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The Trouble with MERS

1 07 2010

As a homeowner begins research into the lending and foreclosure crisis, there will be many unfamiliar terms, names and companies that come to their attention. Chief among these will be MERS.

MERS is the acronym for Mortgage Electronic Registration Systems. It is a national electronic registration and tracking system that tracks the beneficial ownership interests and servicing rights in mortgage loans. The MERS website says:

“MERS is an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked. Created by the real estate finance industry, MERS eliminates the need to prepare and record assignments when trading residential and commercial mortgage loans. “

In simple language, MERS is an on-line computer software program for tracking ownership.

MERS was conceived in the early 1990’s by numerous lenders and other entities. Chief among the entities were Bank of America, , Fannie Mae, Freddie Mac, and a host of other such entities. The stated purpose was that the creation of MERS would lead to “consumers paying less” for mortgage loans. Obviously, that did not happen.

This article will attempt to explain MERS in very general detail. It will cover a few issues related to MERS and foreclosure, in order to introduce the reader to the issue of MERS. It is not meant to be a complete discussion of MERS, nor of the legal complexities regarding the arguments for and against MERS. For a more in depth reading of MERS and findings coming out of courts, it is recommended that the reader look at Hawkins, Case No. BK-S-07-13593-LBR (Bankr. Nev. 3/31/2009) (Bankr. Nev., 2009) . It gives a good reading of the issues related to MERS, at least for that particular case. Though in Nevada, it is relevant for California.

(Please note. I am not an attorney and am not giving legal advice. I am just reporting arguments being made against MERS, and also certain case law and applicable statutes in California.

The MERS Process

Traditionally, when a loan was executed, the beneficiary of the loan on the Deed of Trust was the lender. Once the loan was funded, the Deed of Trust and the Note would be recorded with the local County Recorder’s office. The recording of the Deed and the Note created a Public Record of the transaction. All future Assignments of the Note and Deed of Trust were expected to be recorded as ownership changes occurred. The recording of the Assignments created a “Perfected Chain of Title” of ownership of the Note and the Deed of Trust. This allowed interested or affected parties to be able to view the lien holders and if necessary, be able to contact the parties. The recording of the document also set the “priority” of the lien. The priority of the lien would be dependent upon the date that the recording took place. For example, a lien recorded on Jan 1, 2007 for $20,000 would be the first mortgage, and a lien recorded on Jan 2, 2007, for $1,500,000 would be a second mortgage, even though it was a higher amount.

Recordings of the document also determined who had the “beneficial interest” in the Note. An interested party simple looked at the Assignments, and knew who held the Note and who was the legal party of beneficial interest.

(For traditional lending prior to Securitization, the original Deed recording was usually the only recorded document in the Chain of Title. That is because banks kept the loans, and did not sell the loan, hence, only the original recording being present in the banks name.

The advent of Securitization, especially through “Private Investors” and not Fannie Mae or Freddie Mac, involved an entirely new process in mortgage lending. With Securitization, the Notes and Deeds were sold once, twice, three times or more. Using the traditional model would involve recording new Assignments of the Deed and Note as each transfer of the Note or Deed of Trust occurred. Obviously, this required time and money for each recording.

(The selling or transferring of the Note is not to be confused with the selling of Servicing Rights, which is simply the right to collect payments on the Note, and keep a small portion of the payment for Servicing Fees. Usually, when a homeowner states that their loan was sold, they are referring to Servicing Rights.)

The creation of MERS changed the process. Instead of the lender being the Beneficiary on the Deed of Trust, MERS was now named as either the “Beneficiary” or the “Nominee for the Beneficiary” on the Deed of Trust. This meant that MERS was simply acting as an Agent for the true beneficiary. The concept was that with MERS assuming this role, there would be no need for Assignments of the Deed of Trust, since MERS would be given the “power of sale” through the Deed of Trust.

Black’s Law Dictionary defines a nominee as “[a] person designated to act in place of another, usually in a very limited way” and as “[a] party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others.” Black’s Law Dictionary 1076 (8th ed. 2004). This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves……..The legal status of a nominee, then, depends on the context of the relationship of the nominee to its principal. Various courts have interpreted the relationship of MERS and the lender as an agency relationship.

The naming of MERS as the Beneficiary meant that certain other procedures had to change. This was a result of the Note actually being made out to the lender, and not to MERS. Before explaining this change, it would be wise to explain the Securitization process.

Securitizing a Loan

Securitizing a loan is the process of selling a loan to Wall Street and private investors. It is a method with many issues to be considered, especially tax issues, which is beyond the purview of this article. The methodology of securitizing a loan generally followed these steps:

· A Wall Street firm would approach other entities about issuing a “Series of Bonds” for sell to investors and would come to an agreement. In other words, the Wall Street firm “pre-sold” the bonds.

· The Wall Street firm would approach a lender and usually offer them a Warehouse Line of Credit. The Warehouse Credit Line would be used to fund the loans. The Warehouse Line would be covered by restrictions resulting from the initial Pooling & Servicing Agreement Guidelines and the Mortgage Loan Purchase Agreement. These documents outlined the procedures for creation of the loans and the administering of the loans prior to, and after, the sale of the loans to Wall Street.

· The Lender, with the guidelines, essentially went out and found “buyers” for the loans, people who fit the general characteristics of the Purchase Agreement,. (Guidelines were very general and most people could qualify.” The Lender would execute the loan and fund it, collecting payments until there were enough loans funded to sell to the Wall Street firm who could then issue the bonds.

· Once the necessary loans were funded, the lender would then sell the loans to the “Sponsor”, usually either a subsidiary of the Wall Street firm, of a specially created Corporation of the lender. At this point, the loans are separated into “tranches” of loans, where they will be eventually turned into bonds.

Next, the loans were “sold” to the “Depositor”. This was a “Special Purpose Vehicle” designed with one purpose in mind. That was to create a “bankruptcy remote vehicle” where the lender or other entities are protected from what might happen to the loans, and/or the loans are “protected” from the lender. The “Depositor” would have once again been created by the Wall Street firm or the Lender.

Then, the “Depositor” places the loans into the Issuing Entity, which is another created entity solely used for the purpose of selling the bonds.

Finally, the bonds would be sold, with a Trustee appointed to ensure that the bondholders received their monthly payments.

As can be seen, each Securitized Loan has had the ownership of the Note transferred two to three times at a minimum, but, no Assignments of Beneficiary are executed under most circumstances. If such an Assignment occurs, it will usually occur after a Notice of Default was filed.

(Note: This is a VERY simplified version of the process, but it gives the general idea. Depending upon the lender, it could change to some degree, especially if Fannie Mae bought the loans. The purpose of such a convoluted process was so that the entities selling the bonds could become a “bankruptcy remote” vehicle, protecting lenders and Wall Street from harm, and also creating a “Tax Favorable” investment entity known as an REIMC. An explanation of this process would be cumbersome at this time.)

New Procedures

As mentioned previously, Securitization and MERS required many changes in established practices. These practices were not and have not been codified, so they are major points of contention today. I will only cover a few important issues which are now being fought out in the courts.

One of the first issues to be addressed was how MERS might foreclose on a property. This was “solved” through an “unusual” practice.

· MERS has only 44 employees. They are all “overhead”, administrative or legal personnel. How could they handle the load of foreclosures, Assignments, etc to be expected of a company with their duties and obligations?

When a lender, title company, foreclosure company or other firm signed up to become a member of MERS, one or more of their people were designated as “Corporate Officers” of MERS and given the title of either Assistant Secretary or Vice President. These personnel were not employed by MERS, nor received income from MERS. They were named “Certify Officers” solely for the purpose of signing foreclosure and other legal documents in the name of MERS. (Apparently, there are some agreements which “authorize” these people to act in an Agency manner for MERS.)

This “solved” the issue of not having enough personnel to conduct necessary actions. It would be the Servicers, Trustees and Title Companies conducting the day-to-day operations needed for MERS to function.

As well, it was thought that this would provide MERS and their “Corporate Officers” with the “legal standing” to foreclose.

However, this brought up another issue that now needed addressing:

* When a Note is transferred, it must be endorsed and signed, in the manner of a person signing his paycheck over to another party. Customary procedure was to endorse it as “Pay to the Order of” and the name of the party taking the Note and then signed by the endorsing party. With a new party holding the Note, there would now need to be an Assignment of the Deed. This could not work if MERS was to be the foreclosing party.

Once a name is placed into the endorsement of the Note, then that person has the beneficial interest in the Note. Any attempt by MERS to foreclose in the MERS name would result in a challenge to the foreclosure since the Note was owned by “ABC” and MERS was the “Beneficiary”. MERS would not have the legal standing to foreclose, since only the “person of interest” would have such authority. So, it was decided that the Note would be endorsed “in blank”, which effectively made the Note a “Bearer Bond”, and anyone holding the Note would have the “legal standing” to enforce the Note under Uniform Commercial Code. This would also suggest to the lenders that Assignments would not be necessary.

MERS has recognized the Note Endorsement problem and on their website, stated that they could be the foreclosing party only if the Note was endorsed in blank. If it was endorsed to another party, then that party would be the foreclosing party.

As a result, most Notes are endorsed in blank, which purportedly allows MERS to be the foreclosing party. However, CA Civil Code 2932.5 has a completely different say in the matter. It requires that the Assignment of the Deed to the Beneficial Interest Holder of the Note.

CA Civil Code 2932.5 – Assignment

Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.

As is readily apparent, the above statute would suggest that Assignment of the Deed to the Note Holder is a requirement for enforcing foreclosure.

The question now becomes as to whether a Note Endorsed in Blank and transferred to different entities as indicated previously does allow for foreclosure. If MERS is the foreclosing authority but has no entitlement to payment of the money, how could they foreclose? This is especially important if the true beneficiary is not known. Why do I raise the question of who the true beneficiary is? Again, from the MERS website……..

* “On MERS loans, MERS will show as the beneficiary of record. Foreclosures should be commenced in the name of MERS. To effectuate this process, MERS has allowed each servicer to choose a select number of its own employees to act as officers for MERS. Through this process, appropriate documents may be executed at the servicer’s site on behalf of MERS by the same servicing employee that signs foreclosure documents for non-MERS loans.

Until the time of sale, the foreclosure is handled in same manner as non-MERS foreclosures. At the time of sale, if the property reverts, the Trustee’s Deed Upon Sale will follow a different procedure. Since MERS acts as nominee for the true beneficiary, it is important that the Trustee’s Deed Upon Sale be made in the name of the true beneficiary and not MERS. Your title company or MERS officer can easily determine the true beneficiary. Title companies have indicated that they will insure subsequent title when these procedures are followed.”

There, you have it. Direct from the MERS website. They admit that they name people to sign documents in the name of MERS. Often, these are Title Company employees or others that have no knowledge of the actual loan and whether it is in default or not.

Even worse, MERS admits that they are not the true beneficiary of the loan. In fact, it is likely that MERS has no knowledge of the true beneficiary of the loan for whom they are representing in an “Agency” relationship. They admit to this when they say “Your title company or MERS officer can easily determine the true beneficiary.

To further reinforce that MERS is not the true beneficiary of the loan, one need only look at the following Nevada Bankruptcy case, Hawkins, Case No. BK-S-07-13593-LBR (Bankr.Nev. 3/31/2009) (Bankr.Nev., 2009) – ”A “beneficiary” is defined as “one designated to benefit from an appointment, disposition, or assignment . . . or to receive something as a result of a legal arrangement or instrument.” BLACK’S LAW DICTIONARY 165 (8th ed. 2004). But it is obvious from the MERS’ “Terms and Conditions” that MERS is not a beneficiary as it has no rights whatsoever to any payments, to any servicing rights, or to any of the properties secured by the loans. To reverse an old adage, if it doesn’t walk like a duck, talk like a duck, and quack like a duck, then it’s not a duck.”

If one accepts the above ruling, which MERS does not agree with, MERS would not have the ability to foreclose on a property for lack of being a true Beneficiary. This leads us back to the MERS as “Nominee for the Beneficiary” and foreclosing as Agent for the Beneficiary. There may be pitfalls with this argument.

When the initial Deed of Trust is made out in the name of MERS as Nominee for the Beneficiary and the Note is made to ABC Lender, there should be no issues with MERS acting as an Agent for ABC Lender. Hawkins even recognizes this as fact.

The issue does arise when the Note transfers possession. Though the Deed of Trust states “beneficiary and/or successors”, the question can arise as to who the successor is, and whether Agency is any longer in effect. MERS makes the argument that the successor Beneficiary is a MERS member and therefore Agency is still effective. But does this argument hold up under scrutiny?

The original Note Holder, AB Lender, no longer holds the note, nor is entitled to payment.

Furthermore, the Note is endorsed in blank, and no Assignment of the Deed has been made to any other entity, so who is the true beneficiary and Note Holder?

It is now the contention of many that the Agency/Nominee relationship has been completely terminated between MERS and the original lender, so MERS has no authority to foreclose, or even to Assign the Deed.

In Vargas, 396 B.R. 511, 517 (Bankr. C.D. Cal. 2008) (”[I]f FHM has transferred the note, MERS is no longer an authorized agent of the holder unless it has a separate agency contract with the new undisclosed principal. MERS presents no evidence as to who owns the note, or of any authorization to act on behalf of the present owner.”);

Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D. Cal. 2008) (unpublished opinion) (”[F]or there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. . . . MERS purportedly assigned both the deed of trust and the promissory note. . . . However, there is no evidence of record that establishes that MERS either held the promissory note or was given the authority . . . to assign the note.”).

Separation of the Note and the Deed

In the case of MERS, the Note and the Deed of Trust are held by separate entities. This can pose a unique problem dependent upon the court. There are many court rulings based upon the following:

“The Deed of Trust is a mere incident of the debt it secures and an assignment of the debt carries with it the security instrument. Therefore, a Deed Of Trust is inseparable from the debt and always abides with the debt. It has no market or ascertainable value apart from the obligation it secures.

A Deed of Trust has no assignable quality independent of the debt, it may not be assigned or transferred apart from the debt, and an attempt to assign the Deed Of Trust without a transfer of the debt is without effect. “

This very “simple” statement poses major issues. To easily understand, if the Deed of Trust and the Note are not together with the same entity, then there can be no enforcement of the Note. The Deed of Trust enforces the Note. It provides the capability for the lender to foreclose on a property. If the Deed is separate from the Note, then enforcement, i.e. foreclosure cannot occur.

MERS, actually the servicer, will Assign the Deed to the Note Holder, almost always after the Notice of Default has been filed. This will be an attempt to reunite the Deed and Note. But, as noted previously, MERS would likely no longer have the ability to Assign the Deed, since the Agency/Nominee status has been terminated. This could pose major issues, especially if the original lender is no longer in business.

When viewing a MERS loan, the examiner or attorney must pay careful attention to the following issues.

* The recorded history of the Deed to determine not just the current Deed Holder, but also who the Note Holder is. Are they one and the same, or are they separated, leading to an inability to foreclose unless reunited.

* When the Notice of Default was filed, were the Note and Deed separated, which would suggest that the Notice of Default was potentially unlawful.

* Did MERS have the authority to Foreclose, or even to make Assignments? There are a number of court cases suggesting otherwise.

* Who is signing for MERS? Is it a person with the Title Company, Trustee, or Servicer?

* Does the signer have legitimate authority to sign? Is the person holding factual knowledge of the homeowner being in default?

The entire subject of MERS is fraught with controversy and questions. Certainly, at the very least, MERS actions pose legal issues that are still being addressed each and every day. As to where these actions will ultimate lead, it is anybody’s guess. With some courts, the court sides with the lender, and others side with the homeowner. However, there does appear to be a trend developing that suggests, at least in Bankruptcy Courts, MERS is losing support.

Update:

I would like to point out that there is significant case law developing in other states regarding MERS. However, these are actions in other jurisdictions that do not necessarily apply in California. As a matter of fact, these arguments are generally not being accepted by most judges.
Currently, the state of California litigation is confused to say the least. Most judges are accepting the the California Foreclosure Statutes, Civil Code 2924, is all encompassing with regards to foreclosures. But 2924 only covers the procedural process. It does not take into account other relevant statutes related to Assignments of Beneficiary and Substitution of Trustee. Until such concerns are addressed and there is effective case law to cite, there will continue to be issues.


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Mers

1 07 2010

MERS

Basic Corporate Information
• MERS is incorporated within the State of Delaware.
• MERS was first incorporated in Delaware in 1999.
• The total number of shares of common stock authorized by MERS’ articles of incorporation is 1,000.
• The total number of shares of MERS common stock actually issued is 1,000.
• MERS is a wholly owned subsidiary of MERSCorp, Inc.
• MERS’ principal place of business at 1595 Spring Hill Road, Suite 310, Vienna, Virginia 22182
• MERS’ national data center is located in Plano, Texas.
• MERS’ serves as a “nominee” of mortgages and deeds of trust recorded in all fifty states.
• Over 50 million loans have been registered on the MERS system.
• MERS’ federal tax identification number is “541927784”.
The Nature of MERS’ Business
• MERS does not take applications for, underwrite or negotiate mortgage loans.
• MERS does not make or originate mortgage loans to consumers.
• MERS does not extend any credit to consumers.
• MERS has no role in the origination or original funding of the mortgages or deeds of trust for which it serves as “nominee”.
• MERS does not service mortgage loans.
• MERS does not sell mortgage loans.
• MERS is not an investor who acquires mortgage loans on the secondary market.
• MERS does not ever receive or process mortgage applications.
• MERS simply holds mortgage liens in a nominee capacity and through its electronic registry, tracks changes in the ownership of mortgage loans and servicing rights related thereto.
• MERS© System is not a vehicle for creating or transferring beneficial interests in mortgage loans.
• MERS is not named as a beneficiary of the alleged promissory note.
Ownership of Promissory Notes or Mortgage Indebtedness
• MERS is never the owner of the promissory note for which it seeks foreclosure.
• MERS has no legal or beneficial interest in the promissory note underlying the security instrument for which it serves as “nominee”.
• MERS has no legal or beneficial interest in the loan instrument underlying the security instrument for which it serves as “nominee”
• MERS has no legal or beneficial interest in the mortgage indebtedness underlying the security instrument for which it serves as “nominee”.
• MERS has no interest at all in the promissory note evidencing the mortgage indebtedness.
• MERS is not a party to the alleged mortgage indebtedness underlying the security instrument for which it serves as “nominee”.
• MERS has no financial or other interest in whether or not a mortgage loan is repaid.
• MERS is not the owner of the promissory note secured by the mortgage and has no rights to the payments made by the debtor on such promissory note.
• MERS does not make or acquire promissory notes or debt instruments of any nature and therefore cannot be said to be acquiring mortgage loans.
• MERS has no interest in the notes secured by mortgages or the mortgage servicing rights related thereto.
• MERS does not acquire any interest (legal or beneficial) in the loan instrument (i.e., the promissory note or other debt instrument).
• MERS has no rights whatsoever to any payments made on account of such mortgage loans, to any servicing rights related to such mortgage loans, or to any mortgaged properties securing such mortgage loans.
• The note owner appoints MERS to be its agent to only hold the mortgage lien interest, not to hold any interest in the note.
• MERS does not hold any interest (legal or beneficial) in the promissory notes that are secured by such mortgages or in any servicing rights associated with the mortgage loan.
• The debtor on the note owes no obligation to MERS and does not pay MERS on the note.
MERS’ Accounting of Mortgage Indebtedness / MERS Not At Risk
• MERS is not entitled to receive any of the payments associated with the alleged mortgage indebtedness.
• MERS is not entitled to receive any of the interest revenue associated with mortgage indebtedness for which it serves as “nominee”.
• Interest revenue related to the mortgage indebtedness for which MERS serves as “nominee” is never reflected within MERS’ bookkeeping or accounting records nor does such interest influence MERS’ earnings.
• Mortgage indebtedness for which MERS serves as the serves as “nominee” is not reflected as an asset on MERS’ financial statements.
• Failure to collect the outstanding balance of a mortgage loan will not result in an accounting loss by MERS.
• When a foreclosure is completed, MERS never actually retains or enjoys the use of any of the proceeds from a sale of the foreclosed property, but rather would remit such proceeds to the true party at interest.
• MERS is not actually at risk as to the payment or nonpayment of the mortgages or deeds of trust for which it serves as “nominee”.
• MERS has no pecuniary interest in the promissory notes or the mortgage indebtedness for which it serves as “nominee”.
• MERS is not personally aggrieved by any alleged default of a promissory note for which it serves as “nominee”.
• There exists no real controversy between MERS and any mortgagor alleged to be in default.
• MERS has never suffered any injury by arising out of any alleged default of a promissory note for which it serves as “nominee”.
MERS’ Interest in the Mortgage Security Instrument
• MERS holds the mortgage lien as nominee for the owner of the promissory note.
• MERS, in a nominee capacity for lenders, merely acquires legal title to the security instrument (i.e., the deed of trust or mortgage that secures the loan).
• MERS simply holds legal title to mortgages and deeds of trust as a nominee for the owner of the promissory note.
• MERS immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur.
• The investor continues to own and hold the promissory note, but under the MERS® System, the servicing entity only holds contractual servicing rights and MERS holds legal title to the mortgage as nominee for the benefit of the investor (or owner and holder of the note) and not for itself.
• In effect, the mortgage lien becomes immobilized by MERS continuing to hold the mortgage lien when the note is sold from one investor to another via an endorsement and delivery of the note or the transfer of servicing rights from one MERS member to another MERS member via a purchase and sale agreement which is a non-recordable contract right.
• Legal title to the mortgage or deed of trust remains in MERS after such transfers and is tracked by MERS in its electronic registry.
Beneficial Interest in the Mortgage Indebtedness
• MERS holds legal title to the mortgage for the benefit of the owner of the note.
• The beneficial interest in the mortgage (or person or entity whose interest is secured by the mortgage) runs to the owner and holder of the promissory note and/or servicing rights thereunder.
• MERS has no interest at all in the promissory note evidencing the mortgage loan.
• MERS does not acquire an interest in promissory notes or debt instruments of any nature.
• The beneficial interest in the mortgage (or the person or entity whose interest is secured by the mortgage) runs to the owner and holder of the promissory note (NOT MERS).
MERS As Holder
• MERS is never the holder of a promissory note in the ordinary course of business.
• MERS is not a custodian of promissory notes underlying the security instrument for which it serves as “nominee”.
• MERS does not even maintain copies of promissory notes underlying the security instrument for which it serves as “nominee”.
• Sometimes when an investor or servicer desires to foreclose, the servicer obtains the promissory note from the custodian holding the note on behalf of the mortgage investor and places that note in the hands of a servicer employee who has been appointed as an officer (vice president and assistant secretary) of MERS by corporate resolution.
• When a promissory note is placed in the hands of a servicer employee who is also an MERS officer, MERS asserts that this transfer of custody into the hands of this nominal officer (without any transfer of ownership or beneficial interest) renders MERS the holder.
• No consideration or compensation is exchanged between the owner of the promissory note and MERS in consideration of this transfer in custody.
• Even when the promissory note is physically placed in the hands of the servicer’s employee who is a nominal MERS officer, MERS has no actual authority to control the foreclosure or the legal actions undertaken in its name.
• MERS will never willingly reveal the identity of the owner of the promissory note unless ordered to do so by the court.
• MERS will never willingly reveal the identity of the prior holders of the promissory note unless ordered to do so by the court.
• Since the transfer in custody of the promissory note is not for consideration, this transfer of custody is not reflected in any contemporaneous accounting records.
• MERS is never a holder in due course when the transfer of custody occurs after default.
• MERS is never the holder when the promissory note is shown to be lost or stolen.
MERS’ Role in Mortgage Servicing
• MERS does not service mortgage loans.
• MERS is not the owner of the servicing rights relating to the mortgage loan and MERS does not service loans.
• MERS does not collect mortgage payments.
• MERS does not hold escrows for taxes and insurance.
• MERS does not provide any servicing functions on mortgage loans, whatsoever.
• Those rights are typically held by the servicer of the loan, who may or may not also be the holder of the note.
MERS’ Rights To Control the Foreclosure
• MERS must all times comply with the instructions of the holder of the mortgage loan promissory notes.
• MERS only acts when directed to by its members and for the sole benefit of the owners and holders of the promissory notes secured by the mortgage instruments naming MERS as nominee owner.
• MERS’ members employ and pay the attorneys bringing foreclosure actions in MERS’ name.
MERS’ Access To or Control Over Records or Documents
• MERS has never maintained archival copies of any mortgage application for which it serves as “nominee”.
• In its regular course of business, MERS as a corporation does not maintain physical possession or custody of promissory notes, deeds of trust or other mortgage security instruments on behalf of its principals.
• MERS as a corporation has no archive or repository of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
• MERS as a corporation is not a custodian of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
• MERS as a corporation has no archive or repository of the deeds of trust or other mortgage security instruments for which it serves as nominee.
• In its regular course of business, MERS as a corporation does not routinely receive or archive copies of the promissory notes secured by the mortgage security instruments for which it serves as nominee.
• In its regular course of business, MERS as a corporation does not routinely receive or archive copies of the mortgage security instruments for which it serves as nominee.
• Copies of the instruments attached to MERS’ petitions or complaints so not come from MERS’ corporate files or archives.
• In its regular course of business, MERS as a corporation does not input the promissory note or mortgage security instrument ownership registration data for new mortgages for which it serves as nominee, but rather the registration information for such mortgages are entered by the “member” mortgage lenders, investors and/or servicers originating, purchasing, and/or selling such mortgages or mortgage servicing rights.
• MERS does not maintain a central corporate archive of demands, notices, claims, appointments, releases, assignments, or other files, documents and/or communications relating to collections efforts undertaken by MERS officers appointed by corporate resolution and acting under its authority.
Management and Supervision
• In preparing affidavits and certifications, officers of MERS, including Vice Presidents and Assistant Secretaries, making representations under MERS’ authority and on MERS’ behalf, are not primarily relying upon books of account, documents, records or files within MERS’ corporate supervision, custody or control.
• Officers of MERS preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS’ authority and on MERS’ behalf, do not routinely furnish copies of these affidavits or certifications to MERS for corporate retention or archival.
• Officers of MERS preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS’ authority and on MERS’ behalf are not working under the supervision or direction of senior MERS officers or employees, but rather are supervised by personnel employed by mortgage investors or mortgage servicers.

This should be a pretty good start for those of you faced with a foreclosure in which MERS is falsely asserting that it is the owner of the promissory note. Whether MERS is or was ever the holder is a FACT QUESTION which can be determined only by ascertain the chain of custody of the promissory note. When the promissory note is lost, missing or stolen, MERS is NOT the holder.


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Another win against Downey Savings

29 06 2010

645068 – US BANK VS. MARTIN, A – Plaintiff’s Motion for Summary Judgment – DENIED. The Plaintiff as moving party has established a prima facie showing that it is entitled to judgment for possession against Defendant as a matter of law. However, Defendant’s objections Nos. 1, 3-6, 8, 9, and 11 to the Johnson Declaration are overruled; and objections Nos. 2, 7 and 10 are sustained, based on a lack personal knowledge and/or hearsay, regarding the alleged transfer of the beneficial interest to Plaintiff and as to the reasonable rental value.

Further, the Court finds the Defendant has met his burden of establishing triable issues of fact to rebut the presumption of validity of the sale and the issue of whether Plaintiff had the right to proceed with foreclosure. Namely the evidence of a gap in title and security interest from Downey Savings & Loan through the FDIC to Plaintiff during the time of the foreclosure proceeding, as well as missing evidence to show whether the Trustee, DSL Service Company, was authorized to act as Plaintiff’s agent in continuing to pursue the sale once Downey Savings & Loan had lost its security interest. (See Plaintiff’s undisputed fact # 7 and Defendant’s objection thereto; and Declaration of Defense counsel, McCandless, paragraphs 2, 8, 9, 10, 12 and 13). As such, triable issues of material fact remain and the motion for summary judgment is denied.


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Tags: stop foreclosure, mortgage meltdown, Foreclosure, litigation, Fraud
Categories : 2924, Foreclosure


Where and when does the fraud begin

26 06 2010

This document is meant to take the reader down a road they have
likely never traveled. This is a layman’s explanation of what has
been happening in this country that most have no idea or inkling
of. It is intended to give the reader an overview of a systemic
Fraud in this country that has reached epic proportions and
provoke action to eradicate this scourge that has descended upon
the people of America. This is intended as an overview of the process. Is
is one thing to have a grasp on what actually happened in our capitalistic
society it is quit another to convince a judge on these facts. The Judge
has his or her hands tied by the very system that allowed the
fraud in the first place.
Depending on what your situation is, you
may react with disbelief, fear, anger or outright disgust at what you
are about to learn. The following information is supported with
facts, exhibits, law and is not mere opinion.

Let’s start our journey of discovery with the purchase of a home
and subsequent steps in the financial process through the life of
the “mortgage loan”. It all starts at the “closing” where we gather
with other people that are “involved” in the process to sign the
documents to purchase our new home. Do we really know what
goes on at the closing? Are we ever told who all the participants
are in that entire process? Are we truly given “full disclosure” of all
the various aspects of that entire transaction regarding what, for
most people, is the single largest purchase they will make in their
entire life?

Let’s start with the very first part of the transaction. We have a
virtual stack of papers placed in front of us and we are instructed
where we are supposed to start signing or initialing on those
“closing documents”. There seems to be so many different
documents with enough legal language that we could read for
hours just to get through them the first time, much less begin to
fully understand them. Are we given a copy of all these documents
at least 7 days prior to the closing so we can read and study these
documents so we fully understand what it is that we are signing
and agreeing to? That has never happened for the average
consumer and purchaser of a property in the last 30 years or more
if it ever has at all. WHY? We have a stack of documents placed
before us at the “closing” that we haven’t ever seen before and are
instructed where to sign or initial to complete the transaction and
“get our new home”. We depend on the real estate agent, in most
cases, to bring the parties together at the closing after we have
supplied enough financial data and other requested information so
that the “lender” can determine whether we can qualify for our
“loan”. Obviously we have the “three day right of rescission” but do
we really stop to read all the documents after we have just
purchased our home and want to move in? Is the thought that
there might be something wrong with what we have just signed a
primary thought in our mind at that time? Did we trust the people
involved in the transaction? Are we naturally focusing on getting
moved into our new home and getting settled with our family?

Who are the players involved in the transaction from the
perspective of the consumer purchasing a property and signing a
“Mortgage Note” and “Deed” or similar “Security Instrument” at the
closing? There is, of course, the seller, the real estate agent(s), title
insurance company, property appraiser who is supposed to
properly determine the value of the property, and the most
obvious one being who we believe to be “the lender” in the
transaction. We are led, by all involved, to believe that we are, in
fact, borrowing money from the “lender” which is then paid to the
current owner of the property as compensation for them
relinquishing any “claim of ownership” to the property and
transferring that “claim of ownership” to us as the purchaser. It all
seems so simple and clear on its face and then the transaction is
completed. After the “closing” everyone is all smiles and you
believe you have a new home and have to repay the “lender”, over a
period of years, the money which you believe you have “borrowed”.

IS THERE SOMETHING WE DON’T KNOW?

Everything appears to be relatively simple and straightforward
but is that really the case? Could it be that there are other players
involved in this whole transaction that we know nothing about that
have a very substantial financial interest in what has just
occurred? Could it be that those players that we are totally
unaware of have somehow used us without our knowledge or

consent to secure a spectacular financial gain for themselves with
absolutely no investment or risk to themselves whatsoever? Could
it be that there is a hidden aspect of this whole transaction that is
“standard operating procedure” in an industry where this hidden
“aspect of a transaction” occurs every single banking day across
this country and beyond? Could it be that this hidden “aspect of a
transaction” is a deliberate process to unjustly enrich certain
individuals and entities at the expense of the public as a whole?
Could it be that there was not full disclosure of the “true nature” of
the transaction as it actually occurred which is required for a
contract to be valid and enforceable?

THE DOCUMENTS INVOLVED

The two most important and valuable documents that are signed
at a closing are the “Note” and the “Deed” in various forms. When
looking at the definition of a “Mortgage Note” it is obvious that it is
a “Security Instrument”. It is a promise to pay made by the maker
of that “Note”. When looking at a copy of a “Deed of Trust” such as
the attached Exhibit “A”, which is a template of a Tennessee “Deed
of Trust” form that is directly from the freddiemac.com website, it
is very obvious that this document is also a “Security Instrument”.
This is a template that is used for MOST government purchased
loans. You will note that the words “Security Instrument” are
mentioned no less than 90 times in that document. Is there ANY
doubt it is a “Security”? When at the closing, the “borrower” is led

to believe that the “Mortgage Note” that he signs is a document that
binds him to make repayment of “money” that the “lender” is
loaning him to purchase the property he is acquiring. Is there
disclosure to the “borrower” to the effect that the “lender” is not
really loaning any of their money to the “borrower” and therefore
is taking no risk whatsoever in the transaction? Is it disclosed to
the “borrower” that according to FEDERAL LAW, banks are not
allowed to loan credit and are also not allowed to loan their own or
their depositor’s money? If that is the case, then how could this
transaction possibly take place? Where does the money come
from? Is there really any money to be loaned? The answer to this
last question is a resounding NO! Most people are not aware that
there has been no lawful money since the bankruptcy of the United
States in 1933.

Since House Joint Resolution 192 (HJR 192) (Public law 7310)
was passed in 1933 we have only had debt, because all property
and gold was seized by the government as collateral in the
bankruptcy of the United States. Most people today would think
they have money in their hand when they pull something out of
their pocket and look at the paper that is circulated by the banks
that they have been told is “money”. In reality they are looking at a
“Federal Reserve Note” which is stated right on the face of the piece
of paper we have come to know as “money”. It is NOT really
“money”, it is debt, a promise to pay made by the United States! If
you take a “Federal Reserve Note” showing a value of ten dollars

and buy something, you are then making a purchase with a “Note”
(a promise to pay). There is absolutely no gold or silver backing
the Federal Reserve Notes that we refer to as “money” today.

When you sit down at the closing table to complete the
transaction to purchase your home aren’t you tendering a “Note”
with your signature which would be considered money? That is
exactly what you are doing. A “Note” is money in our monetary
system today! You can deposit the “Federal Reserve Note” (a
promise to pay) with a denomination of $10 at the bank and they
will credit your account in that same amount. Why is it that when
you tender your “Note” at the closing that they don’t tell you that
your home is paid for right on the spot? The fact is that it IS PAID
FOR ON THE SPOT. Your signature on a “Note” makes that “Note”
money in the amount that is stated on the “Note”! Was this
disclosed to you at the “closing” in either verbal or written form?
Could this be the place where the other players come into the
transaction at or near the time of closing? What happens to the
“Note” (promise to pay) that you sign at the closing table? Do they
put it in their vault for safe keeping as evidence of a debt that you
owe them as you are led to believe? Do they return that note to you
if you pay off your mortgage in 5, 10 or 20 years? Do they disclose
to you that they do anything other than put it away for safe keeping
once it is in their possession?

WHAT ACTUALLY HAPPENS TO THE “NOTE”?

Unknown to almost everyone, there is something VERY different
that happens with your “Mortgage Note” immediately after closing.

Your “Mortgage Note” is endorsed and deposited in the bank as a
check and becomes “MONEY”! See attached (Exhibit “B” para 13)
The document that you just gave the bank with your signature on
it, that you believe is a promise to pay them for money loaned to
you, has just been converted to money in THEIR ACCOUNT. You
just gave the “lender” the exact dollar value of what they said they
just loaned you! Who is the REAL creditor in this “Closing
Transaction”? Who really loaned who anything of value or any
money? You actually just paid for your own home with your
promissory “Mortgage Note” that you gave the bank and the bank
gave you what in return? NOTHING!!! For any contract to be valid
there must be consideration given by both parties. But don’t they
tell you that you must now pay back the “Loan” that they have
made to you?

How can it be that you could just write a “Note” and pay for your
home? This leads us back to the bankruptcy of the United States in
1933. When FDR and Congress took all the property and gold from
the people in 1933 they had to give something in return for that
confiscation of property. See attached (Exhibit “B” para 6) What
the people got in return was the promise that all of their needs
would be met by the government because the assets and the labor
of the people were collateral for the debt of the United States in the

bankruptcy. All of their debts would be “discharged”. This was
done without the consent of the people of America and was an act
of Treason by President Franklin Delano Roosevelt. The problem
comes in where they never told us how we could accomplish that
discharge and have what we were entitled to after the bankruptcy.
Why has this never been taught in the schools in this country?
Could it be that it would expose the biggest fraud in the history of
this entire country and in the world? If the public is purposely not
educated about certain things then certain individuals and entities
can take full financial advantage of virtually the entire population.
Isn’t this “selective education” more like “indoctrination”? Could
this be what has happened? In Fina Supply, Inc. v. Abilene Nat.
Bank, 726 S.W.2d 537, 1987 it says “Party having superior
knowledge who takes advantage of another’s ignorance of the law
to deceive him by studied concealment or misrepresentation can
be held responsible for that conduct.” Does this mean that if there
are people with superior knowledge as a party in this “Loan
Transaction” that take advantage of the “ignorance of the law”,
(through indoctrination) of the public to unjustly enrich
themselves, that they can be held responsible? Can they be held
responsible in only a civil manner or is there a more serious
accountability that falls into the category of criminal conduct?

It is well established law that Fraud vitiates (makes void) any
contract that arises from it. Does this mean that this intentional
“lack of disclosure” of the true nature of the contract we have

entered into is Fraud and would make the mortgage contract void
on its face? Could it be that the Fraud could actually be “studied
concealment or misrepresentation” that makes those involved in
the act responsible and accountable? What happens to the “Note”
once it is deposited in the bank and is converted to “money”? Are
there different kinds of money? There is money of exchange and
money of account. They are two very different things. See attached
(Exhibit “B” para 11), Affidavit of Expert Witness Walker Todd.
Walker Todd explains in his expert witness affidavit that the banks
actually do convert signatures into money. The definition of
“money” according to the Uniform Commercial Code: “Money” means a
medium of exchange authorized or adopted by a domestic or foreign
government and includes a monetary unit of account established by an
intergovernmental organization or by agreement between two or more nations. Money can actually be in different forms other than what we are
accustomed to thinking. When you sign your name on a
promissory note it becomes money whether you are talking a
mortgage note or a credit card application! Did the bankers ever
“disclose” this to us? Were we ever taught anything about this in
the school system in this country? Could it be that this whole idea
of being able to convert our signature to money is a “studied
concealment” or “misrepresentation” where those involved
become responsible if we are harmed by their actions? What
happens if you have signed a “Mortgage Note” and already paid for
your home and they come at a later date and foreclose and take it
from you? Would you consider yourself to be harmed in any way?
We will bring this up again very shortly but we need to look at the

other document that is signed at the “closing” that is of great
significance.

THE DEED OF TRUST

Why do we need a Deed of Trust? What exactly IS a Deed of
Trust or other similar “Security Instrument”? It spells out all the
details of the contract that you are signing at the “closing”,
including such things as insurance requirements, preservation and
maintenance and all of the financial details of how, when, where
and why you are going to make payments to the “lender” for years
and years. Wait a minute!!!!! Make payments to the “lender”????
Why do you have to make payments to the “lender”??? Didn’t we
just establish the fact that your house was paid for by YOU, with
your “Mortgage Note” that is converted to money by THE BANK
DEPOSITING IT? Is there something wrong with this picture? We
have just paid for our “home” but now we are told we have to sign a
Deed of Trust or similar “Security Instrument” that binds us to pay
the “lender” back? Pay the “lender” back for what? Did they loan
us any money? Remember the part about banks not being able to
loan “their or their depositors money” under FEDERAL LAW? What
about: “In the federal courts, it is well established that a national bank
has no power to lend its credit to another by becoming surety, indorser,
or guarantor for him.” Farmers and Miners Bank v. Bluefield Nat ‘l
Bank, 11 F 2d 83, 271 U.S. 669; “A national bank has no power to lend
its credit to any person or corporation.” Bowen v. Needles Nat. Bank, 94

F 925, 36 CCA 553, certiorari denied in 20 S.Ct 1024, 176 US 682, 44
LED 637?

What is happening here with this “Deed of Trust” or similar
“Security Instrument” that says we have to pay all this money back
and if we don’t, they can foreclose and take our home? Why do we
have to have this kind of agreement when we have already paid for
our home through our “Mortgage Note” which was converted to
money BY THE BANK? Could this possibly be another example of
“studied concealment or misrepresentation” where those involved
could be held accountable for their conduct? What happens to this
Deed of Trust or similar “Security Instrument” after we sign it?
Where does it go? Does it go into the vault for safekeeping like we
might think? See attached Exhibit “C” for substantially more
information.

WHO ARE THE OTHER PLAYERS?

We have already found out that the “Note” doesn’t go into the vault
for safe keeping but instead is deposited into an account at the
bank and becomes money. Where does the Note go then? This is
where things get VERY interesting because your “Mortgage Note” is
then used to access your Treasury Account (that you know nothing
about) and get credit in the amount of your “Mortgage Note” from
your “Prepaid Treasury Account”. If they process the “Note” and
get paid for it then they have received the funds from YOUR

account at Treasury to pay for YOUR home correct? They then turn
around and bundle the “Note” and sell it to investors on Wall Street
and get paid again! Now let’s see what happens to the “Deed of
Trust” or similar “Security Instrument” after you have signed it.
You may be quite surprised to know that not only does it not go
into “safekeeping” it is immediately SOLD as an INVESTMENT
SECURITY to one of any number of investors tied to Wall Street.
There is a ready, and waiting, market for all of the “mortgage
paper” that is produced by the banks. What happens is the “Deed
of Trust” or other similar “Security Instrument” is bundled and
SOLD to a buyer and the BANK GETS PAID FOR THE VALUE OF THE
MORTGAGE AGAIN!! Haven’t the bankers just transferred any risk
on that mortgage to someone else and they have their money?
That is a pretty slick way of doing things! They ALWAYS get their
money right away and everyone else connected to the transaction
has the liabilities! Is there something wrong with THIS picture?
How can it possibly be that the bank has now been paid three times
in the amount of your “purported” mortgage? How is it that you
still have to pay years and years on this “purported” loan? Was any
of this disclosed to you before you signed the “Deed of Trust” or
other similar “Security Instrument”? Would you have signed ANY
of those documents including the “Mortgage Note” if you knew that
this is what was actually happening? Do you think there were any
“copies” of the “Mortgage Note” and “Deed of Trust” or other
similar “Security Instrument” made during this process? Are those

“copies” just for the records to be put in a file somewhere or is
there another purpose for them?

CAN REPRODUCING A NOTE OR DEED OF TRUST BE
ILLEGAL?

We have already established that the “Mortgage Note” and the
“Deed of Trust” or other similar “Security Instrument” are
“Securities” by definition under the law. Securities are regulated
by the Securities and Exchange Commission which is an agency of
the Federal Government. There are very strict regulations about
what can and cannot be done with “Securities”. There are very
strict regulations that apply to the reproduction or “copying” of
“Securities”:

The Counterfeit Detection Act of 1992, Public Law 102-550, in Section 411 of Title 31 of the Code of Federal Regulations, permits color illustr

ations of U.S. currency provided: . The illustration is of a size less than three-fourths or more than one and one-ch part of the item illustrated

half, in linear dimension, of ea

. The illustration is one-sided All negatives, plates, positives, digitized storage medium, graphic files, magnetic medium, optical storage devices, and any other thing used in the making of the illustration that contain an image of the illustration or any part thereof are destroyed and/or deleted or erased after their final use

Other

Obligations and Securities
. Photographic or other likenesses of other United States obligations and securities and foreign currencies are permissible for any non-fraudulent purpose, provided the items are reproduced in black and white and are less

than three-quarters or greater than one-and-one-half times the size, in linear dimension, of any part of the original item being reproduced. Negatives and plates used in making the likenesses must be destroyed after their use for the purpose for which they were made.

Title 18 USC § 472 Uttering counterfeit obligations or securities
Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years, or both.

Title 18 USC § 473 Dealing in counterfeit obligations or securities Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be fined under this title or imprisoned not more than 20 years, or both.

Title 18 USC § 474 Plates, stones, or analog, digital, or electronic

images for counterfeiting obligations or securities Whoever, with intent to defraud, makes, executes, acquires, scans, captures, records, receives, transmits, reproduces, sells, or has in such person’s control, custody, or ossession, an analog, digital, or electronic image of any obligation or other security f the United States is guilty of a class B felony.

p

o

Are these regulations always adhered to by the “lender” when
they have possession of these “original” SECURITIES and make
reproductions of them before they are “sold to investors? How
much has been in the media in the past 2 years about people
demanding to see the “wet ink signature Note” when there is a
foreclosure action initiated against them? You hear it all the time.
Why is that such a big issue? Shouldn’t the “lender” be able to just
bring the “Note” and the “Deed of Trust” or similar “Security
Instrument” to the Court and show that they have the original

documents and are the “holder in due course” and therefore have a
legal right to foreclose? To foreclose they must have BOTH the
“Mortgage Note” and “Deed of Trust” or other similar “Security
Instrument” ORIGINAL DOCUMENTS in their possession at the time
the foreclosure action is initiated. Furthermore, IS there a real
honest to goodness obligation to be collected on?

Why is it that there is such a problem with “lost Mortgage Notes”
as is claimed by numerous lenders that are trying to foreclose
today? How could it be that there could be so many “lost”
documents all of a sudden? Could it be that the documents weren’t
really lost at all, but were actually turned into a source of revenue
that was never disclosed as being a part of the transaction? To
believe that so many “original” documents could be legitimately
“lost” in such a short period of time stretches the credibility of such
claims beyond belief. Could this be the reason that MERS (Mortage
Electronic Registration Systems) was formed in the 1990’s as a way
to supposedly “transfer ownership of a mortgage” without having
to have the “original documents” that would be required to be
presented to the various county recorders? Could it be they KNEW
THEY WOULDN’T HAVE THE ORIGINAL DOCUMENTS FOR
RECORDING and had to devise a system to get around that
requirement? When the foreclosure action is filed in the court the
attorney for the purported “party of interest”, usually the “lender”
who is foreclosing, files a “COPY” of the “Deed of Trust” or similar
“Investment Security” with the Complaint to begin foreclosure

proceedings. Is that “COPY” of the “Security Instrument” within the
“regulations” of Federal Law under 18 U.S.C. § 474? Is it usually the
same size or very nearly the same size as the original document?
Yes it is and without question it is a COUNTERFEIT SECURITY! Who
was it that produced that COUNTERFEIT SECURITY? Who was
involved in taking that COUNTERFEIT SECURITY to the Court to file
the foreclosure action? Who is it that is now legally in possession
of that COUNTERFEIT SECURITY? Has everyone from the original
“lender” down to the Clerk of the Court where the foreclosure is
now being litigated been in possession or is currently in possession
of that COUNTERFEIT SECURITY? What about the Trustees who are
involved in the process of selling foreclosed properties in nonjudicial
states? What about the fact that there is no judicial
proceeding in those states where the documentation purported to
be legal and proper to bring a foreclosure action can be verified
without expensive litigation by the alleged “borrower”? All the
trustee has to do is send a letter to the alleged “borrower” stating
they are in default and can sell their property at public auction. It
is just ASSUMED that they have the “ORIGINAL” documents in their
possession as required by law. In reality, in almost every situation,
they do NOT!!! They are using a COUNTERFEIT SECURITY as the
basis to foreclose on a property that was paid for by the person
who signed the “Mortgage Note” at the closing table that was
converted to money by the bank. When it is demanded they
produce the actual “original signed documents” they almost always
refuse to do so and ask the Court to “take their word for it” that

they have
. They have,
instead, submitted a COUNTERFEIT SECURITY to the Court as their
“proof of claim” to attempt to unjustly enrich themselves through a
blatantly fraudulent foreclosure action. One often cited example of
this was the decision handed down by U. S. Federal District Court
Judge Christopher A. Boyko of Ohio, who on October 31, 2007
dismissed 14 foreclosure actions at one time with scathing
footnote comments about the actions of the Plaintiffs and their
attorneys. See (Exhibit “E”). Not long after that came the dismissal
of 26 foreclosure cases in Ohio by U.S. District Court Judge Thomas
M. Rose who referenced the Boyko ruling in his decision. See
(Exhibit “F”). How many other judges have not been so brave as to
stand on the principles of law as Judges Boyko and Rose did, but
need to start doing so TODAY?
BOTH of the original documents which are absolutely
required to be in their possession to begin foreclosure actions.
Almost every time the people that are being foreclosed on are able
to convince the Court (in judicial foreclosures) to demand that
those “original documents” be produced in Court by the Plaintiff,
the foreclosure action stops and it is obvious why that happens!
THEY DON’T HAVE THE “ORIGINAL” DOCUMENTS

Has any of this foreclosure activity crossed state lines in
communications or other activities? Have there been at least two
predicate acts of Fraud by the parties involved? Have the people
involved used any type of electronic communication in this Fraud
such as telephone, faxing or email? It is obvious that those

questions have to be answered with a resounding YES! If that is the
case, then the Fraud that has been discussed here falls under the
RICO statutes of Federal Law. Didn’t they eventually take down the
mob for Racketeering under RICO statutes years ago? Is it time to
take down the “NEW MOB” with RICO once again?

HOW RAMPANT IS THIS FRAUD?

