Ask the Expert: Foreclosure Defenses
Mailto:expert.witness@live.com Tel 213-880-6288Mar 19, 2010
Civil Code 2924
According to 2924.(a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge.
Where, by a mortgage of any estate in real property, or in any transfer in trust of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations.
Set forth in Section 2924f.
(b) In performing acts required by this article, the trustee shall incur no liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage. In performing the acts required by this article, a trustee shall not be subject to Title 1.6c (commencing with Section 1788) of Part 4.
(c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.
The first blush; the first view or appearance of the business; as, the holder of a bill of exchange, indorsed in blank, is prima facie its owner. Prima facie evidence of a fact, is in law sufficient to establish the fact, unless rebutted. For example, when a property is siezed under a power of sale with wrong or incorrect filing of instruments pima facie evidence of negligence arises on the part of those who have the charge of it.
m.soliman
expert.witness@live.com
Where, by a mortgage of any estate in real property, or in any transfer in trust of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations.
Set forth in Section 2924f.
(b) In performing acts required by this article, the trustee shall incur no liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage. In performing the acts required by this article, a trustee shall not be subject to Title 1.6c (commencing with Section 1788) of Part 4.
(c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.
The first blush; the first view or appearance of the business; as, the holder of a bill of exchange, indorsed in blank, is prima facie its owner. Prima facie evidence of a fact, is in law sufficient to establish the fact, unless rebutted. For example, when a property is siezed under a power of sale with wrong or incorrect filing of instruments pima facie evidence of negligence arises on the part of those who have the charge of it.
m.soliman
expert.witness@live.com
Labels: "Loan Modification" (Foreclosures);, "loan-modification, "Loans"
Ask the Expert:Foreclosureinfosearch: Foreclosure Victory For Nor Cal Area Homeowner!
Mar 11, 2010
QuietTitleAction:
It is a proceeding to establish an individual's right to ownership of real property against one or more adverse claimants. An action to quiet title is a lawsuit filed to establish ownership of real property (land and buildings affixed to land).
The plaintiff in a quiet title action seeks a court order that prevents the respondent from making any subsequent claim to the property. Quiet title actions are necessary because real estate may change hands often, and it is not always easy to determine who has title to the property.
A quiet title suit is also called a suit to remove a cloud. A cloud is any claim or potential claim to ownership of the property. The cloud can be a claim of full ownership of the property or a claim of partial ownership, such as a lien in an amount that does not exceed the value of the property.
A title to real property is clouded if the plaintiff, as the buyer or recipient of real estate, might have to defend her full ownership of the property in court against some party in the future. A landowner may bring a quiet title action regardless of whether the respondent is asserting a present right to gain possession of the premises.
For example, assume that the seller of the property agreed to sell but died before the sale was finalized. Assume further that the seller also gave the property to a nephew in a will. In such a situation, both the nephew and the buyer have valid grounds for filing a suit to quiet title because each has a valid claim to the property. The law on quiet title actions varies from state to state. Some states have quiet title statutes. Other states allow courts to fashion most of the laws regarding quiet title actions. Under the Common Law, a plaintiff must be in possession of the property to bring a quiet title action, but many state statutes do not require actual possession by the plaintiff. In other states possession is not relevant.
In some states only the person who holds legal title to the real estate may file a quiet title action, but in other states anyone with sufficient interest in the property may bring a quiet title action. Generally, a person who has sold the property does not have sufficient interest. When a landowner owns property subject to a mortgage, the landowner may bring a quiet title action in states where the mortgagor retains title to the property. If the mortgagee keeps the title until the mortgage is paid, the mortgagee, not the landowner, would have to bring the action.
The general rule in a quiet title action is that the plaintiff may succeed only on the strength of his own claim to the real estate, and not on the weakness of the respondent's claim. The plaintiff bears the burden of proving that he owns the title to the property. A plaintiff may have less than a fee simple, or less than full ownership, and maintain an action to quiet title. So long as the plaintiff's interest is valid and the respondent's interest is not, the plaintiff will succeed in removing the cloud (the respondent's claim) from the title to the property
You need an attorney and that is what we do best. Work with counsel to develop the winning arguments.
The plaintiff in a quiet title action seeks a court order that prevents the respondent from making any subsequent claim to the property. Quiet title actions are necessary because real estate may change hands often, and it is not always easy to determine who has title to the property.
