Show Me the Note - California Supreme Court Update - Yvanova v. New Century Mortgage

29
Fri, Feb 26, 2016 - 11:50am

This is too important to not share. I found out about this last week, and wanted to get an update out there. But, there are absolute legal wizards on this who are far better and concise at stating the importance of this decision by the California Supreme Court, UPHOLDING the right of someone who claims their home was taken illegally by a shady bank that has no right to foreclose.

I am posting, verbatim, their analysis of the Supreme Court of California decision, Yvanova v. New Century Mortgage Corp., No. S218973 (Cal. Feb. 18, 2016). These lawyers have been in the trenches, doing the heavy lifting, and deserve HIGH praise for the unwavering efforts. The Yvanova decision is a watershed moment, and opens the floodgates for borrowers to challenge foreclosures based on the foreclosing bank (or its agents) not having the power to foreclose because they do not hold the paper giving them the right to do so. In past posts, I called this the "show me the note" foreclosure defense.

A lot of the earlier litigation challenged every part of the foreclosure scheme, using state and local laws, with cases filed in state and federal courts, including the concept of "show me the note." Many legal theories were tested, and rejected by the courts. One case, Glaski, a seeming outlier, actually helped a borrower against the banks, and validated the concept of "show me the note." However, Glaski was roundly criticized and many courts rejected the reasoning of Glaski. Basically, the banks won and the little guys were getting screwed every which way.

Both the local judges, and the appellate courts at the state level, were rejecting "show me the note." The concept in the judges' minds was that no one should get a free house. I heard it myself at gatherings, as the judges just could not grasp the concept that the entire system was corrupt, and that on balance, if the foreclosing bank could not prove the right to foreclose, then legally, the borrower could challenge the process and stop the foreclosure. Whether that ended up giving the borrower a "free" house was besides the point. The whole point was that it was illegal for someone or some entity to take someone's house without having paper proof enabling them to do so. Simple concepts, but the clash of the equities of "free home" versus the rule of law resulted in favor of the big banks.

This concept was tested in the federal courts, too. The federal courts, applying their version of California state law, rejected Glaski in favor of other legal decisions that favored the banks. This made for what we all knew was going to be a California supreme court decision setting forth the final pronouncement on just exactly which line of cases would control and be the definitive law in the state of California.

That decision came down last week.

And, it is GREAT for the little guys, and HORRIBLE for the evil banks.

Let the wizards tell you. Here is one attorney's take (O. Max Gardner, III):

Borrower Has Standing to Challenge Void Assignment
Posted by NCBRC - February 24, 2016

The Supreme Court of California held that a borrower on a home loan secured by a deed of trust has standing to base an action for wrongful foreclosure on allegations that defects in the purported assignment of the note and deed of trust renders the assignment void. Yvanova v. New Century Mortgage Corp., No. S218973 (Cal. Feb. 18, 2016).
In 2006, Ms. Yvanova executed a deed of trust in favor of New Century. In 2007, New Century was dissolved in a bankruptcy liquidation. In 2011, New Century assigned Ms. Yvanova’s deed of trust to Deutsche Bank as trustee to Morgan Stanley investment trust. The Morgan Stanley investment trust, however, had a closing date of January 27, 2007 by which all assignments had to be transferred. Western Progressive, the substitute trustee for Deutsche Bank, gave notice of trustee’s sale of the property on August 20, 2012. The property was sold at public auction on September 14, 2012.

Ms. Yvanova filed suit in state court for quiet title alleging that the assignment to Morgan Stanley was void because 1) New Century’s assets had previously been transferred to the bankruptcy trustee, and 2) the Morgan Stanley trust had closed prior to the assignment. The court granted the defendants’ demurrer finding that Ms. Yvanova lacked standing to challenge the foreclosure on the basis of invalid assignment of the mortgage because she was not a party to that assignment. The appellate court affirmed.

Generally, under California law, a deed of trust is a negotiable instrument and borrowers may not object to its assignment. In the event of default, only the current assignee is entitled to enforce the note through nonjudicial foreclosure.

In finding that Ms. Yvanova had standing, the court distinguished between assignments that are void and those that are merely voidable. An assignment that is void is a nullity; it has no legal effect. A contract that is voidable has a defect that would subject it to being rendered void, but it is not considered void unless action is taken. In Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, the borrower, like Ms. Yvanova, challenged a foreclosure on the grounds that the deed of trust had been assigned after the trust had closed. The Glaski court found that the borrower had a legitimate cause of action so long as she could present facts demonstrating that the beneficiary on whose behalf the trustee initiated foreclosure was not the true beneficiary. That court determined that when a deed of trust is assigned to a trust after that trust was closed the assignment is void and the borrower has standing to challenge a foreclosure conducted on behalf of the purported assignee.
The court walked through the cases which Glaski discussed. In Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282 (1st Cir. 2013), the First Circuit rejected the broad rule that a borrower lacks standing to challenge an assignment that is void ab initio, finding that the borrower suffers the requisite harm by reason of the enforcement of the note by a non-owner. The court noted that under Massachusetts law, a broad rule that a borrower never has standing to challenge a foreclosure based on a void assignment would have the effect of depriving the borrower of any method of challenging a wrongful nonjudicial foreclosure.
In contrast, Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, upon which the appellate court relied, held that a borrower who is in default on the note has no standing to complain about the identity of the party foreclosing because the borrower’s rights and obligations are unaffected. The only party harmed is the true beneficiary.
The Yvanova court disagreed with Jenkins, finding that Glaski was the better reasoned decision. The issue of the borrower’s injury had different significance for purposes of standing than it did for purposes of establishing the elements of wrongful foreclosure. For standing, the harm to the borrower by reason of nonjudicial foreclosure by a nonbeneficiary of the deed of trust was sufficient. Moreover, the court rejected the proposition relied on in Jenkins that because the borrower’s obligations under the note remained the same regardless of who had the right to enforce it, he or she could not complain about the identity of party enforcing it. TheYvanova court reasoned that the mortgage contract contemplates not only that the borrower pay the debt, but that the recipient of the payments be the mortgagee. The contrary argument would prevent a borrower from complaining if a total stranger to the mortgage foreclosed. “A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity‘s hands. No more is required for standing to sue.”
Unlike the case of an assignment that is voidable, the borrower’s challenge to the assignment as void ab initio is not an attempt to assert the rights of other parties as those parties have no ability to ratify the assignment. Rather, it is a challenge to the existence of those rights. On the other hand, “when an assignment is merely voidable, the power to ratify or avoid the transaction lies solely with the parties to the assignment; the transaction is not void unless and until one of the parties takes steps to make it so. A borrower who challenges a foreclosure on the ground that an assignment to the foreclosing party bore defects rendering it voidable could thus be said to assert an interest belonging solely to the parties to the assignment rather than to herself.”

It is important to note what this case was not about. The court limited its holding as follows:

“Our ruling in this case is a narrow one. We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the challenged assignment. We do not hold or suggest that a borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit questioning the foreclosing party‘s right to proceed. Nor do we hold or suggest that plaintiff in this case has alleged facts showing the assignment is void or that, to the extent she has, she will be able to prove those facts. Nor, finally, in rejecting defendants‘ arguments on standing do we address any of the substantive elements of the wrongful foreclosure tort or the factual showing necessary to meet those elements.”

Here is another attorney's take (https://livinglies.wordpress.com/tag/neil-garfield/)

"Posted on February 25, 2016 by Neil Garfield
Yvanova v New Century Mortgage 02182016 Supreme Court of California opinion
By William Hudson
Last week the California Supreme Court ruled in Yvanova v. New Century Mortgage Corporation (Case No. S218973, Cal. Sup. Ct. February 18, 2016) that homeowners have standing to challenge a note assignment in an action for wrongful foreclosure on the grounds that the assignment is void. Obviously if the court had ruled differently, the banks would have had absolute carte blanche to forge mortgage assignments with wild abandon. In fact, without a system of endorsements and assignments it would be almost impossible to determine what party has a legitimate interest in a property and chaos would have ensued (sound familiar?).

The Yvanova ruling puts to rest the prior assumption by most California courts that a homeowner lacks standing to challenge a void assignment. This decision has the potential to open the litigation floodgates by borrowers who were improperly foreclosed on due to fraudulent or improper assignments. In fact, you can bet that homeowners who lost their homes due to the court’s resistance to follow established law will be filing suit.

In Yvanova, she complained that the bank had resorted to the use of fraudulent documents in order to foreclose. First she identified that a bankrupt entity called New Century assigned a deed of trust years after the company ceased to exist. The mortgage assignments demonstrated that even though New Century was dissolved in 2008, New Century allegedly assigned Yvanova’s deed of trust to Deutsche bank in 2011. It was also discovered that Yvanova’s note could not have been delivered to the Morgan Stanley trust pool because the trust had a cutoff date of January 2007. Deutsche Bank, the servicer, claims to have transferred the deed of trust to that pool in December 2011. Thus, 3 years and 11 months after the trust had closed.

