Alignment of Parties and Cancellation of VOID Instrument

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DENY and DISCOVER: First you need to start with the premise that the origination (“closing”) documents were defective from the start. By naming the wrong payee and containing terms different from the terms agreed by the actual Lender (source of funds) specifically as to how the receivable is to be repaid, the note fails the essential tests required to be considered “evidence of the obligation.”

The defective note therefore cannot be reinvigorated into non-defective merely by mention in the collateral mortgage or deed of trust which is recorded to assure faithful performance by the Payor under the terms of the note.  Perhaps the reverse would be true if the mortgage or deed of trust disclosed the reality of a table funded transaction, but that is not apparent for any loan for which there are claims of securitization or assignment.

Hence, the cause of action for cancellation of a VOID instrument lies in the fact that although the mortgage or deed of trust was recorded, it should not have been recorded because it did not recite the basic requirements of a perfected lien. I would add the caveat that cancellation of the instrument probably does not apply to the note, but does apply to the mortgage or deed of trust.

The note is subject to a cause of action for return of the note as satisfied or cancelled if you allege and prove that the Lender was paid in full and that anyone other than the homeowner who paid it might have a cause of action for contribution but that (a) said cause of action is NOT before the court and (b) an action for contribution cannot be considered secured even by a valid mortgage that was satisfied, much less a mortgage or deed of trust that was never a perfected lien.

The cause of action is NOT in contribution if the allegation is that the “creditor” (after showing the details of the transaction in which money was exchanged) purchased the note and mortgage, which is different. In that case, an assignment would be required or some other bill of sale or other instrument in order to preserve a perfected lien. But the payment and even a transfer does not perfect a lien that is defective.

That bring us to the issue of evidence and the alignment of the parties. Nearly all pro se litigants and lawyers are using the above arguments as affirmative defenses or worse yet, merely as argument at hearings for demurrers, motions to dismiss, motions for summary judgment and motions to lift stay. This is understandable in the non-judicial states because of confusion and conflict in the rules of civil procedure.

In seeking a Temporary Restraining Order, the homeowner needs to bring the lawsuit, which is ridiculous when you thin about it because the information about the loan is in the hands of multiple parties, many of whom the known parties refuse to disclose the identity or status of said stakeholders.

Where I see attorneys getting traction in courts previously disposed to be dismissive of defenses and claims of borrowers, is precisely in this realm. First by denying the obligation, note and mortgage, that pouts the matter at issue. At that point it is universally agreed that the burden switches to the other side as to pleading and proof. People often ask me during seminars or conference calls
how do I prove that?”. The answer is that you don’t — you make them plead and prove their allegations. Non-judicial foreclosure was NEVER meant to be a vehicle to allow foreclosures to be completed when they would not have satisfied the statutory requirements of a judicial foreclosure.

This is what you cite: “Where the evidence necessary to establish a FACT that is ESSENTIAL to a CLAIM lies peculiarly within the knowledge and competence of one of the parties, THAT party has the BURDEN of going forward with the evidence on the issue even though it is NOT THE PARTY ASSERTING THE CLAIM.” [Garcia v Industrial Acc. Com (1953) 41 Cal.2d 689, 694; Wigmore Evidence 2d ed. 1940 Sec 2486; Witkin Cal. Evidence (1958) Sec 56(b).]

This doctrine is centuries old. You know something is true or you at least have good reason to believe a fact to be true but he other side has the proof. IN this case you know your denial of the essential elements of the judicial foreclosure forces the forecloser to come forward and prove their claim that they indeed have the right to foreclose.

Most Judges in most instances have realigned the parties and required the party claiming affirmative relief to plead as though they were the plaintiff even though the statute required the initiation of the lawsuit by the other side (the homeowner). It’s like some of the “negative” rulings against borrowers. There are plenty of people who can START a foreclosure, but only the creditor can finish it with a credit bid at auction.

California MEmo on ALignment and Cancellation of Note

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13 Responses

  1. There are plenty of people who can START a foreclosure, but only the creditor can finish it with a credit bid at auction.

