Much of the of this letter was written over the course of the last three years and updated as I went along, but I wanted to add it all to help you understand. I am sure you like most wont read this novel but I will still be sending it! I am contacting any and everyone I can till SOMEONE that matters actually cares enough to REALLY LOOK INTO OUR STOLEN HOME! I am only seeking to be heard, and ACTUALLY LISTENED to by SOMEONE, and you kindly provided an ave to allow me to address you even if you CANT WONT or Don’t help in any way at all, even if you don’t support the homeowners whom were honest, I am still going to try…. but I am begging you!, They may “have our home: but we wont stop fighting for it!
I am just a layman in terms of Legislation, Bills, Law changes ETC.. But my reasons for writing you today are to ask you for your help. Over the past year and a half I have went from a “regular Joe“ as far as knowing our laws and actually nothing more about mortgages than you get one when you buy a house to now being told by various folks, even retired Judges that I should be a Fraud defense attorney for a living they have even dubbed me the nickname of “Beckovich“ as silly as it is yet what an honor I must say. Well frankly as much as I rather have not “learned“ all I know, I am now in it for the longest haul ever and will not give up fighting for not only my family but for thousands of others just like mine. Hence why I again and am on a letter campaign and telling our story, which sadly is the story of so many others. My journey has definitely not been a dull one by any means and all that we have been through and are still going through gets baffling even more by the day. Heck we moved into a temporary house to help out my old boss so her can short sale and two months in find out that he hasn’t paid the mortgage since JUN 2012 n we moved in in 10 2012 and pay 920.00 a month and now we have a NOTICE OF TRUSTEE SALE here too……. FOR REAL??????? Just when you think it couldn’t possibly become worse…
I get smacked into the reality of this MAJOR CRISIS our State, Country and so many families are going through. Many gave up the fight, others lost it to the point of their own deaths as sad as that reality is. I WONT GIVE UP and I WONT, so I can be the voice of all the others that want to have one and started like me…..The misery makes me more determined even when I am at my wits end. My story BELIEVE THIS OR NOT will be summarized, TRUST ME, until you decide to read all of my Pro Se filings as well as when we had an attorney for a time and the mounds of documents I have entered into evidence as well as the numerous more I have still waiting to use you will see, THIS NOVEL really IS just a summary!
I thank you for taking the time to read this and really appreciate a reply, Please don’t worry if it’s a “I cant Help you”” letter, I have to many to count and continue to collect those. As I said, I will still keep sending them. I know it will be a battle but I am on the front lines and as a Native of AZ, I want to make it better for everyone. I value your input good and bad and appreciate your response when you have the time.
My husband and I tried for well over one year to get a loan modification on our home.NUT THIS IS NOT ABOUT A DENIED LOAN MOD!!!!!! I have been writing letters for just as long it seems to the appropriate federal, state, local, agencies regarding the battle for our home. I feel that my letters and others may have contributed to the request to halt foreclosures in all the states as well as the mass changes and notice of what’s been happening since I started… which was even before REAL ESTATE and all its “names“ were household topics daily. We only stopped paying the mortgage after Aurora Loan Services denied us any hope of a loan modification and we tried and asked for help well before, WELL BEFORE it came to it. We have been in our home 13 years now and I don’t want to leave it. Aurora Loan Services denied us a HAMP Modification. It was their contractual obligation to give us a modification due to our loan being a Fannie Mae loan, according to all I have read, of their policies, the HAMP and numerous other documents, white papers u name it I have most likely read it or will!. We tried every avenue there was to find a resolution to the situation with Aurora Loan Services. I have read every one of my loan documents and again plan to file RESPA and TILA complaints against Aurora Loan Services and others involved even though they have done me no good as of late in already doing do that is, I will NOT GIVE UP though ya see!! I will continue to try though. This loan WAS more than a predatory loan and if we had known then what we know now we would never have refinanced our home nor bought it in the first place as sad as that is to say really!
Our Fraud, deception, criminal activity actually goes back to the day we bought this, our first home, way back in 1997 and it is now all so obvious its makes me cry a lot. Yet I get back up and fight. I have sent letters to President Obama, Senator John McCain, Senator Russell, Senator Kyle, The Office of Thrift and Supervision, FTC, HUD, Fannie Mae, Aurora Loan Services, Mayor of Gilbert, AZ, News Station, Gov. Jan Brewer of AZ, The Arizona Attorney General Office, YOU NAME IT, EVERYONE Knows my name I bet ;0) . I have sent one there. Go ahead Google my name you will be in for a treat. I am known like a thorn in everyone involved sides as the prickliest of thorns, I was literally finally told, that when I call the screen flashes and they are told not to talk to me. YES SERIOUSLY….. All the way up the latter’s of Fannie Mae, Lehman Brothers , etc.…. think big,,,, I been there, called there, wrote there ..SOMETHING there…I have filed all appropriate documents including a complaint to the Office of Thrift and Supervision, Congress, FBI, I wrote the Oversight Committee and got a nice response actually, you get the idea Sir/Ma’am. All of which my complaints have never been answered with the exception of Sen. John McCain and The Arizona Ag’s Office, as well as the Mayor Of my hometown of Gilbert, Mayor Lewis. Or if they are it’s a I cant help, or when they do,, ALS responds and even though the answers are plain, bold face lies that I already sent the supporting documents to the requester of help I had seeked, they seem to allow it to continue, send me what they received and say “Well see we helped… vote for us next election or, Hey we sent a letter what do ya want sorry, etc. etc.” Its ok .. Again I am use to it. Yet I WILL NOT GIVE UP!!
