The following is general legal information only and is not to be construed as legal advice or a substitute for legal advice. These are a few things to look at when investigating whether or not you have a defense to foreclosure.
Steve Vondran, Esq. is an attorney practicing Real Estate, Bankruptcy and Foreclosure Defense in Phoenix, Arizona and California. He can be reached at (877) 276-5084 or emailed at Steve@VondranLaw.com
POTENTIAL STRATEGIES TO SEEK AN INJUNCTION AGAINST FORECLOSURE IN PHOENIX, SCOTTSDALE, AND SURROUNDING AREAS IN ARIZONA.
(1) Tort of Wrongful Foreclosure: For example, one way to try to seek an injunction to stop a foreclosure sale would be to argue that you received a loan modification or loan workout, and performed the agreement and thus, cured the breach. See the case of Herring v. Countrywide Home Loans, 2007 WL 2051394 (D. Ariz. 2007). This is a foreclosure defense grounds that definitely needs to be explored with the explosion of loan modifications in Phoenix, Arizona and elsewhere. Under the Obama Making Home Affordable program (HAMP), and under some FHA HAMP modification programs, the lenders and loan servicers are giving out “three month trial plan” offers.
These agreements typically state that the borrower does, or may, qualify for a loan modification. The borrower, induced into believing they qualify for a loan modification, typically makes the three payments, and may also submit financial documentation to be reviewed. In at least some of these trial plan modification agreements we have reviewed, the lender promises that if the three trial plan payments are made on time, and if the borrower’s financial condition (and some other “material representations” made by the borrower) do not change by the time the third payment is made, then the lender, in some of these agreements, agrees to provide the final and permanent loan modification which is supposed to be in line with the the trial plan payment was. What we are seeing is lenders and loan servicers not honoring what appears to be a valid agreement, and instead either denying the modification, and in some cases, selling the house from underneath the borrower. If you feel duped by a trial plan offer that was not honored, check out our website at www.TrialPlanFraud.com
The court may reach the conclusion that the lender / beneficiary is not exercising the power of sale in good faith in violation of its statutory duty.
(2) Failure to Comply with Arizona Foreclosure Statutes:
Hi again, we have posted information on previous blogs about tenants rights following eviction. Here is an overview of what we are looking at. The following is general legal information only and is not legal advice, or to be construed as legal advice. For specific questions please contact a real estate or foreclosure defense Attorney. Steve Vondran, Esq. practices law in the areas of Real Estate, Bankruptcy, and Foreclosure Defense. He assists homeowners in California and Arizona where he is licensed to practice law. He also holds a real estate broker’s license in both states. He can be emailed at Steve@VondranLaw.com or called at (877) 276-5084.
(1) IF YOU HAVE A FANNIE MAE LOAN THAT IS BEING THREATENED WITH FORECLOSED, FANNIE MAE, THROUGH THE LOAN SERVICER, MAY ACCEPT A DEED IN LIEU OF FORECLOSURE AND ALLOW A “DEED FOR LEASE” PROGRAM THAT ALLOWS UP TO A ONE YEAR LEASE AND POSSIBLE EXTENSIONS TO THE HOMEOWNER.
Here were some of the General Guidelines we discussed:
GENERAL GUIDELINES FOR FANNIE MAE DEED FOR LEASE RENT-BACK PROGRAM:
•(1) The loan must be owned by Fannie Mae (use their website here to see if your Loan is owned by Fannie): http://loanlookup.fanniemae.com/loanlookup/
•(2) Contact your loan servicer and see if you are eligible for the program and eligible to execute a “deed-in-lieu” of foreclosure (this means you sign over the deed to the loan holder in lieu of being foreclosed on). The owner of the loan, through the loan servicer, must agree to accept the deed-in-lieu of foreclosure. This is a requirement of the program. In some cases, you may only qualify for Deed in Lieu if you only have a first mortgage. In other instances, you may qualify if the second mortgagee releases your lien.
•(3) The property must be primary residence / owner occupied (landlord-owner may qualify if tenant uses property as primary residence).
•(4) Borrower must be able to pay market rent for the lease (which is a one year lease and option to extend by term or month-to -month). A property management company will determine market rate.
