"California Homeowners Bill of Rights" retains some real protections after all
Updated: Apr 11, 2019
[This post was originally published on May 30, 2018 and live since then. Updates are in reverse chronological ]
4/8/2019 BREAKING! next vital information-stronghold to grasp and hoist up to: See today’s blog post HERE.
CalHBOR can be used to win preliminary injunction which is mandatory upon court to order upon a showing of a material violation of some provision of CalHBOR, and THEN follow up with the knowledge contained in the above article with audio reading above. EVEN if trustee sale and filing of a “trustee’s deed upon sale” appears or is imminent or completed TAKE HEART AND READ THE ARTICLE LINKED ON TODAY’S BLOG POST.
Then return to this post and the remainder here will be in the fullest known context (to the best information and knowledge of this researcher and self-represented homeowner in California.)
4/2/2019 NUTS AND BOLTS:
CalHBOR (California Homeowners’ Bill of Rights) is found in the California Code of Civil Procedure §§2923.5, 2923.7, 2924.11 and 2924.17. In addition § 2924.12 dictates what happens before and after a “trustee’s deed upon sale (TDUS)” document has been recorded in the public records of the county where the property is located. The recordation of the TDUS document is a crucial demarcation line that determines the extent of damages borne by homeowners if a material violation of CalHBOR is evidenced and proven as having occurred at some point prior to the recordation of that TDUS.
CalHBOR orders the court to order Injunction plus reasonable attorney fees to bring an action that results in the court’s finding of fact that a “material violation has been committed of § § 2923.5, 2923.7, 2924.11or 2924.17. Injunction, pursuant to CalHBOR § 2924.12, requires a two-part remedy as a matter of law and logic: parties adverse to homeowner are enjoined (prevented) from taking ANY further action “to sell or cause to sell” the property, AND mortgage-servicer and any other relevant adverse parties must bring themselves “into compliance” by evidence of correction of the prior material violation. Once brought into compliance, the offending parties may motion to dissolve the injunction.
Note: some courts have found and ordered Preliminary Injunction on sufficient evidence of material violations of CalHBOR but specified only Part I of the injunctive relief: the Order on Injunction goes only half-way if it does not specifically order Part II, i.e. that offending parties “correct their violation,” which may require, for example, the rescission of an offending and void document they filed in the homeowner’s public record and to “do it over right next time” with the filing of a new compliant document. Therefore, pursuant to CA Civ Code § 2924.12(b) , the homeowner’s Proposed Order in writing as was well as the Court's Order explicitly is compelled by CalHBOR statute to order Injunction that both 1) enjoins offending parties from all adverse actions thus preventing irreparable harm in the face of the violation -- Including SETTING SALE DATES EVERY 30 DAYS BY ONLINE PUBLICATION. Yes, “substituted trustees” continue to publish sale dates on their websites in defiance of Injunctions ordered against them. AND 2) compels compliance by correcting the offense pronto and before the Injunction can be dissolved.
What of CalHBOR's "TREBLE DAMAGES?"
Specifically, and speaking just pursuant to the CA Civ Code § 2924.12(b) provisions (additional causes of action for damages may have merit), the monetary damages award to homeowner increases to “treble” or three-times the loss of equity suffered as a result of a completed trustee sale and the soon-following recording of the TDUS document. This demarcation line is critical, apparently, because the filing of the TDUS sets up a deplorable chain-reaction that somehow mysteriously relegates tenant-status to the homeowner, and invokes “unlawful detainer court / UD court” for a summons and almost always summary judgement with writ of eviction.
California legislators, in drafting and ratifying CalHBOR provisions, recognized the large THUD of a slammed door created by Trustee Deed Upon Sale recordation: the “treble damages” is clearly a warning and de-incentivization built into CalHBOR, designed to compel servicers to do it right the first time and backtrack and do it over before going to trustee sale – if they’ve been noticed a material violation of CalHBOR was indeed committed in the timeline prior. Homeowners seeking a more just and fair final outcome then must study and realize what “treble damages” translates to.
Homeowner’s civil unlimited complaint filed prior to trustee sale coupled with application for Temporary Restraining Order, must claim it will be immediately amended for claim of treble damages to be pled pursuant to CalHBOR (Calif.CodeCivilProc. 2924.12(b) if TRO and injunction are not ordered and parties persist in material violations and proceed to trustee sale in California’s unscrutinized “non-judicial” (and unconstitutional) conveyor belt.
Treble damages means “three times the lost equity” of homeowner – or “$50,000” whichever is greater. “Lost equity” is the difference between the fair market value of the home at the time of a scheduled trustee sale minus the amount claimed as “owed on the loan” by the servicer. In some areas where property values are high and the “amount owed” is lower (yes, even though this amount may be under dispute), the “lost equity” can be significant, and triple that amount can be very significant. Servicer companies should expect homeowner’s suit for damages for that tripled equity (at minimum) if they persist unto the filing of a TDUS in a manner “reckless, willful, or negligent.” Servicer companies do best to read, ascertain and comply with CalHBOR with homeowners.
All these above options (except for the fourth and last one) result in dispossession of the home with zero to a pittance of cash to start over with for that family. As for a loan modification, sometimes that could work but outside funding source is a MUCH better way to cure. and needs to be entered with a great amount of caution, accurate EXPERIENCED KNOWLEDGE and protective provisions.
Here is a truncated version of 2923.5section that focuses on passages speaking on the mortgage servicer’s due diligence requirements placed upon them to hold two telephone conferences with the homeowner to discuss “all alternatives to foreclosure.” We have been seeing that servicers’ attorneys are claiming that they fulfilled this requirement when they have presented only a one-way street: Servicers routinely have a random customer service representative on the phone with homeowner (and not the required “Single Point of Contact “SPOC” individual read a scripted list of three or four “alternatives to foreclosure” which include scenarios such as 1) cash for keys; 2) deed in lieu; 3) short sale; 4) trial loan modification application. They stop there; and have no concept that the homeowner has a list of her own “alternatives to foreclosure” also. Servicer attorneys tell courts they "read off the list" and are "in compliance." Imagine that.
All these above options (except for the fourth and last one result in dispossession of the home with zero to a pittance of cash to start over with for that family. As for a loan modification, sometimes that could work and needs to be entered with a great amount of caution, accurate EXPERIENCED KNOWLEDGE and protective provisions.
Mortgage-servicers’ attorneys stand up and report to the judge that their client is in perfect compliance with “the due diligence requirements” because a random customer service rep had a telephone discussion with homeowner , and spouted off “all available alternatives to foreclosure” read off a short list: all resulting in some version of “We Take Their Home ….” Loan modifications either denied or not offered or the ol’ “Lets make them not want to touch us with a 10-foot pole tactic” so they deny themselves a loan modification with us due to our contradicting the name of their note-owner multiple times – in writing – genius.
The same homeowner may however qualify for outside funding options with a reputable trusted lender who would need to come in with a good loan-to-value and good amount of homeowner equity since often their credit score has been damaged trying to fight these servicers.
In other words, “retaining possession of dwelling” in a lawful achievable manner is also an “alternative to foreclosure” even if that scenario isn’t on the servicer’s list: outside funding or other settlement. There may be a generic list of options on that servicer’s list which is understandable. But no homeowner is “generic,” we are each individuals. The SPIRIT of CalHBOR certainly speaks to this fact as law of the land governing these negotiations! So, in the spirit of each individual homeowner who has lawful right to invoke CalHBOR and lawful conduct, servicers must recite their list and then give the homeowner the floor. What does she -- the homeowner and real party in interest who has lawful possession and wants to retain it --- have on HER list? What are her reasonable, feasible, realistic and achievable “alternatives” to the ultimate damage and irreparable harm of losing home and dwelling for her and her family?
Listen up, servicers: CalHBOR makes this telephone discussion a two-way street; for example “cash for keys” may be considered by you servicers as an “alternative to foreclosure” because it nicely avoids a writ of eviction in UD court along with $5000 and a broom to the borrower (for your "broom-swept clean" idea - gag.) Therefore, to servicers and your attorneys, we suggest you think of this CalHBOR phone conference in terms of “ALTERNATIVES TO DISPOSSESSION OF DWELLING AND SHELTER FOR LIVING HUMAN BEINGS” and then maybe the concept of “homeowner rights” may land in a real-world manner pursuant to the statute passed by our legislators i.e., a
Bill of Rights.”
List A = generic alternatives referenced by servicer.
List B = individual reasonable and achievable alternatives referenced by homeowner.
A + B = C_onference call of ALL “ALTERNATIVES TO DISPOSSESSION OF DWELLING AND SHELTER FOR LIVING HUMAN BEINGS"
UNLESS THE ALGORITHM WAS DESIGNED TO BE HARMFUL TO HUMANITY …
BY THOSE WHO CONSIDER THEMSELVES IMMUNE OR ABOVE US.
Consider it for a moment if this were so, humans are still needed to carry out these deeds in their workplaces: to unjustly and unconstitutionally injure their own and their childrens’
and communities’ overall economic resilience in the process … wow.
SERVICERS ARE LIABLE WHEN THEY MATERIALLY VIOLATE CalHBOR; AND SHOULD BE SUED TO COMPLY
AS LONG AS COURTS ARE ESTRANGED FROM OUR OWN CONSTITUTION, as follows suit laid by our own California legislature, then
WITHOUT CalHBOR'S ORDER ON INJUNCTION,
PEOPLES' HOMES ARE THUS STOLEN WITHOUT DUE PROCESS, FORCING HOMEOWNERS TO SEEK OUR COURTS
In California, defendants are required to comply with a “Meet & Confer conference” (Calif.CodeCivilProc. 430.41) and file a Declaration into the case that “at least five (5) days prior to the filing of their Demurrer pleading, Defendant (through its attorney) held at least one telephone discussion with Plaintiff to discuss the actual points on they plan to raise on Demurrer in an earnest attempt to explore if any of those disputed points can be resolved or even clarified by phone prior to taking up the court’s time in hearing on demurrer.
It would seem therefore, that CalHBOR’s telephone discussion i.e. the mandatory “due diligence discussion of all alternatives to foreclosure” TO BE COMPLETED PRIOR TO THE FILING OF THE NOTICE OF DEFAULT is an excellent and logical opportunity to PRE-EMPT a complaint filed against servicer for violations of FAILURE TO HOLD THAT very discussion! Put another way: If “mortgage-servicer” and “substituted trustee” entities persist in filing Notices of Default without first holding this discussion about foreclosure-alternatives, they should expect to hold that discussion REGARDLESS in the required Meet & Confer conference by phone once homeowner files her complaint against them for failing to conference by phone!
WHY NOT CONFERENCE BY PHONE ABOUT BOTH SIDES’ PROPOSALS FOR ONE OR MORE “ALTERNATIVES TO FORECLOSURE” prior to the filing of the Notice of Default PURSUANT TO STATE LAW: Calif.CodeCivilProc. 2923.5 “California Homeowners’ Bill of Rights – CalHBOR”
rather than have the same substantive discussion forced upon servicer after homeowner has sued (plus attorneys' fees and damages) for material violation of CalHBOR PURSUANT TO STATE LAW: Calif.CodeCivilProc. 430.41 “Meet & Confer” and Declaration required by Defendant?
We recommend the following templates for a Verified Complaint for Violations of CalHBOR, updated for 01/01/2018. Note: Below is a template for a Complaint plus TRO useful before a trustee sale, to prevent the auction with an injunction, and then to develop the case for additional causes of action or to use the protective order of injunction to effectuate a settlement or solution of some kind. FYI: further down below is a link to the Yamagishi v Nationstar Complaint for CalHBOR violations with TRO application for protection – but PLEASE use Legaldocs Pro template instead and not the Yamagishi modified complaint because the extra Yamagishi 4th cause of action did not find favor with the court, whereas the Legaldocs Pro template sticks close to CalHBOR and is best. Make sure to modify the template to fit your specific case.
But if a trustee’s deed upon sale “TDUS” has already been filed against homeowner, this means that the trustee sale has already taken place and the complaint and pleading for injunction has to be modified. So below is not the template for AFTER trustee sale, but this could be modified for that. After trustee sale is when “treble damages” can be pled so there are definitely “causes of action” to bring suit pleading CalHBOR – though it is honestly a more slippery slope after a TDUS has been recorded against homeowner. Not impossible, just that more entities and more ruthless FMLF “foreclosure mill law firms” are roused into action at that point, and often it’s a different law firm than before the sale, who file against homeowner in Unlawful Detainer “UD” court to obtain a “writ of eviction.”
TAKE HEART: homeowners have successfully challenged and prevailed against the improper venue of a landlord-tenant summary proceeding and UD magistrates have granted stay of execution of all proceedings in UD Court pending outcome of a pending civil unlimited case; or ordered for consolidation so the matters before the unlimited civil case are heard in the venue that CAN hear them. Unlawful Detainer court (UD) is wholly IMPROPER FOR DISPUTES ARISING FROM A PROMISSORY NOTE IN WHICH A “BORROWER” AND “LENDER” ARE PARTIES: it is limited to a controversy of $25,000 value or less in a “limited” civil case. Therefore homeowners should have a civil unlimited case pending and active prior to any trustee sale – and have before the court their causes of action AND EVIDENCE that invoke CalHBOR’s injunction mandates for material violations.
Homeowner’s civil unlimited complaint filed prior to trustee sale must claim it will be immediately amended for claim of treble damages to be pled pursuant to CalHBOR (Calif.CodeCivilProc. 2924.12(b) if parties persist in material violations and proceed to trustee sale in California’s unscrutinized “non-judicial” (and unconstitutional) conveyor belt.
The information is the next vital information-stronghold to grasp and hoist up to: See today’s blog post HERE.
CalHBOR can be used to win preliminary injunction which is mandatory upon a showing of a material violation of some provision of CalHBOR, and THEN follow up with the knowledge contained in the above article with audio reading above. EVEN if trustee sale and filing of a “trustee’s deed upon sale” appears or is imminent or completed TAKE HEART AND READ THE ARTICLE LINKED ON TODAY’S BLOG POST.