We go to our courts and our government for help in matters such as when the laws are meant to hold banks accountable for their fraudulent and illegal activity. In Arizona it seems some of our Maricopa County Superior Court Judges are seemingly, more interested in punishing those who didn’t break any laws, namely homeowners, instead of punishing the banks who blatantly break the laws, create fraudulent documents, try to illegally foreclose, and then lie about it. Including that “You don’t get a lawyer your going to loose” as we were told at our last hearing, yet the previous hearing he praised our good faith and hindered the Defendants Council on their breach of contract and bad practices etc. So needless to say we were stumped. I have learned more, received new help in the fight among others like us, and will be filing a newly written First Amended Complaint and Motion for Summary Judgment, better written and more to the point that my meager attempt so many months ago before I spent my life, every free minute, researching, learning, studying… doing the whole…. Lets learn all an attorney learns the best we can without a profession or the bar can attitude tucked in my belt. We filed suit against our PREVIOUS loan servicer, yes you read that correctly, PREVIOUS …. Aurora Loan Services, MERS, and Cal Western Reconveyance. Since we had no choice after they transferred our servicing to IBM Lender Business Process Services, as well as Fannie Mae (who know when the latter happen)and are attempting to foreclose on our beloved home, They ALS transferred servicing effective as of Aug 01,2010 then pursued Foreclosure JULY 22, 2010 anyway. Our suit claims that the Defendants lack standing to foreclose for a multitude of reasons, including bogus and fraudulent assignments with forged signatures, (with numerous recorded copies of different signatures of the same signer, only recorders office copies of Promissory Notes (one with hand writing, one without), a note that had been illegally securitized, possible four and many more so far times that I have uncovered and an inability to produce a copy of the original Promissory Note. They have not submitted ANYTHING but the normal “home docs on the recorders site as so have we and THEN SOME for us though….They still will not prove that they were the lender and had standing to foreclose despite the fact that it was and continues to be document accessorized, proven by us to the best of our knowledge, that no one knew who to pay even them. You can research our Case at Maricopa County Superior Court SE, CV2010-099383 or I can send you copies if you care to read them. As I said this will be a “SHORT version” of our plight so please if you have questions ask…..even though this totally does not seem the SHORT VERSION. I promise you it is. EVEN THOUGH THEY HAVE OFFICIALLY STOLEN OUR HOME NOW.
For these reasons and others beyond our control , we had stopped paying our mortgage approx. 9 months prior, with a now major concern that without proper proof of who owns our note, now even trying to get help to no avail, something must be terribly wrong, especially when we had never been behind before and even paid between 100 and 400 more every month we could throughout the loan, on a regular basis, towards our principal that we just could be paying the wrong party, not to mention that the chain of title on our home had officially been clouded as a result of the fact that we now know our loan had been securitized possibly several times over. Seriously. If you look at our credit report it even looks as if we were somehow, someway paying THREE mortgage companies at one time during a period. REALLY….. This is the same story that is playing itself out in thousands of cases around the United States and we have continued to keep them reminded and the court that the Defendants lack standing to foreclose, EVEN THEY ADMIT TO “ we don’t know why were here” but the Judge (Grant) lets it continue.Then he has pushed it to another Judge as he went to another division and we PRAYED This one and the rest five total, would really read what is happening to us. Obviously not, We prayed that SHE would notice that they are unable to identify the real lender, OUR “LENDER” was liquidated in 2008 as we have filed evidence of and THE FDIC, AURORA every named company I have filled in that had anything to do with our loan cant name and the unnamed others I cant find. None of them know where the original note is, and they all know that the loan has been securitized, and the assignments and other related documents are forged and robo signed. PLAIN AS DAY. Even for me a layman. Throughout the process of hearings, Judge Grant scoffed at us for being pro se and discussing matters that don’t have anything to do with the fact that we hadn’t paid our mortgage we continued to this day willing and wanting to pay OUR MORTGAGE!… and that fraud is there yet we shouldn’t bring it up as it doesn’t seem to matter to him most days, nor any of them. We feel he( the first judge, has generally behaved as if his decision were already made – in favor of the banks. It seems as we do not do the evidentiary hearings correctly as we did not Reintroduce our already extensive exhibits at these particular hearings, not to mention the fact after being scolded by the Judge that HE KNOWS OUR FILE INSIDE AND OUT, I HAD TO POINT OUT THE FACT That he already denied the defendants motion to dismiss in the previous months when he started to rule on it again. Although all our supporting evidence was attached to the original complaint as well as in our response to defendants motion to dismiss (and the defense most certainly was familiar with these documents).The Judge in essence did the same thing as a recently denied case such as ours with similar issues in MCSC, when that Judge to seemed to become the Bank’s Attorney and began quoting the law that this evidence could not be used because it was not provided in the exhibits for this particular hearing, I reminded him I must of misunderstood how to conduct an evidentiary hearing, that I’m in fact NOT an Attorney and if I could afford one I would have one. Astonishingly, It still seems our “previous” Judge wasn’t interested in fake and fraudulent signatures, broken laws about securitization and, lack of standing to foreclose, or any of the laws governing the mortgage or foreclosure process, including the obvious Fraud, Forgery and other issues presented by us. Instead, that he is not interested in Robo Signers or Standing, Show me the Note doesn’t work here he says, even though I many many times pointed out its not show me the note, its show me the HOLDER in DUE COURSE, the one with STANDING, especially since the Defendants admiringly transferred our “servicing” and they themselves are “ just a servicer” and “ don’t understand why were here” Yet it only took them 4 hearing to admit it after we Plaintiffs Plead our BEST PRO SE DEFENSE in two previous evidentiary hearings and after finishing, were still “CONTINUED” for what ever reason the Judge decided, the last hearing, because “if you don’t get a lawyer your going to loose” reason so he spoke on record. I don’t know weather the Judge lacks the understanding of the law surrounding ownership, custodianship, endorsement, wrongful lien, False Claim Statutes and transfer of mortgages and financial instruments, or is he in silent partnership with the actual banks who attempt to perpetrate fraud on the people like us and steal homes that aren’t theirs to take. In my mind as I pointed out to the Judge, it is LEGAL, HOME INVASION WITH PAPER AS WEAPONS period! Just sayin.……. Or when the facts of securitization was mentioned, he again brushed it off with a look of inadvisability, a wave of the hand or just ignored it as it did not matter it seems yet we Have to constantly remember that we must have proved something, so many months ago, at our TRO hearing to be granted such and to be kept in court fighting this long wouldn’t‘ ya say?, at least I pray so! He must have at least acknowledged the fact that we have had an unbelievable amount of evidence supporting everything we have been presenting.
