Obtaining Due Process in Non-Judicial Foreclosure States

By George W. Mantor

RISMEDIA, March 16, 2010—Things are starting to get really ugly out here on the front lines. The banksters latest tactic has them confirming in writing that the homeowner’s eligibility for a modification is being considered while secretly continuing to foreclose.

The homeowner breathes a huge sigh of relief and waits….and waits….and waits. Then comes a knock on the door and the homeowner is out on the street. And, in more and more cases, the borrowers are not even being served with notice as required by law.

Anyone, and I mean anyone, can record a notice of default, wait the appropriate amount of time, and file a notice of sale; take these two documents to court and get an unlawful detainer.

The system is being abused by third parties who’s only interest in the property is the desire to collect on credit default swaps.

One way to advance awareness of the problem of pretender lenders would be to record these notices on the homes of all of our congressmen.

There is no judicial review, no oversight and, as a result, no due process even for those who have done nothing wrong; and nowhere is anyone considering the rights of the true beneficiary.

There is no review of the legitimacy of the foreclosure, and unless the borrower is willing to go to court and fight, there is no stopping the foreclosure.

And, with more borrowers rising up to fight their illegal foreclosure, the courts are becoming more crowded and judges are becoming impatient, often dismissing the borrower’s case without even a preliminary review of the facts.

In their view, the purpose of non-judicial foreclosure is to provide a quick and inexpensive means for the lender to remedy a default. The borrower agreed to non-judicial foreclosure when the loan documents were signed. End of challenge; end of case.

California, like 29 other states, is a non-judicial foreclosure state. Rules of individual states very widely and you should only use this as a guide for examining applicable laws and procedures in your state. I cannot over state the importance of having an experienced attorney as a resource.

In California, judges have been isolating on a small portion of the California Civil Code, 2924, to the exclusion of other applicable law, and have been dismissing “produce the note defenses” on the grounds that 2924 contains “no produce the note” requirement.

The stated intention of the code is: “(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser.”

The Courts, in their haste to apply the first purpose, are ignoring the second and third purpose of the Code. There is now a substantial body of evidence of wrongful foreclosures by entities lacking both authority and justification to do so.

Homeowners who have never been late on a payment have been evicted while others, negotiating a loan modification, have met the same fate.

Noting the opportunity created for fraud in a non-judicial foreclosure state, judges should be particularly wary of the potential for organized crime. Now comes evidence that foreclosure mills are simply manufacturing and illegally backdating documents.

Courts are making the assumption, unsupported by facts, that the allegations contained in the notice of default and notice of sale are truthful.

And, how can a properly conducted sale be final between the parties if the party of interest isn’t involved. What about that individual?

2924 isn’t intended to allow a trustee to act against the interests of the beneficiary.

The court should want to protect its own interests against a fraud upon the court by simply administering the basic judicial procedure that requires parties who come before the court to identify themselves.

Nor are foreclosure statutes intended to be exclusive. It cannot be the intention of non-judicial foreclosure procedure to deny aggrieved parties access to remedies or trump other rights intended to protect consumers.

2924 by its own terms, looks outside of the statute to the actual obligation to see if there was a breach. Being entitled to foreclose non-judicially under 2924 can only take place “after a breach of the obligation for which that mortgage or transfer is a security.”

This brings us to the Uniform Commercial Code, the essence of which is replicated in almost every state.

Under California Commercial Code 3301, a note may only be enforced if one has actual possession of the note as a holder, or has possession of the note, not as a non-holder, but with holder rights.

If there is no possession of the note or possession was not obtained until after the notice of sale was recorded, it is impossible to trigger 2924.

And, if the note is unenforceable under Article 3, there can simply be no breach.

Simply rubber stamping an illegal foreclosure is a far cry from due process, and until enough judges get it, we are going to have to show judges how financial intermediaries are gaming the system and committing fraud upon the court.

Lawyers say, “If you have the law on your side, you pound the law; if you have the facts on your side you pound the facts; and if you have neither, you pound the table.”

You have the law and the facts on your side, but if you do not present them adequately, the banksters will beat you simply by pounding the table.

Continue reading here…

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Comments
4 Responses to “Obtaining Due Process in Non-Judicial Foreclosure States”
  1. charlesonair says:

    FEDERAL COURT JUDGE CAROLYN DELANEY & WELLS FARGO BANK COMPLICITE IN FRAUDULENT DOCUMENT COVER UP.
    5, JULY 2013 WRITER
    There has been a lot of media coverage about the Foreclosure Mills and Robo-Signers
    Judges are ignoring facts entered into evidence and ruling in favor of the “servicers” who are represented by attorneys who have no standing in their Courts. Judges have been ignoring falsified assignments of mortgage- which are a Fraud Upon The Court. Why??
    On May 11, 2010, Lamont Johnson a Sacramento, California picky pay loan victim filed an action against Wachovia Bank FSB and its agents in the Northern District of California. Facing foreclosures and evictions by Wells Fargo Bank Johnson with little cash attempted to become a part of a pending Class Action case filed in the Northern District before Judge Jeremy Fogel (Mandrigues v. World Savings Bank, Inc., et al.) Upon Filing his case, Johnson immediately served Wells Fargo banks, Unlawful Detainer Attorney, Fred Kaiser. Wells Fargo Attorney Kaiser ignored the complaint. Johnson’s case was subsequently transferred from the Northern District to the Eastern District of Sacramento on October 21, 2010 Case NO. 2:10-cv-02839, Johnson vs. Wachovia Bank FSB et al. Johnson initially filed his case Pro Se and later hired Attorney Roxanne Mosley. Mosley represented Johnson for a short period of time eventually abandoning Johnson’s case.
    On or about August 31, 2011 Johnsons case came before newly appointed Eastern District Court Judge Carolyn Delaney. October 6, 2011 Delaney filed an Order to Show Cause. On October 21, 2011 Johnson filed a Substitution of Attorney and a response to the Delaney Order to show Cause. Just entering the case, Johnson had been requesting from Delaney time to restructure and update his claim because there were defects in his First amended complaint and so much more violations that had occurred since Johnson’s original filing. Delaney denied Johnson that opportunity and on April 11, 2012, Document Query 46, Delaney ordered Johnson to Serve on Defendants Wells Fargo Bank Johnsons defective complaint drafted by Johnson’s previous Attorney Mosley. Defendants Wells Fargo Bank after being served immediately filed a Motion to dismiss. Delaney thereafter decided on her own and in violation of her oath, her duty and the law, set Johnsons case on a course to intentionally dismiss his case.
    As Johnson filed his opposition to Defendant Wells Fargo Banks, Motion to dismiss, Johnson attached his proposed Second amended complaints to his answers, despite Delaney’s attempt to stop him from repairing his claims. Johnson added claims of Quiet Title, Racketeering under Rico, Mail Fraud, Wire Fraud, Conspiracy to foreclose using false and fraudulent document and affricatives. Johnson attached documented evidence showing that Wells Fargo Bank employees robo-signed and used forged and false documents to foreclose. Some of Johnsons attached evidence show that documents were notarized but not even signed. Johnson even attached documents that were back dated. To top it off, Johnson showed that defendants made a material alteration on his Deed of Trust for his Yorktown Property. It was changed from its original form and filed with the wrong address. Johnson’s Yorktown property Deed of Trust clearly illegally had an unreferenced attachment to it in an attempt to repair the defect in the legal description. The attachment was done after Johnson signed the contract. What was most difficult for Johnson to deal with was that he was disabled and going through a major depression and stress at the time and seeking counseling. Johnson always informed Delaney in his documents to be patient with him because he was going through this and it will take him more time to complete his Second Amended complaint. Delaney ignored Johnson’s documents.
    On September 12, 2012 Delaney moved forward with defendant Wells Fargo’s Motion to dismiss trail. Transcripts show that District Court Judge Delaney conducted the trial to look procedural, but it was a sham trial. Despite all the evidence of fraud , and serious causes of actions Johnson claimed, Delaney intentionally and in violation of her oath and Duty suppressed all Johnson’s arguments, case law, arguments and evidence and refused at the hearing to allow any allegations of fraud to be put on record. Delaney asked both Johnson and Defendants Wells Fargo one main question. What is your legal theory? Delaney thereafter dismissed Johnson’s unfinished second amended complaint on the spot.
    The mistake that District Court Judge Delaney made was that she drafted, filed and mailed fraudulent Findings and Recommendations conclusion order #65 that dismissed Johnson’s case by intentionally misrepresenting Johnson’s legal theory and by suppressing Johnson’s legal arguments and Fraud evidence that were attached to his complaint. Delaney intentionally drafted her order to construe around case law and evidence Johnson presented as if they did not exist. District Court Judge Delaney knew of Defendant Wells Fargo Banks fraudulent activities. They were common knowledge. Delaney’s employer along with 49 other States Attorney Generals, were part of a nationwide Class Action which identified the same fraudulent conduct by these same defendants. Delaney intentionally suppressed Johnson’s evidence because she did not want a Pro Se Plaintiff (Johnson) to win his case. District Court Judge Delaney knew that if she acknowledged verbally or in writing the fraud that she would be required to leave Defendants Wells Fargo Bank right where they stand without a defense. Delaney refused to allow this to happen as duty required her to do. In fact, in Johnson’s current appeal, he claims that the District Court altered the trial transcripts when it found out he was going to appeal the decision. All allegations are on the online Pacer cite. The Courts suppression of the banks fraud is clear. Johnson’s appeal outlines the Courts legal violations. Johnson is currently awaiting the appeals Court ruling in the ninth Circuit in Sacramento, California. Johnson believes that the appeals Court will help the District Court Judge cover up her fraudulent conduct. Watch for yourself. This will make Johnson a victim again and never hold the banks liable. In California, no person has won a Quiet Title Claim in our Eastern District Court. This can only be intentionally done and created by the District Courts own agenda policy because it is not by law. Johnson filed documents in the Appeal Courts that show that The District Court Judge was acting unlawfully. Johnson showed that the Judge regularly dismisses Pro Se Plaintiffs cases whom showed the Court Fraudulent documents. The Courts are trying to stop the flood of cases being filed by violating the Constitutional right to a trial of the Plaintiffs even when it sees the fraudulent documents. It is not suppose to do this. This is not the Courts job and it is illegal.
    The worst thing about all of this, is that Delaney ignored the basics of fraudulent documents. She actually ignored evidence that Johnson showed her that there was 2 Foreclosures on the same property. The property was foreclosed on by the Homeowners Association and the changed title. The property was then foreclosed on by Wells Fargo Bank using Johnson’s name. The Court saw all the documents , ignored them and decided in favor of Wells Fargo Bank when by law does not say the same. Elementary law states when the Court is presented with the Fraud, it MUST leave the defendants where they are. The Court Cannot aid the Defendants in an illegal transaction as Delaney did here. Go to Johnson v Wells Fargo Bank Ninth District Court of Appeals in California. Case # 12-17393.

  2. charles says:

    The next housing shock
    FEDERAL COURT JUDGE & WELLS FARGO BANK COMPLICITE IN FRAUDULENT DOCUMENT COVER UP.
    5, JULY 2013 WRITER
    On May 11, 2010, Lamont Johnson a Sacramento, California picky pay loan victim filed an action against Wachovia Bank FSB and its agents in the Northern District of California. Facing foreclosures and evictions by Wells Fargo Bank Johnson with little cash attempted to become a part of a pending Class Action case filed in the Northern District before Judge Jeremy Fogel (Mandrigues v. World Savings Bank, Inc., et al.) Upon Filing his case, Johnson immediately served Wells Fargo banks, Unlawful Detainer Attorney, Fred Kaiser. Wells Fargo Attorney Kaiser ignored the complaint. Johnson’s case was subsequently transferred from the Northern District to the Eastern District of Sacramento on October 21, 2010 Case NO. 2:10-cv-02839, Johnson vs. Wachovia Bank FSB et al. Johnson initially filed his case Pro Se and later hired Attorney Roxanne Mosley. Mosley represented Johnson for a short period of time eventually abandoning Johnson’s case.
    On or about August 31, 2011 Johnsons case came before newly appointed Eastern District Court Judge Carolyn Delaney. October 6, 2011 Delaney filed an Order to Show Cause. On October 21, 2011 Johnson filed a Substitution of Attorney and a response to the Delaney Order to show Cause. Just entering the case, Johnson had been requesting from Delaney time to restructure and update his claim because there were defects in his First amended complaint and so much more violations that had occurred since Johnson’s original filing. Delaney denied Johnson that opportunity and on April 11, 2012, Document Query 46, Delaney ordered Johnson to Serve on Defendants Wells Fargo Bank Johnsons defective complaint drafted by Johnson’s previous Attorney Mosley. Defendants Wells Fargo Bank after being served immediately filed a Motion to dismiss. Delaney thereafter decided on her own and in violation of her oath, her duty and the law, set Johnsons case on a course to intentionally dismiss his case.
    As Johnson filed his opposition to Defendant Wells Fargo Banks, Motion to dismiss, Johnson attached his proposed Second amended complaints to his answers, despite Delaney’s attempt to stop him from repairing his claims. Johnson added claims of Quiet Title, Racketeering under Rico, Mail Fraud, Wire Fraud, Conspiracy to foreclose using false and fraudulent document and affricatives. Johnson attached documented evidence showing that Wells Fargo Bank employees robo-signed and used forged and false documents to foreclose. Some of Johnsons attached evidence show that documents were notarized but not even signed. Johnson even attached documents that were back dated. To top it off, Johnson showed that defendants made a material alteration on his Deed of Trust for his Yorktown Property. It was changed from its original form and filed with the wrong address. Johnson’s Yorktown property Deed of Trust clearly illegally had an unreferenced attachment to it in an attempt to repair the defect in the legal description. The attachment was done after Johnson signed the contract. What was most difficult for Johnson to deal with was that he was disabled and going through a major depression and stress at the time and seeking counseling. Johnson always informed Delaney in his documents to be patient with him because he was going through this and it will take him more time to complete his Second Amended complaint. Delaney ignored Johnson’s documents.
    On September 12, 2012 Delaney moved forward with defendant Wells Fargo’s Motion to dismiss trail. Transcripts show that District Court Judge Delaney conducted the trial to look procedural, but it was a sham trial. Despite all the evidence of fraud , and serious causes of actions Johnson claimed, Delaney intentionally and in violation of her oath and Duty suppressed all Johnson’s arguments, case law, arguments and evidence and refused at the hearing to allow any allegations of fraud to be put on record. Delaney asked both Johnson and Defendants Wells Fargo one main question. What is your legal theory? Delaney thereafter dismissed Johnson’s unfinished second amended complaint on the spot.
    The mistake that District Court Judge Delaney made was that she drafted, filed and mailed fraudulent Findings and Recommendations conclusion order #65 that dismissed Johnson’s case by intentionally misrepresenting Johnson’s legal theory and by suppressing Johnson’s legal arguments and Fraud evidence that were attached to his complaint. Delaney intentionally drafted her order to construe around case law and evidence Johnson presented as if they did not exist. District Court Judge Delaney knew of Defendant Wells Fargo Banks fraudulent activities. They were common knowledge. Delaney’s employer along with 49 other States Attorney Generals, were part of a nationwide Class Action which identified the same fraudulent conduct by these same defendants. Delaney intentionally suppressed Johnson’s evidence because she did not want a Pro Se Plaintiff (Johnson) to win his case. District Court Judge Delaney knew that if she acknowledged verbally or in writing the fraud that she would be required to leave Defendants Wells Fargo Bank right where they stand without a defense. Delaney refused to allow this to happen as duty required her to do. In fact, in Johnson’s current appeal, he claims that the District Court altered the trial transcripts when it found out he was going to appeal the decision. All allegations are on the online Pacer cite. The Courts suppression of the banks fraud is clear. Johnson’s appeal outlines the Courts legal violations. Johnson is currently awaiting the appeals Court ruling in the ninth Circuit in Sacramento, California. Johnson believes that the appeals Court will help the District Court Judge cover up her fraudulent conduct. Watch for yourself. This will make Johnson a victim again and never hold the banks liable. In California, no person has won a Quiet Title Claim in our Eastern District Court. This can only be intentionally done and created by the District Courts own agenda policy because it is not by law. Johnson filed documents in the Appeal Courts that show that The District Court Judge was acting unlawfully. Johnson showed that the Judge regularly dismisses Pro Se Plaintiffs cases whom showed the Court Fraudulent documents. The Courts are trying to stop the flood of cases being filed by violating the Constitutional right to a trial of the Plaintiffs even when it sees the fraudulent documents. It is not suppose to do this. This is not the Courts job and it is illegal.

  3. Pounding the table with a damn sledgehammer are the foreclosure mills.

    The shrapnel is deadly.

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