Ok… I’ve seen enough ….About 70% of all foreclosures do not include a declaration under penalty of perjury as required by civil code 2923.5 newly enacted Sept 6,2008. I am forming a class action to enjoin these wrongful foreclosures. Set fourth here is the portion of the pleading and the applicable law.
Invalid Notice of Default
181. There is in existence a certain written instrument which purports to be a Notice of
Default that is in the possession of Defendants, and each of them. (See Exhibit “B”)
182. The written instrument alleged in Paragraph “¬181” was procured as follows:
Defendants cannot prove that the nonjudicial foreclosure which occurred, strictly complied with the tenets of California Civil Code Sections 2923.5 and 2924 in order to maintain an action for possession pursuant to California Code of Civil Procedure section 1161. As of September 6, 2008, California Civil Code Section 2923.5 applies to loans made from January 1, 2003, to December 31, 2007, and loans secured by residential real property that are for owner-occupied residences. For purposes of Section 2923.5, “owner-occupied” means that the residence is the principal residence of the borrower. Prior to filing a Notice of Default, Section 2923.5 of the California Civil Code provides in pertinent part:
(1) A trustee may not file a notice of default pursuant to Section 2924 until 30 days after contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in subdivision (g).
(2) An authorized agent shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall schedule the meeting to occur within 14 days.
(3) A notice of default filed pursuant to Section 2924 shall include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the borrower as required by this section, or the borrower has surrendered the property to the mortgagee, trustee, beneficiary, or authorized agent.
Invalid Declaration on Notice of Default and/or Notice of Trustee’s Sale
183. The purpose of permitting a declaration under penalty of perjury, in lieu of a sworn statement, is to help ensure that declarations contain a truthful factual representation and are made in good faith. (In re Marriage of Reese & Guy, 73 Cal. App. 4th 1214, 87 Cal. Rptr. 2d 339 (4th Dist. 1999).
183. In addition to California Civil Code §2923.5, California Code of Civil Procedure §2015.5 states:
Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same, such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution; (2) if executed at any place, within or without this state, states the date of execution and that is so certified or declared under the laws of the State of California. The certification or declaration must be in substantially the following form:
(a) If executed within this state:
“I certify (or declare) under penalty of perjury that the foregoing is true and correct”:
(Date and Place) (Signature)
For our purposes we need not look any farther than the Notice of Default to find the declaration is not signed under penalty of perjury; as mandated by new Civil Code §2923.5(c). (Blum v. Superior Court (Copley Press Inc.) (2006) 141 Cal App 4th 418, 45 Cal. Reptr. 3d 902 ). The Declaration is merely a form declaration with a check box.
No Personal Knowledge of Declarant
According to Giles v. Friendly Finance Co. of Biloxi, Inc., 199 So. 2nd 265 (Miss. 1967), “an affidavit on behalf of a corporation must show that it was made by an authorized officer or agent, and the officer him or herself must swear to the facts.” Furthermore, in Giles v. County Dep’t of Public Welfare of Marion County (Ind.App. 1 Dist.1991) 579 N.E.2d 653, 654-655 states in pertinent part, “a person who verified a pleading to have personal knowledge or reasonable cause to believe the existence of the facts stated therein.” Here, the Declaration for the Notice of Default by the agent does not state if the agent has personal knowledge and how he obtained this knowledge.
The proper function of an affidavit is to state facts, not conclusions, ¹ and affidavits that merely state conclusions rather than facts are insufficient. ² An affidavit must set forth facts and show affirmatively how the affiant obtained personal knowledge of those facts. ³
Here, The Notice of Default does not have the required agent’s personal knowledge of facts and if the Plaintiff borrower was affirmatively contacted in person or by telephone
to assess the Plaintiff’s financial situation and explore options for the Plaintiff to avoid foreclosure. A simple check box next to the “facts” does not suffice.
Furthermore, “it has been said that personal knowledge of facts asserted in an affidavit is not presumed from the mere positive averment of facts, but rather, a court should be shown how the affiant knew or could have known such facts, and, if there is no evidence from which the inference of personal knowledge can be drawn, then it is
¹ Lindley v. Midwest Pulmonary Consultants, P.C., 55 S.W.3d 906 (Mo. Ct. App. W.D. 2001).
² Jaime v. St. Joseph Hosp. Foundation, 853 S.W.2d 604 (Tex. App. Houston 1st Dist. 1993).
³ M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403 (Tex. App. Corpus Chrisit 1999).
presumed that from which the inference of personal knowledge can be drawn, then it is presumed that such does not exist.” ¹ The declaration signed by agent does not state anywhere how he knew or could have known if Plaintiff was contacted in person or by telephone to explore different financial options. It is vague and ambiguous if he himself called plaintiff.
This defendant did not adhere to the mandates laid out by congress before a foreclosure can be considered duly perfected. The Notice of Default states, “That by reason thereof, the present beneficiary under such deed of trust, has executed and delivered to said agent, a written Declaration of Default and Demand for same, and has deposited with said agent such Deed of Trust and all documents evidencing obligations secured thereby, and has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby.” However, Defendants do not have the Deed of Trust, nor do they provide any documents evidencing obligations secured thereby. For the aforementioned reasons, the Notice of Default will be void as a matter of law.
Recording a False Document
184. Furthermore, according to California Penal Code § 115 in pertinent part:
(a) Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.
(b) Each instrument which is procured or offered to be filed, registered, or recorded in violation of subdivision (a) shall constitute a separate violation of this section.
In addition, California Evidence Code § 669 states in pertinent part:
(a) The failure of a person to exercise due care is presumed if:
(1) He violated a statute, ordinance, or regulation of a public entity;
¹ Bova v. Vinciguerra, 139 A.D.2d 797, 526 N.Y. S.2d 671 (3d Dep’t 1988).
Here, as stated above the Declaration of Due Diligence as required by Section 2923.5 of the California Civil Code is missing and/or improper for the Notice of Default. Therefore, Defendants are guilty of a felony for recording the Notice of Default with a false instrument according to California Penal Code §115. Since Defendants have violated a statute, the failure of them to exercise due care will be presumed.
183. The written instrument alleged in Paragraph “¬181” was also procured as follows:
By an invalid sale conducted on the part of Defendants, and each of them, in violation of statutes including, but not limited to: Plaintiff is informed and believes and thereupon alleges that the NOTE was invalid and unenforceable due to the intentional and willful violations including but, not limited to: California Civil Code 2924b etc. et seq., California Civil Code §§§ 2924b(a), 2924b(d), 2924b(e) by failing and/or refusing to mail the Notice of Default within ten business days to Plaintiffs, by failing and/or refusing to post and mail the Notice of Default; by failing and/or refusing to mail Plaintiffs the
Notice of Default within one month pursuant to California Civil Code § 2924b (c (1), (2); by failing and/or refusing to properly set the sale date pursuant to California Civil Code § 2924f(b); by failing and/or refusing to publish the Notice of Sale twenty days prior to the date set for sale pursuant to California Civil Code § 2924f(b); by failing and/or refusing to record the Notice of Sale pursuant to California Civil Code § 2924g(d);
184. Since the enumerated law was effective as of September 06, 2008 the sale of the property at issue is invalid pursuant to California Civil Code Sections 2923.5 and 2924,
and thus the Defendants’ claim of title and allegation thereto is erroneous.
185. Plaintiff alleges that Defendants, and each of them, willfully, wrongfully and without justification, and without privilege conducted an invalid foreclosure sale against the Plaintiff’s SUBJECT PROPERTY, thereby, slandering Plaintiff’s title thereto.
186. Furthermore, The California Foreclosure Prevention Act, states the following:
The California Foreclosure Prevention Action became effective June 15, 2009. This new law delays the non-judicial foreclosure process by requiring an addition 90-day delay (beyond the current three-month period) between recording a notice of default and a notice of stay for certain residential properties. The law applies to:
1. Loans recorded between January 1, 2003 and January 1, 2008, inclusive,
2. The borrower occupies the property as his/her principal residence and occupied it at the time the loan became delinquent;
3. A notice of default has been recorded on the property; and
4. The loan is secured by a first lien on residential property that is located in California.
187. In our case, Plantiff, Dannie S. Mahinay’s property was his principal place of residence and his deed was dated on April 9, 2007. Therefore, the California Foreclosure Prevention Action applies and they should be allowed an additional 90 days (plus the three-month period already) after Notice of Default is recorded.
188. The Trustee’s Deed Upon Sale obtained after the sale is false and causes a doubt to be cast on Plaintiff’s title to the property described above.
189. The aforementioned Instrument directly impairs Plaintiff’s right to possession and ownership of the Subject Property.
190. Furthermore, the aforementioned acts of Defendants, and each of them, were
motivated by oppression, fraud, malice in that Defendants, and each of them, by their respective acts, omissions, nonfeasance, misfeasance and/or malfeasance executed an invalid foreclosure sale of the Plaintiff’s SUBJECT PROPERTY, in order to deny Plaintiff of his rights of possession and ownership, whereupon, the Foreclosure was defective as such the Property must be restored to Plaintiff or Plaintiff is entitled to the value of thereof.
Check the notice of default and if there is no declaration “under penalty of Perjury”
Fax me the notice of default and or the notice of trustees sale if you qualify I will add you to the Class action now forming at no cost to you.
If we join together we can beat the lender and there Billions in predatory loans. Fax the notice to 909-382-9956 include your contact phone and my office will contact upon review of the notices. Again this is a class action now forming there is no charge for the review or to be member of the Class action
Southern California (909)890-9192 in Northern California(925)957-9797