Wild Deeds, Assignments and ‘Dangerous Innovation’

Wild Deeds, Assignments and ‘Dangerous Innovation’

By Daniel Edstrom
DTC Systems, Inc.

As much as things change, they remain the same.  Wild Deeds, Strangers to Title, Nominee’s, Agents, Evidence, etc., have always been issues in real estate transactions.  Thanks to Monica Graham for finding this case.   Look at this excerpt regarding “dangerous innovation” decades before the mortgage meltdown:

In the present case, we would have to assume the position of Russ and Ethyl Green in the chain of title, that the Crestmore Company had complied with the statutory provisions relating to the use of a fictitious name, and that P. H. Wierman was a member of the firm with the authority to execute an assignment of the note made payable to that firm. Such assumptions, would indeed, constitute a “dangerous innovation.”

This excerpt regards proof of the chain of title:

[6c] For the above reasons it appears that plaintiffs failed to prove a valid assignment of the note and third trust deed to them. As assignees they stand in the same position as their assignor, the Crestmore Company, and must prove their chain of title to the note in question.

This excerpt is in regards to the burden of proof in proving an assignment:

The burden of proving an assignment falls upon the party asserting rights thereunder (Read v. Buffum, supra, 79 Cal. 77 [21 P. 555, 12 Am.St.Rep. 131]Ford v. Bushard, 116 Cal. 273 [48 P. 119]Bovard v. Dickenson, 131 Cal. 162 [63 P. 162]Nakagawa v. Okamoto, 164 Cal. 718 [130 P. 707]). [8] In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when that fact is in issue (Quan Wye v. Chin Lin Hee, 123 Cal. 185 [55 P. 783]) but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary obligee (Gustafson v. Stockton etc. R. R. Co., 132 Cal. 619 [64 P. 995]). Continue reading “Wild Deeds, Assignments and ‘Dangerous Innovation’”

What did the Attorneys for OneWest Learn at Trial?

What did the Attorneys for OneWest Learn at Trial?

By Daniel Edstrom
DTC Systems, Inc.

From the United States Bankruptcy Court Southern District of California Bankruptcy No. 09-19263-PB13 (RS No. CNR-2), the Honorable Laura S. Taylor presiding (Not for Publication).  OneWest submitted a motion for relief from stay as a secured creditor.  This means they are the one with money at risk and there is security for the collateral (a Deed of Trust securing the debtors home).  Attorneys had submitted this information and much more on behalf of OneWest.  OneWest used a Brian Burnett to provide a declaration stating under penalty of perjury that OneWest was the real party in interest in connection with the Stay Motion.  Mr. Burnett also stated under penalty of perjury that: (a) OneWest received an interest in the Trust Deed pursuant to an assignment attached to the OneWest Declaration; and (b) that OneWest is “holder and in actual physical possession of the original Promissory Note dated July 14, 2007 …”.  A copy of the note (unendorsed) was attached to the declaration.  This note was identical to the note attached to the Claim (Proof of Claim).

At trial, Charles Boyle, an Assistant Vice President in the Default Risk Management Group, Litigation Department of OneWest, testified, among other things, that the beneficiary of the Loan is Freddie Mac.  This testimony was not consistent with the OneWest Declaration (by Mr. Burnett).  The court required more information after the trial in order to decide the outcome.

OneWest’s post-trial documents contained factual assertions inconsistent with the OneWest Declaration and claim.  OneWest now provided a new copy of the note with an allonge dated July 24, 2007 evidencing a transfer from Original Lender to “IndyMc Bank, FSB” and bore an endorsement in blank from IndyMac Bank FSB. Continue reading “What did the Attorneys for OneWest Learn at Trial?”

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”

Update on Foreclosures in Oregon

Update on Foreclosures in Oregon

David Ambrose
Ambrose Law Group, LLC

Here is the latest, which while limited to Oregon, certainly can be applicable to any other states permitting nonjudicial foreclosure actions but requiring the recording of assignments of the mortgage or trust deed. 

You may recall the postings about the decision of Judge Alley in U.S Bankruptcy Court in Oregon (McCoy v BNC Mortgage), finding that in to proceed with nonjudicial foreclosures in Oregon, the applicable statute requires that there be a chain of recorded assignments (which, by the way, in Oregon you cannot record a document unless it is notarized), from the original beneficiary to the current beneficiary, and that MERS is not the beneficiary.

Continue reading “Update on Foreclosures in Oregon”