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

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Get a Consult!

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.

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

Tonight 6pm Eastern: The Neil Garfield Radio Show-The Trust can’t be Trusted: The US Bank Sham

The JPMorgan Paper Chase Live at 6 pm

The US Bank as Trustee sham-Live at 6 pm Eastern

New evidence demonstrates that US Bank is not a trustee even though it is named as Trustee in some trusts and otherwise “acquired the trust business” from Bank of America and others.

Livinglies founder Neil Garfield, California Attorney Charles Marshall, and Investigator Bill Paatalo discuss the US Bank as Trustee scam:

  • A Trustee without powers or duties is no trustee. Disclaimer of fiduciary duties denotes non acceptance of being the Trustee of the Trust.
    • Acquiring the trust business is a euphemism for the continuation of the musical chair business that is well known in subservicers.
    • Being the trustee is NOT a marketable commodity without amendment to the Trust document. Hence if a Trustee is named and has no power or duties, and which then “sells” its “trust business” to US Bank the “transfer” trust responsibility is void but damnum absque injuria.
  • BOTTOM LINE: A trust without a trustee holding fiduciary duties and actual powers over trust assets is no trust at all. This signals corroboration for what is now well known in the public domain: the REMIC trustee has no powers or duties because there is no trust and there are no trust assets.

 

California attorney Charles Marshall will continue discussing one of his current cases entitled Naguiat v. Nationstar where the Judge ruled that the order was clear that absent a recording of same alleged assignment, the assignment is void:

As a result of same voidness, the following was found:

—- a previously executed loan mod did not legally re-ratify the loan, because the broken assignment at issue occurred after same loan mod–two years afterward in fact–thus voiding all of the foreclosure activity to follow, notwithstanding the previous loan mod;

—- referencing that BofA had previously admitted in a Govt settlement to servicing and loan mod fraud practices–these were part of the reason the Court here considered the previous loan mod void;

—– void status of foreclosure activity resets statute of limitations (SOL) violations alleged by Defendants; Court also accepted Plaintiffs arguments about when Defendants violations were discovered;

—- void status of post-broken-assignment foreclosure docs (NOD, NOTS, etc) nullifies requirement to tender here, as per Yvanova, the subject property was sold at auction.

 

 

Lowlights:

– Implication of ruling is that it would not apply to pre-foreclosure cases (that is, cases where the subject property has not yet been actually sold at auction);

– Court refused to consider illegitimate MERS role in finessing early assignments as creating a broken chain of assignments, typically ratifying same MERS role as if MERS is a party-in-interest, not a staged entity to get around recording statute requirements;

– Court ratifies Saterbak and Yhudai, holding that the late assignment of the subject loan into the original securitized trust only supports a claim that same assignment is voidable, not void.

 

Investigator Bill Paatalo can be reached at:

Office: 406-328-4075

email: bill.bpia@gmail.com

http://bpinvestigativeagency.com

 

California Attorney Charles Marshall:

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.807.2628

The Neil Garfield Show LIVE at 6 PM Eastern with CA Attorney Charles Marshall: Window into the Life-Cycle of a Lawsuit

The JPMorgan Paper Chase Live at 6 pm

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

This episode discusses strategic planning of a lawsuit campaign, which is somewhat similar whether on the Plaintiff or Defendant side with strategic litigation planning, to encompass following elements:

– pre-foreclosure negotiation and settlement demands;

– filing of lawsuit;

– demurrers/mtd;

– discovery;

– motions for summary judgment;

– pre-trial prep and motions;

– trial;

– appeals;

– post appeal judgment options

 

California-licensed attorney Charles T. Marshall (CA Bar # 176091) earned his Juris Doctorate in 1992 from the University of San Diego School of Law. His practice includes Foreclosure Relief, Civil Litigation, Bankruptcy, Immigration, Estate Planning and all facets of Personal Financial Management.

Charles Marshall can be contacted at:

Charles Marshall, Esq.
Law Offices of Charles T. Marshall
415 Laurel St., #405
San Diego, CA 92101
%d bloggers like this: