CAN A CALIFORNIA HOMEOWNER DEMAND THAT THE LENDER OR LOAN SERVICER PRODUCE THE NOTE AS A FORECLOSURE DEFENSE STRATEGY?

There is no guarantee the following is correct. Law changes all the time. This is for attorneys only and you should assume the information is not correct. This is general legal information only.
_____

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.

_____________________________________________________________

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.

_____________________________________________________________

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.

Steve Vondran is a real estate lawyer who can represent you in financial elder abuse, distressed real estate issues, short sale, predatory lending, state and federal real estate litigation, arbitration, broker compliance, accusations, real estate zoning & land use, eminent domain, trademarks, and general foreclosure defense. Call (877) 276-5084

https://plus.google.com/u/0/10070596809310853739. Don’t forget to circle me on Google+

Real Estate Law Firm – who has written posts on Foreclosure Defense Resource Center.


Article Global Facebook Twitter Myspace Friendfeed Technorati del.icio.us Digg Google StumbleUpon Eli Pets

About Real Estate Law Firm
Steve Vondran is a real estate lawyer who can represent you in financial elder abuse, distressed real estate issues, short sale, predatory lending, state and federal real estate litigation, arbitration, broker compliance, accusations, real estate zoning & land use, eminent domain, trademarks, and general foreclosure defense. Call (877) 276-5084 https://plus.google.com/u/0/10070596809310853739. Don't forget to circle me on Google+

Comments

30 Responses to “CAN A CALIFORNIA HOMEOWNER DEMAND THAT THE LENDER OR LOAN SERVICER PRODUCE THE NOTE AS A FORECLOSURE DEFENSE STRATEGY?”
  1. elkate says:

    May 2009 TILA Amendment states creditor must be identified if requested. This is being addressed in Courts. Get them with violations and proceed to bankruptcy to enforce the identity of creditor – if necessary. Holding the Note is outdated.

    And, “beneficiaries” does not cut it either. See Federal Reserve Interim Opinion to TILA – read completely. Security investors in pass-through REMICs (beneficiaries) are NOT the creditor.

    Courts need to reconcile outdated state laws with new Federal Law and with bankruptcy courts – which already demand identity of the creditor.

  2. Foreclosure Defense Attorney Steve Vondran says:

    Thank you for your post on the Truth in Lending Amendment. I have a blog post I will be posting on this shortly that will outline the issues you have raised. Well done!

    Steve Vondran

  3. Steven Ridley says:

    Does the lender then have any right to you’re home if they do not have the right to do bussiness in california?
    Becouse Wachovia has not had a liscence to do business as a mortagee.
    second what if there is a no right to demand feature was on the disclosure, what does this mean?

  4. Douglas Whaley says:

    I’m a law professor at Ohio State University, giving talks around the country above the UCC’s clear requirement that the original promissory note must be in the possession of anyone taking action on the note. I was unaware of these California cases until recently when they were called to my attention. Surely California law doesn’t permit a foreclosure if the debt is not in default. The UCC provides that the debt is not in default (“dishonored”) until demand is made, and, if the maker so requests, the note itself is produced and presentment thereon is made to the maker (see me for citations). Thus in California the response to a threatened foreclosure is that the debt is not in default, hence foreclosure is forbidden.

    Your thoughts?

  5. Foreclosure Defense Attorney Steve Vondran says:

    Great comments on the TILA amendment. We are seeing some serious improprieties of passing the note around like a whiskey bar at a frat house. In one cse, we rescinded the loan against OneWest bank who said Wells Fargo was the “investor” and now, after a prelimiinary injunction is in effect, they tell us HSBC securitized loan trust is the owner of the loan. Some heads are going to roll with this revelation.

  6. Edgar Longenecker says:

    Fraud, vitiates a contract. Produce the cancelled check, to prove that the pretender lender foreclosure mills, are the owners of the note, or, represent the owner of the note, and prove the recorded chain of ownership/title, to show that their non judicial foreclosure action is not vitiated by fraud, and, is properly conducted; proven by sworn testimony, under penalty of perjury; prove that, the note reattaches itself, to the mortgage, after the note has been sold into World Trade [Center]. and prove that their are no more pretender lenders, that have as much claim to the note; fractionalized, and,hidden in bundles; prove by sworn testimony, that, the object of the MERS/Bankster scheme, was not so the notes could be securitized, into many bundled note bricks, with fraudulent intent, so as to sell the note and its’ clones, away from the mortgages, and that now, to reattach, the note to the clone, as in, California, not even to produce the note, then: Produce the proof of recorded ownership, at the exclusion of all others, under penalty of perjury, and, that, the MERS/Bankster collusion, from where Deutch Bank, allegedly purchased the note, necessitated that the Banksters marked the notes “Paid in full,” and that’s wherein the fraud on the court, lies; wherein, testimony under now attempting to exercise non judicial provision of a voidable fraudulent mortgage grab, now, voided, stems from a paid in full note; that severs any nexus between the mortgage, and, any one of the notes or its’ clones, photocopies, perjuries, or forgeries. and, bogus on their face notes; known by their percentage designations to be suspect, as to value, and, yet, purchased anyway, by, who knows how many duped Ponzi Scheme “purchasers, there, were, of counterfeit notes, “securitized, [hidden], within, various bundles ? Fraud it is, that, concealing the “Paid in full,” designation, of the notes, entered, into the MERS/Bankster collusion, now, hides, fraudulently, behind the California courts’ non regulated proof, of possession of the note; requirement, but, that does not , lawfully, prevent, “Paid in full,” marked notes, skimmed from the mortgages, from being fraudulently, suspect, and, hidden, due to further pretender lender fraud., in so doing, as if to exercise, damage control over the bogus notes the Bankster/MERS scheme, sold; with, now, :first come, first, made whole, by, embezzling houses, already, marked: “Paid in full,” by the banksters/scam; now, again, by using the courts to facillitate, another scam at law; while making lieyers rich, by, concealing, the Bankster/MERS, “Paid in full,” MERS, scheme. The fact that the courts in Schizofornia, do not require the notes to be produced; in any form; cloned, forged, photocopied, perjured, etcetera, clearly, facillitates this world trade fiasco, for reasons, surely suspect, but, does not, in particular, give a free pass, against other provisions of law, requiring, proof of purchase, and, proof, that, what was purchased, was not marked: “Paid in full.” and, so voided as leverage against mortgages, knowingly, and with, investment costs’ percentage viabilities, , accordingly; and the concealment of these other facts, continue the frauds, and, concealments of frauds, conspiratorially , and any and all of these frauds, vitiate, the contractual provision agreed to, allowing the non judicial clauses, to deny judicial, oversight; that, itself, within the requirements of, “A properly conducted, sale. with no fraud attached; to, vitiate, the contract; a contract; which fraud, which, contract, [?] ; let’s get a judge to figure that out,. as to, unconscionability contracts, and these subsequent frauds to keep this scamMERS/Banksters’ scheme, afloat… Has one Bankster been arrested for skimming the notes off the perfectly good mortgages, rendering, the mortgage, without, a, to be paid for note, then marked “Paid in full,” and sleazed into the MERS concept, and, leaving the note, sold as an asset, with no mortgage collateral, to back it up; making, either, worthless. ..? Read this hustle from any direction, and get the picture, and, ask yourselves, why, Schizofornia judges are in on it; defending such organized crime at law… This headache, prepared, here in Ahnolds’ Gulag, Stalag Skew, at Y-Rico…Schizofornia… With All Rights Reserved… Yours and Mine…

  7. Edgar Longenecker says:

    Audit MERS, to prove how many forged notes, they have sold into World Trade [CENTER ?]…. Schizofornia, is of course, the laws’ twilight zone, so, without the produce the note, to prove FORGERY, and, a broken paper trail, of unrecorded deeds, it cannot be shown, who actually has the right to foreclose, with, a voided note to mortgage, proving that nobody can prove a right to foreclose…. Are we to believe that Banksters, skimmed the notes off mortgages, just to evade $35.00 filing fees ? Selling forged notes, hidden in bales, of more forged notes, is no doubt, the cloaked, thievery… Now, sleazing the note clone, back to the mortgage, is going to cloak, the intermediate, racketeering, to, allow these hustlers to pretend that the note to mortgage, was never voided ? Why did bank examiners allow, such embezzlement of bank investor assets; voiding, all mortgages, without fraud, to sneak them back together; what’s in it for the govern mentals ? Edgrrr……….

