Tag Archives: 1978 Garfinkle v Superior Court of Contra Costa County

Bagels at a Bar Mitzvah​ and a CA Boo Boo Part One

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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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I welcome those reading my blog. 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.

 

©2014-2019 Doug Boggs All Rights Reserved

 

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Dear David,

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Dear David,

You are in the state of CA, therefore, ALL of the documents pertaining to the borrower’s (your) original deed of trust purchase agreement are fraudulent on its face and therefore VOID.  This is true, but very difficult to argue in the court of law due to the fact that if the court negates your contract on this issue, it means that the court contends that every deed of trust contract in CA is VOID.  No court wants to rule on this.  So, it must be argued carefully and precisely and in a way to which a court might rule in your favor.

(This post is In response to a comment and email exchanges to a reader.)

The bank misrepresented and deceived the borrower at the inception of the deed of trust agreement.  The bank substituted a Trustee without your permission, acceptance or knowledge.  This is against the Statue of Frauds (1677) wherein EVERY change in a real estate contract MUST be agreed to and signed by ALL parties involved in the agreement throughout the life of the agreement.  This is BASIC real estate contract law.  The other problem with the substituted change is that the bank did this without your knowledge or consent.  This means that they are able to change the Trustee at their will.  According to SB1638 (1998) the bank is allowed to change the Trustee at their discretion.  This means that the acting Trustee is not allowed to NOT be substituted if they deem so otherwise.  This means that the Trustee is NOT independent, as it was ruled by the CA Supreme Court in 1978 in Garfinkle v Superior Court of Contra Costa County [21 Cal.3d 268}.  The independence of the Trustee is deemed imperative to the non-judicial foreclosure process because the courts have given the Trustee the presumption of correctness.  This means that it is the intention of the non-judicial process that the Trustee act as the court and therein what the Trustee states as true and correct is deemed true and correct.  This is due to the fact that the Trustee is to be independent as based on the Supreme Court’s ruling in 1978.  However, in 1996, the Senate Bill 1638 became enacted law in 1998.  This Bill allowed the banks to substitute the Trustee at the will of the bank.  This means that the Trustee is controlled by the financial institution.  This means that there is no independence of a Trustee at the inception of the Deed of Trust agreement.  This means that if the bank does not inform the borrower of this fact at the inception of the contract agreement then they have deceived the borrower into using a Deed of Trust agreement.  This means that through this misrepresentation by the banks of the material fact that the Trustee is not independent, that the Deed of Trust agreement is in fact fraudulent on its face and therefore VOID.  This means that there was never a legal Deed of Trust contract agreement to begin with.  Let this sink in!!

This means that you acquiesce to a viable contract if you argue ANYTHING outside of these facts.  This is what the opposition wants you to get to.  The fact that there is no contract means that absolutely anything you argue pertaining to the contract brings you to the point of agreeing that there in fact actually was a contract.  This is what they want.

First, they must prove that the original and subsequent substituted trustees in the Deed of Trust agreement are in fact independent and can protect the borrower from ANY wrongdoing by a financial institution or any other party acting on behalf of the financial institution throughout the duration of the deed of trust agreement.  They are incapable of proving this issue.  This is where they do not want to be, because they cannot prove that the Trustee is independent.  If the original and any subsequent Trustee is not independent and can protect either party’s best interest in a deed of trust agreement then there is no deed of trust agreement.  This was the intent of the CA Supreme Court ruling in 1978 that the trustee is entrusted to protect BOTH parties from any wrongdoing to the other party in a deed of trust agreement.

As the Trustee is given the presumption of correctness in all of the their actions in a non-judicial foreclosure procedure in the state of CA, it is assumed that all of the documents and actions by either party that the trustee is entrusted to deem as true and correct are in fact so.  This means that the trustee is entrusted to make sure that the bank follow all of the rules to the deed of trust and the power of sale clause, CA Civil Code 2924 et al, in the state of CA.  If the bank controls the trustee and are allowed to break the rules of the power of sale clause then the trustee is incapable of acting in the best interest of the borrower at any point of the duration of the deed of trust agreement.  This means that the borrower was deceived by the bank in that the bank knew all along that the trustee was not independent and was in fact controlled by the bank since the inception of the deed of trust agreement.  This means that there is legal contract.

If there is no true legal deed of trust contract agreement then the bank lent the borrower money under false pretense and the deed of trust is void and the money borrowed by the borrower is not backed by any real estate agreement.  The money borrowed was in fact borrowed under a different premise to which is not arguable in this specific case and must be decided in a different court.  But, the court herein, MUST rule, based on this premise that the deed of trust is in fact VOID.  Now, since there is not deed of trust contract the borrower is the true owner of the title then there is no claim by the bank to any part of the borrower’s title.  Therefore, the bank must now prove to the court of their standing to foreclose.  If the bank has no legal agreement to any claim to title based on their intended use of a deed of trust contract which is fact deemed void then the bank has no standing for any claim whatsoever to the borrower’s title.  They might have claim to the money that they lent the borrower, but this would be a personal loan or some other instrument, but this is another argument in another court of law and cannot be included in this case.  The borrower is the owner of the property and the money.

