Updated: Apr 21
We are Americans who own our homes. Overwhelmingly we could afford to keep them without any loan forgiveness, in a modified payment schedule or even if the debt-collector had not unbelievably yet willfully rejected and obstructed our payments for no good reason, except for their own incentives to steal homes under color of law by nonjudicial foreclosure.
WE LIVE HERE.
Sadly too many local, state and federal consumer fraud prosecutors reject or simply notate our claims but do nothing, sending us back to the courts. Courts which not all of us can access; and when we do access our own courts we find lawless procedures, rules and standards which are repugnant to our state and federal constitution, giving a "pass" to false claims brought before it, and in contradiction to Reason and the Laws of Nature itself.
What shall be our rightful response?
In California, we could start with the premise that the unconstitutional policies and procedures which summons the California homeowner into Unlawful Detainer court (UD), originally designed for landlords to easily evict tenants, and fundamentally unchanged for us -- FORCE the California homeowner's "real affirmative defenses" into Plaintiff Territory -- because UD is a one-way street headed to eviction. It never does or will reach homeowner's remedy!
HOMEOWNER IS FORCE-TURNED PLAINTIFF when she has been summoned for eviction AS A DEFENDANT in California's unlawful detainer action, so she
IS DEFENDING BY CROSS-COMPLAINT
FORCE-TURNED REGULAR COMPLAINT
because there is
NO OTHER WAY FOR HER TO EFFECTIVELY DEFEND
HER DWELLING AND HOME.
In California, per Yvanova (opinion here)
We DO NOT CONSENT to Rule of Law trampled and made of none effect, which by definition means that Due Process is Denied an injured party homeowner who simply wants to keep her home and who does pay her debts! Payments rejected, obstructed and refused for collection, which is a WRONGDOING, does not give these same obstructionist violators who call themselves "collectors of debt," the right to dispossess us of our home securing that debt we relentlessly attempt to pay!
Maxims of Law:
"No one may profit from his own wrong."
"No rights can arise from a wrong."
Basic logic? Welcome to the rabbit hole known as fraudclosure; where we find out NO PROVEN DEBT-OWNER SEEMS TO EVEN EXIST, NOR DOES AN INJURED PARTY WITH PROVEN STANDING EVER APPEAR INTO THE CASE AS A FACT-WITNESS TO PROVE THEY OWN THE DEBT AND IS THUS THE ACTUAL OWNER AND INJURED PARTY! And people lose their homes in this manner? All too often yes, with a "fair game no foul PASS" given against us, by our own judiciary and other government offices.
We can reasonably assert that this party (for example, "U.S. Bank as trustee ....") is unable to prove it owned the loan account at the time of sale, nor that opposing counsel represents an Injured Party who owned the loan account, and that they must prove standing to make the claim against us homeowners which they cite to justify completion of that trustee sale. This assertion is based on several things – and once raised SHOULD COMPEL Proof of Standing and Injury for the claimant these lawyers say they represent.
Of course, there are other fatal defects we're fighting for the court to conclude the trustee sale itself was void (be that a deliberate obstruction of our reinstatement or redemption and perfect offer to cure the debt, etc.) But ADDITIONALLY, and as a threshold issue actually, when it comes to the standing and proven injury of the claimed loan-debt owner (U.S. Bank as trustee... for example) they can prove no standing nor injury nor ownership of the loan account; nor have they yet to produce a Power-of-Attorney nor documented proof of agency with THAT specific named entity. That leaves only hearsay and failure to prove standing that a real party is even making appearance in the courtroom, let alone demanding the right to auction off our home.
Or can they? OK, “Prove it before this court and public, thank you….. Or you have no injured party client and hence you have no standing to make all your claims here (and never did have that standing!)”
"Your Honor, who is the injured party I owe? I'm here to pay them directly with the court and the public as my witness, and by court-ordered settlement to this traumatizing debilitating dispute. Yes the dispute is not IF but WHO I owe the debt to .... yes of course. Because claimants refuse my payments and relentlessly threaten instead to take our home -- I simply do not consent. But if there is no "who" then we are absent an "injured party" by definition! Is this court ordering I pay "the world at large?! Absent any proof of standing nor injury for person or institution my debt is OWED TO? Or lose my home to this same entity making claim, yet who refuse to produce proof of neither injury nor standing before this court? Really?"
And of course per Sciarratta, a sale conducted in favor of an entity who didn't own the debt or loan and based on a void assignment naming that entity as assignee, results in a void trustee sale -- Trustee's Deed Upon Sale (TDUS) expunged, homeowner's name restored on title, and a just and lawful settlement ends that case.
We can insist these lawyers PROVE their so-called client IS an injured party due to actions causing injury to them or a failure to act when the law demanded it, attributed to us the homeowner. When they sue us in Unlawful Detainer (UD) eviction court they are saying exactly that -- that we are the named defendant because WE injured the plaintiff, according to their claims in the UD complaint.
Even though UD plaintiff has the troublesome fact that THEY bid on our homes by their own choice and act of will, OFTEN WARNED BY THE HOMEOWNER WHO ATTENDED HER AUCTION, speaking verbally serious legal problems exist and that title is in legal dispute. That plaintiff almost always had ample constructive and even actual notice forewarning them BEFORE they took their LIEN INTEREST at the auction -- making them FAIL the "bona fide purchaser" litmus test. But they bid freely and won it, only to later claim the homeowner damaged them simply by remaining housed as she seeks Due Process of Law. This design and structure is neither judicious nor honorable.
Hear hear! ----> JUDGES' BENCH GUIDE for California Unlawful Detainer, an official publication of the Supreme Court of CA Judicial Council, who sets policy and procedure guidelines for statewide conformity for how certain matters are adjudicated in the lower courts in California . Full 2015 edition here:
Noteworthy excerpts here, including an ADMISSION IN THE PUBLISHED GUIDE from the Cal Supreme Court justices, recited here publicly directed to the UD benches statewide, that per binding case law in Asuncion v Superior Court (1980), and more: "eviction of homeowners following foreclosure raises due process issues and cannot be heard as part of summary unlawful detainer proceeding."
In this guide to the UD bench then, the same Supreme Court of California justices who sit on our Judicial Council as policy-makers for judicial uniformity, and who ruled in YVANOVA (above) that homeowner owes only a particular and identifiable entity and not just anyone who shows up waving unscrutinized papers like a bounty-hunter for an unproven owner; but rather a true injured party in fact, with "standing under applicable governing law," who thereby is the only entity who would have been authorized to conduct the foreclosure sale (through their proven agents) and subsequently BE PAID THE PROCEEDS FROM THE AUCTION --- here our Judicial Council citing BINDING CASE LAW, instructs ALL judges in California unlawful detainer courts, that the homeowner who objects and defends against the UD complaint DOES HAVE certain complex TITLE issues in dispute -- she is not a tenant -- such that the "quick-rubber-stamp" summary proceeding of a landlord-tenant eviction dispute doesn't apply to us homeowners because it denies us Due Process. Our Judicial Council is CORRECT. Who shall heed?
The necessity of trial is inferred for the homeowner-defendant summoned into UD court, in keeping with BINDING CASE LAW and published authorized judicial policy in California!
We are reasonable people: we California homeowners do not understand this rampant and rogue denial of our Due Process rights by our own county courthouses -- ruling summarily for evicting us their constituents, while denying us trial and trial by jury and barring well-reasoned courtroom debate and relevant discovery for us homeowners summoned into UD? What happened in my country?
Why are we forced to slash and sword-fight the entire uphill climb in UD defense even on Appeal, just to insist on having trial instead of suffer wrongful eviction by our own armed sheriffs without one?! When the rules and case law also dictate that "when material issues of fact are in dispute, trial is in order, and that our dispute CANNOT BE LAWFULLY DECIDED IN A "SUMMARY PROCEEDING" precisely because such is not "Due Process" which the law commands. This is the great American heartbreak in California.
How many of the general public and even homeowners or their attorneys in UD court even realize yet another fundamental flaw? Which is that homeowners are summoned and sued by that UD plaintiff according to merely a SET OF PROCEDURES NOT AN ACTUAL "CAUSE OF ACTION." The UD complaint says the homeowner damaged the plaintiff, but the suit is brought against her pursuant to California Code of Civil Procedure 1161a(b)(3) WHICH IS MERELY A SET OF PROCEDURES FOR EVICTING OCCUPANTS FROM REAL PROPERTY, and a "SUMMARY PROCEEDING." It is quick, skimmed over, woefully incomplete, and usually very mean with grave untruths about the homeowner's standing as well as her character. Due Process which is Rule of Law found severely lacking.
