Securitization Audits Worthless in Spite of Glaski

I have compiled an array of articles dealing with the California 5th District Court of Appeals RED HERRING case known as “Glaski.”  I refer to it as a red herring because foreclosure defense buffs love delaying foreclosure proceedings using securitization arguments that ALWAYS ULTIMATELY FAIL to save the house from foreclosure.  Glaski lost the house to California’s non-judicial foreclosure process for failing to make timely mortgage payments.  He sued and the trial court ruled against him.  He appealed and the appellate panel ruled that the foreclosure lacked validity because the owner of the note never received ownership of it because the assignment to the trustee lacked validity for occurring after the closing date named in the Pooling and Servicing agreement, according to New York state law.

Securitization auditors went wild with glee because that meant their expensive, worthless audits now had value.  However anyone with common sense knows what happens.  The party with the note finds a way to get proper ownership of it and forecloses anyway, and the borrower loses the house anyway.

Well, other California and Federal courts had more sense than the 5th District panel, and they gave the ruling short shrift as they opined that the borrower is not a party to the assignment of the note nor to the Pooling and Servicing Agreement, and has no standing to challenge or enforce either one in court.

So now securitization auditors slide back into their funk, and continue on selling their scam audits to hopeful foreclosure victims who don’t know any better.

Bottom line, NOBODY EVER SAVED A HOUSE FROM FORECLOSURE WITH A SECURITIZATION AUDIT.

I go on to repeat tirelessly that only one thing beats the bank and its associates in mortgage issues:  MORTGAGE ATTACK.  You can read about it elsewhere on http://mortgageattack.com.

 

Why the Glaski Foreclosure Reversal Means NOTHING and Charles Cox Got It Wrong


Law Strategist Proves Glaski Panel & Charles Cox Wrong
19 October 2013 by Bob Hurt. Distribute freely.

Last week DeadlyClear.com published the comments and letter from California paralegal Charles Cox to the California Supreme Court asking it to publish the Glaski opinion which banks don’t want published. In Glaski, the CA 5th District Court overturned a foreclosure because the plaintiff lacked standing because the Depositor indorsed the note in blank to the Trustee of AFTER the closing date of the trust in violation of the Pooling and Servicing agreement. The court claimed the assignment lacked validity under New York trust law, apparently ignoring the PSA’s establishment under Delaware trust law. Banks want the opinion depublished because it could motivate lower courts to halt foreclosures because of violations of the PSA under trust law in other states. See the Court’s Glaski opinion here:

http://www.courts.ca.gov/opinions/documents/F064556.PDF

I have argued that the Plaintiff had these practical choices:

  1. appeal the obviously bad decision, or
  2. correct the standing problem and redo the foreclosure.

I figure choice 2 would cost less, but the appeal would do the legal community more good by using the California Supreme Court to clear up this nonsense. Either way, Glaski gets to keep the house a while longer, eventually losing it to foreclosure sale. I wrote to Glaski, suggesting Glaski get the mortgage examined comprehensively by a competent professional so as to find proof that the lender cheated Glaski from the beginning. I received no reply to my letter. Clearly, Glaski has drunk the Kool-Aid of useless foreclosure-defenses and securitization-audits that merely postpone the inevitable.

I present below the text from DeadlyClear including Charles Cox’s letter, and follow it with a commentary by premier litigation strategist Storm Bradford which proves the nonsense of Cox’s position.

Why Charles Cox Agrees with the Glaski Panel

http://deadlyclear.wordpress.com/2013/10/10/high-priced-attorneys-dont-necessarily-buy-truth/

The GLASKI opinion has made the Wall Street banking industry crazy. There was an outcry for publication of this case as it allowed homeowners to challenge fabricated assignments. The Court agreed to publish the opinion.
The securitization case was briefed and argued as a New York law trust case when in fact it was actually a Delaware trust. While the outcome may have likely been the same, the Court’s opinion was based upon New York Trust Law. Thereafter, the banks (that it appears failed to raise these issues during or after the hearings) wanted the opinion to be de-certified for publication.
Apparently, no one realized that the WaMu Mortgage Pass-­Through Certificates Series 2005-­AR17 Trust was a Delaware trust. Frankly, it is hard to believe that anybody even bothered to read the PSA. As a seasoned researcher, right after you verify the Closing Date, the next stop is usually Article II – Conveyances of Mortgages and then you go to Governing Law. The first full paragraph of Section 2.01. Creation of the Trust reads:

LaSalle Bank National Association is hereby appointed as the trustee of the Trust, to have all the rights, duties and obligations of the Trustee with respect to the Trust expressly set forth hereunder, and LaSalle Bank National Association hereby accepts such appointment and the trust created hereby. Christiana Bank & Trust Company is hereby appointed as the Delaware trustee of the Trust, to have all the rights, duties and obligations of theDelaware Trustee with respect to the Trust hereunder, and Christiana Bank & Trust Company hereby accepts such appointment and the trust created hereby. It is the intention of the Company, the Servicer, the Trustee and theDelaware Trusteethat the Trust constitute a statutory trust under the Statutory Trust Statute, that this Agreement constitute the governing instrument of the Trust, and that this Agreement amend and restate the Original Trust Agreement. The parties hereto acknowledge and agree that, prior to the execution and delivery hereof, the Delaware Trustee has filed the Certificate of Trust. [emphasis added]

C’mon guys – Delaware Trustee is mentioned 4 times in one paragraph. Nevertheless, the point that the Court was making was that challenge to the assignment by the homeowner should be permitted and even though New York Trust Law was used in the decision, had Delaware trust law been on the table the Court may have reached the same conclusion as Delaware trust law appears even more stringent.
What is amazing is that the banks attorneys tried to use correspondence to re-argue the case and made some disingenuous statements in order to ultimately requestdepublication of Glaski v. Bank of America, N.A. The depublication rules allow for any person to argue why an opinion should not be published.
While the banks hired their flashy high-priced attorneys to make their depublication requests, it has caused several excellent letters to be written in support of maintaining the publication that the public originally requested to be published.
Michael T. Pines’ letter can be found on Stopforeclosurefraud.com Letter to CA Supreme Court from Michael T. Pines in Response and Opposition to the Requests to Depublish Glaski v. Bank of America N.A. Opinion. ”I am writing in opposition to the request by Deutsche Bank National Trust Company’s request to depublish in the above matter. I will only address one issue – the wrongful conduct of counsel seeking depublication,” writes Pines and continues, “A problem with the securitization of loans, is that the banks and their attorneys, that were, and are, involved in securitization serve no one but their own interests. They have violated countless laws. There are of course countless government and private cases pending regarding such. There are government actions, including criminal investigations against foreclosure law firms.”
Charles Cox, a California Contract Paralegal penned another brilliant letter to the Court [Click HERE for PDF version]:

October 11, 2013
Chief Justice Tani G. Cantil-Sakauye
and Associate Justices
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102-4797
Re: Glaski v. Bank of America, National Association et al.
Supreme Court Case No. 5213814;
Appellate Case No. F064556, Disposition Date 07/31/2013;
Trial Court Case No. 09CECG03601

CORRECTED RESPONSE AND OPPOSITION TO REQUEST FORDEPUBLICATION
Dear Justices of the Supreme Court:
Pursuant to California Rules of Court (“CRC”), Rule 8.1125(b) et seq., the undersigned
writes to respectfully and timely oppose and object to the requests to depublish the published opinion of the appellate court for the above referenced case by providing the following corrected response.
STATEMENT OF INTEREST AND INTRODUCTION
The undersigned’s interest in this response to the depublication request, relates to clients served in the undersigned’s practice as a California Bus & Prof. Code qualified paralegal which consists of working on these types of cases with attorneys on a regular basis. We represent many clients who will be affected by this currently citable appellate court Opinion with some cases having already cited Glaski as applicable authority.
The clarity the appellate court provided in its well-reasoned Opinion was qualified for
publication, certified for publication and accordingly, was rightfully published. The undersigned respectfully requests that the 
Glaski appellate court Opinion not be upset for the following additional reasons.
THE DEPUBLICATION REQUEST PROCESS IS NOT A FORUM TO RE-TRY THECASE A DEPUBLICATION REQUEST SHOULD ONLY BE UTILIZED TO CONFIRMTHAT THE APPELLATE COURT’S OPINION MET THE STANDARD FORPUBLICATION1
The depublication process should not be used as a forum to re-try the case. Supreme
Court review was an available option to the defendants but no petition was filed.
Justice Joseph R. Grodin wrote in 1984 confirming earlier explanations by the late Chief
Justice Donald R. Wright 2 and then Chief Justice Rose Elizabeth Bird,3 that depublication is only ordered because the majority of the justices consider the opinion to be wrong in some significant way, such that it would mislead the bench and bar if it remained citable as precedent.4 Such is not the case here.
The appellate court had no choice but to assume the purported “Trust” was formed under New York Trust Laws because Plaintiff claimed it was and the defendants failed to refute or object to this stated fact in the instant case. The law under which the trust was purportedly formed does not change the general concept the appellate court established, that assets are prohibited from entering a trust after the trust closing-date. This is in order to mitigate tax liability and the potential of losing the trust’s tax exempt status by utilizing the restrictive requirements required to maintain limited liability for the trust as a pass through entity.
Regardless of whether or not organized under New York Trust Laws, it was still a Real
Estate Mortgage Investment Conduit (“REMIC”) trust where I.R.S. Code § 860 et seq., and Delaware Code, Title 12, Chapters 35 and 38 et seq., each provides similar if not more comprehensive requirements related to the actual purpose of the trust; for instance:
Every direct or indirect assignment, or act having the effect of an assignment,whether voluntary or involuntary, by a beneficiary of a trust of the beneficiary’s interest in the trust or the trust property or the income or other distribution therefrom that is unassignable by the terms of the instrument that creates or defines the trust is void.”5
Statements in the requests for depublication that Delaware Statutes provide no
comparable provision that would render a belated assignment to a trust void is simply untrue.
The appellate justices’ Opinion was sound, applicable and well-reasoned. Defendants’ Petition for Rehearing was rightfully denied and the numerous requests for publication were properly considered and the case was certified for publication.
THE APPELLATE COURT’S OPINION MET THE STANDARDS
FOR CERTIFICATION AND PUBLICATION
The appellate court’s Opinion met the standard for certification and publication as
authorized by Cal. Rules of Court, Rule 8.1105(c) which provides that an opinion of a court of appeal or a superior court appellate division – whether it affirms or reverses a trial court order or judgment – should be certified for publication in the Official Reports if the opinion:
(1) Establishes a new rule of law;
(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
(5) Addresses or creates an apparent conflict in the law;
(6) Involves a legal issue of continuing public interest;
(7) Makes a significant contribution to legal literature by reviewing either the
development of a common law rule or the legislative or judicial history of a provision
of a constitution, statute, or other written law;
(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and
publication of the majority and separate opinions would make a significant
contribution to the development of the law.
The undersigned contends the appellate court’s well-reasoned Opinion was published on the grounds of sub-sections 2, 3, 5, 6, and 8 referenced above and more specifically related to Sections III. sub-sections A-H and Section IV. sub-section B of the appellate court’s Opinion. 6
Section III.A. The appellate court’s Opinion clarifies securitization issues related to the lack of transfer of the deed of trust into securitized trusts after the closing date, which was deemed not acceptable due to the controlling “pooling and servicing agreement” and statutory requirements applicable to REMIC trusts, which is further clarified in FN 12 of the opinion? This meets the standard for publication per CRC, Rules 8.1105(c)(3), (5), (6) and (8).
Section III.B. Clarifies previous issues and opinions related to wrongful foreclosure by a nonholder of the deed of trust; or when a party alleged not to be the true beneficiary, instructs the trustee to file a Notice of Default and initiate nonjudicial foreclosure which conflicts with other holdings; adopts more applicable holdings and further clarifies that a plaintiff must allege facts that show the defendant who invoked the power of sale was not the true beneficiary. This meets the standard for publication per CRC, Rules 8.1105(c) (3), (5), (6) and (8).
Section III. C. This is an important opinion not previously held by other courts clarifying the question of whether the purported assignment was void, not dependent on whether the borrower was a party to, or third party beneficiary of the assignment agreement. This meets the standard for publication per CRC, Rules 8.1105(c)(2), (3), (5), (6) and (8).
Section lII.E. This section distinguishes the Gomes 8 case which seems to be universally utilized by other courts and defendant attorneys in California whether the application applies to the actual facts of the case at bar or not. Of particular note is the appellate court’s interpretation allowing borrowers to pursue questions regarding the chain of ownership and consolidation with the Herrera 9 case as opposed to Gomes which applies to not only Glaski but many other cases. The Opinion of the appellate court clarifies important characteristics authorized by the standards for publication per CRC, Rules 8.1105(c)(3), (5), (6) and (8).
Section III.F. Banks raise failure to tender as a defense in virtually every case whether applicable or not. The Glaski opinion correctly holds that tender is not required where the foreclosure sale is void, rather than voidable which meets the standard for publication per CRC, Rules 8.1105(c)(3), (5), (6) and (8).
GLASKI WAS CORRECTLY DECIDED
Whether Glaski was a party or third-party beneficiary to the purported securitized trust agreement or Pooling and Servicing Agreement (“PSA”) is irrelevant. The PSA itself did NOT allow transfer into the purported trust AFTER the closing-date whether the borrower invokes standing to challenge assignment into the trust or not. The same holds true whether or not the borrower was a party or third-party beneficiary of the PSA. The appellate court ruled that such a transfer after the closing-date was not allowed as it would violate the purpose of the securitized trust as a REMIC as further addressed herein.
Professor Adam Levitin 10 of Georgetown Law School states the following, regarding the view (as expressed in the requests for depublication) that a homeowner has no standing to challenge assignments into a trust because of not being a party to the PSA:

I think that view is plain wrong. It fails to understand what PSA-based foreclosure defenses are about and to recognize a pair of real and cognizable Article III interests of homeowners: the right to be protected against duplicative claims and the right to litigate against the real party in interest because of settlement incentives and abilities.

The homeowner is obviously not party to the securitization contracts like the PSA (query, though whether securitization gives rise to a tortious interference with the mortgage contract claim because of PSA modification limitations•••). This means that the homeowner can’t enforce the terms of the PSA. The homeowner can’t prosecute putbacks and the like. But there’s a major difference between claiming that sort of right under a PSA and pointing to noncompliance with the PSA as evidence that the foreclosing party doesn’t have standing (and afterIbanez, it’s just incomprehensible to me how this sort of decision could be coming out of the 1st Circuit BAP with a MA mortgage).

Let me put it another way. Homeowners are not complaining about breaches of the PSA for the purposes of enforcing the PSA contract. They are pointing to breaches of the PSA as evidence that the loan was not transferred to the securitization trust. The PSA is being invoked because it is the document that purports to transfer the mortgage to the trust. Adherence to the PSA determines whether there was a transfer effected or not because under NY trust law (which governs most PSAs), a transfer not in compliance with a trust’s documents is void. And if there isn’t a valid transfer, there’s no standing. This is simply a factual question-does the trust own the loan or not? (Or in UCC terms, is the trust a “party entitled to enforce the note”-query whether enforcement rights in the note also mean enforcement rights in the mortgage•••) If not, then it lacks standing to foreclosure.

It’s important to understand that this is not an attempt to invoke investors’ rights under a PSA. One can see this by considering the other PSA violations that homeowners are not invoking because they have no bearing whatsoever on the validity of the transfer, and thus on standing. For example, if a servicer has been violating servicing standards under the PSA, that’s not a foreclosure defense, although it’s a breach of contract with the trust (and thus the MBS investors). If the trust doesn’t own the loan because the transfer was never properly done, however, that’s a very different thing than trying to invoke rights under the PSA.

