Tuesday, February 8, 2011

The following is great information about the SB1259 bill that is up for vote either today or very soon.  You must call your senators or email them with support/lack of support and or information that you deem they need to have. 

The following letter was received in my email and permission was granted to print in whole.   Darrell has been instrumental in fighting via preventative measure the corruption in foreclosures.  He details the laws that are consistently broken by banks in foreclosure.  For instance my home was not properly posted and notices were not conforming to state laws.  The sale is void legally just from that aspect. The letter below details Darrell's concerns about the new bill. 

Good day distinguished Ladies and Gentlemen,

I am a distressed homeowner who apparently is about to become a distressed member of the Arizona body politic too.  I have grave concerns about the proposed text of Senate Bill SB1259 which has been assigned to committee.

Here is the proposed text as I understand it:
        Section 1.  Title 33, chapter 6.1, article 1, Arizona Revised Statutes, is amended by adding section 33-807.02, to read:
33-807.02.  Nonoriginator foreclosures; evidence of title; remedy; attorney fees
A.  For any beneficiary who is not the originating beneficiary on the deed of trust, the beneficiary shall record a summary document regarding the beneficiary's legal interest in the deed of trust that contains the following information in chronological order:
1.  The full name and address of record of every prior beneficiary on the deed of trust.
2.  The date, recordation number or other unique designation of the instrument, and a description of the instrument that conveyed the interest of each beneficiary.
B.  The summary document prescribed by this section shall be recorded at the same time and place that the notice of trustee's sale is recorded pursuant to section 33-808 and a copy of the summary document shall be attached to any notice of trustee's sale that is required to be provided as prescribed in section 33-809. 
C.  Failure to properly record the summary document that demonstrates evidence of title for the FORECLOSING beneficiary as of the date of the trustee's sale as prescribed by this section results in a voidable sale.
D.  Any person with an interest in the trust property may file an action to void the trustee's sale for failure to comply with this section and is entitled to an award of attorney fees as well as damages as otherwise provided by law if the person substantially prevails, including an award of attorney fees for any injunction or other provisional remedies related to the claim.

My concerns are that this is a bill that would substantially weaken the potential judicial defenses of a distressed homeowner who is facing a power of sale (trustee’s sale) under a deed of trust.

Let me elaborate where we currently stand.  The current authority on the conduct of a trustee’s sale in Arizona is the Arizona Supreme Court.

Here are the applicable rulings:
Patton v. First Federal Savings And Loan Association of Phoenix (118 Ariz. 473, 578 P.2d 152. Mortgages 353 (1978))
“If a trustee's sale, conducted pursuant to a deed of trust, is held without complying with statutory notice requirements, such a sale would be VOID, for statutes set forth only procedure for a valid trustee's sale. A.R.S. § 33-801 et seq.”

LeDesma v. Pioneer Nat. Title Ins. Co. (129 Ariz. 171, 629 P.2d 1007. Mortgages 352.1 (1981))
Strict compliance with notice requirements is essential to valid sale under deed of trust.”

Schaeffer v. Chapman (176 Ariz. 326, 861 P.2d 611 (1993))
“We repeatedly have held that contracts will be strictly construed to avoid forfeitures.”

Glad Tidings Church of America v. Hinkley (71 Ariz. 306, 226 P.2d 1016)
the law does not favor forfeitures and if a party would avail himself of a contractual provision providing for such a forfeiture, he must comply strictly with all the requirements of the contract.”

Therefore, the Arizona ’s Supreme Court has already settled this matter.  Any Trustee’s Sale which is held without complying with the notice requirements of statutes or contractual provisions is therefore VOID.  If the authority has already ruled and deemed such a non-complying sale as “VOID” why are we introducing the term “voidable” to the mix?  We already have a standard of care that far surpasses “voidable.”

Another matter of challenge is that we are introducing a “summary document.”  A “summary document?”  This would be an affront to a homeowner who does chose to contest the validity of the trustee’s sale process they may currently be navigating.  In court a homeowner has now the rights to protection under the Arizona Rules of Civil Procedure and the Arizona Rules of Evidence.  This is the standard by which the homeowner has the right to challenge the standing of the party designated in the notice of trustee’s sale as the “beneficiary.”  These rules provide hard-core checks and balances that all protections are afforded the homeowner.  With the incorporation of a “summary statement” the details of the trustee’s sale will be subject a lower threshold of proof.  This lower standard will be bandied about it court and the right to challenge the authorization of the named party will becomes less available to the homeowner.  Since the homeowner is approaching the court as the plaintiff they bear the burden of proof.  Once this “summary document” is introduced in court it may become impossible for the homeowner to exercise the Rules of Procedure and Evidence in this matter.

Are we substituting the “summary statement” for evidence?  Probably.  We have a disastrous situation in the United States .  The problems of forged, fraudulent and incomplete documentation are showing up everywhere.  Arizona, primarily a non-judicial trustee’s sale state, is sure to discover that just as many if not more abuses of robo-signing and document fabrication have been perpetrated on the body politic of Arizona as anywhere else.  Why would we roll out the red carpet and lower our defenses to the continuous dubious practices of foreclosing entities?

What form is proposed for this “summary statement?”

As I read the proposed bill I can’t help to notice that there are NO assurances, attestations, certifications or acknowledgements required by the parties designated to make such a “summary statement.”  Well, how are distressed homeowners supposed to hold a party accountable to a “summary statement?”  Attorney’s fees are not the answer!

So what is really needed to help protect the body politic against egregious foreign corporations?  I’m glad you asked.
1.                                          The document needs to be an affidavit not a “summary statement.”
2.                                          The affidavit needs to attest to strict compliance to the details of trustee’s sale (foreclosure) process.
3.                                          Any affidavit of compliance should be attested to by the party that is tangible to the distressed homeowner.  That would be the trustee conducting the sale.  Having an eternally questionable (as to standing) party sign anything is pointless.
4.                                          The affidavit needs to be sworn to under penalty of perjury with a proper acknowledgement.
5.                                          Failure of the affidavit needs to result in a VOID sale as the Arizona Supreme Court has ruled.
6.                                          Failure of the affidavit needs to result in attorney’s fees.
7.                                          Failure of the affidavit needs to result in damages awardable to the homeowner.
8.                                          Failure of the affidavit needs to result in a monetary fine to the trustee.
9.                                          Cumulative failure of a trustee’s affidavits needs to result in sanctions and a loss of trusteeship privileges.
10.                                      A pre-established form upon which the trustee makes their affidavit.

Please contact me if you have any questions or comments.

May your possibilities be unlimited and your opportunities bountiful.

Darrell Blomberg
“Emissary of Observation”

Darrell Blomberg

912 E. Cambridge Av.

Phoenix , AZ   85006-1027


No comments: