California Court Pierces the Curtain of Secrecy on WAMU Deals

Stan Burman:

United States District Judge in the Northern District of California in case of Burke v.JPMorgan Chase Bank, N.A. rules that if a big bank such as WAMU had sold the loan before it then sold the loan to a trust or anyone else, then the entire chain is void. Another win for a California homeowner is always good news to me.

Originally posted on Livinglies's Weblog:

For further information please call 954-495-9867 or 520-405-1688

NOTE: My new administrative assistant is Susan Rose. Danielle and Geordan no longer work for livinglies or my law practice.

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Hat Tip to Dan Edstrom, DTC Systems, our senior forensic analyst.

This decision finally brings the real issue to the forefront: who, if anyone, actually has the legal status of creditor or the right to claim ownership of the debt, loan, note or mortgage? In this case the Court correctly centered on the real issue: if WAMU had ALREADY sold the loan before it “sold” the loan to a trust or anyone else, then the entire chain is not just defective, or corrupted, it is void. And then you have quiet title, wrongful foreclosure and probably RICO although that does not seem to be in the pleadings for this case.

Lawyers take note: This Judge still doesn’t like the rambling shotgun…

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6th Circuit Reverses Trial Court on RICO Against BofA, Law firm, et al

Stan Burman:

The Sixth Circuit Court of Appeals has issued a decision in which they reversed the trial court and allowed a RICO lawsuit to proceed against Bank of America and a law firm. The decision also stated that if the party foreclosing has no right to foreclose then the alleged default of the alleged borrower doesn’t matter. This is a great decision that I found on the Neil Garfield website. I just wish the Ninth Circuit Court of Appeals would issue a decision like this one.

Originally posted on Livinglies's Weblog:

For more information please call 954-495-9867 or 520-405-1688

HOLD THE PRESSES! RICO IS ALIVE AND WELL — IT IS THE DEFAULT THAT IS IRRELEVANT!!!

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SEE http://www.troydoucet.com/racketeering-lawsuit-over-robo-signing-can-proceed/

SEE

The key element here is the Court’s determination that the lawyers were misleading the court by characterizing the homeowner’s claim as seeking damages for a false assignment. The Sixth Circuit correctly analyzed the situation and arrived at the simple conclusion: if BOA didn’t have any right to foreclose the mortgage then it doesn’t matter whether or not the homeowner defaulted.

The importance of this finding, finally, in a somewhat conservative court cannot be understated. It might well be as important as the Jesinoski decision. The reason it is so important is that this means that the primary assumption by virtually all courts in the land is turned upside down. That assumption is that if the borrower defaulted it doesn’t matter who is…

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Motion under Family Code section 1101 for concealment of community property

A motion under Family Code section 1101 for concealment of community property is the topic of this blog post. A motion under Family Code section 1101 can ask for damages and sanctions in a California divorce on the grounds that the other party to the divorce breached their fiduciary duty by not disclosing the existence of community property.

A request filed under Family Code section 1101 is very powerful as the party that failed to disclose the community property can be ordered to pay the other party fifty percent (50%) of the value of the concealed community property and the attorney fees and costs of the other party. If the court determines that malice, fraud or oppression have been shown the court can order the non-disclosing party to pay the other party one hundred percent (100%) of the value of the concealed community property and also has the discretion to order them to pay the attorney fees and costs of the other party.

I do want to stress that there is a three year statute of limitations which begins to run as of the date the petitioning spouse had actual knowledge that the transaction or event for which the remedy is being sought occurred.

Damages and sanctions can also be requested in a legal separation or nullity case. The request is commenced by the filing of a notice of motion or request for order. The motion is filed under the provisions of Family Code sections 721 and 1101 athough other code sections such as Family Code sections 271 and 2100 may also be applicable.

Family Code § 721 outlines the fiduciary duties of spouses in California and states that,

“(a) Subject to subdivision (b), either spouse may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.

(b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code, in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:

(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.

(2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.

(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.”

Family Code § 1101 states in pertinent part that,

“(a) A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse’s present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse’s undivided one-half interest in the community estate.

(b) A court may order an accounting of the property and obligations of the parties to a marriage and may determine the rights of ownership in, the beneficial enjoyment of, or access to, community property, and the classification of all property of the parties to a marriage.

(c) A court may order that the name of a spouse shall be added to community property held in the name of the other spouse alone or that the title of community property held in some other title form shall be reformed to reflect its community character, except with respect to any of the following:

(1) A partnership interest held by the other spouse as a general partner.

(2) An interest in a professional corporation or professional association.

(3) An asset of an unincorporated business if the other spouse is the only spouse involved in operating and managing the business.

(4) Any other property, if the revision would adversely affect the rights of a third person.

(d) (1) Except as provided in paragraph (2), any action under subdivision (a) shall be commenced within three years of the date a petitioning spouse had actual knowledge that the transaction or event for which the remedy is being sought occurred.

(2) An action may be commenced under this section upon the death of a spouse or in conjunction with an action for legal separation, dissolution of marriage, or nullity without regard to the time limitations set forth in paragraph (1).