I would have thought it rather obvious that a homeowner could argue that the foreclosing party isn’t the mortgagee and that the lack of a proper transfer of the mortgage to the foreclosing party would be evidence of that point. But some courts aren’t understanding this critical distinction. Even if courts don’t buy this distinction, there are at least two good theories under which a homeowner should have the ability to challenge the foreclosing party’s standing. Both of these theories point to a cognizable interest of the homeowner that is being harmed, and thus Article III standing. First, there is the possibility of duplicative claims. This is unlikely, although with the presence of warehouse fraud (Taylor Bean and Colonial Bank, eg), it can hardly be discounted as an impossibility. The same mortgage loan might have been sold multiple times by the same lender as part of a warehouse fraud. That could conceivably result in multiple claimants. The homeowner should only have to pay once. Similarly, if the loan wasn’t properly securitized, then the depositor or seller could claim the loan as its property. Again, potentially multiple claimants, but the homeowner should only have to pay one satisfaction.

Consider a case in which Bank A securitized a bunch of loans, but did not do the transfers properly. Bank A ends up in FDIC receivership. FDIC could claim those loans as property of Bank A, leaving the securitization trust with an unsecured claim for a refund of the money it paid Bank A. Indeed, I’d urge Harvey Miller to be looking at this as a way to claw back a lot of money into the Lehman estate.

Second. the homeowner had a real interest in dealing with the right plaintiff because different plaintiffs have different incentives and ability to settle. We’d rather see negotiated outcomes than foreclosures, but servicers and trustees have very different incentives and ability to settle than banks that hold loans in portfolio. PSA terms, liquidity, capital requirements, credit risk exposure, and compensation differ between services/trustees and portfolio lenders. If the loans weren’t properly transferred via the securitization, then they are still held in portfolio by someone. This means homeowners have a strong interest in litigating against the real party in interest.11

CONCLUSION

The arguments proffered supporting depublication are nothing more than meritless
attempts to re-argue the 
Glaski case. The appellate court’s Opinion was well-reasoned and correctly decided. The appellate court’s opinion promotes the requirement that in order to foreclose on an owner’s property, the foreclosing entity must have obtained standing to foreclose properly, not based on a void assignment in contravention of the foreclosing entity’s controlling documents. In this case an assignment into a securitized trust after the closing-date of the trust has been properly deemed invalid and void by the appellate court.
For the foregoing reasons and on behalf of clients and persons this case affects, the undersigned respectfully request this Honorable Court NOT depublish the above referenced appellate court Opinion due to the importance that the continued ability to cite this well reasoned Opinion has provided and will continue to provide in the future.
Sincerely,
[Charles Cox Signature]

  1. 1 See Joseph R. Grodin, The Depublication Practice o/the California Supreme Court, 72 Cal. L. Rev. 514, 514 n.1 (1984).
  2. See Julie H. Biggs, Note 8. at 1185 n.20, Decertification of Appellate Opinions: The Need for Articulated Judicial Reasoning and Certain Precedent in California Law, 50 S. Cal. L. Rev. 1181, 1200 (1977) quoting Chief Justice Wright.
  3. In Justice Bird’s address at the State Bar Convention in San Francisco, CA Sept. 10, 1978, in Report, LA. Daily J., Oct. 6, 1978, at 4, 8, speaking of depublished opinions as ones “with which the court does not agree” and as “erroneous ruling[s]“.
  4. Grodin, supra, note 7, at 514-15.
  5. Delaware Decedents’ Estates and Fiduciary Relations, Chapter 35, Trusts, Subchapter III. General Provisions § 3536.
  6. The “Section” stated herein and below, relate to the applicable Sections of the appellate court’s Opinion.
  7. This allegation comports with the following view of pooling and servicing agreements and the federal tax code provisions applicable to REMIC trusts. “Once the bundled mortgages are given to a depositor, the [pooling and servicing agreement] and IRS tax code provisions require that the mortgages be transferred to the trust within a certain time frame, usually ninety dates from the date the trust is created. After such time, the trust closes and any subsequent transfers are invalid. The reason for this is purely economic for the trust. If the mortgages are properly transferred within the ninety-day open period, and then the trust properly closes, the trust is allowed to maintain REMIC tax status.” (Deconstrueting Securitized Trusts, supra, 41 Stetson L.Rev. at pp. 757-758.)” Glaski, supra fn 12.
  8. Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149.
  9. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366. 
  10. See: http://www.law.georgetown.edu/faculty/levitin-adam-j.cfm.
  11. http://www.creditslips.arg/creditslips/2011/07/standing-ta-challenge-standing.html

Why the Glaski Panel Was DEAD Wrong

Even assuming, as Glaski insisted, that New York law governs interpretation of the PSA, which it did not because the PSA was under Delaware law, and further assuming that the transfer of Glaskis’ loan to the Trust violated the terms of the PSA, that after-the-deadline transactions would merely bevoidable at the election of one or more of the parties—not void as Glaski and the illiterates would have everyone believe. Consequently, Glaski, was not a party to the PSA, and did not have standing to challenge it.
This concurs with time-honored principles of contract law. A void contract is “invalid or unlawful from its inception” and therefore cannot be enforced. 17A C.J.S. Contracts § 169. Thus, a mortgagor who was not a party to an assignment between mortgagees may nevertheless challenge the enforcement of a void assignment. A voidable contract, on the other hand, “is one where one or more of the parties have the power, by the manifestation of an election to do so, to avoid the legal relations created by the contract.” Id. Therefore, only one who was a party to a voidable contract has standing to challenge it.
It is true that New York Estate Powers & Trusts Law § 7-2.4 states: “every act in contravention of the Trust is void.” New York case law, however, makes clear “that section 7-2.4 is not applied literally in New York.”Bank of Am. Nat’l Ass’n v. Bassman FBT, LLC, 366 Ill. Dec. 936981 N.E.2d 1 (Ill. App. Ct. 2012). Instead, New York courts have held that a beneficiary can ratify a trustee’s ultra vires act. See, e.g., Mooney v. Madden, 597 N.Y.S.2d 775 (N.Y. App. 1993) (holding that trustee may bind trust to an otherwise invalid act or agreement that is outside scope of trustee’s power when beneficiary or beneficiaries consent or ratify trustee’s ultra vires act or agreement); Matter of Estate of Janes, 630 N.Y.S.2d 472, 477 (Sur. 1995), aff’d as modified sub nom. Matter of Janes, 643 N.Y.S.2d 972 (N.Y. App. Div. 1996), aff’d sub nom. Matter of Estate of Janes, 90 N.Y.2d 41 (N.Y. 1997)(acknowledging that a beneficiary may ratify a trustee’s ultra vires act if “the ratification was done with knowledge of material facts”); Leasing Serv. Corp. v. Vita Italian Restaurant, 566 N.Y.S.2d 796, 797-98 (N.Y. App. Div. 1991) (“It is hornbook law that a contract entered into by . . . an unauthorized agent, corporate officer, trustee or other person purporting to act in a representative capacity . . . is voidable.”); Hine v. Huntington, 103 N.Y.S. 535, 540 (1907) (“We have before this called attention to the fact that the cestui que trust is at perfect liberty to elect to approve an unauthorized investment and enjoy its profits, or to reject it at his option.”); 106 N.Y. Jur. 2d Trusts § 431 (“[T]rustee may bind trust to an otherwise invalid act or agreement which is outside the scope of the trustee’s power when beneficiary consents to or ratifies the trustee’s ultra vires act or agreement.”);see also In re Levy, 893 N.Y.S.2d 142, 144 (N.Y. App. Div. 2010) (explaining that “[t]he essence of ratification ‘is that the beneficiary unequivocally declares that he does not regard the act in question as a breach of trust but rather elects to treat it as a lawful transaction under the trust’”) (quoting Bogert, Law of Trusts and Trustees § 942).
If an act may be ratified, it is voidable rather than void. See Hacket v. Hackett, 950 N.Y.S.2d 6082012 WL 669525, at *20 (N.Y. Sup. Ct. Feb. 21, 2012) (“A void contract cannot be ratified; it binds no one and is a nullity.
However, an agreement that is merely voidable by one party leaves both parties at liberty to ratify the transaction and insist upon its performance.”) (quoting 27 Williston on Contracts § 70:13 [4th ed.]) (internal quotation marks omitted); 17 C.J.S. Contracts § 4 (noting that “a void contract . . . is no contract whatsoever” and “cannot be validated by ratification”) (emphasis added); id. (“A contract that is merely voidable is capable of being confirmed or ratified by the party having the right to avoid it . . . .”).
These cases above make it obvious that, under New York law, a trustee’s unauthorized transactions may be ratified; such transactions, voidable—not void.
That being the case, if the trustee of the securitized trust can’t, on its own, decide to accept these late-delivered notes, then it’s clear the beneficiaries can. They can ratify or waive anything they want. Common sense dictates that they can either, accept the notes/mortgages even though they were delivered late, giving the trust power to enforce, but theoretically putting the trust’s tax-exempt REMIC status at risk; or not allowing the trustee to accept the notes/mortgages, keeping their REMIC status alive, but denying themselves the income from the notes/mortgages they bought.
Common sense would also dictate that if there are enormous numbers of late-delivered notes/mortgages, does anyone really believe that the holders of these notes/mortgages would rather lose the tax benefits by virtue of it becoming a taxable event, which is highly unlikely because the IRS has failed to take any action so far, or lose the income from the notes/mortgages. Anyone who got out of the third grade can figure this one out.

