non-judicial foreclosure – DTC Systems Inc

The Washington Supreme Court Affirms No Bonafide Purchaser Exists For a Failure to Comply with Statutory Requirements of a Non-Judicial Foreclosure Sale

The Washington Supreme Court Affirms No Bonafide Purchaser Exists For a Failure to Comply with Statutory Requirements of a Non-Judicial Foreclosure Sale

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Charles Cox for this one.

Excerpt

The trial court ruled that despite procedural noncompliance, the purchaser was a BFP under the statute and quieted title in the purchaser. The Court of Appeals reversed, holding that failure to comply with the statutory requirements was reason to set the sale aside and that factually, the purchaser did not qualify as a BFP. We affirm the Court of Appeals ruling.

Here were the issues the Supreme Court was looking at:

Whether a trustee’s sale taking place beyond the 120 days permitted by RCW 61.24.040(6) warrants invalidating the sale.
Whether, under the circumstances of this case, a borrower waives the right to bring a postsale challenge for failing to utilize the presale remedies under RCW 61.24.130.
Whether a bona fide purchaser can prevail despite an otherwise invalid sale.

Conclusion

The nonjudicial foreclosure proceedings here were marred by repeated statutory noncompliance. The financial institution acting as the lender also appeared to be acting as the trustee under a different name; the lender repeatedly accepted late payments and, at its sole discretion, rejected only the final late payment that would have cured the default; and the trustee conducted a sale without statutory authority. Equity cannot support waiver given these procedural defects and the purchaser’s status as a sophisticated real estate investor or buyer who had constructive knowledge of the defects in the sale.

We conclude the trustee sale was invalid. We affirm the Court of Appeals and remand to the trial court to enter an order declaring the sale invalid and quieting title in Tecca as against Dickinson. We also affirm the Court of Appeals’ decision reversing the trial court’s judgments for rent, costs, and statutory attorney fees in favor of Dickinson.

[bold, italics and underline added by author]

Download the ruling here: http://dtc-systems.net/wp-content/uploads/2012/05/WA-Supreme-Ruling-Albice-v-PremierMortgage.pdf

State of Nevada Brings 606 Count Indictment against Two Alleged Robo-signers – Including 404 Felonies

State of Nevada Brings 606 Count Indictment against Two Alleged Robo-signers – Including 404 Felonies

By Daniel Edstrom
DTC Systems, Inc.

The indictment is 440 pages long and contains 606 counts against two individuals. 102 misdemeanors and 204 felonies against one person and 100 misdemeanors and 200 felonies against a second person. It sure seems to me that in a case like this involving recorded documents that mail fraud would be involved. This is because usually the recorded documents are sent through the mail.

Many, if not all of the documents involved in the indictment are Notices of Default. If these are forged documents, how can the non-judicial foreclosures have been strictly complied with? Of course I am not a lawyer, but it would sure seem to me that any document recorded after the Notice of Default would also be void. But who knows, maybe there is another law that says if the parties performing a non-judicial foreclosure commit 1 misdemeanor and 2 felonies you still lose your house. This seems unlikely since most non-judicial foreclosure states usually call for strict compliance with the non-judicial foreclosure statutes.

One notary has already pled guilty to one count of notarizing the signature of an individual not in her presence.

http://dtc-systems.net/wp-content/uploads/2011/11/robosignnotarypleading.pdf

http://dtc-systems.net/wp-content/uploads/2011/11/TracyLawrenceCriminalInformation.pdf

Pro Per Debtor Stops Attorneys for US Bank – in RE Deamicis

Pro Per Debtor Stops Attorneys for US Bank – in RE Deamicis

By Daniel Edstrom
DTC Systems, Inc.

She has been fighting toothe and nail. Nobody was listening. The current bankruptcy judge was skeptical when she showed up in bankruptcy. But now his ruling on a motion for relief from stay blows the doors off her case. It seems that bank attorneys are confused by something that should be very simple for an attorney. The issue is who is the real party in interest? Many have failed to comprehend what is in a name. If a very large bank is included in the name, most just glaze over it and go right to the pleadings. Here it is in a nutshell: US Bank, NA as Indenture Trustee is MEANINGLESS. This is because when a trust is involved, the trust is the real party, not the bank. US Bank is a trustee of hundreds if not thousands of trusts. Naming them as Trustee does not identify an entity that is real. In the debtors case, the bank foreclosed on her home in the name of US Bank as Indenture Trustee of [some Terwin Trust]. This was a non-judicial foreclosure. In the UD (unlawful detainer), which is a judicial case to evict her, the name used was US Bank as Indenture Trustee. The lawyers did not specify a specific trust. She lost that case in state court and before she was evicted she filed bankruptcy. She had to keep objecting and protesting. Eventually the judge came to the realization that something was wrong. In fact the judge ruled as follows:

“The defect cannot be cured, either directly or implicitly, by any ruling this court can make on behalf of the Terwin Trust in the Second 362 Motion.”

I almost fell out of my chair when I read that. If they put the wrong name, they have to cure the problem. Based on my research, in a very large number of cases the wrong party is named. Including yours truly. Have a nice day, I know I will.

Download the case here: http://dtc-systems.net/wp-content/uploads/2011/08/in-RE-Deamicis-Real-Party-in-Interest-For-Publication.pdf

Oregon Does it to MERS Again

Oregon Does it to MERS Again

By Daniel Edstrom
DTC Systems, Inc.

Once again MERS is hammered, this time in Federal District Court by the Honorable Owen M. Panner. This judge understands clearly what is going on and has some serious questions. Read this case to understand securitization and foreclosures. Here are some highlights (there are many others):

Should the beneficiary choose to initiate non-judicial foreclosure proceedings, the Act’s recording requirements mandate the recording of any assignments of the beneficial interest in the trust deed.

Nobody held a gun to the head of the servicers and required them to use non-judicial foreclosure. They have the right to choose which action they wish to use – non-judicial or judicial. The problem in this case (and almost all other cases), is that the servicers are making the wrong choices. Why? Money, what else?. It is not their concern that they don’t qualify to use non-judicial foreclosures. It is not their concern that they have to strictly comply with statutes. In 90% or more of all cases the homeowners are walking away so nobody will know anyway right? Oops, now the titles have to be cleaned up because of the mess left behind by the servicers, which have all but destroyed the title records for foreclosed properties. This means that in the future, somebody else will have to file a judicial lawsuit to clean up the title for a property because the servicer made the wrong choice and failed to strictly comply with non-judicial statutes. By the way this problem is understated and far worse than anyone actually imagines or understands at this point.

Continue reading “Oregon Does it to MERS Again”