By law, and to ensure tax-free pass-through status by the REMIC (Real Estate Mortgage Investment Conduit) notes placed in trusts must be placed into the pool by a certain date. The Morgan Stanley trust had a cutoff date of January 2007 but Deutsche Bank claims the note they received by a zombie assignment was placed in the pool in 2011. Thus, a nonexistent company called New Century transferred a note to a closed trust.

Up until Yvanova was settled, the California courts rejected hundreds of similar claims over the years stating that borrowers were not a party to or holder of the debt (see Jenkins f. JP Morgan Chase). The California courts essentially ruled that homeowners may now challenge wrongful foreclosures on the grounds that the assignment of the note was invalid or the chain of assignment was faulty. In securitized trusts, it is fairly common for the endorsements and assignments to be either inaccurate or downright fraudulent (photoshopped, robosigned, etc.). The big securitizing banks like Ocwen, Deutsche, Morgan Stanley and Wells Fargo better prepare for a tsunami of wrongful foreclosure suits in California.

The California Supreme Court, by ruling in favor of Yvanova, effectively confirmed the 2013 California Appellate ruling Glaski v. Bank of America, which held that a homeowner facing a non-judicial foreclosure has standing to challenge violations of the pooling and servicing agreement. One of the most insightful quotes in Yvanova states, “The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.”

The California Supreme Court got it right when they elaborated that, “A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity’s hands. No more is required for standing to sue.” Could it be that the California courts are tired of the 9 years of fraudulent banking games that have clogged the court system with no end in sight?

It wasn’t the homeowner who got sloppy, greedy and decided to start forging and photoshopping legal documents. It was the banks that engineered this complete fiasco from the top to bottom. Maybe now the banks will clean up their act, or they will be forced to find a more efficient and convincing way to forge and falsify endorsements and assignments. To date, the left hand doesn’t know what the right hand is doing- and the banks only hope that the homeowner doesn’t discover their deception.

I will reiterate again, if a bank claims to own a debt then why not simply show the documentation and prove it? This entire mess could be cleaned up very quickly if the banks would simply show the court evidence of ownership- but the courts know the banks don’t have it. By now we know that this entire debacle was engineered under the premise of plausible deniability and the screws are coming loose.
It is evident that the courts have had enough. The Supreme Court in Yvanova stated that:

“… California borrowers whose loans are secured by a deed of trust with a power of sale may suffer foreclosure without judicial process and thus ―would be deprived of a means to assert [their] legal protections if not permitted to challenge the foreclosing entity‘s authority through an action for wrongful foreclosure. (Culhane, supra, 708 F.3d at p. 290.)
A borrower therefore ―has standing to challenge the assignment of a mortgage on her home to the extent that such a challenge is necessary to contest a foreclosing entity‘s status qua mortgagee‖ (id. at p. 291)— that is, as the current holder of the beneficial interest under the deed of trust.”
The decision goes on to state that:

“In seeking a finding that an assignment agreement was void, therefore, a plaintiff in Yvanova‘s position is not asserting the interests of parties to the assignment; she is asserting her own interest in limiting foreclosure on her property to those with legal authority to order a foreclosure sale. This, then, is not a situation in which standing to sue is lacking because its ―sole object . . . is to settle rights of third persons who are not parties. (Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308, 316.)”
Apparently the California Supreme Court just grew a pair and the remaining 49 states might want to listen up. With all of the fraud settlements that have occurred over the past seven years, it is evident that what is occurring isn’t simply sloppy paperwork or unintentional oversight but blatant fraud, theft and criminal conspiracy if you want to be honest. It is a sad day in America when a homeowner must go all the way to the Supreme Court in order to obtain a fair and just ruling. If the courts had ruled in favor of the banks (and I am sure the judges in Yvanova knew what was on the line), there is no doubt in my mind that banks would have had a foreclosure feeding frenzy.
The court states the obvious, that there is an investor or entity who may suffer an unauthorized loss of its interest in the note if the foreclosure proceeds, “when an invalid transfer of a note and deed of trust leads to foreclosure by an unauthorized party, the ―victim‖ is not the borrower, whose obligations under the note are unaffected by the transfer, but ―an individual or entity that believes it has a present beneficial interest in the promissory note and may suffer the unauthorized loss of its interest in the note.”
And finally, the court gets to the meat of the matter- the issue of standing. “As it relates to standing, we disagree with defendants’ analysis of prejudice from an illegal foreclosure. A foreclosed-upon borrower clearly meets the general standard for standing to sue by showing an invasion of his or her legally protected interests (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175)—the borrower has lost ownership to the home in an allegedly illegal trustee‘s sale. (See Culhane, supra, 708 F.3d at p. 289 [foreclosed-upon borrower has sufficient personal stake in action against foreclosing entity to meet federal standing requirement].) Moreover, the bank or other entity that ordered the foreclosure would not have done so absent the allegedly void assignment. Thus- [t]he identified harm—the foreclosure—can be traced directly to [the foreclosing entity‘s] exercise of the authority purportedly delegated by the assignment.”


