CALIF ATTY GENERAL BROWN
Goes After Bait and Switch Refi Fraudsters

Neil Garfield
June 11, 2010 at 8:00 am
URL: http://wp.me/p7SnH-28y

Submitted by Abby:
MORE FRAUDSTERS CAUGHT BY CALIF ATTY GENERAL BROWN!!!
News Release
June 09, 2010

For Immediate Release
Contact: (510) 622-4500
Contact: Christine Gasparac or Evan Westrup, (510) 622-4500
Christine.Gasparac@doj.ca.gov or Evan.Westrup@doj.ca.gov

Three More Suspects Nabbed in Million-Dollar Bait-and-Switch Home Refinance Scam

LOS ANGELES – In a continuing probe into a defunct Southern California mortgage brokerage, Attorney General Edmund G. Brown Jr. today announced the arrests of president and co-owner Sean McConville and two associates who used “deceptive promises and forged documents” to steal almost $1 million from homeowners falsely guaranteed attractive home loan refinancing packages.

“These criminals employed a classic bait-and-switch in their refinance scheme,” Brown said. “With deceptive promises and forged documents, they maliciously cheated homeowners who trusted them and just wanted a fair deal.”

Brown’s office initiated its investigation in October 2008 in response to more than 70 complaints against the defendants and their mortgage brokerage business, ALG Capital, Inc. The brokerage operated out of Calabasas from early 2006 until late 2007 and then moved to Mission Hills until it shut its doors in 2008.

Brown’s investigation found that f! rom April 2007 to October 2008, the owners and their associates lured dozens of borrowers into refinancing home loans by falsely promising low interest rates, minimal broker fees and other attractive terms. The brokerage then negotiated different terms with lenders.

When homeowners were presented with closing documents, they bore the terms promised, but which the lenders never approved. After homeowners signed the closing documents, key pages were removed and replaced with pages bearing the terms that the lender had actually agreed to. The homeowners’ signatures were then forged on the replacement pages, and ALG forwarded the forged documents to the escrow company.

Homeowners only discovered they had been defrauded when they received the final loan documents with the true terms and their signatures forged on closing cost disclosures, Truth-in-Lending disclosures, loan applications and other documents.

Additionally, ALG collected al! most $1 million in undisclosed fees, charging homeowners up to! $57,000 in broker fees. In total, dozens of homeowners were locked into almost $30 million in loans with terms they did not agree to.

As a result of this scheme, many homeowners were forced to sell their homes, come out of retirement, or tap retirement savings. Others paid significant prepayment penalties, including over $21,000 in one case. Borrowers also rarely received the large cash-outs they were promised as part of the refinance.

Sean McConville, 30, of Austin, Texas, president and co-owner of the brokerage, was arrested early yesterday morning at his residence. He is being held at the Travis County Jail in Texas pending extradition. He was previously convicted of robbery in November 1997.

Matthew Bourgo, 27, of Thousand Oaks, who posed as a licensed notary for the brokerage, was arrested yesterday afternoon at his residence. He is being held in Ventura County Jail and will be transferred to Los Angeles County.

Joseph Nguyen, 37, of Woodland Hills, a former loan officer for the brokerage, was also arrested yesterday afternoon at his business, where he worked as a chiropractor. He is being held by authorities in Los Angeles County.

The suspects are each being held on $29.5 million bail.

In September 2009, Brown’s office arrested three others involved in the bait-and-switch scam, including Michael McConville, 32, of Simi Valley, Sean’s brother and co-owner of the brokerage, Alan Ruiz, 29, of Huntington Beach, a former loan officer and Garrett Holdridge, 24, of Palmdale, who was convicted of seven felonies in March for his involvement in the scam.

Investigators located victims in dozens of California cities, including: Auburn, Altadena, Arroyo Grande, Azusa, Bakersfield, Berkeley, Burbank, Calabasas, Castro Valley, Chino, Compton, Corona, Fairfield, Fontana, Fremont, Fresno, Garden Grove, Glendale, Hemet, Highland, Huntington Beach, La Habra! , La Mesa, La Mirada, La Quinta, Lancaster, Livermore , Los Angeles, Lo! ng Beach, Manteca, Martinez, Monterey, Murrieta, Nice, Northridge, Oakland, Ontario, Palmdale, Pasadena, Perris, Petaluma, Pomona, Quartz Hill, Rancho Cucamonga, Redlands, Reedley, Rialto, Sacramento, San Clemente, San Diego, San Jose, Santa Rosa, Sierra Madre, Spring Valley, Stanton, Temecula, Whittier, and Winnetka.

The complaint, filed in Los Angeles County Superior Court, includes the following charges: 38 counts of grand theft, 19 counts of forgery, three counts of elder abuse, and one count of conspiracy to commit grand theft.

Brown also filed suit against the McConville brothers in May 2009 for running a property tax reassessment scam which targeted Californians looking to lower their property taxes. The brothers billed tens of thousands of homeowners throughout California nearly $200 each for property tax reassessment services that were almost never performed and are available free of charge from local tax assessors.

Legal Information to Consumers and Self-Help Litigants in California Courts

CALIFORNIA

California Association of Legal Document Assistants (CALDA) Spearheads Efforts to Help Provide Legal Information to Consumers and Self-Help Litigants in California Courts

PR.com

The Sacramento Family Law Self-Help Center is the latest to join the growing list of court facilities displaying and distributing informational brochures of the California Association of Legal Document Assistants (CALDA). The CALDA “LDA Referral Service” brochure, provided free to the public, answers common questions about LDAs , such as “Who are Legal Document Assistants?” and “How can a Legal Document Assistant Help You?” The brochure also features CALDA’s website: www.calda.org.

02-19-10 -- The Sacramento Family Law Self-Help Center is the latest to join the growing list of court facilities displaying and distributing informational brochures of the California Association of Legal Document Assistants (CALDA).

The CALDA “LDA Referral Service” brochure, provided free to the public, answers common questions about LDAs , such as “Who are Legal Document Assistants?” and “How can a Legal Document Assistant Help You?” The brochure also features CALDA’s website, which lists registered and bonded LDAs by city, county, zip code, name, services and area code.

“The inclusion of the CALDA brochure as a referral from the courts is a milestone for CALDA and Legal Document Assistants,” said Angie Walters, who chairs CALDA’s Legislative Affairs Committee and was instrumental in placing the brochures at the Sacramento Family Law Self-Help Center. “We are extremely pleased that the court deems the CALDA brochure as a valuable tool of information for consumers and self-help litigants seeking affordable legal documents and forms preparation services.”

Other counties

In addition to Sacramento County, the brochures are also available in the courts and locations in the following counties: . . . Nevada County / - San Joaquin County / - San Luis Obispo County / - Alameda County (Hayward Law Library)

Another choice for self-litigants

“These brochures will no doubt increase the ability of our members to provide the self-litigant with an additional means to meet their legal needs,” said Marcel Neumann, CALDA president.

If you would like to request copies of the brochure, email Marcel Neumann at president@calda.org. Include your name and/or business name, address and your county. The brochure may also be downloaded from the CALDA website: http://www.calda.org/CALDA_LDA_Brochure.pdf

About Legal Document Assistants

Legal Document Assistants were once commonly known as Independent Paralegals. An LDA is an experienced professional who is authorized to prepare legal documents for a client, LDAs are not attorneys and they can only provide self-help services at their client's specific directions. In other words, an LDA is there to assist the "self-litigant" handle their own legal matters. Unlike Paralegals who must work directly for an attorney, LDA’s can work with or without an attorney and are registered and bonded legal professionals who are authorized to prepare legal documents and provide self-help services to the general public.

Californians: Use this caselaw if you are being evicted from your home and you don't believe Wells Fargo can prove they own your home!

California: Homeowner in Foreclosure Earns a Huge Victory in Unlawful Detainer !by Neil Garfield

Homeowner in Foreclosure Earns a Huge Victory in Unlawful Detainer !

By Maher Soliman
Expert Witness, Whole Loan Examiner and Consultant to Counsel Sacramento California – A California Courts ruling is for a judgment in the “holdover” matter allowing the foreclosure “sale” by trustee to be set aside in favor of a modification.

Lenders who originate and service loans know California offers a “safe haven” from homeowners disputes in a foreclosure. That means overwhelming odds for anyone in foreclosure who 1) loses their home in a foreclosure and 2) must respond to an unlawful detainer after their home is lost. That was not the case for an El Dorado area resident at a recent hearing for an unlawful detainer matter heard in a Placerville County superior court room.

The win in court is in the unlawful detainer matter and case number PCU20080326 and parties – AURORA LOAN SERVICES v. STELLA D. ONYEU.

The case was originally filed in October of last year and shortly thereafter was dismissed when the Plaintiff failed to show at a scheduled hearing. Subsequent motions were filed to vacate the dismissal in favor of a motion to dismiss by the plaintiffs. The matter was heard recently heard again by the same court and earlier mentioned presiding judge. Mark Terbeek is the attorney for the Defendant and Maher Soliman a Juris Pro witness provided case development and court expert testimony.

This judgment ruling for the defendant is monumental given the courts limited jurisdiction related to the lenders sole focus to have the borrower removed from the home. The issues at hand are the legal procedural limitations and high attrition rate for defendants and their attorney’s. The problem is the defendant’s lack of standing for pleading a wrongful foreclosure due to jurisdiction of the court.

So what does this all mean? Many homeowners can find some hope, for the moment, in knowing the otherwise unfriendly California UD courts will now hold some promise for hearing arguments as to the foreclosure and the plaintiffs standing.

According to foreclosure and REO sales analyst Brenda Michelson of Nationwide Loan Services “It’s hit or miss at this level of the law and the courts willingness to step outside of its jurisdiction.” The smaller outlying courts seem to me to be more willing to entertain defense arguments that the plaintiff may not be the holder in due course and lacks capacity throughout the foreclosure” Terbeek’s response is that if the plaintiff cannot demonstrate a logical and properly conveyed transfer of the beneficial interest – it is not entitled to possession.

After the foreclosure and conveyance back to the trustee, the homeowner is considered unlawfully occupying the dwelling as a holdover. However, the court ruled that AURORA had in fact violated its duty to show good faith and comply accordingly under the recent California statutes and amendments Power of Sale provision. AURORA LOAN SERVICES like so many other lender servicing agents has come under greater scrutiny as of late for questionable business practices. According to its web site Aurora Loan Services is operating as usual. The company is a subsidiary of Lehman Brothers Bank, and not part of the Lehman Brothers Holding Inc. bankruptcy filing. Servicing agents are on notice they must be ready to defend themselves when the opportunity to argue the plaintiffs standing are allowed in an unlawful detainer motivate by a foreclosure.

The presiding judge who heard the matter ordered a judgment against the company allowed for Terbeek to enter a request for all legal fees due.

According to legal expert Soliman, “there are so many attorneys willing to fight the court on the jurisdiction issue. However, it is nearly impossible to rely on the judge and courts at this level”. Soliman is an examiner with Nationwide Loan Services and has engagements in multiple cases throughout California through attorneys such as Terbeek who represented the defendant.

Jurisdiction: An Overview

The term jurisdiction is really synonymous with the word “power” and the sovereignty on behalf of which it functions.. Any court possesses jurisdiction over matters only to the extent granted to it by the Constitution, or legislation of A paramount fundamental question for lawyers is whether a given court has jurisdiction to preside over a given case. A jurisdictional question may be broken down into various components including whether there is jurisdiction over the person (in personam), the subject matter, or res (in rem), and to render the particular judgment sought.

An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord’s complaint. Normally, a judge will hear and decide the case within 20 days after the borrower now tenant files an answer.

The question of whether a given court has the power to determine a jurisdictional question is itself a jurisdictional question. Such a legal question is referred to as “jurisdiction to determine jurisdiction.” In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court. In an eviction lawsuit, the lender is the “plaintiff” and the prior borrower and homeowners become an occupant holdover and the “defendant.” Immediately after the trustee sale of the home the conveyance by the trustee is entered in favor of the lender. Until recently in most cases the lender is with in its right foreclose if a borrower has missed a number of payments, failed to make the insurance premiums or not paid the property taxes. “But sometimes a lender is wrong and you can fight foreclosure by challenging the foreclosure process and related documents” said Soliman.

As the new owner of record Duetsche Bank must follow procedures no different than that of a landlord in a tenant occupancy dispute. Therein, the next step is to remove the homeowner from the subject dwelling. If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. If the lender makes a mistake in its filing of the foreclosure documents a court my throw out the whole foreclosure case. In the case of a wrongful foreclosure the borrower’s claims are limited to affirmative defenses.

AFFIRMATIVE DEFENSES

Unlike a judicial proceeding, California lenders need to merely wait out the mandatory term for issuing default notices and ensure it has properly served those notices to the borrower. In other words the hearing and trial taken place in the above referenced matter is not subject to arguments brought by the homeowner for wrongful foreclosure versus the question as to lawful possession of the property by the lender.

