FORECLOSURE DEFENSE: CALIFORNIA SOMETIMES IT’S THE LITTLE THINGS THAT COUNT

25 Apr

As I continue through this journey through the maze created by lenders, investment bankers, title agents and closing/escrow agents I keep discovering things that end up being quite interesting.

For example: In California the requirements for posting Notice of sale are very clear and yet, I am told that they are routinely ignored. This would invalidate the notice of sale on the most basic of concepts “notice,” by definition and therefore could be attacked at any time as a defect of service and jurisdiction while at the same time bring your claims under TILA, usury, identity theft, fraud, etc. California requires public and private posting as do most other states. The public part is what they ordinarily ignore. see notice-of-the-sale-thereof-shall-be-given-by-posting-a-written-notice

With the new law changes Civil code 2923.5  that became effective Sept 6, 2008 it adds more procedures that are routinely not followed ie. a Declaration must be attached and recorded that recites that the lender has met and assessed the borrowers financial condition and made alternatives to forclosure ie. modification. First they don’t do it and second the declaration is not even under penalty of pujury. So on its face the sale could be set aside.

After the notice of default the lender routinely switches trustee’s and records a Substitution of trustee with an affidavit that is not under penalty of perjury. Again the sale could be set aside for this.

For example. MERS, whose legal status is dubious at best anyway inasmuch as it plainly violates the recording requirements of every state and which supposedly has not one but multiple corporate entities, one of which has been suspended from operation in California, is subject to specific instructions as to what to do with the “master Deed of Trust and what to do with the individual deed of trust, the procedures, language to be inserted etc. These too I am told are routinely ignored especially when it comes to (a) showing that you have provided a copy of the Master Deed of Trust and (b) having the proof as specifically required in the FNMA/Freddie instruction sheet.

As stated in my other posts, the entire MERS concept causes, in my opinion, a separation between the alleged security instrument and provisions, the Trustee’s authority and the note, all of which end up being different people who were all “real parties in interest” receiving fees and value not disclosed in the GFE or settlement statement. In all these closings the borrower is subjected to a series of documents that hide the true nature of the transaction, the true source of funds, the true lender, and the application of funds contrary to the terms of the note.

All of these new requirements create questions of fact, that if not correct, create a method to set aside the sale by way of court action. I guess that’s the point the lenders trustees and servicers are banking on the victims not fighting it.

3 Responses to “FORECLOSURE DEFENSE: CALIFORNIA SOMETIMES IT’S THE LITTLE THINGS THAT COUNT”

  1. Jeff Dembicer May 8, 2009 at 2:19 pm #

    PLEASE TIM! Need advice (California);
    I was in foreclosure and 2 days prior to sale, I filed a Ch 13. I’ve been able to get extensions for over 1 1/2 yrs but they’re ready to throw me out. I have a lawsuit almost ready to go. I was going to file under TILA et al, and under Cal UCL et al using rescission and recoupment because all I ever wanted to do was modify. Problem, I am over 3 years which bars rescission in federal court. When I file my Adversary Proceding in Fed Ct, do I still use rescission? Is that the only way to get recoupment? Does the charge of FRAUD affect my right to rescind over the S.O.L? Also, by filing both in Fed and State Courts, am I liable to “preemption” or “preclusion”? Since I’m in Fed Court via Ch13 already, should I file in State first just in case? Don’t they usually remand to the first filed? Please advise as I go to Ch13 court on May 13 and they are sure to dismiss. If I don’t file before my case is dismissed, how might this change my filing and/or strategy?

  2. Jeff Dembicer May 10, 2009 at 1:28 am #

    PLEASE TIM! Need advice (California);
    I was in foreclosure and 2 days prior to sale, I filed a Ch 13. I’ve been able to get extensions for over 1 1/2 yrs but they’re ready to throw me out. I have a lawsuit almost ready to go. I was going to file under TILA et al, and under Cal UCL et al using rescission and recoupment because all I ever wanted to do was modify. Problem, I am over 3 years which bars rescission in federal court. When I file my Adversary Proceding in Fed Ct, do I still use rescission? Is that the only way to get recoupment? Does the charge of FRAUD affect my right to rescind over the S.O.L? Also, by filing both in Fed and State Courts, am I liable to “preemption” or “preclusion”? Since I’m in Fed Court via Ch13 already, should I file in State first just in case? Don’t they usually remand to the first filed? Please advise as I go to Ch13 court on May 13 and they are sure to dismiss. If I don’t file before my case is dismissed, how might this change my filing and/or strategy?

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  1. Timothymccandless's Weblog - July 10, 2010

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