A quiet title suit is also called a suit to remove a cloud. A cloud is any claim or potential claim to ownership of the property. The cloud can be a claim of full ownership of the property or a claim of partial ownership, such as a lien in an amount that does not exceed the value of the property.
A title to real property is clouded if the plaintiff, as the buyer or recipient of real estate, might have to defend her full ownership of the property in court against some party in the future. A landowner may bring a quiet title action regardless of whether the respondent is asserting a present right to gain possession of the premises.
For example, assume that the seller of the property agreed to sell but died before the sale was finalized. Assume further that the seller also gave the property to a nephew in a will. In such a situation, both the nephew and the buyer have valid grounds for filing a suit to quiet title because each has a valid claim to the property. The law on quiet title actions varies from state to state. Some states have quiet title statutes. Other states allow courts to fashion most of the laws regarding quiet title actions. Under the Common Law, a plaintiff must be in possession of the property to bring a quiet title action, but many state statutes do not require actual possession by the plaintiff. In other states possession is not relevant.
In some states only the person who holds legal title to the real estate may file a quiet title action, but in other states anyone with sufficient interest in the property may bring a quiet title action. Generally, a person who has sold the property does not have sufficient interest. When a landowner owns property subject to a mortgage, the landowner may bring a quiet title action in states where the mortgagor retains title to the property. If the mortgagee keeps the title until the mortgage is paid, the mortgagee, not the landowner, would have to bring the action.
The general rule in a quiet title action is that the plaintiff may succeed only on the strength of his own claim to the real estate, and not on the weakness of the respondent's claim. The plaintiff bears the burden of proving that he owns the title to the property. A plaintiff may have less than a fee simple, or less than full ownership, and maintain an action to quiet title. So long as the plaintiff's interest is valid and the respondent's interest is not, the plaintiff will succeed in removing the cloud (the respondent's claim) from the title to the property
You need an attorney and that is what we do best. Work with counsel to develop the winning arguments.
Labels: "foreclosures" CCP § 726(a), "mortgage meltdown" (foreclosures); WallStreet (Foreclosures) MSoliman (foreclosures), .com, Maher Soliman, QUIET TITLE ACTION; Maher Soliman
CLASS ACTION FOR LOAN MOD FRAUD MAY LACK STANDING
By Maher Soliman
Soliman asks the authors of the latest loan mod and inability to deliver class action suit the question , "So, why are your pursuing Loan Mod Fraud?"
The claims are NOT simple, the two filings say: “When a large financial institution promises to modify an eligible loan to prevent foreclosure, homeowners who live up to their end of the bargain expects that promise to be kept.”The issue at hand is "Tender”. Here is another wasted class action suit lacking substance for the correct and proper arguments.
Counsel, you have earned my monthly “WTF" award for failing to realize the lenders generous offers are just that. . A source of tender and mere proposition for an offer to assist. God Bless them.Now the offers are made, albeit under a Fed and State (CC {} 2923.56) mandate. Once again a sucker is born every day. Your original lender is broke and gone, the trustee of record replaced by a debt collector, one of the critical recording instruments makes NO logical sense and the transfer by Grant Deed upon sale stinks of something the pride of Chicago, Al Capone, would never participate in.
And you are pursuing Loan Mod Fraud?
With the issue of Modifications, I side with the lender. We know the matter will always come down to a financial capacity argument. And you are trying to qualify for avoiding the judicial right of a lender to a recovery by going to the "Loan Mod Squad" to asset you.Read 1122AB and that’s all I will say about that!
Look, a lender in an economic bail plan that has "parties of a lost interest sold long ago" with their backs against the wall Questions proposed to set the matter for early hearings and dismissal will be - - - "could the borrower offer recognized tender to either
a) Cure the foreclosure or
b) Offer an amount a court could determine to be sufficient consideration.
A lender that assists in a modification effort is not acting as a fiduciary and how many times has a judge told us this. Under the doctrine of "caveat emptor", the borrower could not recover from the lenders transfers and securities registration defects on the property that rendered the loan and obligation unaffordable.
A so too will the court speak to the fact known in Latin as "you-snooze- loose" or pay attention.
So the property is now unfit for ordinary purposes subject to your lack of capacity and market conditions and appraisal changes and NOT THE LENDERS FAULT!
The only exception was if the Lender actively concealed material information and you prove latent defects or target material misrepresentations amounting to fraud.Okay, hear the judge tell you, call a cop, see the DA and "get out" of your home as you lost possession.The caveat emptor rule applies to all other sale situations (i.e. homeowner to buyer) and I am using it for the clients advantage in a "lease to own" botched securitization. Many other jurisdictions have provisions similar to this.
Before statutory law, the debtor had no warranty of the quality of goods or in these case services. In many jurisdictions now, the law requires that goods or services must be of a condition of earnest and quality. However, this implied warranty can be difficult to enforce and may not apply to the exact extent of the law as for mortgage products. Hence, borrowers then and now are still advised to be cautious.
Its funny, when you consider that according to the definitions I researched - - -In addition to the quality of the merchandise, this phrase also applies to the return policy. In most jurisdictions, there is no legal requirement for the vendor to provide a refund or exchange. In many cases, the vendor will not provide a refund but will provide a credit.
So does a modification fall into to a legal category of judicial question as to tangible assets and defects to title? Tough question I will surrender to my Ivy League bearded scholars can help out with the correct response over the years to come.
For now the question of tender and capacity will govern these cases and the lender is sitting on prime USDA evidential material, and all thanks to you and the willingness to once again fall into their trap. It’s called the “Loan Mod Fraud" that you perpetrated against yourself.
M.Soliman
Expert. Witness to Counsel
expert.witness@live.com
References:
Homeowners « Livinglies's Weblog
Plaintiff: Rosicki, Rosicki & Associates, P.C., by Deborah M. Gallo, Esq. Defendant: Western New York Law Center by Denetra Williams, Esq. ...livinglies.wordpress.com/in-trouble-right-now-press-here/ - 8 hours ago - Cached - Similar
Public Notices | www.amityvillerecord.com | Amityville Record
Sweeney, Gallo, Reich & Bolz, LLP Attorney(s) for Plaintiff 95-25 Queens Blvd., Suite 626, ... Attorney (s) for Plaintiff (s): ROSICKI, ROSICKI & ASSOCIATES, P.C., ... ASSETBACKED PASS-THROUGH CERTIFICATES, Plaintiff against DEBORAH VERYZER, .... Dated October 14, 2009 William M. McInerney, Secretary Board of Fire ..www.amityvillerecord.com/common/legals/Public_Notices_010.html - Cached
USFN | Member Directory
Firm Name: Rosicki, Rosicki & Associates, P.C. ... Fax: (516) 741-4748. Email: crosicki@rosicki.com. Deborah M. Gallo, Esq. Phone: (585) 815-0288 ...www.usfn.org/source/members/DirectoryProfile.cfm?id=16196... - Cached
Debra Gallo & Associates Inc. | Boutique Marketing Agency | Design ...
is a boutique marketing agency and design firm focused on personalized service for individual accounts.
www.debragalloinc.com/ - Cached - Similar
Soliman asks the authors of the latest loan mod and inability to deliver class action suit the question , "So, why are your pursuing Loan Mod Fraud?"
The claims are NOT simple, the two filings say: “When a large financial institution promises to modify an eligible loan to prevent foreclosure, homeowners who live up to their end of the bargain expects that promise to be kept.”The issue at hand is "Tender”. Here is another wasted class action suit lacking substance for the correct and proper arguments.
Counsel, you have earned my monthly “WTF" award for failing to realize the lenders generous offers are just that. . A source of tender and mere proposition for an offer to assist. God Bless them.Now the offers are made, albeit under a Fed and State (CC {} 2923.56) mandate. Once again a sucker is born every day. Your original lender is broke and gone, the trustee of record replaced by a debt collector, one of the critical recording instruments makes NO logical sense and the transfer by Grant Deed upon sale stinks of something the pride of Chicago, Al Capone, would never participate in.
And you are pursuing Loan Mod Fraud?
With the issue of Modifications, I side with the lender. We know the matter will always come down to a financial capacity argument. And you are trying to qualify for avoiding the judicial right of a lender to a recovery by going to the "Loan Mod Squad" to asset you.Read 1122AB and that’s all I will say about that!
Look, a lender in an economic bail plan that has "parties of a lost interest sold long ago" with their backs against the wall Questions proposed to set the matter for early hearings and dismissal will be - - - "could the borrower offer recognized tender to either
a) Cure the foreclosure or
b) Offer an amount a court could determine to be sufficient consideration.
A lender that assists in a modification effort is not acting as a fiduciary and how many times has a judge told us this. Under the doctrine of "caveat emptor", the borrower could not recover from the lenders transfers and securities registration defects on the property that rendered the loan and obligation unaffordable.
A so too will the court speak to the fact known in Latin as "you-snooze- loose" or pay attention.
So the property is now unfit for ordinary purposes subject to your lack of capacity and market conditions and appraisal changes and NOT THE LENDERS FAULT!
The only exception was if the Lender actively concealed material information and you prove latent defects or target material misrepresentations amounting to fraud.Okay, hear the judge tell you, call a cop, see the DA and "get out" of your home as you lost possession.The caveat emptor rule applies to all other sale situations (i.e. homeowner to buyer) and I am using it for the clients advantage in a "lease to own" botched securitization. Many other jurisdictions have provisions similar to this.
Before statutory law, the debtor had no warranty of the quality of goods or in these case services. In many jurisdictions now, the law requires that goods or services must be of a condition of earnest and quality. However, this implied warranty can be difficult to enforce and may not apply to the exact extent of the law as for mortgage products. Hence, borrowers then and now are still advised to be cautious.
Its funny, when you consider that according to the definitions I researched - - -In addition to the quality of the merchandise, this phrase also applies to the return policy. In most jurisdictions, there is no legal requirement for the vendor to provide a refund or exchange. In many cases, the vendor will not provide a refund but will provide a credit.
So does a modification fall into to a legal category of judicial question as to tangible assets and defects to title? Tough question I will surrender to my Ivy League bearded scholars can help out with the correct response over the years to come.
For now the question of tender and capacity will govern these cases and the lender is sitting on prime USDA evidential material, and all thanks to you and the willingness to once again fall into their trap. It’s called the “Loan Mod Fraud" that you perpetrated against yourself.
M.Soliman
Expert. Witness to Counsel
expert.witness@live.com
References:
Homeowners « Livinglies's Weblog
Plaintiff: Rosicki, Rosicki & Associates, P.C., by Deborah M. Gallo, Esq. Defendant: Western New York Law Center by Denetra Williams, Esq. ...livinglies.wordpress.com/in-trouble-right-now-press-here/ - 8 hours ago - Cached - Similar
Public Notices | www.amityvillerecord.com | Amityville Record
Sweeney, Gallo, Reich & Bolz, LLP Attorney(s) for Plaintiff 95-25 Queens Blvd., Suite 626, ... Attorney (s) for Plaintiff (s): ROSICKI, ROSICKI & ASSOCIATES, P.C., ... ASSETBACKED PASS-THROUGH CERTIFICATES, Plaintiff against DEBORAH VERYZER, .... Dated October 14, 2009 William M. McInerney, Secretary Board of Fire ..www.amityvillerecord.com/common/legals/Public_Notices_010.html - Cached
USFN | Member Directory
Firm Name: Rosicki, Rosicki & Associates, P.C. ... Fax: (516) 741-4748. Email: crosicki@rosicki.com. Deborah M. Gallo, Esq. Phone: (585) 815-0288 ...www.usfn.org/source/members/DirectoryProfile.cfm?id=16196... - Cached
Debra Gallo & Associates Inc. | Boutique Marketing Agency | Design ...
is a boutique marketing agency and design firm focused on personalized service for individual accounts.
www.debragalloinc.com/ - Cached - Similar
Labels: "Ask"; the expert, class action; (mortgage); Wall Street, lawyers, loan modifications
Feb 23, 2010
FOR COMPANIES IN THE mortgage lending
business, rising short-term interest rates are a troubling occurrence. Since lenders borrow money at short-term rates, the higher those rates are, the higher their cost of capital.
Needless to say, stocks of real-estate-investment trusts that are primarily in the business of mortgage lending shuddered.
When the Federal Reserve made its surprise move last week to raise the discount rate by 25 basis points to 0.75%, it prompted many investors to wonder whether the Fed was signaling a new era of rising short-term interest rates. After all, this was the first short-term rate hike of any kind by the Fed in 14 months. (The Fed, however, did leave the more widely-watched fed funds rate unchanged.)
Needless to say, stocks of real-estate-investment trusts that are primarily in the business of mortgage lending shuddered.
When the Federal Reserve made its surprise move last week to raise the discount rate by 25 basis points to 0.75%, it prompted many investors to wonder whether the Fed was signaling a new era of rising short-term interest rates. After all, this was the first short-term rate hike of any kind by the Fed in 14 months. (The Fed, however, did leave the more widely-watched fed funds rate unchanged.)
Labels: "foreclosurewebpage";Foreclosure";"infosearch"
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