MY COMMENTS ARE IN BOLD AND MERELY REPRESENT MY OPINION.

Chilton v. Federal Nat. Mortg. Ass’n, Slip Copy, 2009 WL 5197869 (E.D.Cal.)



ORDER RE PROPOSED ORDER TO SHOW CAUSE AND MOTION FOR TEMPORARY RESTRAINING ORDER



Plaintiff filed a complaint on December 16, 2009, alleging that Defendant, Federal National Mortgage Association, violated unspecified provisions of federal law within “Title 15 U.S.C. and/or Title 18 U.S.C.” because Defendant initiated non-judicial foreclosure on her property, located in Clovis, California, without possessing the genuine original note.” She advances no other bases for relief. 

Plaintiff has also filed an “order to show cause and motion for temporary restraining order,” in an attempt to block the foreclosure process.
To obtain temporary or permanent injunctive relief, a plaintiff must demonstrate likelihood of success on the merits.  Here, Plaintiff’s only legal theory has been resoundingly rejected as a basis for relief. It is well-established that non-judicial foreclosures can be commenced without producing the original promissory note.

THAT’S THE PART THAT HURTS. I SUPPOSE ANYONE WHO SHOWS UP ON FORECLOSURE DAY CLAIMING TO BE THE HOLDER OF THE LOAN (WHETHER IT IS MERS PRETENDING TO BE THE BENEFICIARY OR THE NOMINEE OF THE LENDER, THE LOAN SERVICER PRETENDING TO BE THE HOLDER OF THE LOAN OR SOME OTHER THIRD PARTY, LIKE WALLMART FOR EXAMPLE, CLAIMING TO BE THE HOLDER OF THE LOAN) GETS AN UNFETTERED RIGHT TO FORECLOSE, AND A FREE PASS FROM ANY JUDICIAL SCRUTINY WHATSOEVER.

The Court went on to state:

“Non-judicial foreclosure under a deed of trust is governed by California Civil Code Section 2924 which relevant section provides that a “trustee, mortgagee or beneficiary or any of their authorized agents” may conduct the foreclosure process.” California courts have held that the Civil Code provisions “cover every aspect” of the foreclosure process, (case cited), and are “intended to be exhaustive,”(another case cited). There is no requirement that the party initiating foreclosure be in possession of the original note. 

AFTER LEVELING THIS BLOW THE COURT CITED A FEW OTHER CASES THAT RESULTED IN THE SAME OUTCOME FOR PLAINTIFFS ASSERTING THE “PRODUCE THE NOTE” FORECLOSURE DEFENSE STRATEGY (OBVIOUSLY IN AN ATTEMPT TO TELL FUTURE LITIGANTS IN CALIFORNIA “GIVE UP TRYING TO VERIFY ANYONES CREDENTIALS”):

(1) See, e.g., Nool v. HomeQ Servicing, — F.Supp.2d —-, 2009 WL 2905745 (Sep. 4 2009) (”There is no requirement that the party initiating foreclosure be in possession of the original note.”); 

(2) Candelo v. NDEX West, LLC, 2008 WL 5382259, at *4 (E.D.Cal. Dec.23, 2008) (”No requirement exists under statutory framework to produce the original note to initiate non-judicial foreclosure.”);

(3) Putkkuri v. ReconTrust Co., 2009 WL 32567, *2 (S.D.Cal. Jan.5, 2009)  (”Production of the original note is not required to proceed with a non-judicial foreclosure.”); 

(4) Phillips v. MERS Mortgage Electronic Registration Systems, 2009 WL 3233865, 9 (E.D.Cal.2009); Vargas v. Reconstruction Co., 2008 U.S. Dist. LEXIS 100115, at *8-9 (E.D.Cal. Dec. 1, 2008).


WE HAVE PREVIOUSLY DISCUSSED THE KANSAS SUPREME COURT CASE THAT DISCUSSED THE ROLE OF MERS IN WHICH THE COURT SEEMED TO SUGGEST THAT MERS WAS NOT A BENEFICIARY UNDER THE DEED OF TRUST JUST BECAUSE THEY SAY THEY ARE IN THE DOCUMENT. THE COURT ADDRESSED PLAINTIFF’S RELIANCE ON THAT CASE:

“Plaintiff’s reliance on Landmark National Bank v. Kessler, 216 P.3d 158, 2009 Kan. LEXIS 834 (Kan.2009), is misplaced. That case concerned a company, Mortgage Electronic Registration Systems, Inc. (”MERS”), that acted on behalf of a lender to finalize a second mortgage on Kessler’s home. For procedural reasons not relevant to the present case, it became necessary for the Kansas court to determine whether MERS possessed an interest in the second mortgage, eventually concluding that under the specific facts of that case, MERS was more like an agent than a buyer/owner of the note.”

THE COURT CONTINUED:

“In reaching this conclusion, the Landmark court noted: 
Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable.  “The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo.App.2009).”


