FORECLOSURE AND FORCIBLE DETAINER ISSUES Brewer v. Bank of America, Fla.

17th Circuit 11004756 All these courts are privately owned trading companies. The united States district courts are all owned...those are your article one courts. They're all owned by the united States attorney's executive offices out of Washington DC which is a privately owned corporation. They're article one legislative tribunals. They're not courts. They have a DUNS number, they have a pit code, sic code, NAICS number (North America Identification Security Classification). You have to have that number in order to trade internationally. All these courts are registered with the DOD, Department of Defense. They have a DUNS number which is Data Universal Numbering System. That's a Dun & Bradstreet. You have to be registered with CCR, Contractors Central registration under the DOD. They have another department called the DLIS, Defense Logistics Information Service. The DLIS issues a case code that's spelled CAGE, Commercial And Government Entity which corresponds to the bank account. They have a bank account. They take everything that you file into the court and they securitize it. That is why they (the clerks of the court) want to make darn sure you are giving them the signed original document with that wet ink signature on it, so they can monetize it. And these banks [ ] and all these banks are registered, they have a depository agreement, a security agreement and an escrow agreement. And most of them are registered with the Federal Reserve bank of New York city. And they use what they call...North Carolina uses a circular 16, they use as their depository agreement. They take public funds and they deposit them under a...its called a depository resolution agreement. They have a security agreement which the clerk of the courts signs with the bank. They have an escrow agent that acts as the go-between the federal reserve bank that they have the account with...so all these courts are taking your money and funneling it into an escrow account. Most
1

of them are in New York. There's 60 trillion dollars of your money in the federal reserve bank of New York city. And they've told the courts not to rule against the banks on these foreclosure cases. They're all in bed together. What these lawyers are doing is acting as private debt collectors. Under the Debt Collectors Practices Act, its called the FDCPA and its title 15 section 1692. In order to be...when you're a public debt collector you have to be registered with the government, and you have to have a license and you have to have a bond in order to collect debt. Well these attorneys are what you call private debt collectors and they don't have a...the attorneys are exempted by the BAR association on that provision, but their firm is not. The firm they work for has to be registered and they have to have a license and a bond and they don't. All these court cases that you're involved in, these attorneys are acting as private debt collectors. What they're doing is collecting money from you as private debt collectors and they're not licensed or bonded to do that. And they do this through what they call Warrant of Attorney. Black's law dictionary of 1856 defines what a warrant of an attorney is. Its like a writ of execution. Its like a put or a call. When you do a marching call that means they use it to buy equity securities. Cause they securitize everything that you file into court which means they turn it into a negotiable instrument. Then they sell it as a commercial item. They call them distressed debt, these debt collectors, that what Unifund is, they come in and buy up all these court judgments as distressed debt. Then they put them into hedge funds and they sell them to investors globally. And of course when you get into selling debt instruments you're creating a security risk. Anytime you get into risk management you have to have re-insurance. That's where Luer Hermes comes in. They're an underwriting company. And they're a sub division of Alliance SE out of Munich Germany. They're the US agency that acts as a bond holder for Alliance SE is PIMCO bonds who takes all your securities, they pool them, and that's what they do on
2

these mortgage loans, go to their web site and it'll tell you that's what they do. All of your mortgage loans are securities. The notes have a maturity of more than 9 months so they're a security by definition. If you go to title 15 section (7?)(7?) A b 1 it tells you that any note with a maturity of more than 9 months is a security by legal definition and an investment contract. (REMIC REAL ESTATE MORTGAGE INVESTMENT CONTRACT) So when you sign and indorse these notes as the drawer and the maker you're in an investment contract. You gave them a security. They tale the security and they securitize it. As soon as they securitize it and indorse it for payment, they've securitized it. The loan is no longer secured. They've collapsed the trust and there's no corpus in the trust under probate law. And what they do is sell it as a mortgage backed security. Well PIMCO takes the mortgage backed security pools over and sells them as bonds. So bonds actually come from pooled securities. And they sell these on the TBA market globally. And all these courts are involved in that. The only time you can stop them is when you make them liable and that's what I've been doing. I do a letter rogatory which is a letter of instruction under the Hague convention. Its under title 18 section 1(7?)81 and Federal Rules of Civil Procedure I believe its 28 B. You tell them what you want them to do. You make a contract with them. When you go into these courts you contract with them. They run the court room. When I go into court I make them contract with me and then I control the contract. I tell them what to do because in California its in article 6 section 1 all these courts are courts of record and the courts of record were made for the sovereign, for we the people. You'll notice when you go into court on a criminal case the caption they have, in California, the people of the state of California versus whoever the defendant is. They do that in a criminal case. Well its the people prosecuting the defendant. The people are the sovereignty. We the people are the people. And what they're doing is using our courts for commercial enterprise. But if you contract with them on the private side then you can run the court and tell them what to do. And that's what I do. And I've been successful. I've
3

won mortgage cases and cases involving car loans. But you have to know how to do it and you have to understand commercial law. You have to understand what a conditional acceptance is under [UCC] 3-502. Once you challenge their authority to make a presentment, and that's what these attorneys are doing. These attorneys are coming into court and they're making a presentment on behalf of somebody else. You can't do that. Nobody challenges them. But I do. I make them prove that they have the authority to make a presentment on behalf of somebody else and the authority to do it. They have to show you the authority. They have to present the document. Another thing that you're not making them do, when you make a presentment on a mortgage foreclosure case they have to present the note in order to demand payment. They have to present the instrument, read UCC 3-502. If they don't present the instrument they're not making a presentment. They're not charging you. To make you liable they have to charge you. If they're not presenting the instrument they're not making a valid presentment and you don't have to accept it. So I don't accept their presentment. Caller: Does that hold true in criminal too? Sure it does. You know what they do on these criminal cases? They rubber stamp them. I've got a case right now in federal district court. I've shut em down. What they do...all these courts have an account at the IMF, the International Monetary Fund. Go try to get a district court judge's Oath of Office. They have an oath of office but it isn't...its filed with the International Monetary Fund. They're an employee of the International Monetary Fund under Interpol. All these US attorneys work for Interpol. That's not my opinion I can prove it. I got a copy of the head of the united states attorney's office he has got an oath filed with Interpol. That makes him an unregistered foreign agent. They've expatriated from the united states. So you're dealing with unregistered foreign agents under title 22 section 686 and I think its 286. And its says that all foreign agents have to be registered. That's why they don't have an oath of
4

office. They have one but they don't produce it because its with the International Monetary Fund. That's who they're working for. Caller: So that's who you FOIA right? That's who you FOIA. And you have drawing rights. Its called special...SDR's. The reason you have special drawing rights is because you've deposited your funds.. when they do a court judgment against you its called a distressed debt instrument. They deposit the SDR's, they deposit these court judgments with the International Monetary Fund. Well, if it involves you, you have a drawing right and you have a right to the proceeds. Go read UCC 3-305. You have a defense in recoupement and under 3-306 you have a possessionary and property right in the instrument and/or its proceeds. Because when they take these instruments.. because they're doing it under title 16 which is...what they're doing is they're monopolizing which is a violation of the anti trust law. They're monopolizing commerce. Interfering with the course of commerce by bringing private claims into a court room. And brings them under title 16 which is unfair trade practices and all these attorneys are doing this. Not some, all of them. My brother is a judge on the superior court bench and he says I'm absolutely correct. He doesn't like to talk about it because what they're doing is wrong. They're fleecing the people because the people don't know what's going on. Its all commercial. Stereotyping court cases by calling them civil or criminal but its all civil. I looked at the indictment which was signed by the US attorney. You know what an indictment is, its a true bill. A true bill is a negotiable instrument. DEMAND UPON the US attorney where's your 1099 OID? I made him read the indictment into the court record and he wouldn't do it. That's because there's no claim on the private side. If you read criminal rule 6 and (7?) they have to go before the grand jury for a person that's indicted, it has to go before a grand jury and get testimony. And you have a right to empanel the jury under criminal rule 6 and (7?).
5

If you empanel the jury you have a right to cross examine the jury as to their right to qualify as a juror. That means you're giving testimony. Well nobody ever does that. That's because these US attorneys rubber stamp these indictments. They don't go before a grand jury... None of these indictments are signed by a grand juror. And if they got one they've rubber stamped it. Its either rubber stamped or signed by the US attorney which means the US attorney has a private claim. Then if you've got a claim against me I want you to produce the 1099 OID showing me as the recipient of the funds if I'm the one that's being indicted. And they wont do it. They wont produce the OID so I do an OID on them. I show them as the recipient of the funds. Now you've got a tax issue. They haven't paid the tax. They're getting funds and depositing them in the federal reserve bank of new york and they're not reporting the income. So now they're in possession of contraband. So now you got a tax issue going on in the court room. And that's what all these criminal charges are, are tax issues. And they're doing it on these mortgage loans. 424 B5 PROSPECTUS General Rules and Regulations promulgated under the Securities Act of 1933 Rule 424 -- Filing of Prospectuses, Number of Copies Except as provided in paragraph (f) of this section, five copies of every form of prospectus sent or given to any person prior to the effective date of the registration statement which varies from the form or forms of prospectus included in the registration statement as filed pursuant to Rule 402(a) shall be filed as a part of the registration statement not later than the date such form of prospectus is first sent or given to any person: Provided, however, That only a form of prospectus that contains substantive changes from or additions to a prospectus previously filed with the Commission as part of a registration statement need be filed pursuant to this paragraph (a).
a. 6

Ten copies of each form of prospectus purporting to comply with section 10 of the Act, except for documents constituting a prospectus pursuant to Rule 428(a) or free writing prospectuses pursuant to Rule 164 and Rule 433, shall be filed with the Commission in the form in which it is used after the effectiveness of the registration statement and identified as required by paragraph (e) of this section; provided, however, that only a form of prospectus that contains substantive changes from or additions to a previously filed prospectus is required to be filed; Provided, further, that this paragraph (b) shall not apply in respect of a form of prospectus contained in a registration statement and relating solely to securities offered at competitive bidding, which prospectus is intended for use prior to the opening of bids. Ten copies of the form of prospectus shall be filed or transmitted for filing as follows:
b.

A form of prospectus that discloses information previously omitted from the prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Securities Act shall be filed with the commission no later than the second business day following the earlier of the date of determination of the offering price or the date it is first used after effectiveness in connection with a public offering or sales, or transmitted by a means reasonably calculated to result in filing with the Commission by that date.
1.

A form of prospectus that is used in connection with a primary offering of securities pursuant to Rule 415(a)(1)(x) or a primary offering of securities registered for issuance on a delayed basis pursuant to Rule 415(a) (1)(vii) or (viii) and that, in the case of Rule 415(a)(1)(viii) discloses the public offering price, description of securities or similar matters, and in the case of Rule 415(a)(1)(vii) and (x) discloses information previously omitted from the prospectus filed as part of an effective registration statement in reliance on Rule 430B, shall be filed with the Commission no later than the second business day following the earlier of the date of the determination of the offering price or the date it is first used after effectiveness in connection with a public offering or sales, or transmitted by a means reasonably calculated to result in filing with the Commission by that date.
2.

A form of prospectus that reflects facts or events other than those covered in paragraphs (b) (1), (2) and (6) of this section that constitute a substantive change from or addition to the information set forth in the last form of prospectus filed with the Commission under this section or as part of a registration statement under the Securities Act shall
3. 7

be filed with the Commission no later than the fifth business day after the date it is first used after effectiveness in connection with a public offering or sales, or transmitted by a means reasonably calculated to result in filing with the Commission by that date. A form of prospectus that discloses information, facts or events covered in both paragraphs (b) (1) and (3) shall be filed with the Commission no later than the second business day following the earlier of the date of the determination of the offering price or the date it is first used after effectiveness in connection with a public offering or sales, or transmitted by a means reasonably calculated to result in filing with the Commission by that date.
4.

A form of prospectus that discloses information, facts or events covered in both paragraphs (b) (2) and (3) shall be filed with the Commission no later than the second business day following the earlier of the date of the determination of the offering price or the date it is first used after effectiveness in connection with a public offering or sales, or transmitted by a means reasonably calculated to result in filing with the Commission by that date.
5.

A form of prospectus used in connection with an offering of securities under Canada's National Policy Statement No. 45 pursuant to rule 415 under the Securities Act that is not made in the United States shall be filed with the Commission no later than the date it is first used in Canada, or transmitted by a means reasonably calculated to result in filing with the Commission by that date.
6.

A form of prospectus that identifies selling security holders and the amounts to be sold by them that was previously omitted from the registration statement and the prospectus in reliance upon Rule 430B (? 230.430B) shall be filed with the Commission no later than the second business day following the earlier of the date of sale or the date of first use or transmitted by a means reasonably calculated to result in filing with the Commission by that date.
7.

A form of prospectus otherwise required to be filed pursuant to paragraph (b) of this section that is not filed within the time frames specified in paragraph (b) of this section must be filed pursuant to this paragraph as soon as practicable after the discovery of such failure to file.
8. 8

Note to paragraph (b)(8) of Rule 424 A form of prospectus required to be filed pursuant to another paragraph of Rule 424(b) that is filed under Rule 424(b)(8) shall nonetheless be ? required to be filed?under such other paragraph. Instruction 1: Notwithstanding Rule 424 (b)(2) and (b)(5) above, a form of prospectus or prospectus supplement relating to an offering of mortgage-related securities on a delayed basis under Rule 415(a)(1) (vii) or asset-backed securities on a delayed basis under Rule 415(a)(1) (x) that is required to be filed pursuant to paragraph (b) of this section shall be filed with the Commission no later than the second business day following the date it is first used after effectiveness in connection with a public offering or sales, or transmitted by a means reasonably calculated to result in filing with the Commission by that date. Instruction 2: Notwithstanding paragraphs (b)(1), (b)(2), (b)(4) and (b)(5) of this section, a form of prospectus sent or given in reliance on Rule 434(c) with respect to securities registered on Form S-3 or Form F3, other than an abbreviated term sheet filed pursuant to paragraph (b)(7) of this section, shall be filed with the Commission on or prior to the date on which a confirmation is sent or given. If a form of prospectus, other than one filed pursuant to paragraph (b)(1) or (b)(4) of this Rule, consists of a prospectus supplement attached to a form of prospectus that
c. 1. 2.

previously has been filed or

was not required to be filed pursuant to paragraph (b) because it did no contain substantive changes from a prospectus that previously was filed, only the prospectus supplement need be filed under paragraph (b) of this rule, provided that the first page of each prospectus supplement includes a cross reference to the date(s) of the related prospectus and any prospectus supplements thereto that together constitute the prospectus required to be delivered by Section 5(b) of the Securities Act with respect to the securities currently being offered or sold. The cross reference may be set forth in longhand, provided it is legible. Note: Any prospectus supplement being filed separately that is smaller than a prospectus page should be attached to an 8-1/2" x 11" sheet of paper.
9

Every prospectus consisting of a radio or television broadcast shall be reduced to writing. Five copies of every such prospectus shall be filed with the Commission in accordance with the requirements of this section.
d.

Each copy of a form of prospectus filed under this rule shall contain in the upper right corner of the cover page the paragraph of this rule, including the subparagraph if applicable, under which the filing is made, and the file number of the registration statement to which the prospectus relates. The information required by this paragraph may be set forth in longhand, provided it is legible.
e.

This rule shall not apply with respect to prospectuses of an investment company registered under the Investment Company Act of 1940 or a business development company.
f.

A form of prospectus filed pursuant to this section that operates to reflect the payment of filing fees for an offering or offerings pursuant to Rule 456(b) must include on its cover page the calculation of registration fee table reflecting the payment of such filing fees for the securities that are the subject of the payment.
g.

An employee of Countrywide came into court and testified that none of these notes are being transferred to the REMICS which is a real estate investment trust. All of these B5 prospectuses... go on the internet and type in 424 B5. Its called a SEC rule. Its a registration rule. All securities have to be registered. And the reason it has to be registered is to get the tax exemption. If they're not registered with the Securities Exchange Commission they're taxable. That's why they have to be registered. When they register them they're supposed to transfer them, transfer the notes, to the REMIC. But they're not doing that. In order to get the tax exclusion they have to be deposited or transferred to the REMIC. So they're not depositing any of these notes in the REMIC. So they're in possession of taxable income that they haven't
1

paid the tax on. Internal Revenue laws calls that contraband. And its a (7?)201 of title 26 violation willful failure to file with the intent to evade the tax. They haven't filed the tax return. Ask them if they filed the tax return if you want to see how fast they get rid of your case. They're in possession of contraband cause they're holding funds that they haven't paid the tax on. And if you read publication 950 you have a three million five hundred thousand dollar Unified Tax Credit on the estate side and a one million dollar Unified Tax Credit on the gift side. You are the donor and the grantor settlor. Well you own all these funds that they're putting into these REMICS. If you read title 26 section 851, 852, 861 and 862 it says that in order to get tax exemption they have to pay out 90% of the taxable income as interest in dividends to the investors. They're setting up these bogus trusts to avoid paying the tax on the in-sourcing and outsourcing tax. Because if you use a Real Estate Investment Trust they don't pay any taxes on the in-sourcing and out-sourcing side of the REMIC because they pay out the interest and dividends to the investors. Well if you file a claim as an investor then they have to pay that out to you, the interest and dividends. And if you read 16 CFR 433.2 they took it subject to your defenses and claims. And when they do that, that means you have a right to a counterclaim. And if your counterclaim arises from the same transaction occurrence as their claim then you have a mandatory counterclaim under rule 13. If you don't file the counterclaim you waive it. You have a mandatory counterclaim in recoupement under 3-305 and a possessionary right and a property right in the proceeds and the instrument on the loan. Go read 9-403 and 9-404. That statement has to be on all credit applications because you're doing a purchase home loan to purchase the home. And that has to be...even if its not in the credit application its there if you read 9-404 subsection d. It tells you its there whether its in there or not. Its there by operation of law. That's why they're not...that's why its called the holder in due course rule. They're not a holder in due course cause they took it subject to your defenses and claims at closing. And you never filed a claim so they
11

take it and sell it as a mortgage backed security. And then they take the proceeds and put it in their bank account. And you get nothing. What you're dealing with is securities. You're not dealing with negotiable instruments. If you look at your note, all notes, all mortgage loans, all notes on mortgage loans have a maturity of more than 9 months. Read title 15 section (7?)8 c a 10 if a note has a maturity of more than 9 months its a security by legal definition. By statutory definition. That's a maxim of statutory construction. If its included in the definition of a note its excluded from the definition of a security. If its included in the definition of a security its excluded from the definition of a note. Well if its not a note its not a negotiable instrument. If its not a negotiable instrument how can there be a loan? notice that the bank never signs any of the loan documents. That's because there never was a loan. Because yo u have to have a contract between the borrower and the bank in order to have a loan. The bank never signed the deed of trust and they never signed the note. They never sign any of the loan documents. The only person who signs any of the documents is you and a notary to verify your signature. You have to have 2 parties to a contract. They did what they call...Neil Garfield has this on his website, they do what they call a pay forward. The investors put up capital into a trust fund. And they did this before they ever had any mortgage loans. Before you ever signed any loan documents they put up capital. And what the servicing company did they borrowed the capital to buy your loan from the investors. And you are not a party to that contract. That contract is called a pooling and servicing agreement. So the real borrower is the servicing company not the borrower. Not the person that borrowed the money on the deed of trust. So they did an unauthorized loan modification at closing. They made you an undisclosed third party to their pooling and servicing agreement and you can prove that if you get the CUSIP number you can find out
1

which trusts fund has your note. Which REMIC has your note in it.

And if you have a court case you can go to the state treasurer's office and get the CUSIP number. They have the CUSIP number on all these foreclosure cases. The CUSIP number is the Committee on Uniform Securities Processes. Any time you have a CUSIP you have a security. Any time you have a security its been sold on the Securities Exchange Commission website as an investment contract. Some people have contacted their state treasurers who sent them back to the county who says they have nothing to do with those CUSIP numbers. They do have something to do with it because they're selling...in California they're using circular (7?). produce [the number] under the Patriot Act and that's what Mitchell Stein is doing. He's suing Bank of America under the Patriot Act, cause they're under the DOD under the emergency bank act the war powers act of June 5th 1933. The Patriot Act was passed under the War Powers Act. That's title 31 section 5311. Its called the Bank Secrecy Act. And they have to file CMIR's which are Currency Money Reports showing where the source of the funds came from. And the regulations that govern the Bank Secrecy Act are 31 CFR 103.11 of the Code of Federal Regulations. You can make them produce the accounting. This thing is going to jury trial. Mitchell Stein has 1500 plaintiffs. Its a class action lawsuit. The judge has ordered them to produce the currency reports. Its gonna show that the funds came from you if they produce them.
1

And they have to produce them because under the Patriot Act they have to show where the funds are coming from otherwise they can be called..they could be coming from the Taliban under the Trading With The Enemy Act. Remember HJR 192 as passed under the Trading With the Enemy Act. Well they might be getting contraband from the enemy which can be confiscated. So they have to show that. And its the same thing with your county. You need to go into your county and tell them you want a copy of the depository resolution agreement under circular (7?). They're doing electronic transfers under circular (7?) which is a depository agreement. Go ask the clerk of the court. They know what's going on. The clerk of the court is depositing money into the federal reserve bank. You could file a case in court and make the clerk produce the documents. They have an investment. Its called PMI, Private Money Investment account. And you can make them produce the accounting on that under the Patriot Act. And you can do a FOIA request, Freedom Of Information Act. But you have to know what your rights and remedies are. Otherwise you don't have any. Its all commercial. You think you're involved in a criminal case. Its not criminal its civil. Title 18 section 3231 only district courts of the united states have criminal jurisdiction [district is spelled with a small d] Per Senator Wayne Stump. The common law court for the national seat of government, its the district court of the united states for the district of Columbia.
1

In 1863 it was called the supreme court of the united states to the district of Columbia and it was spelled with a small s just like in article three section one. Prior to that it was called the circuit court of the united states for the district of Columbia. Roger Tawny used to ride the circuit as a circuit judge. go into the Blanchford and McArthur reports it reports all these common law cases. And this is prior to 1933. So the article three court at the national seat of government under article 8 section one clause 17 is, today its called the united states district court for the district of Columbia. And there's no yellow fringed flag in any of the court room. That's an article three section one court. the superior court of Washington is the parent company for all these superior courts in the states. That's what Chris Summers says. I haven't documented it. The constitution says the superior courts are courts of record. The only court that has jurisdiction to foreclose on land is the county court under the organic constitution. If you go into your state constitution. Here in California the original constitution was 1849 then they amended it in 1850. Every state has a Land Commission and they can determine land boundaries which is your meets and boundaries. There's a difference between land and property. Land is described in meets and bounds which is distance and direction. The deed of trust has your meets and bounds land description, not a property description.

15

The property description is described by township, range, section, lot number which is what they do in a land patent. Originally they had 640 increments. And they issued a land patent for the acreage and they designate them by lot and section number and township and range number. The united States doesn't own anything. They're all debtors in possession under a chapter 11 reorganization acting as trustees to the bankrupt estate. They're all debtors in possession. They're all in a declared state of bankruptcy. So how can they ever bring a claim against somebody in a court of law when they're all debtors? How can a debtor bring a claim? They can't. They're all bankrupt. supreme court decisions that says if you're bankrupt and insolvent. .if you're a company, a corporation, an association and you're insolvent or bankrupt you're civilly dead. if you're civilly dead you're naturally and legally dead. Well if you go in there and read these taxing statutes, your chapter 11 and 12, they talk about a decedent, a dead person. Read the cestui que VIE Act of 1666, if you were missing at sea for more than (7?) years you were declared...there was a presumption of death. 1666 CHAPTER 11 18_and_19_Cha_2 An Act for Redresse of Inconveniencies by want of Proofe of the Deceases of Persons beyond the Seas or absenting themselves, upon whose Lives Estates doe depend.
1

X1Recital that Cestui que vies have gone beyond Sea, and that Reversioners cannot find out whether they are alive or dead. Whereas diverse Lords of Mannours and others have granted Estates by Lease for one or more life or lives, or else for yeares determinable upon one or more life or lives And it hath often happened that such person or persons for whose life or lives such Estates have beene granted have gone beyond the Seas or soe absented themselves for many yeares that the Lessors and Reversioners cannot finde out whether such person or persons be alive or dead by reason whereof such Lessors and Reversioners have beene held out of possession of their Tenements for many yeares after all the lives upon which such Estates depend are dead in regard that the Lessors and Reversioners when they have brought Actions for the recovery of their Tenements have beene putt upon it to prove the death of their Tennants when it is almost impossible for them to discover the same, For remedy of which mischeife soe frequently happening to such Lessors or Reversioners. Annotations: Modifications etc. (not altering text) C1Short title The Cestui que Vie Act 1666 given by Statute Law Revision Act 1948 (c. 62), Sch. 2 C2Preamble omitted in part under authority of Statute Law Revision Act 1948 (c. 62), Sch. 1 C3Certain words of enactment repealed by Statute Law Revision Act 1888 (c. 3) and remainder omitted under authority of Statute Law Revision Act 1948 (c. 62), s. 3 Editorial Information X1Abbreviations or contractions in the original form of this Act have been expanded into modern lettering in the text set out above and below.I. Cestui que vie remaining beyond Sea for Seven Years together and no Proof of their Lives, Judge in Action to direct a Verdict as though Cestui que vie were dead.

If such person or persons for whose life or lives such Estates have beene or shall be granted as aforesaid shall remaine beyond the Seas or elsewhere absent themselves in this Realme by the space of seaven yeares together and noe sufficient and evident proofe be made of the lives of such person or persons respectively in any Action commenced for recovery of such Tenements by the Lessors or Reversioners in every such case the person or persons upon whose life or lives such Estate depended shall be accounted as naturally dead, And in every Action brought for the recovery of the said Tenements by the Lessors or Reversioners their Heires or Assignes, the Judges before whom such Action shall be brought shall direct the Jury to give their Verdict as if the person soe remaining beyond the Seas or otherwise absenting himselfe were dead. IV.If the supposed dead Man prove to be alive, then the Title is revested. Action for mean Profits with Interest. IV. [ X2 Provided alwayes That if any person or [ X3 person or] persons shall be evicted out of any Lands or Tenements by vertue of this Act, and afterwards if such person or persons upon whose life or lives such Estate or Estates depend shall returne againe from beyond the Seas, or shall on proofe in any Action to be brought for recovery of the same [ X3 to] be made appeare to be liveing; or to have beene liveing at the time of the Eviction That then and from thenceforth the Tennant or Lessee who was outed of the same his or their Executors Administrators or Assignes shall or may reenter repossesse have hold and enjoy the said Lands or Tenements in his or their former Estate for and dureing the Life or Lives or soe long terme as the said person or persons upon whose Life or Lives the said Estate or Estates depend shall be liveing, and alsoe shall upon Action or Actions to be brought by him or them against the Lessors Reversioners or Tennants in possession or other persons respectively which since the time of the said Eviction received the Proffitts of the said Lands or Tenements recover for damages the full Proffitts of the said Lands or Tenements respectively with lawfull Interest for and from the time that he or they were outed of the said Lands or Tenements, and kepte or held out of the same by
1

the said Lessors Reversioners Tennants or other persons who after the said Eviction received the Proffitts of the said Lands or Tenements or any of them respectively as well in the case when the said person or persons upon whose Life or Lives such Estate or Estates did depend are or shall be dead at the time of bringing of the said Action or Actions as if the said person or persons where then liveing.] So if you have an estate that exists and there's no beneficiaries or heirs to that estate then the presumption is there is no heirs or beneficiaries because its intestate. So they do a presumption of death under title 5 section 5565. If you cannot prove the person is dead but evidence of death is needed, we will presume he or she died at a certain time if you give us the following evidence: (a) A certified copy of, or extract from, an official report or finding by an agency or department of the United States that a missing person is presumed to be dead as set out in Federal law (5 U.S.C. 5565 ). Unless we have other evidence showing an actual date of death, we will use the date he or she was reported missing as the date of death. (b) Signed statements by those in a position to know and other records which show that the person has been absent from his or her residence and has not been heard from for at least 7 years. If the presumption of death is not rebutted pursuant to 404.722, we will use as the person's date of death either the date he or she left home, the date ending the 7 year period, or some other date depending upon what the evidence shows is the most likely date of death. (c) If you are applying for benefits as the insured person's grandchild or stepgrandchild but the evidence does not identify a parent, we will presume the parent died in the first month in which the insured person became entitled to benefits.

I think its 20 CFR 404.722 - REBUTTAL OF A PRESUMPTION OF DEATH a presumption of death issues because there's no beneficiaries or heirs to the estate.
1

A presumption of death made based on 404.721(b) can be rebutted by evidence that establishes that the person is still alive or explains the individual's absence in a manner consistent with continued life rather than death. Code of Federal Regulations Example 1: Evidence in a claim for surviving child's benefits showed that the worker had wages posted to his earnings record in the year following the disappearance. It was established that the wages belonged to the worker and were for work done after his disappearance. In this situation, the presumption of death is rebutted by evidence (wages belonging to the worker) that the person is still alive after the disappearance. Code of Federal Regulations Example 2: Evidence shows that the worker left the family home shortly after a woman, whom he had been seeing, also disappeared, and that the worker phoned his wife several days after the disappearance to state he intended to begin a new life in California. In this situation the presumption of death is rebutted because the evidence explains the worker's absence in a manner consistent with continued life. By identifying yourself as the executor. You gotta have the tax laws along with trust law and probate law. You have a legal estate in which there's no declared beneficiary or heir to the state and you're coming into court under the all capital letter name which is a legal estate. That's what that all capital letter name...that's not a strawman, that's a legal estate. Identify yourself as the beneficiary and executor to the legal estate of the decedent. use the word decedent, from the dead man statutes. They passed the dead man's statutes and the courts have adopted that under rule 601of the federal rules of evidence, competency to testify. When attorneys come into court I tell the judge I don't want this person testifying. He doesn't have personal knowledge under rule 602 and he's incompetent to testify. Who's the dead person he's testifying on behalf
2

of? The corporation, Per title 26 section 303. Corporations are decedents because they're individuals and 7701 persons, corporations, companies, associations and trusts are all decedents. Go to the secretary of state's web site and look under definitions it will tell you that an individual is a decedent. All these corporations are entities, individuals or artificial persons and they're all decedents. When these attorneys come into court and start testifying, they're testifying on behalf of the decedent. And unless you object to it under rule 601 they get away with it and they allow their testimony as evidence. I've actually done this and stopped anything from getting into the court record. That's why the court doesn't have subject matter jurisdiction. Because the real parties in interest.. if you study rule 17 A which is standing to come into court and rule 19 A which is joinder. Rule 389 of California code of civil procedure it talks about rule 19 A. If you join the real

parties in interest the court cannot rule on the case because the real parties in interest aren't before the court which are your investors under the pooling and servicing agreement. This is ratification of commencement.
Attorneys are substituting themselves for the investors because you're not objecting. This is why you gotta challenge subject matter jurisdiction. 12 b 1 is subject matter jurisdiction. 12 b 2 is in personam jurisdiction. And 12 b 6 is failure to state a claim upon which the court can grant relief. How many times did you file paperwork into the court and the judge would say I'm dismissing your paperwork because it failed to state a claim upon which the court can grant relief. You haven't
2

presented a claim or defense under 3-306 and 3-305. This is a must on mortgage foreclosures. And the courts don't have jurisdiction. These are not land courts. Only a land court has jurisdiction to hear...that's called the local venue. You want to bring up venue. These courts don't have venue to issue foreclosure on land. Only the land court has the jurisdiction to do that. I have a 1907 decision that came out of California, Robinson. She went in and got an abstract of title from a surveyor, a meets and bounds land description. Not a property description. Filed it with the county recorder and did a quiet title action in court and they gave her title to the property. These people don't own anything. They're a bunch of pirates. And you're letting them steal all your land. When they go to a trustee sale do they ever put up any money? Did you know you can't sell a property on an unlawful detainer unless they put up a cashier's check or money? Where's the money they put up to purchase the land? So they're not a qualified purchaser for value are they? You can't purchase anything unless you're a qualified purchaser for value under the Uniform Commercial Code. Cause you didn't put up any money. And there is no money. And there is no money. So how did they do a loan...read section 8 of the National Currency Act of June 3rd 1864. And its codified in title 12 section 24 paragraph 7.
2

It says they can only loan money. It doesn't talk about credit. Where did they get the credit from? If they want to argue credit I'll say okay what was the source of the credit? Where is the source of the credit under the Patriot Act? You're claiming you loaned me credit? Show me the credit application. Everybody makes them produce the note. Forget the note. Produce the credit application. They monetize the credit application. That's where your credit came from. the DTC website. Produce the pooling and servicing agreement which is filed with the DTC. The DTC owns both sides of the account. They appoint an indentured trustee and the indentured trustee does the payments which are your payments you're making on the account which go to the beneficiaries because you didn't claim it. Its abandoned property. (irs form 1099 A)
2

claim all of these funds from this mortgage loans. I can show you the B5 prospectus.. I did a letter rogatory, went into the SEC website, pulled a B5 prospectus with a pooling and servicing agreement, incorporated the pooling and servicing agreement which showed that they sold all right, title and interest in the receivable. They not only monetize your note or [rather your] security they monetize your receivables and your payables which are accounts. Read title 12 section 1813 L 1. Read FASB (federal accounting standards board) regulation number 95 cash flows. It says when a loan is made and the note is deposited in a demand deposit account it becomes a payment to the depositor and a receipt to the bank and a receipt to the depositor and a payment to the bank. So you have 2 receipts and 2 payments. Ask them where your damn receipt is on the payables that they deposited to write the check to the seller to pay for the loan. And you can demand this under the Patriot Act. What are they gonna say? If you sold a house 15 years ago can you go back and get the money you were due? Sure. I'd make a claim on it. There's no statute of limitations on a 1099 OID. Robert Brown was the chief prosecutor for the CID of the Internal Revenue Service. He's in private practice now.
2

They refer me to the complex issues committee cause they don't know anything about gift and estate taxes which are capital transfer taxes and that's what you're involved in. You're not involved in income tax. Per the 16209 decoding manual on the IRS website. The ADP, Automated Data Processing manual. Type in IDRS space ADP. Integrated Data Retrieval System. In 2-7 thru 2-11 it says all W2's, all W4's, all 1099's, 1096's and 1098's are all class 5 gift and estate taxes. Class 5 gift and estate taxes have to be reported on a 706 or a 709 tax form. 709 is for gift taxes. You have a $350,000 exclusion. You show me a person who makes wages in excess of $350,000. Form 706 is generation skipping transfer taxes. And they have your Unified Tax Credit or exclusion built into the form. Per the complete book of wills, estates and trusts. Everything is a donation. Read title 26 section 2512 b. If we receive the donation we don't have to pay the tax on it, right? Yeah, the donor is supposed to pay it. Who's the donor? Your employer.

25

You're paying all their taxes for them. Who's the donor? The person who paid you. He paid you which is a gift so the donor had to pay the tax. Read 2002 of title 26. Gifts over 50,000.00 are taxable income see the rules. that includes your military retirement and your social security, The donor has to pay it. And if the donor doesn't pay it the donee has to pay it. See section 6901 H. So what I do is I make them pay it even though I'm the donor. Read 6023 C2. A lien attaches until the tax is paid. Read 2032 A e 11 of title 26 it talks about a qualified heir under section 1014 of title 26. If you're a qualified heir and you're the recipient or the receiver of funds from a decedent you are a qualified heir. You have to file a bond with the secretary of treasury to cover the tax liability. That's the first thing to ask them when I go into court is where's your bond to indemnify the tax liability as the recipient of the funds from the decedent? You've acquired funds from a decedent under 1014 of title 26 and you haven't paid the tax. You're in possession of contraband. I'm gonna have the IRS come out here and seize all your property. Where is the 1099 OID?
2

if you don't understand tax law, trust law, commercial law and accounting you can't understand anything that's going on. It takes a knowledge of all 4 divisions that I understood what was going on in the court room. The chancery judge has his own set of books and so does the clerk. If you really want to shake them up tell them you want a copy of their depository resolution agreement with the federal reserve bank of new York? Or whomever your agreement is with. And that's what covers the PIMA. Private Money Investment Account. (Also known as the CRIS ACCOUNT, I think, more shell game tactics) They're taking all your funds and investing it all and getting all the proceeds and you're not getting a penny. I think If you know 5 or 6 key statements when you take it into the court system they will run away from you,
1) 2)

Where is the 1099 OID? I object to tour testimony, you are civilly dead and represent a civilly dead bankrupt corporation, you cannot testify. Where is the real party in interest, until we have a ratification of commencement, we have no case, this court has no jurisdiction, and I do not consent. I am the executor for the estate in question, a living heir. Are you attempting to probate the estate without my consent?
2

3)

4)

5) 6) 7)

Where is your authority to make claims against the estate, produce the claim. I am the beneficiary, Trustor, settlor, and the executor. Do you have written authority from the Office of executor to administer the estate? I have appointed a successor executor, who has all authority upon my demise. Neither I nor my appointed successor will die intestate. Are you un-aware that no administrative process is valid when the executor appears. Does anyone want to challenge my status as a living tribunal of spirit, mind, and body? It is my belief, that the attorneys are acting as debt collectors, in possession of contraband, and tax evasion, by establishing the escrow account number with this case. Are they willing and have evidence to support claims as required by the Fair debt Collection Practices act? As to the REMIC, I have a possessory claim upon the proceeds, profits and source of the funds. Is this court ready to furnish me with a warrant for payment, or the negotiable order of the court for restitution? Shall I appoint you judge as the designated trustee to settle these public claims?

8)

9)

10)

11)

12)

13)

14)

15)

Per the Uniform Trust Code, sections 401 and 402. It tells how to put a trust together. 406 and 407 says you can do a trust orally. Make the judges and attorneys trustees, and under 3-601 of the Uniform Probate Code make them put up a one or five million dollar fidelity bond to guarantee their fiduciary trustee duty as a fiduciary trustee. I did a criminal IRS case and when I filed the declaration of trust they dismissed the
2

criminal charges and went civil with it. Title 26 was never passed into law. Per Walter Cox as a supreme court justice of the real supreme court gave a speech on the house floor. He says without any legal authority whatsoever, there was three attorneys, without any legal authority, they did their revision of the revised statutes of the united states which are where titles one through fifty came from. None of the titles one through fifty have been passed into positive law because they were never presented, and I can show you in the congressional record, where they were never presented to the president and signed into law. He never approved it. So none of your titles one through fifty are positive law. Well you don't have any law. They're regulations. Title 26, that's the rules and regulations that they operate by and so I use that on them, they are corporate employee regulations. title 26 of the Internal Revenue Code is not illegal. It is employee regulations. Titles one through 50 have not been enacted into law. . The courts, and all corporations are acting as a backup withholding agents for the Internal Revenue Service. They put you in jail on a tax charge, for breach of fiduciary duty as a trustee. Because you signed up for an social security account which is only for government employees.
2

And so they were spending your interest while they put you in jail as the principal. there's no statute of limitation on fraud. So you could go back and sue them. Well why don't you go get the money. Go after your interest. Interest accrues to principal. Until interest is returned back to the principal you can't have settlement and closure. You have to assess the tax, make them return the interest back to you so you can do settlement and closure. Tell the judge you want him to settle and close the case and you're authorizing it. That's why you appoint them as trustees. I tell them I'm the executor of the legal estate of the decedent, the all capital letter name, which is the legal estate. That's who they're bringing the claim against because that's where all the money is. Its in an escrow account. You don't have to be appointed to be an executor. Go into 2203 of title 26. It defines what an executor is. It says executor and/or administrator. Every county has an administrator. The administrator is acting as the executor because there's no beneficiary established on their record. If there is no administrator or executor been appointed then whoever had actual or constructive custody of the estate property is acting as the executor or the administrator. When you go into court, who has actual and constructive custody of the estate property? Doesn't the judge? Isn't he administrating or acting as the estate? well who gave him permission to do that?
3

Well because its abandoned. When its abandoned property and the estate is intestate then it escheats back to the state by operation of law, under probate law. They're probating your estate. See what a constructive trust is in equity? Download this case; Googenheim v US exploration company. Because there is no heir or beneficiary or executor on the court record of the defendant who is the legal estate, the court does a constructive trust in equity to give restitution and reimbursement to the plaintiff and appoints the defendant as the trustee. What's the purpose of a trustee? To run the trust for the benefit of the beneficiary who is the plaintiff on all these cases, civil or criminal. So they make the state the beneficiary and you have to give all your money to the beneficiary under a constructive trust. So what I do is I go in there and get the accounting, in the bk court. So you have paid $350 to get the filing done, 60.00 for credit counseling, 160.00 for the online bk assistance so the state codes are right, you have put the estate in safe keeping to protect against fraudulent claims. I appointed them as the fiduciary trustee. (form 56)Now they're the trustees. Now they have to run the court case for the benefit of you or me. to get your money back on a paid off mortgage? file an adverse claim under 8-102, 8-105 and 8-505 and 8-508 tells you how to do it. why do you file the claim? Because you're an investor. I'm an investor. That's what Neil
3

Garfield said. He says by operation of law you have the same rights but he doesn't tell you how to do it. . file an adverse claim 8-102 with nefra [its FINRA] [to get paid off mortgage money back] you file because you're an investor its administrative you dont go into court. Securities Investment Protection Agency corp. Im going to file with nefra finra. I have a form for filing the claim then you can ask for the proceeds. FINRA regulates the SEC If it ends up in court the SIPC, under the SIPA, they're the agency under FINRA so I'm gonna file the case with FINRA. ( FINRA Financial Industry Regulatory Authority.) All these investors are going to have to give you back all your money they've been taking, and they can all sue the lawyers and masterminds of this gigantic con job. I don't care about the note. I want the security, the proceeds. I don't even get into the loan thing. I want to know where my proceeds are. But you can't go in there and ask for the proceeds until you file the claim. FINRA regulates the SEC. filing a claim with an agency that's going to ensure you get paid otherwise the other party is ultimately being a crook and they get fined, penalized. That's why these courts aren't paying attention to your arguments on a loan. There is no loan. you need to understand why you have a claim. ...they don't transfer [shit any property] to a REMIC cause they don't own them. You do. chisom v georgia, they cannot sue you under the 11th amendment. 11th amendment didn't change chisom v georgia.

The sovereignty is still in the people. Foreign Sovereign Immunities Act. Title 28 section 1601 through 1610. They use the 11th amendment because you don't use it. TALK A GOOD GAME AND TELL THEM TO DO THE ADMINISTRATIVE PAPERWORK..THAT IS WHAT THEY GET PAID FORWHO WANTS TO BE A LAWYER????????

M.J. Stein & Associates has filed a mass joinder lawsuit against Bank of America (BOA) in Florida, another of potentially the most significant and precedent-setting legal actions taken against lenders as a result of the national foreclosure crisis, it was announced today by Mitchell J. Stein, Esq. of Mitchell J. Stein & Associates. The Firm has filed suit in Florida in behalf of a mass joinder of plaintiffs seeking damages and injunctive relief as a result of the Banks fraud and violations of the Deceptive Practices Act in Florida. The Firm is cocounsel in the case with former State of Florida Fraud Chief Michael Riley, Esq. The case is Brewer v. Bank of America, Fla. 17th Circuit 11004756. The lawsuit alleges Bank of America (BOA) perpetrated a massive fraud, also constituting unfair competition upon borrowers that devastated the values of their residences, resulting in the loss of net worth, and that BOA intended to deprive numerous rights and remedies for the problems they caused the borrowers. The scale of fraud we allege was perpetrated by Bank of America in this case is the reason we are working in partnership with Mike Riley, Esq., former State of Florida Fraud Chief. Our case will prove the Bank did not care about borrowers who would suffer from actions that would generate profits for them and allow them get out before the truth of their activities was exposed, said Mitchell J. Stein, Esq. The fraud we al3

lege resulted in a mortgage meltdown which has lead to decreased home values throughout the state of Florida. According to court documents, the lawsuit claims the Bank disregarded underwriting standards and implemented a massive fraud that was concealed from borrowers and other mortgagees on an unprecedented scale. The lawsuit alleges that, as a result of the Banks actions, borrowers lost equity in their homes, their credit ratings and histories were destroyed and they incurred unnecessary costs and expenses. Mr. Stein filed the suit along with former Florida State fraud chief Michael M. Riley. Mitchell J. Stein & Associates is also leading the landmark lawsuit, Ronald v. Bank of America, Los Angeles Superior Court Case No. BC409444, the first mass joinder case filed against the banks following the bank fraud and economic meltdown of the 2008, in which the Firm is representing more than one thousand California consumers against attempted foreclosures by Bank of America. In October 2010, Mitchell J. Stein & Associates obtained an order in favor of all clients and against the Bank from Federal Judge Manuel Real who to one of the Banks arguments as absurd and threw the Bank out of Federal District Court with respect to the case. On January 11, 2011, a Los Angeles Superior Court Judge ruled that the Ronald case states valid causes of action against Bank of America allowing for discovery and depositions that are now being conducted as the case moves forward in California State and Appellate Court. The case is rapidly moving forward in California State and Appellate Court. The Firm is unaware of any mass joinder case in which the Court has accepted the complaint and allowed Plaintiffs to proceed. In addition to the landmark Ronald case, Mitchell J. Stein, Esq. has also filed lawsuits against other major banks and lenders on behalf of aggrieved consumers including Locker v. Ally Bank, Superior Court Los Angeles, BC409444. a mass joinder case against Ally Bank and its affiliates, formerly GMAC, and Carlson v. J.P. Morgan, Superior Court Los Angeles, BC452262, a mass joinder case against the J.P. Morgan Group on behalf of dozens of citizens and homeowners.
3

Bad actors must be held responsible for the irreparable and massive damage done to peoples lives and the State of Florida due to their unbridled greed and avarice, said Mitchell J. Stein, Esq. In this case, we are representing thousands of homeowners who as a result of horrible practices have wrongfully lost their homes or are facing wrongful foreclosure, said Mitchell J. Stein, Esq. ABOUT MITCHELL J. STEIN & ASSOCIATES Mitchell J. Stein & Associates is a California-based law firm founded by M.J. Stein, Esq. a 25-year award-winning litigator, trial lawyer, financier, and entrepreneur who has represented many of the worlds largest companies and has been involved in some of the highest profile cases in the Nations history. The Firms philosophy is based on the belief that their clients needs are of the utmost importance and, as a result, a high percentage of the Firms business has been from repeat customers and referrals. The Firms practice areas include Complex Litigation, Bank Problems, Mergers & Acquisitions, Commercial and Residential Foreclosures , and Bankruptcy Litigation. Mr. Stein is also the founder of VIPS Foundation (Victims of Injustice Pain and Suffering), through which victims nationwide, over the last 15-years, have received assistance following unfortunate events that subjected them to oppression or mistreatment. In that regard, Mr. Stein received the inaugural Mitchell J. Stein Benefactor Award from the National Organization for Victims Assistance (NOVA) for his work in protecting victims rights. Visit http://www.mjsteinassociates.com or http://www.dobielaw.org for more information.

HERE ARE FACTS MOST DON'T KNOW, BUT SHOULD 1. The IRS is not a US government agency. It is an agency of the IMF (International Monetary Fund) (Diversified Metal Products v I.R.S et al. CV-93-405E-EJE U.S.D.C.D.I., Public Law 94-564, Senate report 94-1148 pg. 5967, Reorganization Plan No. 26, Public Law 102-391) 2. The IMF (International Monetary Fund) is an agency of the U.N. (Black's Law Dictionary 6th Ed. page 816) 3. The United States has NOT had a Treasury since 1921 (41 Stat. Ch 214 page 654) 4. The U.S. Treasury is now the IMF (International Monetary Fund) (Presidential Documents Volume 24-No. 4 page 113, 22 U.S.C. 285-2887) 5. The United States does not have any employees because there is no longer a United States! No more reorganizations. After over 200 years of bankruptcy it is finally over. (Executive Order 12803) 6. The FCC, CIA, FBI, NASA and all of the other alphabet gangs were never part of the U.S. government, even though the "U.S. Government" held stock in the agencies. (U.S. v Strang, 254 US491 Lewis v. US, 680 F.2nd, 1239) 7. Social Security Numbers are issued by the U.N. through the IMF (International Monetary Fund). The application for a Social Security Number is the SS5 Form. The Department of the Treasury (IMF) issues the SS5 forms and not the Social Security Administration. The new SS5 forms do not state who publishes
3

them while the old form states they are "Department of the Treasury". (20 CFR (Council on Foreign Relations) Chap. 111 Subpart B. 422.103 (b)) 8. There are NO Judicial courts in America and have not been since 1789. Judges do not enforce Statutes and Codes. Executive Administrators enforce Statutes and Codes. (FRC v. GE 281 US 464 Keller v. PE 261 US 428, 1 Stat 138-178) 9. There have NOT been any judges in America since 1789. There have just been administrators. (FRC v. GE 281 US 464 Keller v. PE 261 US 428 1 Stat. 138-178) 10. According to GATT (The General Agreement on Tariffs and Trade) you MUST have a Social Security number. (House Report (103-826) 11. New York City is defined in Federal Regulations as the United Nations. Rudolph Guiliani stated on C-Span that "New York City is the capital of the World." For once, he told the truth. (20 CFR (Council on Foreign Relations) Chap. 111, subpart B 44.103 (b) (2) (2) ) 12. Social Security is not insurance or a contract, nor is there a Trust Fund. (Helvering v. Davis 301 US 619 Steward Co. v. Davis 301 US 548) 13. Your Social Security check comes directly from the IMF (International Monetary Fund), which is an agency of the United Nations. (It says "U.S. Department of Treasury" at the top left corner, which again is part of the U.N. as pointed out above) 14. You own NO property. Slaves can't own property. Read carefully the Deed to the property you think is yours. You are listed as a TENANT. (Senate Document 43, 73rd Congress 1st Session) 15. The most powerful court in America is NOT the United States Supreme court, but the Supreme Court of Pennsylvania. (42 PA. C.S.A. 502) 16. The King of England financially backed both sides of the American Revolutionary War. (Treaty of Versailles-July 16, 1782 Treaty of Peace 8 Stat 80) 17. You CANNOT use the U.S. Constitution to defend yourself because you are NOT a party to it! The U.S. Constitution applies to the CORPORATION OF THE UNITED STATES, a privately owned and operated corporation (headquartered
3

out of Washington, DC) much like IBM (International Business Machines, Microsoft, et al) and NOT to the people of the sovereign Republic of the united States of America. (Padelford Fay & Co. v The Mayor and Alderman of the City of Savannah 14 Georgia 438, 520) 18. America is a British Colony. The United States is a corporation, not a land mass and it existed before the Revolutionary War and the British Troops did not leave until 1796 (Republica v. Sweers 1 Dallas 43, Treaty of Commerce 8 Stat 116, Treaty of Peace 8 Stat 80, IRS Publication 6209, Articles of Association October 20, 1774) 19. http://www.youtube.com/watch?v=lVsMUpPgdT0 20. Britain is owned by the Vatican. (Treaty of 1213) 21. The Pope can abolish any law in the United States (Elements of Ecclesiastical Law Vol. 1, 53-54) 22. A 1040 Form is for tribute paid to Britain (IRS Publication 6209) 23. The Pope claims to own the entire planet through the laws of conquest and discovery. (Papal Bulls of 1495 & 1493) 24. The Pope has ordered the genocide and enslavement of millions of people. (Papal Bulls of 1455 & 1493) 25. The Pope's laws are obligatory on everyone. (Bened. XIV., De Syn. Dioec, lib, ix, c. vii, n. 4. Prati, 1844 Syllabus Prop 28, 29, 44) 26. We are slaves and own absolutely nothing, NOT even what we think are our children. (Tillman vs. Roberts 108 So. 62, Van Koten vs. Van Koten 154 N.E. 146, Senate Document 438 73rd Congress 1st Session, Wynehammer v. People 13 N.Y. REP 378, 481) 27. Military dictator George Washington divided up the States (Estates) in to Districts (Messages and papers of the Presidents Volume 1 page 99 1828 Dictionary of Estate) 28. "The People" does NOT include you and me. (Barron vs. Mayor and City Council of Baltimore 32 U.S. 243)
3

29. It is NOT the duty of the police to protect you. Their job is to protect THE CORPORATION and arrest code breakers. (SAPP vs. Tallahassee, 348 So. 2nd. 363, REiff vs. City of Phila. 477 F. 1262, Lynch vs. NC Dept. of Justice 376 S.E. 2nd. 247) 30. Every thing in the "United States" is up for sale: bridges, roads, water, schools, hospitals, prisons, airports, etc, etc... Did anybody take time to check who bought Klamath Lake?? (Executive Order 12803) 31. "We are human capital (Executive Order 13037) The world cabal makes money off of the use of your signatures on mortgages, car loans, credit cards, your social security number, etc. 32. The U.N. - United Nations - has financed the operations of the United States government (the corporation of THE UNITED STATES OF AMERICA) for over 50 years (U.S. Department of Treasury is part of the U.N. see above) and now owns every man, woman and child in America. The U.N. also holds all of the land of America in Fee Simple. Source: http://home/iae.nl/users/lightnet/world/essays.html The good news is we don't have to fulfill "our" fictitious obligations. You can discharge a fictitious obligation with another's fictitious obligation. These documents are not secret. They are a matter of public record. Simple words such as "person" "citizen" "people" "or" "nation" "crime" "charge" "right" "statute" "preferred" "prefer" "constitutor" "creditor" "debtor" "debit" "discharge" "payment" "law" and "United States" doesn't mean what we think it does because we were never taught the legal definitions of the above words.

ATTN: Scoffers!! - - Scoffers who disbelieve that the Vatican and England control America, with each of the three entities playing their respective parts in Bible Prophesy and current World events. I did not dream up the titles of the following article, nor the title of the book introduced in the attachments by the same name - - "EMPIRE OF THE CITY", but here you have it. It is the greatest, the longest running, and most deceptive secretive event ever known in World History, and ever to be known to exist. No attorney will find legal precedents for any of this because the Secret Societies control the courts, what those courts hear, and the legal profession - - all of whom are Crown Temple members via their respective BAR ASSOCIATION MEMBERSHIPS, while many are also Secret Society members of one form or another - - Rosicrucians, Knights of Malta, Bilderbergers, CFR members, Knights of the Golden CIrcle, Knights of Columbus, Illuminati, Freemasons, etc. The book, "EMPIRE OF THE CITY", was first copyrighted on May 22, 1944. In February of 1945, the second edition was printed from which the attachments were made. Yet, these 'three sister states' are but mere surrogates of the Black Pope whose orders flow direct from Satan. Yes, it is too much for most to believe. JFK came close to exposing it, and you all know of his fate. Scoffers should surely take the time to view and closely listen to the video below the picture of Obama and his 'boss'. If you are a Roman Catholic who knows of part or all of this, and remain one, you ought to be ashamed of yourself. If you are ignorant of it, I am sorry you must endure it to be 'informed', but in either case, it would be wise to pay heed to Revelation 18:4 without hesitation. "When a responsible man or woman becomes knowledgeable of the truth, it becomes his/her duty to act on the knowledge that God has imparted to him. Whether as a result of knowledge or ignorance, all Americans will ultimately be held responsible for supporting this abomination. Bob J
4

Want Your Mind Blown? Watch This Video! Obama Answers To The Vatican
http://www.pakalertpress.com/2011/12/07/want-your-mind-blown-watch-this-video-obama-answers-to-the-vatican/ Posted on truther on December 7, 2011 The City of London + City of Vatican + City of Columbia are the 3 independent states within states which forms the empire of the city. The first is financial control over earth economy. The second is religion control over the earth. And the third one is military control over the earth. Together they make the very unholy trinity which forms the Egyptian pyramid that we can see on the back of the privately owned federal reserve note that is used as American dollar to maintain the colony in debt and under the Queen.

Many people realize that this mystifying situation, in which an alleged democratic and self-governing nation is actually controlled against the will of the people, is a clear indication that there must be a very powerful and well-financed occult organization which plans and directs world affairs, and for lack of a more specific identification the suspected secret organization is popularly referred to as the International Financiers, Banksters cartel or The Crown corporation.

PREEMPTIVE LAWSUIT TO ENJOIN THREATENED FORECLOSURE AND QUIET TITLE IN CALIFORNIA GETS THE BOOT In a continuing series of defeats for California homeowners the Robinson case shot down another attempt at preventing a pretender lender from foreclosing. (Robinson v. Countrywide Home Loans,
130 Cal.Rptr.3d 811, Court of Appeal, Fourth District, Division 2, California (Sept. 12, 2011).

Some homeowners in California continue to challenge MERS and their role in the foreclosure process and wrongful initiation of foreclosure. These types of suits may also seek to quiet title. Here is a recent case that denied the right to pursue that legal theory. Here are the facts of the case as discussed in the opinion
The following facts are alleged in plaintiffs complaint: In October 2007, plaintiffs borrowed $380,000 from lender SBMC Mortgage to finance the purchase of real estate. In connection with that transaction, they executed a promissory note, which was secured by a deed of trust. The deed of trust identifies SBMC Mortgage as the lender and identifies T.D. Service Company as the trustee. It identifies MERS as acting solely as a nominee for Lender and Lenders successors and assigns, and states that MERS is the beneficiary under this Security Instrument. The deed of trust further states that Borrower [i.e., plaintiffs] understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lenders successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property. In December 2008 and January 2009, Countrywide, identifying itself as a debt collector and the servicer of the loan on the noteholders behalf, notified plaintiffs that their loan was delinquent. Plaintiffs attorney wrote to Countrywide requesting information concerning the loan, including a copy of the note, documents evidencing any sale, transfer, or assignment of the note, and a beneficiary statement and payoff demand statement pursuant to Civil Code section 2943. Countrywide requested more time to respond but did not provide the requested documents before notifying plaintiffs, on February 27, 2009, that their loan was in default and had been referred to Countrywides foreclosure management committee for review. On February 11, 2009, however, ReconTrust, purporting to act as agent for the beneficiary of the deed of trust, had recorded a notice of default and election to sell the property under the deed of trust, stating that plaintiffs were in default and that the present beneficiary had elected to cause the property to be sold. Despite further requests, Countrywide failed to identify the current beneficiary on the note and deed of trust. Plaintiffs alleged that their promissory note was sold and resold on the secondary mortgage market, and that as a result, it had become difficult or impossible to ascertain the actual owner of the beneficial interest in the note. They alleged that the identity of the person or entity that currently holds an ownership interest is unknown. They alleged that because Countrywide failed to comply with its statutory duty to provide them with the documents they requested, they did not know to whom they owed the obligation to repay the loan. They alleged on information and belief that a person purporting to be the rightful current beneficiary, by virtue of a purported assignment from MERS, authorized an agent to cause the notice of default and election to sell to be recorded. They alleged on information and belief that SBMC did not assign the note to MERS and did not authorize MERS or any other person to assign the note to anyone on its behalf. They alleged on information and belief that the person or entity who directed the initiation of the foreclosure process was not the notes rightful owner and was acting without the rightful owners authority.

On or about June 1, 2010, plaintiffs filed a second amended complaint, alleging wrongful initiation of foreclosure (first cause of action), violation of Civil Code section 2943, subdivision (b)(1) (fourth cause of action) and unfair business practices (fifth cause of action). Plaintiffs also sought declaratory relief (second cause of action) and to quiet title (third cause of action). The California court of Appeals disagreed with Plaintiff and in citing the Gomes case held:
Plaintiffs allege in their first and second causes of action that the entity which initiated foreclosure proceedings had no legal authority to do so because it was not either the current beneficiary of the deed of trust or the agent of the current beneficiary.Plaintiffs contend that section 2924, subdivision (a)(1)(C) by necessary implication provides that a borrower who is subject to foreclosure under a deed of trust may file an action to challenge the foreclosing partys standing to do so. The balance of their argument is that MERS had no legal authority to initiate a foreclosure. The issues plaintiffs raise concerning MERS and the securitized mortgage market were recently discussed in Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 121 Cal.Rptr.3d 819 (Gomes ), review denied May 18, 2011. There, the court concluded that the plaintiff failed to identify a legal basis for an action to determine whether MERS had authority to initiate a foreclosure proceeding. (Id. at pp. 11541157, 121 Cal.Rptr.3d 819.) We agree with the Gomes court that the statutory 4

scheme ( 29242924k) does not provide for a preemptive suit challenging standing. Consequently, plaintiffs claims for damages for wrongful initiation of foreclosure and for declaratory relief based on plaintiffs interpretation of section 2924, subdivision (a), do not state a cause of action as a matter of law. (Gomes, supra, at pp. 1152, 11541157, 121 Cal.Rptr.3d 819.) Moreover, even if such a statutory claim were cognizable, the second amended complaint does not state facts upon which such a claim could be based as to MERS and Countrywide. The complaint alleges that foreclosure proceedings were initiated by ReconTrust, not by Countrywide or MERS. It does not allege that ReconTrust purported to act as an agent for MERS or for Countrywide. Rather, it alleges that ReconTrust purported to act as agent for an unnamed beneficiary which purported to have been assigned the note and deed of trust by MERS (i.e., the beneficiary is alleged to be an entity other than MERS). The notice of default is not contained in the record, and the complaint does not state the name of the beneficiary on whose behalf ReconTrust purported to act. Accordingly, even if a statutory action for damages or for declaratory relief were available to challenge the standing of the foreclosing entity, the second amended complaint does not allege any facts upon which such an action could be based with respect to Countrywide or MERS. FINAL DISPOSITION The judgment was affirmed. Costs on appeal were awarded to defendants Countrywide Home Loans, Inc. and Mortgage Electronic Registration Systems, Inc. Again, the Courts are not interested in allowing defaulting Plaintiff homeowners to challenge legal standing to foreclose (essentially a variation of the produce the note) defense in a civil non-judicial foreclosure setting. For unbiased legal information for California homeowners facing foreclosure visit our video information website at http://www.ForeclosureWarrior.com. We also have pleadings and video case briefs for California foreclosure lawyers.

Citation: Ferguson v. Avelo Mortgage, LLC (Cal.App. 2 Dist. Jun. 1, 2011), Cal.Rptr.3d 2011, WL 2139143, This case involves another challenge to a non-judicial foreclosure sale in California. The basic facts of this case are that a borrower initially took out a loan with New Century Mortgage which loan was accompanied by a MERS deed of Trust (MERS was the nominee of the lender and its successors and assigns under the deed of trust and also listed as the beneficiary). The Trustee under the Deed of Trust was First American Title Compamy. After a default of the $600,000 purchase loan taken out by borrower HYUNH in 2006, the following sequence of recorded documents occurred: (1) 8/3/07 a Notice of Default was recorded by Quality Loan Service Corporation (QLSC) Note that the trustee under the Deed of Trust was First American Title; (2) 8/30/07 Assignment of Deed of Trust was recorded (MERS assigned its beneficial interest to Avelo Mortgage) Note the typical assignment of the Deed of Trust together with notes therein (The Fontenot case sees this as proper even though MERS does not, and has never held any note in its possession). (3) 11/9/07 Notice of Sale by QLSC. (4) 11/9/07 (same day but after the Notice of Sale was recorded) Substitution of Trustee was recorded substituting QLSC for First American Title (note, apparently this document was executed on 8/2/07 prior to the notice of default being recorded by QLSC); Thereafter, the property was sold at non-judicial foreclosure trustee sale on 7/08. The purchaser at the foreclosure sale was Avelo Mortgage, allegedly paying 400k for the property. Avelo recorded the Trustees Deed upon sale. After the sale, HYUNH (the original borrower), Quitclaimed his interest to Ferguson (the Plaintiff in this action) on 6/27/09. Ferguson recorded his Quitclaim deed on 7/1/09 and brought suit to Quiet Title
4

against Avelo Mortgage arguing the foreclosure sale was illegal as Avelo received no valid interest from MERS in the Assignment of Deed of Trust since MERS had no note to assign, and thus Avelo had no authority to foreclose. Under this theory, Ferguson argued there was no requirement to tender the full amount of the loan balance to try to set aside the foreclosure sale and claim the property as his own since he was challenging the foreclosure sale and not the foreclosure procedure. In addition, Ferguson argued there can be no tender rule requirement where Avelo is not the true beneficiary (since they never got the note. Ferguson also sued HYUNH for fraud. The Court disagreed with the Plaintiff Ferguson, and held that the tender rule applies whether or not Avelo had any note. Here is the relevant language of the case: (3) The power of sale in a deed of trust allows a beneficiary recourse to the security without the necessity of a judicial action. (See Melendrez v. . . . Investment, Inc. (2005) 127 Cal.App.4th 1238, 1249 [26 Cal.Rptr.3d 413].) Absent any evidence to the contrary, a nonjudicial foreclosure sale is presumed to have been conducted regularly and fairly. (Civ. Code, 2924.) However, irregularities in a nonjudicial trustees sale may be grounds for setting it aside if they are prejudicial to the party challenging the sale. (See Lo v. Jensen (2001) 88 Cal.App.4th 1093, 1097-1098 [106 Cal.Rptr.2d 443]; see also Angell v. Superior Court (1999) 73 Cal.App.4th 691, 700 [86 Cal.Rptr.2d 657] ["`In order to challenge the sale successfully there must be evidence of a failure to comply with the procedural requirements for the foreclosure sale that caused prejudice to the person attacking the sale.'"].) Setting aside a nonjudicial foreclosure sale is an equitable remedy. (Lo v. Jensen, supra, 88 Cal.App.4th at p. 1098 ["A debtor may apply to a court of equity to set aside a trust deed foreclosure on allegations of unfairness or irregularity that, coupled with the inadequacy of price obtained at the sale, mean that it is appropriate to invalidate the sale."].) A court will not grant equitable relief to a plaintiff unless the plaintiff does equity. (See Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578-579 [205 Cal.Rptr. 15]; see also 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, 6, pp. 286-287.) Thus, [i]t is settled that an action to set aside a trustees sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security. (Arnolds Management Corp. v. Eischen, supra, 158 Cal.App.3d at p. 578; see also FPCI RE-HAB 01 v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1022 [255 Cal.Rptr. 157] [rationale behind tender rule is that irregularities in foreclosure sale do not damage plaintiff where plaintiff could not redeem property had sale procedures been proper].) However, a tender may not be required where it would be inequitable to do so. (See Onofrio v. Rice (1997) 55 Cal.App.4th 413, 424 [64 Cal.Rptr.2d 74]; see also Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 876-878 [97 Cal.Rptr.2d 255] [when new trustee has been substituted, subsequent sale by former trustee is void, not merely voidable, and no tender needed to set aside sale].) Specifically, `if the [plaintiff's] action attacks the validity of the underlying debt, a tender is not required since it would constitute an affirmative of the debt. (Onofrio v. Rice, supra, 55 Cal.App.4th at p. 424.) Appellants contend they are not challenging irregularities in the foreclosure proceeding. Rather, they argue that respondent is not the holder of the underlying promissory note and therefore cannot invoke the tender rule against them. In their complaint, appellants alleged that New Century remains in possession of the promissory note and that appellants owe no obligation to respondent. On appeal, appellants contend that whether respondent holds the promissory note is a factual dispute, and sustaining respondents demurrer presupposes that respondent has authority to enforce the loan obligation. They assert that while MERS had the authority to transfer its beneficial interest under the deed of trust, there is no evidence that MERS, which was acting as a nominee of New Century, held the promissory note and was authorized to assign the note itself to respondent.
4

The role of MERS is central to the issues in this appeal. `MERS is a private corporation that administers the MERS System, a national electronic registry that tracks the transfer of ownership interests and servicing rights in mortgage loans. Through the MERS System, MERS becomes the mortgagee of record for participating members through assignment of the members interests to MERS. MERS is listed as the grantee in the official records maintained at county register of deeds offices. The lenders retain the promissory notes, as well as the servicing rights to the mortgages. The lenders can then sell these interests to investors without having to record the transaction in the public record. MERS is compensated for its services through fees charged to participating MERS members. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1151 [121 Cal.Rptr.3d 819] (Gomes v. Countrywide), quoting Mortgage Electronic Registration Systems, Inc. v. Nebraska Dept. of Banking & Finance (2005) 270 Neb. 529 [704 N.W.2d 784, 785].) (4) Appellants cite two federal cases for the proposition that MERS, as the nominee of the lender under a deed of trust, does not possess the underlying promissory note and cannot assign it, absent evidence of an explicit authorization from the original lender. (See Saxon Mortgage Services, Inc. v. Hillery (N.D.Cal., Dec. 9, 2008, No. C-08-4357) 2008 U.S.Dist. Lexis 100056; see also In re Agard (Bankr. E.D.N.Y. 2011) 444 B.R. 231.) Not all courts agree on this issue and appellants do not distinguish nor address other cases that have upheld MERSs ability to assign a mortgage. (See US Bank, N.A. v. Flynn(N.Y.Sup. 2010) 27 Misc.3d 802 [897 N.Y.S.2d 855, 859] [assignee of MERS has standing to initiate foreclosure proceeding because where "an entity such as MERS is identified in the mortgage indenture as the nominee of the lender and as the mortgagee of record and the mortgage indenture confers upon such nominee all of the powers of such lender, its successors and assigns, a written assignment of the note and mortgage by MERS, in its capacity as nominee, confers good title to the assignee and is not defective for lack of an ownership interest in the note at the time of the assignment"]; see also Crum v. LaSalle Bank, N.A. (Ala.Civ.App. 2009) 55 So.3d 266, 269.) We are not bound by federal district and bankruptcy court decisions, and the cases cited by appellants are in direct conflict with persuasive California case law. In Gomes v. Countrywide, supra, 192 Cal.App.4th 1149, plaintiff Gomes obtained a loan from KB Home Mortgage Company (KB Home) to finance a real estate purchase. He executed a promissory note secured by a deed of trust naming KB Home as the lender and MERS as KB Homes nominee and beneficiary under the deed of trust. (Gomes v. Countrywide, supra, 192 Cal.App.4th at p. 1151.) The deed of trust contained a provision granting MERS the power to foreclose and sell the property in the event of a default. (Ibid.) Gomes defaulted on his payments and was mailed a notice of default by ReconTrust, which identified itself as an agent for MERS. Attached was a declaration signed by Countrywide Home Loans, acting as the loan servicer. (Ibid.) Gomes filed suit against Countrywide Home Loans, ReconTrust and MERS for wrongful initiation of foreclosure, alleging MERS did not have authority to initiate the foreclosure because it did not possess the note and was not authorized by its current owner to proceed with foreclosure. (Id. at p. 1152.) Defendants demurred, arguing, among other things, that Gomes was required to plead tender to maintain a cause of action for wrongful foreclosure and that the terms of the deed of trust authorized MERS to initiate a foreclosure proceeding. The trial court sustained the demurrer without leave to amend. (Ibid.) On appeal, the court affirmed the order, finding that Gomes could not seek judicial intervention in a nonjudicial foreclosure before the foreclosure has been completed. (Gomes v. Countrywide, supra, 192 Cal.App.4th at p. 1154.) Nonetheless, the appellate court reached the merits of Gomess claim as an independent ground for affirming the order sustaining the demurrer. The court rejected Gomess argument that MERS lacked authority to initiate the foreclosure procedure because the deed of trust explicitly provided MERS with the authority to do so. The court found that the deed of trust contains no suggestion that the lender or its successors and assigns must provide Gomes with assurances that MERS is autho4

rized to proceed with a foreclosure at the time it is initiated. (Id. at p. 1157.) Thus, Gomes acknowledged MERSs authority to foreclose by entering into the deed of trust. (Ibid.) Just as in Gomes v. Countrywide, the deed of trust in this case specifically states: Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lenders successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument. (5) Appellants concede that MERS had the authority to assign its beneficial interest to respondent.Accordingly, respondent had the same authority to initiate foreclosure proceedings. And while Gomes v. Countrywide did not address the tender issue, it does not follow that a beneficiary may initiate nonjudicial foreclosure proceedings under a deed of trust without the original promissory note, but cannot seek tender from a defaulting borrower attempting to set aside the foreclosure. Although California courts have not resolved this issue (see Miller & Starr, Cal. Real Estate (3d ed. 2010-2011 Supp.) Deeds of Trust and Mortgages, 10:39:10, p. 4), several federal district courts in this state have upheld a beneficiarys authority to initiate foreclosure proceedings and invoke the tender rule against a defaulting borrower, even when the beneficiary is not the holder of the original promissory note. Those courts have noted that California law `does not require possession of the note as a precondition to [nonjudicial] foreclosure under a Deed of Trust. (Jensen v. Quality Loan Service Corp. (E.D.Cal. 2010) 702 F.Supp.2d 1183, 1189; see also Odinma v. Aurora Loan Services (N.D.Cal., Mar. 23, 2010, No. C-09-4674 EDL) 2010 U.S. Dist. Lexis 28347; see also Morgera v. Countrywide Home Loans, Inc.(E.D.Cal., Jan. 11, 2010, No. 2:09-cv-01476-MCE-GGH) 2010 U.S.Dist. Lexis 2037, p. *21 [MERS, as nominee of lender, has authority to initiate nonjudicial foreclosure without underlying promissory note].) Moreover, in cases involving an assignment of a deed of trust from MERS to a third party, courts have invoked the tender rule despite arguments that MERS did not have the authority to assign its interest under the deed of trust without the promissory note. (See Lai v. Quality Loan Service Corp.(C.D. Cal., Aug. 26, 2010, No. CV 10-2308 PSG (PLAx)) 2010 U.S. Dist. Lexis 97121.) Appellants offer no authority, state or federal, to support the legal loophole they claim for defaulting borrowers and their successors. Appellants also argue that respondent was not authorized to substitute Quality as the trustee prior to becoming the beneficiary under the deed of trust. Quality initiated the foreclosure proceedings when it was not the trustee and therefore had no legal right to do so. Under a deed of trust, the trustee may be substituted by a substitution executed and acknowledged by: (A) all of the beneficiaries under the trust deed, or their successors in interest. . .; or (B) the holders of more than 50 percent of the record beneficial interest of a series of notes secured by the same real property or of undivided interests in a note secured by real property equivalent to a series transaction, exclusive of any notes or interests of a licensed real estate broker that is the issuer or servicer of the notes or interests or of any affiliate of that licensed real estate broker. (Civ. Code, 2934a, subd. (a)(1).) (6) We agree with appellants that respondent did not have the authority to execute a substitution of trustee until MERS assigned the deed of trust to it. Thus, Qualitys August 3, 2007 notice of default was defective. Nonetheless, Huynh had more than three months to satisfy his obligation before Quality executed a notice of sale. The substitution of trustee was effective when respondent became the beneficiary under the deed of trust and when the substitution was recorded on November 9, 2007. (Civ. Code, 2934a, subd. (a)(4) ["From the time the substitution is filed for record, the new trustee shall succeed to all the powers, duties, authority, and title granted and delegated to the trustee named in the deed of trust."].) Thus, the notice of sale was valid.Quality then completed the foreclosure in July 2008, long after its substitution as trustee took effect. This situation is distinct from other cases that have voided a nonjudicial
4

foreclosure sale when a party other than the trustee initiated the proceeding and completed the sale without having been substituted in as the trustee. (See Pro Value Properties, Inc. v. Quality Loan Service Corp. (2009) 170 Cal.App.4th 579, 583 [88 Cal.Rptr.3d 381]; see also Dimock v. Emerald Properties, supra, 81 Cal.App.4th at pp. 876-878 [foreclosure sale void where original trustee completed foreclosure sale after being replaced by new trustee].) Appellants offer no authority for the proposition that the defective nature of the initial notice of default corrupted all subsequent steps in the nonjudicial foreclosure proceeding such that the sale was void, not merely voidable. Thus, this ruling seems to leave open a tiny door for situations where the wrong trustee sells the property at foreclosure sale. In those situations, the sale may be VOID with no obligation to tender. So, looking for grounds to challenge the Substitution of Trustee may be one of the few remaining challenges in California to either enjoin or set aside a wrongful foreclosure sale despite courts recognizing the the foreclosure procedure must be valid. The Court cited Tender statute in California: (8) A tender is an offer of performance made with the intent to extinguish the obligation. (Civ. Code, 1485.) It must be unconditional (Civ. Code, 1494) and offer full performance to be valid (Civ. Code, 1486). Civil Code section 1512 provides: If the performance of an obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained if it had been performed by both parties. NOTE: I do not believe the tender rule is a hard and fast rule. You have to look at what your facts are. Some cases have held that a tender may not be required where it would be inequitable to do so. (See Onofrio v. Rice (1997) 55 Cal.App.4th 413, 424; see also Dimock v. Emerald Properties (which was actually cited by the Ferguson court) (2000) 81 Cal.App.4th 868, 876-878 [which held that there was no requirement to tender when the wrong trustee sells the property, in these instances, the sale is VOID, not merely VOIDABLE, and no tender was needed to challenge the VOID sale].) There are other cases that talk about VOID vs. VOIDABLE. However, you need to be aware of the rule, and there will be tender challenges raised in almost every case of wrongful foreclosure so there has to be a strategy, and cases to deal with that. Also, where the Plaintiffs lawsuit challenges the validity of an alleged underlying debt, tender is not required since it would constitute an affirmation of the debt. See Onofrio v. Rice, supra, 55 Cal.App.4th at p. 424. NOTE2: This case also discussed the requirements of a Quiet Title lawsuit in California: (2) Here, appellants sought to quiet title against respondents and set aside the trustee sale at which respondents purchased the property. In order to state a viable cause of action for quiet title, a complaint must include: (a) A description of the property that is the subject of the action. . . . [] (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. . . . [] (c) The adverse claims to the title of the plaintiff against which a determination is sought. [] (d) The date as of which the determination is sought. . . . [] (e) A prayer for the determination of the title of the plaintiff against the adverse claims. (Code Civ. Proc., 761.020.) To bring an action to quiet title a plaintiff must allege he or she has paid any debt owed on the property. Shimpones v. Stickney (1934) 219 Cal. 637, 649 ["[A] mortgagor cannot quiet his title against the mortgagee without paying the debt secured.].) The complaint must also be verified (sworn under oath).

GOMES V. COUNTRYWIDE CALIFORNIA COURT HOLDS MERS HAS THE POWER TO FORECLOSE BECAUSE IT SAYS SO IN THE DEED OF TRUST
4

Citation: GOMES v. COUNTRYWIDE HOME LOANS, INC., 192 Cal.App.4th 1149 (2011), Court of Appeals of California, Fourth District, Division One, February 18, 2011 This is a second blog post dealing with various legal challenges to the MERS registration system and their ability to initiate a foreclosure in California. We previously discussed on our blog the holding in the Fontenot case, which also made it tougher to challenge a wrongful foreclosure sale. In this case, the borrower obtained a loan in 2004 through the lender KB Home Mortgage. In the Deed of Trust, MERS was identified as the nominee for the lender, its successors and assisgns and the Deed of Trust also stated MERS is the beneficiary under this security instrument. This is typical MERS language. When the borrower fell behind on mortgage payments a Notice of Default was recorded by Recontrust Co. on 3/10/09. Prior to the foreclosure sale, Gomes, the Plaintiff, initiated a legal action to try to prevent the sale. The Defendants do what they will normally do file a demurrer and argue the tender rule. They also said the legal challenge was invalid because produce the note may not be used as a legal theory to defend against a non-judicial foreclosure sale. The Court agreed on all counts. The Plaintiff argued MERS had no proof it owned the note, and no proof it had authority from the noteholder to initiate the foreclosure sale. The Court disagreed. In so holding, the Court is basically saying it is not your right to know who is foreclosing on you because you gave MERS authority to do whatever the lender could do when you signed the Deed of Trust. Here is some language from the case:
1. Gomes Has Not Identified a Legal Basis for an Action to Determine Whether MERS Has Authority to Initiate a Foreclosure Proceeding: (1) Californias nonjudicial foreclosure scheme is set forth in Civil Code sections 2924 through 2924k, which provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust. (Moeller v. Lien (1994), 830 [30 Cal.Rptr.2d 777] (Moeller).) These provisions cover every aspect of exercise of the power of sale contained in a deed of trust. (I. E. Associates v. Safeco Title Ins. Co. (1985), 285.) The purposes of this comprehensive scheme are threefold: (1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser. (Moeller, at p. 830.) Because of the exhaustive nature of this scheme, California appellate courts have refused to read any additional requirements into the non-judicial foreclosure statute. (Lane v. Vitek Real Estate Industries Group (E.D.Cal. 2010), 1098; see alsoMoeller, at p. 834 ["It would be inconsistent with the comprehensive and exhaustive statutory scheme regulating nonjudicial foreclosures to incorporate another unrelated cure provision into statutory nonjudicial foreclosure proceedings."].) By asserting a right to bring a court action to determine whether the owner of the Note has authorized its nominee to initiate the foreclosure process, Gomes is attempting to interject the courts into this comprehensive nonjudicial scheme. As Defendants correctly point out, Gomes has identified no legal authority for such a lawsuit. Nothing in the statutory provisions establishing the nonjudicial foreclosure process suggests that such a judicial proceeding is permitted or contemplated.

As we have talked about many times on various blog posts produce the note will not stop a civil foreclosure, but may rear its head as a standing and real party in interest issue in a bankruptcy setting. The Court continued:
Gomes Agreed in the Deed of Trust That MERS Is Authorized to Initiate a Foreclosure Proceeding As an independent ground for affirming the order sustaining the demurrer, we conclude that even if there was a legal basis for an action to determine whether MERS has authority to initiate a foreclosure proceeding, the deed of trustwhich Gomes has attached to his complaint establishes as a factual matter that his claims lack merit. As stated in the deed of trust, Gomes agreed by executing that document that MERS has the authority to initiate a foreclosure. 4

Specifically, Gomes agreed that MERS (as nominee for Lender and lenders successors and assigns) has . . . the right to foreclose and sell the Property. The deed of trust contains no suggestion that the lender or its successors and assigns must provide Gomes with assurance that MERS is authorized to proceed with a foreclosure at the time it is initiated. Gomess agreement that MERS has the authority to foreclose thus precludes him from pursuing a cause of action premised on the allegation that MERS does not have the authority to do so. Relying on the terms of the applicable deeds of trust, courts have rejected similar challenges to MERSs authority to foreclose. In Pantoja v. Countrywide Home Loans, Inc. (N.D.Cal. 2009), the federal district court pointed out that in the deed of trust, the plaintiff distinctly granted MERS the right to foreclose through the power of sale provision, giving MERS the right to conduct the foreclosure process under [Civil Code s]ection 2924, and therefore [s]ince Plaintiff granted MERS the right to foreclose in his contract, his argument that MERS cannot initiate foreclosure proceedings is meritless. (Id. at pp. 1189, 1190.) Similarly, another court pointed out that [u]nder the mortgage contract, MERS has the legal right to foreclose on the debtors property. . . . MERS is the owner and holder of the note as nominee for the lender, and thus MERS can enforce the note on the lenders behalf. (Morgera v. Countrywide Home Loans, Inc. (E.D.Cal., Jan. 12, 2010, No. 2:09-cv-01476-MCE-GGH) 2010 U.S.Dist. Lexis 2037, p. *22, citation omitted.) Following this same approach, we conclude that Gomess first and second causes of action lack merit for the independent reason that by entering into the deed of trust, Gomes agreed that MERS had the authority to initiate a foreclosure.

The only real glimmer of hope from the Gomes case is that the Court discussed the Ohlendorf decision (backdating of the Assignment of Deed of Trust) which was not alleged by the Plaintiff: For instance, in Ohlendorf, the plaintiff alleged wrongful foreclosure on the ground that assignments of the deed of trust had been improperly backdated, and thus the wrong party had initiated the foreclosure process. (Ohlendorf, supra, 2010 U.S.Dist. Lexis 31098 at pp. *22-*23.) No such infirmity is alleged here.

Fontenot v. Wells Fargo Bank, N.A. Court of Appeals of California, First District, Division One (2011). Well we have been talking about wrongful foreclosure, the role of MERS and irregularities in the foreclosure process for years now. The Fontenot case recently decided by the California Court of Appeals offers good language for lenders, servicers and MERS. This case can be seen as another case in the lender foreclosure toolbox, along with the Gomes case, and the Ferguson case. Facts of Fotenot v. Wells Fargo (you can find the full set of facts here if you do not like my condensed version) A homeowner who was in default, and who was promised a modification, (but ultimately was foreclosed on), brought a lawsuit alleging wrongful foreclosure based on irregularities in the chain of title and challenging MERS in various capacities. The trial court upheld the foreclosure, and so did the court of appeal. Specifically, the Plaintiff was challenging the Assignment of Deed of Trust from MERS to HSBC (the trustee of the securitized loan trust). The Assignment of Deed of Trust states (as most do) that the Assignment of Deed of Trust is made together with the notes therein. Plaintiff argued that MERS had no promissory note to transfer and as such, there was no transfer of the note, and a transfer of the ADOT by itself (without the note) was a meaningless act. Case law was cited for this proposition. As such, Plaintiff argued that HSBC never got the note, and was thus not in the position to foreclose on the property. Also, Plaintiff argued this fact made the Substitution of Trustee (in favor of NDEX West, LLC), improp50

er as only the beneficiary can substitute the trustee. If the substitution of trustee was not proper, it appears Plaintiff was arguing that would also invalidate the Notice of Default. At any rate, based upon this, Plaintiff asserted the eventual non-judicial foreclosure sale was invalid and must be set-aside. California Court of Appeal Holding The Court completely disagreed with Plaintiff and essentially stated that the borrower appoints MERS as beneficiary in a nominee capacity in the Deed of Trust. And since the Deed of Trust empowers MERS to take any action the lender can take (when law or custom requires it) that MERS can assign the deed of trust and the notes therein even though MERS itself may hold no note at all. This was based on the concept that MERS can transfer the note on behalf of the lender even if it does not have the note. Which is strange because the note was supposed to be in the HSBC early on in the securitization process. At any rate, the Court found nothing improper in this and said:
Second, the complaint alleges MERS lacked the authority to assign the note because it was merely a nominee of the lender and had no interest in the note. Contrary to plaintiffs claim, the lack of a possessory interest in the note did not necessarily prevent MERS from having the authority to assign the note. While it is true MERS had no power in its own right to assign the note, since it had no interest in the note to assign, MERS did not purport to act for its own interests in assigning the note. Rather, the assignment of deed of trust states that MERS was acting as nominee for the lender, which did possess an assignable interest. A nominee is a person or entity designated to act for another in a limited rolein effect, an agent. (Born v. Koop (1962) 528; Cisco v. Van Lew (1943) 60 Cal.App.2d 575, 583-584.) The extent of MERSs authority as a nominee was defined by its agency agreement with the lender, and whether MERS had the authority to assign the lenders interest in the note must be determined by reference to that agreement. (See, e.g., vant Rood v. County of Santa Clara (2003), 571 [agency typically arises by express agreement]; Anderson v. Badger (1948) 84 Cal.App.2d 736, 743 [existence and extent of agent's duties are determined by the agreement between agent and principal]; Civ. Code, 2315 [agent has such authority as principal confers upon agent].) Accordingly, the allegation that MERS was merely a nominee is insufficient to demonstrate that MERS lacked authority to make a valid assignment of the note on behalf of the original lender. Plaintiff also argues any purported assignment by MERS was invalid under the common law of secured transactions. Her argument rests on the general principle that because the security for a debt is a mere incident of the debt or obligation which it is given to secure (Hayward Lbr. & Inv. Co. v. Naslund(1932) 125 Cal.App. 34, 39), the assignment of an interest in the security for a debt is a nullity in the absence of an assignment of the debt itself. (E.g., Kelley v. Upshaw (1952), 192; 4 Witkin, Summary of Cal. Law (10th ed. 2005) Security Transactions in Real Property, 105, p. 899.) The assignment of the deed of trust, however, expressly stated that MERS assigned its interest in the deed of trust [t]ogether with the note or notes therein described or referred to. Accordingly, to plead a claim on this ground plaintiff was required to allege this assignment to HSBC was invalid. Because, as discussed above, plaintiff failed adequately to plead such invalidity, she failed to state a cause of action for wrongful foreclosure on the ground HSBC did not receive an assignment of both the note and its security. There is a further, overriding basis for rejecting a claim based solely on the alleged invalidity of the MERS assignment. Plaintiffs cause of action ultimately seeks to demonstrate that the nonjudicial foreclosure sale was invalid because HSBC lacked authority to foreclose, never having received a proper assignment of the debt. In order to allege such a claim, it was not enough for plaintiff to allege that MERSs purported assignment of the note in the assignment of deed of trust was ineffective. Instead, plaintiff was required to allege that HSBC did not receive a valid assignment of the debt in any manner. Plaintiff rests her argument on the documents in the public record, but assignments of debt, as opposed to assignments of the security interest incident to the debt, are commonly not recorded. The lender could readily have assigned the promissory note to HSBC in an unrecorded document that was not disclosed to plaintiff. To state a claim, plaintiff was required to allege not only that the purported MERS assignment was invalid, but also that HSBC did not receive an assignment of the debt in any other 51

manner. There is no such allegation.

As you can see, part of the problem may have been insufficient allegations. In addition to this, the Court also discussed a few other potential obstacles to a Plaintiff succeeding in a wrongful foreclosure case in California. Specifically, the court cited to the Ferguson case which held that irregularities in the foreclosure process cannot be made unless the borrower pleads willingness and ability to tender the balance of the loan. We have talked about the tender rule in many other blog posts. To this point the Court stated: We also note a plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate the alleged imperfection in the foreclosure process was prejudicial to the plaintiffs interests. (Melendrez v. D & I Investment, Inc., supra, 127 Cal.App.4th at p. 1258; Knapp v. Doherty, supra, 123 Cal.App.4th at p. 86, fn. 4 ["A nonjudicial foreclosure sale is presumed to have been conducted regularly and fairly; one attacking the sale must overcome this common law presumption `by pleading and proving an improper procedure and the resulting prejudice'"], italics added; Lo v. Jensen (2001), 1097-1098 [collusion resulted in inadequate sale price]; Angell v. Superior Court (1999), 700 [failure to comply with procedural requirements must cause prejudice to plaintiff].) Prejudice is not presumed from mere irregularities in the process. (Meux v. Trezevant (1901) 132 Cal. 487, 490.) Even if MERS lacked authority to transfer the note, it is difficult to conceive how plaintiff was prejudiced by MERSs purported assignment, and there is no allegation to this effect. Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing her obligations under the note. Plaintiff effectively concedes she was in default, and she does not allege that the transfer to HSBC interfered in any manner with her payment of the note (see, e.g., Munger v. Moore (1970) 7-8 [failure by lender to accept timely tender]), nor that the original lender would have refrained from foreclosure under the circumstances presented. If MERS indeed lacked authority to make the assignment, the true victim was not plaintiff but the original lender, which would have suffered the unauthorized loss of a $1 million promissory note. Again, there were no allegations to help the Plaintiff. Which sends a signal to Plaintiffs challenging a wrongful foreclosure BE PREPARED TO EXPLAIN HOW YOU WERE PREJUDICED by irregularities in the process. The Court also went on to discuss what Plaintiff argued was an ambiguity in the Deed of Trust in regard to the function MERS assumes THE COURT DISAGREED: Finally, plaintiff contends the deed of trust was ambiguous because it designated MERS as both the `nominee for the beneficiary and as the beneficiary. An entity cannot be, plaintiff argues, both an agent and a principal. The record does not support the claimed ambiguity. Contrary to plaintiffs assertion, the deed of trust did not designate MERS as both beneficiary of the deed of trust and nominee for the beneficiary; rather, it states that MERS is the beneficiary, acting as a nominee for the lender. There is nothing inconsistent in MERSs being designated both as the beneficiary and as a nominee, i.e., agent, for the lender. The legal implication of the designation is that MERS may exercise the rights and obligations of a beneficiary of the deed of trust, a role ordinarily afforded the lender, but it will exercise those rights and obligations only as an agent for the lender, not for its own interests. Other statements in the deed of trust regarding the role of MERS are consistent with this interpretation, and there is nothing ambiguous or unusual about the legal arrangement. Plaintiffs argument appears to be premised on the unstated assumption that only the owner of the promissory note can be designated as the beneficiary of a deed of trust, but she cites no legal authority to support that premise. The Court also discussed how the beneficiary of a loan is normally the owner of the loan but that MERS could still use the beneficiary designation in the Deed of Trust and act as the beneficiary:

52

Ordinarily, the owner of a promissory note secured by a deed of trust is designated as the beneficiary of the deed of trust. (11 Thompson on Real Property (2d ed. 1998) 94.02(b)(7)(i), p. 346.) Under the MERS System, however, MERS is designated as the beneficiary in deeds of trust, acting as nominee for the lender, and granted the authority to exercise legal rights of the lender. This aspect of the system has come under attack in a number of state and federal decisions across the country, under a variety of legal theories. The decisions have generally, although by no means universally, found that the use of MERS does not invalidate a foreclosure sale that is otherwise substantively and procedurally proper. Interesting is the last section of this sale that is otherwise substantively and procedurally proper. But under what grounds can someone raise a challenge to the substantive or procedure taken? When you do, you face the tender rule which this Court also raised to firm up the opinion (citing the Ferguson case):
A different type of MERS challenge was addressed in Ferguson v. Avelo Mortgage, LLC (2011) (Ferguson ). The Fergusonplaintiffs were tenants in a home sold at a nonjudicial foreclosure sale. Originally, MERS was designated as a nominee and beneficiary in the deed of trust. On August 3, Quality Loan Service Corporation (Quality) recorded a notice of default, although there was no indication in the public record of Qualitys authority to act with respect to the property at the time. The defendant, Avelo Mortgage, LLC (Avelo), had executed a substitution of trustee designating Quality as trustee the prior day, August 2, but that substitution was not recorded until months later, on November 9. Further, at the time Avelo executed the substitution, there was similarly no indication in the public record of its authority to act. Only several weeks later, on August 22, did MERS assign its interest under the deed of trust to Avelo. Notice of the trustees sale was delivered on November 4 and recorded the same day as the substitution of trustee designating Quality, November 9. The trustees sale occurred in July of the following year. (Id. at p. 1621.) Affirming the grant of a demurrer, the court initially addressed the issue of tender, concluding that the plaintiffs were required to allege tender of the amount due under the note when bringing an action to void a nonjudicial foreclosure sale. (Ferguson, supra, 195 Cal.App.4th at p. 1624.) It then turned to two arguments concerning MERSs role: MERS lacked the power to foreclose because it was not the holder of the underlying promissory note, and the sale was invalid because the foreclosing parties did not have authority to proceed as a result of the irregularities in the documentation. Citing a series of federal district court decisions, the court first held that MERS was entitled to initiate foreclosure despite having no ownership interest in the promissory note because it was the beneficiary under the deed of trust. (Id. at pp. 1626-1627.) Turning to the second issue, the court agreed with the plaintiffs that the notice of default was defective because Avelo lacked legal authority to execute a substitution of trustee until it had been assigned MERSs interest under the deed of trust. The court found the notice of sale valid under Civil Code section 2934a, subdivision (b), however, because the notice of sale was not recorded prior to the substitution of trustee. (Ferguson, at p. 1628 & fn. 5.) Given the three-month cure period between the recording of the notice of default and notice of sale and the long delay after the recordation of the substitution of trustee before the sale was concluded, the court declined to invalidate the foreclosure on the basis of the irregular documentation. (Ibid.).

Taking these internal citations at face value, when can the substance or procedure of a foreclosure be challenged? Only if you can tender the full loan balance, and were prejudiced by the recorded documents appears to be this Courts answer. If true, what incentive is there for any lender or loan servicer, or MERS to follow any of the non-judicial foreclosure laws if there is no way to challenge bona fide irregularities that may arise (or can we call it failure to strictly follow the California nonjudicial foreclosure laws)? In other words, how does this holding square up with other holdings in California?

In Miller v. Cote, 179 Cal.Rptr. 753, (Ct of App. Fourth Dist. Div. 2 1982), the Court, in calling the notice of default fatally defective stated: The procedure for foreclosing on security by a trustees sale pursuant to a deed of trust is set forth in Civil Code section 2924, et seq. The statutory requirements must be strictly complied with, and a trustees sale based on a statutorily deficient notice of default is invalid. (System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-153, 98 Cal.Rptr. 735; see California Mortgage and Deed of Trust Practice (Cont.Ed. Bar 1979) s 6.40, p. 295; see also Bisno v. Sax (1959) 175 Cal.App.2d 714, 720, 346 P.2d. At any rate, I understand if you have a borrower in default, with no ability to ever repay the loan, bring it current, etc., and you can never count on a loan modification, but what about those California homeowners who DO have the ability to make their loan payments, but were told to miss their payments if they wanted help in a loan modification, and who were forced into default. If these people want to try to bring their loans current or challenge the foreclosure process they will have a tough time doing so. Of course they can just pay up and bring the loan current, but what happens alot of times is the house is sold when the homeowner is told they are in review. In this case, the house is sold and the tender rule cited in this case can be arguably used against the borrower. This is not far fetched. We get calls all the time from people who were told not to pay and then their house was sold. This case makes it tougher to set these sales aside where irregularities in the sale can be properly alleged. Here, it does not appear the Court was buying the irregularity arguments raised by Plaintiff which focused on the role of MERS. To provide extra emphasis, the Court cited tot he recently decided Gomes case which also validated the role of MERS in that case: In Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App. 4th(Gomes), the plaintiff sought to prevent foreclosure on his home. He sued MERS, among others, alleging he was unaware of the identity of the owner of his promissory note, but believed the owner had not authorized MERS to proceed with the foreclosure. The plaintiff sought to enjoin foreclosure in the absence of proof that MERS was authorized by the notes owner to proceed. (Id. at p. 1152.) The court rejected the claim on both procedural and substantive grounds. With respect to the former, the court concluded the `comprehensive statutory framework regulating nonjudicial foreclosure, Civil Code sections 2924 through 2924k, did not require the agent of a beneficial owner, such as MERS, to demonstrate that it was authorized by the owner before proceeding with foreclosure, at least in the absence of a factual allegation suggesting the agent lacked authority. (Gomes, at pp. 1155-1156.) As the court reasoned, Civil Code section 2924, subdivision (a)(1), which states that a trustee, mortgagee or beneficiary, or an agent of any of them, may initiate foreclosure, does not include a requirement that an agent demonstrate authorization by its principal. (Gomes, at pp. 1155-1156.) The court also found no substantive basis for the challenge, noting, as here, the plaintiff had agreed in the deed of trust that MERS could proceed with foreclosure and nonjudicial sale in the event of a default. Because the deed of trust did not require MERS to provide further assurances of its authorization prior to proceeding with foreclosure, the plaintiff was not entitled to demand such assurances. (Id. at p. 1157.) As you can see, the lender toolbox will have some cases ready for the California homeowner who wishes to challenge a trustee sale on wrongful foreclosure grounds. Fontenot, Gomes, and Ferguson. For more information see our ForeclosureWarrior.com website. California Foreclosure Lawyers Tools, Pleadings, Sample Letter and more to help you fight the good fight! For those who have not heard, we have launched a foreclosure warrior website that aims to give consumers in California information on foreclosure, short sales, litigation and more. The information is gen5

eral information and is in video format to make it easier to enjoy. The foreclosure warrior website also contains valuable documents for California foreclosure, bankruptcy and real estate lawyers. One such document for bankruptcy lawyers is a motion to oppose the lifting of the automatic stay in bankruptcy court. Here is another pleading for warrior lawyers:
California TRO Injunction Package $595 - If you have clients seeking to stop the foreclosure sale of their home, and you have valid legal grounds to file a lawsuit, here are the materials you will need to seek to obtain a TRO (temporary restraining order) and preliminary injunction. Complete with intel from the foreclosure trenches from Attorney Steve Vondran. These tips, insights and sample pleadings will save you alot of time if you have never been through the foreclosure TRO process in California. Certain additional local rules may apply, but this is a good collection of documents to assist you. Here is what you get in this valuable kit: 1. 14 page TRO and Injunction checklist (guide-sheet with tips) 2. Sample Notice of TRO to opposing parties 3. TRO / OSC application (with sample memorandum of points and authorities) 4. Declarations in Support of TRO 4. Proposed Order for TRO / OSC 5. Request for Judicial Notice 6. Lis Pendens Template 7. Withdrawal of Lis Pendens Template 8. Sample Civil Complaint Template

Click here to purchase the bundled TRO and Injunction application package

55