The First West Keynote to this Dismal Case Reads:
266 Mortgages 266IX Foreclosure by Exercise of Power of Sale 266k339 Persons Entitled to Execute Power 266k341: Under trust deed the statute authorizing the “trustee, mortgagee, or beneficiary, or any of their authorized agents” to initiate the nonjudicial foreclosure process under a deed of trust does not authorize the borrower to bring a court action to determine whether the owner of the note has authorized its nominee to initiate the foreclosure process. West’s Ann.Cal.Civ.Code § 2924(a)(1).
Read and study this February 18, 2011 opinion from the San Diego Court of Appeals and (winning) brief filed by MERS in the case of Gomes v. Countrywide Home Loans—and weep appropriately. Of course, the case does not directly address the question, though the California Courts’ predictable answer is almost a foregone conclusion, but whether the statute expressly authorizes it or not, is compliance with the law not always subject to judicial challenge? The common law allows any contracting party to seek “further assurances” that the pre-conditions to contractual performance have been performed by the other. The “impairment of contracts” clause of the 1787 Constitution, Article I, states that neither Congress nor the States may pass any law impairing the obligations of contract (nor by implication, any of the rights of contract—and this is further clarified in 42 U.S.C. Section 1981).
Further, the First Amendment allows an open-ended right to petition for redress of grievances. The Fifth Amendment protects all Americans from state-assisted takings of property without due process of law. The Ninth Amendment reserves all rights not expressly limited or delegated under the Constitution to the people. The Fourteenth Amendment expressly “incorporates” the Bill of Rights to the States.
Is there any challenge to the California foreclosure system left other than constitutional? Constitutional litigation is long, drawn out, difficult, and expensive—does anyone have the willpower and persistence? If so, please get in touch and let’s do it. I’m sick of starting things and being unable to finish because of lack of funds, enthusiasm or drive. This is “do or die” folks. The one licensed attorney who ever agreed and promised to help me fight this fight (Dr. Orly Taitz, D.D.S.) ran away like a plucked chicken and left me holding the bag on several cases floundering. But it appears to me that if Gomes v. Countrywide Home Loans correctly states the law, custom, practice, and policy of the State of California, the law must be changed—and political action is probably more reliable than litigation, even in the short run.
The State Courts of California seem (mostly) determined to affirm the application of California 2924 that will most quickly eliminate private property ownership rights. The Federal Courts seem anxious to avoid any rulings and the will use Rooker-Feldman, Younger v. Harris, or antiquated, anti-majoritarian, racially limited theory of civil rights laws (e.g. 28 USC 1443, 1447(d) or 42 USC 1981-1982) to refuse to rule or take any action.
MERS is the cutting edge of creeping communism in the United States of America. If we cannot destroy MERS then private property rights in this country are basically going to be destroyed in just a few years. I stand ready to lead the political fight. I have all but given up on litigation. People do not understand what it really takes. Dr. Orly Taitz promised and committed to lead this struggle in 2009, and then she ran away for other reasons. Michael Pines filed a great complaint in the Northern District of California, and then abandoned it. I urge you to contribute and support my campaign for U.S. Senator from California. Call 310-773-6023 or 310-278-9683.
The critical portions of the Gomes opinion are as follows (Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149, 1154-55 (2011), 121 Cal.Rptr.3d 819, 823-24, 11 Cal. Daily Op. Serv. 2322, 2011 Daily Journal D.A.R. 2681):
California’s nonjudicial foreclosure scheme is set forth in Civil Code sections 2924 through 2924k, which “provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.” (Moeller v. Lien (1994) 25 Cal.App.4th 822, 830, 30 Cal.Rptr.2d 777 (Moeller ).) “These provisions cover every aspect of exercise of the power of sale contained in a deed of trust.” (I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285, 216 Cal.Rptr. 438, 702 P.2d 596.) “The purposes of this comprehensive scheme are threefold: (1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser.” (Moeller, at p. 830, 30 Cal.Rptr.2d 777.) “Because of the exhaustive nature of this scheme, California appellate **824 courts have refused to read any additional requirements into the non-judicial foreclosure statute.” (Lane v. Vitek Real Estate Industries Group (E.D.Cal.2010) 713 F.Supp.2d 1092, 1098; see also Moeller, at p. 834, 30 Cal.Rptr.2d 777 [“It would be inconsistent with the comprehensive and exhaustive statutory scheme regulating nonjudicial foreclosures to incorporate another unrelated cure provision into statutory nonjudicial foreclosure proceedings.”].) 5
5 Although “California courts have repeatedly allowed parties to pursue additional remedies for misconduct arising out of a nonjudicial foreclosure sale when not inconsistent with the policies behind the statutes” (California Golf, L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053, 1070, 78 Cal.Rptr.3d 153), Gomes 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. As we will explain, such a requirement would be inconsistent with the policy behind nonjudicial foreclosure of providing a quick, inexpensive and efficient remedy. (See Moeller, supra,25 Cal.App.4th at p. 830, 30 Cal.Rptr.2d 777.)
By asserting a right to bring a court action to determine whether the owner of the Note has authorized its nominee to initiate the foreclosure process, Gomes is attempting to interject the courts into this comprehensive nonjudicial scheme. As Defendants correctly point out, Gomes has identified no legal authority for such a lawsuit. Nothing in the statutory provisions establishing the nonjudicial foreclosure process suggests that such a judicial proceeding is permitted or contemplated.
1 *1155 In his declaratory relief cause of action, Gomes sets forth the purported legal authority for his first cause of action, alleging that Civil Code section 2924, subdivision (a), by “necessary implication,” allows for an action to test whether the person initiating the foreclosure has the authority to do so. We reject this argument. Section 2924, subdivision (a)(1) states that a “trustee, mortgagee, or beneficiary, or any of their authorized agents” may initiate the foreclosure process. However, nowhere does the statute provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized, and we see no ground for implying such an action. (See Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596, 113 Cal.Rptr.3d 498, 236 P.3d 346 [legislative intent, if any, to create a private cause of action is revealed through the language of the statute and its legislative history].) Significantly, “ [n]onjudicial foreclosure is less expensive and more quickly concluded than judicial foreclosure, since there is no oversight by a court, ‘[n]either appraisal nor judicial determination of fair value is required,’ and the debtor has no postsale right of redemption.” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1236, 44 Cal.Rptr.2d 352, 900 P.2d 601.) The recognition of the right to bring a lawsuit to determine a nominee’s authorization to proceed with foreclosure on behalf of the noteholder would fundamentally undermine the nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for the purpose of delaying valid foreclosures.