Legal Standing At Inception
By Daniel Edstrom
DTC Systems, Inc.
No I am not an attorney and no I am not providing legal advice. This is the name of an article I just read posted on Neil Garfield’s LivingLies blog. The article is from Mark Stopa, an attorney in Florida. Read this article first and then come back and read my comments below: http://livinglies.wordpress.com/2011/12/19/legal-standing-at-inception/
When I saw the title, I thought awesome, they will go back to the origination of the loan. But they went back to the time the judicial foreclosure case was filed. This is a good argument and it should be fairly straight forward, or at least as straight forward as anything can be in a legal proceeding. What I was looking for was what I heard this last week from somebody. They went to bankruptcy court and told the judge that they had evidence that their loan was table funded, which means the named lender did not provide the money to fund the loan. The money to fund the loan came from an unknown and undisclosed third party. The bankruptcy judge made a simple statement. The judge said that if the named originator did not fund the loan, then they have nothing to transfer, and the movant in the motion for relief from stay (the bank) would therefore have nothing. This judge understands that the note is only evidence of the obligation, it is not the actual obligation. Transfer of the note or the security instrument (Mortgage, Deed of Trust, Security Deed or Mortgage Deed) without an interest in the obligation itself, is meaningless. That is the type of standing issue that I would like to see attorneys make in all states.
Is this why under Regulation “Z” table funded loans have the presumption of being predatory?
The Wrong Remedy at the Wrong Time, Part 2
By Daniel Edstrom
DTC Systems, Inc.
New Note added on 1/22/2012 thanks to Simonee. California Probate Code does not seem to apply based on this California Supreme Court decision: Monterey S.P. Partnership v. W. L. Bangham, Inc. (1989) 49 Cal.3d 454 , 261 Cal.Rptr. 587; 777 P.2d 623 (download here: http://dtc-systems.net/wp-content/uploads/2012/01/Monterey_SP_Partnership_vs_WL_Bangham.pdf)
This is a continuation from The Wrong Remedy at the Wrong Time, Part 1 (http://dtc-systems.net/2011/01/wrong-remedy-wrong-time-part-1/).
It turns out that if you want to modify the Trust created by your Deed of Trust, or if you want to determine if the trust exists, you need to petition the court under California Probate Code 17200. If you are not in California, but are in a Deed of Trust state, your state probably has similar probate laws.
In order to petition the court, California Probate Code 17200 has the following provision:
“(a) Except as provided in Section 15800, a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust.”
Right off the bat we find that only a trustee or a beneficiary has the ability to petition the court under 17200. If no trustee is specified, the default trustee is the trustor (the parties that executed the note – i.e. the homeowners). The beneficiaries can easily substitute in a new trustee if that occurs. But what if Mortgage Electronic Registration Systems (MERS) is named as the beneficiary? Consider California Mortgage and Deed of Trust Practice § 1.39 (3d ed Cal CEB 2008) § 1.39 (1) the Beneficiary Must Be Obligee: The beneficiary must be an obligee of the secured obligation (usually the payee of a note), because otherwise the deed of trust in its favor is meaningless. Watkins v Bryant (1891) 91 C 492, 27 P 775; Nagle v Macy (1858) 9 C 426. See §§ 1.8-1.19 on the need for an obligation. The deed of trust is merely an incident of the obligation and has no existence apart from it. Goodfellow v Goodfellow (1933) 219 C 548, 27 P2d 898; Adler v Sargent (1895) 109 C 42, 41 P 799; Turner v Gosden (1932) 121 CA 20, 8 P2d 505. The holder of the note, however, can enforce the deed of trust whether or not named as beneficiary or mortgagee. CC § 2936; see § 1.23.
Continue reading “The Wrong Remedy at the Wrong Time, Part 2”
The Fed has announced it’s intention to change the 3 year right of rescission that all homeowners currently enjoy.
Fed Attempts to Re-Align Rescission Rights
Secure Document Research
The Fed has announced it’s intention to change the 3 year right of rescission that all homeowners currently enjoy. This rule was implemented as a foundational protection of rights for home buyers who have been the victims of any number of consumer lending violations. It’s pretty simple: if a homeowner finds a violation of certain laws as it relates to the loan process, i.e.; a lender fails to disclose material information that might sway a loan decision by a home buyer, then the consumer has an extended period of three years in which to cancel the transaction. Under this scenario, the lender must either bring an action in court for declaratory relief which proves they are innocent of the wrongdoing, or they must refund the consumers’ money and the consumer may re-purchase the property through a different source of financing, or give up the property as a matter of equity.
The Fed, in its’ infinite wisdom, has decided that what’s best for the American economy is to make foreclosures even more airtight by eliminating this fundamental right to cancel. Of course, it is for our own good and the Nations’ best interests…right? I mean, if you did receive a predatory or improperly disclosed loan, you probably shouldn’t have any rights anyway because you really weren’t going to be making the payment, at least that’s what the Fed is pushing on Congress.
This is not only a bad policy, it is the epitomy of the Feds’ brash, Holier Than Thou attitude toward the consuming American Public. Whenever something is touted as being good for policy, or a “necessary measure” for re-gaining economic balance in the housing market, you can rest assured that your rights are being dragged through the dirt by an out of control, under-fed horse named the “ABA” (American Bankers Association).
Call or write your Representatives in Congress and scream long and loud for your rights, lest they be trounced. That’s how you wanted it…right?
Secure Document Research