Sciarratta: Harm occurs when an entity without Standing Forecloses.

slow_clap_citizen_kane

 

“The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.”

“[O]nly the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt . . . .” (Yvanova, supra, 62 Cal.4th at p. 928.). The court was not influenced by the creation of a false assignment post-foreclosure sale, and ruled according to the recorded documents.”

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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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2016 05 18 Sciarratta

Kudos to the attorney  Stephen F. Lopez  who handled this case at both the trial and appellate level.
The Supreme Court of California in Yvanova opened another door to stop a wrongful nonjudicial foreclosure case in California. Apparently the California Appeal courts are starting to see through the false claims and false arguments that Banks have been using for years to wrongfully foreclose. The Sciarratta decision confirms the standing rule in Yvanova: “The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.”

 

The old argument that has been parroted thousands of times by Judges across the country has been trashed: “What difference does it make who the money is owed to, the Borrower is in default” There are so many things wrong with that statement but I’ll limit it to two: (1) That statement opens the door to a fraudulent industry that all the banks ran through — claim a debt and then collect on it and (2) how can there be a legal default to someone you don’t owe any money to?

 

In Sciarratta v. U.S. Bank, Monica Sciarratta alleged that because of a void assignment (void not voidable) of her promissory note and deed of trust that the party (Bank of America) attempting to foreclose on her home had no interest in the underlying debt or the property and therefore should be barred from foreclosing. This case exemplifies what courts should do when confronted with factual evidence, to wit: no court should arrogate jurisdiction to themselves — making up facts and then applying erroneous presumptions in favor of a bank who is using deceptive tactics to steal a home. As the Appeal Court ruled, “When a non-debt holder forecloses, a homeowner is harmed by losing her home to an entity with no legal right to take it.” It is pathetic that an Appeal court must point this out, but obviously they thought the lower court might not understand the take away message: A homeowner is harmed when an entity with no right to take it, takes it.

 

The court held to basic principles of law, complied with the Yvanova standing ruling and expanded into issues of prejudice and wrongful foreclosure. Sciarratta proclaimed that since her Note was assigned to Deutsche Bank from Chase according to recorded documents, Chase could not also assign their interest to Bank of America after they had already conveyed their interest to Deutsche and therefore the assignment was void. Bank of America had no right to foreclose or make a credit bid- despite the fact that they filed a slick “corrective assignment” a month AFTER the non-judicial foreclosure. The Appeal court confirmed our point stating, “[O]nly the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt . . . .” (Yvanova, supra, 62 Cal.4th at p. 928.). The court was not influenced by the creation of a false assignment post-foreclosure sale, and ruled according to the recorded documents.

 

Although the Yvanova v. New Century Mortgage Corp., (62 Cal.4th 919 (2016)), decided that a homeowner has standing to sue for wrongful foreclosure, Yvanova did not address “any of the substantive elements of the wrongful foreclosure tort,” and did not address “prejudice . . . as an element of wrongful foreclosure.”

 

The Court of Appeal found that, “[A] homeowner who has been foreclosed on by one with no right to do so -by those facts alone- sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure. When a non-debt holder forecloses, a homeowner is harmed by losing her home to an entity with no legal right to take it. Therefore under those circumstances, the void assignment is the proximate cause of actual injury and all that is required to be alleged to satisfy the element of prejudice or harm in a wrongful foreclosure cause of action.”

 

The opinion stated that, “The potential consequences of wrongfully evicting homeowners are too severe to allow such a result.” The court concluded that “a homeowner who has been foreclosed on by one with no right to do so—by those facts alone—sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure. When a non-debt holder forecloses, a homeowner is harmed by losing her home to an entity with no legal right to take it.” Therefore, the homeowner does not need to allege prejudice or harm- it is a given in a wrongful foreclosure. It is unconscionable that most courts don’t seem to grasp this simple legal maximum: If you don’t own it- you can’t have it. Boom. End of discussion.

 

The Court of Appeal reversed the judgment of dismissal entered after the trial court erroneously sustained a demurrer to Sciarratta’s first amended complaint without leave to amend, and remanded for further proceedings. We will see how the trial court responds to this ruling.

