It's particulary interesting to really LOOK at what Washington State law says about proof of standing to foreclose. Your "lender" is hoping you won't. Your foreclosure Trustee is hoping you won't.
NEW 8/22/2011
Washington State attorneys David A. Leen and Sheila M. O'Sullivan filed the following Motion to Disqualify in The United States Bankruptcy Court in the District of Western Washington.
Here's the deal: When the court grants this motion, it will set a critically important precedent in not only Washington State, but in other non-judicial states as well. It is almost routine for non-judicial foreclosures to follow this exact course of actions in most non-judicial states.
***In my opinion the allegation here should be RACKETEERING. ***
This is a precise, pre-meditated effort on the part of the executives and principles of these "Foreclosure Mills" to create a "turn key solution" (From the website of one of them) to banks to expedite the foreclosure process and sale of borrowers' homes. As I have been saying for so long: Foreclosure should not be able to be initiated, facilitated, perpetuated or adjudicated by ANY entity who PROFITS from it. Period.
Soon, the truth will come out.
Enjoy this outstanding presentation of legal expertise, and compare it to the blatantly deceptive behavior on the part of the foreclosure mill attorneys. Thanks to SUPER HERO Lisa Epstein at www.ForeclosureHamlet.org for posting it. UNSPEAKABLY beyond belief:
It would really be helpful if Washington law was upheld via JUDICIAL CHALLENGE. Perhaps this could be a helpful strategy to victims in our state who do NOT have about $10,000 in reserve to meet the financial demands of actually challenging a wrongful foreclosure.
File a PERJURY complaint with the Attorney General, and notify your "Trustee" that it has occurred and you demand proof of standing, they are (supposedly) required to look into it. I can tell you from experience they won't, and here's why: There are SOME that are being paid by the foreclosing servicer to "get the sale done"... whatever it takes.
In some cases, there is no real "Trustee" (I call them "Straw Trustees"). They are in name only, via a sign hanging on a door, often across the hall in the giant office building owned by their parent company, THE LAW FIRM who represents THE LENDER, as required by Washington Law, to give the appearance that they are a separate entity. In many cases, the foreclosing lender's law firm, is in fact, "the trustee". Conflict of interest?? On SO MANY levels...
RCW 61.24.130
Restraint of sale by trustee — Conditions — Notice.
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(1) Nothing contained in this chapter shall prejudice the right of the borrower, grantor, any guarantor, or any person who has an interest in, lien, or claim of lien against the property or some part thereof, to restrain, on any proper legal or equitable ground, a trustee's sale. The court shall require as a condition of granting the restraining order or injunction that the applicant pay to the clerk of the court the sums that would be due on the obligation secured by the deed of trust if the deed of trust was not being foreclosed.
Now, most people take that to mean that any involved party to the sale should be able to restrain a trustee's sale if something is seriously amiss. It's true, you can, but the reality is that WHEN you do it involves much more than raising your hand and saying "Whoa! There's a big problem!"
It takes a lawsuit. It takes a COMPETENT attorney that understands judicial foreclosure in Washington State (VERY RARE). Most do not, and WILL NOT represent you because they are not experienced enough. There are actually about TWO attorneys in the whole state that can actually TRULY handle this sort of litigation. There are fewer than 5 out of 100 residential foreclosures in Washington that are JUDICIAL. There is not much need for foreclosure litigation expertise. Homes are silently auctioned off, every Friday, by the thousands, without so much as a cursory glance by ANYONE who has the borrwer's interest in mind.
Washington has foreclosure mills just like Florida. They are cunning, they are well staffed, and well funded, and here's the REAL kicker: there are foreclosure mills in this state who OWN the ENTIRE CHAIN of companies that are involved in "protecting" the borrower from wrongful foreclosure.
- They own the process server that swears they served the notice lawfully.
- They own the title company that guarantees the title is clear to the buyer at auction.
- They own the TRUSTEE that, by law, must act in good faith to the borrower AND the lender.
- They own the law firm that represents the Trustee, and SIMULTANEOUSLY as in my own case, THE LENDER!!! Yes, you read that correctly. The lender's attorney, and the trustee's attorney are ONE AND THE SAME in my lawsuit! Code of Ethics violations anyone??? Only if I spend a bunch more money on it.
Now, that seems like a deck stacked against any chance of justice being served to the borrower, doesn't it? My friends, it is. It is very much against the law, it's against the Washington State Bar's Code of Ethics, and it's just plain WRONG.
How does it continue to go on? Quite simply, nobody has stopped them, it's the old law of "there must be a reason NOT to do something as well as a reason to DO it." It's as simple as that. So far, in Washington State, nobody has spent many, many thousands of their own personal dollars to put a stop to this CRIME via filing lawsuits. Until now. I did, and we are doing our part. YOU can file a complaint with our Attorney General, Rob McKenna, who is SPECIFICALLY targeting these unlawful trustees and hopefully soon, will put an end to the SLAUGHTER of justice that is happening in this state. He is working hard, and needs your help.
THEN the party bringing suit to STOP the sale must file a lawsuit after finding an attorney who will do it (oh by the way, if you are a typical citizen who is unsophisticated to deed of trust laws, you will find out that your house is about to be foreclosed in 120 days. The clock starts ticking. It's actually far less than that, because the lawsuit you must bring to stop it must be drafted, filed and SERVED 5 days BEFORE the sale date, at the latest.)
Here is what some states are bringing to the front: just because foreclosure happens as non-judicial, it does NOT mean that the state's deed of trust laws can be IGNORED. And ignored they are, every Friday, at the Trustee's sales, that are often happening ot THE TRUSTEES OWN PRIVATE PROPERTY (also illegal). Using Washington as an example, let's just explore what's going on and what you can do about it.
Washington laws specify DOCUMENTED transfers to PROVE chain of title. YES, MERS can legally initiate a non-judicial foreclosure action by serving a notice of default, but it CANNOT be the "PROOF" in and of itself to simply state that the chain is complete. It must supply documented transfers on paper to support it's claims when challenged in a JUDICIAL foreclosure:
RCW 61.16.010
Assignments, how made — Satisfaction by assignee.
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Any person to whom any real estate mortgage is given, or the assignee of any such mortgage, may, by an instrument in writing, signed and acknowledged in the manner provided by law entitling mortgages to be recorded, assign the same to the person therein named as assignee, and any person to whom any such mortgage has been so assigned, may, after the assignment has been recorded in the office of the auditor of the county wherein such mortgage is of record, acknowledge satisfaction of the mortgage, and discharge the same of record.
When the foreclosing "creditor" CANNOT provide the documented chain of transfers to prove their DECLARED standing to foreclose, then that means that, in Washington State, MERS (or the "creditor") perjures itself when it says it had standing to foreclose when initiating a non-judicial foreclosure and then follows up with manufacturing allonges and transfers to support it's action.
***PERJURY IS A FELONY***
RCW 61.24.030 states that foreclosure can be initiated on the declaration by the BENEFICIARY UNDER PENALTY OF PERJURY that they have proof (not that they will in the future after they fabricate it), but the declaration ITSELF is NOT "PROOF". The notarized transfers/allonges are proof, and must be produced in trial upon contest by the borrower, or interested party. They know whether or not they have them BEFORE they contacted the trustee to conduct the foreclosure. IF THE TRANSFERS CANNOT BE PRODUCED, they they are guilty of PERJURY. Period.
RCW 61.24.030
Requisites to trustee's sale.
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*** CHANGE IN 2011 *** (SEE 1362-S2.SL) ***
It shall be requisite to a trustee's sale:
(1) That the deed of trust contains a power of sale;
(2) That the deed of trust contains a statement that the real property conveyed is not used principally for agricultural purposes; provided, if the statement is false on the date the deed of trust was granted or amended to include that statement, and false on the date of the trustee's sale, then the deed of trust must be foreclosed judicially. Real property is used for agricultural purposes if it is used in an operation that produces crops, livestock, or aquatic goods;
(3) That a default has occurred in the obligation secured or a covenant of the grantor, which by the terms of the deed of trust makes operative the power to sell;
(4) That no action commenced by the beneficiary of the deed of trust is now pending to seek satisfaction of an obligation secured by the deed of trust in any court by reason of the grantor's default on the obligation secured: PROVIDED, That (a) the seeking of the appointment of a receiver shall not constitute an action for purposes of this chapter; and (b) if a receiver is appointed, the grantor shall be entitled to any rents or profits derived from property subject to a homestead as defined in RCW6.13.010. If the deed of trust was granted to secure a commercial loan, this subsection shall not apply to actions brought to enforce any other lien or security interest granted to secure the obligation secured by the deed of trust being foreclosed;
(5) That the deed of trust has been recorded in each county in which the land or some part thereof is situated;
(6) That prior to the date of the notice of trustee's sale and continuing thereafter through the date of the trustee's sale, the trustee must maintain a street address in this state where personal service of process may be made, and the trustee must maintain a physical presence and have telephone service at such address;
(7)(a) That, for residential real property, before the notice of trustee's sale is recorded, transmitted, or served, the trustee shall have proof that the beneficiary is the owner of any promissory note or other obligation secured by the deed of trust. A declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the actual holder of the promissory note or other obligation secured by the deed of trust shall be sufficient proof as required under this subsection. (exonerates Trustees, I guess, when "beneficiary" gets caught with their pants around their ankles)
(b) Unless the trustee has violated his or her duty under RCW 61.24.010(4), the trustee is entitled to rely on the beneficiary's declaration as evidence of proof required under this subsection.
(but when the borrower sends certified letters detailing fraud and discrepancy, they are REQUIRED to look deeper, not just "ask" the beneficiary what they think. When clear conflict arises, the satisfaction of proof of standing by "declaration" becomes VOID, and burdens the TRUSTEE to DEMAND PROOF. That is their DUTY according TO THE LAW.
Read more about Trustee Misconduct happening in Washington State HERE
Read more about Trustees holding sales on their own private property HERE
Read more about Trustee Misconduct via Niel Garfield HERE
See if YOUR Foreclosure involves these firms, and ACT NOW!
Right now, in Washington State, non-judicial foreclosure is like taking cops off the street and telling people to write themselves tickets if they speed. Let's put some teeth back in the laws. The laws are THERE. They are GREAT and don't need to be changed. (That's the good news.) Now here's the hard part: We have to throw a wrench in the gravy train and STOP THESE THUGS. Do what you can. Spread the word by sending this post to anyone and everyone you know in Washington State who might benefit from this knowledge.
Legal help IS available, via the NW Justice Project. It's not the BEST solution, but it's A SOLUTION, and a start. Don't let somebody steal your rights. If you feel you are being wrongfully foreclosed on, GET HELP.
CLICK HERE TO FIND HELP Tell them Social Apocalypse sent you :) We are all on the same team.
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