Discovery and Due Process in California

I produced a memorandum as an expert witness and consultant in litigation support for a lawyer in California that after re-reading it, I think would be helpful in all foreclosure litigation. I have excerpted paragraphs from the memo and I present here for your use.

Plaintiff/Appellant has pre-empted the opposing parties with a lawsuit that seeks to determine with finality the status and ownership of her loan. She has received, in and out of court, conflicting answers to her questions. The Defendant/Appellees continue to stonewall her attempt to get simple answers to simple questions — to whom does she owe money and how much money does she owe after all appropriate credits from payments received by the creditor on her mortgage loan.

 

She does not take the position that money is not owed to anyone. She asserts that the opposing parties to this litigation are unable and unwilling to provide any actual transaction information in which the subject loan was originated, transferred or acquired. If she is right none of them can issue a satisfaction and release of mortgage without further complicating a tortuous chain of title — and none of them had any right to collect any money from her. A natural question arising out of this that Plaintiff/Appellant seeks to answer is who is the creditor and have they been paid? If they have been paid or their agents have been paid, how much were they paid and on what terms if the payments were from third parties who were strangers to the original loan contract between the Plaintiff/Appellant and the apparent originator.

 

She asserts that based upon the limited information available to her that the original debt that arose (by operation of law) when she received the benefits of a loan was mischaracterized from the beginning, and has changed steadily over time. She asserts that the “originator” was a sham nominee and the closing documents were both misrepresented as to the identity of the lender, and incomplete because of the failure to disclose the real terms of a loan that at best would be described as partially represented on a promissory note and partially represented on a certificated or uncertificated “mortgage bond.”

 

Neither the actual lender/investors nor the homeowner/borrower were parties to the contract for lending in which the Plaintiff/Appellant was a real party in interest.  And the homeowner/borrower in this case was not party to the promise to repay issued to the actual lenders (investors) who advanced the money. The investor/lenders were party to a bond indenture, prospectus and pooling and servicing agreement, while the borrower was party to a promissory note and deed of trust. It is only by combining the two —- the bond and the note — that the full terms of the transaction emerge — something that the major banks seek to avoid at all costs.

 

When it suits them they characterize it as one cloud of related transactions in which there is a mysterious logic, and when it suits them otherwise they assert that the transactions and documents are not a cloud at all but rather a succession of unrelated individual transactions. Hence they can foreclose under the cloud theory, but under the theory of individual (step) transactions, they don’t have to account for the receipt of exorbitant compensation through tier 2 yield spread premiums, the receipt of insurance, servicer advances, credit default swaps, over-collateralization, cross collateralization, guarantees and other hedge contracts; under this theory they were not acting as agents for the investors (whom they had already defrauded) when they received payments from third parties who thought that the losses on the bonds and loans were losses of the banks — because those banks selling mortgage bonds, while serving as intermediaries, created the illusion that the trillions of dollars invested in mortgage bonds was actually owned equitably and legally by the banks.

 

Plaintiff/Appellant seeks to resolve this conflict with finality so she can move on with her life and property.

 

 If she is right, several debts arose out of the subject transaction and probably none of them were secured by a valid deed of trust or mortgage. If she is right the issues with her mortgage debt have been mitigated and she can settle that with finality and it is possible that she owes other parties on unsecured debts who made payments on account of this loan, by reason of contracts to which the Plaintiff/Appellant was not a party but which should have been disclosed in the initial loan contract. In simply lay language she wants an accounting from the real creditor who would lose money if they did not receive payment or credit toward the balance due on the loan for principal and interest.

 

If she is wrong, then the loan is merely one debt, secured by a valid deed of trust. But one wonders why the banks have steadfastly stonewalled any attempts to establish this as a simple fact by producing the actual record of transactions and passage of money exchanging hands in real transactions that support any appearance or presumption of validity of the documents that are being used by her opposition to claim the right to collect on the loan that she freely admits occurred. Why did the bank oppose her attempts at discovery before litigation and after litigation began?

 

If she is wrong and no third party payments were made, then the bookkeeping and accounting entries of the opposition would show that the loan was posted as loan receivable, with an appropriate reserve for default on the balance sheet, and there would be an absence of any documentation showing transfer or attempted transfer of the loan to a party who actually was the source of funds for the origination or acquisition of the loan. The same books and records would show an absence of any entries that reduce the balance due on the loan. And the loan file correspondence of the opposition would not have any reference to fees earned for servicing the loan on behalf of a third party and the income statement would have no underlying bookkeeping entries for receiving fees for acting as the lender, acting as the servicer or acting as a trustee.

