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

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 (

"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


Apr 11, 2016 - 12:48pm

Can A Mortgage That's Up To Date Be Called Due?

Anybody up on mortgage contracts? Is there a way that a current mortgage can be called due by the lender for no reason? I didn't see that in mine, but I'm no expert on the fine print...

Thanks for the help in advance...

Mar 15, 2016 - 9:42pm

How's Devaluation Gonna Affect Mortgage Contract?

No takers on this one, yet?

Sure would be interested in knowledegable thougts on the subject...Can't we find a banker in the house if the lawyers are busy?

Mar 7, 2016 - 7:06pm

Your Thoughts On Mortgage Changes Due To Devaluation

I'd like to ask the thread about thoughts on how residential rental assets will do in the near future. If one got into a house at a decent price, (interest rates are relatively cheap with good credit), and is cashflowing the house with responsible renters, (yeah, talent and luck are required here, but that's true of any investment), isn't it true that the contract with the lender remains the same in a currency devaluation situation? In other words, won't I be able to repay the loan with cheaper currency? Doesn't a change in an exisiting contract VOID THE CONTRACT? I don't see anything in my mortgage that says otherwise. Any thoughts?? Thanks in advance!

“I wish it need not have happened in my time," said Frodo.
"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us.”

boomer sooner
Feb 28, 2016 - 8:22pm

The underlying question is

Who has rightful ownership of the property? Since the title will be web with no end, How will this type of property be sold? Looks like the current occupant has a permanent squatters right, but no deed to sell.

Feb 28, 2016 - 1:57pm

Couple of thoughts...

There are problems all over the place... MERS is a solid problem.

If you want to transfer the note, you need to record that with the county (until blockchain solves this). MERS was used to avoid taxes and transfer notes without proper recording. The chain of title can be very nebulous now.

I am told so often on things as stupid as a speeding ticket that it was your choice to break the law, and you get the consequences. Well the banks didn't record properly. They made their own rules on recording. If they didn't want to legally record the transfers with the county, then they get the consequences (or a bail out, or the ability to robo-sign/forge documents without consequence, or a judicial system that looks the other way, or....).

The general population seems willing to make exceptions for the institutions at the expense of the individual, but cringes when the individual benefits due to the mistakes/corruption of institutions. I've been asking myself why. The best I can reason is that the individual stands to benefit directly and that seems wrong to people. While the institution is "just doing its job" and the employees only benefit by having a job. This corruption seems ok to people. Maybe that is the reason why people are so damn forgiving of government when it causes problems. Government workers have plausible deniability and only benefit from a general, dull, constant ethical degradation of freedoms for the individual.

Im glad one court seems to understand that having evidence of the note is important. My understanding is that as they entered the notes into MERS, they shredded the originals.. The wet-ink note is no longer in existence. If you shred a contract, doesnt it make the contract void?

Fred Hayek
Feb 27, 2016 - 5:19pm

@CAL, you're right Black was in the Charikov case

It was the lawyers for the guys being prosecuted for lying on liar loans who brought in Bill Black.

Incidentally, one article I just read about it said that, shortly afterward, there was another case (in another state, I think) where they were going to prosecute someone for lying on liar loans and after the attorneys for the defendant listed Bill Black on their witness list . . . the case was dropped!

Feb 27, 2016 - 10:28am

Free house for who?

If a lender trawls the back alleys, purely to find people who will sign on to a "teaser" mortgage, which includes the big cash addition, for new furniture, new car, vacation, etc....knowing full well that the borrower will be unable to make the required payments once the cash portion of the loan is used up.....solely for the purpose of bundling this mortgage with many others, to sell on to another entity, FOR IMMEDIATE PROFIT, then who got the free house? Who is the greater fool? The new owner of the bundled mortgages is. Greed has compelled it to "invest" in a non-performing "asset", so they simply lose their so-called investment, unless they sold it on....all the way up the chain of buyers.

Final holder of the "note", who probably could never find any individual note in the myriad of notes and half-notes, and quarter-notes etc, which make up their now worthless "investment" could never in a million years make a case of ownership. The squid sold zillions of $ worth of this shite to cities, countries, etc, worldwide.

Low down on the chain are the scumbag scavenger banks like morgue, who have a record of the note passing through their hands, so...knowing that the note has essentially evaporated up the chain, and that no one up the chain could ever produce it, attempt to steal the home (again!), by claiming the right to foreclose.

Lamp posts and guillotines are too good for these parasites.

Feb 27, 2016 - 9:22am

"No Free Homes" Doctrine

Cal... excellent work!

The best argument to stand on in court would seem to be (just my opinion) this:

It's not a matter of whether monies are owed by the borrower, it's a matter of foreclosing banks proving that money is owed to them! The injured parties are NOT the ones bringing suit! The plaintiff banks have no more right to foreclose than you or I. All of the judgements in these cases should have res judicata effect.

Judges across the nation have sided with banks in many instances, going against well-established legal principles, out of fear of opening Pandora's Box and other misguided reasons. However, it was the banks who created the quagmire by dropping their filing standards during a finance boom.. therefore, the injury should lie squarely with the banks who created the securities. The banks had a's was called pricing in the risk!... they chose not to do so when issuing these notes... instead, the banks are once again choosing the easy way out by forging/creating documents out of thin air to support their foreclosure cases, and unfortunately state judges have been going along.

But the solution can be found with a favorable judgment for the borrower, because it is consistent with longstanding res judicata principles, it provides the necessary market correcting incentive to promote greater responsibility among foreclosure litigators and alleviates the tremendous costs of successive foreclosure proceedings.

So, yes...."Free Houses" is not only the legal thing... it's the "market clearing mechanism" as well!

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Feb 26, 2016 - 11:52pm

@Left Field

That is exactly the point. It is the other side of the coin.

All of the permutations of the argument were made in the case, and the opinion, which I read entirely, lays out those arguments in exquisite detail.

The basic premise is worth repeating. It is NOT about the homeowner getting a free house. It is about one who CLAIMS to be able to take someone's house from them being required to prove the basic facts supporting the legal right to be able to undertake the foreclosure process.

It is no different than someone that undertakes to take your car, and when you question their legal right, they say you have not made the payments, and here is a piece of paper on it saying I get to drive it off. If you disagree, and they try to take your car, should you not have the right to go to court and challenge their right to take your car unless they can prove the very basic premise of the right to take the car based on a signed promissory note? Of course.

Just because it is a big bank, which makes huge political contributions, and uses fake computer digits to create value, and is part of the western fiat scheme, with enormous influence due to the scam which is fiat currency, why do they have the right to avoid the rule of law?

Perhaps we have reached a tipping point in the public sentiment? Perhaps not? Who knows?

Feb 26, 2016 - 11:45pm

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