Here is a recent email exchange I had with one of the large lender/loan servicers in regard to asserting my Client’s Truth in Lending rescission rights.

This email allows you to get a little flavor of what the big bad bailed out banks think about helping other people who need a bailout.

HERE WAS HIS EMAIL QUESTION TO ME:

It is a mystery to me why lawyers get involved with clients simply to delay the inevitable.  The only reason I’ve been able to fathom is that the lawyer gets paid instead of the bank, while the borrower continues to live in the house.  Doesn’t seem like a good way to keep one’s malpractice insurance premiums down.

I’m not suggesting that is what you’re doing here.  However, XXXXXXX must protect itself and the loan owner from such pointless shenanigans.

I’m not aware of a new date for the foreclosure sale, but this doesn’t mean that one hasn’t been set……

NOTICE HOW HE SEEMS INTENT ON LECTURING ME ABOUT MY MALPRACTICE INSURANCE AND ASSUMING EVERYTHING IS INEVITABLE.  IN HIS WORLD, THERE IS NO TAKING ON THE BANKS, NO QUESTIONING THE BANKS, NO DEFIANCE THAT WILL BE TOLERATED BY THE BANKS, THEY GOT THEIR MODIFICATION BUT HOW DARE YOU TRY TO ASSERT YOUR LEGAL RIGHTS, ESPECIALLY WHERE VALID TRUTH IN LENDING RESCISION RIGHTS WERE PRESENTED AS PROOF TO THIS GUY.  HERE IS MY RESPONSE TO THE GENTLEMAN.

XXXXXXXX,

I can appreciate your position here are a few mysteries I am looking for answers to:

(1) Why when banks get bailed out big time, do they act like no homeowner deserves a decent bailout?

(2) Why in all of my cases where I find a bona fide Truth in Lending (”TILA”) violation, does the lender always either (a) deny that the violation exists in the face of attached documentary evidence, or (b) refuse to even respond to a TILA rescission letter?

(3) Why do lenders/loan servicers routinely fail to address the question of who actually owns the loan? Or provide proof of such?

(4) Why do loan servicers routinely fail to respond, or fail to respond in a timely manner, to legitimate qualified written requests under RESPA?

(5) Why are lenders refusing to do short-sales at or near fair market values only to find that they get less at a foreclosure sale?

(6) Why are lenders/loan servicers routinely making blatantly false declarations under California Civil Code Section 2923.5?

(7) Why is California Civil code section 2923.6 routinely violated?

(8) Why do “lenders” continue to try to collect payments where the loan in question was already paid off via insurance, bailout money etc.?

(9) Why is it that MERS continues to try to pretend it is a beneficiary and foreclose on people?

(10) Why is it so many substitutions of trustee are invalid and the resulting Notice of Default invalid and not in compliance with California Foreclosure Laws?

(11) Why is it that other lawyers who represent banks (who are making out pretty nicely for their efforts) complaining about other lawyers who are fighting for Clients who want to keep their houses and exercise legal rights that they clearly have?

(12) Why won’t attorneys for lenders/investors be honest about sale dates?  Is there truly something to hide or is it a total lack of respect for attorneys who represent deadbeat homeowners?

As a lawyer, I am sure you are aware there are two sides of the coin here.  It is not a black and white issue.  Can you send me proof of who the owner of this loan is in the form of an indorsed promissory note that your client is in possession of?  I have not seen any proof.  Seriously, do not fault us for fighting for the rights of homeowners who are often facing severe financial hardship (usually for reasons out of their control - like a bogus economy), and who are fighting to keep a roof over their head, and using the legal rights the law affords them to fight the system that was setup to defeat them.

To your malpractice claim assertion, it is malpractice NOT to identify, stand-up and assert my Client’s legal rights – whatever you may think of them.

If you do not want to be straight up and inform us of the new sale date, and if foreclosure is inevitable, why not just tell me there is nothing that is going to be done, and the sale will occur whenever your Client feels like it.  I can live with that if you want to be honest.  If that is the truth let’s talk honestly about it.  I can handle the truth!

