Saturday, March 27, 2010

CALIFORNIA FORECLOSURE DEFENSE ASSISTANCE


88 Responses





  1. Brian:
    Did you go to sale? How did the court rule as far as the demurrer’s/motion to dismiss I’m sure they are throwing at you.
    email me at dnd1190@gmail.com



  2. Pushing for discovery. Many objections from NDEX, MERS, DNBTC, ONEWEST. MOTION TO COMPEL NDEX DONE AND SCHEDULED EVIDENCE HEARING FOR 2-26-10.’


    HERE IS THE MEMORANDUM IN SUPPORT OF PLAINTIFFS REQUEST FOR EVIDENCE HEARING.



  3. Hi all.


    I have scheduled an evidentiary hearing and finishing my SAC. It is schedule in mid April. I am writing the memorandum with point and authorities in support of my request of the evidentuary hearing. I have filed discovery and even a motion to compel.


    All responses have been weak.


    I wrote on the process of filing a motion to compel along with the court rules.
    I hope this may help anyone in the non judicial state of California.


    b.daviesmd6605 on scrib for any documents I have found useful. It is alot of hard work, but these people are bad, and need to be held accountable.



  4. Thanks Charles and Deontos. If you comes across any complaints in which a CA judge issues the injunction for a plaintiff homeowner, please direct me to the pleadings.
    Deontos, did Brian get the TRO/Injunction?
    Judge Bufford will be leaving the bench to teach in PA later on this year



  5. Don-CA,
    BRIAN W DAVIES Plaintiff, V. NDEX WEST LLC, DEUTSCHE BANK. et al
    UNLIMITED CIVIL DAMAGES EXCESS $25,000
    DEMAND JURY TRIAL
    1. NEGLIGENCE
    VIOLATION CC § 2923.5,
    § 2924, §2015.5 ,§ 2932.5
    2. FRAUD;
    INTENTIONAL DECEIT
    3. VIOLATION OF BUS &
    P C § 17200 ET. SEQ.
    (CC § 2923.5, CC § 2924,
    CC § 2015.5, CC § 2943
    CC§2932.5)
    4 NEGLIGENT
    MISREPRESENTATION
    CIVIL CODE §1572
    5. VIOLATION OF OF
    FINANCIAL CODE 50505



  6. Don-CA,
    I know of two cases, each at the U.D. stage, that are going into discovery. Contact me directly and I’ll put you in touch with the attorneys for each. As a paralegal, I’ve helped to propound an initial and limited set for one and hope to help with the other before too long.
    Also note, the Judge Weissbrodt case in N. Cal. BK Court Caporale v. Saxon et al, Adv. No. 09-05050 is still pending in essentially a “produce the note” action.
    It is challenging out there.
    Charles Cox



  7. Anyone have a CA case, state or federal that has survived through the motion/demurrer stage and into discovery?
    I can’t find a single one.
    A BK in judge Buford’s court seems like a better option.



  8. Charles- Thanks for the response! I planned on not signing anything just yet since I hadn’t come across any similar cases than just the lost note defense.
    Located in Corona, but am willing to go where I need to for the right representation…
    Thanks again for the referral offer and response!
    Tom



  9. Tom,
    I wouldn’t sign anything until getting legal advice. When/how/where/why the note was “lost” is critical. You’ll want a thorough review of the entire process to see what options and courses of actions you might have. Should be a very interesting” case to pursue.
    Where are you located?
    Let me konw and I’ll send long some suggestions for attorneys.
    Best,
    Charles Cox



  10. In an awkward position and can’t seem to get a straight answer. We refinanced our property in 2006 and in 2009 received a letter from the title insurers requesting we re-sign all docs. The note is lost and was never recorded with the county. I can’t find precedent in such a case and am unsure if quiet itle action is the course to pursue.
    Any thoughts?






  11. Charles,
    Excellent discussion. I posted mostly for reference material. We do litigation support also, and an audit is useless if no one knows what to do with it.
    We also provide counseling up until our client must file, then we hand off to the litigator and away they go.
    I agree the AG’s PR was more fluff than anything else.
    James



  12. Dear Pantera and angry & not taking it,
    You each have valid concerns but I’d suggest using a bit of caution in each of your contentions.
    In my opinion, the AG’s approach is typical politics by someone now (how convenient) running for elected office in appearing to help the public with short-sighted scare tactics (eg SB 94). There have been a number of press releases out of their office in similar fashion in taking credit for saying a lot and doing little when it comes to form over reality (or just call it typical politics). Although it can be reasonably surmised what and where the input came from that prompted the righteous indignation all of a sudden, it certainly calls in to question, said motivation as well as the limited qualification contained in the announcement that paints an entire process with a wide and broad brush that in fact can and does help those in litigation when approached in a proper and thorough way. This reminds me of the big announcement from the AG’s office obtaining the stipulated judgment on Countrywide…what was it, $8.4 billion settlement? What have you heard on that lately? What about SB 94 and going after anyone that takes deposits by those purposting to negotiate “loan modifications”. While there were and still are a number of unscrupulous characters doing this kind of thing, the result of contending everyone doing it is a crook serves no one having scared off countless numbers of attorneys who may have been able to help clients but have elected to steer clear of any part of this process. Throwing out the baby with the bathwater for political gain? You can answer the question on your own.
    While I do forensic reviews on occasion myself, I do more demand letters QWRs and other litigation support only for attorneys and in doing so, have reviewed many half-baked and limited “audits”, especially the computer generated ones that do little to nothing more than add cost to litigation in having to review everythign again to either find the information needed or missing. Most doing these so-called “audits” have little to no experience or qualifications to do what they’re doing. Yet those that do “proper” reviews can provide an invaluable service in saving clients considerable money over attorneys having to invest substantially more time at much higher rates and with some processes and procedures that they may not themselves be fully qualified to review.
    In and of themselves, loan reviews/audits have limited use and in my opinion, should not be provided directly to clients. In my practice, I only provide them to and for attorneys.
    Pantera, in my opinion there is not much to fight (yet)…the information was just an advisory and typical scare tactics which in large part was justifiable if you read everything in context as it relates to the number of bogus mortgage audit firms compared to the few “legitimate” ones.
    Angry & not taking it any more: in 32 pages there had to be some useful information in the report regardless of the preprinted legal cites, which is what you want to do have anyway, not invent the laws and statutes. But as I stated above, reviews should be provided to the attorney for use and thoroughly reviewed as it relates, and is applicable to, your own case the attorney is trying to lay out for you. Providing these “audits” to unqualified individuals can cause more problems than not. I do not know the person/attorney you’ve named in your posting, but I would also suggest being very careful about potential defamation issues, particularly when it comes to attorneys…they can become very protective and defensive of their turf and work.
    It is therefore in my opinion, important for anyone considering utilizing the forensic review process to let their attorney make the determination whether or not it will be useful (looking into statute of limitations for most issues related to loan document reviews among other things), to what extent your case would require such information and let them qualify whomever is providing the service who is hopefully qualified, trained and experienced. This is why Brad and Neil have taken up forensic training for these reviews as well as other areas of the foreclosure defense field.
    Just my opinion FWIW. (not legal advice, I am NOT an attonrey).
    Charles Cox



  13. Pantera
    “we know who motivated this” I am not so sure that your implied motivation is correct..
    i contacted lawyer – Jennifer Hendrickson in Santa Rosa, Ca .. her useless audit, for $750 consisted of 32 pages of preprinted law info & less than 1 full [ actually 3 pages had my name & address & loan amount ] page of ANY info re; my loan docs in particular = my est 15-min time total to generate the audit. The audit was a joke & useless.
    This Lawyer Jennifer Hendrickson should be ashamed of herself.!!!!!
    and yes i had seen the ca AG info right after i got scammed .
    seem its the next wave of homeowners in need being scammed because of no guidelines in what an audit is or should encompass .



  14. CA ATTORNEY GENERAL JUMPS IN AGAINST LOAN AUDITORS–
    Has anybody seen this??
    Our attorneys are preparing a class action against State. Do you think this is wise or is there another way. Obviously, we know who motivated this, now how do we fight it??
    James Pantera, MBA



  15. “the recorded document posted on his web-page is deemed factual evidence (& proof) both under federal and California codes, especially because one year has elapsed since it was recorded.”
    So is that a good thing (the theives can’t amend it) or a bad thing? (it wasn’t challenged earlier so even if it’s fraud, it’s ok)



  16. Re: Kareem Salessi, mentioned earlier, recently made this evidentiary presentation, on a MORTGAGE FRAUD BLOG, about how his documents were forged in the purchase of a house at“28841 Aloma Ave. Laguna Niguel, Ca. 92677” in 2002: It is important to note that the recorded document posted on his web-page is deemed factual evidence (& proof) both under federal and California codes, especially because one year has elapsed since it was recorded. below is the link to the blog and his complete statement:
    • See the recorded document image on http://www.SALESSI.info, which is best proof of similar forgeries by identified individuals in the employ of: “Baldwin Mortgage, of San Mateo, Ca.”, “Southwood Pest Control”, “first team real estate, orange county Inc.”, “Coast Cities Escrow”, “Commonwealth Land Title Insurance”, “World Savings Bank, FSB.”, “Golden West Savings Association Services, Inc.”, “Wachovia…” and their lawyers, in collaboration with the corrupt Orange County Officials at the County Recorder and Assessor’s offices.


    The corrupted office of the convicted criminal O.C. Sheriff Michael Carona repeatedly refused to take any action against these deed and loan forgeries, so did the local FBI, both of which are accessories to such organized crimes by turning their backs to the crimes, and thus supporting such organized crimes.
    In Orange County, and San Bernardino Counties, California, county recorders, and assessors, have contracts with organized crimes like title companies, and banks, as in here, to record any documents emailed to the county recorders from such enterprises, without the county officials even looking at the documents, let alone checking them for faults, as it occurred here. County officials have further continued to avoid responsibility when I provided them total proof of the forgeries, as in here.


    All foreclosures, especially in these two counties, are fraudulent and in violation of countless laws, but because the “law-enforcement” is itself a part of the crime, victims are further victimized by the very people they pay for their protection from criminals like the American Credit Crime Industry (ACCI), as documented in my Orange County case # 04CC11080, where I obtained a large judgment against multiple defendants, and in my current federal case # SACV 08-01274 DOC(MLGx).


    Such Organized crimes could probably come to a halt by dismantling county recorders altogether, as I have proven them to be the crux, the core, and the main vehicle, of real estate and lending crimes in the United States. These crimes have, in the past decade, proliferated globally causing today’s national and global financial collapses, by having counterfeited over $700 trillion worth of counterfeit dollars, under many colorful disguises, only with the backing of less than $7 trillion worth of American real estate. This amounts to a U.S. based counterfeiting PONZI scheme with the PONZI Ratio ((PONZI Index (PI)) of one hundred to one, which is beyond anyone’s wildest imaginations.
    It is no wonder that “U.S. law-makers” have been corrupted, or threatened with national martial law, to pass the fraudulent bailout packages, which I saw coming, and documented, years in advance, in my 2004 lawsuit. (see pdf link attachment to http://www.salessi.info (temporary web-page). Posted by KAREEM SALESSI on 02/14 at 04:35 PM



  17. Re: Defects in NOTICE OF TRUSTEE SALE (NTS):
    I cite to this recent California Appellate opinion:
    Cal.App. 2 Dist.,2009.
    Pro Value Properties, Inc. v. Quality Loan Service Corp.
    170 Cal.App.4th 579, 88 Cal.Rptr.3d 381
    To fully utilize this staute plaintiffs should resort to
    Miller and Starr California Real Estate 3D
    § 10:198. Notice of sale—contents of the notice
    which corresponds to:
    West’s Key Number Digest, Mortgages Key Number 352 to 356
    I think due to copy laws I can’t copy their text here but I can cite the cases they cite to in that chapter:
    Hayward Lumber & Investment Co. v. Corbett, 138 Cal. App. 644, 651, 33 P.2d 41 (1st Dist. 1934).
    Tomczak v. Ortega, 240 Cal. App. 2d 902, 906, 50 Cal. Rptr. 20 (1st Dist. 1966) (notice of default recorded on March 27; reinstatement period expired June 27, 92 days later).
    Saterstrom v. Glick Bros. Sash, Door & Mill Co., 118 Cal. App. 379, 383, 5 P.2d 21 (3d Dist. 1931).
    Crist v. House & Osmonson, 7 Cal. 2d 556, 559, 61 P.2d 758 (1936) (notice included strip of property not included in deed of trust one-nineteenth size of total encumbered property).
    Other information such as extinguishment of loans can only be obtained by expensive lawsuits against lenders, through discovery process. However, even if they are discovered they manage to seal them. Alternatively they could be theroetically obtained by FOIA requests, but such reqeusts have failed. The Fed has even blocked the government to find out anything about these fraudulent mortgage pools and how they were paid for by TARP, and other concealed methods. Bloomberg’s and other big shots FOIA lawsuits have also hit the wall, since federal courts have blocked them!!!
    Who should I send the bill to for this research?



  18. Jack,
    Please provide citations of the cases you refer to where loans have been extinguished and nullified on this statute.
    I’d also suggest anyone interested, do a thorough Google or other search on Kareem Salessi and obtain results and decisions rather than relying on pleadings or other information alone.
    Charles Cox



  19. CHECK YOUR NTS:
    Defect in NOTICE OF TRUSTEE SALE:
    California Civil Code 2934(a)(b) mandates the name of BENEFICIARY to appear on the recorded, and published, notice of sale, otherwise it is void and foreclosure is void.
    Thousands of such Notices have been recorded and homes foreclosed despite this material defect. A typicalCa. lawyer is unaware of this. Judges know absolutely nothing about it,.
    WACHOVIA , and WORLD SAVINGS are two of the companies which has probably filed over 100000 of such defective NTS because of the sale of World Savings to Wachovia in 2007, and the dumping of their loans in the fraudulent mortgage pools which collapsed in 2008. As a result those loans, have actually been extinguished, and nullified, and have no legitimate beneficiaries now which is why their NTS is without beneficiary.
    This detail is well documented in the bankruptcy filings of an individual in Santa Ana, Ca. with a website at http://www.SALESSI.INFO ;
    If your NTS has this defect, check with competent class action attorneys, to reverse all the similar foreclosure filings. Jan. 25, 2010



  20. email me if your property is in california i can help you
    http://hpg-classactions.com/
    reggpac@yahoo.com



  21. Don,
    Send me your email address and I’ll send you what I have on Standing. Standing and Beneficial interest can be different issues.



  22. Are there Case law and/or statutes in CA for lack of standing, lack of beneficial interest?



  23. Here is the citation of a case of a title 18 U.S.C. Criminal Prosecution for fraudulent foreclosure and here are some of the Penal Code Sections which prescribe the criminal offense of fraudulent foreclosure:
    U.S. v. Beyer, 106 F.3d 175 (7th Cir.(Ind.) Jan 30, 1997)
    O.C. loan officer arrested in $30 million fraud
    September 11th, 2009, 11:59 am • 36 Comments • posted by Mathew Padilla
    Attorney General Jerry Brown said today his office arrested a Huntington Beach loan officer and two other men for allegedly placing consumers into $30 million worth of fraudulent loans and pocketing $1 million in illicit profits.
    Alan Ruiz
    Alan Ruiz, 28, was arrested at his Huntington Beach home late Thursday and is being held in the Orange County Sheriff’s jail.
    However, Brown’s release focuses more on Michael McConville, 39, of Simi Valley, who worked as a sales manager for Los Angeles-based mortgage company ALG, Inc. Garrett Holdridge, 23, of Palmdale, California and Texas was also arrested.
    All three worked at ALG and are being held on $2 million bail.
    According to Brown’s release:
    “McConville and his co-conspirators lured dozens of borrowers into refinancing home loans by falsely promising low interest rates and brokers’ fees, and other attractive terms. They then negotiated different terms with lenders, forged the victims’ signatures on the final loan documents and collected hefty brokers fees – ranging from $20,000 to $57,000 – that were never disclosed. Only when the borrowers received true copies of the loan documents after the refinance did they discover that their names had been forged. In total, defendants stole over $950,000 from more than 70 borrowers, leaving victims holding $30 million in loans with terms they did not agree to.”
    Michael McConville
    “After victims signed their closing papers, McConville and his associates doctored the loan documents, forged borrowers’ signatures and slipped in hefty fees that were never disclosed,” Brown said. “This was not some clerical error but a criminal conspiracy to steal nearly a million dollars from borrowers.”
    Earlier this week, Brown filed 44 criminal charges against the men, including:
    • 28 counts of grand theft, by violating Penal Code section 487, subdivision (a);
    • 14 counts of forgery, by violating Penal Code section 470, subdivision (d);
    • One count of elder abuse, by violating Penal Code section 368, subdivision (d);
    • One count of conspiracy to commit grand theft, by violating Penal Code section 182, subdivision (a)(1);
    • Three special allegations of aggravated white-collar crime in excess of $500,000, by violating Penal Code section 186.11, subdivision (a)(2); and
    • Taking in excess of $3,200,000, by violating Penal Code section 12022.6, subdivision (a)(4) and (b).
    Garrett Holdridge
    Here’s more from Brown:
    From April 2007 to October 2008, McConville and his associates provided homeowners closing documents bearing terms promised, but which the lender never approved. After homeowners signed those documents, key pages were removed and replaced with pages bearing the terms that the lender had actually agreed to. The homeowners’ signatures were forged on the replacement pages, and ALG forwarded the forged documents to the escrow company.
    Homeowners only discovered they had been defrauded when they received the final loan documents with the true terms and saw their signatures forged on disclosures of closing costs, Truth-in-Lending disclosures, loan applications and other documents. ALG often collected between $20,000 and $30,000 in undisclosed broker fees. In one transaction, they collected over $57,000 in such fees.
    As a result of this scheme, homeowners suffered devastating financial losses. Some were forced to sell their homes, come out of retirement, or tap into retirement savings. Others paid significant prepayment penalties — in one case, over $21,000. Borrowers often never received the significant amounts of cash-out they were promised.
    VICTIMS
    Michael McConville promised one couple a 5.5 percent fixed interest rate, cash-out of $58,000 and $4,500 in closing costs. Only after they signed the documents, they realized their copy did not include the pages detailing the key terms of the loan. The couple soon received loan documents from Indymac Bank and discovered their signatures had been forged and they had received a 7 percent interest rate, no cash-out, and over $50,000 in closing costs, including a $42,000 origination fee paid to ALG.
    ALG contacted a 65-year-old retired woman in July 2007 and promised her a 30-year fixed rate loan at 5.25 percent. A month later, a notary had arrived at the victim’s house with loan documents reflecting the 5.25 percent fixed interest rate. After closing, the victim discovered she had received an adjustable rate mortgage with an initial rate of 8.65percent, a $22,000 origination fee, and $2,230 in miscellaneous fees. The victim’s signature had been forged on most of the documents.
    Brown recently sued Michael McConville and his brother Sean for their part in the “Property Tax Reassessment” scam which targeted Californians looking to lower their property taxes. Tens of thousands of mailers were sent out that featured official-looking logos and demanded hundreds of dollars in payments for property tax reassessment and reassessment appeal services. The statements warned homeowners that if payments were not received by the “due date” they faced late fees or would have their file marked “non-responsive” or “ineligible for future tax reassessments.” A copy of the press release can be found at:http://ag.ca.gov/newsalerts/release.php?id=1734
    Brown has made it a top priority to combat mortgage fraud. In July, as part of a nationwide sweep, Brown filed suits against 21 individuals and 14 companies who ripped off thousands of homeowners seeking mortgage relief. In total, Brown has sought court orders to shut down 32 companies and has brought criminal charges and obtained lengthy prison sentences for deceptive mortgage consultants.
    Draft your pleadings; to detail the offenses under the Penal Code Sections and Title 18 U.S.C. Sections and bring the complaints to the County Grand Juries and Federal Grand Juries; to return criminal indictments;



  24. Christine,
    If you’ll send me your email address I’ll send you my list…I have over 30 on it and is too big to post here.
    Thanks,
    Charles
    charles@bayliving.com



  25. Thanks Abby & Charles for replying to my post. It’s nice to know that there are people out there willing to help provide information to those in need.
    I’m in Southern California, Los Angeles County to be exact.



  26. Christine,
    Let me know what part of california you are in and I may have some other suggestions for you.



  27. HolliG
    same for you. go consult a competent attorney asap.
    contact your legal aide society in your county if you cannot afford an attorney. ask if there are any attorneys doing pro bono in this area
    there are things which can be done, but you are going to have to work at this all
    Tim McCandless, ESQ is very good at handling these types of cases. search on internet for his name with the ‘ESQ’ and it should take you to his blog and contact info. He is super busy but has staff on hand to work with you. He is in California.



  28. Christine-yes, by all means consult a competent attorney immediately!!
    I have heard of cases where somebody goes away for a weekend or small vacation and comes back to find all their belongings on front lawn.
    I would think a competent attorney would file some legal papers to stop it all for you.



  29. I need help !! We had an NOD filed January 2009 and were never formally notified of this. Then there was a notice of sale stating my property was going to go to auction. We were never notified of this either. When we questioned this they stated they sent us a letter certified mail (never got) and also had a notice posted on our door (also never got). My husband just happened to call the lender to ask about a loan mod the day before the auction right before 5:00 pm. Me and my husband then had to rush to borrow money to save our house and pay the debit current. We had to be down there at the Trustee’s Office first thing the following morning to stop the auction of our property. We were paid up as of September 2009. Since this date we have not received any mortgage statements from our bank GMAC, even though we call them and advise them of this – they state they send them out. We even went so far to go down to our post office to advise them of a possible problem with receiving mail. I looked up our property again this week and they filed another NOD in Nov 2009, again without any notification to us advising us this was taking place. I work in the mortgage business so I have access to see what documents are recording against my property. However, I do not feel that I should have to look at this weekly to see if something new has been recorded against the property. Shouldn’t the Trustee (ETS) notify us in writing that these items are of record or will be recorded? We have submitted a loan mod request to the lender back in Sept. 2009, but have not had any response with an answer. Should I seek an attorney about this matter, as I believed they HAD to notify you of these things (NOD or Auction/Sale) by law? Any tips or information on our problem would be greatly appreciated.



  30. can someone please HELP …I am not in foreclosure yet and dont want to get there..my loan servicer is ONEWEST/Indymac my origional creditor was Quicken loans in 2006 . I have been denied a modification by OneWest .I applied in March 09 had never been late ,I did not make my Nov or Dec pymnt .I was contacted by Onewest and told I was approved for a trial Mod also emailed apoproval after not recieveing docs I called they said it was a system error and NO MOD which after reading all these horror stories i think im glad BUT i want to rersolve this before foreclosure .,
    after reading all these posts and more info on the web about servicers not actually owning the note ,im confused what direction to go in ..I believe there is an answer but do I need to wait until its too late or can I file something now regarding FRAUD ??? HELP PLEASE I am i California



  31. This CA judge made a very good point.
    The county recorders shows that MERS assigned the note along with the deed to the servicer. MERS has no authority to assign notes though, WTF? How can a servicer proceed with a non-judicial foreclosure. Didn’t that recorded assignment just validate that the note is now separated from the security?



  32. lis pendens is not effective in preventing a fraudulent foreclosure, especially a non-judicial one. As I formerly wrote their game is to create the appearance of a legitimate act, only to record a “TRUSTEE’S DEED UPON SALE” and they consider your house theirs.
    In federal prosecutions of RICO cases (Racketeering) only two similar fraudulent acts need to be proven to get convictions for racketeering, as they hit congressman James Trafficante with (see his interviews on YOUTUBE). however, a few major criminal banks in the past two years have each committed more that two million such similar criminal acts resulting in the theft of over ten million houses, but not a single one of them, or their executives has been hit with RICO. This means the entire crime has been prearranged to escape prosecution. In fact in 2008 the Supreme Court, in a published ruling in favor of the now fallen Wachovia, totally immunized bank employees from responsibility for banks’ criminal activities!!.
    The multimillion dollar bonuses some of these excs are receiving now is their fair share for creating this national coup de tat (as it was characterized by congressmen in the new Michael Moore film.)



  33. just to throw this out there re ca cases.
    1- lis pendens may not be effective if the bank reacquires it thru trustee sale.
    2-look for other areas of claims.. ie trustee buy a non-performing loan that is
    [in default]..hsbc got beat up in court thru doc examination or other reasons for the judge to demand doc title chain examination..assignments,sale.
    3-servicer abuse – if in bk court , cases of fraud in amounts claimed due,past due.payments not credited,forced placed ins,suspense acc,escrow acc.
    fwiw..the judges & law in ca is not so borrower friendly as most are aware.
    and good job with ground thats being covered recent posts.



  34. Abby,
    That’s very good question. California allows that an unacknowledged document that gets recorded anyway becomes constructive notice one year after recording, See Cal. Civil Code Sec. 1207. but I don’t know if that includes recording irregularities, fraudulent docs, etc.



  35. Ruby:
    James is right about the county recorders office. I found the signatures on my documents of the “vice presidents” to be fraudulent, at least 1 signature of a notary to be fraudulent and on top of that the documents were recorded even when they were in violation of (GC 27361.6) INCLUDE THE NAME OF THE PARTY REQUESTING THE RECORDING and a name and address where the document can be returned. .



  36. Good Job Abby in CA. Keep it up.
    IN fact Ms. Ruby should try to consolidate her UD immediately with her TRO lawsuit. Hopefully she will be allowed to do that.
    I don’t know your specifics and can’t give you “LEGAL-ADVICE”. What I am providing here is general information which may, or may not, be applicable to your cases. For some guidance you can get a NOLOPRESS.com book about California Grant Deeds, or “California Deeds”. Plus, CEB’s loose leaf on California Real Estate Transactions. These are available in law libraries and have samples of deeds. Nolo’s has some actual blank deeds at the back which could be hand-filled and recorded. Either way, any thing that County Recorders look at and consider recordable they record, and can act as deterrence or complete halt to the property crimes by vultures as we currently see. I have documented court crimes in multiple lawsuit. Because of judicial immunity of judges it is impossible to take any legal actions against them. And if a lawyer does that he may just as quickly lose his license.



  37. James
    Would like your opnion on the schema of recordings which Don discusses for Calif. , but for post foreclosure.
    Can anything be done post-foreclosure when there were recording irregularities, retroactive backdating to the NOD of assignments, forgeries on recordings etc.?
    At the trustee’s sale the securities trustee bought the house form itself (so not a bona fied purchaser).
    Further, the loan was done in one name, say John Q. Public, but then placed back into the trust (revocable living trust) of John M. Public.
    When forelcosure process started—trustee John M. Public was ignored, as was that trust and all foreclosure docs came in name of John Q. Public.
    As far as I am concerned, the deed etc. should still be in the trust of John M. Public.
    Note: the loan docs all came with a name that was not
    the real name of borrower, and after this was pointed out to the notary, the notary called the lender and the lender made threat that potential borrower would have to pay $8000 to have docs changed.
    Anyways, would like your opnion on what could or might be done with recordings without court.



  38. To James and Ruby
    Not to diminish the valuable instructions from James, and I am NOT an attorney, so always seek competent counsel, but this is what I did in California after being served with UD. I filed a fraud, TILA, predatory lending, wrongful foreclosure case in the California courts, then filed a Motion to Consolidate the UD with that big fraud case (since big fraud case is in unlimited civil division and UD is in limited civil). The UD judge did just that and it has been over a year now since I found the 3 Day Notice to Quit taped to my door.
    The big fraud case is moving ahead. The UD is dependent on the outcome of the big fraud case.
    I have NOT found corruptness in the California courts yet.
    That is just what I did and this is my opinion.
    James, are you an attorney here in California?



  39. Response to Ms. RUBY, of 10/24/09:
    They probably recorded one of those fraudulent documents I discussed earlier this week.
    You have 5 days to respond to the Unlawful Detainer Action (UDA), from the date you are properly served. However, instead of filing an answer, and/or a demurrer, you can instead file a NOTICE OF REMOVAL to the Federal Court of your area. TO properly do this you must pay a couple of hundred dollars to a bankruptcy, or Federal Practice, lawyer to draft it. Once you do that you file a copy of it with the UDA court (by the fifth day of service). This will block their UDA from evicting you. They will have to file a motion for remand, to which you must then reply. Meantime if you succeed in your TRO action to obtain preliminary injunction you can stop their phony foreclosure.
    With your TRO you must have also filed and recorded a Lispendens. Also, buy a certified copy of the TRO, and the injunction (if issued) from the court and immediately record them. This will give legal notice to everyone the any foreclosure would be automatically void. Record anything else that you can to protect your ownership. County Recorders’ offices are the central core of the national criminal foreclosure operations.
    Do not misss the 5 days deadline. They bought this unconstitutional and criminal California Code by paying off Ca. legislators.
    If your case is not remanded to the UDA court, you may be able to file your countersuit for quiet-title, wire-fraud, mail-fraud, bank-fraud, TILA, and a host of other things, in the Fed-Court which is a better venue than the extremely corrupted state courts.



