Tag Archives: criminal acts

My plan for Loan Modifications i.e. Attorney loan mod

25 Jan

Recent Loan Modification studies have shown that a large percentage of traditional loan modifications put the borrowers more upside down than when they started.
Unfortunately many loan mods are leaving people with higher monthly payments. In many loan modifcation the money you did not pay gets tacked on to the back of the loan… Increasing your loan balance and making you more upside down. This is why over 50% of all loan mods are in default. They are not fixing the problem they are just postponing it.

Before you go into default on your loans at the advice of some former subprime loan seller, make sure you understand that absent finding some legal leverage over the lender you have a good chance of seeing your payments going up.

Our Loan Modification program includes

1. Upside Down Analysis

2. Qualified Written Request and offer of Loan Modification

3. Letter informing lender of clients election to pursue remedies carved out by recent California Law under 2923.6 and or Federal Programs under the Truth in lending Act and the Fair Debt collection practices Act.

4. Letter Disputing debt (if advisable)

5. Cease and Desist letters (if advisable)

6. Follow up, contact with negotiator, and negotiation by an attorney when needed.
By now many of you have read about all the Federal Governments Loan Modification Programs. Others have been cold called by a former loan brokers offering to help you with your Loan Modification. Its odd that many of the brokers who put people into these miserable loans are now charging people up front to get out of the them.

Before you spend thousands of dollars with someone, do an investigation:

1. Is the person licensed by the California Department of Real Estate? Or, the California State Bar?

2. Are your potential representatives aware that have to be licensed according to the DRE?

3. Are they asking you for money up front? They are violating the California Foreclosure Consultant act if they are neither CA attorneys nor perhaps Real Estate brokers in possesion of a no opinion letter from the California Department of Real Estate? Note… if a Notice of Default has been filed against your residence only attorneys acting as your attorney can take up front fees. Don’t fall for “attorney backed” baloney. Are you retaining the services of the attorney or not? Did you sign a retainer agreement ?

4. If your potential representative is not an attorney make sure he or she is a Real Estate Broker capable of proving their upfront retainer agreement has been given a no opinon letter by the DRE. (As of November 2008 – only 14 non attorney entites have been “approved by the DRE.)

5. If somone says they are attorney backed – ask to speak with the attorney. What does attorney backed mean? From what we have seen it is usually a junk marketing business being run by someone who can not get a proper license to do loan modifications.

6. Find out how your loan modification people intend to gain leverage over the lender.

7. If you are offered a loan audit or a Qualfied Written Request under RESPA letter – will an attorney be doing the negotiating against the lender? Will you have to hire the attorney after you pay for your loan audit? Doesn’t that put cart before the horse?

8. Will it do you any good to have a loan audit done if you later have to go out and retain an attorney. You want to retain their services of an attorney before you pay for the audit. The loan audit is the profit center; negotiation takes time.
9. What kind of results should you expect?

10. Who will be doing your negotiating?

11. Will the Loan Modification request go out on Legal Letterhead?

12. How much will you have to pay? Are you looking for a typical loan mod result or are you looking to leverage the law in the hopes of getting a better than average loan mod result.

13. What if your are not satisfied with the loan modification offered by the lender?

14. Should you go into default on both loans prior to requesting a loan modification? Why? What happens if the loan mod does not work out to your satisfaction? (very important question.)

15. Will an attorney review the terms of your loan modification with you? Will you have to waive your anti-deficiency protections if you sign your loan modification paperwork? Will an attorney help you leverage recent changes in California law in an attempt to get a substantial reduction in the principle?

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Never sign a stack of papers…

17 Jan

FORGERY: This criminal case involves a conviction for forgery of a deed of trust. [NOTE: The crime of forgery can occur even if the owner actually signed the deed of trust. The court pointed out that “forgery is committed when a defendant, by fraud or trickery, causes another to execute a document where the signer is unaware, by reason of such trickery, that he is executing a document of that nature.” people_v_martinez

Eviction and Due Process

7 Jan

ANALYSIS
I. Jurisdiction: State of California
II. Elements of Due Process.
Section 6(k) of the United States Housing Act of 1937 (42U.S.C. 1437d(k), as amended by section 503(a) of the NationalAffordable Housing Act of 1990, Pub. L. 101-625, approvedNovember 28, 1990),provides that:
For any grievance concerning an eviction or termination of tenancy that involves any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises of other tenants or employeesof the public housing agency or any drug-related criminal activity on or near such premises, the agency may . . . exclude from its grievance procedure any such grievance, in any jurisdiction which requires that prior to eviction, a tenant be given a hearing in court
which the Secretary determines provides the basic elements of due process . . . .

The statutory phrase, “elements of due process,” is defined by HUD at 24 CFR 966.53(c) as:
. . . an eviction action or a termination of tenancy in a State or local court in which the following procedural safeguards are required:
(1) Adequate notice to the tenant of the grounds for terminating the tenancy and for eviction;
(2) Right of the tenant to be represented by counsel
(3) Opportunity for the tenant to refute the evidence presented by the public housing agency (PHA) including
the right to confront and cross-examine witnesses and CALIFORNIA DUE PROCESS DETERMINATION
to present any affirmative legal or equitable defense which the tenant may have; and
(4) A decision on the merits.

HUD’s determination that a State’s eviction procedures satisfy this regulatory definition is called a “due process determination.” The present due process determination is based upon HUD’s analysis of the laws of the State of California to determine if an eviction action for unlawful detainer under those laws require a hearing which comports with all of the regulatory “elements of due process,” as defined in 966.53(c).

HUD finds that the requirements of California law governing an action for unlawful detainer in the superior, municipal and justice courts include all of the elements of basic due process,as defined in 24 CFR 966.53(c). This conclusion is based upon requirements contained in the California Civil Procedure Code (CCP), the California Civil Code (CC), case law and court rules.

III. Overview of California Eviction Procedures.
CCP 1161 defines unlawful detainer to include evictions because of (1) termination of tenancy at will; (2) possession after default in rent; (3) failure to perform conditions of lease; (4) subletting, waste, nuisance and unlawful use; and (5) failure to quit after notice. This determination will focus on the use of an unlawful detainer action for those evictions which may be excluded from a PHA’s grievance procedure pursuant to a HUD due process determination (i.e., evictions for drug-related criminal activity or criminal activity that threatens a tenant’sor a PHA employee’s health or safety). Thus, the analysis will consider unlawful detainer evictions because of failure to perform conditions of the lease or because of unlawful use.
The California Constitution, Art. 6, Section 10, provides, inter alia: “Superior Courts have original jurisdiction in all causes except those given by statute to other trial courts.”
California statute gives such original jurisdiction to municipal and justice courts in most residential eviction cases. CCP 86 provides:
(a) Each municipal and justice court has original
jurisdiction of civil cases and proceedings as follows . . .
i n all proceedings in forcible entry or forcible or
unlawful detainer where the whole amount of damages claimed
is twenty-five thousand dollars ($25,000) or less . . . .
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CALIFORNIA DUE PROCESS DETERMINATION
Owners, including PHA’s, may bring unlawful detainer actions
in municipal or justice court, or if recovery of over $25,000 is
being sought, superior court. Actions in these courts are
subject to the requirements of the CCP.
IV. Analysis of California Eviction Procedures for Each of the
Regulatory Due Process Elements.
A. Adequate notice to the tenant of the grounds for
terminating the tenancy and for eviction
(24 CFR 966.53(c)(l)).
As the first step in an eviction for breach of a lease
covenant or condition other than rent, or for violation of a
covenant or condition prohibiting use of the premises for an
unlawful purpose (CCP Section 161(2)(3)(4)), the landlord must
give three days’ notice of the termination of tenancy to the
tenant. After this notice, a verified complaint is filed
pursuant to CCP Section 1166. The complaint:
must set forth the facts on which (the plaintiff) seeks
to recover, and describe the premises with reasonable
certainty, and may set forth therein any circumstances
of fraud, force, or violence which may have accompanied
the alleged forcible entry or forcible or unlawful
detainer . . . . Upon filing the complaint, a summons
must be issued thereon.
Pursuant to CCP Section 1167, the summons and complaint in
an action for unlawful detainer are issued and served and
returned in the same manner as a summons in a civil action
“except that when the defendant is served, the defendant’s
response shall be filed within five days after the complaint is
served upon him or her, instead of the usual 30 days . . . .”
The shorter response period is required because unlawful detainer
actions are summary proceedings and has been held not to deny due
process in Deal v. Municipal Court (Tilbury), 204 Cal. Rptr. 79
(157 Cal. App. 3rd 991)(1984).
Procedures for service are prescribed by CCP 1162. The
complaints and summons required by CCP 1162 may be served by
(a) delivering a copy to the tenant personally; (b) leaving a
copy with a person of suitable age and discretion at either the
place of residence or usual place of business; (c) or by posting.
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CALIFORNIA DUE PROCESS DETERMINATION
In addition to the above notice requirements, California
Health and Safety Code, Section 34331, in the Housing Authorities
Law, provides that:
In the operation or management of housing projects, an
authority shall not do any of the following: (a) Evict
any tenant without reasonable cause unless the tenant
has been given a written statement of such cause . . . .
B. Right to be represented by counsel
(24 CFR 966.53(c)(2)).
Statutes and court rules governing actions in superior,
municipal and justice courts include references to counsel, and
assume the right to be represented by counsel, e.g., California
Court Rule 376 (motion to be relieved as counsel), CCP 284
(change of attorney), CCP 283 (authority: attorneys and
counselors at law). CCP 1014 provides that “a defendant
appears in an action when he answers, demurs . . . or when an
attorney gives notice of appearance for him.”
C. Opportunity for the tenant to refute the evidence
presented by the PHA, including the right to confront
and cross-examine witnesses (24 CFR 966.53(c)(3)).
Under CCP 2002 the testimony of witnesses is taken in
three modes: (1) affidavit, (2) deposition and (3) oral
examination. Oral examination is defined under CCP 2005 as an
“examination in the presence of the jury or tribunal which is to
decide the fact or act upon it, the testimony being heard by the
jury or tribunal from the lips of the witness.” Section 773 of
the California Evidence Code provides that a witness examined by
one party may be cross-examined upon any matter within the scope
of the direct examination by each other party to the action in
such order as the court directs.
D. Opportunity to present any affirmative legal or
equitable defense which the tenant may have
(24 CFR 966.53(c)(3)).
CCP 1170 provides that “on or before the day fixed for his
appearance the defendant may appear and answer or demur.”
CCP 431.30(b) provides that “the answer to a complaint shall
contain: (1) the general or specific denial of the material
allegation of the complaint . . . (2) a statement of any new
matter constituting a defense.”
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CALIFORNIA DUE PROCESS DETERMINATION
In summary the rule:
. . . is that a defense normally permitted because it
arises out of the subject matter of the original suit
is generally excluded in an unlawful detainer action if
such defense is extrinsic to the narrow issue of
possession, which the unlawful detainer procedure seeks
speedily to resolve. Fn. omitted. ‘ No . . .
California decision, however, prohibits a tenant from
interposing a defense which does directly relate to the
issue of possession and which, if established, would
result in the tenant’s retention of the premises.
(emphasis added) Fn. omitted (Green v. Superior
Court (1974) 10 Cal. 3d 616, 632-633, 111 Cal. Rptr.
704, 517 P. 2d 1168).
Deal v. Municipal Court (Tilbury), 204 Cal. Rptr. 79 (157
Cal. App. 3rd 991)(1984) noted that under the California Rules of
Court, the mandatory form of answer “contains the affirmative
defenses now recognized in California.” Deal was cited with
approval in Lynch & Freytaq v. Cooper, 267 Cal. Rptr. 189, 192
(1990): “. . . the constitutionality of these summary procedures
is based on their limitation to the single issue of right to
possession and incidental damages.”
E. A decision on the merits (24 CFR 966.53(c)(4)).
Section 632 of the CCP provides for courts in non-jury
trials to “issue a statement of decision explaining the factual
and legal basis for its decision as to each of the principal
controverted issues at trial upon the request of any party
appearing at the trial . . . .” In jury trials the jury’s
verdict must be made on the basis of the facts and the law.
CCP 592 states that ” i n actions for the recovery of . . .
real property . . . with or without damages . . . an issue of
fact must be tried by a jury unless a jury trial is waived.”
Where issues of law and fact both exist, the former must be
disposed of first by the court.
V. Conclusion.
California law governing an unlawful detainer action in the
superior, municipal and justice courts requires that the tenant
have the opportunity for a pre-eviction hearing in court which
provides the basic elements of due process as defined in 24 CFR
966.53(c) of the HUD regulations.
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CALIFORNIA DUE PROCESS DETERMINATION
By virtue of this determination under section 6(k) of the
U.S. Housing Act of 1937, a PHA in California may evict a tenant
pursuant to a superior, municipal or justice court decision. For
such evictions, the PHA is not required to first afford the
tenant the opportunity for an administrative hearing on an
unlawful detainer action that involves any criminal activity that
threatens the health, safety, or right to peaceful enjoyment of
the premises of other tenants or employees of the PHA or any
drug-related criminal activity on or near such premises.
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