The below article comes from an attorney in California that was found on a content generating site. It looked like good information so decided to pass it along. As posted here, it is intended for entertainment purposes only…
Link to source article below…
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Why Robo-Signatures Are Illegal in California and Other Non-Judicial Foreclosure States
Everyone in America has heard of Robosigners by now. But somehow, in a majority of states (the 27 non judicial foreclosure states), qualms exist about whether this practice is “okay” simply because the matter does not go to court. The clear answer, despite what the banks have said, is no — absolutely not.
Because the topic has not gotten the treatment it deserves, I will gladly do the job. The following are by no means a complete list, but are the most clear LEGAL reasons (setting aside pure moral questions and the U.S. Constitution) that the Robo-Signer Controversy will entitle hundreds of thousands of homeowners wrongfully foreclosed and evicted to sue in non judicial foreclosure states. Briefly, Robo Signers are illegal in California because fraud cannot be the basis of clear title, trustee’s deeds following Robo Signed sales are void as a matter of law, notarization is a recording requirement for many of the documents, which we also know was often botched, and most importantly because robo signed falsifications ARE meant for use in court, including unlawful detainers and bankruptcy matters.
1. Clear Title May Not Derive From A Fraud (including a bona fide purchaser for value).
In the case of a fraudulent transaction California law is settled. The Court in Trout v. Trout, (1934), 220 Cal. 652 at 656 made as much plain:
“Numerous authorities have established the rule that an instrument wholly void, such as an undelivered deed, a forged instrument, or a deed in blank, cannot be made the foundation of a good title, even under the equitable doctrine of bona fide purchase. Consequently, the fact that defendant Archer acted in good faith in dealing with persons who apparently held legal title, is not in itself sufficient basis for relief.” (Emphasis added, internal citations omitted).
This sentiment was clearly echoed in 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279 at 1286 where the Court stated:
“It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly, unfairly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties.” (Emphasis added).
Hence, if forged Robo Signed signatures are used to obtain the foreclosure, it CERTAINLY makes a difference in California and other non-judicial foreclosure states.
2. Any apparent sale based on Robosigned documents is void – without any legal effect – like Monopoly Money.
In Bank of America v. LaJolla Group II, the California Court of Appeals held that if a trustee is not contractually empowered under the Deed of Trust to hold a sale, it is totally void. Voidness, as opposed to voidability, means that it is without legal effect to begin with. Title does not transfer. No right to evict arises. The property is not sold.
In turn, California Civil COde 2934a requires that the beneficiary execute and notarize and record a substitution for a valid substitution of trustee to take effect. Thus, if the Assignment of Deed of Trust is robo-signed, the sale is void. If the substitution of trustee is robo-signed, the sale is void. If the Notice of Default is Robo-Signed, the sale is void.
3. These documents are not recordable without good notarization.
In California, the reason these documents are notarized in the first place is because otherwise they will not be accepted by the County recorder. Moreover, a notary who helps commit real estate fraud is liable for $25,000 per offense.
Once the document is recorded, however, it is entitled to a “presumption of validity”, which is what spurned the falsification trend in the first place. Civil Code section 2924. Therefore, the notarization of a false signature not only constitutes fraud, but is every bit intended as part of a larger conspiracy to commit fraud on the court.
4. The documents are intended for court eviction proceedings.
A necessary purpose for these documents, AFTER the non judicial foreclosure, is the eviction of the rightful owners afterward. Even in California, eviction is a judicial process, albeit summary and often sloppily conducted by judges who don’t really believe they can say no to the pirates taking your house. However, as demonstrated below, once these documents make it into court, the bank officers and lawyers become guilty of FELONIES:
California Penal Code section 118 provides (a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.
Penal Code section 132 provides: Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.
The Doctrine of Unclean Hands provides: plaintiff’s misconduct in the matter before the court makes his hands “unclean” and he may not hold with them the pristine remedy of injunctive relief. California Satellite Sys. v Nichols (1985) 170 CA3d 56, 216 CR 180. Califfornia’s unclean hands rule requires that the Plaintiff not cheat, and behave fairly. The plaintiff must come into court with clean hands, and keep them clean, or he or she will be denied relief, regardless of the merits of the claim. Kendall-Jackson Winery Ltd. v Superior Court (1999) 76 CA4th 970, 978, 90 CR2d 743. Whether the doctrine applies is a question of fact. CrossTalk Prods., Inc. v Jacobson (1998) 65 CA4th 631, 639, 76 CR2d 615.
5. Robo Signed Documents Are Intended for Use in California Bankruptcy Court Matters. One majorly overlooked facet of California is our extremely active bankrtupcy court proceedings, where, just as in judicial foreclosure states, the banks must prove “standing” to proceed with a foreclosure. If they are not signed by persons with the requisite knowledge, affidavits submitted in bankruptcy court proceedings such as objections to a plan and Relief from Stays are perjured. The documents in support are often falsified evidence. Conclusion
Verified eviction complaints, perjured motions for summary judgment, and all other eviction paperwork after robo signed non judicial foreclosures in California and other states are illegal and void. The paperwork itself is void. The sale is void. But the only way to clean up the hundreds of thousands of effected titles is through litigation, because even now the banks will simply not do the right thing. And that’s why robo signers count in non-judicial foreclosure states. Victims of robosigners in California may seek declaratory relief, damages under the Rosenthal Act; an injunction and attorneys fees for Unfair Business practices, as well as claims for slander of title; abuse of process, civil theft, and conversion.
SOURCE: Content4Reprint.com
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As a former employee of two trustee firms, two banks and two finance companies (who says good things always come in threes?), I would say that the crux of the matter is that some individuals are months, even years, past due on their loans, aren’t paying for them and are not willing to be foreclosed upon. Neither of the NW Trustee services employees mentioned are robosigners.
Racketeering is illegal and so is filing a false and fraudulent mortgage assignment. Its identity theft. In Bank of America vs Duran (sixth district court of appeals) where the Judges are involved in obstruction of justice, and the lawyers on fraud, and theft of houses.
Thanks for sharing this, hadn’t seen it before and it’s food for thought
But we can’t loose sight of the real dis-interest on the part of those who are sworn to protect the citizenry of this counrty at all levels, but especially the local county-level judiciary and district attorney. If the homeowner is already behind on their payments, they merely look at these things as a “technicality.” This then begs the question: Where does the “technicality” end and the “criminality” begin?
Have you looked at the elements of fraud? Citing all the case law in the world on fraud won’t help you if you can’t establish that the underlying act is fraudulent. And you’ve been skirting the issue. The issue is whether an act of robo-signing satisfies all the elements of fraud, including intent to defraud. What is the difference if I sign a doc with my hand or if I push a button and an electric robo-hand signs it? None, if there is no intent to defraud.
Just because something is signed by a robot doesn’t mean it’s fraudulent. Where the signature is authorized and the substantive (rather than procedural) facts behind the documents are true, there is no fraud and there is no detriment.
The thing is, if parties to a loan sale contract intend to transfer the loan, their intent will be given effect even if thy mess up the transfer process somewhere. Yes, there may be fraud in some select instances, but it’s not a simple as saying that every act of robo-signing is fraudulent.
@Judge…I’ve been reading a few article that go to your point. Appellate courts in several States have ruled that the note holder (typically MERS), despite having notes being assigned in blank, do indeed have a security interest in the underlying mortgage note and loan, and therefore have standing as it relates to bringing and enforcing foreclosure actions.
I do not necessarily agree with those positions as the banks have invented new mechanisms (MERS) that thwarts the ability for County agencies to enforce their provisions requiring all title exchanges to be publicly recorded and fees paid. Indeed, some Appellate courts have ruled in the opposite direction. Uncertainty exists. This is obvious. And, until these matters are negotiated and settled, as the 50 AG’s are presently doing, this mess will continue. The banks are reported to be playing “hard-ball” as this process is being played out. One thing we can all expect is that these matters will not be settled any time soon.
Every State is different. What constitutes fraud in one State, doesn’t hold true in other States. MERS is not State-centric. They operate nationally. As a result, any one court result does not necessarily oblige another court from issuing judgments or opinions, often in stark contrast to previous decisions and opinions. I often wonder why all the issues are not combined, creating a super-issue that can be argued in Federal court. I suspect the reason is that Federal laws pertaining to how MERS operates, and specifically to the issues being argued in State courts, does not exist.
MERS relies on this ambiguity, this black-hole of corporate governance to continue the scam. Add our budgetary woes to the mess and you’ll quickly understand why Federal legislators will not provide meaningful monetary relief to homeowners. Sure, they start programs like HAMP and MHA, but the banks are not required to participate in any of those programs. And indeed, they don’t. BAC, which services over half the mortgages in America, is a prime example of this. It’s all smoke and mirrors!