The plaintiff thereby essentially admits by bringing complaint citing pursuant to ONLY "CCP 1161a" (sub-paragraph (b)(3) to be exact), that they're bringing suit to strip possession of the homeowner's dwelling and house from her BY WAY OF THE COURT ORDERING A MERE "SET OF PROCEDURES" in CCP 1161a(b)(3) be executed by armed Sheriff deputies, because ...... a set of procedures cited on the complaint for eviction should be sufficient to win that court order to evict!
What happened to proving the facts and applying governing law FIRST, as the basis to then carry out those1161a(b)(3) procedures? Oh, but UD presumes at the start that the homeowner's OCCUPANCY STATUS LEGALLY, IS MERELY THAT OF A TENANT just because the nonjudicial trustee sale (foreclosure auction) completed, and the document commemorating its completion was recorded at the county - unscrutinized as to its "recitals" but duly recorded in the public record.
This summary proceeding doesn't hear or try the defendant-homeowners' set of "counterclaims," and its rare if at all that a trial by jury is granted. Oh, a very narrow set of "affirmative defenses" are in homeowner's reach but none of the "allowable defenses" ever defeat against the inevitable eviction order when UD is our only tribunal! And contrary to any other "regular defendant's rights" in the Unlimited Classification Case of our county courthouses, a defendant's Cross Complaint" IS NOT ALLOWED IN UD. AND it's a summary proceeding brought under only CCP 1161a(b)(3). The defendant-homeowner just has to deal with it.
Translation by the plunder party: "These homeowners are clueless: this set of procedures IS my cause of action. The trustee's deed is right here, recorded. We are here under CCP 1161a(b)(3) -- clearly! The boundary of the case is simple and well-defined! Eviction is in order and pronto -- it's costing my client huge money every single day they occupy the property. Plus look, after all, the homeowner didn't prevent the sale - she let it go all the way to the trustee's deed recordation, and none of that is our problem --- its a done deal. A deal done this way for decades....
All the presumptions should be taken at face value, that's how this rolls and has rolled for decades now people -- that homeowner LOST TITLE ALREADY -- the proof of that glorious lucrative fact is .... TA DA! This lovely document has been recorded by the Clerk of the County, our coveted Trustee's Deed Upon Sale. No need to scrutinize the document, it's a self-authenticating document by inference! The facts before the court as set for in the complaint are sufficient to win our court order to evict. This is California unlawful detainer court after all. "
What does that mean for Main Street?
The real world for homeowners in California tells what REALLY happens on Main Street.
Meanwhile UD can see to it perfectly that STRICTLY pursuant only to the sole "cause of action" on the complaint before the "court," i.e. that CCP 1161a(b)(3) set of procedures should be carried out against homeowner who should be evicted from her home she "formerly owned" because there's no eyes or ears to see or hear much of anything else in that UD case. If that's not a blow to the gut delivered in our own county courthouses, what is; says we the California homeowner.
And so it takes an unspeakable fortitude and sacrifice to face that unfair fight, ELEVATE the discourse and dispute up to a REGULAR UNLIMITED CLASSIFICATION CASE in the "upper division" of the same County Superior Court, for which the ticket of entry must be stamped "plaintiff," IN ORDER TO DEFEND HER RIGHT TO DUE PROCESS BEFORE DISPOSSESSION OF HER OWNER-OCCUPIED RESIDENCE DWELLING PROPERTY. Since UD procedures under current structure couldn't see or hear that far afield. And UD doesn't hear or see or try an entire set of pre- and post-sale statutes known as California Homeowners' Bill of Rights.
How many on Main Street successfully file a new complaint, argue it, follow all the procedures of the law society or hire a competent, experienced and honorable attorney in California and ELEVATE that UD nightmare out of this pit of doom? Too small a percentage of homeowners who surmount huge odds, when ALL of us are endowed with God-given Unalienable Rights by Supreme Law: our Constitution. This wrong is yet without full remedy.
WE APPLAUD OUR Supreme Court of the United States:
Commentary by attorney and blogger Neil Garfield on Transunion case 2021:
Concrete Injury in Fact: Spokeo, Inc. v. Robins, 578 U.S. (2016)
Concrete and Imminent Injury: Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
TIDE IS TURNING:
MORE STATE SUPREME COURTS REQUIRE PROOF OF
"STANDING," "INJURY IN FACT," AND "JURISDICTION"
in foreclosure cases
Connecticut Supreme Court in 2021 "slams Bank of NY Mellon in Favor of Homeowners"
Vermont Supreme Court rules that Article 9 of the Uniform Commercial Code (UCC) is still the law; and Claimant must have Paid for Value (own the debt, prove concrete injury), and therefore the Loan Account is ACTUAL NOT MERELY PRESUMED.
And of course California Supreme Court ruled in 2016 in Yvanova v. New Century that our "promissory notes are negotiable instruments" (invoking Negotiable Instrument Law in UCC Article 3, which points to UCC Article 9 when that note is secured by collateral property such as our homes).
Back to California's post-foreclosure sale "unlawful detainer court," retired attorney and researcher Robert M. Janes who has studied more than 10,000 California Appellate decisions on foreclosure issues (yes 10,000), has rightly concluded that the California's UD court bench SHOULD simply "reclassify the limited case to an unlimited case when a homeowner - not a tenant - is the defendant in that eviction procedure," thus REMOVING the UD case to the regular Superior Court unlimited division, which would then avail the homeowner of access to her potential remedy, i.e. she can file a Cross Complaint under cross complaint rules and add ADDITIONAL COUNTER-DEFENDANTS such as those pre-foreclosure entities and their lawyers who conducted the foreclosure sale wrongfully...... BUT alas, UD benches are simply denying such a Motion to Reclassify,repeatedly, in several counties throughout the State where it has been tried.
[click image for audio lecture on "the foreclosure machine."]
A rogue administrative process disguised as a court of law doesn't reclassify itself and admit every other homeowner-defendant it has ever seen in its chambers actually didn't belong there and their prior orders were all void .... Bob Janes is correct to a T as he always is on these matters! But the answer from the UD Bench is "motion to reclassify denied." The California Unlawful Detainer procedure for the homeowner-defendant has gone rogue, allowing her to be summoned into the wrong classification of the court system, which lacks subject matter jurisdiction over a homeowner's actual damages and HER remedy therefrom, because UD never REACHES the homeowner's potential remedy.
Furthermore, an "appeal" of our UD summary judgement to evict us the homeowner goes only up to a "limited classification appellate panel" of the same court, and NOT up to California District Court of Appeals! No, that's too good for us: only for "UN-limited regular classification" of cases, wherein we are denied access when our "Janes' motion to reclassify" is flatly denied in UD. Finally, our UD appeal pretty much ends there in this "limited case process." But then again, where would the case remand back to anyway? The same UD tribunal, still unable to reach homeowner remedy! No further appeal shall be taken, and this one-way street dumps onto brick wall. [CA statute linked, CCP 904.3]
So that's why we ARE FORCED by the current "rules" to sue as plaintiff for wrongful foreclosure in a regular unlimited classification case in California, in order to DEFEND OUR HOME AND DWELLING HABITATION --- and it is in that case where we most definitely have the right to challenge whether the opposing counsel's claim that "their client" (U.S. Bank as trustee...) was injured by the Homeowner's nonpayment on their loan -- which almost always (also in this homeowner's fact timeline) was DELIBERATELY UNLAWFULLY OBSTRUCTED by mortgage-servicing entities and their lawyers), AND WE SHOULD COMPEL PROOF OF INJURY AND PROOF OF OWNERSHIP OF THE DEBT for "their client." We are plaintiff, and we can certainly prove our injury hence our standing.
It should be argued that the unconstitutional policies and procedures which summons the California homeowner into Unlawful Detainer court FORCE our "real affirmative defenses" into Plaintiff Territory -- because UD is a one-way street headed to eviction. It never does or will reach homeowner's remedy.
Therefore, our wrongful foreclosure action we bring while simultaneously
defending possession of our home as the named defendant in the eviction case, simply insists on our constitutional unalienable right to Due Process of Law, so the regular unlimited action should compel trial and discovery and never be dismissed: WE ARE DEFENDING.
How else can homeowner's affirmative defenses be
heard, tried, adjudicated and decided
according to WHAT IS RIGHT, TRUE AND CORRECT?
How is rightful and lawful defined in the United States of America?
By Rule of Law and actual Due Process that measures up to
this nation's Supreme Law, i.e. the federal constitution.
We consent to nothing less.
It follows then that any demurrer by those defendants should be automatically denied and disallowed in a post-foreclosure wrongful foreclosure action
after HOMEOWNER IS FORCE-TURNED PLAINTIFF when she has been summoned for eviction AS A DEFENDANT in California's unlawful detainer action, so she
IS DEFENDING BY CROSS-COMPLAINT
FORCE-TURNED REGULAR COMPLAINT
because there is
NO OTHER WAY FOR HER TO EFFECTIVELY DEFEND
HER DWELLING AND HOME."
Clearly then a consolidation of the two cases must be granted as a matter of
Law of Due Process: Homeowner is Persona Standi In Judicio,
with a right to defend when sued in eviction court.
California unlawful detainer DOES NOT ALLOW CROSS COMPLAINTS.
INJUNCTION barring any eviction and dispossession of the home itself
must be granted in the higher court,
just as homeowner's Cross Complaint in defense
becomes the OPERATIVE COMPLAINT before the court
in a regular unlimited case, to be so adjudicated.
TRIAL BY JURY shall not be infringed, as our right by law,
even Supreme Law of the Land
unto a final lawful disposition by the higher court; and if necessary up on appeal,
while UD is enjoined from taking another irreparably damaging step forward.
Forced to defend as plaintiff then, when we sue into California's unlimited classification and "regular division" of our Superior Court for wrongful foreclosure, both parties and their lawyers are compelled by law and rules of court to prove they aren't making a false claim on behalf of a non-client and a non-injured party who may not even exist let alone who owned the debt at the time of sale. Back in "UD court" several unproven and actually false claims which contradict the very admissions on documents used to foreclose and seek eviction against us, are PRESUMED TRUE ON THEIR FACES by the bench, before the case even starts.
And the reality is ONLY outside of the UD process can those rebuttable presumptions which are false, ever hope to be defeated. IN DEFENSE THEN, we homeowners are forced to become plaintiffs for any hope at Due Process. Many homeowners can't pull this off for many reasons -- they thereby lose their home and dwelling, hit with financial and material ruination and homelessness, by an unconstitutional process we could aptly name, as did Frederic Bastiat, "Legalized Plunder."
Ultimately and without question, we live in a constitutional republic in which our federal constitution is the supreme law of the land -- and it states that we have an unalienable (God-given, not government created) right to DUE PROCESS before dispossession of property. That means that RULE OF LAW is applied and adjudicated before we are dispossessed of property. We all know UD courts, defined in California as "limited classification" cases on par with traffic tickets and small claims court, are unconstitutional against a California homeowner, as the procedure is a denial of due process before dispossession of property WE OWN, by its very rules and structure! Presuming at the gate that the trustee's deed document recorded at our county recorders' offices, with whatever unscrutinized statements scrawled thereon, already stripped us of title ownership of our house, when it has not, by law.
That trustee's deed upon sale document (TDUS) has only rebuttable presumptions on its face, and even our deed of trust document admits (at our signing) that the "recitals" on the TDUS are merely "prima facie evidence," which admits every word on its face is subject to rebuttal, and if subject to Due Process and Rule of Law, might be found wholly NOT "conclusive" because its statements are actually false and incorrect, and anyone claiming its statements are "conclusive evidence" of fact, has brought fraud upon the court.
California unlawful detainer (UD) court was originally designed to STREAMLINE EVICTIONS of OCCUPIED DWELLINGS, so "UD" statutes and procedures were originally created ONLY FOR LANDLORD-TENANT RENTAL PROPERTY EVICTIONS. But through special interests urgings, the statutes morphed in 1929 to add mortgage foreclosures for easy eviction of property owners, not mere tenants of rental property. It has been a severe unconstitutional MIS-FIT ever since. Run On Bank,Great Depression 1931 Photo by Daniel Hagerman
UD court is not Due Process for the California homeowner.
Another glaring example: the publicly recorded Notice of Trustee Sale, found in the same county clerk's office coupled with California statutes CIV 2924f(b)(8)A and CIV 2888 --- broadcast and admit in black and white on their faces, that only a "LIEN INTEREST" and "NOT TITLE" passed hands at the foreclosure auction, and furthermore these explicitly state that the winning bidder does not necessarily take title or ownership to the property itself simply by being the winning bidder: "LIEN" DOES NOT EQUAL "TITLE" by definition of law.
A mere "lien" is subject to scrutiny by any "court of law,"
it must be proven, not simply presumed true, especially if a family's home may be lost!
Is the UD plaintiff's lien claim valid and correct?
and IF so, how does their MERE LIEN automatically result in TITLE & OWNERSHIP?
EXAMPLE: If a building contractor files a mechanic's LIEN on an owner's property,
he makes a claim that may OR MAY NOT BE completely correct or valid.
The builder's lien is subject to scrutiny if property owner contests some part or all of it,
AND YET HIS "LIEN" NEVER AUTOMATICALLY TRANSFORMS ITSELF INTO TITLE AND OWNERSHIP TO THE ENTIRE HOUSE OR BUILDING - while he evicts the owner!
ONCE A LIEN, ALWAYS A LIEN
except in California's UD court against homeowners,
by which the mere "lien," publicly recorded and duly noticed for the world to see,
magically transforms itself into title ownership to the UD Plaintiff!?
and our own county courts see their county resident constituent homeowner
as a mere "FORMER HOMEOWNER" who already lost title to her home.
A LIEN IS NOT TITLE
the UD Plaintiff's attorney seeking to evict the homeowner and her family comes into court complaining that his or her client "owns the property," because they "won the bid at auction, recorded the trustee's deed, and thereby holds clear title to the house," seeking from the UD bench a fast and easy
writ of eviction for armed sheriffs of her own county to execute against her,
to take possession and evict this "former homeowner."
Rarely if ever does this tribunal allow trial by jury, instead it is designed at the start to be a "summary proceeding." (This will hurt everyone a lot, get it over with quickly?)
The UD plaintiff's case rarely if ever is dismissed, and always without prejudice, for the rare technical reason -- thus it is the recurring nightmare from hell for the homeowner --
she becomes FORCED-PLAINTIFF ... if she can muster that much energy, time and money!
It appears clear the UD Bench is instructed to reach these viewpoints as correct at start.
But it can't reach far enough or wide enough to consider homeowner's evidence
which would fatally contradict and defeat
the plaintiff's unscrutinized and non-adjudicated claims.
If that sounds like an unfair fight .....
We can prove that California's nonjudicial trustee sale foreclosure procedures and the gravely injurious "unlawful detainer limited case administrative proceedings" brought against the California homeowner are neither legal nor lawful,
violating applicable governing law, and the Supreme Law of the Land.
Maxims of Law:
"No wrong should suffer for want of a remedy"
"No rights can arise from a wrong."
In our complaint we defend as plaintiff by necessity, and the defendants named are coming into court attempting to defend their claims, so they must do so REFRAINING FROM COMMITTING FRAUD UPON THE COURT in defense. Those are the rules imposed on any party and any lawyer, whether plaintiff or defendant!
"Fraud Upon the Court" should MEAN something --
it’s up to us who are the victims of that fraud to raise it.
The above letter to my colleagues and friends doesn't specifically address the role of our government officials such as our legislative bodies at the state and local level, nor office of the governor, neither executive branch law enforcement public servants such as county prosecutors and sheriff departments, who must be apprised of the facts we face, so that they can determine their proper role in upholding the federal and state constitutions, on behalf of their constituents in the face of irreparable and imminent harm that threatens their constituents' well-being and rights by law.
Neither does this post address the many non-elected agencies and bureaucrats in California and at the federal wielding their will upon We the People, through administrative procedures disguised as courts, affecting property rights such as ours. The latter too is a topic too large for this post.
The above is a commentary in response to recent post by attorney and blogger Neil Garfield, titled “The Case for Discipline of Attorney Who Present False Claims in Support of Foreclosure" and his main website home page here: https://livinglies.me