CALIFORNIA Various Code Sections

Penal Code Code Section 115

(a) Every person who knowingly procures or offers any false or forged instrument to be filed,
registered, or recorded in any public office within this state, which instrument, if genuine,
might be filed, registered, or recorded under any law of this state or of the United States, is
guilty of a felony.

(b) Each instrument which is procured or offered to be filed, registered, or recorded in

violation of subdivision (a) shall constitute a separate violation of this section.

(c) Except in unusual cases where the interests of justice would best be served if probation is
granted, probation shall not be granted to, nor shall the execution or imposition of sentence
be suspended for, any of the following persons:

(1) Any person with a prior conviction under this section who is again convicted of a
violation of this section in a separate proceeding.

(2) Any person who is convicted of more than one violation of this section in a single
proceeding, with intent to defraud another, and where the violations resulted in a cumulative
financial loss exceeding one hundred thousand dollars ($100,000).

(d) For purposes of prosecution under this section, each act of procurement or of offering a
false or forged instrument to be filed, registered, or recorded shall be considered a
separately punishable offense.

Penal Code Section 529 (2)(3)

(a) As used in this section:

(1) "Property subject to forfeiture" means any property of the defendant that is illegal
telecommunications equipment as defined in subdivision (g) of Section 502.8, or a computer,
computer system, or computer network, and any software or data residing thereon, if the
telecommunications device, computer, computer system, or computer network was used in
committing a violation of, or conspiracy to commit a violation of, subdivision (b) of Section
272, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a,
472, 475, 476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section 484e, subdivision
(a) of Section 484f, subdivision (b) or (c) of Section 484i, subdivision (c) of Section 502, or
Section 502.7, 502.8, 529, 529a, or 530.5, 537e, 593d, 593e, or 646.9, or was used as a
repository for the storage of software or data obtained in violation of those provisions.
Forfeiture shall not be available for any property used solely in the commission of an
infraction. If the defendant is a minor, it also includes property of the parent or guardian of
the defendant.

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 (2) "Sentencing court" means the court sentencing a person found guilty of violating or
conspiring to commit a violation of subdivision (b) of Section 272, Section 288, 288.2, 311.1,
311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475, 476, 480, 483.5, 484g,
or subdivision (a), (b), or (d) of Section 484e, subdivision (d) of Section 484e, subdivision (a)
of Section 484f, subdivision (b) or (c) of Section 484i, subdivision (c) of Section 502, or
Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d, 593e, or 646.9, or, in the case of a
minor, found to be a person described in Section 602 of the Welfare and Institutions Code
because of a violation of those provisions, the juvenile court.

(3) "Interest" means any property interest in the property subject to forfeiture.
(4) "Security interest" means an interest that is a lien, mortgage, security interest, or
interest under a conditional sales contract.

(5) "Value" has the following meanings:

(A) When counterfeit items of computer software are manufactured or possessed for sale,
the "value" of those items shall be equivalent to the retail price or fair market price of the true
items that are counterfeited.

(B) When counterfeited but unassembled components of computer software packages are
recovered, including, but not limited to, counterfeited computer diskettes, instruction
manuals, or licensing envelopes, the "value" of those components of computer software
packages shall be equivalent to the retail price or fair market price of the number of
completed computer software packages that could have been made from those components.
(b) The sentencing court shall, upon petition by the prosecuting attorney, at any time
following sentencing, or by agreement of all parties, at the time of sentencing, conduct a
hearing to determine whether any property or property interest is subject to forfeiture under
this section. At the forfeiture hearing, the prosecuting attorney shall have the burden of
establishing, by a preponderance of the evidence, that the property or property interests are
subject to forfeiture. The prosecuting attorney may retain seized property that may be subject
to forfeiture until the sentencing hearing. (c) Prior to the commencement of a forfeiture
proceeding, the law enforcement agency seizing the property subject to forfeiture shall make
an investigation as to any person other than the defendant who may have an interest in it. At
least 30 days before the hearing to determine whether the property should be forfeited, the
prosecuting agency shall send notice of the hearing to any person who may have an interest
in the property that arose before the seizure.

A person claiming an interest in the property shall file a motion for the redemption of that
interest at least 10 days before the hearing on forfeiture, and shall send a copy of the motion
to the prosecuting agency and to the probation department.

If a motion to redeem an interest has been filed, the sentencing court shall hold a hearing to
identify all persons who possess valid interests in the property. No person shall hold a valid
interest in the property if, by a preponderance of the evidence, the prosecuting agency
shows that the person knew or should have known that the property was being used in
violation of, or conspiracy to commit a violation of, subdivision (b) of Section 272, Section
288, 288.2,

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311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472, 475, 476, 480, 483.5,
484g, or subdivision (a), (b), or (d) of Section 484e, subdivision (a) of Section 484f,
subdivision (b) or (c) of Section 484i, subdivision (c) of Section 502, or Section 502.7, 502.8,
529, 529a, 530.5, 537e, 593d, 593e, or 646.9, and that the person did not take reasonable
steps to prevent that use, or if the interest is a security interest, the person knew or should
have known at the time that the security interest was created that the property would be used
for a violation. (d) If the sentencing court finds that a person holds a valid interest in the
property, the following provisions shall apply: (1) The court shall determine the value of the
property. (2) The court shall determine the value of each valid interest in the property.

(3) If the value of the property is greater than the value of the interest, the holder of the
interest shall be entitled to ownership of the property upon paying the court the difference
between the value of the property and the value of the valid interest. If the holder of the
interest declines to pay the amount determined under paragraph (2), the court may order the
property sold and designate the prosecutor or any other agency to sell the property. The
designated agency shall be entitled to seize the property and the holder of the interest shall
forward any documentation underlying the interest, including any ownership certificates for
that property, to the designated agency. The designated agency shall sell the property and
pay the owner of the interest the proceeds, up to the value of that interest. (4) If the value
of the property is less than the value of the interest, the designated agency shall sell the
property and pay the owner of the interest the proceeds, up to the value of that interest. (e)
If the defendant was a minor at the time of the offense, this subdivision shall apply to
property subject to forfeiture that is the property of the parent or guardian of the minor. (1)
The prosecuting agency shall notify the parent or guardian of the forfeiture hearing at least
30 days before the date set for the hearing. (2) The computer or telecommunications
device shall not be subject to forfeiture if the parent or guardian files a signed statement
with the court at least 10 days before the date set for the hearing that the minor shall not
have access to any computer or telecommunications device owned by the parent or guardian
for two years after the date on which the minor is sentenced.

(3) If the minor is convicted of a violation of Section 288, 288.2, 311.1, 311.2, 311.3, 311.4,
311.5, 311.10, 311.11, 470, 470a, 472, 476, 480, or subdivision (b) of Section 484e,
subdivision (d) of Section 484e, subdivision (a) of Section 484f, subdivision (b) of
Section 484i, subdivision (c) of Section 502, or Section 502.7, 502.8, 529, 529a, or 530.5,
within two years after the date on which the minor is sentenced, and the violation involves a
computer or telecommunications device owned by the parent or guardian, the original
property subject to forfeiture, and the property involved in the new offense, shall be subject to
forfeiture notwithstanding paragraph (2). (4) Notwithstanding paragraph (1), (2), or (3), or
any other provision of this chapter, if a minor's parent or guardian makes full restitution to the
victim of a crime enumerated in this chapter in an amount or manner determined by the
court, the forfeiture provisions of this chapter do not apply to the property of that parent or
guardian if the property was located in the family's primary residence during the commission
of the crime.

(f) Notwithstanding any other provision of this chapter, the court may exercise its discretion
to deny forfeiture where the court finds that the convicted defendant, or minor adjudicated to

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come within the jurisdiction of the juvenile court, is not likely to use the property otherwise
subject to forfeiture for future illegal acts.

(g) If the defendant is found to have the only valid interest in the property subject to
forfeiture, it shall be distributed as follows:

(1) First, to the victim, if the victim elects to take the property as full or partial restitution for
injury, victim expenditures, or compensatory damages, as defined in paragraph (1) of
subdivision (e) of Section 502. If the victim elects to receive the property under this
paragraph, the value of the property shall be determined by the court and that amount shall
be credited against the restitution owed by the defendant. The victim shall not be penalized
for electing not to accept the forfeited property in lieu of full or partial restitution.

(2) Second, at the discretion of the court, to one or more of the following agencies or
entities:
(A) The prosecuting agency.
(B) The public entity of which the prosecuting agency is a part.
(C) The public entity whose officers or employees conducted the
investigation resulting in forfeiture.
(D) Other state and local public entities, including school
districts.
(E) Nonprofit charitable organizations.
(h) If the property is to be sold, the court may designate the
prosecuting agency or any other agency to sell the property at
auction. The proceeds of the sale shall be distributed by the court
as follows:
(1) To the bona fide or innocent purchaser or encumbrancer,
conditional sales vendor, or mortgagee of the property up to the
amount of his or her interest in the property, if the court orders a
distribution to that person.
(2) The balance, if any, to be retained by the court, subject to
the provisions for distribution under subdivision (g).

