But see DeBrunner. I'm not sure if carpenter is the law in California. Assignment of deed of trust can transfer note as well without any formal transfer or delivery of note.
Deemed unsecured gets debtor, at the very least, the homestead exemption. That would be a major victory.
Cameron
Sent from my iPad
On Oct 11, 2012, at 12:36 PM, "Shannon Doyle" wrote:
> No. See Cal Civ Code 2936. Similarly, this has long been the law throughout the United States: when a note secured by a mortgage is transferred, transfer of the note carries with it the security, without any formal assignment or delivery, or even mention of the latter. Carpenter v. Longan, 83 U.S. 271, 275 (1872). In re Vargas (2008) (PDF) 396 B.R. 511, 516, emphasis added.
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> I dont know your facts but If you are arguing MERS has no right to transfer the DOT, you will lose. Lots of CA cases on this issue in favor of MERS (there may be a few small victories in some cases here and there but overwhelming majority in CA favors MERS). Judge Bason will not grant debtor a free house and if the debt is somehow deemed unsecured (which I highly doubt) you likely have a liquidation issue.
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> That being said please keep us informed on your case and if you are able to make any headway with this issue.
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> Shannon A. Doyle
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> Attorney at Law
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> 100 N. Barranca Avenue, Suite 250
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> West Covina, CA 91791-1600
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> Tel: (626) 646-2555
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> Fax: (626) 332-8644
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www.blclaw.com
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PHiLiP E. KOeBeL, Esq.
> Sent: Monday, October 08, 2012 4:18 PM
> To:
cdcbaa@yahoogroups.com
> Subject: Re: Interpleader and Cal Com Code 3301 - hijacked from Re: [cdcbaa] Pro Per Issue In CDCA - A Solution?
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> alas, i think this is correct and thanks again for showing me NB's commitment to it. i better include some discussion of it in my 12b6 oppositions i am working on for NB in a pre-foreclosure case and a post-foreclosure case.
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> Section 3301 has no bearing on whether the note is secured, right? a thief holding the note would have to do a judicial foreclosure to enforce the note if they have not been assigned the deed of trust or if the security instrument was defeated, right?
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> On Mon, Oct 8, 2012 at 4:08 PM, Shannon Doyle wrote:
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> You still have to overcome Cal. Com. Code 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.
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> So basically even a thief can enforce the note. Judge Bason brought this up in argument and said even if the holder of the note found the note on the street, they could enforce it (if it is indorsed in blank which most of these securitized notes are).
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> If you can show the note is a non-negotiable instrument (See Cal Com Code 3104) then creditor has to comply with statute of frauds to show a valid transfer but I believe that is a losing battle (at least in this district). I know Max Gardner can do it in North Carolina and then somehow get the bank to payoff the entire Ch13 and give debtor a new mortgage loan. I think Link Schrader made this argument about non-negotiability of the note and it was denied by Judge Tighe (correct me if I am wrong on this Link). >
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> Shannon A. Doyle
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> Attorney at Law
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> 100 N. Barranca Avenue, Suite 250
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> West Covina, CA 91791-1600
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> Tel: (626) 646-2555
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> Fax: (626) 332-8644
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www.blclaw.com
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PHiLiP E. KOeBeL, Esq.
> Sent: Friday, October 05, 2012 4:59 PM
> To:
cdcbaa@yahoogroups.com
> Subject: Interpleader and Cal Com Code 3301 - hijacked from Re: [cdcbaa] Pro Per Issue In CDCA - A Solution?
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> this thread has managed to become interesting again thanks to the hijack...
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> if there are two or more likely recipients of the borrower's funds, does that not spell Interpleader action under FRCP 22 and FRBP 7022?
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> this would in turn require the two (or more) candidates for the payments from the debtor (in Chapter 13, they are really payments from the bankruptcy estate, aren't they?) to come to Judge Bason and prove to him that which we cannot apparently unprove to him.
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> If A was original lender and B (or C or D etc.) claims to be current beneficiary, but we have a legal theory that says it cannot be B (or C or D etc. or A for that matter), then the Interpleader action holding the payments for A or B would force A or B (or C or D etc.) to prove their right. Right?
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> If neither A nor B (etc.) succeed, then Judge Bason must accept the truth that no one is owed the money.
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> On Fri, Oct 5, 2012 at 3:43 PM, Shannon Doyle wrote:
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> I have tried to break ground in this area in Central District CA but did not get far with Judge Bason. I argued the false/fraudulent assignments of the note and the violations of the trust, etc.. but Judge Basons position is that a debtor owes someone and just because the bank may not have properly recorded assignments doesnt mean debtor gets a free house (which was not the goal - I was trying for a positive ruling that would enable debtors to negotiate a loan modification ebtor did not have standing to challenge violations of the trust. I argued that the trust violations are relevant in showing the note could have never made it to the trust (the supposed note holder) but he disagreed. He did not require the creditor provide the original note but he did require that creditor file a declaration from a custodian of records that creditor held the note. You have to overcome Cal Com Code 3301 which says the person who holds the note can enforce the note.
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> I think you can be successful with these arguments if you can show clear damages to your client (i.e. debtor paying one lender when another lender is claiming an interest in the note). Otherwise, an ugly chain of title itself is not tantamount to the kind of damages that warrant disallowing a secured claim...at least not with Judge Bason.
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> I will say Judge Bason is very fair and he will listen and consider your arguments carefully. He did take several weeks to do his own research before he issued a ruling on this issue.
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> Shannon A. Doyle
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> Attorney at Law
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> 100 N. Barranca Avenue, Suite 250
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> West Covina, CA 91791-1600
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> Tel: (626) 646-2555
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> Fax: (626) 332-8644
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www.blclaw.com
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Jay Fleischman
> Sent: Friday, October 05, 2012 12:30 PM
> To:
cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Pro Per Issue In CDCA - A Solution?
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> That's what I'm hoping for
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> On Fri, Oct 5, 2012 at 12:09 PM, Hale Andrew Antico wrote:
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> It's to our benefit that new member Jay Fleischman (formerly of NY) represented the debtor in both those cases. Perhaps he can duplicate his magic in our district.
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> And from Attorney Koebel's other post:
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> > Short sale is one of the stupidest concepts of all time - an invention of out-of-work realtors that serves no purpose except to delay the sale of a property
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> Concur.
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> Hale
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f PHiLiP E. KOeBeL, Esq.
> Sent: Tuesday, September 25, 2012 9:33 PM
> To: CDCBAA Listserv
> Subject: Fwd: [cdcbaa] Pro Per Issue In CDCA - A Solution?
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> Does it occur to no one on this list that there is a cause and effect driving emergency filings by pro se Debtors?
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> Apply your considerable skills to that which Mr. Anderson (the UST for Region 16) completely ignores - pursuing the banks who have practiced robo-signing and other fraudclosure practices.
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> Debtors will stop choosing to be prey when they see some action from Central District attorneys like the attached cases...
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http://scholar.google.com/scholar_case? ... &as_sdt2,5
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http://scholar.google.com/scholar_case? ... &as_sdt2,5
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> with peace and respect,
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> PHiLiP KOeBeL
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> On Tue, Sep 25, 2012 at 4:53 PM, Leventhal Law Group, P.C. wrote:
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The post was migrated from Yahoo.