Why Robo-Signatures Are Illegal in California and Other Non-Judicial Foreclosure States

9 Feb

With all of the press robo-signing has gotten, it is a bit surprising that everyone is having such a hard time concluding whether these practices effect California foreclosures. My assistant even said to me today, “but the banks say that it doesn’t matter because California is non judicial.”

Because the topic has not gotten the treatment it deserves, I will gladly do the job. The following are by no means a complete list, but are the most clear LEGAL reasons (setting aside pure moral questions and the U.S. Constitution) that the Robo-Signer Controversy will lead to massive litigation in California.

In short, Robo Signers are illegal in California because good title cannot be based on fraud, robo signed non judicial foreclosure sales are void as a matter of law, the documents are not able to be recorded in California if they are not notarized, which we know was often not done properly, and finally, because they robo signed forgeries ARE intended for judicial proceedings, including evictions and bankruptcy relief from stay motions.

1. Good Title Cannot Be Based on Fraud (Even as to a 3d Party).

In the case of a fraudulent transaction California law is settled. The Court in Trout v. Trout, (1934), 220 Cal. 652 at 656 made as much plain:

“Numerous authorities have established the rule that an instrument wholly void, such as an undelivered deed, a forged instrument, or a deed in blank, cannot be made the foundation of a good title, even under the equitable doctrine of bona fide purchase. Consequently, the fact that defendant Archer acted in good faith in dealing with persons who apparently held legal title, is not in itself sufficient basis for relief.” (Emphasis added, internal citations omitted).

This sentiment was clearly echoed in 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279 at 1286 where the Court stated:

“It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly, unfairly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties.” (Emphasis added).

Hence, if forged Robo Signed signatures are used to obtain the foreclosure, it CERTAINLY makes a difference in California and other non-judicial foreclosure states.

2. Any apparent sale based on Robosigned documents is void – without any legal effect – like Monopoly Money.

In Bank of America v. LaJolla Group II, the California Court of Appeals held that if a trustee is not contractually empowered under the Deed of Trust to hold a sale, it is totally void. It has no legal effect whatsoever. Title does not transfer. No right to evict arises. The property is not sold.

In turn, California Civil COde 2934a requires that the beneficiary execute and notarize and record a substitution for a valid substitution of trustee to take effect. Thus, if the Assignment of Deed of Trust is robo-signed, the sale is void. If the substitution of trustee is robo-signed, the sale is void. If the Notice of Default is Robo-Signed, the sale is void.

3. These documents are not recordable without good notarization.

In California, the reason these documents are notarized in the first place is because otherwise they will not be accepted by the County recorder. Moreover, a notary who helps commit real estate fraud is liable for $25,000 per offense.

Once the document is recorded, however, it is entitled to a “presumption of validity”, which is what spurned the falsification trend in the first place. Civil Code section 2924.

Therefore, the notarization of a false signature not only constitutes fraud, but is every bit intended as part of a larger conspiracy to commit fraud on the court.

4. The documents are intended for court eviction proceedings.

A necessary purpose for these documents, AFTER the non judicial foreclosure, is the eviction of the rightful owners afterward. Even in California, eviction is a judicial process, albeit summary and often sloppily conducted by judges who don’t really believe they can say no to the pirates taking your house. However, as demonstrated below, once these documents make it into court, the bank officers and lawyers become guilty of FELONIES:

California Penal Code section 118 provides (a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.

Penal Code section 132 provides: Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.

The Doctrine of Unclean Hands provides: plaintiff’s “unclean hands” bar injunctive relief when the plaintiff’s misconduct arose from the transaction pleaded in the complaint. California Satellite Sys. v Nichols (1985) 170 CA3d 56, 216 CR 180. The unclean hands doctrine demands that a plaintiff act fairly in the matter for which he or she seeks a remedy. The plaintiff must come into
court with clean hands, and keep them clean, or he or she will be denied relief, regardless of the merits of the claim. Kendall-Jackson Winery Ltd. v Superior Court (1999) 76 CA4th 970, 978, 90 CR2d 743. Whether the doctrine applies is a question of fact. CrossTalk Prods., Inc. v Jacobson (1998) 65 CA4th 631, 639, 76 CR2d 615.

5. Robo Signed Documents Are Intended for Use in California Bankruptcy Court Matters.

One majorly overlooked facet of California is our extremely active bankrtupcy court proceedings, where, just as in judicial foreclosure states, the banks must prove “standing” to proceed with a foreclosure. All declarations submitted in support of standing to file a proof of claim, objections to a plan and most importantly perhaps Relief from Stays are fraud upon bankruptcy court if signed by robo-signers.

Conclusion

Verified eviction complaints, perjured motions for summary judgment, and all other eviction paperwork after robo signed non judicial foreclosures in California and other states are illegal and void. The paperwork itself is void. The sale is void. But the only way to clean up the hundreds of thousands of effected titles is through litigation, because even now the banks will simply not do the right thing. And that’s why robo signers count in non-judicial foreclosure states. Victims of robosigners in California may seek declaratory relief, damages under the Rosenthal Act; an injunction and attorneys fees for Unfair Business practices, as well as claims for slander of title; abuse of process, civil theft, and conversion.Timothy McCandless Esq. and Associates
Offices Statewide

(909)890-9192 begin_of_the_skype_highlighting (909)890-9192 end_of_the_skype_highlighting

(925)957-9797 begin_of_the_skype_highlighting (925)957-9797 end_of_the_skype_highlighting

FAX (909) 382-9956
tim@Prodefenders.com

http://www.timothymccandless.com

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14 Responses to “Why Robo-Signatures Are Illegal in California and Other Non-Judicial Foreclosure States”

  1. Steve February 9, 2011 at 9:24 pm #

    You are a wealth of information and help. Yhank you for all your great articles

  2. dcsocal February 10, 2011 at 9:42 pm #

    And all sounds so sensical yet no attorney or group has been willing to take on and slay the monster… ?Why? If enough lawyers believed the same, if enough judges were put son the spot, or appealed to the highest court of the state, if the attorny general would have to take a stand…. maybe just maybe this dragon monster might be slayed….

  3. a p giannini - M g March 25, 2011 at 11:18 pm #

    Michael williams g , now if its the law they can’t do it , with out the real owner , a trustee or the executor trust , all trust anyway right because they not the owner , just employees , so , I didn’t sign nothing , for no sale of realistate , in no state , or country , ever , I sign a life insurance policy from my older brother who is the sole executor over bank of america for me that was it , he had me to sign it with my ss number at the time I didn’t no its so I guess it , and it was the erong number I gave him , but if he’s my executors why didn’t he let me no he was , and why haven’t he let me sign nothing on the behalf of my corp , of if they arrest her in 2004 after fraud reported 2002 , what realistate did she sell in 2003 . Year before the arrest .I’m thinking this lady got to have over 250 counts of fraud for every years sense 2001 , when she was granted full power over me , but this don’t make sense if the brother was the executor , he had to no she was doing fraud over me , cause he new that person wasn’t me , and why would I be paying rent on my own stuff , I live on the street with nothing and own everything , they need stop the power of attorney crap . And just let a person run his own stuff onless they are 100% handy cap . Those trustee a rob u blind . So if the realistate agent was selling property they had to have the owner sign off , and that owner wasn’t me its fraud . And if the executor sold the property that fraud to from what they saying a trust cannot sell realistate .those some killer frauder , they took that fraud threw irs and fed goverment , its clearly they not scard of the law , its like the law is a tea party to them . I got to, contact, the law in italy and england .that the mother land of my weath started over their .and here and then global . So if I’m right the county clerk couldn’t have let tranfer take place on the house or lot base on , owner not signing that mean they made up a owner and got it done . Wow ! So I have a strong case up their los angles , cause I haven’t told them to give nobody loan on property of sell no property . They trying kill me and my clients with this bull dinner . So that’s onto tittle insurance claim , get that police report all those home owner got claims ! For fraud , against all my banks , wellsfargo chase bank of america , isent that a police report to if bank of america back tpyed the fraud .overheard at alliance bancorp .I have a police report from a arrest made . Tho , 2 of them , fulton county ga , dekalb county ga ,gloria mayes , not only took me and the dad out she took his sister out too , this people are no joke .

