Declaration of Asher Robertson for Van Do 1199 Spiro 10-31-13 Trimed Down as Per Rich Suggestion

8/14/2019 Declaration of Asher Robertson for Van Do 1199 Spiro 10-31-13 Trimed Down as Per Rich Suggestion

1/8

Page 1 of 8

1

2

34

5

6

7

8

9

10

11

12

13

14

15

1617

18

19

20

21

22

23

24

25

26

27

28

STERLING HARWOOD, SBN 194746Law Office of Sterling Harwood & Associates2114 Senter Rd. #12,San Jose, CA 95113

Telephone: 408-289-5388E-Fax: 408-273-6442

SUPERIOR COURT OF CALIFORNIACOUNTY OF SANTA CLARA

DOWNTOWN- UNLIMITED JURISDICTION

THANH VAN THI DO

Plaintiff

J.P. MORGAN CHASE ANK, N.A.;MORTGAGE ELECTRONICREGISTRATION SYSTEMS, INC.;NORTHWEST TRUSTEE SERVICESINC. ; ALL PERSONS UNKNOWN;CLAIMING ANY LEGAL OR

EQUITABLE RIGHT, TITLE, ESTATE,LIEN, OR INTEREST IN THEPROPERTY DESCRIBED IN THECOMPLAINT ADVERSETO PLAINTIFF'S ADVERSE TOPLAINTIFF'S TITLE THERETO; andDOES 1 through 100, inclusive;

Defendants.

Case No. 113 CV 253372

DECLARATION OF ASHER ROBERTSONEXPERT TESTIMONY REGARDING CHAINOF TITLE AND PEER REVIEW OF PALIDINASSOCIATES REPORT

DECLARATION OF ASHER ROBERTSON

I, Asher Robertson, hereby declare and state that all of the facts set forth in this

declaration are true and correct to the best of my knowledge and if called as a witness I could

and would competently testify as to the following:


2/8

Page 2 of 8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

1617

18

19

20

21

22

23

24

25

26

27

28

1. My name is Asher Robertson. I am a resident of Royal Oaks, California.

2. I am a Mortgage Loan Auditor and Forensic Document Examiner and I am

currently the Chief Auditing Officer at KMBA ASSET LIQUIDATIONS.

3. I have over 24 years of full time experience in all aspects of the field of Real

Estate & Mortgage Banking with extensive knowledge and training in Fraud

Detection and Loss Mitigation.

4. I am a member of the American Society for Testing and Materials International,

my member number is #1694306. I am a participating member of the ASTM

Committee on Forensic Sciences and I am on the Sub-Committee responsible for

setting the standards and practices of Digital and Multimedia Evidence for the

organization and I have full voting status for my committee and sub-committee..

5. I have received extensive expert training in all aspects of Forensic Document

Analysis by some of the most highly regarded experts in the country who handle

the big cases that make national news.

6. I have extensive training by instructors from all of the major United States

Government agencies concerning the area of Forensic Sciences, specifically,

fraudulent documents and expert testimony in federal and superior court.

7. In compliance with Federal Rule 26(a)1(B), my disclosures are listed in my

Curriculum Vitae along with my qualifications and experience, which is attached

to this declaration.

8. In the normal course of my daily business I am often asked to verify the accuracy

and validity of reports that are submitted to the court in cases requiring expert

testimony in my area of experience and expertise.


3/8

Page 3 of 8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

1617

18

19

20

21

22

23

24

25

26

27

28

9. Paladin makes a brief statement that they were not provided a copy of a recorded

Substitution of Trustee and somehow immediately comes to the conclusion that

Flagstar does not own the note. It is entirely unclear what the two have in

common, however, I pulled all county records for the property at 7:47 PM on

October 31, 2013.

10. There was in fact no recorded Substitution of Trustee, however a Notice of

Trustee Sale is recorded and has listed Northwest Trustee Services Inc. as the

Trustee for this loan and apparently is going to facilitate the liquidation of the

property at a Trustee Sale which is scheduled for November 5, 2013 at 10am.

11. There is absolutely nothing in the county records that gives this company any

authority whatsoever to act as Trustee on this loan. Often times we will see a

chain of title that is broken by an appearance of a new Trustee on a Notice of

Default and then a couple of months later, the Substitution of Trustee will be

recorded after the fact and the courts are about split on this issue. Not because

some of the courts condone this behavior, but only because they feel the borrower

was not damaged by this improper book keeping and therefore ignore it.

