Part V Lawyers, Deeds & Money: An Appalling Impac, Chicago Title & IndyMac Lending Story
Originally posted April 25, 2008...
Dee's attorney Mr. Strongarm, was an acquaintance and probate specialist,
in regard to trust matters, he was within his bailiwick, but for the legal matter at hand, not the best of choices.
The acts of Dee's father, Mr. A Pauling were clearly wrongful, in gross breach of the Trust.
Mr. Strongarm through several actions managed to have Dee's father, Mr. A. Pauling:
resign as trustee of Big Red's trust; disclaim all rights and interest in the trust and real property; vacate the home; and stipulate to a judgement in favor of his daughter, Dee, in the amount of $724K.
The remaining issue was whether A. Pauling's acts involving third parties, the deeds of trust in favor of the lenders, could be set aside.
Mr. A Pauling was dealing with the lenders as an individual, not a trustee.
Clearly, the loans were given to A. Pauling as an individual, and he did not own the residence.
Considering all the facts presented, IMPAC Funding did not act in good faith.
IMPAC was negligent to not checking the trust, and failed to exert due diligence in their approval of the loans.
The title insurer, CHICAGO TITLE was negligent and committed fraud by facilitating the illegal and invalid title transfers
which allowed A. Pauling to encumber the home as an individual.
IMPAC and CHICAGO TITLE may argue that these kinds of loans and transactions are done all the time.
The argument fails, for many things though done all the time, are still wrongful and actionable.
INDYMAC bought the loans from IMPAC Funding, and argued that they were a good faith purchaser for value. However…
No documents could be produced showing exactly WHEN the purported purchase actually took place, let alone when consideration changed hands.
A purchase is only complete when consideration changes hands. Mr. A. Paulings daughter Dee, filed a lis pendens in February 2006.
Therefore, any consideration paid by INDYMAC to IMPAC for the purchase of the loans after the recording of the lis pendens,
would be subject to any judgment Dee might obtain against IMPAC.
As previously mentioned, there was no assignment of beneficial interest under the deed of trust that IMPAC recorded.
Merely, a blank assignment of beneficial interest under deed of trust contained in the loan file, fully executed and notarized, but with NO transferee identified.
Bottom line: If the lenders, IMPAC & INDYMAC wanted repayment, they should have to seek it from Mr. A Pauling,
not the trust, or his daughter DEE, or the real property.
Dee’s attorney, Mr. Strongarm, was "warned" by the other attorneys, that their cause might have a 25% chance of success.
The attorneys for CHICAGO TITLE, IMPAC and INDYMAC all cited California Probate Code 18100.
With respect to a third person dealing with a trustee or assisting a trustee in the conduct of a transaction,
if the third person acts in good faith and for a valuable consideration and without actual knowledge that the trustee is exceeding the trustee's powers or improperly exercising them:
(a) The third person is not bound to inquire whether the trustee has power to act or is properly exercising a power and may assume without inquiry the existence of a trust power and its proper exercise.
(b) The third person is fully protected in dealing with or assisting the trustee just as if the trustee has and is properly exercising the power the trustee purports to exercise.
Citing this "dummy" law, obviously crafted by legal weasels to protect banks and lenders, from their errors, omissions and lack of due diligence, would be nice,
excepting for the fact that the principles were dealing with someone who under THEIR supervision and DIRECT INSTRUCTION
had encumbered the home, as an individual, NOT A TRUSTEE!
Furthermore, this INDIVIDUAL CLEARLY HAD NO VALID TITLE CLAIM ON THE ENCUMBERED PROPERTY.
The despicable end comes tomorrow in the final installment: Part VI – And In the End
Preface & Intro
Part I: The Hook
Part II: The Tale
Part III: The Sting
Part IV: What Exactly Do We Have Here?
Dee's attorney Mr. Strongarm, was an acquaintance and probate specialist,
in regard to trust matters, he was within his bailiwick, but for the legal matter at hand, not the best of choices.
The acts of Dee's father, Mr. A Pauling were clearly wrongful, in gross breach of the Trust.
Mr. Strongarm through several actions managed to have Dee's father, Mr. A. Pauling:
resign as trustee of Big Red's trust; disclaim all rights and interest in the trust and real property; vacate the home; and stipulate to a judgement in favor of his daughter, Dee, in the amount of $724K.
The remaining issue was whether A. Pauling's acts involving third parties, the deeds of trust in favor of the lenders, could be set aside.
Mr. A Pauling was dealing with the lenders as an individual, not a trustee.
Clearly, the loans were given to A. Pauling as an individual, and he did not own the residence.
Considering all the facts presented, IMPAC Funding did not act in good faith.
IMPAC was negligent to not checking the trust, and failed to exert due diligence in their approval of the loans.
The title insurer, CHICAGO TITLE was negligent and committed fraud by facilitating the illegal and invalid title transfers
which allowed A. Pauling to encumber the home as an individual.
IMPAC and CHICAGO TITLE may argue that these kinds of loans and transactions are done all the time.
The argument fails, for many things though done all the time, are still wrongful and actionable.
INDYMAC bought the loans from IMPAC Funding, and argued that they were a good faith purchaser for value. However…
No documents could be produced showing exactly WHEN the purported purchase actually took place, let alone when consideration changed hands.
A purchase is only complete when consideration changes hands. Mr. A. Paulings daughter Dee, filed a lis pendens in February 2006.
Therefore, any consideration paid by INDYMAC to IMPAC for the purchase of the loans after the recording of the lis pendens,
would be subject to any judgment Dee might obtain against IMPAC.
As previously mentioned, there was no assignment of beneficial interest under the deed of trust that IMPAC recorded.
Merely, a blank assignment of beneficial interest under deed of trust contained in the loan file, fully executed and notarized, but with NO transferee identified.
Bottom line: If the lenders, IMPAC & INDYMAC wanted repayment, they should have to seek it from Mr. A Pauling,
not the trust, or his daughter DEE, or the real property.
Dee’s attorney, Mr. Strongarm, was "warned" by the other attorneys, that their cause might have a 25% chance of success.
The attorneys for CHICAGO TITLE, IMPAC and INDYMAC all cited California Probate Code 18100.
With respect to a third person dealing with a trustee or assisting a trustee in the conduct of a transaction,
if the third person acts in good faith and for a valuable consideration and without actual knowledge that the trustee is exceeding the trustee's powers or improperly exercising them:
(a) The third person is not bound to inquire whether the trustee has power to act or is properly exercising a power and may assume without inquiry the existence of a trust power and its proper exercise.
(b) The third person is fully protected in dealing with or assisting the trustee just as if the trustee has and is properly exercising the power the trustee purports to exercise.
Citing this "dummy" law, obviously crafted by legal weasels to protect banks and lenders, from their errors, omissions and lack of due diligence, would be nice,
excepting for the fact that the principles were dealing with someone who under THEIR supervision and DIRECT INSTRUCTION
had encumbered the home, as an individual, NOT A TRUSTEE!
Furthermore, this INDIVIDUAL CLEARLY HAD NO VALID TITLE CLAIM ON THE ENCUMBERED PROPERTY.
The despicable end comes tomorrow in the final installment: Part VI – And In the End
Preface & Intro
Part I: The Hook
Part II: The Tale
Part III: The Sting
Part IV: What Exactly Do We Have Here?
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