Consumer complaint received 2017-12-07
Company: FIRST AMERICAN FINANCIAL CORPORATION
State: CA
Product: Debt collection
Sub-product: Mortgage debt
Issue: Took or threatened to take negative or legal action
Sub-issue: Seized or attempted to seize your property

Complaint:
The disclosure that XXXX XXXX XXXX XXXX XXXX XXXX may be acting as a debt collector attempting to collect a debt, is apparently in reference to the fact that the courts are divided on the issue of whether or not foreclosure is debt collection. ( See attached file : Notice of Default ). Therefore until this issue is resolved by the United States Supreme Court, the creditor, servicer, and trustee are all prohibited from foreclosing on the subject property as this could be a violation of federal and state debt collection laws. As such as Notice to Cease and Desist was sent certified mail to XXXX XXXX XXXX XXXX XXXX XXXX. The notice also states I dispute the debt. ( See attached file : Notice to Cease and Desist ). It is not possible to verify the debt until the issue of whether foreclosure is debt collection is resolved. Therefore the trustee is prohibited from foreclosing on my home until the US Supreme Court rules on this issue. Even still it is illegal to use mortgage assistance as a method of debt collection. 

In addition attached are pages taken from a class action law suit against XXXX XXXX XXXX , XXXX which ended in a settlement. Although the circumstances are not identical, the court denied the motion to dismiss and concluded " The court is troubled by the prospect that this case may involve a third-party debt buyer attempting to collect money from a consumer on a debt she does not owe. '' The court also cited : A debt buyer purchases consumer debts that have been written off by the original creditor, generally acquiring the debts for a fraction of the balance, and then attempting to collect the entire debt. XXXX v. XXXX XXXX. XXXX, XXXX , XXXX XXXX XXXX, XXXX ( XXXX XXXX  XX/XX/XXXX ). ( See attached file : XXXX Class Action FDCPA ). 

I refinanced my mortgage with XXXX XXXX in XX/XX/XXXX, went into default in XX/XX/XXXX,  entered into a Trial Plan Agreement, made the three trial payments, did not receive the HAMP modification, have not made a payment since, and have been placed into foreclosure 6 times with three different trustees. XXXX ( XXXX ) /XXXX XXXX violated CA civil Code 2924f/g and committed fraud to cover it up. Then the XXXX  XXXX XXXX committed fraud to cover up for XXXX. I filed a complaint with the California Attorney General against the XXXX XXXXXXXX XXXX and after another foreclosure sale was scheduled for my home I filed a complaint with the California Attorney General against XXXX. The California Monitor intervened because XXXX was in violation of the National Mortgage Settlement Consent Order and depriving me of my California Homeowner Bill of Rights. XXXX ( XXXX ) XXXX XXXX then committed fraud to cover this up. In a letter dated XXXX XXXX XXXX I  disputed the transfer of servicing/sale of debt to XXXX effective XXXX XXXX XXXX,  informed XXXX I was delinquent for 5 years, and informed XXXX to cease and desist. 

Due to the complaints I filed with the California Attorney General, The XXXX  XXXX XXXX would not conduct a trustee sale so XXXX substituted XXXX  who subsequently schedule a trustee sale shortly afterward for XX/XX/XXXX. In XX/XX/XXXX,  I sued both XXXX and XXXX in Superior Court ( case # XXXX ) for among other things, fraud, oppression, malice and proved this to the letter for the law. After I filed my complaint, the judge denied my request for injunctive relief so I submitted an application with XXXX for the first time to request mortgage assistance. XXXX then did the same exact thing XXXX had done a year earlier ; deprived me of my California Homeowner Bill of  Rights while foreclosing on my home. XXXX responded by communicating with me in the capacity of a debt collector in violation of my notice to cease and desist. After I managed to get my application into underwriting, XXXX instructed XXXX to proceed with the foreclosure sale anyway and XXXX did so in violation of my California Homeowner Bill of Rights. So I filed a new complaint against XXXX with the California Attorney General for violating my California Homeowner Bill of Rights. XXXX then cancelled the sale, closed its west coast offices, and informed me the records were lost. XXXX then withdrew my application from underwriting and committed fraud in response to my Qualified Written Request to cover it up. In this letter XXXX states at the top of page two that XXXX XXXX is the  note holder. ( See attached file : XXXX XXXX Note Holder ). 

Furthermore XXXX XXXX XXXX XXXX XXXX XXXX was sued in the Court of Appeal in the State of California XXXX XXXX XXXX. The court explained how it had ruled it was hearsay that the predecessor bank was successor to the original beneficiary, so the overall truthfulness of the assignment of the deed of trust remained subject to dispute as well. This is supported by testimony that there are no assignments of mortgages or anything transferring ownership from XXXX to XXXX. ( See attached file : CA XXXX XXXX Court of Appeal ).

XXXX XXXX XXXX sent me a letter dated XX/XX/XXXX in which it states : The current creditor to whom the debt is owed is XXXX XXXX XXXXon behalf of the holders of the XXXX Pass-Through Mortgage Certificates, Series XX/XX/XXXX-XXXX. ( See attached file : Current Creditor XXXX XXXX ). Notice it says on behalf of the holders of the XXXXCertificates. This is due to the fact that XXXX XXXX only did the underwriting. The money to fund the loans came from investors who were issued certificates of ownership in the trust that owned my mortgage and note. 

XXXX XXXX admits it is merely the trustee for the trust that owns the mortgage and note. ( See attached file : XXXX XXXX-XXXX XXXX XXXX XXXX XXXX ). That is because the holders of the certificates are the actual owners of the mortgage and note and not XXXX XXXX. The certificate holders sued XXXX XXXX and XXXX XXXXXXXX XXXX in a class action law suit over these mortgages and received a settlement. ( See attached file : Certificate Holders Class Action ). As a result these debts are satisfied. The mortgages should be canceled and the liens should be removed from the property. 

XXXX XXXX states it has no authority or responsibility to review and or approve or disapprove of these decisions and actions and that the servicer is the party to the Trust that has the authority and responsibility to make decisions and take action regarding individual mortgage loans in the trust. ( See attached file : XXXX XXXX-XXXX XXXX XXXX XXXX XXXX ). However the servicer is a licensed debt collection agency in disguise which uses mortgage assistance as an illegal method of debt collection to foreclose on homes. ( See attached file : Agent Beneficiary Perjury ). 

All letters relating to mortgage assistance have the disclaimer at the bottom that it is communication from a debt collector attempting to collect a debt and any information obtained will be used for that purpose. This is a direct violation of the Dodd-Frank Wall Street Reform Consumer Protection Act the Fair Debt Collection Practices Act, and various Consumer Rights Laws and the CFPB has taken action against XXXX, XXXX XXXX, and XXXX over this very problem. Furthermore XXXX has shared my personal information with third parties without providing the form to restrict/limit this and continues to share my personal information after I restricted/limited this. This is precisely why in over three years I have been unable to get XXXX to underwrite my application for mortgage assistance and it is painfully obvious the very person responsible for my loan at XXXX is still in control at XXXX. As a result the Control Officer, XXXX XXXX, committed perjury in her California Declaration of Compliance which states : On XX/XX/XXXX contact was made with the borrower to assess the borrowers financial situation and explore options for the borrower to avoid foreclosure ( See attached file : Agent Beneficiary Perjury ). XXXX is a licensed debt collection agency. There is no way any reasonable person would believe options were ever legitimately explored to avoid foreclosure. Therefore XXXX XXXX clearly committed perjury. 

Furthermore the California Declaration of Compliance states at the top that the Beneficiary is XXXX XXXX on behalf of the holders of the XXXX Pass-Through Certificates, Series XX/XX/XXXX-XXXX. Then at the bottom it states XXXX XXXX XXXX , XXXX is the authorized agent of Beneficiary. This would mean that a licensed debt collection agency disguised as a mortgage loan servicer that uses mortgage assistance as an illegal method of debt collection to foreclose on my home, is the authorized agent for the certificate holders who are the actual owners of my mortgage and note. 

However the law states : The trustee holds a power of sale. If the debtor defaults on the loan, the beneficiary may demand that the trustee conduct a nonjudicial foreclosure sale. ( XXXX, XXXX, XXXX XXXX at p. 926. ) Thus, while a trustee initiates the nonjudicial foreclosure sale, it may do so only at the direction of the person or entity that currently holds the note and the beneficial interest under the deed of trustthe original beneficiary or its assigneeor that entitys agent. ( Id. At p. 927 ; Civil Code, 2924, subd. ( a ) ( 1 ) [  notice of default may be filed for record only by [ t ] he trustee, mortgagee, or beneficiary, or any of their authorized agents ] ; unless otherwise set forth, statutory section references that follow are to the Civil Code. ) However XXXX XXXX is not the original beneficiary or its assignee. That is likely why XXXX XXXX contends it is merely the trustee for the trust that owns my mortgage and note and that the certificate holders are the owners of the trust. The deed of trust names XXXX XXXX as the original beneficiary and not the certificate holders. As the XXXX XXXX Court of Appeal ruled it was hearsay that the predecessor bank was successor to the original beneficiary, so the overall truthfulness of the assignment of the deed of trust remained subject to dispute as well. This is supported by testimony that there are no assignments of mortgages or anything transferring ownership from XXXX to XXXX. ( See attached file : CA XXXX XXXX Court of Appeal ). 

