I’ve reached a milestone! It’s time for a call for action!

Thank you to all of you who have joined my blog project that I began nearly four years ago, as today I celebrate that I’ve reached a milestone of over 2500 subscribers so it’s time for a call for action!

This project began as a catharsis for me to get out my story regarding my lawsuit I filed against Wells Fargo for fraud while using it as a platform to inform others around the United States and the world of what I have learned of the fraud and corruption in the foreclosure industry, the financial industry, and our judicial system here in the United States  That lawsuit was the the hardest thing I have ever had to do and it came at the hardest time in my life.

I received my first fraudulent foreclosure documents from the defendants on Dec. 31, 2010,  while being current on my mortgage, despite the fact that I had not worked as a builder and real estate developer for nearly two and a half years at that time due to the collapse of the economy created by the defendant and other Wall Street financial behemoths, I was confused at the entire situation.  With no money to hire a lawyer, I had to act as my own attorney.  I quickly began researching and collecting information in order to formulate a lawsuit which was filed in February 2011.   Learning the legal language, rules and procedures in order to understand fraud and contracts and the laws of the foreclosure industry in the state of California was a very daunting task.  Learning the procedural intricacies of the rules of how to write and submit a lawsuit was also a very daunting task.  Doing both of these tasks at the same time while running against the timeline of losing my home was extremely challenging and very hard on my marriage.

I was able to stop the impending foreclosure action while the litigation took us through California Superior Court where I had filed the lawsuit originally.  Shortly after filing in the state, the defendants remanded the lawsuit to the federal court level to where I then needed to learn the new set of rules dealing with that court system as well, all the while, maintaining the timelines and filing deadlines of all of the motions, responses, and other moving documents that are part of a lawsuit in our judicial system.

Over these past years of writing this blog I have come in contact with thousands of people who have had to deal with their own foreclosure stories.  Each story is unique to every family and their own battles.  Some have had to deal with financial troubles or health issues or both while at the same time attempting to save their home.  There is one thing that I have noticed talking with every person and helping many go through hundreds or thousands of documents is that they have had to learn and come to realize the depth of fraud that is involved.  I have found that there is fraud in every case I have ever come across.  The level of deception by the financial industry is astounding.

Not only have I been working on this blog to help expose some of the fraud in the financial and foreclosure industries, I have also been authoring two books that I am releasing.  One is titled, “The Unlawful Unlawful Detainer” which details my own unlawful detainer case, and the other is titled “A Quantum of Justice” which follows my lawsuit against Wells Fargo Bank and goes in depth of the financial and foreclosure industries, and how it affects you at home without you even knowing.

A CALL TO ACTION

As I reach this milestone of 2500 subscribers I have decided to begin the production on the documentary film that will follow up the two books I am releasing.  I will be interviewing Senators, Congresspersons, judges, lawyers, lobbyists, and many homeowners throughout the country to help me consolidate and expose the level of fraud that is involved in every home across the United States.

Now, you may have noticed that I stated in “every home” and not “in every home loan transaction” across the United States.  This is because I will show how there are people who have been foreclosed on by a bank who paid cash for their home and have never acquired a loan.  I will show that there are people who have been foreclosed on who have acquired a loan while they were dead and buried.  I will show that there are people who have been foreclosed on by banks that they have never done business with.  This and much more will be exposed giving all pause as to their level of trust in our corrupt systems.

I am currently working with a couple of CA state Senators to help change some of the rules of law that have allowed some of the foreclosure atrocities to manifest.  I am helping to shed light and to show them what legal nuances are being manipulated in order for the millions of illegal foreclosures that have taken place and continue to happen on a daily basis.

If you have not yet subscribed to this blog I urge you to do so and you will receive discounts for my books upon release.  You will also receive a discount on the DVD or download of the film when it is completed.  There will be other specials that will be offered to my blog subscribers as these projects move forward, so don’t hesitate to subscribe today!

If you have a story to tell  you can contact me through my blog.  I welcome to hear from you, my readers, who now span throughout the globe.  I look forward to hearing from you as I begin to prepare my journey across this great country of ours and sit across from you at your own kitchen table to discuss these issues that our government has done nothing to help subside.  My film project will take the information exposed in the Oscar winning films “The Inside Job” and “The Big Short” and bring it home to the living rooms of every family across the country showing how all of this corruption affects you and you don’t even know it.

Again, thank you for your continued readership.  Please tell your friends and others you may know who might benefit from this information and have them subscribe, as you have, as well.

If you would like to help be a part of this documentary, or know someone who might be in a position to assist in this project, I welcome to hear from you through my blog.  I know I have many readers from the film industry and many readers that might be in a position to help financially to be a part of the Executive Production team.  I welcome to hear from you.

 

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

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©2014-2017 Doug Boggs All Rights Reserved

Is digital technology making politics impossible?

Is digital technology making politics impossible?

Douglas Boggs Nov. 26, 2017

Is digital technology making politics impossible? The simple answer is yes, and no. It’s like asking“which came first, the chicken or the egg?” The answer just isn’t that simple.

There has always been a very close relationship between politics and technology. Governments fund the research that drives many birthing technologies that then help to create many of the problems with which the government then must eventually attempt to solve. It’s an inherent conundrum of the dog chasing the tail.

Technology has always seemed to have been a double edged sword when it comes to politics. It takes its shape in many forms. We can reference both Hitler and Roosevelt and their power and popularity with radio in order to present this point. Hitler’s intense emotional “Zeig Heil” speeches gave rise to the hands of the Nazi party, and Roosevelt’s friendly fireside chats allowed him to enter nearly all of the living rooms of America. We recall the first televised United States Presidential debate between Richard Nixon and John F. Kennedy helped to solidify the now well known catch phrase of “Never let them see you sweat.”  Of courser, these types of arguments can always find a pro and con angle, although it would depend on which political platform one might be standing on.

Technology guides some political leaders to help them find solutions to their cause. Truman and the atomic bomb would be one of those examples. There was no reason these two bombs needed to be dropped onto the Japanese cities of Hiroshima or Nagasaki, on August 6th and 9th, 1945.  These two attacks killed hundreds of thousands of innocent lives and decimated generations with its fallout. It was only a few months before, in April 1945, that Hitler had been defeated and by only August of that year the world knew, as well as Japan, that the Japanese could no longer win. Also, at that same time Russia was retreating under their own internal collapse. World War II was ending and America was shining bright as ever. However, Truman felt the need to make a statement to the world of the dominance of American power.

It seemed that Truman felt his message would be better served through the massive annihilation of innocent lives rather than through the inevitable round table agreements of acquiescence to the new western dominance. This new technology created the Cold War that lasted decades. That continued quest of who is the biggest bully on the block. It defined the adage of whomever has the most destructive toys wins.

Technology and politics took a turn in the late fifties to a place where no man had gone before. We found ourselves fighting over space, that final frontier.

The technology racing toward the end of World War II was moving towards rockets. Nazi Germany was leading the way before they lost the war and the United States took their chief engineer named Von Braun. It was Von Braun’s dream to put a rocket on the moon and he didn’t seem to care who allowed him to accomplish the task. When Germany was defeated the United States captured Von Braun and most of his team, who later helped develop the American space programs and military missiles in America. Politics seemed to be holding its own with technology.

Having Von Braun helped the United States compete in the new space race of the “Cold War”. This push helped develop the computers that were necessary to put a man on the moon. Since the Russians got to space first, the Americans wanted the moon. As Von Braun did his work, IBM did theirs by creating the initial computer programs that would eventually put a man in space, and in the words of Frank Sinatra in 1964 “Fly Me to the Moon”, America did in July, 1969.

The space race created the satellite technology that followed with the new powerful computer programs. Technology was moving ahead seemingly exponentially and politics was its driving force. The United States was also began moving forward with a new idea, called the internet.

In the early 1960’s. The U.S. Dept. Of Defense began awarding contracts for packet network systems, including the development of ARPANET. This was an early packet switching network and the first to implement the protocol TCP/IP, which is the foundation of the internet. This research began in several different computer science labs around the United States, United Kingdom and France. The first message ever sent over the ARPANET was from computer science Professor Leonard Kleinrock’s lab at UCLA to the second network receiving at Stanford Research Institute.

In the beginning of the internet the digital technological platform was welcomed throughout the world and nearly everyone who could jumped in. It was the epitome of the freedom of information. The internet craze created instant millionaires and billionaires and was heralded as the way to level the expanding global playing field. Children in Nairobi could feesibly have access to the same information as a child in the United States. When this new technology began it was open, chaotic and de-centralized. It spanned the globe creating an international cross platform allowing people on opposite sides of the world the ability to share ideas and information with each other for free. It allowed borders to be crossed that had never been crossed before. It was this that soon made the governments to take notice and begin to get nervous.  Despite that it was the United States government that funded the invention of the architecture of the internet back in the 1960’s.

Not long after, in the 1980’s, at CERN, in Geneva, Switzerland, we find the British computer scientist Tim Berner-Lee and his creation of the World Wide Web. This technology included the rise of instant communication by email, instant messaging, VoIP telephone calls, video calls, discussion groups, blogs, and eventually leading to the powerful social media networks we have today. Some of those Social media giants in the United States include Facebook, Twitter, Google, and others.

Now, we’re in a world where the technology is about information. Digital information data is the gold standard in capitalism and in politics. Corporations capture and control information. If corporate interests, such as oil companies utilize their ability to control information on climate change, as an example, and are able to convince the public that climate change is a fraud and if successful at this manipulation of information then they are able to save billions or perhaps trillions of dollars in taxes, regulations and enjoy increased profits. Recently, we have seen evidence of acts such as this in the corporate world with Volkswagen defrauding their customers into thinking that their diesel cars produce lower carbon emissions than the company claimed to have said that they did. They got caught defrauding the public of over 11 million cars sold. We have also seen the evidence of information control or rather the attempt to control information in the political arena with President Richard Nixon and the Watergate scandal eventually ending in his impeachment.

When the people are well informed, they can be trusted with their own government.

Thomas Jefferson Paris-1789

Information is power. Corporations want it, governments want it, and people want it. Corporations want it in order to maximize their opportunity for profits. Governments want it to control the huddled masses. People want it to properly monitor what the governments and the corporations are doing in order to be able to appropriately hold those parties accountable for their wrongdoings against the people, the environment, and the freedom of information itself. With these three parties are desperately attempting to get along in the challenging digital world we now live in and information is under attack for domination, manipulation and control.

As it was with radio, telephone, television, print media, and film industries the internet companies quickly began consolidating as the big corporations swallowed up the small start-ups. This is the process of capitalism and it seems as though, referencing back to Econ101 that this is a good result.  However we have reached a point where there are now only 6 corporations that own nearly all of the radio and television networks in the United States. So, today these large media corporations are able to control most of the information that the general public sees and hears on a daily basis.  In fact, they control and can manipulate the messegaes that the public sees and hears by the minute.  These corporations also lobby the politicians and all political parties for favorable votes in order to deregulate their industry, or offer tax breaks in exchange for the large campaign contributions. This is where we begin to lose the line between freedom of the press, the independence of journalism and politicians acting in the best interests of their constituents rather than for the profits of the corporations.

The same kind of monopolies that were created through the deregulation of the telephone industry using the Telecommunications Act of 1996 has happened with the new social media/information companies today. The internet has become capitalized, monetized and monopolized and is now controlled by some of the largest corporations in the world who now subsequently control much of the information that feeds the minds the global populace. This is known as institutional corruption. The public has become complacent with such type of corruption that it is now considered to be a type of legal corruption rather than illegal corruption. Which undermines the overall effectiveness of government. Through this type of corruption it may result in corrupt means as to how congress funds elections or the message of politicians and even the political message and voting of entire political parties.

The internet was originally designed to be end to end, peer to peer and a way for the average person to communicate and organize without control by corporations or governments. This was the architecture of the internet from its inception. As the internet has grown to become such a powerful global force of the acquisition and delivering of information governments have been trying to find ways to keep their foot in the door in order to have more control over this technology. Can the internet be kept free from government censorship, control or manipulation? It depends on the country. Time will tell. We have already seen evidence that the United States government has used the accepted legal corruption process of listening to and recording every citizen’s telephone calls without consent or a warrant. The liberties of privacy, as defined under the Constitution, have been slowly eroding away.

With the release of volumes of classified documents by the whistleblower, Edward Snowden, we have come to find that our privacy has not only been under attack, but has been stolen.  Methodically over time the government and corporations have created a means to find out more about us than even we know ourselves and use that information without a warrant or our consent.  Politics and Technology can make interesting bed partners. We found that Google, Yahoo, Microsoft, ATT, T Mobile and other corporations were freely disseminating and delivering billions of terabits of information to the government about the lives of every American. Some people say, “That’s okay, I’m not doing anything wrong. As long as I am safe and our freedom is protected.” That naivete makes them fail to realize that their freedom is already deteriorating as these actions whittle away at the protections within the Constitution.

We, as a society, have come to accept a level of institutional corruption with our government rather than holding them accountable. Snowden simply pulled back the curtain and exposed the existing institutional corruption. As a society we were sold a line of information by the government who said they were doing it in the best interest of the people to keep us safe. Much of the public remain complacent and are simply too busy posting pictures of their lunch or cats rather than to use that same technology to create a groundswell of citizens rising up and holding our elected leader accountable for these actions. Although, with Egypt and Tunisia creating what became known as, the Arab Spring, taught us different and began to show the world the power of digital technology.

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”

Benjamin Franklin to the Pennsylvania Assembly 1775

Before President Trump was sworn into office he was already following President Obama’s lead using the power of digital media. Trump’s is a prolific Twitter “er” in order to communicate with his voters, fans, and followers. The President-elect began disseminating Tweets about his political views and possible upcoming policies all for the world to see. He quickly became known as the first President who would be Tweeting his politics 140 characters at a time. Certainly a new way of doing things. Many people agree that this is not the most appropriate way of leading the world. He breaks stride in the procedural processes of global politics as he proclaimed to his voters that he would do just that.

Wikileaks changed the game releasing its first document in December 2006 of a decision to assassinate government officials signed by a Somali political figure who was on the U.S terrorist list since 2001. Since then Wikileaks has released terabits of corporate, government and private citizen’s information. They make little effort to remove sensitive personal information. They continues to hold governments, politicians and corporations feet to the fire. It was in January, 2017, a Twitter account with Wikileaks released a press releases announcing in would create a data base of Twitter users. Twitter later released a statement saying “Twitter bans the use of Twitter data for “surveillance purposes.”

Trump has enough power in the volume of Twitter followers to make the mass media kowtow to his whimper. He has stated to the main stream media outlets that they were not being fair to him. If they continued to pose him in a negative way he will simply not allow them to interview him unless they can guarantee him a favorable view. As we will soon find with the Supreme Court vacancy to be filled with what he has promised to be a conservative judge the idea of free speech to be challenged. With a conservative Supreme Court, a Republican House and Senate, and Trump as President, this creates dangerous precedent that could find detrimental results to the First Amendment.

In order to truly answer this query of “is technology making politics impossible?”, we must keep both eyes open. In order to trust in technology we must be able to maintain the independence and transparency of the medium. This is our only hope to be able to hold governments accountable.

Google had been doing business in China with a version of its service that conformed to the government’s oppressive censorship policies. Google officials stated at the time that they felt the most ethical option was to offer some services, though restricted due to China’s censors. The company wanted to get their hands on the enormous Chinese market. The Chinese internet market sees twice the amount of people online in China than the entire population of the United States, and the numbers continue to grow. Google had been doing business for four years there before a cyberattack was discovered from within the country itself. Google found that the Gmail accounts of numerous Chinese human rights activists had been hacked, so they shut down their operation. Instead of complying with the Chinese regime and continue to censor their platform they chose to direct all of the Chinese traffic to an uncensored version of its search engine based in Hong Kong. The Chinese government reacted and this action in effect made Google’s services inaccessible to the hundreds of millions of internet users in a handful of weeks.

As digital technology has created a platform of disseminating information across the globe it is quite a balancing act for corporations to maintain their business practices and abide by all the varying countries laws and regulations. What is good for the goose is not always good for the gander. There are much more repressive governments than others around the globe and there are more variable ideas of what hate speech is or what exactly human rights are in one country than another.

The key to all of this is transparency?  People must be able to know if the content is being monitored and censored by the governments. The freedom and power of holding governments accountable is based on the depth of the information that the government is withholding from the people themselves and how the various media companies are complying with the specific governmental regulations that they are tasked with.

Twitter took a major step forward and created a process in Iran that is known as two-factor authentication. This is a login option that allows users with Iranian phone numbers to use two activation processes in order to access their services. This action created a higher level of security for the resistance of any governmental attempts to censor or access any of the user’s content.

We find that digital technology corporations are ahead of the curve in attempting to maintain a free and independent internet. However the battle remains. Politicians are not laying down to the technology. Across the globe there are varying levels of censorship and government control.

Have you ever wondered why in America we can no longer purchase Blackberry devices or service? But, we can see the President and other politicians using the device and service? This is due to the fact that the Canadian firm’s platform is so difficult, if not impossible, to hack. The United States government wanted to be able to have access to these devices just as Snowden exposed to the extent that they have access to all other carriers and devices. But, the Canadian firm would not budge to the American government terms. So, we see our politicians using unhackable devices while “we the people attempting to form a more perfect union” are left with devices and services that the NSA can monitor, record, and even turn on and off remotely. Benjamin Franklin would be rolling over in his grave.

The politics is clear that the government has no problem with acquiring more information through the legal corruption of our individual rights and freedoms as outlined in the Constitution. And so far the people have made it clear that they don’t seem to mind as long as they are “safe and free.” From the political side of things digital technology doesn’t seem to make politics impossible. But we are only a few Tweets away from this new President to see if there is another side to this story.

SELECTED BIBLIOGRAPHY

1.. https://www.theguardian.com/commentisfree/2016/oct/31/politics-digital-technology-brexit-donald-trump

2.  http://spectrum.ieee.org/static/grokking-democracy-a-political-world-transformed-by-digital-technology

3. http://text-patterns.thenewatlantis.com/2016/10/social-media-emotion-and-politics.html

4. https://books.google.com/books?id=kujHAAAAQBAJ&pg=PA3&lpg=PA3&dq=are+digital+technologies+making+politics+impossible&source=bl&ots=VbGlXxmoQ5&sig=pQGsDC6weVBb48TCCciQcZkdu2w&hl=en&sa=X&ved=0ahUKEwj0tqG_g7_QAhUFxmMKHVSeDv44HhDoAQhIMAk#v=onepage&q=are%20digital%20technologies%20making%20politics%20impossible&f=false

5. https://books.google.com/books?id=CE2VGH7wJcYC&pg=PA58&lpg=PA58&dq=are+digital+technologies+making+politics+impossible&source=bl&ots=Idh6CRuLTE&sig=QfMHFfZ9R3Mzn7Zo42-WRWNA-1c&hl=en&sa=X&ved=0ahUKEwi7gsXtg7_QAhVQ4mMKHQ_MCHY4KBDoAQhIMAk#v=onepage&q=are%20digital%20technologies%20making%20politics%20impossible&f=false

6. Four Horsemen – Amazon Video

7. http://www.telegraph.co.uk/news/politics/9624860/Douglas-Carswell-How-technology-will-create-true-democracy.html

8. https://www.accenture.com/us-en/insight-outlook-how-digital-technologies-are-changing-the-way-we-work

9. http://www.forbes.com/sites/gregsatell/2016/03/13/is-digital-technology-making-us-any-better-off-one-prominent-economist-says-no-and-he-may-be-right/#211c13132fa0

10. http://educationcommission.org/voices/commission-voices/making-the-impossible-possible-by-baela-raza-jamil/

11. http://www.pewinternet.org/2009/09/01/the-internet-and-civic-engagement/

12. https://www.bbvaopenmind.com/wp-content/uploads/2014/04/BBVA-OpenMind-book-Change-19-key-essays-on-how-internet-is-changing-our-lives-Technology-Internet-Innovation.pdf

13. https://greenallianceblog.org.uk/2015/02/11/why-greens-should-embrace-digital-technology-but-not-abandon-politics/

14. http://www.newyorker.com/magazine/2013/05/27/change-the-world

15. http://plato.stanford.edu/entries/it-moral-values/

16. http://civichall.org/civicist/political-debates-more-responsive-public-needs/

17. https://www.boundary2.org/2015/11/how-we-think-about-technology-without-thinking-about-politics/

18. http://www.researchinlearningtechnology.net/index.php/rlt/article/view/21366

19. https://is.muni.cz/el/1423/podzim2013/SAN236/um/Lister_a_spol_New_Media_A_Critical_Introducion.pdf

20. Mobs, Messiahs, Markets – Bonner/Rajiva

21. Bionomics – Rothschild

22. http://civichall.org/civicist/political-debates-more-responsive-public-needs/

23. https://www.utwente.nl/bms/vandijk/research/itv/itv_plaatje/Digital%20Democracy-%20Vision%20and%20Reality.pdf

24. http://qz.com/95696/you-probably-didnt-read-the-most-telling-part-of-orwells-1984-the-appendix/

25. 1984 – George Orwell

26. http://www.usatoday.com/story/news/politics/2015/07/03/federal-cybersecurity-opm-hack-not-impenetrable/29468695/

27. Blackberry – government uses but not public

28. http://www.huffingtonpost.ca/2012/12/20/technology-and-health-_n_2338439.html

29. https://www.uta.edu/huma/agger/fastcapitalism/5_2/Giroux5_2.html

30. Arab Spring

31. http://www.hillwatch.com/PPRC/Quotes/Internet_and_Politics.aspx

32. http://www.nbcnews.com/id/15221095/ns/technology_and_science-privacy_lost/t/privacy-under-attack-does-anybody-care/

33. https://www.theguardian.com/business/2016/nov/21/google-facebook-brexit-uk-technology-sector-skills

34. https://www.washingtonpost.com/news/the-switch/wp/2016/06/24/how-brexit-affects-the-global-technology-industry/

35. http://www.aljazeera.com/indepth/opinion/2012/09/2012919115344299848.html

36. http://journalistsresource.org/studies/international/global-tech/research-arab-spring-internet-key-studies

37. http://www.journalism.org/2012/11/28/role-social-media-arab-uprisings/

38. http://www.economist.com/blogs/erasmus/2016/05/after-uprisings

39. https://www.library.cornell.edu/colldev/mideast/Role%20of%20Social%20Media%20During%20the%20Arab%20Spring.pdf

40. http://www.nytimes.com/2012/02/19/books/review/how-an-egyptian-revolution-began-on-facebook.html

42. https://en.wikipedia.org/wiki/History_of_the_Internet

43. http://philhoward.org/wp-content/uploads/2014/09/Democracys-Fourth-Wave-First-3-Chapters.pdf

44. https://techcrunch.com/2016/12/14/donald-trump-meets-with-tech-leaders/

45. http://www.theatlantic.com/technology/archive/2016/01/why-google-quit-china-and-why-its-heading-back/424482/

46. https://en.wikipedia.org/wiki/Tim_Berners-Lee

  1. https://en.wikipedia.org/wiki/Space_Race
  2. https://en.wikipedia.org/wiki/Elon_Musk

 

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

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©2014-2017 Doug Boggs All Rights Reserved

David Kester v Citimortgage, Inc., et al. is NOT TO BE PUBLISHED

As of last week, Sept. 29, 2017, in the Arizona case of the Ninth Circuit Court of Appeals of David Kester v Citimortgage, Inc., et al., we have another precedent setting case that the courts have decided NOT to be published and to make public.  When a case is not to be published it simply means that the courts have ruled that the case is not to be used for quoting or able to be used as case files reference for another case.

This ruling is paramount to the evidence that the Trustee is owned and controlled by the banks and financial institutions.  The Trustee was never an independent third party to the transaction and did not act on behalf in any way to the owner of the title, David Kester.  This fact makes the argument, once again, that the Trustee is not independent and the financial institutions know this going in to the transaction, therein making a Deed of Trust contract void on its face.  The use of forgery to use a Deed of Trust contract is outlined in this opinion.  You can download this opinion by clicking the link below:

David-Kester-v-Citimortgage-Inc

You cannot use this case in your own case file, however you might find some of the opinion useful in your own argument structure.

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  NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUITDAVID A. KESTER, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant,v.CITIMORTGAGE INC.; et al.,
Defendants-Appellees.

excerpt

CitiMortgage and CR Title (“Defendants”) knowingly caused the recording of
invalid property documents in violation of ARIZ. REV. STAT. (“A.R.S.”) § 33-
420(A). The district court granted Defendants’ motion to dismiss. We reverse and
remand.

1. Kester has standing to bring this action, despite the fact that A.R.S. § 33-
411(C) provides that “an instrument affecting real property containing any defect,
omission or informality in the certificate of acknowledgment and which has been
recorded for longer than one year . . . shall be deemed to have been lawfully
recorded on and after the date of its recording.”1“The irreducible constitutional
minimum of standing consists of three elements. The plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May
24, 2016). Kester has adequately alleged all three elements. See Washington Env’tl
Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (“The plaintiff . . . bears the
burden of proof to establish standing ‘with the manner and degree of evidence
required at the successive stages of the litigation.’ (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992))).

First, “the recording of false or fraudulent documents that assert an interest
in a property may cloud the property’s title”; therefore, Kester has adequately
alleged “a distinct and palpable injury as a result of those clouds on [his former
property’s] title.” In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 783 (9th
Cir. 2014) (quoting Stauffer v. U.S. Bank Nat. Ass’n, 308 P.3d 1173, 1179 (Ariz.
Ct. App. 2013)). Second, this injury is fairly traceable to Defendants’ conduct:
despite receiving notice of the revocation of Kristen Lindner’s notary commission,
Defendants allegedly continued to use her notary services to execute Assignments
of Deeds of Trust, Substitutions of Trustee, Notices of Default, and Notices of
Trustee Sale for three months. Third, Kester’s “injury would be redressed by an
award of statutory damages, which [A.R.S. § 33-420(A)] makes available to
prevailing [former property owners].” See Tourgeman v. Collins Fin. Servs., Inc.,
755 F.3d 1109, 1116 (9th Cir. 2014), as amended on denial of reh’g and reh’g en
banc (Oct. 31, 2014).

2. The district court incorrectly held that A.R.S. § 33-420(A) requires Kester
to allege “material” invalidity in the trustee’s sale documents. Arizona caselaw
does not clearly resolve the question whether a plaintiff must allege materiality to
[…]

Click this link to download the entire Appeal ruling: David-Kester-v-Citimortgage-Inc

 

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

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©2014-2017 Doug Boggs All Rights Reserved

Precedent Jury Trial Against Allied

A jury in a suit that began in a Texas federal court back in 2011 as a whistleblower action recently entered a massive judgement against a mortgage originator for financial crisis conduct. The jury assessed the treble damages and penalties and increased the already large jury verdict in the amount of $93 Million into a $298 Million penalty.  The court also issued one of the first judicial opinions regarding how to assess penalties under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”).

This new ruling helps set precedent for arguing claims using FIRREA and violations of the False Claims Act “(FCA”).  It also helps set the stage for litigation against CEO’s of a corporation.  The suit held against Americus Mortgage Corporation, formerly known as Allied Home Mortgage Capital Corporation, one of its affiliates, and its CEO between 2001 and 2011.  The suit found that there was over a thousand false Federal Housing Administration (“FHA”) documents submitted for insurance claims by the Defendants.  The matter eventually led to a proceeding involving a five week lone jury trial, to which Allied was found to be liable for nearly 1200 loans that they collected FHA insurance claims to loans that had been wrongfully underwritten and were ineligible for FHA insurance, also 103 FHA insurance claims for loans originated in branches without the proper HUD registration and using registration numbers of other registered branches.  There also included 9 false annual certifications to compliance with HUD quality control requirements.  In addition, there were 18 falsified quality reports that were emailed from Allied to a HUD employee in 2009.

 

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2017 Doug Boggs All Rights Reserved

Guliex v PennyMac Holdings, LLC is NOT to be published in Official Reports

In the recently filed and “Unpublished in Official Reports” is the CA landmark case of Guliex v PennyMac Holdings, LLC.  Here in this post is the entire Opinion of the Appellate Court reversing the decision and the court’s subsequent holding on behalf of the Pro Per plaintiff Fred Guliex.  Although other parties are prohibited by law to cite or rely on opinions that are not certified for publication by the courts reading this might help shed light for parties to use in order to help shape their own arguments.

 

Enjoy and happy reading.

 

 

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FRED GULIEX, Plaintiff and Appellant,
v.
PENNYMAC HOLDINGS LLC, Defendant and Respondent.

No. F073142.
Court of Appeals of California, Fifth District.
Filed July 12, 2017.
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. CV280938, Sidney P. Chapin, Judge.

Fred Guliex, in pro. per.; and Stefanie N. West for Plaintiff and Appellant.

Aldridge Pite, Christopher L. Peterson, Jillian A. Benbow; Duncan Peterson and Christopher L. Peterson for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

LEVY, J.

