The West Coast Foreclosure show with Charles Marshall: Bank “Witnesses” don’t know Jack: “Expert” Computer Screen Readers only.

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Investigator Bill Paatalo joins Charles Marshall to discuss bank employee weaknesses and lack of credibility in depositions and affidavits.

Chase bank ‘witnesses’, and bank witnesses in general, know little about the loan in which they are deposed, beyond what the computer screen shows. Under oath, the bank employee will parrot information the bank’s attorney coached them on prior to their deposition. If you are able to drill-down, it becomes obvious that the person ‘with the most knowledge’, knows nothing regarding the travel of the loan, assignments or current holder in due course.

Bank witnesses can provide a balance, the name of the servicer, and who claims to own the note; but know nothing about payment proceeds from insurance/settlements or when the note was endorsed or by who.  The bank employee relies on hearsay and and erroneous information on a screen to foreclose.

Chase employee Rosemary Martin inundated the court with a ream of mortgage documents and statements that had the appearance of validity, but when placed under oath had no information relevant to the Plaintiff’s loan.  See: Objection_to_Notice_of_Errata Rosemary Martin Deposition.

Even former in-house Chase counsel are oblivious in regards to the operations, documentation and validity of documents.  Despite this lack of knowledge, the attorney submitted affidavits and loan verifications, when he knew nothing beyond what he read on a screen.  See:  McCormick Deposition.

The loans are defective, and only the illusion keeps the ownership facade alive.

Investigator Bill Paatalo

Office: (406) 328-4075

bill.bpia@gmail.com

www.bpinvestigativeagency.com

 

Contact Attorney Charles Marshall:

Charles Marshall, Esq.
Law Office of Charles T. Marshall

Not legal advice– for educational purposes only.

JPMorgan Chase and the Fed in Collusion: The National Mortgage Settlement Sham

Six years ago, in February 2012, JPM was fined $5.3 billion under the National Mortgage Settlement reached with Attorney General Eric Holder. It was one of those sweetheart deals that Holder cut over and over with the big banks — by imposing cost-of-doing-business fines, instead of criminal charges, in keeping with his “too big to jail” policy.

However, as financial muckraker David Dayen reports at The Nation, only $1.1 billion of that $5.3 billion total had to be paid in cash; “the other $4.2 billion was to come in the form of financial relief for homeowners in danger of losing their homes to foreclosure.”

Here’s the rest of the story: “JPMorgan moved to forgive the mortgages of tens of thousands of homeowners; the feds, in turn, credited these canceled loans against the penalties due under the 2012 and 2013 settlements. But here’s the rub: In many instances, JPMorgan was forgiving loans it no longer owned… it had sold the mortgages years earlier to 21 third-party investors.”

The dirty details are now coming to light in a federal lawsuit being heard in New York. Grab the popcorn…

See: http://www.esquire.com/news-politics/politics/a12787808/jp-morgan-mortgage-scam/

Regards,
Neil F Garfield

NJ APPELLATE COURT GETS TO THE ROOT OF MERS AS “NOMINEE”

Bank of N.Y. Mellon v. Davis_ 2017 N.J. Superior Court

Key elements in this decision are:

  1. Whether MERS can sign as nominee for an entity that went out of business years before the assignment.
  2. Whether a MERS document was forged or robosigned.
  3. Whether a Power of Attorney actually conveys the rights that the foreclosing party is claiming.
  4. Whether a document can be used without proper foundation — i.e., authentication based upon personal knowledge.
  5. Whether the DiTech or Green Tree names can be used to fill the gaps in the chain
  6. Whether a foreclosing party may simply rely on its allegations in lieu of proof.

 

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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 Michael Bazemore

 

This decision clearly probes the fictitious documents, testimony and methods used to insert parties into an alleged loan contract for the purpose of foreclosure. You can be sure that the position taken in foreclosures is contrary to the position taken to sell mortgage backed securities or the loans themselves.

 

The ONLY thing I find troublesome in this decision is that once again, it is assumed that the “borrower” received a loan from a now defunct entity that was a mere sham conduit for the disbursing of slush funds accumulated by the banks. Whenever THAT finally comes under scrutiny, the entire “chain” will be laid bare. The inescapable conclusion in such cases is that there is no loan contract between the borrower and the originator and every document executed after that could not, as a matter of law, convey anything except the fictitious paper.

