144098619 California Homeowner Bill of Rights Sample Letter I Send Under California Civil Code 2923...

Copyright 2013 – The Law Offices of Steven C. Vondran, P.C. (All rights reserved)

1

ATTORNEY STEVE – SAMPLE “PRODUCE THE NOTE” LETTER PURSUANT TO CALIFORNIA HOMEOWNER BILL OF RIGHTS (CAL. CIVIL CODE

SECTION 2923.55)

Vondeezy Law Made Easy (AttorneySteve.net) / (877) 276-5084 San Diego / Newport Beach / Beverly Hills / San Francisco / Phoenix

NOTICE/DISCLAIMER

THIS IS A SAMPLE LETTER PROVIDED FOR REFERENCE PURPOSES ONLY. THIS IS NOT LEGAL ADVICE. THIS IS A LETTER I DRAFTED DEMANDING THAT THE LENDER/LOAN SERVICER “PRODUCE THE NOTE” OR “OTHER EVIDENCE OF INDEBTEDNESS” UNDER THE CALIFORNIA HOMEOWNER BILL OF RIGHTS. I SEND THIS LETTER TO THE LENDER, LOAN SERVICER, SECURITIZED LOAN TRUSTEE, FORECLOSURE TRUSTEE AND ANYONE ELSE THAT CLAIMS AN INTEREST IN YOUR MORTGAGE LOAN AND FEELS THEY HAVE THE LEGAL RIGHT TO COLLECT YOUR MORTGAGE PAYMENT. CALL US AT THE NUMBER ABOVE TO HAVE OUR FIRM SEND A COPY OUT ON YOUR BEHALF. WE SEND THE LETTER CERTIFIED MAIL SO IT CAN BE TRACKED. IF YOU ARE WONDERING WHAT THE CALIFORNIA HOMEOWNER BILL OF RIGHTS IS, YOU CAN READ MY BLOG THAT PROVIDES GENERAL LEGAL INFORMATION ON THE TOPIC OF OVERVIEW OF THE CALIFORNIA HOMEOWNER BILL OR RIGHTS. THIS IS GENERAL INFORMATION. CALIFORNIA HOMEOWNERS HAVE VALUABLE NEW LEGAL RIGHTS (THAT CAN BE USED IN CONJUNCTION WITH A QUALIFIED WRITTEN REQUEST, REQUEST FOR BENEFICIARY STATEMENT AND DEMAND TO IDENTIFY THE LOAN HOLDER UNDER TRUTH IN LENDING LAW 15 U.S.C. 1641). THE “LENDERS” AND LOAN SERVICERS ARE NOW LEGALLY OBLIGATED TO STOP THE ROBOSIGNING AND THE BOGUS ASSIGNMENTS OF DEED OF TRUST AND PROVIDE PROOF OF THE POWER OF SALE (AND SIMILAR NONSENSE IN THE BANKRUPTCY COURTS IN REGARD TO PROOF OF CLAIMS AND LIFTING THE AUTOMATIC STAY), AND ONLY THE TRUE LENDER (OR THEIR AGENT) SHOULD BE ALLOWED TO FORCE YOU INTO A PRIVATE NON-JUDICIAL


2

FORECLOSURE SALE AND SELL YOUR PROPERTY, OR LIFT THE AUTOMATIC STAY IN A BANKRUPTCY COURT. IF THEY CANNOT PROVE THEIR LEGAL RIGHT TO FORECLOSE (WHAT SOME PEOPLE CALL “STANDING”) AND THAT THEY ARE THE TRUE LENDER (OR THE TRUE LENDER’S AGENT), AND THAT YOU OWE THE DEBT TO THEM YOU MAY HAVE LEGAL RIGHTS TO STOP THEM WITH AN INJUNCTION AND THE RIGHT TO SEEK YOUR ATTORNEY FEES. WE HAVE BEEN TALKING ABOUT THIS PHENOMENA FOR YEARS, AND THIS IS A NEW REAL ESTATE DEVELOPMENT THAT BECAME EFFECTIVE JANUARY 2013. AS SUCH, THIS IS A NEW AREA OF REAL ESTATE FORECLOSURE LAW AND EXPERTS EXPECT THAT THIS LAW WILL BE TESTED AS TO WHAT IT ACTUALLY MEANS (I.E. WHETHER OR NOT THE LENDER OR LOAN SERVICER MUST PROVE YOU LEGALLY OWE MORTGAGE PAYMENTS TO THEM OR WHETHER THEY JUST HAVE TO PROVE YOU HAVE A MORTGAGE LOAN AS EVIDENCED BY AN OLD PROMISSORY NOTE YOU SIGNED YEARS AGO TO A NORMALLY DEFUNCT LENDER). THIS IS NOT TO SUGGEST YOU WILL GET A HOUSE FREE AND CLEAR AS SOME PEOPLE LIKE TO THINK, BUT IF THE LAW IS VIOLATED YOU HAVE A PRIVATE RIGHT TO SUE FOR AN INJUNCTION AND SEEK ATTORNEY FEES. THIS CAN BE A VERY IMPORTANT RIGHT, FOR EXAMPLE, WHEN TRYING TO REINSTATE YOUR LOAN (WHICH LATELY SEEMS TO OCCUR AFTER YOU WERE TOLD BY THE LOAN SERVICER NOT TO MAKE LOAN PAYMENTS AND THE PROMISED LOAN MODIFICATION NEVER HAPPENED. WHERE YOU BELIEVE YOUR LEGAL RIGHTS ARE VIOLATED, OR NEED US TO SEND OUR LETTERS ON YOUR BEHALF, OR TO SEEK AN INJUNCTION TO STOP AN ILLEGAL FORECLOSURE SALE OR MONEY DAMAGES FOR A WRONGFUL FORECLOSURE SALE CALL US AT (877) 276-5084. WE ARE HERE TO HELP YOU UNDERSTAND AND ASSERT YOUR LEGAL RIGHTS. WE ALSO SELL VARIOUS LETTERS (TO ATTORNEYS AND HOMEOWNERS) ON OUR FORECLOSURE WARRIOR WEBSITE AND HAVE FREE INFORMATION THAT WE HAVE CREATED OVER THE YEARS AT OUR FORECLOSURE DEFENSE RESOURCE CENTER WEBSITE. PLEASE NOTE, WE DO NOT ACCEPT ALL FORECLOSURE, WRONGFUL FORECLOSURE AND INJUNCTION CASES. EVERY CASE MUST MEET CERTAIN CRTIERIA AND EACH IS VIEWED ON A CASE-BY-CASE BASIS. AS WE ALWAYS TELL PEOPLE, IF YOU THINK YOU HAVE ISSUES, RETAIN AN ATTORNEY BEFORE THE PRIVATE TRUSTEE SALE. AFTER THE SALE, AND AFTER A TRUSTEE’S DEED UPON SALE IS RECORDED YOU MAY LOSE SIGNIFICANT LEGAL RIGHTS.


3

THIS IS THE FIRST LETTER I SEND UNDER THE CALIFORNIA HOMEOWNER BILL OF RIGHTS. UNDER THE LAW YOU CAN SEEK REDRESS FOR “MATERIAL” VIOLATIONS, NOT MINOR ONES. THIS IS A QUESTION OF INTERPRETATION RIGHT NOW. IN SOME CIRCUMSTANCES, I WOULD SEND A SECOND LETTER (BASICALLY A “MEET AND CONFER” LETTER DEMANDING THAT THEY CURE VIOLATIONS OR PROVE CERTAIN THINGS). TIMING MIGHT BE AN ISSUE FOR SOME PEOPLE SO HAVE YOUR CASE REVIEWED BY A REAL ESTATE LAWYER LIKE MYSELF. IF SUFFICIENT EVIDENCE OF INDEBTEDNESS IS NOT PROVIDED, OR IF THEY FAIL TO PRODUCE THE ENDORSED NOTE SHOWING THEY ARE LEGALLY ENTITLED TO PROCEED WITH A NON-JUDICIAL FORECLOSURE SALE (PETE) AGAINST YOU (WHICH I CAN ALMOST ASSURE YOU THEY DO NOT HAVE THE ENDORSED NOTE, AND WILL PROBABLY NOT BE ABLE TO PRODUCE IT), THEN THIS MIGHT BE DEEMED A “MATERIAL” VIOLATION WHICH MIGHT WARRANT AN INJUNCTION AND ATTORNEY FEES. AGAIN, NEW AREA OF LAW OPEN TO INTERPRETATION. WE HOPE YOU ENJOY VIEWING OUR SAMPLE LETTER. STEVEN C. VONDRAN, ESQ. (CA LIC. #232337) (AZ LIC. #025911) CALL US: (877) 276-5084 AttorneySteve.net ForeclosureDefenseResourceCenter ForeclosureWarrior This is an advertisement and communication under state bar rules.


4

THIS IS A SAMPLE LETTER AND NOT LEGAL ADVICE.

May ___, 2013

Lender XXXXXXXX. (ex. Wells Fargo, JP Morgan Chase, Bank of America, Citimortgage, Ally) Attention: Customer Service Loan Servicer XXXXXXXX. (ex. Wells Fargo, JP Morgan Chase, Bank of America, Citimortgage, Aurora, Homecomings Financial, GMAC, Litton, OneWest Bank, Nationstar, Ocwen, Select Portfolio Servicing) Attention: Customer Service Foreclosure Trustee XXXXXXXX. (ex. Cal-Western Recovneyance; NDEX; Recontrust etc.) Attention: Legal Department Securitized Loan Trustee (check on your Notice of Default or Notice of Sale or other correspondence, you will usually see “on behalf of Harborview loan trust” for example) (ex. Deutsche, U.S. Bank, Bank of New York Mellon, etc.) Attention: Legal Department VIA CERTIFIED MAIL RE: DEMAND TO PRODUCE THE NOTE AND/OR OTHER COMPETENT EVIDENCE OF INDEBTEDNESS, PROOF OF LEGAL RIGHT TO FORECLOSE, AND OTHER DOCUMENTS SPECIFIED BELOW UNDER CALIFORNIA CIVIL CODE SECTION 2923.55. DEMAND FOR IMMEDIATE WRITTEN RESPONSE. THIS IS A LEGAL REQUEST THAT YOU ARE REQUIRED BY LAW TO COMPLY WITH. YOU HAVE THE LEGAL OBLIGATION TO IMMEDIATELY FORWARD THIS DEMAND LETTER TO THE APPROPRIATE PERSON OR DEPARTMENT TO HANDLE THIS REQUEST. A TIMELY RESPONSE IS REQUIRED. FAILURE TO COMPLY WITH THIS REQUEST COULD RESULT IN LEGAL LIABILITY AND SEEKING AN INJUNCTION TO STOP FORECLOSURE AND ATTORNEY FEES.


5

To whom it may concern:

My name is XXXXXXXXXXX and I represent Mr. and Mrs. XXXXX whose real property is located at XXXXX, CALIFORNIA, 92886. A.P.N. #: 123-456-78. Trustee Sale #: 12-11111. The Acct #: is XXXXX (as set forth in the attached monthly mortgage statement – Exhibit “A”). MERS Min # (off deed of trust) is 1111122222333444. Purported Beneficiary: XXXXXXXXXXXXX. Loan Servicer: XXXXXX.

As you may know, the State of California recently signed into law a new measure

that gives homeowners certain legal rights in the foreclosure process. Of relevance to this letter is California Civil Code Section 2923.55. Under this code section, you are required to produce each of the following to the borrower:

REQUESTED INFORMATION

(i) A copy of the borrower's promissory note or other evidence of indebtedness. (ii) A copy of the borrower's deed of trust or mortgage. (iii) A copy of any assignment, if applicable, of the borrower's mortgage or deed of trust required to demonstrate the right of the mortgage servicer to foreclose. (iv) A copy of the borrower's payment history since the borrower was last less than 60 days past due.

Pursuant to the newly enacted law I hereby demand you provide me with a

neat, legible, and complete copy of each of the foregoing requested items.

It should be noted that when the state of California passed the foreclosure bill of rights (AB 278/SB 900), the intent of the legislature was to conform to the reform principles contained in the National Mortgage Servicing Settlement and to reform what has previously been a horrific non-judicial foreclosure process in California. The new law, signed by Governor Brown, and duly sponsored by Attorney General Kamala Harris along with the support, advice and leadership of both the California Senate and Assembly, is also designed to bring sanity to the foreclosure crisis in California, which is financially injuring not only homeowners, but also state and local governments.

As such, you are required and hereby demanded to provide legally sufficient evidence of your right to foreclose on the above-referenced real property. California courts, as well as courts across the nation, have made clear the legal requirements to prove the legal right to enforce a promissory note. In short, you must have in your possession, the original endorsed note, made payable to you, or to bearer, with properly attached allonges that may be applicable.


6

Nothing short of documentable proof of possession of the original endorsed note

will suffice under the California homeowner bill of rights. California Courts understand perfectly well what entails sufficient evidence of the right to foreclose (i.e. “standing” to foreclose on real property):

In the case of In re Veal, BAP# AZ-10-1055 (9th Cir. BAP – June 10, 2011), the Appellate Court made clear that in order to establish standing for a motion for relief from the automatic stay in a bankruptcy court, the moving party must make a colorable claim to the right to receive payment pursuant to the mortgage note. In overruling the trial court’s grant of relief from stay to moving party Wells Fargo, the Court held:

“As a result, to show a colorable claim against the Property, Wells Fargo had to show that it had some interest in the Note, either as a holder, as some other “person entitled to enforce,” or that it was someone who held some ownership or other interest in the Note. See In re Hwang, 438 B.R. 661, 665 (C.D. Cal. 2010) (finding that holder of note has real party in interest status). None of the exhibits attached to Wells Fargo’s papers, however, establish its status as the holder, as a “person entitled to enforce,” or as an entity with any ownership or other interest in the Note.”

Other courts have noted what constitutes the “person entitled to enforce” the note

(hereinafter “PETE”) and reference should be made to the California commercial code sec 3301: "Person entitled to enforce" an instrument means:

(a) the holder of the instrument;

(b) a nonholder in possession of the instrument who has the rights of a holder,

(c) a person not in possession of the instrument who is entitled to enforce the

instrument pursuant to Section 3309 or subdivision (d) of Section 3418. (ex.

where a lost note occurs).

The definition of “holder” can be found in Cal. Commercial Code Section 1201(a)(21)

which states:

“Holder,” means the person in possession of a negotiable instrument that is payable either to bearer or, to an identified person that is the person in possession. The California commercial code thus is perfectly clear that there must be possession of a note that is endorsed – either in blank to bearer, or specifically endorsed to an identified person that holds the original note or there is no right to foreclose on the property in a private trustee sale, under the new law. We are hereby demand specific and detailed proof certain that you possess this evidence that you are the PETE and to provide the other information requested above. Your evidence should also include any written authorizations that evidences your right to act as agent of the PETE, such as a written


7

authorization to enforce the note, agency agreement, or power of attorney. This is consistent with the intent of the passage of the California homeowners bill of rights in ensuring all foreclosure actions (and bankruptcy claims and actions) are done in accordance with law, and by the proper party, and anything short of this proof will not be deemed sufficient. You may not record a Notice of Default under Cal. Civ. Code Sec 2923.55 until you provide me with all of the above-requested information and evidence of your right to foreclose. Moreover, under California civil code section 2924.17:

“(b) Before recording or filing any of the documents described in subdivision (a), a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower’s default and the right to foreclose, including the borrower's loan status and loan information.”

These sections make clear that nothing short of competent and legally sufficient evidence will suffice to comply with this legal demand letter. The above requested information should be sent certified mail to my attention at my office located at:

XXXXXXXXX

XXXXXXXXXXX XXXXXXXXXXXX

In the event you do not comply fully and completely with this request, any attempt to effectuate a non-judicial foreclosure may result in legal action, including seeking a temporary restraining order (TRO) and preliminary injunction. A lis pendens may also be filed. A private right of action is authorized under the California homeowner’s bill of rights, as is attorney fees for a successful challenge (See California Civil Code Section 2924.12(i)) and such fees are awarded if an injunction is obtained or damages are awarded. All legal rights and remedies are hereby reserved.

I trust you will fulfill your legal obligations in a timely manner. I look forward to your prompt written response to this request. Very truly yours,

XXXXXXXXXX


8

144098619 California Homeowner Bill of Rights Sample Letter I Send Under California Civil Code 2923...

Documents

Transcript of 144098619 California Homeowner Bill of Rights Sample Letter I Send Under California Civil Code 2923...