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New Century’s Mere Gesture can’t Overcome that pesky Due Process

Posted by on Apr 12, 2012 in Foreclosure, General Public | 1 comment

CORRECTION:  Brown v Seaman, the Court found that since the Debtor had placed ad in the local and “national editions of the New York Times, and the national edition was sold in her Philadelphia, the Debtor had met their Constructive Notice requirements.  It is important to note that Seaman’s, unlike New Century, placed ads in SEVERAL newspapers. Not just one national and one local.

During the bankruptcy, the debtor had published notice of the bar date in the New York Times, the Wall Street Journal, the Florida Times-Union, the Houston Chronicle and the St. Louis Post Dispatch. The Court held that this means of notice publication satisfied the due process clause since it was “in national publications and in newspapers of general circulation in areas where [the debtor] did business. . . .” Id. at 728 n. 2.

My apologies if I confused anyone.

New Century is paying its attorneys $100 to $300k MONTHLY to fight borrowers who are filing late in their bankruptcy.  Seems that the Constructive Notice issue is heating up and as pesky as the Trust may think “due process” rights are, all controlling case law shows that New Century’s “mere gesture” is a weak, weak argument.

When New Century launched its Constructive Notice Campaign the attorneys advised New Century that a ONE day placement in ONE national newspaper and ONE local paper would suffice.  Well, we shall find out after April 25, 2012.  After reading about 50 cases on due process I am really challenged with how Judge Carey can even began to contemplate letting  New Century’s constructive notice program be considered anything more than a mere gesture.

Starting with the cases quoted by New Century’s attorneys in their motion to have their Constructive Notice program sanctioned by the Court, the Trust references several cases as controlling case law in regards to the notification of the Bar Date.  All of these cases are distinguishable as those debtors in the cited cases acted beyond a “mere gesture” investing in programs that truly were designed to notice potential claimants.

For example, in Vancouver Health, the debtors quote, “that [a] bankrupt’s estate’s resources are limited and the bankruptcy court must use discretion in balancing [the interests of all creditors] when deciding how much to spend on notification” – however in Vancouver Health the debtors embarked on $4.5 million dollar global campaign to notify users of the Dalkon Shield of its potential harm, and THEN spent an additional 4 million (limit was  5 million) for the Bar Date Notification  itself.  This is significantly more than the paltry $12,000 the New Century debtors spent on their Constructive Bar Date Notification.  The debtors generated over 100 BILLION in loans…and all they could afford was $12,000 for the program – but can afford $100 to $300 THOUSAND dollars PER month to attorneys to fight borrowers.  Ummm…..yeah… can’t believe this will fly with any Appellate Court in the Country!

In Chemetron, the debtors published notification in both the Wall Street Journal and New York Times  as well as seven other local publications.  It is important to note that the majority of potential unknown claimants reside in or around a specific geographical area which were the targeted local publications.

In Best Products, the debtors published notification in the Wall Street Journal, New York Times, the Chicago Sun Times, the Los Angeles Times, and the Richmond- Times Dispatch as well as sent notification to 300,000 potential claimants.

In Gentry v Circuit City, Gentry was a former employee who sought to file a claim based on a class of claimants through a class action.  This is distinguishable from the case at bar as class action participants may go to the Wall Street Journal to seek information on the class action but here the borrowers are operating on an individual basis and would not seek sources  that report on class actions.

See Correction: In Brown, the debtors published notification in both the national and LOCAL editions of the Wall Street Journal – and in fact, in the Brown case it was the publication in the Local edition – NOT the national edition, that the Brown Court relied on in determining that Brown had received constructive notice from the Wall Street publication.

 In all of the cases New Century debtors have quoted, the publication efforts were significantly more than the mere gesture New Century put forth.  More on point would be to consider the Bar Date Notification efforts put for by other predatory lenders such as Washington Mutual.  In Washington Mutual the debtors ran notices (four and five times respectively) in the Wall Street Journal and New York Times, as well the Seattle and Seattle Post Intelligencer.  Washington Mutual had more than 13 ad placements – in comparison to New Century’s pitiful 2.

Now in desperation New Century has put together a listing of different news casts claiming somehow that also should be considered in their Constructive Notice program.  Small problem…most of the news casts were BEFORE the Court even knew the Bar Date.  So unless the Trust can submit some competent evidence that the newscasters were clairvoyant and divined the Bar Date – these news casts are wholly irrelevant.  Our Supreme Court has been very clear that it is not enough to know a company had started bankruptcy proceedings – the creditors needed to be informed of the actual Bar Date.  Period.

Between the damning Missal Report and its details on the “kick outs” and “scratch and dent” pools, and the lame 1 day ads placed by New Century – this situation is ripe for borrowers to throw a serious monkey wrench into the proceedings.  Stay tuned, oral arguments will be heard on April 25, 2012 in the Honorable Judge Carey’s Courtroom.

 

KEEP UP THE FIGHT!

Simonee

Simonee@infotofightforeclosure.com

 

 

Legal ramblings – winners and losers – the battle rages on

Posted by on Apr 12, 2012 in Foreclosure, General Public | 1 comment

The plain language of the law is not always what we think it is – as homeowners continue their battle against fraudulent loans and foreclosures the Courts are coming back with their interpretation of what the legislative intent is on the “statutes”.  Some of these interpretations are disappointing while others are exhilarating.    Ultimately these rulings bring clarity to a myriad of issues that better define the battle lines on what IS fraudulent and wrong; and what is legal.

CCC § 2932.5 DOES NOT APPLY to Deeds of Trust

Case:   Haynes v EMC

Case:  Calvo v HSBC

Case:  In Re Salazar – Initial  ;  CA US Nat Bank v Salazar Appeal

Last year, the Court of Appeals out of Los Angeles came out with a ruling in Calvo v HSBC, in which the Court determined that that CCC § 2932.5 does NOT apply to Deeds of Trust.  For many of us we felt that In Bank of Italy and Monterey SP Partnership v. WL Bangham, Inc., the California Supreme Court had determined that a Deed of Trust was “nothing more than a mortgage with a power of sale” meant that the statute DID apply to Deeds of Trust.

Recently, the Court of Appeals out of San Francisco (1st District, Division 4) in Haynes v EMC, issued a ruling that supports the Calvo findings.  The Court found that the plain language of  2932.5 refers to “mortgages and other encumbrances” – liens against the property, while a Deed of Trust passes “title” to a Trustee and is not a lien, therefore 2932.5 does NOT apply to Deeds of Trust.   As a result of the Calvo ruling, In Re Salzar, where the Court found 2932.5 DID apply, was reversed by the appellate district court.   (So stop using Salazar as a cite as it has been overturned!)

This doesn’t mean that an assignment does not have to be done, it DOES, it simply means that the Assignment does NOT have to be recorded in the land records.  As a legal strategy, the failure of the foreclosing entity to  record and acknowledge the Assignment of Deed of Trust is NOT a valid legal argument but HAVING an assignment is!  Typically the banks do file an assignment so you can still investigate that assignment and argue the truthfulness of the assignment, but whether it was recorded or not is irrelevant.  And if there is none recorded, demand a copy in discovery.

Wells Fargo Dinged $3.7 MILLION Punitive Damages

CaseIn Re Jones v Wells Fargo

It is always nice to see a bad guy get thunked on the head.  Not that $3.7m is a lot of money to Wells Fargo – but it is a message that the Courts have caught on to the unfair and deceptive business practices of Wells Fargo and their disgust is starting to show.  In two cases, in Stewart and In Re Jones, the Court found that Wells Fargo systemically misapplied payments resulting in unfair charges to the debtor.  Wells Fargo was commanded to correct their screwed up accounting but instead, Wells Fargo thumbed their noses at the court and failed to do so.  The Court calls Wells Fargo on their deceit by stating,  “Wells Fargo’s conduct was a breach of its contractual obligations to its borrowers.  More importantly, when exposed, it revealed its true corporate character by denying any obligation to corrects its past transgressions and mounting a legal assault [to] ensure that it never had to.”   Yep Judge, we homeowners have known how creepy Wells Fargo is for a couple of years now, glad that you have caught on.  If you are doing business with Wells Fargo NOW IS THE TIME TO STOP.  MOVE YOUR MONEY from this filthy company.       

Property Tax Seizure Creates Problems for the BANK not the homeowner

Case: NY Fidelity v JP Morgan Chase

This is an interesting little case courtesy of Charles Cox.  The homeowner failed to pay property taxes so the property was seized, the homeowner went back and paid off the taxes but during this time the lender had foreclosed on the property and sold it at a Trustee Sale – only problem is the government owned it by then.  So the tax sale stripped the lender’s lien; the homeowner went back and paid off the taxes and now apparently has their home back.  Crazy wacky world that we live in……

Deutsche Bank Loses in Hawaii – About damn time!