 

I have highlighted and annotated the parts of the decision that I think are of importance and helpful to litigators.

 

Tuesday, October 17, 2017 1:05:00 AM EDT

  1. Bank of N.Y. Mellon v. Davis, 2017 N.J. Super. Unpub. LEXIS 2578
    Court: New Jersey

Reporter

2017 N.J. Super. Unpub. LEXIS 2578 *

THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS OF THE CWABS, INC.,  [Editor’s Note: BONY is saying (1) that it is not appearing on its own behalf, (2) that it is appearing in a representative capacity, (3) that it is representing certificate holders (without naming them) and (4) with no reference to an organized trust into which any assets have been entrusted to a trustee).

Without the name of a certificate holder who is represented by BONY my opinion is that there is no Plaintiff. This wording from the lawyers sets forth a “hidden” trust (that also probably doesn’t exist) in which the certificate holders have appointed BONY as trustee for their certificates — which are worthless because the certificates were issued by a nonexistent trust that never received any assets to hold in trust]. ASSET-BACKED CERTIFICATES, SERIES 2007-BC3, Plaintiff-Respondent, v. JEFFREY L. DAVIS, MRS. JEFFREY L. DAVIS, his wife, ELISSA M. DAVIS, MRS. DAVIS, husband of ELISSA M. DAVIS, Defendants- Appellants, and STATE OF NEW JERSEY, UNITED STATES OF AMERICA, Defendants.

PER CURIAM

Defendants Jeffrey L. Davis and Elissa M. Davis appeal from the April 29, 2016 Chancery Division order granting summary judgment in favor of plaintiff on its foreclosure complaint, and striking defendants’ answer and counterclaim.[1] Defendants seek reversal, citing multiple genuine issues of material fact. Following our review of the record, we vacate and remand.

 

Opinion

[*1] APPELLATE DIVISION
On March 26, 2007, defendants borrowed $347,000 from Decision One Mortgage Company, LLC (Decision One) [Editor’s Note: As stated above, the assumption that Decision One actually loaned money rather than having been paid a fee to rent its name as “originator” is most probably an incorrect assumption. This leads to the conclusion that the “loan contract” does not exist between ANY of the parties in the chain and the borrower. This is not to say a loan contract or constructive loan contract doles not exist. It clearly does exist between the borrower and the actual creditor(s) who made the loan — whether they knew they were making the loan or not].   to refinance their home in Mount Laurel, secured by a note and non-purchase money mortgage.[2] On April 1, 2010, defendants defaulted on the loan.

 

On November 9, 2011, MERS assigned the mortgage to plaintiff, and on November 30, 2011, the Burlington County Clerk recorded the assignment.[3]On February 23, 2015, plaintiff mailed defendants a notice of intent to foreclose. After defendants failed to cure the default, plaintiff filed its foreclosure complaint on August 7, 2015.

On September 21, 2015, defendants filed [*2] an answer, which included thirty-six affirmative defenses and a six-count counterclaim. On October 26, 2015, plaintiff filed its answer to defendants’

 

We apply the same standard as the trial court when reviewing the disposition of a motion for summary judgment.

On March 24, 2016, plaintiff moved for summary judgment. In support of its motion, plaintiff filed a certification signed by

Rebecca Anderson (the Anderson Certification) of Ditech Financial LLC f/k/a Green Tree Servicing LLC (DiTech). In her capacity as a “Document Execution Specialist” for Ditech, Anderson described Ditech as “attorney[-]in[-]fact for” plaintiff and certified she has “complete access and authorization to review [plaintiff’s] business records, including computer records, logs, loan account and related business records for and relating to the borrower’s loan.”

 

Of note, the Anderson Certification provided no details regarding the power of attorney document that authorized Ditech to act as attorney-in-fact for plaintiff nor did plaintiff otherwise provide a copy of the document with its motion papers.

Defendants opposed plaintiff’s motion on various grounds, including the sufficiency of the Anderson Certification. Defendants also challenged the validity of the assignment of mortgage and note since plaintiff’s [*3] predecessor in interest, Decision One, went out of business in 2007, four years prior to the assignment.

