11 Responses

  1. MY PERSONAL ASSESSMENT OF UNLAWFUL DETAINER ACTIONS AFTER FORECLOSURE IN CALIFORNIA.

    Based on my limited experience, during actions based on Code of Civil Procedure Section 1161a, (unlawful detainer after foreclosure) plaintiffs routinely rely on mandatory judicially noticed public statutory law, judicially noticeable documents, conclusive presumptions and conclusive evidence to win their cases.

    Mandatory judicially noticed public statutory law is all of the current public statutory law enacted by this state.

    Judicially noticeable documents are documents that the court recognizes and accepts the existence of, without necessarily accepting it truthfulness.

    Conclusive presumptions are facts once established as conclusive; no other evidence can be submitted to dispute it.

    Conclusive evidence is evidence that cannot be controverted.

    My assessment of what actually happens is that, plaintiffs (namely but not exclusively, third party bidders) depend on six judicially noticeable documents being accepted by the court as evidence and the conclusiveness of three public statutory laws.

    The six documents are (I) the deed of trust, (II) the assignment of deed of trust, (III) the substitution of trustee, (IV) the notice of default, (V) the notice of trustee’s sale and (VI) the trustee’s deed upon sale.
    And the three statutory laws are (i)Cal. Civ. Code Section 2924(c), (ii)Cal. Civ. Code Section 2934a(d) and(iii)Cal. Evid. Code Section 622.

    According to Cal. Civ. Code Section 2924(c), a recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.

    According to Cal. Civ. Code Section 2934a(d), a trustee named in a recorded substitution of trustee shall be deemed to be authorized to act as the trustee under the mortgage or deed of trust for all purposes from the date the substitution is executed by the mortgagee, beneficiaries, or by their authorized agents. Nothing herein requires that a trustee under a recorded substitution accept the substitution. Once recorded, the substitution shall constitute conclusive evidence of the authority of the substituted trustee or his or her agents to act pursuant to this section.

    According to Evidence Code Section 622, the facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.
    After careful analysis of dozens of Supreme and Appellate court decisions, and from sitting and watching the trial court in action, it dawned on me, that absent certain affirmative defenses and timely objections, homeowner’s are doomed and will find themselves in a no win situation.

    For example, unless as an affirmative defense the defendant homeowner properly alleges that the plaintiff has insufficient evidence to support its claims, the court will on its own motion and or without request from any party, take judicial notice of the foregoing statutory laws. Once that happens, game over.

    What I mean by properly alleging as an affirmative defense that the plaintiff has insufficient evidence to support its claims is as follows.

    AFFIRMATIVE DEFENSE #1

    Insufficient Evidence

    1. Defendant alleges that any exhibits that plaintiff may offer or move to introduce into evidence for identification, are insufficient to support plaintiffs claim that the sale was conducted in compliance with Civil Code Section 2924 et. seq., title was duly perfected and as a result plaintiff has an immediate right of possession.

    2. Defendant alleges that secondary evidence of the content of such exhibits, are inadmissible as hearsay, do not qualify as an exception to the hearsay rule, cannot be received in evidence and the factual matters stated therein, the truthfulness, and proper interpretation thereof, is in dispute, and cannot be judicially noticed by the trial court.

    3. Defendant alleges that at no time did the power of sale conferred upon the trustee under that certain Deed of Trust recorded on [________] in the office of the County Recorder of [________________] County, State of California, as Recorder’s Document Number: [________], vest in [THE FORECLOSING TRUSTEE] nor did pursuant to such power, [THE FORECLOSING TRUSTEE] have the authority to execute a deed.

    4. Defendant alleges that at no time, was there a contractual provision, under such Deed of Trust, or otherwise, wherein the right of possession passed or would pass to the trustee or beneficiary there under nor was [THE FORECLOSING TRUSTEE] defendant’s agent.

