Glaski, Erobobo, Saldivar: Red-Herring Foreclosure Defeats for PSA Flouters

Glaski, Erobobo, Saldivar Brouhaha

Securitization haters have gone giddy or berserk with the news of the Glaski, Erobobo, and Saldivar opinions denouncing foreclosure on the basis of broken chain of assignment of the note.  Courts have said assignment into the securitization trust did not occur because it missed the cutoff date prescribed in the Pooling and Servicing Agreement (PSA).

Someone do a securitization audit, QUICK!

Securitization audit scammers absolutely LOVE this news because now they can more easily con foreclosure victims into wasting hard-earned money on overpriced and useless securitization audits.

My comments below show why the subject opinions constitute nothing more than red herrings.  I also show the only way to WIN against the banks in a foreclosure situation.

For reference, see these opinions from Texas, California, and New York:

• Saldivar - http://scholar.google.com/scholar_case?case=17032488610176060422
• Glaski - http://www.courts.ca.gov/opinions/documents/F064556.PDF
• Erobobo - http://scholar.google.com/scholar_case?case=10786261344843042275

We Don't Live in an Ideal World

Actually, I believe in the ideal of a clean and tight chain of owners of beneficial interest (OOBIs) in the note.  But, we don't live in an ideal world.  To wit:

1. Often the loan originator has become bankrupt and no longer exists. 

2. And then the buyer of the originator's assets and liabilities has no ability to testify as to the cleanliness of the origination. 

3. Let us not forget that the REASON to examine the mortgage and related documents inheres in the reality that lenders and their agents have cheated 9 out of 10 single family home mortgagors, rendering the note void or voidable, and thereby undoing the mortgage.

   Someone do a mortgage examination, QUICK!

4. And then there's the philosophic question of how anybody could track the chain of OOBIs for a note indorsed in blank which anybody holding it can enforce. 

5. And even if someone can properly track that OOBI chain throughout the life of the note, OOBIs in the chain might have violated myriad laws and contracts (starting with the note itself) in the process of transferring ownership. 

6. In fact, some OOBIs might have stolen the note or found it "in a ditch" the way I found some things as an unruly teen scofflaw.  Oh, wobbly woes.

UCC to the Rescue

You see, folks, the UCC in Article III Part 3 makes short shrift of many of these concerns by allowing enforceability of the note in spite of OOBI-related confusion.  Right.  Read this (from the Florida Statutes UCC) and weep, Glaski, Erobobo, and Saldivar:

673.3011 Person entitled to enforce instrument.—The term “person entitled to enforce” an instrument means:

(1) The holder of the instrument;

(2) A nonholder in possession of the instrument who has the rights of a holder; or

(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s.673.3091 or s. 673.4181(4).

A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

You see, while I have used the term OOBI for simplicity, the UCC uses the term "HOLDER" because it does not matter who OWNS the note, because

1. the HOLDER can enforce it, and
   
2. so can a nonholder possessor, and
   
3. so can a nonholder nonpossessor, and
   
4. so can a non-OOBI, and
5. so can a possessor finder or thief.
   

I'll save you the trouble of reading the UCC on enforceability of bearer instruments like mortgage notes indorsed in blank.  You know what it provides.

Cool, huh?  Curious how Glaski's CA 5th District appellate panel didn't quite get those nuances of enforceability.  In particular, an assignment from one entitled to assign it HAS validity.  And assignment to the trustee for the benefit of certificate holders in violation of the PSA becomes an assignment to the trustee in its personal capacity. The assignment happened.  It just did not happen as intended.  And that's why so many courts have shunned the bogus "assignment did not occur" theory of the rulings in question.

The Common Sense of a Mortgage Exam

If we philosophers want to become fastidious, pedantic, anal-retentive sticklers regarding note enforcement, we ought also to become even more anal about determining and challenging the validity of the note. 

I promote a comprehensive mortgage examination service by a competent professional knowledgeable in law for PRECISELY that reason.

A good mortgage exam can result NOT ONLY in proving the void or voidable nature of the mortgage note in a settlement negotiation or in court, but also in a HUMONGOUS award of compensatory and punitive damages and legal fees and costs related to exposure of the breaches, errors, fraud and other torts underlying the mortgage. See this stark example of the benefits of the methodology.

NO securitization audit can ever bring such a benefit.  Well, honestly, a securitization audit cannot bring any benefit at all, as I see it, particularly not in contrast to a comprehensive. professional mortgage examination.

Do you see the beauty of the mortgage exam yet?  By proving that the loan had fraud at its base, the mortgage victim opens the door to monumental monetary awards and possibly to rescission of the loan and getting the house free and clear, while stopping the foreclosure dead in its tracks.  Securitization audits and arguments cannot open that door at all, not even a tiny little crack, not even a teeny weeny peep hole.

The mortgage exam exposure of fraud in the mortgage itself can blow the foreclosure into oblivion with no effort at all, and obliterate any reason to peer into the murky smog of the OOBI chain.

Validity Matters More than OOBI Chain

Back to the main point here.  Regardless of the relevance of assignments in the OOBI chain,  NOTHING has relevance like the validity of the note itself.  And only a comprehensive mortgage examination can provide the mortgagor with the tactical nuke that will prove invalidity of the note and blow that OOBI chain and foreclosure to smithereens.

If Glaski's lawyer had only understood this, Glaski would probably have his house free and clear now.

Ultimate Result in Glaski, Erobobo, Saldivar

Okay, okay, I know you want to talk about Wells Fargo v Erobobo and In re Saldivar, both of which, like Glaski, deal with non-compliance with the Pooling and Servicing Agreement.  SO, let's talk.

First of all, take note that courts all over the USA have spurned the legal theory that the PSA has ought to do with the validity of OOBI assignments of the note.  I have cited some in a prior article.  But you can conclude from the paucity of appellate opinions like that in Glaski that similar approaches generally fail.

Second, what do you suppose will happen in any or all of these cases if the bank pursues them to the ultimate end?  Do you think the mortgage and the foreclosure will suddenly disappear forever? Do you imagine the mortgagor's signatures on note and mortgage mean nothing or that the court or trustee will not eventually force forfeiture of the mortgaged collateral, the HOUSE?

If you do, guess again.  Just like Judge Shack's and Boyko's foreclosure complaint dismissals in New York and Cleveland in bygone years, plaintiffs will correct their paperwork and refile.  Every one of those foreclosures will go through to completion, and the trustee or court will kick the mortgagors out of their homes, AS THEY SHOULD.  Or the mortgagor will stupidly take a scam loan mod in which they indemnify the lender for past injuries by the lender.

Why the FCIC Report Can't Rescue

My use of the phrase "as they should" does not mean I endorse the widespread predatory lending and destruction of homeowner equity over the past decade, still in full swing through loan modification programs.  It simply means that the mortgagor must proffer evidence that the mortgagee's specific predatory acts injured the borrower as part of the predatory lending and mortgage meltdown conspiracy. 

I don't know of anyone who has successfully done that.  Getting a court to acknowledge it in rulings beneficial to mortgagors has about as much chance as getting them to acknowledge that descendants of Mayer Amschel Rothschild engineered the Federal Reserve System, own the Federal Reserve Banks, and caused the assassination of JFK.

Who in his right mind would encourage broke foreclosure victims to fight a half-decade battle against foreclosure only to lose the house in the end at great expense in time, money, and mental stress?  I certainly will not advocate that.

I wish I could advocate attacking the lenders and government for the predatory lending scheme wreaked upon America through the past 15 years, but I consider the battle as  losing and any victory Phyrric.

The ONLY Opportunities for Glaski, etc

Regarding the very subject line of this message,  Erobobo, Saldivar, and Glaski provide these opportunities:

1. Scam lenders will sell loan modifications to the foreclosure victims after the mortgagee corrects the paperwork and comes back to hammer the victims with foreclosure again; 

2. Scam securitization auditors will con hapless foreclosure victims into wasting money on useless audit reports.

Those rulings provide NO OTHER opportunities UNLESS Saldivar, Erobobo, Glaski, and others like them get their mortgages comprehensively examined for causes of action in the loan itself.  Then the victims can turn the opportunity into an award or settlement in the form of a low-balance refinance, cash, or the house free and clear.

Because of the wasted energy, time, and money by Glaski, Erobobo, and Saldivar, I consider their temporary defeats of foreclosure as nothing more than Red Herrings.

My Choice of Method, and Why

For all of the foregoing reasons, I have settled rationally on this method:   attack the validity of the individual mortgage loan as follows:

1. Get a comprehensive mortgage examination by a competent professional who has knowledge of all the related areas of law AND consummate litigation skill.  Then,

2. Use the discovered causes of action to force a settlement for money or refinance, or sue for compensatory and punitive damages and legal fees and costs.

3. If no causes of action exist, walk from the house as you should, with a short-sale or deed-in-lieu-of-foreclosure deal.

4. Do not EVER accept a loan modification, for all are just scams to increase your debt, increase the likelihood of foreclosure, and deprive you of the right to sue over prior predatory lending injuries.

If anybody can find any fault with my choice of methods, please let me know and show me some proof of the fault.

Meanwhile, any who want to discuss how to avail themselves of a comprehensive mortgage exam by a renowned professional examiner with consummate knowledge of related law and 35 years of winning litigation experience, may contact me immediately for a FREE consultation, and tell me your story.  I charge no money. I don't work for a living.  I have no business relationship with any service provider.  I have no vested interest in your success or failure.  I do not practice law or anything else except guitar.  I like to help people.  And I don't hide.

727 669 5511.  bob at (you guessed it) bob hurt dot com

--

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Bob Hurt         Blog 1 2 3   f  t   2460 Persian Drive #70 Clearwater, FL 33763 Email; Call: (727) 669-5511 Law Studies: Donate   Subscribe Learn to Litigate with Jurisdictionary

 

Glaski v BOA - Glaski's phyrric and short-lived foreclosure defense victory - revised

Glaski v BOA

See the excerpts from unpublished Glaski v BOA opinion by the California 5th District Appellate Court below. Pursuant to borrower Glaski's complaint of robo-signing and wrongful trustee's foreclosure and sale, and demand for quiet title and cancellation of the foreclosure and sale, the trial court dismissed the Glaski's complaint that the assignment of the note to the securitization trust had no validity because it occurred after the closing date of the trust, and so BOA had no standing to foreclose.  The appeals court overturned and remanded it because the assignment had no validity under New York law and the assignment occurred after the closing date.

MY OPINION 

The appeals court ruling is an anomaly, and it will not stand if BOA pursues it to the Supreme Court.

As I see it, transfer of beneficial interest in a mortgage note never goes to a trust.  It only goes to a trustee.  The holder in due course can transfer it by indorsing it in blank or by assignment. 

The borrower never became a party to the PSA, and nothing in the securitization injures the borrower.  The mortgage mandates that the borrower must forfeit the house for defaulting on the loan, and the public trustee and courts constitutionally must enforce that provision. 

Since the trustee personally owns beneficial interest in the note, any PSA or REMIC violation may affect the validity of the trust or prevent entry of the note into the trust's asset base, but it does not undo the assignment to the trustee or indorsement in blank. 

The Supreme Court will uphold the Glaski trial court judgment if it hears the case..  Whining about assignment after the closing date is a bogus argument because the TRUSTEE OWNS BENEFICIAL INTEREST IN THE NOTE, regardless of whether or not the trust operates as planned by the PSA.

New York law can declare the assignment to the Trustee invalid for the purposes and use of the trust, but not for the purposes of mere assignment of beneficial interest to some lawful entity.  Normally a bank has become the "trustee" under the PSA, so the note's beneficial interest becomes the property of the bank in its personal capacity, even though, owing to tardiness, not in the trustee capacity.  And that gives the bank the right to enforce the note regardless of whether it received the note in violation of the PSA or past the trust's closing date.

To grasp the issue in the light of common sense, imagine an indorsement in blank.  Physical possession of such an indorsed note constitutes ownership of beneficial interest and the power to enforce the instrument.This remains true whether or not the possessor has trustee status, functions as a bank which enjoys other rights to buy and sell beneficial interest in notes in its personal capacity, functions as a lawful man or woman, functions as a thief, functions as someone who won the note in a bet, or functions as someone who found in lying in a ditch.  Article III of the UCC covers all those types of lawful enforcers of the note, and no court has authority to undermine it.

The Glaski trial court rightly dismissed the nonsensical complaint from the borrower.  The appeals court opined erroneously AND controversially (a good reason for not publishing its opinion).  If the Supreme Court gets the case, the Supreme Court will validate the trial court's ruling.  Meanwhile, no telling what surprises the trial court will come up with in remand. 

I predict a short life for Glaski's phyrric victory.  I consider the proceedings in trial and Appeal court a farce in contrast to what it could become.  First of all, BOA can correct the paperwork deficiencies and re-foreclose and take the house as it should have to begin with.  Second, the borrower, Glaski, probably did not get his mortgage comprehensively examined for torts, breaches, and errors that would have given him causes of action in breach of contract or tort claims against the lender WAMU (and the banks that inherited its liabilities and assets).  Glaski might actually negotiate a favorable settlement by grieving to the servicer about those causes of action and demanding correction.  In that way he could have avoided the expense in time and money of the litigation he will ultimately lose along with his house.

Sure, he might outlast the bank in his present contest, but I doubt it.

To grasp the concept of properly beating foreclosure, realize that statistically the foreclosing bank ALWAYS gets the house, with good reason:  the mortgagor BREACHED the mortgage note, and must forfeit the collateral.  State constitutions mandate that no law shall impair the obligations of contract.  For example:

http://www.leginfo.ca.gov/.const/.article_1
CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS
SEC. 9. A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.

Therefore, one best beats foreclosure by NOT FIGHTING THE FORECLOSURE BATTLE.

Instead, one should get the mortgage examined, and FIGHT THE MORTGAGE BATTLE instead, based on the causes of action found, or walk from the house with knowledge the the foreclosure is righteous, regardless of robosigning, improper assignment, etc, WILL ALWAYS PREVAIL, and the foreclosure sale will go through to completion.

See the above Section 9 in the proper light.  "obligation of contracts" refers only to VALID contracts.  That means the parties must have the capacity to contract, the contract must have a conscionable, it must include offer, acceptance, and consideration, it must not operate as a function or consequence of fraud or fraudulent inducement, the parties must have the ability to perform the contractual obligations, the contract must not require illegal acts or operate in violation of law.  As to enforcement, the enforcer must have the right and power to enforce it under applicable laws and terms of the agreement.  If the contract is a negotiable instrument, the UCC Article III and possibly VIII control enforcement and other features of the instrument.

Other Opinions

Don't just take my word for it.  Other opinions in California and elsewhere fly in the face of the Glaski reversal, and that leaves other courts free to take either position.  Some examples follow:

1. Ca: Almutarreb v. Bank of New York Trust Co., N.A., 2012 WL 4371410, *2 (N.D. Cal. Sept. 24, 2012) ("holding that "because Plaintiffs were not parties to the PSA, they lack standing to challenge the validity of the securitization process, including whether the loan transfer occurred outside of the temporal bounds prescribed by the PSA.");

2. Lane v. Vitek Real Estate Industries Group, 713 F.Supp.2d 1092, (E.D.Cal. 2010) ("The argument that parties lose interest in a loan when it is assigned to a trust pool has also been rejected by numerous district courts.");

3. Sami v. Wells Fargo Bank, 2012 WL 967051, at *5-6 (N.D. Cal. 2012) (rejecting claim "that Wells Fargo failed to transfer or assign the note or Deed of Trust to the Securitized Trust by the 'closing date,' and that therefore, 'under the PSA, any alleged assignment beyond the specified closing date' is void" because the plaintiff lacked standing)
   

4. Fourth District Court of Appeal in Jenkins v. JP Morgan Chase Bank, 216 Cal.App.4th 497 (2013), reached opined opposite to Glaski: “As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, Jenkins lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, relating to such transactions.”
   

