Courts Deprecate Glaski – Only parties to the PSA may enforce it.

Violations of the PSA Won’t Save your House!

The July 2013 opinion by the California 5th District in Glaski v BOA caused an uproar of hope in the foreclosure pretense defense community. Finally a California appeals panel’s judges had their heads screwed on straight. They struck down Glaski’s foreclosure because assignment of the note to the supposed trustee who foreclosed became void under New York law because it happened after the closing date which the Pooling and Servicing Agreement (PSA) stipulated.

But now an array of California courts have tossed the Glaski opinion in the trash, favoring instead the prior May 2013 Jenkins v JP Morgan Chase Bank contrary opinion and the more recent contrary opinions by the CSD USDC in Mottale v Kimball Tirey.

How do we beat the bank?
How can we beat the bank?

I have cited those and a number of related cases below, a treasure trove of opinions to get the point across thoroughly, and copied a related article by Locke Lord lawyers. The point is:

If you are not a party to the PSA and you did not get injured by its parties, then you have NO STANDING to enforce or dispute it in court.

Consider this a warning to foreclosure victims: don’t pin your hopes on Glaski – if you do, you’ll lose your house. Period.

Okay, so HOW SHALL I SAVE MY HOUSE?

I put attacks against the PSA and securitization in the category of FAILING FORECLOSURE DEFENSE ARGUMENTS. You can count on foreclosure pretender defender lawyers across America to try to use them, but all they end up doing is costing foreclosure victims more money and losing the house anyway. They (and you, if you hire one of them) only waste resources to delay the inevitable foreclosure sale of the house.

I know of only one sure-fire way to WIN some form of concession or financial benefit from a mortgagee or mortgage note holder: ATTACK them or the loan originator and/or agents for injuring you at the inception of the loan (including any attempted scam loan modification where they con you into breaching the note to qualify for mod).

In order to attack them for injuring you, you must first discover HOW they injured you. That means you must examine your mortgage related documents comprehensively and thoroughly, having a good knowledge of related law, and take note of all the causes of action against them (reasons to sue them) that you can find.

If you don’t have that skill and your lawyer does not have that skill, and neither of you have the willingness to do that difficult and onerous job, then you must hire a competent mortgage examiner to do it for you.

I know only ONE such competent mortgage examiner in the world with the willingness and ability to examine your mortgage and find all the underlying causes of action.

Call Bob Hurt NOW at 727 669 5511
Call Now

If you call me at 727 669 5511, or send me your name and contact information by email I shall explain the process in detail for you, and connect you to the mortgage examiner IF YOU QUALIFY and IF you won’t just waste his time. I shall do this free of charge, and with no further obligation to you because I like helping sincere people.

But if you are just a tire-kicker or dilettante with no intention or heart for attacking your scurrilous lender, appraiser, mortgage broker, title officer, servicer, etc, don’t bother contacting me because I won’t be able to do anything for you, and it will just waste time for both of us.

Picture thi s – With a mortgage examination report in hand, you can negotiate a settlement with your lender, or prepare and file a lawsuit against the lender and confederates. You could win anything from a loan balance cram down (to an affordable level, refinanced) to monetary set-offs against your debt, to your house free and clear, to compensatory damages, to punitive damages, possibly in the millions.

All you get if you beat the foreclosure (which you won’t) is the same old house needing repairs and a huge mortgage you cannot afford. When fighting the foreclosure, you will not eliminate the debt, and if you foolishly do a loan mod, you will end up owing double to triple the value of your house and have a balloon you probably will never be able to pay, and you’ll end up in foreclosure again. You might as well slap a ball and chain around your ankle and sell yourself into servitude as the bank’s slave.

Put yourself in Hot Water
Mortgage Exam puts couple in HOT WATER.

Or, picture you and your family with the peace of mind and money to enjoy a nice hot tub experience after you win a settlement from the bank for injuring you. If you like that picture, CALL me. I’ll show you the path to liberation.

