OUR HUGE CONGRATULATIONS TO
ATTORNEY RICHARD ANTOGNINI, OF NORTHERN CALIFORNIA!!
An extremely well written, easy to understand and hard hitting appeal which was practically guaranteed to win this case. Contrary to many attorneys' belief that briefs should be long-winded and contain long sentences with complex wording, appeals are often written much more clearly if they are truly there to WIN. Remember in law school, Justice Cardozo's con law decisions were like a dream because they were READABLE. :)
PS--new case out of Riverside, 5/18/16 published, used Yvanova precedent!!!!
Sciarratta v US Bank........(see link on our site here)
Reversing the decision below..
..."We granted review in this case to decide one aspect of that question: whether the borrower on a home loan secured by a deed of trust may base an action for wrongful foreclosure on allegations a purported assignment of the note and deed of trust to the foreclosing party bore defects rendering the assignment void.
The Court of Appeal held plaintiff Tsvetana Yvanova could not state a cause of action for wrongful foreclosure based on an allegedly void assignment because she lacked standing to assert defects in the assignment, to which she was not a party.
We conclude, to the contrary, that because in a nonjudicial foreclosure only the original beneficiary of a deed of trust or its assignee or agent may direct the trustee to sell the property, an allegation that the assignment was void, and not merely voidable at the behest of the parties to the assignment, will support an action for wrongful foreclosure. Our ruling in this case is a narrow one....." (all emphasis added by blogger)
Note: Yvanova's case involved a demurrer--- "On multiple occasions, this Court has stressed: “The issue of leave to amend is always open on appeal, even if not raised by the plaintiff.” City of Stockton v. Superior Court, 42 Cal.4th 730, 746 (2007); Aubry v. Tri-City Hospital Dist., 2 Cal.4th 962, 970-971 (1992). The California Legislature has also made this principle the rule.
Section 472c of the Code of Civil Procedure provides: “When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.”
Based on these rules, the courts of appeal hold that a plaintiff can assert new legal theories and facts on appeal when seeking leave to amend: Contrary to longstanding rules generally precluding a party from changing the theory of the case on appeal a plaintiff may propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court “abused its discretion” in not granting leave to amend.
The plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Connerly v. State of California, 229 Cal.App.4th 457, 460 (2014), quoting Cooper v. Leslie Salt Co., 70 Cal.2d 627, 636 (1969) (citations omitted)." Cited from the Yvanova Reply Brief on Merits.
Yvanova's Reply Brief on Merits........
After a Published Decision by the Court of Appeal,
Second Appellate District, Division One Case No. B247188
*The published decision was later de-published, and the CA Supreme Court
decided to hear Yvanova and 2 other cases --Glaski‐related cases --(1) Yvanova v. New Century Mortgage Corp., 226 Cal. App. 4th 495 (Ct. App. 2014) (review granted August 27, 2014, Case No. S218973); (2) Keshtgar v. U.S. Bank, N.A., 226 Cal. App. 4th 1201 (Ct. App. 2014) (review granted October 1, 2014, Case No. S220012); (3) Mendoza v. JPMorgan Chase Bank, N.A., 228 Cal. App. 4th 1020 (Ct. App. 2014) (review granted November 12, 2014, Case No. S220675)
APPELLANT’S REPLY BRIEF ON THE MERITS Richard L. Antognini, (CA Bar No. 075711) LAW OFFICES OF RICHARD L. ANTOGNINI 819 I Street Lincoln, California 95648-1742 Attorneys for Plaintiff and Appellant TSVETANA YVANOVA
...What others said before the FINAL decision....
California Considers Significant Changes To Residential Foreclosures
Let it be known that it appears that Brian Cave (the attorney group in San Francisco) argued the Yvanova case against Yvanova................and Brian Cave did NOT win.............
GREAT NEWS BECAUSE WE ARE NO FAN OF THE BRIAN CAVE LAW FIRM!!!
More front page news on same big California ruling!!
More front page news on same big California ruling!!
Calif. Supreme Court Lets Borrowers Challenge Wrongful Foreclosures
The California Supreme Court on Thursday ruled that borrowers may challenge a wrongful foreclosure on the grounds that the assignment of the deed of trust was invalid.
The decision in Yvanova v. New Century Mortgage Corp. has the potential to radically increase the number of lawsuits brought by borrowers, particularly on loans that were pooled into securitized trusts, experts on both sides of the issue said.
"There will be a flood of litigation only because the lending industry was not diligent in doing its paperwork during the housing finance boom," said Richard Antognini, who represented the plaintiff, California homeowner Tsvetana Yvanova.
The decision tackles a question that became important after the housing market's collapse in 2008: can a defaulted homeowner contest the validity of the chain of assignments involved in the securitization of loans?
In 2012 Yvanova challenged the foreclosure and public auction of her Woodland Hills, Calif., home, alleging there was a four-year break in the chain of title, essentially making it void.
Yvanova in 2006 took out a loan for $483,000 from Irvine, Calif.-based New Century Mortgage, which went bankrupt the next year. In 2011 the mortgage servicer Ocwen Loan Servicing executed an assignment of the deed of trust on Yvanova's loan to Deutsche Bank, which served as a trustee of a Morgan Stanley investment trust.
But Yvanova alleged that the Morgan Stanley investment trust had a closing date of January 2007 and should never have been assigned the mortgage. But the foreclosure went through, and Yvanova ultimately was evicted in May 2015.
Multiple lower courts in California had ruled in high-profile cases such as Jenkins v. JPMorgan Chase that borrowers have no standing to file a claim of wrongful foreclosure because they are not a party to or holder of the debt.
However, the state Supreme Court disagreed with those rulings and essentially sided with a 2013 state appellate ruling in Glaski v. Bank of America, which held that a borrower has standing to challenge a nonjudicial foreclosure sale based on alleged violations of the terms of a pooling and servicing agreement.
"The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security," the Supreme Court stated in a 33-page ruling. "A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity's hands. No more is required for standing to sue."