Fannie Mae Launches “Deed for Lease” Program for Homeowners who do not qualify for loan modifications
The following is general legal information only and is not legal advice, or to be construed as legal advice. For specific questions please contact a real estate or foreclosure defense Attorney. Steve Vondran, Esq. practices law in the areas of Real Estate, Bankruptcy, and Foreclosure Defense. He assists homeowners in California and Arizona where he is licensed to practice law. He also holds a real estate broker’s license in both states. He can be emailed at Steve@VondranLaw.com or called at (877) 276-5084.
Here is a basic outline of the Fannie Mae DEED FOR LEASE program. As you may know, Fannie Mae is a government sponsored entity (partially privately owned corporation) that buys loans from so-called “lenders” and Fannie Mae then securitizes these loans, and the loans are often serviced by a loan servicer on their behalf as “investor” of the loan.
Fannie Mae has launched a new Deed for Lease Program designed to (1) Minimize displacement of families being foreclosed upon, and (2) Prevent neighborhood blight caused by vacant foreclosed homes.
Some initial research indicates as few as 1,200 homeowners may have been assisted by this program, while Fannie Mae has (during the same general period) foreclosed on roughly 57,000 homes. This means, don’t count on the program working, but it is worth investigating. Fannie Mae showcases some of its foreclosed properties on www.HomePath.com
GENERAL GUIDELINES FOR FANNIE MAE DEED FOR LEASE RENT-BACK PROGRAM:
(1) The loan must be owned by Fannie Mae (use their website here to see if your Loan is owned by Fannie): http://loanlookup.fanniemae.com/loanlookup/
(2) Contact your loan servicer and see if you are eligible for the program and eligible to execute a “deed-in-lieu” of foreclosure (this means you sign over the deed to the loan holder in lieu of being foreclosed on). The owner of the loan, through the loan servicer, must agree to accept the deed-in-lieu of foreclosure. This is a requirement of the program. In some cases, you may only qualify for Deed in Lieu if you only have a first mortgage. In other instances, you may qualify if the second mortgagee releases your lien.
(3) The property must be primary residence / owner occupied (landlord-owner may qualify if tenant uses property as primary residence).
(4) Borrower must be able to pay market rent for the lease (which is a one year lease and option to extend by term or month-to –month). A property management company will determine market rate.
DO YOU HAVE AN FHA LOAN THAT NEEDS MODIFICATION? NEW PROGRAM ALLOWS PRINICPAL LOAN BALANCE REDUCTIONS AND FIXED INTEREST RATES.
The following is general information. Steve Vondran practices real estate, bankruptcy and foreclosure defense and can be reached at steve@vondranlaw.com or (877) 276-5084. He helps homeowners in California and Arizona where he is licensed to practice law.
Effective August 15, 2009 HUD announced a new loan modification program that would allow homeowners with an FHA loan, who could not qualify for any other loan modification, to apply for a FHA HAMP program (making home affordable), that may allow borrowers with FHA loans to keep their homes and avoid foreclosure. The general details of this FHA loan modification program are as follow (additional terms and conditions may apply, please contact an Attorney or a HUD Counselor at HUD.gov)
BASIC QUALIFICATION GUIDELINES:
(1) You must be at least 30 days late on your mortgage, but no more than 12 months delinquent. However, you cannot force a delinquency merely by failing to make loan or mortgage payments
(2) Seasoning requirement: the FHA loan must be at least 4 months old
(3) The property must be the primary residence of the borrower, owner-occupied and a single family dwelling 104 units
(4) The borrower must currently be paying more that 31% of their gross monthly income toward their mortgage payment (front-end DTI more than 31% of their gross monthly income)
(5) The maximum back-end ratio (ratio of all expenses against gross monthly income) cannot exceed 55%. So if you make $10,000 gross monthly income, you cannot have more than $5,500 in total debt following the loan modification
(6) Your loan servicer must be FHA approved and participating in the program (note: the fha loan servicer can be incentivized up to $1,250 to provide you with the modification
DETAILS OF THE FHA LOAN MODIFICATION:
(1) The servicer may write down your mortgage to 31% of your gross monthly income (so if you make $10,000 per month, and your current mortgage payment is $4,000, the fha loan servicer can write you down to $3,100 monthly payment – which payment will include TAX, INSURANCE, PRINCIPAL AND INTEREST). What they call “PITI.”
THE LENDERS / LOAN SERVICERS ARE NOT YOUR FRIENDS WHEN IT COMES TO LOAN MODIFICATIONS – HATE TO BREAK THE BAD NEWS TO YOU.
TOP TEN REASONS TO HIRE AN ATTORNEY TO HANDLE YOUR LOAN MODIFICATION IN ARIZONA
(1) First of all, you should know the lenders / loan servicers have a whole team of lawyers working on their side. This means the deck is stacked against you. They would prefer you take them at their word for everything they say rather than to challenge them or assert any rights you may have.
(2) Lenders / Servicers like to play little games (ex. we lost your documents you need to resubmit, you don’t qualify for anything under the Obama program, the trial plan modification did not mean anything, etc.). Attorneys can hold their feet to the fire and document the nonsense they are trying to get you to believe.
(3) Even if you qualify for a loan modification under the Obama program, or some other loan modification program (ex. the FHA or MAP program), there is still no guarantee these guys are going to get it right. Remember, in some cases these lenders will hire people off the street with literally no training or background in loan modifications and very little training. These are the gatekeepers who decide whether or not you get a modification?
(4) For borrowers that are not making any payments, the lenders want you to start making some type of payment. To do this, they will generate a “trial plan modification offer” that they may or may not have any real intent on providing you a permanent modification. Foreclosure defense attorneys can call “nonsense, fraud, bad faith breach of contracts, etc., and can actually review these trial plan agreements that the lender probably does not want you to have review by a foreclosure defense lawyer.
(5) The lender does not want you to send in a qualified written request (QWR) challenging the adjustment of your interest rate, demanding proof of the index used and date of adjustment, and otherwise challenging their late fees, add-on fees, attorney fees, etc. They would rather just have you keep you mouth shut, fall in line, and not have the audacity to challenge their “behind closed doors” billing and servicing practices. This does nothing but create more work for them and demand that they prove to you that they are not cheating you.
(6) The lender / loan servicer does not want you to ask who the holder of the loan obligation is (a federal right every homeowner has). They do not want you to know whom you actually owe your mortgage debt to (i.e. the wall street investor) because this is a big secret since the loan was securitized. They do not want a foreclosure attorney to review their assertions against the chain of title and find potential discrepancies that may call into question the legitimacy and legality of the notice of default, notice of sale, and ultimately the foreclosure sale itself. They would much rather prefer that you were ignorant and left in the dark on these issues for the only important issue to them is “where is the money.”
(7) Lenders and loan servicers (and wall street investors) as assignee of the loan, do not want any foreclosure defense law firm investigating truth in lending (TILA) three year extended rescission rights. That does nothing but create a stink for them and may potentially result in one or all of the parties being forced to write YOU a check. Again, they have lawyers on their side but do not want you represented by a predatory lending lawyer.
(8) The lenders and loan servicers do not want you setting up a case for potential lawsuit or temporary restraining order. They created the rules after all (through their powerful lobbies) and they do not want you holding them to the few rules that they actually have to comply with. They do not want you to identify, assert or stand up for any of your legal rights. In fact, if you asked them, they would tell you the only legal issue involved is THEIR LEGAL RIGHT to demand payments from you.
(9) The Lenders and Loan servicers do not want you to send in Debt Validation Letters challenging their legal right to collect on a debt. Again, causes more paperwork and just may hold them accountable in some instances.
(10) The lenders do not want you to be properly advised as to deficiency judgments, or bankruptcy protections, or foreclosure requirements of a private trustee sale, or tenants rights following eviction. Again, this just creates headaches for them in complying with laws that they truly feel are nothing more than a nuisance and a delay tactic. We strongly disagree.
