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Rescission: The Ins and Outs

For more information please call 954-495-9867 or 520-405-1688.

My administrative assistant is Susan Rose. She speaks for me but she is not a lawyer and cannot answer legal questions. This blog and the included articles are not legal opinions on any specific case and should never be used as a substitute for advice from a knowledgeable attorney who is licensed in the jurisdiction in which the property is located.

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So due to scheduling conflicts I can’t do the radio show tonight. Sorry. But here is what I will cover next week along with some late=breaking news regarding MERS and damage cases against the banks, servicers and their lawyers.

RESCISSION: I have received hundreds of requests and questions. It boils down to one thing — the rescission IS EFFECTIVE the moment it is dropped in the mail. People, lawyers and even Judges seem not to understand what that means despite a very terse snip from Justice Scalia speaking for an unusually unanimous Supreme Court in Jesinowksi. What it means is that the deal is done, canceled, rescinded (stick a fork in it). And what it also means is that the time starts to run on the duties of the “lender(s)” to comply with that cancellation/rescission. Telling you in a letter that you had no right to send it is NOTHING, as a matter of law.

So whether you were right or wrong when you sent the notice of rescission the deal was canceled. Anyone who interprets it differently is doing two things that are wrong: (1) interpreting that which is clear and ruled upon by the highest court in the land and (2) getting it exactly wrong.

There is no other interpretation of “effective” because the Supreme Court under the annoyed pen of Justice Scalia has said there is nothing to interpret. When the rescission was mailed it was effective BY OPERATION OF LAW.

During the 20 days, the duties of the “lender” or “creditor” are clear: (1) return the canceled note (2) file a satisfaction of mortgage and (3) return all money paid by borrower. If the banks fail to do that they have violated the statute. If anyone takes issue with whether the rescission should be effective this way, they would need to file a lawsuit within the 20 days allowed for performing the duties under TILA (see above). If they want to say the statute of limitations has run, they must do it in a lawsuit filed within the 20 days. Otherwise the window closes. If they want to say it was a purchase money mortgage and that the borrower rescinded a loan that could not be rescinded under TILA, they must do it in lawsuit filed within the 20 days. There are questions of fact in all these “defenses” as to whether it was really beyond the statute of limitations or really a purchase money mortgage (when coupled with a HELOC etc).

Everyone is having trouble with this after years of incorrect rulings from thousands of courts “interpreting” the statute (which was clear and thus not subject to interpretation). So here it is:

IF NOTICE OF RESCISSION IS SENT THE LOAN IS OVER AND THE NOTE AND MORTGAGE ARE VOID BY OPERATION OF LAW — NO LAWSUIT OR TENDER OF MONEY OR PROPERTY REQUIRED. PERIOD.

It apparently seems too simple, too powerful for people to accept. In one punch they could flatten a trillion dollar giant? The answer is yes. Stop over thinking this. Our rescission package analyzes your loan and gives you options and ways to utilize rescission and related actions to enforce rescission and quiet title. After 20 days the deal is over and no longer subject to attacking the rescission. But we know the Banks, servicers etc. are going to try to “defend” after the 20 days. So you need to know how the effects of rescission can be jammed down their throats and how it automatically frees your property from the encumbrance of the mortgage —regardless of whether or not anyone actually filed the satisfaction of mortgage. In fact, the statute bars any action by the “lender”until they have complied totally with the three duties outlined above.

Get it? If not, tune into the Neil Garfield Show next week.

CA Appelate Decision: Damage Claims Against OneWest Goes to Jury, Summary Judgment reversed

For further information please call 954-495-9867 or 520-405-1688

Sue Rose is my new administrative assistant. Danielle and Geordan do not work for livinglies or the Garfield firm. If you have placed an order which is unfulfilled please call the above numbers.

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see CA Appeals OrderReversesMSJ

This case allows the jury to hear claims against OneWest for fraud, negligent misrepresentation, concealment, promissory estoppel, negligence, wrongful foreclosure, and violation of CA Business and Professional Code.

Here is an example of the obvious: a Judge takes no risk in denying a motion for summary judgment. It is only when the Judge grants summary judgment that there is a risk of reversal. With the current judicial climate changing in favor of borrowers, [including findings that the mortgage was absolutely void (invalid, non-perfected) where a sham nominee like MERS was used], Judges should take note that they are better off getting in front of the new trend and allow borrowers’ claims to be heard in a fair manner, observing the requirements of due process.

If the Banks collapse because they created 100 million invalid mortgages, that is not a problem for the Judge. And, as I have said many times here, there are 7,000 banks and credit unions that can take up whatever falls out of the mega banks as a result of investors and regulators realizing that the mortgages are void, the assets on bank balance sheets don’t exist or are far overvalued, and the liability section of the bank balance sheet is far understated as a result of damage claims like the one featured in this article.

As noted earlier on these pages, the threshold legal question has been reversed. The question now is what difference does it make if the borrower is in default if the foreclosing party had no right to foreclose?  The previous question that I heard hundreds of times from the Judges themselves was incorrect from the beginning. Their question was what difference does it make if the loan was securitized, as long as the borrower is in default? And that is where the dissenting justice in this case also got it wrong. He is still assuming that these loan transactions were in fact consummated as reflected in the alleged loan documents. The underlying assumption of the dissenting judge is obvious: that the loan contracts were fundamentally valid and whatever defects existed could be corrected before or even during foreclosure. NOT TRUE!

Here in this case is an example of how judges are now perceiving the entire loan transaction instead of just the claim of a default. And the result is that this California appellate court decided to let the case go to trial and allow a jury to hear the claims against OneWest, whose behavior was predatory from the start of when they acquired IndyMac business in 2008-2009.

The appellate court reversed the trial judge who had granted Summary Judgment for OneWest — a little plaything organized over a weekend by some of the richest people in the country. On a net basis they paid nothing and made a ton of money off of loss sharing and guarantee payments from the FDIC and and the GSE’s respectively. They also foreclosed on thousands of homes in cases where they had no interest in the loan and no right to foreclose, collect or do anything else with respect to the loan.

The hidden issue here is whether the Judge, having been reversed, will now allow the homeowner’s attorney to probe deep into the dealings of OneWest during discovery. I suspect that the trial judge will allow more liberal discovery after being reversed. And if that happens you might not never hear about this case again — as it joins the tens of thousands of cases that have been settled under seal of confidentiality. Essentially the strategy of the banks is that if they lose, they can always pay off the homeowner to keep the case from being publicized.

Tom Ice Uncovers Robowitness Script!

see http://www.dailybusinessreview.com/id=1202726876952/Thomas-Ice-Ocwen-Lawyer-SpoonFed-Questions-and-Answers-to-RoboWitnesses#ixzz3acD4fkZE

It was no surprise that the script existed for the “corporate representatives” who testify in court. And it shouldn’t be any surprise that Tom Ice uncovered it. These are robo-witnesses. In nearly all cases, the witness never worked for the bank or servicer other than testifying to facts they knew nothing about. If you sit in any foreclosure courtroom you will hear the exact same questions and the exact same answers every time for every bank and every servicer.

As many of us have previously pointed out — these scripts are obviously prepared by lawyers and used by lawyers who treat these witnesses like trained monkeys. Some lawyers have gotten into trouble for fabricated documents. Now it looks like they will get into trouble for fabricating testimony.

So you have a witness who might never have worked for any bank or servicer testifying as to their confidence that the information and documents presented in court are correct. Why do they say that? Because it is in the script and for no other reason. They are actors that cannot withstand a thorough cross examination. And that is the whole point. If you do the numbers, the banks and servicers lose a lot of cases now but the overwhelming majority of cases filed in Florida end up with a Foreclosure Judgment based upon the testimony of an incompetent witness.

In order to be a competent witness, the person MUST have all four of the following attributes:

  • Willing to take an oath
  • Personal knowledge of the matters asserted. The witness must have seen or heard something. And that “something” must be probative of the claims.
  • Personal recollection
  • Ability to communicate those perceptions

Next Week on the Neil Garfield Show: HUGE DECISION Expected in Arizona Federal Court

Personal commitments have forced me to take the day off from the show this week, but I’ll be back next week.

I have learned of a court proceeding in which the Judge expressed the opinion that in order for any of the mortgages to be valid (where MERS is involved) they would have to redraft the mortgage without MERS and get the borrower to sign a new one. Exactly what I said in 2007. Only now we have over 7 million illegal foreclosures based upon fraudulent and illegal mortgages and notes. MERS’ attorney estimated that the total number of mortgages affected could be 100 million. The Judge basically said it wasn’t his problem — it was the problem of the banks and MERS who devastated title records.

The question asked in Arizona Federal Court: Is there any case or statute under which MERS could be beneficiary of a deed of trust? The answer is no. Thus they cannot be the beneficiary, even for one second. Their title as “nominee” is as good as saying Donald Duck is the lender. MERS and Donald share something: they are both fictional characters.

LIBOR Manipulation May Nullify Adjustable Rate

For more information please call my administrative assistant, Susan at 954-495-9867 or 520-405-1688.

Please note: Danielle and Geordan are no longer working for livinglies or my law firm. With the change in personnel and some problems with our systems, it is possible for orders to have been placed without being processed. If you have placed an order that is unfulfilled, please call the numbers above. Have your receipts for payment available when you call.

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see http://mobile.nytimes.com/2015/05/21/business/international/ubs-to-pay-more-than-500-million-in-fines-for-manipulating-currency-and-libor.html?_r=0

Many of the alleged mortgage loans have documents that provide for adjustment of the interest rate and the monthly payment — some as early as 30 days and some as far out as 5 years. These adjustments are expressly stated in the note as being based on changes on certain indexes. LIBOR (London Interbank Offered Rate is usually a component of the basis for the adjustment. But, as we have seen on multiple occasions (such as the one in the link above) LIBOR was manipulated and fabricated by the Banks whose reports are used to determine the LIBOR index.

Many Banks have been fined as a result of their illegal activities. My opinion, as an expert, is that the adjustment to rates and payments on notes and mortgages based at least in part on LIBOR are definitely inaccurate. AND there is no way of knowing the true rate without finding out the exact manipulations that occurred and the effect on the index. The note was drafted by the “lender.” So it is to be construed against the party who wrote it — either by or for the originator.

If the actual adjustment cannot be computed because the index upon which it is based was fatally flawed, then the adjustment should not occur unless the parties agree on the amount of adjustment. If I am right, most of the adjustments that have been declared by servicers and banks are (a) wrong and (b) illegal — as a result of their own illegal activities in manipulating LIBOR. Even if they did not participate in such illegal activity, though, the fact remains that the Index is wrong.

This could mean that borrowers who have an adjustable rate mortgage may be able to (a) reduce their payments and (b) seek disgorgement of the amount they paid over the initial monthly payment.

California Court Pierces the Curtain of Secrecy on WAMU Deals

For further information please call 954-495-9867 or 520-405-1688

NOTE: My new administrative assistant is Susan Rose. Danielle and Geordan no longer work for livinglies or my law practice.

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Hat Tip to Dan Edstrom, DTC Systems, our senior forensic analyst.

This decision finally brings the real issue to the forefront: who, if anyone, actually has the legal status of creditor or the right to claim ownership of the debt, loan, note or mortgage? In this case the Court correctly centered on the real issue: if WAMU had ALREADY sold the loan before it “sold” the loan to a trust or anyone else, then the entire chain is not just defective, or corrupted, it is void. And then you have quiet title, wrongful foreclosure and probably RICO although that does not seem to be in the pleadings for this case.

Lawyers take note: This Judge still doesn’t like the rambling shotgun approach seen in so many of these pleadings. If you have 50 good arguments, then take courage, pick two and run with them.

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DEBORAH BURKE and SEAN K. BURKE, Plaintiffs,
v.
JPMORGAN CHASE BANK, N.A; WELLS FARGO BANK, N.A. AS TRUSTEE FOR JPMORGAN MORTGAGE TRUST MORTGAGE PASS-THROUGH CERTIFICATE SERIES Defendants.

Case No. 13-4249 SC.United States District Court, N.D. California.May 11, 2015.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

****************
FAC ¶ 12. Plaintiffs provide significant detail regarding the process through which
WaMu
 allegedly sold their loan. See id. ¶¶ 12-19.
*****************

II. BACKGROUND

Plaintiffs allege that on or before August 22, 2008, their mortgage loan was contributed to a mortgage backed security (“MBS”) identified as JPMorgan Mortgage Trust 2008 R-2 Pass-through Certificates Series 2008-R2 (“JPMMT 2008R2″), of which Wells Fargo is the trustee. Id. ¶ 12. Plaintiffs allege that WaMu sold their mortgage loan temporarily to the depositor of the JPMMT 2008-R2, but that the sale failed to assign the DOT. Id. ¶ 16. As Plaintiffs, put it, “[t] his was the first sale of the Plaintiff’s mortgage loan, but without effectively assigning the [DOT] and indorsing the underlying original Promissory Note to the interim loan purchaser. . . .” Id. Next, JP Morgan Acceptance Corporation “sold and securitized the pooled mortgages (including Plaintiffs’ mortgage loan) into the JPMMT 2008-R2 Trust” on or before the trust’s “closing date” on August 22, 2008. Id. Plaintiffs allege that this sale, too, failed to properly assign the DOT or original note. Id.
. . . . .

IV. DISCUSSION

Though Plaintiffs’ FAC is verbose, unclear, and at times appears internally inconsistent, Plaintiffs now allege, at the very least, that:

WAMU irrevocably sold all right, title and interest in Plaintiffs’ mortgage loan, for value received, to the JPMorgan Mortgage Trust 2008-R2 Mortgage Pass-through Certificates Series 2008-R2 (“JPMMT 2008-R2″), a private label mortgage-backed securities trust with a Real Estate Mortgage Investment Conduit election and continuing qualification.

FAC ¶ 12. Plaintiffs provide significant detail regarding the process through which WaMu allegedly sold their loan. See id. ¶¶ 12-19.

Plaintiffs now sufficiently allege that WaMu not only had no beneficial interest in the Loan, but that it was no longer the mortgagee when JPMorgan purchased its assets. Because Plaintiffs now allege that WaMu sold its entire interest in the Loan, the facts render plausible the possibility that Defendants lack standing to foreclose on the mortgage. See, e.g., Subramani, 2013 WL 5913789, at *4Javaheri v. JPMorgan Chase Bank, N.A., No. CV10-08185 ODW FFMX, 2011 WL 2173786, at *5 (C.D. Cal. June 2, 2011) (“the above mentioned [similar] facts regarding the transfer of Plaintiff’s Note prior to JPMorgan’s acquisition of WaMu’s assets raise Plaintiff’s right to relief above a speculative level”).  . . . .
. . . . It is true that “[t]here is no stated requirement in California’s non-judicial foreclosure scheme that requires a beneficial interest in the Note to foreclose. Rather, the statute broadly allows a trustee, mortgagee, beneficiary, or any of their agents to initiate non-judicial foreclosure.” Lane v. Vitek Real Estate Indus. Grp., 713 F. Supp. 2d 1092, 1099 (E.D. Cal. 2010). However, Plaintiffs now sufficiently allege that WaMu not only had no beneficial interest in the Loan, but that it was no longer the mortgagee when JPMorgan purchased its assets. Because Plaintiffs now allege that WaMu sold its entire interest in the Loan, the facts render plausible the possibility that Defendants lack standing to foreclose on the mortgage. See, e.g., Subramani, 2013 WL 5913789, at *4Javaheri v. JPMorgan Chase Bank, N.A., No. CV10-08185 ODW FFMX, 2011 WL 2173786, at *5 (C.D. Cal. June 2, 2011) (“the abovementioned [similar] facts regarding the transfer of Plaintiff’s Note prior to JPMorgan’s acquisition of WaMu’s assets raise Plaintiff’s right to relief above a speculative level”). The Court proceeds to discuss the effect of this finding on each of Plaintiffs’ claims in turn.

. . . . .

A. Wrongful Foreclosure

Defendants argue that Plaintiffs’ first cause of action must be dismissed because Plaintiffs do not allege any irregularity or illegality in the foreclosure process. As discussed above, however, the Court finds that Plaintiffs now sufficiently allege that WaMu ceded any interest upon which it might foreclose when it sold the Loan in 2008. To the extent that Plaintiffs allege wrongful foreclosure because Defendants were not the “trustee, mortgagee or beneficiary or any of their authorized agents,” Plaintiffs state a claim and Defendants’ motion is DENIED. See Cal. Civ. Code § 2924(a)(1).

B. Quiet Title

Defendants argue that Plaintiffs’ claim for wrongful foreclosure must be dismissed because “the allegations concerning the `holder of the note’ have been invalidated.” Mot at 5. Because the Court finds that Plaintiffs have sufficiently alleged that Defendants are not the holders of the note, this argument fails. The motion is DENIED as to Plaintiffs’ second claim, to the extent that claim is premised on the allegations that Defendants do not have any interest in the note as a result of WaMu’s sale of the Loan.

. . . . .

E. Cancellation of Instruments

Defendants’ argument that Plaintiffs’ cancellation of instruments claim should be dismissed is again premised on the assumption that Plaintiffs fail to allege WaMu’s sale of the loan. See Opp’n at 8-9. Because the Court finds that Plaintiffs now adequately allege that their loan was sold, this argument fails. Defendants’ motion is DENIED as to the cancellation of instruments claim.

. . . . .

V. CONCLUSION

For the foregoing reasons, Defendants JPMorgan Chase Bank, N.A and Wells Fargo Bank, N.A.’s Motion to Dismiss is GRANTED in part and DENIED in part. All of Plaintiffs’ claims are DISMISSED with prejudice to the extent they are premised on deficiencies in the securitization process. Plaintiffs’ claim for violation of the Fair Credit Reporting Act is DISMISSED with prejudice. Plaintiffs’ claims for breach of contract and violation of the Equal Credit Opportunity Act are DISMISSED without prejudice. Plaintiffs’ claims for wrongful foreclosure, quiet title, cancelation of instruments, violation of Section 2923.5, and unjust enrichment survive to the extent that they are premised on the theory that WaMu sold its entire interest in the Loan in 2008.

Plaintiffs’ claims for slander of title, fraud, and unfair competition are DISMISSED with leave to amend. Plaintiffs may amend those claims to add allegations sufficient to allege fraud under the standards set out by Federal Rule of Civil Procedure 9(b). If plaintiffs choose to amend their complaint to add such allegations, they must do so within thirty (30) days of the signature date of this Order. Failure to amend within thirty days may result in dismissal of those claims with prejudice.

IT IS SO ORDERED.

[1] Plaintiffs also allege that Washington Mutual Bank, FA changed its name to Washington Mutual Bank in April of 2005. See id. Plaintiffs apparently assert that WaMu therefore ceased to exist as a legal entity and that JPMorgan knew it could not buy any assets (including Plaintiffs’ loan) from WaMu. Plaintiffs in foreclosure cases like this one have repeatedly advanced that theory, and courts have repeatedly rejected it. See, e.g., Lanini v. JPMorgan Chase Bank, No. 2:13-CV-00027 KJM, 2014 WL 1347365, at *3 (E.D. Cal. Apr. 4, 2014) (“Plaintiffs have cited nothing to support their claim that the bank’s change of name means the bank itself ceased to exist.”). The Court agrees with the numerous other judges who have rejected this theory and holds that Plaintiffs’ claims regarding JPMorgan’s chain of title to the mortgage and Defendants’ knowledge of their lack of interest in the Loan may not be premised on WaMu’s name change in 2005.
[2] It is unclear why Defendants make this argument only in opposition to Plaintiffs’ Section 2923.5 claim and not all of Plaintiffs’ claims. Regardless, some of the Court’s reasons for rejecting Defendants’ argument apply to all of Plaintiffs’ claims.

REMIC Trusts: VOID means VOID — Not Voidable

For further information please call 954-495-9867 or 520-405-1688

Rod Ciferri’s Telephone is 650-346-3741

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Rod Ciferri, who was the guest on the Neil Garfield Show last week, has nailed the issue with extensive research and a highly articulate explanation of why the cutoff date and other requirements of the Trust Instrument (the Pooling and Servicing Agreement) are absolute and not subject to interpretation from the Bench. He goes back to basics — starting with the point we lawyers learn in law school in our first year. Statutes may not be construed unless there is a specific finding that the statute is ambiguous in some way. The New York statute says that any act in contravention of the express terms of the Trust instrument is void.

I would only add that none of the Trusts actually come to own the debt, loan, note or mortgage anyway. The creation of “assignments” and “powers of attorney” merely create the illusion of a transaction that never occurred.

Rod Ciferri is licensed in New York State. I strongly recommend that lawyers read the following excerpt from Rod Ciferri carefully and incorporate it into the argument and memos.

  1. New York Law Prohibits Plaintiff-In-Intervention’s Late    Acceptance Of The Loan And Deems The Same To Be Void Ab Initio

Estates, Powers & Trusts Law § 7-2.4 (“§ 7-2.4”) states that acts of a trustee in contravention of the trust agreement are void.[1] Here the act of Plaintiff-In-Intervention which is void is its late acceptance of the loan into the trust. Although Defendant is aware of cases holding such acts are merely voidable, such cases rest upon a misunderstanding of New York law.

First, § 7-2.4 was preceded by a statute of nearly identical language[2] – 1 R.S. 730, § 65. That statute was first considered by the highest court in New York, the Court of Appeals, in 1852. Powers v. Bergen (1852) 6 N.Y. 358, found a sale of certain real property held in trust under the direction that the real property would be a life estate for the beneficiary was void under that statute – despite the fact that the beneficiary did not object and that the legislature made a private statute specifically to facilitate such sale. The high court of New York found neither the ratification of the beneficiary, nor private statute of the legislature made the act of the trustees in contravention of the trust agreement anything less than void. Other cases of the New York Court of Appeals followed that literal interpretation of the statute.[3] Given that the statute under consideration by the New York Court of Appeals is identical to the current statute as to its terms that are material to the issues herein, these cases are mandatory authority on the meaning of § 7-2.4: “void” actually means void.

Finally, the California Supreme Court confirmed that the New York Court of Appeals ruled the predecessor statute to § 7-2.4 voided acts of the trustee in contravention of the trust agreement.[4] In fact, that case considered California’s own statute, former Civil Code § 870, that had identical language as New York’s former statute, except that it was limited to real estate, whereas, the New York statute applied to all estates. Significantly, the Firato Court acknowledged a trustee’s acts in contravention of a trust agreement are void, however, in consideration of another section of the Civil Code, it recognized that was not necessarily the case with regard to title to property thereby obtained by purchasers for value without notice. Subsequently, the California legislature repealed Civil Code § 870.[5] Therefore, the California Supreme Court has recognized that that the word “void” used in its own almost identical former statute means void, except in cases where the trustee conveys property to an innocent purchaser.[6]

However, should the Court determine that these cases are not mandatory authority herein because of differences between § 7-2.4 and the prior statutes, despite the dearth of New York Court of Appeals cases considering the legal effect of § 7-2.4, the intermediate appeals courts have established the rule of law in this regard that must be followed by trial courts. In the absence of an on point ruling by the New York Court of Appeals, it is the decisions of the intermediate appeals courts, the Appellate Divisions, which are to be followed by the trial courts. See, Mountain View Coach Lines, Inc. v. Storms (1984) 102 A.D.2d 663 (If only one Appellate Division has ruled on a point not ruled on by the Court of Appeals, that ruling is binding on trial courts).   The only Appellate Division that has specifically dealt with § 7-2.4 is the Second Department. In the matter of Doman (2d Dept. 2013) 110 A.D.3d 1073 (distributions from trust not authorized by the trust agreement must be returned to the trust); Pepi v. Petrella (2d Dept. 2000) 268 A.D.2d 477 (conveyance made in contravention of the trust void). Just as a trustee’s acts in contravention of the trust were adjudged void under the old statute, the Appellate Division, Second Department, has determined the same are void under § 7-2.4.

Moreover, the lower court decisions holding that the word void actually means voidable are of little authority because none of them actually found the wording of § 7-2.4 to have been ambiguous – a prerequisite to judicial construction and interpretation – whether analyzed under California or New York law.[7]

Where a statute is unambiguous, the courts must interpret its words in accordance with their ordinary meaning and not engage in statutory construction. Kimmel v. Goland (1990) 51 Cal.3d 202, 208 (To determine the intent of legislation, courts first consult the words themselves, giving them their usual and ordinary meaning); Rojo v. Kliger (1990) 52 Cal.3d 65, 73 (When statutory language is clear and unambiguous there is no need for construction, and courts should not indulge in it); PBA v. City of New York (1976) 41 NY 2d 205, 208 (“where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used.”). Clearly the courts that have determined “void” means “voidable” did not follow these elementary rules prohibiting judicial construction absent an ambiguous statute.

Also, cases that don’t cite § 7-2.4 that find unauthorized acts of a trustee are “voidable” are of dubious authority herein for not considering that statute’s effect on such acts.[8] Finally, none of these cases analyze the substantially similar statutes that existed in both New York and California, nor the cases decided by the high courts of those respective states correctly interpreting them.

Therefore, this Court should follow the sound mandatory authority of the plain meaning of § 7-2.4, the New York Court of Appeals decisions that considered § 7-2.4’s predecessor statute, the California Supreme Court’s interpretation of a substantially similar statute and the Appellate Division, Second Department cases that specifically considered § 7-2.4. Whether void or voidable, the issue is not an academic one. The legislature’s purpose in enacting § 7-2.4 was “to protect trust beneficiaries from unauthorized actions by the trustee.” Turano, Practice Commentaries, McKinney’s Consolidated Laws of New York, Book 17B, EPTL §7-2.4. That statutory purpose is particularly important in the instant case, since the certificate holder beneficiaries under the trust herein are prohibited by the Agreement from voting on or challenging such unauthorized actions except in certain sharply circumscribed circumstances.[9] In short, “void” means void.

[1] The verbatim language of § 7-2.4 is: “If the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.”

[2] “where the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void.”   See Briggs v. Davis (1859) 20 N.Y. 15, 21.

[3] See Briggs v. Davis (1859) 20 N.Y. 15 (grantees of land in trust for the payment of debts reconveyed to the grantor, reciting that the trusts had been executed. In fact, the debts had not all been paid. The debtor then mortgaged the land to one having no actual notice of the trust. It was held that the reconveyance, being in contravention of the trust, was void, and that the legal estate remained in the trustees.); Genet et al. v. Hunt et al. (1889) 113 N.Y. 158 (“The statute makes every conveyance or other act of the trustees of an express trust in lands, in contravention of the trust, absolutely void…”); Russell v. Russell (1867) 36 N.Y. 581 (Transfer in contravention of the trust agreement void, despite mutual assent to it by the trustee and beneficiary).

[4] Firato v. Tuttle (1957) 48 Cal.2d 136 (“In 1859 it was held by a divided court in Briggs v. Davis, 20 N.Y. 15 [75 Am.Dec. 363], that this statute made a wrongful reconveyance under a deed of trust absolutely void even as to an innocent purchaser.”).

[5] For the history of Civil Code § 870, see Schiavon v. Arnaudo Brothers (2000) 84 Cal.App.4th 374.

[6] Plaintiff-In-Intervention, as a party to the Agreement, had knowledge that its late acceptance of the instant loan into the trust res was unauthorized, and, consequently, cannot be deemed an innocent purchaser. In fact, Plaintiff-In-Intervention unequivocally covenants in the Agreement at Section 3.02, the following: “REMIC-Related Covenants. For as long as any 2007-AR4 REMIC shall exist, the Trustee shall act in accordance herewith to assure continuing treatment of such 2007-AR4 REMIC as a REMIC, and the Trustee shall comply with any directions of the Depositor or the Servicer to assure such continuing treatment.” RJN, Exh. A. See also, Section 11.01 of the Agreement:   “Intent of Parties. The parties intend that each 2007-AR4 REMIC shall be treated as a REMIC for federal income tax purposes and that the provisions of this Agreement should be construed in furtherance of this intent.” Id. See also, 26 U.S.C. §§ 860A–860G; see also Real Estate Investment Trusts. Securities Law Series, Vol. 29. Thomson West (2007): 6-22 (Late transfers to the trust result in forfeiting the pass through of taxation to the investors and subjects the trust to a 100% tax of the loan amount). Plaintiff-In-Intervention certainly cannot show it was without notice that its late acceptance of the instant loan was unauthorized by its Agreement.

[7] See, e.g., the odd case of a lower court (Appellate Term) that actually considered § 7-2.4 and found that a trustee could have apparent authority to bind the trust to the trustee’s unauthorized act: Feldman v. Torres (2011) 34 Misc.3d 47.

[8] People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7 (“…cases are not authority for propositions not considered therein.”).

[9] See Section 11.04 of the Agreement: “…no Certificateholders shall have any right to vote or in any manner otherwise control the operation and management of the Trust… No Certificateholder shall have any right by virtue of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon, under or with respect to this Agreement against the Depositor, the Trustee, the Servicer or any successor to any such parties…”

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