In conclusion, the court clarifies who is allowed to enforce the note without showing overt favoritism to the bank. Please note the eloquence of the last line in this paragraph in the Yvanova decision:
“Nor is it correct that the borrower has no cognizable interest in the identity of the party enforcing his or her debt. Though the borrower is not entitled to object to an assignment of the promissory note, he or she is obligated to pay the debt, or suffer loss of the security, only to a person or entity that has actually been assigned the debt. (See Cockerell v. Title Ins. & Trust Co., supra, 42 Cal.2d at p. 292 [party claiming under an assignment must prove fact of assignment].) The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.”
Again, “The borrower owes money NOT TO THE WORLD at large but to a particular person or institution, and ONLY the person or institution entitled to payment may enforce the debt by foreclosing on the security.” The court isn’t magically creating case law- this is exactly what the promissory note entitles the bearer to do- collect on a debt. The note does not say, “If you have a forged document you randomly printed a copy off the internet or photoshopped- you have standing.”
Only the individual or entity with actual STANDING can foreclose on a home. The fact that the homeowner defaulted on an alleged contract (that probably didn’t happen the way the contract reflects the transaction) doesn’t mean any party claiming to be a note holder can foreclose on the home. Like Jerry McGuire said, “SHOW ME THE MONEY.” Until the mortgagee shows up with actual evidence of ownership- no servicer, “lender” or unknown party should be able to randomly foreclose on a home simply by saying they own the note.
Again, this is the beauty of rescission. By precluding the servicer from walking into court with a forged note, mortgage and alleged contract- and forcing this party to demonstrate contractual standing- many fraudulent foreclosures would be prevented. It is tragic that so many people have lost their homes because the courts permitted a pretend lender with no standing to waltz in and take a home simply by showing fraudulent documents and making false claims.
Finally, the Yvanova ruling leaves us with the crowning glory of this decision, “A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity‘s hands. No more is required for standing to sue.” Thank you California Supreme Court justices for ruling according to law instead of the banking lobby.

About the Author

  29 Comments

silver66
Feb 26, 2016 - 11:53am

Thank you for the posting

Hopefully the private men and women of America take it upon themselves to sue the wrong doers

Thank you for this post

Silver66

Edit: oh yeah ... first

Feb 26, 2016 - 12:31pm

CaL

You are correct. This is extremely important stuff. THANK YOU for posting.

Feb 26, 2016 - 12:39pm

As TF Said, Extremely Important Stuff

Anyone who wants to dig deep into the ruling, and what it means, and have me lay out a forecast, I will. Just post your questions, and throughout the day I will weigh in.

The plan was for this to be a thread in progress for the weekend, so that I can make sure I point people in the right direction.

There are all sorts of legal issues that arise, statutes of limitations, etc., so there is nothing I am doing that is giving legal advice. I am, however, quite willing to talk about the decision, and what it means going forward as to my opinion on how this will affect the banks and the litigation landscape for these types of cases.

Remember, only California has taken this historic step of allowing borrowers to invoke this theory. There are other truly remarkable theories, like rescission, that are also actively being pursued by those attorneys who do this type of work.

My intent is to steer anyone who wants to lawyer up to one of those knowledgeable folks for further guidance.

This battle has been ongoing for years, and the tide has turned in the little guys' favor.

Rejoice, for sure.

ag1969
Feb 26, 2016 - 12:48pm

I think Iceland...

...had a much more significant victory.

Finally serious economists are considering a position I have been maintaining and writing about since the 2008 financial meltdown. Whatever its name— erasure, repudiation, abolishment, cancellation, jubilee—debt forgiveness, will have to eventually emerge forefront in global efforts to solve an ongoing systemic financial crisis.

The US Rothschild Controlled Media (RCM) has completely BLACKED OUT/CENSORED any news about Iceland’s DEBT FORGIVENESS.

If you Google “ICELAND FORGIVES ENTIRE POPULATION OF MORTGAGE DEBT” you will get ‘About 359,000 Results’. Not one of them is a Media Outlet in the US. Not one single Major or Minor news outlet in America has mentioned a single word about this story.

This is TOTAL MEDIA CENSORSHIP and a TOTAL MEDIA BLACKOUT, and it should tell you who owns and runs the Media in America.

