Tag Archives: CA Supreme Court ruling

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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Something interesting this way comes

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Something interesting this way came on Dec. 17, 2018.

By Doug Boggs         July 3, 2019

 

Some say that there have been minute movements toward a seemingly truer justice found in foreclosure courtrooms that are taking place as of late. Are we seeing glimmers of hope from an otherwise wasteland of inaction by the courts against the myriad of institutional fraud and corruption from not only our judicial system but also the financial and real estate sectors? Can we find optimism and perhaps see a shift moving from corporate authoritarianism to more socially democratic results? Is the corporate socialism paradigm ebbing?

In one of the newer cases that are making some waves in how future foreclosure arguments are going to be constructed is the CA Supreme Court decision in the case of Dr. Leevil, LLC vs. Westlake Health Care Center. This December 17, 2018, decision begins to shed light on the timing and legal clarity of who holds power and standing to foreclose?  This basic foreclosure question in contract law is now being challenged in nearly every foreclosure case with valid evidence to show cause exposing just how corrupt, unlawful and unconscionable the results can be of courts continuing to ignore and gloss over this legal point of fact.

CA Supreme Court decision: Dr. Leevil, LLC vs Westlake Health Care Center

The property owners defaulted on a loan secured by a deed of trust on commercial property. The lender instituted foreclosure proceedings, and Dr. Leevil, LLC purchased the property at a trustee’s sale. The day after it purchased the facility, Dr. Leevil served the tenant Westlake Health Care Center with a three-day notice to quit. Dr. Leevil recorded title to the property five days later. When Westlake failed to vacate, Dr. Leevil sued for unlawful detainer.

If the property is foreclosed, and the tenant in possession does not vacate, which is often the case, the new owner of the property (purchaser at trustee’s sale) will likely want to evict the tenant. That requires service of a 3-day written “notice to quit” upon the tenant, followed by an unlawful detainer (eviction) lawsuit.

Westlake opposed the lawsuit, arguing the notice to quit was invalid because it was served before Dr. Leevil recorded title to the property. The trial court disagreed, finding the notice to quit was valid. Westlake agreed to surrender possession and pay damages. The court of appeal affirmed, holding that Code Civ. Proc. §1161a(b)(3) does not require a new owner to record title prior to serving a notice to quit.

In this case, the Supreme court overturned the Court of Appeal ruling stating:

“We conclude that an owner that acquires title to a property
under a power of sale contained in a deed of trust must perfect
title before serving the three-day written notice to quit required
by Code of Civil Procedure section 1161a(b). Accordingly, the
judgment of the Court of Appeal is reversed.”

The main issue was the timing of the notice and perfect of title. The court concluded that it must precede an unlawful detainer action where the action is not brought by a landlord but by a new owner who has acquired title to the property under a power of sale contained in a deed of trust. Dr. Leevil filed the 3 Day Notice, as a necessary code compliance action to follow in the beginning process of a power of sale clause. He filed this the first day after purchasing the property at a Trustee Sale, yet five days before he filed to perfect his title.

In a unanimous decision, the California Supreme Court overturned the Court of Appeal, ruling the purchaser at a foreclosure sale, in this case, Dr. Leevil, must perfect his title and be the legal owner following recordation of a trustee’s deed, then serve the 3-day notice of eviction. The Supreme Court held that perfection of title, which includes recording the trustee’s deed, is necessary before the new owner serves a three-day written notice to quit on the possessor of the property. This means that there must be the proper filings and legal postings of the court prior to an unlawful detainer action. The Court thus reversed the judgment of the Court of Appeal, which had concluded that perfection of title need only precede the filing of the unlawful detainer action and that the new owner may serve the notice to quit immediately after acquiring ownership.

I feel that an arguable defense that one can take from this ruling might be that the foreclosing party to a foreclosure sale must be able to prove that their ability to foreclose.  This ruling should show a more stringent find for standing before a party can begin the foreclosure proceedings in a power of sale clause.  The possible prima facia evidence of this is only merely assumed in a non-judicial foreclosure proceeding.  This is due to the fact that there is no independent party between the lender and the borrower to keep this type of thing from getting out of hand.  Despite that, the CA Supreme Court ruled in 1978 that this is to be the case.  There is no independent trustee in a deed of trust, and there has not been since Jan.1, 1998.  Thus, creating the fabrication of documents and filing forged or fraudulent paperwork.  The same levity to the perfected title must be applied to a foreclosure case as to an unlawful detainer as the same depth of damages could occur. This could have some very large implications in the cases to come.

With the millions of cases of fraud, forgery, robosigning or other means of fabrication of documents that have been uncovered, and continue to be largely ignored by the courts, there might be some light at the end of the proverbial rabbit hole, or rather a tunnel.  Perhaps we are finally whittling away at the necessity by the courts to actually follow the rules of contract law.

Through more definitive case law such as this, we will now begin to see arguments to further refine that definition and how it might change the foreclosure process. If it is now a precedent that the perfection of the title is required to file an unlawful detainer action, will it now be an argument that perfection of the title is to be required before the property can be auctioned at a Trustee sale through the power of sale clause? if so, this ruling could have major implications in the foreclosure litigation world.

As a nationally certified Bloomberg Forensic Loan Securitization Auditor, I have found fraud in every single client’s documents.  Whether it is through an audit completed by a third party which I reviewed and analyzed or one that my office completed.  The results of illegalities, improprieties, fraud and/or forgery are quite staggering.  Despite this, courts across the country still to this day rarely rule for the foreclosing party the need to present the original title prior to the ability to foreclose.  The courts are fully aware that the deeds of trust and mortgage notes have been shredded making the contract void.

