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Thursday, April 16, 2015

Glaski was not Depublished, though Banks Requested it; BUT Yvanova was, where Court used Jenkins v JP Morgan Chase

Perhaps following Jenkins, which pre-dated Glaski, was probably not the thing to do after looking at Glaski, and the 3 cases that are going to be involved in the Supreme Court decision which may come out in November.  Since Yvanova will lead, it will likely determine  by compare/contrast, how the other 2 cases are situated. (Opening brief by attorney Antonini for Yvanova at end below)

This is clear:
1.  Banks clamored to have Glaski "depublished."  The Court refused.
2.  Yvanova lost her case, and banks clamored to have it PUBLISHED. The Court agreed.
3.  Yvanova (a pro se, with admittedly not-so-great-complaint)  sought review of narrow issue, and the Court accepted review, resulting in Depublication of Yvanova.

Maybe even if the Supreme Court does not come to conclusion that standing (which is normally jurisdictional) can actually be tested, in at least a small percent of the cases,  the fact is that in some unusual cases, the banks most definitely did not own the property they are taking, but they get away with it. Robo signing, and other issues may not cause prejudice to the owner, and maybe it's true, owner could not pay the mortgage.

But we have seen cases for example, when owner  (1) did reinstate the entire amount owed (thus no tender issue) and the servicer (2)  refused to credit the amount and never returned the payment. Servicer also stopped sending payment statements.

That is not just negligence because it was done on purpose. By purposely not returning the payment and/OR rejecting it, BUT still filing a rescission at county recorder's,[indicating payment had been made] yet then continuing to pretend the payment was not received and thus never credited is simply NOT negligence.
By then claiming the outstanding balance just grew higher and higher and bank refused to take further payments--that is not negligence, but far worse. However, Judge stated there was negligence (at very least) and case  continued and amendment allowed on other issues.   Keeping an owner in perpetual default on purpose when lender had filed rescission upon the reinstatement, and then refusing further payments is way, way, way out there. It's not legal obviously but we have seen it done. And lender did not have proof of ownership since it was a Wamu property. Which is why they handled it like what was just described.  Chase did not own the property, they claim they sold it or gave it away to Fannie Mae. Regardless of what they did, or even regardless of who owned it, the case was about the most blatant and egregious we have ever seen. Clearly, this case should not get tossed out because the owner had done nothing wrong, but the bank/servicer/whomever they claimed owned it, did everything they could to force owner to modify the loan. Owner was not interested in modification and never was.

But something should be very wrong when the wrong party is allowed to, can actually do it, and does-- take one's real property, and doesn't even have to own it. Because California is a non judicial foreclosure state, we never really had such big issues until the real estate meltdown. We all believed that the paperwork was there, until time came that millions were losing their houses, after many mortgages were simply resold many times over to investors, when the defaults piled up, banks didn't have the paperwork. So that faked it to make it, and that's exactly what they did.

At least if there is some decision that would stop the small amount of cases where the banks never owned the property and banks can't prove they own it, and owner had owned it for some time, why should the bank take it, considering they don't own it?  How would the bank own it any more than the owner?  The courts can slice and dice the facts many ways, using no tender, no prejudice, no whatever. But when banks are shown to have engaged in actual conduct which is clearly not reasonable , ethical, or proper, and the conduct is possibly errant, misrepresented or outright illegal, courts should not condone behavior of that type. Owner would be prejudiced by any misrepresentation or errant, illegal conduct, abuse of process, even malicious prosecution if it went that far. (We have seen a case go that far!)

CLICK HERE TO VIEW YVANOVA'S OPENING BRIEF FOR CA SUPREME COURT:

https://livinglies.files.wordpress.com/2015/03/yvanova2014-opening-brief.pdf

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http://consumerfinancewatch.com/2015/01/16/california-supreme-court-grants-petition-for-review-of-three-court-of-appeal-cases-rejecting-glaski-v-bank-of-america/

The YvanovaKeshtgar and Mendoza Appellate Courts all rejected the Glaski holding on the basis that a borrower lacks standing to challenge defects in an assignment to a deed of trust when the borrower is not a party to the transaction, regardless of whether the assignment is void. 
The Glaski defendants subsequently petitioned the California Supreme Court to have the opinion depublished, but the petition was denied.See Glaski v. Bank of America (Supreme Court No. S213814), depublication request denied Feb. 26, 2014.
The Yvanova Appellate Court ruled on several legal theories before deciding in favor of the defendant. *[Although Yvanova was published, when the CA Supreme Court agreed to review the case on a narrowed issue re standing to challenge assignment on alleged void--the Supreme Court depublished the case; the Yvanova previously published appellate case is no longer a published case that can be cited.]
The California Supreme Court, however, has limited the issue to whether, “[i]n an action for wrongful foreclosure on a deed of trust securing a home loan, … the borrower ha[s] standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void.”Yvanova, 331 P.3d at 1275.

//**Note: It would be blogger's view, that by forcing a narrow issue, the case holding can then be specifically tailored to the one case's specific facts. If in fact the Court found that the standing challenge was present, and should have been allowed, it would be only on the facts of the case, which would not like likely apply to every case out there. We have seen cases where it is obvious that there is no ownership proven by lender; lender is not usually original lender, and may be in a line of three to five subsequent alleged lenders who claim to own the property.  If you have ever viewed purported corporate deeds assigned around the world and then they end up back where they started, and all the players are really one corporation with various subsidiary names, it's fairly obvious that someone is playing games. In meantime, the actual property title was packaged and sold and long gone years ago to who knows who? Investors.  Then when corporate bank frantically emails, claiming that the corporation had an agreement that the agent, not the bank, was the person in charge of the ownership documents, one can see that even the banks are not wanting to be responsible for assigning any responsibility for ownership.  We only found that out after looking at cases that would make your head spin.//

The Supreme Court deferred further action on Keshtgar  and  Mendoza pending disposition of YvanovaKeshtgar, 334 P.3d at 686; Mendoza, 337 P.3d at 493.




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