Once demonstrated, these indicators inevitably point to fraudulent affidavits and assignments of mortgages filed in the public records.As you examine your loan documents you should be looking for the following:
Loan originators, servicers and their lawyers forge documents with “squiggle marks” that are not the marks, initials or signatures of the actual officer that is notarized to be the signatory.Signature, initials or “squiggle marks” differ for the same signatory from document to document.Squiggle marks and full signatures that are diametrically opposed to the known signature of the signatory.Pre-stamped assignments and notary signatures on assignments, affidavits and proof of claims.
Back-dating of dates on assignments and signatures of officers dating years after either a company is no longer in business or the officers are no longer with the company
In the Plaintiffs matter we are pleading the performance or occurrence of conditions precedent, it is sufficient to allege generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity, and when so made the party pleading the performance or occurrence shall on the trial establish the facts showing such performance or occurrence.
In pleading a judgment or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation is controverter, the party pleading is bound to establish on the trial the facts conferring jurisdiction.
In pleading a private statute, or a right derived there from, it is sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.
Libel or Slander Action
In an action for libel or slander it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff. If such allegation is controverter, the plaintiff shall be bound to establish on the trial that it was so published or spoken. The evidence therefore will be in the recorded documents that were both endorsed and witnessed by a notary. In the answer, the defendant may allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages. A lenders remainder interest I a security that has been distanced from the note is not the justification for deceptive practices, forgery or misrepresentation or other acts of circumvention under the Trustees devises and control.
There is no affirmative defense to a lender using fraud to reclaim a security interest for a note that is lost. Assume this is the case even where the parties seek to establish standing for the enforcement of the deed or mortgage. This is basis tenure for law where the defendant may give evidence to mitigating circumstances to justify a separate fraud such as a cut and paste of fraud.
Judgment
Consent judgment, a final, binding judgment in a case in which both parties agree, by stipulation, to a particular outcome.
Declaratory judgment, a judgment of a court in a civil case which declares the rights, duties, or obligations of each party in a dispute
Default judgment, a binding judgment in favor of the plaintiff when the defendant has not responded to a summons.
Summary judgment, a legal term which means that a court has made a determination without a full trial.
Vacated judgment, the result of the judgment of an appellate court which overturns, reverses, or sets aside the judgment of a lower court.
The expert can document various lengthy history of training and working exclusively at an institutional level in subprime lending was mostly spent as a secondary trader. I now work as an Expert.Witness who appraises a case and testifies in court. I jumped ship in 2003 wrongly thinking the market would soon crash. Little did I know what the industry would resort to in order to keep the lies alive? Hundreds of thousands of American homeowners face losing their homes due to unaffordable loans they received.
The breadth and depth of experience allows for a unique perspective for sharing with the public my views certain procedural knowledge that offers insight into the procedural defects seen to exist from one lender to another the parties consistent procedural must be limited to facts as I try to steer way from any bias. In this market that is hard. My views and experiences on the subject of foreclosure assume you’ll need an attorney. I can merely make a distinction for you case from the presence of unlawful business practices and deceptive acts in a foreclosure. Here’s what is at stake when If you’re facing eviction from a foreclosure.
Filing an action is necessary for keeping your home after determining a wrongful foreclosure claim. Until a court rules on the matter it may be the only way have a way to protect your home. Real Property (e.g. in California) cannot transfer from one party to another where a lien is considered to be defect. The notion is the sale must fail whereby a transfer or conveyance or real property is near impossible. But a closer look at case law will show us the need to seek out a good attorney for determining the grounds for calling a Trustees Sale void or voidable and understanding the remedies where a tort or material violation does exist. Even when a fraud takes place we remind clients the court may not necessarily rule your home is you’re anymore even after determining the deed and transfer was unenforceable.
A predatory loan is something that falls under a theorem of “Mutual Consideration”. It is the shared responsibility by both sides for a willful act offered by one and accepted by the other party. For example, you took the loan under the circumstances as a borrower from a predatory lender and now changed your mind. The courts say I don’t think so. Courts also are sticking with the notion of equitable consideration. Therefore there is no one to blame according to some courts recent rulings. I don’t know about that where a cause of action can be made by an attorney and claims can be made supporting the deed is potentially defective. Another type of claim is made for circumstances where a forgery or recorded document accomplishes the sale from someone committing an unlawful act.
Where it can be shown there exists fraud or deceptive business practices the deed is considered defect and therefore the sale must fail. If the subject loan originated through unfair business practices, then your deed or mortgage maybe argued to be subject to a defect.
