CALIFORNIA FRAUD DEFINED

4 Nov

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Wednesday, August 10, 2011 11:43 AM
To: Charles Cox
Subject: CALIFORNIA FRAUD DEFINED

CALIFORNIA FRAUD DEFINED

Posted on August 10, 2011 by Neil Garfield

Submitted on 2011/08/08 at 8:38 pm

Sorry the supporting PDF documents did not come through but if any lawyers out there are interested and send me a reply email and I will forward the supporting PDF copies along with the text

by Forrest Hazard

Hold onto your hats Folks…

There are not just two separate frauds here: I finally figured out how to stop MERS [Mortgage Electronic Registration Systems Inc] as foreclosing entity and assignee in California and possibly throughout the United States and it applies to all previous mortgages as well Follow the logic:

The block in totality applies to every mortgage entered into or foreclosed upon since the name MERS {Mortgage Electronic Registration Systems Inc] was suspended by official action of the Franchise Tax Board and the Secretary of State the name cannot be used by MERS [either California or Delaware] because of Section 201B of the Corporation as both Names were/are identical and still remain suspended thereby invoking at least during the known period of suspension [since 2004] [See below] and activate the following bar to conducting any real estate transaction

(d) If a taxpayer’s powers, rights, and privileges are forfeited or suspended pursuant to Section 23301, 23301.5, or 23775, without limiting any other consequences of such forfeiture or suspension, the taxpayer shall not be entitled to sell, transfer, or exchange real property in California during the period of forfeiture or suspension

CALIFORNIA CODES CORPORATIONS CODE SECTION 200-213

Undoubtedly two identical names are likely to deceive the public

201. (a) The Secretary of State shall not file articles setting forth a name in which “bank,” ” trust,” “trustee” or related words appear, unless the certificate of approval of the Commissioner of Financial Institutions is attached thereto. This subdivision does not apply to the articles of any corporation subject to the Banking Law on which is endorsed the approval of the Commissioner of Financial Institutions.

(b) The Secretary of State shall not file articles which set forth a name which is likely to mislead the public or which is the same as, or resembles so closely as to tend to deceive, the name of a domestic corporation, the name of a foreign corporation which is authorized to transact intrastate business or has registered its name pursuant to Section 2101, a name which a foreign corporation has assumed under subdivision (b) of Section 2106, a name which will become the record name of a domestic or foreign corporation upon the effective date of a filed corporate instrument where there is a delayed effective date pursuant to subdivision (c) of Section 110 or subdivision

c) of Section 5008, or a name which is under reservation for another corporation pursuant to this section, Section 5122,Section 7122, or Section 9122, except that a corporation may adopt a name that is substantially the same as an existing domestic corporation or foreign corporation which is authorized to transact intrastate business or has registered its name pursuant to Section 2101, upon proof of consent by such domestic or foreign corporation and a finding by the Secretary of State that under the circumstances the public is not likely to be misled. The use by a corporation of a name in violation of this section may be enjoined notwithstanding the filing of its articles by the Secretary of State. (c) Any applicant may, upon payment of the fee prescribed therefore in the Government Code, obtain from the Secretary of State a certificate of reservation of any name not prohibited by subdivision(b), and upon the issuance of the certificate the name stated therein shall be reserved for a period of 60 days.

The Secretary of State shall not, however, issue certificates reserving the same name for two or more consecutive 60-day periods to the same applicant or for the use or benefit of the same person, partnership, firm or corporation; nor shall consecutive reservations be made by or for the use or benefit of the same person, partnership, firm or corporation of names so similar as to fall within the prohibitions of subdivision (b).

23303. Notwithstanding the provisions of Section 23301 or 23301.5,any corporation that transacts business or receives income within the period of its suspension or forfeiture shall be subject to tax under the provisions of this chapter.