 

My concluding comment is that the courts have been running wild under the directive to protect the bank and our financial system. That is not the job of the courts. The judiciary is and was always intended to be a separate branch of government that served to check and balance the power of the legislative and executive branches of government. It was never intended that the courts should do the bidding of either of the other branches of government.

 

It was always the intent that courts should apply common law precedent and properly enacted statutes. Had they done so there is sufficient evidence in the “settlements” and all the decisions in which the homeowners won their case to presume that most of the foreclosures were wrongful and fraudulent.

 

Had the Courts spent their time demanding evidence instead of assuming facts that were (a) not in evidence and (b) untrue, millions of homeowners would still be in their homes and millions of beneficiaries of managed funds would not be facing reductions in pensions caused by the theft of their money by Wall Street banks.

 

The remedy is and always has been a direct interaction between investors and borrowers, albeit through associations or agencies that truly represented the interests of both sides. “Servicers” and “trustees” should be removed from their role as volunteer intermediaries, having no authority to service loans nor represent the interests of investors. That has produced the effect of minimizing the amount received by investors and maximizing the “profit” of the banks acting as “Master Servicers,” “Trustees” and “underwriters.” As it stands, the theft goes on and investors are being coerced into settlements with investment banks that are telling them that it doesn’t matter what they did. In the meanwhile the theft continues.

 

see https://theintercept.com/2016/05/18/foreclosure-fraud-is-supposed-to-be-a-thing-of-the-past-but-it-happens-every-day/
also see http://www.digitaljournal.com/pr/2944787

 

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10 Responses

  1. If you have the money to hire an attorney, then you are one of the lucky ones. But, then you have allllll this money for an attorney, why didn’t you pay your mortgage. The attorneys are raping us also and in the end, the banks win and attorney gets fatter. I had, forensic evidence that my note could not be found. I requested the judge to have them produce the original note. The bank attorney walked in with some paper notirized stating that person saw the original and the judge allowed it and now!!! I am in the street and they sold my house for over $150,000.00 more than what I owed.

  2. Mr Garfield. While you prefer we stay on topic I hope this once you will pardon me as my comments are addressed to Mr Hurt who is l likely lurking.

    Like many people fighting for my home and learning law by the seat of my pants, Mr. Garfield has been a God send. Always knowledgeable, always up on the latest developments. When you became a presence I initially enjoyed hearing your point of view. My feeling is that the more of using lending our thoughts and sharing the knowledge, the better for us all. However you seem less than comfortable with divergent points of view and Mr Garfield has become the focus of your apparent ire. You claim he misled people and charges for his services. I will not suggest that I necessarily agree with him or believe he’s always right but I find his ideas thought provoking. I also feel he is entitled to charge for individual services if he chooses to. My guess is that this is the crux of your attitude towards him as you too have your own take on how to combat the banks and a product you would very much like to sell which you claim is better than any other.

    Here are the differences that I see between you. Mr Garfield has invested untold hours in complying information that is available to homeowners for free. His site is a place we can always go to to find the latest developments.
    You have a website in which you provide helpful and relevant case law but little commentary. In fact most of time is spent vilifying My Garfield’s point of view. The other part of your time seems to be spent in virtually bullying readers into purchasing your product.

    Your product differs from what Mr Garfield is selling in that you provide little information about it though apparently it has something to do with predatory lending (I hope along with that you provide all the various ways of working around the SOL and explain the technical difficulty involved). It also differs from Mr Garfield’s product by being considerably more expensive. That’s the free market for you. But here’s what it comes down to for me. Mr Garfield is an attorney and he behaves like a gentleman. You, Mr Hurt are not an attorney and your behavior is childish. You engage in name calling and childish put downs. If you disagreed with Mr Garfield you need to do so in an reasonably professional way if you want to be perceived as someone that homeowners trying to save their homes would find credible and trustworthy.

  3. @ Papergate

    I, for one, would be interested in reviewing the Sciarratta v Chase case documents.

    Might you consider uploading the case documents to “google docs” and then posting a link for download?

    Thank you in advance.

  4. I invested in the underlying Sciarratta v Chase case documents filed by Steve Kop, an LA attorney who did an excellent job articulating in the original complaint what has been hard for parties to set out in pleadings. I suggest you read the complaint filed in 2009. Out of support for Neil and all the great work he does I will gladly give the documents to anyone who wants them. The case was lost – but for all the wrong reasons – which is why it is an excellent read – if this complaint were filed now it would probably have a different outcome.

  5. A comment and question.
    We fought UD CA based on no substitution of trustee recorded giving authority to foreclose, we lost. We appealed. We WON, PLAINTIFF ATTY IN BOTH TRIAL COURT AND APPELLATE COURT. NEVER PRODUCED A SOT CLAIMING WE DIDNT PROVE WE DIDNT. reversed and remanded to trial court CONSISTANT WITH ETC. SPECIFICALLY TO VACATE UD ON 08/##/2014 Appellants RECEIVE cost on appeal. ABOVE COMMENT WONDERING HOW TRIAL COURT WILL RESPOND, WELL WE ARE HEADING TO A MOTION FOR SUMMARY JUDGEMENT THAT TRIAL JUDGE RELUCTANTLY CONTINUED TIL THIS WEDS. HE NEARLY RULED IN FAVOR OF BANK WHO IS CLAIMING THEIR ARE NO TRIABLE ISSUES. THEY PROBIDED A SOT THAT WAS APPARANTLY RECORDED IN. 2013. I nor investigator could locate until provided doc number. So now the mystery is if trial judge will favor bank and take appellate remand to mean that we lose and possession goes to bank by end of month.

    QUESTION: during the process of filings of MSJ bank provided a letter from HSBC giving me much sought after trust info claiming they are plaintiff as well as an attorney affidsvit claiming they are atty for HSBC (plaintiff in case) however HSBC has never been named nor are there any recorded assignments and the WAMU AR9 TRUST NAMED FROM 2006 HAS NEVER BEEN NAMED.

    IS BANK BEING STRATEGIC IN SOMEWAY ITS BEYOND MY COMPREHENSION. I WAS GONNA USE LACK OF STANDING AT MSJ BUT TOO EASY OR CAN SOMEONE OFFER A PURPOSE FOR THIS.

    AND I WISH I HAD FUNDS TO CONSULT BUT I DONT HAVE BUS FARE. WHICH BY THE WAY I PAID 20000 IN MONTHLY PAYMENTZ PENDING APPEAL THAT UNBEKNOWN.TO ME APPARENTLY ARE NOT RETURNABLE. ITS FREE MONEY PAID TO PITE DUNCAN OR FREDDIE, AND NOW THEY WANT A FREE HOUSE TOO:)

  6. Hey everybody …. does anybody around here know how to search FDIC for a mortgage loan ### ???

    Seems many may have been discharged and I am wondering if there is anyway to verify this?

    Thanks and Make it a Great Day.

    Scott Thompson
    http://www.columbiamortgageplus.com

  7. @ consumerrightsdefenders ,

    I know you are California based … What states do you represent homeowners in?

  8. Steve. I may call you early next week. I would love to resurrect my wrongful foreclosure in NJ !!!!

  9. one must understand how it works. see my exchange with jamie dimon, ceo jpm:

    Richard Davet

    2009 JPM Shareholder’s meeting

    Exchange with James Dimon CEO and Chairman

    As you know, for years, the Bank has been and continues to be major players in its mortgage business in what has come to be known as the “Government Sponsored Enterprise (GSE) Business Model”.
    In September of 2008, Treasury Secretary Paulson declared that, and I quote, “these enterprises pose a systemic risk”. Your mortgage business goes 90%+ to Fannie Mae on a daily basis.

    Much has been written about the GSE flawed business model, including a Wall Street op-ed by George Soros which calls the model “hopelessly conflicted” and “it simply doesn’t work”.

    ? 1, When do you and the Board intend to disclose to shareholders the consequences of the Bank’s vigorous involvement with this fatally flawed business model?

    ? 2 Isn’t this business a little like your running a house of ill repute while knowing that all your ladies have aids and what are you doing to your client base?

    ? 3, What would you say to the skeptics that are out there that think that all players involved with the GSE Business Model are engaged in a simple criminal scheme, albeit of a dimension that we have never seen before, that a prosecutor would call “theft by deception” with the American taxpayer as the victim?:

  10. In light of the recent Yvanova decision……Call about resurrecting your wrongful foreclosure matter….at 818.453.3585 ask for Steve or Sara at Consumer Rights Defenders.

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