Notice of Violation Under California Bill of Rights

“If we accept the Bank’s argument, then we are creating new law. Under the new law a borrower would owe money to a non-creditor simply because the non-creditor procured the borrower’s signature by false pretenses. The actual lender would be unable to retrieve money paid to the fake lender and the borrower would receive credit for neither his own payments nor any payment by a third party on the borrower’s behalf.” Neil F Garfield, livinglies.me

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Barry Fagan submitted the Notice below.

Editor’s Notes: Fagan’s Notice gives a good summary of the applicable provisions of the Bill of Rights recently passed by California. The only thing I would add to the demands is a copy of all wire transfer receipts, wire transfer instructions or other indicia of funding or buying the loans. everything I am getting indicates that in most cases they can’t come up with it.

If you went into Chase and applied for a loan and they approved your application but didn’t fund it, you wouldn’t expect Chase to be able to sue you or start foreclosure proceedings for a loan they never funded. It’s called lack of consideration.

If you actually got the loan from BofA but they forgot to have you sign papers, you would still owe the money to them but it wouldn’t be secured because there was no mortgage lien recorded in their name. And BofA would have a thing or two to say to Chase about who is the real creditor — either the one or advanced the money or the one who got documents fraudulently or wrongfully obtained.

So then comes the question of whether Chase could assign their note and lien rights to BofA. If TILA disclosures had been made showing the relationship between the two banks, it might be possible to do so. But in these closings, the actual identity of the creditor (source of funds) was actively hidden from the borrower.

Thus we have a simple proposition to be decided in the appellate and trial courts: can a party who obtains signed loan documentation including a note and mortgage perfect the lien they recorded in the absence of any consideration. The floodgates for fraud would open wide if the answer were yes.

If the answer is NO, then the origination documents and all assignments, indorsements, transfers and allonges emanating from the original transaction without consideration are void. AND if each assignment or transfer recites that it is for value received, and they too had no money exchange hands thus producing lack of consideration, then they cannot even begin to assert themselves as a BFP (Bona Fide Purchaser for value without notice). The part about “without notice” is going to be difficult to sustain in proof since this was a pattern of table funded loans deemed “predatory per se” by Reg Z.

The reason they diverted the document ownership away from the creditor who actually advanced the money was to create the appearance of third party ownership (and transfers, which was why MERS was created) in the documentary chain arising out of the original of the non-existent loan (i.e., no money exchanged hands pursuant to the recitals on the note and mortgage as between the payor and payee). They needed the appearance of ownership was to create the appearance of an ownership and insurable interest.

Thus even though the money did not come from the originator, the aggregator or even the Master Servicer or Trustee of the pool, affiliates of the investment bank who underwrote and sold bogus mortgage bonds, were able (as “owners”) to purchase insurance, credit default swaps, and receive bailouts because they could “document” that they had lost money even though the reality was that the the third party source of funding, and the real creditors were actual parties suffering the loss.

Had those windfall distributions been applied to balances due to the owners of the mortgage bonds, the balance due from the bond would have been correspondingly reduced. AND if the balance due to the creditor had been reduced or paid in full, then the homeowner/borrower’s obligation to that creditor would have been extinguished entitling the homeowner to receipt of a note paid in full and a release of the mortgage lien (or at least cooperation in nullification of the imperfect mortgage lien).

PRACTICE TIP: Don’t just go after the documents that talk about the transaction by which they claim a liability exists from the borrower to one or more pretender lenders. Push for proof of payment in discovery and don’t be afraid to deny the debt, the note or the mortgage.

In oral argument before the Judge, when he or she asks whether you are contesting the note and mortgage, the answer is yes. When asked whether you are contesting the liability, the answer is yes – and resist the temptation to say why. The less said the better. This is why it is better preempt the pretender lenders with your own suit — because all allegations in the complaint must be taken as true for purposes of a motion to dismiss.

Don’t get trapped into disclosing your evidence in a motion to dismiss. If it is set for a motion to dismiss the sole question before the court is whether your lawsuit contains a short plain statement of ultimate facts upon which relief could be granted and all allegations you make must be assumed to be true. When opposing counsel starts to offer facts, you should object reminding the Judge that this is a motion to dismiss, it is not a motion for summary judgment and there are no facts in the record to corroborate the proffer by opposing counsel.

