You are on Earlier Updates mid-June to mid-December 2018
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December 23, 2018
We have learned to wait. Trusting in ourselves and in the Help that shows up when we need it. This way we stay calm and clear in our minds.
Today, just by chance while looking for a reference for writing the post below, I came across one of my mentors' writings. For over five years now a retired attorney Robert Janes has put forth his careful study and plain speak writing and published print and online books to help us throughout our republic.
Once again, he has gone to bat for us in California even though he doesn't practice in this state. And we are now boosted that much further up by THIS.
And in a talk he gave some years ago.
Oftentimes we are in the uncomfortable "unknown" ... yet just as often I have come to know a sense of care and confidence and comfort that is motherly, and full of wisdom and strength. There may be no immediate answer or solution or action to take, yet. There may even be apparent mishaps, but we have learned to trust these too.
And then the clouds part and the way is shown. Just in time for Christmas and a necessary new set of writings for the courts. Of course it is challenging if one has been waiting with one finger and one toehold on the sheer face of this unknown craggy face! But when we see the way up it, sometimes "Hallelujah" is the only thing to say.
Painting by gifted artist Akiane Kramarik at age 11. See https://akiane.com
December 11, 2018
Like the parting of a storm-darkened sky, stars always burning break their shine through. Again. We come into Christmas and the New Year with no need of courts until after the new year if at all, hopeful to solve this conflict soon through negotiation ~ No sale on our home scheduled until after middle of Feb 2019 and even then we pray for resolution sooner, while ready to accept and meet whatever may rise to challenge.
Gratitude for much, for Family & Friends this winter holidays season.
Dr. Masaru Emoto and water crystals ~ how did this crystal form? Watch
December 9, 2018
And so once again .... I don't know what to do exactly. YET.
So I will write.
The controversy is not primarily the fault of the courts or judiciary though our courts are duty-bound to uphold the Constitution and rule according to it. Surely this is not easy when our adversaries cite to statutes and codes of civil procedure which are completely unconstitutional! Still we have the Rule of Law on our side. We definitely have executive-overreach in which our elected Congress has delegated far too much of its own agency. But as to our judiciary: what of an Oath of Office? Article VI Clause 2 The Supremacy Clause still stands. We are as a Republic, a nation of laws, in dire controversy with ourselves as a people! How do we begin to face ourselves and rectify? And WHERE ARE WE THE PEOPLE heard? How do we "in the trenches" of defending against unjust foreclosures contribute to policy in an expedited way? If our elected representatives and legislators tell us only, "File a complaint with the CFPB: we don't get involved in individual cases, thank you good bye" .. ... read "We have delegated our role and answerability to you," then surely We the People object, with great injury we object.
Many like myself on Main Street have become responsible for our own EDUCATION and to deepen an internal compass as we ask this. Unfortunately, lawmaking by legislators who are the people's elected officials have largely fallen into unconstitutional practices, wherein rules or laws bear little resemblance to due process rights and long-standing contract law which requires disclosure and a meeting of the minds - as well as two parties BOTH putting up "consideration" and sealing the contract by both signed hands. These and more have been completely abandoned in our "loan" origination contracts.
We have a controversy about a debt-instrument, a Note; along with a security-instrument a Mortgage or Deed of Trust --- so which party is most responsible for ambiguity in the original contract? The doctrine of Contra Proferentem applies against those who encoded unconscionable adhesions in the contracts they proffered or presented to us to sign!
We see millions of the "Fannie-Freddie Deed of Trust standard uniform instruments" for example, and only later find these were in fact "Confessions of Judgement, improperly executed" pursuant to California law, at a minimum, and unconscionable as well as void [CACivCodeProc 1132-34]. Borrower signature on the Deed of Trust ("DOT") deeded over legal and equitable title to the trustee of that instrument, without disclosure - hence the "unconscionable adhesion" we were unwittingly adhered to. We were made into tenants in our own homes as soon as we signed! Unless we heartily withdraw consent and make that known -- but the initial injury was an invisible blow and we never felt a thing, until the attack of the "foreclosure machine" commenced. Yes we pledged our very homes as collateral -- but we were told we had a "lender" in the lending business as our opposite on that contract when we did not. It has taken We the People years to reverse-engineer this through first suffering through it and then swapping stories and findings. We encourage, uplift and help one another as we go forth. Surely this is one of the biggest tests of some of our lifetimes.
Here's what became apparent, at a minimum: All incentives of the business model are weighted 100% on quick wrangling in a rigged system towards foreclosure, and 0% incentivized for any permanent "loan modification" with that same borrower. A grave injury was the "90 days trial loan mod period" only to end abruptly when a "new servicer" acquired debt collection duties and reported they "have no record of any loan mod -- your sale date is back on in 20 days." So all the noise of President Obama's administration about bailouts translating into help for homeowners through modified loans -- was noise without substance; false propaganda and even worse false hopes and then the rug pulled out from under homeowners when they thought they'd finally gotten to safe ground. We have come to call it "Operation Grand Theft Dwelling." Incentives were structured towards foreclosure: -towards separating THAT "borrower" from that property; and rendering them too debilitated to sue in court and fight back. Period. Several entities have to coordinate the attack and execution: the case is made for RICO actions and cases are making their long tedious way up the judicial process.
Meanwhile back to the original "loan contracts:" That same security-instrument deed of trust had words in quotation marks such as "borrower" and "lender" and "trustee," but no dictionary attached -- yet those words do NOT mean their everyday English designation! NO, once again word magic designed to dupe: Did Fannie and Freddie also patent the most lucrative set of quotations marks ever used on any business contract as their patented "standard uniform deed of trust" paper? A mere two ticks around these key words like "borrower" apparently allowed these entities to designate OUR agency and status as THEY saw fit, and assign OUR legal status as a changing agent with rights and then no rights, with standing and then no standing; a changing status at the whim of "foreclosure-machine" entities as "borrowers" moved along their conveyor belt headed to loss of home dwelling and property No, these were NOT "Grandma and Grandpa's home loan contracts" not in the least. No handshake nor honor here! They were not; and far from it.