  4. Frank L. Lucero April 8, 2011 at 8:17 am #

    Timothy, Can you recommend a Lawyer in Southern California who can fight for me and my Family.
    Thank You Very Much,
    Frank L. Lucero

  5. michael rockefella a p giannini May 1, 2011 at 6:43 pm #

    The brother keep telling me he’s not the trustee sole executor , the brother keep telling me to leave him aloan about something 13 years old .his grand mother and his girl friend passed away on the arrest warrent city of atl ga 1460-62 memorial dr se atl ga 30317 . He said nothing , gloria jean mayes almost killed the dad 2 living sister around corner from the address above , he said he didn’t care about that , the older brother said , the hell with , letting the lady robbed the company address for 100 millions of document . And he also said , the da office is lying he don’t work for the banks .as nothing , so , where is the truth her . Soleproityship and joint ownship with right . And beneficary of all of the dad companies , starting with bank of america aka chemical bank , united state mortgage and trust company . Merger 1906 -1930 . 1996 . That was done by charles and his son james , as history . These people tring to shut me up u can’t shut a president up of a bank that big . And they need to read the 1 book of the bible and the 4 chapter . And they a see something that make a lot of sense here . People kill but , the vitim blood keep on talking . ! ! ! !

  6. michael grimes May 2, 2011 at 8:57 pm #

    I. No james williams and me was robbed , but why can’t I see the paper work , the dad put together for me , that my dad and human right . Why are they taking my human right , and giving everybody else their right , but me . A p giannini – charles mitchell . Citi group – michael mitchell citi group fraud . Travelers insurance group fraud . Marvin grimes .

  7. michael w grimes June 11, 2011 at 9:40 pm #

    The trustee of bank of america – is saying the law is that he can abandon the hold family and the family owner president if he want too , but , why would a trustee do his family like that , onless he hates them and wants them dead , this trustee wants everybody dead from the looks of it . I don’t understand this trustee stuff , I haven’t even seen the paper work too this trustee , or never even sign to agree with this trustee . This trustee trying to make mad and to go do something doom that a wipe me out , I have even got into it with this trustee on a mad level because I feel all of this is x wrong . And it is . Who would make a law saying , a trustee is a owner , onto his dead line date . He might as well made him the owner if that’s so , because he is the owner , the owner has no say so . The only thing the owner can do is make complants , which to nothing happen to these people , more is happen to me then them I’m a vitim . This trustee told me if I call him a again he a have me arrested and put away , and for my own stuff . And he never show me no proff he’s a trustee by law . Why is he hideing the paper if its a good claim to him self , why make me go to the web and show off his cause like this if he can show tha stuff and keep all of this down . One thing I can tell u he no if I’m in their with the born power to bank and sell , its a make him look bad , and it will make him look bad , michael jordan , made charles barley – on the court look bad why cause he was a super baseket ball player , and he was a reg born ball player .

  8. Frank L. Lucero and Family July 10, 2011 at 6:50 pm #

    Timothy, I tried to stop the eviction process, but the UD Commissioner did not want to hear it.
    I will have to move as soon as next week.
    I filed my civil complaint against Bank of America. They are trying to get it out of the Victorville Court and into the Federal Court in Riverside. The court date is August 11,2011 I have new found evidence in regards to Fraud, Robo Signed Documents and Notarized. I have “The Corporate Assignment of Deed of Trust” regarding my property. It was Recorded December 2010 in San Bernardino.
    MERS Assigned it over to Bank of America. The Man named Bill Koch acting as assistant secretary for MERS and Shirley Tuitupou a Notary Public for the State of Utah. They are both employed by Select Portfolio Servicing, Inc. they are the ones who serviced my Loan.
    The signature by Bill Koch and Shirley Tuitupou were forged. I have Shirley Tuitupou true signature from Her Application from the State of Utah Notary Public Commission, NO COMPARISON. I found SIX other Assignment of Deed of Trust from other FAMILIES that most likely LOST THERE HOME. all signed and Notarized, both by Bill Koch and Shirley Tuitupou and THEY ARE ALL DIFFERENT.
    Bill Koch is a “Document Control Manager for Select Portfolio Servicing, Inc.
    Shirley Tuitupou is a “Notary Public” for Select Portfolio Servicing, Inc.
    Timothy PLEASE HELP My Family and I. Up n Hesperia, California.
    Frank L. Lucero

  9. jpmorgan Jr lll August 13, 2011 at 11:23 pm #

    The best way to robbed the world is to use ya mind and , mind power , how else could a country go to war , on a fake note , weopon of mass , to be found nowhere , and all these folks dead , do yall no what gos around come around , the same way u killed all them folks for nothing somebody a do u. The same way , the evil spirit that’s resting in side humans mind here are x evil – why do I say that , not a word yet on the fraud , just let these people break the law and the hell with the vitims of these crims , na it don’t work like that , the laws are meant for , to make the land live ,when u take the laws of the land then the world cannot live then , as u can see I’m rite , we have war fraud *nd bank fraud , and the evil that Started all this mess are free , have a glass of fresh orange juice , while everybody on the top of the roof of their house ready to jump off saying where is god , and , in god we trust , aLl of that is a court work ordeR . That order gos for the hold world to follow , everybody has to follows them , or go to jail one , now , bush was a vice president, of Riggs bank na , how in the world all of these crimes getting by – people god gave everybody mind power not just the devil , god folks have power too , use ya mind – to say a nuff is a nuff close the goverment down too all the fraud stops , stop fake wars and all the bank fraud starting Monday moRning before , its comes back to bite us , with something. Way badder then we putting out . Riggs bank , kenth Riggs akA Keith Lewis , a nationsbank -bank of America na bank . Georgia Washington and Alexander Hamilton Robert moris , girard , arron burr .

  10. the Florida default law group . October 1, 2011 at 2:00 am #

    This post a close the hold gorverment down , unites states trust laws . Civil right fraud . Who can the benifary of wellsfargo bank , soleproirtyship owner benifary give a default on the trustor , if he don’t or she don’t no their name , the trustor sopposed to have giving the benifary their name . And a copy of the trust onless by law they didn’t have too . Which that is a law , but they should have given them their name at least . How can u flag the trustor if u don’t have their name and phone number or nothing in this case . Same on the trustor of wellsfargo bank company to the benifary owner . Why didn’t u let the benifary no u was his trustee ?before u sign a trust they go throw the rights of a benifary to the trustor from the jump , and the trustor sign yes he ah make it good . This benifary said he was shot and kick in the mouth and haven’t never seen the trustor – – – – etc . – – –

  11. the florida default law group inc November 8, 2011 at 8:48 pm #

    If this man is saying he got a report from clara heard probate court clerk fulton county geogia , atlanta geogia , and then a police report from the police house or county clek of fulton county , why are the theves still running the company , the company is sitting on the hill top of ca sf , and they running that company like their is no code of fraud , if a trustee put rob sign in the place of the benifiary by 3rd party , then that is fraud , and if the trust didn’t serve the owner benifiary of wellsfargo bank aka, s & l – and trust manegment , a copy of the terms and condiditins , that fraud again . Its kind like the owner of the company benifiary agent aka the trustee , made up his own rules and laws , am I rite here ? I thought a trust soppose to file something on the behalf of the trust contract any way they call it a deed pooling services , the benifiary should have been able to see that in a court of law . As we are finding out . All of this mess is a bag of pink dead flower .

  12. state of texas November 8, 2011 at 9:41 pm #

    We see the fraud posted on the trustee of the bank , as a pool & services and we know no their are in a little bit of breaking the law and we will get them , at the rite time . All states of the usa , will send in a warrent to have a warrent issued for the ceo and the pool services contractor too . And from the look of it they are taken a lot of vitim by very small crimes , but they are trying to get huge in a way , but , say no more we have them and no who they are the contract has their names on it they got to answer up too the public with a nice responce , and they will answer- throw the- usa court of law , quit title will be a good end for some of u to forcloser from the day of mers corp 3rd partying the owner of the companies et al . Even the vitim od the protest could have a law suit to cliam as well . The banks own their own surely bonding inc , and those trustee should be under a bond , too , we got to find out how much is their surelty bond is set at for them beening the trustee for the benifiary owner of the company and the benifiary for the public and so on too .

  13. change the laws fast December 4, 2011 at 12:17 pm #

    I work for a bank , and I saw where the comments above are true but its like stupid to have all the blogs , when nothing been done about it .and yes a trust has to let a benificary sign the trust contract and service him or she a copy of terms and condi etc , with it as well .

  14. Frank L. Lucero and Family December 12, 2011 at 10:45 am #

    WE ALL HAVE TO VOTE TO GET THOSE REPUBLICANS OUT OF CONGRESS, THEY ARE FOR THE RICH, aka WALL STREET. IF YOU ARE NOT RICH, THEN YOU ARE MIDDLE CLASS OR BELOW THAT. SO THEREFORE VOTE FOR ALL DEMOCRATS IN 2012. THE REPUBLICANS DO NOT CARE ABOUT YOU AND THE AMERICAN PEOPLE ALL THEY CARE ABOUT IS BEATING OBAMA IN 2012. THEY ARE UN-AMERICAN,THEY WANT TO TAKE AWAY EVERYTHING THAT OUR FATHERS AND GRANDFATHERS WORKED. THEY ALL CAN GO TO HELL, THOSE GREEDY BASTARDS.
    THE CALIFORNIA STATE ATTORNEY GENERALS OFFICE HAS ALL MY PROOF OF FORGED DOCUMENTS ROBO-SIGNED ON THE CORPORATE ASSIGNMENT OF DEED OF TRUST. I WAS APPROVED FOUR TIME ON A GOVERNMENT HAMP PROGRAM AND THEN THEY EVENTUALLY DENIED US. THE LAST HAMP LOAN MODIFICATION WAS APPROVED ON APRIL 6, 2010, THE SAME DAY THE CORPORATE ASSIGNMENT OF DEED OF TRUST WAS ALSO SIGNED APRIL 6, 2010.
    IN AMERICA YOU CAN MURDER, RAPE, STEAL, ROB AND YOU ARE ENTITLED TO A PUBLIC DEFENDER AND WE OUR LOSING OUR HOMES TO CORPORATE FRAUD AND WE ALL CAN NOT AFFORD AN ATTORNEY’S, WE SHOULD BE ENTITLED TO A PUBLIC DEFENDER AS WELL, WE ARE THE PUBLIC TOO. THE LAWS HAS TO CHANGE.
    I CAN NOT EVEN FIND AN ATTORNEY WHO WILL TAKE MY CASE ON CONSIGNMENT.
    WE CAN WIN AND BE COMPENSATED FOR ATTORNEY FEE’S BUT NO.
    MOST LAWYERS ARE AFRAID TO GO UP AGAINST THE BIG BANKS.
    I JUST HOPE AND I PRAY THAT THESE CORPORATE THIEVES PAY FOR WHAT THEY DID AND ARE STILL DOING.
    WE HAVE TOO OCCUPY CONGRESS WITH OUR VOTES.
    OVER AND OUT,
    FRANK L. LUCERO AND FAMILY.

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