Glaski vs Bank of America NA et al – FOR PUBLICATION

Glaski vs Bank of America NA et al – FOR PUBLICATION

Edstrom_MortgageSecuritization_POSTER_17_x_22_v4_1By Daniel Edstrom
DTC Systems, Inc.

On August 8, 2013 the Fifth Appellate District in the Court of Appeal of the State of California ordered the Thomas A. Glaski vs Bank of America, NA et al decision published, stating:



As the nonpublished opinion filed on July 31, 2013, in the above entitled matter hereby meets the standards for publication specified in the California Rules of Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official Reports.

Based on the importance of this case, the text of the July 31, 2013 ruling is listed verbatim:



THOMAS A. GLASKI,Plaintiff and Appellant,v.


Defendants and Respondents.


(Super. Ct. No. 09CECG03601)



APPEAL from a judgment of the Superior Court of Fresno County.  Alan M. Simpson, Judge.

Law Offices of Richard L. Antognini and Richard L. Antognini; Law Offices of Catarina M. Benitez and Catarina M. Benitez, for Plaintiff and Appellant.

AlvaradoSmith, Theodore E. Bacon, and Mikel A. Glavinovich, for Defendants and Respondents.



            Before Washington Mutual Bank, FA (WaMu) was seized by federal banking regulators in 2008, it made many residential real estate loans and used those loans as collateral for mortgage-backed securities.[1]  Many of the loans went into default, which led to nonjudicial foreclosure proceedings.  Some of the foreclosures generated lawsuits, which raised a wide variety of claims.  The allegations that the instant case shares with some of the other lawsuits are that (1) documents related to the foreclosure contained forged signatures of Deborah Brignac and (2) the foreclosing entity was not the true owner of the loan because its chain of ownership had been broken by a defective transfer of the loan to the securitized trust established for the mortgage-backed securities.  Here, the specific defect alleged is that the attempted transfers were made after the closing date of the securitized trust holding the pooled mortgages and therefore the transfers were ineffective.

In this appeal, the borrower contends the trial court erred by sustaining defendants’ demurrer as to all of his causes of action attacking the nonjudicial foreclosure.  We conclude that, although the borrower’s allegations are somewhat confusing and may contain contradictions, he nonetheless has stated a wrongful foreclosure claim under the lenient standards applied to demurrers.  We conclude that a borrower may challenge the securitized trust’s chain of ownership by alleging the attempts to transfer the deed of trust to the securitized trust (which was formed under New York law) occurred after the trust’s closing date.  Transfers that violate the terms of the trust instrument are void under New York trust law, and borrowers have standing to challenge void assignments of their loans even though they are not a party to, or a third party beneficiary of, the assignment agreement.

We therefore reverse the judgment of dismissal and remand for further proceedings.

Continue reading “Glaski vs Bank of America NA et al – FOR PUBLICATION”

Lona vs Citibank: Decision from Court of Appeals of California

Edstrom_MortgageSecuritization_POSTER_17_x_22_v4_1Lona vs Citibank: Decision from Court of Appeals of California

By Daniel Edstrom
DTC Systems, Inc.

Here is this summary judgment reversal from an original ruling against a homeowner.   Download the PDF at the end.


JONAS Z. LONA, Plaintiff and Appellant,


CITIBANK, N.A., as Trustee, etc. et al., Defendants and Respondents. 

No. H036140.

Court of Appeals of California, Sixth District.

Filed December 21, 2011.

Law Office of Adlore V. Clarambeau, Adlore V. Clarambeau, Attorneys for Appellant Jonas Z. Lona.

Alvarado Smith, John M. Sorich, S. Christopher Yoo, Geoffrey C. Brethen, Attorneys for Respondent Citibank, N.A.



Responding to a mortgage broker’s “marketing enticement,” a homeowner agreed in January 2007 to refinance his home for $1.5 million. With a monthly income of only $3,333, the homeowner quickly fell behind in his monthly payments of $12,381.36. In August 2008, the home was sold at a nonjudicial foreclosure sale. The homeowner filed an action against the lender, the loan servicer, and others to set aside the trustee’s sale claiming that he was a victim of predatory lending. He claimed the transaction was invalid because the loan broker ignored his inability to repay the loan, and, as a person with limited English fluency, little education, and modest income, he did not understand many of the details of the transaction which was conducted entirely in English.

In response to the homeowner’s claim, the lender and the loan servicer moved for summary judgment, arguing: that the homeowner had failed to tender the amounts due on the loans, which was required to set aside the sale; that none of the exceptions to the tender requirement applied; and that the homeowner voluntarily entered into the loan agreements and was personally responsible for the loss of his home. The trial court granted summary judgment to the lender and loan servicer.

We will reverse the summary judgment. In doing so, we define the elements of an equitable cause of action to set aside a foreclosure sale and exceptions to the requirement that the borrower tender any amounts due under the loan. We hold that summary judgment was improper because: the homeowner presented sufficient evidence of triable issues of material fact with regard to the alleged unconscionability of the transaction; and the motion did not address a pertinent exception to the tender requirement, which the homeowner had raised in his complaint. Continue reading “Lona vs Citibank: Decision from Court of Appeals of California”

How to Get a Full Accounting in California

Edstrom_MortgageSecuritization_POSTER_17_x_22_v4_1How to Get a Full Accounting in California

By Daniel Edstrom
DTC Systems, Inc.

Here is an appeals court case showing how to plead a cause of action for an accounting.  In the securitization of residential loans, this issue is frequently discussed, but I have never seen it brought in a lawsuit.  This appeals court case is certified for publication and was filed on April 22, 2009.


A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.  (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 460, 39 P.2d 877;  5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 819, p. 236.)

An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.  (St. James Church of Christ Holiness v. Superior Court (1955) 135 Cal.App.2d 352, 359, 287 P.2d 387.)   A plaintiff need not state facts that are peculiarly within the knowledge of the opposing party.  (Brea v. McGlashan, supra, 3 Cal.App.2d at p. 460, 39 P.2d 877.)

Full Ruling: