Tuesday, January 21, 2014

USDC Judge denounces Glaski, tosses Mottale.

Mortgage Victims, Get a Clue:

Attack the Mortgage, Not the Foreclosure

I have repeatedly denounced the Glaski opinion of California's 5th District Court, explaining that Glaski wasted his money fighting a foreclosure that the courts had to allow because he did in fact breach his mortgage note.

Now USDC Judge Gonzalo Curiel of California's Southern District has given Michael and Erica Mottale similarly shrift justice to their foreclosure defense which cited the Glaski opinion as a basis for the court to consider their reasons for halting the foreclosure.  His honor cited an array of opinions in opposition to the Glaski opinion, and explains why.

I have excerpted the below text from the opinion in Mottale v Kimball, Tirey & St. John et al

"B. Motion to Dismiss

"Defendants move to dismiss Plaintiffs’ “securitization” theory as failing to set forth a cognizable legal theory. (Dkt. No. 20-1 at 7-8) (“Plaintiff’s securitization argument is simply not the law in California and thus the related claims against KTS[J] are improper and baseless as a matter of law.”). In response, Plaintiffs cite the recent California Court of Appeal case Glaski v. Bank of America National Association, et al., 218 Cal. App. 4th 1079 (Aug. 8, 2013), to support the plausibility of Plaintiffs’ unlawful securitization theory of liability. (Dkt. No. 22 at 3.) In Glaski, the court interpreted New York trust law to find that a borrower could have standing to challenge the assignment of the borrower’s loan if the defect asserted by the borrower would void the assignment. Id. at 1095. The Court first notes that the weight of authority rejects Glaski as a minority view on the issue of a borrower’s standing to challenge an assignment as a third party to that assignment. See Rivac v. Ndex West LLC, No. C 13-1417 PJH, 2013 WL 6662762 at *4 (N.D. Cal. Dec. 17, 2013) (collecting cases); Boza v. U.S. Bank Nat. Ass’n, LA CV12-06993 JAK, 2013 WL 5943160 at *10 (C.D. Cal. Oct. 28, 2013) (same); In re Sandri, 501 B.R. 369, 374-78 (Bankr. N.D. Cal. 2013) (same).

"Additionally, even if the Court found the Glaski court’s reasoning persuasive, the Court finds that Plaintiffs fail to plead the facts to support such a theory. For example in Glaski, the court considered many factual details regarding the loan at issue in that case, including facts regarding the payments owed and the borrower’s attempts to obtain loan modifications. 218 Cal. App. 4th 1079, 1083-84 (2013). The court considered details regarding the creation of the alleged fraudulent trust and assignment of plaintiff’s loan challenged by the plaintiff in that case, including: the factual allegations that assignment was attempted after the closing date; the specifics of alleged transfers of plaintiff’s loan; and the alleged roles the defendants played in these actions. Id. at 1084-85. Furthermore, the court in Glaski considered facts regarding alleged misrepresentations made by defendants to plaintiff, including what the plaintiff was told, how the plaintiff interpreted the statements made, and who made the representations at issue. Id. at 1085-86. In summary, even if Glaski supports a finding that Plaintiffs’ legal theory is legally cognizable, Glaski cannot relieve Plaintiffs of the burden of alleging sufficient facts to state a claim under Federal Rule of Civil Procedure 12(b)(6) or, where Plaintiffs are alleging fraud, of pleading allegations of fraud with particularity, Fed. R. Civ. P. 9(b). The Court therefore turns to addressing each of the Causes of Action challenged for factual sufficiency in Defendants’ motion to dismiss."

What lesson shall we take away from Glaski and the host of opinions in opposition to it?  Consider this:

One who takes out a mortgage loan must repay it timely according to the terms of the note or forfeit the collateral realty according to terms of the mortgage.

Any defense against forfeiture of the collateral must fail. But, the mortgagor has a glimmer of hope in attacking the lender or lender's agents for injuring the mortgagor at the inception of the loan.  You see, a good offense can become one's best defense. 

Otherwise defenses against foreclosures of valid loans must fail.  And that includes every single securitization argument one can conjure.  Securitization has nothing to do with the obligation of the mortgagor to pay off the note according to its terms.  If you, the mortgagor, can prove that the lender or lender's agents injured you, then you can attack them for those injuries, and a court will rule in your favor if the lender or agents don't convince you to settle with them first.  Ruling in your favor can consist of financial set-off of the amount you owe, cram-down of the loan to a lower balance refinanced at terms favorable to you, compensatory damage, punitive damages, and legal fees and costs paid by your opponent.

Have you seriously contemplated how you might go about discovering the various ways the lender or agents injured you at the beginning of the loan?  They might have lied to you about the value of the house, or submitted false information on your loan application, or any one of DOZENS of other items of tortious conduct, contract breaches, or legal errors still within the statute of limitations.  Some tortious acts, like fraud, can justify treble (triple) damages in your favor.  That could become quite a win for you.

Look at it this way.

  1. ALWAYS LOSE when you defend against foreclosure; or...
  2. ALWAYS WIN when you attack against the lending team for torts, breaches, and errors

It's that simple.  Defend and LOSE, or Attack and WIN.  Which do you prefer?

Here's a stack of examples of DEFEND-and-LOSE:


Here's a STELLAR example of ATTACK-and-WIN:


So, take your choice:  Defend and LOSE or Attack and WIN.  Got it?   Good.

Now, if you want to learn how to find the torts, errors and breaches underlying your mortgage, CALL ME at 727 669 5511 right NOW, or Email Me right NOW.  I'll explain everything to you FREE.


Bob Hurt            Blog 1 2 3   f  t  
2460 Persian Drive #70
Clearwater, FL 33763
Email Call: (727) 669-5511
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