Supporting, Informing & Connecting People in Foreclosure
UPDATE on our case (January 15, 2011, and some interesting information about U.S. Bank National Association, the bank we are up against:
We are still in our home (as of Jan. 15, 2011. We fought here in CA for 6 very l-o-n-g and trying months in our Unlawful Detainer (eviction) case. We are up against U.S. Bank National Association (the same bank as in the Ibanez case in MA, and who is a subsidiary of U.S. Bancorp, and related to U.S. Bank, who recently bought out Bank of America's securitization, pooling and servicing of mortgage-backed securties and asset-back securities business, see http://www.bloomberg.com/news/2011-01-04/us-bank-closes-buyout-of-b... and http://bailout.propublica.org/list).
We have very similar issues as in the recent MA "Ibanez" case that was won on January 7, 2011. We are hoping that we will soon be able to cite the Ibanez case to help ours, yet we are concerned that CA courts may not salute the MA ruling because MA is a "title theory" state and CA is a "lien theory" state. In MA, proof of standing to foreclose is required...and in CA, they don't care if they have standing or not...and they are not required to prove it...(YET)! How ridiculous is that? Federal Courts will listen, so that may be a good option if we need it.
We were ruled against on December 23, 2010 in Our Unlawful Detainer (UD) case. Unlawful Detainer is mostly about "Possession" of property, and in CA, the issues that can be raised regarding title are limited to only whether or not the foreclosure was done in compliance with state statute and our contract, our Deed of Trust. We brought up from the very beginning that the foreclosure was NOT done according to our contract (and FYI, if statute and contract ever contradict each other, contract prevails/controls).
The UD ruling basically said that Unlawful Detainer (eviction) action is the "improper forum" and jurisdiction to raise any issues involved in the wrongful conveyance of property by a lender/plaintiff v. borrower/homeowner/defendant. So, the court GRANTED SUMMARY JUDGMENT! So, let me get this straight: if that was the wrong forum or venue to bring an eviction action...then why did they rule against us since it was the BANK that filed it in the wrong court??!!! I am still scratching my head!
That ruling basically was as if the court said, "The BANK filed the wrong type of action in the wrong venue, that we, the court cannot jurisdictionally handle, and despite the homeowners many protests over 6 months that the entire foreclosure was NOT done according to statute and contract as this state says it must be, and that U.S. Bank National Association even claimed it holds no interest in the property, nor did they even file the lawsuit, nor do they even have any knowledge of the lawsuit..." (it was the Loan Servicer, Specialized Loan Servicing LLC, who filed the lawsuit, which constitutes a "Fictitious Plaintiff...see Black's Law Dictionary's definition), "...so we, the court are going to grant the BANK what they ask for even if they broke all the rules and many laws...and rule against the homeowner."
It just does not make sense, yet is typical of rulings against homeowners fighting foreclosure cases.
I have to ask, Why didn't the court on its OWN MOTION, remand the case to a higher court in which the relevant issues would be heard...or better yet, why did the court not dismiss the case altogether and tell the bank to re-file the case in the proper venue (in which we could have had a fair chance and bringing up all the relevant arguments so intrinsic to fighting fraud and wrongful foreclosure???) The unfavorable ruling in our UD was not for a lack of trying, or for bringing up the proper issues. We raised issues that are allowable by CA law that can be raised (per the CA Judges Benchguide and CA law). The problem is that CA courts don't typically listen to the arguments raised by "homeowners"...with or without an attorney. Something needs to change! That is just not right!
The ruling was baffling to say the least. Immediately after the unfavorable ruling, we filed an Appeal Application to start the appeal process on the same day as a Motion to Reconsider the final ruling...the Motion was denied, but the appeal is still moving forward. within one week, we filed for an Exparte hearing in which we had a separate doc that could have been considered separately should the Exparte hearing be denied called a Stay of Enforcement of Judgment Pending the Outcome of Appeal...both were denied for the reason that the situation was not deemed urgent in nature (what part about facing homelessness due to wrongful eviction is NOT URGENT???) Oh well...that's the court system for you. We are praying that U.S. Bank NA's attorneys do not move forward with the eviction (which so far, they have not done the slightest thing to facilitate...that's not to say they won't). We are proceeding ahead with the appeal. We will keep you all posted as to what happens next.
What I hope to do is to allow others to read what we have done and are doing in our case for inspirational purposes...if anything at all, for others to learn from our mistakes and possibly even for "comic relief" if they want to laugh with us on some of the problems we have had. I really don't care if I am laughed at. This really and truly is no laughing matter, but is very serious and tragic. It affects people's lives adversely everyday.
I do realize that many people read these blogs who are on the side of the banks...but I am not concerned. If this information falls into the hands of even one good person who is either fighting against fraudulent, wrongful and illegal foreclosure themselves or an attorney representing homeowners fighting against or educating others on foreclosure, then this post was worth the effort and time.
I still welcome emails from others who wish to ask me about my case: firstname.lastname@example.org
***This is by no means "legal advice", and may not be construed as such. This is for informational purposes only.***