We use California Homeowners' Bill of Rights (CalHBOR) as opening move as PLAINTIFF in a civil unlimited complaint in CA State Court in order to win injunction first for protection from the irreparable harm through the CalHBOR complaint concurrent with Application for a "TRO", Temporary Restraining Order. CalHBOR by itself does not provide the full remedy but it appears to be one of the only STRAIGHT AND NARROW ways to win injunction to then proceed as violators of CalBHOR i.e. mortgage-servicer and partner entities are compelled to defend their violable actions. The burden of proof for obtaining injunction and CalHBOR's mandates against servicers is much LESS controversial against servicers compared to Quiet Title actions in California, thereby making it easier for courts to simply grant injunction as operation of law: Because CalHBOR injunction mandates an available correction or "bringing into compliance" required of servicers. In other words, "You did this one wrong, but do it right next time and file a new COMPLIANT (Notice of Default (NOD), for example), which sets your auction date back about 150 days total. Because the court has found that THIS current pathway you're on is fatally defective (again, for example, due to a void NOD filed in violation of CalHBOR,) and the injunction is ordered that you can't continue (using THIS particular NOD) due to its fatal defect as evidenced clearly by the plaintiff-homeowner. Here is the court's order that defendants bring yourselves into compliance as per CalBHOR while all adverse actions against plaintiff cease until you defendants motion to dissolve the injunction upon your compliance and corrections, rather than proceed (to trustee sale, or the filing of a trustee's deed upon sale, or the filing for Unlawful Detainer complaint, etc.) as a direct result of your CalHBOR violation that preceded all those subsequent conveyor belt steps in your foreclosure timeline."
Start there, California homeowners. Then, with Preliminary Injunction in place, strategically wrangle and work out a realistic, achievable remedy within reach to the homeowner for resolution and SETTLEMENT. It is clear now about five years after many attempts at quiet title actions in California that this is slippery slope for homeowners, even though it is correct! Why is a Quiet Title Action correct? Because the complaint compels the appearance and answer from the Injured Party and Owner of the Debt, to prove its standing. Thus curing the utter ambiguity most servicers create with evasion and confusion as is their custom!
Look at this way: "Oh, finally there you are managing-level employee of the injured party company, nice to meet you! Let's schedule our out of court negotiation meeting and instruct your legal counsel to stipulate with me to a stay of all adverse actions while we meet in good faith so I can cure your injury and you can also consider the damage of 8 or 9 or 10 years of begging to pay the right party but being refused modified loans, and then needing proof of standing for your company who has only JUST now appeared (whew!); so I don't pay my mortgage to the wrong party and lose credit for all those payments, saddling my children with this same dispute! Yes I do claim my rights as a borrower in contract under basic contract law and the UCC Article 3 for promissory notes (negotiable instruments). But hallelejah, now the world and the court has you finally appear after so many years of utter debauchery from your mortgage-servicer who is thoroughly confused if it was you or about four other entities who might own my loan!
Today is a great day because you're a human being sitting in this courtroom under penalty of perjury swearing your employer paid for value to own my Note! And you brought your proof of purchase transaction right? The cancelled cashier's check, or proof of wire transfer? Great. Wow, my Quiet Title Action is successful! If you had NOT appeared the court should conclude that I have superior title because a third party debt collector or auction-related law firm who both admit they're mere 3rd party debt collectors certainly have no superior title to myself! This is our family home for 50 years continually ... and we've ALWAYS had lawful possession since then until today, so clearly we just need lawful title to be CLARIFIED FOR THE WORLD. Looks like you showing up today, Mr. or Ms. Injured Party is THE start to cure this long controversy whose fight has cost me and my family so very dearly and has been so injurious to date; but we can negotiate all that I'm sure when we sit at a table (yes in person) and do just that with all mutual respect and reasonableness. Does your company prefer cashier's check or wire transfer, or even cash to cure your injury?"
In Yamagishi v. BofA Corp. and Nationstar Mortgage LLC et al, NO injured party ever bothered to appear. Ever. Several law firms and attorneys claimed to represent a very long-winded animal's name, which turns out to be an entity that does not appear to exist nor does the named "trustee of the entity" have "any loan-level data" whatsoever, meaning that ONLY the 3rd party servicer is tasked and endowed with the ultimate exact knowledge of an injury ... Ummmm... even if the injured party has no clue. Naw. Nope. Sorry. That doesn't work. The injured party has to have proof of injury--- you can't have proof without having knowledge first, right? The 3rd party debt collector servicer has no proof just because it prints out account data it has in its computer database.