 

In some ways this is an ordinary case regarding a deprivation of due process in connection with the potential forfeiture of property and present denial of access to the courts. She is left with both an inability to determine the status of her title, whether it is superior to any claim of encumbrance from the recorded deed of trust, the status of the ownership of her loan where she could obtain a satisfaction of mortgage from a party who either was the creditor or properly represented the creditor, or whether her existing claims evolve into other claims under tort or contract — i.e., a consequent forfeiture of potential claims against the Appellant’s opposing party. For example, by denying the Plaintiff/Appellant’s motions to compel discovery, Plaintiff/Appellant was denied access to information that would have either settled the matter or provided Plaintiff/Appellant with the information with which to prove her existing claims and would most likely have revealed further causes of action. The information concerning the ownership status of her loan, and the true balance of her loan is essentially the gravamen of her claim.

 

But if, as she suspects and has alleged, the parties purporting to be the lender or successor to the lender have engaged in no actual transactions in which the loan was originated or acquired, then the claims and documents upon which her opposition relies, are obviously a sham. This in turn prevents her from being able to contact her real lender for satisfaction, refinance, or modification of her loan under any factual scenario — because the parties with whom she is dealing are intentionally withholding information that would enable her to do so. Hence their claims and documents would constitute the basis for slander of title if she is right about the actual status and balance of her loan.

 

Her point is not that this Court should award her a judgment — but only the opportunity to complete discovery that would act as the foundation fro introduction of appropriate testimony and evidence proving her case. The trial court below essentially acted in conflict with itself. While upholding her claims as being sufficient to state causes of action, it denied her the ability to conduct full discovery to prove her claim.

 

Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884). “Due process of law is [process which], following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” Id. at 708; Accord, Hurtado v. California, 110 U.S. 516, 537 (1884).

685 Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175 U.S. 172, 175 (1899). “A process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and this country.” Hurtado v. California, 110 U.S. at 529.

686 Twining, 211 U.S. at 101.

687 Hurtado v. California, 110 U.S. 516, 529 (1884); Brown v. New Jersey, 175 U.S. 172, 175 (1899); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944).

Non-Judicial Proceedings.—A court proceeding is not a requisite of due process.688 Administrative and executive proceedings are not judicial, yet they may satisfy the due process clause.689 Moreover, the due process clause does not require de novo judicial review of the factual conclusions of state regulatory agencies,690 and may not require judicial review at all.691 Nor does the Fourteenth Amendment prohibit a State from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature.692 Further, it is up to a State to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate.693

The Requirements of Due Process.—Although due process tolerates variances in procedure “appropriate to the nature of the case,”694 it is nonetheless possible to identify its core goals and requirements. First, “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”695 Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests.696 The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.

688 Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890).

 

47 Responses

  1. charles @7:49 – that was my point and I think you missed it. In order to end its guarantee, fnma has to repurchase the loan (v the MBS’s based on the loan?) and I believe they are skipping that repurchase and simply foreclosing in the trust’s name. They shouldn’t be doing that – that’s not the deal, even if it means the same bottom line $$$ to the trust (which is not a fact in evidence at all). It would also be fnma compelling foreclosure on a loan it doesn’t own (without repurchase, fnma is neither the creditor or the ben – it’s no one) – without repurchasing, fnma has no right to do that. FNMA has a choice to make and only one: repurchase the loan or keep making its guarantee payments. I referenced Judge Grossman’s take on the fnma m.o.: he doesn’t like it and says not in my court, and that was only in reference to FNMA having the servicer try to f/c as if in its own right. It didn’t even address (not before the court?) whether or not fnma had actually repurchased the loan and had any interest itself.

  2. @poppy – was that a serious question or snarky? of course attorneys aren’t free. if you’re already paying an atty the question as to depos on a budget doesn’t really apply. i was answering for the pro se perspective.

  3. So, the lawyers in a deposition are free? Oh my

  4. what’s the question about taking depositions on a budget? the only real cost is the court reporter. depending upon the makeup of the litigants, you may or may not have to travel to the corporate office of the party you seek to depose depending on your state’s procedure and rules.

