Tag Archives: deed of trust

Senate Bill No. 306 Chapter 474

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Senate Bill No. 306 Chapter 474 changes NOTHING to what I have been talking about for years now. There are numerous sugar coating measures that have created since I sued Wells Fargo Bank on the issue of a fraudulent Trustee, however nothing has changed in the legislation level therein making the state complicit to the fraud, still. Ever since SB 1638 (1996) was signed into law and implemented beginning on Jan. 1, 1998 every deed of trust in CA is void and nearly every foreclosure is fraudulent due to the carelessness or human oversight to the rule of law. In 1978, the CA Supreme Court ruled that the trustee must be “arms length” or independent in a deed of trust contract agreement. However, since the passing of SB 1638 this is not the case. Since then, legislators have brushed over with broad strokes to hide the issue or simply are ignorant to the laws dealing with contracts and foreclosure.

I am beginning to work with the team of one of CA Assembly persons to start the process of writing new legislation that will turn the ruling of the State Supreme Court into a reality again. I will be keeping you abreast of this situation as it plays itself out, but for now know that your foreclosure is still illegal and based completely on fraud.

Here is the new legislation to amend parts of the Power of Sale clause in a deed of trust contract in CA Civil Code 2934a.

Senate Bill No. 306 CHAPTER 474
An act to amend Section 2934a of the Civil Code, relating to mortgages. 
[ Approved by Governor  October 02, 2019. Filed with Secretary of State  October 02, 2019. ]

LEGISLATIVE COUNSEL’S DIGEST

SB 306, Morrell. Mortgages and deeds of trust: trustee substitutions.Existing law regulates the terms and conditions of mortgages and deeds of trust. Existing law authorizes a beneficiary of a deed of trust to substitute a new trustee for the existing trustee in accordance with certain statutory requirements, and that substitution is not effective in certain cases unless it is signed by the respective parties under penalty of perjury. Under existing law, a trustee named in a recorded substitution of trustee is deemed to be authorized to act in this capacity under the mortgage or deed of trust for all purposes from the date the substitution is executed by the mortgagee, beneficiaries, or by their authorized agents.Existing law provides specified methods by which a trustee may resign, including as provided in the trust instrument or, in the case of a revocable trust, with the consent of the person holding the power to revoke the trust.This bill would authorize a trustee to resign or refuse to accept appointment as trustee at that trustee’s own election without the consent of the beneficiary or by their authorized agents, under a trust deed upon real property or an estate for years. The bill would require the trustee to give prompt written notice of resignation or refusal to accept appointment to the beneficiary or their authorized agents by mailing, as specified, an envelope containing a notice of resignation of trustee by recording the notice of resignation in each county in which the substitution of trustee under which the trustee was appointed is recorded, and by attaching to the recorded notice an affidavit stating that notice has been mailed to all beneficiaries and their authorized agents, as specified. The bill would make the resignation or refusal to accept appointment of that trustee effective upon the recording of the notice of resignation in each county in which the substitution of trustee under which the trustee was appointed is recorded. The bill would also require the trustee and any successor in interest to that trustee to retain and preserve every writing relating to the trust deed or estate for years under which the trustee was appointed for at least 5 years after a notice of resignation is mailed and recorded. The bill would specify that the resignation of the trustee does not affect the validity of the mortgage or deed of trust, except that no action required to be performed by the trustee under those provisions or under the mortgage or deed of trust may be taken until a substituted trustee is appointed. The bill would make related conforming and nonsubstantive changes to those provisions.By expanding the crime of perjury, the bill would impose a state-mandated local program.The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that no reimbursement is required by this act for a specified reason.

DIGEST KEY

Vote: majority   Appropriation: no   Fiscal Committee: yes   Local Program: yes  


BILL TEXT

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

 Section 2934a of the Civil Code is amended to read:

2934a.

 (a) (1) The trustee under a trust deed upon real property or an estate for years given to secure an obligation to pay money and conferring no other duties upon the trustee than those which are incidental to the exercise of the power of sale therein conferred, may be substituted by the recording in the county in which the property is located of a substitution executed and acknowledged by either of the following:(A) All of the beneficiaries under the trust deed, or their successors in interest, and the substitution shall be effective notwithstanding any contrary provision in any trust deed executed on or after January 1, 1968.(B) The holders of more than 50 percent 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, exclusive of any notes or interests of a licensed real estate broker that is the issuer or servicer of the notes or interests or of any affiliate of that licensed real estate broker.(2) A substitution executed pursuant to subparagraph (B) of paragraph (1) is not effective unless all the parties signing the substitution sign, under penalty of perjury, a separate written document stating the following:(A) The substitution has been signed pursuant to subparagraph (B) of paragraph (1).(B) None of the undersigned is a licensed real estate broker or an affiliate of the broker that is the issuer or servicer of the obligation secured by the deed of trust.(C) The undersigned together hold more than 50 percent 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.(D) Notice of the substitution was sent by certified mail, postage prepaid, with return receipt requested to each holder of an interest in the obligation secured by the deed of trust who has not joined in the execution of the substitution or the separate document.The separate document shall be attached to the substitution and recorded in the office of the county recorder of each county in which the real property described in the deed of trust is located. Once the document is recorded, it shall constitute conclusive evidence of compliance with the requirements of this paragraph in favor of substituted trustees acting pursuant to this section, subsequent assignees of the obligation secured by the deed of trust and subsequent bona fide purchasers or encumbrancers for value of the real property described therein.(3) For purposes of this section, “affiliate of the licensed real estate broker” includes any person as defined in Section 25013 of the Corporations Code that is controlled by, or is under common control with, or who controls, a licensed real estate broker. “Control” means the possession, direct or indirect, of the power to direct or cause the direction of management and policies.(4) The substitution shall contain the date of recordation of the trust deed, the name of the trustor, the book and page or instrument number where the trust deed is recorded, and the name of the new trustee. From the time the substitution is filed for record, the new trustee shall succeed to all the powers, duties, authority, and title granted and delegated to the trustee named in the deed of trust. A substitution may be accomplished, with respect to multiple deeds of trust that are recorded in the same county in which the substitution is being recorded and that all have the same trustee and beneficiary or beneficiaries, by recording a single document, complying with the requirements of this section, substituting trustees for all those deeds of trust.(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 mail notice of the substitution before or concurrently with the recording thereof, in the manner provided in Section 2924b, to all persons to whom a copy of the notice of default would be required to be mailed by Section 2924b. An affidavit shall be attached to the substitution that notice has been given to those persons, as required by this subdivision.(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 mail a copy of the substitution, before, or concurrently with, the recording thereof, as provided in Section 2924b, to the trustee then of record and to all persons to whom a copy of the notice of default would be required to be mailed by Section 2924b. An affidavit shall be attached to the substitution that notice has been given to those persons, as required by this subdivision.(d)  (1) A trustee named in a recorded 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 mortgagee, beneficiaries, or by their authorized agents. A trustee under a recorded substitution is not required to accept the substitution, and may either resign or refuse to accept appointment as trustee pursuant to this subdivision.(2) (A) A trustee named in a recorded substitution of trustee may resign or refuse to accept appointment as trustee at that trustee’s own election without the consent of the beneficiary or beneficiaries or their authorized agents. The trustee shall give prompt written notice of that resignation or refusal to accept appointment as trustee to the beneficiary or beneficiaries or their authorized agents by doing both of the following:(i) Depositing or causing to be deposited in the United States mail an envelope containing a notice of resignation of trustee, sent by registered or certified mail with postage prepaid, to all beneficiaries or their authorized agents at the address shown on the last-recorded substitution of trustee for that real property or estate for years in that county.(ii) Recording the notice of resignation of trustee, mailed in the manner described in clause (i), in each county in which the substitution of trustee under which the trustee was appointed is recorded. An affidavit stating that notice has been mailed to all beneficiaries and their authorized agents in the manner provided in clause (i) shall be attached to the recorded notice of resignation of trustee.(B) The resignation of the trustee or refusal to accept appointment as trustee pursuant to this subdivision shall become effective upon the recording of the notice of resignation of trustee in each county in which the substitution of trustee under which the trustee was appointed is recorded.(C) The resignation of the trustee or refusal to accept appointment as trustee pursuant to this subdivision does not affect the validity of the mortgage or deed of trust, except that no action required to be performed by the trustee under this chapter or under the mortgage or deed of trust may be taken until a substituted trustee is appointed pursuant to this section. If a trustee is not designated in the deed of trust, or upon the resignation, incapacity, disability, absence or death of the trustee, or the election of the beneficiary or beneficiaries to replace the trustee, the beneficiary or beneficiaries or their authorized agents shall appoint a trustee or a successor trustee.(D) A notice of resignation of trustee mailed and recorded pursuant to this paragraph shall set forth the intention of the trustee to resign or refuse appointment as trustee and the recording date and instrument number of the recorded substitution of trustee under which the trustee was appointed.(E) A notice of resignation of trustee mailed and recorded pursuant to this paragraph shall contain an address at which the trustee and any successor in interest will be available for service of process for at least five years after the date that the notice of resignation is recorded.(F) For at least five years after a notice of resignation of trustee is mailed and recorded pursuant to this paragraph, the trustee and any successor in interest to that trustee shall retain and preserve every writing, as that term is defined in Section 250 of the Evidence Code, relating to the trust deed or estate for years under which the trustee was appointed.(3) For purposes of this section, paragraph (2) sets forth the exclusive procedure for a trustee to either resign or refuse to accept appointment as trustee.(4) Once recorded, the substitution shall constitute conclusive evidence of the authority of the substituted trustee or their authorized agents to act pursuant to this section, unless prompt written notice of resignation of trustee has been given in accordance with the procedures set forth in paragraph (2).(e)  Notwithstanding any provision of this section or any provision in any deed of trust, unless a new notice of sale containing the name, street address, and telephone number of the substituted trustee is given pursuant to Section 2924f after execution of the substitution, any sale conducted by the substituted trustee shall be void.

Today’s law as Amended – SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.


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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!

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©2014-2020 Doug Boggs All Rights Reserved

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Is Fraud a Silent Sword?

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By Doug Boggs

Is Fraud a silent sword? The Dausi was a poem of the history of the Soninke people and the rise and fall of their eternal city. African legend says, the city of Wagadu, was protected by a great serpent named Bida. Every year Bida rained down gold on the city of Wagadu in exchange he required sacrifice of a young woman chosen by lottery. This agreement was how the kings of Ghana attained their wealth and power. This custom continued for many generations until one day fate had chosen the beautiful Sai Tu Bara to become a wife and sacrifice to Bida. Her fiancé Mamadi, a warrior whose praise name was Sefe Dekote (the ‘silent sword’) due to his taciturn nature and relentlessness towards his goals discovered that Sia was chosen to be sacrificed. Determined to save her life, Mamadi killed the serpent thus making him an outcast. Soon after the death of the serpent Bida, the city of Wagadu was destroyed and the Soninke people scattered. 

Lawyers don’t ask the right questions in order to get the answers that could serve the people most in need. I have found that lawyers ask questions to what they already know the answers to. This practice might help them formulate a response to a specific line of questioning in order to fine tune their making their point. However, this kind of practice will never shed light on any new ideas or evidence.

I have recently come across an article online written by a lawyer, named Abe Salen, of The Wolf Firm. It was posted on February 1, 2018, on a financial services website USFN. The Wolf Firm is a 30 year old legal corporation, based out of Irvine, CA, that claims to do business in California, Washington, Oregon and Idaho. Their website states that they are attorneys to the financial services industry. The byline claims that The Wolf Firm is a member of an organization named, USFN (American Mortgage Banking Attorney’s). USFN, is an organization filled with attorneys from the mortgage banking business. They were recently recruiting new members at the 2019 MBA Servicing Conference. It would be fair to say that they are not attorneys that I would hire or for any homeowner needing assistance with their home foreclosure.

The article begins with “Fraud has consistently been a silent sword used by borrowers and their agents to stall the foreclosure process and keep the non-paying borrower in the property.” This is far from the truth. Fraud is not a silent sword used to stall a foreclosure. Fraud is a cause of action against a company who is illegally foreclosing on a homeowner. Their quip of “…keep the non-paying borrower in the property” is a bit presumptuous. I say that because Wells Fargo Bank began their foreclosure proceedings on me while I was current on my mortgage. Yes, you heard that right. I am also familiar with countless people who have been foreclosed on throughout the country that paid cash for their home and never had a mortgage to which they were “non paying” to. So, that begs the question of just what the word fraud means in a foreclosure procedure.