We are allowed to see a tortured, bleeding, dying Gaddafi anywhere, but we are not allowed to know about Debt Forgiveness.

If you Google “DEBT FORGIVENESS” About 1 million 850 results. Not one of them talks about forgiving debt. Okay, 1 does.

But still, out of over a million and a half results. The MAINSTREAM MEDIA totally censors anything to do with Debt Forgiveness. The government of Iceland has forgiven the mortgage debt for much of its population. This nation chose a very different way of stopping the crisis from the rest of European countries.

It decided to hear the requests of the population and to put politicians and bankers on the bench of the accused three years after their financial excesses would sank one of the most prosperous economies in 2008. Iceland Forgives Mortgage Debt for the Population.

Putting Bankers and Politicians on “Bench of Accused” This is awesome. It shows when the people DO STAND UP they have more power and win against the corrupt bankers and politicians of a country. Iceland is forgiving and erasing the mortgage debt of the population.

They are putting the bankers and politicians on the “Bench of the Accused.” Which means I assume they are putting them on trial for corruption. Now the rest of people of the world need to start doing the same thing.

We all need to stand up and against all the corruption and fraud of the banks and politicians that are puppets of the banks and corporations.

The beauty of it is that they will have a load of cash to circulate into the economy and into service industries etc…instead of feeding it to the parasite bankers and out of the economy, great idea. If it was warmer I’d move to Iceland. This could very well be the first chime of many to signal the Death of the World Banking System headed by our ‘good’ friends the Rothschild’s.

https://republicbroadcasting.org/news/iceland-forgives-entire-population...

silver66 ag1969
Feb 26, 2016 - 12:59pm
Keg
Feb 26, 2016 - 1:07pm

I will likely be flamed for this

I don't have the time at this point to study the nuances of the law in this case. I do believe the banks should be doing the correct paperwork and following the law. The following comments are in general to all foreclosures and not just to the specifics of this case.

Did the mortgagee borrow money to pay the previous owner of the home? I think yes. Did the mortgagee know in advance what his monthly payment was going to be? I think yes. Did the mortgagee know if they did not make payments the house would be foreclosed? If they did not understand that, they should not be buying a house. Did the mortgagee make the payments as required by the mortgage? I assume no or there would not have been a foreclosure.

So, if the mortgagee had made the payments as required and explained at closing, there would have not been a foreclosure. So why should I give a shit? If someone could not make payment because they lost their job I do feel sorry for them. But they still need to get out of the house and into something they can afford.

During the housing crisis way too many people got liar loans or borrowed way more than they should with little money down loans betting on the continued increase in housing prices. I have zero sympathy for these people.

Mr. Fix
Feb 26, 2016 - 2:06pm

Great post California Lawyer,

I looked into this a couple of years ago here in New York, in fact, I recall even having a conversation with you about it.

Yes, the whole system is hopelessly corrupt, and it's going to take a lot of nerve for people to stop paying into it, and calling them on it.

This post does need to be read by every homeowner in the United States.

James Crighton California Lawyer
Feb 26, 2016 - 2:39pm

@CaL - Ken Cousens

CaL - many thanks for posting - most interesting.

I wonder if I could broaden the topic a tad by asking what your opinion of what Ken Cousens (of Gemstone University) reveals regarding "The History of the World System"? If you know not of what I speak then here is his 20 minute presentation (2015) which really is astounding in what is revealed:

Ken Cousens: The History of the World System, Pando Populus Conference 2015
Bollocks
Feb 26, 2016 - 2:59pm

Yes, very interesting CaL

just one thing though, haven't there been one or two cases where individuals have successfully challenged the IRS showing that there is no law that makes paying income tax compulsory?

I believe they went to the Supreme court and won, yet the lower courts ignore the ruling and still jail those who challenge the existence of the law. It does not exist - there is no law.

So I suspect that the foreclosure ruling will simply be ignored. The lower court judges who are whores to their owners, the banks, will simply ignore it and it'll be business as usual, with the odd hiccup here and there no doubt.

My thoughts. But I'm not a lawyer.



boomer sooner
Feb 26, 2016 - 3:05pm

I would bet

Her loan is setting in a bundle of papers at the Fed Res Bank in New York. My take, this is why the Fed purchased MBS paper. No paper trail or duplicates that were bundled and sold.

Thanks CalLaw!!!

Keg, I had the same feeling/attitude toward these borrowers, but the more I find out about the banking industry, especially the big boys, the more I think the people should keep the house. The loaned money was just a fabrication to begin with.

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