Foreclosure Defense: Form under New Law could have similar effect of lis pendens or notice of pendency

Form Submitted by Jim McCandless, Esq.

Editor’s Note: This is the form to file under the new California law to stop the lender in its tracks when it ignores the new legal requirements.

In my opinion, this form could arguably be used in other states as an adjunct to the filing of a complaint alleging mortgage fraud on the part of the lender and  particularly where the fraud relates to fraudulent appraisals.

As I have repeatedly stated, appraisal fraud lies at the root of the mortgage crisis — at both ends — inasmuch as the fair market value of the real property was intentionally hyper inflated to cause homeowners to enter into loans that required then to pay back far more than the true value of their homes which in turn deprived both the homeowner and the “lender” (actually the investor in mortgage backed securities) of the security that was represented.

It is not a reasonable assumption that the average reasonable person acting with full knowledge of the true facts would have bought such a security nor is it a reasonable assumption that the average reasonable person acting with full knowledge of the true facts would have borrowed more than their house was worth. This notice, which is specifically provided under California law could be filed and would present a potential cloud on title in much the same way as a lis Pendens — and at the same item decrease the likelihood of the requirement of posting bond.

FORM OF NOTICE

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO

Insert Your Address

________________________________________________ SPACE ABOVE THIS LINE FOR RECORDER’S USE

You

V
Them (Your lender ,trustee ETC.
.

NOTICE OF NON COMPLIANCE
CALIFORNIA CIVIL CODE § 2923.5

NOTICE OF NON COMPLIANCE CALIFORNIA CIVIL CODE § 2923.5

Notice is given that the LENDERS AND OR TRUSTEES LISTED ABOVE has not complied with civil code 2923.5. As such all notices of default and or trustee sales and such other recordings and actions are void as a matter of law.
I have in good faith attempted to mediate the loan and the true beneficiary has refused to negotiate in good faith. They have not complied with the provisions in which they were to meet with me in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgagee,
Beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of the borrower’s financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose.

If we had met the property would have reflected a value of ______________. I am willing to pay an interest rate of _____and I will be able to make monthly payments of__________. The principal balance of my loan should be reduced the present market value of ____________.

In the event this is not acceptable I hereby exercise my right to have the security interest in this property rescinded pursuant to the Truth in Lending Act.

APN: ______ ________ ___________

And with a legal description of:
Lot __ of Tract No. _________, in the City of _____________________, County of ___________, State of California, as per Map recorded in Book ________, Pages ___ and ____ of Maps, in the Office of the County Recorder of said County

Dated ______________ .

____________________________________

ACKNOWLEDGMENT
Subscribed and sworn to before me this ______
day of ____, 2008
____________________________________
Notary Public in and for the County of Los Angeles, State of California

Law Offices of
TIMOTHY McCandless
15647 Village Dr
Victorville, Ca 92392
TEL (760) 733-8885; FAX (909)494-4214

From Foreclosure Offense and Defense: Separation of Mortgage from Note, 2008/10/11 at 6:50 PM

Tags: California law, foreclosure defense, foreclosure offense, lis pendens, Notice on non-compliance
Posted in Eviction |