Why are only a few modifications made? A couple reasons. One, because the underlying MERS securities have default insurance policies that will pay the banks more money if they foreclose, rather than agreeing to a modification. Simply put, the banks are protecting their own interests and they have huge legal budgets distressed homeowners do not have. David vs. Goliath. Two, it may be illegal for the bank to modify a MERS securitized loan because that would be contrary to their existing institutional investor contracts. And those inst. investors have a big legal budget, too.
So what are distressed homeowners to do? In many instances, they’ve been defrauded not only through robo-signing, but also through unfair and illegal market manipulation related to poor underwriting guidelines that super-heated the real estate market causing prices to rise at a record breaking pace. Even Alan Greenspan warned the Fed of this “market condition” years ago. And, the States have a mixed record of granting relief. Mass joinder law suits have appeared that go to these issues. And, individual homeowners have to [initially] pony up several thousand dollars to join them. If the suits continue, it is very likely the Plaintiff’s will have to invest even more money to continue the suit, that can go on for years without any guarantee the foreclosure process will be halted as the case winds its way through the court systems. The only deterrent to the banks is the filing of a Lis Pendens, a “cloud” on the title of your home that MIGHT inhibit buyers of distressed properties while the mass joinder or bankruptcy trials goes on.
Our legislators have let us down…big time!
Nice
IT IS ABOUT TIME THE AMERICAN PEOPLE TOOK THEIR COUNTRY BACK FROM THE SISNISTER, MULTINATIONAL CRIMINAL TERRORISTS WHO HAVE HIJACKED IT AND ARE HOLDING ALL OF US HOSTAGE WITH FINANCIAL TERROROSM VIA THEIR PERPS LIKE THE FEDERAL RESERVE BANK AND THE BANKSTER/WALL STREET CABAL, WAKE UP AMERICA, Watch the KEISER REPORT TODAY at keiser report.com. DEATH TO THE IMPERIALIST PLUTOCRACY/OLIGARCHY, THIS IS A TYRANNY THAT OPPRESSES ITS OWN PEOPLE. GET UP AMERICA, STAND UP FOR YOUR RIGHTS. FOR THE LOVE OF GOD. WHY ARE WE NOT ALL FLOODING THE STREETS OF OUR CAPITALS AND WASHINGTON D.C? WHAT MORE PROOF DO WE NEED THAT THERE IS A FASCIST COMMUNIST DICTATORSHIP THAT IS TRYING TO DESTROY AND BANKRUPT US AND OWN NOT ONLY THE UNITED STATES OF AMERICA, BUT THE ENTIRE WORLD VIA DEBT CREATION. WAKE UP PEOPLE. STOP THE VICTIMIZATION BY THE CRIMINAL ELITE AND THEIR CRIMINAL PERPS, THE MULTINATIONAL BANKSTERS AND THE MULTINATIONAL CORPS.. BANK OF AMERICA, WHICH IS NOT EVEN AN AMERICAN OWNED BANK AND GE DO NOT EVEN PAY A DIME OF INCOME TAX IN THE USA. THEY HIDE THEIR WEALTH THEY MAKE HERE IN AMERICA INTO MANY OVERSEAS TAX HAVENS. WATCH RT NEWS AT RT.COM. OUR U.S. MEDIA IS A SHAM AND IS OWNED BY THE OLIGARCHS. THE U.S. MEDIA IS A NEW WORLD ORDER TRICK. TIME TO TAKE A LOOK OUTSIDE OF THE BOX AMERICA AT THE ALTERNATIVE MEDIA.
I could not agree more. I consider Jeff Stenman of NW TRUSTEE SERVICES one of the biggest Robo-signors EVER! He will be giving a deposition very soon. He, along with his sister company, ROUTHE, CRABTREE and OLSEN! Someone is going to get them on the stand. Just a matter of time. They think they are so smart. It is not that hard to be one step ahead of them! DO YOUR HOMEWORK PEOPLE…. FRAUD IS FRAUD!
Jeff Stenman with his chicken scratch signature signed the Appointment of Successor Trustee with NO date that he signed it. The notary did sign and dated her part. He also signed the Trustee’s Deed, there was a date he signed. What about Vonnie McElligott from NW Trustee Services, would this person also be considered a robo-signer? Routh, Crabtree, etc did the paperwork to lift our BK stay. They produced an Allonge To Note signed by another robo signed of Herman John Kennerty. I am glad to hear that a depo will be taken–do you know when and by whom? Very interested.
So what is the latest on this. Now that Nevada is going to set a precedant on going after the robosigners, let’s hope it rubs off in Washington State
Very well put! It is far time that the judicial system ‘grow a pair’ and actually hold these people accountable.
yea…soak them in miracle grow!