Plaintiff, a homeowner and borrower, sued the defendant financial institution for wrongs allegedly committed in connection with a nonjudicial foreclosure sale of his residence. Plaintiff’s main theory was that the financial institution did not own his note and deed of trust and, therefore, lacked the authority to foreclose under the deed of trust.

The financial institution convinced the trial court that (1) it was, in fact, the beneficiary under the deed of trust, (2) a properly appointed substitute trustee conducted the foreclosure proceedings, and (3) the plaintiff lacked standing to claim the foreclosure was wrongful. The financial institution argued its chain of title to the deed of trust was established by facts stated in recorded assignments of deed of trust and a recorded substitution of trustee. The trial court took judicial notice of the recorded documents. Based on these documents, the court sustained a demurrer to some of the causes of action and granted summary judgment as to the remaining causes of action. On appeal, plaintiff contends he has standing to challenge the foreclosure and, furthermore, the judicially noticed documents do not establish the financial institution actually was the beneficiary under the deed of trust. We agree.

As to standing, the holding in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova) clearly establishes plaintiff has standing to challenge the nonjudicial foreclosure on the ground that the foreclosing party lacked the authority to initiate the foreclosure because it held no beneficial interest under the deed of trust.

As to establishing facts by judicial notice, it is well recognized that courts may take notice of the existence and wording of recorded documents, but not the disputed or disputable facts stated therein. (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (Herrera).) Under this rule, we conclude the facts stated in the recorded assignments of deed of trust and the substitution of trustee were not subject to judicial notice. Therefore, the financial institution did not present evidence sufficient to establish its purported chain of title to the deed of trust. Consequently, the financial institution failed to show it was the owner of the deed of trust and had the authority to foreclose on plaintiff’s residence.

We therefore reverse the judgment and remand for further proceedings.

FACTS

The Loan and Deed of Trust

On April 19, 2005, plaintiff Fred Guliex (Borrower) purchased real property located on Judith Avenue in Arvin, California (the residence). He financed the purchase of the residence by obtaining a $156,000 loan from Long Beach Mortgage Company. The loan documents included a note and a deed of trust, both of which were dated June 21, 2005. In the deed of trust, Borrower granted Long Beach Mortgage Company, a Delaware corporation with an address in Anaheim, a security interest in the residence as collateral for the loan. The deed of trust was recorded on June 30, 2005, in the official records of Kern County.

The deed of trust named Long Beach Mortgage Company as both the beneficiary and the trustee. Paragraph 20 of the deed of trust stated the note together with the deed of trust could be sold one or more times without prior notice to Borrower and, as a result of such a sale, the loan servicer might change. Paragraph 24 of the deed of trust addressed substitute trustees by stating “Lender, as 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 [residence] is located.” Paragraph 24 also stated “the successor trustee shall succeed to the title, powers and duties conferred upon the Trustee herein and by Applicable Law.”

2008 Seizure of Washington Mutual Bank

Washington Mutual Bank is described in documents presented in this case as the successor in interest of Long Beach Mortgage Company, the original lender. The record does not show how Washington Mutual Bank became Long Beach Mortgage Company’s successor. For instance, the record does not describe (1) an assignment of assets from Long Beach Mortgage Company to Washington Mutual Bank, (2) a corporate acquisition of Long Beach Mortgage Company by Washington Mutual Bank, or (3) a merger of that resulted in Washington Mutual Bank being the surviving entity.

The report of the loan auditor retained by Borrower and included in the appellate record refers to the seizure of Washington Mutual Bank by federal regulators and a deal to sell the bulk of its operations to JPMorgan Chase. The report and the remainder of the appellate record provides few details about the seizure and the transfer of Washington Mutual Bank’s assets, but published cases describe those events. (See Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1085 (Glaski)Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 504,disapproved on another ground in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.) We note that (1) the United States Office of Thrift Supervision seized Washington Mutual Bank in September 2008; (2) the Federal Deposit Insurance Corporation (FDIC) acted as receiver; and (3) unspecific assets and liabilities were sold by the FDIC to JPMorgan Chase Bank, N.A. (Glaski, supra, at p. 1085.) As in Glaski, it is possible, though not certain, that JPMorgan Chase Bank acquired Borrower’s deed of trust when it purchased assets of Washington Mutual Bank from the FDIC. (Ibid.)

2009 Default

Borrower defaulted on his loan payments in 2009. During his deposition, Borrower testified he called Chase to ask about a loan modification even though he had been making payments to Chase regularly. Borrower said he was told that Chase would modify the loan, but he needed to be three months behind. Borrower testified, “I got three months behind, and then they started—I got stacks of paper this high. They started that modification, and it never got anyplace. That’s—that’s how I got in this situation.” It appears that Borrower did not resume making payments under the loan.

2011 Documents

On July 26, 2011, three documents relating to the deed of trust were recorded in the official records of Kern County. The documents were stamped with consecutive documents numbers, from which we infer the sequence of their recording.

The first document recorded was an assignment of deed of trust dated July 25, 2011, which stated JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, granted, assigned and transferred to JPMorgan Chase Bank, National Association all beneficial interest under the deed of trust together with the notes or notes secured by the deed of trust.

The second document was a substitution of trustee dated July 25, 2011, that stated California Reconveyance Company was substituted for the original trustee, Long Beach Mortgage Company. The substitution of trustee also stated the “undersigned” was the present beneficiary under the deed of trust. It was signed by an officer of JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company.

The third document was a notice of default and election to sell under deed of trust that stated the residence was in foreclosure because Borrower was behind on his payments and listed the past due amount as $38,616.91. The notice of default was signed and recorded by California Reconveyance Company, as trustee. A declaration of compliance with Civil Code section 2923.5, subdivision (b) was attached to the notice of default. The declaration was signed by Clement J. Durkin for JP Morgan Chase Bank, National Association and stated the borrower had been contacted to discuss his financial situation and to explore the options for avoiding foreclosure.

Over three months later, on October 27, 2011, California Reconveyance Company recorded a notice of trustee’s sale. The notice stated Borrower was in default under the deed of trust and estimated the amount of unpaid balance and other charges at $196,269.23. The notice stated a public auction of the residence would be held on November 23, 2011, in Bakersfield.

2012 Bankruptcy

The trustee’s sale scheduled for November 2011 was not held. Borrower asserts that he filed a Chapter 13 bankruptcy in 2012 after months of unsuccessful attempts to modify the loan. Exactly when Borrower’s bankruptcy proceeding was concluded is not disclosed in the appellate record.

2013 Documents

On August 26, 2013, California Reconveyance Company recorded a second notice of trustee’s sale. The notice stated Borrower was in default under the deed of trust and estimated the amount of unpaid balance and other charges at $218,300.83. The notice stated a public auction of the residence would be held on September 18, 2013, in Bakersfield.

A “California Assignment of Deed of Trust” dated September 14, 2013, was recorded in Kern County on November 15, 2013. It stated JPMorgan Chase Bank, National Association, granted, sold, assigned, transferred and conveyed unto PennyMac Mortgage Investment Trust Holdings I, LLC, all beneficial interest under the deed of trust.

On November 20, 2013, the residence was sold by California Reconveyance Company at a trustee’s sale. On November 22, 2013, the Kern County Assessor-Recorder recorded a trustee’s deed upon sale stating California Reconveyance Company as trustee of the deed of trust granted and conveyed all right, title and interest in the property to PennyMac Holdings, LLC (PennyMac). The trustee’s deed upon sale stated (1) a default occurred, a notice of default and election to sell was recorded, and the default still existed at the time of the trustee’s sale; (2) the trustee, in exercise of its powers under the Deed of Trust, sold the property at public auction on November 20, 2013; and (3) the grantee, PennyMac, being the highest bidder at the sale, “became the purchaser of said property for the amount bid being $126,000.00 in lawful money of the United States, or by credit bid if the Grantee was the beneficiary of said Deed of Trust at the time of said Trustee’s Sale.”

Borrower testified that before the trustee’s sale, he had received a paper from Chase stating bidding at the sale would start at $60,000. In Borrower’s opinion, the property was worth approximately $80,000 in November 2013.

The day after the trustee’s sale, a “Corporate Assignment of Deed of Trust” was signed by a vice president of JPMorgan Chase Bank, National Association. The assignment was dated November 21, 2013, and stated JPMorgan Chase Bank, National Association, granted, sold, assigned, transferred and set over the deed of trust without recourse, representation or warranty, together with all right, title and interest secured by the deed of trust, to PennyMac. The corporate assignment was recorded on November 22, 2013, immediately before the trustee’s deed upon sale was recorded.

PROCEEDINGS

In December 2013, Borrower filed this lawsuit against PennyMac, PennyMac Loan Services, and California Reconveyance Company. In August 2014, Borrower filed a first amended complaint, which is the operative pleading in this appeal and contains headings for five causes of action. All five causes of action are based on or related to Borrower’s basic position that the November 2013 foreclosure sale was illegal.

Borrower alleged Long Beach Mortgage Company never sold, transferred or granted the deed of trust and note to PennyMac and, thus, PennyMac “is merely a third-party stranger to the loan transaction.” Borrower also alleged that PennyMac actually has no secured or unsecured right, title or interest in the note and deed of trust and has no right to collect mortgage payments or demand mortgage payments. Borrower specifically disputed the validity of the assignment recorded in July 2011 and the two assignments recorded in November of 2013. In Borrower’s view, PennyMac must establish a complete and unbroken chain of title from the origination of the loan to the transaction that established PennyMac’s purported ownership of the deed of trust. Borrower also alleged illegal “robodocs” were used in connection with the foreclosure and the loan and deed of trust had been fully satisfied prior to the foreclosure sale.

In September 2014, PennyMac filed a demurrer to the amended complaint. PennyMac argued that Borrower lacked standing to challenge its authority to foreclose and failed to allege facts showing prejudice or the ability and willingness to tender payment of the debt.