That deed or mortgage will “rest disturbed" if subject to substantive arguments brought in litigation. Therein your claims may make the transfer of the property to anyone impossible. In other words the Power of sale and right to acceleration in a non judicial matter are rendered unenforceable. You challenge the lenders security which allows them to claim your home in a default judgment. It is unenforceable from commencement or discovery and subject to a void or voidable determination by the court. Here is the catch you need to be aware of. It falls under fraudulent releases, request for reconveyance and forgeries.
Can a bona fide purchaser acquire title to property involved free of the improperly reconvened deed of trust? The answer is yes! The distinction between void and voidable acts and deeds, suggest it’s not the mere presence of forgery but where forgery comes into play that determines the outcome between innocent victims.
Case Law:
A reconveyance of a deed of trust, executed by the trustee in misplaced reliance on a forged request for reconveyance, is voidable but not void. That is according to a California Court of Appeal that held this decision in the case is Schiavon v. Arnaudo Brothers, 100 Cal. Rptr. 2d 801, 2000 WL 1586381 (2000) . The same rules apply to the reconveyance of the property interest under a deed of trust as to the conveyance of property by grant deed. Here, the lawful trustee under the deed of trust executed the reconveyance of the deed by the signature of its Vice President and with full awareness of the effect of the act. The fraudulent misrepresentation occurred in the forgery on the request for reconveyance. The conveyance was therefore voidable, but not void. The subsequent bona fide purchaser of the property was entitled to rely on it. "The Court then described earlier California cases to illustrate the void vs. voidable distinction.
In Erickson v. Bohne, 130 Cal.App.2d 553 (1955), the plaintiff was mentally and physically incompetent when she executed a deed. She didn’t know she was signing a deed, didn’t intend to convey her property, and received no consideration. The deed was held void, and the plaintiff prevailed over a later bona fide purchaser.
In Wutzke v. Bill Reid Painting Service, Inc., 151 Cal.App.3d 36 (1984), the plaintiff held a deed of trust naming as trustee a corporation that was owned by the trustor/borrower. The trustor/borrower executed and recorded a reconveyance using a fictitious name, purportedly the executive officer of the trustee/corporation. The reconveyance was found to be a forgery and held void, and the plaintiff prevailed over a later bona fide Lender.
In Fallon v. Triangle Management Services, Inc., 169 Cal.App.3d 1103 (1985), the original owner executed a deed to Tolbert, and Tolbert then mortgaged the property. The deed was found to have been procured by undue influence and held voidable, and the bona fide lender prevailed over the original owner.
Now in Firato v. Tuttle, 48 Cal.2d 136 (1957), plaintiffs held a deed of trust naming a real estate broker as trustee. The trustee/broker executed a reconveyance without authority, falsely stating that the loan was paid off. The reconveyance was found to have been unauthorized and voidable, and a bona fide lender prevailed over the plaintiffs.
You should conclude that the facts in the Schiavon case are more akin to those in Firato than Wutzke, where the Court held that the interest of the "innocent purchaser for value" (Arnaudo Brothers) will prevail over Schiavon et al. This case presents a classic example of the distinction between void and voidable acts and deeds.
This case study is not intended to offer a legal opinion where only a licensed practitioner may do so. It is more for giving the pre-foreclosure victim something to consider where affirmative defense should include acts of fraud but mat not necessarily save their home if it goes to sale. In a trustee sale the lender will take back the home in a trustee’s sale or sell it through a trustee sale to a bonifide purchaser. As an expert who testifies in court I can tell you the problems you have with potential deceptive and unlawful acts such as forgery are likely to get you the courts attention. But if discovered after the fact you may find your remedy at best may not include getting your home returned to you. It appears it’s not the mere presence of forgery but where forgery comes into play that determines the outcome between innocent victims.
Therefore do evaluate and consider the need to mount a defense against foreclosure before a sale back to the bank or even worse a third party. As an Expert Witness who provides testimony in these matters I know where to evidence fraud if fraud exists in the file. I often see repeated foul play in the transferring of the asset from the parties to a trust and then after the fact.
