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CASE LAW
"The main argument urged against it is founded upon the maxim, that 'a person cannot grant a thing
which he has not:' ille non habet, non dat; and many authorities are referred to at law to prove the
proposition, and many more might have been added from cases in equity, for equity no more than law
can deny it. The thing itself is an impossibility. It may, at once, therefore, be admitted, whenever a party
undertakes, by deed or mortgage, to grant property, real or personal, in presenti, which does not belong
to him or has no existence, the deed or mortgage, as the case may be, is inoperative and void, and this
either in a court of law or equity." Pennock v. Coe (1859), 64 U.S. (23 How.) 117, 127-128, 16 L.Ed.
436.
… by a mortgage or deed of trust on real property is restricted by statute.
Under California law, `the creditor must rely upon his security before
enforcing the debt.(Code Civ. Proc., §§ 580a, 725a, 726.) If the security is
insufficient, his right to a judgment against the debtor for the deficiency may
be limited or barred by sections 580a, 580b, 580d, or 726 of
theCode of Civil …
- in Rettner v. Shepherd, 1991
“A recorded assignment of note and deed of trust vests in the assignee all of the
rights, interests of the beneficiary (Musgrave v. Renkin, 180 Cal. 785 [183 P.
145]) including authority to exercise any power of sale given the beneficiary
(Civ. Code, § 858)…… The power of sale here derived from the instrument itself.
(Civ. Code, § 2932; McDonald v. Smoke Creek Live Stock, 209 Cal. 231).”
Indeed, a secured creditor must "proceed against the security before enforcing the underlying debt." (Security
Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 999.)
The deed of trust is accessory to the primary obligation — it is a mere incident to
the debt — and is not enforceable separate from the underlying debt. [See e.g., Civ.
Code § 2909; Adler v. Sargent (1895) 109 Cal. 42; 41 P. 799.] The assignment of the
underlying obligation carries with it the security of the deed of trust. [See e.g., Civ.
Code § 2936; Seidell v. Tuxedo Land Co. (1932) 216 Cal. 165, 170; 13 P.2d 686;
Domarad v. Fisher & Burke, Inc.,, 270 Cal.App.2d 543, 554.] An assignment of the
deed of trust without a transfer of the debt is, as the Supreme Court observed in
Adler, without effect and gives the assignee of the trust deed no rights. Adler v.
Sargent,, 109 Cal. 42, 48-49
If a foreclosure sale is void or it is otherwise inequitable, the tender requirement
may be waived. Standley v. Knapp, 113 Cal. App. 91, 102 (1931); Humboldt Sav.
Bank v. McCleverty, 161 Cal. 285, 291 (1911); see also 4 MILLER & STAR
CALIFORNIA REAL ESTATE %10:212 (3d ed.).
California foreclosure law by holding that statutory presumptions arising on issuance of
a trustee’s deed upon sale only apply to the adequacy of notices related to the sale, and
cannot be relied on by a third party purchaser at an otherwise invalid sale to claim the
status of bona fide purchaser.
In Bank of America v. La Jolla Group II, 129 Cal.App.4th 706 (2005), a trustee’s sale
was scheduled for November 12, 2004. On November 8, 2004, the borrowers tendered
reinstatement funds at a Bank of America branch, where an employee accepted
the payment and reinstated the loan. However, the trustee was never notified that the loan
had been reinstated and proceeded with the foreclosure sale, at which La Jolla Group II
was the successful bidder. The trustee issued a trustee’s deed upon sale to La Jolla Group
II, which was recorded. The trustee then notified La Jolla Group II of the mistake,
recorded a notice of rescission of trustee’s deed, and attempted to return the bid funds,
which La Jolla Group II refused to accept. In the resulting litigation, Bank of America
sought to cancel the trustee’s deed upon sale, and La Jolla Group II alleged that it was a
bona fide purchaser.
First, the court held that the trustee’s sale was invalid because reinstatement of the loan
deprived the trustee of the power to foreclose. Second, the court held that the
presumptions of Civil Code Section 2924 only apply to the notice requirements related to
a foreclosure sale. In so ruling, the court rejected the suggestion in Moeller v. Lien, 25
Cal.App.4th 822 (1994), that Section 2924’s presumptions provide more comprehensive
presumptions about the propriety of a foreclosure sale. Thus, even though a trustee’s
deed upon sale was issued and recorded, because the sale was invalid for reasons
unrelated to the notice requirements, La Jolla Group II could not rely on Section 2924 in
asserting it was a bona fide purchaser.
Both long and short preprinted trust deed forms are adhesion contracts, Wilson v.
San Francisco Fed. Sav. & Loan Assn. (1976) 62 Cal.App.3d 1, 7; 132 Cal.Rptr. 903;
Lomanto v. Bank of America (1972) 22 Cal.App.3d 663, 669; 99 Cal.Rptr. 442.]
Courts have held adhesion contracts unconscionable if they surprise the weaker,
adhering party with terms outside of that party’s reasonable expectation. [See e.g.,
A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486; 186 Cal.Rptr.
114.] In Lomanto, the Court stated that while the lender was not required to call
attention to a usual provision in a trust deed, the lender may have to accentuate an
unusual provision by oral disclosure, “print of distinctive size,” or “placing it in a
box with heavy borders.” (22 Cal.App.3d at 669-70.) In the context of trust deeds,
special adhesion questions arise with the short form trust deed. A borrower may be
extremely surprised by a term incorporated from a fictitious document of which the
borrower has no actual knowledge. Yet superficially, Civil Code § 2952 permits such
surprise. However, the statute can be harmonized with the court’s view that
borrowers should be relieved of the operation of unconscionable provisions as
expressed in cases like Lomanto.
F. Unfair Competition Law
The UCL prohibits "any unlawful, unfair or fraudulent" business practice. Cal. Bus. & Prof. Code § 17200. The statute "has
a broad scope that allows for `violations of other laws to be treated as unfair competition that is independently actionable'
while also `sweep[ing] within its scope acts and practices not specifically proscribed by any other law.'" Hauk v. JP
Morgan Chase Bank USA, 552 F.3d 1114, 1122 (9th Cir. 2009) (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 949 (2002)).
Because plaintiff's Complaint alleges that, inter alia, defendants aided and abetted the commission of fraudulent
concealment against plaintiff, it also states a claim under the UCL. Accordingly, the court will deny defendants' motion to
dismiss with respect to plaintiff's UCL claim.
Under California law, a claim for quiet titled must include (1) a description of the property that is the subject of the action,
(2) the title of the plaintiff as to which a determination under this chapter is sought and the basis of the title, (3) the
adverse claims to the title of the plaintiff against which a determination is sought (4) the date as of which the determination
is sought, and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. Cal. Civ. Proc. Code.
§ 761.020.
Under subd 3, title, to the extent required by this section, not only may, but must, be
tried in actions if provisions of statute extending remedy beyond cases where
conventional relation of landlord and tenant exist are to be judicially nullified. Kartheiser
v. Superior Court of Los Angeles County (1959, Cal App 2d Dist) 174 Cal App 2d 617,
345 P2d 135, 1959 Cal App LEXIS 1746.
Question of title is not triable in unlawful detainer action, but only question of right of
possession. Patapoff v. Reliable Escrow Service Corp. (1962, Cal App 2d Dist) 201 Cal
App 2d 484, 19 Cal Rptr 886, 1962 Cal App LEXIS 2618.
Broad questions of title may not be litigated in unlawful detainer action; though
purchaser at execution sale who proceeds in unlawful detainer action under provisions
of this section must prove his acquisition of title by purchase at sale, it is only to this
limited extent, as provided by statute, that title may be litigated in such proceeding.
Byrne v. Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178, 1963 Cal
App LEXIS 2099.
An allegation of due compliance with CC 2924, as authorized by 459, is not merely a
conclusion of law, but an allegation of fact which, if not denied, must be deemed to have
been admitted. Bank of America Nat’l Trust & Sav. Asso. v. McLaughlin Land &
Livestock Co. (1940, Cal App) 40 Cal App 2d 620, 105 P2d 607, 1940 Cal App LEXIS
150, cert den (1941) 313 US 571, 61 S Ct 958, 85 L Ed 1529, 1941 US LEXIS 686.
Summary proceeding in unlawful detainer is subject to control of equity in proper case;
hence, if defendant in such action possessed valid equitable rights in property that
would make it inequitable for plaintiff to proceed, defendant could, by seeking injunction
in quiet title suit pending between parties, prevent plaintiff from proceeding. Byrne v.
Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178, 1963 Cal App LEXIS
2099.
The sale process must closely adhere to the procedure set forth in Civil Code §§ 2924 et
sea.; “The statutory requirements must be strictly complied with, and a trustee’s sale based
on a statutorily deficient notice of default is invalid.” (Miller v. Cote, supra. 127 Cal.App.3d
888, 894.) A trustee is liable to the trustor for damages sustained from an “illegal, fraudulent
or willfully oppressive” foreclosure sale. Munger v. Moore, supra, 11 Cal.App.3d 1, 7.]
Normally, the trustor will attempt to stop or vacate a foreclosure sale based on an invalid
notice of default. (See Chapter III B 5 a, “Defective Notice of Default”, infra.) However, an
action for damages may be the only avenue of redress if the property has been sold to a
bona fide purchaser.
a. Liability for Deficient Notice
Although no case has held a trustee liable for damages for a deficient notice of default, a
variety of theories depending on the nature of the trustee’s failings would support causes of
action for damages. In any event, the trustor will likely have to show prejudice or an
impairment of rights as a result of the deficiency in the notice of default. (See U.S. Hertz. Inc.
v. Niobrara Farms (1974) 41 Cal.App.3d 68, 86; 116 Cal.Rptr. 44.) If the appropriate nexus
between the notice and the loss is established, the trustor may be able to show that (1) the
trustee intentionally failed to perform, or was negligent in performing, its duties under the trust
deed and statute; (2) the trustee engaged in negligent or intentional misrepresentation in
setting forth the information contained in the notice of default; (3) the trustee breached the
covenant of good faith and fair dealing which is implied in a trust deed (see Schoolcraft v.
Ross (1978) 81 Cal.App.3d 75; 1146 Cal.Rptr. 57); and (4) the trustee may have the duty as
agent of the trustor to inquire of the beneficiary to verify the accuracy of the information
contained in the notice of default and the trustor’s entitlement to a Spanish translation (but
see Civ. Code § 2924c(b)(1) providing that the trustee has no liability for failing to give a
Spanish language explanation of the right of reinstatement unless Spanish is specified on a
lien contract or unless the trustee has actual knowledge that the obligation was negotiated
principally in Spanish).
b. Liability for Deficient Sale
If the property is sold without compliance with notice requirements the trustee may be liable
for damages. The trustor must first establish that any damages were sustained. Since a sale
held without proper notice may be void, the trustor may suffer no damages because no sale
was actually effected. (Scott v. Security Title Ins. & Guar. Co.. supra. 9 Cal.2d 606, 613-14,
72 P.2d 143.) However, the trustor may be precluded from attacking the sale and recovering
the property from the purchaser if the sale was made to a bona fide purchaser for value and
without notice and the trustee’s deed recites that all notice requirements were met. (See
Chapter III F, “The Status of Bona Fide Purchaser or Encumbrancer’1, section 4, at p. 11132; F, at p. 111-40, infra.) As a result, the trustor will have incurred damage.
The trustee will be liable to the trustor for damages resulting from the trustee’s bad faith,
fraud or deceit (Scott v. Security Title Ins. & Guar. Co., supra, 9 Cal.2d 606, 611.) In Scott,
the trustee failed to post notice of the sale and then sold the property in satisfaction of the
debt. The sale was set aside because of the improper notice, and the trustee thereafter
properly sold the property but only for a nominal sum insufficient to pay the debt. The
beneficiary obtained the deficiency from a former owner who had assumed the debt and who
in turn sued the trustee for breach of contract and agency. The Supreme Court held that the
only valid sale was regularly conducted, and that the trustee had no liability for breach of
contract or agency for mistakenly performing the first sale which was declared a nullity. (9
Cal.2d at 612-14.) The court indicated that the only liability might be for negligence but that
the plaintiff could not recover since that theory had not been alleged. (9 Cal.2d at 614.)
Munger indicates that a trustee can be held liable for its negligence in the conduct of an
illegal sale. [See supra, 11 Cal.App.3d at 7 citing Civ. Code § 1708; Dillon v. Legg (1968) 68
Cal.2d 728; 69 Cal.Rptr. 72; Davenport v. Vaughn (1927) 137 S.E. 714, 716 (the trustee is
"charged with the duty of fidelity, as well as impartiality; of good faith and every requisite
degree of diligence; of making due advertisement; and giving due notice . . . . If, through
haste, imprudence, or want of diligence, his conduct was such as to advance the interest of
one person to the injury of another, he became personally liable to the injured party").]
c. Beneficiary’s Liability For Trustee’s Misconduct
The trustee is the common agent of the parties, and, as a result, a party to whom the trustee
owes a duty to conduct a fair and open sale may impute a breach of that duty to the
beneficiary. (Bank of Seoul & Trust Co. v. Marcione, supra, 198 Cal.App.3d 113, 120.)
Before proceeding to discuss the merits of the respective contentions
it is expedient that we review certain principles applicable to deeds of
trust. [1] Initially, we note that in California there is little practical
difference between mortgages and deeds of trust, that they perform
the same basic function, and that a deed of trust is "practically and
substantially only a mortgage with power of sale." (MacLeod v.
Moran, 153 Cal. 97, 99-100 [94 P. 604]; Bank of Italy etc. Assn. v.
Bentley, 217 Cal. 644, 657 [20 P.2d 940]; Hamel v. Gootkin, 202 Cal.
App.2d 27, 29-30 [20 Cal. Rptr. 372]; see Land Security and
Development (Cont. Ed. Bar) Part 1, §§ 1.1 and 1.2.) [2] Next we note
that although "there are no statutory provisions dictating the form or
stating the effect of deeds of trust" (Cont. Ed. Bar, supra, § 1.6),
deeds of trust are analogized to mortgages and the same rules are
generally applied to deeds of trust that are applied to mortgages.
(See Civ. Code, §§ 2920-2953, particularly § 2924; Bank of Italy etc.
Assn. v. Bentley, supra, at pp. 655-657; Sacramento Bank v. Alcorn,
121 Cal. 379, 383-384 [53 P. 813]; Hamel v. Gootkin, supra.)
[3-5] Consonant with the foregoing, we note the following established
principles: that a deed of trust is a mere incident of the debt it secures
and that an assignment of the debt "carries with it the security." (Civ.
Code, § 2936; Cockerell v. Title Ins. & Trust Co., 42 Cal.2d 284, 291
[267 P.2d 16]; Lewis v. Booth, 3 Cal.2d 345, 349 [44 P.2d 560];
Union Supply Co. v. Morris, 220 Cal. 331, 338-339 [30 P.2d 394];
Savings & Loan Soc. v. McKoon, 120 Cal 177, 179 [52 P. 305]; Hyde
v. Mangan, 88 Cal. 319, 327 [26 P. 180]); that a deed of trust is
inseparable from the debt and always abides with the debt, and it has
no market or ascertainable value, apart from the obligation it secures
(Buck v. Superior Court, 232 Cal. App.2d 153, 158 [42 Cal. Rptr. 527,
11 A.L.R.3d 1064]; Nagle v. Macy, 9 Cal. 426, 428; Hyde v. Mangan,
supra; Polhemus v. Trainer, 30 Cal. 685, 688); and that a deed of
trust has no assignable quality independent of the debt, it may not be
554*554 assigned or transferred apart from the debt, and an attempt
to assign the deed of trust without a transfer of the debt is without
effect. (Adler v. Sargent, 109 Cal. 42, 48 [41 P. 799]; Polhemus v.
Trainer, supra; Hyde v. Mangan, supra; Johnson v. Razy, 181 Cal.
342, 344 [184 P. 657]; Kelley v. Upshaw, 39 Cal.2d 179, 191-192
[246 P.2d 23].)[5]
It was improper to grant summary judgment in an unlawful detainer action instituted
under this section, where a supporting affidavit related facts concerning a transfer of title
not within the personal knowledge of the plaintiff concerning which he was incompetent
to testify. Kelliher v. Kelliher (1950, Cal App) 101 Cal App 2d 226, 225 P2d 554, 1950
Cal App LEXIS 1103.
The California Supreme Court held, in Le Francois v. Goel (2005) 35 Cal.4th
1094 (Le Francois), that even when Code of Civil Procedure section 1008 (section
1008) precludes a party from moving for reconsideration, a trial court has
inherent authority to correct an erroneous ruling on its own motion.
Where an indebtedness secured by a deed of trust covering real property has
been satisfied by the trustee's sale of the property on foreclosure for the full
amount of the underlying obligation owing to the beneficiary, the lien on the
real property is extinguished. (Civ. Code, § 2910; Streiffv. Darlington (1973) 9
Cal.2d 42, 45 [68 P.2d 728]; Duarte v. Lake Gregory Land and Water Co.,
supra, 39 Cal. App.3d 101, 104-105.) In such event, the creditor cannot
subsequently recover insurance proceeds payable for damage to the property
(Reynolds v. London etc. Ins. Co.(1900) 128 Cal. 16, 19-20 [60 P.