Ideal Strategy for Glaski and ALL Mortgagors

I take this position: if you borrow money to buy a house on a valid mortgage deal, pay it back timely in accordance with your agreements or give up the house. Don’t fight the foreclosure because you will lose and you might suffer Post Traumatic Brain Injury as a result. But, if the mortgage lacks validity because the lender or lender’s agents cheated you, do your best to hammer the lender into a concession that leaves you with the house and compensation. To that end, I propose the following strategy:

  1. Get a comprehensive mortgage examination by a competent professional who has knowledge of all the related areas of law AND consummate litigation skill. Then,
  2. If no causes of action (reasons to sue) exist, walk from the house as you should, with a short-sale or deed-in-lieu-of-foreclosure deal to salvage as much as you can of your credit rating.
  3. Use the discovered causes of action to force a settlement for money or cram-down (reduced balance) refinance, or sue for compensatory and punitive damages and legal fees and costs.
  4. Do not EVER accept a loan modification, for all are just scams to increase your debt, increase the likelihood of foreclosure, and deprive you of the right to sue over prior predatory lending injuries.

If you obtained a home mortgage loan in the past 10 to 15 years, you might have numerous causes of action underlying the mortgage. In that case you should demand settlement or sue, whether or not you face foreclosure. I can review your situation and introduce you to America’s premier mortgage fraud examiner if circumstances warrant it.

For full details in a FREE discussion, call Mortgage Attack at 727 669 5511 now, or fill in, save, and email the Mortgage Attack Questionnaire at http://mortgageattack.com.

Aug 30, 2013
Securitization haters have gone giddy or berserk with the news of the Glaski, Erobobo, and Saldivar opinions denouncing foreclosure on the basis of broken chain of assignment of the note. Courts have said assignment into …

 

USDC Judge denounces Glaski, tosses Mottale.

Mortgage Victims, Get a Clue:

ATTACK THE MORTGAGE, NOT THE FORECLOSURE

I have repeatedly denounced the Glaski opinion of California’s 5th District Court, explaining that Glaski wasted his money fighting a foreclosure that the courts had to allow because he did in fact breach his mortgage note.

Now USDC Judge Gonzalo Curiel of California’s Southern District has given Michael and Erica Mottale similarly shrift justice to their foreclosure defense which cited the Glaski opinion as a basis for the court to consider their reasons for halting the foreclosure.  His honor cited an array of opinions in opposition to the Glaski opinion, and explains why.

I have excerpted the below text from the opinion in Mottale v Kimball, Tirey & St. John et al
http://law.justia.com/cases/federal/district-courts/california/casdce/3:2013cv01160/414549/27

“B. Motion to Dismiss

“Defendants move to dismiss Plaintiffs’ “securitization” theory as failing to set forth a cognizable legal theory. (Dkt. No. 20-1 at 7-8) (“Plaintiff’s securitization argument is simply not the law in California and thus the related claims against KTS[J] are improper and baseless as a matter of law.”). In response, Plaintiffs cite the recent California Court of Appeal case Glaski v. Bank of America National Association, et al., 218 Cal. App. 4th 1079 (Aug. 8, 2013), to support the plausibility of Plaintiffs’ unlawful securitization theory of liability. (Dkt. No. 22 at 3.) In Glaski, the court interpreted New York trust law to find that a borrower could have standing to challenge the assignment of the borrower’s loan if the defect asserted by the borrower would void the assignment. Id. at 1095. The Court first notes that the weight of authority rejects Glaski as a minority view on the issue of a borrower’s standing to challenge an assignment as a third party to that assignment. See Rivac v. Ndex West LLC, No. C 13-1417 PJH, 2013 WL 6662762 at *4 (N.D. Cal. Dec. 17, 2013) (collecting cases); Boza v. U.S. Bank Nat. Ass’n, LA CV12-06993 JAK, 2013 WL 5943160 at *10 (C.D. Cal. Oct. 28, 2013) (same); In re Sandri, 501 B.R. 369, 374-78 (Bankr. N.D. Cal. 2013) (same).

“Additionally, even if the Court found the Glaski court’s reasoning persuasive, the Court finds that Plaintiffs fail to plead the facts to support such a theory. For example in Glaski, the court considered many factual details regarding the loan at issue in that case, including facts regarding the payments owed and the borrower’s attempts to obtain loan modifications. 218 Cal. App. 4th 1079, 1083-84 (2013). The court considered details regarding the creation of the alleged fraudulent trust and assignment of plaintiff’s loan challenged by the plaintiff in that case, including: the factual allegations that assignment was attempted after the closing date; the specifics of alleged transfers of plaintiff’s loan; and the alleged roles the defendants played in these actions. Id. at 1084-85. Furthermore, the court in Glaski considered facts regarding alleged misrepresentations made by defendants to plaintiff, including what the plaintiff was told, how the plaintiff interpreted the statements made, and who made the representations at issue. Id. at 1085-86. In summary, even if Glaski supports a finding that Plaintiffs’ legal theory is legally cognizable, Glaski cannot relieve Plaintiffs of the burden of alleging sufficient facts to state a claim under Federal Rule of Civil Procedure 12(b)(6) or, where Plaintiffs are alleging fraud, of pleading allegations of fraud with particularity, Fed. R. Civ. P. 9(b). The Court therefore turns to addressing each of the Causes of Action challenged for factual sufficiency in Defendants’ motion to dismiss.”

What lesson shall we take away from Glaski and the host of opinions in opposition to it?  Consider this:

One who takes out a mortgage loan must repay it timely according to the terms of the note or forfeit the collateral realty according to terms of the mortgage.

Any defense against forfeiture of the collateral must fail. But, the mortgagor has a glimmer of hope in attacking the lender or lender’s agents for injuring the mortgagor at the inception of the loan.  You see, a good offense can become one’s best defense.

Otherwise defenses against foreclosures of valid loans must fail.  And that includes every single securitization argument one can conjure.  Securitization has nothing to do with the obligation of the mortgagor to pay off the note according to its terms.  If you, the mortgagor, can prove that the lender or lender’s agents injured you, then you can attack them for those injuries, and a court will rule in your favor if the lender or agents don’t convince you to settle with them first.  Ruling in your favor can consist of financial set-off of the amount you owe, cram-down of the loan to a lower balance refinanced at terms favorable to you, compensatory damage, punitive damages, and legal fees and costs paid by your opponent.

Have you seriously contemplated how you might go about discovering the various ways the lender or agents injured you at the beginning of the loan?  They might have lied to you about the value of the house, or submitted false information on your loan application, or any one of DOZENS of other items of tortious conduct, contract breaches, or legal errors still within the statute of limitations.  Some tortious acts, like fraud, can justify treble (triple) damages in your favor.  That could become quite a win for you.

Look at it this way.

  1. ALWAYS LOSE when you defend against foreclosure; or…
  2. ALWAYS WIN when you attack against the lending team for torts, breaches, and errors

It’s that simple.  Defend and LOSE, or Attack and WIN.  Which do you prefer?