MORAL OF THE STORY IS THE LENDER IS NOT YOUR FRIEND. YOU HAVE THE LEGAL RIGHT TO RETAIN A FORECLOSURE DEFENSE LAW FIRM OR A LOAN MODIFICATION ATTORNEY TO ASSIST YOU IN ASSURING THAT YOUR LEGAL RIGHTS ARE PROTECTED AND TO MAXIMIZE YOUR POTENTIAL TO GET A MEANINGFUL LOAN MODIFICATION AND TO OTHERWISE HAVE YOUR RIGHTS PROTECTED IN THIS RATHER COMPLEX TRANSACTION YOU ARE DEALING WITH. LET ME ASK YOU THIS, WILL A HUD COUNSELOR OR NON-PROFIT AGENCY DO ANY OF THE ABOVE TASKS ON YOUR BEHALF? ARE THEY LEGALLY PERMITTED TO PROVIDE LEGAL ADVICE? DON’T BE FOOLED BY THE RHETORIC OF THE BANKS AND LENDERS OR THEIR COMMERCIALS THAT PAINT THEM AS FRIENDLY NEIGHBORHOOD LENDERS. IN MY OPINION, THEY DO NOT CARE ABOUT YOU, YOUR HOME, OR YOUR MODIFICATION, BUT ONLY THEIR BOTTOM LINE. IF SOMEONE HAS EVIDENCE TO THE CONTRARY I WOULD LOVE TO SEE IT.
California tenants have rights when residential property is being foreclosed upon. The following two sections apply where a lender, trustee, beneficiary or authorized agent is seeking to foreclose on residential real property in the State of California:
(1) Under California Civil Code Section 2924.8 the following must be posted where the lender knows a tenant is in possession of residential real property subject to eviction
(a) Upon posting a notice of sale pursuant to Section 2924f, a trustee or authorized agent shall also post the following notice, in the manner required for posting the notice of sale on the property to be sold, and a mortgagee, trustee, beneficiary, or authorized agent shall mail, at the same time in an envelope addressed to the “Resident of property subject to foreclosure sale” the following notice in English and the languages described in Section 1632: “Foreclosure process has begun on this property, which may affect your right to continue to live in this property. Twenty days or more after the date of this notice, this property may be sold at foreclosure. If you are renting this property, the new property owner may either give you a new lease or rental agreement or provide you with a 60-day eviction notice. However, other laws may prohibit an eviction in this circumstance or provide you with a longer notice before eviction. You may wish to contact a lawyer or your local legal aid or housing counseling agency to discuss any rights you may have.”
The following provisions also apply:
(b) It shall be an infraction to tear down the notice described in subdivision:
- within 72 hours of posting. Violators shall be subject to a fine of one hundred dollars ($100).
- A state government entity shall make available translations of the notice described in subdivision
- which may be used by a mortgagee, trustee, beneficiary, or authorized agent to satisfy the requirements of this section.
- This section shall only apply to loans secured by residential real property, and if the billing address for the mortgage note is different than the property address.
- This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.
(2) Under California Code of Civil Procedure Section 1161(b) the following provisions apply in regard to foreclosed property wherein a tenant resides in the subject property:
1161b. (a) Notwithstanding Section 1161a, a tenant or subtenant in possession of a rental housing unit at the time the property is sold in foreclosure shall be given 60 days’ written notice to quit pursuant to Section 1162 before the tenant or subtenant may be removed from the property as prescribed in this chapter. (b) This section shall not apply if any party to the note remains in the property as a tenant, subtenant, or occupant. (c) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.
NOTICE: The foregoing information is general legal information only and shall not be relied upon as legal advice, or a substitution for legal advice. If you have specific legal questions about your foreclosure case, or loan modification case you should seek out the advice of a real estate attorney. In addition, the information posted above may not be 100% complete, accurate or up-to-date. The Law Offices of Steve Vondran is licensed to practice law in the state of Arizona and California and only seeks to solicit and serve Clients in these two states. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona. He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084. This is an advertisement and communication pursuant to State Bar Rules. Please do not send us private or confidential information through any of our above-listed websites. Sending us an email does not create an attorney-client relationship (only signing a legal retainer will do this).
FEDERAL TRUTH IN LENDING LAW
The Truth in Lending Act (TILA) is a cornerstone of consumer credit legislation. The Statute is Congress’s effort to guarantee the the accurate and meaningful disclosure of the costs of consumer credit and thereby to enable consumers to make informed choices in the marketplace. See 15 U.S.C. § 1601(a). The Act is designed to protect borrowers who are not on an equal footing with creditors either in bargaining power or with respect to the knowledge of credit terms. In other words, TILA was passed to aid the unsophisticated consumer. See Thomka v. A.Z. Chevrolet, Inc. 619 F.2d 246 (3d Cir. 1980). The Act is also remedial and must be liberally construed in favor of borrowers. See King v. California, 784 F.2d 910 (9th Cir. 1986). Except where Congress has relieved lenders of liability for noncompliance, it is a strict liability statute. Courts should continue to assure that consumers are accorded the full remedies available under the Act for violations found, even if they might seem technical. See Rodash v. AIB Mortgage Co., 16 F.3d 1142, 1145, 1149 (11th Cir. 1994). Although Congress permitted the Federal Reserve Board to issue regulations implementing TILA (Reg Z), and to issue interpretations and official staff commentary that the Courts consider to be persuasive authority, the FRB’s authority is not without limits, and a regulation that conflicts with TILA cannot stand. See Fabricant v. Sears, Roebuck, Clearinghouse No. 54,563 (S.D. Fla. Mar. 5, 2002).
NOTICE OF RIGHT TO CANCEL – DISCLOSURE REQUIREMENTS
A common violation we find (and you can check your loan documents to see if you have such a violation) is that in a refinance transaction each borrower or person with ownership interest in the property did not receive two copies each of the federally required notice of right to cancel. If this is true, and your loan was originated within the statutory three year period (note that arguments for equitable tolling may exist) then this violation, although appearing technical in nature, can trigger an extended three year right to cancel your loan.
The following is general legal information only and should not be relied upon as legal advice or a substitute for legal advice. For specific advice, contact an attorney. Steve Vondran, Esq. is a Real Estate Attorney licensed to practice law in Arizona (serving greater Phoenix) and California (Serving most areas of California). He currently practices foreclosure defense and predatory lending law. He can be emailed with comments at steve@vondranlaw.com
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Introduction: Many of the major lenders have been implementing President Obama’s Making Home Affordable Loan Modification Program (HAMP). The details of the program provide that lenders who believe that California and Arizona homeowners (these are the two states I am licensed to practice law in but the program applies in other states as well) qualify for loan modification programs should provide the homeowner with a three month “trial plan” modification program.
The lenders have been rolling out HAMP and have been sending homeowners these three month trial plan agreements.
For the purposes of this article I will refer to these agreements as “contracts” for the simple reason that they look like contracts (they have terms and conditions like a contract and signature blocks for both parties). The homeowner typically performs as if they are adhering in good faith to the terms of the contract, and the lender is accepting payments on the stated understanding that of the homeowner makes the three required payments set forth in the “contract” that the “lender” (see our produce the note articles) will provide the homeowner the badly needed loan modification that the lender has agreed to give if all payments are made under the trial plan, and assuming no material representations of the homeowner have changed.
Everything sounds groovy so far. The lenders appear to be working out loan modifications and saving neighborhoods from financial disaster, and the bailout money appears to be put to a worthwhile use.
What happens next is interesting, yet disturbing at the same time:
The following is general legal information only and should not be relied upon as legal advice. From the years 2001-2008 most loans originated by so called ìlendersî (who lent none of their own money as can usually be verified by looking at the ìlenderísî financials) were securitized and sold on WALL STREET to investors such as mutual funds, municipal funds, hedge funds, insurance companies and foreign investors.
- When Wall Street stepped into the picture during these years, the underwriting standards for most, if not all originating ìlendersî dropped significantly as the originating ìlenderî was more incentivized to produced as many assignable loans (or better yet, Security instruments) as it could in order to feed the Wall Street money-making machine that financially craved as many as these loans as could be produced.
