Perjury

22 Mar

Perjury Law Defense

Penal Code 118a & 118(a)

Information regarding the crime of perjury is found at California penal code section 118a and 118(a). To prove that the defendant is guilty of perjury, the prosecutor must prove:

  • The defendant testified, under penalty of perjury, in a court of law or on legal documents, and
  • The defendant knew that he or she was testifying under oath or penalty of perjury, and
  • When the defendant testified, he or she willfully stated information was true when he or she knew it was false, and
  • The information was material to the case (not some trivial misrepresentation)

In sum, perjury is defined as testifying falsely while under oath to any officer, tribunal, or person, or declaring under penalty of perjury that something is true when the defendant knows it to be false.

When perjury is charged after false testimony is given in court the defendant is charged with penal code 118(a) [Perjury under oath]

When perjury is charged after legal documents are filed with false information, or missing information that was intended to defraud, the defendant is charged with penal code 118a [Perjury by false affidavit].

For example: If the defendant signs legal documents with the welfare department to receive welfare benefits, and the defendant includes false information, or excludes pertinent information, on the welfare documents, he or she may be charged with perjury, if he or she knew the information was false, because welfare documents are legal documents that are signed under penalty of perjury. The Defendant may also be charged with welfare fraud under this example (Perjury by false affidavit PC 118a).

Example 2: If a defendant father testifies under oath in a child support case that he earns less money than he actually earns, he may be charged with perjury, because the issue of his finances is pertinent to the case and he would have sworn under oath to tell the truth before the testimony was given in court (Perjury under oath PC 118(a). 

Punishment for PC 118a & 118(a) Crimes

Both perjury crimes (PC 118a & 118(a)) are classified as a felonies in California. If the defendant is found guilty of perjury under oath (PC 118(a), the defendant may be punished by up to four years in the state prison. If the defendant is found guilty of perjury by false affidavit (PC 118a), the defendant may face up to three (3) years in prison).

Probation Sentence: In some perjury cases it may be possible to have the charges dismissed or reduced. In other perjury cases a sentence of probation (without prison or jail) may be possible. Whether or not a perjury charge is dismissed, reduced, or granted probation depends largely on the egregiousness of the case and the defendant’s criminal history.

Strike Crime: PC 118a and 118(a) crimes are not considered strike crimes as those terms are found in California’s Three Strikes Sentencing Law. If found guilty of either perjury charge the defendant may be eligible for early parole pursuant to Prop 57 (early release on parole for non-violent offenders). Also, the defendant may earn at least fifty percent (50%) credit off his or her sentence for any good time behavior while in jail or prison.

Moral Turpitude: Perjury is considered a crime of moral turpitude, which means that the crime is considered to be a moral wrong. Crimes of moral turpitude carry special punishments for non-U.S. citizens and licenses professional (i.e. doctors, dentist, nurses, lawyers, etc.).

Firearm Prohibition: If found guilty of perjury under either PC 118a or 118(a) the defendant will be prohibited from owning or possessing a firearm for the remainder of his or her life.

Collateral Punishment: In addition to any jail or prison sentencing, criminal convictions for perjury crimes can lead to other severe consequences such as: Immigration issues (non-U.S. citizens), harsh probation or parole terms, fines, lawsuits, employment loss, civil lawsuits, increased punishment for future criminal convictions, and more.

Defense to PC 118a & 118(a) [Perjury]

Common defenses to perjury charges include: lack of jurisdiction on perjury by affidavit, mistake of fact as to what the defendant was signing, statute of limitations (could be very long in fraud type cases), duress, necessity, intoxication, insanity, coerced confessions, and more.

To learn more about the crime of Perjury and defenses to penal code 118a and 118(a), contact our criminal defense attorneys today for a free consultation. Our criminal defense attorneys are successful, aggressive, and have handles hundreds of criminal cases, including perjury cases, in the Inland Empire and Los Angeles County. Call today!

Opening Statements Manantan V Wells Fargo

23 Feb

We are in a Jury Trial as against Wells Fargo

 

 

 

Manantan v Wells Fargo Bank (02-21-18 AM SESSION)

Wells Fargo says we don’t dual track you just never really applied for a modification 7944 pages later it was not “complete”

21 Nov

Upon doing the deposition of Joeffery Long Wells Fargo I was amazed that they could be so blatant as against the California Homeowners Bill of Rights but then again it is Wells Fargo

Joffrey Long rough draft

Joffrey Long exhibits

Protected: Manantan v. Wells

19 Nov

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Court Rejected Ditech’s Defense to Discharge Violation in Which It Claimed Computer Generated Statements Sent to Debtor Were Not Willful

3 May

Robert Wilbert | Latest News | April 29, 2017

The Debtor testified that RCS notified him that on June 1, 2016, Ditech would begin servicing the Note. A Ditech representative contacted the Debtor in June by phone and informed him that according to Ditech’s records, the Debtor was $2,000.00 in arrears on the Note. The representative attempted to collect payment from the Debtor at that time. The Debtor was assigned a Ditech account representative, but despite repeated calls to the initial representative, the Debtor was unable to reach anyone to discuss the alleged arrears. Ditech subsequently sent multiple letters to the Debtor informing him of various account representatives assigned to his account. In one instance, Ditech assigned a new account representative less than two weeks after assigning a prior representative.

The Court concluded that Ditech violated the Discharge Injunction.

The willfulness prong of the Fourth Circuit’s test for sanctions “requires only that the acts taken in violation of the injunction be intentional.” In re Fina, 550 Fed. Appx. at 154. Courts have compared this willfulness element to willfulness in the context of a stay violation, requiring an intentional act with knowledge of the discharge injunction. See id. Ditech intentionally acted when it mailed statements to the Debtor, and Ditech’s representatives acted intentionally any time they sought to elicit payment from the Debtor for the alleged arrears over the phone. To the extent the statements that Ditech mailed to the Debtor were computer generated, the sending of those correspondence nevertheless constitutes a willful act. See In re Ennis, 2015 Bankr. LEXIS 3657 (Bankr. E.D.N.C. Oct. 28, 2015). The court also notes that Ditech remains culpable even though it was not the servicer for the Note when the arrears were discharged and Ditech never received the Discharge Order. When a note or other obligation is transferred, the successor in interest is responsible for ensuring records are properly transferred. Moreover, Ditech became aware of the Debtor’s bankruptcy once the Debtor explained that he had cured arrears through his Chapter 13 Plan. Ditech is in contempt of the Discharge Order.

The Debtor was adversely affected by Ditech’s correspondence and failure to explain adequately the alleged delinquency on the Note. The Debtor’s testimony was extremely credible as he described the eight months he has spent trying to rectify this matter. Ditech’s predecessors in interest maintained an active presence in the Debtors’ case, and Ditech is a sophisticated lender familiar with bankruptcy proceedings and the United States Bankruptcy Code. Ditech’s failure to rectify its records without the involvement of this court is unacceptable. The Debtor should be awarded actual damages as compensation for the nuisance and frustration related to the receipt of the correspondence and phone call from Ditech, as well as for time spent dealing with Ditech representatives, documenting payments, contacting counsel about the correspondence and appearing in court. The Debtor incurred expenses related to sending proof of payment to Ditech and his counsel, as well as travel expenses. The appropriate amount of damages to award to the Debtor is $10,000.00.

In re Greene (Bankr EDNC April 27, 2017)

Remic and Viod assignment

3 Feb

I would only add that none of the Trusts actually come to own the debt, loan, note or mortgage anyway. The creation of “assignments” and “powers of attorney” merely create the illusion of a transaction that never occurred.

Rod Ciferri is licensed in New York State. I strongly recommend that lawyers read the following excerpt from Rod Ciferri carefully and incorporate it into the argument and memos.

  1. New York Law Prohibits Plaintiff-In-Intervention’s Late    Acceptance Of The Loan And Deems The Same To Be Void Ab Initio

Estates, Powers & Trusts Law § 7-2.4 (“§ 7-2.4”) states that acts of a trustee in contravention of the trust agreement are void.[1] Here the act of Plaintiff-In-Intervention which is void is its late acceptance of the loan into the trust. Although Defendant is aware of cases holding such acts are merely voidable, such cases rest upon a misunderstanding of New York law.

First, § 7-2.4 was preceded by a statute of nearly identical language[2] – 1 R.S. 730, § 65. That statute was first considered by the highest court in New York, the Court of Appeals, in 1852. Powers v. Bergen (1852) 6 N.Y. 358, found a sale of certain real property held in trust under the direction that the real property would be a life estate for the beneficiary was void under that statute – despite the fact that the beneficiary did not object and that the legislature made a private statute specifically to facilitate such sale. The high court of New York found neither the ratification of the beneficiary, nor private statute of the legislature made the act of the trustees in contravention of the trust agreement anything less than void. Other cases of the New York Court of Appeals followed that literal interpretation of the statute.[3] Given that the statute under consideration by the New York Court of Appeals is identical to the current statute as to its terms that are material to the issues herein, these cases are mandatory authority on the meaning of § 7-2.4: “void” actually means void.

Finally, the California Supreme Court confirmed that the New York Court of Appeals ruled the predecessor statute to § 7-2.4 voided acts of the trustee in contravention of the trust agreement.[4] In fact, that case considered California’s own statute, former Civil Code § 870, that had identical language as New York’s former statute, except that it was limited to real estate, whereas, the New York statute applied to all estates. Significantly, the Firato Court acknowledged a trustee’s acts in contravention of a trust agreement are void, however, in consideration of another section of the Civil Code, it recognized that was not necessarily the case with regard to title to property thereby obtained by purchasers for value without notice. Subsequently, the California legislature repealed Civil Code § 870.[5] Therefore, the California Supreme Court has recognized that that the word “void” used in its own almost identical former statute means void, except in cases where the trustee conveys property to an innocent purchaser.[6]

However, should the Court determine that these cases are not mandatory authority herein because of differences between § 7-2.4 and the prior statutes, despite the dearth of New York Court of Appeals cases considering the legal effect of § 7-2.4, the intermediate appeals courts have established the rule of law in this regard that must be followed by trial courts. In the absence of an on point ruling by the New York Court of Appeals, it is the decisions of the intermediate appeals courts, the Appellate Divisions, which are to be followed by the trial courts. See, Mountain View Coach Lines, Inc. v. Storms (1984) 102 A.D.2d 663 (If only one Appellate Division has ruled on a point not ruled on by the Court of Appeals, that ruling is binding on trial courts).   The only Appellate Division that has specifically dealt with § 7-2.4 is the Second Department. In the matter of Doman (2d Dept. 2013) 110 A.D.3d 1073 (distributions from trust not authorized by the trust agreement must be returned to the trust); Pepi v. Petrella (2d Dept. 2000) 268 A.D.2d 477 (conveyance made in contravention of the trust void). Just as a trustee’s acts in contravention of the trust were adjudged void under the old statute, the Appellate Division, Second Department, has determined the same are void under § 7-2.4.

Moreover, the lower court decisions holding that the word void actually means voidable are of little authority because none of them actually found the wording of § 7-2.4 to have been ambiguous – a prerequisite to judicial construction and interpretation – whether analyzed under California or New York law.[7]

Where a statute is unambiguous, the courts must interpret its words in accordance with their ordinary meaning and not engage in statutory construction. Kimmel v. Goland (1990) 51 Cal.3d 202, 208 (To determine the intent of legislation, courts first consult the words themselves, giving them their usual and ordinary meaning); Rojo v. Kliger (1990) 52 Cal.3d 65, 73 (When statutory language is clear and unambiguous there is no need for construction, and courts should not indulge in it); PBA v. City of New York (1976) 41 NY 2d 205, 208 (“where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used.”). Clearly the courts that have determined “void” means “voidable” did not follow these elementary rules prohibiting judicial construction absent an ambiguous statute.

Also, cases that don’t cite § 7-2.4 that find unauthorized acts of a trustee are “voidable” are of dubious authority herein for not considering that statute’s effect on such acts. Finally, none of these cases analyze the substantially similar statutes that existed in both New York and California, nor the cases decided by the high courts of those respective states correctly interpreting them.

Therefore, this Court should follow the sound mandatory authority of the plain meaning of § 7-2.4, the New York Court of Appeals decisions that considered § 7-2.4’s predecessor statute, the California Supreme Court’s interpretation of a substantially similar statute and the Appellate Division, Second Department cases that specifically considered § 7-2.4. Whether void or voidable, the issue is not an academic one. The legislature’s purpose in enacting § 7-2.4 was “to protect trust beneficiaries from unauthorized actions by the trustee.” Turano, Practice Commentaries, McKinney’s Consolidated Laws of New York, Book 17B, EPTL §7-2.4. That statutory purpose is particularly important in the instant case, since the certificate holder beneficiaries under the trust herein are prohibited by the Agreement from voting on or challenging such unauthorized actions except in certain sharply circumscribed circumstances.[9] In short, “void” means void.

[1] The verbatim language of § 7-2.4 is: “If the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.”

[2] “where the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void.”   See Briggs v. Davis (1859) 20 N.Y. 15, 21.

 

[3] See Briggs v. Davis (1859) 20 N.Y. 15 (grantees of land in trust for the payment of debts reconveyed to the grantor, reciting that the trusts had been executed. In fact, the debts had not all been paid. The debtor then mortgaged the land to one having no actual notice of the trust. It was held that the reconveyance, being in contravention of the trust, was void, and that the legal estate remained in the trustees.); Genet et al. v. Hunt et al. (1889) 113 N.Y. 158 (“The statute makes every conveyance or other act of the trustees of an express trust in lands, in contravention of the trust, absolutely void…”); Russell v. Russell (1867) 36 N.Y. 581 (Transfer in contravention of the trust agreement void, despite mutual assent to it by the trustee and beneficiary).

[4]Firato v. Tuttle (1957) 48 Cal.2d 136 (“In 1859 it was held by a divided court in Briggs v. Davis, 20 N.Y. 15 [75 Am.Dec. 363], that this statute made a wrongful reconveyance under a deed of trust absolutely void even as to an innocent purchaser.”).

[5] For the history of Civil Code § 870, see Schiavon v. Arnaudo Brothers (2000) 84 Cal.App.4th 374.

 

[6] Plaintiff-In-Intervention, as a party to the Agreement, had knowledge that its late acceptance of the instant loan into the trust res was unauthorized, and, consequently, cannot be deemed an innocent purchaser. In fact, Plaintiff-In-Intervention unequivocally covenants in the Agreement at Section 3.02, the following: “REMIC-Related Covenants. For as long as any 2007-AR4 REMIC shall exist, the Trustee shall act in accordance herewith to assure continuing treatment of such 2007-AR4 REMIC as a REMIC, and the Trustee shall comply with any directions of the Depositor or the Servicer to assure such continuing treatment.” RJN, Exh. A. See also, Section 11.01 of the Agreement:   “Intent of Parties. The parties intend that each 2007-AR4 REMIC shall be treated as a REMIC for federal income tax purposes and that the provisions of this Agreement should be construed in furtherance of this intent.” Id. See also, 26 U.S.C. §§ 860A–860G; see also Real Estate Investment Trusts. Securities Law Series, Vol. 29. Thomson West (2007): 6-22 (Late transfers to the trust result in forfeiting the pass through of taxation to the investors and subjects the trust to a 100% tax of the loan amount). Plaintiff-In-Intervention certainly cannot show it was without notice that its late acceptance of the instant loan was unauthorized by its Agreement.

[7] See, e.g., the odd case of a lower court (Appellate Term) that actually considered § 7-2.4 and found that a trustee could have apparent authority to bind the trust to the trustee’s unauthorized act: Feldman v. Torres (2011) 34 Misc.3d 47.

[8]People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7 (“…cases are not authority for propositions not considered therein.”).

[9] See Section 11.04 of the Agreement: “…no Certificateholders shall have any right to vote or in any manner otherwise control the operation and management of the Trust… No Certificateholder shall have any right by virtue of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon, under or with respect to this Agreement against the Depositor, the Trustee, the Servicer or any successor to any such parties…”

remic-registrations-p938-2012

Judicial Notice, A Misunderstood Tool

16 Jan


By Tony Sarabia
Published in Los Angeles Daily Journal January 3, 2013
Litigators often reach for doctrines such as res judicata or collateral estoppel to narrow
the scope of a case. Res judicata prevents re-litigation of the same claim that was
litigated in a prior case. Collateral estoppel prevents re-litigation of the same issue that
was decided in a prior case. These are powerful tools which may short circuit the
opposing side’s case or important issues in that case. Surprisingly, there is another tool
with potential power in the same league as that of res judicata and collateral estoppel,
but it is almost always used in its weakest form. While judicial notice of court records is
often requested, its scope and meaning is frequently misunderstood and it is rarely
used to prevent re-litigation of an issue.
A request for judicial notice is made under California Evidence Code Section 453.
Section 452(d) authorizes courts to take judicial notice of court records. Case law
follows the code in allowing judicial notice of court records. Duggal v. G.E. Capital
Communications Services, Inc., 81 Cal. App.4th 81, 86 (2000). Judicial notice may be
taken of records in another court’s file or in a court’s own files. Thornton v. Rhoden,
245 Cal. App. 2d 80, 96 n.17 (1966).
There are two vastly different kinds of judicial notice of court records. A request for
judicial notice of a court record, without more, only directs the court to acknowledge
the existence of documents in court files. For example, a court could take judicial notice
that an answer to a complaint has been filed. This type of judicial notice achieves
nothing with respect to the content of the documents. To continue with the example,
the answer might allege that the complaint is barred by the statute of limitations.
Simply requesting judicial notice of the answer does not compel the court to accept the
validity of the defense of the statute of limitations. This makes perfect sense, because
that defense has not been proved, it is only alleged. While this analysis is obvious with
respect to pleadings, it also applies to other documents in a court file – such as
contracts. A request to take judicial notice of a contract in the court’s file does not
achieve anything with respect to the content of that contract; it does not establish any
facts or findings.
But a party can seek a far more powerful type of judicial notice of court records – one
which does establish facts or findings that cannot be litigated again. This type of judicial
notice focuses on the content of a document and asks that the court be bound by that
content. To achieve this type of judicial notice, a party must determine what kinds of
documents are eligible for this more meaningful type of judicial notice. It must select
one of those eligible documents, and it must provide authority to the court to support
the request. The authority must go beyond the routine request for notice that a
document is in a court file.

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