Archive | July, 2011

Comptroler of the currecy consent orders

29 Jul

Recent Consent Orders
Consent Order, Sovereign Bank, Wyomissing, Pennsylvania, 04410, NE-11-17, April…
Order shall be directed to the Comptroller of the Currency, or to the individual, … or office designated
by the Comptroller of the Currency. Sovereign Bank Consent Order Page
http://www.mortgagedaily.com/forms/OccConsentOrderSovereign041311.pdf
Consent Order, OneWest Bank, FSB, Pasadena, California, 18129, WN-11-011, April…
Order shall be directed to the Comptroller of the Currency, or to the individual, division, or office
designated by the Comptroller of the Currency. OneWest Bank, FSB Consent Order
http://www.mortgagedaily.com/forms/OccConsentOrderOnewest041311.pdf
Consent Order, EverBank, Jacksonville, Florida, 15115, SE-11-014, April 13, 2011
Order shall be directed to the Comptroller of the Currency, or to the individual, division, or office
designated by the Comptroller of the Currency. EverBank Consent Order Page 24
http://www.mortgagedaily.com/forms/OccConsentOrderEverbank041311.pdf
Consent Order, Aurora Bank FSB, Wilmington, Delaware, 06069, NE-11-16, April 13…
Order shall be directed to the Comptroller of the Currency, or to the individual, division, or office
designated by the Comptroller of the Currency. Aurora Bank FSB Consent Order
http://www.mortgagedaily.com/forms/OccConsentOrderAurora041311.pdf
Consent Order U.S. Bank
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderUSBank041311.pdf
Consent Order PNC
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderPNC041311.pdf

Consent Order 2011-044
Office of the Comptroller of the Currency (“OCC”), the Board of … Office of the Comptroller of the
Currency 250 E Street … Office of the Comptroller of the Currency 250 E Street
http://www.mortgagedaily.com/forms/OccConsentOrderMerscorp041311.pdf
Consent Order MetLife
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderMetlife041311.pdf
Consent Order JPMorgan Chase
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderChase041311.pdf
Consent Order HSBC
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderHSBC041311.pdf
Consent Order Citibank
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderCitibank041311.pdf
Consent Order Bank of America
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street, … Office of the Comptroller of the Currency 101 South Tryon
http://www.mortgagedaily.com/forms/OccConsentOrderBoA041311.pdf
OCC Consent Order – PNC Bank, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and PNC Bank, N.A., April 13, 2011 back to
http://www.mortgagedaily.com/OccConsentOrderPNC041311.asp

OCC Consent Order – Onewest Bank FSB | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Onewest Bank FSB, April 13, 2011 back to
http://www.mortgagedaily.com/OccConsentOrderOnewest041311.asp
OCC Consent Order – MetLife Bank, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and MetLife Bank, N.A., April 13, 2011 back
http://www.mortgagedaily.com/OccConsentOrderMetlife041311.asp
OCC Consent Order – Citibank, N.A. | April 13, 2011 | MortgageDaily.com
Reach mortgage executives, loan originators and other people tied to mortgage industry. … Free
mortgage news for prospective borrowers. … Web site or for your RSS reader. … Data
http://www.mortgagedaily.com/OccConsentOrderCitibank041311.asp
OCC Consent Order – Everbank | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Everbank, April 13, 2011 back to story
http://www.mortgagedaily.com/OccConsentOrderEverbank041311.asp
OCC Consent Order – Aurora Bank FSB | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Aurora Bank FSB, April 13, 2011 back to
http://www.mortgagedaily.com/OccConsentOrderAurora041311.asp
OCC Consent Order – US Bank National Association | April 13, 2011 | MortgageDaily….
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and US Bank National Association, April 13,
http://www.mortgagedaily.com/OccConsentOrderUSBank041311.asp
Servicers Hit With Federal Orders – OCC announces consent orders with 8 servicers …
Office of the Comptroller of the Currency, a government … banking regulators. Acting Comptroller of the
Currency John Walsh said … 3 billion HSBC-OCC consent order JPMorgan
http://www.mortgagedaily.com/ServicerSettlement041311.asp

OCC Consent Order – Bank of America, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Bank of America, N.A., April 13, 2011
http://www.mortgagedaily.com/OccConsentOrderBoa041311.asp
OCC Consent Order – Wells Fargo Bank, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Wells Fargo Bank, N.A., April 13, 2011
http://www.mortgagedaily.com/OccConsentOrderWells041311.asp
Interagency Review of Foreclosure Policies and Practices | April 13, 2011…
Office of the Comptroller of the Currency and Office of Thrift Supervision, April 13, 2011 back to story
Your browser does not support iframes. back to story Bank news Servicing
http://www.mortgagedaily.com/InteragencyReview041311.asp
OCC Consent Order – Sovereign Bank | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Sovereign Bank, April 13, 2011 back to
http://www.mortgagedaily.com/OccConsentOrderSovereign041311.asp
OCC Consent Order – JPMorgan Chase Bank, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and JPMorgan Chase Bank, N.A., April 13,
http://www.mortgagedaily.com/OccConsentOrderChase041311.asp
OCC Consent Order – Lender Processing Services, Inc. | April 13, 2011…
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Lender Processing Services, Inc., April
http://www.mortgagedaily.com/OccConsentOrderLPS041311.asp
OCC Consent Order – Ally Financial Inc. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Ally Financial Inc., April 13, 2011 back
http://www.mortgagedaily.com/OccConsentOrderAlly041311.asp

CC Consent Order – HSBC Bank USA, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and HSBC Bank USA, N.A., April 13, 2011 back
http://www.mortgagedaily.com/OccConsentOrderHSBC041311.asp
OCC Consent Order – Suntrust Banks, Inc. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Suntrust Banks, Inc., April 13, 2011
http://www.mortgagedaily.com/OccConsentOrderSuntrust041311.asp
OCC Consent Order – MERSCORP Inc. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and MERSCORP Inc. and the Mortgage
http://www.mortgagedaily.com/OccConsentOrderMerscorp041311.asp

David and Goliath as court overturns case dissmissal

29 Jul

A Bakersfield homeowner is taking on a bank, in a battle that could have sweeping implications for people facing foreclosure.

Mark Demucha wants Wells Fargo to prove it owns his home loan. And, if his lawsuit is successful, it could set a legal precedent that slows or even stops foreclosures across the state.

“Filled out the same paperwork over and over again.”

Mark Demucha says all he wanted was to keep his house. “Sent it to them over and over again. I couldn’t give you the exact time frame, but it’s ridiculous,” he said.

But, after a year of trying to get a loan modification from Wells Fargo… “I had to do something to protect my family. to protect my home.”

He felt all washed up. “Not yes, not no, not anything. They didn’t respond.”

Demucha turned to family friend Michael Finley who happens to be a lawyer.

“A company that does not have a legal right to collect mortgage payments should not have the right to foreclose,” said Finley.

Now, in a case that could have far-reaching implications, Demucha and Finley say they have one simple request. “If they are going to take my house, I should be able to see they have a legal right to take it from me,” said Demucha. “They come to me and want me to have every single piece of paper I was ever supposed to have. But, when I say ‘hey where is my promissory note?’ they look at me like I’m a thief.”

That’s because Wells Fargo didn’t loan Demucha the money to buy his house. Another company called CTX Mortgage, did.

Banks, at the time, seemed like they were almost using the housing market as a roulette wheel or a craps table. They were shoving debt around like it was a card game.

Like so many millions of homeowners, Demucha’s loan was sold to another lender, a common practice because it’s profitable to the banks.

In the old days, any time ownership of a property and its loan changed hands, it would be recorded at the Hall of Records at a cost of $18. For the mortgage industry, that took too long and on a large scale cost too much money. So they privatized it by creating the mortgage electronic registration system, a company headquartered in Reston, Virginia.

The sole purpose of MERS was to cut out the county clerk, allowing one mortgage company to quickly and electronically transfer a loan to another mortgage company.

On Tuesday, a spokeswoman told 17 News, MERS holds title to about 60% of the country’s home mortgages or about 32 million loans. MERS is basically an electronic handshake between banks, saying we have a deal.

But, MERS has turned into a headache for some lenders as homeowners across the country have successfully challenged the company’s legal standing in court. Others like Demucha are demanding their lender produce loan documents which may have been lost or even destroyed in the MERS shuffle.

“Why should the bank not still be required to possess a single piece of paper that they are the right place to home the consumer should make the payments?”

Earlier this month, a state appellate court agreed, overturning a Kern County judge’s ruling that Wells Fargo could foreclose on the home.

The case is headed back to our county where the same judge will have to decide if Wells Fargo can prove it legitimately holds title to the Demucha’s home.

“I wish I were David and they were Goliath. This would have been an easier fight. They are like an army of Goliaths and I’m like David with his hands tied behind his back,” said Demucha.

Wells Fargo spokesman Tom Goyda couldn’t comment on the specifics of this case but acknowledged the appellate court had sent the case back to the Kern County trial court to rule on several issues. Goyda noted the appeals court did not actually rule on the case and that Wells Fargo would continue to try the case in court.

A spokeswoman for MERS said her company said she couldn’t comment because they are not part of this lawsuit. Demucha and his attorney are basically asking for Wells Fargo to go away and to restore the couple’s credit.

“Wells Fargo essentially ignored them until the fifth district appellate court said Wells Fargo you can’t ignore Mark and Sherry Demucha any more,” said Finley.

The appellate court ruling has arrived back here in Kern County but a hearing has not yet been scheduled.

17 News Investigation: Homeowner challenges bank

29 Jul

17 News Investigation: Homeowner challenges bank.

pending lawsuits and homeowners winnning

29 Jul

Barry Fagan v Wells Fargo Bank and The Office of the Comptroller of the Currency (OCC) FOIA COVER-UP

http://www.scribd.com/doc/57585259/OCC-Letter-Re-Fagan-v-Wells-Fargo-Bank-Denial-of-Documents-through-FOIA

Ten pages are being withheld by the authority of the Privacy Act of 1974, 5 U.S.C. 552a (k)(2) and the Freedom of Information Act, 5 U.S.C. 552 (b)(8) and 12 C.F.R. 4.12(b)(8), relating to a record contained in or related to an examination,…

one west bank and the consent order with admissions of wrongdoing

29 Jul

One West Bank click to see full order from comptroller of the currency

standing

28 Jul

A. Standing

The party seeking to invoke federal jurisdiction has the burden of establishing standing.28

Constitutional standing analysis includes three elements: (1) the plaintiff must have suffered an

injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection

between the injury and the conduct complained of; and (3) it must be likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision.29

Beyond these three constitutional requirements,30 there are additional, prudential standing

limitations,31 including the requirement that a plaintiff must assert its own legal rights and

interests, and cannot rest its claim to relief on the legal rights or interests of third parties.32 One

cannot sue to protect the interests of another when the plaintiff’s only interest is a “byproduct” of

26 See Home Builders Ass’n, v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation and internal quotationmarks omitted).

 

the litigation.33 However, courts have generally held that a party in interest may assign its legal

claims to a third party, typically by a contract assigning its full and exclusive interest in a legal

claim to the assignee.34 The assignee may then bring suit in its own name on behalf of the party

in interest.35

AHMIS relies on Sprint Communications Co. v. APCC Services, Inc. to demonstrate its

standing. There, APCC Services aggregated the legal claims of approximately 1,400 payphone

operators who had claims against long-distance telephone carriers.36 When customers made a

call on a payphone using an access code or a 1-800 number, the provider of the access code or 1-

800 number paid the long-distance carrier a fee.37 The payphone operator could then seek

payment from the long-distance carrier for the use of its payphone, and, if the carrier did not pay,

the payphone operator could sue the carrier.38 Because pursuing these legal claims individually

could be prohibitively expensive, many payphone operators assigned their claims to aggregators,

like APCC Services, which collected the claims of payphone operators.39 If the suit was

successful, the aggregator turned over the award to the payphone operators and received a fee for

its services.40 The Supreme Court noted that the assignee’s contract with the payphone operators

contained clear language granting full and exclusive legal power to the assignee.41 Since the

33 Vt. Agency of Natural Res. v. United States (ex rel. Stevens), 529 U.S. 765, 772, 120 S. Ct. 1858, 1862 (2000)

(holding that a qui tam relator under the False Claims Act has Article III standing).

34 Sprint Commc’ns Co. v. APCC Servs. Inc., 554 U.S. 269, 284–85, 128 S. Ct. 2531, 2541 (2008) (holding that an

assignee of legal claims could bring suit for another even though the assignee had to forward all proceeds to that

third party and only received servicing fees).

35 Id. at 285, 128 S. Ct. at 2541–42.

36 Id. at 272, 128 S. Ct. at 2534.

37 Id. at 271, 128 S. Ct. at 2534.

38 Id.

39 Id. at 271–72, 128 S. Ct. at 2534.

40 Id. at 272, 128 S. Ct. at 2534.

41 The contract stated that each operator “assigns, transfers and sets over to [the aggregator] for purposes of

collection all rights, title and interest of the [payphone operator] in the [payphone operator’s] claims, demands or

causes of action for ‘Dial-Around Compensation’ . . . due the [payphone operator] for periods since October 1,

1997.” Id. at 272, 128 S. Ct. at 2534 (alteration in original).

Case 3:10-cv-01936-M Document 24 Filed 07/20/11 Page 6 of 11 PageID 182

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Supreme Court had long granted assignees standing to sue for third parties,42 and since APCC

Services was unmistakably an assignee, the Supreme Court held that APCC Services had

standing, despite the fact that it would forward any aggregated award to the payphone

operators.43

AHMSI also relies upon CWCapital Asset Mgmt., L.L.C. v. Chicago Props., L.L.C. In

CWCapital, the Seventh Circuit held that a contract giving a mortgage servicer “full power and

authority, acting alone” to initiate any action the servicer believed necessary may be construed as

giving the servicer “effective equitable ownership” to the legal claim.44 Although the contract at

issue lacked clear language assigning ownership of the legal claim, the Seventh Circuit construed

as an assignment the contract since it gave the servicer total and exclusive control over legal

claims, including the right to pursue any legal actions it deemed necessary, and the right to sue in

the mortgagee’s name without indicating its status as servicer. 45 The Seventh Circuit found the

servicer to be an “effective assignee.”

However, here AHMSI does not allege it is an assignee or effective assignee of the

mortgagees’ legal claims, nor does it allege or show that its contract with the mortgagees of

record made AHMSI an assignee or effective assignee.46 AHMSI asserts that it is “responsible

for the servicing of mortgage loans,” and that it “may be subject to liability if property entrusted

to its care is not returned.”47 Such an assertion merely implies that a contract exists between

42 Id. at 285, 128 S. Ct. at 2541.

43 Id. at 287, 128 S. Ct. at 2542–43.

44 610 F.3d 497, 501 (7th Cir. 2010).

45 Id. However, when a court determines that a contract was only meant to confer a power of attorney, the contract

will not suffice to give a third party standing under the assignee exception. See W.R. Huff Asset Mgmt. Co. v.

Deloitte & Touche, L.L.P., 549 F.3d 100, 108 (2d Cir. 2008).

46 See, e.g., Lear Siegler Servs. v. Ensil Int’l Corp., No. SA-05-CV-679-XR, 2009 WL 3297975, at *4 (W.D. Tex.

Oct. 13, 2009) (dismissing a case for lack of jurisdiction where plaintiff failed to provide a contract showing an

assignment had been made).

47 Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 7.

Case 3:10-cv-01936-M Document 24 Filed 07/20/11 Page 7 of 11 PageID 183

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AHMSI and the mortgagee, but does not create a reasonable inference that AHMSI is an

assignee or an effective assignee of the mortgagees’ legal claims.

AHMSI argues that HUD must either process insurance claims submitted by AHMSI or

return collateral to AHMSI since AHMSI is “the party that dealt with [HUD] throughout the

administrative process.”48 However, the NHA and its accompanying regulations define HUD’s

responsibilities, and the regulations state that the FHA Commissioner “shall have no obligation

to recognize or deal with any party other than the mortgagee of record with respect to the rights,

benefits and obligations of the mortgagee under the contract of insurance.”49 While the NHA

allows for the assignment of insured mortgages, it does not require the FHA to enter into a legal

or any other type of relationship with an assignee. The FHA Commissioner retains the right to

deal with the mortgagee alone.

The regulations allow mortgagees to employ mortgage servicers. However, the

regulations make clear that the mortgagee “shall remain fully responsible to the Secretary for

proper servicing, and the actions of its servicer shall be considered to be the actions of the

mortgagee.”50 Further, such assignment of servicing does not amount to assignment of the

mortgagee’s right to pursue legal claims against HUD or its Secretary.

AHMSI does not allege or prove that it is an assignee, that its contract with the

mortgagee amounts to an effective assignment, or that the NHA and its accompanying

regulations require HUD to recognize AHMSI as such. In light of those failures, AHMSI has not

proven it has standing.

Is the notary responsible or at least negligent or at least negligent per se !!!

28 Jul

(1) Notaries Public § 1–Disciplinary Proceedings–Time for Instituting.

Disciplinary action taken by the Secretary of State against a notary public was not barred by the fact that the proceeding was instituted more than three years after the notary’s alleged improper act and more than one year after its discovery. Statutes of limitation barring civil actions brought by aggrieved parties are inapplicable to a disciplinary proceeding of a state administrative agency and there is no specific time limitation statute pertaining to the revocation or suspension of a notary’s commission.

(2a , 2b) Notaries Public § 1–Disciplinary Proceedings–Suspension of Commission–Failure to Faithfully Perform Duties–Gross Negligence.

The Secretary of State properly suspended the commission of a notary public under Gov. Code, § 8214.1, subd. (d), for failure to fully and faithfully perform her duties as a notary public in that she had certified the personal appearance and acknowledgment of a man who in fact did not appear before her. The notary’s attempted characterization of her error as “clerical” was unavailing since she had completely failed to read the certificate before signing it. Such failure was gross negligence and consequently a failure to faithfully perform her notarial duty as a matter of law.

[See Cal.Jur.3d, Notaries Public and Commissioners of Deeds, § 5; Am.Jur.2d, Notaries Public, § 13.]

(3) Statutes § 44–Construction–Aids–

Contemporaneous Administrative Construction.

Though the ultimate interpretation of a statute is a judicial function, a court must accord great respect to the views of the expert administrative body charged with enforcing a particular statute.

(4) Notaries Public § 1–Disciplinary Proceedings–Suspension of Commission–Failure to Maintain Records.

The Secretary of State properly imposed a one-month suspension of a notary public’s commission (to run concurrently with another suspension) for failure to maintain a record of transactions as required by former Gov. Code, § 8206. Retention by the title company that employed the notary of photographic copies of the instruments she certified in a file to which she had access was not a substitute for her obligation to personally maintain separate records. Reasonably interpreted, the former statute required a readily accessible, separate log of official transactions by date rather than the mere retention of photographic copies of all instruments certified or proved.

The securitization argument a year later

28 Jul

SEPARATION OF DEED OF TRUST FROM NOTE: Bellistri Opinion

Posted on April 28, 2010 by Neil Garfield

There is a lot of conflicting opinions about this. My opinion is that the confusion arises not from the law, not from application of the law and not from what is written on the note or deed of Trust. If you look at the Bellistri Missouri case the issue is well settled. And the problem is not what is written, it is what is assumed to be written. The Bellistri case, 284SW 3d 619, (Missouri Appeal, cert. reportedly denied) coupled with its quote from Restatement 3rd is simple: put one name on the note and another on the DOT as beneficiary (particularly when the beneficiary is MERS and therefore an undisclosed principal) and you have direct evidence that the intention of the parties was to separate the note from the mortgage. The burden of proof thus shifts to the alleged creditor.

Conflict comes not from the law or the wording on the instruments but from the inherent question of “why would anyone want to do that?” There are of course many answers to that question in a securitized mortgage context. But it is the existence of the question that causes people to lean toward the idea that no reasonable person would have intended that and to assume that the parties, including the borrower, would never have intended WHAT WAS WRITTEN.

I think the point of the Bellistri case is simple: factually, the note and DOT are split and according to the Restatement 3rd, they can never be put back together again. The note, while still enforceable as an instrument by itself, is no longer secured by an encumbrance on the property. The “mistake” is that of the drafter of the instruments. They want to say, much later in time, what we NOW mean is that the beneficiary is X, who is not the payee on the note,, but X has received an assignment of the note. Thus NOW the beneficiary and the payee are the same which means we can foreclose.

So the question put to the Judge is can a note and security instrument, initially made out to two different parties be LATER joined and if so, what does that mean for enforcement. My first comment is that once you have established that facially the note and DOT were split, your prima facie case is met and the burden goes to the “lender” to prove they are the creditor along with a whole bunch of other things that are not unlike the elements of proving up a lost or destroyed note. You can’t just say it happened. You must explain and prove HOW it happened.

But the simple answer to the question as per the Restatement 3rd, is “NO.” The reason why they cannot be joined later is not just because Restatement 3rd says so, it is the reason Restatement 3rd says that, to wit: if you allowed, particularly in a non-judicial setting, parties not named on the note and not named as beneficiary to later act because of a claim as being both, you are introducing uncertainty into the marketplace which is the precise reason we have the law of contracts, property records and such. The moral hazard is raised from possibility to near certainty when you KNOW from the beginning that the payee and the beneficiary are two different parties and the beneficiary is not the real party so the knowledge includes, from the beginning, that there is at least one additional undisclosed party.

Let’s take the simplest example we can given the complexity of securitized residential mortgages. ABC is named the Payee on the note. MERS is named the beneficiary. MERS obviously has some understanding with a third party DEF not to make a claim on the loan (according to their website). So we must presume that they have that understanding and that maybe it is in writing in some general type of contract which was neither disclosed nor revealed to exist at the time of the closing with the borrower. DEF defaults in its payment obligations to MERS. MERS now says we refuse to perform under our contract with DEF. Borrower knows nothing of DEF nor of DEF’s payment default to MERS. Borrower pays the note in full to ABC. ABC returns the note as paid in full. Borrower wants a release and reconveyance (satisfaction) so the title record is clear.

Now it MIGHT be that DEF=ABC. But we don’t know that. So for purposes of your case, you MUST assume that DEF is simply an undisclosed third party. Borrower asks MERS for the release and reconveyance.  MERS refuses because it wasn’t paid by DEF and because it has no idea whether you paid the right person. With MERS refusing to execute a document releasing the lien, Borrower now has a defect in title that is unmarketable.

Borrower files a quiet title suit against MERS. MERS says it was named as beneficiary but that the DOT clearly states it serves only as nominee and therefore has no power to do anything. Now you have, on record, that the beneficiary is not MERS but the undisclosed third party DEF. The court MIGHT grant the final judgment, but it would then be adjudicating the rights of other parties who are not present in court, thus leaving the title clouded and possibly still unmarketable.

Another possibility is that the Court would inquire or allow discovery to allow the identification of DEF. Assuming MERS wishes to comply, there is still a problem. Data entry is NOT performed by MERS employees. Data entry is performed by “members” with passwords and user ID’s. Thus all MERS can say is that at a particular point in time MERS computer records show DEF, which was assigned to ABC or perhaps yet another party. The assignment is executed by Jane Jones as “limited signing officer” for MERS. MERS can’t say they know Jane Jones or anything about her because she doesn’t work for MERS. Therefore the only competent evidence from MERS is the data in fields populated by unknown sources of data input, and references to documents that were never seen or kept by MERS. The evidence from MERS thus has little or no probative value.

So now the Court or borrower goes to DEF and says “Who is Jane Jones?” DEF replies they don’t know because the assignment document was prepared by a foreclosure processing firm in Jacksonville, Florida named DOCX. DOCX has no contract with ABC or DEF or MERS. They were just following orders from yet a fourth party who is unidentified, and whose instructions were relayed through a fifth firm that serves as the correspondent or document manager once the loan goes into foreclosure (perhaps ordered by the servicer, BAC).

Thus the reason that a note and DOT can never be joined at any time other than the creation of those documents and executed contemporaneously with the funding of the obligation is that the contract and its performance is not based upon a condition subsequent (because such a condition would render the contract inchoate until the condition subsequent arrived or which would extinguish the obligation, note and mortgage). For there to be enforceability there must be certainty in the contract. Certainty can only be achieved if the terms and parties who are expected to perform are identified with sufficient clarity that any reasonable person would say they are known.

A borrower who signs papers without having a known party who is required by law to execute a satisfaction (release and reconveyance) has in effect executed documentation without a counterparty. The document is therefore void. Since the document (note, DOT, etc.) is only evidence of the obligation that arose because the borrower did in fact receive a benefit from the funding of the loan, the obligation survives while the note and/or DOT do not. However, in order to achieve certainty in the marketplace, the obligation is not secured unless and until some party identifies itself as the creditor and establishes a subsequent encumbrance through judgment lien, equitable or constructive trust or some other means.

Such a creditor action would be subject to rigorous requirements of pleading and proof. In the context of a securitized residential mortgage, the creditor can only be the party(ies) who advanced actual money, from which money the borrower’s loan was funded. In the context of mortgage-backed securities, a creditor who pleads that he expected a secured loan, must also plead all the documents and transactions that gave rise to advancing the money. This would mean that the creditor would be required to disclose and account for credit enhancements, insurance, credit default swaps, over-collateralization, cross-collateralization, and payments received from all sources pursuant to the terms under which the creditor advanced said funds.

Those terms are included in the prospectus and bond indenture which incorporate the pooling and service agreement, Depositor Agreement, Assignment and Assumption Agreements etc. In other words, the actual terms upon which the creditor advanced money were different from the actual terms accepted by the borrower. A court in equity would thus be required to allocate equity and liability for the various unpaid and paid obligations of multiple parties whose existence was unknown to borrower at the time of the loan closing, and whose existence even now would be at best dimly understood by the borrower or any other person who was not extremely well-versed in the securitization of credit.

MERS and invalid assignments

26 Jul

Brand New, Hot Off The Presses MERS Policy Bulletin

July 24th, 2011 | Author:

After years of claiming that assignments don’t matter and the date of assignment certainly doesn’t matter, the MERS Monster has finally changed its tune, effective July 21, 2011:

The Certifying Officer must execute the assignment of the Security Instrument from MERS before initiating foreclosure proceedings or filing Legal Proceedings and promptly send the assignment of the Security Instrument for recording in the applicable public land records

Well, harumph says I…what of all those damn post filing assignments?  What about all them specious arguments made in courtrooms all across this country that said the date of assignment didn’t matter?  What about the absurd argument that an “equitable assignment” had already occurred? (despite the fact that neither the pooling and servicing a agreement nor law permit such assignments)  For foreclosure cases already adjudged this is problematic and for all those hundreds of thousands still pending, this change in policy is exhibit #1 in the argument that a post filing assignment cannot confer standing.

This certainly ain’t “Ding Dong The Witch Is Dead”, it’s just another stanza in “Humpty Dumpty Sat on A Wall”

And all the kings horses and all the kings men couldn’t put Humpty Dumpty back together again.

Humpty Dumpty is our real property recording system that was developed over hundreds of years in this country.  A key read is Hernando Desoto’s “The Mystery of Capital” for a long explanation that our country’s success is tied largely to our real property record system that has been completely obliterated in just a few short years by all this mortgage madness.  What is most astonishing (and the biggest indictment of the whole MERS madness) is the fact that no law, legislation or court decision was ever rendered to justify the MERS system prior to its widespread implementation.  It was merely spread all across this country like a virulent virus that was transmitted and lay dormant in the property records impacting millions of homes all across America.

MERS Policy Bulletin

Been evicted and need more time ??Appeals from UD actions are governed by CCP §§901–923. [See CCP §1178; Anchor Marine Repair Co. v Magnan (2001) 93 CA4th 525, 528–530.]

23 Jul

Stay of Execution and Appeal

The defendant may request a stay of execution of the judgment whether or not an appeal is taken. [CCP §918(a), (c).] You may stay execution of the judgment for up to 40 days without the landlord’s consent in a limited civil case (or up to 70 days in an unlimited case). [See CCP §918(b); CRC 8.104(a), 8.822.] It is a common practice in some courts to require a tenant claiming hardship to pay into court the daily rental value for the length of the stay. [See CCP §1176(a).]

Related procedures govern stays of unlawful detainer judgments pending appeal. The following conditions apply [CCP §1176(a)]:

  • There is no automatic stay on appeal.
  • A request for a stay must first be directed to the judge who rendered the judgment.
  • A stay must be granted if the judge finds that (1) the moving party will suffer extreme hardship if no stay is granted and (2) a stay will not irreparably injure the nonmoving party.
  • Denial of a stay is reviewable by writ.
  • Any stay is subject to any conditions the court deems just.
  • Any stay must be conditioned on payment of the reasonable monthly rental value to the court each month in advance.

Appeals from UD actions are governed by CCP §§901–923. [See CCP §1178; Anchor Marine Repair Co. v Magnan (2001) 93 CA4th 525, 528–530.]

 

Possible Counter-Attack in Unlawful Detainer (Eviction) in Fraudulent Foreclosure Cases (via Livinglies's Weblog)

22 Jul

Possible Counter-Attack in Unlawful Detainer (Eviction) in Fraudulent Foreclosure Cases MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE factual issues for Unlawful Detainer case NFG 7-15-11 Various states have two levels of  jurisdiction that make it difficult to raise the proper issues in eviction even if there has been no preceding judicial action or if the preceding judicial action has been predicated on fraudulent evidence proffered and accepted by the court. I ended up working on the issue and it … Read More

via Livinglies's Weblog

FREE HOUSE MYTH DEBUNKED BY PORTER AND LEVITIN (via Livinglies's Weblog)

22 Jul

FREE HOUSE MYTH DEBUNKED BY PORTER AND LEVITIN MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE The Free House Myth posted by Katie Porter As challenges to whether a "bank" (usually actually a securitized trust) has the right to foreclose because it owns the note and mortgage become more common, rumors swirl about the ability to use such tactics to get a "free house." There are a few instances of consumer getting a free house, see here and here, for examples, but … Read More

via Livinglies's Weblog

BOA Feeling the Heat is Striking Back at Foreclosure Defense Lawyers as Lawsuits are Filed Against Firms Who Represent BOA (via Livinglies's Weblog)

22 Jul

BOA Feeling the Heat is Striking Back at Foreclosure Defense Lawyers as Lawsuits are Filed Against Firms Who Represent BOA MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: The battle is heating up. BOA, for example, is stepping up efforts to cause as much trouble as possible for those foreclosure defense lawyers who are getting traction in the courts. This started some time ago as some people were actually indicted for using tactics that were essentially the identical to the bogus filings of the pretenders. The indictments … Read More

via Livinglies's Weblog

Robo-signing continues without consequences (via Livinglies's Weblog)

22 Jul

Robo-signing continues without consequences MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE No Punishment = Continued Misconduct Posted on July 19, 2011 by Mark Stopa Esq. http://www.stayinmyhome.com/blog/?p=1565 In Maine, a group of drug dealers was caught distributing drugs to local middle schoolers. They confessed, yet the District Attorney declined to press charges, so the drug dealers returned to the school and passed out more drugs. In Kansas, police ap … Read More

via Livinglies's Weblog

Cloud on title forever post foreclosure {but wait the Banks own the title companies}

17 Jul

Recently Discovered Flaw in Recording System Clouds Titles on Previously

Foreclosed Properties

 

The modern system of mortgage refinancing and assignments created during the housing boom has left behind a wave of title defects on properties that have ever had a foreclosure in their history, due to a loophole in the property records recording system. This has been detected on a number of properties currently in foreclosure, and found to have been uncorrected on properties previously foreclosed.

 

(PRWEB) February 10, 2010 — A previously undetected title flaw has been discovered on many previously foreclosed properties. As the number of real estate foreclosures skyrockets, the odds are higher that a home you live in today, or at some point in the future may have had a foreclosure in its history. Even if the foreclosure has long since passed, a loophole in the way mortgages are recorded can create a serious title defect for future owners. Title analysis performed this month by AFX Title has detected this error to be common in random samples of properties it reviewed. “This could affect the property ownership of millions of homes nationwide” said David Pelligrinelli, of AFX Title. “The mortgage recording method which created this title flaw did not exist until

recently. As title abstractors are just seeing this problem emerge now but a wave of title claims is coming over the next year or so.”

 

The problem is created through a break in the chain of mortgage ownership. Until the 1980’s, most mortgages were loans between the homeowner and a bank, who lent the money directly. More recently, the mortgage financing system transformed into an international system of securitization, with mortgage lenders packaging their loans into securities, bought and sold by investors like stocks. These transactions even split individual mortgages into sections, where each loan could have parts owned by different investment banks.

 

The transfer of ownership in these mortgage backed securities (MBS) was done with contracts on the balance sheets of Wall Street investment banks, such as Morgan Stanley and Goldman Sachs. The company who originally appeared to make the loan was normally a retail lending company such as Countrywide or Lending Tree, who typically acted as a sales company, and sometimes remained contracted to service the loan. In the event that the loan goes into foreclosure at a later date, the then-current owner of the loan files the foreclosure and sells the property to a new owner, often at auction. The land records would show a deed of transfer from the investment bank to the new owner. This creates a break in the chain of ownership of the mortgage rights. In many cases, the transfer of ownership of the mortgage loan has gone from the original lender, through several owners, and then to the foreclosing bank, none of which is recorded on the property title history.

 

Technically, the foreclosing bank has no recorded title rights to foreclose in the first place. Owners of the loan normally do not publicly record each of the transfers out of expediency, and cost. Filing a document of transfer (called an assignment) in the land records incurs a substantial fee paid to the county clerk.

 

Some delinquent homeowners have used this error to delay the foreclosure, forcing lenders to “produce the note.” In these cases, the bank has to go through the process of getting assignments to the foreclosing bank after the fact. However, the title repair process is not required however in the majority of cases when the homeowner does not

contest the foreclosure.

 

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This leaves the break in chain of title dormant in the property records, vulnerable to be contested in the future. A few largely overlooked cases have already been decided by courts on this issue. In Lowell MA, a judge invalidated the foreclosure of homes based on missing and out-of-order assignments (US Bank v Ibanez).

 

Unraveling the chain of title and clarifying ownership of loans will create challenges for the courts and legislative bodies in all states. In the meantime, homeowners and buyers should be aware of how this could affect their property title. There are reports that some title insurers are indicating that they will not insure for this title defect.

 

As a national provider of property title searches, AFX Title is seeing an increasing number of files where the chain of title has obvious gaps in the recorded mortgage assignments. According to Pelligrinelli, the issue is serious. “When running searches for clients, we are noticing that a significant number of previously foreclosed properties have unconnected chain of assignments in the mortgage history. This could represent a title defect which could technically affect ownership rights for future owner.”

 

Pelligrinelli adds that some lenders and government institutions are rushing to repair the titles on lender-owned properties as they discover them in their portfolio. This does not help individual owners who own properties previously foreclosed.


 

assingmment please?? 2932.5 with a side of Veal

15 Jul

The brief below as circulated by the California Bar’s: Insolvency Law Committee:
Herrera vs. Deutsche Bank National  Trust Co.,  2011 Westlaw 2547979 (Cal.App.)

 

Facts: A married couple  (“the homeowners”) purchased a home at a foreclosure sale.  Supposedly,  unbeknownst to them, their interest in the home was subject to a prior (and  perhaps unrecorded) deed of trust that never appeared in their title  search.  After a series of assignments, a lending institution conducted  a non-judicial foreclosure sale under that prior unrecorded deed of  trust.  Supposedly, the homeowners never received notice of the sale.  The lender entered a successful credit bid; the trustee issued a trustee’s  deed in favor of the lender.  When the lender later asserted its title,  the homeowners brought suit, seeking to set aside the sale on the ground that  the lender never owned the underlying note or the trust deed and therefore  could not conduct a proper sale.

 

The lender and the trustee brought a motion for summary judgment, claiming  that properly-recorded documents showed that the trust deed had been assigned  to the lender.  The trial court granted summary judgment for the lender.

 

Reasoning:  The appellate  court reversed, holding that the lender had not made a competent evidentiary  showing in opposition to the homeowners’ motion for summary judgment.   The lender argued that the trial court properly took judicial notice of the  recorded assignment.  But the court distinguished between judicial  notice of the recorded document and its contents, holding that the lender  could not show that it was really the beneficiary under that deed of  trust.

 

The lender claimed that a declaration filed by an employee of the trustee had  established the truth of the facts contained in that assignment, which were  thus covered by the “business records” exception to the hearsay  rule.  The court disagreed:  “The records used to generate the  information in the Assignment . . . were undoubtedly records not prepared by [the  trustee] but records prepared by [the lender’s predecessors in interest.]  [The lender has] not shown how [the employee] could have provided information  about the source of that information or how those documents were  prepared.”

 

For the moment, let’s disregard the strange factual predicate, where someone  buys a property subject to an undisclosed deed of trust and gets no notice of  a subsequent foreclosure.  (That doesn’t happen very often.)  The  really alarming part of this opinion is the disqualification of the remote  assignee’s employee as a party who can properly authenticate the business  records that were generated by remote assignors.  If that rule is  universally true, how can the subsequent transferees ever establish a chain  of title, especially where the remote assignors are defunct entities (and  their former employees are scattered to the winds)?  And if that chain  can’t be competently established, does that mean that a homeowner threatened  by foreclosure can now bring a timely action for injunctive relief, on the  theory that the foreclosing creditor lacks the authority to do so? A fortiori, if such a claim can be  brought to overturn a completed sale, it ought to be cognizable in order to  halt a pending sale.

 

Note that the issue in this case (the lack of an evidentiary foundation for  the assignment of the deed of trust) is subtly different from the one in the  Ninth Circuit BAP’s recent opinion in In  re Veal, — B.R. —-, 2011 WL 2304200, (9th Cir. BAP (Ariz.)).   That case dealt with the problem of the assignment of a mortgage without the  assignment of the underlying note.  (For a complete discussion of Veal, see 2011 Comm. Fin. News. 52, Purported Assignee  of Mortgage Lacks Standing to Obtain Relief from Automatic Stay Because  Assignment Transferred Mortgage Without Underlying Note.)

 

More significantly, I think that the holding in Herrera, a California state appellate opinion, may  conflict with or undermine such cases as Ferguson  v. Avelo Mortg., LLC, 2011 WL 2139143 (Cal. App. 2d Dist. 2011),  opinion modified, 2011 WL 2438948 (Cal. App.), and Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th  1149, 121 Cal. Rptr. 3d 819 (4th Dist. 2011), review denied, (May 18, 2011).  (For a discussion of Gomes, see  2011 Comm. Fin. News. 18,  Borrower Cannot File Suit to Determine Whether MERS Has Authority to Commence  Foreclosure, and Trust Deed Expressly Authorized MERS to Do So.)  After  all, if the recorded assignment can no longer be taken at face value under Herrera, how can we simply assume that  the nominal assignee is really the proper party to pursue the foreclosure?

Ask for a 402 hearing and then dissmiss the eviction !!!