Furthermore, well-settled California law generally precludes a non-party to a contract from challenging its validity or the validity of actions pursuant to it.  This and the unpublished nature of the opinion (as ordered by the 5th District) means one should interpret the Glaski opinion as anomalous, rather than relying on it as precedent.

See the Light of a Comprehensive Mortgage Examination

So the proper strategy for a mortgagor to beat foreclosure lies in proving that some combination of torts, breaches, and errors underlie the contract, making it either void or voidable.  Then the borrower needn't worry about enforcement, for government must NOT enforce a void, invalid, or voidable contract.

So, we have two possible battles in the mortgage world:

1. Mortgagor (borrower) Always Wins: 
   

• Battle the Mortgage based on torts, breaches, errors by the lender or lender's agents

2. Mortgagee (lender/bank) Always Wins

• Battle the Foreclosure based on breach by borrower. 

By "always wins" I mean "statistically always," meaning exceptions, as in Glaski, have almost the rarity of chicken teeth or frog hair.

Furthermore, when a mortgagor or mortgagor's attorney writes a grievance letter to the servicer detailing torts, breaches, and errors revealed in the mortgage examination report, they usually reach a settlement accord fairly quickly. That reduces the stress on and expense to the borrower dramatically, and often results in a cram-down of the loan balance to the present value of the house and refinance at favorable fixed interest for 30 years.  Mortgagors can often afford such payments.

And if the mortgagor must sue to get satisfaction from the lender for injuries and damages, the mortgagor will usually win compensatory damages and legal costs and fees from the bank.  Sometimes the mortgagor will win punitive damages, occasionally in the millions of dollars.

Seen in this light, Glaski's 4-year foreclosure battle against BOA becomes utterly stupid, for any student of foreclosure battles knows that Glaski will ultimate lose unless the bank just gives up.  His victory will probably have a short life.  And it is at this point only hopeful, and Phyrric, at that, becuase of the cost to Glaski and family in terms of stress, worry, money, time, and other resources.

Statistically, the ONLY way to prevent foreclosure lies in procuring a comprehensive, professional mortgage examination, followed by a settlement demand or lawsuit based on the causes of action revealed in the exam report.

How to Get Your Mortgage Professionally Examined for Causes of Action

If you need such an examination, providing you actually WANT to beat the bank, call me at 727 669 5511.  I'll explain everything to you FREE, and introduce you to America's most competent mortgage examiner, a man with over 35 years' experience in examining legal documents and formulating winning litigation strategies.

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Bob Hurt         Blog 1 2 3   f  t   2460 Persian Drive #70 Clearwater, FL 33763 Email; Call: (727) 669-5511 Law Studies: Donate   Subscribe Learn to Litigate with Jurisdictionary

 

Court Opinion

http://victoryoverchase.blogspot.com/2013/08/ground-breaking-case-in-california.html

Glaski v. Bank of America was decided in the California Supreme Court, Court  on July 30, 2013. The case was referred back to the lower court for further action.  The Court reversed the judgment for dismissal.

This decision as of now is not to be published in the official reports.  Interested parties have only 20 days to petition the Court for publication of this ground breaker for Californians seeking justice, particularly those suffering at the hands of Washington Mutual Bank FA, JP Morgan Chase Bank NA, and their minions which include Deborah Brignac, California Reconveyance Company. and Bank of America.

2013 California Rules of Court

Rule 8.1120. Requesting publication of unpublished opinions

(a) Request

(1)Any person may request that an unpublished opinion be ordered published.

(2)The request must be made by a letter to the court that rendered the opinion, concisely stating the person's interest and the reason why the opinion meets a standard for publication.

(3)The request must be delivered to the rendering court within 20 days after the opinion is filed.

(4)The request must be served on all parties.

(b) Action by rendering court

(1)If the rendering court does not or cannot grant the request before the decision is final in that court, it must forward the request to the Supreme Court with a copy of its opinion, its recommendation for disposition, and a brief statement of its reasons. The rendering court must forward these materials within 15 days after the decision is final in that court.

