Supporting, Informing & Connecting People in Foreclosure
Maybe the trick is to file a QWR under Ca Civ Code 2943 for a 'beneficiary statement' and copy of the Note and Deed of Trust. To counter the problem above it needs to be sent before the Notice of Default ... when you miss your first payment due date and sense you won't be able to make many more. Then send another QWR a month or so after you miss your 3rd payment.
If you did not have such good foresight, consider a conversation with the county sheriff. He may respond well to the concept that finding 10 such cases is $750k, and 100 such cases is $7.5M. That's enough to be able to hire another deputy. A variation of this is to find 10 such cases yourself, with yours being one of them. Then its RICO time. And a sheriff might appreciate that you came to him and allowed him to make the DA look stuupid. And you get to throw it back onto the DA that all the cases you discovered can now be proven to have clouded titles thanks to the inaction of the DA.
But this whole bankster scheme was hatched in East and nests in the West, particularly L.A. and San Diego, home of the incredibly stuupid Gomes v Countrywide appeals decision. This is where the county 'supplements' the pay of Superior Ct. judges, and amazingly, never lose a case against Joe the Plumber.
It seems the only way to fight it would be to 1) identify some number of loans (13 comes to mind) where the evidence is prima fascia - nothing about what is on document except beneficiary's name. Nothing about screwy signatures. Each of those represent a home taken by an illegal act. And that clouds the title for the subsequent buyer.
I appreciate what can be done with a QWR, and I want to thank you for your input. The felony is attached to a recorded document being false or forged. A QWR that requests, among other things, a copy of a previously recorded document (viz.: the TD), even if it were totally ignored by the recipient, would not be a 115 PC violation.
The DA has the final say in what is accepted for filing a criminal complaint or not. So circumventing his office and going to the Sheriff, would win very few "brownie points," if any. (Even in the world of law enforcement, you can't forget that you are dealing with egos.)
I need something that will show that the lender or Trustee KNEW that it/they lacked standing to even initiate the foreclosure process. Essentially, DA's office wants to see that the filing of the NOD, and any subsequent documents pertaining to the foreclosure, was premeditated with the intent of taking a residence that they knew they had no right to. A DA investigator and Supervising Deputy DA that I've spoken to both said that, because payments were missed, the lender believed it had the RIGHT to take the property. It is my belief that, with the slicing and dicing of motgage loans into MBS (trusts), the servicing lenders know, and know that they know, that they don't have any legitimate interest in, much less possession of, the original wet-sig note. But proving this is the issue.
In fairness to the employees of the various District Attorney offices across the State, they don't have the resources to do the indepth investigation required, so we have to do the work for them. Then there is still the concern that the DA employees will understand what we are showing them and they, in turn, will be able to educate a jury so that we can possibly obtain the desired verdict.
Finding any number of potential cases is incredibly easy. Showing that the foreclosing lender and Trustee knew that they lacked standing to foreclose, is where I'm stumped.
The point of the QWR is the timing and repetition - it puts the beneficiary on notice that their authority as holder in due course is being challenged by requesting the Note and Deed of Trust. If a second request is necessary because of inadequate response to the first, then you have a pattern of deceit and beneficiary no longer can claim they have 'clean hands'. Beneficiary has no defense of 'mistake' or 'surprise'. But like I said, not many people have sent their first QWRs yet, let alone determined if a second one is necessary.
And in California, don't forget you have the right to request the original note and deed of trust back from the Trustee when the mortgage concludes, whether by foreclosure or paid in full. But you have to make a specific request for it.
In the past civil and criminal cases were combined and the civil was dealt with first to most fully compensate victims. Then the criminal portion of the case proceeded. If the forgeries were created by the current lender and evidenced in the civil trial, then the unclean hands obliterates the expectation of foreclosure from missed payments. If the forgeries were created by previous lenders, then it seems you should be able to take damages from current lender and current lender can sue previous lender to pay for the damages paid to you. You should not have to pay for their neglect to validate their transaction from the entity selling the Note to them. This is what MERS was created to do. Block the warranty back to originating lenders. The conversion of the Note to MBS subverts the warranty (wrong word) from the investors but passes the beneficiary interest to them for tax purposes.
Then again, I am not an attorney, so this is all probably hogwash, and should be taken as such.
It is true that civil and criminal cases are often combined, with the civil case leading the parade. However, most of the homeowners that are in trouble that I know, lack the funds needed to pursue an independent civil action. A criminal action is FREE to the victim. (These homeowners ARE victims!) A successful result in a criminal proceeding should pave the way to a speedy civil settlement. You specifically address forgeries. Not everyone is a victim of the robo-signers; and, even those that are victims of robo-signing, unless you have several examples of alleged robo-signed signatures that appear different from one another, robo-signing is very difficult, if not impossible, to prove.
The good news is that there is no jail time for violation 115 PC. (Remember it costs the taxpayers about $50k/year to care for and feed a prisoner in California.)
You said something that did get my attention though. You said that the debtor has a right to request the original note and deed of trust back from the Trustee when the mortgage concludes, whether by foreclosure or paid in full. OK, but does the lender have an obligation to remit those documents? Anyone can ask for anything; getting what you ask for, however, is a whole other subject. (I've seen several BofA responses to QWRs where a homeowner has requested to merely view the original, wet-sig promissory note, where BofA's response was simply that they know of no law requiring that they show the original note, so don't bother them until the homeowner has the necessary citation.) If the Trustee is obligated to return the original, wet-sig satisfied note and deed of trust to the foreclosed homeowner, can you please give me the citation that makes that so? Is there a time limit within which the request must be made?
