, a separate written
document stating the following:
(A) The substitution has been signed pursuant to subparagraph (B)
of paragraph (1).
(B) None of the undersigned is a licensed real estate broker or an
affiliate of the broker that is the issuer or servicer of the
obligation secured by the deed of trust.
(C) The undersigned together hold more than 50 percent of the
record beneficial interest of a series of notes secured by the same
real property or of undivided interests in a note secured by real
property equivalent to a series transaction.
(D) Notice of the substitution was sent by certified mail, postage
prepaid, with return receipt requested to each holder of an interest
in the obligation secured by the deed of trust who has not joined in
the execution of the substitution or the separate document.
The separate document shall be attached to the substitution and be
recorded in the office of the county recorder of each county in
which the real property described in the deed of trust is located.
Once the document required by this paragraph is recorded, it shall
constitute conclusive evidence of compliance with the requirements of
this paragraph in favor of substituted trustees acting pursuant to
this section, subsequent assignees of the obligation secured by the
deed of trust and subsequent bona fide purchasers or encumbrancers
for value of the real property described therein.
(3) For purposes of this section, “affiliate of the licensed real
estate broker” includes any person as defined in Section 25013 of the
Corporations Code that is controlled by, or is under common control
with, or who controls, a licensed real estate broker. “Control” means
the possession, direct or indirect, of the power to direct or cause
the direction of management and policies.
(4) The substitution shall contain the date of recordation of the
trust deed, the name of the trustor, the book and page or instrument
number where the trust deed is recorded, and the name of the new
trustee. From the time the substitution is filed for record, the new
trustee shall succeed to all the powers, duties, authority, and title
granted and delegated to the trustee named in the deed of trust. A
substitution may be accomplished, with respect to multiple deeds of
trust which are recorded in the same county in which the substitution
is being recorded and which all have the same trustee and
beneficiary or beneficiaries, by recording a single document,
complying with the requirements of this section, substituting
trustees for all those deeds of trust.
(b) If the substitution is executed, but not recorded, prior to or
concurrently with the recording of the notice of default, the
beneficiary or beneficiaries or their authorized agents shall cause
notice of the substitution to be mailed prior to or concurrently with
the recording thereof, in the manner provided in Section 2924b, to
all persons to whom a copy of the notice of default would be required
to be mailed by the provisions of Section 2924b. An affidavit shall
be attached to the substitution that notice has been given to those
persons and in the manner required by this subdivision.
(c) If the substitution is effected after a notice of default has
been recorded but prior to the recording of the notice of sale, the
beneficiary or beneficiaries or their authorized agents shall cause a
copy of the substitution to be mailed, prior to, or concurrently
with, the recording thereof, in the manner provided in Section 2924b,
to the trustee then of record and to all persons to whom a copy of
the notice of default would be required to be mailed by the
provisions of Section 2924b. An affidavit shall be attached to the
substitution that notice has been given to those persons and in the
manner required by this subdivision.
(d) A trustee named in a recorded substitution of trustee shall be
deemed to be authorized to act as the trustee under the mortgage or
deed of trust for all purposes from the date the substitution is
executed by the mortgagee, beneficiaries, or by their authorized
agents. Nothing herein requires that a trustee under a recorded
substitution accept the substitution. Once recorded, the substitution
shall constitute conclusive evidence of the authority of the
substituted trustee or his or her agents to act pursuant to this
section.
(e) Notwithstanding any provision of this section or any provision
in any deed of trust, unless a new notice of sale containing the
name, street address, and telephone number of the substituted trustee
is given pursuant to Section 2924f after execution of the
substitution, any sale conducted by the substituted trustee shall be
void.
(f) This section shall become operative on January 1, 1998.

Vacation of Office of Trustee under Deed of Trust
2934b. Sections 15643 and 18102 of the Probate Code apply to
trustees under deeds of trust given to secure obligations.

Execution of Security Not Notice to Debtor
2935. When a mortgage or deed of trust is executed as security for
money due or to become due, on a promissory note, bond, or other
instrument, designated in the mortgage or deed of trust, the record
of the assignment of the mortgage or of the assignment of the
beneficial interest under the deed of trust, is not of itself notice
to the debtor, his heirs, or personal representatives, so as to
invalidate any payment made by them, or any of them, to the person
holding such note, bond, or other instrument.

Assignment of Debt Carries Security
2936. The assignment of a debt secured by mortgage carries with it
the security.

Transfer of Servicing of Debt Secured by Real Property Mortgage
2937. (a) The Legislature hereby finds and declares that borrowers
or subsequent obligors have the right to know when a person holding a
promissory note, bond, or other instrument transfers servicing of
the indebtedness secured by a mortgage or deed of trust on real
property containing one to four residential units located in this
state. The Legislature also finds that notification to the borrower
or subsequent obligor of the transfer may protect the borrower or
subsequent obligor from fraudulent business practices and may ensure
timely payments.
It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice
when a person transfers the servicing of the indebtedness on notes,
bonds, or other instruments secured by a mortgage or deed of trust on
real property containing one to four residential units and located
in this state.
(b) Any person transferring the servicing of indebtedness as
provided in subdivision (a) to a different servicing agent and any
person assuming from another responsibility for servicing the
instrument evidencing indebtedness, shall give written notice to the
borrower or subsequent obligor before the borrower or subsequent
obligor becomes obligated to make payments to a new servicing agent.
(c) In the event a notice of default has been recorded or a
judicial foreclosure proceeding has been commenced, the person
transferring the servicing of the indebtedness and the person
assuming from another the duty of servicing the indebtedness shall
give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer. A notice of
default, notice of sale, or judicial foreclosure shall not be
invalidated solely because the servicing agent is changed during the
foreclosure process.
(d) Any person transferring the servicing of indebtedness as
provided in subdivision (a) to a different servicing agent shall
provide to the new servicing agent all existing insurance policy
information that the person is responsible for maintaining,
including, but not limited to, flood and hazard insurance policy
information.
(e) The notices required by subdivision (b) shall be sent by
first-class mail, postage prepaid, to the borrower’s or subsequent
obligor’s address designated for loan payment billings, or if escrow
is pending, as provided in the escrow, and shall contain each of the
following:
(1) The name and address of the person to which the transfer of
the servicing of the indebtedness is made.
(2) The date the transfer was or will be completed.
(3) The address where all payments pursuant to the transfer are to
be made.
(f) Any person assuming from another responsibility for servicing
the instrument evidencing indebtedness shall include in the notice
required by subdivision (b) a statement of the due date of the next
payment.
(g) The borrower or subsequent obligor shall not be liable to the
holder of the note, bond, or other instrument or to any servicing
agent for payments made to the previous servicing agent or for late
charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as
provided by subdivision (e) and the payments were otherwise on time.
(h) For purposes of this section, the term servicing agent shall
not include a trustee exercising a power of sale pursuant to a deed
of trust.

Service of Process on Trustee — Effect on Transfer of Beneficiary
2937.7. In any action affecting the interest of any trustor or
beneficiary under a deed of trust or mortgage, service of process to
the trustee does not constitute service to the trustor or beneficiary
and does not impose any obligation on the trustee to notify the
trustor or beneficiary of the action.

Effect of Assignment of Interest in Leases, Rents, Issues or Profits — Recordation —
Alternative Methods of Enforcement
2938. (a) A written assignment of an interest in leases, rents,
issues, or profits of real property made in connection with an
obligation secured by real property, irrespective of whether the
assignment is denoted as absolute, absolute conditioned upon default,
additional security for an obligation, or otherwise, shall, upon
execution and delivery by the assignor, be effective to create a
present security interest in existing and future leases, rents,
issues, or profits of that real property. As used in this section,
“leases, rents, issues, and profits of real property” includes the
cash proceeds thereof. “Cash proceeds” means cash, checks, deposit
accounts, and the like.
(b) An assignment of an interest in leases, rents, issues, or
profits of real property may be recorded in the records of the county
recorder in the county in which the underlying real property is
located in the same manner as any other conveyance of an interest in
real property, whether the assignment is in a separate document or
part of a mortgage or deed of trust, and when so duly recorded in
accordance with the methods, procedures, and requirements for
recordation of conveyances of other interests in real property, (1)
the assignment shall be deemed to give constructive notice of the
content of the assignment with the same force and effect as any other
duly recorded conveyance of an interest in real property and (2) the
interest granted by the assignment shall be deemed fully perfected
as of the time of recordation with the same force and effect as any
other duly recorded conveyance of an interest in real property,
notwithstanding a provision of the assignment or a provision of law
that would otherwise preclude or defer enforcement of the rights
granted the assignee under the assignment until the occurrence of a
subsequent event, including, but not limited to, a subsequent default
of the assignor, or the assignee’s obtaining possession of the real
property or the appointment of a receiver.
(c) Upon default of the assignor under the obligation secured by
the assignment of leases, rents, issues, and profits, the assignee
shall be entitled to enforce the assignment in accordance with this
section. On and after the date the assignee takes one or more of the
enforcement steps described in this subdivision, the assignee shall
be entitled to collect and receive all rents, issues, and profits
that have accrued but remain unpaid and uncollected by the assignor
or its agent or for the assignor’s benefit on that date, and all
rents, issues, and profits that accrue on or after the date. The
assignment shall be enforced by one or more of the following:
(1) The appointment of a receiver.
(2) Obtaining possession of the rents, issues, or profits.
(3) Delivery to any one or more of the tenants of a written demand
for turnover of rents, issues, and profits in the form specified in
subdivision (k), a copy of which demand shall also be delivered to
the assignor; and a copy of which shall be mailed to all other
assignees of record of the leases, rents, issues, and profits of the
real property at the address for notices provided in the assignment
or, if none, to the address to which the recorded assignment was to
be mailed after recording.
(4) Delivery to the assignor of a written demand for the rents,
issues, or profits, a copy of which shall be mailed to all other
assignees of record of the leases, rents, issues, and profits of the
real property at the address for notices provided in the assignment
or, if none, to the address to which the recorded assignment was to
be mailed after recording.
Moneys received by the assignee pursuant to this subdivision, net
of amounts paid pursuant to subdivision (g), if any, shall be applied
by the assignee to the debt or otherwise in accordance with the
assignment or the promissory note, deed of trust, or other instrument
evidencing the obligation, provided, however, that neither the
application nor the failure to so apply the rents, issues, or profits
shall result in a loss of any lien or security interest that the
assignee may have in the underlying real property or any other
collateral, render the obligation unenforceable, constitute a
violation of Section 726 of the Code of Civil Procedure, or otherwise
limit a right available to the assignee with respect to its
security.
(d) If an assignee elects to take the action provided for under
paragraph (3) of subdivision (c), the demand provided for therein
shall be signed under penalty of perjury by the assignee or an
authorized agent of the assignee and shall be effective as against
the tenant when actually received by the tenant at the address for
notices provided under the lease or other contractual agreement under
which the tenant occupies the property or, if no address for notices
is so provided, at the property. Upon receipt of this demand, the
tenant shall be obligated to pay to the assignee all rents, issues,
and profits that are past due and payable on the date of receipt of
the demand, and all rents, issues, and profits coming due under the
lease following the date of receipt of the demand, unless either of
the following occurs:
(1) The tenant has previously received a demand that is valid on
its face from another assignee of the leases, issues, rents, and
profits sent by the other assignee in accordance with this
subdivision and subdivision (c).
(2) The tenant, in good faith and in a manner that is not
inconsistent with the lease, has previously paid, or within 10 days
following receipt of the demand notice pays, the rent to the
assignor.
Payment of rent to an assignee following a demand under an
assignment of leases, rents, issues, and profits shall satisfy the
tenant’s obligation to pay the amounts under the lease. If a tenant
pays rent to the assignor after receipt of a demand other than under
the circumstances described in this subdivision, the tenant shall not
be discharged of the obligation to pay rent to the assignee, unless
the tenant occupies the property for residential purposes. The
obligation of a tenant to pay rent pursuant to this subdivision and
subdivision (c) shall continue until receipt by the tenant of a
written notice from a court directing the tenant to pay the rent in a
different manner or receipt by the tenant of a written notice from
the assignee from whom the demand was received canceling the demand,
whichever occurs first. This subdivision does not affect the
entitlement to rents, issues, or profits as between assignees as set
forth in subdivision (h).
(e) An enforcement action of the type authorized by subdivision
(c), and a collection, distribution, or application of rents, issues,
or profits by the assignee following an enforcement action of the
type authorized by subdivision (c), shall not do any of the
following:
(1) Make the assignee a mortgagee in possession of the property,
except if the assignee obtains actual possession of the real
property, or an agent of the assignor.
(2) Constitute an action, render the obligation unenforceable,
violate Section 726 of the Code of Civil Procedure, or, other than
with respect to marshaling requirements, otherwise limit any rights
available to the assignee with respect to its security.
(3) Be deemed to create a bar to a deficiency judgment pursuant to
a provision of law governing or relating to deficiency judgments
following the enforcement of any encumbrance, lien, or security
interest, notwithstanding that the action, collection, distribution,
or application may reduce the indebtedness secured by the assignment
or by a deed of trust or other security instrument.
The application of rents, issues, or profits to the secured
obligation shall satisfy the secured obligation to the extent of
those rents, issues, or profits, and, notwithstanding any provisions
of the assignment or other loan documents to the contrary, shall be
credited against any amounts necessary to cure any monetary default
for purposes of reinstatement under Section 2924c.
(f) If cash proceeds of rents, issues, or profits to which the
assignee is entitled following enforcement as set forth in
subdivision (c) are received by the assignor or its agent for
collection or by another person who has collected such rents, issues,
or profits for the assignor’s benefit, or for the benefit of a
subsequent assignee under the circumstances described in subdivision
(h), following the taking by the assignee of either of the
enforcement actions authorized in paragraph (3) or (4) of subdivision
(c), and the assignee has not authorized the assignor’s disposition
of the cash proceeds in a writing signed by the assignee, the rights
to the cash proceeds and to the recovery of the cash proceeds shall
be determined by the following:
(1) The assignee shall be entitled to an immediate turnover of the
cash proceeds received by the assignor or its agent for collection
or any other person who has collected the rents, issues, or profits
for the assignor’s benefit, or for the benefit of a subsequent
assignee under the circumstances described in subdivision (h), and
the assignor or other described party in possession of those cash
proceeds shall turn over the full amount of cash proceeds to the
assignee, less any amount representing payment of expenses authorized
by the assignee in writing. The assignee shall have a right to bring
an action for recovery of the cash proceeds, and to recover the cash
proceeds, without the necessity of bringing an action to foreclose a
security interest that it may have in the real property. This action
shall not violate Section 726 of the Code of Civil Procedure or
otherwise limit a right available to the assignee with respect to its
security.
(2) As between an assignee with an interest in cash proceeds
perfected in the manner set forth in subdivision (b) and enforced in
accordance with paragraph (3) or (4) of subdivision (c) and another
person claiming an interest in the cash proceeds, other than the
assignor or its agent for collection or one collecting rents, issues,
and profits for the benefit of the assignor, and subject to
subdivision (h), the assignee shall have a continuously perfected
security interest in the cash proceeds to the extent that the cash
proceeds are identifiable. For purposes hereof, cash proceeds are
identifiable if they are either (A) segregated or (B) if commingled
with other funds of the assignor or its agent or one acting on its
behalf, can be traced using the lowest intermediate balance
principle, unless the assignor or other party claiming an interest in
proceeds shows that some other method of tracing would better serve
the interests of justice and equity under the circumstances of the
case. The provisions of this paragraph are subject to any generally
applicable law with respect to payments made in the operation of the
assignor’s business.
(g) (1) If the assignee enforces the assignment under subdivision
(c) by means other than the appointment of a receiver and receives
rents, issues, or profits pursuant to this enforcement, the assignor
or another assignee of the affected real property may make written
demand upon the assignee to pay the reasonable costs of protecting
and preserving the property, including payment of taxes and insurance
and compliance with building and housing codes, if any.
(2) On and after the date of receipt of the demand, the assignee
shall pay for the reasonable costs of protecting and preserving the
real property to the extent of any rents, issues, or profits actually
received by the assignee, provided, however, that no such acts by
the assignee shall cause the assignee to become a mortgagee in
possession and the assignee’s duties under this subdivision, upon
receipt of a demand from the assignor or any other assignee of the
leases, rents, issues, and profits pursuant to paragraph (1), shall
not be construed to require the assignee to operate or manage the
property, which obligation shall remain that of the assignor.
(3) The obligation of the assignee hereunder shall continue until
the earlier of (A) the date on which the assignee obtains the
appointment of a receiver for the real property pursuant to
application to a court of competent jurisdiction, or (B) the date on
which the assignee ceases to enforce the assignment.
(4) This subdivision does not supersede or diminish the right of
the assignee to the appointment of a receiver.
(h) The lien priorities, rights, and interests among creditors
concerning rents, issues, or profits collected before the enforcement
by the assignee shall be governed by subdivisions (a) and (b).
Without limiting the generality of the foregoing, if an assignee who
has recorded its interest in leases, rents, issues, and profits prior
to the recordation of that interest by a subsequent assignee seeks
to enforce its interest in those rents, issues, or profits in
accordance with this section after any enforcement action has been
taken by a subsequent assignee, the prior assignee shall be entitled
only to the rents, issues, and profits that are accrued and unpaid as
of the date of its enforcement action and unpaid rents, issues, and
profits accruing thereafter. The prior assignee shall have no right
to rents, issues, or profits paid prior to the date of the
enforcement action, whether in the hands of the assignor or any
subsequent assignee. Upon receipt of notice that the prior assignee
has enforced its interest in the rents, issues, and profits, the
subsequent assignee shall immediately send a notice to any tenant to
whom it has given notice under subdivision (c). The notice shall
inform the tenant that the subsequent assignee cancels its demand
that the tenant pay rent to the subsequent assignee.
(i) (1) This section shall apply to contracts entered into on or
after January 1, 1997.
(2) Sections 2938 and 2938.1, as these sections were in effect
prior to January 1, 1997, shall govern contracts entered into prior
to January 1, 1997, and shall govern actions and proceedings
initiated on the basis of these contracts.
(j) “Real property,” as used in this section, means real property
or any estate or interest therein.
(k) The demand required by paragraph (3) of subdivision (c) shall
be in the following form:
DEMAND TO PAY RENT TO
PARTY OTHER THAN LANDLORD
(SECTION 2938 OF THE CIVIL CODE)
Tenant: [Name of Tenant]

Property Occupied by Tenant: [Address]

Landlord: [Name of Landlord]

Secured Party: [Name of Secured Party]

Address: [Address for Payment of Rent to Secured Party and for
Further Information]:

The secured party named above is the assignee of leases, rents,
issues, and profits under [name of document] dated ______, and
recorded at [recording information] in the official records of
___________ County, California. You may request a copy of the
assignment from the secured party at ____ (address).

THIS NOTICE AFFECTS YOUR LEASE OR RENTAL AGREEMENT RIGHTS AND
OBLIGATIONS. YOU ARE THEREFORE ADVISED TO CONSULT AN ATTORNEY
CONCERNING THOSE RIGHTS AND OBLIGATIONS IF YOU HAVE ANY QUESTIONS
REGARDING YOUR RIGHTS AND OBLIGATIONS UNDER THIS NOTICE.

IN ACCORDANCE WITH SUBDIVISION (C) OF SECTION 2938 OF THE CIVIL
CODE, YOU ARE HEREBY DIRECTED TO PAY TO THE SECURED PARTY, ____ (NAME
OF SECURED PARTY) AT ____ (ADDRESS), ALL RENTS UNDER YOUR LEASE OR
OTHER RENTAL AGREEMENT WITH THE LANDLORD OR PREDECESSOR IN INTEREST
OF LANDLORD, FOR THE OCCUPANCY OF THE PROPERTY AT ____ (ADDRESS OF
RENTAL PREMISES) WHICH ARE PAST DUE AND PAYABLE ON THE DATE YOU
RECEIVE THIS DEMAND, AND ALL RENTS COMING DUE UNDER THE LEASE OR
OTHER RENTAL AGREEMENT FOLLOWING THE DATE YOU RECEIVE THIS DEMAND
UNLESS YOU HAVE ALREADY PAID THIS RENT TO THE LANDLORD IN GOOD FAITH
AND IN A MANNER NOT INCONSISTENT WITH THE AGREEMENT BETWEEN YOU AND
THE LANDLORD. IN THIS CASE, THIS DEMAND NOTICE SHALL REQUIRE YOU TO
PAY TO THE SECURED PARTY, ____ (NAME OF THE SECURED PARTY), ALL RENTS
THAT COME DUE FOLLOWING THE DATE OF THE PAYMENT TO THE LANDLORD.

IF YOU PAY THE RENT TO THE UNDERSIGNED SECURED PARTY, ____ (NAME
OF SECURED PARTY), IN ACCORDANCE WITH THIS NOTICE, YOU DO NOT HAVE TO
PAY THE RENT TO THE LANDLORD. YOU WILL NOT BE SUBJECT TO DAMAGES OR
OBLIGATED TO PAY RENT TO THE SECURED PARTY IF YOU HAVE PREVIOUSLY
RECEIVED A DEMAND OF THIS TYPE FROM A DIFFERENT SECURED PARTY.

[For other than residential tenants] IF YOU PAY RENT TO THE
LANDLORD THAT BY THE TERMS OF THIS DEMAND YOU ARE REQUIRED TO PAY TO
THE SECURED PARTY, YOU MAY BE SUBJECT TO DAMAGES INCURRED BY THE
SECURED PARTY BY REASON OF YOUR FAILURE TO COMPLY WITH THIS DEMAND,
AND YOU MAY NOT BE DISCHARGED FROM YOUR OBLIGATION TO PAY THAT RENT
TO THE SECURED PARTY. YOU WILL NOT BE SUBJECT TO THOSE DAMAGES OR
OBLIGATED TO PAY THAT RENT TO THE SECURED PARTY IF YOU HAVE
PREVIOUSLY RECEIVED A DEMAND OF THIS TYPE FROM A DIFFERENT ASSIGNEE.

Your obligation to pay rent under this demand shall continue until
you receive either (1) a written notice from a court directing you
to pay the rent in a manner provided therein, or (2) a written notice
from the secured party named above canceling this demand.

The undersigned hereby certifies, under penalty of perjury, that
the undersigned is an authorized officer or agent of the secured
party and that the secured party is the assignee, or the current
successor to the assignee, under an assignment of leases, rents,
issues, or profits executed by the landlord, or a predecessor in
interest, that is being enforced pursuant to and in accordance with
Section 2938 of the Civil Code.

Executed at _________, California, this ____ day of _________,
_____.

(Secured Party)
Name: __________________________
Title: _________________________

Discharge
2939. A recorded mortgage must be discharged by a certificate
signed by the mortgagee, his personal representatives or assigns,
acknowledged or proved and certified as prescribed by the chapter on
“recording transfers,” stating that the mortgage has been paid,
satisfied, or discharged. Reference shall be made in said certificate
to the book and page where the mortgage is recorded.

Discharge by Foreign Executor
2939.5. Foreign executors, administrators and guardians may satisfy
mortgages upon the records of any county in this state, upon
producing and recording in the office of the county recorder of the
county in which such mortgage is recorded, a duly certified and
authenticated copy of their letters testamentary, or of
administration or of guardianship, and which certificate or
authentication shall also recite that said letters have not been
revoked. For the purposes of this section, “guardian” includes a
foreign conservator, committee, or comparable fiduciary.

Discharge Certificate and Record Thereof
2940. A certificate of the discharge of a mortgage, and the proof
or acknowledgment thereof, must be recorded in the office of the
county recorder in which the mortgage is recorded.

Duty of Mortgagee to Execute Certificate of Discharge
2941. (a) Within 30 days after any mortgage has been satisfied, the
mortgagee or the assignee of the mortgagee shall execute a
certificate of the discharge thereof, as provided in Section 2939,
and shall record or cause to be recorded in the office of the county
recorder in which the mortgage is recorded. The mortgagee shall then
deliver, upon the written request of the mortgagor or the mortgagor’s
heirs, successors, or assignees, as the case may be, the original
note and mortgage to the person making the request.
(b) (1) Within 30 calendar days after the obligation secured by
any deed of trust has been satisfied, the beneficiary or the assignee
of the beneficiary shall execute and deliver to the trustee the
original note, deed of trust, request for a full reconveyance, and
other documents as may be necessary to reconvey, or cause to be
reconveyed, the deed of trust.
(A) The trustee shall execute the full reconveyance and shall
record or cause it to be recorded in the office of the county
recorder in which the deed of trust is recorded within 21 calendar
days after receipt by the trustee of the original note, deed of
trust, request for a full reconveyance, the fee that may be charged
pursuant to subdivision (e), recorder’s fees, and other documents as
may be necessary to reconvey, or cause to be reconveyed, the deed of
trust.
(B) The trustee shall deliver a copy of the reconveyance to the
beneficiary, its successor in interest, or its servicing agent, if
known. The reconveyance instrument shall specify one of the following
options for delivery of the instrument, the addresses of which the
recorder has no duty to validate:
(i) The trustor or successor in interest, and that person’s last
known address, as the person to whom the recorder will deliver the
recorded instrument pursuant to Section 27321 of the Government Code.
(ii) That the recorder shall deliver the recorded instrument to
the trustee’s address. If the trustee’s address is specified for
delivery, the trustee shall mail the recorded instrument to the
trustor or the successor in interest to the last known address for
that party.
(C) Following execution and recordation of the full reconveyance,
upon receipt of a written request by the trustor or the trustor’s
heirs, successors, or assignees, the trustee shall then deliver, or
caused to be delivered, the original note and deed of trust to the
person making that request.
(D) If the note or deed of trust, or any copy of the note or deed
of trust, is electronic, upon satisfaction of an obligation secured
by a deed of trust, any electronic original, or electronic copy which
has not been previously marked solely for use as a copy, of the note
and deed of trust, shall be altered to indicate that the obligation
is paid in full.
(2) If the trustee has failed to execute and record, or cause to
be recorded, the full reconveyance within 60 calendar days of
satisfaction of the obligation, the beneficiary, upon receipt of a
written request by the trustor or trustor’s heirs, successor in
interest, agent, or assignee, shall execute and acknowledge a
document pursuant to Section 2934a substituting itself or another as
trustee and issue a full reconveyance.
(3) If a full reconveyance has not been executed and recorded
pursuant to either paragraph (1) or paragraph (2) within 75 calendar
days of satisfaction of the obligation, then a title insurance
company may prepare and record a release of the obligation. However,
at least 10 days prior to the issuance and recording of a full
release pursuant to this paragraph, the title insurance company shall
mail by first-class mail with postage prepaid, the intention to
release the obligation to the trustee, trustor, and beneficiary of
record, or their successor in interest of record, at the last known
address.
(A) The release shall set forth:
(i) The name of the beneficiary.
(ii) The name of the trustor.
(iii) The recording reference to the deed of trust.
(iv) A recital that the obligation secured by the deed of trust
has been paid in full.
(v) The date and amount of payment.
(B) The release issued pursuant to this subdivision shall be
entitled to recordation and, when recorded, shall be deemed to be the
equivalent of a reconveyance of a deed of trust.
(4) Where an obligation secured by a deed of trust was paid in
full prior to July 1, 1989, and no reconveyance has been issued and
recorded by October 1, 1989, then a release of obligation as provided
for in paragraph (3) may be issued.
(5) Paragraphs (2) and (3) do not excuse the beneficiary or the
trustee from compliance with paragraph (1). Paragraph (3) does not
excuse the beneficiary from compliance with paragraph (2).
(6) In addition to any other remedy provided by law, a title
insurance company preparing or recording the release of the
obligation shall be liable to any party for damages, including
attorney’s fees, which any person may sustain by reason of the
issuance and recording of the release, pursuant to paragraphs (3) and
(4).
(7) A beneficiary may, at its discretion, in accordance with the
requirements and procedures of Section 2934a, substitute the title
company conducting the escrow through which the obligation is
satisfied for the trustee of record, in which case the title company
assumes the obligation of a trustee under this subdivision, and may
collect the fee authorized by subdivision (e).
(8) In lieu of delivering the original note and deed of trust to
the trustee within 30 days of loan satisfaction, as required by
paragraph (1) of subdivision (b), a beneficiary who executes and
delivers to the trustee a request for a full reconveyance within 30
days of loan satisfaction may, within 120 days of loan satisfaction,
deliver the original note and deed of trust to either the trustee or
trustor. If the note and deed of trust are delivered as provided in
this paragraph, upon satisfaction of the note and deed of trust, the
note and deed of trust shall be altered to indicate that the
obligation is paid in full. Nothing in this paragraph alters the
requirements and obligations set forth in paragraphs (2) and (3).
(c) For the purposes of this section, the phrases “cause to be
recorded” and “cause it to be recorded” include, but are not limited
to, sending by certified mail with the United States Postal Service
or by an independent courier service using its tracking service that
provides documentation of receipt and delivery, including the
signature of the recipient, the full reconveyance or certificate of
discharge in a recordable form, together with payment for all
required fees, in an envelope addressed to the county recorder’s
office of the county in which the deed of trust or mortgage is
recorded. Within two business days from the day of receipt, if
received in recordable form together with all required fees, the
county recorder shall stamp and record the full reconveyance or
certificate of discharge. Compliance with this subdivision shall
entitle the trustee to the benefit of the presumption found in
Section 641 of the Evidence Code.
(d) The violation of this section shall make the violator liable
to the person affected by the violation for all damages which that
person may sustain by reason of the violation, and shall require that
the violator forfeit to that person the sum of five hundred dollars
($500).
(e) (1) The trustee, beneficiary, or mortgagee may charge a
reasonable fee to the trustor or mortgagor, or the owner of the land,
as the case may be, for all services involved in the preparation,
execution, and recordation of the full reconveyance, including, but
not limited to, document preparation and forwarding services rendered
to effect the full reconveyance, and, in addition, may collect
official fees. This fee may be made payable no earlier than the
opening of a bona fide escrow or no more than 60 days prior to the
full satisfaction of the obligation secured by the deed of trust or
mortgage.
(2) If the fee charged pursuant to this subdivision does not
exceed forty-five dollars ($45), the fee is conclusively presumed to
be reasonable.
(3) The fee described in paragraph (1) may not be charged unless
demand for the fee was included in the payoff demand statement
described in Section 2943.
(f) For purposes of this section, “original” may include an
optically imaged reproduction when the following requirements are
met:
(1) The trustee receiving the request for reconveyance and
executing the reconveyance as provided in subdivision (b) is an
affiliate or subsidiary of the beneficiary or an affiliate or
subsidiary of the assignee of the beneficiary, respectively.
(2) The optical image storage media used to store the document
shall be nonerasable write once, read many (WORM) optical image media
that does not allow changes to the stored document.
(3) The optical image reproduction shall be made consistent with
the minimum standards of quality approved by either the National
Institute of Standards and Technology or the Association for
Information and Image Management.
(4) Written authentication identifying the optical image
reproduction as an unaltered copy of the note, deed of trust, or
mortgage shall be stamped or printed on the optical image
reproduction.
(g) No fee or charge may be imposed on the trustor in connection
with, or relating to, any act described in this section except as
expressly authorized by this section.
(h) The amendments to this section enacted at the 1999-2000
Regular Session shall apply only to a mortgage or an obligation
secured by a deed of trust that is satisfied on or after January 1,
2001.
(i) (1) In any action filed before January 1, 2002, that is
dismissed as a result of the amendments to this section enacted at
the 2001-02 Regular Session, the plaintiff shall not be required to
pay the defendant’s costs.
(2) Any claimant, including a claimant in a class action lawsuit,
whose claim is dismissed or barred as a result of the amendments to
this section enacted at the 2001-02 Regular Session, may, within 6
months of the dismissal or barring of the action or claim, file or
refile a claim for actual damages occurring before January 1, 2002,
that were proximately caused by a time lapse between loan
satisfaction and the completion of the beneficiary’s obligations as
required under paragraph (1) of subdivision (b). In any action
brought under this section, the defendant may be found liable for
actual damages, but may not be found liable for any civil penalty
authorized by Section 2941.
(j) Notwithstanding any other penalties, if a beneficiary collects
a fee for reconveyance and thereafter has knowledge, or should have
knowledge, that no reconveyance has been recorded, the beneficiary
shall cause to be recorded the reconveyance, or in the event a
release of obligation is earlier and timely recorded, the beneficiary
shall refund to the trustor the fee charged to perform the
reconveyance. Evidence of knowledge includes, but is not limited to,
notice of a release of obligation pursuant to paragraph (3) of
subdivision (b).

Reconveyance Fee
2941.1. Notwithstanding any other provision of law, if no payoff
demand statement is issued pursuant to Section 2943, nothing in
Section 2941 shall be construed to prohibit the charging of a
reconveyance fee.

Wilful Violation of Sec. 2941 a Misdemeanor
2941.5. Every person who willfully violates Section 2941 is guilty
of a misdemeanor punishable by fine of not less than fifty dollars
($50) nor more than four hundred dollars ($400), or by imprisonment
in the county jail for not to exceed six months, or by both such fine
and imprisonment.
For purposes of this section, “willfully” means simply a purpose
or willingness to commit the act, or make the omission referred to.
It does not require an intent to violate the law, to injure another,
or to acquire any advantage.

Corporate Bond Accompanied by Declaration
2941.7. Whenever the obligation secured by a mortgage or deed of
trust has been fully satisfied and the present mortgagee or
beneficiary of record cannot be located after diligent search, or
refuses to execute and deliver a proper certificate of discharge or
request for reconveyance, or whenever a specified balance, including
principal and interest, remains due and the mortgagor or trustor or
the mortgagor’s or trustor’s successor in interest cannot, after
diligent search, locate the then mortgagee or beneficiary of record,
the lien of any mortgage or deed of trust shall be released when the
mortgagor or trustor or the mortgagor’s or trustor’s successor in
interest records or causes to be recorded, in the office of the
county recorder of the county in which the encumbered property is
located, a corporate bond accompanied by a declaration, as specified
in subdivision (b), and with respect to a deed of trust, a
reconveyance as hereinafter provided.
(a) The bond shall be acceptable to the trustee and shall be
issued by a corporation lawfully authorized to issue surety bonds in
the State of California in a sum equal to the greater of either (1)
two times the amount of the original obligation secured by the
mortgage or deed of trust and any additional principal amounts,
including advances, shown in any recorded amendment thereto, or (2)
one-half of the total amount computed pursuant to (1) and any accrued
interest on such amount, and shall be conditioned for payment of any
sum which the mortgagee or beneficiary may recover in an action on
the obligation secured by the mortgage or deed of trust, with costs
of suit and reasonable attorneys’ fees. The obligees under the bond
shall be the mortgagee or mortgagee’s successor in interest or the
trustee who executes a reconveyance under this section and the
beneficiary or beneficiary’s successor in interest.
The bond recorded by the mortgagor or trustor or mortgagor’s or
trustor’s successor in interest shall contain the following
information describing the mortgage or deed of trust:
(1) Recording date and instrument number or book and page number
of the recorded instrument.
(2) Names of original mortgagor and mortgagee or trustor and
beneficiary.
(3) Amount shown as original principal sum secured thereby.
(4) The recording information and new principal amount shown in
any recorded amendment thereto.
(b) The declaration accompanying the corporate bond recorded by
the mortgagor or trustor or the mortgagor’s or trustor’s successor in
interest shall state:
(1) That it is recorded pursuant to this section.
(2) The name of the original mortgagor or trustor and mortgagee or
beneficiary.
(3) The name and address of the person making the declaration.
(4) That either the obligation secured by the mortgage or deed of
trust has been fully satisfied and the present mortgagee or
beneficiary of record cannot be located after diligent search, or
refuses to execute and deliver a proper certificate of discharge or
request for reconveyance as required under Section 2941; or that a
specified balance, including principal and interest, remains due and
the mortgagor or trustor or mortgagor’s or trustor’s successor in
interest cannot, after diligent search, locate the then mortgagee or
beneficiary.
(5) That the declarant has mailed by certified mail, return
receipt requested, to the last address of the person to whom payments
under the mortgage or deed of trust were made and to the last
mortgagee or beneficiary of record at the address for such mortgagee
or beneficiary shown on the instrument creating, assigning, or
conveying the interest, a notice of recording a declaration and bond
under this section and informing the recipient of the name and
address of the mortgagor or trustee, if any, and of the right to
record a written objection with respect to the release of the lien of
the mortgage or, with respect to a deed of trust, notify the trustee
in writing of any objection to the reconveyance of the deed of
trust. The declaration shall state the date any notices were mailed
pursuant to this section and the names and addresses of all persons
to whom mailed.
The declaration provided for in this section shall be signed by
the mortgagor or trustor under penalty of perjury.
(c) With respect to a deed of trust, after the expiration of 30
days following the recording of the corporate bond and accompanying
declaration provided in subdivisions (a) and (b), and delivery to the
trustee of the usual reconveyance fees plus costs and a demand for
reconveyance under this section, the trustee shall execute and
record, or otherwise deliver as provided in Section 2941, a
reconveyance in the same form as if the beneficiary had delivered to
the trustee a proper request for reconveyance, provided that the
trustee has not received a written objection to the reconveyance from
the beneficiary of record. No trustee shall have any liability to
any person by reason of its execution of a reconveyance in reliance
upon a trustor’s or trustor’s successor’s in interest substantial
compliance with this section. The sole remedy of any person damaged
by reason of the reconveyance shall be against the trustor, the
affiant, or the bond. With respect to a mortgage, a mortgage shall be
satisfied of record when 30 days have expired following recordation
of the corporate bond and accompanying declaration, provided no
objection to satisfaction has been recorded by the mortgagee within
that period. A bona fide purchaser or encumbrancer for value shall
take the interest conveyed free of such mortgage, provided there has
been compliance with subdivisions (a) and (b) and the deed to the
purchaser recites that no objections by the mortgagee have been
recorded.
Upon recording of a reconveyance under this section, or, in the
case of a mortgage the expiration of 30 days following recordation of
the corporate bond and accompanying declaration without objection
thereto having been recorded, interest shall no longer accrue as to
any balance remaining due to the extent the balance due has been
alleged in the declaration recorded under subdivision (b).
The sum of any specified balance, including principal and
interest, which remains due and which is remitted to any issuer of a
corporate bond in conjunction with the issuance of a bond pursuant to
this section shall, if unclaimed, escheat to the state after three
years pursuant to the Unclaimed Property Law. From the date of
escheat the issuer of the bond shall be relieved of any liability to
pay to the beneficiary or his or her heirs or other successors in
interest the escheated funds and the sole remedy shall be a claim for
property paid or delivered to the Controller pursuant to the
Unclaimed Property Law.
(d) The term “diligent search,” as used in this section, shall
mean all of the following:
(1) The mailing of notices as provided in paragraph (5) of
subdivision (b), and to any other address that the declarant has used
to correspond with or contact the mortgagee or beneficiary.
(2) A check of the telephone directory in the city where the
mortgagee or beneficiary maintained the mortgagee’s or beneficiary’s
last known address or place of business.
(3) In the event the mortgagee or beneficiary or the mortgagee’s
or beneficiary’s successor in interest is a corporation, a check of
the records of the California Secretary of State and the secretary of
state in the state of incorporation, if known.
(4) In the event the mortgagee or beneficiary is a state or
national bank or a state or federal savings and loan association, an
inquiry of the regulatory authority of such bank or savings and loan
association.
(e) This section shall not be deemed to create an exclusive
procedure for the issuance of reconveyances and the issuance of bonds
and declarations to release the lien of a mortgage and shall not
affect any other procedures, whether or not such procedures are set
forth in statute, for the issuance of reconveyances and the issuance
of bonds and declarations to release the lien of a mortgage.
(f) For purposes of this section, the trustor or trustor’s
successor in interest may substitute the present trustee of record
without conferring any duties upon the trustee other than those that
are incidental to the execution of a reconveyance pursuant to this
section if all of the following requirements are met:
(1) The present trustee of record and the present mortgagee or
beneficiary of record cannot be located after diligent search.
(2) The declaration filed pursuant to subdivision (b) shall state
in addition that it is filed pursuant to this subdivision, and shall,
in lieu of the provisions of paragraph (4) of subdivision (b), state
that the obligation secured by the mortgage or deed of trust has
been fully satisfied and the present trustee of record and present
mortgagee or beneficiary of record cannot be located after diligent
search.
(3) The substitute trustee is a title insurance company that
agrees to accept the substitution. This subdivision shall not impose
a duty upon a title insurance company to accept the substitution.
(4) The corporate bond required in subdivision (a) is for a period
of five or more years.

Agreement by all Beneficiaries Under Trust Deed to Be Governed by Beneficiaries Holding
More Than 50 Percent of Specified Interests
2941.9. (a) The purpose of this section is to establish a process
through which all of the beneficiaries under a trust deed may agree
to be governed by beneficiaries holding more than 50 percent of the
record beneficial interest of a series of notes secured by the same
real property or of undivided interests in a note secured by real
property equivalent to a series transaction, exclusive of any notes
or interests of a licensed real estate broker that is the issuer or
servicer of the notes or interests or any affiliate of that licensed
real estate broker.
(b) All holders of notes secured by the same real property or a
series of undivided interests in notes secured by real property
equivalent to a series transaction may agree in writing to be
governed by the desires of the holders of more than 50 percent of the
record beneficial interest of those notes or interests, exclusive of
any notes or interests of a licensed real estate broker that is the
issuer or servicer of the notes or interests of any affiliate of the
licensed real estate broker, with respect to actions to be taken on
behalf of all holders in the event of default or foreclosure for
matters that require direction or approval of the holders, including
designation of the broker, servicing agent, or other person acting on
their behalf, and the sale, encumbrance, or lease of real property
owned by the holders resulting from foreclosure or receipt of a deed
in lieu of foreclosure.
(c) A description of the agreement authorized in subdivision (b)
of this section shall be disclosed pursuant to Section 10232.5 of the
Business and Professions Code and shall be included in a recorded
document such as the deed of trust or the assignment of interests.
(d) Any action taken pursuant to the authority granted in this
section is not effective unless all the parties agreeing to the
action sign, under penalty of perjury, a separate written document
entitled “Majority Action Affidavit” stating the following:
(1) The action has been authorized pursuant to this section.
(2) None of the undersigned is a licensed real estate broker or an
affiliate of the broker that is the issuer or servicer of the
obligation secured by the deed of trust.
(3) The undersigned together hold more than 50 percent of the
record beneficial interest of a series of notes secured by the same
real property or of undivided interests in a note secured by real
property equivalent to a series transaction.
(4) Notice of the action was sent by certified mail, postage
prepaid, with return receipt requested, to each holder of an interest
in the obligation secured by the deed of trust who has not joined in
the execution of the substitution or this document.
This document shall be recorded in the office of the county
recorder of each county in which the real property described in the
deed of trust is located. Once the document in this subdivision is
recorded, it shall constitute conclusive evidence of compliance with
the requirements of this subdivision in favor of trustees acting
pursuant to this section, substituted trustees acting pursuant to
Section 2934a, subsequent assignees of the obligation secured by the
deed of trust, and subsequent bona fide purchasers or encumbrancers
for value of the real property described therein.
(e) For purposes of this section, “affiliate of the licensed real
estate broker” includes any person as defined in Section 25013 of the
Corporations Code who is controlled by, or is under common control
with, or who controls, a licensed real estate broker. “Control” means
the possession, direct or indirect, of the power to direct or cause
the direction of management and policies.

Statute Inapplicable to Bottomry
2942. Contracts of bottomry or respondentia, although in the nature
of mortgages, are not affected by any of the provisions of this
Chapter.

Statement of Unpaid Balance on Demand
2943. (a) As used in this section:
(1) “Beneficiary” means a mortgagee or beneficiary of a mortgage
or deed of trust, or his or her assignees.
(2) “Beneficiary statement” means a written statement showing:
(A) The amount of the unpaid balance of the obligation secured by
the mortgage or deed of trust and the interest rate, together with
the total amounts, if any, of all overdue installments of either
principal or interest, or both.
(B) The amounts of periodic payments, if any.
(C) The date on which the obligation is due in whole or in part.
(D) The date to which real estate taxes and special assessments
have been paid to the extent the information is known to the
beneficiary.
(E) The amount of hazard insurance in effect and the term and
premium of that insurance to the extent the information is known to
the beneficiary.
(F) The amount in an account, if any, maintained for the
accumulation of funds with which to pay taxes and insurance premiums.
(G) The nature and, if known, the amount of any additional
charges, costs, or expenses paid or incurred by the beneficiary which
have become a lien on the real property involved.
(H) Whether the obligation secured by the mortgage or deed of
trust can or may be transferred to a new borrower.
(3) “Delivery” means depositing or causing to be deposited in the
United States mail an envelope with postage prepaid, containing a
copy of the document to be delivered, addressed to the person whose
name and address is set forth in the demand therefor. The document
may also be transmitted by facsimile machine to the person whose name
and address is set forth in the demand therefor.
(4) “Entitled person” means the trustor or mortgagor of, or his or
her successor in interest in, the mortgaged or trust property or any
part thereof, any beneficiary under a deed of trust, any person
having a subordinate lien or encumbrance of record thereon, the
escrowholder licensed as an agent pursuant to Division 6 (commencing
with Section 17000) of the Financial Code, or the party exempt by
virtue of Section 17006 of the Financial Code who is acting as the
escrowholder.
(5) “Payoff demand statement” means a written statement, prepared
in response to a written demand made by an entitled person or
authorized agent, setting forth the amounts required as of the date
of preparation by the beneficiary, to fully satisfy all obligations
secured by the loan that is the subject of the payoff demand
statement. The written statement shall include information reasonably
necessary to calculate the payoff amount on a per diem basis for the
period of time, not to exceed 30 days, during which the per diem
amount is not changed by the terms of the note.
(6) “Short-pay agreement” means an agreement in writing in which
the beneficiary agrees to release its lien on a property in return
for payment of an amount less than the secured obligation.
(7) “Short-pay demand statement” means a written statement, issued
subsequent to and conditioned on the existence of a short-pay
agreement that is in possession of the entitled person, that is
prepared in response to a written demand made by an entitled person
or authorized agent, setting forth an amount less than the
outstanding debt, together with any terms and conditions, under which
the beneficiary will execute and deliver a reconveyance of the deed
of trust securing the note that is the subject of the short-pay
demand statement. The period shall not be greater than 30 days from
the date of preparation by the beneficiary.
(8) “Short-pay request” means a written request made by an
entitled person or authorized agent requesting the beneficiary to
provide a short-pay demand statement that includes all of the
following:
(A) A copy of an existing contract to purchase the property for an
amount certain.
(B) A copy of the short-pay agreement in the possession of the
entitled person.
(C) Information related to the release of any other liens on the
property, if any.
(b) (1) A beneficiary, or his or her authorized agent, shall,
within 21 days of the receipt of a written demand by an entitled
person or his or her authorized agent, prepare and deliver to the
person demanding it a true, correct, and complete copy of the note or
other evidence of indebtedness with any modification thereto, and a
beneficiary statement.
(2) A request pursuant to this subdivision may be made by an
entitled person or his or her authorized agent at any time before, or
within two months after, the recording of a notice of default under
a mortgage or deed of trust, or may otherwise be made more than 30
days prior to the entry of the decree of foreclosure.
(c) (1) A beneficiary, or his or her authorized agent, shall, on
the written demand of an entitled person, or his or her authorized
agent, prepare and deliver a payoff demand statement to the person
demanding it within 21 days of the receipt of the demand. However, if
the loan is subject to a recorded notice of default or a filed
complaint commencing a judicial foreclosure, the beneficiary shall
have no obligation to prepare and deliver this statement as
prescribed unless the written demand is received prior to the first
publication of a notice of sale or the notice of the first date of
sale established by a court.
(2) Except as provided in this subdivision, a beneficiary, or his
or her authorized agent, shall, upon receipt of a short-pay request,
prepare and deliver a short-pay demand statement to the person
requesting it within 21 days of the receipt of the short-pay request.
A beneficiary, or his or her authorized agent that elects not to
proceed with the transaction that is the subject of the short-pay
request may refuse to provide a short-pay demand statement for that
transaction, but shall provide a written statement to the person
requesting it, indicating that the beneficiary elects not to proceed
with the proposed transaction, within 21 days of the receipt of the
short-pay request. If the terms and conditions of the short-pay
agreement require approval by the beneficiary of a closing statement
or similar document prepared by an escrowholder, approval or
disapproval shall be provided not more than four days after receipt
by the beneficiary of the closing statement, or the closing statement
shall be deemed approved, provided that the statement is not clearly
contrary to the terms of the short-pay agreement or the short-pay
demand statement provided to the escrowholder.
(d) (1) A beneficiary statement, payoff demand statement, or
short-pay demand statement may be relied upon by the entitled person
or his or her authorized agent in accordance with its terms,
including with respect to the payoff demand statement or short-pay
demand statement reliance for the purpose of establishing the amount
necessary to pay the obligation in full. If the beneficiary notifies
the entitled person or his or her authorized agent of any amendment
to the statement, then the amended statement may be relied upon by
the entitled person or his or her authorized agent as provided in
this subdivision.
(2) If notification of any amendment to the statement is not given
in writing, then a written amendment to the statement shall be
delivered to the entitled person or his or her authorized agent no
later than the next business day after notification.
(3) Upon the dates specified in subparagraphs (A) and (B), any
sums that were due and for any reason not included in the statement
or amended statement shall continue to be recoverable by the
beneficiary as an unsecured obligation of the obligor pursuant to the
terms of the note and existing provisions of law.
(A) If the transaction is voluntary, the entitled party or his or
her authorized agent may rely upon the statement or amended statement
upon the earlier of (i) the close of escrow, (ii) transfer of title,
or (iii) recordation of a lien.
(B) If the loan is subject to a recorded notice of default or a
filed complaint commencing a judicial foreclosure, the entitled party
or his or her authorized agent may rely upon the statement or
amended statement upon the acceptance of the last and highest bid at
a trustee’s sale or a court supervised sale.
(e) The following provisions apply to a demand for either a
beneficiary statement, a payoff demand statement, or a short-pay
demand statement:
(1) If an entitled person or his or her authorized agent requests
a statement pursuant to this section and does not specify a
beneficiary statement, a payoff demand statement, or short-pay demand
statement the beneficiary shall treat the request as a request for a
payoff demand statement.
(2) If the entitled person or the entitled person’s authorized
agent includes in the written demand a specific request for a copy of
the deed of trust or mortgage, it shall be furnished with the
written statement at no additional charge.
(3) The beneficiary may, before delivering a statement, require
reasonable proof that the person making the demand is, in fact, an
entitled person or an authorized agent of an entitled person, in
which event the beneficiary shall not be subject to the penalties of
this section until 21 days after receipt of the proof herein provided
for. A statement in writing signed by the entitled person appointing
an authorized agent when delivered personally to the beneficiary or
delivered by registered return receipt mail shall constitute
reasonable proof as to the identity of an agent. Similar delivery of
a policy of title insurance, preliminary report issued by a title
company, original or photographic copy of a grant deed or certified
copy of letters testamentary, guardianship, or conservatorship shall
constitute reasonable proof as to the identity of a successor in
interest, provided the person demanding a statement is named as
successor in interest in the document.
(4) If a beneficiary for a period of 21 days after receipt of the
written demand willfully fails to prepare and deliver the statement,
he or she is liable to the entitled person for all damages which he
or she may sustain by reason of the refusal and, whether or not
actual damages are sustained, he or she shall forfeit to the entitled
person the sum of three hundred dollars ($300). Each failure to
prepare and deliver the statement, occurring at a time when, pursuant
to this section, the beneficiary is required to prepare and deliver
the statement, creates a separate cause of action, but a judgment
awarding an entitled person a forfeiture, or damages and forfeiture,
for any failure to prepare and deliver a statement bars recovery of
damages and forfeiture for any other failure to prepare and deliver a
statement, with respect to the same obligation, in compliance with a
demand therefor made within six months before or after the demand as
to which the award was made. For the purposes of this subdivision,
“willfully” means an intentional failure to comply with the
requirements of this section without just cause or excuse.
(5) If the beneficiary has more than one branch, office, or other
place of business, then the demand shall be made to the branch or
office address set forth in the payment billing notice or payment
book, and the statement, unless it specifies otherwise, shall be
deemed to apply only to the unpaid balance of the single obligation
named in the request and secured by the mortgage or deed of trust
which is payable at the branch or office whose address appears on the
aforesaid billing notice or payment book.
(6) The beneficiary may make a charge not to exceed thirty dollars
($30) for furnishing each required statement. The provisions of this
paragraph shall not apply to mortgages or deeds of trust insured by
the Federal Housing Administrator or guaranteed by the Administrator
of Veterans Affairs.
(f) The preparation and delivery of a beneficiary statement, a
payoff demand statement, or short-pay demand statement pursuant to
this section shall not change a date of sale established pursuant to
Section 2924g.
(g) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.

Statement of Unpaid Balance on Demand — Definitions
2943. (a) As used in this section:
(1) “Beneficiary” means a mortgagee or beneficiary of a mortgage
or deed of trust, or his or her assignees.
(2) “Beneficiary statement” means a written statement showing:
(A) The amount of the unpaid balance of the obligation secured by
the mortgage or deed of trust and the interest rate, together with
the total amounts, if any, of all overdue installments of either
principal or interest, or both.
(B) The amounts of periodic payments, if any.
(C) The date on which the obligation is due in whole or in part.
(D) The date to which real estate taxes and special assessments
have been paid to the extent the information is known to the
beneficiary.
(E) The amount of hazard insurance in effect and the term and
premium of that insurance to the extent the information is known to
the beneficiary.
(F) The amount in an account, if any, maintained for the
accumulation of funds with which to pay taxes and insurance premiums.
(G) The nature and, if known, the amount of any additional
charges, costs, or expenses paid or incurred by the beneficiary which
have become a lien on the real property involved.
(H) Whether the obligation secured by the mortgage or deed of
trust can or may be transferred to a new borrower.
(3) “Delivery” means depositing or causing to be deposited in the
United States mail an envelope with postage prepaid, containing a
copy of the document to be delivered, addressed to the person whose
name and address is set forth in the demand therefor. The document
may also be transmitted by facsimile machine to the person whose name
and address is set forth in the demand therefor.
(4) “Entitled person” means the trustor or mortgagor of, or his or
her successor in interest in, the mortgaged or trust property or any
part thereof, any beneficiary under a deed of trust, any person
having a subordinate lien or encumbrance of record thereon, the
escrowholder licensed as an agent pursuant to Division 6 (commencing
with Section 17000) of the Financial Code, or the party exempt by
virtue of Section 17006 of the Financial Code who is acting as the
escrowholder.
(5) “Payoff demand statement” means a written statement, prepared
in response to a written demand made by an entitled person or
authorized agent, setting forth the amounts required as of the date
of preparation by the beneficiary, to fully satisfy all obligations
secured by the loan that is the subject of the payoff demand
statement. The written statement shall include information reasonably
necessary to calculate the payoff amount on a per diem basis for the
period of time, not to exceed 30 days, during which the per diem
amount is not changed by the terms of the note.
(b) (1) A beneficiary, or his or her authorized agent, shall, within 21 days of the receipt of a written
demand by an entitled person or his or her authorized agent, prepare and deliver to the person
demanding it a true, correct, and complete copy of the note or other evidence of indebtedness with any
modification thereto, and a beneficiary statement.
(2) A request pursuant to this subdivision may be made by an entitled person or his or her authorized
agent at any time before, or within two months after, the recording of a notice of default under a
mortgage or deed of trust, or may otherwise be made more than 30 days prior to the entry of the decree
of foreclosure.
(c) A beneficiary, or his or her authorized agent, shall, on the written demand of an entitled person, or
his or her authorized agent, prepare and deliver a payoff demand statement to the person demanding it
within 21 days of the receipt of the demand. However, if the loan is subject to a recorded notice of
default or a filed complaint commencing a judicial foreclosure, the beneficiary shall have no obligation
to prepare and deliver this statement as prescribed unless the written demand is received prior to the
first publication of a notice of sale or the notice of the first date of sale established by a court.
(d) (1) A beneficiary statement or payoff demand statement may be relied upon by the entitled person or
his or her authorized agent in accordance with its terms, including with respect to the payoff demand
statement reliance for the purpose of establishing the amount necessary to pay the obligation in full. If
the beneficiary notifies the entitled person or his or her authorized agent of any amendment to the
statement, then the amended statement may be relied upon by the entitled person or his or her
authorized agent as provided in this subdivision.
(2) If notification of any amendment to the statement is not given in writing, then a written amendment to
the statement shall be delivered to the entitled person or his or her authorized agent no later than the
next business day after notification.
(3) Upon the dates specified in subparagraphs (A) and (B) any sums that were due and for any reason
not included in the statement or amended statement shall continue to be recoverable by the beneficiary
as an unsecured obligation of the obligor pursuant to the terms of the note and existing provisions of
law.
(A) If the transaction is voluntary, the entitled party or his or her authorized agent may rely upon the
statement or amended statement upon the earlier of (i) the close of escrow, (ii) transfer of title, or (iii)
recordation of a lien.
(B) If the loan is subject to a recorded notice of default or a filed complaint commencing a judicial
foreclosure, the entitled party or his or her authorized agent may rely upon the statement or amended
statement upon the acceptance of the last and highest bid at a trustee’s sale or a court supervised sale.
(e) The following provisions apply to a demand for either a beneficiary statement or a payoff demand
statement:
(1) If an entitled person or his or her authorized agent requests a statement pursuant to this section and
does not specify a beneficiary statement or a payoff demand statement the beneficiary shall treat the
request as a request for a payoff demand statement.
(2) If the entitled person or the entitled person’s authorized agent includes in the written demand a
specific request for a copy of the deed of trust or mortgage, it shall be furnished with the written
statement at no additional charge.
(3) The beneficiary may, before delivering a statement, require reasonable proof that the person making
the demand is, in fact, an entitled person or an authorized agent of an entitled person, in which event
the beneficiary shall not be subject to the penalties of this section until 21 days after receipt of the proof
herein provided for. A statement in writing signed by the entitled person appointing an authorized agent
when delivered personally to the beneficiary or delivered by registered return receipt mail shall
constitute reasonable proof as to the identity of an agent. Similar delivery of a policy of title insurance,
preliminary report issued by a title company, original or photographic copy of a grant deed or certified
copy of letters testamentary, guardianship, or conservatorship shall constitute reasonable proof as to
the identity of a successor in interest, provided the person demanding a statement is named as
successor in interest in the document.
(4) If a beneficiary for a period of 21 days after receipt of the written demand willfully fails to prepare
and deliver the statement, he or she is liable to the entitled person for all damages which he or she
may sustain by reason of the refusal and, whether or not actual damages are sustained, he or she shall
forfeit to the entitled person the sum of three hundred dollars ($300). Each failure to prepare and deliver
the statement, occurring at a time when, pursuant to this section, the beneficiary is required to prepare
and deliver the statement, creates a separate cause of action, but a judgment awarding an entitled
person a forfeiture, or damages and forfeiture, for any failure to prepare and deliver a statement bars
recovery of damages and forfeiture for any other failure to prepare and deliver a statement, with
respect to the same obligation, in compliance with a demand therefor made within six months before or
after the demand as to which the award was made. For the purposes of this subdivision, “willfully”
means an intentional failure to comply with the requirements of this section without just cause or
excuse.
(5) If the beneficiary has more than one branch, office, or other place of business, then the demand
shall be made to the branch or office address set forth in the payment billing notice or payment book,
and the statement, unless it specifies otherwise, shall be deemed to apply only to the unpaid balance of
the single obligation named in the request and secured by the mortgage or deed of trust which is
payable at the branch or office whose address appears on the aforesaid billing notice or payment book.
(6) The beneficiary may make a charge not to exceed thirty dollars ($30) for furnishing each required
statement. The provisions of this paragraph shall not apply to mortgages or deeds of trust insured by
the Federal Housing Administrator or guaranteed by the Administrator of Veterans Affairs.
(f) The preparation and delivery of a beneficiary statement or a payoff demand statement pursuant to this
section shall not change a date of sale established pursuant to Section 2924g.
(g) This section shall become operative on January 1, 2014.

Commercial code Transactions or Interests
2944. None of the provisions of this chapter applies to any transaction or security interest governed by
the Commercial Code, except to the extent made applicable by reason of an election made by the
secured party pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of Section 9604 of the
Commercial Code.

Refusal to Accept Policy Issued for Continuous Period Without Fixed Expiration Date
Prohibited
2944.5. No lender, mortgagee, or any third party having an interest in real or personal property shall
refuse to accept a policy issued by an admitted insurer solely because the policy is issued for a
continuous period without a fixed expiration date even though the policy premium is due and payable
every six months, provided the lender, mortgagee, or third party is entitled to receive (a) notice
of renewal from the insurer within 15 days of receipt of payment on the policy by the insured or (b)
notice of cancellation or nonrenewal under the terms and conditions set forth in Sections 678 and
2074.8 of the Insurance Code, whichever is applicable.

Loan Modification by Third Party
2944.6. (a) Notwithstanding any other provision of law, any person who negotiates, attempts to
negotiate, arranges, attempts to arrange, or otherwise offers to perform a mortgage loan modification or
other form of mortgage loan forbearance for a fee or other compensation paid by the borrower, shall
provide the following to the borrower, as a separate statement, in not less than 14-point bold type, prior
to entering into any fee agreement with the borrower:
It is not necessary to pay a third party to arrange for a loan modification or other form of forbearance
from your mortgage lender or servicer. You may call your lender directly to ask for a change in
your loan terms. Nonprofit housing counseling agencies also offer these and other forms of borrower
assistance free of charge. A list of nonprofit housing counseling agencies approved by the United
States Department of Housing and Urban Development (HUD) is available from your local HUD office or
by visiting http://www.hud.gov.
(b) If loan modification or other mortgage loan forbearance services are offered or negotiated in one of
the languages set forth in Section 1632, a translated copy of the statement in subdivision (a) shall be
provided to the borrower in that foreign language.
(c) A violation of this section by a natural person is a public offense punishable by a fine not exceeding
ten thousand dollars ($10,000), by imprisonment in the county jail for a term not to exceed one year, or
by both that fine and imprisonment, or if by a business entity, the violation is punishable by a fine not
exceeding fifty thousand dollars ($50,000). These penalties are cumulative to
any other remedies or penalties provided by law. (d) This section does not apply to a person, or an
agent acting on that person’s behalf, offering loan modification or other loan forbearance services for a
loan owned or serviced by that person.
(e) This section shall apply only to mortgages and deeds of trust secured by residential real property
containing four or fewer dwelling units.

2944.7. (a) Notwithstanding any other provision of law, it shall be unlawful for any person who
negotiates, attempts to negotiate, arranges, attempts to arrange, or otherwise offers to perform a
mortgage loan modification or other form of mortgage loan forbearance for a fee or other compensation
paid by the borrower, to do any of the following:
(1) Claim, demand, charge, collect, or receive any compensation until after the person has fully
performed each and every service the person contracted to perform or represented that he or she
would perform.
(2) Take any wage assignment, any lien of any type on real or personal property, or other security to
secure the payment of compensation.
(3) Take any power of attorney from the borrower for any purpose.
(b) A violation of this section by a natural person is a public offense punishable by a fine not exceeding
ten thousand dollars ($10,000), by imprisonment in the county jail for a term not to
exceed one year, or by both that fine and imprisonment, or if by a business entity, the violation is
punishable by a fine not exceeding fifty thousand dollars ($50,000). These penalties are cumulative to
any other remedies or penalties provided by law.
(c) Nothing in this section precludes a person, or an agent acting on that person’s behalf, who offers
loan modification or other loan forbearance services for a loan owned or serviced by that person,
from doing any of the following:
(1) Collecting principal, interest, or other charges under the terms of a loan, before the loan is modified,
including charges to establish a new payment schedule for a nondelinquent loan, after the
borrower reduces the unpaid principal balance of that loan for the express purpose of lowering the
monthly payment due under the terms of the loan.
(2) Collecting principal, interest, or other charges under the terms of a loan, after the loan is modified.
(3) Accepting payment from a federal agency in connection with the federal Making Home Affordable
Plan or other federal plan intended to help borrowers refinance or modify their loans or otherwise avoid
foreclosures.
(d) This section shall apply only to mortgages and deeds of trust secured by residential real property
containing four or fewer dwelling units.
(e) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless
a later enacted statute, that is enacted before January 1, 2013, deletes or extends
that date.

2932.5 ruling

Deutsche Bank National Trust Company (Deutsche Bank),

as Trustee for WaMu Series 2007-HEl Trust, its assignees

and/or successors (HEl Trust), moved for relief from the

automatic stay to proceed with foreclosure proceedings on

Debtors’ residence (Property). It is undisputed that the

claim asserted by Deutsche Bank on behalf of HEl Trust

exceeds the fair market value of the Property. The Debtors

filed no opposition and have indicated an intention to

surrender the Property. The Trustee opposed the motion on

the grounds that Deutsche Bank lacks standing in that

Deutsche Bank had failed to establish that it or HEl Trust,

the party represented thereby, held a perfected security

interest in the Property.

Because the Court finds that Deutsche Bank has failed

to provide evidence that it, let alone HEl Trust, has a

security interest in the Property, the Court denies the

motion for relief from stay without prejudice.

This Court has subject matter jurisdiction over the

proceeding pursuant to 28 U.S.C. § 1334 and General Order

No. 312-D of the United States District Court for the Southern

District of California. This is a core proceeding under

28 U.S.C. § 157(b) (2) (A) & (G).

BACKGROUND

On or about November 8, 2006, Debtors borrowed money from

WAMU and executed a promissory note in favor of WAMU of the same

date (Note). Debtors also executed a deed of trust granting

WAMU a security interest in the Property (Deed of Trust). On

December 17, 2007 Debtors filed a petition commencing this

bankruptcy case. According to Debtors’ schedules, the value of

the Property ($863,931.00) was less than the amount owed on the

Note and secured by the Deed of Trust ($998,016.00). Debtors’

schedules list WAMU as the secured creditor on the Property.

Debtors indicated their intention to surrender the Property.

On January 25, 2008, Deutsche Bank, “as Trustee for” HE1

Trust, moved for relief from stay to proceed with foreclosure on

the Property. In support of the motion Deutsche Bank submitted a

declaration of Lori Brecheen – an officer of WAMU “as Servicing

Agent for Movant.” The declaration included a copy of the Deed

of Trust and the Note. The Deed of Trust lists WAMU as the

beneficiary and “California Reconveyance Company” as the

“Trustee.” The Promissory Note lists WAMU as the Lender and

payee.

As noted, the Debtors did not oppose the motion, but the

Trustee did on the ground that Deutsche Bank failed to establish

that it had standing to bring the motion because it had failed to

prove that it had a perfected lien against the Property.

In the Reply to the Trustee’s opposition, Deutsche Bank

asserts that it is the “current beneficiary of a promissory note

and deed of trust by way of assignment … ” In a subsequent

declaration, Ms. Brecheen declared that WAMU “transferred the

NOTE and DEED OF TRUST to DEUTSCHE BANK.” She went on to explain

that since transferring the Note and Deed of Trust, WAMU has

acted as servicing agent for Deutsche Bank on the loan. As agent

for Deutsche Bank, WAMU was in possession of the Note, as

endorsed to Deutsche Bank. Attached to the supplemental

declaration was a copy of the Note with an added page with what

Ms. Brecheen contends is the endorsement. As discussed below, it

is simply a stamp signed by a vice president of WAMU reading “Pay

to the order of ” – the space for payees is left blank.

The Court held a hearing on the matter and took it under

submission.

DISCUSSION

It is undisputed that the subject Property is, as the saying

goes, underwater. All parties seem to agree that the claim

secured by the Property exceeds the value of the Property. The

Debtors are prepared to abandon the Property. The only issue

before the Court is whether Deutsche Bank is in a position to

seek relief from the stay.

Bankruptcy Code section 362(d) provides for relief from stay

on request of a “party in interest.” Party in interest for the

purposes of a motion for relief from stay is not defined.

However, the Court agrees with the court in In re Maisel, that

“[a] party seeking relief from the automatic stay to exercise

rights as to property must demonstrate at least a colorable claim

to the property.” 378 B.R. 19, 21 (Bankr.D.Mass. 2007) (citing In

re Huggins, 357 B.R. 180, 185 (Bankr.D.Mass. 2006). That is,

since Deutsche Bank seeks relief from stay to proceed against the

Property, it must establish that it, or more accurately the party

it represents, HE1 Trust, has a security interest in such

property. As movant, Deutsche Bank has the responsibility to

convince the Court that the party seeking relief from the stay

with respect to the Property has an interest in the Property.

Deutsche Bank has failed to do so.

In support of the motion, Deutsche Bank has provided the

copies of the original Note and Deed of Trust. However, both the

undisputed that WAMU held a security interest in the Property by

virtue of the Deed of Trust, Deutsche Bank has provided no

evidence at all that any interest in the Deed of Trust was ever

assigned from WAMU to Deutsche Bank, or to anyone else for that

matter. In her supplemental declaration Ms. Brecheen declares

that the Deed of Trust was “transferred” to Deutsche Bank.

However, Deutsche Bank has provided no authority (and the Court

is aware of none) for the apparent proposition that transfer of

the Deed of Trust without assignment, let alone recordation, is

sufficient to give Deutsche Bank or HEl Trust a security interest

in the Property. As it stands on the record before the Court,

the Deed of Trust remains in the name (and possession) of WAMU. 1

Nothing in the Deed of Trust as written or in the way in which it

has been handled gives any indication that Deutsche Bank or HEl

Trust has a security interest in the Property. Not surprisingly

therefor, Deutsche Bank focuses the Court’s attention on the

Note.

The Note too runs solely in favor of WAMU. The copy of the

Note produced in connection with the Motion gave no indication

that anyone but WAMU had an interest therein. In response to the

Trustee’s opposition, Deutsche Bank eventually produced a copy of

the Note with an additional, unnumbered, undated page attached,

which appears to been endorsement by WAMU. However, the “Pay to

the order of” line of the endorsement is blank. There is no

indication from the face of the Note as endorsed that it was

endorsed to Deutsche Bank and/or HEl Trust.

The sole evidence that Deutsche Bank provides which would

indicate to the Court that Deutsche Bank might have any interest

at all in the Property, is the supplemental declaration of

Ms. Brecheen that the Note had been transferred to Deutsche Bank.

Assuming for the sake of argument that this “transfer” amounts to

an “assignment,” such an assignment of the Note appears to be

sufficient under California to give Deutsche Bank a security

interest in the Property.

California Civil Code § 2932.5 provides:

Where a power to sell real property is given to a

mortgagee, or other encumbrancer, in an instrument

intended to secure the payment of money, the power is

part of the security and vests in any person who by

assignment becomes entitled to payment of the money

secured by the instrument. The power of sale may be

exercised by the assignee if the assignment is duly

acknowledged and recorded.

The Court is aware of no California case law interpreting this

section. However, it appears to indicate that a security

interest runs with the obligation – in terms of the case at hand,

that is, an assignment of the Note amounts to an assignment of

the Deed of Trust. 2 However, as indicated, Deutsche Bank has

provided no convincing evidence that the Note was ever assigned

to Deutsche Bank. Furthermore, even if the Note was assigned to

Deutsche Bank, Deutsche Bank is not the party asserting a

security interest in the Property. Rather, the motion is brought

by Deutsche Bank as Trustee for HEI Trust. The record is devoid

of any further assignment to HEI Trust.

In summary, the only question before this Court is whether

Deutsche Bank and/or HEI Trust has an interest in the Property.

The Court holds that Deutsche Bank has failed to provide evidence

that it, let alone HEI Trust, has a security interest in the

Property. 3 Accordingly, the motion is denied.

The Trustee argues that based upon the last line of § 2932.5 Deutsche Bank may not

foreclose on the Property because the assignment was not recorded. That may well be.

However, that is an issue the Trustee can raise with the state court if relief from stay is ultimately

granted.

Both parties allotted much ink and paper to the issue of whether Deutsche Bank has a

perfected security interest in the Note. The Court finds this discussion beyond the scope of the

motion before it. Deutsche Bank has moved for relief from stay to proceed against the Property.

Whether or not it holds a security interest in the Note is irrelevant. Since we are not concerned

with a security interest in the Note, all talk of a “perfected lien” on the Note is beside the point.

CONCLUSION

For the reasons set forth above Deutsche Bank’s motion for

relief from stay is denied without prejudice.

IT IS SO ORDERED.

DATE: JUN – 9 2008

PE ER W. BOWIE, Chief Judge

United States Bankruptcy Court

Understanding California Civil Code Section 2932.5.

Can a lender or their agent (ex, the loan servicer) pursue a non-judicial foreclose on real property via exercising the power of sale contained in the deed of trust, if the alleged creditor has only the note and no assignment and recording of the deed of trust (the security for payment of the note)?
Posted by Foreclosure Defense Attorney Steve Vondran on July 18, 2010 · Leave a Comment

Can a lender or their agent (ex, the loan servicer) pursue a non-judicial foreclose on real property via exercising the power of sale contained in the deed of trust, if the alleged creditor has only the note and no assignment and recording of the deed of trust (the security for payment of the note)? Understanding California Civil Code Section 2932.5.

This article is general legal information only and not intended to serve as legal advice or a substitute for legal advice. As law is constantly changing and evolving, the information may not be 100% complete, accurate or up-to-date. For specific questions about your legal liability in regard to junior loans, please contact a skilled and experienced real estate or foreclosure defense lawyer.

Steve Vondran is a California Real Estate Lawyer who is licensed to practice law in California and Arizona. He also holds a real estate broker’s license in California and Arizona and has a background in mortgage brokering and commercial real estate. HE can be reached at steve@vondranlaw.com or (877) 276-5084 begin_of_the_skype_highlighting (877) 276-5084 end_of_the_skype_highlighting.

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First, let’s get some general rules on the table that lenders and their attorneys will rely on when seeking to foreclose on your property:

(1) There is no obligation to produce the original note if a lender seeks to conduct a private trustee sale (i.e. a non-judicial foreclosure that relies on the power of sale contained in the deed of trust). In other words, do not try to file for an injunction in a court of law to fight the lender and challenge whether or not they own the loan, because you have no right to ask who is foreclosing on you in a private sale. Sad yes, but such is the law. Therefore, in a non-judicial foreclosure setting, there is no way to force them to prove they are in fact your creditor with the right to foreclose. Their mere allegation that they have the note is all they need if you challenge them at this stage, and do not expect the judge to rule otherwise.

See our Blog posting on this page for more details: http://www.foreclosuredefenseresourcecenter.com/2010/03/can-a-california-homeowner-demand-that-the-lender-or-loan-servicer-produce-the-note-as-a-foreclosure-defense-strategy/.

(2) In support of their right to foreclose non-judicially, lenders like to use the “security follows the note” argument and line of cases to support their position that if they merely allege that they have the note, then that must also mean they have the security interest (i.e. the deed of trust or mortgage) whether or not the security interest is/was specifically assigned to them – normally by MERS who originally records the security interest in as many as 60 million mortgages across the United States. For this proposition they usually cite two cases: (a) Carpenter v. Longan, 83 U.S. 271, 275 (1873); and (b) Restatement Third of Property (Mortgages) Section 5.4 (1997). Note that these pre-date most loan securitization.

LONGAN: In Longan the United States Supreme Court held: “The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” Note, this case says only that assigning the note also assigns the security (i.e. the right to foreclose). The case does NOT say that the POWER OF SALE is also assigned when a note is assigned. This is important, because without the power of sale, a lender should be relegated to conducting a JUDICIAL FORECLOSURE SALE AND NOT A PRIVATE TRUSTEE SALE USING THE POWER OF SALE.

RESTATMENT: It appears to be the general rule in California that the transfer of a mortgage note transfers with it the related mortgage – “the mortgage follows the note” as they say. The RESTATEMENT (THIRD) OF PROPERTY (MORTGAGES) § 5.4 (1997), relied on by many lenders in their briefs, states: “a transfer of an obligation secured by a mortgage also transfers the mortgage unless the parties to the transfer agree otherwise.” The rationale is to avoid economic waste to the lender and avoid a windfall to the borrower if the note and mortgage are split – rendering the mortgage note unsecured. The Restatement also cites the case of Carpenter v. Longan, 83 U.S. 271 (1827) “all the authorities agree that the debt is the principal thing and the mortgage an accessory.”

These cases seem to give the lenders wide latitude to just merely claim they own the note (they never want to show it) and have the Court agree that the security naturally follows (whether or not the deed of trust was assigned, acknowledged, and recorded) and that the lender therefore has standing to lift a stay in bankruptcy court. If the lender can show proof of the original promissory note in the BK lift-stay motion, I would say I might agree. But again, they will not want to show the note, and it is up to the BK judge to demand they show this critical piece of evidence before they allow a creditor to lift the automatic stay. If you want legal authority take a look at In re Hwang, 396 B.R. 757 (C.D. California 2008. I have attached a link to my case brief on this important case: http://www.producethenoteattorney.com/2010/05/in-re-hwang-an-overview-of-motion-for-relief-from-automatic-stay-real-party-in-interest-and-constitutional-standing-requirements-in-a-california-bankruptcy-court/

But is the same true if a homeowner files for an injunction trying to prevent a lender from conducting a non-judicial foreclosure sale where there is simply no proof the lender has physical possession of the note and the chain of title does not indicate any assignment or recording of the deed of trust (i.e. the power of private sale never conveyed per 2932.5)?

Applying Constitutional law standards, States are always free to grant more rights and freedoms that the United States Supreme Court may grant, but states cannot provide less. I would argue that is what California did when it enacted Civil Code Section 2932.5 by requiring an actual assignment and recording of the deed of trust if the lender/mortgagee wants to exercise the power of sale and conduct a private trustee sale – Notice of Default / Notice of Sale – outside the watchful eye of the Court (as would be required in a judicial sale). In other words, if a lender wants to foreclose in a non-judicial private trustee sale fashion, it would seem they need both the endorsed note and physical possession of such – or, physical possession of the note endorsed in blank – AND the assignment of the deed of trust duly acknowledged and recorded as required under California Civil Code Section 2932.5. Without both, I would argue a lender is relegated to a judicial foreclosure sale only, and the Court should enjoin the attempted and threatened private trustee sale. At least that is my honest opinion and it would be great if it worked out that way. There is not a lot of case law on this curious code section.

Let’s take a look at 2932.5 and tell me if you agree. First off, here is a link to the law I am talking about so we can all take a look at it. It is short and sweet so do not be intimidated. http://law.onecle.com/california/civil/2932.5.html I have pasted the law below if you are the type of person who hates opening up links:

“Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.”

Looks to me like the power of sale (i.e. the right to pursue a private judicial foreclosure sale) requires an assignment of the deed of trust and recording of such in the County recorder’s office. If that is not what this law means, then what does it mean? In other words, if a lender conducts a private trustee sale and the chain of title reflects that there has been no assignment or recording of the deed by that lender or its agent, wouldn’t that make the private sale voidable and subject to set aside? See our blog piece on the “lender please don’t make me tender” rule before you get excited. Here is a link to that post.

http://www.foreclosuredefenseresourcecenter.com/2010/03/phoenix-foreclosure-lawyer/

Bolstering this position that the deed of trust must be assigned, acknowledged, and recorded before exercising the private power of sale in California is the case of Strike v. Transwest Discount Corp, 92 CA3d, 735 (1979). In this case the court held:

“A recorded assignment of note and deed of trust vests in the assignee all of the rights, interests of the beneficiary (Musgrave v. Renkin, 180 Cal. 785 [183 P. 145]) including authority to exercise any power of sale given the beneficiary (Civ. Code, § 858)…… The power of sale here derived from the instrument itself. (Civ. Code, § 2932; McDonald v. Smoke Creek Live Stock, 209 Cal. 231).”

Therefore, I would think you have at least a fair argument that a lender seeking to foreclose non-judicially, outside the Courts presence (as in a judicial foreclosure), that they would need to be able to establish that the deed of trust was properly assigned and recorded in addition to owning the note, although as discussed above they don’t have to show the note. If there is no proof of recorded assignment of the security in the County Recorder’s office, I would argue the lender has only the right to foreclose judicially (subject to a four year statute of limitations**), and by filing the Notice of Sale and Notice of Default, the lender has indicated that they are not willing to go that route. The problem is, if you filed for an injunction, they would probably just quickly assign and record the deed of trust killing the argument altogether. If any one else has any other opinions or interpretations, or even case law, I would love to see/hear it.

** There are time limits to file a judicial foreclosure as stated in the case of Aviel v. Ng, 161 Cal.App.4th 809, (2008) where the Court held: “The running of the statute of limitations on an obligation underlying a mortgage or deed of trust bars judicial foreclosure of the mortgage as well as an action to enforce the obligation. Cal.Civ.Code § 2911(1).”

For now, suffice it to say, this might be something to look into or argue if you are going all out and trying to save your home from foreclosure. Before filing any civil lawsuit, you should consult with a real estate or foreclosure lawyer to determine whether you have proper legal grounds to file a lawsuit.

One way this popped up in a bankruptcy case was the lender sought to record the assignment of the deed of trust while the borrower was in bankruptcy court and protected by the automatic stay. We are arguing that this is an attempt to perfect its right to non-judicially foreclose (i.e. they are trying to comply with 2932.5 to get the right to foreclose non-judicially) and that such action to perfect its interest violates Bankruptcy Code Section 362 which prohibits the following:

(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;

(4) any act to create, perfect, or enforce any lien against property of the estate;

(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;

(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;

Again, just trying to give you some things to think about as you fight to save your home from foreclosure. Although the security may follow the note and that may be fine to judicially foreclose, perhaps that security interest must be assigned, acknowledged and recorded in order to preserve the right to conduct the private non-judicial trustee sale under the power of sale contained in the security. The deed of trust itself may also have some language you need to look at that that may dictate other rights.

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NOTICE: The foregoing information is general legal information only and shall not be relied upon as legal advice, or a substitution for legal advice. If you have specific legal questions about your foreclosure case you should seek out the advice of a real estate attorney. In addition, the information posted above may not be 100% complete, accurate or up-to-date. Law is always changing. The Law Offices of Steve Vondran is licensed to practice law in the state of Arizona and California and only seeks to solicit and serve Clients in these two states. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona. He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084 begin_of_the_skype_highlighting (877) 276-5084 end_of_the_skype_highlighting. This is an advertisement and communication pursuant to State Bar Rules. Please do not send us private or confidential information through any of our above-listed websites. Sending us an email does not create an attorney-client relationship (only signing a legal retainer will do this). Copyright 2010 – Law Offices of Steven C. Vondran – All Rights Reserved.

BASIC OVERVIEW OF TAKING A DEFAULT JUDGMENT IN CALIFORNIA WHERE A LENDER, LOAN SERVICER, HOMEOWNER, REAL ESTATE BROKER, OR INVESTOR FAILS TO ANSWER A REAL ESTATE COMPLAINT

Posted by Foreclosure Defense Attorney Steve Vondran on September 11, 2010 · Leave a Comment

The following is general legal information only and not intended as legal advice or a substitute for obtaining legal advice. For specific answers to your questions please consult a real estate attorney. Steve Vondran, Esq., is a real estate attorney licensed to practice law in California and Arizona. He can be reached at steve@vondranlaw.com or by phone at (877) 276-5084 begin_of_the_skype_highlighting (877) 276-5084 end_of_the_skype_highlighting. There is no representation that this article is 100% accurate or up-to-date as the law is constantly evolving.

INTRODUCTION

When we file lawsuits alleging predatory lending, truth in lending violations, RESPA violations, unfair competition, fraud, misrepresentation and the like and seeking money damages, loan rescission, quiet title and other remedies, sometimes the Defendants fail to respond. When the lenders, investors, loan servicers, MERS, or others fail to answer (which does happen from time to time) the next step is to “take a default” against them. The following is the process we normally follow in handling our cases. This usually involves two steps: (1) Filing the entry of default and (2) the “prove-up” stage. This article discusses an overview of the general process. It may vary depending on the type of case, causes of action alleged, the court’s rules, etc.

OVERVIEW OF STEPS REQUIRED TO TAKE A DEFAULT JUDGMENT IN CALIFORNIA

1. First, after the Defendant fails to respond to a complaint within the time permitted a document must be filed with the Court to get them to enter the default of that Defendant. Here is a look at the judicial counsel form we use for that purpose: http://www.courtinfo.ca.gov/forms/fillable/civ100.pdf

NOTE: If your case involves a simple contract issue, the Clerk may be able to enter that judgement. In most other cases, you will need to proceed to the steps listed below.

1. Next, after the Court enters the Default of the Defendant, within 45 days a similar application to the court is made to actually get the Default Judgement against the non-answering defendants. This application will use the same form above, except we check the “court judgment” box and “I request a court judgment.” At this point, it is also wise to check with the Court clerk to see how the judge hears default judgments. Some Courts want oral evidence for example, and some would prefer to hear the case on affidavits, declarations, exhibits, etc. and not to hear live testimony. So we check with the Court to figure this out. In Quiet Title, or Fraud Real Estate actions, it is likely the Court will at some point require an oral prove up hearing with live testimony.
2. At any rate, it is time to fill out the form and basically time to bring the evidence forward to prove the case against the non-answering defendant and to obtain a monetary judgment in according to proof and “for sums which appear just”.

NOTE: When seeking a default it is important to note that we cannot obtain a default judgment in an amount in excess of sought in the complaint and cannot add new causes of action that were not raised in the complaint. This highlights the importance of having a well-plead complaint which must also be sufficient to raise facts constituting a prima facie case as to each cause of action for the Court will not award a defaul if the facts don’t meet the elements required for a particular cause of action. HERE IS LINK TO RULE 3.1800 CALIFORNIA RULES OF COURT IN REGARD TO DEFAULT JUDGEMENTS AND WHAT IS NEEDED. http://www.courtinfo.ca.gov/rules/index.cfm?title=three&linkid=rule3_1800.

AS YOU CAN SEE THERE IS A VERY SPECIFIC SET OF REQUIREMENTS TO OBTAIN THE DEFAULT JUDGMENT INCLUDING:

● Declarations under penalty of perjury

● Any Documentary Evidence or Exhibits which which are admissible as evidence

● Case Summary

● Declaration of Counsel in support of Application for Default Judgement by Court

● Legal Basis for any Attorney Fees requested (check with the Court to see if they have a Attorney fee schedule which may set forth maximum amounts that may be requested)

● Any interest calculations such as “per diem to date of entry of judgment.”

● Memorandum of Costs

● Declaration that Defendant is non-military

● Proposed form of Judgment

● Dismissal of parties to which a judgment is not sought

● Proof of publication if the defendant(s) were served (Summons and Complaint) by publication. (ex. State in a declaration that Publication Rules were complied with).

ALSO NOTE: California Code of Civil Procedure Sectoin 587 which states:
An application by a plaintiff for entry of default under

subdivision (a), (b), or (c) of Section 585 or Section 586 shall

include an affidavit stating that a copy of the application has been

mailed to the defendant’s attorney of record or, if none, to the

defendant at his or her last known address and the date on which the

copy was mailed. If no such address of the defendant is known to the

plaintiff or plaintiff’s attorney, the affidavit shall state that

fact.

NOTE: As you can see there are very strict requirements to getting a default judgement. If certain steps in the entire process are not followed, Default Judgments, even if obtained (note there is no guarantee a default judgment will ultimately be obtained, or be obtained in the amounts requested just because the Defendant fails to appear – the case and amounts have to be proven) can be subject to appeal or collateral attack.

Local rules always come into play when seeking default judgement. Ex. Here are the local rules for Los Angeles: http://www.lasuperiorcourt.org/courtrules/ui/popup.aspx?ch=Chap9&tab=2

SOME COMMON GROUNDS FOR ATTACKING OR APPEALING A DEFAULT JUDGEMENT ARE:

(a) Court lacked jurisdiction to hear case or render a judgment.

(b) Improper service of summons and complaint (no reasonable attempt to give actual notice of the lawsuit to defendant).

(d) New causes of action (not set forth in the complaint) were raised at the prove up stage.

(e) Relief requested and granted at prove-up exceeded relief asked for in the complaint.

(f) Insufficnency of Evidence that lead to Default Judgment

(g) Default was taken against Defendant (but another Defendant who answered the complaint was found not liable which would also make Defandant not liable – ex. Defendants were two partners who were sued in regards to partnership activities and the answering defendant proved there was no legal violations).

SO, THE BOTTOM LINE IS THERE NEEDS TO BE A WELL PLEAD COMPLAINT BEFORE SEEKING A DEFAULT JUDGMENT, INCLUDING SETTING FORTH THE AMOUNTS SOUGHT AND THE FACTUAL SUPPORT FOR THE CAUSES OF ACTION PLED. WHEN THE DEFENDANTS DON’T ANSWER ON TIME THERE IS A SPECIFIC PROCEDURE THAT MUST BE FOLLOWED TO TAKE THE DEFAULT AND PROVE IT UP. FAILURE TO TAKE THE PROPER STEPS AT ALL STAGES COULD RESULT IN AN ATTACK ON THE JUDGEMENT.

Foreclosure proof homes ? !!!

forclosure proof homes

never stipulate to the Commissioner HERE’S WHY Listen

never stipulate to the Commissioner HERE’S WHY ListenFannie Mae v Cabesas – Jul 9 10

The Ultimate Question of the “Who”? (And this is Not About the Band)

This is a guest post by G. Alex Morfesis and edited by Max.
The current trend in the mortgage business in dealing with the foreclosure mess and the plague of bogus affidavits and other legal documents is to shout out as loudly as humanly possible that “we should not give the borrowers a free home” because they signed the mortgage notes and received the funds to buy their homes so they must owe the money! How can they deny they owe the money? And yes, it is certainly true that the funds are owed to someone; that the mortgage notes are somewhere; and that someone in some place actually and lawfully owns the notes. The real question is WHO are these parties? WHO lawfully owns and holds the mortgage notes? WHO will actually lose money if the $400,000 home is sold at foreclosure for $150,000? WHO has some real skin in this game that will be scrapped to the bone in a forced foreclosure sale?
It is ironic that the people advancing these “free home” arguments are the same folks on Maiden Lane in downtown New York City who did not scream or shout when Wall Street stopped making a market in auction rate securities and the Treasury came to rescue with billions and billions of dollars to save their collective asses. After all, it was all just a “big oops” by the smartest guys in the room. These were the guys who failed to take into account that a lot of these multi-option payment adjustable rate mortgages (the so-called MOARMS or MORONS) might not perform once they “adjusted.” These were also the same people who assumed that the value of residential real estate would continue to appreciate from now on at the annual rate of at least 15% per year. Talk about falling asleep at the wheel; these guys were not even in the car!
The average American home borrower pays much more in interest rates than most OECD nation borrowers. This is by design and not by chance. And, that additional thrown off capital from the American homeowner was originally designed to allow a cushion so that the flattening out of risks would be possible and the disruptive nature of recessions would not create problems in the housing markets. In sum, these loan pools were designed to be self-correcting and modifying, that was why the distribution of risk formulas were put in place.
So, what happened? In short, a little instrument called derivatives got in the way, something not disclosed (by the way) in the original prospectuses of the depositors and sponsors upon the registration of these securitized loan pools with the SEC. Not that registration would have made any difference—Exhibit One being the Bernie Madoff case. And then we had the collateral debt obligations, the collateral debt obligations squared and cubed, the credit default swaps and the rest the ponzi-inspired investment schemes. We all know the rest of the story (which, by the way, is on-going and never ending at this point).
So what about the HOPE NOW and HAMP programs? What about all of the participation agreements the mortgage servicers signed with the Treasury? The agreements the servicers never intended to honor and who drafted them with as many outs as a great piece of Swiss cheese. Well, the truth of the matter is that at least seventy plus billions of taxpayer dollars sit fallow since the servicers are much happier gaming the system than allowing the average borrower a modicum of financial and emotional stability. The economy is being held back by the disruptive nature of the servicers trying to pick the pockets of MBIA and AMBAC and MGIC and RADIAN in the same way they clipped AIG.
Are there borrowers who want to play “Wall Street Banksters” and live off the hard work of the American taxpayer? Yes, but in truth probably less than ten percent. The fact is that most borrowers do not abandon their responsibilities just because their homes cannot be sold for a profit. The so-called structured defaults and “bail and buy” are the products of a propaganda campaign by the mortgage industry. If there was any logic to these lies, then most new car buyers would abandon their cars thirty seconds after driving off the dealer’s lot. Or, they would buy a new Chrysler under the 60 day free trial plan and then turn that baby back in and test drive another new vehicle for another 60 days and so on. And, by the way, don’t get me started on the federally funded Chapter 11 bankruptcy cases of Chrysler and GM! The Government spent billions to save several thousand jobs for these two corporations but will not spend any real money to save millions of homeowners.
The fact that an extremely small percentage of borrowers might be able to enjoy the life of a Wall Street baron by getting a loan they do not have to pay for currently does not justify wholesale short-cutting, and in most states there is a difference between the “timing out” of a case and getting a “free” home. Most of those who hire counsel who know how the mill attorneys use the short cuts taken by the foreclosure industry and then use this information against that same industry will at most end up with a borrower that will get a major loan modification that will be paid off/refinanced by them long before they get to the many years needed to quiet title in many states.
I understand that Max Gardner, who leads a consumer army of “trained soldiers” and is called the “go to guy for consumer bankruptcy cases” by Business Week, stresses that his Boot Camp trained-lawyers should use the “maximum amount of legal leverage” in order to secure the “maximum modification of the mortgage loan.” There is certainly power in fully understanding how the other side really does business. I think Gardner knows more than anybody on the consumer side of isle about how the mortgage business really operates and he has made a lot of money with that knowledge. He knows where all the bodies are buried and where the plan to plant the fresh ones.
And as for the free-home advocates, who exactly suggested that Florida or any other state for that matter is a pro borrower jurisdiction? The facts are that about 95% of the Florida foreclosure cases get slam dunked without so much as a whimper from anyone. The foreclosure mills don’t even come into court to get their summary judgments, they just call them in. Actually, they get the judges to call them. You see these mill lawyers are very busy beavers and court and due process and proper evidence are just nuisances that should be avoided at all cost. So the most time a “mill” lawyer has to spend on a foreclosure case is about 90 seconds on a call in to the judge’s chambers…yup, not even in open court. Today, in America, a consumer can lose a home over the phone. This reminds me of the old TV show called “Dialing for Dollars” but this time in reverse. Now the mills are still dialing in for dollars but also securing an order of foreclosure at the same time. And, by the way, I could possibly agree to own a foreclosure or bankruptcy mill if the firm made $2,500.00 for 90 seconds of “real lawyer” work. It is not bad money if you can get away with and still sleep at night. I have trouble sleeping anyway so this would never work for me.
Either way, this author would really much rather be working on using his human capital on helping small companies grow. You see we really and truly need jobs. And a lot of jobs. How can consumers make their mortgage payments without jobs? You see one must stop the bleeding before one can treat the patient.
But for those who act as if the borrower is their spoiled kid asking for some more money to spend at their university, what good would come from pushing through foreclosures faster? Is there some mystery money out there floating around available for the average investor to buy these properties? I am sure the readers of Scotsman’s Guide would love to hear about it, this rush to “punish” people for having had the audacity to get laid off from their jobs. How does that help create stability in this economy? Does anybody think millions of Americans just walked off the job like the Jet Blue flight attendant did by jumping down the emergency exit ramp with two Miller High Life beers? Let’s get real for once!
So that brings us back to the WHO. The parties in the securitized loan pools who are the ones being told to take the losses would NEVER say no to a mortgage modification as it would preserve their capital position. So it is not the so-called “owner of the note” who is saying “foreclose.” The parties who own the impacted bonds in a CUSIP based tranches in the REMIC Trusts who would take the losses are being precluded from making that choice. The truth of the matter is that the mortgage servicers and their legion of “out-source vendors” are the “real parties in interest” in terms of making these decisions because they are the only ones making money in the “foreclosure business.” And they are making a ton of money in this depression. Just check out the current 10-K filed by Lender Processing Services LLC as the proof is in the filing as they say.
The proposition that the borrower should be negotiating with the mortgage servicers is akin to the old adage about the man making a deal with the devil—the devil always gets the best end of the deal and the other party ends up with a hell of an eternity. As a result, the borrower must know who the “real party in interest” is in all of these securitized deals because the homeowner and this party are the two players who have major bucks to lose if we let the servicers and their vendors continue on with their rape and plunder tactics. The Trustee and the Master Servicer in all of these RMBS trusts have fiduciary duties to the bond holders (the so-called “investors”) to do everything possible to protect the value of the bonds—which means they need to engage in mass mortgage modifications in order to preserve as much bond value as possible for all tranches in the structure.
Conversely, the borrower has the absolute right to know who these “real parties” are so that the negotiations can be with those who have “skin in the game” as opposed to those who are simply taking as much skin out of the game as they can scam. This is especially important since the American taxpayer is footing the bill for all the scamsters.
It is way past time to bring some sanity to this madness. The future of America is at risk along with the integrity of our system of just. The fierce urgency of now to quote a once famous leader.

LOAN MODIFICATIONS: IS THIS WHAT I’M SUPPOSED TO BELIEVE??

IS THIS WHAT I’M TO UNDERSTAND?

You don’t need to hire anyone to help you negotiate with your bank for a loan modification.

You don’t need an attorney, you don’t need a mortgage expert, and you don’t need a fraud examiner.

All of those people, the lawyers, the mortgage experts, the fraud examiners… they’re all scammers because they CHARGE for their services.

And everyone knows that loan modifications are FREE… like water in a stream, or the air that we breathe.

Banks, on the other hand, have plenty of lawyers, mortgage experts, credit specialists, underwriters, and professional negotiators.

You, however, should come alone.

Who says you should come alone? The banks say so, that’s who.

The banks are looking out for you. The banks are going to help you. The banks are on your side. You can trust the banks.

The same banks that put you into mortgages where the payments double as soon as the prepayment penalty period ends.

The same banks that blame you, the borrowers, for the meltdown, and have already foreclosed on millions of homes.

The same banks that just lobbied congress to kill the bankruptcy reform bill that would have allowed judges to modify mortgages in bankruptcy so that people going bankrupt could have a chance to keep their homes.

The same banks that just lobbied congress asking for a top allowable interest rate of 500%, and got 390%, while they charge you 29% on your credit card.

The same banks that fraudulently packaged mortgage backed securities as AAA rated bonds and in doing so destroyed the bond market, and left the world’s financial systems in ruin.

The same banks that paid their executives untold billions in compensation and bonuses as the entire country was sliding into the deepest recession since the 1930s.

The same banks that have received TRILLIONS OF DOLLARS in taxpayer money. TRILLIONS.

Those same banks are now going to help you … as long as you come alone to the negotiation. Don’t hire anyone to help you… and they’ll help you.

And our President and our government agrees.

But the FACT is that banks are REQUIRED BY LAW to negotiate in the banks best interest, not yours. The law says that the bank MUST do what’s in the bank’s best interest, not yours.

It’s called a “fiduciary duty,” and it means that the banks MUST do what’s in the best interests of their shareholders, or their shareholders can SUE them for lots of money.

Those are the facts. And while you are entitled to your own opinion, you are not entitled to your own set of facts.

Here’s another fact: The banks don’t want you to have representation. They’d prefer you come alone… without help… without an attorney… without a mortgage expert. They’d much rather negotiate with people who are scared, emotional, and unknowledgeable. It makes it easier and better for them.

But the 5th and 14th Amendments to the United States Constitution state that:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This can be viewed as a person’s rights to fair governing.

In the United States of America there are two types of due process of law, “procedural” and “substantive”.

Procedural due process of law means that the procedures used by government in making, applying, interpreting, and enforcing laws be reasonable and consistent. Substantive due process of law means that the government cannot make laws that apply to situations in which the government has no business interfering. It means that the “substance” or purpose of laws be constitutional.

The Fourteenth Amendment continues and later talks about the “equal protection clause”. It states that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment’s original purpose was to create a society in which all people were treated equally.

There have been three Taxpayer Bill of Rights passed by the United States Congress in the last 20 years. Here’s what the first right in the first Taxpayer Bill of Rights states:

Taxpayers have the right to legal representation similar to that of a criminal defendant. Taxpayers have the right to have the IRS processes explained to them. Taxpayers have the right to sue the government for damages caused by IRS officials.

Shouldn’t taxpayers have the same rights as homeowners when negotiating with their banks to avoid foreclosure and keep their homes?

How many scammers are there? No one knows. How many mortgages have been successfully modified with the help of a private sector law firm or mortgage firm? No one knows.

The government says we must protect homeowners from “scammers,” because homeowners can’t tell whether a given firm is a “scammer” or not. So, the banks and the government say they are all “scammers,” and you can tell because they charge a fee or retainer in advance of the work being completed… which is exactly the way all attorneys charge for every single case they take on.

Is it the scammers who cause the scam, or is it the homeowner who is in a panic? It’s the panic.

And who is causing the homeowner to be in a panic? Who defrauded the financial system and caused the housing meltdown and worst recession since The Great Depression? Who broke the bond market by selling bonds that were fraudulently packaged and sold to investors? Who put homeowners into loans they did not understand and could not afford?

The banks did all of that. The banks caused the panic. The panic leads to the scams.

SO, WHO ARE THE REAL SCAMMERS HERE?

Yes… that’s right.

SO, MAYBE IT’S TIME WE STOPPED LISTENING TO THEM. GET YOUR OWN REPRESENTATION BEFORE NEGOTIATING WITH YOUR BANK OVER A LOAN MODIFICATION. NO MATTER WHAT ANYONE TELLS YOU.

USE YOUR HEAD. THIS MESS WASN’T YOUR FAULT. POOR PEOPLE WHO WANTED HOMES DIDN’T CAUSE THE WORLD’S BANKING SYSTEM AND WALL ST. TO FAIL.

DON’T BE A SUCKER FOR THE BANKS… AGAIN.

In a related story…

Wells Fargo Bank killed a man recently. The man was in jeopardy of losing his home to foreclosure. He had raised his family there. He lived there with his wife. They lived in Agora, CA. He was trying to handle the negotiations himself. Because that’s what he was told to do…

The bank was refusing to work with him. They wouldn’t modify his loan. They told him he had to come up with tens of thousands of dollars or he’d have to get out. They were nasty with him. It was taking a toll on him. The stress must have been unbearable. He couldn’t stand the thought of losing what he had worked his entire life to protect.

Nothing worked. Now there was only ONE WEEK before his home would be sold in a foreclosure sale. He couldn’t stand it.

He had a massive heart attack.

He was 62 years old.

His widow buried him. She was scared that she would have to move from their home.

She hired the law firm of Serge, Rodnunsky & Jones in Woodland Hills. They called Wells Fargo and today they got the bank to agree to delay the sale until September. They’re confident they will be successful in obtaining a loan modification for the widow.

That’s all they needed… a loan modification.

But he is gone. Someone’s husband of decades. Someone’s father. Someone’s grandfather. A life ended.

Because the bank couldn’t modify the loan. A few dollars.

He worked his entire life in this country. His tax dollars made it possible for Wells Fargo to get bailed out by the government. And they killed him. And they didn’t and don’t care one bit.

And I will never forgive Wells Fargo or any of the banks for this. Never.

Taxpayers Bailout the Banks Nobody Bailsout the taxpayer!

Pain on Main Street

As lawmakers continue paying out the 17 trillion it will ultimately cost taxpayers to bailout the banks and lenders on Wall Street, the foreclosure machine grinds on and the mortgage crisis at the heart of the problem continues to worsen.

Every day, people show up looking for help at the modest offices of United Communities Against Poverty, a housing counseling agency in Prince George’s County, Md., in suburban Washington. Homes are going into foreclosure at one of the fastest rates in the nation here, and to chief counselor Caprice Coppedge, it’s hardly surprising that the bailout bill doesn’t have much in it to help them.

“I’m not shocked,” she said. “Each one of these so-called rescues hasn’t done much to help homeowners. There has to be a little bit more of a solid plan. I don’t understand why they [Congress and the Treasury Dept.] are not getting a clear understanding of what’s going on on the ground level — with homeowners.”

When it comes to the bailout, homeowners understand one thing for sure: They aren’t too big to fail. A long-sought measure that might help some of them — changing federal law to allow bankruptcy judges to modify mortgages — faces tough odds, with the lending industry strongly opposed to it.

Even if gets approved, some borrowers can’t afford bankruptcy attorneys or don’t want to file. Still, housing groups estimate the change would keep some 600,000 families in their homes, which is why they have been pushing the idea.

To help even more, Senate Democrats want the government to modify as many of the loans it buys as possible. But just because the government owns all those bad mortgages doesn’t mean it can do a massive restructuring to make them more affordable.

In taking on toxic loans, the government faces a huge Humpty-Dumpty problem — mortgage-backed securities were sliced into pieces and sold that way to investors around the globe. Spending all that taxpayer money to buy those securities still won’t ensure the government can own or control them all, so it can’t redo loans on a large scale. Even $700 billion won’t be enough to put all the pieces back together again, said Adam Levitin, a Georgetown University law professor and expert on the credit industry.

The small percentage of loan modifications that might get done will be “random and arbitrary,” and not based on the merit’s of a homeowner’s case, he said. Not to mention that second mortgage holders regularly refuse to do loan modifications, and many subprime homeowners took out two mortgages.

Given all this, the bailout ends up rewarding the most egregious of the subprime lenders — the ones who made the most abusive and predatory loans and who disproportionately targeted minority borrowers — since they’ll be the ones with the most toxic securities to buy. Banks that didn’t do as much subprime lending won’t need to sell off as many loans, and they won’t get as much government money, Levitin said.

And don’t count on banks being subject to tighter regulation in return for their bailout, he added. It’s possible that banks and lenders in a few years might use the same taxpayer dollars that rescued them to stave off regulatory reform of the financial markets, the ultimate irony of the bailout effort.

The banks seem to be escaping the consequences of their past lending behavior.

“It’s pretty insidious,” Levitin said. “We’re bailing out banks that got us into this mess because of years of abusive and predatory loans. And there’s no price to pay. I find that deeply troubling.”

No where is it more troubling than places like Prince George’s County, the nation’s wealthiest black suburb, which has been hard hit by subprime loans and foreclosures. Credit scores here rank at or above the national average, but the community has more than its share of subprime loans, with almost twice as many homeowners holding high-cost mortgages as the national average.

That pattern holds true elsewhere. In majority black and Latino communities nationwide, nearly half of all mortgages made in 2006 were subprime loans. All during the housing boom, racial differences became more pronounced as income increased — so middle-to-high income black and Latino borrowers were more likely than non-minority borrowers with modest incomes to have subprime mortgages.

Iris Pulliam, 51, a social worker in the District of Columbia public schools, refinanced her Prince George’s County home with a 9.5 percent Countywide loan three years ago. She tried to do some research before refinancing and refused the adjustable rate mortgage the lender first offered.

Looking back, Pulliam said she wasn’t aware she could have had a real estate attorney with her at the closing, and didn’t comprehend all the additional fees included in the loan before she signed. Still, she kept up the payments until her husband died almost two years ago, leaving her with just one income to pay the mortgage and take care of her 15-year-old son.

Pulliam began falling behind on her mortgage, and tried working out a loan modification with Countrywide. But the lender agreed only to a repayment plan that would increase her monthly payments.

She stood in a long line in the July heat to try to get a loan restructuring through the Neighborhood Assistance Corp. of America, a housing advocacy group. But Countrywide still hasn’t approved it. A Countrywide representative called her recently to discuss her case, but she called back again and again and couldn’t get through to anyone.

At this point, Pulliam has taken on a part-time job in addition to her full-time position and has dipped into most of her retirement savings to keep up with the mortgage. Her day starts at 5 a.m., and she gets home around 8 p.m. She’s thinking of trying to refinance again, if possible. One thing she’s well aware of: The bailout plan isn’t going to do a thing for her.

“It’s not taking the average homeowner into consideration, to me,” she said. “I feel that they’re putting all this money out for all these big money industries, investment companies and firms, and they should do something more for the average homeowner, to try to make sure we keep our homes.

“I think the scales are tipped toward the mortgager who has billions of dollars. For the little person, we might as well be off the scales.”

Modifying bankruptcy laws won’t help her, Pulliam said. She wouldn’t be able to afford a bankruptcy attorney. Congress could make a difference by forcing subprime lenders in future to be “upfront and above board,” she said. She’s not convinced that will happen.

To Coppedge, the housing counselor, part of the problem is that people need the sort of help neither Congress nor the Treasury Dept. is talking about. Coppedge, a former mortgage banker, is well aware that keeping credit flowing will help people in the long run to buy homes or take out loans — in that sense, she sees the need for a bailout.

But the people who come to her could use help too, like emergency assistance to cover even a month or two of mortgage payments to stay in their homes. For along with subprime loans, Coppedge noted, higher gas and food prices are cutting into the ability of the elderly and other homeowners on fixed incomes to pay their mortgages.

“I see a lot of clients who are not your typical five or six months behind on their mortgage,” Coppedge said. “I see some individuals, especially the elderly and the handicapped, who were preyed upon and asked to refinance their mortgages to make repairs or whatever the case may be. And these people just need one or two months of mortgage assistance to catch up, and catch their breath, and be able to get back on track.”

As part of the bailout, Democrats in the House and Senate want government agencies like the Federal Housing Admin. to expand their lending programs and help more homeowners, building on an effort included in the mortgage rescue bill. Under that program, the FHA will provide $300 billion in guarantees for lower-rate mortgages refinanced by lenders willing to accept a loss on the loans.

