Thursday, August 8, 2013

WATERSHED RULING PUBLISHED TODAY IN CALIFORNIA: GLASKI v. BANK OF AMERICA

 This is a WATERSHED moment for California



08/08/2013Order granting publication filed.     As the nonpublished opinion filed on July 31, 2013, in the above entitled matter hereby meets the standards for publication specified in the California Rules of Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official Reports. (JAA)
08/08/2013Received:     request for publication submitted by atty Freshman, however pos does not include all parties ; moot since publication granted



   

5th Appellate District


Court data last updated: 08/08/2013 02:05 PM
Docket (Register of Actions)
Glaski v. Bank of America, N.A.
Case Number F064556

Date Description Notes
03/26/2012 Notice of appeal lodged/received.     Atty: Benitez obo applt. Glaski appeals from order held on 11/30/11
03/26/2012 Filing fee.     atty: Benitez obo applt. Glaski $655
03/26/2012 Letter to counsel - 10 days to file case information statement.     & Mediation Screening Questionnaire to Atty: Benitez obo applt. Glaski (forms enclosed)
03/26/2012 Notice per rule 8.124 - with reporter's transcript.     by atty: Benitez obo applt Glaski dated 2/27/12
03/29/2012 Association of attorneys filed for:     Richard L. Antognini by atty Benitez obo applt
04/05/2012 Telephone conversation with:     Atty: Barragan secretary; placed mediation questionnaire in today's mail.
04/06/2012 Received fax informational copy of:     mediation Questionnaire by atty: Barragan/Respondnet Bank of America (to JAH)
04/16/2012 Appellant's Questionnaire received.     for mediation screening by atty: Benitez (JAH)
04/16/2012 Civil case information statement filed.     By Atty: Benitez obo applt. Glaski
04/17/2012 Letter sent to:     counsel and Fresno Superior Court; The Court has determined that the above entitled appeal is not suitable for mediation. Pursuant to Court of Appeal, Fifth District, Local Rules, rule 2 (Mediation in Civil Appeals), the suspension of the operation of California Rules of Court, rules 8.121, 8.124 and 8.216 requiring designation of the record on appeal, payment of the estimated costs of preparation of the record on appeal and submission of a proposed briefing schedule is terminated as of this date. You are directed to comply immediately with the applicable California Rules of Court.
04/19/2012 Notice to reporter to prepare transcript.     Sent to ctrr McKennon on 04/19/12
05/01/2012 Received:     RAF - correction requested - RT by ctrr McKennon, heading on cover sheet not titled as to this court; from superior court clerk.
05/01/2012 Record returned to county for corrections.     RT with Docket Report
05/01/2012 Letter sent to counsel re:     record correction requested
05/04/2012 Received corrected transcript.     RT by ctrr McKennon (correction not needed)
05/04/2012 Record on appeal filed.     R1/5 pages; letter sent to all parties re aao due in 40 days.
05/04/2012 Received document entitled:     Superior Court Custom Docket Query Report
06/12/2012 Received copy of     (fax copy provided by runner) application for extension of time to file brief submitted by Antognini obo applt
06/14/2012 Requested - extension of time  

Appellant's appendix and opening brief filed. Requested for 08/13/2012 By 61 Day(s)  
1st req, 60 days. to PJ
06/15/2012 Granted - extension of time.  

Appellant's appendix and opening brief filed. Due on 08/13/2012 By 61 Day(s)  
1st req, 60 days OK BY PJ, no further etc.
08/13/2012 Stipulation filed to:     to extend time file aao; to PJ for approval
08/13/2012 Received copy of     stipulation to extend time to file aob by atty Antognini
08/14/2012 Stipulation of extension of time filed to:  

Appellant's appendix and opening brief filed. Due on 08/31/2012 By 18 Day(s)  
8/31/12, 1st request after 60-day eot approved by PJ
09/10/2012 Appellant notified re failure to timely file opening brief. Plaintiff and Appellant: Thomas A. Glaski
Attorney: Catarina Maria Benitez
Attorney: Richard Lawrence Antognini    
09/25/2012 Appellant's appendix and opening brief filed. Plaintiff and Appellant: Thomas A. Glaski
Attorney: Catarina Maria Benitez
Attorney: Richard Lawrence Antognini     CIP included; 2 volumes of appendix, 1 volume of appendix of unpublished federal cases; copy to CSMGR
09/25/2012 Request for judicial notice filed.     atty Benitez obo applt; held for 15 days for possible opposition (W&M)
10/09/2012 Received:     stipulation for eot for rb, however representative of applt not served on pos
10/09/2012 Telephone conversation with:     Steve with atty Barragan's office; will submit an amended pos for stipulation and responsive fee
10/09/2012 Filing fee.     Responsive fee
10/10/2012 Filed proof of service.     Amended for stipulation
10/10/2012 Stipulation of extension of time filed to:  

Respondent's Appendix and Respondent's Brief filed. Due on 11/26/2012 By 32 Day(s)  
11/26/12, 1st stipulation
10/11/2012 To court.     Req for judicial notice filed 9/25/12
10/11/2012 Opposition filed.     Respondent's objection to appellant's request for judicial notice submitted by atty Glavinovich (W&M)
10/15/2012 Ruling on request for judicial notice deferred.     Ruling on appellant's request to take judicial notice filed on September 25, 2012, asking this court to take judicial notice of the items described on page RJN 000001 of the above mentioned motion, is deferred pending further order of court. (W4)
11/27/2012 Respondent's Appendix and Respondent's Brief filed. Defendant and Respondent: JP Morgan Chase Bank, N.A.
Attorney: Mikel Allison Glavinovich     1 volume of appendix; pursuant to 8.25(b)
12/14/2012 Stipulation of extension of time filed to:  

Appellant's reply brief filed. Due on 01/17/2013 By 31 Day(s)  
1st stipulation for EOT of ARB.
01/17/2013 Appellant's reply brief filed. Plaintiff and Appellant: Thomas A. Glaski
Attorney: Catarina Maria Benitez
Attorney: Richard Lawrence Antognini    
01/17/2013 Case fully briefed.    
04/19/2013 Oral argument waiver notice sent.     (Neutral) #29 JAA
04/25/2013 Received fax informational copy of:     REQUEST FOR O/A BY ATTY GLHRINEVION OBO RESP - PERSONAL APPEARANCE & 15 MINS
04/25/2013 Received fax informational copy of:     REQUEST FOR O/A BY ATTY ANTOGNINI OBO APPLT - PERSONAL APPEARANCE & 15 MINS
05/10/2013 Calendar notice sent. Calendar date:     Wednesday, June 26, 2013 @ 1:30 PM
06/17/2013 Letter sent to counsel re:     The other line of case holds that allegations of an attempted assignment after the closing date of the securitized trust can provide grounds for relief. (E.g., Naranjo v. SBMC Mortgage (S.D.Cal. Jul. 24, 2012, No. 11-CV-2229-L(WVG)) 2012 WL 3030370 at p. 3 [allegations of ineffective post-closing assignment supported the claim that the defendants lacked the legal right to either collect on the debt or enforce the underlying security interest]; Johnson v. HSBC Bank USA, National Association (S.D.Cal. Mar. 19, 2012, No. 3:11-CV-2091-JM-WVG) 2012 WL 928433; Vogan v. Wells Fargo Bank, N.A. (E.D.Cal. Nov. 17, 2011, No. 2:11-CV-02098-JAM-KJN) 2011 WL 5826016, at p. 7 [allowing § 17200 claim when plaintiffs alleged that assignment was executed after the closing date of securities pool, "giving rise to a plausible inference that at least some part of the recorded assignment was fabricated"].) 2. New York trust law. The second line of cases concern the impact of a New York statute governing trusts on the question whether the post-closing date transfer is void or voidable. The statute, New York Estate Powers & Trusts Law section 7-2.4, provides that acts done in contravention of written trust instruments are void. "Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void." (Wells Fargo Bank, N.A. v. Erobobo (Apr. 29, 2013) 39 Misc.3d 1220(A), 2013 WL 1831799, slip opn. p. 8; see Levitin & Twomey, Mortgage Servicing (2011) 28 Yale J. on Reg. 1, 14, fn. 35 [under New York law, any transfer to the trust in contravention of the trust documents is void].) In In re Saldivar (Bank. S.D.Tex. Jun. 5, 2013) 2013 WL 2452699, the bankruptcy judge concluded "that under New York law, assignment of the Saldivar's Note after the start up day is void ab initio. As such, none of the Saldivars' claims will be dismissed for lack of standing." (Id. at p. 4.) In contrast, other federal courts sitting in Texas have concluded that the post-closing-date defect merely renders the assignment voidable and, therefore, the borrower (as a third party to the transaction) lacks standing to assert the defect. (Calderon v. Bank of America, N.A. (W.D.Tex. Apr. 23, 2013, No. SA:12-CV-00121-DAE) ___ F.Supp.2d ___, 2013 WL 1741951, at p. 12 [transfer of plaintiffs' note, if it violated PSA, would merely be voidable and therefore plaintiffs do not have standing to challenge it].) 