CA Court Site Info on Foreclosure

Wednesday, July 30, 2014

CA Cases Arguing Voidable, not Void, Banks Claim More Wins

We bought the manual covering unlawful detainer within foreclosure cases, and although put together by a person (who is not an attorney), it had a lot of good information.  The blog on much of the same subject plus more has an example of how complicated the case law is becoming, insofar as the banks are trying to insure they will stay ahead of the game..we also would recommend the manual as it was done well in our opinion.

Below is info published by the author of the UD within Foreclosure manual.
We have added our own comments.

The Snowball from Hell…..Arguing Glaski

                                         It is not melting folks, it is growing and growing. 
                      While concurrently trying to undo the Glaski ruling (allowing homeowner’s to challenge a void assignment; and considering a late assignment into a REMIC trust void) by getting it unpublished (which was denied), the bank’s attorneys have been busy racking up rulings that purportedly make Glaski a “minority view”. 

                        District and State Courts have been ignoring the plain language of Stare Decisis to continue barring homeowners from legitimately defending their property rights against banks that continue to manufacture assignments into REMIC trusts that closed years ago.
                        Judges appear to be relying on two main points – 
           1) the assignment into a closed REMIC is voidable not void; and
           2) the transfer to the REMIC Trust doesn’t change the fact the homeowner is in default and 
           the original creditor would foreclose under the same circumstances.  
(Otherwise, the assignment is not prejudicial to the homeowner).

              One of the most leveraged cases is one called Jenkins v. JP Morgan Chase, N.A. 216 Cal. App.4th 497 (2013) , a state ruling out of Fourth Appellate District that was decided approximate three months before Glaski[1] The Jenkins Court, relying heavily on Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153, 121 Cal.Rptr.3d 819 found that Jenkins had no  right to challenge the nonjudicial foreclosure to determine if the parties foreclosing had the right to initiate and conduct the foreclosure; and at no time did Jenkins questioned the voidness of the assignment;  (See What does it mean when the Courts follow Jenkins v. JP Morgan Chase, N.A. and decline following Glaski v. Bank of America, N.A.? )

 Jenkins   asserted the terms of the pooling and serving agreement were violated because: 

(1) the promissory note was not transferred into the investment trust with a complete and unbroken chain of endorsements and transfers and this extinguished their interest in the Note and Deed of Trust; and 

(2) the trustee of the investment trust did not have actual physical possession of the note and deed of trust prior to the closing date of the investment trust.
I haven’t seen the pleadings in the Jenkins case and am only giving my two cents on this based on the Court’s ruling. 
LR Note:  *See the Jenkins case link following this post
             Clearly in Glaski the borrower did not claim the Note and Deed of Trust were extinguished; what he claimed is that the REMIC Trust was not the beneficiary.  Those factual allegations overcame Gomes; and he challenged the assignment on the basis that it is void; not that the assignment into the trust somehow extinguished the validity of the Note and Deed of Trust. The difference in the arguments is significant.
              In reviewing the 29 cases coming up as “citing to Jenkins”  the Courts refuse to delve into whether the assignment is void--but rather simply state that the “chain of transfers” or lack thereof,   do not give the borrower standing to challenge the assignment.  They are ignoring this key argument in Glaski.  
              They are all also chicken  because they want to go with the “majority” of other rulings that only appear to support their lazy analysis.  If ever there was a time for an attorney to dig in on an argument, this is it.  This needs to be attacked clearly and plainly in any pleading against a Motion to Dismiss or Demurrer – with a clean, clear analysis of why these rulings are do not represent the arguments made in Glaski (and hopefully your case).

              In regard to the physical possession of the Note, that argument has been beat to death, so I am not going into this other than to say…knock out the assignment and make possession an issue. Short of doing that, this argument simply will not win.

              The other issue that comes up is whether or not the borrower is prejudiced by an invalid assignment. Because the borrower admits to being in default, they are not harmed by the foreclosure. .that is truly how these judges think.

  --->     *[Note by LR:  Yes, that is how Judges think in order to not be on the hook for trying to invalidate a long line of financial cases which have pretty much stated that banks as to the consumer, do not have any special duty to them. Only very recently have the STATES said that banks have any duty at all to consumer, and usually that duty runs only from the servicer to the consumer.
               It is likely easier for the duty to be at the servicer level, since many issues arose where consumers could not even establish a "single point of contact" at the huge banking entity with 15 different numbers in 7 states and with non working fax numbers.
             Also, if every consumer was actually harmed by every invalid assignment, there would be NO END to the lawsuits galore that would follow. Financial institutions and "banks" and the government all work together for the most part, despite wishful thinking. The government KNOWS the banks are very key to what goes on in the USA, and the government is not about to just let consumers (rich or poor) suddenly let a floodgate open and all hell break loose.                         
             Nope.  In other words, for example:  if we changed the law where any           death of any owned pet could be compensated by emotional distress damages,        the Pandora's Box would be open to every animal activist and their mothers to       start clogging the courts with millions of emotional distress claims.                                                               


    Furthermore, even if any subsequent transfers of the  promissory note were invalid, Jenkins is not a victim of such invalid transfers because her obligations under the note remained unchanged. 

Instead, the true victim may be an individual or entity that believes it has 
a present beneficial interest in the promissory note and may suffer the unauthorized loss of their interest in the note.  Jenkins v. JP Morgan Chase, N.A. 216 Cal. App.4th 497 (2013)

           In my (author of the UD manual) opinion,  besides the little fact that they are sanctioning strangers who have not been harmed by the alleged default to foreclose, the Judge is flat out wrong that the borrower’s obligation is the only consideration. This alleged lack of prejudice, or harm, has me scratching my head.

           Where a portfolio lender[2] would have incented to work out a loan on an underwater property to prevent or mitigate any losses; a Servicer and Trustee of a REMIC Trust may have greater financial incentives and benefits from forcing a foreclosure on underwater properties. Different REMIC Trusts have different incentives and ability to settle issues. 

            PSA terms, liquidity, capital requirements, credit risk exposure, and compensation differ between servicers, trustees and portfolio lenders. Given these differing incentives,  borrowers have a strong interest in identifying the real party in interest in order to negotiate a refinance or modification of their loan .  The obfuscation of the true “lender” does prejudice borrowers by preventing them from having meaningful negotiations for a resolution to any issues surrounding the loan. 
            Will it matter to the Court that the borrower was denied a modification because the servicer earned more money by denying the modification, and in driving its profits, it ignored that the borrower qualified for a modification?  It is important that arguments also explain to the Court (yeah, really you have to because the judges are this slow) why the borrower is harmed from the failure of the servicer to disclose the true beneficiary.  And don’t even get me started on the basis of 15 U.S.C. § 1641(g) – if federal law mandates disclosure of the real creditor, why is it okay their identify can be obscured during a foreclosure?  [LR: We have to sort of agree that logically, this is a sound argument...]

            Only the proven mortgagee may maintain a foreclosure action. The requirement that a foreclosure action be brought only by the actual mortgagee is at the heart of the issues with foreclosure irregularities.
            If the homeowner or the court challenges the claim of the party bringing a foreclosure action as the mortgagee, then evidenitiary issues arise as to whether the party bringing the foreclosure can in fact prove that it is the mortgagee. The issues involved are highly complex areas of law, but despite the complexity of these issues, they should not be dismissed as mere technicalities. Rather, they are legal requirements that must be observed both as part of due process and as part of the contractual bargain made between borrowers and lenders[3]. Getting clear on these arguments and the basis of the argument is key to your success in this fight.
Info To Fight Foreclosure store currently has a Homeowner Victory White Paper titled, “Glaski v. Bank of America, et al (Void Assignments).  It is a layman’s view of Glaski v. Bank of America, Inc. and goes into different arguments of why an assignment is void.  This white paper is free to pro se members; nonmembers can pick up a copy in our store for $59.99.


Below is the link to the Jenkins case from Google Scholar

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