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

Attorney Patricia Rodriguez: California Foreclosure Overview

Attorney Patricia Rodriguez has been defending homeowners from wrongful foreclosure for over a decade.  Located in Los Angeles, California, Ms. Rodriguez has been appointed to serve as a legal expert and provider of expert testimony on unlawful detainers and foreclosures in Los Angeles Superior Court.  She has been on the foreclosure forefront since the housing market crashed, and recognizes the legal strategies most-likely to gain traction, while avoiding arguments that have been proven ineffective.
Ms. Rodriguez provided the following overview of California foreclosure law.  Click here to contact the Rodriguez Law firm, or set up a free consultation.
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California Foreclosure Law Overview

By Attorney Patricia Rodriquez

 

The Process of Non-Judicial Foreclosure In California begins with the Notice of Default (NOD): The Bank is giving the Homeowner notice that according to the Bank Homeowner owes the bank and hasn’t paid. This can be recorded after 90 days straight of non payment.
The Notice of Trustee Sale (NoTS): This is notice to the Homeowner that the bank is electing to sale the property under the allege authority of the Deed of Trust using the power of sale clause. This can be recorded 90 days after the NOD. The bank must set the sale out at least 21 days from the date of the NofTS.
The Trustee Sale Date: This is the actual date of the sale. The Trustee’s Deed Upon Sale is what is recorded after the sale is conducted. It can be sold to a third party or revert back to the alleged beneficiary (who claims the right to sell it under the Deed of Trust power of sale clause).
Delaying Trustee Sale Dates can be done through filing a bankruptcy (although it is not appropriate if this is the sole purpose of the bankruptcy and not restructuring or liquidating the debt)., litigation and recording a lis pendens, a restraining order, and informal negotiations with the bank directly.
Advertisements of Trustee Sale Delays – lots of companies advertise through the mail they can postpone sales. Be cautious as these can be companies that will deed of a percentage of your deed of trust to others and then file bankruptcy for that other individual(s) and then include your property in that bankruptcy. This is bankruptcy fraud and can cause you significant harm ultimately.

THE TRANSFERRING OF SERVICING RIGHTS TO AVOID REVIEWING COMPLETE MODIFICATION APPLICATION

 

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To listen to Patricia Rodriguez discuss the latest foreclosure defense issues please visit the Neil Garfield Show here and here.

By Patricia Rodriguez, Esq.

Nothing in this article is meant to be construed as legal advice; there is no attorney-client relationship that is being created. This is for general education purposes only. 

After years of litigating against alleged lenders, investors, servicers, and foreclosure trustee’s we are starting to see a clear trend of the servicing rights being transferred upon receiving a complete loan modification application. What is an alleged lender – this is usually the party that claims to have funded the original loan or the originator.

The alleged investors are those who claim to have received an ownership interest in the loan through an assignment and endorsements or multiple assignments and endorsements. The foreclosure trustee in non-judicial foreclosure states such as California are entrusted with overseeing the foreclosure process. The servicers are entities that claim a right to collect payments, modify the loan, etc. as agents of the principals (lender or investor). The servicer’s, through an agreement with these other entities, claim to have the right to enforce the note on behalf of the principal (lender or investor).

The servicer can start as one entity in the Deed of Trust and be changed by a simple letter from the original servicer to the borrower advising them that there is a new servicer. The borrower typically has agreed to such in the Deed of Trust. It is generally this servicer that the borrower or the borrower’s representative is negotiating with in order to conduct a short sale, short pay, cash for keys settlement, reinstatement, forbearance, and/or modification. The servicer could stay the same the life of the loan or switch anywhere from 1 to 10 times.

Each time the servicer changes the new servicer is obligated to credit the borrower’s account with all prior payments, honor any pending offers (for a short sale, short pay, settlement, reinstatement, forbearance, and/or modification), and continue to review any pending complete applications for a short sale, short pay, etc. However, many times this is why servicer changes are made so that the new servicer can claim they will not honor an offer to short sale, short pay, etc. or to state that the new servicer never received the complete package.

The above scenario will at most times be actionable; meaning this is something that is a cause of action. There is an obligation on the part of the new servicer to honor offers and pending complete applications, otherwise, it is a breach of contract- among other claims. In addition, to there being an obligation on the part of the servicer to honor offers and pending complete applications, the homeowner needs to make sure that the servicer’s failure to do such caused you or the party you are representing harm (damages).

MAKING HOMES AFFORDABLE – HAMP & HARP ARE GONE

Making homes affordable is an official program of the United States Department of Treasury and the United States Department of Housing and Urban Development.  HAMP and HARP were government funded programs in existence until December 31, 2016. As of December 31, 2016, the programs no longer exist as there was a sunset statute. These two programs were designed to help struggling borrower’s who could no longer afford their mortgages to modify their loan under specific government guidelines. Now that these government programs have ended that does not mean modifications will end.

“As far as the consumer financial protection bureau (CFPB) and Mark Mc Ardle, deputy secretary for the Office of Financial Stability is concerned ‘the economy is still not back on track and may take much more time while many homeowners are struggling, they still are having a difficult time making  their mortgage payments. The CFPB has issued non-binding guidelines based on proven principles and protocols. Based on NPV (net present value); with this foundation the CFPB has stated principle goals for financial institutions to follow when dealing with at- risk homeowners including affordability, accessibility, sustainability and transparency.  The overall goal is to prevent “avoidable foreclosures” and offer a win-win situation for investors and homeowners.'” David Smith

There are still government sponsored programs to help struggling homeowners such as the hardest hit funds that reaches eighteen states. It is Keeping Your Home California for the state of California and offers funds to help with a portion of the arrears for reinstatement or modification. Additionally, the Making Homes Affordable website still has a vast amount of information contained on it; especially, if you are already in a HAMP trial or permanent modification.

Contact Attorney Patricia Rodriguez:

Patricia Rodriguez, Esq.

Lead Attorney/Chief Executive Officer

http://attorneyprod.com

Rodriguez Law Group, Inc.

 

1492 West Colorado Boulevard Suite 120

Pasadena, CA 91105

phone: (626) 888-5206

fax: (626) 282-0522

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