(2)The rendering court must also send a copy of its recommendation and reasons to all parties and any person who requested publication.

(c) Action by Supreme Court

The Supreme Court may order the opinion published or deny the request. The court must send notice of its action to the rendering court, all parties, and any person who requested publication.

(d) Effect of Supreme Court order to publish

A Supreme Court order to publish is not an expression of the court's opinion of the correctness of the result of the decision or of any law stated in the opinion.

Rule 8.1120 renumbered effective January 1, 2007; repealed and adopted as rule 978 effective January 1, 2005.

  

Glasky v. Bank of America

                                          INTRODUCTION

 Before Washington Mutual Bank, FA (WaMu) was seized by federal banking 

regulators in 2008, it made many residential real estate loans and used those loans as 

collateral for mortgage-backed securities.1

 Many of the loans went into default, which led to nonjudicial foreclosure proceedings. 

Some of the foreclosures generated lawsuits,  which raised a wide variety of claims. 

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 trustestablished 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. We conclude that, although the borrower’s allegations are somewhat 

confusing and may contain contradictions, heclosure claim under the lenient standards applied to demurrers. We conclude that a borrower may challenge the securitized trust’s chain of 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 trust 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. 

H. Causes of Action Stated

Based on the foregoing, we conclude that Glaski’s fourth cause of action has stated a claim for wrongful foreclosure. It follows that Glaski also has stated claims for quiet title (third cause of action), declaratory relief (fifth cause of action), cancellation of instruments (eighth cause of action), and unfair business practices under Business and Professions Code section 17200 (ninth cause of action).

We therefore reverse the judgment of dismissal and remand for further proceedings. 

Glaski v BOA - Glaski's phyrric and short-lived foreclosure defense victory

Glaski v BOA

See the excerpts from unpublished Glaski v BOA opinion by the California 5th District Appellate Court below. Pursuant to borrower Glaski's complaint of robo-signing and wrongful trustee's foreclosure and sale, and demand for quiet title and cancellation of the foreclosure and sale, the trial court dismissed the Glaski's complaint that the assignment of the note to the securitization trust had no validity because it occurred after the closing date of the trust, and so BOA had no standing to foreclose.  The appeals court overturned and remanded it because the assignment had no validity under New York law and the assignment occurred after the closing date.

MY OPINION 

The appeals court ruling is an anomaly, and it will not stand if BOA pursues it to the Supreme Court.

As I see it, transfer of beneficial interest in a mortgage note never goes to a trust.  It only goes to a trustee.  The holder in due course can transfer it by indorsing it in blank or by assignment. 

The borrower never became a party to the PSA, and nothing in the securitization injures the borrower.  The mortgage mandates that the borrower must forfeit the house for defaulting on the loan, and the public trustee and courts constitutionally must enforce that provision. 

Since the trustee personally owns beneficial interest in the note, any PSA or REMIC violation may affect the validity of the trust or prevent entry of the note into the trust's asset base, but it does not undo the assignment to the trustee or indorsement in blank. 

The Supreme Court will uphold the Glaski trial court judgment if it hears the case..  Whining about assignment after the closing date is a bogus argument because the TRUSTEE OWNS BENEFICIAL INTEREST IN THE NOTE, regardless of whether or not the trust operates as planned by the PSA.

New York law can declare the assignment to the Trustee invalid for the purposes and use of the trust, but not for the purposes of mere assignment of beneficial interest to some lawful entity.  Normally a bank has become the "trustee" under the PSA, so the note's beneficial interest becomes the property of the bank in its personal capacity, even though, owing to tardiness, not in the trustee capacity.  And that gives the bank the right to enforce the note regardless of whether it received the note in violation of the PSA or past the trust's closing date.

To grasp the issue in the light of common sense, imagine an indorsement in blank.  Physical possession of such an indorsed note constitutes ownership of beneficial interest and the power to enforce the instrument.This remains true whether or not the possessor has trustee status, functions as a bank which enjoys other rights to buy and sell beneficial interest in notes in its personal capacity, functions as a lawful man or woman, functions as a thief, functions as someone who won the note in a bet, or functions as someone who found in lying in a ditch.  Article III of the UCC covers all those types of lawful enforcers of the note, and no court has authority to undermine it.

The Glaski trial court rightly dismissed the nonsensical complaint from the borrower.  The appeals court opined erroneously AND controversially (a good reason for not publishing its opinion).  If the Supreme Court gets the case, the Supreme Court will validate the trial court's ruling.  Meanwhile, no telling what surprises the trial court will come up with in remand. 

I predict a short life for Glaski's phyrric victory.  I consider the proceedings in trial and Appeal court a farce in contrast to what it could become.  First of all, BOA can correct the paperwork deficiencies and re-foreclose and take the house as it should have to begin with.  Second, the borrower, Glaski, probably did not get his mortgage comprehensively examined for torts, breaches, and errors that would have given him causes of action in breach of contract or tort claims against the lender WAMU (and the banks that inherited its liabilities and assets).  Glaski might actually negotiate a favorable settlement by grieving to the servicer about those causes of action and demanding correction.  In that way he could have avoided the expense in time and money of the litigation he will ultimately lose along with his house.

Sure, he might outlast the bank in his present contest, but I doubt it.

To grasp the concept of properly beating foreclosure, realize that statistically the foreclosing bank ALWAYS gets the house, with good reason:  the mortgagor BREACHED the mortgage note, and must forfeit the collateral.  State constitutions mandate that no law shall impair the obligations of contract.  For example:

http://www.leginfo.ca.gov/.const/.article_1
CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS
SEC. 9. A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.

Therefore, one best beats foreclosure by NOT FIGHTING THE FORECLOSURE BATTLE.

Instead, one should get the mortgage examined, and FIGHT THE MORTGAGE BATTLE instead, based on the causes of action found, or walk from the house with knowledge the the foreclosure is righteous, regardless of robosigning, improper assignment, etc, WILL ALWAYS PREVAIL, and the foreclosure sale will go through to completion.

See the above Section 9 in the proper light.  "obligation of contracts" refers only to VALID contracts.  That means the parties must have the capacity to contract, the contract must have a conscionable, it must include offer, acceptance, and consideration, it must not operate as a function or consequence of fraud or fraudulent inducement, the parties must have the ability to perform the contractual obligations, the contract must not require illegal acts or operate in violation of law.  As to enforcement, the enforcer must have the right and power to enforce it under applicable laws and terms of the agreement.  If the contract is a negotiable instrument, the UCC Article III and possibly VIII control enforcement and other features of the instrument.

See the Light of a Comprehensive Mortgage Examination

So the proper strategy for a mortgagor to beat foreclosure lies in proving that some combination of torts, breaches, and errors underlie the contract, making it either void or voidable.  Then the borrower needn't worry about enforcement, for government must NOT enforce a void, invalid, or voidable contract.

So, we have two possible battles in the mortgage world:

1. Mortgagor (borrower) Always Wins: 
   

• Battle the Mortgage based on torts, breaches, errors by the lender or lender's agents

2. Mortgagee (lender/bank) Always Wins

• Battle the Foreclosure based on breach by borrower. 

By "always wins" I mean "statistically always," meaning exceptions, as in Glaski, have almost the rarity of chicken teeth or frog hair.

Furthermore, when a mortgagor or mortgagor's attorney writes a grievance letter to the servicer detailing torts, breaches, and errors revealed in the mortgage examination report, they usually reach a settlement accord fairly quickly. That reduces the stress on and expense to the borrower dramatically, and often results in a cram-down of the loan balance to the present value of the house and refinance at favorable fixed interest for 30 years.  Mortgagors can often afford such payments.

And if the mortgagor must sue to get satisfaction from the lender for injuries and damages, the mortgagor will usually win compensatory damages and legal costs and fees from the bank.  Sometimes the mortgagor will win punitive damages, occasionally in the millions of dollars.

Seen in this light, Glaski's 4-year foreclosure battle against BOA becomes utterly stupid, for any student of foreclosure battles knows that Glaski will ultimate lose unless the bank just gives up.  His victory will probably have a short life.  And it is at this point only hopeful, and Phyrric, at that, becuase of the cost to Glaski and family in terms of stress, worry, money, time, and other resources.

Statistically, the ONLY way to prevent foreclosure lies in procuring a comprehensive, professional mortgage examination, followed by a settlement demand or lawsuit based on the causes of action revealed in the exam report.

How to Get Your Mortgage Professionally Examined for Causes of Action

If you need such an examination, providing you actually WANT to beat the bank, call me at 727 669 5511.  I'll explain everything to you FREE, and introduce you to America's most competent mortgage examiner, a man with over 35 years' experience in examining legal documents and formulating winning litigation strategies.

​

Bob Hurt         Blog 1 2 3   f  t   2460 Persian Drive #70 Clearwater, FL 33763 Email; Call: (727) 669-5511 Law Studies: Donate   Subscribe Learn to Litigate with Jurisdictionary

 

Court Opinion

http://victoryoverchase.blogspot.com/2013/08/ground-breaking-case-in-california.html

Glaski v. Bank of America was decided in the California Supreme Court, Court  on July 30, 2013. The case was referred back to the lower court for further action.  The Court reversed the judgment for dismissal.

This decision as of now is not to be published in the official reports.  Interested parties have only 20 days to petition the Court for publication of this ground breaker for Californians seeking justice, particularly those suffering at the hands of Washington Mutual Bank FA, JP Morgan Chase Bank NA, and their minions which include Deborah Brignac, California Reconveyance Company. and Bank of America.

2013 California Rules of Court

Rule 8.1120. Requesting publication of unpublished opinions

(a) Request

(1)Any person may request that an unpublished opinion be ordered published.

(2)The request must be made by a letter to the court that rendered the opinion, concisely stating the person's interest and the reason why the opinion meets a standard for publication.

(3)The request must be delivered to the rendering court within 20 days after the opinion is filed.

(4)The request must be served on all parties.

(b) Action by rendering court

(1)If the rendering court does not or cannot grant the request before the decision is final in that court, it must forward the request to the Supreme Court with a copy of its opinion, its recommendation for disposition, and a brief statement of its reasons. The rendering court must forward these materials within 15 days after the decision is final in that court.

(2)The rendering court must also send a copy of its recommendation and reasons to all parties and any person who requested publication.

(c) Action by Supreme Court

The Supreme Court may order the opinion published or deny the request. The court must send notice of its action to the rendering court, all parties, and any person who requested publication.

(d) Effect of Supreme Court order to publish

A Supreme Court order to publish is not an expression of the court's opinion of the correctness of the result of the decision or of any law stated in the opinion.

Rule 8.1120 renumbered effective January 1, 2007; repealed and adopted as rule 978 effective January 1, 2005.

  

Glasky v. Bank of America

                                          INTRODUCTION

 Before Washington Mutual Bank, FA (WaMu) was seized by federal banking 

regulators in 2008, it made many residential real estate loans and used those loans as 

collateral for mortgage-backed securities.1

 Many of the loans went into default, which led to nonjudicial foreclosure proceedings. 

Some of the foreclosures generated lawsuits,  which raised a wide variety of claims. 

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 trustestablished 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. We conclude that, although the borrower’s allegations are somewhat 

confusing and may contain contradictions, heclosure claim under the lenient standards applied to demurrers. We conclude that a borrower may challenge the securitized trust’s chain of 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 trust 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. 

H. Causes of Action Stated

Based on the foregoing, we conclude that Glaski’s fourth cause of action has stated a claim for wrongful foreclosure. It follows that Glaski also has stated claims for quiet title (third cause of action), declaratory relief (fifth cause of action), cancellation of instruments (eighth cause of action), and unfair business practices under Business and Professions Code section 17200 (ninth cause of action).

We therefore reverse the judgment of dismissal and remand for further proceedings.