Case:  Deutsche Bank V Williams

Security trusts will no longer be able to hide behind the hocus pocus of the pooling and servicing agreements. The ramifications of this decision are extraordinary,” praises Gary Dubin.  Another classic case of Deutsche claiming that it doesn’t have to follow the PSA and it is none of the homeowner’s business.  This Judge gets it and stops it!  Great reading for anyone fighting against the henchmen of Deutsche Bank in their fraudclosures and for anyone who had a loan originated by New Century Mortgage, allegedly sold to Morgan Stanley.

We will be posting case rulings on a weekly basis…so stay tuned!

KEEP UP THE FIGHT!

Simonee

Simonee@infotofightforeclosure.com

 

Beating an Unlawful Detainer

Posted by on Mar 28, 2012 in Foreclosure, General Public, Slider | 2 comments

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

If Schack gets it why don’t our California Courts?

Posted by on Mar 20, 2012 in Foreclosure, General Public | 2 comments

Yesterday, March 19, 2012, Judge Schack went before the US House of Representatives Committee on Oversight and Government Reform. (Read Judge Schack Testimony) His testimony describes in detail, the abuses and fraud he is seeing being perpetrated by the National Banks and their army of well financed attorneys.  What he describes are not mere technicalities – documents filed out of sequence, an undated document, or some mere technicality that really caused no prejudice against the homeowner.  What he describes is out right theft and fraud.

                Schack oversees the about 20% of the foreclosure lawsuits that are filed in Kings County in New York State;  that represents 400 to 500 homeowners.   While he shares details of things that many of us are seeing in our wrongful fraudclosures – missing assignments, robo signers, an individual that signs by whatever title for whatever entity they need to sign for to get the asset to their real employer – what is telling is that in his discussions with the bank attorneys they admit “We have no idea who the investor is”.  

                If the attorney doesn’t know, who does and why is the identity of the investor not disclosed to the attorney who is representing them at the foreclosure, supposedly on behalf of the investor?  New York is a judicial foreclosure state; in order to get a judgment of foreclosure the judge must review and approve the paperwork.  Schack, God Bless this man, noticed irregularities and started asking questions even though the homeowners weren’t showing up for the hearings.   Here is his simple philosophy (page 2 of his testimony):

  • As a judge I am neutral
  • My role is to apply the law equally to all parties, on a level playing field
  • Due process of law must be followed
  • As a judge he took an oath to uphold the constitution – including “nor any state shall deprive any person of…property, without due process of law nor deny to any person within its jurisdiction the equal protection of the law.”

These are not novel, undeveloped concepts.  These are 100’s of years of law that our great nation was built on, so what does it say that the judges in California can’t be bothered?  We have those that DO care and DO take their oath seriously – but the majority does not.  I have read some interesting rulings – and there are some that the homeowner lost and frankly, I see why.  The pleadings are bizarre – I can’t even understand what the homeowner (or property owner) was saying much less grasp the grounds on which they lodged their complaint.  But there are others – mine included – where the judge failed to grasp the concepts and rather than investigating and educating themselves, they move it off their desk because it was just “too complex” to understand – ruling in favor of the bank based on whatever one thing it is they grasp. 

In my UD last year the Commissioner was so biased and prejudicial, he actually came out and said, ‘If the name on the TDUS is the same as the one on the complaint, then they have a right to evict”.  He didn’t say – “well if the TDUS is the same as the complaint, and you don’t dispute the validity of the TDUS” – his mind was made up; and when I DID contest the complaint and wanted to present evidence, he pulled the ole’ “Tender is required” card – which for the record NONE of the statutes (CCC §§ 2924 or 1161a) have a tender requirement.

As a non judicial state it is (well wasn’t) common for a foreclosure to come into court; the wrongful foreclosure action was rare and as such, I do understand that the judges are not experts in the foreclosure statutes much less securitization.  But does that excuse their bias towards the banks and lack of questioning what they are seeing?  If Phil Ting can get an audit done on records that show 84% of the records violate the law, why do these same documents and violations escape our courts?  (Read foreclosure-in-california-2-12 SF County)  If our Attorney General can say, “hey this fraud is not a surprise to my office or the homeowners in this state”, why is it a surprise to the courts?