Following oral argument, the motion judge rejected defendants’ arguments, granting summary judgment in plaintiff’s favor and striking defendants’ answer and counterclaim. In a written opinion, the judge found plaintiff established the material facts demonstrating its right to foreclose, namely: (1) the Anderson Certification sufficiently established plaintiff possessed the note prior to filing the foreclosure complaint; (2) plaintiff properly served defendants a notice of intent to foreclose; (3) and defendants defaulted under the note and mortgage’s terms. The judge also held defendants’ “affirmative defenses . . . are nothing more than conclusory arguments devoid of any factual support or reference.”

judgment. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). Summary judgment must be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled [*4] to a judgment or order as a matter of law.” R. 4:46-2(c). Without making credibility determinations, the court considers the evidence “in the light most favorable to the non-moving party” and determines whether it would be “sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

In satisfying its burden, the non-moving party may not rest upon mere allegations or denials in its pleading, but must produce sufficient evidence to reasonably support a verdict in its favor. R. 4:46- 5(a); Triffin v. Am. Int’l Grp., Inc., 372 N.J. Super. 517, 523 (App. Div. 2004). It is against these standards that we evaluate defendants’ substantive arguments.

 

On appeal, defendants argue the motion record fails to establish plaintiff’s standing to foreclose, alleging deficiencies in the Anderson Certification. Specifically, they emphasize that plaintiff failed to provide basic information, such as the note’s physical location, as well as who transferred the physical loan documents, and the date of transfer. Defendants further argue plaintiff failed to establish authorization for the issuance of the Anderson Certification because it failed to provide any confirming evidence ofDiTech’s authority to serve as is its attorney-in-fact.

 

Plaintiff [*5] counters that Anderson had sufficient personal knowledge to satisfy Rule 1:6-6 because she reviewed defendants’ loan file, which contained business records maintained during the ordinary course of business, citing Wells Fargo Bank v. Ford, 418 N.J. Super. 592, 600 (App. Div. 2011)

Page 2 of 4

andN.J.R.E. 803(c)(6). Furthermore, plaintiff states Anderson certified that plaintiff acquired the note and mortgage in November 2011, prior to its filing the foreclosure complaint, and because an endorsement in blank permits the note to be transferred and negotiated by delivery alone to a bearer, Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 336 (Ch. Div. 2010), it demonstrated it was the holder of the note and mortgage. In the alternative, plaintiff argues it also satisfies the requirements of a “non-holder in possession with the rights of a holder.” SeeN.J.S.A. 12A:3-203(b).

 

In order to have standing to foreclose a mortgage, a party “must own or control the underlying debt.” Raftogianis, supra, 418 N.J. Super.at 327-28. [Editor’s Note: This key factor is usually completely overlooked as the banks, through misdirection, maintain focus on the paper instrument and not the underlying debt. The importance of this error cannot be overstated.

If the Payee on a note does not own the underlying debt (because it never paid for the loan) then it is an inescapable conclusion that the debt is NOT merged into the note.

As such the note and mortgage become floating instrument without foundation; but it is possible for a holder in due course to claim its status by virtue of purchase of the note and mortgage instruments for value (a requirement in Article 9, UCC) in good faith and without knowledge of the maker’s defenses.

ONLY a holder in due course can escape the defense of failure of consideration thus no consummation of contract.]

 

To establish such ownership or control, plaintiff must present properly authenticated evidence that it is the holder of the note or a non-holder in possession with rights of the holder under N.J.S.A. 12A:3-301. Wells Fargo Bank,supra, 418N.J. Super.at 597-99. Transfer of possession must be “authenticated by an affidavit or certification based on personal knowledge.” Id. at 600; [*6] see alsoR. 1:6-6.

 

Following our review of the motion record, we conclude plaintiff failed to establish, as a matter of law, that it acquired ownership or control of the note to maintain the foreclosure action. Most notably, plaintiff failed to produce a power of attorney document evidencing its legal relationship with DiTech. See N.J.S.A. 46:2B-8.9 (“A power of attorney must be in writing, duly signed and acknowledged in the manner set forth in [N.J.S.A.] 46:14-2.1.”). Furthermore, the Anderson Certification failed to identify the note’s physical location or state details concerning the note’s physical delivery. See e.g.,Raftogianis, supra, 418 N.J. Super.at 330-32 (describing how, in the absence of proof that one is a note holder, a transferee could still “have the right to enforce the note” through physical delivery).[4] [Editor’s Note: If they can’t describe the physical location of the note (and the chain of custody?) they obviously cannot claim possession or delivery.]