From Barry Fagan:

Re:  Notice of “Material Violations” under California’s Newly Enacted Homeowners Bill of Rights pursuant to California Civil Code sections, 2923.55, 2924.12, and 2924.17.
See attached and below

Reference is made to Wells Fargo’s (“Defendant”) December 13, 2012 response to Barry Fagan’s (“Plaintiff”) October 25, 2012 request for copies of the following:

(i)           A copy of the borrower’s promissory note or other evidence of indebtedness.

(ii)         A copy of the borrower’s deed of trust or mortgage.

(iii)       A copy of any assignment, if applicable, of the borrower’s mortgage or deed of trust required to demonstrate the right of the mortgage servicer to foreclose.

(iv)        A copy of the borrower’s payment history since the borrower was last less than 60 days past due.

Please be advised that I find Defendant’s response to be woefully defective. This letter is being sent pursuant to my statutory obligation to “meet and confer” with you concerning the defects before bringing an action to enjoin any future foreclosure pursuant to Civil Code § 2924.12.

Defendant’s are in violation of both the notice and standing requirements of California law, and the California newly enacted Homeowner Bill of Rights (“HBR”). In July 2012, California enacted the Homeowner Bill of Rights (“HBR”). Among other things, the HBR authorizes private civil suits to enjoin foreclosure by entities that record or file notices of default or other documentsfalsely claiming the right to foreclose. Civil Code § 2923.55 requires a servicer to provide borrowers with their note and certain other documents, if the borrowers request them.

Civil Code § 2924.17 requires any notice of default, notice of sale, assignment of deed of trust, or substitution of trustee recorded on behalf of a servicer in connection with a foreclosure, or any declaration or affidavit filed in any court regarding a foreclosure, to be “accurate and complete and supported by competent and reliable evidence.” It further requires the servicer to ensure it has reviewed competent and reliable evidence to substantiate the borrower’s default and the right to foreclose.

Civil Code § 2924.12 authorizes actions to enjoin foreclosures, or for damages after foreclosure, for breaches of §§ 2923.55 or 2924.17. This right of private action is “in addition to and independent of any other rights, remedies, or procedures under any other law.  Nothing in this section shall be construed to alter, limit, or negate any other rights, remedies, or procedures provided by law.” Civil Code § 2924.12(h). Any Notice of Default, or Substitution of Trustee recorded on Plaintiffs’ real property based upon a fraudulent and forged Deed of Trust shall be considered a “Material Violation”, thus triggering the injunctive relief provisions of Civil Code § 2924.12 & § 2924.17(a) (b).

I therefore demand that Wells Fargo Bank, N.A. provide Barry Fagan with the UNALTERED original Deed of Trust along with the ORIGINAL Note, as the ones provided by Kutak Rock LLP on October 13, 2011 to Ronsin Copy Service were both photo-shopped and fraudulent fabrications of the original documents, thus not the originals as ordered to be produced by Judge Tarle under LASC case number SC112044. Attached hereto and made a part hereof is the October 13, 2011 Ronsin Copy Service Declaration with copies of the altered and photo-shopped Note and Deed of Trust concerning real property located at Roca Chica Dr. Malibu, CA 90265.

Judge Karlan under LASC case number SC117023 “DENIED” Wells Fargo’s Request for Judicial Notice of the very same Deed of Trust, Notice of Default, Substitution of Trustee and the Notice of Rescission concerning real property located at Roca Chica Dr. Malibu, CA 90265.
Attached hereto and made a part hereof is the relevant excerpt of Judge Karlan’s October 23, 2012 Court Order along with a copy of Wells Fargo’s Request for Judicial Notice of those very same documents. Court Order: REQUEST FOR JUDICIAL NOTICE “DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IS DENIED AS TO EXHIBITS A, B, C, D, K, L, & M.” 

As a result of the above stated facts, please be advised that the fraudulently altered deed of trust and photo-shopped Note that you claim to have been previously provided to Barry Fagan shall not be considered in compliance with section 2923.55 and therefore Wells Fargo Bank, N.A. has committed a “Material Violation” under California’s Newly Enacted Homeowners Bill of Rights pursuant to Civil Code sections, 2923.55, 2924.12, and 2924.17 (a) (b).

Please govern yourselves accordingly.

Regards,

/s/Barry Fagan

Barry S. Fagan Esq.