    The effect of alleging an affirmative defense as such is that;

    a. Each allegation is easily provable,

    b. it prevents the plaintiff from filing a motion for summary judgment (which they are always willing to do),

    c. it forces the plaintiff to provide foundation in support of each document it requests the court to identify as evidence(which they never do),

    d. it keeps in issue, the authority of the substituted trustee or his or her agents to act, pursuant Cal. Civ. Code Section 2934a(d),

    e. it prevents the trial court from taking judicial notice of the truthfulness of the contents of documents (II) through (VI) (i.e. the recital of compliance pursuant Cal. Civ. Code Section 2924(c),found in most trustee’s deeds upon sale),

    f. it rebuts any presumption that the defendant homeowner is a party to the Trustee’s Deed Upon Sale, and;

    g. it nullifies the effect of the court taking judicial notice of Evidence Code Section 622.

    What’s your assessment?

  2. My title company made an error at closing and now wants me to pay for their error. I thought a closing was a legal document I’m I truly responsible fort the title companies mistake?

  3. Re: Jeff Barnes attorney out of Boca Raton. A REAL NIGHTMARE.
    Please People do your research very very carefully if you are thinking about hiring this guy. He took our families valuable land as a future payment to defend us and then at the last minute he bailed out on us leaving us totally stranded. We had already paid him a fortune to defend us but he lost at every turn. We demanded our families property back and he went absolutely crazy. I had never had that kind of verbal attack against me and my family before, it was terrifying.
    I thought he had lost his mind. He assured me that his friends at the attorney generals office would prosecute me and my family for a Varity of reasons, he told me he would contact our Bankruptcy judge and claim that we were committing bankruptcy fraud. Then he made some really bad comments about my child and that ticked me off really bad. We are elderly and never done anything wrong in our lives so this was scary to my wife and I. But we are not going to let him get away with this and neither should you if he attacked you too.. We have since heard from others who have had the same attack.
    If you are suffering because of the way you were treated by Jeff Barnes please call me at 352 274 8467 and join our complaint to the Florida bar. I want to show the bar that this is not an isolated incident. We want him disbarred and we want our property back.

  4. am trying to help someone find their Pooling and Servicing Agreement. The information is below:

    M ERS #: 100091805003039211 SIS #: 1-888-679-6377
    Date of Assignment: March 6th, 2012
    Assignor: MORTGAGE ELECTRONIC REGISTRAT ION SYSTEMS . INC., AS NOMINEE FOR RESOURCE MORTGAGE BANKING, LIMITED, ITS SUCCESSORS AND ASSIGNS at BOX 2026 FLINT Ml 48501 , 1901 E VOORHEES ST STE C., DANVILLE. IL 61834
    Assignee : US BANK NATIONAL ASSOCIAT ION, AS TRUSTEE FOR ADJUSTABLE RATE MORTGAGE TRUST 2005-2 , ADJUSTAB LE RATE MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-2 al 4801 FREDER ICA STREET, OWENSBORO , KY 42301

    · Executed By: HUSBAND AND WIFE AS TENANTS BY THE ENTIRETY To : MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR RESOURCE MORTGAGE BANKING, LTD., ITS SUCCESSORS AND ASSIGNS
    Date of Mortgage: 12/10/2004 Recorded: 12/20/2004 as Instrument No.: 2004-255773 In the County of Honolulu, State of Hawaii.

    Property Address : 82-6291 MANIN! BEACH ROAD, KEALAKEKUA, HI 96750

    James Smith: jsmith5915@msn.com or 443 677 2799. Thanks

  5. It’s election time again and I was wondering what someone would ask a Sheriff’s Candiate, and see how they would handle these illegal foreclosures, would they just go along with what the judge has ordered or go an extra step further and find out for themselves what is lawfull. It would be huge if we could find a few with the guts to stand up for what is right…

  6. that is a heartless way to treat people that could make a difference in the community surrounding this house and the immediate neighborhood that could benefit.

  7. There is an “Allonge To Note” stamped on the back of my Adjustable Rate Note. Date of Allonge is 4/22/05 and Note date is 5/2/05. I never saw this when I signed papers. Is this significant? I’m fighting foreclosure now.

  8. Neil, I have been watching your blog for the past 2 years or more because it is one of the most interesting but truthful websites on the topic of foreclosures. You keep it real!! I admire your persistence in making an effort to go after the banks/lenders. It’s people like you who are the real winners. If only the homeowners understood the meaning of “persistence” and “perseverance,” there would be a lot more cases out here that could be won.