The trial court sustained the demurrer as to three of the five causes of action alleged in the amended complaint. The trial court concluded Borrower lacked standing to challenge the foreclosure and PennyMac’s chain of title was perfected.

In August 2015, PennyMac filed a motion for summary judgment, contending that Borrower could not establish one or more of the elements of his fourth and fifth causes of action. The trial court agreed and granted the motion. As a result of the summary judgment and the order sustaining the demurrer, the entire case was resolved without a trial.

DISCUSSION

I. DEMURRERS

A. Standard of Review

1. Stating a Cause of Action under Any Legal Theory

Appellate courts independently review an order sustaining a general demurrer and make a de novo determination of whether the pleading alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc.(2001) 25 Cal.4th 412, 415.) The demurrer is treated as admitting all material facts properly pleaded, but does not admit the truth of contentions, deductions or conclusions of law. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)

2. Rule Prohibiting “Speaking” Demurrers

A corollary of the rule that a demurrer admits all material facts properly pleaded is the principle that a defendant may not offer evidence of additional facts to support a demurrer. Our Supreme Court has stated “facts have no place in a demurrer.” (Bainbridge v. Stoner (1940) 16 Cal.2d 423, 431.) Demurrers supported by evidence are referred to as “speaking” demurrers and usually are improper. (See Mohlmann v. City of Burbank (1986) 179 Cal.App.3d 1037, 1041, fn. 2; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 948, p. 364 [“the `speaking demurrer’ (one that contains factual matters) is not recognized in this state”].)

3. Judicial Notice and Its Limitations

The general rule against speaking demurrers is subject to an explicit statutory exception. The grounds for a demurrer may be based on the face of the complaint or “any matter of which the court is required to or may take judicial notice.” (Code Civ. Proc., § 430.30, subd. (a); see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Thus, a court considering a demurrer may take judicial notice of the existence, content and authenticity of public records and other specified documents. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1262.) However, courts do not take judicial notice of the truth of the factual matters asserted in those documents. (Ibid.)

The application of these principles defining the scope of judicial notice is important to the outcome of this appeal. Their application is illustrated by a case where the trial court took judicial notice of various recorded documents—specifically, a deed of trust, two assignments of the deed of trust, two substitutions of trustee, and a notice of default and election to sell under the deed of trust. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1116.) The appellate court stated:

“[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution [of Trustee] recites that Shanley `is the present holder of beneficial interest under said Deed of Trust.’ By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot be considered not reasonably subject to dispute.” (Id. at p. 1117.)

Similarly, in Herrera, supra, 196 Cal.App.4th 1366, the court concluded a substitution of trustee stating the bank in question was the present beneficiary under the deed of trust did not establish the bank was the beneficiary because the statement was hearsay and the fact was disputed. (Id. at p. 1375.) The court also stated:

“Nor does taking judicial notice of the assignment of deed of trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that JPMorgan Chase Bank, `successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST TO LONG BEACH MORTGAGE COMPANY’ assigns all beneficial interest under the 2003 deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The truthfulness of the contents of the assignment of deed of trust remains subject to dispute [citation], and plaintiffs dispute the truthfulness of the contents of all of the recorded documents.” (Ibid.; see Yvanova, supra, 62 Cal.4th at p. 924, fn. 1)

To complete our overview of judicial notice, we recognize the rule that courts do not judicially notice the truth of factual matters asserted in documents is subject to a narrow exception. Evidence Code section 622 provides: “The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.” (See Satten v. Webb (2002) 99 Cal.App.4th 365, 375 [recitals in exhibits attached to complaint].) Of course, a party must establish that it actually is a successor in interest before the conclusive presumption applies.

B. PennyMac’s Demurrer and Borrower’s Standing

1. The Demurrer and the Trial Court’s Ruling

PennyMac’s demurrer argued Borrower lacked standing to challenge PennyMac’s authority to foreclose. The section of PennyMac’s brief arguing Borrower lacked standing to challenge the foreclosure relied on cases where the foreclosure process was underway, but no trustee’s sale had been completed. (See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149.) Extrapolating from the preforeclosure cases, PennyMac argued Borrower could not challenge the completed foreclosure and, thus, the entire action was subject to demurrer without leave to amend.

The trial court was convinced by PennyMac’s arguments about standing. The minute order stated Borrower lacked standing to challenge the nonjudicial foreclosure process, the securitization process, and the assignment of the promissory note because (1) Borrower did not dispute the underlying debt and (2) he failed to allege tender or the ability to tender. As to Borrower’s curing these defects by amendment, the court stated Borrower “does not seem to be able to do so, since the chain of title of PennyMac is perfected.” (Capitalization omitted.)

2. Borrower’s Standing Argument

Borrower’s opening brief contains a heading asserting the trial court erred in granting summary judgment to PennyMac because he had standing to challenge the assignments of the deed of trust. PennyMac’s appellate brief suggests this court should treat Borrower as having waived challenges to the demurrer because those specific challenges were not adequately raised and briefed.

We reject PennyMac’s suggestion and conclude Borrower has raised the question of his standing to challenge PennyMac’s right to foreclose. Borrower, who was representing himself in this proceeding during briefing, might have used the term “summary judgment” in the heading of his brief in a nontechnical way to mean the judgment entered without a trial (i.e., summarily) rather than with the intention of restricting his argument solely to the order granting the motion for summary judgment. This interpretation is consistent with Borrower’s statement that his “appeal is from the final judgment.” It also is consistent with the first paragraph on page 12 of Borrower’s opening brief, where he (1) asserted the trial court erred in sustaining the demurrer as to three causes of action on the ground he lacked standing and (2) specifically (and correctly) argued the court could not know the chain of title of PennyMac was perfected. Therefore, reading Borrower’s appellate briefs as a whole, we conclude he adequately raised the standing issue for purposes of challenging both the demurrer and the summary judgment.

3. The Law of Borrower Standing

PennyMac’s demurrer and the trial court’s ruling on that demurrer were made before the California Supreme Court addressed “[u]nder what circumstances, if any, may the borrower challenge a nonjudicial foreclosure on the ground that the foreclosing party is not a valid assignee of the original lender.” (Yvanova, supra, 62 Cal.4th at p. 928.) Our high court decided that question as follows:

“We conclude a home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legitimate authority to order a trustee’s sale.” (Id. at pp. 942-943.)

The court in Yvanova also considered whether a borrower must show prejudice when it addressed the defendants’ argument that an allegedly invalid assignment leading to a foreclosure by an unauthorized party causes no harm or prejudice to a borrower in default of a loan because the actual holder of the beneficial interest under the deed of trust could have foreclosed on the property. (Yvanova, supra, 62 Cal.4th at p. 937.) The court stated:

“As it relates to standing, we disagree with defendants’ analysis of prejudice from an illegal foreclosure. A foreclosed-upon borrower clearly meets the general standard for standing to sue by showing an invasion of his or her legally protected interests [citation]—the borrower has lost ownership to the home in an allegedly illegal trustee’s sale.” (Ibid.)

The court also rejected the view that tender of the amount of the secured indebtedness, or an excuse of tender, was needed to establish the borrower’s standing. (Yvanova, supra, 62 Cal.4th at p. 929, fn. 4.)

4. Application of Standing Principles to This Case

The trial court concluded Borrower lacked standing to challenge the nonjudicial foreclosure and the assignment of the note and deed of trust to PennyMac. The court’s minute order supported this conclusion by stating Borrower did not dispute the underlying debt and failed to allege tender or the ability to tender. In Yvanova,our Supreme Court unanimously rejected the argument that borrower standing required a showing of prejudice and a tender of the balance due on the loan. (Yvanova, supra, 62 Cal.4th at pp. 929, fn. 4, 937.) Based on Yvanova, the order sustaining the demurrer to the first three causes of action in Borrower’s amended complaint cannot be upheld due to an absence of standing. Under Yvanova,Borrower has standing to challenge a foreclosure by an unauthorized entity.

C. Another Ground for the Demurrer—PennyMac’s Chain of Title

1. Contentions and Trial Court’s Ruling

PennyMac’s demurrer argued Borrower’s amended complaint offered baseless theories that attempted “to challenge PennyMac’s authority to foreclose, while at the same time ignoring the valid chain of title leading up to the Trustee’s Sale.” Under PennyMac’s view of the record, “there is a full chain of assignments of the Deed of Trust, ending with the assignment to the foreclosing beneficiary PennyMac.”

Borrower opposed the demurrer by arguing that there were huge gaps in the chain of title and PennyMac was a third party stranger to the secured debt. Borrower relied on the rule that taking judicial notice of a document does not establish the facts asserted in the document and argued the recorded assignments of deed of trust did not establish PennyMac was, in fact, the owner or holder of a beneficial interest in the deed of trust. Borrower also cited Herrera to support his argument about the limits placed on judicial notice.

The trial court reached the chain-of-title theory as an alternative ground for sustaining the demurrer as to three causes of action. The court stated Borrower failed to allege sufficient facts to constitute a violation of law, and seemed unable to do so, because the chain of title of PennyMac was perfected. We disagree. As explained below, the facts alleged in the amended complaint and the facts judicially noticeable do not establish an unbroken or perfect chain of title from Borrower to PennyMac.

2. The Links in PennyMac’s Purported Chain of Title

“Links” in a chain of title are created by a transfer of an interest in the underlying property from one person or entity to another. An examination of each link in the purported chain of title relied upon by PennyMac reveals that certain links were not established for purposes of the demurrer. Our analysis begins with a description of each link in the purported chain (and each related document, where known), beginning with the husband and wife who sold the residence to Borrower and ending with the trustee’s sale to PennyMac.

Link One-Sale: Clarence and Betty Dake sold the residence to Borrower pursuant to a grant deed dated April 19, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Two-Loan: Borrower granted a beneficial interest in the residence to Long Beach Mortgage Company pursuant to a deed of trust dated June 21, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Three-Purported Transfer: Long Beach Mortgage Company purportedly transferred its rights to Washington Mutual Bank by means of a document or transaction not identified in the appellate record. Also, the appellate record does not identify when the purported transaction occurred. Borrower disputes the existence of this and subsequent transfers of the deed of trust.