THE COURT CHIMED IN ON THIS LEGAL REQUIREMENT:

“This language merely stands for the proposition that one possessing the deed of trust cannot foreclose on a mortgage without (1) also possessing some interest in the promissory note, or (2) obtaining permission to act as agent of the note-holder. This has nothing whatsoever to do with possession of the “original” promissory note document, i.e., the original piece of paper with original signatures, etc., the possession of which is not required to initiate non-judicial foreclosure in California. Because Plaintiff cannot possibly establish any likelihood of success on her current claim for relief, it is not necessary to set her motion for temporary injunctive relief for hearing. Her motion is DENIED. IT IS SO ORDERED.”


There you have it friends, as we have been telling callers to our office seeking foreclosure defense, DO NOT RELY ON “PRODUCE THE NOTE” AS A SILVER BULLET FORECLOSURE DEFENSE THAT IS GOING TO STOP YOUR FORECLOSURE WITH AN INJUNCTION AND GET YOUR HOUSE FOR FREE. IF THERE ARE GLARING IRREGULARITIES, AND OTHER LEGAL GROUNDS TO GET YOU INTO COURT VALIDLY, THEN YOU MAY WANT TO TAG ON THIS CLAIM AND SEE IF YOU CAN GET A DIFFERENT OUTCOME FROM A DIFFERENT JUDGE, BUT SUFFICE IT TO SAY AS A STAND-ALONE LEGAL THEORY, THERE IS SIMPLY NOT MUCH TEETH TO THE THEORY. MOST OF THE CASES WHERE YOU HEAR OF SOME SUCCESS COME FROM FLORIDA AND OHIO AND OTHER “JUDICIAL FORECLOSURE” STATES WHERE THE LENDER IS FORCED TO FILE IN COURT TO START THE FORECLOSURE PROCESS. IN THESE CASES, THE ISSUE BECOMES A QUESTION OF “STANDING” AND “REAL PARTY IN INTEREST.” THERE IS ALSO THE BANKRUPTCY ANGLE THAT WE WILL BE EXPLORING IN GREATER DETAIL IN FUTURE POSTS.

____________________________________________________________________________________________________________________________________________________________________________

In a similar case, NEWBECK v. WASHINGTON MUTUAL BANK, Slip Copy, 2010 WL 291821 (N.D.Cal.), the Court essentially held the same way when a Plaintiff tried to argue “produce the original note” as a strategy to set aside a foreclosure sale that had already occurred. In this case the Court first discussed the dreaded issue of challenging a foreclosure sale that had already been finalized, and the Court’s comments shed light on how one-sided the laws are when you dare take on a “lender” in Court

“Plaintiffs ask the Court to set aside Washington Mutual’s foreclosure sale of their property. They assert that Washington Mutual did not have possession of the original mortgage note or the deed of trust under which it was secured and, as a result, it was not entitled to foreclose. A plaintiff seeking to set aside a foreclosure sale must first allege tender of the amount of the secured indebtedness. Abdallah v. United Savings Bank, 43 Cal.App.4th 1101, 1109, 51 Cal.Rptr.2d 286 (1996) (citing FPCI RE-HAB 01 v. E & G Investments, Ltd., 207 Cal.App.3d 1018, 1021-22, 255 Cal.Rptr. 157 (1989)); Smith v. Wachovia, 2009 WL 1948829, at *3 (N.D.Cal.). Without pleading tender or the ability to offer tender, a plaintiff cannot state a cause of action to set aside a foreclosure sale. Karlsen v. Am. Savings & Loan Ass’n, 15 Cal.App.3d 112, 117, 92 Cal.Rptr. 851 (1971) (citing Copsey v. Sacramento Bank, 133 Cal. 659, 662 (1901)); Smith, 2009 WL 1948829, at * 3 (citing Karlsen ). Plaintiffs allege neither tender nor their ability to offer tender. Thus, they do not state a claim to set aside the foreclosure sale.

THIS MEANS, IF YOU ARE CHALLENGING A FORECLOSURE SALE AND SEEK TO SET IT ASIDE (ON WHATEVER PROPER GROUNDS YOU MAY HAVE) YOU NEED TO AT LEAST ALLEGE A WILLINGNESS AND ABILITY TO TENDER. IF ALL ELSE FAILS, YOU MAY WANT TO TELL THE JUDGE THAT YOU WILL TENDER THE FULL BALANCE DUE AFTER YOU COLLECT ON YOUR FRAUD JUDGEMENT. SOMETIMES THIS MAY BE ALL YOU HAVE WHEN YOU ARE WAY UPSIDE DOWN ON YOUR PROPERTY.

