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A five judge panel of the California Supreme Court on Wednesday denied the request of the five major banks to have the decision in depublished. While the banks could have attempted to appeal the controversial Glaski decision, they feared a ruling upholding Glaski by the Supreme Court, and instead chose to seek depublication and lost.
United Law Center managing partner, Stephen J. Foondos.
"We're ecstatic about the Calif. Supreme Court's decision. It's yet another indication of the direction in which the law is turning directly in favor of California homeowners, attorney Stephen Foondos of United Law Center.
ROSEVILLE, CA (PRWEB) FEBRUARY 27, 2014
In dramatic fashion, a ruling by a five judge panel of the California Supreme Court on Wednesday denied the request of the five major banks to have the decision in Glaski v. Bank of America (5th Dist. Ct. App. No. F064556) depublished. Two of the seven judges recused themselves, for reasons unknown. While the banks could have attempted to appeal the controversial Glaski decision, they feared a ruling upholding Glaski by the Supreme Court, and instead chose to seek depublication, and lost.
The impact of the Supreme Court's landmark decision is enormous, giving irrefutable authority to homeowners who are facing foreclosure or who've already been foreclosed on, to seek damages for wrongful foreclosure. Stephen Foondos, founder of United Law Center(ULC) in Roseville, Calif. and one of the attorneys who argued against depublication, has led his team to fight the banks for wrongful foreclosure since 2008. ULC has been leveraging this case to help thousands of Calif. homeowners fight back against their mortgage lender, and win because the banks don’t want to fight against Glaski in a jury trial. Since Glaski was published, ULC has seen the rate and value of case settlements increase dramatically. Cases wherein “Glaski” is alleged may include principal reductions between 30-70%, interest rates fixed at 2-3% for 30 years and a cash award upwards of six figures.
“The banks, fearing the appellate process, tried depublication and failed. While the banks argued that the Glaski decision could have a catastrophic impact on the banking industry, it's a major victory and real step forward in the long legal fight to provide the real victims of the foreclosure crisis, the homeowner, true relief,” explained attorney Foondos. "We're ecstatic about the Calif. Supreme Court's decision. It's yet another indication of the direction in which the law is turning in this banking brawl, directly in favor of California homeowners.”
The Glaski decision stands for the simple proposition that if an entity wants to collect on a debt in California (or foreclose on a mortgage), that entity must own the debt. Further, if such an entity is claiming ownership by way of an assignment, that assignment must be valid. A bank’s assignment of a promissory note to a Mortgage-Backed Security Trust (a “Securitized Trust”) is generally referred to as “securitization.” Pursuant to the New York law under which the Securitized Trust was created and Federal Securities Law, the transfer of Mr. Glaski’s note was required to occur within 90 days of the closing date of the Securitized Trust commonly referred to as the “90 day Rule.” If this securitization occurs beyond the 90-days, it is considered void at its inception.
Therefore, because the Securitized Trust did not own Mr. Glaski’s note, it could not legally foreclose, and hence, the foreclosure was wrongful. The California Court of Appeals agreed. And while Glaski is viewed as an outlier in Federal Courts, “The Court’s decision to deny the banks’ request for depublication of Glaski affirms that it is the law of the land in California, and we have been granted the right to sue in California Superior Court,” says Foondos.
It is estimated that 70-80% of all California homeowners who financed a home between 2003 and 2008 had their note securitized. “Accordingly, in light of the Glaski decision, approximately 1.3 million homes may have been wrongfully foreclosed upon and have grounds to sue their original lender for damages,” explained Foondos.
About United Law Center
United Law Center is leading the way in foreclosure litigation for homeowners. With four published cases on the books in California, United Law Center is changing the laws in favor of millions of homeowners fighting banks to keep their homes. Millions of homeowners were affected by the fraudulent bank practices from 2003 to 2008 and United Law Center is on a mission to help right those wrongs. To determine if a homeowner has a valid case, they are encouraged to visit http://www.unitedlawcenter.com to schedule a no-time-limit consultation.
