Tag Archives: SB 1638

Dear David,


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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