Tag Archives: clouded title

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 is NOT TO BE PUBLISHED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of David Kester v Citimortgage, Inc., et al., we have another precedent setting case that the courts have decided NOT to be published and to make public.  When a case is not to be published it simply means that the courts have ruled that the case is not to be used for quoting or able to be used as case files reference for another case.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  NOT FOR PUBLICATION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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