In Yvanova v. New Century Mortgage Corpthe California Supreme Court held that in a case where a homeowner alleges a nonjudicial foreclosure sale was wrongful because of a void assignment, the homeowner has standing to sue for wrongful foreclosure.
In Sciarratta v. U.S. Bank National Association the question of “prejudice” left open in Yvanova was decided. Where a homeowner alleges foreclosure by one with no right to do so, do such allegations alone establish the requisite prejudice or harm necessary to state a cause of action for wrongful foreclosure? Or instead, to adequately plead prejudice, does the plaintiff-homeowner have to allege the wrongful foreclosure interfered with his or her ability to pay on the debt, or lead to a foreclosure that would not have otherwise occurred? Continue reading →
The courthouse doors are now routinely slammed shut against homeowners who allege wrongful foreclosure based upon alleged defects in securitization trusts, despite the holding in Glaski v. Bank of America. Continue reading →
The doctrine of equitable subrogation allows a court to give effect to the intentions of the parties with respect to lien priority in secured real estate transactions. The doctrine can be stated as follows: A lender who advances money to pay off an encumbrance on real property, at the request of the owner or holder of the encumbrance, with the understanding that the advance is to be secured by a first priority lien: 1) Is not a volunteer; 2) In the event the new security is not a first lien, the holder will be subrogated to the rights of the prior encumbrancer, unless the new encumbrancer is charged with “culpable and inexcusable neglect” or the superior or equal equities of others would be prejudiced. Continue reading →
Rossberg v. Bank of America is a case about factual allegations which will not win the day in a suit to enjoin a nonjudicial foreclosure sale. The Rossbergs attempted to allege defects sufficient to invalidate the recorded Notice of Default and sought to enjoin the foreclosure sale of their residence. The take-a-ways: Continue reading →
Once again a Court of Appeals affirms the trial court’s ruling sustaining a demurrer without leave to amend of a homeowners’ complaint which challenged the MERS registration system and the assignment of the underlying note by MERS. Continue reading →
The Fifth Appellate District holds in Glaski v. Bank of America that a borrower may challenge a securitized trust’s claim to ownership of the deed of trust by alleging “the attempts to transfer the deed of trust to the securitized trust (which was formed under New York law) occurred after the trust’s closing date. Transfers that violate the terms of the trust instrument are void under New York law, and borrowers have standing to challenge void assignments of their loans even though they are not a party to, or a third party beneficiary of, the assignment agreement.” Continue reading →
Under the doctrine of merger of title an owner of an estate in land cannot also hold an easement in the same land. This doctrine is codified in two statutes: 1) Civil Code section 805 which states: “A servitude thereon cannot be held by the owner of the servient tenement;” and 2) Civil Code section 811 which provides that a servitude is extinguished by the vesting of the right of the servitude and the right to the servient tenement in the same person.
The rationale for these statutes is to avoid nonsensical easements where they are unnecessary because the owner owns the estate. However, despite the statutory language, the doctrine of merger is not applicable in every case. It is only applied to prevent injustice where it serves the interests of the person holding the two estates in absence of a contrary intent. It is not applied where it would result in injustice, injury, or prejudice to a third person. An agreement that there will not be a merger is generally enforced. Continue reading →