467]; Duarte v. Lake Gregory Land and Water Co., supra, 39 Cal. App.3d at
p. 105; Rosenbaum v. Funcannon (9th Cir.1962) 308 F.2d 680, 684-685), net
rent proceeds (Eastland S. & L. Assn. v. Thornhill & Bruce, Inc. (1968) 260
Cal. App.2d 259, 261-262 [66 Cal. Rptr. 901]), or damages for waste
(Schumacher v. 607*607 Gaines (1971) 18 Cal. App.3d 994 [96 Cal. Rptr.
223]). "[T]he purpose of the trustee's sale is to resolve the question of value
and the question of potential forfeiture through competitive bidding...."
(Hetland, Cal. Real Estate Secured Transactions (Cont. Ed. Bar 1970) p.
255.) In Smith v. Allen (1968) 68 Cal.2d 93, 95-96 [65 Cal. Rptr. 153, 436
P.2d 65], this court held that a nonjudicial foreclosure sale, if regularly held,
finally fixes the value of the property therein sold.
Here, the controlling unlawful detainer statute is subdivision (b)(3) of Code of
Civil Procedure section 1161a. (All further references to statutes are to the Code
of Civil Procedure unless otherwise indicated.) It provides that a person who
continues in possession following service of a notice to quit may be removed,
"Where the property has been sold in accordance with Section 2924 of the Civil
Code, under a power of sale contained in a deed of trust executed by such
person, or a person under whom such person claims, and the title under the sale
has been duly perfected."
(2) "To establish that he is a proper plaintiff, one who has purchased property at
a trustee's sale and seeks to evict the occupant in possession must show that he
acquired the property at a regularly conducted sale and thereafter `duly
perfected' his title. [Citation.]" (Vella v. Hudgins(1977) 20 Cal.3d 251, 255 [142
Cal. Rptr. 414, 572 P.2d 28]; see Cruce v. Stein (1956) 146 Cal. App.2d 688, 692
[304 P.2d 118]; Kelliher v. Kelliher (1950) 101 Cal. App.2d 226, 232 [225 P.2d
554]; Higgins v. Coyne (1946) 75 Cal. App.2d 69, 73 [170 P.2d 25]; Nineteenth
Realty Co. v.Diggs (1933) 134 Cal. App. 953*953 278, 288-289 [25 P.2d 522].)
One who subsequently purchases property from the party who bought it at a
trustee's sale may bring an action for unlawful detainer under subdivision (b)(3)
of section 1161a. (Evans v. Superior Court (1977) 67 Cal. App.3d 162, 169 [136
Cal. Rptr. 596].) However, the subsequent purchaser must prove that the
statutory requirements have been satisfied, i.e., that the sale was conducted in
accordance with section 2924 of the Civil Code and that title under such sale was
duly perfected. (Ibid.) "Title is duly perfected when all steps have been taken to
make it perfect, i.e., to convey to the purchaser that which he has purchased,
valid and good beyond all reasonable doubt. (Hockingv. Title Ins. & Trust
Co. (1951), 37 Cal.2d 644, 649 [234 P.2d 625, 40 A.L.R.2d 1238]), which
includes good record title (Gwin v. Calegaris (1903), 139 Cal. 384 [73 P. 851]),
..." (Kessler v.Bridge (1958) 161 Cal. App.2d Supp. 837, 841 [327 P.2d 241].)
Summary judgment is proper only if the affidavits in support of the moving
party would be sufficient to sustain a judgment in his favor and his opponent
does not by affidavit show such facts as may be deemed by the judge hearing
the motion sufficient to present a triable issue." (Stationers Corp. v. Dun &
Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal. Rptr. 449, 398 P.2d 785].)
Section 2929 of the Civil Code, though referring only to "the lien of
a mortgage" (italics added) and to the impairment of
"the mortgagee's security," (italics added) applies equally to a deed of trust,
since a mortgage with power of sale and a deed of trust are treated similarly
in California and both are considered as security interests protected from
impairment.[4] (Hetland, Cal. Real Estate Secured Transactions (Cont. Ed. Bar
1970) § 2.7, pp. 11-12; see American Sav. & Loan Assn. v. Leeds, supra, 68
Cal.2d 611, 614, fn. 2; U.S. Financial v. Sullivan, supra,37 Cal. App.3d 5, 15.)
QUIET TITLE IN THE FORECLOSURE CONTEXT: TENDER ISSUES
Under California law, a plaintiff seeking to quiet title in the face of a foreclosure
must allege tender or an offer of tender of the amount borrowed. See Arnolds
Management Corp v. Eischen, 158 Cal.App.3d 575, 578, 205 Cal.Rptr. 15
(1984). This may make Quiet Title a more difficult proposition in a foreclosure
case.
"National banks are instrumentalities of the Federal Government,created for a
public purpose, and as such necessarily subject to the paramount authority of the
United States."
In Kluge v. Fugazy, 145 AD2d 537, 536 NYS2d 92 [2nd Dept., 1988] the Court held that
the assignment of a mortgage without transfer of the debt is a nullity and a cause of
action for foreclosure must fail.
In Merritt v. Bartholick, 36 NY 44 [1867] the Court of Appeals held that as a mortgage is
but an incident to the debt which it is intended to secure (cites omitted ), the logical
conclusion is that a transfer of the mortgage without the debt is a nullity, and no interest
is assigned by it. The security cannot be separated from the debt, and exist
independently of it. This is the necessary legal conclusion, and recognized as the rule by
a long course of judicial decisions."
It should be noted that in MERSCORP, Inc. v. Romaine, 8 NY3d 90, 828 NYS2d 266
[2006], Justice Ciparick, in her concurring opinion specifically notes that the Court's
ruling left for another day the argument made by the County of Suffolk and various amici
"that MERS has violated the clear prohibition against separating a lien from its debt."
"`Title is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the
purchaser that which he has purchased, valid and good beyond all reasonable doubt[] [citation],
which includes good record title [citation], . . .' [Citation.]" (Stephens, Partain & Cunningham v.
Hollis (1987) 196 Cal.App.3d 948, 953.)
"Standing is a necessary component of subject matter jurisdiction." Rames v
Byrd, 521 US 811" Without standing the court has no jurisdiction in the case and
it must be dismissed upon request by the defense."
"Without standing there is no actual or judiciable controversy and courts will not
entertain such cases." Clifford S. v Superior Court, 45 Cal.Rptr.2d 333,335.
"If a party is found to lack standing, the court is shown to lack subject matter
jurisdiction to determine the cause… (A) Court lacks discretion to consider the
merits of a case over which it is without jurisdiction." Miss. S v L of Pardons &
Paroles, 896 A 2d 809,812 (Conn. 2006)
"The requirement of standing is a core component derived directly from The
Constitution. A plaintiff must allege personal injury fairly traceable to the
defendant's allegedly unlawful conduct and likely to be redressed by the
requested relief." Allen v. Wright, 468 U.S. Supreme Court 737, 751 (1984).
"Any ruling on motion or summary adjudication must be made on record that
parties have actually made and not upon one that is theoretically possible", State
ex rel. Macy v. Thirty Thousand Seven Hundred Eighty One Dollars & No / 100,
Okla. App. Div. 1, 865 P.2d 1262 (1993).
The sale process must closely adhere to the procedure set forth in Civil
Code §§ 2924 et seq.; “The statutory requirements must be strictly
complied with, and a trustee’s sale based on a statutorily deficient notice
of default is invalid.” (Miller v. Cote, supra. 127 Cal.App.3d 888, 894.) A
trustee is liable to the trustor for damages sustained from an “illegal,
fraudulent or willfully oppressive” foreclosure sale. Munger v. Moore,
supra, 11 Cal.App.3d 1, 7.] Normally, the trustor will attempt to stop or
vacate a foreclosure sale based on an invalid notice of default. (See
Chapter III B 5 a, “Defective Notice of Default”, infra.) However, an action
for damages may be the only avenue of redress if the property has been sold to
a bona fide purchaser.
The trustee will be liable to the trustor for damages resulting from the trustee’s
bad faith, fraud or deceit (Scott v. Security Title Ins. & Guar. Co., supra, 9 Cal.2d
606, 611.)
However, where title is acquired through proceedings described in Code of
Civil Procedure section 1161a, courts must make a limited inquiry into the
basis of the plaintiff's title. (Gonzalez v. Gem Properties, Inc. (1974) 37
Cal.App.3d 1029, 1035 [112 Cal.Rptr. 884].)
Munger indicates that a trustee can be held liable for its negligence in the
conduct of an illegal sale. [See supra, 11 Cal.App.3d at 7 citing Civ. Code §
1708; Dillon v. Legg (1968) 68 Cal.2d 728; 69 Cal.Rptr. 72; Davenport v.
Vaughn (1927) 137 S.E. 714, 716 (the trustee is "charged with the duty of
fidelity, as well as impartiality; of good faith and every requisite degree of
diligence; of making due advertisement; and giving due notice . . . . If, through
haste, imprudence, or want of diligence, his conduct was such as to advance the
interest of one person to the injury of another, he became personally liable to
the injured party").]
c. Beneficiary’s Liability For Trustees Misconduct
The trustee is the common agent of the parties, and, as a result, a party to
whom the trustee owes a duty to conduct a fair and open sale may impute a
breach of that duty to the beneficiary. (Bank of Seoul & Trust Co. v. Marcione,
supra, 198 Cal.App.3d 113, 120.)
However, the law also provides exceptions to the tender requirement, even in
cases of PMBs. For instance, where the sale is void because the trustee holding
the sale is not empowered to hold a sale on a property, then tender is not
required to set aside the trustee’s deed after sale because it is void and good
title did not transfer in the first instance. Bank of America v. LaJolla Group II.
Tender is also excepted in the case of fraud, where the equities of the case favor
the victim, even over a good faith purchaser for value. (CITE) Such exceptions
are easily rationalized in light of the need for society to depend on due process
and fairness.
Lo v. Jensen (2001) 88 Cal.App 4th 1093, 1095
A trustee’s sale tainted by fraud may be set aside.
Angell v. Superior Court (73 Cal.App. 4th 691)
Defective Notice of Trustee’s Sale rendered the sale VOID.
6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (85 Cal.App. 4th 1279)
Opening bid should have been $100,000 but the trustee mistakenly set it for
$10,000 and the successful bidder – Angels 6 big $10,001. The trustee refused
to deliver the trustee’s deed upon sale. Court held that a successful challenge
to a sale requires evidence of a defect in the sale procedures, causing prejudice
to the person attacking the sale. There was no defect in the procedure. The
trustee had to deliver the trustee’s deed upon sale!
Nguyen vs. Calhoun (105 Cal.App. 4th 428)
Absent defects in the foreclosure proceeding itself, the sale is valid and
conclusive ….
(1)
Defendant “seller/servicer” Ndex West and buyer Deutsche Bank
have not proved that the claim it was assigned in their Note and Deed of
Trust complied with code:
"The burden of proving an assignment falls upon the party
asserting rights thereunder. In an action by an assignee to
enforce an assigned right, the evidence must not only be
sufficient to establish the fact of assignment when that fact is in
issue, but the measure of sufficiency requires that the
evidence of assignment be clear and positive to protect an
obligor from any further claim by the primary oblige."
Cockerell v. Title Insurance & Trust Co. (1954) 42 Cal. 2d 284,'292
(2)
Plaintiffs assert that because these assignments are contested in this
case, in a judicial foreclosure defendants would need to meet the
requirements of CACI Jury Instruction No. 326, Assignment Contested. It
states:
Plaintiffs were not a party to the original contract. However,
Plaintiffs may bring a claim for breach of contract if it proves
that (name of assignor) transferred its rights under the contract
to Plaintiffs. This transfer is referred to as an assignment.
Plaintiffs must prove that (name of assignor) intended to
transfer its contract rights to Plaintiffs. In deciding (name of
assignor)'s intent, you should consider the entire transaction and
the conduct of the parties to the assignment.
The court also pointed out that in Seccombe v. Roe, 22 Cal.App. 139 [133 P. 507], the court had
quoted from Mersfelder v. Spring, and had declared that recitals in a trustee's deed do not
preclude an inquiry, in an equitable proceeding, into the fairness of a sale, or other matters which
on equity principles might entitle the injured party to relief.
And in Seidell v. Tuxedo Land Co., 1 Cal.App.2d 406, 408 [36 P.2d 1102], this court said that
recitals in trustees' 930*930 deeds "have been held to furnish prima facie evidence of the facts so
set forth" (citing Sorensen v. Hall, supra), apparently assuming that such recitals are not
conclusive in every case but may be controverted. That such recitals may be controverted is also
inferable from the language in Stevens v. Plumas Eureka etc. Co., 2 Cal.2d 493 [41 P.2d 927].
"Where there are no depositions, admissions, or affidavits the court
has no facts to rely on for a summary determination." Trinsey
v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647
STANDING
In mortgage foreclosure actions (as in all actions), the foreclosing party must have
standing to bring the action:
Standing to sue is critical to the proper functioning of the judicial system. It is
a threshold issue. If standing is blocked, the pathway to the courthouse is
blocked. …Standing to sue requires an interest in the claim at issue in the lawsuit
that the law will recognize as a sufficient predicate for determining the issue at the
litigant’s request….If a plaintiff lacks standing to sue, the plaintiff may not
proceed in the action.
plaintiff “bears the burden of demonstrating standing and must plead its components with
specificity.” Coyne, 183 F. 3d at 494; Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464 (1982). Should Plaintiffs fail to prove this
condition precedent, this Court ha s no discretionary function but to stop them at the gate and
dismiss the action.
LENDER HAS NO REMAINING INTEREST IN THE NOTE AND NO AUTHORITY TO
FORECLOSE.
42. On information and belief the Notes have been bundled with other notes and sold as
mortgage-backed securities or otherwise assigned and split from the Trust Deed.
43. When the note is split from the trust deed, “the note becomes, as a practical matter,
unsecured.” Restatment (Third) of Property (Mortgages) s 5.4 cmt.a (1997).
44. A person or entity only holding the trust deed suffers no default because only the Note holder
is entitled to payment. Id
45. “The security is worthless in the hands of anyone except a person who has the right to
enforce the obligation; it cannot be foreclosed or otherwise enforced.” Real Estate Finance Law
(Fourth) s 5.27 (2002).
46. For the foregoing reasons, Lender has no cognizable interest in the Property and no authority
to foreclose
This (Opposition to XXXX, Motion to XXXX) is made on the grounds that the
Complaint is to be construed so as to do justice1, and due to lack of experience Pro-Se
Complaints are to be liberally construed;2 “Because the complaint was dismissed for
failure to state a claim, we must take as true its handwritten, pro se allegations.” (see
Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964)); “. . . a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.” (see Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 102, 2L.Ed.2d 80).
The Deed of Trust a binding contract, no state shall impair a contract,3 and
Section 24 specifically states,
“Lender, at its option, may from time to time appoint a successor
trustee to any Trustee appointed hereunder by an instrument
executed and acknowledged by Lender and recorded in the office
of the Recorder of the county in which the Property is located. . . .
This procedure for substitution of trustee shall govern to all the
exclusion of all other provisions for substitution.”
As we see it, after the eviction is transferred to the superior court, a number of procedural
devices exist to facilitate accommodating the eviction action with the fraud action which
the Asuncions separately filed. A possibility, which we understand is frequently utilized
in other counties, is for the superior court to stay the eviction proceedings until trial of the
fraud action, based on the authority of Code of Civil Procedure section 526 which
permits a preliminary injunction to preserve the status quo on such grounds as irreparable
injury, multiplicity of legal actions, or unconscionable relative hardship.[1] (See,
e.g., Continental147*147 Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 [67 Cal. Rptr.
761, 439 P.2d 889], and see generally discussion of subject in 2 Witkin, Cal. Procedure
(2d ed. 1970) Provisional Remedies, § 47, p. 1496; § 73, pp. 1511-1512.) Bond would be
required to obtain such an injunction (Code Civ. Proc., § 529), which could be waived for
an indigent litigant(Conover v. Hall (1974) 11 Cal.3d 842, 851, 853 [114 Cal. Rptr. 642,
523 P.2d 682]). It has been held where foreclosure of a trust deed would moot a claim of
right under a deed, and the deed is attacked as a fraudulent conveyance, a preliminary
injunction is permitted to prevent foreclosure pending trial (Weingand v. Atlantic Sav. &
Loan Assn. (1970) 1 Cal.3d 806 [83 Cal. Rptr. 650, 464 P.2d 106]). Staying the eviction
here is analogous.
“Uncontested allegations of fact must be accepted as true.” Morris v.
National Cash Register, 44 SW 2nd 433, (1931).
When no affidavits are filed in opposition, the trial court is entitled to
accept as true the facts alleged in respondent's affidavits if "... such
facts are within the affiant's personal knowledge and [are ones] to
which he could competently testify...." Southern Pac. Co. v. Fish, 166
Cal.App.2d 353, 362, 333 P.2d 133.
“Silence can only be equated with fraud where there is a legal or
moral duty or where an inquiry left unanswered would be intentionally
misleading…” as per United States v. Tweel, 550 F.2d 297, citing
United States v. Prudden, 424 F.2d 1021 at 1032
“…failure to state the true facts when such statement is legally
required, to the detriment of the one relying upon such conduct…”
can be termed “fraud and deceit”, as per Atilus v. United States, 406
F.2d 694, at 698
“Silence is a species of conduct, and constitutes an implied
representation of the existence of facts in question, and the estoppel
therefrom is accordingly a species of estoppel by misrepresentation.
When silence is of such a character and under such circumstances
that it would become a fraud on the other party to permit the silent
party to deny what his silence has induced the other party to believe
and act upon, it will operate as an estoppel.” as per Carmine v.
Bowen, 64 A. 923
The Fourth Circuit in Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373 (4th Circ. 2006) clarified that a foreclosure firm
is attempting to collect a debt, even though the foreclosure file was in rem and they were attempting to foreclose on a deed
of trust. The debtor filed suit against the law firm that had filed the foreclosure action alleging several violations of the
FDCPA. Specifically the debtor alleged that the law firm failed to verify the debt, even though she had requested
verification in writing; the law firm continued its collection efforts even though the debt had been contested and that the
firm communicated with the debtor even though she was represented by counsel. Id. at 375.
The law firm filed a motion to dismiss arguing that it was not acting in connection with a “debt” and that it was not a “debt
collector” with in the definition of the statute. Id. Specifically, the law firm argued that it was a substitute trustee for a
deed of trust and that it was acting at the trustee, therefore, it was not a “debt collector”. However, the Fourth Circuit ruled
that the law firm was attempting to collect a debt and that it did fall under the definition of a debt collector. Specifically,
the Court stated that “[s]ince a foreclosure is a method of collecting a debt by acquiring and selling secured property to
satisfy a debt, those who engage in such foreclosures are included within the definition of debt collectors if they otherwise
fit the statutory definition.” Id. at 379, citing Shapiro & Meinhold v. Zartman, 823 P.2d 120 (Colo. 1992). Further, the
Court stated that while not every law firm filing foreclosure actions may fall under the FDCPA, it is well-established that
the Act applies to Lawyers “who ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of
litigation.” Id. at 379, citing Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489 (1995).
At the pleading stage, of course, a court must accept the facts alleged in a complaint as true.
(See Stevenson v.Superior Court (1997) 16 Cal.4th 880, 885[allega tions of complaint are deemed
true "for the limited purposeof determining whether the plaintiff has stated a viablecause of
action"]
Diane Johnson v. the Superior Court of Orange County and Wells Fargo Home
Mortgage, Court of Appeals, Fourth District
2) Judge Velasquez and Judge Firmat were not correct in denying Johnson a stay of foreclosure
proceedings. Johnson has, based on the facts alleged in the complaint, a viable cause of action for
postponement of any foreclosure sale until the lender complies with section 2923.5. The stay of
foreclosure must remain in effect until it is established that the lender has complied with section
2923.5. If further proceedings show the lender complied already with section 2923.5, the
foreclosure sale may take place as soon as it would otherwise be legally allowable. If those
proceedings show the lender has not yet complied with section 2923.5, it must comply and re-
record the notice of default. (Because the language of section 2923.5 conditions a notice of
default on compliance with section 2923.5, compliance is necessarily a prerequisite to filing a
valid notice of default.)
U.S. Constitution:
Section 1 - Each State to Honor all others
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.
"An unconstitutional act is not law; it confers no rights; it imposes no duties..." Norton v. Shelby
County 118 U.S. 425
"A conclusive presumption may be defeated where its application would impair a party's constitutionallyprotected liberty or property interests." Vladis v. Kline 412 US 441, 449 (1973); Cleveland Bd. of Ed. v.
La Fleur, 414 US 632, 639, 640 (1974)
"The state cannot diminish rights of the people." Hurtado v. People of the State of California,
110 U.S. 516.
"A statute does not trump the Constitution." People v. Ortiz, 32 Cal.App.4th at p. 292, fn. 2, 38 Cal.Rptr.2d
59.
". . . minimum requirements of due process includes. . . to cross examine any opposing witnesses ..."
Jeffries v. Olesen, D.C. Cal 1954, 121 F. Supp 463 [Emphasis added]
CALIF. CIV. CODE SEC. 3520. "No one should suffer by the act of another."
CALIF. CIV. CODE SEC. 3517. "No one can take advantage of his own wrong."
CALIF. CIV. CODE SEC. 3519. "He who can and does not forbid that which is done on his behalf, is
deemed to have bidden it."
"It has been long established that a State may not impose a penalty upon those who exercise a right
guaranteed by the Constitution." Frost &Frost Trucking Co. v. Railroad Comm'n of California, 271 U.S.
583.
"Where administrative action may result in loss of both property and life, or of all that makes life worth
living, any doubt as to the extent of power delegated to administrative officials is to be resolved in citizen's
favor, and court must be especially sensitive to the citizen's rights where proceeding is non-judicial."
United States v. Minker, 350 U.S.179(1956)
"...if the evidence is clear, positive, uncontradicted and of such a nature that it cannot rationally be
disbelieved the court must instruct that a fact so proved has been established as a matter of law. Blank v.
Coffin, 20 Cal.2d 457, 461, 126 P.2d 868." Roberts v. Del Monte Properties Co., 111 Cal.App.2d 69, 243
P.2d 914 (Cal.App. 1 Dist., 1952)
CALIF. CIV. CODE SEC. 3516. Acquiescence in error takes away the right of objecting to it.
"A claim, or defense, is frivolous if a proponent can present no
rational argument based upon the evidence or law in support of that
claim, or defense". [ Black's Law dictionary, 6th Edition, 1991]
[Emphasis added]
Unsigned requests for payment are invalid under California's Statute of Frauds, found at California Civil
Code § 1624
A. Standing
Plaintiffs failed to meet their evidentiary burden on the question of standing. The district court
implicitly treated standing as having been established by the allegations in the complaint.
However, because the elements of standing "are not mere pleading requirements but rather an
indispensable part of the plaintiff's case, each element must be supported in the same
way at as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of litigation." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Thus, at the
summary judgment stage of the proceedings, "the plaintiff can no longer rest on `mere
allegations,' but must `set forth' by affidavit or other evidence `specific facts,' which for purposes
of summary judgment motion will be taken to be true." Id. (quoting Fed.R.Civ.P. 54(e)).
In the present case, at the summary judgment stage, Plaintiffs did not establish standing through
affidavits or similar evidence. Neither did the Service, in its answer or in response to a request for
admissions, admit the allegations that support standing. Consequently, the district court erred in
asserting jurisdiction, and we have no choice but to vacate the district court's grant of summary
judgment. It matters not that we have come late to the party on this issue. "The jurisdictional
element of standing must be met in every case, and we must satisfy ourselves that this element
exists even if no party to the action raises a doubt regarding its presence." Bd. of Natural Res. v.
Brown, 992 F.2d 937, 945 (9th Cir. 1993).
To bring suit in federal court, a plaintiff must establish three constitutional elements of standing.
First, the plaintiff must have suffered an "injury in fact," the violation of a protected interest that is
(a) "concrete and particularized," and (b) "actual or imminent." Lujan v. Defenders of Wildlife, 504
U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, the plaintiff must establish a
causal connection between the injury and the defendant's conduct. Id. Third, the plaintiff must
show a likelihood that the injury will be "redressed by a favorable decision." Id. (quoting Simon v.
E. Kentucky Welfare Rights Org., 426 U.S. 26, 43, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)).
§ 18 Civ.
Notice is:
1. Actual — which consists in express information of a fact; or,
2. Constructive — which is imputed by law.
(Enacted 1872.)
2. Bona Fide Purchaser
A buyer is a bona fide purchaser if it bought property in good faith, for value, and had no
knowledge or notice of the asserted rights of another. (Melendrez v. D & I Investment, Inc. (2005)
127 Cal.App.4th 1238, 1251 [26 Cal.Rptr.3d 413].) "`The absence of notice is an essential
requirement . . . .' [Citation.]" (Gates Rubber Co. v. Ulman (1989) 214 Cal.App.3d 356, 364 [262
Cal.Rptr. 630] (Gates Rubber).) The notice necessary to defeat bona fide status may be
actual (express information of a fact), or constructive (imputed by law). (Civ. Code, § 18.) To have
constructive notice, a person must have notice or knowledge of the circumstances, "`which, upon
reasonable inquiry, would lead to that particular fact.' [Citations.]" (In re Marriage of
Cloney (2001) 91 Cal.App.4th 429, 436-437 [110 Cal.Rptr.2d 615]; see Civ. Code, § 19.)
"The act of recording creates a conclusive presumption that a subsequent purchaser has
constructive notice of the contents of the previously recorded document." (Gates Rubber, supra,
214 Cal.App.3d at p. 364; see Civ. Code, § 1213.) Additionally, a party may not ignore
information coming from outside the recorded chain of title, to the extent such information puts
the party on notice of information that reasonably brings into question the state Page 1279
of title reflected in the recorded chain of title. (Triple A Management Co. v. Frisone (1999) 69
Cal.App.4th 520, 531 [81 Cal.Rptr.2d 669] (Triple A).) Stated differently, a good faith purchaser
"is not entitled to interpret ambiguities in his own favor nor is he entitled to ignore reasonable
warning signs that appear in the recorded documents." (Id. At pp. 530-531.)
Whether a party is a good faith purchaser for value ordinarily is a question of fact that will not be
reversed on appeal unless it is unsupported by substantial evidence. (Triple A, supra, 69
Cal.App.4th at p. 536.) Under the substantial evidence standard of review we examine the entire
record to determine whether there is substantial evidence supporting the factual determinations of
the trial court (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874 [
197 Cal.Rptr. 925]), viewing the evidence and resolving all evidentiary conflicts in favor of the
prevailing party and indulging all reasonable inferences to uphold the judgment (Jordan v. City of
Santa Barbara, supra, 46 Cal.App.4th at pp. 1254-1255).
Bona Fide Purchaser, one who has purchased property for value without any notice of any defects in the
title of the seller. Walters v Calderon, 25 Cal.APP,3d 863, 102 Cal. Rptr. 89, 97. One who pays valuable
consideration, has no prior notice of outstanding rights of others, and acts in good faith. J. C. Equipment
Inc. v. Sky Aviation, Inc., Mo.APP., 498 S.w.2D 73, 75
Bona fide purchaser for value is one who, without notice of another’s claim or right to, or equity in,
property prior to his acquisition of title, has paid vendor a valuable consideration. Snuffin v. Mayo, 6
Wash,App. 525, 494 P.2d 497
One who buys property or to whom a negotiable document of title is transferred, in good faith and without
notice of any defense or claim to the property or document. UCC § 7-501, one who takes trust property
and without notice of breach of trust and is not knowingly part of an illegal transaction. Restatement,
Second, Trusts § 284; Uniform Probate Code § 2-202(3)
Black’s Law dictionary--Fifth Edition, p. 161
“The elements of a bona fide purchaser are payment of value, in good faith and without actual or
constructive notice of another's rights.” Soto v. Merrill, Cal: Court of Appeals, 4th Appellate Dist., Div.
3 2008
[1]
“No statute creates a presumption — conclusive or otherwise — for any purchaser — bona fide or
otherwise — that any recitals in a trustee's deed render effective a sale that had no contractual basis.”
Bank of America, NA v. LA JOLLA GROUP II, 28 Cal.Rptr.3d 825 (2005) a deed of trust can authorize
the inclusion, in a trustee's deed upon sale, of nonstatutory recitals on subjects other than notice and can
state that such recitals will be deemed presumptively true at the time of foreclosure. These can include a
recital that a default has occurred and has not been cured. The effect of such an authorization is uncertain in
light of section 2953, which prohibits waivers of trustors' rights, because the authorization might constitute
an improper waiver of a right to show that the recital is factually untrue. (Bernhardt, Cal. Mortgage and
Deed of Trust Practice (Cont.Ed.Bar 3d ed., 2004 update) § 7.58, pp. 521-522.) In this regard, we need only
832*832 notes that the deed of trust at issue in this case could not support a conclusive presumption that an
uncured default actually existed, even if the trustee's deed contained a recital to that effect. The deed of
trust authorized only a rebuttable presumption in favor of the truth of recitals in the trustee's deed: "Trustee
shall deliver to the [foreclosure] purchaser [a] trustee's deed conveying the Property so sold without any
covenant or warranty, expressed or implied. The recitals in the trustee's deed shall be prima facie
evidence of the truth of the statements made therein." (Italics added.) Here, any recital that an uncured
default existed was rebutted by the fact that the trustor and beneficiary entered into an agreement to cure
the default.
Is it a fact that a clearly established principle of law that an attorney must
represent a corporation, trust or ward of the court, it being incorporeal and a
creature of the law in which an attorney representing an artificial entity, such as
the Plaintiff, must appear with the Plaintiff’s corporate charter and law in his
hand at the inception of this case as a person acting as an attorney for a foreign
principal must be registered as stated in The Foreign Agents Registration Act (22
USC 612 et seq) and any failure to file a "Foreign Agents Registrations
Statement" goes directly to the jurisdiction and lack of standing to be before this
court, and is a felony pursuant to 18 USC 219, 951 since the conflict of law,
interest and allegiance is obvious and under the maxim of law “no one is above
the law”
“The practice of law cannot be licensed by any State. The practice of law is an occupation of
common right.” Sims vs Aherns, 271 S.W.720;
“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S. 426.
“Fraud vitiates everything,” Boyce v. Grundy, 3 Pet. 210. “Fraud vitiates the most solemn
contracts, documents and even judgments,” U.S. v. Throckmorton, 98 U.S. 61. Therefore
(whatever action) …..should be dismissed for fraud.
In Cox v. Helenius, 103 Wn.2d 383,*,693 P.2d 683 (1985), in which
the trustee knew that the right to foreclose was disputed the court held that
the trustee should have delayed foreclosure. As a result of the trustee's
failure to do so, the sale was held void.
The scope and nature of the trustee’s duties in a nonjudicial foreclosure
proceeding are exclusively defined by the deed of trust and the governing
statutes. No other common law duties exist. (I.E. Associates v. Safeco Title Ins.
Co. (1985) 39 Cal.3d 281, 287-288; Residential Capital v. Cal-Western
Reconveyance Corp. (2003) 108 Cal.App.4th 807, 827; see also Kachlon v.
Markowitz (2008) 168 Cal.App.4th 316, 335 [trustee in a nonjudicial foreclosure
proceeding is not a true trustee with fiduciary duties, but rather a common agent
for the trustor and beneficiary].)
State vs. Sutton, 63 Minn. 147, NW 262,30J.A.R. 630 AM. St 459 " When any
Court violates the Clean and unambiguous language of the Constitution , a
fraud is perpetrated and no one is bound to obey it". and also violates your
right to contract,(Case) Hale vs Henkle, 201 U.S. 43.279
Patton v. Diemer, 35 Ohio St. 3d 68; 518 N.E.2d 941; 1988). A judgment rendered by a court
lacking subject matter jurisdiction is void ab initio. Consequently, the authority to vacate a void
judgment is not derived from Ohio R. Civ. P. 60(B), but rather constitutes an inherent power
possessed by Ohio courts. I see no evidence to the contrary that this would apply to ALL courts.
“A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a
representative capacity, some real interest in the subject matter of the action. Lebanon
Correctional Institution v. Court of Common Pleas 35 Ohio St.2d 176 (1973).
“A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a
representative capacity, some real interest in the subject matter of an action.” Wells Fargo Bank,
v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (2008). It went on to hold, ” If
plaintiff has offered no evidence that it owned the note and mortgage when the complaint was
filed, it would not be entitled to judgment as a matter of law.”
(The following court case was unpublished and hidden from the public) Wells Fargo, Litton Loan
v. Farmer, 867 N.Y.S.2d 21 (2008). “Wells Fargo does not own the mortgage loan…
Therefore, the… matter is dismissed with prejudice.”
(The following court case was unpublished and hidden from the public) Wells Fargo v. Reyes,
867 N.Y.S.2d 21 (2008). Dismissed with prejudice, Fraud on Court & Sanctions. Wells Fargo
never owned the Mortgage.
(The following court case was unpublished and hidden from the public) Deutsche Bank v.
Peabody, 866 N.Y.S.2d 91 (2008). EquiFirst, when making the loan, violated Regulation Z of the
Federal Truth in Lending Act 15 USC §1601 and the Fair Debt Collections Practices Act 15 USC
§1692; "intentionally created fraud in the factum" and withheld from plaintiff… "vital
information concerning said debt and all of the matrix involved in making the loan".
(The following court case was unpublished and hidden from the public) Indymac Bank v. Boyd,
880 N.Y.S.2d 224 (2009). To establish a prima facie case in an action to foreclose a mortgage,
the plaintiff must establish the existence of the mortgage and the mortgage note. It is the law's
policy to allow only an aggrieved person to bring a lawsuit . . . A want of "standing to
sue," in other words, is just another way of saying that this particular plaintiff is not
involved in a genuine controversy, and a simple syllogism takes us from there to a
"jurisdictional" dismissal:
(The following court case was unpublished and hidden from the public) Deutsche Bank National
Trust Co v.Torres, NY Slip Op 51471U (2009). That "the dead cannot be sued" is a well
established principle of the jurisprudence of this state plaintiff's second cause of action for
declaratory relief is denied. To be entitled to a default judgment, the movant must establish,
among other things, the existence of facts which give rise to viable claims against the defaulting
defendants. “The doctrine of ultra vires is a most powerful weapon to keep private corporations
within their legitimate spheres and punish them for violations of their corporate charters, and it
probably is not invoked too often… “ Zinc Carbonate Co. v. First National Bank, 103 Wis. 125,
79 NW 229 (1899). Also see: American Express Co. v. Citizens State Bank, 181 Wis. 172, 194
NW 427 (1923).
