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I am
merely an attorney who like so many others is overwhelmed by the
onslaught of millions of defaults, modifications, foreclosures, trustees
sales, notices to vacate ,unlawful detainers and sheriff’s lockouts.
Our
legal system is a rigged game favoring the capital of a capitalist
system. In California a nonjudicial state a foreclosure can occur on the
mere word of a lender without the original note or assignment of the
original deed of trust. A then former homeowner can then be evicted by
giving notice to vacate constructively (without notice) have a summons
“Posted and Mailed” (again no actual notice) a default judgment taken
(no trial) and a writ issued and the Sheriff’s instruction to evict
issued and enforced.
I am
about fighting this process, by 1. providing as much information as
possible to allow homeowners to fight this process and 2. by litigation
to protect those rights allegedly guaranteed by our constitution.
While I
am an attorney the sheer number of cases no individual firm that I know
of is capable handling competently. Most all non-profit foreclosure and
legal aid service can provide only limited services. We have much to
talk about this year as we push forward. By all accounts, the economy,
the dollar, the foreclosures, the job situation etc are all getting
worse by the minute.
Even if
Obama is a magician it will be 2 years before there is a glimmer of
hope. The homeowner aid programs are window dressing. Even the Sheila
Bair one from FDIC/Indy Mac while well-intentioned does little for most
homeowners. The ONLY hope for homeowners and the only hope for our
economy is if we face the music and take the free market enthusiasts at
their word, to wit: everyone agrees they artificially inflated real
estate values and those values are still too high for the market to
support. The only reason the “values” are stated so high is that the
sellers are still deluding themselves in their asking prices. There is
at least another 20% to go. As the Niel Garfield Continuum says, we are
only in about the 2nd or 3rd inning of a 9 inning game that might go
into overtime. http://www.thestopforeclosureplan.com/Contact.html
Loan
Mod’s that leave homeowners under water simply will not work. People are
not that stupid. It is easier to walk from the house and rent or buy
another at real (lower) values.
Thus
Litigation against the lender plan is the only viable option — get rid
of the note, obligation and mortgage altogether or at least force a
modification that will bring the obligation to around 80% of true fair
market value. Only a credible threat to the financial services sector
pushing foreclosures will result in this relief. The threat comes from
understanding and enforcing the basic law applicable to these mortgages —
they screwed up and now they want borrowers to sign new paper that
clears up their screw up and leaves the borrower in a horrible position.
CALIFORNIA
LEGISLATURE FINDINGS
1.
Recently, the California Legislature found and declared the following in
enacting California Civil Code 2923.6 on July 8, 2008:
(a)
California is facing an unprecedented threat to its state economy
because of skyrocketing residential property foreclosure rates in
California. Residential property foreclosures increased sevenfold from
2006 to 2007, in 2007, more than 84,375 properties were lost to
foreclosure in California, and 254,824 loans went into default, the
first step in the foreclosure process.
(b) High
foreclosure rates have adversely affected property values in
California, and will have even greater adverse consequences as
foreclosure rates continue to rise. According to statistics released by
the HOPE NOW Alliance the number of completed California foreclosure
sales in 20'07 increased almost threefold from 2002 in the first quarter
to 5574 in the fourth quarter of that year. Those same statistics
report that 10,556 foreclosure sales, almost double the number for the
prior quarter, were completed just in the month of January 2008. More
foreclosures means less money for schools, public safety, and other key
services.
(c)
Under specified circumstances, mortgage lenders and servicers are
authorized under their pooling and servicing agreements to modify
mortgage loans when the modification is in the best interest of
investors. Generally, that modification may be deemed to be in the best
interest of investors when the net present value of the income stream of
the modified loan is greater than the amount that would be recovered
through the disposition of the real property security through a
foreclosure sale.
(d) It
is essential to the economic health of California for the state to
ameliorate the deleterious effects on the state economy and local
economies and the California housing market that will result from the
continued foreclosures of residential properties in unprecedented
numbers by modifying the foreclosure process to require mortgagees,
beneficiaries, or authorized agents to contact borrowers and explore
options that could avoid foreclosure. These Changes in accessing the
state’s foreclosure process are essential to ensure that the process
does not exacerbate the current crisis by adding more foreclosures to
the glut of foreclosed properties already on the market when a
foreclosure could have been avoided. Those additional foreclosures will
further destabilize the housing market with significant, corresponding
deleterious effects on the local and state economy.
(e)
According to a survey released by the Federal Home Loan Mortgage
Corporation (Freddie Mac) on January 31, 2008, 57 percent of the
nation’s late-paying borrowers do not know their lenders may offer
alternative to help them avoid foreclosure.
(f) As
reflected in recent government and industry-led efforts to help troubled
borrowers, the mortgage foreclosure crisis impacts borrowers not only
in nontraditional loans, but also many borrowers in conventional loans.
(g) This
act is necessary to avoid unnecessary foreclosures of residential
properties and thereby provide stability to California’s statewide and
regional economies and housing market by requiring early contact and
communications between mortgagees, beneficiaries, or authorized agents
and specified borrowers to explore options that could avoid foreclosure
and by facilitating the modification or restructuring of loans in
appropriate circumstances.
2.
“Operation Malicious Mortgage’ is a nationwide operation coordinated by
the U.S. Department of Justice and the FBI to identify, arrest, and
prosecute mortgage fraud violators.” San Diego Union Tribune, June 19,
2008.
3. “Home
ownership is the foundation of the American Dream. Dangerous mortgages
have put millions of families in jeopardy of losing their homes.” CNN
Money, December 24, 2007.
4.
“Finding ways to avoid preventable foreclosures is a legitimate and
important concern of public policy. High rates of delinquency and
foreclosure can have substantial spillover effects on the housing
market, the financial markets and the broader economy. Therefore, doing
what we, can to avoid preventable foreclosures is not just in the
interest of the lenders and borrowers. It’s in everybody’s best
interest.” Ben Bernanke, Federal Reserve Chairman, May 9, 2008.
5. “Most
of these homeowners could avoid foreclosure if present loan holders
would modify the existing loans by lowering the interest rate and making
it fixed, capitalizing the arrearages, and forgiving a portion of the
loan. The result would benefit lenders, homeowners, and their
communities.” CNN Money, id.
6. On
behalf of President Bush, Secretary Paulson has encouraged lenders to
voluntarily freeze interest rates on adjustable-rate mortgages. Mark
Zandl, chief economist for Mood’s commented, “There is no stick in the
plan. There are a significant number of investors who would rather see
homeowners default and go into foreclosure.” San Diego Union Tribune,
id.
7.
“Fewer than l%• of homeowners have experienced any help “from the
Bush-Paulson plan.” San Diego Union Tribune, id.
8. The
loss belongs where it was created — on Wall Street and Main Street Banks
that rented their charter to Wall Street operatives who caused an
unprecedented collapse of loan underwriting standards and crossing the
line into fraud, forgery, and creation of false documentation. Companies
SHOULD fail. Banks SHOULD fail. Borrowers CANNOT fail — because they
are the backbone of the country and the economy.
9. There
are plenty of lenders, investment bankers and money managers who did
not play the game and are perfectly healthy. Bailout money should go to
the players who played by the rules and are healthy. They are the ONLY
ones who can and will lend, thus freeing up, somewhat, the tightening
death grip of no credit and thus no commerce.
When
title to the property is still in dispute ie. the foreclosure was bad.
They (the lender)did not comply with California civil code 2923.5 or
2923.6 or 2924. Or the didn’t possess the documents to foreclose ie. the
original note. Or they did not possess a proper assignment 2932.5. at
trial you will be ignored by the learned judge but if you file a Motion
for Summary Judgmentevans sum ud
template notice of Motion for SJ
TEMPLATE Points and A for SJ Motion
templateDeclaration for SJ
TEMPLATEProposed Order on Motion for SJ
TEMPLATEStatement of Undisputed Facts
you can force the issue and if there is a case filed in the Unlimited
jurisdiction Court the judge may be forced to consider title and or
consolidate the case with the Unlimited Jurisdiction Case
2nd amended complaint (e) manuel
BAKER original complaint (b)
Countrywide Complaint Form
FRAUDULENT OMISSIONS FORM FINAL
sample-bank-final-complaint1-2.docx
California stop foreclosure and get your
own shortsale COMPLAINT
elderabusecomplaint
And in some cases an injunction is in order
Foreclosure injunction TRO
and a Lis Pendence
Lastly I am devoted to fighting this process by 1. Providing as much
information, pleadings, discovery, publication of relevant cases as
possible to allow homeowners to fight this process 2. Through the
judicial process attempt to protect those rights allegedly guaranteed by
our Constitution.Southern California