10 Jul

If the court follows the rules of evidence (and they do) if proper objections are filed. No eviction of a secuitized loan should ever prevail on an eviction; they cannot produce the foundation to authenticate the Trustees Deed it is based upon preliminary facts that they are unable and unwilling to bring to court. The Assignments Civil code 2932.5 , The Servicer, The Accounting, The Trustee, MERS, The Robo signer, The person that purportedly contacted the Borrower Trustor, The compliance documents with Civil Code 2924, all these are preliminary facts upon which the admission of the Trustees Deed depend Evidence code 400,401,402,403. Check out this motion !!

Timothy L. McCandless, Esq.  (SBN 147715)

LAW OFFICES OF TIMOTHY L. MCCANDLESS

Attorney for Defendant,

SUPERIOR COURT OF CALIFORNIA

IN AND FOR THE COUNTY OF SOLANO

SOLANO COURT/ LIMITED JURISDICTION

FANNIE MAE et al,

Plaintiff,

v.

Defendant.

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)Case No.:

 

DEFENDANT’S IN LIMINE MOTION TO EXCLUDE ALL EVIDENCE (RE:FACIALLY INVALID DEED OF TRUST)

TRIAL DATE:  Tues., June 15, 2010 ) 

To the Court, to Plaintiff FANNIE MAE, and its attorney of record:

            PLEASE TAKE NOTICE that, on Tuesday, June 15, 2010, at 8:30 AM, or as soon thereafter as the matter may be heard, Defendant, MICHELLE CABESAS, will in limine judicii move the court, and hereby does move, for an order excluding from trial all evidence proffered by Plaintiff FANNIE MAE.

          The motion will be heard in Department  26, at 1:30 p.m. in front of the Honorable Judge Davis  of the Solano Court of the above-captioned court.

The motion will be brought pursuant to Evidence Code sections 353 and 400 et seq., Code of Civil Procedure section 430.10(b), and related decisional law.

The ground of the motion will be that the Unlawful Detainer Complaint, together with the publicly-filed “Deed of Trust” that is necessarily incorporated into it, is facially invalid because the  Beneficiary did not have the power of sale. Such irregularities should constitute sufficient grounds to set aside the entire non-judicial foreclosure process. Therefore, the Trustee’s Deed After Sale should not be admitted as no lawful basis exists for its execution. Additionally, the Notice of Default, and Notice of Default Declaration should be excluded.

The failure of Plaintiff and/or Plaintiff’s agent to perform a condition precedent pursuant to Civil Code Section 2923.5 is fatal. The Notice of Default Declaration fails is several regards, (1) the language of the Notice does not comply with the statute because it does not set forth facts of how the statute was performed; (2) the Declaration is not sworn under penalty of perjury; (3) the only date of the Declaration is the date of execution which is one day prior to the Notice of Default which was recorded only five days later, thus, thirty days did not pass from the date of execution of the Declaration and the date of recordation. As such, under Section 2923.5, the Notice of Default Declaration is void and could not support the recordation of the Notice of Default.  Because the non-judicial foreclosure process is subject to strict scrutiny, and given the material failure of a condition precedent by Plaintiff and/or Plaintiff’s agent, the entire non-judicial foreclosure process is invalid.  Therefore, the Trustee’s Deed After Sale cannot be admitted into evidence, as no lawful foundation can be laid.

//

DATED:  June 14, 2010.                  ________________________________________

LAW OFFICES OF TIMOTHY L. MCCANDLESS

By: Timothy P. McCandless, Esq.

Attorney for Defendant,

MEMORANDUM OF POINTS AND AUTHORITIES

I.

FACTUAL BACKGROUND

The court’s records for this case will show that Plaintiff FANNIE MAE filed its Complaint on or about  August 4, 2009.   The apparent foreclosing beneficiary was plaintiff, FANNIE MAE.  [See attachment to Unlawful Detainer Complaint entitled “Trustee’s Deed Upon Sale.”]

This motion ensued in its present form, because sufficient time did not remain before trial, in order to permit Defendant CABESAS to bring a regularly-noticed general demurrer or “motion for judgment on the pleadings”.

II.

THE COURT HAS POWER TO EXCLUDE ALL EVIDENCE FROM TRIAL, ON GROUNDS ANALOGOUS TO A GENERAL DEMURRER.

            The court has power to consider and grant an objection to all evidence under Evidence Code sections 353 and 400 et seq.  If no cause of action or defense is stated by the respective pleading, then no “factual issue” any longer exists, and therefore no evidence may be admitted on grounds of “relevance” under Evidence Code sections 400 et seq.

It is well established that a party may bring an in limine objection in order to exclude all evidence, as a sort of general demurrer or “motion for judgment on the pleadings”.  “Although not in form a motion, this method of attacking the pleading is identical in purpose to a general demurrer and motion for judgment on the pleadings and is governed by the same rules.  [Citations.]”  5 WITKIN, Cal.Proc.3rd page 386, “Pleading” at §953.  See also 6 WITKIN, Cal.Proc.3rd pages 571-573, “Proceedings Without Trial” at §§272-273.

According to 5 WITKIN, Cal.Proc.3rd page 340, “Pleading” at §899, a “general” demurrer concerns only the defense that the pleading does not state facts sufficient to constitute a cause of action or defense.  That is precisely what defendant contends here: the Unlawful Detainer Complaint fails to state a claim for which relief may be granted.

III.

THE COURT MUST STRICTLY ENFORCE

THE TECHNICAL REQUIREMENTS FOR A FORECLOSURE.

            The harshness of non-judicial foreclosure has been recognized. “The exercise of the power of sale is a harsh method of foreclosing the rights of the grantor.” Anderson v. Heart Federal Savings (1989) 208 Cal.App.3d 202, 6 215, citing to System Inv. Corporation v. Union Bank (1971) 21 Cal.App.3d 137, 153.  The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of his property Moeller v. Lien (1994) 25 Cal.App.4th 822, 830; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 503; Lo Nguyen v. Calhoun (6th District 2003) 105 Cal.App.4th 428, 440, and a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.179; Anderson v. Heart Federal Sav. & Loan Assn., 208 Cal. App. 3d 202, 211 (3d Dist. 1989), reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Bisno v. Sax (2d Dist. 1959) 175 Cal. App. 2d 714, 720.

It has been a cornerstone of foreclosure law that the statutory requirements, intending to protect the trustor from a wrongful or unfair loss of the property, must be complied with strictly. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.182.   “Close” compliance does not count. As a result, any trustee’s sale based on a statutorily deficient Notice of Default is invalid (emphasis added). Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.182; Anderson v. Heart Federal Sav. & Loan Assn. (3dDist. 1989) 208 Cal. App. 3d 202, 211, reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Saterstrom v. Glick Bros. Sash, Door & Mill Co.(3d Dist. 1931) 118 Cal. App. 379.

Additionally, any trustee’s sale based on a statutorily deficient Notice of Trustee Sale is invalid.  Anderson v. Heart Federal Sav. & Loan Assn. (3d Dist. 1989) 11 208 Cal.App. 3d 202, 211, reh’g denied and opinion modified, (Mar. 28, 1989). The California Sixth District Court of Appeal observed, “Pursuing that policy [of judicial interpretation], the courts have fashioned rules to protect the debtor, one of them being that the notice of default will be strictly construed and must correctly set forth the amounts required to cure the default.” Sweatt v. The Foreclosure Co., Inc. (1985 – 6th District) 166 Cal.App.3d 273 at 278, citing to Miller v. Cote (1982) 127 Cal.App.3d 888, 894 and SystemInv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-153.

The same reasoning applies even to a notice of a trustee’s sale.  Courts will set aside a foreclosure sale when there has been fraud, when the  sale has been improperly, unfairly, or unlawfully conducted, or when there has  been such a mistake that it would be inequitable to let it stand. Bank of America Nat. Trust & Savings Ass’n v. Reidy (1940) 15 Cal. 2d 243, 248; Whitman v. Transtate Title Co.(4th Dist. 1985) 165 Cal. App. 3d 312, 322-323; In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1228.  See also Smith v. Williams (1961) 55 Cal. 2d 617, 621; Stirton v. Pastor (4th Dist. 1960) 177 Cal. App. 2d 232, 234; Brown v. Busch (3d Dist. 1957) 152 Cal.App. 2d 200, 203-204.

If somehow these foreclosing predecessor-in-interest can establish this standing, or right, to extrajudicially foreclose, still it should be prevented from pursuing this eviction action, because such an action, if successful, would result in a wrongful foreclosure, due to the predecessor-in-interest’s exercise of a non-existent extrajudicial power.

IV.

PLAINTIFF, OR PLAINTIFF’S PREDECESSOR-IN-INTEREST,

DID NOT HAVE THE RIGHT TO EXTRAJUDICIALLY FORECLOSE

The foreclosing predecessor-in-interest simply did not have the right to foreclose under the subject trust deed, because the notice of default  facially invalid.

The reason why the security instrument is not valid, is because it is facially void        !  A copy of the subject trust deed – a public record!! — is attached hereto.  Further, the trueness of the copy is readily verifiable, since it is a publicly-recorded document.  Clear as daylight, contact with the trustor 30 days prior to the notice was imjpossible. The was no lender MERS is not a lender Plaintiff  did not get the assignment  till 7/8/2009  . The notice of default was recorded 7/31/2009 only 23 days after the assignment.

A trust deed adds a third party, of sorts, namely the beneficiary.  It has been observed that a trust deed naming a purely fictitious person as beneficiary may be void.  Woodward v. McAdam (1894), 101 Cal. 438.  It has been held that a trust deed might be void for uncertainty, where the deed of trust does not name or describe any of the beneficiaries, but only classified them by reference to a common attribute.  Watkins v. Bryant (1891), 91 Cal. 492.  There seems to be no common-sense reason why the same principle should not apply to the designation of the grantee/ trustee, even were the law of deeds not generally applicable to trust deeds.

Beneficiary did not have the power of sale. Such irregularities should constitute sufficient grounds to set aside the entire non-judicial foreclosure process. Therefore, the Trustee’s Deed After Sale should not be admitted as no lawful basis exists for its execution. Additionally, the Notice of Default, and Notice of Default Declaration should be excluded.

The failure of Plaintiff and/or Plaintiff’s agent to perform a condition precedent pursuant to Civil Code Section 2923.5 is fatal. The Notice of Default Declaration fails is several regards, (1) the language of the Notice does not comply with the statute because it does not set forth facts of how the statute was performed; (2) the Declaration is not sworn under penalty of perjury; (3) the only date of the Declaration is the date of execution which is one day prior to the Notice of Default which was recorded only five days later, thus, thirty days did not pass from the date of execution of the Declaration and the date of recordation. As such, under Section 2923.5, the Notice of Default Declaration is void and could not support the recordation of the Notice of Default.  Because the non-judicial foreclosure process is subject to strict scrutiny, and given the material failure of a condition precedent by Plaintiff and/or Plaintiff’s agent, the entire non-judicial foreclosure process is invalid.  Therefore, the Trustee’s Deed After Sale cannot be admitted into evidence, as no lawful foundation can be laid.

CONCLUSION

          The Plaintiff’s entire case rests upon the “facial” or “on the public record” legitimacy of the extrajudicial foreclosure by its predecessor-in-interest.  The foreclosure was facially void.  The case should be dismissed, upon the court’s determination that no factual “issue” remains.

Respectfully submitted,

DATED:  June 14, 2010             _______________________________________

LAW OFFICES OF TIMOTHY L. MCCANDLESS

By: Timothy P. McCandless

ATTORNEY FOR DEFENDANT

FINALLY! BOA FACES CLAIMS FOR BOGUS MODIFICATION ACTIONS (via Livinglies's Weblog)

8 Jul

FINALLY! BOA FACES CLAIMS FOR BOGUS MODIFICATION ACTIONS MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: Anyone who has entered into mortgage modification process with BOA or any other bank acting as servicer or otherwise knows the story. The Bank does everything it can to delay the process until the borrower gets into serious trouble and then the bank claims that the home should be foreclosed. There are thousands of stories of homeowners who honestly and j … Read More

via Livinglies's Weblog

AZ: TRUSTEE CAN BE SUED IF SUBSTITUTION WAS INVALID (via Livinglies's Weblog)

8 Jul

AZ: TRUSTEE CAN BE SUED IF SUBSTITUTION WAS INVALID MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE JUDGES ARE STARTING TO EXAMINE DOCUMENTS AND THEY DON'T LIKE WHAT THEY ARE SEEING "Thus, while A.R.S. §33-807(E) may operate to dismiss a trustee in certain instances, if one of the allegations of a complaint is that the entity purporting to act as trustee has not been legally appointed as trustee, this statute would not come into play." BOTTOM LINE: IF THE SUBSTITUTIO … Read More

via Livinglies's Weblog

WEIDNER: IT'S THE ALLONGE!!! (via Livinglies's Weblog)

8 Jul

WEIDNER: IT'S THE ALLONGE!!! MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE The Allonge- Billions of Dollars in Commerce Hangs on A Single Scrap of Paper EDITOR'S NOTE: If you wrote a check to your next door neighbor, you would expect that he would either cash it or deposit it. But what if your neighbor did business with another neighbor and gave them a copy of your check along with a piece of paper they called an allonge or assignment. So now … Read More

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Judicial Notice ?? not so fast

7 Jul
 All banks love to use judicial notice to establish their position but with all the robo signing the evidence is being excluded.

ROBERT HERRERA et al., Plaintiffs and Appellants,
v.
DEUTSCHE
1
BANK NATIONAL TRUST COMPANY et al., Defendants and Respondents.
No. C065630.
 Court of Appeals of California, Third District, El Dorado.Filed May 31, 2011.
NOT TO BE PUBLISHED
 MURRAY, J.
SUMMARY
 Plaintiffs Robert and Gail Herrera lost their house in South Lake Tahoe to a nonjudicial foreclosure sale.They brought suit to set aside that sale. They challenge whether the parties that conducted the sale,defendants Deutsche Bank National Trust Company (the Bank) and California Reconveyance Company(CRC), were in fact the beneficiary and trustee, respectively, under a deed of trust secured by theirproperty, and thus had authority to conduct the sale. Plaintiffs also contend that they are entitled to berepaid for the expenses they incurred in repairing and insuring the property and paying back taxes if defendants are successful in establishing their interest in the property.Defendants moved for summary judgment. In support of their motion, they requested that the trialcourt take judicial notice of recorded documents, including an Assignment of Deed of Trust and aSubstitution of Trustee. Defendants asserted that these documents established the authority of theBank and CRC to conduct the foreclosure sale. Defendants also provided a declaration by a custodian of records for CRC, in which the custodian did not expressly declare that the Bank was the beneficiary andCRC the trustee. Instead, she merely
declared that an Assignment of Deed of Trust and a Substitutionof Trustee had been recorded
and these recorded documents indicated the Bank had been assigned thedeed of trust and that CRC had been substituted as trustee.Plaintiffs appeal from a judgment after the trial court granted defendants’ motion for summary judgment. They contend defendants failed to carry their burden in moving for summary judgment andthe trial court erred in taking judicial notice of and accepting as true the contents of certain recordeddocuments. We agree and reverse the judgment in part. For the reasons discussed herein, we affirm the judgment as to the fourth cause of action, plaintiffs’ claim of unjust enrichment.
FACTUAL AND PROCEDURAL BACKGROUND
 In June of 2008, plaintiffs purchased the property at 739 Alameda Avenue, South Lake Tahoe (theProperty) at a foreclosure sale. On February 27, 2009, CRC recorded a “Notice of Default and Election toSell [the Property] Under Deed of Trust.” On May 29, 2009, CRC recorded a Notice of Trustee’s Sale. OnJuly 6, 2009, CRC recorded a Trustee’s Deed upon Sale, showing the Property had been conveyed to theBank, as foreclosing beneficiary. Plaintiffs brought suit against the Bank, CRC and others to set aside thesale, cancel the trustee’s deed, quiet title to the Property, and for unjust enrichment.In the first cause of action, plaintiffs sought to set aside the trustee’s sale. Plaintiffs alleged theypurchased “this run-down, filthy, distressed property” at a foreclosure sale, rehabilitated and repairedthe Property and paid over $4,000 in back property taxes. They had no idea there might be a deed of trust from 2003, as it did not appear in the title search. About a year later, after plaintiffs had completed repair work on the Property, the Bank, “some mega-too-big-to-fail recipient of billions of tax payer dollars” asserted an ownership interest in the Property. The Bank claimed to be the owner of the Property by virtue of a trustee’s deed recorded “by an entity purporting to be the trustee.”
In seeking to set aside the trustee’s sale, plaintiffs alleged that during the year they were the owners of the Property, they never received any notices of assignment of trustee’s deeds or notices of deficiency,nor did they receive any notices of trustee’s sale or trustee’s deeds. They alleged, on information and belief, that “CRC may be, or have been the Trustee, on a purported Trustee’s sale of the subjectproperty, to an entity which may have transferred whatever interest may have been acquired in the trustee’s sale to Defendant Deutsch[e].” Plaintiffs alleged CRC was not the trustee and had no authority to conduct a trustee’s sale, and believed no such sale had taken place. They further alleged any promissory note supporting the 2003 deed of trust was “time barred by the statute” and the maker, if any, “was lulled into believing that no action would be taken to enforce the 2003 [deed of trust] becauseno collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.”In the second cause of action, plaintiffs sought to cancel the trustee’s deed. Plaintiffs alleged the original promissory note and deed of trust no longer existed and the Bank’s deed was invalid “as it is based solely upon purported copies which have no force and effect.”The third cause of action was to quiet title to the Property. Plaintiffs alleged defendants had no original,verifiable promissory note or deed of trust and had no standing to foreclose. They further alleged all rights, title and interest asserted by defendants “were sublimated into a non-functional `security’ instrument that gives no one entity rights in individual notes and deeds of trust.” No defendant had aninterest in the Property, but they had placed a cloud upon plaintiffs’ title.In the fourth cause of action, entitled unjust enrichment, plaintiffs alleged they had paid back taxes,insured the Property, and repaired deferred maintenance. If defendants were successful in claiming an interest in the Property, plaintiffs wanted to be repaid for their expenditures.The Bank and CRC moved for summary judgment or summary adjudication on each cause of action,contending there was no triable issue of fact as to any of plaintiffs’ claims. They claimed the undispute devidence showed that the loan was in default, the Bank was the beneficiary under the deed of trust and CRC was the trustee. The default was not cured and CRC properly noticed the trustee’s sale. Notice of the sale was sent to plaintiffs and California law did not require the original promissory note to foreclose. The Bank and CRC further contended that to quiet title, plaintiffs must allege tender, or anoffer of tender, of the amount owed. They also contended there was no evidence of unjust enrichment.In support of their motion, defendants requested that the court take judicial notice of certain documents pursuant to Evidence Code sections 451, subdivision (f) and 452, subdivisions (d), (g) and (h).These documents were:(1) the Trustee’s Deed upon Sale recorded August 13, 2008, under which plaintiffs took title to theProperty;(2) a Grant Deed recorded December 13, 2002, showing the transfer of the Property to Sheryl Kotz;(3) the Deed of Trust recorded April 30, 2003, with Sheryl Kotz as trustor and Long Beach MortgageCompany as trustee and beneficiary (the 2003 deed of trust);(4) an Assignment of Deed of Trust recorded February 27, 2009, assigning all interest under the 2003deed of trust to the Bank by JPMorgan Chase Bank, as successor in interest to Washington Mutual Bank,successor in interest to Long Beach Mortgage Company;(5) a Substitution of Trustee recorded February 27, 2009, under which the Bank substituted CRC astrustee under the 2003 deed of trust;(6) a “Notice of Default and Election to Sell [the Property] Under Deed of Trust” recorded February 27,2009;(7) a Notice of Trustee’s Sale under the 2003 deed of trust recorded May 29, 2009; and(8) a Trustee’s Deed upon Sale recorded July 6, 2009, under which the Bank, as foreclosing beneficiary,was the grantee of the Property.
To support their motion, defendants also provided the declaration of Deborah Brignac. Brignac was avice-president of CRC and a custodian of records for CRC. She was one of the custodians of records forthe loan that was the subject of plaintiffs’ complaint. She declared that the CRC loan records were madein the ordinary course of business by persons with a duty to make such records and were made aboutthe time of the events reflected in the records. In April of 2003, “Shelia” [sic] Kotz 2
obtained a $340,000loan from Long Beach Mortgage Company, and the loan was secured by a deed of trust on the Property.The 2003 deed of trust provided for a power of sale if the borrower defaulted and failed to cure thedefault. It also provided that successor trustees could be appointed.Brignac further declared that as of February 26, 2009, $10,970.50 was “owed” on the note.
3
An assignment of the 2003 deed of trust was recorded February 27, 2009, indicating the transfer of all interest in the 2003 deed of trust to the Bank. A Substitution of Trustee was recorded the same date.According to Brignac’s declaration, the Bank’s substitution “substitutes the original trustee, Long Beach Mortgage Company for [CRC].”Brignac further declared that a Notice of Default and Election to Sell under Deed of Trust was recorded on February 27, 2009, and copies were sent to plaintiffs on March 4, 2009, as shown in the affidavits of mailing attached to her declaration. A Notice of Trustee’s Sale was recorded on May 29, 2009. Copies of this notice were mailed to plaintiffs, as shown in the attached affidavits of mailing.
4
The loan was not reinstated. The Property was sold at a trustee’s sale on June 25, 2009. At the time of sale, the total unpaid debt was $336,328.10. At no time before the trustee’s sale did plaintiffs tender the unpaid debt.The Bank and CRC filed a separate statement of undisputed facts setting forth the facts as stated in Brignac’s declaration.In response, plaintiffs admitted the description of the Property and that they purchased it on June 24,2008, at a foreclosure sale; they disputed all of the remaining facts. They asserted that the Brignac declaration was without foundation and contained hearsay and that all of the recorded documents contained hearsay.In their opposition to the motion for summary judgment, plaintiffs began with a diatribe against the”Foreclosure Industry,” asserting the industry operated “as if the Evidence Code, the law of contracts,assignments, deeds of trust and foreclosure are merely optional.” They contended defendants failed tomeet their burden of proof for summary judgment because their request for judicial notice and Brignac’sdeclaration were inadmissible hearsay. They further contended the notice of default and the notice of trustee’s sale failed to meet statutory requirements of California law. Finally, they asserted defendants lacked standing to foreclose because they had not produced even a copy of the promissory note.Plaintiffs moved to strike the declaration of Brignac as lacking foundation and containing hearsay. They also opposed the request for judicial notice. They argued the recorded documents were all hearsay.Citing only the Federal Rules of Evidence and federal case law grounded on the federal rules, plaintiffs argued a court cannot take judicial notice of disputed facts contained in a hearsay document. Plaintiffs disputed “virtually everything” in the recorded documents, arguing one can record anything, regardless of its accuracy or correctness.The trial court overruled plaintiffs’ hearsay objections, denied plaintiffs’ motion to strike the Brignac declaration, granted defendants’ request for judicial notice, and granted defendants’ motion for summary judgment, finding no triable issue of material fact. Judgment was entered in favor of the Bankand CRC.
DISCUSSION
I. Law of Summary Judgment and Standard of Review
 A defendant “may move for summary judgment in any action or proceeding if it is contended that theaction has no merit.” (Code Civ. Proc., § 437c, subd. (a).) “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of thecause of action, even if not separately pleaded, cannot be established, or that there is a complete
defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to theplaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action ora defense thereto.”(Id.,subd. (p)(2).) “The motion for summary judgment shall be granted if all thepapers submitted show that there is no triable issue as to any material fact and that the moving party isentitled to a judgment as a matter of law.” (Id.,subd.(c).)”When the defendant moves for summary judgment, in those circumstances in which the plaintiff wouldhave the burden of proof by a preponderance of the evidence, the defendant must present evidencethat would preclude a reasonable trier of fact from finding that it was more likely than not that thematerial fact was true [citation], or the defendant must establish that an element of the claim cannot beestablished, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain,needed evidence.'” (Kahn v. EastSide Union High School Dist.(2003)31 Cal.4th 990, 1003.) A defendantmoving for summary judgment must “present evidence, and not simply point out that the plaintiff doesnot possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co.
(2001)25Cal.4th 826, 854, fn. omitted.)We review a grant of summary judgment de novo. (Bussv. Superior Court(1997)16 Cal.4th 35, 60.) “Inundertaking our independent review of the evidence submitted, we apply the same three-step analysisas the trial court. [Citation.] First, we identify the issues framed by the pleadings. Next, we determinewhether the moving party has established facts justifying judgment in its favor. Finally, if the movingparty has carried its initial burden, we decide whether the opposing party has demonstrated theexistence of a triable, material fact issue. [Citation.]”((2002)103 Cal.App.4th 1409, 431-1432 (Bono).)
II. First, Second and Third Causes of Action
 While plaintiffs’ complaint is hardly a model of clarity, it seeks to undo the foreclosure sale. The firstthree causes of action  to set aside the sale, cancel the trustee’s deed and quiet title  claim, amongother things, that the Bank and CRC had no authority to conduct the foreclosure sale. On this point,plaintiffs allege the Bank claims to be the owner of the Property by virtue of a trustee’s deed recorded”by an entity purporting to be the trustee.” They further allege CRC was not the trustee and had noauthority to conduct the sale; the sale did not take place or was improperly held. The first three causesof action of plaintiffs’ complaint are based on the allegations that the Bank had no interest in theProperty and CRC was not the trustee and had no authority to conduct a trustee’s sale. Thus, initialissues framed by the pleadings are whether the Bank was the beneficiary under the 2003 deed of trustand whether CRC was the trustee under that deed of trust. The fourth cause of action for unjustenrichment raises different issues and will be discussed separately in part III. of the Discussion, post.
 Defendants moved for summary judgment on the basis that plaintiffs’ allegations were not supported bythe undisputed facts. They asserted CRC was the trustee pursuant to the Substitution of Trustee recorded by the Bank as beneficiary under the 2003 deed of trust.To establish that CRC was the trustee and thus had authority to conduct the trustee’s sale, defendants requested that the trial court take judicial notice of the recorded Assignment of Deed of Trust, which showed the Bank was the beneficiary. Defendants also requested that the trial court take judicial notice of the recorded Substitution of Trustee, which showed the Bank, as beneficiary, had substituted CRC as trustee.Matters that may be judicially noticed can support a motion for summary judgment. (Code Civ. Proc., §437c, subd. (b)(1).) However, plaintiffs contend the trial court erred in taking judicial notice of thedisputed facts contained within the recorded documents. We agree.”`Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.'” (Lockley v. Law Office of Cantrell , Green, Pekich, Cruz&McCort (2001)91 Cal.App.4th 875, 882.)
“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid.Code, §450.) “Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. Amatter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.]”(Fremont Indemnity Co. v.Fremont General Cor p.(2007)148 Cal.App.4th 97, 113.)”Taking judicial notice of a document is not the same as accepting the truth of its contents or acceptinga particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage(1986)184 Cal.App.3d 369,374.) While courts take judicial notice of public records, they do not take notice of the truth of mattersstated therein. (Love v. Wol f(1964)226 Cal.App.2d 378, 403.) “When judicial notice is taken of adocument, . . . the truthfulness and proper interpretation of the document are disputable.” (StorMedia,Inc. v. Superior Court(1999)20 Cal.4th 449, 457, fn. 9 (StorMedia).)This court considered the scope of judicial review of a recorded document in Poseidon Development , Inc.v. Woodland Lane Estates , LLC(2007)152 Cal.App.4th 1106(Poseidon ). “[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley `is thepresent holder of beneficial interest under said Deed of Trust.’ By taking judicial notice of the FirstSubstitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot beconsidered not reasonably subject to dispute.” (Id.
at p. 1117.)The same situation is present here. The Substitution of Trustee recites that the Bank “is the presentbeneficiary under” the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trialcourt could not take judicial notice of it. Nor does taking judicial notice of the Assignment of Deed of Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites thatJPMorgan Chase Bank, “successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTERESTTO LONG BEACH MORTGAGE COMPANY” assigns all beneficial interest under the 2003 deed of trust tothe Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach MortgageCompany, through Washington Mutual, is hearsay. Defendants offered no evidence to establish thatJPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. Thetruthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (StorMedia,supra,20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute the truthfulness of the contents of all of therecorded documents.Judicial notice of the recorded documents did not establish that the Bank was the beneficiary or thatCRC was the trustee under the 2003 deed of trust. Defendants failed to establish “facts justifying judgment in [their] favor” (Bono ,supra,103 Cal.App.4th at p. 1432), through their request for judicialnotice.Defendants also relied on Brignac’s declaration, which declared that the 2003 deed of trust permittedthe beneficiary to appoint successor trustees. Brignac, however, did not simply declare the identity of the beneficiary and the new trustee under the 2003 deed of trust. Instead, she declared that anAssignment of Deed of Trust and a Substitution of Trustee were recorded on February 27, 2009. Thesefacts add nothing to the judicially noticed documents; they establish only that the documents wererecorded.Brignac further declared that “[t]he Assignment of Deed of Trust indicatesthat JPMorgan Bank [sic],successor in interest to Washington Mutual Bank, successor in interest to Long Beach MortgageCompany, transfers all beneficial interest in connection with the [deed of trust] to Deutsche BankNational Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4.” (Italics added.) Thisdeclaration is insufficient to show the Bank is the beneficiary under the 2003 deed of trust. A supportingdeclaration must be made on personal knowledgeand “show affirmatively that the affiant is competentto testify to the matters stated.” (Code Civ. Proc., § 437c, subd. (d).) Brignac’s declaration does notaffirmatively show that she can competently testify the Bank is the beneficiary under the 2003 deed of trust. At most, her declaration shows she can testify as to what the Assignment of Deed of Trust
 But the factual contents of the assignment are hearsay and defendants offered no exception to the hearsay rule prior to oral argument to make these factual matters admissible.At oral argument, defendants contended that the recorded documents were actually business records and admissible under the business record exception. We note that Brignac did not provide any information in her declaration establishing that the sources of the information and the manner and time of preparation were such as to indicate trustworthiness. (Evid.Code, § 1271, subd. (d).)5
Information concerning this foundational element was conspicuously lacking.
6
Yet, this information was critical in light of the evidentiary gap establishing the purported assignments from Long Beach Mortgage Company to Washington Mutual Bank to JP Morgan Chase Bank. The records used to generate theinformation in the Assignment of Deed of Trust, if they exist, were undoubtedly records not prepared byCRC, but records prepared by Long Beach Mortgage Company, Washington Mutual and JP Morgan Chase. Defendants have not shown how Brignac could have provided information about the source of that information or how those documents were prepared. (See
Cooley v. Superior Court(2006)140Cal.App.4th 1039[district attorney unable to attest to attributes of subpoenaed records in hispossession relevant to their authenticity and trustworthiness]; Evid.Code, § 1561.) Moreover, the timingof those purported assignments relative to the recording of those events on the Assignment of Deed of Trust cannot be found in the Brignac declaration or anywhere else in the record.We also note that Brignac did not identify either the February 27, 2009 Assignment of Deed of Trust, oranother key document, the February 27, 2009 Substitution of Trustee, as business records in herdeclaration. Rather, she referenced both documents in her declaration by stating that “[a] recordedcopy” was attached as an exhibit. In light of the request for judicial notice, we take this statement tomean that the exhibits represented copies of records on file at the county recorder’s office.
7
On amotion for summary judgment, the affidavits or declarations of the moving party are strictly construedagainst the moving party. (Mann v. Cracchiolo(1985)38 Cal.3d 18, 35 (Mann).) Of course, had thedocuments reflecting the assignments and the substitution been offered as business records, therewould have been no need to request that the court take judicial notice of them. Accordingly, we rejectdefendants’ newly advanced theory.Brignac’s declaration is lacking in yet another way. It is confusing as to the effect of the Substitution of Trustee. She declares, “The Substitution by Deutsche Bank National Trust Company as Trustee for LongBeach Mortgage Loan Trust 2003-4 substitutes the original trustee, Long Beach Mortgage Company forCalifornia Reconveyance Company.” Brignac’s declaration (and defendants’ statement of undisputedfacts) can be read to state that the Bank substituted Long Beach Mortgage Company for CRC as trustee,rather than that CRC was substituted for Long Beach Mortgage Company. We must strictly construe thisstatement against the moving party. (Mann,supra,38 Cal.3d at p. 35.) Even if we were to construeBrignac’s declaration to state that the Bank substituted CRC as trustee under the 2003 deed of trust, itwould be insufficient to establish CRC is the trustee. A declaration that the Substitution of Trustee bythe Bank made CRC trustee would require admissible evidence that the Bank was the beneficiary underthe 2003 deed of trust and thus had the authority to substitute the trustee. As explained ante, defendants failed to provide admissible evidence that the Bank was the beneficiary under the 2003 deedof trust.At oral argument, defendants asserted that plaintiffs’ hearsay objections to their separate statement of facts did not comply with the California Rules of Court. (See Cal. Rules of Court, rule 3.1354(b).) Fromthis, defendants impliedly suggest those objections should be ignored by this court. Whether theobjections complied with the rules of court is of no moment at this juncture. The trial court ruled onthose objections in its order granting summary judgment, stating “Plaintiffs’ hearsay objections areoverruled.” The wording of the court’s order (drafted by defendants) suggests the ruling was made onsubstantive evidentiary grounds, not procedural grounds, and there is no evidence in the record to thecontrary.
Because defendants failed to present facts to establish that the Bank was beneficiary and CRC wastrustee under the 2003 deed of trust, and therefore had authority to conduct the foreclosure sale,triable issues of material fact remain as to the first three causes of action. The trial court erred ingranting summary judgment and it would be error to grant summary adjudication as to any of thosecauses of action.
III. Fourth Cause of Action
 Defendants moved for summary judgment or, alternatively, for summary adjudication as to each causeof action. Accordingly, we consider whether summary adjudication was proper as to the fourth cause of action.The fourth cause of action is entitled “Unjust Enrichment.” Plaintiffs allege that, in the event the Bank issuccessful in asserting its claim to the Property, defendants should pay plaintiffs all monies theyexpended on the Property for back taxes, insurance and deferred maintenance. In their motion forsummary judgment or summary adjudication, defendants contend there can be no claim of unjustenrichment because the Bank had a right to protect its security interest in the Property and it is”inconceivable” CRC was unjustly enriched once plaintiffs defaulted on their obligation.”There is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtainingrestitution based on quasi-contract or imposition of a constructive trust. (1 Witkin, Summary of Cal. Law(10th ed. 2005) Contracts, §§ 1015, 1016, pp. 1104-1105.)” (McKell v. Washington Mutual , Inc.(2006)142 Cal.App.4th 1457, 1490.) Plaintiffs fail to plead a basis for restitution; they allege only that theyspent money on the Property and they would like the money back if they lose the Property.The fourth cause of action pleads no recognizable legal claim and thus is subject to summaryadjudication. “The procedure for resolving a summary judgment motion  presupposes
that the pleadings are adequate to put in issue a cause of action or defense thereto. [Citation.] However a pleading may be defective in failing to allege an element of a cause of action or in failing to intelligibly identify a defense thereto. In such a case, the moving party need not address a missing element or, obviously, respond to assertions which are unintelligible or make out no recognizable legal claim. The summary judgment proceeding is thereby necessarily transmuted into a test of the pleadings and the summary judgment motion into a motion for judgment on the pleadings. In these circumstances it has been said that adefendant’s `motion for summary judgment necessarily includes a test of the sufficiency of the complaint and as such is in legal effect a motion for judgment on the pleadings.’ [Citation.]”(FPIDevelopment , Inc. v. Nakashima(1991)231 Cal.App.3d 367, 382.)Since plaintiffs failed to properly plead a right to restitution on the basis of unjust enrichment, the trialcourt did not err in granting summary adjudication as to the fourth cause of action.
DISPOSITION
 The judgment is reversed with directions to vacate the order granting summary judgment and to enter anew order denying summary judgment, and granting defendants summary adjudication of the fourthcause of action only. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule8.278(a)(3).)We concur:RAYE, P. J.NICHOLSON, J.
Footnotes
1. The name of defendant Deutsche Bank National Trust Company was misspelled “Deutsch” by plaintiffs in the complaint and other filings. We use the correct spelling in our opinion.
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One West False statements

7 Jul

False Statements

06/28/2011

California Bankruptcy Judge Laura Stuart Taylor has joined the ranks of judges who will not tolerate fraudulent documents produced by banks to foreclose. Judge Taylor entered an Order To Show Cause why OneWest Bank, FSB, should not incur “a significant coercive sanction intended to deter any future tender of misleading evidence to any court of this district.” Judge Taylor ordered OneWest to appear before her on July 29, 2011, to show cause as to why it should not be subject to compensatory and/or coercive sanctions, in the case In re Jessie M. Arizmendi, Bk. No. 09-19263-PB13, U.S. Bankruptcy Court, Southern District of California. The case involves a motion for relief from stay filed by OneWest supported with a declaration of Brian Burnett, who declared under penalty of perjury that OneWest was the real party in interest in connection with the Motion because OneWest was the current beneficiary under the terms of a promissory note and Deed of Trust.

According to the Burnett declaration, OneWest received its interest in the Trust Deed pursuant to an Assignment from MERS. The assignment of the Trust Deed and the Note showed the transfer from MERS as nominee for the original lender directly to OneWest in 2010.

At trial, however, OneWest’s witness, Charles Boyle, testified that the beneficiary of the loan was actually Freddie Mac. Based on this conflict, the Court required post-trial briefings.

According to the Court, “OneWest, in its post-trial brief, provided a standing argument based on a new version of the Note, which attached an allonge dated July 24, 2007 evidencing a transfer from Original Lender to IndyMac Bank, FSB and bore an endorsement in blank from IndyMac Bank, FSB. This was new information not presented in the OneWest Declaration and this note was not identical to the note authenticated by the OneWest Declaration and attached to the OneWest Proof of Claim.

This Court is concerned, thus, that OneWest provided false or misleading evidence to the Court and that OneWest did so willfully, maliciously, in bad faith, and/or for an inappropriate purpose.”

According to research by Fraud Digest, Brian Burnett has used many different job titles when signing mortgage-related documents for OneWest, often using different titles on the same day, including:

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Acoustic Home Loans;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Aegis Wholesale Corporation;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for American Brokers Conduit;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Beach First National Bank;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Credit Suisse Financial Corp.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for CTX Mortgage Company, LLC;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for DHI Mortgage Company, Ltd.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Express Capital Lending;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Finasure Home Loans, LLC;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for First Magnus Financial Corporation;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for First Meridian Mortgage;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Flick Mortgage Investors, Inc.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Home Loan Center, Inc. d/b/a LendingTree Loans;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Impac Funding Corp., d/b/a Impac Lending Group;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for IndyMac Bank, FSB;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for LoanCity;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for MortgageIt, Inc.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for NetBank, a Federal Savings Bank;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for New American Funding, a California Corporation;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Opteum Financial Services, LLC;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for OneWest Bank, FSB;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Quicken Loans, Inc.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Sloan Mortgage Group, Inc.;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Taylor, Bean & Whitaker;

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for TM Capital, Inc.

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for d/b/a Fedfirst Mortgage Corporation; and

– Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for UBS AG.

July 29, 2011, may be the day that Brian Burnett and OneWest are held accountable for the thousands of mortgage assignments – with false statements regarding the history and ownership of mortgages – presented to courts to foreclose.

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