(The following court case was unpublished and hidden from the public) Indymac Bank v.
Bethley, 880 N.Y.S.2d 873 (2009). The Court is concerned that there may be fraud on the part of
plaintiff or at least malfeasance Plaintiff INDYMAC (Deutsche) and must have "standing" to
bring this action.
(The following court case was unpublished and hidden from the public) Wells Fargo v. Reyes,
867 N.Y.S.2d 21 (2008). Case dismissed with prejudice, fraud on the Court and Sanctions
because Wells Fargo never owned the Mortgage.
(The following court case was unpublished and hidden from the public) Wells Fargo, Litton Loan
v. Farmer, 867 N.Y.S.2d 21 (2008). Wells Fargo does not own the mortgage loan. "Indeed, no
more than (affidavits) is necessary to make the prima facie case." United States v. Kis, 658 F.2d,
526 (7th Cir. 1981).
Lawyer responsible for false debt collection claim Fair Debt Collection Practices Act, 15
USCS §§ 1692-1692o, Heintz v. Jenkins, 514 U.S. 291; 115 S. Ct. 1489, 131 L. Ed. 2d 395
(1995). and FDCPA Title 15 U.S.C. sub section 1692.
In determining whether the plaintiffs come before this Court with clean hands, the primary factor
to be considered is whether the plaintiffs sought to mislead or deceive the other party, not
whether that party relied upon plaintiffs' misrepresentations. Stachnik v. Winkel, 394 Mich. 375,
387; 230 N.W.2d 529, 534 (1975).
"Indeed, no more than (affidavits) is necessary to make the prima facie case." United States v.
Kis, 658 F.2d, 526 (7th Cir. 1981). Cert Denied, 50 U.S. L.W. 2169; S. Ct. March 22, (1982).
“Silence can only be equated with fraud where there is a legal or moral duty to speak or when an
inquiry left unanswered would be intentionally misleading.” U.S. v. Tweel, 550 F.2d 297 (1977).
“If any part of the consideration for a promise be illegal, or if there are several considerations for
an un-severable promise one of which is illegal, the promise, whether written or oral, is wholly
void, as it is impossible to say what part or which one of the considerations induced the promise.”
Menominee River Co. v. Augustus Spies L & C Co., 147 Wis. 559 at p. 572; 132 NW 1118
(1912).
Federal Rule of Civil Procedure 17(a)(1) which requires that “[a]n action must be prosecuted in
the name of the real party in interest.” See also, In re Jacobson, 402 B.R. 359, 365-66 (Bankr.
W.D. Wash. 2009); In re Hwang, 396 B.R. 757, 766-67 (Bankr. C.D. Cal. 2008).
Mortgage Electronic Registration Systems, Inc. v. Chong, 824 N.Y.S.2d 764 (2006). MERS did
not have standing as a real party in interest under the Rules to file the motion… The declaration
also failed to assert that MERS, FMC Capital LLC or Homecomings Financial, LLC held the
Note.
Landmark National Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009). “Kan. Stat. Ann. § 60260(b) allows relief from a judgment based on mistake, inadvertence, surprise, or excusable
neglect; newly discovered evidence that could not have been timely discovered with due
diligence; fraud or misrepresentation; a void judgment; a judgment that has been satisfied,
released, discharged, or is no longer equitable; or any other reason justifying relief from the
operation of the judgment. The relationship that the registry had to the bank was more akin to that
of a straw man than to a party possessing all the rights given a buyer.” Also In September of
2008, A California Judge ruling against MERS concluded, “There is no evidence before the court
as to who is the present owner of the Note. The holder of the Note must join in the motion.”
LaSalle Bank v. Ahearn, 875 N.Y.S.2d 595 (2009). Dismissed with prejudice. Lack of standing.
Novastar Mortgage, Inc v. Snyder 3:07CV480 (2008). Plaintiff has the burden of establishing its
standing. It has failed to do so.
DLJ Capital, Inc. v. Parsons, CASE NO. 07-MA-17 (2008). A genuine issue of material fact
existed as to whether or not appellee was the real party in interest as there was no
evidence on the record of an assignment. Reversed for lack of standing.
Everhome Mortgage Company v. Rowland, No. 07AP-615 (Ohio 2008). Mortgagee was not the
real party in interest pursuant to Rule 17(a). Lack of standing.
In Lambert v. Firstar Bank, 83 Ark. App. 259, 127 S.W. 3d 523 (2003), complying with the
Statutory Foreclosure Act does not insulate a financial institution from liability and does not
prevent a party from timely asserting any claims or defenses it may have concerning a mortgage
foreclosure A.C.A. §18-50-116(d)(2) and violates honest services Title 18 Fraud. Notice to credit
reporting agencies of overdue payments/foreclosure on a fraudulent debt is defamation of
character and a whole separate fraud.
A Court of Appeals does not consider assertions of error that are unsupported by convincing legal
authority or argument, unless it is apparent without further research that the argument is well
taken. FRAUD is a point well taken! Lambert Supra.
No lawful consideration tendered by Original Lender and/or Subsequent Mortgage and/or
Servicing Company to support the alleged debt. “A lawful consideration must exist and be
tendered to support the Note” and demand under TILA full disclosure of any such consideration.
Anheuser-Busch Brewing Company v. Emma Mason, 44 Minn. 318, 46 N.W. 558 (1890).
"It has been settled beyond controversy that a national bank, under Federal law, being limited in
its power and capacity, cannot lend its credit by nor guarantee the debt of another. All such
contracts being entered into by its officers are ultra vires and not binding upon the corporation."
It is unlawful for banks to loan their deposits. Howard & Foster Co. vs. Citizens National Bank,
133 S.C. 202, 130 S.E. 758 (1926),
"Neither, as included in its powers not incidental to them, is it a part of a bank's business to lend
its credit. If a bank could lend its credit as well as its money, it might, if it received compensation
and was careful to put its name only to solid paper, make a great deal more than any lawful
interest on its money would amount to. If not careful, the power would be the mother of panics . .
. Indeed, lending credit is the exact opposite of lending money, which is the real business of a
bank, for while the latter creates a liability in favor of the bank, the former gives rise to a liability
of the bank to another. I Morse. Banks and Banking 5th Ed. Sec 65; Magee, Banks and Banking,
3rd Ed. Sec 248." American Express Co. v. Citizens State Bank, 181 Wis. 172, 194 NW 427
(1923). I demand under TILA full disclosure and proof to the contrary.
UCC § 2-106(4) "Cancellation" occurs when either party puts an end to the contract for breach
by the other and its effect is the same as that of "termination" except that the canceling party also
retains any remedy for breach of the whole contract or any unperformed balance.
"There is no doubt but what the law is that a national bank cannot lend its credit or become an
accommodation endorser." National Bank of Commerce v. Atkinson, 55 F. 465; (1893).
National Banks and/or subsidiary Mortgage companies cannot retain the note, “Among the assets
of the state bank were two notes, secured by mortgage, which could not be transferred to the new
bank as assets under the National Banking Laws. National Bank Act, Sect 28 & 56” National
Bank of Commerce v. Atkinson, 8 Kan. App. 30, 54 P. 8 (1898).
"A bank can lend its money, but not its credit." First Nat'l Bank of Tallapoosa v. Monroe, 135 Ga
614, 69 S.E. 1123 (1911).
It is not necessary for rescission of a contract that the party making the misrepresentation should
have known that it was false, but recovery is allowed even though misrepresentation is innocently
made, because it would be unjust to allow one who made false representations, even innocently,
to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis. 2d
166, 168 N.W.2d 201 (1969).
“A bank is not the holder in due course upon merely crediting the depositors account.” Bankers
Trust v. Nagler, 23 A.D.2d 645, 257 N.Y.S.2d 298 (1965).
"Any conduct capable of being turned into a statement of fact is representation. There is no
distinction between misrepresentations effected by words and misrepresentations effected by
other acts." (The seller or lender) “He is liable, not upon any idea of benefit to himself, but
because of his wrongful act and the consequent injury to the other party.” Leonard v. Springer,
197 Ill 532. 64 NE 299 (1902).
“If any part of the consideration for a promise be illegal, or if there are several considerations for
an un-severable promise one of which is illegal, the promise, whether written or oral, is wholly
void, as it is impossible to say what part or which one of the considerations induced the promise.”
Menominee River Co. v. Augustus Spies L & C Co.,147 Wis. 559 at p. 572; 132 NW 1118 (1912).
“The contract is void if it is only in part connected with the illegal transaction and the promise
single or entire.” Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis. 550, 279 NW 79
(1938).
“It is not necessary for rescission of a contract that the party making the misrepresentation should
have known that it was false, but recovery is allowed even though misrepresentation is innocently
made, because it would be unjust to allow one who made false representations, even innocently,
to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis.2d
166, 279 N.W. 79 (1938).
In a Debtor's RICO action against its creditor, alleging that the creditor had collected an unlawful
debt, an interest rate (where all loan charges were added together) that exceeded, in the language
of the RICO Statute, "twice the enforceable rate." The Court found no reason to impose a
requirement that the Plaintiff show that the Defendant had been convicted of collecting an
unlawful debt, running a "loan sharking" operation. The debt included the fact that exaction of a
usurious interest rate rendered the debt unlawful and that is all that is necessary to support the
Civil RICO action. Durante Bros. & Sons, Inc. v. Flushing Nat 'l Bank, 755 F.2d 239 (1985).
Cert. denied, 473 U.S. 906 (1985).
The Supreme Court found that the Plaintiff in a civil RICO action need establish only a criminal
"violation" and not a criminal conviction. Further, the Court held that the Defendant need only
have caused harm to the Plaintiff by the commission of a predicate offense in such a way as to
constitute a "pattern of Racketeering activity." That is, the Plaintiff need not demonstrate that the
Defendant is an organized crime figure, a mobster in the popular sense, or that the Plaintiff has
suffered some type of special Racketeering injury; all that the Plaintiff must show is what the
Statute specifically requires. The RICO Statute and the civil remedies for its violation are to be
liberally construed to affect the congressional purpose as broadly formulated in the Statute.
Sedima, SPRL v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
A violation such as not responding to the TILA rescission letter, no matter how technical, it has
no discretion with respect to liability. Holding that creditor failed to make material
disclosures in connection with loan. Title 15 USCS §1605(c) Wright v. Mid-Penn Consumer
Discount Co., 133 B.R. 704 (Pa. 1991).
Moore v. Mid-Penn Consumer Discount Co., Civil Action No. 90-6452 U.S. Dist. LEXIS 10324
(Pa. 1991). The court held that, under TILA's Regulation Z, 12 CFR §226.4 (a), a lender
had to expressly notify a borrower that he had a choice of insurer.
Marshall v. Security State Bank of Hamilton, 121 B.R. 814 (Ill. 1990) violation of Federal
Truth in Lending 15 USCS §1638(a)(9), and Regulation Z. The bank took a security
interest in the vehicle without disclosing the security interest.
Steinbrecher v. Mid-Penn Consumer Discount Co., 110 B.R. 155 (Pa. 1990). Mid-Penn violated
TILA by not including in a finance charge the debtors' purchase of fire insurance on their
home. The purchase of such insurance was a condition imposed by the company. The
cost of the insurance was added to the amount financed and not to the finance charge.
Nichols v. Mid-Penn Consumer Discount Co., 1989 WL 46682 (Pa. 1989). Mid-Penn
misinformed Nichols in the Notice of Right to Cancel Mortgage.
McElvany v. Household Finance Realty Corp., 98 B.R. 237 (Pa. 1989). debtor filed an
application to remove the mortgage foreclosure proceedings to the United States District Court
pursuant to 28 USCS §1409. It is strict liability in the sense that absolute compliance is required
and even technical violations will form the basis for liability. Lauletta v. Valley Buick Inc., 421 F.
Supp. 1036 at 1040 (Pa. 1976).
Johnson-Allen v. Lomas and Nettleton Co., 67 B.R. 968 (Pa. 1986). Violation of Truth-in-
Lending Act requirements, 15 USCS §1638(a)(10), required mortgagee to provide a
statement containing a description of any security interest held or to be retained or
acquired. Failure to disclose.
Cervantes v. General Electric Mortgage Co., 67 B.R. 816 (Pa. 1986). creditor failed to meet
disclosure requirements under the Truth in Lending Act, 15 U.S.C.S. § 1601-1667c and
Regulation Z of the Federal Reserve Board, 12 CFR §226.1
McCausland v. GMAC Mortgage Co., 63 B.R. 665, (Pa. 1986). GMAC failed to provide
information which must be disclosed as defined in the TILA and Regulation Z, 12 CFR §226.1
Perry v. Federal National Mortgage Corp., 59 B.R. 947 (Pa. 1986) the disclosure statement
was deficient under the Truth In Lending Act, 15 U.S.C.S. § 1638(a)(9). Defendant
Mortgage Co. failed to reveal clearly what security interest was retained.
Schultz v. Central Mortgage Co., 58 B.R. 945 (Pa. 1986). The court determined creditor
mortgagor violated the Truth In Lending Act, 15 U.S.C.S. § 1638(a)(3), by its failure to
include the cost of mortgage insurance in calculating the finance charge. The court found
creditor failed to meet any of the conditions for excluding such costs and was liable for
twice the amount of the true finance charge.
Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (Pa. 1986). Any misgivings creditors may
have about the technical nature of the requirements should be addressed to Congress or the
Federal Reserve Board, not the courts. Disclosure requirements for credit sales are governed by
15 U.S.C.S. § 1638 12 CFR § 226.8(b), (c). Disclosure requirements for consumer loans are
governed by 15 U.S.C.S. § 1639 12 CFR § 226.8(b), (d). A violator of the disclosure
requirements is held to a standard of strict liability. Therefore, a plaintiff need not show that the
creditor in fact deceived him by making substandard disclosures. Since Transworld Systems Inc.
have not cancelled the security interest and return all monies paid by Ms. Sherrie I. LaForce
within the 20 days of receipt of the letter of rescission of October 7, 2009, the lenders named
above are responsible for actual and statutory damages pursuant to 15 U.S.C. 1640(a).
Lewis v. Dodge, 620 F.Supp. 135, 138 (D. Conn. 1985);
Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066 (3rd Cir. 1992). Porter filed an
adversary proceeding against appellant under 15 U.S.C. §1635, for failure to honor her
request to rescind a loan secured by a mortgage on her home.
Rowland v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (1992) Even technical
violations will form the basis for liability. The mortgagors had a right to rescind the contract
in accordance with 15 U.S.C. §1635(c).
New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (1992). The court held that defendants were
entitled to rescind loan under strict liability terms of TILA because plaintiff violated
TILA's provisions.
Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567 (1990); TILA is a remedial
statute, and, hence, is liberally construed in favor of borrowers. The remedial objectives of TILA
are achieved by imposing a system of strict liability in favor of consumers when mandated
disclosures have not been made. Thus, liability will flow from even minute deviations from the
requirements of the statute and the regulations promulgated under it.
Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (1990) There was no dispute as to the
material facts that established that the debt collector violated the FDCPA. The court
granted the debtors' motion for summary judgment and held that (1) under 15 U.S.C.
§1692(e), a debt collector could not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt; Unfair Debt Collection Practices
Act.
Jenkins v. Landmark Mortg. Corp. of Virginia, 696 F.Supp. 1089 (W.D. Va. 1988). Plaintiff was
also misinformed regarding the effects of a rescission. The pertinent regulation states that "when
a consumer rescinds a transaction, the security interest giving rise to the right of rescission
becomes void and the consumer shall not be liable for any amount, including any finance charge."
12 CFR §226.23(d) (1)..
Laubach v. Fidelity Consumer Discount Co., 686 F.Supp. 504 (E.D. Pa. 1988). monetary
damages for the plaintiffs pursuant to the Racketeer Influenced and Corrupt Organization Act, 18
USC §1961. (Count I); the Truth-in-Lending Act, 15 USC §1601.
Searles v. Clarion Mortg. Co., 1987 WL 61932 (E.D. Pa. 1987); Liability will flow from even
minute deviations from requirements of the statute and Regulation Z. failure to accurately
disclose the property in which a security interest was taken in connection with a consumer credit
transaction involving the purchase of residential real estate in violation of 15 USCs §1638(a)(9).
and 12 CFR §226.18(m).
Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567, 1570 (S.D. Ga. 1990).
Congress's purpose in passing the Truth in Lending Act (TILA), 15 USCs §1601(a). was to assure
a meaningful disclosure of credit terms so that the consumer will be able to compare more readily
the various credit terms available to him. 15 USCs §1601(a). TILA is a remedial statute, and,
hence, is liberally construed in favor of borrowers.;
Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984). disclosure
statement violated 12 CFR §226.6(a).,
Wright v. Mid-Penn Consumer Discount Co., 133 B.R. 704 (E.D. Pa. 1991) Holding that
creditor failed to make material disclosures in connection with one loan;
Cervantes v. General Electric Mortgage Co., 67 B.R. 816 (E.D. Pa. 1986). The court found that
the TILA violations were governed by a strict liability standard, and defendant's failure to
reveal in the disclosure statement the exact nature of the security interest violated the
TILA.
