Balancing the Scales of Justice for Pro Se Homeowners


Does/did the Notice of Default Comply with Paragraph 22 in your Deed of Trust?

Posted by on Sep 6, 2012 in Foreclosure, General Public | 3 comments

Have you ever sat down and read your Deed of Trust?  If not, now would be a good time to do so; and if yes, now would be a good time to read it again.  And I would encourage you to read paragraph 22 – in detail.

In many of the Deed of Trust instruments paragraph 22 is about the acceleration of the Loan based on a “default” and what is expected of all parties involved in the acceleration process.  Specifically, many of these Deed of Trusts contain a line that states,  “…the Notice shall inform the borrower of their right to bring forth an action to dispute the default and any other defense against the acceleration and sale”.

Now read your Notice of Default.  Does it not state, “you have the right to  request a  itemization of the amount of default” (or some variation)…and then in another section state, “after the date of expiration your only legal recourse is to pay the loan in full”?  READ THE ENTIRE NOTICE OF DEFAULT… do you see anything in that Notice that informs you of “your right” to bring forth an action disputing the default, or any defense against the acceleration and sale?

Now some people claim this is a “condition precedent” within the contract.  What is condition precedent? According to

                condition precedent

n. 1) in a contract, an event which must take place before a party to a contract must perform or do their part. 2) in a deed to real property, an event which has to occur before the title (or other right) to the property will actually be in the name of the party receiving title. Examples: if the ship makes it to port, the buyer agrees to pay for the freight on the ship and unload it; when daughter Gracella marries she shall then have full title to the property.

Google this term – investopedia, Webster, all of them pretty much say that a condition precedent is an event that has to occur before the title (or other right) to the property will actually be in the name of the party receiving title.    YOU MUST BE INFORMED OF YOUR RIGHT TO SUE THE BASTARDS BANKS before they can foreclose on you and take title to your property.

One could argue that if the Notice of Default FAILS to meet this condition precedent, then it is not legally sufficient and leaving it on the title could damage the homeowner’s interest in the title (as well as the homeowner’s credit reputation) and therefore should be cancelled and REMOVED from the County Recorder’s records.

This of course, means that you will have to bring forth an action against the parties who filed and recorded the Notice of Default.  One could also argue that since the Trustee and the “beneficiary” filed a defective Notice of Default and therefore did not comply with CCC Section 2924, their actions are not privileged by Cal. Civil Codes §§ 47 and 2924.   Now that should make for some really interesting discussions.

This is not a silver bullet by any means, but it is an interesting arrow  and should be one of the many arrows in your quiver to pierce the corporate mumbo jumbo shell game these banks and government entities are playing.   Stay tuned, we have more detailed info for paid members that include samples of other homeowners successfully pleading this argument and supporting case rulings.



Beware of Legal Mythology!

Posted by on Aug 6, 2012 in Foreclosure, General Public | 0 comments

Beware of Legal Mythology!

Dr. Graves, author of Jurisdictionary shared another insightful email this morning.  He always seems to have his pulse on the musings and doings of pro se’s, recognizing those very things that can trip us up and prevent us from having our day in court.  I have heard of some of these myths being perpetrated and find it fascinating that individuals that count on these myths are stumped and stunned when they lose their case.

From Jurisidictionary:

Many today are angry at our justice system.

Many have good cause to be angry!

Some, however, are too angry!

Their anger will hurt you!

They are blinded by their anger!

You’ll recognize them by the anger. They are not your friend! Their “legal theories” fail. They are blinded by rage. Believe them at your peril.


An angry fellow called to scream obscenities at me because I refused to agree with him that our birth certificates are some kind of “contract”. The fundamental truth about contracts is that they cannot bind anyone who doesn’t understand the agreement. Besides, we certainly didn’t sign the thing! We can’t be bound by a contract we don’t understand and didn’t sign. Yet, this man screamed at me for refusing to help him fight his dragons!


Another angry person called insisting she had “copyrighted” her name so the courts couldn’t use her name on official papers. To think one can prevent others from using one’s name by “copyrighting” it is utter nonsense. Anger twists the mind in strange ways!


Some are convinced our courts are “admiralty courts” and cannot rule in common law or statute, all because there is a yellow fringe on the courtroom flag. This lie has been promoted for years by angry people that don’t know (or don’t want to make any effort to know) the truth.


Many have made a “religion” out of believing such lies. Some claim to be “patriots”, yet do all they can to evade the Rule of Law and refuse to do anything toward learning the principles of due process so many gave their lives to protect in past and present wars!


