Securitization for Lawyers

For more information on foreclosure offense, expert witness consultations and foreclosure defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone.

The CONCEPT of securitization does not contemplate an increase in violations of lending laws passed by States or the Federal government. Far from it. The CONCEPT anticipated a decrease in risk, loss and liability for violations of TILA, RESPA or state deceptive lending laws. The assumption was that the strictly regulated stable managed funds (like pensions), insurers, and guarantors would ADD to the protections to investors as lenders and homeowners as borrowers. That it didn’t work that way is the elephant in the living room. It shows that the concept was not followed, the written instruments reveal a sneaky intent to undermine the concept. The practices of the industry violated everything — the lending laws, investment restrictions, and the securitization documents themselves. — Neil F Garfield, Livinglies.me

———————————–

“Securitization” is a word that provokes many emotional reactions ranging from hatred to frustration. Beliefs run the range from the idea that securitization is evil to the idea that it is irrelevant. Taking the “irrelevant” reaction first, I would say that comes from ignorance and frustration. To look at a stack of Documents, each executed with varying formalities, and each being facially valid and then call them all irrelevant is simply burying your head in the sand. On the other hand, calling securitization evil is equivalent to rejecting capitalism. So let’s look at securitization dispassionately.

First of all “securitization” merely refers to a concept that has been in operation for hundreds of years, perhaps thousands of years if you look into the details of commerce and investment. In our recent history it started with “joint stock companies” that financed sailing expeditions for goods and services. Instead of one person or one company taking all the risk that one ship might not come back, or come back with nothing, investors could spread their investment dollars by buying shares in a “joint stock company” that invested their money in multiple sailing ventures. So if some ship came in loaded with goods it would more than offset the ships that sunk, were pirated, or that lost their cargo. Diversifying risk produced more reliable profits and virtually eliminated the possibility of financial ruin because of the tragedies the befell a single cargo ship.

Every stock certificate or corporate or even government bond is the product of securitization. In our capitalist society, securitization is essential to attract investment capital and therefore growth. For investors it is a way of participating in the risk and rewards of companies run by officers and directors who present a believable vision of success. Investors can invest in one company alone, but most, thanks to capitalism and securitization, are able to invest in many companies and many government issued bonds. In all cases, each stock certificate or bond certificate is a “derivative” — i.e., it DERIVES ITS VALUE from the economic value of the company or government that issued that stock certificate or bond certificate.

In other words, securitization is a vehicle for diversification of investment. Instead of one “all or nothing” investment, the investors gets to spread the risk over multiple companies and governments. The investor can do this in one of two ways — either manage his own investments buying and selling stocks and bonds, or investing in one or more managed funds run by professional managers buying and selling stocks and bonds. Securitization of debt has all the elements of diversification and is essential to the free flow of commerce in a capitalistic economy.

Preview Questions:

  • What happens if the money from investors is NOT put in the company or given to the government?
  • What happens if the certificates are NOT delivered back to investors?
  • What happens if the company that issued the stock never existed or were not used as an investment vehicle as promised to investors?
  • What happens to “profits” that are reported by brokers who used investor money in ways never contemplated, expected or accepted by investors?
  • Who is accountable under laws governing the business of the IPO entity (i.e., the REMIC Trust in our context).
  • Who are the victims of misbehavior of intermediaries?
  • Who bears the risk of loss caused by misbehavior of intermediaries?
  • What are the legal questions and issues that arise when the joint stock company is essentially an instrument of fraud? (See Madoff, Drier etc. where the “business” was actually collecting money from lenders and investors which was used to pay prior investors the expected return).

In order to purchase a security deriving its value from mortgage loans, you could diversify by buying fractional shares of specific loans you like (a new and interesting business that is internet driven) or you could go the traditional route — buying fractional shares in multiple companies who are buying loans in bulk. The share certificates you get derive their value from the value of the IPO issuer of the shares (a REMIC Trust, usually). Like any company, the REMIC Trust derives its value from the value of its business. And the REMIC business derives its value from the quality of the loan originations and loan acquisitions. Fulfillment of the perceived value is derived from effective servicing and enforcement of the loans.

All investments in all companies and all government issued bonds or other securities are derivatives simply because they derive their value from something described on the certificate. With a stock certificate, the value is derived from a company whose name appears on the certificate. That tells you which company you invested your money. The number of shares tells you how many shares you get. The indenture to the stock certificate or bond certificate describes the voting rights, rights to  distributions of income, and rights to distribution of the company is sold or liquidated. But this assumes that the company or government entity actually exists and is actually doing business as described in the IPO prospectus and subscription agreement.

The basic element of value and legal rights in such instruments is that there must be a company doing business in the name of the company who is shown on the share certificates — i.e., there must be actual financial transactions by the named parties that produce value for shareholders in the IPO entity, and the holders of certificates must have a right to receive those benefits. The securitization of a company through an IPO that offers securities to investors offer one additional legal fiction that is universally enforced — limited liability. Limited liability refers to the fact that the investment is at risk (if the company or REMIC fails) but the investor can’t lose more than he or she invested.

Translated to securitization of debt, there must be a transaction that is an actual loan of money that is not merely presumed, but which is real. That loan, like a stock certificate, must describe the actual debtor and the actual creditor. An investor does not intentionally buy a share of loans that were purchased from people who did not make any loans or conduct any lending business in which they were the source of lending.

While there are provisions in the law that can make a promissory note payable to anyone who is holding it, there is no allowance for enforcing a non-existent loan except in the event that the purchaser is a “Holder in Due Course.” The HDC can enforce both the note and mortgage because he has satisfied both Article 3 and Article 9 of the Uniform Commercial Code. The Pooling and Servicing Agreements of REMIC Trusts require compliance with the UCC, and other state and federal laws regarding originating or acquiring residential mortgage loans.

In short, the PSA requires that the Trust become a Holder in Due Course in order for the Trustee of the Trust to accept the loan as part of the pool owned by the Trust on behalf of the Trust Beneficiaries who have received a “certificate” of fractional ownership in the Trust. Anything less than HDC status is unacceptable. And if you were the investor you would want nothing less. You would want loans that cannot be defended on the basis of violation of lending laws and practices.

The loan, as described in the origination documents, must actually exist. A stock certificate names the company that is doing business. The loan describes the debtor and creditor. Any failure to describe the the debtor or creditor with precision, results in a failure of the loan contract, and the documents emerging from such a “closing” are worthless. If you want to buy a share of IBM you don’t buy a share of Itty Bitty Machines, Inc., which was just recently incorporated with its assets consisting of a desk and a chair. The name on the certificate or other legal document is extremely important.

In loan documents, the only exception to the “value” proposition in the event of the absence of an actual loan is another legal fiction designed to promote the free flow of commerce. It is called “Holder in Due Course.” The loan IS enforceable in the absence of an actual loan between the parties on the loan documents, if a third party innocent purchases the loan documents for value in good faith and without knowledge of the borrower’s defense of failure of consideration (he didn’t get the loan from the creditor named on the note and mortgage).  This is a legislative decision made by virtually all states — if you sign papers, you are taking the risk that your promises will be enforced against you even if your counterpart breached the loan contract from the start. The risk falls on the maker of the note who can sue the loan originator for misusing his signature but cannot bring all potential defenses to enforcement by the Holder in Due Course.

Florida Example:

673.3021 Holder in due course.

(1) Subject to subsection (3) and s. 673.1061(4), the term “holder in due course” means the holder of an instrument if:

(a) The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
(b) The holder took the instrument:

1. For value;
2. In good faith;
3. Without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series;
4. Without notice that the instrument contains an unauthorized signature or has been altered;
5. Without notice of any claim to the instrument described in s. 673.3061; and
6. Without notice that any party has a defense or claim in recoupment described in s. 673.3051(1).
673.3061 Claims to an instrument.A person taking an instrument, other than a person having rights of a holder in due course, is subject to a claim of a property or possessory right in the instrument or its proceeds, including a claim to rescind a negotiation and to recover the instrument or its proceeds. A person having rights of a holder in due course takes free of the claim to the instrument.
This means that Except for HDC status, the maker of the note has a right to reclaim possession of the note or to rescind the transaction against any party who has no rights to claim it is a creditor or has rights to represent a creditor. The absence of a claim of HDC status tells a long story of fraud and intrigue.
673.3051 Defenses and claims in recoupment.

(1) Except as stated in subsection (2), the right to enforce the obligation of a party to pay an instrument is subject to:

(a) A defense of the obligor based on:

1. Infancy of the obligor to the extent it is a defense to a simple contract;
2. Duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor;
3. Fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms;
This means that if the “originator” did not loan the money and/or failed to perform underwriting tests for the viability of the loan, and gave the borrower false impressions about the viability of the loan, there is a Florida statutory right of rescission as well as a claim to reclaim the closing documents before they get into the hands of an innocent purchaser for value in good faith with no knowledge of the borrower’s defenses.

 

In the securitization of loans, the object has been to create entities with preferred tax status that are remote from the origination or purchase of the loan transactions. In other words, the REMIC Trusts are intended to be Holders in Due Course. The business of the REMIC Trust is to originate or acquire loans by payment of value, in good faith and without knowledge of the borrower’s defenses. Done correctly, appropriate market forces will apply, risks are reduced for both borrower and lenders, and benefits emerge for both sides of the single transaction between the investors who put up the money and the homeowners who received the benefit of the loan.

It is referred to as a single transaction using doctrines developed in tax law and other commercial cases. Every transaction, when you think about it, is composed of numerous actions, reactions and documents. If we treated each part as a separate transaction with no relationship to the other transactions there would be no connection between even the original lender and the borrower, much less where multiple assignments were involved. In simple terms, the single transaction doctrine basically asks one essential question — if it wasn’t for the investors putting up the money (directly or through an entity that issued an IPO) would the transaction have occurred? And the corollary is but for the borrower, would the investors have been putting up that money?  The answer is obvious in connection with mortgage loans. No business would have been conducted but for the investors advancing money and the homeowners taking it.

So neither “derivative” nor “securitization” is a dirty word. Nor is it some nefarious scheme from people from the dark side — in theory. Every REMIC Trust is the issuer in an initial public offering known as an “IPO” in investment circles. A company can do an IPO on its own where it takes the money and issues the shares or it can go through a broker who solicits investors, takes the money, delivers the money to the REMIC Trust and then delivers the Trust certificates to the investors.

Done properly, there are great benefits to everyone involved — lenders, borrowers, brokers, mortgage brokers, etc. And if “securitization” of mortgage debt had been done as described above, there would not have been a flood of money that increased prices of real property to more than twice the value of the land and buildings. Securitization of debt is meant to provide greater liquidity and lower risk to lenders based upon appropriate underwriting of each loan. Much of the investment came from stable managed funds which are strictly regulated on the risks they are allowed in managing the funds of pensioners, retirement accounts, etc.

By reducing the risk, the cost of the loans could be reduced to borrowers and the profits in creating loans would be higher. If that was what had been written in the securitization plan written by the major brokers on Wall Street, the mortgage crisis could not have happened. And if the actual practices on Wall Street had conformed at least to what they had written, the impact would have been vastly reduced. Instead, in most cases, securitization was used as the sizzle on a steak that did not exist. Investors advanced money, rating companies offered Triple AAA ratings, insurers offered insurance, guarantors guarantees loans and shares in REMIC trusts that had no possibility of achieving any value.

Today’s article was about the way the IPO securitization of residential loans was conceived and should have worked. Tomorrow we will look at the way the REMIC IPO was actually written and how the concept of securitization necessarily included layers of different companies.

33 Responses

  1. Table funded loan constitutes a nonsensical argument. DID the borrower get money or not? If yes, then the manner of providing the money does NOT CONCERN THE BORROWER. If no. IT STILL DOES NOT CONCERN THE BORROWER. Stick to things that matter, that actually injure the borrower. Neil’s arguments generally grasp at straws or function as red herrings – they generally have ZERO RELEVANCE to whether the borrower got injured or whether the borrower owes the debt without offsets. I pointed to one comment he made in the subject article that seemed to make sense to me, so I don’t disagree with every word he writes.

  2. Dwight, arguments like “lack of consideration, or lack of funding or money from the named “lender” at the closing,” are so ludicrous I normally wouldn’t even address such comments, but you seem to really want to get to the bottom of things, so here goes:

    Consideration is the obligation each person makes to the other involved in a contract. Both parties are required to place some consideration for the contract to be enforceable. For a mortgage, the money the lender loans the borrower is the consideration. The borrower promises to repay the loan, with the home securing the debt as collateral.

    Lack of funding or money from the named “lender” at the closing is known as the “vapor money theory,” which courts have ruled as frivolous for the last thirty years.

    Mosely-Sutton v. Macfadyen (D. Md., 2010) (“Plaintiff seems to assert that the loan at issue is unenforceable because ‘no such required cash was tendered,’ presumably at the closing of the loan.To the extent Plaintiff asserts a vapor money claim, this Court has previously noted that this ‘theory has been consistently rejected by federal courts as frivolous and insufficient to withstand a motion to dismiss.” Accordingly, all claims based upon any variation of the vapor money theory must be dismissed.”) (internal citations omitted). Demmler, 2006 WL 640499 at *3-4, 2006 U.S. Dist. LEXIS 9409 at *11) (“The vapor money theory . . . and `similar arguments have been rejected by federal courts across the country.'”); Barber v. Countrywide Home Loans, Inc., 2009 US. Dist. LEXIS 123939, at *10-11 (W.D.N.C. Oct. 8, 2009) (agreeing with other courts that claims based on the vapor money and unlawful money theories are “utterly frivolous” and “patently ludicrous”) (internal citations omitted).

  3. Rock .. I took NG’s statement to be more precisely directed at the 3 elements that constitute a legal, valid contract. When he says that if you prove one of those elements is missing (consideration?) then you are proving that the contract is invalid and unenforceable. Which boils down to the money trail which he contends the bank must prove as a “Holder” in order to meet the threshold of enforcing the mortgage. They should not be allowed any “presumptions” that the original loan and contract was valid. As mere holders they need to prove up their case once the defendants challenge the contract with affirmative defenses, which include lack of consideration, or lack of funding or money from the named “lender” at the closing.
    Now I understand that you are saying there are other ways to skin a cat by attacking the mortgage .. “you need to argue the contract was breached, unconscionable, Illegal, mistakes, undue Influence, hardship,“unclean hands” errors that would void it, tortuous conduct, set-offs, etc., etc.” … can you give us a simple example of eaqch of those so we can better understand what they mean?

    Thank you

  4. Dwight, Mr. Garfield is making the opposite argument, he stated: “you need to prove that in your case the elements of contract are absent .”

    Wrong, you need to argue the contract was breached, unconscionable, Illegal, mistakes, undue Influence, hardship,“unclean hands” errors that would void it, tortuous conduct, set-offs, etc., etc.

    BTW, assignment, securitization etc., are loser arguments, only promoted by scammers and legal illiterates promote.

    Maynard v. Wells Fargo Bank, N.A. (S.D. Cal., 2013) (“Plaintiffs also allege that they conducted a Securitization Audit of Plaintiffs’ chain of title and Wachovia’s PSA, and as a result, determined that Plaintiffs’ Note and DOT were not properly conveyed into the Wells Fargo Trust on or before July 29, 2004, the closing date listed in the Trust Agreement. (Id. at ¶ 34.)… To the extent Plaintiffs challenge the validity of the securitization of the Loan because Wells Fargo and U.S. Bank failed to comply with the terms of the PSA or the Trust Agreement, Plaintiffs are not investors of the Loan, nor are Plaintiffs parties to the PSA or Trust Agreement. Therefore, as many courts have already held, Plaintiffs lack standing to challenge the validity of the securitization of the Loan…Furthermore, although Plaintiffs contend they have standing to challenge the validity of the Assignment because they were parties to the DOT with the original lender (Wells Fargo), this argument also fails. (Doc. No. 49 at 11-12.).

    Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 511-13, 156 Cal. Rptr. 3d 912 (Cal. Ct. App. 2013) (“[E]ven if any subsequent transfers of the promissory note were invalid, [the borrower] is not the victim of such invalid transfers because her obligations under the note remained unchanged.”). As stated above, these exact arguments have been dismissed by countless other courts in this circuit. Accordingly, Plaintiffs’ contentions that the Assignment is void due to a failure in the securitization process fails.”).

  5. Here is a quote from Neil G. – “we have been looking at the CONCEPT of Securitization and determined there is nothing theoretically wrong with it. That alone accounts for tens of thousands of defenses” raised in foreclosure actions across the country where borrowers raised the “defense” securitization. No such thing exists. Foreclosure defense is contract defense — i.e., you need to prove that in your case the elements of contract are absent and THAT is why the note or the mortgage cannot be enforced. Keep in mind that it is entirely possible to prove that the mortgage is unenforceable even if the note remains enforceable. But as we have said in a hundred different ways, it does not appear to me that in most cases, the loan contract ever existed, or that the acquisition contract in which the loan was being “purchased” ever occurred.

  6. @ Bob Hurt … I’m trying to understand the major differences between your arguments and those of Neil G’s, I need a little bit more clarity if you can bear with me.
    You posted earlier : “I have argued that the only legal way to fight the foreclosure lies in proving that the debt lacked validity from the beginning, that the lender or associates of the lender injured the borrower at the inception of the loan. Examples include (but are not limed to) overvaluation of the mortgaged property, lying on the loan application, lying about the terms of the loan, excessive origination fees, bait and switch tactics, or any of an array of regulatory and legal errors.”
    When you say “the debt lacked validity from the beginning and it injured the borrower at the inception of the loan” .. well that sounds similar to what Neil G. is also saying. He says a “Table Funded Loan” is a violation of lending laws. When the pretender lender is acting as a Straw Man and is not the true source of the loan, but part of a Ponzi Scheme which begins by tricking the borrower into signing a contract without ever disclosing to the borrower the truth of the “Assumption & Assignment Agreement” that is already in motion and at play. The Mortgage contract is a smoke and mirrors ball of confusion, and it is deliberately written in a misleading way in order to keep a veil of secrecy over what is taking place behind the scenes and hidden from the borrower. An example is the MERS as nominee inclusion in the mortgage contract, where it acts as a Wizard of Oz type of magician that can make things disappear , and then re-appear somewhere else.
    Another violation of the mortgage contract would appear to be the use of LPS lender processing services employees to fabricate docs that are needed for foreclosure .. i.e., the Assignment of Mortgage , where a few minimum wage workers sign a fabricated document and even resort to forgery by scribbling a signature in the notary line, and then the banks attorney submits it as an exhibit as part of the certifications.
    Later when the borrower attempts to question it’s validity, the Judge and the Plaintiff cry “foul” and claim you have no standing to object to a fake Assignment of Mortgage because you are a third party to it. But the actual Mortgage contract you signed at inception and origination has a clause called “The Borrower Covenants”, where it grants the right to the borrower to defend generally against any outside attacks, which of course should include a right to defend against a VOID assignment of mortgage that fits the legal description of a fraud. An Assignment of Mortgage which has evidence of fraud is a VOID. A legal nullity. So I’m having a hard time following the logic that we as borrowers are wasting our time fighting these battles in court and raising these issues as affirmative defenses.

    When you say “Attack the Mortgage” .. cannot that mean the same thing as Neil is saying? Hasn’t Neil G. been arguing that the origination lacks validity from it’s inception too?

    I want to understand all of the strategies and attack with as much ammunition as possible. Your strategy of attacking the mortgage sounds like it predominantly relies on reviewing the documents and looking for clear violations such as : lying on the loan application, over-valuation of the property, lying about the terms, excessive fees, etc .. not sure what you mean by bait & switch tactics … but I am interested in understanding all avenues that might lead to a resolution that results in me keeping my home. Right now it seems as though we all agree that the main focus of our attack should be on the origination and whether is constitutes a legal and valid financial transaction under the law.

  7. Well, Mr. Rock, you obviously did not just fall off of a turnip truck. SOMEONE taught you the law early enough for you not to get snakebit by by the securitization viper.

    I too would prefer a multimillion dollar award within what, say three years? Yeah, I’d like that a lot better than dragging out the foreclosure with failing arguments like show me the note, you securitized my loan, money is just vapor, you didn’t lend me anything, and other foreclosure defenses, and then LOSING THE HOUSE.

    Oh yeah. Give me millions any time so I can go buy a better house. I prefer that to keeping my old house and owing a mountain of debt I cannot pay, and or to losing the house because of stupid, short-lived, ineffective foreclosure defense arguments.

    After all, if I breached the note and didn’t pay timely, I deserve to lose the house. Only one thing changes that: the lender or lender’s agents or associates cheated me and made the loan agreement void or voidable.

    You have preached to the choir and we sing the same song.

  8. One more point. SOmeone please show me any example where any maker has taken back a mortgage promissory note for failure to receive money. Note Neil’s discussion of the Holder in Due Course issue. He seems to want to assert that the maker received no money at closing, as though a check paying off another note or providing cash or a line of credit does not constitute money. Show me a court opinion supporting that legal theory.

    Note also that he claims the borrower can rescind the loan under the UCC if the note likes validity.

    Hey. I like that. I like it a LOT. Now Neil is talking MORTGAGE ATTACK, my kind of language.

  9. Mr. Hurt, assuming for a moment that there have been “wins” arguing securitization, chain of title, assignment, etc, which in reality there have not been any, but even still, they couldn’t compare to all of the homeowners that have received multi-million dollar awards and free title to their property attacking the mortgage transaction. That alone, if I were a homeowner, that would be the road I would travel, but homeowners get detoured by the scammers & legal illiterates that spread their garbage & misleading disinformation as evidenced by what has transpired on this blog.

  10. Bob G and So Cal 7, and to this group generally:

    I NEVER sign on anywhere with a pseudonym. I am and shall remain quite public. I have nothing to hide. So, you two, particularly Bob G. who has defamed me by calling me a shill, ought to come clean and identify yourself. I remind everyone that politeness goes a long way in a public debate, particularly when readers hate you for lying to them as you do, Bob G. Your politeness could become your only redeeming quality. Take note that your insulting comments 150 years ago would have won you a duel with pistols and a bullet in the chest.

    I have written numerous times about Neil Garfield’s greatest sin: he has admitted leading attorneys who “get it” to cheat their clients by dragging out the inevitable foreclosure while bilking the clients our of $500 to $1000 a month for upwards of 5 or 6 years “for as long as we can keep you in the house.” And in the end, the client loses the house. The lawyer knows this. The lawyer has breached a duty of care which requires, in a contract dispute, an examination of the contract and surrounding situation to determine whether the contract lacks validity or the lender or associates have injured or cheated the borrower. This breach of duty which proximately causes loss of the house or other loss to the borrower constitutes legal malpractice.

    Add to that the fact that Neil Garfield, nice man though he seems, has not ever won a case that I know of. And if he ever won so much as a dilatory dismissal, he actually lost because he only protracted the inevitable loss of the house while charging big money to the client for the privilege.

    Neil seems to believe securitization related arguments provide a proper path to saving the house from foreclosure. He neglects to confess broadly that assignment or securitization of the note brings no benefit or detriment to the borrower, and that the borrower never became a party to either the PSA or the assignment. Thus, the borrower has no standing to attack, defend, or enforce the assignment or securitization in court. And so the courts across America have ruled, aside from a few pathetic, pitiful anomalies like Glaski and Erobobo.

    In fact, the UCC, adopted in all states, reveals how the holder, not merely the owner, or the holder’s agent, may enforce an indorsed-in-blank note even if the holder found or wrongfully possesses it. And this remains true even if the blank-holder is the trustee and the note entered the trust in New York under New York law after the closing date in the PSA, and even though NY law voids such an assignment.

    In Florida we have a similar dichotomy. A Florida evidence code statute prohibits admission into evidence of a copy of a negotiable instrument. But the UCC allows enforcement of a lost, stolen, or destroyed note. How can one enforce a note that has not been admitted into evidence? Well Florida has another statute that allows one in a separate proceeding to reestablish a lost or destroyed note. By reestablishing it, one may get it admitted into evidence. But Florida courts so far don’t require the reestablishment. They simply ignore the evidence code, apparently.

    Our main dispute has to do with whether the holder or agent has the right to collect on the debt. Of this no real dispute can exist. The US and Florida constitutions require that the state legislature shall not enact a law that impairs the obligation of contracts, and that persons shall have access to the courts for redress of injury. So a lender/holder has a right to get his money back, or in the case of a mortgage, to force a sale of the house in order to discharge the debt, IF the borrower defaults.

    Neil Garfield and his incubus/succubus acolytes seem determined to find loopholes that will allow mortgagors to keep the house in spite of the foregoing requirements. I know that NONE of you would appreciate that if YOU had loaned money to a borrower for a house on a mortgage or deed of trust, and the borrower refused to pay you back.

    I have argued that the only legal way to fight the foreclosure lies in proving that the debt lacked validity from the beginning, that the lender or associates of the lender injured the borrower at the inception of the loan. Examples include (but are not limed to) overvaluation of the mortgaged property, lying on the loan application, lying about the terms of the loan, excessive origination fees, bait and switch tactics, or any of an array of regulatory and legal errors.

    Of course, borrowers bear much of the culpability for this by acting like inveterate dummies, such as by refusing to read the loan documents and cross out or add provisions as necessary to protect themselves, refusing to understand the regulatory requirements and verify that the various parties complied, refusing to double-check the appraiser’s assertions for validity, failing to double-check the arithmetic and loan terms and legal description, or outright lying on the loan application, and taking out a loan they know they cannot repay.

    Nevertheless, the ONLY way to beat the banks in a mortgage issue lies in challenging the validity of the contract by attacking those who injured or cheated the borrower. Courts have a duty to give redress to injured parties.

    Also, when evaluating the behaviors of courts in foreclosure issues, one should consider the differences between judicial and non-judicial state foreclosure and litigation processes.

    And please allow me to make one more point. Neil Garfield, as nice as he seems, has led many mortgage victims astray. He is a foreclosure “Pretender Defender.” He doesn’t really want to win anything for a mortgagor. He WISHES the courts in foreclosure issues cared about securitzation issues, but they DON’T, aside from a few anomalous, deprecated opinions like Glaski and Erobobo.. ALL THE LAWYERS WHO FOLLOW HIS SUGGESTIONS LOSE in the end, and the bank causes the sale of the house to pay the debt, or takes it over.

    Get this straight: dismissal of a foreclosure complaint without prejudice does not constitute a win. It is a loss because the borrower had to pay the lawyer to litigate it, and the plaintiff always reorganizes and refiles or appeals, and then wins the foreclosure dispute. The borrower either renegotiates (onerous loan mod) or loses the house. Statistically, ALWAYS.

    So you can argue your insipid assignment and securitization issues here all day long. But if you take them to court and rely on them to save the house, you are a damned fool (because you have read and ignored adequate warnings), and YOU WILL LOSE THE HOUSE.

    If you think the foreclosure statute of limitations will save you, you err there, too. It won’t the 5 year limitation applies only to payments more than 5 years overdue. The holder can foreclose and take the house for all other payments overdue. And that remains true for the life of the loan.

    And even if you managed to get a foreclosure dismissal with prejudice, you still lose. You still have the same junky house in need of repairs after you have neglected it for years. I know you haven’t improved and maintained it if you knew you would lose or ought to lose it in foreclosure. You still owe a monumental debt on a house worth far less than you owe. You call that winning?

    But IF you find out how the lender or associates injured you at the inception of the loan, and you discover salient causes of action as I suggested above, you might negotiate a cramdown of your loan balance, the kind of loan mod that makes sense for you. YOu might sue and win compensatory and punative damages in the millions, enough to buy several houses. You might end up with the house free and clear and the debt wiped clean, and your credit rating restored.

    ALL OF THAT becomes possible when you negotiate from a position of strength and POWER. And you get such power when you can prove the lender, appraiser, mortgage broker, lender, title company, realtor, lawyer, or other greedy operative HURT YOU in the mortgage loan process, and if you have the necessary legal skill to litigate the contract breach or tort claim or negotiate a settlement.

    You NEVER get that kind of benefit when you fight the foreclosure.

    All of the above explains why I preach MORTGAGE ATTACK. You can see a full explanation, including a lot of case law, including cases of people from East to West winning millions in damages, just because the understood and executed an excellent, effective MORTGAGE ATTACK, Where do you see it? mortgageattack dot com. And you can call me at 727 669 5511 for a FREE consultation regarding your case. I have never charged anybody any money for helping in mortgage related issues in one-on-one conversations.

    AND, I’ll show you how to get your mortgage comprehensively examined by a competent professional. I’m not talking about a scam securitization audit (they are all scams) or a junk loan audit that only reveals TILA and RESPA violations. I’m talking about a full-blown stem to stern examination and analysis of all your case documents from the beginning till present day, including the mortgage, appraisal, loan application, closing docs, real estate contract, loan mod, forbearance, bankruptcy, foreclosure lawsuit, quiet title action, other junk audits, EVERYTHING. And I’m talking about presenting you with a crystal clear demonstration of the PROOF of the causes of action from the standpoint of engineering a defeat of your opponent in negotiated settlement or court.

    I’ll introduce you to the best mortgage examiner on the planet, if you wish, at no charge, absolutely free.

    You see, I help people, but unlike Neil Garfield and many who troll on this LivingLies blog for clients, I don’t charge money for helping people. I devote my time and energies to the cause of educating people in what works and what doesn’t and in showing them how to put what works into action for themselves.

    If you want to lose your home in a foreclosure dispute, call Neil or Bob- G. or So Cal 7 or some other myth mongering bozo wisecracking under a pseudonym. They will, apparently, gladly play the Pied Piper as they get you drunk and delirious on their failing legal theories and run you off the cliff of foreclosure.

    Or if you want a fighting chance to save your home and win compensation, call me. It won’t cost a penny.727 669 5511
    Check out the articles at http://lixe.org. I don’t have anything for sale. At all.

  11. Bob Hurt Rock…

    From your link:

    “U.S. State Cases: Unreported decisions from U.S. state courts can often be found on Westlaw or Lexis. Unreported state cases may also have appeared in a local legal newspaper, and they are generally included in case law CD-ROMs covering states where unreported opinions are considered persuasive. In some states, unreported decisions are available through the court’s online docket system. (For more information on these materials, see the entries for the individual state.) ”

    Unpublished decisions/opinions and unreported decisions/opinions are equivalent for FEDERAL CASES but not State cases. Do you see anywhere in the above text re State case reporting the word “Unpublished?” You do not. The distinction is made at the Federal level. Not applicable to NY. In any event, the Erobobo trial case was published/reported contrary to your dumbass assertions.

    By the way, still waiting for your critique of the Erobobo Amicus Brief. Did I miss it?

  12. Once again Bob G you can’t get it right. You said: “There is a distinction between unreported and unpublished.”

    “Unreported decisions are judicial opinions that have not been published in any official or near-official case reporter. They are also called “unpublished decisions,” “unreported opinions” and “unpublished opinions.” http://law.lexisnexis.com/infopro/zimmermans/disp.aspx?z=2085

    You really should learn some law before posting anymore comments, you continue to embarrass yourself.

  13. Gene, I’m glad to see there really are others on this blog that know law & how things work in the REAL world, I was beginning to wonder.

    I’m sure you’re aware though, trying to have an educated discussion with these scammers & legal illiterates is basically a waste of time.

  14. Ian, Mr. Levitan gave an opinion, which has no relevance whatsoever; the gospel comes from Ct. decisions, which all hold these arguments to be frivolous. Tran v. Bank of N.Y. (S.D.N.Y., 2014) (“courts considering EPTL § 7-2.4 have held that “even if it is true that the Notes were transferred to the trust in violation of the trust’s terms [after the closing date of the trust], that transaction could be ratified by the beneficiaries of the trust and is therefore merely voidable.”).

    Moreover, the ridiculous comments made by Bob G that there have been all these wins that settled.

    Think about it, every Ct. in this country has ruled against these arguments; why would a bank be willing to settle based on arguments where the courts ruled against the homeowner? Like I tell my five kids, if it doesn’t make sense its nonsense.

    Until homeowners start attacking the mortgage transaction itself, and stop listening to these attorneys ripping them off by just using stall arguments to make themselves rich, they will continue to lose their homes. “Those who have followed my advice are currently making millions of dollars. These are the same lawyers were barely making $50,000.00 a year before they started with using my suggestions.” — Neil Garfield

  15. As someone very familiar with CA cases, I must weigh in on this case.

    1. Rock is correct in what he writes. CA Appeals Court in every district has tossed out Glaski at every point. Not one Appeals Court has found any relevance to it.

    2. Out of state cases are irrelevant when Jurisdiction Case law exists. And unpublished cases have no relevance even if in the Jurisdiction. And sorry, just because a case is posted on the Internet does not mean it is published in Ca.

    3. The recent Alvarez v B of A 3rd District Court of Appeals does a very good job of encapsulating the different Appeals cases which find against Glaski. It should be required reading for all here to understand CA findings.

    4. 2932.5 does not require an assignment of the Deed of Trust to foreclose in CA. Only mortgages must be assigned and CA does not use mortgages, just Deeds of Trust.

    5. Show me the Note has failed in every turn in CA.

    6. Contrary to what NG says, securitization of the loans was not unlawful. He presents false arguments to push a point of view that is invalid. If the arguments were true, then ask yourself this. “Why are the firms like PIMCO, Blackrock, CALPERS and other entities not filing suit claiming unlawful securitizations? That would be a much easier case to prove.

    (Please don’t tell me that the attorneys for those firms are not smart enough to understand what NG and you understand. That is an “Obama” argument and is just absurd.)

  16. Rock/Hurt:

    Are you some sort of a village idiot? Here’s what the court said in the case that you cited:

    “The second issue which warrants comment is the practice of citing to this court unreported decisions issued by Judges of coordinate jurisdiction. Such decisions, although entitled to respectful consideration, are not binding precedent upon this court especially in an area, such as discovery, where the trial court is vested with broad discretion (Nitz v Prudential-Bache Sec., 102 AD2d 914).”

    There is a distinction between unreported and unpublished. Go learn it. But more importantly, the court criticized in dicta, not in a holding, that citations to unreported decisions issued by judges of coordinate jurisdiction are not binding “precedent” on a trial court of similar coordinate jurisdiction. Duhhh !

    Bob, everybody here knows that you are a fool. I’m surprised that the nurses let you out for this long without some sort of formal supervision.

  17. Bob G, I don’t know who Bob Hurt is, but if he is saying these arguments are worthless, you’d better listen and stop misleading homeowners.

    BTW, you’re wrong again, unpublished cases in NY have NO precedential value Eaton v. Chahal, 146 Misc.2d 977, 553 N.Y.S.2d 642 (1990).

  18. Good points Rock, but since, as Adam Levitin says, ” not only were the Trusts(pools) not backed by mortgages, it appears as though they (the trusts/pools) were backed by nothing at all.” And he then took to calling them “nonmortgage backed securities”. In all his Senate subcommittee testimony.
    So why does a lender/ nonbank/ whatever have standing due to the PSA for a trust which, under NY Trust law, has no corpus?

  19. Bob Hurt…please stop with all your B.S. and case cites. If the CA Supreme Court didn’t want to adjudicate this in the appellant’s favor, it is unlikely that they would have wasted their time granting an appeal to someone “who has been smoked in every court.”

    And Erobobo is published. See 39 Misc. 3d 1220. But that is irrelevant, because all NY case decisions appearing on the internet are deemed published. Call the NY State Reporter’s office in Albany to verify. Book publishing is being limited due to space considerations. And unlike California, a truly unpublished NY decision is citable.

    Again, you can’t seem to address and controvert the substantive material allegations found in the Erobobo amicus brief.

    Why is that Bob?

  20. Bob G, the Kool-Aid you drank has obviously turned your brain to mush. Anyone who would think that a Ca. Ct would follow a NY unpublished case (Erobobo) or an amicus brief to make their decision to grant cert, clearly has no clue. The Ca. Supreme Ct. just wants to put an end to the ridiculous argument advanced by Yvanova.

    BTW, the Yvanovas have been smoked in every Ct. they’ve been in including the Bankruptcy Ct. that cited Ca. case law, and laughed at Erobobo.

