from TF Metals Report:
This is too important to not share. I found out about this last week, and wanted to get an update out there. But, there are absolute legal wizards on this who are far better and concise at stating the importance of this decision by the California Supreme Court, UPHOLDING the right of someone who claims their home was taken illegally by a shady bank that has no right to foreclose.
I am posting, verbatim, their analysis of the Supreme Court of California decision, Yvanova v. New Century Mortgage Corp., No. S218973 (Cal. Feb. 18, 2016). These lawyers have been in the trenches, doing the heavy lifting, and deserve HIGH praise for the unwavering efforts. The Yvanova decision is a watershed moment, and opens the floodgates for borrowers to challenge foreclosures based on the foreclosing bank (or its agents) not having the power to foreclose because they do not hold the paper giving them the right to do so. In past posts, I called this the “show me the note” foreclosure defense.
A lot of the earlier litigation challenged every part of the foreclosure scheme, using state and local laws, with cases filed in state and federal courts, including the concept of “show me the note.” Many legal theories were tested, and rejected by the courts. One case, Glaski, a seeming outlier, actually helped a borrower against the banks, and validated the concept of “show me the note.” However, Glaski was roundly criticized and many courts rejected the reasoning of Glaski. Basically, the banks won and the little guys were getting screwed every which way.
Both the local judges, and the appellate courts at the state level, were rejecting “show me the note.” The concept in the judges’ minds was that no one should get a free house. I heard it myself at gatherings, as the judges just could not grasp the concept that the entire system was corrupt, and that on balance, if the foreclosing bank could not prove the right to foreclose, then legally, the borrower could challenge the process and stop the foreclosure. Whether that ended up giving the borrower a “free” house was besides the point. The whole point was that it was illegal for someone or some entity to take someone’s house without having paper proof enabling them to do so. Simple concepts, but the clash of the equities of “free home” versus the rule of law resulted in favor of the big banks.
This concept was tested in the federal courts, too. The federal courts, applying their version of California state law, rejected Glaski in favor of other legal decisions that favored the banks. This made for what we all knew was going to be a California supreme court decision setting forth the final pronouncement on just exactly which line of cases would control and be the definitive law in the state of California.
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