How could this kind of situation ever occur in this country?
Could it be that this whole entire process could be “studied
concealment or misrepresentation” where the parties involved are
responsible under the law for their conduct? Could it be that it is
no “accident” that so many “wet ink signature” Notes cannot be
produced to back up the foreclosure actions that are devastating
this country? Could it be that the overwhelming use of
COUNTERFEIT SECURITIES, as purported evidence of a debt in
foreclosure cases, is BY DESIGN and “studied concealment or
misrepresentation” so as to strip the people of this country of their
property and assets? Could it be that a VERY substantial number of
Banks, Mortgage Companies, Law Firms and Attorneys are guilty of
outright massive Fraud, not only against the people of this country,
but of massive Fraud on the Court as well because of this
COUNTERFEITING? How could one possibly come to any other
conclusion after learning the facts and understanding the law?
How many other people are implicated in this MASSIVE FRAUD
such as Trustees and Sheriffs that have sold literally millions of

homes after foreclosure proceedings based on these COUNTERFEIT
SECURITIES submitted as evidence of a purported obligation? How
many judges know about this Fraud happening right in their own
courtrooms and never did anything? How many of them have
actually been PAID for making judgments on foreclosures?
Wouldn’t that be a felony or at the very least, misprision of felony,
to know what is going on and not act to stop it or make it known to
authorities in a position to investigate and stop it?

How is it that so many banks could recover financially, so
rapidly, from the financial debacle of 200809,
with foreclosures
still running at record levels, and yet pay back taxpayer money that
was showered on them and do it so quickly? Could it be that when
they take back a property in foreclosure where they never risked
any money and actually were unjustly enriched in the previous
transaction, that it is easy to make huge sums by reselling that
property and then beginning the whole “Unconscionable” process
all over again with a new “borrower”? How is it that just three
years ago a loan was available to virtually almost anyone who
could “fog a mirror” with no documentation of income or ability to
repay a loan? Common sense makes you ask how “lenders” could
possibly take those kinds of risks. Could it be that the ability to
“repay a loan” was not an issue at all for the lenders because they
were going to get their profits immediately and risk absolutely
nothing at all? Could it be that, if anything, they stood to make
even more money if a person defaulted on the “alleged loan” in a

short period of time? They could literally obtain the property for
nothing other than some legal fees and court filing costs through
foreclosure. They could then resell the property and reap
additional unjust profits once again! One does not need to have
been a finance major in college to figure out what has been
happening once you are enlightened to the FACTS.

WHAT ACTIONS HAVE PEOPLE TAKEN TO AVOID LOSING
THEIR HOMES IN FORECLOSURE?

There have been a number of different actions taken by people
to keep from losing their homes in foreclosure. The first and most
widely used tactic is to demand that the party bringing the
foreclosure action does, in fact, have the standing to bring the
action. The most important issue of standing is whether that party
has actual possession of the “original wet ink signature”
documents from the closing showing they are the “holder in due
course”. As previously mentioned, in almost ALL cases the Plaintiff
bringing the action refuses to make these documents available for
inspection by the Defendant in the foreclosure action so they can,
in fact, determine the authenticity of those documents that are
claimed to be “original” and purportedly giving the legal right to
foreclose. The fact that the Courts allow this to happen repeatedly
without demanding the Plaintiff bring the ”wet ink signature
documents” into the court for inspection by the Defendant, begs
the question of whether some of the judiciary are involved in this

Fraud. Where is due process under the law for the Defendant when
the Plaintiff is NOT REQUIRED by the Court to meet that burden of
proof of standing, when demanded, to bring their action of
foreclosure?

One other option that has been used more and more frequently
in recent months to deal with foreclosure actions is the issuing of a
“Bonded Promissory Note” or “Bill of Exchange” as payment to the
alleged “lender” as satisfaction of any amounts allegedly owed by
the Defendant. As was earlier described, a “Note” is money and as
the banks demonstrated after the closing, it can be deposited in the
bank and converted to money. SOME of the “Bonded Promissory
Notes” and “Bills of Exchange” are, in fact, negotiated and credit is
given to the accounts specified and all turns out well. See (Exhibit
“B” para 12) The problem that has occurred is that MANY of the
“lenders” say that the “Bonded Promissory Notes” and “Bills of
Exchange” are bogus documents and are worthless and fraudulent
and they refuse to give credit for the amount of the “Note” they
receive as payment of an alleged debt even though they are given
specific instructions on how to negotiate the “Note”. Isn’t it
interesting that THEY can take a “Note” that THEY print and put
before you to sign at the closing table and deposit it in the bank
and it is converted to money immediately, but the “Note” that YOU
issue is worthless and fraudulent? The only difference is WHO
PRINTS THE NOTE!!!! They are both signed by the same
“borrower” and it is that person’s credit that backs that “Note”.

The “lenders” don’t want the people to know they can use your
“Prepaid Treasury Account”, just as the banks do without your
knowledge and consent. See (Exhibit “D”) for more information on
“Bills of Exchange”. The fact that SOME of the “Bonded Promissory
Notes” are negotiated and accounts are settled, proves beyond a
shadow of a doubt that they are legal SECURITIES just like the one
that the bank got from the “borrower” at the closing. Why then
aren’t ALL of the “Notes” processed and credit given to the accounts
and the foreclosure dismissed? Because by doing so you would be
lowering the National Debt and the bankers would make less
money!!!!

One very interesting thing that happens with these “Bonded
Promissory Notes” or “Bills of Exchange” that are submitted as
payment, is that they are VERY RARELY RETURNED TO THE ISSUER
yet credit is not given to the intended account. They are not
returned, and the issuer is told they are “bogus, fraudulent and
worthless” but they are NOT RETURNED! Why would someone
keep something that is allegedly “bogus, fraudulent and
worthless”? Could it be that they are NOT REALLY “BOGUS,
FRAUDULENT AND WORTHLESS” and the “lender” has, in fact,
actually negotiated them for YET EVEN MORE UNJUST
ENRICHMENT? That is exactly what happens in many instances.
There could be no other explanation for the failure to return the
allegedly “worthless” documents WHICH ARE ACTUALLY
SECURITIES!!! Does the fact that they keep the “Note” that was

submitted and refuse to credit the account that it was written to
satisfy, rise to the level of THEFT OF SECURITIES? This is just one
more example of the Fraud that is so obvious. This is but one more
example of the ruthless nature of those who would defraud the
people of this country.

CONCLUSIONS

One of the incredible aspects of this whole debacle is the fact
that the very people who are participants in this Fraud are victims
as well. How many bank employees, judges, court clerks, lawyers,
process servers, Sheriffs and others have mortgages? How many of
the people who work in law offices, Courthouses, Sheriffs
Departments and other entities that are directly involved in this
Fraud have been fraudulently foreclosed on themselves? How
many people in our military, law enforcement, firefighting and
medical fields have lost their homes to this Fraud? How many of
your friends or neighbors have lost their homes to these
fraudulent foreclosures? Everyone who has a mortgage is a VICTIM
of this fraud but some of the most honest, trusting, hardest
working and most dedicated people in this country have been the
biggest victims. Who are those who have been the major
beneficiaries of this massive Fraud? Those with the “superior
knowledge” that enables them to take advantage of another’s
ignorance of the law to deceive them by “studied concealment or
misrepresentation”. This group of beneficiaries includes many on
Wall Street, large investors, and most notoriously, the bankers at
the top and the lawyers who work so hard to enhance their profits

and protect the Fraud by them from being exposed. The time has
now come to make those having superior knowledge who HAVE
taken advantage of another’s ignorance of the law to deceive them
by studied concealment or misrepresentation to be held
responsible for that conduct. This isn’t just an idea. It is THE LAW
and it is time to enforce it starting with the criminal aspect of the
fraud! Under the doctrine of “Respondeat Superior” the people at
the top of these organizations are responsible for the actions of
those in their employ. That is where the investigations and arrests
need to start.

What is it going to take to put a stop to the destruction of this
country and the lives of the people who live here? It is going to
take an uprising of the people of this country, as a whole, to finally
say that they have had enough. The information presented here is
but one part of the beginning of that uprising and the beginning of
the end of the Fraud upon the people of America. It is obvious, as
has been pointed out here, with supporting evidence, that Fraud is
rampant. You now know the story and can no longer say you are
totally uninformed about this subject. This is only an outline of
what needs to, and will, become common knowledge to the people
and law enforcement agencies in this country. If you are in law
enforcement it is YOUR DUTY to take what you have been given
here and move forward with your own intense investigation and
root out the Fraud and stop the theft of people’s homes. Your

failure to do so would make you an accessory to the fraud through
your inaction now that you have been noticed of what is occurring.

If you are an attorney and receive this information it would do
you well to take it to heart, and understand there is no place for
your participation in this Fraud and if you participate you will
likely become liable for substantial damages, if not more severe
consequences such as prison. If you are in the judiciary you would
do well to start following the letter of the law if you haven’t been,
and start making ALL of those in your Court do likewise, lest you
find yourself looking for employment as so many others are, if you
are not incarcerated as a result of your participation in the fraud.
If you are part of the law enforcement community that enforces
legal matters regarding foreclosure you would do well to make
sure that ALL things have been done legally and properly rather
than just taking the position “I am just doing my job” and turn a
blind eye to what you now know. If you are a banker, you must
know that you are now going to start being held accountable for
the destruction you have wreaked on this country. You have every
right to be, and should be, afraid…….very afraid. If you are one of
the ruthless foreclosure lawyers that has prayed on the numerous
people who have lost their homes, you need to be afraid also. Very
VERY afraid. When people learn the truth about what you have
done to them you can expect to see retaliation for what you have
done. People are going to want to see those who defrauded them
brought to justice. These are not threats by any stretch of the

imagination. These are very simple observations and the study of
human behavior shows us that when people find out they have
been defrauded in such a grand manner as this, they tend to
become rather angry and search for those who perpetrated the
fraud upon them. The foreclosure lawyers and the bankers will be
standing clearly in their sights.

The question of WHERE DOES THE FRAUD BEGIN has been
answered. It began right at the closing table and was perpetuated
all the way to the loss of property through foreclosure or the
incredible payment of 20 or 30 years of payments and interest by
the alleged “borrower” to those who would conspire to commit
Fraud, collusion and counterfeiting and practice “studied
concealment or misrepresentation” for their own unjust
enrichment.

The simplest of analogies: What would happen if you were to
make a copy of a $100 Federal Reserve Note and go to Walmart and
attempt to use it to fraudulently acquire items that you wanted?
You more than likely would be arrested and charged with
counterfeiting under Title 18 USC § 474 and go to prison. What is
the difference, other than the magnitude of the fraud, between that
scenario and someone who makes a copy of a mortgage security,
and using it through foreclosure, attempts to fraudulently acquire
a property? Shouldn’t they be treated exactly the same under the
law? The answer is obvious and now it is starting to happen.

Title 18 USC § 474

Whoever, with intent to defraud, makes, executes,
acquires, scans, captures, records, receives, transmits,
reproduces, sells, or has in such person’s control, custody,
or possession, an analog, digital, or electronic image of any
obligation or other security of the United States is guilty of
a class B felony.

“Fraud vitiates the most solemn Contracts, documents and
even judgments” [U.S. vs. Throckmorton, 98 US 61, at pg.
65].

“It is not necessary for rescission of a contract that the
party making the misrepresentation should have known
that it was false, but recovery is allowed even though
misrepresentation is innocently made, because it would be
unjust to allow one who made false representations, even
innocently, to retain the fruits of a bargain induced by
such representations.” [Whipp v. Iverson, 43 Wis 2d 166].

“Any false representation of material facts made with
knowledge of falsity and with intent that it shall be acted
on by another in entering into contract, and which is so
acted upon, constitutes ‘fraud,’ and entitles party deceived
to avoid contract or recover damages.” Barnsdall Refining
Corn. v. Birnam Wood Oil Co. 92 F 26 817.

Exhibit B Walker Todd_Note Expert Witness

Exhibit D Mem of Law Bills of Exch

Exhibit A Deed Trust Tenn

Exhibit C Mem of Law Bank Fraud_Foreclosures

Exhibit E Boyko_Foreclosure Case


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Tags: stop foreclosure, Foreclosure, Fraud, Predatory Lending, wrongful foreclosure
Categories : Foreclosure


Eviction and the issue of “Duly perfected” foreclosure sale

24 06 2010

The Lender has already foreclosed on your house at the time they bring a Unlawful
Detainer action against you. The Unlawful Detainer is just an eviction and not a
foreclosure proceeding. If you want to stop the eviction, you have to claim that they
have no right to evict because of a defective deed due to fact that they are not true
lender, etc.
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code § 624; 5.45[1][c]] is contained in CCP § 1161a. By extending
the summary eviction remedy beyond the conventional landlord-tenant relationship to
include purchasers of the occupied property, the statute provides for a narrow and
sharply focused examination of title. A purchaser of the property as described in the
statute, who starts an unlawful detainer proceeding to evict an occupant in possession,
must show that he or she acquired the property at a regularly conducted sale and
thereafter “duly perfected” the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251,
255, 142 CR 414, 572 P2d 28 ]. To this limited extent, as provided by the statute, title
may be litigated in the unlawful detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d
158, 159, 69 P2d 832 ].
CCP § 1161
1. In General; Words and Phrases
Term “duly” implies that all of those elements necessary to valid sale exist. Kessler v.
Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958
Cal App LEXIS 1814.
Title that is “duly perfected” includes good record title, but is not limited to good record
title. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327
P2d 241, 1958 Cal App LEXIS 1814.
Title is “duly perfected” when all steps have been taken to make it perfect, that is, to
convey to purchaser that which he has purchased, valid and good beyond all
reasonable doubt. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d
Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
The purpose of CCP 1161a, providing for the removal of a person holding over after a
notice to quit, is to make clear that one acquiring ownership of real property through
foreclosure can evict by a summary procedure. The policy behind the statute is to
provide a summary method of ouster where an occupant holds over possession after
sale of the property. Gross v. Superior Court (1985, Cal App 1st Dist) 171 Cal App 3d
265, 217 Cal Rptr 284, 1985 Cal App LEXIS 2408.
Go to Topic List 2. Construction, Interpretation, and Application
This section extended the former statute to permit persons not in the relationship of
landlord and tenant to maintain an action in unlawful detainer. Hewitt v. Justice’s Court
of Brooklyn Township (1933, Cal App) 131 Cal App 439, 21 P2d 641, 1933 Cal App
LEXIS 731.
Under this section, which was added to the code in 1929, an action in unlawful detainer
by a purchaser at a trustee’s sale under a deed of trust is a proper proceeding to
remove persons from the demised premises; and, the remedy being purely statutory, if
the determination of the question of title to realty becomes necessary, the legislature
had the right to provide for the trial of that issue in such a proceeding. Nineteenth Realty
Co. v. Diggs (1933) 134 Cal App 278, 25 P 2d 522, 1933 Cal App LEXIS 54.
In an action to recover possession of premises under this section, the record title owner
is sufficiently the owner, notwithstanding that he holds title as trustee for some other
person, to maintain the suit. Kraemer v. Coward (1934, Cal App) 2 Cal App 2d 506, 38
P2d 458, 1934 Cal App LEXIS 1455.
This section does not create a new right and an exclusive remedy to enforce it, but
merely creates a new remedy without excluding the old remedy of ejectment where it
may apply. Mutual Bldg. & Loan Asso. v. Corum (1934, Cal App) 3 Cal App 2d 56, 38
P2d 793, 1934 Cal App LEXIS 1138.
This section does not apply to a quiet title action. Duckett v. Adolph Wexler Bldg. &
Finance Corp. (1935) 2 Cal 2d 263, 40 P2d 506, 1935 Cal LEXIS 321.
This section, which extends the summary remedy of unlawful detainer to certain cases
where property has been sold, has no application where the party in possession raises
complete issues as to title and the right of possession in an action to quiet title in a court
of equity; and under such circumstances the court has power not only to decide the
issues presented but to carry its decrees into effect, and it may grant relief by directing
the issuance of a writ of possession even though another and different remedy might
have been available had an action to quiet the title not been brought. Furlott v. Security-
First Nat’l Bank (1936, Cal App) 14 Cal App 2d 118, 57 P2d 952, 1936 Cal App LEXIS
829.
This section is not unconstitutional. St. George v. Meyer (1937) 9 Cal 2d 161, 69 P2d
993, 1937 Cal LEXIS 373.
The unlawful detainer statutes, including CCP 1161 of this section are purely statutory
remedies created by the legislature; hence, it is competent for the legislature to
determine the scope of the issues that may be tried in such an action. Altman v.
McCollum (1951, Cal App Dep’t Super Ct) 107 Cal App 2d Supp 847, 236 P2d 914,
1951 Cal App LEXIS 1990.
CCP 1161a, governing unlawful detainer proceedings, does not require a defendant to
litigate, in a summary action within the statutory time constraints, a complex fraud claim
involving activities not directly related to the technical regularity of a trustee’s sale. Vella
v. Hudgins (1977) 20 Cal 3d 251, 142 Cal Rptr 414, 572 P2d 28, 1977 Cal LEXIS 192.
So long as a person’s possession of real property is achieved through the landlordtenant
relationship, unlawful detainer may be properly used to regain possession in the
event of the tenant’s default (CCP 1161, 1161a). Neither the relationship nor the
remedy is eliminated by the mere fact that, in addition, there is an executory contract of
sale between the parties under which the rent is credited against the purchase price, in
whole or in part. Provouskivitz v. Snow (1977, Cal App 2d Dist) 74 Cal App 3d 554, 141
Cal Rptr 531, 1977 Cal App LEXIS 1943.
Go to Topic List 3. Service and Effect of Notice
Failure to serve the three-day notice upon the trustor of a trust deed, as well as upon his
subtenant, does not vitiate a proceeding under this section, where the subtenant only
and not the trustor contested the plaintiff’s right to possession as a purchaser under the
trust deed, and such failure may be deemed waived by the subtenant. Mailhes v.
Investors Syndicate (1934) 220 Cal 735, 32 P2d 610, 1934 Cal LEXIS 595.
Service of a notice to quit on subtenants is not jurisdictional. San Jose Pacific Bldg. &
Loan Asso. v. Corum (1934, Cal App) 2 Cal App 2d 276, 37 P2d 866, 1934 Cal App
LEXIS 1418.
Go to Topic List 4. Persons by and Against Whom Action May Be Brought
A purchaser or trustee at an execution sale or under a deed of trust may maintain an
action under this section. Pacific States Sav. & Loan Co. v. Hoffman (1933, Cal App)
134 Cal App 601, 25 P2d 1006, 1933 Cal App LEXIS 180.
In an action to recover possession of premises under this section, after sale under a
deed of trust, a foreign corporation, which made the loan to defendants, was not doing
business in this state in making said loan, where the notes and deed of trust were
executed by defendants in favor of a party secured by defendants’ agent, and said
documents, with draft attached, were forwarded by defendants’ agent to an eastern city
where they were approved and accepted by said foreign corporation, which had
theretofore been a stranger to the transaction, and which, upon such acceptance,
honored the draft and sent the money to the state, payable to the order of defendants.
Kraemer v. Coward (1934, Cal App) 2 Cal App 2d 506, 38 P2d 458, 1934 Cal App
LEXIS 1455.
An action under this section is not restricted to cases covered by 1161 where a tenant
holds possession “in person, or by subtenant,” and may be brought against any person
claiming the right of possession as a successor to or under one whose title is terminated
on sale of the property through a deed of trust, pursuant to CC 2924. Stockton Morris
Plan Co. v. Carpenter (1936, Cal App) 18 Cal App 2d 205, 63 P2d 859, 1936 Cal App
LEXIS 191.
Where a vendor remaining in possession for a limited period as part of the consideration
for the sale of realty failed to surrender possession within two years after completion of
the sale as provided by the contract, unlawful detainer was the proper form of action
and the court was authorized to award treble damages. Moss v. Williams (1948, Cal
App) 84 Cal App 2d 830, 191 P2d 804, 1948 Cal App LEXIS 1278.
Mortgagee is not entitled to possession of property, either before or after default, and he
has no right of entry except when he is vested with title to property on foreclosure and
sale; hence, applying provisions of CC 2924 that transfer of interest in property made
only as security for performance of another act is to be deemed mortgage, plaintiff’s
right to maintain unlawful detainer action was not impaired by existence of deed naming
defendant as grantee of property where such deed recited on its face that it was for
security only and said defendant made no attempt to show there had been any
foreclosure of any security interest asserted by him which would have entitled him to
possession. Byrne v. Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178,
1963 Cal App LEXIS 2099.
Judgment creditor who purchases at his own execution sale and first records sheriff’s
certificate of sale is protected by provisions of CC 1107, 1214, and his rights are
therefore superior to those of holder of unrecorded deed; any interest defendant
acquired by deed in property which is subject of action for unlawful detainer would not
operate as bar to plaintiff’s right to maintain action where defendant’s deed was not
recorded until after plaintiff’s title under execution sale had been perfected and
marshal’s deed to property recorded. Byrne v. Baker (1963, Cal App 2d Dist) 221 Cal
App 2d 1, 34 Cal Rptr 178, 1963 Cal App LEXIS 2099.
A subsequent purchaser from a purchaser at a foreclosure sale was entitled to bring
unlawful detainer actions pursuant to former CCP 1161a, subd. (3) (see now CCP
1161a(b)), against occupants of condominium units; the policy of the statute, to provide
a summary method of ouster when an occupant holds over possession after sale of the
property, would not be served by restricting availability of the action to the original
purchaser at the foreclosure sale. Moreover, the requirements that the subsequent
purchaser prove his acquisition of title from the foreclosure sale purchaser does not
destroy the summary nature of the action. Evans v. Superior Court (1977, Cal App 2d
Dist) 67 Cal App 3d 162, 136 Cal Rptr 596, 1977 Cal App LEXIS 1215.
Homeowners cannot be evicted, consistent with due process guarantees, without being
permitted to raise affirmative defenses which if proved would maintain their possession
and ownership. Accordingly, in an unlawful detainer action brought in municipal court by
a corporation that had acquired title to homeowners’ property through a loan transaction
after the homeowners had defaulted on a prior loan, the homeowners were entitled to
defend the eviction action based on their claims of fraud and related causes which they
asserted; therefore the action necessarily exceeded the jurisdiction of the municipal
court and could not be tried there. Asuncion v. Superior Court of San Diego County
(1980, Cal App 4th Dist) 108 Cal App 3d 141, 166 Cal Rptr 306, 1980 Cal App LEXIS
2038.
The procedure in unlawful detainer is covered in CCP 1161 et seq. The remedy, as
broadened by statutory changes, is available in three situations: (1) landlord against
tenant for unlawfully holding over or for breach of the lease (the traditional and most
important proceeding), (2) owner against servant, employee, agent, or licensee, whose
relationship has terminated, and (3) purchaser at sale under execution, foreclosure, or
power of sale in mortgage or deed of trust, against former owner and possessor. The
statutory situations in which the remedy of unlawful detainer is available are exclusive,
and the statutory procedure must be strictly followed. Berry v. Society of Saint Pius X
(1999, Cal App 2d Dist) 69 Cal App 4th 354, 81 Cal Rptr 2d 574, 1999 Cal App LEXIS
42, review or rehearing denied (1999, Cal) 1999 Cal LEXIS 2245.
Go to Topic List 5. Action Involving Issue of Title and Right to Possession
On a sale under a deed of trust, the purchaser has an immediate right to possession;
and where a party exchanged property for an apartment house encumbered by a deed
of trust, under which notice of default and election to sell was filed before the exchange,
but the sale was conducted after the date of exchange, regardless of the right of
possession prior to foreclosure the party who would have received the property under
the exchange was not entitled to a judgment for possession of it after the sale. Farris v.
Pacific States Auxiliary Corp. (1935) 4 Cal 2d 103, 48 P2d 11, 1935 Cal LEXIS 506.
Proof that he has duly perfected his title by a sale regularly conducted may be made by
the plaintiff in a proceeding under subd 3. Mortgage Guarantee Co. v. Smith (1935, Cal
App) 9 Cal App 2d 618, 50 P2d 835, 1935 Cal App LEXIS 1196.
Matters affecting the validity of a trust deed, primary obligation, or other basic defects in
the title of a plaintiff who purchased at a sale under the trust deed may not be raised by
the defendant in an unlawful detainer action. Cheney v. Trauzettel (1937) 9 Cal 2d 158,
69 P2d 832, 1937 Cal LEXIS 372.
Right to possession alone is involved in a summary proceeding under this section, and
the broad question of title cannot be raised and litigated by a cross-complaint or
affirmative defense. Cheney v. Trauzettel (1937) 9 Cal 2d 158, 69 P2d 832, 1937 Cal
LEXIS 372; Delpy v. Ono (1937, Cal App) 22 Cal App 2d 301, 70 P2d 960, 1937 Cal
App LEXIS 116.
The title of a purchaser at a sale under a trust deed is involved in an action in unlawful
detainer brought by him to the limited extent that he must prove his acquisition of title by
purchase at the sale, and the defendant may attack the sufficiency of the sale. Cheney
v. Trauzettel (1937) 9 Cal 2d 158, 69 P2d 832, 1937 Cal LEXIS 372; Delpy v. Ono
(1937, Cal App) 22 Cal App 2d 301, 70 P2d 960, 1937 Cal App LEXIS 116; Seidell v.
Anglo-California Trust Co. (1942, Cal App) 55 Cal App 2d 913, 132 P2d 12, 1942 Cal
App LEXIS 146.
The validity of a trust deed attacked as part of a conspiracy to evade the Alien Land Law
was an issue relating to title which could not be raised in an unlawful detainer action by
the purchaser at the trust deed sale. Delpy v. Ono (1937, Cal App) 22 Cal App 2d 301,
70 P2d 960, 1937 Cal App LEXIS 116.
Where after a sale of trust property the purchaser sued the trustor in a justice’s court for
unlawful detainer and alleged ownership by virtue of purchase at a trustee’s sale
regularly conducted, denial of such allegations put in issue title to the property and a
judgment which restored possession to such purchaser was sufficient adjudication of
title to render applicable the doctrine of res judicata. Bliss v. Security-First Nat’l Bank
(1947, Cal App) 81 Cal App 2d 50, 183 P2d 312, 1947 Cal App LEXIS 1021.
While the broad question of title cannot be raised in an unlawful detainer action, where
the action is brought under subd 4, the plaintiff must establish the sale of the property
and the title perfected under such sale before recovery can be allowed. Kelliher v.
Kelliher (1950, Cal App) 101 Cal App 2d 226, 225 P2d 554, 1950 Cal App LEXIS 1103.
Where purchaser at trustee’s sale proceeds in unlawful detainer under section, he must
prove his acquisition of title by purchase at sale but is not required to prove more with
respect to title. Abrahamer v. Parks (1956, Cal App 2d Dist) 141 Cal App 2d 82, 296 P2d
341, 1956 Cal App LEXIS 1814.
Under subd 3, title, to the extent required by this section, not only may, but must, be
tried in actions if provisions of statute extending remedy beyond cases where
conventional relation of landlord and tenant exist are to be judicially nullified. Kartheiser
v. Superior Court of Los Angeles County (1959, Cal App 2d Dist) 174 Cal App 2d 617,
345 P2d 135, 1959 Cal App LEXIS 1746.
Question of title is not triable in unlawful detainer action, but only question of right of
possession. Patapoff v. Reliable Escrow Service Corp. (1962, Cal App 2d Dist) 201 Cal
App 2d 484, 19 Cal Rptr 886, 1962 Cal App LEXIS 2618.
Broad questions of title may not be litigated in unlawful detainer action; though
purchaser at execution sale who proceeds in unlawful detainer action under provisions
of this section must prove his acquisition of title by purchase at sale, it is only to this
limited extent, as provided by statute, that title may be litigated in such proceeding.
Byrne v. Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178, 1963 Cal
App LEXIS 2099.
A proceeding for unlawful detainer is summary in character, and ordinarily, only claims
bearing directly on the right of immediate possession are cognizable. Also, crosscomplaints
and affirmative defenses, legal or equitable, are permissible only insofar as
they would, if successful, preclude removal of the tenant from the premises. As a
consequence, a judgment in unlawful detainer usually has very limited res judicata
effect and will not prevent one who is dispossessed from bringing a subsequent action
to resolve questions of title or to adjudicate other legal and equitable claims between
the parties. However, to the limited extent provided by CCP 1161a, subd. 3, providing
that a person who continues possession of real property may be removed where the
property has been duly sold and the title of the sale has been duly perfected, title may
be litigated in such a proceeding. Vella v. Hudgins (1977) 20 Cal 3d 251, 142 Cal Rptr
414, 572 P2d 28, 1977 Cal LEXIS 192.
In an unlawful detainer action against occupants of condominium units by a subsequent
purchaser from a purchaser at a foreclosure sale, pursuant to CCP 1161a, subd. (3),
questions of title unrelated to compliance with Civ. Code, 2924, concerning a power of
sale contained in a trust deed, and issues which would have been unavailable to the
occupants’ predecessor in interest, the maker of the trust deed, could not be raised as
defenses, but would have to be litigated in a quiet title action. Since such issues were
not cognizable in the unlawful detainer action, the judgment in that action would not be
res judicata as to those issues, nor would the pendency of the unlawful detainer action
be a bar to the simultaneous maintenance of a quiet title action. Evans v. Superior Court
(1977, Cal App 2d Dist) 67 Cal App 3d 162, 136 Cal Rptr 596, 1977 Cal App LEXIS
1215.
In an action for unlawful detainer, the trial court erred in dismissing the tenants’
affirmative defense that raised the issue of title, where the landlord had previously filed
an action seeking declaratory relief and quiet title thereby putting the title in issue.
Greenhut v. Wooden (1982, Cal App 2d Dist) 129 Cal App 3d 64, 180 Cal Rptr 786,
1982 Cal App LEXIS 1304.
Go to Topic List 6. Procedure
Adoption of specific findings on each detail of the proceeding for the sale of the property
under a deed of trust were not necessary, where the court found that the defendant,
who died pending the action, took a deed and possession with full knowledge that his
grantors had no title, that he was in unlawful possession, and had no right thereto at any
time. Stockton Morris Plan Co. v. Carpenter (1936, Cal App) 18 Cal App 2d 205, 63 P2d
859, 1936 Cal App LEXIS 191.
A judgment in unlawful detainer is res adjudicata in a subsequent suit to set aside a
trustee’s deed on the ground of irregularity in the foreclosure proceedings, where the
unlawful detainer action brought by the purchaser at the trust deed sale involved the
same issues which were determined in favor of the regularity of the foreclosure
proceedings and the validity of the deed. Seidell v. Anglo-California Trust Co. (1942, Cal
App) 55 Cal App 2d 913, 132 P2d 12, 1942 Cal App LEXIS 146.
It was improper to grant summary judgment in an unlawful detainer action instituted
under this section, where a supporting affidavit related facts concerning a transfer of title
not within the personal knowledge of the plaintiff concerning which he was incompetent
to testify. Kelliher v. Kelliher (1950, Cal App) 101 Cal App 2d 226, 225 P2d 554, 1950
Cal App LEXIS 1103.
Municipal court has jurisdiction of an unlawful detainer action by the purchaser at a
trustee’s sale against the trustor where the purchaser alleges the reasonable rental
value of the premises to be $100 a month and seeks damages for less than two
months. Karrell v. First Thrift of Los Angeles (1951, Cal App) 104 Cal App 2d 536, 232
P2d 1, 1951 Cal App LEXIS 1656.
Facts that owner of realty was not in default under trust deed executed by her, that the
note secured by such instrument had been fully paid, and that she had no notice that
property was to be sold were available to her as a defense in a prior unlawful detainer
action brought against her by a successor of the purchaser at a trust deed sale, and
having failed to appear in that action she is precluded from asserting such matters in a
subsequent suit instituted by her for a decree setting aside the deed from the trustee to
the original purchaser, the sale to such purchaser and his successor, and the judgment
in the unlawful detainer action. Freeze v. Salot (1954, Cal App) 122 Cal App 2d 561, 266
P2d 140, 1954 Cal App LEXIS 1085.
In summary proceeding of unlawful detainer, only the right to possession is involved, but
when purchaser at trustee sale proceeds under this section, title may be litigated to
limited extent that purchaser must prove his acquisition of title by purchase at sale.
Cruce v. Stein (1956, Cal App 2d Dist) 146 Cal App 2d 688, 304 P2d 118, 1956 Cal App
LEXIS 1522.
Go to Topic List 7. –Pleadings
Conclusions of law and not facts are stated by a complaint alleging that the plaintiff
became the owner in fee and entitled to the possession of the premises by virtue of a
sale under CC 2924, where nothing more about the deed and sale is alleged. American
Nat’l Bank v. Johnson (1932, Cal App Dep’t Super Ct) 124 Cal App 783, 124 Cal App 4th
Supp 783, 11 P2d 916, 1932 Cal App LEXIS 6.
Although a complaint is insufficient as a statement of facts to bring the case within CCP
1161 where the answer shows that the fact and validity of the sale under the deed of
trust is made an issue by the defendants, they cannot on appeal question the
sufficiency of the complaint. Harris v. Seidell (1934, Cal App) 1 Cal App 2d 410, 36 P2d
1104, 1934 Cal App LEXIS 1289.
Taking of the necessary steps to a valid sale is sufficiently alleged by a complaint under
subd 3 alleging that the plaintiff duly performed and caused to be performed all the
conditions on his part required by CC 2924, and by other applicable laws and
provisions of the deed of trust. San Jose Pacific Bldg. & Loan Asso. v. Corum (1934, Cal
App) 2 Cal App 2d 276, 37 P2d 866, 1934 Cal App LEXIS 1418.
A complaint based on subd 3, substantially in the language of the statute is sufficient.
Quinn v. Mathiassen (1935) 4 Cal 2d 329, 49 P2d 284, 1935 Cal LEXIS 547.
An allegation of due compliance with CC 2924 is sufficient without alleging compliance
in haec verba. Quinn v. Mathiassen (1935) 4 Cal 2d 329, 49 P2d 284, 1935 Cal LEXIS
547.
In action by lessee for damages for eviction, where it was obvious from allegations of
the complaint that the parties to the lease intended that the lessee should not be
disturbed in its possession and use of the premises by the foreclosure of a trust deed or
mortgage securing a bond issue, and the complaint alleged facts sufficient to show the
assertion of a paramount title and right to possession by the purchaser on foreclosure
under said deed of trust, the allegations of eviction were sufficient against demurrer.
Stillwell Hotel Co. v. Anderson (1935) 4 Cal 2d 463, 50 P2d 441, 1935 Cal LEXIS 569.
In action in unlawful detainer for rent and possession of property held in part by oral
agreement and in part under a written lease, there was no merit in the contention that
the property covered by the written lease was not sufficiently described in the complaint
where the description was sufficient to enable the appealing defendant to enter on the
same and make avail thereof, and, at the trial, said defendant testified that at all times
he understood what land was referred to both by the lease and the notice to pay or
surrender possession; and, under the circumstances, the addition in the lease of the
word “station,” after the name of a town near which the land was located, did not make
the description doubtful or imperfect. Mendoza v. Castiglioni (1936, Cal App) 14 Cal App
2d 710, 58 P2d 939, 1936 Cal App LEXIS 951.
A cause of action under subd 3 is stated by a complaint alleging that the property was
sold to the original plaintiff in accordance with the terms of a deed of trust executed by
the former owners, and in accordance with CC 2924, where a supplemental complaint
details the proceedings required by CC 2924, including notice of default. Stockton
Morris Plan Co. v. Carpenter (1936, Cal App) 18 Cal App 2d 205, 63 P2d 859, 1936 Cal
App LEXIS 191.
An allegation of due compliance with CC 2924, as authorized by 459, is not merely a
conclusion of law, but an allegation of fact which, if not denied, must be deemed to have
been admitted. Bank of America Nat’l Trust & Sav. Asso. v. McLaughlin Land &
Livestock Co. (1940, Cal App) 40 Cal App 2d 620, 105 P2d 607, 1940 Cal App LEXIS
150, cert den (1941) 313 US 571, 61 S Ct 958, 85 L Ed 1529, 1941 US LEXIS 686.
An unlawful detainer proceeding is summary in character, and use of cross-complaint in
such case would frustrate remedy and render it inadequate. Tide Water Associated Oil
Co. v. Superior Court of Los Angeles County (1955) 43 Cal 2d 815, 279 P2d 35, 1955
Cal LEXIS 387.
It is proper to sustain, without leave to amend, demurrer to a complaint seeking to set
aside a sale under a trust deed, based on alleged failure to comply with the legal
requirements as to notice, where the trust deed, which was made a part of the
complaint, discloses a provision making the recital in the trustee’s deed conclusive, and
where such deed, also made part of the complaint, recites that sale and notice complied
with the law. Pierson v. Fischer (1955, Cal App 3d Dist) 131 Cal App 2d 208, 280 P2d
491, 1955 Cal App LEXIS 2037.
Complaint in unlawful detainer against defaulting trustors of trust deed states facts
sufficient to constitute cause of action where it alleges that plaintiff, to whom property
was sold by trustee, “is owner and entitled to possession of,” property, and where there
is attached to complaint as exhibit a copy of trustee’s deed which recites that default
was made in payment due on note and obligation secured by trust deed specified them.
Abrahamer v. Parks (1956, Cal App 2d Dist) 141 Cal App 2d 82, 296 P2d 341, 1956 Cal
App LEXIS 1814.
In unlawful detainer action based on sale of property by defendants to plaintiff and
agreement to vacate property by specified date “if it is possible,” it is not necessary to
allege facts showing that it was possible for defendants to vacate premises by date set,
and complaint alleging that real property involved had been duly sold to plaintiff and title
under sale had been duly perfected, that plaintiff was entitled to possession, that threeday
notice to quit premises had been personally served on defendants, and that they
held over and continued in possession after three-day notice had been served, is
sufficient. Johnson v. Hapke (1960, Cal App 2d Dist) 183 Cal App 2d 255, 6 Cal Rptr
603, 1960 Cal App LEXIS 1746.
Go to Topic List 8. –Defenses
Equitable defense of cancellation of escrow and withdrawal of defendant’s consent to
transfer before made is properly raised in action by vendee for removal of vendor from
premises and award of damages for withholding possession. Kessler v. Bridge (1958,
Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS
1814.
Equitable defense of delivery of deed to plaintiff in violation of escrow is properly raised
in action by vendee for removal of vendor from premises and award of damages for
withholding possession. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App
2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Equitable defense of failure of consideration is properly raised in action by vendee for
removal of vendor from premises and award of damages for withholding possession.
Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d
241, 1958 Cal App LEXIS 1814.
Equitable defense of fraud in inducement for relinquishment of property is properly
raised in action by vendee for removal of vendor from premises and award of damages
for withholding possession. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal
App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Equitable defense of rescission of transaction prior to suit is properly raised in action by
vendee for removal of vendor from premises and award of damages for withholding
possession. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp
837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Equitable defense of unauthorized unilateral change in escrow instructions by plaintiff to
effect delivery of deed is properly raised, in action by vendee for removal of vendor from
premises and award of damages for withholding possession. Kessler v. Bridge (1958,
Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS
1814.
Summary proceeding in unlawful detainer is subject to control of equity in proper case;
hence, if defendant in such action possessed valid equitable rights in property that
would make it inequitable for plaintiff to proceed, defendant could, by seeking injunction
in quiet title suit pending between parties, prevent plaintiff from proceeding. Byrne v.
Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178, 1963 Cal App LEXIS
2099.
In an unlawful detainer action under CCP 1161a, subd. (3), by a subsequent purchaser
from a purchaser at a foreclosure sale, the subsequent purchaser may not claim the
status of a bona fide purchaser without notice against one in open and notorious
possession of the premises, so as to cut off defenses which would have been available
to the occupant against the original purchaser. Evans v. Superior Court (1977, Cal App
2d Dist) 67 Cal App 3d 162, 136 Cal Rptr 596, 1977 Cal App LEXIS 1215.
The statutory remedies for recovery of possession and of unpaid rent (CCP
1159-1179a; Civ. Code, 1951 et seq.) do not preclude a defense based on municipal
rent control legislation enacted pursuant to the police power imposing rent ceilings and
limiting the grounds for eviction for the purpose of enforcing those rent ceilings. Thus,
CCP 1161 (unlawful detainer), does not preempt a defense based upon local rent
control legislation. Also, since 1161 does not preempt such a defense, it follows that
CCP 1161a (removal of person holding over after notice to quit), does not preempt such
a defense. Accordingly, 1161a did not preempt that portion of a local rent stabilization
ordinance limiting the grounds for eviction. Passage of such legislation by a local
government was an exercise of police power which substantively placed a limitation on
an owner’s property rights. Gross v. Superior Court (1985, Cal App 1st Dist) 171 Cal
App 3d 265, 217 Cal Rptr 284, 1985 Cal App LEXIS 2408.
The county’s motion for summary judgment on plaintiff’s claim of excessive force in
evicting her should be granted, absent evidence the county had a policy or custom other
than to lawfully enforce writs of possession. Under CCP 1161a, a writ of possession
may be effectuated without a warrant; peace officers may obtain possession through
eviction under a valid writ of possession. Busch v. Torres (1995, CD Cal) 905 F Supp
766, 1995 US Dist LEXIS 19998.
Go to Topic List 9. –Evidence
To prevail, in action by vendee against vendor for removal of vendor from premises and
award of damages for withholding possession, plaintiff must prove affirmatively that
property was “duly sold” and that “the title under the sale has been duly perfected,” and,
contrary to rule applying to unlawful detainer where landlord-tenant relationship is
involved, title thus becomes issue. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161
Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
In unlawful detainer action, property involved is shown to have been duly sold by
defendants to plaintiff, within meaning of CCP 1161, by evidence that at request of
defendant husband, joined in by defendant wife as evidenced by her active
participation, both executed escrow constructions and grant deed conveying title to
plaintiff, and that no material representations were made by plaintiff to defendants
concerning escrow instructions, reconveyance of second trust deed, grant deed or
general agreement of parties. Johnson v. Hapke (1960, Cal App 2d Dist) 183 Cal App
2d 255, 6 Cal Rptr 603, 1960 Cal App LEXIS 1746.
In unlawful detainer action based on sale of property to plaintiff and agreement by
defendants to vacate premises by stated date “if it is possible,” such agreement
conditioned defendants’ performance on event that was within their control, placing
collateral duty on them to bring about happening of event of vacating premises within
reasonable time, and placing burden on them to show any reason why it was impossible
to vacate on or before agreed date, and where such burden was not fulfilled finding that
it was possible for defendants to vacate on or before agreed date was supported.
Johnson v. Hapke (1960, Cal App 2d Dist) 183 Cal App 2d 255, 6 Cal Rptr 603, 1960
Cal App LEXIS 1746.
In fixing plaintiff’s damages for unlawful detention of real property purchased at a nonjudicial
sale under a trust deed, the trial court did not err in considering, in part, the rents
received by defendant during the period of unlawful detention. The proper measure of
damages in an unlawful detainer action is the detriment to the owner because of the
detention of the property, and the detriment to plaintiff caused by defendant’s unlawful
detention was measurable in the amount of a reasonable rental value that plaintiff might
have realized had it not been denied possession. MCA, Inc. v. Universal Diversified
Enterprises Corp. (1972, Cal App 2d Dist) 27 Cal App 3d 170, 103 Cal Rptr 522, 1972
Cal App LEXIS 838


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Categories : I Have a Plan


Self-Help Eviction: Don’t Even Think About It! Wrongful Foreclosure=Wrongful eviction

24 06 2010

Posted on May 24, 2010 by Julie Brook

Here’s an all-too-common scenario these days: A property goes into foreclosure, the owner who buys the foreclosed property wants to evict the current tenants, who are living there lawfully. The owner decides to skirt the normal legal processes and engage in a self-help eviction. This is a very risky and potentially illegal course of action! Additionally when it is the lender evicting. If the foreclosure was Wrongful that makes the eviction Wrongful and substantial damages may be available as against the biggest banks in the world.

A self-help eviction can take many forms: changing the lock on a unit, adding a lock without providing keys to the tenant, cutting off utilities, and forcibly entering the rental unit and refusing to permit the tenant to reenter. These practices have one thing in common: to oust the tenant from possession without complying with the legal requirements for eviction.

California law is clear that an owner who has purchased property at a foreclosure sale cannot take possession after the foreclosure unless the occupants’ consent has been freely obtained or a judge has awarded possession following a court proceeding. See CCP §§1159-1179a. Also note that the law governing evictions after foreclosure is rapidly changing. In rent-controlled cities, the eviction of tenants of the borrower following foreclosure is prohibited unless the tenant defaults.

Unlawful self-help by a landlord or owner can result in

* Criminal penalties (see Pen C §§418, 602.5), and
* Actual and punitive damages (see Jordan v Talbot (1961) 55 C2d 597, 12 CR 488).

OwnerSecrets.com warns that self-help evictions can result in suits for the common law intentional torts of conversion, trespass to chattels, and trespass.

Self-help is never a good choice for evictions. Instead, evictions should always be handled through legal processes, generally by an unlawful detainer action, i.e., a fast, summary procedure that is generally limited to the issues of possession of the premises and associated damages.

On how to legally conduct a lawful eviction, see CEB’s online book Handling Unlawful Detainers and Landlord-Tenant Practice book (evictions following foreclosure are governed by both state and federal law and are covered in chap 8 of that book). On defending evictions, see CEB’s Eviction Defense Manual.

Also, check out our June programs on Representing Residential Landlords and Tenants in Unlawful Detainer Actions, which will be available On Demand beginning June 29th.


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Tags: wrongful foreclosure, wrongful eviction
Categories : eviction


Challenges to Foreclosure Docs Reach a Fever Pitch

20 06 2010

American Banker | Wednesday, June 16, 2010

By Kate Berry

Correction: An earlier version of this story misidentified the court
where Judge J. Michael Traynor presides. It is a Florida state court,
not a federal one. An editing error was to blame.

The backlash is intensifying against banks and mortgage servicers that
try to foreclose on homes without all their ducks in a row.

Because the notes were often sold and resold during the boom years, many
financial companies lost track of the documents. Now, legal officials
are accusing companies of forging the documents needed to reclaim the
properties.

On Monday, the Florida Attorney General’s Office said it was
investigating the use of “bogus assignment” documents by Lender
Processing Services Inc. and its former parent, Fidelity National
Financial Inc. And last week a state judge in Florida ordered a hearing
to determine whether M&T Bank Corp. should be charged with fraud after
it changed the assignment of a mortgage note for one borrower three
separate times.

“Mortgage assignments are being created out of whole cloth just for the
purposes of showing a transfer from one entity to another,” said James
Kowalski Jr., an attorney in Jacksonville, Fla., who represents the
borrower in the M&T case.

“Banks got away from very basic banking rules because they securitized
millions of loans and moved them so quickly,” Kowalski said.

In many cases, Kowalski said, it has become impossible to establish when
a mortgage was sold, and to whom, so the servicers are trying to
recreate the paperwork, right down to the stamps that financial
companies use to verify when a note has changed hands.

Some mortgage processors are “simply ordering stamps from stamp makers,”
he said, and are “using those as proof of mortgage assignments after the
fact.”

Such alleged practices are now generating ire from the bench.

In the foreclosure case filed by M&T in February 2009, the bank
initially claimed it lost the underlying mortgage note, and then later
claimed the mortgage was owned by First National Bank of Nevada, which
the Federal Deposit Insurance Corp. shut down in 2008, before the
foreclosure had been started.

M&T then claimed Wells Fargo & Co. owned the note, “contradicting all of
its previous claims,” according to Circuit Court Judge J. Michael
Traynor, who ordered the evidentiary hearing last week into whether M&T
perpetrated a fraud on the court.

“The court has been misled by the plaintiff from the beginning,” Judge
Traynor said in his order, which also dismissed M&T’s foreclosure action
with prejudice.

The Marshall Watson law firm in Fort Lauderdale, Fla., which represents
M&T in the case, declined to comment and the bank said it could not
comment.

In a notice on its website, the Florida attorney general said it is
examining whether Docx, an Alpharetta, Ga., unit of Lender Processing
Services, forged documents so foreclosures could be processed more
quickly.

“These documents are used in court cases as ‘real’ documents of
assignment and presented to the court as so, when it actually appears
that they are fabricated in order to meet the demands of the institution
that does not, in fact, have the necessary documentation to foreclose
according to law,” the notice said.

Docx is the largest lien release processor in the United States working
on behalf of banks and mortgage lenders.

Peter T. Sadowski, an executive vice president and general counsel at
Fidelity National in Fort Lauderdale, said that more than a year ago his
company began requiring that its clients provide all paperwork before
the company would process title claims.

Michelle Kersch, a spokeswoman for Lender Processing Services, said the
reference on the Florida attorney general’s website to “bogus
assignments” referred to documents in which Docx used phrases like
“bogus assignee” as placeholders when attorneys did not provide specific
pieces of information.

“Unfortunately, on occasion, incomplete documents were inadvertently
recorded before the missing information was obtained,” Kersch said. “LPS
regrets these errors and the use of this particular placeholder
phrasing.”

The company, which was spun off from Fidelity National two years ago, is
cooperating with the attorney general and conducting its own internal
investigation.

Lender Processing Services disclosed in its annual report in February
that federal prosecutors were reviewing the business processes of Docx.
The company said it was cooperating with that investigation.

“This is systemic,” said April Charney, a senior staff attorney at
Jacksonville Area Legal Aid and a member of the Florida Supreme Court’s
foreclosure task force.