Whatever documents a bank or trustee acting on behalf of the bank might show are bogus simply based on the fact that they first must prove that they have standing.  They cannot prove standing in ANY non-judicial foreclosure procedure because they are incapable of proving that the trustee is in fact independent in their position.  Since the CA supreme court stated that this must be the case, and the SB1638 states otherwise, and the banks have acted against the CA supreme court ruling and the courts have allowed the banks to control the trustee using 1638, then the trustee is not independent and therefore, based on CA Supreme Court and the Power of Sale clause (CA Civ Code 2924) the deed of trust is in fact void.  If it is void then the bank has no standing.

Also, this means that since the inception of the deed of trust agreement between the lender and the borrower, ANY monies collected on the basis of this agreement have been collected so illegally.  This means that for every month, and every year that the borrower has paid for the money borrowed based on this agreement have been billed and collected for under false pretense and must be returned to the borrower until the courts can rectify how the bank is able to actually collect on the money that they lent due to the fact that there is no legal binding agreement in place that instructs the borrower appropriately and legally to pay the debt off to the lender.  Since the deed of trust agreement is bogus, the bank has no legal basis to come for any debt to the lent money to the borrower.  They have no legal right to challenge the borrower’s title whatsoever.

I am not an attorney and do not offer any of this information as legal advice.  Any information found herein is not to be construed as legal advice.  Please consult a licensed attorney for any further advice on this issue.  This is simply an explanation of how I proceeded in my case based on the legal information that I collected during my case.  I suggest that you talk to your own attorney or licensed legal counsel prior to acting on any of this information.  This information does not in any way constitute any legal binding agreement between the author or the reader.

I hope that this helps clear things up for you.

Doug Boggs

 

 

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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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It’s actually all quite simple, but so corrupt

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Once you see behind the proverbial curtain you will find that “it’s actually all quite simple, but so corrupt.”  Why do we call it a justice system, when the justice is gone?  Why do we call it a Trustee when it is in fact a strawman?  Why do we call it a Deed of Trust, when there is no trust involved?  Why do we call it a Non-judicial foreclosure procedure, when the courts are partisan to the fraud?  Perhaps it is called Non-judicial because you will never find true justice.

 

It all comes down to this: “The banks are incapable of proving that the Trustee is in fact independent in the Deed of Trust contract which the bank used as the instrument as means to attach the home as collateral against the mortgage.  The bank is incapable of proving that the Trustee has the power to protect the homeowner from any wrongdoing by the bank during the life of the Deed of Trust contract as described by the need for the Trustee to be recognized as an independent party to the Deed of Trust transaction.  If the banks are unable to prove of the independence of the Trustee in a Deed of Trust agreement then they are in fact committing fraud when using a Deed of Trust agreement when they do not inform the borrower of the fact that the Trustee is not independent and is incapable of looking out in the best interests of the borrower in the Deed of Trust.  If the bank uses a Deed of Trust agreement, knowing that the Trustee is not independent as described by the CA Supreme Court in 1978; Garfinkle v Superior Court of Contra Costa County, they are in fact committing fraud against the borrower at the inception of the contract which makes the contract in fact VOID.”

 

Because the bank knows that they are in control of the Trustee in a non-judicial foreclosure action they are able to in fact foreclose on anyone, anytime, anywhere whether they have a mortgage or even paid cash for their property.   Because the banks know that they own the power to replace the Trustee at any time for any reason they see fit they know that if they wish to file fraudulent paperwork to the County Recorder’s Office in a non-judicial foreclosure.  Because there is no party looking out for the interest of the property owner and the courts have handed over the justice system to the Trustee in a Non-Judicial foreclosure action.  Because the courts have entrusted the Trustee, and the CA  Supreme Court has ruled that the Trustee is to be independent in a Deed of Trust agreement they have given the judicial power of correctness to all of the documents that are filed into the court in a non-judicial foreclosure procedure.
The reason the bank or other party is able to file whatever paperwork they choose in order to foreclose on someone is due to a 1998 rule that changed the rules to the Power of Sale clause.  This rule comes from the 1996 Senate bill 1638:

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.

This rule gave the bank to power to substitute a new trustee at the will of the bank thereby destroying any semblance of law to the Power Of Sale clause or CA Civ Code 2924 therein making any Deed of Trust agreement fraudulent on its face and therefore void.  Which makes EVERY Deed of Trust agreement since Jan 1, 1998 in fact VOID.

 

We will go over the true repercussions of this next.

 

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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

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