LOW HANGING FRUIT FOR HOMEOWNERS TO ATTACK
QUALIFICATIONS OF THE SO-CALLED “SUBSTITUTE TRUSTEE”
EDITOR’S NOTE: My experience in business and law over the last 44 years has repeatedly taught me and reminded me that it is the small stuff that gets you every time. Skipping steps and negligence is a fact of life and human nature. In this case the banks made it an art form.
The answer usually is right in front of your face. If the substitution of trustee can be attacked successfully the foreclosure falls on its face. Judges may not like the whole “authority” and “Securitization” issue because frankly it takes them too long to understand it and they still assume the banks wouldn’t lie directly to the judge’s face, an assumption that is just plain wrong.
But if you show that the express and very specific requirement of statute were not met in the execution of the substitution of trustee, then the Judge cannot ignore it. It takes some digging so either hire someone or do the work yourself which is why I am publishing the work as it goes along.
Attorneys and pro se litigants take note: ATTACK THE SUBSTITUTION OF TRUSTEE using all grounds available but by all means lead with the violation of the technical requirements of statute.
You can argue, correctly in each state, that those are not just technical. Because the clerks’ offices and the public are going to rely on these documents in the recording offices and in the marketplace it is essential for everyone to have confidence in the system — that is the reason for notaries.
The Banks would have you believe that a notary is to provide the appearance of authenticity. Legislators and Judges will tell you that the reason for notaries is to assure that the document is actually authentic. And showing a pattern of conduct in which the notaries, the signatures and the documents are not reliable will show a system risk to the marketplace that can only be addressed through RICO.
FROM SALLY BURKE, OUR ARIZONA LICENSED DOCUMENT PREPARER AND EXAMINER:
here is an excerpt from California Notary Law Handbook. We all know that ARS 33-804(D) requires ” Notice of substitution of trustee shall contain a description of the basis for the successor trustee’s qualification pursuant to section 33-803, subsection A. A notice of substitution of trustee shall be sufficient if acknowledged by all beneficiaries under the trust deed OR THEIR AGENTS AS AUTHORIZED IN WRITING and if prepared in substantially the following form”
Ms. Pamela Campbell ACKNOWLEDGED on the Substitution of Trustee as Assistant Secretary of MERS (agent). She better have something in writing evidencing she was an authorized AGENT OF MERS, at the time she signed this document, and the notary MS. RHONDA RORIE better have something her journal acknowledging she witnessed evidence of such authorization.
Here is the excerpt from California Notary Law Handbook regarding acknowledgment on a document:
The notary public sequential journal must contain a statement that the identity of a person making the acknowledgment or taking the oath or affirmation was based on satisfactory evidence. If identity was established based on the oath of a credible witness personally known to the notary public, then the journal must contain the signature of the credible witness or the type of identifying document used to establish the witness’ identity, the governmental agency issuing the document, the serial or identifying number of the document, and the date of issue or expiration of the document. If the identity of the person making the acknowledgment or taking the oath or affirmation was established by the oaths or affirmations of two credible witnesses whose identities are proven to the notary public upon the presentation of satisfactory evidence, then the journal must contain the signatures of the credible witnesses and the type of identifying documents, the identifying numbers of the documents and the dates of issuance or expiration of the documents presented by the witnesses to establish their identities.
The certificate of acknowledgment must be filled completely out at the time the notary public’s signature and seal are affixed. The certificate of acknowledgment is executed under penalty of perjury. (Civil Code section 1189(a)(1))
The completion of a certificate of acknowledgment that contains statements that the notary public knows to be false not only may cause the notary public to be liable for civil penalties and administrative action, but is also a criminal offense. The notary public who willfully states as true any material fact known to be false is subject to a civil penalty not exceeding $10,000. (Civil Code section 1189(a)(2))
A notary public may complete a certificate of acknowledgment required in another state or jurisdiction of the United States on documents to be filed in that other state or jurisdiction…, provided the form does not require the notary public to determine or certify that the signer holds a particular representative capacity or to make other determinations and certifications not allowed by California law. Any certificate of acknowledgment taken within this state shall be in the following form:
here is ARS 33-804 regarding substitution of trustee by beneficiary…
D. A notice of substitution of trustee shall contain a description of the basis for the successor trustee’s qualification pursuant to section 33-803, subsection A. A notice of substitution of trustee shall be sufficient if acknowledged by all beneficiaries under the trust deed or their agents as authorized in writing and if prepared in substantially the following form:
On the NOTICE OF SUBSTITUTION OF TRUSTEE, notary RHONDA RORIE certified UNDER PENALTY OF PERJURY that Pam Campbell personally appeared before her and “proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their AUTHORIZED CAPACITY(IES), and that by his/her/their signature(s) on the instrument the person(s), or the ENTITY upon behalf of which the person(s) acted, executed the instrument. I CERTIFY under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Under California Notary Law the notary has to produce upon written request a copy of the journal entry from her journal to a member of the public WITHIN 15 days after written request.
I think you should send a letter to RHONDA RORIE, who is no LONGER a notary, yet still works for Cal Western and request a written copy of her journal entry for the acknowledgment on your NOTICE OF SUBSTITUTION OF TRUSTEE.
Also, according the California Law, when the notary’s certification expires they are required to SURRENDER THEIR JOURNAL to the California County Recording Clerk. Per Cyndee at the Clerk’s office, Ms. Rorie never turned her journal into them. Another claim you can state in your complaint to the Cali SOS.
Finally, if the Clerk’s office doesn’t have her journal, surely she must have it, and she has to comply with your written request within 15 days.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: ARIZONA NOTARY, bankruptcy, borrower, CALIFORNIA NOTARY, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, notary, Pamela Campbell, quiet title, rescission, RESPA, RORIE, securitization, TILA audit, trustee, WEISBAND |