Corroborating what I have been saying for years on this blog, the Supreme Court of the state of California is reasserting its position that if entity ABC wants to collect on a debt in California, then that particular entity must own the debt. This is basic common sense and simply follows article 9 of the Uniform Commercial Code. If a court were to adopt the position of the banks, then a new industry would be born, to wit: spying on people to determine whether or not they are behind on any payment to anyone and then beating the real creditor to court, filing a complaint and getting a judgment without the real creditor even knowing about it. The Supreme Court of the state of California obviously understands this. This is not really complicated although the words used are complicated. If you find out that your neighbor is behind in payments on their credit cards, it is obvious that you cannot serve your neighbor and collect. You don’t own the debt because you never loaned any money and because you never purchased the debt. If you are allowed to sue and collect on the credit card debt, you and the court would be committing a fraud on the actual creditor. This is why it is absurd for lawyers or judges to say what difference does it make who they owe the debt to? They stopped making payments and they are clearly in default. Any lawyer or judge makes that statement is wrong. It lacks the foundation of the factual determinations required to establish the existence of the debt, the current balance of the debt after deductions for all payments received from all parties on this account, and the ownership of the debt. In the first year of law school, we learned that the note is not the debt. The note is evidence of the debt and the terms of repayment but it is not a substitute for the actual transaction documents. Those transaction documents would have to include proof of transfer of consideration, which in this case would mean wire transfer receipts and wire transfer instructions. The banks don’t want to show the court this because it will show that the originator in most cases never made any loan at all and was merely serving as a sham nominee for an undisclosed lender. The banks are attempting to use this confusion to make themselves real parties in interest when in fact they were never more than intermediaries. And as intermediaries that misused their positions of trust to misrepresent and create fraudulent mortgage bond transactions with investors that led to fraudulent loans being made to borrowers. The banks diverted or stole money from investors on several different levels through multiple channels of conduit sham entities that they called bankruptcy remote vehicles. The argument of too big to failis now being rejected by the courts. That is a policy argument for the legislative branch of government. While the bank succeeded in scaring the executive and legislative branches into believing the risk of too big to fail most of the people in the legislative and executive branches of government on the federal and state level no longer subscribe to this myth. There are dozens of other courts on the trial and appellate level across the country that are also grasping this issue. The position of the banks, which is been rejected by Congress and the state legislatures for good reason, would mean the end of negotiable paper. The banks are desperate because they know they are not the owner of the debt, they are not the creditor, they have no authority to represent the creditor, and their actions are contrary to the interests of the creditor. They are pushing millions of homeowners into foreclosure, or luring them into an apparent default and foreclosure with false promises of modification and settlement.
2 The reason is simple. Without a foreclosure sale at auction, the banks are exposed to an enormous liability for all the money they collected on the alleged defaulted loans. The amount of the liability is vastly in excess of the entire principal of the loans, which is why I say that the major banks are publishing financial statements that are based on fictitious assets and fictitious income. Nobody can ignore the fact that the broker-dealers (investment banks) are getting sued by investors, insurers, counterparties on credit default swaps, government agencies who have already paid for alleged losses, and government agencies that have paid on guarantees for mortgages that did not conform to the required industry-standard underwriting practice. This latest decision in which the Glaski court, at the request of the banks, revisited its prior decision and then reaffirmed it as a law of the land in the state of California, is evidence that the courts are turning the corner in favor of the real creditors and the real debtors. The recusal by two judges on the California Supreme Court is interesting but at this point there are no conclusions that can be drawn from that. This opens the door in the state of California for people to regain title to their property or damages for the loss of title. It also serves to open the door to discovery of the actual money trail in order to trace real transactions as opposed to fictitious ones based upon fabricated documentation which often contain forgery, backdating, and are signed by people without authority or people claiming authority through a fictitious power of attorney. Glaski Court Reaffirms Law of the Land In California: If you don’t own the home loan debt , you cannot collect on it.