I admit, I am proud of the Judge for that, but cannot understand at all, why it is continuing this long and we are now the bad guys again. Is this what it feels like to be found guilty of murder you never even were within 1000 miles of and spend twenty years on death row trying to get someone to listen? That’s sure what it feels like now I must say, yet I WILL NOT GIVE UP. Seemingly all because we cant afford an attorney, thanks to loosing everything almost, but our dignity, and that is desperately shaken by these crook lender, servicer, investor PREDATORS.!
Can I DO THIS TO YOUR HOUSE IF I FILE THE RIGHT FAKE PAPERS I asked him. (the Judge), appropriately and with tears by the way and in utter honest questioning as well. Who do we pay? Why should we just pay whoever is asking for the money especially when they acted so suspicious when we needed help for the first time in 11 years or so? Shouldn’t we be entitled to see proof that the recipient of those funds is the rightful owner of our Note that we have worked so hard to maintain? That is all we have asked for. Why are ALL our loan and Note transactions are so poor and sloppy, why there are so many different variations of the same signatures even my own husbands when I SO KNOW HIS SIGNATURE AFTER 16 years?, why is our Note in a Trust that we were never told about, and why they are lying about all the submitted and uncommitted to us, evidence. Or even the NAMES, PSA, POOLS, TRUSTS, ETC. that show our MUDDY chain of title for that matter, no dice their attorneys’ say…. Uh why??? We ask now as so many others do, especially in Arizona, should there be an investigation into why our courts don’t actually pay attention to the law and the evidence when it is there? Doesn’t it matter to you that houses are going to the Servicer ALS/LBPS when they never loaned any money on the transaction and they never purchased the obligation? Why are they still getting free houses, based solely on their ability to forge and fabricate documents just as they did when the loan was originated and sadly many courts look the other way so they do not dare set a PRECEDENT or go against others in their profession?
Aurora Loan Services, Fannie Mae and everyone involved has stripped us of any retirement, all of our savings and any future as we grow old. My husband was beside me every time I talked with a representative of Aurora Loan Services. He saw the stress that Aurora Loan Services and all involved has caused us and so many others, yet still, I WILL NOT GIVE UP. My daughter will have her childhood home as is my dream for her and she will see and she is learning to fight for what she believes in , fight for the truth, justice and honor and to fight for those who cannot or will not fight for themselves, to be the voice of help for others and remember, what you do today sets tomorrow in motion. I am not perfect at all and have done wrong in my life, but I am not a crook and I give more than I take. I would appreciate if you would help us, and I also ask that maybe you or someone you know may help and forward this letter on, as I plan to make changes for us all, one step at a time, no matter how small, those folks need to see how it feels on the other side. Victims of murdered family members have rights, as sadly I to am one, yet we feel all victims of every predatory crime should have just such rights and in order to appreciate those very ideals, honors of having such and those very freedoms we as Americans have, you must also FIGHT for them as individuals, either as one voice or your small voice for all, That includes to Fight the right, appropriate ways, as I am trying to do now, no matter what anyone else thinks different of me, I truly am. I would like to learn to change our legislation to not only stop this kind of sadness but to make our laws even better for everyone. Not only is this a crisis in my HOME State of Arizona but a problem in every state in the union. This foreclosure crisis must be stopped for our economy to recover.
This is just a taste of our nightmare, lets see who really cares………….
So to add even more of this from the homeowner’s perspective, the non-judicial foreclosure process is harsh in its treatment of homeowners because there is no judicial oversight. It states under established Arizona law, a beneficiary without the authority to enforce the note clearly lacks the power to initiate foreclosure. the beneficiary must have the right to enforce the obligation the deed of trust secures. The integrity of our legal system depends upon all parties following the rules United States Courts and laws of our lands but most don’t! WHY?????? We as homeowners HAVE to … why doesn’t anyone care that many court are not???? We will NOT give up on attacking the origination of mortgages because that is exactly where the fraud started. There is no doubt what would happen if any one of you went into a bank and asked for a loan, got approved and then showed up to sign as John Smith, authorized signor for XYZ Corp., as attorney in fact for ABC Corp. as assignee of DEF Corp, nominee payee on the promissory note and designated lender for MERS, the secured party. Not only would you be thrown out of the bank, you would be reported to authorities as operating some sort of scam. It is a scam. So can you please tell us then…..Why do we have such defective paperwork and why are the banks and servicers and “Investors” not even true ones at that such as in our case “Fannie Mae” fighting so hard against revealing the facts of each financial transaction recited in each fabricated document? Well it really is plain and simple. There was not a financial transaction involving the borrower (Us) and the lender that is recited in those documents which is in our case UNIVERSAL SAVINGS BANK, whom again is and has been DEFUNKED for years! The banks (Lehman, Aurora, Fannie Mae, CitiMortgage, Principal Residential, Stratford Mortgage, MERS, IBM LBPS have all inserted themselves in some shape or form into the process of our home documents thus complicating the transactions with false claims of securitization. That in fact DIDN’T EVER HAPPEN LEGALLY! EVER! Thanks to these folks, our result is that the real transaction in which the REAL bank loaned money to the borrower (US) is completely undocumented, for the sole purpose of enabling the banks to claim ownership as the “Loan” went up the securitization ladders and was sold a dozen times if not hundreds of times at the same time even and under the heading of securitization, assignment, allonge, endorsement, credit default swap, insurance etc. I have proof of minimum of twenty plus different transactions so far and NO ONE in the State of AZ or the Justice System seems to care. So now the proceeds of this fraud on many homes and our own, thus far, have gone solely to the banks and servicers, purported investors and never to the ACTUAL investor who is honestly owed the money. If indeed there even IS a TRUE ONE!
