Tag Archives: real estate

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

How is your deed of trust VOID?

How is your deed of trust VOID?  The example herein will be using CA law, however keep in mind that there are 34 other states that use deeds of trust.  Due to the nature of the foreclosure fraud that happens throughout the country in EVERY state, there is a sure chance that there are similar laws and rules that dictate a similar scenario in your state.

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If someone lends you money it seems quite natural to pay them back for that action.  This is the world we have all seemingly agreed to live within.  In our global paradigm of capitalism it is natural to most people that it is honorable and just to pay the lending party back for the money that was borrowed.  This seems fair and responsible to want to pay back the lending party for their generosity.  This is something that I have heard from everyone that I have spoken to on this subject.  Sometimes there are transactions that have the person who lent the money receive interest for the money that they lent the borrowing party. All of this seems quite natural in the order of things.  People find it honorable and their personal responsibility and duty to return borrowed money.  This seems to be human nature.

There are also times when money gets exchanged and there is a contract involved outlining the details of the exchange.  In normal contract law, both parties must understand all of the details that are outlined within the documents.  It is the obligation of the contracting party(lender) to make sure that the borrower understands all of the details that pertain to the contract.  If there are certain details that are within the contract that the borrower does not understand it is the job of the lender to make clear of any questions or concerns for the borrower.  There must be a “meeting of the minds”.  Everyone must be “on the same page”.  This means simply that the lender and the borrower must know and understand all of the terms of the contract and must agree to all of the terms of the contract.

Now, let’s put this into a context using real estate.  In this context, the contract MUST be in writing.  This dates back to a law called the Statute of Frauds, back to the year 1677.  All of the terms and conditions of the contract MUST be clear and understood by the borrower, as we said that this is standard contract rules.  In real estate, the contract, through the life of the contract, MUST be signed by all parties within the contract.  This comes from the Statute of Frauds.  If there are changes in a contract, then the changes or amendments create a new contract between the parties, therefore, all parties must sign off on any changes throughout the duration of the contract.  Seems fair, right?  If this doesn’t take place and there is confusion about any of the terms of the contract this means that the contract is voidable.

What if the lender does not inform the borrower of certain terms and conditions that are in the contract?  This would mean there is never a meeting of the minds and the contract is voidable. However, what would happen if the lending party actually deceived the borrower, by hiding certain details that exist in some of the terms of the contract, in order to entice the borrower into signing a contract that if the borrower were to know that information would not sign the contract?  These details that are withheld are paramount to the meaning of the contract itself and if the borrower were to have known the details of this withheld information prior to signing the documents they would have not agreed to the terms of the contract.

If this were to happen then the contract is not voidable, it is VOID.  The contract is not worth the paper it is printed on.  This is due to the fact that the lending party knowingly defrauded the borrower by not informing the borrower of imperative details of the contract agreement, so therefore through the actions and choices made by the lender in an attempt to deceive the borrower in order to create the transaction, the contract is VOID.  The borrowed money doesn’t need to be paid back because it was created out of fraud.  If a contract is created out of fraud it is not voidable, the contract is void.  This is clear law.  It is VOID because it was knowingly created in order to deceive one party over the other.  So, the party who attempted to deceive the other is out that money due to the risk of deception they chose to enter into in order to orchestrate the contract agreement.

Everyone knows that there is some level of deception in a monetary transaction when they go to the table in Vegas to gamble.  Everyone knows that the house always wins.  However, in real estate we don’t normally think that we are being deceived when we borrow money to buy a property.  In this case, your house doesn’t win, you lose your house.

This is what happens everyday, in every deed of trust contract, in CA, and all other states throughout the country.  Again, we will use CA as an example for this, but there are another 34 other states in the United States that use deeds of trust.  And many of the other states are attempting to pass legislation that will create deeds of trust states.  If you are a homeowner then this is what happened to you, or your family, your neighbor and every homeowner you know who borrowed money using the regular avenues of institutional financing.  This has been happening in the state of CA everyday, on nearly every deed of trust agreement since the year 1998.  Whether the property is valued at $1 or $100,0000,000, or more.

How is that?  Some of this is laid out in my previous post found here, but we’ll go over it again in order to make things clear.  Do review the previous post as well for a broader scope of information and point of view.

It is hard for people to grasp that they have been swindled when they are still in their homes, are paying for their money that they borrowed and no one is knocking on their door demanding for their money.  Life seems “normal”.  It seems that all is okay and that they were not defrauded.  I hear it every time I talk with people.  They say, “Oh, that didn’t happen in my case, because everything is going well.”  However, you have been swindled and the bank is betting on your moral compass that you will pay them for defrauding you.  And the banks are winning.  You’ve all been duped.

But, what if the contract were VOID and you didn’t have to pay back the bank for defrauding you out of your hard earned money?  How would that change your life?  How would that change our society?  What would you do with all of that money?  How different would your life be if you didn’t have to pay back the bank every month for their deceptive behavior?  It was their actions, not yours, which dictated the result of them not receiving their money back because they lent the money through deceptive means.  Why should the bank be rewarded the return of their money if the only way for you to borrower it was to deceive you?

What makes the banking industry immune to the rule of law?  Why are they able to lie to every borrower in order to secure a contract?  Why are they able to cheat every borrower out of hundreds, thousands or millions of dollars on a monthly basis?  Every month, every year, for decades?  Every month a property owner receives a statement requesting payment for a mortgage.  Every month a property owner is deceived out of their money through this statement from the financial institution requesting payment for the VOID contract that they are collecting on.  Every month, on every deed of trust real estate contract, the bank is defrauding you of your money.  This is mail fraud, and this goes on for each contract throughout the country, month after month, year after year.

How are the banks able to steal homes when someone paid cash for their home and never had a bank in the transaction?  How are banks able to steal homes from people who are current on their mortgage?  If these actions can happen does this mean that the entire system is wrong?

No, actually.  There are laws in place that are designed to orchestrate a proper real estate transaction.  The laws just aren’t being followed or policed.  What it means is that the entire system is corrupt, that’s all.  The systems that pertain to real estate are the lending system and the judicial system.  Both are corrupt in this transaction, otherwise we would have had solutions to this specific issue and I wouldn’t need to be writing this.  But, this is not the case, and I am sitting here writing.

You see,  in 1978, the CA Supreme Court issued a ruling in the Garfinkle v Superior Court for Contra Costa County, respondent being Wells Fargo Bank, specifically detailing the independence of the trustee in a deed of trust agreement.  The independence is what makes the deed of trust work.  They were clear on this, because the Trustee in the transaction is given the power of the court in the transaction.  The independence is what makes the “court” fair and just.

In CA, the process of foreclosing on a borrower is called a non-judicial foreclosure procedure.  The non-judicial foreclosure process was created in order to alleviate any burdens to the court system of any frivolous lawsuits and to help streamline the foreclosure process.  So, if the Superior Court was taken out of the foreclosure process, then another party needed to be reinstated to act as the court in order to conduct a fair and just foreclosure procedure.  So, as the “court” now being the trustee, which the CA Supreme Court ordered was to be independent to both the lender and the borrower in the real estate transaction, they are the rule of law.  It is their position to act independent of all parties and to make sure that both parties in the transaction follow the rules of law as it pertains to a deed of trust agreement.

These rules are outlined in the CA Civil Codes.  The Civil Codes create rules which dictate what is known as a Power of Sale clause that is in a deed of trust real estate agreement.  This rule is CA Civil Code 2924.  When the borrower defaults on the loan payments the Power of Sale becomes activated and the bank is able to begin the foreclosure process.  However, there are also a set of rules with which the lender must comply with.  They must comply each and every rule in order for the non-judicial foreclosure process to be done in accordance to the rule of law. If there is a rule that is missed or done incorrectly, it is the duty of the Trustee stop the foreclosure process.  It is then their duty as “the court” to make the banks comply with the certain code that they failed to comply with.  In other words, the foreclosure process must stop, the lender must make the efforts to comply with the rules of foreclosure and begin the foreclosure action again so that the lender then does in fact comply with all of the rules as they pertain to the foreclosure civil codes and rules of procedure.