Thousands share emails and hover around the radio to hear commentators tell them how horrible things are and how much worse they soon will be, yet only a handful talk about how to make things better by exercising your “law power” in court!  (Though I do think the worse is yet to come with our economy – we have yet to hit the bottom from the unmitigated greed of wall street and their banking partners)

I know people are hurting. We’ve helped tens of thousands of hurting people to get justice in the courts since 1997 when we launched Jurisdictionary on the web.

Do you want to know how to get justice in our courts and honor the sacrifices of millions who died so you would have the “law power” you need to overcome corruption?

Are you ready to begin?

Click here to purchase your Jurisdictionary and learn how to follow the Rule of Law to WIN your case!





Is PIte Duncan gaming the system for Freddie Mac through forum shopping?

Posted by on Jul 23, 2012 in Foreclosure, General Public | 8 comments

Those folks over at Pite Duncan must think its Christmas because they are sure into shopping – forum shopping that is.  I sure would like to understand how Pite Duncan can file Notice of Removal, based on Freddie Mac being a “federal agency”.  Ignoring the state claims of the action; yet they file UD’s in the state court all the time, based on the only cause of action being a state claim.  Are the folks at Pite Duncan confused or forum shopping?

Two weekends ago I had one member send me a “Notice of Removal” on their state complaint (that has ONLY  state claims) to Federal Court based on Freddie Mac being a “federal agency”, while another member had the Federal Court questioning why a State Claim complaint (Unlawful Detainer) filed by Freddie Mac should be removed to Federal Court.  Both cases are state only claims, and both cases involve Freddie Mac.  Why is Federal Court appropriate for one and not the other?

If what Pite Duncan argues, that Freddie Mac, under Title U.S.C. § 28 is considered a “federal agency” and Federal Courts have jurisdiction based on Freddie Mac being a federal agency and should hear all complaints (whether they are plaintiff or defendant), then why aren’t they filing their UD’s in Federal Court?  Is this forum shopping?

In the first member’s case, I suspect that Pite Duncan has done the Notice of Removal with the intent to file a Motion to Dismiss within five minutes, based on the complaint having NO federal claims.  Now some people are saying..Hey that is fraud upon the court! Not sure that it rises to fraud upon the court but the removal is being done in bad faith and I think it DOES warrant sanctions.   Especially when Freddie Mac argues it IS NOT a Federal Agency when it benefits them (and they argue this both ways under U.S.C. § 28)

It is my understanding (and would love comments on this understanding) that Federal Courts automatically have jurisdiction on any legal proceedings concerning a “federal agency” or “officer” under Title 28.   One could argue that the lawsuit should have been commenced in the Federal Court in the first place, and that the Plaintiff’s should have pled federal claims; others may argue  this is a clever procedural maneuver where the Plaintiff is beat procedurally before the merits of the case are even considered.   I think it is a disgusting move and from what I understand, Pite Duncan does it routinely.

Personally, I will go with the 9th Circuit Court’s finding.  I found an interesting case in which a Servicer who had been collecting mortgage payments for Freddie Mac was terminated by Freddie Mac.  The Servicer, ABM, argued that Freddie Mac was a Federal Agency and therefore  the Federal Court had jurisdiction; Freddie Mac argued they WERE NOT A FEDERAL AGENCY.  Huh?  Yep.  I swear.  Read it here.

In AMERICAN BANKERS MORTG. v. FEDERAL HOME LOAN MORTG., 75 F. 3d 1401 – Court of Appeals, 9th Circuit 1996, the Court found that Freddie Mac is not a government agency.  The  9th Circuit analysis  found that “ABM argues that Freddie Mac is a federal agency because 12 U.S.C. § 1452(f) provides that the corporation “shall be deemed to be an agency included in sections 1345 and 1442 of … Title 28”. Those sections of the judicial code grant federal district courts original jurisdiction over suits “commenced … by any agency”, 28 U.S.C. § 1345, and removal jurisdiction over suits “commenced in a State court against any … officer of the United States or any agency thereof”, 28 U.S.C. § 1442. The fact that Congress felt it necessary to provide in Freddie Mac’s governing statute that the corporation shall be deemed an agency under those provisions–“[n]otwithstanding section 1349 of Title 28”, 12 U.S.C. § 1452(f), which provides that mere federal incorporation shall not confer federal jurisdiction–demonstrates that Congress did not believe that Freddie Mac was an “agency”, at least for Title 28 purposes. Further, federal jurisdiction for suits for or against the corporation is only one factor to be considered in determining the governmental purposes and control of a federally chartered corporation.”

