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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 11853
Experience:  I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
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On April 29, 2005 my ex-wife signed a loan agreement and Deed

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On April 29, 2005 my ex-wife signed a loan agreement and Deed of Trust with World Savings and Loan. Just prior to that we were instructed by the bank to move $80,000 from Plaintiff’s account to her account for the application process and put the house in her name. The Bank said we had to do this because another house that World Savings loaned us money for was in Plaintiff’s. On May 2, 2005 a Grant Deed and Deed of Trust are recorded in her name and the banks. On May 12, 2005 the property is signed over to Plaintiff and signed by a Judge on May 16, 2005 in an order. Plaintiff faxes a copy to the bank the next day and is told just to leave things the way they are. On June 15, 2005 the sellers Deed of Release is Recorded. My ex-wife never contributed a penny towards the house nor did she every live in it.
However, after that the bank demanded $10,000 until I finished remodeling. In May 2008 after an operation I put the house in a trust and record in Placer county. In 2009 I started have problems with the bank which was now Wells Fargo. I tried to get a modification and after talking with the bank I was told that if I stopped making payments they would do a modification. They said that the only draw back was it would be on my credit history. After approximately fifty days I was told that I wasn't going to get a modification and they were going to foreclose on both houses. I then sent in payments for both houses. The next thing I now the money is return and I am told that it will not be accepted because they’re foreclosing. After many phone calls I was told if I sold the other house right away I could do a modification on the one remaining. I sold the one house and then was refused consideration of modifying and told I wasn't considered a borrower.
I put $100,000 down another 30,000 to 50,000 in materials for remodeling which I have but have not added them up yet not to mention labor and my time. And approximately $80,000 in payments which I can’t get a record of because Wells Fargo refuses to give me any information relating to the house.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Andrea, Esq. replied 1 year ago.

Hello and Welcome to JustAnswer, My name is XXXXX XXXXX my goal is to provided you with Excellent Service,

 

 

1. Who is the Plaintiff ?

2. Is Wells Fargo foreclosing ?

3. In whose name is XXXXX XXXXX ?

4. You speak of your "ex wife", what role does each of you play in the present status of the house ?

Thank you,

 

Customer: replied 1 year ago.

Who is the Plaintiff ? me


 


2. Is Wells Fargo foreclosing ? yes


 


3. In whose name is XXXXX XXXXX ? I am on the deed of trust filed May 2008 but gave notice May 16, 2005


 


4. You speak of your "ex wife", what role does each of you play in the present status of the house ? she never paid a penny or lived here and we were divorced before purchase of house. The mortgage and note are in her name.

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Todd,

 

I want to be sure that I understand you correctly; you are saying that,

 

1. Your wife got a loan and signed a Note and mortgage (Deed of trust);

2. Thereafter she signed title to the house (Deed) to you on May 12, 2005 as part of a divorce settlement;

3. You gave notice to the bank of the transfer of title on May 16, 2005

4. In ay, 2008 you placed title to the house in a trust and recorded the deed

5.. The house is now owned by the trust

 

Are the above statements correct ?

 

If so, Who are you suing and why ?

Is this the case that was moved to Federal Court ?

And, What is your question ? Are you asking if you have a case against Wells Fargo ?

 

I apologize for the questions, but the facts are a little confusing and you have not stated a question which ties all these together,

Thank you,

 

 

Customer: replied 1 year ago.

1. Your wife got a loan and signed a Note and mortgage (Deed of trust);


 


No at the time she was and still is my ex wife.


 


2. Thereafter she signed title to the house (Deed) to you on May 12, 2005 as part of a divorce settlement; yes in the property part of the divorce the dissolution was all ready done and a judge sign the order May 16, 2005


 


3. You gave notice to the bank of the transfer of title on May 16, 2005


 


Yes I contact the bank and fax copies of the settlement but was told it would be 30k to put in my name and just to leave it alone was probably the best thing to do.


 


4. In ay, 2008 you placed title to the house in a trust and recorded the deed yes


5.. The house is now owned by the trust yes it is under my name in a living revocable trust


 


If so, Who are you suing and why ? I have asked and received a preliminary injunction in state court and ask the court for declaratory relief under California Home Owner Bill of Rights to decide if I am a borrower under that Act because Well Fargo refuse to recognize me as trustor on the deed of trust and for other varies violations of the Act


 


Is this the case that was moved to Federal Court ?


yes it was just removed but I am trying to have it remanded


 


And, What is your question ? Are you asking if you have a case against Wells Fargo ?



I want to see what you thought about the situation and Wells Fargo's right to foreclose because they had notice and I am not on the note or the deed. Laches, Statue of Limitations, estoppel unjust enrichment, detrimental reliance, ect.


 


I apologize for the questions, but the facts are a little confusing and you have not stated a question which ties all these together,



No apologize needed ask as many as need I don't think they is a quick answer a lot of issues it is just a small segment.

Expert:  Andrea, Esq. replied 1 year ago.

Thank you, Todd, first for your indulgence in Answering my questions and your kind patience. The reason I am asking all these questions is because I do not give general Answers that can be applied to every situation. I prepare specific Answers for to my customers' questions,

 

I understand your situation now and will try to address your concerns, but if I miss a point, please let me know and I will be glad to address that concern or clarify something you may not fully understand.

Answer

 

You do have a cause of action against Wells Fargo for misrepresentation, misleading information, detrimental reliance, unlawful business practices, and possibly fraud which I will discuss below.

 

First, please allow me to cover certain points so that you will know "where I'm coming from". In order for a Court to have power to order a person, or entity to do, or not to do something, they must be a party to an action - breach of contract, personal injury, divorce proceedings, etc., and the Court must have personal jurisdiction over them. A sues B; The Court has jurisdiction only over A and B. A asks the Court for several things and among them is to order C to do something. In entering judgment in favor of A, the Judge cannot also say, "By the way, I am also imposing an Order on C to give A his car back.

 

Result: The Judge can only Order A or B to do something because they are the only parties in the action, and the only parties over which the Court has jurisdiction and authority to compel them to do or not to do something.

 

Divorce proceedings involve Husband (H) and Wife (W), nobody else is a party to the divorce action. The Court cannot order C to do anything. In your divorce proceedings and the division of the community property, the Judge could "mix and match" property in order to arrive at a just resolution and division. The Judge had no power to enter an Order compelling "C" to do something. For this reason, no matter how the Judge divided the community property, if property was encumbered by a mortgage (Or, "Deed of Trust" as they are sometimes referred to in California), the Judge had no authority or jurisdiction over any bank or lender to compel them to do anything. The bank made a loan to your wife and she executed a mortgage (Or, Trust Deed) as security for the repayment of the loan. She was and still is the obligor on the Note she signed and the lender, or its successor in interest (Wells Fargo) can still sue her, as the Obligor on the Note if it is not paid. If any installment under the Note was not paid, the lender cannot sue you because you said that you did not sign the Note. That is why you are not recognized as the "borrower".

 

Almost all Notes and Mortgages (and, Deeds of Trust) have a "Due on Sale" clause which means that if title to the property is sold, transferred, or otherwised disposed of, to someone else, the entire outstanding unpaid balance under the Note becomes due and payable and the lender can immediately demand payment of the entire unpaid balance. Your former wife transferred title to the house to you and then you transferred title to the trust. The fact that the Judge might have Ordered your former wife to transfer title to the property to you in the course of dividing the community property is irrelevant and of no concern to the lender and the lender could not be Ordered by the Judge to remove your former wife's name from the Note and substitute yours because the Court had no jurisdiction over the original lender, Wells Fargo, or any other bank that was involved. This does not change simply because you gave notice to the bank. The bank had to do some act to signify acceptance of you as the Obligor (borrower) under the Note and sign a Release in favor of your former wife in order to release her of the liability of any further payments under the Note.

 

Equally irrelevant to the lender is the fact that your former wife never lived in the house, or paid anything under Note, that you made the down payment and all subsequent payments and paid all expenses for the improvements you made to the house. Also irrelevant to the bank is the fact that you and the trust are basically the same individual. The bank will still look at that transaction as a "transfer of title" to the property.

I believe that all of the above grounds which I mentioned form the basis of your lawsuit, but your strongest argument would be detrimental reliance, justified reliance, estoppel, unlawful business practices, and possibly fraud because a lender cannot tell you to act a certain way, i.e., stop making monthly payments so that they can modify the loan, and then use non-payment to hold you in default and foreclose on the mortgage (Or, Deed of Trust). The law would say to Wells Fargo that they are estopped from holding the Obligor (whoever that might be - your former wife, or you) in default and then foreclose. Equally significant is the their representation to you that selling the other property would make it easier to modify the loan (This is detrimental reliance). You relied on their representations that they would modify the loan if you sold the other property.

 

You could also make a strong argument that because they continued to accept your payments over a period of time and negotiated with you about the modification, they are estopped from denying that they looked and treated you as the borrower.

 

Your cause of action is based solidly on misrepresentation, misleading information, justified reliance and detrimental reliance. Wells Fargo misrepresented and misled you in saying that they would refinance the loan if you stopped making the regular monthly payments, and if you sold the other property. You had no reason to believe, and they gave you no reason to believe, that they would not refinance the loan, if you did as they asked. Therefore, you were justified in relying on the information they were giving you. As a result of relying on their information, you stopped making the regular monthly payments and you also sold the other property, all to your financial detriment. If Wells Fargo never intended to refinance the loan, but misrepresented to you that they would, then you would also have fraud and unlawful business practices on the part of Wells Fargo.

 

 

___________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

 

Customer: replied 1 year ago.

Have you read California new homeowner bill of rights? And what about recording and the fact that they have not taken any action for five years?

The property was classify separate property in the order and it was.

World Saving turn into Wachovia then into Wells Fargo and these mergers were never recorded in county records. It is late probably for you but I would like to talk more if you are working the next couple days. Right now I have a preliminary injunction and all the issues we just talk about would be for after I lost the house so I am limited right now to the issue I can raise this is why the attorney for Wells Fargo is trying to expand the issues in hopes of getting issue preclusion or res judicata. So I have to be careful to stay in the narrowly limits of the Act and use discover to gather information and maybe get lucky and find something defective with the chain of title or perfecting it. I maybe able to be classified under the Act as a borrower this was the argument that got the judge's ear. The loan was securitized through Wachovia Pass through Certificate and I am limited with the Act on what I can get and show me the note is kind of a weak or silly argument but under the UCC you must have it to perfect. I can't raise it under the Act but it is the Origination, Servicing and Securitized is where a lot of the banks don't want to talk about. But they are a few thing I should be able to get though limited under the Act. I guess one of my main concerns is I am pretty confident that I can get a judge to classify me as a borrower but was thinking is they any advantage not being one. What about recession.

Expert:  Andrea, Esq. replied 1 year ago.

What do you mean by "recession" ?

 

 

Customer: replied 1 year ago.

What do you mean by "recession" ?


 


sorry rescission

Expert:  Andrea, Esq. replied 1 year ago.

Hello, Todd,

 

1. I am familiar with the California Homeowners' Bill of Rights which went into effect January 1, 2013 ("HBOR")

 

2. World Savings --- Wachovia --- Wells Fargo -

 

Mergers/Acquisitions never had to be recorded and the HBOR did not impose that requirement; therefore, they still do not have to be recorded. You might be thinking of "Assignments" which must be recorded. When Wachovia took over World Savings, the latter had to execute an "Assignment" of the Notes and the accompanying Mortgages to Wachovia. And, when Wells Fargo took over Wachovia, the latter had to execute an Assignment of the Notes and accompanying Mortgages, in favor of Wells Fargo. It is these Assignments that were, and are required to be recorded, not the mergers.

 

 

3. Classification of Property and "Privity of Contract" -

 

The classification of the subject property as your sole separate property is separate and apart from, and should not be confused with "Privity of Contract" because they are two different concepts. The Court's determination in the divorce proceedings, that the property in question was your sole, separate property is irrelevant to the present lawsuit because that determination affects your rights to the property as between you and your former wife and does not involve Wells Fargo, or any predecessor in interest. Your former wife has "Privity of Contract" with Wells Fargo, and its predecessors because she executed the loan documentation, including the Note. One who is not a party to the loan transaction and has not executed the loan documentation, or the Note, has no "Privity of Contract". The loan made to your former wife is a binding contract. You were not a party to that contract and, therefore, do not have "Privity of Contract".

 

4. Status as Borrower; Advantage; Disadvantage -

 

I believe that right now, you are getting way ahead of yourself because your first order of business should be your first order of business should be to have the Court determine your status as a "Borrower" because then, everything will fall into place and Wells Fargo will not be permitted to deny any of your requests to them for documents and information. You would do this by filing a "Motion for Declaratory Judgment and Deterination of Status". The disadvantage of not being a "Borrower" in this context is that you will be treated as a "third party' and your requests for documents and information will be denied by Wells Fargo, and without this information, it would be impossible to defend a foreclosure action. You will not have, what the law calls, "Standing" tomake any requests for documents and/or information. The advantage of not being a borrower is that Wells Fargo cannot sue you under the Note and, therefore, cannot get a Judgment against you.

___________________________________________________________________

 

___________________________________________________________________

 

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______________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

 

 

 

 

Andrea, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 11853
Experience: I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
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Andrea, Esq.
Andrea, Esq.
Real Estate Lawyer
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I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.