The next paragraph of the article continues with “Over the last 18 months, a grand scheme has been uncovered by both federal and state law enforcement in which the borrower is generally a non-participant. Rather, the perpetrating entity conducts a public or semi-private search for properties with loans in foreclosure — often properties that have been in foreclosure for some time (several months to multiple years), but with no record of a sale having occurred. The scheme has reached significant levels in California.” This makes the claim that the borrower is generally a non-participant. This is very true to a homeowner with a Deed of Trust attached to their mortgage. In my legal case against Wells Fargo, I showed the court, just how much a homeowner is as a non-participant borrower. I showed the court how the state legislature made a deed of trust in the state of CA void through their passing of SB1638 in 1996, which became law in January 1, 1998. Due to my exposure of that silent sword the courts then silenced my court files and removed them from public view. The fact that a Deed of Trust is void exemplifies just how much a borrower is a non-participant.

“The process is this: once the property is identified, the perpetrating entity begins its fraudulent scheme by recording a bogus assignment. That same day, this entity substitutes in a subsidiary as the foreclosing trustee. Thereafter the “new” trustee immediately (often within 1-3 days) records a Trustee’s Deed Upon Sale, transferring the property to the fraudulent beneficiary. With a recorded transfer in hand, the perpetrating entity sends out private invitations to known REO investors seeking bids for the purchase (at pennies on the dollar) of the subject property. This scheme is “grand” because it encompasses several hundred properties throughout California, with many more suspected — including properties throughout the West Coast and neighboring states, and eastward.” Let’s paraphrase this a little bit: Once the property is identified, means that there is a computer algorithm that spits out information to a law group, such as The Wolf Firm. This information will show properties that are in some part of the foreclosure process. So, as we have already learned, this means that the home is in some part of the foreclosure process, but it does NOT specifically mean that the homeowner has not paid their mortgage. The article goes on to state that a perpetrating entity begins a fraudulent scheme by recording a bogus assignment. Through that bogus assignment, this perpetrating entity substitutes themselves as a substituted trustee in a deed of trust. This action makes this perpetrating entity a fraudulent trustee. Only through the passing of SB1638 can this action occur.

Let’s look into this further. A Non-Judicial foreclosure was designed to take the process of foreclosure out of the encumbered court system. In order to do this, an independent third party, the Trustee, was added to the transaction in order to act as the independence of the court system that was now usurped. The CA Supreme Court ruled in a 1978 landmark ruling that the trustee is to be an independent party in a deed of trust. The trustee is to be held at arms length to the other parties within the transaction so as to be impartial to the needs of the transaction and the non-judicial foreclosure procedure. In a non-judicial foreclosure it is the trustee that acts as and on behalf of the court. The trustee is to make sure that the borrower, as well as the lender, all abide within the rules of the Power of Sale clause, CA Civil Code 2924, in a non-judicial foreclosure procedure. Through the independence of the trustee the courts are then bypassed and considered less encumbered by having less foreclosures on the court docket.

So, The Wolf Firm, freely admits that the system allows for a perpetrating entity to make itself become the substituted trustee. This new fraudulent substitute trustee then files fraudulent documents to the court recording a Trustee Deed Upon Sale. This fraudulent paperwork created the transferring of the property to a fraudulent beneficiary. If all of this fraudulent paperwork can be filed to the court, it is only safe to assume that other fraudulent paperwork can be filed to the court. Such as documents that the borrower has defaulted on a loan when in fact they did not. And in numerous cases there was never a loan against the property for a borrower to default from. However, these documents get filed. Due to this process, I have also seen documents to which one or more of the borrowers listed in the foreclosure procedure signed documents when they were dead and buried.

If the Trustee is independent in the transaction, how could all of this fraud be able to take place? It is their job specifically to make sure that does not happen, as they are acting as the court. That certainly shows a breakdown of the non-judicial foreclosure process. This stems from SB1638 which allowed the beneficiary to name a new trustee at will. So, if the acting trustee would not allow a bank or legal beneficiary to file fraudulent documents or perhaps slide by some of the rule of CA Civil Code 2924 in the Power of Sale clause in order to expedite a fraudulent foreclosure proceeding, that bank or legal beneficiary could substitute a new trustee into the transaction that will act on the beneficiary’s behalf. It is for this reason that the Power of Sale clause becomes moot and therefore the deed of trust becomes void. If the ruling of the legislature no longer adheres to the ruling of the CA Supreme Court and the need for an independent trustee is deemed necessary, than the entire non-judicial foreclosure system is fraudulent and all deeds of trust are fraudulent and therefore void.

“The problems are clear. With the fraudulent recordings occurring so quickly, it may be difficult for servicers and trustees to become aware of the fraudulent cloud on title until a bona fide purchaser is in the mix. Several title companies are now aware of this particular scheme. Further, at least one county has filed criminal charges against the perpetrating entities, with several more jurisdictions conducting in-depth investigations. The FBI is also investigating, and this scheme has gained the attention of numerous media outlets throughout the country.” The Wolf Firm skirts around the real issue here as they discuss the problems being clear. It isn’t that fraudulent recordings occur so quickly, it is that they are allowed to occur at all. It is easy for them to occur when there is no independent trustee in order to oversee the fraudulent documents being filed to the court. The Wolf Firm author discusses the difficulty for the servicer and trustees to become aware of the fraudulent cloud on the title. The trustee is never NOT aware, as it is the acting perpetrating entity which has now clouded the title with fraudulent papers.

“This situation provides a serious reminder that servicers/trustees must stay vigilant in their due diligence as they begin the foreclosure process, and ensure that the title searches remain current throughout the process. Updating title reports at regular intervals during the process is recommended, especially when files are placed on hold, in order to confirm that title remains unaffected — not just from borrower conduct but also from possible third-party perpetrators.” How is it that a trustee is able to remain vigilant when it was put in place by the beneficiary in order to do its bidding. The trustee is in place to make sure that no matter what, the beneficiary is able to foreclose on any home, any time, any where, despite anything. PERIOD. To state that they must stay vigilant to ensure that the title searches remain current is simply a joke. And this joke was authored by The Wolf Firm who is a law firm which acts on behalf of financial services companies. So, they know full well of the lack of independence of the trustee in a deed of trust transaction. They are fully aware and have freely admitted that a trustee does not protect the deed of trust for the borrower whatsoever.

Who are the third party perpetrators that affect the title? Law firms such as The Wolf Firm; Anglin Flewellen Rasmussen Campbell & Trytten LLP, and many other legal firms acting on behalf of financial institutions. These firms know full well that there is no independent trustee and therefore fraudulent documents filed by the trustee are on behalf of the beneficiary, to which these legal firms represent on a daily basis. There are time that these firms take on the role of the substituted trustee or as the legal team for the beneficiary. Usually the beneficiary has a subsidiary firm which is signed on as trustee at the onset of the deed of trust transaction.

The article discusses how a perpetrating entity can become a fraudulent substituted trustee. The article does not discuss how a fraudulent trustee is able to circumvent the ruling of the CA Supreme Court for the independence of the trustee in the Power of Sale clause. The fact that there is no independence of a trustee in a deed of trust transaction based on the fact that a bank or beneficiary can substituted a new trustee at will, simply means that the bank or beneficiary has power over the trustee. So, the trustee ergo works for the beneficiary. Ergo the trustee is not independent. Since the lender does not stipulate this fact to the borrower during the negotiations of the contract and the borrower is never privy to the fact that the trustee is working on the beneficiary’s behalf and has no vested interest in protecting the borrower from any wrongdoing from the beneficiary or servicer, there is no real meeting of the minds in the deed of trust transaction. In contract law, one of the single most used arguments against the validity of the contract is the fact that there was not a meeting of the minds. If there is not a meeting of the minds in a contract, there is no contract. If one party leaves out pertinent information to the contract that is crucial to the decision making of the other party in the contract it is construed as deceptive fraud.

The original article, coming from a law firm that litigates for the financial industry, it is certainly deceptive.

Is fraud a silent sword? Is Sefe Dekote the tool for homeowners to battle against Bida, the big bad banks and law firms acting fraudulently and illegally foreclosing on people throughout the United States? Sharpen your blades foreclosure warriors.

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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.

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Does this sound about right….

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Does this sound about right….

This following is one of the most common stories throughout the United States that you will hear when discussing someone's personal foreclosure story .

“… all of this started with the servicer telling us to stop making payments in order to make sure we would be in a better position for a modification.  They couldn’t assist us if we were current on our mortgage.  But, we were current on our mortgage, however, were discussing our personal financial issues that we saw coming up on the horizon for us, and that concerned us.  We were trying to be proactive in our approach and we thought it prudent and were trying to make arrangements.”  The servicer tells a homeowner to get behind in their payment if they wish to obtain any government sponsored relief.  A homeowner goes behind, as to the advice of the HAMP program rules and thinds themselve in default.  They were current on their mortgage and were trying to help a situation like this happen.  Being proactive.

A judicial foreclosure or a non-judicial foreclosure begins.

The Servicer immediately cashes a credit default swap for some percentage of the mortgage balance and has some split with the investor.  Then they send 10 or 15 sets of mortgage modification applications to the homeowner and collect payments of $300 ea under their HAMP servicing agreement with the fed.  Then they offer a trial modification to the homeowner and promise that it will convert to a permanent mod if the homeowner makes all of their payments on time.  The bank loses the paperwork 3 or 4 times and charges the fed each time they process a new application. Then, charges the fed again for sending 3 new applications to the homeowner over the next three to six months.  Less than 3% of the time is the homeowner ever approved for a temporary modification.  Less than 1%, in some studies, ever start paying the narrowly reduced payments of the HAMP or TARP program while the servicer dual tracks the homeowner.  Soon, as many of the stories do, then the servicer hires LPS, the parent company to LSI Title, to file some fraudulent assignments in the name of the deceased bank the servicer bought the servicing rights from (Countrywide, World Savings, Indymac, you get the idea).

The servicer conveviently rarely sends and subsequently shoplifts the temporary payments the homeowner is making for the modification program.  If the homeowner were to know and if things were legit, they might think that the payments are going to the MBS towards P&I as agreed in the contract.  Though, they aren’t.  An illegal financial institution is keeping the payments.  The MBS has no idea that any payments are being withheld, or that there is anything wrong with any payments at all.  You see, as the homeowner gets further behind their own MBS investor has no idea. This is due to the fact that the government has guaranteed a return on their investment.  In other words, the government is covering the spread if a homeowner fails.  But, the government is the taxpayer.

The servicer gets paid a fee by the fed for servicing the temporary loan modification under their HAMP servicing agreement. The servicer denies the modification and forecloses on the property and collects a fee from the investor for servicing the foreclosure and collects an 80% FDIC loss share payment from the FDIC which it splits with the investor.  The FDIC is the taxpayer.

The house is sold, and as in our case, to a company that buys foreclosure properties in bulk for less than the retail value.  This is systemic and is done in a very large scale in order to manipulate the real estate market.  The investor recovers the REO value less, the bank’s REO sale fee.  The company that buys the foreclosed property, studies have found, work with the servicers in order to manipulate the market as a whole.  The Non-Judicial foreclosure process is simply a fast food style of law where the Unlawful Detainers get stream lined and rubber stamped by the Judges.  In FL, it has become common knowledge that the Judges are making a profit on each property in the process as a percentage to look away.

The only reason any of this could take place is due to the fact that the Legislation changed the Servicing powers and the ability to transfer the Trusteeship of the Deed of Trust.  The Registrars and everyone else mistook this legislation to mean that the Trustees can be reassigned by the Beneficiary or Servicer and possess the rights of the primary Trustee named on the Deed of Trust that was originally signed by all parties.

This is e illegal government rubber-stamped dismantling of the middle class. How can you ever stop a ruling class from doing something that is this lucrative???

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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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©2014-2018 Doug Boggs All Rights Reserved

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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.

 

* * * * * * * * * *

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!

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©2014-2017 Doug Boggs All Rights Reserved

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Why the judge silenced my court documents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

* * * * * * * * * *

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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