MERS is fraudulent enterprise that has hidden the path of the Note – actually they don’t hide it, they just make up whatever path the Bank tells them to make up – but our California Courts recognize it as a legitimate enterprise.  If the bank is saying the Note was sold from originator to seller to aggregator to depositor to the REMIC Trust but the assignment from MERS to the REMIC Trust is all that is ever filed, isn’t that assignment a lie?

I have no answer as to why the California Courts are so eager to support the banks massive fraud in our great state;  I know not all of the Courts are but most do.  I do know that as a homeowner you have to have a cohesive argument that details the fraud – it can’t be allegations made up of from some wild theory you read or heard about.   The first step is having a valid, cohesive argument, the next is  getting the court to hear you; then you have to make sure that every time your due process rights are violated, every time the court does not apply the law “equally” you document it and fight it.   That is the only way we will turn the tide of massive fraud and demand that the judges in this great state remember and honor the oath they took. And i would definitely pull excerpts from Schack’s testimony as a gentle reminder to the courts of their oath.

KEEP UP THE FIGHT!

Simonee

Who owns my Note?

Posted by on Mar 10, 2012 in Foreclosure, General Public | 3 comments

For many Californians’ getting the opportunity to review the “original Note” is almost impossible.  Note (no pun intended) I said almost.  If you are being dual tracked by your bank (trying to get a modification while they are simultaneously foreclosing); or have been led down the modification path only to learn that you were a) denied by the investor; and b) are now in arrears because the monthly trial mod payment was less than the regular payment then now may be a good time to consider taking legal action against the servicer and its partners in crime.  One of the first steps you need to take is to get a copy of the Note and find out who is claiming to be the current owner.

                Many people are under the mistaken belief that in order for the servicer to foreclose they have to produce the Note.  The servicer has to be collecting payments for the entity that owns the Note but they are under no obligation, in non judicial states, to produce the Note to foreclose.  That is a BIG difference.  If you want to see if they have the Note, and what the current state the Note is in, there there are two statutes (laws) that will assist you.  The first law, California Civil Code of Procedure § 2943 (5)(b)(1) mandates:

 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.

This code says they only have to give you a COPY of the Note. Which may or may not be a copy of its current state (i.e. the indorsement on the Note).   You can write your servicer and demand a copy of your Note, and cite to the above California Civil Code.  When you receive the copy it should tell you it is a “true, correct and complete” copy of the Note.   As to what the “modification” thereto is, one would think any modification to the Note whether that be any riders changing an aspect of the Note and an indorsement – which can change the Note from a Made to Order Note into a bearer instrument (which is anoter area of argument) would be included in the copy – but these Servicers are reluctant to produce this information and many times it is from the Title copy when the Note was first signed. 

To find out who the current OWNER is (and you can include this with the letter requesting a copy of the Note) cite to the new revision to TILA enacted in 2009.  Under the Truth in Lending Act, or TILA, the government has stepped in and told servicers that upon written request they must provide general investor information to the borrower.  Write a letter to your servicer, citing 15 U.S.C. § 1641(f)(2), a provision of TILA, and request that the servicer provide the name, address and telephone number of the owner of the mortgage. They are required by TILA to respond to you within 10 business days.  If they choose not to reply to this request, 15 U.S.C. § 1640(a), coupled with the Helping Families Save Their Homes Act of 2009, allows for recovery which can include actual and statutory damages, costs, and attorney’s fees.

 There are other ways to find out who is claiming to own your Note if MERS is on your Deed of Trust and/or you have a Fannie Mae/Freddie Mac loan.

 

MERS – if MERS is involved in your Note and/or Deed of Trust/Mortgage, then your documents will have a MERS ID number.  Go to www.mers.com  and enter either your MERS ID number, or property address.  MERS will then provide the name of your Servicer and the investor who owns your Note. 

Fannie Mae/Freddie Mac:  Go to the following sites and enter your information to source the owner of your Note.

http://www.fanniemae.com/loanlookup/

https://ww3.freddiemac.com/corporate/

Finally, one other place you can look is at the County Recorder’s office.  See if any assignments of Deed of Trust have been recorded since you originally recorded your Deed of Trust.  That assignment will show who is claiming ownership of your Note.  (And just because they are claiming ownership doesn’t mean that they do actually have any ownership rights).

                These are a few ways to find out who is claiming ownership of your Note.  And this is the first step in stopping a wrongful foreclosure. So the sooner you request this information the quicker you can start planning your legal strategy to stop the fraudclosure.

 

KEEP UP THE FIGHT!

Simonee

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