Editor’s Update: It’s published! Way to go!
It’s published, as of this morning.
|08/08/2013||Order granting publication filed.||As the nonpublished opinion filed on July 31, 2013, in the above entitled matter hereby meets the standards for publication specified in the California Rules of Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official Reports. (JAA)|
|08/08/2013||Received:||request for publication submitted by atty Freshman, however pos does not include all parties ; moot since publication granted|
Please write a letter to the California Appellate Court requesting that Glaski v. JPMorgan Chase be published, so that it can be used as precedent in California.
The decision is here. CA Supreme Court Glaski v Bank of America CA5 F064556 It’s important that it be published so that it provides valuable precedent by a California appellate court.
The case is interesting because the court analyzed relevant securitization facts in determining that the homeowner had stated a claim based on the foreclosing bank’s lack of authority to foreclose. The court acknowledged the PSA’s provisions that New York law would apply to the MBS Trust.
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.
We therefore reverse the judgment of dismissal and remand for further
The court acknowledged that to survive a 12(b)(6) dismissal, the plaintiff asserting a theory based on the argument that the defendant was not the true beneficiary under the deed of trust must allege facts that show the defendant who invoked the power of sale was not the true beneficiary. Thus, a rote statement that the defendant is not a beneficiary is not sufficient, but alleging facts that show WHY the defendant is not the true beneficiary is sufficient. (Note to Arizonans: this is what I think our Arizona Supreme Court was saying in Hogan, i.e., you need to allege some facts that show how the defendant could not be the beneficiary. I do not think the court was saying you can never state a claim for lack of authority based on ownership of the note or beneficial status under the deed of trust, as the bank attorneys try to persuade the court and extend the Hogan holding).
The court held that the borrower has standing to raise a defect in an assignment if it would result in the assignment being void. Again, this is a common law precept, and Arizona also has a case that repeated this precept, Greene v. Read.
The Court went on to look at the securitization facts, and understood that a transfer made post-Closing Date to a securitized trust would be void under the NY law that governs the securitization (per the terms of the securitization agreement creating the Trust).
We conclude that Glaski’s factual allegations regarding post-closing date attempts
to transfer his deed of trust into the WaMu Securitized Trust are sufficient to state a basis
for concluding the attempted transfers were void. As a result, Glaski has a stated
cognizable claim for wrongful foreclosure under the theory that the entity invoking the
power of sale (i.e., Bank of America in its capacity as trustee for the WaMu Securitized
Trust) was not the holder of the Glaski deed of trust.
The court rejected the California district courts’ holdings to the contrary.
Also, the court distinguished Gomes and narrowed it.
The instant case is distinguishable from Gomes on at least two grounds. First, like
Naranjo, Glaski has alleged that the entity claiming to be the noteholder was not the true
owner of the note. In contrast, the principle set forth in Gomes concerns the authority of
the noteholder’s nominee, MERS. Second, Glaski has alleged specific grounds for his
theory that the foreclosure was not conducted at the direction of the correct party.
In view of the limiting statements included in the Gomes opinion, we do not
interpret it as barring claims that challenge a foreclosure based on specific allegations
that an attempt to transfer the deed of trust was void. Our interpretation, which allows
borrowers to pursue questions regarding the chain of ownership, is compatible with
Herrera v. Deutsche Bank National Trust Co., supra, 196 Cal.App.4th 1366. In that case,
the court concluded that triable issues of material fact existed regarding alleged breaks in
the chain of ownership of the deed of trust in question. (Id. at p. 1378.) Those triable
issues existed because Deutsche Bank’s motion for summary judgment failed to establish
it was the beneficiary under that deed of trust. (Ibid.)
This case needs to be published to be useful. Please write a letter.