Tag Archives: Unlawful detainer

Do Securitization Audits Ever Work to regain lost homes in California? YES? Maybe?

CEL NOTES: this looks good—I cannot verify the terms of the final disposition or settlement of the case but it appears to be real—I will update if I can confirm.  The Federal Docket for the case number provided in the article does not show a final disposition of the case.

The Shelley Report – Foreclosure Press

by Deadly Clear

Los Angeles Man Wins Property Back After Foreclosure and Eviction [[[http://justiceleaguetaskforce.wordpress.com/2013/08/09/los-angeles-man-wins-property-back-after-foreclosure-and-eviction/]]]

Los Angeles, CA — (SBWIRE) — 08/07/2013 – Homeowner Mike Cohenshad lost his investment home to foreclosure and was also evicted. A securitization audit company and Pasadena law firm helped him get it back.

Mike Cohenshad lost his investment home in foreclosure and also lost the accompanying Unlawful Detainer Hearing. He was then evicted from the investment property which was sold to a 3rd party at bank auction. Cohenshad hired the Law offices of Art Hoomiratana, a foreclosure defense firm in Pasadena, to seek out damages for wrongful foreclosure. Mr. Hoomiratana’s office immediately hired Paladin Securitization Auditors to conduct a securitization audit to investigate the lender’s standing to foreclose.

The securitization audit found that there were grounds for a Fraud and Wrongful Foreclosure Case based upon statutory violations, promissory estoppel, negligence, negligent misrepresentation, and violation of Business and Professional Code 17 200. Using the securitization audit as evidence, The Law Offices of Art Hoomiratana litigated on these matters and won the home back, post-foreclosure, from the third party who purchased it. The judge found the foreclosure to be illegal and a wrongful foreclosure thanks to Paladin’s audit. The bank was forced to rescind the Trustee’s Sale and agreed to settle out and restructure the client loan including $188,000.00 in deferred principle reduction. His monthly mortgage payment was reduced from $4,981.43 to $2,492.59 and the interest rate was also reduced from 6.75% to 4%.

For reference, the court case is US. District Court Case No. CV13-00722-R (FFMx).

