Balancing the Scales of Justice for Pro Se Homeowners

California Statutes and Cases for Consideration When Fighting Foreclosure

Posted by on Jan 23, 2012

When contemplating your fight against foreclosure understanding what statutes have been violated is critical in pleading your case to the Court.  Not only must you be able to articulate in very clear, specific terms how the violation occurred, you will need cases that support your contention that the action(s) is a violation and you are entitled to some type of relief from the violation.

You can choose to fight your battle in your local state court’s civil division, or through a Federal District Court.  In order to file in the Federal Court at least one of your causes of actions must be a federal statute violation to give the court jurisdiction.  (There are other reasons that a federal court will take on a case, but for purposes of this blog, we are dealing with subject matter jurisdiction).

The most obvious, and most abused, cause of action is the lack of standing of the parties doing the foreclosure.  The reason I say the most abused is because when homeowners first started fighting the banks  there was an onslaught of the “show me the note” complaints that were copied from the internet and filed in the courts.  I won’t go into the history of this debacle but suffice it to say the attorney who perpetrated this myth in some of the California courts  is no longer a practicing attorney; the minute a judge reads “show me the Note” their head spins around, their blood pressure rises and they start burbling as they toss your complaint out.  And it isn’t pretty.

Show me the Note is NOT a cause of action; lack of standing is.  Proof of standing comes in many forms and getting to the “show me the Note” is not as simple as asking for it.  As we have witnessed in the Gomes and Robinson cases, the fact that MERS was on the Deed of Trust with authority to initiate the foreclosure killed any chance of getting to how the new parties came into possession of the Note and confirming they had rights to collect on it.  Their defense to the foreclosures needed to be on different grounds.

So when you consider your fight against the foreclosure there are many areas to look at in regards to the loan the Note  is evidence of,  which are:  the actual Note itself and what, if any endorsements it has, the Deed of Trust and the actual foreclosure process itself (i.e. the Notice of Default, Notice of Trustee Sale, Trustee Sale and Trustee Deed Upon Sale).  If your Note was allegedly sold to a REMIC Trust then you have the added complexity of understanding if the Note actually made it to the Trust.  This fight is not for the faint hearted and definitely one that you want an attorney to help you with; it is littered with bad laws that allow the banks to continue on their merry way in their quest to steal your home.

The California Statutes that are getting the most scrutiny in foreclosure cases are the Notice of Default, the Substitution of Trustee, Assignment of Deed of Trust, Rosenthal Act (California’s own version of the Federal Debt Protection Collection Act which incorporates the majority of the FDPCA) along with Business and Professional Codes.  There is no one silver bullet to stop the fraud.  I also highly recommend you stop by Nolo and read their section Defenses to Foreclosure.

There is a site called Onecle that provides all of the statutes in their current form (remember to stop by NOLO and read how to read the statute).  In the search button on Onecle enter the name of the statute (make sure to enter ccc in front of the Statute; for example enter CCC 2924) and Onecle will bring it up for you to read.  Then once you read the statutes look at your foreclosure documents to see how they compare to what the statutes say they should look like.  Following is a list of statutes that you may want to take a look at:

[private Monthly|annual|advocate]

             California Civil Code § 2924 – This covers the “power of sale” clause in your Deed of Trust.  It details why, how, when and by who the power of sale may be exercised including the Trustee Sale and Trustee Deed Upon Sale

            California Civil Code § 2934a – This covers the substitution of trustee for your Deed of Trust.  It details who and how a substitution may occur.

            California Civil Code § 2932.5 – This covers an Assignment of Deed of Trust.  It details who and how an assignment may be done and the impact of that assignment.

            California Civil Code § 2932.5– This details the efforts foreclosing entities must make to attempt a work out with the property owner.

            California Civil Code § 2943-  This new Statute, that goes into effect on January 1, 2014, details the obligation of a party to provide a certified copy of the Promissory Note with the name of the current beneficiary and/or its assigns.

In our store are documents that cover each of these statutes and provides  a listing of cases for consideration in evaluating whether the parties foreclosing on you have violated a statute and how you may, or in some cases may not, want to plead the violations.  The cases typically will tell you why the judges involved ruled the way they did.  Keep in mind that none of our documents contain legal advice and nothing replaces competent legal representation. [/private]

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