12. However, this situation is much different than the usual sloppiness that often

occurs. The original Notice of default was in fact filed by Northwest Trustee

Services INC almost 2 years ago on 1/31/12 and yet there is still no valid (or

invalid for that matter) Substitution of Trustee recorded in the county recorders

Office, nor were the proper Affidavits signed and acknowledged as required by

California Civil Code Section 2934a

(a)(1) The trustee under a trust deed upon real property or an estate for years therein given to securean obligation to pay money and conferring no other duties upon the trustee than those which are


4/8

Page 4 of 8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

1617

18

19

20

21

22

23

24

25

26

27

28

incidental to the exercise of the power of sale therein conferred, may be substituted by therecording in the county in which the property is located of a substitution executed andacknowledged by:

(A) all of the beneficiaries under the trust deed, or their successors in interest, and the substitutionshall be effective notwithstanding any contrary provision in any trust deed executed on or afterJanuary 1, 1968; or (B) the holders of more than 50 percent of the record beneficial interest of a seriesof notes secured by the same real property or of undivided interests in a note secured by real propertyequivalent to a series transaction, exclusive of any notes or interests of a licensed real estate brokerthat is the issuer or servicer of the notes or interests or of any affiliate of that licensed real estate

broker.

(2)A substitution executed pursuant to subparagraph (B) of paragraph (1) is not effective unlessall the parties signing the substitution sign, under penalty of perjury, a separate written

document stating the following:

(A)The substitution has been signed pursuant to subparagraph (B) of paragraph (1).

(B)None of the undersigned is a licensed real estate broker or an affiliate of the broker that is theissuer or servicer of the obligation secured by the deed of trust.

(C)The undersigned together hold more than 50 percent of the record beneficial interest of a series ofnotes secured by the same real property or of undivided interests in a note secured by real propertyequivalent to a series transaction.

(D)Notice of the substitution was sent by certified mail, postage prepaid, with return receiptrequested to each holder of an interest in the obligation secured by the deed of trust who has not

joined in the execution of the substitution or the separate document.

The separate document shall be attached to the substitution and be recorded in theoffice of the county recorder of each county in which the real property described in the deed oftrust is located. Once the document required by this paragraph is recorded, it shallconstitute conclusive evidence of compliance with the requirements of this paragraph in favor of substituted trustees acting pursuant to this section, subsequent assignees of the obligationsecured by the deed of trust and subsequent bona fide purchasers or encumbrancers for value of thereal property described therein.

(3)For purposes of this section, "affiliate of the licensed real estate broker" includes any person asdefined in Section 25013 of the Corporations Code that is controlled by, or is under common control

with, or who controls, a licensed real estate broker. "Control" means the possession, direct or indirect,of the power to direct or cause the direction of management and policies.

(4)The substitution shall contain the date of recordation of the trust deed, the name ofthe trustor, the book and page or instrument number where the trust deed is recorded,and the name of the new trustee. From the time the substitution is filed for record, thenew trustee shall succeed to all the powers, duties, authority, and title granted and


5/8

Page 5 of 8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

1617

18

19

20

21

22

23

24

25

26

27

28

delegated to the trustee named in the deed of trust. A substitution may be accomplished, withrespect to multiple deeds of trust which are recorded in the same county in which the substitution is

being recorded and which all have the same trustee and beneficiary or beneficiaries, by recording asingle document, complying with the requirements of this section, substituting trustees for all thosedeeds of trust.

(b)If the substitution is executed, but not recorded, prior to or concurrently with the recording of thenotice of default, the beneficiary or beneficiaries or their authorized agents shall cause notice of thesubstitution to be mailed prior to or concurrently with the recording thereof, in the manner providedin Section 2924b, to all persons to whom a copy of the notice of default would be required to bemailed by the provisions of Section 2924b. An affidavit shall be attached to the substitution thatnotice has been given to those persons and in the manner required by this subdivision.

(c)If the substitution is effected after a notice of default has been recorded but prior to the recording

of the notice of sale, the beneficiary or beneficiaries or their authorized agents shall cause a copy ofthe substitution to be mailed, prior to, or concurrently with, the recording thereof, in the mannerprovided in Section 2924b, to the trustee then of record and to all persons to whom a copy of thenotice of default would be required to be mailed by the provisions of Section 2924b. An affidavit shall

be attached to the substitution that notice has been given to those persons and in the manner required by this subdivision.

(d) A trustee named in a recorded substitution of trustee shall be deemed to beauthorized to act as the trustee under the mortgage or deed of trust for all purposes from the datethe substitution is executed by the mortgagee, beneficiaries, or by their authorized agents. Nothingherein requires that a trustee under a recorded substitution accept the substitution. Once recorded,the substitution shall constitute conclusive evidence of the authority of the substituted trustee or hisor her agents to act pursuant to this section.

(e) Notwithstanding any provision of this section or any provision in any deed of trust, unless a new notice of sale containing the name, street address, and telephone number of thesubstituted trustee is given pursuant to Section 2924f after execution of the substitution, anysale conducted by the substituted trustee shall be void.

13. As the statute states, the substitution is, Not effective unles s all the parties

signing the substitution sign, under penalty of perjury, a separate written

document

14. Additionally, with the implementation the California Homeowner Bill of rights on

January 1, 2013, There are 2 clauses that this Court should take Judicial Notice of:

Verif ication of documents: Lenders that record and file multiple unverified

documents will be subject to a civil penalty of up to $7,500 per loan in an


6/8

Page 6 of 8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

1617

18

19

20

21

22

23

24

25

26

27

28

action brought by a civil prosecutor. Lenders who are in violation are also

subject to enforcement by licensing agencies, including the Department of

Business Oversight, the Bureau of Real Estate.

Enforceability: Borrowers will have authority to seek redress of material

violations of the new foreclosure process protections. I njunctive relief will be

avail able pri or to a f oreclosur e sale and recovery of damages will be

available following a sale. (AB 278, SB 900)

15. In any court action where a document is entered into evidence and it is in

complete contradiction of the public record, there is a break in the chain of title

and lenders will refuse to make a loan on that property because the risk of loss is

far to high.

16. The suspect document CANNOT be trusted until the complete chain of title can

be reconstructed with such rock solid proof that a title company will write a title

insurance policy on the property and guarantee a lender against loss.

17. Additionally any other documents that stem from the questioned document and

depend on the validity of the questioned document are completely useless until

the ques tioned documents validity is determined.

18. Although this is a giant red flag, this in and of itself does not mean an unrecorded

document is invalid, to the contrary.

19. No document must be publically recorded to be valid and enforceable. Not

surprisingly most parties actively engaged in fraudulent activity are well aware of

this fact and will be the first ones to bring that to the attention of anybody

questioning why their document is not in the chain of title.

20. Notwithstanding, recording ones interest in real property is primarily done to

protect the rights of the true real party in interest.
http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0251-0300/ab_278_bill_20120711_chaptered.htmlhttp://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0251-0300/ab_278_bill_20120711_chaptered.htmlhttp://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0251-0300/ab_278_bill_20120711_chaptered.htmlhttp://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0251-0300/ab_278_bill_20120711_chaptered.htmlhttp://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0251-0300/ab_278_bill_20120711_chaptered.html


7/8

Page 7 of 8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

1617

18

19

20

21

22

23

24

25

26

27

28

21. This also works in reverse and protects the public from being sold an interest in

real property by a person who is not the real and true owner.

22. This system of publically recording real estate and lending transaction has been

around for well over 800 years or more and is trusted and well accepted by ALL

normal, honest participants involved in real estate and lending, both on the

consumer side and the commercial side.

23. Failure to accept this time tested, reliable system is highly suspect and without a

reasonable explanation for such blatant and flagrant recklessness, there is almost

certainly fraudulent activity being perpetrated.

24. There are many valid reasons for not having a document recorded, however if

none are offered, other than the tell-tale calling card every fraudster knows and

lives by, a document does not have to be recorded to be valid, it can safely be

assumed that there is a valid reason for the lack of recordation and that reason is

because the liability that comes from recording the document, outweighs the

liability that would come from not recording said document.

CONCLUSION

Due to the deadline that I have been given, I regretfully will not be able to

complete this Declaration, as this court is due to commence its morning calendar in

just a couple of hours. However, with the clear evidence that has been documented in

this report already, the minimum standard for approving the application has easily

been met.

Additionally, during my investigation, I have been able to ascertain that the

Assignment of Deed of Trust is indeed, a forgery and has incurable FATAL


8/8

Page 8 of 8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

1617

18

19

20

21

22

23

24

25

26

27

28

DEFECTS which can easily be proved beyond all doubt, with rock solid,

indisputable evidence taken directly from publically recorded documents.

I certify under penalty of perjury under the laws of the state of California the previous is true

and correct to the best of my knowledge.

Respectfully Submitted,

November 1, 2013, 5:51am

___________________________

Asher Robertson,

Forensic Document Examiner

Documents

Declaration of Asher Robertson for Van Do 1199 Spiro 10-31-13 Trimed Down as Per Rich Suggestion