Another PennyMac Crash! CA Case for Homeowner

American jurisprudence is clearly still struggling with the fact that in most cases the forecloser either does not exist or does not have any interest in the loans they seek to enforce. In virtually all instances PennyMac is acting in the role of a sham conduit while allowing its name to be used as the front for a nonexistent lender.

Such foreclosers use semantics and legal procedure to create and cover-up the illusion of “ownership” of the debt (the loan) and the illusion of having the rights to enforce the note bestowed by a true creditor. This case opinion is correct in every respect and it conforms with basic black letter law in all 50 states; yet courts still strive to find ways to allow disinterested parties to foreclose.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-
Hat tip to Bill Paatalo
see GULIEX v. PennyMAC HOLDINGS LLC, Cal: Court of Appeal, 5th Appellate Dist. 2017 https://scholar.google.com/scholar_case?case=9436462246811997539&hl=en&lr=lang_en&as_sdt=2006&as_vis=1&oi=scholaralrt
This case amply demonstrates the following:
  1. The need for a chain of title report
  2. The need for a chain of title analysis
  3. The need for legal research and good memorandums of law
  4. The need to understand “chains of title” or “chains of events” and the laws applicable thereto (e.g. judicial notice, legal presumptions etc.)
  5. The need to formulate a presentation to the judge that is very persuasive.
  6. The need to appeal when trial judges don’t apply the law or don’t apply the law correctly.

The following are significant quotes from the case.

Plaintiff, a homeowner and borrower, sued the defendant financial institution for wrongs allegedly committed in connection with a nonjudicial foreclosure sale of his residence. Plaintiff’s main theory was that the financial institution did not own his note and deed of trust and, therefore, lacked the authority to foreclose under the deed of trust. (e.s.)

The financial institution convinced the trial court that (1) it was, in fact, the beneficiary under the deed of trust, (2) a properly appointed substitute trustee conducted the foreclosure proceedings, and (3) the plaintiff lacked standing to claim the foreclosure was wrongful. The financial institution argued its chain of title to the deed of trust was established by facts stated in recorded assignments of deed of trust and a recorded substitution of trustee. The trial court took judicial notice of the recorded documents. Based on these documents, the court sustained a demurrer to some of the causes of action and granted summary judgment as to the remaining causes of action. On appeal, plaintiff contends he has standing to challenge the foreclosure and, furthermore, the judicially noticed documents do not establish the financial institution actually was the beneficiary under the deed of trust. We agree. (e.s.)

As to standing, the holding in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova) clearly establishes plaintiff has standing to challenge the nonjudicial foreclosure on the ground that the foreclosing party lacked the authority to initiate the foreclosure because it held no beneficial interest under the deed of trust. (e.s.)

As to establishing facts by judicial notice, it is well recognized that courts may take notice of the existence and wording of recorded documents, but not the disputed or disputable facts stated therein. (e.s.) (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (Herrera).) Under this rule, we conclude the facts stated in the recorded assignments of deed of trust and the substitution of trustee were not subject to judicial notice. (e.s.) Therefore, the financial institution did not present evidence sufficient to establish its purported chain of title to the deed of trust. Consequently, the financial institution failed to show it was the owner of the deed of trust and had the authority to foreclose on plaintiff’s residence.

We therefore reverse the judgment and remand for further proceedings.

….

The Links in PennyMac’s Purported Chain of Title

“Links” in a chain of title are created by a transfer of an interest in the underlying property from one person or entity to another. An examination of each link in the purported chain of title relied upon by PennyMac reveals that certain links were not established for purposes of the demurrer. Our analysis begins with a description of each link in the purported chain (and each related document, where known), beginning with the husband and wife who sold the residence to Borrower and ending with the trustee’s sale to PennyMac.

Link One-Sale: Clarence and Betty Dake sold the residence to Borrower pursuant to a grant deed dated April 19, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Two-Loan: Borrower granted a beneficial interest in the residence to Long Beach Mortgage Company pursuant to a deed of trust dated June 21, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Three-Purported Transfer: Long Beach Mortgage Company purportedly transferred its rights to Washington Mutual Bank by means of a document or transaction not identified in the appellate record. Also, the appellate record does not identify when the purported transaction occurred. Borrower disputes the existence of this and subsequent transfers of the deed of trust. (e.s.)

Link Four-Purported Transfer: Washington Mutual Bank purportedly transferred its rights to JPMorgan Chase Bank, National Association in an unidentified transaction at an unstated time. (e.s.)

Link Five-Assignment: JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, purportedly transferred the note and all beneficial interest under the deed of trust to “JPMorgan Chase Bank, National Association” pursuant to an assignment of deed of trust dated July 25, 2011, and recorded on July 26, 2011.

