Glaski vs Bank of America NA et al – FOR PUBLICATION

Glaski vs Bank of America NA et al – FOR PUBLICATION

By 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:

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THOMAS A. GLASKI,Plaintiff and Appellant,v.

BANK OF AMERICA, NATIONAL ASSOCIATION et al.

Defendants and Respondents.

F064556

(Super. Ct. No. 09CECG03601)

OPINION

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.

-ooOoo-

INTRODUCTION

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.

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California Appeals Court: Notice of Default is Void if Description of Default Includes “if any”

California Appeals Court: Notice of Default is Void if Description of Default Includes “if any”

By Daniel Edstrom
DTC Systems, Inc.

Thank you to HYDROGENE for this one. According to this decision, the “if any” in the following of a Notice of Default voids the document:

TOGETHER WITH LATE CHARGES AS SET FORTH IN SAID NOTE AND DEED OF TRUST, ADVANCES, ASSESSMENTS AND ATTORNEY’S FEES, IF ANY

UPDATE NOTE added 1/9/2012: The Supreme Court of California denied review of this case but ordered that the opinion be not officially published (See California Court–Rules 976, 977 and 979)

Excerpt (fairly long):

Validity Of Notice Of Default
EMC sought to exercise the power of sale in the Deed of Trust on Anolik’s home based on Anolik’s alleged breach of various obligations secured by the Deed of Trust. Anolik alleged in the fourth cause of action in his second amended complaint (for wrongful foreclosure) that “the events of default as alleged . . . in the Notice of Default . . . [we]re false and untrue” and that “the Notice of Default and Election to Sell [wa]s void” as a result.

The trial court concluded the Notice of Default “was proper and is not invalid or void.” Anolik contends the trial court erred in this conclusion. We agree. “The procedure for foreclosing on security by a trustee’s sale pursuant to a deed of trust is set forth in Civil Code section 2924 et seq.”5 (Miller v. Cote (1982) 127 Cal.App.3d 888, 894.) Because nonjudicial foreclosure is a “drastic sanction” and a “draconian remedy” (Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 Cal.App.3d 818, 827, 830), “[t]he statutory requirements must be strictly complied with.” (Miller, at p. 894.) Continue reading “California Appeals Court: Notice of Default is Void if Description of Default Includes “if any””

JP Morgan Chase and McCarthy & Holthus – Destroying America, One House at a Time

JP Morgan Chase and McCarthy & Holthus – Destroying America, One House at a Time

By Martin Andelman
Mandelman Matters
http://mandelman.ml-implode.com

Homeowner Suffers Horrific Injustice at the Hands of JPMorgan Chase

http://mandelman.ml-implode.com/2011/03/homeowner-suffers-horrific-injustice-at-the-hands-of-jpmorgan-chase

For over two years I’ve had a front row seat for the foreclosure crisis, the by-product of our government’s complete mishandling of the worst economic downturn in seventy years.

During that time I’ve been exposed to some pretty horrific things… people living in their cars with a child sleeping in the trunk… the eviction of an 89 year-old couple… I’ve gotten to know what that fear sounds like and feels like… the fear of losing one’s home while the country talks about you as being nothing more than an “irresponsible borrower,” someone who never should have bought your home in the first place, even though you may have lived in it for 30 years.

What I saw this past week, however, was something new for me… I’d heard of things like this happening before, written about them, even. But, I had never seen anything like it, up close and personal.

As a warning… this story is not for the squeamish. If you’re pregnant, or have heart disease, or just want to go on pretending that your country is still a place of which you’re proud… it’s better that you click off now… because this one isn’t going to make you laugh.

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Failure to Allege Lack of Default

Failure to Allege Lack of Default

by Daniel Edstrom
DTC Systems, Inc.

I came across the following on Google Scholar (http://scholar.google.com/scholar_case?case=16055101289176414591&q=Restatement+(Third)+Of+Property+(Mortgages)+%C2%A7+5.4&hl=en&as_sdt=2,5):

A. Failure to Allege Lack of Default

First, Nevada law is clear that “[a]n action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor or trustor’s part which would have authorized the foreclosure or exercise of the power of sale.” Ernestburg v. Mortgage Investors Group, No. 2:08-cv-01304-RCJ-RJJ, 2009 WL 160241, at *6 (D. Nev. Jan. 22, 2009) (internal citations and quotations omitted). The plaintiff must establish that they were not “in default when the power of sale was exercised.” Id. (citing Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983)). Furthermore, a claim for wrongful foreclosure does not arise until the power of sale is exercised. Collins, 662 P.2d at 623.

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The Wrong Remedy at the Wrong Time, Part 1

The Wrong Remedy at the Wrong Time, Part 1

By Daniel Edstrom
DTC Systems, Inc.

New Note added on 1/22/2012 thanks to Simonee. California Probate Code does not seem to apply based on this California Supreme Court decision: Monterey S.P. Partnership v. W. L. Bangham, Inc. (1989) 49 Cal.3d 454 , 261 Cal.Rptr. 587; 777 P.2d 623 (download here: http://dtc-systems.net/wp-content/uploads/2012/01/Monterey_SP_Partnership_vs_WL_Bangham.pdf)

Monterey S.P. Partnership v. W. L. Bangham, Inc. (1989) 49 Cal.3d 454 , 261 Cal.Rptr. 587; 777 P.2d 623

Here is a quick overview of what happens in a non-judicial foreclosure. If you are in a judicial state, this post does not apply directly to your case. But if you understand what happens in a non-judicial foreclosure, you may get insight into what might apply to your case.

I am not indicating that any of these documents are true or accurate, just that this is what typically happens.

Closing the Transaction

The homeowner executes a note and security instrument (i.e. Deed of Trust). The parties to the trust created by the Deed of Trust are the trustor (homeowner), trustee (usually a title company) and the beneficiary (either MERS or the named lender). Everyone seems to assume that the trust was constituted (created), that it is valid and continuing. This is where the trouble begins (not really, but for this article we will assume it begins here and not before).

Notice of Default

Supposedly the Notice of Default is recorded and sent to the homeowner by the agent for the beneficiary. Who is the beneficiary? Looking at my notice of default the only beneficiary mentioned is MERS. However, other documents sent usually point to one or more other parties who “might” be a beneficiary.

Continue reading “The Wrong Remedy at the Wrong Time, Part 1”