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AFFIDAVIT OF CYNTHIA J. CANTRELL
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STATE OF ARIZONA )
) ss.
County of MARICOPA )
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I, Cynthia J. Cantrell, being first duly sworn, deposed and state as follows:
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1.
I am over the age of eighteen years and qualified to make this affidavit. I
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am a resident of the State of Arizona and make this Affidavit based on my own personal
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knowledge.
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2.
I have been employed in the real estate industry for over six years and have
been involved in over two-hundred real estate transactions.
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I am a licensed real estate broker in Arizona.
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I have been a real estate investor since 1997.
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I have knowledge and experience in the banking industry.
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I am a Certified Title Abstractor.
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I am a Notary Public in the State of Arizona, and a member of the
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American Association of Notaries. I have studied the laws regarding Notaries Public
that apply in this matter, and am able to render an opinion based on such.
8.
I have personal knowledge and experience to render opinions on the topics
of broken chain of title, notary fraud and fraud regarding foreclosure documents such as
the Deed of Trust, Interest First NOTE, Assignment of Deed of Trust, Substitution of
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Trustee, Notice of Default and Election to Sell under Deed of Trust and Notice of
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Trustee’s Sale documents.
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9.
I have studied numerous cases where fraud occurred resulting in a
fraudulent foreclosure.
10.
I have reviewed the documents provided by Your Name Here as to her
home and have conducted a preliminary audit of the Deed of Trust, Interest First
Affidavit of Cynthia Cantrell ● Page 1
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NOTE, Notice of Default and Election to Sell under Deed of Trust, Substitution of
Trustee (2), Assignment of Deed of Trust and the Notice of Trustee Sale.
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I express the following opinions that are offered within a reasonable degree
of factual certainty and financial probability based upon my review of numerous cases
specifically in Arizona, my review of numerous cases with the same or similar language
in the Deeds of Trust and Interest First Notes as the present case, my knowledge in
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relation to other similar cases with which I am personally familiar, and the contents of
the documents referred to above.
A.
The DEED OF TRUST was dated on March 25, 2004 and recorded on
April 5, 2004 (Clark County Nevada recorded document #??????????).
APN # 000-00-0000
a.
Pursuant to the document, it was notarized by Name of Notary on
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March 30, 2004 who claims to have acknowledged the signature of
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Your Name Here in Los Angeles County Nevada. How could
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notary, Name of Notary have personally witnessed the signature of
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Your Name Here March 30, 2004 if Your Name Here signed the
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document on March 25, 2004? I have researched the laws regarding
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Notaries in the state of Nevada and have attached them as Exhibit A.
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On page 5 of Prohibited Acts, A notary public may not: Notarize a
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document without the signer being in the Notary’s presence.
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Therefore, the notary failed to comply with the requirements of her
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official duties thereby nullifying his authorities.
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b.
I have carefully reviewed the verbiage in the DEED OF TRUST.
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On page 2 it states, “(E) “Note” means the promissory note signed
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by Borrower and dated March 25, 2004 …”
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Affidavit of Cynthia Cantrell ● Page 2
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c.
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Borrower and dated March 25, 2004 common sense would tell us the
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DEED OF TRUST was signed and dated on March 25, 2004 as well.
d.
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Given the fact that the “Interest First NOTE” was signed by the
On page 1 of the DEED OF TRUST is states, “(A) “Security
Instrument” means this document, which is dated March 25, 2004.”
e.
On page 14 of the DEED OF TRUST, it states, “By SIGNING
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BELOW, Borrower accepts and agrees to the terms and covenants
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contained in this Security Instrument and in any Rider executed by
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Borrower and recorded with it.” It is my opinion that by signing
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below those words indicates the signer agrees with everything in the
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document above her signature. Therefore the date of the document
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is March 25, 2004.
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f.
If it is proven that Your Name Here signed the DEED OF TRUST
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and Interest First NOTE on March 30, 2004, it is my opinion the
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DEED OF TRUST would be invalid. The DEED OF TRUST
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specifically references the promissory note signed by Borrower and
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dated March 25, 2004. If Your Name Here did not sign Interest
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First NOTE until March 30, 2004 then the DEED OF TRUST would
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not be evidenced by the Interest First NOTE signed and dated on
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March 25, 2004.
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Pursuant to Carpenter v Longan (1872), which has never
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been overturned, the DEED OF TRUST and Interest First NOTE
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must never be apart in order for the DEED OF TRUST to be valid.
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Therefore, it is my opinion:
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If notary fraud occurred, the DEED OF TRUST (Clark County
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Nevada recorded document # ??????????) is invalid, unenforceable,
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and void. If the DEED OF TRUST and the Interest First NOTE
Affidavit of Cynthia Cantrell ● Page 3
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were signed on March 30, 2004, the DEED OF TRUST is still
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invalid, unenforceable, and void.
g.
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TRUST was given an alias of “Security Instrument” to be used as
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its new name through out the document.
h.
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new name through out the document.
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i.
j.
Pursuant to the invalid DEED OF TRUST, FIRST AMERICAN
TITLE COMPANY OF NEVADA was given an alias of “Trustee”
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to be used as its new name through out the document.
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Pursuant to the invalid DEED OF TRUST, Lender is the beneficiary
under this Security Instrument.
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Pursuant to the invalid DEED OF TRUST, CORNERSTONE
HOME LENDING was given an alias of “Lender” to be used as its
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Pursuant to the invalid DEED OF TRUST, the invalid DEED OF
k.
Pursuant to the invalid DEED OF TRUST, the name “Borrower”
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was issued to YOUR NAME HERE, AN UNMARRIED WOMAN
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as an alias.
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l.
It is my belief the creation of an alias to confuse and/or defraud any
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party may be considered a criminal act, especially when that alias is
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used to conceal facts, defraud a party, and/or to unlawfully convert
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property.
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m.
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I do not know who to YOUR NAME HERE, AN UNMARRIED
WOMAN is nor how she pertains to Your Name Here.
n.
After reviewing the invalid DEED OF TRUST, I have found no
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evidence that Your Name Here was ever lent the sum of $83,700.00
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by CORNERSTONE HOME LENDING.
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Affidavit of Cynthia Cantrell ● Page 4
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o.
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Furthermore, pursuant to the invalid DEED OF TRUST, I have
found no evidence that Your Name Here ever borrowed anything
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from CORNERSTONE HOME LENDING.
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p.
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In addition, pursuant to the invalid DEED OF TRUST, I have found
no verbiage that indicates CORNERSTONE HOME LENDING ever
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lent Your Name Here anything, including without limitations, the
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sum of $83,700.00.
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q.
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It is my opinion, based on the invalid DEED OF TRUST, that Your
Name Here did not receive the sum of $83,700.00 from
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CORNERSTONE HOME LENDING and that the invalid DEED OF
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TRUST was written to confuse Your Name Here into believing she
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did by creating an alias of Borrower for to YOUR NAME HERE,,
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AN UNMARRIED WOMAN and CORNERSTONE HOME
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LENDING an alias of Lender.
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Furthermore, on page 1 paragraph (G) the invalid DEED OF TRUST
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gives a new definition of the word loan. It states, “(G) “Loan”
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means the debt evidenced by the Note …”
s.
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Pursuant to the invalid DEED OF TRUST, nowhere does it say that
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Your Name Here was ever loaned anything by CORNERSTONE
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HOME LENDING
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I cannot find any reason for the invalid DEED OF TRUST to use a
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new definition of the word loan, other than to confuse Your Name
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Here into believing she actually received a loan.
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B.
The Interest First NOTE was dated on March 25, 2004.
a.
After reviewing the Interest First NOTE I have found no evidence
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that Your Name Here was ever lent the sum of $83,700.00 by
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CORNERSTONE HOME LENDING.
Affidavit of Cynthia Cantrell ● Page 5
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b.
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Pursuant to the Interest First NOTE, on page one of the Interest First
NOTE , it states,
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“1. BORROWER’S PROMISE TO PAY
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In return for a loan that I have received, I promise to pay
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U.S. $
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83,700.00 (this amount is called “Principal”), plus interest,
to the order of Lender, Lender is CORNERSTONE HOME
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LENDING.
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c.
Name Here is BORROWER.
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It is therefore not clear who
BORROWER is and what it and/or they have to do with Your Name
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here.
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Pursuant to the Interest First NOTE, nowhere does it say that Your
d.
After careful review of the words,
“1. BORROWER’S PROMISE TO PAY
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In return for a loan that I have received, I promise to pay
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83,700.00 (this amount is called “Principal”), plus interest,
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U.S. $
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to the order of Lender, Lender is CORNERSTONE HOME
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LENDING it is clear that the words “In return for a loan that I have
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received,” were written in the past tense. Have received indicates
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that
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CORNERSTONE HOME LENDING $83,700.00 for some loan
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BORROWER received somewhere in the past, not necessarily from
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CORNERSTONE HOME LENDING.
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e.
BORROWER
(whoever
he
is),
is
agreeing
to
pay
Therefore, pursuant to the verbiage in the Interest First NOTE, I find
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no evidence that Your Name Here was ever lent the sum of
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$83,700.00 by CORNERSTONE HOME LENDING and therefore,
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could not be in default of any loan to CORNERSTONE HOME
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LENDING.
Affidavit of Cynthia Cantrell ● Page 6
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f.
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In addition, it is my opinion that since the Interest First NOTE has
the word (Seal) after the signature line on page 2, the Interest First
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NOTE MUST have a SEAL affixed or it is invalid.
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Furthermore, it is my opinion that since the invalid DEED OF
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TRUST has the word (Seal) after the signature line on page 14, the
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DEED OF TRUST MUST have a SEAL affixed or it is invalid.
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In American law "Signed, sealed and delivered" is still a
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requirement. Signed, your signature, sealed, your seal, delivered,
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received by the other party.
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Black's Sixth.
Seal. An impression upon wax, wafer, or some other tenacious
substance capable of being impressed. In current practice, a particular
sign (e.g. L.S.) or the word "seal" is made in lieu of an actual seal to
attest the execution of the instrument.
Private seal. The seal (however made) of a private person or
corporation, as distinguished from a seal employed by a state or
government or any of its bureaus or departments.
Public seal. A seal belonging to and used by one of the bureaus or
departments of government, for authenticating or attesting documents,
process, or records. An impression made of some device, by means of a
piece of metal or other hard substance, kept and used by public
authority. See also State seal.
Sealed. Authenticated by a seal; executed by the affixing of a seal.
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g.
After carefully reviewing the signature line on page 14 of the DEED OF
TRUST and page 2 of the Interest First NOTE the documents do not
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appear to have a seal.
Therefore, it is my opinion;
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The DEED OF TRUST and Interest First NOTE are both invalid and
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unenforceable documents.
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Affidavit of Cynthia Cantrell ● Page 7
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C.
ASSIGNMENT OF DEED OF TRUST: On April 22, 2010 an Assignment
of Deed of Trust was recorded at the Clark County Recorders Office,
(Clark County Nevada recorded document # ?????????????).
a.
The document was dated and notarized on April 21, 2010.
b.
Pursuant the document, “MERS” MORTGAGE ELECTRONIC
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REGISTRATION SYSTEMS, INC. appointed CITIMORTGAGE
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INC. as successor beneficiary of the DEED OF TRUST.
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c.
beneficial rights from CORNERSTONE HOME LENDING to
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MERS, and therefore believe none exists.
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d.
Without an Assignment of beneficial rights from CORNERSTONE
HOME LENDING to MERS, MERS had no standing in which to
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assign the DEED OF TRUST to CITIMORTGAGE INC.
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I was not provided an Assignment of Deed of Trust assigning the
e.
Furthermore, there have been a number of recent cases which have
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determined that MERS as a Nominee does not actually hold the
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Note. If MERS never held the NOTE, MERS could not have acted
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as a beneficiary of the NOTE, and appointed CITIMORTGAGE
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INC. as successor beneficiary of the Deed of Trust
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The United States Bankruptcy Court for the Eastern District
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of California has issued a ruling dated May 20, 2010 in the matter of
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In Re: Walker, Case No. 10-21656-E-11 which found that MERS
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could not, as a matter of law, have transferred the note to Citibank
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from the original lender, Bayrock Mortgage Corp. The Court’s
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opinion is headlined stating that MERS and Citibank are not the real
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parties in interest.
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The court found that MERS acted “only as a nominee” for
Bayrock under the Deed of Trust and there was no evidence that the
Affidavit of Cynthia Cantrell ● Page 8
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note was transferred. The opinion also provides that “several courts
have acknowledged that MERS is not the owner of the underlying
note and therefore could not transfer the note, the beneficial interest
in the deed of trust, or foreclose on the property secured by the
deed”, citing the well-known cases of In Re Vargas (California
Bankruptcy Court), Landmark v. Kesler (Kansas decision as to lack
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of authority of MERS), LaSalle Bank v. Lamy (New York), and In
Re Foreclosure Cases (the “Boyko” decision from Ohio Federal
Court).
The opinion states: “Since no evidence of MERS’ ownership
of the underlying note has been offered, and other courts have
concluded that MERS does not own the underlying notes, this court
is convinced that MERS had no interest it could transfer to Citibank.
Since MERS did not own the underlying note, it could not transfer
the beneficial interest of the Deed of Trust to another. Any attempt
to transfer the beneficial interest of a trust deed without ownership
of the underlying note is void under most state laws.”
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Furthermore, MERS own website states that they are not, and were
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not, the true beneficiary thereby nullifying the nomination to
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CITIMORTGAGE INC. See: Excerpt from the Mortgage Electronic
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Registration Systems, Inc. website:
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“Normally, where the name of the grantee under the Trustee’s Deed
upon Sale is different than the name of the foreclosing entity, the
Trustee’s Deed upon Sale states that the "Grantee was not the
foreclosing beneficiary." This designation triggers the imposition of
transfer taxes on the sale. It is important to note that in a MERS
foreclosure sale, even where the property
reverts, the name of the
grantee will be different than the name of the entity foreclosing.
Nonetheless, the Trustee’s Deed upon Sale should state that
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Affidavit of Cynthia Cantrell ● Page 9
"The Grantee was the foreclosing beneficiary." This is because
MERS merely holds title as nominee for the true beneficiary; it is
the true beneficiary that has actually foreclosed and acquired title”
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Therefore, it is my opinion:
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For all of the reasons stated above, the Assignment of Deed of Trust
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document is invalid, unenforceable and void. Even if an Assignment of
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Deed of Trust surfaces appointing MERS as the beneficiary, given the fact
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that MERS never held the Interest First NOTE, MERS could not have
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lawfully acted as a beneficiary of the Interest First NOTE, and appointed
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CITIMORTGAGE INC. as successor beneficiary of the DEED OF
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TRUST.
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Furthermore, since the DEED OF TRUST (Clark County Nevada
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recorded document # ??????????) is invalid, unenforceable and void, this
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Assignment of Deed of Trust would have no validity.
Therefore, this document should not be considered as a valid link in
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the chain of documents necessary to effectuate a foreclosure on Your
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Name Here’s real property.
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D.
SUBSTITUTION OF TRUSTEE: On April 22, 2010 a Substitution of
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Trustee was recorded at the Clark County Recorders Office, (Clark County
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Nevada recorded document #???????????????).
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a.
The document was dated and notarized on April 21, 2010.
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b.
Pursuant the document, beneficiary, CITIMORTGAGE INC.
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appointed CR Title Services, Inc. as Successor Trustee.
c.
Given the fact that the Assignment of Deed of Trust (Clark County
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Nevada recorded document # ???????????????) assigning beneficial
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rights to CITIMORTGAGE INC. is invalid, unenforceable and
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void, this Substitution of Trustee would have no validity. Therefore,
Affidavit of Cynthia Cantrell ● Page 10
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CITIMORTGAGE INC. did not have standing to appoint CR Title
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Services, Inc. as Successor Trustee.
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d.
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In addition, since the DEED OF TRUST (Clark County Nevada
recorded document # ??????????) is invalid, unenforceable and void,
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this Substitution of Trustee document would have no validity.
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Therefore, it is my opinion:
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For all of the reasons stated above, this document should not be
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considered as a valid link in the chain of documents necessary to effectuate
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a foreclosure on Your Name Here’s real property.
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E.
NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF
TRUST: On April 22, 2010 a Notice of Default and Election to Sell under
Deed of Trust (Notice of Default) was recorded at the Clark County
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Recorders Office, (Clark County Nevada recorded document
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# ??????????????????).
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a.
Pursuant to the document, CR Title Services, Inc., by FIRST
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AMERICAN TITLE INSURANCE CO. as agent recorded this
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document dated on April 21, 2010. The document was notarized on
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April 15, 2010 by Name of Notary.
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b.
Pursuant to the document, it was notarized 6 days before it was
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created on April 21, 2010. This appears to be a situation where the
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notary has notarized the document prior to the signer signing the
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document. Therefore, this document is evidence of a fraudulent
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notarization by to Name of Notary.
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c.
It is a felony to file false and/or forged documents in a public office
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in most states. Therefore, pursuant to the Notice of Default I have
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examined in this report, I believe, multiple felonies have occurred to
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unlawfully foreclose on Your Name Here’s real property.
Affidavit of Cynthia Cantrell ● Page 11
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d.
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The previous documents do not show any validity for CR Title
Services, Inc., by FIRST AMERICAN TITLE INSURANCE CO. as
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agent to file and/or represent anyone regarding this DEED OF
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TRUST/ Interest First NOTE.
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e.
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In addition, since the DEED OF TRUST (Clark County Nevada
recorded document # ??????????) is invalid, unenforceable and void,
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this Notice of Default document would have no validity.
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Therefore it is my opinion:
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For the reasons stated above, this Notice of Default document should
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not be considered as a valid link in the chain of documents necessary to
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effectuate a foreclosure on Your Name Here’s real property.
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E.
NOTICE OF TRUSTEE SALE: On July 23, 2010, a Notice of Trustee
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Sale was recorded at the Clark County Recorders Office, CR Title
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Services, Inc. (Clark County Nevada recorded document #
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??????????????).
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a.
The previous documents do not show any validity for CR Title
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Services, Inc. to file and/or represent anyone regarding this DEED
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OF TRUST/ Interest First NOTE.
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b.
of Default, it is my opinion the foreclosure process was not lawful.
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Given the fact that fraud occurred regarding the filing of the Notice
c.
Furthermore, since the DEED OF TRUST (Clark County Nevada
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recorded document # ??????????) is invalid, unenforceable and void,
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this Notice of Trustee Sale document would have no validity.
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Therefore, it is my opinion:
For all of the reasons stated above, the Notice of Trustee Sale
document is invalid, unenforceable and void thus it should not be
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Affidavit of Cynthia Cantrell ● Page 12
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considered as a valid link in the chain of documents necessary to effectuate
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a foreclosure on Your Name Here’s real property.
D.
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SUBSTITUTION OF TRUSTEE: On August 30, 2010 a Substitution of
Trustee was signed.
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a.
The document was dated and notarized on August 30, 2010.
b.
Pursuant the document, beneficiary, CITIMORTGAGE INC.
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appointed Five Star Service Corporation as Successor Trustee.
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c.
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Given the fact that the Assignment of Deed of Trust (Clark County
Nevada recorded document # ?????????????) assigning beneficial
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rights to CITIMORTGAGE INC. is invalid, unenforceable and
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void, this Substitution of Trustee would have no validity. Therefore,
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CITIMORTGAGE INC. did not have standing to appoint Five Star
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Service Corporation as Successor Trustee.
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d.
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In addition, since the DEED OF TRUST (Clark County Nevada
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recorded document # ??????????) is invalid, unenforceable and void,
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this Substitution of Trustee document would have no validity.
Therefore, it is my opinion:
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For all of the reasons stated above, this document should not be
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considered as a valid link in the chain of documents necessary to effectuate
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a foreclosure on Your Name Here’s real property.
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12.
Conclusion:
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My investigation indicates to me, that all of the foreclosure documents
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recorded in the Clark County Recorders Office (#??????????, #?????????????,
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#??????????, #??????????, #??????????) and the Substitution of Trustee dated August
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30, 2010) regarding Your Name Here’s real property are invalid for the reasons given
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above.
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Furthermore, it is a felony to file false and/or forged documents in a public
Affidavit of Cynthia Cantrell ● Page 13
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office in most states. Therefore, pursuant to the documents I have examined in this
report, I believe multiple felonies have occurred due to the unlawful foreclosure process
of Your Name Here’s real property.
Therefore, the Trustee’s Sale should be immediately cancelled and a cancellation
of Trustee Sale should be recorded by CR Title Services, Inc. post haste.
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FURTHER AFFIANT SAYETH NAUGHT.
Cynthia J. Cantrell
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SUBSCRIBED AND SWORN TO before me, the undersigned notary public, this
_____ day of September, 2010.
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Notary Public
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Affidavit of Cynthia Cantrell ● Page 14