Or visit their site at www.securitizationauditservices.com

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2013 WL 597283 (C.D.Cal.) (Trial Pleading)
United States District Court, C.D. California.
Mike COHENSHAD, Plaintiff,
v.
CITIMORTGAGE, INC., Vericrest Financial, Inc.; US Bank, National Association; and Does 1-100, Inclusive, Defendants.
No. CV13-00722 MMM(FFMX).
February 1, 2013.
Diversity Jurisdiction
Demand for Jury Trial
Notice of Removal
Russ M. Fukano (SBN 114166), Email: rfukano@troygould.com, Annmarie Mori (SBN 217835), Email: amori@troygould.com, Troygould PC, 1801 Century Park East, 16th Floor, Los Angeles, California 90067-2367, Telephone: (310) 553-4441, Facsimile: (310) 201-4746, Attorneys for Defendants Vericrest Financial, Inc. and US Bank Trust, N.A., as Trustee for Vericrest Opportunity Loan Trust 2011-NPL2 (erroneously sued as US Bank, National Association).
TO THE CLERK OF THE ABOVE-ENTITLED COURT:
PLEASE TAKE NOTICE that, for the reasons set forth below, Defendants Vericrest Financial, Inc. (“Vericrest”) and US Bank Trust, N.A., as Trustee for Vericrest Opportunity Loan Trust 2011-NPL2 (erroneously sued as US Bank, National Association) (collectively, “Defendants”) file this Notice of Removal pursuant to 28 U.S.C. §§ 1441 and 1446, requesting removal of this action from the Superior Court of California in the County of Los Angeles to the United States District Court for the Central District of California.
STATEMENT OF JURISDICTION
This Court has original jurisdiction under 28 U.S.C. § 1332 based on diversity of citizenship and removal is therefore proper under 28 U.S.C. § 1441. The plaintiff in this action is Mike Cohenshad, an individual who is domiciled in the State of California. The defendants are as follows:
1. Vericrest is a Delaware corporation with its principal place of business in Texas;
2. US Bank Trust, N.A. is a national banking association, with its principal place of business in Delaware;1
3. US Bank Trust, N.A. is acting as Trustee for Vericrest Opportunity Loan Trust 2011-NPL2, which is a trust. In the Ninth Circuit, a trust has the citizenship of its trustee. Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. Alaska 2006) (For purposes of diversity jurisdiction, “a trust has the citizenship of its trustee or trustees.”); Wells Fargo Bank v. Mayes, 2012 U.S. Dist. LEXIS 35344 (C.D. Cal. Mar. 15, 2012) (citing Johnson, supra, to explain that trust has citizenship of trustee). Therefore, Vericrest Opportunity Loan Trust 2011-NPL2 has the citizenship of US Bank Trust, N.A.; and
4. Defendants are informed and believe and thereupon allege that CitiMortgage, Inc. (“CitiMortgage”) is a New York Corporation with its principal place of business in Florida.
The matter in controversy exceeds $75,000.
GROUNDS FOR REMOVAL
In support of the Notice of Removal, Defendants state as follows:
1. On or about December 3, 2012, plaintiff Mike Cohenshad (“Plaintiff”) commenced an action against defendants CitiMortgage, Vericrest and US Bank Trust, N.A., as Trustee for Vericrest Opportunity Loan Trust 2011 -NPL2 (erroneously sued as US Bank, National Association) in the Superior Court of California in the County of Los Angeles entitled Mike Cohenshad v. CitiMortgage, Inc., et al. with a Civil Action No. of BC496711. True and correct copies of the pleadings served on Defendants are attached hereto. A true and correct copy of the Summons (which was not served on Defendants but a copy of which was obtained online) is attached hereto as Exhibit A. A true and correct copy of the Complaint served on Defendants is attached hereto as Exhibit B. A true and correct copy of the Notice of Lis Pendens served on Defendants is attached hereto as Exhibit C.
2. Pursuant to a Notice and Acknowledgement of Receipt, Vericrest was served with the Summons and Complaint on January 2, 2013.
3. Pursuant to a Notice and Acknowledgement of Receipt, US Bank Trust, N.A., as Trustee for Vericrest Opportunity Loan Trust 2011-NPL2 (erroneously sued as US Bank, National Association) was served with the Summons and Complaint on January 28, 2013.
4. Defendants are informed and believe, and upon that basis allege, that CitiMortgage has not been served with the Summons and Complaint.
5. This Notice of Removal is being filed on or before February 1, 2012, and is therefore timely pursuant to 28 U.S.C. § 1446(b).
6. Pursuant to 28 U.S.C. § 1332(c)(1), “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” No defendant is therefore a citizen of California:
(a) Vericrest is a Delaware corporation with its principal place of business in Texas;
(b) US Bank Trust, N.A. is a national banking association, with its principal place of business in Delaware; Vericrest Opportunity Loan Trust 2011-NPL2 has the citizenship of US Bank Trust, N.A.
(c) Defendants are informed and believe that CitiMortgage is a New York Corporation with its principal place of business in Florida.
7. Plaintiff is an individual domiciled in California. Plaintiff is therefore a citizen of California.
8. In the complaint, Plaintiff alleges that his home was improperly sold at a non-judicial foreclosure sale. Plaintiff seeks a judgment quieting title back to him. His also seeks general, special and punitive damages in connection with causes of action, including fraud and negligence, relating to the purported wrongful foreclosure and related causes of action alleging an improper refusal to modify Plaintiff’s mortgage prior to the foreclosure sale. Plaintiff alleges the loan in connection with the purchase of the property was in excess of $500,000.00. The amount in controversy is therefore greater than $75,000.00.
9. As there is a complete diversity of citizenship, and the amount in controversy is greater than $75,000.00, this Court has jurisdiction pursuant to 28 U.S.C. § 1332.
10. Therefore, this action is removable pursuant to 28 U.S.C. § 1441(a), which states that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”
11. As required by 28 U.S.C. § 1446(d), a copy of this Notice of Removal will be filed with the Clerk of the Superior Court of California in the County of Los Angeles, and written notice of the filing of this Notice of Removal will be given to counsel for Plaintiff.
WHEREFORE, Defendants respectfully request that the action now pending in the Superior Court of California in the County of Los Angeles be removed to this Court and that this Court accept this Notice of Removal for filing in accordance with the provisions of 28 U.S.C. § 1441.
DEMAND FOR JURY TRIAL
Defendants hereby make a demand for jury trial.
Dated: February 1, 2013
TROYGOULD PC
By: <<signature>>
AnnMarie Mori
Attorneys for Defendants Vericrest Financial, Inc. and US Bank Trust, N.A., as Trustee for Vericrest Opportunity Loan Trust 2011-NPL2 (erroneously sued as US Bank. National Association)
Appendix not available.

Footnotes

Plaintiff erroneously sued US Bank Trust, N.A., as Trustee for Vericrest Opportunity Loan Trust 2011-NPL2 as “US Bank, National Association.” Plaintiff alleges that “US Bank, National Association” is a Delaware corporation with a principal place of business in Oregon. Complaint, ¶ 4.

Racial Inequality and Irrational Preferences in Application and Enforcement of Certain Key, Historic, Civil Rights Laws

28 U.S.C. Section 1443 states as follows:

“Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.”

On its face, this statute is color-blind, makes no reference to race, and is absolute.  In practical application, the Federal Courts have rendered this statute all but nugatory.  Anyone who wishes to exercise civil rights removal in the United States today must be prepared to fight to overturn one of the oddest relics of Jim Crow segregation imaginable: Civil Rights actions are still, in large part, said to be available only to cure RACIAL discrimination, and all other kinds of civil rights abuse are largely left immune, literally immunized, and untouched by the Constitution, unlimited by any constraints imposed by fundamental rights or human dignity.

Litigants interested in denials of equal access to the courts and denial of due process, or the existence of statutory economic classes, must ask the courts to analyze the 44 year old judicial construction and application of Civil Rights Removal (28 U.S.C. §§1443(1), 1447(d)) by application of the “strict scrutiny” test applicable all race-based schemes (even those called “benign”) and give that statute the full breadth and strength implicit in the plain language enacted by Congress.  28 U.S.C. §1443(1), a statute tracing its history back more than a hundred and thirty five years, as written, adopted, and codified by Congress into the positive law of the United States, ought to be one of the most powerful engines of civil rights enforcement under the constitution.  The language of 28 U.S.C. §1443(1) is inclusive, rather than exclusive, but it was given an unbelievably narrow construction by the United States Supreme Court in 1966, from which the court has never retreated.  I would submit, and urge all others to argue as well, whether pro se or assisted by counsel, that the racially unequal application of 28 U.S.C. §1443(1) is an affront to all recent U.S. Supreme Court Jurisprudence since Regents of the UC v. Bakke in 1978City of Richmond v. Croson in 1989, and Adarand v. Pena in 1995.

It is also time for the courts to allow removal so that all defendants in, for example, California eviction (U.D., unlawful detainer) cases following non-judicial foreclosures, will be able to put on evidence (as apparently ONLY the Defendants in Rachel v. Georgia have ever been allowed to do, and that in 1966) showing that all the non-racial or racially neutral criteria imposed on the invocation of 28 U.S.C. §§1443(1) and 1447(d) by the U.S. Supreme Court in Greenwood v. Peacock and Georgia v. Rachel do in fact apply to all proceedings, in that these statutes, not quite uniquely, but with discriminatory intent and effect creating disparate classes of litigants more draconian than most, are designed to obliterate the following fundamental Constitutional freedoms: (1) freedom from statutes impairing the obligations of contract, (2) freedom to petition for redress of grievances, (3) freedom from deprivation of private property for public use without just compensation, (4) freedom from deprivation of life, liberty, or property without due process of law, (5) the right to jury trial in all cases where the matter in controversy exceeds $25.00.

So great is the weight of state statutes forbidding any contest against non-judicial foreclosure prior to effecting an illegal taking of property under color of law that even freedom of speech itself is suppressed.

Litigants in non-judicial foreclosure and forcible eviction cases should be prepared to appeal many a U.S. District Court’s denial of their right to present evidence showing (1) that the outcome of all non-judicial foreclosures and all Forcible Eviction cases following the same is uniformly fixed and predetermined, simultaneously by California statutes, court rules and practices having the force or effect of law relating to non-judicial foreclosure and post-foreclosure eviction, as well as other official customs, practices, and policies of the state of California relating to foreclosure and eviction, and having the force and effect of written law, (2) that the statutes fixing and predetermining these non-judicial and judicial outcomes constitute an infringement of the rights to due process, equal protection, and freedom of contract under 42 U.S.C. Section 1981 (if construed in a racially neutral manner), (3) that the statutes, court rules, and state customs, practices, and policies relating to non-judicial deprivation of property uniformly deny due process of law and give unbridled and hence unconstitutional discretion to arbitrary and capricious judicial decisions which all tend uniformly to the suppression of constitutional rights to private contractual formation and equality of access to the Courts, ownership of private property, and individual freedom to offer and give evidence under both 42 U.S.C. Sections 1981 and 1982.

Likewise, the statutory racial language of 42 U.S.C. §§1981 and 1982 themselves must be subjected to strict scrutiny and this court should order it stricken, because there can be no compelling governmental interest in maintaining that:

Section 1981:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens,”

and

Section 1982:

“All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

When the consequence of these laws being so written, in archaic, Reconstruction-era, Race-Related concerns, is to allow states to create, and to allow the Courts to uphold and enforce non-racial categories of disfavored persons, such as Respondents in forcible eviction and unlawful detainer cases, who must always lose, there is a great need for removal to Federal Court to preserve these liberties, and racial discrimination in the enforcement of civil rights is counter to all legitimate purposes of government.  When people are reduced to conditions of involuntary servitude by private economic manipulation and judicial strategems implemented in a matter subservient to those private special interests, the people are reduced to slavery.  It matters little that this is done by the stroke of judge’s and lawyers’ pens and word processors rather by than forcible capture and de jure enslavement, the philosophy of equality and the existence of a free society are equally imperiled.