Perry v. Federal National Mortgage, 59 B.R. 947 (E.D. Pa. 1986). Defendant failed to
accurately disclose the security interest taken to secure the loan.
Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066 (3rd Cir. 1992). Adversary
proceeding against appellant under 15 U.S.C. §1635, for failure to honor her request to
rescind a loan secured by a mortgage on her home. She was entitled to the equitable
relief of rescission and the statutory remedies under 15 U.S.C. §1640 for appellant's failure
to rescind upon request.
Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (Pa. 1986). Any misgivings creditors may
have about the technical nature of the requirements should be addressed to Congress or the
Federal Reserve Board, not the courts. Disclosure requirements for credit sales are governed by
15 U.S.C.S. § 1638 12 CFR § 226.8(b), (c). Disclosure requirements for consumer loans are
governed by 15 U.S.C.S. § 1639 12 CFR § 226.8(b), (d). A violator of the disclosure
requirements is held to a standard of strict liability. Therefore, a plaintiff need not show that the
creditor in fact deceived him by making substandard disclosures. Rowland v. Magna Millikin
Bank of Decatur, N.A., 812 F.Supp. 875 (1992),
Even technical violations will form the basis for liability. T he mortgagors had a right to
rescind the contract in accordance with 15 U.S.C. §1635(c). New Maine Nat. Bank v.
Gendron, 780 F.Supp. 52 (D. Me. 1992). The court held that defendants were entitled to
rescind loan under strict liability terms of TILA because plaintiff violated TILA's
provisions.
US Bankruptcy Court, Eastern Dist. Of California: Honorable Ronald H.
Sargis, Sacramento, Ca., May 20, 2010, Case No.10-21656-E-11 Ricky
Walker; To wit: “Under California law, to perfect the transfer of mortgage
paper as collateral the owner should physically transfer the Note to the
transferee. Bear v. Golden Plan of California, Inc., 829 F.2d 705,
709(9th Cir.1986). Without physical transfer, the sale of the Note could be
invalid as a fraudulent conveyance, Cal. Civil Code 3440, or as unperfected
Cal. Comm. Code 9313-9314, see Roger Bernhardt, California mortgage and
Deed of Trusts, and foreclosure litigation 1.26 (4th Ed. 2009)”. Since it is well
settled law that the Note and the Deed are inseparable, any and all assignees of
the Deed, as an incident to the Note, are invalid on their face and constitute
evidence of the fraud perpetrated upon Plaintiff, the People of California and this
Court.
Section 362(a) of the Bankruptcy Code provides that the filing of a bankruptcy
petition operates as a stay of collection and enforcement actions. 11 U.S.C. §
362(a). The purpose of the automatic stay is "to give the debtor a breathing spell
and to prevent a race by creditors against the debtor's assets until such time as
the bankruptcy court can sort out the respective interests of the debtor, the
bankruptcy estate, and creditors." In re Jones, 348 B.R. 715, 717-18 (Bankr. E.D. Va.
2006).
Section 362(d) allows the court, upon request of a "party in interest," to grant
relief from the stay, "such as terminating, annulling, modifying, or conditioning
such stay." 11 U.S.C. § 362(d)(1). The court may grant relief "for cause, including
the lack of adequate protection." Id. The court may also grant relief from the stay with
respect to specific property of the estate if the debtor lacks equity in the property and the
property is not necessary to an effective reorganization. 11 U.S.C. § 362(d)(2) "[a]ll
motions for relief from stay . . . are contested matters and are governed by FRBP 9014,
11 U.S.C. § 362[] and [the] Local Bankruptcy Rules." the following elements "must be
included in a motion for relief from stay: . . . (4) a description of the security
interest and its perfection; (5) a statement of the basis for the relief claimed . . . .
The specific facts constituting cause shall be set forth if a motion is brought for cause."
(Emphasis added.) Thus, this Court's rules of procedure require that each lift-stay motion
contain certain indispensable elements, the absence of which should result in a denial of
such motion, just like a complaint failing to state a claim would be subject to dismissal on
a 12(b)(6) motion.
As noted above, lift-stay motions are contested matters governed by, inter alia,
Rule 9014. Rule 9014, in turn, makes such motions subject to Rule 7017, which, in turn,
incorporates Fed. R. Civ. P. 17 providing that an "action must be prosecuted in the name
of the real party in interest." As previously noted, "[i]t is axiomatic that in federal courts a
claim may only be asserted by the real party in interest. Rule 7017 of the Federal Rules of
Bankruptcy Procedure incorporates the provisions of Rule 17 of the Federal Rules of
Civil Procedure. The purpose of Rule 17 is to ensure that the person bringing a lawsuit
has the right to enforce the asserted claim." In re Smith, 419 B.R. 622, 628 (Bankr. E.D.
Va. 2008)
Since a movant seeking relief from stay is seeking to exercise a right stayed by §
362(a), a movant for relief from stay bears the burden of proof that it has
standing to bring the motion. See, e.g., In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho
2009).
"To obtain stay relief, each Movant must have standing, and be the real party in
interest under Federal Rule of Civil Procedure 17." Id. at 398. "Standing" and "real
party in interest" are concepts that are related but not identical. Standing encompasses
two major components: "constitutional limitations on federal court jurisdiction and
prudential limitations on its exercise," Warth v. Seldin, 422 U.S. 490, 498 (1975), while
"real party in interest" is generally part of "standing," as discussed below.
Constitutional standing concerns whether the plaintiff's personal stake in the
lawsuit is sufficient to have a "case or controversy" to which the federal judicial
power may extend under Article III. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 559-60 (1992). Prudential standing includes the idea that a party must assert its own
claims, rather than another's. See, e.g., Warth, 422 U.S. at 499. The purpose of this rule is
to require that an action be brought in the name of the party who possesses the
substantive right being asserted under the applicable law. Smith, 419 B.R. at 629. Thus,
the requirement of Fed. R. Civ. P. 17, made applicable to stay relief motions by Rule
9014, "generally falls within the prudential standing doctrine." In re Wilhelm, 407 B.R. at
398; accord. In re Taylor, 252 B.R. 346 (Bankr. E.D. Va. 1999) (discussing Rule 17 and
"real party in interest" as part of "standing"); In re Dove, 199 B.R. 342 (Bankr. E.D. Va.,
1996) (applying Rule 7017 and finding lack of standing); In Re Sposa, 31 B.R. 307
(Bankr. E.D. Va. 1983) (similar).
Finally, to obtain relief in federal court, a party must meet both the constitutional
requirements (Article III) and the prudential requirements (including "real party in
interest") of standing. See, e.g., Morrow v. Microsoft Corp., 499 F.3d 1332, 1339 (Fed.
Cir. 2007).
Mortgage notes are commercial paper (whether negotiable or non-negotiable)
covered by the Uniform Commercial Code as adopted by each of the Fifty States,
including Virginia. Va. Code § 8.1A-101 et seq.; First Nat. Exchange Bank v. Johnson,
355 S.E.2d 326 (Va. 1987) When a party seeks to enforce a note against a debtor, the
debtor not only has the right, but also has the responsibility to demand production of the
note. See, e.g., Lambert v. Baker, 348 S.E.2d 214, 216-17 (Va. 1986) ("payor may protect
himself by demanding production of the instrument and refusing payment to any party
not in possession unless in an action on the obligation the owner proves his ownership; . .
. it is Jeff's responsibility to raise and establish this affirmative defense").
In re Wilhelm, 407 B.R. 392 (Bankr. Idaho 2009), where the bankruptcy court denied
several lift stay motions, holding that none of the several banks posing as secured
creditors actually had standing to enforce the mortgage notes against the debtors. Id. at
405.
Similarly, in In re Weisband, 4:09-bk-05175 (Bankr. Ariz., March 29, 2010), the court
denied a stay relief motion where the movant, even though in possession of the note
"failed to demonstrate that the Note is properly payable to [it]."
Among these other powers is ability of the trustee to avoid certain liens and transfers
avoidable by creditors under state law. E.g., Smith v. Am. Founders Fin., Corp., 365 B.R. 647
(S.D. Tex. 2007). The first of these, as enumerated under the Bankruptcy Code, is found in § 544.
This section is frequently referred to as the "strong-arm clause." E.g. In re Gandy, 299 F.3d 489,
495 (5th Cir. 2002). It is in this section that a trustee has the authority to avoid
unperfected security interests. E.g., W.C. Fore Trucking Co. v. Biloxi Prestress Concrete (In re
Biloxi [*675] Prestress Concrete), 98 F.3d 204, 207 (5th Cir. 1996). [**6] Section 544 states:
(a) The trustee shall have, as of the commencement of the case, and without regard to any
knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of
property of the debtor or any obligation incurred by the debtor that is voidable by-(1) a creditor that extends credit to the debtor at the time of the commencement of the case,
and that obtains, at such time and with respect to such credit, a judicial lien on all property on
which a creditor on a simple contract could have obtained such a judicial lien, whether or not
such a creditor exists;
11.U.S.C. § 544(a)(1). Essentially, § 544(a)(1) provides that a trustee may avoid any interest
voidable by a hypothetical judicial lien creditor. 3 Id. The trustee, therefore, steps not only into the
debtor's shoes, but certain creditors' shoes as well. The trustee's powers as a judicial lien creditor
are governed by state law. E.g. In re Clifford 566 F.2d 1023 (5th Cir. 1978).
3 The Bankruptcy Code defines "judicial lien" to mean a "lien obtained by judgment, levy,
sequestration, or other legal or equitable process or proceeding." 11 U.S.C. § 101(36).
Under Texas law, the Texas Business and [**7] Commerce Code provides that a security
interest is subordinate to the rights of a person that becomes a lien creditor before the security
interest is perfected. TEX. BUS. & COM. CODE § 9.317(a). A "lien creditor" is defined in the
Texas Business and Commerce Code to include "a trustee in bankruptcy from the date of the
filing of the petition." Id. at § 9.102(52)(C). Therefore, under Texas law, the moment Debtor filed
for bankruptcy, the Trustee became a lien creditor whose rights trump those holding unperfected
security interests. Accordingly, if AmPac and Tradition Bank are not properly perfected, the
Bankruptcy Code and Texas Business and Commerce Code grant the Trustee, as a hypothetical
lien creditor, rights superior to AmPac and Tradition Bank.
"An attorney for the plaintiff cannot admit evidence into the court. He is either an
attorney or a witness".
(Trinsey v. Pagliaro D.C.Pa. 1964, 229 F. Supp. 647)
Subject: Trinsey v Pagliaro, 229 F.Supp. 647: when you read it
you will find that it is THE case cited for FRCivP 12(b) (6).
Now, while what it says at 12(b) (6) is good, notice how I have
highlighted some items from the actual decision, it goes MUCH
further than 12(b) (6) does and we should also. Keep in mind the
two Maxims in Law that are opposite sides of the same coin:
Truth is Expressed in the Form of an Affidavit, & An Unrebutted
Affidavit stands as Truth in the Matter.
Now, while keeping these in mind, think about when someone like an attorney for
the IRS comes forward and "testifies" about how you did such-and-such. Are they a
First-Hand-Witness, or simply a "Statement of Counsel in Brief or Argument?"
Shut them down! Hit them with Trinsey and get the "Judge" to take official Judicial
Notice of it. If the "Judge" does not sustain your object, you need to immediately
file an oral "Affidavit of Prejudice" against the "Judge" as he has shown his
prejudice and then file the same Affidavit in writing into the record with witnesses
to the same. Once your Affidavits are filed, get a record of what has been filed and
show that you are the only one who has actually introduced FACTS into the case
and move for Summary Judgment upon the Facts... while reminding the "Judge"
that the ONLY thing he is to consider is the FACTS of the case ON THE
RECORD, that the opposing "counsel" has only been "enlightening" to the Court,
but not sufficient to rise to the level of FACT.
This applies both with Federal Rules of Evidence and State Rules of
Evidence.... there must be a competent first hand witness (a body).
There has to be a real person making the complaint and bringing
evidence before the court. Corporations are paper and can't
testify.
“Manifestly, [such statements] cannot be properly considered by us in
the disposition of [a] case.” United States v. Lovasco (06/09/77)
431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752,
"Under no possible view, however, of the findings we are considering
can they be held to constitute a compliance with the statute, since
they merely embody conflicting statements of counsel concerning
the facts as they suppose them to be and their appreciation of the law
which they deem applicable, there being, therefore, no attempt
whatever to state the ultimate facts by a consideration of which we
would be able to conclude whether or not the judgment was
warranted." Gonzales v. Buist. (04/01/12) 224 U.S. 126, 56 L. Ed.
693, 32 S. Ct. 463.
"No instruction was asked, but, as we have said, the judge told the
jury that they were to regard only the evidence admitted by him, not
statements of counsel", Holt v. United States, (10/31/10) 218 U.S.
245, 54 L. Ed. 1021, 31 S. Ct. 2,
"The prosecutor is not a witness; and he should not be permitted to
add to the record either by subtle or gross improprieties. Those who
have experienced the full thrust of the power of government when
leveled against them know that the only protection the citizen has is
in the requirement for a fair trial." Donnelly v. Dechristoforo,
1974.SCT.41709 <http://www.versuslaw.com> ¶ 56; 416 U.S. 637
(1974) Mr. Justice Douglas, dissenting.
"Care has been taken, however, in summoning witnesses to testify, to
call no man whose character or whose word could be successfully
impeached by any methods known to the law. And it is remarkable,
we submit, that in a case of this magnitude, with every means and
resource at their command, the complainants, after years of effort
and search in near and in the most remote paths, and in every
collateral by-way, now rest the charges of conspiracy and of gullibility
against these witnesses, only upon the bare statements of counsel.
The lives of all the witnesses are clean, their characters for truth and
veracity un-assailed, and the evidence of any attempt to influence the
memory or the impressions of any man called, cannot be successfully
pointed out in this record." Telephone Cases. Dolbear v. American
Bell Telephone Company, Molecular Telephone Company v.
American Bell Telephone Company. American Bell Telephone
Company v.. Molecular Telephone Company, Clay Commercial
Telephone Company v. American Bell Telephone Company, People’s
Telephone Company v. American Bell Telephone Company,
Overland Telephone Company v. American Bell Telephone
Company,. (PART TWO OF THREE) (03/19/88) 126 U.S. 1, 31 L. Ed.
863, 8 S. Ct. 778.
"Statements of counsel in brief or in argument are not sufficient for
motion to dismiss or for summary judgment," Trinsey v. Pagliaro, D.
C. Pa. 1964, 229 F. Supp. 647.
"Factual statements or documents appearing only in briefs shall not
be deemed to be a part of the record in the case, unless specifically
permitted by the Court" – Oklahoma Court Rules and Procedure,
Federal local rule 7.1(h).
Trinsey v Pagliaro D.C.Pa. 1964, 229 F. Supp. 647. "Statements of
counsel in brief or in argument are not facts before the court and are
therefore insufficient for a motion to dismiss or for summary
judgment." Pro Per and pro se litigants should therefore always
remember that the majority of the time, the motion to dismiss a case
is only argued by the opposing attorney, who is not allowed to
testify on the facts of the case, the motion to dismiss is never argued
by the real party in interest.
"Where there are no depositions, admissions, or affidavits the court
has no facts to rely on for a summary determination." Trinsey v.
Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.
Frunzar v. Allied Property and Casualty Ins. Co. (Iowa 1996)† 548
N.W.2d 880 Professional statements of litigants attorney are treated
as affidavits, and attorney making statements may be crossexamined regarding substance of statement. [And, how many of
those Ass-Holes have "first hand knowledge"? NONE!!!]
Porter v. Porter (N.D. 1979 ) 274 N.W.2d 235 ñ The practice of an
attorney filing an affidavit on behalf of his client asserting the status of
that client is not approved, inasmuch as not only does the affidavit
become hearsay, but it places the attorney in a position of witness
thus compromising his role as advocate.
Deyo v. Detroit Creamery Co (Mich 1932) 241 N.W.2d 244 ñ
Statutes forbidding administering of oath by attorney's in cases in
which they may be engaged applies to affidavits as well.
Farmers and Miners Bank v. Bluefield
National Bank, 11 F 2d 83, 271 U.S. 669.
“In the
federal
that
courts,
it
is
well
established
a
national bank has not power to lend its credit to
another by becoming surety, indorser, or guarantor
for him.”
Bowen v. Needles Nat. Bank, 94 F 925 36 CCA
553, certiorari denied in 20 S.Ct 1024, 176 US 682,
44 LED 637. "A national bank has no power to lend
its credit to any person or corporation.”
Zinc Carbonate Co. v. First National Bank,
103 Wis 125, 79 NW 229.
American Express Co. v.
Citizens State Bank, 194 NW 430 “The doctrine of
ultra
vires
private
is
a
most
corporations
powerful
within
weapon
their
to
keep
legitimate
spheres and to punish them for violations of their
corporate charters, and it probably is not invoked
too often…”
Barnsdall Refining Corn. v. Birnam Wood Oil
Co.. 92 F 26 817.
"Any false representation of
material facts made with knowledge of falsity and
with intent that it shall be acted on by another in
entering into contract, and which is so acted upon,
constitutes 'fraud,' and entitles party deceived to
avoid contract or recover damages."
Leonard v. Springer 197 Ill 532. 64 NE 301.
"Any
conduct
capable
of
being
turned
into
a
statement of fact is representation. There is no
distinction between misrepresentations effected by
words
acts."
and
misrepresentations
effected
by
other
Guardian
Agency
v.
Guardian
Mut.
Savings
Bank, 227 Wis 550, 279 NW 83. “The contract is void
if it is only in part connected with the illegal
transaction and the promise single or entire.”
Whipp v. Iverson, 43 Wis 2d 166. “It is not
necessary for rescission of a contract that the
party
making
the
misrepresentation
should
have
known that it was false, but recovery is allowed
even though misrepresentation is innocently made,
because it would be unjust to allow one who made
false representations, even innocently, to retain
the
fruits
of
a
bargain
induced
by
such
representations.”
F& PR v. Richmond, 133 SE 898; 151 Va 195.
"When a contract is once declared ultra vires, the
fact that it is executed · does not validate it,
nor can it be ratified, so as to make it the basis
of suitor action, nor does the doctrine of estoppel
apply."
Howard & Foster Co. v. Citizens Nat'l Bank
of Union, 133 SC 202, 130 SE 759(1926) "It has been
settled beyond controversy that a national bank,
under federal Law being limited in its powers and
capacity, cannot lend its credit by guaranteeing
the debts of another. All such contracts entered
into by its officers are ultra vires…"
(Public Law 106–122). To me, this is very good evidence that promissory notes created for the purpose of buying property have been
directly exchanged for FRN's and those notes are what in fact paid the seller.
In
reference
sentence,
3-302,
under
the
the
note
3-305,
3-306
and
3-306
since
promise
or
order
is
they've
(3-104e)
converted
claim
to
and
into
the
after
a
proceeds
please
and
3-305
instrument
to
to
there
an
they
draft/check.
and
read:
3-308.
UCC
Why
cannot
indorse
it
a holder
of
the
a
in
The
"pay
3-306
3-106d
do
3-106d.
Doesn't
recovery
not
be
instrument
3-104e,
to
say
counterclaim
due
note
the
we
instrument?
last
course if
is
an
order
of"
have
rights
But
related
to your state statutorily UCC.
When the note is split from the deed of trust, “the note becomes, as a practical matter, unsecured.”
RESTATEMENT (THIRD) OF PROPERTY (MORTGAGES) § 5.4 cmt. a (1997).
A person holding only a note lacks the power to foreclose because it lacks the security, and a person
holding only a deed of trust suffers no default because only the holder of the note is entitled to payment
on it. See RESTATEMENT (THIRD) OF PROPERTY (MORTGAGES) § 5.4 cmt. e (1997).
“Where the mortgagee has ‘transferred’ only the mortgage, the transaction is a nullity and his ‘assignee,’
having received no interest in the underlying debt or obligation, has a worthless piece of paper.” 4
RICHARD R. POWELL, POWELL ON REAL PROPERTY, § 37.27[2] (2000).
Assignment omitting reference to debt.
An assignment of the mortgage security, apart
from the debt, is a nullity.18 And this appears to be so without reference
to whether the mortgagee has the legal title. If he has the latter, he can in some states transfer it without
the debt,10 but the mortgage lien, that is, the right to proceed against the land as security, can exist only
in favor of the holder of the debt secured.20
It has been decided in a number of cases, apparently, that a transfer or assignment in terms of the
"mortgage," is insufficient to transfer the debt secured, and is therefore a nullity, in the absence of a
specific transfer of the debt, or of the note or bond given for the debt.21 These decisions purport to be
based on the principle above referred to, that a transfer of the "mortgage" without the debt is a nullity.
The law of real property and other interests in land, Volume 3
By Herbert Thorndike Tiffany
US SUPREME COURT SAYS IN
CARPENTER V. LONGAN, 83 U. S. 271 (1872)
The note and mortgage are inseparable; the former as essential, the latter as an incident. An
assignment of the note carries the mortgage with it, while an assignment of the latter alone is
a nullity.
citing Jackson v. Blodget, 5 Cowan 205; Jackson v. Willard, 4 Johnson 43
B. PROOF OF CLAIM - CASE LAW - A BANK MUST PROVIDE
THE ORIGINAL "WET INK" SIGNATURE NOTE WHEN
DEMANDED.
1. STATE STREET BANK AND TRUST COMPANY v. HARLEY
LORD
851 SO. 2ND 790 (2003)
2. W.H. DOWNING v. FIRST NATIONAL BANK OF LAKE CITY
81 SO. 2ND 586 (1955)
3. NATIONAL LOAN INVESTORS, L. P. v. JOYMAR
ASSOCIATES
767 SO. 2ND 549,551 (2000)
5. DASMA INVESTMENTS, LLC v. REALTY ASSOCIATES
FUND III
459 F. SUPP. 2D 1294 (2006)
6. SHELTER DEVELOPMENT GROUP, INC. v. MMA OF
GEORGIA
50 BR 588,590 BANKRUPTCY COURT (1985)
7. FLORIDA STATUTES 90.953 - (2002)
8. BANKRUPTCY ACT OF 1914 SECTION 30(1) - PROOF OF
CLAIM DEMANDS FOR PROOF CAN ONLY BE BROUGHT BY
CONTRACT
C. UNIVERSAL POSTAL UNION - PAGES 73, 74, 80, 96, 103, 186,
195
D. TITLE18 USC SECTION 7
E. JACKSON v. MAGNOLIA - 20 HOW 296, 315, 342 US
F. SUPLEMENTAL RULES OF ADMIRALTY - FOUND IN 28 USC Rule 55, AND 56 - DEFAULT AND SUMARY JUDGEMENTS
G. TITLE18 USC PART 1 CHAPTER 1 SECTION 11 PAGE 13 DEFINES FOREIGN GOVERNMENT.
H. TITLE 18 USC CHAPTER 1 SECTION 7(1) - MARITIME
JURISDICTION
I. TITLE 15 USC CHAPTER 9-A - WEATHER MODIFICATION
N. TITLE 12 USC CHAPTER 21 - BANKING ASSOCIATIONS
O. FEDERAL RULES OF EVIDENCE 201(d)
P. UCC 3-603 - TENDER OF PAYMENT
Q. UCC 3-503 (c) - NOTICE OF DISHONOR
R. MODERN MONEY MECHANICS - HOW BANKS CREATE
MONEY
WITHOUT RISK.
S. MEMORANDUM OF LAW
No License needed to practice law, non-attorney can represent another as next
of friend, Litigants may be assisted by unlicensed layman during judicial
proceedings. ....
REFERENCE COURT CASES
Picking v. Pennsylvania R. Co. 151 Fed. 2nd 240; Pucket v. Cox 456 2nd 233. Pro se pleadings are to be considered
without regard to technicality; pro se litigants pleadings are not to be held to the same high standards of perfection as
lawyers. Platsky v. C.I.A. 953 F.2d. 25. Additionally, pro se litigants are to be given reasonable opportunity to remedy the
defects in their pleadings. Reynoldson v Shillinger 907F .2d 124, 126 (10th Cir. 1990); See also Jaxon v Circle K. Corp.
773 F.2d 1138, 1140 (10th Cir. 1985) (1)
2. Haines v. Kerner (92 S. Ct. 594). The respondent in this action is a non-lawyer and is moving forward in Propria
persona.
3. NAACP v. Button (371 U.S. 415); United Mineworkers of America v. Gibbs (383 U.S. 715); and Johnson v. Avery 89 S.
Ct. 747 (1969). Members of groups who are competent non-lawyers can assist other members of the group achieve the
goals of the group in court without being charged with "Unauthorized practice of law."
4. Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar (377 U.S. 1); Gideon v. Wainwright 372 U.S. 335;
Argersinger v. Hamlin, Sheriff 407 U.S. 425. Litigants may be assisted by unlicensed layman during judicial proceedings.
5. Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases
6. Federal Rules Civil Proc., Rule 17, 28 U.S.C.A. "Next Friend" A next friend is a person who represents someone who is
unable to tend to his or her own interest...
7. Oklahoma Court Rules and Procedures, Title 12, sec. 2017 (C) "If an infant or incompetent person does not have a duly
appointed representative he may sue by his next friend or by a guardian ad litem."
8. Mandonado-Denis v. Castillo-Rodriguez, 23 F3d 576 (1st Cir. 1994) Inadequate training of subordinates may be basis
for 1983 claim.
9. Warnock v. Pecos County, Tex., 88 F3d 341 (5th Cir. 1996) Eleventh Amendment does not protect state officials from
claims for prospective relief when it is alleged that state officials acted in violation of federal law.
10. Title 42 U.S.C. Sec. 1983, Wood v. Breier, 54 F.R.D. 7, 10-11 (E.D. Wis. 1972). Frankenhauser v. Rizzo, 59 F.R.D.
339 (E.D. Pa. 1973). "Each citizen acts as a private attorney general who ‘takes on the mantel of sovereign’,"
11. Oklahoma is a "Right to Work" State! Bill SJR1! Its OK to practice God`s law with out a license, Luke 11:52, God`s
Law was here first! "There is a higher loyalty than loyalty to this country, loyalty to God" U.S. v. Seeger, 380 U.S. 163,
172, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965)
12. "The practice of law can not be licensed by any state/State. Schware v. Board of Examiners, United States
Reports 353 U.S. pgs. 238, 239. In Sims v. Aherns, 271 S.W. 720 (1925) "The practice of law is an occupation of common
right." A bar card is not a license, its a dues card and/or membership card. A bar association is that what it is, a club, A
association is not license, it has a certificate though the State, the two are not the same........ ..
(2) Under the legal theories that purport to support non-judicial foreclosure, it is said that non judicial foreclosure is a matter of
private contract and not state action. Thus, the theory goes, parties are free to contract amongst themselves for authority to sell
the property when the loan is reported by some party (alleging to be the beneficiary under the Deed of Trust). So anything
the Trustee does that is wrong is really a matter of breach of contract, not violation of due process. If the Trustee on the deed of
trust lacks authority, if the beneficiary is out of business and some other party is alleging it is now the new beneficiary, if anyone
with or without knowledge alleges that the loan is in default and they are wrong or acting wrongfully, it is a matter of private
contract, not subject to the rules of civil procedure governing the conduct of lawsuits in state or Federal Court. It is a contract
authorizing “self-help”. Thus I conclude that the homeowner is equally entitles to utilize self-help to preserve his interest in
his real property. Of course filing a notice of intent to preserve interest in real property, a notice of non-compliance with
statute, or some other instrument that clouds title could force the conversion to a judicial foreclosure where the Trustee
and beneficiary would be required to step forward and reveal the true holder in due course, account for the flow of the
funds paid thus far, etc. But adding the force of Federal Law (TILA, RESPA and HOEPA), and applicable state laws on
deceptive lending practices, and applicable common law to the permission to use self-help gives the homeowner greater
power than the entities that seek to use self-help to foreclose. By filing a Qualified Written Request, Federal Law requires
an answer and resolution. Barring that resolution, and using thecommon law doctrine of tacit procuration as a tool of
enforcement at the end of the QWR, the homeowner has a legal right under color of state and federal law to file an
instrument or reconveyance as attorney in fact for the “beneficiary” of record — forcing the “pretender lender” to either
back off or prove their case.
REMEMBER, YOUR GOAL IS NOT TO ALLEGE THAT YOU DON’T OWE THE MONEY AT ALL. YOUR GOAL IS TO ALLEGE
THAT IF YOU DO OWE MONEY IT IS NOT TO THE TRUSTEE OR THE PARTY PRETENDING TO BE THE BENEFICIARY.
BASED UPON THE SEC FILINGS THERE IS PROBABLE CAUSE TO BELIEVE THAT YOUR LOAN WAS HANDLED AND
TRANSFERRED, SOLD, SLICED AND DICED MANY TIMES. DESPITE THE CURRENT TREND OF COUNTRYWIDE AND
OTHERS TO SAY THIS INFORMATION IS CONFIDENTIAL, THERE ARE VERY FEW JUDGES THAT WOULD AFFIRM THAT
YOU HAVE NO RIGHT TO KNOW THE IDENTITY OF YOUR REAL LENDER. YOUR POINT IN GOING TO COURT IS NOT TO
SAY THAT YOU AUTOMATICALLY WIN AND THEY LOSE. YOUR POINT IS TO SAY THAT YOU WISH TO BE HEARD ON
THE MERITS OF THE DEFENSES, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS YOU HAVE AND THAT YOU WANT
TO HAVE THE RIGHT OF DISCOVERY ALL UNDER THE RULES OF CIVIL PROCEDURE.
Sent from my iPad
"Even when the person who makes the constitutionally required "Oath or affirmation" is a lawyer, the only function that she performs in
giving sworn testimony is that of a witness.", " The Fourth Amendment requires that arrest warrants be based "upon probable cause,
supported by Oath or affirmation" -- a requirement that may be satisfied by an indictment returned by a grand jury, but not by the mere
filing of criminal charges in an unsworn information signed by the prosecutor. GO>Gerstein v. Pugh, 420 U.S. 103, GO>117 (1975); see also
GO>Coolidge v. New Hampshire, 403 U.S. 443 (1971)." Kalina v. Fletcher, 522 U.S. 118 (1997) verified
Take a look at FRCP Rule 60 (b) (3) (4) Void judgments, Fraud, Mistake . The fraud lies in that their foreign, copyright statutes/codes/rules
are all corporate and theie charges do not aply to and cannot reach us, so it appears that even by their own rules everything they do is void
Defendant U.S. Bank, N.A., as Trustee for the LXS2007-4N Trust (“U.S. Bank”), seeks dismissal under Federal Rule of Civil
Procedure 12(b)(6) of a complaint filed by plaintiff homeowner Henry Botelho. Specifically, U.S. Bank claims that Botelho cannot
state a claim for rescission of his mortgage loan under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., unless he
alleges a present ability to tender the loan proceeds. As discussed in further detail in the Order, such an allegation is not
necessary for Botelho’s case to survive the pleading stage.
Accordingly, U.S. Bank’s motion is denied.
Hat tip to Boot Camp Grad Carmen Dellutri http://www.ca11.uscourts.gov/opinions/ops/
200814991.pdf
In Re Hwang, 396 B.R. 757 (U.S.B.C., 2008) "Hence, 'a defect in standing cannot be
waived; it must be raised, either by the parties or by the court, whenever it becomes
apparent"; Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619 (Missouri Court of
Appeals, 2009), "Lack of standing cannot be waived and may be considered by the court
sua sponte.". “Plaintiff has the burden of establishing its standing”. Novastar Mortgage,
Inc v. Snyder 3:07CV480 (2008).
LaSalle Bank Natl. Assn. v Ahearn (59 AD3d 911), the Court held that the
assignment must be effective prior to commencement of the action. An assignee
of such a mortgage does not have standing to foreclose unless the assignment is
complete at the time the action is commenced (see Bankers Trust Co. v Hoovis,
263 AD2d 937, 938 [1999];
An assignment of a mortgage does not have to be in writing and can be effective
through physical delivery of the mortgage (see Flyer v Sullivan, 284 App Div 697,
699 [1954]). However, if it is in writing, the execution date is generally controlling
and a written assignment claiming an earlier effective date is deficient unless it is
accompanied by proof that the physical delivery of the note and mortgage was, in
fact, previously effectuated (see Bankers Trust Co. v Hoovis, 263 AD2d at 938).
“The plaintiff has no standing to maintain this action” see Citigroup Global
Markets Realty Corp. v Randolph Bowling, 25 Misc 3d 1244[A], 2009 NY Slip Op
52567[U] [2009].
“One without a pecuniary interest in the mortgage loan is not an obligee under
the debt and thus, has no standing to foreclose ab initio.” See Watkins v. Bryant
(1891) 91C 492, 27 P 77
"MERS never held the promissory note, thus its assignment of the deed of trust
to Ocwen separate from the note had no force." 284 S.W.3d at 624; see also In
re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009), In re Vargas, 396 B.R. 511,
517 (Bankr. C.D. Cal. 2008) "
.” If MERS is only the mortgagee, without ownership of the mortgage instrument,
it does not have an enforceable right. See Vargas, 396 B.R. 517 "[w]hile the note
is 'essential,' the mortgage is only 'an incident' to the note" Carpenter v. Longan,
16 Wall. 271, 83 U.S. 271, 275, 21 L. Ed 313 (1872). A transfer of interest in the
Deed of Trust alone is void.
Further, several courts have recently acknowledged that MERS is not
and cannot be the owner of the underlying note and therefore could
not transfer the note, the beneficial interest in the deed of trust, or
foreclose upon the property secured by the deed. See In re
Foreclosure Cases, In re Vargas, 396 B.R. 511, 520 (Bankr. C.D. Cal.
2008) ; Landmark Nat’l Bank v. Kelser, 216 p.3d 158 (Kan. 2009) ;
Lasalle Bank v. Lamy, 824 N.Y.S2d 769 (N.Y. Sup. Ct. 2006) .