(parts omitted due to client confidentiality)

You are a beneficiary of this system partially created by your Clients, so I would not be flabbergasted by what you are dealing with.

This is a typical day in the life of dealing with big banks and fighting for our clients using every law that we can think of that may help in the fight to save a home from foreclosure.

Going hand in hand with this article, here is another post we posted discussing other reasons we work so hard to battle these banks:

Phoenix Foreclosure Defense Attorney strives to put the “TRUTH” back in Lending!

Some people have asked me, why are you passionate about foreclosure defense and helping Arizona homeowners? One of the answers I like to give is the following:

OUR MISSION: “WE ARE FIGHTING FOR “TRUTH IN LENDING” (a strange concept, i know!):

(1) WE ARE FIGHTING FOR TRUE AND ACCURATE DISCLOSURE OF A LOAN PRODUCT, ITS NATURE, AND TERMS (TELL PEOPLE THE TRUTH ABOUT THE LOANS THEY ARE LOCKING INTO). GIVE THEM THE CHARMS BOOKLET AND CALIFORNIA ARM DISCLOSURES

(2) WE ARE FIGHTING FOR TRUE AND FAIR DISCLOSURE OF THE PRICE-TAG FOR THE LOAN (APR AND FINANCE CHARGES THAT ARE TRUE AND ACCURATE). ACCURATE TRUTH IN LENDING STATEMENTS

(3) WE ARE FIGHTING FOR FAIR AND ACCURATE DISCLOSURE OF THE RIGHT TO CANCEL THE LOAN WHEN APPLICABLE (GIVE PEOPLE THEIR REQUIRED COPIES AND GIVE TRUE DATES UPON WHICH LOANS CAN BE RESCINDED)

(4) WE ARE FIGHITNG FOR FAIR AND HONEST UNDERWRITING THAT IS BASED UPON A CLIENTS TRUE ABILITY TO REPAY A LOAN (WHICH MAY MEAN VERIFYING INCOME AND TELLING SOME PEOPLE THEY DON’T QUALIFY) AND TRUE AND ACURATE APPRAISAL OF PROPERTY THAT SUPPORTS THE UNDERWRITING.

(5) WE ARE FIGHTING FOR FULL DISLCOSURE OF THE HOLDER OF THE LOAN (INVESTOR) AND PROOF AS TO WHO OWNS THE RIGHT TO BE PAID, AND THE RIGHT TO FORECLOSE, AND WHO MUST BY LAW CONTACT CALIFORNIA HOMEOWNERS TO DISCUSS LOAN MODIFICATIONS AND ASSESS BORROWER FINANCES.

(6) WE ARE FIGHTING FOR FULLFULL AND FAIR ACCOUNTING FOR PAYMENTS, LATE FEES, ESCROW CHARGES, AND OTHER CHARGES IN THE LOAN SERVICER’S BACK-ROOM. ANSWER THOSE QWR’S ON TIME, AND IN UNDERSTANDABLE DETAIL. STOP REPORTING NEGATIVE CREDIT DURING THIS PERIOD.

(7) WE ARE FIGHTING FOR HONESTY AND “TRUTH IN TRIAL PLANS” – IF HOMEOWNERS DON’T QUALIFY FOR A MORTGAGE RESTRUCTING / LOAN MODIFICATION, DON’T SEND THEM A TRIAL PLAN THAT LEADS THEM TO BELEIVE THEY DO. IN ADDITION, BE TRUTHFUL ABOUT THE PRECISE TERMS OF THE LOAN MODFIICATIONS (DISCLOSE THE TERMS CLEARLY) AND HONOR YOUR TRIAL PLAN AGREEMENTS.

ITS TIME THE LENDERS OPEN THE BOOKS AND SHOW US WHERE THE BAIL-OUT MONEY HAS GONE. WE NEED SOME TRANSPARENCY. WE NEED SOME ACCOUNTABILITY TO SHOW WHAT HAS BEEN DONE WITH TAX-PAYER MONEY. WAS YOUR LOAN ALREADY PAID OFF VIA THE BAILOUT, AND NOW THEY WANT TO COLLECT MORE MONEY FROM YOU FROM A LOAN THAT MAY HAVE BEEN ALREADY PAID? IF YOUR LOAN WAS SECURITIZED INTO A “LOAN POOL” IS THERE ANY CHANCE YOUR ENTIRE POOL OF LOAN WAS BAILED OUT AND PAID OFF? IF SO, DOES THAT MEAN THEY STILL GET TO COLLECT FROM YOU AS WELL? WHAT IS THAT? ISN’T THAT A WINDFALL……..UNJUST ENRICHMENT?

PEOPLE DESERVE TO BE REPRESENTED BY A FORECLOSURE DEFENSE LAWYER WHEN TRYING TO RESOLVE ONE OF BIGGEST PROBLEMS MOST HOMEOWNERS WILL EVER FACE. IN MANY CASES, A FORECLOSURE DEFENSE LAWYER CAN EVALUATE YOUR LOAN, REVIEW YOUR MORTGAGE DOCUMENTS (FORENSIC AUDIT), DEMAND THAT DEBTS BE VALIDATED, SEND MODIFICATION PROPOSALS, REVIEW TRIAL PLAN AND OTHER LOAN MODFICATION AGREEMENTS, ADVISE ON DEFICIENCY JUDGMENTS, DISCUSS POTENTIAL BANKRUPTCY AND SHORT-SALE OPTIONS, AND ENSURE THAT YOUR RIGHTS UNDER THE FORECLOSURE LAWS ARE ADHERED TO AND PROTECTED. THE BANKS HAVE EXPENSIVE LAWYERS ON THEIR TIME, YOU DESERVE TO BE REPRESENTED DURING THIS CONFUSING AND STRESSFUL ORDEAL. THIS IS THEIR GAME AND THEIR BATTLEFIELD.

IF YOU ARE AN ARIZONA HOMEOWNER PLEASE CONTACT US (877) 276-5084 TO DISCUSS YOUR FORECLOSURE CASE.

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KEYWORDS: ARIZONA FORECLOSURE DEFENSE LAWYER / ARIZONA FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / PHOENIX FORECLOSURE DEFENSE ATTORNEY / TRUTH IN LENDING LAWYER / TRUTH IN LENDING ATTORNEY / PREDATORY LENDING LAWYER / PREDATORY LENDING ATTORNEY / QUALIFIED WRITTEN REQUEST / RESPA LAWYER / RESPA ATTORNEY / PHOENIX TRUTH IN LENDING LAWYER / PHOENIX TRUTH IN LENDING ATTORNEY / FORENSIC LOAN AUDITS / ATTORNEY LOAN AUDITS / SCOTTSDALE FORECLOSURE DEFENSE LAWYER / SCOTTSDALE FORECLOSURE DEFENSE ATTORNEY / SCOTTSDALE TRUTH IN LENDING LAWYER / SCOTTSDALE TRUTH IN LENDING ATTORNEY / SCOTTSDALE LOAN MODIFICATION LAWYER / PHOENIX LOAN MODIFICATION ATTORNEY / OPTION ARM LOAN LITIGATION.

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ABOUT US:

The Law Offices of Steve Vondran in licensed to practice law in California and Arizona.  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

Offices:

Arizona Office (Esplanade): 2415 E. Camelback Road, Suite 700, Phoenix, AZ, 85020.

California Office (Fashion Island): 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

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Our Real Estate Law Services:

1. Loan Modifications / Loan Workouts (World Savings and Wachovia Loans)2. Commercial Lease Modifications3.DRE audits, hearings and investigations4. Real Estate Broker admissions cases5. Foreclosure Defense6. Mortgage Law & Predatory Law7. Phoenix Real Estate Zoning Attorney – Greater Phoenix (Scottsdale, Goodyear, Buckeye, Casa Grande etc.)8. Phoenix Eminent Domain Attorney / Inverse Condemnation / Prop 207 (Greater Phoenix)9. Real Estate Arbitration, Litigation and Mediation10. Foreclosure Consultant Contracts / Loan Modification Contracts11.Real Estate LLC’s & Incorporations12. Real Estate Partnership Law13. Quiet Title Actions14. Forensic Loan Audits – Greater Phoenix (Truth in Lending (TILA), RESPA, HOEPA, Fraud, etc.)______________________________________________________________________________

KEYWORDS: ARIZONA FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / SCOTTSDALE FORECLOSURE DEFENSE ATTORNEY / SCOTTSDALE FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY PREDATORY LENDING LAWYER / ORANGE COUNTY FORECLOSURE DEFENSE ATTORNEY / ORANGE COUNTY FORECLOSURE DEFENSE LAYWER /  TRUTH IN LENDING LAWYER / TRUTH IN LENDING ATTORNEY / SOUTHER CALIFORNIA MORTGAGE LAW ATTORNEY / MORTGAGE LAWYER / RIVERSIDE FORECLOSURE ATTORNEY / RIVERSIDE FORECLOSURE LAWYER / RESPA LAWYER / RESPA ATTORNEY / FORECLOSURE DEFENSE LAW / PHOENIX LOAN MODIFICATION ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY REAL ESTATE LAWYER / ORANGE COUNTY PREDATORY LENDING AND MORTGAGE LITIGATION ATTORNEY / NEWPORT BEACH FORECLOSURE DEFENSE LAWYER / NEWPORT BEACH FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE LAWYER / PREDATORY LENDING LAWYER / LOAN RESCISSION ATTORNEY / TILA RESCISSION LAWYER / WACHOVIA OPTION ARM LOAN / WORLD SAVINGS OPTION ARM LOAN / RESCIND MY LOAN /

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HELPFUL FORECLOSURE DEFENSE LINKS:

To see some of other other websites dealing with the financial crisis please review the following websites:

(1) www.OptionArmLawyer.com (potential attacks against the predatory option arm loan – aka “Pick-a-Prey”)

(2) www.TrialPlanFraud.com (tackling issues involved with what we call trial-plan shennanigans)

(3) www.BKAttorneyS.net (BK Attorney Steve – Chapter 7 Bankruptcy information for Arizona and California Homeowners)

(4) www.RescindMyLoan.net (website that discusses Truth in Lending Rescission information)

(5) www.LoanModRadio.com (site which features foreclosure defense issues in streaming audio)

(6) www.ProduceTheNoteAttorney.com (general information on the “Produce the Note” foreclosure defense strategy that is running rampant on the Internet)

www.LoanModSolutions.net (Submit your Wachovia / World Savings Loans)

www.LoanModificationRipoff.net (Submit your Loan Mod Scam – we may be able to take your case on contingency).

Our profiles will also be listed on www.ContingencyCase.com an online legal directory for lawyers who will consider taking cases on a contingency fee basis in a variety of legal areas.  I will be listed for our World Savings and Wachovia Option Arm loans.

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Our Real Estate Law Services:

1. Loan Modifications / Loan Workouts (World Savings and Wachovia Loans)

2. Commercial Lease Modifications

3. DRE audits, hearings and investigations

4. Real Estate Broker admissions cases

5. Foreclosure Defense

6. Mortgage Law & Predatory Law

7. Phoenix Real Estate Zoning Attorney – Greater Phoenix (Scottsdale, Goodyear, Buckeye, Casa Grande etc.)

8. Phoenix Eminent Domain Attorney / Inverse Condemnation / Prop 207 (Greater Phoenix)

9. Real Estate Arbitration, Litigation and Mediation

10. Foreclosure Consultant Contracts / Loan Modification Contracts

11. Real Estate LLC’s & Incorporations

12. Real Estate Partnership Law

13. Quiet Title Actions

14. Forensic Loan Audits – Greater Phoenix (Truth in Lending (TILA), RESPA, HOEPA, Fraud, etc.)

THE LAW OFFICES OF STEVE VONDRAN IS LICENSED TO PRACTICE LAW IN ARIZONA AND CALIFORNIA.  PLEASE DO NOT SEND US CONFIDENTIAL EMAILS OR POST CONFIDENTIAL CASE INFORMATION ON ANY OF OUR BLOGS OR WEBSITES. THERE IS NO GUARANTEE OF PRIVACY.

WE SERVE ARIZONA REAL ESTATE CLIENTS IN THE FOLLOWING CITIES: PEORIA, SURPRISE, SUN CITY, PHOENIX, GLENDALE, CASA GRANDE, SCOTTSDALE, TEMPE, MESA, CHANDLER, MARICOPA, BUCKEYE, GOODYEAR, AVONDALE AND OTHER SURROUNDING CITIES IN THE GREATER PHOENIX AREA.

THIS IS AN ADVERTISEMENT AND COMMUNICATION PURSUANT TO STATE BAR RULES.

MY COMMENTS ARE IN BOLD AND MERELY REPRESENT MY OPINION.

Chilton v. Federal Nat. Mortg. Ass’n, Slip Copy, 2009 WL 5197869 (E.D.Cal.)



ORDER RE PROPOSED ORDER TO SHOW CAUSE AND MOTION FOR TEMPORARY RESTRAINING ORDER



Plaintiff filed a complaint on December 16, 2009, alleging that Defendant, Federal National Mortgage Association, violated unspecified provisions of federal law within “Title 15 U.S.C. and/or Title 18 U.S.C.” because Defendant initiated non-judicial foreclosure on her property, located in Clovis, California, without possessing the genuine original note.” She advances no other bases for relief.

Plaintiff has also filed an “order to show cause and motion for temporary restraining order,” in an attempt to block the foreclosure process.
To obtain temporary or permanent injunctive relief, a plaintiff must demonstrate likelihood of success on the merits. Here, Plaintiff’s only legal theory has been resoundingly rejected as a basis for relief. It is well-established that non-judicial foreclosures can be commenced without producing the original promissory note.

THAT’S THE PART THAT HURTS. I SUPPOSE ANYONE WHO SHOWS UP ON FORECLOSURE DAY CLAIMING TO BE THE HOLDER OF THE LOAN (WHETHER IT IS MERS PRETENDING TO BE THE BENEFICIARY OR THE NOMINEE OF THE LENDER, THE LOAN SERVICER PRETENDING TO BE THE HOLDER OF THE LOAN OR SOME OTHER THIRD PARTY, LIKE WALLMART FOR EXAMPLE, CLAIMING TO BE THE HOLDER OF THE LOAN) GETS AN UNFETTERED RIGHT TO FORECLOSE, AND A FREE PASS FROM ANY JUDICIAL SCRUTINY WHATSOEVER.

The Court went on to state:

“Non-judicial foreclosure under a deed of trust is governed by California Civil Code Section 2924 which relevant section provides that a “trustee, mortgagee or beneficiary or any of their authorized agents” may conduct the foreclosure process.” California courts have held that the Civil Code provisions “cover every aspect” of the foreclosure process, (case cited), and are “intended to be exhaustive,”(another case cited). There is no requirement that the party initiating foreclosure be in possession of the original note.