Bob Hurt
727 669 5511
E-mail

REFERENCE MATERIALS

http://scholar.google.com/scholar_case?case=8443134560105369166
Mottale v Kimball Tirey & St. John, LLP
, Dist. Court, SD California 10 January 2014 – The opinion in this California Federal case showed the futility of using Glaski as the basis for arguing against securitization:

Defendants move to dismiss Plaintiffs’ “securitization” theory as failing to set forth a cognizable legal theory. (Dkt. No. 20-1 at 7-8) (“Plaintiff’s securitization argument is simply not the law in California and thus the related claims against KTS[J] are improper and baseless as a matter of law.”). In response, Plaintiffs cite the recent California Court of Appeal case Glaski v. Bank of America National Association, et al., 218 Cal. App. 4th 1079 (Aug. 8, 2013), to support the plausibility of Plaintiffs’ unlawful securitization theory of liability. (Dkt. No. 22 at 3.) In Glaski, the court interpreted New York trust law to find that a borrower could have standing to challenge the assignment of the borrower’s loan if the defect asserted by the borrower would void the assignment. Id. at 1095. The Court first notes that the weight of authority rejects Glaski as a minority view on the issue of a borrower’s standing to challenge an assignment as a third party to that assignment. See Rivac v. Ndex West LLC, No. C 13-1417 PJH, 2013 WL 6662762 at *4 (N.D. Cal. Dec. 17, 2013) (collecting cases); Boza v. U.S. Bank Nat. Ass’n, LA CV12-06993 JAK, 2013 WL 5943160 at *10 (C.D. Cal. Oct. 28, 2013) (same); In re Sandri, 501 B.R. 369, 374-78 (Bankr. N.D. Cal. 2013) (same).

Additionally, even if the Court found the Glaski court’s reasoning persuasive, the Court finds that Plaintiffs fail to plead the facts to support such a theory. For example in Glaski, the court considered many factual details regarding the loan at issue in that case, including facts regarding the payments owed and the borrower’s attempts to obtain loan modifications. 218 Cal. App. 4th 1079, 1083-84 (2013). The court considered details regarding the creation of the alleged fraudulent trust and assignment of plaintiff’s loan challenged by the plaintiff in that case, including: the factual allegations that assignment was attempted after the closing date; the specifics of alleged transfers of plaintiff’s loan; and the alleged roles the defendants played in these actions. Id. at 1084-85. Furthermore, the court in Glaski considered facts regarding alleged misrepresentations made by defendants to plaintiff, including what the plaintiff was told, how the plaintiff interpreted the statements made, and who made the representations at issue. Id. at 1085-86. In summary, even if Glaski supports a finding that Plaintiffs’ legal theory is legally cognizable, Glaski cannot relieve Plaintiffs of the burden of alleging sufficient facts to state a claim under Federal Rule of Civil Procedure 12(b)(6) or, where Plaintiffs are alleging fraud, of pleading allegations of fraud with particularity, Fed. R. Civ. P. 9(b). The Court therefore turns to addressing each of the Causes of Action challenged for factual sufficiency in Defendants’ motion to dismiss.

http://www.lexology.com/library/detail.aspx?g=6b56d02a-06f0-4d51-a384-f525c0712c56

California Court follows well-established case law in ruling – borrower cannot challenge validity of loan securitization

Glaski v. Bank of America, N.A., 218 Cal. App. 4th 1079 (July 31, 2013) – “a borrower may challenge [a] 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.”

Diunugala is the first case coming out of a California court to expressly reject the California Court of Appeal’s reasoning inGlaski and deem Glaski unpersuasive. While not binding authority, other State and Federal Courts in California may followDiunugala as persuasive authority and similarly follow well-established case law holding that a borrower lacks standing to challenge an allegedly invalid assignment of a deed trust.

The Glaski opinion contradicted Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497 (May 17, 2013 – borrowers lack standing to challenge the validity of an assignment to which they are neither party nor beneficiary. “As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, [plaintiff] lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, relating to such transactions.”

Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, (2011) – California non-judicial foreclosure statutes do not “provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized.”

Diunugala v. JP Morgan Chase Bank, N.A. (Case No. 12-cv-02106-WQH-NLS) (October 3, 2013) – “[we find] the reasoning in [cases such asJenkinsandGomes] to be more persuasive than that in Glaski.” Even if the Glaski court correctly decided the case, a plaintiff cannot assert a claim based upon an allegedly ineffective assignment of a deed of trust without alleging facts demonstrating that the deed of trust was not assigned in any manner or alleging resulting prejudice to the borrower.

