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Ignoring a Summons and Complaint Guarantees YOUR loss – STOP THE LYING SOB’s

Posted by on Dec 19, 2012 in Foreclosure, General Public | 1 comment

Today I received a call from a friend.  He shared how several weeks ago a homeowner had received a notice from the Court about an Unlawful Detainer being filed against them.  They came home a couple of weeks later and found an unstamped summons and complaint sitting in their mailbox, with no postage and no US stamp.

For those of you who follow Unlawful Detainers (or are about to) – service of the Summons and Complaint needs to be done in person.  In order for the process server to “drop it off” at your porch or post it to your door the process server must first attempt to “serve” you; then after their “due diligence” seek the Court’s approval, via a signed order,  to do a “post and mail” service.  (i.e post it to  your door and then mail it first class).  Anything varying from this is “improper service”.  (Sticking it in the mailbox is actually a federal offense!)

In this particular case, the homeowner checked with the Court and there was no order for post and mail; so they did nothing.  The Plaintiff sought, and received, a default judgment.  No surprise but now the homeowner is freaked because they never got a chance to “defend the action”.   Uh well actually, yeah, they did but they did nothing.  How would the Court know it is improper service if no one tells the Court? The only person talking to the Court is the Plaintiff – your silence is your agreement with what the Court is being told.

The above scenario is the whole purpose of a motion called a “Motion to Quash”.  The defendant files a Motion to Quash as a “specially appearing defendant” claiming that the Court has NO jurisdiction over them since service was improper.  But the ONLY WAY THE COURT WILL KNOW THIS IF YOU TELL THEM THIS. “Even when the defendant tenants (and/or subtenants) actually received summons and complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was not served in a statutorily-authorized manner”. Schering Corp. v. Super.Ct. (Ingraham) (1975) 52Cal. App. 3d 737, 741.

In this particular case the process server put it in the mail box and then claimed “actual personal service”.    They filed their “proof of service” and requested the “entry of default” on the SAME day.  The homeowner should have filed the Motion to Quash on the day they found the summons (or the next day)– and stopped these people in their tracks.   By ignoring the complaint they gave the liars another opportunity to mislead the Court and now the homeowner is further behind the eight ball because now they have to seek to get the default set aside.  Not a pretty place to be.   Getting the default set aside should be a no brainer but the reality is whether the default will be set aside is at the “discretion of the court”.  If you get a Judge who doesn’t want to be bothered, you run the risk of never getting your day in Court.

If you get a Summons and Complaint – don’t ignore it.  If it was improperly served do a Motion to Quash; if you don’t then the lie will continue right into a writ of possession that removes you from your home.    There is a sample template of a Motion to Quash in our Documents for paid annual members, please make use of it if you find yourself in this situation.

 KEEP UP THE FIGHT!

Simonee

 

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The information contained in this web site and eBooks, infotofightforeclosure.com, is provided as a service to the Internet community, and does not constitute legal advice. We try to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site.  As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel. Info to Fight Foreclosure is not a law firm and nothing contained in this site should be deemed an endorsement or recommendation by infotofightforeclosure.com  of any attorney or firm listed in this website.

 

 

OVERCOMING FORECLOSURE

Posted by on Dec 12, 2012 in Foreclosure, General Public | 0 comments

Do not walk, RUN to your local Barnes & Noble store, or click onto Amazon and purchase Norman Sirak’s “Overcoming Foreclosure”.   “The web of deceit required for converting mortgages into securities is so sophisticated; it makes the Mafia in the Godfather look like amateur hour.  In addition to challenging foreclosures, this book also exposes the unlawful and predatory mentality driving this scheme”   Sirak does what the standard foreclosure sites, even this one, does not do – it provides a clear understanding of what the hell the Banks and Wall Street suits have done in very clear, easy to understand terms.  Drawing parallels to everyday occurrences that resonate with the average “joe” – Sirak tells us like it is and then tells us how to attack these illegal foreclosures resulting from the predatory lending and servicing shenanigans of the banks.

One of the most fascinating statements he makes is “A shell company will be invented and then added as a party to every mortgage and deed of trust”  Sound familiar? MERS may be named as the “permanent beneficiary” but the reality is that MERS obscures the transfers and the simple fact that the “mortgage and/or deed” ended with the REMIC Trust whose funds were used to fund your loan.   And it isn’t just MERS – Homes 123 and New Century Mortgage were “shell companies” as was America Wholesale Lender.   Any mortgage and/or deed that was securitized is subject to challenge as the true lender/creditor was never disclosed to the borrower – and this book explains this and how to fight their insidious greed that has and continues, to destroy  American homeownership.

 If you are like me, you will put this down, stamp your feet, pick it back up and read some more, then put it back down and stamp your feet.  And if you are tempted to skip right to the Quiet Title action and  how to pursue your claim, DON’T.  Understanding what they did is paramount to YOUR success and ensuring that the attorneys and Judge’s don’t run over you.

Mr. Sirak suddenly passed away on October 7, 2012 – just a mere two months ago.  This man has left us a remarkable treasure that is steeped in a healthy respect for the law and an incredible understanding of our civil and property rights.   Here is his website with excerpts from the book and a review of who this man was.  May he rest in peace, and may we all achieve peace with help from his book

 ChallengingForeclosure 

 

KEEP UP THE FIGHT!

Simonee

 

Due Process and Constitutional Rights Matter

Posted by on Nov 16, 2012 in Foreclosure, General Public | 2 comments

One of the most troubling aspects of the whole “unlawful detainer” business is the callous disregard the Courts seem to have towards homeowners who are battling wrongful foreclosures.  This week I have been supporting two members whose constitutional rights were violated when they were denied their due process rights and the Court failed miserably in taking the issues seriously.

First, one homeowner faced an unlawful detainer where the attorney for the Plaintiff had actually represented the homeowner in the past, in litigating unlawful detainers for the homeowner’s rental properties.  From the beginning of the litigation the homeowner demanded the Plaintiff’s attorney recuse himself from the litigation because of the conflict of interest.  California law and professional conduct rules are very clear that, “An attorney is required to avoid the representation of adverse interests”.  Prof.Conduct Rule 3-310(E). Santa Teresa Citizen Action Group v. City of San Jose, 7 Cal.Rptr.3d 868  Cal.App.6.Dist.,2003.  In response to the homeowner’s claims, the presiding Judge laughed with the Plaintiff’s attorney and said, ‘I guess you are supposed to remember all your clients”.  Well yes, in fact the attorney is responsible for NOT litigating against a current or former client unless they have received a waiver to do so.

The trial court must cautiously balance the competing interests of the parties.  See In Re Marriage of Zimmerman,  (1993) 16 Cal.App.4th 556, 562-563.  The paramount concern must be to preserve the public trust in the scrupulous administration of justice and the integrity of the bar.  Thus, the important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.  See People ex rel Dept. of Corporations v SpeeDee Oil Change Systems, Inc. (1999) 20 Cal. 4th 1135, 1145-1146.

Thus, when disqualification of an attorney is sought for an alleged violation of the foregoing ethical principles, in cases involving successive representation, the courts have adopted the substantial relationship test. Under this test, where an attorney successively represents clients with adverse interests, and where the subject matter of the two representations are substantially related, both the Supreme Court and the appellate courts mandate that the need to protect the first client’s confidential communications  requires disqualification  from representing the successive client.  (SpeeDee Oil, supra, 20 Cal. 4th at p. 1146).  As such, the attorney for the first client will be presumed to possess confidential information making disqualification mandatory.

This is no laughing matter and the fact that a presiding Judge would think it appropriate to joke with the offending attorney is deplorable conduct.   The writ of possession was issued and the Sheriff’s Notice of Eviction has been posted;  the homeowner took the only avenue available to him – with research support from Info To Fight Foreclosure, the homeowner filed a Writ of Mandate around 11am this morning.  At 4pm this afternoon the Appellate Court clerk contacted the homeowner to let him know the Writ “has gas” as the Conflict of Interest is a serious issue and therefore the Court had issued a Temporary Stay which had been faxed to the Sheriff’s department.

The Writ has not issued, but I am cautiously optimistic that the Appellate Court will listen to the homeowner and issue a Writ VOIDING the judgment and recalling the Writ of Possession.  The Plaintiff’s attorney should have been disqualified and if Justice still prevails in our “hallowed halls” – both the Judge and Plaintiff’s attorney will stop laughing.

The second matter is one in which the homeowner had requested a “jury trial” for her Unlawful Detainer.   The homeowner had filed a “waiver of fees” and the “jury trial” was scheduled; but when she arrived at court there was no jury.  When she demanded the jury trial the Court informed her that her request was ‘untimely” as the jury fees had not been paid.   “The right to trial by jury is, of course, a basic and fundamental part of our jurisprudence. Any doubts on the issue should be resolved in favor of preserving a litigant’s right to trial by jury. (Byram v. Superior Court, supra, 74 Cal. App. 3d 648, 654.) [8c]  Although the Byram court was expressly referring to the right to jury trial under the California Constitution, [162 Cal. App. 3d 1267] the Court found that there was no reason why the policy of resolving doubts in favor of trial by jury would apply any less in the case of statutory guarantees.