THE COURT THEN WENT ON TO DISCUSS WHAT MIGHT HAPPEN EVEN IF YOU COULD TENDER:

“Even if they alleged tender, the basis on which they appear to seek relief does not support their claim. In California, there is no requirement that a trustee produce the original promissory note prior to a non-judicial foreclosure sale. See, e.g., Pantoja v. Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1186 (N.D.Cal.2009); Smith, 2009 WL 1948829, at *3; Neal v. Juarez,2007 WL 2140640, *8 (S.D.Cal.) (citing R.G. Hamilton Corp. v. Corum, 218 Cal. 92, 94, 97, 21 P.2d 413 (1933); Cal. Trust Co. v. Smead Inv. Co., 6 Cal.App.2d 432, 435, 44 P.2d 624 (1935)).California Civil Code Sections 2924 through 2924k ”provide a comprehensive framework for the regulation of a non-judicial foreclosure sale pursuant to a power of sale contained in a deed of trust.” Knapp v. Doherty, 123 Cal.App.4th 76, 86, 20 Cal.Rptr.3d 1 (2004) (quoting Moeller v. Lien, 25 Cal.App.4th 822, 830, 30 Cal.Rptr.2d 777 (1994)). Knapp explains the non-judicial foreclosure process as follows: Upon default by the trustor [under a deed of trust containing a power of sale], the beneficiary may declare a default and proceed with a nonjudicial foreclosure sale. The foreclosure process is commenced by the recording of a notice of default and election to sell by the trustee. After the notice of default is recorded, the trustee must wait three calendar months before proceeding with the sale. After the 3-month period has elapsed, a notice of sale must be published, posted and mailed 20 days before the sale and recorded 14 days before the sale. Knapp, 123 Cal.App.4th at 86, 20 Cal.Rptr.3d 1 (citation omitted).

I SUPPOSE YOU ARE NEVER ALLOWED TO ASK WHO THE “BENEFICIARY” IS OR MAKE ANYONE PROVE THAT POINT BEFORE THEY TAKE YOUR HOUSE. ARE YOU ALSO ALLOWED TO ASK WHO THE BENEFICIARY IS FOR PURPOSES OF COMPLIANCE WITH CALIFORNIA CIVIL CODE SECTION 2923.5 AND THE DECLARATION THAT IS MADE UNDER THIS SECTION? WE WILL DISCUSS THIS ISSUE IN ANOTHER BLOG POST.

ANYWAY, I DIGRESS, THE COURT CONTINUED:

“A properly conducted nonjudicial foreclosure sale constitutes a final 13 adjudication of the rights of the borrower and lender.” Plaintiffs have not pointed to controlling authority to show that this statutory scheme requires production of the original promissory note or deed of trust. Thus, even if they alleged tender, to the extent that they allege irregularities in the foreclosure sale based on Washington Mutual’s failure to produce the original promissory note or deed of trust, they do not state a claim.

AS DISCUSSED ABOVE, ONLY OUT OF STATE CLAIMS FOR PRODUCE THE NOTE WERE CITED (THESE COME FROM THE JUDICIAL FORECLOSURE STATES).

“Plaintiffs cite various out-of-state cases, which apply non-California law to judicial foreclosure actions. See In re Foreclosure Actions, 2007 WL 4034554 (N.D.Ohio); In re Foreclosure Cases, 2007 WL 3232430 (N.D.Ohio); Landmark Nat’l Bank v. Kessler, 289 Kan. 528, 216 P.3d 158 (2009); U.S. Bank Nat’l Ass’n v. Ibanez, 2009 WL 3297551 (Mass.Land Ct.). Because these cases do not apply California’s non-judicial foreclosure sale statutes, they do not support Plaintiffs’ position.”
SO THERE YOU HAVE IT, MORE PROOF OF THE MOUNTAIN YOU MUST CLIMB TO GET TO THE PROMISED LAND. AS WE TELL OUR CLIENTS, FORECLOSURE DEFENSE IS NOT AN EASY BUSINESS.

_____________________________________________________________

KEYWORDS: CALIFORNIA FORECLOSURE DEFENSE LAWYER / PHOENIX FORECLOSURE DEFENSE LAWYER / ARIZONA LOAN MODIFICATION LAWYER / PRODUCE THE NOTE FORECLOSURE DEFENSE STRATEGY / SCOTTSDALE LOAN MODIFICATION / PHOENIX BANKRUPTCY LAWYER / PHOENIX BK ATTORNEY / NEWPORT BEACH FORECLOSURE LAWYER / INJUNCTION TO STOP FORECLOSURE / TRO / LIS PENDENS / SB1137 / FILE CHAPTER 7 BANKRUPTCY / MERS / SECURITIZED LOANS / QWR.

_____________________________________________________________

AUTHORS NOTE: IF THE CALIFORNIA FORECLOSURE STATUTES GOVERN THE FORECLOSURE SALE PROCESS, AND IF NOTHING ELSE REALLY MATTERS, THEN YOU NEED TO TAKE A CLOSE LOOK AT WHETHER THAT STATUTE IS BEING COMPLIED WITH WHEN LOOKING TO OBTAIN AN INJUNCTION TO HALT FORECLOSURE.

The following article discusses general legal information on the topic of elder abuse and foreclosure defense. This article contains general legal information and not specific legal advice. In addition, the article, cases, and analysis may not be complete and comprehensive or up-to-date. Steve Vondran, Esq. is licensed to practice law in California and Arizona. He practices law in the area of Real Estate, Bankruptcy, and Foreclosure Defense. He can be reached at steve@vondranlaw.com.

INTRODUCTION TO ELDER ABUSE AND PREDATORY LENDING

The elderly population (over 65 years of age) is one of the fastest growing segments of society. Medical science is helping people live longer, more productive lives. However, it is fairly common knowledge that as each of us grow older, whether we like it or not, we lose some of our mental and physical capacities.

In the context of mortgage loans, it may mean that elderly persons become less able to comprehend sophisticated financial products such as Option Arm Loans (pay options ARM / “pick-a-pay loans) and Reverse Mortgages and other adjustable rate mortgage and interest-only loan products that differ from the traditional 30 year fixed rate mortgage most California homeowners grew up on.

The California Attorney General’s Office has issued a guide for “financial elder abuse.” In this guide, (which you can find at the Attorney General website), they state:

“Financial elder abuse is the theft of money or property from an elder….it can be as simple as taking money from a wallet and as complex as manipulating a victim into turning over property to an abuser.”

The publication goes on to state: “This form of abuse can be devastating because an elder victim’s life savings can disappear in the blink of an eye, leaving them unable to provide for their needs and afraid of what an uncertain tomorrow will bring.”

The guide discusses “recognizing the warning signs” and states: “while financial elder abuse can take many forms, the most widespread abuses include telemarketing fraud, identity theft, predatory lending, and home improvement and estate planning scams.” Telemarketing fraud could come in the form of dealing with a loan broker over the telephone who attempts to coerce an elderly homeowner into believing a certain type of loan (ex. An Option Arm Loan) is the best for the homeowner (when in fact the borrower has no ability to repay a loan that builds negative amortization and which is likely to “recast” in the near future), or falsely trumping up a homeowners income in order to ensure a loan is funded and the broker is paid.

In the section discussing “Predatory Lending” the publication states:

“More than 80% of Americans aged 50 and older are homeowners. Elders are often the target of unscrupulous lenders who pressure them into high-interest rate loans that they may not be able to repay. Older homeowners are often persuaded to borrow money through home equity loans for home repairs, debt consolidation, or to pay health care costs. These loans are sold as “miracle financial cure,” and homeowners are devastated to find out they cannot afford to pay off the loans, and as a result, may lose their home. Often these loans are packed with excessive fees, costly credit insurance, pre-payment penalties, and balloon payments.”

Even California Banker’s Association (an association of California Banker’s) discusses the concept of elder financial abuse on its website – www.calbankers.com – by stating “Common elder abuse scenarios – obtaining money or property by undue influence, misrepresentation, or fraud….” This suggests that even Banker’s in California realize that elder abuse is “common” and that it is wrongful. But what is to be done about it? What is to be done when lenders and brokers advise and “steer” and influence elder homeowners into entering into loan transactions with sophisticated non-traditional loan products and artificially falsify income documentation because they know there is no true ability to repay the loan, much less qualify for it in the first place.

This is precisely the scenario in many cases that we see in our role as foreclosure defense counsel for elderly homeowners facing foreclosure or facing eviction following foreclosure. It is against this back-drop that we must act, to what extent will the California Courts exercise their inherent equitable power to protect elderly homeowners (over 65 years of age at the signing of the loan documents or an elder dependent adult) where the loan product is seen to be the product of fraud or deception (such as steering, false trumping of income, intentional misrepresentations, or other fraudulent and deceptive business practices) perpetrated by predatory brokers, lenders and loan servicers who seek profit over fiduciary duty?

CALIFORNIA ELDER ABUSE LAW

•A.    California Elder Abuse Statute

CALIFORNIA CODES

WELFARE AND INSTITUTIONS CODE

SECTION 15600-15601

 INTRODUCTION SECTION

 15600. (a) The Legislature recognizes that elders and dependent

adults may be subjected to abuse, neglect, or abandonment and that

this state has a responsibility to protect these persons.

 (b) The Legislature further recognizes that a significant number

of these persons are elderly. The Legislature desires to direct

special attention to the needs and problems of elderly persons,

recognizing that these persons constitute a significant and

identifiable segment of the population and that they are more subject

to risks of abuse, neglect, and abandonment.

 (c) The Legislature further recognizes that a significant number

of these persons have developmental disabilities and that mental and

verbal limitations often leave them vulnerable to abuse and incapable

of asking for help and protection.

 (d) The Legislature recognizes that most elders and dependent

adults who are at the greatest risk of abuse, neglect, or abandonment

by their families or caretakers suffer physical impairments and

other poor health that place them in a dependent and vulnerable

position.

 (e) The Legislature further recognizes that factors which

contribute to abuse, neglect, or abandonment of elders and dependent

adults are economic instability of the family, resentment of

caretaker responsibilities, stress on the caretaker, and abuse by the

caretaker of drugs or alcohol.

 (f) The Legislature declares that this state shall foster and

promote community services for the economic, social, and personal

well-being of its citizens in order to protect those persons

described in this section.

 (g) The Legislature further declares that uniform state

guidelines, which specify when county adult protective service

agencies are to investigate allegations of abuse of elders and

dependent adults and the appropriate role of local law enforcement is

necessary in order to ensure that a minimum level of protection is

provided to elders and dependent adults in each county.

 (h) The Legislature further finds and declares that infirm elderly

persons and dependent adults are a disadvantaged class, that cases

of abuse of these persons are seldom prosecuted as criminal matters,

and few civil cases are brought in connection with this abuse due to

problems of proof, court delays, and the lack of incentives to

prosecute these suits.

 (i) Therefore, it is the intent of the Legislature in enacting

this chapter to provide that adult protective services agencies,

local long-term care ombudsman programs, and local law enforcement

agencies shall receive referrals or complaints from public or private

agencies, from any mandated reporter submitting reports pursuant to

Section 15630, or from any other source having reasonable cause to

know that the welfare of an elder or dependent adult is endangered,

and shall take any actions considered necessary to protect the elder

or dependent adult and correct the situation and ensure the

individual’s safety.

 (j) It is the further intent of the Legislature in adding Article

8.5 (commencing with Section 15657) to this chapter to enable

interested persons to engage attorneys to take up the cause of abused

elderly persons and dependent adults.

 DEFINITIONS SECTION

 15610.07. “Abuse of an elder or a dependent adult” means either of

the following:

(a) Physical abuse, neglect, financial abuse, abandonment,

isolation, abduction, or other treatment with resulting physical harm

or pain or mental suffering.

15610.23. (a) “Dependent adult” means any person between the ages

of 18 and 64 years who resides in this state and who has physical or

mental limitations that restrict his or her ability to carry out

normal activities or to protect his or her rights, including, but not

limited to, persons who have physical or developmental disabilities,

or whose physical or mental abilities have diminished because of

age.

15610.25. “Developmentally disabled person” means a person with a

developmental disability specified by or as described in subdivision

(a) of Section 4512.

 15610.27. “Elder” means any person residing in this state, 65 years

of age or older.

15610.30. (a) “Financial abuse” of an elder or dependent adult

occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or

personal property of an elder or dependent adult for a wrongful use

or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or

retaining real or personal property of an elder or dependent adult

for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists

in taking, secreting, appropriating, obtaining, or retaining, real

or personal property of an elder or dependent adult by undue

influence, as defined in Section 1575 of the Civil Code.

(b) A person or entity shall be deemed to have taken, secreted,

appropriated, obtained, or retained property for a wrongful use if,

among other things, the person or entity takes, secretes,

appropriates, obtains, or retains the property and the person or

entity knew or should have known that this conduct is likely to be

harmful to the elder or dependent adult.

(c) For purposes of this section, a person or entity takes,

secretes, appropriates, obtains, or retains real or personal property

when an elder or dependent adult is deprived of any property right,

including by means of an agreement, donative transfer, or

testamentary bequest, regardless of whether the property is held

directly or by a representative of an elder or dependent adult.

UNDUE INFLUENCE FOR ELDER ABUSES PURPOSES: (AS REFERENCED ABOVE)

1575. Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another,

or who holds a real or apparent authority over him, of such

confidence or authority for the purpose of obtaining an unfair

advantage over him;

2. In taking an unfair advantage of another’s weakness of mind;

or,

3. In taking a grossly oppressive and unfair advantage of another’s

necessities or distress.

 WRIT OF ATTACHMENT

 15657.01. Notwithstanding Section 483.010 (SEE BELOW) of the Code of Civil

Procedure, an attachment may be issued in any action for damages

pursuant to Section 15657.5 for financial abuse of an elder or

dependent adult, as defined in Section 15610.30. The other provisions

of the Code of Civil Procedure not inconsistent with this article

shall govern the issuance of an attachment pursuant to this section.

In an application for a writ of attachment, the claimant shall refer

to this section. An attachment may be issued pursuant to this section

whether or not other forms of relief are demanded.

 483.010. (a) Except as otherwise provided by statute, an attachment

may be issued only in an action on a claim or claims for money, each

of which is based upon a contract, express or implied, where the

total amount of the claim or claims is a fixed or readily

ascertainable amount not less than five hundred dollars ($500)

exclusive of costs, interest, and attorney’s fees.

(b) An attachment may not be issued on a claim which is secured by

any interest in real property arising from agreement, statute, or

other rule of law (including any mortgage or deed of trust of realty

and any statutory, common law, or equitable lien on real property,

but excluding any security interest in fixtures subject to Division 9

(commencing with Section 9101) of the Commercial Code). However, an

attachment may be issued where the claim was originally so secured

but, without any act of the plaintiff or the person to whom the

security was given, the security has become valueless or has

decreased in value to less than the amount then owing on the claim,

in which event the amount to be secured by the attachment shall not

exceed the lesser of the amount of the decrease or the difference

between the value of the security and the amount then owing on the

claim.

(c) If the action is against a defendant who is a natural person,

an attachment may be issued only on a claim which arises out of the

conduct by the defendant of a trade, business, or profession. An

attachment may not be issued on a claim against a defendant who is a

natural person if the claim is based on the sale or lease of

property, a license to use property, the furnishing of services, or

the loan of money where the property sold or leased, or licensed for

use, the services furnished, or the money loaned was used by the

defendant primarily for personal, family, or household purposes.

(d) An attachment may be issued pursuant to this section whether

or not other forms of relief are demanded.

•B.     California Elder Abuse Case-Law

                                                          REPORTED DECISIONS

•1.      Zimmer v. Nawabi, 566 F. Supp.2d 1025, 2008 WL 7123093, (2008). In this case a Plaintiff elderly homeowner (79 years old) filed a lawsuit against a BROKER for elder abuse and a host of other legal claims including breach of fiduciary duty. The gravamen of Plaintiff’s complain was that the Broker lied about the amount of cash-out proceeds that would be tendered to Plaintiff at the close of the loan., and lied about the monthly payment amount and undisclosed Yield Spread Premium (YSP), and other non-disclosure of material terms of the loan. There was also an issue of a fraudulent release of legal claims Defendants fraudulently created and Plaintiff was instructed to sign the loan documents without reading them. This financial elder abuse case was also brought in the context of Plaintiff’s house facing foreclosure.

The Defendants argued there was no financial abuse or elder abuse and sought to dismiss Plaintiff’s claims. The Court failed to dismiss such claims and discussed the claim of Elder Abuse by stating: “Zimmer has a claim for financial elder abuse pursuant to Welfare and Institutions Code Section 15657 et seq. against Golden State (the Broker) because Golden State defrauded Zimmer out of the equity in her house while she was over 65 years old. She is entitled to actual and punitive damages and attorney fees.”

 In regard to the Elder Abuse cause of action, the Court also stated: “Financial elder abuse is defined in subsection 15610.30(a), which provides: “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following: (1) takes, secretes, appropriates or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud or both. (2) Assists in taking, secreting, appropriating or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud or both.

The court went on to hold that under Cal. Welf. & Inst. Code Section 15610.30(a)(1)-(2), “a person or entity is deemed to have taken, secreted, appropriated or retained property for a wrongful use, if among other things, the the person or entity takes, secretes, appropriates, or retains possession of property in bad faith. Id Section 15610.30(b). A person or entity is deemed to have acted in bad faith if the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his representative. Id Section 15610.30(b)(1). Lastly, a persona should have known of such right “if, on the basis of the information received by the person or entity or the person or entity’s authorized third party, or both, it is obvious to a reasonable person that the elder has such a right. The Court determined that the Broker’s obtaining of fees (personal property) in the amount of $10,700 was wrongfully obtained under these circumstances indicating false statements and misrepresentations.

The Court in Zimmer also addressed the issue of breach of fiduciary duty. To this issue the court stated: “A mortgage broker breaches his fiduciary duty to borrower under California law if he provides materially misleading and incomplete information regarding the terms of the loan, even if correct terms are in the loan documents and borrower does not read documents.” In addition the Court stated, “when brokering loans for borrower of modest means and limited experience in financial affairs, mortgage broker has a duty of oral disclosure of material loan terms and counseling, which require him to disclose orally the true rate of interest, penalty for late payments, and other material terms of the loan. The court found the elderly homeowner/borrower to be of limited means and lacking financial savvy in financial matters. The court pointed to the elderly homeowner’s “14 years of education.”

The court went on to state that: “Under California law, a mortgage loan broker acts in a fiduciary capacity that “not only imposes on him the duty of acting in the highest good faith toward his principal, but precludes the agent from obtaining any advantage over the principal. The duty obligates brokers to make a full and accurate disclosure of the terms of a loan to borrowers and always act in utmost good faith toward their principles.”

Finally, the Zimmer court addressed “enhanced remedies” under California’s elder abuse statute. “To utilize the Elder Abuse Act’s enhanced remedies, a plaintiff must prove by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse. Id Section 15610.30(b)(2). A preponderance of the evidence standard governs a Plaintiff’s ability to recover “all other remedies otherwise provided by law.”

NOTE: Although Zimmer held that a loan broker (as opposed to a lender), who owed the borrower a fiduciary duty, was liable for elder financial abuse, such cause of action may also extend to a “financial institution” or lender who may or may not owe a fiduciary duty as discussed in the Toscano case below.

UNREPORTED DECISIONS

Note: There are a fair amount of unreported decisions I found dealing with financial elder abuse. To me, it means the Courts may be willing to help out a senior, and yet for various reasons, the court may not want the case reported.

(1) Darone Case (2001 WL 34144398). In this case the Court set forth the requirements to prove a prima facie case for financial elder abuse. Specifically, the Court held:

“Here, then, in order to state a claim of actionable financial abuse…..Plaintiff must allege: (a) that she is an “elder”, (b) that Defendant “took, secreted, appropriated her “money or property”, © that Defendant did so “to a wrongful use or intent to defraud, or both” and (d) that in doing so, Defendant was guilty of “recklessness, oppression, fraud or malice.” The Court held in Darone that there was no fiduciary duty required to state a claim for elder abuse despite defendants contentions.

•2.      Toscano v. Ameriquest Mortgage Company (non-reported in F.Supp 2d, 2007 WL 3125023 (E.D. Cal), (2007). In this case, a lender (as opposed to a loan broker) sought to dismiss financial elder abuse claims levied against him. The lender argued they owed no fiduciary duty to the borrower-homeowner, and therefore could not be liable for elder financial abuse. In Toscano, Plaintiff was a 65 year man who spoke only english. Although the loan was negotiated in Spanish, the loan documents were written in English. Defendant advised Plaintiff that the loan at issue (a loan at or below 6.3% interest) was the best loan for Plaintiff. The documents Plaintiff signed had loan terms of 7%. The Court held that a fiduciary relationship was not required to state a claim for financial elder abuse under California law. The Cout also went on to set forth a fiduciary duty test that would create a duty of care, even to lenders and financial institutions (as opposed to brokers) and set forth the test as follows:

“In California, the test for determining whether a financial institution owes a duty of care to the borrower-client involves the balancing of carious factors, among which are: (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to him, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendants conduct and the injury suffered, (5) the moral blame attached to the defendants conduct, and (6) the policy or preventing future harm.” The Court stated “A FIDUCIARY RELATIONSHIO CAN ARISE WHERE THE LENDER BECOMES HEAVILY ENTANGLED WITH THE BORROWER.”

Although this case is not citeable, it does given reason to believe that the Courts may so hold this way in any future case, allowing a borrower to bring a claim of financial elder abuse against both a broker and the lender. The Lender could be seen as “assisting” financial elder abuse in these types of cases. More problematic is the case of the “holder in due course” lender who will claim no liability whatsoever for acts of elder abuse that may have been committed at the loan origination stage. See below for more on holder in due course defense.

 LEGAL ARGUMENTS SEEKING TO ENJOIN FORECLOSURE OF LOANS ORIGINATED AS THE PRODUCT OF ELDER ABUSE

•1.      A LENDER OR LOAN SERVICER SHOULD NOT BE PERMITTED TO FORECLOSE ON A PREDATORY ELDER ABUSE LOAN (THE FRUITS OF THE POISOINOUS TREE) WHERE THE RESULT IS TO LEAVE AN ELDERLY PERSON WITHOUT SAFE AND AFFORDABLE HOUSING SOLUTIONS.

It is common knowledge that many loan servicers may prefer foreclosing on homes, rather than modifying loans, due to financial incentives often provided for in various pooling and servicing agreements. These loan servicers likely enjoyed making money off the servicing of these loans that are the product of elder abuse, as well as other predatory loans such as pay option ARM loans (Pick-a-pay negative amortization loans).

This is a strong public policy argument to be made that a Court should step in and exercise its equitable powers to prevent a foreclosure where an elderly California homeowners is about to be foreclosed upon and kicked out of their homes and thrust into an uncertain future.

As discussed below, California Business and Professions Code Section 17203 grants Courts the express authority “as may be necessary to restore to any person in interest, any money or property, real or personal, which may have been acquired by means of such unfair competition.”

Where a violation of the California Elder abuse statutes can be shown, this violation can serve as an underlying violation sufficient for California Business and Professions Code Section 17200 purposes (17200 prohibits acts of unfair competition such as violations of other statutes), and the Court should restore the loan proceeds and loan payments back to Plaintiff – similar to a TILA rescission claim and/or return any foreclosure property back to the homeowner. These are just an example of the types of arguments that could and should be made to the judge.

The other option, of allowing the elderly victim to be “kicked to the curb” should not be permitted even where a subsequent lender claims it is a “holder in due course.” The subsequent lenders “create the marketplace” for these types of loans, and “enjoy the fruits of the poisonous tree.” But for their secondary market purchases of these types of predatory loans, the original lenders (who would be forced to hold their own garbage loans) would not abuse California elderly homeowners who would have direct recourse against them.

•2.      THE COURTS SHOULD PROTECT CALIFORNIA ELDERLY HOMEONWERS WHO WERE STEERED INTO COMPLEX AND NON-TRADITIONAL FINANCIAL PRODUCTS AND SHOULD DEMAND THAT THE LENDER OR LOAN SERVICER SHOW GOOD CAUSE BEFORE PURSUING A JUDICIAL FORECLOSURE SALE OR AN UNLAWFUL DETAINER ACTION (FOLLOWING A FORECLOSURE SALE THAT WAS NOT STOPPED).

As referenced in this memorandum, the State of California protects elderly citizens (those over 65) from fraudulent, oppressive, wrongful and harmful acts that threaten to cause irreparable harm. In the Case of Hernandez v. Stabach, 145 Cal.App.3d 309, 193 Cal. Rptr. 350 (1983), the Court granted a preliminary injunction preventing Defendant (a Landlord accused of retaliatory eviction – an “unfair” and “illegal” act under California Business and Professions Code Section 17200) from filing an unlawful detainer action to evict the non-rent paying tenant until such time as the Defendant Landlord appeared in the Superior Court and obtained leave of Court, (by showing good cause for the eviction) which would permit such unlawful detainer action to be filed. In Stabach, the Court held:

“The challenged portion of the preliminary injunction does not enjoin defendant from initiating unlawful detainer actions against any Plaintiff for nonpayment of rent……or deny him access to the courts. Rather, it requires only that he obtain leave of Superior Court to institute such actions in the municipal court. The injunction does not prohibit the institution of unlawful detainer actions if a showing of good cause is made.”

The Court went on to state:
“California Business and Professions Code Section 17203 provides: Any person performing or proposing to perform an act of unfair competition within this state may be enjoined in any court of competent jurisdiction. THE COURT MAY MAKE SUCH ORDERS OR JUDGEMENTS, INCLUDING THE APPOINTMENT OF A RECEIVER, AS MAY BE NECESSARY to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest, any money or property, real or personal, which may have been acquired by means of such unfair competition.”

The Court finalized its opinion by stating:
“We conclude that it was within the court’s inherent equity power and the power conferred upon it by Business and Professions Code Section 17203 to enjoin defendant from evicting or attempting to evict any plaintiff without first obtaining permission from the court. By requiring defendant to seek leave of court, the trial court sought to MONITOR AND PREVENT DEFENDANT’S RETALIATORY ATTEMPTS TO EVICT TENANTS THAT ASSERT THEIR RIGHTS.”

The Stabach case suggests the courts have the express and inherent power to assist victims of elder financial abuse in the State of California. The question remains, will, and to what extent are the Courts willing to go to in order to protect past victims of financial elder abuse in the context of mortgage loans (hidden fees, bait and witch tactics, fraud in the factum, nondisclosure of material loan terms, false and fraudulent trumping of income, steering clients into the wrong financial product etc.)? In each of these scenarios the broker and lender (and subsequent investor of the loan on the secondary market) each enjoy handsome profits, fees and enjoy the fruits of loan origination at the elder homeowners expense and at time, to the loss of their property.

POTENTIAL PITFALLS TO ASSERTING A PREDATORY LENDING CLAIM, IN THE FORM OF AN ELDER ABUSE VIOLATION, IN THE CONTEXT OF A FORECLOSURE DEFENSE CASE

•1.      Holder in Due Course: Where a company purchases a loan on the secondary market (i.e. they were not the originator of the loan, they will often claim they are a “holder in due course” and cannot be held liable for fraud, deception, elder abuse, etc. at the origination stage of the loan. This is a good argument in most cases. If a party can successfully assert holder in due course status, there are limited claims a party can make against them. We have addressed the issue of holder in due course status in other blog posts. Just google “vondran holder in due course” and you should be able to find it. Just know this is a potential defense in every predatory lending case, including elder abuse cases. The trick is to show the secondary lender is not a holder in due course and not entitled to HDC protection against liability.

•2.      Federal Preemption: As if matters weren’t bad enough, and the chips stacked in favor of the powerful lenders and their mighty lobbiest in D.C., there is another doctrine of law that seeks to aid lenders in battling predatory lending claims like elder abuse. In many cases, the lenders or loan servicers who are named as defendants in lawsuits will claim the Plaintiff-homeowners claims are pre-empted by Federal law. One of these laws is HOLA. Again, we have another article that addresses this issue. Google “vondran pre-emption predatory lending.” Again, for purposes of this article, be aware that there are defenses that will be raised to every predatory lending claim you seek to raise. That is the battle folks.

                                                                    CONCLUSION

Elders over 65 are one of the fastest growing segments of our society. People are living longer. That being said, many seniors grew up on 30 year fixed mortgages and are now being enticed with exotic and toxic loan products such as negative amortization loans, reverse mortgages, interest-only products, and adjustable rate mortgage products. Seniors can be particularly vulnerable when dealing with greedy and financially savvy loan brokers and lenders who seek profits over fiduciary duty and a sense of fair play. Someone has to protect seniors who are victimized in the predatory loan process. It is simply unfair to treat seniors in California like every other borrower. Seniors often survive on a fixed income, and if they are forced to the streets by Courts and Financial institutions that could care less about their well-being we can truly admit we are devolving as a society. The California elder abuse law should be used to prevent foreclosure where brokers, lenders, servicers, and other financial institutions don’t play by the rules and abuse seniors who deserve protection. The Courts must take a case-by-case approach and enjoin wrongful foreclosure and return property to the Senior where elder abuse is affirmatively shown to have been perpetrated.

 ELDER ABUSE LINKS

 National Center on Elder Abuse: www.ncca.aoa.gov

 National Clearinghouse on Abuse Later in Life: www.ncall.com

 Senior Care Attorney: www.SeniorCareAttorneys.com

 National Academy of Elder Law Attorneys: www.naela.org

 OptionArmLawyer: www.OptionArmLawyer.com

 RescindMyLoan: www.RescindMyLoan.net

  OTHER FORECLOSURE DEFENSE AND BANKRUPTCY LINKS

 Foreclosure Defense Show: www.LoanModRadio.com

 BK Attorney Steve: www.BKAttorneyS.net

 Foreclosure Defense Resource Center: www.ForeclosureDefenseResourceCenter.com

 Trial Plan Fraud: www.TrialPlanFraud.com

 Vondran Law: www.VondranLaw.com and www.Vondranlegal.com

 Vondran Blogs: http://activerain.com/attorneysteve

 Foreclosure Defense Radio Show (Loan Modification Radio) www.LoanModRadio.com

 LOOKING FOR A LAWYER TO TAKE YOUR CASE ON A CONTINGENCY FEE BASIS?  WE TAKE WORLD SAVINGS AND WACHOVIA LOANS ON CONTINGENCY.  TO FIND A LAWYER WHO MAY TAKE A CASE ON CONTINGENCY FEE BASIS IN YOUR AREA SEARCH THE DATABASE AT WWW.CONTINGENCYCASE.COM.