    HOMEOWNERS LOSE ARGUING PSA/STANDING

    In re Correia, 452 B.R. 319, 324-25 (B.A.P. 1st Cir. 2011) (finding debtors lacked standing to challenge validity of mortgage assignment, based upon alleged noncompliance with pooling and servicing agreement); In re Smoak,— B.R. —, 2011 WL 4502596, *5-6 (Bankr. S.D. Ohio 2011) (holding debtors under securitized notes lacked standing to raise violations of PSA);In re Almeida, 417 B.R. 140, 149 n. 4 (Bankr. D. Mass. 2009) (noting holder of second mortgage on property was “not a third party beneficiary of the PSA, and, ironically, he would appear to lack standing to object to any breaches of the terms of the PSA. . . . [Instead] the investors who bought securities based upon the pooled mortgages would be the parties with standing to object to any defects in those mortgages resulting from any failure to abide by the express provisions of the PSA.”); Livonia Property Holdings, LLC v. 12840-12976 Farmington Road Holdings, LLC, 717 F. Supp. 2d 724, 748 (E.D. Mich. 2010), aff’d, 399 Fed. Appx. 97 (6th Cir.2010) (same); Anderson v. Countrywide Home Loans, 2011 WL 1627945, *4 (D. Minn. 2011) (rejecting argument that assignment to a securitization trust was invalid because the PSA provided that the trust ceased accepting mortgages several years before the contested assignment from MERS because “compliance with the chain of assignment mandated by a PSA was not relevant to the validity of the assignee’s interest.”) (citing Peterson-Price v. U.S. Bank Nat’l Ass’n, 2010 WL 1782188, *10 (D. Minn. 2010)); Greene v. Home Loan Serv., Inc., 2010 WL 3749243, *4 (D. Minn. 2010) (“Plaintiffs are not a party to the [PSA] and therefore have no standing to challenge any purported breach of the rights and obligations of that agreement.”); Long v. One West Bank, 2011 WL 3796887, *4 (N.D. Ill. 2011) (rejecting argument that assignment executed after trust was closed in violation of the PSA rendered transaction invalid, reasoning that non-parties to the PSA lacked standing to challenge the assignment and “it is irrelevant to the validity of the assignment whether or not it complied with the PSA”); Juarez v. U.S. Bank Nat’l Ass’n, 2011 WL 5330465, *4 (D. Mass. 2011) (reasoning that plaintiff “does not have a legally protected interest in the assignment of the mortgage to bring an action arising under the PSA”); Cooper v. Bank of New York Mellon, 2011 WL 3705058, *17 (D. Haw. 2011) (dismissing breach of contract count brought by delinquent mortgagors for breach of PSA, reasoning that mortgagors were not third-party beneficiaries of PSA and thus had no standing to enforce its terms); Abubo v. Bank of N.Y. Mellon, 2011 WL 6011787, *7-9 (D. Haw. 2011) (rejecting argument that PSA violation could form basis for relief, noting that this “argument has been rejected in recent decisions by many courts”); Bascos v. Fed. Home Loan Mortg. Corp., 2011 WL 3157063, *6 (C.D. Cal. 2011) (“To the extent Plaintiff challenges the securitization of his loan because Freddie Mac failed to comply with the terms of its securitization agreement, Plaintiff has no standing to challenge the validity of the securitization of the loan as he is not an investor of the loan trust.”).; In Re Walker, 466 B.R. 271, 285 nn. 28-29 (Bankr. E.D. Pa. 2012) (collecting cases and noting that “[A] judicial consensus has developed holding that a borrower lacks standing to (1) challenge the validity of a mortgage securitization or (2) request a judicial determination that a loan assignment is invalid due to noncompliance with a pooling and servicing agreement, when the borrower is neither a party to nor a third party beneficiary of the securitization agreement.”).
    Other district courts have also held that borrowers do not have standing to challenge breach of securitization agreements. See Armeni v. America’s Wholesale Lender, 2012 WL 253967 at *2 (C.D. Cal. Jan. 25, 2012)(same); Junger v. Bank of Am., N.A., 2012 WL 603262 (C.D. Cal. Feb. 24, 2012)(same);) Greene v. Home Loan Servs. Inc., 2010 WL 3749243, *4 (D. Minn. Sept. 21, 2010) (“Plaintiffs do not have standing to bring their challenge regarding the securitization of the mortgage” because they were “not a party to the Pooling and Servicing Agreement.”). Kain V. Bank Of New York Mellon (D.S.C. 3-18-2013) (the third-party debtor who is not a beneficiary to the pooling and serving agreement lacks standing to challenge holder’s rights to enforce the negotiable instrument due to an alleged invalidity in or noncompliance with the pooling and serving agreement): Metcalf V. Deutsche Bank National Trust Company (N.D.Tex. 6-26-2012) (Courts in this circuit have repeatedly held that borrowers do not have standing to challenge the assignments of their mortgages because they are not parties to those assignments…Plaintiffs do have standing, however, to challenge defendants’ authority to foreclose on the ground that foreclosure did not comply with the terms of the deed of trust); Almutarreb v. Bank of New York Trust Co., N.A., 2012 WL 4371410, *2 (N.D. Cal. Sept. 24, 2012) (“holding that “because Plaintiffs were not parties to the PSA, they lack standing to challenge the validity of the securitization process, including whether the loan transfer occurred outside of the temporal bounds prescribed by the PSA.”); Lane v. Vitek Real Estate Industries Group, 713 F.Supp.2d 1092, (E.D.Cal. 2010) (“The argument that parties lose interest in a loan when it is assigned to a trust pool has also been rejected by numerous district courts.”); Sami v. Wells Fargo Bank, 2012 WL 967051, at *5-6 (N.D. Cal. 2012) (rejecting claim “that Wells Fargo failed to transfer or assign the note or Deed of Trust to the Securitized Trust by the ‘closing date,’ and that therefore, ‘under the PSA, any alleged assignment beyond the specified closing date’ is void” because the plaintiff lacked standing); White v. IndyMac Bank, FSB, No. 09-00571, 2012 WL 966638, at *7-8 (D. Haw. Mar.20, 2012) (recognizing a servicer can foreclose on behalf of the beneficial owner of the loan); Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1042 (9th Cir. 2011) (“None of their allegations indicate that the plaintiffs were misinformed about MERS’s role as a beneficiary, or the possibility that their loans would be resold and tracked through the MERS system …. By signing the deeds of trust, the plaintiffs agreed to the terms and were on notice of the contents.”); In re Weisband, 427 B.R. 13, 22 (Bankr. D. Ariz. 2010) (“Arizona’s deed of trust statute does not require a beneficiary of a deed of trust to produce the underlying note (or its chain of assignment) in order to conduct a Trustee’s Sale.”); U.S. Bank, N.A. v. Knight, 90 So. 3d 824 (Fla. 4th DCA 2012) (“to have standing, an owner or holder of a note, indorsed in blank, need only show that he possessed the note at the institution of a foreclosure suit; the mortgage necessarily and equitable follows the note.”); WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004), (“a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt. . . .” Id.); Wolf v. Fed. Nat’l Mortg. Ass’n (4th Cir. 2013) Wolf lacks standing to attack the validity of the assignment. Furthermore, the assignment does not affect Wolf’s rights or duties at all. Wolf still has the obligation under the note to make payments. In fact, the only thing the assignment affects is to whom Wolf makes the payments. Thus, she has no interest in the assignment from MERS to BAC. Accordingly, she has no standing to challenge it); Rhodes V. JPMorgan Chase Bank (S.D.Fla. 6-28-2012) (a failure by Defendant to record its assignment is “applicable only to and enforceable by competing creditors or subsequent bona fide purchasers of the mortgagee, not by the mortgagor.” Tapia V. U.S. Bank, N.A. 718 F. Supp.2d 689, 697-98 (E.D.Va. 6-22-2010) (‘Plaintiffs argue that Defendants could not demonstrate standing to institute the foreclosure because they could not prove Article III injury. The Court rejects Plaintiffs’ standing argument to the extent that Plaintiffs use the term “standing” to refer to the requirement that a secured party first prove in court its right to initiate a foreclosure before the procedure commences. The fundamental flaw in Plaintiffs’ allegation is that Virginia is a non-judicial foreclosure state…a non-judicial foreclosure, does not require an interested party to prove “standing” in a court of law before initiating the foreclosure process…The Court therefore rejects Plaintiffs’ “standing” argument) (internal citations omitted); Indymac Bank, FSB V. Decastro, NJ: Appellate Div. 2013 (“we now have made clear that lack of standing is not a meritorious defense to a foreclosure complaint. Russo, supra, 429 N.J. Super. at 101 (holding that “standing is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not `void’ within the meaning of Rule 4:50-1(d)”); Kan v. OneWest Bank, FSB, 823 F. Supp. 2d 464, 470 (W.D. Tex. 2011) (dismissing suit for failure to state a claim where one of the arguments was that the mortgage documents were robosigned and therefore somehow invalid); Tuille v. Am. Home Mortg. Servs., Inc., 483 F. App’x 132, 135 (6th Cir. 2012) (internal citations omitted) (“any defect in the written assignment of the mortgage would make no difference where both parties to the assignment ratified the assignment by their subsequent conduct in honoring its terms, and that [the plaintiff], as stranger to the assignment, lacked standing to challenge its validity.”); Benham v. Aurora Loan Services, No. C-09-2059 SC, 2009 WL 2880232, at *3 (N.D. Cal. Sept. 1, 2009) (“Other courts in this district have summarily rejected the argument that companies like MERS lose their power of sale pursuant to the deed of trust when the original promissory note is assigned to a trust pool.”); Van Hauen v. Wells Fargo Bank, N.A., 2012 WL 4162138 (E.D. Tex. Aug. 24, 2012), report and recommendation adopted, 2012 WL 4322518 (E.D. Tex. Sept. 20, 2012) (“Courts in Texas have repeatedly recognized that Texas law allows either a mortgagee or a mortgage servicer to administer a deed of trust foreclosure without production of the original note.”) ; Soberanis v. Mortgage Elec. Registration Sys., Inc., 13-CV-1296-H KSC, 2013 WL 4046458, at *4 (S.D. Cal. Aug. 8, 2013) (“As unrelated third parties to the allegedly failed securitization and any other alleged transfers of the beneficial interest under the subject loan and deed of trust, Plaintiffs lack standing to enforce any agreements related to such transactions.”); Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 511-13, 156 Cal. Rptr. 3d 912 (Cal. Ct. App. 2013) (“[E]ven if any subsequent transfers of the promissory note were invalid, [the borrower] is not the victim of such invalid transfers because her obligations under the note remained unchanged.”); Neal v. Bank of America, N.A., No. CV 12-08104-PCT-FJM, 2012 WL 3638762, at *4 (D. Ariz. Aug. 24, 2012) (rejecting Plaintiff’s argument that the assignment of the deed of trust and the substitution of trustee are forgeries, were robosigned, and are therefore invalid under state statute because “Plaintiff, who is not a party to either the assignment or the substitution of trustee … does not have standing to challenge the validity of these documents”); Javaheri v. JPMorgan Chase Bank, N.A., No. 2:1D-cv-08185-ODW, 2012 WL 3426278, at *6 (C.D. Cal. Aug. 13 2012) (holding that “[w]ile the allegation of robo-signing may be true, . . [the plaintiff] lacks standing to seek relief under such an allegation, noting that “District Courts in numerous states agree”); Mottale v. Tirey (S.D. Cal., 2014) (“Plaintiffs cite the recent California Court of Appeal case Glaski v. Bank of America National Association, et al., 218 Cal. App. 4th 1079 (Aug. 8, 2013), to support the plausibility of Plaintiffs’ unlawful securitization theory of liability. (Dkt. No. 22 at 3.)….The Court first notes that the weight of authority rejects Glaski as a minority view on the issue of a borrower’s standing to challenge an assignment as a third party to that assignment. See Rivac v. Ndex West LLC, No. C 13-1417 PJH, 2013 WL 6662762 at *4 (N.D. Cal. Dec. 17, 2013) (collecting cases); Boza v. U.S. Bank Nat. Ass’n, LA CV12-06993 JAK, 2013 WL 5943160 at *10 (C.D. Cal. Oct. 28, 2013) (same); In re Sandri, 501 B.R. 369, 374-78 (Bankr. N.D. Cal. 2013) (same).”); (“This Court finds the reasoning in the above-cited caselaw to be more persuasive than the reasoning in Glaski. See Rivac v. Ndex W. LLC, No. 13-1417-PJH, 2013 WL 6662762, at *4 (N.D. Cal. Dec. 17, 2013) Covarrubias v. Fed. Home Loan Mortg. Corp. (S.D. Cal., 2014) (“This court is persuaded by the majority position of courts within this district, which is that Glaski is unpersuasive,…(“[N]o courts have yet followed Glaski and Glaski is in a clear minority on the issue. Until either the California Supreme Court, the Ninth Circuit, or other appellate courts follow Glaski, this Court will continue to follow the majority rule.”) (citations omitted).”); Scomparin v. Deutsche Bank Nat’l Trust Co. (In re Scomparin) (Bankr. N.D. Cal., 2014) (“As determined in In re Sandri, 501 B.R. 369 (Bankr. N.D. Cal. 2013), the clear weight of authority is against Glaski and its reasoning is unpersuasive. The Glaski court’s interpretation of New York law is contrary to the more well-reasoned cases that have found that an act in violation of a trust agreement is voidable, not void….Consistent with Sandri and the majority of California court decisions that have addressed this issue, this court finds that Plaintiff has no standing to successfully challenge the validity or effectiveness of the transfer. Id. See also Patel v. Mortgage Electronic Registration Systems, Inc., 2013 WL 4029277 (N.D. Cal. Aug. 6, 2013); Sami v. Wells Fargo Bank, 2012 WL 967051 (N.D. Cal. Mar. 21, 2012) (collecting cases). Further, Plaintiff provides no response to Defendants’ position that they are entitled to enforce the debt even if the Loan was not deposited into the PSA. Specifically, if the Loan was not placed into trust, then whomever possesses the blank-endorsed Note memorializing the Loan is entitled to enforce the debt. Cal. Comm. Code § 3301. “); Colletti v. Nationstar Mortg., LLC (E.D. Mich., 2013) (Neither pooling the mortgage into mortgage-back security and selling it to a trust nor splitting the note from the indebtedness creates a cause of action. See Stafford v. Mortgage Elec. Registration Sys., Inc., 12-10987, 2012 WL 1564701, at *4 (E.D.Mich. May 2, 2012) (Cohn, J.) (quoting and collecting cases for the proposition that “courts have uniformly rejected the argument that securitization of a mortgage loan provides the mortgagor with a cause of action.” “To the extent that Plaintiffs’ proposed amended complaint would rely on claims regarding the securitization of the loan . . . into a mortgage-backed security, there is no merit to the contention that securitization renders the lender’s loan in the property invalid.”) (and citing cases for the proposition that splitting the indebtedness from the note does not render either invalid.) (citations omitted). The Court dismisses this claim.): M&T Bank v. Strawn, 2013 Ohio 5845 (Ohio App., 2013) (“the holder of a promissory note secured by a mortgage has an equitable interest in the mortgage and need not demonstrate that it was validly assigned the mortgage in order to establish standing.”): The transfer of a promissory note secured by a mortgage operates as an equitable assignment of the mortgage. See Fed. Home Loan Mortg. Corp. v. Rufo, 11th Dist. Ashtabula No. 2012-A-0011, 2012-Ohio-5930, ¶41; Citimortgage, Inc. v. Loncar, 7th Dist. Mahoning No. 11 MA 174, 2013-Ohio-2959, ¶17 (“in a foreclosure action, the holder of the note, regardless of whether it has been assigned the mortgage, has standing not only because it is the party entitled to enforce the instrument, but because it also has an equitable interest in the mortgage”); Citimortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, ¶21 (holder of the note has standing to foreclose). Thus, appellee acquired an equitable interest in the mortgage when it became a holder of the note, “regardless of whether the mortgage [was] actually (or validly) assigned or delivered”. Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶65; In reality, of course, a PSA is executed to benefit the investors who buy securities backed by the mortgage pool-investors who would be harmed by enforcing the PSA to keep mortgages out of the pooling trust. Unsurprisingly, courts invariably deny mortgagors third-party status to enforce PSAs. See, e.g., In re Walker, 466 B.R. 271, 284-85 (Bankr.E.D.Pa.2012); Kelly v. Deutsche Bank Nat’l Trust Co., 789 F.Supp.2d 262, 267-68 (D.Mass.2011); Bittinger v. Wells Fargo Bank NA, 744 F.Supp.2d 619, 625-26 (S.D.Tex.2010); Richard A. Lord, Williston on Contracts § 74:50 (4th ed.2012) (“If the objection to the validity of an assignment is not that it is void but voidable only at the option of the assignor, or of some third person, the debtor has no legal defense whether or not action is brought in the assignee’s name, for it cannot be assumed that the assignor is desirous of avoiding the assignment.”); Nobles, 533 S.W.2d at 926-27 (“It is settled that … a deed [executed by a person fraudulently misrepresenting his agency] is valid and represents prima facie evidence of title until there has been a successful suit to set it aside … [which] can only be maintained by the defrauded [principal].”); Rivac v. NDEX W. LLC (N.D. Cal., 2013) (District courts have consistently found that conclusory allegations of robo-signing are insufficient to state a claim, absent some factual support. See Baldoza v. Bank of America, N.A., 2013 WL 978268 at *13 (N.D. Cal. Mar. 12, 2013); see also Chan Tang v. Bank of America, N.A., 2012 WL 960373 at *10-11 (C.D. Cal. March 19, 2012); Sohal v. Fed. Home Loan Mortg. Corp., 2011 WL 3842195 at *5 (N.D. Cal. Aug. 30, 2011); Chua v. IB Property Holdings, LLC, 2011 WL 3322884 at *2 (C.D. Cal. Aug. 1, 2011))…Further, where a plaintiff alleges that a document is void due to robo-signing, yet does not contest the validity of the underlying debt, and is not a party to the assignment, the plaintiff does not have standing to contest the alleged fraudulent transfer. See Elliott v. Mortgage Electronic Registration Systems, Inc., 2013 WL 1820904 at *2 (N.D. Cal. Apr. 30, 2013); Javaheri v. JPMorgan Chase Bank N.A., 2012 WL 3426278 at *6 (C.D. Cal. Aug. 13, 2012). (“Plaintiffs here do not dispute that they defaulted on the loan payments, and the robo-signing allegations are without effect on the validity of the foreclosure process.); Tran v. Bank of N.Y. (S.D.N.Y., 2014) (“courts considering EPTL § 7-2.4 have held that “even if it is true that the Notes were transferred to the trust in violation of the trust’s terms [after the closing date of the trust], that transaction could be ratified by the beneficiaries of the trust and is therefore merely voidable.”); Brandrup v. Recontrust Co. N.A., 353 Or. 668, 303 P.3d 301 (Or., 2013) (Because a promissory note generally contains no description of real property and does not transfer, encumber, or otherwise affect the title to real property, it cannot be recorded in land title records.); Romani v. Nw. Tr. Servs., Inc. (D. Or., 2013) (Plaintiff argues that the foreclosure sale was invalid because Defendants failed to record every transfer of the Deed of Trust,…As the unrecorded assignments in this case occurred by operation of law when the Note was transferred by endorsement in blank, no recording was necessary. Defendants failure to record such assignments will not undo the completed foreclosure sale.); (Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1507.) (“Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing her obligations under the note.”); Jenkins v. JPMorgan Chase Bank, N.A. 216 Cal.App.4th 497, 515 (2013) (“An impropriety in the transfer of a promissory note would therefore affect only the parties to the transaction, not the borrower. The borrower thus lacks standing to enforce any agreements relating to such transactions.”)