Respectfully;
Maher Soliman
Expert Witness
Expert.witness@live.com
November 29, 2009
Stops it! Maher, Nooooo! - You’re talking out both sides of your mouth. You said in the above example GE owns the assets and you cannot attack a public company because of a bad stock deal. So the lender owns the note after all and they can foreclose... Correct? Yes mischief makers I did say that “about the GE stock example”, correct! But these registrants offer pass through certificates. They are portioned out and "passed through" from the lenders beneficial interest to the investors. You want me to be any clearer here. Then join me and let's scream from the highest mountain”
"....HEY INVESTORS....GET IT TOGETHER AND GO COLLECT ALL YOU’RE CERTIFICATES AND PIECE THEM TOGETHER . . . And NOW you can foreclose on me!” You lender tore the LEGAL "TENDER' into pieces and the note is lost forever to the securitization they created.
I walked away from structured finance and private placement fees because of this argument. No attorney; accountant or lewd Cop could ever overcome this argument for denying you your home on a securitization gone badly?
So who wants to call me for an audit? Need a modification? I cannot and never will do an audit or modification! If others do, then kiss them for me. What are you auditing . . . Something the lender does not own? Want to file bankruptcy - careful. Are you bringing a lender into court and re-establishing them as a creditor?
They are not a creditor and that's why BK Trustees want no part of the bankruptcy rip-off report. Where’s the modification that California said no more attorneys or consultants can help out on? THERE ARE NO MODIFICATIONS. THERE IS NO MODIFICATION OR SHORT SALE IF YOU’RE WAITING FOR! GOT IT.
You note is gone and that is that. Fight the security as they cannot evidence the note. What if the “The lender came to court with the note...! So.....what? The lender was not a security player or they left the loan out of a securities offering. No problems counsel, you win.
Oh wait a minute! What’s that? You booked the transaction as a sale under FAS 140-3 instead of debt on your balance sheet. That is what we call securities fraud even under FAS revisions 140-3 and for servicing arrangements under FAS115.
Its your home and an impostor, Realtor, Recovery firm, Attorney . . . Someone is trying to steal it from you.
Peace.
Aviv Harel
1853 ½ S. Beverly Glen Boulevard
Los Angeles, CA 90025
Re: A Harel Counsel Selection and Expert Witness
Dear Mr. Harel
Your assistance is requested for ensuring your need to inform your counsel of my engagement as an expert witness and eagerness to introduce my findings in support of your claim. The anticipated action filed by you as a pro per in lieu of counsel should be subject to proper notice and sufficient proper service.
Our understanding is you are seeking to resolve the matter of a lender borrower grievance concerning the above referenced “loan” information listed above. I want to inform you of our belief that the likelihood for a meaningful alternative to foreclosure is unlikely. You will more than likely lose your home from their structured and persistent efforts in a recovery with value being added to any lender promises.
Other concerns are for your multiple failed attempts to enforce prior servicing agent’s representations and government assurances of lender compliance. Our other reservations are for any remaining hope for a negotiated settlement via modification or short sale maybe extinct and can also hinder your ability for bringing an action or litigation to the matter. Our contention is litigation brought by you as a plaintiff is unavoidable. Therefore, be cognizant of the need to involve your lawyer with regards to a number of outstanding issues that surround your file. The likelihood of succeeding as a plaintiff will require you to determine the following information prior to commencing:
Proposed Attorney: Contact information for anyone pending or retained to represent your claims
Lender Documents: showing attempts for a compromise or settlement
Legal Documents: recorded with the county and affecting title
Cumulative Total: Itemization “basis” in RE for all monies invested in the home to date
Litigant Affidavit: for reciting pertinent phone calls, correspondence and other events
Cash Flow Analysis: the past 24 month’s income and expenses prior to the date of acceptance
These issues are the trustors and lender binding obligation and courts determination of enforceability subject to void or voidable challenges. Therein are also the arguments for an “obligors” commitment to be viewed as a fraudulent interpretation of the use of a borrower’s home as collateral. The initial consideration for any registrant and sponsorship is a review of accounting procedures and are subject to accounting lender to derecognition.
The threat of receivership brought by private right to action under the authority of the attorney general or Federally Insured Depository Corporation “FDIC” will cause “company” assets to become classified as impaired assets is the action brought is successful.
Your lender originated mortgages designated to be added to a bulk pool of mortgage receivables which are considered asset backed “collateralized” investments brought to market by a registrant. The investment was deceptively portrayed as maintaining a certain credit quality necessary for offering the shares to “Trust” investors. The “indentured trust” in anything but as compliant for the quality of assets deemed to meet a minimum standard for CDO and other REMIC assets seen fit for securitization. The assets are highly deficient due to conflicts with the borrower underwriting standards. The claims are the lender desires to convolute the real credit quality of the borrower, institutional malfeasance, derecognition of earnings, impaired asset quality, misrepresentation and both SEC and FTC calls to a wider spread investigation for the concealment of any alleged asset impairment .