  8. Foreclosure Defense Attorney Steve Vondran says:

    You are correct if you are speaking about using “show me the note” or “produce the note” as a means to obtaining an injunction to a non-judicial foreclosure sale. Have you filed an adversary proceedings out of curiosity? Steve Vondran, Truth in Lending Attorney.

  9. Foreclosure Defense Attorney Steve Vondran says:

    You are asking questions I wish I knew the answers to. As my dad used to tell me when I was a kid……the answer to 99 out of a 100 questions is “MONEY.” Steve Vondran Foreclosure and bankruptcy lawyer.

  10. Alex Zarcone says:

    The Supreme Court of Massachusetts just ruled against Wells Fargo and US Bancorp in two foreclosure cases voiding the foreclosures at issue. The owners of the loans couldn’t prove that the mortgages had been assigned to them. One judge stated that the two banks showed “utter carelessness” when they documented title to their assets. So the defense there seemed to be “show me the assignment”. Interestingly enough, when I was in court on Friday in San Diego, as there were a lot of pro pers present, the judge in his comments to them mentioned this defense as well in relation to credit card debt.

  11. Foreclosure Defense Attorney Steve Vondran says:

    Thank you for the comment. We are posting a blog on this case today or tomorrow. Validates much of what we have been saying in that so called “lenders” who never lent a dime, are foreclosing on people without any legal proof, and when called out often they cannot prove they own your loan, or owned it at the time of foreclosing. The case validates that the law DOES matter. Makes you wonder just how many homes were sold without legal ownership. But they banks will argue up and down, and right to the judges face, that none of this really matters, the borrowers are in default, and this is all just a technicality. Truly amazing. Watch for our blog on the case.

  12. Anonymous says:

    We’d been in our home for 11 years and had never been late on our mortgage payment when World Savings sent us a notice of intent to foreclose. When we called, they claimed that they had no record of having received our last 3 payments. We provided PROOF that these payments had been made, but before they could rectify our account, they were bought out by Wachovia. When we attempted to call World, we were met with a message stating that World Savings was now Wachovia and gave a number to call them. When we contacted Wachovia, we were told that the World accounts had not been transferred to Wachovia and we’d have to make payment to World Savings. We then went to what used to be the World Savings office, but it was now Wachovia and they again refused full payment in cash (which according to a law I happened to come upon, nullifies the debt), claiming again that they could not accept payment for World accounts. This went on for months, us trying to pay our mortgage, them refusing. Finally, in January, we received a reinstatement quote from Wachovia, but again, when we tried to make payment, they claimed that World Savings accounts had not been transferred to Wachovia!! I have a copy of an email from Wachovia dated 8 days after that reinstatement quote, stating that because World accounts had not been transferred to Wachovia, they could not accept payment for World accounts! This continued for months until they finally foreclosed on our home! I spoke with a local attorney who told me he’d had at least five other clients and prospective clients who had the exact same situation with Wachovia, this just one attorney, with one small law firm in one small town in California! (he didnt take class action cases and we don’t have $15,000 for a retainer) Based on how this happened, I would assume hundreds or even thousands of people were wrongfully foreclosed on by Wachovia. We are currently living in a warehouse with our four young children, trying to run our formerly home-based business in the middle of chaos. With damaged credit and a displaced business, our future looks bleak, thanks to Wachovia’s incompetence and refusal to accept responsibility for their error.. unless of course, it was no error. I have a theory that they may have done this deliberately, to unload the pick-a-payment loans (one of which we had) that are currently the target of another class action suit.
    If you can help, we would be eternally grateful. If not, we would greatly appreciate referral to an attorney who could take this case on contingency. We have a mountain of very solid proof of allegations.
    Thank you for your time and consideration.

  13. Foreclosure Defense Attorney Steve Vondran says:

    Generally speaking, it is always tough to challenge a wrongful foreclosure after the sale, that is not to say they cannot be won. We rarely take these cases unless there is clear cut fraud/forgery in the recorded chain of title. Good luck.

  14. ANONYMOUS says:

    California Commercial Code 3301. a note may only be enforced if one has actual possession of the note as a holder, or has possession as a non-holder with holder rights.

