Global Literary Marketplace Foreclosure Fraud Defense by Grace Adams

1. August 2013

Glaski v. Bank of America – DeBrunner Must Die – Supplement to just mailed Glaski Opinion – From Attorney Who Won the Opinion‏

this snippet below summarizes the strength of the so-called split-note theory over show-me-the-note.

it is not enough to say “where is the note?” but it IS enough to say “if the note is with A, then how can B foreclose?”

this foreshadows the on-rushing death of DeBrunner…

PDF: Glaski Court of Appeal opinion 7-31-2013

PDF: Glaski Second Amended Complaint

PDF: Skov Publication Request

“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 true beneficiary 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.)”

To everyone:

Earlier today, Catarina Benitez and I won an appeal in a wrongful foreclosure case, Glaski v. Bank of America. The opinion is from the Fifth District, but it is unpublished (so far). I attach a copy of the opinion.

Briefly, 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.)
CA Supreme Court Glaski v. Bank of America CA5, F064556

Glaski Court of Appeal opinion 7-31-2013

The opinion, as noted, is unpublished. If it gets published, it will will be groundbreaking, as it establishes for the first time that you can challenge the power of a securitized trust to foreclose. We can write a letter to the court of appeal asking it to publish the opinion. I put two questions to the group: Should we request that the opinion be published and, if so, on what grounds? Thanks.

This case was won because, before Catarina filed the second amended complaint, she did factual research that showed the Glaski loan was not properly assigned to the securitized trust. That specific, factual allegation is what you need to state a claim under the Glaski v. Bank of America opinion.

I find footnote 4 of the opinion particularly amusing: “Another possibility, which was acknowledged by both sides at oral argument, is that the true holder of the note and deed of trust cannot be determined at this state of the proceedings. This lack of certainty regarding who holds the deed of trust is not uncommon when a securitized trust is involved.” Glaski v. Bank of America, slip opinion at page 5, note 4. This came up during oral argument when Justice Wiseman asked me who we thought held the loan. I replied that I had no idea and neither did the defendants. I speculated that the WaMu trustee in bankruptcy may hold title. When the Chase lawyer got up to argue, she was asked the same question. She replied that her clients did not know who held the loan. In rebuttal, my first comment was to repeat what she had said and say that was the end of Chase’s case.

Richard L. Antognini
Law Offices of Richard L. Antognini
819 I Street
Lincoln, California 95648-1742
Telephone: (916) 645-7278
Facsimile: (916) 290-0539
E-mail: rlalawyer@yahoo.com

Powered by WordPress