Thanks for the very insightful posting, have read through it now several times and understand the situation much better now because of your input. Thanks again, Robert Somerton
Below are a few links updating our battle with Bank of America.
William A. Roper, Jr. wrote:
If you seriously doubt that a California judge would restrain or enjoin your suggested destruction of the property then you are certainly very naive
and poorly informed! The fact of various frauds occuring elsewhere and investigations into such frauds is likely to be totally irrelevant
to the analysis of the court.
While I understand both your frustration and your anger, your belief that the Lender, purported mortgage investor and/or servicer is without legal recourse to intercede
seems to reflect that you have neither studied nor understand the problems or your respective rights.
I would encourage you to take out and very carefully read
the language appearing within Sections 7 and 9 of your deed of trust
granted to the Lender. Your deed of trust, like those of most Californians, is most likely on Fannie Mae / Freddie Mac Uniform Instrument Form 3005
, last revised in January 2001. See:
The only likely deviations to the form shown are those expressly authorized by both Fannie and Freddie, such as those discussed on this Freddie page:
A change to include mention of MERS and identification or MERS as the mortgagee and beneficiary is the most common alteration. Additional riders to the mortgage in the case of adjustable rates, a balloon payment, and characterization of the property as a condomenium or other similar Planned Unit Development (PUD) are the other most common deviations.
Section 7 discusses "Preservation, Maintenance and Protection of the Property". Section 9 discusses "Protection of Lender's Interest in the Property and Rights Under this Security Instrument".
These provisions of the deed of trust would seem to give the Lender some rights to the protection and preservation of the property even without actually taking title through judicial sale. In fact, as further discussed below, the trustee is already holder of the legal title to the property.
It seems to me quite likely that the Lender is going to be able to persuade a judge that this standard deed of trust language would entitle the Lender to a court order restraining or enjoining the destruction of the property, particularly if you can be proven to be threatening to do just that and thereby harming the Lender's security interest in the property.
In a deed of trust state, such as California, you also need to take care to understand and appreciate that the fundamental character
of the deed of trust is the conveyance in trust of the property to the trustee during the pendency of the loan:
For this purpose, Borrower irrevocably grants and conveys to Trustee,
in trust, with power of sale, the following described property located
in the _________________________________ of ______________________________:
[Type of Recording Jurisdiction] [Name of Recording Jurisdiction]
Usually, this language is going to mean that the trustee holds legal title
to the property, while the borrower holds only an equitable title and right to possess the property, subject to the covenants of the note and deed of trust.
It is unclear to me what California criminal
statutes could be affected by the destruction of the property as discussed. But I would encourage you to at least get a look at the California statutes on vandalism
. And note that there are also often criminal statutes which make it a much more serious crime to destroy property in the commission of a crime
The former are likely to implicate the injury, damage or destruction of another person's property
. Whether these contemplate or could be found to contemplate the destruction of property you have vested in the person
of the trustee
by your grant of the deed of trust is unclear to me. If the trustee is found to own
the property in trust, it seems to me that you and any persons you employ to destroy
the property might be criminally charged.
The latter laws would be the sort of statutes that would be used to compound the penalties when there is damage to private property which occurs during the commission of a crime, like those high speed chases we see in Hollywood movies where damage to vehicles, fixtures, businesses and real property are epic. Such a statute might grade a crime by the dollar value of the damage and push a crime into a class of much more serious felonies, so that a person who causes a single serious accident, injury or death resisting arrest or criminally fleeing the scene of an accident can be charged with a serious felony.
In this way, if it was found that you had violated some minor ordinance, such as construction or demolishion without a permit
, might be graded as a serious felony if the damage was significant.
In many states, there are express laws about the removal, concealment and/or destruction of property securing credit transactions, though these more often contemplate a secured lien on movable property such as an auto, boat or the like.
Bear in mind that communications from BAC or its agents are very likely intended to get you to make statements that can be used against you in subsequent court proceedings
. If they read in the news that you might damage your property, this is probably largely inadmissible hearsay
(though even this would likely get into the record if you failed to appear and object). If YOU TELL THEM that you intend to damage your property, this is probably going to be the foundation of an affidavit that they present to a court to restrain or enjoin such damage.
If you fail to appear at a hearing at which a restraining order or injunction is sought, they will almost surely obtain the requested order. If you appear in person and are asked and admit under oath that you intend to damage the property, it seems inconceivable to me that they would not get the order.
I recognize that there are brave people who take dramatic steps in civil disobedience to demonstrate the depth of their feelings and commitment to a cause. Some of these people, like Mahatma Gandhi, have advocated non-violent civil disobedience. Others, believe that some violence, to include destruction of private property is legitimate. And still others engage in terrorism or mass destruction in hopes of bring attention to their cause or beliefs. The public is generally more supportive of the former
than the latter
Those who share your frustration can easily cheer your resistance, but they will mostly not have to bear the consequences of your actions.
To the extent that you proceed with this plan, I would think it best if you understand the consequences, both civil and possibly criminal of both the threat to destroy the property, and the actual actions to accomplish that end.Please understand that I am NOT an attorney and CANNOT GIVE YOU LEGAL ADVICE. I realize that you are angry and frustrated. I understand your distress. I WOULD ENCOURAGE YOU TO SPEAK WITH BOTH A GOOD CIVIL LAWYER AND A CRIMINAL LAWYER BEFORE UNDERTAKING THE ACTIONS SUGGESTED IN THIS POST. You have unquestionably dramatized your plight and captured the attention and imagination of others. And I pray that this ends well for you!