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Sunday, April 12, 2015

Another Glaski- Type Case....Tanks in California March 2015... But Maybe It's Not Over Just Yet..

This case was thrown out on res judiciata/or collateral estop, but the 3 cases pending at CA Supreme Court, are issues involving assignment, standing and how it might fit or not even be mentioned in the civil code for non judicial foreclosure. Standing is jurisdictional, and generally the courts have seemed very opposed to finding for owners who simply could not pay their mortgages; however, in some cases, the owners may not have been able to pay, but nevertheless, the lending company was not exactly free of any wrongdoing either; such as, owner paid the amounts due, but lender refused to accept it; or lender told owner not to pay, as a condition of obtaining modification; or lender never used the single point of contact, and failed to adhere to HBOR which started January 2013. Negligence by servicers is specifically covered now, unless the Legislature changes the law.
http://www.courts.ca.gov/opinions/documents/B255958.PDF

F. WOOD BOYCE, Plaintiff and Appellant,

 v. T.D. SERVICE COMPANY et al., Defendants and Respondents


 "Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. As to [appellant], an assignment merely substituted one creditor for another, without changing [his]/her obligations on the note." (Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1507.) Appellant argues that the transfer of the note and deed of trust from PMG Mortgage to Option One, and from Option One to Wells Fargo were improper. Even if he is correct, "the relevant parties to such a transaction were the holders (transferors) of the promissory note and the third party acquirers (transferees) of the note." (Jenkins v. JPMorgan Chase Bank, N.A., supra, 216 Cal.App.4th at p. 515.)

Appellant is not the victim because his loan obligation 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 its interest in the note. It is also possible to imagine one or many invalid transfers of the promissory note may cause a string of civil lawsuits between transferors and transferees." (Ibid.) But appellant "may not assume the theoretical claims of hypothetical transferors and transferees for the purposes of showing a 'controversy or concrete actuality.' [Citation.]" (Ibid.)

Even if appellant had standing to sue for "wrongful foreclosure," he is precluded from litigating the issue a third time around.

None of the Glaski cases pending before the California Supreme Court--- involve a res judicata/collateral estoppel bar.  (Keshtgar v. U.S. Bank, N.A., supra, formerly 226 Cal.App.4th 1201 [a preemptive action to forestall foreclosure]; Yvanova v. New Century Mortgage Corp., supra, formerly 226 Cal.App.4th 495 [post-foreclosure action for quiet title and declaratory relief]); Mendoza v. JPMorgan Chase Bank, supra, formerly 228 Cal.App.4th 1020 [same])

Appellant had his day in court in the bankruptcy proceeding and another day in court in the unlawful detainer action. "Somewhere along the line, litigation must cease." (In re Marriage of Crook (1992) 2 Cal.App.4th 1606, 1613.)

BUT................................



Encore for Glaski Part II?  

http://foreclosureinformation.com/encore-for-glaski-part-ii/


Well, for some reason, it took non-lawyer homeowner to keep appealing her foreclosure case until  it came up to the California Supreme Court.  
In the case of Yvanova Vs. New Century Mortgage Corporation, the plaintiff argued, amongst other things, the same basic elements that was argued in the Glaski case.
The court agreed to narrowly review the Yvanova case :
What was so interesting with this case was that even though the homeowner was representing herself and the complaint was poorly written, the bank attorneys and courts agreed that it should be published.  
As put in a letter requesting that it be de-published, the writer cleverly points out that by the attorneys requesting to publish  “is akin to a heavyweight champion defeating a ping pong player in the ring and feeling the inherent need to brag about his victory.”
 YVANOVA IS NOW DEPUBLISHED AND NO LONGER CITABLE AUTHORITY.


  • California Supreme Court Grants Petition for Review of ...

    consumerfinancewatch.com/2015/.../california-supreme-court-grants-peti...

    Jan 16, 2015 - The California Supreme Court recently granted petitions for review in three ... cases decided by the California Courts of Appeal – Yvanova v.
  • Supreme Court to Decide Whether Borrower has Standing ...

    smflynn-law.com/.../-supreme-court-to-decide-whether-borrower-has-sta...

    Nov 26, 2014 - The Supreme Court has granted review in the case of Yvanova v. New Centry Mortg. ... The Supreme Court, like the Court of Appeal in Yvanova v. New Centry Mortg. Corp. (2014) ... 01/05/2015 10:27pm. Bloggers like you are ...
  • [PDF]Read the full article - United Trustees Association

    unitedtrustees.com/pdf/yvanova_update.pdf

    Phillip M. Adleson 2015. Page 1. 577 Salmar ... The California Supreme Court grants hearings on cases challenging assignments of deeds of ... On August 27, 2014, the California Supreme Court granted review of Yvanova v. New Century ...
  • [PDF]Pending California Supreme Court Cases That MPP

    www.supremecourttracker.com/California-Supreme-Court-Tracker.pdf

    Jan 12, 2015 - Updated on January 9, 2015. Page 1 of 38. Pending California Supreme Court Cases That MPP Is Tracking ..... January 16, 2015Yvanova v.
  • CA Supreme Ct Depublishes Yvanova v. New Century ...

    legalresearchcaliforniaforeclosures.blogspot.com/2015/.../ca-supreme-ct-...

    Feb 4, 2015 - And see later post re 2 other cases along with this one, likely to point out the differences in the ... http://www.supremecourttracker.com/California-Supreme-Court-Tracker.pdf ... In briefing Answer brief due January 16, 2015.



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