Corporation Code 6215

You are here: California / Corporations Code - CORP / CHAPTER 12. Required Filings by
Corporation or Its Agent [6210. - 6216.] / Section 6215.

Section 6215. (Added by Stats. 1978, Ch. 567.)

Cite as: Cal. Corp. Code §6215.

Any officers, directors, employees or agents of a corporation who do any of the following are
liable jointly and severally for all the damages resulting therefrom to the corporation or any
person injured thereby who relied thereupon or to both:

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(a)Make, issue, deliver or publish any report, circular, certificate, financial statement, balance
sheet, public notice or document respecting the corporation or its memberships, assets,
liabilities, business, earnings or accounts which is false in any material respect, knowing it to
be false, or participate in the making, issuance, delivery or publication thereof with
knowledge that the same is false in a material respect.

(b)Make or cause to be made in the books, minutes, records or accounts of a corporation

any entry which is false in any material particular knowing such entry is false.

(c)Remove, erase, alter or cancel any entry in any books or records of the corporation, with
intent to deceive.

CCP 337

Within four years: 1. An action upon any contract, obligation or liability founded upon an
instrument in writing, except as provided in Section 336a of this code; provided, that the time
within which any action for a money judgment for the balance due upon an obligation for the
payment of which a deed of trust or mortgage with power of sale upon real property or any
interest therein was given as security, following the exercise of the power of sale in such
deed of trust or mortgage, may be brought shall not extend beyond three months after the
time of sale under such deed of trust or mortgage. 2. An action to recover (1) upon a book
account whether consisting of one or more entries; (2) upon an account stated based upon
an account in writing, but the acknowledgment of the account stated need not be in writing;
(3) a balance due upon a mutual, open and current account, the items of which are in writing;
provided, however, that where an account stated is based upon an account of one item, the
time shall begin to run from the date of said item, and where an account stated is based
upon an account of more than one item, the time shall begin to run from the date of the last
item.

3. An action based upon the rescission of a contract in writing. The time begins to run from
the date upon which the facts that entitle the aggrieved party to rescind occurred. Where the
ground for rescission is fraud or mistake, the time does not begin to run until the discovery by
the aggrieved party of the facts constituting the fraud or mistake. Where the ground for
rescission is misrepresentation under Section 359 of the Insurance Code, the time
does not begin to run until the representation becomes false.

CCP 336

You are here: California / Code of Civil Procedure - CCP / CHAPTER 3. The Time of
Commencing Actions Other Than for the Recovery of Real Property [335. - 349.4.] / Section
336a.

Section 336a. (Added by Stats. 1935, Ch. 614.)

Cite as: Cal. Civ. Proc. Code §336a.

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Within six years. 1.An action upon any bonds, notes or debentures issued by any corporation
or pursuant to permit of the Commissioner of Corporations, or upon any coupons issued with
such bonds, notes or debentures, if such bonds, notes or debentures shall have been issued
to or held by the public.

2.An action upon any mortgage, trust deed or other agreement pursuant to which such
bonds, notes or debentures were issued. Nothing in this section shall apply to bonds or other
evidences of indebtedness of a public district or corporation.

CCP 338

Within three years:

(a) An action upon a liability created by statute, other than a penalty or forfeiture.
(b) An action for trespass upon or injury to real property.
(c) An action for taking, detaining, or injuring any goods or
chattels, including actions for the specific recovery of personal
property. The cause of action in the case of theft, as defined in
Section 484 of the Penal Code, of any article of historical,
interpretive, scientific, or artistic significance is not deemed to
have accrued until the discovery of the whereabouts of the article by
the aggrieved party, his or her agent, or the law enforcement agency
that originally investigated the theft.
(d) An action for relief on the ground of fraud or mistake. The
cause of action in that case is not deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the
fraud or mistake.
(e) An action upon a bond of a public official except any cause of
action based on fraud or embezzlement is not deemed to have accrued
until the discovery, by the aggrieved party or his or her agent, of
the facts constituting the cause of action upon the bond.
(f) (1) An action against a notary public on his or her bond or in
his or her official capacity except that any cause of action based
on malfeasance or misfeasance is not deemed to have accrued until
discovery, by the aggrieved party or his or her agent, of the facts
constituting the cause of action.
(2) Notwithstanding paragraph (1), an action based on malfeasance
or misfeasance shall be commenced within one year from discovery, by
the aggrieved party or his or her agent, of the facts constituting
the cause of action or within three years from the performance of the
notarial act giving rise to the action, whichever is later.
(3) Notwithstanding paragraph (1), an action against a notary
public on his or her bond or in his or her official capacity shall be
commenced within six years.
(g) An action for slander of title to real property.
(h) An action commenced under Section 17536 of the Business and
Professions Code. The cause of action in that case shall not be