So, if the bank doesn’t comply with the rules accordingly, the Trustee is able to stop the bank from wrongly foreclosing on the borrower.  One would think, but no.  It is this reason that people who have paid cash for their home are able to be foreclosed on.  It is for this reason that someone who is current on their mortgage can be foreclosed on.

You see, in the year 1996, the bank lobbyists wrote Senate Bill 1638.  It was brought to the table by then Republican Senator Ross Johnson and signed into law by then Republican Governor Pete Wilson.  This bill became enacted law on January 1, 1998, to amend CA Civil Code 2934a, which is part of the Power of Sale.  What was it that was in this bill that created every deed of trust to become VOID?

 SB 1638, Johnson.  Deeds of trust:  trustee substitution.
   Existing law sets forth the procedures for the substitution of
trustees under a deed of trust upon real property or an estate for
years therein.
   This bill would, as an alternative procedure, set forth the
procedures for the substitution of trustees under a deed of trust
upon real property or an estate for years, given to secure an
obligation to pay money, by the beneficiary or beneficiaries under
the trust deed who hold more than 50% of the record beneficial
interest of a series of notes secured by the same real property or of
undivided interests in a note secured by real property equivalent to
a series transaction.  The bill would also establish a process
through which all of the beneficiaries under a trust deed can agree
to be governed by beneficiaries holding more than 50% of the  record
beneficial interest of a series of notes in real property or
interests in a note equivalent to a series transaction, as specified.
  In order to substitute trustees or agree to be governed by the
majority interest holders, all parties to the transaction would be
required to sign and record a document containing specified
information.

So, as an alternative procedure, the new law set forth the procedures for the substitution of trustee under a deed of trust upon real property.  So, this new law pertains to the party (beneficiary) or beneficiaries under the deed of trust who hold more than a 50% control of the record beneficial interest of the note or a series of notes secured by the property.  In other words, this new law allows the beneficiary to be the party to dictate the substitution of a trustee under a deed of trust.  It goes on to state that in order to substitute a trustee that all parties to the transaction would be required to sign and record a document containing specified information.

Let’s tear this apart.

If the bank is the beneficiary, which in many cases is so, then this gives the bank the power to substitute a new trustee.  So, this means that if an original or other substituted trustee is not allowing the bank to perform illegal actions against the borrower, this law gives the bank the right to substitute to a trustee who will allow the bank to perform illegal actions on behalf of the bank in order to wrongly foreclose on someone.  It also means that every borrower must be a party to sign the substituted trustee when the bank is attempting to do this action.

Now, let’s tear this apart further.

If a bank chooses to foreclose on a borrower who is current on their mortgage and the Trustee is not allowing the bank to file the necessary fraudulent documents into the court, or the County Recorder’s Office, because the bank is unable to prove that the borrower has defaulted on their obligation, then the new law has now given the bank the right to change that Trustee to a party who will comply with the illegal activities of the bank who is choosing to illegally foreclose on someone.  So, let’s take this a bit further.  If someone has paid cash for their home and the bank’s computer spits out an address through their foreclosure software, or a human being puts in an address 222 instead of an 888 into the address of the party to be foreclosed, and there is no independent trustee to put a stop to the wrongdoing, then the wrong home will be foreclosed on.

So, when the bank offers the borrower a deed of trust agreement in the real estate transaction, it would be only natural for you as a borrower to assume that there is an independent Trustee that is in the transaction to make sure that the bank complies with all of the appropriate rules and regulations of the foreclosure process in order to protect your title, your home, your asset. The fact that the bank does not inform the borrower that they know that they can replace a Trustee who acts in the interests of the bank, and holds no interest to act on behalf of the borrower in order to protect the borrower’s title, is fraud.  Because this is fraud, the contract is VOID.

Would you sign a real estate contract if the bank, or realtor, told you that the trustee will not act on your behalf and will not protect your title if the bank were to decide to foreclose on you whether you defaulted, or whether you were current on your payments?  No, nobody would.

The courts have also allowed, because of this rule, the banks the ability to substitute the trustee in all deed of trust real estate transactions for decades.  They have also allowed this action to take place without the borrower’s signature, as it was outlined in the new law, as well as, the Statute of Frauds rule dating back to 1677.

The Trustee is a strawman.  Black’s Law Dictionary defines a strawman as a third party used as a cover in illegal or shady deals; a weak or flawed person with no standing.  So, if the banks know that they have the power to create a strawman for a trustee then there is in fact no independent trustee in the transaction as it was defined by the CA Supreme Court in 1978.

So, the law states that there is to be an independent party, named Trustee, in a deed of trust agreement.  But, the banks have the power to substitute a new trustee.  The courts have allowed the banks to levy this power without the borrower’s signature since 1998.

So, it is very clear that every deed of trust contract agreement that has been signed since the year 1998 is fraudulent.

How did I find this out?

When the very first documents in my non-judicial foreclosure action had incorrect information in them allowing Wells Fargo bank to quickly and illegally foreclose on me, I began to look into the computer archives at the county recorder’s office for a legitimate deed of trust agreement and a legitimate Substituted Trustee that was signed by all parties involved in the transaction, as the 1996 law stated was to be the case, I had to go back into the archives to the year 1997.  It was only then when I began to look into why.

When I began to understand the gravity of this specific issue, I realized that this was the needle in the haystack that no one is talking about.

When I formulated my argument in the court for the 4th Amended Complaint, Judge McGuiness of Superior Court in Alameda County looked me straight in the eyes and told me he understands what I am trying to state.  That he now fully understands my argument. He stated that he gets my points of fact and he would need to take this into consideration.

Why didn’t he simply rule on my case then?  Because the courtroom was filled with people.  Because it would become precedent and common knowledge that all deeds of trust, in CA, were fraudulent and illegal and VOID.  Since 1998…This would have created a situation that would have made every real estate contract either go into litigation and become VOID dating back to 1998, or certainly some other repercussion that was to be measured only as astronomical in our capitalistic paradigm.  But, I believed it is necessary for us to make these type of changes since the entire system is actually based on fraud.  And this is only the beginning.

My case was immediately dismissed and my court files were quickly silenced.

 

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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

CA Civ Code 2934(a) and why EVERY Deed of Trust agreement is void!

The state of CA is a Deed of Trust state.  Which means there is a note and a deed of trust agreement attached with a real estate contract agreement.  The state courts use a non-judicial foreclosure process in which to administer a foreclosure procedure.  The idea of a non-judicial foreclosure process is that it gives the judicial power over to the trustee to administer the foreclosure through the rules of CA Civ Code 2924, which is known as the Power of Sale clause in a deed of trust agreement.  In a non-judicial foreclosure process there is a presumption of correctness that is given to the trustee by the court as it is the job of the trustee to act in the best interests of the court.  It was stated by the CA Supreme Court that the trustee be at arms length and independent of both parties to the agreement in order to create fairness.  It is the job of the trustee to protect the Title from any wrongdoing of either party during the life of the contract agreement.

The fact that the trustee holds no power to protect the borrower from any wrongdoing from the bank in a foreclosure process means that the idea of the trustee and a deed of trust are corrupted as the trustee is a strawman.

Read thoroughly through CA Civ code 2934a.  This code was changed in 1998.   Herein, we will look at the rules as they are written to be effective after January 1, 1998.  I urge you to take a look to a side by side review of the code as it was written prior to January 1, 1998.

In its changes it takes away the powers of the trustee. It gives the power of the trustee, to protect the Trustor’s title from the beneficiary, back to the beneficiary. Which means that the beneficiary is in control of protecting the Trustor’s title and not the trustee, as it is assumed and outlined in the Power of Sale clause, or Ca Civ Code 2924, of a Deed of Trust contract agreement in the state of CA.