  5. neidermeyer – not sure closing f and f is the answer. Ending their participation in sec’n seems a better way to go. Further, way I got it back in 08 was that fnma accepted non-fnma qualifying loans because the mucks wanted production bonuses (source: one or more of the news channels in 08 based on what seemed like legit info). If the agencies had stayed the course and only accepted loans which actually met their u/w guidelines (requires real quality control – imagine that), I doubt they’d have been in this mess. If they went back to prudent guidelines with qual control and get out of secn, they won’t be compelled to guarantee anyone’s payments for love or money. This is ill-thought imo. But maybe they must feel they won’t be a competitive source if they get out of the guarantee / sec’n business. What should go is secn. I’m pretty much convinced it’s illegitimate even if done acc to Hoyle.

  6. elexquisitor said:
    “So if a stranger to the contract files a notice of default naming a legitimate beneficiary, and that beneficiary does not object, then agency is established.”

    Not exactly imo (and also as phrased, waay overbroad interpretation).
    I think you’re talking about ratification, whereby a principal ratifies
    the act of another, an ostensible agent. This is vip: if the act being done by an ‘agent by implication’ (“implied agency”) / one with ostensible authority requires a writing (like say an assgt of a dot), so does the appt of agency. It’s called the “equal dignities rule”.
    (further, the alleged principal would have to have actual knowledge of the event). Here’s a better explanation toward the bottom:

    http://www.stimmel-law.com/articles/ratification_of_agents_unauthorized_actions_in_real_estate_transactions.html

  7. @neidermeyer – it appears from judge’s ruling in CA that agency can be established by acting on behalf of a principal with their tacit acknowledgment. So if a stranger to the contract files a notice of default naming a legitimate beneficiary, and that beneficiary does not object, then agency is established. The fly in the ointment is when the beneficiary is also a stranger to the contract. In my case the trial court still accepted the “agency”, when in actuality they are a co-conspirator to felony grand theft and false filing, aka, “unclean hands”.

  8. elexquisitor said to gene:

    “What would help with your considerable expertise is descriptive tactics on doing depositions on a budget, for example.”

    Depositions on a budget would be a great topic to cover, but it’s not in the area of an expert witness generally. Depos on a budget (or any depo) is mainly procedural and yes, prob expensive. I’ve asked NG a number of times to help properly annihilate bs hearsay decs and affidavits. The closet we’ve come here that I can think of is the argument in your link (no foundation for testimony, no personal knowledge). In your link, ALS’ witness apparently had industry expertise, but had no personal knowledge of particular facts in the case being argued. Even if a witness testifies to industry practices, what should be or even is normally done, that testimony doesn’t stand to evidence it was done in one particular case (the one at bat). In fact, if a witness testifies x,y, and z would normally be done, then fine. One could concede that’s what’s to be done and then ask them to demonstrate that x, y, and z were actually done, i,e., see if they all put their money where their mouth is.

  9. elexquisitor – got around to listening to the arguments in the 9th. I think the real facts, the real truth, came out at the end. ALS wants the judiciary to modify the law and change the req’s for business records exception. I found it interesting that one jurist asked the h.o.’s attorney what she thought would be necessary for a lender / complainant to establish its interest (while he ack’d it wasn’t her problem). She responded with something I’ve advocated for a long time: if those guys set out on / create a complicated business plan, then they have to accept the burdens which come with it. ALS basically argued that the BR’ exceptions should be expanded – by the judiciary! One jurist said earlier that the laws aren’t going to be tailored for the convenience of any particular industry (mol). Thanks for the link.

  10. @ EEYORE 09:47a

    Seems like you’re making it your hobby to discredit Neil … getting the first post in to attempt to set the tone … nice tactic… but where is your helpful rebuttal? Where do you step in with anything useful?

    Getting discovery is the key … there is ample evidence of third party payments from multiple sources in many cases … simple accounting is what civil court is about …

    *** and having GENE as your shadow on every thread makes this look contrived ***

    Maybe you two experts can tell me how

    1.) It’s OK that AIG payments don’t apply to my side of the ledger or the investor side ,, but it’s OK that they disappear into the ether? (with documented payments to the original shelf funder of the pretenders’)

    2.) Servicer has made payments to master servicer on behalf of borrower (documented) but any possible chain of contract with trust/master servicer was obliterated by sale of trust assets post AIG payout to WL Ross and Co who was owner of note and servicer but retained WF to make the paperwork pretty.

    3.) How does an unsecured party (servicer) sue anyone using a secured parties (trustee) name to cloak them in goodness and light in front of the judge… you keep arguing about seperate contracts that don’t involve the borrower (when talking of CDS’s) but ignore the elephant in the room… (P.S. at no time has the unsecured party informed the court of this deception,, which in some cases would be allowed if the interests of both trustee and sub-servicer did in-fact coincide)

    NOTE : no Fannie/Freddie involvement

    That’s enough for now…

    I’d just like to see something useful and positive out of this bunch for a change. After almost losing (actually went to sale) I’m at a position where plaintiff has no real defense and has offered blatantly false evidence/testimony to the record and I have the $$$ to continue for a long time..

  11. johngault you are saying a key word and that is the loan is “repurchased” which says that something was purchase! Where is the proof of this sale and why does not the Note reflect this sale. If these large agencies could purchase these loan at least one would have a Note reporting this fact.

    Where is there a a “lien” that says that Fannie, Freddie or Ginnie is holding the debt? It all a fraud that started out never expecting such a huge foreclosure crisis. But as we see stuff happens!

  12. I said something at 9:04 which isn’t accurate (said without re-reading the prospectus). I said the fnma repurchase requirement kicks in after four fnma payments. What actually happens after four payments is that fnma MAY repurchase the loan, which is a noteworthy difference. They would WANT to do this to end their guarantee payments, which are kissed good-bye by fnma. When fnma repurchases, it then has a right to any subsequent payments not made by the borrower, but it has no path to recovering its guarantee payments (so it normally is better to repurchase than to keep making kiss-goodbye payments). Whether or not fnma is actually continuing payment or repurchasing, who knows with the way they do things and keep this stuff to themselves best they can (but there’s generally no indication anywhere that fnma has repurchased that I know of). Could they keep making payments and wait for some home-price $$ recovery? Say it costs them 36k to keep making payments, but the expect the property value to go up by 60k (gamble) Maybe; we’d have to re-scrutinize the prospectus to see.
    Win, lose, or draw, those fnma payments prior to repurchase have to be credited to the note and they’re stinking not. imo.

  13. And actually, Charles, what I thought I’d learned about gnma loans in recent times is really only that gnma makes the ins/ guarantee to Issuers unless the Issuer is insolvent. And got me how they can do that. To get the benefit of the guarantee, the Issuer must repurchase what it sold (I’ve already talked about this and how it means the Issuer is then not a hidc, because the only reason to repurchase is because the loan’s in default). Do I, fwiw, think that gang is avoiding this deal they made with GNMA? You bet.

  14. Charles, to the best of my knowledge the agencies don’t fund loans. F & F do buy them. GNMA may buy whole loans, also. I’m not well-versed on gnma and what I might have once thought I knew, I’ve forgotten most of. What I thought I knew that I can recall is that gnma was the F & F of fha and va loans, which were insured / guaranteed by fha and va respectively. Lenders needed a place to get new capital to loan by selling the fha and va loans, and I thought that was to gnma, but like I said, I forget. (today, with secn, the fha ins and va guarantee is supposedly an enhancement). I don’t know what we disagree about, other than the relevance of at least fnma’s third party payments, since I don’t have many opinions about gnma to disagree about. I only ‘jump into (not at) your comments when I think I’m able to say something I believe I know, which as I said, as to gnma, isn’t much. I really don’t diss on your writing skills so much as I get frustrated when I can’t figure out what you’re saying.

  15. The reason the fnma guarantee rate built into the interest rate charged to a borrower strikes me as “distinct” and troublesome is because it’s being charged by and going to be paid to a third party, fnma. I don’t think it falls in line with a lender’s costs because I don’t think fnma charges the lender. It charges the borrower. * Lenders borrow money at one rate and charge another to loan it. Like I’ve said and most of us know, that’s business. I’m making this up: B of A gets charged 3% for long term money. B of A has lots of overhead and needs to make a profit, so after doing some calculating, B of A offers that money to a borrower at 5.5%, some for overhead, some for profit. But, all that difference (the 2.5%) goes to B of A – and that to me is the distinction.

    *Every month when a h.o. makes his payment, he is being charged a fee by a THIRD party which has not been disclosed to him, and regardless of the owner of his note (A, B, C, D), he is going to be charged this fee. I almost feel bad for pointing this out, but not crediting the borrower with payments he has actually paid for fnma to make (as its own enhancement for sales of its MBS’s) tips any scale I have. And btw, where in the servicer’s records is this monthly outlay (the g – fee) to fnma (and I believe there’s one to FHLMC, also)? As further support that this fee should be disclosed, the borrower pays for the FHA insurance and the VA guarantee on his loan and this is disclosed and calculated in the a.p.r. The fnma / fhlmc guarantee fee would be disclosed ‘naturally’ in the a.p.r., but not otherwise as the separate and distinct charge it is; it isn’t interest – it’s an ongoing fee to a third party.
    The fnma guarante imo is even ‘louder’ than fha and va fees because, unlike them, it pays the minute a borrower doesn’t, while the note is still alive.
    lay opinions

  16. @johngault So why are the settlements that FHFA have been receiving is making these lender pay up for bad batches of loans. It get deeper into how your going to place the loan, and then you would be criticizing writing. But I do see how this is a game were the actual originating lender in many cases are going to pool the loans.

    john I know every one want to avoid the issue that you must be a license lender to lend and Fannie, Freddie and Ginnie Mae are not home mortgage lenders and have never originated a single loan.

    You must upfront the monies to close the loans and in a short period of time you will be reimbursed some of that monies for the securities that you will sell to the investors. How if you don’t believe that these trillion and billions of dollars banks cannot float millions, I don’t know if we will ever see eye to eye.

    The industry knows who can and cannot lend. You have never hear of a borrower saying down to Fannie Mae and get a loan? NO, because its never happen.

    These securities are screwed up and because it seem that these Notes are blank and in the case of Fannie & Freddie that monies are exchanged by them as the party buying the securities instead of outside investors, that they actual don’t buy the properties at the foreclosure sale, because the lenders have already sold the securities to them. One loan/property is only worth only let say $100,000 and the securities which include 4 loan at $100,000 per = $400,000. The one property defaults and Fannie already out $100,000 they allowed the bank to draw on the securities, but now there is a foreclosure sale conducted by MERS and Fannie allegedly purchased the property at $80,000. There is no actual exchange in money because Fannie would be out $180,000!

    Fannie was not participating in the HAMP and was not modifying the loans in the securities they purchased!

  17. Charles: “So at no point with this after the fact financial transaction that is between the lender and the investors, and does not have anything to do with the homeowner!”

    Well, charles, I respectfully disagree. They aren’t after the fact transactions in the first place. They are arrangements which have been made before the ink is dry on the borrower’s note. I stand by what I said and it’s public record that FNMA, in its prospectus, does in fact guarantee the certificates:

    Fannie Mae Guaranty – Page 25:

    “We are the guarantor under the trust agreement. We guarantee to each MBS trust that we will supplement amounts received by the MBS trust as required to permit payments on the certificates on each distribution date….
    For providing this guaranty, we receive a fee payable from a portion of the interest collected on the mortgage loans that is not required to be paid to certificateholders………
    Our guaranty runs directly to the MBS trust and not directly to
    certificate holders…”

    If you know what a prospectus is, than you know it’s issued prior to the sale of the MBS’s. It’s clearly not “after the fact”.

    Whether or not an AIG etc payment affects the note depends on what was insured and for whom, but we do know that AIG waived subrogation. If the AIG payment were paid to the party with the right to payment, I’d say – in my lay opinion – it impacts the note balance as a matter of law. If it were paid to a party who had already been paid for the note but hadn’t transferred it, that party owes those funds to the party who didn’t receive transfer.** If a third party made a payment or payoff to a party who was itself fully a third party, he’s either just too dumb if not in violation of any regulatory rules which mandate insurance only for those with insurable interests, and or those funds equitably belong to the guy who owns or has paid for the note, minus the insurance premium. Some of these answers will be found in the rules for regulated insurers and some will be found in the UCC and probably depend on the provisions of any contracts between the insured, those with equitable interests in notes, and the insuror. Even as the borrower is not a party to any of these contracts, he has a cognizable interest in any payment which actually affects his obligation. lay opinions

    **In the absence of an agreement which speaks to the issue, what does the default-law UCC say about third party payments to one who has been paid for a note but not transferred it? I don’t know.

  18. Charles Reed please could you answer J G on this issue- he said
    ” And that reminds me, who would have the authority to be the seller for the trust when fnma must repurchase”

  19. You must remember that just as you got auto insurance as these loans had insurance that a claim does not payoff if there is a lapse in the premium amount. There are payment due to the “investors” that purchase these securities and the insurance providers. So at no point with this after the fact financial transaction that is between the lender and the investors, and does not have anything to do with the homeowner!

  20. elexquisitor – well, two days to respond doesn’t sound kosher. Procedure is a drag, but critical. It’s sad but appears true that when some judges don’t fear an appeal, it’s time for more Cole Porter (“Anything Goes”.) I don’t know anything about judges farming stuff out in litigation, so can only commiserate. It must be frustrating beyond belief to not have your pleadings read. I guess they think pro se’s just sit down and compose them in five minutes or don’t care one way or another.

  21. Gene said:

    “…..or else servicer advances to the Trust were in facts payments to the Trust on the behalf of the homeowner.”

    I don’t think NG actually said that or means it that way. Servicer advances are made on behalf of FNMA, who volunteered payment if the borrower’s p & i weren’t received for its OWN benefit, as an enhancement for the sale FNMA wanted (and charged the borrower in effect to make).

  22. And that reminds me, who would have the authority to be the seller for the trust when fnma must repurchase, if it’s the asset of the trust, the loan, which is being repurchased? Where is the evidence of the repurchase (note transfer, assignment)? No wonder judges like Grossman don’t like FNMA’s m.o.
    Apparently, FNMA tells the servicer to go for it as if in its own right, which is what displeased Judge Grossman (as I recall only). And that case probably didn’t address the matter of FNMA’s own repurchase and evidence of (is that because they just skip it?) and foreclose in the trusts’ name? That sin would’ve been hidden much better pre-Consent Order.
    It looks to me like these loans are supposed to be dead-ended with the trusts (whom in my opinion can’t “do business” – first got that thought our of a PSA* fwiw), but in order to enforce them, they had to create a most torturous plan or five.
    *The psa said someone else might foreclose so the trust wouldn’t be seen as doing business. If they have any contracts they’re allegedly acting pursuant to, then they damn well better be honoring the ones they will just about kill to keep from us. Like I say, who’s the bum?

  23. Hmmm…if FNMA (on loans which went thru fnma, of course) reimburses the servicer for its advances, which it does, if a servicer may also collect by a subrogation right of sorts, that strikes me as double recovery for the servicer. In the absence of the fnma guarantee and reimbursements, a contract could give a party, like the servicer, subrogation rights under the note in any other deal but these particular entities, because, if such a contract existed, for whatever it’s worth or not (not = negative here), such a contract could lead to a lien on the asset of a trust. That doesn’t strike me as Hoyle for these particular trusts. As to the availability of FNMA to be reimbursed – under the note – by the notemaker or his sale proceeds, I don’t see it. FNMA is legally a volunteer as to its guarantee. Even if on some theory or another, fnma had a cause of action for its voluntary guarantee payments against the note maker, it wouldn’t be under the note. In order to end its guarantee payments, FNMA must repurchase whatever it sold which is guaranteed. FNMA may not continue making guarantee payments; the payments are limited to four, and then the repurchase requirement kicks in. By making those payments and repurchasing, FNMA has fulfilled its obligation and now owns the note, but it must yet credit the note with its up-to-four payments. And there is generally no record that FNMA has fulfilled that obligation – at least in public record and by way of who is showing as the foreclosing party (the trust these days).
    As it turns out, the borrower pays for what I thought was a guarantee of largess (for who knows why – not I) in the form of the “g-fee” factored into the rate. Whether or not the fact that the borrower actually pays for this is relevant in any other regard, haven’t gotten that far. To not credit a borrower with guarantee payments he’s paid for isn’t quite insult to injury, but it’s close. I haven’t figured out as a legal matter what to make of the borrower paying the g-fee, but I see it as wrong or at least not good to keep it from a borrower that his interest rate includes a guarantee fee. Whether or not it’s legally wrong to not inform a borrower – nope, I don’t know because while it’s factored into the rate charged, so are a lot of other things and most if not all of them are none of the borrower’s business. But this one does strike me as distinct.

  24. @jg – my reality in CA is your discovery motions are farmed out to a commissioner with a ‘thumbs up’ or ‘thumbs down’ by the judge. The commissioner stated I could waste my peremptory challenge if I wanted. Most parties with counsel know to do so. Afterwards I discovered commissioner was reversed in appellate court many times over the application of Byzantinian rules of evidence code.

    Came back anyway for round two, and trial court on its own motion farmed me out to a ‘discovery facilitator’ who turned out to be a ‘compulsory arbitrator’ who didn’t bother to even read my pleadings. So I didn’t sign the ‘agreement’. Judge went with arbitrator in my motions to compel, even though one was unopposed. Furthermore, didn’t issue tentative ruling; didn’t present ruling at hearing; delayed ruling to a point where I had 2 days after receiving ruling in mail to adjust and file my oppositions to 2 summary judgment motions.

    It takes its toll on your mind. That might explain KC’s juvenile posts here.

  25. Yeah, okay, so pretend NG didn’t write it as an expert, but that it’s something he or another attorney wrote in a brief for his client. Imo, if there’s to be a critique, and why not, that’s what it should be on. “There is no trial without discovery.” If a court sustains an opp to a mtn to dismiss or for sj, to me, it’s an absurdity to not set a case mgmt schedule, including discovery.

  26. http://banking.about.com/od/loans/a/recourseloan.htm

    I’m linking this because while it primarily discusses recourse and non-recourse loans which is good to understand, it also says this:

    “In the event of default, your tax liability may depend on whether or not you have a recourse loan. Our tax expert discusses these issues in his article: Foreclosures and Taxes.”

  27. One … Two … Three

    *Mortgage Note* … * Note* … *I not revocable DOT*

    Pig …

    P.I.G. … E.I.E.I. O

    Dag Nabbit!

  28. Link to 9th Circuit oral arguments – http://www.ca9.uscourts.gov/media/view.php?pk_id=0000012421 Junod v MERS.

  29. @Gene – no reason to waste my time studying CDS. More important to know rules of discovery and appellate in CA. As long as the trial courts here continue to run interference for the banks by denying discovery, the CDS will not come into play. If allowed the argument in my case (judicial notice after Respondent’s Brief) of third party payment by JP Morgan (see below), that raises the question on every loan in CA in which JPM claims beneficiary interest whether a default actually remains. The death of that presumption weakens the judge’s blanket assumption that the borrower “owes someone”, as presented by the 9th Appellate judge in the recent oral argument link. So sometime after the actual business records start issuing forth from lenders / investors may be the time to “study up on CDS”, if it’s even necessary then.

    What would help with your considerable expertise is descriptive tactics on doing depositions on a budget, for example.

  30. tnharry,

    Yeah, Bob Hurt seems on top of things.

    BTW, I have been through 702 Hearings to establish my credentials. I wonder if Garfield has……………

  31. elexquisitor

    I suggest that you study up on CDS and other things that I have suggested. Quit believing what you generally see what is posted here.

  32. Nice oral arguments regarding business records exception from FL case – http://oavideo.1dca.org/OAPlayer.aspx?ID=1584&CaseID=42021&File=126071.smil. Note reference to software platform processing when servicer changes.

  33. @Gene – The NM SC case is about 6 words – alienation of title; finality between parties. The trial and appellate courts don’t get to violate the rights of citizens in the respective states to clear title to real estate. True, the explanation of applicable legal concepts pointed to NM law for application, but the same concepts exist in other states, such as CA, particularly in the area of the UCC – holder in due course explanation. And title concepts don’t exist in the federal decision upon which the CA decisions of non-judicial foreclosure are primarily based.

    As for third party payments, I stuck to the publicly announced ‘penalties’ Kamala Harris had JP Morgan pay back into the MBS held by CalPERS, the state retirement fund for judges, without mention of a schedule of the loans affected.

    If a CDS (credit default swap) can be equivalent for the ‘value received’ in an assignment negotiation of a loan, and subrogation of insurance attaches to the CDS, is that not, in effect, a third party payment?

    @tnharry – Bob Hurt’s diatribe against NG over Salazar is hardly a fair assessment of the concepts presented here. The facts are the pro se plaintiffs presented no facts pertinent to their case that applied to the concepts presented by NG, so there was no assessment by the court as to the validity of the concepts themselves. As for Connelly, the court found “Plaintiff fails to explain this theory sufficiently and fails to explain how errors in the securitization of the Note are germane to him.”, which is a procedural mistake, not an invalidation of the legal concept attempted to be presented. Hurt is not an attorney, and doesn’t state whether he was able to even save his home from foreclosure or not. The fact there are no comments on your linked Hurt article is testimony as to its worth of consideration here.

  34. I have had the same problems with my pretender lender WFHM. They have refused to even give me an accurate account detail of my payment history ( partially made up ). I have questioned them on several occasions on who actually owns the note and deed only to get conflicting written responses. One response would be, we own your note. Another response would be, we are not the note holder, Freddie Mac owns your note.