“Banks can’t show ownership for many of these securitized loans,”
Charney continued. “I call them empty-sack trusts, because in the rush
to securitize, the originating lender failed to check the paper trial
and now they can’t collect.”

In Florida, Georgia, Maryland and other states where the foreclosure
process must be handled through the courts, hundreds of borrowers have
challenged lenders’ rights to take their homes. Some judges have
invalidated mortgages, giving properties back to borrowers while lenders
appeal.

In February, the Florida state Supreme Court set a new standard
stipulating that before foreclosing, a lender had to verify it had all
the proper documents. Lenders that cannot produce such papers can be
fined for perjury, the court said.

Kowalski said the bigger problem is that mortgage servicers are working
“in a vacuum,” handing out foreclosure assignments to third-party firms
such as LPS and Fidelity.

“There’s no meeting to get everybody together and make sure they have
their ducks in a row to comply with these very basic rules that banks
set up many years ago,” Kowalski said. “The disconnect occurs not just
between units within the banks, but among the servicers, their bank
clients and the lawyers.”

He said the banking industry is “being misserved,” because mortgage
servicers and the lawyers they hire to represent them in foreclosure
proceedings are not prepared.

“We’re tarring banks that might obviously do a decent job, and the banks
are complicit because they hired the servicers,” Kowalski said.


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Tags: Foreclosure, mortgage meltdown, stop foreclosure, truth in lending
Categories : Foreclosure, Predatory Lending, stop foreclosure, truth in lending


Tort damges for Wrongful Foreclosure

19 06 2010

It will be interesting to see how the damages in tort cases develop with the holding in the Mabry case.The case holds that tender is not necessary. Most likely contract damages would be waived because the value of the property lost most likely is less than the loan. Soooo…. whats left tort damage. In tort what is the value of a case where the lender refuses to, and factually fails, to comply with 2923.5 and in good faith negotiate with a homeowner. Bad Faith ??? punitive ??? Class action tort ??? intentional infliction of emotional distress??? what’s more stressful than being evicted ??? I have one client who had to undress in front of a Marshall so she could be put out of her home !!!

Munger v. Moore (1970) 11 Cal.App.3d 1 , 89 Cal.Rptr. 323
[Civ. No. 25853. Court of Appeals of California, First Appellate District, Division One. September 3, 1970.]

MAYNARD MUNGER, JR., Plaintiff and Respondent, v. ROBERT MOORE, Defendant and Appellant

(Opinion by Molinari, P. J., with Sims and Elkington, JJ., concurring.) [11 Cal.App.3d 2]

COUNSEL

Bruce Oneto for Defendant and Appellant.

Field, DeGoff & Rieman and Sidney F. DeGoff for Plaintiff and Respondent. [11 Cal.App.3d 5]

OPINION

MOLINARI, P. J.

Defendant appeals from a judgment in the sum of $30,000 plus accrued interest entered in favor of plaintiff after a trial by the court upon a supplemental complaint for tortious damages for wrongfully effecting a trustee’s sale of a parcel of real property. fn. 1

The facts, essentially undisputed, are as follows: In 1959 defendant was the owner of a parcel of unimproved real property situated in Santa Clara County. Defendant exchanged such property with Mr. and Mrs. Atwill for a parcel in Los Angeles. The Atwills then sold the Santa Clara property to Geld, Inc. Geld gave the Atwills and defendant notes and executed a deed of trust as security. Defendant’s note was for $13,393.41, while the Atwills’ was for $36,606.59. Thus, the total encumbrance against the property was $50,000. Valley Title Company (hereinafter “Valley”), a codefendant below, was named trustee.

Geld, Inc. then granted the subject property to one Reichert. Reichert, who intended to build an apartment complex on the parcel, executed a second deed of trust in favor of Home Foundation Savings and Loan (hereafter “Home”) as security for a $283,000 building loan from the latter. Shortly thereafter, the Atwills and defendant agreed with Home to subordinate their deed of trust to that of Home. Accordingly, the Atwill-defendant deed of trust, although first in time, became second in priority.

Plaintiff then entered the picture by lending Reichert some $15,000 for construction of the apartment building. This loan was represented by a promissory note in the face value of $18,000 and was secured by a third deed of trust on the subject parcel. Shortly thereafter, plaintiff advanced an additional sum of $10,000 to Reichert to be used to defray costs in the construction of said apartment building. In exchange for this loan plaintiff received a grant deed to the property from Reichert, but gave Reichert an option to repurchase the property for the sum of $25,000.

Subsequently, the payments on the Atwill-defendant note became in default. Accordingly, defendant caused to be published a notice of default and intent to sell. Apprised of such default notice, plaintiff duly and timely tendered to Valley the sum of $4,000 representing the sum needed [11 Cal.App.3d 6] to cure the default. Contrary to its advice to defendant and based upon his insistence, Valley refused plaintiff’s tender. Defendant advised Valley that the note to Home, fn. 2 which was secured by the first deed of trust, was also in default and therefore plaintiff’s tender was an insufficient cure of the default. Accordingly, the trustee’s sale was had on May 22, 1963, and defendant, along with the Atwills, purchased the property at such sale for $57,920.94. Defendant held the property for several years and in 1965 “exchanged” the property for a price of $475,000.

On appeal defendant makes two contentions: (1) That the trial court used the wrong standard for measuring damages; and (2) that in any event there was no evidentiary support for the court’s finding as to damages. We observe here that no contention is made that damages may not be assessed where a trustee illegally, fraudulently or oppressively sells property under a power of sale contained in a deed of trust. We note that in California the traditional method by which such a sale is attacked is by a suit in equity to set aside the sale. (See Taliaferro v. Crola, 152 Cal.App.2d 448, 449-450 [313 P.2d 136]; Crummer v. Whitehead, 230 Cal.App.2d 264, 266, 268 [40 Cal.Rptr. 826]; Central Nat. Bank v. Bell, 5 Cal.2d 324, 328 [54 P.2d 1107].)

The only California case which has come to our attention involving an analogous situation is Murphy v. Wilson, 153 Cal.App.2d 132 [314 P.2d 507]. In that case the plaintiff and the defendant entered into an agreement whereby the defendant loaned $50,000 to the plaintiff who, pursuant to the agreement, placed a bill of sale to and chattel mortgage on certain personalty and a deed to his home in escrow and agreed that if he did not pay the sum of $75,000 to the defendant before a certain date the conveyances would go to the defendant. The defendant subsequently took possession of the property and sold it. The plaintiff then brought a declaratory relief action to have the conveyances adjudged to be mortgages. The trial court found that the agreement was in fact a mortgage loan and that since the defendant had not foreclosed the chattel mortgage and had sold the home outright he was liable to the plaintiff for damages. (At p. 134.) The reviewing court, although it disagreed with the computation of the damages, upheld the trial court’s determination that the plaintiff was entitled to damages. The appellate court held that the defendant had converted the property to his own use and that he was required to pay to the plaintiff the fair market value of the property converted as of the date he took it into his possession together with interest on the value of the property converted. (At pp. 135-136.) [11 Cal.App.3d 7]

In analyzing the holding in Murphy we observe that it makes no distinction between the real and personal property and holds that both had been converted. We note here that it is generally acknowledged that conversion is a tort that may be committed only with relation to personal property and not real property. (See Graner v. Hogsett, 84 Cal.App.2d 657, 662 [191 P.2d 497]; Reynolds v. Lerman, 138 Cal.App.2d 586, 591 [292 P.2d 559]; Vuich v. Smith, 140 Cal.App. 453, 455 [35 P.2d 365]; 48 Cal.Jur.2d, Trover and Conversion, § 8; but see Katz v. Enos, 68 Cal.App.2d 266, 269 [156 P.2d 461] where an action was brought for what was there stated as an action “to recover damages for the alleged wrongful conversion by her of 42 acres of land” and damages were assessed.) fn. 3

Since conversion is a tort which applies to personal property, we disagree with the Murphy case to the extent that it purports to indicate that there may be a conversion of real property. fn. 4 We are inclined, however, to believe that with respect to real property the Murphy case was articulating a rule that has been applied in other jurisdictions. [1] That rule is that a trustee or mortgagee may be liable to the trustor or mortgagor for damages sustained where there has been an illegal, fraudulent or wilfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust. (See Davenport v. Vaughn, 193 N.C. 646 [137 S.E. 714, 716]; Sandler v. Green, 287 Mass. 404 [192 N.E. 39, 40]; Edwards v. Smith (Mo.) 322 S.W.2d 770, 776; Dugan v. Manchester Federal Sav. & Loan Assn., 92 N.H. 44 [23 A.2d 873, 876]; Harper v. Interstate Brewery Co., 168 Ore. 26 [120 P.2d 757, 764]; Black v. Burd (Tex. Civ. App.) 255 S.W.2d 553, 556; Holman v. Ryon (D.C. App.) 56 F.2d 307, 310-311; Royall v. Yudelevit, 268 F.2d 577, 580 [106 App. D.C. 1].) fn. 5 This rule of liability is also applicable in California, we believe, upon the basic principle of tort liability declared in the Civil Code that every person is bound by law not to injure the person or property of another or infringe on any of his rights. (Civ. Code, § 1708; see Dillon v. Legg, 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].)

Accordingly, since the subject tort liability inures to the benefit of a [11 Cal.App.3d 8] mortgagor or trustor, it also inures to the benefit of the successor in interest to the trust property. [2] Pursuant to Civil Code section 2924c, such successor has the statutory right to cure a default of the obligation secured by a deed of trust or mortgage within the time therein prescribed. Plaintiff, therefore, as Reichert’s successor in interest in the trust property was entitled to tender the amount due to cure any default in the obligation to defendant and to institute the instant action for damages for the illegal sale which resulted from the failure to accept the timely tender.

Before proceeding to discuss the proper measure of damages we observe that in the instant case plaintiff has brought the instant action against both the trustee and the beneficiary of the deed of trust. [3] Since the trustee acts as an agent for the beneficiary, there can be no question that liability for damages may be imposed against the beneficiary where, as here, the trustee in exercising the power of sale is acting as the agent of the beneficiary. (See Davenport v. Vaughn, supra, 137 S.E. 714, 716; Edwards v. Smith, supra, 322 S.W.2d 770, 777.) In the instant case the trial court made unchallenged findings that the trustee Valley was acting as the agent for and pursuant to the instructions and directions of defendant and the Atwills, the beneficiaries of the subject deed of trust.

Adverting to the measure of damages we observe that defendant asserts that the proper measure in the instant case is that which applies to damages occasioned by the wrongful loss of security. fn. 6 In this context defendant argues that plaintiff has only suffered a loss of security for the promissory notes executed and delivered by Reichert to plaintiff. In essence defendant is contending that the deed absolute in form from Reichert to Plaintiff was in fact a mortgage because it was intended as security for a debt. (See Civ. Code, § 2924.) In considering this contention we note initially that the trial court found that plaintiff purchased the subject property from Reichert and that such purchase was evidenced by a grant deed given for a valuable consideration.

The record is silent as to whether the issue was tendered below that defendant had no standing to make the claim that the subject deed was in fact a mortgage. [4] As we apprehend the rule declaring that a deed absolute may be shown to have been intended as a mortgage, it applies only to the parties to the transaction and those claiming under them. (See Jackson v. Lodge, 36 Cal. 28, 40 [overruled on another ground by Hughes v. Davis, 40 Cal. 117]; Ahern v. McCarthy, 107 Cal. 382, 383-384 [11 Cal.App.3d 9] [40 P. 482]; Taylor v. McClain, 60 Cal. 651, 652; Bell v. Pleasant, 145 Cal. 410, 417-418 [78 P. 957]; 33 Cal.Jur.2d, Mortgages and Trust Deeds, §§ 54, 56 and 57.) Accordingly, Reichert and those claiming under him were entitled to assert that the deed was in fact a mortgage and that plaintiff acquired merely a lien. They could not, however, make this assertion against an innocent purchaser or encumbrancer from plaintiff since such purchaser or encumbrancer was entitled, on the theory of estoppel, to claim that he was the real owner of the property. (See Civ. Code, § 2925; Carpenter v. Lewis, 119 Cal. 18, 21 [50 P. 925]; Bell v. Pleasant, supra; Jackson v. Lodge, supra.) [5] Here defendant was not claiming under any of the parties to the subject transaction, but he was a stranger to it. Moreover, since defendant’s encumbrance was prior in time and superior to Reichert’s interest, defendant’s interest was unaffected by the transaction between Reichert and plaintiff.

Assuming arguendo that defendant has standing to challenge the nature of the deed from Reichert to plaintiff, our inquiry would be directed, in view of the court’s finding, to whether the subject instrument was in fact a deed and to whether this finding is supported by substantial evidence. We shall proceed to do so mindful that in making this determination our power begins and ends in ascertaining whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784 [59 Cal.Rptr. 141, 427 P.2d 805]; Brewer v. Simpson, 53 Cal.2d 567, 583 [2 Cal.Rptr. 609, 349 P.2d 289].)

[6] We first observe that Civil Code section 1105 provides that “A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.” This statute establishes a rebutable presumption. (Evid. Code, § 602.) Such presumption is one affecting the burden of proof since it is a presumption which, in addition to the policy of facilitating the trial of actions, is established to implement the public policy favoring the stability of titles to property. (See Evid. Code, § 604, and Law Revision Com. comment thereto.) [7] Accordingly, the effect of this presumption was to impose upon defendant the burden of proving the nonexistence of the presumed fact, i.e., that the grant deed conveyed a fee simple title to plaintiff. (See Evid. Code, § 606.) fn. 7 This burden required that defendant [11 Cal.App.3d 10] produce clear and convincing proof. (Beeler v. American Trust Co., 24 Cal.2d 1, 7 [147 P.2d 583]; Spataro v. Domenico, 96 Cal.App.2d 411, 413 [216 P.2d 32]; Cavanaugh v. High, 182 Cal.App.2d 714, 718 [6 Cal.Rptr. 525]; Borton v. Joslin, supra, 88 Cal.App. 515, 520 [263 P. 1033]; see Legislative Committee comment to Evid. Code, § 606.) [8] The question whether the evidence offered to change the ostensible character of the instrument carries that much weight is for the trial judge and not the court of review. (Beeler v. American Trust Co., supra; Cavanaugh v. High, supra; Spataro v. Domenico, supra.) “On appeal the question is governed by the substantial evidence rule like any other issue of fact.” (Cavanaugh v. High, supra, at p. 718; Beeler v. American Trust Co., supra; Borton v. Joslin, supra.)

[9] In the present case there is conflicting evidence on the cardinal issue of the intent of the parties in deeding the property. Although there was testimony that plaintiff took the grant deed as better security for his loan, plaintiff testified that when he made the second loan to Reichert, plaintiff, at Reichert’s instructions, paid the proceeds of the loan directly to the contractor who was constructing the apartment building; that Reichert gave plaintiff a grant deed which he recorded; and that Reichert’s indebtedness to plaintiff was cancelled. Under familiar appellate principles we must, where there is conflicting evidence, accept as established that evidence which is favorable to plaintiff. That evidence is sufficient to sustain the trial court’s finding upon the conclusion that defendant has failed to overcome by clear and convincing evidence the presumption which arises from the face of the deed. We note here that an important consideration is whether plaintiff’s notes evidencing the indebtedness from Reichert survived the conveyance. (See Borton v. Joslin, supra, 88 Cal. App. 515, 518; Cavanaugh v. High, supra, 182 Cal.App.2d 714, 718; Spataro v. Domenico, supra, 96 Cal.App.2d 411, 416.) Here, there was evidence adduced by plaintiff’s testimony that there was no survival of the indebtedness upon the execution and delivery of the grant deed. This circumstance is strongly indicative of a grant rather than a mortgage. (Beeler v. American Trust Co., supra, 24 Cal.2d 1, 17-18; Cavanaugh v. High, supra, 182 Cal.App.2d 714, 718; Workmon Constr. Co. v. Weirick, supra, 223 Cal.App.2d 487, 492.)

Having determined that plaintiff was not a security holder but the owner of the subject property, we proceed to inquire as to the proper standard for measuring plaintiff’s loss. In making this inquiry we first note that the trial court found that defendant, in instructing Valley to foreclose upon the subject real property, did so intentionally, wrongfully and pursuant to an intentional design with regard to plaintiff and that because of such conduct plaintiff lost all of his right, title and interest in [11 Cal.App.3d 11] said property, damaging plaintiff in the sum of $30,000. The trial court also found that the fair market value of the subject property on the date of the foreclosure was $30,000 more than the composite liens and encumbrances against it on that date.

Civil Code section 3333 provides that the measure of damages for a wrong other than breach of contract will be an amount sufficient to compensate the plaintiff for all detriment, foreseeable or otherwise, proximately occasioned by the defendant’s wrong. [10] In applying this measure it must be noted that the primary object of an award of damages in a civil action, and the fundamental theory or principle on which it is based is just compensation or indemnity for the loss or injury sustained by the plaintiff and no more. (Estate of De Laveaga, 50 Cal.2d 480, 488 [326 P.2d 129].) Accordingly, where a mortgagee or trustee makes an unauthorized sale under a power of sale he and his principal are liable to the mortgagor for the value of the property at the time of the sale in excess of the mortgages and liens against said property. fn. 8 (Murphy v. Wilson, supra, 153 Cal.App.2d 132, 135-136; Edwards v. Smith, supra, 322 S.W.2d 770, 777; Silver v. First Nat. Bank, 108 N.H. 390 [236 A.2d 493, 495]; Black v. Burd, supra, 255 S.W.2d 553, 556-557.) In Murphy this rule was applied when the court awarded the plaintiff his equity in the home sold by the defendant.

[11] We turn now to the question whether there was substantial evidence to support the trial court’s finding of damages. Defendant points out that the composite of the two prior encumbrances amounted to $411,562.74, that is, $352,562.74 plus $9,000 interest on the Home obligation and $50,000 on the defendant-Atwill obligation. This computation is conceded to be correct. It is defendant’s contention, therefore, that such aggregate sum exceeds the sum of $408,000 which plaintiff’s expert appraiser testified was the fair market value of the property. Accordingly, he argues that since this valuation was the highest appraisal and the fair market value of the property was less than the sum of encumbrances, there was no evidence to support the trial court’s finding that the fair market value at the time of the sale exceeded by $30,000 the sum of the outstanding encumbrances. This contention is without merit since it assumes that the trial court was bound to accept the valuation placed upon the property by plaintiff’s appraiser. We observe that although there was testimony by defendant’s [11 Cal.App.3d 12] appraiser that on the date of the foreclosure sale the fair market value of the property was $360,000 and that defendant himself testified that on said date said value was $400,000, there was also evidence from which the trial court could infer that on the subject date the fair market value of the property was approximately $450,000.

When defendant testified that the fair market value was $400,000 on the date of the foreclosure, he was cross-examined as to whether this was not in fact his valuation on the date of the recordation of the notice of completion of the apartment building, since in his deposition defendant had so testified. Defendant responded that the value on the date the notice of completion was recorded was approximately $350,000 and explained that in his deposition he understood the reference to the notice of completion to mean the completion of the building so that it was ready for occupancy. The trial court was not required to accept this explanation but was justified in believing that from the time the notice of completion was recorded and the foreclosure sale the value of the building had enhanced approximately $50,000. Moreover, the trial court was justified in believing, in the light of defendant’s experience, fn. 9 that when he testified that the value of the property was $400,000 at the time the notice of completion was filed he understood the meaning of “notice of completion.” Under the state of the record the trial court would have been justified in concluding that plaintiff’s equity was the difference between $450,000 and $411,562.74 or $38,437.26, and a finding to that effect would have been supportable. The trial court, however, found this equity to be the sum of $30,000 apparently on the basis that defendant’s valuations were approximations. fn. 10 Under the circumstances defendant cannot complain.

The judgment is affirmed.

Sims, J., and Elkington, J., concurred.

­FN 1. Defendant also appealed from that portion of the judgment in the sum of $4,500 entered in favor of defendant and cross-complainant Valley Title Company, a corporation. We have been advised that the matter has been settled with respect to Valley and that it is no longer a party to the proceedings. Defendant has not argued or presented any points with respect to any issues having to do with Valley. Accordingly, under the circumstances, although no formal dismissal as to Valley has been filed, we deem the appeal as to Valley abandoned. (See White v. Shultis, 177 Cal.App.2d 641, 648 [2 Cal.Rptr. 414].)

­FN 2. Home, in the meantime, had made an additional advance under the terms of the first deed of trust in the sum of $69,562.74, making the total sum loaned by Home $352,562.74.

­FN 3. Katz does not discuss whether the tort of conversion may be committed with relation to real property but apparently assumed that it was the subject of conversion since the issue was not tendered.

­FN 4. No petition for a hearing in the Supreme Court was made in the Murphy case.

­FN 5. We note that in 59 C.J.S., Mortgages, section 603, subdivision a, footnote 91 (1970 Cum. Annual Pocket Part) the Murphy case is cited as authority for this principle which is there stated thusly: “Where a sale by a mortgagee or by a trustee in a deed of trust is illegal, fraudulent, or willfully oppressive, the mortgagor may maintain an action for damages against the mortgagee or trustee, …” (At p. 1068.)

­FN 6. We observe in passing that as defendant properly asserts, the proper standard for wrongful deprivation of security is the fair market value at the time of sale less outstanding encumbrances and/or taxes due at such time, not in any event to exceed the amount due plaintiff on his loans. (See Howe v. City Title Ins. Co., 255 Cal.App.2d 85, 87 [63 Cal.Rptr. 119]; Stephans v. Herman, 225 Cal.App.2d 671, 673-674 [37 Cal.Rptr. 746].)

­FN 7. A deed absolute on its face may be shown to be a mortgage by parol evidence of such contradictory intent. (Workmon Constr. Co. v. Weirick, 223 Cal.App.2d 487, 490 [36 Cal.Rptr. 17]; Greene v. Colburn, 160 Cal.App.2d 355, 358 [325 P.2d 148]; Borton v. Joslin, 88 Cal.App. 515, 520 [263 P. 1033]; see Civ. Code, §§ 1105, 2925.)

­FN 8. We observe here that this is the same measure of damages for loss of security urged by defendant, except that in such case the damages may not exceed the amount due on the note for which the real property was security. (Stephans v. Herman, supra, 225 Cal.App.2d 671, 673-674; Howe v. City Title Ins. Co., supra, 255 Cal.App.2d 85, 87.) It would appear that even under this theory plaintiff could recover damages up to $28,000, the amount of plaintiff’s notes, if that sum exceeded the fair market value of the real property security, less prior liens and taxes.

­FN 9. The record discloses that defendant had a law school degree.

­FN 10. In testifying to the $400,000 and $350,000 valuations, defendant stated “These are both rough guesses.” Although defendant used the term “guesses” it is obvious from his testimony generally that he equated the term “guess” to an opinion.


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MABRY tip no injunction needed to stop foreclosure TERRY MABRY et al., opinion 2923.5 Cilvil code

12 06 2010

The court in Mabry pointed out there are provisions in 2924 G to postpone a foreclosure sale. This could go a long way to facilitate the postponement and workout contemplated by 2923.5. This would be without having to Get a Temporary restraining order (TRO) and preliminary injunction. In other words not have to meet the burden to sustain the preliminary injunction and since the holding declares no tender is necessary no posting of a bond. I have attached the provision:
(c)

(1) There may be a postponement or postponements of the sale proceedings, including a postponement upon instruction by the beneficiary to the trustee that the sale proceedings be postponed, at any time prior to the completion of the sale for any period of time not to exceed a total of 365 days from the date set forth in the notice of sale. The trustee shall postpone the sale in accordance with any of the following:

(A) Upon the order of any court of competent jurisdiction.

For all you non lawyers out there this is key.

To sustain a preliminary injunction we have to put on a mini trial demonstrating that the case is more likely than no to prevail at trial;and sustain a permanent injunction. In the early stages this is an impossible burden without discovery.The other side puts up the Tender rule and asks the court to make the plaintiff (our client) put up a bond sometimes as high as the loan balance. If we use the code 2924 G the court has the power to delay the sale pursuant to 2924 G (c)(1)(A) for up to 365 days without using its equitable powers of injunction. The court can postpone the sale as a mater of law.


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Categories : 2924, Mortgage modification, mortgage meltdown, pedatory lending, stop foreclosure


Civil Code 2924

12 06 2010

CA Foreclosure Law – Civil Code 2924
Civil Code 2924

2924.
(a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge. Where, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations, or is made by a public utility subject to the provisions of the Public Utilities Act, until all of the following apply:

(1) The trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice of default. That notice of default shall include all of the following:

(A) A statement identifying the mortgage or deed of trust by stating the name or names of the trustor or trustors and giving the book and page, or instrument number, if applicable, where the mortgage or deed of trust is recorded or a description of the mortgaged or trust property.

(B) A statement that a breach of the obligation for which the mortgage or transfer in trust is security has occurred.

(C) A statement setting forth the nature of each breach actually known to the beneficiary and of his or her election to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default.

(D) If the default is curable pursuant to Section 2924c, the statement specified in paragraph (1) of subdivision (b) of Section 2924c.

(2) Not less than three months shall elapse from the filing of the notice of default.

(3) After the lapse of the three months described in paragraph (2), the mortgagee, trustee or other person authorized to take the sale shall give notice of sale, stating the time and place thereof, in the manner and for a time not less than that set forth in Section 2924f.

(b) In performing acts required by this article, the trustee shall incur no liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage. In performing the acts required by this article, a trustee shall not be subject to Title 1.6c (commencing with Section 1788) of Part 4.

(c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.

(d) All of the following shall constitute privileged communications pursuant to Section 47:

(1) The mailing, publication, and delivery of notices as required by this section.

(2) Performance of the procedures set forth in this article.

(3) Performance of the functions and procedures set forth in this article if those functions and procedures are necessary to carry out the duties described in Sections 729.040, 729.050, and 729.080 of the Code of Civil Procedure.

(e) There is a rebuttable presumption that the beneficiary actually knew of all unpaid loan payments on the obligation owed to the beneficiary and secured by the deed of trust or mortgage subject to the notice of default. However, the failure to include an actually known default shall not invalidate the notice of sale and the beneficiary shall not be precluded from asserting a claim to this omitted default or defaults in a separate notice of default.

2924.3.
(a) Except as provided in subdivisions (b) and (c), a person who has undertaken as an agent of a mortgagee, beneficiary, or owner of a promissory note secured directly or collaterally by a mortgage or deed of trust on real property or an estate for years therein, to make collections of payments from an obligor under the note, shall mail the following notices, postage prepaid, to each mortgagee, beneficiary or owner for whom the agent has agreed to make collections from the obligor under the note:

(1) A copy of the notice of default filed in the office of the county recorder pursuant to Section 2924 on account of a breach of obligation under the promissory note on which the agent has agreed to make collections of payments, within 15 days after recordation.

(2) Notice that a notice of default has been recorded pursuant to Section 2924 on account of a breach of an obligation secured by a mortgage or deed of trust against the same property or estate for years therein having priority over the mortgage or deed of trust securing the obligation described in paragraph (1), within 15 days after recordation or within three business days after the agent receives the information, whichever is later.

(3) Notice of the time and place scheduled for the sale of the real property or estate for years therein pursuant to Section 2924f under a power of sale in a mortgage or deed of trust securing an obligation described in paragraphs (1) or (2), not less than 15 days before the scheduled date of the sale or not later than the next business day after the agent receives the information, whichever is later.

(b) An agent who has undertaken to make collections on behalf of mortgagees, beneficiaries or owners of promissory notes secured by mortgages or deeds of trust on real property or an estate for years therein shall not be required to comply with the provisions of subdivision (a) with respect to a mortgagee, beneficiary or owner who is entitled to receive notice pursuant to subdivision (c) of Section 2924b or for whom a request for notice has been recorded pursuant to subdivision (b) of Section 2924b if the agent reasonably believes that the address of the mortgagee, beneficiary, or owner described in Section 2924b is the current business or residence address of that person.

(c) An agent who has undertaken to make collections on behalf of mortgagees, beneficiaries or owners of promissory notes secured by mortgages or deeds of trust on real property or an estate for years therein shall not be required to comply with the provisions of paragraph (1) or (2) of subdivision (a) if the agent knows or reasonably believes that the default has already been cured by or on behalf of the obligor.

(d) Any failure to comply with the provisions of this section shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.

2924.5.
No clause in any deed of trust or mortgage on property containing four or fewer residential units or on which four or fewer residential units are to be constructed or in any obligation secured by any deed of trust or mortgage on property containing four or fewer residential units or on which four or fewer residential units are to be constructed that provides for the acceleration of the due date of the obligation upon the sale, conveyance, alienation, lease, succession, assignment or other transfer of the property subject to the deed of trust or mortgage shall be valid unless the clause is set forth, in its entirety in both the body of the deed of trust or mortgage and the promissory note or other document evidencing the secured obligation. This section shall apply to all such deeds of trust, mortgages, and obligations secured thereby executed on or after July 1, 1972.

2924.6.
(a) An obligee may not accelerate the maturity date of the principal and accrued interest on any loan secured by a mortgage or deed of trust on residential real property solely by reason of any one or more of the following transfers in the title to the real property:

(1) A transfer resulting from the death of an obligor where the transfer is to the spouse who is also an obligor.

(2) A transfer by an obligor where the spouse becomes a coowner of the property.

(3) A transfer resulting from a decree of dissolution of the marriage or legal separation or from a property settlement agreement incidental to such a decree which requires the obligor to continue to make the loan payments by which a spouse who is an obligor becomes the sole owner of the property.

(4) A transfer by an obligor or obligors into an inter vivos trust in which the obligor or obligors are beneficiaries.

(5) Such real property or any portion thereof is made subject to a junior encumbrance or lien.

(b) Any waiver of the provisions of this section by an obligor is void and unenforceable and is contrary to public policy.

(c) For the purposes of this section, “residential real property” means any real property which contains at least one but not more than four housing units.

(d) This act applies only to loans executed or refinanced on or after January 1, 1976.

2924.7.
(a) The provisions of any deed of trust or mortgage on real property which authorize any beneficiary, trustee, mortgagee, or his or her agent or successor in interest, to accelerate the maturity date of the principal and interest on any loan secured thereby or to exercise any power of sale or other remedy contained therein upon the failure of the trustor or mortgagor to pay, at the times provided for under the terms of the deed of trust or mortgage, any taxes, rents, assessments, or insurance premiums with respect to the property or the loan, or any advances made by the beneficiary, mortgagee, or his or her agent or successor in interest shall be enforceable whether or not impairment of the security interest in the property has resulted from the failure of the trustor or mortgagor to pay the taxes, rents, assessments, insurance premiums, or advances.

(b) The provisions of any deed of trust or mortgage on real property which authorize any beneficiary, trustee, mortgagee, or his or her agent or successor in interest, to receive and control the disbursement of the proceeds of any policy of fire, flood, or other hazard insurance respecting the property shall be enforceable whether or not impairment of the security interest in the property has resulted from the event that caused the proceeds of the insurance policy to become payable.

2924a.
If, by the terms of any trust or deed of trust a power of sale is conferred upon the trustee, the attorney for the trustee, or any duly authorized agent, may conduct the sale and act in the sale as the auctioneer for the trustee.

2924b.
(a) Any person desiring a copy of any notice of default and of any notice of sale under any deed of trust or mortgage with power of sale upon real property or an estate for years therein, as to which deed of trust or mortgage the power of sale cannot be exercised until these notices are given for the time and in the manner provided in Section 2924 may, at any time subsequent to recordation of the deed of trust or mortgage and prior to recordation of notice of default thereunder, cause to be filed for record in the office of the recorder of any county in which any part or parcel of the real property is situated, a duly acknowledged request for a copy of the notice of default and of sale. This request shall be signed and acknowledged by the person making the request, specifying the name and address of the person to whom the notice is to be mailed, shall identify the deed of trust or mortgage by stating the names of the parties thereto, the date of recordation thereof, and the book and page where the deed of trust or mortgage is recorded or the recorder’ s number, and shall be in substantially the following form:

“In accordance with Section 2924b, Civil Code, request is hereby made
that a copy of any notice of default and a copy of any notice of sale
under the deed of trust (or mortgage) recorded ______, ____, in
Book_____ page ____ records of ____ County, (or filed for record with
recorder’s serial number ____, _______County) California, executed
by ____ as trustor (or mortgagor) in which ________ is named as
beneficiary (or mortgagee) and ______________ as
trustee be mailed to
_________________ at ____________________________.
Name Address

NOTICE: A copy of any notice of default and of
any notice of sale will be sent only to the address contained in this
recorded request. If your address changes, a new
request must be recorded.

Signature _________________”

Upon the filing for record of the request, the recorder shall index in the general index of grantors the names of the trustors (or mortgagor) recited therein and the names of persons requesting copies.

(b) The mortgagee, trustee, or other person authorized to record the notice of default or the notice of sale shall do each of the following:

(1) Within 10 business days following recordation of the notice of default, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice with the recording date shown thereon, addressed to each person whose name and address are set forth in a duly recorded request therefor, directed to the address designated in the request and to each trustor or mortgagor at his or her last known address if different than the address specified in the deed of trust or mortgage with power of sale.

(2) At least 20 days before the date of sale, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice of the time and place of sale, addressed to each person whose name and address are set forth in a duly recorded request therefor, directed to the address designated in the request and to each trustor or mortgagor at his or her last known address if different than the address specified in the deed of trust or mortgage with power of sale.

(3) As used in paragraphs (1) and (2), the “last known address” of each trustor or mortgagor means the last business or residence physical address actually known by the mortgagee, beneficiary, trustee, or other person authorized to record the notice of default. For the purposes of this subdivision, an address is “actually known” if it is contained in the original deed of trust or mortgage, or in any subsequent written notification of a change of physical address from the trustor or mortgagor pursuant to the deed of trust or mortgage. For the purposes of this subdivision, “physical address” does not include an e-mail or any form of electronic address for a trustor or mortgagor. The beneficiary shall inform the trustee of the trustor’s last address actually known by the beneficiary. However, the trustee shall incur no liability for failing to send any notice to the last address unless the trustee has actual knowledge of it.

(4) A “person authorized to record the notice of default or the notice of sale” shall include an agent for the mortgagee or beneficiary, an agent of the named trustee, any person designated in an executed substitution of trustee, or an agent of that substituted trustee.

(c) The mortgagee, trustee, or other person authorized to record the notice of default or the notice of sale shall do the following:

(1) Within one month following recordation of the notice of default, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice with the recording date shown thereon, addressed to each person set forth in paragraph (2), provided that the estate or interest of any person entitled to receive notice under this subdivision is acquired by an instrument sufficient to impart constructive notice of the estate or interest in the land or portion thereof which is subject to the deed of trust or mortgage being foreclosed, and provided the instrument is recorded in the office of the county recorder so as to impart that constructive notice prior to the recording date of the notice of default and provided the instrument as so recorded sets forth a mailing address which the county recorder shall use, as instructed within the instrument, for the return of the instrument after recording, and which address shall be the address used for the purposes of mailing notices herein.

(2) The persons to whom notice shall be mailed under this subdivision are:

(A) The successor in interest, as of the recording date of the notice of default, of the estate or interest or any portion thereof of the trustor or mortgagor of the deed of trust or mortgage being foreclosed.

(B) The beneficiary or mortgagee of any deed of trust or mortgage recorded subsequent to the deed of trust or mortgage being foreclosed, or recorded prior to or concurrently with the deed of trust or mortgage being foreclosed but subject to a recorded agreement or a recorded statement of subordination to the deed of trust or mortgage being foreclosed.

(C) The assignee of any interest of the beneficiary or mortgagee described in subparagraph (B), as of the recording date of the notice of default.

(D) The vendee of any contract of sale, or the lessee of any lease, of the estate or interest being foreclosed which is recorded subsequent to the deed of trust or mortgage being foreclosed, or recorded prior to or concurrently with the deed of trust or mortgage being foreclosed but subject to a recorded agreement or statement of subordination to the deed of trust or mortgage being foreclosed.

(E) The successor in interest to the vendee or lessee described in subparagraph (D), as of the recording date of the notice of default.

(F) The office of the Controller, Sacramento, California, where, as of the recording date of the notice of default, a “Notice of Lien for Postponed Property Taxes” has been recorded against the real property to which the notice of default applies.

(3) At least 20 days before the date of sale, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice of the time and place of sale addressed to each person to whom a copy of the notice of default is to be mailed as provided in paragraphs (1) and (2), and addressed to the office of any state taxing agency, Sacramento, California, which has recorded, subsequent to the deed of trust or mortgage being foreclosed, a notice of tax lien prior to the recording date of the notice of default against the real property to which the notice of default applies.

(4) Provide a copy of the notice of sale to the Internal Revenue Service, in accordance with Section 7425 of the Internal Revenue Code and any applicable federal regulation, if a “Notice of Federal Tax Lien under Internal Revenue Laws” has been recorded, subsequent to the deed of trust or mortgage being foreclosed, against the real property to which the notice of sale applies. The failure to provide the Internal Revenue Service with a copy of the notice of sale pursuant to this paragraph shall be sufficient cause to rescind the trustee’s sale and invalidate the trustee’s deed, at the option of either the successful bidder at the trustee’s sale or the trustee, and in either case with the consent of the beneficiary. Any option to rescind the trustee’s sale pursuant to this paragraph shall be exercised prior to any transfer of the property by the successful bidder to a bona fide purchaser for value. A recision of the trustee’ s sale pursuant to this paragraph may be recorded in a notice of recision pursuant to Section 1058.5.

(5) The mailing of notices in the manner set forth in paragraph (1) shall not impose upon any licensed attorney, agent, or employee of any person entitled to receive notices as herein set forth any duty to communicate the notice to the entitled person from the fact that the mailing address used by the county recorder is the address of the attorney, agent, or employee.

(d) Any deed of trust or mortgage with power of sale hereafter executed upon real property or an estate for years therein may contain a request that a copy of any notice of default and a copy of any notice of sale thereunder shall be mailed to any person or party thereto at the address of the person given therein, and a copy of any notice of default and of any notice of sale shall be mailed to each of these at the same time and in the same manner required as though a separate request therefor had been filed by each of these persons as herein authorized. If any deed of trust or mortgage with power of sale executed after September 19, 1939, except a deed of trust or mortgage of any of the classes excepted from the provisions of Section 2924, does not contain a mailing address of the trustor or mortgagor therein named, and if no request for special notice by the trustor or mortgagor in substantially the form set forth in this section has subsequently been recorded, a copy of the notice of default shall be published once a week for at least four weeks in a newspaper of general circulation in the county in which the property is situated, the publication to commence within 10 business days after the filing of the notice of default. In lieu of publication, a copy of the notice of default may be delivered personally to the trustor or mortgagor within the 10 business days or at any time before publication is completed, or by posting the notice of default in a conspicuous place on the property and mailing the notice to the last known address of the trustor or mortgagor.

(e) Any person required to mail a copy of a notice of default or notice of sale to each trustor or mortgagor pursuant to subdivision (b) or (c) by registered or certified mail shall simultaneously cause to be deposited in the United States mail, with postage prepaid and mailed by first-class mail, an envelope containing an additional copy of the required notice addressed to each trustor or mortgagor at the same address to which the notice is sent by registered or certified mail pursuant to subdivision (b) or (c). The person shall execute and retain an affidavit identifying the notice mailed, showing the name and residence or business address of that person, that he or she is over the age of 18 years, the date of deposit in the mail, the name and address of the trustor or mortgagor to whom sent, and that the envelope was sealed and deposited in the mail with postage fully prepaid. In the absence of fraud, the affidavit required by this subdivision shall establish a conclusive presumption of mailing.

(f) No request for a copy of any notice filed for record pursuant to this section, no statement or allegation in the request, and no record thereof shall affect the title to real property or be deemed notice to any person that any person requesting copies of notice has or claims any right, title, or interest in, or lien or charge upon the property described in the deed of trust or mortgage referred to therein.

(g) “Business day,” as used in this section, has the meaning specified in Section 9.

2924c.
(a)

(1) Whenever all or a portion of the principal sum of any obligation secured by deed of trust or mortgage on real property or an estate for years therein hereafter executed has, prior to the maturity date fixed in that obligation, become due or been declared due by reason of default in payment of interest or of any installment of principal, or by reason of failure of trustor or mortgagor to pay, in accordance with the terms of that obligation or of the deed of trust or mortgage, taxes, assessments, premiums for insurance, or advances made by beneficiary or mortgagee in accordance with the terms of that obligation or of the deed of trust or mortgage, the trustor or mortgagor or his or her successor in interest in the mortgaged or trust property or any part thereof, or any beneficiary under a subordinate deed of trust or any other person having a subordinate lien or encumbrance of record thereon, at any time within the period specified in subdivision (e), if the power of sale therein is to be exercised, or, otherwise at any time prior to entry of the decree of foreclosure, may pay to the beneficiary or the mortgagee or their successors in interest, respectively, the entire amount due, at the time payment is tendered, with respect to (A) all amounts of principal, interest, taxes, assessments, insurance premiums, or advances actually known by the beneficiary to be, and that are, in default and shown in the notice of default, under the terms of the deed of trust or mortgage and the obligation secured thereby, (B) all amounts in default on recurring obligations not shown in the notice of default, and (C) all reasonable costs and expenses, subject to subdivision (c), which are actually incurred in enforcing the terms of the obligation, deed of trust, or mortgage, and trustee’s or attorney’s fees, subject to subdivision (d), other than the portion of principal as would not then be due had no default occurred, and thereby cure the default theretofore existing, and thereupon, all proceedings theretofore had or instituted shall be dismissed or discontinued and the obligation and deed of trust or mortgage shall be reinstated and shall be and remain in force and effect, the same as if the acceleration had not occurred. This section does not apply to bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations or made by a public utility subject to the Public Utilities Code. For the purposes of this subdivision, the term “recurring obligation” means all amounts of principal and interest on the loan, or rents, subject to the deed of trust or mortgage in default due after the notice of default is recorded; all amounts of principal and interest or rents advanced on senior liens or leaseholds which are advanced after the recordation of the notice of default; and payments of taxes, assessments, and hazard insurance advanced after recordation of the notice of default. Where the beneficiary or mortgagee has made no advances on defaults which would constitute recurring obligations, the beneficiary or mortgagee may require the trustor or mortgagor to provide reliable written evidence that the amounts have been paid prior to reinstatement.

(2) If the trustor, mortgagor, or other person authorized to cure the default pursuant to this subdivision does cure the default, the beneficiary or mortgagee or the agent for the beneficiary or mortgagee shall, within 21 days following the reinstatement, execute and deliver to the trustee a notice of rescission which rescinds the declaration of default and demand for sale and advises the trustee of the date of reinstatement. The trustee shall cause the notice of rescission to be recorded within 30 days of receipt of the notice of rescission and of all allowable fees and costs.

No charge, except for the recording fee, shall be made against the trustor or mortgagor for the execution and recordation of the notice which rescinds the declaration of default and demand for sale.

(b)

(1) The notice, of any default described in this section, recorded pursuant to Section 2924, and mailed to any person pursuant to Section 2924b, shall begin with the following statement, printed or typed thereon:

“IMPORTANT NOTICE (14-point boldface type if printed or in
capital letters if typed)

IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR
PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, (14-point boldface
type if printed or in capital letters if typed) and you may have the
legal right to bring your account in good standing by paying all of
your past due payments plus permitted costs and expenses within the
time permitted by law for reinstatement of your account, which is
normally five business days prior to the date set for the sale of
your property. No sale date may be set until three months from the
date this notice of default may be recorded (which date of
recordation appears on this notice).

This amount is ___________________ as of ______________________
(Date)
and will increase until your account becomes current.

While your property is in foreclosure, you still must pay other
obligations (such as insurance and taxes) required by your note and
deed of trust or mortgage. If you fail to make future payments on
the loan, pay taxes on the property, provide insurance on the
property, or pay other obligations as required in the note and deed
of trust or mortgage, the beneficiary or mortgagee may insist that
you do so in order to reinstate your account in good standing. In
addition, the beneficiary or mortgagee may require as a condition to
reinstatement that you provide reliable written evidence that you
paid all senior liens, property taxes, and hazard insurance premiums.

Upon your written request, the beneficiary or mortgagee will give
you a written itemization of the entire amount you must pay. You may
not have to pay the entire unpaid portion of your account, even
though full payment was demanded, but you must pay all amounts in
default at the time payment is made. However, you and your
beneficiary or mortgagee may mutually agree in writing prior to the
time the notice of sale is posted (which may not be earlier than the
end of the three-month period stated above) to, among other things,
(1) provide additional time in which to cure the default by transfer
of the property or otherwise; or (2) establish a schedule of payments
in order to cure your default; or both (1) and (2).
Following the expiration of the time period referred to in the
first paragraph of this notice, unless the obligation being
foreclosed upon or a separate written agreement between you and your
creditor permits a longer period, you have only the legal right to
stop the sale of your property by paying the entire amount demanded
by your creditor.
To find out the amount you must pay, or to arrange for payment to
stop the foreclosure, or if your property is in foreclosure for any
other reason, contact:

______________________________________
(Name of beneficiary or mortgagee)

______________________________________
(Mailing address)

______________________________________
(Telephone)

If you have any questions, you should contact a lawyer or the
governmental agency which may have insured your loan.
Notwithstanding the fact that your property is in foreclosure, you
may offer your property for sale, provided the sale is concluded
prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT
ACTION. (14-point boldface type if printed or in capital letters if
typed)”

Unless otherwise specified, the notice, if printed, shall appear in at least 12-point boldface type.

If the obligation secured by the deed of trust or mortgage is a contract or agreement described in paragraph (1) or (4) of subdivision (a) of Section 1632, the notice required herein shall be in Spanish if the trustor requested a Spanish language translation of the contract or agreement pursuant to Section 1632. If the obligation secured by the deed of trust or mortgage is contained in a home improvement contract, as defined in Sections 7151.2 and 7159 of the Business and Professions Code, which is subject to Title 2 (commencing with Section 1801), the seller shall specify on the contract whether or not the contract was principally negotiated in Spanish and if the contract was principally negotiated in Spanish, the notice required herein shall be in Spanish. No assignee of the contract or person authorized to record the notice of default shall incur any obligation or liability for failing to mail a notice in Spanish unless Spanish is specified in the contract or the assignee or person has actual knowledge that the secured obligation was principally negotiated in Spanish. Unless specified in writing to the contrary, a copy of the notice required by subdivision (c) of Section 2924b shall be in English.

(2) Any failure to comply with the provisions of this subdivision shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.

(c) Costs and expenses which may be charged pursuant to Sections 2924 to 2924i, inclusive, shall be limited to the costs incurred for recording, mailing, including certified and express mail charges, publishing, and posting notices required by Sections 2924 to 2924i, inclusive, postponement pursuant to Section 2924g not to exceed fifty dollars ($50) per postponement and a fee for a trustee’s sale guarantee or, in the event of judicial foreclosure, a litigation guarantee. For purposes of this subdivision, a trustee or beneficiary may purchase a trustee’s sale guarantee at a rate meeting the standards contained in Sections 12401.1 and 12401.3 of the Insurance Code.

(d) Trustee’s or attorney’s fees which may be charged pursuant to subdivision (a), or until the notice of sale is deposited in the mail to the trustor as provided in Section 2924b, if the sale is by power of sale contained in the deed of trust or mortgage, or, otherwise at any time prior to the decree of foreclosure, are hereby authorized to be in a base amount that does not exceed three hundred dollars ($300) if the unpaid principal sum secured is one hundred fifty thousand dollars ($150,000) or less, or two hundred fifty dollars ($250) if the unpaid principal sum secured exceeds one hundred fifty thousand dollars ($150,000), plus one-half of 1 percent of the unpaid principal sum secured exceeding fifty thousand dollars ($50,000) up to and including one hundred fifty thousand dollars ($150,000), plus one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty thousand dollars ($150,000) up to and including five hundred thousand dollars ($500,000), plus one-eighth of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand dollars ($500,000). Any charge for trustee’s or attorney’s fees authorized by this subdivision shall be conclusively presumed to be lawful and valid where the charge does not exceed the amounts authorized herein. For purposes of this subdivision, the unpaid principal sum secured shall be determined as of the date the notice of default is recorded.

(e) Reinstatement of a monetary default under the terms of an obligation secured by a deed of trust, or mortgage may be made at any time within the period commencing with the date of recordation of the notice of default until five business days prior to the date of sale set forth in the initial recorded notice of sale.

In the event the sale does not take place on the date set forth in the initial recorded notice of sale or a subsequent recorded notice of sale is required to be given, the right of reinstatement shall be revived as of the date of recordation of the subsequent notice of sale, and shall continue from that date until five business days prior to the date of sale set forth in the subsequently recorded notice of sale.

In the event the date of sale is postponed on the date of sale set forth in either an initial or any subsequent notice of sale, or is postponed on the date declared for sale at an immediately preceding postponement of sale, and, the postponement is for a period which exceeds five business days from the date set forth in the notice of sale, or declared at the time of postponement, then the right of reinstatement is revived as of the date of postponement and shall continue from that date until five business days prior to the date of sale declared at the time of the postponement.

Nothing contained herein shall give rise to a right of reinstatement during the period of five business days prior to the date of sale, whether the date of sale is noticed in a notice of sale or declared at a postponement of sale.

Pursuant to the terms of this subdivision, no beneficiary, trustee, mortgagee, or their agents or successors shall be liable in any manner to a trustor, mortgagor, their agents or successors or any beneficiary under a subordinate deed of trust or mortgage or any other person having a subordinate lien or encumbrance of record thereon for the failure to allow a reinstatement of the obligation secured by a deed of trust or mortgage during the period of five business days prior to the sale of the security property, and no such right of reinstatement during this period is created by this section. Any right of reinstatement created by this section is terminated five business days prior to the date of sale set forth in the initial date of sale, and is revived only as prescribed herein and only as of the date set forth herein.

As used in this subdivision, the term “business day” has the same meaning as specified in Section 9.

2924d.
(a) Commencing with the date that the notice of sale is deposited in the mail, as provided in Section 2924b, and until the property is sold pursuant to the power of sale contained in the mortgage or deed of trust, a beneficiary, trustee, mortgagee, or his or her agent or successor in interest, may demand and receive from a trustor, mortgagor, or his or her agent or successor in interest, or any beneficiary under a subordinate deed of trust, or any other person having a subordinate lien or encumbrance of record those reasonable costs and expenses, to the extent allowed by subdivision (c) of Section 2924c, which are actually incurred in enforcing the terms of the obligation and trustee’s or attorney’s fees which are hereby authorized to be in a base amount which does not exceed four hundred twenty-five dollars ($425) if the unpaid principal sum secured is one hundred fifty thousand dollars ($150,000) or less, or three hundred sixty dollars ($360) if the unpaid principal sum secured exceeds one hundred fifty thousand dollars ($150,000), plus 1 percent of any portion of the unpaid principal sum secured exceeding fifty thousand dollars ($50,000) up to and including one hundred fifty thousand dollars ($150,000), plus one-half of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty thousand dollars ($150,000) up to and including five hundred thousand dollars ($500,000), plus one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand dollars ($500,000). For purposes of this subdivision, the unpaid principal sum secured shall be determined as of the date the notice of default is recorded. Any charge for trustee’s or attorney’ s fees authorized by this subdivision shall be conclusively presumed to be lawful and valid where that charge does not exceed the amounts authorized herein. Any charge for trustee’s or attorney’s fees made pursuant to this subdivision shall be in lieu of and not in addition to those charges authorized by subdivision (d) of Section 2924c.

(b) Upon the sale of property pursuant to a power of sale, a trustee, or his or her agent or successor in interest, may demand and receive from a beneficiary, or his or her agent or successor in interest, or may deduct from the proceeds of the sale, those reasonable costs and expenses, to the extent allowed by subdivision (c) of Section 2924c, which are actually incurred in enforcing the terms of the obligation and trustee’s or attorney’s fees which are hereby authorized to be in an amount which does not exceed four hundred twenty-five dollars ($425) or one percent of the unpaid principal sum secured, whichever is greater. For purposes of this subdivision, the unpaid principal sum secured shall be determined as of the date the notice of default is recorded. Any charge for trustee’s or attorney’s fees authorized by this subdivision shall be conclusively presumed to be lawful and valid where that charge does not exceed the amount authorized herein. Any charges for trustee’s or attorney’s fees made pursuant to this subdivision shall be in lieu of and not in addition to those charges authorized by subdivision (a) of this section and subdivision (d) of Section 2924c.

(c)

(1) No person shall pay or offer to pay or collect any rebate or kickback for the referral of business involving the performance of any act required by this article.

(2) Any person who violates this subdivision shall be liable to the trustor for three times the amount of any rebate or kickback, plus reasonable attorney’s fees and costs, in addition to any other remedies provided by law.

(3) No violation of this subdivision shall affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value without notice.

(d) It shall not be unlawful for a trustee to pay or offer to pay a fee to an agent or subagent of the trustee for work performed by the agent or subagent in discharging the trustee’s obligations under the terms of the deed of trust. Any payment of a fee by a trustee to an agent or subagent of the trustee for work performed by the agent or subagent in discharging the trustee’s obligations under the terms of the deed of trust shall be conclusively presumed to be lawful and valid if the fee, when combined with other fees of the trustee, does not exceed in the aggregate the trustee’s fee authorized by subdivision (d) of Section 2924c or subdivision (a) or (b) of this section.

(e) When a court issues a decree of foreclosure, it shall have discretion to award attorney’s fees, costs, and expenses as are reasonable, if provided for in the note, deed of trust, or mortgage, pursuant to Section 580c of the Code of Civil Procedure.

2924e.
(a) The beneficiary or mortgagee of any deed of trust or mortgage on real property either containing one to four residential units or given to secure an original obligation not to exceed three hundred thousand dollars ($300,000) may, with the written consent of the trustor or mortgagor that is either effected through a signed and dated agreement which shall be separate from other loan and security documents or disclosed to the trustor or mortgagor in at least 10-point type, submit a written request by certified mail to the beneficiary or mortgagee of any lien which is senior to the lien of the requester, for written notice of any or all delinquencies of four months or more, in payments of principal or interest on any obligation secured by that senior lien notwithstanding that the loan secured by the lien of the requester is not then in default as to payments of principal or interest.

The request shall be sent to the beneficiary or mortgagee, or agent which it might designate for the purpose of receiving loan payments, at the address specified for the receipt of these payments, if known, or, if not known, at the address shown on the recorded deed of trust or mortgage.

(b) The request for notice shall identify the ownership or security interest of the requester, the date on which the interest of the requester will terminate as evidenced by the maturity date of the note of the trustor or mortgagor in favor of the requester, the name of the trustor or mortgagor and the name of the current owner of the security property if different from the trustor or mortgagor, the street address or other description of the security property, the loan number (if available to the requester) of the loan secured by the senior lien, the name and address to which notice is to be sent, and shall include or be accompanied by the signed written consent of the trustor or mortgagor, and a fee of forty dollars ($40). For obligations secured by residential properties, the request shall remain valid until withdrawn in writing and shall be applicable to all delinquencies as provided in this section, which occur prior to the date on which the interest of the requester will terminate as specified in the request or the expiration date, as appropriate. For obligations secured by nonresidential properties, the request shall remain valid until withdrawn in writing and shall be applicable to all delinquencies as provided in this section, which occur prior to the date on which the interest of the requester will terminate as specified in the request or the expiration date, as appropriate. The beneficiary or mortgagee of obligations secured by nonresidential properties that have sent five or more notices prior to the expiration of the effective period of the request may charge a fee up to fifteen dollars ($15) for each subsequent notice. A request for notice shall be effective for five years from the mailing of the request or the recording of that request, whichever occurs later, and may be renewed within six months prior to its expiration date by sending the beneficiary or mortgagee, or agent, as the case may be, at the address to which original requests for notice are to be sent, a copy of the earlier request for notice together with a signed statement that the request is renewed and a renewal fee of fifteen dollars ($15). Upon timely submittal of a renewal request for notice, the effectiveness of the original request is continued for five years from the time when it would otherwise have lapsed. Succeeding renewal requests may be submitted in the same manner. The request for notice and renewals thereof shall be recorded in the office of the county recorder of the county in which the security real property is situated. The rights and obligations specified in this section shall inure to the benefit of, or pass to, as the case may be, successors in interest of parties specified in this section. Any successor in interest of a party entitled to notice under this section shall file a request for that notice with any beneficiary or mortgagee of the senior lien and shall pay a processing fee of fifteen dollars ($15). No new written consent shall be required from the trustor or mortgagor.

(c) Unless the delinquency has been cured, within 15 days following the end of four months from any delinquency in payments of principal or interest on any obligation secured by the senior lien which delinquency exists or occurs on or after 10 days from the mailing of the request for notice or the recording of that request, whichever occurs later, the beneficiary or mortgagee shall give written notice to the requester of the fact of any delinquency and the amount thereof.

The notice shall be given by personal service, or by deposit in the mail, first-class postage paid. Following the recording of any notice of default pursuant to Section 2924 with respect to the same delinquency, no notice or further notice shall be required pursuant to this section.

(d) If the beneficiary or mortgagee of any such senior lien fails to give notice to the requester as required in subdivision (c), and a subsequent foreclosure or trustee’s sale of the security property occurs, the beneficiary or mortgagee shall be liable to the requester for any monetary damage due to the failure to provide notice within the time period specified in subdivision (c) which the requester has sustained from the date on which notice should have been given to the earlier of the date on which the notice is given or the date of the recording of the notice of default under Section 2924, and shall also forfeit to the requester the sum of three hundred dollars ($300). A showing by the beneficiary or mortgagee by a preponderance of the evidence that the failure to provide timely notice as required by subdivision (c) resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error shall be a defense to any liability for that failure.

(e) If any beneficiary or mortgagee, or agent which it had designated for the purpose of receiving loan payments, has been succeeded in interest by any other person, any request for notice received pursuant to this section shall be transmitted promptly to that person.

(f) Any failure to comply with the provisions of this section shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.

(g) Upon satisfaction of an obligation secured by a junior lien with respect to which a notice request was made pursuant to this section, the beneficiary or mortgagee that made the request shall communicate that fact in writing to the senior lienholder to whom the request was made. The communication shall specify that provision of notice pursuant to the prior request under this section is no longer required.

2924f.
(a) As used in this section and Sections 2924g and 2924h, “property” means real property or a leasehold estate therein, and “calendar week” means Monday through Saturday, inclusive.

(b)

(1) Except as provided in subdivision (c), before any sale of property can be made under the power of sale contained in any deed of trust or mortgage, or any resale resulting from a rescission for a failure of consideration pursuant to subdivision (c) of Section 2924h, notice of the sale thereof shall be given by posting a written notice of the time of sale and of the street address and the specific place at the street address where the sale will be held, and describing the property to be sold, at least 20 days before the date of sale in one public place in the city where the property is to be sold, if the property is to be sold in a city, or, if not, then in one public place in the judicial district in which the property is to be sold, and publishing a copy once a week for three consecutive calendar weeks, the first publication to be at least 20 days before the date of sale, in a newspaper of general circulation published in the city in which the property or some part thereof is situated, if any part thereof is situated in a city, if not, then in a newspaper of general circulation published in the judicial district in which the property or some part thereof is situated, or in case no newspaper of general circulation is published in the city or judicial district, as the case may be, in a newspaper of general circulation published in the county in which the property or some part thereof is situated, or in case no newspaper of general circulation is published in the city or judicial district or county, as the case may be, in a newspaper of general circulation published in the county in this state that (A) is contiguous to the county in which the property or some part thereof is situated and (B) has, by comparison with all similarly contiguous counties, the highest population based upon total county population as determined by the most recent federal decennial census published by the Bureau of the Census. A copy of the notice of sale shall also be posted in a conspicuous place on the property to be sold at least 20 days before the date of sale, where possible and where not restricted for any reason. If the property is a single-family residence the posting shall be on a door of the residence, but, if not possible or restricted, then the notice shall be posted in a conspicuous place on the property; however, if access is denied because a common entrance to the property is restricted by a guard gate or similar impediment, the property may be posted at that guard gate or similar impediment to any development community. Additionally, the notice of sale shall conform to the minimum requirements of Section 6043 of the Government Code and be recorded with the county recorder of the county in which the property or some part thereof is situated at least 14 days prior to the date of sale. The notice of sale shall contain the name, street address in this state, which may reflect an agent of the trustee, and either a toll-free telephone number or telephone number in this state of the trustee, and the name of the original trustor, and also shall contain the statement required by paragraph (3) of subdivision (c). In addition to any other description of the property, the notice shall describe the property by giving its street address, if any, or other common designation, if any, and a county assessor’s parcel number; but if the property has no street address or other common designation, the notice shall contain a legal description of the property, the name and address of the beneficiary at whose request the sale is to be conducted, and a statement that directions may be obtained pursuant to a written request submitted to the beneficiary within 10 days from the first publication of the notice. Directions shall be deemed reasonably sufficient to locate the property if information as to the location of the property is given by reference to the direction and approximate distance from the nearest crossroads, frontage road, or access road. If a legal description or a county assessor’s parcel number and either a street address or another common designation of the property is given, the validity of the notice and the validity of the sale shall not be affected by the fact that the street address, other common designation, name and address of the beneficiary, or the directions obtained therefrom are erroneous or that the street address, other common designation, name and address of the beneficiary, or directions obtained therefrom are omitted. The term “newspaper of general circulation,” as used in this section, has the same meaning as defined in Article 1 (commencing with Section 6000) of Chapter 1 of Division 7 of Title 1 of the Government Code.

The notice of sale shall contain a statement of the total amount of the unpaid balance of the obligation secured by the property to be sold and reasonably estimated costs, expenses, advances at the time of the initial publication of the notice of sale, and, if republished pursuant to a cancellation of a cash equivalent pursuant to subdivision (d) of Section 2924h, a reference of that fact; provided, that the trustee shall incur no liability for any good faith error in stating the proper amount, including any amount provided in good faith by or on behalf of the beneficiary. An inaccurate statement of this amount shall not affect the validity of any sale to a bona fide purchaser for value, nor shall the failure to post the notice of sale on a door as provided by this subdivision affect the validity of any sale to a bona fide purchaser for value.

(2) If the sale of the property is to be a unified sale as provided in subparagraph (B) of paragraph (1) of subdivision (a) of Section 9604 of the Commercial Code, the notice of sale shall also contain a description of the personal property or fixtures to be sold. In the case where it is contemplated that all of the personal property or fixtures are to be sold, the description in the notice of the personal property or fixtures shall be sufficient if it is the same as the description of the personal property or fixtures contained in the agreement creating the security interest in or encumbrance on the personal property or fixtures or the filed financing statement relating to the personal property or fixtures. In all other cases, the description in the notice shall be sufficient if it would be a sufficient description of the personal property or fixtures under Section 9108 of the Commercial Code. Inclusion of a reference to or a description of personal property or fixtures in a notice of sale hereunder shall not constitute an election by the secured party to conduct a unified sale pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of Section 9604 of the Commercial Code, shall not obligate the secured party to conduct a unified sale pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of Section 9604 of the Commercial Code, and in no way shall render defective or noncomplying either that notice or a sale pursuant to that notice by reason of the fact that the sale includes none or less than all of the personal property or fixtures referred to or described in the notice. This paragraph shall not otherwise affect the obligations or duties of a secured party under the Commercial Code.

(c)

(1) This subdivision applies only to deeds of trust or mortgages which contain a power of sale and which are secured by real property containing a single-family, owner-occupied residence, where the obligation secured by the deed of trust or mortgage is contained in a contract for goods or services subject to the provisions of the Unruh Act (Chapter 1 (commencing with Section 1801) of Title 2 of Part 4 of Division 3).

(2) Except as otherwise expressly set forth in this subdivision, all other provisions of law relating to the exercise of a power of sale shall govern the exercise of a power of sale contained in a deed of trust or mortgage described in paragraph (1).

(3) If any default of the obligation secured by a deed of trust or mortgage described in paragraph (1) has not been cured within 30 days after the recordation of the notice of default, the trustee or mortgagee shall mail to the trustor or mortgagor, at his or her last known address, a copy of the following statement:

YOU ARE IN DEFAULT UNDER A
___________________________________________________,
Deed of trust or mortgage
DATED ______. UNLESS YOU TAKE ACTION TO PROTECT
YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.
IF YOU NEED AN EXPLANATION OF THE NATURE OF THE
PROCEEDING AGAINST YOU, YOU SHOULD CONTACT A LAWYER.

(4) All sales of real property pursuant to a power of sale contained in any deed of trust or mortgage described in paragraph (1) shall be held in the county where the residence is located and shall be made to the person making the highest offer. The trustee may receive offers during the 10-day period immediately prior to the date of sale and if any offer is accepted in writing by both the trustor or mortgagor and the beneficiary or mortgagee prior to the time set for sale, the sale shall be postponed to a date certain and prior to which the property may be conveyed by the trustor to the person making the offer according to its terms. The offer is revocable until accepted. The performance of the offer, following acceptance, according to its terms, by a conveyance of the property to the offeror, shall operate to terminate any further proceeding under the notice of sale and it shall be deemed revoked.

(5) In addition to the trustee fee pursuant to Section 2924c, the trustee or mortgagee pursuant to a deed of trust or mortgage subject to this subdivision shall be entitled to charge an additional fee of fifty dollars ($50).

(6) This subdivision applies only to property on which notices of default were filed on or after the effective date of this subdivision.

2924g.
(a) All sales of property under the power of sale contained in any deed of trust or mortgage shall be held in the county where the property or some part thereof is situated, and shall be made at auction, to the highest bidder, between the hours of 9 a.m. and 5 p.m. on any business day, Monday through Friday.

The sale shall commence at the time and location specified in the notice of sale. Any postponement shall be announced at the time and location specified in the notice of sale for commencement of the sale or pursuant to paragraph (1) of subdivision (c).

If the sale of more than one parcel of real property has been scheduled for the same time and location by the same trustee, (1) any postponement of any of the sales shall be announced at the time published in the notice of sale, (2) the first sale shall commence at the time published in the notice of sale or immediately after the announcement of any postponement, and (3) each subsequent sale shall take place as soon as possible after the preceding sale has been completed.

(b) When the property consists of several known lots or parcels, they shall be sold separately unless the deed of trust or mortgage provides otherwise. When a portion of the property is claimed by a third person, who requires it to be sold separately, the portion subject to the claim may be thus sold. The trustor, if present at the sale, may also, unless the deed of trust or mortgage otherwise provides, direct the order in which property shall be sold, when the property consists of several known lots or parcels which may be sold to advantage separately, and the trustee shall follow that direction. After sufficient property has been sold to satisfy the indebtedness, no more can be sold.

If the property under power of sale is in two or more counties, the public auction sale of all of the property under the power of sale may take place in any one of the counties where the property or a portion thereof is located.

(c)

(1) There may be a postponement or postponements of the sale proceedings, including a postponement upon instruction by the beneficiary to the trustee that the sale proceedings be postponed, at any time prior to the completion of the sale for any period of time not to exceed a total of 365 days from the date set forth in the notice of sale. The trustee shall postpone the sale in accordance with any of the following:

(A) Upon the order of any court of competent jurisdiction.

(B) If stayed by operation of law.

(C) By mutual agreement, whether oral or in writing, of any trustor and any beneficiary or any mortgagor and any mortgagee.

(D) At the discretion of the trustee.

(2) In the event that the sale proceedings are postponed for a period or periods totaling more than 365 days, the scheduling of any further sale proceedings shall be preceded by giving a new notice of sale in the manner prescribed in Section 2924f. New fees incurred for the new notice of sale shall not exceed the amounts specified in Sections 2924c and 2924d, and shall not exceed reasonable costs that are necessary to comply with this paragraph.

(d) The notice of each postponement and the reason therefor shall be given by public declaration by the trustee at the time and place last appointed for sale. A public declaration of postponement shall also set forth the new date, time, and place of sale and the place of sale shall be the same place as originally fixed by the trustee for the sale. No other notice of postponement need be given. However, the sale shall be conducted no sooner than on the seventh day after the earlier of (1) dismissal of the action or (2) expiration or termination of the injunction, restraining order, or stay that required postponement of the sale, whether by entry of an order by a court of competent jurisdiction, operation of law, or otherwise, unless the injunction, restraining order, or subsequent order expressly directs the conduct of the sale within that seven-day period. For purposes of this subdivision, the seven-day period shall not include the day on which the action is dismissed, or the day on which the injunction, restraining order, or stay expires or is terminated. If the sale had been scheduled to occur, but this subdivision precludes its conduct during that seven-day period, a new notice of postponement shall be given if the sale had been scheduled to occur during that seven-day period. The trustee shall maintain records of each postponement and the reason therefor.

(e) Notwithstanding the time periods established under subdivision

(d), if postponement of a sale is based on a stay imposed by Title 11 of the United States Code (bankruptcy), the sale shall be conducted no sooner than the expiration of the stay imposed by that title and the seven-day provision of subdivision (d) shall not apply.

2924h.
(a) Each and every bid made by a bidder at a trustee’s sale under a power of sale contained in a deed of trust or mortgage shall be deemed to be an irrevocable offer by that bidder to purchase the property being sold by the trustee under the power of sale for the amount of the bid. Any second or subsequent bid by the same bidder or any other bidder for a higher amount shall be a cancellation of the prior bid.

(b) At the trustee’s sale the trustee shall have the right (1) to require every bidder to show evidence of the bidder’s ability to deposit with the trustee the full amount of his or her final bid in cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee prior to, and as a condition to, the recognizing of the bid, and to conditionally accept and hold these amounts for the duration of the sale, and (2) to require the last and highest bidder to deposit, if not deposited previously, the full amount of the bidder’s final bid in cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee, immediately prior to the completion of the sale, the completion of the sale being so announced by the fall of the hammer or in another customary manner. The present beneficiary of the deed of trust under foreclosure shall have the right to offset his or her bid or bids only to the extent of the total amount due the beneficiary including the trustee’s fees and expenses.

(c) In the event the trustee accepts a check drawn by a credit union or a savings and loan association pursuant to this subdivision or a cash equivalent designated in the notice of sale, the trustee may withhold the issuance of the trustee’s deed to the successful bidder submitting the check drawn by a state or federal credit union or savings and loan association or the cash equivalent until funds become available to the payee or endorsee as a matter of right.

For the purposes of this subdivision, the trustee’s sale shall be deemed final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 8 a.m. on the actual date of sale if the trustee’s deed is recorded within 15 calendar days after the sale, or the next business day following the 15th day if the county recorder in which the property is located is closed on the 15th day. However, the sale is subject to an automatic rescission for a failure of consideration in the event the funds are not “available for withdrawal” as defined in Section 12413.1 of the Insurance Code. The trustee shall send a notice of rescission for a failure of consideration to the last and highest bidder submitting the check or alternative instrument, if the address of the last and highest bidder is known to the trustee.

If a sale results in an automatic right of rescission for failure of consideration pursuant to this subdivision, the interest of any lienholder shall be reinstated in the same priority as if the previous sale had not occurred.

(d) If the trustee has not required the last and highest bidder to deposit the cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee in the manner set forth in paragraph (2) of subdivision (b), the trustee shall complete the sale. If the last and highest bidder then fails to deliver to the trustee, when demanded, the amount of his or her final bid in cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee, that bidder shall be liable to the trustee for all damages which the trustee may sustain by the refusal to deliver to the trustee the amount of the final bid, including any court costs and reasonable attorneys’ fees.

If the last and highest bidder willfully fails to deliver to the trustee the amount of his or her final bid in cash, a cashier’s check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee, or if the last and highest bidder cancels a cashiers check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent that has been designated in the notice of sale as acceptable to the trustee, that bidder shall be guilty of a misdemeanor punishable by a fine of not more than two thousand five hundred dollars ($2,500).

In the event the last and highest bidder cancels an instrument submitted to the trustee as a cash equivalent, the trustee shall provide a new notice of sale in the manner set forth in Section 2924f and shall be entitled to recover the costs of the new notice of sale as provided in Section 2924c.

(e) Any postponement or discontinuance of the sale proceedings shall be a cancellation of the last bid.

(f) In the event that this section conflicts with any other statute, then this section shall prevail.

(g) It shall be unlawful for any person, acting alone or in concert with others, (1) to offer to accept or accept from another, any consideration of any type not to bid, or (2) to fix or restrain bidding in any manner, at a sale of property conducted pursuant to a power of sale in a deed of trust or mortgage. However, it shall not be unlawful for any person, including a trustee, to state that a property subject to a recorded notice of default or subject to a sale conducted pursuant to this chapter is being sold in an “as-is” condition.

In addition to any other remedies, any person committing any act declared unlawful by this subdivision or any act which would operate as a fraud or deceit upon any beneficiary, trustor, or junior lienor shall, upon conviction, be fined not more than ten thousand dollars ($10,000) or imprisoned in the county jail for not more than one year, or be punished by both that fine and imprisonment.

2924i.
(a) This section applies to loans secured by a deed of trust or mortgage on real property containing one to four residential units at least one of which at the time the loan is made is or is to be occupied by the borrower if the loan is for a period in excess of one year and is a balloon payment loan.

(b) This section shall not apply to (1) open end credit as defined in Regulation Z, whether or not the transaction is otherwise subject to Regulation Z, (2) transactions subject to Section 2956, or (3) loans made for the principal purpose of financing the construction of one or more residential units.

(c) At least 90 days but not more than 150 days prior to the due date of the final payment on a loan that is subject to this section, the holder of the loan shall deliver or mail by first-class mail, with a certificate of mailing obtained from the United States Postal Service, to the trustor, or his or her successor in interest, at the last known address of that person, a written notice which shall include all of the following:

(1) A statement of the name and address of the person to whom the final payment is required to be paid.

(2) The date on or before which the final payment is required to be paid.

(3) The amount of the final payment, or if the exact amount is unknown, a good faith estimate of the amount thereof, including unpaid principal, interest and any other charges, such amount to be determined assuming timely payment in full of all scheduled installments coming due between the date the notice is prepared and the date when the final payment is due.

(4) If the borrower has a contractual right to refinance the final payment, a statement to that effect.

If the due date of the final payment of a loan subject to this section is extended prior to the time notice is otherwise required under this subdivision, this notice requirement shall apply only to the due date as extended (or as subsequently extended).

(d) For purposes of this section:

(1) A “balloon payment loan” is a loan which provides for a final payment as originally scheduled which is more than twice the amount of any of the immediately preceding six regularly scheduled payments or which contains a call provision; provided, however, that if the call provision is not exercised by the holder of the loan, the existence of the unexercised call provision shall not cause the loan to be deemed to be a balloon payment loan.

(2) “Call provision” means a loan contract term that provides the holder of the loan with the right to call the loan due and payable either after a specified period has elapsed following closing or after a specified date.

(3) “Regulation Z” means any rule, regulation, or interpretation promulgated by the Board of Governors of the Federal Reserve System under the Federal Truth in Lending Act, as amended (15 U.S.C. Sec. 1601 et seq.), and any interpretation or approval thereof issued by an official or employee of the Federal Reserve System duly authorized by the board under the Truth in Lending Act, as amended, to issue such interpretations or approvals.

(e) Failure to provide notice as required by subdivision (a) does not extinguish any obligation of payment by the borrower, except that the due date for any balloon payment shall be the date specified in the balloon payment note, or 90 days from the date of delivery or mailing of the notice required by subdivision (a), or the due date specified in the notice required by subdivision (a), whichever date is later. If the operation of this section acts to extend the term of any note, interest shall continue to accrue for the extended term at the contract rate and payments shall continue to be due at any periodic interval and on any payment schedule specified in the note and shall be credited to principal or interest under the terms of the note. Default in any extended periodic payment shall be considered a default under terms of the note or security instrument.

(f)

(1) The validity of any credit document or of any security document subject to the provisions of this section shall not be invalidated solely because of the failure of any person to comply with this section. However, any person who willfully violates any provision of this section shall be liable in the amount of actual damages suffered by the debtor as the proximate result of the violation, and, if the debtor prevails in any suit to recover that amount, for reasonable attorney’s fees.

(2) No person may be held liable in any action under this section if it is shown by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error.

(g) The provisions of this section shall apply to any note executed on or after January 1, 1984.

2924j.
(a) Unless an interpleader action has been filed, within 30 days of the execution of the trustee’s deed resulting from a sale in which there are proceeds remaining after payment of the amounts required by paragraphs (1) and (2) of subdivision (a) of Section 2924k, the trustee shall send written notice to all persons with recorded interests in the real property as of the date immediately prior to the trustee’s sale who would be entitled to notice pursuant to subdivisions (b) and (c) of Section 2924b. The notice shall be sent by first-class mail in the manner provided in paragraph (1) of subdivision (c) of Section 2924b and inform each entitled person of each of the following:

(1) That there has been a trustee’s sale of the described real property.

(2) That the noticed person may have a claim to all or a portion of the sale proceeds remaining after payment of the amounts required by paragraphs (1) and (2) of subdivision (a) of Section 2924k.

(3) The noticed person may contact the trustee at the address provided in the notice to pursue any potential claim.

(4) That before the trustee can act, the noticed person may be required to present proof that the person holds the beneficial interest in the obligation and the security interest therefor. In the case of a promissory note secured by a deed of trust, proof that the person holds the beneficial interest may include the original promissory note and assignment of beneficial interests related thereto. The noticed person shall also submit a written claim to the trustee, executed under penalty of perjury, stating the following:

(A) The amount of the claim to the date of trustee’s sale.

(B) An itemized statement of the principal, interest, and other charges.

(C) That claims must be received by the trustee at the address stated in the notice no later than 30 days after the date the trustee sends notice to the potential claimant.

(b) The trustee shall exercise due diligence to determine the priority of the written claims received by the trustee to the trustee’ s sale surplus proceeds from those persons to whom notice was sent pursuant to subdivision (a). In the event there is no dispute as to the priority of the written claims submitted to the trustee, proceeds shall be paid within 30 days after the conclusion of the notice period. If the trustee has failed to determine the priority of written claims within 90 days following the 30-day notice period, then within 10 days thereafter the trustee shall deposit the funds with the clerk of the court pursuant to subdivision (c) or file an interpleader action pursuant to subdivision (e). Nothing in this section shall preclude any person from pursuing other remedies or claims as to surplus proceeds.

(c) If, after due diligence, the trustee is unable to determine the priority of the written claims received by the trustee to the trustee’s sale surplus of multiple persons or if the trustee determines there is a conflict between potential claimants, the trustee may file a declaration of the unresolved claims and deposit with the clerk of the superior court of the county in which the sale occurred, that portion of the sales proceeds that cannot be distributed, less any fees charged by the clerk pursuant to this subdivision. The declaration shall specify the date of the trustee’s sale, a description of the property, the names and addresses of all persons sent notice pursuant to subdivision (a), a statement that the trustee exercised due diligence pursuant to subdivision (b), that the trustee provided written notice as required by subdivisions (a) and (d) and the amount of the sales proceeds deposited by the trustee with the court. Further, the trustee shall submit a copy of the trustee’s sales guarantee and any information relevant to the identity, location, and priority of the potential claimants with the court and shall file proof of service of the notice required by subdivision (d) on all persons described in subdivision (a).

The clerk shall deposit the amount with the county treasurer or, if a bank account has been established for moneys held in trust under paragraph (2) of subdivision (a) of Section 77009 of the Government Code, in that account, subject to order of the court upon the application of any interested party. The clerk may charge a reasonable fee for the performance of activities pursuant to this subdivision equal to the fee for filing an interpleader action pursuant to Chapter 5.8 (commencing with Section 70600) of Title 8 of the Government Code. Upon deposit of that portion of the sale proceeds that cannot be distributed by due diligence, the trustee shall be discharged of further responsibility for the disbursement of sale proceeds. A deposit with the clerk of the court pursuant to this subdivision may be either for the total proceeds of the trustee’ s sale, less any fees charged by the clerk, if a conflict or conflicts exist with respect to the total proceeds, or that portion that cannot be distributed after due diligence, less any fees charged by the clerk.

(d) Before the trustee deposits the funds with the clerk of the court pursuant to subdivision (c), the trustee shall send written notice by first-class mail, postage prepaid, to all persons described in subdivision (a) informing them that the trustee intends to deposit the funds with the clerk of the court and that a claim for the funds must be filed with the court within 30 days from the date of the notice, providing the address of the court in which the funds were deposited, and a telephone number for obtaining further information.

Within 90 days after deposit with the clerk, the court shall consider all claims filed at least 15 days before the date on which the hearing is scheduled by the court, the clerk shall serve written notice of the hearing by first-class mail on all claimants identified in the trustee’s declaration at the addresses specified therein. Where the amount of the deposit is twenty-five thousand dollars ($25,000) or less, a proceeding pursuant to this section is a limited civil case. The court shall distribute the deposited funds to any and all claimants entitled thereto.

(e) Nothing in this section restricts the ability of a trustee to file an interpleader action in order to resolve a dispute about the proceeds of a trustee’s sale. Once an interpleader action has been filed, thereafter the provisions of this section do not apply.

(f) “Due diligence,” for the purposes of this section means that the trustee researched the written claims submitted or other evidence of conflicts and determined that a conflict of priorities exists between two or more claimants which the trustee is unable to resolve.

(g) To the extent required by the Unclaimed Property Law, a trustee in possession of surplus proceeds not required to be deposited with the court pursuant to subdivision (b) shall comply with the Unclaimed Property Law (Chapter 7 (commencing with Section 1500) of Title 10 of Part 3 of the Code of Civil Procedure).

(h) The trustee, beneficiary, or counsel to the trustee or beneficiary, is not liable for providing to any person who is entitled to notice pursuant to this section, information set forth in, or a copy of, subdivision (h) of Section 2945.3.

2924k.
(a) The trustee, or the clerk of the court upon order to the clerk pursuant to subdivision (d) of Section 2924j, shall distribute the proceeds, or a portion of the proceeds, as the case may be, of the trustee’s sale conducted pursuant to Section 2924h in the following order of priority:

(1) To the costs and expenses of exercising the power of sale and of sale, including the payment of the trustee’s fees and attorney’s fees permitted pursuant to subdivision (b) of Section 2924d and subdivision (b) of this section.

(2) To the payment of the obligations secured by the deed of trust or mortgage which is the subject of the trustee’s sale.

(3) To satisfy the outstanding balance of obligations secured by any junior liens or encumbrances in the order of their priority.

(4) To the trustor or the trustor’s successor in interest. In the event the property is sold or transferred to another, to the vested owner of record at the time of the trustee’s sale.

(b) A trustee may charge costs and expenses incurred for such items as mailing and a reasonable fee for services rendered in connection with the distribution of the proceeds from a trustee’s sale, including, but not limited to, the investigation of priority and validity of claims and the disbursement of funds. If the fee charged for services rendered pursuant to this subdivision does not exceed one hundred dollars ($100), or one hundred twenty-five dollars ($125) where there are obligations specified in paragraph (3) of subdivision (a), the fee is conclusively presumed to be reasonable.

2924l.
(a) In the event that a trustee under a deed of trust is named in an action or proceeding in which that deed of trust is the subject, and in the event that the trustee maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the performance of its duties as trustee, then, at any time, the trustee may file a declaration of nonmonetary status. The declaration shall be served on the parties in the manner set forth in Chapter 5 (commencing with Section 1010) of Title 14 of the Code of Civil Procedure.

(b) The declaration of nonmonetary status shall set forth the status of the trustee as trustee under the deed of trust that is the subject of the action or proceeding, that the trustee knows or maintains a reasonable belief that it has been named as a defendant in the proceeding solely in its capacity as a trustee under the deed of trust, its reasonable belief that it has not been named as a defendant due to any acts or omissions on its part in the performance of its duties as trustee, the basis for that knowledge or reasonable belief, and that it agrees to be bound by whatever order or judgment is issued by the court regarding the subject deed of trust.

(c) The parties who have appeared in the action or proceeding shall have 15 days from the service of the declaration by the trustee in which to object to the nonmonetary judgment status of the trustee. Any objection shall set forth the factual basis on which the objection is based and shall be served on the trustee.

(d) In the event that no objection is served within the 15-day objection period, the trustee shall not be required to participate any further in the action or proceeding, shall not be subject to any monetary awards as and for damages, attorneys’ fees or costs, shall be required to respond to any discovery requests as a nonparty, and shall be bound by any court order relating to the subject deed of trust that is the subject of the action or proceeding.

(e) In the event of a timely objection to the declaration of nonmonetary status, the trustee shall thereafter be required to participate in the action or proceeding.

Additionally, in the event that the parties elect not to, or fail to, timely object to the declaration of nonmonetary status, but later through discovery, or otherwise, determine that the trustee should participate in the action because of the performance of its duties as a trustee, the parties may file and serve on all parties and the trustee a motion pursuant to Section 473 of the Code of Civil Procedure that specifies the factual basis for the demand. Upon the court’s granting of the motion, the trustee shall thereafter be required to participate in the action or proceeding, and the court shall provide sufficient time prior to trial for the trustee to be able to respond to the complaint, to conduct discovery, and to bring other pretrial motions in accordance with the Code of Civil Procedure.

(f) Upon the filing of the declaration of nonmonetary status, the time within which the trustee is required to file an answer or other responsive pleading shall be tolled for the period of time within which the opposing parties may respond to the declaration. Upon the timely service of an objection to the declaration on nonmonetary status, the trustee shall have 30 days from the date of service within which to file an answer or other responsive pleading to the complaint or cross-complaint.

(g) For purposes of this section, “trustee” includes any agent or employee of the trustee who performs some or all of the duties of a trustee under this article, and includes substituted trustees and agents of the beneficiary or trustee.


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MERS Brief

8 06 2010

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TABLE OF CONTENTS
TABLE OF AUTHORITIES …………………………………………………………………………. i
INTERESTS OF AMICI CURIAE…………………………………………………………………..1
PRELIMINARY STATEMENT …………………………………………………………………….2
ARGUMENT……………………………………………………………………………………………….4
I. The MERS System Was Designed Without Regard to Consumers’ Rights4
II. MERS’ Claims That the MERS System Is Beneficial to
Consumers Are Unsupported. …………………………………………………………….6
III. Homeowners Have a Right to Know Who Owns Their Loans………………..8
IV. The MERS System Causes Significant Confusion Among Borrowers,
and Has a Particularly Detrimental Impact on the Elderly and
Other Vulnerable Borrowers Frequently Victimized by
Predatory Lenders. ………………………………………………………………………… 14
V. The Public Has a Significant and Enduring Interest in Preserving and
Protecting the Free Public Databases Created by the Land and Court
Records of This Nation. …………………………………………………………………. 18
A. Public land and court data records facilitate research investigating
the root causes of a variety of mortgage and other land related
problems………………………………………………………………………………….. 18
B. The public databases have played an important role in facilitating
understanding and government response to the recent “foreclosure
boom.”…………………………………………………………………………………….. 23
C. Through its penetration of the public databases MERS has caused
a dramatic deterioration in the quality and quantity of publicly
available information. ……………………………………………………………….. 28
D. The MERS Shield Creates an Irretrievable Void in the Property
Records that Harms Many Constituencies……………………………………. 32
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E. Restoration and enhancement of the public database is critical to enable
government to function effectively……………………………………………… 33
F. More, not less public data is needed to enable a carefully targeted and
rapid governmental response to problems in the housing market. …… 35
VI. MERS’ Subversion of the Public Policy Behind Public Recordings Costs
County and City Clerks Over a Billion Dollars. ………………………………… 38
VII. MERS Lacks Standing to Bring Foreclosure Actions in Its Name……….. 39
CONCLUSION…………………………………………………………………………………………. 46
i
TABLE OF AUTHORITIES
Cases
Altegra Credit Co. v. Tin Chu et al.,
No. 04326-2004 (Kings County Supreme Ct. March 25, 2004) ………………. 24, 36
Associates Home Equity v. Troup,
343 N.J. Super. 254 (App. Div. 2001)……………………………………………………….. 21
Countrywide Home Loans v. Hannaford,
2004 WL 1836744 (Ohio Ct. App. Aug. 18, 2004). ……………………………………. 17
Deutsche Bank National Trust Company as Trustee v. Primrose,
No. 05-25796 (N.Y. Sup. Ct., Suffolk Cty., July 13, 2006);…………………………. 46
Everhome Mortgage Company v. Hendriks,
No. 05-024042 (N.Y. Sup. Ct., Suffolk Cty., June 27, 2006);………………………. 46
Freedom Mortg. Corp. v. Burnham Mortg., Inc.,
2006 WL 695467 (N.D. Ill., Mar. 13, 2006) ………………………………………………. 17
In re BNT Terminals, Inc.,
125 B.R. 963, 970 (Bankr. N.D. Ill. 1990)…………………………………………………. 45
Kluge v. Fugazy,
145 A.D.2d 537, 536 N.Y.S.2d 92 (2d Dept. 1988)…………………………………….. 44
LaSalle Bank v. Holguin, No. 06-9286, slip opinion (N.Y. Sup. Ct. Suffolk Cty.,
Aug. 9, 2006);…………………………………………………………………………………… 43, 45
LaSalle Bank v. Lamy,
2006 N.Y. Misc. Lexis 2127 (NY. Sup. Ct., Suffolk Cty., Aug. 17, 2006)……. 46
MERS v. Bomba,
No. 1645/03 (N.Y. Sup. Ct., Kings County). ……………………………………………… 48
MERS v. DeMarco,
No. 05-1372, slip op. (N.Y. Sup. Ct., Suffolk Cty., April 11, 2005) ……………… 46
MERS v. Griffin,
No.16-2004-CA-002155, slip op. (Fla. Cir. Ct. May 27, 2004)…………………….. 49
MERS v. Ramdoolar,
No. 05-019863 (N.Y. Sup. Ct., Suffolk Cty., Mar. 7, 2006);………………………… 46
MERS v. Shuster,
No. 05-26354/06 (N.Y. Sup. Ct., Suffolk Cty., July 13, 2006)………………… 44, 46
MERS v. Trapani,
No. 04-19057, slip op. at 1 (N.Y. Sup. Ct., Suffolk Cty., Mar. 7, 2005):……….. 48
MERS v. Wells,
No. 06-5242, slip op. at 2 (N.Y. Sup. Ct., Suffolk Cty., Sept. 25, 2006)………… 45
MERS v.Delzatto,
No. 05-020490 (N.Y. Sup. Ct., Suffolk Cty., Dec. 9, 2005)…………………………. 46
ii
MERS, Inc. v. Parker,
No. 017622/2004, slip op. at 2 (N.Y. Sup. Ct., Suffolk Cty. Oct. 19, 2004) …… 46
MERS, Inc. v. Schoenster,
No. 16969-2004, (N.Y. Sup. Ct., Suffolk Cty., Sept. 15, 2004); …………………… 47
MERS. v. Burek,
798 N.Y.S.2d 346 (N.Y. Sup. Ct. 2004)…………………………………………………….. 44
MERS. v. Burek,
798 N.Y.S.2d 346, 347 (N.Y. Sup. Ct., Richmond Cty. 2004)……………………… 46
Merscorp, Inc. v. Romaine,
No. 9688/01, slip op. (N.Y. Sup. Ct., Suffolk Co. May 12, 2004)…………………….8
Miguel v. Country Funding Corp.,
309 F.3d 1161 (9th Cir. 2002). …………………………………………………………………. 16
Mortg. Elec. Registration Sys. v. Estrella,
390 F.3d 522 (7th Cir. 2004) ……………………………………………………………………. 16
Mortg. Elec. Registration Sys. v. Neb. Dep’t of Banking & Fin.,
704 N.W.2d 784 (Neb. 2005) ……………………………………………………………… 16, 17
Mortg. Elec. Registration Sys., Inc. v. Griffin,
No.16-2004-CA-002155, slip op. (Fla. Cir. Ct. May 27, 2004)…………………….. 47
Mortg. Elec. Registration Sys., Inc. v. Azize,
No. 05-001295-CI-11 (Fla. Cir. Ct. Pinellas Cty. Apr. 18, 2005)………………….. 47
Mortgage Electronic Registration Systems, Inc. v. Rees,
2003 Conn. Super. LEXIS 2437 (Conn. Superior Ct. September 4, 2003). ……. 44
People v. Albertina,
09141-2005 (Kings County Supreme Ct. Sept. 28, 2006) ………………………. 24, 36
People v. Constant,
No. 01843A-2006 (Suffolk Supreme Ct. Oct. 12, 2006)( ……………………….. 24, 36
People v. Larman,
No. 06253-2005 (Kings County Supreme Ct. Sept. 20, 2006) ………………… 24, 36
People v. Sandella,
No. 02899-2006 (Kings County Supreme. Ct. Sept. 27, 2006) ……………….. 24, 36
Roberts v. WMC Mortg. Corp.,
173 Fed. Appx. 575 (9th Cir. 2006). …………………………………………………………. 16
Taylor, Bean & Whitaker, Mortg. Corp. v. Brown,
583 S.E.2d 844 (Ga. 2003) ………………………………………………………………………. 47
Statutes
Home Mortgage Disclosure Act, 12 USC § 2801 et. seq ………………………………… 28
N.Y. Banking Law § 6-1…………………………………………………………………………….. 31
N.Y. General Business Law § 349……………………………………………………………….. 18
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N.Y. Gen. Bus. Law § 771-a……………………………………………………………………….. 31
N.Y. Real Prop. Acts. Law § 1302 ………………………………………………………………. 31
Truth-in-Lending Act, 15 U.S.C. § 1601 et seq………………………………………… 15, 16
Truth in Lending Act, Regulation Z § 226.23 ……………………………………………….. 15
U.C.C. §§ 9-203(g), 9-308(e); …………………………………………………………………….. 44
Regulations
69 Fed. Reg. 16,769 (Mar. 31, 2004),…………………………………………………………… 16
Secondary Sources
40 Millionth Loan Registered on MERS (Inside MERS, May/ June 2006),
available at http://www. mersinc.com/newsroom/currentnews.aspx …………….. 42
Alan M. White and Cathy Lesser Mansfield,
Literacy and Contract, 13 STAN. L & POL’Y REV 233 …………………………………. 19
Andrew Harris,
Suffolk Judge Denies Requests by Mortgage Electronic Registration Systems,
N.Y. LAW J. (Aug. 31, 2004) ……………………………………………………………………. 47
Bunce, Harold, Gruenstein, Debbie et al.,
Subprime Lending: The Smoking Gun of Predatory Lending? (HUD 2001),
http://www.huduser.org/Publications/pdf/brd/12Bunce.pdf ………………. 24, 27, 32
D. Rose, Chicago Foreclosure Update 2005, http://www.nticus.
org/currentevents/press/pdf/chicagoforeclosure_update.pdf…………………….. 25
D. Rose, Chicago Foreclosure Update 2006 (July), http://www.nticus.
org/documents/ChicagoForeclosureUpdate2006.pdf ………………………………. 25
Daniel Immergluck & Geoff Smith,
The External Costs of Foreclosure: The Impact of Single-Family Mortgage
Foreclosures on Property Values,
17 Housing Pol’y Debate, Issue 1 (2006)……………………………………………… 28, 39
David Rice, Predatory Lending Bill Caught in Debate, Winston-Salem Journal,
April 27, 1999………………………………………………………………………………………… 30
Debbie Gruenstein & Christopher Herbert,
Analyzing Trends in Subprime Originations and Foreclosures: A Case Study of
the Boston Metro Area, 1995-1999 (2000), http://www.abtassociates.com
/reports/20006470781991.pdf ………………………………………………………………….. 27
Duda & Apgar, Mortgage Foreclosures in Atlanta: Patterns and Policy Issues,
2000-2005 (2005) …………………………………………………………………… 30, 35, 38, 39
Federal Financial Institutions Examination Council,
A Guide to HMDA: Getting it Right! (Dec. 2003). ……………………………………… 41
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Jill D. Rein,
Significant Changes to Commencing Foreclosure Actions in the Name of MERS,
available at http://www.usfn.org/AM/Template.cfm?Section=
Article_Library&template=/CM/HTMLDisplay.cfm&ContentID=3899……….. 49
Kathe Newman & Elvin K. Wyly,
Geographies of Mortgage Market Segmentation: The Case of Essex County,
New Jersey, 19 Housing Stud. 53, 54 (Jan. 2004) ………………………………………. 38
Kathleen C. Engel, Do Cities Have Standing? Redressing the Externalities of
Predatory Lending, 38 Conn. L. Rev. 355 (2006). ……………………………………… 25
Kimberly Burnett, Bulbul Kaul, & Chris Herbert,
Analysis of Property Turnover Patterns in Atlanta, Baltimore, Cleveland and
Philadelphia (2004), http://
www.abtassociates.com/reports/analysis_property_turnover_patterns.pdf 27, 31
Kimberly Burnett, Chris Herbert et al.,
Subprime Originations and Foreclosures in New York State: A Case Study of
Nassau, Suffolk, and Westchester Counties (2002)……………………… 21, 24, 30, 31
Les Christie, “Foreclosures Spiked in August,” (Sept. 13, 2006), available at:

http://money.cnn.com/2006/09/13/real_estate/foreclosures_spiking/index.htm?po

stversion=2006091305 ……………………………………………………………………………. 39
Lindley Higgins, Effective Community-Based Strategies for Preventing
Foreclosures,1993-2004 (2005) ………………………………………………………….. 26, 27
Lorain County Reinvestment Fund,
The Expanding Role of Subprime Lending in Ohio’s Burgeoning Foreclosure
Problem: A Three County Study of a Statewide Problem, (2002),
http://cohhio.org/projects/ocrp/SubprimeLendingReport.pdf……………………….. 23
Lynne Dearborn, Mortgage Foreclosures and Predatory Lending in St. Clair
County, Illinois 1996-2000 (2003) ……………………………………………………………. 23
Margot Saunders and Alys Cohen,
Federal Regulation of Consumer Credit: The Cause or the Cure for Predatory
Lending? (Joint Center for Housing Studies 2004)……………………………………… 28
Neal Walters & Sharon Hermanson,
Subprime Mortgage Lending and Older Borrowers (AARP Public Policy
Institute), Data Digest Number 74 (2001)………………………………………………….. 28
Neighborhood Housing Services (NHS) of Chicago,
Preserving Homeownership: Community-Development Implications of the New
Mortgage Market (2004) …………………………………………………………………………. 26
Paul Bellamy, The Expanding Role of Subprime Lending in Ohio’s Burgeoning
Foreclosure Problem: A Three County Study of a Statewide Problem, 1994-2001
(2002)……………………………………………………………………………………………………. 29
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Phyllis K. Slesinger and Daniel McLaughlin,
Mortgage Electronic Registration System, 31 IDAHO L. REV. 805, 811, 814-15
(1995)……………………………………………………………………………………………………….9
Ramon Garcia, Residential Foreclosures in the City of Buffalo,
1990-2000 (2003) ……………………………………………………………………………… 24, 27
Richard Lord, AMERICAN NIGHTMARE: PREDATORY LENDING AND THE
FORECLOSURE OF THE AMERICAN DREAM 157 (Common Courage Press 2005). 22
Richard Stock, Center for Business and Economic Research,
Predation in the Sub-Prime Lending Market: Montgomery County Vol. I., 1994-
2001 (2001), http://www.mvfairhousing.com/cber/pdf/
Executive%20summary.PDF………………………………………………………………. 26, 29
Robert Avery, Kenneth Brevoort, Glenn Canner,
Higher-Priced Home Lending and the 2005 HMDA Data (Sept. 8, 2006) …….. 28
Steve C. Bourassa, Predatory Lending In Jefferson County: A Report to the
Louisville Urban League (Urban Studies Institute, University of Louisville)
(December 2003) ……………………………………………………………………………………. 35
T. Nagazumi & D. Rose,
Preying on Neighborhoods: Subprime mortgage lending and Chicagoland
foreclosures, 1993-1998 (Sept. 21, 1999 …………………………………… 25, 26, 31, 34
The Reinvestment Fund, Mortgage Foreclosure Filings in Delaware (2006) …… 23
The Reinvestment Fund, A Study of Mortgage Foreclosures in Monroe County and
The Commonwealth’s Response (2004) …………………………………………………….. 23
The Reinvestment Fund, Mortgage Foreclosure Filings in Pennsylvania (2005). 23
William C. Apgar & Mark Duda, Collateral Damage: The Municipal Impact of
Today’s Mortgage Foreclosure Boom 1996-2000 (May 11, 2005),

http://www.nw.org/Network/neighborworksprogs/

foreclosuresolutions/documents/Apgar-DudaStudyFinal.pdf…………………. passim
William Apgar, The Municipal Cost of Foreclosures: A Chicago Case Study
(Feb. 27, 2005) http://www.hpfonline.org/PDF/Apgar-
Duda_Study_Full_Version.pdf………………………………………………………. 25, 26, 38
Zach Schiller, Foreclosure Growth in Ohio (2006) ………………………………………… 23
Zach Schiller and Jeremy Iskin, Foreclosure Growth in Ohio: A Brief Update
(2005), http://www.policymattersohio.org/pdf/
Foreclosure_Growth_Ohio_2005.pdf………………………………………………………… 23
Zach Schiller, Whitney Meredith, & Pam Rosado, Home Insecurity 2004:
Foreclosure Growth in Ohio, available at
http://www.policymattersohio.org/pdf/Home_Insecurity_2004.pdf………………. 23
Treatises
Restatement (3d), Property (Mortgages) § 5.4(a) (1997) ………………………………… 44
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Other Authorities
American Community Survey, U.S. Census Bureau (2005). …………………………… 21
Black’s Law Dictionary 727 (6th ed. abr.) ……………………………………………………. 17
Consumer Protection: Federal and State Agencies in Combating Predatory
Lending, United States General Accounting Office, Report to the Chairman and
Ranking Minority Member, Special Committee on Aging, U.S. Senate (January
2004), pp. 99-102……………………………………………………………………………………. 20
Curbing Predatory Home Mortgage Lending, U.S. Dept. of Housing and Urban
Development and U.S. Dept. of the Treasury, 47 (2000), available at
http://www.huduser.org/publications/hsgfin/curbing.html ………………… 19, 32, 41
Housing Characteristics: 2000 (US Census Bureau 10/01)……………………………… 19
Informal Op. New York State Att’y Gen 2001-2 (April 5, 2001);………………… 8, 13
Inside B&C Lending at 2 (February 3, 2006)………………………………………………… 13
Pennsylvania Department of Banking, Losing the American Dream: A Report on
Residential Mortgage Foreclosures and Abusive Lending Practices in
Pennsylvania (2005). ………………………………………………………………………………. 23
Press Release, Office of Attorney General, N.J. Div. of Criminal Justice Targets
financial crime (Nov. 14, 2004),
http://nj.gov/lps/newsreleases04/pr20041117b.html……………………………………. 25
Press Release, Sen. Mikulski Formed Task Force and Secured Federal Assistance
to Address Flipping Problem (Oct. 9, 2003) ………………………………………………. 25
U.S. Census 2000………………………………………………………………………………………. 21
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INTERESTS OF AMICI CURIAE
Amici are non-profit legal services and public interest organizations who
have special expertise in defending foreclosures and in documenting how the
mortgage market works. Amici South Brooklyn Legal Services, Jacksonville Area
Legal Aid, Inc., Empire Justice Center, Legal Services for the Elderly, Queens
Legal Aid, Legal Aid Bureau of Buffalo, Legal Services of New York City–Staten
Island, Fair Housing Justice Center of HELP USA, and AARP’s Foundation
Litigation and Legal Counsel for the Elderly provide free legal representation to
low-income individuals and families who are victims of abusive mortgage lending
and servicing practices, and who are at risk of foreclosure. Amici Center for
Responsible Lending, National Consumer Law Center, National Association of
Consumer Advocates, and Neighborhood Economic Development Advocacy
Project are non-profit research and policy organizations dedicated to exposing and
eliminating abusive practices in the mortgage market. AARP advocates on behalf
of consumers in the mortgage marketplace and through its Public Policy Institute
conducts research on a wide variety of issues affecting older persons, including
subprime mortgage lending and mortgage broker practices.
Collectively, amici represent or counsel thousands of low to moderate
income homeowners each year. Amici prevent foreclosures through defense of
foreclosure actions in court; negotiating with foreclosing lenders to address
2
servicing abuses that inflate mortgage balances and to modify mortgages to give
homeowners a fresh start; filing administrative claims with city, state, and federal
agencies; conducting community outreach and education to address predatory
lending and abusive servicing; and working on various policy issues to protect
consumers and prevent abusive mortgage lending and servicing practices.
The Mortgage Electronic Registration Systems, Inc. (“MERS”) has a
substantial and detrimental impact on amici as it curtails their ability to conduct
research and advocacy and impairs the rights of their homeowner clients. In
particular, MERS’ failure to conform to New York law significantly undermines
the public interest in preserving the free public database created by land and court
records and imposes substantial harms on amici’s homeowner clients. Therefore
amici urge this court to reverse the decision below and to find in favor of
Respondents-Appellants.
PRELIMINARY STATEMENT
Through their extensive experience representing individual homeowners and
closely studying both the national and local mortgage markets, amici have learned
first-hand the detrimental effect of MERS’ electronic registration system on
homeowners, and its destructive impact on the public land records that serve the
public interest in a variety of critical ways. Although this case turns on a question
of New York law, amici and the homeowners they represent nationwide have
3
experienced the same obstacles, confusion, and frustration that are created by the
MERS system in New York State.
The MERS system harms homeowners and undermines the public interest
by concealing information that is essential both to the maintenance of accurate
public land and court records, and to individual homeowners, particularly those
who seek redress for predatory mortgages or face foreclosure. Three issues
highlight the importance of these concerns to homeowners and to the public
interest. First, because MERS obfuscates the true owner of the note, MERS
creates significant and detrimental confusion among borrowers and homeowners,
their advocates, and the courts. Second, MERS frustrates established public
policy, which dictates that title information must be publicly available, thus
causing harm to state and local governments, advocacy groups, and academic
researchers who routinely rely on public database information to inform legislative
decision-making, to support law enforcement, and to advance policy solutions to a
wide variety of housing and mortgage issues. Third, MERS’ routine practice of
improperly commencing foreclosure actions solely in its name, even though it is
not the true owner of the note, flaunts courts rules and raises significant standing
concerns. Accordingly, amici urge this Court to reverse the decision of the court
below and find in favor of Respondents-Appellants Edward P. Romaine and the
County of Suffolk, and against Petitioners-Respondents MERS.
4
ARGUMENT
I. The MERS System Was Designed Without Regard to Consumers’
Rights
MERS is the brainchild of the mortgage industry, designed to facilitate the
transfer of mortgages on the secondary mortgage market and save lenders the cost
of filing assignments. See, e.g., Br. for Petitioners-Respondents MERS
(hereinafter “MERS Br.”) at 6-7 (listing the founding members of MERS as, inter
alia, Mortgage Bankers Association of America, the Federal National Mortgage
Association…and others within the real estate finance industry); Record on Appeal
(hereinafter “R.__”) at 604-6. (MERS is in an “administrative capacity to serve the
sole purpose of appearing in the county land records”). MERS is not a mortgage
lender; nor does it ever own or have any beneficial interest in the note or mortgage.
See, e.g., Merscorp, Inc. v. Romaine, No. 9688/01, slip op. at 2 n.3 (N.Y. Sup. Ct.,
Suffolk Co. May 12, 2004); Informal Op. New York State Att’y Gen 2001-2 (April
5, 2001), 2001 N.Y. AG LEXIS 2; R. at 727-28. Nevertheless, MERS substitutes
its name on the public records for the name of the actual owners of mortgage loans.
In so doing, MERS is rapidly undermining the accuracy of the public land and
court records databases, establishing in their place a proprietary national electronic
registry system that “tracks” beneficial ownership and servicing rights and whose
information is inaccessible to the public. Yet the design of MERS’ registration
system and foreclosure procedures considered neither the public’s interest, nor the
5
rights and interests of consumers. See, e.g., Phyllis K. Slesinger and Daniel
McLaughlin, Mortgage Electronic Registration System, 31 IDAHO L. REV. 805,
811, 814-15 (1995) (MERS initially sought input from industry representatives; no
input sought from consumers).
Not surprisingly, MERS operates in derogation of the rights and interests of
consumers and the public interest. MERS claims that the MERS system is
beneficial to consumers because the “cost savings are substantial,” the flow of
funds are sped up, and the consumer can determine which company services her
mortgage by calling a toll-free number. MERS Br. at 9-11, 37-38. However, these
arguments are unsupported and disregard the significant obstacles and confusion
that MERS creates. As described below, the detrimental effects of MERS—the
hiding of the true note and mortgage holder and the insulation of the holder from
potential liability in situations involving predatory loans— substantially outweigh
any purported benefit to consumers of the MERS system. Indeed, MERS is
fundamentally unfair to homeowners who are trapped in the system because it
transmutes public mortgage loan ownership information, required to be recorded in
the public databases, into secret and proprietary information, inaccessible to both
the borrower and the public.
6
II. MERS’ Claims That the MERS System Is Beneficial to Consumers Are
Unsupported.
MERS has not ushered in a beneficent new regime in the mortgage lending
industry, nor does it impart cost savings or greater access to information to
homeowners. See MERS Br. at 11, 37, 39. In fact, the opposite is true. The only
beneficiaries of the MERS system are MERS and its member lenders and servicers.
The losers are millions of homeowners who are unwittingly drawn into MERS’
virtual black hole of information, and the public at large. Far from filling an
information void, the MERS system creates an information drain, removing the
true note holder’s identity from the public records and substituting MERS in its
stead. Significantly, while systematically eliminating any public record of
mortgage loan ownership and assignments, MERS has not even bothered to
maintain a private database of intermediate assignments—tracking only the
identity of the loan servicer. R. at 635-637. As a result, the judges and court staff
who are forced to deal with the confusion spawned by the increasing number of
land records and foreclosures filed in the name of MERS can also be counted
among the casualties of the MERS system.
Any cost savings resulting from the MERS system benefit its member
lenders, who are freed from the costs of filing mortgage assignments, not
homeowners or the public. These cost savings are touted as MERS’ core purpose:
“This [MERS process] eliminates the need to record an assignment to your
7
MERS® Ready buyer, saving on average $22 per loan.” (“What is MERS?”
promotional materials) and “Save at least $22 on each loan by eliminating
assignments.” (MERS benefit materials). See also
http://www.mersinc.com/why_mers (last visited September 20, 2006).
Moreover, MERS’ assertion that homeowners are the beneficiaries of the
MERS system simply cannot be reconciled with the practices espoused by MERS
or those of its members. MERS Br. at 11, 38. While MERS claims that its
member lenders pass on savings to their borrowers, MERS Br. at 11, there is no
indication this is actually happening; nor is it any part of the MERS sales pitch to
lenders. To the contrary, thanks to MERS, an additional fee frequently appears on
the HUD-1 Settlement Statement: a MERS fee of $3.95. See R. at 48. MERS
encourages its members to charge this additional fee:
Q. Can I pass the MERS registration fee on to the borrower?
A. YES. On conventional loans you may be able to pass this fee
on to the borrower, but you should check with your legal
advisors to ensure that you are in compliance with federal and
state laws. On government loans, please check with your local
field office for availability and approval.
(MERS promotional FAQ).
There is no record evidence that any costs savings are passed on to
borrowers. The opposite is true. The $3.95 MERS assignment fee is built into the
standard fees charged by lenders at closing and variously denominated as
8
“origination fee,” “underwriting fee,” “processing fee,” “administration fee,”
“funding fee,” etc. on the HUD-1 settlement sheet. Under the MERS system, it is
MERS and its members who are gaining financially, clerk’s offices which are
deprived of valuable operating funds, and consumers who are losing ground.
MERS erroneously touts its system as providing greater access to
information through the availability of a toll-free number to identify the
homeowner’s loan servicer. See R. at 48; MERS Br. at 37, 39. MERS’ repeated
emphasis, MERS Br. at 9-10, 39, on this issue is a red herring. The identity of the
servicer is well known to the homeowner, who receives the servicer’s monthly bills
and makes mortgage payments to the servicer. In fact, the identity of the servicer
is perhaps the only information homeowners know about their loan once MERS is
involved. MERS does not offer homeowners a toll-free number to learn who
actually owns their note and mortgage; indeed MERS does not track that
information itself. Yet this is the key piece of information that homeowners no
longer possess and are unable to access because MERS has eliminated it from the
public records.
III. Homeowners Have a Right to Know Who Owns Their Loans.
MERS’ existence is justified by a slender reed of an opinion letter of its
counsel, a letter which cavalierly asserts that “there is no reason why, under a
mortgage, the entity holding or owning the note may not keep the fact of its
9
ownership confidential. . . The public has no significant interest in learning the true
identity of the holder of the note.” R. at 731. This self-serving opinion is utterly
incorrect, and dangerously ignores consumer rights and the strong public interest in
maintaining an accurate and complete public recordation system.
The 2001 Opinion of the Attorney General of the State of New York is a
clear refutation of MERS’ foundational principle that MERS’ elimination of public
records does not violate public policy:
Designating MERS as the mortgagee in the mortgagor-mortgagee
indices would not satisfy the intent of Real Property Law’s recording
provisions to inform the public about the existence of encumbrances,
and to establish a public record containing identifying information as
to those encumbrances. If MERS ever went out of business, for
example, it would be virtually impossible for someone relying on the
public record to ascertain the identity of the actual mortgagee if only
MERS had been designated as the mortgagee of record.
2001 N.Y. Op. Attorney General 1010; 2001 N.Y. AG LEXIS 2.
Moreover, the importance of maintaining public records that accurately
identify the mortgage holder has assumed greater importance in recent years, as
mortgages are increasingly transferred into the secondary market and are only
rarely retained by the originating mortgage lender. A booming secondary
mortgage market has emerged with the issuance of mortgage-backed securities
which are sold to Wall Street firms in pools and securitized. These securitized
mortgages have skyrocketed from $11 billion in 1994 to more than $500 billion in
2005. Inside B&C Lending at 2 (February 3, 2006).
10
What this securitization boom means for consumers is that the entity that
owns the note and mortgage is likely to change several times over the life of the
loan. Before MERS, the easiest way to determine the current owner was to check
the public records for the last assignment of the mortgage.1 In the MERS system,
however, assignments are never filed except when the mortgage is initially
assigned to MERS or assigned to a non-MERS member mortgagee. As a result,
when MERS is the nominee for a mortgage, the homeowner cannot determine who
owns her note by checking the public records, nor can she obtain this information
from MERS. The MERS system thus actively subverts the public policy of
maintaining a transparent, public title history of real property.
It is essential for consumers to be able to identify the owner of their loan,
since the owner alone retains the power to make certain decisions about the loan,
particularly when borrowers fall behind. Knowing the identity of the servicer is
rarely sufficient for consumers who are having problems with their loans, as
servicers often lack the necessary authority to enter into loan modifications with
borrowers or restructure overdue payments. Borrowers may also benefit from
direct contact with owners when servicers’ interests in collecting late fees and
collection fees run counter to borrowers’ interests in bringing their loans current.
1 The recording of an assignment is beneficial to the borrower, and the public, by openly stating
the current owner of the mortgage.
11
Thus, the homeowner’s ability to locate the owner of the note and mortgage is
important both to informal resolution of payment delinquencies and when more
serious problems arise.
The homeowner’s inability to determine quickly who owns the note and
mortgage also prevents the exercise of important rights under federal and state law
and makes it difficult to adequately defend foreclosure proceedings. Federal law
creates a right of rescission whenever a homeowner refinances a home, or
otherwise enters into a nonpurchase money mortgage. If the lender fails to comply
fully with the dictates of the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq., the
borrower is entitled to exercise the right of rescission for an extended three year
period. 15 U.S.C. § 1635(f). When exercised, this right is extremely powerful: it
cancels the lender’s security interest or mortgage, credits all payments entirely to
principal, relieves the homeowner of the obligation to repay any closing costs or
fees financed, and provides the possibility of recovering statutory and
compensatory damages. 12 C.F.R. § 226.23. Of critical importance in the context
of this proceeding, the right to rescind may be asserted against assignees of the
obligation, i.e. the note holder itself; in fact, rescission is one of the few tools
available to homeowners to stop a foreclosure. 15 U.S.C. § 1641(c).
Unlike note holders, servicers are not liable for rescission, 15 U.S.C.
§1641(f)(1), and some courts have refused to honor a homeowner’s rescission even
12
where the servicer’s identity is the only information available to the homeowner.
See Miguel v. Country Funding Corp., 309 F.3d 1161 (9th Cir. 2002). While the
Federal Reserve Board subsequently amended its Official Staff Commentary to
clarify that service upon an agent of the holder, as defined by state law, is
sufficient, where the creditor does not designate a person to receive the notice of
rescission, 69 Fed. Reg. 16,769 (Mar. 31, 2004), many ambiguities remain and
courts have continued to question the adequacy of notice unless given to the holder
of the loan. See, e.g., Roberts v. WMC Mortg. Corp., 173 Fed. Appx. 575 (9th Cir.
2006). Prudent practice makes it essential for a rescinding homeowner to identify
and notify the holder.
Identifying the holder of the note is dependent upon accurate land records, as
servicers incur no liability for withholding this information. While the Truth-in-
Lending Act requires servicers to tell borrowers, upon request, who the holder is,
15 U.S.C. §1641(f)(2), there is no requirement that the response be timely and
there is no remedy for its violation. The experience of amici is that servicers rarely,
if ever, provide this information.
Service upon MERS is likewise ineffective, as MERS is neither the holder
nor the servicer. See Mortg. Elec. Registration Sys. v. Estrella, 390 F.3d 522 (7th
Cir. 2004) (MERS is a nominee on the mortgage only); Mortg. Elec. Registration
Sys. v. Neb. Dep’t of Banking & Fin., 704 N.W.2d 784 (Neb. 2005) (MERS argues
13
that it is only nominee of mortgages). As “nominee,” MERS is not an agent of the
holder for purposes of receipt of rescission notices. Cf., e.g., Black’s Law
Dictionary 727 (6th ed. abr.) (defining nominee as “one designated to act for
another as his representative in a rather limited sense”); Mortg. Elec. Registration
Sys. v. Neb. Dep’t of Banking & Fin., 704 N.W.2d 784 (Neb. 2005) (MERS argues
that it is only nominee of mortgages and is contractually prohibited from
exercising any rights to the mortgages). Moreover, the history of litigation
involving MERS confirms that it would be foolish to rely on notice to MERS as
notice to the holder of the mortgage. See, e.g., Freedom Mortg. Corp. v. Burnham
Mortg., Inc., 2006 WL 695467 (N.D. Ill., Mar. 13, 2006) (lender arguing that it is
not bound by foreclosure bids of MERS as its nominee); Countrywide Home Loans
v. Hannaford, 2004 WL 1836744 (Ohio Ct. App. Aug. 18, 2004).
This leaves a homeowner in a trick box. In order to exercise an important
right, the homeowner must provide notice to the holder of the note or its agent.
MERS does not serve as the holder, nor does it serve as the holder’s agent for this
purpose; it does not believe it is required to comply with the Truth-in-Lending Act
at all, according to a memo prepared by MERS’ counsel (R. at 745-6); and it
refuses or is incapable of providing the homeowner with the name or address of the
holder of the note. Surely this is not an unexpected consequence of the MERS
system. As architect of a system that, by design, withholds information from
14
homeowners that is key to their exercising a critical federal right, MERS has and
continues to infringe on homeowners’ rights of rescission.
MERS’ obfuscation of the true holder of the note further infringes on
homeowners’ rights to rescind abusive, high-cost home loans pursuant to New
York State’s Banking Law 6-l, which was enacted in October 2002 to counter
predatory lending abuses in the mortgage market. Many other state and common
law rights of borrowers are also imperiled by the MERS system. In foreclosure
proceedings, assignee note holders often claim that they are a holder in due course
when a consumer raises certain defenses such as common law fraud or deceptive
acts and practices (codified in New York State as General Business Law § 349).
Before MERS, consumers could easily access the complete chain of title through
the public records by identifying each assignment of the loan. Under the MERS
system, all of this information is lost to the homeowner, putting homeowners at a
significant and unwarranted disadvantage in defending foreclosures.
IV. The MERS System Causes Significant Confusion Among Borrowers,
and Has a Particularly Detrimental Impact on the Elderly and Other
Vulnerable Borrowers Frequently Victimized by Predatory Lenders.
In the last decade scholars and government regulatory agencies examining
mortgage lending practices, including predatory lending, have spotlighted the
importance of creating transparency in the mortgage marketplace through
improved disclosures to borrowers and enhanced consumer literacy. See Curbing
15
Predatory Home Mortgage Lending, U.S. Dept. of Housing and Urban
Development and U.S. Dept. of the Treasury, 47 (2000), available at
http://www.huduser.org/publications/hsgfin/curbing.html (“HUD-Treasury
Report”). The MERS system flies in the face of this goal—obfuscating the
mortgage process and violating consumers’ right to know. The confusion
engendered by MERS has a particularly detrimental impact on the most vulnerable
homeowners.
According to the 2000 Census, 12.9 percent of New York State’s population
is comprised of people who are 65 years and older. Of these elderly state residents,
over 66% are homeowners, while 42.8% of seniors residing in New York City own
their homes.2 These numbers suggest that a large number of the consumers
affected by the MERS system are older New Yorkers.
Declining vision, hearing, mobility and cognitive skills make it more
difficult for older borrowers to extract the critical information they need from
federally mandated disclosure documents. See Alan M. White and Cathy Lesser
Mansfield, Literacy and Contract, 13 STAN. L & POL’Y REV 233. Like many
consumers, older adults often can not understand mortgage documents, as they are
written in extremely complex and technical language. MERS amplifies this
2 See Housing Characteristics: 2000 (US Census Bureau 10/01).
16
problem by intentionally layering new legal terms, and inserting a new and foreign
legal entity, into already complicated consumer contracts and transactions.
As a result, many of amici’s clients are unaware of MERS’ involvement and
are thoroughly confused when MERS begins to act on behalf of their servicer or
mortgagee. The confusion and obstacles that are created by this MERS system are
significant, particularly for homeowners whose predatory loans put them at an
increased risk of default and foreclosure. For example, one of SBLS’ elderly
clients, in default on her mortgage, was receiving a tremendous number of
solicitations from “foreclosure rescue” companies and mortgage brokers and
lenders which promised to save her from foreclosure. When she received the
foreclosure summons and complaint naming MERS as the plaintiff, she
disregarded it because she thought that MERS was simply another company trying
to scare her. As a result of her confusion over MERS, the client nearly lost her
home.
Government agencies and consumer organizations consistently report that
older citizens are disproportionately victimized by predatory mortgage brokers and
lenders. See Consumer Protection: Federal and State Agencies in Combating
Predatory Lending, United States General Accounting Office, Report to the
Chairman and Ranking Minority Member, Special Committee on Aging, U.S.
Senate (January 2004), pp. 99-102. Older homeowners are more likely to have
17
substantial equity in their homes, making them attractive targets. Their fixed
incomes (over 20% of elderly city residents live below the poverty level) and agerelated
mental and physical impairments, affecting nearly half of city residents,
make them more vulnerable to mortgage abuse. 3 In addition, many older New
Yorkers living in inner-city homes lack access to traditional lending institutions,
placing them at greater risk of becoming victims of high cost, predatory, subprime
lenders. See Associates Home Equity v. Troup, 343 N.J. Super. 254 (App. Div.
2001).4
Subprime lending has proven to offer opportunities for unscrupulous – or
predatory-lenders to take advantage of borrowers by charging excessive
interest rates and fees and using mortgage proceeds to pay inflated costs for
home repairs or insurance products. The most common victims of these
predatory lending practices have been found to include the elderly,
minorities, and low income households.
Kimberly Burnett, Chris Herbert, et al., Subprime Originations and Foreclosures
in New York State: A Case Study of Nassau, Suffolk, and Westchester Counties
(2002) at ii.
By creating an additional, confusing overlay to the predatory loan
transaction, MERS’ involvement serves to compound the very significant problems
3 See U.S. Census 2000; see also American Community Survey, U.S. Census Bureau (2005).
4 After finding that the lender had targeted a 74 year old African American home owner in
Newark, the Court in Troup held that the lender “participated in the targeting of inner-city
borrowers who lack access to traditional lending institutions, charged them a discriminatory
interest rate, and imposed unreasonable terms.” Associates Home Equity, 343 N.J. Super.254
(App. Div. 2001).
18
that already exist for homeowners with predatory loans. MERS shields these
unscrupulous lenders, hiding the identities of assignees and muddying records
which are vital to victims seeking immediate redress.
V. The Public Has a Significant and Enduring Interest in Preserving and
Protecting the Free Public Databases Created by the Land and Court
Records of This Nation.
MERS . . . represents the future of foreclosure: a brave new world of
anonymity and unaccountability . . . The ostensible purpose is to save
companies the county filing fees they often must pay when they buy
mortgages or transfer servicing. An added benefit: if a foreclosure
filing becomes necessary that filing, too, can be in MERS’ name.
That makes it harder for journalists, community groups and
researchers to determine whose mortgages are actually ending in
foreclosure. If MERS has its way, it will become increasingly
difficult to tell whose mortgages are failing.
Richard Lord, AMERICAN NIGHTMARE: PREDATORY LENDING AND THE
FORECLOSURE OF THE AMERICAN DREAM 157 (Common Courage Press 2005).
A. Public land and court data records facilitate research
investigating the root causes of a variety of mortgage and other
land related problems.
The public land and court records have served as a vitally important, free
and accessible source of data that have been relied upon by broad constituencies,
including government, academics, non-profit advocacy organizations, businesses
and private individuals throughout the past century. These records have assisted
the legislative branches of government in formulating policy and providing a
legislative response to crises, including redressing abusive mortgage lending
19
practices. 5 See Zach Schiller, Foreclosure Growth in Ohio (2006), available at
available at: http://www.policymattersohio.org/pdf/foreclosure_growth_
ohio_2006 (supporting recently enacted Amended Substitute Senate Bill No. 185,
126th Cong., which expanded the Ohio Consumer Sales Practices Act to cover
mortgage lending; 6 TRF, Mortgage Foreclosure Filings in Pennsylvania (2005),
available at http://www.trfund.com/resource/downloads/policypubs/Mortgage-
Foreclosure-Filings.pdf (Study resulting from Pennsylvania state legislative
request to gather information and analyze foreclosures); 7 Burnett et.al, Subprime
5 The studies listed represent only a small sampling of the numerous studies and reports reliant
on public land and court records data that have influenced legislative decision-making. See e.g.,
The Reinvestment Fund (“TRF”), Mortgage Foreclosure Filings in Delaware (2006),
http://www.trfund.com/resource/downloads/policypubs/Delaware_Foreclosure.pdf (Study
commissioned by the Office of the State Bank Commissioner to analyze foreclosure activity in
Delaware); TRF, A Study of Mortgage Foreclosures in Monroe County and The
Commonwealth’s Response (2004), http://www.banking.state.pa.us/banking/cwp/
view.asp?a=1354&q=547305 (Study commissioned by the Pennsylvania Department of Banking
and the Housing Finance Agency to investigate foreclosure trends in Monroe County); Lynne
Dearborn, Mortgage Foreclosures and Predatory Lending in St. Clair County, Illinois 1996-
2000 (2003) (U.S. Department of Housing and Urban Development (“HUD”) funded study of
loan terms and foreclosure trends commissioned by St. Clair County); Lorain County
Reinvestment Fund, The Expanding Role of Subprime Lending in Ohio’s Burgeoning
Foreclosure Problem: A Three County Study of a Statewide Problem, (2002), http://cohhio.org/
projects/ocrp/SubprimeLendingReport.pdf (Study of foreclosure trends in three Ohio counties).
6 See also Zach Schiller and Jeremy Iskin, Foreclosure Growth in Ohio: A Brief Update (2005),
http://www.policymattersohio.org/pdf/Foreclosure_Growth_Ohio_2005.pdf; Zach Schiller,
Whitney Meredith, & Pam Rosado, Home Insecurity 2004: Foreclosure Growth in Ohio,
available at http://www.policymattersohio.org/pdf/Home_Insecurity_2004.pdf.
7See also Pennsylvania Department of Banking, Losing the American Dream: A Report on
Residential Mortgage Foreclosures and Abusive Lending Practices in Pennsylvania (2005),
available at http://www.banking.state.pa.us/banking/lib/banking/about_dob/special%20
initiatives/mortgage%20forecloser/statewide%20foreclosure%20report.pdf. This report was
presented to the Pennsylvania House of Representatives by the Secretary of the Pennsylvania
20
Originations and Foreclosures in New York State (Study supported passage of
New York predatory lending law, N.Y. Banking Law § 6-1).8
The land and court records data have been utilized by the executive branches
of government to inform their regulatory activities related to land ownership, see
e.g. Ramon Garcia, Residential Foreclosures in the City of Buffalo, 1990-2000
(2003)9 (New York Federal Reserve Bank investigation),10 and are a source of
information for law enforcement agencies seeking to prosecute offenders for
mortgage fraud, property flipping and other criminal mortgage-related offenses.11
See e.g. People v. Larman, No. 06253-2005 (Kings County Supreme Ct. Sept. 20,
2006) (Indictment for fraudulent mortgage transactions); People v. Sandella, No.
02899-2006 (Kings County Supreme. Ct. Sept. 27, 2006) (indictments for multi-
Department of Banking and includes information from several sources, including TRF, Mortgage
Foreclosures in Pennsylvania.
8 Executive Summary available at: http://www.abtassociates.com/reports/ESSuburban_
NY_Foreclosures_study_final.pdf (Public records and HMDA data demonstrated that
subprime foreclosures impacted both urban and suburban communities)
9 This report is available at: http://www.newyorkfed.org/aboutthefed/
buffalo/foreclosure_study.pdf (10 year study of foreclosure trends in Buffalo)
10 The following are a small sampling of executive branch studies relying on data in the public
domain. See e.g., Bunce, Harold, Gruenstein, Debbie et al., Subprime Lending: The Smoking Gun
of Predatory Lending? (HUD 2001), http://www.huduser.org/Publications/ pdf/brd/12Bunce.pdf;
Dearborn, Mortgage Foreclosures in St. Clair.
11 For a sampling of New York criminal indictments relying on land records data, see People v.
Albertina, 09141-2005 (Kings County Supreme Ct. Sept. 28, 2006) (Attorney General indictment
for a multi-million dollar scheme to sell houses with fake deeds); People v. Constant, No.
01843A-2006 (Suffolk Supreme Ct. Oct. 12, 2006)(Suffolk County grand jury indictment of six
for roles in real estate scam); Altegra Credit Co. v. Tin Chu, et al., No. 04326-2004 (Kings
County Supreme Ct. March 25, 2004)
21
million dollar residential property flipping scheme).12 These data also inform local
governments about the cost and impact of abusive lending practices on both their
constituents and the public purse. See T. Nagazumi & D. Rose, Preying on
Neighborhoods: Subprime mortgage lending and Chicagoland foreclosures, 1993-
1998 (Sept. 21, 1999) 13 (NTIC study investigated the effects of subprime mortgage
lending on foreclosures in Chicago); Kathleen C. Engel, Do Cities Have Standing?
Redressing the Externalities of Predatory Lending, 38 Conn. L. Rev. 355 (2006).
12 Criminal property flipping is rampant throughout the country. For a sampling of this problem
see e.g. Press Release, Office of Attorney General, N.J. Div. of Criminal Justice Targets
financial crime (Nov. 14, 2004), http://nj.gov/lps/newsreleases04/pr20041117b.html (Indictment
of North Jersey businessman for mortgage fraud scheme that netted more than $677,000 in
fraudulent loans); Lessons learned from the laboratory (Community Law Center (CLC) 2002)(A
report by the CLC – Baltimore City flipping and Predatory Lending Task Force (47 individuals
were indicted, pled guilty, or were convicted in federal court for property flipping and mortgage
fraud)), http://www.communitylaw.org/Executive%20 Summary.htm; see also Press Release,
Sen. Mikulski Formed Task Force and Secured Federal Assistance to Address Flipping Problem
(Oct. 9, 2003), http://mikulski.senate.gov/record.cfm?id=213248 (70 people convicted of
property flipping in Baltimore); Press Release, FBI, U.S. Attorney’s Office, Ohio, (May 9,
2006); Press Release, U.S. Attorney’s Office, S.D. Mississippi (Feb.16, 2006); Press Release,
Office of the Attorney General, Florida (June 25, 2004)
13 This report is available at: http://www.ntic-us.org/preying/preying.pdf ; For a sampling of
other relevant studies, see D. Rose, Chicago Foreclosure Update 2006 (July), http:// www.nticus.
org/documents/ChicagoForeclosureUpdate2006.pdf (NTIC study analyzes foreclosure trends
in Chicago); D. Rose, Chicago Foreclosure Update 2005, http://www.nticus.
org/currentevents/press/pdf/chicagoforeclosure_update.pdf; William C. Apgar & Mark Duda.
Collateral Damage: The Municipal Impact of Today’s Mortgage Foreclosure Boom 1996-2000
(May 11, 2005), http://
www.nw.org/Network/neighborworksprogs/foreclosuresolutions/documents/Apgar-
DudaStudyFinal.pdf (Documents the financial costs of foreclosure to municipalities); Apgar, The
Municipal Cost of Foreclosures: A Chicago Case Study (Feb. 27, 2005), http://
www.hpfonline.org/PDF/Apgar-Duda_Study_Full_Version.pdf (Also documents indirect costs
that result from the domino effect that foreclosures have on communities).
22
Non-profit groups and academics rely upon data in the public domain to
illustrate trends, spotlight the impact of various mortgage practices on minority and
low income communities and uncover abusive practices that injure their
constituencies. They use this information to advocate for policy initiatives that
benefit the public interest. See e.g. Nagazumi, Chicago Update 2006; Apgar and
Duda, Collateral Damage; Apgar, Municipal Cost of Foreclosures; Lindley
Higgins, Effective Community-Based Strategies for Preventing Foreclosures,1993-
2004 (2005), 14 (A 2005 analysis of the factors that led to foreclosure generated
proposals for foreclosure prevention programs)15; Neighborhood Housing Services
(NHS) of Chicago, Preserving Homeownership: Community-Development
Implications of the New Mortgage Market (2004) (Study of foreclosures from
1998-2003 proposes foreclosure prevention initiatives for community based
organizations working cooperatively with private industry and federal, state, and
local governments).16
14 This report is available at: http://www.nw.org/network/pubs/studies/documents
/foreclosureReport092905.pdf.
15 See also Nagazumi, Preying on Neighborhoods; Richard Stock, Center for Business and
Economic Research (CBER), Predation in the Sub-Prime Lending Market: Montgomery County
Vol. I., 1994-2001 (2001), http://www.mvfairhousing.com/cber/pdf/Executive%20summary.PDF
(Study examines predatory lending in Montgomery County, Ohio).
16 This report is available at: http://www.nw.org/network/pubs/studies/documents/
preservingHomeownershipRpt2004_000.pdf. See also Nagazumi, Preying on Neighborhoods at
36-37 (urging legislature to pass Illinois legislation to end predatory subprime lending and to
disclose predatory pricing and practices to Illinois regulators and the public); Higgins,
Community-Based Strategies at i. (Objective is to increase capacity of local community based
23
Businesses utilize the public land and court records data as the providers of
research services that convert public information into customized databases. See
e.g. NYForeclosures.com; Atlanta Foreclosure Report;17 Boston Foreclosure
Report and Foreclosure Report of Chicago 18). These data collection businesses
serve a wide variety of business customers, including mortgage brokers seeking
leads, bankruptcy attorneys, and real estate agents, as well as government and nonprofit
research entities. See id.19
B. The public databases have played an important role in facilitating
understanding and government response to the recent
“foreclosure boom.”
Land and court records data have become a particularly important public
resource over the past decade, as the nation has experienced what some have
characterized as a “foreclosure boom.” See generally Apgar and Duda, Collateral
organizations to revitalize communities); Apgar & Duda, Collateral Damage at 16 (Report
identifies foreclosure avoidance strategies for municipalities).
17 See http://www.equitydepot.net.
18 See http://www.chicagoforeclosurereport.com.
19 Non-profit and government researchers that have relied on these data collection businesses to
do the primary research legwork that provides them with land and court records data to support
their analyses include, the Federal Reserve Bank of New York’s Buffalo Branch, see Ramon
Garcia, Residential Foreclosures in the City of Buffalo, 1990-2000 (2003); see Bunce, Subprime
Lending; Kimberly Burnett, Bulbul Kaul, & Chris Herbert, Analysis of Property Turnover
Patterns in Atlanta, Baltimore, Cleveland and Philadelphia (2004),
http://www.abtassociates.com/reports/analysis_property_turnover_patterns.pdf; Debbie
Gruenstein & Christopher Herbert, Analyzing Trends in Subprime Originations and
Foreclosures: A Case Study of the Boston Metro Area, 1995-1999 (2000),
http://www.abtassociates.com/reports/20006470781991.pdf; Nagazumi, Preying on
Neighborhoods; Rose, Chicago Foreclosure Update 2006.
24
Damage; see also Daniel Immergluck & Geoff Smith, The External Costs of
Foreclosure: The Impact of Single-Family Mortgage Foreclosures on Property
Values, 17 Housing Pol’y Debate, Issue 1 (2006).20 As subprime mortgage lending
escalated from $35 billion in 1994 to $140 billion in 200021 to more than $600
billion in 2005, foreclosure rates jumped by an alarming 335.6%. See Robert
Avery, Kenneth Brevoort, Glenn Canner, Higher-Priced Home Lending and the
2005 HMDA Data at A125 (Sept. 8, 2006).22 These skyrocketing subprime
foreclosures disproportionately impacted low-income and minority communities.
Id. at 63.
Struggling to understand the origins of this foreclosure crisis, government
and researchers have turned to the public data. See supra Schiller; TRF, Delaware;
TRF, Pennsylvania; Dearborn, Mortgage Foreclosures in St. Clair; Paul Bellamy,
The Expanding Role of Subprime Lending in Ohio’s Burgeoning Foreclosure
20 This report is available at: http://www.fanniemaefoundation.org/programs/hpd/pdf/
hpd_1701_immergluck.pdf#search=%22%22Immergluck%22%20and%20%22Geoff%22%22
21 See Neal Walters & Sharon Hermanson, Subprime Mortgage Lending and Older Borrowers
(AARP Public Policy Institute), Data Digest Number 74 (2001). Data Digest available at:

http://assets.aarp.org/rgcenter/consume/dd74_finance.pdf

22 This report is available at:
http://www.federalreserve.gov/pubs/bulletin/2006/hmda/bull06hmda.pdf; “HMDA” refers to the
Home Mortgage Disclosure Act, 12 USC § 2801 et. seq.; see also Margot Saunders and Alys
Cohen, Federal Regulation of Consumer Credit: The Cause or the Cure for Predatory Lending?
at 11 (Joint Center for Housing Studies 2004),

http://www.jchs.harvard.edu/publications/finance/babc/babc_04-21.pdf

25
Problem: A Three County Study of a Statewide Problem, 1994-2001 (2002).23 This
effort to learn the root causes of the “foreclosure boom,” to understand whether
particular regions or demographic groups are most affected by rising foreclosures,
to evaluate the impact of these foreclosures on the surrounding community, and to
address and seek to remedy any abuses that enabled this crisis to develop, has
spawned a virtual explosion of research studies. See e.g. TRF, Delaware; Rose,
Chicago (2006); Engel, Do Cities Have Standing?; Rose, Chicago Foreclosure
Update 2006; Rose, Chicago Foreclosure Update 2005 (Updating foreclosure
activity in Chicago); Apgar & Duda, Collateral Damage; Apgar, Municipal Cost of
Foreclosures; TRF, Pennsylvania; TRF, Monroe County; Nagazumi, Preying on
Neighborhoods; NHS of Chicago, Preserving Homeownership; Dearborn,
Mortgage Foreclosures in St. Clair; Paul Bellamy, The Expanding Role; Burnett,
Subprime Originations; Garcia, Buffalo supra note 10; Bunce, Subprime Lending;
Nagazumi, Preying on Neighborhoods.
Standing alone, land and court records data serve as a valuable resource to
confirm the existence of the foreclosure boom, identify any key participants in the
foreclosure process, and identify those geographic areas hardest hit. See supra,
Dearborn, Mortgage Foreclosures in St. Clair; Stock, Predation at 8; Apgar,
23 This report is available at: http://www.cohhio.org/projects/ocrp/ SubprimeLendingReport.pdf
26
Chicago at 5.24 In fact, research derived from courthouse and public land records
motivated the North Carolina legislature to become one of the first states to crack
down on predatory mortgage lending. See Habitat for Humanity Refinances,
Coalition for Responsible Lending (updated July 25, 2000) (This ground breaking
study examined refinances of affordable Habitat for Humanity mortgages into
unaffordable predatory loans); David Rice, Predatory Lending Bill Caught in
Debate, Winston-Salem Journal, April 27, 1999.
Land and court records data are even more valuable and informative when
analyzed in conjunction with several other “puzzle pieces” of publicly available
data. See e.g. Duda & Apgar, Mortgage Foreclosures in Atlanta: Patterns and
Policy Issues, 2000-2005 (2005)25; see Apgar, Collateral Damage; Rose, Chicago
Foreclosure Update 2006; Burnett, Subprime Originations. When combined with
other sources of data, such as census tract and HMDA data, land and court records
data enable researchers to layer information to develop a comprehensive picture
that identifies the leading foreclosure filers, the geographic location and racial
composition of foreclosure hotspots and the loan characteristics associated with
concentrated and quick foreclosures. See e.g. Duda, Atlanta at 15; see also
24Similarly, Mountain State Justice, a West Virginia legal services organization that represents
victims of predatory lending, has conducted an annual review of foreclosure filings in the state
since July 2001. See Report of West Virginia Foreclosures, available from Mount State Justice.
25This report is available at: http://www.nw.org/network/neighborworksprogs/
foreclosuresolutions/documents/foreclosure1205.pdf
27
Burnett, Atlanta, Baltimore, Cleveland and Philadelphia at iii; Nagazumi, Preying
on Neighborhoods at 9; Stock, Predation at 1.
In the past, the availability of detailed public information has enabled
researchers to pinpoint some of the root causes of increased foreclosures and, for
example, informed the New York State legislature in crafting a legislative response
to abusive practices associated with high cost loans. There, a New York study
which combined public records data with HMDA data to identify subprime lenders
and the distribution of subprime foreclosures demonstrated that subprime
foreclosures were prevalent in suburban as well as urban areas.26 See Burnett,
Subprime Originations. Comprehensive research similarly enabled the State of
Illinois and the City of Chicago to redress abusive lending practices and thereby
put the brakes on the foreclosure boom in Chicago. See e.g. Nagazumi, Preying on
Neighborhoods (study demonstrated that subprime foreclosures were both an urban
and suburban problem; that most non-performing loans were subprime, and
identified the top foreclosers of high interest loans); see also, subsequently enacted
Illinois predatory lending law, 815 ILCS § 137. Data from land and court records
26 The New York predatory lending law enacted April 1, 2003 can be found at N.Y.
Banking Law § 6-1, N.Y. Gen. Bus. Law § 771-a, and N.Y. Real Prop. Acts. Law § 1302.
28
has played an important role in analyzing other trends in the mortgage market,
such as identifying unfair or discriminatory lending patterns and practices.27
Unfortunately, in recent years MERS’ increasing emergence as a
placeholder for the true note and mortgage holders in land and court records
databases has corrupted these sources of data and undermined their utility as a
research source.
C. Through its penetration of the public databases MERS has caused
a dramatic deterioration in the quality and quantity of publicly
available information.
In New York city alone, MERS has rapidly replaced true owners in the city
maintained public database—ACRIS—increasing its filings from a nominal fewer
than 100 in 2000, to approximately 90,000 in 2005 and an expected 120,000 filings
in 2006.28 Since the MERS label on the public records shields the identity of the
27 Bunce, Subprime Lending; In 2001, a joint HUD and U.S. Dept. of the Treasury report found
that “[i]n predominantly black neighborhoods, subprime lending accounted for 51 percent of
refinance loans in 1998 – compared with only 9 percent in predominantly white neighborhoods.”
Curbing Predatory Home Mortgage Lending, U.S. Dept. of Housing and Urban Development
and U.S. Dept. of the Treasury, 47 (2000),

http://www.huduser.org/publications/hsgfin/curbing.html.

28 AARP accessed the New York City Department of Finance’s Automated City Register
Information System (ACRIS) website on September 12, 2006 to research the number of MERS,
MERS as nominee and Mortgage Electronic Registration System filings in all boroughs for each
of two months—March and August during the years 2000 through 2006. The results of this
search are included below.
March 2000 7; August 2000 8; March 2001 610; August 2001 126;
March 2002 414; August 2002 663; March 2003 1,277; August 2003 2,785;
March 2004 4,384; August 2004 4,697; March 2005 7,064; August 2005 8,009;
March 2006 10,619; August 2006 10,411.
29
actual participants in the mortgage and foreclosure processes—the true noteholders
and mortgagees, the MERS filings have created a significant hole in this
important public database.
The void in the mortgage database will directly and measurably harm the
constituents of community groups, such as the University Neighborhood Housing
Program (UNHP), who will no longer reap benefits achieved through negotiations
with the largest foreclosing entities in the Bronx, entities which have been
identified through UNHP’s tracking of information about Bronx residential
lending.29 These benefits have included negotiated loss mitigation procedures and
the creation of an Asset Control Area program to renovate and sell 300 FHA
insured foreclosed homes to qualified first time moderate-income homebuyers.
Moreover, MERS’ anticipated penetration of the Bronx multi-family market will
likely cripple UNHP’s Building Indicator Project (BIP), whose database has
enabled the identification and repair of distressed rental housing. The BIP’s
database of more than 7,000 Bronx multifamily apartment buildings, including
ownership, building size, housing code violation, city lien, and critically, mortgage
Estimated annual filings for 2000 and 2006 were based on the two months of filings for those
years.
29 UNHP’s research shows MERS was plaintiff in 305 (11%) of the 2,770 auctions scheduled in
the Bronx over the past 4 ½ years. If the use of MERS continues to grow, it will become
increasingly difficult for groups like UNHP to track who is foreclosing in their neighborhoods
and to undertake remediation efforts with the foreclosers that they have successfully engaged in
the past.
30
holder data, has enabled UNHP to engage lenders who, in turn, have pressured
building owners to make numerous repairs to Bronx rental housing stock.30
New York is not alone in facing the deterioration of its public mortgage
databases. MERS’ penetration of the City of Chicago’s database starkly presents
this problem. In 1999, NTIC undertook its comprehensive study of subprime
lending in the Chicago area over a five year period from 1993-1998. At that time,
no lender or mortgagee’s identity was hidden by the MERS label. See Nagazumi,
Preying on Neighborhoods at 25. (Figure 10 displays the top 34 lenders
responsible for high interest rate foreclosures in 1998). By 2005 MERS itself was
identified as the largest foreclosing entity in Chicagoland, with 1,100 foreclosure
filings. Hidden from public view were the identities of the actual foreclosing
lenders and possibly the perpetrators of the most egregious lending practices. See
Rose, Chicago Update 2006 at 11 (Table 8 shows the most active foreclosing
institutions in 2005). As in Chicago, MERS topped the list of the largest
foreclosure filers during the period 2000-2005 in Atlanta, named as the foreclosing
agent on 41,467 or 16.1 percent of all filings, and was the largest filer in
30 Similarly, St. Ambrose Housing Aid Center, a housing advocacy group in Baltimore,
Maryland representing homeowners victimized by predatory mortgage lending regularly
searched the land records to identify homeowner victims of suspect lenders and to identify any
assignees. St. Ambrose is no longer able to identify many of these assignees and can no longer
assess their complicity in promoting the origination of abusive mortgages.
31
foreclosure tracts with very high foreclosure rates. Duda, Atlanta at 15 -17 &
Figure 3-1.31
The erroneous identification of MERS as lender of record in Jefferson
County and throughout the state during 2000 to 2002 tainted research into
foreclosure trends in Kentucky. See Steve C. Bourassa, Predatory Lending In
Jefferson County: A Report to the Louisville Urban League, 2 (Urban Studies
Institute, University of Louisville) (December 2003).32 As one of the largest
foreclosers of predatory loans, MERS’ presence on the public record masked the
identity of its constituent lenders, the true mortgagees, and obscured the true make
up of the loan portfolio foreclosed upon.
The MERS filing spreads a cloak of invisibility over any member
mortgage/note-holder that purchases a loan following origination. The lender
whose loose underwriting guidelines or careless oversight facilitated the
origination and sale of foreclosure-prone loans is carefully hidden from public
view by the MERS system. See e.g. Duda, Atlanta at 19. In shielding the identity
of these mortgage transaction participants, the MERS label hobbles researchers,
who, because of missing data, are less able to ascertain whether escalating
31Over the past year, from July 1, 2005-June 30, 2006, MERS, has also become one of the four
top foreclosers in West Virginia. See Report of West Virginia Foreclosures, available from
Mountain State Justice.
32 This report is available at: http://www.lul.org/Predatory%20Lending%20Report.pdf
32
foreclosures are caused by a small number of rogue players—who may be dealt
with through enforcement actions—or are part of a systemic problem that requires
a targeted legislative response. Whether this cloaking of its members’ transactions
resulted from a conscious plan or was simply a felicitous byproduct of MERS’
money saving scheme, the result is the same—a dangerous and destructive attack
on the public databases.
D. The MERS Shield Creates an Irretrievable Void in the Property
Records that Harms Many Constituencies.
The void in the property records harms a broad array of entities and, unless
this process is reversed, these data will be irretrievably lost to the public. Law
enforcement agencies may be stymied in their efforts to investigate and prosecute
criminal mortgage fraud and property flipping if deprived of important data
sources on which they have relied in the past. See, e.g., People v. Albertina;
People v. Larman; People v. Sandella; People v. Constant; Altegra Credit Co. v.
Tin Chu, supra. State legislatures will face obstacles to understanding the root
causes of mortgage-related problems and will be unable to identify offending
entities if they can no longer rely on public databases that have served to inform
them about past foreclosure crises in their jurisdictions. Similarly, local
governments which have turned to the land and court records data to understand
the origins of escalating foreclosures in their communities will no longer have the
necessary data upon which to base their analyses. Instead, those lenders and
33
investors who are the primary offenders will be able to hide behind the cloak of
invisibility provided by MERS.
E. Restoration and enhancement of the public database is critical to
enable government to function effectively.
It is essential that the land and court records of this nation remain public and
contain the information required by law—namely, the true identity of the
participants in the mortgage transaction. Governments and researchers must
continue to have the ability to evaluate the full range of public data, including the
land and court records, in investigating the root causes of foreclosures and other
problems and trends in the housing markets. Without this data they will be unable
to discover whether specific entities are primarily responsible for increased
foreclosures, or whether there is an industry-wide problem. They will be unable to
assess which secondary market lenders facilitate abusive lending, or which
servicers are quick to foreclose.
State and local government have a particular interest in preserving the
integrity of the public data sources in the land and court records, as these records
have been a key component of research analyzing the costs imposed by
foreclosures on municipalities and neighboring homeowners and businesses.
Concentrations of foreclosures impose a particularly high societal cost on
surrounding neighborhoods (through reduced property values) and on government
for neighborhood services (for increased policing, social services, fire and trash)
34
and reductions in the tax base. One recent study estimated that foreclosures in high
foreclosure areas imposed costs up to $34,000 on the city and up to $220,000 on
neighboring homeowners. See Apgar, Municipal Cost of Foreclosures; Apgar,
Collateral Damage; Duda, Atlanta at 15 33 These studies have also revealed the
devastating impact of predatory lending on long overdue gains in inner city
minority homeownership, as foreclosures have decimated equity and destroyed
neighborhood vitality virtually overnight. See Kathe Newman & Elvin K. Wyly,
Geographies of Mortgage Market Segmentation: The Case of Essex County, New
Jersey, 19 Housing Stud. 53, 54 (Jan. 2004); Housing Council (2003), Residential
Foreclosures in Rochester, New York 10 (foreclosures erode sales prices of nearby
homes). Government has a right to seek to minimize these societal costs and to
transfer those costs to the mortgage participants responsible for the transactions.
However, since foreclosure avoidance strategies, targeted legislation and
regulation depend on the availability of data to inform decision-making, where
MERS has caused a critical source of heretofore public data to disappear, states,
cities and advocates no longer have sufficient information to respond in a carefully
33 See also Immergluck, External Costs of Foreclosure; Daniel Immergluck & Geoff Smith,
There Goes the Neighborhood: The Effect of Single-Family Mortgage and Foreclosures on
Property Values at 9. (2005). This report is available at:

http://www.woodstockinst.org/publications/task,doc_download/gid,52/Itemid,%2041/

(Homes in low and moderate income neighborhoods in Chicago experience between 1.44 and 1.8
percent decline in value for every home foreclosed within one-eighth of a mile).
35
targeted and not overly inclusive way. See Duda, Atlanta at viii. Thus, “in Fulton
County [GA] and other places with foreclosure problems, the fact that entities
without the legal ability to make servicing decisions [MERS] are registered with
the county has been identified as a major obstacle to municipal foreclosureavoidance
efforts. . . .” Duda, Atlanta at 15. Similarly, the University
Neighborhood Housing Program in the Bronx and many other community groups
are losing an important tool that has enabled them to improve the communities of
their constituents.
F. More, not less public data is needed to enable a carefully targeted
and rapid governmental response to problems in the housing
market.
Foreclosure remains34 a key problem in today’s housing markets.
Particularly in low-income neighborhoods, foreclosures can lead to vacant or
abandoned properties that, in turn, contribute to physical disorder in a community.
See Immergluck, External Costs of Foreclosure, supra. This disorder can create a
haven for criminal activity, discourage the formation of social capital, and lead to
disinvestment in communities.
34 Foreclosure rates continue their meteoric rise, presenting significant problems and hardships
for affected homeowners, their surrounding communities and local governments. In August
2006, 115,292 properties throughout the nation entered foreclosure, a 24 percent increase over
the foreclosure level in July and 53 percent increase over foreclosures in 2005. See Les Christie,
“Foreclosures Spiked in August,” (Sept. 13, 2006), available at:

http://money.cnn.com/2006/09/13/real_estate/foreclosures_spiking/index.htm?postversion=2006

091305.
36
The costs flowing from problems in the housing market impact not only
lenders and borrowers directly involved in the sale or purchase of homes. The
costs can have a significant effect on entire communities. See id. For instance,
concentrated foreclosures can affect the property values of homes in the same or
adjoining neighborhoods. If policymakers are to truly understand the context in
which foreclosures take place and subsequently create legislation to obviate the
problems created by foreclosures (and thereby alleviate related social and
economic difficulties faced by individuals and communities), more data is
necessary and its accessibility to the public is imperative.
Researchers agree and have suggested that the solution to understanding
complex mortgage related problems is to require more not less information and to
further impose more not fewer costs on mortgage participants. See NHS of
Chicago, Preserving Homeownership, supra. Contrary to the attack on the public
databases and public revenues undertaken by MERS, the authors recommend
creating loan performance and foreclosure databases that contain sufficient
information to enable the tracking and assessment of key causes of delinquency
and default.35 These databases would be used to shape more effective legislation,
mitigate public costs and abusive practices and target foreclosure hotspots “without
35 Apgar and Duda recommend tracking all loans, all parties to the loans, loan terms, and would
at a minimum require the disclosure of the note holder and servicer whenever foreclosure is
threatened.
37
stemming the flow of credit to low-income, low-wealth and credit-impaired
borrowers. Id. at 84.
States such as Illinois have already demonstrated a strong interest in
gathering more information about high cost mortgage loans. Illinois’s newly
created data collection program requires all licensed mortgage brokers and loan
originators to enter detailed information into a database for residential mortgage
loans in designated areas in Chicago. See Public Act 094-0280 (HB 4050). This
database project is designed to address predatory practices and high foreclosure
rates. The federal government has also moved to increase data collection for high
cost loans.36
Another key recommendation that has emerged from municipal studies is to
increase public awareness of the significant foreclosure costs imposed on
communities by mortgage participants and reallocate those costs that are
“rightfully the responsibility of borrowers, lenders and others that are direct parties
to the mortgage transaction” to the transactions that created them through increased
filing fees and creation of an industry fund. Duda, Atlanta at 26-27; see also
36 Reacting to a 2001 joint HUD-U.S. Department of the Treasury report that found a
disproportionately high level of high cost, subprime refinance lending in predominantly black
neighborhoods, as compared to predominantly white neighborhoods, the Federal Reserve Board
ramped up its HMDA data reporting requirements in 2004. See HUD-Treasury Report 2000,
supra. Lenders who make high cost, subprime loans must now provide pricing information for
these loans. See Federal Financial Institutions Examination Council, A Guide to HMDA: Getting
it Right! (Dec. 2003).
38
Apgar, Municipal Cost of Foreclosures at 35. Such fees would reduce the
municipal expenditures and loss of neighboring equity that currently function as
effective subsidies to the most abusive transactions.
Land and court records serve as vitally important research tools for
government, community organizations and academic researchers. A private entity,
such as MERS, must not be allowed to deplete the public databases of land and
court records or to undermine the public’s significant and enduring interest in
preserving the integrity of these public databases of land and court records.
VI. MERS’ Subversion of the Public Policy Behind Public Recordings Costs
County and City Clerks Over a Billion Dollars.
MERS’ erosion of the public databases has, as its designers intended, created
a drain on the public treasuries. This transfer of significant revenues from county
and city clerks throughout the country to MERS and its members, is an
unwarranted interference with the clerks’ public recordation function.
In April 2006, MERS announced that 40 million mortgages were registered
with MERS. 40 Millionth Loan Registered on MERS (Inside MERS, May/ June
2006), available at http://www. mersinc.com/newsroom/currentnews.aspx. MERS
admits that a loan is transferred many times during its life. MERS Br. at 51. With
an average recordation cost of $22 for each mortgage assignment, multiplied by 40
million loans and then multiplied again to account for the many transfers that occur
during the life of a loan, the appropriation of public funds effected by the MERS
39
system is staggering. See http://www.mersinc.com/why_mers/index.aspx (last
visited October 4, 2006). Based on a conservative estimate that each of the 40
million loans on the MERS system is assigned three times each during the life of
the loan, the cost to county and city clerks nationwide from the inception of the
MERS system through April 2006, has been an astounding $2.64 billion. This
figure is continuing to grow as new mortgages are registered daily on the MERS
system.
Through its charge of $3.95 per loan, MERS has instead diverted gross
revenues of $158 million to itself. The MERS artifice has enabled the redirection
of far greater revenues away from the public treasuries and back to lenders through
improper avoidance of recordation costs. In so doing, MERS has subverted the
important public function of the county clerks and interfered with the rightful
collection of funds owing to the public treasuries.
VII. MERS Lacks Standing to Bring Foreclosure Actions in Its Name.
MERS’ standing to commence a foreclosure action in New York is a matter
of great dispute, and has led to much confusion in the courts. As a general matter,
standing to foreclose in New York requires ownership of the note. See, e.g.,
LaSalle Bank National Ass’n. v. Holguin, No. 06-9286, slip opinion at 1 (N.Y. Sup.
Ct. Suffolk Cty., Aug. 9, 2006); Kluge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d
40
92 (2d Dept. 1988). Neither MERS’ status as nominee for the beneficial owner nor
its status as mortgagee is sufficient to create standing.
As noted in a Connecticut case denying MERS summary judgment due to a
dispute as to ownership of the note, MERS, as nominee, generally has rather
limited rights and standing:
A nominee is one designated to act for another as his/her
representative in a rather limited sense…in its commonly accepted
meaning, the word ‘nominee’ connotes the delegation of authority to
the nominee in a representative capacity only, and does not connote
the transfer or assignment to the nominee of any property in or
ownership of the rights of the person nominating him/her.
Mortgage Electronic Registration Systems, Inc. v. Rees, 2003 Conn. Super. LEXIS
2437 (Conn. Superior Ct. September 4, 2003). See also MERS v. Shuster, No. 05-
26354/06 (N.Y. Sup. Ct., Suffolk Cty., July 13, 2006) (denying MERS’s motion
for default since MERS is merely nominee); MERS. v. Burek, 798 N.Y.S.2d 346
(N.Y. Sup. Ct. 2004) (distinguishing Fairbanks Capital Corp. v. Nagel, 289
A.D.2d 99, 735 N.Y.S.2d 13 (1st Dep’t 2001), since Fairbanks was a servicer and
identified itself as such).
The splitting of the ownership of the note and the mortgage is even more
problematic. Under well-established principles, the mortgage follows the note. See
U.C.C. §§ 9-203(g), 9-308(e); Restatement (3d), Property (Mortgages) § 5.4(a)
(1997). As an Illinois court noted, “It is axiomatic that any attempt to assign the
41
mortgage without transfer of the debt will not pass the mortgagee’s interest to the
assignee.” In re BNT Terminals, Inc., 125 B.R. 963, 970 (Bankr. N.D. Ill. 1990).
MERS has no status as mortgagee if the note is in fact owned and held by another
entity, as is always the case with MERS. Thus, MERS’ status as mere nominee is
insufficient to give it standing to foreclose, or take any legal action against a
borrower whatsoever. The recording of MERS as mortgagee when it does not and
cannot own the note is inherently confusing and misleading.
There have now been a large number of recent New York decisions denying
foreclosures brought by MERS, on the basis that MERS does not own the note and
mortgage, and therefore does not have either standing to sue or the right to assign
ownership of the note and mortgage to a foreclosing plaintiff. See, e.g., MERS v.
Wells, No. 06-5242, slip op. at 2 (N.Y. Sup. Ct., Suffolk Cty., Sept. 25, 2006) (“It
is axiomatic that the Court, for the security of ensuring a proper chain of title, must
be able to ascertain from the papers before it that the Plaintiff has the clear
authority to foreclose on property and bind all other entities by its actions”);
LaSalle Bank Natl Assn. v. Holguin, supra., slip op. at 2 (“Since MERS was
without ownership of the note and mortgage at the time of its assignment thereof to
the plaintiff, the assignment did not pass ownership of the note and mortgage to the
plaintiff”, and the plaintiff thus failed to establish ownership of the note and
mortgage); LaSalle Bank v. Lamy, 2006 N.Y. Misc. Lexis 2127 (NY. Sup. Ct.,
42
Suffolk Cty., Aug. 17, 2006) (the “assignment of the mortgage to the plaintiff,
upon which the plaintiff originally predicated its claims of ownership to the subject
mortgage, was made by an entity (MERS) which had no ownership interest in
either the note or the mortgage at the time the purported assignment thereof was
made”); MERS. v. Burek, 798 N.Y.S.2d 346, 347 (N.Y. Sup. Ct., Richmond Cty.
2004) (denying summary judgment to MERS since MERS “is merely the selfdescribed
agent of a principal”); MERS v. Shuster, No. 05-26354/06 (N.Y. Sup.
Ct., Suffolk Cty., July 13, 2006) (denying MERS’s motion for default since MERS
owns neither the note or mortgage); MERS v. DeMarco, No. 05-1372, slip op. at 1-
2 (N.Y. Sup. Ct., Suffolk Cty., April 11, 2005) (ex-parte motion for default denied
because: a) the plaintiff was not named as the lender in either the note or
mortgage, and b) there was no proof that the plaintiff was the owner of the note
and mortgage at the time the action was commenced by reason of assignment or
otherwise”); Deutsche Bank National Trust Company as Trustee v. Primrose, No.
05-25796 (N.Y. Sup. Ct., Suffolk Cty., July 13, 2006); Everhome Mortgage
Company v. Hendriks, No. 05-024042 (N.Y. Sup. Ct., Suffolk Cty., June 27, 2006);
MERS v. Ramdoolar, No. 05-019863 (N.Y. Sup. Ct., Suffolk Cty., Mar. 7, 2006);
MERS v.Delzatto, No. 05-020490 (N.Y. Sup. Ct., Suffolk Cty., Dec. 9, 2005);
MERS, Inc. v. Parker, No. 017622/2004, slip op. at 2 (N.Y. Sup. Ct., Suffolk Cty.
Oct. 19, 2004) (denying MERS’ motion for default judgment since MERS does not
43
own the note); MERS, Inc. v. Schoenster, No. 16969-2004, (N.Y. Sup. Ct., Suffolk
Cty., Sept. 15, 2004); see also Andrew Harris, Suffolk Judge Denies Requests by
Mortgage Electronic Registration Systems, N.Y. LAW J. (Aug. 31, 2004)
(discussing four foreclosure cases in Suffolk County that were dismissed in one
day because the judge held that MERS cannot foreclose because it is not the owner
of the note or mortgage).
Other state courts have also questioned MERS’ standing to proceed with
foreclosures. For example, in Florida, there have been a string of decisions
dismissing foreclosures brought by MERS based on its lack of standing. See, e.g.,
Mortg. Elec. Registration Sys., Inc. v. Azize, No. 05-001295-CI-11 (Fla. Cir. Ct.
Pinellas Cty. Apr. 18, 2005) (dismissing 28 individual foreclosures brought by
MERS on the basis of MERS’ lack of ownership of the notes), appeal docketed,
No. 2D05-4544 (Fla. Dist. Ct. App. 2d Dist. 2005); Mortg. Elec. Registration Sys.,
Inc. v. Griffin, No.16-2004-CA-002155, slip op. at 1 (Fla. Cir. Ct. May 27, 2004)
(dismissing foreclosure initiated by MERS based on lack of standing); see also
MERS v. Rees, supra. (denying summary judgment to MERS because a genuine
issue of fact existed regarding the current ownership of the note; a discrepancy
existed between the affidavit submitted by MERS claiming that it owned the note
and the information on the note); Taylor, Bean & Whitaker, Mortg. Corp. v.
Brown, 583 S.E.2d 844 (Ga. 2003) (reserving for the trial court a determination of
44
whether “MERS as nominee for the original lender and its successors, has the
power to foreclose . . .”).
Amici have represented homeowners in many cases in which MERS has
commenced a foreclosure in its name claiming to own the note and mortgage yet
has never been able to adduce any proof of its ownership of either. For example,
in Kings County Supreme Court, MERS sued Jean Roger M. Bomba and Martin C.
Bomba in a foreclosure action. MERS v. Bomba, No. 1645/03 (N.Y. Sup. Ct.,
Kings County). The Bomba complaint is riddled with mistruths and obfuscations,
including: (1) the true note holder is never mentioned; (2) MERS alleges that its
address is 400 Countrywide Way, Simi Valley, CA 93065 (which is actually
Countrywide Home Loans’ address, not MERS’ address); and (3) MERS alleges
on information and belief that it is the “sole, true and lawful owner of said
bond/note and mortgage.” Id. Amicus SBLS is representing Martin C. Bomba, and
has raised defenses, including the lack of MERS’ standing to bring the foreclosure,
but the merits have not yet been reached in the case. The confusion that MERS
engenders in the courts is typified by the judge’s order denying MERS’ unopposed
motion for an order appointing a referee in MERS v. Trapani, No. 04-19057, slip
op. at 1 (N.Y. Sup. Ct., Suffolk Cty., Mar. 7, 2005):
The submissions reflect that neither the nominal plaintiff, Mortgage
Electronic Recording Systems, Inc. (“MERS”), nor Countrywide
Home Loans, Inc. (“Countrywide”), for which MERS purports to be
the “nominee”, is the record owner of the mortgage sought to be
45
foreclosed herein. The note and mortgage that are the subject of this
foreclosure action identify the lender as Alliance Mortgage Banking
Corp. MERS is identified in the mortgage instrument only as ‘a
separate corporation that is acting solely as a nominee for Lender and
Lender’s successors and assigns.’ There is no allegation or proof in
the submissions as to any assignment of the note and mortgage to
Countrywide, to MERS, or to any other entity, and plaintiff’s counsel
has asserted no authority, statutory or otherwise, for the bare assertion
that ‘[w]here ‘MERS’ is the mortgagee of record there is no need to
prepare an assignment.’
MERS has, in revisions to its Rule 8 governing how foreclosures are
brought, attempted to address the standing problem.37 Now foreclosures can no
longer be brought in MERS’ name in Florida. They may be brought in MERS’
name elsewhere only if the note is endorsed in blank, held by the servicer, and
MERS cannot be pled as the note holder. MERS thus admits that it does not own
the note, and never owns the note. MERS also admits that it is not the entity
initiating or controlling the foreclosure. However, MERS still continues to endorse
hiding the true owner from the borrower: MERS does not require the note holder
to be identified; and MERS permits the owner of the note to designate anyone,
other than MERS, to foreclose, so long as the mortgage, but not the note, is
assigned to the third party.
In its brief, MERS attempts to characterize the various cases denying
standing to MERS to foreclose as cases that are decided based on defective
37 See Jill D. Rein, Significant Changes to Commencing Foreclosure Actions in the Name of
MERS, available at http://www.usfn.org/AM/Template.cfm?Section=Article_Library&
template=/CM/HTMLDisplay.cfm&ContentID=3899.
46
pleading rather than on fundamental standing problems. MERS Br. at 57-66.
However, the pleading defects and the standing problems are one and the same.
MERS creates categories not recognized by the law, and intentionally and
systematically conceals from borrowers, attorneys, and judges the true owner of
the note. It is this concealment that consistently causes both the pleading defects
and the standing problems. MERS continues to flaunt rules of civil procedure for
private gain, causing massive confusion among borrowers, counsel, and the courts.
CONCLUSION
Without any legal authority, MERS is eroding the public databases of this
nation and unjustly withholding critically important information from
homeowners. MERS is designed as a profit-engine for the mortgage industry,
without regard to its infringement of essential public and individual rights.
Because MERS has no beneficial interest in mortgages and should not be permitted
to forcibly effect its intentionally obfuscating recordations, this Court should find
in favor of Respondents-Appellants, Edward P. Romaine and the County of
Suffolk and against Petitioners-Appellants-Respondents, MERS.
Dated: October 6, 2006
Brooklyn, NY
47
Respectfully Submitted,
___________________________
Meghan Faux, Esq.
Josh Zinner, Esq.
Foreclosure Prevention Project
SOUTH BROOKLYN LEGAL SERVICES
105 Court Street
Brooklyn, NY 11201
(718) 237-5500
Attorneys for Amicus Curiae
Nina F. Simon, Esq.*
AARP FOUNDATION LITIGATION
601 E Street, NW
Washington, DC 20049
(202) 434-2059
For Amicus Curiae AARP
Seth Rosebrock, Esq.*
CENTER FOR RESPONSIBLE LENDING
910 17th Street, N.W., Suite 500
Washington, D.C. 20006
202-349-1850
James B. Fishman, Esq., Of Counsel
NATIONAL CONSUMER LAW CENTER
77 Summer Street, 10th Floor
Boston, MA 02110-1006
(617) 542-8010
(Fishman & Neil, LLP
305 Broadway Suite 900
New York, NY 10007)
Brian L. Bromberg, Esq., Of Counsel
NATIONAL ASSOCIATION OF CONSUMER ADVOCATES
1730 Rhode Island Ave., NW, #805
Washington, D.C. 20038
(202) 452-1989
(Bromberg Law Office, P.C.
48
40 Exchange Place, Suite 2010
New York, NY 10005)
April Carrie Charney, Esq.*
JACKSONVILLE AREA LEGAL AID, INC.
126 West Adams Street
Jacksonville, FL 32202
(904) 356-8371
Ruhi Maker, Esq.
EMPIRE JUSTICE CENTER
One West Main Street, 2nd Floor
Rochester, NY 14614
(585) 295-5808
Donna Dougherty, Esq.
Dianne Woodburn, Esq.
LEGAL SERVICES FOR THE ELDERLY IN QUEENS
97-77 Queens Blvd. Suite 600
Rego Park, New York 11374
Ph 718-286-1500, ext 1515
Diane Houk, Esq.
Pamela Sah, Esq.
FAIR HOUSING JUSTICE CENTER
HELP USA
5 Hanover Square, 17th Floor
New York, NY 10004
(212) 400-7000
Sarah Ludwig, Esq.
NEIGHBORHOOD ECONOMIC DEVELOPMENT
ADVOCACY PROJECT
73 Spring Street, Suite 50
New York, NY 10012
212-680-5100, ext. 207
Oda Friedheim, Esq.
THE LEGAL AID SOCIETY
120-46 Queens Boulevard
49
Kew Gardens, New York 11415
Tel 718 286 2450
Margaret Becker, Esq.
Foreclosure Prevention Project
LEGAL SERVICES FOR NEW YORK CITY – STATEN ISLAND
36 Richmond Terrace
Staten Island, NY 10301
(718) 233-6480
Treneeka Cusack, Esq.
LEGAL AID BUREAU OF BUFFALO
237 Main Street, Suite 1602
Buffalo, New York 14203
(716) 853-9555, ext 522
* Pro Hac Vice
50
CERTIFICATE OF COMPLIANCE
I hereby certify that the above brief was prepared on a computer using
Microsoft Word, and using Point 14 Times New Roman typeface, in double space.
The total word count, exclusive of the cover, table of contents, table of citations,
proof of service, and certificate of compliance, is 9,451.
__________________________
Meghan Faux


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Categories : Foreclosure


TERRY MABRY et al., opinion 2923.5 Cilvil code

7 06 2010

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

TERRY MABRY et al.,

Petitioners,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

AURORA LOAN SERVICES, et al.,

Real Parties in Interest.

G042911

(Super. Ct. No. 30-2009-003090696)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, David C. Velazquez, Judge. Writ granted in part and denied in part.
Law Offices of Moses S. Hall and Moses S. Hall for Petitioners.
No appearance for Respondent.
Akerman Senterfitt, Justin D. Balser and Donald M. Scotten for Real Party in Interest Aurora Loan Services.
McCarthy & Holthus, Matthew Podmenik, Charles E. Bell and Melissa Robbins Contts for Real Party in Interest Quality Loan Service Corporation.
Bryan Cave, Douglas E. Winter, Christopher L. Dueringer, Sean D. Muntz and Kamae C. Shaw for Amici Curiae Bank of America and BAC Home Loans Servicing on behalf of Real Parties in Interest.
Wright, Finlay & Zak, Thomas Robert Finlay and Jennifer A. Johnson for Amici Curiae United Trustee’s Association and California Mortgage Association.
Leland Chan for Amicus Curiae California Bankers Association.

I. SUMMARY
Civil Code section 2923.5 requires, before a notice of default may be filed, that a lender contact the borrower in person or by phone to “assess” the borrower’s financial situation and “explore” options to prevent foreclosure. Here is the exact, operative language from the statute: “(2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure.” There is nothing in section 2923.5 that requires the lender to rewrite or modify the loan.
In this writ proceeding, we answer these questions about section 2923.5, also known as the Perata Mortgage Relief Act :
(A) May section 2923.5 be enforced by a private right of action? Yes. Otherwise the statute would be a dead letter.
(B) Must a borrower tender the full amount of the mortgage indebtedness due as a prerequisite to bringing an action under section 2923.5? No. To hold otherwise would defeat the purpose of the statute.
(C) Is section 2923.5 preempted by federal law? No — but, we must emphasize, it is not preempted because the remedy for noncompliance is a simple postponement of the foreclosure sale, nothing more.
(D) What is the extent of a private right of action under section 2923.5? To repeat: The right of action is limited to obtaining a postponement of an impending foreclosure to permit the lender to comply with section 2923.5.
(E) Must the declaration required of the lender by section 2923.5, subdivision (b) be under penalty of perjury? No. Such a requirement is not only not in the statute, but would be at odds with the way the statute is written.
(F) Does a declaration in a notice of default that tracks the language of section 2923.5, subdivision (b) comply with the statute, even though such language does not on its face delineate precisely which one of the three categories set forth in the declaration applies to the particular case at hand? Yes. There is no indication that the Legislature wanted to saddle lenders with the need to “custom draft” the statement required by the statute in notices of default.
(G) If a lender did not comply with section 2923.5 and a foreclosure sale has already been held, does that noncompliance affect the title to the foreclosed property obtained by the families or investors who may have bought the property at the foreclosure sale? No. The Legislature did nothing to affect the rule regarding foreclosure sales as final.
(H) In the present case, did the lender comply with section 2923.5? We cannot say on this record, and therefore must return the case to the trial court to determine which of the two sides is telling the truth. According to the lender, the borrowers themselves initiated a telephone conversation in which foreclosure-avoidance options were discussed, and there were many, many phone calls to the borrowers to attempt to discuss foreclosure-avoidance options. According to the borrowers, no one ever contacted them about nonforeclosure options. The trial judge, however, never reached this conflict in the facts, because he ruled strictly on legal grounds: namely (1) that section 2923.5 does not provide for a private right of action and (2) section 2923.5 is preempted by federal law. As indicated, we have concluded otherwise as to those two issues.
(I) Can section 2923.5 be enforced in a class action in this case? Not under these facts. The operation of section 2923.5 is highly fact-specific, and the details as to what might, or might not, constitute compliance can readily vary from lender to lender and borrower to borrower.
II. BACKGROUND
In December 2006, Terry and Michael Mabry refinanced the loan on their home in Corona from Paul Financial, borrowing about $700,000. In April 2008, Paul Financial assigned to Aurora Loan Services the right to service the loan. In this opinion, we will treat Aurora as synonymous with the lender and use the terms interchangeably.
According to the lender, in mid-July 2008 — before the Mabrys missed their August 2008 loan payment — the couple called Aurora on the telephone to discuss the loan with an Aurora employee. The discussion included mention of a number of options to avoid foreclosure, including loan modification, short sale, deed-in-lieu of foreclosure, and even a special forbearance. The Aurora employee sent a letter following up on the conversation. The letter explained the various options to avoid foreclosure, and asked the Mabrys to forward current financial information to Aurora so it could consider the Mabrys for these options.
According to the lender, the Mabrys missed their September 2008 payment as well, and mid-month Aurora sent them another letter describing ways to avoid foreclosure. Aurora employees called the Mabrys “many times” to discuss the situation. The Mabrys never picked up.
It is undisputed that later in September, the Mabrys filed Chapter 11 bankruptcy and Aurora did not contact the Mabrys while the bankruptcy was pending. (See 11 U.S.C. § 362 [automatic stay].) The Mabrys had their Chapter 11 case dismissed, however, in late March 2009.
According to the lender, Aurora once again began trying to call the Mabrys, calling them “numerous times,” including “three times on different days.” Meanwhile, in mid-April the Mabrys sent an authorization to discuss the loan with their lawyers.
According to the lender, finally, in June, the Mabrys sent two faxes to Aurora, the aggregate effect of which was to propose a short sale to the Mabrys’ attorney, Moses S. Hall, for $350,000. If accepted, the short sale would have meant a loss of over $400,000 on the loan. Aurora rejected that offer, and an attorney in Hall’s law office proposed a sale price of $425,000, which would have meant a loss to the lender of about $340,000.
It is undisputed that on June 18, 2009, Aurora recorded a notice of default. The notice of default used this (obviously form) language: “The Beneficiary or its designated agent declares that it has contacted the borrower, tried with due diligence to contact the borrower as required by California Civil Code section 2923.5, or the borrower has surrendered the property to the beneficiary or authorized agent, or is otherwise exempt from the requirements of section 2923.5.” Aurora sent six copies of the recorded notice of default to the Mabrys’ home by certified mail, and the certifications showed they were delivered.
It is also undisputed that on October 7, the Mabrys filed a complaint in Orange County Superior Court based on Aurora’s alleged failure to comply with section 2923.5.
According to the borrowers, no one had ever contacted them about their foreclosure options. Michael Mabry stated the following in his declaration: “We have never been contacted by Aurora nor [sic] any of its agents in person, by telephone or by first class mail to explore options for us to avoid foreclosure as required in CC § 2923.5.”
The complaint sought a temporary restraining order to prevent the foreclosure sale then scheduled just a week away, on October 14, 2009. Based on the allegation of no contact, the trial court issued a temporary restraining order, and scheduled a hearing for October 20.
But exactly one week before the October 20 hearing, the Mabrys filed an amended complaint, this one specifically adding class action allegations and seeking injunctive relief for an entire class. This new filing came with another request for a temporary restraining order, which was also granted, with a hearing on that temporary restraining order scheduled for October 27 (albeit the order was directed at Aurora only).
The first restraining order was vacated on October 20, the second on October 27. The trial judge did not, however, resolve the conflict in the facts presented by the pleadings. Rather he concluded: (1) the action is preempted by federal law; (2) there is no private right of action under section 2923.5 — the statute can only be enforced by members of pooling and servicing agreements; and (3) the Mabrys were required to at least tender all arrearages to enjoin any foreclosure proceedings.
The Mabrys filed a motion for reconsideration and a third request for a restraining order based on supposedly new law. The new law was a now review-granted Court of Appeal opinion which, let us merely note here, appears to have been quite off-point in regards to any issue which the trial judge had just decided. So it is not surprising that the requested restraining order was denied. The foreclosure sale was now scheduled for November 30, 2009. Six days before that, though, the Mabrys filed this writ proceeding, and two days later this court stayed all proceedings. We invited amicus curiae to give their views on the issues raised by the petition, and subsequently scheduled an order to show cause to consider those issues.
III. DISCUSSION
A. Private Right of Action? Yes
1. Preliminary Considerations
A private right of action may inhere within a statute, otherwise silent on the point, when such a private right of action is necessary to achieve the statute’s policy objectives. (E.g., Cannon v. University of Chicago (1979) 441 U.S. 677, 683 [implying private right of action into Title IX of the Civil Rights Act because such a right was necessary to achieve the statute’s policy objectives]; Basic Inc. v. Levinson (1988) 485 U.S. 224, 230-231 [implying private right of action to enforce securities statute].)
That is, the absence of an express private right of action is not necessarily preclusive of such a right. There are times when a private right of action may be implied by a statute. (E.g., Siegel v. American Savings & Loan Assn. (1989) 210 Cal.App.3d 953, 966 [“Before we reach the issue of exhaustion of administrative remedies, we must determine, therefore, whether plaintiffs have an implied private right of action under HOLA.”].)
California courts have, of recent date, looked to Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 (Moradi-Shalal) for guidance as to whether there is an implied private right of action in a given statute. In Moradi-Shalal, for example, the presence of a comprehensive administrative means of enforcement of a statute was one of the reasons the court determined that there was no private right of action to enforce a statute (Ins. Code, § 790.03, subd. (h)) regulating general insurance industry practices. (See Moradi-Shalal, supra, 46 Cal.3d at p. 300.)
There is also a pre-Moradi Shalal approach, embodied in Middlesex Ins. Co. v. Mann (1981) 124 Cal.App.3d 558, 570 (Middlesex). (The Middlesex opinion itself copied the idea from the Restatement Second of Torts, section 874A.) The approach looks to whether a private remedy is “appropriate” to further the “purpose of the legislation” and is “needed to assure the effectiveness of the provision.” (Middlesex, supra, 124 Cal.App.3d at p. 570.)
Obviously, where the two approaches conflict, the one used by our high court in Moradi-Shalal trumps the Middlesex approach. But we may note at this point that as regards section 2923.5, there is no alternative administrative mechanism to enforce the statute. By contrast, in Moradi-Shalal, there was an existing administrative mechanism at hand (by way of the Insurance Commissioner) available to enforce section 790.03, subdivision (h) of the Insurance Code.
There are other corollary principles as well.
First, California courts, quite naturally, do not favor constructions of statutes that render them advisory only, or a dead letter. (E.g., Petropoulos v. Department of Real Estate (2006) 142 Cal.App.4th 554, 567; People v. Stringham (1988) 206 Cal.App.3d 184, 197.) Our colleagues in Division One of this District nicely summarized this point in Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 375: “The question of whether a regulatory statute creates a private right of action depends on legislative intent . . . . In determining legislative intent, ‘[w]e first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent . . . . The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context. . . . These canons generally preclude judicial construction that renders part of the statute “meaningless or inoperative.”’” (Italics added.)
Second, statutes on the same subject matter or of the same subject should be construed together so that all the parts of the statutory scheme are given effect. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1090-1091.) This canon is particularly important in the case before us, where there is an enforcement mechanism available at hand to enforce section 2923.5, in the form, as we explain below, of section 2924g. Ironically though, the enforcement mechanism at hand, in direct contrast to the one in Moradi-Shalal, is one that strongly implies individual enforcement of the statute.
Third, historical context can also shed light on whether the Legislature intended a private right of action in a statute. As noted by one federal district court that has found a private right of action in section 2923.5, the fact that a statute was enacted as an emergency statute is an important factor in determining legislative intent. (See Ortiz v. Accredited Home Lenders, Inc. (S.D. 2009) 639 F.Supp.2d 1159, 1166 [agreeing with argument that “the California legislature would not have enacted this ‘urgency’ legislation, intended to curb high foreclosure rates in the state, without any accompanying enforcement mechanism”]; cf. County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 609 [admitting that private right of action might exist, even if the Legislature did not imply one, if “‘compelling reasons of public policy’” required “judicial recognition of such a right”].) Section 2923.5 was enacted in 2008 as a manifestation of a felt need for urgent action in the midst of a cascading torrent of foreclosures.
Finally, of course, there is recourse to legislative history. Alas, in this case, there is silence on the matter as regards the existence of a private right of action in the final draft of the statute, and we have been cited to nothing in the history that suggests a clear legislative intent one way or the other. (See generally J.A. Jones Construction Co. v. Superior Court (1994) 27 Cal.App.4th 1568, 1575 (J.A. Jones) [emphasizing importance of clear intent appearing in legislative history].) To be sure, as we were reminded at oral argument, an early version of section 2923.5 had an express provision for a private right of action and that provision did not make its way into the final version of the statute. And we recognize that this factor suggests the Legislature may not have wanted to have section 2923.5 enforced privately.
On the other hand, the bottom line was an outcome of silence, not a clear statement that there should be no individual enforcement. And silence, as this court pointed out in J.A. Jones, has its own implications. There, we cited Professor Eskridge’s work on statutory interpretation (see Eskridge, The New Textualism (1990) 37 U.C.L.A. L.Rev. 621, 670-671 (hereinafter “Eskridge on Textualism”)) to recognize that ambiguity in a statute may itself be the result of both sides in the legislative process agreeing to let the courts decide a point: “[I]f there is ambiguity it is because the legislature either could not agree on clearer language or because it made the deliberate choice to be ambiguous — in effect, the only ‘intent’ is to pass the matter on to the courts.” (J.A. Jones, supra, 27 Cal. App.4th at p. 1577.) As Professor Eskridge put it elsewhere in his article: “The vast majority of the Court’s difficult statutory interpretation cases involve statutes whose ambiguity is either the result of deliberate legislative choice to leave conflictual decisions to agencies or the courts.” (Eskridge on Textualism, supra, 37 UCLA L.Rev. at p. 677.)
We have a concrete example in the case at hand. Amicus curiae, the California Bankers Association, asserts that if section 2923.5 had included an express right to a private right of action, the association would have vociferously opposed the legislation. Let us accept that as true. But let us also accept as a reasonable premise that the sponsors of the bill (2008, Senate Bill No. 1137) would have vociferously opposed the legislation if it had an express prohibition on individual enforcement. The point is, the bankers did not insist on language expressly or even impliedly precluding a private right of action, or, if they did, they didn’t get it. The silence is consonant with the idea that section 2923.5 was the result of a legislative compromise, with each side content to let the courts struggle with the issue.
With these observations, we now turn to the language, structure and function of the statute at issue.
2. Operation of Section 2923.5
Section 2923.5 is one of a series of detailed statutes that govern mortgages that span sections 2920 to 2967. Within that series is yet another long series of statutes governing rules involving foreclosure. This second series goes from section 2924, and then follows with sections 2924a through 2924l. (There is no section 2924m . . . yet.)
Section 2923.5 concerns the crucial first step in the foreclosure process: The recording of a notice of default as required by section 2924. (Just plain section 2924 — this one has no lower case letter behind it.)
The key text of section 2923.5 — “key” because of the substantive obligation it imposes on lenders — basically says that a lender cannot file a notice of default until the lender has contacted the borrower “in person or by telephone.” Thus an initial form letter won’t do. To quote the text directly, lenders must contact the borrower by phone or in person to “assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure.” The statute, of course, has alternative provisions in cases where the lender tries to contact a borrower, and the borrower simply won’t pick up the phone, the phone has been disconnected, the borrower hides or otherwise evades contact.
The contrast between section 2923.5 and one of its sister-statutes, section 2923.6, is also significant. By its terms, section 2923.5 operates substantively on lenders. They must do things in order to comply with the law. In Hohfeldian language, it both creates rights and corresponding obligations.
But consider section 2923.6, which does not operate substantively. Section 2923.6 merely expresses the hope that lenders will offer loan modifications on certain terms. By contrast, section 2923.5 requires a specified course of action. (There is a reason for the difference, as we show in part III.C., dealing with federal preemption. In a word, to have required loan modifications would have run afoul of federal law.)
As noted above, other steps in the foreclosure process are set forth in sections 2924a through 2924l. The topic of the postponement of foreclosure sales is addressed in section 2924g.
Subdivision (c)(1)(A) of section 2924g sets forth the grounds for postponements of foreclosure sales. One of those grounds is the open-ended possibility that any court of competent jurisdiction may issue an order postponing the sale. Section 2923.5 and section 2924g, subdivision (c)(1)(A), when read together, establish a natural, logical whole, and one wholly consonant with the Legislature’s intent in enacting 2923.5 to have individual borrowers and lenders “assess” and “explore” alternatives to foreclosure: If section 2923.5 is not complied with, then there is no valid notice of default, and without a valid notice of default, a foreclosure sale cannot proceed. The available, existing remedy is found in the ability of a court in section 2924g, subdivision (c)(1)(A), to postpone the sale until there has been compliance with section 2923.5. Reading section 2923.5 together with section 2924g, subdivision (c)(1)(A) gives section 2923.5 real effect. The alternative would mean that the Legislature conferred a right on individual borrowers in section 2923.5 without any means of enforcing that right.
By the same token, compliance with section 2923.5 is necessarily an individualized process. After all, the details of a borrower’s financial situation and the options open to a particular borrower to avoid foreclosure are going to vary, sometimes widely, from borrower to borrower. Section 2923.5 is not a statute, like subdivision (h) of section 790.03 of the Insurance Code construed in Moradi-Shalal, which contemplates a frequent or general business practice, and thus its very text is necessarily directed at those who regulate the insurance industry. (Insurance Code section 790.03, subdivision (h) begins with the words, “Knowingly committing or performing with such frequency as to indicate a general business practice any of the following unfair claims settlement practices: . . . .”; see generally Moradi-Shalal, supra, 46 Cal.3d 287.)
Rather, in order to have its obvious goal of forcing parties to communicate (the statutory words are “assess” and “explore”) about a borrower’s situation and the options to avoid foreclosure, section 2923.5 necessarily confers an individual right. The alternative proffered by the trial court — enforcement by the servicer of pooling agreements — involves the facially unworkable problem of fitting individual situations into collective pools.
The suggestion of one amicus that the Legislature intended enforcement of section 2923.5 to reside within the Attorney General’s office is one of which we express no opinion. Our decision today should thus not be read as precluding such enforcement by the Attorney General’s office. But we do note that the same individual-collective problem would dog Attorney General enforcement of the statute. To be sure (which is why the possibility should be left open), there might, ala Insurance Code section 790.03, subdivision (h), be lenders who systematically ignore section 2923.5, and their “general business practice” would be susceptible to some sort of collective enforcement. Even so, the Attorney General’s office can hardly be expected to take up the cause of every individual borrower whose diverse circumstances show noncompliance with section 2923.5.
3. Application
We now put the preceding ideas and factors together.
While the dropping of an express provision for private enforcement in the legislative process leading to section 2923.5 does indeed give us pause, it is outweighed by two major opposing factors. First, the very structure of section 2923.5 is inherently individual. That fact strongly suggests a legislative intention to allow individual enforcement of the statute. The statute would become a meaningless dead letter if no individual enforcement were allowed: It would mean that the Legislature created an inherently individual right and decided there was no remedy at all.
Second, when section 2923.5 was enacted as an urgency measure, there already was an existing enforcement mechanism at hand — section 2924g. There was no need to write a provision into section 2923.5 allowing a borrower to obtain a postponement of a foreclosure sale, since such a remedy was already present in section 2924g. Reading the two statutes together as allowing a remedy of postponement of foreclosure produces a logical and natural whole.
B. Tender Full Amount of Indebtedness? No
The right conferred by section 2923.5 is a right to be contacted to “assess” and “explore” alternatives to foreclosure prior to a notice of default. It is enforced by the postponement of a foreclosure sale. Therefore it would defeat the purpose of the statute to require the borrower to tender the full amount of the indebtedness prior to any enforcement of the right to — and that’s the point — the right to be contacted prior to the notice of default. Case law requiring payment or tender of the full amount of payment before any foreclosure sale can be postponed (e.g., Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578 [“It is settled that an action to set aside a trustee’s sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security.”]) arises out of a paradigm where, by definition, there is no way that a foreclosure sale can be avoided absent payment of all the indebtedness. Any irregularities in the sale would necessarily be harmless to the borrower if there was no full tender. (See 4 Miller & Starr, Cal. Real Estate (2d ed. 1989) § 9:154, pp. 507-508.) By contrast, the whole point of section 2923.5 is to create a new, even if limited right, to be contacted about the possibility of alternatives to full payment of arrearages. It would be contradictory to thwart the very operation of the statute if enforcement were predicated on full tender. It is well settled that statutes can modify common law rules. (E.g., Evangelatos v. Superior Court
44 Cal.3d 1188, 1192 [noting that Civil Code sections 1431 to 1431.5 had modified traditional common law doctrine of joint and several liability].)
C. Preempted by Federal Law? No — As Long
As Relief Under Section 2923.5 is Limited to Just Postponement
1. Historical Context
A remarkable aspect of section 2923.5 is that it appears to have been carefully drafted to avoid bumping into federal law, precisely because it is limited to affording borrowers only more time when lenders do not comply with the statute. To explain that, though, we need to make a digression into state debtors’ relief acts as they have manifested themselves in four previous periods of economic distress.
The first period of economic distress was the depression of the mid-1780’s that played a large part in engendering the United States Constitution in the first place. As Chief Justice Charles Evans Hughes would later note for a majority of the United States Supreme Court, there was “widespread distress following the revolutionary period and the plight of debtors, had called forth in the States an ignoble array of legislative schemes for the defeat of creditors and the invasion of contractual obligations.” (Home Building and Loan Ass’n. v. Blaisdell (1934) 290 U.S. 398, 427 (Blaisdell).) Consequently, the federal Constitution of 1789 contains the contracts clause, which forbids states from impairing contracts. (See Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and ‘Takings’ Clause Jurisprudence (1986) 60 So.Cal. L.Rev. 1, 21, fn. 86 [“Although debtor relief legislation was frequently enacted in the Confederation era, it was intensely opposed. It was among the chief motivations for the convening of the Philadelphia convention, and the Constitution drafted there was designed to eliminate such legislation through a variety of means.”].)
The second period of distress arose out of the panic of 1837, which prompted, in 1841, the Illinois state legislature to enact legislation severely restricting foreclosures. The legislation (1) gave debtors 12 months after any foreclosure sale to redeem the property; and (2) prevented any foreclosure sale in the first place unless the sale fetched at least two-thirds of the appraised value of the property. (See Bronson v. Kinzie (1843) 42 U.S. 311 (Bronson); Blaisdell, supra, 290 U.S. at p. 431.) In an opinion, the main theme of which is the interrelationship between contract rights and legal remedies to enforce those rights (see generally Bronson, supra, 42 U.S. at pp. 315-321), the Bronson court reasoned that the Illinois legislation had effectively destroyed the contract rights of the lender as regards a mortgage made in 1838. (See id. at p. 317 [“the obligation of the contract, and the rights of a party under it, may, in effect, be destroyed by denying a remedy altogether”].)
The third period of distress was, of course, the Great Depression of the 1930’s. In 1933, the Minnesota Legislature enacted a mortgage moratorium law that extended the period of redemption under Minnesota law until 1935. (See Blaisdell, supra, 290 U.S. at pp. 415-416.) But — and the high court majority found this significant — the law required debtors, in applying for an extension of the redemption period — to pay the reasonable value of the income of the property, or reasonable rental value if it didn’t produce income. (Id. at. pp. 416-417.) The legislation was famously upheld in Blaisdell. In distinguishing Bronson, the Blaisdell majority made the point that the statute did not substantively impair the debt the way the legislation in Bronson had: “The statute,” said the court, “does not impair the integrity of the mortgage indebtedness.” (Id. at p. 425.) The court went on to emphasize the need to pay the fair rental value of the property, which, it noted, was “the equivalent of possession during the extended period.”
Finally, the fourth period was within the living memory of many readers, namely, the extraordinary inflation and high interest rates of the late 1970’s. That period engendered Fidelity Federal Savings & Loan Association v. de la Cuesta (1982) 458 U.S. 141 (de la Cuesta). Many mortgages had (still have) what is known as a “due-on-sale” clause. As it played out in the 1970’s, the clause effectively required any buyer of a new home to obtain a new loan, but at the then-very high market interest rates. To circumvent the need for a new high rate mortgage, creative wrap-around financing was invented where a buyer would assume the obligation of the old mortgage, but that required the due-on-sale clause not be enforced.
An earlier decision of the California Supreme Court, Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, had encouraged this sort of creative financing by holding that due-on-sale clauses violated California state law as an unreasonable restraint on alienation. Despite that precedent, the trial judge in the de la Cuesta case (Edward J. Wallin, who would later join this court) held that regulations issued by the Federal Home Loan Bank Board, by the authority of the Home Owners’ Loan Act of 1933 preempted state law that invalidated due-on-sale clause. A California appellate court in the Fourth District (in an opinion by Justice Marcus Kaufman, who would later join the California Supreme Court) reversed the trial court. The United States Supreme Court, however, agreed with Judge Wallin’s determination, and reversed the appellate judgment and squarely held the state law to be preempted.
The de la Cuesta court observed that the bank board’s regulations were plain — “even” the California appellate court had been required to recognize that. (de la Cuesta, supra, 458 U.S. at p. 154). On top of the express preemption, Congress had expressed no intent to limit the bank board’s authority to “regulate the lending practices of federal savings and loans.” (Id. at p. 161.) Further, going into the history of the Home Owners’ Loan Act, the de la Cuesta court pointed out that “mortgage lending practices” are a “critical” aspect of a savings and loan’s “‘operation,’” and the Home Loan Bank Board had issued the due-on-sale regulations in order to protect the economic solvency of such lenders. (See id. at pp. 167-168.) In what is perhaps the most significant part of the rationale for our purposes, the bank board had concluded that “the due-on-sale clause is ‘an important part of the mortgage contract,’” consequently its elimination would have an adverse effect on the “financial stability” of federally chartered lenders. (Id. at p. 168.) For example, invalidation of the due-on-sale clause would make it hard for savings and loans “to sell their loans in the secondary markets.” (Ibid.)
With this history behind us, we now turn to the actual regulations at issue in the case before us.
2. The HOLA Regulations
Under the Home Owner’s Loan Act of 1933 (12 U.S.C. § 1461 et seq.) the federal Office of Thrift Supervision has issued section 560.2 of title 12 of the Code of Federal Regulations, a regulation that itself delineates what is a matter for federal regulation, and what is a matter for state law. Interestingly enough, section 560.2 is written in the form of examples, using the “ejusdem generis” approach of requiring a court to figure out what is, and what is not, in the same general class or category as the items given in the example.
On the preempted side, section 560.2 includes:
– “terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate” (§ 560.2(b)(4));
– “balance, payments due, or term to maturity of the loan” (§ 560.2(b)(4)); and, most importantly for this case,
– the “processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.” (§ 560.2(b)(10), italics added.)
On the other side, left for the state courts, is “Real property law.” (12 C.F.R. § 560.2(c)(2).)
We agree with the Mabrys that the process of foreclosure has traditionally been a matter of state real property law, a point both noted by the United States Supreme Court in BFP v. Resolution Trust Corp. (1994) 511 U.S. 531, 541-542, and academic commentators (e.g., Alexander, Federal Intervention in Real Estate Finance: Preemption and Federal Common Law (1993) 71 N.C. L. Rev. 293, 293 [“Historically, real property law has been the exclusive domain of the states.”]), including at least one law professor who laments that diverse state foreclosure laws tend to hinder efforts to achieve banking stability at the national level. (See Nelson, Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law (2010) 37 Pepperdine L.Rev. 583, 588-590 [noting that mortgage foreclosure law varies from state to state, and advocating federalization of mortgage foreclosure law].) By contrast, we have not been cited to anything in the federal regulations that govern such things as initiation of foreclosure, notice of foreclosure sales, allowable times until foreclosure, or redemption periods. (Though there are commentators, like Professor Nelson, who argue there should be.)
Given the traditional state control over mortgage foreclosure laws, it is logical to conclude that if the Office of Thrift Supervision wanted to include foreclosure as within the preempted category of loan servicing, it would have been explicit. Nothing prevented the office from simply adding the words “foreclosure of” to section 560.2(b)(10).
D. The Extent of Section 2923.5?
More Time and Only More Time
State law should be construed, whenever possible, to be in harmony with federal law, so as to avoid having the state law invalidated by federal preemption. (See Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 93; California Arco Distributors, Inc. v. Atlantic Richfield Co. (1984) 158 Cal.App.3d 349, 359.)
We emphasize that we are able to come to our conclusion that section 2923.5 is not preempted by federal banking regulations because it is, or can be construed to be, very narrow. As mentioned above, there is no right, for example, under the statute, to a loan modification.
A few more comments on the scope of the statute:
First, to the degree that the words “assess” and “explore” can be narrowly or expansively construed, they must be narrowly construed in order to avoid crossing the line from state foreclosure law into federally preempted loan servicing. Hence, any “assessment” must necessarily be simple — something on the order of, “why can’t you make your payments?” The statute cannot require the lender to consider a whole new loan application or take detailed loan application information over the phone. (Or, as is unlikely, in person.)
Second, the same goes for any “exploration” of options to avoid foreclosure. Exploration must necessarily be limited to merely telling the borrower the traditional ways that foreclosure can be avoided (e.g., deeds “in lieu,” workouts, or short sales), as distinct from requiring the lender to engage in a process that would be functionally indistinguishable from taking a loan application in the first place. In this regard, we note that section 2923.5 directs lenders to refer the borrower to “the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency.” The obvious implication of the statute’s referral clause is that the lender itself does not have any duty to become a loan counselor itself.
Finally, to the degree that the “assessment” or “exploration” requirements impose, in practice, burdens on federal savings banks that might arguably push the statute out of the permissible category of state foreclosure law and into the federally preempted category of loan servicing or loan making, evidence of such a burden is necessary before the argument can be persuasive. For the time being, and certainly on this record, we cannot say that section 2923.5, narrowly construed, strays over the line.
Given such a narrow construction, section 2923.5 does not, as the law in Blaisdell did not, affect the “integrity” of the basic debt. (Cf. Lopez v. World Savings & Loan Assn. (2003) 105 Cal.App.4th 729 [section 560.2 preempted state law that capped payoff demand statement fees].)
E. The Wording of the Declaration:
Okay If Not Under Penalty of Perjury
In addition to the substantive act of contacting the borrower, section 2923.5 requires a statement in the notice of default. The statement is found in subdivision (b), which we quote here: “(b) A notice of default filed pursuant to Section 2924 shall include a declaration that the mortgagee, beneficiary, or authorized agent has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required pursuant to subdivision (h).” (Italics added.)
The idea that this “declaration” must be made under oath must be rejected. First, ordinary English usage of the word “declaration” imports no requirement that it be under oath. In the Oxford English Dictionary, for example, numerous definitions of the word are found, none of which of require a statement under oath or penalty of perjury. In fact, the second legal definition given actually juxtaposes the idea of a declaration against the idea of a statement under oath: “A simple affirmation to be taken, in certain cases, instead of an oath or solemn affirmation.” (4 Oxford English Dict. (2d. ed. 1991) at p. 336.)
Second, even the venerable Black’s Law Dictionary doesn’t define “declaration” to necessarily be under oath. Its very first definition of the word is: “A formal statement, proclamation or announcement, esp. one embodied in an instrument.” (Black’s Law Dict. (9th ed. 2009) at p. 467.)
Third, if the Legislature wanted to say that the statement required in section 2923.5 must be under penalty of perjury, it knew how to do so. The words “penalty of perjury” are used in other laws governing mortgages. (E.g., § 2941.7, subdivision (b) [“The declaration provided for in this section shall be signed by the mortgagor or trustor under penalty of perjury.”].)
And, finally — back to our point about the inherent individual operation of the statute — the very structure of subdivision (b) belies any insertion of a penalty of perjury requirement. The way section 2923.5 is set up, too many people are necessarily involved in the process for any one person to likely be in the position where he or she could swear that all three requirements of the declaration required by subdivision (b) were met. We note, for example, that subdivision (a)(2) requires any one of three entities (a “mortgagee, beneficiary, or authorized agent”) to contact the borrower, and such entities may employ different people for that purpose. And the option under the statute of no contact being required (per subdivision (h) ) further involves individuals who would, in any commercial operation, probably be different from the people employed to do the contacting. For example, the person who would know that the borrower had surrendered the keys would in all likelihood be a different person than the legal officer who would know that the borrower had filed for bankruptcy.
The argument for requiring the declaration to be under penalty of perjury relies on section 2015.5 of the Code of Civil Procedure, but that reliance is misplaced. We quote all of section 2015.5 in the margin. Essentially the statute says if a statement in writing is required to be supported by sworn oath, making the statement under penalty of perjury will be sufficient. The key language is: “Whenever, under any law of this state . . . made pursuant to the law of this state, any matter is required . . . to be . . . evidenced . . . by the sworn . . . declaration . . . in writing of the person making the same . . . such matter may with like force and effect be . . . evidenced . . . by the unsworn . . . declaration . . . in writing of such person which recites that it is . . . declared by him or her to be true under penalty of perjury . . . .” (Italics added.) The section sheds no light on whether the declaration required in section 2923.5, subdivision (b) must be under penalty of perjury.
F. The Wording of the Declaration:
Okay If It Tracks the Statute
In light of what we have just said about the multiplicity of persons who would necessarily have to sign off on the precise category in subdivision (b) of the statute that would apply in order to proceed with foreclosure (contact by phone, contact in person, unsuccessful attempts at contact by phone or in person, bankruptcy, borrower hiring a foreclosure consultant, surrender of keys), and the possibility that such persons might be employees of not less than three entities (mortgagee, beneficiary, or authorized agent), there is no way we can divine an intention on the part of the Legislature that each notice of foreclosure be custom drafted.
To which we add this important point: By construing the notice requirement of section 2923.5, subdivision (b), to require only that the notice track the language of the statute itself, we avoid the problem of the imposition of costs beyond the minimum costs now required by our reading of the statute.
G. Noncompliance Before Foreclosure
Sale Affect Title After Foreclosure Sale? No
A primary reason for California’s comprehensive regulation of foreclosure in the Civil Code is to ensure stability of title after a trustee’s sale. (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1249-1250 [“comprehensive statutory scheme” governing foreclosure has three purposes, one of which is “to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser” (internal quotations omitted)].)
There is nothing in section 2923.5 that even hints that noncompliance with the statute would cause any cloud on title after an otherwise properly conducted foreclosure sale. We would merely note that under the plain language of section 2923.5, read in conjunction with section 2924g, the only remedy provided is a postponement of the sale before it happens.
H. Lender Compliance in This Case?
Somebody is Not Telling the Truth
and It’s the Trial Court’s Job to
Determine Who It Is
We have already recounted the conflict in the evidence before the trial court regarding whether there was compliance with section 2923.5. Rarely, in fact, are stories so diametrically opposite: According to the Mabrys, there was no contact at all. According to Aurora, not only were there numerous contacts, but the Mabrys even initiated a proposal by which their attorney would buy the property.
Somebody’s not telling the truth, but appellate courts do not resolve conflicts in evidence. Trial courts do. (Butt v. State of California (1992) 4 Cal.4th 668, 697, fn. 23 [“Moreover, Diaz and Bezemek concede the proffered evidence is disputed; appellate courts will not resolve such factual conflicts.”].) This case will obviously have to be remanded for an evidentiary hearing.
I. Is This Case Suitable for
Class Action Treatment? No
As we have seen, section 2923.5 contemplates highly-individuated facts. One borrower might not pick up the telephone, one lender might only call at the same time each day in violation of the statute, one lender might (incorrectly) try to get away with a form letter, one borrower might, like the old Twilight Zone “pitchman” episode, try to keep the caller on the line but change the subject and talk about anything but alternatives to foreclosure, one borrower might, as Aurora asserts here, try to have his or her attorney do a deal that avoids foreclosure, etcetera.
In short, how in the world would a court certify a class? Consider that in this case, there is even a dispute over the basic facts as to whether the lender attempted to comply at all. We do not have, under these facts at least, a question of a clean, systematic policy on the part of a lender that might be amenable to a class action (or perhaps enforcement by the Attorney General). This case is not one, to be blunt, where the lender admits that it simply ignored the statute and proceeded on the theory that federal law had preempted it. We express no opinion as to any scenario where a lender simply ignored the statute wholesale — that sort of scenario is why we do not preclude, a priori, class actions and have not expressed an opinion as to whether the Attorney General or a private party in such a situation might indeed seek to enforce section 2923.5 in a class action.
Consequently, while we must grant the writ petition so as to allow the Mabrys a hearing on the factual merits of compliance, we deny it insofar as it seeks reinstatement of any claims qua class action. By the same token, in light of the limited right to time conferred under section 2923.5, we also deny the writ petition insofar as it seeks reinstatement of any claim for money damages.
IV. CONCLUSION
Let a writ issue instructing the trial court to decide whether or not Aurora complied with section 2923.5. To the degree that the trial court’s order precludes the assertion of any class action claims, we deny the writ. If the trial court finds that Aurora has complied with section 2923.5, foreclosure may proceed. If not, it shall be postponed until Aurora files a new notice of default in the wake of substantive compliance with section 2923.5.
Given that this writ petition is granted in part and denied in part, each side will bear its own costs in this proceeding.