Identically MERS has no exemption to use of the state Real Property registry authorizing it to use EDS/LPS or MERSREGISTRY therefore they owe significant fees under the following statute: [Unjust Enrichment] These are triggered any time MERS conducts a foreclosure or completes an assignment of s mortgage on part of its primary

MERS either California or Delaware is additionally in violation of the following state-county statute

CALIFORNIA CODES REVENUE AND TAXATION CODE SECTION 11911-11913

11911. (a) The board of supervisors of any county or city and county, by an ordinance adopted pursuant to this part, may impose, on each deed, instrument, or writing by which any lands, tenements, or other realty sold within the county shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance remaining thereon at the time of sale) exceeds one hundred dollars($100) a tax at the rate of fifty-five cents ($0.55) for each five hundred dollars ($500) or fractional part thereof. (b) The legislative body of any city which is within a county which has imposed a tax pursuant to subdivision (a) may, by an ordinance adopted pursuant to this part, impose, on each deed, instrument, or writing by which any lands, tenements, or other realty sold within the city shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed(exclusive of the value of any lien or encumbrance remaining thereon at the time of sale) exceeds one hundred dollars ($100), a tax at the rate of one-half the amount specified in subdivision (a) for each five hundred dollars ($500) or fractional part thereof. (c) A credit shall be allowed against the tax imposed by a county ordinance pursuant to subdivision (a) for the amount of any tax due to any city by reason of an ordinance adopted pursuant to subdivision(b). No credit shall be allowed against any county tax for a city tax which is not in conformity with this part.

11912. Any tax imposed pursuant to Section 11911 shall be paid by any person who makes, signs or issues any document or instrument subject to the tax, or for whose use or benefit the same is made, signed or issued.

Causes of action are set forth below:

CALIFORNIA CODES CIVIL CODE SECTION 1565-1590

1571. Fraud is either actual or constructive.

1572. Actual fraud, within the meaning of this Chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.

1573. Constructive fraud consists:

1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,

2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.

1574. Actual fraud is always a question of fact.

QUESTIONS OF FACT ARE DECIDED BY JURIES

CALIFORNIA CODES CIVIL CODE SECTION 1708-1725

1708. Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.

1709. One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.

1710. A deceit, within the meaning of the last section, is either:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,

4. A promise, made without any intention of performing it.

1711. One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit.

1712. One who obtains a thing without the consent of its owner, or by a consent afterwards rescinded, or by an unlawful exaction which the owner could not at the time prudently refuse, must restore it to the person from whom it was thus obtained, unless he has acquired a title thereto superior to that of such other person, or unless the transaction was corrupt and unlawful on both sides.

Is MERS responsible for the actions taken by corporate signors Officers California law says YES

2337. An instrument within the scope of his authority by which an agent intends to bind his principal, does bind him if such intent is plainly inferable from the instrument itself.

CALIFORNIA CIVIL CODE AGENCY SECTIONS 2295-2300, 2304-2326, 2330-2339, 2342-2345, 2349-2351

2295. An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.

2296. Any person having capacity to contract may appoint an agent, and any person may be an agent.

2297. An agent for a particular act or transaction is called a special agent. All others are general agents.

2298. An agency is either actual or ostensible.

2299. An agency is actual when the agent is really employed by the principal.

2300. An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.

2304. An agent may be authorized to do any acts which his principal might do, except those to which the latter is bound to give his personal attention.

2305. Every act which, according to this Code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly appears.

2306. An agent can never have authority, either actual or ostensible, to do an act which is, and is known or suspected by the person with whom he deals, to be a fraud upon the principal.

2307. An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification.

2308. A consideration is not necessary to make an authority, whether precedent or subsequent, binding upon the principal.

2309. An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing.

2310. A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof.

2311. Ratification of part of an indivisible transaction is a ratification of the whole.

2312. A ratification is not valid unless, at the time of ratifying the act done, the principal has power to confer authority for such an act.

2313. No unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent.

2314. A ratification may be rescinded when made without such consent as is required in a contract, or with an imperfect knowledge of the material facts of the transaction ratified, but not otherwise.

2315. An agent has such authority as the principal, actually or ostensibly, confers upon him.

2316. Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.

2317. Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.

2318. Every agent has actually such authority as is defined by this Title, unless specially deprived thereof by his principal, and has even then such authority ostensibly, except as to persons who have actual or constructive notice of the restriction upon his authority.

2319. An agent has authority:
1. To do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency; and,
2. To make a representation respecting any matter of fact, not including the terms of his authority, but upon which his right to use his authority depends, and the truth of which cannot be determined by the use of reasonable diligence on the part of the person to whom the representation is made.

2320. An agent has power to disobey instructions in dealing with the subject of the agency, in cases where it is clearly for the interest of his principal that he should do so, and there is not time to communicate with the principal.

2321. When an authority is given partly in general and partly in specific terms, the general authority gives no higher powers than those specifically mentioned.

2322. An authority expressed in general terms, however broad, does not authorize an agent to do any of the following:
(a) Act in the agent’s own name, unless it is the usual course of business to do so.
(b) Define the scope of the agency.
(c) Violate a duty to which a trustee is subject under Section 16002, 16004, 16005, or 16009 of the Probate Code.

2323. An authority to sell personal property includes authority to warrant the title of the principal, and the quality and quantity of the property.

2324. An authority to sell and convey real property includes authority to give the usual covenants of warranty.

2325. A general agent to sell, who is entrusted by the principal with the possession of the thing sold, has authority to receive the price.

2326. A special agent to sell has authority to receive the price on delivery of the thing sold, but not afterwards.

2330. An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal.

2331. A principal is bound by an incomplete execution of an authority, when it is consistent with the whole purpose and scope thereof, but not otherwise.

2332. As against a principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.

2333. When an agent exceeds his authority, his principal is bound by his authorized acts so far only as they can be plainly separated from those which are unauthorized.

2334. A principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.

2335. If exclusive credit is given to an agent by the person dealing with him, his principal is exonerated by payment or other satisfaction made by him to his agent in good faith, before receiving notice of the creditor’s election to hold him responsible.

2336. One who deals with an agent without knowing or having reason to believe that the agent acts as such in the transaction, may set off against any claim of the principal arising out of the same, all claims which he might have set off against the agent before notice of the agency.

2337. An instrument within the scope of his authority by which an agent intends to bind his principal, does bind him if such intent is plainly inferable from the instrument itself.

2338. Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.

2339. A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section, unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service.

2342. One who assumes to act as an agent thereby warrants, to all who deal with him in that capacity, that he has the authority which he assumes.

2343. One who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency, in any of the following cases, and in no others:
1. When, with his consent, credit is given to him personally in a transaction;
2. When he enters into a written contract in the name of his principal, without believing, in good faith, that he has authority to do so; or,
3. When his acts are wrongful in their nature.

2344. If an agent receives anything for the benefit of his principal, to the possession of which another person is entitled, he must, on demand, surrender it to such person, or so much of it as he has under his control at the time of demand, on being indemnified for any advance which he has made to his principal, in good faith, on account of the same; and is responsible therefor, if, after notice from the owner, he delivers it to his principal.

2345. The provisions of this Article are subject to the provisions of Part I, Division First, of this Code.

2349. An agent, unless specially forbidden by his principal to do so, can delegate his powers to another person in any of the following cases, and in no others:
1. When the act to be done is purely mechanical;
2. When it is such as the agent cannot himself, and the sub-agent can lawfully perform;
3. When it is the usage of the place to delegate such powers; or,
4. When such delegation is specially authorized by the principal.

2350. If an agent employs a sub-agent without authority, the former is a principal and the latter his agent, and the principal of the former has no connection with the latter.

2351. A sub-agent, lawfully appointed, represents the principal in like manner with the original agent; and the original agent is not responsible to third persons for the acts of the sub-agent.

CALIFORNIA CODES REVENUE AND TAXATION CODE SECTION 23301-23305e

23301. Except for the purposes of filing an application for exempt status or amending the articles of incorporation as necessary either to perfect that application or to set forth a new name, the corporate powers, rights and privileges of a domestic taxpayer may be suspended, and the exercise of the corporate powers, rights and privileges of a foreign taxpayer in this state may be forfeited, if any of the following conditions occur: (a) If any tax, penalty, or interest, or any portion thereof, that is due and payable under Chapter 4 (commencing with Section 19001)of Part 10.2, or under this part, either at the time the return is required to be filed or on or before the 15th day of the ninth month following the close of the taxable year, is not paid on or before 6p.m. on the last day of the 12th month after the close of the taxable year. (b) If any tax, penalty, or interest, or any portion thereof, due and payable under Chapter 4 (commencing with Section 19001) of Part 10.2, or under this part, upon notice and demand from the Franchise Tax Board, is not paid on or before 6 p.m. on the last day of the 11th month following the due date of the tax. (c) If any liability, or any portion thereof, which is due and payable under Article 7 (commencing with Section 19131) of Chapter 4of Part 10.2, is not paid on or before 6 p.m. on the last day of the 11th month following the date that the tax liability is due and payable.

23301.6. Sections 23301, 23301.5, and 23775 shall apply to a foreign taxpayer only if the taxpayer is qualified to do business in California. A taxpayer that is required under Section 2105 of the Corporations Code to qualify to do business shall not be deemed to have qualified to do business for purposes of this article unless the taxpayer has in fact qualified with the Secretary of State.

23302. (a) Forfeiture or suspension of a taxpayer’s powers, rights, and privileges pursuant to Section 23301, 23301.5, or 23775 shall occur and become effective only as expressly provided in this section in conjunction with Section 21020, which requires notice prior to the suspension of a taxpayer’s corporate powers, rights, and privileges.

(b) The notice requirements of Section 21020 shall also apply to any forfeiture of a taxpayer’s corporate powers, rights, and privileges pursuant to Section 23301, 23301.5, or 23775 and to any voidability pursuant to subdivision (d) of Section 23304.1.

(c) The Franchise Tax Board shall transmit the names of taxpayers to the Secretary of State as to which the suspension or forfeiture provisions of Section 23301, 23301.5, or 23775 are or become applicable, and the suspension or forfeiture therein provided for shall thereupon become effective. The certificate of the Secretary of State shall be prima facie evidence of the suspension or forfeiture.

(d) If a taxpayer’s powers, rights, and privileges are forfeited or suspended pursuant to Section 23301, 23301.5, or 23775, without limiting any other consequences of such forfeiture or suspension, the taxpayer shall not be entitled to sell, transfer, or exchange real property in California during the period of forfeiture or suspension.23303. Notwithstanding the provisions of Section 23301 or 23301.5,any corporation that transacts business or receives income within the period of its suspension or forfeiture shall be subject to tax under the provisions of this chapter.

23304.1. (a) Every contract made in this state by a taxpayer during the time that the taxpayer’s corporate powers, rights, and privileges are suspended or forfeited pursuant to Section 23301,23301.5, or 23775 shall, subject to Section 23304.5, be voidable at the instance of any party to the contract other than the taxpayer.

(b) If a foreign taxpayer that neither is qualified to do business nor has a corporate account number from the Franchise Tax Board, fails to file a tax return required under this part, any contract made in this state by that taxpayer during the applicable period specified in subdivision (c) shall, subject to Section 23304.5, be voidable at the instance of any party to the contract other than the taxpayer.

(c) For purposes of subdivision (b), the applicable period shall be the period beginning on January 1, 1991, or the first day of the taxable year for which the taxpayer has failed to file a return, whichever is later, and ending on the earlier of the date the taxpayer qualified to do business in this state or the date the taxpayer obtained a corporate account number from the Franchise Tax Board.

(d) If a taxpayer fails to file a tax return required under this part, to pay any tax or other amount owing to the Franchise Tax Board under this part or to file any statement or return required under Section 23772 or 23774, within 60 days after the Franchise Tax Board mails a written demand therefor, any contract made in this state by the taxpayer during the period beginning at the end of the 60-day demand period and ending on the date relief is granted under Section 23305.1, or the date the taxpayer qualifies to do business in this state, whichever is earlier, shall be voidable at the instance of any party to the contract other than the taxpayer. This subdivision shall apply only to a taxpayer if the taxpayer has a corporate account number from the Franchise Tax Board, but has not qualified to do business under Section 2105 of the Corporations Code. In the case of a taxpayer that has not complied with the 60-day demand, the taxpayer’s name, Franchise Tax Board corporate account number, date of the demand, date of the first day after the end of the 60-day demand period, and the fact that the taxpayer did not within that period pay the tax or other amount or file the statement or return, as the case may be, shall be a matter of public record.23304.5. A party that has the right to declare a contract to be voidable pursuant to Section 23304.1 may exercise that right only in a lawsuit brought by either party with respect to the contract in a court of competent jurisdiction and the rights of the parties to the contract shall not be affected by Section 23304. 1 except to the extent expressly provided by a final judgment of the court, which judgment shall not be issued unless the taxpayer is allowed a reasonable opportunity to cure the voidability under Section 23305.1.If the court finds that the contract is voidable under Section 23304.1, the court shall order the contract to be rescinded. However, in no event shall the court order rescission of a taxpayer’s contract unless the taxpayer receives full restitution of the benefits provided by the taxpayer under the contract.23305. Any taxpayer which has suffered the suspension or forfeiture provided for in Section 23301 or 23301.5 may be relieved there from upon making application therefor in writing to the Franchise Tax Board and upon the filing of all tax returns required under this part, and the payment of the tax, additions to tax, penalties, interest, and any other amounts for nonpayment of which the suspension or forfeiture occurred, together with all other taxes, additions to tax, penalties, interest, and any other amounts due under this part, and upon the issuance by the Franchise Tax Board of a certificate of revivor. Application for the certificate on behalf of any taxpayer which has suffered suspension or forfeiture may be made by any stockholder or creditor, by a majority of the surviving trustees or directors thereof, by an officer, or by any other person who has interest in the relief from suspension or forfeiture.

CALIFORNIA CODES BUSINESS AND PROFESSIONS CODE SECTION 17900-17930

17903. As used in this chapter, “registrant” means a person or entity who is filing or has filed a fictitious business name statement, and who is the legal owner of the business.

17910. Every person who regularly transacts business in this state for profit under a fictitious business name shall do all of the following: (a) File a fictitious business name statement in accordance with this chapter not later than 40 days from the time the registrant commences to transact such business. (b) File a new statement after any change in the facts, in accordance with subdivision (b) of Section 17920. (c) File a new statement when refiling a fictitious business name statement.

17910.5. (a) No person shall adopt any fictitious business name which includes “Corporation,” “Corp.,” “Incorporated,” or “Inc.” unless that person is a corporation organized pursuant to the laws of this state or some other jurisdiction.

In 2005 I sued MERS and MERSCORP both successfully I also sued the California Department of Corporations and California Secretary of State in small claims court I settled those small claims cases for a Certificate of a Non Filing entity and a letter see below

17918. No person transacting business under a fictitious business name contrary to the provisions of this chapter, or his assignee, may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required by this chapter.

This is one of the items obtained from that small claims suit

According to the Enforcement Division of the SEC in Washington which I spoke to both under Paul Cox and Mary Schapiro Ace Securities a Chinese Shadow Bank doing business under a Japanese Division of the Karachi stock Exchange fraudulently filed 85000 documents with the SEC and loaned out over 39 Trillion dollars [One
trillion dollars is a stack of 100 dollar bills 700 miles in height] never paid any state or federal taxes claiming that it was a Delaware business trust [A
trust declared to be illegal outside of Delaware by the IRS an abusive trust] but loaned mostly to Bank of America Wachovia Wells Fargo CountryWide Washington Mutual and a host of others including Ownit Mortgage [From CNN
Special A house of cards infamy] mostly through HSBC as Trustee and securitized through MERS [Mortgage Electronic Registration Systems Inc]

To this the Franchise Tax Board sent the following response:

In the case of MERS they stated the following:

Apparently they refuse to follow this Corporation law in this matter

All of my documents having been issued by California state and Delaware state regulatory agencies were granted Judicial Notice [Court authenticity] in the courtroom of Judge Laura Halgren September 17 2007 in multiple cases most notably El Cajon California East County San Diego case number 2007-33928. There are 6 – 1000 page folders in that case alone

No action was ever taken by any entity against either MERS or Ace to the best of my knowledge

DFI counsel Kenneth Sayre Peterson stated

The California Attorney General Issued one of many letters seen below (there is nothing below, sorry…)

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