The servicer may have knowledge of how many months of "payment-stoppage" or "missed payments" may be logged for that account ...but an "injured party" this knowledge does not make! I can know that my neighbor owes 12 more months of car payments on a car note, and that he missed the last two months of payments: if I print that account data out on my laser printer and hand it to him, I don't get to repossess his vehicle! In this example my neighbor knows its the dealership up the street who owns the note and not myself -- but Main Street families are being attacked only by the "rogue neighbor" and the original car note has no owner coming to claim it -in over four-and-a-half years of continual litigation in three different complaints in which the debt-owner is duly summoned. If your car dealership disappeared and you've been summoning whoever it sold your car note to for YEARS ... would you pay your crazy neighbor with his laser printed note waving in your face? Or let him take your car? How about no.
And then, check it out -- there's some entity on the face of the earth, hurting to the tune of half a million dollars or so ... and they aren't beating down the doors of the courtroom to collect? Why on earth would this hurting party owner of my debt take 7, 8, 9 TEN YEARS to even manage getting paid? Maybe they need hire better debt collectors.. . you think? Or how about if they themselves receive a summons and complaint to claim their property -- how about taking the revolutionary action of SHOWING UP? They're hurting for half a million dollars and they're going to hire a law firm who says to Plaintiff-homeowner:
"We represent only the mortgage servicer. Oh.. what's that you ask? You're asking if we also represent the owner of the debt? The long-winded animal name that is a trust that we don't really know how to represent that animal entity? OK, Ummmm can I get back to you on that? --- Hi, yes thanks it took us a few days so I appreciate your patience, so we also represent the Trust. Yep, and the way that works is that sometimes "the Trust sort of spins off servicing to another servicer" * And in this case, it spun off its servicing to the servicer we represent... So, yeah, our client knows everything you need to know about your loan, so please don 't ask to speak to live human being at the Trust, because we found out no one is there because it doesn't exactly exist -- here over here -- yeah good, I'm waving papers here okay, our client the servicer represented... by yes our firm. All is in order! And I'm so glad your question is answered now; and .. oh sure.... that's another good question, so anything not quite clear here on this call will perhaps be more artfully pled in the demurrer." *
*direct quote from opposing counsel, in the required "Meet & Confer Conference" by telephone or in person, California Code of Civil Procedure 430.41
Andean condor, 10 ft wingspan
Meanwhile back in the courtroom, a debt-owner remains very very thin, and very very quiet.. The courtroom silence is deafening; once attorneys silence their hearsay and paper-waving. A deafening silence indeed. While a good judge with wrinkled brow reads though homeowners' exhibits of public records and letters penned by her attackers and publicly recorded ... Something is wrong with this picture. And injunction pursuant to CalHBOR is an excellent start to the Homeowner's Cry: "Come to Reason Time is Upon Us. Ceasefire. We must settle. And end this injurious civil war; while keeping American families housed and not out on the streets. We Americans must not cannabilize one another, while pleading allegiance to an alien parasite touting itself as a "business model," sold by entities whose names far evade all this costly caustic litigation - for both sides.
Excerpt from the paper above: "Being behind on mortgage payments does not mean that the homeowner’s debt is owed to just whoever demands payment, even when (the one making demand) knows that (the particular homeowner's) mortgage payments are not current. A homeowner’s payment history is available to many who serve the foreclosure machine (industry) so the fact that a person is familiar with payment history cannot be construed as conclusive evidence that that person is or represents the person actually owed the debt by law.
California’s Supreme Court knows that demands and threats are made by persons with no right to do so. “Banks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank's deed of trust.” Yvanova v. New CenturyMortgage Corporation, 62 Cal.4th 919, 938 (2016)."
Blog post introducing the author, retired attorney and the man who coined the term "Foreclosure Machine."
AND even then we are in a court of LAW are we not, so if ambiguity persists, Plaintiff has the right to insist appearance of the injured party itself while asserting the lawful truth that attorney is not a fact-witness, not a party to the transaction, and any statements or declarations or affidavits by attorneys only and not the real party in interest and injured party are hearsay and inadmissible to establish fact as a matter of law. At all. WHERE IS THE INJURED PARTY?
"Statements of counsel in brief or in argument are not facts before the court and are therefore insufficient for a motion to dismiss or for summary judgment."
In foreclosure litigation, and according to Negotiable Instrument Law under UCC Article 3 / same as CA Commercial Code 3301, the borrower has the right to know on any given day WHO is opposite her on her promissory note, which is a negotiable instrument. Without the appearance of the Injured Party into the Quiet Title Action, that party has abandoned their claim. THIS is why QT Action is the correct complaint for homeowners to file when we insist we are NOT in "default!" NO, we are NOT. Because ONLY the injured party and owner of our note and debt has the LEGAL STANDING TO DECLARE "DEFAULT" against borrower. Because, further, if there is no injured party there is no injury. And if there is no injury there is no default and no party with standing to declare it.
A more interesting question should be WHY is the injured party debt owner abandoning its claim by falling to appear, yet the business entities and too many courts are trying to prop up our state LEGISLATORS' dereliction of Constitutional duty-- NON-JUDICIAL FORECLOSURE IS UNCONSTITUTIONAL BY DEFINITION. See Bill of Rights - Amendments 5 and 14 "Right to due process before dispossession of property." Additionally "borrowers" are "real party in interest governable under contract law; yet we are stripped of our rights as parties in contract by a host of unsavory, unjust and unlawful "business practices of a Foreclosure Machine." We do not consent, nor waive our rights as equal and opposite parties to a debt-owner with proof of standing. Put another way: here we be homeowner and home dweller with LAWFUL POSSESSION - we live here and we didn't kill or steal or commit any wrong to be in physical possession as the dwellers here.
Back to California Quiet Title Complaint compared to CalHBOR Complaint: in QT Action there is no automatic injunction with a clear very narrow trench of pleaded facts, there SHOULD BE but there isn't.
Homeowners need to be ready to settle with the true proven owner when it shows up into the case! We are not trying to win a free house - we are trying to cure the debilitating status of foreclosure and the only way to do that is to negotiate directly with the true owner of our Note and not its debt collector - that is the HEART OF A TRUE HONORABLE QUIET TITLE ACTION FROM THE HOMEOWNER. A QT action rests on contract law and negotiable instrument law at a minimum. I refrain here from even mentioning evasion of enforcing our Constitution of the United States Republic defined as "a nation of laws," because... well (sigh) we would not even be battling the abomination of "non-judicial foreclosure" in California and 32 other states if legislators and officials actually upheld the founding document and Supreme Law of the Land, i.e., the Constitution of our nation, which some entities clearly wish to bury but has not and will not die. Article VI, Section 2: The Supremacy Clause. Do law schools still teach our Law? We have to shake our heads and wonder.
We recommend the following templates for a Verified Complaint for Violations of CalHBOR, updated for 01/01/2018:
We entered a Note and its Security Instrument by signature (sole signature of "borrower" no other entity signed but nevertheless we consented to enter a contract by way of a debt instrument, secured by our home pledged in the security instrument.) This is a loan and a negotiable instrument - the "lender" can sell it and it can change hands BUT we claim UCC Article 3 and CA Commercial Code 3301; that obliger/borrrower/debtor HAS THE LAWFUL RIGHT on any given day to know the identity of the one intact identifiable party who is the obligee/ creditor/debt-owner opposite her on the Note. If this entity does NOT appear when challenged to defend its claim in a Quiet Title Action for which it is duly summoned and in fact for which a wide long list of all remotely possible entities who have claim are summoned, along with the "mortgage-servicer" who insists it represents the injured party but itself is not that party ... plus there's newspaper publication and social media posts and blog articles and ..... drum roll please.. curtains part... and TA DA! Oh no.... its the same ol' mortgage servicer with another poor ol' law firm - ONLY - again. NEVER does the debt owner they claim to represent make an appearance. So we have hearsay upon hearsay: attorneys for 3rd party debt-collectors only. And no real party of interest opposite the "borrower" yet again.
There appears no cure to non-appearance into a court of law, for the injured party. In law, this is known as "lack of subject matter jurisdiction," and there is not even a case before the court. The result, at law, is that any injured party - if one exists at all - abandoned its opportunity to stake its claim. Remember the neighbor with the car note? His dealership not only packed up and left town, it may have not even sold the car note, it may have cashed in on insurance it bought for defaulting car notes and the insurance agency may have been bought out or bailed out or paid hush money or .... You see? Then here comes the crazy neighbor who just bought laser toner in bulk waving a fresh invoice and repo paper in your face -- seeing that no one else is trying to take your car. Please, reader, if you're not a homeowner who has circled around this scenario a few times -- you may think I exaggerate for poetic license. This is precisely what we are battling -- a crazy rogue "neighbor" who by now has bought stock in laser toner production start up. Well with the additional element of deliberate business model set-up and incentivization structure to these "mortgage-servicers" so their attacks and foreclosure mill law firm partners (FMLF) would serve to do the big CLEAN UP ACT and complete the circuit and perpetuate the "deadbeat homeowner MYTH" so we would not look at the back-end payouts and payoffs which include such "exotic financial instruments" as Credit Default Swaps and a whole menu of items (for another blog post).
We homeowners have actually always been the backbone of this nation's economy: precisely because we are working people and small and medium business owners in overwhelming numbers. It has been our lawmakers and unelected bureaucrats as deadbeat legislative and law enforcement officials and partners --- turning their back on their oaths and our Republic's sacred Constitution and Rule of Law... It is a many tendrilled abomination but the "beat" has been slowly "dying" decades ago to the tune played by a very few elite enemies of humanity. We homeowners, jolted awake, many more awakening; invite We the People not to doze off any longer! Creative solutions are within reach but it will take whistleblowers and ..... more that awaits divine guidance .. that's the best this writer can put down at midnight on 2nd February 2019 ....
The courts, our honored judiciary, really is the only arena for the most immediate correction of so many decades of trending. Back to litigation: at least two parties participating in the lawsuit have some stake in the action because attorneys are showing up making adverse claim to homeowner. But they must be failing to disclose their true interest: what has incentivized them to attack so hard - NOT for modified loans - oh no, these servicers are completely DE-incentivized to modify loans! They attack to steal our homes. They are either collecting on a promissory note that has been sold and resold and is owned by some entity today, and that is secured by my house in the event of nonpayment --- or they don't have any business attacking me demanding rights arising from the Note! Foreclosure is a right arising from a Note that is in default, declared by the owner of the Note with standing to declare default, and after it is duly ascertained that there is absolutely ZERO reasonable adjustment or agreement such as modified loan or renegotiated terms of the Note such that the ONLY recourse is dispossession of the home from the homeowner. Even though the note-buyer bought a debt instrument whose payment schedule was over a 360 month periodic (30 years) with monthly mortgage payments.
Homeowners have had to conclude the business incentives have become completely skewed where rogue entities are incentivized only to commit lawless injury against home dwellers so they can preside in partnerships with other rogue entities to flip the house leaving misery and ill will in the wake. Main Street does not consent. And as soon as the minions of the foreclosure machine, including their lawyers and servicing personnel wake up that they are killing their own children's chances at having any sane sound financial and finance system ... the sooner we all cooperate to take back our Republic from an insider take-down. When our Constitution and Divine Law is trampled, so is our quality of life.
Yet homeowners are forced to defend against the injury caused by the rogue lawless breaking of the rules and Laws of our Republic! This woeful way damages people breaking laws yes, but also breaking too many hearts and homes, marriages, emotions and minds -- WHEN do we call CEASEFIRE as reasonable human beings and join forces to pressure the Department of Justice and other regulatory agencies to share some of those massive Billion dollar fines with some of these misguided servicers who keep unjustly attacking homeowners when they are LAWFULLY PROHIBITED FROM DECLARING DEFAULT because they are only third party debt collector mortgage servicers????? I have suffered trauma and am NOT functioning as I would in my best health! I could also be destitute and bereft of spirit and spunk had I just let entities commit grave grand theft of our material sustenance and dwelling, our home since I was but a toddler. So I"ll leave this rant and run-on sentence right here.
Homeowners have woken up, we say to Wall Street, Dept. of Treasury, Dept of Justice, various alphabet soup agencies of government whose names defy your register of actions, white-collar crime investigators, law enforcement, legislators both state and federal, regulators (! really?), mortgage-servicers, foreclosure mill law firms, title companies, betrayer attorneys and paralegals, court clerks and personnel and judges, did people forget that human beings EVOLVE when compelled by survival to do so? We have evolved because the situation forced us to. This article, written by a former neuromuscular therapist, bodyworker and healing practitioner whose craft and practice was a casualty of this 10 year battle, is proof that people evolve and that Main Street is more resilient than some would have believed. Main Street is, by and large, calling for Ceasefire and Settlement. All these entities, if ye be human beings with still human hearts, "What are we doing to OUR children and grandchildren who will ask us if we helped make this better or worse post 2008 Global Financial Crisis??"
Ceasefire. Its time to take back our Republic. The first step is enforce our Republic's Constitution. Even a nudge in that direction will go a long way. This nudge and direction is nothing short of what Main Street families pray for -- and some are putting that prayer into action by articulating the steps needed to "stop this bleeding." Because no one on either side of this controversy are winning in pursuit of this business model of California non-judicial foreclosure as its been running, that is if we be a member of humanity living on planet earth. Others outside of that category ... who may be enemies of humanity, well that clearly would be an adverse agenda wouldn't it? Cui bono? Whoever benefits from the wrongs, wrong it remains. And ... what of wrongdoing? Of rightdoing? These may be a questions for each to ponder in each his and her own contemplation.
The truth is we are all injured when following a protocol disguised as a "business model" whose profits derive from unjust harm upon living human beings.
May 30, 2018:
I applaud our California legislators for RETAINING THE TEETH IN THE California Homeowner Bill of Rights when it came due for "sunset" at the end of 2017. As seen in my Verified Complaint filed just recently; it WILL BE the very "CalHBOR" statute by our California legislature that CLEARLY instructs the judicial branch to compel servicers to comply with TELEPHONE OR IN PERSON conference directly with borrower specifically to DISCUSS alternatives to foreclosure and the borrower's financial situation 30 DAYS' PRIOR TO filing a Notice of Default. Again, I realize we've got to get over this trauma and stay open to SEEING what we can work with to build the toe and finger holds that hold our ground.
CalHBOR (California Homeowners’ Bill of Rights) is found in the California Code of Civil Procedure §§ 2923.5,2923.7,2924.11and 2924.17. In addition
§ 2924.12dictates what happens before and after a “trustee’s deed upon sale (TDUS)” document has been recorded in the public records of the county where the property is located. The recordation of the TDUS document is a crucial demarcation line that determines the extent of damages borne by borrowers’ if a material violation of CalHBOR is evidenced and proven as having occurred at some point prior to the recordation of that TDUS.
Specifically and speaking just pursuant to CalHBOR 2924.12 provisions (additional causes of action for damages may have merit), the monetary damages award to homeowner increases to “treble” or three-times the loss of equity suffered as a result of a completed trustee sale and the soon-following recording of the TDUS document.
IMPORTANT NOTE on clickable document at left: Yamagishi's CalBHOR complaint diverts from the above template with its 4th cause of action for "Proof of Authority to Represent," and omitting the accounting disclosure demand pursuant to CalHBOR. We recommend NOT pleading Yamagishi's exact complaint but staying true to CalHBOR only as in Stan Burman's template above. Yamagishi court issued Preliminary Injunction but commented that the likelihood is complaint would NOT prevail on this 4th cause of action. Preliminary Injunction granted Aug. 21, 2018
To my California legislators: I had become so jaded by about 2013 and 2014 watching the loopholes in the National Mortgage Settlement and how the "Too Big To Fail" (gag) Banks just transferred servicing to 'non-bank servicers who boldly violated the rules and I was disheartened to be hearing how too many CA homeowners were somehow bushwhacked out of remaining in their trial period loan mods such that the servicer could say, "Well we tried and now we're not dual tracking them we just have to take the house, quickly before they have a chance to recover from the shock of the sheer force of the blow." And as scathing as that may sound I am in touch with MANY homeowners in the noosphere of connectedness, in particular in California where we have to essentially join ad hoc marathon research and collaboration efforts to keep our ships on safe course and away from sure disaster.
We do not consent -- but how does our withdrawal of consent translate to effective reasonable fair play and rule of law? We were shaking our heads and often our hearts sunk. We had to beware of more short-lived hopes -- we couldn't be beggars or victims at the whim of some new legislation that would only get our hopes up...
So when I saw the "sunset clause" written right into the 2012 statute, I felt like this was maybe another way to placate homeowners and then jerk the rug out from under us come 2018.. These unscrupulous injurious servicers had already bait and switched me and led me on too many times. My resolution to the controversy had to be permanent, FINAL Not dictated by changing trends in one statute or another -- the bedrock wasn't solid most everywhere I looked back in those days; so I gave HBOR not much more than a cursory glance and "oh well... sure." I HAVE A VERY RICH LIFE TO LIVE - not materially but its health and happiness that is wealth beyond price. I'm still hijacked, though my confinement has more windows and a bigger library .... For years, like so many of us, I needed to study deeper and wider and effectuate a remedy that would last - that would be based on a final adjudication on well-established principles and maxims of law that wouldn't blow over just because of a page turn on the calendar.
HOWEVER MOST RECENTLY around middle of May 2018, I had to leave no stone unturned -- and ran across some good writing on it as amended post January 1 2018: Wow, I discovered how major protections didn't "sunset" out of existence, and the statute remains most unchanged: quite elated honestly to learn that our California Homeowner Bill of Rights still mandates servicers
specifically to good aims of due diligence in SPEAKING BY VOICE to us homeowners who are REAL LIVING HUMAN BEINGS AFTER ALL and not merely an "account number!" These servicers are actually still REQUIRED BY LAW TO DISCUSS FORECLOSURE ALTERNATIVES IN EARNEST! What a concept. Now that I know I will help educate others: Servicers still must attach to the very Notice of Default a signed sworn statement that they complied with the entire statute as written, to make the NOD valid for recordation. The opposite is invalid, and INVALID = VOID.
I DO APPLAUD YOU CALIFORNIA LEGISLATORS, FOR SHOWING UP AND RETAINING THE STRONGHOLDS OF this important Statute! Without it right now I may have been on very thin ice come June 5th when a trustee sale is scheduled! But today May 30th, I am scheduled for a Monday June 4 hearing to plead for the ENFORCEMENT of the Injunctive Remedy spelled out so clearly in CalCivilCode 2924.12 specifically in reference to the mandates of homeowner rights in 2923.5.
A big piece of my faith in legislative process and its entrusted role hasprovisions (additional causes of action for damages may have merit), the monetary damages award to homeowner increases to “treble” or three-times the loss of equity suffered as a result of a completed trustee sale and the soon-following recording of the TDUS document. This demarcation line is critical, apparently, because the filing of the TDUS sets up a deplorable chain-reaction that somehow mysteriously relegates tenant-status to the homeowner, and invokes “unlawful detainer court / UD court” for a summons and almost always summary judgement with writ of eviction.