“[f]oreclosure of a mortgage may not be brought by one who has no title to it” Kluge v
Fugazy, (145 AD2d 537, 538 [1988]).
“When a court is deciding a motion for summary judgment, it can search the
record and, even in the absence of a cross motion, may grant summary judgment
to a non-moving party “(CPLR 3212[b]; Dunham v Hilco Constr. Co., Inc., 89
NY2d 425 [1996]).
>> "I did NOT "understand", - if and when I did sign anything, and you have to prove I did understand". (See Garrett v.
Moore McCormack Co.)
>>
>> "An Appearance induced by Fraud (legal coercion, physical duress, or fictitious party) has no efficacy" (Stultz v. Stultz,
94A.2d 527, 24 N.J.Super, 354, 6 C.J.S. §18)
>>
>> per Court Rule 12 (b) (1) "MOTION TO DISMISS due to lack of jurisdiction. (Do NOT touch the issue)
>>
>> "Holding or detaining beyond 48 hours without "charging" or "booking" is unlawful" per COUNTY OF RIVERSIDE vs.
McLAUGHLIN 111 S.Ct 1661 (1991)
>>
>> 1. U.S. vs. IKE KOZMINSKY et al 487 US 931, 934 (no involuntary servitude)
>>
>> 2. GARRETT vs. MOORE-McCORKACK Co. 317 U.S. 238 (no full understanding = no meeting of minds = no intent)
>>
>> 3. COUNTY OF RIVERSIDE vs. McLAUGHLIN 111 S.Ct 1661 (1991) (No incarceration beyond 48 hours without
"charging" or "booking")
>>
>> 4. MIRANDA vs. ARIZONA 384 U.S. 436 "You have the right to remain silent (and NOT make "Appearance" by a
statement) or the court will appoint a Lawyer for you, who will make an "Appearance" for you and grant the Court
"Jurisdiction" for you.
>>
>> Note: We must file with Court:
>> 1. "OBJECTION TO JURISDICTION" (failure to (object] reserve your rights,- waives your rights).
>>
>> 2. "DEMAND TO DISMISS" due to lack of jurisdiction (no consent to use "Code") and denial of "Due Process"
therefore, due to no "consent". (per Court Rule 12 (b) (1) MOTION TO DISMISS -no jurisdiction)
>>
In any judicial proceeding, the moving party has the burden of proof of demonstrating that the court has subject matter jurisdiction over the
matters and parties before it. See the following authorities:
Scott v. Sandford, 60 U.S. 393 (1856)
Security Trust Co. v. Black River National Bank, 187 U.S. 211 (2002)
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)
Hague v. Committee for Industrial Organization Et. Al., 307 U.S. 496 (59 S.Ct. 954, 83 L.Ed. 1423 (1939)
United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 36454 L.Ed. 2d 376 (1977)
Chapman v. Houston Welfare Rights Organization Et. Al., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed. 2d 508 (1979)
Cannon v. University Chicago Et. Al., 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed. 2d 560 (1979)
Patsy v. Board Regents State Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)
Merrill Lynch v. Curran Et Al., 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182, 50 U.S.L.W. 4457 (1982)
Insurance Corporation Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492, 50 U.S.L.W. 4553
(1982)
Matt T. Kokkonen v. Guardian Life Insurance Company America, 128 L.Ed.2d 391, 62 U.S.L.W. 4313 (1994)
Subject matter jurisdiction requires:
1.
A competent witness or notarized affidavit demonstrating an injury by two witnesses.
2.
A statutory (if applies) or common law basis for a remedy of the injury.
3.
The court has in personam jurisdiction over both parties.
Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of
judgment by way of writ of habeas corpus. [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]
“Natural born” Article II, Section 4 of the Constitution
No person except a natural born citizen, or a citizen of the United States, at the time of the
adoption of this Constitution, shall be eligible to the office of President;
John A. Bingham, chief framer of 14th amendment wrote: “every human being born
within the United States of parents not owing allegiance to any foreign sovereignty
is, in the language of the Constitution itself, a natural born citizen.”
John A. Bingham, chief framer of 14th amendment in 1866
American Law and Procedure, Vol 13, page 137, 1910:
"This word `person' and its scope and bearing in the law, involving, as it does, legal fictions and also apparently natural beings, it is difficult
to understand; but it is absolutely necessary to grasp, at whatever cost, a true and proper understanding to the word in all the phases of its
proper use ... A person is here not a physical or individual person, but the status or condition with which he is invested... not an individual
or physical person, but the status, condition or character borne by physical persons... The law of persons is the law of status or condition."
F.S.101(3) - The word "person" includes individuals, children, firms,
associations, joint adventures, partnerships, estates, trusts, business trusts,
syndicates, fiduciaries, corporations, and all other groups or combinations.
F.S. 760.02 Definition (6) "Person" includes an individual, association,
corporation, joint apprenticeship committee, joint-stock company, labor union,
legal representative, mutual company, partnership, receiver, trust, trustee in
bankruptcy, or unincorporated organization; any other legal or commercial
entity; the state; or any governmental entity or agency.
26 U.S.C.79 (6) Fiduciary - The term "fiduciary" means a guardian, trustee,
executor, administrator, receiver, conservator, or any person acting in any
fiduciary capacity for any person.
26 U.S.C. 7701 – Definitions - (a) When used in this title, where not
otherwise distinctly expressed or manifestly incompatible with the
intent thereof - (1) Person - The term ''person'' shall be construed to
mean and include an individual, a trust, estate, Partnership,
association, company or corporation.
26 U.S.C. 7343 - Definition of term ''person'' The term ''person'' as used
in this chapter [Chapter 75] includes an officer or employee of a
corporation, or a member or employee of a partnership, who as such
officer, employee, or member is under a duty to perform the act in
respect of which the violation occurs
16 U.S.C. 5502 (7) The term ''person'' means any individual (whether or not a
citizen or national of the United States), any corporation, partnership,
association, or other entity (whether or not organized or existing under the laws
of any State), and any Federal, State, local, or foreign government or any entity
of any such government.
U.C.C. - ARTICLE 1- GENERAL PROVISIONS - PART 2
1-201. General Definitions. (30) "Person" includes an individual or an organization (See Section 1-102).
26 CFR §301.6671-1 Rules for application of assessable penalties
[Code of Federal Regulations] [Title 26, Volume 17, Parts 300 to 499] [Revised as of April 1, 2000]
From the U.S. Government Printing Office via GPO Access [CITE: 26CFR301.6671-1] [Page 402]
TITLE 26--INTERNAL REVENUE - Additions to the Tax and Additional Amounts--Table of Contents
Sec. 301.6671-1 Rules for application of assessable penalties. (b) Person defined. For purposes of subchapter B of chapter
68, the term ``person'' includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer,
employee, or member is under a duty to perform the act in respect of which the violation occurs.
26 CFR 301.7701-6 Definitions; person, fiduciary
Title
26:
§ 301.7701-6
Internal
Revenue
- PART
301—PROCEDURE
AND
ADMINISTRATION
Definitions; person, fiduciary.
Person. The term person includes an individual, a corporation, a partnership, a trust or estate, a joint-stock company, an association, or a
syndicate, group, pool, joint venture, or other unincorporated organization or group. The term also includes a guardian, committee, trustee,
executor, administrator, trustee in bankruptcy, receiver, assignee for the benefit of creditors, conservator, or any person acting in a fiduciary
capacity.
Black's Law Dictionary, 4th Edition, p 1300
A person is such, not because he is human, but because rights and duties are ascribed to him. The person is the legal subject or substance
of which the rights and duties are attributes. An individual human being considered as having such attributes is what lawyers call a "natural
person." Pollock, First Book of Jurispr. 110. Gray, Nature and Sources of Law, ch. II.
Black's Law Dictionary, 4th Ed., p 1300
A county is a person in a legal sense, Lancaster Co. v. Trimble, 34 Neb. 752, 52 N.W. 711; but a sovereign is not; In re Fox, 52 N.Y. 535, 11
Am.Rep. 751; U.S. v. Fox 94 U.S. 315, 24 L.Ed. 192 ....
[Black's Law Dictionary, 4th Ed., p 1300]
Spooner v. McConnell, 22 F 939 @ 943:
"The sovereignty of a state does not reside in the persons who fill the different departments of its government, but in the People, from
whom the government emanated; and they may change it at their discretion. Sovereignty, then in this country, abides with the constituency,
and not with the agent; and this remark is true, both in reference to the federal and state government."
[Spooner v. McConnell, 22 F 939 @ 943]
Glass v. Sloop Betsey, 3 Dall. (U.S.) 6 (1794):
"... Our government is founded upon compact. Sovereignty was, and is, in the people"
[Glass v. Sloop Betsey, 3 Dall. (U.S.) 6 (1794)]
Lansing v. Smith, 4 Wend (N. Y.) 9 (1829), 21 Am.Dec. 89:
"People of a state are entitled to all rights which formerly belong to the King, by his prerogative."
4 Wheat 402:
"The United States, as a whole, emanates from the people... The people, in their capacity as sovereigns, made and adopted the
Constitution..."
Luther v. Borden, 48 U.S. 1, (1849) 12 L.Ed 581 :
"... The governments are but trustees acting under derived authority and have no power to delegate what is not delegated to them. But the
people, as the original fountain might take away what they have delegated and intrust to whom they please. ...The sovereignty in every state
resides in the people of the state and they may alter and change their form of government at their own pleasure."
Yick Wo v. Hopkins, 118 U.S. 356 (1886), page 370:
"While sovereign powers are delegated to ... the government, sovereignty itself remains with the people.." Yick Wo is a powerful antidiscrimination case. You might get the impression that the legislature can write perfectly legal laws, yet the laws cannot be enforced
contrary to the intent of the people. It's as if servants do not make rules for their masters. It's as if the Citizens who created government
were their masters. It's as if civil servants were to obey the higher authority. You are the higher authority of Romans 13:1. You as ruler are
not a terror to good works per Romans 13:3. Imagine that! Isn't it a shame that your government was surrendered to those who are a terror
to good works? Isn't it a shame that you enlisted to obey them?
Julliard v. Greenman: 110 U.S. 421 (1884):
"There is no such thing as a power of inherent sovereignty in the government of the United States .... In this country sovereignty resides in
the people, and Congress can exercise no power which they have not, by their Constitution entrusted to it: All else is withheld."
Wilson v. Omaha Indian Tribe 442 U.S. 653, 667 (1979):
"In common usage, the term 'person' does not include the sovereign, and statutes employing the word are ordinarily construed to exclude
it."
U.S. v. Cooper, 312 U.S. 600,604, 61 S.Ct 742 (1941):
"Since in common usage the term `person' does not include the sovereign, statutes employing that term are ordinarily construed to
exclude it."
U.S. v. United Mine Workers of America, 330 U.S. 258 67 S.Ct 677 (1947):
"In common usage, the term `person' does not include the sovereign and statutes employing it will ordinarily not be construed to do so."
[U.S. v. Cooper, 312 U.S. 600,604, 61 S.Ct 742 (1941)]
U.S. v. General Motors Corporation, D.C. Ill, 2 F.R.D. 528, 530:
"In common usage the word `person' does not include the sovereign, and statutes employing the word are generally construed to exclude
the sovereign."
Church of Scientology v. US Department of Justice (1979) 612 F2d 417 @425:
"the word `person' in legal terminology is perceived as a general word which normally includes in its scope a variety of entities other than
human beings., see e.g. 1, U.S.C. para 1."
Perry v. US, 294 U.S. 330 (1935): - "In United States, sovereignty resides in people... the Congress cannot invoke the sovereign
power of the People to override their will as thus declared",
16 American Jurisprudence 2d, Constitutional law, Sovereignty of states 281 [Legal encyclopedia]:
"The original thirteen states existed prior to the adoption of the Federal Constitution and before that time possessed all the attributes of
sovereignty. All these attributes except those surrendered by the formation of the Constitution and the amendments thereto have been
retained. But the sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in
the Constitution, and it is subject to the restraints and limitations of the Constitution.
"New states, upon their admission into the Union, become invested with equal rights and are subject only to such restrictions as are
imposed upon the states already admitted. There can be no state of the Union whose sovereignty or freedom of action is in any respect
different from that of any other state. There can be no restriction upon any state other than one prescribed upon all the states by the
Federal Constitution. Congress, in admitting a state, cannot restrict such state by bargain. The state, by so contracting with Congress, is
in no way bound by such a contract, however irrevocable it is stated to be. It is said that subject to the restraint and limitations of the
Federal Constitution, the states have all the sovereign powers of independent nations over all persons and things within their respective
territorial limits."
PRIMARY CAUSE OF ACTION – THE DEED OF TRUST IS NULL
QUIET TITLE IS THEREFORE REMEDY TO THAT NULLITY
1. Between July to August 2006, a now-bankrupt Countrywide Home Loans Inc. in conjunction with US Bank
N.A., illegally decoupled (separated) ownership of a note,which listed Countrywide Home Loans Inc., –
from ownership of the Arizona-recorded Deed of Trust, which in contrast listed the ‘beneficiary’ as
MERS. (Maricopa County Recorder #2006-10000). This now-bankrupt Countrywide Home Loans Inc. note
was created in the name a previous owner of Plaintiff’s property at _____________.
2. During this origination period, Countrywide Home Loans Inc. and US Bank N.A. well knew long-standing
black letter mortgage law – the 1872 US Supreme Court precedent Carpenter v. Longan, 83 U.S. 271, at
274, inter alia, which states any separation of the Note from the Deed of Trust is a Nullity.
“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of
the note carries the mortgage with it, while an assignment of the latter alone is a nullity”.
3. In the last 24 months, Carpenter v. Longan, 83 U.S. 271, at 274 has been repeatedly used as
foundational precedent throughout this county, as the basis for illegal nullity in numerous courts including the
Kansas Supreme Court in Landmark Nat’l Bank v. Kessler, 216 P.3d 158 (2009); and the Supreme Court of
Arkansas in Mortgage Electronic Registration Systems. Inc. v. Southwest Homes of Arkansas, 2009 WL
723182 (2009), inter alia, and many others.
COUNT I
QUIET TITLE, A.R.S. § 12-1101, et seq.
4. Plaintiff repeats, re-alleges, and incorporates by reference the foregoing paragraphs.
5. Plaintiff holds title to its subject property at _________________.
6. Plaintiff is credibly informed and believes that these non-real party(ies) in interest Defendants make some
claim adverse to Plaintiff.
7. A null security agreement is unenforceable for foreclosure or cloud on title in Arizona. Quiet Title
is the only remaining option.
8. Defendants’ Decoupling Separation violates the long-standing precedence of Carpenter v.
Longan, 83 U.S. 271.
9. Said Deed of Trust was indeed separated from the note, one or more times, making it null, deficient, and
illegal.
10. Said nullity is an improper cloud on title.
11. WHEREFORE, Plaintiff requests that judgment be entered against Defendants as follows:
A. Judgment establishing Plaintiff’s estate as described above;
B. Judgment barring and forever estopping Defendants from having or claiming any right or title to the
premises adverse to Plaintiff;
C. Judgment for Plaintiff’s attorneys’ fees and costs;
D. Such other and further relief as this Court deems just and proper.
CASE#: MSC08-01603
CASE NAME: CROMWELL vs. NDEX WEST LLC
HEARING ON MOTION FOR SUMMARY ADJUDICATION
FILED BY AMERICA’S SERVICING COMPANY, et al.
* TENTATIVE RULING: *
Defendants’ Motion for Summary Adjudication of the 1st cause of action for breach of contract is granted, for
the reason the alleged oral agreement violates the statute of frauds. See CC § 1624(a)(3); Secrest v.
Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal. App. 4th 544, 553. In addition, the oral
agreement lacks consideration, as a commitment to perform a preexisting contractual obligation has no
value. See Auerbach v. Great W. Bank (1999) 74 Cal. App. 4th 1172, 1185; Raedeke v. Gibraltar Sav. &
Loan Assn. (1974) 10 Cal. 3d 665, 674 n.3. Plaintiff does not dispute that under the agreement, she would
make payments of specified amounts. (See evidence supporting Fact 1.) Nor has Plaintiff controverted
Defendants’ evidence that she was in arrears by eight months over $25,000 in accrued principal and
interest, and owed ASC another $15,636.39 in tax advances; Cromwell declaration ¶¶ 5-6. Plaintiff’s
argument that consideration exists in that she paid monies to entities that do not have a right to collect
payment lacks merit.
To the extent Plaintiff is attempting to assert an additional claim in her 1st cause of action for breach of the
implied covenant of good faith and fair dealing, that claim also lacks merit. There is no obligation to deal
fairly or in good faith absent an existing contract. See Racine & Laramie, Ltd. v. Department of Parks &
Recreation (1992) 11 Cal. App. 4th 1026, 1032.
Summary adjudication of the 2nd cause of action for fraud is denied. Plaintiff alleges that Defendants falsely
represented that they had the authority to sell her property and concealed from her that they had no such
authority because they had never recorded an assignment of the Deed of Trust. Defendants show that there
was a recorded Assignment of Deed of Trust dated March 26, 2008, wherein New Century purported to
assign to Deutsche Bank all beneficial interest under the Deed of Trust. However, Plaintiff correctly asserts
that this assignment is invalid for the reason it violates CC § 1095, in that it was executed solely by Wells
Fargo as attorney-in-fact for New Century, without subscribing New Century’s name. See Morrison v.
