Wednesday, August 7, 2013

How To Request the California Court of Appeal Publish its Decision in Glaski v. Bank of America



Researched by Keith Schartz.

 This is for informational purposes only for anyone interested in requesting the publication of the Thomas A. Glaski, Plaintiff and Appellant v. Bank of America, National Association et al., Defendants and Respondents  Opinion, Case F064556 rendered, filed July 31, 2013 out of the Fifth Appellate District,  Court of Appeal of the State of California.  The case opinion is available for viewing but cannot be cited or relied upon by the court or parties until an order for publication is given except under strict reasons given for using unpublished opinions. See Rules of Court, CA, for guidance.

The court ordered the opinion not to be published in the official reports.

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REQUEST FOR PUBLICATION:


   Any interested individual can request publication. The California Rules of Court has the general rules for requesting publication. 

SSee CA Rules of Court, Title 8, and Division 5, 8.1100 through 8.1125. Rules 8.1105 (c) and 8.1120 are keys here.  http://www.courts.ca.gov/2997.htm



2.       Rule 8.1120 gives the general procedure.  Write a concise business style letter identifying yourself, why you are an interested party and the reasons you think the opinion should be published.





3.    Rule 8.1105 c gives the list of key reasons for publication. Here are some examples: 

  • establishes a new rule of law; applies an existing rule of law to a set of facts significantly different from those stated in published opinions
  • modifies or criticizes with reasons given, an existing rule of law; addresses or creates an apparent conflict in the law; 
  • involves a legal issue of continuing public interest;   
  • invokes a previously overlooked rule of law; reaffirms a principle of law not applied in a recently reported decision; 
  • makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute or other written law; 
  • or is accompanied by a separate opinion concurring or dissenting on a legal issue, 
  • and publication  of the majority and separate opinions would make a significant contribution to the development of the law.

 SEND TO:


  1. Send the original signed letter with 3 copies to the Fifth Appellate District, CA Court of Appeal, 2424 Ventura St., Fresno, CA  93721. .  A Proof of Service for the interested parties is required to accompany the letter to the court. http://www.courts.ca.gov/2997.htm then to Forms and Rules, to Judicial Council Forms then to Proof of Service  APP-009.
  2.  Send a copy by mail or deliver by personal delivery a copy to the named defendants or their attorneys, and to the plaintiff attorney:
    1. Attorney for Plaintiff Glaski: Law Offices of Richard Antognini, 819 I Street, Lincoln, CA 94568, ph. 916645-7278 
    2. Attorney for Plaintiff Glaski: Law Offices of Catarina M. Benitez, 2014 Tulare St., Ste. 400, Fresno, CA 93721, ph. 559 472-7337 
    3. Attorneys Theodore Bacon and Mikel Glavinovich for the Defendants Bank of America and National Association, et al:  AlvaradoSmith Law Offices, 633 West Fifth St., Ste. 1100, Los Angeles, CA 90071 Attn: T. Bacon and M. Glavinovich

Since the filing was the 31st of July there are 20 days from that day or through Aug. 19 to file requests for publication. The earlier they are sent the better according to the Fifth District clerk’s office.

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 SAMPLE LETTER
Prepared by Charles W. Cox, California Contract Paralegal


 
Date


Hon. Donald R. Franson, Jr.
Hon. Rebecca A. Weisman
Hon. Stephen Kane
California Court of Appeal
Fifth Appellate District
2424 Ventura Street
Fresno, CA 93721

Re:       Glaski v. Bank of America, National Association et     al.         
         Case No. F064556, Decision Filed July 31, 2013

REQUEST FOR PUBLICATION OF OPINION

Dear Justices of the Court of Appeal:
            Pursuant to California Rules of Court (“CRC”), Rule 8.1120(a) et seq., I am writing to respectfully and timely request certification for publication of the Court’s entire Opinion or in the alternative, partial publication of Parts III. et seq. and IV.B., for the case captioned above.  
                  My interest in this request relates to  _____[your situation]______; and the application, interpretation, clarification and addressing of the facts in this instant case by the Appellate Court and its distinguishing other holdings involving legal issues of continuing public interest as well as clarification of certain specifics related to this field of litigation as the Opinion(s) may apply to other cases more readily once published. 

            The Opinion meets the standard for publication as authorized by CRC, Rule 8.1105(c) which provides that an opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:
(1) Establishes a new rule of law;
(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
(5) Addresses or creates an apparent conflict in the law;
(6) Involves a legal issue of continuing public interest;
(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

    
            I contend the Court’s well-reasoned Opinions contained therein accordingly satisfy sub-sections 2, 3, 5, 6, and 8 as referenced above more specifically related to Sections III. sub-sections A-H and Section IV. sub-section B.
            Section III.A.  Although failing to address the actual ownership of the purported note and its transfer by indorsement; clarifies securitization issues related to the lack of transfer of the deed of trust into the securitized trust after the closing date was not acceptable due to the controlling “pooling and servicing agreement” and statutory requirements applicable to a Real Estate Mortgage Investment Conduit (REMIC) trust; which is further clarified in FN 12 with appropriate citations.  This meets the standard for publication per CRC, Rules 8.1105(c)(3, 5, 6 and 8).
            Section III.B.  Clarifies previous issues and opinions related to the wrongful foreclosure by a nonholder of the deed of trust or a party alleged not to be the true beneficiary instructs the trustee to file a Notice of Default and initiate nonjudicial foreclosure which conflicts with other holdings, adopts more applicable holdings and further clarifies that a plaintiff must allege facts that show the defendant who invoked the power of sale was not the true beneficiary.  This meets the standard for publication per CRC, Rules 8.1105(c)(3, 5, 6 and 8).
            Section III. C.  An ongoing argument continues in these cases related to this section which addresses the borrower’s standing to raise a defect in an assignment of a deed of trust not held by the foreclosing party was ineffective.  The Court adopted a proper but uncommon view by other courts where the challenged assignments are void or merely voidable.
  
