Supporting, Informing & Connecting People in Foreclosure
LEVERAGING DEFEAT INTO WIN
PARTIES TO THE ACTION (Part 2)
THE VESTING ASSIGNMENT
Hut, did you get that concept that the GSE is acting as agent for pool; 'beneficiary' on NOD is acting as agent for GSE; assignment to lender after NOD is to agent of GSE?
the last assignment is the 'vesting assignment'
I do. I was just reading yet another PSA. They intentionally made this silly maze to hide their crimes.
we should all be looking in our county recorders for Power of Attorney of GSE and major lenders, usually done in December.
KT was on the "Power of Atty" awhile back. If revoked, would that not start the house of cards to collapse?
then you can present POA to judge and ask if assignment was to lender, or lender as agent of assigner
The truth! What was his reply?
They'll be careful to renew POA within the statutes, at great expense, I might add.
the beauty of the POA is that it can be judicially noticed in your pleadings, and can therefore be used in UD actions.
unlawful detainer (post FC)
POWERS OF THE INSTRUMENT
your mortgage / note and DOT are an instrument that describes several powers in conjunction with real property law
you may have heard the power of sale. well, one of the players holds most of the powers, and powers are mistakenly ascribed to the wrong players.
as borrower you have power to rescind, to sue, to cure defaults, amend contract changes with beneficiary.
The lender or beneficiary has the greatest number of powers - to amend contract with borrower; to modify payment schedule and other terms; to assign the loan to another beneficiary; to name trustee; to collect and benefit from payments; to declare a default; to accelerate loan payment; to elect to invoke / exercise power of sale ; to conduct non-judicial mortgage foreclosure; or file suit for judicial foreclosure.
The trustee has power to name another trustee, and to conduct a non-judicial foreclosure when the beneficiary has elected to exercise the power of sale; the power to disburse sale proceeds; and reconvey the trust deed.
In CA the beneficiary has all the power to substitute a trustee , but not to conduct the sale for deed of trust loans. The trustee does not have all the powers of a beneficiary. In CA a deed of trust loan is a 3-party proposition according to Stockwell v. Barnum (1908) and affirmed by Calvo v. HSBC (2012).
Each of those powers is a separate action which is likely described in your state statutes under mortgages or commercial code
In CA judges think a 'nominee' has the power to elect to exercise the power of sale
worse yet, they think the trustee has the power to elect to exercise the power of sale when it is restricted to conducting a non-judicial sale and reconveyance.
you need to make sure your judge understands the powers, and who, exactly, holds them
you lay it out in your pleadings. Mark, for example, should explain there is a loan trustee related to the DOT, and a security trustee (mellon, in his case), and be careful to distinguish
Holy Grail of FAS140
Wood - Phred-that link you posted from pro publica had me searching for info on QFC and Non QFC. Phred can you elaborate on that-all links led to the FDIC
Phred - FAS 140 is the SEC equivalent of civil law for securities
Thunder - and if they claim lost note ...where are the docs filed with the SEC?, custodian don't have them ...
Phred - and if they claim lost note they have to post a bond, depending on state
Thunder - FAS 140 basically says one cannot sell to oneself ... [must be] arms length trans action
Phred - and in CA, provide evidence they actually possesed it when it was lost. Thunder, where are you from and what kind of bkground do you have? Not many know about FAS 140, let alone what it means.
Phred - when FNMA buys note it sets itself up as trustee to hold power of sale interest, and turns power to collect over to trust and retains power to name trustee and assign. the trick is getting them to show you the balance sheets in discovery
Thunder - just because it is a parent company gives it no rights of subsidary
Phred - that may be the violation of FAS140, aka, 'the holy grail' of foreclosure defense.
Thunder - FAS140 is a wonderful thing. especially if it is two distinct corporations and the parent company is trying to sell a note that is not in its possession and sold it or claimed a sale of it on behalf of the separate and distinct corporation. The parent company is just that, a parent company that has subsidiaries which are in essence a company of their own.
MarkNJ - so only one entity can be a holder?