The program, which begins Oct. 1, is voluntary, and no one seems sure how well it will work. Coppedge noted that most of her clients either don’t have enough income or owe so much more on their mortgages than their homes are worth that they usually don’t qualify for FHA or other government programs.

On Capitol Hill, some lawmakers and economists are questioning whether the bailout plan will do enough to ease the credit crunch and to hold off a recession. But to groups like the Center for Responsible Lending, they are asking the wrong questions. Unless any bailout also deals with the problems of people facing foreclosures, it can’t fix the economy.

“The bailout will not solve our economic problems because it will do virtually nothing to stop the foreclosure epidemic,” the center said in a statement. “Continuing foreclosures will drag down the economy even further.”

John Taylor, president of the National Community Reinvestment Coalition, which represents housing advocacy groups, called it “unconscionable” for Congress to approve a plan that never addresses the underlying problem behind the crisis. His group met with Federal Reserve Chairman Ben Bernanke on Monday to complain that the government should first help homeowners facing foreclosure, before shoring up Wall Street.Its the classic case privatizing the profits of Bear Sterns and The Gang of Five and Socializing Losses.And you think it’s an accident, some “natural order of things? That’s what the super wealthy want us to think. And profit-driven establishment, celebrity media to plays along, because it’s a good deal for them. Ain’t it grand? I’m gonna be like that some day, so we better not tax them…. that would be spreading the wealth…. in the wrong direction.

Pulliam says the bailout for Wall Street mostly means that she’s on her own to save her home. Does anyone in power understand what she’s going through?

“The CEO of Countrywide wouldn’t know,” Pulliam said. “Or the vice president of Countrywide; or the Bank of America. They’re all out buying up other banks while the consumers have trouble keeping their houses.”
Pulliam grew up in a house with a white picket fence, and she wants that same sense of the benefits of homeownership for her son. She’s thinking about taking in a roommate to help pay the mortgage. Her sister is also facing foreclosure, and they’re considering sharing a household to solve both of their difficulties.
“I’ll do everything possible that’s legal and above board to keep my home,” Pulliam said. “That’s what I want for my son — a stable neighborhood environment.”

Like other troubled borrowers dealing with a crisis that seems far removed from the political posturing on Capitol Hill, Pulliam seems willing to pay whatever price it takes to keep it.

Nearly 50 percent leave Obama mortgage-aid program

Nearly 50 percent leave Obama mortgage-aid program
Obama mortgage-aid effort is struggling to stem the rising number of foreclosures in US
ap

FILE – In this file photo taken July 21, 2010, a “bank owned” sign is seen on a home that is listed as a foreclosure on a HUD website, in Hawthorne, Calif. Nearly half of the homeowners who enrolled in the Obama administration’s flagship mortgage-relief program have fallen out. (AP Photo/Reed Saxon, file)
Martin Crutsinger, AP Economics Writer, On Friday August 20, 2010, 10:18 pm EDT

WASHINGTON (AP) — Nearly half of the 1.3 million homeowners who enrolled in the Obama administration’s flagship mortgage-relief program have fallen out.

The program is intended to help those at risk of foreclosure by lowering their monthly mortgage payments. Friday’s report from the Treasury Department suggests the $75 billion government effort is failing to slow the tide of foreclosures in the United States, economists say.

More than 2.3 million homes have been repossessed by lenders since the recession began in December 2007, according to foreclosure listing service RealtyTrac Inc. Economists expect the number of foreclosures to grow well into next year.

“The government program as currently structured is petering out. It is taking in fewer homeowners, more are dropping out and fewer people are ending up in permanent modifications,” said Mark Zandi, chief economist at Moody’s Analytics.

Besides forcing people from their homes, foreclosures and distressed home sales have pushed down on home values and crippled the broader housing industry. They have made it difficult for homebuilders to compete with the depressed prices and discouraged potential sellers from putting their homes on the market.

Approximately 630,000 people who had tried to get their monthly mortgage payments lowered through the government program have been cut loose through July, according to the Treasury report. That’s about 48 percent of the those who had enrolled since March 2009. And it is up from more than 40 percent through June.

Another 421,804, or roughly 32 percent of those who started the program, have received permanent loan modifications and are making their payments on time.

RealtyTrac reported that the number of U.S. homes lost to foreclosure surged in July to 92,858 properties, up 9 percent from June. The pace of repossessions has been increasing and the nation is now on track to having more than 1 million homes lost to foreclosure by the end of the year. That would eclipse the more than 900,000 homes repossessed in 2009, the firm says.

Lenders have historically taken over about 100,000 homes a year, according to RealtyTrac.

Zandi said the government effort will likely end up helping only about 500,000 homeowners lower their monthly payments on a permanent basis. That’s a small percentage of the number of people who have already lost their homes to foreclosure or distressed sales like short sales — when lenders let homeowners sell for less than they owe on their mortgages.

Zandi predicts another 1.5 million foreclosures or short sales in 2011.

“We still have a lot more foreclosures to come and further home price declines,” Zandi said. He said home prices, which have already fallen 30 percent since the peak of the housing boom, would drop by another 5 percent by next spring.

Many borrowers have complained that the government program is a bureaucratic nightmare. They say banks often lose their documents and then claim borrowers did not send back the necessary paperwork.

The banking industry said borrowers weren’t sending back their paperwork. They also have accused the Obama administration of initially pressuring them to sign up borrowers without insisting first on proof of their income. When banks later moved to collect the information, many troubled homeowners were disqualified or dropped out.

Obama officials dispute that they pressured banks. They have defended the program, saying lenders are making more significant cuts to borrowers’ monthly payments than before the program was launched. And some of the largest mortgage companies in the program have offered alternative programs to those who fell out.

Homeowners who qualify can receive an interest rate as low as 2 percent for five years and a longer repayment period. Those who have successfully navigated the program to reach permanent modifications have seen their monthly payments cut on average by about $500.

Homeowners first receive temporary modifications and those are supposed to become permanent after borrowers make three payments on time and complete all the required paperwork. That includes proof of income and a letter explaining the reason for their troubles. But in practice, the process has taken far longer.

The more than 100 participating mortgage companies get taxpayer incentives to reduce payments. As of mid-June only $490 million had been spent out of a potential $75 billion the government has made available to help stem the wave of foreclosures.

AP Real Estate Writer Alan Zibel in Washington and Alex Veiga in Los Angeles contributed to this report.

Plan of engagement: what to do “let them foreclose” or “Do something about it” what to do

UPDATE: This is THE OUTLINE of a plan that is current in its evolution but by no means complete or the last word. It replaces the entry I made in February of this year. The assumption here is that even without taking mortgage foreclosure cases into consideration, the percentage of cases that actually go to trial is between 5%-15% depending upon how you categorize “cases.” On the other hand, if you are not prepared for trial and counting on settlement, your opposition will generally know it and have the upper hand in negotiating a settlement. They are going to play for keeps. You should too. Don’t assume that the note in front of you is the actual original. Close inspection often reveals it is a color copy.

And for heaven sake don’t stand there with your mouth hanging open when someone says you are looking for a free house. You are looking for justice. You had your purse snatched in this transaction, you know there is an obligation, but you also know that they didn’t perfect the security interest (not your fault) and they received multiple payments from multiple parties on these securitized loans. You want a FULL accounting of all such transactions to determine what balance is due after insurance payments, who is subrogated or substituted on claims, and an opportunity to negotiate a settlement or modification with someone who actually has advanced money on THIS transaction and can show it to be so.

WORD OF CAUTION: IF YOU ARE ALREADY IN PROCESS, YOU ARE REQUIRED TO ACT WITHIN THE TIMES SET FORTH BY STATE LAW, FEDERAL LAW, OR THE LAWS OF CIVIL PROCEDURE. FAILURE TO DO SO LEAVES YOU IN AN UPHILL BATTLE TO REVERSE ACTIONS ALREADY TAKEN. ON THE OTHER HAND ACTIONS ALREADY TAKEN “FIX” THE POSITION OF YOUR OPPOSITION, SINCE THEY CAN NO LONGER ASSERT CHANGES IN CREDITOR, LENDER OR TRUSTEE. THUS IT MIGHT BE EASIER, ACCORDING TO SOME SUCCESSFUL LITIGATORS OUT THERE, TO WAIT UNTIL THE SALE HAS OCCURRED AND THEN ATTACK IT AS A FRAUDULENT SALE, THAN TO TRY TO STOP IT WITH A TEMPORARY RESTRAINING ORDER ETC.

CONSIDER BANKRUPTCY, ESPECIALLY CHAPTER 13, WHERE THERE ARE MORE REMEDIES THAN YOU MIGHT THINK IF YOU FILL OUT YOUR SCHEDULES PROPERLY. WE ARE SEEING BETTER RESULTS IN SOME BANKRUPTCY COURTS THAN FEDERAL OR STATE CIVIL COURT PROCEEDINGS.

1. Get your act together, stop fighting amongst the members of your household and make a decision as to what you want to do — fight or flight?
2. GET SOME HELP NO MATTER WHAT YOU DECIDE. GET THE LOAN SPECIFIC TITLE SEARCH, GET A SECURITIZATION SEARCH, AND GET A LAWYER LICENSED IN THE COUNTY WHERE YOUR PROPERTY IS LOCATED AND MAKE SURE HE/SHE IS NOT STUCK ON THE PROPOSITION THAT YOU SHOULD LOSE.
3. If you choose flight, then by all means try the short-sale or jingle mail strategies that have been discussed on this blog. Do not try to make money on the short-sale, since nobody is going to give it to you. You can make a few dollars by riding out the time in foreclosure without making payments (and hopefully saving the money you would have paid) and by negotiating as high a price (a few thousand dollars) as you can in a deal known as “cash for keys.” Even for this, you should employ the services of a local licensed attorney — at least for consultation. There are several short-sale options that have evolved. Google Edge Simonson or Prime financial. I’ve been working on a short-sale-leaseback option that seems to be picking up steam.
4. STRATEGIC DEFAULTS RISING: More and more people of all walks of life including those that have some considerable wealth, are walking away from these properties that were the subject of transactions in which the presumed value of the property was preposterous. This is an option that scare the hair off the pretender lenders because it pouts the power in your hands. They in turn are trying to scare the public with threats of deficiency judgments etc and collections. It is doubtful that many or indeed any deficiency judgments would be awarded, even if they were allowed. But in many cases, particularly in non-judicial states, deficiency judgments are NOT allowed. A version of the strategic default that many people like is to stay as long as possible without paying and then walk. If you are smart about it, you raise your own capital by socking away the payments you would have made.
5. If the decision is fight — then the second decision to make is to answer the question “fight for what?” If you want to buy time, there are many strategies that can be employed, which basically are the same strategies as those used if you are fighting for real. And you might be surprised by the result. Some people get a year or two or even more without payments. You are going to take a FICO hit anyway so why not put some cash in your pocket while you hold back payments.
6. AVOID crazy deals where you give your property or share your property with a stranger. If you persist in engaging such people at least call references and make sure the references are real. Ask questions about their situation and how they feel it worked out to them. Get as much detail as possible.
7. AVOID mortgage modification firms. If you persist in engaging such people at least call references and make sure the references are real. Ask questions about their situation and how they feel it worked out to them. Get as much detail as possible. My opinion is that if they don’t pursue an aggressive litigation strategy the statistical probability of you accomplishing anything by going to them is near zero.
8. In all cases, if at all possible:

(a) Get all your information together along with a short executive summary of your “journal” (even if you create the journal now). That means all closing documents, any information you have on title, recording in the county recorder’s office, the names of all parties who were “at” closing (that means not just the actual people who were there, but he names of companies that were represented or mentioned at closing). Also, include in the file any notices of default(NOD) or notice of Trustee sale (NOTS) or summons from a court.

(b) Get a MORTGAGE ANALYSIS of the loan transaction itself. THIS INVOLVES THREE PARTS — (1) LOAN SPECIFIC TITLE SEARCH AND CHAIN OF TITLE, EXAMINATION OF THE DOCUMENTS, SIGNATURES, AND DATES OF DOCUMENTS PURPORTING TO BE REAL, (2) SECURITIZATION SEARCH THAT CHASES THE MONEY TRAIL AND WILL PROBABLY LEAD YOU TO SOME IMPORTANT ISSUES LIKE THE VERY EXISTENCE OF THE “TRUST” ASSERTING IT HAS THE RIGHT TO FORECLOSE AS WELL AS MONETARY ISSUES SUCH AS APPLICATION OR ALLOCATION OF PAYMENTS RECEIVED BY THE INVESTOR WHO ADVANCED THE FUNDS FOR THE LOAN AND (3) COMMENTARY AND ANALYSIS THAT IS USABLE BY AN ATTORNEY IN COURT SUCH THAT HE/SHE CAN ARGUE THAT THERE ARE QUESTIONS OF FACT ENTITLING YOU TO PURSUE DISCOVERY. IF YOU WIN THAT POINT YOU ARE ON YOUR WAY TO A SUCCESSFUL CONCLUSION. BUT NOBODY IS GOING TO MAKE IT EASY FOR YOU.

(c) Who is your creditor? The TILA Audit alone does nothing without taking further steps. The Trustee’s “Take-down” report should be demanded in non-judicial states and if the house is in foreclosure, your written objection should be sent to the Trustee.

(d) If someone tells you they are “pretty sure” or can “definitely” stop your foreclosure or promises a favorable outcome, and asks for money up front, then run like hell. This is a scam. IF THEY TELL YOU THEY WILL DO WHAT THEY CAN, AND THEY GIVE YOU SOME EXAMPLES OF WHAT THEY WILL BE DOING FOR YOU THEN LISTEN AND GET REFERENCES.

(e) Only a Court order stops foreclosure or a Trustee Sale. No letter of any form or substance will stop it unless the other side is intimidated into stopping the action, which sometimes happens when they know their paperwork is “out of order.”

(f) Get a Forensic Mortgage Analysis Report OR AN EXPERT DECLARATION that summarizes in a few pages the potential issues that you should be investigating AND WHICH LENDS SUPPORT TOY OUR DENIAL OF THE DEFAULT, DENIAL OF THE RIGHT OF THE OPPOSING PARTY TO CLAIM A DEFAULT, DENIAL OF THE RIGHT OF THE OPPOSING PARTY TO FORECLOSE.

(g) Get an Expert Declaration that uses the forensic report and the expert opinions of specific experts (like appraisers, title analysts) and which identifies the probable chain of securitization and the money trail. You’ll be surprised when you find out there were two yield spread premiums not disclosed to you and that they can total as much or more than the “loan” itself. GET EXPERT OPINION ON PROBABLE DAMAGES INCLUDING RETURN OF UNDISCLOSED FEES, INTEREST, ETC. (SEE LAWYER’S WORKBOOK FROM GARFIELD CONTINUUM).

(h) Send the Forensic Report and expert declaration to the known parties, with an instruction to forward it to all other parties known to them in the securitization chain. Include a Qualified Written Request(QWR) AND a Debt Validation Letter(DVL) (which is really a debt verification letter). Don’t be surprised if your pretender lenders will come back and tell you your QWR is defective or improper in some way, but that’s OK, you have followed statutory procedure and they didn’t. With the help of an attorney and with consultation with your experts decide on what resolution you will demand — damages, rescission, etc.

(i) Don’t believe a word about modification. Practically none of them go through. They are leading you into default so they can collect more service fees, and get money out of you that you think is stopping the foreclosure.

(j) Don’t believe a word that any pretender lender or representative says or represents, even if they are a lawyer, particularly verbal communications that they refuse to confirm in writing. Challenge everything.
(k) Don’t accept any document as authentic. Many documents are being fabricated or forged, including affidavits. This is why you need a lawyer and an expert and a Forensic mortgage analysis — to determine what documents and parties are suspect and what you should be asking for in discovery and in the QWR and DVL.

(l) YOUR FIRST STRATEGY IS TO RAISE NOT PROVE ISSUES OF FACT. BY PRODUCING A FORENSIC REPORT AND EXPERT DECLARATION, NEITHER YOU NOR YOUR LAWYER NEEDS TO ACQUIRE EXPERTISE IN SECURITIZED LOANS. YOU ONLY NEED TO RAISE THE ISSUE OF FACT BY SHOWING THE COURT THAT YOU HAVE EXPERTS WHO SAY THE PRETENDER LENDERS/TRUSTEES ETC. ARE NOT CREDITORS AND NOT AUTHORIZED AGENTS WORKING FOR THE CREDITORS. THEY SAY THEY ARE IN FACT THE CREDITORS OR HAVE SOME AUTHORITY GRANTED BY AN ALLEGED CREDITOR. IT IS NOT FOR THE COURT TO ACCEPT ONE VIEW OR THE OTHER, BUT RATHER TO ALLOW DISCOVERY AND AN EVIDENTIARY HEARING ON THE ISSUE OF STANDING (SEE MANY RECENT CASES REPORTED SINCE FEBRUARY ON THIS BLOG).

(m) Be very aggressive on discovery. They will argue that even if they are not the creditor and even if they refuse to disclose the identity of the creditor, they are still entitled to disclose because they are the holder of the note and/or mortgage. Your argument will probably be that they still have a duty to disclose the identity of the creditor and the source of the their authority to represent the creditor, along with proof that the creditor has received notice of these proceedings.

A Homeowners’ Rebellion: Could 62 Million Homes be Foreclosure-Proof?

62 MILLION HOMES ARE LEGALLY FORECLOSURE -PROOF

Posted 7 hours ago by Neil Garfield on Livinglies’s Weblog

EDITOR’S NOTE: YES IT MEANS WHAT IT SAYS — WHICH IS WHAT I HAVE BEEN SAYING FOR THREE YEARS. BUT JUST BECAUSE SOME JUDGES REALIZE THAT THIS IS THE ONLY CORRECT LEGAL INTERPRETATION DOESN’T MEAN ALL OF THEM WILL ABIDE BY THAT. QUITE THE REVERSE. MOST JUDGES REFUSE TO ACCEPT AND CAN’T WRAP THEIR BRAINS AROUND THE FACT THAT THE FINANCIAL INDUSTRY THAT SET THE LEGAL STANDARDS FOR PERFECTING A SECURITY INTEREST IN RESIDENTIAL HOME MORTGAGES COULD HAVE SCREWED UP LIKE THIS.

THE ANSWER OF COURSE IS THAT THEY DIDN’T — WALL STREET DID IT. I KNOW FOR A FACT AND HAVE SEEN THE INTERNAL MEMORANDUM WRITTEN IN 2003-2006 THAT LAWYERS WHO WERE PREPARING THE SECURITIZATION DOCUMENTS KNEW AND INFORMED THEIR CLIENTS THAT THIS COULD NOT WORK.

THIS DOES NOT MEAN YOU GET A FREE HOUSE. BUT IT DOES MEAN THAT AT THE MOMENT ANY HOUSE IN WHICH MERS WAS INVOLVED DOES NOT HAVE A PERFECTED SECURITY INTEREST AS AN ENCUMBRANCE. AND THAT MEANS THAT ANY FORECLOSURE BASED UPON DOCUMENTS OR PRESUMPTIONS REGARDING MERS ARE VOID. AND THAT MEANS THAT IF YOU FALL INTO THIS CLASS OF PEOPLE — AND MOST PEOPLE DO — IT IS POSSIBLE AND EVEN PROBABLE THAT YOU COULD BE AWARDED QUIET TITLE ON A HOME THAT WAS FORECLOSED AND SOLD EVEN YEARS AGO.

BUT BEWARE: JUST BECAUSE THEY SCREWED UP THE PAPERWORK AND THEY DON’T HAVE THE REMEDY OF FORECLOSURE IMMEDIATELY AVAILABLE DOESN’T MEAN THAT NOBODY LENT YOU MONEY NOR DOES IT MEAN THAT YOU DON’T OWE ANY MONEY NOR DOES IT MEAN THAT THEY COULD NOT CREATE AN EQUITABLE LIEN ON YOUR PROPERTY THAT COULD AMOUNT TO A MORTGAGE THAT COULD BE FORECLOSED. BUT THAT IS STRICTLY A JUDICIAL PROCESS EVEN IN SO-CALLED NON-JUDICIAL STATES.

WE ARE NOW CLOSING IN ON THE REALITY. THE INEVITABLE OUTCOME IS PRINCIPAL REDUCTION WHETHER THE BANKS LIKE IT OR NOT. EVEN IF THEIR LIEN WAS PERFECTED AND ENFORCEABLE THEY STILL CANNOT GET ANY MORE MONEY THAN THE HOUSE IS WORTH. WITHOUT THE ENCUMBRANCE, THEY ARE FORCED TO NEGOTIATE A WHOLE NEW PATH WITH ONLY THE PARTIES THAT ARE NOW LEFT HOLDING THE BAG ON THE LOSS ASSOCIATED WITH THE ORIGINAL LOAN ON YOUR PROPERTY, AFTER ADJUSTMENTS FOR PAYMENTS RECEIVED BUT NOT RECORDED OR ALLOCATED.

IN ORDER TO HOLD THEIR FEET TO THE FIRE, YOU HAVE TO KNOW THE ORIGINAL SECURITIZATION SCHEME AND INSIST ON PROOF OF WHAT HAPPENED AFTER THE INITIAL SECURITIZATION PLAN WAS PUT IN PLACE. REMEMBER THAT THIS IS NOT A FIXED EVENT. THIS IS SINGLE TRANSACTION BETWEEN THE BORROWER AND AN ONGOING PROCESSION OF SUCCESSORS EACH OF WHOM HAS QUESTIONABLE RIGHTS TO THE NOTE, MORTGAGE OR EVEN THE OBLIGATION SINCE THEY WERE ONLY ASSIGNED A RECEIVABLE FROM A PARTY WHO WAS NEITHER THE BORROWER NOR THE ORIGINATING LENDER.

A Homeowners’ Rebellion: Could 62 Million Homes be Foreclosure-Proof?

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Ellen Brown
Web of Debt
August 20, 2010

Over 62 million mortgages are now held in the name of MERS, an electronic recording system devised by and for the convenience of the mortgage industry. A California bankruptcy court, following landmark cases in other jurisdictions, recently held that this electronic shortcut makes it impossible for banks to establish their ownership of property titles—and therefore to foreclose on mortgaged properties. The logical result could be 62 million homes that are foreclosure-proof.

Victims of predatory lending could end up owning their homes free and clear—while the financial industry could end up skewered on its own sword.

Mortgages bundled into securities were a favorite investment of speculators at the height of the financial bubble leading up to the crash of 2008. The securities changed hands frequently, and the companies profiting from mortgage payments were often not the same parties that negotiated the loans. At the heart of this disconnect was the Mortgage Electronic Registration System, or MERS, a company that serves as the mortgagee of record for lenders, allowing properties to change hands without the necessity of recording each transfer.

MERS was convenient for the mortgage industry, but courts are now questioning the impact of all of this financial juggling when it comes to mortgage ownership. To foreclose on real property, the plaintiff must be able to establish the chain of title entitling it to relief. But MERS has acknowledged, and recent cases have held, that MERS is a mere “nominee”—an entity appointed by the true owner simply for the purpose of holding property in order to facilitate transactions. Recent court opinions stress that this defect is not just a procedural but is a substantive failure, one that is fatal to the plaintiff’s legal ability to foreclose.

That means hordes of victims of predatory lending could end up owning their homes free and clear—while the financial industry could end up skewered on its own sword.

California Precedent

The latest of these court decisions came down in California on May 20, 2010, in a bankruptcy case called In re Walker, Case no. 10-21656-E–11. The court held that MERS could not foreclose because it was a mere nominee; and that as a result, plaintiff Citibank could not collect on its claim. The judge opined:

Since no evidence of MERS’ ownership of the underlying note has been offered, and other courts have concluded that MERS does not own the underlying notes, this court is convinced that MERS had no interest it could transfer to Citibank. Since MERS did not own the underlying note, it could not transfer the beneficial interest of the Deed of Trust to another. Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law.

In support, the judge cited In Re Vargas (California Bankruptcy Court); Landmark v. Kesler (Kansas Supreme Court); LaSalle Bank v. Lamy (a New York case); and In Re Foreclosure Cases (the “Boyko” decision from Ohio Federal Court). (For more on these earlier cases, see here, here and here.) The court concluded:

Since the claimant, Citibank, has not established that it is the owner of the promissory note secured by the trust deed, Citibank is unable to assert a claim for payment in this case.

The broad impact the case could have on California foreclosures is suggested by attorney Jeff Barnes, who writes:

This opinion . . . serves as a legal basis to challenge any foreclosure in California based on a MERS assignment; to seek to void any MERS assignment of the Deed of Trust or the note to a third party for purposes of foreclosure; and should be sufficient for a borrower to not only obtain a TRO [temporary restraining order] against a Trustee’s Sale, but also a Preliminary Injunction barring any sale pending any litigation filed by the borrower challenging a foreclosure based on a MERS assignment.

While not binding on courts in other jurisdictions, the ruling could serve as persuasive precedent there as well, because the court cited non-bankruptcy cases related to the lack of authority of MERS, and because the opinion is consistent with prior rulings in Idaho and Nevada Bankruptcy courts on the same issue.

What Could This Mean for Homeowners?

Earlier cases focused on the inability of MERS to produce a promissory note or assignment establishing that it was entitled to relief, but most courts have considered this a mere procedural defect and continue to look the other way on MERS’ technical lack of standing to sue. The more recent cases, however, are looking at something more serious. If MERS is not the title holder of properties held in its name, the chain of title has been broken, and no one may have standing to sue. In MERS v. Nebraska Department of Banking and Finance, MERS insisted that it had no actionable interest in title, and the court agreed.

An August 2010 article in Mother Jones titled “Fannie and Freddie’s Foreclosure Barons” exposes a widespread practice of “foreclosure mills” in backdating assignments after foreclosures have been filed. Not only is this perjury, a prosecutable offense, but if MERS was never the title holder, there is nothing to assign. The defaulting homeowners could wind up with free and clear title.

In Jacksonville, Florida, legal aid attorney April Charney has been using the missing-note argument ever since she first identified that weakness in the lenders’ case in 2004. Five years later, she says, some of the homeowners she’s helped are still in their homes. According to a Huffington Post article titled “‘Produce the Note’ Movement Helps Stall Foreclosures”:

Because of the missing ownership documentation, Charney is now starting to file quiet title actions, hoping to get her homeowner clients full title to their homes (a quiet title action ‘quiets’ all other claims). Charney says she’s helped thousands of homeowners delay or prevent foreclosure, and trained thousands of lawyers across the country on how to protect homeowners and battle in court.

Criminal Charges?

Other suits go beyond merely challenging title to alleging criminal activity. On July 26, 2010, a class action was filed in Florida seeking relief against MERS and an associated legal firm for racketeering and mail fraud. It alleges that the defendants used “the artifice of MERS to sabotage the judicial process to the detriment of borrowers;” that “to perpetuate the scheme, MERS was and is used in a way so that the average consumer, or even legal professional, can never determine who or what was or is ultimately receiving the benefits of any mortgage payments;” that the scheme depended on “the MERS artifice and the ability to generate any necessary ‘assignment’ which flowed from it;” and that “by engaging in a pattern of racketeering activity, specifically ‘mail or wire fraud,’ the Defendants . . . participated in a criminal enterprise affecting interstate commerce.”

Local governments deprived of filing fees may also be getting into the act, at least through representatives suing on their behalf. Qui tam actions allow for a private party or “whistle blower” to bring suit on behalf of the government for a past or present fraud on it. In State of California ex rel. Barrett R. Bates, filed May 10, 2010, the plaintiff qui tam sued on behalf of a long list of local governments in California against MERS and a number of lenders, including Bank of America, JPMorgan Chase and Wells Fargo, for “wrongfully bypass[ing] the counties’ recording requirements; divest[ing] the borrowers of the right to know who owned the promissory note . . .; and record[ing] false documents to initiate and pursue non-judicial foreclosures, and to otherwise decrease or avoid payment of fees to the Counties and the Cities where the real estate is located.” The complaint notes that “MERS claims to have ‘saved’ at least $2.4 billion dollars in recording costs,” meaning it has helped avoid billions of dollars in fees otherwise accruing to local governments. The plaintiff sues for treble damages for all recording fees not paid during the past ten years, and for civil penalties of between $5,000 and $10,000 for each unpaid or underpaid recording fee and each false document recorded during that period, potentially a hefty sum. Similar suits have been filed by the same plaintiff qui tam in Nevada and Tennessee.

By Their Own Sword: MERS’ Role in the Financial Crisis

MERS is, according to its website, “an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked. Created by the real estate finance industry, MERS eliminates the need to prepare and record assignments when trading residential and commercial mortgage loans.” Or as Karl Denninger puts it, “MERS’ own website claims that it exists for the purpose of circumventing assignments and documenting ownership!”

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MERS was developed in the early 1990s by a number of financial entities, including Bank of America, Countrywide, Fannie Mae, and Freddie Mac, allegedly to allow consumers to pay less for mortgage loans. That did not actually happen, but what MERS did allow was the securitization and shuffling around of mortgages behind a veil of anonymity. The result was not only to cheat local governments out of their recording fees but to defeat the purpose of the recording laws, which was to guarantee purchasers clean title. Worse, MERS facilitated an explosion of predatory lending in which lenders could not be held to account because they could not be identified, either by the preyed-upon borrowers or by the investors seduced into buying bundles of worthless mortgages. As alleged in a Nevada class action called Lopez vs. Executive Trustee Services, et al.:

Before MERS, it would not have been possible for mortgages with no market value . . . to be sold at a profit or collateralized and sold as mortgage-backed securities. Before MERS, it would not have been possible for the Defendant banks and AIG to conceal from government regulators the extent of risk of financial losses those entities faced from the predatory origination of residential loans and the fraudulent re-sale and securitization of those otherwise non-marketable loans. Before MERS, the actual beneficiary of every Deed of Trust on every parcel in the United States and the State of Nevada could be readily ascertained by merely reviewing the public records at the local recorder’s office where documents reflecting any ownership interest in real property are kept….

After MERS, . . . the servicing rights were transferred after the origination of the loan to an entity so large that communication with the servicer became difficult if not impossible …. The servicer was interested in only one thing – making a profit from the foreclosure of the borrower’s residence – so that the entire predatory cycle of fraudulent origination, resale, and securitization of yet another predatory loan could occur again. This is the legacy of MERS, and the entire scheme was predicated upon the fraudulent designation of MERS as the ‘beneficiary’ under millions of deeds of trust in Nevada and other states.

Axing the Bankers’ Money Tree

If courts overwhelmed with foreclosures decide to take up the cause, the result could be millions of struggling homeowners with the banks off their backs, and millions of homes no longer on the books of some too-big-to-fail banks. Without those assets, the banks could again be looking at bankruptcy. As was pointed out in a San Francisco Chronicle article by attorney Sean Olender following the October 2007 Boyko [pdf] decision:

The ticking time bomb in the U.S. banking system is not resetting subprime mortgage rates. The real problem is the contractual ability of investors in mortgage bonds to require banks to buy back the loans at face value if there was fraud in the origination process.

. . . The loans at issue dwarf the capital available at the largest U.S. banks combined, and investor lawsuits would raise stunning liability sufficient to cause even the largest U.S. banks to fail . . . .

Nationalization of these giant banks might be the next logical step—a step that some commentators said should have been taken in the first place. When the banking system of Sweden collapsed following a housing bubble in the 1990s, nationalization of the banks worked out very well for that country.

The Swedish banks were largely privatized again when they got back on their feet, but it might be a good idea to keep some banks as publicly-owned entities, on the model of the Commonwealth Bank of Australia. For most of the 20th century it served as a “people’s bank,” making low interest loans to consumers and businesses through branches all over the country.

With the strengthened position of Wall Street following the 2008 bailout and the tepid 2010 banking reform bill, the U.S. is far from nationalizing its mega-banks now. But a committed homeowner movement to tear off the predatory mask called MERS could yet turn the tide. While courts are not likely to let 62 million homeowners off scot free, the defect in title created by MERS could give them significant new leverage at the bargaining table.

Countrywide settlement pays fraction to investors – Shell Game Continues

Countrywide settlement pays fraction to investors – Shell Game Continues
Posted on August 16, 2010 by Neil Garfield

EDITOR’S NOTE: The shell game continues. While the media picks up stories about “settlements” giving rise to the presumption that Countrywide Home Loans and Bank of America and the rest of the securitization players committed various violations of statutes, duties, rules and regulations, the main point gets lost. Where is this money going and WHY? What is the tacit or express admission in paying that money and what effect does it have on the average homeowner sitting with a loan whose obligation is being paid in these settlements?
Think about it. If Bank of America, which now owns Countrywide, is paying “fractions” to investors who purchased mortgage bonds then who is it that owns the underlying mortgages and loans? Did Bank of America pay the investors do it under a reservation of rights (subrogation) to enforce the underlying loans? If not, then why are they foreclosing? All evidence is to the contrary. There is no subrogation under these purchases, insurance, credit default swaps or any other contract — not that I ever saw and not that my sources in the industry tell me was ever even contemplated much less executed. The same holds true for all those bonds the Federal Reserve is holding.

If Bank of America is paying “fractions” to investors who purchased mortgage bonds, why was it a fraction? Is it because the value of the bond was much lower than the price paid by the investor? Is it just a convenient settlement? Or is it because the investors have also received funds from other sources?

This is what I am referring to when I address “factual constipation.” How are these payments being allocated? Did the owners of the bonds actually have any definable interest in the underlying mortgage loans? If they did, why are these payments not being allocated to the obligations or payments due under those underlying mortgage loans? If they didn’t, why did they get paid anything? How will we ever know without getting a full accounting from all the parties that claim some stake or ownership interest or receivable interest in me is underlying mortgage loans?

It is black letter law as well as common law dating back centuries that nobody can collect the same debt more than once. If they do collect more than once there is a clear right of action by the borrower to collect the excess payment through a lawsuit for unjust enrichment, breach of contract and other causes of action. Here we have an intentional act designed to collect the same debt multiple times. In my opinion this does not merely indicate the presence of an action for fraud, it clearly shows an interstate pattern of racketeering that at one time in our history had the Department of Justice and the FBI busy putting people in jail.

Only in America where the news has turned into an entertainment blitz used by those with the most power and the most money to get their message across, even if it is a total lie. Somehow many if not most people have the impression that the borrowers and the securitized mortgages executed between 2001 and 2009 are not entitled to the relief that any other debtor is entitled to receive––that is the obligation has been reduced for any reason, the borrowers should get credit and if any party receives money in excess of the net amount due after credits, the creditor becomes the debtor owing money to the former borrower.

The bullet point that is being used to distort the perception of our citizens and policymakers is that these borrowers should not get a “free house.” Without getting a full accounting from all parties that advanced funds to and from the original investors who purchased mortgage bonds or collateralized debt obligations and related hedge products, there is no way of knowing the amount of the credit which is due to the borrower. Yes, it is possible that the amount received by the various intermediaries in the securitization chain exceeded the original obligation due from the borrower.

In that case, the borrower owes nothing to the originating lender or the successors to that lender. But if there is still a class of investor or institution that can prove a loss resulting from the nonpayment of the obligation by the borrower (as opposed to non-payment from other parties in the securitization chain) then the law allows that party to recover the loss from those that caused it. That probably includes the borrower, which means that we are not seeking a free house, we are seeking a truthful accounting.

BUT the fact that this obligation theoretically exists does not mean and never did mean under any legal decision in existence that the obligation should be paid to anybody who claims it. By all substantive and procedural law, the obligation is payable to one who proves the obligation and to one who proves it is owed to them and nobody else.
Yet in the view of many judges the challenge by the borrower is viewed as a delay tactic or an attempt to use technical deficiencies to a gain a free house on a lawn that the borrower sought but could not pay. No doubt this is true in some cases. But in nearly all the cases, armies of salespeople using names like “loan expert” pounded on doors and rang the phones of people who had no thought of borrowing money on homes, in many cases, that were debt-free and had been in the family for generations. Now many of those homes are bank owned property.
The simple question that needs to be posed to anyone who looks at the borrower as anything other than a victim is which is more likely? Did the owners of 20 million homes enter into a conspiracy to defraud the financial system, half society and our taxpayers? Did these people have the sophistication, education, knowledge, experience or training to pull off such a caper? Or is it more likely that the Wall Street titans stepped over the line and instead of increasing liquidity for the benefit of consumers and small businesses, used their position to deplete the resources of unsuspecting citizens, pension funds, financial institutions and governmental units from the top federal levels down to the smallest local geographical areas?

Countrywide settlement pays fraction to investors

By ALAN ZIBEL (AP) – Aug 3, 2010

WASHINGTON — Former shareholders of fallen mortgage giant Countrywide Financial Corp. are in line to recoup a fraction of their investments now that a Los Angeles judge has approved a settlement worth more than $600 million settlement.

The payoff doesn’t come close to compensating for the money lost by investors. But it could prompt more lenders to settle legal disputes at the center of the housing bust.

Bank of America, which bought Countrywide two years ago, agreed to pay $600 million to end a class-action case filed against the company. KPMG, Countrywide’s accounting firm, will pay $24 million.

Several New York pension funds who served as lead plaintiffs alleged that Countrywide hid how risky its business had become during the housing market’s boom years. Calabasas, Calif.-based Countrywide was once the nation’s largest mortgage lender.

The agreement stands to return about 40 cents per share of Countrywide’s common stock, before legal fees and expenses. Consider that the stock peaked at $45 a share in February 2007, before the financial crisis. So an investor who held 100 shares could bank on receiving $40 for an investment that was once worth $4,500.

Shareholders did receive 0.1822 shares of Bank of America’s stock for each share of Countrywide they owned when Bank of America acquired Countrywide. That worked out to about one share for every 5.5 shares of Countrywide stock. Shares of Bank of America closed at $14.34 on Tuesday. So that same 100 shares of Countrywide would be worth about $261 today in Bank of America stock.

Add the $40 from the settlement and those shares are now worth little more than $300.

Lawyers for the pension funds are requesting $56 million, or 4 cents per share, for fees and other costs.

Investors “will be compensated for a significant portion of the legal damages that they suffered as a result of what we believe was a violation of the securities laws,” said Joel Bernstein, a lawyer for the pension funds. “They won’t be compensated for every penny of that.”

Bank of America has been trying to put Countrywide’s legal problems behind it. In June, the Charlotte, N.C.-based company agreed to pay $108 million to settle the Federal Trade Commission’s charges that Countrywide collected outsized fees from about 200,000 borrowers facing foreclosure.

It reached a settlement Monday primarily to keep legal fees from escalating, a bank spokeswoman said.

“Countrywide denies all allegations of wrongdoing and any liability under the federal securities laws,” said Shirley Norton, a spokeswoman for Bank of America. “We agreed to the settlement to avoid the additional expense and uncertainty associated with continued litigation.”

Plaintiffs attorneys have pursed lawsuits against numerous lenders and investment banks in the wake of the housing market’s devastating downturn, and the Countrywide settlement could encourage even more such cases, said Paul Hodgson, a senior research associate at The Corporate Library, an independent corporate governance research firm.

“There are a lot of suits out there waiting to get launched,” Hodgson said. “I think this is the opening of the floodgates.”

Former Countrywide CEO Angelo Mozilo, former President David Sambol, former CFO Eric Sieracki and former board members were named in the litigation but are not contributing to the settlement.

But it does not end their legal problems. More than a year ago the Securities and Exchange Commission brought civil fraud charges against Mozilo and the two other former executives. Mozilo, the most high-profile individual to face charges from the government in the aftermath of the financial crisis, has denied any wrongdoing.

For Countrywide, “This is only a chapter and not the end of the book,” said John Coffee, a securities law professor at Columbia University.

Filed under: CASES, CDO, CORRUPTION, GTC | Honor, HERS, Investor, MODIFICATION, Mortgage, Servicer, bubble, education, evidence, expert witness, foreclosure, foreclosure mill, foreign relations, investment banking, trustee | Tagged: KPMG, countrywide, Bank of America, ALAN ZIBEL, AP, New York pension funds, Joel Bernstein | 3 Comments »

Consumer Law E-mail Groups

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NCLC and NACA sponsor a number of email groups for those representing consumer interests. These groups are not open to those who represent the industry that is the topic of the group or other adverse parties.
NATIONAL CONSUMER LAW CENTER E-MAIL GROUPS
1. Autofraud (Contact: Jon Sheldon) To join: owner-autofraud@lists.nclc.org
This is one of the oldest and most active consumer law e-mail groups with over 350 members, and much email traffic each day. The group focuses on many different issues related to motor vehicles, from financing to sales practices to lemons to repossessions. Like all NCLC e-mail groups, you can perform key-word searches in the archives for past e-mails.
2. Manufactured Homes (Contact: Odette Williamson)
To join: manufacturedhomes-request@lists.nclc.org and CC: owilliamson@nclc.org
If manufactured home cases ever come to your office, this is the e-mail group for you, covering issues of financing, defects, sales, and parks.
3. Student Loans (Contact: Deanne Loonin)
To join: studentloan-request@lists.nclc.org
(dloonin@nclc.org if experiencing technical problems)
This is NCLC’s first group, dating back over 10 years. The discussion covers student loan collections, offsets, vocational schools, and related topics.
4. FCRA – Fair Credit Reporting Act (Contact: Chi Chi Wu)
To join: cwu@nclc.org
A large group of experts exchanging ideas about credit reporting issues.
5. E-payments (Contact: Lauren Saunders) To join: http://lists.nclc.org/subscribe
This is the e-mail group for anyone concerned with the electronic payment of food stamps and other state benefits.
6. UtilityNetwork – Massachusetts (Contact: Charlie Harak)
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Covers issues of utility terminations, energy affordability, payment sources for utility bills, and low-income utility programs FOR MASSACHUSETTS ONLY.
7. EnergyNetwork – National (Contact: Charlie Harak, Olivia Wein, or John Howat)
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Covers issues of utility terminations, energy affordability, telephones, and low-income utility programs. Keep current on policy and programmatic issues.
8. Bankruptcy (Contact: John Rao) To join: http://lists.nclc.org/subscribe
This group is for legal services attorneys and pro bono coordinators and covers many issues relating to representation of low-income consumers in bankruptcy.
9. DC Updates (Contact: Lauren Saunders). To join: http://lists.nclc.org/subscribe
Provides updates on legislative and administrative developments in Washington, including agency comment opportunities and critical moments for legislative input. Open to NACA members and nonprofit consumer advocates (including non-attorneys).
10. California (Contact: Lauren Saunders). To join: http://lists.nclc.org/subscribe
Provides a forum for sharing of information on consumer law activities in California. Open to nonprofit attorneys and to NACA members willing to partner with or mentor nonprofit attorneys.
11. Carchange- Auto Ownership, Finance, and Policy (Contact John Van Alst)
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A new group for advocates seeking to improve the ability of low-income families to get, keep, and use a reliable, affordable car. Includes topics of car finance, sales, and ownership as well as anyone working on broader issues that affect access to transportation for low-income workers and their families (e.g., insurance, driver’s licenses, maintenance, etc.).
NATIONAL ASSOCIATION OF CONSUMER ADVOCATES E-MAIL GROUPS Tlie lists operated by NACA require NACA membership for admission to those lists.
12. Mortgage (Contact: Jeff Dillman) To apply for admission: jdillman@thehousingcenter.org
This NACA group has over 600 members and covers all aspects of protecting a homeowner against foreclosure, from predatory lending to servicer abuses.
13. Class Action (Contact: Steve Gardner) To apply for admission: sgardner@cspinetorg
The place to be if your office handles class actions, if you are interested in co-counseling with other NACA offices experienced in class cases, or if you just want to learn more about the class action remedy.
14. Stop Binding Mandatory Arbitration Campaign (Contact: Cora Ganzglass)
To join: cora@naca.net
This NACA list is to help build awareness and support for state and federal legislation that fights back against binding mandatory arbitration clauses.
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NACA Statewide listserves exist for NACA members in Alabama, Arkansas, Arizona, DC, Florida, Iowa, Idaho, Indiana, Kentucky, Louisiana, Massachusetts, Maryland, Michigan, Montana, North Carolina, New York, New Jersey, Nevada, Ohio, Oregon, Pennsylvania, South Carolina, Virginia, Washington state, and Wisconsin. The listserves provide support, share documents and information, call attention to recent developments, and facilitate group action to protect and promote consumer rights.
16. Military Statewide Listserves (Contact: Chris Wojcik) To join: chris@naca.net A special Military NACA list for military attorneys in any state.
17. Doing Well by Doing Good list (Contact: Chris Wojcik) To join: chris@naca.net A listserve open to all NACA members.

CLASS ACTION VIDEO

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GMAC FORECLOSING ON GM FAMILIES

Posted on August 3, 2010 by Foreclosureblues
GM, GMAC & the US Government… Have You No Shame?
Today, August 03, 2010, 2 hours ago | MandelmanGo to full article

Southern California (909)890-9192 in Northern California(925)957-9797

In 1984, General Motors and Toyota entered into a joint venture, and they called it the NUMMI plant in Freemont California. Up until May of 2010, NUMMI built an average of 6000 vehicles each week, or nearly eight million cars and trucks. GM saw the joint venture as an opportunity to learn about manufacturing from the Japanese company.

Then the financial meltdown of Wall Street came. Bankers constructed bonds that were designed to default, took advantage of holes in the ratings agencies systems, sold them around the world, leveraged themselves 30:1 and more, and profited immensely by betting against them with credit default swaps. It wasn’t the fault of the employees at GM’s NUMMI plant, they had nothing to do with it, but they were about to pay a steeper price than the Wall Street bankers would pay.

GM pulled out of the venture in June 2009, and several months later Toyota announced plans to pull out by March 2010. Roughly 5,000 people, many of whom had worked at the plant for twenty years would lose their jobs, their retirement plans… everything.

At 9:40am on April 1, 2010, the plant produced its last car, a red Toyota Corolla S. Production of Corollas in North America was moved to Canada. It was over.

The faces of the NUMMI plant.

Of course, it wasn’t the first time a GM plant had closed leaving thousands of workers without jobs, far from it. But this time it was different.

The NUMMI plant is in the Central Valley of California, the part of the state with the lowest literacy rates, and a favorite of home builders and Wall Street’s bankers. Billions of dollars were poured into the Central Valley and tens of thousands of homes were built and sold there during the real estate bubble. It would become Ground Zero of the foreclosure crisis.

The workers at the NUMMI plant were quite familiar with GMAC, because the mortgage lender was the only mortgage lender given access to the plant employees to sell them on refinancing their homes. “Put your cars, your credit cards… everything into a GMAC mortgage,” they were told at the numerous seminars held at the plant, “that way you won’t be in debt.”

GMAC actually had a booth inside the NUMMI plant… you could stop by for brochures 24/7 and 365 days a year. GMAC’s salespeople were on site at least two to three times a month to sell mortgages to plant workers. “GM employees pay no fees and no points with GMAC loans,” the workers were sold… I mean told. Everyone took out GMAC loans, it was like GMAC’s own personal gold mine.

Joe Phillippi, principal of AutoTrends, a consulting firm in Short Hills, N.J. said: “The thing that brought down GMAC was its sub-prime mortgage business.” GMAC lost $16.5 billion in its mortgage business from 2007 to 2009.

According to Bloomberg… GMAC Chief Executive Officer (for a month and a half of last year), and former Citibank executive, Michael Carpenter, was paid $1.2 million plus restricted stock options. He replaced former CEO Alvaro de Molina in mid-November of 2009, who received a $3.7 million salary.

But that’s not all… not even close. GMAC paid Chief Risk Officer Sam Ramsey $7.7 million, $5.7 million to Tom Marano, CEO of mortgage unit Residential Capital LLC. $4.9 million to finance chief Robert Hull, and Chief Marketing Officer Sanjay Gupta received about $4 million.

GMAC lost money in nine of the past 10 quarters. The company hasn’t reported earning a profit since the final quarter of 2008. The company posted a record $3.9 billion loss in the fourth quarter of 2009, and lost $10.3 billion for the year.

The Congressional Oversight Panel, in March of 2010 said that despite three separate bailouts of GMAC totaling $17.3 billion, GMAC Financial Services “continues to struggle with its troubled mortgage liabilities.”

The U.S. government now owns 56.3 percent of GMAC, which serves as the primary source of dealer and car buyer financing for GM and Chrysler. The Obama administration currently estimates that taxpayer losses on the GMAC bailout may be at least $6.3 billion.

The Congressional Oversight Panel said that bankruptcy, and merging GMAC back into GM, could have put GMAC on a sounder footing. Instead, the panel said, Treasury treated GMAC more like large banks such as Citigroup and Bank of America.

I just spent hours getting to know a couple that worked at the NUMMI plant for roughly twenty years. I don’t want to release their real name, so maybe we should just call them “THE DIRT FAMILY,” because that’s exactly how they’ve been treated by GMAC as they tried to apply for a loan modification.

They began their application for a loan modification in July 2009, they were current and had excellent credit… something in the FICO 750 range.

So, first they were told they had to be delinquent. Then, when they went delinquent, they were declined because the husband was told that he made enough to make the mortgage payment. They applied again… and were declined because he was told that he didn’t make enough to qualify for the loan modification.

Are we having fun yet?

They turned to Bruce Marks’ traveling tent show of an non-profit organization, NACA, for help. NACA said they’d put them at the front of the line, but months went by and nothing from NACA. A sale date was set and NACA told the DIRTS they would have to file bankruptcy to stop the sale, so they did, but within days GMAC filed for the removal of the stay, although no new sale date was scheduled.

NACA wanted to wait until MR. DIRT actually lost his job, saying that this would make obtaining the modification easier. GMAC sent a letter to the DIRT’S bankruptcy attorney saying that they couldn’t negotiate unless the lawyer signed a letter saying it was okay to speak directly with the DIRTS. Apparently GMAC was aware of California Civil Code 2923.5, which says the bank must engage in meaningful discussions with a homeowner about alternatives to foreclosure before they foreclose.

The bankruptcy lawyer signed the letter. GAMC never contacted the DIRTS to talk about anything. GMAC won’t tell them if there’s another sale date set. GAMC says they never got anything from NACA.

Next thing they hear is that they’re house is being auctioned in a matter of days. They hire a law firm to try to stop the sale. The DIRTS and their new law firm ask GMAC who is the owner of their loan. GMAC says its GMAC. As it turns out it’s Fannie Mae.

GMAC won’t postpone the sale. Why? Not enough time. GMAC says the DIRT’S waited until the last minute… they procrastinated… they’re procrastinators, shame on them.

He worked 21 years at the NUMMI plant. Four more years and he would have earned his retirement pension. She worked at the plant until she was injured on the job… GM’s work comp doctor said the pain was all in her head… until she needed multiple back and shoulder surgeries… didn’t sue GM because he was going to make supervisor. They raised three children. Next year will be twenty years of a loving marriage. Hard work, but his life was in that plant… until it wasn’t.

And GMAC sold their home. They couldn’t wait. Apparently the Central Valley needs another empty foreclosed home. Here’s the letter they found on their door the next day. It was from Steve Ewing of Keller Williams Realty in the Central Valley of California:

Steve Ewing
Keller Williams Realty
2291 West March Lane, Suite D-210
Stockton, CA 95207
THE NINES TEAM AT KELLER WILLIAMS, CENTRAL VALLEY

We all need a little help in difficult times…

We have been hired by the new owners of this property to bring it to market as quickly as possible. This bank owned property must be sold VACANT.

It is possible that we may be able to provide some financial help for your immediate move.

TIME IS NOT ON YOUR SIDE, PLEASE DON’T MISS THIS OPPORTUNITY!!

PLEASE CONTACT STEVE EWING
PHONE: 209-625-8231 begin_of_the_skype_highlighting 209-625-8231 end_of_the_skype_highlighting
FAX: 866-790-8285
EMAIL: STEVE@THENINESTEAM.NET

ALL OF OUR CONVERSATIONS ARE CONFIDENTIAL

Are they, Steve? You scavenger piece of crap. Are all of your conversations confidential? Just between us girls, is that what you were thinking would be the case? Well, surprise, Steve-O, because I hate secrets. And it’s no secret that you are an inconceivably inconsiderate and insensitive jackass who doesn’t deserve to stand within a hundred yards of anyone in this family.

Do you even know what a real day’s work is Steverino? Because the father in this family definitely does, while you… you puny pompous paper pusher in search of his next commission… obviously doesn’t. How dare you leave a letter like that on their door, and then weasel away in your Mercedes, or whatever kind of import car I’m betting you scamper around in. Did you even know there was a GM plant near by? Did you ever stop to care about the people that worked hard there… that gave their lives there?

No, Mr. Earwhig, I’m telling you that you didn’t care then, and you care even less now. These are people in your community that need your help… your empathy… your understanding… not your asinine “time is not on your side” threatening notes.

So, I have a suggestion for you and Keller Williams… leave this family alone. Don’t go knocking on their door… in fact, don’t bother them at all. They’ve already been inconceivably and undeservedly been treated like DIRT by GM, GMAC and my federal government, they certainly don’t need to concern themselves with the likes of you.

Besides, they’re filing a lawsuit asap, so don’t plan on selling that house anytime soon anyway.

And GMAC… I have only just begun to uncover what unethical, incompetent, money-grubbing, greedy predatory pigs you guys are. You haven’t heard anywhere near the last of me… no you haven’t… I’m just warming up, as far as you’re concerned.

Now you want to be known as “Ally Bank?” Because you actually think that’s how we’re going to think of you? Like our “ally”? Well, bang up job so far, you ally you. With allies like you, who needs the axis?

Now… GMAC, GM, and the Obama Administration… you have a responsibility to these people whose lives you’ve so carelessly thrown by the wayside. These are people that built 8 million cars and trucks in and for this country, so the way I see it, they are responsible for creating a whole lot more jobs in this country than this or any administration has, I’ll say that for sure. So, Mr. President, its time to do the right thing.
GMAC has to act human here. Taxpayers bailed them out to the tune of $17.3 billion. And for what? Was GMAC was too PIG to fail?
LIKE A ROCK, RIGHT?
Well, you’re going to just LOVE this!

Here’s GMAC Corp. contact information, which is found on their Website here:
https://www.gmacmortgage.com/About_Us/Company_Info/OperatingCenters.html
It shows the following under “About Us” and Company Info:
GMAC Mortgage Corporate Headquarters
1100 Virginia Drive
Fort Washington, PA 19034
(215) 734-8899

SEE WHAT HAPPENS WHEN YOU CALL THE NUMBER… COME ON… IT’S REALLY WORTH IT, I SWEAR IT IS. GRAB YOUR CELL RIGHT NOW AND CALL THE CORPORATE NUMBER FOR GMAC AFTER WE TAXPAYERS PUT $17.3 BILLION INTO IT. IT ONLY TAKES A MINUTE…
LIKE A ROCK! SING IT WITH ME… LIKE A ROCK!

