Tag Archives: standing

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

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.


©2014-2020 Doug Boggs All Rights Reserved



Something interesting this way comes


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



Locus Standi, better known as Standing


Locus standi, better known in modern common legal terms as standing, is the term used for the ability of a party, in a legal dispute, to demonstrate to the presiding court sufficient connection to and harm from the law or action challenged to support that particular party’s participation in the case.

In other words, in a foreclosure procedure, if a bank, financial institution, beneficiary, or a party acting for or on behalf of the beneficiary must be able to prove to the court that they by law have the right to foreclose on the property. This small legal issue has become tantamount in today’s foreclosure litigation.

First and foremost in the court of law in the United States the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/she/it is or will “imminently” be harmed by the law. Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. To have a court declare a law unconstitutional, there must be a valid reason for the lawsuit. The party suing must have something to lose in order to sue unless it has automatic standing by action of law.

The Supreme Court has stated, “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”

There are a number of requirements that a plaintiff must establish to have standing before a federal court. Some are based on the case or controversy requirement of the judicial power of Article Three of the United States Constitution, § 2, cl.1. As stated there, “The Judicial Power shall extend to all Cases . . .[and] to Controversies . . .” The requirement that a plaintiff have standing to sue is a limit on the role of the judiciary and the law of Article III standing is built on the idea of separation of powers.Federal courts may exercise power only “in the last resort, and as a necessity”.

The American doctrine of standing is assumed as having begun with the case of [Frothingham v Mellon (1923)]. This case became consolidated and was litigated at the United States Supreme Court under [Massachusetts v. Mellon, 262 U.S.447 (1923)]. However, legal standing truly rests its first prudential origins in [Fairchild v Hughes, (1922)], which was authored by Justice Brandeis.In Fairchild, a citizen sued the Secretary of State and the Attorney General to challenge the procedures by which the Nineteenth Amendment was ratified. Prior to it, the doctrine was that all persons had a right to pursue a private prosecution of a public right.Since then the doctrine has been embedded in judicial rules and some statutes.

In 2011, in Bond v United States, the U.S. Supreme Court held that a criminal defendant charged with violating a federal statute does have standing to challenge the constitutionality of that statute under the Tenth Amendment.

There are three causes that the law recognized for standing.

There are three standing requirements:

  1. Injury-in-fact:The plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent (that is, neither conjectural nor hypothetical; not abstract).The injury can be either economic, non-economic, or both. The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified. This is called the “something to lose” doctrine, in which the party has standing because they will be directly harmed by the conditions for which they are asking the court for relief.
  1. Causation:There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. The party is not directly harmed by the conditions by which they are petitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation, and the continued existence of the harm may affect others who might not be able to ask a court for relief. In the United States, this is the grounds for asking for a law to be struck down as violating the First Amendment, because while the plaintiff might not be directly affected, the law might so adversely affect others that one might never know what was not done or created by those who fear they would become subject to the law – the so-called “chilling effects” doctrine.
  2. Redressability:It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury. The party is granted automatic standing by act of law. Under some environmental laws in the United States, a party may sue someone causing pollution to certain waterways without a federal permit, even if the party suing is not harmed by the pollution being generated. The law allows them to receive attorney’s fees if they substantially prevail in the action. In some U.S. states, a person who believes a book, film or other work of art is obscene may sue in their own name to have the work banned directly without having to ask a District Attorney to do so.

The chilling effects, in a legal context, is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. The right that is most often described as being suppressed by a chilling effect is the US constitutional right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is called “libel chill”. A lawsuit initiated specifically for the purpose of creating a chilling effect may be called a Strategic Lawsuit Against Public Participation, or more commonly, a “SLAPP suit“.

“Chilling” in this context normally implies an undesirable slowing. Outside the legal context in common usage; any coercion or threat of coercion (or other unpleasantries) can have a chilling effect on a group of people regarding a specific behavior, and often can be statistically measured or be plainly observed. For example, the news headline “Flood insurance [price] spikes have chilling effect on some home sales,” and the abstract title of a two‐part survey of 160 college students involved in dating relationships: “The chilling effect of aggressive potential on the expression of complaints in intimate relationships.”

As a certified Forensic Loan Securitization Auditor, I have come to find that standing can be the first motion brought against a party in a foreclosure litigation or an Unlawful Detainer action. I have reviewed loans from across the United States and find that in nearly all of the foreclosure actions the party acting against the homeowner has no legal claim against the property. This is not to say that the courts will automatically rule in your favor on this issue, as there is corruption at all levels of the judicial system, however, now the proof for this is fairly easy to find.

State law on standing differs substantially from federal law and varies considerably from state to state. More recently, on December 29, 2009, the California Court Of Appeal for the Sixth District ruled that California Code of Civil Procedure Section 367 cannot be read as imposing a federal-style standing doctrine on California’s code pleading system of civil procedure. In California, the fundamental inquiry is always whether the plaintiff has sufficiently pleaded a cause of action, not whether the plaintiff has some entitlement to judicial action separate from proof of the substantive merits of the claim advanced.The court acknowledged that the word “standing” is often sloppily used to refer to what is really jus tertii, and held that jus tertiiin state law is not the same thing as the federal standing doctrine.

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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