Small claims has equitable powers…….. this could work! ….. Could this Work????

10 Sep

Here is a crazy idea

In 2009 the California legislature gave equitable powers to the small claims court

We make up a little package that includes the deed of trust and the notice of default and show they are not the party in interest ie… The original Bank…… is not the pretender lender……… and ask the small claims court to rescind the Notice of Default

Banks have to defend without their lawyers and without demurs

Then there would be a court order rescinding the notice no damages just rescission

Here is the amended code pay close attention to (b)

California Code of Civil Procedure Section 116.220

Legal Research Home > California Laws > Code of Civil Procedure > California Code of Civil Procedure Section 116.220

(a) The small claims court has jurisdiction in the
following actions:
   (1) Except as provided in subdivisions (c), (e), and (f), for
recovery of money, if the amount of the demand does not exceed five
thousand dollars ($5,000).
   (2) Except as provided in subdivisions (c), (e), and (f), to
enforce payment of delinquent unsecured personal property taxes in an
amount not to exceed five thousand dollars ($5,000), if the legality
of the tax is not contested by the defendant.
   (3) To issue the writ of possession authorized by Sections 1861.5
and 1861.10 of the Civil Code if the amount of the demand does not
exceed five thousand dollars ($5,000).
   (4) To confirm, correct, or vacate a fee arbitration award not
exceeding five thousand dollars ($5,000) between an attorney and
client that is binding or has become binding, or to conduct a hearing
de novo between an attorney and client after nonbinding arbitration
of a fee dispute involving no more than five thousand dollars
($5,000) in controversy, pursuant to Article 13 (commencing with
Section 6200) of Chapter 4 of Division 3 of the Business and
Professions Code.
   (5) For an injunction or other equitable relief only when a
statute expressly authorizes a small claims court to award that
relief.
   (b) In any action seeking relief authorized by paragraphs (1) to
(4), inclusive, of subdivision (a), the court may grant equitable
relief in the form of rescission, restitution, reformation, and
specific performance, in lieu of, or in addition to, money damages.
The court may issue a conditional judgment. The court shall retain
jurisdiction until full payment and performance of any judgment or
order.
   (c) Notwithstanding subdivision (a), the small claims court has
jurisdiction over a defendant guarantor as follows:
   (1) For any action brought by a natural person against the
Registrar of the Contractors' State License Board as the defendant
guarantor, the small claims jurisdictional limit stated in Section
116.221 shall apply.
   (2) For any action against a defendant guarantor that does not
charge a fee for its guarantor or surety services, if the amount of
the demand does not exceed two thousand five hundred dollars
($2,500).
   (3) For any action brought by a natural person against a defendant
guarantor that charges a fee for its guarantor or surety services,
if the amount of the demand does not exceed six thousand five hundred
dollars ($6,500).
   (4) For any action brought by an entity other than a natural
person against a defendant guarantor that charges a fee for its
guarantor or surety services or against the Registrar of the
Contractors' State License Board as the defendant guarantor, if the
amount of the demand does not exceed four thousand dollars ($4,000).
   (d) In any case in which the lack of jurisdiction is due solely to
an excess in the amount of the demand, the excess may be waived, but
any waiver is not operative until judgment.
   (e) Notwithstanding subdivision (a), in any action filed by a
plaintiff incarcerated in a Department of Corrections and
Rehabilitation facility, the small claims court has jurisdiction over
a defendant only if the plaintiff has alleged in the complaint that
he or she has exhausted his or her administrative remedies against
that department, including compliance with Sections 905.2 and 905.4
of the Government Code. The final administrative adjudication or
determination of the plaintiff's administrative claim by the
department may be attached to the complaint at the time of filing in
lieu of that allegation.
   (f) In any action governed by subdivision (e), if the plaintiff
fails to provide proof of compliance with the requirements of
subdivision (e) at the time of trial, the judicial officer shall, at
his or her discretion, either dismiss the action or continue the
action to give the plaintiff an opportunity to provide that proof.
   (g) For purposes of this section, "department" includes an
employee of a department against whom a claim has been filed under
this chapter arising out of his or her duties as an employee of that
department.

Please let me know what you think on this one

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16 Responses to “Small claims has equitable powers…….. this could work! ….. Could this Work????”

  1. Michelle Garrett September 11, 2011 at 1:08 pm #

    How would you get around the $5,000 limit for small claims court when a mortgage is involved?

    • timothymccandless September 12, 2011 at 7:06 am #

      You are not asking for money you are asking for the equitable remedy of rescission(of the notice of default), hence the equitable power of the small claims court; I as an attorney am not saying it would work …. but I do not believe that this has been tried. according to the code the small claims court has “equitable powers” and since lawyers are not allowed I’m putting this out there to be tried and tested

      • farginizol September 17, 2011 at 8:43 am #

        What small claims form can be used, to initiate this action? Am I permitted to “modify” the questions in the form?

      • timothymccandless September 18, 2011 at 5:41 am #

        At the question on the form reply “I am seeking equitable relief of rescission of the notice of default My loan is with “xyz Bank” and ” Bankster ” has filed and recorded a notice of default this notice is by a party who is a stranger to my loan they have no standing to foreclose on my home. Attach the Notice of Default

  2. david December 26, 2011 at 8:34 pm #

    I would like to try this. If the Bankster doesn’t show up, you win rescission? If they do show up, they would come with substitution of Trustee, MERS Assignment and try to show the court the document trail. What then? Any updates since September? Any experiences? Send to davidwood100@yahoo.com

  3. Barry December 31, 2011 at 3:08 pm #

    I have several houses and would like to try this. I am confused about a(5). What statute authorizes small claims court to order a rescission of a NOD? Thank. Barry

    • Randy Frodsham March 20, 2012 at 5:29 am #

      Yes, Barry, and (b) specifically includes only (a)(1-5); (a)(5) is specifically EXCLUDED.
      Did you ever get a response to your question “If they do show up, they would come with substitution of Trustee, MERS Assignment and try to show the court the document trail. What then?”

      • Randy Frodsham March 20, 2012 at 7:08 am #

        I meant (b) specifically only (a)(1-4)

  4. John Stuart March 18, 2012 at 7:56 pm #

    I do see this as a viable plan including without limitations the judge’s authority to set conditions; see “The court may issue a conditional judgment.” Said judgment may be inclusive of a requirement to meet the elements established by Rule 17(a) “ratification of commencement;” meaning the judge could order the banks to prove standing BEFORE filing a NOD and/or recording any documents into the public record.

    In addition, if the “victim” of the fraudulent NOD had completed a notary complaint and the notary’s commission was revoked or suspended the court could issue a finding of facts and conclusion of law relevant to a “conspiracy” to defraud not only said “victim” but also the court and the recorder’s office under the “…filing and/or recording a false and/or forged document into a public office…” statute.

    I am an advocate of using the “small claims court” to obtain res judicata for higher cases. The new law allows SMC to be used as a decision for PRESUMPTIONS the higher court must use when determining standing and real parties in interest. Once it is determined, even in a lower court, a party does not have standing and/or is not the RPII the PRESUMPTION would bar any future action by said party UNTIL the PRESUMPTION is reversed, which is almost impossible.

    In short, I think this is a brilliant idea and I suggest everyone pursue it further.

    • Randy Frodsham March 20, 2012 at 5:37 am #

      John, including the result of a notary complaint is a great idea, except (and you are probably not aware) that the California Secretary of State takes about a year to even get to a notary complaint.
      With a minimum 112-day NOD-to-trustee’s sale time span, in reality that facet is probably not going to be available.

  5. onegreenmind March 18, 2012 at 10:33 pm #

    and how can this apply to one who isn’t in foreclosure?

    • Randy Frodsham March 20, 2012 at 7:07 am #

      John Stuart would say it’s the perfect time to go for Quiet Title.

    • timothymccandless March 20, 2012 at 9:16 am #

      We make up a little package that includes the deed of trust and show they are not the party in interest ie… The original Bank…… is not the pretender lender……… and ask the small claims court to rescind the Security interest the pretender lender has in the Deed of Trust
      Banks have to defend without their lawyers and without demurs

      Then there would be a court order rescinding the notice no damages just rescission

      Once again I could not do this a lawyer but if they lose you could have a lawyer on the appeal to superior court once again this started as a crazy idea

      • david March 20, 2012 at 10:12 am #

        But that is not codifed in (a)(1)-(4). It is codified by (5) and does not address the question of support by statute authorizing recission:

        (5) For an injunction or other equitable relief only when a
        statute expressly authorizes a small claims court to award that
        relief.
        (b) In any action seeking relief authorized by paragraphs (1) to
        (4), inclusive, of subdivision (a), the court may grant equitable
        relief in the form of rescission, restitution, reformation, and
        specific performance, in lieu of, or in addition to, money damages.
        The court may issue a conditional judgment. The court shall retain
        jurisdiction until full payment and performance of any judgment or
        order.

      • Randy Frodsham March 21, 2012 at 6:45 am #

        Mr. McCandless,
        I too am very interested in how to address the concerns David raises. It sounds like a great idea, but, because of (b)’s restriction to include only (a)(1-4, seemingly specifically excluding 5), I’m just not seeing how this can be successfully applied.
        Your expounding on this would be greatly appreciated.
        Thank you.

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