Balancing the Scales of Justice for Pro Se Homeowners

Bank’s Depublication Campaign – Slimy move or smart?

Posted by on Oct 13, 2013

In August of this year the 5th Appellate District Court issued a ruling in which the Court found a homeowner can contest a foreclosure based on a void assignment.  The Court determined the homeowner’s claim that the Assignment of Deed of Trust was fatally flawed because the execution date of the assignment was after the closing date of the REMIC Trust  and the assignment had been done by a party other than the identified Depositor of the REMIC Trust, was valid.  As a result of these flaws, the Court determined that the homeowner’s claim the Assignment was void rather than voidable was sufficient grounds to allow the claims go forward. (The claims included Wrongful Foreclosure, Cancellation of Written Instruments, Unfair/Deceptive Business Practices) PUBLISHED Glaski Appellate Opinion

In Glaski vs. Bank of America, N.A. the Trial Court had granted a “Demurrer” stopping Glaski’s litigation at the pleading stage.  At the pleading state, the Court rules on the alleged facts and law, not on actual evidence.  Interesting enough, so confident were the bank’s attorney’s they failed to dispute Glaski’s claim the REMIC Trust was governed by New York law – when it reality it is Delaware law. (Which is more stringent than New York but doesn’t have as large of body of developed law, so one has to wonder if they deliberately chose not to dispute the governing law)  This left the Bank with three options – 1) Appeal to the Supreme Court and risk a Supreme Court ruling affirming the Appellate Court’s ruling; 2) Accept the ruling or 3) Ask the Supreme Court to de-publish the ruling – sending the ruling into oblivion where it would have no impact on the foreclosure war.

The banks, rather than risk having the Supreme Court affirm the ruling (which many of us believe the Supreme Court WOULD affirm the ruling), have chosen to wage a campaign asking the Court to de-publish the ruling.  Two wins rolled into one for the Banks, if they succeed.  De-publication is not a common day word or procedure, many people were not even aware this was an option or what its impact is. California, in all its glory, is the ONLY state that allows this end run around the appellate process.

At its finest, the de-publication process allows the Supreme Court to stop the impact of a bad ruling without investing resources by simply de-publishing the opinion.  It is a process that, again at its finest, makes sense.  For example, say an Appeals Court rules that December follows October and there is no November – this is such a blatantly bad ruling that it would be silly to spend 1,000’s of dollars in court resources explaining why this is a bad ruling.  Yet if left to stand, it could and would create chaos in the lower courts in which other Appeals Courts would eventually have to spend money defeating the ruling in their own districts.  So rather than spend anyone’s time on the bad ruling, the Supreme Court simply orders the ruling be de-published and therefore, preventing anyone from using it as any form of authority in supporting their arguments.  Again, at its finest it makes sense.

The Glaski ruling is not a blatantly bad ruling – it is in fact, a well reasoned and fair ruling.  And this is where the Banks should have their tushes handed to them with a stern admonition from the Supreme Court.  JP Morgan Chase, Deutsche, Wells Fargo and the Bankers Association have all banded together in writing separate letters to the Court in an effort to demonstrate this is a bad ruling and should not be allowed to stand.  Yet as you read these letters it is obvious that the banks are attempting to re-try the case through de-publication instead of following proper procedure, by petitioning for a review by the Supreme Court.  The only chaos created is the Bank’s will have to stop stealing homes.

Obvious means easily perceived or understood; clear, self-evident, or apparent.  There is nothing easily perceived or understood, clear, self-evident or apparent about the self serving fake documents the banks create and record to foreclose on Californian’s homes.   The issue of whether a 3rd party who is not a beneficiary or party to the assignment (which is considered a contract) may be clear; but whether an entity can enforce a VOID contract is not.  And that is what this issue boils down to.   California Civil Code § 3539 is clear that time does not confirm a void act.

Void means not valid or legally binding.  If the contract is not valid or binding, how can it be enforced? It simply cannot.  Even in reviewing the banks arguments, they resort to citing unpublished cases to bolster their disingenuous arguments, but almost every key case they refer to is still being litigated.  It is well settled New York law that a prohibited act by a Trustee is void ab initio.  (See NYEPL 7-2.4) What is not settled is can a 3rd party object to a party attempting to enforce a void contract? There is nothing settled in this arena; if it is not settled, then clearly is not an “obvious” bad ruling.

If the Supreme Court follows it normal, fair course, it will not be deceived by this slimy move by the banks. And that is exactly what it is. They did not have the guts to take it up on an appeal with the Supreme Court, instead rather than risk losing again, they have undertaken a campaign to have it de-published.  Not only does this campaign demonstrate just how unsettled the banks are with Glaski, it shows the banks fear.  Sorry…there will be no choir singing the blues for the banks.

Following are two of the bank letters, we will update this when we get the others; and there are letters of legal professionals who are opposing the banks campaign.  The final day for submitting a letter to the Supreme Court is October 14, 2013.  Stand by folks, this will be a clear demonstration of the Supreme Court’s fairness and ability to discern slime from smart.

 

Banks Letters

Morgan Lewis for Deutsche_Glaski

Alvarado Smith for JP Morgan Chase_Glaski

Homeowner Advocate Letters

Charles Cox _Glaski                                                           

Jim Macklin _Glaski

Michael Pines _Glaski

Rick Ensminger _Glaski

 Monica Graham _Glaski

UPDATE – California Supreme Court DENIED the depublication request; case CLOSED as of February 26, 2014.

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