Here’s a stack of examples of DEFEND-and-LOSE:

http://fe.gd/Slq

Here’s a STELLAR example of ATTACK-and-WIN:

http://fe.gd/JYF

So, take your choice:  Defend and LOSE or Attack and WIN.  Got it?   Good.

Now, if you want to learn how to find the torts, errors and breaches underlying your mortgage, CALL ME at 727 669 5511 right NOW, or Email Me right NOW.  I’ll explain everything to you FREE.

Courts Deprecate Glaski – Only parties to the PSA may enforce it.

Violations of the PSA Won’t Save your House!

The July 2013 opinion by the California 5th District in Glaski v BOA caused an uproar of hope in the foreclosure pretense defense community.  Finally a California appeals panel’s judges had their heads screwed on straight.  They struck down Glaski’s foreclosure because assignment of the note to the supposed trustee who foreclosed became void under New York law because it happened after the closing date which the Pooling and Servicing Agreement (PSA) stipulated.

But now an array of California courts have tossed the Glaski opinion in the trash, favoring instead  the prior May 2013 Jenkins v JP Morgan Chase Bank contrary opinion and the more recent contrary opinions by the CSD USDC in Mottale v Kimball Tirey.

I have cited those and a number of related cases below, a treasure trove of opinions to get the point across thoroughly, and copied a related article by Locke Lord lawyers.  The point is:

If you are not a party to the PSA and you did not get injured by its parties, then you have NO STANDING to enforce or dispute it in court.

Consider this a warning to foreclosure victims:  don’t pin your hopes on Glaski – if you do, you’ll lose your house.  Period.

Okay, so HOW SHALL I SAVE MY HOUSE?

I put attacks against the PSA and securitization in the category of FAILING FORECLOSURE DEFENSE ARGUMENTS.  You can count on foreclosure pretender defender lawyers across America to try to use them, but all they end up doing is costing foreclosure victims more money and losing the house anyway.  They (and you, if you hire one of them) only waste resources to delay the inevitable foreclosure sale of the house.

I know of only one sure-fire way to WIN some form of concession or financial benefit from a mortgagee or mortgage note holder:  ATTACK them or the loan originator and/or agents for injuring you at the inception of the loan (including any attempted scam loan modification where they con you into breaching the note to qualify for mod).

In order to attack them for injuring you, you must first discover HOW they injured you.  That means you must examine your mortgage related documents comprehensively and thoroughly, having a good knowledge of related law, and take note of all the causes of action against them (reasons to sue them) that you can find.

If you don’t have that skill and your lawyer does not have that skill, and neither of you have the willingness to do that difficult and onerous job, then you must hire a competent mortgage examiner to do it for you.

I know only ONE such competent mortgage examiner in the world with the willingness and ability to examine your mortgage and find all the underlying causes of action.

If you call me at 727 669 5511, or send me your name and contact information by email I shall explain the process in detail for you, and connect you to the mortgage examiner IF YOU QUALIFY and IF you won’t just waste his time.  I shall do this free of charge, and with no further obligation to you because I like helping sincere people.

But if you are just a tire-kicker or dilettante with no intention or heart for attacking your scurrilous lender, appraiser, mortgage broker, title officer, servicer, etc, don’t bother contacting me because I won’t be able to do anything for you, and it will just waste time for both of us.

Picture thi s –  With a mortgage examination report in hand, you can negotiate a settlement with your lender, or prepare and file a lawsuit against the lender and confederates.  You could win anything from a loan balance cram down (to an affordable level, refinanced) to monetary set-offs against your debt, to your house free and clear, to compensatory damages, to punitive damages, possibly in the millions.

All you get if you beat the foreclosure (which you won’t) is the same old house needing repairs and a huge mortgage you cannot afford.  When fighting the foreclosure, you will not eliminate the debt, and if you foolishly do a loan mod, you will end up owing double to triple the value of your house and have a balloon you probably will never be able to pay, and you’ll end up in foreclosure again.  You might as well slap a ball and chain around your ankle and sell yourself into servitude as the bank’s slave.

Or, picture you and your family with the peace of mind and money to enjoy a nice hot tub experience after you win a settlement from the bank for injuring you.  If you like that picture, CALL me.  I’ll show you the path to liberation.

Bob Hurt
727 669 5511
E-mail 

REFERENCE MATERIALS

http://scholar.google.com/scholar_case?case=8443134560105369166
Mottale v Kimball Tirey & St. John, LLP
, Dist. Court, SD California 10 January 2014 – The opinion in this California Federal case showed the futility of using Glaski as the basis for arguing against securitization:

Defendants move to dismiss Plaintiffs’ “securitization” theory as failing to set forth a cognizable legal theory. (Dkt. No. 20-1 at 7-8) (“Plaintiff’s securitization argument is simply not the law in California and thus the related claims against KTS[J] are improper and baseless as a matter of law.”). In response, Plaintiffs cite the recent California Court of Appeal case Glaski v. Bank of America National Association, et al., 218 Cal. App. 4th 1079 (Aug. 8, 2013), to support the plausibility of Plaintiffs’ unlawful securitization theory of liability. (Dkt. No. 22 at 3.) In Glaski, the court interpreted New York trust law to find that a borrower could have standing to challenge the assignment of the borrower’s loan if the defect asserted by the borrower would void the assignment. Id. at 1095. The Court first notes that the weight of authority rejects Glaski as a minority view on the issue of a borrower’s standing to challenge an assignment as a third party to that assignment. See Rivac v. Ndex West LLC, No. C 13-1417 PJH, 2013 WL 6662762 at *4 (N.D. Cal. Dec. 17, 2013) (collecting cases); Boza v. U.S. Bank Nat. Ass’n, LA CV12-06993 JAK, 2013 WL 5943160 at *10 (C.D. Cal. Oct. 28, 2013) (same); In re Sandri, 501 B.R. 369, 374-78 (Bankr. N.D. Cal. 2013) (same).

Additionally, even if the Court found the Glaski court’s reasoning persuasive, the Court finds that Plaintiffs fail to plead the facts to support such a theory. For example in Glaski, the court considered many factual details regarding the loan at issue in that case, including facts regarding the payments owed and the borrower’s attempts to obtain loan modifications. 218 Cal. App. 4th 1079, 1083-84 (2013). The court considered details regarding the creation of the alleged fraudulent trust and assignment of plaintiff’s loan challenged by the plaintiff in that case, including: the factual allegations that assignment was attempted after the closing date; the specifics of alleged transfers of plaintiff’s loan; and the alleged roles the defendants played in these actions. Id. at 1084-85. Furthermore, the court in Glaski considered facts regarding alleged misrepresentations made by defendants to plaintiff, including what the plaintiff was told, how the plaintiff interpreted the statements made, and who made the representations at issue. Id. at 1085-86. In summary, even if Glaski supports a finding that Plaintiffs’ legal theory is legally cognizable, Glaski cannot relieve Plaintiffs of the burden of alleging sufficient facts to state a claim under Federal Rule of Civil Procedure 12(b)(6) or, where Plaintiffs are alleging fraud, of pleading allegations of fraud with particularity, Fed. R. Civ. P. 9(b). The Court therefore turns to addressing each of the Causes of Action challenged for factual sufficiency in Defendants’ motion to dismiss.

http://www.lexology.com/library/detail.aspx?g=6b56d02a-06f0-4d51-a384-f525c0712c56

California Court follows well-established case law in ruling – borrower cannot challenge validity of loan securitization

 

  • USA

 

  • October 10 2013

Glaski v. Bank of America, N.A., 218 Cal. App. 4th 1079 (July 31, 2013) –  “a borrower may challenge [a] 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.”

Diunugala is the first case coming out of a California court to expressly reject the California Court of Appeal’s reasoning inGlaski and deem Glaski unpersuasive. While not binding authority, other State and Federal Courts in California may followDiunugala as persuasive authority and similarly follow well-established case law holding that a borrower lacks standing to challenge an allegedly invalid assignment of a deed trust.

 

The Glaski opinion contradicted Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497 (May 17, 2013 – borrowers lack standing to challenge the validity of an assignment to which they are neither party nor beneficiary. “As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, [plaintiff] lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, relating to such transactions.”

Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, (2011) – California non-judicial foreclosure statutes do not “provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized.”

Diunugala v. JP Morgan Chase Bank, N.A. (Case No. 12-cv-02106-WQH-NLS) (October 3, 2013) –  “[we find] the reasoning in [cases such as Jenkins and Gomes] to be more persuasive than that in Glaski.” Even if the Glaski court correctly decided the case, a plaintiff cannot assert a claim based upon an allegedly ineffective assignment of a deed of trust without alleging facts demonstrating that the deed of trust was not assigned in any manner or alleging resulting prejudice to the borrower.

Google Scholar Search Results

 

Jenkins v. JP Morgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 3rd Div., 2013 – Google Scholar

Diane Jenkins (Jenkins) requests the reversal of the trial court’s dismissal of her lawsuit after
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Cited by 30 Related articles All 2 versions Cite Save

 

Jenkins v. JP Morgan Chase Bank

Court of Appeals, 9th Circuit, 2013 – Google Scholar

The district court properly dismissed Jenkins‘ action because, under the Purchase and Assumption
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IN RE CHOUDHURI

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ATTILI v. E* TRADE BANK

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GILBERT-DAVIS v. Los Angeles County Metropolitan Transportation Authority

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LLC v. Morgan, Lewis &  the plaintiff’s] previous unsuccessful attempts to plead,'”‘ it is improbable
the plaintiff can state a cause of action.” (Jenkins v. JPMorgan Chase Bank, NA (2013 

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SABHERWAL v. BANK OF NEW YORK MELLON

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NA (2013) 216 Cal.App.4th 497, 511 [156 Cal.Rptr.3d 912] (Jenkins); Gomes, supra 

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Jenkins v. JPMorgan Chase Bank, NA

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Sporn v. JPMorgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 3rd Div., 2014 – Google Scholar

 The power of sale may be exercised by the assignee if the assignment is duly acknowledged
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JPMorgan Chase Bank, NA (2013) 216 Cal.App.4th 497, 518 (Jenkins).). 

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Zapata v. WELLS FARGO BANK, NA

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PEDERY-EDWARDS v. JP Morgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 1st Div., 2014 – Google Scholar

 Appellant Judith Pedery-Edwards appeals from a judgment entered in favor of defendants JP
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to accomplish the agreement’s purposes.” (Jenkins v. JPMorgan Chase Bank, NA (2013 

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Holmes v. HSBC BANK USA

Cal: Court of Appeal, 2nd Appellate Dist., 8th Div., 2014 – Google Scholar

 (2013) 219 Cal.App.4th 75, 82; Jenkins v. JPMorgan Chase Bank, NA (2013) 216
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June 2, 2011, No. CV10-08185 ODW (FFMx)) 2011 USDist. 

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CHAOUI v. Bank of America, NA

Cal: Court of Appeal, 2nd Appellate Dist., 8th Div., 2013 – Google Scholar

 (Jenkins v. JPMorgan Chase Bank, NA (2013) 216 Cal.App.4th 497, 506 (Jenkins).). [2] The notice
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11, 2011, a “Notice of Rescission of a Trustee’s Deed Upon Sale” was recorded. 

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Glaski v. Bank of America

218 Cal. App. 4th 1079, 160 Cal. Rptr. 3d … – Cal: Court of Appeal, 5th …, 2013 – Google Scholar

Before Washington Mutual Bank, FA (WaMu), was seized by federal banking regulators in
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Zapata v. WELLS FARGO BANK, NA

Dist. Court, ND California, 2013 – Google Scholar

 Dec. 21, 2012). Plaintiffs rely on Glaski v. Bank of America, NA, 218 Cal.App.4th 1079 (2013),
to argue that they can challenge the securitization process. Glaski, however, is in the clear minority
on this issue. The Glaski decision relies on New York law to reach its conclusion. 

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MOTTALE v. KIMBALL TIREY & ST. JOHN, LLP

Dist. Court, SD California, 2014 – Google Scholar

 In response, Plaintiffs cite the recent California Court of Appeal case Glaski v. Bank of America
National Association, et al., 218 Cal. App. 4th 1079 (Aug. 8, 2013), to support the plausibility
of Plaintiffs’ unlawful securitization theory of liability. (Dkt. No. 

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Sporn v. JPMorgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 3rd Div., 2014 – Google Scholar

 (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079 (Glaski); Jenkins, supra, 216
Cal.App.4th 497, 518; Gomes, supra, 192 Cal.App.4th 1149.) Plaintiff has not alleged any specific
facts supporting such a claim and these cases do not save plaintiff’s cause of action. 

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GLASKI v. BANK OF AMERICA, NATIONAL ASSOCIATION

Cal: Court of Appeal, 5th Appellate Dist., 2013 – Google Scholar

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 

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Nguyen v. JP Morgan Chase Bank, NA

Dist. Court, ND California, 2014 – Google Scholar

 [13] Although Chase’s original motion argues that the Nguyens do not have standing
to raise such issues, the Nguyens’ opposition brief contends that they do based on
a single California appellate case, Glaski v. Bank of America. 

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Haddad v. Bank of America, NA

Dist. Court, SD California, 2014 – Google Scholar

 28, 30). Plaintiff contends that the First Amended Complaint adequately states claims for relief
pursuant to the holding of Glaski v. Bank of America, NA, 218 Cal. App.  Plaintiff contends that
he has standing for the reasons stated in Glaski v. Bank of America, NA, 218 Cal. App. 

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Maxwell v. DEUTSCHE BANK NATIONAL TRUST COMPANY

Dist. Court, ND California, 2013 – Google Scholar

 Expungement is warranted. The plaintiffs have provided almost no argument in opposition. They
merely cite to Glaski v. Bank of America, 218 Cal. App. 4th 1079 (Ct.  Oct. 31, 2013) (citing cases
disagreeing with Glaski). II. THE REQUEST FOR ATTORNEY’S FEES IS GRANTED. 

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DAHNKEN v. WELLS FARGO BANK, NA

Dist. Court, ND California, 2013 – Google Scholar

 valid beneficiary is unknown,” but “[w]hat is known is that the defendants to this action do not
have the authority to exercise the power of sale or to collect mortgage payments from the plaintiff.”
See Complaint at 9. To support this argument, plaintiff largely relies on Glaski v. Bank 

Cite Save

IN RE SANDRI

Bankr. Court, ND California, 2013 – Google Scholar

 The court disagrees, as Glaski is inconsistent with the majority line of cases and
is based on a questionable analysis of New York trust law. 1. The Weight of Authority
is Against Glaski 2. Glaski’s Reasoning is Not Persuasive. 

Cite Save

 

Bergman v. Bank of America, NA

Dist. Court, ND California, 2014 – Google Scholar

 As to the claim that Defendants breached the PSA, Plaintiffs newly argue that the Court
should follow Glaski v. Bank of Am., Nat’l Ass’n, 218 Cal. App.  See FAC ¶¶ 25-26. However,
as Defendants point out, Glaski represents a minority view. 

Cite Save

SUBRAMANI v. WELLS FARGO BANK NA

Dist. Court, ND California, 2013 – Google Scholar

 Sept. 24, 2012). On this point, Plaintiff contends that a recent California Court of Appeals case,
Glaski v. Bank of America, NA, 218 Cal. App. 4th 1079 (Cal. Ct. App.  at 1094-95. Defendant
counters that the Court should ignore Glaski as stating the minority rule. 

Cite Save

Grimm v. CAPITAL ONE, NA

Cal: Court of Appeal, 4th Appellate Dist., 1st Div., 2013 – Google Scholar

 The Grimms filed a letter bringing to our attention a recently published case, Glaski v. Bank of
America (2013) 218 Cal.App.4th 1079, which they claim “is relevant to the issue on appeal related
to [Capital One’s] improper securitization procedures and lack of assignment into the 

Cite Save

Apostol v. CITIMORTGAGE, INC.

Dist. Court, ND California, 2013 – Google Scholar

 Plaintiff relies on Glaski v. Bank of Am., Nat’t Ass’n, 218 Cal. App. 4th 1079, 1097 (2013).  Id.
at 1097-98. However, Glaski represents a distinct minority view on the standing of third parties
to enforce or assert claims based on alleged violations of a PSA. 

Cite Save

IN RE SCOMPARIN

Bankr. Court, ND California, 2014 – Google Scholar

 In support of his position, Plaintiff cites Thomas A. Glaski v. Bank of America, 2013 WL 4037310
(Cal. Ct. App. July 31, 2013).  As determined in In re Sandri, 501 BR 369 (Bankr. ND Cal. 2013),
the clear weight of authority is against Glaski and its reasoning is unpersuasive. 

Cite Save

US Bank National Association v. FRIEDRICHS

Dist. Court, SD California, 2013 – Google Scholar

 She contends that the proposed amendment is not made in bad faith and not futile as the law
in California has changed under Glaski v. Bank of America, Nat’l Assoc., 218 Cal. App. 4th 1079
(2013).  Oct. 5, 2012). Here, both parties argue, in detail, the merits of the Glaski case. 

Cite Save

Engler v. RECONTRUST COMPANY

Dist. Court, CD California, 2013 – Google Scholar

 May 30, 2012) (Chen, J.) (granting preliminary injunction preventing foreclosure sale because
the plaintiff was likely to prevail on claim that foreclosure was improper due to fraudulent
substitution of trustee); Glaski v. Bank of Am., Nat’l Ass’n, 218 Cal. App.  See Glaski, 218 Cal. 

Cite Save

RIVAC v. NDEX WEST LLC

Dist. Court, ND California, 2013 – Google Scholar

 for securitization” as they argue in the opposition. Plaintiffs rely on Glaski v. Bank of
America, 218 Cal. App.  IT IS SO ORDERED. [1] The court also notes that even in California
courts, the holding in Glaski has not been adopted universally. 

Cite Save

Holmes v. HSBC BANK USA

Cal: Court of Appeal, 2nd Appellate Dist., 8th Div., 2014 – Google Scholar

 2012) 885 F.Supp.2d 964, 973-974; Glaski v. Bank of America (2013) 218 Cal.App.4th 1079,
1097; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1378-1379;
Sacchi v. Mortgage Elec. Registration Sys. (CDCal. June 24, 2011, No. 

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PEDERY-EDWARDS v. JP Morgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 1st Div., 2014 – Google Scholar

 that a foreclosure was wrongful because it was initiated by a nonholder of the deed of trust has
also been phrased as (1) the foreclosing party lacking standing to foreclose or (2) the chain of
title relied upon by the foreclosing party containing breaks or defects.” (Glaski v. Bank of 

Cite Save

SEPEHRY-FARD v. DEPARTMENT STORES NATIONAL BANK

Dist. Court, ND California, 2013 – Google Scholar

 39-3 at 4-5). [6] In making his argument that securitization of the credit debt somehow prevents
the Financial Entities from collecting on his debt, plaintiff relies extensively on Glaski v. Bank
of America, 218 Cal.App.4th 1079 (Cal.App. 2013). That reliance is wholly misplaced. 

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YOUKHNA v. AMERICA’S WHOLESALE LENDER

Cal: Court of Appeal, 2nd Appellate Dist., 4th Div., 2013 – Google Scholar

 The notes may thereafter be transferred among members without requiring recordation in the
public records.”. [5] As explained in Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1082,
“In simplified terms, `securitization’ is the process where (1) many loans are bundled 

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Siliga v. Mortgage Electronic Registration Systems, Inc.

219 Cal. App. 4th 75, 161 Cal. Rptr. 3d … – Cal: Court of Appeal, 2nd …, 2013 – Google Scholar

219 Cal.App.4th 75 (2013). 161 Cal. Rptr. 3d 500. JOHNNY SILIGA et al., Plaintiffs and Appellants,
v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., et al., Defendants and
Respondents. No. B240531. Court of Appeals of California, Second District, Division Three. 

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Wolford v. AMERICAN HOME MORTGAGE SERVICING, INC.

Cal: Court of Appeal, 2nd Appellate Dist., 2nd Div., 2013 – Google Scholar

 Thus, the homeowner-plaintiff does not suffer an injury as a result of the assignment of deed of
trust, even if the assignment was fraudulent”]; but cf. Glaski v. Bank of America (2013) 218
Cal.App.4th 1079, 1097, fn. 16 [finding forgery a question of fact under New York law].). 

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DIUNUGALA v. JPMorgan Chase Bank, NA

Dist. Court, SD California, 2014 – Google Scholar

On January 6, 2014, Plaintiff filed the Ex Parte Application for a Temporary Restraining
Order. (ECF No. 39). Plaintiff “seeks a TRO to preliminary enjoin Defendants . . . and any other
persons or entities acting on their behalf, including the San Diego County Sheriff, from 

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DIUNUGALA v. JP Morgan Chase Bank, NA

Dist. Court, SD California, 2013 – Google Scholar

After review of the filings of the parties, the Court finds that there has been an insufficient showing
of prejudice to Defendants or undue delay in bringing the proposed class allegations to overcome
the “presumption under Rule 15(a) in favor of granting leave to amend.” Id. To the extent 

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SUBRAMANI v. WELLS FARGO BANK NA

Dist. Court, ND California, 2013 – Google Scholar

 See Newman v. Bank of NY Mellon, No. 1:12-CV-1629 AWI GSA, 2013 WL 5603316, at *3 n.2
(ED Cal. Oct. 11, 2013) (“Glaski is in a clear minority” on this issue); Diunugala v. JP Morgan
Chase Bank, NA, No. 12-cv-2106-WQH-NLS, 2013 WL 5568737, at *8 (SD Cal. Oct. 

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Lueras v. BAC Home Loans Servicing, LP

221 Cal. App. 4th 49, 163 Cal. Rptr. 3d … – Cal: Court of Appeal, 4th …, 2013 – Google Scholar

 For this reason, `[n]umerous cases have characterized a loan modification as a
traditional money lending activity.'” (See Diunugala v. JP Morgan Chase Bank, NA
(SDCal., Oct. 3, 2013, No. 12cv2106-WQH-NLS) 2013 USDist. 

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More Failing Securitization Arguments by Foreclosure Victims

  • Rodenhurst v. Bank of Am., 773 F. Supp. 2d 886, 899 (D. Haw. 2011) (“The overwhelming authority does not support a [claim] based upon improper securitization.”) “[S]ince the securitization merely creates a separate contract, distinct from plaintiffs’ debt obligations under the Note and does not change the relationship of the parties in any way, plaintiffs’ claims arising out of securitization fail.”
  • Lamb V. Mers, Inc., 2011 WL 5827813, *6 (W.D. Wash. 2011) (citing cases);
  • Bhatti, 2011 WL 6300229, *5 (citing cases);
  • In re Veal, 450 B.R. at 912 (“[Plaintiffs] should not care who actually owns the Note-and it is thus irrelevant whether the Note has been fractionalized or securitized-so long as they do know who they should pay.”);
  • Horvath v. Bank of NY, N.A., 641 F.3d 617, 626 n.4 (4th Cir. 2011) (securitization irrelevant to debt);
  • Commonwealth Prop. Advocates, LLC v. MERS, 263 P.3d 397, 401-02 (Utah Ct. App. 2011) (securitization has no effect on debt);
  • Henkels v. J.P. Morgan Chase, 2011 WL 2357874, at *7 (D.Ariz. June 14, 2011) (denying the plaintiff’s claim for unauthorized securitization of his loan because he “cited no authority for the assertion that securitization has had any impact on [his] obligations under the loan, and district courts in Arizona have rejected similar arguments”);
  • Johnson v. Homecomings Financial, 2011 WL 4373975, at *7 (S.D.Cal. Sep.20, 2011) (refusing to recognize the “discredited theory” that a deed of trust ” ‘split’ from the note through securitization, render[s] the note unenforceable”);
  • Frame v. Cal-W. Reconveyance Corp., 2011 WL 3876012, *10 (D. Ariz. 2011) (granting motion to dismiss: “Plaintiff’s allegations of promissory note destruction and securitization are speculative and unsupported. Plaintiff has cited no authority for his assertions that securitization has any impact on his obligations under the loan”).”The Court also rejects Plaintiffs’ contention that securitization in general somehow gives rise to a cause of action – Plaintiffs point to no law or provision in the mortgage preventing this practice, and cite to no law indicating that securitization can be the basis of a cause of action. Indeed, courts have uniformly rejected the argument that securitization of a mortgage loan provides the mortgagor a cause of action.” See
  • Joyner V. Bank Of Am. Home Loans, No. 2:09-CV-2406-RCJ-RJJ, 2010 WL 2953969, at *2 (D. Nev. July 26, 2010) (rejecting breach of contract claim based on securitization of loan);
  • Haskins V. Moynihan, No. CV-10-1000-PHX-GMS, 2010 WL 2691562, at *2 (D. Ariz. July 6, 2010) (rejecting claims based on securitization because plaintiffs could point to no law indicating that securitization of a mortgage is unlawful, and “[p]laintiffs fail to set forth facts suggesting that Defendants ever indicated that they would not bundle or sell the note in conjunction with the sale of mortgage-backed securities”);
  • Lariviere V. Bank Of N.Y. As Tr., Civ. No. 9-515-P-S, 2010 WL 2399583, at *4 (D. Me. May 7, 2010) (“Many people in this country are dissatisfied and upset by [the securitization] process, but it does not mean that the [plaintiffs] have stated legally cognizable claims against these defendants in their amended complaint.”);
  • Upperman V. Deutsche Bank Nat’l Trust Co., No. 01:10-cv-149, 2010 WL 1610414, at *3 (E.D. Va. Apr. 16, 2010) (rejecting claims because they are based on an “erroneous legal theory that the securitization of a mortgage loan renders a note and corresponding security interest unenforceable and unsecured”);
  • Silvas V. Gmac Mortg., Llc, No. CV-09-265-PHX-GMS, 2009 WL 4573234, at *5 (D. Ariz. Dec. 1, 2009) (rejecting a claim that a lending institution breached a loan agreement by securitizing and cross-collateralizing a borrower’s loan). The overwhelming authority does not support a cause of action based upon improper securitization. Accordingly, the Court concludes that Plaintiffs cannot maintain a claim that “improper restrictions resulting from securitization leaves the note and mortgage unenforceable);
  • Summers V. Pennymac Corp. (N.D.Tex. 11-28-2012) (any securitization of Plaintiffs’ Note did not affect their obligations under the Note or PennyMac’s authority as mortgagee to enforce the Note and foreclose on the property if Plaintiffs defaulted).;
  • Nguyen V. Jp Morgan Chase Bank (N.D.Cal. 10-17-2012) (“Numerous courts have recognized that a defendant bank does not lose its ability to enforce the terms of its deed of trust simply because the loan is assigned to a trust pool. In fact, ‘securitization merely creates a separate contract, distinct from [p]laintiffs[‘] debt obligations under the note, and does not change the relationship of the parties in any way. Therefore, such an argument would fail as a matter of law”);
  • Flores v. Deutsche Bank Nat’l Trust Co., 2010 WL 2719848, at *4 (D. Md. July 7, 2010), the borrower argued that his lender “already recovered for [the borrower’s] default on her mortgage payments, because various ‘credit enhancement policies,'” such as “a credit default swap or default insurance,” “compensated the injured parties in full.” The court rejected the argument, explaining that the fact that a “mortgage may have been combined with many others into a securitized pool on which a credit default swap, or some other insuring-financial product, was purchased, does not absolve [the borrower] of responsibility for the Note.” Id. at *5; see also
  • Fourness v. Mortg. Elec. Registration Sys., 2010 WL 5071049, at *2 (D. Nev. Dec. 6, 2010) (dismissing claim that borrowers’ obligations were discharged where “the investors of the mortgage backed securities were paid as a result of . . . credit default swaps and/or federal bailout funds);
  • Warren v. Sierra Pac. Mortg. Servs., 2010 WL 4716760, at *3 (D. Ariz. Nov. 15, 2010) (“Plaintiffs’ claims regarding the impact of any possible credit default swap on their obligations under the loan . . . do not provide a basis for a claim for relief”).
  • Welk v. GMAC Mortg., LLC., 850 F. Supp. 2d 976 (D. Minn., 2012) (“At the end of the day, then, most of what Butler offers is smoke and mirrors. Butler’s fundamental claim that his clients’ mortgages are invalid and that the mortgagees cannot foreclose because they do not hold the notes is utterly frivolous.);
  • Vanderhoof v. Deutsche Bank Nat’l Trust (E.D. Mich., 2013)(internal citations omitted) (“s]ecuritization” does not impact the foreclosure. This Court has previously rejected an attempt to assert a claim based upon the securitization of a mortgage loan. Further, MERS acts as nominee for both the originating lender and its successors and assigns. Therefore, the mortgage and note are not split when the note is sold.”);
  • Chan Tang v. Bank of America, N.A. (C.D. Cal., 2012) (internal citations omitted)(“Plaintiffs’ contention that the securitization of their mortgage somehow affects Defendants’ rights to foreclose is likewise meritless. Plaintiffs have identified no authority supporting their position that securitization voids the power of sale contained in a deed of trust. Other courts have dismissed similar arguments. Thus, the claim that Defendants lack the authority to foreclose because the Tangs’ mortgage was pooled into a security instrument is Dismissed With Prejudice.);
  • Wells v. BAC Home Loans Servicing, L.P., 2011 WL 2163987, *2 (W.D. Tex. Apr. 26, 2011) (This claim—colloquially called the “show-me-the-note” theory— began circulating in courts across the country in 2009. Advocates of this theory believe that only the holder of the original wet-ink signature note has the lawful power to initiate a non-judicial foreclosure. The courts, however, have roundly rejected this theory and dismissed the claims, because foreclosure statutes simply do not require possession or production of the original note. The “show me the note” theory fares no better under Texas law.);
  • Maynard v. Wells Fargo Bank, N.A. (S.D. Cal., 2013) (“Plaintiffs also allege that they conducted a Securitization Audit of Plaintiffs’ chain of title and Wachovia’s PSA, and as a result, determined that Plaintiffs’ Note and DOT were not properly conveyed into the Wells Fargo Trust on or before July 29, 2004, the closing date listed in the Trust Agreement. (Id. at ¶ 34.)… To the extent Plaintiffs challenge the validity of the securitization of the Loan because Wells Fargo and U.S. Bank failed to comply with the terms of the PSA or the Trust Agreement, Plaintiffs are not investors of the Loan, nor are Plaintiffs parties to the PSA or Trust Agreement. Therefore, as many courts have already held, Plaintiffs lack standing to challenge the validity of the securitization of the Loan…Furthermore, although Plaintiffs contend they have standing to challenge the validity of the Assignment because they were parties to the DOT with the original lender (Wells Fargo), this argument also fails. (Doc. No. 49 at 11-12.);
  • Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 511-13, 156 Cal. Rptr. 3d 912 (Cal. Ct. App. 2013) (“[E]ven if any subsequent transfers of the promissory note were invalid, [the borrower] is not the victim of such invalid transfers because her obligations under the note remained unchanged.”). As stated above, these exact arguments have been dismissed by countless other courts in this circuit. Accordingly, Plaintiffs’ contentions that the Assignment is void due to a failure in the securitization process fails.”);
  • Demilio v. Citizens Home Loans, Inc. (M.D. Ga., 2013) (“Frankly, the Court is astonished by Plaintiff’s audacity… Plaintiff requires the Court to scour a poorly-copied, 45-page “Certified Forensic Loan Audit” in an attempt to discern the basic facts of his case. This alone would be sufficient for dismissal. However, the Court is equally concerned by Plaintiff’s attempt to incorporate such an “audit,” which is more than likely the product of “charlatans who prey upon people in economically dire situation,”… As one bankruptcy judge bluntly explained, “[the Court] is quite confident there is no such thing as a ‘Certified Forensic Loan Audit’ or a ‘certified forensic auditor…. The Court will not, in good conscience, consider any facts recited by such a questionable authority.”)
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Mort Gezzam

Author: Maven

This guy is a real whizbang

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