This is what you are missing. In my post I did not use the word fraud.
Cal Civ Code
2941. (a) Within 30 days after any mortgage has been satisfied, the
mortgagee or the assignee of the mortgagee shall execute a
certificate of the discharge thereof, as provided in Section 2939, and
shall record or cause to be recorded in the office of the county
recorder in which the mortgage is recorded. The mortgagee shall then
deliver, upon the written request of the mortgagor or the mortgagor's
heirs, successors, or assignees, as the case may be, the original
note and mortgage to the person making the request.
In the code above the word 'shall' means it is not an option.
"if the homeowner is behind in the mortgage payments, the lender has the right to foreclose, REGARDLESS if they get the documentation right OR NOT!"
so if the servicer manufactures the default by lets say losing the payment & the attempting to increase the next payment by say $500. what??? sure they have the right to foreclose!!
the DA is another do nothing poser, another deadbeat gov employee that needs to be shown the door. the only help ca homeowners will get is fleeced & shown the door while the self-serving gov employees collect benefits.
Though I do agree with much of what you say, I disagree with what I interpret as a "do nothing" response. I've had about 20 years experience filing criminal complaints in various DA and CA (City Attorney) offices located in LA, Orange, Riverside and San Bernardino Counties when I was one of those State employees. But, now I've hit a rock wall in that the DA's offices seem to recognize that there is wrongdoing (a suggestion was made that one homeowner hire an attorney but the investigator saw no fraud) but, unless the lender/Trustee knew during the foreclosure process that they had NO right to the property (e.g.: standing to foreclose), they don't want to recognize "criminal" fraud.
Also, we have to keep in mind that, though these people may have passed the bar, they know about murder and robbery, but they KNOW NOTHING about this area of the law, so they must be spoon fed like a small child so they can recognize the real wrongdoing here. As taxpayers, we should appreciate that they look at all possible scenarios and try to determine the probability of success in a jury trial. (Remember the O.J. Simpson murder trial in LA? It made the LA DA's office the legal laughing stock of California and wasted about a million taxpayer dollars putting on that show.)
I know in my heart that that the lender/Trustee knows there is no real legal standing to initiate the foreclosure. And if they do know they have no standing, there is a way to prove this to the satisfaction of a reviewing Deputy DA. Once I overcome this hurtle, these complaints should be able to be filed anywhere in California with relative ease. And, as I said in my initial post, it makes no sense to me for a Trustee to pursue a foreclosure if a felony complaint has been filed against that Trustee for the documents recorded to pursue the foreclosure. Wouldn't that foreclosure be somewhat tainted until the criminal proceeding was completed?
I actually tried to sue a Sr. Dist Court Bk Judge here in ST. Louis for "Obstructing the Law". You're right they know before they file anything that they don't know who owns the note. Not only that they allow trustees to represent that they have the right to sell notes for one of the largest banks in the world w/o recourse if you try to stand up to them.
Two separate judges in my case recused. One disqualified and recused. The bk judge I filed the suit against along with Citi and the whole gang I've found another case of fraud in his court as recent as Oct 2010 where the company would of lost $40m or more because of his failure to OBEY THE LAW.
My blog has most of the paperwork and info if its not there you can always email me for more info. So far everything has fallen on deaf ears with ENFORCEMENT OF CORRUPTION!
GOOD LUCK IN YOUR ENDEAVORS!
my 2 page post got wiped by the wrong button whaaaaaaaaaa.
so with that said i will retype that- I meant no offense if you are the exception to the gov employee rule...
yes some people really do have ethics [ie like you! ]
I know others i will refer to help you with this...
Thanks for making a stand!
No offense taken. The State of California and I came to the agreement that my work ethic could best be used elsewhere in 1994. The huge problem is the ignorance (not stupidity) of the employees in the DA's office. Generally speaking, these men and women work in this environment because they really want to make society a better place for us all. You give them a rape, robbery or murder, they know what to do and are chomping at the bit to do it. However, you try to give them a "chain of title" issue and their eyes just glaze over.
Because they honestly believe that a real loan has been made on which payments were due but were not made as agreed, the lender, therefore, has a "right" to take the colateral, even if the bankster doesn't follow the absolute letter of the law in the process.
Anyone who can help shed any light on how quickly and easily (for the reviewing DA employee) educate to understand what we have learned that is really happening, PLEASE CONTACT ME.
@Randy, How about post foreclosure. It would seem if you could find people willing to pony up for civil cases post foreclosure, you would cease all pre-foreclosures, right? There are only a few Trustees in Cali, that each of these banks uses.
2.Recontrust Company NA.
3.Northwest Trustee Services Inc.
Perhaps there are homeowners who have all 3 of these Trustees.
Furthermore, examples of Trustee endorsements by Title Companies are:
1.+(By First American, As Agent)
2.+(As agent for the Beneficiary By LandSafe Title Corporation, as its Attorney in Fact)
3.+(As agent for Beneficiary By First American Title Insurance Company, as Agent)
All of these entities are layers upon layers.
Let me know if i can help?