Bowman (1865) 29 Cal. 337, 341, 352; Mitchell v. Benjamin Franklin Bond & Indem. Corp. (1936) 13
Cal.App.2d 447, 448.
Regardless, Defendants contend in their reply that Plaintiff has admitted that Deutsche Bank entered into a
Pooling and Servicing Agreement (“PSA”) dated March 1, 2006, and that pursuant to ¶ 2.01 of the PSA,
Morgan Stanley Capital I, Inc., as Depositor, conveyed to Deutsche Bank, as trustee, “the right, title and
interest to the subject Deed of Trust and subject Promissory Note.” Defendants assert that this concession
by Plaintiff alone is sufficient to sustain summary adjudication in Defendants’ favor. The court disagrees.
There is no evidence, submitted by either Plaintiff or Defendants, that the PSA or any of the other
documents attached to Plaintiff’s request for judicial notice actually involve Plaintiff’s mortgage. There is only
Plaintiff’s assertion to that effect in her opposing argument. The documents provided in Plaintiff’s request for
judicial notice include only a few select pages from each of the documents, and it is not shown that Plaintiff’s
mortgage is necessarily included in them.
Summary adjudication of the cause of action for declaratory relief is denied for the same reasons applied to
the fraud cause of action.
Summary adjudication of the cause of action for unjust enrichment is granted. Plaintiff does not dispute that
her allegations that Defendants violated the TILA and RESPA lack merit. See evidence in support of
Defendants Facts 8 & 9. Plaintiff contends that the unjust enrichment cause of action succeeds because her
fraud claims justify her loan rescission, and also because Defendants hold no interest in the note. These
arguments fail because they are not supported by the allegations in the cause of action for unjust
enrichment. The pleadings serve as the outer measure of materiality in a summary judgment motion, and
the motion may not be granted or denied on issues not raised by the pleadings. Weil & Brown, Civ. Proc.
Before Trial, § 10:10:17.
Summary adjudication of Plaintiff’s cause of action for quiet title is denied for the reason Defendants fail to
address the entire cause of action as alleged. Contrary to Defendants’ assertion, rescission under the TILA
is not the sole basis for Plaintiff’s claim, as she also seeks to quiet title at ¶ 162 on the ground Defendants’
claims “are without any right, and Defendants have no title, estate, lien, or interest in the Subject Property.”
Because Defendants have not prevailed in regard to Plaintiff’s fraud cause of action, Defendants cannot
assert that they have also shown Plaintiff is not entitled to quiet title on this basis. In addition, Defendants fail
to address Plaintiff’s express allegations that she is excused from tendering the full amount of the loan. (¶¶
164, 165.)
Defendants’ objections are sustained. The parties’ requests for judicial notice are granted.
Movant’s Motion, however, is due to be denied because Movant has failed to
establish it has standing to seek stay relief. A motion for relief from the automatic
stay must be prosecuted in the name of the real party in interest. 11 U.S.C. §
362(d); FED. R. 7
CIV. P. 17(a)(1); FED. R. BANKR. P. 7017. “The real party in interest in relief
from stay is whoever is entitled to enforce the obligation sought to be enforced.”
In re Jacobson, 402 B.R. 359, 366 (Bankr. W.D. Wash. 2009). Only the holder of
the Note and Mortgage, or
its authorized agent, has standing to bring the Motion. Id. at 367.
Movant asserts in its Motion it is the “owner and holder” of the Note and
Mortgage, but has presented no evidence substantiating that assertion. The
copies of the Note presented do not contain an endorsement evidencing an
assignment of the Note.
The Affidavit executed by Movant’s loan servicer makes no mention of the
location of the original Note or who has possession of it. Movant proffered no
business records or testimony tracing ownership of the Note and establishing
Movant is the present holder of
the Note.
Even if the alleged "original note" filed by the Plaintiff on October 17,
2008 is ruled to be authentic, it remains unenforceable because the
alleged allonges are rendered invalid for violation of the rule of
affixation to the note and authentication pursuant to F.S. §
673.2041(1) and Booker v.Sarasota Inc., 707 So.2d 886 (Fla.App.
Dist.1 03/06/1998):
[17] Contrary to other arguments now advanced by Sarasota, Inc.,
the trial court
could not simply assume that Sarasota, Inc. held the note, or that the
photocopy of an
allonge, filed after the hearing on the motion for summary judgment,
was of
appropriate evidentiary value. Booker has correctly pointed out that in
order to be the
real party in interest on a promissory note, the plaintiff must be the
holder of the
note. See Troupe v. Redner, 652 So. 2d 394, 395-396 (Fla. 2d DCA
1995).
Here, the allonge, attached to the complaint, and referred to by Sarasota Inc.'s affidavit in
support of its motion for summary judgment, showed an assignment of the note from
an institution other than Citizens and Builders. The allonge, ultimately filed with the
court had never previously been verified by affidavit or testimony, nor had it been
provided to the court or to Booker in the form of an amended complaint. A Florida
court may not consider an unauthenticated document in ruling on a motion for
summary judgment, even where it appears that the such document, if properly
authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266
(Fla. 1st DCA 1991).
[19] "An allonge is a piece of paper annexed to a negotiable instrument or
promissory note, on which to write endorsements for which there is no room on the
instrument itself. Such must be so firmly affixed thereto as to become a part thereof."
Black's Law Dictionary 76 (6th ed. 1990). Florida's Uniform Commercial Code does
not specifically mention an allonge, but notes that "for the purpose of determining
whether a signature is made on an instrument, a paper affixed to the instrument is
part of the instrument. § 673.2041(1), Fla. Stat. (1995)." Federal rulings on the Uniform
Commercial Code (UCC) in regard to the negotiation and enforcement of negotiable instruments
are applicable to this issue in that the UCC is in effect enacted into the Florida statutes.
In Adams v. Madison Realty & Development Inc., 853 F.2d 163
(3rd Cir. 07/22/1988) the 3rd Circuit ruled as follows, with emphasis added:
[32] Article 3 of the Uniform Commercial Code incorporated many portions of
its predecessor, the Uniform Negotiable Instruments Law (NIL), drafted in 1896
by the National Conference of Commissioners on Uniform State Laws. By 1924,
the NIL had been adopted in every state. See 2 F. Hart & W. WiIlier, Commercial
Paper Under the Uniform Commercial Code § 1.06, at 1-25 to -26 (1988). When
it was transplanted into the 1956 draft of the Uniform Commercial Code, the
indorsements provision was altered in only a minor respect. Section 31 of the NIL
had specified that a proper indorsement "must be written on the instrument itself
or upon a paper attached thereto." The Code substituted the words "so firmly
affixed as to become a part thereof" for the phrase "upon a paper attached
thereto."...
[34] A holder in due course must take the instrument for value, in good faith,
and without notice that it is overdue, that it has been dishonored, or that a claim or
defense to it exists on the part of any person. See U.C.C. § 3-302(1). But
preliminarily, a person seeking to become a holder in due course must satisfy the
threshold requirements for becoming a "holder," the critical issue on this appeal.
[35] The Code defines a holder as one 'who is in possession of . . . an
instrument . . . drawn, issued or indorsed to him or to his order." U.C.C. § 1Defendant's Motion to Strike Note and Allonges - page 5 of 6
201(20). Mere ownership or possession of a note is insufficient to qualify an
individual as a "holder." The instrument must be obtained through a process the
Code terms "negotiation," defined as "the transfer of an instrument in such form
that the transferee becomes a holder." U.C.C. § 3-202(1). If the instrument is
payable to order -- as is the case with the notes here -- negotiation is
accomplished "by delivery with any necessary indorsement." Id.
[36] In explaining the requirement that the indorsement be on or firmly affixed
to the instrument, the Official Comment states that the Code "follows decisions
holding that a purported indorsement on a mortgage or other separate paper
pinned or clipped to an instrument is not sufficient for negotiation. The
indorsement must be on the instrument itself or on a paper intended for the
purpose which is so firmly affixed to the instrument as to become an extension or
part of it. Such a paper is called an allonge." U.C.C. § 3-202 Official Code
Comment (3)...
[38] The Code's requirement that an indorsement be "firmly affixed" to its
instrument is a settled feature of commercial law, adopted verbatim by every
American state, the District of Columbia, and the Virgin Islands. See 5 R.
Anderson, Uniform Commercial Code § 3-202:2, at 416 (3d ed. 1984) (citing
codifications). With a unanimity unusual in decisional law, the directive has been
faithfully observed.
[39] The historical origins of the provision have been chronicled to the days of
the Law Merchant. See Pribus v. Bush, 118 Cal. App. 3d 1003, 173 Cal. Rptr. 747
749 (1981). The practice of multiple indorsements which accompanied the growth
in commerce eventually led to acceptance of the use of allonges. See id.; Estrada
v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 725 (Tex. Ct. App. - Houston
[14th Dist.] 1977, writ ref'd n.r.e.). Even today, however, numerous jurisdictions
permit allonges only where, because of multiple indorsements, no additional
space for signatures remains on the negotiable instrument. See, e.g., Pribus, 173
Cal. Rptr. at 751; Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263, 187
S.E.2d 320, 321 (1972). But see Crosby v. Roub, 16 Wis. 616, 723-24 (1863)
(allonge permitted even where space remains on note).
[40] When the drafters of the Uniform Commercial Code replaced the term
"attached" in the NIL with the phrase "firmly affixed," they intended to make the
use of allonges more difficult. See Hills v. Gardiner Savings Institution, 309 A.2d
877, 880-81 (Me. 1973); Estrada, 550 S.W.2d at 728; 5 Anderson, supra, § 3202:05. Courts have advanced two justifications for the firmly-affixed
requirement. The California Court of Appeals reasoned that the provision serves
to prevent fraud, remarking that a signature innocently placed upon an innocuous
sheet of paper could be fraudulently attached to a negotiable instrument in order
to simulate an indorsement. Pribus, 173 Cal. Rptr. at 750. But cf. Lamson v.
Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 968 (1975) (allonge
consisting of two legal sheets stapled to two small checks held valid because
signing on checks valid themselves would have been impossible; "stapling is the
modern equivalent of gluing or pasting").
[41] The affixation requirement has also been cited for its utility in preserving a
traceable chain of title, thus furthering the Code's goal of free and unimpeded
negotiability of instruments. Nearly a century ago, the Supreme Court of Georgia
declared it "indispensably necessary" that negotiable instruments "should carry
within them the indicia by which their ownership is to be determined; otherwise,
their value as a circulating medium would be largely curtailed, if not entirely
destroyed." Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 46 (1897). See also Crosby,
16 Wis. at 724 (permanently attached indorsements to instrument "travel with it
wherever it might go"). Chancellor Hawkland writes that it would be
"unreasonable to impose upon the indorsee the risk that the present holder or a
prior holder had negotiated the instrument to someone not in the apparent chain of
title by virtue of a separate document." 4 W. Hawkland & L. Lawrence, Uniform
Commercial Code Series § 3-202:05 (1984).
PLAINTIFF FAILED TO COMPLY WITH APPLICABLE POOLING AND
SERVICING AGREEMENT LOAN SERVICING REQUIREMENTS: Plaintiff
failed to provide separate Defendants with legitimate and non predatory access
to the debt management and relief that must be made available to borrowers,
including this Defendant pursuant to and in accordance with the Pooling and
Servicing Agreement filed by the plaintiff with the Securities and Exchange
Commission that controls and applies to the subject mortgage loan. Plaintiff’s
non-compliance with the conditions precedent to foreclosure imposed on the
plaintiff pursuant to the applicable pooling and servicing agreement is an
actionable event that makes the filing of this foreclosure premature based on a
failure of a contractual and/or equitable condition precedent to foreclosure which
denies Plaintiff’s ability to carry out this foreclosure.
a. Defendants assert that the special default loan servicing requirements
contained in the subject pooling and servicing agreement, to be filed in pertinent
part and which is on file at: http://www.secinfo.com , are incorporated into the
terms of the mortgage contract between the parties as if written therein word for
word and the defendants are entitled to rely upon the servicing terms set out in
that agreement.
b. Alternatively or additionally, the defendants are third party beneficiaries
of the Plaintiff’s pooling and servicing agreement and entitled to enforce the
special default servicing obligations of the plaintiff specified therein.
c. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff
demonstrates compliance with the foreclosure prevention servicing imposed by
the subject pooling and servicing agreement under which the plaintiff owns the
subject mortgage loan.
d. The Plaintiff failed, refused or neglected to comply with prior to the
commencement of this action with the servicing obligations specifically imposed
on the plaintiff by the PSA in many particulars, including, but not limited to:
1. Plaintiff failed to service and administer the subject mortgage
loan in compliance with all applicable federal state and local laws.
2. Plaintiff failed to service and administer the subject loan in
accordance with the customary an usual standards of practice of mortgage
lenders and servicers.
3. Plaintiff failed to extend to defendants the opportunity and failed
to permit a modification, waiver, forbearance or amendment of the terms of the
subject loan or to in any way exercise the requisite judgment as is reasonably
required pursuant to the PSA.
e. Plaintiff’s failure to meet the servicing obligations imposed by the PSA
cause the filing by plaintiff of this foreclosure to be in premature, in bad faith and
a breach by plaintiff of its obligation to defendants implied in the mortgage
contract and as specified in writing in the PSA, to act in good faith and to deal
fairly with defendants.
f. Instead, plaintiff’s servicing failures as set forth herein render plaintiff’s
actions in filing this premature foreclosure to be in bad faith and not acceptable
loan servicing under the written contracts between the parties which include the
mortgage, the PSA incorporated therein or by which defendants are third party
beneficiaries thereof and the promissory note.
g. Plaintiff intentionally failed to act in good faith or to deal fairly with
these Defendants by failing to follow the applicable standards of residential single
family mortgage lending and servicing as described in these Affirmative
Defenses thereby denying these Defendants access to the residential mortgage
lending and servicing protocols applicable to the subject note and mortgage.
FAILURE OF GOOD
FAITH AND FAIR
DEALING: UNFAIR
AND
UNACCEPTABLE
LOAN
SERVICING: Plaintiff
intentionally failed to
act in good faith or to
deal fairly with the
subject Defendants by
failing to follow the
applicable standards
of residential single
family
mortgage servicing as
described in these
Affirmative Defenses
thereby denying
Defendant s access to
Ann
01/20/10 at 05:37 PM
#15
SAMPLE 2- (continued)
--------------------------------------------------------------------------
the residential mortgage servicing protocols
applicable to the subject note and mortgage.
6. UNCLEAN HANDS: The Plaintiff comes to court
with unclean hands and is prohibited by reason thereof
from obtaining the equitable relief of foreclosure from this
Court. The Plaintiff’s unclean hands result from the
Plaintiff’s improvident and predatory intentional failure to
comply with material terms of the mortgage and note; the
failure to comply with the default loan servicing
requirements that apply to this loan, all as described herein
above. As a matter of equity, this Court should refuse to
foreclose this mortgage because acceleration of the note
would be inequitable, unjust, and the circumstances of this
case render acceleration unconscionable. This court
should refuse the acceleration and deny foreclosure
because Plaintiff has waived the right to acceleration or is
estopped from doing so because of misleading conduct and
unfulfilled contractual and equitable conditions precedent.
WHEREFORE, Defendants demands the Plaintiff’s
complaint be dismissed with prejudice and for fraud on the
court, and for their attorney’s fees and costs and for all
other relief to which this Court finds Defendants entitled.
7. PLAINTIFF LACKS STANDING: DEUTSCHE
BANK NATIONAL TRUST COMPANY is not the true
owner of the claim sued upon, is not the real party in
interest and is not shown to be authorized to bring this
foreclosure action.
Re: Received 1099-A After a Foreclosure and Chapter 7 Bankruptcy
Quoting kwilliams12
My question involves bankruptcy in the state of: Nevada
My question involves a foreclosure in the State of: Nevada
Filed Chapter 7 in 9/07; Real Property included in Chapter 7 Bankruptcy; Principal Balance, Back Payments, Interest,
Legal fees plus more was included for a total of approximately $650,000; Notified bank of property being vacant on
11/16/07; Returned gate key and house keys at that time via Federal Express; Bank foreclosed on property 1/28/08; all
debts included in bankruptcy was discharged on 3/24/08; Received 1099 A on March 1, 2008; The principal
balance shows as $576,000 and the fair market value shows as $639,753.28; The property was actually purchased by the
lender for the amount owed; When I contacted the bank they tell me that was the fair market value of the property;
However, the definition of fair market value is the price that a given property or asset would fetch on the open market; The
actual market value of property at the time of foreclosure was approximately $450,000; In fact in September 2008 they
sold the property for $425,000. Do I owe taxes on the difference between $576,000 and $639,753.28 although the debt
was discharged in bankruptcy. What do I need to do in regards to my tax return this year?
It is very simple. You file a form 982 which will wipe out your 1099-A. You will not be responsible for the
amount on the 1099-C if the home they foreclosed was your primary home.
Here is a link to the law;
http://turbotax.intuit.com/tax-tools...ship/5512.html