Wrongful Foreclosure By Nonholder Of The Deed of Trust

Glaski’s Theory of Wrongful Foreclosure

Glaski’s claim that the foreclosure was wrongful is based on;

  1. The claim that paragraph 22 of the Glaski deed of trust allows only the lender-beneficiary (or its assignee) to
    • accelerate the loan after a default and
    • elect to have the Property sold, and
  2. The claim that a nonholder of the deed of trust, rather than the true beneficiary, instructed California Reconveyan to foreclose on the property.

Glaski claims that the WaMu Securitized Trust’s corpus was a pool of residential mortgage notes allegedly secured by liens on residential real estate, and that section 2.05 of “the Pooling and Servicing Agreement” required that all mortgage files transferred to the WaMu Securitized Trust be delivered to the trustee or initial custodian of the WaMu Securitized Trust before the closing date. The trustee or initial custodian was required to identify all such records as being held by or on behalf of the WaMu Securitized Trust prior to the closing date; Glaski’s note and loan were not transferred to the WaMu Securitized Trust prior to the closing date; the assignment of the Glaski deed of trust did not occur by the closing date is December 2005; the transfer to the trust attempted by the assignment of deed of trust did not occur by the closing date in December 2005; Due to the pooling and servicing agreement as well as the legislative restrictions applicable to a Real Estate Mortgage Investment Conduit (REMIC) trust, the WaMu Securitized Trust could not have accepted the Glaski deed of trust after the closing date, rendering the attempted assignment useless.

Wrongful Foreclosure by a Nonholder of the Deed of Trust

The argument that a foreclosure was illegal because it was started by a nonholder of the deed of trust has been rephrased as either

  1. The foreclosing party lacking standing to foreclose or
  2. The chain of title relied on by the foreclosing party having breakdowns or defects.

“Several courts have recognized the existence of a valid cause of action for wrongful foreclosure where a party alleged not to be the true beneficiary instructs the trustee to file a Notice of Default and initiate nonjudicial foreclosure,” the district court stated in Barrionuevo v. Chase Bank, N.A. (N.D.Cal.2012) 885 F.Supp.2d 964. We agree with this statement of the law but feel that properly establishing a cause of action under this theory necessitates more than just asserting that the defendant who used the power of sale was not the real beneficiary of the deed of trust. A plaintiff utilizing this argument must instead establish facts demonstrating that the defendant who used the power of sale was not the genuine beneficiary.

Borrower’s Standing to Raise a Defect in an Assignment

One reason for contending that a foreclosing party did not have the deed of trust is because the assignment it relied on was unsuccessful. When a borrower claims that an assignment was unsuccessful, the issue of the borrower’s standing to contest the loan’s assignment (note and deed of trust)—an assignment to which the borrower is not a party—comes up frequently.

In a secondary authority, California’s interpretation of the principle respecting a third party’s power to challenge an assignment is stated as follows:

  1. “When an assignment is only voidable at the assignor’s discretion, third parties, notably the obligor, cannot legally challenge the transfer’s validity or effectiveness.” Assignments, 7 Cal.Jur.3d (2012), 43.)
  2. This remark implies that a borrower can contest an assignment of his or her note and deed of trust if the alleged fault renders the assignment void. We agree with this interpretation of the law and turn to whether Glaski’s accusations have articulated a theory under which the challenged assignments are void, not just voidable.
  3. We disagree that a borrower’s challenge to an assignment must fail once it is determined that the borrower was not a party to the assignment agreement or a third-party beneficiary of it. Cases that take that stance “paint with a broad brush.” (Culhane v. Aurora Loan Services of Nebraska, supra, 708 F.3d at p. 290; Culhane v. Aurora Loan Services of Nebraska, supra, 708 F.3d at p. 290.) Instead, the courts should consider whether the assignment was valid.

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Voidness of a Post–Closing Date Transfers to a Securitized Trust

The WaMu Securitized Trust “did not have standing to foreclosure on the. Property, as Defendants cannot disclose the whole chain of title of the note and the [deed of trust],” according to the SAC.

The SAC cites two alternative chains of title under which Bank of America, as trustee for the WaMu Securitized Trust, may claim to be the holder of the Glaski deed of trust, and contends that each chain of title has the same flaw—a transfer that happened after the trust’s closing date.

First, Glaski considers whether;

  1. Bank of America’s chain of title is based on its role as successor trustee for the WaMu Securitized Trust, and
  2. The Glaski deed of trust became part of the WaMu Securitized Trust’s property when the securitized trust was established in 2005.

The SAC claims that WaMu failed to transfer Glaski’s note and deed of trust into the WaMu Securitized Trust before the pooling and servicing agreement’s closing date. If WaMu’s attempted transfer was invalid, Bank of America could not claim ownership of the Glaski deed of trust solely by virtue of being the WaMu Securitized Trust’s successor trustee.

Second, Glaski discusses the likelihood that Bank of America bought Glaski’s deed of trust from JP Morgan, which might have bought it from the FDIC. This second chain of title, according to Glaski, is also flawed since JP Morgan attempted to transfer the Glaski deed of trust to Bank of America, as trustee for the WaMu Securitized Trust, after the trust had closed. JP Morgan’s attempted assignment of the deed of trust to the WaMu Securitized Trust in June 2009, according to Glaski, occurred long after the WaMu Securitized Trust had closed (i.e., 90 days after December 21, 2005).

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