Link Four-Purported Transfer: Washington Mutual Bank purportedly transferred its rights to JPMorgan Chase Bank, National Association in an unidentified transaction at an unstated time.

Link Five-Assignment: JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, purportedly transferred the note and all beneficial interest under the deed of trust to “JPMorgan Chase Bank, National Association” pursuant to an assignment of deed of trust dated July 25, 2011, and recorded on July 26, 2011.

Link Six(A)-Assignment: JPMorgan Chase Bank, National Association transferred all beneficial interest in the deed of trust to PennyMac Mortgage Investment Trust Holdings I, LLC pursuant to a “California Assignment of Deed of Trust” dated September 14, 2013, and recorded on November 15, 2013.

Link Seven-Trustee’s Sale: California Reconveyance Company, as trustee under the deed of trust, (1) sold the residence to PennyMac at a public auction conducted on November 20, 2013, and (2) issued a trustee’s deed of sale dated November 21, 2013 and recorded on November 22, 2013. PennyMac, the grantee under the deed upon sale, was described in the deed as the foreclosing beneficiary.

Link Six(B)-Purported Assignment: The day after the trustee’s sale, JPMorgan Chase Bank, National Association executed a “Corporate Assignment of Deed of Trust” dated November 21, 2013, purporting to transfer the deed of trust without recourse to PennyMac Holdings, LLC. The assignment was recorded November 22, 2013. This assignment was signed (1) after JPMorgan Chase Bank, National Association had signed and recorded the “California Assignment of Deed of Trust” described earlier as Link Six(A) and (2) after the trustee’s sale was conducted on November 20, 2013. Consequently, it is unclear whether any interests were transferred by this “corporate” assignment.

3. Links Three and Four Are Missing from the Chain

The purported chain of title relied upon by PennyMac presents the following questions: First, has it been established that Long Beach Mortgage Company transferred the deed of trust to Washington Mutual Bank? Second, has it been established that Washington Mutual Bank transferred the deed of trust to JPMorgan Chase Bank, National Association? The answer to these questions is “no.” The record before this court is insufficient to establish either of the transfers actually occurred.

This conclusion is compelled by the rules of law governing judicial notice, which were discussed in part I.A.3, ante. The analysis adopted in Herrera is particularly apt because that case also involved a loan made by Long Beach Mortgage Company that the foreclosing entity asserted was owned subsequently by Washington Mutual Bank and its successor in interest, JPMorgan Chase Bank. In Herrera, the bank foreclosing under a 2003 deed of trust relied on the recitations in a recorded assignment stating the assignor, JPMorgan Chase Bank, was the successor in interest to Washington Mutual Bank, which was the successor in interest to Long Beach Mortgage Company. (Herrera, supra, 196 Cal.App.4th at p. 1375.) The appellate court concluded that judicial notice of the recorded assignment from JPMorgan Chase Bank to the foreclosing bank did not establish that the foreclosing bank was the beneficiary under the 2003 deed of trust. (Ibid.)

The Herrera decision was over three years old when PennyMac filed its demurrer. Despite the fact that Borrower’s opposition papers cited the decision, neither PennyMac nor the trial court referred to the case, much less explained why it was not controlling authority. We conclude Herrera correctly applied an established rule of law against taking judicial notice of facts asserted in a recorded document subject to judicial notice. Furthermore, that rule was confirmed in Yvanova when the California Supreme Court determined the trial court properly took judicial notice of the recorded deed of trust, assignment of the deed of trust, substitution of trustee, notices of default and of trustee’s sale, and the trustee’s deed upon sale and then stated: “We therefore take notice of their existence and contents, though not of disputed or disputable facts stated therein.” (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1, italics added.)

Based on Herrera and Yvanova, we conclude the recorded documents do not establish that JPMorgan Chase Bank, National Association was the owner of the beneficial interest in the deed of trust. It follows that the recorded documents do not establish that PennyMac became the owner of any beneficial interest under the deed of trust. These are the same conclusions this court reached in another case involving an assignment by JPMorgan Chase Bank. (Glaski, supra, 218 Cal.App.4th at p. 1102.) Restated in terms of the links described in part I.C.2, ante,PennyMac failed to establish the third and fourth links in the chain of title upon which it relied.

4. Problems with Link Six(A)

An additional break in the chain of title preceding the trustee’s sale is revealed by the September 2013 “California Assignment of Deed of Trust” that identified “PennyMac Mortgage Investment Trust Holdings I, LLC” as the assignee of all beneficial interest in the deed of trust. In comparison, the name of the entity that purchased the residence at the trustee’s sale by credit bidding $126,000 was given as “PennyMac Holdings, LLC.”

How do we know that the entity identified as “PennyMac Mortgage Investment Trust Holdings I, LLC” in the assignment of deed of trust is the same entity subsequently identified as “PennyMac Holdings, LLC” in the trustee’s deed? That information was provided to the trial court in the second footnote of the memorandum of points and authorities submitted by PennyMac in support of its demurrer. The footnote stated in full: “PennyMac Mortgage Investment Trust Holdings I, LLC changed its name to PennyMac Holdings, LLC.” It is well established under California law that speaking demurrers are improper. Accordingly, in sustaining the demurrer, the trial court should not have relied on the footnote’s assertion of fact to establish a link in the chain of title relied upon by PennyMac.

For purposes of the demurrer, the second attempted assignment by JPMorgan Chase Bank, National Association, which was dated November 21, 2013, and named “PennyMac Holdings, LLC” as the assignee should have been regarded as ineffective, transferring nothing. A similar conclusion was reached by the Fourth District in Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552 (Sciarratta), when it considered two assignments to different assignees executed by JPMorgan Chase Bank, as successor in interest to Washington Mutual Bank. (Id. at pp. 557, 562.) The court concluded the borrower adequately alleged a second attempted assignment, which occurred in November 2009, was void because “when Chase purported to assign Sciarratta’s promissory note and deed of trust to Bank of America, Chase had nothing to assign, having previously (in Apr. 2009) assigned the promissory notes and deed of trust to Deutsche Bank.” (Id. at p. 563.) As a result, the court concluded the foreclosure by Bank of America, the second assignee, was wrongful because Bank of America could not have acquired any interest in the deed of trust pursuant to the second attempted assignment. (Id. at p. 565.) Similarly, the November 21, 2013, assignment to “PennyMac Holdings, LLC” must be regarded as void and ineffective for purposes of the demurrer.

5. Summary

The purported chain of title relied upon by PennyMac is missing more than one link. Thus, the trial court erred in concluding the chain of title was perfected. It follows that the order sustaining the demurrer cannot be upheld on the ground that the chain of title presented by PennyMac precludes Borrower from establishing elements of the first three causes of action stated in his amended complaint.

D. Tender and Prejudice

1. Issue Not Resolved in Yvanova

Earlier we addressed whether Borrower’s failure to tender the full amount owed on the debt secured by the deed of trust precluded him from having standing in this lawsuit. Based on the holding in Yvanova, we concluded the failure to tender did not deprive Borrower of standing. However, our Supreme Court explicitly identified the scope of its decision:

“Our review being limited to the standing question, we express no opinion as to whether plaintiff Yvanova must allege tender to state a cause of action for wrongful foreclosure under the circumstances of this case. . . . As to prejudice, we do not address it as an element of wrongful foreclosure. We do, however, discuss whether plaintiff has suffered a cognizable injury for standing purposes.” (Yvanova, supra,62 Cal.4th at p. 929, fn. 4.)

Accordingly, we now address the elements of a wrongful (i.e., unauthorized) foreclosure cause of action that were not reached by our Supreme Court.

2. Types of Wrongful Foreclosure

As a general proposition, “[a] beneficiary or trustee under a deed of trust who conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to the borrower for wrongful foreclosure.” (Yvanova, supra, 62 Cal.4th at p. 929.) Our Supreme Court stated “[a] foreclosure initiated by one with no authority to do so is wrongful for purposes of such an action.” (Ibid.)

Initially, we consider the label “wrongful foreclosure” for a cause of action that alleges a foreclosure was illegal in some way or other and whether that label facilitates an understanding the underlying legal theory or, alternatively, is so general that it might lead to confusion. There are many ways in which the foreclosure process might violate applicable statutes, the common law, or the loan documents. (See Glaski, supra, 218 Cal.App.4th at p. 1100, fn. 17 [claims a foreclosure is “wrongful” can be tort-based, statute-based and contract-based].) From another perspective, the legal theories presented under the label “wrongful foreclosure” can be divided into two basic categories of illegality.

The first category of illegality involves procedural irregularities in a foreclosure sale conducted by the rightful trustee at the directions of the rightful beneficiary. In other words, foreclosures in this category are wrongful because of the procedural irregularities or defects in the foreclosure process. (See Knapp v. Doherty (2004) 123 Cal.App.4th 76, 81, 92-94 [procedural irregularity alleged was the premature service of the notice of trustee’s sale] (Knapp).) We adopt the term “irregular foreclosure” to describe this particular category of wrongful foreclosure.