  21. Dwight NJ- well-focused comments. And as I recall you are relatively new to this site. So good for you- and the rest of us by extension.

  22. @Rock a/k/a Bob Hurt, shill for Storm Bradford:

    Bob, there are plenty of cases where banksters, when confronted with arguments such as you pooh-pooh here, settle up with homeowners. The settlement stips get sealed. And there are published cases that have relied upon securitization and lack of original note arguments/defenses where homeowners have won. You have access to Westlaw (or Bradford has given you access to his account), so you can look these up for yourself.

    As for the Erobobo appellate brief, I note that you have been unable to challenge it in any way. And neither was Wells Fargo’s attys in their reply brief.

    And here’s a bulletin for you: The California Supreme Court has just agreed to decide whether a homeowner has standing to challenge a mortgage loan assignment. The case is —

    YVANOVA v. NEW CENTURY MORTGAGE CORPORATION
    Case: S218973, Supreme Court of California

    Date (YYYY-MM-DD): 2014-08-27
    Event Description: Petition for review granted; issues limited

    Notes: The petition for review is granted. Briefing and argument is limited to the following issue (see Cal. Rules of Court, rule 8.516(a)(1)): In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?

    Chin, J., was recused and did not participate.
    Votes: Cantil-Sakauye, C.J., Baxter, Werdegar, Corrigan and Liu, JJ.

    For more information on this case, go to:
    http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2078551&doc_no=S218973

    And guess what ROCK/BOB HURT? The CA Supreme Court decided to take the case AFTER RECEIVING AND REVIEWING THE EROBOBO AMICUS BRIEF FILED IN NY’S SECOND DEPT. APPELLATE DIVISION. That was the clincher for them.

    With all due respect, I’d advise you to hold your “counsel” unless you know what you’re talking about.

  23. Sorry So Call 7, only a moron would rely on a BRIEF written in a case!

    Every reputable court in the country has ruled the borrower IS NOT a third party beneficiary and has no standing. Its just another loser argument made by scammers & legal illiterates.

    Again, the homeowner must overcome their breach in order to be successful, and the ONLY way to do that is to attack the mortgage transaction, the multimillion dollar awards prove it.

    Show me one case where a homeowner received anything making frivolous arguments like “securitization,” “produce the note,” “MERS,” ad nauseum.

  24. Yo Rocko…very little of your pontificate is authoritative law, sorry to say. In fact all of it (even Jenkins and others) were very poorly plead and advanced cases. Still boggles me head that Jenkins is a published decision. The ONLY case law cited in support of lack of standing to question anything in the securitization process was a 1st Dist. case – Coreia – which was later wiped out by other 1st Circ. cases that held a borrower does have the right and can – WITH FACTS IN SUPPORT – to question the transfer of his/her obligation.

    I suggest you read up on the briefs in EROBOBO currently before the NY Court of Appeals. Very enlightening arguments there. In particular the proposition that mortgagors/borrowers ARE third party beneficiaries to REMIC Trusts…assuming their obligations were every actually transferred to the REMIC….which most normal people know NEVER happened.

    The point is that a debt should not evaporate…but a reasonable person should have the ability to know his creditor…TRUE CREDITOR…and then have the ability to make decisions and take acts or refrain from acts accordingly, with a reasonable expectation of actions/reactions either way. In almost all cases on the dockets today….if mortgagors begged, borrowed and stole to satisfy the stated (dubiously) debt, they can have NO ability to expect a satisfaction of debt with finality…nor can they negotiate in good faith. THAT is the major problem….don’t be a bank shill…..look at the facts….read the decisions that PRODUCE facts…..and read the PUBLISHED reports. Not slack jawed overpaid jurists whose minds are numbed and pockets are threatened….who only want to make tee times and abide the bread and circuses.

    What’s going on around the world…evil, death..wars and conflicts….they are bad to be sure. Very bad….but something as bad…as evil is happening here in our courts….with our leaders and government….that is letting law be perverted, usurped and denied…..these are the things a lot men (and women) died for….

    BORROWERS IN A REMIC TRUST ARE THIRD PARTY BENEFICIARIES!!!!!! Look it up.

  25. I’ve been pretty pleased with the info Neil G. has shared on this blog. In my opinion he is not claiming a “one size fits all” strategy, just look at his recent posts explaining more than just “securitization” points …
    He has identified multiple points to be addressed in foreclosure defense. –
    #1 – Pleading .. Your Answer to the Complaint must Deny everything. You cannot admit Default or it’s game over. Your answer to the complaint must deny everything.
    #2 – Deny that any valid or legal transaction took place at the origination.
    #3 – Place the Burden of Proof on the back of the Plaintiff, make them prove up the allegations in their Complaint.
    #4 – Exploit their “Holder” status , and educate the Judge on what the difference is. A plaintiff as “Holder” needs to prove the debt and validity of the contract by showing the financial transactions that took place from the point of origination, and throughout the entire chain that followed. Plaintiff has the burden of proof to reveal the facts that support his right to enforce the mortgage and note through foreclosure.
    #5 – Set and control the “narrative” from the beginning of the case.
    #7 – When the Plaintiff files a Motion to Strike your Affirmative Defenses and Dismiss your Counter Claims … You need to reply with your own Motion in Opposition to the Motion to Strike … you need to “remind” the Judge of the Plaintiffs status as a mere “Holder” and remind the Court of the fact that a Defendants affirmative defenses must be considered as potentially being true , turning the focus back onto the Plaintiff and it’s own responsibility and duty to bear the burden of proof to support it’s complaint. The Presumption Rebuttal. Due Process is needed in the most complete sense of the word. Discovery is needed in order to ferret out the truth that remains hidden behind a cloak of secrecy by the plaintiffs. It is their burden to show the proof.
    #8 – At trial … control the narrative and keep the court focused on the real issues that need to be addressed. Do not fall into the trap of discussing why you missed payments and are in default, etc.
    #9 – Know how to “Object” and when to object, and to what you are objecting … and why you are objecting.
    #10 – Know how to destroy the Banks witness who is testifying that she has firsthand knowledge because she reviewed the business records.
    #11 – Object to everything … and argue that the Mortgage itself has a clause called the “Borrowers Covenants” which grants you the right to defend generally against anything or anyone that might come against this property in some un-foreseen way in the future .. example: The Assignment of Mortgage is a FRAUD , a back-dated , engineered fraud with robo-signers , fake forged signatures for the Notary , etc … And when the Plaintiffs attorney tells the Judge that you have no right to object to the Assignment document because you are a third party to it and have no say in the matter .. you show the Judge your Mortgage and the Borrower Covenants which grant you the right to defend.
    #12 – Keep focusing the courts attention back onto the “money trail” or lack of it … show us the money … show us the transactions … show us who the actual Holder in Due Course really is, and prove it by showing the financial records and proofs to support it. Discovery.

    Neil G. has blogged about a lot more than just “securitization” .. and when he explains securitization as he is doing again now , it is for good reason … the securitization is the reason for all of the other things we are seeing in the layers of the onion. It is at the core of the Ponzi Scheme. The Judges who want to dismiss all of the different layers as being irrelevant .. or those who poo-poo securitization as “just the way things were done back then” , etc , etc .. are not allowing for the full Due Process that is needed to defend a foreclosure case. This is why Neil G. is showing us different angles and strategies to consider , but they all point to the same thing .. the fatally flawed origination, the lack of consideration, the transfers, the chain, etc , etc .. all piles of papers that create a false façade , the Judge plays along with the façade and it works in most cases … So these are drastic times when we cannot depend on the courts to ensure us of total Due Process , and this is why I find Neil’s blog helpful in the fact that it exposes where we need to attack and what our arguments are for attacking.. it starts with denying everything, it leads to arguing why a “holder” should carry the burden of proving its case and not be afforded any “presumptions”.
    Full and complete Due Process is the battle cry. Exploiting the thug banks plaintiff position as “Holders” is the weakest area in their armor.

  26. Rock A/K/A BOB HURT… why the pseudonym here, Bob ?

  27. No Bob G, not a lot of expense or time. Again, only scammers & legal illiterates make securitization arguments because they’re known losers.

    Because a foreclosure is an allegation the homeowner breached the contract for failing to make timely payments, homeowners need to overcome their breach by showing the mortgage transaction is bad.

    http://finance.yahoo.com/news/homeowners-receiving-multimillion-dollar-awards-155900638.html

  28. TO THIS FORUM’S PARTICIPANTS …..
    A TEACHABLE MOMENT COURTESY OF “ROCK”

    Rock seems to have gone to a lot of time/expense to dissuade this forum’s members to abandon both securitization and show-me-the-original-note defenses.

    In my opinion, Rock is an attorney in the employ of banksters. Note that virtually all of Rock’s case cites come from Westlaw (“WL”). Westlaw is a very expensive professional subscription service. So who would have access to Westlaw? Attorneys that can afford it. And Westlaw is typically more expensive than Lexis. You don’t have Westlaw or Lexis for that matter unless you have clients that are willing and able to pay for the necessary research. And if you’re in the foreclosure biz on behalf of the banksters, you are going to need Lexis or Westlaw. But you would have to be in the foreclosure prosecution business, not the foreclosure defense business. A foreclosure defense attorney would not several dozen cases favoring the banks at his disposal and disseminating with ridicule on this site.

    An estate planning or personal injury lawyer would not have several dozen anti-foreclosure defense cases at the ready. But Rock does, doesn’t (s)he?

    A lot of Rock’s cases are Federal, not state case cites. Federal judges are notoriously pompous and lazy and are given lifetime appointments. State judges do not have lifetime appointments.

    I would say that most of the failed foreclosure defenses come about as a result of poor litigation skills and a lack of knowledge as to what goes on behind the securitization curtain, and how to exploit it.

    When homeowners are successful, the case is typically sealed with a nondisclosure agreement between the parties, which only benefits the banksters.

  29. Ian-

    Detail on which topic?

  30. “Produce the note,” another loser argument.

    Preston v. Seterus, Inc., 931 F.Supp.2d 743 (N.D. Tex., 2013) (“Plaintiffs’ contention is that Defendants were required to hold, possess, and produce the original Note…and Defendants cannot produce the Note because it was split or separated from the Deed of Trust when Plaintiffs’ mortgage was securitized. The court agrees with Defendants…the so-called “show-me-the-note” and “split-the-note” theories that have been rejected by courts in this circuit applying Texas law.”)

  31. Rock-
    Can you give us a bit more detail pls. Thx

  32. Produce the note or shutup. Do not fall into the ambush set by the banksters.

    NEVER AGAIN

  33. Only losers & legal illiterates make securitization arguments!

    CASES HOMEOWNERS LOST ARGUING SECURITIZATION

    Rodenhurst v. Bank of Am., 773 F. Supp. 2d 886, 899 (D. Haw. 2011) (“The overwhelming authority does not support a [claim] based upon improper securitization.”) “[S]ince the securitization merely creates a separate contract, distinct from plaintiffs’ debt obligations under the Note and does not change the relationship of the parties in any way, plaintiffs’ claims arising out of securitization fail.” Lamb V. Mers, Inc., 2011 WL 5827813, *6 (W.D. Wash. 2011) (citing cases); Bhatti, 2011 WL 6300229, *5 (citing cases); In re Veal, 450 B.R. at 912 (“[Plaintiffs] should not care who actually owns the Note-and it is thus irrelevant whether the Note has been fractionalized or securitized-so long as they do know who they should pay.”); Horvath v. Bank of NY, N.A., 641 F.3d 617, 626 n.4 (4th Cir. 2011) (securitization irrelevant to debt); Commonwealth Prop. Advocates, LLC v. MERS, 263 P.3d 397, 401-02 (Utah Ct. App. 2011) (securitization has no effect on debt); Henkels v. J.P. Morgan Chase, 2011 WL 2357874, at *7 (D.Ariz. June 14, 2011) (denying the plaintiff’s claim for unauthorized securitization of his loan because he “cited no authority for the assertion that securitization has had any impact on [his] obligations under the loan, and district courts in Arizona have rejected similar arguments”); Johnson v. Homecomings Financial, 2011 WL 4373975, at *7 (S.D.Cal. Sep.20, 2011) (refusing to recognize the “discredited theory” that a deed of trust ” ‘split’ from the note through securitization, render[s] the note unenforceable”); Frame v. Cal-W. Reconveyance Corp., 2011 WL 3876012, *10 (D. Ariz. 2011) (granting motion to dismiss: “Plaintiff’s allegations of promissory note destruction and securitization are speculative and unsupported. Plaintiff has cited no authority for his assertions that securitization has any impact on his obligations under the loan”).”The Court also rejects Plaintiffs’ contention that securitization in general somehow gives rise to a cause of action – Plaintiffs point to no law or provision in the mortgage preventing this practice, and cite to no law indicating that securitization can be the basis of a cause of action. Indeed, courts have uniformly rejected the argument that securitization of a mortgage loan provides the mortgagor a cause of action.” See Joyner V. Bank Of Am. Home Loans, No. 2:09-CV-2406-RCJ-RJJ, 2010 WL 2953969, at *2 (D. Nev. July 26, 2010) (rejecting breach of contract claim based on securitization of loan); Haskins V. Moynihan, No. CV-10-1000-PHX-GMS, 2010 WL 2691562, at *2 (D. Ariz. July 6, 2010) (rejecting claims based on securitization because plaintiffs could point to no law indicating that securitization of a mortgage is unlawful, and “[p]laintiffs fail to set forth facts suggesting that Defendants ever indicated that they would not bundle or sell the note in conjunction with the sale of mortgage-backed securities”); Lariviere V. Bank Of N.Y. As Tr., Civ. No. 9-515-P-S, 2010 WL 2399583, at *4 (D. Me. May 7, 2010) (“Many people in this country are dissatisfied and upset by [the securitization] process, but it does not mean that the [plaintiffs] have stated legally cognizable claims against these defendants in their amended complaint.”); Upperman V. Deutsche Bank Nat’l Trust Co., No. 01:10-cv-149, 2010 WL 1610414, at *3 (E.D. Va. Apr. 16, 2010) (rejecting claims because they are based on an “erroneous legal theory that the securitization of a mortgage loan renders a note and corresponding security interest unenforceable and unsecured”); Silvas V. Gmac Mortg., Llc, No. CV-09-265-PHX-GMS, 2009 WL 4573234, at *5 (D. Ariz. Dec. 1, 2009) (rejecting a claim that a lending institution breached a loan agreement by securitizing and cross-collateralizing a borrower’s loan). The overwhelming authority does not support a cause of action based upon improper securitization. Accordingly, the Court concludes that Plaintiffs cannot maintain a claim that “improper restrictions resulting from securitization leaves the note and mortgage unenforceable); Summers V. Pennymac Corp. (N.D.Tex. 11-28-2012) (any securitization of Plaintiffs’ Note did not affect their obligations under the Note or PennyMac’s authority as mortgagee to enforce the Note and foreclose on the property if Plaintiffs defaulted).; Nguyen V. Jp Morgan Chase Bank (N.D.Cal. 10-17-2012) (“Numerous courts have recognized that a defendant bank does not lose its ability to enforce the terms of its deed of trust simply because the loan is assigned to a trust pool. In fact, ‘securitization merely creates a separate contract, distinct from [p]laintiffs[‘] debt obligations under the note, and does not change the relationship of the parties in any way. Therefore, such an argument would fail as a matter of law”); Flores v. Deutsche Bank Nat’l Trust Co., 2010 WL 2719848, at *4 (D. Md. July 7, 2010), the borrower argued that his lender “already recovered for [the borrower’s] default on her mortgage payments, because various ‘credit enhancement policies,'” such as “a credit default swap or default insurance,” “compensated the injured parties in full.” The court rejected the argument, explaining that the fact that a “mortgage may have been combined with many others into a securitized pool on which a credit default swap, or some other insuring-financial product, was purchased, does not absolve [the borrower] of responsibility for the Note.” Id. at *5; see also Fourness v. Mortg. Elec. Registration Sys., 2010 WL 5071049, at *2 (D. Nev. Dec. 6, 2010) (dismissing claim that borrowers’ obligations were discharged where “the investors of the mortgage backed securities were paid as a result of . . . credit default swaps and/or federal bailout funds); Warren v. Sierra Pac. Mortg. Servs., 2010 WL 4716760, at *3 (D. Ariz. Nov. 15, 2010) (“Plaintiffs’ claims regarding the impact of any possible credit default swap on their obligations under the loan . . . do not provide a basis for a claim for relief”). Welk v. GMAC Mortg., LLC., 850 F. Supp. 2d 976 (D. Minn., 2012) (“At the end of the day, then, most of what Butler offers is smoke and mirrors. Butler’s fundamental claim that his clients’ mortgages are invalid and that the mortgagees cannot foreclose because they do not hold the notes is utterly frivolous.); Vanderhoof v. Deutsche Bank Nat’l Trust (E.D. Mich., 2013) (internal citations omitted) (“s]ecuritization” does not impact the foreclosure. This Court has previously rejected an attempt to assert a claim based upon the securitization of a mortgage loan. Further, MERS acts as nominee for both the originating lender and its successors and assigns. Therefore, the mortgage and note are not split when the note is sold.”); Chan Tang v. Bank of America, N.A. (C.D. Cal., 2012) (internal citations omitted) (“Plaintiffs’ contention that the securitization of their mortgage somehow affects Defendants’ rights to foreclose is likewise meritless. Plaintiffs have identified no authority supporting their position that securitization voids the power of sale contained in a deed of trust. Other courts have dismissed similar arguments. Thus, the claim that Defendants lack the authority to foreclose because the Tangs’ mortgage was pooled into a security instrument is Dismissed With Prejudice.); Wells v. BAC Home Loans Servicing, L.P., 2011 WL 2163987, *2 (W.D. Tex. Apr. 26, 2011) (This claim—colloquially called the “show-me-the-note” theory— began circulating in courts across the country in 2009. Advocates of this theory believe that only the holder of the original wet-ink signature note has the lawful power to initiate a non-judicial foreclosure. The courts, however, have roundly rejected this theory and dismissed the claims, because foreclosure statutes simply do not require possession or production of the original note. The “show me the note” theory fares no better under Texas law.); Maynard v. Wells Fargo Bank, N.A. (S.D. Cal., 2013) (“Plaintiffs also allege that they conducted a Securitization Audit of Plaintiffs’ chain of title and Wachovia’s PSA, and as a result, determined that Plaintiffs’ Note and DOT were not properly conveyed into the Wells Fargo Trust on or before July 29, 2004, the closing date listed in the Trust Agreement. (Id. at ¶ 34.)… To the extent Plaintiffs challenge the validity of the securitization of the Loan because Wells Fargo and U.S. Bank failed to comply with the terms of the PSA or the Trust Agreement, Plaintiffs are not investors of the Loan, nor are Plaintiffs parties to the PSA or Trust Agreement. Therefore, as many courts have already held, Plaintiffs lack standing to challenge the validity of the securitization of the Loan…Furthermore, although Plaintiffs contend they have standing to challenge the validity of the Assignment because they were parties to the DOT with the original lender (Wells Fargo), this argument also fails. (Doc. No. 49 at 11-12.); Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 511-13, 156 Cal. Rptr. 3d 912 (Cal. Ct. App. 2013) (“[E]ven if any subsequent transfers of the promissory note were invalid, [the borrower] is not the victim of such invalid transfers because her obligations under the note remained unchanged.”). As stated above, these exact arguments have been dismissed by countless other courts in this circuit. Accordingly, Plaintiffs’ contentions that the Assignment is void due to a failure in the securitization process fails.”); Demilio v. Citizens Home Loans, Inc. (M.D. Ga., 2013) (“Frankly, the Court is astonished by Plaintiff’s audacity… Plaintiff requires the Court to scour a poorly-copied, 45-page “Certified Forensic Loan Audit” in an attempt to discern the basic facts of his case. This alone would be sufficient for dismissal. However, the Court is equally concerned by Plaintiff’s attempt to incorporate such an “audit,” which is more than likely the product of “charlatans who prey upon people in economically dire situation,”… As one bankruptcy judge bluntly explained, “[the Court] is quite confident there is no such thing as a ‘Certified Forensic Loan Audit’ or a ‘certified forensic auditor…. The Court will not, in good conscience, consider any facts recited by such a questionable authority.”); Leong v. JPMorgan Chase (D. Nev., 2013) (“Plaintiff insists that Defendant failed to provide the original note. The only possibly relevant Nevada statute requiring the presentation of the original note or a certified copy is at a Foreclosure Mediation. Nev. Rev. Stat. § 107.086(4). Moreover, the Court treats copies the same as originals: “a duplicate is admissible to the same extent as an original.” Nev. Rev. Stat. § 52.245. Defendants correctly point out that Plaintiff fails to cite to any authority that requires Defendants to produce the original Note, and Defendants additionally provide non-binding legal authority to the contrary. As such, this cause of action is dismissed with prejudice.’); Rivac v. NDEX W. LLC (N.D. Cal., 2013) (This court is persuaded by the “majority position” of courts within this district, which is that Glaski is unpersuasive, and that “plaintiffs lack standing to challenge noncompliance with a PSA in securitization unless they are parties to the PSA or third party beneficiaries of the PSA.” Shkolnikov v. JPMorgan Chase Bank, 2012 WL 6553988 at *13 (N.D. Cal. Dec. 14, 2012); see also, e.g., Zapata v. Wells Fargo Bank, N.A., 2013 WL 6491377 at *2 (N.D. Cal. Dec. 10, 2013); Apostol v. CitiMortgage, Inc., 2013 WL 6328256 at *7 (N.D. Cal. Nov. 21, 2013); Dahnken v. Wells Fargo Bank, N.A., 2013 WL 5979356 at *2 (N.D. Cal. Nov. 8, 2013); Almutarreb v. Bank of New York Trust Co., N.A., 2012 WL 4371410 at *2 (N.D. Cal. Sept. 24, 2012); Rivac v. NDEX W. LLC (N.D. Cal., 2013) (District courts have consistently found that conclusory allegations of robo-signing are insufficient to state a claim, absent some factual support. See Baldoza v. Bank of America, N.A., 2013 WL 978268 at *13 (N.D. Cal. Mar. 12, 2013); see also Chan Tang v. Bank of America, N.A., 2012 WL 960373 at *10-11 (C.D. Cal. March 19, 2012); Sohal v. Fed. Home Loan Mortg. Corp., 2011 WL 3842195 at *5 (N.D. Cal. Aug. 30, 2011); Chua v. IB Property Holdings, LLC, 2011 WL 3322884 at *2 (C.D. Cal. Aug. 1, 2011))…Further, where a plaintiff alleges that a document is void due to robo-signing, yet does not contest the validity of the underlying debt, and is not a party to the assignment, the plaintiff does not have standing to contest the alleged fraudulent transfer. See Elliott v. Mortgage Electronic Registration Systems, Inc., 2013 WL 1820904 at *2 (N.D. Cal. Apr. 30, 2013); Javaheri v. JPMorgan Chase Bank N.A., 2012 WL 3426278 at *6 (C.D. Cal. Aug. 13, 2012). (Plaintiffs here do not dispute that they defaulted on the loan payments, and the robo-signing allegations are without effect on the validity of the foreclosure process); Deutsche Bank Nat’l Trust Co. v. Tibbs, 2014 WL 280365, at *5 (M.D. Tenn. Jan. 24, 2014) (“[a] Deed of Trust need not be separately assigned so that the holder may enforce the note; as goes the note, so goes the Deed of Trust.'”)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: