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:

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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Glaski Decision in California Appellate Court Turns the Corner on “Getting It”

Neil_GarfieldGlaski Decision in California Appellate Court Turns the Corner on “Getting It”

By Daniel Edstrom
DTC Systems, Inc.

The following article was posted by Neil F. Garfield of livinglies.wordpress.com and comes from the following URL: http://livinglies.wordpress.com/2013/08/02/glaski-decision-in-california-appellate-court-turns-the-corner-on-getting-it/

On the other hand we should not assume that they have arrived nor that this decision will have pervasive effects throughout California or elsewhere in the United States or other countries.

J.P. Morgan did suffer a crushing defeat in this decision. And the borrower definitely receive the benefits of a judicial decision that will allow the borrower to sue for wrongful foreclosure including equitable and legal relief which in plain language means reversing the foreclosure and getting damages. Probably one of the most damaging conclusions by the appellate court is that an examination of whether the loan ever made it into the asset pool is proper in determining the proper party to initiate a foreclosure or to offer a credit bid at a foreclosure auction.  The court said that alleged transfers into the trust after the cutoff date are void under New York State law which is the law that governs the common-law trusts created by the banks as part of the fraudulent securitization scheme.

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T.D. Service Company Auctions Property for $22k instead of $220k – CA Appeals Court Quiets Title to Bidder

T.D. Service Company Auctions Property for $22k instead of $220k – CA Appeals Court Quiets Title to Bidder

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Charles Cox for this one.

Excerpts

Plaintiff David Biancalana successfully bid on a piece of real property at a trustee’s sale. Defendant trustee T.D. Service Company (TD) subsequently discovered it had erroneously conveyed the delinquency amount ($21,894.17) to the auctioneer, instead of the correct opening credit bid of $219,105 submitted by the beneficiary to TD. TD informed Biancalana of the error, declined to issue a trustee’s deed on sale and returned his cashier’s check. Biancalana retendered the check to TD and demanded it issue the trustee’s deed. When it failed to do so, he sued for quiet title, specific performance, declaratory and injunctive relief.

TD’s motion for summary judgment was initially denied. After TD successfully moved for reconsideration on the grounds of “new law,” the trial court granted TD’s motion and entered judgment in its favor.

On appeal, Biancalana argues that the trial court erred in granting TD’s motion for summary judgment as there was no irregularity in the foreclosure sale process. Biancalana also argues that the trial court erred in granting TD’s motion for reconsideration as the case it determined constituted “new law”( i.e., Millennium Rock Mortgage, Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804 (Millennium Rock)) did not represent a change in the law, but simply applied existing law to a new fact pattern.

We agree that the trial court erred in granting TD’s motion for summary judgment and shall reverse the judgment.

 

Download the ruling here:  http://dtc-systems.net/wp-content/uploads/2012/05/Biancalana_v_TD_Service-For_Publication.pdf

 

Securitization Workshop for Attorneys March 19th 2011 in San Francisco

Securitization Workshop for Attorneys March 19th 2011 in San Francisco

By Daniel Edstrom

Join us for our 3rd Securitization Workshop for Attorneys being held in San Francisco on March 19th, 2011.  Visit the event website for more information: http://securedocumentresearch.eventbrite.com

This workshop has been approved for Minimum Continuing Legal Education (MCLE) by the State Bar of California.  Total credit hours approved are 6.75 hours.

Description of event:

SECURITIZATION WORKSHOP FOR ATTORNEYS
March 19th, 2011 – in San Francisco, CALIFORNIA

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Securitization Workshop for Attorneys January 29th 2011 in Los Angeles

Securitization Workshop for Attorneys January 29th 2011 in Los Angeles

By Daniel Edstrom

Join us for our 2nd Securitization Workshop for Attorneys being held in Los Angeles on January 29th, 2011.  Visit the event webiste for more information: http://securedocumentresearch.eventbrite.com and visit our product page for a super early registration price if you sign up by December 31, 2010: http://dtc-systems.net/products/securitization-workshop-attorneys-los-angeles-ca-january-29th-2011/

Description of event:

SECURITIZATION WORKSHOP FOR ATTORNEYS
 January 29th, 2010 – in Los Angeles, CALIFORNIA

 [Location will be determined soon]

SECURE DOCUMENT RESEARCH

Auburn, CA 95603; ph: 530.888.9600

DTC Systems, Inc.

[email protected]://www.dtc-systems.net

 Presented by:

Secure Document Research and DTC Systems, Inc.in Association with the Garfield Continuum and Neil F. Garfield, Esq.
http://livinglies.wordpress.com
REGISTER EARLY, LIMITED SEATING IS AVAILABLE

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