SILLS, P. J.
WE CONCUR:

ARONSON, J.

IKOLA, J.


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Tags: stop foreclosure, Mortgage modification, mortgage meltdown, Foreclosure, 2923.5
Categories : 2923.5, 2923.6, Foreclosure


Mers brief Florida Taylor v Deutsche Bank Mers Standing

2 06 2010

Appeal No. 5D09-4035
IN THE 5TH DISTRICT FLORIDA COURT OF APPEALS
Gregory Taylor
Appellant
v.
Deutsche Bank National Trust Company
as Trustee for FFMLT 2006-FF4, Mortgage Pass-Through Certificates, Series
2006-FF4
Appellee
APPEAL IN CAUSE NO. 05-2008-CA-065811
IN THE CIRCUIT COURT OF BREVARD COUNTY, FLORIDA
David E. Silverman presiding
APPELLANTS’ OPENING BRIEF
George M. Gingo, FBN 879533
P.O. Box 838
Mims, Florida 32754
321-264-9624 Office
321-383-1105 Fax
ggingo@yahoo.com
1
TABLE OF CONTENTS
Table of Contents . . . . . 2
Table of Citations . . . . . 3
Table of Cases . . . . 3 – 7
Table of Statutes . . . . 7 – 8
Table of Secondary Sources . . 8
Statement of the Case and Statement of Facts 9 – 16
Standard on Appeal . . . . 16
Summary of the Arguments. . . . 17
Arguments . . . . . . 18
Issue 1:
The Appellee presented evidence
that it was not entitled to enforce
the promissory note in question. . 18 – 23
Issue 2:
MERS did not pass an enforceable
interest in the promissory note to
the Appellee. . . . . 23 – 33
Conclusion . . . . . . 33
Certificate of Service . . . . 33
Certificate of Font Compliance . . . 34
2
TABLE OF CITATIONS
TABLE OF CASES
Amacher v. Keel,
358 So. 2d 889
(Fla. 2 DCA 1975) . . . . . . . 24
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242
(1986). . . . . . . . . 16
Booker v. Sarasota, Inc.,
707 So.2d 886
(Fla. App. 1 Dist., 1998). . . . . . . 12
Brown v. Snell,
6 Fla. 741 (1856). . . . . . . . 18
Carpenter v. Longan,
16 Wall. 271,
83 U.S. 271,
21 L.Ed. 313
(1872). . . . . . . . . 24, 32
City of Cocoa v. Leffler,
762 So. 2d 1052
(Fla. 5th DCA 2000). . . . . . . 16
Century Group Inc. v.
Premier Fin. Services East L. P.,
724 So. 2D 661
(Fla. 2 DCA 1999) . . . . . . . 18
Case v. Smith,
200 So. 917
(Fla. 1941). . . . . . . . . 23
3
Collins v. Briggs,
123 So. 833
(Fla. 1929). . . . . . . . . 23
Evins v. Gainsville Nat’l Bank,
85 So. 659
(Fla. 1920). . . . . . . . . 23
Grier v. M.H.C. Realty Co.,
274 So. 2d 21
(Fla. 4 DCA 1973). . . . . . . 18
In re Carlyle,
242 B.R. 881
(Bankr. E.D.Va., 1999). . . . . . . 22
In re Foreclosure Cases,
521 F. Supp. 2D 650
(S.D. Oh. 2007). . . . . . . . 26
In Re Hayes,
393 B.R. 259
(Bankr. D. Mass. 2008). . . . . . . 21
In re Kang Jin Hwang,
396 B.R. 757
(Bankr.C.D.Cal., 2008). . . . . . . 22
In re Mitchell,
Case No. BK-S-07-16226-LBR
(Bankr.Nev. 3/31/2009). . . . . . . 25, 27
In re Sheridan,
Case No. 08-20381-TLM
(Bankr.Idaho, 2009). . . . . . . 28
4
In re Vargas,
396 B.R. 511
(Bankr.C.D.Cal., 2008). . . . . . . 28
In re Wilhelm,
Case No. 08-20577-TLM
(Bankr.Idaho, 2009). . . . . . . 22
Krol v. City of Orlando,
778 So. 2d 490, 492
(Fla. 5th DCA 2001). . . . . . . 16
Landmark National Bank v. Kesler,
216 P.3D 158
(Kansas, 2009). . . . . . . . 31
LaSalle Bank NA v. Lamy,
824 N.Y.S.2d 769
(N.Y. Supp. 2006).. . . . . . . 27
Major League Baseball v.Morsani,
790 So. 2d 1071
(Fla. 2001). . . . . . . . . 16
Mellor v. Goldberg,
658 So. 2d 1162
(Fla. 2 DCA 1995). . . . . . . 18
Margiewicz v. Terco Prop.,
441 So. 2d 1124
(Fla. 3 DCA 1983). . . . . . . 18
Mortgage Electronic Registration System, Inc.
v. Southwest Homes of Arkansas,
08-1299 (Ark. 3/19/2009) (Ark., 2009). . . . 31, 33
5
Miami Mtge. & Guar. Co. v. Drawdy,
127 So. 323
(Fla. 1930). . . . . . . . . 23
Pepe v. Shepherd,
422 So. 2d 910
(Fla. 3 DCA 1982). . . . . . . 18
Rollins v. Alvarez,
792 So. 2d 695
(Fla. 5th DCA 2001). . . . . . . 16
Scott v. Taylor,
58 So. 30
(Fla. 1912). . . . . . . . . 18
Sobel v. Mutual Dev. Inc.,
313 So. 2d 77
(Fla. 1 DCA 1975). . . . . . . 18, 24
So. Colonial Mtge. Co. v. Medeiros,
347 So. 2d 736
(Fla. 4 DCA 1977). . . . . . . 23
Stuyvesant Corp. v. Stahl,
62 So.2d 18, 20
(Fla., 1952). . . . . . . . . 32
Tayton v. American Nat’l Bank,
57 So. 678
(Fla. 1912). . . . . . . . . 18
Thomas v. Hartman,
553 So. 2d 1256
(Fla. 5 DCA 1989). . . . . . . 18
6
Vance v. Fields,
172 So. 2d 613
(Fla. 1 DCA 1965). . . . . . . 24
Volusia County v.
Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126
(Fla. 2000). . . . . . . . . 16
Young v. Victory,
150 So. 624
(Fla. 1933). . . . . . . . . 18
TABLE OF STATUTES
§ 673.1031(1)(a), Fla. Stat.(2009). . . . . 12
§ 673.1031(1)(c), Fla. Stat.(2009). . . . . 12
§ 673.1031(1)(e), Fla. Stat.(2009). . . . . 12
§ 673.1041(1), Fla. Stat.(2009). . . . . . 19
§ 673.1041(2), Fla. Stat.(2009). . . . . . 19
§ 673.1041(5), Fla. Stat. (2009). . . . . 12, 19
§ 673.1051(1), Fla. Stat.(2009). . . . . . 19
§ 673.1051(3), Fla. Stat.(2009). . . . . . 19
§ 673.1091(2), Fla. Stat.(2009). . . . . . 19, 21
§ 673.1101(1), Fla. Stat.(2009). . . . . . 19
§ 673.2011(2), Fla. Stat.(2009). . . . . . 21, 25
§ 673.2014(1), Fla. Stat.(2009). . . . . . 21
7
§ 673.2031(1), Fla. Stat.(2009). . . . . . 20
§ 673.2031(3), Fla. Stat.(2009). . . . . . 21, 22, 25
§ 673.2041(1), Fla. Stat.(2009). . . . . . 12
§ 673.3011, Fla. Stat.(2009). . . . . . 19
§ 673.4121, Fla. Stat.(2009). . . . . . 21
§ 673.4151, Fla. Stat.(2009). . . . . . 21
§ 673, et. seq., , Fla. Stat.(2009). . . . . 19
TABLE OF SECONDARY SOURCES
Christopher L. Peterson, Subprime Mortgage Market
Turmoil: Examining the Role of Securitization,

http://banking.senate.gov/public/index.

cfm?FuseAction=Files.View&FileStore_id=
4f40e1b9-ec5b-4752-ba8f-0c14afc44884. . . . 29
MERS, State-by-State, MERS Recommended
Foreclosure Procedures, (2002), www.mersinc.org
/filedownload.aspx?id=176&table=ProductFile. . . 26
Richard R. Powell,
POWELL ON REAL
PROPERTY § 37.27[2] (2000). . . . . . 25
R. K. Arnold, Yes, There is Life on Mers,
Probate & Property, (Aug., 1997),

http://www.abanet.org/genpractice

/magazine/1998/spring-bos/arnold.html). . . . 30
8
STATEMENT OF THE CASE AND FACTS
This appeal is taken from the Circuit Court’s decision to render Summary
Final Judgment against the Appellant. The Appellate Court of Florida has
jurisdiction to consider the issues raised in this appeal under authority of the
Florida Rules of Appellate Procedure, Rule 9.130 et seq.
The nature of the case below was Appellee’s Complaint to foreclose the
residential real property owned and occupied by the Appellant, Gregory Taylor.
(R. I/2) Appellant’s First Amended Answer challenged Appellee’s standing in
affirmative defenses and an incorporated Motion to Dismiss. (R. I/111-112, 117,
118-119, 121-124)
On October 9, 2009, a hearing on the Appellee’s Motion for Summary Final
Judgment was held. (R. I/166) The Appellee offered in evidence the promissory
note, the mortgage instrument and an assignment of mortgage. (R. I/62-87)
Appellant’s Response in Opposition to Appellee’s Motion for Summary Final
Judgment (which was also identified as a cross-motion for summary judgment)
stipulated that this evidence was not in dispute. Appellant contended that the
dispute was as to what that evidence actually proved – that being that Appellee was
not entitled to enforce the promissory note against Appellant.1 (R. 174-175) This
1 The clerk’s Index to Record on Appeal has this document as being filed
subsequent to the Summary Final Judgment of Foreclosure. That is incorrect as
9
argument in the Appellant’s Response in Opposition to the Motion for Summary
Final Judgment was not novel. That document referenced that this argument had
been previously raised in the Motion to Dismiss which was incorporated within the
First Amended Answer. (R. 175) On October 9, 2009, Judge Silverman granted
Summary Final Judgment of Foreclosure in Appellee’s favor. (R. 166-172)
Appellee made the following three claims in it’s Complaint: 1) “On or about
December 21, 2005, a promissory note was executed and delivered in favor of
Plaintiff, or Plaintiff’s assignor, in the original principal amount of $168,000.00.”
(R. I/2, para. 2 of complaint); 2) “The Plaintiff is the present owner and
constructive holder of the promissory note and Mortgage.” (R. I/2, para. 2 of
complaint); and, 3) “The above-described Note and Mortgage were assigned to
Plaintiff. The assignment is attached as Exhibit “C”.” (R. I/3, para. 3 of complaint)
On November 26, 2008, Appellant filed an Answer which substantially
denied the foreclosure allegations. (R. I/49-50) On December 9, 2008, Appellee
filed a Motion for Summary Final Judgment. (R. I/51) In support of the Motion
for Summary Final Judgment, the Appellee relied solely upon the promissory note,
the mortgage instrument and the assignment of mortgage to support its’ claim that:
the file stamp on the document indicates it was filed at 8:27 a.m. on October 9,
2009. (R. I/174) This was prior to the hearing on the motion which was noticed
as set for 8:45 a.m. on October 9, 2009. (R. I/149)
10
The Note and Mortgage are in default. Moreover, Plaintiff owns and
holds the Note and Mortgage and is entitled to recover its principal,
interest, late charges, costs, attorney’s fees, and other expenses, all of
which are more fully set forth in the supporting affidavits to be filed
with the court.
(R. I/52, para. 6)
On February 23, 2009, the Appellee filed the original promissory note,
mortgage instrument and the assignment of mortgage. (R. I/62-87) The
promissory note states:
1. BORROWER’S PROMISE TO PAY
In return for a loan that I have received, I promise to pay U.S. $168,000.00
(this amount is called “principal”), plus interest, to the order of the Lender.
The Lender is FIRST FRANKLIN A DIVISION OF NAT. CITY BANK OF
IN. I understand that the Lender may transfer this Note. The Lender or
anyone who takes this Note by transfer and who is entitled to receive
payments under this Note is called the “Note Holder”.
(R. I/63)
Sections 7 and 9 of the promissory note provide that payments are due to the
Lender until the Lender transfers the note, at which time payments shall be made to
the “Note Holder”, who may enforce its rights under the note. (R. I/65) The
promissory note was never transferred, as evidenced by the lack of an indorsement
on the promissory note. (R. I/66-67)
Though the Appellee is Deutsche Bank National Trust Company, the
promissory note is payable to a different person who is specifically identified in
the promissory note as “First Franklin A Division of Nat. City Bank of IN”
11
(hereafter, “First Franklin”). The promissory note was not indorsed by anyone,
including First Franklin.2 (R. I/66) Additionally, the promissory note did not carry
an allonge.3
The mortgage instrument provides that Mortgage Electronic Registration
Systems, Inc. “MERS” is the mortgagee and that it is a separate corporation that is
acting solely as a nominee for the Lender and Lender’s successors and assigns. (R.
I/68, para. (C) and (D) ) The mortgage instrument does not identify MERS as a
2 Florida Statutes section 673.2041 (1) provides that the term “indorsement”
means a signature, other than that of a signer as maker, drawer, or acceptor, that
alone or accompanied by other words is made on an instrument for the purpose
of negotiating the instrument, restricting payment of the instrument, or incurring
indorser’s liability on the instrument. Appellant is the “maker” of the
promissory note pursuant to Florida Statutes section 673.1031(1)(e) which
provides that “Maker” means a person who signs or is identified in a note as a
person undertaking to pay.” The terms “drawer” and “acceptor’ do not apply in
this case as those terms only apply to a “draft” pursuant to Florida Statutes
section 673.1031(1)(a) & (c). Florida Statutes section 673.1041(5) provides
that “An instrument is a “note” if it is a promise and is a “draft” if it is an order.”
3 For the purpose of determining whether a signature is made on an
instrument, a paper affixed to the instrument is a part of the instrument. (§
673.2041(1), Fla. Stat. (2009)) “An allonge is a piece of paper annexed to a
negotiable instrument or promissory note, on which to write endorsements for
which there is no room on the instrument itself. Such must be so firmly affixed
thereto as to become a part thereof.” BLACK’S LAW DICTIONARY (6th
ed.1990). Florida’s Uniform Commercial Code does not specifically mention an
allonge, but notes that “[f]or the purpose of determining whether a signature is
made on an instrument, a paper affixed to the instrument is part of the instrument.”
§ 673.2041(1), Fla. Stat. (1995)). Booker v. Sarasota, Inc., 707 So.2d 886 (Fla.
App. 1 Dist., 1998)
12
payee. Instead, like the promissory note, the mortgage instrument names First
Franklin as the Lender/payee. (R. I/68, para. (E); also see R. I/70)
Appellee had not filed a reply to the Appellant’s Answer, so on June 1, 2009,
Appellant filed his First Amended Answer. (R. I/111) Appellee did not file an
objection to Appellant’s First Amended Answer. (See Index to Record for lack of
filing) In the First Amended Answer, Appellant:
1) denied that he delivered a promissory note in favor of the Appellee or
the Appellee’s assignors (R. I/110, para. 2);
2) denied that the promissory note was assigned by MERS to Appellee
(R. I/111, para. 3);
3) denied that the mortgage instrument was properly assigned to the
Appellee (R. I/111, para. 3);
4) denied that the promissory note and mortgage instrument are in
default with Appellee (R. I/111, para. 5); and,
5) denied that Appellee is owed any sum due and owing on the
promissory note and mortgage instrument (R. I/111, para. 6).
Appellant had admitted in his First Amended Answer that he is in control of
the subject property and that he resides at the property. (R. I/111, para. 12) And
though the Complaint neglected to specifically state that the Appellant had actually
borrowed money, the Appellant admitted in his Response in Opposition to the
Motion for Summary Final Judgment that he did execute a promissory note and
mortgage, but that someone other than the Appellee is entitled to enforce the
subject promissory note and mortgage against him and his property. (R. I/180)
13
Appellant made several affirmative defenses, the first and ninth of which
were to challenge the standing of the Appellee as not being an owner or holder of
the promissory note or an authorized agent for an identifiable owner or holder of
the promissory note. (R. I/111-112; 117)
The First Amended Answer also incorporated within it a Motion to Dismiss.
(R. I/119; 121-124)) The incorporated Motion to Dismiss challenged the
Appellee’s standing and stated the following:
i. The Plaintiff is clearly acting as a trustee in this action for an entity
not named in either the Mortgage or Note. (Complaint, Caption)
The Plaintiff claims that it is the present owner of the Promissory
Note and Mortgage, yet contrarily, it also claims that it is the
constructive holder of the promissory note and Mortgage.
(Complaint, par. 2) The Plaintiff claims that the Note and Mortgage
were both assigned to the Plaintiff and that the assignment is Exhibit
C to the Complaint. (Complaint, par. 3)
ii. Both the Mortgage and the Note state that payment shall be made to
Lender. (Complaint, Note, par. 1; Mortgage, p. 1)
iii. The assignment referenced in Exhibit C is an assignment by MERS of
the Mortgage to Plaintiff, it is not an assignment of the Note – there is
no assignment of the note in any of the Plaintiff’s documents.
(R. I/119)
The First Amended Answer’s incorporated Motion to Dismiss made the
following argument:
The Plaintiff alleges that it is all things – a trustee acting on behalf of
another entity who owns the Note and Mortgage, and that it is the owner of
the Note and Mortgage. The Mortgage provides that there can be multiple
14
owners of fractional interests of the Note and Mortgage. (Complaint,
Mortgage, par. 20) However, that is not what the Plaintiff alleges. The
Plaintiff alleges that there is only one owner of the Note and Mortgage – it
may be the Plaintiff, or it may be the beneficiary of a trust that the Plaintiff
is trustee of – we can’t possibly know because the Plaintiff pled it both
ways. The proof the Plaintiff provides of its ownership interest is
insignificant. The Plaintiff provides an assignment of the Mortgage but not
an assignment of the Note.
(R. I/123)
On October 9, 2009, at 8:27 a.m., which was prior to the hearing on the
Appellee’s Motion for Summary Final Judgment, the Appellant filed an opposition
to the Motion for Summary Final Judgment and Cross-Motion for Summary Final
Judgment. (R. I/174) In this document the Appellant stipulated that Appellee’s
evidence was authentic, uncontested and that there were no genuine issues of
material fact. (R. I/174-175 ) In the document, Appellant argued that there were
solely legal issues pending before the Court, those being: 1) that because the
promissory note was made payable to a specifically identified person who was not
the Plaintiff or the Plaintiff’s principal, that before Appellee could enforce it
against Appellant, the promissory note had to carry either an indorsement or an
allonge making it payable to the Appellant or to Appellant’s principal; (R. I/175)
and, 2) that MERS could not pass an enforceable interest to Appellee. (R. I/177)
The Appellee’s Motion for Summary Final Judgment was heard on October
9, 2009, at 8:45 a.m. (R. I/149; R. I/166) After oral argument in the absence of a
15
court reporter, the Circuit court granted Summary Final Judgment to the Appellee
after argument. (R. I/166)
STANDARD ON APPEAL
The standard of review for summary judgment is de novo. Major League
Baseball v.Morsani, 790 So. 2d 1071 (Fla. 2001); Rollins v. Alvarez, 792 So. 2d
695 (Fla. 5th DCA 2001); Volusia County v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126 (Fla. 2000). In reviewing a summary judgment, the Court must
determine whether there is any “genuine issue as to any material fact” and whether
“the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P.
1.510(c).
Issues of fact are “genuine” only if a reasonable jury, considering the
evidence presented, could find for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). Generally, “[t]he party moving for
summary judgment has the burden to prove conclusively the nonexistence of any
genuine issue of material fact.” City of Cocoa v. Leffler, 762 So. 2d 1052,1055
(Fla. 5thDCA 2000). The evidence contained in the record, including supporting
affidavits, must be considered in the light most favorable to the non-moving party,
and if the slightest doubt exists, summary judgment must be reversed. Krol v. City
of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001).
16
SUMMARY OF THE ARGUMENTS
Ownership of the promissory note and the mortgage instrument were
bifurcated. The unindorsed promissory note was not a bearer instrument. Rather,
it was made payable to the lender who is a specifically identified person – First
Franklin – and the mortgage instrument named MERS as the mortgagee, solely as
a nominee. Neither the promissory note nor the mortgage instrument granted
MERS an interest in the promissory note, instead, First Franklin retained
ownership in the promissory note.
The right to foreclose is dependent upon there being an enforceable
promissory note. An assignment of mortgage from MERS to Appellee granted
Appellee all of the interests that MERS had in the promissory note and the
mortgage instrument. By the assignment of mortgage, MERS could not convey a
greater interest to Appellee than that which it already held. Since MERS had no
enforceable interest in the promissory note, it conveyed no enforceable interest in
the promissory note to the Appellee. Even if MERS was an agent of First Franklin
with authority to enforce the promissory note, no evidence of such authority was
presented to the Circuit Court. Without an interest in the promissory note, or
without evidence of authority to enforce the promissory note against Appellant,
Appellee had no standing to foreclose and summary judgment was improper.
17
ARGUMENTS
FIRST ARGUMENT
THE APPELLEE PRESENTED EVIDENCE THAT
IT WAS NOT ENTITLED TO ENFORCE THE
PROMISSORY NOTE IN QUESTION
Every mortgage loan is composed of two documents – the note instrument
and the mortgage instrument. No matter how much the mortgage instrument is
acclaimed as the basis of the agreement, the note instrument is the essence of the
debt. Sobel v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA, 1975); Pepe v.
Shepherd, 422 So. 2d 910 (Fla. 3 DCA 1982); Margiewicz v. Terco Prop., 441 So.
2d 1124 (Fla. 3 DCA 1983).
The promissory note is evidence of the primary mortgage obligation. The
mortgage is only a mere incident to the note. Brown v. Snell, 6 Fla. 741 (1856);
Tayton v. American Nat’l Bank, 57 So. 678 (Fla. 1912); Scott v. Taylor, 58 So. 30
(Fla. 1912); Young v. Victory, 150 So. 624 (Fla. 1933); Thomas v. Hartman, 553
So. 2d 1256 (Fla. 5 DCA 1989). The mortgage instrument is only the security for
the indebtedness. Grier v. M.H.C. Realty Co, 274 So. 2d 21 (Fla. 4 DCA 1973);
Mellor v. Goldberg, 658 So. 2d 1162 (Fla. 2 DCA 1995); Century Group Inc. v.
Premier Fin. Services East L. P . , 724 So. 2d 661 (Fla. 2 DCA 1999)
18
On December 21, 2005, Appellant issued a promissory note. (§673.1051(1),
Fla. Stat. (2009), and § 673.1051(3), Fla. Stat. (2009)) The subject promissory
note is a “negotiable instrument” because it is an unconditional promise to pay a
fixed amount of money and it was payable to the order of First Franklin at the time
it was first issued. (§ 673.1041(1), Fla. Stat. (2009); § 673.1041(2), Fla. Stat.
(2009); § 673.1041(5),Fla. Stat. (2009); and § 673.1091(2), Fla. Stat. (2009)) The
promissory note clearly states the intent of the Appellant to make the Lender, First
Franklin, the Payee. (§ 673.1101(1), Fla. Stat. (2009)) That’s because the
document specifically identifies First Franklin as the Payee.4
Florida law defines those who are entitled to enforce a negotiable instrument
as either a “holder” of the instrument, a non-holder in possession who has the
rights of a holder or a person not in possession who is entitled to enforce it as a lost
instrument. (§ 673.3011, Fla. Stat. (2009)) Florida law goes so far as to permit a
person to be entitled to enforce an instrument even though that person is not the
owner of the instrument or is in wrongful possession of the instrument.
However, the subject promissory note is more restrictive in its’
4 In a mortgage loan, there is only one negotiable instrument, and that is the
promissory note. Neither the mortgage instrument nor the assignment of mortgage
are “negotiable instruments” as the term “instrument” as used in § 673, Fla. Stat.
(2009), et. seq., only means a “negotiable instrument”. (§ 673.1041(2), FLA.
STAT. (2009))
19
characterization of who may enforce it because the subject promissory note and the
subject mortgage instrument together were designed to have been sold in fractional
interests on the secondary market. The subject mortgage instrument provides
“The Note or a partial interest in the Note (together with this Security Instrument)
can be sold one or more times without prior notice to Borrower.” (R. I/77, para.
20)
Having multiple parties attempting to enforce a single promissory note could
destroy the entire secondary market system in mortgages. In order to prevent that
from happening, the subject promissory note does not make a mere possessor of it
a “holder”, rather, one becomes a “holder” of the subject promissory note only
upon “transfer” of the promissory note along with the right to enforce it. The
subject promissory note provides “The Lender or anyone who takes this Note by
transfer and who is entitled to receive payments under this Note is called the “Note
Holder”. (R. I/63, para. 1) This is consistent with Florida Statutes § 673.2031(1)
which provides that an instrument is transferred when it is delivered by a person
other than its issuer for the purpose of giving to the person receiving delivery the
right to enforce the instrument.
At the hearing on the Appellee’s Motion for Summary Final Judgment, there
was no evidence presented as to whether First Franklin actually delivered the
20
subject promissory note either to MERS or to the Appellee. That evidence was
necessary to demonstrate that First Franklin transferred the promissory note with
the purpose of giving the Appellee the right to enforce it. In the case of In Re
Hayes, 393 B.R. 259, 266-268 (Bankr. D. Mass. 2008), the movant seeking relief
from stay failed to show that it ever had any interest in the note at issue. In that
case the court found the movant lacked standing altogether because it failed to
show that the note was ever transferred to it, and thus had no rights of its own to
assert. Having a note in one’s possession is not synonymous with “transfer”.
The obligation of an issuer of a note owes that obligation to a person entitled
to enforce the instrument or to an indorser who paid the instrument under Florida
Statutes § 673.4151. (§ 673.4121, Fla. Stat. (2009)) A transfer of possession of a
bearer instrument is sufficient to transfer enforceable rights in the instrument. (§
673.2011(2), Fla. Stat. (2009)) That stands in stark contrast to a promise or order
that is payable to order, which means that it is payable to the identified person. ( §
673.1091(2), Fla. Stat. (2009)) In the case of an instrument payable to a
specifically identified person, transfer of possession of the instrument along with
an indorsement is necessary.5 (§ 673.2011(2), Fla. Stat. (2009) & § 673.2031(3),
Fla. Stat. (2009)) Without that necessary indorsement, the transferee still receives
5 An “indorsement” means a signature, other than that of a signer as maker,
drawer, or acceptor, made on an instrument for the purpose of negotiating the
instrument. (§ 673.2014(1), Fla. Stat. (2009))
21
an enforceable interest – however, it’s not enforceable against the issuer, rather, the
enforceable interest is the specifically enforceable right to the unqualified
indorsement of the transferor.6 (§ 673.2031(3), Fla. Stat. (2009)) Appellant
admitted in his Response in Opposition to the Motion for Summary Final
Judgment that he executed a promissory note, which someone is entitled to enforce
against him – just not the Appellee. (R. I/180)
In the case at hand, if the subject promissory note were delivered to the
Appellee by First Franklin with the purpose of giving Appellee rights to enforce it
against the Appellant, before Appellee could enforce the promissory note against
the Appellant it had to either obtain an indorsement from First Franklin or get an
Order from a court of competent jurisdiction enforcing it’s right to the unqualified
indorsement of First Franklin – the end result either way is that the promissory
note still must be indorsed. Absent that evidence, there is a material factual
dispute.
6 Addressing the same issue, the Court in the case of In re Kang Jin Hwang,
396 B.R. 757, 763 (Bankr.C.D.Cal., 2008) stated “The transfer of a negotiable
instrument has an additional requirement: the transferor must indorse the
instrument to make it payable to the transferee.” In the case of In re Wilhelm,
Case No. 08-20577-TLM (Bankr.Idaho, 2009) the Court recognized that if the
note instrument, by its terms, is not payable to the transferee, then before the
transferee can enforce it the transferee must account for possession of the
unindorsed instrument by proving the transaction through which the transferee
acquired it. (At page 18) The Court in In re Carlyle, 242 B.R. 881 (Bankr.
E.D.Va., 1999) came to the same conclusion at page 887 of the Opinion.
22
From the evidence admitted in Court, it is impossible to know whether
Appellee was ever a “holder” of the promissory note – as that term is defined by
the subject promissory note. Additionally, since this promissory note was payable
to a specifically identifiable person, before it could be enforced against the
Appellant it had to be indorsed. There was no evidence presented of an
indorsement, either by First Franklin or on Order of a court. Therefore, the
evidence presented proved that Appellee was not entitled to enforce the promissory
note against Appellant.
SECOND ARGUMENT
MERS DID NOT PASS AN ENFORCEABLE INTEREST
IN THE PROMISSORY NOTE TO APPELLEE
The note is the instrument of concern in all assignment situations. There is
an old maxim “the mortgage follows the note”. Evins v. Gainsville Nat’l Bank, 85
So. 659 (Fla. 1920); Case v. Smith, 200 So. 917 (Fla. 1941) The note is evidence
of the primary mortgage obligations or the debt. The assignment of the note
carries with it the mortgage and its rights, even though the mortgage instrument
has not been assigned either orally or in writing. Collins v. Briggs, 123 So. 833
(Fla. 1929); Miami Mtge. & Guar. Co. v. Drawdy, 127 So. 323 (Fla. 1930); So.
Colonial Mtge. Co. v. Medeiros, 347 So. 2d 736 (Fla. 4 DCA 1977)
23
The mortgage, as evidenced by the mortgage instrument, is only a mere
incident to the debt. Therefore, the mortgage instrument is of lesser significance.
Because the assignment of the note is an imperative act as to the transferring of the
mortgagee’s right, the assignment of the mortgage instrument without the note is
an ineffective assignment. Vance v. Fields, 172 So. 2d 613 (Fla. 1 DCA 1965);
Sobel v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA 1975); Amacher v. Keel,
358 So. 2d 889 (Fla. 2 DCA 1975)
In the instant case, the assignment of mortgage claims that it assigns the
beneficial interest in both the note instrument and the mortgage instrument to
Appellee. However, the note instrument was bifurcated from the mortgage
instrument and MERS did not have an interest in the Note that it could assign.
MERS act of assigning the mortgage instrument was invalid as it held no beneficial
interest in the mortgage instrument for two reasons: 1) a security instrument, apart
from the promissory note giving rise to the debt has no value because there is no
debt by which it secures payment; and 2) MERS had no beneficial interest in the
mortgage instrument that it could assign.
In Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271, 274, 21 L.Ed. 313
(1872), the U.S. Supreme Court stated “The note and mortgage are inseparable; the
24
former as essential, the latter as an incident. An assignment of the note carries the
mortgage with it, while an assignment of the latter alone is a nullity.”
“Where the mortgagee has ‘transferred’ only the mortgage, the transaction is
a nullity and his ‘assignee,’ having received no interest in the underlying debt or
obligation, has a worthless piece of paper.” (4 RICHARD R. POWELL, POWELL
ON REAL PROPERTY, § 37.27[2] (2000); In re Mitchell, Case No. BK-S-07-
16226-LBR (Bankr.Nev. 3/31/2009)(At page 12))
As previously stated in Argument 1, the Uniform Commercial Code makes a
distinction between a promissory note that is a bearer instrument and one that is
payable to a specifically identified person – the former not requiring an
indorsement to be enforceable, the latter requiring an indorsement to be
enforceable. (§ 673.2011(2), Fla. Stat. (2009); § 673.2031(3), Fla. Stat. (2009))
Additionally, the subject mortgage instrument states that it can only be
transferred with the sale of the note – and not the other way around where the sale
of the mortgage instrument would include the note. (R. I/77, para. 20) The subject
mortgage instrument provides “The Note or a partial interest in the Note (together
with this Security Instrument) can be sold one or more times without prior notice
to Borrower.” (R. I/77, para. 20) In this case, the only relevant transfer that could
occur is a transfer of the promissory note, which would include a transfer of the
25
mortgage instrument if ownership of that instrument were not bifurcated from the
ownership of the promissory note. So an assignment of the mortgage instrument
from MERS to Appellee would not transfer the promissory note to Appellee.
Appellant’s Opposition to the Appellee’s Motion for Summary Final
Judgment included an affidavit of the contents of the MERS website. The
Opposition stated in relevant part:
MERS has nothing to transfer by an assignment. MERS own website listed
“MERS Recommended Foreclosure Procedures for FLORIDA”.7 In this
document MERS states that it is not the beneficial owner of the promissory
note. This document states:
MERS stands in the same shoes as the servicer to the extent that it is
not the beneficial owner of the promissory note. An investor,
typically a secondary market investor, will be the ultimate owner of
the note. (fn 8)
Foot Note 8:
Even though the servicer has physical custody of the note, custom in
the mortgage industry is that the investor (Fannie Mae, Freddie Mac,
Ginnie Mae or a private investor) owns the beneficial rights to the
promissory note.
(R. I/177-178)
In the consolidated cases of In re Foreclosure Cases, 521 F. Supp. 2D 650,
653 (S.D. Oh. 2007), a standing challenge was made and the Court found that there
was no evidence of record that New Century ever assigned to MERS the
7 www.mersinc.org/filedownload.aspx?id=176&table=ProductFile
26
promissory note or otherwise gave MERS the authority to assign the note.
Beginning with this case, courts around the country started to recognize that MERS
had no ownership in the notes and could not transfer an interest in a mortgage
upon which foreclosure could be based.
In LaSalle Bank NA v. Lamy, 824 N.Y.S.2d 769 (N.Y. Supp. 2006), the
Court denied a foreclosure action by an assignee of MERS on the grounds that
MERS itself had no ownership interest in the underlying note and mortgage.
In the case of In re Mitchell, Case No. BK-S-07-16226-LBR (Bankr.Nev.,
2009), the Court stated “In order to foreclose, MERS must establish there has been
a sufficient transfer of both the note and deed of trust, or that it has authority under
state law to act for the note’s holder.” (At page 9) The Court found that MERS has
no ownership interest in the promissory note. The Court found that though MERS
attempts to make it appear as though it is a beneficiary of the mortgage, it in fact is
not a beneficiary. The Court stated “But it is obvious from the MERS’ “Terms and
Conditions” that MERS is not a beneficiary as it has no rights whatsoever to any
payments, to any servicing rights, or to any of the properties secured by the loans.
To reverse an old adage, if it doesn’t walk like a duck, talk like a duck, and quack
like a duck, then it’s not a duck.” (At page 7) MERS Terms and Conditions say
this:
27
MERS shall serve as mortgagee of record with respect to all such mortgage
loans solely as a nominee, in an administrative capacity, for the beneficial
owner or owners thereof from time to time. MERS shall have no rights
whatsoever to any payments made on account of such mortgage loans, to
any servicing rights related to such mortgage loans, or to any mortgaged
properties securing such mortgage loans. MERS agrees not to assert any
rights (other than rights specified in the Governing Documents) with respect
to such mortgage loans or mortgaged properties. References herein to
“mortgage(s)” and “mortgagee of record” shall include deed(s) of trust
and beneficiary under a deed of trust and any other form of security
instrument under applicable state law.
In the case of In re Vargas, 396 B.R. 511, 520 (Bankr.C.D.Cal., 2008) , the
Court stated:
MERS is not in the business of holding promissory notes. (fn 10: MERS,
Inc. is an entity whose sole purpose is to act as mortgagee of record for
mortgage loans that are registered on the MERS System. This system is a
national electronic registry of mortgage loans, itself owned and operated by
MERS, Inc.’s parent company, MERSCORP, Inc.)
In the case of In re Sheridan, Case No. 08-20381-TLM (Bankr.Idaho, 2009)
MERS moved for relief from the stay. The Court stated that MERS “Counsel
conceded that MERS is not an economic “beneficiary” under the Deed of Trust. It
is owed and will collect no money from Debtors under the Note, nor will it realize
the value of the Property through foreclosure of the Deed of Trust in the event the
Note is not paid.” The Court stated “Further, the Deed of Trust’s designation of
MERS as “beneficiary” is coupled with an explanation that “MERS is . . . acting
solely as nominee for Lender and Lender’s successors and assigns.” The Court
28
stated “Even if the proposition is accepted that the Deed of Trust provisions give
MERS the ability to act as an agent (“nominee”) for another, it acts not on its own
account. Its capacity is representative.”
In Landmark National Bank v. Kesler, 216 P.3D 158 (Kansas, 2009), the
Kansas Supreme Court extensively analyzed the position of MERS in relation to
the facts in that case and other non-binding court cases and concluded that MERS
is only a digital mortgage tracking service. (At page 168) The Court recited that
MERS never held the promissory note, did not own the mortgage instrument
(though the documents identified it as “mortgagee”), that it did not lend money, did
not extend credit, is not owed any money by the mortgage debtors, did not receive
any payments from the borrower, suffered no direct, ascertainable monetary loss as
a consequence of the litigation and consequently, has no constitutionally protected
interest in the mortgage loan.
Appellant’s Opposition to the Appellee’s Motion for Summary Final
Judgment included reference to professor Christopher L. Peterson’s writings on
MERS and the secondary market as a source for the court to understand what
MERS is and how it operates. (R. I/179) Christopher L. Peterson, Associate
Professor of Law, University of Florida, testified at a hearing before the U.S.
29
Senate Committee on Banking, Housing, and Urban Affairs Subcommittee on
Securities, Insurance, and Investment and stated:8
MERS is merely a document custodian. . . . The system itself
electronically tracks ownership and servicing rights of mortgages. . . .
The parties obtain two principal benefits from attempting to useMERS as a
“mortgagee of record in nominee capacity.” First, under state secured credit
laws, when a mortgage is assigned, the assignee must record the assignment
with the county recording office, or risk losing priority vis-à-vis other
creditors, buyers, or lienors. Most counties charge a fee to record the
assignment, and use these fees to cover the cost of maintaining the real
property records. Some counties also use recording fees to fund their court
systems, legal aid organizations, or schools. In this respect, MERS’ role in
acting as a mortgagee of record in nominee capacity is simply a tax evasion
tool. By paying MERS a fee, the parties to a securitization lower their
operating costs. The second advantage MERS offers its customers comes
later when homeowners fall behind on their monthly payments. In addition
to its document custodial role, and its tax evasive role, MERS also
frequently attempts to bring home foreclosure proceedings in its own name.
This eliminates the need for the trust—which actually owns the loan—to
foreclose in its own name, or to reassign the loan to a servicer or the
originator to bring the foreclosure.
R.K. Arnold, Senior Vice President, General Counsel and Secretary of
Mortgage Electronic Registration Systems, Inc., stated:
MERS® will act as mortgagee of record for any mortgage loan registered
on the computer system MERS® maintains, called the MERS® System. It
will then track servicing rights and beneficial ownership interests in those
loans and provide a platform for mortgage servicing rights to be traded
electronically among its members without the need to record a mortgage
8 Subprime Mortgage Market Turmoil: Examining the Role of Securitization,

http://banking.senate.gov/public/index.cfm?