  40. I need you Help……..
    Under a Temporary Restraing Order served on the Trustee ETS Services, GMAC Mortgage and the Auctioneer somehow I’ve received an Eviction notice from TTR Investments, inc who claims they bought my house eight days after the TRO had been issued and properly served. I called servicing and my loan has been pulled, I have to respond to their summon but, can I join their lawsuit in my lawsuit? How can I stop them from trespassing on my original case and stop the eviction or ( shut them up) Due Process means nothing to these pimps after I received their notice to vacate I faxed them a copy of the TRO now two days later they file a lawsuit in the same court. Any suggestions please respond on this board or emai me @homeownersrrealpeople2@gmail.com
    Continue to be a blessing



  41. Response to Don, of 10/22/09
    Yes Don. Good Job.
    The most well kept secret of this criminal spiderweb is the RECORDING Mafia. The entire charade that banks are playing is a musical chair to get a phony document recorded, in any name, and then to claim that they have acquired title, while they have acquired nothing; only managed to record a phony piece of paper. There is no foreclosure at all, it is only a pretense of it. This simple fraud is also backed by corrupt judges, corrupt law-enforcement, corrupt state and federal judiciary. A few good judges are forced to shut up by any means possible. They are too scared to fight the systemic corruption. They fear for their lives. The plunder is in the trillions and it costs nothing for the criminals to have anyone vanished. If you doubt this THEN read the book by Alexander Martin about government corruption at ALMARTINRAW.COM.
    If you have children, or a sibling, or wife, you can simply GRANT DEED the property to them, with a revocable deed, while reserving LIFE-ESTATE for yourself.
    In addition to the fact that none of these criminals have the Original Notes, all of the purported mortgage are completely bogus because none of the lenders ever gave any money (consideration) in return, they just counterfeited money by printing some pages of paper called PROMISSORY NOTES which are not money. The federal lending law is that they must have tendered legal currency, not counterfeit. Thus all the loans are likewise bogus.
    This counterfeiting caused people to borrow much more than the value of the property. This value is called the Cash Value per CACI 3501 (California Jury Instructions). These counterfeit moneys created the PONZI real-estate bubble which eventually burst in 2007. Now, property prices are heading back to their cash values of 1995, at a time that prices had stabilized, and before the criminals launched their new international plundering scheme.
    Also, if you manage to sell the house to a BONAFIDE purchaser and record the transfer, Then it is all over, and you are probably home free. Just don’t keep the money in a bank!



  42. James:
    You pose a very interesting scenario, as I have done what yuo are talking about. My parents predatory loan was back in 2006 and they defaulted 2008:
    N.O.D
    Assignment from MERS to servicer
    Assignment from servicer to securities trustee
    Substitution of trustee
    Through divorce, father grant deeded to mother, mother quit claim deeded to me 100% since I’m handling this for her.
    I’ve postponed T.S. which originally was scheduled for April 15th. Since I’m on title, I can now fight these bastards :-)



  43. Response to NICK on 1/15/09:
    Even the best of California’s purported real-estate attorneys do not know a jack about real-estate laws and practice. They just rip people off. Here is a house-worth of guidance free of charge:
    Nick:
    You can always file complaints with state bar’s “Office of Chief Trial Counsel”. This title is as bogus as it sounds great. All state bars, and the ABA are organized crimes, under the color of law. The licenses they issue, and the oath necessary to get them, are also as bogus, treasonous, and criminal as they sound officially honest and legal, but their members bring misery to the public, no matter on which side they are. (a few good apples like Niel Garfield can play no role as you can see below:)
    If an attorney steps out of the oath to these Mafia Bars and truly seeks justice to benefit the public he/she gets scammed, or simply disbarred. For proof, listen to some interviews of attorney Stanley Hilton, who had been Senator Bob Dole’s chief counsel. Hilton had filed a federal case in San Francisco years ago, his complaint is available on the web. The feds killed his complaint and told him that if pursues it any further he would be disbarred. What had he done? He had filed proof of the fact that 9/11 was totally engineered and performed by the insiders of the U.S. Government. He even produced copy of the executive order (signed by the president) for the destruction of the WTC buildings, Pentagon, and the PA missile.
    At this point he is lucky to have stayed alive, sine many insiders have been killed.
    Alternatively check out Ca. attorney Stephen Jagman, whose specialty was suing corrupt law-enforcement officials in landmark civil rights lawsuit. He got scammed by evidently a bogus IRS audit and then disbarred, so he couldn’t even seek his own “CIVIL RIGHTS”.
    I wouldn’t trust another lawyer who would charge you anything. The one you already paid may be honest but just a goof, but just as deadly as a crooked one.
    The best thing is, if you can, scan everything in one pdf file and provide the link to potential attorneys, and on this website, if you are sure you won’t get into trouble for defamation.
    COUNTY RECORDER ISSUES KEYS TO STOLEN HOUSES:
    All the foreclosures taken place in the past few years have been illegal because the purported beneficiaries of “NOTICE OF TRUSTEE SALE” have not had original claimed notes. The organized crime which leads everyone to believe that their foreclosures are real and valid is that they are allowed to record anything by email. So, they can record a “TRUSTEES’ DEED UPON SALE”, which is also called a “Reconveyance Deed” and claim they now have title to the house. One way to prevent this, if they have not yet done it, or even if they have already done the above fraudulent step, is to record A.S.A.P. a grant deed, to for instance your children, in a form like: I hereby grant life tenancy in fee-simple title to (child #1 and to Child #2,…) the real property at ….(description…) in joint tenancy with right of survivorship…..
    With the above example you reserve the right to live in the house as long as you live (Life-tenancy).
    Once you record this the crooks can no longer sell it because the title is no longer in your name. If they persist to steal the house from you they would have to sue you. If they do and you produce their proofs of forgeries they would lose and get lost. But it is unlikely that they would sue.
    Another thing you can record is a “QUIT-CLAIM-DEED” whereby you can grant your “whatever interest” in the property to anyone you want. If you have no legal interest you supposedly have no liability. This also makes the fraudulent foreclosures/recordings unlikely, and they would probably also need to sue you to expunge the deed. But if they do they have to prove that they have a better title interest than you did before you quit-claimed it. If they can’t they lose.
    In fact, I think that if people get together and force the shutting down of county recorder operations, all of these property theft would automatically come to a halt.
    Keep up the fight.



  44. Joseph,
    Have you already looked into Civil Code 1632?



  45. I have been embroiled in a predatory loan case for a while now. Borrowers only spoke spanish, broker forged all of the loan application docs, they had good credit but got an “adjustable” rate loan at 11.3%, with a minimum rate of 7.75% – which means the rate will never go below that, and paid out $17k plus for broker fees. Dragged to federal court by the banks and then then bludgeoned us to death with motions to dismiss and an MSJ before discovery ever started! Judge held that equitable tolling shouldn’t apply because borrowers were “on notice” when they sought a loan mod in Jan 2008. Now we’re headed back to state court to argue rescission by fraud. I’ve been arguing that broker is original lender’s agent and therefore liable for the forgeries/fraud. Anyone out there with similar litigation let me know or feel free to contact me for research collaboration. huprichlaw@gmail.com



  46. I would like some advise on what I should do. I filed a complaint against my lender and broker Pro-Per back in October 2007. The basis of my complaint is that my loan documents were forged and was the victim of predatory lending. I filed Pro-Per because I was unable to afford a lawyer. I have been able to survive two different Demurs and Motions to Strike and Motion for Judgement on the Pleadings and have a trial date in March 2010. Over the past two years I was always careful to follow the court’s procedures and comply with all deadlines. In May 2009, I hired a lawyer that read my story that I posted on this website. When I met with her, she was confident that she could help me and was very convincing. I felt she had the same passion that I did to fight against predatory lenders and win my case. I informed her up-front that I did not have much money. I paid her a retainer and she said I could work on her home and also file court papers as she needed me. At the time that I hired her, I was about to attend a deposition by defendant. She attended the depo with me, but she stated that she was unaware of the details of my case, so she was not objecting to anything, so I left the deposition feeling that it did not go well. When I first met with her, I informed her that I needed her to send out discovery and set up depos, She stated that she wanted to Amend the Complaint to add additional defendants and Causes of Actions. None of this has been done as of today. Seven days after I paid her the money, she was threatening to withdraw from my case because she said that I was not complying with her requests for my documents, which was not true. I gave her all the documents that I had. She also said that she was unable to get in touch with me, which was also not true because I had been to her house numerous times to do work. Defendants served a Request for Production of 22 different documents, and the day before they were due, she called and informed us that she was not able to prepare the documents and that we needed to do retrieve the files from her home, which is at least 25 minutes from where we live, put the documents in order and make copies and bring them back to her. She was very verbally abusive toward us and after a confrontation occurred between my girlfriend and her she informed me that I was not to discuss my case with her or she would resign. This made it very hard for me because my girlfriend has helped me from the beginning. She never should have had us doing her job to begin with. We are not attorneys’ and that is why I hired her. She became very negative and said that I was going to lose my case and the judge was going to dismiss it.
    After her first CMC (which she filed the statement late), the judge required a status letter to be filed by a certain date with she did not do. Over the next several months, I was at her home at least every other weekend and during the week, filing documents, all over the bay area, never missing any of her deadlines for her other clients, always available when she needed me. I had requested more than once that we discuss the details of my case and our strategy’s and she refused stating that there was no time for that and she was not going to waste time listening to me. As the next court date approached, she did not file a timely CMC statement or a status letter. I sent her a lenghly e-mail with my concerns that she was not properly representing me and did not treat me with respect. After several attempts to contact her, she finally telephoned me and informed me that she wanted to withdraw from my case, and that I needed to sign a Substitution of Attorney and that the judge would most likely be dismissing my case and trying to intimidate me by saying that I was going to lose my home. I refused to sign anything and told her that I would see her in court. This was the third time she had threatened to withdraw and it had only been three months since I hired her. By the day we appeared in court, she had not filed a substitution of attorney or had she filed the CMC statement. She arrived late to court and immediately informed the judge that she would be resigning. The judge wanted us to try to work it out. As soon as I requested to speak, my attorney said that she would be willing to step outside and talk to me. We worked out our differences and informed the court that she no longer was resigning and the judge assigned my case to mediation. Again my attorney stated that she wanted to amend the complaint to add additional defendants. The judge said that she should do this immediately. The judge ordered that we choose a mediator and inform the court within 30 days and set a Compliance hearing. My attorney again did not comply with this request even though I worked for her again and sent her a reminder email to notify the court. She not only didn’t send a status letter, she also failed to appear at the compliance hearing and now is subject to sanctions. The judge has ordered both attorneys to appear to show cause why she should not sanction them further or dismissal of the actions/striking of the pleadings pursuant to CCP 177.5 and 575.2.
    This is where I stand now. I sent her an e-mail asking her why she had not complied with the court and that I was very concerned because she had not done anything she said she was going to do. I also asked her what the judge meant by that. She said that she had chosen a mediator and did not know why the court did not receive any documents from the mediator. It is not the mediator’s responsibility to notify the court. It was hers. She then informed me verbally of the mediation date. The OSC hearing is set for 11/05/09 and she is to file a declaration by 10/29/09. She has not filed anything in my case since June 8, 2009 which was one week after she was retained. She has not provided me with the legal representation that I am entitled to, nor has she conducted any discovery or responded to any of my requests. I don’t know what my legal rights are. What happens to my case, if she continues to be noncompliant. Would the judge actually dismiss, and if so, what is my recourse?
    I have worked so hard fighting lenders, brokers, and their attorneys. I have gone to the Department of Real Estate, Department of Corporations, District Attorney’s office, Department of Justice, and even appeared on Channel 7 on your side with my story. I have stopped the illegal sale of my home five times, with the last time on the court steps at 12:05 p.m. on the day of the sale. I have never given up and am still in my home and intend to remain here for a long time.
    I believe in what I am fighting for and intend to try to help innocent homeowners who are victims of Predatory Lending Practices and against crooked lawyers who are misleading and taking their monies.
    This is why I am asking you for your advise as to what I should do. I am posting this on your site because this is where she found me and I don’t want this to happen to anyone else.
    I want you especially to become aware that this is happening on your website. I was told that I should not make a complaint with the State Bar while she was still representing me. I do not have money to hire a different lawyer, but can I proceed with a lawyer that I do not trust.
    Neil, thank you for taking the time to read my story. I anxiously await your reply and the comments and advise of your readers.



  47. LOOKING FOR HELP – I have the ideal case (the right judge, non-english speaking borrowers with a spanish speaking broker, forged loan application and early disclosures, etc.) Need an attorney (or group) in LA area willing to assist pro bono (or take atty fees at end) on taking this case forward. We’ve all been looking for the right one – I guarantee this one is it. I will put in the leg work, I need a group to support on the back end with strategy, etc. I’m fighting the paper mill right now. Feel free to call 626-797-0275. Joseph Huprich, Esq.



  48. Current case being heard here in N. Dist. BK Court, Case 09-05050…Caporale v. Saxon Mortgage Services et al…from MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER:
    “In the absence of bankruptcy law, the legal obligations of the parties are determined by the applicable non-bankruptcy law, which is usually state law. See, e.g., United States v. Butner, 440 U.S. 48, 54-55 (1979).
    In the United States, the law of promissory notes is not unified at the federal level. Instead, each state has its own law on promissory notes. However, every state has adopted a version of the UCC to govern negotiable promissory notes.
    The substantive California law that governs negotiable instruments is Cal Commercial Code Division 3 (the California version of UCC Article 3). See CComC § 3102(a). A negotiable instrument (or more briefly, for Division 3 purposes, an “instrument”) typically takes one of two forms: a promissory note (designated as a “note”), or a draft (such as a check). This case involves a note secured by a deed of trust.
    In Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir. 1977), the Ninth Circuit outlined the procedure to perfect a security interest in promissory notes secured by trust deeds under §§ 9304 and 9305 of the California Commercial Code.
    Section 9304(1) of the California Commercial Code states:
    “A security interest in chattel paper or negotiable documents may be perfected by filing. A security interest in instruments . . . can be perfected only by the secured party’s taking possession, . . . .” (emphasis added).
    Promissory notes and deeds of trust are instruments, and a security interest in them can be perfected only by possession. See Matter of Staff Mortgage and Investment Corp., 550 F.2d 1228, 1230 (9th Cir. 1977). Merely recording the transaction does not perfect defendant’s security interest. In re Bruce Farley Corp., 612 F.2d 1197, 1199 (9th.Cir. 1980).
    If the owner of the promissory does not have actual possession of the original promissory they are deemed unsecured. In re Major Funding Corp., 82 B.R. 443, 449 (S.D. Tex. 1987).”
    Note: CCC has changed and 9304(1) no longer states what is contained in the cited cases. See CCC9312 et seq.
    ************************************************
    See 12,04 of the following:
    Mortgage Backed Security
    Pooling and Servicing Agreement
    Matt LaMaster
    mplamaster@fcsl.edu
    February 12, 2009
    §1 Introduction
    This article is meant to help interpret the contractual relationships that generally exist in a Pooling and Servicing Agreement (PSA) of a Mortgage Backed Security (MBS). The majority of PSAs look very similar, so the example used in this article will likely correlate with your PSA.
    §2 Mortgage Backed Security
    To help begin to understand a PSA it is first important to be familiar with Mortgage Backed Securities. Essentially a Mortgage Backed Security is a collection of single mortgage loans gathered into one securitized pool. The pool is then divided into tranches based on the degree of risk and transferred as a whole to a trust. The trust then issues a series of bonds and these bonds are then sold to investors. It seems like an excessive amount of handling, but the theory is that pooling the loans gives investors opportunities to gain rewards that would not be available in a single loan. Of course, with the opportunity for financial returns, there is always risk involved. However, the theory is, or was, that by creating a diverse pool of loans it will decreases the investors’ risk.
    §3 Pooling and Servicing Agreement
    Once a loan has been securitized, the need for a PSA becomes apparent. The PSA is essentially a contract that exists between the parties involved in the securitization of the loans. This contract will dictate how the investment proceeds and losses will be distributed to the parties and investors. Most important though it will also describe how the Mortgage Backed Security pool of loans will be serviced and transferred from the parties.
    §4 Parties Involved in a PSA
    In general there are four parties involved in a MBS PSA and each has important responsibilities. The following is a list of the parties most often involved in the securitization of a loan along with their individual responsibilities:
    Depositor: The entity that accumulates the mortgages and transfers them to the Trust along with the issuance of the securities to the certificate holders. The Depositor can be the seller of a portfolio of mortgages or an entity established just for the purpose of holding the mortgages until the pool accumulation is completed.
    Master Servicer: The Master Servicer services the loans in the pool through maturity and is regularly expected to process all requests made by the borrower. However, if the borrower defaults then they may subcontract duties to a Special or Sub-Servicer but the Master Servicer is still generally responsible for their performance.
    Securities Administrator/ Custodian: Responsible for safeguarding the financial assets. The role of a custodian is to hold the assets in safekeeping, arrange settlement of any purchases and sales of securities, and collect information on the income from the assets.
    Special Servicer: In the event of a default or other specified incident, the loan’s administration is transferred to the Special Servicer. They also have the authority to oversee actions such as loan assumptions. Furthermore, the Special Servicer may have the right to “put” the defaulted loan back to the loan originator in the event of a document defect or breach of a representation or warranty by the borrower which materially and adversely affects the value of the loan.
    Credit Risk Manager: Evaluates the credit risk and communicates with the Trustee.
    Trustee: Holds loan documents and distributes payments received from the Master Servicer to the bondholders and is often granted a broad authority regarding aspects of the loan under the pooling and servicing agreement. However, it is usual for them to delegate authority to the Special Servicer or the Master Servicer. Because the Trustee holds the loan documents, the Trustee is the one who will be named in lawsuits or non-judicial foreclosures.
    EXAMPLE: THIS POOLING AND SERVICING AGREEMENT, dated as of April 1, 2007, among HSI ASSET SECURITIZATION CORPORATION, as depositor (the “Depositor”), WELLS FARGO BANK, N.A., a national banking association, as master servicer (in such capacity, the “Master Servicer”), as securities administrator (in such capacity, the “Securities Administrator”) and as custodian (in such capacity, “the Custodian”), OFFICETIGER GLOBAL REAL ESTATE SERVICES INC., as credit risk manager (the “Credit Risk Manager”), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association, as trustee (the “Trustee”).
    §5 Contents of a PSA
    This section is an overview of what one would expect to find in a MBS PSA along with an interpretation of the intended objective of each Article.
    Again, the PSA can most often be found in file 8-K of the Current Report in the Prospectus. As with most large legal documents there is a Table of Contents. The following is an example Table of Contents that are generally found in a PSA:
    Article I: Definitions
    Article II: Conveyance of Mortgage Loans; Representations and Warranties
    Article III: Administration and Servicing of Mortgage Loans
    Article IV: Distributions
    Article V: Certificates
    Article VI: Depositor
    Article VII: Default
    Article VIII: Concerning the Trustee
    Article IX: Administration of the Mortgage Loans by the Master Servicer
    Article X: Concerning the Securities Administrator
    Article XI: Termination
    Article XII: Miscellaneous Provisions
    Exhibits
    Article I
    Definitions
    The following is a list of important terms pulled from this article that are specifically relevant to the relationship and contractual obligations of the PSA.
    Assignment of Mortgage: An assignment of the Mortgage, notice of transfer or equivalent instrument in recordable form reflecting the sale of the Mortgage to the Trustee.
    Certificateholder or Holder: The person in whose name a Certificate is registered in the Certificate Register, and is the owner of the bond that is sold.
    Closing Date: This is the day the agreement starts.
    Cut-off Date: This is the day the last loan is allowed into the pool.
    Debt Service Reduction: With respect to any Mortgage Loan, a reduction by a court of competent jurisdiction in a proceeding under the United States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became final and non-appealable, except such a reduction resulting from a Deficient Valuation or any reduction that results in a permanent forgiveness of principal.
    EDGAR: The Security and Exchange Commission Electronic Data Gathering and Retrieval System. This data base can be found at http://www.sec.gov under the Filing and Forms section.
    Final Recovery Determination: With respect to any defaulted Mortgage Loan or any REO Property the Servicer, in its reasonable good faith judgment, expects to be finally recoverable in respect thereof have been so recovered.
    Form 8-K Disclosure Information: This form.
    Liquidated Mortgage Loan: A defaulted Mortgage Loan (including any REO Property) which was liquidated in the preceding calendar month. As to which a Servicer has certified to the Securities Administrator that it has received all amounts it expects to receive in connection with the liquidation of such Mortgage Loan.
    Loan-to-Value Ratio or LTV: As of any date and as to any Mortgage Loan, the ratio (expressed as a percentage) of the outstanding principal balance of the Mortgage Loan in relation to its appraised value at the time of sale or at the time of the refinancing or modification.
    MERS: Mortgage Electronic Registration Systems, Inc., is an electronic mortgage filing service that allows for little to no paper work.
    Mortgage: The mortgage, deed of trust or other instrument identified on the Mortgage Loan Schedule as securing a Mortgage Note.
    Mortgage File: The items pertaining to a particular Mortgage Loan contained in either the Servicing File or Custodial File.
    Mortgage Loan: An individual Mortgage Loan that is the subject of this Agreement, each Mortgage Loan originally sold and subject to this Agreement being identified on the Mortgage Loan Schedule.
    Mortgage Loan includes: the Mortgage File, the Scheduled Payments, Principal Prepayments, Liquidation Proceeds, Subsequent Recoveries, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds, Prepayment Charges, and all other rights, benefits, proceeds and obligations arising from or in connection with such Mortgage Loan, excluding replaced or repurchased Mortgage Loans.
    Mortgage Loan Seller: Any entity which sold Mortgage Loans to the Sponsor pursuant to a Transfer Agreement.
    Mortgage Loan Schedule: A schedule of Mortgage Loans prepared by the Depositor, delivered to the Trustee on the Closing Date and referred to on Schedule I, such schedule setting forth the Data Tape Information with respect to each Mortgage Loan.
    Mortgage Note: The note or other evidence of the indebtedness of a Mortgagor under a Mortgage Loan.
    Mortgaged Property: With respect to each Mortgage Loan, the real property (or leasehold estate, if applicable) identified on the Mortgage Loan Schedule as securing repayment of the debt evidenced by the related Mortgage Note.
    Mortgagor: The obligor(s) on a Mortgage Note.
    REO Property or Real Estate Owned: A Mortgaged Property acquired by the Trust Fund through foreclosure or deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.
    Responsible Officer: When used with respect to the Trustee, the Securities Administrator, the Master Servicer, any vice president, any assistant vice president, any assistant secretary, any assistant treasurer, any associate, or any other officer of the Trustee, the Securities Administrator or the Master Servicer customarily performing functions similar to those performed by any of the above designated officers who at such time shall be officers to whom, with respect to a particular matter, such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of this Agreement.
    Sub-Servicer: Any Person that services Mortgage Loans on behalf of a Servicer, and is responsible for the performance (whether directly or through sub-servicers or Subcontractors) of servicing functions required to be performed under this Agreement.
    Trust Fund: The trust fund consists of (i) the Mortgage Loans and all interest and principal with respect thereto received on or after the related Cut-off Date; (ii) the Collection Account, the Distribution Account, the Cap Termination Receipts Account, the Cap Replacement Receipts Account the Swap Termination Receipts Account, the Swap Replacement Receipts Account; (iii) property that secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Insurance Policies.
    Article II
    Conveyance of Mortgage Loans; Representations and Warranties
    §2.01 Conveyance of Mortgage Loans
    This section sets out how the Loans are to be transferred from the Depositor to the Trustee.
    a) The Depositor will sell, transfer, assign, set over and otherwise convey to the Trustee all rights, title and interest with respect to the Mortgage Loans on or after the Cut-Off date.
    b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor delivers the Custodian the original Mortgage Note. If the original Mortgage Note cannot be located then the Mortgage Loan Seller must send an affidavit and record of the Mortgage being recorded in a public recording office. If the Mortgage had been previously assigned there must be evidence of the complete chain of ownership from the originator to the last assignee.
    c) The parties agree that is the policy and intention to acquire Mortgage Loans meeting the requirements set forth in the Transfer Agreements and in the Purchase Agreements.
    d) The Trustee has the power and authority to accept the sale, transfer, and assignment for the Trustee of the right, title and interest that is held by the Depositor.
    §2.02 Acceptance by the Custodian of the Mortgage Loans
    The Custodian will hold the documents named in §2.01 for the benefit of the present and future investors. The Custodian is required to inform the Depositor, Securities Administrator, the Trustee and the Servicer by facsimile certifying that they received the Mortgage Note and Assignment of Mortgage for each Mortgage Loan (exhibit E). Furthermore, within 90 days of the Closing Date the Custodian shall have all of the required documents for each Mortgage Loan listed in the Mortgage Loan Schedule. This basically means that they must have every document for every Mortgage Loan within 90 days of the Closing Date.
    §2.03 Remedies for Breaches of Representation and Warranties with Respect to the Mortgage Loans
    a) Upon the removal of a Deleted Mortgage Loan the Custodian shall release the Mortgage File to the applicable Mortgage Loan Seller and the Trustee. Upon receipt of a Request for Release, all amounts required to be deposited have been deposited in the related Collection Account. The Trustee shall execute and deliver at the applicable Mortgage Loan Seller’s direction such instruments of transfer or assignment prepared by the applicable Mortgage Loan Seller that are necessary to vest title in the applicable Mortgage Loan Seller of the Trustee’s interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
    b) The Sponsor shall indemnify the Depositor, any of its Affiliates, the Master Servicer, each Servicer, the Securities Administrator, the Trustee and the Trust and hold such parties harmless against any losses, damages, penalties, judgments and other costs and expenses resulting from any third party claim resulting from, a breach by the Sponsor of any of its representations and warranties or obligations contained in this Agreement.
    c) Upon receipt of a Request for Release, at the direction of the Servicer, the Custodian shall release the Custodial File to the related Mortgage Loan Seller or the Sponsor. The Trustee shall execute and deliver instruments of transfer or assignment as shall be necessary to transfer title from the Trustee. The Securities Administrator shall notify each Rating Agency of a purchase of a Mortgage Loan pursuant to this Section 2.03 or pursuant to a Transfer Agreement.
    d) The Trustee acknowledges that the Sponsor shall not have any obligation or liability with respect to any breach of a representation or warranty made by it with respect to a Mortgage Loan sold by it provided that such representation or warranty was also made by a Mortgage Loan Seller with respect to the related Mortgage Loan.
    The representations and warranties of the Sponsor and assigned to the Trustee by the Depositor shall survive the transfer of the Mortgage Loans by the Depositor to the Trustee on the Closing Date. It will insure the benefit of the Trustee and the Certificateholders any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage and shall continue throughout the term of this Agreement.
    Upon the discovery by any of the Sponsor, the Depositor, the Securities Administrator, the Trustee, the Master Servicer or any Servicer of a breach of any of the Sponsor’s representations and warranties the party discovering the breach shall give prompt written notice to the others.
    §2.04 Execution and Delivery of Certificates
    The Trustee acknowledges that the execution and delivery of the Certificates are in authorized denominations evidencing the entire ownership of the Trust Fund.
    §2.05 REMIC Matters
    This states that the Preliminary Statement (which can be found prior to the Table of Contents) sets forth that the Trust meets federal income tax code for Real Estate Mortgage Investment Conduits (REMIC).
    §2.06 Representation and Warranties of the Depositor
    The Depositor warrants and covenants that as of the date of the agreement that:
    a) They exist in good standing under Delaware law;
    b) They have the power to convey the Mortgage Loans and enter into these types of agreements;
    c) They understand they are entering into a legally binding agreement;
    d) That it is not required to inform any governmental authority of the transactions prior to the Closing Date;
    e) That this agreement does not break any of their by-laws or breach other agreement that they are a part of or violate any law, rule, or regulation;
    f) There are no actions or investigations against them;
    g) They are not in default with any government;
    h) That they had good title and was the sole owner of each Mortgage Loan and that they transferred all interest in each Mortgage Loan to the Trustee.
    Article III
    Administration and Servicing of Mortgage Loans
    §3.01 Establishment of Certain Accounts
    This section sets forth how the Securities Administrator will set up the Excess Fund Account and Distribution Account. The sub-sections of §3.01 go into further detail as to how the Securities Administrator maintain the Distribution Account and how the Servicers pay into the Distribution Account.
    §3.02 Investment of Funds in Distribution Account
    The Securities Administrator may invest funds from the Distribution Account and any income gained by the investment is for the benefit of the Securities Administrator. However, if there is a loss then the Securities Administrator is liable to the Trust for that amount.
    §3.03 Report on Assessment of Compliance with Relevant Servicing Criteria
    This section sets forth a policy that once a calendar year the Master Servicer, the Securities Administrator and the Custodian will furnish a report on an assessment of compliance with the Relevant Servicing Criteria set forth in Exhibit S to the Securities Administrator and the Depositor. The report will contain a statement regarding each party’s assessment of compliance with the Relevant Servicing Criteria, including, any material instance of noncompliance with the Relevant Servicing Criteria.
    Furthermore, after receipt of the report the Depositor will review each such report and consult with the Master Servicer, the Securities Administrator, the Custodian, as to the nature of any material instance of noncompliance. Furthermore, the Securities Administrator shall confirm that the assessment addresses all of the Servicing Criteria for each party as set forth on Exhibit S or in the applicable Servicing Agreement.
    The Master Servicer will enforce any obligation of each Servicer and submit an annual report on assessment of compliance to the Securities Administrator within the time frame set forth in the Servicing Agreement.
    §3.04 Report on Attestation of Compliance with Relevant Servicing Criteria
    This section sets forth a policy that once a calendar year the Master Servicer, the Securities Administrator and the Custodian will furnish a Certified Public Accountants to furnish an attestation report to the Securities Administrator and the Depositor. The attestation report includes information regarding the Relevant Servicing Criteria.
    §3.05 Annual Officer’s Certificates
    The Master Servicer and the Securities Administrator will deliver an Officer’s Certificate to the Depositor which states that the Officer reviewed the business activities of their party. Furthermore, the Certificates must adhere to the standards of the Sarbanes-Oxley Act.
    §3.06 Indemnification
    The Depositor, Master Servicer, Securities Administrator, Custodian, Trustee, and any Servicing Participant are considered an “Indemnifying Party.” In the case that any one of those parties fail to submit any required information, data or materials that party is indemnified and held harmless from and against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses. So long as that dispute arose out of or based upon (a) any breach by such party of any if its obligations hereunder; (b) any material misstatement or omission in any information, data or materials provided by such party including any material misstatement or material omission, or (c) the negligence, bad faith or willful misconduct in connection with its performance hereunder.
    If the indemnification provided is unavailable or insufficient to hold the party harmless then each Indemnifying Party agrees that it shall contribute to the amount paid or payable as a result of any claims, losses, damages or liabilities incurred by the at fault party. Furthermore, the indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
    The Depositor, the Securities Administrator, the Custodian and the Trustee shall immediately notify the Master Servicer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans. Whereupon, the Master Servicer shall assume the defense of any such claim and pay all expenses to discharge and satisfy any judgment. If any indemnified parties have a conflict of interest with respect to any such claim, the indemnified party shall have the right to retain separate counsel.
    §3.07 Advances
    This section states a number of ways that the advances can be made to the pursuant to the Servicing Agreement.
    Article IV
    Distributions
    §4.01 The Distribution Account
    The Master Servicer will deposit the funds collected into Distribution Account pursuant to the Servicing Agreements.
    §4.02 Priorities of Distribution
    On each Distribution Date the Securities Administrator will distribute payments pursuant to REMIC standards. Furthermore, this section states how the funds will be distributed to different sets of investors. The investors will often times set up accounts to invest in different classes or tranches. The classes with the less risk will be paid first with the higher risk classes to be paid last.
    §4.03 Monthly Statements to Certificateholders
    The Securities Administrator is required to have a report available on each Distribution Date for the Master Servicer, the Servicers, the Credit Risk Manager, the Depositor, the Trustee, and each Certificateholder. The report will have information about the balances and interest in each of the accounts. More importantly, the report will have the following (1) the number and aggregate outstanding principal balances of Mortgage Loans that are delinquent 31 to 60 days, 61 to 90 days and 91 or more days, (2) that have become REO Property, (3) that are in foreclosure and (4) that are in bankruptcy, as of the close of business on the last Business Day of the immediately preceding month.
    §4.04 Certain Matters Relating to the Determination of LIBOR
    This section basically states that the Securities Administrator will use the London Interbank Offered Rate (LIBOR) to determine interest. However, they have option of choosing which Reference Bank that will determine the LIBOR.
    §4.05 Allocation of the Applied Realized Loss Amount
    The Securities Administrator will apply a loss to the Class M Certificates.
    §4.06 Supplemental Interest Trust
    The section requires the Securities Administrator to set up a Supplemental Interest Trust for the purpose of managing Permitted Investments and Swap accounts. A Swap is a side agreement between two parties to exchange or insure future cash flows.
    §4.07 Rights of the Swap Counterparty
    The Swap Counterparty shall be deemed a third-party beneficiary of this Agreement to the same extent as if it were an original party and shall have the right to enforce its rights under this Agreement.
    §4.08 Termination Receipts
    This section details what would happen if a Swap is terminated and where the money invested will be deposited.
    Article V The Certificates
    This article gives information in regard to how the certificates are originated and how they can be transferred. A certificate in this context is basically legal proof of ownership in a specific Class. The section also gives information on who can be deemed an owner and how a list of the owners.
    Article VI
    The Depositor
    §6.01 Liabilities of the Depositor
    The Depositor is liable for the obligations set forth in this section.
    §6.02 Merger or Consolidation of the Depositor
    The Depositor will remain a franchise or corporation under the laws of the United States for the purposes of protecting the validity and enforceability of the Agreement and any of the Mortgage Loans.
    §6.03 Limitation on Liability of the Depositor and Others
    The section begins by stating that neither the Depositor nor its agents are liable to the Certificateholders for any act or omission to act that is made in good faith or error of judgment. The Depositor may rely in good faith on any document of any kind properly executed and submitted by any Person respecting any matters arising hereunder.
    The Depositor shall be indemnified by the Trust Fund and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to government taxing, or any legal action relating to this Agreement. However, that excludes any loss, liability or expense related to any specific Mortgage Loan or Mortgage Loans. Furthermore, the Depositor would be liable for any breach of representations or warranties, willful misfeasance, bad faith, negligence, or reckless disregard of obligations and duties.
    The Depositor is not under any obligation to appear in any legal action that is not in relation to its duties. However, the Depositor may in its discretion undertake any such action that it may deem necessary or desirable.
    Article VII
    Default
    §7.01 Master Servicer to Act; Appointment of Successor
    The Master Servicer or Trustee can decide to terminate any Sub-Servicer and appoint a new Servicer without limitation. If they decide to terminate a Sub-Servicer then they will have a period (not to exceed 90 days) to complete the transfer of all servicing data and correct or manipulate servicing data as may be required to correct any errors or insufficiencies to service the Mortgage Loans properly and effectively.
    Any successor to a Servicer shall be an institution which is willing to service the Mortgage Loans and which executes and delivers to the Depositor, the Master Servicer and the Trustee an agreement accepting all of the rights, powers, duties, responsibilities, obligations, and liabilities of Servicer, as if originally named as a party to such Servicing Agreement.
    §7.02 Notification of Certificateholders
    The Securities Administrator is required to notify the Certificateholders if there is a termination of a servicer.
    Article VIII
    Concerning the Trustee
    §8.01 Duties of the Trustee
    In the event that the Master Servicer is unable to perform its duties pursuant to this Agreement the Trustee has the power to act as the Servicer. In that case the Trustee is to be furnished with all of the documents the Master Servicer held. Upon receipt the Trustee shall examine the documents but is not responsible for the accuracy or content. However, the Trustee is not to be relieved of any liability for negligence or willful misconduct.
    a) No implied covenants or obligations shall be read into this Agreement. The Trustee can rely that the documents are true and correct.
    b) The Trustee shall not be liable for error in judgment made in good faith unless the Trustee was negligent in ascertaining pertinent facts.
    c) The Trustee shall not be liable for any action taken in good faith for the Certificate Holders.
    §8.02 Certain Matters Affecting the Trustee
    a) The Trustee can rely upon any document believed to be true and shall not have any responsibility to confirm the genuineness.
    b) The Trustee can receive advice from counsel or advisors that is done in good faith.
    c) The Trustee is not liable for any action or omission taken in good faith.
    d) The Trustee does not need to investigate any matters dealing with the genuineness of the documents unless requested by 25% of the Certificateholders.
    e) The Trustee may perform duties through its agents and is not responsible for the negligence of any agent appointed with due care.
    f) The Trustee is not required to expend its own funds in performance of its duties.
    g) The Trustee is not liable for any loss on investment pursuant to this Agreement.
    h) The Trustee is not responsible for knowledge of a Master Servicer being unable to perform until receiving written notice from the Master Servicer.
    i) The Trustee is not obligated to conduct or defend any litigation
    §8.03 Trustee Not Liable for Certificates or Mortgage Loans
    This section states that the Trustee assumes not responsibility for the correctness of and document related to this agreement or the Mortgage Loans. Furthermore, they state that the Trustee is not responsible to maintain the perfection of any security interest or lien granted to it.
    §8.04 Trustee May Own Certificates
    The Trustee may own or pledge Certificates.
    §8.05 Trustee Fees Indemnification and Expense-
    a) The Trustee is compensated by the Master Servicer own funds pursuant to a separate agreement. The Trustee cannot put a lien on the Trust for the payment of fees.
    b) The Trustee can be reimbursed for any liability or expense associated with any claim or legal action. There are a number of exceptions which include willful misconduct or bad faith by the Trustee.
    §8.06 Eligibility Requirements for the Trustee
    The Trustee must be a corporation operating under United States law. This section also requires that the corporation have fifty million dollars in capital pursuant to federal authority and if it fails to do so the Trustee shall resign.
    §8.07 Registration and Removal of the Trustee
    The Trustee can resign or be removed at any time. If the Trustee does resign they must give written notice 60 days in advance.
    §8.08 Successor Trustee
    When a successor Trustee is appointed they must be eligible under 8.06 and must inform the Depositor, Servicers, and Certificateholders.
    §8.09 Merger or Consolidation of Trustee
    Any corporation that merges or consolidates must be eligible under 8.06.
    §8.10 Appointment of Co-Trustee or Separate Trustee
    The Trustee can appoint co-trustees or separate trustees and are said to have the same right and powers as the Trustee. No Trustee shall be held personally liable and the Trust Fund will be liable for payments.
    §8.11 Tax Matters
    This section states that the assets are intended to be qualify as Real Estate Mortgage Investment Conduits (REMIC) as defined by the Internal Revenue Service. Furthermore, it states that it is the Securities Administrator’s responsibility to act as the agent to prepare, file, and maintain the REMIC assets.
    §8.12 Commission Reporting
    The Securities Administrator is responsible for preparing and filing reports with the Securities and Exchange Commission via EDGAR.
    Article IX
    Administration of the Mortgage Loans by the Master Servicer
    §9.01 Duties of the Master Servicer; Enforcement of Servicer’s Obligations
    This section delineates the contractual obligations of the Master Servicer.
    a) The Master Servicer will, in good faith, monitor the obligations and performance of the Sub-Serivicers as it relates to the Servicing Agreement.
    b) The Maaster Servicer or the Trustee pay the cost of monitoring the Sub-Sericers.
    c) If the Master Servicer or Trustee replace a Sub-Servicer as successor, the successor does not assume liability for the representations and warranties of the replaced Sub-Servicer.
    d) Only the Master Servicer or Trustee can legally consent to the assignment of Sub-Servicer’s obligations.
    §9.02 [Reserved]
    §9.03 [Reserved]
    §9.04 Maintenance of Fidelity Bond and Errors and Omissions
    This section sets forth that the Master Servicer is required to have a blanket fidelity bond and an insurance policy that covers any errors or omissions in the performance of the its obligations. Furthermore, the insurance policy and fidelity bond should be in an amount generally acceptable for master servicers or trustees.
    §9.05 Representation and Warranties of the Master Servicer
    a) The Master Servicer represents and warrants that as of the Closing Date:
    i. They are a national banking association in good standing and have the power to transact in any and all business contemplated in this agreement;
    ii. That this agreement does not break any of their by-laws or breach other agreement that they are a part of or violate any law, rule, or regulation;
    iii. They understand they are entering into a legally binding agreement;
    iv. They are not in default with any government;
    v. They are not a party to or bound by any agreement or charter provision that would adversely affect its ability to perform its obligations.
    vi. There are no actions or investigations against them;
    vii. That it is not required to inform any governmental authority of the transactions prior to the Closing Date;
    b) If the Master Servicer materially breaches their representation and warranties set forth in §9.05 they will indemnify the Depositor, Securities Administrator, and Trustee.
    §9.06 Master Servicer Event of Default
    The following constitute an Event of Default:
    a) Failure to deposit a payment made by a Sub-Servicer into the Distribution Account for longer than two days;
    b) Failure to observe or perform any covenants that continue unresolved for thirty days;
    c) An order of the court entered against the Master Servicer for liquidation or bankruptcy that is unresolved for sixty days or more;
    d) If the Master Servicer attempts to assign its duties and obligations to another party without the consent of the Depositor or Securities Administrator;
    e) If the Master Servicer is indicted for fraud or criminal activity in performance of its duties under this Agreement;
    f) Failure of the Master Servicer to provide annual statements of compliance.
    §9.07 Waiver of Default
    An Event of Default can be waived by the Trustee along with 51% of the Certificateholders votes.
    §9.08 Successor Master Servicer
    Upon termination of a Master Servicer the Depositor will appoint a successor. The successor must be an approved Fannie Mae or Freddie Mac servicer in good standing. In the event the Master Servicer is terminated they still must perform their duties until a successor is appointed.
    If no successor can be appointed within ninety days the Trustee will become the successor and be subject to the liabilities of the former Master Service but will not be obligated to monitor Sub-Servicers.
    §9.09 Compensation of the Master Servicer
    The Master Servicer is paid the Master Servicing Fee. The Master Servicing Fee can generally be found in the Definitions.
    §9.10 Merger or Consolidation
    Any Person that is merged or consolidates with the Master Servicer must agree to service the Mortgage Loans in accordance with Fannie Mae and Freddie Mac guidelines and have a net worth no less than twenty-five million dollars.
    §9.11 Resignation of the Master Servicer
    This section states that the Master Servicer cannot resign unless it is no longer allowed, by law, to be the Master Servicer. If the Master Servicer does resign then it is not effective until another Master Servicer assumes the duties. In this PSA the Master Servicer and the Security Administrator are the same company therefore if the company resigns as the Master Servicer it must also resign as the Securities Administrator.
    §9.12 Assignment or Delegation of Duties by the Master Servicer
    The Master Servicer is not allowed to assign its duties or obligations to anyone unless the upon written consent of the Depositor.
    §9.13 Limitation on Liability of the Master Servicer
    The Master Servicer is has no liability to the Trustee or Certificateholders for any act, omission, or error in judgment made in good faith. However, the Master Servicer will be liable for willful misfeasance, bad faith, negligence, or reckless disregard for its obligations. The Master Servicer is not liable for any acts or omissions of any Sub-Servicer. However, the Master Servicer can be liable if the Sub- Servicer acts with willful misfeasance, bad faith, negligence, or reckless disregard for its obligations.
    The Master Servicer may rely in good faith on any document that is properly executed and submitted.
    The Master Servicer is under no obligation to appear in any legal action that is not in relation to its duties. However, the Master Servicer may in its discretion undertake any such action that it may deem necessary or desirable.
    §9.14 Indemnification; Third Party Claims
    The Master Servicer indemnifies the Trustee as successor master servicer from any claims that the Trustee may sustain as a result of liability or obligations of the Master Servicer and in connection with the Trustee’s assumption of the Master Servicer’s obligations, duties or responsibilities under such agreement.
    The Trust will indemnify the Master Servicer against any and all claims that the Master Servicer may incur in connection with this Agreement. The Master Servicer would be entitled to reimbursement for any indemnified amount. However, if the liability or expense is related to
    i) a material breach of the Master Servicer’s representations and warranties,
    ii) the Master Servicer’s willful malfeasance, bad faith or negligence or by reason of its reckless disregard of its duties and obligations or
    iii) failure to provide the assessment, attestation and annual statement of compliance in accordance with Sections 3.03, 3.04 and 3.05
    The Master Servicer is not liable for any action taken by a Servicer with respect to loss mitigation of defaulted Mortgage Loans at the direction of the Credit Risk Manager pursuant to a Credit Risk Management Agreement. Furthermore, the Master Servicer is not liable for the performance of a Servicer under any Credit Risk Management Agreement.
    §9.15 Duties of the Credit Risk Manager
    This section begins by stating the name of the Credit Risk Manager. The Credit Risk Manager provides reports and recommendations in relation to delinquent and defaulted Mortgage Loans, and the collection of Prepayment Charges. The reports are based on information given in a Monthly Statement by the Master Servicer and Sub-Servicers.
    §9.16 Limitation Upon Liability of the Credit Risk Manager
    The Credit Risk Manager has no liability to the Trustee, Securities Administrator, Depositor, or Certificateholders for any act, omission, or error in judgment made in good faith. However, the Credit Risk Manager will be liable for willful misfeasance, bad faith, negligence, or reckless disregard for its obligations. The Master Servicer is not liable for any acts or omissions of any Sub-Servicer. However, the Master Servicer can be liable if the Sub- Servicer acts with willful misfeasance, bad faith, negligence, or reckless disregard for its obligations. The Credit Risk Manager may rely in good faith upon the accuracy of any document furnished by the Servicers.
    §9.17 Removal or Resignation of Credit Risk Manager- This section allows for the Credit Risk Manager to be removed by the Certificateholders by a two-thirds vote. The section also states that five years from the date of the Agreement and annually thereafter the Credit Risk Manager can resign or be terminated by the Depositor.
    Article X
    Concerning the Securities Administrator
    §10.01 Duties of Securities Administrator
    The Securities Administrator is responsible for obtaining all of the documents in the Agreement and examine them to make sure they are in the required form specified in the Agrrement. However, the Securities Administrator is not responsible for the accuracy or content of the document. If the Securities Administrator finds that a document does not conform to the requirements then they are to request a corrected document. If at that time they do not receive a corrected document then they must notify the Certificatholders.
    The Securities Administrator is not to be relieved of any liability for negligence or willful misconduct.
    a) The Securities Administrator is only liable for the duties set forth in the Agreement. No implied covenants or obligations shall be read into this Agreement. The Securities Administrator can rely on the documents furnished to them as true and correct.
    b) The Securities Administrator shall not be liable for error in judgment made in good faith unless the Trustee was negligent in ascertaining pertinent facts.
    c) The Securities Administrator shall not be liable for any action taken in good faith for the Certificate Holders.
    d) The Securities Administrator shall have no liability for the acts or omission of the Master Servicer or the Trustee.
    §10.02 Certain Matters Affecting the Securities Administrator
    a) The Securities Adminstrator can rely upon any document believed to be true and shall not have any responsibility to confirm the genuineness.
    b) The Securities Administrator can receive advice from counsel or advisors that is done in good faith.
    c) The Securities Administrator is not liable for any action or omission taken in good faith.
    d) The Securities Administrator does not need to investigate any matters dealing with the genuineness of the documents unless requested by 25% of the Certificateholders.
    e) The Securities Administrator may perform duties through its agents and is not responsible for the negligence of any agent appointed with due care.
    f) The Securities Administrator is not required to expend its own funds in performance of its duties.
    g) The Securities Administrator is not responsible for the performance or obligations of the Master Servicer or the Trustee.
    h) The Securities Administrator is generally not obligated to conduct or defend any litigation that is not incidental to its duties.
    §10.03 Securities Administrator Not Liable for Certificates or Mortgage Loans
    The Securities Administrator assumes no responsibility for the correctness of the Certificates because the Certificates are statements of the Depositor. The Securities Administrator makes no representation or warranty of any Mortgage Loan or related document. The Securities Administrator executes the Certificates on behalf of the Trust Fund and not in its individual capacity or personal undertaking.
    §10.04 Securities Administrator May Own Certificates
    The Securities Administrator may own or pledge Certificates.
    §10.05 Securities Administrator Fees and Expense
    a) The Securities Administrator is compensated from the investment funds earned from the Distribution Account during the Float Period. The Trustee cannot put a lien on the Trust for the payment of fees.
    b) The Securities Administrator can be indemnified by the Trust for any liability or expense associated with a claim or legal action. However, there are a number of exceptions which include willful misconduct or bad faith by the Trustee.
    §10.06 Eligibility Requirements for the Securities Administrator
    The Securities Administrator must be a corporation operating in good standing under United States law. This section also requires that the corporation have fifty million dollars in capital pursuant to federal authority and if it fails to do so the Securities Administrator shall resign.
    §10.07 Registration and Removal of the Securities Administrator
    The Securities Administrator can resign or be removed at any time. If the Trustee does resign they must give written notice 60 days in advance.
    §10.08 Successor Securities Administrator
    When a successor Securities Administrator is appointed they must be eligible under 10.06 and must inform the Depositor, Servicers, and Certificateholders.
    §10.09 Merger or Consolidation of Securities Administrator
    Any corporation that merges or consolidates must be eligible under 10.06.
    §10.10 Assignment or Delegation of Duties by the Securities Administrator
    The Securities Administrator is not allowed to assign its duties or obligations to anyone unless the upon written consent of the Depositor.
    Article XI
    Termination
    §11.01 Termination upon Liquidation or Purchase of the Mortgage Loans
    This section gives information on how the purchase price will be calculated in the event of liquidation or an Option to Purchase the Mortgage Loans.
    §11.02 Final Distribution on the Certificates
    This section states how the Final Distribution will be announced and paid in the event of maturity or purchase.
    §11.03 Additional Termination Requirements
    In the event of an Option to Purchase the Trust Fund will terminate and the Securities Administrator must give REMIC information to the buying party.
    Article XII
    Miscellaneous Provisions
    §12.01 Amendment
    This section list the reasons why the Agreement may be amended at anytime. There is a clear policy that an amendment cannot be made to adversely affect the Certificateholders. Furthermore, the Agreement can be amended to maintain qualification with REMIC standards and avoid any tax with regards to any REMIC.
    If there are any amendments made the Certificateholders and Rating Agency must be notified.
    §12.02 Recordation of Agreement; Counterparts
    The Agreement is to be recorded in all appropriate public offices for real property records in all jurisdicitions in which the Mortgaged Properties are situated. The recordation of the Agreement can take place simultaneously with the use of counterparts. Furthermore, those counterparts constitute as the original instrument.
    §12.03 Governing Law
    This section states the applicable governing law.
    §12.04 Intention of Parties
    It is Depositor’s intention to convey all right, title and interest in the property as a sale of property not a grant of security interest to secure a loan.
    However, if the conveyance is deemed to be a security interest then: (i) the rights and obligations of the parties are pursuant to the Agreement; (ii) the Trustee is obligated to secure payment of the certificates; (iii) the Agreement constitutes a security agreement under the governing law.
    If the Agreement is deemed to be a security interest in the Mortgage Loans the Depositor must take reasonable actions to ensure that the security interest is perfected and maintained under applicable law. The Depositor will make all initial fillings and forward a copy to the Trustee. Furthermore, the Depositor must prepare and file the necessary documents to perfect the Trustee’s security interest or lein on the Mortgage Loans. Those documents include: any change of name or jurisdiction of the Depositor, Sponsor, or Trustee; any transfer of interest of the Sponsor or Depositor in any Mortgage Loan; any change under relevant UCC or other applicable laws.
    §12.05 Notices
    This section set forth a number of causes that the Securities Administrator must notify the Rating Agency. Included in the list is the repurchase or substitution of Mortgage Loans.
    §12.06 Severability of Provision
    Each provision in the Agreement is considered severable so that if one provision is found to be invalid it does not affect the validity or enforceability of any other provision.
    §12.07 Certificates Nonassesable and Fully Paid
    The Certificateholders shall not be personally liable for the obligations of the Trust Fund.
    §12.10 Rules of Construction
    This states that the article and section heading are only for the purpose of making the document convenient to read and are to show the intent of the parties.
    §12.11 Waiver of Jury Trial
    This section states that each party waives their right to a jury trial and that any dispute will be tried before a judge.



  49. Thanks for that find Charles.
    I wonder if this matters based upon CA Law:
    Securitized mortgage loan with a Pooling and Servicing agreement that states that the depositor will assign the mortgage note to the trustee for the benefit of the certificate holders with all intervening assignments.
    -No assignments recorded from original “lender” to the “depositor” or “securitizer” or the original servicer.
    -No assignments recorded from depositor to the trustee/custodian
    Instead:
    - recorded assignment from MERS to the 2nd servicer took over from the 1st servicer.
    -recorded assignment from 2nd servicer to securities trustee.
    I’m no rocket scientist, but isn’t there suppose to be a properly recorded chain of title to complete lawful foreclosures?



  50. Don,
    See: California Civil Code 2932.5:
    2932.5. Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.
    Charles Cox



  51. James:
    Is there any law that says documents have to be recorded in California Property Code? I haven’t found any yet that talk about the validity of unrecorded instruments.
    Your absolutely right about recording and county recorders. I went to the recorders office and the chain of assignments, timeline of when these documents were recorded and the bogus titles of the people signing these documents show this to be a well orchestrated crime.
    I’ve found the “vice presidents” signing my docs to actually be MERS “certifying officers” that work for a third party company. One of the people is a supervisor in the mailroom of this 3rd party company and she signed that she was A V.P. of the foreclosing servicer. More researched showed that she is actually a notary herself.
    Unbelievable.



  52. LAWLESSNESS & THE WILD WILD WEST BARBARISM RULES
    “RECORDING” is the prime foreclosure crime instrument of banks and their co-conspirators:
    “COUNTY RECORDERS” have been the hubs of lending and real-estate crimes in the past decade. By emailing, or faxing, any phony document to the county recorder any one of the sinister institutional criminals can transfer the title a real-estate to itself or to others. The foreclosure scam process is only a cover-up show to furnish a pretext to record one piece of paper and steal a house.
    POSSIBLE REMEDIES:
    IF there are improprieties in your grant deed and loan documents, or process, you may be justified to file draft an amended grant deed, or a quit-claim deed, and amend the deed as you want or to quit claim it to someone else. This way you would at least be able to create a recorded document as a protest to the current waive of organized crime which was created, and backed, by the government and its instrumentalities. If you think this government gives a damn about anyone of us, then google: “proof of wtc nukes”, or “wtc’s atomic signatures” to see that they nuked all three buildings in 2001. Now they just said people’s FOIA requests would have to wait 150 years for the revelations of “NUCLEAR” details of this crime.
    That is beyond all other coverups so far.



  53. I have recentally lost my home of 12 years and raised 3 children, was taken from out under neath me cause I told them they didn’t have standings from a loan in 2006 assigments recorded after Notice of Default plus they missed an intire bank . Real kicker its a federal bank (our gov) that is doing this. Large bank which has recentally been bought out by One West is the violator. Basicly no sale, no notices, straight out lied. But they all didn’t have standing to even sneeze around my home. Now my home looks like a haunted house ( scary from a beauiftul home becuase of MONEY GREED , to late fighting to the end WCGreenfield



  54. I’m not to concerned about the show me the note defense. I’m more concerned about the fraud. They’re defense is I signed. If I lied about my debts then yes that’s my problem. But how did I lie about my income being inflated by three times. The first requirement to obtaining a loan is to bring in your prior 2 years taxes. How did I lie on my taxes? Did I lie to the IRS and pay more in taxes just so I can go out and buy a house that my real income never qualified for. I understand the foreclosure is going to happen by breach of contract. But my loan was created on fraud. Where is the loan application register as to:
    CHAPTER 29–HOME MORTGAGE DISCLOSURE
    Sec. 2803. Maintenance of records and public disclosure.
    Show me how I pulled off such a lie. Stated income and no doc loans is a lame excuse. You had my taxes. You show me the math.
    Behind in payments I recieve a phone call from my lenders insurance company since I was considered high risk. No one told me. I put down 20% to avoid the P.M.I. But my lender decided since I was in a 3 year Option, took out a L.P.M.I. (lender paid mortgage insurance) out on me. Which in return caused me to pay a higher interest rate.
    CHAPTER 49–HOMEOWNERS PROTECTION
    Sec. 4905. Disclosure requirements for lender paid mortgage insurance
    Did anyone recieve a qualififed written letter saying your a high risk so we’re taking insurance out on you before closing the loan?
    I’ve done the QWR with no response. My auditor has sent letters to the FTC, Office of Thrift, US Dept. of Housing, and the Office of the Comptroller.
    My fear is not losing the home. It’s lawyers. They want $3500 downpayment and a $1,000 a month for an open end contract and are looking for easy money to modify my loan. I don’t want to modify with lending thieves. The lawyer even pointed out the fraud. Okay, what’s next. How long? How much? On a open end contract I could be paying them for years to settle. And maybe wind up with a grand and owe them 15 grand. I’m glad a new bill in Calif. is being passed. You should know every possible outcome before signing with a lawyer. Otherwise you just signed up with a new lender.



  55. Fellow Californians:
    A new, poorly written bill that looks like it’s going to pass has language in it saying that you can’t pay an attorney for a loan mod until after the process is done. California Senate Bill 94
    This is insane. Read up on this and take action:



  56. I just ran across this posting by a servicer attorney. As I’m going to be working on defending our mortgage here in California, I need to be able to address the cases cited and general overall attitude represented here that “produce the note” defenses are frivilous and cannot be sucessful here in California. Here is one post from the website I ran across:
    “March 25, 2009
    “Produce-The-Note” Foreclosure Rescue Litigation Runs Aground In California
    By Joshua Mandell
    As the numbers of residential foreclosures reach record highs, a wave of novel foreclosure rescue litigation has flooded California’s courts. Known as “produce the note” lawsuits, thousands of these suits have been filed within the short span of just a few months. Almost as quickly as the suits have been filed, however, they are being dismissed by the courts.
    The suits do not dispute that the borrower is in default or allege that the trustee conducting the foreclosure failed to comply with the exhaustive statutory scheme that governs non-judicial foreclosures in California. Instead, these suits seek to delay and ultimately enjoin the non-judicial foreclosure process by alleging that the lender or financial institution responsible for commencing the foreclosure does not have possession of the borrower’s original promissory note and cannot foreclose until it proves to the court otherwise. The complaints are forms in which the only difference is the name of the plaintiff and the address of the property.
    California’s Non-Judicial Foreclosure Process
    California’s non-judicial foreclosures process is governed by a comprehensive and exhaustive statutory framework contained in Civil Code sections 2924 through 2924k. One of the Legislature’s purposes in establishing the non-judicial foreclosure process was to ensure that a properly conducted foreclosure sale constitutes a final adjudication of the rights of the borrower and lender. The laws evince the legislative intent to establish an equitable tradeoff of protections and limitations. Thus, the statutory scheme has long contained a myriad of rules relating to standing, notice, and a borrower’s right to cure. Because the borrower is protected by applicable notice requirements the lender gains the certainty of a quick, inexpensive, and efficient remedy. Accordingly, a non-judicial foreclosure sale in California is entitled to a common law presumption that the sale was conducted regularly and fairly.
    Courts hold that it is inconsistent with the comprehensive and exhaustive statutory scheme regulating the nonjudicial foreclosure to incorporate other unrelated provisions. Thus, a successful challenge to a non-judicial foreclosure sale requires evidence of a failure to comply with the procedural requirements for the foreclosure sale that caused prejudice to the person attacking the sale.
    The Origin of the ‘Produce-the-Note’ Theory
    Advocates of the produce-the-note lawsuits point to a single unpublished opinion from a bankruptcy court in Ohio as their legal precedent. In October 2007, U.S. Bankruptcy Court Judge Christopher Boyko dismissed without prejudice fourteen judicial foreclosure actions filed by the trustees of securitized trusts against borrowers who had defaulted on their residential mortgages that had been sold into securitized trusts. In re Foreclosure Cases, 2007 WL 3232430 (Bankr. N.D. Ohio 2007). In each of the cases, the plaintiff-trustee alleged that it was the holder and owner of the note and mortgage to be judicially foreclosed. Yet the note and mortgage attached to the complaints identified the lender that originated the loan as holding the beneficial interest, not the plaintiff.
    In dismissing the cases, Judge Boyko held, among other things, that the plaintiffs’ failure to provide documentary evidence that they owned and held the beneficial interest in the notes in question meant they failed to carry their burden of demonstrating actual injury and thereby the prudential standing requirements necessary for plaintiff’s. Judge Boyko’s unpublished opinion captured immediate attention and two weeks later the New York Times rightly predicted: “Lawyers for troubled homeowners are expected to seize upon the district judge’s opinion as a way to impede foreclosures across the country or force investors to settle with homeowners.”
    A Unique Litigation Business Model
    A Nevada corporation called United First, Inc. appears to be the driving the force behind the wave of produce-the-note litigation that has flooded California’s courts and is spreading to Nevada and Arizona. Although United First is not a plaintiff in the produce-the-note cases and its name does not appear anywhere in the complaints, its many Websites boast that it is the only company doing what it does because “nobody else has figured out how they can profit by doing what we do[.]”
    What United First does is recruit borrowers facing foreclosure into signing a unique “joint venture” agreement with it through which a borrower pays the company a flat monthly fee in exchange for United First paying the attorneys fees associated with prosecuting the resulting case. Initially, United First teamed up with one California law firm to prosecute the produce-the-note cases. In less than one year, that firm filed approximately 2,300 of these cases.
    Borrowers are recruited to sign United First’s joint venture agreement through websites and commissioned representatives that United First says will receive $500 to $1,000 per borrower per month depending upon the number of borrowers they and their sub-agents recruit. The first “frequently asked question” published on United First’s Web sites asks “Is this a scam or a fraud?” The Websites answer the question in the negative, explaining that the borrower does not sign their property over to the company. Until recently, United First also explained that the Joint Venture agreement was not a scam because the attorney that filed the 2,300 cases would not risk his good name by working with a fraudulent company.
    Once a borrower signs the joint venture agreement, it is to add the company as an additional insured on the property and pay an initial fee of $2,250. Thereafter, the borrower pays a monthly fee equal to one-third of the borrower’s annual property taxes, with a minimum fee of $1,350 per month. Borrowers continue to make monthly payments to the company until the termination of legal proceedings and are told that in exchange for the payment of monthly fees, United First is “committed to spend an average of $100,000 plus to fight your case in court.” In an audio interview with a co-founder of United First, the attorney that has represented United First and each of the individual borrowers explains that this arrangement allows his firm to “rigorously defend the case.”
    Under the Joint Venture agreement, borrowers also agree that United First is not a “foreclosure consultant,” a company that represents that it will stop or prevent foreclosure for compensation, as used in Civil Code sections 2945 – 2945.11. Borrowers also agree that there is no conflict of interest created by, among other things, the fact that the wife of their attorney is a shareholder of United First.
    By its terms, if the Joint Venture is successful and the encumbrances on the property are eliminated through litigation, the borrower is obligated to pay the company 80% of the value of the property by either selling the property or taking out a new loan on it. It is difficult to imagine that the typical borrower in default, and who pays United First instead of the monthly mortgage will qualify for such a loan. The 80/20 split is not negotiable, and United First tells borrowers that this arrangement provides them with a windfall while they avoid eviction and continue to live in the house: “Let’s say for example your house is valued at $250,000 at the time we win. That means you have just earned $50,000. What did you do to earn that money? Nothing, except sit back, wait and continue to live in your home.”
    The Legal Claims
    The typical produce-the-note lawsuit is filed in state court and asserts claims under multiple federal laws, including the federal Fair Debt Collections Practices Act, Real Estate Settlement Procedures Act, Home Ownership and Equity Protection Act, Truth In Lending Act, and the Racketeer Influenced and Corrupt Organizations law, among others. The named defendants are typically the lender or institution that commenced the foreclosure proceeding and the trustee scheduled to conduct the sale. Except for the names and addresses of the borrowers, the complaints are nearly identical and allege little more than that each borrower believes that the defendants lack possession of the original promissory note. In connection with the suit, a lis pendens is recorded, thereby clouding title to the property.
    The produce-the-note cases have not alleged that the defendants violated the exhaustive and comprehensive statutory framework that governs non-judicial foreclosures. In an audio interview available on various United First Websites, the attorney that has represented each of the borrowers states that the “law in this area is gray.” In fact, long-standing California law appears to contradict that contention altogether. In California Trust Co. v Smead Investment Co., 6 Cal.App.2d 432, 435 (1935), the party seeking to invalidate a foreclosure sale argued, among other things, that the sale was invalid because the beneficiary of the promissory note failed to transfer possession of it to the trustee. The Court of Appeal rejected the argument and held that “symbolic delivery was sufficient.” Similarly, the United States District Court for the Southern District of California recently held “the allegation that the trustee did not have the original note or had not received it is insufficient to render the foreclosure proceeding invalid.” Neal v. Juarez, 2007 WL 2140640, *8 (S.D. Cal. 2007).
    Frivolous Complaints
    Because the claims are based in federal law, most defendants have removed the cases to the United States District Courts where they are being quickly dismissed by the courts. A review of many dockets reveals that the attorneys for the plaintiffs failed to oppose a single motion to dismiss filed by the removing defendants. Even in cases where the courts granted leave to amend the complaint in spite of the plaintiff’s failure to oppose a motion to dismiss, plaintiffs still failed to file an amended complaint. One such case has resulted in a published opinion. Izenberg v. ETS Services, LLC, —F.Supp.2d—, 2008 WL 5179088 (C.D. Cal. Dec. 8, 2008).
    The failure to respond to multiple motions to dismiss suggests that the latest wave of foreclosure rescue litigation flooding California was designed to do little more than delay foreclosures by clouding title to the properties at issue, while generating substantial fees up front for several months for filing little more than a form complaint. In fact, the ongoing failure of plaintiffs to prosecute their cases caught the attention of a number of federal judges in California, most notably, Judge Manuel L. Real of the Central District of California. In December 2008, Real began holding hearings into the conduct of the law firm that filed at least nine produce-the-note cases pending before him. By the end of January 2009, Real declared the suits to be frivolous, ordered the attorney to repay plaintiffs all monies paid for his services, ordered the attorney and his law firm to pay in excess of $60,000 to five law firms forced to defend the cases he filed, declared the attorney to be a vexatious litigant and barred him from making any future filings in the Central District without the prior written permission of the chief judge. Real also referred the attorney and firm responsible for the suits for criminal investigation by the U.S. Attorneys’ office, the District Attorneys of three counties and to the California State Bar. A short time later, another federal judge in the Central District, Stephen G. Larson, dismissed in excess of two dozen produce-the-note cases in one coordinated hearing.
    The attorney responsible for filing the 2,300 cases was not present to hear the last of Real’s orders. Instead, Real was informed by a criminal defense attorney that the attorney was absent because days earlier he was hospitalized with severe depression and suicidal thoughts. The firm closed its doors that day and was placed into receivership two weeks later by the California State Bar. A recorded message at the law firm advises plaintiffs to make arrangements to pick up their files.
    In the weeks since Real issued his orders, the flood of produce-the-note cases being filed in California appears to have slowed to trickle by copy-cat attorneys. Meanwhile, United First has cleansed its Websites of references to the now-disgraced attorney. For example, it no longer tries to dispel concern over its unique Joint Venture agreement by explaining that a “lawyer of his status wouldn’t risk his good name working with a fraudulent company.”
    Joshua Mandell is an associate in the Los Angeles office of the law firm of Allen Matkins Leck Gamble Mallory & Natsis LLP. He can be reached at (213) 622-5555 or at jmandell@allenmatkins.com.”
    Comments, suggestions and advice needed.
    Thanks



  57. abby
    here is a link to the lender or servicer that are exempt
    http://www.corp.ca.gov/FSD/CFP/pdf/ExemptList.pdf
    hahhaahaha what a waste of paper this country & planet has become



  58. thanks abby
    fwiw i think the [law] is all just lip service..
    bill collectors & financial industry are idiots & thieves who break the law every day because this is how they make $. violating people via debt & the courts.
    i just read 2007-2009 in NY debt collection cases in court went up aprox 200,000 a year ..of those 200,000 ,180,000 were tried without the defendants
    knowledge and or participation. yea… service by mail & death by fees
    hahahahaa whata joke



  59. More for Angry—
    A state law halting home foreclosures for 90 days begins today, but companies can earn an exemption by showing they are already busy modifying loans.
    The California Foreclosure Prevention Act, or Assembly Bill X2 7, which Governor Arnold Schwarzenegger signed in February, is meant to push banks and loan servicers into lowering mortgage payments of homeowners in financial trouble. It reflects a similar federal plan.
    Several companies have already applied for exemptions, said Mark Leyes, a spokesman for the state’s Department of Corporations. The department must grant or refuse an exemption within 30 days, during which companies need not comply with the moratorium. The law impacts loans made from 2003 to 2007.
    A lender or servicer gets an exemption by demonstrating it already has a loan modification program in place, including lowering owner payments to a target of 38 percent of their income going to housing. Methods of choice are lowering the loan’s interest rate or extending its term to 40 years.
    The bill, however, seems to lack teeth. The 38 percent debt-to-income ratio is merely a target.
    And the bill says it does not require a servicer to violate contracts for “investor-owned loans.” The most troubled loans are generally those investment banks packaged and sold, and if the servicing contract says foreclosure is preferable to a loan modification, nothing in the law stops foreclosure.
    The law also says it does not require a bank to “provide a modification to a borrower who is not willing or able to pay under the modification.” I am not sure what “able to pay” means if the target debt-to-income ratio is 38 percent? Maybe if borrowers have to make other hefty payments — on cars, credit cards etc. — then they are out of luck.



  60. to Angry–
    this is the link to the actual Calif. law on the new moratorium on foreclosures



  61. To angry & not taking it—please read the following abou t the 90 day moratorium in Calif.
    February 25th, 2009, 7:28 am · 42 Comments · posted by Mathew Padilla
    (Update: When lenders must comply.)
    Gov. Arnold Schwarzenegger on Friday signed into law a 90-day moratorium on California home foreclosures. But the bill has a key loophole, so it is not clear if it will actually prevent banks from seizing homes of delinquent borrowers.
    The bill was introduced by Sen. Ellen Corbett (D-San Leandro) as an add-on to the California budget package. It covers owner-occupied homes and first-mortgages made from 2003 to 2007.
    However, state regulators can grant loan servicers and lenders exemptions, if they have a mortgage modification program in place that meets certian criteria. These include programs that defer a portion of the principal, lower interest rates for at least five years, or extend loan terms. My impression is most servicers are already doing the latter two, and since there is no requirement they focus on principal reductions, they won’t.
    And having a modification program in place is not necessarily the same as doing a lot of modifications.
    So-Angry–please check further into the laws for this 90 day moratorium



  62. USA PATRIOT ACT of 2001 MAY help save your home if it was foreclosed by
    “WACHOVIA MORTGAGE, FSB FKA WORLD SAVINGS BANK, FSB, A FEDERAL SAVINGS BANK”
    See the laws cited in a recent Ca. Bankruptcy motion. If their lawyers filed Unlawful Detainer Actions against you with the above named fictitious plaintiff, bring it to the court’s attention in writing, “preferably with a motion to dismiss for lack of standing to sue”, asap and have their case dismissed according to these laws:
    Some words have been modified (censored)
    DECLARATION & MEMORANDUM OF LAW IN SUPPORT OF OBJECTION TO GRANT OF STAY RELIEF TO MOVANT:
    During the 6/9/09 hearing of the movant’s stay relief motion, I cited from my opposition memorandum California Civil Codes §§2466; 2468; 2469, and the case of NATIONAL CITY FINANCE CO. et al. v. LEWIS, 216 Cal. 254, 14 P.2d 298, (Cited in an RJN-1 filing) where the California Supreme Court decisively stated that a fictitious name plaintiff can not have standing to sue unless registers prefiling, as a fictitious name entity, and that otherwise its suit must be dismissed in favor of its defendant. With that holding, which has not changed, and will not change, the fictitious plaintiff’s claim to hundreds of promissory notes was rendered void ab initio. The same rule should have been applied to this movant, both in the Unlawful Detainer Action (UD), and in this stay relief motion.
    In the instant motion as I stated this was a matter of unprecedented importance as I believed that several executives of the former Wachovia and World Savings entities had created this artificial name as an artifice to [foreclose on] hundreds of thousands of houses across the nation. As a rough estimate they movants may have [foreclosed on] as many as 1,000,000. houses from the American population in the last two years, with the use of this artifice as the grantee. In fact this is a grave matter of national security, not be taken lightly by this court. It is a matter of national importance that this movant come to this court with a proof of claim as a purported creditor, and show that they are a legitimate entity.
    The first exhibit in my motion opposition was their regulator OTS’ letter clearly stating that the above artifice was not a legitimate name and could not be used in any legal proceedings, which applied to this motion. This is a matter of national security, and a violation of inter alia, 18 U.S.C. §1962 for the collection of an unlawful debts, as defined at 18 U.S.C. §1961(6), as amended by the USA PATRIOT ACT of 2001, Pub. L. No. 107-56, §813, 115 Stat. 272, 382.
    I have been pursing Wachovia, and World Savings, entities for the organized [----------] activities on behalf of all those similarly injured in fact individuals whose houses have been repossessed by the fraudulent artifice named “WACHOVIA MORTGAGE, FSB FKA WORLD SAVINGS BANK, FSB, A FEDERAL SAVINGS BANK”, which artifice probably appears in over a hundred thousand of “TRUSTEE’S DEED UPON SALE” as the grantee, and as a repossession company, is in serious violation of California’s Civil Codes §§2466; 2468; 2469. which dictate the registration of a fictitious entity before it can commence suit.
    Assuming that they had filed the above artifice as a fictitious name entity they would still be in violation of California’s Business and Professions Code § 7503 (no license shall be issued to collection agency or repossession agency with fictitious name similar to any governmental function or agency or to any existing licensee, or with name that may tend to describe function not performed by licensee or that may otherwise be deceptive or misleading); See Annotated, Incorporation of Company Under Particular Name as Creating Exclusive Right to Such Name, 68 A.L.R.3d 1168 (1976). In fact deception and misleading has been the prime purpose of the former Wachovia in its use of this unregistered artifice. “…one lacks standing to sue when it has neither suffered, nor is about to suffer, injury and thus has no right to relief in court.” ( Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 757-758, 27 Cal.Rptr.2d 491; Stocks v. City of Irvine (1981) 114 Cal.App.3d 520, 531, 170 Cal.Rptr. 724.) The movant artifice can not claim an injury as it was neither a beneficiary, nor an assignee, or anything else to have acquired a claim here by committing a criminal act in recording a fraudulent document as a deed to itself, a self which is non-existent.
    I further cited in re hwang, 396 B.R. 757 (2008), in that even if movant was legitimate entity it must have possession, and assignment, of the original purported notes, and that otherwise movant lacked standing. The court insisted that movant “had standing”. How can an artifice have standing while they are barred by, inter alia, section 17918 of the Business and Professions Code (B & P) which states in most part:
    Ҥ 17918. Actions barred until statement filed
    No person transacting business under a fictitious business name contrary to the provisions of this chapter, or his assignee, may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required by this chapter. For the purposes of this section, the failure to comply with subdivision (b) of Section 17917 does not constitute transacting business contrary to the provisions of this chapter.”
    In the above code maintain means: “to commence, institute, begin, or bring.” ( Creditors’ Adjustment Company v. Rossi (1915) 26 Cal.App. 725, 727 [construing Civ.Code, § 2468, from which Bus. & Prof.Code, § 17918 is derived].) Alternatively, maintain means to continue the action, rather than to commence it. (See American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 562.) In either case, I had pled this repeatedly in the fraudulent UD action brought by this movant in the Jamboree court; in my filed opposition documents to this motion; and in my federal case # ################.
    The fictitious business name statutes B & P §§1910, inclusive, series substantially establish the lack of standing of this movant, without resort to anything else:
    Business and Professions Code section 17910 provides that every partnership or association transacting business in the state for profit under a fictitious business name (one which does not *562 disclose the surname of every member) shall file a fictitious business name statement. The code imposes a single penalty for failure to comply with the filing requirements:
    “No person transacting business under the fictitious business name contrary to the provisions of this chapter … may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required by this chapter….” (Bus. & Prof.Code, § 17918.)
    It is also too significant, and related to this bankruptcy case, for this court to further examine and not enter an order granting stay relief to this movant in light of the fact that Section 17919 of the California Business and Professions Code (permits trustee in bankruptcy, guardian, conservator, executor, or administrator to comply with chapter for purpose of maintaining action to recover any sums due to bankrupt, incompetent, or deceased person). [9 Cal.L.Rev. Comm. Reports 601 (1969)].
    CONCLUSION:
    For the foregoing reasons debtor request that the court not enter an order of stay relief in favor of the non-existing movant “WACHOVIA MORTGAGE, FSB FKA WORLD SAVINGS BANK, FSB, A FEDERAL SAVINGS BANK”.
    **********************



  63. neil
    if the servicer has a [ valid ] is it valid?] recorded assignment from the pass-thru trust, is it deficient [ the assignment ] to lack standing in foreclosure , if yes
    how so..
    is it that [ the definition of ] trust is not the actual holder in due course,
    and is the definition of [ holder ] the same as owner? please briefly explain
    tia !



  64. new bill amendment passed 6-15-09 cal has extended the time of foreclosure to sale by additional 90 days… thanks we can use it to futher our cases!!!
    “An additional 90 days has been added, is some cases, to the length of time for a California homeowner to cure a default in mortgage payments. The California Foreclosure Prevention Act went into effect on June 15, 2009. This bill extends the current 90 day period in California’s non-judicial foreclosure process between notice of default and notice of sale to 180 days.”



  65. From the California Office of the Attorney General:



  66. “Effective July 1, 2009, it will be unlawful for a foreclosure consultant, as defined in Civil Code Section 2945.1 to engage in the foreclosure consultant business unless it has registered with the Attorney General’s Office at:http://www.ag.ca.gov/register.php. All foreclosure consultants operating in California must post a $100,000 bond and register with Attorney General’s Office by July 1, 2009 and submit the following information:
    Name, address, and telephone number;
    All names, addresses, telephone numbers, websites, and e-mail addresses used or proposed to be used in connection with their business;
    Copies of all advertising;
    Copies of each different contract the consultant will use with consumers; and
    A copy of its $100,000 bond
    For more information please visit:



  67. I have an interesting situation now for my large fraud, TILA, civil RICO case in California. A single attorney firm is representing both Chase and US Bank. Chase bought my mortgage from New Century right after the loan closed. I think Deutsche Bank was securities trustee as they wired all the funds at closing. US Bank had the assigment from New Century to them right after New Century went into chpt 11 which was a year or so after Chase bought the mortgage.. US Bank bought the home at the foreclosure sale from themselves.
    There are recording irregularities.
    I just find it interesting that one attorney firm is representing both Chase and US Bank in my case.



  68. Neil, when are you having a seminar in California. I know I and my attorney will want to attend.
    Thanks and regards,
    Charles



  69. Has anybody in California had any success filing CCC 2823.6 ? This is one of my causes of action. If the foreclosure is going to net less that what total loan is, the bank has to approve the loan modification.
    I am guessing the only way to reverse this particular code is to appeal to district court and have the higher court rule against the state. This would be similar to a “cram down” by a BK judge BUT it is now law in California.






  70. CORRECTION OF FOLLOWING MODIFIED LETTER BY JACK :
    JACK, on April 13th, 2009 at 9:51 pm Said:
    2-20-2009
    Mr. Joseph Russoniello
    ///
    ///
    fraudulently claimed and received already over $13 [TRILLION] dollars from the Federal government and its instrumentalities. (google: Bloomberg bailout trillions)



  71. I got laid off.
    I got behind(9 mos of unemployment will do that)
    I got the Notice of Trustee’s Sale yesterday posted on my door (dated the day before; no certified mail), sale set for 5/29/09
    I have 20 days.
    What else do I have?
    Oh, I have a THIRD interview with a prospective employer but not until the week of May 18th and two more in the “hopper”.
    Do I have any HOPE?
    Pam



  72. i have 5 days to answer to a unlawful detainer.
    please help with writing an objection to the action
    and also file a motion for federal court on my case
    i have sent QWR 60 day / notice and demand 21 days/ notice to preserve interest on the property was filed / grand deed property / and everything was done prior to trustee sale.
    propery did not sell on the sale date March 6 / received notice to quit / that loan was sold to wells fargo trustee for morgan stanley trust
    I will need a lawyer to help me on my case / if any one is interest please contact me /lsee@hotmail.com
    etuitupou@gmail.com
    i believe we have a chance to keep our home / please advise / i have owned home for 10 years.
    please help.
    elesi



  73. 2-20-2009
    Mr. Joseph Russoniello
    Office of US Attorney,
    PO Box 36055
    450 Golden Gate Ave
    San Francisco, CA 94102-3495
    SSSSSSSS Corp. Investigation
    CC: Mr. Edmund G. “Jerry” Brown, Jr.
    California Attorney General, PIU: 231095
    1300 I St., Ste. 1740, Sacramento, CA 95814
    Dear DOJ AttorneyS:
    I am preparing an amended complaint to my federal case # #########, and multiple other defendants.
    I first intended to compose a QUI TAM complaint seeking to expunge all the mortgages of ###### created since 2000, on the basis of FTCA, for the banks’ having fraudulently claimed and received already over $13 dollars from the Federal government and its instrumentalities. (google: Bloomberg bailout trillions)
    However, I have been struggling with that and yet unable to do so, therefore, my amendment is largely on my own behalf and as a private attorney general under California’s Consumer Legal Remedies Act, to cancel all of SSSSSSS foreclosures of the past few years, in addition to all their existing mortgages. My legal reasoning behind this is substantiated with monetary facts, partly that the bank not only paid no money to create those loans, but also can not produce any of the original notes which they purports to be the beneficiary of.
    In fact the banks, in this country, were instructed to counterfeit money by lending credit dollars, also referred to as “Captive Dollars” in margin accounts. In a usual trading margin account, such as the ones I used to trade in foreign exchange arbitrage (FOREX), I used to have a 5% margin account, that is I needed to put up $50,000. cash to be able to trade $1,000,000. worth of foreign exchange in the spot markets. The $1,000,000. was a credit line, it did not exist as real money and I could not cash it, or take it out of the bank, it was “Captive Dollars”, and the bank did not even have it.
    What the banks did in the last ten years, with a highly engineered plan, as I first documented in my 2004 Orange County lawsuit, also herein attached, was to scheme margin accounts of 1% with the Federal Reserve Corp. that is to be able to have captive credit-dollars of one hundred times of money they could raise from their victim consumers. This way, during 2001-2006, for new mortgages created with money raised from homebuyers, they managed to cash a total of around $50,000,000,000. (Fifty Billions) as down payments, which were paid into the FED-SYSTEM, as real cash money. Then, the FED-SYSTEM, turned that Fifty Billion cash into a one-hundred fold captive dollars of Five Trillion Dollars and unleashed the banks to lend those counterfeit-captive credit dollars to the same people who made the down-payments.
    This criminal lending scheme of the fictitious captive dollars, which are not legal to lend (as they don’t exist), created the limitless lending and the ballooning of housing prices to as much as ten times of their real worth, as they were purchased with phony, non-existing, money to begin with. So, a buyer was sold a house worth $200,000 for $1 million because he had no trouble getting the loan, and if he put up just $10,000. cash the bank could turn it into a $1 million mortgage with pure magic! Or he could buy the same house for $2 millions, because the lenders made greater returns on the bigger loans, which they had sold in advance of creating them!!. So, the minimal teaser payments did not matter because the loans were not held, and were engineered to balloon, and begin to collapse by 2007 in order to steal millions of houses.
    Meantime the criminal banks, which had now created Five Trillion Dollars of phony mortgage, were permitted to tag these, 100 times overpriced papers, as honest mortgages and create 100 times more of phony junk papers, intentionally falsely labeled: “Mortgage Backed Securities”. These new papers, which should have been possibly termed “Counterfeit-Mortgage Option-Contracts” created another $500 trillion of counterfeit papers and unleashed them in the world’s financial markets, promising its buyers, great PONZI returns, which had to collapse, in 2007, exactly as I had calculated in my 2004 Orange County lawsuit, and I am not a Nostradamus. This was engineered to the T.
    The criminal selling of these phony $500 + trillions to the world is what is now causing economic collapses around the world, because these counterfeit-mortgage junks have been dumped on to the world populations, who blindly trusted that the endless derivatives were backed, while the value of the entire US. residential real estate is well bellow $10. trillions.
    In fact this was an international act of global financial, and economic, mass-destruction, sabotage and terrorism, on the world populations, with the FED-SYSTEM as its conduit. I believe the engineers of this international crime against humanity are the same people documented in a recent documentary broadcast by the PBS. The entire program is now on the web and can be googled as: “PBS MONEY MASTERS”. Their ulterior motive, I believe, is to create a new World War, and the complete submission of the world population, through terror and helplessness.
    P.S: GOOGLE “WHO OWNS THE FED?”



  74. Do servicers of loans have standing to appear as defendants in lawsuits to prevent wrongful foreclosures in Ca.? and then go on to file UNlawful Detainer actions?
    Here, I am talking of an apparently non-existing, totally fraudulent, entity which calls itself “Wachovia Mortgage FSB, F/K/A World Savings Bank, FSB, a Federal Savings Bank”.
    I heard that World Savings/Wachovia executives with this trick are probably stealing thousands of homes, without showing it on the books of any existing legal entity. Is this possible Neil, or any one else who knows about corporations laws?



  75. Tony,
    I don’t think (California Civil Code 2923.6) requires the lender to accept/act in the best interest of all parties to accept a loan modification INCLUDES THE BORROWER, (US!!!)
    Here’s my take on it and I hope I’m wrong but it doesn’t say they have to work with a borrower – it applies to all parties in a loan pool – as in the trustee/investors. We aren’t in the pool – our loan backs the pool of securities.
    The other problem is (b), “…if such a modification or plan is consistent with its contractual or other authority.”
    That contractual consistency is, in effect, the PSA and the “other authority” is FASB – the board that writes the tax law accounting rules the parties must follow regarding changes is the value of an asset (a loan) in a REMIC trust.
    California can’t change existing contracts nor modify FASB and Federal tax rules.
    I hope a lawyer can clarify or someone can clarify



  76. riddle me this: What is a “Reverse Enron” ?
    (relevant to my discussions)
    Steven K. Kop
    Attorney at Law
    818.917.3370 or leave a message at
    310.765.7388



  77. Regarding California Mortgage and Deed of Trust Practice, I have split the atom. I have unraveled the secrets of DNA. I have discovered the Rosetta Stone. I now know the true meaning and intent of MERS, and what it means to the enforceability – or lack thereof – of California deeds of trust.
    Steven K. Kop
    Attorney at Law



  78. PBaker: You dont have enough facts to provide intelligently provide any guidance, IMHO. Like virtually nothing, other than there is a default in payments resulting in an NOD.



  79. Tony, Mr. Doan down in San Diego used to say (havent checked recently) that that statute is a CAUSE OF ACTION. Others say the language of the statute is mere exhortation, and intended to protect the servicer from its investors/beneficiaries for breach of indenture or fiduciary duties when it goes about “cutting deals.”
    Personally, the Cal appellate courts will have to sort this one out. Personally, I’m not going to the casino with my personal money on this one. Sorry.
    Steven K. Kop
    Attorney at Law



  80. I have another nuclear device to deal with this, Neil. You know what it is. I know what it is. I’m NOT GIVING AWAY FOR FREE ANYMORE. I hope you wont either.
    Even if you dont, no amateur will in all likelihood be able to detonate the damn thing without blowing themselves up in the process. God bless you all.
    Steven K. Kop
    Attorney at Law
    818.917.3370



  81. Livinglies, I appreciate the feedback. I know this is last notice, but I am going to eviction court tomorrow and will be defending myself. What advice would you have for me? I am planning on requesting that the lender prove they are/were holding the note and 2nd, state that they defaulted on the recent law enacted in July 2008 (California Civil Code 2923.6, that requires the lender to accept/act in the best interest of all parties to accept a loan modification. You feedback is greatly appreciated.



  82. Tony: You don’t have to prove that your “lender” refused to work with you on modification. Use thhat allegation as information — the basis for which you will say that their failure to work with you was a tacit admission that they are NOT the lender, that they are a PRETENDER LENDER and that they have no authority to enter into any modification because (a) they don’t own the loan (meaning they have suffered no injury and thus lack legal standing to do anything) and (b) THEY HAVE NO CHAIN OF DOCUMENTATION GIVING THEM THE AUTHORITY TO RE-NOGITIATE THE LOAN.
    They got everyone hoodwinked. Everybody thinks this is some trick proposed on this blog and that YOU have to prove it. That is NOT true. This is no legal trick. The trick is being played ON you not BY YOU and you are exposing it. The “lender” is not the lender. Look at your title record, you won’t see them. They are merely stepping in with a good bluff because the investors are not willing to face the claims of predatory lending that were used to procure the borrower’s signature. If they win — they just profited by whatever the house is worth beccause this “lender” never put up any money for the funding of your loan. If they win YOU still owe the obligation to whoever DOES own your loan. It’s not up to you to go find them. Through a qualified written request, debt validation letter and indpendent forensic review you should challenge them on the question and leave it to them to either prove their status or not. When they don’t, you don’t go begging for the answers. You attack and win title clear from the mortgage and note.



  83. What methods or tools can I use to prove that my lender did not work with me on a loan modification? A rep from the lender contacted me via phone discussing the new mod. I agreed, but never heard back from that rep.
    Tony



  84. If a pro se plaintiff has filed a COMPLAINT with the clerk, but hasn’t recieved “final determination” from the US attorney’s office can or will the complaint be dismissed on those grounds?



  85. Best way to defend against NOD etc is to learn a lot and then fight them hard. See our seminars coming up in California and Florida. Contact one of the “Lawyers Who Get It”



  86. What is the best way to defend against the California Housing Finance Agency, NOD election to sell under deed of trust??
    Paul

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