This is a question we get all the time. For the most part, it appears trying the “produce the note defense” to a non-judicial foreclosure sale in Arizona (ex. Filing for a temporary restraining order or preliminary injunction in order to stop the non-judicial foreclosure strategy) will not prove to be a valid and viable defense. This outcome would be similar to the outcome a homeowner in California might experience (these are the two states the law offices of steve vondran is licensed to practice in).

Here is the previous blog we wrote on this topic in California: http://www.foreclosuredefenseresourcecenter.com/2010/03/can-a-california-homeowner-demand-that-the-lender-or-loan-servicer-produce-the-note-as-a-foreclosure-defense-strategy/

How have the Arizona Courts handled the “produce the note question” in regards to non-judicial foreclosure sale? Here are a few cases:

1. Dumont v. HSBC Mortg. Corp., USA, Slip Copy, 2010 WL 3023885, D.Ariz.,2010. In this case, the Arizona District Court held:

“Plaintiff’s first two claims-Injunctive Relief and Declaratory Relief, respectively-are underpinned by the same legal theory; what this, and other courts, have labeled “show-me-the-note.” Plaintiffs assert that Defendants HSBC and MERS (and, therefore, Bosco) lack the authority to exercise the power of non-judicial foreclosure contained in the deed of trust “without first demonstrating that the person or entity conducting the Trustee’s Sale has authority from the original lender ‘principal’ or from the assignee of record of the original lender to do so.” In other words, Plaintiffs’ contend that Defendants must produce the original note or other entitlement to enforce the note to exercise the power of non-judicial foreclosure, i.e. they want to be shown the note. Accordingly, Plaintiffs want this Court to prevent Defendants from foreclosing on their property and declare that an such foreclosure is unlawful. Their position, however, is incorrect.”

The Court went on to point out that Plaintiff’s attorney knew this defense would not be valid. To this point the Court stated:

“The Court notes that every claim plead in Plaintiffs’ Complaint alleges facts which are related to the show-me-the-note theory. Viewed in its entirety, Plaintiffs Complaint reads primarily as an attack on non-judicial foreclosures and the processes associated with them, especially the fact that a non-judicial foreclosure may be commenced without production of the original note. That Plaintiffs chose this line of attack is curious, as Plaintiffs’ counsel was the counsel of record on Dumesnil v. Bank of America., N.A., in which a nearly identical show-me-the-note claim was rejected. More curious still, Plaintiffs’ counsel failed to cite to any authority which controverted its theory, despite the fact that he must clearly have been aware of such authority. Any future submissions to this Court by Plaintiffs’ attorney that fail to cite relevant authority will result in sanctions.”

1. Diessner v. Mortgage Electronic Registration Systems, 618 F.Supp.2d 1184, D.Ariz.,2009. In this case, the produce the note defense was also raised by the Plaintiff. Again, the court rejected the legal argument stating:

“Diessner does not cite, nor is the court aware of, any controlling authority providing that the cited UCC section applies in non-judicial foreclosure proceedings in Arizona. To the contrary, district courts “have routinely held that Plaintiff’s ‘show me the note’ argument lacks merit.” Furthermore, Arizona’s non-judicial foreclosure statute does not require presentation of the original note before commencing foreclosure proceedings. Because this action involves the non-judicial foreclosure of a real estate mortgage under an Arizona statute which does not require presentation of the original note before commencing foreclosure proceedings, count one of plaintiff’s complaint fails to state a claim upon which relief may be granted. Moreover, Diessner’s claim for declarative relief is dismissed with prejudice “because the acts complained of cannot constitute a claim for relief.”

Finally, the following case also discusses the PRODUCE THE NOTE FORECLOSURE DEFENSE IN ARIZONA.

1. Mansour v. Cal-Western Reconveyance Corp., 618 F.Supp.2d 1178, D.Ariz.,2009. In this SHOW ME THE NOTE CASE, the ARIZONA COURT HELD:

Counts One, Two and Three all revolve around Plaintiff’s allegation that because Defendants have not produced the original note securing the mortgage, they have no valid ownership interest and therefore may not foreclose on the property. This argument misapprehends the law. The UCC pertaining to negotiable instruments, as codified in Arizona at title 47, chapter 3, provides that “ ‘persons entitled to enforce’ an instrument [include] the holder of the instrument, a non-holder in possession of the instrument who has the rights of a holder or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to § 47-3309.” A.R.S. 47-3301.