Here the Court claimed the homeowner’s request was untimely because court fees had not been paid but the ruling flies in the face of the homeowner’s constitutional right to have a jury trial.   And non payment of fees is NOT grounds for denying the jury trial.  An unlawful detainer action is considered an action of law and therefore triable by a jury unless waived. CCP §§ 1171, 631 (waiver of jury trial).  Marquez-Luque v Marquez  (1987) 192 CA3d 1513, 1519, 238 CR 172.  See Department of Trans. V Kerrigan (1984) 153  CA3d Supp 41, 45046, 200 CR 865.  A jury is waived either expressly under CCP § 631(d)(2) or (3) by a failure to demand a jury trial within five days of notice of trial setting.   The Court should not deny a tenant’s request for a jury trial, however, even if jury fees were not timely posted, unless the failure to post fees would prejudice the landlord. See Johnson-Stovall v. Superior Court (1993) 17 CA4th 808,809 – 812, 21 CR2d 494.  (Emphasis added)

Trial by jury is an indispensable component of due process of law.  Thus, any court which fails to provide trial by jury, fails the test of due process, has no lawful jurisdiction to hear the matter in controversy, and any judgment rendered thereby is null and void, without lawful force and effect, whatsoever.  See: World Wide Volkswagon v. Woodsen, 444 U.S. 286, 291; National Bank v. Wiley, 195 US 257; Pennoyer v. Neff, 95 US 714.

Here this homeowner is first asking for the Court to correct its improper actions by requesting the Court VOID the judgment – stayed tuned.  We will let you know if the Court follows the law and VOIDs the judgment and gives her a jury trial..or if she will have to pursue this with the Appellate Court.

It is a shame that these rubber stamping boiler room Courtrooms are running amuck, but as you can see, homeowners who recognize their rights are being violated and stand up to the Court and demand they change their bad behavior, ARE being heard!

 

KEEP UP THE FIGHT!

Simonee

 

Wells Fargo’s illegal conduct = $840.00 (minimum) State Attorney National Mortgage Settlement

Posted by on Sep 28, 2012 in Foreclosure, General Public | 6 comments

Today I received my anticipated letter from the California State Attorney General.  The first line states, “you are eligible to receive at least $840.00 as part of the settlement”.  The letter goes on to state, “this is only intended as partial compensation for the illegal conduct of the mortgage services”.  No shit, really Sherlock?

 Three key things in regards to this letter:

 1)      I do NOT give up my right to sue the fraudsters banksters for this illegal conduct

2)      I may participate in this settlement and ALSO PURSUE other legal remedies for my loss

3)      The $840.00 is the “minimum” amount I will receive if EVERYONE fills out their claim form and participates in the claim process.  Meaning if you all don’t fill yours out, I may get a few more pennies.

I love this answer under the Commonly Asked Questions – “What is the National Mortgage Settlement About” it states, plainly and clearly – Wells Fargo, Bank of America, Ally/GMAC, Citi, and JP Morgan Chase – routinely signed foreclosure documents outside the presence of the notary and without personal knowledge of the fact contained in the foreclosure documents”.  

I am curious, if a homeowner receives this letter does this mean that they DID in fact commit these illegal acts and can you use the fact that you are eligible for compensation as proof that while you may not have the proof – you are entitled to discovery to get that proof?? (Hope that makes sense, and personally, I would make dang sure any local judge was aware that I received the letter and am entitled to compensation because Ms. Harris apparently is aware that they did commit these illegal acts in my foreclosure and now I get a little bit of money for it).

It is a simple one page application –  one that I might add, I am completing and mailing.  And highly recommend that if you get the letter – complete it, sign it and mail it!  You do NOT need to pay anyone to help you with the clam.  If you need assistance call the 800 number and they will walk you through it.

To Ms. Kamala Harris – THANK YOU.

Click here for the redacted versions of the documents – REDACTED CLAIM LETTER AND FORM

 

KEEP UP THE FIGHT!

Simonee

  LEGAL DISCLAIMER:  I am not an attorney and this is not legal advice.  These are musings about the goings on in the legal battles against banksters who steal peoples homes.  This is intended for  educational and informational purposes only.  Take NO action on this information without consulting an attorney in your jurisdiction.

Did your Notice of Default fail to meet a “Condition Precedent”?