I am hopeful that this case will bring a breath of fresh air to the arguments of standing and the need to further support this claim in the future.   

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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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A CALL TO ACTION

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This is a call to action.  I sit here writing as I approach the completion of my “tell all” book about my personal experience of the illegal foreclosure of my home and subsequent lawsuit against Wells Fargo Bank for Fraud. The book has been a very difficult project to undertake, just as the lawsuit was, since I had to litigate my case personally. It’s been no easy task to take on one of the largest corporations in the United States, and I also found it daunting to write a book exposing the truth in a way that everyone is able to understand so that actions could be taken in order to create change to our broken systems. It would have been a lot easier to complete my book if the court had not silenced my case files.

My goal through all of this has been to expose the evidence I found which shows that EVERY deed of trust is based on fraud. This is because the banks know that the trustee is a strawman and hold no power in the deed of trust agreement to protect the borrower’s title from any wrongdoing from the banks, yet they fail to inform the borrower of this information and give the borrower a deed of trust agreement anyway. Therefore, there is never a “meeting of the minds” in the contract negotiations. The banks know this information because it was their lobbyists who constructed Senate Bill 1638, which was signed into law in 1996, by then CA Governor Pete Wilson. This law amended CA Civil Code 2934a, which is an integral part of the Power of Sale clause that pertains to a deed of trust agreement which dictates the rules of the non-judicial foreclosure procedure.

A non-judicial foreclosure procedure is used in a state using a deed of trust agreement. This procedure was instituted for use in order to alleviate any undo burdens against the court system by overloading the them with “frivolous foreclosure lawsuits”. In 1978, the CA Supreme Court issued a ruling in the Garfield 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. There is a presumption of correctness to papers being filed by the trustee in a non-judicial foreclosure procedure because the trustee is given the legitimacy of being the court as the trustee is to be independent in their oversight of the foreclosure process. There are 35 states in the United States that allow the use deed of trust agreements. All of the other states, which use standard mortgage agreements, are attempting to go through the transition of allowing the use of deeds of trust in real estate transactions. Let this sink in.

Since there was never a “meeting of the minds”, according to contract law and the Statute of Frauds, which is still valid law and dates back to the year 1677, then the contract is therefore based on fraud. Fraud in the inducement, fraud in the misrepresentation of facts, and much more. The fact that every deed of trust is based on a fraud legally means that every deed of trust is VOID. The fact that the contract is then VOID means that no borrower needs to pay back the funds to the lending party. The lending party should not have tried to use fraud in order to coerce the borrower into signing the legal documents. Due to their choice of using a fraudulent document in order to create a debt, they lose. The fact that no borrower needs to repay a fraudulent loan is not something that the banking industry wanted to have out into the public consciousness. If the fraudulent deed of trust was used as the instrument in the transaction in order to create the debt against the borrower who has paid any monthly payments to the lender for that fraudulent contract, then the borrower is due to have those payments returned to the borrower that were made to the financial institution who fraudulently collected on a fraudulent debt. Let this sink in. How long have you been making your payments, and how much would that add up to? Plus penalties…

Therefore the banks use every means available, including corrupting our judicial system by paying off and or putting pressure on those participants which might include; clerks of the court, bailiffs, witnesses, opposing counsel, court reporters, judges and district attorneys, the government, etc. I also wanted people to learn of the corruption in the legal system. The corruption I experienced by the court in my legal case, which is detailed in my book, is just one case out of the millions of illegal foreclosures across the country.

The above law, Senate Bill 1638, became effective as of January 1998. This allowed the banks to take a borrower’s note and title and use it as they see fit for their own profit without informing the borrower of that fact. This is another basis for the fact that there is not a meeting of the minds. The banks are able to profit from a borrower’s note by manipulating it on Wall Street and not having to give the borrower any percentage of profits from those investments. The borrower was never given the opportunity to profit in these investments which used the borrower’s title because the borrower was never given the information that the bank was going to be manipulating the title for profit. Therefore, the bank defrauded the borrower again through their misrepresentation of facts. You’ve heard of some of these types of investment vehicle at this point called Mortgage Backed Securities or Collateralized Debt Obligations, etc. These did not exist prior to the year 2000.

You see, in 1999, President Bill Clinton signed the Gramm-Leach-Bliley Act into law, therein repealing four key provisions of the Glass-Steagall Act. This Act is officially named the U.S. Banking Act of 1933, signed by President Franklin Roosevelt. These provisions were instituted to create a separation of banking powers of Wall Street and Main Street. In theory, Roosevelt was protecting the public’s assets because the restrictions did not allow Main Stream banks to gamble with their client’s assets in the same way that Wall Street does with their client’s investment portfolios. When President Bill Clinton repealed these provisions it opened the flood gates for Wall Street to begin to manipulate and gamble with Main Street assets such as real estate, car loans, student loans, retirement accounts, savings accounts, etc. It also allowed Wall Street to combine forces with Main Street banks which began the mergers and acquisitions of the banking industry to a consolidation to only a handful of corporations.

This consolidation created the current financial institutions to become what the Department of Justice’s, Eric Holder, called “too big to fail”.

So, what does this mean now?

Sign in and become a member to this blog for more upcoming detailed information. If you have a home in CA or any other state which uses a deed of trust, and you used a deed of trust agreement in any of your real estate transactions, or if you have been foreclosed on from your home, I urge you to contact me further through the contact page herein. Through the upcoming release of my book, there will be information which will instruct the reader how we are be putting together a class action lawsuit, and how the reader can become a part of that action. If you wish to participate in this process I urge you to contact this blog further through the contact page.

 

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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

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