What do these cases suggest? They suggest that filing a lawsuit and seeking a TRO or injunction using the “RODUCE THE NOTE” OR “SHOW ME THE NOTE” foreclosure defense, may not work in Arizona, as it will not apparently work in California. The cases cited for produce the note often arise in “JUDUCIAL FORECLOSURE STATES” where the lenders MUST bring the foreclosure lawsuit in a Court of law and MUST establish their legal standing to bring the suit (i.e. they must prove their right to foreclose by showing the note or giving a reason why the do not have the note – ex. Lost or destroyed).

In Arizona, a non-judicial foreclosure state (where the lender can choose judicial or non-judicial foreclosure) the obligation to produce the note apparently does not exist. Which raises an interesting question, if we know there is tons of fraud going on in judicial foreclosure states, why does the law say “oh well” in Arizona? Seems there is a fast one being pulled in Arizona by the mere fact that foreclosures may be brought non-judicially.

Note: This is not to say that “produce the note” or “show me the note” or “prove you are my creditor” do not have application in the foreclosure setting, for example, we discussed the Weisband case on another blog which talks about proof issues in a bankruptcy setting involving the note.

Here is our blog post on Weisband: http://www.ultimatebk.com/a-loan-servicer-must-have-legally-valid-credentials-to-file-a-motion-to-lift-the-automatic-stay-in-a-chapter-13-bankruptcy-case-in-arizona/#more-69.

Steve Vondran is a foreclosure defense and bankruptcy lawyer helping borrowers and homeowners in Arizona and California.

The foregoing is just my personal interpretation/opinion of the case and is not intended to be construed as legal advice or a substitute for legal advice.  For specific questions consult a foreclosure and/or bankruptcy lawyer.  Attorney Steve Vondran is licensed to practice law in California and Arizona.  He is also a real estate broker in each state, and is on Neil Garfield’s Living Lies Websites under “lawyers who get it.”  Jurisdictions can differ on their application and interpretation of legal cases and case law can, and does change over time.

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California BK Case (Real Party in Interest): In re Hwang, 396 B.R. 757 (C.D. California 2008).
LINK:  Here is a link to the Case Analysis: http://www.producethenoteattorney.com/2010/05/in-re-hwang-an-overview-of-motion-for-relief-from-automatic-stay-real-party-in-interest-and-constitutional-standing-requirements-in-a-california-bankruptcy-court/

I. Key Facts

This case involved a 376k loan originated by Mortgage IT, Inc. in 2007.  The Borrower Hwang, gave a note to Mortgage IT and the loan was later transferred to Indymac Bank, FSB (no longer in business with assets sold to OneWest bank through the FDIC conservatorship).  Indymac Bank was the “holder of the note” as they had physical possession of the note, but the note had been sold “through Freddie Mac” and presumably sold off to investors on Wall Street through a securitized trust.

So, Indymac had actual physical possession of the loan (apparently they produced an original copy at the stay hearing and also produced the Deed of Trust assigned from MERS), but the ownership of the loan was sold to a unknown third party and thus ownership of the loan was not in the hands of Indymac although the right to enforce the loan was (and in fact Indymac had been acting only as the loan servicer at the time the borrower Hwang filed for BK in 2008).

When the borrower filed for BK in 2008, Indymac Federal bank (as other so-called “lenders” normally will due when a chapter 7 bankruptcy is filed) filed a motion for relief from the automatic stay and sought to lift the stay so that the debtor’s property could be sold.  So amazingly, although Indymac sold the loan to an unknown third party, they still sought to lift the automatic stay in bankruptcy alleging that is was the loan servicer, but yet they didn’t know who actually owned the loan (i.e. on whose principal’s behalf they were actually servicing the loan for).  Welcome to the wonderful world of securitized loans.

The borrower challenged Indymac’s right to seek relief from the automatic stay from foreclosure afforded by the bankruptcy filing.

II.  Legal Issue

Under what circumstances may a party to a bankruptcy action lift the Section 362 automatic stay from foreclosure? Or as the Court stated it: “the question remains, to whom is the debt owed”

III.  Courts Holding:

The court essentially articulated a three-part test to determine when it was proper for a party to invoke the power of the bankruptcy court to lift the automatic stay that would prevent a foreclosure sale following the filing of bankruptcy chapter 7 by a debtor.

(1)  Only a “holder” of a note can enforce it

(2)  The “holder of the note must have constitutional “standing” to seek to lift the automatic stay in bankruptcy

(3)  The holder of the note, who has standing, must also be the “real party in interest” to the transaction in order to be able to seek to lift the BK stay.

Indymac Federal (as predecessor to the failed Indymac bank through the FDIC conservatorship) at best was the loan servicer even though it did not know who actually owned the loan it had sold, and could not produce any loan servicing agreement.  However, due to the mere fact that they had possession of the note (“holder”), they were entitled to enforce the note even though they had sold it off “through Freddie Mac” and apparently to a securitized trust on behalf of investors on Wall Street.  Note that the Court said whoever DOES own the loan cannot presently enforce it because they do not have possession of the secured note, as Indymac Federal has actual possession of the note and deed of trust.

That being said, the Court determined that Indymac had standing as they had possession of the note and right to enforce it, but that they were not a real party in interest to the motion to lift the automatic stay (the real party is unidentified and needs to be joined) and therefore its motion to lift the stay, with attached declarations, and copy of the note (the original was produced in court) and deed of trust, do not make it the real party in interest, and the motion was therefore denied

THIS OUTCOME BEGS THE QUESTION: WHAT HAPPENS NEXT AFTER A SO-CALLED LENDER IS KICKED OUT OF COURT AND THE MOTION TO LIFT THE AUTOMATIC STAY IS DENIED, AND THE REAL PARTY HAS NOT BEEN IDENTIFIED?  STAY TUNED.

IV.   Rationale

(1)     Legal obligations of parties to a bankruptcy proceedings (ex. the law governing negotiable notes) are controlled by applicable STATE LAW unless bankruptcy law is on point controlling the issues. In this event, who the owner of the loan is, and who has a legal right to enforce it is decided by State Law as the court set forth citing the applicable provisions of the California Commercial Code (“CComC”), the California version of the Uniform Commercial Code (“UCC”).

(2)    A Party filing a motion for relief from the automatic stay against foreclosure, in a bankruptcy Court must satisfy both substantive grounds for the motion (i.e. who has right to enforce note), and procedural grounds (i.e. that it has standing to file the motion – Article III of the US Constitution; and that it is a real party in interest to make the filing – FRCP 17).  The real party in interest must be joined in an action under FRCP Rule 19 where necessary to avoid multiple litigation, or where needed to provide parties with effective relief in a single action, and if necessary to protect absent persons from the possible prejudicial effects of deciding a case without them.  In this case the Court denied Indymac Federal’s motion for relief from the automatic stay ON PROCEDURAL GROUNDS because of Rule 17 (Indymac was not real party in interest) and Rule 19 (joinder of trustee of securitized trust was required).

(3)      NOTE THAT THE MORTGAGE LOAN AT ISSUE WAS A “MERS LOAN” AND THAT MERS HAD TRANSFERRED THE DEED OF TRUST TO INDYMAC ON JANUARY 29, 2008.  AT THAT POINT INDYMAC BANK WOULD HAVE HAD BOTH THE NOTE AND THE DEED OF TRUST.  The case discussed how 85% of all mortgages originated in 2006 and 2007 were securitized and a link provided to a report from the Milken Institute: http://www.milkeninstitute.org/pdf/SubprimeMeltdownv2.pdf (registration required).

(4)     Essentially the Court discussed California Commercial Code law and discussed what party has a right to enforce a note.  The Court first discussed what a “negotiable instrument is” under California law.  We have provided link to the law here: http://www.producethenoteattorney.com/2010/05/hwang-bankruptcy-case-motion-to-lift-the-automatic-stay-is-denied-what-is-a-negotiable-instrument-under-california-commercial-code-section-3104/.  The Court determined that “the note here at issue is a negotiable instrument”

(5)     Next, the Court discussed that only the “holder” of an instrument can enforce it. The Court discussed what a “holder” is under California Commercial Law. Again, here is a link to the code provision the court cited to: http://www.producethenoteattorney.com/2010/05/holder-in-due-course-challenging-motion-to-lift-stay-in-bankruptcy-in-california/.  In short, the “holder” of the note is one with POSSESSION OF THE NOTE which is either payable to bearer, or to an identified person.  Here, Indymac had possession of the note and the note was payable to Indymac.

(6)     Next, the Court discussed “who can enforce a note” (persons entitled to enforce) and the Court cited California Commercial Code Section 3301.  Here is a link to that code section: http://www.producethenoteattorney.com/2010/05/hwang-bankruptcy-case-who-is-a-holder-of-a-note-entitled-to-enforce-it-california-commercial-code-section-3301/.

(7)     As a result of the foregoing sections of the California Commercial Code, the Court held that Indymac had standing to enforce the note (based on its actual possession of such and that the note was indorsed to Indymac), even though Indymac had subsequently sold the note through Freddie Mac – who was not a party to the case – and despite the fact that the true “owner” (and thus the current “lender” or beneficiary under the deed of trust) was not known or disclosed, and in fact was a total mystery as it seems.

(8)     The Court then discussed the concept of “negotiating” secured instruments and cited the holder in due course rule under California law: http://www.producethenoteattorney.com/2010/05/what-is-a-holder-in-due-course-under-california-commercial-code-section-3302-in-relation-to-negotiable-instruments-such-as-a-secured-mortgage-note/.   In this case, the loan was negotiated from Mortgage IT to Indymac, but not from Indymac to anyone else.  Although there was a contract to sell ownership of the note through Freddie Mac, there was no such legal transfer of possession or negotiation.

(9)     The Court presented two alternatives for Indymac to consider: (1) transfer the loan to its rightful owner and let them enforce it or let them file a motion to lift the automatic stay, or (2) Indymac can try to enforce the loan (although it cannot lift the stay) even though it does not own the loan. Under this scenario I suppose Indymac would sell the property after the BK is discharged and that would be the end of the story since you cannot argue PRODUCE THE NOTE IN A PRIVATE TRUSTEE SALE.  See our blog posts in this regard: http://www.foreclosuredefenseresourcecenter.com/2010/03/can-a-california-homeowner-demand-that-the-lender-or-loan-servicer-produce-the-note-as-a-foreclosure-defense-strategy/.  Now normally I would say this might be subject to a legal challenge (lawsuit and TRO keeping a “pretender lender” from foreclosing), but recall in the facts of this case Indymac had possession of both the (original) note and deed of trust with proper delivery and endorsement.  So, under these facts, at least on paper, it does have the proper credentials to foreclose and they would seem to be liable to some “real owner” of the loan if such was ever found.

(10)   The Court discussed the “common practice” of “failure to deliver notes when they are sold” on the secondary loan market, but also discussed that “entities who hold valid notes are entitled to receive timely payments” (evidencing that the Courts are not really interested in any “house for free” argument).  But again this is not really a reason to ignore the legal challenge in a bankruptcy court and to challenge the alleged creditor of your loan.  If a false creditor is filing a proof of claim, or alleging it has a lien on your property in the face of conflicting evidence, a bankruptcy Court would seem to be a good forum for raising these issues regarding ownership.  Here, Indymac had a valid claim to enforce the loan even though it conceded it was not the owner.

(11)  NO RISK OF FINANCIAL DOUBLE JEOPARDY BY PAYING INDYMAC WHO DOES NOT OWN THE LOAN.  The Court recognized that although Indymac does not own the loan, it does have the legal right to “enforce” the loan.  If the owner pays Indymac (instead of the true owner) the borrower is entitled to a credit to their payments under California Commercial Code Section 3602 which we have provided here for you: http://www.producethenoteattorney.com/2010/05/hwang-bankruptcy-case-financial-double-jeopardy-borrower-is-entitled-to-credit-for-payments-made-on-an-instrument-california-commercial-code-section-3602/.

(12)  Despite the fact that Indymac had a ‘right to enforce the note’ (which gives them legal standing for constitutional purposes) this is not the same as saying that they are the “real party in interest.”  To invoke the power of Federal Courts, both are required to be established.  Again, the Court determined that Indymac had no real concrete stake in the outcome and thus was not the real party to the transaction.  The Court stated if they wanted to prove they were a real party in interest under Rule 17 of the Federal Rules of Civil Procedure.  SEE http://www.producethenoteattorney.com/2010/05/who-is-the-real-party-in-interest-under-frcp-rule-17-hwang-case-california-bankruptcy-motion-to-lift-the-automatic-stay-in-chapter-7-bk/.  THE COURT WENT ON TO STATE THAT “IF A LOAN HAS BEEN SECURITIZED, THE REAL PARTY IN INTEREST IS THE TRUSTEE OF THE SECURITIZED TRUST AND NOT THE SERVICING AGENT.”  BECAUSE INDYMAC PROVIDED NO EVIDENCE, THE COURT COULD NOT DETERMINE WHO THE REAL PARTY IN INTEREST WAS.  THE COURT ESSENTIALLY DETERMINED THAT THE MOTION TO LIFT THE AUTOMATIC STAY IN BANKRUPTCY COURT SHOULD BE BROUGHT OR PROSCUTED IN THE NAME OF THE TRUSTEE OF THE SECURITIZED TRUST (WHICH ACCORDING TO THE COURT LIKELY SECURITIZED THE NOTE WITH 10,000 OTHER NOTES).  THE COURT THINKS JOINDER OF THE TRUSTEE IS NECESSARY.

What principles of law might derive from this case?

(1)                            A secured note (essentially MERS loans that wind up on Wall Street) is a negotiable instrument and can be freely bought and sold on the secondary loan market, including securitizing them into securitized trusts with thousands of other notes.

(2)                            Where one lender (ex. MortgageIT) wants to transfer ownership of the loan to a new entity (such as Indymac Bank here), “negotiation” of the instrument is accomplished by proper endorsement of the note (to a specific person or payable to a bearer) and delivery of the note to the new “holder” who will have “possession” of the note and can enforce it as such, and may even be a “holder in due course.”
(3)                           Where one entity holds the note and deed of trust assignment (the Court did not really get into the assignment of the deed of trust) they have the rights of a holder and can enforce the loan, seek to lift an automatic stay in bankruptcy and probably also file proof of claims in a Chapter 13 case, or properly respond to adversary proceedings challenging the extent or validity of a lien (ex. in a TILA rescission case).
(4)                            However, where the bankruptcy courts are involved, it should be required that any alleged “lender” “creditor” or “loan servicer” (agent) who is seeking to invoke the power of a bankruptcy court to do, or refrain from doing something, the Court should require valid credentials (such as proof of the note and deed of trust assignment) with proper endorsements and physical possession of the note.
(5)                            In cases dealing with OneWest bank (who bought ‘assets’ from the FDIC) the Loan Sale Agreement between the FDIC and OneWest bank require the “purchaser” (OneWest Bank) to perfect its security interest through MERS.  In this event, if you are in litigation with OneWest bank, you should seek to find out whether or not OneWest (sometimes referred to as “new Indymac” since they occupy the same campus as the failed Indymac once occupied) actually got an assignment of the note and deed of trust from MERS or whether or not there are challenges as to standing, or real party in interest (joinder) that should be raised and/or evaluated.

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If you are having issues trying to determine who owns your loan, who the beneficiary is, who has the right to foreclose, and if you are thinking of filing bankruptcy, have a foreclosure defense lawyer review your notice of default, notice of sale, chain of title, deed of trust, and other critical documents to see who the true lender might be.  There may be legal challenges you can raise in “stay litigation (motions for relief from automatic stay), challenges to proofs of claims filed in bankruptcy court, and in adversary proceedings challenging the validity of an alleged lien.  Just who your true creditor is, and who their truly authorized agents are is becoming an interesting issue in the age of loan securitization.

ABOUT US:

The Law Offices of Steve Vondran in licensed to practice law in California and Arizona.  Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.

He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084

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KEYWORDS: ARIZONA FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / SCOTTSDALE FORECLOSURE DEFENSE ATTORNEY / SCOTTSDALE FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY PREDATORY LENDING LAWYER / ORANGE COUNTY FORECLOSURE DEFENSE ATTORNEY / ORANGE COUNTY FORECLOSURE DEFENSE LAYWER /  TRUTH IN LENDING LAWYER / TRUTH IN LENDING ATTORNEY / SOUTHER CALIFORNIA MORTGAGE LAW ATTORNEY / MORTGAGE LAWYER / RIVERSIDE FORECLOSURE ATTORNEY / RIVERSIDE FORECLOSURE LAWYER / RESPA LAWYER / RESPA ATTORNEY / FORECLOSURE DEFENSE LAW / PHOENIX LOAN MODIFICATION ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY REAL ESTATE LAWYER / ORANGE COUNTY PREDATORY LENDING AND MORTGAGE LITIGATION ATTORNEY / NEWPORT BEACH FORECLOSURE DEFENSE LAWYER / NEWPORT BEACH FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE LAWYER / PREDATORY LENDING LAWYER / LOAN RESCISSION ATTORNEY / TILA RESCISSION LAWYER / WACHOVIA OPTION ARM LOAN / WORLD SAVINGS OPTION ARM LOAN / RESCIND MY LOAN /

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HELPFUL FORECLOSURE DEFENSE LINKS:

To see some of other websites dealing with the financial crisis please review the following websites:

(1) www.OptionArmLawyer.com (potential attacks against the predatory option arm loan – aka “Pick-a-Prey”)

(2) www.TrialPlanFraud.com (tackling issues involved with what we call trial-plan shenanigans)

(3) www.BKAttorneyS.net (BK Attorney Steve – Chapter 7 Bankruptcy information for Arizona and California Homeowners)

(4) www.RescindMyLoan.net (website that discusses Truth in Lending Rescission information)

(5) www.LoanModRadio.com (site which features foreclosure defense issues in streaming audio)

(6) www.ProduceTheNoteAttorney.com (general information on the “Produce the Note” foreclosure defense strategy that is running rampant on the Internet)

(7) www.ArizonaBankruptcyResourceCenter.com

(8) www.FoclosureDefenseResourceCenter.com

(9) www.PhonixBKLawyer.com

(10) www.AdversaryProceeding.com

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Some legal cases we are able to accept in a contingency fee basis.  Certain select cases are listed on www.ContingencyCase.com an online legal directory for lawyers who will consider taking cases on a contingency fee basis in a variety of legal areas.  There is no guarantee we will be able to take your case on contingency fee.

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KEYWORDS: ARIZONA FORECLOSURE DEFENSE / CALIFORNIA FORECLOSURE DEFENSE / SUING ON A OPTION ARM LOAN / PREDATORY LENDING LAWSUIT / INJUNCTION AGAINST FORECLOSURE / STOPPING A FORECLOSURE SALE / FORENSIC LOAN AUDIT / PHOENIX FORECLOSURE LAWYER / PHOENIX FORECLOSURE ATTORNEY / ORANGE COUNTY FORECLOSURE ATTORNEY / ORANGE COUNTY FORECLOSURE LAWYER / LIS PENDENS / QUALIFIED WRITTEN REQUEST / DEBT VALIDATION LETTER / TRUTH IN LENDING LAWYER / TILA LAWYER / FORENSIC LOAN AUDIT / SECURITIZED LOAN / MERS LOAN / RESCIND MY LOAN IN BANKRUPTCY / PHOENIX CHAPTER 7 BANKRUPTCY LAWYER / CHAPTER 13 BANKRUPTCY / STANDING / REAL PARTY IN INTEREST / NEWPORT BEACH FORECLOSURE LAWYER / SHORT SALE / QWR / RESPA

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Truckee
Orange
Anaheim
Brea
Buena Park
Costa Mesa
Cypress
Dana Point
Fountain Valley
Fullerton
Garden Grove
Huntington Beach
Irvine
La Habra
La Palma
Laguna Beach
Laguna Hills
Laguna Niguel
Lake Forest
Los Alamitos
Mission Viejo
Newport Beach
Orange
Placentia
San Clemente
San Juan Capistrano
Santa Ana
Seal Beach
Stanton
Tustin
Villa Park
Westminster
Yorba Linda
Placer
Auburn
Colfax
Lincoln
Loomis
Rocklin
Roseville
Plumas
Portola
Riverside
Banning
Beaumont
Blythe
Calimesa
Canyon Lake
Cathedral City
Coachella
Corona
Desert Hot Springs
Hemet
Indian Wells
Indio
La Quinta
Lake Elsinore
Moreno Valley
Murrieta
Norco
Palm Desert
Palm Springs
Perris
Rancho Mirage
Riversi
San Jacinto
Temecula
Folsom
Galt
Isleton
Sacramento
San Benito
Hollister
San Juan Bautista
San Bernardino
Adelanto
Apple Valley
Barstow
Big Bear Lake
Chino
Chino Hills
Colton
Fontana
Grand Terrace
Hesperia
Highland
Loma Linda
Montclair
Needles
Ontario
Rancho Cucamonga
Redlands
Rialto
Twentynine Palms
Upland
Victorville
Yucaipa
Yucca Valley
San Diego
Carlsbad
Chula Vista
Coronado
Del Mar
El Cajon
Encinitas
Escondido
Imperial Beach
La Mesa
Lemon Grove
National City
Oceanside
Poway
San Marcos
Santee
Solana Beach
Vista
San Francisco
San Joaquin
Escalon
Lathrop
Lodi
Manteca
Ripon
Stockton
Tracy
Arroyo Grande
Atascadero
Grover Beach
Morro Bay
Paso Robles
Pismo Beach
San Luis Obispo
San Mateo
Atherton
Belmont
Brisbane
Burlingame
Colma
Daly City
East Palo Alto
Foster City
Half Moon Bay
Hillsborough
Menlo Park
Millbrae
Pacifica
Portola Valley
Redwood City
San Bruno
San Carlos
San Mateo
South San Francisco
Woodside
Santa Barbara
Buellton
Carpinteria
Guadalupe
Lompoc
Santa Barbara
Santa Maria
Solvang
Santa Clara
Campbell
Cupertino
Gilroy
Los Altos
Los Altos Hills
Los Gatos
Milpitas
Monte Sereno
Morgan Hill
Mountain View
Palo Alto
San Jose
Santa Clara
Saratoga
Sunnyvale
Santa Cruz
Capitola
Santa Cruz
Scotts Valley
Watsonville
Shasta
Anderson
Redding
Shasta Lak
Sierra
Loyalton
Siskiyou
Dorris
Dunsmuir
Etna
Fort Jones
Montague
Mount Shasta
Tulelake
Weed
Yreka
Solano
Benicia
Dixon
Fairfield
Rio Vista
Suisun City
Vacaville
Vallejo
Sonoma
Cloverdale
Cotati
Healdsburg
Petaluma
Rohnert Park
Santa Rosa
Sebastopol
Sonoma
Windsor
Stanislaus
Ceres
Hughson
Modesto
Newman
Oakdale
Patterson
Riverbank
Turlock
Waterford
Sutter
Live Oak
Yuba City
Tehama
Corning
Red Bluff
Tehama
Trinity
Tulare
Dinuba
Exeter
Farmersville
Lindsay
Porterville
Tulare
Tulare
Visalia
Woodlake
Tuolumne
Sonora
Ventura
Camarillo
Fillmore
MoorpaOjai
Oxnard
Port Hueneme
Santa Paula
Simi Valley
Thousand Oaks
Ventura
Yolo
Davis
West Sacramento
Winters
Woodland
Yuba
Marysville
Wheatland

Note: Our Foreclosure Defense work is primarily driven by phone, fax and email with you and the lenders.

As a consequence we are able to serve Arizona loan modification and foreclosure clients in the following Arizona cities:

Mesa
Glendale
Chandler
Scottsdale
Gilbert
Tempe
Peoria
Yuma
Surprise
Avondale
Flagstaff
Lake Havasu City
Goodyear
Sierra Vista
Prescott
Oro Valley
Bullhead City
Apache Junction
Prescott Valley
Casa Grande
El Mirage
Marana
Kingman
Buckeye
Fountain Hills
San Luis
Nogales
Florence
Douglas
Queen Creek
Maricopa
Payson
Sahuarita
Paradise Valley
Chino Valley
Eloy
Sedona
Cottonwood
Camp Verde
Show Low
Winslow
Somerton
Safford
Coolidge
Globe
Page
Bisbee
Tolleson
Youngtown
Wickenburg
South Tucson
Guadalupe
Holbrook
Snowflake
Cave Creek
Benson
Thatcher
Litchfield Park
Eagar
Pinetop-Lakeside
Taylor
Colorado City
Dewey-Humboldt
Willcox
St. Johns
Carefree
Clarkdale
Quartzsite
Parker
Superior
Williams
Clifton
Kear
Pima
Springerville
Star Valley
Gila Bend
Wellton
Miami
Huachuca City
Mammoth
Tombstone
Fredonia
Patagoni
Hayden
Dunca
Winkelman
Jerome

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NOTICE:

The foregoing information is general legal information only and shall not be relied upon as legal advice, or a substitution for legal advice.  If you have specific legal questions about your foreclosure case  you should seek out the advice of a real estate attorney.  In addition, the information posted above may not be 100% complete, accurate or up-to-date.  Law is always changing. The Law Offices of Steve Vondran is licensed to practice law in the state of Arizona and California and only seeks to solicit and serve Clients in these two states. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.  He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084. This is an advertisement and communication pursuant to State Bar Rules.  Please do not send us private or confidential information through any of our above-listed websites.   Sending us an email does not create an attorney-client relationship (only signing a legal retainer will do this).

(1) Designation in General.

An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought:

(A) an executor;

(B) an administrator;

(C) a guardian;

(D) a bailee;

(E) a trustee of an express trust;

(F) a party with whom or in whose name a contract has been made for another’s benefit; and

(G) a party authorized by statute.

(2) Action in the Name of the United States for Another’s Use or Benefit.

When a federal statute so provides, an action for another’s use or benefit must be brought in the name of the United States.

(3) Joinder of the Real Party in Interest.

The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.

(b) Capacity to Sue or be Sued.

Capacity to sue or be sued is determined as follows:

(1) for an individual who is not acting in a representative capacity, by the law of the individual’s domicile;

(2) for a corporation, by the law under which it was organized; and

(3) for all other parties, by the law of the state where the court is located, except that:

(A) a partnership or other unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws; and

(B) 28 U.S.C. §§ 754 and 959(a) govern the capacity of a receiver appointed by a United States court to sue or be sued in a United States court.

(c) Minor or Incompetent Person.

(1) With a Representative.

The following representatives may sue or defend on behalf of a minor or an incompetent person:

(A) a general guardian;

(B) a committee;

(C) a conservator; or

(D) a like fiduciary.

(2) Without a Representative.

A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem — or issue another appropriate order — to protect a minor or incompetent person who is unrepresented in an action.

(d) Public Officer’s Title and Name.

A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer’s name be added.

California Commercial Code Section 3602.

(a) Subject to subdivision (b), an instrument is paid to the extent payment is made

(1) by or on behalf of a party obliged to pay the instrument, and

(2) to a person entitled to enforce the instrument.

To the extent of the payment, the obligation of the party

obliged to pay the instrument is discharged even though payment is
made with knowledge of a claim to the instrument under Section 3306
by another person.
   (b) The obligation of a party to pay the instrument is not
discharged under subdivision (a) if either of the following applies:
   (1) A claim to the instrument under Section 3306 is enforceable
against the party receiving payment and (A) payment is made with
knowledge by the payor that payment is prohibited by injunction or
similar process of a court of competent jurisdiction, or (B) in the
case of an instrument other than a cashier's check, teller's check,
or certified check, the party making payment accepted, from the
person having a claim to the instrument, indemnity against loss
resulting from refusal to pay the person entitled to enforce the
instrument.
   (2) The person making payment knows that the instrument is a
stolen instrument and pays a person it knows is in wrongful
possession of the instrument.

3302.  (a) Subject to subdivision (c) and subdivision (d) of Section
3106, "holder in due course" means the holder of an instrument if
both of the following apply:
   (1) The instrument when issued or negotiated to the holder does
not bear such apparent evidence of forgery or alteration or is not
otherwise so irregular or incomplete as to call into question its
authenticity.
   (2) The holder took the instrument:

(A) for value, 

(B) in good faith,

(C) without notice that the instrument is overdue or has been
dishonored or that there is an uncured default with respect to
payment of another instrument issued as part of the same series,

(D) without notice that the instrument contains an unauthorized signature
or has been altered,

(E) without notice of any claim to the
instrument described in Section 3306, and

(F) without notice that any
party has a defense or claim in recoupment described in subdivision
(a) of Section 3305.
   (b) Notice of discharge of a party, other than discharge in an
insolvency proceeding, is not notice of a defense under subdivision
(a), but discharge is effective against a person who became a holder
in due course with notice of the discharge. Public filing or
recording of a document does not of itself constitute notice of a
defense, claim in recoupment, or claim to the instrument.
   (c) Except to the extent a transferor or predecessor in interest
has rights as a holder in due course, a person does not acquire
rights of a holder in due course of an instrument taken (1) by legal
process or by purchase in an execution, bankruptcy, or creditor's
sale or similar proceeding, (2) by purchase as part of a bulk
transaction not in ordinary course of business of the transferor, or
(3) as the successor in interest to an estate or other organization.
   (d) If, under paragraph (1) of subdivision (a) of Section 3303,
the promise of performance that is the consideration for an
instrument has been partially performed, the holder may assert rights
as a holder in due course of the instrument only to the fraction of
the amount payable under the instrument equal to the value of the
partial performance divided by the value of the promised performance.
   (e) If (1) the person entitled to enforce an instrument has only a
security interest in the instrument and (2) the person obliged to
pay the instrument has a defense, claim in recoupment, or claim to
the instrument that may be asserted against the person who granted
the security interest, the person entitled to enforce the instrument
may assert rights as a holder in due course only to an amount payable
under the instrument which, at the time of enforcement of the
instrument, does not exceed the amount of the unpaid obligation
secured.
   (f) To be effective, notice shall be received at a time and in a
manner that gives a reasonable opportunity to act on it.
   (g) This section is subject to any law limiting status as a holder
in due course in particular classes of transactions.

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,

or

(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. A person may be a person entitled to enforce the instrument
even though the person is not the owner of the instrument or is in
wrongful possession of the instrument.

The following code is used for a blog we are creating to discuss the California Hwang bankruptcy case:

3104.  (a) Except as provided in subdivisions (c) and (d),
"negotiable instrument" means an unconditional promise or order to
pay a fixed amount of money, with or without interest or other
charges described in the promise or order, if it is all of the
following:
   (1) Is payable to bearer or to order at the time it is issued or
first comes into possession of a holder.
   (2) Is payable on demand or at a definite time.
   (3) Does not state any other undertaking or instruction by the
person promising or ordering payment to do any act in addition to the
payment of money, but the promise or order may contain (i) an
undertaking or power to give, maintain, or protect collateral to
secure payment, (ii) an authorization or power to the holder to
confess judgment or realize on or dispose of collateral, or (iii) a
waiver of the benefit of any law intended for the advantage or
protection of an obligor.
   (b) "Instrument" means a negotiable instrument.

This code section is to be used for a blog post we are creating for the Hwang Chapter 7 bankruptcy case:

1201. (a) Unless the context otherwise requires, words or phrases
defined in this section, or in the additional definitions contained
in other divisions of this code that apply to particular divisions or
chapters thereof, have the meanings stated.

(21) “Holder,” means:

(A) 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; or

(B) the person in possession of a document of title if the goods
are deliverable either to bearer or to the order of the person in
possession.