- The original ìlendersî rarely lent their own money which can be proved by looking at the originating ìlenderísî balance sheet. In fact, the originating ìlenderî had already contracted to sell the loan to a loan aggregator, investment banker or other entity and was to be paid back for the full loan amount plus typically a 2.5% return on the loan originated (i.e. these ìmiddlemenî in the securities transaction were all paid in full and had no interest in the loan and could not be deemed a ìlenderî but rather a conduit in a single securities transaction). Thus, it is clear the ìoriginating lenderî was doing nothing more than using borrower to issue unregulated negotiable securities (certificates of asset backed securities) on behalf of the Wall Street investors who were the true ìlendersî who funded the loan and who are entitled to any payment that may be due on the loan.
- To state it another way, the activities of the originating ìlenderî in creating the negotiable security, along with the coordinated and contracted participation of the middlemen loan aggregators, investment bankers and others, was a SINGLE TRANSACTION that was literally designed to encourage predatory loans to be originated by the ìstraw manî or ìstand-inî originating ìlenderî that resulted in providing and issuing negotiable securities for literally anyone that could fog a mirror. Moreover, the more predatory the loan/security (ex. deceptive teaser rates, obscured negative amortization products, balloon payments, YSP, onerous pre-payment penalties, failure to properly underwrite, bait and switch tactics at the signing table, false assertions of a right to refinance, appraisal fraud, unverified stated income loans, etc.) often the more that was paid – higher yields – to both the originating ìlender,î the securities middlemen, and the ultimate investor-beneficiary.
- What this created was a system wherein literally anyone with a pulse and FICO score over 500, was able to obtain a mortgage loan in the form and issue the negotiable security that would be sold on Wall Street. For the originating ìlender,î knowing that Wall Street would fund the loan through its investors, incentivized the originating ìlenderî to cut corners on proper underwriting and instead produce as many assignable notes as possible without regard to the ramifications.
- The Securitization system was further set up in such a way as to eliminate the risks caused by predatory lending, defaulting loans, and other risks by insuring and cross-collateralizing thousands of loans in a loan pool. In fact, if foreclosure is pursued, we will show that the above referenced loan has in fact been paid-off in full by insurance proceeds, money from various guarantors, by the investors, and/or by the federal government. If the loan has been paid, there is no right to foreclose or threaten foreclosure.
- The promissory notes and deeds of trust were separated making the notes unenforceable. MERS was used to track ownership of loan servicing rights and ownership rights and even pretends, at times, to be the beneficiary of many loans even though they do not collect any loan payments, have no right to collect such, and have no other financial interest other than being paid its ordinary fees for the tracking and registration service. MERS typically fails to record any assignments of the loans in the property County Recorderís office. This was done to avoid the paying of fees, among other reasons.
- At the end of the day, in many cases a predatory loan was originated by the ìoriginating lenderî who was financed by the Wall Street investor in an elaborate unregistered security scheme. The loans were sliced and diced into loan pools, and many different investors are known to be the so-called ìowners of the noteî although no one, (including MERS, the originating ìlenderî, the Mortgage Loan Aggregators, Investment Bankers and the final Wall Street Investors) can produce a copy of the original promissory note that proves ownership of the ìloanî obligation and right to collect payments and ultimately foreclose.
- If there is no note, and/or no properly recorded assignments of such, there can be no enforceable debt obligations. This is not a new principle, but rather embodies age-old principles and requirements of commercial law such as the Uniform Commercial Coded (U.C.C.).
- Failure to provide validation of the debt or proof of ownership of the note/recorded assignments SHOULD MAKE A LENDER, LOAN SERVICER, INVESTOR, AND/OR TRUSTEE THINK TWICE BEFORE attempting, or undertaking any of the following acts ñ WHICH MAY BE WORTH CHALLENGING IN THE PROPER CASE (Note: we believe a proper case normally requires other more firmly established legal rights, such as a federal truth in lending violation raising extended rescission rights, fraud, or some other historically recognized ground for filing a lawsuit, rather than merely asserting a bare ìproduce the noteî defense):
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- No foreclosure should be permitted where the California Foreclosure statutes are not followed. Under California Law (California Civil Code Section 2923-2924 et seq. ñ California Foreclosure Law) the ìbeneficiary or their authorized agentî is required to contact the borrower to assess their financial information and discuss modification options. This statutory section requires, it would seem, the TRUE AND ACTUAL BENEFICIARY (I.E. THE TRUE HOLDER OF THE NOTE) to make contact and certify such contacts with the homeowner/borrower prior to making the required declaration in the Notice of Default. Failure to have the TRUE AND ACTUAL BENEFICIARY, AND/OR THEIR AUTHORIZED AGENT (who shall be required to prove first that they are complying with California Foreclosure law on behalf of the TRUE AND ACTUAL BENEFICIARY) precludes and nullifies any attempted foreclosure, and makes any assertion of such, and filing of the Notice of Default with the California County Recorder, fraudulent.
- No one other than the TRUE AND ACTUAL BENEFICIARY, OR THEIR DULY AUTHORIZED AGENT SHOULD BE ABLE TO ASSERT PROPER STANDING AND PROVE THAT IT IS A REAL PARTY IN INTEREST IN ANY LEGAL PROCEEDING, INCLUDING RESPONDING TO A TEMPORARY RESTRAINING ORDER (TRO); PRELIMINARY INJUNCTION; BANKRUPTCY; OR EVICTION ACTION. As discussed above, without proof of ownership of the note and all required recorded assignments, any attempt to show up and defend any of the above actions (by the ìpretender lendersî and/or their ìagentsî who cannot prove their right to engage in any of the herein referenced activities) will result in attempting to perpetrate a ìfraud on the courtî and might wind up the subject of a motion for sanctions and other proper judicial relief. Moreover, any attorney/trustee attempting to pursue any of the herein referenced actions on behalf of a beneficiary or their agent, who cannot satisfy and prove ownership, would be well advised to consider all of the legal ramifications.
- No one other than the TRUE AND ACTUAL BENEFICIARY, OR THEIR DULY AUTHORIZED AGENT SHOULD BE ABLE TO ASSERT a right to collect Loan payments (including principal and interest), late fees, attorney fees, etc., and may not legally demand or collect such. All funds illegally collected from California Homeowners might be subject to the appointment of a receiver or the imposition of a constructive trust in a lawsuit demanding a full refund along with damages and attorney fees.
The following is California Foreclosure Statute. I have made some comments of a general nature in italics below certain sections. These note are not to be relied on as legal advice, but merely provide food for thought on the “produce the note” strategy that we have been hearing about, and some possible ways to raise these claims in a Court of Law. I recently attended a California State Bar Approved course on the Securitization of Note and the Produce the Note Strategy. My comments present just my own personal opinions and thoughts on the matter. For specific legal advice, especially a pre-requisite before filing any lawsuit, consult a qualified foreclosure defense attorney or predatory lending lawyer to discuss. The comments below may not be accurate, valid, or complete.
CIVIL CODE
SECTION 2920-2944.5
2920. (a) A mortgage is a contract by which specific property,
including an estate for years in real property, is hypothecated for
the performance of an act, without the necessity of a change of
possession.
(b) For purposes of Sections 2924 to 2924h, inclusive, “mortgage”
also means any security device or instrument, other than a deed of
trust, that confers a power of sale affecting real property or an
estate for years therein, to be exercised after breach of the
obligation so secured, including a real property sales contract, as
defined in Section 2985, which contains such a provision.<p>
Note: This Section indicates there must be a “breach of the obligation” before foreclosure is proper. Where a lender cannot prove there was a breach of the obligation OWED TO THEM, then a foreclosure by that party or its agents should not be permitted. Therefore, a foreclosing party should be forced to prove (a) that there was an obligation owed to them (i.e. show us the original promissory note) and (b) that there was a breach of the note (ex. non-payment of scheduled payments and proper accounting of all payments received). If we send a qualified written request under RESPA Section 6 to produce a copy of the note properly endorsed, assigned and recorded, and the lender fails to comply (i.e. they cannot show possession of the note), how are we to know for sure that the obligation is owed to them, and not some other entity that claims an interest in the note?
2921. A mortgage may be created upon property held adversely to the
mortgagor.
2922. A mortgage can be created, renewed, or extended, only by
writing, executed with the formalities required in the case of a
grant of real property.
