Monthly Archives: February 2014

Financial Halo

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT OPINION ORDERED PUBLISHED ON 8/8/13 Re: Borrower May Challenge The Securitized Trust’s Chain of Ownership

THOMAS A. GLASKI, v. BANK OF AMERICA N.A OPINION ORDERED PUBLISHED on 8/8/13 Author: Franson, Jr., Donald R.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT OPINION ORDERED PUBLISHED ON 8/8/13

DOWNLOAD THE COMPLETE DOCUMENT HERE (30 pages, PDF).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT OPINION ORDERED PUBLISHED ON 8/8/13

Re: Borrower May Challenge The Securitized Trust’s Chain of Ownership

Glaski v. Bank of America, N.A.

Case Number F064556

The judgment of dismissal is reversed. The trial court is directed to vacate its order sustaining the general demurrer and to enter a new order overruling that demurrer as to the third, fourth, fifth, eighth, and ninth causes of action. Glaski's request for judicial notice filed on September 25, 2012, is denied. Glaski shall recover his costs on appeal; Franson, Wiseman, Kane; 29 pages.

Opinion ordered published on 8/8/13

Publication Status: Signed Published

Author: Franson, Jr., Donald R.

Participants: Wiseman, Rebecca A. (Concur)

Kane, Stephen J. (Concur)

The allegations that the instant case shares with some of the other lawsuits are that (1) documents related to the foreclosure contained forged signatures of Deborah Brignac and (2) the foreclosing entity was not the true owner of the loan because its chain of ownership had been broken by a defective transfer of the loan to the securitized trust established for the mortgage-backed securities. Here, the specific defect alleged is that the attempted transfers were made after the closing date of the securitized trust holding the pooled mortgages and therefore the transfers were ineffective.

In this appeal, the borrower contends the trial court erred by sustaining

defendants’ demurrer as to all of his causes of action attacking the nonjudicial

foreclosure.

Glaski argued that the investment trust that supposedly held his loan did not have the power to foreclose because his loan had never been properly transferred to the trust. The court of appeal held that this allegation was enough to state causes of action for wrongful foreclosure, declaratory relief, violation of the UCL, cancellation of instruments, and quiet title.

In particular, the court held: "We conclude that a borrower may challenge the securitized trust's claim to ownership by alleging the attempts to transfer the deed of trust to the securitized trust (which was formed under New York law) occurred after the trust's closing date. Transfers that violate the terms of the trust instrument are void under New York law, and borrowers have standing to challenge void assignments of their loans even though they are not a party to, or a third party beneficiary of, the assignment agreement." (Glaski v. Bank of America, slip opinion at page 3.)

The court then stated: "In Barrionuevo v. Chase Bank, N.A. (N.D. Cal. 2012) 885 F.Supp. 964, the district court stated: 'Several courts have recognized the existence of a valid cause of action for wrongful foreclosure where a party alleged not to be the true beneficiary instructs the trustee to file a Notice of Default and initiate nonjudicial foreclosure.' (Id., at p. 973). We agree with this statement of law, but believe that properly alleging a cause of action under this theory requires more than simply stating that the defendant who invoked the power of sale was not the true beneficiary under the deed of trust. Rather, a plaintiff asserting this theory must allege facts that show the defendant who invoked the power of sale was not the true beneficiary." (Glaski v. Bank of America, slip opinion at page 17; italics added.)

The court added: "We reject the view that a borrower's challenge to an assignment must fail once it is determined that the borrower was not a party to, or a third party beneficiary of, the assignment agreement." (Glaski v. Bank of America, slip opinion at page 19.)

Next, the court distinguished Gomes v. Countrywide Home Loans, 192 Cal.App.4th 1149 (2011): "In light of the limiting statements included in the Gomes opinion, we do not interpret it as barring claims that challenge a foreclosure based on specific allegations that an attempt to transfer the deed of trust was void. Our interpretation, which allows borrowers to pursue questions regarding the chain of ownership, is compatible with Herrera v. Deutsche Bank National Trust Co. . . ." (Glaski v. Bank of America, slip opinion at pages 24-25; italics added.)

Finally, the court disposed of the tender argument: "Tender is not required where the foreclosure sale is void, rather than voidable, such as when a plaintiff proves that the entity lacked the authority to foreclose on the property." (Glaski v. Bank of America, slip opinion at page 25.)

We therefore reverse the judgment of dismissal and remand for further proceedings... DOWNLOAD THE COMPLETE DOCUMENT HERE (30 pages, PDF).