 

Moreover, plaintiff failed to properly authenticate the documents it relied upon to establish its status as a holder. A certification will support the grant of

summary judgment only if the material facts alleged therein are based, as required by Rule 1:6-6, on “personal knowledge.”SeeClaypotch v. Heller, Inc., 360 N.J. Super. 472, 489 (App. Div. 2003). Anderson’s certification does not allege she has personal knowledge that plaintiff is the holder and owner of the note, and has possessed the original note [*7] and mortgage since April 23, 2014. Instead, the basis of her certification is “my personal review of the [p]laintiff’s relevant business records,” without identifying those records or how she acquired knowledge of plaintiff’s record- keeping practices.

 

The certification also does not indicate the source of Anderson’s alleged knowledge that “all of the documents included” in plaintiff’s summary judgment motion are “true and correct copies,” except to generally reference “my personal review of the business records.”

 

Like Wells Fargo Bank, here “the purported assignment of the mortgage, which an assignee must produce to maintain a foreclosure action, see N.J.S.A. 46:9-9, was not authenticated in any manner;” rather, it was attached to plaintiff’s motion. The trial court should not have considered this document unless it was authenticated by an affidavit or certification based on personal knowledge. SeeCelino v. Gen. Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986). As noted, the assignment was not made by Decision One, as payee of the promissory notes secured by the mortgage, but rather by MERS, “as nominee for Decision One.” Although the mortgage appointed MERS as plaintiff’s nominee, the record contains evidence that Decision One ceased operating in [*8] 2007, long before the purported assignment of defendant’s mortgage on November 9, 2011.

 

Therefore, we question whether Decision One’s designation of MERS as its nominee remained in effect after it ceased operations. On remand, the trial court should address the question of whether MERS remained the nominee of Decision One or its successor as of the date of its purported assignment of defendant’s note and mortgage to plaintiff.

Because plaintiff did not establish its standing to

Page 3 of 4

pursue this foreclosure action by competent evidence, we vacate the order granting summary judgment to plaintiff and remand the case to the trial court. On remand, defendants may conduct appropriate discovery, including taking the deposition of Anderson and Dominique Johnson, the person who purported to assign the mortgage to plaintiff on behalf of MERS.

 

Accordingly, we vacate the summary judgment entered in favor of plaintiff and remand to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.

[1] Defendants also appeal from the final judgment entered on September 26, 2016; however, our reversal of the grant of summary judgment makes it unnecessary to address [*9] defendants’ challenge to the final judgment.

[2] The mortgage named Mortgage Electronic Registration Systems, Inc. (MERS) as the nominee for Decision One, its successors and assigns.

[3] The record lacks documentation evidencing the assignment’s recording.

[4] Because Decision One, as the payee of defendant’s note, was a holder, and it allegedly transferred the note to plaintiff without an indorsement, plaintiff may have acquired the status of a nonholder in possession of the note with the status of a holder. SeeWells Fargo Bank, supra, 418 N.J. Super.at 599 (citing 6B Anderson on the Uniform Commercial Code §§ 3-203:4R, 5R, 9R, 10R, 11R (Lawrence ed., 3d ed. 2003)).

 

MERS Unraveling

“Aside from the inappropriate reliance upon the statutory definition of “mortgagee,” MERS’s position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best. — Judge Grossman, Federal Bankruptpcy Court

The Court recognizes that an adverse ruling regarding MERS’s authority to assign mortgages or act on behalf of its member/lenders could have a significant impact on MERS and upon the lenders, which do business with MERS throughout the United States.

However, the Court must resolve the instant matter by applying the laws as they exist today. It is up to the legislative branch, if it chooses, to amend the current statutes to confer upon MERS the requisite authority to assign mortgages under its current business practices.

MERS and its partners made the decision to create and operate under a business model that was designed in large part to avoid the requirements of the traditional mortgage recording process. This Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law.

Get a LendingLies Consult and a LendingLies Chain of Title Analysis! 202-838-6345 or info@lendinglies.com.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

See In re: Ferrel L. Agard, Debtor, Chapter 7, United States Bankruptcy Court, Eastern District of New York, The Honorable Robert E. Grossman.

NOTE: Emergency bells when off when Grossman rendered his decision.  Grossman’s decision was subsequently overturned by the Federal District Court Judge. But the logic expressed in Judge Grossman’s reasoning cannot be assailed. And it has been followed in numerous instances — in and out of court like where MERS has been banned from the Courtrooms in certain states.

The fundamental thing to know about MERS is that it is merely a step in the process of fabricating, forging and robo-signing documents. In substance it is the same thing as ANYONE simply creating a document that creates the illusion of ownership or control.

MERS helps in creating the illusion that the process was legal and proper and perhaps even official. But the reality is that the use of MERS is just a layering strategy to cover up what is really happening. MERS is a curtain to assure that neither the investors nor the borrowers ever truly know what is happening. It is a vehicle for what has become the largest economic crime in human history.

The Wall Street business model for multiple sales of the same loans, derivative products sold as hedges or minibonds, is completely dependent upon the ability of the Banks to insert themselves into a loan transaction by separating the actual lender(s) and borrowers so far that neither one knows about the other.

The Banks step into the void they created and claim ownership of all the money advanced by investors, all the mortgage backed securities ever “issued” and all of the notes and mortgages that were signed by homeowners.

A crucial component of this business strategy is the ability to create the illusion of ownership in both primary market lending and secondary markets where loans and securities are bought and sold.  It all falls apart if each (or some) transfer of the loan is faked. In order for the banks to have succeeded in their strategies they needed to convince everyone that they were, in fact, the only parties authorized to do business in connection with the existence of any loan.

The vehicle for creating this illusion is an intermediary who is presented as an alternative to the county records where deed and mortgages are filed. As a former president stated, “if you tell a lie that is big enough it will be accepted as truth and the truth will be accepted as false.”

The primary vehicle was MERS. (Chase used another similar vehicle that only Chase controlled). MERS is a real live corporation whose ownership is complex — involving the largest players on planet Earth. It consists of a handful of people who maintain an IT platform that is a cross between a database for identifying members and a chat room for conspiracy.

People with no affiliation with MERS enter the IT platform with a login and password. Once inside they appoint themselves as officials of MERS and then execute documetns on behalf of MERS. Transfers are sometimes logged into the database and sometimes they are not. But when it comes time that a MERS member would like to assume control of an alleged loan and foreclose on it, an entry is made showing that member as the latest transferee of the mortgage, thus giving the appearance of a party entitled to enforce.

The problem, identified by Judge Grossman, is that MERS, although self described in the mortgage as “mortgagee” and as “nominee” for the mortgagee is that this is doublespeak.  In fact, it is neither an agent for the actual lender whose existence is withheld and hidden, nor is it the lender, and hence MERS does not qualify as a mortgagee under statutory definitions.

This is no technicality. Because MERS expressly disclaims any right, title or interest in the money, the debt , the note and the mortgage. It is directly expressed on the MERS websites, the MERS agreements and anything else you can run across where an official MERS notice or statement appears. And there is a reason for this. The Banks made sure that (1) they were in complete control of MERS and (2) there had to be no doubt that if MERS ended up in litigation or someone declared bankruptcy, there would be nothing in the bankruptcy estate in which MERS owned any asset or possessed any right to enforce a mortgage. The banks wanted that all for themselves.

The Banks made sure that (1) they were in complete control of MERS and (2) there had to be no doubt that if MERS ended up in litigation or someone declared bankruptcy, there would be nothing in the bankruptcy estate in which MERS owned any asset or possessed any right to enforce a mortgage. The banks wanted that all for themselves.

Outside the Wall Street bubble, this strategy came under fire and was actually banned in some states. MERS was personna non grata. The basic element to the MERS strategy is that documents could be fabricated and robo-signed to create the appearance of an assignment of a mortgage. THAT could only be true if MERS was either (a) the mortgagee or (b) the agent for a mortgagee. It has never been either one. And the transfers made the original entries in the MERS IT platform increasingly remote from the real world.

In the real world neither MERS nor the “lender” identified on the mortgage deed owned the debt , note or mortgage. So MERS could not very well execute any paper that conveyed a greater interest than what it possessed, which was nothing.

