There have been several amicus curiae briefs filed in the last few days in the Yvanova case, currently pending before the California Supreme Court on Glaski-type issues of a borrower’s ability to challenge the foreclosing party’s authority, whether it came from a bad assignment, or from a hallucination from the Dalai Lama.
........[I]n granting hearings inYvanova, MendozaandKeshtgar, the Supreme Court made it clear that the Court is interested in resolving the issue of the borrower’s ability and standing to challenge a foreclosure based upon an allegedly defective assignment or transfer of the note and deed of trust (either before or after the trustee’s sale). How the Court resolves theYvanovaappeal and the related cases could have huge impact on nonjudicial foreclosures in California; on titles to real property; and on litigation over nonjudicial foreclosure sales.
The Supreme Court’s resolution of the issues will be critical.
That is, after a trustee’s sale, will the Glaski rule apply only where the assignment is void rather than voidable?
Does a borrower have to suffer actual damages and be prejudiced from the defect in the assignment?
Many cases observe that the foreclosure itself is not the borrower’s damages where the payment default is admitted and the borrower cannot allege he/she can cure the default.
Hopefully, the Supreme Court will require as a condition to any challenge to assignments and/or chain of title that the borrower be able to show actual damage and prejudice – i.e., that the defendant’s conduct caused the harm to the borrower, not the borrower’s default; and that but for the defendant’s conduct, the borrower could have cured the default and stopped the foreclosure. We can expect the Supreme Court’s opinion in Yvanova mid-2015.
1Cal. Court of Appeal, 5th Dist.
Note by blogger herein: ..all emphasis added........ we noted that in the sentence in blue directly above, "but for D's conduct the borrower could have cured the default...." it assumes that the borrower actually did default. If in fact, the servicer/lender put borrower into default by failing to credit payments made/shown with proof, while ignoring borrower's attorney for over a year, and then servicer Chase Bank quit claims alleged title to Fannie Mae, when there was no foreclosure sale, it is rather apparent that conduct as just mentioned, is fraudulent rather than negligent. We have personal knowledge of those facts.