Tag Archives: non-judicial foreclosures

U.S. SUPREME COURT SLAMS OBDUSKEY’S DOOR SHUT!

(BREAKING NEWS — OP-ED) — The author of this post is a consultant to attorneys on chain of title matters and issues involving “the system of things”.  Please read the attached ruling and take from it what is necessary for your educational benefit.

While this ruling was not expected to be a total slam dunk of “per curiam” nature, it sent a hard message to U.S. consumers regarding the collection of a debt versus the enforcement of a security interest.  Obduskey brought suit in the 10th Circuit on matters involving the FDCPA (debt collection) against a law firm that was simply enforcing a security interest.

See the High Court’s ruling here: Obduskey v McCarthy & Holthus LLP, 586 U.S. ___ (2019)

It’s a 12-page ruling (with syllabus).  It didn’t take long after oral arguments to come with this diatribe either, which brings me back to another major issue …

HOW is a trustee in a non-judicial setting supposed to enforce a security instrument?  Foreclose on it.

A trustee cannot enforce a security instrument if the chain of title documents are NOT in order.  In other words, if the opinion says the foreclosure mill law firms can simply declare they’re enforcing security instruments, when the end result will be to foreclose and sell the property to pay a sum certain (a debt), then this is all about “language” and our understanding of it.  If we can’t use the FDCPA to back our claims, as of this ruling, then there is only one other strategy left to resort to: attack on the chain of title!

IT’S ALL ABOUT THE CHAIN OF TITLE

You signed a security instrument at closing.  No one held a gun to your head.  In non-judicial states, foreclosure is conducted by enforcing the security instrument and the promissory note you signed is irrelevant.  Whoever has the authority to enforce the deed of trust is empowered to do so.

The problem is … in the process of “patting themselves on the back”, the non-judicial “trustees” attempting to enforce the security instrument had to rely on the instrument itself … playing through the chain of title … through potential suspect bogus assignments … in an effort to “give” themselves authority to foreclose which would normally be considered ultra vires (without authority).

One such case that Al West and I will be teaching at the upcoming Foreclosure Defense Workshop in Las Vegas (April 6-7, 2019), is a case out of California that has great instructional value … a case that went sideways for the REMIC … a case where the foreclosure was declared “unlawful” by the appellate court … AND REVERSED!

More importantly, the assignment was attacked!  The superior court judge (of course, as expected) tossed the whole matter out, forcing the homeowner to appeal him.  The appellate court ruled that the ASSIGNMENT WAS VOID!  As a result of the assignment being VOID (NOT VOIDABLE), the case was remanded as REVERSED as to the foreclosure; REVERSED as to the chain of title assignment attack; and REVERSED as to slander of title, because all of the issues weren’t presented properly and thus, weren’t addressed properly by the lower court.  The instructional value of this case is huge: Gauna v. JPMorgan Chase Bank, NA

We will be addressing the specific issues necessary to attack the assignment at the upcoming workshop!  We still have seats available.  And just when you thought there was no end in sight, we get an instructional unpublished opinion that validates the Cancellation & Expungement Actions that Al West has been using the past several years to wipe out security instruments!  Now you get to see Al West share this information in a live event in Las Vegas (in a 2-day power-packed informational workshop).

In fact, several attorneys from around the country are attending.  What does that tell you?   Maybe you should be there too?

See the attached Registration Form for details: FDW REGISTRATION FORM_LAS VEGAS_2019

Want to see a schedule of what’s being taught, click this link: FDW 2019 WORKSHOP_LAS VEGAS_SYLLABUS

The new book is out … and will only be available to workshop attendees:

We are NOT selling this book online, because it contains information that (by itself) would be like giving a baby a stick of dynamite with a short fuse!

If you think we can’t use this material to potentially get foreclosure mill attorneys disbarred, think again!

If you think we can’t use this material to attack notaries in a more effective manner, think again!

There are very few seats left at this workshop … we are almost sold out!  We cannot expand the room to accommodate more attendees.  You have little time to waste.  We will allow you to bring your attorney to the event at the “COUPLES RATE”.  Contact us through the CLOUDED TITLES website email link (click on the TITLE) for more information about space availability!

We will show you WHY this attack plan (on steroids) works and why it has worked in the past (when properly litigated)!

THIS STUFF WORKS IN ALL 50 STATES!  

WE DO NOT USE IT IN FEDERAL COURT!

WE SHOW YOU HOW TO KEEP IT OUT OF FEDERAL COURT!

WE SHOW YOU WHY JUDGES WILL HAVE TO PAY ATTENTION TO IT!

See you there!

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FDCPA CHALLENGED IN NON-JUDICIAL FORECLOSURES: U.S. SUPREME COURT TESTIMONY

(BREAKING NEWS) —

Here’s a rare treat … oral transcripts from Dennis Obduskey v. McCarthy & Holthus, LLP:

obduskey v mccarthy & holthus llp, scotus no 17-1307_oral transcripts of supreme court proceedings

(OP-ED) —

We’ve been waiting on the arguments here, because how the FDCPA is interpreted when it comes to foreclosures in non-judicial (Deed of Trust) states is at issue and has been in conflict among the federal circuits as to whether the enforcement of a security instrument (the actual deed of trust) constitutes the “collection of a debt”.  The 10th U.S. Circuit Court of Appeals (where the case originated) says enforcement of a security instrument is not a violation of the Fair Debt Collection Practices Act because it does not constitute debt collection.

Part of the problem here, is that it is and it isn’t (enforcement of a collection of debt) but an enforcement by the Trustee to sell property which is collateral for a debt (the note).  McCarthy & Holthus LLP is a known law firm that is part of a nationwide network that foreclosures on property wherein the borrower is claimed to be in default because of non-payment on the actual obligation (the Note).

Other courts have narrowly interpreted the matter in both ways.  This is where the conflict has occurred and this is why SCOTUS is hearing the matter.  If the Trustee is only attempting to satisfy the Lender’s need to recover the collateral that was pledged and does nothing more than use the contractual obligation of publication and sale to satisfy the terms of the security instrument (deed of trust) … that’s one thing.  The second the Trustee steps over the line and retains a law firm to enforce the terms of the security instrument and demand “payment” of a “sum certain”, THEN the attempt to collect a debt IS IN FACT, where misrepresentations occur, which would constitute a violation of the FDCPA!  My non-lawyer wisdom tells me to let YOU be the judge here!

If the law firm has all of its ducks in a row, that’s one thing.  But in this case, the argument tends to indicate it didn’t, which is why Dennis Obduskey filed suit.   This case represents one of the biggest challenges to non-judicial foreclosures in the United States; thus, this is worth the read if you are contemplating such an action.  Enjoy!

P.S.: The same amount of federal and state conflict has occurred with the MERS® System and the way the courts have treated it.  Why SCOTUS won’t hear those relative arguments may change.  For now, that issue is at a standstill.

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