So you see and have seen many times over across the country that in our “case” too, That BOTH the lender and the borrower (US) are stuck with an undocumented loan leaving the lender without adequate information or protection and the borrower owing all the money borrowed on terms that cannot be determined: the terms expressed in the securitization documents do not match the terms of the note. Even if the terms of the securitization documents did match the terms of the note, it doesn’t matter because the money trail shows that the investment bank ignored the REMIC trusts just as they ignored the laws regarding transfer of interests in loans and recording. Just like they ignored all state and federal laws regarding real property transactions and consumer fraud laws, and a multitude of other broken laws statues and ethics along the way, to steal homes from unknowing people just like us and worse yet from the folks that HAVE NO CLUE and believe that their loan is legit, since heck the banks appreciate them ore then anyone since they don’t have to argue the fraud and it goes as planned but the fraudsters. So the goof folks trying to do the honest right thing such as decent, real investors/lenders then advance money believing that it will be used in the way described in the prospectus and PSA, when in fact, nothing of the sort occurred. Smart Fannie Mae, except you are getting caught little by little……And the borrower believing that he or she was entering into a standard mortgage within the rules of industry standards for lenders, is left with signing documents that USB is the lender, when USB was a shill — paid for use of its name in the transaction and thus limiting the ability of the borrower to either rescind or make claims under predatory or deceptive lending practices. In our case it was Really possibly Aurora Loan Services with the help of Lehman Brothers FSB as the docs THEY sent me show so well and in plain text yet don’t matter to the LAW of our land! All that matters is we had not paid the mortgage, no the three years we have fought long and hard to prove the fraud, nope, we just want a free house they say…. NO WE JUST WANT A LEGAL HOME, to raise our family as we have been and thought we had for the past 14 yrs. of owning it!
It makes it simpler even still that the fact being that neither the borrower nor the lender know each other, nor will ever meet each other or share any documents on which both of their signatures appear based upon fair bargaining. Then the banks and servicers simply step up to the plate and hit one out of the park every time they foreclose because they are getting property based on a non-existent loan in which they neither funded nor purchased the loan.Those are the documents that are recorded and that is why any buyer of real property needs to understand what is happening and fight back against this sadness and shame. We are and will continue even as Fannie Mae is stealing our home. We wont give up! We want our home, we EARNED our home and have paid for our home FAIR AND HONEST unlike they who have stolen it! Why cant anyone in the law here in Arizona see that it only takes an accounting from BOTH the Master Servicer and all sub servicers that of which will clear up all the money that came in from any investors, borrowers and other parties and all the money that went out. This is how we honest people can then determine how much was paid or should have been paid by the banks as fiduciaries or agents of the investors. My researching our home loan at 234 E. Heather Ave Gilbert AZ 85234 ALONE, seemingly indicates that the total payments received on behalf of the “possible” if any that is…..real creditors seems to be actually more than the obligation owed to that creditor which means that for that creditor, the loan proceeds should be corresponding reduced. That means the notice of default, notice of sale, foreclosure lawsuit are all based upon fake figures that at the very least should be reduced at minimum period. I was taught and have learned extensively these last 3 years alone that under our laws, if a borrower has been defrauded under these facts, he is entitled to restitution under civil or criminal proceedings, which means that payments of actual money to actual recipients who may or may not have turned the money over to actual investors should be credited to the investor and therefore correspondingly reduce the principal due on loans funded by that creditor. They can only get paid once. If there are excesses that are legal, then I agree that it is an entirely separate matter as to whom that money should go, but to foreclose on a homeowner such as my family, where the creditor has been entirely or mostly paid is absurd. DON’T YOU AGREE? WHY WONT YOU HELP? WE WANT OUR JUNKY OLD HOME< THAT WE HAVE WORKED SO HARD FOR and NO ONE CARES! WE WILL PAY IF IT IS OF LEGAL DEBT AND TRUTH! WHY WONT YOU OR ANYONE help us? I am sorry we don’t have thousands of dollars at our disposal to feed into a legal system that wont care cause if they do and we even slightly win then a domino effect will happen and more people like us will wake up and pay attention. Well again whomever cares enough to actually READ this, WE WILL NOT GIVE UP! In numerous cases many courts have recited such facts as that the loan was sold to “currently unknown entity or entities.” This implicitly raises the question of whether the loan was in fact actually sold more than once, and if so, to whom, for how much, and raises the issues of whom Plaintiff was to direct their payments and whether the actual creditor was receiving the money that Plaintiffs paid. Yet still no one pays attention enough to care to look INTO facts such as these, only that the pro per plaintiffs have less money than the table of lawyers across from them and eventually they will give up, even if they rather fight they will eventually have no other choice, as in our case.
Here is the letter we sent them and they still continued and our courts looked the other way, Please feel free to look up our case in Maricopa County Superior Court, if you really care……..heck just Google my name and you'll see it all in color!
IT IS HEREBY DEMANDED THAT YOU IMMEDIATELY VOID THE TRUSTEE’S DEED UPON SALE, CEASE AND DESIST ALL TRUSTEE’S SALE ACTIVITIES AND WITHIN TWENTY DAYS, RELEASE OR CORRECT ALL FALSE DOCUMENTS YOU HAVE RECORDED OR CAUSED TO BE RECORDED IN CONNECTION WITH THE BELOW REFERENCED PROPERTY.
HOMEOWNER NAME: Scott L. Misenhelter, A Married Man, As His Sole And Separate Property
PROPERTY ADDRESS: 234 E Heather Av, Gilbert, AZ 85234-4520
COUNTY NAME: Maricopa, Arizona
TRUSTEE’S SALE NUMBER: 1291293-14
NOTICE OF TRUSTEE’S SALE:
DATE RECORDED: 2010-07-22
RECORDING NUMBER: 20100624591
Attention Foreclosure Department:
CAL-WESTERN RECONVEYANCE CORPORATION
525 EAST MAIN STREET
P.O. BOX 22004
EL CAJON CA 92022-9004
1 (800) 546-1531
I do not expressly or impliedly waive or voluntarily abandon, throw away, renounce, repudiate, or surrender any claim, privilege, right, or the opportunity to take advantage of any and all defects, irregularities, or wrongs against me or my estate, whether conferred by law or by contract.
You are hereby noticed that you have participated in a process that is statutorily and contractually out of compliance and VOID!
IT IS HEREBY DEMANDED THAT YOU CEASE AND DESIST and CANCEL the above referenced sale as noticed by the Notice of Trustee’s Sale which you have recorded or caused to have recorded in the above referenced County of Arizona.
I hereby put the alleged Trustee and Beneficiary on notice that I DEMAND, within fifteen days after the Trustee's Sale, a full disclosure and accounting of the derivation and application of proceeds associated with the Trustee's Sale under A.R.S. § 33-811 and A.R.S. § 33-812, et al.
There are numerous violations of the Deed of Trust that you purport to be proceeding through as well as provisions of Arizona Statutory requirements relating to the exercise of the “power of sale.” You have not met the presumptions of A.R.S. § 33-811 (B) and (C) of contractual and statutory compliance. Violations include noticing, recording, mailing, publishing and posting of notice of sale and the conduct of the sale as more fully described below. Since you proceeded with the Trustee’s Sale your actions are considered an attempt to unlawfully convert title of real property though the filing of forged and/or groundless documents in a public office. If you proceed with the Trustee’s Sale your actions will be considered an attempt to unlawfully convert title of real property though the filing of forged and/or groundless documents in a public office.
The Arizona Supreme Court has ruled that foreclosing parties must strictly comply with the statutory scheme of requirements applicable to the notice and conduct of a non-judicial Trustee’s Sale. Further the court has ruled that any Trustee’s Sale which is held without complying with such statutory requirements is VOID. The court has also ruled that a party availing himself of the contractual provisions providing for a sale and forfeiture must comply strictly with all the requirements of the contract. You have not met the obligations of such compliance as further set-forth below.
Below are the items of non-compliance with the Arizona Trustee’s Sale process found thus far.
According to the Arizona Supreme Court if you wish to avail yourself of a contractual provision providing for forfeiture you are required to comply strictly with all of the requirements of the contract as indicated in the below cited rulings.
1. The Deed of Trust, Section 22, for the referenced property states, “Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument.” The Lender, Universal Savings Bank, F.A., has never provided such a notice to the Borrower as is required by this contractual provision.
2. Further, the Deed of Trust, Section 22, paragraph 1, subsection (c) for the trust property states the Lender is required to invoke the power of sale on “a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured.” No party has provided a breach notice allowing the contractually required 30 day cure period prior to invoking a power of sale or other remedies permitted by Applicable Law. Therefore, this foundational basis upon which a power of sale may be exercised has not been met and any action by you to initiate a Notice of Trustee’s Sale is void.
3. The Deed of Trust, Section 22 states that the Trustee, "shall sell the Property at public auction to the highest bidder for cash at the time and place designated in the notice of sale." The Notice of Trustee's Sale expressly states, "the Beneficiary to the extent of his credit bid,." It will be a violation of my contractual protections if a Trustee's Sale were to be held and the trust property were conveyed by any mechanism to a party that allegedly purchased the trust property through the exercising of a "credit bid." The Deed of Trust does not offer to any party the option to tender a "credit bid" at a Trustee's Sale. If the trust property were to be conveyed by the acceptance of a "credit bid" such sale would be null and void and a violation of applicable statutes and the Deed of Trust.
4. The Deed of Trust, Section 24 for the referenced property states “Lender may, … appoint a successor trustee to any Trustee appointed hereunder.” You are in violation of the contractual provisions as the Lender, Universal Savings Bank, F.A., who is named in the Deed of Trust has never made an appointment of a “successor trustee” to the party so designated in the Notice of Trustee’s Sale. Therefore, the Notice of Trustee’s Sale is void as the cited Trustee has no authority to exercise a “power of sale” against the property.
5. The Deed of Trust, Section 15 states you must meet notice requirements which are “also required under Applicable Law.” There are additional requirements under Applicable Law in Arizona. A.R.S. § 33-807.01 requires that you attempt to contact me with a 30 day written notice “to explore options to avoid foreclosure” prior to the recordation of a Notice of Trustee’s Sale. No such Written Notice has been delivered to me in the required time period.
According to the Arizona Supreme Court you are required to strictly comply with all statutory notice requirements for Trustee’s Sales as indicated in the statutes and cited rulings below.
Statutory Civil Violations
6. A.R.S. § 33-420 (A), states, “A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.” You have caused such documents to be recorded in the county recorder’s office. Per document, you are liable for a minimum sum of five thousand dollars and you may be liable for treble damages as my home has gone to trustee’s sale based upon forged or groundless recorded documents which may contain material misstatements, false claims or are otherwise invalid.
7. A.R.S. § 33-420 (C), states “A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages, whichever is greater, and reasonable attorney fees and costs as provided in this section, if he willfully refuses to release or correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder of the real property.” Again, you are named in such documents and have the opportunity to take corrective actions. If you take no such action within the twenty days from this notice, you will be liable to me “for the sum of not less than one thousand dollars, or for treble actual damages, which ever is greater…”
Deed of Trust Statutory Violations
8. A.R.S. § 14-10804 expresses the duties and powers of a trustee and further elaborates the trustee shall provide "prudent administration" of the trust. Stewart Title & Trust Of Phoenix, Inc. has completely abandoned their fiduciary duties by NOT exercising reasonable care, skill and caution in administering the trust as a prudent person would.
MERS (Mortgage Electronic Registration Systems, Inc.) is designated as the “Beneficiary” in the Deed of Trust. For MERS to be a “Beneficiary” is a statutory impossibility. MERS states on its own homepage, http://www.MERSinc.org, “MERS is an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked.” MERS is strictly a process with a database; it cannot meet the statutory definition (A.R.S. § 33-801) of a “Beneficiary.” A process is merely a methodology and a database is a compilation of information and it cannot be a “Beneficiary” as it cannot receive payments nor can it ever hold title to an instrument pertaining to real property or the real property itself. The process elaborating how “mortgage ownership and servicing rights are originated, sold and tracked” does not create statutory status as a Beneficiary. The Beneficiary cited in the Notice of Trustee’s Sale never received an authorization from an original Beneficiary as there never was a statutorily compliant Beneficiary in the Deed of Trust. Since there was never a Beneficiary established in the Deed of Trust, the Deed of Trust is void and of no force and effect. Therefore, the Beneficiary indicated on the Notice of Trustee's Sale has no authorization to initiate a “power of sale” against the property.
In the event the Trust or, or someone on behalf of the Trustor, were to satisfy all obligations the Deed of Trust seeks to secure; MERS would be unable to offer the satisfaction of obligation which is required under A.R.S. § 47-3602. This is further indication that MERS is indeed NOT the Beneficiary of anything and has no authority to act in that capacity.
Since MERS cannot meet the contractual or statutory threshold of a Beneficiary, the Deed of Trust also fails as there can be no trust without a valid Beneficiary.
12. Revised Statutes §33-804(F), which states: “Resignation by a trustee is made by recordation of a notice of resignation in the office of the county recorder of each county in which the trust property or some part of the trust property is situated at the time of the resignation. Written notice shall be given through registered or certified mail, with postage prepaid, to the trustor and the beneficiary.” No such Resignation has ever been recorded in the applicable county recorder’s office. Therefore, the current trustee is still the original trustee as designated in the Deed of Trust. Since the original trustee, Stewart Title & Trust Of Phoenix, Inc., is still the trustee of record and has never exercised the power of sale as provided for in the Deed of Trust the Notice of Trustee’s Sale is void and of no force and effect.
Corporation Assignments of Deed of Trust Violations
Corporation Assignment of Deed of Trust Recorded Instrument # 20110649462
A.R.S. § 33-818 states that an “assignment of a beneficial interest under a trust deed… if acknowledged… shall from the time of being recorded … impart notice of the content.” Additionally, A.R.S. § 33-412 (A) states, “All bargains, sales and other conveyances whatever of …, and deeds of trust and mortgages of whatever kind, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, unless they are acknowledged and recorded in the office of the county recorder as required by law.” You are in violation of the statutory notice requirements for Trustee’s Sales as, prior to the recording of the Notice of Trustee’s Sale, there was never made a recorded and acknowledged assignment of beneficial interest by an authentic and authorized party to AURORA LOAN SERVICES, LLC who is designated as the beneficiary in the recorded Notice of Trustee’s Sale. A.R.S. § 33-420 (C), states, “A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.” There is no valid document recorded in this County prior to the filing of a Notice of Trustee’s Sale which conveys beneficial interest to AURORA LOAN SERVICES, LLC. Therefore, the Notice of Trustee’s Sale is void as the cited Beneficiary has no authorization to exercise a “power of sale” against the property.
For the foregoing reasons, the Notice of Trustee’s Sale is void and of no force and effect as the cited Beneficiary has no authorization to exercise a “power of sale” against the property.
Corporation Assignment of Deed of Trust Recorded Instrument # 20110649984
A.R.S. § 33-818 states that an “assignment of a beneficial interest under a trust deed… if acknowledged… shall from the time of being recorded … impart notice of the content.” Additionally, A.R.S. § 33-412 (A) states, “All bargains, sales and other conveyances whatever of …, and deeds of trust and mortgages of whatever kind, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, unless they are acknowledged and recorded in the office of the county recorder as required by law.” You are in violation of the statutory notice requirements for Trustee’s Sales as, prior to the recording of the Notice of Trustee’s Sale, there was never made a recorded and acknowledged assignment of beneficial interest by an authentic and authorized party to Fannie Mae who is designated as the beneficiary in the recorded Notice of Trustee’s Sale nor was there ever made a recorded and acknowledged assignment of beneficial interest by an authentic and authorized party to Federal National Mortgage Association. A.R.S. § 33-420 (C), states, “A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.” There is no valid document recorded in this County prior to the filing of a Notice of Trustee’s Sale which conveys beneficial interest to Federal National Mortgage Association. Therefore, the Notice of Trustee’s Sale is void as the cited Beneficiary has no authorization to exercise a “power of sale” against the property.
Further challenge to Fannie Mae being recognized as a beneficiary is the fact that there is no entity named "Fannie Mae" lawfully doing business in any jurisdiction within the United States. Therefore, any assignment of beneficial interest to Fannie Mae is of no legal force or effect as Fannie Mae does not exist and has no capacity to exercise a power of sale against me.
For the foregoing reasons, the Notice of Trustee’s Sale is void and of no force and effect as the cited Beneficiary has no authorization to exercise a “power of sale” against the property.
Substitution of Trustee Violations
18. A valid Substitution of Trustee has never been made by a beneficiary with authority to appoint a successor trustee pursuant to A.R.S. § 33-804 (B) which states, “The beneficiary may at any time remove a trustee for any reason or cause and appoint a successor trustee, and such appointment shall constitute a substitution of trustee.” The phrase ‘for cause’ must mean some cause affecting or concerning the ability or fitness of the trustee to perform the duty imposed upon him. It does not mean an arbitrary will of the appointing power, for that might be the outgrowth of mere whim, caprice, prejudice, or passion, which would, in reality, be no cause at all. The recorded Substitution of Trustee also fails to meet the requirements of A.R.S. § 33-804 (D) in that no document has ever been acknowledged that substitutes or appoints a trustee by an authorized Beneficiary or its agent. A.R.S. § 33-420 (C), states, “A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.” A valid Substitution of Trustee to Cal-Western Reconveyance Corporation has never been made in accord with any contractual provision, Arizona statute or court action. Therefore, the Notice of Trustee’s Sale is void as the cited Trustee has never been authorized to exercise a “power of sale” against the property.
Notice of Trustee’s Sale Violations
19. The Deed of Trust in the section titled "TRANSFER OF RIGHTS IN THE PROPERTY" states, "Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, …" while the Notice of Trustee's Sale states, "The Subject Real Property will be sold pursuant to the power of sale under the above described Deed of Trust." The trustee, Stewart Title & Trust Of Phoenix, Inc., has never initiated a "power of sale" under authority conferred on them by the applicable Deed of Trust. Therefore, any subsequent document purporting to claim a "power of sale," including the Notice of Trustee's Sale, under the applicable Deed of Trust is null and void and of no legal force or effect.
20. The Trustor named in the Notice of Trustee’s Sale is not the same as the original Trustors named in the Deed of Trust. If you were to exercise a power of sale for this property, you would be forever causing a defect in the chain of title to the real property.
21. Since the recorded documents, the Deed of Trust, Corporation Assignments of Deed of Trust, Substitution of Trustee and the Notice of Trustee’s Sale itself upon which the trustee’s sale process is based are groundless and invalid pursuant to A.R.S. § 33-420; the entire Trustee’s Sale process is groundless, void and of no force and effect.
Procedural Notice Violations
22. A.R.S. § 33-809 (C), states “The trustee, within five business days after the recordation of a notice of sale, shall mail by certified or registered mail, with postage prepaid, a copy of the valid Notice of Trustee’s Sale.” I was not mailed such a copy within the required five business days after the recording of the Notice of Trustee’s Sale.
23. A.R.S. § 33-809 (C), states that the parties to the trust deed shall be mailed “a statement that a breach or nonperformance of the trust deed or the contract or contracts secured by the trust deed, or both, has occurred.” I was not mailed such a statement within the required five business days after the recording of the Notice of Trustee’s Sale nor was one mailed with any required mailing of a copy of the recorded Notice of Trustee’s Sale.
24. A.R.S. § 33-808 (A) (3), states that the property shall be posted with a copy of the Notice of Trustee’s Sale. No proof exists that the property has ever been posted with such a copy of the Notice of Trustee’s Sale.
25. A.R.S. § 33-808 (A) (4), states that there shall be published a written notice of the Notice of Trustee’s Sale. No proof exists that such publishing took place in a “Newspaper of General Circulation” as required.
26. A.R.S. § 33-808 (A) (3), states that there shall be posted a written notice of the Notice of Trustee’s Sale in a “Public place at the Superior Court in the County.” No proof exists that such posting ever took place in this county’s Superior Court as required.
Trustee’s Deed Upon Sale Violations
27. The Trustee’s Deed Upon Sale does not contain the proper tax parcel number as is required by Arizona statute and a valid real property conveyance instrument. This oversight renders the Trustee’s Deed Upon Sale void and of no effect and force.
28. A.R.S. § 33-401 (B) states, "Every deed or conveyance of real property must be signed by the grantor…" The Trustee's Deed Upon Sale is not signed by a lawful grantor. Cal-Western Reconveyance Corporation was never appointed or substituted into the chain of title in any lawful manner that gave them the authority to sign the Trustee's Deed Upon Sale as a grantor. The entity that attempted to substitute Cal-Western Reconveyance Corporation as the Trustee was Mortgage Electronic Registration Systems, Inc. which was never an entity authorized to make a lawful substitution.
29. A.R.S. § 33-401 (B) states “In every deed or conveyance of real property in which the grantee is subject to regulation…, the grantee's name and address… shall be set forth fully” The Trustee’s Deed Upon Sale sets forth FEDERAL NATIONAL MORTGAGE ASSOCIATION as the Grantee. As FEDERAL NATIONAL MORTGAGE ASSOCIATION was not a Bona Fide Purchaser at the Trustee's Sale for it to claim status as the Grantee is impossible as this entity has never been otherwise lawfully assigned or substituted in to the chain of title for the Trust Property. Therefore, the Trustee's Deed Upon Sale does not set forth the name of the Grantee and this voids the recorded Trustee's Deed Upon Sale.
Statutory Criminal Violations
30. A.R.S. § 39-161, states, “A person who acknowledges, certifies, notarizes, procures or offers to be filed, registered or recorded in a public office in this state an instrument he knows to be false or forged, which, if genuine, could be filed, registered or recorded under any law of this state or the United States, or in compliance with established procedure is guilty of a class 6 felony.” You are fully aware and herein redundantly noticed that the documents you have recorded or caused to have recorded with this county’s recorder’s office are false or forged. Your past and continued efforts to knowingly record false or forged documents are deemed by statute to be criminal in nature and subject to damages and other remedies as may be deemed appropriate by a court of law.
31. As demonstrated above, known criminal activity has taken place by you in proffering instruments for recordation in public offices within the state of Arizona. Your documents are false and forged and therefore any Notice of Trustee’s Sale which is predicated on those documents is void and of no force and effect.
Supporting Arizona Supreme Court Cases
Patton v. First Federal Savings And Loan Association of Phoenix, 118 Ariz. 473, 578 P.2d 152, 153 (1978) (holding, “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.”)
Schaeffer v. Chapman, 176 Ariz. 326, 861 P.2d 611 (1993) (holding, “We repeatedly have held that contracts will be strictly construed to avoid forfeitures” and “30-day notice period in deed of trust was separate from 90-day period set forth by statute and lenders' failure to give total of 120-day notice prior to sale was breach of deed of trust.”)
Glad Tidings Church of America v. Hinkley, 71 Ariz. 306, 226 P.2d 1016 (holding, “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.”)
You are additionally noticed that there are violations of Federal Statutes including but not limited to the following.
32. According to the United States Postal Inspection Service Mail Fraud includes any scheme that attempts to unlawfully obtain money or valuables in which the postal system is used at any point in the commission of a criminal offense. There are two elements to mail fraud: (1) a scheme or artifice to defraud; and (2) a mailing to carry out the scheme. Pursuant to U.S.C.A 18 § 1341 you are participating in a scheme or artifice to defraud me of – title and possession of my real property. You have used the United States Postal Service in an attempt to unlawfully obtain money or valuables from me. You are attempting to divest me of my property. For the reasons cited above, the false documents you have devised and mailed in an intentional scheme to obtain property from me subject you to 18 U.S.C.A § 1341 which states as follows:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.
33. Wire fraud, in the United States Code, is any criminally fraudulent activity that has been determined to have involved electronic communications of any kind, at any phase of the event. To commit wire fraud, one must (1) devise, or intend to devise, a scheme or artifice to defraud another person on the basis of a material representation, and (2) do it with the intent to defraud, and (3) do it through the use of interstate wire facilities (i.e. telecommunications of any kind). Pursuant to U.S.C.A 18 § 1343 you are participating in a scheme or artifice to defraud me of – title and possession of my real property. You have used transmitted or caused to be transmitted material in an attempt to unlawfully obtain money or valuables from me. You are attempting to divest me of my property. For the reasons cited above, the false documents you have devised and wired in an intentional scheme to obtain property from me subject you to 18 U.S.C.A § 1343 which states as follows:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
34. Pursuant to the Fair Debt Collections Practices Act 15 U.S.C.A. § 1692 et. seq., you are making “false, deceptive and misleading representations” in the collection of the alleged debt as there is not named in the recorded Notice of Trustee’s Sale a valid Beneficiary or Trustee. You are not “vouched” as a Debt Collector entitled to pursue the collection of the alleged debt. You are threatening to “take an action that you cannot legally take.” You are also representing that your insufficient documents are “legal process.” You are using a “business or company name other than the true name of the debt collector’s business or company.”
35. Since you are communicating personal credit information you know to be false you are further in violation of the Fair Credit Reporting Act pursuant to 15 U.S.C.A § 1681 et. seq. Therefore, it is further demanded that you cease your erroneous reporting and expunge from my Credit Report any derogatory information you may have communicated to any and all Credit Reporting Agencies.
IT IS HEREBY DEMANDED THAT YOU IMMEDIATELY VOID THE TRUSTEE’S DEED UPON SALE, CEASE AND DESIST ALL TRUSTEE’S SALE ACTIVITIES AND WITHIN TWENTY DAYS, RELEASE OR CORRECT ALL FALSE DOCUMENTS YOU HAVE RECORDED OR CAUSED TO BE RECORDED IN CONNECTION WITH THE ABOVE REFERENCED PROPERTY.
A.R.S. § 808 (F), states, “The notice of trustee sale may not be rerecorded for any reason.” Therefore, you are hereby demanded to file with this county’s Recorder’s Office a CANCELLATION OF NOTICE OF TRUSTEE’S SALE on the referenced Notice of Trustee’s Sale immediately. You are also demanded to deliver to me a fully executed copy of the same document to me at the referenced property address.
Scott and Rebecca Misenhelter …………………………………………….
Then they backdoored us and filed a forcible detainer to get us out the easy way, we didn’t get in over our heads with money, we fell pray to the economy and we want our home, I am dying inside, I am devastated and I am begging you to do something to help those like me especially in non judicial states that don’t care, PLEASE…Maybe its YOU the one reading this novel is the ONE person willing to help? Maybe not, but I will keep trying!
Regardless, Thank you for taking your time to read the enclosed letter and I look forward to your reply regardless if you can help!
Rebecca and Scott Misenhelter
Thank you for reading and caring if in fact you do,
Rebecca Misenhelter and family Gilbert AZ