California lenders are typically limited to only the defenses a landlord will face when opposed and made subject to claims of wrongfully trying to evict a tenant. Claims such as the Plaintiff has breached the warranty to provide habitable premises, plaintiff did not give proper credit before the notice to pay or quit expired or plaintiff waived, changed, or canceled the notice to quit, or filed the complaint to retaliate against defendant are often completely unrelated to the matter at hand. The courts decision to enforce the provisions of an earlier modification in lieu of a foreclosure sends a major wake up call to the lenders who are under siege to avoid foreclose and be done with mortgage mess affecting United States homeowners. Soliman says the decision is unfortunately not likely to be read into as case precedent for future lawyers and wrongful defendants seeking to introduce our case as an example of a lenders wrongful action.

Therefore, the debate about what the courts can and cannot hear will remain open and subject to further scrutiny by the lawyers for both sides and judges who preside over the courts at this level.

Filed under: CDO, CORRUPTION, GTC | Honor, Investor, MODIFICATION, Mortgage, foreclosure, foreign relations, interest rates, securities fraud | Tagged: borrower, Eviction, foreclosure, foreclosure defense, foreclosure offense, fraud, Lender Liability, lost note, predatory lending, rescission, securitization

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CALIFORNIANS: IF YOU WANT TO USE "PRODUCE THE NOTE DEFENSE" YOU MUST QUOTE CALIFORNIA CASE LAW!

California Plaintiff goes in pro per and files “Produce the Note” challenge to stop foreclosure…….

By Attorney Steve Vondran · March 6, 2010 · Filed in Uncategorized · No Comments »

Unfortunately, court says “no way” and declares THERE IS NO REQUIREMENT THAT THE ANYONE PRODUCE THE ORIGINAL PROMISSORY NOTE AS A PRE-REQUISITE TO PURSUING A PRIVATE TRUSTEE SALE. Here are a few snipets from the case:

MY COMMENTS ARE IN BOLD AND MERELY REPRESENT MY OPINION.

Chilton v. Federal Nat. Mortg. Ass’n, Slip Copy, 2009 WL 5197869 (E.D.Cal.)



ORDER RE PROPOSED ORDER TO SHOW CAUSE AND MOTION FOR TEMPORARY RESTRAINING ORDER



Plaintiff filed a complaint on December 16, 2009, alleging that Defendant, Federal National Mortgage Association, violated unspecified provisions of federal law within “Title 15 U.S.C. and/or Title 18 U.S.C.” because Defendant initiated non-judicial foreclosure on her property, located in Clovis, California, without possessing the genuine original note.” She advances no other bases for relief.

Plaintiff has also filed an “order to show cause and motion for temporary restraining order,” in an attempt to block the foreclosure process.
To obtain temporary or permanent injunctive relief, a plaintiff must demonstrate likelihood of success on the merits. Here, Plaintiff’s only legal theory has been resoundingly rejected as a basis for relief. It is well-established that non-judicial foreclosures can be commenced without producing the original promissory note.

THAT’S THE PART THAT HURTS. I SUPPOSE ANYONE WHO SHOWS UP ON FORECLOSURE DAY CLAIMING TO BE THE HOLDER OF THE LOAN (WHETHER IT IS MERS PRETENDING TO BE THE BENEFICIARY OR THE NOMINEE OF THE LENDER, THE LOAN SERVICER PRETENDING TO BE THE HOLDER OF THE LOAN OR SOME OTHER THIRD PARTY, LIKE WALLMART FOR EXAMPLE, CLAIMING TO BE THE HOLDER OF THE LOAN) GETS AN UNFETTERED RIGHT TO FORECLOSE, AND A FREE PASS FROM ANY JUDICIAL SCRUTINY WHATSOEVER.

The Court went on to state:

“Non-judicial foreclosure under a deed of trust is governed by California Civil Code Section 2924 which relevant section provides that a “trustee, mortgagee or beneficiary or any of their authorized agents” may conduct the foreclosure process.” California courts have held that the Civil Code provisions “cover every aspect” of the foreclosure process, (case cited), and are “intended to be exhaustive,”(another case cited). There is no requirement that the party initiating foreclosure be in possession of the original note.

AFTER LEVELING THIS BLOW THE COURT CITED A FEW OTHER CASES THAT RESULTED IN THE SAME OUTCOME FOR PLAINTIFFS ASSERTING THE “PRODUCE THE NOTE” FORECLOSURE DEFENSE STRATEGY (OBVIOUSLY IN AN ATTEMPT TO TELL FUTURE LITIGANTS IN CALIFORNIA “GIVE UP TRYING TO VERIFY ANYONES CREDENTIALS”):

(1) See, e.g., Nool v. HomeQ Servicing, — F.Supp.2d —-, 2009 WL 2905745 (Sep. 4 2009) (”There is no requirement that the party initiating foreclosure be in possession of the original note.”);

(2) Candelo v. NDEX West, LLC, 2008 WL 5382259, at *4 (E.D.Cal. Dec.23, 2008) (”No requirement exists under statutory framework to produce the original note to initiate non-judicial foreclosure.”);

(3) Putkkuri v. ReconTrust Co., 2009 WL 32567, *2 (S.D.Cal. Jan.5, 2009) (”Production of the original note is not required to proceed with a non-judicial foreclosure.”);

(4) Phillips v. MERS Mortgage Electronic Registration Systems, 2009 WL 3233865, 9 (E.D.Cal.2009); Vargas v. Reconstruction Co., 2008 U.S. Dist. LEXIS 100115, at *8-9 (E.D.Cal. Dec. 1, 2008).


WE HAVE PREVIOUSLY DISCUSSED THE KANSAS SUPREME COURT CASE THAT DISCUSSED THE ROLE OF MERS IN WHICH THE COURT SEEMED TO SUGGEST THAT MERS WAS NOT A BENEFICIARY UNDER THE DEED OF TRUST JUST BECAUSE THEY SAY THEY ARE IN THE DOCUMENT. THE COURT ADDRESSED PLAINTIFF’S RELIANCE ON THAT CASE:

“Plaintiff’s reliance on Landmark National Bank v. Kessler, 216 P.3d 158, 2009 Kan. LEXIS 834 (Kan.2009), is misplaced. That case concerned a company, Mortgage Electronic Registration Systems, Inc. (”MERS”), that acted on behalf of a lender to finalize a second mortgage on Kessler’s home. For procedural reasons not relevant to the present case, it became necessary for the Kansas court to determine whether MERS possessed an interest in the second mortgage, eventually concluding that under the specific facts of that case, MERS was more like an agent than a buyer/owner of the note.”

THE COURT CONTINUED:

“In reaching this conclusion, the Landmark court noted: 
Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable. “The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo.App.2009).”


THE COURT CHIMED IN ON THIS LEGAL REQUIREMENT:

“This language merely stands for the proposition that one possessing the deed of trust cannot foreclose on a mortgage without (1) also possessing some interest in the promissory note, or (2) obtaining permission to act as agent of the note-holder. This has nothing whatsoever to do with possession of the “original” promissory note document, i.e., the original piece of paper with original signatures, etc., the possession of which is not required to initiate non-judicial foreclosure in California. Because Plaintiff cannot possibly establish any likelihood of success on her current claim for relief, it is not necessary to set her motion for temporary injunctive relief for hearing. Her motion is DENIED. IT IS SO ORDERED.”


There you have it friends, as we have been telling callers to our office seeking foreclosure defense, DO NOT RELY ON “PRODUCE THE NOTE” AS A SILVER BULLET FORECLOSURE DEFENSE THAT IS GOING TO STOP YOUR FORECLOSURE WITH AN INJUNCTION AND GET YOUR HOUSE FOR FREE. IF THERE ARE GLARING IRREGULARITIES, AND OTHER LEGAL GROUNDS TO GET YOU INTO COURT VALIDLY, THEN YOU MAY WANT TO TAG ON THIS CLAIM AND SEE IF YOU CAN GET A DIFFERENT OUTCOME FROM A DIFFERENT JUDGE, BUT SUFFICE IT TO SAY AS A STAND-ALONE LEGAL THEORY, THERE IS SIMPLY NOT MUCH TEETH TO THE THEORY. MOST OF THE CASES WHERE YOU HEAR OF SOME SUCCESS COME FROM FLORIDA AND OHIO AND OTHER “JUDICIAL FORECLOSURE” STATES WHERE THE LENDER IS FORCED TO FILE IN COURT TO START THE FORECLOSURE PROCESS. IN THESE CASES, THE ISSUE BECOMES A QUESTION OF “STANDING” AND “REAL PARTY IN INTEREST.” THERE IS ALSO THE BANKRUPTCY ANGLE THAT WE WILL BE EXPLORING IN GREATER DETAIL IN FUTURE POSTS.