FuseAction=Files.View&FileStore_id=4f40e1b9-ec5b-4752-ba8f-
0c14afc44884 . (At page 6 -8)
30
assignment in the public land records each time. . . . Members pay annual
fees to belong and transaction fees to execute electronic transactions on the
MERS® System. . . . A mortgage note holder can sell a mortgage note to
another in what has become a gigantic secondary market. . . . For these
servicing companies to perform their duties satisfactorily, the note and
mortgage were bifurcated. The investor or its designee held the note and
named the servicing company as mortgagee, a structure that became
standard. . . . When a mortgage loan is registered on the MERS® System, it
receives a mortgage identification number (MIN). The borrower executes a
traditional paper mortgage naming the lender as mortgagee, and the lender
executes an assignment of the mortgage to MERS®. Both documents are
executed according to state law and recorded in the public land records,
making MERS® the mortgagee of record. From that point on, no additional
mortgage assignments will be recorded because MERS® will remain the
mortgagee of record throughout the life of the loan. . . . MERS® keeps track
of the new servicer electronically and acts as nominee for the servicing
companies and investors. Because MERS® remains the mortgagee of
record in the public land records throughout the life of a loan, it eliminates
the need to record later assignments in the public land records. Usually,
legal title to the property is not affected again until the loan is paid and the
mortgage is released.
(R.K. Arnold, Yes, There is Life on MERS, Prob.& Prop., Aug. 1997, at p.16;

http://www.abanet.org/genpractice/magazine/1998/spring-bos/arnold.html)

Courts around this country are clearly recognizing that MERS is not an
owner of the promissory note and that it is also only a mortgagee in name alone
and has no beneficial interest in the mortgage instrument. Landmark National Bank
v. Kesler, 216 P.3D 158 (Kansas, 2009); Mortgage Electronic Registration
System, Inc. v. Southwest Homes of Arkansas, 08-1299 (Ark. 3/19/2009) (Ark.,
2009) MERS own website says as much. Therefore, the assignment of
mortgage from MERS to Appellee could not transfer an interest in the promissory
31
note; it could not even transfer an enforceable interest in the mortgage instrument.
One hundred and thirty-eight years ago, the U.S. Supreme Court recognized
that the mortgage instrument is inseparable from the promissory note. Carpenter v.
Longan, 16 Wall. 271, 83 U.S. 271, 21 L.Ed. 313 (1872) That was necessary to
ensure that title to property could be deraigned. However, MERS is a product of
the past two decades and was designed to privatize recorded mortgages in order to
avoid the payment of taxes upon the recording of assignments of mortgage. The
design of bifurcating the mortgage instrument from the promissory note is not
based on law and it impairs the historical ability to deraign title. The logical
conclusion of bifurcating the mortgage instrument to MERS is that it renders a
foreclosure impossible as the promissory note is no longer secured by that
mortgage instrument. What they have sown, they should reap.
In Stuyvesant Corp. v. Stahl, 62 So.2d 18, 20 (Fla., 1952), the Florida
Supreme Court stated:
The rule is settled in this State that a principal is bound by the acts of his
agent. The authority of the agent may be real or it may be apparent and the
public may rely on either unless in the case of apparent authority the
circumstances are such as to put one on inquiry. The agent’s authority may
be conferred by writing, by parol, or it may be inferred from the related facts
of the case. (Cites omitted)
There was no evidence presented that MERS had any authority to act as an
agent for First Franklin. The Arkansas Supreme Court came to the same
32
conclusion in Mortgage Electronic Registration System, Inc. v. Southwest Homes
of Arkansas, 08-1299 (Ark. 3/19/2009) (Ark., 2009)(At page 7) By all
appearances, it seems contrary to the interests of First Franklin that the Appellee
would attempt to collect on a promissory note that was payable to First Franklin.
CONCLUSION
WHEREFORE, the Circuit Court’s judgment should be set aside and the
matter remanded.
Respectfully Submitted,
_________________________
George M. Gingo, FBN 879533
Counsel for Appellant
P.O. Box 838
Mims, FL 32754
321-264-9624 Office
321-383-1105 Fax
ggingo@yahoo.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
served by U.S. Mail on Jonathan J.A. Paul, Butler & Hosch, P.A., 3185 S. Conway
Road, Suite E, Orlando, Florida 32812 on this 15th day of January, 2010.
___________________________
George M. Gingo, FBN 879533
33
CERTIFICATE OF FONT COMPLIANCE
I certify that the lettering in this brief is Times New Roman 14-point font
and complies with the font requirements of the Florida Rule of Appellate
Procedure 9.210(a)(2).
By: _________________________
George M. Gingo, FBN 879533
5-27-10-first-franklin-appeal-george-gingo


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Categories : I Have a Plan


non-judicial sale is NOT an available election for a securitized loan

2 06 2010

Posted 6 days ago by Neil Garfield on Livinglies’s Weblog
NON-JUDICIAL STATES: THE DIFFERENCE BETWEEN FORECLOSURE AND SALE:

FORECLOSURE is a judicial process herein the “lender” files a lawsuit seeking to (a) enforce the note and get a judgment in the amount owed to them (b) asking the court to order the sale of the property to satisfy the Judgment. If the sale price is lower than the Judgment, then they will ask for a deficiency Judgment and the Judge will enter that Judgment. If the proceeds of sale is over the amount of the judgment, the borrower is entitled to the overage. Of course they usually tack on a number of fees and costs that may or may not be allowable. It is very rare that there is an overage. THE POINT IS that when they sue to foreclose they must make allegations which state a cause of action for enforcement of the note and for an order setting a date for sale. Those allegations include a description of the transaction with copies attached, and a claim of non-payment, together with allegations that the payments are owed to the Plaintiff BECAUSE they would suffer financial damage as a result of the non-payment. IN THE PROOF of the case the Plaintiff would be required to prove each and EVERY element of their claim which means proof that each allegation they made and each exhibit they rely upon is proven with live witnesses who are competent — i.e., they take an oath, they have PERSONAL KNOWLEDGE (not what someone else told them),personal recall and the ability to communicate what they know. This applies to documents they wish to use as well. That is called authentication and foundation.

SALE: Means what it says. In non-judicial sale they just want to sell your property without showing any court that they can credibly make the necessary allegations for a judicial foreclosure and without showing the court proof of the allegations they would be required to make if they filed a judicial foreclosure. In a non-judicial state what they want is to SELL and what they don’t want is to foreclose. Keep in mind that every state that allows non-judicial sale treats the sale as private and NOT a judicial event by definition. In Arizona and many other states there is no election for non-judicial sale of commercial property because of the usual complexity of commercial transactions. THE POINT is that a securitized loan presents as much or more complexity than commercial real property loan transactions. Thus your argument might be that the non-judicial sale is NOT an available election for a securitized loan.

When you bring a lawsuit challenging the non-judicial sale, it would probably be a good idea to allege that the other party has ELECTED NON-JUDICIAL sale when the required elements of such an election do not exist. Your prima facie case is simply to establish that the borrower objects the sale, denies that they pretender lender has any right to sell the property, denies the default and that the securitization documents show a complexity far beyond the complexity of even highly complex commercial real estate transactions which the legislature has mandated be resolved ONLY by judicial foreclosure.

THEREFORE in my opinion I think in your argument you do NOT want to concede that they wish to foreclose. What they want to do is execute on the power of sale in the deed of trust WITHOUT going through the judicial foreclosure process as provided in State statutes. You must understand and argue that the opposition is seeking to go around normal legal process which requires a foreclosure lawsuit.

THAT would require them to make allegations about the obligation, note and mortgage that they cannot make (we are the lender, the defendant owes us money, we are the holder of the note, the note is payable to us, he hasn’t paid, the unpaid balance of the note is xxx etc.) and they would have to prove those allegations before you had to say anything. In addition they would be subject to discovery in which you could test their assertions before an evidentiary hearing. That is how lawsuits work.

The power of sale given to the trustee is a hail Mary pass over the requirements of due process. But it allows for you to object. The question which nobody has asked and nobody has answered, is on the burden of proof, once you object to the sale, why shouldn’t the would-be forecloser be required to plead and prove its case? If the court takes the position that in non-judicial states the private power of sale is to be treated as a judicial event, then that is a denial of due process required by Federal and state constitutions. The only reason it is allowed, is because it is private and “non-judicial.” The quirk comes in because in practice the homeowner must file suit. Usually the party filing suit must allege facts and prove a prima facie case before the burden shifts to the other side. So the Judge is looking at you to do that when you file to prevent the sale.

Legally, though, your case should be limited to proving that they are trying to sell your property, that you object, that you deny what would be the allegations in a judicial foreclosure and that you have meritorious defenses. That SHOULD trigger the requirement of re-orienting the parties and making the would-be forecloser file a complaint (lawsuit) for foreclosure. Then the burden of proof would be properly aligned with the party seeking affirmative relief (i.e., the party who wants to enforce the deed of trust (mortgage), note and obligation) required to file the complaint with all the necessary elements of an action for foreclosure and attach the necessary exhibits. They don’t want to do that because they don’t have the exhibits and the note is not payable to them and they cannot actually prove standing (which is a jurisdictional question). The problem is that a statute passed for judicial economy is now being used to force the burden of proof onto the borrower in the foreclosure of their own home. This is not being addressed yet but it will be addressed soon.


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Tags: stop foreclosure, Mortgage modification, mortgage meltdown, lis pendence, 2923.5, Predatory Lending, 2923.5 2923.6 2924 2932.5 Audit bankruptcy california California cram down Chapter 13 civil code 2923.5 civil code 2924 Countrywide Cram down Cramdown criminal acts eviction FCRA FDCPA Federal Jurisdi
Categories : Foreclosure, I Have a Plan, Lender Class action, Predatory Lending, stop foreclosure


Fannie Mae Policy Now Admits Loan Not Secured

2 06 2010

Posted 14 hours ago by Neil Garfield on Livinglies’s Weblog

29248253-Mers-May-Not-Foreclosure-for-Fannie-Mae

Editor’s Note: Their intention was to get MERS and servicers out of the foreclosure business. They now say that prior to foreclosure MERS must assign to the real party in interest.

Here’s their problem: As numerous Judges have pointed out, MERS specifically disclaims any interest in the obligation, note or mortgage. Even the language of the mortgage or Deed of Trust says MERS is mentioned in name only and that the Lender is somebody else.

These Judges who have considered the issue have come up with one conclusion, an assignment from a party with no right, title or interest has nothing to assign. The assignment may look good on its face but there still is the problem that nothing was assigned.

Here’s the other problem. If MERS was there in name only to permit transfers and other transactions off-record (contrary to state law) and if the original party named as “Lender” is no longer around, then what you have is a gap in the chain of custody and chain of title with respect to the creditor’s side of the loan. It is all off record which means, ipso facto that it is a question of fact as to whose loan it is. That means, ipso facto, that the presence of MERS makes it a judicial question which means that the non-judicial election is not available. They can’t do it.

So when you put this all together, you end up with the following inescapable conclusions:

* The naming of MERS as mortgagee in a mortgage deed or as beneficiary in a deed of trust is a nullity.
* MERS has no right, title or interest in any loan and even if it did, it disclaims any such interest on its own website.
* The lender might be the REAL beneficiary, but that is a question of fact so the non-judicial foreclosure option is not available.
* If the lender was not the creditor, it isn’t the lender because it had no right title or interest either, legally or equitably.
* Without a creditor named in the security instrument intended to secure the obligation, the security was never perfected.
* Without a creditor named in the security instrument intended to secure the obligation, the obligation is unsecured as to legal title.
* Since the only real creditor is the one who advanced the funds (the investor(s)), they can enforce the obligation by proxy or directly. Whether the note is actually evidence of the obligation and to what extent the terms of the note are enforceable is a question for the court to determine.
* The creditor only has a claim if they would suffer loss as a result of the indirect transaction with the borrower. If they or their agents have received payments from any source, those payments must be allocated to the loan account. The extent and measure of said allocation is a question of fact to be determined by the Court.
* Once established, the allocation will most likely be applied in the manner set forth in the note, to wit: (a) against payments due (b) against fees and (c) against principal, in that order.
* Once applied against payments, due the default vanishes unless the allocation is less than the amount due in payments.
* Once established, the allocation results in a fatal defect in the notice of default, the statements sent to the borrower, and the representations made in court. Thus at the very least they must vacate all foreclosure proceedings and start over again.
* If the allocation is less than the amount of payments due, then the investor(s) collectively have a claim for acceleration and to enforce the note — but they have no claim on the mortgage deed or deed of trust. By intentionally NOT naming parties who were known at the time of the transaction the security was split from the obligation. The obligation became unsecured.
* The investors MIGHT have a claim for equitable lien based upon the circumstances that BOTH the borrower and the investor were the victims of fraud.


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Tags: 2924, bankruptcy, Foreclosure, mortgage meltdown, Predatory Lending, stop foreclosure
Categories : Foreclosure, Loan Audit, bankruptcy, mortgage meltdown, pedatory lending, stop foreclosure


The Giant Pool of Money – How They Transferred the Wealth

2 06 2010

Posted 1 min ago by Foreclosure Fraud on Foreclosure Fraud – Fighting Foreclosure Fraud by Sharing the Knowledge

Random Repost. Blast from the Past. Going to start off each day with a random repost from the archives…

The Giant Pool of Money

“The problem was that even though housing prices were going through the roof, people weren’t making any more money. From 2000 to 2007, the median household income stayed flat. And so the more prices rose, the more tenuous the whole thing became. No matter how lax lending standards got, no matter how many exotic mortgage products were created to shoehorn people into homes they couldn’t possibly afford, no matter what the mortgage machine tried, the people just couldn’t swing it.

By late 2006, the average home cost nearly four times what the average family made. Historically it was between two and three times. And mortgage lenders noticed something that they’d almost never seen before. People would close on a house, sign all the mortgage papers, and then default on their very first payment. No loss of a job, no medical emergency, they were underwater before they even started. And although no one could really hear it, that was probably the moment when one of the biggest speculative bubbles in American history popped.

Strangely, the first people in the mortgage-backed security chain who noticed, were the ones near the top. The people on Wall Street, like Mike Francis. He can remember almost to the day”:

“It would be somewhere around Halloween of 2006. We started seeing our securities that were 6, 7, 8 months old start to perform poorly. We started to dig into the details. Wow, property values stopped increasing. Something is turning around bad here. What do we do?”


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Categories : Foreclosure


MERS and civil code 2932.5 and Bankruptcy code 547 here is how it comes together

26 05 2010

CA Civil Code 2932.5 – Assignment”Where a power to sell real property is
given to a mortgagee, or other encumbrancer, in an instrument intended
to secure the payment of money, the power is part of the security and
vests in any person who by assignment becomes entitled to payment of the
money secured by the instrument. The power of sale may be exercised by
the assignee if the assignment is duly acknowledged and recorded.”

Landmark vs Kesler – While this is a matter of first impression in
Kansas, other jurisdictions have issued opinions on similar and related
issues, and, while we do not consider those opinions binding in the
current litigation, we find them to be useful guideposts in our analysis
of the issues before us.”

“Black’s Law Dictionary defines a nominee as “[a] person designated to
act in place of another, usu. in a very limited way” and as “[a] party
who holds bare legal title for the benefit of others or who receives and
distributes funds for the benefit of others.” Black’s Law Dictionary
1076 (8th ed. 2004). This definition suggests that a nominee possesses
few or no legally enforceable rights beyond those of a principal whom
the nominee serves……..The legal status of a nominee, then, depends
on the context of the relationship of the nominee to its principal.
Various courts have interpreted the relationship of MERS and the lender
as an agency relationship.”

“LaSalle Bank Nat. Ass’n v. Lamy, 2006 WL 2251721, at *2 (N.Y. Sup.
2006) (unpublished opinion) (“A nominee of the owner of a note and
mortgage may not effectively assign the note and mortgage to another for
want of an ownership interest in said note and mortgage by the
nominee.”)”

The law generally understands that a mortgagee is not distinct from a
lender: a mortgagee is “[o]ne to whom property is mortgaged: the
mortgage creditor, or lender.” Black’s Law Dictionary 1034 (8th ed.
2004). By statute, assignment of the mortgage carries with it the
assignment of the debt. K.S.A. 58-2323. Although MERS asserts that,
under some situations, the mortgage document purports to give it the
same rights as the lender, the document consistently refers only to
rights of the lender, including rights to receive notice of litigation,
to collect payments, and to enforce the debt obligation. The document
consistently limits MERS to acting “solely” as the nominee of the
lender.

Indeed, in the event that a mortgage loan somehow separates interests of
the note and the deed of trust, with the deed of trust lying with some
independent entity, the mortgage may become unenforceable.

“The practical effect of splitting the deed of trust from the promissory
note is to make it impossible for the holder of the note to foreclose,
unless the holder of the deed of trust is the agent of the holder of the
note. [Citation omitted.] Without the agency relationship, the person
holding only the note lacks the power to foreclose in the event of
default. The person holding only the deed of trust will never experience
default because only the holder of the note is entitled to payment of
the underlying obligation. [Citation omitted.] The mortgage loan becomes
ineffectual when the note holder did not also hold the deed of trust.”
Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App.
2009).

“MERS never held the promissory note,thus its assignment of the deed of
trust to Ocwen separate from the note had no force.” 284 S.W.3d at 624;
see also In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009) (standard
mortgage note language does not expressly or implicitly authorize MERS
to transfer the note); In re Vargas, 396 B.R. 511, 517 (Bankr. C.D. Cal.
2008) (“[I]f FHM has transferred the note, MERS is no longer an
authorized agent of the holder unless it has a separate agency contract
with the new undisclosed principal. MERS presents no evidence as to who
owns the note, or of any authorization to act on behalf of the present
owner.”); Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180
(N.D. Cal. 2008) (unpublished opinion) (“[F]or there to be a valid
assignment, there must be more than just assignment of the deed alone;
the note must also be assigned. . . . MERS purportedly assigned both the
deed of trust and the promissory note. . . . However, there is no
evidence of record that establishes that MERS either held the promissory
note or was given the authority . . . to assign the note.”).

What stake in the outcome of an independent action for foreclosure could
MERS have? It did not lend the money to Kesler or to anyone else
involved in this case. Neither Kesler nor anyone else involved in the
case was required by statute or contract to pay money to MERS on the
mortgage. See Sheridan, ___ B.R. at ___ (“MERS is not an economic
‘beneficiary’ under the Deed of Trust. It is owed and will collect no
money from Debtors under the Note, nor will it realize the value of the
Property through foreclosure of the Deed of Trust in the event the Note
is not paid.”). If MERS is only the mortgagee, without ownership of the
mortgage instrument, it does not have an enforceable right. See Vargas,
396 B.R. 517 (“[w]hile the note is ‘essential,’ the mortgage is only ‘an
incident’ to the note” [quoting Carpenter v. Longan, 16 Wall. 271, 83
U.S. 271, 275, 21 L. Ed 313 (1872)]).

* MERS had no Beneficial Interest in the Note,
* MERS and the limited agency authority it has under the dot does
not continue with the assignment of the mortgage or dot absent a
ratification or a separate agency agreement between mers and the
assignee.
* The Note and the Deed of Trust were separated at or shortly
after origination upon endorsement and negotiation of the note rendering
the dot a nullity
* MERS never has any power or legal authority to transfer the note
to any entity;
* mers never has a beneficial interest in the note and pays
nothing of value for the note.

Bankr. Code 547 provides, among other things, that an unsecured
creditor who had won a race to an interest in the debtor’s property
using the state remedies system within 90 days of the filing of the
bankruptcy petition may have to forfeit its winnings (without
compensation for any expenses it may have incurred in winning the race)
for the benefit of all unsecured creditors. The section therefore
prevents certain creditors from being preferred over others (hence,
section 547 of the Bankruptcy Code is titled “Preferences).” An
additional effect of the section (and one of its stated purposes) may be
to discourage some unsecured creditors from aggressively pursuing the
debtor under the state remedies system, thus affording the debtor more
breathing space outside bankruptcy, for fear that money spent using the
state remedies system will be wasted if the debtor files a bankruptcy
petition.

. Bankr. Code 547(c) provides several important exceptions to the
preference avoidance power.

Bankr. Code 547 permits avoidance of liens obtained within the 90 day
(or one year) period: the creation of a lien on property of the debtor,
whether voluntary, such as through a consensual lien, or involuntary,
such as through a judicial lien, would, absent avoidance, have the same
preferential impact as a transfer of money from a debtor to a creditor
in payment of a debt. If the security interest was created in the
creditor within the 90 day window, and if other requirements of section
547(b) are satisfied, the security interest can be avoided and the real
property sold by the trustee free of the security interest (subject to
homestead exemption). All unsecured creditors of the debtor, including
the creditor whose lien has been avoided, will share, pro rata, in the
distribution of assets of the debtor, including the proceeds of the sale
of the real estate


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Tags: 2923.5 2923.6 2924 2932.5 Audit bankruptcy california California cram down Chapter 13 civil code 2923.5 civil code 2924 Countrywide Cram down Cramdown criminal acts eviction FCRA FDCPA Federal Jurisdi, 2932.5, bankruptcy, Foreclosure, lis pendence
Categories : 2924, Foreclosure, bankruptcy, stop foreclosure


Wrongful Foreclosure 2923.5 and 2923.6 the recent holdings

21 05 2010

To start with, Gaitan is an unreported case, and should not be cited, nor rely on by the court. But more to the point, Gaitan is the only case in California to so hold. It summarily states that there is no private cause of action without much discussion. No other court so held.

The cases dealing with the issue of private cause of action deal specifically with section 2923.6 dealing with the duty of the servicers to the investors in modifying loans, and very generally, in fact conclusionary, with section 2923.5. both statutes were enacted under the Perata Mortgage Relief Act. Almost all the cases, excluding Gaitan, which is unreported, dismissed section 2923.5 claim (the one in which the lender must give preforeclosure notice to the borrower) on the merits, while dismissing section 2923.6 for lack of private cause of action.

Here is the reasoning for no private cause of action in section 2923.6. It is easily distinguished from the other non judicial foreclosure statutes:
“[N]othing in Cal. Civ.Code § 2923.6 imposes a duty on servicers of loans to modify the terms of loans or creates a private right of action for borrowers. The Perata Mortgage Relief Act was enacted relatively recently, and thus California courts have had little chance to examine its provisions. Nevertheless, section 2923.6, passed along with section 2923.5, clearly does not create a private right of action. That section solely “creat[es] a duty between a loan servicer [*19] and a loan pool member. The statute in no way confers standing on a borrower to contest a breach of that duty.” Farner v. Countrywide Home Loans, No. 08cv2193 BTM (AJB), 2009 U.S. Dist. LEXIS 5303, 2009 WL 189025, at *2 (S.D. Cal. Jan. 26, 2009). Other courts to consider this question have agreed unanimously with the Farner court. See Tapia v. Aurora Loan Servs., LLC, No. 1:09-cv-01143 AWI (GSA), 2009 U.S. Dist. LEXIS 82063, 2009 WL 2705853, at *1 (E.D. Cal. Aug. 25, 2009); Anaya v. Advisors Lending Group, No. CV F 09-1191 LJO DLB, 2009 U.S. Dist. LEXIS 68373, 2009 WL 2424037, at *8 (E.D. Cal. Aug. 5, 2009); Pantoja v. Countrywide Home Loans, Inc., F. Supp. 2d , No. C 09-01615 JW, 2009 U.S. Dist. LEXIS 70856, 2009 WL 2423703, at *7 (N.D. Cal. July 9, 2009); Connors v. Home Loan Corp., No. 08cv1134-L(LSP), 2009 U.S. Dist. LEXIS 48638, 2009 WL 1615989, at *7 (S.D. Cal. June 9, 2009).
II compiled the cases in California dealing with the private cause of action as it relates to the statutory scheme for non judicial foreclosure and they clearly treat section 2923.6 differently from the other statutes and for a good reason.. I hope this will help.
Kuoha v. Equifirst Corp
., Slip Copy, 2009 WL 3248105, S.D.Cal.,2009
(Deciding section 2923.5 claim on the merits but citing Anaya v. Advisors Lending Group No. CV F 09-1191, 2009 WL 2424037, (E.D.Cal., Aug.5, 2009) for the proposition that there is no private right of action, although Anaya dealt only with Section 2923.6.)
Anaya v. Advisors Lending Group
No. CV F 09-1191, 2009 WL 2424037, (E.D.Cal., Aug.5, 2009) (No private cause of action to enforce section 2923.6)
Gaitan v. Mortgage Electronic Registration Systems
, not Reported in F.Supp.2d, 2009 WL 3244729
C.D.Cal.,2009. (Section 2923.5 contains no language that indicates intent to create a private right of action.)
Yulaeva v. Greenpoint Mortg. Funding, Inc
., Slip Copy, 2009 WL 2880393, E.D.Cal.,2009.
(In light of plaintiff’s concession that there was no private right of action to enforce 2923.5, the court declined to independently evaluate the legislature’s intent.)
Ortiz v. Accredited Home Lenders, Inc, 639 F.Supp.2d 1159, S.D.Cal.,2009
(the court rejected the bank’s argument that there was no private cause of action to enforce section 2923.5, and noted that while the Ninth Circuit has yet to address this issue, the court found no decision from this circuit where a § 2923.5 claim had been dismissed on the basis advanced by bank.)
Lee v. First Franklin Financial Corp
., Slip Copy, 2009 WL 1371740, E.D.Cal.,2009.
(Deciding a claim based on Section 2923.5 on the merits.)
Gentsch v. Ownit Mortgage Solutions Inc
., 2009 WL 1390843, (E.D.Cal., May 14, 2009)
(Ortiz’ court indicated that this case decided a claim based on section 2923.5 on the merits, but I could not open the case)
Permpoon v. Wells Fargo Bank Nat. Ass’n
, Slip Copy, 2009 WL 3214321, S.D.Cal.,2009.
(No private cause of action under section 2923.6, but deciding section 2923.5 on the merits)
Nool v. HomeQ Servicing
, 653 F.Supp.2d 1047, E.D.Cal.,2009.
(Granting leave to amend a claim under section 2923.6, but noting that there is no authority that supports a private right of action under this section. Mentioning that plaintiff sought leave to amend a claim under section 2923.5, without any further discussion.)
Paek v. Plaza Home Mortg., Inc
., Not Reported in F.Supp.2d, 2009 WL 1668576, C.D.Cal.,2009.
(Dismissing claim under 2923.5 on the merits, because plaintiff’s allegations were inadequate to “raise a right to relief above the speculative level.” And dismissing claim under 2923.6 on the merits, but quoting Farner v. Countrywide Home Loans, 2009 WL 189025 at *2 (S.D.Cal. Jan. 26, 2009) that “nothing in section 2923.6 imposes a duty on servicers of loans to modify the terms of loans or creates a private right of action for borrowers.”).
Farner v. Countrywide Home Loans
, Not Reported in F.Supp.2d, 2009 WL 189025, S.D.Cal.,2009 (nothing in section 2923.6 imposes a duty on servicers of loans to modify the terms of loans or creates a private right of action for borrowers.)
Collins v. Power Default Services, Inc
., Slip Copy, 2010 WL 234902, N.D.Cal.,2010.
(Citing In Connors v. Home Loan Corp., District Court for the Southern District of California determined that there was no private right of action under section 2923.6. but granting leave to amend claim for “Violation of Statutory Duties” alleging that Defendants “failed to give proper notice under California law,” and issued ” notice of trustee’s sale that was not compliant with California law” to identify the statutory duties were violated, noting specifically possible sections 2924(a)(1), and 2924f.)
Connors v. Home Loan Corp
., Slip Copy, 2009 WL 1615989, S.D.Cal.,2009
(no private right of action with respect to section 2923.6.)
Glover v. Fremont Inv. and Loan
, Slip Copy, 2009 WL 5114001, N.D.Cal.,2009.
(No private right of action with respect to section 2923.6, but granting leave to amend re claim under 2923.5, to include factual allegations to support the bare legal conclusions.)
Reynoso v. Chase Home Finance
, Slip Copy, 2009 WL 5069140, N.D.Cal.,2009
(Section 2923.6 does not create a private right of action for purported violations of its provisions)
Tapia v. Aurora Loan Services, LLC
, Slip Copy, 2009 WL 2705853, E.D.Cal.,2009.
(“California Civil Code section 2923.6 does not create a cause of action for Plaintiff. Subdivision (a) of the section applies only to servicers and parties in a loan pool.” )
Reynoso v.Paul Financial, LLC
, Slip Copy, 2009 WL 3833298, N.D.Cal.,2009.
(Plaintiff’s claim for specific performance to modify the loan terms pursuant to section 2923.6(a), dismissed with prejudice. “Nothing in Cal. Civ.Code § 2923.6 imposes a duty on servicers of loans to modify the terms of loans or creates a private right of action for borrowers.”)
Enders v. Countrywide, Home Loans, Inc
., Slip Copy, 2009 WL 4018512, N.D.Cal.,2009.
(No private cause of action for section 2923.6)
Biggins v. Wells Fargo & Co.
2009 WL 2246199 (N.D.Cal.,2009)
(dismissing a section 2923.6 claim for being a “stand-alone claim for relief” and informing parties that it could be brought under a § 17200 claim).
Dizon v. California Empire Bancorp, Inc
., Not Reported in F.Supp.2d, 2009 WL 3770695, C.D.Cal.,2009.
(No private right of action under section 2923.6)
Santos v. Countrywide Home Loans
, Slip Copy, 2009 WL 3756337, E.D.Cal.,2009.
(No private cause of action under 2923.6)
Maguca v. Aurora Loan Services
, Not Reported in F.Supp.2d, 2009 WL 3467750, C.D.Cal.,2009.
(No private right of action for 2923.6, and deciding section 2923.5 on the merits: cause of action for violation of section 2923.5 dismissed because the allegations in the complaint were conclusory, and were contradicted by the notice of default provided by Aurora.)
Butera v. Countrywide, Home Loans, Inc
., Slip Copy, 2009 WL 3489873, E.D.Cal.,2009.
(No private right of action under section 2923.6. But citing section 2924(a)(1), and quoting Munger v. Moore, 11 Cal.App.3d 1, 7, 89 Cal.Rptr. 323 (1970): ‘trustee or mortgagee may be liable to the trustor or mortgagor for damages sustained where there has been an illegal, fraudulent or wilfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust.”’, and finding that complaint lacks facts of foreclosure irregularities or facts to support wrongful foreclosure to warrant dismissal of the fourth claim.


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Categories : I Have a Plan


NOMINEE? NO POWER NO AUTHORITY

20 05 2010

Posted on May 19, 2010 by Neil Garfield
There’s more than one way to attack the prima facie case though—here’s a good example of a nice result from attacking the assignment…

This NY decision lays out the legal reasoning for dismissing cases for problematic assignments:

Decided on April 19, 2010
Supreme Court, Kings County
The Bank of New York, as trustee for the benefit of the
Certificateholders, CWABS, Inc., Asset Backed Certificates, Series 2007-2, Plaintiff,
against
Sameeh Alderazi, Bank of America, NA, New York City Environmental Control
Board, .
Plaintiff submits anet al

Upon reading the Affirmation of Linda P. Manfredi, Esq., counsel for the
Plaintiff, dated November 20, 2008, together with Plaintiff’s Memorandum of
Law, dated November 19th, 2008, together with the proposed Ex Parte Order
Appointing a Referee to Compute, and all exhibits annexed thereto, the
application is denied without prejudice, with leave to renew upon providing the
Court with proof of the grant of authority from the original mortgagee to
MERS specifically to act in its interest as related to the secured loan
which is the subject of this action.
Plaintiff seeks summary judgment to foreclose upon the property located at
639 East 91st Street, (Block 4751, Lot 31), in Kings County.
In order to establish prima facie entitlement to summary judgment in a
foreclosure action, a plaintiff must submit the mortgage and unpaid note,
along with evidence of default. Capstone Business Credit, LLC v. Imperial
Family Realty, LLC, 70 AD3d 882
, 895 NYS2d 199 (2nd Dept 2010). The Second
Department has also required a showing that the mortgage was valid. Washington Mut.
Bank, FA v. Peak Health Club, Inc., 48 AD3d 793
, 853 NYS2d 112 (2nd
Dept.2008).
In this case, Defendant Sameeh Alderazi borrowed $408,000.00 from
“America’s Wholesale Lender” on January 25, 2007. The mortgage was recorded in the
Office of the City Register, New York City Department of Finance on
February 14, 2007. MERS was referred to in the mortgage as nominee of the
mortgagee, America’s Wholesale Lender, for the purpose of recording the mortgage.
MERS purported to assign the mortgage to Plaintiff BANK OF NEW YORK on
July 23, 2008. The assignment was recorded on September 19, 2008. The
assignment was executed by “Keri Selman, Assistant Vice President of MERS, as
“authorized agent pursuant to Board of Resolutions and/or appointment”. However,
no resolution nor other proof of authority was recorded with the
assignment or submitted to the Court.
A party cannot foreclose on a mortgage without having title, giving it
standing to bring the action. (See Kluge v. Fugazy, 145 AD2d 537, 538 (2nd
Dept 1988 ), holding that a “foreclosure of a mortgage may not be brought by
one who has no title to it and absent transfer of the debt, the assignment of
the mortgage is a nullity”. Katz v. East-Ville Realty Co., 249 AD2d 243
(1st Dept 1998), holding that “[p]laintiff’s attempt to foreclose upon a
mortgage in which he had no legal or equitable interest was without foundation
in law or fact”.
“To have a proper assignment of a mortgage by an authorized agent, a power
of attorney is necessary to demonstrate how the agent is vested with the
authority to assign the mortgage.” [*2]HSBC BANK USA, NA v. Yeasmin, 19 Misc
3d 1127(A), 866 NYS2d 92 (Table) N.Y.Sup.,2008. “No special form or
language is necessary to effect an assignment as long as the language shows the
intention of the owner of a right to transfer it”. Emphasis added, Id.,
citing Tawil v. Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 (1st
Dept 1996); Suraleb, Inc. v. International Trade Club, Inc., 13 AD3d 612
(2nd
Dept 2004).
The claim in this case is that the mortgage was assigned by MERS, as the
nominee, to the Plaintiff. However Plaintiff submits no evidence that
America’s Wholesale Lender authorized MERS to make the assignment. MERS submits
only its own statement that it is the nominee for America’s Wholesale
Lender, and that it has authority to effect an assignment on America’s Wholesale L
ender’s behalf.
The mortgage states that MERS is solely a nominee. The Plaintiff, in its
Memorandum of Law, admits that MERS is solely a nominee, acting in an
administrative capacity.
In its Memoranda, Plaintiff quotes the Court in Schuh Trading Co., v.
Commisioner of Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), which
defined a nominee as follows:
The word nominee ordinarily indicates one designated to act for another as
his representative in a rather limited sense. It is used sometimes to
signify an agent or trustee. It has no connotation, however, other than that of
acting for another, or as the grantee of another.. Id. Emphasis added.
Black’s Law Dictionary defines a nominee as “[a] person designated to act
in place of another, usually in a very limited way”. Agency is a fiduciary
relationship which results from the manifestation of consent by one person
to another that the other shall act on his behalf and subject to his
control, and consent by the other so to act. Hatton v. Quad Realty Corp., 100
AD2d 609, 473 NYS2d 827, (2nd Dept 1984). “[A]n agent constituted for a
particular purpose, and under a limited and circumscribed power, cannot bind his
principal by an act beyond his authority.” Andrews v. Kneeland, 6 Cow. 354
N.Y.Sup. 1826.
MERS, as nominee, is an agent of the principal, for limited purposes, and
has only those powers which are conferred to it and authorized by its
principal.
In the mortgage in this case, MERS claims, as nominee, that it was granted
the right “(A) to exercise any or all of those rights, including, but not
limited to the right to foreclose and sell the Property, and (B) to take
any action required of the Lender including, but not limited to, releasing
and canceling this Security Instrument.” However, this language quoted by
MERS is found in the mortgage under the section “BORROWER’S TRANSFER TO LENDER
OF RIGHTS IN THE PROPERTY” and therefore is facially an acknowledgment by
the borrower. The fact that the borrower acknowledged and consented to MERS
acting as nominee of the lender has no bearing on what specific powers and
authority the lender granted MERS. The problem is not whether the borrower
can object to the assignees’ standing, but whether the original lender,
who is not before the Court, actually transferred its rights to the
Plaintiff. To allow a purported assignee to foreclosure in the absence of some proof
that the original lender authorized the assignment would throw into doubt
the validity of title of subsequent purchasers, should the original lender
challenge the assignment at some future date.
Furthermore, even accepting MERS’ position that the lender acknowledges
MERS’ authority exercise any or all of the lenders’ rights under the
mortgage, the mortgage does not convey the specific right to assign the mortgage.
The only specific rights enumerated in the [*3]mortgage is the right to
foreclose and sell the Property. The general language “to take any action
required of the Lender including, but not limited to, releasing and canceling
this Security Instrument” is not sufficient to give the nominee authority to
alienate or assign a mortgage without getting the mortgagee’s explicit
authority for the particular assignment. Alienating a mortgage absent specific
authorization is not an administrative act.
Plaintiff submitted no other documents which purport to authorize MERS to
assign or otherwise convey the right of the mortgagor to assign the
mortgage to another party.
A party who claims to be the agent of another bears the burden of proving
the agency relationship by a preponderance of the evidence, Lippincot v.
East River Mill & Lumber Co., 79 Misc. 559, 141 NYS 220 (1913), and “[t]he
declarations of an alleged agent may not be shown for the purpose of proving
the fact of agency”. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing
Corp., 122 AD2d 25, 504 NYS2d 192 (2nd Dept 1986). See also Siegel v. Kentucky
Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 (2nd Dept
1985), Moore v. Leaseway Transp. Corp., 65 AD2d 697, 409 NYS2d 746 (1st Dept
1978). “The acts of a person assuming to be the representative of another
are not competent to prove the agency in the absence of evidence tending to
show the principal’s knowledge of such acts or assent to them”. (2 NY Jur
2d, Agency and Independent Contractors, 26).
Plaintiff has submitted no evidence to demonstrate that the original
lender, the mortgagee America’s Wholesale Lender, authorized MERS to assign the
secured debt to Plaintiff.
Thus, Plaintiff has not made out a prima facie case that it is entitled to
foreclose on the mortgage in question.WHEREFORE, it is ORDERED that the
Plaintiff’s application for an Order appointing referee to compute amounts
due to the Plaintiff is denied with leave to renew upon proof of authority.
This shall constitute the decision and order of this Court.


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Categories : I Have a Plan


Attorneys take on the Foreclosure crisis

20 05 2010

By Kristina Horton Flaherty
http://www.thestopforeclosureplan.com/Contact.html
Staff Writer

One recent fall morning, nearly 80 attorneys, paralegals and housing counselors streamed into San Francisco’s Practising Law Institute — another 166 arrived via the Internet — to learn how to better help desperate homeowners facing foreclosure.

More than 79,000 Californians lost their homes in the third quarter of 2008. Another 94,240 new default notices went out during the same period. And with credit tight, housing counselors overwhelmed and loan modification scams on the rise, experts say, thousands of homeowners are sinking fast.

The free, day-long “Defending Subprime Mortgage Foreclosures” training, still available online, was just one of several initiatives jointly sponsored by the State Bar to provide information and rally more volunteer assistance for those caught in the foreclosure crisis.http://www.thestopforeclosureplan.com/Contact.html

Other efforts include a free training on how to defend unlawful detainers (co-sponsored by Housing and Economic Rights Advocates of Oakland and others), and a new Web site — Foreclosure InfoCA.org — launched by the Public Interest Clearinghouse and the bar for homeowners and tenants, as well as attorneys interested in volunteering their help.

“There aren’t enough people out there to help the borrowers,” said Tara Twomey, the National Consumer Law Center attorney who conducted the foreclosure defense training. “It’s a numbers problem, a sheer numbers problem, especially in areas like California.”

And attorney volunteers from all areas of practice can make a difference, she says. “Does that mean every borrower can be helped? Probably not. But I do think that with some persistence, a lot of borrowers can.”

That help might involve seeking a loan modification or simply developing an exit strategy — delaying an eviction or negotiating a payment from the lender to vacate the home. Freezing an interest rate for two years while the borrower’s child finishes high school, for example, might be one homeowner’s goal. “Not everybody needs a long-term solution,” Twomey said.

The training includes an overview of the subprime mortgage market, the foreclosure process, the current crisis and responses to it, available options and how to spot potential predatory lending, federal law violations and state claims in the origination and servicing of subprime mortgages.

A recent explosion in loan modification scams illustrates that borrowers are not finding the help they need, Twomey points out. Desperate borrowers pay fees in advance to someone who promises to renegotiate their loan but winds up doing little or nothing.http://www.thestopforeclosureplan.com/Contact.html

“People are willing to pay money because the system’s so broken that they can’t get anywhere,” Twomey said. “Really, this should be able to be done for free.”

But housing counselors and non-profit programs are stretched too thin, many say. And borrowers often cannot get through to anyone at their financial institutions who can help them. In turn, a spin-off loan modification industry — along with numerous scams — has sprung up in just months.

“It’s just exploded,” said Tom Pool of the Department of Real Estate.

But companies that promise to help consumers in foreclosure cannot legally collect advance fees (attorneys are exempt from this prohibition). If no default notice has been recorded, real estate brokers can collect advance fees for such work if they have special approval from the DRE. In early November, just 12 brokers had such approval; six weeks later, that number had jumped to 40, with another 400 applications pending.

Loan modification scams typically start with a flyer, phone call or knock at the door and an offer to renegotiate the homeowner’s loan — for an upfront fee. Participating homeowners often are told to avoid contacting their lenders. Then, while the company does little or nothing to renegotiate the loan, the unwitting homeowner loses precious time and falls deeper into foreclosure.

“Loan modification scams are becoming more and more prevalent across the country, particularly in California,” Attorney General Jerry Brown said in November, after announcing arrests in an alleged Southern California scam involving First Gov (also operating as Foreclosure Prevention Services).

Homeowners allegedly paid First Gov an advance fee of $1,500 to $5,000 and then, when delinquency or foreclosure notices continued to pile up, were told that they needed to make an additional “good faith” payment to secure new accounts for their renegotiated loans. According to the Attorney General’s Office, records suggest homeowners lost more than $700,000 in the scheme.

Prosecutors and nonprofit counselors alike stress that assistance is available for homeowners at little or no cost. But many swamped non-profits need help — particularly from attorneys in such areas as bankruptcy, probate, elder abuse and consumer law.http://www.thestopforeclosureplan.com/Contact.html

At the Sacramento-based Senior Legal Hotline, those manning the phone lines can only handle about half of the 80 to 100 calls that back up every day, says supervising attorney David Mandel. And the bulk of those calls now involve foreclosure-related cases that tend to be more time-consuming.

“The amount of time we’re spending on each case has shot way up,” Mandel said. In some instances, he turns to reverse mortgages to help seniors stay in their homes. And he could really use help, he says, from attorneys willing to handle predatory lending cases that might lead to litigation.

The Housing and Economic Rights Advocates in Oakland currently handles 100 to 200 foreclosure-related calls a week, sometimes as many as 65 calls a day. Executive Director Maeve Elise Brown says she’s hoping to build a list of vetted pro bono attorneys who could be tapped, with some guidance, to take on some of their cases.

Kellie Morgantini, one of two staff attorneys at Legal Services for Seniors in Monterey County, says she’s recently seen a huge jump in senior tenants on the verge of eviction. They live in homes purchased as investment properties during the boom. They pay their rent on time. And then one day, the sheriff shows up with an eviction notice.

All Morgantini can do in most cases is negotiate a delay in the move, she says. She works to keep the tenant’s name off of the unlawful detainer as well. And she’s met with the sheriff to try to find a way to ease the situation. In one recent case, Morgantini’s client moved out after a delay, but bank investigators later insisted the woman was still in the home. As it turned out, someone else in dire straits had settled into the vacant home and placed a post-it on the window: “Please don’t throw us out. We’re a family.”

Morgantini attended the recent foreclosure defense training via the Webcast, she said, to learn how to better assist the surge of seniors falling victim to foreclosure, predatory lending scams and potential homelessness.

“This has been something that has been getting bigger and bigger,” she said. “We needed to be able to see how to focus on what’s important.”http://www.thestopforeclosureplan.com/Contact.html

Dan Mulligan of Jenkins, Mulligan & Gabriel LLP, a presenter at the training, says very little can be done for borrowers in the current climate. But, he said, attorneys who want to help should take the training, get into an organized pro bono program and try to do something. “Dig in,” the La Quinta attorney said, “and see where you can go on the loan modification process. It’s still possible.”

To view the trainings at no charge and earn MCLE credit, go to ForeclosureInfoCA.org. The Web site also provides a link to a list of programs that are seeking pro bono help from attorneys statewide.(866)717-0415 in Northern California(916)361-6583 http://www.thestopforeclosureplan.com/Contact.html
Many a client call me when its toooooo late however sometimes something can be done it would envolve an appeal and this application for a stay. Most likely you will have to pay the reasonable rental value till the case is decided. And … Yes we have had this motion granted.
ex-parte-application-for-stay-of-judgment-or-unlawful-detainer3
When title to the property is still in dispute ie. the foreclosure was bad. They (the lender)did not comply with California civil code 2923.5 or 2923.6 or 2924. Or the didn’t possess the documents to foreclose ie. the original note. Or they did not possess a proper assignment 2932.5. at trial you will be ignored by the learned judge but if you file a Motion for Summary Judgment
evans sum ud
template notice of Motion for SJ
TEMPLATE Points and A for SJ Motion
templateDeclaration for SJ
TEMPLATEProposed Order on Motion for SJ
TEMPLATEStatement of Undisputed Facts
you can force the issue and if there is a case filed in the Unlimited jurisdiction Court the judge may be forced to consider title and or consolidate the case with the Unlimited Jurisdiction Case

2nd amended complaint (e) manuel
BAKER original complaint (b)
Countrywide Complaint Form
FRAUDULENT OMISSIONS FORM FINAL
sample-bank-final-complaint1-2.docx
California stop foreclosure and get your own shortsale COMPLAINT
elderabusecomplaint
And in some cases an injunction is in order
Foreclosure injunction TRO
and a Lis Pendence

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