Balancing the Scales of Justice for Pro Se Homeowners

The Snowball from Hell…..Arguing Glaski

Posted by on Apr 4, 2014

The Snowball from Hell…..Arguing Glaski

 

 

It is not melting folks, it is growing and growing. While concurrently trying to undo the Glaski ruling (allowing homeowner’s to  challenge a void assignment; and considering a late assignment into a REMIC trust void) by getting it unpublished (which was denied),  the bank’s attorneys have been busy racking up rulings that purportedly make Glaski a “minority view”.  District and State Courts have  been ignoring the plain language of Stare Decisis to continue barring homeowners from legitimately defending their property rights  against banks that continue to manufacture assignments into REMIC trusts that closed years ago.

Judges appear to be relying on two main points – 1) the assignment into a closed REMIC is voidable not void; and 2) the transfer to the  REMIC Trust doesn’t change the fact the homeowner is in default and the original creditor would foreclose under the same circumstances.  (Otherwise, the assignment is not prejudicial to the homeowner).

Right now, one of the most leveraged cases is one called Jenkins v. JP Morgan Chase, N.A. 216 Cal. App.4th 497 (2013) , a state ruling out of Fourth Appellate District that was decided approximate three months before Glaski[1].  The Jenkins Court, relying heavily on Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153, 121 Cal.Rptr.3d 819 found that Jenkins had no  right to challenge the nonjudicial foreclosure to determine if the parties foreclosing had the right to initiate and conduct the foreclosure; and at no time did Jenkins questioned the voidness of the assignment;  (See What does it mean when the Courts follow Jenkins v. JP Morgan Chase, N.A. and decline following Glaski v. Bank of America, N.A.? ) Jenkins   asserted the terms of the pooling and serving agreement were violated because: (1) the promissory note was not transferred into the investment trust with a complete and unbroken chain of endorsements and transfers and this extinguished their interest in the Note and Deed of Trust; and (2) the trustee of the investment trust did not have actual physical possession of the note and deed of trust prior to the closing date of the investment trust.

I haven’t seen the pleadings in the Jenkins case and am only giving my two cents on this based on the Court’s ruling.  Clearly in Glaski the borrower did not claim the Note and Deed of Trust were extinguished; what he claimed is that the REMIC Trust was not the beneficiary.  Those factual allegations overcame Gomes; and he challenged the assignment on the basis that it is void; not that the assignment into the trust somehow extinguished the validity of the Note and Deed of Trust. The difference in the arguments is significant.

In reviewing the 29 cases coming up as “citing to Jenkins” the Court’s refuse to delve into whether the assignment is void but rather simply state that the “chain of transfers” or lack therefo do not give the borrower standing to challenge the assignment.  They are ignoring this key argument in Glaski.  They are all also chicken  because they want to go with the “majority” of other rulings that only appear to support their lazy analysis.  If ever there was a time for an attorney to dig in on an argument, this is it.  This needs to be attacked clearly and plainly in any pleading against a Motion to Dismiss or Demurrer – with a clean, clear analysis of why these rulings are do not represent the arguments made in Glaski (and hopefully your case).

In regards to the physical possession of the Note, that argument has been beat to death, so I am not going into this other than to say…knock out the assignment and make possession an issue. Short of doing that, this argument simply will not win.

The other issue that comes up is whether or not the borrower is prejudiced by an invalid assignment.  Because the borrower admits to being in default, they are not harmed by the foreclosure. Uh..yep that is truly how these judges think.

Furthermore, even if any subsequent transfers of the promissory note were invalid, Jenkins is not a victim of such invalid transfers because her obligations under the note remained unchanged. Instead, the true victim may be an individual or entity that believes it has a present beneficial interest in the promissory note and may suffer the unauthorized loss of their interest in the note.  Jenkins v. JP Morgan Chase, N.A. 216 Cal. App.4th 497 (2013)

smh

In my opinion, besides the little fact that they are sanctioning strangers who have not been harmed by the alleged default to foreclose, the Judge is flat our wrong that the borrower’s obligation is the only consideration. This alleged lack of prejudice, or harm, has me scratching my head.

Where a portfolio lender[2] would be incented to work out a loan on an underwater property to prevent or mitigate any losses; a Servicer and Trustee of a REMIC Trust may have greater financial incentives and benefits from forcing a foreclosure on underwater properties. Different REMIC Trusts have different incentives and ability to settle issues.  PSA terms, liquidity, capital requirements, credit risk exposure, and compensation differ between servicers, trustees and portfolio lenders. Given these differing incentives,  borrowers have a strong interest in identifying the real party in interest in order to negotiate a refinance or modification of their loan .  The obfuscation of the true “lender” does prejudice borrowers by preventing them from having meaningful negotiations for a resolution to any issues surrounding the loan.  Will it matter to the Court that the borrower was denied a modification because the servicer earned more money by denying the modification, and in driving its profits, it ignored that the borrower qualified for a modification?  It is important that arguments also explain to the Court (yeah, really you have to because the judges are this slow) why the borrower is harmed from the failure of the servicer to disclose the true beneficiary.  And don’t even get me started on the basis of 15 U.S.C. § 1641(g) – if federal law mandates disclosure of the real creditor, why is it okay their identify can be obscured during a foreclosure?

Only the proven mortgagee may maintain a foreclosure action. The requirement that a foreclosure action be brought only by the actual mortgagee is at the heart of the issues with foreclosure irregularities. If the homeowner or the court challenges the claim of the party bringing a foreclosure action as the mortgagee, then evidentiary issues arise as to whether the party bringing the foreclosure can in fact prove that it is the mortgagee. The issues involved are highly complex areas of law, but despite the complexity of these issues, they should not be dismissed as mere technicalities. Rather, they are legal requirements that must be observed both as part of due process and as part of the contractual bargain made between borrowers and lenders[3]. Getting clear on these arguments and the basis of the argument is key to your success in this fight.

Info To Fight Foreclosure store currently has a Homeowner Victory White Paper titled, “Glaski v. Bank of America, et al (Void Assignments).  It is a layman’s view of Glaski v. Bank of America, Inc. and goes into different arguments of why an assignment is void.  This white paper is free to pro se members; nonmembers can pick up a copy in our store for $59.99.

 

KEEP UP THE FIGHT!

Simonee

 

 

 

 

 

 

 



[1] As of April 1, 2014 thelawnet.com was reporting 29 cases Appellate decisions citing to Jenkins. Please keep in mind those 29 cites deal with other aspects of the Jenkins ruling as well.

[2] Portfolio lender is a company who originates and holds their own mortgage loans rather than funding from then selling to the secondary market.

[3] Restatement (3rd) of Prop. (Mortgages) § 5.4(c) (1997).

Leave a Comment

X

Forgot Password?

Join Us

Password Reset
Please enter your e-mail address. You will receive a new password via e-mail.