These mortgage or deed-of-trust contracts are unconscounable adhesion contracts and arguably void under contract law because borrower unknowingly relegated herself to the status of a mere tenant before the ink was dry on that patented security instrument known as a Deed of Trust! "Unconscounable" means unjust, unthinkably unfair and wrong. An "adhesion contract" is a written contract whose language contains automatic conditions that go into effect as soon as the party signs. Those conditions are sealed as IF the signor consented to them --- but in the case of these "loan" contracts, NON-DISCLOSURE was the name of the game: so this signor and "borrower" in quotes ended up "adhered" to a set of the most unjust unfair and injurious conditions which were not only unconsciounable in and of themselves but doubly so because "borrower" had never consented to these conditions -- how could she give consent when the "profferers" or presenters of the contract deliberately WITHHOLD disclosure? Non-disclosure to "borrowers" was and still is Modus Operandi and standard practice. Surely We the People cry "foul and contract-failure." We cry "No, you have none of my consent to that." We fight back.
To any reasonable logic-minded person this all sounds like CONTRACT-FAIL. One need only read the conditions necessary for a contract to be valid. The "loan contracts" were void even before any "borrower" put pen to paper -- due to the unconscionable adhesions contained in them, along with standard-operating-procedure of non-disclosure to the ONLY signatory on them, i.e. the "borrower." "CONTRACT VOID AB INITIO," a void instrument from its very inception -- before any party signed it!
This is Main Street's legal and lawful position: no valid debt collection actions nor foreclosure can derive from wholly void contracts: negotiation and settlement is necessary -- and if our courts aren't up to that trek up the mountain, then the Court of Public Opinion is called to fill the vacuum.
A decade after the dramatic plunge known as the "global financial crisis," we on Main St. are the living proof in the pudding: these instruments were DESIGNED from he start to dispossess Main Street of our homes and property! The language giving twisted-logic yet "legal license" to do that just are contained in the very Note and Deed of Trust (or mortgage) language itself. O woeful word magic of great injury! Which courts and judicious minds will find it as abhorrent as do We the People, and rule against the falsehood, the injustice, the harmful fraud?
Note: in "judicial foreclosure" states who do not allow "confessions of judgement" on loans for real property; the legislators in these states perhaps recognize this controversial and risky legal status relegated upon the borrower is in fact an unconscionable adhesion putting a borrower and her family at risk of a conveyor belt of sequential unconsciounable adhesions in a non-judicial unsupervised-by-court procedures resulting in a swift court ordered writ of eviction for a county sheriff to throw people out of their homes --- all while homeowners are completely baffled and unable to fight an enemy they can't see!
Back to "non-judicial foreclosure," we borrower's never consented to become tenants for 30 years on a 30 year note -- we never consented to deeding over title in any form to a "trustee." WE COULD NOT CONSENT WHEN DISCLOSURES WERE NOT MADE TO US TO EITHER CONSENT OR OBJECT TO = This is the definition of becoming "unconscionably adhered" in a contract. That appears to be a VOID Contract thereby, does it not?
We say so: and we cry a loud foul to the logical breakdown of these adhesions: it is "CONTRACT-FAIL" to claim the signature of the borrower deeded over title to the trustee pursuant to the security instrument language which adhered her to the legal status of a "tenant" in her own home, yet later in time along the conveyor belt known as the non-judicial foreclosure process, the same borrower is summoned into Unlawful Detainer court with the legal status of a tenant. Again, we maintain that the business model effectively subscribes to the erroneous notion that during the 2 seconds the ink from borrower's pen flowed by signature onto that Deed of Trust instrument, that a signor was a full-fledged "Borrower" with the legal standing to deed over title of her home and property -- if she lacked that authority and agency then the trustee would gain nothing by her signature! A TENANT WOULD NOT HAVE BEEN AUTHORIZED TO DEED OVER DIDDLY SQUAT. But a "borrower" with quotation marks could. How clever is that legalese, how tricky this word magic!
Main Street suggests a more truthful disclosure of the legal position these entities wish to convince the public is fair game no foul. They SHOULD CANDIDLY ADMIT:
"We want our cake and eat it too."
"During the 2 and 1/2 seconds it took to sign her name she deeded over legal and equitable title to the trustee ... How? Well because the adhesions were contained in the very instrument she signed which we told her was merely the "security instrument" pledging the house as collateral in the event of failure to make payments on the Note: but it is that. And more. In fact the instrument ITSELF awards our right to withhold disclosure of any of these adhesions. Quite conveniently we have shielded ourselves by the extraordinary genius concept we can only call "self-decreed impunity." Concurrently we declare that our private patented security instrument is also without violations of any kind whatsoever, by similar decree we make of the very instrument: it too, as are we who proffer it, fully shielded and clothed in SELF-DECREED IMPUNITY. AND SO IT IS.
We celebrate circular logic -- it is our theme. We refute that this refutes logic! We have reinvented Logic in this strange members-only universe of ours. OUR decree, aligned with self-legitimizing circular logic, CREATES our authority to issue the very Self-Decreed Impunity. Clearly its the only way our scheme can appear to be built on a solid foundation of this shifting sand.
We use hidden dictionaries and legalese word magic in all we do. Without it and without absolute non-disclosure our scheme would fall flat. Therefore, the meaning of "Rights" are hereby RE-DEFINED by virtue of the Signed Instrument: IT IS MAGIC INK FLOWING FROM "BORROWER'S" PEN! For even as the ink is not yet dry, the INSTRUMENT WITH SIGNATURE has Redefined "Right" and "Wrong" and we have created a world within the world. Central to this end we employ words disguised as their common meanings and spellings! Absent any dictionary, we apply quotations marks around key words denoting agency of an entity, such as "borrower" and "lender" and "trustee." This way we assert our right to withhold any dictionary -- we aim only to get the ink of a signature on the instrument! We aren't in the business of disclosing the true "nature of this beast!" We would fear these signature-producers may gain the upper hand and fell our business model on the Rules of Logic alone.
Soon enough we come to the time when we must hold the "borrower" to the adhesions contained in the deed of trust she signed because she unwittingly CONSENTED TO BECAME A MERE TENANT at signing. We thereby have no need to prove anything more to her or to the courts about any matter related to our claim other than her and her family are mere tenants illegally occupying real property which we have sold at trustee sale without scrutiny of any governing law or court oversight whatsoever. Unlawful Detainer court hears landlord-tenant matters which is sufficient and perfect really - obviously. We object to "borrower" filing suit against us in state or federal court -- THEY ARE A TENANT NOW, even if they don't know they are. WE HAVE ARRIVED TO THIS POINT AND ITS TME TO WRANGLE THAT PROPERTY AWAY FROM THAT "BORROWER" and her family.
We designed the algorithms for this very purpose in our highly-automated, rubber-stamp conveyor-belt non-judicial foreclosure and proprietary procedures. Clearly these peoples' congressional legislators must be subdued - for the will of the People at large would be our downfall! We have cleverly masked the entire program in legalese and word magic: We operate in OUR PROPRIETARY-UNIVERSE which only resembles the one any "borrower" believes they meet us in -- No, when they engage with us they have crossed a veil into OUR territory where new rules apply: ours. And the first rule is no "borrower" is entitled to any disclosures nor any dictionaries. In our universe the unconscionable adhesion contract IS the key tool to achieve our ends -- and we will prevail for as long as the people believe that "lenders" moved their own money and are incentivized to modify loans; and for as long as judges and courts rule as if these are valid loan contracts in a legitimate industry of residential mortgage lending. Even though ALL this is a front disguised by word magic, legalese and undisclosed adhesions we bind signors too. Clearly in our universe we simply enforce contracts designed for us to benefit in the enforcement -- it matters not what other contract law rules might be in play -- that's all for world of courts -- and -- haven't your noticed we prepared our way by inculcating a culture in which legislators delegate their agency and authority to our shadow entities who remain unnamed and unanswerable to any "borrower!" We have therefore succeeded in instituting a wholly NON-judicial conveyor belt process in which foreclosures bypass courts altogether. Surely sometimes these people fight back using the courts so we have mechanisms designed to bring out the gauntlet to knock them back onto the conveyor belt -- usually this involves bribing their attorneys and working the judges from one angle or another. Throughout this all our senses are un-assaulted."
"NO. The senses of We the People who are the living men, women and children on the land,
are hereby horribly assaulted and irreparably injured by this!
And none of it makes sense in any universe known to humanity to date
in which Logic and Natural law exist.
Justice is impossible without Universal Natural Law, which is that law authorized by the Divine.
NO, WE THE PEOPLE DO NOT CONSENT.
AND NEITHER SHOULD OUR COURTS ABANDON LOGIC AND RULE OF LAW -- OUR JUDICIARY
MUST TRY OUR CASES TO THE FULLEST EXTENT OF LAW AND REASON
BEFORE DISPOSSESSION OF BASIC DWELLING AND PRIMARY RESIDENCE.
WE THE PEOPLE ALSO ACCEPT RESPONSIBILITY FOR HELPING EDUCATE OUR JUDGES
WHO HAVE BEEN OFTEN MIS-INFORMED BY FORECLOSURE-DRIVEN BUSINESS MODELS
AND TO PLEAD THE FACTS ON THE GROUND CLEARLY,
SO JUDGES CANARRIVE AT A WELL-REASONED AND CORRECT RULING."
As for the Note , the debt instrument -- that's a rabbit hole of its own (see links in blue below), but we cry a loud foul for the injury of Theft of "Borrower's" Signatory-Credit, which we repay through real value i.e our labor and production of real goods and services which we trade for income.
Quickly jumping out of that rabbit hole now, however, the "borrower" and homeowner for whom this applies, IS and remains a Real Party in Interest for whom shelter and dwelling and property is her Right by Possession, but who was unknowingly adhered to damaging provisions she never consented to because the unconscionable adhesions were never disclosed = no meeting of the minds = contract fail = void, by operation of law: THIS REQUIRES NEGOTIATION AND COMPROMISE. Main Street insists on TWO-WAY Street! Mortgage-servicers have apparently been inculcated to know only one-way and there is no lamppost marked Fair Play.
First, assess what we are grappling with: We conclude that the two-part Note and Deed of Trust instruments constituting the "loan" are VOID by operation of LAW, which can and have been proven. The Assignments recorded in public record evidence broken chains of title, non-existent entities, fabrication, forgery, robo-signing, back-dating and more, and are rarely but have been judiciously ruled VOID ending with an entity at the end of that "chain" who is not the entity owed money or property.
["The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.” -- SUPREME COURT OF CALIFORNIA Justices, YVANOVA v. NEW CENTURY MORTGAGE CORPORATION, et al (2016) 62 Cal.4th 919; 199 Cal. Rptr. 3d 66, 365 P.3d 845]
The YVANOVA decision is binding on lower California courts, however courts and lawyers insist the principle in YVANOVA applies ONLY to "borrowers" whose homes have already completed a foreclosure sale at auction and hence does not apply to properties in which no trustee sale has YET TO OCCUR.
This erroneous idea is best illustrated in an allegory:
On the ski slopes there's a hill for sledding. Sam is on his sled at the top of the steepest run; his sled has hand controlled steering. Unbeknownst to Sam his steering controls have been rigged and someone or even an automatic robotic program disables his steering just as he takes off down the slippery slope. His hollers of happiness turn into shrieks of terror as he tries to steer and can't. His boots can't slow down the sled and he's heading straight into a pile of massive granite boulders way down at the bottom of the very long hill. He waves he shouts he cries for help but everyone on the slopes and especially the employees of the resort just smile and wave back.
Bartender in the lodge: "It's a dandy place to work! People are sledding and having a great time, yessir! Oh yeah that guy? No, we just wave and smile at them as they pass by.... Look, people head straight down without steering all the time.. it's beyond my pay grade to fathom why in the Sam Hill they do it that way .. but anyway can I get you another drink?"