The bank knows this, yet, gives the borrower a deed of trust agreement to sign without informing the borrower that the details in the deed of trust are false which make the Power of Sale clause invalid.  The bank does not inform the borrower that the borrower has no protections to their title as soon as they sign the agreement, and that the bank is able to do whatever it wishes to the borrower’s title whenever they wish to do it. This is fraud by the misrepresentation of a material fact.

Because the banks know this information and neglect to inform the borrower of this important detail, that the trustee to a deed of trust contract is a strawman, then there is not a meeting of the minds to the contract agreement. The contract was constructed by the bank against the borrower without the borrower having all of the same information as the bank, as per the rules of the contract. Due to there not being a meeting of the minds to the contract prior to the signing of the contract, and that the rules of the contract are deceptive in nature and benefit one party over the other to the benefit of the bank constructing the contract, this is fraud by the misrepresentation of a material fact.

This also goes against the rules of the CA Supreme Court as per the independence of the trustee necessary in order to protect the interest of both parties involved in a deed of trust.

Through the rules that dictate contract law, and through the Statute of Frauds(1677), it is given that any and all changes in any real estate contract must be done in writing and signed by all parties involved in the contract.  There must be a meeting of the minds of the rules governing the contract or the contract is to be deemed void.

There are currently 35 states in the United States that use a Deed of Trust agreement.  There is legislation in nearly all of the other states to conform to a deed of trust and non-judicial foreclosure process.  There are similar rules in all states that allow this to take place.

 

CA Civil Code 2934a

2934(a)(1) “…a trustee may be substituted by the recording in the county in which the property is located of a substitution executed and acknowledged by: (A) all of the beneficiaries under the trust deed, or their successors in interest…”

This states that the beneficiary is allowed to name a trustee to be substituted, and acknowledge that they have done so and file that in the county recorder’s office.

It is also the job of the trustee to be independent in nature and arms length from either party to the transaction, as per a CA Supreme Court ruling, in order to make sure that all of the rules of the Power of Sale clause are to be followed by both parties in order to protect the interests of either party as to their relationship with the Title. Therefore, if there are any changes to the deed of trust contract it is the obligation of the trustee to make sure that all of the rules are correctly followed and the documents are correct in their information.

this means that the beneficiary is in full control of the trustor’s title, the Power of Sale process, and that the trustee is indeed a strawman.

2934a(4)(b) “If the substitution is executed, but not recorded, prior to or concurrently with the recording of the notice of default, the beneficiary, or beneficiaries, or their authorized agents shall cause notice of the substitution to be mailed prior to or concurrently with the recording thereof…”

As it is the job of the trustee to make sure that all of the rules of the Power of Sale are followed by either party in order to protect the interest of either party in the transaction, the question then lies, “how could the substitution take place and be ececuted without the knowledge of the trustee, or the signing off by the trustor?”

this means that the beneficiary is in full control of the trustor’s title, the Power of Sale process, and that the trustee is indeed a strawman.

2934a(4)(c) “If the substitution is effected after a notice of default has been recorded but prior to the recording of the notice of sale, the beneficiary or beneficiaries or their authorized agents shall cause a copy of the substitution to be mailed…”

this means that the beneficiary is in full control of the trustor’s title, the Power of Sale process, and that the trustee is indeed a strawman.

2934a(4)(d) “…the substitution of trustee shall be deemed to be authorized to act as the trustee under the mortgage or deed of trust for all purposes from the date the substitution is executed by the mortgage, beneficiaries, or by their agents. Nothing herein requires that a trustee under a recorded substitution must accept the substitution…”

this means that the beneficiary is in full control of the trustor’s title, the Power of Sale process, and that the trustee is indeed a strawman.

NOTICE: I am not an attorney and am not herein offering any legal advice. This is form informational purposes only. For legal advice please consult your own attorney.

 

 

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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.

©copyright 2014-2016 Doug Boggs

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.

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©copyright 2014 Doug Boggs