In contrast, the second category of illegality involves a “foreclosure initiated by one with no authority to do so.” (Yvanova, supra, 62 Cal.4th at p. 929.) In other words, foreclosures in this category are wrongful because they are initiated or conducted by the wrong party. When the foreclosing entity had no legal authority to pursue a trustee’s sale, “such an unauthorized sale constitutes a wrongful foreclosure.” (Yvanova, supra, at p. 935.) Stated another way, under California law, “only the original beneficiary, its assignee or an agent of one of these has the authority to instruct the trustee to initiate and complete a nonjudicial foreclosure sale.” (Yvanova, supra, 62 Cal.4th at p. 929; see Civ. Code, § 2924, subd. (a)(6).) Consequently, when a foreclosing party claims the authority to initiate and complete a nonjudicial foreclosure sale as an assignee, the borrower may challenge that party’s status as a true assignee by alleging an assignment or other transfer in the purported chain never occurred—that is, does not exist. (Yvanova, supra, 62 Cal.4th at p. 939Sciarratta, supra, 247 Cal.App.4th at pp. 563-564Barrionuevo v. Chase Bank, N.A. (N.D.Cal. 2012) 885 F.Supp.2d 964, 973.) One way, but not the only way, to allege an assignment never occurred is to allege grounds that would render a documented assignment void—that is, a nullity. (Yvanova, supra, 62 Cal.4th at p. 939.)

Based on the many uses of the term “unauthorized” in Yvanova, we adopt the term “unauthorized foreclosure” to describe this second type of wrongful foreclosure. Accordingly, the remainder of this opinion uses the terms “irregular foreclosure” and “unauthorized foreclosure” to identify the two types of legal theories that fall under the broader term “wrongful foreclosure.” Our goal in using these labels is to aid in distinguishing the two legal theories and their constituent elements.

3. Tender as an Element of the Unauthorized Foreclosure Claim

We conclude that tender is not an element that must be pleaded and proven to establish an unauthorized foreclosure cause of action. We reached the same conclusion in Glaski, supra, 218 Cal.App.4th at page 1100 and were joined in that conclusion by Division One of the Fourth District in Sciarratta, supra, 247 Cal.App.4th at page 568.

In contrast, we recognize that tender is an element of a cause of action alleging an irregular foreclosure. (McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, 394 [complaint failed to state an irregular foreclosure cause of action because it did not allege a proper tender to cure the default].) A borrower attacking a nonjudicial foreclosure sale on the ground of procedural irregularity must overcome a rebuttable presumption that the sale was conducted regularly and fairly by pleading and proving an improper procedure and the resulting prejudice. (Knapp, supra, 123 Cal.App.4th at p. 86, fn. 4.) Allegations of tender, an ability to tender, or an excuse for not tendering are connected to showing that the procedural irregularity was prejudicial or harmful to the borrower. The theory of prejudice or harm is that if proper procedures had been followed, the default in the loan would have been cured by the homeowner and the foreclosure would not have been completed.

Requiring a borrower to tender payment to a party that holds no rights or interests in the loan or deed of trust makes little sense. Consequently, we do not extend the tender requirement that is an element of an irregular foreclosure cause of action to the cause of action for unauthorized foreclosure. As a result, the order sustaining the demurrer cannot be upheld on the ground that Borrower was required to plead tender, or an excuse justifying the failure to tender.

4. Prejudice as an Element to the Unauthorized Foreclosure Claim

PennyMac also contends that Borrower failed to allege any prejudice resulting from the allegedly defective foreclosure. Based on this contention, we consider whether prejudice is an essential element of a cause of action for unauthorized foreclosure.

The elements of an irregular foreclosure cause of action are (1) procedural irregularities in the foreclosure process that caused the sale of real property pursuant to the power of sale in the deed of trust to be illegal, fraudulent or willfully oppressive; (2) prejudice or harm to the party attacking the foreclosure sale; and (3) in cases where the borrower challenges the sale, the borrower tendered the amount of the secured indebtedness or was excused from tendering. (Sciarratta, supra, 247 Cal.App.4th at pp. 561-562; see Knapp, supra, 123 Cal.App.4th at p. 86, fn. 4.)

For example, in Knapp, the borrowers claimed the notice of trustee’s sale was defective because it was mailed prematurely. (Knapp, supra, 123 Cal.App.4th at p. 91.) Specifically, it was mailed less than three months after the recordation of the notice of default, which is contrary to the three-month waiting period required by Civil Code section 2924, subdivision (a)(2). The court concluded the slightly premature service of the notice was a minor procedural irregularity that “was in no way prejudicial to Borrowers.” (Knapp, at p. 81.) As a result, the court concluded the irregular service of the notice of trustee’s sale did not invalidate the foreclosure sale and affirmed the summary judgment granted by the trial court. (Id. at pp. 94, 102.)

We conclude that elements of a cause of action alleging an irregular foreclosure are different from the elements of a cause of action alleging an unauthorizedforeclosure. “`[W]here a plaintiff alleges that the entity lacked authority to foreclose on the property, the foreclosure sale would be void.'” (Glaski, supra, 218 Cal.App.4th at p. 1101.) When the foreclosure sale is void for lack of authority, we conclude the borrower need not plead prejudice as a separate element of the cause of action. First, prejudice seems obvious. (See Sciarratta, supra, 247 Cal.App.4th at p. 565 [“homeowner experiences prejudice or harm when an entity with no interest in the debt forecloses”].) The true beneficiary has not started the foreclosure process and, as a result, the borrower’s rights in the property would continue until the true beneficiary decides to foreclose and completes that process. Thus, the timing of the completed, unauthorized foreclosure necessarily has occurred before any authorized foreclosure that might occur. The later date of a potentially authorized sale necessarily means the earlier, unauthorized sale worked to the detriment of the borrower. In other words, the borrower is prejudiced by the fact the borrower lost rights in the property sooner than would have occurred otherwise.

Second, leaving the timing aspect aside, PennyMac has identified no public policy or other rationale that justifies restricting the borrower’s ability to set aside a voidforeclosure sale. (See Sciarratta, supra, 247 Cal.App.4th at p. 565 [strong policy reasons favor conclusion that unauthorized foreclosure is harmful].) In Glaski, we concluded the remedy of setting aside the foreclosure sale was available to a borrower who establishes that the foreclosure sale is void because the entity lacked the authority to foreclose. (Glaski, supra, 218 Cal.App.4th at pp. 1100-1101.) The uncertainty over whether the true beneficiary under the deed of trust, once identified, will foreclose or, alternatively, will negotiate a loan modification, need not be addressed in a complaint when the borrower is pursuing a claim that will render the foreclosure sale void. Void means void—a void thing is as no thing, a nullity. (Yvanova, supra, 62 Cal.4th at p. 929.) Thus, the uncertainty of the true beneficiary’s reaction to the default does not render the unauthorized foreclosure sale any less void.

In sum, we conclude prejudice is not an element of a cause of action alleging an unauthorized foreclosure.

E. Plaintiff’s Causes of Action

The first cause of action in the amended complaint is labeled “quiet title.” The legal theory underlying this cause of action is an unauthorized foreclosure and the relief sought is setting aside the November 2013 trustee’s sale. Based on our earlier discussion of the unauthorized foreclosure cause of action and the remedy of setting aside the trustee’s sale, we conclude Borrower’s first cause of action has alleged sufficient facts to state a claim for relief.

The second cause of action asserts violations of Business and Professions Code section 17200 and alleges PennyMac engaged in unfair business practices, including executing and recording documents without the legal authority to do so and acting as the beneficiary under the deed of trust without the legal authority to do so. Borrower has alleged a claim for unauthorized foreclosure. It follows that he also has stated a claim for unfair business practices under Business and Professions Code section 17200. (Glaski, supra, 218 Cal.App.4th at p. 1101Susilo v. Wells Fargo Bank, N.A. (C.D.Cal. 2011) 796 F.Supp.2d 1177, 1196.)

The third cause of action is labeled “quasi contract” and alleges an unjust enrichment would occur if PennyMac were allowed to retain any payments or to keep the residence because PennyMac had no legal authority to collect payments or foreclose on the residence. Borrower alleges the equitable remedy of restitution is appropriate to restore him to his former position by return of the property or its equivalent in money. We recognize that unjust enrichment is not an independent cause of action under California law, but will allow Borrower to proceed with the so-called third cause of action because it seeks a type of relief that may be different from the relief sought under the first and second causes of action.

Therefore, we conclude PennyMac’s demurrer should have been overruled as to all causes of action in the amended complaint.

F. Plaintiff’s Theory Related to a Securitized Trust[1]

In closing our discussion of the demurrer and whether Borrower has stated facts sufficient to constitute a cause of action under a recognized theory of law, we note that Borrower’s amended complaint alleged, based on information and belief, that his loan was sold to a securitized trust named the Long Beach Mortgage Loan Trust 2005-WL2. Borrower further alleged that the defendants failed to endorse the note and failed to properly assign the deed of trust in a timely manner as set forth in the pooling and servicing agreement.

Plaintiff’s allegations about an attempted transfer of his note and deed of trust to a securitized trust do not address how that attempted transfer relates to the chain of title relied upon by PennyMac or otherwise explain why PennyMac could not be the owner of the note and deed of trust. Consequently, even if the factual allegations (as distinguished from the legal conclusions) about an attempt to include Borrower’s note and deed of trust in a securitized trust are true, those allegations are insufficient to establish that PennyMac was not a valid assignee of the note and deed of trust. Furthermore, if Borrower’s allegations attempt to present the legal theory that a botched assignment to a securitized trust caused the debt and deed of trust to disappear, evaporate or otherwise cease to exist, we explicitly reject that legal theory. We are aware of no principle of law holding that an ineffective or void assignment of a debt extinguishes the debt. Instead, if a purported assignment is a nullity, the situation remains the same as though the purported assignment was never attempted and the purported assignor continues to own the debt and remains the beneficiary under the deed of trust.

In summary, Borrower’s allegations about the securitized trust are insufficient to identify a break in the chain of title relied upon by PennyMac and are insufficient to extinguish the loan. Therefore, the question of whether any attempt to assign Borrower’s note and deed of trust to a securitized trust was void or merely voidable is not properly before this court. Accordingly, we will not offer an advisory opinion on how to interpret McKinney’s Consolidated Laws of New York Annotated: Estates, Powers and Trusts Law section 7-2.4.