Now, here’s a song performed by one of the unemployed workers from NUMMI:

Mandelman OUT!
Southern California (909)890-9192 in Northern California(925)957-9797

Gator Bradshaw and the BASICS

CASE INTERPRETATION BY ATTORNEY NEIL GARFIELD of livinglies:
“The real party in interest in relief from stay is whoever is entitled to enforce the obligation
sought to be enforced. Even if a servicer or agent has authority to bring the motion on
behalf of the holder, it is the holder, rather than the servicer, who must be the moving
party, and so identified in the papers and in the electronic docketing done by the moving
party’s counsel.”
For 2 years I have been saying “stick with the basics.” Black Letter Law will set you free. But
time and again attorneys, pro se litigants and judges go astray and find themselves in never-never
land. Most attorneys and Judges take preliminary motions with a grain of salt. Virtually all
foreclosures would be eliminated if lawyers and judges paid attention to the very beginning of
the case. Gator Bradshaw in Florida delivers a nice piece at our seminar on motion practice.
Your job is to immediately focus the Judge’s attention on the fatal defects presented by the
actions of the intermediaries in the securitization process and more specifically, whoever is
attempting to foreclose. By failing to challenge this at the outset you have effectively waived the
issue and now face an uphill battle. This case reported below shows that a mere objection from
the Trustee in BK Court caused the entire claim of the forecloser to completely collapse.
Seven (7) months ago, before any of the landmark decisions reported on these pages, Federal
Bankruptcy Judge Myers in Idaho was presented with an objection from the Trustee to Motion
for Relief From Stay.
The fact that the Trustee took up the cause is reason enough to note this case. What the Court did
with it, in an articulate, well-reasoned memorandum of decision, is nothing short of startling in
its clarity.
One by one, this Judge takes down the arguments and tactics of the intermediaries in the
securitization chain and basically says that none of them has a right to make a claim.
In short, just as in these pages, the Judge doesn’t say who CAN assert and enforce the claim; he
just says that none of these nominees, intermediaries, conduits, bookkeepers, servicers, MERS,
or pretender lenders has any pecuniary interest in the outcome and therefore they lack standing to
be in court. On jurisdictional grounds, therefore, the case is closed and these interlopers are
thrown out of court. Will the REAL Lender please stand up? Maybe, maybe not.
The Judge points out that “The Motion further alleges that Debtors were indebted at filing “to
Movant” and that the debt arose out of a promissory note and a deed of trust dated September 20,
2006 “naming Movant as beneficiary.”
Judge Myers calmly and correctly points out that this was a total lie. When pressed, the
attorney acknowledged that the movant was not owed any money and that MERS was
merely an agent for an undisclosed principal for an undisclosed purpose acting
purportedly for the real party in interest. But the Judge says quite clearly and correctly
that the rules require the real party in interest to be the movant.
This Judge also addresses the issue of burden of proof, a sticking point for many readers of this
blog. He states that the burden is on the movant to prove standing, not on the homeowner or
petitioner to prove lack of standing. In fact, pointing to the rules again, he says that the pleading
must “[p]rovide the details of the underlying obligation or liability upon which the motion
is based;”
In a stroke of his pen, this Judge ends the issue over who has the burden of proof and even
provides grounds BEFORE DISCOVERY for dumping fraudsters out of court. They must plead
the allegations, and they must attach documentation that shows their pleadings are true and
correct.
This Judge is telling fraudsters to stop coming to court with attorney affidavits that are not
evidence (see his memorandum) and to stop submitting affidavits, notes, revisions to notes, late
indorsements, assignments that don’t match up with the pleadings or the requirements of
pleading.
Edited by MSFraud.org
1 All chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532,
unless otherwise indicated.
2 In 2008, this Court saw over 2,300 stay relief motions in the 5,224 cases filed.
3 See Local Bankruptcy Rule 4001.2 (addressing substantive and procedural
requirements for stay relief motions, and providing for entry of orders upon absence of objection
after notice).
MEMORANDUM OF DECISION – 1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF IDAHO
IN RE )
) Case No. 08-20381-TLM
DARRELL ROYCE SHERIDAN, )
SHERRY ANN SHERIDAN, )
) Chapter 7
Debtors. )
________________________________ )
MEMORANDUM OF DECISION
________________________________________
INTRODUCTION
In this Chapter 7 case, the trustee, Ford Elsaesser (“Trustee”), objects to a
motion under § 362(d) for relief from the § 362(a) automatic stay.1 Motions under
§ 362(d) are common in bankruptcy cases.2 Most stay relief requests proceed
promptly to entry of an order, after proper notice, without any objection.3
However, changes in mortgage practices over the past several years have
created a number of new issues. The one highlighted in this case is the standing of
4 There was no objection, and the exemption was therefore allowed. Taylor v. Freeland
& Kronz, 503 U.S. 638, 643-44 (1992); Rainsdon v. Farson (In re Farson), 387 B.R. 784, 797
(Bankr. D. Idaho 2008). Debtors indicated in their § 521 statement of intention that they would
(continued…)
MEMORANDUM OF DECISION – 2
the moving creditor. Serial assignments of the mortgagee’s interest(s) and the
securitization of mortgages have complicated what was previously a generally
straight-forward standing analysis. Though many creditors provide in their
motions adequate explanation and documentation of their standing to seek relief
on real estate secured debts, Trustee challenges the adequacy of the subject motion
in this case.
Following hearing and consideration of the arguments of the parties, the
Court determines that Trustee’s objection is well taken and the same will be
sustained. The motion for stay relief will be denied.
BACKGROUND AND FACTS
On June 24, 2008, Darrell and Sherry Ann Sheridan (“Debtors”) filed their
joint chapter 7 bankruptcy petition, schedules and statements. They scheduled a
fee ownership interest in a residence located in Post Falls, Idaho. See Doc. No. 1
at sched. A (the “Property”). Debtors asserted the Property’s value was
$225,000.00. Id. They indicated secured claims existed in favor of “Litton Loan
Servicing” ($197,000.00) and “Citimortgage” ($34,000.00). Id. at sched. D.
While this left no apparent equity in the Property, Debtors nevertheless claimed
the benefit of an Idaho homestead exemption. Id. at sched. C.4
4 (…continued)
reaffirm the secured debts on the Property.
5 Closing of the case as a no asset chapter 7 would constitute an abandonment of the
Property as a scheduled but not administered asset, see § 554(c), and the automatic stay would
terminate, see § 362(c)(1).
6 Mortgage Electronic Registration Systems, Inc. refers to itself, and is generally referred
to by others and in the case law, as “MERS.”
MEMORANDUM OF DECISION – 3
The § 341(a) meeting of creditors occurred on July 31, 2008. Debtors
received a discharge on October 3, 2008. While the case was noticed to creditors
as a “no asset” chapter 7, and though Trustee concedes there will be no anticipated
distribution to creditors, Trustee has not yet filed his final report of no distribution
which would allow the case to close.5
On October 16, 2008, the subject motion for relief from stay was filed. See
Doc. No. 21 (the “Motion”). It was filed by “Mortgage Electronic Registration
Systems, Inc. as nominee HSBC Bank USA, National Association, as Indenture
Trustee of the Fieldstone Mortgage Investment Trust Series 2006-3.” Id. at 1 (the
“Movant”).6 The Movant characterized itself as a “secured creditor and
Claimant.” Id. The Motion further alleges that Debtors were indebted at filing “to
Movant” and that the debt arose out of a promissory note and a deed of trust dated
September 20, 2006 “naming Movant as beneficiary.” Id.
Attached to the Motion is a promissory note (the “Note”) executed by
Debtors. It is payable to “Fieldstone Mortgage Company” as the “Lender.” See
7 The documents attached to the Motion were admitted into evidence at the final hearing,
by stipulation of the parties, as “Exhibit 1.”
8 A “final hearing” is contemplated under § 362(d) and (e). That it would be an
evidentiary hearing is a result of the presence of material, disputed facts, which under Fed. R.
Bankr. P. 9014(d) requires testimony in the same manner as in an adversary proceeding.
MEMORANDUM OF DECISION – 4
Ex. 1.7 A portion of the Note states: “I understand Lender may transfer this Note.
Lender or anyone who takes this Note by transfer and who is entitled to receive
payments . . . is called the Note Holder.”
The Note is secured by a deed of trust dated September 20, 2006 and
recorded in the real property records of Kootenai County, Idaho, on September 22,
2006 (the “Deed of Trust”). The Deed of Trust at paragraph (C) identifies and
defines the “Lender” as “Fieldstone Mortgage Company, a Maryland corporation.”
Paragraph (E) of the Deed of Trust recites:
MERS is a separate corporation that is acting solely as nominee for
Lender and Lender’s successors and assigns. MERS is the beneficiary
under this Security Instrument.
Ex. 1.
Trustee objected to the Motion, contending that the Movant failed to
establish its interest in the Property or its standing to seek stay relief. Doc. No. 23.
At a preliminary hearing on November 4, 2008, the parties requested a final
hearing because the question of standing remained unresolved.8 A final hearing
was held on December 16, 2008, at which Trustee and counsel for Movant made
argument, but no evidence was presented other than the documents that, as noted
9 The Code establishes time frames for preliminary hearing, final hearing and ruling.
See § 362(e)(1), (2). In this case, the Motion was originally filed October 16, 2008. Under
§ 362(e)(2), the stay generally “shall terminate on the date that is 60 days after a request is made
by a party in interest” if the case is one under chapters 7, 11 or 13 and the debtor is an individual.
However, that period may be extended by either agreement of the parties or by the Court for good
cause. See § 362(e)(2)(B). Here, the scheduling of the hearings resulted in a final hearing on
December 16, 2008, about the 60th day after the request. This delay was by or with concurrence
of the parties. The Court concludes that additional delay to the date of this Decision was required
to address the contentions of the parties.
10 Another ground for stay relief with respect to acts against property is an absence of
equity in such property coupled with a lack of necessity of such property for an effective
reorganization. See § 362(d)(2). The Motion indicated a lack of equity in the Property and, in
light of the fact that this is a chapter 7 liquidation, the Property is not required for reorganization.
MEMORANDUM OF DECISION – 5
above, were admitted by agreement.9
DISCUSSION AND DISPOSITION
A. Stay relief requires a motion by a party in interest with standing
The Bankruptcy Code, Bankruptcy Rules and this District’s local rules
govern stay relief requests.
Under the Code, relief from the § 362(a) stay is authorized “[o]n request of
a party in interest and after notice and a hearing, . . . .” See § 362(d) (emphasis
added). See also § 362(e)(1) and (2), § 362(f), § 362(j) (all referring to requests
made by a “party in interest.”) One ground for stay relief is “cause, including the
lack of adequate protection of an interest in propertyof such party in interest[.]”
§ 362(d)(1) (emphasis added). The Motion here alleged “cause” based on
delinquent payments, see Doc. No. 21 at 2, thus implicating § 362(d)(1) even
though no specific citations to § 362(d)(1) are made.10
MEMORANDUM OF DECISION – 6
The Rules require that a stay relief request be made by a motion. See Fed.
R. Bankr. P. 9013 (“A request for an order, except when an application is
authorized by these rules, shall be by written motion, unless made during a
hearing.”) (emphasis added); Fed. R. Bankr. P. 4001(a)(1) (“A motion for relief
from an automatic stay provided by the Code . . . shall be made in accordance with
Rule 9014[.]”) (emphasis added).
In addition to the Bankruptcy Rules, this District’s local rules require, inter
alia, that:
– the request shall be made by a “party in interest” and by “motion;”
– the motion shall “[p]rovide the details of the underlying obligation or
liability upon which the motion is based;” and
– the motion shall have attached “accurate and legible copies of all
documents evidencing the obligation and the basis of perfection of
any lien or security interest[.]”
LBR 4001.2(a), (b)(2), and (b)(5).
1. Party in interest, and standing
While the term “party in interest” is not defined by the Code, this Court has
held that such a party must have a “pecuniary interest” in the outcome of the
dispute before the Court. See In re Simplot, 2007 WL 2479664 at *9 n.45 (Bankr.
D. Idaho Aug. 28, 2007) (citing In re Elias, 05.2 I.B.C.R. 41, 42, 2005 WL
4705220 (Bankr. D. Idaho 2005), and In re Stone, 03.2 I.B.C.R. 134, 135 (Bankr.
MEMORANDUM OF DECISION – 7
D. Idaho 2003)). See also Brown v. Sobczak (In re Sobczak), 369 B.R. 512, 517-
18 (9th Cir. BAP 2007) (noting that a “party in interest” may be one who has an
actual pecuniary interest in the case, one who has a practical stake in the outcome
of the case, or one who will be impacted in any significant way in the case).
Simplot not only defined party in interest, it addressed “standing” issues.
The question there was whether the J. R. Simplot Company, which was not a
creditor with a claim against the debtor or estate, “had sufficient party in interest
standing to be heard[.]” 2007 WL 2479664 at *9. This Court stated:
Hasso v. Mozsgai (In re La Sierra Fin. Servs.), 290 B.R. 718 (9th Cir.
BAP 2002), explained that the doctrine of standing encompasses both
constitutional limitations on federal court jurisdiction (i.e., the case or
controversy requirements of Article III), and prudential limitations on
the court’s exercise of that jurisdiction. Constitutional standing
requires an injury in fact, viz. an invasion of a judicially cognizable
interest. 290 B.R. at 726-27. Prudential standing requires that the
party’s assertions fall within the zone of interests protected by the
statute and, further, requires that the litigant assert only its own rights
and not those of another party. Id. at 727 (citing Bennett v. Spear, 520
U.S. 154, 162, 167-68 (1997). The party asserting standing exists has
the burden of proving it. Id. at 726. Though sometimes articulated in
the cases as principles applicable to standing on appeal, the same
propositions apply to a party at the bankruptcy court level.
Id. (footnote citations omitted). In Simplot, the Court concluded that “parties may
not assert . . . objections that relate solely to others, or that go to issues that do not
directly and adversely affect them pecuniarily.” Id. at *10 (footnote citations
omitted). These same standing requirements were recently highlighted in a stay
relief context by the court in In re Jacobson, ___ B.R. ___, 2009 WL 567188 at
MEMORANDUM OF DECISION – 8
*5-6 (Bankr. W.D. Wash. Mar. 6, 2009).
2. Real party in interest
Under Rule 9014, which by virtue of Rule 4001(a)(1) governs stay relief
requests, certain “Part VII” rules are applicable. See Rule 9014(c). Among those
incorporated rules is Rule 7017, which in turn incorporates Fed. R. Civ. P. 17, and
Rule 17(a)(1) provides that “An action must be prosecuted in the name of the real
party in interest.”
Jacobson notes that its moving party, who claimed to be a servicer for the
holder of the note, “neither asserts beneficial interest in the note, nor that it could
enforce the note in its own right.” 2009 WL 567188 at *4. It concluded that Fed.
R. Civ. P. 17 applied, requiring the stay relief motion to be brought in the name of
the real party in interest. Id. (citing In re Hwang, 396 B.R. 757, 767 (Bankr. C.D.
Cal. 2008)); see also In re Vargas, 396 B.R. 511, 521 (Bankr. C.D. Cal. 2008). As
Jacobson summarized:
The real party in interest in relief from stay is whoever is entitled to
enforce the obligation sought to be enforced. Even if a servicer or
agent has authority to bring the motion on behalf of the holder, it is the
holder, rather than the servicer, which must be the moving party, and
so identified in the papers and in the electronic docketing done by the
moving party’s counsel.
Id.
The upshot of these several provisions of the Code, Rules, local rules and
case law is this: to obtain stay relief, a motion must be brought by a party in
interest, with standing. This means the motion must be brought by one who has a
11 The Ninth Circuit’s recent decision in Reusser v. Wachovia Bank, 525 F.3d 855 (9th
Cir. 2008) does not require a different conclusion. Reusser held that a lender, Wachovia Bank,
did not violate the automatic stay by seeking to foreclose on the debtors’ property after the
bankruptcy court granted the loan servicer’s (Washington Mutual) § 362(d) motion. Id. at 861-
62. Although Wachovia did not join in the motion or separately seek stay relief, the court held
that the order entered “as to Washington Mutual” was effective as to Wachovia. Id. at 857, 861.
Notably, however, the Reussers never challenged Washington Mutual’s standing in bankruptcy
court; instead, they launched that attack in a subsequently filed district court action. Id. at 861-
62. The Ninth Circuit held that “a final order lifting an automatic stay is binding as to the
property or interest in question—the res—and its scope is not limited to the particular parties
before the court.” Id. at 861. The difference here is that Trustee has timely objected to Movant’s
standing and, of course, no final order has been entered.
MEMORANDUM OF DECISION – 9
pecuniary interest in the case and, in connection with secured debts, by the entity
that is entitled to payment from the debtor and to enforce security for such
payment. That entity is the real party in interest. It must bring the motion or, if
the motion is filed by a servicer or nominee or other agent with claimed authority
to bring the motion, the motion must identify and be prosecuted in the name of the
real party in interest.11
B. The present Motion
Under the documents attached to the Motion and later admitted at hearing
as Ex. 1, Fieldstone Mortgage Company, a Maryland corporation, would certainly
appear to be a party in interest and have standing. It has an economic interest
according to the Note attached to the Motion and an interest in Debtors’ Property
according to the Deed of Trust that is also attached.
However, the Motion was not brought by Fieldstone Mortgage Company.
12 Idaho Code § 45-1502(1) defines beneficiary for purposes of the trust deed statute as
“the person named or otherwise designated in a trust deed as the person for whose benefit a trust
deed is given, or his successor in interest, and who shall not be the trustee.” Idaho Code § 45-
1502(3) defines trust deed as “a deed executed in conformity with this act and conveying real
property to a trustee in trust to secure the performance of an obligation of the grantor or other
person named in the deed to a beneficiary.” Id. (emphasis added).
MEMORANDUM OF DECISION – 10
1. MERS as “nominee” or “beneficiary”
Counsel for Movant argues that MERS, given its titular designation of
“beneficiary” under the Deed of Trust, is or should be able to prosecute the
Motion under the Code, Rules and Local Rules. Counsel conceded, however, that
MERS is not an economic “beneficiary” under the Deed of Trust. It is owed and
will collect no money from Debtors under the Note, nor will it realize the value of
the Property through foreclosure of the Deed of Trust in the event the Note is not
paid.12
Further, the Deed of Trust’s designation of MERS as “beneficiary” is
coupled with an explanation that “MERS is . . . acting solely as nominee for
Lender and Lender’s successors and assigns.” Ex. 1 (emphasis added). Movant’s
briefing suggests that a “nominee” is synonymous with an “agent.” See Doc. No.
26 at 2.
The Motion was filed by MERS “as nominee [for] HSBC Bank USA,
National Association, as Indenture Trustee of the Fieldstone Mortgage Investment
Trust Series 2006-3.” Even assuming that MERS as a “nominee” had sufficient
rights and ability as an agent to advance its principal’s stay relief request, there
13 The Motion uses several terms (Movant, Claimant, Petitioner) without definition or
evident consistency. The Motion commenced as follows:
“COMES NOW Mortgage Electronic Registration Systems, Inc. as nominee
HSBC Bank USA, National Association, as Indenture Trustee of the Fieldstone
Mortgage Investment Trust Series 2006-3, a secured creditor and Claimant
herein, and moves the Court for its Order granting relief from the automatic
stay[.]”
Thus, the “Claimant” and evidently the “Movant” (i.e., the party who “COMES NOW . . . and
moves”) are one and the same, and this entity also purports to be a “secured creditor.” Since
MERS is acting as nominee, the Claimant/Movant and secured creditor appears by these
allegations to be HSBC Bank USA (in its role as indenture trustee for others). The Motion
continues by asserting that “Debtor was on the date of filing the petition herein, indebted to
Claimant arising out of [the Note] and a Deed of Trust dated September 20, 2006, naming
Movant as beneficiary.” Contrary to these assertions, the Deed of Trust does not name HSBC
Bank USA or the Fieldstone Mortgage Investment Trust as its beneficiary. Nor is there
explanation of how Debtors came to owe HSBC Bank USA.
14 This language appears in the Deed of Trust only. There is no mention of MERS in the
Note.
MEMORANDUM OF DECISION – 11
remains an insuperable problem. The Motion provides no explanation, much less
documentation or other evidence, to show that the Fieldstone Mortgage
Investment Trust Series 2006-3 (as an entity) or HSBC Bank USA (as that entity’s
“indenture trustee”) has any interest in the subject Note or the subject Deed of
Trust.13
In light of Trustee’s objection on this score, Movant argues that MERS’
role as “nominee for Lender [i.e., Fieldstone Mortgage Company] and Lender’s
successors and assigns” gives it ample authority to assert the stay relief request
under the Deed of Trust for whatever successor in interest or assignee might have
the beneficial interest.14 Even if the proposition is accepted that the Deed of Trust
15 Some courts have indicated that the stay relief request should explain the serial
assignments resulting in the movant becoming the holder of the note. See, e.g., In re Hayes, 393
B.R. 259, 269 (Bankr. D. Mass. 2008) (“The Court and the Debtor are entitled to insist that the
moving party establish its standing in a motion for relief from stay through the submission of an
accurate history of the chain of ownership of the mortgage.”); In re Maisel, 378 B.R. 19, 22
(Bankr. D. Mass. 2007) (“‘If the claimant acquired the note and mortgage from the original lender
or from another party who acquired it from the original lender, the claimant can meet its burden
through evidence that traces the loan from the original lender to the claimant.’”) (quoting In re
(continued…)
MEMORANDUM OF DECISION – 12
provisions give MERS the ability to act as an agent (“nominee”) for another, it
acts not on its own account. Its capacity is representative.
2. Documentation
This District’s Local Bankruptcy Rule 4001.2 requires copies of “all
documents evidencing the obligation and the basis of perfection of any lien or
security interest.” The sole documentation provided with the Motion here
evidences the interests in the Note and Deed of Trust held by Fieldstone Mortgage
Company, a Maryland corporation. This submission does not answer the key
question — Who was the holder of the Note at the time of the Motion?
Several movants for stay relief have argued that the holder of a note secured
by a deed of trust obtains the benefit of the deed of trust even in the absence of an
assignment of the deed of trust, on the theory that the security for the debt follows
the debt. Under this theory, it would appear that when bankruptcy intervenes, and
somewhat like a game of Musical Chairs, the then-current holder of the note is the
only creditor with a pecuniary interest and standing sufficient to pursue payment
and relief from stay.15
15 (…continued)
Parrish, 326 B.R. 708, 720 (Bankr. N.D. Ohio 2005)). The court in Jacobson decided that it
“need not here go so far” as to require such tracing, because of the paucity of proof presented in
that case. 2009 WL 567188 at *6. The same is true here. Movant’s proof does not even show
who presently holds the Note. That alone provides sufficient basis to deny the Motion.
MEMORANDUM OF DECISION – 13
The Motion here certainly suggests that the Fieldstone Mortgage
Investment Trust Series 2006-3 (or perhaps HSBC Bank USA in its capacity as
indenture trustee for that trust) was the holder of the note on the June 24, 2008,
petition date. But at the time of the final § 362(e) evidentiary hearing herein, the
parties discussed and Movant ultimately conceded that (I) the Note contained
nothing indicating its transfer by Fieldstone Mortgage Company, (ii) the Motion
was devoid of allegations regarding the details of any such transfer, and (iii) the
record lacked any other documents related to the issue.
3. The supplemental affidavit
Subsequent to the closing of the hearing and after the Court took the
dispute under advisement, Movant filed a “supplemental affidavit” of its counsel.
See Doc. No. 28 (filed January 2, 2009). This affidavit alleges that Movant’s
counsel obtained on such date the “original” Note and that the same contains an
indorsement. Counsel states that his “affidavit is presented to supplement the
record herein and for the Court’s consideration in the pending motion[.]” Id. at 2.
The filing and consideration of this supplemental affidavit are improper for
several reasons.
16 Accord Jacobson, 2009 WL 567188 at *6-8 (discussing inadequacies of evidentiary
submissions).
MEMORANDUM OF DECISION – 14
First, the record was closed, and the Court did not authorize the reopening
of that record, nor did it indicate any post-hearing submissions would be accepted.
Second, Trustee did not have the opportunity to address this “newly
obtained” document at hearing, and nothing shows his consent to the post hoc
supplementation of the evidentiary record.
Third, disputed factual issues in contested matters may not be resolved
through testimony in “affidavits” but rather require testimony in open court. See
Fed. R. Bankr. P. 9014(d). Under the circumstances, the identity of the holder of
the Note certainly appears to be a fact in dispute falling within the ambit of this
rule.
Fourth, the affidavit is insufficient to establish that counsel, as affiant, has
the ability to testify regarding or lay the foundation required to admit the
document. See Esposito v. Noyes (In re Lake Country Invs., LLC), 255 B.R. 588,
594-95 (Bankr. D. Idaho 2000).16 The assertion that the newly possessed note is
the “original” appears to be based not on the affiant’s (counsel’s) personal
knowledge but on the assertions of someone else.
Fifth, the proffer of this “new” note as the “original” note directly
contradicts Movant’s prior representations that the Note attached to the Motion
17 See generally Idaho Code § 28-3-205(2) (“When indorsed in blank, an instrument is
payable to the bearer and may be negotiated by transfer of possession alone until specially
indorsed.”); § 28-3-301 (providing that the holder of the instrument may enforce it). These
provisions make identification of the current holder significant.
MEMORANDUM OF DECISION – 15
was “true and correct” and the operative document in this matter. See Doc. No. 21
at 1.
Sixth, even were it considered, the “new” Note’s asserted indorsement
states: “Pay To The Order Of [blank] Without Recourse” and then purports to be
signed by Fieldstone Mortgage Company through a named assistant vice
president. There is no date nor indication of who was or is the transferee.
Fieldstone Mortgage Company may have indorsed the Note in blank, but this
document does not alone establish that either HSBC Bank USA or Fieldstone
Mortgage Investment Trust is the Note’s holder.17
Thus, even if a “nominee” such as MERS could properly bring a motion for
stay relief in the name of and on behalf of the real party in interest – the entity that
has rights in and pecuniary interest under the Note secured by the Deed of Trust –
nothing of record adequately establishes who that entity actually is. Under the
evidence submitted at the § 362(e) final hearing, which consists solely of Exhibit
1, the only entity that MERS could conceivably represent as an agent/nominee
would be Fieldstone Mortgage Company. But MERS does not represent that party
according to the Motion and, in fact, its contentions are to the effect that
18 For this reason, Movant’s reliance on In re Huggins, 357 B.R. 180 (Bankr. D. Mass.
2006) is misplaced. Huggins held that MERS, which was named in a mortgage as the lender’s
nominee, had standing to seek stay relief. Id. at 184-85. But in Huggins, the original lender
continued to hold the note, and the mortgage had not been transferred. Id. at 182, 184.
19 See Fed. R. Bankr. P. 9011(b) (providing inter alia that a motion’s filing or other
presentation constitutes a certification that there has been an “inquiry reasonable under the
circumstances” and that factual allegations made “have evidentiary support or, if specifically so
identified, are likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery”). Trustee here was clear, though, that he asserted no Rule 9011
claims against Movant or its counsel.
MEMORANDUM OF DECISION – 16
Fieldstone Mortgage Company is no longer a party in interest.18
At the time of that final hearing, counsel for Movant conceded that he had
no documentation provided to him by his “client” which indicated the interests
under the Note or Deed of Trust were held by either HSBC Bank USA or the
Fieldstone Mortgage Investment Trust. Counsel filed the Motion and
characterized the Movant’s identity therein based solely on undocumented
representations made to him. This would appear to be a problematic approach
generally.19 And, in this particular case, Trustee’s objection to the Motion put the
matter at issue and Movant to its proof.
CONCLUSION
When Trustee challenged the Motion’s bare assertions, Movant failed to
provide an adequate record showing it was a party in interest with standing
entitled to seek such relief. On the record presented, the Court finds and
concludes Trustee’s objection is well taken. That objection will be sustained. The
Motion will be denied. The Trustee will provide a form of order for the Court’s
MEMORANDUM OF DECISION – 17
review and entry.
DATED: March 12, 2009
TERRY L. MYERS
CHIEF U. S. BANKRUPTCY JUDGE

MERS to big to punish

The issue before the court boils down to whether MERS qualifies for certain exemptions from corporate tax registration required under section 23305 of the California Revenue and Tax Code. If it does not qualify for exemption, then MERS’ contracts are voidable under White Dragon Productions, Inc. vs. Performance Guarantees, Inc. (1987)
196 Cal.App.3d 163, and MERS may not appear to defend itself in this matter. (While Defendant presents a contrary 9th circuit decision on the issue of voidability of contract, the doctrine of stare decisis prevents the court from choosing to elect to follow that advisory opinion over California’s own precedent. Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962). In Auto Equity Sales, the Court explained:
Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.” Therefore, White Dragon controls.)

With regard to the matter instantly before the court, MERS’ claimed exemptions are laid out at Corporations Code sections 191(c)(7) and 191(d)(3). Each of these statutory provisions provides narrow grounds for a foreign corporation to gain exemption from registration with our Secretary of State and payment of taxes so long as that corporation meets certain requirements and only conducts certain limited activities.
To rule on the question of MERS’ exemption under Corp. Code section 191(c)(7), the court must make three determinations: first, the court must make a legal determination as to the meaning of the language “creating evidences” in the statute; second and third, the court must make factual determinations to what activities MERS has been alleged in the FAC to have been conducting, and whether those activities are “creating evidences” and thereby exempted.
To answer the question of MERS’ exemption under Corp. Code section 191(d)(3), the court need make only two factual determinations, which are: is MERS a foreign lending institution, and if so, does it own the instant note, or any note in any of the thousands of MERS foreclosures in this state?
Finally, the court must decide whether, under either section, the operation of a database, selling memberships, and providing access to a database constitute exempted activities, and whether the acting as an agent of an exempt institution extends the exemption to MERS?

II. ARGUMENT
A. MERS DOES NOT QUALIFY FOR EXEMPTION UNDER CORPORATIONS
CODE SECTION 191(c)(7) BECAUSE 1) THE RULES OF STATUTORY
INTERPRETATION FORBID RENDERING SUBSECTION (d)(3) TO BE DEAD
LETTER; 2) ALL OF MERS’ ACTIVITIES GO BEYOND THE PLAIN MEANING
OF THE TERM, AND 3) NONE OF MERS’ ACTIVITIES COMPRISE THE PLAIN
MEANING OF THE TERM.
1. A Finding That MERS’ Foreclosure Activities Constitute Merely “Creating Evidences” Of Mortgages Would Render Subsection (d)(3) Dead Letter.

California Corporations Code section 191 (c)(7) provides an exemption to tax registration for foreign corporations engaged in “[c]reating evidences of debt or mortgages, liens or security interests on real or personal property.” Id. The statute does not expressly define “creating evidences,” and so the court is called upon to apply the rules of statutory construction to interpret the code prior to applying it. This is a matter of first impression, as there is no California precedent on this issue. (However, both parties have submitted federal court opinions on both sides of the issue).

California courts do not favor constructions of statutes that render them advisory only, or a dead letter. Petropoulos v. Department of Real Estate (2006) 142 Cal.App.4th 554, 567; People v. Stringham (1988) 206 Cal.App.3d 184, 197. Because Corp Code section 191(d)(7) expressly reserves the activities of assigning mortgages, conducting foreclosures, and substituting trustees for foreign lending institutions, these activities must, by definition, go beyond what is intended by “creating evidences” of transactions, or else, the gateway consideration of being a foreign lending institution required at section 191(d) would be dead letter, because such activities would already apply to ALL foreign corporations, who are exempted at (c)(7) for “creating evidences.” If the legislature included these foreclosurerelated activities in a new subsection expressly reserved for a certain type of foreign entity, then it clearly did not intend for them to be included by the term “creating evidences” which is provided to all foreign corporations.

2. All of MERS’ Activities Go Beyond The Plain Meaning Of The Term “Creating Evidences.”
Because there is no express definition of “creating evidences” provided in the Corporations Code, this phrase should be given its common meaning. “Creation” is defined by Mirriam Webster’s Dictionary as “the act of making, inventing or producing.”
“Evidence” is defined by the California Code of Evidence as “testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” Evidence Code 140.
The evidences referred to in Corp. Code section 191(c)(7) are “of debt or mortgages, liens or security interest on real or personal property.”

Hence, when the words are taken together, the statute exempts: “making, inventing, or producing testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of debt or mortgages, liens or security interest on real or personal property.”

MERS’s California activities go far beyond these activities. In contrast to MERS, a foreign corporation who might qualify for exemption for “making, inventing, or producing testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of debt, mortgages, liens or security interest on real or personal property” is Socrates Legal Media, LLC, 227 West Monroe Suite 500 Chicago, IL 60606.

The business of Socrates Legal Media includes selling pre-packaged contract forms at Office Depot for people who conduct routine real estate transactions, such as taking liens on real property to secure debts. If a dispute arose between two parties to such an agreement within our state, and Socrates was brought in by the Plaintiff and alleged as being an unregistered foreign corporation who does not to have capacity to defend, Socrates could point out that it merely CREATES EVIDENCES of transactions, and seek exemption from the registration requirement to defend itself in the case. MERS, on the other hand, does not merely provide forms for agreements, or “create evidences” of them; MERS participates in California transactions.

Therefore, MERS’ activities go beyond what “creating evidences” could possibly mean. However, the trouble with MERS’s argument does not end with that.

3. None of MERS’ Activities Meet The Definition of “Creating Evidences.”

The real trouble with MERS’ argument is that it clearly did not even create these evidences to begin with, nor does it claim to. To wit, the evidences of debt, liens on property, or mortgages at issue in this case – the Note and the Deed of Trust – are “made, invented, and produced” respectively by the Lender and by federal government bodies known as “Fannie Mae” (short for the Federal National Mortgage Agency) and “Freddie Mac” (short for the Federal Home Loan Mortgage Corporation).

The court may take judicial notice of the fact that these uniform instruments, used more commonly than any other to evidence the fact of a real estate mortgage transaction in our state, may be downloaded at http://www.freddiemac.com/uniform/. The mortgages at issue in this and every other MERS related case are not MERS’ forms. MERS did not “create” these “evidences.”

Rather, MERS’ involvement in the transaction was wholly participatory. MERS was named beneficiary on the deeds of trust. MERS participated in the foreclosure activities, though it was never entitled to collect a single penny under the notes. Characteristically, MERS only participated in the transaction for the sole purpose of avoiding paying California taxes. See: MERS’ admission in MERS v. Nebraska, that its purpose for being a phantom beneficiary on these deeds of trust is to avoid state real property transfer taxes at Plaintiff’s RJN in Support of Supplemental Briefing Exh. A (For the Nebraska Supreme Court’s finding that ” Mortgage lenders hire MERS to act as their nominee for mortgages, which allows the lenders to trade the mortgage note and servicing rights on the market without recording subsequent trades with the various register of deeds throughout Nebraska.”). See also: the admission of Bill Hultman at Plaintiffs RJN in Support of Supplemental Briefing Exh. B at Paragraph 8 (for MERS’ admission that “MERS is not a party to or obligee under the terms of the Promissory Note, and MERS does not appear on the Promissory Note.”).

Nor was the execution of the documents at closing MERS’ doing; that was conducted at a title company or by mobile notary. MERS does not claim that any person from MERS was present at a single mortgage closing in this state. Nor does MERS claim that any agent or representative of MERS even so much as signed the Fannie/Freddie uniform instruments.

The record in this case clearly establishes that only the Plaintiffs signed the Deed of Trust. Therefore, MERS’ activities do not render it exempt from tax registration under Corp Code 191(c)(7) because its activities go beyond “creating evidences” and do not include “creating evidences” in the first instance.

B. MERS DOES NOT QUALIFY UNDER SECTION 191(d)(3) BECAUSE IT IS NOT
A FOREIGN LENDING INSTITUTION AND BECAUSE IT DOES NOT OWN THE
NOTE.

1. As a Gateway Consideration, The Court Must Find That MERS Is A Foreign Lending Institution (Or Wholly Owned By One) to Qualify for ANY of the Exemptions at Corp. Code Section 191(d).

Under Corporations Code Section 191(d)(3), MERS must both 1) be the right type of entity (the gateway consideration to the exemptions), and 2) own the note to qualify for exemption.

Corporations Code Section 191(d) provides exemption solely for any:
“…foreign lending institution, including, but not limited to: any foreign banking corporation, any foreign corporation all of the capital stock of which is owned by one or more foreign banking corporations, any foreign savings and loan association, any foreign insurance company or any foreign corporation or association authorized by its charter to invest in loans secured by real and personal property, whether organized under the laws of the United States or of any other state, district or territory of the United States, shall not be considered to be doing, transacting or engaging in business in this state solely by reason of engaging in any or all of the following activities either on its own behalf or as a trustee of a pension plan, employee profit sharing or retirement plan, testamentary or inter vivos trust, or in any other fiduciary capacity…”

Firstly, MERS does not argue that it is a foreign lending institution in this case. In its Demurrer, Reply, oral argument, or anywhere on this record, there is NO factual averment that MERS is a foreign lending institution or wholly owned by one, or is an investor in mortgage notes.

Secondly, MERS has not submitted any evidence which would support such a finding.

Thirdly, in MERS v. Nebraska, MERS judicially admitted to the Supreme Court of Nebraska that it has never lent a dollar in any state, and is also not the holder of the note on any of its Deeds of Trust. Plaintiff’s Supplemental RJN Exh. A. In that case, MERS appealed a finding of the trial court that MERS was a foreign banking institution and therefore had to register as one in Nebraska. While the legal issue in the instant case is distinguishable, the factual problem before the court is identical to that case: is MERS a bank?.
Whereas there, MERS did everything it could to prove it was NOT a foreign lending institution, here MERS attempts the opposite. Where in Nebraska, MERS sought to avoid registration as a financial institution by swearing to God that it does not ever own the note, here MERS seeks to avail itself of an exemption reserved for foreign lending institutions, asserting the bald-faced conclusion that it should not have to register as a foreign corporation and pay California state taxes under a statute which clearly requires both status as a financial institution, AND ownership of the note, which it also disclaims.

B. MERS DOES NOT OWN THE NOTES AS REQUIRED BY 191(d)(3).

At Corporations Code Section 191(d)(3) the legislature expressly states MERS’claimed exemption:

“The ownership of any loans and the enforcement of any loans by trustee’s sale, judicial process or deed in lieu of foreclosure or otherwise.” Id. [Emphasis Added].

Corp. Code section 191(d)(3) is written in the conjunctive: “own and enforce.” MERS’ averments to its ability to participate in trustee sales without registration by way of this statute is therefore patently unfounded.

There is no averment in this case that MERS owns the note. In fact, by judicial admission, there is the opposite: MERS submits in its own joint Request for Judicial Notice in Support of Demurrer, an Assignment of the Deed of Trust to Wells Fargo. Consistent with MERS’ practice of hiding the true noteholder from the borrower to facilitate foreclosure fraud, the transfer to Wells Fargo suggests that it was Wells Fargo who had been the holder of the note entitled to enforce the Deed of Trust all along, never MERS.

C. MERS ACTIVITIES GO BEYOND THE SCOPE OF BOTH STATUTES; EVEN
IF MERS WERE EXEMPT UNDER EITHER STATUTE, ITS ACTIVITIES
INCLUDING OPERATING A MEMBERSHIP DATABASE GO BEYOND THE
SCOPE OF ANY OF THE ACTIVITIES INCLUDED IN EITHER EXEMPTION.

1. MERS’ Foreclosure Agent Activities Are Not Exempt Under Either Statute at Issue.

In reality, MERS operates as more of an agent than as a beneficiary on any given Deed of Trust (using the dubious title “nominee”). In support, MERS claims that Civil Code section 2924 allows “agents” to begin the non-judicial foreclosure process in California, and therefore, its agency activities should enjoy exemption from taxation. This is a non-sequitur.

The statutory exemption provided at Corp. Code section 191(d)(3) does not extend to companies in the business of “acting as foreclosure agents,” nor is any such interpretation of the statute even possible. While the Civil Code does allow agents to perform certain foreclosure functions, such allowance has no impact on the operation of the Tax Code.

MERS’ exemption argument leaps from one unfounded conclusion to the next. Nowhere in either statute does it aver that agents of the true noteholders are subject to the same exemptions simply by reason of agents being allowed to act on behalf of the noteholder.

Finally, and perhaps most telling, if you “follow the money” the distinction is clear: MERS profits by posing as the beneficiary to the deed of trust and generating foreclosure paperwork; a foreign lending institution profits by lending, and, when that doesn’t work out, by selling its security to collect on an unpaid debt. The business activities, or “profit generating activities”, of MERS are quite distinct from those of its principals, and there is no indication in any of the statutes that the legislature intended for the two to be interchangeable.

2. MERS’ Database Maintenance and Subscription Activities Are Not Exempt.

In their FAC, the Plaintiffs allege a set of activities which is neither included nor discussed above or by MERS at all in any of its arguments in favor of exemption: MERS operates a subscription-based information database for profit within the state of California.
MERS sells memberships to the database, provides access to records, and charges its customers accordingly. Similar to Westlaw, LexisNexis, or any other database provider, this activity is no more “creation of” the information contained therein, than is Westlaw the Creator of judicial opinion in any jurisdiction in this state or country.

Thus, regardless of the applicability to either claimed exemption to MERS’ other activities, MERS’ subscription-based activities exceed what the legislature intended a foreign corporation to do in this state without paying taxes to support the courts, schools, infrastructure, and other benefits of which it avails itself.

Therefore, MERS does not qualify for exemption from Revenue and Tax Code 23305 by way of either Corporations Code section 191(c)(7) or section 191(d)(3).

D. PUBLIC POLICY WEIGHS IN FAVOR OF MAKING MERS PAY ITS TAXES.

There is an argument that because MERS has embroiled itself in so many California mortgages, that it would be detrimental to industry to enforce our laws against it. However, because of the fact that the potential detriment to MERS pales in comparison to the impact MERS has had on this state, and will continue to have if allowed to be above our law, it would not be sound judicial policy to disregard the laws of California solely because of the sheer volume in which the defendant has violated them. It should be the opposite.

To enforce compliance with California’s tax code against MERS would not be any detriment to the mortgage industry, because the mortgage industry has already profited far beyond what was legal or fair in the first place due to these unlawful activities, as has MERS. To now disregard that those monies were ill-gotten based on the idea that it was just so much money that we’ll hurt the industry, truly, is to incentivize wholesale violation of California laws, as long as the issue stays under the radar long enough for the wrongful
conduct to become “too big to punish.”

Indeed, the mortgage industry has already received $700 billion in TARP funds, which came from taxpayer dollars, MERS itself as saved hundreds of millions of tax dollars by refusing to register in this state, and MERS’ customers have saved hundreds of millions by abusing the recording system and the unsupervised nonjudicial foreclosure statute.

It should be noted that secondary market mortgage holders have a remedy to all this: judicial foreclosure. The California codes are not set up without some recourse for those who are RIGHTFULLY owed a debt and RIGHTFULLY entitled to collect on it. Indeed, judicial foreclosure is the due process right of every California citizen whose mortgagee is not entitled to foreclose under Civil Code section 2924. (While Civil Code 2924 was not found to be a violation of due process by the California Supreme Court, a judicial seal of approval on abuse of that statute by those without any right title or interest most certainly is.)

On the flip side of this coin is the already felt crushing impact of these activities on the state of California. The courts are closed the third Wednesday of every month, and clerk staff has been cut to the bones. Public schools and universities are cutting both staff and course options as well as increasing tuition. The roads and bridges are in disrepair. Record foreclosures have caused record joblessness and record inflation. And meanwhile, MERS’ participation in the subprime securitized mortgage scheme was essential to the volume of bad loans being made, to the alacrity with which Wall Street was jamming these pools down our throats, and to the vigor with which mortgage brokers working for yield spread premiums were cold calling and loan flipping.

Clearly MERS was and is conducting business in this state, without paying a dollar on its own tax-free profits, and while aiding its customers in the avoidance of essential property transfer taxes. Its activities not only cost the state in the sheer loss of income, but also in the expense that will go into correcting thousands of real property records which have been deranged by MERS’ wholesale disregard for California law.

CLASS ACTION FILED AGAINST STERN, MERS

Posted on July 28, 2010 by Neil Garfield

Entered on the Court docket of the Southern District of Florida, a class action for damages has been filed against MERS, the Stern Law Firm and David Stern individually.The lawsuit alleges racketeering under the RICO (Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. Sec. 1962 and 1964) statute, alleging that MERS was created “in order to undermine and eventually eviscerate long-standing principles of real property law…”. It also cites the “lost note” syndrome we are all so familiar with by now.

The lawsuit filed by Kenneth Eric Trent, Esq. in Fort Lauderdale, Florida reads like a mystery novel. He probably has an incorrect chronology of a few details of the actual way securitization played out, but on the whole, the complaint is worth a read and he should get all the help you can give him. He includes actual testimony in the complaint taken from other cases in addition to a very well-written narrative. Here is one quote I liked —

“Unbeknownst to the borrowers and the public, the billions of dollars spent to fund these loans were expended to “prime the pump.” The big institutions and the conspirators were making an investment, but the expected return was NOT the interest they pretended to anticipate receiving as borrowers paid the mortgages. The lenders knew that the new loans were “bad paper;” this was of little concern to them because they intended to realize profits so great as to render such interest, even if it had been received, negligible by comparison. Part of the reason this fraudulent scheme has gone largely unnoticed for such an extended period of time is that its sophistication is beyond the imagination of average persons. Similarly beyond the imagination of most persons is and was the scope of the DISHONESTY of the lenders and those acting in furtherance of the scheme, including the present Defendants.”

Gretchen “Gets It” but misses the mark

Posted on July 25, 2010 by Neil Garfield

It’s no secret that I admire Gretchen Morgenson of the New York Times. Her articles have penetrated deeper and deeper into the realities and logistics of the Great Financial Meltdown. But she continues to drag myth alongside of reality. True, it is difficult to get your mind around the idea that Wall Street managers WANTED bad mortgages, but that simple piece of truth is unavoidable. In the article below she draws ever nearer to this truth, saying that the real question is “what did they know and when did they know it?”
She even spots the extremely important fact that the worse the loan the more money was made by Wall Street. My objection is why not ask the next obvious question, to wit: “If Wall Street’s profits went up as the quality of mortgages went down, isn’t the obvious incentive to create increasingly bad paper?” And in what world has Wall Street ever done anything to diminish profits on moral grounds?
But her spotting is defective. She sees a 5 point spread (Yield Spread Premium) between what was paid for the loans and the price charged to investors. She correctly points out that the most Wall Street usually gets on trades like this is around 2 points. But think about it. Could such a small spread actually account for the ensuing mayhem that resulted?
What she fails to point out is the actual logistics. Investors, and for that matter, even the rating agencies, were never given the actual loans to look at and kick the tires. They were given descriptions of the loans which were incorporated into a narrative that portrayed the loans in a much better light than anything a loan underwriter would agree with. The final description of the loans was so loaded with misrepresentations that even a small amount of due diligence would have revealed major discrepancies that would have stopped this money machine from operating, for good.
Gretchen’s error is reflected in most articles by journalists and government officials. They all miss a major part of the transaction. Do the math. How could a five point spread account for the actual 8-10 point spread that was used to massage the description of the pool? There is a whole other SIV transaction that everyone is ignoring. The size of it will astonish you.

If for the purpose of one extreme example we isolate a single loan transaction, you can see how it works.
John Smith, an unemployed, homeless migrant worker with a gross income of $500 per month is pulled off the street by a “loan adviser.” The salesman gets John to sign a bunch of papers and tells him to go move into a $500,000 house. The interest rate on the loan is 18%, which is $90,000 per year. John doesn’t have to pay anything for the first 3 months and then only $100 per month for the first year, when he must pay a higher amount, still not as much as the monthly interest of $7,500 per month, let alone amortization, taxes, and insurance.
Now go to the investor who has been promised, for this example 9% annual return. The investor gives the investment banker $1,000,000 dollars believing that the investment banker is taking a 2% fee ($20,000). In other words, the investor is expecting $980,000 of his money to be invested. But that is NOT what happened — not ever, in ANY example. The investor, expecting a 9% annual return on his $1 million is therefore expecting $90,000 per year in income.
So in our over-simplified example the investment banker goes to the mortgage aggregator, and says give me the crappiest mortgage you have that says the interest is $90,000 per year. The aggregator (Countrywide, for example) sells the John Smith Mortgage to a structured investment vehicle off-shore for $500,000. The SIV sells the John Smith Mortgage to another entity (Seller) created by the investment bank for $980,000. The Seller sells the John Smith Mortgage to an “investment pool” for $1 million.
Watch Carefully! What just happened is that the John Smith mortgage was created that would never be paid. The interest rate on that mortgage was 18% and the principal was $500,000. So the annual interest to be paid by borrower was $90,000. The investor gave $1 million to the investment banker and thus “bought” the $90,000 in “income” from John Smith.
The surface transaction that Gretchen and others are looking at is that last transaction where the investment banker appears to pick up a few points as a fee. The underlying transaction, the substance of the real deal, is that the investment banker took $1 million from the investor and funded a $500,000 mortgage, thus creating a yield spread premium total of $500,000. In other words, the investment banker, in our oversimplified example, made a profit EQUAL TO THE MORTGAGE PRINCIPAL.
Not all the borrowers were John Smith. They ranged from him to people with the ability to pay anything. But the Mary Jones Mortgage where she had a credit score of 815 and assets of over $10 million was a key ingredient to this fraud. May Jones Mortgage was put in the top level of the “pool.” She was the gold plating covering dog poop underneath.
The identity of Mary Jones and her credit score HAD to be there, HAD to be used without her permission in order to sell the John Smith Mortgage. I think that is called identity theft. I think it was interstate commerce and I think it was a pattern of conduct. I think that is racketeering, breach of the the Truth in Lending Act and Securities Fraud, based upon appraisal (ratings) fraud at both ends (borrower and investor) of the transaction.
And let’s not forget that all these sales and transfers were undocumented. The only thing that moved was the money. And of course there are all those third party insurance and bailout payments that were never credited to the investor or the borrower. The investment banker kept those too.
——————————————————————————————–
July 24, 2010
Seeing vs. Doing
By GRETCHEN MORGENSON

“WHAT did they know, and when did they know it?” Those are questions investigators invariably ask when trying to determine who’s responsible for an offense or a misdeed.

But for the Wall Street banks whose financing of the subprime mortgage machine placed them at the center of the credit crisis, it’s becoming clear that a third, equally important question must be asked: “What did they do once they knew what they knew?”

As investigators delve deeper into the mortgage mess, they are finding in too many cases that Wall Street firms did nothing when they learned about problem loans or improprieties in lending. Rather than stopping practices of profligate originators like New Century, Fremont and Ameriquest, Wall Street financiers, which held the purse strings for these companies, apparently decided to simply look the other way.

Recent cases have provided glimpses of this conduct. Last week, the Financial Industry Regulatory Authority accused Deutsche Bank Securities, a unit of the huge German bank, of misleading investors about how many delinquent loans went into six mortgage securities worth $2.2 billion that the firm underwrote. Deutsche Bank underreported the delinquency rates among loans when it created the securities in 2006, Finra contends, and then sold them to investors.

Deutsche Bank also understated historical delinquency rates in 16 subprime securities it packaged in 2007, Finra said. Even after it discovered the errors, the authority added, Deutsche Bank continued to report the misstated figures on its Web site, where investors checked the performance of past mortgage pools.

Deutsche Bank settled without admitting or denying the allegations; it paid $7.5 million. The firm said Friday that it had cooperated and was pleased to have the matter behind it.

James S. Shorris, acting chief of enforcement at Finra, said that this was just the first of such cases and that he oversees a team of more than a dozen people investigating firms involved in mortgage securities.

While the Finra case showed Deutsche Bank failing to report problem loans in its securities, investigators in other matters are learning that some firms used information about lending misconduct to increase their profits from the securitization game — without telling investors, of course.

Here is what investigators have learned, according to two people briefed on the inquiries who spoke anonymously because they were not authorized to discuss them publicly. The large banks that provided money to mortgage originators during the mania hired outside analytics firms to conduct due diligence on the loans that Wall Street bought, bundled into securities and sold to investors.

These analysts looked for loans that failed to meet underwriting standards. Among the flagged loans were those in which appraisals seemed fishy or the mortgages went to borrowers with credit scores far below acceptable levels. Loans on vacation properties erroneously identified as primary residences were also highlighted.

The analysts would take their findings back to the Wall Street firms packaging the securities; the reports were not made available to investors.

In 2006-07, amid the mortgage craze, more loans didn’t meet the criteria. But instead of requiring lenders to replace these funky mortgages with proper loans, Wall Street firms kept funneling the junk into securities and selling them to investors, investigators have found.

Cases brought against Wall Street firms by Martha Coakley, attorney general of Massachusetts, have brought some of these practices to light. “Our focus has been on the borrower,” she said in an interview last week, “but as we’ve peeled back the onion we’ve gotten the picture of the role Wall Street played through the financing of these loans.”

But some on Wall Street went further than simply peddling loans they knew were bad, according to the people briefed on some investigators’ findings. They say the firms used these so-called scratch-and-dent loans to increase their profits in the securitization process.

When due-diligence reports turned up large numbers of defective loans — known as exceptions — the banks used this information to negotiate a lower price on the mortgages they bought from the original lenders.

So, instead of paying 99 cents on the dollar for the problem loans, the firm would force the lender to accept 97 cents or perhaps less. But the firm would still sell the mortgage pool to investors at 102 cents or higher, as was typical on high-quality loan pools.

Wall Street enjoyed the profits these practices generated. And because lenders were financed by the Wall Street firms bundling the mortgages into securities, they were hesitant to reject too many dubious loans because doing so would slow the securitization machine.

FOR their part, Wall Street loan packagers were loath to imperil their relationship with lenders like New Century; as long as Wall Street’s lucrative mortgage factories were humming, it needed loans to stoke them. Forcing New Century to eat its bad loans might prompt it to take its business elsewhere.

The bottom line: the more problematic the loans, the better the bargaining power and the higher the profits for Wall Street.

To be sure, the securities’ offering statements noted, in legalese, that the deals might contain “underwriting exceptions” and those exceptions could be “material.” But as investigators get closer to understanding how Wall Street used these exceptions to jack up its earnings, that disclosure defense may ring hollow.

