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Quiet Title Strategies

4 Jul
Most people do not have a clear understanding about Quiet Title, because it means one thing to them and another thing in court. The common misconception about quiet title is that it is a thing that just happens, like the result of a magic bullet. In fact quiet title is a court process that begins with a lawsuit by the homeowner and ends with a court order declaring that the mortgage or deed of trust should be removed from the chain of title.
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The most typical use of quiet title claims is clearing the chain of title of recorded documents that mistakenly or fraudulently describe the wrong property. The use of quiet title against a mortgage or deed of trust does not generally get traction in a court of law.
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But the more recent strategy of attacking the assignment of mortgage and seeking nullification of that instrument has met with some success and it should succeed, because you are attacking the facial and substantive validity of that specific instrument and not the entire mortgage or deed of trust. That strategy merely attacks the technical requirements for creation and recording of an an instrument affecting title to real property and attacking the substantive validity of the assignment by revealing that the debt was not transferred to the assignee by a party who owned the debt.
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The current fad of proving unenforceability of the indebtedness does not provide the foundation for quiet title unless you can prove that that (a) the indebtedness never existed or (b) the debt has been satisfied. It is entirely possible for a court of law to determine that the mortgage or deed of trust cannot be enforced by the parties who initiated foreclosure. But that does not mean that the mortgage or deed of trust is a nullity. So winning the case on the debt against a particular party who sought to enforce it does not automatically mean that you proved a prima facie case that the debt was never or is not now subject to enforcement by anyone.
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The elements for quiet title are fairly simple. The lawsuit asks for a declaratory judgment finding, as a matter of fact and law, that the encumbrance is a nullity, which means that legally the encumbrance does not exist — not that it should not exist. In plain language that means that a judge finds that the mortgage or deed of trust does not secure any indebtedness owed by the owner of the property to the mortgagee on a mortgage or the beneficiary on a deed of trust.
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 The “mortgagee” or “beneficiary” includes legal successors to the named mortgagee on the mortgage or the named beneficiary (lender) on the deed of trust. Successfully attacking the assignment means that you have negated the assignment which returns the title to the mortgage to the previous party who might be the the original mortgagee or beneficiary or lender.
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Where MERS has been used as a buffer in the title chain legal practitioners should be aware that the MERS relationship to the original “lender” is tenuous at best and most probably nonexistent to pretenders who claim to be successors — because most loans were table funded without any legal or equitable relationship between MERS and the investment bank that funded the origination or acquisition of the loan. Since no transfer of beneficial interest or interest of a mortgagee legally exists without transfer of the debt, it is nearly impossible for anyone to show an assignment with a legal transfer of the debt from an owner of that debt.
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The only way the pretender lenders can succeed is by wearing down the homeowner who must be willing to expend considerable time, money and energy defending his property. They can do this by using legal arguments that come from legal presumptions a rising from the apparent facial validity of self serving documents they have fabricated, forged or robosigned to create the illusion of a legal chain of title.
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Securitization has opened many doors to homeowners who persistently and effectively challenge the parties who initiate foreclosures. It is now almost always true that the party who initiates a foreclosure is not the actual owner of the debt nor does that party represent a legal entity that owns the debt. Transfer of a mortgage without the debt has been stated by courts throughout the 50 states to be a “nullity,” which means that the transfer never legally occurred despite the writing on a face of a document purporting to be an assignment of mortgage.
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The word, “nullity” is what you are after and it probably only applies to the assignment. It probably will never be applied, despite arguments to the contrary, to the actual encumbrance except after a period of years after the attempts to foreclose have failed multiple times, it is evident that the the debt will never be enforced or is otherwise barred by the doctrine of latches or the statute of limitations.
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Thus strategically it is important to start off with an analysis of legal title performed by a title analyst who has education and training to do it. That normally means an attorney but it could mean a person who writes title policies or who assesses title risk for title insurance companies. After the analysis, then you need someone who can suggest strategies and tactics that can be reviewed and implemented by local counsel  or pro se with the guidance of local counsel using hybrid legal services.
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Tough Love: Stop Attacking Judges as Stupid or Corrupt. — Livinglies’s Weblog

4 Jul

Without naming names, I recently responded to an email insisting that I take judges to task for “bad rulings.” I’ve been a trial lawyer for more than 42 years, tried over 2,000 cases and I have reviewed the results of more than 10,000 foreclosure cases. While “bad rulings” are common they are neither produced by…

via Tough Love: Stop Attacking Judges as Stupid or Corrupt. — Livinglies’s Weblog

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Federal Judge Slams Bayview and Attorneys on Illegal “Modification” Maneuvering — Livinglies’s Weblog

4 Jul

The Lesson here is that the denial of modification presents and important opportunity to challenge the practices, authority and viability of claims by parties who seek to collect, enforce or administer loans. [This decision is dated 11/15/17. Check any future litigation or comparable decisions before using. ] The goal is foreclosure. There can be no…

via Federal Judge Slams Bayview and Attorneys on Illegal “Modification” Maneuvering — Livinglies’s Weblog

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)

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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)

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