Its ability to operate under a nominal operating procedure and for defending a right to a security interest in a borrower’s home subjects the lender and registrant including the trust and its investors to a highly negligent and destructive business practice. The condition of the economy and borrowers who are customers of your affiliated home loan servicing efforts are verifiably damaged and continue to suffer.
The profile for deceptive business practices’ includes willful negligence and unlawful acts brought by a predatory lender. The lender and or its successor have to share liability and divulge their roles operating under the direction of an FDIC member bank. You’re concerned for the beneficiary going to forced sale in a recovery effort is contrary to what was represented to you by the trustee’s office. Another misrepresentation is likely something counsel will want details on subject to their claims and actions.
Understandably I want your attorney to prioritize my findings and to kindly review with you the grounds for relief the likelihood for altered or tampered documents that lack integrity and merit for counter claims and their supporting arguments. My immediate concern is related to the integrity of the recovery. These moves by various interested parties to the beneficial interest are subject to allegations of “latches” lacking “Joinder” and introducing unlawful “estoppels” (estoppels by deed). Instruments used for recoding the instruments such as assignments and notices are produced from lenders software and are dated timestamps on the software programs. Remember these documents are county recorded preprinted instruments and products of government approved software. The software is sold with representations and warrants that assure the owner of maintaining the integrity of records with the county recorder’s office. It’s something to remember should the matter proceed thru interrogatories
Certain evidence are subject to and include various California Code of Civil Procedure sections 473(b), 476(d) and 473.5 and that specify the grounds on which you can base a motion for relief of default from a forced and unlawful sale or default judgment. In any conveyance of real property, a trust deed or deed of trust is critical instrument necessary for a transfer of the beneficial interest or title to the asset from one party to another. We can document herein no specific financial interest in the title to real property, transferred to a trustee, without benefit of assignment or and logical account for true consideration. Does the lender claim to have an option on title or have executed a security deed in lieu of a trust deed? Therefore who is making the claim subsequent to sale for the any counter party who may hold the obligation on a balance sheet and must ledger the entry upon its transfer and sale? Who really is the obligor (FDIC member bank) versus trustor and whereby the other is acting in role of a beneficiary.
In this case the lender is acting as if they own the home from the inception of the obligation. The recorded information (instruments) is defect and somewhat altered. The presumption for deceptive business practices suggest the deed, resting in a defective state will prohibit the transfer or conveyance of title in a sale. The deed, if voidable will cause the sale to fail and allow your attorney to motion to have the sale by trustee rescinded.
Please let me know how I can assist in this effort and what our next step is.
Respectfully
Please review these documents as follows:
A substitution of trustee is required to transfer the rights afforded the beneficiary in a deed of trust to the substituted party. The party being substituted in recognized under an agency agreement and may be recorded in public records. Software application software application
The parties of interest including those known or unknown At such time are required to rely upon a proper recording or evidence of the agent having been duly authorized and appointed. The beneficial interest or its agents are critical to the timely and rightfully appointed authority to execute the instruments necessary to conduct a non judicial foreclosure which includes a right to acceleration and a "Power of Sale".
The substation of Trustee is prepared and recorded on an approved software application offered by various recognized Documents providers as vendors. These systems are typically a feature "documents "module" of the tracking module processing and tracking module offered by these vendors.
the notice of sale shall conform to the minimum requirements of Section 6043 of the Government Code and be recorded with the county recorder of the county in which the property or some part thereof is situated at least 14 days prior to the date of sale. The notice of sale shall contain the name, street address in this state, which may reflect an agent of the trustee, and either a toll-free telephone number or telephone number in this state of the trustee, and the name of the original trustor, and also shall contain the statement required by paragraph (3) of subdivision (c). addition to any other description of the property, the notice shall describe the property by giving its street address, if any, or other common designation, if any, and a county assessor's parcel number; but if the property has no street address or other commone signation, the notice shall contain a legal description of the property, the name and address of the beneficiary at whose request the sale is to be conducted, and a statement that directions may be obtained pursuant to a written request submitted to the beneficiary within 10 days from the first publication of the notice.
Directions shall be deemed reasonably sufficient to locate the property if information as to the location of the property is given by reference to the direction and approximate distance from the nearest crossroads, frontage road, or access road. If a legal description oar county assessor's parcel number and either a street address or another common designation of the property is given, the validity of the notice and the validity of the sale shall not be affected by the fact that the street address, other common designation, name and address of the beneficiary, or the directions obtained there from are erroneous or that the street address, other common designation, name and address of the beneficiary, or directions obtained there from are omitted. The term "newspaper of general circulation," as used in This section, has the same meaning as defined in Article 1(commencing with Section 6000) of Chapter 1 of Division 7 of Title 1of the Government Code.
Trust accounting module automates the task of handling, controlling and accounting for all Trusts received in a way that meets or exceeds currently established legal standards by the California Department of Real Estate and the Business and Professions Code.
Escrow trust accounts
Property management
REO management for investors
Real estate transactions (purchase/sale, lease deposits, etc.)
Funds deposited by lenders for payment of advances to senior liens, insurance, etc.
Funds deposited by borrowers for such things as credit reports, appraisals, etc.
Law offices client trust accounts
The lender will also execute a Substitution of Trustee, naming the new trustee. The trustee will formally institute the foreclosure process by preparing, executing and recording the Notice of Default. Once the Notice of Default is recorded, the title company will confirm the recording, in writing, to the trustee. This confirmation will contain the county in which Notice was recorded and the date and instrument number of recording, along with a disclosure of any Requests for Notice.
By statute, the Notice of Default must mature for three (3) calendar months. This time is often referred to as the redemption period, during which the borrower or junior lien holder and beneficiary may explore ways to cure the default.
If the default has not been resolved during this period, however, the trustee will continue the process by requesting a title update in order to secure information, which may affect the ability to grant clear title after the sale. (Additional mailings may be necessary, including those required under IRS guidelines).
A Notice of Sale will be drawn, positing & publication ordered, mailings prepared and the Notice sent for recordation. These activities must be performed as prescribed under Sec. 2924 ET. Seq. to assure validity of the Trustee's Deed upon sale, the insurability of the property upon conclusion of the foreclosure process, and subsequent liquidation by either the beneficiary or a third party.
Sec. 2924 ET. Seq. preserves the right of the borrower or junior lien holder (except in cases where the balloon payment is due) to reinstate the loan up to five (5) business days prior to the sale. The beneficiary is compelled to accept reinstatement until this "window" has expired. Once this period has expired, the beneficiary may exercise its discretion as to whether or not to accept reinstatement.
Approximately twenty-four (24) hours prior to sale, the trustee will request an additional title update, to be delivered prior to sale time on the day of sale. If the status of title is such that there is no impediment to the sale (such as a bankruptcy, city or county notice indicating an environmental or safety hazard, or DEH ATF/IRS seizure), the sale may be held as scheduled.
The beneficiary will provide the trustee with specific instructions regarding the bid for sale. The trustee will review the bid, audit the foreclosure file, and provide the auctioneer with instructions for the sale. The auctioneer will conduct the sale as instructed, and report the results to the trustee.
The mortgage loans will be secured by deeds of trust, mortgages, security deeds or deeds to secure debt, depending upon the prevailing practice in the state in which the property subject to the loan is located. Deeds of
Trust is used almost exclusively in California instead of mortgages. Mortgages are used in New York instead of deeds of trust. A mortgage creates a lien upon the real property encumbered by the mortgage, which lien is generally not before the lien for real estate taxes and assessments.
Priority between mortgages depends on their terms and generally on the order of recording with a state or county office. There are two parties to a mortgage, the mortgagor, who is the borrower and owner of the Property, and the mortgagee, who is the lender. Under the mortgage instrument, the mortgagor delivers to the mortgagee a note or bond and the mortgage. Although a deed of trust is similar to a mortgage, a deed of trust formally has three parties, the borrower-property owner called the trustor (similar to a mortgagor), a lender (similar to a mortgagee) called the beneficiary, and a third-party grantee called the trustee. Under a deed of trust, the borrower grants the property, irrevocably until the debt is paid; entrust, generally with a power of sale, to the trustee to secure payment of the obligation.
A security deed and a deed to secure debt are special types of deeds which indicate on their face that they are granted to secure an underlying det. By executing a security deed or deed to secure debt, the grantor conveys title to, as opposed to merely creating a lien upon, the subject property to the grantee until the underlying debt is repaid. The trustee's authority under deed of trust, the mortgagee's authority under a mortgage and the grantee’s authority under a security deed or deed to secure debt are governed by law and, with respect to some deeds of trust, the directions of the beneficiary.
Respectfully;
Maher Soliman
Expert Witness
ASSET BACKED SECURITIZATION MEANS NO NOTE