Filed under:

Emplode-o-meter mortgage company failures

384. Liberty Mortgage Corporation – Wholesale
383. Universal Mortgage Corp.
382. American Mortgage Specialists, Inc.
381. Assurity Financial Services, LLC
380. Premium Capital Funding, LLC dba TopDot Mortgage
379. First Regional Bank, Century City
378. Security Atlantic Mortgage Co.
377. Apex Lending, Inc.
376. Charter Bank, Santa Fe
375. Equitable Trust Mortgage Corp.
374. AmTrust Bank
373. Dynamic Capital Mortgage
372. Lend America / Lending Key
371. New South Federal Savings Bank
370. AME Financial Corp.
369. Envision Lending Group Inc.
368. Warren Bank
367. Stockton Turner & Company
366. The Lending Company Inc. – Wholesale
365. Capmark Financial Group Inc.
364. Northeast Mortgage Corp.
363. Security Mortgage Corporation
362. Windsor Capital Mortgage Corp.
361. First Rate Capital Corp.
360. StoneWater Mortgage Corp.
359. First National Bank of the South – Wholesale
358. Senderra Funding – Wholesale
357. Capstone Realty Advisors
356. Granite Mortgage, Inc.
355. Worldwide Financial Resources Inc.
354. Guaranty Bank – Warehouse
353. Colonial Bank
352. Corus Bank
351. America One Finance
350. Taylor, Bean & Whitaker Mortgage Corp. – Wholesale
349. 1st Reverse Financial Services LLC
348. HCI Mortgage
347. BankersWest Funding Corp.
346. American Partners Bank
345. Senior Lending Network
344. BankUnited, F.S.B.
343. Precision Financial, Inc.
342. Accredited Home Lenders, Lone Star Funds
341. Wells Fargo – Small-Cap Commercial
340. Guaranty Bank – GB Mortgage
339. American Sterling Bank
338. Chase Home Mortgage – Construction Lending
337. First Security Loan Corp
336. South Pacific Financial Corp. – Wholesale
335. Home Loan Consultants, Inc.
334. Central States Mortgage
333. HSBC – HFC & Beneficial
332. JPMorgan Chase – Warehouse
331. Ameritime Mortgage Co. LLC
330. Perfect Mortgage – PerfectFHA
329. EquiFirst
328. Residential Loan Centers of America
327. CU National Mortgage
326. Colonial National Mortgage – Wholesale
325. U.S. Mortgage Corp. – Retail
324. First Interstate Financial – Wholesale
323. Realty Mortgage Corp.
322. Vertice
321. USA Home Loans – Wholesale
320. SunTrust Mortgage – FHA Wholesale
319. First Federal – Wholesale
318. 21st Mortgage – Wholesale
317. J.B. Nutter & Co. – Wholesale
316. Homebridge Mortgage Bankers – Refinance.com
315. 1st Republic Mortgage Bankers
314. Superior Mortgage Corp – Wholesale
313. Wall Street Financial Corp – Wholesale
312. Fairfield Financial Mortgage Group
311. Chase Prime – Wholesale
310. Sunshine & Madison Mortgage Corp
309. Liberty One Lending
308. Frontier Investment Co.
307. Solstice Capital Group – HSBC
306. MortgageIT
305. HCL Finance Inc. – Wholesale
304. LIME Financial Svcs. – Wholesale
303. Mortgage Network Inc. – Wholesale
302. Fortes Financial – Wholesale
301. HSBC Mortgage Corp. – Wholesale
300. CBRE Realty Finance
299. Franklin Bank, SSB
298. Mortgage Lion, Inc. – Wholesale
297. HMS Capital, Inc.
296. CTX Mortgage Co. – Retail
295. Equity One Commercial
294. Coldstream Financial Svcs.
293. Banco Popular North America – Wholesale
292. Ace Mortgage Funding, LLC
291. E-Loan
290. Gateway Bank, F.S.B. – Wholesale
289. First Call Mortgage Co.
288. Downey Savings and Loan – Wholesale
287. Prospect’s Metrocities Mortgage – Wholesale
286. ComCor Mortgage – Wholesale
285. Chevy Chase Bank – Wholesale
284. Washington Mutual – Retail and Warehouse
283. Hometown Commercial Capital
282. Mid Atlantic Capital LLC
281. Kemper Mortgage, Inc.
280. Liberty Mortgage Funding Co.
279. Freddie Mac
278. Fannie Mae
277. Pacific Community Mortgage, Inc. – Gold Reverse, Inc.
276. Homecomings Financial, LLC
275. Thornburg Mortgage
274. CSB Mortgage
273. Carteret Mortgage Corporation
272. Western Residential Mortgage
271. Liberty Home Lending
270. Equipoint Financial Network, Inc.
269. Ideal Mortgage Bankers, Ltd. – Wholesale
268. Silver State Bank – Wholesale
267. Irwin Union Bank & Trust Co. – Wholesale
266. SunTrust Bank Equity Wholesale
265. Wachovia Mortgage, FSB – Wholesale
264. Lehman Brothers SBF
263. IndyMac Bancorp
262. Mortgages Ltd.
261. Wilmington Finance – Wholesale
260. Accredited Home Lenders, Home Funds Direct
259. Assured Lending Corp. – Wholesale
258. Homewide Lending Corporation
257. Vanguard Mortgage & Title, Inc.
256. Chase Home Equity – Wholesale
255. Chase Subprime – Wholesale
254. Evergreen Investment & Carnation Banc
253. Casa Blanca Mortgage/Shearson – Wholesale
252. Guaranty Bank – Correspondent
251. Citi Residential Lending
250. Montgomery Mortgage Capital Company
249. E*Trade Wholesale Lending
248. Shearson Financial Network, Inc.
247. American Bank Mortgage Group – Wholesale
246. AmeriBanc Corp.
245. Washington Mutual – Wholesale
244. Century Bank, F.S.B. – Wholesale
243. Diversified Mortgage, Inc.
242. National Wholesale Funding
241. Centennial Mortgage and Funding, Inc./Award Mortgage
240. Fidelity Home Mortgage Corp.
239. LMI Funding, Inc.
238. Millennium Mortgage – Wholesale
237. Origen Financial, Inc. (Correspondent)
236. CitiMortgage – Home Equity Wholesale
235. Bear Stearns Residential Mortgage
234. East West Mortgage Co. of VA
233. New Vision Residential Lending
232. Washington Savings Bank, F.S.B. – Wholesale
231. Macquarie Mortgages USA Inc.
230. Global Mortgage, Inc.
229. Unique Mortgage Solutions (UMS, LLC)
228. First Franklin – Merrill Lynch
227. First National Mortgage Sources
226. Resource Mortgage (Wholesale)
225. KH Financial
224. Lydian Mortgage
223. OMG Wholesale Lending
222. Saxon Mortgage (Wholesale)
221. Beazer Mortgage Corp.
220. Allpointe Mortgage (Broker Program)
219. Popular Warehouse Lending
218. Allied Lending Corp. (Wholesale)
217. BF Saul Wholesale Lending
216. Community Resource Mortgage
215. Lehman/Aurora Loan Services
214. Residential Mortgage Capital
213. Maverick Residential Mortgage
212. Countrywide Financial Corp.
211. First NLC Financial Services
210. First American Bank (Wholesale)
209. Soma Financial
208. National City Corp. (Wholesale)
207. Heartland Wholesale Funding
206. Homefront Mortgage Inc.
205. PNC Bank H.E.
204. Family First Mortgage Corp.
203. First Fidelity Financial
202. BSM Financial
201. 1st Choice Mortgage
200. Wescom Credit Union
199. Coast Financial Holdings/Coast Bank
198. WaMu (Subprime)
197. First Madison Mortgage
196. Southern Star Mortgage
195. TransLand Financial
194. Secured Bankers Mortgage Company (SBMC)
193. ComUnity Lending
192. Delta Financial Corp
191. BayRock Mortgage
190. Empire Bancorp
189. Option One – H&R Block
188. Citigroup – FCS Warehouse
187. Charter One (Wholesale)
186. Wells Fargo – Home Equity
185. Paul Financial, LLC
184. Webster Bank (Wholesale)
183. Fieldstone Mortgage Company
182. Tribeca Lending Corp. (Wholesale)
181. WAMU Comm. Correspondent
180. Marlin Mortgage Company
179. Countrywide Specialty Lending
178. UBS Home Finance
177. MortgageIT-DB (Retail)
176. Edgewater Lending Group
175. ResMAE Mortgage Corp.
174. Citimortgage Correspondent (2nds)
173. AMC Lending
172. Liberty American Mortgage
171. Exchange Financial (Wholesale)
170. FirstBank Mortgage
169. Bank of America (Wholesale)
168. Diablo Funding Group Inc.
167. Honor State Bank
166. Spectrum Financial Group
165. Priority Funding Mortgage Bankers
164. BrooksAmerica Mortgage Corp.
163. Valley Vista Mortgage
162. New State Mortgage Company
161. Summit Mortgage Company
160. WMC
159. Paragon Home Lending
158. First Mariner Wholesale
157. The Lending Connection
156. Foxtons, Inc.
155. SCME Mortage Bankers
154. Aapex Mortgage (Apex Financial Group)
153. Wells Fargo (various Correspondent and Non-prime divisions)
152. Nationstar Mortgage
151. Decision One (HSBC)
150. Impac Lending Group
149. Long Beach (WaMu Warehouse/Correspondent)
148. Expanded Mortgage Credit Wholesale
147. The Mortgage Store Financial
146. C & G Financial
145. CFIC Home Mortgage
144. All Fund Mortgage
143. LownHome Financial
142. Sea Breeze Financial Services
141. Castle Point Mortgage
140. Premium Funding Corp
139. Group One Lending
138. Allstate Home Loans / Allstate Funding
137. Home Loan Specialists (HLS)
136. Transnational Finance Wholesale
135. CIT Home Lending
134. Capital Six Funding
133. Mortgage Investors Group (MIG) – Wholesale
132. Amstar Mortgage Corp
131. Quality Home Loans
130. BNC Mortgage (Lehman)
129. First National Bank of Arizona
128. Chevy Chase Bank Correspondent
127. GreenPoint Mortgage – Capital One Wholesale
126. NovaStar, Homeview Lending
125. Quick Loan Funding
124. Calusa Investments
123. Mercantile Mortgage
122. First Magnus
121. First Indiana Wholesale
120. GEM Loans / Pacific American Mortgage (PAMCO)
119. Kirkwood Financial Corporation
118. Lexington Lending
117. Express Capital Lending
116. Deutsche Bank Correspondent Lending Group (CLG)
115. MLSG
114. Trump Mortgage
113. HomeBanc Mortgage Corporation
112. Mylor Financial
111. Aegis
110. Alternative Financing Corp (AFC) Wholesale
109. Winstar Mortgage
108. American Home Mortgage / American Brokers Conduit
107. Optima Funding
106. Equity Funding Group
105. Sunset Mortgage
104. Nations Home Lending
103. Entrust Mortgage
102. Alera Financial (Wholesale)
101. Flick Mortgage/Mortgage Simple
100. Dollar Mortgage Corporation
99. Alliance Bancorp
98. Choice Capital Funding
97. Premier Mortgage Funding
96. Stone Creek Funding
95. FlexPoint Funding (Wholesale & Retail)
94. Starpointe Mortgage
93. Unlimited Loan Resources (ULR)
92. Freestand Financial
91. Steward Financial
90. Bridge Capital Corporation
89. Altivus Financial
88. ACT Mortgage
87. Alliance Mortgage Banking Corp (AMBC)
86. Concord Mortgage Wholesale
85. Heartwell Mortgage
84. Oak Street Mortgage
83. The Mortgage Warehouse
82. First Street Financial
81. Right-Away Mortgage
80. Heritage Plaza Mortgage
79. Horizon Bank Wholesale Lending Group
78. Lancaster Mortgage Bank (LMB)
77. Bryco (Wholesale)
76. No Red Tape Mortgage
75. The Lending Group (TLG)
74. Pro 30 Funding
73. NetBank Funding, Market Street Mortgage
72. Columbia Home Loans, LLC
71. Mortgage Tree Lending
70. Homeland Capital Group
69. Nation One Mortgage
68. Dana Capital Group
67. Millenium Funding Group
66. MILA
65. Home Equity of America
64. Opteum (Wholesale, Conduit)
63. Innovative Mortgage Capital
62. Home Capital, Inc.
61. Home 123 Mortgage
60. Homefield Financial
59. First Horizon Subprime, Equity Lending
58. Platinum Capital Group (Wholesale)
57. First Source Funding Group (FSFG)
56. Alterna Mortgage
55. Solutions Funding
54. People’s Mortgage
53. LowerMyPayment.com
52. Zone Funding
51. First Consolidated (Subprime Wholesale)
50. SouthStar Funding
49. Warehouse USA
48. H&R Block Mortgage
47. Madison Equity Loans
46. HSBC Mortgage Services (correspondent div.)
45. Sunset Direct Lending
44. Kellner Mortgage Investments
43. LoanCity
42. CoreStar Financial Group
41. Ameriquest, ACC Wholesale
40. Investaid Corp.
39. People’s Choice Financial Corp.
38. Master Financial
37. Maribella Mortgage
36. FMF Capital LLC
35. New Century Financial Corp.
34. Wachovia Mortgage (Correspondent div.)
33. Ameritrust Mortgage Company (Subprime Wholesale)
32. Trojan Lending (Wholesale)
31. Fremont General Corporation
30. DomesticBank (Wholesale Lending Division)
29. Ivanhoe Mortgage/Central Pacific Mortgage
28. Eagle First Mortgage
27. Coastal Capital
26. Silver State Mortgage
25. ECC Capital/Encore Credit
24. Lender’s Direct Capital Corporation (wholesale division)
23. Concorde Acceptance
22. DeepGreen Financial
21. American Freedom Mortgage, Inc.
20. Millenium Bankshares (Mortgage Subsidiaries)
19. Summit Mortgage
18. Mandalay Mortgage
17. Rose Mortgage
16. EquiBanc
15. FundingAmerica
14. Popular Financial Holdings
13. Clear Choice Financial/Bay Capital
12. Origen Wholesale Lending
11. SecuredFunding
10. Preferred Advantage
9. MLN
8. Sovereign Bancorp (Wholesale Ops)
7. Harbourton Mortgage Investment Corporation
6. OwnIt Mortgage
5. Sebring Capital Partners
4. Axis Mortgage & Investments
3. Meritage Mortgage
2. Acoustic Home Loans
1. Merit Financial

Securitized Mortgage: A Basic Roadmap

The Parties and Their Roles

The first issue in reviewing a structured residential mortgage transaction is to differentiate between a private-label deal and an “Agency” (or “GSE”) deal. An Agency (or GSE) deal is one involving Fannie Mae, Freddie Mac, or Ginnie Mae, the three Government Sponsored Enterprises (also known as the GSEs). This paper will review the parties, documents, and laws involved in a typical private-label securitization. We also address frequently-occurring practical considerations for counsel dealing with securitized mortgage loans that are applicable across-the-board to mortgages into both private-label and Agency securitizations.

The parties, in the order of their appearance are:

Originator. The “originator” is the lender that provided the funds to the borrower at the loan closing or close of escrow. Usually the originator is the lender named as “Lender” in the mortgage Note. Many originators securitize loans; many do not. The decision not to securitize loans may be due to lack of access to Wall Street capital markets, or this may simply reflect a business decision not to run the risks associated with future performance that necessarily go with sponsoring a securitization, or the originator obtains better return through another loan disposition strategy such as whole loan sales for cash.

Warehouse Lender. The Originator probably borrowed the funds on a line of credit from a short-term revolving warehouse credit facility (commonly referred to as a “warehouse lender”); nevertheless the money used to close the loan were technically and legally the Originator’s funds. Warehouse lenders are either “wet” funders or “dry” funders. A wet funder will advance the funds to close the loan upon the receipt of an electronic request from the originator. A dry funder, on the other hand, will not advance funds until it actually receives the original loan documents duly executed by the borrower.

Responsible Party. Sometimes you may see another intermediate entity called a “Responsible Party,” often a sister company to the lender. Loans appear to be transferred to this entity, typically named XXX Asset Corporation.

Sponsor. The Sponsor is the lender that securitizes the pool of mortgage loans. This means that it was the final aggregator of the loan pool and then sold the loans directly to the Depositor, which it turn sold them to the securitization Trust. In order to obtain the desired ratings from the ratings agencies such as Moody’s, Fitch and S&P, the Sponsor normally is required to retain some exposure to the future value and performance of the loans in the form of purchase of the most deeply subordinated classes of the securities issued by the Trust, i.e. the classes last in line for distributions and first in line to absorb losses (commonly referred to as the “first loss pieces” of the deal).

Depositor. The Depositor exists for the sole purpose of enabling the transaction to have the key elements that make it a securitization in the first place: a “true sale” of the mortgage loans to a “bankruptcy-remote” and “FDIC-remote” purchaser. The Depositor purchases the loans from the Sponsor, sells the loans to the Trustee of the securitization Trust, and uses the proceeds received from the Trust to pay the Sponsor for the Depositor’s own purchase of the loans. It all happens simultaneously, or as nearly so as theoretically possible. The length of time that the Depositor owns the loans has been described as “one nanosecond.”

The Depositor has no other functions, so it needs no more than a handful of employees and officers. Nevertheless, it is essential for the “true sale” and “bankruptcy-remote”/“FDIC-remote” analysis that the Depositor maintains its own corporate existence separate from the Sponsor and the Trust and observes the formalities of this corporate separateness at all times. The “Elephant in the Room” in all structured financial transactions is the mandatory requirement to create at least two “true sales” of the notes and mortgages between the Originator and the Trustee for the Trust so as to make the assets of the Trust both “bankruptcy” and “FDIC” remote from the originator. And, these “true sales” will be documented by representations and attestations signed by the parties; by attorney opinion letters; by asset purchase and sale agreements; by proof of adequate and reasonably equivalent consideration for each purchase; by “true sale” reports from the three major “ratings agencies” (Standard & Poors, Moody’s, and Fitch) and by transfer and delivery receipts for mortgage notes endorsed in blank.

Trustee. The Trustee is the owner of the loans on behalf of the certificate holders at the end of the securitization transaction. Like any trust, the Trustee’s powers, rights, and duties are defined by the terms of the transactional documents that create the trust, and are subject to the terms of the trust laws of some particular state, as specified by the “Governing Law” provisions of the transaction document that created the trust. The vast majority of the residential mortgage backed securitized trusts are subject to the applicable trust laws of Delaware or New York. The “Pooling and Servicing Agreement” (or, in “Owner Trust” transactions as described below, the “Trust Indenture”) is the legal document that creates these common law trusts and the rights and legal authority granted to the Trustee is no greater than the rights and duties specified in this Agreement. The Trustee is paid based on the terms of each structure. For example, the Trustee may be paid out of interest collections at a specified rate based on the outstanding balance of mortgage loans in the securitized pool; the Master Servicer may pay the Trustee out of funds designated for the Master Servicer; the Trustee may receive some on the interest earned on collections invested each month before the investor remittance date; or the Securities Administrator may pay the Trustee out of their fee with no charges assessed against the Trust earnings. Fee amounts ranger for as low as .0025% to as high as .009%.

Indenture Trustee and Owner Trustee. Most private-label securitizations are structured to meet the Internal Revenue Code requirements for tax treatment as a “Real Estate Mortgage Investment Conduit (“REMIC”). However some securitizations (both private-label and GSE) have a different, non-REMIC structure usually called an “Owner Trust.” In an Owner Trust structure the Trustee roles are divided between an Owner Trustee and an Indenture Trustee. As the names suggest, the Owner Trustee owns the loans; the Indenture Trustee has the responsibility of making sure that all of the funds received by the Trust are properly disbursed to the investors (bond holders) and all other parties who have a financial interest in the securitized structure. These are usually Delaware statutory trusts, in which case the Owner Trustee must be domiciled in Delaware.

Primary Servicer. The Primary Servicer services the loans on behalf of the Trust. Its rights and obligations are defined by a loan servicing contract, usually located in the Pooling and Servicing Agreement in a private-label (non-GSE) deal. The trust may have more than one servicer servicing portions of the total pool, or there may be “Secondary Servicers,” “Default Servicers,” and/or “Sub-Servicers” that service loans in particular categories (e.g., loans in default). Any or all of the Primary, Secondary, or Sub-Servicers may be a division or affiliate of the Sponsor; however under the servicing contract the Servicer is solely responsible to the Trust and the Master Servicer (see next paragraph). The Servicers are the legal entities that do all the day-to-day “heavy lifting” for the Trustee such as sending monthly bills to borrowers, collecting payments, keeping records of payments, liquidating assets for the Trustee, and remitting net payments to the Trustee.

The Servicers are normally paid based on the type of loans in the Trust. For example, a typical annual servicing fee structure may be: .25% annually for a prime mortgage; .375% for an Alt-A or Option ARM; and .5% for a subprime loan. In this example, a subprime loan with an average balance over a given year of $120,000 would generate a servicing fee of $600.00 for that year. The Servicers are normally permitted to retain all “ancillary fees” such as late charges, check by phone fees, and the interest earned from investing all funds on hand in overnight US Treasury certificates (sometimes called “interest earned on the float”).

Master Servicer. The Master Servicer is the Trustee’s representative for assuring that the Servicer(s) abide by the terms of the servicing contracts. For trusts with more than one servicer, the Master Servicer has an important administrative role in consolidating the monthly reports and remittances of funds from the individual servicers into a single data package for the Trustee. If a Servicer fails to perform or goes out of business or suffers a major downgrade in its servicer rating, then the Master Servicer must step in, find a replacement and assure that no interruption of essential servicing functions occurs. Like all servicers, the Master Servicer may be a division or affiliate of the Sponsor but is solely responsible to the Trustee. The Master Servicer receives a fee, small compared to the Primary Servicer’s fee, based on the average balance of all loans in the Trust.

Custodian. The Master Document Custodian takes and maintains physical possession of the original hard-copy Mortgage Notes, Mortgages, Deeds of Trust and certain other “key loan documents” that the parties deem essential for the enforcement of the mortgage loan in the event of default.

• This is done for safekeeping and also to accomplish the transfer and due negotiation of possession of the Notes that is essential under the Uniform Commercial Code for a valid transfer to the Trustee to occur.
• Like the Master Servicer, the Master Document Custodian is responsible by contract solely to the Trustee (e.g., the Master Document Custodial Agreement). However unlike the Master Servicer, the Master Document Custodian is an institution wholly independent from the Servicer and the Sponsor.
• There are exceptions to this rule in the world of Fannie Mae/Freddie Mac (“GSE”) securitizations. The GSE’s may allow selected large originators with great secure storage capabilities (in other words, large banks) to act as their own Master Document Custodians. But even in those cases, contracts make clear that the GSE Trustee, not the originator, is the owner of the Note and the mortgage loan.
• The Master Document Custodian must review all original documents submitted into its custody for strict compliance with the specifications set forth in the Custodial Agreement, and deliver exception reports to the Trustee and/or Master Servicer as to any required documents that are missing or fail to comply with those specifications.
• In so doing the Custodian must in effect confirm that for each loan in the Trust there is a “complete and unbroken chain of transfers and assignments of the Notes and Mortgages.”
• This does not necessarily require the Custodian to find assignments or endorsements naming the Depositor or the Trustee. The wording in the Master Document Custodial Agreement must be read closely. Defined terms such as “Last Endorsee” may technically allow the Custodian to approve files in which the last endorsement is from the Sponsor in blank, and no assignment to either the Depositor or the Trustee has been recorded in the local land records.
• In many private-label securitizations a single institution fulfills all of the functions related to document custody for the entire pool of loans. In these cases, the institution might be referred to simply as the “Custodian” and the governing document as the “Custodial Agreement.”

Typical transaction steps and documents (in private-label, non-GSE securitizations)

1. The Originator sells loans (one-by-one or in bundles) to the Securitizer (a/k/a the Sponsor) pursuant to a Mortgage Loan Purchase and Sale Agreement (MLPSA) or similarly-named document. The purpose of the MLPSA is to sell all right, title, claims, legal, equitable and any and all other interest in the loans to the Securitizer-Sponsor. For Notes endorsed in “blank” which are bearer instruments under the UCC, the MLPSA normally requires acceptance and delivery receipts for all such Notes in order to fully document the “true sale.” Frequently a form is prescribed for the acceptance and delivery receipt and attached as an exhibit to the MLPSA.

The MLPSA will contain representations, attestations and warranties as to the enforceability and marketability of each loan, and specify the purchaser’s remedies for a breach of any “rep” or “warrant.” The primary remedy is the purchaser’s right to require the seller to repurchase any loan materially and adversely affected by a breach. Among the defects and events covered by “reps” and “warrants” are “Early Payment Defaults,” commonly referred to as “EPD’s.” An EDP occurs if a loan becomes seriously (usually, 60 or more days) delinquent within a specified period of time after it has been sold to the Trust. The EDP covenants are always limited in time and normally only cover EDPs that occur within 12 to 18 months of the original sale. If an EDP occurs, then the Trust can force the originator to repurchase the EPD note and replace it with a note of similar static qualities (amount, term, type, etc.)

2. The Securitizer-Sponsor sells the loans to the Depositor. This takes place in another MLPSA very similar to the first one and the same documents are created and exchange with the same or similar terms. These are typically included as exhibits to the PSA.

3. Depositor, Trustee, Master Servicer and Servicer enter into a Pooling and Servicing Agreement (“PSA”) in which:

— the Depositor sells all right, title, legal, equitable and any other interest in the mortgage loans to the Trustee, with requirements for acceptance and delivery receipts, often including the prescribed form as an exhibit, in similar fashion to the MLPSA’s;

— the PSA creates the trust, appoints the Trustee, and defines the classes of securities (often called “Certificates”) that the trust will issue to investors and establishes the order of priority between classes of Certificates as to distributions of cash collected and losses realized with respect to the underlying loans (the highest rated Certificates are paid first and the lowest rated Certificates suffer the first losses-thus the basis for the term “structured finance”); and

— the Servicer, Master Servicer and Trustee establish the Servicer’s rights and duties, including limits and extent of a Servicer’s right to deal with default, foreclosure, and Note modifications. Some PSA’s include detailed loss mitigation or modification rules, and others limit any substantive modifications (such as changing the interest rate, reducing the principal debt, waiving default debt, extending the repayment term, etc.)

4. All parties including the Custodian enter into the Custodial Agreement in which:

• the Depositor agrees to cause the Notes and other specified key loan documents (usually including an unrecorded, recordable Assignment “in blank”)(NB that several recent courts have raised serious legal questions about the assignment of a real estate instrument in blank under such theories as the statute of frauds and whether or not an assignment in blank is in fact a “recordable” legal real estate document) to be delivered to the Custodian (with the Securitizer to do the actual physical shipment);
• the Custodian agrees to inspect the Notes and other documents and to certify in designated written documents to the Trustee that the documents meet the required specifications and are in the Custodian’s possession; and
• establishes a (supposedly exclusive) procedure and specified forms whereby the Servicer can obtain possession of any Note, Mortgage, Deed of Trust or other custodial document for foreclosure or payoff purposes.

Finding Documents on the S.E.C.’s website (the EDGAR filing system):

• If you know the name of the Depositor and the name of the Trust (e.g. “Time Bomb Mortgage Trust 2006-2”) that contains the loan in question, then the PSA and Custodial Agreement probably can be found on the SEC’s website (www.sec.gov):
• On the SEC home page look for a link to “Search for Company Filings” and then choose to search by “Company Name,” using the name of the Depositor. (Alternatively, click on the “Contains” button on the search page and then search by the series, i.e. 2006-2 in the above example.)
• Hopefully, this will enable you to find the Trust in question. If so, the PSA and the Custodial Agreement should be available as attachments to one or more of the earliest-filed forms (normally the 8-K) shown on the list of available documents. Sometimes the PSA is listed as a named document but other times you just look for the largest document in terms of megabytes filed with the 8-K form.
• The available documents also should include the Prospectus and/or Prospectus Supplement (Form 424B5) and the Free Writing Prospectus (“FWP”). The latter documents (at least the sections written in English, as opposed to the many tables of financial data) can be very helpful in providing a concise and straightforward description of the parties, documents, and transaction steps and detailed transactional graphs and charts in the particular deal. And because these are SEC documents, the information serves as highly credible evidence on these points, and the Court can take judicial notice of any document filed with the SEC.
• For securitizations created after January 1, 2006, SEC “Regulation AB” requires the parties to file a considerable amount of detailed information about the individual loans included in the Trust. This information may be filed as an Exhibit to the PSA or to a Form 8-K. This loan-level data typically includes loan numbers, interest rates, principal amount of loan, origination date and (sometimes) property addresses and thus can be very useful in proving that a particular loan is in a particular Trust.

Dealing with Notes and Assignments:

There are two basic documents involved in a residential mortgage loan: the promissory note and the mortgage (or deed of trust). For brevity’s sake these are referred to simply as the Note and the Mortgage.

A Note is: a contract to repay borrowed money. It is a negotiable instrument governed by Article 3 of the Uniform Commercial Code (UCC). The Note, by itself, is an unsecured debt. Notes are personal property. Notes are negotiated by endorsement or by transfer and delivery as provided for by the UCC. Notes are separate legal documents from the real estate instruments that secure the loans evidenced by the Notes by liens on real property.

A Mortgage is: a lien on, and an interest in, real estate. It is a security agreement. It creates a lien on the real estate as collateral for a debt, but it does not create the debt itself. The rights created by a Mortgage are classified as real property and these instruments are governed by local real estate law in each jurisdiction. The UCC has nothing to do with the creation, drafting, recording or assignment of these real estate instruments.

A Note can only be transferred by: an “Endorsement” if the Note is payable to a particular party; or by transfer of possession of the Note, if the Note is endorsed “in blank.” Endorsements must be written or stamped on the face of the Note or on a piece of paper physically attached to the Note (the Allonge). See UCC §3-210 through §3-205. The UCC does not recognize an Assignment as a valid means of transferring a Note such that the transferee becomes a “holder”, which is what the owners of securitized mortgage notes universally claim to be.

In most states, an Allonge cannot be used to endorse a note if there is sufficient room at the “foot of the note” for such endorsements. The “foot of the note” refers to the space immediately below the signatures of the borrowers. Also, if an Allonge is properly used, then it must describe the terms of the note and most importantly must be “permanently affixed” to the Note. Most jurisdictions hold that “staples” and “tape” do not constitute a “permanent” attachment. And, the Master Document Custodial Agreement may specify when an Allonge can be used and how it must be attached to the original Note.

Mortgage rights can only be transferred by: an Assignment recorded in the local land records. Mortgage rights are “estates in land” and therefore governed by the state’s real property laws. These vary from state to state but in general Mortgage rights can only be transferred by a recorded instrument (the Assignment) in order to be effective against third parties without notice.

In discussions of exactly what documents are required to transfer a “mortgage loan” confusion often arises between Notes versus Mortgages and the respective documents necessary to accomplish transfers of each. The issue often arises from the standpoint of proof: Has Party A proven that a transfer has occurred to it from Party B? Does Party A need to have an Assignment? The answer often depends on exactly what Party A is trying to prove.

Scenario 1: Party A is trying to prove that the Trustee “owns the loan.” Here the likely questions are, did the transaction steps actually occur as required by the PSA and as represented in the Prospectus Supplement, and are the Trustee’s ownership rights subject to challenge in a bankruptcy case?

The answers lie in the UCC and in documents such as:

• the MLPSA’s;
• conveyancing rules of the PSA (normally Section 2.01);
• transfer and delivery receipts (look for these to be described in the “Conditions to Closing” or similarly named section of MLPSA’s and the PSA);
• funds transfer records (canceled checks, wire transfers, etc);
• compliance and exception reports provided by the Custodian pursuant to the Master Document Custodial Agreement; and
• the “true sale” legal opinions.

Some of these documents may or may not be available on the SEC’s EDGAR system; some may be obtainable only through discovery in litigation. The primary inquiry is whether or not the documents, money and records that were required to have been produced and change hands actually do so as required, and at the times required, by the terms of the transaction documents.

Another question sometimes asked when examining the “validity” of a securitization (or in other words, the rights of a securitization Trustee versus a bankruptcy trustee) is, must the Note be endorsed to the Trustee at the time of the securitization? Here are some points to consider:

• Frequently the only endorsement on the Note is from the Securitizer-Sponsor “in blank” and the only Assignment that exists, pre-foreclosure, is from the Securitizer-Sponsor “in blank” (in other words, the name of the transferee is not inserted in the instrument and this space is blank).
• The concept widely accepted in the securitization world (the issuers and ratings agencies, and the law firms advising them) is that this form of documentation was sufficient for a valid and unbroken chain of transfers of the Notes and assignments of the Mortgages as long as everything was done consistently with the terms of the securitization documents. This article is not intended to validate or defend either this concept or this practice, nor is it intended to represent in any way that the terms of the securitization documents were actually followed to the letter in every real-world case. In fact, and unfortunately for the certificate holders and the securitized mortgage markets, there are many instances in many reported cases where these mandatory rules of the securitization documents have not been followed but in fact, completely ignored.
• Often shortly before foreclosure (or in some cases afterwards) a mortgage assignment is produced from the Originator to the Trustee years after the Trust has closed out for the receipt of all mortgage loans. Such assignments are inconsistent with the mandatory conveyancing rules of the Trust Documents and are also inconsistent with the special tax rules that apply to these special trust structures. Most state law requires the chain of title not to include any mortgage assignments in blank, but assignments from A to B to C to D. Under most state statutes, an assignment in blank would be deemed an “incomplete real estate instrument.” Even more frequent than A to D assignments are MERS to D assignments, which suffer from the same transfer problems noted herein plus what is commonly referred to as the “MERS problem.”

Scenario 2: Party B seeks to prove standing to foreclose or to appear in court with the rights of a secured creditor under the Bankruptcy Code. OK, granted the UCC (§3-301) does provide that a negotiable instrument can be enforced either by “(i) the holder of the instrument, or (ii) a non-holder in possession of the instrument who has the rights of a holder.”

• Servicers and foreclosure counsel have been known to contend that this is the end of the story and that the servicer can therefore do anything that the holder of the Note could do, anywhere, anytime.

• The Fannie Mae and Freddie Mac Guides contain many sections that appear to lend superficial support to this contention and frequently will be cited by Servicers and foreclosure counsel as though the Guides have the force of law, which of course they do not.

• There are many serious problems with this legal position, as recognized by an increasing number of reported court decisions.

Authors’ General Conclusions and Observations:

• Servicers and foreclosure firms are either wrong, or at least not being cautious, if they attempt to foreclose, or appear in court, without having a valid pre-complaint or pre-motion Assignment of the Mortgage. Yet at the same time, Servicers and note holders place themselves at risk of preference and avoidable transfer issues in bankruptcy cases if, for example, endorsements and Assignments that they rely upon to support claims to secured status occur or are recorded after or soon before bankruptcy filing.

• In addition any Servicer, Lender, or Securitization Trustee is either wrong, or at least not being cautious, if it ever: (1) claims in any communications to a consumer or to the Court in a judicial proceeding that it is the Note holder unless they are, at the relevant point in time, actually the holder and owner of the Note as determined under UCC law; or (2) undertakes to enforce rights under a Mortgage without having and recording a valid Assignment.
• The UCC deals only with enforcing the Note. Enforcing the Mortgage on the other hand is governed by the state’s real property and foreclosure laws, which generally contain crucial provisions regarding actions required to be taken by the “note holder” or “beneficiary.” State law may or may not authorize particular actions to be taken by servicers or agents of the holder of the Note.

• For the Servicer to have “the rights of the holder” under the UCC it must be acting in accordance with its contract. For example, if the Servicer claims to have possession of the Note, did it follow the procedures contained in the “Release of Documents” section of the Custodial Agreement in obtaining possession? Does the Servicer really have “constitutional” standing under either Federal or State law to enforce the Note even if it is a “holder” if it does not have any “pecuniary” or economic interest in the Note? In short, the concept of constitutional standing involves some injury in fact and it is hard to see how a mere “place-holder” or “Nominee” could ever over-come such a hurdle unless it actually owned the Note or some real interest in the same.

• The Servicer should have the burden of explaining the legal reasons supporting its standing and authority to act. Sometimes Servicers have difficulty maintaining a consistent story in this regard. Is the Servicer claiming to be the actual holder, or the holder and the owner, or merely an authorized agent of the true holder? If it is claiming some agency, what proof does it have to support such a claim? What proof is required? Sometimes this is just academic legal hair-splitting but many times it involves serious issues of fact. For example, what if the attorney for the Servicer asserts to the court that his or her client actually owns the Note, but the Fannie Mae website reports that Fannie is the owner? What if the MERS website reports that the Plaintiff is just the “Servicer?” What if the pre-complaint correspondence to the borrower names some entirely different party as the holder and indicated that the current plaintiff is only the Servicer?

• Finally, the Servicer always has an obligation to be factually accurate in borrower communications and legal proceedings, and to supervise employees and vendors and attorneys to assure that Note endorsements, Assignments of Mortgage, and affidavits are executed by persons with valid corporate authority, and not falsified nor offered for any improper purpose.

The focus of the default servicing industry must move from “how fast we can get things done” to “how honestly and accurately can we be in presenting the proper documentation to the courts and to the borrowers”. Judicial proceedings are not like NASCAR races where the fastest lawyer always wins. Judicial proceedings are all about finding the truth no matter how long it takes and regardless of the time and difficulties involved.

California Court Rules: MERS Can’t Foreclose, Citibank Can’t Collect

“Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is VOID under California Law.”

If you read that sentence and thought… “MERS,” then you’re already in the club. If you’ve never heard of MERS, and have no idea what is meant by being “in the club,” don’t worry, this is a club that just about every homeowner is invited to join. In fact, you may already be a member and not even know it.
MERS is the acronym used to describe Mortgage Electronic Registration Systems, Inc. Best I can tell, our friends in the mortgage banking industry created MERS to make it easier for banks and servicers to sell and transfer our mortgages at the speed of light during the real estate bubble. According to the company’s Website:
MERS was created by the mortgage banking industry to streamline the mortgage process by using electronic commerce to eliminate paper. Our mission is to register every mortgage loan in the United States on the MERS®System.
MERS acts as nominee in the county land records for the lender and servicer. Any loan registered on the MERS®System is inoculated against future assignments because MERS remains the nominal mortgagee no matter how many times servicing is traded.

I have to tell you… I hate these guys already. Their attitude alone bothers me. I looked at pictures of their three top executives on their Website and thought to myself… “No way I’d be friends with these guys.” Probably not very fair of me, but as far as I’m concerned, when it comes to anything that talks like that and was created by the mortgage banking industry… “fair,” is where you go on Sunday to have popcorn and cotton candy. Just so we’re clear.
MERS, which is a company that I hear doesn’t even have employees, has been about as controversial as you get ever since houses started dropping like flies into foreclosure back in 2007-08. God forbid you find yourself losing your home to foreclosure, you’ll very likely find a representative from MERS looking smug and acting like the owner of your mortgage. But, MERS is not the owner of your mortgage, of course, and now a bankruptcy court judge in the Eastern District of California has officially said that he agrees.
MERS is a relatively new development in the mortgage world, and as the foreclosure crisis began the courts pretty much let them do whatever they wanted to do, as the party in interest in a foreclosure action.
But, that was before the foreclosures became a full fledged tsunami, and homeowners watched the bankers first get bailed out, and then pay out billions in bonuses before treating every single American homeowner/taxpayer who applied for a loan modification like insignificant garbage.
In response, homeowners, having been trained for over 200 years in the fine art of pushing back when shoved, went to their lawyers, and those lawyers started asking questions, as they are prone to do. Many started with questions like: “Who the heck is this MERS guy and why does he think he has any right to be foreclosing on my client’s home?”
For almost two full years, it seemed to me that judges, who frankly weren’t used to foreclosures being challenged, basically yawned and gave the house back to the bank. Then, starting about a year ago, give or take, things started to change. Judges started to listen to the points being raised as related to MERS showing up as the party in interest ready to foreclose, and the more the judges learned, the more they saw problems with what MERS was doing. As time went on the tide seemed to shift a bit and several decisions weren’t falling as MERS would have liked for one reason or another.
According to the company’s Website, MERS “is a proper party that can lawfully foreclose as the mortgagee and note-holder of a mortgage loan.” Here’s what it says on the MERS Website:
FORECLOSURES
(“MERS”) is In mortgage foreclosure cases, the plaintiff has standing as the holder of the note and the mortgage. When MERS forecloses, MERS is the mortgagee and it is the holder of the note because a MERS officer will be in possession of the original note endorsed in blank, which makes MERS a holder of the bearer paper.

But, in this latest decision, the bankruptcy judge in California didn’t agree, writing in his opinion:
“Since no evidence of MERS’ ownership of the underlying note has been offered, and other courts have concluded that MERS does not own the underlying notes, this court is convinced that MERS had no interest it could transfer to Citibank. Since MERS did not own the underlying note, it could not transfer the beneficial interest of the Deed of Trust to another. Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law.”

Did you get that? Since MERS didn’t own the underlying note, it couldn’t transfer the beneficial interest of the Deed of Trust to Citibank.

According to several attorneys, this opinion should serve as legal basis to challenge a foreclosure in California that has been based on a MERS assignment. It could also be used when seeking to void any MERS assignment of the Deed of Trust, or the note, to a third party for purposes of foreclosure; and should be sufficient for a borrower to obtain a TRO against a Trustee’s Sale, and a Preliminary Injunction preventing any sale, pending litigation filed by the borrower that challenges a foreclosure based on a MERS assignment.
In this decision the court found that MERS was acting “only as a nominee,” under the Deed of Trust, and that there was no evidence of the note being transferred. The judge’s opinion in this case also said that “several courts have acknowledged that MERS is not the owner of the underlying note and therefore could not transfer the note, the beneficial interest in the deed of trust, or foreclose on the property secured by the deed”, citing cases of: In Re Vargas, California Bankruptcy Court; Landmark v. Kesler, Kansas decision as to lack of authority of MERS; LaSalle Bank v. Lamy, a New York case; and In Re Foreclosure Cases, the “Boyko” decision from Ohio Federal Court.
And the court concluded by stating:
“Since the claimant, Citibank, has not established that it is the owner of the promissory note secured by the trust deed, Citibank is unable to assert a claim for payment in this case.”

Oh my… well, that really is something. MERS can’t foreclose and Citibank can’t collect? I believe you would have to say that MERS and Citibank were already in a hard place when the judge inserted a rock. MERS can’t foreclose and Citi can’t collect… I am absolutely loving this, I have to say, but I suppose giddy would be an inappropriate response, so I’ll just say, “how interesting”.
This decision means that if a foreclosing party in California, that is not the original lender, claims that payment is due under the note, and that they have the right to foreclose on the basis of a MERS assignment, they’re wrong… based on this opinion. The bottom line is that MERS has no authority to transfer the note because it never owned it, and that’s a view that even seems to be supported by MERS’ own contract, which says that “MERS agrees not to assert any rights to mortgage loans or properties mortgaged thereby”.
What this may mean to California’s homeowners in bankruptcy court…
· It should serve as a legal basis to challenge any foreclosure in California based on a MERS assignment.
· It should serve as the legal basis for voiding a MERS assignment of the Deed of Trust, or the note, to a third party for purposes of foreclosure.
· It should be an adequate basis for obtaining a TRO against a Trustee’s Sale
· It should be the basis for a Preliminary Injunction barring any sale pending litigation filed by the borrower that challenges a foreclosure based on a MERS assignment.
In addition, some lawyers believe that this ruling is relevant to borrowers across the country as well, because the court cited non-bankruptcy cases related to the lack of authority of MERS, and because this opinion is consistent with prior rulings in Idaho and Nevada Bankruptcy courts on the same issue.
I don’t know about you, but I feel like watching a marching band. 76 trombones, baby, 76 trombones.
“Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is VOID under California Law.”

The Proof of Claim at issue, listed as claim number 5 on the court’s official
claims registry, asserts a $1,320,650.52 secured claim. The Debtor objects to
the Claim on the basis that the claimant, Citibank, N.A., did not provided any
evidence that Citibank has the authority to bring the claim, as required by
Federal Rule of Bankruptcy Procedure 3001(c), rendering the claim facially
defective.
The court’s review of the claim shows that the Deed of Trust purports to have
been assigned to Citibank, N.A. by Mortgage Electronic Registration Systems,
Inc. as nominee for Bayrock Mortgage Corporation on March 5, 2010. (Proof of
Claim No. 5 p.36-37, Mar. 19, 2010.) Debtor contends that this does not
establish that Citibank is the owner of the underling promissory note since the
assignor, Mortgage Electronic Registration Systems, Inc. (“MERS”), had no
interest in the note to transfer. Debtors loan was originated by Bayrock
Mortgage Corporation and no evidence of the current owner of the promissory
note is attached to the proof of claim. It is well established law in the
Ninth Circuit that the assignment of a trust deed does not assign the
underlying promissory note and right to be paid, and that the security interest
is incident of the debt. 4 WITKIN SUMMARY OF CALIFORNIA LAW, SECURED TRANSACTIONS IN REAL
PROPERTY §105 (10th ed).

MERS AND CITIBANK ARE NOT THE REAL PARTIES IN INTEREST
Under California law, to perfect the transfer of mortgage paper as collateral
the owner should physically deliver the note to the transferee. Bear v. Golden
Plan of California, Inc., 829 F.2d 705, 709 (9th Cir. 1986). Without physical
transfer, the sale of the note could be invalid as a fraudulent conveyance,
Cal. Civ. Code §3440, or as unperfected, Cal. Com. Code §§9313-9314. See ROGER
BERNHARDT, CALIFORNIA MORTGAGES AND DEEDS OF TRUSTS, AND FORECLOSURE LITIGATION §1.26 (4th
ed. 2009). The note here specifically identified the party to whom it was
payable, Bayrock Mortgage Corporation, and the note therefore cannot be
transferred unless the note is endorsed. See Cal. Com. Code §§3109, 3201, 3203,
3204. The attachments to the claim do not establish that Bayrock Mortgage
Corporation endorsed and sold the note to any other party.
TRANSFER OF AN INTEREST IN THE DEED OF TRUST ALONE IS VOID
MERS acted only as a “nominee” for Bayrock Mortgage under the Deed of Trust.
Since no evidence has been offered that the promissory note has been
transferred, MERS could only transfer what ever interest it had in the Deed of
Trust. However, the promissory note and the Deed of Trust are inseparable.
“The note and the mortgage are inseparable; the former as essential, the later
as an incident. An assignment of the note carries the mortgage with it, while
an assignment of the latter alone is a nullity.” Carpenter v. Longan, 83 U.S.
271, 274 (1872); accord Henley v. Hotaling, 41 Cal. 22, 28 (1871); Seidell v.
Tuxedo Land Co., 216 Cal. 165, 170 (1932); Cal. Civ. Code §2936. Therefore,
if on party receives the note an another receives the deed of trust, the holder
of the note prevails regardless of the order in which the interests were
transferred. Adler v. Sargent, 109 Cal. 42, 49-50 (1895).

Further, several courts have acknowledged that MERS is not the owner of the
underlying note and therefore could not transfer the note, the beneficial
interest in the deed of trust, or foreclose upon the property secured by the
deed. See In re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007);
In re Vargas, 396 B.R. 511, 520 (Bankr. C.D. Cal. 2008); Landmark Nat’l Bank
v. Kesler, 216 P.3d 158 (Kan. 2009); LaSalle Bank v. Lamy, 824 N.Y.S.2d 769
(N.Y. Sup. Ct. 2006). Since no evidence of MERS’ ownership of the underlying
note has been offered, and other courts have concluded that MERS does not own
the underlying notes, this court is convinced that MERS had no interest it
could transfer to Citibank.
Since MERS did not own the underling note, it could not transfer the beneficial
interest of the Deed of Trust to another. Any attempt to transfer the
beneficial interest of a trust deed with out ownership of the underlying note
is void under California law. Therefore Citibank has not established that it
is entitled to assert a claim in this case.
MULTIPLE CLAIMS TO THE BENEFICIAL INTEREST IN THE DEED OF TRUST AND OWNERSHIP
OF PROMISSORY NOTE SECURED THEREBY
Debtor also points out that four separate entities have claimed beneficial
ownership of the deed of trust. (Obj. to Claim 3-5, Apr. 6, 2010.) The true
owner of the underling promissory note needs to step forward to settle the
cloud that has been created surrounding the relevant parties rights and
interests under the trust deed.
DECISION
11 U.S.C. §502(a) provides that a claim supported by a Proof of Claim is
allowed unless a party in interest objects. Once an objection has been filed,
the court may determine the amount of the claim after a noticed hearing. 11
U.S.C. §502(b). Since the claimant, Citibank, has not established that it is
the owner of the promissory note secured by the trust deed, Citibank is unable
to assert a claim for payment in this case. The objection is sustained and
Claim Number 5 on the court’s official register is disallowed in its entirety,
with leave for the owner of the promissory note to file a claim in this case
by June 18, 2010.
The court disallowing the proof of claim does not alter or modify the trust
deed or the fact that someone has an interest in the property which can be
subject thereto. The order disallowing the proof of claim shall expressly so
provide.
The court shall issue a minute order consistent with this ruling.

Biggest Defaulters on Mortgages Are the Rich

By DAVID STREITFELD
Published: July 8, 2010

LOS ALTOS, Calif. — No need for tears, but the well-off are losing their master suites and saying goodbye to their wine cellars.

Peter DaSilva for The New York Times

A foreclosed house in Los Altos, Calif., where five such homes were recently set for an auction.

The housing bust that began among the working class in remote subdivisions and quickly progressed to the suburban middle class is striking the upper class in privileged enclaves like this one in Silicon Valley.

Whether it is their residence, a second home or a house bought as an investment, the rich have stopped paying the mortgage at a rate that greatly exceeds the rest of the population.

More than one in seven homeowners with loans in excess of a million dollars are seriously delinquent, according to data compiled for The New York Times by the real estate analytics firm CoreLogic.

By contrast, homeowners with less lavish housing are much more likely to keep writing checks to their lender. About one in 12 mortgages below the million-dollar mark is delinquent.

Though it is hard to prove, the CoreLogic data suggest that many of the well-to-do are purposely dumping their financially draining properties, just as they would any sour investment.

“The rich are different: they are more ruthless,” said Sam Khater, CoreLogic’s senior economist.

Five properties here in Los Altos were scheduled for foreclosure auctions in a recent issue of The Los Altos Town Crier, the weekly newspaper where local legal notices are posted. Four have unpaid mortgage debt of more than $1 million, with the highest amount $2.8 million.

Not so long ago, said Chris Redden, the paper’s advertising services director, “it was a surprise if we had one foreclosure a month.”

The sheriff in Cook County, Ill., is increasingly in demand to evict foreclosed owners in the upscale suburbs to the north and west of Chicago — like Wilmette, La Grange and Glencoe. The occupants are always gone by the time a deputy gets there, a spokesman said, but just barely.

In Las Vegas, Ken Lowman, a longtime agent for luxury properties, said four of the 11 sales he brokered in June were distressed properties.

“I’ve never seen the wealthy hit like this before,” Mr. Lowman said. “They made their plans based on the best of all possible scenarios — that their incomes would continue to grow, that real estate would never drop. Not many had a plan B.”

The defaulting owners, he said, often remain as long as they can. “They’re in denial,” he said.

Here in Los Altos, where the median home price of $1.5 million makes it one of the most exclusive towns in the country, several houses scheduled for auction were still occupied this week. The people who answered the door were reluctant to explain their circumstances in any detail.

At one house, where the lender was owed $1.3 million, there was a couch out front wrapped in plastic. A woman said she and her husband had lost their jobs and were moving in with relatives. At another house, the family said they were renters. A third family, whose mortgage is $1.6 million, said they would be moving this weekend.

At a vacant house with a pool, where the lender was seeking $1.27 million, a raft and a water gun lay abandoned on the entryway floor.

Lenders are fearful that many of the 11 million or so homeowners who owe more than their house is worth will walk away from them, especially if the real estate market begins to weaken again. The so-called strategic defaults have become a matter of intense debate in recent months.

Fannie Mae and Freddie Mac, the two quasi-governmental mortgage finance companies that own most of the mortgages in America with a value of less than $500,000, are alternately pleading with distressed homeowners not to be bad citizens and brandishing a stick at them.

In a recent column on Freddie Mac’s Web site, the company’s executive vice president, Don Bisenius, acknowledged that walking away “might well be a good decision for certain borrowers” but argues that those who do it are trashing their communities.

Garfield update 2009-2010

1. No governmental relief is in sight for homeowners except in isolated instances of community action together with publicity from the media.
2. State and federal governments continue to sink deeper into debt, cutting social and necessary services while avoiding the elephant in the living room: the trillions of dollars owed and collectible in taxes, recording fees, filing fees, late fees, penalties, financial damages, punitive damages and interest due from the intermediary players on Wall Street who created trading “instruments” based upon conveyance of interests in real property located within state borders. The death grip of the lobby for the financial service industry is likely to continue thus making it impossible to resolve the housing crisis, the state budget crisis or the federal budget deficit.
3. Using taxpayer funds borrowed from foreign governments or created through quantitative easing, trillions of dollars have been paid, or provided in “credit lines” to intermediaries on the false premise that they own or control the mortgage backed securities that have defaulted. Foreclosures continue to hit new highs. Total money injected into the system exceeds 8 trillion dollars. Record profits announced by the financial services industry in which power is now more concentrated than before, making them the strongest influence in Federal and State capitals around the world.
4. Toxic Titles reveal unmarketable properties in and out of foreclosures with no relief in sight because nearly everyone is ignoring this basic problem that is a deal-breaker on every transfer of an interest in real property.
5. Evictions continue to hit new highs as Judges continue to be bombarded with ill-conceived motions that do not address the jurisdiction or authority of the court. The illegal evictions are based upon fraudulent conveyances procured through abuse of the foreclosure process and direct misrepresentations and fraud upon the court and recording system in each county as to the documents fabricated for purposes of foreclosure — creating the illusion of a proper paper trail.
6. 1.7 million new foreclosed properties are due to hit the market according to published statistics. Livinglies estimate the number to be at least 4 million.
7. Downward pressure on both price and marketability continues with no end in sight.
8. Unemployment continues to rise, albeit far more slowly than at the beginning of 2009. Unemployment, underemployment, employment drop-outs, absence of entry-level jobs, low statistics on new business starts, and former members of workforce (particularly men) are harbingers for continued decline in median income combined with higher expenses for key components, particularly health care. The ability to pay anything other than rent is continuing its decline.
9. Concurrent with the increase in foreclosures and the decrease in housing prices, official figures put the number of homes underwater at 25%. Livinglies estimates that when you look at three components not included in official statistics, the figure rises to more than 45%. The components are selling discounts, selling expenses, and continued delusional asking prices that will soon crash when sellers realize that past high prices were an illusion, not a market fluctuation.
10. The number of people walking from their homes is increasing daily, including people who are not behind in their mortgages. This is increasing the inventory of homes that are not officially included in the pipeline because they are not sufficiently advanced in the delinquency or foreclosure process. This is a hidden second wave of pressure on housing prices and marketability.
11. With the entire economy on government life-support that is not completely effective in preventing rises in homelessness and people requiring public assistance, the likelihood of severe social unrest and political upheaval increases month by month. Increasing risks of unrest prompted at least one Wall Street Bank to order enough firearms and ammunition to start an armory.
12. Modification of mortgages has been largely a sham.
13. Short-sales have been largely a sham.
14. Quiet titles in favor of homeowners are increasing at a slow pace as the sophistication of defenses improves on the side of financial services companies seeking free homes through foreclosures.
15. Legislative Intervention has been ineffective and indeed, misleading
16. Executive intervention has been virtually non-existent. The people who perpetrated this fraud not only have evaded prosecution, they maintain close relationships with the Obama administration.
17. Judicial intervention has been spotty and could be much better once people accept the complexity of securitization and the simplicity of STRATEGIES THAT WORK.
18. Legal profession , slow to start went from zero to 15 mph during 2009. Let’s hope they get to 60 mph during 2010.
19. Accounting profession, which has thus far stayed out of the process is expected to jump in on several fronts, including closer scrutiny of the published financial statements of public companies and financial institutions and the cottage industry of examining loan documents for compliance issues and violations of Federal and State lending laws.
20. Prospects for actual economic recovery affecting the average citizen are dim. While there has been considerable improvement from the point of risk we had reached at the end of 2008, the new President and Congress have yet to address essential reforms on joblessness, regulation of financial services (including insurance businesses permitted to write commitments without sufficient assets in reserve to assure the payment of the risk. The economic indicators have been undermined by the intentional fraud perpetrated upon the world economic and financial system. Thus the official figures are further than ever from revealing the truth about about our current status. Without key acceptance of these anomalies it is inconceivable that the economy will, in reality, improve during 2010.
21. Real inflation affecting everyday Americans has already started to rise as credit markets become increasingly remote from the prospective borrowers. Hyperinflation remains a risk although most of us were off on the timing because we underestimated the tenacious grip the dollar had on world commerce. While this assisted us in moving toward a softer landing, the probability that the dollar will continue to fall is still very high, thus making certain non-dollar denominated commodities more valuable. This phenomenon could affect housing prices in an upward direction if the trend continues. However the higher dollar prices will be offset by the fact that the cheaper dollars are required in greater quantities to buy anything. Thus the home prices might rise from $125,000 to $150,000 but the price of a loaf of bread will also be higher by 20%.
22. GDP has been skewed away from including econometrics for actual work performed in the home unless money changes hands. Societal values have thus depreciated the value of child-rearing and stable homes. The results have been catastrophic in education, crime, technological innovation and policy making. While GDP figures are officially announced as moving higher, the country continues to move further into a depression. No actual increase in GDP has occurred for many years, unless the declining areas of the society are excluded from what is counted.
23. The stock market is vastly overvalued again based upon vaporous forward earnings estimates and completely arbitrary price earnings ratios used by analysts. The vapor created by a 1000% increase in money supply caused by deregulation of the private financial institutions together with the illusion of profits created by these institutions trading between themselves has resulted in an increase from 16% to 45% of GDP activity. This figure is impossible to be real. As long as it is accepted as real or even possible, public figures, appointed and elected will base policy decisions on the desires of what is currently seen as the main driver of the U.S. economy. The balance of wealth will continue to move toward the levels of revolutionary France or the American colonies.
24. Perceptible increases in savings and consumer resistance to retail impulse buying bodes well for the long-term prospects of the country. As the savings class becomes more savvy and more wealthy, they will, like their counterparts in the upper echelons of government commence exercising their power in the marketplace and in the voting booth.

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Tags: 2923.5, eviction, Foreclosure, Fraud, litigation, Mortgage modification, Predatory Lending

Categories : 2923.5, 2923.6, 2924, Foreclosure, Predatory Lending, eviction, stop foreclosure

90% Forclosures Wrongful

1 01 2010

A wrongful foreclosure action typically occurs when the lender starts a non judicial foreclosure action when it simply has no legal cause. This is even more evident now since California passed the Foreclosure prevention act of 2008 SB 1194 codified in Civil code 2923.5 and 2923.6. In 2009 it is this attorneys opinion that 90% of all foreclosures are wrongful in that the lender does not comply (just look at the declaration page on the notice of default). The lenders most notably Indymac, Countrywide, and Wells Fargo have taken a calculated risk. To comply would cost hundreds of millions in staff, paperwork, and workouts that they don’t deem to be in their best interest. The workout is not in there best interest because our tax dollars are guaranteeing the Banks that are To Big to Fail’s debt. If they don’t foreclose and if they work it out the loss is on them. There is no incentive to modify loan for the benefit of the consumer.

Sooooo they proceed to foreclosure without the mandated contacts with the borrower. Oh and yes contact is made by a computer or some outsourcing contact agent based in India. But compliance with 2923.5 is not done. The Borrower is never told that he or she have the right to a meeting within 14 days of the contact. They do not get offers to avoid foreclosure there are typically two offers short sale or a probationary mod that will be declined upon the 90th day.

Wrongful foreclosure actions are also brought when the service providers accept partial payments after initiation of the wrongful foreclosure process, and then continue on with the foreclosure process. These predatory lending strategies, as well as other forms of misleading homeowners, are illegal.

The borrower is the one that files a wrongful disclosure action with the court against the service provider, the holder of the note and if it is a non-judicial foreclosure, against the trustee complaining that there was an illegal, fraudulent or willfully oppressive sale of property under a power of sale contained in a mortgage or deed or court judicial proceeding. The borrower can also allege emotional distress and ask for punitive damages in a wrongful foreclosure action.

Causes of Action

Wrongful foreclosure actions may allege that the amount stated in the notice of default as due and owing is incorrect because of the following reasons:

* Incorrect interest rate adjustment
* Incorrect tax impound accounts
* Misapplied payments
* Forbearance agreement which was not adhered to by the servicer
* Unnecessary forced place insurance,
* Improper accounting for a confirmed chapter 11 or chapter 13 bankruptcy plan.
* Breach of contract
* Intentional infliction of emotional distress
* Negligent infliction of emotional distress
* Unfair Business Practices
* Quiet title
* Wrongful foreclosure
* Tortuous violation of 2924 2923.5 and 2923.5 and 2932.5
Injunction

Any time prior to the foreclosure sale, a borrower can apply for an injunction with the intent of stopping the foreclosure sale until issues in the lawsuit are resolved. The wrongful foreclosure lawsuit can take anywhere from ten to twenty-four months. Generally, an injunction will only be issued by the court if the court determines that: (1) the borrower is entitled to the injunction; and (2) that if the injunction is not granted, the borrower will be subject to irreparable harm.

Damages Available to Borrower

Damages available to a borrower in a wrongful foreclosure action include: compensation for the detriment caused, which are measured by the value of the property, emotional distress and punitive damages if there is evidence that the servicer or trustee committed fraud, oppression or malice in its wrongful conduct. If the borrower’s allegations are true and correct and the borrower wins the lawsuit, the servicer will have to undue or cancel the foreclosure sale, and pay the borrower’s legal bills.

Why Do Wrongful Foreclosures Occur?

Wrongful foreclosure cases occur usually because of a miscommunication between the lender and the borrower. Most borrower don’t know who the real lender is. Servicing has changed on average three times. And with the advent of MERS Mortgage Electronic Registration Systems the “investor lender” hundreds of times since the origination. And now they then have to contact the borrower. The don’t even know who the lender truly is. The laws that are now in place never contemplated the virtualization of the lending market. The present laws are inadequate to the challenge.

This is even more evident now since California passed the Foreclosure prevention act of 2008 SB 1194 codified in Civil code 2923.5 and 2923.6. In 2009 it is this attorneys opinion that 90% of all foreclosures are wrongful in that the lender does not comply (just look at the declaration page on the notice of default). The lenders most notably Indymac, Countrywide, and Wells Fargo have taken a calculated risk. To comply would cost hundreds of millions in staff, paperwork, and workouts that they don’t deem to be in their best interest. The workout is not in there best interest because our tax dollars are guaranteeing the Banks that are To Big to Fail’s debt. If they don’t foreclose and if they work it out the loss is on them. There is no incentive to modify loan for the benefit of the consumer.This could be as a result of an incorrectly applied payment, an error in interest charges and completely inaccurate information communicated between the lender and borrower. Some borrowers make the situation worse by ignoring their monthly statements and not promptly responding in writing to the lender’s communications. Many borrowers just assume that the lender will correct any inaccuracies or errors. Any one of these actions can quickly turn into a foreclosure action. Once an action is instituted, then the borrower will have to prove that it is wrongful or unwarranted. This is done by the borrower filing a wrongful foreclosure action. Costs are expensive and the action can take time to litigate.
Impact

The wrongful foreclosure will appear on the borrower’s credit report as a foreclosure, thereby ruining the borrower’s credit rating. Inaccurate delinquencies may also accompany the foreclosure on the credit report. After the foreclosure is found to be wrongful, the borrower must then petition to get the delinquencies and foreclosure off the credit report. This can take a long time and is emotionally distressing.

Wrongful foreclosure may also lead to the borrower losing their home and other assets if the borrower does not act quickly. This can have a devastating affect on a family that has been displaced out of their home. However, once the borrower’s wrongful foreclosure action is successful in court, the borrower may be entitled to compensation for their attorney fees, court costs, pain, suffering and emotional distress caused by the action.

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Tags: 2923.5, 2923.5 2923.6 2924 2932.5 Audit bankruptcy california California cram down Chapter 13 civil code 2923.5 civil code 2924 Countrywide Cram down Cramdown criminal acts eviction FCRA FDCPA Federal Jurisdi, 2923.6, 2924, 2932.5, civil code 2924, Countrywide, Foreclosure, Fraud, stop foreclosure

Categories : 2923.5, 2923.6, 2924, Foreclosure, Lender Class action

TERRY MABRY et al., opinion 2923.5 Cilvil code

7 06 2010

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

TERRY MABRY et al.,

Petitioners,

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

AURORA LOAN SERVICES, et al.,

Real Parties in Interest.

G042911

(Super. Ct. No. 30-2009-003090696)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, David C. Velazquez, Judge. Writ granted in part and denied in part.
Law Offices of Moses S. Hall and Moses S. Hall for Petitioners.
No appearance for Respondent.
Akerman Senterfitt, Justin D. Balser and Donald M. Scotten for Real Party in Interest Aurora Loan Services.
McCarthy & Holthus, Matthew Podmenik, Charles E. Bell and Melissa Robbins Contts for Real Party in Interest Quality Loan Service Corporation.
Bryan Cave, Douglas E. Winter, Christopher L. Dueringer, Sean D. Muntz and Kamae C. Shaw for Amici Curiae Bank of America and BAC Home Loans Servicing on behalf of Real Parties in Interest.
Wright, Finlay & Zak, Thomas Robert Finlay and Jennifer A. Johnson for Amici Curiae United Trustee’s Association and California Mortgage Association.
Leland Chan for Amicus Curiae California Bankers Association.

I. SUMMARY
Civil Code section 2923.5 requires, before a notice of default may be filed, that a lender contact the borrower in person or by phone to “assess” the borrower’s financial situation and “explore” options to prevent foreclosure. Here is the exact, operative language from the statute: “(2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure.” There is nothing in section 2923.5 that requires the lender to rewrite or modify the loan.
In this writ proceeding, we answer these questions about section 2923.5, also known as the Perata Mortgage Relief Act :
(A) May section 2923.5 be enforced by a private right of action? Yes. Otherwise the statute would be a dead letter.
(B) Must a borrower tender the full amount of the mortgage indebtedness due as a prerequisite to bringing an action under section 2923.5? No. To hold otherwise would defeat the purpose of the statute.
(C) Is section 2923.5 preempted by federal law? No — but, we must emphasize, it is not preempted because the remedy for noncompliance is a simple postponement of the foreclosure sale, nothing more.
(D) What is the extent of a private right of action under section 2923.5? To repeat: The right of action is limited to obtaining a postponement of an impending foreclosure to permit the lender to comply with section 2923.5.
(E) Must the declaration required of the lender by section 2923.5, subdivision (b) be under penalty of perjury? No. Such a requirement is not only not in the statute, but would be at odds with the way the statute is written.
(F) Does a declaration in a notice of default that tracks the language of section 2923.5, subdivision (b) comply with the statute, even though such language does not on its face delineate precisely which one of the three categories set forth in the declaration applies to the particular case at hand? Yes. There is no indication that the Legislature wanted to saddle lenders with the need to “custom draft” the statement required by the statute in notices of default.
(G) If a lender did not comply with section 2923.5 and a foreclosure sale has already been held, does that noncompliance affect the title to the foreclosed property obtained by the families or investors who may have bought the property at the foreclosure sale? No. The Legislature did nothing to affect the rule regarding foreclosure sales as final.
(H) In the present case, did the lender comply with section 2923.5? We cannot say on this record, and therefore must return the case to the trial court to determine which of the two sides is telling the truth. According to the lender, the borrowers themselves initiated a telephone conversation in which foreclosure-avoidance options were discussed, and there were many, many phone calls to the borrowers to attempt to discuss foreclosure-avoidance options. According to the borrowers, no one ever contacted them about nonforeclosure options. The trial judge, however, never reached this conflict in the facts, because he ruled strictly on legal grounds: namely (1) that section 2923.5 does not provide for a private right of action and (2) section 2923.5 is preempted by federal law. As indicated, we have concluded otherwise as to those two issues.
(I) Can section 2923.5 be enforced in a class action in this case? Not under these facts. The operation of section 2923.5 is highly fact-specific, and the details as to what might, or might not, constitute compliance can readily vary from lender to lender and borrower to borrower.
II. BACKGROUND
In December 2006, Terry and Michael Mabry refinanced the loan on their home in Corona from Paul Financial, borrowing about $700,000. In April 2008, Paul Financial assigned to Aurora Loan Services the right to service the loan. In this opinion, we will treat Aurora as synonymous with the lender and use the terms interchangeably.
According to the lender, in mid-July 2008 — before the Mabrys missed their August 2008 loan payment — the couple called Aurora on the telephone to discuss the loan with an Aurora employee. The discussion included mention of a number of options to avoid foreclosure, including loan modification, short sale, deed-in-lieu of foreclosure, and even a special forbearance. The Aurora employee sent a letter following up on the conversation. The letter explained the various options to avoid foreclosure, and asked the Mabrys to forward current financial information to Aurora so it could consider the Mabrys for these options.
According to the lender, the Mabrys missed their September 2008 payment as well, and mid-month Aurora sent them another letter describing ways to avoid foreclosure. Aurora employees called the Mabrys “many times” to discuss the situation. The Mabrys never picked up.
It is undisputed that later in September, the Mabrys filed Chapter 11 bankruptcy and Aurora did not contact the Mabrys while the bankruptcy was pending. (See 11 U.S.C. § 362 [automatic stay].) The Mabrys had their Chapter 11 case dismissed, however, in late March 2009.
According to the lender, Aurora once again began trying to call the Mabrys, calling them “numerous times,” including “three times on different days.” Meanwhile, in mid-April the Mabrys sent an authorization to discuss the loan with their lawyers.
According to the lender, finally, in June, the Mabrys sent two faxes to Aurora, the aggregate effect of which was to propose a short sale to the Mabrys’ attorney, Moses S. Hall, for $350,000. If accepted, the short sale would have meant a loss of over $400,000 on the loan. Aurora rejected that offer, and an attorney in Hall’s law office proposed a sale price of $425,000, which would have meant a loss to the lender of about $340,000.
It is undisputed that on June 18, 2009, Aurora recorded a notice of default. The notice of default used this (obviously form) language: “The Beneficiary or its designated agent declares that it has contacted the borrower, tried with due diligence to contact the borrower as required by California Civil Code section 2923.5, or the borrower has surrendered the property to the beneficiary or authorized agent, or is otherwise exempt from the requirements of section 2923.5.” Aurora sent six copies of the recorded notice of default to the Mabrys’ home by certified mail, and the certifications showed they were delivered.
It is also undisputed that on October 7, the Mabrys filed a complaint in Orange County Superior Court based on Aurora’s alleged failure to comply with section 2923.5.
According to the borrowers, no one had ever contacted them about their foreclosure options. Michael Mabry stated the following in his declaration: “We have never been contacted by Aurora nor [sic] any of its agents in person, by telephone or by first class mail to explore options for us to avoid foreclosure as required in CC § 2923.5.”
The complaint sought a temporary restraining order to prevent the foreclosure sale then scheduled just a week away, on October 14, 2009. Based on the allegation of no contact, the trial court issued a temporary restraining order, and scheduled a hearing for October 20.
But exactly one week before the October 20 hearing, the Mabrys filed an amended complaint, this one specifically adding class action allegations and seeking injunctive relief for an entire class. This new filing came with another request for a temporary restraining order, which was also granted, with a hearing on that temporary restraining order scheduled for October 27 (albeit the order was directed at Aurora only).
The first restraining order was vacated on October 20, the second on October 27. The trial judge did not, however, resolve the conflict in the facts presented by the pleadings. Rather he concluded: (1) the action is preempted by federal law; (2) there is no private right of action under section 2923.5 — the statute can only be enforced by members of pooling and servicing agreements; and (3) the Mabrys were required to at least tender all arrearages to enjoin any foreclosure proceedings.
The Mabrys filed a motion for reconsideration and a third request for a restraining order based on supposedly new law. The new law was a now review-granted Court of Appeal opinion which, let us merely note here, appears to have been quite off-point in regards to any issue which the trial judge had just decided. So it is not surprising that the requested restraining order was denied. The foreclosure sale was now scheduled for November 30, 2009. Six days before that, though, the Mabrys filed this writ proceeding, and two days later this court stayed all proceedings. We invited amicus curiae to give their views on the issues raised by the petition, and subsequently scheduled an order to show cause to consider those issues.
III. DISCUSSION
A. Private Right of Action? Yes
1. Preliminary Considerations
A private right of action may inhere within a statute, otherwise silent on the point, when such a private right of action is necessary to achieve the statute’s policy objectives. (E.g., Cannon v. University of Chicago (1979) 441 U.S. 677, 683 [implying private right of action into Title IX of the Civil Rights Act because such a right was necessary to achieve the statute’s policy objectives]; Basic Inc. v. Levinson (1988) 485 U.S. 224, 230-231 [implying private right of action to enforce securities statute].)
That is, the absence of an express private right of action is not necessarily preclusive of such a right. There are times when a private right of action may be implied by a statute. (E.g., Siegel v. American Savings & Loan Assn. (1989) 210 Cal.App.3d 953, 966 [“Before we reach the issue of exhaustion of administrative remedies, we must determine, therefore, whether plaintiffs have an implied private right of action under HOLA.”].)
California courts have, of recent date, looked to Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 (Moradi-Shalal) for guidance as to whether there is an implied private right of action in a given statute. In Moradi-Shalal, for example, the presence of a comprehensive administrative means of enforcement of a statute was one of the reasons the court determined that there was no private right of action to enforce a statute (Ins. Code, § 790.03, subd. (h)) regulating general insurance industry practices. (See Moradi-Shalal, supra, 46 Cal.3d at p. 300.)
There is also a pre-Moradi Shalal approach, embodied in Middlesex Ins. Co. v. Mann (1981) 124 Cal.App.3d 558, 570 (Middlesex). (The Middlesex opinion itself copied the idea from the Restatement Second of Torts, section 874A.) The approach looks to whether a private remedy is “appropriate” to further the “purpose of the legislation” and is “needed to assure the effectiveness of the provision.” (Middlesex, supra, 124 Cal.App.3d at p. 570.)
Obviously, where the two approaches conflict, the one used by our high court in Moradi-Shalal trumps the Middlesex approach. But we may note at this point that as regards section 2923.5, there is no alternative administrative mechanism to enforce the statute. By contrast, in Moradi-Shalal, there was an existing administrative mechanism at hand (by way of the Insurance Commissioner) available to enforce section 790.03, subdivision (h) of the Insurance Code.
There are other corollary principles as well.
First, California courts, quite naturally, do not favor constructions of statutes that render them advisory only, or a dead letter. (E.g., Petropoulos v. Department of Real Estate (2006) 142 Cal.App.4th 554, 567; People v. Stringham (1988) 206 Cal.App.3d 184, 197.) Our colleagues in Division One of this District nicely summarized this point in Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 375: “The question of whether a regulatory statute creates a private right of action depends on legislative intent . . . . In determining legislative intent, ‘[w]e first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent . . . . The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context. . . . These canons generally preclude judicial construction that renders part of the statute “meaningless or inoperative.”‘” (Italics added.)
Second, statutes on the same subject matter or of the same subject should be construed together so that all the parts of the statutory scheme are given effect. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1090-1091.) This canon is particularly important in the case before us, where there is an enforcement mechanism available at hand to enforce section 2923.5, in the form, as we explain below, of section 2924g. Ironically though, the enforcement mechanism at hand, in direct contrast to the one in Moradi-Shalal, is one that strongly implies individual enforcement of the statute.
Third, historical context can also shed light on whether the Legislature intended a private right of action in a statute. As noted by one federal district court that has found a private right of action in section 2923.5, the fact that a statute was enacted as an emergency statute is an important factor in determining legislative intent. (See Ortiz v. Accredited Home Lenders, Inc. (S.D. 2009) 639 F.Supp.2d 1159, 1166 [agreeing with argument that “the California legislature would not have enacted this ‘urgency’ legislation, intended to curb high foreclosure rates in the state, without any accompanying enforcement mechanism”]; cf. County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 609 [admitting that private right of action might exist, even if the Legislature did not imply one, if “‘compelling reasons of public policy'” required “judicial recognition of such a right”].) Section 2923.5 was enacted in 2008 as a manifestation of a felt need for urgent action in the midst of a cascading torrent of foreclosures.
Finally, of course, there is recourse to legislative history. Alas, in this case, there is silence on the matter as regards the existence of a private right of action in the final draft of the statute, and we have been cited to nothing in the history that suggests a clear legislative intent one way or the other. (See generally J.A. Jones Construction Co. v. Superior Court (1994) 27 Cal.App.4th 1568, 1575 (J.A. Jones) [emphasizing importance of clear intent appearing in legislative history].) To be sure, as we were reminded at oral argument, an early version of section 2923.5 had an express provision for a private right of action and that provision did not make its way into the final version of the statute. And we recognize that this factor suggests the Legislature may not have wanted to have section 2923.5 enforced privately.
On the other hand, the bottom line was an outcome of silence, not a clear statement that there should be no individual enforcement. And silence, as this court pointed out in J.A. Jones, has its own implications. There, we cited Professor Eskridge’s work on statutory interpretation (see Eskridge, The New Textualism (1990) 37 U.C.L.A. L.Rev. 621, 670-671 (hereinafter “Eskridge on Textualism”)) to recognize that ambiguity in a statute may itself be the result of both sides in the legislative process agreeing to let the courts decide a point: “[I]f there is ambiguity it is because the legislature either could not agree on clearer language or because it made the deliberate choice to be ambiguous — in effect, the only ‘intent’ is to pass the matter on to the courts.” (J.A. Jones, supra, 27 Cal. App.4th at p. 1577.) As Professor Eskridge put it elsewhere in his article: “The vast majority of the Court’s difficult statutory interpretation cases involve statutes whose ambiguity is either the result of deliberate legislative choice to leave conflictual decisions to agencies or the courts.” (Eskridge on Textualism, supra, 37 UCLA L.Rev. at p. 677.)
We have a concrete example in the case at hand. Amicus curiae, the California Bankers Association, asserts that if section 2923.5 had included an express right to a private right of action, the association would have vociferously opposed the legislation. Let us accept that as true. But let us also accept as a reasonable premise that the sponsors of the bill (2008, Senate Bill No. 1137) would have vociferously opposed the legislation if it had an express prohibition on individual enforcement. The point is, the bankers did not insist on language expressly or even impliedly precluding a private right of action, or, if they did, they didn’t get it. The silence is consonant with the idea that section 2923.5 was the result of a legislative compromise, with each side content to let the courts struggle with the issue.
With these observations, we now turn to the language, structure and function of the statute at issue.
2. Operation of Section 2923.5
Section 2923.5 is one of a series of detailed statutes that govern mortgages that span sections 2920 to 2967. Within that series is yet another long series of statutes governing rules involving foreclosure. This second series goes from section 2924, and then follows with sections 2924a through 2924l. (There is no section 2924m . . . yet.)
Section 2923.5 concerns the crucial first step in the foreclosure process: The recording of a notice of default as required by section 2924. (Just plain section 2924 — this one has no lower case letter behind it.)
The key text of section 2923.5 — “key” because of the substantive obligation it imposes on lenders — basically says that a lender cannot file a notice of default until the lender has contacted the borrower “in person or by telephone.” Thus an initial form letter won’t do. To quote the text directly, lenders must contact the borrower by phone or in person to “assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure.” The statute, of course, has alternative provisions in cases where the lender tries to contact a borrower, and the borrower simply won’t pick up the phone, the phone has been disconnected, the borrower hides or otherwise evades contact.
The contrast between section 2923.5 and one of its sister-statutes, section 2923.6, is also significant. By its terms, section 2923.5 operates substantively on lenders. They must do things in order to comply with the law. In Hohfeldian language, it both creates rights and corresponding obligations.
But consider section 2923.6, which does not operate substantively. Section 2923.6 merely expresses the hope that lenders will offer loan modifications on certain terms. By contrast, section 2923.5 requires a specified course of action. (There is a reason for the difference, as we show in part III.C., dealing with federal preemption. In a word, to have required loan modifications would have run afoul of federal law.)
As noted above, other steps in the foreclosure process are set forth in sections 2924a through 2924l. The topic of the postponement of foreclosure sales is addressed in section 2924g.
Subdivision (c)(1)(A) of section 2924g sets forth the grounds for postponements of foreclosure sales. One of those grounds is the open-ended possibility that any court of competent jurisdiction may issue an order postponing the sale. Section 2923.5 and section 2924g, subdivision (c)(1)(A), when read together, establish a natural, logical whole, and one wholly consonant with the Legislature’s intent in enacting 2923.5 to have individual borrowers and lenders “assess” and “explore” alternatives to foreclosure: If section 2923.5 is not complied with, then there is no valid notice of default, and without a valid notice of default, a foreclosure sale cannot proceed. The available, existing remedy is found in the ability of a court in section 2924g, subdivision (c)(1)(A), to postpone the sale until there has been compliance with section 2923.5. Reading section 2923.5 together with section 2924g, subdivision (c)(1)(A) gives section 2923.5 real effect. The alternative would mean that the Legislature conferred a right on individual borrowers in section 2923.5 without any means of enforcing that right.
By the same token, compliance with section 2923.5 is necessarily an individualized process. After all, the details of a borrower’s financial situation and the options open to a particular borrower to avoid foreclosure are going to vary, sometimes widely, from borrower to borrower. Section 2923.5 is not a statute, like subdivision (h) of section 790.03 of the Insurance Code construed in Moradi-Shalal, which contemplates a frequent or general business practice, and thus its very text is necessarily directed at those who regulate the insurance industry. (Insurance Code section 790.03, subdivision (h) begins with the words, “Knowingly committing or performing with such frequency as to indicate a general business practice any of the following unfair claims settlement practices: . . . .”; see generally Moradi-Shalal, supra, 46 Cal.3d 287.)
Rather, in order to have its obvious goal of forcing parties to communicate (the statutory words are “assess” and “explore”) about a borrower’s situation and the options to avoid foreclosure, section 2923.5 necessarily confers an individual right. The alternative proffered by the trial court — enforcement by the servicer of pooling agreements — involves the facially unworkable problem of fitting individual situations into collective pools.
The suggestion of one amicus that the Legislature intended enforcement of section 2923.5 to reside within the Attorney General’s office is one of which we express no opinion. Our decision today should thus not be read as precluding such enforcement by the Attorney General’s office. But we do note that the same individual-collective problem would dog Attorney General enforcement of the statute. To be sure (which is why the possibility should be left open), there might, ala Insurance Code section 790.03, subdivision (h), be lenders who systematically ignore section 2923.5, and their “general business practice” would be susceptible to some sort of collective enforcement. Even so, the Attorney General’s office can hardly be expected to take up the cause of every individual borrower whose diverse circumstances show noncompliance with section 2923.5.
3. Application
We now put the preceding ideas and factors together.
While the dropping of an express provision for private enforcement in the legislative process leading to section 2923.5 does indeed give us pause, it is outweighed by two major opposing factors. First, the very structure of section 2923.5 is inherently individual. That fact strongly suggests a legislative intention to allow individual enforcement of the statute. The statute would become a meaningless dead letter if no individual enforcement were allowed: It would mean that the Legislature created an inherently individual right and decided there was no remedy at all.
Second, when section 2923.5 was enacted as an urgency measure, there already was an existing enforcement mechanism at hand — section 2924g. There was no need to write a provision into section 2923.5 allowing a borrower to obtain a postponement of a foreclosure sale, since such a remedy was already present in section 2924g. Reading the two statutes together as allowing a remedy of postponement of foreclosure produces a logical and natural whole.
B. Tender Full Amount of Indebtedness? No
The right conferred by section 2923.5 is a right to be contacted to “assess” and “explore” alternatives to foreclosure prior to a notice of default. It is enforced by the postponement of a foreclosure sale. Therefore it would defeat the purpose of the statute to require the borrower to tender the full amount of the indebtedness prior to any enforcement of the right to — and that’s the point — the right to be contacted prior to the notice of default. Case law requiring payment or tender of the full amount of payment before any foreclosure sale can be postponed (e.g., Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578 [“It is settled that an action to set aside a trustee’s sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security.”]) arises out of a paradigm where, by definition, there is no way that a foreclosure sale can be avoided absent payment of all the indebtedness. Any irregularities in the sale would necessarily be harmless to the borrower if there was no full tender. (See 4 Miller & Starr, Cal. Real Estate (2d ed. 1989) § 9:154, pp. 507-508.) By contrast, the whole point of section 2923.5 is to create a new, even if limited right, to be contacted about the possibility of alternatives to full payment of arrearages. It would be contradictory to thwart the very operation of the statute if enforcement were predicated on full tender. It is well settled that statutes can modify common law rules. (E.g., Evangelatos v. Superior Court
44 Cal.3d 1188, 1192 [noting that Civil Code sections 1431 to 1431.5 had modified traditional common law doctrine of joint and several liability].)
C. Preempted by Federal Law? No — As Long
As Relief Under Section 2923.5 is Limited to Just Postponement
1. Historical Context
A remarkable aspect of section 2923.5 is that it appears to have been carefully drafted to avoid bumping into federal law, precisely because it is limited to affording borrowers only more time when lenders do not comply with the statute. To explain that, though, we need to make a digression into state debtors’ relief acts as they have manifested themselves in four previous periods of economic distress.
The first period of economic distress was the depression of the mid-1780’s that played a large part in engendering the United States Constitution in the first place. As Chief Justice Charles Evans Hughes would later note for a majority of the United States Supreme Court, there was “widespread distress following the revolutionary period and the plight of debtors, had called forth in the States an ignoble array of legislative schemes for the defeat of creditors and the invasion of contractual obligations.” (Home Building and Loan Ass’n. v. Blaisdell (1934) 290 U.S. 398, 427 (Blaisdell).) Consequently, the federal Constitution of 1789 contains the contracts clause, which forbids states from impairing contracts. (See Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and ‘Takings’ Clause Jurisprudence (1986) 60 So.Cal. L.Rev. 1, 21, fn. 86 [“Although debtor relief legislation was frequently enacted in the Confederation era, it was intensely opposed. It was among the chief motivations for the convening of the Philadelphia convention, and the Constitution drafted there was designed to eliminate such legislation through a variety of means.”].)
The second period of distress arose out of the panic of 1837, which prompted, in 1841, the Illinois state legislature to enact legislation severely restricting foreclosures. The legislation (1) gave debtors 12 months after any foreclosure sale to redeem the property; and (2) prevented any foreclosure sale in the first place unless the sale fetched at least two-thirds of the appraised value of the property. (See Bronson v. Kinzie (1843) 42 U.S. 311 (Bronson); Blaisdell, supra, 290 U.S. at p. 431.) In an opinion, the main theme of which is the interrelationship between contract rights and legal remedies to enforce those rights (see generally Bronson, supra, 42 U.S. at pp. 315-321), the Bronson court reasoned that the Illinois legislation had effectively destroyed the contract rights of the lender as regards a mortgage made in 1838. (See id. at p. 317 [“the obligation of the contract, and the rights of a party under it, may, in effect, be destroyed by denying a remedy altogether”].)
The third period of distress was, of course, the Great Depression of the 1930’s. In 1933, the Minnesota Legislature enacted a mortgage moratorium law that extended the period of redemption under Minnesota law until 1935. (See Blaisdell, supra, 290 U.S. at pp. 415-416.) But — and the high court majority found this significant — the law required debtors, in applying for an extension of the redemption period — to pay the reasonable value of the income of the property, or reasonable rental value if it didn’t produce income. (Id. at. pp. 416-417.) The legislation was famously upheld in Blaisdell. In distinguishing Bronson, the Blaisdell majority made the point that the statute did not substantively impair the debt the way the legislation in Bronson had: “The statute,” said the court, “does not impair the integrity of the mortgage indebtedness.” (Id. at p. 425.) The court went on to emphasize the need to pay the fair rental value of the property, which, it noted, was “the equivalent of possession during the extended period.”
Finally, the fourth period was within the living memory of many readers, namely, the extraordinary inflation and high interest rates of the late 1970’s. That period engendered Fidelity Federal Savings & Loan Association v. de la Cuesta (1982) 458 U.S. 141 (de la Cuesta). Many mortgages had (still have) what is known as a “due-on-sale” clause. As it played out in the 1970’s, the clause effectively required any buyer of a new home to obtain a new loan, but at the then-very high market interest rates. To circumvent the need for a new high rate mortgage, creative wrap-around financing was invented where a buyer would assume the obligation of the old mortgage, but that required the due-on-sale clause not be enforced.
An earlier decision of the California Supreme Court, Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, had encouraged this sort of creative financing by holding that due-on-sale clauses violated California state law as an unreasonable restraint on alienation. Despite that precedent, the trial judge in the de la Cuesta case (Edward J. Wallin, who would later join this court) held that regulations issued by the Federal Home Loan Bank Board, by the authority of the Home Owners’ Loan Act of 1933 preempted state law that invalidated due-on-sale clause. A California appellate court in the Fourth District (in an opinion by Justice Marcus Kaufman, who would later join the California Supreme Court) reversed the trial court. The United States Supreme Court, however, agreed with Judge Wallin’s determination, and reversed the appellate judgment and squarely held the state law to be preempted.
The de la Cuesta court observed that the bank board’s regulations were plain — “even” the California appellate court had been required to recognize that. (de la Cuesta, supra, 458 U.S. at p. 154). On top of the express preemption, Congress had expressed no intent to limit the bank board’s authority to “regulate the lending practices of federal savings and loans.” (Id. at p. 161.) Further, going into the history of the Home Owners’ Loan Act, the de la Cuesta court pointed out that “mortgage lending practices” are a “critical” aspect of a savings and loan’s “‘operation,'” and the Home Loan Bank Board had issued the due-on-sale regulations in order to protect the economic solvency of such lenders. (See id. at pp. 167-168.) In what is perhaps the most significant part of the rationale for our purposes, the bank board had concluded that “the due-on-sale clause is ‘an important part of the mortgage contract,'” consequently its elimination would have an adverse effect on the “financial stability” of federally chartered lenders. (Id. at p. 168.) For example, invalidation of the due-on-sale clause would make it hard for savings and loans “to sell their loans in the secondary markets.” (Ibid.)
With this history behind us, we now turn to the actual regulations at issue in the case before us.
2. The HOLA Regulations
Under the Home Owner’s Loan Act of 1933 (12 U.S.C. § 1461 et seq.) the federal Office of Thrift Supervision has issued section 560.2 of title 12 of the Code of Federal Regulations, a regulation that itself delineates what is a matter for federal regulation, and what is a matter for state law. Interestingly enough, section 560.2 is written in the form of examples, using the “ejusdem generis” approach of requiring a court to figure out what is, and what is not, in the same general class or category as the items given in the example.
On the preempted side, section 560.2 includes:
– “terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate” (§ 560.2(b)(4));
– “balance, payments due, or term to maturity of the loan” (§ 560.2(b)(4)); and, most importantly for this case,
– the “processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.” (§ 560.2(b)(10), italics added.)
On the other side, left for the state courts, is “Real property law.” (12 C.F.R. § 560.2(c)(2).)
We agree with the Mabrys that the process of foreclosure has traditionally been a matter of state real property law, a point both noted by the United States Supreme Court in BFP v. Resolution Trust Corp. (1994) 511 U.S. 531, 541-542, and academic commentators (e.g., Alexander, Federal Intervention in Real Estate Finance: Preemption and Federal Common Law (1993) 71 N.C. L. Rev. 293, 293 [“Historically, real property law has been the exclusive domain of the states.”]), including at least one law professor who laments that diverse state foreclosure laws tend to hinder efforts to achieve banking stability at the national level. (See Nelson, Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law (2010) 37 Pepperdine L.Rev. 583, 588-590 [noting that mortgage foreclosure law varies from state to state, and advocating federalization of mortgage foreclosure law].) By contrast, we have not been cited to anything in the federal regulations that govern such things as initiation of foreclosure, notice of foreclosure sales, allowable times until foreclosure, or redemption periods. (Though there are commentators, like Professor Nelson, who argue there should be.)
Given the traditional state control over mortgage foreclosure laws, it is logical to conclude that if the Office of Thrift Supervision wanted to include foreclosure as within the preempted category of loan servicing, it would have been explicit. Nothing prevented the office from simply adding the words “foreclosure of” to section 560.2(b)(10).
D. The Extent of Section 2923.5?
More Time and Only More Time
State law should be construed, whenever possible, to be in harmony with federal law, so as to avoid having the state law invalidated by federal preemption. (See Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 93; California Arco Distributors, Inc. v. Atlantic Richfield Co. (1984) 158 Cal.App.3d 349, 359.)
We emphasize that we are able to come to our conclusion that section 2923.5 is not preempted by federal banking regulations because it is, or can be construed to be, very narrow. As mentioned above, there is no right, for example, under the statute, to a loan modification.
A few more comments on the scope of the statute:
First, to the degree that the words “assess” and “explore” can be narrowly or expansively construed, they must be narrowly construed in order to avoid crossing the line from state foreclosure law into federally preempted loan servicing. Hence, any “assessment” must necessarily be simple — something on the order of, “why can’t you make your payments?” The statute cannot require the lender to consider a whole new loan application or take detailed loan application information over the phone. (Or, as is unlikely, in person.)
Second, the same goes for any “exploration” of options to avoid foreclosure. Exploration must necessarily be limited to merely telling the borrower the traditional ways that foreclosure can be avoided (e.g., deeds “in lieu,” workouts, or short sales), as distinct from requiring the lender to engage in a process that would be functionally indistinguishable from taking a loan application in the first place. In this regard, we note that section 2923.5 directs lenders to refer the borrower to “the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency.” The obvious implication of the statute’s referral clause is that the lender itself does not have any duty to become a loan counselor itself.
Finally, to the degree that the “assessment” or “exploration” requirements impose, in practice, burdens on federal savings banks that might arguably push the statute out of the permissible category of state foreclosure law and into the federally preempted category of loan servicing or loan making, evidence of such a burden is necessary before the argument can be persuasive. For the time being, and certainly on this record, we cannot say that section 2923.5, narrowly construed, strays over the line.
Given such a narrow construction, section 2923.5 does not, as the law in Blaisdell did not, affect the “integrity” of the basic debt. (Cf. Lopez v. World Savings & Loan Assn. (2003) 105 Cal.App.4th 729 [section 560.2 preempted state law that capped payoff demand statement fees].)
E. The Wording of the Declaration:
Okay If Not Under Penalty of Perjury
In addition to the substantive act of contacting the borrower, section 2923.5 requires a statement in the notice of default. The statement is found in subdivision (b), which we quote here: “(b) A notice of default filed pursuant to Section 2924 shall include a declaration that the mortgagee, beneficiary, or authorized agent has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required pursuant to subdivision (h).” (Italics added.)
The idea that this “declaration” must be made under oath must be rejected. First, ordinary English usage of the word “declaration” imports no requirement that it be under oath. In the Oxford English Dictionary, for example, numerous definitions of the word are found, none of which of require a statement under oath or penalty of perjury. In fact, the second legal definition given actually juxtaposes the idea of a declaration against the idea of a statement under oath: “A simple affirmation to be taken, in certain cases, instead of an oath or solemn affirmation.” (4 Oxford English Dict. (2d. ed. 1991) at p. 336.)
Second, even the venerable Black’s Law Dictionary doesn’t define “declaration” to necessarily be under oath. Its very first definition of the word is: “A formal statement, proclamation or announcement, esp. one embodied in an instrument.” (Black’s Law Dict. (9th ed. 2009) at p. 467.)
Third, if the Legislature wanted to say that the statement required in section 2923.5 must be under penalty of perjury, it knew how to do so. The words “penalty of perjury” are used in other laws governing mortgages. (E.g., § 2941.7, subdivision (b) [“The declaration provided for in this section shall be signed by the mortgagor or trustor under penalty of perjury.”].)
And, finally — back to our point about the inherent individual operation of the statute — the very structure of subdivision (b) belies any insertion of a penalty of perjury requirement. The way section 2923.5 is set up, too many people are necessarily involved in the process for any one person to likely be in the position where he or she could swear that all three requirements of the declaration required by subdivision (b) were met. We note, for example, that subdivision (a)(2) requires any one of three entities (a “mortgagee, beneficiary, or authorized agent”) to contact the borrower, and such entities may employ different people for that purpose. And the option under the statute of no contact being required (per subdivision (h) ) further involves individuals who would, in any commercial operation, probably be different from the people employed to do the contacting. For example, the person who would know that the borrower had surrendered the keys would in all likelihood be a different person than the legal officer who would know that the borrower had filed for bankruptcy.
The argument for requiring the declaration to be under penalty of perjury relies on section 2015.5 of the Code of Civil Procedure, but that reliance is misplaced. We quote all of section 2015.5 in the margin. Essentially the statute says if a statement in writing is required to be supported by sworn oath, making the statement under penalty of perjury will be sufficient. The key language is: “Whenever, under any law of this state . . . made pursuant to the law of this state, any matter is required . . . to be . . . evidenced . . . by the sworn . . . declaration . . . in writing of the person making the same . . . such matter may with like force and effect be . . . evidenced . . . by the unsworn . . . declaration . . . in writing of such person which recites that it is . . . declared by him or her to be true under penalty of perjury . . . .” (Italics added.) The section sheds no light on whether the declaration required in section 2923.5, subdivision (b) must be under penalty of perjury.
F. The Wording of the Declaration:
Okay If It Tracks the Statute
In light of what we have just said about the multiplicity of persons who would necessarily have to sign off on the precise category in subdivision (b) of the statute that would apply in order to proceed with foreclosure (contact by phone, contact in person, unsuccessful attempts at contact by phone or in person, bankruptcy, borrower hiring a foreclosure consultant, surrender of keys), and the possibility that such persons might be employees of not less than three entities (mortgagee, beneficiary, or authorized agent), there is no way we can divine an intention on the part of the Legislature that each notice of foreclosure be custom drafted.
To which we add this important point: By construing the notice requirement of section 2923.5, subdivision (b), to require only that the notice track the language of the statute itself, we avoid the problem of the imposition of costs beyond the minimum costs now required by our reading of the statute.
G. Noncompliance Before Foreclosure
Sale Affect Title After Foreclosure Sale? No
A primary reason for California’s comprehensive regulation of foreclosure in the Civil Code is to ensure stability of title after a trustee’s sale. (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1249-1250 [“comprehensive statutory scheme” governing foreclosure has three purposes, one of which is “to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser” (internal quotations omitted)].)
There is nothing in section 2923.5 that even hints that noncompliance with the statute would cause any cloud on title after an otherwise properly conducted foreclosure sale. We would merely note that under the plain language of section 2923.5, read in conjunction with section 2924g, the only remedy provided is a postponement of the sale before it happens.
H. Lender Compliance in This Case?
Somebody is Not Telling the Truth
and It’s the Trial Court’s Job to
Determine Who It Is
We have already recounted the conflict in the evidence before the trial court regarding whether there was compliance with section 2923.5. Rarely, in fact, are stories so diametrically opposite: According to the Mabrys, there was no contact at all. According to Aurora, not only were there numerous contacts, but the Mabrys even initiated a proposal by which their attorney would buy the property.
Somebody’s not telling the truth, but appellate courts do not resolve conflicts in evidence. Trial courts do. (Butt v. State of California (1992) 4 Cal.4th 668, 697, fn. 23 [“Moreover, Diaz and Bezemek concede the proffered evidence is disputed; appellate courts will not resolve such factual conflicts.”].) This case will obviously have to be remanded for an evidentiary hearing.
I. Is This Case Suitable for
Class Action Treatment? No
As we have seen, section 2923.5 contemplates highly-individuated facts. One borrower might not pick up the telephone, one lender might only call at the same time each day in violation of the statute, one lender might (incorrectly) try to get away with a form letter, one borrower might, like the old Twilight Zone “pitchman” episode, try to keep the caller on the line but change the subject and talk about anything but alternatives to foreclosure, one borrower might, as Aurora asserts here, try to have his or her attorney do a deal that avoids foreclosure, etcetera.
In short, how in the world would a court certify a class? Consider that in this case, there is even a dispute over the basic facts as to whether the lender attempted to comply at all. We do not have, under these facts at least, a question of a clean, systematic policy on the part of a lender that might be amenable to a class action (or perhaps enforcement by the Attorney General). This case is not one, to be blunt, where the lender admits that it simply ignored the statute and proceeded on the theory that federal law had preempted it. We express no opinion as to any scenario where a lender simply ignored the statute wholesale — that sort of scenario is why we do not preclude, a priori, class actions and have not expressed an opinion as to whether the Attorney General or a private party in such a situation might indeed seek to enforce section 2923.5 in a class action.
Consequently, while we must grant the writ petition so as to allow the Mabrys a hearing on the factual merits of compliance, we deny it insofar as it seeks reinstatement of any claims qua class action. By the same token, in light of the limited right to time conferred under section 2923.5, we also deny the writ petition insofar as it seeks reinstatement of any claim for money damages.
IV. CONCLUSION
Let a writ issue instructing the trial court to decide whether or not Aurora complied with section 2923.5. To the degree that the trial court’s order precludes the assertion of any class action claims, we deny the writ. If the trial court finds that Aurora has complied with section 2923.5, foreclosure may proceed. If not, it shall be postponed until Aurora files a new notice of default in the wake of substantive compliance with section 2923.5.
Given that this writ petition is granted in part and denied in part, each side will bear its own costs in this proceeding.

SILLS, P. J.
WE CONCUR:

ARONSON, J.

IKOLA, J.

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Tags: stop foreclosure, Mortgage modification, mortgage meltdown, Foreclosure, 2923.5

Categories : 2923.5, 2923.6, Foreclosure

Latest on MERS and “possession of the Note”

3 04 2010

There is a great case re MERS’ authority to operate in CA since it is NOT registered to do business. The case is Champlaie. It
states that MERS is not a foreign lending institution, nor is it creating evidences.

The case is also interesting since it discusses why those who foreclose do not have to be in possession of the promissory note.Here are three paragraphs below from the court, although they are taken from different pages.
It is not helpful for us but the court does question why those who foreclose do not have to be in possession of the note.

“Several courts have held that this language demonstrates that possession of the note is not required, apparently concluding that the statute authorizes initiation of foreclosure by parties who would not be expected to possess the
note. See, e.g., Spencer v. DHI Mortg. Co., No. 09-0925, 2009 U.S. Dist. LEXIS 55191, *23-*24, 2009 WL 1930161 (E.D. Cal. June 30, 2009) (O’Neill, J.).
However, the precise reasoning of these cases is unclear.FN14″

“To say that a trustee’s duties are strictly limited does not appear to this court to preclude possession of the note as a prerequisite to foreclosure. On the other hand, perhaps it is not unreasonable to suggest that such a prerequisite imposes a nonstatutory duty.”

“At some point, however, the opinion of a large number of decisions, while not in a sense binding, are by virtue of the sheer number, determinative. I cannot conclude that the result reached by the district courts is unreasonable or does not accord with the law. I further note that this conclusion is not obviously at odds with the policies underlying the California statutes. The apparent purpose
of requiring possession of a negotiable instrument is to avoid fraud. In the context of non-judicial foreclosures, however, the danger of fraud is minimized by the requirement that the deed of trust be recorded, as must be any assignment or substitution of the parties thereto. While it may be that requiring production of the note would have done something to limit the mischief that led to the economic pain the nation has suffered, the great weight of authority has reasonably concluded that California law does not impose this requirement.”

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Categories : 2923.5, Foreclosure, I Have a Plan, mortgage meltdown, pedatory lending, stop foreclosure

Latest ruling on Civil Code 2923.5

26 02 2010

B. Perata Mortgage Relief Act, Cal. Civ. Code § 2923.5

Plaintiffs’ second cause of action arises under the Perata Mortgage Relief Act, Cal. Civ. Code § 2923.5. Plaintiffs argue U.S. Bank is liable for monetary damages under this provision because it “failed and refused to explore” “alternatives to the drastic remedy of foreclosure, such as loan modifications” before initiating foreclosure proceedings. (FAC PP 17-18.) Furthermore, Plaintiffs allege U.S. Bank violated Cal. Civ. Code § 2923.5(c) by failing to include with the notice of sale a declaration that it contacted the borrower to explore such options. (Opp’n at 6.)

Section 2923.5(a)(2) requires a “mortgagee, beneficiary or authorized agent” to “contact the borrower in person or by telephone in order to assess the borrower’s [*1166] financial situation and explore options for the borrower to avoid foreclosure.” For a lender which had recorded a notice of default prior to the effective date of the statute, as is the case here, § 2923.5(c) imposes a duty to attempt to negotiate with a borrower before recording a notice of sale. These provisions cover loans initiated between January 1, 2003 and December 31, 2007. Cal. Civ. Code § 2923.5(h)(3), (i).

U.S. Bank’s primary argument is that Plaintiffs’ claim should be dismissed because neither § 2923.5 nor its legislative history clearly indicate an intent to create a private right of action. (Mot. at 8.) Plaintiffs counter that such a conclusion is unsupported by the legislative history; the California legislature would not have enacted this “urgency” legislation, intended to curb high foreclosure rates in the state, without any accompanying enforcement mechanism. (Opp’n at 5.) The court agrees with Plaintiffs. While the Ninth Circuit has yet to address this issue, the court found no decision from this circuit [**15] where a § 2923.5 claim had been dismissed on the basis advanced by U.S. Bank. See, e.g. Gentsch v. Ownit Mortgage Solutions Inc., 2009 U.S. Dist. LEXIS 45163, 2009 WL 1390843, at *6 (E.D. Cal., May 14, 2009)(addressing merits of claim); Lee v. First Franklin Fin. Corp., 2009 U.S. Dist. LEXIS 44461, 2009 WL 1371740, at *1 (E.D. Cal., May 15, 2009) (addressing evidentiary support for claim).

On the other hand, the statute does not require a lender to actually modify a defaulting borrower’s loan but rather requires only contacts or attempted contacts in a good faith effort to prevent foreclosure. Cal. Civ. Code § 2923.5(a)(2). Plaintiffs allege only that U.S. Bank “failed and refused to explore such alternatives” but do not allege whether they were contacted or not. (FAC P 18.) Plaintiffs’ use of the phrase “refused to explore,” combined with the “Declaration of Compliance” accompanying the Notice of Trustee’s Sale, imply Plaintiffs were contacted as required by the statute. (Doc. No. 7-2, Exh. 4 at 3.) Because Plaintiffs have failed to state a claim under Cal. Civ. Code § 2923.5, U.S. Bank’s motion to dismiss is granted. Plaintiffs’ claim is dismissed without prejudice.

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Categories : 2923.5, 2924, Foreclosure, Mortgage modification, Predatory Lending, mortgage meltdown

SB 94 and its interferance with the practice

5 09 2009

CA SB 94 on Lawyers & Loan Modifications Passes Assembly… 62-10

The California Assembly has passed Senate Bill 94, a bill that seeks to protect homeowners from loan modification scammers, but could end up having the unintended consequence of eliminating a homeowner’s ability to retain an attorney to help them save their home from foreclosure.

The bill, which has an “urgency clause” attached to it, now must pass the State Senate, and if passed, could be signed by the Governor on October 11th, and go into effect immediately thereafter.

SB 94’s author is California State Senator Ron Calderon, the Chair of the Senate Banking Committee, which shouldn’t come as much of a surprise to anyone familiar with the bigger picture. Sen. Calderon, while acknowledging that fee-for-service providers can provide valuable services to homeowners at risk of foreclosure, authored SB 94 to ensure that providers of these services are not compensated until the contracted services have been performed.

SB 94 prevents companies, individuals… and even attorneys… from receiving fees or any other form of compensation until after the contracted services have been rendered. The bill will now go to the Democratic controlled Senate where it is expected to pass.

Supporters of the bill say that the state is literally teeming with con artists who take advantage of homeowners desperate to save their homes from foreclosure by charging hefty fees up front and then failing to deliver anything of value in return. They say that by making it illegal to charge up front fees, they will be protecting consumers from being scammed.

While there’s no question that there have been some unscrupulous people that have taken advantage of homeowners in distress, the number of these scammers is unclear. Now that we’ve learned that lenders and servicers have only modified an average of 9% of qualified mortgages under the Obama plan, it’s hard to tell which companies were scamming and which were made to look like scams by the servicers and lenders who failed to live up to their agreement with the federal government.

In fact, ever since it’s come to light that mortgage servicers have been sued hundreds of times, that they continue to violate the HAMP provisions, that they foreclose when they’re not supposed to, charge up front fees for modifications, require homeowners to sign waivers, and so much more, who can be sure who the scammers really are. Bank of America, for example, got the worst grade of any bank on the President’s report card listing, modifying only 4% of the eligible mortgages since the plan began. We’ve given B of A something like $200 billion and they still claim that they’re having a hard time answering the phones over there, so who’s scamming who?

To make matters worse, and in the spirit of Y2K, the media has fanned the flames of irrationality with stories of people losing their homes as a result of someone failing to get their loan modified. The stories go something like this:

We gave them 1,000. They told us to stop making our mortgage payment. They promised us a principal reduction. We didn’t hear from them for months. And then we lost our house.

I am so sure. Can that even happen? I own a house or two. Walk me through how that happened again, because I absolutely guarantee you… no way could those things happen to me and I end up losing my house over it. Not a chance in the world. I’m not saying I couldn’t lose a house, but it sure as heck would take a damn sight more than that to make it happen.

Depending on how you read the language in the bill, it may prevent licensed California attorneys from requiring a retainer in advance of services being rendered, and this could essentially eliminate a homeowner’s ability to hire a lawyer to help save their home.