(3) The defense of laches may be raised in any action brought under this section.

(4) Except as to actions authorized by paragraph (2), remedies under subdivision (a) apply only to transactions or events occurring on or after July 1, 1987.

(f) Any action may be brought under this section without filing an action for dissolution of marriage, legal separation, or nullity, or may be brought in conjunction with the action or upon the death of a spouse.

(g) Remedies for breach of the fiduciary duty by one spouse, including those set out in Sections 721 and 1100, shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees and court costs. The value of the asset shall be determined to be its highest value at the date of the breach of the fiduciary duty, the date of the sale or disposition of the asset, or the date of the award by the court.

(h) Remedies for the breach of the fiduciary duty by one spouse, as set forth in Sections 721 and 1100, when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.”

The award of 100 percent of the asset for a fraudulent, oppressive or malicious breach of fiduciary duty is a civil sanction or penalty as stated by at least one California Court of Appeal in a published case. Other cases from the California Courts of Appeal have upheld an award of 100 percent of the asset for a fraudulent, oppressive or malicious breach of fiduciary duty.

And at least two California Courts of Appeal have stated than when a breach of fiduciary duty is found the court cannot deny a request for attorney fees and costs by the prevailing party. In other words an award of attorney fees and costs is mandatory.

Attorneys or parties in California that would like to view a portion of a sample 17 page motion for damages and sanctions under Family Code sections 271, 721, 1101 and 2100 containing brief instructions, a memorandum of points and authorities with a table of contents and table of authorities along with citations to case law and statutory authority and sample declaration sold by the author of this blog post can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

 

 

 

 

A motion for Family Code section 1101 damages and sanctions in a California divorce for concealment of community property in a divorce case is the topic of this blog post. Any party to a divorce in California can request damages and sanctions on the grounds that the other party breached their fiduciary duty by intentionally concealing valuable community property.

 

A request filed under Family Code section 1101 is very powerful as the party that failed to disclose the community property can be ordered to pay the other party fifty percent (50%) of the value of the concealed community property and the attorney fees and costs of the other party. If the court determines that malice, fraud or oppression have been shown the court can order the non-disclosing party to pay the other party one hundred percent (100%) of the value of the concealed community property and also has the discretion to order them to pay the attorney fees and costs of the other party.

 

I do want to stress that there is a three year statute of limitations which begins to run as of the date the petitioning spouse had actual knowledge that the transaction or event for which the remedy is being sought occurred.

 

Damages and sanctions can also be requested in a legal separation or nullity case. The request is commenced by the filing of a notice of motion or request for order. The motion is filed under the provisions of Family Code sections 721 and 1101athough other code sections such as Family Code sections 271 and 2100 may also be applicable.

 

Family Code § 721 outlines the fiduciary duties of spouses in California and states that,

 

“(a) Subject to subdivision (b), either spouse may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.

 

(b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code, in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:

 

(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.

 

(2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.

 

(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.”

 

 

Family Code § 1101 that,

 

“(a) A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse’s present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse’s undivided one-half interest in the community estate.

 

(b) A court may order an accounting of the property and obligations of the parties to a marriage and may determine the rights of ownership in, the beneficial enjoyment of, or access to, community property, and the classification of all property of the parties to a marriage.

 

(c) A court may order that the name of a spouse shall be added to community property held in the name of the other spouse alone or that the title of community property held in some other title form shall be reformed to reflect its community character, except with respect to any of the following:

 

(1) A partnership interest held by the other spouse as a general partner.

 

(2) An interest in a professional corporation or professional association.

 

(3) An asset of an unincorporated business if the other spouse is the only spouse involved in operating and managing the business.

 

(4) Any other property, if the revision would adversely affect the rights of a third person.

 

(d) (1) Except as provided in paragraph (2), any action under subdivision (a) shall be commenced within three years of the date a petitioning spouse had actual knowledge that the transaction or event for which the remedy is being sought occurred.

 

(2) An action may be commenced under this section upon the death of a spouse or in conjunction with an action for legal separation, dissolution of marriage, or nullity without regard to the time limitations set forth in paragraph (1).

 

(3) The defense of laches may be raised in any action brought under this section.

 

(4) Except as to actions authorized by paragraph (2), remedies under subdivision (a) apply only to transactions or events occurring on or after July 1, 1987.

 

(e) In any transaction affecting community property in which the consent of both spouses is required, the court may, upon the motion of a spouse, dispense with the requirement of the other spouse’s consent if both of the following requirements are met:

 

(1) The proposed transaction is in the best interest of the community.

 

(2) Consent has been arbitrarily refused or cannot be obtained due to the physical incapacity, mental incapacity, or prolonged absence of the nonconsenting spouse.

 

(f) Any action may be brought under this section without filing an action for dissolution of marriage, legal separation, or nullity, or may be brought in conjunction with the action or upon the death of a spouse.

 

(g) Remedies for breach of the fiduciary duty by one spouse, including those set out in Sections 721 and 1100, shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees and court costs. The value of the asset shall be determined to be its highest value at the date of the breach of the fiduciary duty, the date of the sale or disposition of the asset, or the date of the award by the court.

 

(h) Remedies for the breach of the fiduciary duty by one spouse, as set forth in Sections 721 and 1100, when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.”

 

The award of 100 percent of the asset for a fraudulent, oppressive or malicious breach of fiduciary duty is a civil sanction or penalty as stated by at least one California Court of Appeal in a published case. Other cases from the California Courts of Appeal have upheld an award of 100 percent of the asset for a fraudulent, oppressive or malicious breach of fiduciary duty.

 

And at least two California Courts of Appeal have stated than when a breach of fiduciary duty is found the court cannot deny a request for attorney fees and costs by the prevailing party. In other words an award of attorney fees and costs is mandatory.

 

Attorneys or parties in California that would like to view a portion of a sample 17 page motion for damages and sanctions under Family Code sections 271, 721, 1101 and 2100 containing brief instructions, a memorandum of points and authorities with a table of contents and table of authorities along with citations to case law and statutory authority and sample declaration sold by the author of this blog post can see below.

 

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

DISCOVERY in Foreclosure Cases: Aggression can be a good thing

Stan Burman:

Excellent blog post by Neil Garfield on discovery in foreclosure defense cases and why aggression is a good thing. I agree that anyone suing the big banks over a foreclosure needs to be aggressive and be ready to file motions to compel as the banks will most likely object to almost everything. Luckily the scope of discovery in California at least is very broad and all doubts would be resolved in favor of discovery.

Originally posted on Livinglies's Weblog:

For further information please call 954-495-9867 or 520-405-1688

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see http://www.insidecounsel.com/2015/05/12/litigation-management-for-the-in-house-generalist

Discovery can be grouped into three categories: oral discovery (depositions), written discovery (interrogatories and requests for admission), and visual inspection (requests for production). These are collectively referred to as “discovery requests.” As a handy rule of thumb, you can think of discovery requests as requests to either discuss something (depositions), answer something (interrogatories), admit or deny something (requests for admission), or produce something (requests for production). You will be on both sides of discovery—you get to send discovery requests to the other party or parties, and you will receive them from the other parties. The tips and thoughts below are from the perspective of a party receiving discovery requests.

For most lawyers, discovery is simple — ask a bunch of questions or demand a visual inspection. The problems start after that. And what the banks have been counting on…

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RESCISSION: What will MBS Rating Agencies Do Now?

Stan Burman:

Great article from Neil Garfield on the MBS ratings agencies and the effect of rescission under TILA since the Jesinoski v. Countrywide decision.

Originally posted on Livinglies's Weblog:

For further information please call 954-495-9867 or 520-405-1688.

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EVEN IF THE TRUST DID BUY LOANS WHAT IS THE VALUE OF THE BONDS IF THE LOANS CAN BE CANCELED AT ANY MOMENT BY THE BORROWER?

This is going to be interesting. When investors realize that the “securitization” of loans, even as designed is contingent upon the power that a borrower has to cancel the loan things are going to change.

Think about it. We know with certainty that the notice of rescission is effective by operation of law when a borrower drops it in the mail. That means it is the same thing as a contested legal action in which the borrower won the case. Nothing can stop a borrower from dropping a notice of rescission into a mailbox.

We also know that there are two time limitations in TILA rescission. The first is the right of three day rescission…

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Safeguard properties enters foreclosed homes illegally

Stan Burman:

Safeguard Properties is entering foreclosed homes and removing all of the contents illegally. No wonder they are being sued all over the United States.

Originally posted on Justice League:

LACEY, Wash. — Jerod Fiscus had the American dream in his grasp, and then watched it all slip away.

“Those memories are in my head. That’s all I got,” he said. “I lost my job. I was on unemployment.”

He lost his livelihood, his marriage and like so many others during the economic downturn, his home in Lacey. His voice wavers and he nearly wipes away a tear. Even with his emotions in check, Fiscus takes the blame.

“That’s all my fault. That’s nobody else’s fault but mine,” he said.

Fiscus says there is another loss he believes is illegal, painful, and just plain wrong.

Attorney Chelsea Hicks with the Northwest Justice Project represents Fiscus and other clients in the same situation. She says Washington state law gives homeowners exactly twenty days to vacate a house with the clock starting the day of the foreclosure sale.

“Most people rely on…

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How We Became a Nation of Renters

Stan Burman:

How we became a nation of renters blog post by Neil Garfield.

Originally posted on Livinglies's Weblog:

For more information please call 954-495-9867 or 520-405-1688

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see http://www.pmguardian.com/how-americans-became-a-nation-of-renters/

The above link has an excellent info-graphic about the mortgage crisis and the changing nature of our society. What is perplexing is that people who oppose what the banks were allowed to hijack the loans are still saying that the problem is that the paperwork wasn’t done right. That is true of course but it isn’t the point. The point is that the banks did the unthinkable and then continued to profit and leverage off of a business model which consisted of getting away with pure theft. That the paperwork was wrong is a natural consequence of that behavior. This reality continues to escape most Judges, lay people and their lawyers.

If you or I defrauded someone into thinking that they were investing in a real company and instead went out and spent the money on groceries and did…

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