Link Six(A)-Assignment: JPMorgan Chase Bank, National Association transferred all beneficial interest in the deed of trust to PennyMac Mortgage Investment Trust Holdings I, LLC pursuant to a “California Assignment of Deed of Trust” dated September 14, 2013, and recorded on November 15, 2013.

Link Seven-Trustee’s Sale: California Reconveyance Company, as trustee under the deed of trust, (1) sold the residence to PennyMac at a public auction conducted on November 20, 2013, and (2) issued a trustee’s deed of sale dated November 21, 2013 and recorded on November 22, 2013. PennyMac, the grantee under the deed upon sale, was described in the deed as the foreclosing beneficiary.

Link Six(B)-Purported Assignment: The day after the trustee’s sale, JPMorgan Chase Bank, National Association executed a “Corporate Assignment of Deed of Trust” dated November 21, 2013, purporting to transfer the deed of trust without recourse to PennyMac Holdings, LLC. The assignment was recorded November 22, 2013. This assignment was signed (1) after JPMorgan Chase Bank, National Association had signed and recorded the “California Assignment of Deed of Trust” described earlier as Link Six(A) and (2) after the trustee’s sale was conducted on November 20, 2013. Consequently, it is unclear whether any interests were transferred by this “corporate” assignment.

3. Links Three and Four Are Missing from the Chain

Postscript from Editor: This Court correctly revealed the fraudulent strategy of the banks, to wit: they created the illusion of multiple transfers giving the appearance of a solid chain of title BUT 2 of the transfers were fake, leaving the remainder of the chain void.

13 Responses

  1. This case needs to be published to be citable since it is one of the rare rulings in favor of the borrower.

    Please send requests for publication to the 5th DCA. See Cal. R. of Court, R. 8.1105 and 8.1120.

  2. I would like to thank this website for existing. I refer to this website for the information it provides. Not everything is effective but most of it is. This case is a Pro Per case. I have been assisting Mr. Guliex since before his home foreclosed. When they foreclosed, this lawsuit was filed. When the courts dismissed everything, I asked him not to give up. Throughout the years, with help of websites like this and Stan Burman, I have done my research and I have compiled tons of information and trusted in the law, not the judges. Mr. Guliex had faith in the assurance I gave him. I assisted him with all of his paperwork, opening and reply briefs. For oral arguments I recommended he retain one of the attorneys I work with to make the points that were made in the opening brief. She did a beautiful job! Hard work, dedication, and passion pays off. This ruling was validation that we are not crazy! I believe there are more to come just like this. When you believe you are right because it’s based on written law, fight all the way. Do not give up. You cannot win if you quit. I would love to assist anyone who needs help and can’t afford an attorney. You too can win!

  3. CORRECTION:

    Supplant “for” with “the”, to wit:

    I’d argue that [the] following section….

  4. @ “masterservicer” A/K/A Maher Soliman

    Respectfully, although it appears you are still speaking in tongues, the term “capitation” made it through.

    I’d argue that for following section of the California Financial Code is a better route to distinguish and argue:

    DIVISION 3. CHECK SELLERS, BILL PAYERS, AND PRORATERS
    12000-12404

    Just one man’s opinion.

    That is all.

  5. CAPITATION …CONDEMNATION BY THREAT OF EMINENCE NO FRAUD FOR GODS SAKE

  6. Reblogged this on Deadly Clear and commented:
    Why are the CA courts afraid to publish these decisions? Ridiculous! It’s time to expose the corruption and pitiful slaughtering of our land titles and records.

  7. I wish I could get a good lawyer to help us with our 2nd appeal getting ready to go to briefing. We won 1st appeal from our 2014 San diego UD post foreclosure due to no substitution of trustee, yet on remand the bank atty got a summary judgement after submitting a newly found SOT, post appellate decision two years later, and when we TRIABLE ISSUES OBVIOUS. We can make small monthly payments but without help I will lose for sure on some procedural issue.

  8. Hopefully, the Opinion for Mr. Guliex will get published.

  9. @ Stan Burman

    Equally important in the non-judicial context is the ruling’s explanation of standing to bring suit, and the distinguishment of the “types of wrongful foreclosure” cause(s) of action,and the elements for each one, to wit:

    Irregular Foreclosure vs. Unauthorized Foreclosure.

  10. Reblogged this on California freelance paralegal and commented:
    This is a huge win for the homeowner and should read by anyone in California that is dealing with a similar issue. In particular this case discusses the fact that judicial notice in California cannot be taken of the truth of any disputed facts alleged in recorded documents and that a defendant cannot offer evidence of additional facts to support a demurrer as so called “speaking demurrers” are not allowed.

  11. All fraud, fraud all the time.

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