Tag Archives: contract

Why the judge silenced my court documents

I want to be clear as to why the judge acting in my legal case silenced my court documents.  I want people to learn why the judge lied to me when he told me at the end of the case that he had copyrighted my court file.  The reasons are simple yet may not be very clear.   It is the same reasons that to this day there is still only a minute amount of my legal case documentation available for public record.  It is the same reasons that the court had conveniently “lost” the files from the court reporter that I had hired to transcribe the case.

To make this point we will go back a little bit to when I filed a lawsuit against Wells Fargo Bank for fraud, in early 2011.  In order to accomplish this task, since I didn’t have money for an attorney I had initially hired a paralegal to assist me in developing the paperwork so that I could file a cause of action and move forward in CA Superior Court.  After only a few moving papers filed the defendants filed a motion to move the case to Federal Court.  This is called Remanding the Case.  It was a strategy on their part.  Since I was acting as my own attorney and was thus far proving to be successful at filing paperwork to the court, counsel for the defense decided to send it up the chain to the federal level.  In the federal court system there are a different set of rules of court and rules of procedure to follow that the defense might be able to get me to stumble upon.

It was after they successfully remanded the case to the Federal Court of Northern California that my paralegal informed me that the case was now out of their league.  They were not familiar with the Federal rules and procedures and therefore felt it would be best for them to not assist me.  The paralegal was sorry for never dealing at the federal level and not knowing the information, but didn’t want to make a mistake on their end that would end my case or cause harm to me from their actions.

I can understand this and we parted amicably, but now I needed to learn everything I could about the rules of court and rules of procedure at the federal level.  This strategy on the defenses part was good because it made me not only have to learn the rules of the game, but at the same time, respond to the moving papers that they began filing.  I found myself in the law library and online nearly every waking hour of the day just trying to keep up.  So, I spent the next year and a half arguing about the fact that they never served or never appropriately by law served me documents when they would file a motion or moving paper.  they tried to get it to where I would not respond timely or show to a hearing because I would not have known the date or time.  We never even got to argue or litigate any substantive issues.

You see, over 90 percent of any and all court cases are won and loss due to simple procedural errors done by one of the parties.  These procedural errors are part of the rules of court or the procedures of the court as outlined by each state.  If a law firm doesn’t follow the rules as to how one is supposed to file a document, or how to fill out specific documents, or to show up to court on time, or to file specific documents on time, or to serve opposing parties, and a myriad of other rules that must be followed, the firm can lose the lawsuit by dismissal or demurrer based on not following the rules or law or procedure.   The law firm would then probably not tell their client the real reason that they lost and will probably inform the client of some other convoluted reason as to their loss, but it certainly wouldn’t be because of a procedural issue that the firm failed to do.  So, this means that if you simply learn and do the paperwork correctly, if you learn and do all of the filing correctly and make sure of all of the timing issues and get them done correctly, you will have an over 90% chance of winning.

So, I concentrated on this point alone and played that card as I learned the rules of the game.  So, if there were procedural issues from the opposing counsel that I could argue against (and there always was) I would.  This way I would not have to go down the road of arguing any legal points that they would bring up.  The law office for Wells Fargo Bank- Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP; and the law firm for the NDEX West, LLC acting as the Trustee- Barrett, Daffin, Frappier, Treder & Weiss, LLP wanted to get me into arguing the legal issues.  This was their arena.  This is what they know.  This is how they win by staying with what they know.

So, I am not a lawyer.  I do not have a subscription to Lexus-Nexus that I could easily shepardize legal precedents, appeals decisions and more at the flick of a keystroke.  My legal research was done in the UC Berkeley Law library, Hastings Law Library, or the San Francisco Law Library pouring over hundreds of volumes of legal tomes and familiarizing myself with legal cases for hours and days on end in order to try to wrap my mind around each case that the opposing counsel would throw out in their documents.  The referenced cases numbered in the hundreds and there was no way I would be able to stay with them and follow and argue appropriately if I stayed in their arena.

So, I would argue that the procedures to the paperwork were done incorrectly by them.  They did not file documents correctly, they did not serve the documents correctly, or they did not serve the documents at all.  This was where I could make a case, however, the court did not want to rule against or dismiss the case for the bank under procedural issues which would land someone with a home that is free and clear or can no longer be foreclosed upon.  The court wanted to stay away from this, so the court would never end the litigation.  It was frustrating to see how the courts would not follow the rules of their own court siding with the banks continually allowing them multiple “bits of the apple”.  However, during this time I was able to learn more and more about law, rules and how to litigate.  I was simply buying time.

I researched, memorized and learned more and more.  I reviewed my case notes from every angle and idea that would arise.  This time spent staying in the legal arena was tiring and frustrating to do and not really get into any substantive legal issues pertaining to my case, but it allowed me to find ways to learn.

So, over time I submitted Amended Claims and whittled away at honing my arguments.  I learned and found ways to file amended causes of action against Wells Fargo Bank for fraud.  This alone was difficult, as fraud is one of the most difficult causes of action to argue.  The nights were sleepless and the days were filled with research.  It was wearing me down.

I began to get much more focused in my argument against Wells Fargo when I was tasked by my study friend to find a Deed of Trust that actually abides by all facets of the existing rule of law.  Because I was unable to find a true Deed of Trust in how it was worded or signed, in order to substantiate my case to the court for what a true Deed of Trust document looks like as it based on the rule of law, I found myself in front of the computer system at the Alamed County Recorder’s Office for days on end, reviewing thousands and thousands of documents.  Eventually I found one that fit the parameters of what I was looking for that took me back to a contract dated 1997.

That was when I sat down an wondered why I had to go all of the way back to 1997 to find a Deed of Trust Agreement that fits the parameters as set out by the rule of law.  What took place that created this timeline of contracts where none of them actually comply with real estate contract law?  How can this be?

None of these contracts complied with contract law because they weren’t signed by the lending party, or if there was a Substituted Trustee the documents used to make this substitution we never signed by the borrower.  However, in 1997, I found a handful of contracts which both parties signed and any changes or substitutions were signed by all parties, and I found Re-Conveyance documents that were also filled out appropriately to the rule of law.

This action is simple and dates back to the Statute of Frauds (1677).  This is still valid law and on the books throughout the United States.  What this law states is that in any real estate contract it must be done in writing.  It also must be signed by all parties to the agreement.  This law also goes into the fact that if there are any changes to the contract agreement, any and all of the changes must be signed by all parties of the agreement.  This is the only way to make sure that the contract has a meeting of the minds throughout the duration of the agreement.

So, why was there such a lengthy timeframe where these contracts were not signed by both parties, or if there was a substitution of a trustee that this document was never signed by the borrower?  What was it in 1998 that happened that changed how these contracts seemed to be being used?

I looked deeper into changes in the laws regarding borrowing, lending and the power of sale in the state of CA.  I scoured through scores and scores of pages of legalese that made my head spin trying to find any change that I might put to reference that would explain why this might be the case.  I read and re read civil code 2924, et al, that dealt with foreclosure in California.  This is the code which dictates the power of sale clause in a deed of trust agreement in the state of CA.

I wanted more information, but I still needed to focus on the lawsuit.  I now knew that I had a true Deed of Trust Agreement as it is outlined in the rule of law.  I also knew that I had a true Substitute Trustee document as it is to be written according to the rule of law.  I also knew that I had found a true Re-Conveyance document as it is to be written according to the rule of law.  I could now used these documents in the courtroom as evidence to compare my documents with these others that exemplify by the rule of law as to what these documents are supposed to look like.

I noticed at that time that the CA Civil Code 2934a stated that a bank was able to name a new trustee.  It stated that the new substituted trustee would take on and possess all of the rights and actions deemed the previous trustee in a deed of trust agreement.  This got me thinking that if a bank could name a new trustee how did that relate to the independence of the trustee in a deed of trust?  So, a bank can “name” a new trustee, I find no issue with this.  However, substituting a trustee without the consent or signature by the borrower defies the Statute of Frauds.  It also means that if a bank has the right to substitute a trustee, and the previous trustee has no means of refusal of this substitution, then this simply means that the trustee holds no power against the will of the lending institution.  A new trustee could be substituted if the original or presiding trustee was no abiding by the actions of the bank.

So, if a trustee was calling to task some of the actions that a bank needed to address in a foreclosure action, and the bank was not addressing legitimate tasks regulated for them to do in a foreclosure action, the bank could substitute the trustee holding the bank to task and replace them with a substitute trustee that will allow the bank to act in whatever way it suits the bank and to file whatever document necessary to file stating that the bank has complied with all of the rules when in fact they did not.  Due to the fact that the bank might not have complied with the rules according to the power of sale, but the substituted trustee files the documents and asserts to the court that they did in fact comply and are acting in accordance to the rules the bank could foreclose on anyone, at any time, for any reason or no reason at all because there would no longer be a party entrusted by the state, namely the trustee, that will be tasked with oversight against the bank.  The oversight cannot be enforced by the trustee.  Because if they did try to enforce true oversight against the bank acting under the power of sale, if the trustee was not acting in the interests of the bank, the bank could substitute them with another party who would act in the way the bank wanted.  The bank would then be able to file any document, against any borrower, or against any property at any time.

This seemed out of line with the rule of law.  First, as per the Statute of Frauds any and all parties involved in the real estate contract must sign on all documents to the contract and all changes to any document to the contract throughout the life of the contract agreement.  Second, the CA Supreme Court rule in 1978 that the trustee is to be a third and independent party in a deed of trust agreement.  The trustee is to be at arms length from all parties involved in order to hold no bias to either party in the agreement.  It was the trustee who was to make sure that both parties acted in compliance with the rule of the contract.  It was the trustee who was tasked to protect the borrower’s title from any wrongdoing from the bank, and to protect the rights of the bank to be able to foreclose if the borrower failed to pay.  If either party did not act in accordance to the rules of the contract, including the power of sale clause, the trustee had the power to stop the foreclosure and make the bank act in compliance to the rules of the power of sale.  Third, if the trustee holds no power of oversight against the lender in a deed of trust agreement and they can be replaced at will by the lender in the agreement with another trustee who will act on behalf of the bank this means that there is absolutely no protections held for the borrower or the borrower’s title in a deed of trust.

This means that there is no true trustee and the trustee is a strawman acting on behalf of the banks.  This means that the banks know that they can manipulate the trustee to act on their behalf and know that the borrower has no protections to their title.  This means that everything that the deed of trust agreement stands for is moot.  This means that unless the banks inform the borrowers of this information which would make every borrower change their mind to whether or not they would sign a deed of trust agreement, prior to signing of the deed of trust agreement, this constitutes and act of fraud.  The fact that the banks are privy to knowledge about the trustee and the deed of trust that the borrowers are not privy to when the borrower signs the deed of trust agreement then there is not a meeting of the minds, that there is a misrepresentation of facts regarding the contract and therefore the contract is VOID.  if the contract is void the borrower is under no obligation to pay the lender for the money borrowed.  If the contract is void, there is no legal way a bank can foreclose against a borrower using the power of sale clause in the contract because there is no contract.  This means that a bank is unable to foreclose against a borrower if the bank used a deed of trust agreement to secure the money lent to the borrower.  This means that a bank holds no right to foreclose and the borrower holds the right of title free and clear.  If is as if the contract were 13 sheets of blank paper there would be just as much legal reference to the contract as it stands.  The banks participate in this misrepresentation of facts in every deed of trust document throughout the state of CA since 1998.  Let this sink in.

After I submitted this information in my fourth amended complaint and the defense attempted to argue various points of law in order to demurrer the complaint that I chose not to argue or respond to any of their legal points or case law that they were spewing out.  Because none of it was relevant.  I responded by stating that they must first prove that they have a true and legitimate contract to begin with.  They must first prove that they have and are in possession of a true and legitimate deed of trust contract as outline by the rule of law.  I was now holding them to task to prove that the deed of trust was legitimate as to the rules of law in the state of CA.  They must show the court that the trustee holds an independent position in the deed of trust agreement.  They must show the court that the trustee would be able to hold the banks accountable for wrongdoing against a borrower’s title without recourse against them by the banks if the banks were to chose to do so.  They must show that all parties have signed off on all documents and changes to the deed of trust agreement throughout the duration of the contract.

The defense was unable to do so.  The court was now in the unenviable position to side with a homeowner who has proven to the court how all of the deeds of trust in the state of CA since 1998 are based on VOID paperwork.

After this information was presented in the courtroom and there was no response available from the defense the judge looked at me and smiled and said, “Mr. Boggs, I know exactly what you are trying to state now.  I understand your argument and see where you are going with this.  Since we have nothing else from the defense,” he stated, “that I will have to take this under consideration in my chambers.”  Note that when he said this the courtroom was filled with other people from other cases and other witnesses that were listening quite intently.  So, by his “taking into consideration” meant that he would not rule in the courtroom so that all of the people would hear his response or decision.

So, he dismissed the case and took the documents out from public view and access.  This was how he silence my court documents.  The reason why he silenced the court documents should be clear at this point.  His decision that Wells Fargo Bank issued a fraudulent contract based on the fact that there is no legitimate trustee participating in the contract and that the bank failed to represent this fact to me prior to the signing of the contract makes the contract void means that all other deed of trust agreements in the state of CA could now file an actionable defense against the lender in the other contracts therefore negating every deed of trust in the state of CA dating back to 1998.  This also means that all of the money spent on all of the contracts by law should be returned to the borrowers who were lent money under the bank’s deceptive practices and misrepresentation of facts.  This means that the entire non-judicial foreclosure system is a fraud and broken.  This means that all foreclosures in CA must immediately be stopped and reviewed.  He also knew that there are 36 deed of trust states in the United States to which all of them have similar rules allowing similar practices across the nation.  This would have set a precedent that would have had a domino effect that would have collapsed Wall Street much more than what took place in 2008.  This not only would have set up a precedent that would have negated all deed of trust contracts in 36 states, but this would have also negated every mortgage backed security that used any of these mortgage agreements that these deeds of trust were held with that had been traded since 1998.

I think you can now understand why the judge silenced my court documents.

This is our judicial system.  There won’t be a ruling on truth, but only a ruling that works in the best interest of keeping the flow of capitalism as we have come to know it.  Despite the fraud, despite the corruption, despite any truth.

 

 

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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

The Trustee is given the presumption of correctnes

The Trustee in a non-judicial foreclosure procedure is given the presumption of correctnes[s] in the performance of their position.  This is what the banks or beneficiaries are well aware of and use to their advantage in a non-judicial foreclosure procedure.  Because, by law as ordered by the CA Supreme Court, the Trustee is ruled to be independent and act on behalf of the court in the transaction and is to be at arms length from either the borrower or the lender, the documents filed by the Trustee are considered to be true and correct.  What exactly is true and correct anymore?  As we move forward through this post I may repeat myself a few times in order to make sure of the reader’s clarity.

You see, the Trustee is given the power of the court and subsequently is given the presumption of correctness.  Meaning that, if there were to be a legal action taken by a borrower against a beneficiary for wrongful foreclosure in a non-judicial foreclosure action, the court will first abide by what the Trustee says to be true and correct because they are acting as the court.  It is now the job of the party being foreclosed on to show the court of the illegalities being made by the beneficiary, rather than the Trustee doing their job to begin with, because the Trustee works for the banks and is a strawman in the transaction acting in the best interest of the bank.

It is the job of the Trustee to be independent and to make sure that the paperwork being filed is done according to the rules and is true and correct as it relates to the necessary actions to be taken in the power of sale.  What this truly means is that the paperwork that is submitted by the beneficiary is to be filled out correctly, however, this does not mean that the contents and actions which are stipulated within the documents have been done correctly and in accordance to the rule of law.  So, therefore, the Trustee oversees that the paperwork might be FILED correctly, however, that does NOT mean that the actions to which the beneficiary is claiming to have done, that have been stipulated within the documents in order to comply with the rules of the power of sale, or the contents of the documents, have been done correctly or if at all.  But, because the Trustee is given the presumption of correctness by the court it is assumed by the Superior court that things have been done according to the rules of the power of sale.

So, what happens when the beneficiary does NOT follow the rules of the power of sale?  According to the court, because the Trustee allowed the paperwork to be filed in the County Recorder’s Office, the Superior and Federal Courts assume that the contents of the documents are true and correct.  Why is this?  Because the Trustee is to be independent of both parties in the contract and is to be without bias to the information one way or the other.  It is because of this assumed independence that the Trustee is given the presumption of correctness in their actions.

The beneficiaries know that they have owned the Trustee and have since 1998.  They know that the Trustee is not independent and that the Trustee works in the best interest of the beneficiary and with no interest to the borrower.  For this reason, the Trustee will file any document that is filled out by the beneficiaries, or any party acting as a beneficiary, even if all of the information in those documents are a lie, false, and fraudulent.

When Wells Fargo came at me with guns blazing and filing their Notice of Default, I noticed that the documents were filled with incorrect information.  See my post Notice of Default.  The contents of the information were incorrect.  The papers that were being filed were being filed in order to deceive the court so that the beneficiary could quickly foreclose without allowing us the opportunity to rectify the situation from our end.

The beneficiary is able to use the accepted public perception, and the rule of law set down by the CA Supreme Court in 1978, which dictates that the Trustee is independent.  In this independence it is the intent that the Trustee act on behalf of the court.  Therefore the paperwork is considered true and correct because of the presumption of correctness that is given to the Trustee no matter what the information in the paperwork seems to state.  This is how someone who is current on their payments can be foreclosed on.  This is how someone who paid cash can be foreclosed on.

The Trustee has worked for the banks and has been since the Senate Bill 1638 was passed as law and became active law on January 1, 1998.  The courts have turned a blind eye on fact that the beneficiary and the Trustee are to be independent.  The courts have incorrectly allowed or acted in a complicit nature to the fact that the banks and the Trustee are able to work together in a fraudulent manner.  The courts have turned a blind eye to the fact that when there are any changes to a real estate contract they must be signed by all parties.  The State has incorrectly allowed or acted in a complicit nature in order to allow the banks to fraudulently use a deed of trust mortgage since the year 1998.

(NOTE: If you have not read my previous posts on this issue you can do so and catch up by clicking How is your deed of trust VOID?)

The judicial system itself sold out to a law that had been in the books since 1677.  In 1998 when CA Civil Code 2934a was amended through Senate Bill 1638, and instilled into law on January 1, 1998, it was reiterated in the new law that all parties must sign to any changes to the contract agreement.  Because the courts have turned a blind eye to the fact that the Trustee is to be independent is the exact reason that the deed of trust agreement is fraudulent and VOID.  Because the courts and the state have turned a blind eye to the fact that all parties must sign any and all changes or substitutions that are done to the deed of trust agreement also show how corrupt things have become.

 

 

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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

Lis Pendens

legal contract

First of all, I wish to express my profound gratitude for all of those people throughout the world who have registered to become members of this blog, which deals with my court history of the fraudulent and illegal foreclosure procedures by Wells Fargo Bank’s attempt to wrongly foreclose on my property, to which I subsequently fought against them in court while acting as my own attorney.  I am also very grateful and humbled by the emails I am receiving.  Please grant me time to respond to your email inquiries, but I will do so at my earliest convenience.

As we have found through my learning of the statute of frauds, a law which dates back to 1677, that any transfer of any rights or privileges to a real estate contract must be done in writing and signed by all parties involved.  This is so that all parties involved in the transaction become privy to the changes and knowledgeable of any changes and of any new parties in the contract.

In US law, a lis pendens is a written notice that a lawsuit has been filed concerning real estate, involving either the title to the property or a claimed ownership interest in it. The notice is usually filed in the county land records office. Recording a lis pendens against a piece of property alerts a potential purchaser or lender that the property’s title is in question, which makes the property less attractive to a buyer or lender. After the notice is filed, anyone who nevertheless purchases the land or property described in the notice takes subject to the ultimate decision of the lawsuit.

Lis pendens is Latin for “suit pending.” This may refer to any pending lawsuit or to a specific situation with a public notice of litigation that has been recorded in the same location where the title of real property has been recorded. This notice secures a plaintiff’s claim on the property so that the sale, mortgage, or encumbrance of the property will not diminish plaintiff’s rights to the property, should the plaintiff prevail in its case. In some jurisdictions, when the notice is properly recorded, lis pendens is considered constructive notice to the other litigants or other unrecorded or subordinate lienholders. The term is sometimes abbreviated as “lis pend“.

The County Recorder’s Office will record a lis pendens upon request of anyone who claims to be entitled to do so (e.g. because they have filed a lawsuit). If someone else with an interest in the property (e.g. the owner) believes the lis pendens is not proper, they can then file suit to have it expunged.

Some states’ lis pendens statutes require the filer of the notice, in the event of a challenge to the notice, to establish that it has probable cause or a good likelihood of success on the merits of its case in the underlying lawsuit; other states do not have such a requirement.

This specific document had been on the forefront of the paralegal’s mind, every time we would meet, as we were preparing documents to initially file the case.  Due to the fact that there was a scheduled date set for the sale of the property, we had been under the gun to try to get all of the necessary paperwork put together in order to file the lawsuit.  The paralegal made sure to impress upon us the necessity to look into also filing a lis pendens, after we would file our case paperwork.  This is because a lis pendens can be a legal document that helps to stop the foreclosure process in its tracks and this is because a buyer at a foreclosure sale is much less likely to purchase a property in foreclosure if it has outstanding liens or litigation against the property thereby they would move on to another property to purchase or rather wait until the liens or litigation on the property would get settled.  Also, the parties orchestrating the foreclosure procedure might be inclined to take the property off of the foreclosure timeline due to the fact that they would hold liability as to their actions if they were to wrongly or illegally sell off a property that then ends up being litigated in favor of the plaintiffs.

One thing I found throughout my legal history is that the judicial system does not make, or wish to make, things easy for someone who is within the system acting as their own attorney.  The system is filled with judges with whom all judges used to be lawyers.  Those judges understand that when someone is litigating their case as a Pro Per, or Pro Se, they are taking business away from a lawyer.  The judge’s are simply looking out for their fellow golfing buddies.  So, it is simple that judges can, and do, make the process difficult for those acting on their own behalf.  Perhaps so that the pro per party might finally end up getting fed up with the system and subsequently would eventually hire an attorney.  It is also because, judges do not wish to deal with people who don’t understand the legal procedures or perhaps do not have the acumen to argue their case in the same manner that a trained lawyer might.  This would mean that the judge would have to actually do some real thinking in order to see within the thoughts and reasonings of a “normal” person, rather than the systemic legal authorities that are quoted on a daily basis which make a judge’s decision easy.  Plus, the judge will be less likely to get any payola under the table in order to settle or end a case from a “normal” citizen, who is acting as their own attorney, than they might receive a payoff from a corporate law firm with whom the judge just may have stock in their own personal retirement portfolio of that financial institution.  But, I digress…

I say all of this because only when I went to the county recorder’s office to file our lis pendens did I find that, in the state of CA, according to California Civil Code of Procedure 405.21 states, that if you are acting as your own attorney you must have a judge review your case and sign off on your lis pendens before you can make it active and record it into the public record.  Therefore, we had to run back to and around the courthouse looking for an available sitting judge who would review the case documents in order to then sign off on the lis pendens.  There was no guarantee that the judge would sign, and we were at the last day prior to the scheduled sale of the property which was to take place in only a few short days after the weekend.  The pressure was on.

We finally were able to see the judge.  He took our case file to his chambers and reviewed the documents for about 45 minutes before he then came out of his chambers, handed the docs to the court secretary, who then asked us to approach.  She gave us our documents.  We turned the front page over to the next to see.  The judge had signed his approval and we ran over to the County Recorder’s office and filed the lis pendens and made it part of the public record.

My filed Lis Pendens

One thing I wanted to impress a point on was the fact that if someone else with an interest in the property believes the lis pendens is not proper, they can then file suit to have it expunged.  I wanted to state that Wells Fargo Bank, after we filed our lawsuit and moved it forward through the life of the lawsuit, they never attempted to have the lis pendens expunged.  Interesting, to say the least.

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.

©copyright 2014 Doug Boggs

Statute of Frauds

I wrote in the last post about the Statute of Frauds in hopes that you might take a bit of time to review the rules that I specified in order to follow and learn, as I did, how my mind was beginning to learn and process information. I wanted to show you what questions began to arise and why. I want you to be able to expand your thinking, as I had to, so that you don’t do as I did and take any document on its face, as if it were legitimate, simply because it seemed official and it was registered in the County records. This, I began to find, means absolutely nothing.

As we were doing research, and we began to put our complaint together with our paralegal, specific questions began to arise. We were curious as to this new entity named NDEX West, LLC. This company was never part of our original contract paperwork. How could they be involved now at this point? We had no documentation sent to us previously regarding their inclusion into the contract. The foreclosure paperwork that began on Dec. 28, 2010, was sent to us by NDEX West. Yet, who are they? How do they have any part of our Deed of Trust? If they do have any participation in our contract where is the valid legal proof of this?

I thought that if the bank did not comply with the law, in the process of their attempts to foreclose on us, then they are in fact the party that is in Breach of Contract. If this new party, NDEX West, was not legally part of the contract then they have no right to be sending us documents on behalf of the bank. I couldn’t find any points that they did in fact have any right, and I felt that they could not legally prove that they have the right to initiate any part of the foreclosure process. As I have posted previously the rules which govern the foreclosure process, in the state of CA, are outlined in California Civil Code 2924.

(NOTE: Some codes have been rewritten or modified, or have become updated law. Remember to review the codes that are pertinent to the rule of law for the contract at the time of the crime.)

My pressing questions that were keeping me up at night seemed simple to me. How can the bank legally initiate the non-judicial foreclosure process by filing fraudulent information, beginning in the first document, named Declaration by Wells Fargo Bank, sent to the court regarding the foreclosure? In this document, if you recall, they checked a box which stated that they tried all attempts to contact us regarding our breach of contract, but failed to get a hold of us. This was a lie, since we had been in contact with the bank a few times a week for the previous year and a half in our lengthy attempts to modify our loan. We had previously been current on our payments, until they advised us to stop paying in order to better qualify for any modification program.

The bank checked the box relating to the code 2923.5(g) which stated that they had tried ALL of the numerous attempts outlined within that code to contact us, but were unable to. As the code read, that in order to comply with this rule, the bank would have had to comply with ALL of the items within the code. Not some, but ALL. Yet, the bank was stating their compliance with the code 2923.5(g), in that they could not find us. By checking this box in the Declaration, they were stating to the courts that because they claim to have made all of these attempts to contact us, yet were unable to contact us so, that because of this, they could begin the “fast track” process of foreclosure. They checked the box regarding CA Civil Code 2923.5(g), because they were claiming that they were unable to locate us in order for them to allow us to attempt to rectify our breach. So, in their submission of this document to the County Recorder’s Office they committed a fraud against the court, therefore the bank is in breach of contract.

I began to research Fraud itself. As I was doing so, I came upon what is known as the Statute of Frauds. The Statute of Frauds (29 Car 2 c 3) (1677) is an Act of the Parliament of England enacted on April 16, 1677. This rule of law is still active and pertinent law in the United States. It required that certain types of contracts, wills, and grants, assignment or surrender of leases or interest in real property must be in writing and signed by all parties involved to avoid fraud on the court by perjury and subornation of perjury. It also required that documents of the courts be signed and dated.

Let’s look at this for a moment. The contract that we were dealing with was a Deed of Trust mortgage contract. This means that it was dealing with real property. Ok, check.

Was it in writing? Yes, check.

So, then if all assignments or surrender of interest must be in writing, were they? Did our original trustee sign off their interest to this new entity, named NDEX West? No.

Was it done in writing? No.

Did all parties sign off on this? No.

Did the bank lie, or commit a fraud against the court, in their stated attempts to contact us regarding our breach? Yes.

Can you start to see how things can begin to formulate themselves? We are still in the early stages of all of this, but I think that you can begin to see that, in my case, beginning from the first document, that the banks began to defraud the court in order to quickly foreclose on us and not allow us the opportunity to rectify any breach. You can begin to see that the non-judicial foreclosure system which allowed the bank to defraud the court is indeed flawed. You can begin to see that there is no true oversight to the documents that the bank was submitting to the court. You can begin to see that the Count Recorder’s office is not in the position of verifying the legitimacy of documents to be submitted, but recording documents to the county record. They record the document, they do not verify the legitimacy of the contents of the document. That, I began to learn, was the job of the Trustee.

So, the Trustee we had on our Deed of Trust, named Golden West Savings Association Service Company, did not do their job correctly. As the Trustee of record they did not verify the legitimacy of the documents being submitted to the County Recorder’s Office. They were not the entity submitting the documents that were initiating the non-judicial foreclosure procedure against us. They did not legally transfer any part of their right to title to any other entity, namely NDEX West. They did not inform us of any transfer of any of their rights. Because there was not legal transfer done.

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©copyright 2014 Doug Boggs