Posted by on Sep 24, 2012 in Foreclosure, General Public | 3 comments

Recently we have been discussing and exploring Paragraph 22 of Deed of Trust’s that discusses the requirement for the Bank to inform the borrower of their right to “bring forth an action to dispute the default and any other defense to the acceleration and sale”.  It appears from research, that when the Bank does not inform you of this right in the Deed of Trust this is a “Failure to Meet a Condition Precedent”.

When parties enter  a “contract” such as a Note or Deed of Trust, there are certain conditions in those agreements that must be met; if those conditions are not met, they can result in a “breach of contract”.  Typical conditions are – I loan you money, you agree to pay that money back at a certain rate per month, for a certain period of time.  (I loan you 100k, you agree to pay me back over a 30 year period at the interest rate of 6%) If you do not make a payment, you fail to meet a “condition” of the contract and are therefore are in “breach” of that contract and I can now liquidate (sell) your property to satisfy the debt.

Where this gets tricky (and I am sure there will be arguments to this effect) is – if you as the borrower first failed to meet a condition of the agreement, can you then enforce the rest of the agreement?  Frankly, I think in this particular situation you can.   Because the agreement says that WHEN the condition of making a payment is not met, the bank has additional conditions which are 1) to inform you they believe you are in default, and 2) inform you that you can sue them disputing that default BEFORE they can go forth with a Trustee Sale.

Yet I have NEVER read a  Notice of Default where it every says anything close to, “Hey..by the way, you can bring forth an action to dispute this default” .  Doesn’t this mean the bank has failed to meet the Condition Precedent?  If they went forward with the Trustee Sale without informing you, then hasn’t the bank breached the contract?  And if they breached the contract, how can they enforce the contract?

So I am trying to work this out in mind –

Bank loans money – Condition

Borrower agrees to make monthly payments – Condition

Borrower fails to make payment, Bank start foreclosure – Condition

Before foreclosure, bank must inform borrower of the default

and borrowers right to sue  – Condition

 The above conditions have to be met before the Trustee Sale can take place.  If the Bank failed to “meet a condition precedent” then do you not have the right to set aside the Trustee Sale for their failure to meet a condition precedent?  How can the bank enforce the contract if they did not adhere to the terms of the agreement?

There was an interesting case in Virgina (I am looking for California cases, so hang tight with me as I research that).  In Richard Mathews, et al v PHH Mortgage Corporation, Record No. 110968 (April 20, 2012)  the bank argued that the Mathews first failed to meet the terms of the agreement by failing to make payments (albeit this is also an argument) – and that according to Viriginia common law, the breaching party cannot enforce the contract. The Trial Court agreed with PHH;  HOWEVER, the Court of Appeals disagreed AND REVERSED in favor of Mathews.   Here is an excerpt from their legal reasoning:

Nevertheless, the Mathewses argue that under Bayview Loan Servicing, LLC v. Simmons, 275 Va. 114, 654 S.E.2d 898 (2008), a lender must comply with all conditions precedent to foreclosure in a deed of trust even if the borrowers are in arrears.   We agree.

In Bayview, the borrower was in arrears.   Consequently, the lender accelerated repayment under the note and directed the trustee under the deed of trust to begin foreclosure proceedings.   Thereafter, the parcel was sold at a foreclosure auction and the borrower filed a suit for damages alleging breach of the deed of trust.  Id. at 117–18, 654 S.E.2d at 899.   We determined that the sale was improper because Bayview had failed to provide a pre-acceleration notice, which was a condition precedent to acceleration under the deed of trust.   By failing to provide the notice, Bayview breached the deed of trust by accelerating repayment and foreclosing:

Because Bayview did not comply with the specific condition precedent under the Deed of Trust, prior to the notice of foreclosure sale by [the trustee], Bayview had not acquired the right to accelerate payment under the terms of the Deed of Trust.   Thus, [the trustee] could exercise no right of acceleration because no such right had then accrued to Bayview․

While Code § 55–59.1(A) does allow a proper notice of foreclosure sale to exercise an accrued right of acceleration, Bayview failed to fulfill the contractual condition precedent that would have given it such a right.

 

I say people, we NEED TO BE ARGUING THIS IN EVERY SINGLE COMPLAINT because not a single solitary Notice of Default contains that CONDITION PRECEDENT.  Discuss it with your attorney…. In the meantime I will be searching for California law to support this argument.

KEEP UP THE FIGHT!

Simonee

 LEGAL DISCLAIMER:  I am not an attorney and this is not legal advice.  These are musings about the goings on in the legal battles against banksters who steal peoples homes.  This is intended for  educational and informational purposes only.  Take NO action on this information without consulting an attorney in your jurisdiction.     

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