Thank you.

Barry S. Fagan Esq.
PO Box 1213, Malibu, CA 90265-1213
[T] +1.310.717.1790 – [F] +1.310.456.6447

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35 Responses

  1. Elexquisitor ……. If you need help ask for it.

  2. I see I will get no help here as long as stripes continues to hijack this site.

  3. Like in ILLINOIS….THE ILLINOIS GENERAL ASSEMBLY….ILLINOIS MORTGAGE FORECLOSURE LAW IS A SCANDALOUS FASCIST PIECE OF…….. EX POST FACTO LAWGARBAGE LEGISLATION…..THAT ALLOWS A DEBT COLLECTOR TO BRING A FORECLOSURE COMPLAINT IF A MORTGAGE HAS BEEN RECORDED…….A RECORDED MORTGAGE IS NOT A LEGALLY ENFORCEABLE LIEN….AND DOES NOT FOLLOW THE LEGAL REQUIREMENTS OF STATE & FEDERAL LAW……A STATE STATUTE IS ONLY VALID UNTIL PROVEN OTHERWISE…..

  4. No ex post facto laws..

  5. All I want for Christmas is to see the politicians all get pink slips, “lose” their credit lines, pensions, healthcare and get throw into fraudclosure on all of their properties.

  6. Maybe Barney has too many boyfriends & needs to stop frequenting cartiers abd cut down on his expenses. If we have to eat pink slime hamburger meat, so should he.

  7. What’s the matter tnharry are you invested in this scam to….? No sympathy here. Your friends on Wall Street got way to greedy and the middle class can’t afford to keep the whore house running. Maybe you should sue or call Barney Frank who is finally calling for criminal investigations of his criminal friends on Wall Street…. Good Luck with that….look at the bright side ….the fiscal cliff and other financal fascism by the traitor politicians will force everyone to pay for the crimes of Wall Street….They will bankrupt the country……then we will all be on their sinking titanic. Think of the fun we are all going to have trying to save ourselves from drowning in their QUADRILLION dollars in credit derivatives fraud….. !

  8. LMAO……Barney Frank is finally calling the crooks on Wall Street crooks…… FEDSTER money…it’s a crime.

  9. i got fed up with this site and the nonsense a while ago but drop back in to see what’s up once a month or so. Neil – either shut it down or take some control of the site. it appears to have been essentially hijacked by stripes, who I suspect could be a reincarnation of carie. Get a pair and actually run your site Neil, or just walk away. It’s virtually useless in its current form.

  10. Why is Barney Frank now crying foul….? Could it be because his little pets FANNIE & FREDDIE are claiming $3 billion in losses due to the LIBOR SCANDAL….and the U.S. TAXPAYERS have been robbed into poverty by these crooks so they are coming for their shareholders/ investors pockets …….. ? The politicians best friends are turning on them….? Ha….now this is going to get interesting.

  11. BARNEY FRANK ON CNBC CALLING FOR CRIMNAL PROSECUTIONS OF WALL STREET CROOKS WHO HIDE BEHIND A CORPORATE SHIELD. FRANK SAID THAT THE INDIVIDUALS COMMITTED THE CRIMES AND ARE NOT PROTECTED BY THE LAW….THERE IS NO RISK TO THE FINANCIAL SYSTEM TO PROSECUTE THESE INDIVIDUALS ……

  12. I forgot to say the FEDSTERS control by fraud….Money, Credit & Investment scams. They don’t own any loans or property because they never pay for anything. Their criminal operation is all fully funded by WE THE PEOPLE….THE U.S. TAXPAYERS VIA THE TRUST FOR THE PEOPLES MONEY…..THE U.S. TREASURY DEPARTMENT. These FED/INVESTOR crooks both foreign and domestic, have hijacked the U.S. TREASURY DEPARTMENT and have been funnelling trillions of our wealth to themselves and their criminal investor friends around the globe for decades. This is robbery and extortion by the FEDSTERS of WE THE PEOPLE who fund and pay for everything we purchase UPFRONT at the ORIGINATION….

  13. This is a war on the people by the banks and their investors who control all of the Corporations. They are taking many forms most notably, THE TRAITOR POLITICIANS. In reality none of them are enemies of each other. They are using all of us as pawns in their sick game of control. They all need to go to prison.

  14. LOL DC…I am getting paid by the banksters to tell people NOT to cooperate with the banksters….? You are obviously working for the Government D.C….the politicians who are the bank investors……I despise both …. I am a victim of both who are really one giant criminal enterprise controlled by a small group of 8 large families who hide behind the scenes and control the economy via 4 large Wall Street institutional investment firms. I won’t give any of these crooks another dime willingly. They have hijacked all of our inalienable rights by robbing the American people with their FEDERAL RESERVE BANKING SCAM, so called “social safety nets”, progressive taxation policies, fractional reserve credit lending backed by zero, investment scams instituted by traitor politicians. They are a Global crime syndicate wreaking havoc and terror on the people is what they are all about.

  15. Will the world end tomorrow as predicted … ? Highly doubtful. It’s more fun for Satan, his minions & cohorts to terrorize all of us. The 21st will pass, the fiscal stiff will to and then it will be a whole new slew of manufactured crises and other crap. Expect an all new set of Nostradamus predictions will emerge from somewhere. There are inbred psychopaths running the world but God promised this would be a world without end so they will be stopped sooner or later. Hopefully sooner.

  16. It is terrorism on many levels and it is the politicians who are howling at the moon.

  17. OK STRIPES —-that one i missed–so now its wiped off too—-so go bay at the moon every 3 minutes and drive the rest off too—

  18. DC…..you trolls know well that I am speaking the honest truth. That is why you are personally attacking me. My hope is to reach as many newbies as possible so they will do their own research. You don’t need to be an attorney, a banker or a Wall Street crook to know this financial fraud is massive, can never be cured and everything I say is absolutely, unequivocally true.

  19. OK —stripes –iv continued to pull automatic updates because it makes me ill to see your name apear on posts–so you own the site as we others withdraw

    nebies must realize that you have no idea what you are talking about –and get paid by banking association in all liklihood

    please post a few dozen more posts so i can be sure iv wiped garfield updates off my system–oh well you would do that in any event

  20. Refinancing, modifying, short sales, fraudclosures, are fascism. Forcing victims to pay for $700 trillion+ in mortgage fraud backed by $8 trillion in real estate for these CROOKS is not going to save the country. It is merely collecting juice money for this crime syndicate to terrorize WE THE PEOPLE with. It is very deceptive.

  21. There may be a few honest ones, however, the fraud in the factum is so obvious that it is hard to see where there is any honesty here. Proof of Standing is first year law material. Standing is a critical issue going to the foundational basis of Constitutional Government with respect to the doctrine of separation of powers, (Raines v Byrd). Therefore, these fraudclosures should have been halted a long time ago. These judges are obviously being told to enforce contracts that no longer exist on massive debt created by massive Wall Street fraud that does not have a chance in hell of ever being repaid no matter how much property or wealth they steal from all of us. Therefore this is a massive civil conspiracy the likes of which have never been seen. This is outright theft by a small, centralized group of diabolical monsters.

  22. @used car guy.. I like your style. Homegrown Illinois Boy? Speaking of Grins … I had a tear come to my eye when I opened the mail today. A homeowner sending me a Christmas Card and Thank You Letter. Because of my Help they were able to get a substantial intrest rate decrease, and the & 8gs in refi (scumbag) fees all but gone. They gifted me Starbucks and Panera Bread Gift Certificates. Its Nice to know you can make a difference one family at a time. Thank You! Keep Kicking Bankster Butt!

  23. THATS AN UNDERSTATEMENT!

  24. I would like to see the proof on that too. What Constitution the Bank Constitution? Just like bank law verses the rule of law ? The U.S. Constitution protects property rights. Not stolen property rights. At least he warned you he believes in the banks and bank law. Some take your money and throw you under the table. Need to look for the good ones and they are out there. The good lawyers and judges are few it seems but they are there. And swamped with trying to defend people against the enablers of the crimes. Not an easy task for the good lawyers.

  25. An attorney I met with a while back told me the Constitution protects the banks. I’m not sure if he was just trying to make me feel hopeless, or if he meant the corporation thing, or the corruption or the combo because he wouldn’t elaborate but that made me furious.

  26. The sanctions requested are striking pleadings, payment of costs including atty fees and lockup for contempt of court. then you are into civil rights infringement by state court–is it in his reasonable exercise–

  27. Thanks Neil for the timely info..!

  28. I meant to give a nod to Gwendolyn C. You go girl! I don’t think they’ll stop until the judges start banging these guys with sanctions. The lawyers especially. They know this is forgery.