3. Tax Code Provisions Governing REMIC. In addition, counsel should be prepared to address whether Glaski's allegations regarding the requirements imposed on REMIC trust have any impact on the question of standing and the analysis of the two splits in authority. (See Oppenheim & Trask-Rahn, Deconstructing the Black Magic of Securitized Trusts: How the Mortgage-Backed Securitization Process is Hurting the Banking Industry's Ability to Foreclose and Proving the Best Offense for a Foreclosure Defense (2012) 41 Stetson L. Rev. 745, 757-758 ["Once the bundled mortgages are given to a depositor, the [pooling and servicing agreement] and IRS tax code provisions require that the mortgages be transferred to the trust within a certain time frame, usually ninety dates from the date the trust is created. After such time, the trust closes and any subsequent transfers are invalid. The reason for this is purely economic for the trust. If the mortgages are properly transferred within the ninety day open period, and then the trust properly closes, the trust is allowed to maintain REMIC tax status"]; see also, Levitin & Twomey, Mortgage Servicing, supra, 28 Yale J. on Reg. at p. 14, fn. 35 ["it would not be possible to transfer the mortgage loans (the note and security instrument) to the trust after the REMIC's closing date without losing REMIC status"].)
letter emailed to parties
06/17/2013 Letter sent to counsel re:     The court has directed me to send the following request in anticipation of oral argument. Background. Appellant Glaski contends that the parties to the foreclosure lacked the authority to foreclose because the beneficial interest created by his deed of trust was not actually held by a party to the foreclosure process. Glaski supports this contention by alleging two separate and distinct breaks in the chain of title of that beneficial interest. The matters raised in this letter concern the alleged break in the chain resulting from the ineffective attempt to transfer Glaski's deed of trust to the securitized trust for WaMu Mortgage Pass Through Certificates Series 2005-AR17. Glaski has alleged that (i) the securitized trust was formed under New York law and (ii) the attempted transfer occurred "after the Closing Date pursuant to the PSA [Pooling and Servicing Agreement] and the requirements for a REMIC [Real Estate Mortgage Investment Conduit] Trust." (1 AA 184:11-12 & 191:17-18.) These allegations are relevant to recent cases that have created splits in authority. The purpose of this letter is to bring the splits and related cases to the attention of counsel so that they are prepared to discuss the cases at oral argument. 1. Post-Closing Date Transfers. The first split was created by federal district courts sitting in California that addressed whether a borrower had stated a cognizable claim for relief by alleging his or her loan was assigned to the securitized trust after the trust's closing date. One line of cases holds that the borrower lacks standing to challenge the validity of an assignment when the borrower is not a party to the assignment agreement or a third party beneficiary of the agreement. (E.g., Gilbert v. Chase Home Finance, LLC (E.D.Cal. May 28, 2013, No. 1:13-CV-265 AWI SKO) 2013 WL 2318890; Baldoza v. Bank of America, N.A. (N.D.Cal. Mar. 12, 2013, No. C 12-05966 JCS) 2013 WL 978268; Aniel v. GMAC Mortgage, LLC (N.D.Cal. Nov. 2, 2012, No. C 12-04201 SBA) 2012 WL 5389706 [joining courts that held borrowers lack standing to assert the loan transfer occurred outside the temporal bounds prescribed by the pooling and servicing agreement]; Almutarreb v. Bank of New York Trust Co., N.A. (N.D.Cal. Sept. 24, 2012, No. C 12-3061 EMC) 2012 WL 4371410.)
06/27/2013 Cause argued and submitted.     @ 1:30 PM (#29 JAA)
07/31/2013 Opinion filed.     (Signed Unpublished) The judgment of dismissal is reversed. The trial court is directed to vacate its order sustaining the general demurrer and to enter a new order overruling that demurrer as to the third, fourth, fifth, eighth, and ninth causes of action. Glaski's request for judicial notice filed on September 25, 2012, is denied. Glaski shall recover his costs on appeal; Franson, Wiseman, Kane; 29 pages.
opinion ordered published on 8/8/13
08/05/2013 Filed request to publish opinion.     Atty Antognini obo applt Glaski (JAA)
08/05/2013 Filed request to publish opinion.     atty Didak (JAA)
08/08/2013 Order granting publication filed.     As the nonpublished opinion filed on July 31, 2013, in the above entitled matter hereby meets the standards for publication specified in the California Rules of Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official Reports. (JAA)
08/08/2013 Received:     request for publication submitted by atty Freshman, however pos does not include all parties ; moot since publication granted
08/08/2013 Received:     request for publication submitted by atty Perry, however pos does not include all parties; moot since publication granted














 Timothy Y. Fong says:
It’s published, as of this morning.
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