The 9th Circuit Court goes on to analyze the structure and governance of Freddie Mac, determining that its additional Directors and Shareholders would not qualify Freddie Mac as a government agency.

 I wonder how many people get this Notice of Removal and then a quick Motion to Dismiss, who don’t even know they can OPPOSE the Notice of Removal and Request for a Remand back to the State Court?  There are pros and cons to litigating actions in both State and Federal Courts; the Court’s recognize that the Plaintiff is the “master of the claim” – The “well pleaded” complaint rule makes the plaintiff the “master of the claim” for purposes of removal jurisdiction. This means that, absent diversity, a case is removable only where a federal question is presented on the face of plaintiff’s petition: “The party who brings the suit is master to decide what law he will rely upon.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, fn.7, 96 L.Ed.2d 318 (1987). Thus, where a plaintiff could maintain claims under both federal and state law, plaintiff can prevent removal by ignoring the federal claim and alleging only state law claims

If you have done your homework and for whatever reasons, determine the State Court is where you want to be, then don’t let Pite Duncan or Freddie Mac or Fannie Mae dictate WHERE your litigation will take place. Fight back!

and if you need help fighting a Notice of Removal and/or Remand to State Court, let us know.  We will share what we know!





[Note from This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by city, county, state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither, or any of its affiliates, shall have any liability stemming from this article.]


Wins for Homeowners in the Battle with the Banks! July 2012

Posted by on Jul 23, 2012 in Foreclosure, General Public | 8 comments

There have been some interesting developments in the fight against fraudclosure, especially with Herrera v Deutsche Bank (not to be confused with Herrera v US Bank) and Skov.  Both cases  have brought about some interesting discussion surrounding the contents of the fraudulent (my description) documents the Banks use to wrongfully foreclose on people’s homes.   Alas, not all wins are in favor of the homeowner, the Banks continue to defend their fraud with massive dollars being spent on top tier (and bottom tier) law firms.  However, this blog, for today, will focus on the WINS..cuz’ we can all use some good news!

Keep in mind the first two are “partial” publications, so you can only cite to those parts that are published; and the 3rd one is unpublished.  But you can read’em and learn from ‘em!  ENJOY!

Herrera v. Deutsche Bank National Trust Co., 196 Cal. App. 4th 1366 – Cal: Court of Appeal, 3rd Appellate Dist. 2011   This case is fascinating in that the Court of Appeals (3rd District is located in Sacramento and   Its jurisdiction is over the following counties: Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo, and Yuba.) discusses whether a Court can take judicial notice of the “contents” of the documents recorded in the County Recorder’s office. Hmm…what a novel thought… it seems like most people report that the Judge’s think that if the document is “recorded” then it is “truthful”.  Not sure under what law they make that determination but clearly the Judge’s over in the 3rd District don’t agree.   Bottomline 3rd district is saying “Recordation is not a substitute for evidentiary proof of the truth of the facts asserted in a recorded document

Roger Bernhardt, a professor over at Golden Gate University (I am a raving fan of his legal reasoning)   also has weighed in with his thoughts (and discusses how this ruling could have had a different outcome if the declaration had been done by a different liar   entity’s employee)  (Click here for his blog)  Definitely toggle on over to Google Scholar and get the complete ruling, then supplement your reading with Bernhardt’s evaluation.  Both contain invaluable lessons!

Next up is Skov v. US Bank National Association, Cal: Court of Appeal, 6th Appellate Dist. 2012  another homeowner win.  (6th District is located  in San Jose and has jurisdiction over the following counties: Monterey, San Benito, Santa Clara, and Santa Cruz). The Court deals with Judicial Notice of the “truthfulness” of recorded documents, like in Herrera, but also deals specifically with CCC § 2923.5 and MERS. )

Here the Court recognizes MERS (banks alternative to  scamming tracking homeowner’s deeds of trust)  as being allowed to initiate the Foreclosure.  Ndex West (a non biased, non independent 3rd party Trustee) signed the Notice of Default as an “agent” of MERS, the beneficiary under the Deed of Trust.  Doesn’t matter how many homeowners file to argue the right of MERS to initiate the foreclosure…this IS NOT GOING TO CHANGE.   Haven’t we learned from Gomes, Gomez and Robinson yet?  Come on people… our Judicial community has sanctioned this blatant disregard for our land records ….. focus on those things you CAN win on.  You know..fraudulent Notice of Default, fraudulent assignments, substitutions of trustee, etc.

SALUTO v. DEUTSCHE BANK NAT. TRUST CO., Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 2012  Another homeowner win that one can only call “PRICELESS”.  (  2nd District main courthouse is in Los Angeles. The secondary courthouse, hosting Division Six, in Ventura. Division Six handles appeals from San Luis Obispo, Santa Barbara, and Ventura Counties, while Divisions One through Five, Seven, and Eight handle appeals from Los Angeles County)  No one explains what happen with this case better than Martin Mandelman over at Mandelman Matters (See here to read his take on the whole thing)  I have to say I take extra sweet pleasure in this case given that Deutsche Bank National Trust Company trotted out it’s POS Vice President Reynaldo Reyes – famous for his ability to lie without speaking an untruth.  While this is an unpublished opinion it is an interesting study in both filing for a Quiet Title through a default judgment, and a true example of bank stupidity.  God Bless Saluto..enjoy your home lady, you deserve it!  (Keep in mind this ruling is not published so you can’t cite to it, but you can certainly learn from it!)





You have lost the fight and the bank has acquired a Writ of Possession…now what?

Posted by on Jul 8, 2012 in Foreclosure, General Public | 6 comments

You have lost the fight and the bank has acquired a Writ of Possession…now what?

**This is for homeowners after a foreclosure/fraudclosure who have lost the Unlawful Detainer either through fighting the UD or by ignoring it;  tenants rights are different and not reviewed in this article.

First, no bank or new property owner is allowed to “self help” themselves in removing you from the property.  The COURT must grant the alleged new property owner a writ of possession that can only be executed by a law enforcement officer (usually the County Sheriff and/or one of his personnel),and the Court can only grant a Writ of Possession AFTER the party has received a JUDGMENT.  The law is very clear that eviction can only take place when proper court procedures are followed. (See California Eviction Process by California Consumer Affairs)

A Writ of Possession is posted by personnel from the Sheriff’s Department – not a legal firm, not a process server.  It is NOT a Notice to Quit or a Notice to Vacate; it is not even the Unlawful Detainer Complaint itself[1].  The document is called “Writ of Possession” and when this is posted to your door..TAKE IT SERIOUSLY and pack to move.  It typically gives you FIVE days to remove your belongings from the house before the lock out.

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What is a lock out? This is when the Sheriff shows up with a representative of the bank/new property owner and a locksmith.  The locksmith will change ALL the locks to the property and turn the keys over to the representative and/or new property owner.  You are officially barred from re-entering the property without the presence and permission of the now official “property owner” and you must LEAVE THE HOUSE while the Sheriff is present.

At this time the new property owner can hire its own personnel to come and remove your belongings and store them until you are ready to retrieve them.  (You are responsible for the property owner’s costs to remove and store your possessions)   The new property owner cannot “trash” your belongings..they are required during the first 18 days after the lock out to store them so that you can retrieve them.  However, it is NEVER RECOMMENDED you wait for the property owner to do so.  The maximum penalty for the property owner ignoring the law is $250 dollars….so not a lot of financial incentive for them to properly store your belongings, in fact there is more incentive for them to trash out the house and just pay you the check for $250 dollars. (Which they could probably deduct from any damages they are entitled to from the judgment…as you can see this can get messy and ugly very quickly).

If you have lost the unlawful detainer (either you fought it and lost it; or you ignored it) – and you cannot get everything removed in that five days, then a MAKE A PHONE CALL to the property owner.  Agree to meet them for the Lock Out – and make arrangements to have a moving company (or you with moving trucks) to remove whatever remains at the property.

DO NOT IGNORE THE WRIT OF POSSESSION…the Sheriff WILL SHOW UP and they WILL REMOVE you from the property.  But do not panic and leave your possessions or pets behind.  COMMUNICATION will become critical and the only communication that will assist you in getting everything removed is a phone call to the property owner.  They will not give you another week or month…you need to be prepared to have the moving company as close to the day of the lock out as possible – and if you need seven or eight days instead of five, the only way you can get the additional time is by calling the property owner and asking them to schedule a time for the moving trucks (well you do the scheduling but you will need to coordinate the time/date with the property owner).

Depending on how contentious this process has been, it is possible to arrange a moving schedule that minimizes the costs to the new property owner while at the same preserving your belongings.  Just do not expect the property owner to give you more time because you or a family member is sick, out of town, etc.  This is serious business and at this time must be your number one priority or you risk losing what is left in the house …forever. [/ismember]




[1] To fully understand the Unlawful Detainer process and how to fight it, please see our California Homeowners Fighting an Unlawful Detainer. 



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