    That means not only must they have the note but it also must have proper endorsement.

    POSSESSION and ENDORSEMENT

    only if the purchase and sale agreement was valid would it meet possession requirements under [3-301(a)and(b)] and to be considered a HOLDER by reason of [CC 1-202(b)21] would not qualify under [CC 3-301(a)] without endorsement.

    quote: ONLY when the underlying enforceability issues of the PROMISSORY NOTE are ESTABLISHED can an entity then look to any DEED of TRUST which is only an accessory SECURITY INTEREST which then gives rise to a foreclosure right.

    Assignment of the Deed of Trust does not give right to automatically foreclose and it is impossible to trigger 2924 without a note or if the note was obtained after a recorded notice of sale.

    The Deed of Trust is only incident to the underlying Promissory Note and is legally null without it. Therefore it is impossible and absurd to legally foreclose on real property without the note.

    Judicial or non-judicial, California or Connecticut, to simply record a false notice of default and notice of sale is fraud and grand theft is a felony by law. And any person(s) with authority sworn by oath to uphold law that turns a blind eye or simply ignores it is guilty in aiding and abetting such crimes and should be equally punished.

    For the people by the people!… not, for the banks and against the people! and if our court system continues to allow banks and politicians to be break the same laws we are upheld to and leaving the people helpless without recourse or remedy then what further the purpose of our courts and laws?

  15. Foreclosure Defense Attorney Steve Vondran says:

    NOT SURE IF I COULD HAVE SAID IT BETTER MYSELF. YES, IT IS AMAZING WHAT THE BIG BANKS ARE GETTING AWAY WITH JUST BECAUSE PEOPLE ARE IN DEFAULT.

  16. Jim Pyles says:

    This ruling seems to defy common sense. If the someone holding a deed of trust can foreclose without also holding (and therefore being able to produce) the note … and if the note has been conveyed independently of the deed of trust to another party … then that party can *also* demand payment on the note (albeit now unsecured by the deed of trust). This seems to open up the homeowner, now bereft of home, to being abused not once, but twice. How can this possibly be?

  17. Foreclosure Defense Attorney Steve Vondran says:

    Thank you for your comments. In Arizona and California the “security follows the note.” This is one of the trick legal doctrines they get to use. Of course, that assumes they have the note which is the big joke in the first place. I suspect judges do not want to ask for the note because at the end of the day they would, and we would find out, the entire banking system is based on loans the financials institutions cannot prove they actually own, and there is no unbroken chain of endorsed notes from your loan originator up to the securitized loan trust that claims your loan is in there. Pretty amazing really.

  18. cleopatra says:

    November 2006 I applied a mortgage loan to wachovia. From Nov 2006 to July, 2007 My mortgage loan was with other bank. July,2007, Wachovia offered me the home loan which I accept. The paper work of Nov. 2006 was “piggy back” to July 2007 mortgage but nerver issued a deed of trust. In 2008, I defaulted my payments for six months. I was told over the phone that my house will be in forclosure if I dont update my payments. I borrowed money and keep my loan up to date. At this point Wells, I communicate with wells fargo , no longer wachovia. I was granted loan modification with graduating increase of interest in 5 years. Just recently, May, 2011 i received a notice that my loan was fully transfered from Wachovia to Wells Fargo.

    My question is If I dont have deed of trust, can Wells fargo produce one for me? Can Wells fargo foreclose my house if I defaulted? Does Wells fargo have the legal right on my property because the note was transfered by Wachovia to wells fargo knowing that wachovia doesnt have the authority to do mortgage business

  19. Foreclosure Defense Attorney Steve Vondran says:

    We cannot give legal advice over the internet. If you have a foreclosure or bankruptcy question, please contact us. Thank you.

  20. Nora says:

    Under what would be called a normal situation, when then banks and lenders and or servicers were legitimately foreclosing on homes I can understand a judge saying in a non-judicial foreclosure that that legitimate entity does not have to produce the NOTE, however, in today’s circumstances where banks, lenders, and servicers are fraudulently fabricating documentation in order to foreclose, they should and must be forced to produce the NOTE!

  21. Pamela Zander says:

    Forensic Documents Research – 760) 244-6248
    Worked at Pioneer Title through the 80′s
    Attended the American School of Mortgage Banking
    Certified by local college for loan origination
    Escrow II /Past Notary and Loan Signing Specialist for Notary(did not renew 2009).
    Just finished the BSOL-Program at Azusa Pacific University
    Owner of Zander Construction/30 years
    Pamela Zander says:
    If you had a table funded loan, which means the funding source came from the collection of approx. 10 million loans to combine a “pooling apreement,” that source did not fund the loan, you did! The OCC examines national banks to ensure their safe and sound financial condition and ensures compliance with applicable banking laws, rules and regulation. The CAG (Customer Assistant Group), was established to assist customers who have questions or complaints involving national banks. Same thing applies to Federal Banks.

    If the bank failed to address any of your issues and/or concerns or you disagree wih their response, contact the CAG in writing within 30 days of receipt of the banks letter. I too, have become a victim of “predatory lending practices,” because the wolves have found an escape, by which to scam the entire country. Who’s to blame? When the Clinton Administration revisited the Glass Steigal Act/1933 and the Community Reinvestment Act/1977; Clinton lowered the hammer on the banks to force their involvement to include low income to moderate income earner’s the advancement of creative financing to own a home. The problem is that it created that web of finance that caught even the most careful business person in the trap. We have just experienced the maturity of the three year ARM’s; wait until the five year ARM”S hit. Oh my socks! This will hit in approx. 2012 and will set the USA spinning in the worst depression one has ever seen. These subprime loans, qualified consumers for the first part of the loan, but not when the adjustable rate interest “kicked in.”

    Fight! Fight! Even if you have to take the defunct “pretender lender” to court. Chances are, it is not the original/bank, a so-called lender from the table funded loan, as they are no longer in business. In fact, if a bank such as Bank of America has your loan; they have become the servicer-not the owner of your loan. Write a “written qualified request.” Ask for the Corporate Transfer, the (Assignment of the Deed of Trust and the Assignment of Trustee), which is validated by the Notary Seal and Signatory and ask where it was recorded. You will find the original Trustee on the face of the Deed of Trust. If this does not occur, then ASAP, send the Board of Directors of the Federal Reserve, a signed letter in a heading called REVOCATION OF POWER OF ATTORNEY for NOTICE TO CANCEL – using a Notary Signatory form. Your bank will usually do the Notary for free. Also send one to the Bank/Servicer. Record it in the County Recorder’s Office, where your home is located. This may cause a title waive, but it can be used as a good defense for your case.

  22. Foreclosure Defense Attorney Steve Vondran says:

    Thank you for your general comments on predatory lending. We know many of these things to be true. How to best leverage the violations is the question.

Trackbacks

Check out what others are saying about this post...
  1. [...] you cannot argue PRODUCE THE NOTE IN A PRIVATE TRUSTEE SALE.  See our blog posts in this regard: http://www.foreclosuredefenseresourcecenter.com/2010/03/can-a-california-homeowner-demand-that-the-l….  Now normally I would say this might be subject to a legal challenge (lawsuit and TRO keeping a [...]

  2. [...] you cannot argue PRODUCE THE NOTE IN A PRIVATE TRUSTEE SALE.  See our blog posts in this regard: http://www.foreclosuredefenseresourcecenter.com/2010/03/can-a-california-homeowner-demand-that-the-l….  Now normally I would say this might be subject to a legal challenge (lawsuit and TRO keeping a [...]

  3. [...] you cannot argue PRODUCE THE NOTE IN A PRIVATE TRUSTEE SALE.  See our blog posts in this regard:http://www.foreclosuredefenseresourcecenter.com/2010/03/can-a-california-homeowner-demand-that-the-l….  Now normally I would say this might be subject to a legal challenge (lawsuit and TRO keeping a [...]

  4. [...] Here is the previous blog we wrote on this topic in California: http://www.foreclosuredefenseresourcecenter.com/2010/03/can-a-california-homeowner-demand-that-the-l… [...]

  5. [...] fairly common foreclosure defense strategy has not been very successful nationwide and is unlikely to win the day in [...]

  6. [...] Posted by Foreclosure Defense Attorney Steve Vondran on March 6, 2010 · 26 Comments [...]



Speak Your Mind

Tell us what you're thinking...
and oh, if you want a pic to show with your comment, go get a gravatar!