Lots of Homeowner “Friends of Court” Swinging Into Yvanova Case in California Supreme Court

There have been several amicus curiae briefs filed in the last few days in the Yvanova case, currently pending before the California Supreme Court on Glaski-type issues of a borrower’s ability to challenge the foreclosing party’s authority, whether it came from a bad assignment, or from a hallucination from the Dalai Lama.

California Attorney General FINAL-Amicus Brief-Yvanova pdf pdf (Attachment) Copy

National Consumer Law Center (NCLC) and National Association of Consumer Advocates (NACA)NCLC amicus brief Yvanova

Consumer Attorneys of California (CAOC)CAOC brief Consumer Attorneys Amicus Yvanova

 

And let’s not forget this doozie filed by the Banker’s Association.  2015-04-20_Yvanova_v _New_Century_Amicus_Cal_Bankers_Assoc (2)

Maybe I’m not being entirely fair but it seems to consist mainly of a major distraction tactic of showing false concern for homeowners.  You see, guys, these are just homeowner “delay” tactics (these pesky laws as set forth in the statutes and the contracts governing the loan transaction), and “studies” (no doubt commissioned by the Banker’s Aid Relief Charitable Society) show that giving distressed homeowners more time in their homes does not improve their chance of successful reinstatement.”  Huh?  What does that have to do with the issue of whether a foreclosing party is civilly liable for exercising authority he does not have to take real property that does not belong to him?

Advertisements

7 thoughts on “Lots of Homeowner “Friends of Court” Swinging Into Yvanova Case in California Supreme Court

  1. I apologize the loan was “originated” by CHL this one was originally originated by Homecomings Financial Network, Inc. then it was sold to Lehman/FNMA Non-Laser.

    Like

  2. I have read the briefs, and the comments. I am a Principal of Delphi Title Abstracting in Las Vegas Nevada. Delphi is also a Mortgage Electronic Registry Systems Member.

    While we do uphold that an “authorized” MERS signatory does have authority to assign a Deed of Trust or Mortgage, we also recognize that in some cases we have discovered that the individual who executed a certain assignment may not have actually held that capacity at the relevant time that the assignment was executed.

    in the past we had not involved ourselves with these issues, some things do change.

    In the last two months we have issued Affidavits in certain on going foreclosure cases spread from Connecticut to California in which we have given sworn testimony that a pertinent, and condition precedent Assignment of Mortgage was in fact Voidable and subject to being declared VOID based upon the fact that the individual who executed the Assignment was either not authorized by MERS, or that MERS was not the mortgagee for the certain mortgage loan, or the certain mortgage loan had been previously DE-activated off of the MERS system.

    It is worth notice that not all mortgage loans are MERS loans, and not all mortgage loans that display MERS as nominee or mortgagee, end up registered with MERS “as mortgagee”. This is not well known, or understood.

    Another interesting aspect of some mortgage loans is that the loan may have been De-activated off of the MERS system years prior, and then Re-activated just subsequent to an Assignment, and then quickly De-activated off of the MERS system again.

    We do not support the foregoing activity.

    It is important to us for anyone reading this post reply to understand that MERS is only a data base. The information entered upon the MERS data base is generally placed within the data base by “self policing” MERS members, and more specifically an “authorized” MERS member.

    Unfortunately, we have discovered that in certain loan files the data has been “corrupted” or manipulated by possible mistake, or possibly “scriveners errors?”

    The “mistake” could be Intentional, or UN-intentional, however we feel that no one should lose their home due to a mistake in entering erroneous data.

    In our Affidavits we do not elaborate nor focus on placing blame for the mistake. Indeed, our focus is only that a fatal mistake has occurred, and that mistake VOIDS the Assignment.

    We also file inquiries within the MERS system, as provided by the Rules of the system to raise rebuttal against an assignment that we have verified contains mistakes.

    While the Courts are split as to whether or not a borrower can challenge an assignment of a Mortgage or Deed of Trust, the Courts will generally accept a rebuttal from another MERS member who has identified that a mistake has occurred.
    It has been seen that if the Assignment of Mortgage or Deed of Trust is pronounced VOID then in most cases the foreclosing plaintiff loses standing, especially if the substituted foreclosing trustee was appointed by the assignee of the voided assignment of mortgage or deed of trust.

    Does this actually help the borrower in the end?. While this may not help identify the rightful party who may “own” the loan, it certainly helps to establish who does not own the loan.

    In closing:
    We at Delphi are troubled by all the foreclosures being brought in the name of the Federal National Mortgage Association (FNMA). We are finding too many of these foreclosures in which FNMA never actually “purchased” the loan, but rather only purchased a single “security” from one of the tranches of a Structured Trust Entity. It is important to understand that only the most junior residual class certificates of these Trust hold the “equity” in the offering, and not the senior classes.
    This extremely important to understand, as the “Lender” of most of these vintage loans retained the servicing rights to the loan, and they also retained the equity class certificates….Why? you ask….simple….. only the Loan servicer can foreclose according to the trust PSA Agreements, and to foreclose the servicer must hold the equity class certificate.
    Once the foreclosure is perfected the Legal and Equitable ownership interest are re-united into what we call “Whole” ownership of the real property. The legal owner’s interest must be extinguished to be passed to the Equitable owner.
    Please seek legal advice when confronting FNMA as foreclosing entity, or an “agent” that proclaims that FNMA owns your loan, because in almost 90% of the loans we have reviewed FNMA did not purchase the loan.

    Like

    1. Leeman, I’m going to kiss you! I really needed that explanation. FNMA, MERS and Nationstar are all being litigated by the same attorney in my Federal case. At least your explanation give me hope as well as trying to find the needle in the haystack. I am more frighten about hiring a lawyer as I am about defending myself again the entities. My TRUST in the legal system has diminished greatly.

      Like

      1. Elsie, Thank You for your reply. I was moved by your words and I am sympathetic to your situation. Please understand clearly before I comment further Delphi Title is not a law firm, and can not offer legal advice. Moreover, Delphi Title’s services are generally not available to the general public. The following comment is for informational purposes only.
        Recently we have assisted a foreclosure defense law firm with a matter involving a mortgage loan that was originated by Countrywide Home Loans (CHL).
        Long story short, after many hotly contested and verbally heated arguments on the record based upon this offices examination of the total loan history it was admitted that CHL was the “private” loan trust division of Countrywide, in addition CHL is NOT a MERS member.

        The loan shortly after origination was purchased by Lehman / FNMA Non-Laser. The loan was subsequently kicked out of the pool of mortgages purchased by the foregoing entity due to defects in the origination of the loan, and because the loan did not qualify as a loan that FNMA could directly purchase as it was a subprime loan.

        After Lehman/FNMA rejected the loan, it was referred to CHL to purchase, as CHL was the “junkman” at that time. No other entity could get the required AAA rating for the loan so that it could be sold to FNMA within a “whole-loan” purchase. Whole Loan purchase means that the debt and the Master servicing of the debt are sold together. In most loan sale transactions the loans are sold with “servicing retained”, or NOT a whole loan sale.

        CHL at that time had its own securities trading department. CHL issued its own Mortgage Backed Securities (MBS) which it then sold to the Government Sponsored Entities (GSE’s) Federal National Mortgage Association aka Fannie Mae also commonly referred to as FNMA.
        While FNMA could not purchase the loan it could purchase AAA rated “Securities” aka Mortgage Backed Securities aka MBS, which then FNMA re-securitized in their own private Trust. NOT actual loans but merely securities that granted them ownership interest in the income streams derived from the underlying collateral….being mortgage loans held by CHL.

        I wish to point out for the record that many wayward borrowers in the past would hire a so-called securitized audit. These audits are invalid, as the “auditors” would rely almost solely upon the information they obtained from either the Bloomberg terminals or another source known as the ABS.net terminal. This is a fatal mistake as these terminals do NOT track actual mortgage loans at all, they only track Securities for the benefit of investors looking to invest in stocks, bonds, securities, NOT the actual loans. These terminals refer to the underlying loan information but that is all.

        In the recent past a well publicized case was brought against Bank of America as the buyer of Countrywide in which the government sued BofA for repurchase of the “securities” purchased by Fannie Mae from CHL.

        It was stated in the Complaint that Fannie Mae, as well as others, purchased MBS, not loans.

        Bank of America settled for paying back FNMA and others almost 1.7 Trillion dollars for these securities based upon fraudulent mortgage loans.

        So it was proven in this particular matter that FNMA had no standing to sue for foreclosure as they have been paid off.
        It further came to light that the foreclosing atty’s actually participated to some extent in the production of fraudulent documents in support of the foreclosure action, and that their actual client was not the bank at all, but rather a middleman entity that was the principal in a network atty scheme that used FNMA Mae’s name not only to gain some form of “color” but also because the HOA was trying to foreclose or make the “bank” pay the outstanding HOA fee’s but an HOA can not recover against a GSE so the HOA fees would not have to be paid. Interestingly, FNMA would also not be liable to pay the outstanding county property taxes.

        So, by using FNMA as the plaintiff they were to be the beneficiary of a great windfall by taking the house, NOT paying the HOA, and NOT paying the taxes…….

        As astonishing as this may seem……………..for Delphi Title……….It is disgusting abuse of the MERS system, the judiciary…………and the public trust.

        BTW, as stated Delphi Title is a staunch supporter of the MERS concept, and always will be, the issue at hand concerning MERS is NOT that MERS is evil, its the individuals that log into the MERS system to abuse the system by imputing highly suspect information into the databases to support an apparent wrongful foreclosure action.

        Like

      2. Elsie I am just curious…….. if you do not mind can you post the actual district court and the case number………I would like to read what has been entered thus far.
        ****This is not meant as a legal commitment in any way………..just curious at this point.

        Like

  3. You rather cavalierly allege that Yvanova is merely a delay tactic. If you read Jenkins to say that an party with interest in real property cannot challenge a document filed in the public record affection the property to which s/he holds an interest you create a situation to where anyone, with with or without standing, can simply file a document in the record which purports to give some other entity a claim against your property and they attempt to collect on that claim, you cannot object without paying the claimant the full amount they demand.

    This would be a false reading of Jenkins and would create a manifest injustice that would open the door to horrendous fraud.

    Jenkins did not rule that a party could not challenge a filing to which s/he was not a party. It ruled that one could not take such an action as a fishing expedition, without facts to support reasonable cause.

    The current reading of Jenkins would have it that, when a party files a document in the public record claiming the authority to take your property, all the laws concerning subject matter jurisdiction, agency, standing, and capacity are rendered void and the only option for the home owner is to pay everything the claimant demands before an objection to paying the claimant can be raised.

    What’s wrong with this picture.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s