Thus in all cases involving a “MERS mortgage” the party seeking to enforce the mortgage instrument should be required to prove their interest with actual evidence of a purchase and sale and not just a paper instrument that essentially says “Trust me, I’m a bank.” In theory it shouldn’t be hard to come up with that evidence. But in reality, outside the Wall Street bubble, it is crystal clear that there were no purchases, there were no sales of the debt,

But in reality, outside the Wall Street bubble, it is crystal clear that there were no purchases, there were no sales of the debt, note and mortgage because the “origination”, “aggregation,” or “acquisition” of the loan was long ago funded not by the parties stated on the note and mortgage but by the investors who were barred from knowing how their money was being used. And the borrowers, in most cases were signing notes and mortgages in favor of companies that had not made any loan to them. And that is the real derivation of a “free house.” Except that it applies to the banks and not the homeowners.

The moral of the story is that neither borrowers nor their lawyers should realize and know that words scribbled on paper are hearsay and do not necessarily reflect the truth of the matter asserted. And those words certainly don’t mean that any of the presumptions that you would ordinarily make about the instrument are true and correct.

The importance of this revelation is simple. By inserting themselves, MERS, LPS, and servicers into the grey cloud of mortgages and foreclosures, the banks have interfered with the relationship that arose when the borrowers received money from the investors through multiple conduits that neither the investors nor the borrowers knew existed. The borrowers have always maintained that they wanted to do a workout with the real creditors, but they are prevented from doing so because the identity of the investors continues to be hidden.

But for the interference from the banks and the fraudulent business plan they pursued in creating completely fake loan accounts, the number of foreclosures would have been a tiny fraction of what has occurred in real life with real lies. It is continuing. And decisions like this one are breaking the ice allowing homeowners a chance to successfully confront the fraudulent foreclosure practices.

And as for the free house, most homeowners only want to work out the terms of a real note and a real mortgage and pay back the money that the investor would otherwise lose if that portion of the loan that has not already been paid as “settlement” when the investors discovered what had been done with their money.

 

California Foreclosure Process Overview

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By Patricia Rodriguez, Attorney

The process of foreclosure defense begins with pre-litigation (gathering all of the necessary information); once that is accomplished then Litigation of Real Property Ownership/Title in California can occur. First you must file the complaint. Questions to pose are when to file, what to write, what to file, and how to file. You want to file asap so that you do not miss any statute of limitations.

It is recommended that you use a checklist of possible causes of actions. Compare your facts to the checklist and build your complaint from there. You must include with your filed complaint, a summons, civil case cover sheet, attachments, complaint, complaint verification page, and the complaint exhibits. You will want to determine if you should file in Federal or State Court. You will also want to determine which court, based on jurisdictional issues.

Once a complaint is filed you can seek a temporary restraining order and a preliminary injunction to stop a sale of the property. The court may require you to put  upa bond to be granted such an order. Temporary restraining orders are temporary until an order to show cause hearing can be had on the matter. The court will look to see if there has been proper notice, exigent circumstances exist, and if Plaintiff has a likelihood of succeeding on the merits of the case.  The court will not look favorably on a party that waits until the last minute to seek such an order and may conclude any exigent circumstances that exist, are due to Plaintiff’s failure to bring the request sooner and deny it on that basis alone.

Once the case is filed, an analysis should be done to determine whether or not to record a Lis Pendens which is a two-page document which attaches the lawsuit over the title to the property; thus, when it’s sold at a trustee sale date, no one but the bank will buy the lawsuit –and the bank must buy it back. There can not be a bona-fide purchaser because everyone is on record of the notice of the lawsuit. The lis pendens should only be recorded if there are real property issues and if there is a likelihood of success on the merits. The defendants will likely file a motion to expunge the lis pendens and if its not voluntarily withdrawn the court may award attorneys fees and costs to the defendants who had to bring the motion to expunge. In order for the motion to expunge to be granted but attorneys fees and costs to be denied the Plaintiff must show that it had substantial justification in recording and maintaining the lis pendens.

To contact Patricia Rodriguez (if located in California), please call 626-888-5206.

The Rodriguez Law Firm: http://www.attorneyprod.com/

For a free consultation, fill out the contact form: http://www.attorneyprod.com/contact.html

This article is not legal advice, but for educational purposes only.

The Neil Garfield Radio Show LIVE at 6pm Eastern: Fighting the Trusts in Discovery with Patricia Rodriguez

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FIGHTING THE TRUSTS IN DISCOVERY

Title is often changed for the sole purpose of overcoming a disputed forced sale conducted under a nonjudicial state’s foreclosure statutes.   A homeowner, fighting a wrongful foreclosure, should make a request for production  regarding the details of the sale upon which the bank relies on in its filing of the instant action and it’s “response” to the homeowner’s (defendants) inquiry.  The ‘lender’, or servicer, will typically contend that the homeowner’s requests are beyond the scope of discovery, especially in a nonjudicial action.
The homeowner can file a motion to compel the production of documents upon which the Plaintiff relies on to assert that its forced sale was valid, proper, and legal.  A lender will typically reference a Power of Attorney as its authority to bring the action and as proof that the sale was valid, –i.e., that it was conducted by a duly authorized substitute trustee, appointed by a beneficiary, that meets the definition of a beneficiary under the mortgage or deed of trust.
The validity of the referenced power of attorney and its reality of its existence are crucial for the alleged ‘lender’ to even bring the instant non-judicial action and respond, as a party, to discovery. If it does not exist or is not a current source of power granted by the creditor, then the bank’s reliance upon it is misplaced. However, the lender typically refuses to produce it for inspection.
A homeowner may then file a request to produce that which is asked for, inter alia, (1) the power of attorney, and (2) the alleged trust instrument that might be evidence of the existence or nonexistence of the trust for which the Lender/Trustee claims to be acting.   If there is no completed trust instrument for an existing entity that had been funded, then there is no trust, and therefore, there can be no trustee or servicer deriving their “powers” from a trust that does not exist.
The servicer or plaintiff will typically refuse to produce the Power of Attorney claiming that the homeowner/defendant is not entitled to such documents.  In its response, the servicer’s strategy is to rely entirely upon “legal presumptions” that it asserts arise by virtue of the existence of a forced sale in the property records. This avoids the issue of whether the forced sale was void, voidable or conducted under presumptions of fact that are in conflict with actual fact.
The servicer’s position is that because the sale occurred, the homeowner/defendant has no right to inquire about any information that might lead to the discovery of admissible evidence that the sale was or could be declared void or subject to being vacated.
This is circular reasoning and contrary to due process. If the sale was conducted in favor of a party who claimed to be a beneficiary, but was not a beneficiary under the deed of trust, then the appointment of the substitute trustee was void, as was the notice of default and the notice of sale, thus leading to the clear conclusion that the sale was void or subject to being vacated. Without the validity of the forced sale, no action for unlawful detainer arises.
This article is not legal advice, but for discussion purposes only.
Patricia Rodriguez, Attorney
If you need immediate assistance and are located in California, please call 626-888-5206.
To receive a free consultation, please fill out the contact form here.

The Rodriguez Law Firm is Located at:
1492 West Colorado Boulevard Suite 120
Pasadena, CA 91105

Katherine Ann Porter, Author of 2007 Study Revealing the Destruction of Notes, Is Running for Congress

Ms. Porter was the first person who broke through the ruse of securitization and confirmed what I thought, in 2007, leading to the creation of this blog. As a Professor at the University of Iowa she conducted a study that revealed that, at a minimum, 40% of all executed notes were destroyed shortly after the “closing” of a home loan. Negotiable notes are the equivalent of cash. I was left with the question “why would anyone shred money?”

Now in California, this former protege of Elizabeth Warren is running for Congress. I think she deserves all the support she can get. She is one of the few people running for public office who understands the mortgage meltdown and who will keep fire to the feet of fellow legislators as the country continues to sort out fraudulent loans, fraudulent “meltdowns,” and fraudulent foreclosures.

Ten years ago, when I was a lone voice in the wilderness, she was there to help. Now it is our turn to support her candidacy. Her election to the House of Representatives will benefit all Americans — not just those in her district.

The Intercept (by David Dayen): An enemy of the Wall Street foreclosure machine is foreclosure machine is running to unseat a GOP lawmaker in California

New York Times (by Gretchen Morgensen):  http://www.nytimes.com/2007/11/06/business/06mortgage.html?mcubz=1

Original study: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1027961

Washington Post: Emily’s List backs Elizabeth Warren acolyte in California congressional race

SacBee: Elizabeth Warren protégé runs for Congress in Orange County: ‘Katie is a fighter!’

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