  2. how do I prove that?”. The answer is that you don’t — you make them plead and prove their allegations. Non-judicial foreclosure was NEVER meant to be a vehicle to allow foreclosures to be completed when they would not have satisfied the statutory requirements of a judicial foreclosure.

  3. Hi Neil. I have attempted to call you many times. As wall I have let messages. How ever there is no responds. I would appreciate a telephone return. Please find the enclosed, # 805 529-1965 Respectfully.

    Nancy Hahn ( aka Nevenka Hahn )

  4. This is an attorney in San Diego county that is advocate for homewoners and the Living Lies website/blog that is recommended to read if possible. Don’t ackonowledge Wells Fargo Standing, they must be challenged for position. Robert. ………………………..

    ________________________________

  5. THE TRUTH IS……The FED defaulted on their original loan they took out from the U.S. TREASURY DEPARTMENT….THAT IS WHAT THE FDIC & THE JUDGES & THE POLITICIANS ARE TRYING TO COVER UP FOR THE FED….THE ORIGINATION FRAUD…….THEY ARE TRYING TO FORCE ALL OF US INTO REPAYING FOR IT……THAT WILL CREATE COMPLETE COMMUNISM FOR THE BENEFIT OF THE FED INVESTORS…WHO ARE COMMUNISTS…..

  6. The FED INVESTORS ARE THE REAL BULLIES HERE……THESE HIDDEN COMMUNISTS DON’T OWN ANYTHING OR ANYONE BECAUSE OF THE ORIGINATION FRAUD……THEY ARE SICK PERVERTS….! BEWARE….THESE SODOMITES WANT COMPLETE COMMUNISM…..THEY WANT TO USE THEIR QUADRILLION DOLLARS IN CREDIT FRAUD AS A SICK PERVERSION TO CONVERT THE AMERICAN PEOPLE INTO THEIR OWN PERSONAL ATM MACHINES….! BEWARE THE RED DRAGON & THE BEAST WANT TO USE RE SOCIALISM OF THEIR INSOLVENT DEBT TO CREATE COMPLETE COMMUNISM…..!!!

  7. “(carie should like these since all three are mssing if the orig loan were falsely defaulted).”

    Yes, JG—it was, it was!!

  8. @NG – that’s a good cite you gave. We have to be able to get at
    evidence singularly in the possession of the other party. I had a case on it, akin to the one you cite, but that was long ago, and as often happens with me, I can’t find it. Maybe we’d get somewhere if your case is used in conjunction with an allegation that even if one is the plaintiff in court, it’s the bankster who is the claimant by filing a NOD, thus putting the bankster, the true plaintiff, to its proof. (that the bankster filing a NOD is the true plaintiff has been supported by more than one court).
    There’s a provision in FRCP 26

    http://www.law.cornell.edu/rules/frcp/rule_26

    which mandates that a party turn over what it’s got in support (or against) its claim without a formal discovery plan / process and I haven’t seen it used and as a nonlawyer, I don’t know why not. Clearly, such a rule’s intent is to compel one party to turn over what it’s got, at a minimum in the name of judicial economy.
    But one isn’t going to get it if one doesn’t stand on the rule. Like everything else, standing on it is probably not a walk in the park, so case law would be needed to do so. I’d also be interested in your take on the subpoena deuces tecum (aka “bring what you’ve got”) : at what point may one be issued and what all production should be encompassed in response to one. My take on a SDT is “everything”. Not too long ago, you posted a list of what you thought should be asked for in discovery. I was busy, so didn’t get to concentrate on it much. I hope it included a chain of custody for the note. Another area everyone needs help on imo is the use of affidavits and declarations, because those are the weapons banksters routinely use to stand in as “evidence”, and though I’m no expert, it certainly appears to me they are easily undermined if one knows the FRE’s. For instance:

    “The declaration violates the best evidence rule and constitutes
    inadmissable hearsay, against FRE 701 abd 602, as the declarant
    shows no evidence of expertise. The declarant has not established that he is competent to testify (declaration) about the matter he discusses, nor does the declaration establish or even claim that the declarant was involved with events leading to the conclusion hoped to be estabished by the declaration….The declaration is further hearsay against FRE’s 801 and 802. Further, the attachments lack authentication pursuant to rule 901and FRCP 43 made applicable by Rule (9017 in bk) 17 and do not support a claim by the plaintiff (or defendant). A document may (only) be admitted as evidence if accompanied by an affidavit from a COMPETENT witness (rule 602) that authenticates
    the document (rule 901) AND the document is otherwise admissable.”
    Some of these FRE’s are discussed in Roberts, 210 B.R. 325, 329,
    and I’m sure there are a zillion cases available to cite to undermine
    affs and declarations.

    There are three tenets for a legal determination a lender is a bonafide lender: The loan must have been made 1) in good faith, 2) for value, and 3) without notice of any third party claim or interest (carie should like these since all three are mssing if the orig loan were falsely defaulted). Good faith is defined as “conduct which is honest in fact, free of improper motive or willful ignorance of the facts at hand”.
    What happens if a lender is determined not to be a bonafide lender? Well, I forget, so I don’t know the attacks the loan would be subject to, but it’s an avenue grossly overlooked and needing research. For one thing and one thing only, if a borrower didn’t really qualify, the loan wasn’t made in good faith imo. If an appraisal were jacked, the loan wasn’t made in good faith, also imo.
    No. 3 above, I believe, generally means without notice of, say, an existing loan or lien or someone else’s interest in the property for whatever reason(s). Not a bonafide lender: loan is void? voidable? invalid? We need to know. It does no good to know something the bankster says is purple is really yellow if you can’t get it before the court, so obviously, at least to me, the battle is getting it before the court and it’s past time to learn how to do that. I say that knowing the banskter will say “we’re the holder of the note and entitled to enforce it under Art 3 and look here, we’ve got an assignment of the dot (thanks to it’s employee executing an assgt in MERS’ name), so that should be the end of it.” First of all, if banksters
    were compelled to comply with Rule 26, that sentence might well not be available to rely on.
    These are lay opinions, as always and not legal advice. Ask a lawyer.

  9. The Answer is ……………… Grandma!!

  10. An American Standoff … Mr Bankster can not File without Commiting a Criminal Offense not covered by the consent orders and settlements. Utt Ohh …… I can not file QT becasue the Burdon of Proof is on Me. Utt oh …. The Same Proof I requested for Bank of Banksters for my Title Ins ….. An American Standoff! Hell will Freeze Over before I pay off two seperate parties for the same mortgage and hell will Freeze Over before one of them get paid without the Proof and Fixin It! They Broke It … They Fix It! Its not my Responsibility! I didnt sign up for a Lawsuit! Soo … Bring It on Mr Bankster, Whose the Bully Now!

  11. RE: Last Paragraph … Most Judges in most instances have realigned the parties and required the party claiming affirmative relief to plead as though they were the plaintiff even though the statute required the initiation of the lawsuit by the other side (the homeowner). It’s like some of the “negative” rulings against borrowers.
    ……………………………………………………………………………………………………
    That same Burdon of Proof in QT was on the Plaintiff. … That is why I did not file suit! You see … I needed them to Provide that same Proof to me to obtain Title Insureance. That is what CTT said when I requested Title Warrenty Policy for My Title. Utt Ohhh …..

  12. Get an Attorney! First in Line… First Served! Take a Bite Out of Crime! Yep! Yep! Home for Christmas and a Happy New Year. Well almost a Happy New Year … dammed if those retirement losses are gonna hurt thou …. Oh Well! I’m not Greedy! I would rather You the Homeowners have it … Not Mr Bankster! Sombody owes me an Apolagy! Yep!

  13. I have No association with this Website as some may have presumed. But I Did have a Good Lawyer! Yep! Now Go … Kick Some Bankster Ass!

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