Thunder - Is that right Phred? I was just guessing
Phred - in FNMA's case, the 'holder' is holding two things, beneficiary interest and power of sale. and the beneficiary interest is split between the 'trust' and FNMA. so it may be that FAS140 would not allow it all to be put back together when default (FNMA, the beneficiary) declares default, and FNMA the trustee invokes FC
Thunder - let's just say if the subsidiary held the note and the parent company sold the note ... the parent company could not sell the note cause it was not the owner of the note. and the parent company could not claim ownership of it because one of it's subsidiary had control of the note , that is a violation of the FAS140
PARTIES TO THE CONTRACT
Hi, all. Found a particularly nasty case in the SoCal tentative rulings. Calvo v HSBC. Essentially judge says deed of trust loans don't have to be recorded when assigned. It was a Ct. of Appeal case, no less. Really, really bad law. Completely ignored 3rd party to all our cases.
the borrower, ... the lender, ... no, not the candlestick maker ...
KT - nor the cheif cook and bottle washer
c'mon Hamleteers, this is great leverage because it will confound the judges and lay waste to the opposition case
the subsequent buyer. All 3 have right to a clear title to the property, borrower and lender have obligation to leave title clean when done.
So if you can't claim a cause of action for yourself, try using the 3rd party, aka, "the public interest". For example, the CA decision is bad law because it makes most homes uninsurable with mtge insurance because title can't be traced.
Cutting the tax base in 1/2 of property taxes in the entire state is definitely not in the public interest. Title can't be traced because the only record of beneficiary change is on the back of the promissory note, which is returned to borrower at termination of loan.
subsequent purchaser wouldn't have access to the single document that can be used to insure title. If it exists .... lol
words of wisdom - http://www.youtube.com/watch?v=IHTs6NqhHHg&feature=player_embedded
I got defendants attorneys to bail once I hammered the criminal penalties in a response.
I requested sanctions equal to the fines the state didn't want to collect.
Forgery, perjury, grand theft, false filing ... these are a few of my favorite things ... lol
Defendants attorneys guilty of bringing fraud to the court and should be criminally charged. They knew or should have known. No banker shows up in court for the most part.
Think about it. If you bring up criminal charges in a civil suit, isn't that like making a citizen's arrest? You don't need DA to make citizen's arrest.
But because you bring it up in court, the court takes jurisdiction of the 'arrest'.
So you need to make sure you have a judge with criminal experience. Would be a good question with which to recuse a judge.
I have FNMA and JPMorgan as parties represented by single atty who went missing at status conf today
How do you draw the lines on atty-client privilege?
They were all acting in an informal partnership relationship (conspiracy) to enact a scheme of grand theft (home equity) and larceny (atty fees, svc fees, etc) by inducing me to default by refusing to supply a copy of my promissory note when legally demanded.
Notice how I used all those criminal activity words without using the 'f' word?
It helps to have prima fascia evidence of felonies (false filing at County Recorder)
DISCOVERY - 'TRADE SECRETS'
The information is subject to reasonable efforts to keep it secret. The owner of a trade secret must make reasonable efforts to keep the information secret. What is reasonable is determined by a cost-benefit analysis that varies from case to case
To use the Coke example one last time, the company certainly takes reasonable efforts to keep the formula secret.
As noted above, it keeps the formula locked in a vault, and only a few executives know it.
OK, with this in mind, the question then becomes, did a group of employees in he company claiming trade secret
have free and open access to said data. How was this access SECURED and Safe GUARDED?
i.e. If 387 employees on Bob's Bank could access the data, openly and freely, then it CANNOT be claimed as Trade
Secret. Also, if the data is merely usual and NOT unique data in the course of business it has NO TRADE SECRET VALUE.
The information must confer a competitive advantage. If all it is is ledger entries on your loan , then it does NOT "confer a competetive advantage"
You challenge the "trade secret"claim by demanding that they disclose HOW the data gives them a competitive
advantage, AND what * reasonable efforts to keep it secret
Identity of an investor is not a trade secret.
been there done that with Motion for In Camera Inspection of Trade Secret Docs
Inspection is one thing. You must CHALLENGE the claim. YOU must claim that the material is NOT trade secret, and cite the definitions of trade secrets in state law.
The main goal of trade secrets law is to provide a way for businesses to capitalize on their unique practices or
knowledge created through their time and effort
Thx Randye - good timing. Would FNMA be considered unique?
well how can they consider it unique when the entire finance industry used it as standard procedure
What is *unique* in that process Phred?
WK answered already. Banks have private MBS that use same procedures.