By Doug Boggs July 12, 2019
I personally don’t know if one might find bagels at a Bar Mitzvah, but I do know of a CA Boo Boo.
I recently found myself lost in a website reading through a Comment thread from a post named “Bagels at a Bar Mitzvah” and came across some interesting exchanges. This process wound me through a few different paths and down some shill filled rabbit holes. It was in that chaos of information that I came across a CA boo boo.
Now for clarity, this CA boo boo was not a code or quotable precedent but a moniker to a commenter whom I then followed a few thought trails. I will borrower this moniker though to help make my metaphor, thank you very much. The CA boo boo that I will be showing in this post stems from California’s SB1638. This legislation that the state Senate voted on in the summer of 1996 made a change to CA Civil Code 2934a that began on January 1, 1998. You can follow and learn more on this issue by visiting my previous post dedicated specifically to senate bill 1638. This legislative debacle helped to create arguments for Fraud and Standing to be viable causes of action to address in any given foreclosure. This legislation also made every deed of trust in the state, since January 1, 1998, void. That is a CA boo boo.
If every deed of trust is found to be void due to the fact that there is no independent trustee then that would bring up the question of Standing. Perhaps an argument in the alternative. Standing, or the argument for the lack thereof, is gaining some momentum in foreclosure courts as of lately. I find it a valuable cause of action because in all of the loan securitization audits that I have ever reviewed from anywhere across the country I have found fraud, forgery, and corruption leading to an argument for Standing, to say the least. Although, an argument for standing vs a ruling in your favor regarding your argument for standing is two different things. Due to corrupt courts, there are no guarantees about anything and therefore everything must be questioned.
What I have found is that most lawyers and nearly all of any Pro Se litigants take too much information for granted as prima facie. The Latin term prima facie means “at first glance,” or “at first appearance,” and it is generally used to describe how a situation appears on initial observation. In the legal system, prima facie is commonly used to refer to either a piece of evidence which is presumed to be true when first viewed or a legal claim in which enough evidence is presented to support the validity of the claim. In the U.S. legal system, there must be a prima facie case in order to commence legal proceedings, meaning that there must be enough evidence at first glance to assume that the plaintiff has a valid legal claim. This does not mean there must be sufficient evidence to prove the claim when filing, as determining the presence and truth of such evidence is the purpose of the trial system. The term prima facie is sometimes confused with the term res ipsa loquitor, which means “the thing speaks for itself.” Res ipsa loquitur may be used to refer to a situation in which the facts make it self-evident that the negligence, liability, or responsibility for damages lies with a party, based on the very nature of the accident or injury.
However, Res ipsa loquitur aside, if you don’t go down every rabbit hole this can come back to bite you in the proverbial ass. The difference between these two terms is that prima facie means there is enough evidence to file or pursue a case. Res ipsa loquitur means that the facts are so obvious that there is no need for further explanation. Let’s look further into that.
In my reviews of countless legal foreclosure cases, every legal team acting on behalf of any financial institution or beneficiary has filed facts as Res ipsa loquitur. When I was put in this position I chose to Respond and argue that nothing is self-evident in a non-judicial foreclosure. This is due to the idea of the self-evidence in a non-judicial foreclosure stems from the check and balance of the independence of the trustee who is ordered to participate in the transaction at arms length. In other words, it was the intent of the court to place the trustee to act on its behalf. This is where the filings of the trustee, as per the rules of the power of sale clause, come into play under the guise of their presumption of correctness. Since it is the intent of the law that the trustee is to act independently of either party in order to best protect the title as per the power of sale clause in a deed of trust agreement, thereby creating the presumption of correctness to any document filed, by amendment to the civil code of the power of sale clause negating the independence of the trustee thereby eliminates any presumption of correctness of the trustee acting as the adjudicating arm of a non-judicial foreclosure proceeding. The presumed protections to the borrower, or title owner, have all but been eliminated when the foreclosing party is able to file any document whether it is true or not in order to quickly and fraudulently foreclose since the trustee is acting on behalf of the foreclosing party. In order for this trustee to act on behalf of the judiciary, it was deemed by the CA Supreme Court to be independent. Because of this independence, it was assumed that the documents and rules to be followed in a non-judicial foreclosure are Res ipsa loquitur. However, since the SB1638 legislative decision in 1996 took away the independence of the trustee in a deed of trust agreement it is a veritable no-man’s-land in the legal lawless world of foreclosure. Res ipsa loquitur be damned. Question everything!
The amendment to CA Civil Code 2934a, due to the approved legislation of SB 1638(1996) gave the banks the power to replace a trustee at their discretion. Remember, the CA boo boo. This simply means that it is the bank’s decision, and no other party to the contract, as to who will hold the position as trustee in the deed of trust agreement. This defies all aspects of basic contract law and the Statute of Frauds (1677). Firstly, because the lender never tells the borrower that the borrower holds no control of their title as soon as they sign the contract agreement. The lender never informs the borrower that the lender can and will sell the borrower’s title on Wall Street and profit from that sale with no financial gain given to the borrower or title holder. The lender never informs the borrower that they could be foreclosed on at any given time for no reason and no rules need to be followed whatsoever as soon as the power of sale clause to the signed contract. This is a misrepresentation of facts on the lender’s part which is the basis of fraud. There is no meeting of the minds in the contract negotiation, thereby making the contract void. Since the contract is void there is nothing else to argue…however…
So, based on this path of logic drawn from the 1996 CA Senate, it is safe to say that if a trustee finds fraud, misrepresentation of facts or misleading information in any filings from any lender or beneficiary and calls them out on that claiming the lender cannot file that specific document or fulfill that specific rule of the power of sale clause of the civic code until they rectify the issue, the lender has the legal authority to replace them with a trustee they feel more inclined to work with who will do the bidding of the lender. This means that the trustee is not independent. The independence of the trustee was ruled on by the CA Supreme Court in 1978 case Garfinkle v Superior Court of Contra Costa County [21 Cal.3d 268}.
The facts are all there, but what is prima facie and what is res ipsa loquitur? Is it prima facie or res ipsa loquitur that the financial institution can file for foreclosure because they wrote the contract? Not one of the documents filed in any non-judicial foreclosure can be construed as either prima facie or res ipsa loquitur based on the fact that there is no independent trustee in the deed of trust agreement. The judicial and legal system placed the independence of the trustee as the pivotal point to allowing a non-judicial foreclosure to be legal and a valid means of litigation outside of the courts. it is through the independence of the trustee that gives the power of correctness to any and all documents being filed in a power of sale clause. However, if the banks can control and manipulate the trustee and negate the independence of the deed of trust agreement allowing them file any forged or fraudulent document to the court in order to foreclose on someone the whole idea of the non-judicial foreclosure as legitimate is defeated.
Since this is the world we live in let’s take things to the very basics and review when a homeowner begins receiving foreclosure documents. Is the original lender of record on the agreement the same as the lender acting as the foreclosing party? If so, does that lender have the right to write an agreement in the first place? Were they legitimately in business and granted the ability to do business in that state by the Secretary of State in order to construct a legally binding document? If so, did they follow every rule of contract law?…and we move forward from there.
What inspired me to write about the CAbooboo in this way was when I read through their comments of the thread from “Bagels at a Bar Mitzvah” and saw that all of the parties to the foreclosure in their case was the same as I had in mine. In Part Two, we will move forward and see how BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, World Savings, Wachovia, and Wells Fargo all have to do with one another and how they continue to run large scale fraud against the court and every party to a foreclosure they are party to.
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