Supporters, on the other hand, respond that homeowners will still be able to hire attorneys, but that the attorneys will now have to wait until after services have been rendered before being paid for their services. They say that attorneys, just like real estate agents and mortgage brokers, will now only be able to receive compensation after services have been rendered.

But, assuming they’re talking about at the end of the transaction, there are key differences. Real estate agents and mortgage brokers are paid OUT OF ESCROW at the end of a transaction. They don’t send clients a bill for their services after the property is sold.

Homeowners at risk of foreclosure are having trouble paying their bills and for the most part, their credit ratings have suffered as a result. If an attorney were to represent a homeowner seeking a loan modification, and then bill for his or her services after the loan was modified, the attorney would be nothing more than an unsecured creditor of a homeowner who’s only marginally credit worthy at best. If the homeowner didn’t pay the bill, the attorney would have no recourse other than to sue the homeowner in Small Claims Court where they would likely receive small payments over time if lucky.

Extending unsecured credit to homeowners that are already struggling to pay their bills, and then having to sue them in order to collect simply isn’t a business model that attorneys, or anyone else for that matter, are likely to embrace. In fact, the more than 50 California attorneys involved in loan modifications that I contacted to ask about this issue all confirmed that they would not represent homeowners on that basis.

One attorney, who asked not to be identified, said: “Getting a lender or servicer to agree to a loan modification takes months, sometimes six or nine months. If I worked on behalf of homeowners for six or nine months and then didn’t get paid by a number of them, it wouldn’t be very long before I’d have to close my doors. No lawyer is going to do that kind of work without any security and anyone who thinks they will, simply isn’t familiar with what’s involved.”

“I don’t think there’s any question that SB 94 will make it almost impossible for a homeowner to obtain legal representation related to loan modifications,” explained another attorney who also asked not to be identified. “The banks have fought lawyers helping clients through the loan modification process every step of the way, so I’m not surprised they’ve pushed for this legislation to pass.”

Proponents of the legislation recite the all too familiar mantra about there being so many scammers out there that the state has no choice but to move to shut down any one offering to help homeowners secure loan modifications that charges a fee for the services. They point out that consumers can just call their banks directly, or that there are nonprofit organizations throughout the state that can help homeowners with loan modifications.

While the latter is certainly true, it’s only further evidence that there exists a group of people in positions of influence that are unfamiliar , or at the very least not adequately familiar with obtaining a loan modification through a nonprofit organization, and they’ve certainly never tried calling a bank directly.

The fact that there are nonprofit housing counselors available, and the degree to which they may or may not be able to assist a given homeowner, is irrelevant. Homeowners are well aware of the nonprofit options available. They are also aware that they can call their banks directly. From the President of the United States and and U.S. Attorney General to the community newspapers found in every small town in America, homeowners have heard the fairy tales about about these options, and they’ve tried them… over and over again, often times for many months. When they didn’t get the desired results, they hired a firm to help them.

Yet, even the State Bar of California is supporting SB 94, and even AB 764, a California Assembly variation on the theme, and one even more draconian because of its requirement that attorneys only be allowed to bill a client after a successful loan modification has been obtained. That means that an attorney would have to guarantee a homeowner that he or she would obtain a modification agreement from a lender or servicer or not get paid for trying. Absurd on so many levels. Frankly, if AB 764 passes, would the last one out of California please turn off the lights and bring the flag.

As of late July, the California State Bar said it was investigating 391 complaints against 141 attorneys, as opposed to nine investigations related to loan modifications in 2008. The Bar hasn’t read anywhere all of the complaints its received, but you don’t have to be a statistician to figure out that there’s more to the complaints that meets the eye. So far the State Bar has taken action against three attorneys and the Attorney General another four… so, let’s see… carry the 3… that’s 7 lawyers. Two or three more and they could have a softball team.

At the federal level they’re still reporting the same numbers they were last spring. Closed 11… sent 71 letters… blah, blah, blah… we’ve got a country of 300 million and at least 5 million are in trouble on their mortgage. The simple fact is, they’re going to have to come up with some serious numbers before I’m going to be scared of bumping into a scammer on every corner.

Looking Ahead…

California’s ALT-A and Option ARM mortgages are just beginning to re-set, causing payments to rise, and with almost half of the mortgages in California already underwater, these homeowners will be unable to refinance and foreclosures will increase as a result. Prime jumbo foreclosure rates are already up a mind blowing 634% as compared with January 2008 levels, according to LPS Applied Analytics.

Clearly, if SB 94 ends up reducing the number of legitimate firms available for homeowners to turn to, everyone involved in its passage is going to be retiring. While many sub-prime borrowers have suffered silently through this horror show of a housing crisis, the ALT-A and Option ARM borrowers are highly unlikely to slip quietly into the night.

There are a couple of things about the latest version of SB 94 that I found interesting:

1. It says that a lawyer can’t collect a fee or any other compensation before serivces have been delivered, but it doesn’t make clear whether attorneys can ask the client to deposit funds in the law firm’s trust account and then bill against thsoe funds as amounts are earned. Funds deposited in a law firm trust account remain the client’s funds, so they’re not a lawyer’s “fees or other compensation”. Those funds are there so that when the fees have been earned, the lawyer doesn’t have to hope his or her bill gets paid. Of course, it also says that an attorney can’t hold any security interest, but money in a trust account a client’s money, the attorney has no lien against it. All of this is a matter of interpretation, of course, so who knows.

2. While there used to be language in both the real estate and lawyer sections that prohibited breaking up services related to a loan modification, in the latest version all of the language related to breaking up services as applied to attorneys has been eliminated. It still applies to real estate licensed firms, but not to attorneys. This may be a good thing, as at least a lawyer could complete sections of the work involved as opposed to having to wait until the very end, which the way the banks have been handling things, could be nine months away.

3. The bill says nothing about the amounts that may be charged for services in connection with a loan modification. So, in the case of an attorney, that would seem to mean that… well, you can put one, two and three together from there.

4. Lawyers are not included in definition of foreclosure consultant. And there is a requirement that new language be inserted in contracts, along the lines of “You don’t have to pay anyone to get a loan modification… blah, blah, blah.” Like that will be news to any homeowner in America. I’ve spoken with hundreds and never ran across one who didn’t try it themselves before calling a lawyer. I realize the Attorney General doesn’t seem to know that, but look… he’s been busy.

Conclusion…

Will SB 94 actually stop con artists from taking advantage of homeowners in distress? Or will it end up only stopping reputable lawyers from helping homeowners, while foreclosures increase and our economy continues its deflationary free fall? Will the California State Bar ever finishing reading the complaints being received, and if they ever do, will they understand what they’ve read. Or is our destiny that the masses won’t understand what’s happening around them until it sucks them under as well.

I surely hope not. But for now, I’m just hoping people can still a hire an attorney next week to help save their homes, because if they can’t… the Bar is going to get a lot more letters from unhappy homeowners.

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Tags: 2923.5, 2923.6, 2924, bailout, bankruptcy, borrower, brad keiser, Cramdown, credit, credit crisis, depression, eviction, FDG, Federal Bailout, Foreclosure, foreclosure defense, Foreclosure Defense Group, foreclosure offense, foreclosures, Fraud, HAMP, I Have a Plan, lawyers, Lender Liability, lis pendence, Loan Mod, LOAN MODIFICATION, lost note, Mortgage, Mortgage modification, Predatory Lending, quiet title, Real Estate Settlement Procedures Act, Recoupment, rescission, respa, RICO, stop foreclosure, tila, TILA audit, truth in lending Audit

Categories : 2923.5, 2923.6, 2924, Cramdown, FCRA, Foreclosure, I Have a Plan, Lender Class action, Loan Audit, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, United First, bankruptcy, eviction, lis pendence, mortgage meltdown, pedatory lending, respa, stop foreclosure, tila, truth in lending, usury

Don’t get HAMP ED out of your home!

5 09 2009

By Walter Hackett, Esq.
The federal government has trumpeted its Home Affordable Modification Program or “HAMP” solution as THE solution to runaway foreclosures – few things could be further from the truth. Under HAMP a homeowner will be offered a “workout” that can result in the homeowner being “worked out” of his or her home. Here’s how it works. A participating lender or servicer will send a distressed homeowner a HAMP workout agreement. The agreement consists of an “offer” pursuant to which the homeowner is permitted to remit partial or half of their regular monthly payments for 3 or more months. The required payments are NOT reduced, instead the partial payments are placed into a suspense account. In many cases once enough is gathered to pay the oldest payment due the funds are removed from the suspense account and applied to the mortgage loan. At the end of the trial period the homeowner will be further behind than when they started the “workout” plan.
In California, the agreements clearly specify the acceptance of partial payments by the lender or servicer does NOT cure any default. Further, the fact a homeowner is in the workout program does NOT require the lender or servicer to suspend or postpone any non-judicial foreclosure activity with the possible exception of an actual trustee’s sale. A homeowner could complete the workout plan and be faced with an imminent trustee’s sale. Worse, if a homeowner performs EXACTLY as required by the workout agreement, they are NOT assured a loan modification. Instead the agreement will include vague statements that the homeowner MAY receive an offer to modify his or her loan however there is NO duty on the part of the servicer or lender to modify a loan regardless of the homeowner’s compliance with the agreement.

A homeowner who fully performs under a HAMP workout is all but guaranteed to have given away thousands of dollars with NO assurance of keeping his or her home or ever seeing anything resembling an offer to modify a mortgage loan.
While it may well be the case the government was making an honest effort to help, the reality is the HAMP program is only guaranteed to help those who need help least – lenders and servicers. If you receive ANY written offer to modify your loan meet with a REAL licensed attorney and ask them to review the agreement to determine what you are REALLY agreeing to, the home you save might be your own.

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Tags: Audit, bailout, bankruptcy, borrower, brad keiser, credit, credit crisis, depression, FDG, Federal Bailout, foreclosure defense, Foreclosure Defense Group, foreclosure offense, foreclosures, Fraud, HAMP, lawyers, Lender Liability, Loan Mod, LOAN MODIFICATION, lost note, Mortgage, quiet title, rescission, respa, RICO, TILA audit

Categories : 2923.5, 2923.6, 2924, Cramdown, Foreclosure, I Have a Plan, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, bankruptcy, eviction, lis pendence, stop foreclosure, tila, truth in lending

Countrywide complaint

27 06 2009

countrywide_fin_class_action_defense_mdl

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Tags: 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stay of eviction2923.5, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, pedatory lending, respa, stop foreclosure

Homecomings TILA complaint GMAC

27 06 2009

homecomingstila

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, Foreclosure, I Have a Plan, Lender Class action, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, bankruptcy, eviction, lis pendence, stop foreclosure, usury

Leman Tila complaint

27 06 2009

Lemantilacomp

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, bankruptcy, eviction, stop foreclosure, truth in lending

Lender class action

27 06 2009

Mortgageinvestorgroupclass

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, Loan Audit, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, bankruptcy, eviction, lis pendence, mortgage meltdown, stop foreclosure, usury

Option One Complaint Pick a payment lawsuit

27 06 2009

optionone

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, Foreclosure, I Have a Plan, Lender Class action, Predatory Lending, Real Estate Settlement Procedures Act, bankruptcy, eviction, lis pendence, mortgage meltdown, stop foreclosure, usury

Win the eviction by Summary judgement

27 06 2009

When title to the property is still in dispute ie. the foreclosure was bad. They (the lender)did not comply with California civil code 2923.5 or 2923.6 or 2924. Or the didn’t possess the documents to foreclose ie. the original note. Or they did not possess a proper assignment 2932.5. at trial you will be ignored by the learned judge but if you file a Motion for Summary Judgmentevans sum ud
template notice of Motion for SJ
TEMPLATE Points and A for SJ Motion
templateDeclaration for SJ
TEMPLATEProposed Order on Motion for SJ
TEMPLATEStatement of Undisputed Facts
you can force the issue and if there is a case filed in the Unlimited jurisdiction Court the judge may be forced to consider title and or consolidate the case with the Unlimited Jurisdiction Case2nd amended complaint (e) manuel
BAKER original complaint (b)
Countrywide Complaint Form
FRAUDULENT OMISSIONS FORM FINAL
sample-bank-final-complaint1-2.docx

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Tags: 2923.5, 2923.6, 2924, 2932.5, civil code 2923.5, eviction, Foreclosure, Fraud, lis pendence

Categories : 2923.5, 2923.6, Foreclosure, I Have a Plan, Predatory Lending, Real Estate Settlement Procedures Act, eviction, stop foreclosure, truth in lending

What is worse bankruptcy or foreclosure?

25 06 2009

So what is worse, bankruptcy or foreclosure? Which will have the biggest impact on my credit score? Both bankruptcy and foreclosure will have serious negative affects on your personal credit report and your credit score as well. With re-established credit after a bankruptcy and/or foreclosure you can possibly qualify for a good mortgage once again in as little as 24 months. Therefore, it is very difficult to say one is worse than the other, but the bottom line is that they are both very bad for you and should be avoided if all possible.

Foreclosure is worse then bankruptcy because you are actually losing something of value, your home. Once you are in foreclosure you will lose any and all equity in your home. If there is no equity in the home you will be responsible for the remaining balance after the property auction. With chapter 7 bankruptcy all of your unsecured debts are erased and you start over and in most cases you will not lose anything other then your credit rating.

Many times qualifying for a mortgage after a foreclosure is more difficult than applying for a home after a bankruptcy. With that said, that could possibly lead you to believe that foreclosure is worse than bankruptcy. Most people who have a home foreclosed upon end up filing bankruptcy as well.

Bankruptcy and Foreclosure filings are public records, however no one would know about your proceedings under normal circumstances. The Credit Bureaus will record your bankruptcy and a foreclosure. Bankruptcies will remain on your credit record for 10 years while foreclosures can stay on your report for up to 7 years.

In some cases, one can refinance out of a Chapter 13 Bankruptcy with a 12 month trustee payment history and a timely mortgage history. It is much more difficult to obtain financing with a foreclosure on your record.

Foreclosure is worse because of the loss of value. You will not receive any compensation for the equity in your home if it proceeds to foreclosure.

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, Cramdown, Foreclosure, I Have a Plan, eviction, stop foreclosure

Standing argument

7 06 2009

judge-youngs-decision-on-nosek

Ameriquest’s final argument, that the sanctions are a
criminal penalty, is bereft of authority. Ameriquest cites F.J.
Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 244
F.3d 1128 (9th Cir. 2001), a case about inherent powers – not
Rule 11 –

This is an excerpt from the decision just this bloggers note the Hanshaw Case was my case. I argued this case at the 9th circuit court of appeals

http://openjurist.org/244/f3d/1128/fj-v-emerald fj-v-emerald

If you will grasp the implications of this judge-youngs-decision-on-nosekdecision all or most all the evictions and foreclosures are being litigated by the wrong parties that is to say parties who have no real stake in the outcome. they are merely servicers not the real investors. They do not have the right to foreclose or evict. No assignment No note No security interest No standing They do not want to be listed anywhere. They (the lenders) have caused the greatest damage to the American Citizen since the great depression and they do not want to be exposed or named in countless lawsuits. Time and time again I get from the judges in demurer hearings ” I see what you are saying counsel but your claim does not appear to be against this defendant” the unnamed investment pool of the Lehman Brothers shared High yield equity Fund trustee does not exist and so far can’t be sued.

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending 2923.5, truth in lending, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, Cramdown, Foreclosure, I Have a Plan, Loan Audit, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, bankruptcy, eviction, respa, stop foreclosure

Using the countrywide complaint in your own case

9 05 2009

Using the countrywide complaint in your own casecounrtrywidelanderscomplaintand countrywidelanders and word versionsCountrywide attorney general Complaint Form and templetsCountrywide Complaint Form

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Tags: 2923.5, 2932.5, civil code 2923.5, Foreclosure, Predatory Lending, stop foreclosure, truth in lending 2923.5

Categories : 2923.5, 2923.6, Foreclosure, I Have a Plan

Coalition sues lenders

9 05 2009

Coalition Sues lenders

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, Lender Class action, Loan Audit, bankruptcy, eviction, lis pendence, pedatory lending

They are to give options to foreclosure 2923.5

9 05 2009

(a) (1) A mortgagee, trustee, beneficiary, or authorized

agent may not file a notice of default pursuant to Section 2924 until

30 days after contact is made as required by paragraph (2) or 30

days after satisfying the due diligence requirements as described in

subdivision (g).

(2) A mortgagee, beneficiary, or authorized agent shall contact

the borrower in person (and this does not mean agent for the foreclosure company) or by telephone in order to assess the

borrower’s financial situation and explore options for the borrower

to avoid foreclosure. During the initial contact, the mortgagee,

beneficiary, or authorized agent shall advise the borrower that he or

she has the right to request a subsequent meeting and, if requested,

the mortgagee, beneficiary, or authorized agent shall schedule the

meeting to occur within 14 days. The assessment of the borrower’s

financial situation and discussion of options may occur during the

first contact, or at the subsequent meeting scheduled for that

purpose. In either case, the borrower shall be provided the toll-free

telephone number made available by the United States Department of

Housing and Urban Development (HUD) to find a HUD-certified housing

counseling agency. Any meeting may occur telephonically.

(b) A notice of default filed pursuant to Section 2924 shall

include a declaration from the mortgagee, beneficiary, or authorized

agent that it has contacted the borrower, tried with due diligence to

contact the borrower as required by this section, or the borrower

has surrendered the property to the mortgagee, trustee, beneficiary,

or authorized agent.

already filed the notice of default prior to the enactment of this

section and did not subsequently file a notice of rescission, then

the mortgagee, trustee, beneficiary, or authorized agent shall, as

part of the notice of sale filed pursuant to Section 2924f, include a

declaration that either:

(1) States that the borrower was contacted to assess the borrower’

s financial situation and to explore options for the borrower to

avoid foreclosure.

(2) Lists the efforts made, if any, to contact the borrower in the

event no contact was made.

(d) A mortgagee’s, beneficiary’s, or authorized agent’s loss

mitigation personnel may participate by telephone during any contact

required by this section.

(e) For purposes of this section, a “borrower” shall include a

mortgagor or trustor.

(f) A borrower may designate a HUD-certified housing counseling

agency, attorney, or other advisor to discuss with the mortgagee,

beneficiary, or authorized agent, on the borrower’s behalf, options

for the borrower to avoid foreclosure. That contact made at the

direction of the borrower shall satisfy the contact requirements of

paragraph (2) of subdivision (a). Any loan modification or workout

plan offered at the meeting by the mortgagee, beneficiary, or

authorized agent is subject to approval by the borrower.

(g) A notice of default may be filed pursuant to Section 2924 when

a mortgagee, beneficiary, or authorized agent has not contacted a

borrower as required by paragraph (2) of subdivision (a) provided

that the failure to contact the borrower occurred despite the due

diligence of the mortgagee, beneficiary, or authorized agent. For

purposes of this section, “due diligence” shall require and mean all

of the following:

(1) A mortgagee, beneficiary, or authorized agent shall first

attempt to contact a borrower by sending a first-class letter that

includes the toll-free telephone number made available by HUD to find

a HUD-certified housing counseling agency.

(2) (A) After the letter has been sent, the mortgagee,

beneficiary, or authorized agent shall attempt to contact the

borrower by telephone at least three times at different hours and on

different days. Telephone calls shall be made to the primary

telephone number on file.

(B) A mortgagee, beneficiary, or authorized agent may attempt to

contact a borrower using an automated system to dial borrowers,

provided that, if the telephone call is answered, the call is

connected to a live representative of the mortgagee, beneficiary, or

authorized agent.

telephone contact requirements of this paragraph if it determines,

after attempting contact pursuant to this paragraph, that the

borrower’s primary telephone number and secondary telephone number or

numbers on file, if any, have been disconnected.

(3) If the borrower does not respond within two weeks after the

telephone call requirements of paragraph (2) have been satisfied, the

mortgagee, beneficiary, or authorized agent shall then send a

certified letter, with return receipt requested.

(4) The mortgagee, beneficiary, or authorized agent shall provide

a means for the borrower to contact it in a timely manner, including

a toll-free telephone number that will provide access to a live

representative during business hours.

(5) The mortgagee, beneficiary, or authorized agent has posted a

prominent link on the homepage of its Internet Web site, if any, to

the following information:

(A) Options that may be available to borrowers who are unable to

afford their mortgage payments and who wish to avoid foreclosure, and

instructions to borrowers advising them on steps to take to explore

those options.

(B) A list of financial documents borrowers should collect and be

prepared to present to the mortgagee, beneficiary, or authorized

agent when discussing options for avoiding foreclosure.

options for avoiding foreclosure with their mortgagee, beneficiary,

or authorized agent.

(D) The toll-free telephone number made available by HUD to find a

HUD-certified housing counseling agency.

(h) Subdivisions (a), (c), and (g) shall not apply if any of the

following occurs:

(1) The borrower has surrendered the property as evidenced by

either a letter confirming the surrender or delivery of the keys to

the property to the mortgagee, trustee, beneficiary, or authorized

agent.

(2) The borrower has contracted with an organization, person, or

entity whose primary business is advising people who have decided to

leave their homes on how to extend the foreclosure process and avoid

their contractual obligations to mortgagees or beneficiaries.

(3) The borrower has filed for bankruptcy, and the proceedings

have not been finalized.

(i) This section shall apply only to loans made from January 1,

2003, to December 31, 2007, inclusive, that are secured by

residential real property and are for owner-occupied residences. For

purposes of this subdivision, “owner-occupied” means that the

residence is the principal residence of the borrower.

(j) This section shall remain in effect only until January 1, 2013,

and as of that date is repealed, unless a later enacted statute,

that is enacted before January 1, 2013, deletes or extends that da

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, I Have a Plan, Predatory Lending, respa, stop foreclosure

Doan on “produce the Note”

3 05 2009

Are Courts in California Truly Limited by Non-Judicial Foreclosure Statutes?

By Michael Doan on May 2, 2009 in Foreclosure Defense, Foreclosure News

Recently, many California Courts have been dismissing lawsuits filed to stop non-judicial foreclosures, ruling that the non-judicial foreclosure statutes occupy the field and are exclusive as long as they are complied with. Thus, in the case where a notice of default is recorded and a lawsuit then filed in response to stop the foreclosure since the foreclosing party does not possess the underlying note, all too often the Court will simply dismiss the case and claim “2924 has no requirement to produce the note.”

Thus, these Courts view the statutes that regulate non-judicial foreclosures as all inclusive of all the requirements and remedies in foreclosure proceedings. Indeed, California Civil Code sections 2924 through 2924k provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust. This comprehensive statutory scheme has three purposes: ‘”(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser.” [Citations.]’ [Citation.]” (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1249–1250 [26 Cal. Rptr. 3d 413].)

Notwithstanding, the foreclosure statutes are not exclusive. If someone commits murder during an auction taking place under Civil Code 2924, that does not automatically mean they are immune from criminal and civil liability. Perhaps this is where some of these courts are “missing the boat.”

For example, in Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226, 1231 [44 Cal. Rptr. 2d 352, 900 P.2d 601], the California Supreme Court concluded that a lender who obtained the property with a full credit bid at a foreclosure sale was not precluded from suing a third party who had fraudulently induced it to make the loan. The court concluded that ” ‘the antideficiency laws were not intended to immunize wrongdoers from the consequences of their fraudulent acts’ ” and that, if the court applies a proper measure of damages, ” ‘fraud suits do not frustrate the antideficiency policies because there should be no double recovery for the beneficiary.’ ” (Id. at p. 1238.)

Likewise, in South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. [*1071] (1999) 72 Cal.App.4th 1111, 1121 [85 Cal. Rptr. 2d 647], the court held that a junior lienor retains the right to recover damages from the trustee and the beneficiary of the foreclosing lien if there have been material irregularities in the conduct of the foreclosure sale. (See also Melendrez v. D & I Investment, Inc., supra, 127 Cal.App.4th at pp. 1257–1258; Lo v. Jensen (2001) 88 Cal.App.4th 1093, 1095 [106 Cal. Rptr. 2d 443] [a trustee’s sale tainted by fraud may be set aside].)

In looking past the comprehensive statutory framework, these other Courts also considered the policies advanced by the statutory scheme, and whether those policies would be frustrated by other laws. Recently, in the case of California Golf, L.L.C. v. Cooper, 163 Cal. App. 4th 1053, 78 Cal. Rptr. 3d 153, 2008 Cal. App. LEXIS 850 (Cal. App. 2d Dist. 2008), the Appellate Court held that the remedies of 2924h were not exclusive. Of greater importance is that the Appellate Court reversed the lower court and specifically held that provisions in UCC Article 3 were allowed in the foreclosure context:

Considering the policy interests advanced by the statutory scheme governing nonjudicial foreclosure sales, and the policy interests advanced by Commercial Code section 3312, it is clear that allowing a remedy under the latter does not undermine the former. Indeed, the two remedies are complementary and advance the same goals. The first two goals of the nonjudicial foreclosure statutes: (1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor and (2) to protect the debtor/trustor from a wrongful loss of the property, are not impacted by the decision that we reach. This case most certainly, however, involves the third policy interest: to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser.

This is very significant since it provides further support to lawsuits brought against foreclosing parties lacking the ability to enforce the underlying note, since those laws also arise under Article 3. Under California Commercial Code 3301, a note may only be enforced if one has actual possession of the note as a holder, or has possession of the note not as a non-holder but with holder rights.

Just like in California Golf, enforcing 3301 operates to protect the debtor/trustor from a wrongful loss of the property. To the extent that a foreclosing party might argue that such lawsuits disrupt a quick, inexpensive, and efficient remedy against a defaulting debtor/trustor, the response is that “since there is no enforceable obligation, the foreclosing entity is not a party/creditor/beneficiary entitled to a quick, inexpensive, and efficient remedy,” but simply a declarant that recorded false documents.

This is primarily because being entitled to foreclose non-judicially under 2924 can only take place “after a breach of the obligation for which that mortgage or transfer is a security.” Thus, 2924 by its own terms, looks outside of the statute to the actual obligation to see if there was a breach, and if the note is unenforceable under Article 3, there can simply be no breach. End of story.

Accordingly, if there is no possession of the note or possession was not obtained until after the notice of sale was recorded, it is impossible to trigger 2924, and simple compliance with the notice requirements in 2924 does not suddenly bless the felony of grand theft of the unknown foreclosing entity. To hold otherwise would create absurd results since it would allow any person or company the right to take another persons’ home by simply recording a false notice of default and notice of sale.

Indeed, such absurdity would allow you to foreclose on your own home again to get it back should you simply record the same false documents. Thus it is obvious that these courts improperly assume the allegations contained in the notice of default and notice of sale are truthful. Perhaps these courts simply can not or choose not to believe such frauds are taking place due to the magnitude and volume of foreclosures in this Country at this time. One can only image the chaos that would ensue in America if the truth is known that millions of foreclosures took place unlawfully and millions more are now on hold as a result of not having the ability to enforce the underlying obligation pursuant to Article 3.

So if you are in litigation to stop a foreclosure, you can probably expect the Court will want to immediately dismiss your case. These Courts just can not understand how the law would allow someone to stay in a home without paying. Notwithstanding, laws can not be broken, and Courts are not allowed to join with the foreclosing parties in breaking laws simply because “not paying doesn’t seem right.”

Accordingly, at least for appeal purposes, be sure to argue that 2924 was never triggered since there was never any “breach of the obligation” and that Appellate Courts throughout California have routinely held that other laws do in fact apply in the non-judicial foreclosure process since the policies advanced by the statutory non-judicial foreclosure scheme are not frustrated by these other laws.

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Tags: 2923.5, 2923.6, 2924, 2932.5, Foreclosure, lis pendence, litigation, stop foreclosure, truth in lending 2923.5

Categories : 2923.5, 2923.6, Foreclosure, I Have a Plan

Another win against Downey Savings

29 06 2010

645068 – US BANK VS. MARTIN, A – Plaintiff’s Motion for Summary Judgment – DENIED. The Plaintiff as moving party has established a prima facie showing that it is entitled to judgment for possession against Defendant as a matter of law. However, Defendant’s objections Nos. 1, 3-6, 8, 9, and 11 to the Johnson Declaration are overruled; and objections Nos. 2, 7 and 10 are sustained, based on a lack personal knowledge and/or hearsay, regarding the alleged transfer of the beneficial interest to Plaintiff and as to the reasonable rental value.

Further, the Court finds the Defendant has met his burden of establishing triable issues of fact to rebut the presumption of validity of the sale and the issue of whether Plaintiff had the right to proceed with foreclosure. Namely the evidence of a gap in title and security interest from Downey Savings & Loan through the FDIC to Plaintiff during the time of the foreclosure proceeding, as well as missing evidence to show whether the Trustee, DSL Service Company, was authorized to act as Plaintiff’s agent in continuing to pursue the sale once Downey Savings & Loan had lost its security interest. (See Plaintiff’s undisputed fact # 7 and Defendant’s objection thereto; and Declaration of Defense counsel, McCandless, paragraphs 2, 8, 9, 10, 12 and 13). As such, triable issues of material fact remain and the motion for summary judgment is denied.

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Tags: stop foreclosure, mortgage meltdown, Foreclosure, litigation, Fraud

Categories : 2924, Foreclosure

MABRY tip no injunction needed to stop foreclosure TERRY MABRY et al., opinion 2923.5 Cilvil code

12 06 2010

The court in Mabry pointed out there are provisions in 2924 G to postpone a foreclosure sale. This could go a long way to facilitate the postponement and workout contemplated by 2923.5. This would be without having to Get a Temporary restraining order (TRO) and preliminary injunction. In other words not have to meet the burden to sustain the preliminary injunction and since the holding declares no tender is necessary no posting of a bond. I have attached the provision:
(c)

(1) There may be a postponement or postponements of the sale proceedings, including a postponement upon instruction by the beneficiary to the trustee that the sale proceedings be postponed, at any time prior to the completion of the sale for any period of time not to exceed a total of 365 days from the date set forth in the notice of sale. The trustee shall postpone the sale in accordance with any of the following:

(A) Upon the order of any court of competent jurisdiction.

For all you non lawyers out there this is key.

To sustain a preliminary injunction we have to put on a mini trial demonstrating that the case is more likely than no to prevail at trial;and sustain a permanent injunction. In the early stages this is an impossible burden without discovery.The other side puts up the Tender rule and asks the court to make the plaintiff (our client) put up a bond sometimes as high as the loan balance. If we use the code 2924 G the court has the power to delay the sale pursuant to 2924 G (c)(1)(A) for up to 365 days without using its equitable powers of injunction. The court can postpone the sale as a mater of law.

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Tags: stop foreclosure, civil code 2924, Foreclosure, 2923.5

Categories : 2924, Mortgage modification, mortgage meltdown, pedatory lending, stop foreclosure

Civil Code 2924

12 06 2010

CA Foreclosure Law – Civil Code 2924
Civil Code 2924

2924.
(a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge. Where, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations, or is made by a public utility subject to the provisions of the Public Utilities Act, until all of the following apply:

(1) The trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice of default. That notice of default shall include all of the following:

(A) A statement identifying the mortgage or deed of trust by stating the name or names of the trustor or trustors and giving the book and page, or instrument number, if applicable, where the mortgage or deed of trust is recorded or a description of the mortgaged or trust property.

(B) A statement that a breach of the obligation for which the mortgage or transfer in trust is security has occurred.

(C) A statement setting forth the nature of each breach actually known to the beneficiary and of his or her election to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default.

(D) If the default is curable pursuant to Section 2924c, the statement specified in paragraph (1) of subdivision (b) of Section 2924c.

(2) Not less than three months shall elapse from the filing of the notice of default.

(3) After the lapse of the three months described in paragraph (2), the mortgagee, trustee or other person authorized to take the sale shall give notice of sale, stating the time and place thereof, in the manner and for a time not less than that set forth in Section 2924f.

(b) In performing acts required by this article, 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 this article, a trustee shall not be subject to Title 1.6c (commencing with Section 1788) of Part 4.

(c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.

(d) All of the following shall constitute privileged communications pursuant to Section 47:

(1) The mailing, publication, and delivery of notices as required by this section.

(2) Performance of the procedures set forth in this article.

(3) Performance of the functions and procedures set forth in this article if those functions and procedures are necessary to carry out the duties described in Sections 729.040, 729.050, and 729.080 of the Code of Civil Procedure.

(e) There is a rebuttable presumption that the beneficiary actually knew of all unpaid loan payments on the obligation owed to the beneficiary and secured by the deed of trust or mortgage subject to the notice of default. However, the failure to include an actually known default shall not invalidate the notice of sale and the beneficiary shall not be precluded from asserting a claim to this omitted default or defaults in a separate notice of default.

(1) A copy of the notice of default filed in the office of the county recorder pursuant to Section 2924 on account of a breach of obligation under the promissory note on which the agent has agreed to make collections of payments, within 15 days after recordation.

(2) Notice that a notice of default has been recorded pursuant to Section 2924 on account of a breach of an obligation secured by a mortgage or deed of trust against the same property or estate for years therein having priority over the mortgage or deed of trust securing the obligation described in paragraph (1), within 15 days after recordation or within three business days after the agent receives the information, whichever is later.

(3) Notice of the time and place scheduled for the sale of the real property or estate for years therein pursuant to Section 2924f under a power of sale in a mortgage or deed of trust securing an obligation described in paragraphs (1) or (2), not less than 15 days before the scheduled date of the sale or not later than the next business day after the agent receives the information, whichever is later.

(b) An agent who has undertaken to make collections on behalf of mortgagees, beneficiaries or owners of promissory notes secured by mortgages or deeds of trust on real property or an estate for years therein shall not be required to comply with the provisions of subdivision (a) with respect to a mortgagee, beneficiary or owner who is entitled to receive notice pursuant to subdivision (c) of Section 2924b or for whom a request for notice has been recorded pursuant to subdivision (b) of Section 2924b if the agent reasonably believes that the address of the mortgagee, beneficiary, or owner described in Section 2924b is the current business or residence address of that person.

(c) An agent who has undertaken to make collections on behalf of mortgagees, beneficiaries or owners of promissory notes secured by mortgages or deeds of trust on real property or an estate for years therein shall not be required to comply with the provisions of paragraph (1) or (2) of subdivision (a) if the agent knows or reasonably believes that the default has already been cured by or on behalf of the obligor.

(d) Any failure to comply with the provisions of this section shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.

2924.5.
No clause in any deed of trust or mortgage on property containing four or fewer residential units or on which four or fewer residential units are to be constructed or in any obligation secured by any deed of trust or mortgage on property containing four or fewer residential units or on which four or fewer residential units are to be constructed that provides for the acceleration of the due date of the obligation upon the sale, conveyance, alienation, lease, succession, assignment or other transfer of the property subject to the deed of trust or mortgage shall be valid unless the clause is set forth, in its entirety in both the body of the deed of trust or mortgage and the promissory note or other document evidencing the secured obligation. This section shall apply to all such deeds of trust, mortgages, and obligations secured thereby executed on or after July 1, 1972.

2924.6.
(a) An obligee may not accelerate the maturity date of the principal and accrued interest on any loan secured by a mortgage or deed of trust on residential real property solely by reason of any one or more of the following transfers in the title to the real property:

(1) A transfer resulting from the death of an obligor where the transfer is to the spouse who is also an obligor.

(2) A transfer by an obligor where the spouse becomes a coowner of the property.

(3) A transfer resulting from a decree of dissolution of the marriage or legal separation or from a property settlement agreement incidental to such a decree which requires the obligor to continue to make the loan payments by which a spouse who is an obligor becomes the sole owner of the property.

(4) A transfer by an obligor or obligors into an inter vivos trust in which the obligor or obligors are beneficiaries.

(5) Such real property or any portion thereof is made subject to a junior encumbrance or lien.

(b) Any waiver of the provisions of this section by an obligor is void and unenforceable and is contrary to public policy.

(c) For the purposes of this section, “residential real property” means any real property which contains at least one but not more than four housing units.

(d) This act applies only to loans executed or refinanced on or after January 1, 1976.

2924.7.
(a) The provisions of any deed of trust or mortgage on real property which authorize any beneficiary, trustee, mortgagee, or his or her agent or successor in interest, to accelerate the maturity date of the principal and interest on any loan secured thereby or to exercise any power of sale or other remedy contained therein upon the failure of the trustor or mortgagor to pay, at the times provided for under the terms of the deed of trust or mortgage, any taxes, rents, assessments, or insurance premiums with respect to the property or the loan, or any advances made by the beneficiary, mortgagee, or his or her agent or successor in interest shall be enforceable whether or not impairment of the security interest in the property has resulted from the failure of the trustor or mortgagor to pay the taxes, rents, assessments, insurance premiums, or advances.

(b) The provisions of any deed of trust or mortgage on real property which authorize any beneficiary, trustee, mortgagee, or his or her agent or successor in interest, to receive and control the disbursement of the proceeds of any policy of fire, flood, or other hazard insurance respecting the property shall be enforceable whether or not impairment of the security interest in the property has resulted from the event that caused the proceeds of the insurance policy to become payable.

2924a.
If, by the terms of any trust or deed of trust a power of sale is conferred upon the trustee, the attorney for the trustee, or any duly authorized agent, may conduct the sale and act in the sale as the auctioneer for the trustee.

2924b.
(a) Any person desiring a copy of any notice of default and of any notice of sale under any deed of trust or mortgage with power of sale upon real property or an estate for years therein, as to which deed of trust or mortgage the power of sale cannot be exercised until these notices are given for the time and in the manner provided in Section 2924 may, at any time subsequent to recordation of the deed of trust or mortgage and prior to recordation of notice of default thereunder, cause to be filed for record in the office of the recorder of any county in which any part or parcel of the real property is situated, a duly acknowledged request for a copy of the notice of default and of sale. This request shall be signed and acknowledged by the person making the request, specifying the name and address of the person to whom the notice is to be mailed, shall identify the deed of trust or mortgage by stating the names of the parties thereto, the date of recordation thereof, and the book and page where the deed of trust or mortgage is recorded or the recorder’ s number, and shall be in substantially the following form:

NOTICE: A copy of any notice of default and of
any notice of sale will be sent only to the address contained in this
recorded request. If your address changes, a new
request must be recorded.

Signature _________________”

Upon the filing for record of the request, the recorder shall index in the general index of grantors the names of the trustors (or mortgagor) recited therein and the names of persons requesting copies.

(b) The mortgagee, trustee, or other person authorized to record the notice of default or the notice of sale shall do each of the following:

(1) Within 10 business days following recordation of the notice of default, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice with the recording date shown thereon, addressed to each person whose name and address are set forth in a duly recorded request therefor, directed to the address designated in the request and to each trustor or mortgagor at his or her last known address if different than the address specified in the deed of trust or mortgage with power of sale.

(2) At least 20 days before the date of sale, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice of the time and place of sale, addressed to each person whose name and address are set forth in a duly recorded request therefor, directed to the address designated in the request and to each trustor or mortgagor at his or her last known address if different than the address specified in the deed of trust or mortgage with power of sale.

(3) As used in paragraphs (1) and (2), the “last known address” of each trustor or mortgagor means the last business or residence physical address actually known by the mortgagee, beneficiary, trustee, or other person authorized to record the notice of default. For the purposes of this subdivision, an address is “actually known” if it is contained in the original deed of trust or mortgage, or in any subsequent written notification of a change of physical address from the trustor or mortgagor pursuant to the deed of trust or mortgage. For the purposes of this subdivision, “physical address” does not include an e-mail or any form of electronic address for a trustor or mortgagor. The beneficiary shall inform the trustee of the trustor’s last address actually known by the beneficiary. However, the trustee shall incur no liability for failing to send any notice to the last address unless the trustee has actual knowledge of it.

(4) A “person authorized to record the notice of default or the notice of sale” shall include an agent for the mortgagee or beneficiary, an agent of the named trustee, any person designated in an executed substitution of trustee, or an agent of that substituted trustee.

(c) The mortgagee, trustee, or other person authorized to record the notice of default or the notice of sale shall do the following:

(1) Within one month following recordation of the notice of default, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice with the recording date shown thereon, addressed to each person set forth in paragraph (2), provided that the estate or interest of any person entitled to receive notice under this subdivision is acquired by an instrument sufficient to impart constructive notice of the estate or interest in the land or portion thereof which is subject to the deed of trust or mortgage being foreclosed, and provided the instrument is recorded in the office of the county recorder so as to impart that constructive notice prior to the recording date of the notice of default and provided the instrument as so recorded sets forth a mailing address which the county recorder shall use, as instructed within the instrument, for the return of the instrument after recording, and which address shall be the address used for the purposes of mailing notices herein.

(2) The persons to whom notice shall be mailed under this subdivision are:

(A) The successor in interest, as of the recording date of the notice of default, of the estate or interest or any portion thereof of the trustor or mortgagor of the deed of trust or mortgage being foreclosed.

(B) The beneficiary or mortgagee of any deed of trust or mortgage recorded subsequent to the deed of trust or mortgage being foreclosed, or recorded prior to or concurrently with the deed of trust or mortgage being foreclosed but subject to a recorded agreement or a recorded statement of subordination to the deed of trust or mortgage being foreclosed.

(C) The assignee of any interest of the beneficiary or mortgagee described in subparagraph (B), as of the recording date of the notice of default.

(D) The vendee of any contract of sale, or the lessee of any lease, of the estate or interest being foreclosed which is recorded subsequent to the deed of trust or mortgage being foreclosed, or recorded prior to or concurrently with the deed of trust or mortgage being foreclosed but subject to a recorded agreement or statement of subordination to the deed of trust or mortgage being foreclosed.

(E) The successor in interest to the vendee or lessee described in subparagraph (D), as of the recording date of the notice of default.

(F) The office of the Controller, Sacramento, California, where, as of the recording date of the notice of default, a “Notice of Lien for Postponed Property Taxes” has been recorded against the real property to which the notice of default applies.

(3) At least 20 days before the date of sale, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice of the time and place of sale addressed to each person to whom a copy of the notice of default is to be mailed as provided in paragraphs (1) and (2), and addressed to the office of any state taxing agency, Sacramento, California, which has recorded, subsequent to the deed of trust or mortgage being foreclosed, a notice of tax lien prior to the recording date of the notice of default against the real property to which the notice of default applies.

(4) Provide a copy of the notice of sale to the Internal Revenue Service, in accordance with Section 7425 of the Internal Revenue Code and any applicable federal regulation, if a “Notice of Federal Tax Lien under Internal Revenue Laws” has been recorded, subsequent to the deed of trust or mortgage being foreclosed, against the real property to which the notice of sale applies. The failure to provide the Internal Revenue Service with a copy of the notice of sale pursuant to this paragraph shall be sufficient cause to rescind the trustee’s sale and invalidate the trustee’s deed, at the option of either the successful bidder at the trustee’s sale or the trustee, and in either case with the consent of the beneficiary. Any option to rescind the trustee’s sale pursuant to this paragraph shall be exercised prior to any transfer of the property by the successful bidder to a bona fide purchaser for value. A recision of the trustee’ s sale pursuant to this paragraph may be recorded in a notice of recision pursuant to Section 1058.5.

(5) The mailing of notices in the manner set forth in paragraph (1) shall not impose upon any licensed attorney, agent, or employee of any person entitled to receive notices as herein set forth any duty to communicate the notice to the entitled person from the fact that the mailing address used by the county recorder is the address of the attorney, agent, or employee.

(d) Any deed of trust or mortgage with power of sale hereafter executed upon real property or an estate for years therein may contain a request that a copy of any notice of default and a copy of any notice of sale thereunder shall be mailed to any person or party thereto at the address of the person given therein, and a copy of any notice of default and of any notice of sale shall be mailed to each of these at the same time and in the same manner required as though a separate request therefor had been filed by each of these persons as herein authorized. If any deed of trust or mortgage with power of sale executed after September 19, 1939, except a deed of trust or mortgage of any of the classes excepted from the provisions of Section 2924, does not contain a mailing address of the trustor or mortgagor therein named, and if no request for special notice by the trustor or mortgagor in substantially the form set forth in this section has subsequently been recorded, a copy of the notice of default shall be published once a week for at least four weeks in a newspaper of general circulation in the county in which the property is situated, the publication to commence within 10 business days after the filing of the notice of default. In lieu of publication, a copy of the notice of default may be delivered personally to the trustor or mortgagor within the 10 business days or at any time before publication is completed, or by posting the notice of default in a conspicuous place on the property and mailing the notice to the last known address of the trustor or mortgagor.

(e) Any person required to mail a copy of a notice of default or notice of sale to each trustor or mortgagor pursuant to subdivision (b) or (c) by registered or certified mail shall simultaneously cause to be deposited in the United States mail, with postage prepaid and mailed by first-class mail, an envelope containing an additional copy of the required notice addressed to each trustor or mortgagor at the same address to which the notice is sent by registered or certified mail pursuant to subdivision (b) or (c). The person shall execute and retain an affidavit identifying the notice mailed, showing the name and residence or business address of that person, that he or she is over the age of 18 years, the date of deposit in the mail, the name and address of the trustor or mortgagor to whom sent, and that the envelope was sealed and deposited in the mail with postage fully prepaid. In the absence of fraud, the affidavit required by this subdivision shall establish a conclusive presumption of mailing.

(f) No request for a copy of any notice filed for record pursuant to this section, no statement or allegation in the request, and no record thereof shall affect the title to real property or be deemed notice to any person that any person requesting copies of notice has or claims any right, title, or interest in, or lien or charge upon the property described in the deed of trust or mortgage referred to therein.

(g) “Business day,” as used in this section, has the meaning specified in Section 9.

2924c.
(a)

(1) Whenever all or a portion of the principal sum of any obligation secured by deed of trust or mortgage on real property or an estate for years therein hereafter executed has, prior to the maturity date fixed in that obligation, become due or been declared due by reason of default in payment of interest or of any installment of principal, or by reason of failure of trustor or mortgagor to pay, in accordance with the terms of that obligation or of the deed of trust or mortgage, taxes, assessments, premiums for insurance, or advances made by beneficiary or mortgagee in accordance with the terms of that obligation or of the deed of trust or mortgage, the trustor or mortgagor or his or her successor in interest in the mortgaged or trust property or any part thereof, or any beneficiary under a subordinate deed of trust or any other person having a subordinate lien or encumbrance of record thereon, at any time within the period specified in subdivision (e), if the power of sale therein is to be exercised, or, otherwise at any time prior to entry of the decree of foreclosure, may pay to the beneficiary or the mortgagee or their successors in interest, respectively, the entire amount due, at the time payment is tendered, with respect to (A) all amounts of principal, interest, taxes, assessments, insurance premiums, or advances actually known by the beneficiary to be, and that are, in default and shown in the notice of default, under the terms of the deed of trust or mortgage and the obligation secured thereby, (B) all amounts in default on recurring obligations not shown in the notice of default, and (C) all reasonable costs and expenses, subject to subdivision (c), which are actually incurred in enforcing the terms of the obligation, deed of trust, or mortgage, and trustee’s or attorney’s fees, subject to subdivision (d), other than the portion of principal as would not then be due had no default occurred, and thereby cure the default theretofore existing, and thereupon, all proceedings theretofore had or instituted shall be dismissed or discontinued and the obligation and deed of trust or mortgage shall be reinstated and shall be and remain in force and effect, the same as if the acceleration had not occurred. This section does not apply to bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations or made by a public utility subject to the Public Utilities Code. For the purposes of this subdivision, the term “recurring obligation” means all amounts of principal and interest on the loan, or rents, subject to the deed of trust or mortgage in default due after the notice of default is recorded; all amounts of principal and interest or rents advanced on senior liens or leaseholds which are advanced after the recordation of the notice of default; and payments of taxes, assessments, and hazard insurance advanced after recordation of the notice of default. Where the beneficiary or mortgagee has made no advances on defaults which would constitute recurring obligations, the beneficiary or mortgagee may require the trustor or mortgagor to provide reliable written evidence that the amounts have been paid prior to reinstatement.

(2) If the trustor, mortgagor, or other person authorized to cure the default pursuant to this subdivision does cure the default, the beneficiary or mortgagee or the agent for the beneficiary or mortgagee shall, within 21 days following the reinstatement, execute and deliver to the trustee a notice of rescission which rescinds the declaration of default and demand for sale and advises the trustee of the date of reinstatement. The trustee shall cause the notice of rescission to be recorded within 30 days of receipt of the notice of rescission and of all allowable fees and costs.

No charge, except for the recording fee, shall be made against the trustor or mortgagor for the execution and recordation of the notice which rescinds the declaration of default and demand for sale.

(b)

(1) The notice, of any default described in this section, recorded pursuant to Section 2924, and mailed to any person pursuant to Section 2924b, shall begin with the following statement, printed or typed thereon:

“IMPORTANT NOTICE (14-point boldface type if printed or in
capital letters if typed)

IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR
PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, (14-point boldface
type if printed or in capital letters if typed) and you may have the
legal right to bring your account in good standing by paying all of
your past due payments plus permitted costs and expenses within the
time permitted by law for reinstatement of your account, which is
normally five business days prior to the date set for the sale of
your property. No sale date may be set until three months from the
date this notice of default may be recorded (which date of
recordation appears on this notice).

This amount is ___________________ as of ______________________
(Date)
and will increase until your account becomes current.

While your property is in foreclosure, you still must pay other
obligations (such as insurance and taxes) required by your note and
deed of trust or mortgage. If you fail to make future payments on
the loan, pay taxes on the property, provide insurance on the
property, or pay other obligations as required in the note and deed
of trust or mortgage, the beneficiary or mortgagee may insist that
you do so in order to reinstate your account in good standing. In
addition, the beneficiary or mortgagee may require as a condition to
reinstatement that you provide reliable written evidence that you
paid all senior liens, property taxes, and hazard insurance premiums.

Upon your written request, the beneficiary or mortgagee will give
you a written itemization of the entire amount you must pay. You may
not have to pay the entire unpaid portion of your account, even
though full payment was demanded, but you must pay all amounts in
default at the time payment is made. However, you and your
beneficiary or mortgagee may mutually agree in writing prior to the
time the notice of sale is posted (which may not be earlier than the
end of the three-month period stated above) to, among other things,
(1) provide additional time in which to cure the default by transfer
of the property or otherwise; or (2) establish a schedule of payments
in order to cure your default; or both (1) and (2).
Following the expiration of the time period referred to in the
first paragraph of this notice, unless the obligation being
foreclosed upon or a separate written agreement between you and your
creditor permits a longer period, you have only the legal right to
stop the sale of your property by paying the entire amount demanded
by your creditor.
To find out the amount you must pay, or to arrange for payment to
stop the foreclosure, or if your property is in foreclosure for any
other reason, contact:

______________________________________
(Name of beneficiary or mortgagee)

______________________________________
(Mailing address)

______________________________________
(Telephone)

If you have any questions, you should contact a lawyer or the
governmental agency which may have insured your loan.
Notwithstanding the fact that your property is in foreclosure, you
may offer your property for sale, provided the sale is concluded
prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT
ACTION. (14-point boldface type if printed or in capital letters if
typed)”

Unless otherwise specified, the notice, if printed, shall appear in at least 12-point boldface type.

If the obligation secured by the deed of trust or mortgage is a contract or agreement described in paragraph (1) or (4) of subdivision (a) of Section 1632, the notice required herein shall be in Spanish if the trustor requested a Spanish language translation of the contract or agreement pursuant to Section 1632. If the obligation secured by the deed of trust or mortgage is contained in a home improvement contract, as defined in Sections 7151.2 and 7159 of the Business and Professions Code, which is subject to Title 2 (commencing with Section 1801), the seller shall specify on the contract whether or not the contract was principally negotiated in Spanish and if the contract was principally negotiated in Spanish, the notice required herein shall be in Spanish. No assignee of the contract or person authorized to record the notice of default shall incur any obligation or liability for failing to mail a notice in Spanish unless Spanish is specified in the contract or the assignee or person has actual knowledge that the secured obligation was principally negotiated in Spanish. Unless specified in writing to the contrary, a copy of the notice required by subdivision (c) of Section 2924b shall be in English.

(2) Any failure to comply with the provisions of this subdivision shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.

(c) Costs and expenses which may be charged pursuant to Sections 2924 to 2924i, inclusive, shall be limited to the costs incurred for recording, mailing, including certified and express mail charges, publishing, and posting notices required by Sections 2924 to 2924i, inclusive, postponement pursuant to Section 2924g not to exceed fifty dollars ($50) per postponement and a fee for a trustee’s sale guarantee or, in the event of judicial foreclosure, a litigation guarantee. For purposes of this subdivision, a trustee or beneficiary may purchase a trustee’s sale guarantee at a rate meeting the standards contained in Sections 12401.1 and 12401.3 of the Insurance Code.

(d) Trustee’s or attorney’s fees which may be charged pursuant to subdivision (a), or until the notice of sale is deposited in the mail to the trustor as provided in Section 2924b, if the sale is by power of sale contained in the deed of trust or mortgage, or, otherwise at any time prior to the decree of foreclosure, are hereby authorized to be in a base amount that does not exceed three hundred dollars ($300) if the unpaid principal sum secured is one hundred fifty thousand dollars ($150,000) or less, or two hundred fifty dollars ($250) if the unpaid principal sum secured exceeds one hundred fifty thousand dollars ($150,000), plus one-half of 1 percent of the unpaid principal sum secured exceeding fifty thousand dollars ($50,000) up to and including one hundred fifty thousand dollars ($150,000), plus one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty thousand dollars ($150,000) up to and including five hundred thousand dollars ($500,000), plus one-eighth of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand dollars ($500,000). Any charge for trustee’s or attorney’s fees authorized by this subdivision shall be conclusively presumed to be lawful and valid where the charge does not exceed the amounts authorized herein. For purposes of this subdivision, the unpaid principal sum secured shall be determined as of the date the notice of default is recorded.

(e) Reinstatement of a monetary default under the terms of an obligation secured by a deed of trust, or mortgage may be made at any time within the period commencing with the date of recordation of the notice of default until five business days prior to the date of sale set forth in the initial recorded notice of sale.

In the event the sale does not take place on the date set forth in the initial recorded notice of sale or a subsequent recorded notice of sale is required to be given, the right of reinstatement shall be revived as of the date of recordation of the subsequent notice of sale, and shall continue from that date until five business days prior to the date of sale set forth in the subsequently recorded notice of sale.

In the event the date of sale is postponed on the date of sale set forth in either an initial or any subsequent notice of sale, or is postponed on the date declared for sale at an immediately preceding postponement of sale, and, the postponement is for a period which exceeds five business days from the date set forth in the notice of sale, or declared at the time of postponement, then the right of reinstatement is revived as of the date of postponement and shall continue from that date until five business days prior to the date of sale declared at the time of the postponement.

Nothing contained herein shall give rise to a right of reinstatement during the period of five business days prior to the date of sale, whether the date of sale is noticed in a notice of sale or declared at a postponement of sale.