Finally, quite predictably, there's a massive collision of sled crashing into boulders the size of cars and Sam is a wreck: broken bones, a major concussion and bleeding badly.
"Oh my god!" People and employees rush over. "Sam, you've been DAMAGED!"
"You think?" Sam manages to mutter after coming to from the impact .. "Where the heck was ski patrol .. why didn't anyone even try .. these boulders ... my steering broke at the top of the hill... I yelled the whole way,... this is ..."
"Well pick yourself up ... try to stop all that bleeding will you ... Look Sam, you've just been officially "damaged." You're now at the bottom of the hill after a close encounter with a pile of granite! So congratulations Sam! The damage HAS been done! Off you go now, march on over to the court and file a lawsuit -- you're now able to plead that the forces of gravity have prevailed absent any counterforce to alter its course, and your wretched condition is proof positive. Here, put you hand up like this and hold your eyeball in its socket.. there you go. The courthouse is that way. Oh here's a stick and some rags to splint your own leg -- hike on man! Sam, its your lucky day."
Non judicial foreclosure is a self refuting idea and unjust. The Constitution architectured and instructed principles of personal liberty and justice -- apparently there was a time when the general citizens learned this in school, we don't know what liberty is anymore! LEARN IT THEN, PEOPLE! This idea called non-judicial foreclosure is a violation of Constitutional Amendments V and XIV at least -- the right to due process before dispossession of property. A homeowner/borrower may bring suit in a court of law challenging the non-judicial foreclosure, the case active .. and then a woeful auction happens and the house is sold -- stolen without due process -- only because that court did not issue temporary injunction during active litigation! Yes, before any TRIAL or DISCOVERY is held, grievances denied due process, property taken and eviction -- even during an active suit brought at great cost and duress by a family on Main Street simply fighting to save shelter and dwelling in an equitable manner and by an order of a court of law. In judicial foreclosure states people plead their defense but again too often our Constitution is the last consideration of these courts also, and expediency for everyone else too often leaves families short.
Realize also, according to Neil Garfield of LivingLies blog, this scenario refers to only the 5-10% of Main Street who have the wherewithal to even bring a lawsuit (non-judicial FC states, which number 27 out of 50). Others fall prey to rescue schemes and scams or simply lose their homes. This is the unnatural disaster of over 16 Million households and counting -- that only a very few leaders are even willing to talk about! How many of those evictions were unlawful? Most of them were entirely unjust -- when it comes to primary residence dwelling and investment property alike - the bread and butter of small businesses, backbone of this country. Taxpayer bailouts that never reached Main Street-- or went to a few non profits or contractors who applied a bandaid here or there; with the bulk kept in pockets of "too big to fail banks??" TBTF: That's an obscene phrase, isn't it? That phrase admits welfare handouts to monolithic global banks, while it dishonors true free market "capitalism!" In a true free market of honest competition, if you defraud your customers and cheat your partners your business suffers and may fail! As it should. So what non-elected agencies instead reward TBTF? Oh that's right the DOJ. Is "justice" in that name? Whoever or whatever they are, We the People heartily do NOT consent and cry for an end to evil algorithms evidently in play. Let's hope we've turned the corner at least part way from the 2008-2009 days. Main Street has been jolted awake; at least some have.
So where do We the People turn to to address harms that result from these law-like rules, or these statutes and policies that are simply unjust, unfair and unconstitutional -- architectured with non disclosures, words in quotation marks that do NOT mean what they mean in the English language yet without a dictionary attached, unconscionable adhesions and more? We the People are injured by losing the protections guaranteed by our Constitution. Results have been devastating, and in a ripple effect on Main Street. If we as a people lost these together, then it's time to restore them together. At least the rudder has to point back to the founding of this Republic who threw off tyranny for ideals of liberty and drafted some documents to guide our relations, to guide the future -- or we will fall deeper into greater tyranny again.
THE GREAT AMERICAN EXPERIMENT: Those who love liberty and believe in Natural Law as the founders did (as imperfect as they and we are as humanity) have been forced to educate ourselves on what our founders wanted for We the Posterity. THEY WROTE IT DOWN. Many of us realize that the framers and founders of our Republic and the Constitution urged us to overcome ignorance with education and it appears clear a first step is to become educated on the Rule of Law and on this Republic which is supposed to follow rule of law. We the People must be the ones to insist on rule of law, and the Supreme Law of the Land recognized as such; because if followed and enforced we would have justice far and above the injustice we have today at the losing end of this debauchery known as "non-judicial foreclosure" specifically and in the ravenous wake of a foreclosure-machine beast, without scrutiny of governing law and with consumer protection policies so weak as to be more show than substance and of no effect. We do not consent to this and neither would our founders. [Related panel discussion "Agency Rule: How Congress Can Reclaim Its Congressional Authority" at min 18:00 this writer concurs mostly with Prof. Uhlmann; and at 59:28 Jonathan Turley.]
BACKGROUND: The "mortgage-servicer "is most often if not always a "debt-buyer," but not the original source of funds nor are they the current "injured party" nor do they ever produce proof they represent a current injured party.
Rather a debt-buyer is the current entity and only remaining entity in this scheme who is seeking to collect on something it paid "pennies on the dollar" for or even paid zero dollars and are collecting on contingency with shadow entities, as debt-buyers do. These "mortgage-servicers" also collect fees to run their operations with the carrot on a stick being the big payout when the property is foreclosed at auction. Loan modifications are completely DE-incentivized by the business model at work.
The "creditor" name they put forth is NEVER PROVEN as the current injured party and owner of the debt. Courts may decide to rule as if this party appered and proved its injury - but it never does because it is not the injured party. In fact this phantom doesn't exist OR it evades proving what it can't and courts let them get away with a charade. This is no mystery anymore. All evidence exhibited into courts of law throughout our country bear this out. (see Neil Garfield's blog now a decade strong : https://livinglies.wordpress.com)
Does the borrower then unjustly "receive a free house?" We answer with another question: "In the event of a void foreclosure, would not the debt-buyer unjustly receive a free house? " We all know that any borrower-homedweller has paid out in down-payment, monthly payments made, maintenance and sweat equity most likely, taxes, insurance , loan closing costs etc. There is never a "free house" to the borrower. But what of a debt-collector who is a mortgage-servicer? Did they pay "pennies on the dollar" for the "right" to collect on that note? If any true prior "sources of funds" has long since collected bailout money and/or been made whole by "credit default swaps" or other means, does not this explain why it is ONLY these 'mortgage-servicers' remaining making claim? * The greater schematic and algorithm appears to be that: TBTF banks and others on the inside who hedged their bets, cashed in on credit-default-swaps or sold to unsuspecting buyers rely on these mortgage-servicers to substantiate the claim that a "deadbeat homeowner" needs to pay up or move out -- otherwise they're destroying the economy.
* We now understand upon study that actually "borrower-signature" created the loan proceeds
quite "out of thin air" and admittedly so - it is a fundamental of bank lending in a
debt-based financial system, but this is outside the immediate topic here.
CONTRARY TO MAINSTREAM MEDIA, QUALIFIED HOMEOWNERS WERE ROUTINELY DENIED LOAN MODIFICATIONS EVEN WITH PROOF OF ABILITY TO PAY. Taxpayers were sold something in the bailouts that were not delivered, with dire untold suffering and loss to Main Street. AND NOTHING in the business model of mortgage-servicing incentivizes them to carry a 30-year loan on their books -- foreclosures are the operating directive -- what evil scheme took hold here?
In an earnest attempt to end the foreclosure nightmare one must ask "WHO is the current INJURED PARTY who owns the debt so the homeowner can pay the right person or entity, negotiate directly to settle, or be free of ANY ambiguity who may be on the other end of a 30 year modified loan if they choose to apply for modification? " THIS is borrower's right as a party in a loan contract per contract law, Uniform Commercial Code governing promissory notes [Article 3] and good consumer intelligence given the apparent but previously undisclosed and frenzied buying and selling to and from unknown parties of the Note. Failure of the injured party to appear and failure to prove ownership of the debt is NOT the borrower's fault - it is incumbent on servicers making claim to prove their claim - and if summoned into a court of law - the judge should demand unambiguous proof before that borrower is ordered to pay money or give up their home in foreclosure: this is due process before dispossession of property, a Constitutional mandate. Mortgage-servicers claim their right to keep the identity and proof of the injured party a secret, unproven and unvalidated -- admitting in effect -- that they're collecting for a PHANTOM and this conduct should be regarded as fair play no foul.
The servicer debt-buyer did not buy the note at full face value, neither do they even claim to be the current injured party - they claim to "collect for" an entity who remains undisclosed and without "legal standing", for years upon years - a never-appearing, never-answering, and apparently nonexistent or at least no longer existent entity (!) when sued in a court of law. Additionally, the servicer collects servicing "fees" from various parties incentivized that servicers "complete the circuit" as it were, to keep up the appearance of a valid business model -- that of collecting payments on valid loans for an injured party who of course has proof of its purchase transaction ... somewhere, of course. Record of wire transfer? Cancelled cashier's check? HOW did they become an injured party -- they purchased the debt, right? No such proof of standing and debt-ownership and injury is produced. After years of litigation in which the party and its injury has been repeatedly summoned. They do not enter the case! No, it is the servicer only; by way of their attorney only. Standing is still wanting. The servicer is "Persona Non Standi in Judicio" and no one with standing is before us. Yet the foreclosure attack continues. We cannot consent! And do not owe anything to a phantom, via a void contract. If we aquiesce to this unjust wrong, what are we leaving our children and grandchildren to contend with?
Yet we still have a controversy; because judicial and executive branches have too often been overwhelmed and otherwise compromised by the tidal wave of lawlessness confronting them betwixt them and this 4th branch of government known as "administrative agencies," at the federal and also state level, of so called experts who are not elected by We the People. I'm of the generation that I thought the 4th branch of government was supposed to be the Press! Once upon a time it was. And were it not for independent media and the internet we would have lost that too! When it comes to non-judicial foreclosure procedures - what "expert" was considering Main Street America in this rubber-stamp scheme structured to evade rule of law? Apparently no one from Main Street sat on that committee. Cui bono? Apparently various special interests in the business of streamlining foreclosures -- that's who benefitted. We the People have a report card to submit to our government -- where do we send it?? Some of us want to not only let others know "our stories from the trenches," we insist on that feedback forming part of reform in policy -- where and how do we the people contribute to this reform process? We are capable of a seat at the table -- certainly if we were at the early table we would never have consented to much of what did get a rubber stamp of approval, thus avoiding much harm to the public at large. It is all too evident now that harm-MAKING was the intent: proof is in the pudding.
"Sometimes you put walls up
not to keep people out,
But to see who cares enough
to break them down."
STARTING POINT TO A PROPOSAL FOR EQUITABLE REMEDY: Draft and incomplete: Part of a constellation of concepts braided together and aimed at intended outcomes towards both short-term and longer-term compromised resolution amongst all parties who are part of We The People:
For home dweller and household to secure her Right by Law, an equitable and fair COMPROMISE should be reached wholly apart from void documents (Note & Deed of Trust) wherein BOTH the "borrower" together with the debt-buyer third party "mortgage-servicer" should unite in application to the Department of Justice who collected massive fines from the source-banks, i.e. the "Too Big to Fail" banks -- and disperse an equitable settlement to that "mortgage-servicer," who is actually demanding rights by way of a VOID contract of which no rights and no right to debt-collection exist. Borrower retains lawful possession to primary residence dwelling and lawful title -- in some properly mediated settlement: if it is found the homeowner owes a remaining valid debt to some entity absent any remaining ambiguity, then the homeowner wants to pay the affordable reasonable and responsible sum -- and retain dwelling and property. Those fines from TBTF were in lieu of criminal prosecution and indictments -- they were hefty fines! In the multiple Billions -- the Department of Justice and appropriate agencies who collected those fines should PUBLICLY COMPLETE THE CIRCUIT with the mortgage-servicer! Eviction and destitution on the streets should NOT be the price to our local and national economy and to society as a whole, to satisfy a business model broken by ill-will and theft by fraud. The mortgage-servicing industry needs to disclose that some of those fines funneled into DOJ are THEIR "loot" and just due -- we on Main Street have had more than enough of being looted.
Even in this draft proposal we come away far short of a "free house:" We propose to pay as payment is due. WE RESTORE DIGNITY AND FAIRNESS BY A RETURN TO THE RULE OF LAW. Proposal(s) from We the People on Main Street aim to thwart this crushing of the working people and small business owners who together ARE the backbone of our economy and functional society. We the People say NO to a financial and material civil war amongst ourselves: Employees, administrative staff, board of directors, investors and CEOs of mortgage-servicing companies and foreclosure-driven law firms and enterprises are overwhelmingly members of the same body-politic, i.e., We the People. Therefore, as such we are called to wake up and educate ourselves, then take appropriate action. Our Republic is under siege on our watch.
As stated throughout this writing, clearly a reasonable and righteous conclusion of our conditions should result in a loud "No, We the People do not consent to denial of our Constitutional rights under that Supreme Law of this Republic and under Natural Law, and waive none."
* Maxim of Law: "When a man has the possession as well as the right of property,
he is said to have jus duplicatum - a double right, forming a complete title."
We do not love litigation! Far from it - it has been the most debilitating, draining, damaging, difficult and daunting undertaking amidst deception, non-disclosure, clever word magic known as "legalese," and other unconsciounable adhesion language. Add betrayal by all three attorneys ever hired and it can be a heartbreak - the great American heartbreak. Prolonged litigation cost me a successful healing practice of many years to many regular cherished clients in this community. It has cost strains in family relationships, financial and health. We can not measure it. It is difficult to describe the injury of seeking litigation against the "foreclosure machine" to simply protect and defend our rights to lawful constitutional rules of contract and to retain basic dwelling and to avoid financial destitution affecting multiple generations, neighborhood and community.
So, now that a great wake up call has long-sounded for many of us, especially since the 2008 global financial crisis, and some but not all of us have realized that policies and practices of our governmental bodies have routinely gone wholly in violation of our Constitution, we recognize the folly and we must and do withdraw consent for this deathblow of wrongs. It is lawlessness and grave wrong when a nation's government violates its own supreme law of its land and not only refuses or resists correction but departs further to any resemblance to a nation of laws. This law is known: we can start with the Constitution and Bill of Rights; these have not disappeared! And include Declaration of Independence as foundational. This is both the heart of the problem and of the solution simultaneously: we need return to the Rule of Law and to the organic original Constitution as it is written - and to bring all practices and policies into compliance which currently violate it - in all three branches of the Republic. Were we do to this, most of this nation's problems will swiftly become stories of solutions and remedy!
We have arrived to a moment where adherence to the nation's own Rule of Law is considered almost "revolutionary," even though this Republic was founded on them! But that is wholly backward and incorrect view: if RETURN to Rule of Law that complies with a nation's OWN foundational supreme laws is such a vastly "revolutionary" act, then in truth some type of insurrection has already occurred to cause the diversion, which would appear to be the past-tense insurrectional or even treasonous acts that bring us now so far from the intended outcomes of an imperfect but MUCH more perfect codification of conduct and relations amongst individuals -- i.e. codified in clear words in our Constitution.
Those be inspired words.
Renee S. Ramos Yamagishi, All Rights Reserved 2018
December 7, 2018 Renee Ramos Yamagishi
Still in between active lawsuits we're told an auction is still set for the "postponed" date of January 8, 2019 -- even though various letters and emails of our legal position have bantered back and forth. We are continuing to mount the upward climb started at the filing of the late May case built on the finger and toehold of "California Homeowners' Bill of Rights" legislation which renewed and retained some teeth in January 2018. But we are in between cases due to the strategic retreat from federal court after the state case was removed to federal by opponents. We now have studied and the law and rules and have emerged convinced that removal to federal was improper. So, as a major update to the November 13 post below, it appears clear now that federal court lacked subject matter jurisdiction which is non-waivable and remand required by law. An order for remand would return to protection by injunction, the status quo. It will be up to the federal judge to hear my short and clear finding of the facts and to remand as proper: that is IF he or she also agrees on good and equitable cause to reopen case so the court can hear it. To deny a motion to reopen must force me to appeal; and surmount another way to achieve injunction. Let's hope that is unnecessary. Anyone following this case should know that upon remand we will immediately petition for an order in that state court case for Alternative Dispute Resolution to proceed in a lawful manner, i.e. IN PERSON and according to rule of law. So even though we'd rather be free of legalese thinking during the Christmas season -- we accept that no matter what, as always, nothing steals our deep joy. And if tasked, we meet it; trusting that we must be capable to surmount it -- because whatever has shown up has arrived on the table of a sacred warrior.
Meanwhile we continue to extend the invitation to DIALOGUE TOWARDS REASONABLE SETTLEMENT - which I have been vocal and transparent on to adverse parties: I had been clearly and repeatedly willing to offer a cash-out settlement through outside funding in a COMPROMISED amount. Recently in phone conference Nationstar and Aztec demanded the "full amount" they claim is owed WHICH INCLUDE MORE THAN FOUR YEARS OF "missed payments" DURING WHICH LOAN MODIFICATIONS WERE REPEATEDLY DENIED and Bank of America as servicer COULD HAVE accepted our hard-earned money and been paid all along. Now I should pay for that experience and to these entities making claim absent "legal standing?"
Why sadly, yet its standard practice --Defendants Nationstar and Aztec in a phone-mediation session demanded that "an offer for the full amount or very large almost full amount owed, be made to us by the plaintiff right here on today's phone call, or else we are not interested at all in negotiating and we want the court to hear our Motion to Dismiss as soon as possible." This followed by the federal court's own "mediator" on the same call saying "It seems I will recommend to the judge against mediation, because parties are too far apart in their positions -- and let the case proceed with these motions and then maybe later ... see where the parties are." We had NO in-person Mediation or ADR process yet none more was forthcoming. For these reasons I had to dismiss this federal-removal case without prejudice and renew study of what to do next. Now we are in between cases; exchanging communication out of court. Opposing attorneys have refused my invitation to voluntarily reopen our former state case -- when there is an opportunity for a more amicable course it should first be offered. A motion for remand back to state court must be pled in the federal court.
"Discussion is better than argument:
Argument is to find who is right,
Discussion is to find WHAT is right."
~ * ~ * ~ * ~
November 28, 2018 Even though we have it in writing that a next auction on our home is set for January 8, 2019; it only recently "postponed" from today, so we will be attending the lovely gathering known as a trustee sale where foreclosures occur at noon today on the County of Alameda Courthouse steps. [These "sales" can't occur inside the courthouse because the conduct resembles complete lawlessness and the courts know this.] This Notice of Intent to Sue will be handed out to the auctioneer and any bidders; emailed copies will be in the inbox of all adversaries. Often we learn helpful things and gain insight at these woeful events, and courteous conversation goes a long way, we like to elicit some insight if its at all possible amongst whoever attends -- though its not a good vibe for anyone really. POST-AUCTION: No one was there - I appreciated my two Berkeley police cars there for peace-keeping. Only peaceful objection is all we ever should bring to these; another auction date ending in relief. And renewed motivation for final remedy.
November 13, 2018 written this day by Renee S. R. Yamagishi for and by herself as Real Party in Interest
Federal law in 28 U.S. Code § 1446 should have caused a Federal District Court (FDC) for Northern California to automatically refuse removal from state to their federal court because they CANNOT TAKE JURISDICTION when removal is UNTIMELY, i.e. more than 30 days from the service of Summons & Complaint. Either and both parties are prohibited from joining in removal . FDC took jurisdiction anyway in a manner rogue: Nationstar was served on June 5, 2018 - their attorneys filed Notice of Removal October 3, 2018 after they lost on Preliminary Injunction duly ordered against them.
There was not any motion or amended complaint filed by plaintiff to warrant removal to federal subsequent to the initial complaint which was strictly CA state law; jurisdiction was proper in the state court, aztc ID veiled. Yet, clearly hoping to evade their indefensible opposition to the court-ordered Injunction by our state court judge, the practice of dishonorable word-magic and bait-and-switch was employed by attorneys. Plaintiff was caught off guard prior to discovering their improper execution. The FDC not only accepted the removal which was arguably improper, but the court directed a non-compliant ADR process which was NOT conducted with neutrality but was both activist and adverse advocacy prejudicial to plaintiff. Objections filed - more to come.
All together the veritable ambush forced us into strategic retreat and voluntary dismissal without prejudice, memorializing in writing the conduct of attorneys of defendant Nationstar AND of practices of the federal court itself. Adverse parties and all of them taken together apparently had no plans to actually negotiate in good faith, let alone in-person as federal statutes require. After a mockery of a telephone conversation it became apparent that my position should be memorialized in pleadings into Federal District Court, then in the most recent email uploaded here to the right. This is what we have come to term "guerrilla lawyering" which must be out of the box in creative problem-solving yet with strict adherence to lawful, reasonable, judicious and honorable conduct.
We have nothing but the truth to stand on, and to plead in court that truth in the clearest manner, aimed at a reasonable fair and just outcome. Only silence from opposing counsel for defendants to the email which was also FedExed overnight and delivered to their offices. So the next set of writings will continue appeal to reason from all interested parties; while it also must seek the judiciary anew and this time the jury; for a more studied way to ascertain the word and conduct of those with whom we invite logical debate with rules of engagement codified by long-standing law in a civil society of well-reasoned men and women.
Upcoming blog post on the federal court removal episode to come. New "postponed" auction date of Jan. 8, 2019: these "postponements" have continued every 30 days by online publication by defendant Aztec Foreclosure Corporation in defiance of court-ordered injunction barring any actions "to sell or cause to sell subject property." Aztec's and LOGS Network's official reason for routine violation of TRO's and injunctions in this manner, which constitutes illegal trespass is: "We don't consider it defying the injunction." Meanwhile the very Notice of Default publicly recorded on Feb. 13, 2018, upon which any such trustee sale could issue is THE document the court ruled was improperly executed hence void and the main basis for ordering Preliminary Injunction. State law invites defendants to bring the document "into compliance," which would be reasonable conduct and correction; but defendants refuse to take heed of the constraints placed upon them by court order governing law. Apparently all defendants persist in behaving as if the court's rendering it void means it is not actually void. This is sanctionable and certainly we object.
Preliminary injunction was never dissolved by hearing; it remained the active order of the court when the case was removed to federal court as described. Injunction issued in state court in plaintiff's favor has been rendered moot only by plaintiff's voluntary dismissal without prejudice and only recently, November 5, 2018. The breakdown of all logic by LOGS' justification of this harrassment upon us of public sale dates every 30 days outsizes even the level of defiance of law and order. [Aztec and I agreed that their email is confirmation of slated auction dates, shown on the right here.]
November 5, 2018
Forced retreat: After defendants removed the case to federal court,
we voluntarily dismissed without prejudice when it appeared we may have been heading into an ambush. Our courts are too broken... but I knew this coming in; and I wear the responsibility to actually help my court and judge ... to keep to the narrow rule of law. Almost five years into "guerrilla lawyering" we have learned that we are doubly-tasked: to win our case on the merits by the rules of the game and by standing on the truth (merits) AND we also must recognize the dire constraints of too many of our judges and courts! Constraints upon them by forces even they did not wield into existence. We are learning to point the court to a narrow 'Yes or No question,' and the next question. The beauty of this is TRUTH can be reduced to a simple Yes or No. Lies, on the other hand, rely on contrived confusion, pretzel logic, and practices that Natural Law abhors.
September 2018: ACTIVE LITIGATION CONTINUES in YAMAGISHI v NATIONSTAR MORTGAGE LLC, et al. , being heard in Hon. Judge Michael Markman's court, Dept. 16, Superior Court of CA for Alameda County [RG-18906713]
All filings are on Domainweb YAMAGISHI v NATIONSTAR,
RG-18906713; Alameda County Superior Court of Calif. Dept. 16
8/31/18 Order: DEMURRER HEARING CONTINUED BY STIPULATION. Both parties agree to allow extension of time for Plaintiff to post bond and for Defendants to amend demurrer.
Denied: Tentative Ruling
Issued Ordering Injunction
8/21/2018: Court ordered preliminary injunction preventing any actions to sell our home by foreclosure while case is pending. Our
pleading for injunction as well as a filed Request for Continuance and Affidavit in Support of Equitable Bond exhibited evidence of material violations of Calif.Homeowners' Bill of Rights "CalHBOR" which calls for automatic injunction by statute until in compliance. Servicers must prove due diligence was performed. Nationstar could not evidence they performed their due diligence and could not overcome violations which were duly evidenced, which included my claim that the Declaration page attached to my publicly recorded Notice of Default is a perjured document. Most often and primarily, the mort-gage servicers in CA neglect to hold a phone conference with homeowner to explore ALL alternatives to foreclosure 30 days prior to filing Notice of Default. Calif.CodeCodeProc.§ 2923.5 or CalHBOR MANDATES Injunction when material violations of CalHBOR are evidenced. Tender is NOT required to plead for injunction nor have it granted. Our court did rule plaintiff post bond, so bond is being posted and injunction is won; to our great relief and restoration. Trial begins.
May 29, 2018 "California Homeowners' Bill of Rights" Violations Complaint and Temporary Injunction Application, start page 19. See: LegalDocsPro for template, blog post - modified for case
August 7, 2018
INJUNCTION ORDERED BY OUR COURT
- protection from trustee sale!
INJUNCTION WON TODAY by Tentative Ruling: It is most likely for Preliminary Injunction will issue: No sale of our home while the case is pending, Superior Court CA for Alameda County, civil unlimited case Yamagishi v Nationstar Mortgage, et al.
Injunction protecting against any trustee sale ordered due to my filing suit and pleading for "TRO" protection with evidence of material violations of California Homeowners' Bill of Rights committed by Nationstar the servicer - specifically these servicers in CA and especially the likes of Nationstar routinely record Notice of Defaults in our county recorders' office without first completing 30 days' prior to filing, their due diligence requirements in CalHBOR - they are supposed to call homeowner and discuss by phone all alternatives to foreclosure possible and these can include more than a loan modification - for example negotiating a settlement, outside funding, etc. We pled that Nationstar's Declaration page attached to the NOD they filed was a perjured document.
CA Civil Code of Procedure 2923.5 kept its teeth in after Jan. 1 2018 and WE homeowners in CA are the ones to hold servicers AND THE COURTS to comply with governing law. (Scroll down past the long header section to blog post on CalHBOR https://www.mathews-street-america.net/single-post/2018/05/30/California-Homeowner-Bill-of-Rights-retains-some-real-protections-after-all---I-shall-grab-that-stronghold-and-hoist-up-and-beyond-because-we-all-have-a-part-to-play
Our Judge is smart, appears fair. I used the opportunity in courtroom to speak to all present including judge and opposing counsel and for the record. ME: "Your honor, for clarity I must state: I am not in default. Not until or unless the injured party appears into this courtroom and gives sworn testimony, presents its Affidavit, proves its injury and its standing. Only the injured party gets to declare me in default. Attorney is not a fact witness and not a party to the transaction. Declaration needs to be from defendant and competent witness, not opposing counsel who candidly admitted that six weeks ago he didn't know this case existed!
I am and always have been forthcoming and willing to pay the person or institution entitled to payment, arising from a debt that issues from that June 26, 2006 Note I signed -- but Nationstar doesn't own the debt yet they're the only ones making claim. Neither Wilmington Trust nor M&T Bank have any idea if the trust owns the debt. Prior to this servicer Bank of America denied all my applications for a modified loan despite proof of ability to pay and no lawful grounds for denying me.
Its true I have never applied for a loan modification with Nationstar - but that's because of Nationstar's utter failure as a mortgage-servicer -- in 2013 in answer to my QWR Nationstar wrote to me four different contradictory names for alleged owner of my loan and note. They have continued to be fraught with error -- all my past actions have been to settle directly with the injured party who owns my debt.
I applaud the court's decision to issue injunction; but no, I object to the good judge's use of the word "damages" to defendants -- we don't know if any of these defendants owns the debt. Until we do I am NOT in default - I am in payment-stoppage .... and I hope to settle this soon."------
YES I actually got ALL that said in court today!! How? wow... grace and gratitude ...
People LISTENED. No one objected or interrupted .. I mean ... NOW, afterwards my jaw drops.
HON. JUDGE Michael Markman, who issued tentative ruling granting injunction on the pleadings prior to hearing (yes really OMG): "We're here on the injunction and all we're doing now is deciding the amount of bond." .... [ was that a wink?]
I say, THE GOOD ruled today .... and a part of me is healed in a big way -- the part that had been heartbroken about our courts and opposition bullying us, cutting us off, calling us liars. Today .... I spoke in open court, before a black-robed judge .... and people .... actually ... were HEARING IT
August 3, 2018
Pleading for Time Extension &
Offer to Compromise with opposing counsel brings new insight & revelations
(click on above image of Sybil Ludington, the 16 year old "female Paul Revere" for history of teenagers in the American Revolution}
Court didn't hear motion to continue the hearing for injunction ..... Judge GRANTED THE INJUNCTION instead ... in Hon. Michael Markman's tentative ruling yesterday prior to hearing! Bond required. Agreed. Thank you Your Honor: it is a wise and judicious ruling.
"God, please take this case!
I give it to you, its your case.
From now on, I work for you."
On the job training is whipping me into shape ... not easy. I'm not complainijng ... much! Its not easy but I agreed to show up so there's no giving up now; not after WE have come this far.