  35. Not sure who Bob Hurt is, but based on the quality of the legal “advice” being given lately I’m not sure he’s on the wrong path :
    http://bobhurt.blogspot.com/2013/04/neil-garfield-expert-or-bozo-revised-to.html

  36. When my foreclosure took place, the servicer who did not have legal standing and was not the holder of the note, having not an assignment be given, but arranged through a fraudulent affidavit to the court foreclosed on my home with a credit bid. An equity line of credit, and then ordered a Vacate order. The Servicer had not placed funds or held any ownership stake in the loan contract. The Servicer was simply given the authorization by the Lender, the Holder of the note, as indicated in the affidavit for the foreclosure hearing.
    A few weeks later we get a 1099A, showing the full amount of the loan reported. Seven weeks after the sale we received a letter from a collection company announcing that they were contacting me on behalf of the Lender. It is now very clear as to their scam, and what had taken place with these two fraudsters. The Lender as the Holder of the note may have authorized the servicer to finalize the foreclosure detail, but the Lender’s legal standing to enforce the note is now in full gear to use it to have a collection company charge me with the funds that I do not owe. They took my home that was an illegal foreclosure to start with. Of courser we know that together the Servicer and the Lender had a plan. Foreclosure, fool the court, then as the Holder of the Note take the legal standing to come after me through a collection agency since the fraudulent foreclosure is not something the collection agency has any thing to do with.

  37. And as for ” facts” the ” facts” may be cherry picked and other material facts onitted and/ or concealed from
    The court which would complete the record! Do your own digging folks evidence of the ” facts” make them true otherwise its… Hearsay. Right here its hearsay.

  38. Each case is different but due process and discovery must be an equal right
    And thats all i have to say about that

  39. The New Mexico case is not jurisdictional. CA Courts will look to case law within the state before even considering the NM case.

    As to your case being similar to the NM case, how can you really tell? You are relying on what is posted above, without know the specific facts of the case.

    It appears that NG is once again trying the argument that CDS paid off the loan, or else servicer advances to the Trust were in facts payments to the Trust on the behalf of the homeowner.

    These arguments are so patently absurd that it defies belief. CDS is a separate contract between parties and counterparties. They only use the Trust as a reference and nothing more. The Virginia court case clearly stated this, and it is the only one to address such issues. (For a Wall Street expert, NG does not understand CDS.)

    The advance issue is a contract between the Servicer and the Trust. It is for all purposes a loan, whereby the Servicer will collect the advance back, based upon certain events occurring, the most common of which is a foreclosure.

    It is not a payment being made on behalf of a borrower. Not in the slightest way can it be interpreted as such.

    Furthermore, the homeowner would be a 3rd party beneficiary even trying to make such a claim. So to even make the claim, it would be dismissed upon those grounds alone.

    Ever wonder why you never see any rulings from courts about this in homeowner favor? Oh…right…..NG says that he is tracking thousands of these types of cases and they are settling with non disclosure agreements in place. Ask him to prove it. Have him provide the cases so you can look up the allegations at the very least.

  40. One, .. Two, .. They Snookered Me To!
    Three, .. Four, .. They Wanted More!
    Five, .. Six, .. Mix of Stix! Pick your Fix!
    Seven, .. Eight, .. Enters the MERS gate!

    Nine, .. Ten, .. Never to be seen again.

  41. Good Morning Sunshine, …… Hello Spring.
    Gardening Time!

    How many Notes ?

  42. Timing is everything. I filed my Reply Brief a week ago. Today the Appellate Court (CA 1st Dist) is showing they have a database problem and can’t show my case info. My case parallels the scenario above and is so closely aligned with the NM Supreme Court case I cited it in my Reply.

    @tnharry – even judge can be “cross examined” by submitting the case to appeal, who then looks at it de novo.

  43. tnharry,

    You are correct again.

    I have testified in CA courts as an Expert Witness for homeowners, with the ability to provide analysis of lender’s policies, practices, procedures, Ability to Pay and Damages. When I testify, it is about the facts.

    I cannot engage in random speculation. What I say, I must be able to back up what I say with facts and documentation.

    When it comes to issues of Compliance, I can quote the TILA/RESPA statutes, and say that the documentation provided either meets the compliance levels or do not, but I cannot go beyond that point at all.

    Once again, garbage in and garbage out.

  44. What case is this?

  45. again I am baffled by NG’s post. one can not be retained to testify as an expert witness on these issues. As an expert witness testifying on one’s opinion, you can be a forensic accountant, a handwriting examiner, or a doctor, but in a trial setting, the only expert in the room who is allowed to opine on the ruling of the law is the judge.

    this one doesn’t grossly misstate the law as some recent posts have, but it falls into the category of bottom of the bird cage just the same.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: