Response to Chisox08 (Original post)
Tue Dec 13, 2011, 03:13 PM
JDPriestly (45,749 posts)
15. In the civil law of California, fraud means
1571. Fraud is either actual or constructive.
1572. Actual fraud, within the meaning of this Chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
3. The suppression of that which is true, by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or,
5. Any other act fitted to deceive.
1573. Constructive fraud consists:
1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the
prejudice of any one claiming under him; or,
2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.
1574. Actual fraud is always a question of fact.
1575. Undue influence consists:
1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair
advantage over him;
2. In taking an unfair advantage of another's weakness of mind; or,
3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.
The California Penal Code provides that
532. (a) Every person who knowingly and designedly, by any false or
fraudulent representation or pretense, defrauds any other person of
money, labor, or property, whether real or personal, or who causes or
procures others to report falsely of his or her wealth or mercantile
character, and by thus imposing upon any person obtains credit, and
thereby fraudulently gets possession of money or property, or obtains
the labor or service of another, is punishable in the same manner
and to the same extent as for larceny of the money or property so
(b) Upon a trial for having, with an intent to cheat or defraud
another designedly, by any false pretense, obtained the signature of
any person to a written instrument, or having obtained from any
person any labor, money, or property, whether real or personal, or
valuable thing, the defendant cannot be convicted if the false
pretense was expressed in language unaccompanied by a false token or
writing, unless the pretense, or some note or memorandum thereof is
in writing, subscribed by or in the handwriting of the defendant, or
unless the pretense is proven by the testimony of two witnesses, or
that of one witness and corroborating circumstances. This section
does not apply to a prosecution for falsely representing or
personating another, and, in that assumed character, marrying, or
receiving any money or property.
532a. (1) Any person who shall knowingly make or cause to be made,
either directly or indirectly or through any agency whatsoever, any
false statement in writing, with intent that it shall be relied upon,
respecting the financial condition, or means or ability to pay, of
himself or herself, or any other person, firm or corporation, in whom
he or she is interested, or for whom he or she is acting, for the
purpose of procuring in any form whatsoever, either the delivery of
personal property, the payment of cash, the making of a loan or
credit, the extension of a credit, the execution of a contract of
guaranty or suretyship, the discount of an account receivable, or the
making, acceptance, discount, sale or endorsement of a bill of
exchange, or promissory note, for the benefit of either himself or
herself or of that person, firm or corporation shall be guilty of a
(2) Any person who knowing that a false statement in writing has
been made, respecting the financial condition or means or ability to
pay, of himself or herself, or a person, firm or corporation in which
he or she is interested, or for whom he or she is acting, procures,
upon the faith thereof, for the benefit either of himself or herself,
or of that person, firm or corporation, either or any of the things
of benefit mentioned in the first subdivision of this section shall
be guilty of a public offense.
(3) Any person who knowing that a statement in writing has been
made, respecting the financial condition or means or ability to pay
of himself or herself or a person, firm or corporation, in which he
or she is interested, or for whom he or she is acting, represents on
a later day in writing that the statement theretofore made, if then
again made on said day, would be then true, when in fact, said
statement if then made would be false, and procures upon the faith
thereof, for the benefit either of himself or herself or of that
person, firm or corporation either or any of the things of benefit
mentioned in the first subdivision of this section shall be guilty of
a public offense.
(4) Any person committing a public offense under subdivision (1),
(2), or (3) shall be guilty of a misdemeanor, punishable by a fine of
not more than one thousand dollars ($1,000), or by imprisonment in
the county jail for not more than six months, or by both that fine
and imprisonment. Any person who violates the provisions of
subdivision (1), (2), or (3), by using a fictitious name, social
security number, business name, or business address, or by falsely
representing himself or herself to be another person or another
business, is guilty of a felony and is punishable by a fine not
exceeding five thousand dollars ($5,000) or by imprisonment pursuant
to subdivision (h) of Section 1170, or by both that fine and
imprisonment, or by a fine not exceeding two thousand five hundred
dollars ($2,500) or by imprisonment in the county jail not exceeding
one year, or by both such fine and imprisonment.
(5) This section shall not be construed to preclude the
applicability of any other provision of the criminal law of this
state which applies or may apply to any transaction.
. . . .
532f. (a) A person commits mortgage fraud if, with the intent to
defraud, the person does any of the following:
(1) Deliberately makes any misstatement, misrepresentation, or
omission during the mortgage lending process with the intention that
it be relied on by a mortgage lender, borrower, or any other party to
the mortgage lending process.
(2) Deliberately uses or facilitates the use of any misstatement,
misrepresentation, or omission, knowing the same to contain a
misstatement, misrepresentation, or omission, during the mortgage
lending process with the intention that it be relied on by a mortgage
lender, borrower, or any other party to the mortgage lending
(3) Receives any proceeds or any other funds in connection with a
mortgage loan closing that the person knew resulted from a violation
of paragraph (1) or (2) of this subdivision.
(4) Files or causes to be filed with the recorder of any county in
connection with a mortgage loan transaction any document the person
knows to contain a deliberate misstatement, misrepresentation, or
(b) An offense involving mortgage fraud shall not be based solely
on information lawfully disclosed pursuant to federal disclosure
laws, regulations, or interpretations related to the mortgage lending
(c) (1) Notwithstanding any other provision of law, an order for
the production of any or all relevant records possessed by a real
estate recordholder in whatever form and however stored may be issued
by a judge upon a written ex parte application made under penalty of
perjury by a peace officer stating that there are reasonable grounds
to believe that the records sought are relevant and material to an
ongoing investigation of a felony fraud violation.
(2) The ex parte application shall specify with particularity the
records to be produced, which shall relate to a party or parties in
the criminal investigation.
(3) Relevant records may include, but are not limited to, purchase
contracts, loan applications, settlement statements, closing
statements, escrow instructions, payoff demands, disbursement
reports, or checks.
(4) The ex parte application and any subsequent judicial order may
be ordered sealed by the court upon a sufficient showing that it is
necessary for the effective continuation of the investigation.
(5) The records ordered to be produced shall be provided to the
peace officer applicant or his or her designee within a reasonable
time period after service of the order upon the real estate
(d) (1) Nothing in this section shall preclude the real estate
recordholder from notifying a customer of the receipt of the order
for production of records, unless a court orders the real estate
recordholder to withhold notification to the customer upon a finding
that this notice would impede the investigation.
(2) If a court has made an order to withhold notification to the
customer under this subdivision, the peace officer who or law
enforcement agency that obtained the records shall notify the
customer by delivering a copy of the ex parte order to the customer
within 10 days of the termination of the investigation.
(e) (1) Nothing in this section shall preclude the real estate
recordholder from voluntarily disclosing information or providing
records to law enforcement upon request.
(2) This section shall not preclude a real estate recordholder, in
its discretion, from initiating contact with, and thereafter
communicating with and disclosing records to, appropriate state or
local agencies concerning a suspected violation of any law.
(f) No real estate recordholder, or any officer, employee, or
agent of the real estate recordholder, shall be liable to any person
for either of the following:
(1) Disclosing information in response to an order pursuant to
(2) Complying with an order under this section not to disclose to
the customer the order, or the dissemination of information pursuant
to the order.
(g) Any records required to be produced pursuant to this section
shall be accompanied by an affidavit of a custodian of records of the
real estate recordholder or other qualified witness which states, or
includes in substance, all of the following:
(1) The affiant is the duly authorized custodian of the records or
other qualified witness and has authority to certify the records.
(2) The identity of the records.
(3) A description of the mode of preparation of the records.
(4) The records were prepared by the personnel of the business in
the regular course of business at or near the time of an act,
condition, or event.
(5) Any copies of records described in the order are true copies.
(h) A person who violates this section is guilty of a public
offense punishable by imprisonment in a county jail for not more than
one year or by imprisonment pursuant to subdivision (h) of Section
(i) For the purposes of this section, the following terms shall
have the following meanings:
(1) "Person" means any individual, partnership, firm, association,
corporation, limited liability company, or other legal entity.
(2) "Mortgage lending process" means the process through which a
person seeks or obtains a mortgage loan, including, but not limited
to, solicitation, application, origination, negotiation of terms,
third-party provider services, underwriting, signing and closing, and
funding of the loan.
(3) "Mortgage loan" means a loan or agreement to extend credit to
a person that is secured by a deed of trust or other document
representing a security interest or lien upon any interest in real
property, including the renewal or refinancing of the loan.
(4) "Real estate recordholder" means any person, licensed or
unlicensed, that meets any of the following conditions:
(A) Is a title insurer that engages in the "business of title
insurance" as defined by Section 12340.3 of the Insurance Code, an
underwritten title company, or an escrow company.
(B) Functions as a broker or salesperson by engaging in any of the
type of acts set forth in Sections 10131, 10131.1, 10131.2, 10131.3,
10131.4, and 10131.6 of the Business and Professions Code.
(C) Engages in the making or servicing of loans secured by real
(j) Fraud involving a mortgage loan may only be prosecuted under
this section when the value of the alleged fraud meets the threshold
for grand theft as set out in subdivision (a) of Section 487.
533. Every person who, after once selling, bartering, or disposing
of any tract of land or town lot, or after executing any bond or
agreement for the sale of any land or town lot, again willfully and
with intent to defraud previous or subsequent purchasers, sells,
barters, or disposes of the same tract of land or town lot, or any
part thereof, or willfully and with intent to defraud previous or
subsequent purchasers, executes any bond or agreement to sell,
barter, or dispose of the same land or lot, or any part thereof, to
any other person for a valuable consideration, is punishable by
imprisonment pursuant to subdivision (h) of Section 1170.
Just sayin'. There's gotta be somethin' in there to hook an indictment or a civil complaint on.
And federal law must be even more forthcoming with regard to bases for bringing actions against these guys. The problem isn't finding grounds for lawsuits or criminal complaints. The problem is that the US government does not have the lawyer-power to go up against the legions of attorneys Wall Street and the banks can hire.
Just going through the documents that a thorough examination of the mortgage fraud would be a catastrophe for the Justice Department budget. The Justice Department and the Obama administration have decided that we simply cannot afford justice. That's my personal take on this.
But they are wrong. We cannot afford the injustice of this. We cannot afford the fact that the incompetent, dishonest people who got us into this mess are still in charge in the financial sector. That's what we cannot afford. That's what cannot be allowed to continue.
On edit, not all mortgage contracts or, in California Deeds of Trust, were entered into fraudulently. But many of them were, and the fraud on the part of borrowers was in a fair number of cases encouraged by mortgage sales personnel paid commissions for sales and not salaries for being careful and honest. And did the banks sell mortgages to third parties knowing that the mortgages were based on fraud? What about the sale of securities about which fraudulent claims were made? Fraudulent claims that can be proved to be fraudulent because of contradictory statements in internal memos regarding the securities that were written or dictated or approved by the very people who sold the securities or their superiors.
Obama is simply chickening out on this.
Not all bankers, not all Wall Street personnel, not all mortgage salesmen, not all mortgage companies committed fraud. That is as certain as the fact that some of them, whether many or a few did, but no, absolutely no indictments have been brought for the blatant fraud.
And what I would like to know is, in the time since the fraud in the mortgage industry became apparent but not prosecuted by the Feds, how many cases of fraud concerning food stamps and education loans and welfare payments and fraud on the banks have been prosecuted?
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|Angry Dragon||Dec 2011||#3|
In the civil law of California, fraud means
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