    But I thank you for your courage and assistance that you provide the millions of homeowners that face foreclosure and this wonderful blog.

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  11. DISABLED RESIDENTS FACING EVICTION
    Frost Bank Wants To Sell Property

    HOUSTON, TEXAS – Elderly, disabled and terminally ill men at the Ray Hill Transitional Residence face eviction by Frost Bank.

    New Beginnings Houston, a non profit outreach ministry providing housing and other services to homeless individuals, announced today that residents may be evicted from their southwest Houston facility.

    “We have five community homes,” said Joe Donalson, volunteer director of the ministry. “Due to threats of foreclosure and eviction coming from the Houston law office of Wells & Cuellar, we may have to shut down the Residence Three.”

    “I think its big bank greed, pure and simple,” commented Ray Hill, who the facility was named after. Hill, an advocate for civil rights and free speech, was responsible for the 1987 landmark U.S. Supreme Court decision in Houston v. Hill striking down laws prohibiting citizens from verbally opposing police misconduct.

    In 2011, the home in the southwest community of Westbury was the subject of numerous complaints. The owner, afflicted with cancer and AIDS, explained that his declining health had prevented him from doing upkeep. When the city started posting notices and issuing citations, he just walked away, leaving the residence open for vagrants, drug dealers, and rats. After learning the home was facing demolition by the city as a dangerous structure, New Beginnings Houston contacted the owner and obtained a lease agreement. In exchange for repairing and renovating the residence, the ministry would be able to use it as a community home for disabled men.

    “Our volunteers contributed a substantial amount of time and money towards this residence,” Donalson said. “Vagrants had stripped it down, breaking holes in the walls and ceilings to steal fixtures, pipes, and wiring. The value of the materials and labor we put into saving this home exceed $25,000.”

    Although Frost Bank had an old lien on the property, they showed no interest in it until New Beginnings Houston saved it from the bulldozers.

    “The bankers at Frost are greedy,” Donalson commented. “They didn’t care when it was a crack house awaiting demolition. Now that we’ve saved it, and have substantially increased its value, they want to throw disabled residents out on the street and sell it for a profit. That’s not right.”

    On its website, New Beginnings Houston offers a single solution to two major problems plaguing our city – all the homeless people wandering the streets, and all the abandoned derelict homes awaiting demolition.

    “There’s a story behind every abandoned home,” Donalson said. “It could be that someone died with no heirs, or that back taxes or liens on the property are more than the property is worth. Whatever the reason, when a property is abandoned it creates big problems. Scavengers break in, stealing everything of value. Vagrants move in, starting fires to keep warm in the winter. If they don’t end up burning it down, eventually the city comes along and tears it down.”

    “This doesn’t have to happen,” Donalson continued. “Instead of tearing down these structures, with a little time and effort they can be rehabilitated into transitional facilities for the city’s homeless. That is what our outreach is all about. Using donated materials and volunteer labor, we renovate these derelict homes. Afterwards, the homeless men doing the work get live in them while they are helped to defeat substance addiction, eat healthy, find employment, and move on to a productive life.”

    At a March foreclosure hearing, State District Judge Randy Wilson noted that Frost Bank would benefit from the positive publicity that would come from either donating the home to New Beginnings, or offering them a low interest mortgage. Frost, however, wasn’t interested. They continued to pursue foreclosure, and on July 20th obtained a judgment to auction off the property to the highest bidder.

    James Cuellar, a lawyer representing Frost Bank, mailed a certified letter to the home giving its occupants ten days notice to vacate the property.

    “We’re going to fight this,” Donalson said in reference to the notice. “We’re standing on our lease that says our ministry has use of this home.”

    On May 20, 2009, President Obama signed the Protecting Tenants at Foreclosure Act. This law protects tenants from eviction because of a foreclosure on property they occupy.

    “I put a lot of work into saving this place,” said Clifford Clarke, a cancer patient who shares the home with four other residents. “I used my monthly social security check to pay for for repairs and to cover my monthly rental sustenance payments. This is my home, and I intend to be here until I die.”

    Frost Bank, however, is taking the position that lease doesn’t qualify for federal protections. Their attorney has indicated he will sell the house by public auction, and then afterwards ask a Justice of the Peace to order an eviction.

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