____________________________________________________________________________________________________________________________________________________________________________

In a similar case, NEWBECK v. WASHINGTON MUTUAL BANK, Slip Copy, 2010 WL 291821 (N.D.Cal.), the Court essentially held the same way when a Plaintiff tried to argue “produce the original note” as a strategy to set aside a foreclosure sale that had already occurred. In this case the Court first discussed the dreaded issue of challenging a foreclosure sale that had already been finalized, and the Court’s comments shed light on how one-sided the laws are when you dare take on a “lender” in Court

“Plaintiffs ask the Court to set aside Washington Mutual’s foreclosure sale of their property. They assert that Washington Mutual did not have possession of the original mortgage note or the deed of trust under which it was secured and, as a result, it was not entitled to foreclose. A plaintiff seeking to set aside a foreclosure sale must first allege tender of the amount of the secured indebtedness. Abdallah v. United Savings Bank, 43 Cal.App.4th 1101, 1109, 51 Cal.Rptr.2d 286 (1996) (citing FPCI RE-HAB 01 v. E & G Investments, Ltd., 207 Cal.App.3d 1018, 1021-22, 255 Cal.Rptr. 157 (1989)); Smith v. Wachovia, 2009 WL 1948829, at *3 (N.D.Cal.). Without pleading tender or the ability to offer tender, a plaintiff cannot state a cause of action to set aside a foreclosure sale. Karlsen v. Am. Savings & Loan Ass’n, 15 Cal.App.3d 112, 117, 92 Cal.Rptr. 851 (1971) (citing Copsey v. Sacramento Bank, 133 Cal. 659, 662 (1901)); Smith, 2009 WL 1948829, at * 3 (citing Karlsen ). Plaintiffs allege neither tender nor their ability to offer tender. Thus, they do not state a claim to set aside the foreclosure sale.

THIS MEANS, IF YOU ARE CHALLENGING A FORECLOSURE SALE AND SEEK TO SET IT ASIDE (ON WHATEVER PROPER GROUNDS YOU MAY HAVE) YOU NEED TO AT LEAST ALLEGE A WILLINGNESS AND ABILITY TO TENDER. IF ALL ELSE FAILS, YOU MAY WANT TO TELL THE JUDGE THAT YOU WILL TENDER THE FULL BALANCE DUE AFTER YOU COLLECT ON YOUR FRAUD JUDGEMENT. SOMETIMES THIS MAY BE ALL YOU HAVE WHEN YOU ARE WAY UPSIDE DOWN ON YOUR PROPERTY.

THE COURT THEN WENT ON TO DISCUSS WHAT MIGHT HAPPEN EVEN IF YOU COULD TENDER:

“Even if they alleged tender, the basis on which they appear to seek relief does not support their claim. In California, there is no requirement that a trustee produce the original promissory note prior to a non-judicial foreclosure sale. See, e.g., Pantoja v. Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1186 (N.D.Cal.2009); Smith, 2009 WL 1948829, at *3; Neal v. Juarez,2007 WL 2140640, *8 (S.D.Cal.) (citing R.G. Hamilton Corp. v. Corum, 218 Cal. 92, 94, 97, 21 P.2d 413 (1933); Cal. Trust Co. v. Smead Inv. Co., 6 Cal.App.2d 432, 435, 44 P.2d 624 (1935)).California Civil Code Sections 2924 through 2924k ”provide a comprehensive framework for the regulation of a non-judicial foreclosure sale pursuant to a power of sale contained in a deed of trust.” Knapp v. Doherty, 123 Cal.App.4th 76, 86, 20 Cal.Rptr.3d 1 (2004) (quoting Moeller v. Lien, 25 Cal.App.4th 822, 830, 30 Cal.Rptr.2d 777 (1994)). Knapp explains the non-judicial foreclosure process as follows: Upon default by the trustor [under a deed of trust containing a power of sale], the beneficiary may declare a default and proceed with a nonjudicial foreclosure sale. The foreclosure process is commenced by the recording of a notice of default and election to sell by the trustee. After the notice of default is recorded, the trustee must wait three calendar months before proceeding with the sale. After the 3-month period has elapsed, a notice of sale must be published, posted and mailed 20 days before the sale and recorded 14 days before the sale. Knapp, 123 Cal.App.4th at 86, 20 Cal.Rptr.3d 1 (citation omitted).

I SUPPOSE YOU ARE NEVER ALLOWED TO ASK WHO THE “BENEFICIARY” IS OR MAKE ANYONE PROVE THAT POINT BEFORE THEY TAKE YOUR HOUSE. ARE YOU ALSO ALLOWED TO ASK WHO THE BENEFICIARY IS FOR PURPOSES OF COMPLIANCE WITH CALIFORNIA CIVIL CODE SECTION 2923.5 AND THE DECLARATION THAT IS MADE UNDER THIS SECTION? WE WILL DISCUSS THIS ISSUE IN ANOTHER BLOG POST.

ANYWAY, I DIGRESS, THE COURT CONTINUED:

“A properly conducted nonjudicial foreclosure sale constitutes a final 13 adjudication of the rights of the borrower and lender.” Plaintiffs have not pointed to controlling authority to show that this statutory scheme requires production of the original promissory note or deed of trust. Thus, even if they alleged tender, to the extent that they allege irregularities in the foreclosure sale based on Washington Mutual’s failure to produce the original promissory note or deed of trust, they do not state a claim.

AS DISCUSSED ABOVE, ONLY OUT OF STATE CLAIMS FOR PRODUCE THE NOTE WERE CITED (THESE COME FROM THE JUDICIAL FORECLOSURE STATES).

“Plaintiffs cite various out-of-state cases, which apply non-California law to judicial foreclosure actions. See In re Foreclosure Actions, 2007 WL 4034554 (N.D.Ohio); In re Foreclosure Cases, 2007 WL 3232430 (N.D.Ohio); Landmark Nat’l Bank v. Kessler, 289 Kan. 528, 216 P.3d 158 (2009); U.S. Bank Nat’l Ass’n v. Ibanez, 2009 WL 3297551 (Mass.Land Ct.). Because these cases do not apply California’s non-judicial foreclosure sale statutes, they do not support Plaintiffs’ position.”
SO THERE YOU HAVE IT, MORE PROOF OF THE MOUNTAIN YOU MUST CLIMB TO GET TO THE PROMISED LAND. AS WE TELL OUR CLIENTS, FORECLOSURE DEFENSE IS NOT AN EASY BUSINESS.

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KEYWORDS: CALIFORNIA FORECLOSURE DEFENSE LAWYER / PHOENIX FORECLOSURE DEFENSE LAWYER / ARIZONA LOAN MODIFICATION LAWYER / PRODUCE THE NOTE FORECLOSURE DEFENSE STRATEGY / SCOTTSDALE LOAN MODIFICATION / PHOENIX BANKRUPTCY LAWYER / PHOENIX BK ATTORNEY / NEWPORT BEACH FORECLOSURE LAWYER / INJUNCTION TO STOP FORECLOSURE / TRO / LIS PENDENS / SB1137 / FILE CHAPTER 7 BANKRUPTCY / MERS / SECURITIZED LOANS / QWR.

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AUTHORS NOTE: IF THE CALIFORNIA FORECLOSURE STATUTES GOVERN THE FORECLOSURE SALE PROCESS, AND IF NOTHING ELSE REALLY MATTERS, THEN YOU NEED TO TAKE A CLOSE LOOK AT WHETHER THAT STATUTE IS BEING COMPLIED WITH WHEN LOOKING TO OBTAIN AN INJUNCTION TO HALT FORECLOSURE.

In re: KANG JIN HWANG and IndyMac Bank

CALIFORNIA RESIDENTS HOLD YOUR GROUND AGAINST WELLS FARGO!

I applied for a Wells Fargo mortgage refinance on May 13, 2009. The Rep quoted 15yr, fixed at 4.5 percent with closing costs or 30ys fixed at 5.625 with no closing costs. I chose the latter. I answered CA disclosures where I disclosed this is NOT my primary residence. It is recorded and Wells Fargo does not deny I stated it is not a primary residence but a rental. About May 15, I spoke with the escrow officer on May 19 who reaffirmed I was applying for the loan and again was asked if this was a primary residence. I said no again. I took the home out of a Trust so they could refi.(abt $100.) On June 8, I received a request from them to fax them proof of employment. Indicating to me all is well and progressing on the loan. I got a call today, JUNE 19, that they have denied the refi because it cannot be used for a non-primary residence!! And, was told that is the only reason I am denied everything else qualified me for the loan. 35 DAYS LATER, interest rates are up over one percent or more! and now they deny my refi because of their own stipulations which were stated to them truthfully over a month ago? If they had denied it in the beginning say like 10 days into the loan application they say they could have done the 4.5 percent loan with closing costs and they would have taken the cost to remove the home from the trust. Now they want 5.65 percent with $3,500 closing costs and another 30 days to qualify me for the loan that they have been qualifying me for the last 35 days.They knew the house was a rental from day one. How can they get away with this? 5.65 percent vs 4.5 percent over 15 years is alot of money they are going to collect plus closing costs by simply not following their own rules and not allowing me to go elsewhere during that time to secure a loan which is not available now. After everthing this economy has suffered Wells Fargo Mortgage is still using their deceptive ways on consumers.

