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EFFORTS OF CATARINA BENITEZ PAY OFF FOR HOMEOWNERS IN LANDMARK YVANOVA V. NEW CENTURY DECISION

3. March, 2016|Uncategorized|3 comments

CONTACT:       Celeste Miranda                                                                         FOR IMMEDIATE RELEASE

TELEPHONE:   805.744.2424

EMAIL:              celeste@mirandamarketinglabs.com

 

FRESNO, CALIFORNIA – March 3, 2016 – In another huge triumph for homeowners, on February 18, 2016, the California Supreme Court upheld a prior decision in the Yvanova v. New Century case which allowed the borrower to challenge his foreclosing party on the basis of wrongful foreclosure on the grounds that the assignment of note is void. Judges cited the landmark decision, Glaski vBank of America, N.A., 218 CalApp. 4th 1079 (2013) numerous times in the ruling. The Glaski victory was due in large part to the tireless efforts of Fresno, California based attorney Catarina Benitez.

 

“The Yvanova decision is another pivotal step in the fight for homeowners’ rights in the state of California,” Benitez stated. “I am grateful that the Glaski case set a precedent for the Yvanova ruling as we continue to move toward fairness in foreclosure laws. Even after Glaski, borrowers have continuously fought to the right to challenge a void assignment. This decision is beyond extraordinary for those who were improperly foreclosed upon or suffered fraudulent foreclosures.

 

In February 2014, the California Supreme court refused to grant the five major banks’ request for depublication of Glaski v. Bank of America. The banking giants lobbied to have records of the decision thrown out in hopes that it would prevent subsequent rulings of similar nature. The decision favored Glaski and – as evidenced by the Yvanova case – helped pave the way for the homeowner’s ability to fight against unlawful foreclosure.

 

In Yvanova, a complaint was made that Morgan Stanley, the investment trust to which the Deed of Trust was purportedly assigned on December 19, 2011, had a closing date of January 27, 2007. On Demurrer, the lower court held that because Plaintiff did not allege she had tendered payment of her debt, and because she was an unrelated third party to the assignment, she did not have standing to enforce the terms of the agreements allegedly violated.

 

“We are still in the early stages of the battle on behalf of the homeowners of California,” Ms. Benitez said. “The court system of California – and throughout the United States – must continue to reexamine any laws or rulings that favor the big banks over the citizens.”

 

About The Law Offices of Catarina Benitez:

The Law Offices of Catarina M. Benitez, based in Fresno, California, emphasizes real estate, bankruptcy and civil matters and represents clients throughout the Central Valley. Ms. Benitez is also bi-lingual (Spanish). For more information on the Law Offices of Catarina M. Benitez, please visit www.benitezlawfirm.com.

What Happens During a Bankruptcy Consultation?

30. January, 2015|Uncategorized|No comments

The initial consultation is to determine the client’s best course of action. The attorney will generally review your financial situation, discuss possible solutions (such as Chapter 7, Chapter 13, debt negotiation/debt settlement, and mortgage foreclosure defense), and answer any questions. This first meeting is an opportunity not only to get a professional appraisal of your financial status, but also to see if the attorney is a good fit for you.

In my office the Bankruptcy consultations are always FREE.

Bankruptcy laws require that the attorney conduct an income analysis. This is generally done during the initial consultation. If you decide to retain our office, there is generally more detail that is obtained after the initial consultation.

How do you prepare for your first Bankruptcy Consultation?

1) Be ready to answer questions about your finances HONESTLY. If you withhold information, it will become difficult for the attorney accurately assess your financial situation. At my office, I try to make clients feel comfortable, as filing Bankruptcy is often a stressful process, but just know that your attorney is there to ease some of that burden.

2) Read ALL information provided by the attorney. With may documents I provide, I require clients to sign the documents, acknowledging that they have been read.

Reviewing documents is especially important when it comes to filing the Bankruptcy petition, as the petition is signed under penalty of perjury and provides that the debtor disclosed all information. Being “forgetful” when filing Bankruptcy causes many problems down the road.

3) During the first meeting, have the following information available:

a.Basic biographical information, e.g., full name, address, phone numbers, email address, etc.
b.Number of dependent children and their ages;
c.Length of time you have lived in the state;
d.Whether you have filed for bankruptcy before, chapter, and case number, if possible.
e.Purchase date, value, loan balance, and payment amount for your home and any other real property that you own;
f. Makes, models, mileage, and years on all vehicles owned. If there is a balance, that will be needed as well.
g. A total balance of all unsecured debt, such as credit cards, personal loans, medical bills, and student loans (a rough balance is fine to start);
h. All tax information, including whether or not you have outstanding tax debt.
i. Information about all judgments and lawsuits filed against you, and those you have filed against others.
j. Any and all information about income changes within the last 6 months, as well as any expected financial changes.

Most of all, feel free to ask questions! Many times, people are shy or nervous, so they are often afraid to ask “dumb questions”. Just know that your bankruptcy attorney is there to help you, and any questions that can be answered, should.

If You’re My Bankruptcy Client, There’s a Reason I Annoy You

13. November, 2013|Uncategorized|One comment

This post goes out to all of my Bankruptcy clients (past, present, and future), who I genuinely cherish – as I believe everyone deserves a fresh start when they are down on hard times.

There has come a known trend in my office lately, however, that clients get upset or annoyed when my staff and I call them asking for documents. Let me explain why these documents ARE necessary.

In a Chapter 7 case, known as a liquidation of assets to pay down debts, one of the Trustee’s functions is to determine what assets a particular debtor has. This may be done by examining documents, such as bank statements, tax records, and other financial data. This is of importance, as it also determines whether the debtor has any non-exempt assets (exemptions will be discussed in a future post).

In a Chapter 13 case, document review is equally important, as it assists in determine whether a plan was properly crafted, and whether the debtor’s income is sufficient to substantiate the proposed plan.

HERE is where the problem comes in. As a courtesy, my office provides the clients with a list of documents necessary for my office to efficiently create their Bankruptcy petition. These documents are for purposes of determining income, assets, and debts. The list of documents includes but is not limited to: Bank Statements received within 90 days of filing, updated pay check stubs, tax returns for the past two years, mortgage documentation, and vehicle information (my list is more exhaustive).  When I ask for these documents, many times clients are upset,  because the documents are “too time consuming” to gather, or the clients just don’t want to bother. Although I explain why these documents are reasonable and necessary, for a good MAJORITY of my clients, the light bulb equating necessity does not turn on for them until they attend the Meeting of Creditors.

HERE is what the law Requires:

11 USC § 521 – Debtor’s duties – The Debtor Shall File:

Copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor. (This includes the month of pay check stubs for the month the petition is filed)

–  a statement disclosing any reasonably anticipated increase in income or expenditures over the 12-month period following the date of the filing of the petition;

In addition, 11 U.S.C.  § 521(i)(1) Further Provides –  A “case shall be automatically dismissed” if the debtor fails to file all mandatory documents…”if the following documents are not provided, § 521(a)(1) provides for an automatic dismissal. These documents include:

  • A list of creditors
  • A schedule of assets and liabilities
  • A statement of financial affairs
  • If § 342(b) applies, the certificate of the attorney whose name is on the petition as the attorney for the debtor indicating that the attorney delivered to the debtor the notice required by § 342(b)
  • Copies of all payment advices or other evidence of payment received within 60 days pre-petition by the debtor from any employer of the debtor
  • A statement of the amount of monthly net income, itemized to show how the amount is calculated
  • A statement disclosing any reasonably anticipated increase in income or expenditures over the 12-month period following the date of the filing of the petition

– Hence the reason why we pressure clients to turn these documents in timely! Although clients think it is a pain in the rear to provide all of these documents, EVERY single client who sat through a Meeting of Creditors with me, (and watched other debtors get reamed for failing to provide documents) thanked me….and now you will too! 

Good Luck!

 

My First Foreclosure Case – Published – Glaski v. Bank of America et al.

24. July, 2013|Uncategorized|15 comments

Approximately 38 days ago, the case of my VERY first foreclosure client was decided. As of today, 30 days ago, that same case was officially considered “Published”. Now for those of you who have not had faced the impending doom of foreclosure, you may not realize why this is so important. Actually, up until maybe a couple of weeks ago, (after receiving incessant compliments and communication from people all over the country on how this case will help them), I did not realize how much of an impact this case has had and will continue to have.

What Is This?

Now just what is this post all about? This post revolves around the case Glaski v. Bank of America 218 Cal. App. 4th 1079 (2013). The decision rendered by the 5th District Court of Appeal for the state of California provides that where a borrower has a home loan which is securitized, a borrower can challenge the securitized trust’s claim to ownership by alleging that the attempts to transfer the Deed of Trust to the securitized trust occurred after the trust’s closing date.  In addition, the justices held that 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.

How Did I Get Involved?

It all began around January, 2009, just seven months after I passed the California bar exam. I was on the job hunt and responded to a Craigslist post to assist an attorney with court appearances and legal research. Since I did not have a full time job, and wasn’t exactly sure what I wanted to do with myself in the legal world, I responded. For months, the attorney and I tackled what is generally referred to as “door law” (anything that walked in the door). I quickly learned the ins and outs of Family law, Bankruptcy, and tackled a few real estate issues. In the Spring of 2009, the attorney and I received calls from people who were depressed, distraught, heartbroken, and angry, with their dealings with their lenders. Many had been seeking loan modifications for months – some for years- with no success. Since we knew of no one else in the Fresno area taking on these cases (because they were not money-making cases), we decided to take them on. Me, being the new and ignorant attorney that I was, did not consider the amount of work, and little monetary reward that would accompany this area of the law. I did it because I wanted a challenge.

Around July, 2009, the attorney I worked with decided to shut his office down, as he had work in other parts of the country.  By that time, I had had so much autonomy as an independent attorney, I wasn’t sure if working for a firm would fulfill me. By August, 2009, I made the bold decision to open my own office. I scrounged up the little money that I had and threw an office together.

Then came my first foreclosure client- Tom Glaski.

His home was sold at a Trustee’s Sale just weeks prior to visiting my office. This house had been more than just a house for him – it was a place where he and his wife planned to reside after retirement, it served as a horse rescue, and it was the place he and his wife called home. He had made several attempts to save the home through a loan modification, but never received a return response. The only way he learned that his home was sold at a Trustee’s Sale was when an agent from the real estate company which was listing the home for sale served him with eviction documents. Just prior to facing an eviction trial, I agreed to take his case. I filed a Complaint based on the bank’s wrongful denial of his loan modification and sought to stay the eviction trial so my client could remain in his home until the wrongful foreclosure case was resolved. That attempt was a bust. By late October, 2009, my client and his wife were evicted from their home. For close to two years, we fought for justice – we fought for the “American Dream”. Ultimately, in late 2011, the case was dismissed, after all causes of action were sustained without leave to amend.

An appeal was filed in November, 2011, which caused the 5th District Court of Appeal to re-examine this case. After a year and a half of fighting at the appellate court level, with the introduction of appellate counsel, the 5th District overruled the Demurrer as to the 3rd, 4th, 5th, 8th, and 9th causes of action.

Why Is This Important?

Borrowers all over the country have been challenging this issue for years, along with issues related to forged documents, false affidavits, and a failure to establish the papertrail which leads to the purchase of any of these foreclosed homes. This also allows the borrower to challenge a lender’s claim of ownership when it attempts to transfer a homeowner’s Deed of Trust to a securitized trust after the trust’s closing date.

Now, for the first time – borrowers in California have the legal right to challenge the assignments of their mortgages and possibly prevent a Trustee’s Sale, and have the right to question the ability of a lender to sell a borrower’s home. 

Although this case isn’t over just yet, it creates a great opportunity for homeowners and definitely makes my job more exciting.