Pursuant to the terms of this subdivision, no beneficiary, trustee, mortgagee, or their agents or successors shall be liable in any manner to a trustor, mortgagor, their agents or successors or any beneficiary under a subordinate deed of trust or mortgage or any other person having a subordinate lien or encumbrance of record thereon for the failure to allow a reinstatement of the obligation secured by a deed of trust or mortgage during the period of five business days prior to the sale of the security property, and no such right of reinstatement during this period is created by this section. Any right of reinstatement created by this section is terminated five business days prior to the date of sale set forth in the initial date of sale, and is revived only as prescribed herein and only as of the date set forth herein.

As used in this subdivision, the term “business day” has the same meaning as specified in Section 9.

2924d.
(a) Commencing with the date that the notice of sale is deposited in the mail, as provided in Section 2924b, and until the property is sold pursuant to the power of sale contained in the mortgage or deed of trust, a beneficiary, trustee, mortgagee, or his or her agent or successor in interest, may demand and receive from a trustor, mortgagor, or his or her agent or successor in interest, or any beneficiary under a subordinate deed of trust, or any other person having a subordinate lien or encumbrance of record those reasonable costs and expenses, to the extent allowed by subdivision (c) of Section 2924c, which are actually incurred in enforcing the terms of the obligation and trustee’s or attorney’s fees which are hereby authorized to be in a base amount which does not exceed four hundred twenty-five dollars ($425) if the unpaid principal sum secured is one hundred fifty thousand dollars ($150,000) or less, or three hundred sixty dollars ($360) if the unpaid principal sum secured exceeds one hundred fifty thousand dollars ($150,000), plus 1 percent of any portion of the unpaid principal sum secured exceeding fifty thousand dollars ($50,000) up to and including one hundred fifty thousand dollars ($150,000), plus one-half of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty thousand dollars ($150,000) up to and including five hundred thousand dollars ($500,000), plus one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand dollars ($500,000). For purposes of this subdivision, the unpaid principal sum secured shall be determined as of the date the notice of default is recorded. Any charge for trustee’s or attorney’ s fees authorized by this subdivision shall be conclusively presumed to be lawful and valid where that charge does not exceed the amounts authorized herein. Any charge for trustee’s or attorney’s fees made pursuant to this subdivision shall be in lieu of and not in addition to those charges authorized by subdivision (d) of Section 2924c.

(b) Upon the sale of property pursuant to a power of sale, a trustee, or his or her agent or successor in interest, may demand and receive from a beneficiary, or his or her agent or successor in interest, or may deduct from the proceeds of the sale, those reasonable costs and expenses, to the extent allowed by subdivision (c) of Section 2924c, which are actually incurred in enforcing the terms of the obligation and trustee’s or attorney’s fees which are hereby authorized to be in an amount which does not exceed four hundred twenty-five dollars ($425) or one percent of the unpaid principal sum secured, whichever is greater. For purposes of this subdivision, the unpaid principal sum secured shall be determined as of the date the notice of default is recorded. Any charge for trustee’s or attorney’s fees authorized by this subdivision shall be conclusively presumed to be lawful and valid where that charge does not exceed the amount authorized herein. Any charges for trustee’s or attorney’s fees made pursuant to this subdivision shall be in lieu of and not in addition to those charges authorized by subdivision (a) of this section and subdivision (d) of Section 2924c.

(c)

(1) No person shall pay or offer to pay or collect any rebate or kickback for the referral of business involving the performance of any act required by this article.

(2) Any person who violates this subdivision shall be liable to the trustor for three times the amount of any rebate or kickback, plus reasonable attorney’s fees and costs, in addition to any other remedies provided by law.

(3) No violation of this subdivision shall affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value without notice.

(d) It shall not be unlawful for a trustee to pay or offer to pay a fee to an agent or subagent of the trustee for work performed by the agent or subagent in discharging the trustee’s obligations under the terms of the deed of trust. Any payment of a fee by a trustee to an agent or subagent of the trustee for work performed by the agent or subagent in discharging the trustee’s obligations under the terms of the deed of trust shall be conclusively presumed to be lawful and valid if the fee, when combined with other fees of the trustee, does not exceed in the aggregate the trustee’s fee authorized by subdivision (d) of Section 2924c or subdivision (a) or (b) of this section.

(e) When a court issues a decree of foreclosure, it shall have discretion to award attorney’s fees, costs, and expenses as are reasonable, if provided for in the note, deed of trust, or mortgage, pursuant to Section 580c of the Code of Civil Procedure.

2924e.
(a) The beneficiary or mortgagee of any deed of trust or mortgage on real property either containing one to four residential units or given to secure an original obligation not to exceed three hundred thousand dollars ($300,000) may, with the written consent of the trustor or mortgagor that is either effected through a signed and dated agreement which shall be separate from other loan and security documents or disclosed to the trustor or mortgagor in at least 10-point type, submit a written request by certified mail to the beneficiary or mortgagee of any lien which is senior to the lien of the requester, for written notice of any or all delinquencies of four months or more, in payments of principal or interest on any obligation secured by that senior lien notwithstanding that the loan secured by the lien of the requester is not then in default as to payments of principal or interest.

The request shall be sent to the beneficiary or mortgagee, or agent which it might designate for the purpose of receiving loan payments, at the address specified for the receipt of these payments, if known, or, if not known, at the address shown on the recorded deed of trust or mortgage.

(b) The request for notice shall identify the ownership or security interest of the requester, the date on which the interest of the requester will terminate as evidenced by the maturity date of the note of the trustor or mortgagor in favor of the requester, the name of the trustor or mortgagor and the name of the current owner of the security property if different from the trustor or mortgagor, the street address or other description of the security property, the loan number (if available to the requester) of the loan secured by the senior lien, the name and address to which notice is to be sent, and shall include or be accompanied by the signed written consent of the trustor or mortgagor, and a fee of forty dollars ($40). For obligations secured by residential properties, the request shall remain valid until withdrawn in writing and shall be applicable to all delinquencies as provided in this section, which occur prior to the date on which the interest of the requester will terminate as specified in the request or the expiration date, as appropriate. For obligations secured by nonresidential properties, the request shall remain valid until withdrawn in writing and shall be applicable to all delinquencies as provided in this section, which occur prior to the date on which the interest of the requester will terminate as specified in the request or the expiration date, as appropriate. The beneficiary or mortgagee of obligations secured by nonresidential properties that have sent five or more notices prior to the expiration of the effective period of the request may charge a fee up to fifteen dollars ($15) for each subsequent notice. A request for notice shall be effective for five years from the mailing of the request or the recording of that request, whichever occurs later, and may be renewed within six months prior to its expiration date by sending the beneficiary or mortgagee, or agent, as the case may be, at the address to which original requests for notice are to be sent, a copy of the earlier request for notice together with a signed statement that the request is renewed and a renewal fee of fifteen dollars ($15). Upon timely submittal of a renewal request for notice, the effectiveness of the original request is continued for five years from the time when it would otherwise have lapsed. Succeeding renewal requests may be submitted in the same manner. The request for notice and renewals thereof shall be recorded in the office of the county recorder of the county in which the security real property is situated. The rights and obligations specified in this section shall inure to the benefit of, or pass to, as the case may be, successors in interest of parties specified in this section. Any successor in interest of a party entitled to notice under this section shall file a request for that notice with any beneficiary or mortgagee of the senior lien and shall pay a processing fee of fifteen dollars ($15). No new written consent shall be required from the trustor or mortgagor.

(c) Unless the delinquency has been cured, within 15 days following the end of four months from any delinquency in payments of principal or interest on any obligation secured by the senior lien which delinquency exists or occurs on or after 10 days from the mailing of the request for notice or the recording of that request, whichever occurs later, the beneficiary or mortgagee shall give written notice to the requester of the fact of any delinquency and the amount thereof.

The notice shall be given by personal service, or by deposit in the mail, first-class postage paid. Following the recording of any notice of default pursuant to Section 2924 with respect to the same delinquency, no notice or further notice shall be required pursuant to this section.

(d) If the beneficiary or mortgagee of any such senior lien fails to give notice to the requester as required in subdivision (c), and a subsequent foreclosure or trustee’s sale of the security property occurs, the beneficiary or mortgagee shall be liable to the requester for any monetary damage due to the failure to provide notice within the time period specified in subdivision (c) which the requester has sustained from the date on which notice should have been given to the earlier of the date on which the notice is given or the date of the recording of the notice of default under Section 2924, and shall also forfeit to the requester the sum of three hundred dollars ($300). A showing by the beneficiary or mortgagee by a preponderance of the evidence that the failure to provide timely notice as required by subdivision (c) resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error shall be a defense to any liability for that failure.

(e) If any beneficiary or mortgagee, or agent which it had designated for the purpose of receiving loan payments, has been succeeded in interest by any other person, any request for notice received pursuant to this section shall be transmitted promptly to that person.

(f) Any failure to comply with the provisions of this section shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.

(g) Upon satisfaction of an obligation secured by a junior lien with respect to which a notice request was made pursuant to this section, the beneficiary or mortgagee that made the request shall communicate that fact in writing to the senior lienholder to whom the request was made. The communication shall specify that provision of notice pursuant to the prior request under this section is no longer required.

2924f.
(a) As used in this section and Sections 2924g and 2924h, “property” means real property or a leasehold estate therein, and “calendar week” means Monday through Saturday, inclusive.

(b)

(1) Except as provided in subdivision (c), before any sale of property can be made under the power of sale contained in any deed of trust or mortgage, or any resale resulting from a rescission for a failure of consideration pursuant to subdivision (c) of Section 2924h, notice of the sale thereof shall be given by posting a written notice of the time of sale and of the street address and the specific place at the street address where the sale will be held, and describing the property to be sold, at least 20 days before the date of sale in one public place in the city where the property is to be sold, if the property is to be sold in a city, or, if not, then in one public place in the judicial district in which the property is to be sold, and publishing a copy once a week for three consecutive calendar weeks, the first publication to be at least 20 days before the date of sale, in a newspaper of general circulation published in the city in which the property or some part thereof is situated, if any part thereof is situated in a city, if not, then in a newspaper of general circulation published in the judicial district in which the property or some part thereof is situated, or in case no newspaper of general circulation is published in the city or judicial district, as the case may be, in a newspaper of general circulation published in the county in which the property or some part thereof is situated, or in case no newspaper of general circulation is published in the city or judicial district or county, as the case may be, in a newspaper of general circulation published in the county in this state that (A) is contiguous to the county in which the property or some part thereof is situated and (B) has, by comparison with all similarly contiguous counties, the highest population based upon total county population as determined by the most recent federal decennial census published by the Bureau of the Census. A copy of the notice of sale shall also be posted in a conspicuous place on the property to be sold at least 20 days before the date of sale, where possible and where not restricted for any reason. If the property is a single-family residence the posting shall be on a door of the residence, but, if not possible or restricted, then the notice shall be posted in a conspicuous place on the property; however, if access is denied because a common entrance to the property is restricted by a guard gate or similar impediment, the property may be posted at that guard gate or similar impediment to any development community. Additionally, the notice of sale shall conform to the minimum requirements of Section 6043 of the Government Code and be recorded with the county recorder of the county in which the property or some part thereof is situated at least 14 days prior to the date of sale. The notice of sale shall contain the name, street address in this state, which may reflect an agent of the trustee, and either a toll-free telephone number or telephone number in this state of the trustee, and the name of the original trustor, and also shall contain the statement required by paragraph (3) of subdivision (c). In addition to any other description of the property, the notice shall describe the property by giving its street address, if any, or other common designation, if any, and a county assessor’s parcel number; but if the property has no street address or other common designation, the notice shall contain a legal description of the property, the name and address of the beneficiary at whose request the sale is to be conducted, and a statement that directions may be obtained pursuant to a written request submitted to the beneficiary within 10 days from the first publication of the notice. Directions shall be deemed reasonably sufficient to locate the property if information as to the location of the property is given by reference to the direction and approximate distance from the nearest crossroads, frontage road, or access road. If a legal description or a county assessor’s parcel number and either a street address or another common designation of the property is given, the validity of the notice and the validity of the sale shall not be affected by the fact that the street address, other common designation, name and address of the beneficiary, or the directions obtained therefrom are erroneous or that the street address, other common designation, name and address of the beneficiary, or directions obtained therefrom are omitted. The term “newspaper of general circulation,” as used in this section, has the same meaning as defined in Article 1 (commencing with Section 6000) of Chapter 1 of Division 7 of Title 1 of the Government Code.

The notice of sale shall contain a statement of the total amount of the unpaid balance of the obligation secured by the property to be sold and reasonably estimated costs, expenses, advances at the time of the initial publication of the notice of sale, and, if republished pursuant to a cancellation of a cash equivalent pursuant to subdivision (d) of Section 2924h, a reference of that fact; provided, that the trustee shall incur no liability for any good faith error in stating the proper amount, including any amount provided in good faith by or on behalf of the beneficiary. An inaccurate statement of this amount shall not affect the validity of any sale to a bona fide purchaser for value, nor shall the failure to post the notice of sale on a door as provided by this subdivision affect the validity of any sale to a bona fide purchaser for value.

(2) If the sale of the property is to be a unified sale as provided in subparagraph (B) of paragraph (1) of subdivision (a) of Section 9604 of the Commercial Code, the notice of sale shall also contain a description of the personal property or fixtures to be sold. In the case where it is contemplated that all of the personal property or fixtures are to be sold, the description in the notice of the personal property or fixtures shall be sufficient if it is the same as the description of the personal property or fixtures contained in the agreement creating the security interest in or encumbrance on the personal property or fixtures or the filed financing statement relating to the personal property or fixtures. In all other cases, the description in the notice shall be sufficient if it would be a sufficient description of the personal property or fixtures under Section 9108 of the Commercial Code. Inclusion of a reference to or a description of personal property or fixtures in a notice of sale hereunder shall not constitute an election by the secured party to conduct a unified sale pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of Section 9604 of the Commercial Code, shall not obligate the secured party to conduct a unified sale pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of Section 9604 of the Commercial Code, and in no way shall render defective or noncomplying either that notice or a sale pursuant to that notice by reason of the fact that the sale includes none or less than all of the personal property or fixtures referred to or described in the notice. This paragraph shall not otherwise affect the obligations or duties of a secured party under the Commercial Code.

(c)

(1) This subdivision applies only to deeds of trust or mortgages which contain a power of sale and which are secured by real property containing a single-family, owner-occupied residence, where the obligation secured by the deed of trust or mortgage is contained in a contract for goods or services subject to the provisions of the Unruh Act (Chapter 1 (commencing with Section 1801) of Title 2 of Part 4 of Division 3).

(2) Except as otherwise expressly set forth in this subdivision, all other provisions of law relating to the exercise of a power of sale shall govern the exercise of a power of sale contained in a deed of trust or mortgage described in paragraph (1).

(3) If any default of the obligation secured by a deed of trust or mortgage described in paragraph (1) has not been cured within 30 days after the recordation of the notice of default, the trustee or mortgagee shall mail to the trustor or mortgagor, at his or her last known address, a copy of the following statement:

YOU ARE IN DEFAULT UNDER A
___________________________________________________,
Deed of trust or mortgage
DATED ______. UNLESS YOU TAKE ACTION TO PROTECT
YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.
IF YOU NEED AN EXPLANATION OF THE NATURE OF THE
PROCEEDING AGAINST YOU, YOU SHOULD CONTACT A LAWYER.

(4) All sales of real property pursuant to a power of sale contained in any deed of trust or mortgage described in paragraph (1) shall be held in the county where the residence is located and shall be made to the person making the highest offer. The trustee may receive offers during the 10-day period immediately prior to the date of sale and if any offer is accepted in writing by both the trustor or mortgagor and the beneficiary or mortgagee prior to the time set for sale, the sale shall be postponed to a date certain and prior to which the property may be conveyed by the trustor to the person making the offer according to its terms. The offer is revocable until accepted. The performance of the offer, following acceptance, according to its terms, by a conveyance of the property to the offeror, shall operate to terminate any further proceeding under the notice of sale and it shall be deemed revoked.

(5) In addition to the trustee fee pursuant to Section 2924c, the trustee or mortgagee pursuant to a deed of trust or mortgage subject to this subdivision shall be entitled to charge an additional fee of fifty dollars ($50).

(6) This subdivision applies only to property on which notices of default were filed on or after the effective date of this subdivision.

2924g.
(a) All sales of property under the power of sale contained in any deed of trust or mortgage shall be held in the county where the property or some part thereof is situated, and shall be made at auction, to the highest bidder, between the hours of 9 a.m. and 5 p.m. on any business day, Monday through Friday.

The sale shall commence at the time and location specified in the notice of sale. Any postponement shall be announced at the time and location specified in the notice of sale for commencement of the sale or pursuant to paragraph (1) of subdivision (c).

If the sale of more than one parcel of real property has been scheduled for the same time and location by the same trustee, (1) any postponement of any of the sales shall be announced at the time published in the notice of sale, (2) the first sale shall commence at the time published in the notice of sale or immediately after the announcement of any postponement, and (3) each subsequent sale shall take place as soon as possible after the preceding sale has been completed.

(b) When the property consists of several known lots or parcels, they shall be sold separately unless the deed of trust or mortgage provides otherwise. When a portion of the property is claimed by a third person, who requires it to be sold separately, the portion subject to the claim may be thus sold. The trustor, if present at the sale, may also, unless the deed of trust or mortgage otherwise provides, direct the order in which property shall be sold, when the property consists of several known lots or parcels which may be sold to advantage separately, and the trustee shall follow that direction. After sufficient property has been sold to satisfy the indebtedness, no more can be sold.

If the property under power of sale is in two or more counties, the public auction sale of all of the property under the power of sale may take place in any one of the counties where the property or a portion thereof is located.

(c)

(A) Upon the order of any court of competent jurisdiction.

(B) If stayed by operation of law.

(C) By mutual agreement, whether oral or in writing, of any trustor and any beneficiary or any mortgagor and any mortgagee.

(D) At the discretion of the trustee.

(2) In the event that the sale proceedings are postponed for a period or periods totaling more than 365 days, the scheduling of any further sale proceedings shall be preceded by giving a new notice of sale in the manner prescribed in Section 2924f. New fees incurred for the new notice of sale shall not exceed the amounts specified in Sections 2924c and 2924d, and shall not exceed reasonable costs that are necessary to comply with this paragraph.

(d) The notice of each postponement and the reason therefor shall be given by public declaration by the trustee at the time and place last appointed for sale. A public declaration of postponement shall also set forth the new date, time, and place of sale and the place of sale shall be the same place as originally fixed by the trustee for the sale. No other notice of postponement need be given. However, the sale shall be conducted no sooner than on the seventh day after the earlier of (1) dismissal of the action or (2) expiration or termination of the injunction, restraining order, or stay that required postponement of the sale, whether by entry of an order by a court of competent jurisdiction, operation of law, or otherwise, unless the injunction, restraining order, or subsequent order expressly directs the conduct of the sale within that seven-day period. For purposes of this subdivision, the seven-day period shall not include the day on which the action is dismissed, or the day on which the injunction, restraining order, or stay expires or is terminated. If the sale had been scheduled to occur, but this subdivision precludes its conduct during that seven-day period, a new notice of postponement shall be given if the sale had been scheduled to occur during that seven-day period. The trustee shall maintain records of each postponement and the reason therefor.

(e) Notwithstanding the time periods established under subdivision

(d), if postponement of a sale is based on a stay imposed by Title 11 of the United States Code (bankruptcy), the sale shall be conducted no sooner than the expiration of the stay imposed by that title and the seven-day provision of subdivision (d) shall not apply.

2924h.
(a) Each and every bid made by a bidder at a trustee’s sale under a power of sale contained in a deed of trust or mortgage shall be deemed to be an irrevocable offer by that bidder to purchase the property being sold by the trustee under the power of sale for the amount of the bid. Any second or subsequent bid by the same bidder or any other bidder for a higher amount shall be a cancellation of the prior bid.

(b) At the trustee’s sale the trustee shall have the right (1) to require every bidder to show evidence of the bidder’s ability to deposit with the trustee the full amount of his or her final bid in cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee prior to, and as a condition to, the recognizing of the bid, and to conditionally accept and hold these amounts for the duration of the sale, and (2) to require the last and highest bidder to deposit, if not deposited previously, the full amount of the bidder’s final bid in cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee, immediately prior to the completion of the sale, the completion of the sale being so announced by the fall of the hammer or in another customary manner. The present beneficiary of the deed of trust under foreclosure shall have the right to offset his or her bid or bids only to the extent of the total amount due the beneficiary including the trustee’s fees and expenses.

(c) In the event the trustee accepts a check drawn by a credit union or a savings and loan association pursuant to this subdivision or a cash equivalent designated in the notice of sale, the trustee may withhold the issuance of the trustee’s deed to the successful bidder submitting the check drawn by a state or federal credit union or savings and loan association or the cash equivalent until funds become available to the payee or endorsee as a matter of right.

For the purposes of this subdivision, the trustee’s sale shall be deemed final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 8 a.m. on the actual date of sale if the trustee’s deed is recorded within 15 calendar days after the sale, or the next business day following the 15th day if the county recorder in which the property is located is closed on the 15th day. However, the sale is subject to an automatic rescission for a failure of consideration in the event the funds are not “available for withdrawal” as defined in Section 12413.1 of the Insurance Code. The trustee shall send a notice of rescission for a failure of consideration to the last and highest bidder submitting the check or alternative instrument, if the address of the last and highest bidder is known to the trustee.

If a sale results in an automatic right of rescission for failure of consideration pursuant to this subdivision, the interest of any lienholder shall be reinstated in the same priority as if the previous sale had not occurred.

(d) If the trustee has not required the last and highest bidder to deposit the cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee in the manner set forth in paragraph (2) of subdivision (b), the trustee shall complete the sale. If the last and highest bidder then fails to deliver to the trustee, when demanded, the amount of his or her final bid in cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee, that bidder shall be liable to the trustee for all damages which the trustee may sustain by the refusal to deliver to the trustee the amount of the final bid, including any court costs and reasonable attorneys’ fees.

If the last and highest bidder willfully fails to deliver to the trustee the amount of his or her final bid in cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee, or if the last and highest bidder cancels a cashiers check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent that has been designated in the notice of sale as acceptable to the trustee, that bidder shall be guilty of a misdemeanor punishable by a fine of not more than two thousand five hundred dollars ($2,500).

In the event the last and highest bidder cancels an instrument submitted to the trustee as a cash equivalent, the trustee shall provide a new notice of sale in the manner set forth in Section 2924f and shall be entitled to recover the costs of the new notice of sale as provided in Section 2924c.

(e) Any postponement or discontinuance of the sale proceedings shall be a cancellation of the last bid.

(f) In the event that this section conflicts with any other statute, then this section shall prevail.

(g) It shall be unlawful for any person, acting alone or in concert with others, (1) to offer to accept or accept from another, any consideration of any type not to bid, or (2) to fix or restrain bidding in any manner, at a sale of property conducted pursuant to a power of sale in a deed of trust or mortgage. However, it shall not be unlawful for any person, including a trustee, to state that a property subject to a recorded notice of default or subject to a sale conducted pursuant to this chapter is being sold in an “as-is” condition.

In addition to any other remedies, any person committing any act declared unlawful by this subdivision or any act which would operate as a fraud or deceit upon any beneficiary, trustor, or junior lienor shall, upon conviction, be fined not more than ten thousand dollars ($10,000) or imprisoned in the county jail for not more than one year, or be punished by both that fine and imprisonment.

2924i.
(a) This section applies to loans secured by a deed of trust or mortgage on real property containing one to four residential units at least one of which at the time the loan is made is or is to be occupied by the borrower if the loan is for a period in excess of one year and is a balloon payment loan.

(b) This section shall not apply to (1) open end credit as defined in Regulation Z, whether or not the transaction is otherwise subject to Regulation Z, (2) transactions subject to Section 2956, or (3) loans made for the principal purpose of financing the construction of one or more residential units.

(c) At least 90 days but not more than 150 days prior to the due date of the final payment on a loan that is subject to this section, the holder of the loan shall deliver or mail by first-class mail, with a certificate of mailing obtained from the United States Postal Service, to the trustor, or his or her successor in interest, at the last known address of that person, a written notice which shall include all of the following:

(1) A statement of the name and address of the person to whom the final payment is required to be paid.

(2) The date on or before which the final payment is required to be paid.

(3) The amount of the final payment, or if the exact amount is unknown, a good faith estimate of the amount thereof, including unpaid principal, interest and any other charges, such amount to be determined assuming timely payment in full of all scheduled installments coming due between the date the notice is prepared and the date when the final payment is due.

(4) If the borrower has a contractual right to refinance the final payment, a statement to that effect.

If the due date of the final payment of a loan subject to this section is extended prior to the time notice is otherwise required under this subdivision, this notice requirement shall apply only to the due date as extended (or as subsequently extended).

(d) For purposes of this section:

(1) A “balloon payment loan” is a loan which provides for a final payment as originally scheduled which is more than twice the amount of any of the immediately preceding six regularly scheduled payments or which contains a call provision; provided, however, that if the call provision is not exercised by the holder of the loan, the existence of the unexercised call provision shall not cause the loan to be deemed to be a balloon payment loan.

(2) “Call provision” means a loan contract term that provides the holder of the loan with the right to call the loan due and payable either after a specified period has elapsed following closing or after a specified date.

(3) “Regulation Z” means any rule, regulation, or interpretation promulgated by the Board of Governors of the Federal Reserve System under the Federal Truth in Lending Act, as amended (15 U.S.C. Sec. 1601 et seq.), and any interpretation or approval thereof issued by an official or employee of the Federal Reserve System duly authorized by the board under the Truth in Lending Act, as amended, to issue such interpretations or approvals.

(e) Failure to provide notice as required by subdivision (a) does not extinguish any obligation of payment by the borrower, except that the due date for any balloon payment shall be the date specified in the balloon payment note, or 90 days from the date of delivery or mailing of the notice required by subdivision (a), or the due date specified in the notice required by subdivision (a), whichever date is later. If the operation of this section acts to extend the term of any note, interest shall continue to accrue for the extended term at the contract rate and payments shall continue to be due at any periodic interval and on any payment schedule specified in the note and shall be credited to principal or interest under the terms of the note. Default in any extended periodic payment shall be considered a default under terms of the note or security instrument.

(f)

(1) The validity of any credit document or of any security document subject to the provisions of this section shall not be invalidated solely because of the failure of any person to comply with this section. However, any person who willfully violates any provision of this section shall be liable in the amount of actual damages suffered by the debtor as the proximate result of the violation, and, if the debtor prevails in any suit to recover that amount, for reasonable attorney’s fees.

(2) No person may be held liable in any action under this section if it is shown by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error.

(g) The provisions of this section shall apply to any note executed on or after January 1, 1984.

2924j.
(a) Unless an interpleader action has been filed, within 30 days of the execution of the trustee’s deed resulting from a sale in which there are proceeds remaining after payment of the amounts required by paragraphs (1) and (2) of subdivision (a) of Section 2924k, the trustee shall send written notice to all persons with recorded interests in the real property as of the date immediately prior to the trustee’s sale who would be entitled to notice pursuant to subdivisions (b) and (c) of Section 2924b. The notice shall be sent by first-class mail in the manner provided in paragraph (1) of subdivision (c) of Section 2924b and inform each entitled person of each of the following:

(1) That there has been a trustee’s sale of the described real property.

(2) That the noticed person may have a claim to all or a portion of the sale proceeds remaining after payment of the amounts required by paragraphs (1) and (2) of subdivision (a) of Section 2924k.

(3) The noticed person may contact the trustee at the address provided in the notice to pursue any potential claim.

(4) That before the trustee can act, the noticed person may be required to present proof that the person holds the beneficial interest in the obligation and the security interest therefor. In the case of a promissory note secured by a deed of trust, proof that the person holds the beneficial interest may include the original promissory note and assignment of beneficial interests related thereto. The noticed person shall also submit a written claim to the trustee, executed under penalty of perjury, stating the following:

(A) The amount of the claim to the date of trustee’s sale.

(B) An itemized statement of the principal, interest, and other charges.

(C) That claims must be received by the trustee at the address stated in the notice no later than 30 days after the date the trustee sends notice to the potential claimant.

(b) The trustee shall exercise due diligence to determine the priority of the written claims received by the trustee to the trustee’ s sale surplus proceeds from those persons to whom notice was sent pursuant to subdivision (a). In the event there is no dispute as to the priority of the written claims submitted to the trustee, proceeds shall be paid within 30 days after the conclusion of the notice period. If the trustee has failed to determine the priority of written claims within 90 days following the 30-day notice period, then within 10 days thereafter the trustee shall deposit the funds with the clerk of the court pursuant to subdivision (c) or file an interpleader action pursuant to subdivision (e). Nothing in this section shall preclude any person from pursuing other remedies or claims as to surplus proceeds.

(c) If, after due diligence, the trustee is unable to determine the priority of the written claims received by the trustee to the trustee’s sale surplus of multiple persons or if the trustee determines there is a conflict between potential claimants, the trustee may file a declaration of the unresolved claims and deposit with the clerk of the superior court of the county in which the sale occurred, that portion of the sales proceeds that cannot be distributed, less any fees charged by the clerk pursuant to this subdivision. The declaration shall specify the date of the trustee’s sale, a description of the property, the names and addresses of all persons sent notice pursuant to subdivision (a), a statement that the trustee exercised due diligence pursuant to subdivision (b), that the trustee provided written notice as required by subdivisions (a) and (d) and the amount of the sales proceeds deposited by the trustee with the court. Further, the trustee shall submit a copy of the trustee’s sales guarantee and any information relevant to the identity, location, and priority of the potential claimants with the court and shall file proof of service of the notice required by subdivision (d) on all persons described in subdivision (a).

The clerk shall deposit the amount with the county treasurer or, if a bank account has been established for moneys held in trust under paragraph (2) of subdivision (a) of Section 77009 of the Government Code, in that account, subject to order of the court upon the application of any interested party. The clerk may charge a reasonable fee for the performance of activities pursuant to this subdivision equal to the fee for filing an interpleader action pursuant to Chapter 5.8 (commencing with Section 70600) of Title 8 of the Government Code. Upon deposit of that portion of the sale proceeds that cannot be distributed by due diligence, the trustee shall be discharged of further responsibility for the disbursement of sale proceeds. A deposit with the clerk of the court pursuant to this subdivision may be either for the total proceeds of the trustee’ s sale, less any fees charged by the clerk, if a conflict or conflicts exist with respect to the total proceeds, or that portion that cannot be distributed after due diligence, less any fees charged by the clerk.

(d) Before the trustee deposits the funds with the clerk of the court pursuant to subdivision (c), the trustee shall send written notice by first-class mail, postage prepaid, to all persons described in subdivision (a) informing them that the trustee intends to deposit the funds with the clerk of the court and that a claim for the funds must be filed with the court within 30 days from the date of the notice, providing the address of the court in which the funds were deposited, and a telephone number for obtaining further information.

Within 90 days after deposit with the clerk, the court shall consider all claims filed at least 15 days before the date on which the hearing is scheduled by the court, the clerk shall serve written notice of the hearing by first-class mail on all claimants identified in the trustee’s declaration at the addresses specified therein. Where the amount of the deposit is twenty-five thousand dollars ($25,000) or less, a proceeding pursuant to this section is a limited civil case. The court shall distribute the deposited funds to any and all claimants entitled thereto.

(e) Nothing in this section restricts the ability of a trustee to file an interpleader action in order to resolve a dispute about the proceeds of a trustee’s sale. Once an interpleader action has been filed, thereafter the provisions of this section do not apply.

(f) “Due diligence,” for the purposes of this section means that the trustee researched the written claims submitted or other evidence of conflicts and determined that a conflict of priorities exists between two or more claimants which the trustee is unable to resolve.

(g) To the extent required by the Unclaimed Property Law, a trustee in possession of surplus proceeds not required to be deposited with the court pursuant to subdivision (b) shall comply with the Unclaimed Property Law (Chapter 7 (commencing with Section 1500) of Title 10 of Part 3 of the Code of Civil Procedure).

(h) The trustee, beneficiary, or counsel to the trustee or beneficiary, is not liable for providing to any person who is entitled to notice pursuant to this section, information set forth in, or a copy of, subdivision (h) of Section 2945.3.

2924k.
(a) The trustee, or the clerk of the court upon order to the clerk pursuant to subdivision (d) of Section 2924j, shall distribute the proceeds, or a portion of the proceeds, as the case may be, of the trustee’s sale conducted pursuant to Section 2924h in the following order of priority:

(1) To the costs and expenses of exercising the power of sale and of sale, including the payment of the trustee’s fees and attorney’s fees permitted pursuant to subdivision (b) of Section 2924d and subdivision (b) of this section.

(2) To the payment of the obligations secured by the deed of trust or mortgage which is the subject of the trustee’s sale.

(3) To satisfy the outstanding balance of obligations secured by any junior liens or encumbrances in the order of their priority.

(4) To the trustor or the trustor’s successor in interest. In the event the property is sold or transferred to another, to the vested owner of record at the time of the trustee’s sale.

(b) A trustee may charge costs and expenses incurred for such items as mailing and a reasonable fee for services rendered in connection with the distribution of the proceeds from a trustee’s sale, including, but not limited to, the investigation of priority and validity of claims and the disbursement of funds. If the fee charged for services rendered pursuant to this subdivision does not exceed one hundred dollars ($100), or one hundred twenty-five dollars ($125) where there are obligations specified in paragraph (3) of subdivision (a), the fee is conclusively presumed to be reasonable.

2924l.
(a) In the event that a trustee under a deed of trust is named in an action or proceeding in which that deed of trust is the subject, and in the event that the trustee maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the performance of its duties as trustee, then, at any time, the trustee may file a declaration of nonmonetary status. The declaration shall be served on the parties in the manner set forth in Chapter 5 (commencing with Section 1010) of Title 14 of the Code of Civil Procedure.

(b) The declaration of nonmonetary status shall set forth the status of the trustee as trustee under the deed of trust that is the subject of the action or proceeding, that the trustee knows or maintains a reasonable belief that it has been named as a defendant in the proceeding solely in its capacity as a trustee under the deed of trust, its reasonable belief that it has not been named as a defendant due to any acts or omissions on its part in the performance of its duties as trustee, the basis for that knowledge or reasonable belief, and that it agrees to be bound by whatever order or judgment is issued by the court regarding the subject deed of trust.

(c) The parties who have appeared in the action or proceeding shall have 15 days from the service of the declaration by the trustee in which to object to the nonmonetary judgment status of the trustee. Any objection shall set forth the factual basis on which the objection is based and shall be served on the trustee.

(d) In the event that no objection is served within the 15-day objection period, the trustee shall not be required to participate any further in the action or proceeding, shall not be subject to any monetary awards as and for damages, attorneys’ fees or costs, shall be required to respond to any discovery requests as a nonparty, and shall be bound by any court order relating to the subject deed of trust that is the subject of the action or proceeding.

(e) In the event of a timely objection to the declaration of nonmonetary status, the trustee shall thereafter be required to participate in the action or proceeding.

Additionally, in the event that the parties elect not to, or fail to, timely object to the declaration of nonmonetary status, but later through discovery, or otherwise, determine that the trustee should participate in the action because of the performance of its duties as a trustee, the parties may file and serve on all parties and the trustee a motion pursuant to Section 473 of the Code of Civil Procedure that specifies the factual basis for the demand. Upon the court’s granting of the motion, the trustee shall thereafter be required to participate in the action or proceeding, and the court shall provide sufficient time prior to trial for the trustee to be able to respond to the complaint, to conduct discovery, and to bring other pretrial motions in accordance with the Code of Civil Procedure.

(f) Upon the filing of the declaration of nonmonetary status, the time within which the trustee is required to file an answer or other responsive pleading shall be tolled for the period of time within which the opposing parties may respond to the declaration. Upon the timely service of an objection to the declaration on nonmonetary status, the trustee shall have 30 days from the date of service within which to file an answer or other responsive pleading to the complaint or cross-complaint.

(g) For purposes of this section, “trustee” includes any agent or employee of the trustee who performs some or all of the duties of a trustee under this article, and includes substituted trustees and agents of the beneficiary or trustee.

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Tags: Foreclosure

Categories : 2924

MERS and civil code 2932.5 and Bankruptcy code 547 here is how it comes together

26 05 2010

CA Civil Code 2932.5 – Assignment”Where a power to sell real property is
given to a mortgagee, or other encumbrancer, in an instrument intended
to secure the payment of money, the power is part of the security and
vests in any person who by assignment becomes entitled to payment of the
money secured by the instrument. The power of sale may be exercised by
the assignee if the assignment is duly acknowledged and recorded.”

Landmark vs Kesler – While this is a matter of first impression in
Kansas, other jurisdictions have issued opinions on similar and related
issues, and, while we do not consider those opinions binding in the
current litigation, we find them to be useful guideposts in our analysis
of the issues before us.”

“Black’s Law Dictionary defines a nominee as “[a] person designated to
act in place of another, usu. in a very limited way” and as “[a] party
who holds bare legal title for the benefit of others or who receives and
distributes funds for the benefit of others.” Black’s Law Dictionary
1076 (8th ed. 2004). This definition suggests that a nominee possesses
few or no legally enforceable rights beyond those of a principal whom
the nominee serves……..The legal status of a nominee, then, depends
on the context of the relationship of the nominee to its principal.
Various courts have interpreted the relationship of MERS and the lender
as an agency relationship.”

“LaSalle Bank Nat. Ass’n v. Lamy, 2006 WL 2251721, at *2 (N.Y. Sup.
2006) (unpublished opinion) (“A nominee of the owner of a note and
mortgage may not effectively assign the note and mortgage to another for
want of an ownership interest in said note and mortgage by the
nominee.”)”

The law generally understands that a mortgagee is not distinct from a
lender: a mortgagee is “[o]ne to whom property is mortgaged: the
mortgage creditor, or lender.” Black’s Law Dictionary 1034 (8th ed.
2004). By statute, assignment of the mortgage carries with it the
assignment of the debt. K.S.A. 58-2323. Although MERS asserts that,
under some situations, the mortgage document purports to give it the
same rights as the lender, the document consistently refers only to
rights of the lender, including rights to receive notice of litigation,
to collect payments, and to enforce the debt obligation. The document
consistently limits MERS to acting “solely” as the nominee of the
lender.

Indeed, in the event that a mortgage loan somehow separates interests of
the note and the deed of trust, with the deed of trust lying with some
independent entity, the mortgage may become unenforceable.

“The practical effect of splitting the deed of trust from the promissory
note is to make it impossible for the holder of the note to foreclose,
unless the holder of the deed of trust is the agent of the holder of the
note. [Citation omitted.] Without the agency relationship, the person
holding only the note lacks the power to foreclose in the event of
default. The person holding only the deed of trust will never experience
default because only the holder of the note is entitled to payment of
the underlying obligation. [Citation omitted.] The mortgage loan becomes
ineffectual when the note holder did not also hold the deed of trust.”
Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App.
2009).

“MERS never held the promissory note,thus its assignment of the deed of
trust to Ocwen separate from the note had no force.” 284 S.W.3d at 624;
see also In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009) (standard
mortgage note language does not expressly or implicitly authorize MERS
to transfer the note); In re Vargas, 396 B.R. 511, 517 (Bankr. C.D. Cal.
2008) (“[I]f FHM has transferred the note, MERS is no longer an
authorized agent of the holder unless it has a separate agency contract
with the new undisclosed principal. MERS presents no evidence as to who
owns the note, or of any authorization to act on behalf of the present
owner.”); Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180
(N.D. Cal. 2008) (unpublished opinion) (“[F]or there to be a valid
assignment, there must be more than just assignment of the deed alone;
the note must also be assigned. . . . MERS purportedly assigned both the
deed of trust and the promissory note. . . . However, there is no
evidence of record that establishes that MERS either held the promissory
note or was given the authority . . . to assign the note.”).

What stake in the outcome of an independent action for foreclosure could
MERS have? It did not lend the money to Kesler or to anyone else
involved in this case. Neither Kesler nor anyone else involved in the
case was required by statute or contract to pay money to MERS on the
mortgage. See Sheridan, ___ B.R. at ___ (“MERS is not an economic
‘beneficiary’ under the Deed of Trust. It is owed and will collect no
money from Debtors under the Note, nor will it realize the value of the
Property through foreclosure of the Deed of Trust in the event the Note
is not paid.”). If MERS is only the mortgagee, without ownership of the
mortgage instrument, it does not have an enforceable right. See Vargas,
396 B.R. 517 (“[w]hile the note is ‘essential,’ the mortgage is only ‘an
incident’ to the note” [quoting Carpenter v. Longan, 16 Wall. 271, 83
U.S. 271, 275, 21 L. Ed 313 (1872)]).

* MERS had no Beneficial Interest in the Note,
* MERS and the limited agency authority it has under the dot does
not continue with the assignment of the mortgage or dot absent a
ratification or a separate agency agreement between mers and the
assignee.
* The Note and the Deed of Trust were separated at or shortly
after origination upon endorsement and negotiation of the note rendering
the dot a nullity
* MERS never has any power or legal authority to transfer the note
to any entity;
* mers never has a beneficial interest in the note and pays
nothing of value for the note.

Bankr. Code 547 provides, among other things, that an unsecured
creditor who had won a race to an interest in the debtor’s property
using the state remedies system within 90 days of the filing of the
bankruptcy petition may have to forfeit its winnings (without
compensation for any expenses it may have incurred in winning the race)
for the benefit of all unsecured creditors. The section therefore
prevents certain creditors from being preferred over others (hence,
section 547 of the Bankruptcy Code is titled “Preferences).” An
additional effect of the section (and one of its stated purposes) may be
to discourage some unsecured creditors from aggressively pursuing the
debtor under the state remedies system, thus affording the debtor more
breathing space outside bankruptcy, for fear that money spent using the
state remedies system will be wasted if the debtor files a bankruptcy
petition.

. Bankr. Code 547(c) provides several important exceptions to the
preference avoidance power.

Bankr. Code 547 permits avoidance of liens obtained within the 90 day
(or one year) period: the creation of a lien on property of the debtor,
whether voluntary, such as through a consensual lien, or involuntary,
such as through a judicial lien, would, absent avoidance, have the same
preferential impact as a transfer of money from a debtor to a creditor
in payment of a debt. If the security interest was created in the
creditor within the 90 day window, and if other requirements of section
547(b) are satisfied, the security interest can be avoided and the real
property sold by the trustee free of the security interest (subject to
homestead exemption). All unsecured creditors of the debtor, including
the creditor whose lien has been avoided, will share, pro rata, in the
distribution of assets of the debtor, including the proceeds of the sale
of the real estate

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Tags: 2923.5 2923.6 2924 2932.5 Audit bankruptcy california California cram down Chapter 13 civil code 2923.5 civil code 2924 Countrywide Cram down Cramdown criminal acts eviction FCRA FDCPA Federal Jurisdi, 2932.5, bankruptcy, Foreclosure, lis pendence

Categories : 2924, Foreclosure, bankruptcy, stop foreclosure

90% Forclosures Wrongful

1 01 2010

Causes of Action

Wrongful foreclosure actions may allege that the amount stated in the notice of default as due and owing is incorrect because of the following reasons:

Damages Available to Borrower

Why Do Wrongful Foreclosures Occur?

Don’t get HAMP ED out of your home!

5 09 2009

A ‘Little Judge’ Who Rejects Foreclosures, Brooklyn Style

2 09 2009

By Michael Powell – NY Times – 8/30/09

The judge waves you into his chambers in the State Supreme Court building in Brooklyn, past the caveat taped to his wall — “Be sure brain in gear before engaging mouth” — and into his inner office, where foreclosure motions are piled high enough to form a minor Alpine chain.

“I don’t want to put a family on the street unless it’s legitimate,” Justice Arthur M. Schack said.

Every week, the nation’s mightiest banks come to his court seeking to take the homes of New Yorkers who cannot pay their mortgages. And nearly as often, the judge says, they file foreclosure papers speckled with errors.

He plucks out one motion and leafs through: a Deutsche Bank representative signed an affidavit claiming to be the vice president of two different banks. His office was in Kansas City, Mo., but the signature was notarized in Texas. And the bank did not even own the mortgage when it began to foreclose on the homeowner.

The judge’s lips pucker as if he had inhaled a pickle; he rejected this one. “I’m a little guy in Brooklyn who doesn’t belong to their country clubs, what can I tell you?” he says, adding a shrug for punctuation. “I won’t accept their comedy of errors.”

The judge, Arthur M. Schack, 64, fashions himself a judicial Don Quixote, tilting at the phalanxes of bankers, foreclosure facilitators and lawyers who file motions by the bale. While national debate focuses on bank bailouts and federal aid for homeowners that has been slow in coming, the hard reckonings of the foreclosure crisis are being made in courts like his, and Justice Schack’s sympathies are clear. He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years. And his often scathing decisions, peppered with allusions to the Croesus-like wealth of bank presidents, have attracted the respectful attention of judges and lawyers from Florida to Ohio to California. At recent judicial conferences in Chicago and Arizona, several panelists praised his rulings as a possible national model.

His opinions, too, have been greeted by a cry of affront from a bank official or two, who say this judge stands in the way of what is rightfully theirs. HSBC bank appealed a recent ruling, saying he had set a “dangerous precedent” by acting as “both judge and jury,” throwing out cases even when homeowners had not responded to foreclosure motions. Justice Schack, like a handful of state and federal judges, has taken a magnifying glass to the mortgage industry. In the gilded haste of the past decade, bankers handed out millions of mortgages — with terms good, bad and exotically ugly — then repackaged those loans for sale to investors from Connecticut to Singapore. Sloppiness reigned. So many papers have been lost, signatures misplaced and documents dated inaccurately that it is often not clear which bank owns the mortgage.

Justice Schack’s take is straightforward, and sends a tremor through some bank suites: If a bank cannot prove ownership, it cannot foreclose. “If you are going to take away someone’s house, everything should be legal and correct,” he said. “I’m a strange guy — I don’t want to put a family on the street unless it’s legitimate.”

Justice Schack has small jowls and big black glasses, a thin mustache and not so many hairs combed across his scalp. He has the impish eyes of the high school social studies teacher he once was, aware that something untoward is probably going on at the back of his classroom. He is Brooklyn born and bred, with a master’s degree in history and an office loaded with autographed baseballs and photographs of the Brooklyn Dodgers. His written decisions are a free-associative trip through popular, legal and literary culture, with a sideways glance at the business pages.

Confronted with a case in which Deutsche Bank and Goldman Sachs passed a defaulted mortgage back and forth and lost track of the documents, the judge made reference to the film classic “It’s a Wonderful Life” and the evil banker played by Lionel Barrymore. “Lenders should not lose sight,” Justice Schack wrote in that 2007 case, “that they are dealing with humanity, not with Mr. Potter’s ‘rabble’ and ‘cattle.’ Multibillion-dollar corporations must follow the same rules in the foreclosure actions as the local banks, savings and loan associations or credit unions, or else they have become the Mr. Potters of the 21st century.”

Last year, he chastised Wells Fargo for filing error-filled papers. “The court,” the judge wrote, “reminds Wells Fargo of Cassius’s advice to Brutus in Act 1, Scene 2 of William Shakespeare’s ‘Julius Caesar’: ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ ”

Then there is a Deutsche Bank case from 2008, the juicy part of which he reads aloud:

“The court wonders if the instant foreclosure action is a corporate ‘Kansas City Shuffle,’ a complex confidence game,” he reads. “In the 2006 film ‘Lucky Number Slevin,’ Mr. Goodkat, a hit man played by Bruce Willis, explains: ‘A Kansas City Shuffle is when everybody looks right, you go left.’ “The banks’ reaction? Justice Schack shrugs. “They probably curse at me,” he says, “but no one is interested in some little judge.”

Little drama attends the release of his decisions. Beaten-down homeowners rarely show up to contest foreclosure actions, and the judge scrutinizes the banks’ papers in his chambers. But at legal conferences, judges and lawyers have wondered aloud why more judges do not hold banks to tougher standards.

“To the extent that judges examine these papers, they find exactly the same errors that Judge Schack does,” said Katherine M. Porter, a visiting professor at the School of Law at the University of California, Berkeley, and a national expert in consumer credit law. “His rulings are hardly revolutionary; it’s unusual only because we so rarely hold large corporations to the rules.”

Banks and the cottage industry of mortgage service companies and foreclosure lawyers also pay rather close attention. A spokeswoman for OneWest Bank acknowledged that an official, confronted with a ream of foreclosure papers, had mistakenly signed for two different banks — just as the Deutsche Bank official did. Deutsche Bank, which declined to let an attorney speak on the record about any of its cases before Justice Schack, e-mailed a PDF of a three-page pamphlet in which it claimed little responsibility for foreclosures, even though the bank’s name is affixed to tens of thousands of such motions. The bank described itself as simply a trustee for investors.

Justice Schack came to his recent prominence by a circuitous path, having worked for 14 years as public school teacher in Brooklyn. He was a union representative and once walked a picket line with his wife, Dilia, who was a teacher, too. All was well until the fiscal crisis of the 1970s.

“Why’d I go to law school?” he said. “Thank Mayor Abe Beame, who froze teacher salaries.”

He was counsel for the Major League Baseball Players Association in the 1980s and ’90s, when it was on a long winning streak against team owners. “It was the millionaires versus the billionaires,” he says. “After a while, I’m sitting there thinking, ‘He’s making $4 million, he’s making $5 million, and I’m worth about $1.98.’ ”

So he dived into a judicial race. He was elected to the Civil Court in 1998 and to the Supreme Court for Brooklyn and Staten Island in 2003. His wife is a Democratic district leader; their daughter, Elaine, is a lawyer and their son, Douglas, a police officer.Justice Schack’s duels with the banks started in 2007 as foreclosures spiked sharply. He saw a plague falling on Brooklyn, particularly its working-class black precincts. “Banks had given out loans structured to fail,” he said.

The judge burrowed into property record databases. He found banks without clear title, and a giant foreclosure law firm, Steven J. Baum, representing two sides in a dispute. He noted that Wells Fargo’s chief executive, John G. Stumpf, made more than $11 million in 2007 while the company’s total returns fell 12 percent. “Maybe,” he advised the bank, “counsel should wonder, like the court, if Mr. Stumpf was unjustly enriched at the expense of W.F.’s stockholders.”

He was, how to say it, mildly appalled. “I’m a guy from the streets of Brooklyn who happens to become a judge,” he said. “I see a bank giving a $500,000 mortgage on a building worth $300,000 and the interest rate is 20 percent and I ask questions, what can I tell you?”

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Tags: Audit, bailout, bankruptcy, borrower, brad keiser, credit, credit crisis, depression, FDG, Federal Bailout, foreclosure defense, Foreclosure Defense Group, foreclosure offense, foreclosures, Fraud, HAMP, lawyers, Lender Liability, Loan Mod, LOAN MODIFICATION, lost note, Mortgage, quiet title, rescission, respa, RICO, TILA audit

Categories : 2924, Cramdown, Foreclosure, I Have a Plan, bankruptcy, eviction

Countrywide complaint

27 06 2009

countrywide_fin_class_action_defense_mdl

Homecomings TILA complaint GMAC

27 06 2009

homecomingstila

Leman Tila complaint

27 06 2009

Lemantilacomp

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, bankruptcy, eviction, stop foreclosure, truth in lending

Lender class action

27 06 2009

Mortgageinvestorgroupclass

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, Loan Audit, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, bankruptcy, eviction, lis pendence, mortgage meltdown, stop foreclosure, usury

Option One Complaint Pick a payment lawsuit

27 06 2009

optionone

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Tags: stop foreclosure, civil code 2923.5, truth in lending, Mortgage modification, eviction, california, mortgage meltdown, Foreclosure, lis pendence, litigation, bankruptcy, Chapter 13, 2924, 2923.5, 2932.5, Recoupment, Fraud, Predatory Lending, FCRA, 2923.6, Real Estate Settlement Procedures Act, Uncategorized, California cram down, Audit, Countrywide, United First, usury, truth in lending 2923.5

Categories : 2923.5, 2923.6, 2924, FCRA, Foreclosure, I Have a Plan, Lender Class action, Predatory Lending, Real Estate Settlement Procedures Act, bankruptcy, eviction, lis pendence, mortgage meltdown, stop foreclosure, usury

Coalition sues lenders

9 05 2009

Coalition Sues lenders

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, Lender Class action, Loan Audit, bankruptcy, eviction, lis pendence, pedatory lending

90% Forclosures Wrongful

1 01 2010

Causes of Action

Wrongful foreclosure actions may allege that the amount stated in the notice of default as due and owing is incorrect because of the following reasons:

Damages Available to Borrower

Why Do Wrongful Foreclosures Occur?

Countrywide complaint

27 06 2009

countrywide_fin_class_action_defense_mdl

Homecomings TILA complaint GMAC

27 06 2009

homecomingstila

Leman Tila complaint

27 06 2009

Lemantilacomp

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, bankruptcy, eviction, stop foreclosure, truth in lending

Lender class action

27 06 2009

Mortgageinvestorgroupclass

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, Loan Audit, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, bankruptcy, eviction, lis pendence, mortgage meltdown, stop foreclosure, usury

Option One Complaint Pick a payment lawsuit

27 06 2009

optionone

Win the eviction by Summary judgement

27 06 2009

What is worse bankruptcy or foreclosure?

25 06 2009

Foreclosure is worse because of the loss of value. You will not receive any compensation for the equity in your home if it proceeds to foreclosure.

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, Cramdown, Foreclosure, I Have a Plan, eviction, stop foreclosure

Standing argument

7 06 2009

judge-youngs-decision-on-nosek

This is an excerpt from the decision just this bloggers note the Hanshaw Case was my case. I argued this case at the 9th circuit court of appeals

http://openjurist.org/244/f3d/1128/fj-v-emerald fj-v-emerald

Using the countrywide complaint in your own case

9 05 2009

Using the countrywide complaint in your own casecounrtrywidelanderscomplaintand countrywidelanders and word versionsCountrywide attorney general Complaint Form and templetsCountrywide Complaint Form

Coalition sues lenders

9 05 2009

Coalition Sues lenders

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Tags: 2923.5, 2923.6, 2924, 2932.5, Audit, bankruptcy, california, California cram down, Chapter 13, civil code 2923.5, Countrywide, eviction, FCRA, Foreclosure, Fraud, lis pendence, litigation, mortgage meltdown, Mortgage modification, Predatory Lending, Real Estate Settlement Procedures Act, Recoupment, stop foreclosure, truth in lending, truth in lending 2923.5, Uncategorized, United First, usury

Categories : 2923.5, 2923.6, 2924, FCRA, I Have a Plan, Lender Class action, Loan Audit, bankruptcy, eviction, lis pendence, pedatory lending