II. SUMMARY JUDGMENT

A. Standard of Review

A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A moving party is entitled to judgment as a matter of law when it establishes by admissible evidence that the “action has no merit.” (Code Civ. Proc., § 437c, subd. (a).)

A defendant moving for summary judgment can meet this burden by presenting evidence demonstrating that one or more elements of each cause of action cannot be established. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850, 853-854.) A motion for summary judgment or summary adjudication will be defective if the moving party fails to reference evidence establishing, either directly or by inference, each material fact the moving party claims is undisputed. (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 617 (Pierson).)

Appellate courts independently review an order granting summary judgment. (Pierson, supra, 4 Cal.App.5th at p. 617.) In performing this independent review, appellate courts apply the same three-step analysis as the trial court. (Ibid.) In this case, the second step of that analysis determines the outcome. The second step addresses whether the moving party carried its initial burden of establishing facts that show the plaintiff’s causes of action had no merit. (Ibid.) In completing this step, we (1) examine the evidence referenced as support for the facts stated in the moving party’s separate statement of undisputed facts and (2) determine whether that evidence establishes either directly or by inference, the material facts that the moving party asserts are undisputed. (Haney v. Aramark Uniform Services, Inc.(2004) 121 Cal.App.4th 623, 632; see Cal. Rules of Court, rule 3.1350(d)(3).) The evidence must be viewed in the light most favorable to the plaintiff, with any evidentiary doubts or ambiguities resolved in the plaintiff’s favor. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97.)

B. Scope of PennyMac’s Motion for Summary Judgment

PennyMac’s motion for summary judgment addressed the two causes of action that survived its demurrer. Those causes of action were the fourth and the fifth set forth in the amended complaint. In the caption of the amended complaint, Borrower labeled his fourth cause of action as a violation of the California Homeowner Bill of Rights and listed Civil Code sections 2924, subdivision (a)(6) and 2924.17. His fifth cause of action was labeled as a violation of Civil Code sections 2934, subdivision (a)(1)(A) and 2936. The fifth cause of action challenges the validity of the substitution of trustee recorded in July 2011 on a variety of grounds.

PennyMac’s notice of motion for summary judgment asserted that the fourth and fifth causes of action were without merit because Borrower was unable to prove or establish one or more elements of the cause of action. PennyMac summarizes the fourth cause of action as alleging “robodocs” were used in the foreclosure process and alleging PennyMac “failed to provide competent and relevant support to the recorded Assignments of Deed of Trust and the Substitution of Trustee.” As to the lack of support for the recorded assignment of the deed of trust, PennyMac contends (1) Borrower failed to provide evidence that any of the recorded documents related to the nonjudicial foreclosure were invalid and (2) it “provided direct evidence of the full chain of title leading up to the Trustee’s Sale.”

C. Material Facts Are Disputed

1. PennyMac’s Assertions of Undisputed Material Facts

PennyMac challenges Borrower’s fourth and fifth causes of action by asserting the same 45 undisputed material facts. PennyMac’s main factual points are that JPMorgan Chase Bank, National Association held the beneficial interest under the deed of trust, validly appointed a substitute trustee and subsequently transferred the beneficial interest to PennyMac.

JPMorgan Chase Bank, National Association’s ownership of the beneficial interest under the deed of trust is addressed by undisputed material fact No. 8 in PennyMac’s separate statement, which asserts:

“JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company assigned the interest under the Deed of Trust to JPMorgan Chase Bank, National Association (“Chase”) by an Assignment of Deed of Trust dated July 25, 2011 and recorded on July 26, 2011, in the Official Records of Kern County, California.”

The only evidence PennyMac cites to support this assertion of fact is exhibit C to its request for judicial notice, which is the assignment recorded in July 2011.

2. Borrower’s Response

Borrower’s separate statement responded to PennyMac’s undisputed material fact No. 8 by stating he did “not dispute the fact the assignment was recorded, [but did] dispute the contents of the assignment.” Borrower’s opposition to the motion stated the disputed questions of fact included (1) whether PennyMac acquired possession of the note and deed of trust through properly recorded assignments, (2) whether PennyMac could demonstrate proof of ownership of the note and deed of trust, (3) whether the deed of trust was separated from the note, (4) whether the substitution of trustee was executed by the rightful party, and (5) the authenticity of the assignments recorded prior to the foreclosure sale.

3. PennyMac Did Not Carry Its Initial Burden

We conclude PennyMac did not carry its initial burden of establishing facts that show the plaintiff’s causes of action had no merit. (See Pierson, supra, 4 Cal.App.5th at p. 617.) In particular, the July 2011 assignment of deed of trust that states JPMorgan Chase Bank, National Association was the successor in interest to Washington Mutual Bank, which was the successor in interest to the original lender, Long Beach Mortgage Company is insufficient to establish that JPMorgan Chase Bank, National Association in fact held an interest in the deed of trust as the successor of those two entities. As discussed in parts I.A.3 and I.C.3, ante,courts may take judicial notice of the existence and wording of recorded documents, “though not of disputed or disputable facts stated therein.” (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1.) In Herrera, supra, 196 Cal.App.4th 1366, the appellate court reversed an order granting the foreclosing bank’s summary judgment on the ground that the assignment from JPMorgan Chase Bank to the foreclosing bank did not establish the foreclosing bank actually was the beneficiary under the 2003 deed of trust. (Id. at p. 1375.) The applicable principles governing judicial notice require the same result in this case.

PennyMac’s failure to present sufficient evidence to establish JPMorgan Chase Bank, National Association actually held an interest in the deed of trust breaks the chain of title relied upon by PennyMac. This break calls into question the validity of all later recorded documents in the chain, including the substitution of trustee that designated California Reconveyance Company as the new trustee under the deed of trust.

Consequently, we conclude that PennyMac failed to establish facts that precluded Borrower from proving the elements of the fourth and fifth cause of action stated in the amended complaint. Based on this conclusion and our analysis of the demurrer, we conclude the judgment must be reversed.

DISPOSITION

The judgment is reversed. The trial court is directed to vacate its order sustaining the demurrer without leave to amend and to enter a new order overruling the demurrer. The trial court also is directed to vacate its order granting the motion for summary judgment and to enter a new order denying that motion. Plaintiff Guliex shall recover his costs on appeal.

HILL, P.J. and GOMES, J., concurs.

[1] The mortgage securitization process is described in Yvanova, supra, 62 Cal.4th at page 930,footnote 5. The mortgage-backed securities issued by a securitized trust are described in Glaski, supra,218 Cal.App.4th at p. 1082, footnote 1. Those descriptions need not be repeated here.

 

This post was originally published HERE – Gi;iex v PennyMac Holdings LLC

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

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Alexa, are you connected to the CIA?

“Alexa, are you connected to the CIA?” is a question buzzing around the internet.  You can view some of those asking that question to their Alexa HERE

In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice Louis Brandeis, entitled “The Right to Privacy”, is often cited as the first implicit declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the “right to be let alone”, and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography, and sensationalist journalism, also known as “yellow journalism”.

A right to privacy is explicitly stated under Article 12 of the Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Although the Constitution does not explicitly include the right to privacy, the Supreme Court has found that the Constitution implicitly grants a right to privacy against governmental intrusion from the First Amendment, Third Amendment, Fourth Amendment, and the Fifth Amendment. This right to privacy has been the justification for decisions involving a wide range of civil liberties cases, including Pierce v. Society of Sisters, which invalidated a successful 1922 Oregon initiative requiring compulsory public education, Griswold v. Connecticut, where a right to privacy was first established explicitly, Roe v. Wade, which struck down a Texas abortion law and thus restricted state powers to enforce laws against abortion, and Lawrence v. Texas, which struck down a Texas sodomy law and thus eliminated state powers to enforce laws against sodomy.

The 1890 Warren and Brandeis article “The Right To Privacy”, is often cited as the first implicit declaration of a U.S. right to privacy. This right is frequently debated. Strict constructionists argue that no such right exists (or at least that the Supreme Court has no jurisdiction to protect such a right), while some civil libertarians argue that the right invalidates many types of currently allowed civil surveillance (wiretaps, public cameras, etc.).

Most states of the United States also grant a right to privacy and recognize four torts based on that right:

Intrusion upon seclusion or solitude, or into private affairs; Public disclosure of embarrassing private facts; Publicity which places a person in a false light in the public eye; and Appropriation of name or likeness. Also, in some American jurisdictions the use of a person’s name as a keyword under Google’s AdWords for advertising or trade purposes without the person’s consent has raised certain personal privacy concerns.

On March 11, 2015, Intelligence Squared US, an organization that stages Oxford-style debates, held an event centered on the question, “Should the U.S. adopt the ‘Right to be Forgotten’ online?” The side against the motion won with a 56% majority of the voting audience.

Welcome to the new world order. smart phones, smart tvs, etc.

 

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

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I am grateful

I am grateful for all of the 45 new subscribers that joined my website by days end yesterday. More are coming in as we speak adding to the nearly 1500 that have already joined. This shows me how much this information needs to come out. I am grateful for my articles that are being shared and passed around the internet. I am also grateful for the patience that all of my thousands of readers have granted me in their anticipation for my upcoming book releases, “The Unlawful Unlawful Detainer” and “A Quantum of Justice”.
 
I thought it was challenging to sue and personally litigate against Wells Fargo Bank, one of the nations largest and corrupt corporations, however, I find it nearly as challenging to turn that experience into the “tell all” informative non-fiction books that I have been putting together.
 
Trying to rewrite the legalese into a prose that can be understood by the masses is quite difficult. This is information that all should read. It takes “The Big Short” and “The Inside Job” and brings it home to everyone. Whether you are a homeowner or a renter it exposes just how all of the Wall Street and Main Street banking institutions are effecting you directly.
 
Writing one book is hard enough. I am seeing the light at the end of the proverbial tunnel. I appreciate your patience. Subscribe for early release and member discounts.

 

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

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