Wrongful Foreclosure: Borrowers May Challenge Void Assignments of Deeds of Trust

  In Glaski v. Bank of America, the appellate court held a borrower may base a wrongful foreclosure claim on allegations that the foreclosing party acted without authority because the assignment by which it purportedly became beneficiary under the deed of trust was not merely voidable but void. Subsequent appellate court opinions, for a variety of reasons, refused to follow Glaski.

  In Yvanova v. New Century Mortgage the California Supreme Court considered the narrow question, considered in Glaski, of whether the borrower on a home loan secured by a deed of trust may base an action for wrongful foreclosure on allegations a purported assignment of the note and deed of trust to the foreclosing party bore defects rendering the assignment void. Continue reading

Wrongful Foreclosure: Ineffective Securitization? So What?

  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

Deed of Trust Exception to Merger of Title Doctrine?

  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