  29. david, I have a Countrywide case wherein they tendered two notes (to the BK court) with two different RUBBER STAMP ENDORSEMENTS IN BLANK (after filing alost note affidavit) They made two rubber stamps with two different signatures of the same person. counsel can’t believe it. HAVE THEY NO SHAME? OR NO BRAINS?

    BSE. good advice. Same goes for Florida, California.

    somebody said something about a gag order. I’ll tell you what: I don’t think there’s a number under 7 figures that could make me stop. I JUST DO IT FOR SHITS AND GRINS NOW.

    it’s MAYHEM out there, I tell ya! MAYHEM!

  30. A song from a friend whos son wrote this song to comfort families in foreclosure. She wrote kids are affected by foreclosures. my son wrote this song. please send some musical releif around we all need to feel happy. http://www.youtube.com/watch?v=8ofGEnmBPGI

    thank you

  31. @ALL
    AUTHOR INTRODUCTORY COMMENT:
    ” “If we accept the Bank’s argument, then we are creating new law. Under the new law a borrower would owe money to a non-creditor simply because the non-creditor procured the borrower’s signature by false pretenses. The actual lender would be unable to retrieve money paid to the fake lender and the borrower would receive credit for neither his own payments nor any payment by a third party on the borrower’s behalf.” Neil F Garfield, livinglies.me”

    This is exactly what the servicers are doing in judicial states increasingly—-servicer steals the house upon forged assignments of mortgage documents and forged indorsements on copies of notes, then AT LEAST one bank comes along and disavows servicers’ right to release the homeowner from deficiency or the entire loan amount–no credit for that seized by the servicer. The bank if pressed will asert that the servicer was simply recovering fees owed it–and the borrower owes the debt on equitable grounds as a deficiency.

    The effect is to wipe out judicial forclosure statutes and court practices: the only relief in judicial states today because of this predation is bankruptcy. This tramples upon concepts such as EQUAL PROTECTION—DUE PROCESS, right to seek redress of grievances
    and more———freedom of movement between states: if you are so unfortunate as to own a home in OHIO —-you are anchored to a NOTE even after your home was seized, you obtained a release by settlement from the servicer, —the debt follows you to wherever you go to find work—–why should a resident of california get special freedoms that are not enjoyed by a citizen of ohio–even one that seeks to obtain work in california???

    the nation is in the process of disintegration into regions because freedom of movement is effectively restrained by the treacherous workings of the servicer/collector/bank industry

    if we in Ohio are trapped like rats in a sinking economy–unable to escape with more than the shirt on our backs and a $1000 car—why should we pay taxes that might be used in California where people enjoy greater freedoms????

    If there is no equal treatment at this fundamental level for citizens of different states then there is no reason to bear the cost of a national government–let there be secession by regions–let New York pay for its own hurricanes–let california pay for its own earthquakes—let us in midwest be free of the oppression of coastal states’ populations

  32. As I await results of my discovery requests of FNMA and JPM in California I am wondering about the following anomaly in my case. The filed assignment of my note to FNMA has a notation of “Pool 066627″ on front sheet, and attached sheet of several loans includes mine, with the number ‘121224’ next to my name.
    The copy of my alleged note seems to have ‘66627 1971597′ printed sideways in the margin, and ‘056121224’ lettered at the top of the note, and ‘121224’ lettered in the bottom margin. In an informal reply to an informal request of opposing counsel, I was informed there was no PSA available because note was never securitized. The assignment was filed too late for the loan to be legally admitted to the pool (I can get report on the pass-through pool on FNMA website), so is it possible it just made it’s way to FNMA’s mortgage portfolio (non-MBS)?

  33. ***************************** WARNING ******************************

    Do not buy a residential property in Arizona. In the end, you will be worse off than a renter living in a glorified mobile home park. Remember, it all looks the same with your eyes closed .
    It is best to step aside and look else where.

    **************************** WARNING ******************************

  34. The Homeowners Bill of Rights has been voted in July 2012, but will be applicable only in January 1st 2013. The new law will not be retroactive, but what about pending lawsuits? Will it be 2 sets of laws for the exact same case after January 1st 2012 ? Is that possible ?

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