AFTER LEVELING THIS BLOW THE COURT CITED A FEW OTHER CASES THAT RESULTED IN THE SAME OUTCOME FOR PLAINTIFFS ASSERTING THE “PRODUCE THE NOTE” FORECLOSURE DEFENSE STRATEGY (OBVIOUSLY IN AN ATTEMPT TO TELL FUTURE LITIGANTS IN CALIFORNIA “GIVE UP TRYING TO VERIFY ANYONES CREDENTIALS”):

(1) See, e.g., Nool v. HomeQ Servicing, — F.Supp.2d —-, 2009 WL 2905745 (Sep. 4 2009) (”There is no requirement that the party initiating foreclosure be in possession of the original note.”);

(2) Candelo v. NDEX West, LLC, 2008 WL 5382259, at *4 (E.D.Cal. Dec.23, 2008) (”No requirement exists under statutory framework to produce the original note to initiate non-judicial foreclosure.”);

(3) Putkkuri v. ReconTrust Co., 2009 WL 32567, *2 (S.D.Cal. Jan.5, 2009) (”Production of the original note is not required to proceed with a non-judicial foreclosure.”);

(4) Phillips v. MERS Mortgage Electronic Registration Systems, 2009 WL 3233865, 9 (E.D.Cal.2009); Vargas v. Reconstruction Co., 2008 U.S. Dist. LEXIS 100115, at *8-9 (E.D.Cal. Dec. 1, 2008).


WE HAVE PREVIOUSLY DISCUSSED THE KANSAS SUPREME COURT CASE THAT DISCUSSED THE ROLE OF MERS IN WHICH THE COURT SEEMED TO SUGGEST THAT MERS WAS NOT A BENEFICIARY UNDER THE DEED OF TRUST JUST BECAUSE THEY SAY THEY ARE IN THE DOCUMENT. THE COURT ADDRESSED PLAINTIFF’S RELIANCE ON THAT CASE:

“Plaintiff’s reliance on Landmark National Bank v. Kessler, 216 P.3d 158, 2009 Kan. LEXIS 834 (Kan.2009), is misplaced. That case concerned a company, Mortgage Electronic Registration Systems, Inc. (”MERS”), that acted on behalf of a lender to finalize a second mortgage on Kessler’s home. For procedural reasons not relevant to the present case, it became necessary for the Kansas court to determine whether MERS possessed an interest in the second mortgage, eventually concluding that under the specific facts of that case, MERS was more like an agent than a buyer/owner of the note.”

THE COURT CONTINUED:

“In reaching this conclusion, the Landmark court noted: 
Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable. “The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo.App.2009).”


THE COURT CHIMED IN ON THIS LEGAL REQUIREMENT:

“This language merely stands for the proposition that one possessing the deed of trust cannot foreclose on a mortgage without (1) also possessing some interest in the promissory note, or (2) obtaining permission to act as agent of the note-holder. This has nothing whatsoever to do with possession of the “original” promissory note document, i.e., the original piece of paper with original signatures, etc., the possession of which is not required to initiate non-judicial foreclosure in California. Because Plaintiff cannot possibly establish any likelihood of success on her current claim for relief, it is not necessary to set her motion for temporary injunctive relief for hearing. Her motion is DENIED. IT IS SO ORDERED.”


There you have it friends, as we have been telling callers to our office seeking foreclosure defense, DO NOT RELY ON “PRODUCE THE NOTE” AS A SILVER BULLET FORECLOSURE DEFENSE THAT IS GOING TO STOP YOUR FORECLOSURE WITH AN INJUNCTION AND GET YOUR HOUSE FOR FREE. IF THERE ARE GLARING IRREGULARITIES, AND OTHER LEGAL GROUNDS TO GET YOU INTO COURT VALIDLY, THEN YOU MAY WANT TO TAG ON THIS CLAIM AND SEE IF YOU CAN GET A DIFFERENT OUTCOME FROM A DIFFERENT JUDGE, BUT SUFFICE IT TO SAY AS A STAND-ALONE LEGAL THEORY, THERE IS SIMPLY NOT MUCH TEETH TO THE THEORY. MOST OF THE CASES WHERE YOU HEAR OF SOME SUCCESS COME FROM FLORIDA AND OHIO AND OTHER “JUDICIAL FORECLOSURE” STATES WHERE THE LENDER IS FORCED TO FILE IN COURT TO START THE FORECLOSURE PROCESS. IN THESE CASES, THE ISSUE BECOMES A QUESTION OF “STANDING” AND “REAL PARTY IN INTEREST.” THERE IS ALSO THE BANKRUPTCY ANGLE THAT WE WILL BE EXPLORING IN GREATER DETAIL IN FUTURE POSTS.

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In a similar case, NEWBECK v. WASHINGTON MUTUAL BANK, Slip Copy, 2010 WL 291821 (N.D.Cal.), the Court essentially held the same way when a Plaintiff tried to argue “produce the original note” as a strategy to set aside a foreclosure sale that had already occurred. In this case the Court first discussed the dreaded issue of challenging a foreclosure sale that had already been finalized, and the Court’s comments shed light on how one-sided the laws are when you dare take on a “lender” in Court

“Plaintiffs ask the Court to set aside Washington Mutual’s foreclosure sale of their property. They assert that Washington Mutual did not have possession of the original mortgage note or the deed of trust under which it was secured and, as a result, it was not entitled to foreclose. A plaintiff seeking to set aside a foreclosure sale must first allege tender of the amount of the secured indebtedness. Abdallah v. United Savings Bank, 43 Cal.App.4th 1101, 1109, 51 Cal.Rptr.2d 286 (1996) (citing FPCI RE-HAB 01 v. E & G Investments, Ltd., 207 Cal.App.3d 1018, 1021-22, 255 Cal.Rptr. 157 (1989)); Smith v. Wachovia, 2009 WL 1948829, at *3 (N.D.Cal.). Without pleading tender or the ability to offer tender, a plaintiff cannot state a cause of action to set aside a foreclosure sale. Karlsen v. Am. Savings & Loan Ass’n, 15 Cal.App.3d 112, 117, 92 Cal.Rptr. 851 (1971) (citing Copsey v. Sacramento Bank, 133 Cal. 659, 662 (1901)); Smith, 2009 WL 1948829, at * 3 (citing Karlsen ). Plaintiffs allege neither tender nor their ability to offer tender. Thus, they do not state a claim to set aside the foreclosure sale.

THIS MEANS, IF YOU ARE CHALLENGING A FORECLOSURE SALE AND SEEK TO SET IT ASIDE (ON WHATEVER PROPER GROUNDS YOU MAY HAVE) YOU NEED TO AT LEAST ALLEGE A WILLINGNESS AND ABILITY TO TENDER. IF ALL ELSE FAILS, YOU MAY WANT TO TELL THE JUDGE THAT YOU WILL TENDER THE FULL BALANCE DUE AFTER YOU COLLECT ON YOUR FRAUD JUDGEMENT. SOMETIMES THIS MAY BE ALL YOU HAVE WHEN YOU ARE WAY UPSIDE DOWN ON YOUR PROPERTY.

THE COURT THEN WENT ON TO DISCUSS WHAT MIGHT HAPPEN EVEN IF YOU COULD TENDER:

“Even if they alleged tender, the basis on which they appear to seek relief does not support their claim. In California, there is no requirement that a trustee produce the original promissory note prior to a non-judicial foreclosure sale. See, e.g., Pantoja v. Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1186 (N.D.Cal.2009); Smith, 2009 WL 1948829, at *3; Neal v. Juarez,2007 WL 2140640, *8 (S.D.Cal.) (citing R.G. Hamilton Corp. v. Corum, 218 Cal. 92, 94, 97, 21 P.2d 413 (1933); Cal. Trust Co. v. Smead Inv. Co., 6 Cal.App.2d 432, 435, 44 P.2d 624 (1935)).California Civil Code Sections 2924 through 2924k “provide a comprehensive framework for the regulation of a non-judicial foreclosure sale pursuant to a power of sale contained in a deed of trust.” Knapp v. Doherty, 123 Cal.App.4th 76, 86, 20 Cal.Rptr.3d 1 (2004) (quoting Moeller v. Lien, 25 Cal.App.4th 822, 830, 30 Cal.Rptr.2d 777 (1994)). Knapp explains the non-judicial foreclosure process as follows: Upon default by the trustor [under a deed of trust containing a power of sale], the beneficiary may declare a default and proceed with a nonjudicial foreclosure sale. The foreclosure process is commenced by the recording of a notice of default and election to sell by the trustee. After the notice of default is recorded, the trustee must wait three calendar months before proceeding with the sale. After the 3-month period has elapsed, a notice of sale must be published, posted and mailed 20 days before the sale and recorded 14 days before the sale. Knapp, 123 Cal.App.4th at 86, 20 Cal.Rptr.3d 1 (citation omitted).

I SUPPOSE YOU ARE NEVER ALLOWED TO ASK WHO THE “BENEFICIARY” IS OR MAKE ANYONE PROVE THAT POINT BEFORE THEY TAKE YOUR HOUSE. ARE YOU ALSO ALLOWED TO ASK WHO THE BENEFICIARY IS FOR PURPOSES OF COMPLIANCE WITH CALIFORNIA CIVIL CODE SECTION 2923.5 AND THE DECLARATION THAT IS MADE UNDER THIS SECTION? WE WILL DISCUSS THIS ISSUE IN ANOTHER BLOG POST.

ANYWAY, I DIGRESS, THE COURT CONTINUED:

“A properly conducted nonjudicial foreclosure sale constitutes a final 13 adjudication of the rights of the borrower and lender.” Plaintiffs have not pointed to controlling authority to show that this statutory scheme requires production of the original promissory note or deed of trust. Thus, even if they alleged tender, to the extent that they allege irregularities in the foreclosure sale based on Washington Mutual’s failure to produce the original promissory note or deed of trust, they do not state a claim.

AS DISCUSSED ABOVE, ONLY OUT OF STATE CLAIMS FOR PRODUCE THE NOTE WERE CITED (THESE COME FROM THE JUDICIAL FORECLOSURE STATES).

“Plaintiffs cite various out-of-state cases, which apply non-California law to judicial foreclosure actions. See In re Foreclosure Actions, 2007 WL 4034554 (N.D.Ohio); In re Foreclosure Cases, 2007 WL 3232430 (N.D.Ohio); Landmark Nat’l Bank v. Kessler, 289 Kan. 528, 216 P.3d 158 (2009); U.S. Bank Nat’l Ass’n v. Ibanez, 2009 WL 3297551 (Mass.Land Ct.). Because these cases do not apply California’s non-judicial foreclosure sale statutes, they do not support Plaintiffs’ position.”
SO THERE YOU HAVE IT, MORE PROOF OF THE MOUNTAIN YOU MUST CLIMB TO GET TO THE PROMISED LAND. AS WE TELL OUR CLIENTS, FORECLOSURE DEFENSE IS NOT AN EASY BUSINESS.

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KEYWORDS: CALIFORNIA FORECLOSURE DEFENSE LAWYER / PHOENIX FORECLOSURE DEFENSE LAWYER / ARIZONA LOAN MODIFICATION LAWYER / PRODUCE THE NOTE FORECLOSURE DEFENSE STRATEGY / SCOTTSDALE LOAN MODIFICATION / PHOENIX BANKRUPTCY LAWYER / PHOENIX BK ATTORNEY / NEWPORT BEACH FORECLOSURE LAWYER / INJUNCTION TO STOP FORECLOSURE / TRO / LIS PENDENS / SB1137 / FILE CHAPTER 7 BANKRUPTCY / MERS / SECURITIZED LOANS / QWR.

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AUTHORS NOTE: IF THE CALIFORNIA FORECLOSURE STATUTES GOVERN THE FORECLOSURE SALE PROCESS, AND IF NOTHING ELSE REALLY MATTERS, THEN YOU NEED TO TAKE A CLOSE LOOK AT WHETHER THAT STATUTE IS BEING COMPLIED WITH WHEN LOOKING TO OBTAIN AN INJUNCTION TO HALT FORECLOSURE.