Saturday, April 30, 2016

Chart reveals Shocking Increase in Bozos

The USA's clinically stupid have IQ below 85 and lack the cognitive ability to graduate from a 1950's vintage high school.  This genetic affliction actually has a criminal aspect for two reasons:
  1. The intentional infliction of a  life-long debilitating disease upon an innocent person constitutes a crime in any civilized land, and yet the stupid of America inflict the lifelong debilitating disease of stupidity upon their children, making them stupid merely by procreating them.
  2. The stupid behave stupidly and thereby gravitate to crime in order to get by, and they overburden education, health care, criminal justice, and other infrastructures; additionally, to the extent government allows it, they subsist partially from welfare benefits.
Sadly, no law prohibits the stupid from having a say in government.  It stands to reason that immigrating and procreating the stupid without restraint will eventually make the stupid the majority of voters.  They will reliably vote stupidly to elect demagogues and corrupt politicians who will rob from productive people in order to give various forms of welfare to the stupid, essentially making the productive the slaves of the non-productive.

The average IQ of USA racial groups:
  • 115 Ashkenazi Jews
  • 105 Asians (6% of the population)
  • 100 Caucasians (65% of the population)
  • 90 Mestizos generally (15% of the population)
  • 87 Mexicans
  • 85 Negroes (14% of the population)
The approximate numbers of stupid people
  • 35 million Caucasians
  • 22 million Mestizos
  • 23 million Negroes
  • 80 million Stupid People in USA, Total
The fastest growing racial groups:
  • Asians to escape oppressive government or racking poverty
  • Negroes through welfare benefits encourage unrestrained procreation
  • Mestizos through immigration and welfare benefits that encourage procreation
These facts portend an even more shocking increase in USA Bozos in the years to come, because of open borders, civilizationally suicidal quotas allowing the wrong people to immigrate, ridiculous welfare benefits for the stupid without imposition of any test or responsibility, and unrestrained procreation of and by the stupid out of wedlock.

To fix this, we need:
  1. Mandatory constitution competency testing for all who vote or work for government
  2. Demonstration of financial responsibility as a qualification for voting
  3. Law to criminalize and prevent procreation of or by the stupid
  4. IQ and productivity testing for all immigrants
  5. Rock solid border system to terminate illegal immigration.
Demand these changes from your legislators under penalty of excision from Government... UNLESS you want to witness a further SHOCKING INCREASE IN BOZOS.

Bob Hurt
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2460 Persian Drive #70
✈ Clearwater, FL 33763 USA
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Mortgage Attack to Beat the Bank

Randy Kelton learns about TILA rescission the HARD WAY


In the Kelton v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Dist. Court, ND Texas 2014 opinion the court dismissed your complaint for lack of standing.  Apparently you learned your lesson and got the borrower to quitclaim the property to you so you could litigate it.  But you must have listened to that Kool-Aid Drinker Neil Garfield because you submitted a TILA rescission letter after the statute of repose had tolled.  So, the judge handed you another loss in the Kelton v. WELLS FARGO BANK, NA, Dist. Court, ND Texas 2016 opinion.

Why would you bother with all those losing arguments when DOZENS of case opinions prove you wrong?  All you have to do is look around on Google Scholar and read them.

Now people will read the opinion about YOUR 2016 case there and realize that YOU are a foreclosure "pretense defense" Kool-Aid Drinker who doesn't have a clue how to deal with a mortgage dispute.

If you want to know how to deal with a mortgage issue with some chance of prevailing and winning damages, read this web site:

Mortgage Attack teaches that you win by finding how the borrower got injured in the loan transaction, and using those injuries to leverage a settlement or win set-offs or damages in court.

You can also use Mortgage Attack site as an education and strategy resource.  For example, check out the POST-JESINOSKI OPINIONS here that prove Garfield and his minions are feckless when it comes to understanding TILA:

Sorry, but you cannot buy anything at that site.  It's a consumer advocacy PUBLIC SERVICE.

Try not to walk in Garfield's footsteps, Randy.  Otherwise you will look like a Bozo too.