Furthermore XXXX sued the FDIC over the acquisition of XXXX and received a settlement. XXXX XXXX XXXX XXXX and XXXX XXXX contend that XXXX is the agent of the Beneficiary which is XXXX XXXX on behalf of the holders of the XXXX Mortgage Pass-Through Certificates. In addition, as explained above, the certificate holders sued XXXX XXXX and received a settlement. So it is disingenuous to claim XXXX is the agent for the certificate holders. If XXXX XXXX is merely the trustee for the certificate holders and XXXX is the agent for XXXX XXXX then XXXX would be acting on behalf of the certificate holders who received a settlement from XXXX XXXX and XXXX would be acting on behalf of the certificate holders after XXXX received a settlement from the FDIC. No reasonable person would believe this and I dispute it. This is likely why XXXX has declined my Qualified Written Request to provide the agreements that would allow this and cites they are privileged or proprietary, overly broad, unduly burdensome, and XXXX is not required to respond. 

XXXX is acting as XXXX XXXX agent who according to XXXX XXXX has the authority and responsibility to make decisions and take action regarding individual mortgage loans in the trust. So although XXXX XXXX states it is the trustee for the trust that owns my mortgage and note, XXXX XXXX has no authority or responsibility to review and or approve or disapprove of these decisions and actions. Furthermore the letter from XXXX XXXX XXXX dated XX/XX/XXXX states : XXXX XXXX XXXX XXXX XXXX has been authorized by the servicer/creditor to initiate foreclosure proceedings ( See attached file : Current Creditor ). This implies that XXXX XXXX approves of this decision for XXXX XXXX XXXX XXXX XXXX to initiate foreclosure proceedings. However as XXXX XXXX states : XXXX XXXX has no authority or responsibility to review and or approve or disapprove of these decisions and actions and that the trust is the owner of the mortgage and note, not the trustee.the servicer has taken all action regarding your property. ( See attached file : XXXX XXXX XXXX XXXX XXXX XXXX ). 

Also the letter from XXXX XXXX XXXX states the full amount owed is {>= $1,000,000}. As in the class action suit against XXXX, the court explains how A debt buyer purchases consumer debts that have been written off by the original creditor, generally acquiring the debts for a fraction of the balance, and then attempting to collect the entire debt. XXXX v. XXXX XXXX. XXXX, XXXX , XXXX XXXX XXXX, XXXX ( XXXX XXXX XX/XX/XXXX ). The court also stated " The court is troubled by the prospect that this case may involve a third-party debt buyer attempting to collect money from a consumer on a debt she does not owe. ( See attached file : XXXX Class Action FDCPA ). This is further supported by the monthly mortgage statements that show a balance and disclaimer it is an attempt to collect a debt. ( See attached file : Mortgage Statement ) and page XXXX of the attached file Payoff Statement. 

According to XXXX XXXX, XXXX would be acting on its own to instruct XXXX XXXX XXXX XXXX to initiate non-judicial foreclosure proceedings. This would not be in accordance with the law. Therefore I sent a certified letter to XXXX XXXX XXXX XXXX XXXX XXXX informing them of this problem. ( See attached file : XXXX XXXX-Certified Letter ). Although the agent for the Beneficiary may demand the trustee conduct a non-judicial foreclosure sale, it would do so on behalf of the original beneficiary or its assignee. That is likely why XXXX contends at the top of page two of the letter dated XX/XX/XXXX that XXXX XXXX is the Note Holder. ( See attached file : XXXX XXXX Note Holder ). 

XXXX XXXX only did the underwriting. The actual money to fund my loan came from investors. However XXXX XXXX converted my mortgage and note to a security and since a security can never be converted back into a note, it would be securities fraud for the note and security to both exist. As a result the security was placed in a trust and the investors were issued certificates of ownership in the trust that owns my mortgage and note. In doing so the note does not actually exist in the physical sense as the trust is considered an entity. Thus the notes were replaced with certificates of ownership in the trust. In order to foreclose on a property in California and most states, the original note is required to show ownership of the mortgage. This is obviously not possible without committing fraud and is a very well documented crime. 

In states with judicial foreclosures, XXXX XXXX forecloses on homes as the trustee on behalf of the certificate holders as in the case of XXXX XXXX XXXX, Plaintiff, -vs- XXXX XXXX , et al., Defendant. ( See attached file : XXXX XXXX -VS- XXXX XXXX ). The real player was XXXX who then slipped in XXXX as a Successor to the Servicing of the loan in which there were no servicing duties. At trial they tried coming up with new fabricated documents but the Judge refused to admit them into evidence. Not only were the documents fabricated, the business records were a mixed bag of tricks with reversals of payments received and money going in and out of escrow that clearly could not be reconciled. The robo-witness could not come up with a default date nor could he reconcile the amount demanded for reinstatement with any terms of the loan. Had this property been in a non-judicial foreclosure state, the property would have been illegally foreclosed upon. 

This is the problem in a non-judicial foreclosure state ; the trustee is not independent as the California State Supreme Court ruled trustees are supposed to be independent and arms length in a Deed of Trust contract. This ruling from the CA Supreme Court was filed in XX/XX/XXXX from the XXXX v Superior Court of XXXX XXXX XXXX case. 

However, in XX/XX/XXXX the CA legislature created SB 1638 which redefined how a substitution of trustee is able to take place. This bill became enacted law in XX/XX/XXXX, therein making EVERY deed of trust agreement issued by a financial institution since that date fraudulent on its face and therefore VOID. 

The bank substituted a Trustee without my permission, acceptance or knowledge and XXXX XXXX XXXX XXXX XXXX XXXX acknowledges it may be acting as a debt collector attempting to collect a debt. Thus the trustee is clearly not independent and since it is evidently unsure if foreclosure is debt collection, it can not ignore the fact that I dispute the debt and that it can not verify the debt. Given the history of the mortgage, the two years of unsuccessful foreclose action and all the facts, the only option is to immediately inform me the foreclosure is cancelled. 

Every change in a real estate contract must be agreed to and signed by all parties involved in the agreement throughout the life of the agreement or it is against the Statue of Frauds ( 1677 ). This is BASIC real estate contract law. The other problem with the substituted change is that the bank did this without my knowledge or consent. According to SB1638 ( XX/XX/XXXX ) the bank is allowed to change the trustee at their discretion. 

This means that the acting trustee is not allowed to NOT be substituted if they deem so otherwise. As a result the trustee is NOT independent, as it was ruled by the CA Supreme Court in XX/XX/XXXX in XXXX v Superior Court of XXXX XXXX XXXX [ XXXX XXXX XXXX }. 

The independence of the Trustee is deemed imperative to the non-judicial foreclosure process because the courts have given the trustee the presumption of correctness. This means that it is the intention of the non-judicial process that the trustee act as the court and therein what the trustee states as true and correct is deemed true and correct. This is due to the fact that the trustee is to be independent as based on the Supreme Courts ruling in XX/XX/XXXX. However, in XX/XX/XXXX, the Senate Bill 1638 became enacted law in XX/XX/XXXX. 

This Bill allowed the banks to substitute the trustee at the will of the bank. Consequently the trustee is controlled by the financial institution. Therefore there is no independence of a trustee at the inception of the Deed of Trust agreement. Thus if the bank does not inform the borrower of this fact at the inception of the contract agreement then they have deceived the borrower into using a Deed of Trust agreement. Through this misrepresentation by the banks of the material fact that the trustee is not independent, the Deed of Trust agreement is in fact fraudulent on its face and therefore VOID because there was never a legal Deed of Trust contract agreement to begin with. 

As the trustee is given the presumption of correctness in all of the their actions in a non-judicial foreclosure procedure in the state of CA, it is assumed that all of the documents and actions by either party that the trustee is entrusted to deem as true and correct are in fact so. The trustee is entrusted to make sure that the banks and mortgage servicers follow all of the rules to the deed of trust and the power of sale clause, CA Civil Code 2924 et al, in the state of CA. If the bank controls the trustee and is allowed to break the rules of the power of sale clause then the trustee is incapable of acting in the best interest of the borrower at any point of the duration of the deed of trust agreement. 

I was deceived by XXXX XXXX in that XXXX knew all along the trustee was not independent and was in fact controlled by the bank since the inception of the deed of trust agreement. That is precisely why after two trustees would no longer conduct a trustee sale, a third trustee has been substituted in to illegally foreclose on my home. If this were a civil case agsint me, it would be dismissed and the prosecution would be prohibited from suing me again over the same claim. If the banks are able to repeatedly substitute a trustee it is just a matter of time before the bank forecloses on my home. Given everything, it is impossible for the trustee to foreclose on my home and claim to be independent.

Company response to consumer: Closed with explanation