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California Supreme Court Reverses Yvanova – Banks Cannot Act as Bounty Hunters!

Posted by on Feb 20, 2016 | 0 comments

California Supreme Court Reverses Yvanova – Banks Cannot Act as Bounty Hunters!

In what can only be determined as a decidedly, albeit professional, thump on the heads of California State and Federal Judges (trial and appellate), along with the banks, the California Supreme Court reminded all citizens, including the legal and banking communities, that the law is the law. In Yvanova v. New Century Mortgage, who is the debt owner is not a matter of controversy – either you own it or you don’t; either you can prove you own it or you can’t. (Yvanova, p.8) What you CANNOT do is foreclose on a borrower’s property if you cannot prove you own it; and a homeowner can challenge the foreclosing party’s claim to own it.

For the last eight or nine years the majority of judges in this state took it upon themselves to determine that if a borrower owed money to someone, anyone could foreclose; a decision the Supreme Court liken to making the banks “bounty hunters”. (See Yvanova Ruling, p.23). Specifically, the Supreme Court found the logic of “defendants[1]‘no-prejudice argument implies that anyone, even a stranger to the debt, could declare a default and order a trustee‘s sale—and the borrower would be left with no recourse because, after all, he or she owed the debt to someone, though not to the foreclosing entity. This would be an odd result indeed. (Reinagel, supra, 735 F.3d at p. 225.)

Over the course of the next several weeks, or months, this ruling will be sliced and diced, spun into all kinds of meanings as to what the Supreme Court actually meant as the banks and their ilk try to recover from this ruling. But what no one can deny, nor spin into something other than what it says, and that is simply – A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity‘s hands. No more is required for standing
to sue. (Angelucci v. Century Supper Club, supra, 41 Cal.4th at p. 175.) (Yvanova, p.24).

State and Federal Judges in the State of California run with a “herd mentality” …or “pack mentality”. Independent legal thought is a rarity in our judicial community – exceptions can be identified in the lower and appellate court rulings in which the rulings were called “outlier” rulings – specifically Glaski v. Bank of America, 218 Cal. App. 4th 1079, 160 Cal. Rptr. 3d 449 (Ct. App. 2013). took a beating as both State and Federal judges rejected Glaski in favor of Jenkins v. JPMorgan Chase Bank, NA, 216 Cal. App. 4th 497, 156 Cal. Rptr. 3d 912 (Ct. App. 2013). – an illogical decision that really belied a bias or exceptionally lazy legal thinkers. The Fifth District Court of Appeals (Glaski) clearly looks to the law and relied on the law in determining that Glaski had standing and stated factual reasons as to why the partjudge1y foreclosing had no rights to do so.

This type of legal reasoning was found in In re Rivera, 517 B.R. 140 (B.A.P. 9th Cir. 2014) in which the BAP got a little closer to the truth of the issue. Specifically, Deutsche could not prove it owned the debt and in a Bankruptcy proceeding it didn’t matter what the instruments said about the beneficial interest in the security instrument, if you don’t own the debt you have no right to collect on it in a bankruptcy. Period. The BAP rejected Glaski, but in their defense, they did so because of the majority of California judges were refusing to follow Glaski, even noting in the oral arguments that California law had taken a “nonsensical turn” but there was nothing the BAP could do about California judges or law. All they could do was hold up the law in a bankruptcy proceeding…and that is simply, if you want to collect on a debt you better own it and be able to prove you own it.

This is a telling lesson. The majority were wrong about rescission – the United States Supreme Court set the majority straight (thought they still refuse to believe it) in Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 574 U.S., 190 L. Ed. 2d 650 (2015) earlier this year; now the California Supreme Court sets the majority straight with Yvanova. When the judges were so clearly wrong and we, the consumer defense legal teams, were so right, I am assuming, it may be tempting to gloat in pleadings and statements to the Courts about the arrogance and/or ignorance of the majority. I just caution you to remember that we still need these very same judges, whose arrogance and ignorance has received a decidedly dress down from the California Supreme Court, to apply the law. Whether the judges participated from ignorance, laziness or herd mentality, is no longer relevant (though should be kept in mind for further battles). Pleadings will require diplomacy affording the judges both respect, forgiveness and an opportunity to repair their reputations.

This has been a grueling 8 years of fighting over these foreclosures, a fight that now will increase tenfold because the reality is, the majority of these foreclosures were done illegally by parties that had no rights to do so.   And if your home was foreclosed on in the last five years, now is the time to seek restitution. There is a five year statute of limitations (that may also be equitably tolled) so don’t let the five SOL stop you from discussing your options with a foreclosure defense attorney.

To Richard Antognini, Kamala Harris and her staff, Mark Didak and the countless others that pitched in and supported this fight from behind the scenes, and very publically every day in trial courts across the state defending homeowners – congratulations on a job well done. May God continue to bless and honor the California Supreme Court’s work for the citizens of the State of California.   Stay tuned, we will be breaking down more of the interesting cites from the California Supreme Court in the days and weeks to come, as well as giving homeowners ideas of how to combat the inevitable, illogical spins the banks and their attorneys will be weaving. But for today….celebrate and celebrate big!

KEEP UP THE FIGHT!

Simonee

[1] Defendants are referencing the bank in the Reinagel matter.

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RIP Justice Scalia

Posted by on Feb 13, 2016 | 0 comments

RIP Justice Scalia

I was deeply sadden to read of Justice Antonin Scalia’s passing. He was a conservative justice that made no apologies for his conservative views and was a staunch supporter of the United States Constitution (and Bible). I think it is truly a blow to our U.S. Constitution and the rule of law in this country.   Where often we think of conservative’s as big business supporters, Judge Scalia believed the law was the great leveler; the one place where every person should be protected by the rights every citizen is entitled to under the US Constitution and our laws.

Noted for his ability to use piquant slang  (notably “jiggery-pokery” and “pure applesauce,” wonderfully quaint euphemisms for “bullshit”)[1] to get his point across, Justice Scalia   was undoubtedly one of the most entertaining legal writers of our time, if not in all of US History. Reading his opinion unaware could well lead to snorting hot coffee through one’s nostrils, while gleefully laughing as he handed dissenting justices a vitriolic expose on the actual rule law, in line with the United States Constitution. Not to say that I supported 100% of his opinions; I was simply in awe and in love with his legal reasoning.

(Jesinoski v. Countrywide Home Loans, Inc. (2015) ___U.S.___ [135 S.Ct. 790, 190 L.Ed.2d 650, 25 Fla. L. Weekly Fed. S. 29].) is but one opinion that we all were pleased to read, and perhaps some of us, had secretly hoped he would call the National Banks on their jiggery-pokery and pure applesauce but with an unanimous opinion it clearly was not necessary. The banks and their sympathetic, biased judiciary friends were told their applesauce does not trump our legal rights and gave us back one of the greatest legal tools (rescission) to dump that applesauce back on to the bank.

The US Constitution is about you and me, as individual Americans, and Justice Scalia never wavered from this fundamental fact in his interpretation of the law. Americans lost a great supporter of our individual rights and a strong advocate for our right to demand that every person – and every corporation or company, respect the rule of law.

Rest in peace Justice Scalia. And we shall…

KEEP UP THE FIGHT!

Simonee

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