Google Scholar Search Results

Jenkins v. JP Morgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 3rd Div., 2013 – Google Scholar
Diane Jenkins (Jenkins) requests the reversal of the trial court’s dismissal of her lawsuit after
it sustained the two separate demurrers of (1) JPMorgan Chase Bank NA (Chase) and Bank
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Jenkins v. JP Morgan Chase Bank

Court of Appeals, 9th Circuit, 2013 – Google Scholar
The district court properly dismissed Jenkins‘ action because, under the Purchase and Assumption
Agreement between JP Morgan Chase Bank (“Chase“) and the Federal Deposit Insurance Corporation
(“FDIC”), Chase did not assume any liability associated with borrower claims against
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IN RE CHOUDHURI

Bankr. Court, ND California, 2013 – Google Scholar
This argument is both unsupported and incorrect.”); Jenkins v. JP Morgan Chase Bank, NA, 216
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right to bring a preemptive judicial action to determine defendants’ standing to foreclose
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ATTILI v. E* TRADE BANK

Cal: Court of Appeal, 2nd Appellate Dist., 6th Div., 2013 – Google Scholar
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possession of the note.” (Accord, Jenkins v. JP Morgan Chase Bank, NA (2013
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GILBERT-DAVIS v. Los Angeles County Metropolitan Transportation Authority

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v. JPMorgan Chase Bank, NA, supra, 214 Cal.App.4th at p. 752; accord, Landmark Screens,
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Gomes v. Countrywide Home Loans, Inc.

192 Cal. App. 4th 1149 – Cal: Court of Appeal, 4th Appellate Dist., …, 2011 – Google Scholar
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Allen v. United Financial Mortg. Corp.

660 F. Supp. 2d 1089 – Dist. Court, ND California, 2009 – Google Scholar
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Siliga v. Mortgage Electronic Registration Systems, Inc.

219 Cal. App. 4th 75, 161 Cal. Rptr. 3d … – Cal: Court of Appeal, 2nd …, 2013 – Google Scholar
the nonjudicial foreclosure process by pursuing preemptive judicial actions challenging the
authority of a foreclosing “beneficiary” or beneficiary’s “agent.” (Jenkins v. JPMorgan Chase Bank,
NA (2013) 216 Cal.App.4th 497, 511 [156 Cal.Rptr.3d 912] (Jenkins); Gomes, supra
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Jenkins v. JPMorgan Chase Bank, NA

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Sporn v. JPMorgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 3rd Div., 2014 – Google Scholar
The power of sale may be exercised by the assignee if the assignment is duly acknowledged
and recorded.” (Italics added.) This section does not apply to a deed of trust. (Jenkins v.
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No. C 13-1983, 2013 WL 6140528, at 6 (ND Cal. Nov. 21, 2013) (Judge William
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PEDERY-EDWARDS v. JP Morgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 1st Div., 2014 – Google Scholar
Appellant Judith Pedery-Edwards appeals from a judgment entered in favor of defendants JP
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Holmes v. HSBC BANK USA

Cal: Court of Appeal, 2nd Appellate Dist., 8th Div., 2014 – Google Scholar
(2013) 219 Cal.App.4th 75, 82; Jenkins v. JPMorgan Chase Bank, NA (2013) 216
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CHAOUI v. Bank of America, NA

Cal: Court of Appeal, 2nd Appellate Dist., 8th Div., 2013 – Google Scholar
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11, 2011, a “Notice of Rescission of a Trustee’s Deed Upon Sale” was recorded.
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Glaski v. Bank of America

218 Cal. App. 4th 1079, 160 Cal. Rptr. 3d … – Cal: Court of Appeal, 5th …, 2013 – Google Scholar
Before Washington Mutual Bank, FA (WaMu), was seized by federal banking regulators in
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mortgage-backed securities. [1] Many of the loans went into default, which led to
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Zapata v. WELLS FARGO BANK, NA

Dist. Court, ND California, 2013 – Google Scholar
Dec. 21, 2012). Plaintiffs rely on Glaski v. Bank of America, NA, 218 Cal.App.4th 1079 (2013),
to argue that they can challenge the securitization process. Glaski, however, is in the clear minority
on this issue. The Glaski decision relies on New York law to reach its conclusion.
Cite Save

MOTTALE v. KIMBALL TIREY & ST. JOHN, LLP

Dist. Court, SD California, 2014 – Google Scholar
In response, Plaintiffs cite the recent California Court of Appeal case Glaski v. Bank of America
National Association, et al., 218 Cal. App. 4th 1079 (Aug. 8, 2013), to support the plausibility
of Plaintiffs’ unlawful securitization theory of liability. (Dkt. No.
Cite Save

Sporn v. JPMorgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 3rd Div., 2014 – Google Scholar
(Glaski v. Bank of America (2013) 218 Cal.App.4th 1079 (Glaski); Jenkins, supra, 216
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facts supporting such a claim and these cases do not save plaintiff’s cause of action.
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GLASKI v. BANK OF AMERICA, NATIONAL ASSOCIATION

Cal: Court of Appeal, 5th Appellate Dist., 2013 – Google Scholar
Before Washington Mutual Bank, FA (WaMu) was seized by federal banking regulators in
2008, it made many residential real estate loans and used those loans as collateral for
mortgage-backed securities. [1] Many of the loans went into default, which led to
Cite Save

Nguyen v. JP Morgan Chase Bank, NA

Dist. Court, ND California, 2014 – Google Scholar
[13] Although Chase’s original motion argues that the Nguyens do not have standing
to raise such issues, the Nguyens’ opposition brief contends that they do based on
a single California appellate case, Glaski v. Bank of America.
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Haddad v. Bank of America, NA

Dist. Court, SD California, 2014 – Google Scholar
28, 30). Plaintiff contends that the First Amended Complaint adequately states claims for relief
pursuant to the holding of Glaski v. Bank of America, NA, 218 Cal. App. Plaintiff contends that
he has standing for the reasons stated in Glaski v. Bank of America, NA, 218 Cal. App.
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Maxwell v. DEUTSCHE BANK NATIONAL TRUST COMPANY

Dist. Court, ND California, 2013 – Google Scholar
Expungement is warranted. The plaintiffs have provided almost no argument in opposition. They
merely cite to Glaski v. Bank of America, 218 Cal. App. 4th 1079 (Ct. Oct. 31, 2013) (citing cases
disagreeing with Glaski). II. THE REQUEST FOR ATTORNEY’S FEES IS GRANTED.
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DAHNKEN v. WELLS FARGO BANK, NA

Dist. Court, ND California, 2013 – Google Scholar
valid beneficiary is unknown,” but “[w]hat is known is that the defendants to this action do not
have the authority to exercise the power of sale or to collect mortgage payments from the plaintiff.”
See Complaint at 9. To support this argument, plaintiff largely relies on Glaski v. Bank
Cite Save

IN RE SANDRI

Bankr. Court, ND California, 2013 – Google Scholar
The court disagrees, as Glaski is inconsistent with the majority line of cases and
is based on a questionable analysis of New York trust law. 1. The Weight of Authority
is Against Glaski. 2. Glaski’s Reasoning is Not Persuasive.
Cite Save

Bergman v. Bank of America, NA

Dist. Court, ND California, 2014 – Google Scholar
As to the claim that Defendants breached the PSA, Plaintiffs newly argue that the Court
should follow Glaski v. Bank of Am., Nat’l Ass’n, 218 Cal. App. See FAC ¶¶ 25-26. However,
as Defendants point out, Glaski represents a minority view.
Cite Save

SUBRAMANI v. WELLS FARGO BANK NA

Dist. Court, ND California, 2013 – Google Scholar
Sept. 24, 2012). On this point, Plaintiff contends that a recent California Court of Appeals case,
Glaski v. Bank of America, NA, 218 Cal. App. 4th 1079 (Cal. Ct. App. at 1094-95. Defendant
counters that the Court should ignore Glaski as stating the minority rule.
Cite Save

Grimm v. CAPITAL ONE, NA

Cal: Court of Appeal, 4th Appellate Dist., 1st Div., 2013 – Google Scholar
The Grimms filed a letter bringing to our attention a recently published case, Glaski v. Bank of
America (2013) 218 Cal.App.4th 1079, which they claim “is relevant to the issue on appeal related
to [Capital One’s] improper securitization procedures and lack of assignment into the
Cite Save

Apostol v. CITIMORTGAGE, INC.

Dist. Court, ND California, 2013 – Google Scholar
Plaintiff relies on Glaski v. Bank of Am., Nat’t Ass’n, 218 Cal. App. 4th 1079, 1097 (2013). Id.
at 1097-98. However, Glaski represents a distinct minority view on the standing of third parties
to enforce or assert claims based on alleged violations of a PSA.
Cite Save

IN RE SCOMPARIN

Bankr. Court, ND California, 2014 – Google Scholar
In support of his position, Plaintiff cites Thomas A. Glaski v. Bank of America, 2013 WL 4037310
(Cal. Ct. App. July 31, 2013). As determined in In re Sandri, 501 BR 369 (Bankr. ND Cal. 2013),
the clear weight of authority is against Glaski and its reasoning is unpersuasive.
Cite Save

US Bank National Association v. FRIEDRICHS

Dist. Court, SD California, 2013 – Google Scholar
She contends that the proposed amendment is not made in bad faith and not futile as the law
in California has changed under Glaski v. Bank of America, Nat’l Assoc., 218 Cal. App. 4th 1079
(2013). Oct. 5, 2012). Here, both parties argue, in detail, the merits of the Glaski case.
Cite Save

Engler v. RECONTRUST COMPANY

Dist. Court, CD California, 2013 – Google Scholar
May 30, 2012) (Chen, J.) (granting preliminary injunction preventing foreclosure sale because
the plaintiff was likely to prevail on claim that foreclosure was improper due to fraudulent
substitution of trustee); Glaski v. Bank of Am., Nat’l Ass’n, 218 Cal. App. See Glaski, 218 Cal.
Cite Save

RIVAC v. NDEX WEST LLC

Dist. Court, ND California, 2013 – Google Scholar
for securitization” as they argue in the opposition. Plaintiffs rely on Glaski v. Bank of
America, 218 Cal. App. IT IS SO ORDERED. [1] The court also notes that even in California
courts, the holding in Glaski has not been adopted universally.
Cite Save

Holmes v. HSBC BANK USA

Cal: Court of Appeal, 2nd Appellate Dist., 8th Div., 2014 – Google Scholar
2012) 885 F.Supp.2d 964, 973-974; Glaski v. Bank of America (2013) 218 Cal.App.4th 1079,
1097; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1378-1379;
Sacchi v. Mortgage Elec. Registration Sys. (CDCal. June 24, 2011, No.
Cite Save

PEDERY-EDWARDS v. JP Morgan Chase Bank, NA

Cal: Court of Appeal, 4th Appellate Dist., 1st Div., 2014 – Google Scholar
that a foreclosure was wrongful because it was initiated by a nonholder of the deed of trust has
also been phrased as (1) the foreclosing party lacking standing to foreclose or (2) the chain of
title relied upon by the foreclosing party containing breaks or defects.” (Glaski v. Bank of
Cite Save

SEPEHRY-FARD v. DEPARTMENT STORES NATIONAL BANK

Dist. Court, ND California, 2013 – Google Scholar
39-3 at 4-5). [6] In making his argument that securitization of the credit debt somehow prevents
the Financial Entities from collecting on his debt, plaintiff relies extensively on Glaski v. Bank
of America, 218 Cal.App.4th 1079 (Cal.App. 2013). That reliance is wholly misplaced.
Cite Save

YOUKHNA v. AMERICA’S WHOLESALE LENDER

Cal: Court of Appeal, 2nd Appellate Dist., 4th Div., 2013 – Google Scholar
The notes may thereafter be transferred among members without requiring recordation in the
public records.”. [5] As explained in Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1082,
“In simplified terms, `securitization’ is the process where (1) many loans are bundled
Cite Save

Siliga v. Mortgage Electronic Registration Systems, Inc.

219 Cal. App. 4th 75, 161 Cal. Rptr. 3d … – Cal: Court of Appeal, 2nd …, 2013 – Google Scholar
219 Cal.App.4th 75 (2013). 161 Cal. Rptr. 3d 500. JOHNNY SILIGA et al., Plaintiffs and Appellants,
v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., et al., Defendants and
Respondents. No. B240531. Court of Appeals of California, Second District, Division Three.
Cited by 14 Cite Save

Wolford v. AMERICAN HOME MORTGAGE SERVICING, INC.

Cal: Court of Appeal, 2nd Appellate Dist., 2nd Div., 2013 – Google Scholar
Thus, the homeowner-plaintiff does not suffer an injury as a result of the assignment of deed of
trust, even if the assignment was fraudulent”]; but cf. Glaski v. Bank of America (2013) 218
Cal.App.4th 1079, 1097, fn. 16 [finding forgery a
question of fact under New York law].).
Cite Save

DIUNUGALA v. JPMorgan Chase Bank, NA

Dist. Court, SD California, 2014 – Google Scholar
On January 6, 2014, Plaintiff filed the Ex Parte Application for a Temporary Restraining
Order. (ECF No. 39). Plaintiff “seeks a TRO to preliminary enjoin Defendants . . . and any other
persons or entities acting on their behalf, including the San Diego County Sheriff, from
Cite Save

DIUNUGALA v. JP Morgan Chase Bank, NA

Dist. Court, SD California, 2013 – Google Scholar
After review of the filings of the parties, the Court finds that there has been an insufficient showing
of prejudice to Defendants or undue delay in bringing the proposed class allegations to overcome
the “presumption under Rule 15(a) in favor of granting leave to amend.” Id. To the extent
Related articles Cite Save

SUBRAMANI v. WELLS FARGO BANK NA

Dist. Court, ND California, 2013 – Google Scholar
See Newman v. Bank of NY Mellon, No. 1:12-CV-1629 AWI GSA, 2013 WL 5603316, at *3 n.2
(ED Cal. Oct. 11, 2013) (“Glaski is in a clear minority” on this issue); Diunugala v. JP Morgan
Chase Bank, NA, No. 12-cv-2106-WQH-NLS, 2013 WL 5568737, at *8 (SD Cal. Oct.
Cite Save

Lueras v. BAC Home Loans Servicing, LP

221 Cal. App. 4th 49, 163 Cal. Rptr. 3d … – Cal: Court of Appeal, 4th …, 2013 – Google Scholar
For this reason, `[n]umerous cases have characterized a loan modification as a
traditional money lending activity.'” (See Diunugala v. JP Morgan Chase Bank, NA
(SDCal., Oct. 3, 2013, No. 12cv2106-WQH-NLS) 2013 USDist.
Cited by 6 Cite Save

More Failing Securitization Arguments by Foreclosure Victims

  • Rodenhurst v. Bank of Am., 773 F. Supp. 2d 886, 899 (D. Haw. 2011) (“The overwhelming authority does not support a [claim] based upon improper securitization.”) “[S]ince the securitization merely creates a separate contract, distinct from plaintiffs’ debt obligations under the Note and does not change the relationship of the parties in any way, plaintiffs’ claims arising out of securitization fail.”
  • Lamb V. Mers, Inc., 2011 WL 5827813, *6 (W.D. Wash. 2011) (citing cases);
  • Bhatti, 2011 WL 6300229, *5 (citing cases);
  • In re Veal, 450 B.R. at 912 (“[Plaintiffs] should not care who actually owns the Note-and it is thus irrelevant whether the Note has been fractionalized or securitized-so long as they do know who they should pay.”);
  • Horvath v. Bank of NY, N.A., 641 F.3d 617, 626 n.4 (4th Cir. 2011) (securitization irrelevant to debt);
  • Commonwealth Prop. Advocates, LLC v. MERS, 263 P.3d 397, 401-02 (Utah Ct. App. 2011) (securitization has no effect on debt);
  • Henkels v. J.P. Morgan Chase, 2011 WL 2357874, at *7 (D.Ariz. June 14, 2011) (denying the plaintiff’s claim for unauthorized securitization of his loan because he “cited no authority for the assertion that securitization has had any impact on [his] obligations under the loan, and district courts in Arizona have rejected similar arguments”);
  • Johnson v. Homecomings Financial, 2011 WL 4373975, at *7 (S.D.Cal. Sep.20, 2011) (refusing to recognize the “discredited theory” that a deed of trust ” ‘split’ from the note through securitization, render[s] the note unenforceable”);
  • Frame v. Cal-W. Reconveyance Corp., 2011 WL 3876012, *10 (D. Ariz. 2011) (granting motion to dismiss: “Plaintiff’s allegations of promissory note destruction and securitization are speculative and unsupported. Plaintiff has cited no authority for his assertions that securitization has any impact on his obligations under the loan”).”The Court also rejects Plaintiffs’ contention that securitization in general somehow gives rise to a cause of action – Plaintiffs point to no law or provision in the mortgage preventing this practice, and cite to no law indicating that securitization can be the basis of a cause of action. Indeed, courts have uniformly rejected the argument that securitization of a mortgage loan provides the mortgagor a cause of action.” See
  • Joyner V. Bank Of Am. Home Loans, No. 2:09-CV-2406-RCJ-RJJ, 2010 WL 2953969, at *2 (D. Nev. July 26, 2010) (rejecting breach of contract claim based on securitization of loan);
  • Haskins V. Moynihan, No. CV-10-1000-PHX-GMS, 2010 WL 2691562, at *2 (D. Ariz. July 6, 2010) (rejecting claims based on securitization because plaintiffs could point to no law indicating that securitization of a mortgage is unlawful, and “[p]laintiffs fail to set forth facts suggesting that Defendants ever indicated that they would not bundle or sell the note in conjunction with the sale of mortgage-backed securities”);
  • Lariviere V. Bank Of N.Y. As Tr., Civ. No. 9-515-P-S, 2010 WL 2399583, at *4 (D. Me. May 7, 2010) (“Many people in this country are dissatisfied and upset by [the
    securitization] process, but it does not mean that the [plaintiffs] have stated legally cognizable claims against these defendants in their amended complaint.”);
  • Upperman V. Deutsche Bank Nat’l Trust Co., No. 01:10-cv-149, 2010 WL 1610414, at *3 (E.D. Va. Apr. 16, 2010) (rejecting claims because they are based on an “erroneous legal theory that the securitization of a mortgage loan renders a note and corresponding security interest unenforceable and unsecured”);
  • Silvas V. Gmac Mortg., Llc, No. CV-09-265-PHX-GMS, 2009 WL 4573234, at *5 (D. Ariz. Dec. 1, 2009) (rejecting a claim that a lending institution breached a loan agreement by securitizing and cross-collateralizing a borrower’s loan). The overwhelming authority does not support a cause of action based upon improper securitization. Accordingly, the Court concludes that Plaintiffs cannot maintain a claim that “improper restrictions resulting from securitization leaves the note and mortgage unenforceable);
  • Summers V. Pennymac Corp. (N.D.Tex. 11-28-2012) (any securitization of Plaintiffs’ Note did not affect their obligations under the Note or PennyMac’s authority as mortgagee to enforce the Note and foreclose on the property if Plaintiffs defaulted).;
  • Nguyen V. Jp Morgan Chase Bank (N.D.Cal. 10-17-2012) (“Numerous courts have recognized that a defendant bank does not lose its ability to enforce the terms of its deed of trust simply because the loan is assigned to a trust pool. In fact, ‘securitization merely creates a separate contract, distinct from [p]laintiffs[‘] debt obligations under the note, and does not change the relationship of the parties in any way. Therefore, such an argument would fail as a matter of law”);
  • Flores v. Deutsche Bank Nat’l Trust Co., 2010 WL 2719848, at *4 (D. Md. July 7, 2010), the borrower argued that his lender “already recovered for [the borrower’s] default on her mortgage payments, because various ‘credit enhancement policies,'” such as “a credit default swap or default insurance,” “compensated the injured parties in full.” The court rejected the argument, explaining that the fact that a “mortgage may have been combined with many others into a securitized pool on which a credit default swap, or some other insuring-financial product, was purchased, does not absolve [the borrower] of responsibility for the Note.” Id. at *5; see also