A. XXXX

Contra Costa, CA Resident

CALIFORNIA IS FORCING WELLS FARGO INTO JUDICIAL FORECLOSURES

1. 
   

   Hotel Lawyer: California foreclosure traps for unwary lenders ...

   ... Helios AMC, HSH Nordbank, AG, HSBC, Wells Fargo Bank, 
   BankAmerica, Morgan Stanley, ... Foreclosures in California are
   subject to special statutory and .... and the court assessed 
   compensatory and punitive damages against the debtor. ...hotellaw.jmbm.com/2010/02/hotel_lawyer_california_forecl.html
    - Cached
2. 
   

   California Court Orders Wells Fargo to Pay Over $1 Million for ...

   Sep 11, 2007 ... Wells Fargo also began foreclosure proceedings 
   on the Fisher's home when ... against Wells Fargo for $765000 in 
   actual and punitive damages. ...
   blog.socalcreditdamage.com/?p=195 - Cached
3. 
   

   California Court of Appeals Orders Wells Fargo to Pay Over $500000 ...

   That a jury assessed $750000.00 in punitive damages against 
   Wells Fargo ... Wells Fargoalso began foreclosure proceedings on the 
   Fisher's home when it no ... wellscan.com/a713994-california-
   court-of-appeals-orders-wells.cfm - Cached
4. 
   

   Baltimore says Wells Fargo preyed on poor - Mortgage Mess- msnbc.com

   Jan 8, 2008 ... Two-thirds of Wells Fargo's foreclosures occurred in
   neighborhoods ... City officials say the foreclosures further damage their 
   efforts to ... www.msnbc.msn.com/id/22557579/ - Cached - Similar
5. 
   

   Law.com - Bank's Behavior in Foreclosure Leads to Fine

   The judge ordered the bank to pay Tyson $150000 in punitive damages 
   and compensate ...In September 2007, Wells Fargo moved to foreclose 
   on Tyson's home. ... www.law.com/jsp/article.jsp?id=1202446222364 - Cached
6. 
   

   Wells Fargo / ASC - 2009 Credit Suit - Credit, FICO Scoring and ...

   The California Court of Appeal (Fourth District, Division Two) issued this ... 
   But the court agreed with Wells Fargo that punitive damages award was 
   excessive. .... They have actually foreclosed without trying to work something 
   out with ... www.creditsuit.org/credit.php/blog/C49/ - Cached - Similar
7. 
   

   HAMP Trial Plan Fraud: What Can You Do? | Truth in Foreclosure

   Mar 9, 2010 ... There are other (California specific) arguments listed in 
   the ActiveRain article including: ... money damages, including potentially 
   punitive damages. ... Carpet for Denied Loan Mods – Is Wells Fargo
    the First of Many? ...www.truthinforeclosure.com/hamp-trial-plan-fraud
   -what-can-you-do - Cached
8. 
   

   California Home Equity Sales Contract Law

   Feb 23, 2008 ... During the time period between the commencement of 
   foreclosure ... the equity purchaser for actual damages as well as punitive 
   damages. ... Over the weekend a wells fargo officer said hey he has not 
   submitted your offer. ... www.forecloseddreams.com/california-home-equity
   -sales-contract-law - Cached - Similar
9. 
   

   Rancho Cucamonga Jury Orders Wells Fargo to Pay Consumers Over ...

   Mar 6, 2007 ... Wells Fargo also began foreclosure proceedings on the Fisher's
    ... Fargo as well as over $750000 in actual and punitive damages. ... 
   California Court Orders Wells Fargo to Pay Over $1 Million for False Credit 
   Reporting ... findnorthdakotahouses.com/a161287-rancho-cucamonga
   -jury-orders-wells-fargo.cfm - Cached
10. 
    

    Wells Fargo Gone Wild: Judge Hits Wells with $150K in Punitive ...

    1 post - 1 author - Last post: Mar 16

    Bank's Behavior in Foreclosure Leads to Fine Vesselin Mitev New York 
    Law Journal A judge in Suffolk County, N.Y., has ordered Wells Fargo 
    bank to pay ... The judge ordered the bank to pay Tyson $150000 in 
    punitive damages and compensate him ... Arizona, Arkansas,California, Colorado, Connecticut ... www.ronpaulforums.com/showthread.php?t=235977 - Cached