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deemed to have accrued until the discovery by the aggrieved party,
the Attorney General, the district attorney, the county counsel, the
city prosecutor, or the city attorney of the facts constituting
grounds for commencing the action.
(i) An action commenced under the Porter-Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code). The cause of action in that case shall not be deemed to have
accrued until the discovery by the State Water Resources Control
Board or a regional water quality control board of the facts
constituting grounds for commencing actions under their jurisdiction.
(j) An action to recover for physical damage to private property
under Section 19 of Article I of the California Constitution.
(k) An action commenced under Division 26 (commencing with Section
39000) of the Health and Safety Code. These causes of action shall
not be deemed to have accrued until the discovery by the State Air
Resources Board or by a district, as defined in Section 39025 of the
Health and Safety Code, of the facts constituting grounds for
commencing the action under its jurisdiction.
(l) An action commenced under Section 1603.1, 1615, or 5650.1 of
the Fish and Game Code. These causes of action shall not be deemed to
have accrued until discovery by the agency bringing the action of
the facts constituting the grounds for commencing the action.
(m) An action challenging the validity of the levy upon a parcel
of a special tax levied by a local agency on a per parcel basis.
(n) An action commencing under Section 51.7 of the Civil Code.

A default judgment is obtained by the plaintiff when the defendant does not file a response to
the Summons and Complaint, or does not appear at the hearing. Defaults may be set aside
or vacated by the court at the request of the defendant. California law provides specific
grounds on which a defendant may base a motion for relief from a default or default
judgment. The defendant bears the burden of proving to the court that he or she is entitled to
relief from default. The moving party also must show that they have a meritorious defense to
the original case.

Grounds for relief

Time for filing
Procedure for relief from default
Forms

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GROUNDS FOR RELIEF

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California Code of Civil Procedure sections 473(b), 476(d) and 473.5 specify the grounds on
which you can base a motion for relief of default or default judgment. Permitted grounds
include:

Mistake (CCP 473(b)):

A mistake of fact occurs when a person understands the facts to be other than they are. A
mistake of law occurs when a person knows the facts as they are, but has a mistaken belief
as to the legal consequences of those facts. Ignorance of the law or negligence in
researching the law does not constitute excusable mistake, and therefore is not grounds for
relief from default.

Inadvertence (CCP 473(b)):

Inadvertence stems from a lack of attentiveness, inattention, or fault from negligence.
However, mere inadvertence does not warrant relief unless, on consideration of all the
evidence, the inadvertence is excusable. Forgetting about the case or mislaying the
summons and complaint are not sufficient grounds for relief. Inadvertence is often combined
with excusable neglect.

Surprise (CCP 473(b)):

Surprise occurs when a party is placed in an injurious legal situation, through no fault or
negligence of his or her own, that ordinary prudence would not have guarded against.

Excusable Neglect (CCP 473(b)):

To be excusable, the neglect must have been the act or omission of a reasonably prudent
person under the circumstances.Forgetting about the lawsuit, being too busy to properly
respond, or being unable to afford an attorney are not grounds for excusable neglect.
Examples of excusable neglect include:

◦Illness that disables the party from responding or appearing in court

◦Failure to respond because you relied on your attorney to do so
◦Failure to appear at trial because you relied on misinformation provided by a court officer
Party not given "actual notice" in time to defend (CCP 473.5):
If service of the summons did not result in "actual notice" to a party in time to defend their
case, the default may be set aside. "Actual notice" means the party genuinely knows of the
litigation. Lack of actual notice cannot be caused by the defendant's inexcusable neglect or
avoidance of service.

Void judgments (CCP 473(d)):

The court may, on its own motion or the motion of either party, set aside any void judgment
or order. A judgment or order may be void if the issuing court lacked subject matter
jurisdiction over the action, personal jurisdiction over the defendant, if the judgment or order
granted relief that the court had no power to grant, or if the judgment was procured by fraud
on the court. A common way default judgments are considered void is if the judgment was
obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction over
the defendant. There are many other ways in which a default judgment may be void. For
more information, see:

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◦California Forms of Pleading and Practice Vol. 43, § 489.132 et seq. KFC 1010 .A65
Electronic Access: On the law library computers, using the LexisNexisCD.

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TIME FOR FILING

Different time limitations apply depending on the ground(s) you will be claiming. Motions
must be filed:

◦Within 6 months after entry of default on grounds of mistake, inadvertence, surprise or

excusable neglect
◦Within 2 years of the default judgment if service did not result in actual notice in time to
defend
◦Within 180 days if you are served notice of the entry of default judgment, but had no actual
notice in time to defend the original case
◦At any time after a void judgment is granted, if the motion is made within a reasonable time.
For a default judgment, this may be a reasonable time after the discovery of the existence of
the judgment or order.

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PROCEDURE FOR RELIEF FROM DEFAULT (other than relief based on Void Judgments
under (CCP 473(d))

◦Prepare a Notice of Motion to Set Aside Default and Default Judgment

◦Prepare a Supporting Declaration or Affidavit that states facts showing that the default and
default judgment were the result of the moving party's mistake, inadvertence, surprise, or
excusable neglect
◦Prepare a Memorandum of Points and Authorities
◦Prepare a proposed responsive pleading (e.g., Answer or Demurrer) to the original
Summons and Complaint, to show the court that you have a meritorious defense to the
original case
◦File and serve your Notice of Motion and other support papers, as well as your proposed
responsive pleading.
PROCEDURE FOR RELIEF FROM VOID JUDGMENT UNDER CCP 473(d)

◦Prepare a Notice of Motion and Motion to Set Aside Void Default and Default Judgment
◦Prepare Supporting Declarations or Affidavits that provide evidence that the judgment or
order is invalid.
◦Prepare a Memorandum of Points and Authorities
◦File and serve your Notice of Motion and other support papers on all other parties.

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FORMS

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The forms must be typed on pleading paper, which has numbers down the left side. Pleading
paper is available at the Reference Desk, or can be automatically generated using Microsoft
Word (instructions are available here). See California Rules of Court, Rule 2.100-2.119, for
the required format for your papers.

The resources listed below provide examples of the documents you'll need to prepare. There
are different examples for each of the grounds discussed above. You will need to select the
sample(s) that fit your situation.

Samples of a "Notice of Motion to Set Aside Default and Default Judgment" and "Supporting
Affidavits or Declarations" are available from these resources:

California Civil Procedure Before Trial Vol. 2, Chap. 38. KFC 995 .C34
Electronic Access: On the law library computers, using OnLaw.

California Civil Practice: Procedure Vol. 4, Chap. 29. KFC995 .A65

Electronic Access: On the law library computers, using Westlaw.

California Forms of Pleading and Practice Vol. 43, Chap. 489. KFC 1010 .A65 C3
Electronic Access: On the law library computers, using the LexisNexisCD.

California Pretrial Civil Procedure Vol. 3, Chap. 36. KFC995 .M38

Electronic Access: On the law library computers, using the LexisNexisCD.

For samples of a "Memorandum of Points and Authorities," see:

California Points and Authorities Vol. 7, Chap. 70. KFC 1010 .B4
Electronic Access: On the law library computers, using the LexisNexisCD.

The type of responsive pleading you file will depend on how you wish to handle the original
case against you. Basic overviews of the different types of responsive pleadings are
available:

Online at http://www.scselfservice.org/civ/general/defendant.htm

Win Your Lawsuit Chap. 8. KFC 968 .Z9 D86

In-depth discussions of the options and samples of the forms are available from these
resources:

California Civil Procedure Before Trial KFC 995 .C34

Electronic Access: On the law library computers, using OnLaw.

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California Civil Practice: Procedure KFC 995 .A65
Electronic Access: On the law library computers, using Westlaw.

California Pretrial Civil Procedure KFC 995 .M38

Electronic Access: On the law library computers, using the LexisNexisCD.

California Practice Guide: Civil Procedure Before TrialKFC 995 .W95

Electronic Access: On the law library computers, using Westlaw.

Litigation by the Numbers KFC 995 .G67

California Forms of Pleading and Practice KFC 1010 .A65

Electronic Access: On the law library computers, using the LexisNexisCD.

Win Your Lawsuit KFC968 .Z9 D86

For more details of the law and procedure, see:

California Civil Procedure Before Trial Vol. 2, Chap. 38. KFC 995 .C34
Electronic Access: On the law library computers, using OnLaw.

California Practice Guide: Civil Procedure Before Trial Vol. 1 Chap. 5. KFC 995 .W4
Electronic Access: On the law library computers, using Westlaw.

California Forms of Pleading and Practice Vol. 43, Chap. 489. KFC 1010 .A65 C3
Electronic Access: On the law library computers, using the LexisNexisCD.

California Civil Practice: Procedure Vol. 4, Chap. 29. KFC 995 .A65

California Pretrial Civil Procedure Vol. 3, Chap. 36. KFC 995 .M38
Electronic Access: On the law library computers, using the LexisNexisCD.

California is a deed of trust state where foreclosure is by private sale pursuant to the
contractual provisions of the deed of trust. Bear in mind that the process of private sale
depends completely upon the conformity of the Lender to the established contractual process
and to state statutes.

The trustee executes a deed. The validity of the deed depends upon the regularity of the
process.

The promissory note is the evidence of the indebtedness. The maker of a promissory note is
obligated pursuant to its terms to the named Lender and to the Lender's successor by

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negotiation when the promissory note is properly endorsed and delivered. There are a few
ways in which ownership to a promissory note can be transferred without indorsement, such
as by devise or by intestate succession, but these are unusual cases. In most instances, the
provisions of the UCC relating to negotiation must be strictly followed.

No assignment is necessary to transfer the ownership of the debt. This is transferred by

indorsement and delivery of the promissory note. Neither is any express assignment
required to transfer the ownership of the mortgage, deed of trust or other mortgage security
instrument, as under the common law the mortgage security follows the debt upon
negotiation of the debt (Ohio is an exception).

(MERS mortgages present a special case, as the MERS involvement provides for a "bi-
furcation" of the debt and the mortgage. Precisely what happens in this instance is still being
litigated.)

However, since the negotiation of the promissory note is by UNDATED indorsement and
delivery, and the servicer very often lacks good evidence of the date of delivery, assignments
are being forged by contract forgers and perjurers to create false evidence of the transfer!

Since a properly negotiated promissory note endorsed and delivered to a successor to the
original Lender would transfer the Lender's right to enforcement, this would also tend to
entitle the new holder to the right to declare default, even absent any assignment.

A declaration of default can be as to the promissory note and/or the mortgage. Since the
right to enforce the mortgage follows the note, the new holder would also tend to have the
right to declare default due to any breach after the actual negotiation.

But then emerges the proof problem. Since the mortgage investor lacks other good evidence
of the date of the negotiation and the mortgage investor failed to record the assignment
contemporaneous to the sale in securitization, the foreclosure mills have been forging
assignments for use in foreclosure cases as false evidence.

Now this can actually result in a bit of a tangle. Suppose that Epic Mortgage Trust obtains a
promissory note through valid negotiation on January 1, 2007, but fails to record a mortgage
assignment. Suppose you, the borrower, default and that Epic sends you a a notice of
default and/or records a notice of default on July 1, 2009. Now further suppose that two
months later on September 1, 2009, Epic's attorneys belated forge a mortgage assignment
which purportedly assigns the mortgage to Epic on September 1, 2009, more than two years
after the actual negotiation and two months after the notice of default. This forgery purports
to prove that Epic came into ownership on September 1, 2009, even though Epic served a
notice of default on July 1, 2009!

While Epic's notice of default was probably valid when served, the subsequent forgery tends
to refute and even eviscerate its apparent authenticity!

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The same would generally be true of an appointment of substitute trustee. If this
appointment is dated before the forged assignment, even though as the valid holder of the
promissory note and beneficiary of the mortgage Epic might have been entitled to appoint a
substitute trustee, the creation of a post-appointment forged assignment seems to indicate
that Epic came into ownership after the date of the appointment and therefore lacked the
authority to execute such an instrument. Instead of supporting the foreclosure, the forgery
actually undermines it!

It is important to distinguish the reality. It is not so much that the mortgage investor needed
to execute the assignment before the notice of default or before the appointment of substitute
trustee, but rather in creating this forgery after the execution of these other possibly valid
instruments the subsequent assignment tends to call into question or cloud the validity of the
earlier actions.

Since the validity of the substitute trustee's deed depends upon the regularity of the private
sale process, calling attention to this sort of sequencing defect may very well stall the
foreclosure and force the mortgage investor to repeat prior steps in the process.

You may want to push them back to square one, repeating notices of default and
appointments of substitute trustee. Then, consider attacking the forged assignment itself.
There are very often readily apparent defects in the forgery which can cause further
problems for the mortgage investor and the unscrupulous attorneys it employs.

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