  • Fourness v. Mortg. Elec. Registration Sys., 2010 WL 5071049, at *2 (D. Nev. Dec. 6, 2010) (dismissing claim that borrowers’ obligations were discharged where “the investors of the mortgage backed securities were paid as a result of . . . credit default swaps and/or federal bailout funds);
  • Warren v. Sierra Pac. Mortg. Servs., 2010 WL 4716760, at *3 (D. Ariz. Nov. 15, 2010) (“Plaintiffs’ claims regarding the impact of any possible credit default swap on their obligations under the loan . . . do not provide a basis for a claim for relief”).
  • Welk v. GMAC Mortg., LLC., 850 F. Supp. 2d 976 (D. Minn., 2012) (“At the end of the day, then, most of what Butler offers is smoke and mirrors. Butler’s fundamental claim that his clients’ mortgages are invalid and that the mortgagees cannot foreclose because they do not hold the notes is utterly frivolous.);
  • Vanderhoof v. Deutsche Bank Nat’l Trust (E.D. Mich., 2013) (internal citations omitted) (“s]ecuritization” does not impact the foreclosure. This Court has previously rejected an attempt to assert a claim based upon the securitization of a mortgage loan. Further, MERS acts as nominee for both the originating lender and its successors and assigns. Therefore, the mortgage and note are not split when the note is sold.”);
  • Chan Tang v. Bank of America, N.A. (C.D. Cal., 2012) (internal citations omitted)(“Plaintiffs’ contention that the securitization of their mortgage somehow affects Defendants’ rights to foreclose is likewise meritless. Plaintiffs have identified no authority supporting their position that securitization voids the power of sale contained in a deed of trust. Other courts have dismissed similar arguments. Thus, the claim that Defendants lack the authority to foreclose because the Tangs’ mortgage was pooled into a security instrument is Dismissed With Prejudice.);
  • Wells v. BAC Home Loans Servicing, L.P., 2011 WL 2163987, *2 (W.D. Tex. Apr. 26, 2011) (This claim—colloquially called the “show-me-the-note” theory— began circulating in courts across the country in 2009. Advocates of this theory believe that only the holder of the original wet-ink signature note has the lawful power to initiate a non-judicial foreclosure. The courts, however, have roundly rejected this theory and dismissed the claims, because foreclosure statutes simply do not require possession or production of the original note. The “show me the note” theory fares no better under Texas law.);
  • Maynard v. Wells Fargo Bank, N.A. (S.D. Cal., 2013) (“Plaintiffs also allege that they conducted a Securitization Audit of Plaintiffs’ chain of title and Wachovia’s PSA, and as a result, determined that Plaintiffs’ Note and DOT were not properly conveyed into the Wells Fargo Trust on or before July 29, 2004, the closing date listed in the Trust Agreement. (Id. at ¶ 34.)… To the extent Plaintiffs challenge the validity of the securitization of the Loan because Wells Fargo and U.S. Bank failed to comply with the terms of the PSA or the Trust Agreement, Plaintiffs are not investors of the Loan, nor are Plaintiffs parties to the PSA or Trust Agreement. Therefore, as many courts have already held, Plaintiffs lack standing to challenge the validity of the securitization of the Loan…Furthermore, although Plaintiffs contend they have standing to challenge the validity of the Assignment because they were parties to the DOT with the original lender (Wells Fargo), this argument also fails. (Doc. No. 49 at 11-12.);
  • Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 511-13, 156 Cal. Rptr. 3d 912 (Cal. Ct. App. 2013) (“[E]ven if any subsequent transfers of the promissory note were invalid, [the
    borrower] is not the victim of such invalid transfers because her obligations under the note remained unchanged.”). As stated above, these exact arguments have been dismissed by countless other courts in this circuit. Accordingly, Plaintiffs’ contentions that the Assignment is void due to a failure in the securitization process fails.”);
  • Demilio v. Citizens Home Loans, Inc. (M.D. Ga., 2013) (“Frankly, the Court is astonished by Plaintiff’s audacity… Plaintiff requires the Court to scour a poorly-copied, 45-page “Certified Forensic Loan Audit” in an attempt to discern the basic facts of his case. This alone would be sufficient for dismissal. However, the Court is equally concerned by Plaintiff’s attempt to incorporate such an “audit,” which is more than likely the product of “charlatans who prey upon people in economically dire situation,”… As one bankruptcy judge bluntly explained, “[the
    Court] is quite confident there is no such thing as a ‘Certified Forensic Loan Audit’ or a ‘certified forensic auditor…. The Court will not, in good conscience, consider any facts recited by such a questionable authority.”)
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Author: bobhurt

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