Bob Hurt
👓 Blog 1 2   f   t  
Email     📞 (727) 669-5511
2460 Persian Drive #70
✈ Clearwater, FL 33763 USA
Donate  to Law Scholarship
✔  Subscribe to Lawmen E-Letter
🔨 Learn How to Win in Court
Mortgage Attack to Beat the Bank


Thursday, April 28, 2016

Neil Garfield recommends mortgage examinations for borrowers in trouble

In his LivingLies Blog entry of 2016-04-27, Foreclosure Pretender Defender and Kool-Aid Drinker Neil Garfield wrote this, correct for a change:
"... you need a thorough analysis of everything that happened with your alleged loan and a careful examination of the pleadings if you are already in court. We readily understand the reluctance to spend more money on what has been a frustrating experience, but the ONLY way you can select a strategy that will or might get traction is by having an experienced eye do a thorough review and report."
Garfield FAILS to tell his readers that he and his crew don't have a clue about doing mortgage examinations.  They only do securitization and forensic loan audits, not full-bore examinations.  And because Garfield has spouted bogus legal theories for years,  THOUSANDS of people have lost their homes to foreclosure by relying upon his advice.  So DON'T rely upon it.  Instead, rely upon the court opinions that I have cited in the Articles section of this site.  They prove nearly everything Garfield promotes is a band-aid, at best.
The ONLY reliable place to get a comprehensive mortgage examination that finds all the ways a borrower got injured in the loan is at Mortgage Attack.
Go to the Contact page in the site menu and explain your situation.  Then submit the form.  The Mortgage Attack Maven will show you exactly how to get a comprehensive mortgage examination AND how to use it for best results.
If you feel time pressure, call 727 669 5511.

Wednesday, April 20, 2016

Saterback Opinion Destroys PSA/Assignment Arguments Post-Yvanova

My mortgage examiner friend saw the California Yvanova case as much ado about nothing.  The borrower, Yvanova, sued for wrongful foreclosure because she discovered that the lender New Century Mortgage had, in bankruptcy, wrongfully assigned her note to a securitizer rather than allowing the bankruptcy liquidation trustee do it.  That meant the securitization trust had no rightful ownership of the note and therefore no authority to foreclose.  The California supremes supported her right to challenge the foreclosure for that reason.

Thus, despite expounding on the issues for 30 pages, the Yvanova opinion simply stands for the unremarkable  and largely undisputed proposition that a borrower can sue for wrongful foreclosure where the transaction by which the beneficiary acquired the loan became void from its inception.  

The California Supreme Court clarified the only issue before it. The court opined that in a lawsuit for wrongful foreclosure on a deed of trust securing a home loan, the borrower has standing to challenge a creditor's void assignment of the note and deed of trust to a successor creditor who successfully foreclosed the loan.

The Yvanova case has gone back to trial court to deal with the issue of the impact of the void assignment on the foreclosure.  Tsvetana Yvanova has assured me I don't understand her case well enough to predict the outcome.  Nevertheless, I have predicted that in the end, the court will uphold the foreclosure sale of Yvanova's property for failure to pay timely.

Likewise, borrowers' counsel, and some in the financial industry, have misconstrued the Court's narrow holding by reading more into it than it contains. They seem to think that the borrower ought to have standing to challenge a defective assignment or a violation of the Pooling and Servicing Agreement, even thought it does not injure or benefit the borrower, andthe borrower never became a party to it.

Recently, California's 4th District Court of Appeals, in Saterbak v. JPMCB, addressed what the Yvanova courts did not.  It thereby put to rest many of the specious legal theories that borrowers use in an effort to welch on their home loan and get a free house.   Notice from the opinion, which I have shown below, how the Court keeps going back to the language of the contract .

The upshot: borrowers can win setoffs, settlements, and damage awards by attacking the contract, NOT by attacking the foreclosure.

Notice key text in bold typeface.


Court of Appeal, Fourth District, Division 1, California.

Laura SATERBAK, Plaintiff and Appellant, v. JPMORGAN CHASE BANK, N.A., as Trustee, etc., Defendant and Respondent.


    Decided: March 16, 2016

Law Offices of Richard L. Antognini and Richard L. Antognini, Lincoln, for Plaintiff and Appellant. Bryan Cave, Glenn J. Plattner and Richard P. Steelman, Jr., Santa Monica, for Defendant and Respondent.

Laura Saterbak appeals a judgment dismissing her first amended complaint (FAC) after the sustaining of a demurrer without leave to amend.  Saterbak claims the assignment of the deed of trust (DOT) to her home by Mortgage Electronic Registration Systems, Inc. (MERS) to Structured Asset Mortgage Investment II Trust 2007–AR7 Mortgage Pass–Through Certificates 2007–AR7 (2007–AR7 trust or Defendant) was invalid.  Arguing the assignment occurred after the closing date for the 2007–AR7 trust, and that the signature on the instrument was forged or robo-signed, she seeks to cancel the assignment and obtain declaratory relief.  We conclude Saterbak lacks standing and affirm the judgment.


In April 2007, Saterbak purchased real property on Mount Helix Drive, La Mesa, California through a grant deed.  She executed a promissory note (Note) in May 2007, in the amount of $1 million, secured by the DOT. The DOT named MERS as the beneficiary, "solely as nominee for Lender and Lender's successors and assigns."  It acknowledged MERS had the right "to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property."

On December 27, 2011, MERS executed an assignment of the DOT to "Citibank, N.A. as Trustee for [2007–AR7 trust]."  The assignment was recorded nearly a year later, on December 17, 2012.  It is this assignment that Saterbak challenges.  The 2007–AR7 trust is a real estate mortgage investment conduit (REMIC) trust;  its terms are set forth in a pooling and servicing agreement (PSA) for the trust, which is governed under New York law.  Pursuant to the PSA, all loans had to be transferred to the 2007–AR7 trust on or before its September 18, 2007, closing date.

Saterbak fell behind on her payments.  On December 17, 2012, Citibank N.A. substituted and appointed National Default Servicing Corporation (NDS) as trustee under the DOT.  The substitution of trustee form was executed by JPMorgan Chase Bank, N.A. (hereafter Chase) as attorney-in-fact for Citibank N.A., trustee for the 2007–AR7 trust.  NDS recorded a notice of default on December 17, 2012.  By that point, Saterbak had fallen $346,113.99 behind in payments.  On March 19, 2013, NDS recorded a notice of trustee's sale, scheduling a foreclosure sale for April 10, 2013.  By that point, Saterbak owed an estimated $1,600,219.13.1

Saterbak filed suit in January 2014.  She alleged the DOT was transferred to the 2007–AR7 trust four years after the closing date for the security, rendering the assignment invalid.  She further alleged the signature on the assignment document was robo-signed or a forgery.  She sought to cancel the assignment as a "cloud" on her title pursuant to Civil Code 2 section 3412.  She also sought declaratory relief that the same defects rendered the assignment void.

In May 2014, the trial court sustained Chase's demurrer.  It held Saterbak lacked standing to sue based on alleged noncompliance with the PSA for 2007–AR7 trust because she did not allege she was a party to that agreement.  The court granted Saterbak leave to amend to plead a different theory for cancellation of the DOT.

Saterbak filed the FAC in May 2014.  The FAC asserted the same causes of action for cancellation of the assignment and declaratory relief premised on the same theories of untimely securitization of the DOT and robo-signing.  The FAC claimed it did not "seek to challenge ․ any Foreclosure Proceedings and or Trustee's Sale."

Chase demurred and requested judicial notice of the following instruments:  the DOT, the corporate assignment DOT, substitution of trustee, notice of default, and notice of trustee sale.  The trial court granted Chase's request for judicial notice and sustained its demurrer.  The court held, "Despite the arguments made by Plaintiff, the FAC does, in fact, allege that the assignment is void because the loan was not moved into the securitized trust in a timely manner."  As it had previously, the court held Saterbak lacked standing to sue based on alleged noncompliance with the PSA, as she was not a party to that agreement.  The court also rejected Saterbak's robo-signing theory for lack of standing, stating she had not alleged that she "relied" on the assignment or sustained injury from it.  The court denied leave to amend, noting the FAC was Saterbak's second attempt and concluding there was no possibility she could remedy her standing deficiencies through amendment.

The court entered judgment for Chase in August 2014, and Saterbak timely appealed.


"On appeal from a judgment of dismissal entered after a demurrer has been sustained, this court reviews the complaint de novo to determine whether it states a cause of action.  [Citation.]  We assume the truth of all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law."  (Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986, 989–990.)  We may consider matters that are properly judicially noticed.  (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1379.)

"If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action.  If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment.  [Citation.]  If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse;  if not, no abuse of discretion has occurred.  [Citation.]  The plaintiff has the burden of proving that an amendment would cure the defect."  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

Central to this appeal is whether as a borrower, Saterbak has standing to challenge the assignment of the DOT on grounds that it does not comply with the PSA for the securitized instrument.  For the reasons discussed below, the trial court properly sustained Defendant's demurrer to the FAC without leave to amend.


A. Saterbak Bears the Burden to Demonstrate Standing

"Standing is a threshold issue, because without it no justiciable controversy exists."  (Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God (2009) 173 Cal.App.4th 420, 445.)  "Standing goes to the existence of a cause of action."  (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 128.)  Pursuant to Code of Civil Procedure section 367, "[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute."

Saterbak contends the 2007–AR7 trust bears the burden of proving the assignment in question was valid.  This is incorrect.  As the party seeking to cancel the assignment through this action, Saterbak "must be able to demonstrate that ․ she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical."  (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 315.)

Saterbak's authorities do not suggest otherwise.  She cites Fontenot, but that case actually held "MERS did not bear the burden of proving a valid assignment"—instead, "the burden rested with plaintiff affirmatively to plead facts demonstrating the impropriety."   (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 270 (Fontenot ), disapproved on other grounds in Yvanova v. New Century Mortgage Corp. 62 Cal.4th 919, 939, fn. 13 (Yvanova ).)  Saterbak also cites Cockerell and Neptune, but those cases merely held that an assignee who files suit to enforce an assigned right bears the burden of proving a valid assignment.  (Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292;  Neptune Society Corp. v. Longanecker (1987) 194 Cal.App.3d 1233, 1242.)

B. Saterbak Lacks Standing to Challenge the Assignment

Saterbak alleges the DOT was assigned to the 2007–AR7 trust in an untimely manner under the PSA. Specifically, she contends the assignment was void under the PSA because MERS did not assign the DOT to the 2007–AR7 trust until years after the closing date.  Saterbak also alleges the signature of "Nicole M. Wicks" on the assignment document was forged or robo-signed.

Saterbak lacks standing to pursue these theories.  The crux of Saterbak's argument is that she may bring a preemptive action to determine whether the 2007–AR7 trust may initiate a nonjudicial foreclosure.  She argues, "If the alleged 'Lender' is not the true 'Lender,' " it "has no right to order a foreclosure sale."  However, California courts do not allow such preemptive suits because they "would result in the impermissible interjection of the courts into a nonjudicial scheme enacted by the California Legislature."  (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513 (Jenkins ), disapproved on other grounds in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13;  see Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1156 (Gomes ) ["California's nonjudicial foreclosure law does not provide for the filing of a lawsuit to determine whether MERS has been authorized by the holder of the Note to initiate a foreclosure"].)  As the court reasoned in Gomes:

"[The borrower] is not seeking a remedy for misconduct.  He is seeking to impose the additional requirement that MERS demonstrate in court that it is authorized to initiate a foreclosure․  [S]uch a requirement would be inconsistent with the policy behind nonjudicial foreclosure of providing a quick, inexpensive and efficient remedy."  (Gomes, supra, at p. 1154, fn. 5.) 3

The California Supreme Court recently held that a borrower has standing to sue for wrongful foreclosure where an alleged defect in the assignment renders the assignment void.  (Yvanova, supra, 62 Cal.4th at pp. 942–943.)  However, Yvanova's ruling is expressly limited to the post-foreclosure context.  (Id. at pp. 934–935 ("narrow question" under review was whether a borrower seeking remedies for wrongful foreclosure has standing, not whether a borrower could preempt a nonjudicial foreclosure).)  Because Saterbak brings a preforeclosure suit challenging Defendant's ability to foreclose, Yvanova does not alter her standing obligations.4

Moreover, Yvanova recognizes borrower standing only where the defect in the assignment renders the assignment void, rather than voidable.  (Yvanova, supra, 62 Cal.4th at pp. 942–943.)  "Unlike a voidable transaction, a void one cannot be ratified or validated by the parties to it even if they so desire."  (Id. at p. 936.)  Yvanova expressly offers no opinion as to whether, under New York law, an untimely assignment to a securitized trust made after the trust's closing date is void or merely voidable.  (Id. at pp. 940–941.)  We conclude such an assignment is merely voidable.  (See Rajamin v. Deutsche Bank Nat'l Trust Co. (2d Cir.2014) 757 F.3d 79, 88–89 ["the weight of New York authority is contrary to plaintiffs' contention that any failure to comply with the terms of the PSAs rendered defendants' acquisition of plaintiffs' loans and mortgages void as a matter of trust law";  "an unauthorized act by the trustee is not void but merely voidable by the beneficiary"].)  5 Consequently, Saterbak lacks standing to challenge alleged defects in the MERS assignment of the DOT to the 2007–AR7 trust.

C. The DOT Does Not Confer Standing

Saterbak argues "clear language" in the DOT and "the rules of adhesion contracts" confer standing.  We disagree. In signing the DOT, Saterbak agreed the Note and DOT could be sold "one or more times without prior notice."  She further agreed:

"Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right:  to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property;  and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument." 6

"The authority to exercise all of the rights and interests of the lender necessarily includes the authority to assign the deed of trust."  (Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 84, disapproved on other grounds in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13;  see Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1504 [interpreting language identical to Saterbak's DOT to give MERS "the right to assign the DOT"], disapproved on other grounds in Yvanova, at p. 939, fn. 13.)  The federal court adjudicating Saterbak's parallel case against her loan servicer cited the above-quoted language in the DOT to reject the same securitization theory proffered here.  (Saterbak v. National Default Servicing Corp. (S.D.Cal. Oct. 1, 2015, Civ. No. 15–CV–956–WQH–NLS) 2015 WL 5794560, at *7.)

Saterbak nevertheless points to language in the DOT that only the "Lender" has the power to declare default and foreclose, while the "Borrower" has the right to sue prior to foreclosure in order to " 'assert the non-existence of a default or any other defense of Borrower to acceleration and sale.' "  But these provisions do not change her standing obligations under California law; they merely give Saterbak the power to argue any defense the borrower may have to avoid foreclosure.  As explained ante, Saterbak lacks standing to challenge the assignment as invalid under the PSA. (Jenkins, supra, 216 Cal.App.4th at p. 515.)

Saterbak also points to the presuit notice provisions in the DOT to argue the DOT contemplates her action.  She quotes language in the DOT requiring the Borrower and Lender to provide notice and a reasonable opportunity to repair before "any judicial action  that arises from the other party's actions pursuant to this Security Instrument."  However, by Saterbak's own theory, her action does not arise "pursuant to this Security Instrument";  it is premised instead on a violation of the PSA.  The presuit notice provisions in the DOT do not contemplate her action.

Finally, Saterbak contends the deed of trust is an adhesion contract, and, therefore, restrictive language that "deprives a borrower of the right to argue her loan has been invalidly assigned" must be "conspicuous and clear."  She claims, "If the assignment clause was intended by the drafter to cutoff the borrower's right to challenge the assignment, it should have used clear language to that effect.  It did not."  As a rule, "contracts of adhesion are generally enforceable according to their terms, [but] a provision contained in such a contract cannot be enforced if it does not fall within the reasonable expectations of the weaker or 'adhering' party."  (Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1446 (Fischer ).)  However, "[b]ecause a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor" (Fontenot, supra, 198 Cal.App.4th at p. 272), together with the deed of trust securing it. Saterbak "irrevocably grant[ed] and convey[ed]" the Mount Helix property to the Lender; recognized that MERS (as nominee) had the right "to exercise any or all" of the interests of the Lender; and agreed that the Note, together with the DOT, could be sold one or more times without notice to her.  There is no reasonable expectation from this language that the parties intended to allow Saterbak to challenge future assignments made to unrelated third parties.  (Cf. Fischer, supra, at pp. 1448–1449 [holding there was a triable issue of fact "as to whether the parties mutually intended to permit cross-collateralization" on two separate loans, given ambiguity between the broadly worded dragnet clause and a " 'Related Document[ ]' " incorporated by reference into the loan agreement as to whether the parties mutually intended it].) 7

D. The Homeowner Bill of Rights Does Not Confer Standing

For the first time on appeal, Saterbak relies on the California Homeowner Bill of Rights (HBOR) to claim standing.  She argues sections 2924.17 and 2924.12 allow her to challenge the alleged defects in MERS's assignment of the DOT to the 2007–AR7 trust.  In relevant part, section 2924.17, subdivision (a), provides an "assignment of a deed of trust ․ shall be accurate and complete and supported by competent and reliable evidence."  Section 2924.12, subdivisions (a) and (b) allow borrowers to bring an action for damages or injunctive relief for "a material violation of Section ․ 2924.17."

As Saterbak acknowledges, the HBOR went into effect on January 1, 2013. (§ 2923.4.) The FAC alleges the DOT was assigned on December 27, 2011, and recorded on December 17, 2012.  Saterbak fails to point to any provision suggesting that the California Legislature intended the HBOR to apply retroactively.  (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841 ["California courts comply with the legal principle that unless there is an 'express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature ․ must have intended a retroactive application' "].) Therefore, the HBOR does not grant Saterbak new rights on appeal.8

In summary, for the reasons discussed above, we conclude Saterbak lacks standing to challenge MERS's assignment of the DOT to the 2007–AR7 trust.


Saterbak seeks to cancel the assignment of the DOT pursuant to section 3412.  She argues that to withstand a demurrer, she merely needs to allege the assignment was void or voidable and that it could cause serious injury.  We disagree.

To state a cause of action under section 3412, Saterbak must allege the assignment was void or voidable against her.  (§ 3412 ["A written instrument, in respect to which there is reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled" (italics added) ];  see also Johnson v. PNC Mortg. (N.D.Cal.2015) 80 F.Supp.3d 980, 990 (Johnson ) [section 3412 requires "the challenged instrument be void or voidable against the party seeking to cancel it"].)  Johnson dismissed a similar cause of action under section 3412 because the plaintiffs, borrowers like Saterbak, failed to "allege a plausible case that the assignment is 'void or voidable' against them."  (Johnson, supra, at p. 990.)  Here, Saterbak fails to state a cause of action under section 3412 because she cannot allege that MERS's assignment of the DOT to the 2007–AR7 trust was void or voidable against her.

Saterbak also fails to allege "serious injury."  She argues she "faces the prospect of losing her home due to the actions of an entity that has no power to foreclose because it does not own her [DOT]."  However, even if the assignment was invalid, it could not "cause serious injury" under the statute because her obligations on the Note remained unchanged. (§ 3412, italics added.)  For example, in Johnson, supra, 80 F.Supp.3d 980, borrowers sought to cancel the assignment of their deed of trust, claiming alleged infirmities in the assignment cast a shadow on their title and continued to ruin their credit.  The court rejected this theory because the alleged defects did not change the borrowers' payment obligations, and the borrowers did not deny they had defaulted.  The court concluded: "It is not really the assignment, then, or its challenged provenance, that has stained their credit report. It is the fact that they defaulted."  (Id. at p. 989.)  Likewise, here, the allegedly defective assignment did not alter Saterbak's payment obligations under the Note. Saterbak does not deny she defaulted or that her debt remains in arrears.  Consequently, she cannot demonstrate how the allegedly invalid assignment could "cause serious injury" within the meaning of section 3412 if left outstanding. (§ 3412, italics added.)

Finally, because a cause of action to cancel a written instrument under section 3412 sounds in equity, a debtor must generally allege tender or offer of tender of the amounts borrowed as a prerequisite to such claims.  The tender requirement "is based on the theory that one who is relying upon equity in overcoming a voidable sale must show that he is able to perform his obligations under the contract so that equity will not have been employed for an idle purpose."  (Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 878, italics omitted.)  The tender rule is not absolute; tender is not required to cancel a written instrument that is void and not merely voidable.  (Id. at p. 876;  Smith v. Williams (1961) 55 Cal.2d 617, 620–621;  Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 11.)  As discussed ante, we conclude the alleged defects merely rendered MERS's assignment of the DOT to the 2007–AR7 trust voidable under New York law.  In any event, because we affirm the judgment on standing grounds, we do not decide whether Saterbak was required to plead the ability or willingness to tender to cancel the assignment pursuant to section 3412.


We must consider whether Saterbak has demonstrated a reasonable probability that she could cure the defects that we have identified.  (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)  Saterbak contends she could amend her complaint to "argue that the language in her [DOT] gives her the right to attack a void assignment of her loan."  As discussed in detail above, we conclude the DOT does not confer this right.  Because Saterbak has not shown how she could remedy her lack of standing to challenge MERS's assignment of the DOT to the 2007–AR7 trust, we conclude the trial court properly sustained Defendant's demurrer to the FAC without leave to amend.


The judgment is affirmed.  Respondent 2007–AR7 trust shall recover its costs on appeal.


  1.    The parties do not dispute Saterbak is in arrears on her debt obligations and a foreclosure sale has yet to take place.
  2.    All further statutory references are to the Civil Code unless otherwise specified.
  3.     Saterbak is mistaken in claiming Gomes holds "a borrower can challenge the power of an alleged loan purchaser to foreclose if [the borrower] can allege specific facts showing the assignment is invalid."  As discussed, Gomes holds that under California law, plaintiffs may not bring preemptive actions to challenge a defendant's power to foreclose.  (Gomes, supra, 192 Cal.App.4th at p. 1156.)
  4.     The Supreme Court has granted review in Keshtgar v. U.S. Bank, N.A., review granted October 1, 2014, S220012, a case involving a preforeclosure challenge based on alleged deficiencies in the assignment of the deed of trust.
  5.     Saterbak cites Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, but the New York case upon which Glaski relied has been overturned.  (Wells Fargo Bank, N.A. v. Erobobo (N.Y. App. Div.2015) 127 A.D.3d 1176, 1178; see Rajamin, supra, 757 F.3d at p. 90 [rejecting Glaski's interpretation of New York law].)  We decline to follow Glaski and conclude the alleged defects here merely render the assignment voidable.
  6.     As the court explained in Fontenot: "MERS is a private corporation that administers a national registry of real estate debt interest transactions.  Members of the MERS System assign limited interests in the real property to MERS, which is listed as a grantee in the official records of local governments, but the members retain the promissory notes and mortgage servicing rights.  The notes may thereafter be transferred among members without requiring recordation in the public records.  [Citation.]  [¶] Ordinarily, the owner of a promissory note secured by a deed of trust is designated as the beneficiary of the deed of trust.  [Citation.]  Under the MERS System, however, MERS is designated as the beneficiary in deeds of trust, acting as 'nominee' for the lender, and granted the authority to exercise legal rights of the lender."  (Fontenot, supra, 198 Cal.App.4th at p. 267.)
  7.     Saterbak also cites Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198, which involved a dispute over auto insurance coverage.  The court stated the general rule that "to be enforceable, any [insurance] provision that takes away or limits coverage reasonably expected by an insured must be 'conspicuous, plain and clear.' "  (Id. at p. 1204, italics added.)  Even if Haynes were relevant to the current context, there is no reasonable expectation created in the DOT that Saterbak would have the power to challenge assignments made to unrelated third parties.  (Fontenot, supra, 198 Cal.App.4th at p. 272.)
  8.     Saterbak contends the notice of trustee's sale was recorded after the HBOR went into effect.  However, the FAC challenges MERS's assignment of the DOT to the 2007–AR7 trust, not the notice of trustee's sale.  We further reject Saterbak's argument that the HBOR "overruled" Jenkins and cases citing it:  Jenkins was decided after the HBOR went into effect.  (Jenkins, supra, 216 Cal.App.4th 497 [decided May 17, 2013].)



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Bob Hurt
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Friday, April 15, 2016

NBC - Natural Born Citizen for President

The founders had an ambition.  Limit the presidency to people with no natural inclination NOT to remain fully loyal to the ideals of the republic AND to the Constitution.  That means the president should have no vestige of loyalty to any foreign government, people, or land, through foreign birth, foreign parentage, or long residence in a foreign land.  NBC accomplishes that ONLY if the NBC is born on US soil of US citizen mother and US citizen father.

That requirement is a level above a mere citizen born on US soil of foreign parents, or born abroad of US citizen parents, and especially born abroad of one foreign and one citizen parent, or born with or acquiring dual US and foreign citizenship.

Ted Cruz does not qualify to become president and should not be allowed to run for the office even though votes of the people only determine who can become delegates in the presidential election.  Cruz experienced birth in Canada of a US Citizen mother and a Canada citizen Cuban-native father.   He is not a NBC.  Neither is Rubio, so he never could qualify for the presidency because he experienced birth in the USA of Cuban citizen parents.

Our problem: Congress has not made a law obligating an election qualification commission to ensure that all candidates qualify for office prior to having the right to run for election.

Congress does not have the authority to define Natural Born Citizen in any way other than the above way, in keeping with the widely respected Emmerich Vattel's translation and modernization of the Law of Nations.

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Bob Hurt
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Tuesday, April 05, 2016

Did SCOTUS blow it on one person one vote?

The Constitution for the United States of America (CUSA) FAMOUSLY disenfranchised many people by leaving it up to the Supreme Court, the legislature, and the states to define the meaning of "people."  Obviously, "we the people" cannot possibly mean everyone in the United States.  The framers contended with the sticky issues of state's retaining their sovereignty, so that they did not meticulously clarify the reach of the bill of rights.  The Supreme Court denied Barron, a Baltimore citizen, the protection of the 5th amendment's provision against  uncompensated taking of property, for example, saying it was up to the states to create their own equivalent in their constitutions if they wanted their people to enjoy such protection.

And everybody knows the framers could not possible have intended that every human being in the US could enjoy the CUSA's express right of "the people" to keep and bear arms - states infringed that right from the get-go.  Federal law prohibits illegal aliens, felons, mental incompetents, and children under 16 from bearing arms, and the states, territories, and municipalities impose their own restrictions on the right.  What the heck, to most of us that seems like plain common sense. 

The CUSA cannot possibly mean what it plainly, unequivocally says. 

CONSTITUTIONAL LAW: The equal protection principle of "one person, one vote" permits States to apportion legislative districts using total population, and does not mandate that districts be apportioned based upon registered or eligible voter population. [Read Summary Online]

Now the SCOTUS had opined that one person cannot have the one vote that the framers probably intended, even within the constraints of the common sense application of voting rights. State partisan politicians use gerrymandering to destroy the voting rights of citizen groups by drawing congressional district maps so the votes of the district majority will always swamp the votes of its minority, and that way government will never hear the minority vote.  Caucasian politicians have tried to use this to prevent the election of minority (Negro and Mestizo) candidates. 

While many consider gerrymandering terribly unfair, the majority-Negro population of Washington DC elected convicted drug user Marion Barry as Mayor.  To most thinking people, that made gerrymandering seem essential, lest Negroes around the nation accomplish a similar result with their candidate choices. 

Congress and the courts have worked assiduously, though, to give minorities a better opportunity for a voice in government, by allowing official, court-approved gerrymandering by forcing the re-draw of district maps so that at least some districts can include scattered patches of minority communities.   And with the rush of Caucasians to the suburbs from of inner cities like Los Angeles, Chicago, Detroit, and Cleveland to escape the danger of living around crime-infested areas, the remaining largely Negro and Mestizo populations provided the necessary ethnic density to get minority candidates elected.   That's how the abhorrent and crooked Sheila Jackson Lee got elected and has managed to stay in Congress for two decades.  And her own gerrymandering efforts have resulted in the denial of voting power to large swaths of Caucasians in suburban areas wrongly stuck in her district.

Now that Caucasian births number fewer than non-Caucasian votes, the SCOTUS has seen fit to deny voting power to more and more Caucasians by including total body count, instead of eligible voter count, citizen count, or adult count, in satisfying the numeric requirements for representation in Congress.  This means more representatives for mostly-minority residents of population-dense inner cities of the nation.  One needn't be a mathematician to realize that this plan helps to ensure the doom of Caucasian voting power in America, for Caucasian parents procreate fewer children than needed to replenish the Caucasians who die, and Negroes and Mestizos procreate more children than required to replenish their numbers.

Bottom line, the framers and anybody else with common sense have no intention of protecting dangerous civil rights for irresponsible people who will naturally abuse those rights.  Of all the CUSA's rights, none exceed the danger of allowing irresponsible people to vote.  That constitutes the fundamental problem with the language of the 15th, 17th, 19th, and 26th Amendments - they impose no burden of responsibility upon the voters or upon Congress and the states to ensure people do not abuse voting rights through demagoguery, ignorance, and dereliction.

Any Caucasians who disagree with this SCOTUS ruling can do their part by following this plan:

1.  Find a smart, willing Caucasian and procreate;
2.  Move back to the inner cities and prepare to defend your territory.

Bob Hurt
2460 Persian Drie #70
Clearwater, FL 33763
727 669 5511