Balancing the Scales of Justice for Pro Se Homeowners

Beating an Unlawful Detainer

Posted by on Mar 28, 2012

Beating an Unlawful Detainer

Last year, I like many other homeowners, hit the wall as I went down in flames attempting to beat an unlawful detainer against the thieves we know as the “bank”.  I was truly stunned at how the Commissioner simply rubber stamped the fraud and gave possession of my property to strangers.  Though I went down in flames, I was not and am not defeated.  The manner in which the UD was handled is one of the reasons I decided to become a homeowner advocate and focus on helping others do what  I did not do – stop the theft of their home by total strangers.   (And for the record, I have appealed the UD as well because the Commissioner was biased and made several errors in his rulings).

In California, a stranger can create any land record document and file it in the land records; when they file that document it becomes prima facie evidence and the Court assumes the contents of the document are true.  As these banks railroad homeowners by leveraging the ignorance and incompetence of our county recorder offices, the Courts roll over and rubber stamp the fraud by claiming – its conclusive!  It was recorded at the county recorder’s office! And if you want to argue it, pay the full debt to these strangers.   This is by far the stupidest process I have ever seen; you just can’t make this stuff up.

As the county recorder sleeps on the job – I mean seriously, what the hell do they do other than file paperwork?  How much time would it have taken the county recorder clerk to look up my deed of trust and see that the firm filing the Notice of Default was NOT the beneficiary named on the Deed of Trust?  How much time would it have taken the clerk to look up my Deed of Trust and see that the company who was filing a Substitution of Trustee was NOT the beneficiary named on the Deed of Trust? Why do I have to fight this fraud by filing a lawsuit?   I would love comments from anyone with an opinion on this.

As I have talked with other homeowners, many that have lost the UD, I have also talked with those who have WON the UD.  The common scenario for those that lose is as follows:

Bank Attorney shows up, has the realtor confirm they have been hired by the Plaintiff to market the property and to confirm the homeowner is still present on the property; then the Attorney asks to enter into evidence the TDUS and Quit Notices.

Hapless Homeowner, ready to produce evidence that the Trustee is NOT the proper Trustee and the Beneficiary named on the TDUS is NOT the proper Beneficiary – the rubber stamping judge or commissioner says, “now hold on there, if you want to present that evidence you have to issue Tender of the full debt listed on the TDUS”.   HUH?  “But you honor, that TDUS names the wrong parties” As the homeowner tries to argue the tender issue the Plaintiff’s attorney stands there like a happy little clown as the Court argues with the homeowner (who is usually self represented), knowing that he is minutes away from getting judgment for the bank.  And yes, within minutes, judgment is found for the Plaintiff.

For those homeowners who have WON the common scenario is as follows:

Bank attorney shows up, has the realtor confirm they are hired by the Plaintiff, the owner of the property.

HOMEOWNER:  OBJECTION!  – How does the realtor know the Plaintiff is the owner?  That is hearsay your honor! Was the realtor at the actual Trustee sale?

REALTOR: Sputter – sputter—well my broker

HOMEOWNER: OBJECTION!  That is hearsay your honor. 3rd person testimony is inadmissible as hearsay.

So the bank attorney has the realtor confirm they have verified the homeowner is present on the property – and then he proceeds to ask to enter the TDUS as evidence.

HOMEOWNER:  OBJECTION!  Your honor according to California evidence code § 403 and § 1271- that document is hearsay.  All that certification proves is it was recorded – it does not prove the contents within the document.  I object to the recitals as hearsay and demanded to hear testimony from someone with personal knowledge on the authenticity of the contents.

BANKS ATTORNEY:   – but, but..uh….that document is conclusive.   It is a business record.

HOMEOWNER:  OBJECTION! No it is not, the only conclusive thing about that document is that it was recorded.  I again object that the recitals within the document are hearsay.

BANK ATTORNEY:  Well I would like the Court to take judicial notice

HOMEOWNER:  OBJECTION! The only thing the Court can take notice of is that the document is recorded; it can not take judicial notice of the truthfulness of the contents as they are hearsay.

JUDGE- well big shot bank attorney, do you have someone present who can testify to the contents of the document?

BANKS ATTORNEY:  – well no your honor, I request a continuance so I can get someone.

HOMEOWNER:  OBJECTION your honor.  The Plaintiff insisted on this hearing on this date – pushing to get this done quickly.  I respectfully move for judgment in favor of the defendant for failure to meet their burden of proof under § 1161a.

Hmmm…there really is truly real value in KNOWING the rules when it comes to the Court.  Here all this time I thought the rules were all about formatting the pleading, timing of filings and hearings, blah blah blah.  “FACTS are different from evidence; a FACT may only considered if it is entered as evidence”   I love evidence codes.

The Unlawful Detainer is a complex area of law right now – many rulings have most of us scratching our head going, “huh?”  But instead of getting lost in all the legal mumbo jumbo and case law, perhaps just a quick gander at the very basics of the law will help a homeowner win.  How many TDUS are signed by someone within your state?  Every document that has been signed in my fraudclosure is signed by someone out of Texas or South Carolina.  THOSE are the ONLY people who can testify to the contents of those documents.  How different would the outcome of the UD have been if I had employed the very basics of evidence codes?

If you, or someone you know, is facing a UD or getting ready to face a UD because the Trustee Sale is looming – then have them buy our California Homeowner Fighting and BEATING an Unlawful Detainer.  The 75 page manual explains the UD process in common every day words; explains the basic statutes governing the UD, and provides a roadmap of how to fight and BEAT the UD at trial.  Included is an excerpt of a trial following the above winning scenario when an attorney for the homeowner argued the evidence codes and got the TDUS knocked out.  It will be the best $39.99 you have invested in this whole freaking mess.

Click here for a preview of our Book:  UD Preview_Pages

 

California Homeowner Beating Unlawful Detainer
California Homeowner Beating Unlawful Detainer
This in-depth look at the eviction process after foreclosure gives homeowners serious considerations in beating the banks from stealing their home through an unlawful detainer. Includes current, leading case cites along with how to do Motion to Quash, Demurrer, Answer and prepare for trial.

KEEP UP THE FIGHT!

Simonee

2 Comments

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  1. Christian

    … I guess paying dbolue for groceries, housing, and energy don’t count as inflation. In your imaginary world what color is the sky? Double for housing? Hmm here I was thinking housing is crashing. Which is it? Only in HP world can housing cost dbolue and be crashing at the same time. Double for energy? Oil’s down $20 from it’s summer peak. Gas is under $2 for morst of the country. Groceries? I rarely buy any so I can’t really comment. See unlike you $8 an our renters, I don’t give a damn if milk goes up ten cents. ———————————–Come on man, don’t play with his words. You know what he meant. Housing HAS dbolued in many of the “bubble” areas compared to 5 years ago. Oil HAS dbolued in price as well. Groceries are much higher than when I was in college, which was pretty recently. (~4 years ago)I am certainly NOT an “$8 per hour renter” as you so arrogantly put it. Actually I make about $20 more an hour than that.I am a younger professional who entered the workforce just as all this madness was getting underway. I also have a well-paying job, which unfortunately happens to be located in one of the so-called “bubble states”. (AZ)Even with my wife and my six figure incomes, we still can’t afford a house here without completely exhausting our personal savings accounts, which I wouldn’t dream of doing. Don’t even bring up the toxic loans out there, I simply refuse to get one of those.The rent-to-own ratio here is completely out of whack. There is no way it can sustain current levels, when someone like me can’t even afford to buy a home here. I can’t imagine what some of the blue-collar folks in this town must have to do just to make their mortgage payments every month.We are renting a brand new house here for $700+ less per month than it would cost to buy the same house. You are delusional if you think this is normal.

  2. A.E. Sanchez

    CTL

    The specific actions brought on by this trustee continue to inflict great harm
    and suffering to those involved. It is my understanding as well as the law that
    anyone acting as a Trustee must perform with the highest level of ethics and
    morals (standards of conduct) one of the fiduciary responsibilities include
    making all mortgage payments and is required by law.
    Supporting evidence shows multiple loans have been taken out against the trust
    to cover expenses come to find out mortgage payments have not been made in
    months on either of the two properties which was never brought to any ones
    attention. The property located on Herman Avenue in San Diego California
    92104.
    Subject property has been my home for the last 10 years. November 14 of 2003 I
    closed on this property as new construction was complete. The original purchase
    agreement and down payment we’re in place as of June 2003 for new construction.

    In 2009 a dear friend and employer at the time (now deceased) had agreed to
    purchase my home so that I could remain housed. Due to the progression of my
    disease HIV/AIDS which was advancing rapidly causing unforeseen hardship.
    However I had worked for my friend (now deceased) for a number of years in
    which I helped care for this very estate.

    As it is known by all parties involved that at any time I could repurchase my
    home at the sale price in which my friend paid for it in 2009 if and when I
    should be able too The agreement and intent was that I would have a life estate
    regardless of being able to repurchased the home or not. The trustees actions
    strongly suggest discrimination against my lifestyle and being HIV positive.
    Although this trustee is well aware of all underlying factors involving ‘my
    home’ and the progression of my disease the adverse actions continue to spiral
    out of control. And continues to disregard my existence and has made no effort
    towards a remedy reasonable or otherwise.
    Perhaps the consideration and option to repurchase my home rather then to
    dispose of me and intentionally forcing me in harms way and with no regards.

    I assure you Kevin’s (deceased friend) intent and wishes were that I remain in
    my home that was the sole purpose that he had purchased ‘my home’ and in hopes
    that the progression of my disease would slow down. Unfortunately this is not
    the case and I have no resources left and nowhere to turn to.

    May the Angels hear me asking for a miracle!

    Destitute,

    A. E. Sanchez

    https://www.change.org/petitions/trustee-intentionally-bullies-to-dispose-of-lif
    e-tendency?utm_campaign=mailto_link&utm_medium=email&utm_source=share_petition==
    ===========

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