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.