Glaski Update

Last month the California State Supreme Court denied Bank of America’s request to de-publish the Glaski decision (a landmark decision that was issued last summer).  As previously stated, the Court concluded that the homeowner’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 stated a 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 also addressed the Gomes decision, which most courts rely upon when ruling in favor of the banks (for example the trial court relied upon it in sustaining BOA’s demurrer).  Specifically the Court held, “[t]he instant case is distinguishable from Gomes on at least two grounds.  First, like in Naranjo v. SBMC Mortgage (S.D. Cal. Jul. 24, 2012, No. 11-CV-2229-L (WVG) 2012 l 3030370), Glaski has alleged that the entity claiming to be the noteholder was not the true owner of the note.  In contrast, the principal 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. “
 
The Appellate Court directed the trial court to vacate its previous decision and enter a new order overruling the demurrer as Glaski’s third (quiet title), fourth (wrongful foreclosure), fifth (declaratory relief), eighth (cancellation of instruments) and ninth causes of action (unfair business practices).
 
Now that the State Supreme Court has denied this request this decision is cemented as a pro-homeowner case in California.
So if the entity trying to foreclose is not your original lender and instead it is a “Trustee” like Deutsche Bank, Bank of New York Mellon with a long named attached to their name it means your loan was allegedly securitized.  The question (and it is a big question) is whether the parties responsible for the “securitization” complied with the rules and regulations expressed by the trust documents as well as state law of where the trust was created.  In Glaski it was New York law that applied and the Court held that if they failed to comply with the law and the assignment to the trust was void, that Bank of America as Trustee had no legal right to initiate the foreclosure, hence the wrongful foreclosure claim.
 
At the Law Offices of Jason W. Estavillo we are well versed in fighting the banks.  If you are facing a foreclosure, please contact us for a free consultation to discuss your case.
For more information about the Glaski decision visit foreclosure news

 

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