This is an important opinion for these cases not previously popularized by other opinions clarifying the question of whether the purported assignment was void was not dependent on whether the borrower was a party to or third party beneficiary of the assignment agreement.  This meets the standard for publication per CRC, Rules 8.1105(c)(2, 3, 5, 6 and 8).
            Section III.D.  Previous cases have been all over the board related to or ignoring the voidness of post-closing transfers of notes and deeds of trust into securitized trusts; generally ruling the borrower as a third party had no say or ability to contest such or that securitized trust closing dates are meaningless.  Also addressed by the Court were corresponding chain of title issues related to such transfers and whether defendants’ claims of being the holder can be effective when a supposed transfer occurred after such closing date.
            Further and very important issues related to the application of New York Trust law as governing such operations of the trusts, creation thereof, sales, conveyances and other acts of the trustee in contravention of the trust not authorized by such New York laws are in fact void, not merely voidable.  The Court also addressed the application of the pooling and servicing agreements, established closing dates and legal basis’ for any late assignment being void.
            Accordingly, the Court’s interpretation and application of other courts reading of New York statutes literally are well-reasoned and uncommon if not absolutely absent in any other California case opinions or rulings whereas this Court ruled that the Glaskis’ factual allegations when occurring post-closing of the trust were sufficient to state a basis for concluding the attempted transfers were void and a cognizable claim for wrongful foreclosure was adequately stated.  This meets the standard for publication per CRC, Rules 8.1105(c)(2, 3, 5, 6 and 8).
            Section III.E.  This section provides a rare distinguishing of the Gomes case which seems to be utilized by other courts and defendant attorneys in California whether the application applies to the actual facts of the case at bar or not.  Of particular note is the Court’s interpretation in allowing borrowers to pursue questions regarding the chain of ownership and such compatibility with Herrera as opposed to Gomes under the circumstances of this and many other cases.  The opinions made by the Court clarify Important distinguishing characteristics that need publication as authorized by the standards for publication CRC, Rules 8.1105(c)(3, 5, 6 and 8).
            Section III.F.  The tender argument comes up in virtually all these cases and is continually argued by Superior Courts and defendants and their attorneys inappropriately and as uniquely clarified by this Court.  Tender is not required where the foreclosure sale is void, rather than voidable, even though citing Lester and failing to address exceptions to the tender rule as unnecessary.  This meets the standard for publication per CRC, Rules 8.1105(c)(3, 5, 6 and 8).
            Section III.G.  This is an important determination well-reasoned and simply cited.  Never the less, such an Opinion is necessary to bolster other attempts to continue to argue remedies to set aside trustees’ sales based on access to other forms of relief such as available based on a borrower such as Glaski, having the right and opportunity to prove a foreclosure sale was void based on lack of authority.  This meets the standard for publication per CRC, Rules 8.1105(c)(3, 5, 6 and 8).
            Section III.H.  Summarizes the results from the Court’s conclusions and clarifies claims that were stated and being remanded back to the trial court.
            Section IV.B.  Although this section showed ruling for the Defendants, what is significant is that Defendants’ request for judicial notice as ruled on Defendants’ behalf fails to establish facts contained in those judicially noticed documents, for the purposes of demurrer, failed to cure breaks in the chain of title because the contents of those documents could not be taken judicial notice of, merely the recording of those documents.  This meets the standard for publication per CRC, Rules 8.1105(c)(3, 5, 6 and 8).
            Based on the foregoing, I respectfully request this Honorable Court publish the above referenced Opinion.
Sincerely,


__________________

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YOUR NAME
ADDRESS
TEL
FAX
EMAIL

PROOF OF SERVICE
Glaski v. Bank of America, National Association et al.
Case No. F064556

            I, ________________, am over the age of eighteen and not a party to this action.  My business address is ____________________________.  On the date set forth below, I served the foregoing REQUEST FOR PUBLICATION OF OPINION for the above referenced case, by placing a copy of the document in a sealed envelope with first-class postage fully prepaid placing the envelope for collection and mailing with the United States Postal Service following our ordinary business practices, addressed to:
Thomas A. Glaski
C/O
Richard L. Antognini
Law Offices of Richard L. Antognini
919 I St.
Lincoln, CA 95648

Bank of America, National Association, et al.
C/O
Theodore E. Bacon
AlvaradoSmith
1 Macarthur Pl Ste 200
Santa Ana, CA 92707



Justices
Hon. Donald R. Franson, Jr.
Hon. Rebecca A. Weisman
Hon. Stephen Kane
California Court of Appeal
Fifth Appellate District
2424 Ventura Street
Fresno, CA 93721



            I declare under penalty under the laws of the State of California that the information stated above is true and correct.

Dated: August__, 2013

By: ______________________
         

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