Documente Academic
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Documente Cultură
______________________
PETITION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE;
BRIEF OF AMICUS CURIAE
______________________
MARK F. DIDAK (SBN 104059)
LAW OFFICE OF MARK F. DIDAK
520 Burnside Avenue, No. 9J
Los Angeles, California 90036
Telephone: (310) 433-4489
mdidak@didaklaw.com
Attorneys for Amicus Curiae
TABLE OF CONTENTS
Page
II.
III.
IV.
B.
2.
C.
D.
E.
F.
G.
H.
I.
2.
V.
VI.
Conclusion .............................................................................................................. 24
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Adams v. Madison Realty & Dev., Inc. (3d Cir. 1988) 853 F.2d 163 ....... 20, 21, 22, 23, 24
Adler v. Newell (1895) 109 Cal. 42.................................................................................. 8, 9
Ahern v. McCarthy (1895) 107 Cal. 382.............................................................................. 8
Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226 ............................................... 9
Ball v. DBNTC (W.D. Mo. 2012) 2012 U.S. Dist. LEXIS 17978 ............................... 13, 14
Bayview Loan Servicing, LLC v. Nelson (Ill. Ct. App. 2008) 382 Ill.App.3d 1184 .......... 15
Bunting v. Saltz (1890) 84 Cal. 168 ....................................................................... 19, 20, 21
California Golf, L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053........................................ 9
Chilton v. Fed. Nat. Mortgage Assn. (E.D. Cal. 2009) 2009 WL 5197869 ...................... 10
Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284 .........5, 6, 7, 8, 12, 17, 22, 23, 25
Coon v. Shry (1930) 209 Cal. 612........................................................................................ 8
Creative Ventures, LLC v. Jim Ward & Assocs. (2011) 195 Cal.App.4th 1430 .......... 20, 21
Deutsche Bank National Trust Co. v. Ramotar (Sup.Ct. N.Y. 2011) 2011 WL 66041 ..... 15
First American Title Ins. Co. v. XWarehouse Lending Corp.
(2009) 177 Cal.App.4th 106 .............................................................................................. 8
Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256 .................................... 18
Friends of the Earth, Inc. v. Laidlaw. Entl. Servs. (TOC), Inc.
(2000) 528 U.S. 167 ......................................................................................................... 13
Garfinkle v. Superior Court (1978) 21 Cal.3d 268 ............................................................. 8
Glaski v. Bank of America, etc. (2013) 218 Cal.App.4th 1079 .......................................... 2
iii
Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 ....................... 7, 9
Haug v. Riley (1897) 101 Ga. 372, 20 S.E. 44 ................................................................... 21
Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495 ..................... 5
Holmes v. Warren (1904) 145 Cal. 457 .............................................................................. 8
In re: Palmdale Hills Property, LLC (9th Cir. 2011) 654 F.3d 868 ................................. 13
In re Veal (9th Cir. B.A.P. 2011) 450 B.R. 897................................................................... 6
Javaheri v. JP Morgan Chase Bank, N.A.
(C.D. Cal. 2011) CV10-08185 ODW (FFMx) ..................................................... 10, 14, 16
Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497 .......................... 5, 19
Kemp v. Countrywide Home Loans, Inc. (Bk. D. N.J. 2010) 440 B.R. 624 ................ 14, 15
Keshtgar v. U.S. Bank, N.A. (2014) 226 Cal.App.4th 1201............................................. 2, 8
Mata v. Citimortgage, etc., et al.
(C.D. Cal. 2011) 2011 WL 4542723.................................................................................. 6
McLaughlin v. Wells Fargo Bank (C.D. Cal. 2013) 2013 WL 1164432 ..................... 13-14
Melendrez v. D&I Investment, Inc. (2005) 127 Cal.App.4th 1238 ...................................... 9
Naranjo v. SBMC Mortgage (S.D. Cal. 2012) 2012 WL 3030370........................ 14, 15, 16
Ohlendorf v. Amer. Home Mort. Servicing
(E.D. Cal. 2010) 2010 WL 31098 .............................................................................. 10, 14
Ord v. McKee (1855) 5 Cal. 515 .......................................................................................... 8
Peng v. Chase Home Finance LLC (2014) 2d Dist. Case No. B245436 ........................... 18
Pollard v. Saxe and Yolles Dev. Co. (1974) 12 Cal.3d 374 ............................................... 20
Pribus v. Bush (1981) 118 Cal.App.3d 1003 ............................................. 20, 21, 22, 23, 24
Secrest v. Security Nat. Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544 ........ 19
iv
vi
Mark F. Didak
_________________________________
MARK F. DIDAK
Attorneys for Amicus Curiae
Since
approximately 2010, Petitioner has focused most of his time litigating issues relating
Mark F. Didak
_________________________________
MARK F. DIDAK
Attorneys for Amicus Curiae
I.
home loan, does the borrower have standing to challenge an assignment of the note
and deed of trust on the basis of defects allegedly rendering the assignment void?
Answer: Yes.
II.
SUMMARY OF ARGUMENT
Long-established and controlling principles of mortgage law protect the rights
When these
requirements are not fulfilled, however, the putative assignment is void, and the
putative assignee remains a stranger to the loan contract between the lender and the
borrower. A borrower has standing to bring a legal action to prevent such a stranger
from taking her property.
The unarguable legal premise of Ms. Yvanovas lawsuit is that a borrowers
obligations are determined by the borrowers loan contract. Ms. Yvanova contracted
to make her mortgage payments to the owner of legal title to her debt, or the legal
owners authorized agent. Her loan contract does not allow strangers to demand or
collect payments orworseforeclose under color of a trust deed they have no right
to enforce and which clouds plaintiffs title. Like other borrowers, plaintiff did not
agree to pay somebodyrather, she agreed to pay a particular bank on particular
terms, that banks valid successor, or their authorized agents.
III.
note would . . . affect only the parties to the transaction, not the borrower. The
borrower thus lacks standing to enforce any agreements relating to such transactions.
LEGAL ARGUMENT:
In Cockerell v. Title & Ins. Co., (1954) 42 Cal. 284, 293a case involving the
right to proceeds from the nonjudicial foreclosure sale of real propertythe Supreme
Court held that a party claiming rights as an assignee of a mortgage note bears the
burden of proving it received a valid assignment by clear and positive evidence, and
that courts are prohibited from presuming such assignments are valid: . . . [T]he
measure of sufficiency requires that the evidence of assignment be clear and positive
to protect an obligor from any further claim by the primary obligee . . . . Id., 42
Cal.2d at p. 292, citations omitted.
assignment of the mortgage note has no standing to complain about not receiving
proceeds of the note or a sale of property securing it. Cockerell, supra, 42 Cal.2d at p.
293. Hence, it is those who cannot prove they received a valid mortgage assignment
who lack standing, not borrowers alleging absent or defective assignments. See also
Mata v. Citimortgage, etc., et al. (C.D. Cal. 2011) 2011 WL 4542723, *2 (because
Cockerell requires a party claiming rights under an assignment to prove a valid
assignment, borrowers stated a claim for declaratory relief as to whether their servicer
was entitled to collect their monthly mortgage payments where defendants refused
borrowers demands to provide such proof); see also In re Veal (9th Cir. B.A.P. 2011)
450 B.R. 897, 908, 913 (financial institutions that were not initial note payees were
required to demonstrate facts to establish prudential standing to sue to enforce it, in
turn requiring them to demonstrate a factual basis for claiming the substantive legal
right to enforce the note).
Since an assignee acquires no better rights than those belonging to the assignor
(Cockerell, supra, 42 Cal.2d at p. 293), the validity of claimed assignments of a
borrowers mortgage note depends on the validity of each purported sale of the note.
Defendants must prove a valid assignment to each assignee in the chain of title to the
note, including the authority of any indorser to bind that company. Id. A court may
not simply assume these facts:
entity is not in default. Requiring the borrower to pay such an entity exposes the
borrower to the risk of double-payment if payment is demanded by another party
actually entitled to it. (See discussion at pp. 23-24, infra.) Indeed, that is precisely
why Cockerell requires a party claiming under an assignment to prove a valid
assignment by clear and positive evidence. Id., 42 Cal.2d at p. 292, citations omitted
(assignee must provide clear and positive proof of a valid assignment to protect an
obligor from any further claim by the primary obligee . . . .).
Worse, allowing an entity without actual authority to enforce the obligation to
take a borrowers home through foreclosure sanctions theft of the home.
For these reasons, a borrower has standing to bring an action to challenge the
foreclosing entitys authority where, as here, the borrower alleges facts which, if
proved, show the foreclosing party has no right to enforce the debt. (See discussion at
pp. 9-10, infra concerning the statement in Gomes v. Countrywide Home Loans, Inc.
(2011) 192 Cal.App.4th 1149, 1154, fn. 5, that California courts have repeatedly
allowed parties to pursue additional remedies for misconduct arising out of a
nonjudicial foreclosure sale when not inconsistent with the policies behind the
statutes.)
As we explain below (see Argument H, Section 2a, infra, p. 20), a mortgage
assignment must be made pursuant to a writing meeting the requirements of the
Statute of Frauds.1
for clear and positive proof of such a writing necessarily includes contracts for sale
of the note to which the borrower is not a party, such as mortgage sales agreements
and/or securitization agreements. The rule adopted by the court below, however, bars
lawsuits by borrowers who might rely on securitization agreements or other contracts
as evidence, thereby treating mortgage transfers via such agreements as presumptively
trust secures. Adler, supra. This is a bedrock legal principle that is meaningless
unless a borrower can challenge a pretender seeking to enforce her mortgage note or
trust deed.
B.
1.
Here, Their Lawsuits Are Consistent With the Policies Behind Californias
Nonjudicial Foreclosure Statutes.
parties to pursue additional remedies [i.e., legal action] for misconduct arising out of a
nonjudicial foreclosure sale when not inconsistent with the policies behind the
statutes. Gomes, supra, 192 Cal.App.4th at p. 1154, fn. 5, citing California Golf,
L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053, 1070-1071. There are three primary
policy objectives underlying the nonjudicial foreclosure provisions of the Civil Code:
(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy
against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss
of the property; and (3) to ensure that a properly conducted sale is final between the
parties and conclusive as to a bona fide purchaser. Melendrez v. D & I Investment,
Inc. (2005) 127 Cal.App.4th 1238, 1249-1250; accord, California Golf, supra. The
California Supreme Court adopted this approach in Alliance Mortgage Co. v.
Rothwell, (1995) 10 Cal.4th 1226, 1237.
Allowing borrowers to sue to forestall foreclosure where they allege facts
which, if true, support a claim that the wrong party is trying to foreclose supports the
policy of protecting debtors from wrongful loss of their properties. It promotes the
policy of ensuring that a properly conducted sale is final between the parties and
conclusive as to a bona fide purchaser by reducing the risk of post-sale challenges. It
promotes the policy of providing a genuine creditor/beneficiary with a quick,
inexpensive and efficient remedy against a defaulting debtor.
The basic bargain of the nonjudicial foreclosure statutes is that lenders can use
a streamlined nonjudicial process if they do not pursue a deficiency judgment. That
bargain in no way affects the ancient rule that the foreclosing entity must either own
the debt or be the debt owners authorized agent. See Ohlendorf v. Amer. Home Mort.
Servicing (E.D. Cal. 2010) 2010 WL 31098 (nonjudicially foreclosing defendants
must prove that they have the right to foreclose); Javaheri v. JP Morgan Chase
Bank, N.A. (C.D. Cal. 2011) CV10-08185 ODW (FFMx); Chilton v. Fed. Nat.
Mortgage Assn. (E.D. Cal. 2009) 2009 WL 5197869 (foreclosure trustee must have
permission to act on behalf of the proper beneficiary, i.e., the notes current owner).
2.
10
All further statutory references are to the Civil Code unless otherwise
indicated.
4
In short, the HBR gives a borrower the right to demand that lenders and
servicers show me the noteand other critical documentsto prove their right to
enforce the note and deed of trust.
11
in
Nonjudicial Foreclosures.
California law is clear that when a party who is not the original lender or its
authorized agent seeks to judicially foreclose on a mortgage, it must prove it owns the
note or is the owners authorized representative. See 5 Witkin, Cal.Proc. (5th ed.
2008), Pleadings, 675, 676 (foreclosure complaint should allege, inter alia, (3)
Plaintiffs ownership of the note and mortgage if he or she is a transferee and not the
original payee or mortgagee; allegation of assignment to plaintiff). There is no valid
reason why this rule should not apply where the borrower pleads facts which, if true,
demonstrate that an entity lacking a valid assignment is attempting to foreclose
nonjudicially. Indeed, Cockerell shows that this principle applies equally to cases
involving nonjudicial foreclosures.
foreclosure statutes allow the beneficiary to use a streamlined process in exchange for
giving up the right to pursue a deficiency, but nothing in the statutes suggests that
they were designed to provide less protection to property owners by allowing
foreclosures by persons or entities lacking authority.
12
D.
Under Article III of the United States Constitution, standing requires only that
a plaintiff suffered an injury in fact that is (1) concrete and particularized; (2) actual
or imminent, not conjectural or hypothetical; (3) the injury is fairly traceable to the
challenged action of the defendant; and (4) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. See In re:
Palmdale Hills Property, LLC (9th Cir. 2011) 654 F.3d 868, 873, citing Friends of the
Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc. (2000) 528 U.S. 167, 180181.
Ms. Yvanova alleges a concrete and particularized injury in the form of being
foreclosed upon by defendants who were not entitled to enforce her mortgage note or
trust deed. This damage has already occurred and is continuing. These injuries are
directly traceable to defendants challenged actions, including initiating foreclosure
proceedings and threatening to complete them. A decision in favor of plaintiff will
redress this injury. Article III standing is therefore established.
E.
Better reasoned recent cases decided by federal courts hold that a borrower
does not lose standing simply because her complaint mentions a securitization
agreement.
1164432; Ball v. DBNTC (W.D. Mo. 2012) 2012 U.S. Dist. LEXIS 17978, *11. The
McLaughlin the court wrote:
Defendants argue that Plaintiff has no standing to challenge an improper
transfer of his Deed of Trust because he is not a party to the Pooling
Service Agreement (PSA) and thus cannot bring a claim for a breach
of that contract. . . . While Defendants are correct that Plaintiff has no
standing to challenge a violation of the PSA or improper securitization,
this is a mischaracterization of his claims. . . . Plaintiff alleges that
Defendants fraudulently assigned his Deed of Trust to themselves in
13
14
Inc. (Bk. D. N.J. 2010) 440 B.R. 624, 629-630, 634 ) (bank bought note and mortgage
as trustee under pooling and servicing agreement but never possessed the note; neither
bank nor its servicer allowed to enforce the note); Deutsche Bank National Trust Co.
v. Ramotar (Sup. Ct. N.Y. 2011) 2011 WL 66041 (allegations of robosigning and
other concerns about banks standing were sufficient to raise triable issues of fact
precluding summary judgment in favor of bank suing to foreclose on Ramotar home);
Bayview Loan Servicing, LLC v. Nelson (Ill. Ct. App. 2008) 382 Ill.App.3d 1184,
1188 (summary judgment in favor of foreclosing entity where there was no evidence
it ever obtained any legal interest in the subject property).
New York law governs the mortgage securitization trust which purports to own
Ms. Yvanovas mortgage (PSA, 201(c) and 10.03), as it governs most such trusts.
A New York state court decision that clearly explains the applicable legal principles is
Erobobo, supra, which we commend to the Court.
ownership of a mortgage note sued to foreclose and the homeowner answered with a
general denial. When the trust sought summary judgment, the homeowner alleged
that the trust had failed to acquire the note by the closing date as required by the PSA,
instead receiving a putative assignment of the note some eighteen months later.
Alternatively, the homeowner asserted the putative note transfer was invalid because
it was assigned directly to the REMIC rather than through an intermediary as required
by the PSA. The New York trial court held that if either defense were established, the
putative transfer of the note to the trust would be void under New York Trust Law
which provides that every sale, conveyance or other act of the trustee in
contravention of the trust is void. Id., 2013 N.Y. Slip. Op. 50675(U) at p. 12, citing
EPTL 7-2.4. Note that New York state court has ever overruled or criticized the
holding of Erobobo.
As in this case, the complaint in Naranjo, supra, relied in part on the
defendants failures to perfect assignments of the mortgage in the time and manner
required by a PSA. Defendants moved to dismiss under Fed.R.Civ.Proc. 12(b)(6).
15
The district court denied the motion, allowing Naranjo to proceed on her claims for
declaratory relief, improper debt collection, RESPA, unfair business practices, and for
an accounting. See Naranjo, supra at *4-10. The court wrote: The vital allegation
in this case is the assignment of the loan into the WAMU Trust was not completed by
May 30, 2006 as required by the Trust Agreement. This allegation gives rise to a
plausible inference that the subsequent assignment, substitution, and notice of default
and election to sell may also be improper. . . . Id. at *3.
In Javaheri, JP Morgan Chase (Chase) claimed it was entitled to enforce
plaintiffs 2007 WAMU mortgage because it acquired WAMU in September, 2008.
Plaintiff alleged, however, that Chase could not enforce her mortgage because before
Chase acquired WAMU, WAMU had transferred her note to a securitization trust.
There, it became part of, or was subject to, a Loan Pool, a Pooling and Servicing
Agreement, a Collateralized Debt Obligation, an Investment Trust, and/or a Special
Purpose Vehicle. Id. at p. 2. The district court denied Chases motion to dismiss
Javaheris complaint, stating that [c]oupled with Plaintiffs allegation that JPMorgan
never properly recorded its claim of ownership in the Subject Property [], the
abovementioned facts regarding the transfer of Plaintiffs Note prior to JPMorgans
acquisition of WaMus assets raise Plaintiffs right to relief above a speculative
level. Id. at p. 7.
F.
16
specify: (a) the default; (b) the action required to cure the default;
(c) a date, not less than 30 days from the date the notice is given to
Borrower, by which the default must be cured; and (d) that failure
to cure the default on or before the date specified in the notice may
result in acceleration of the sums secured by this Security
Instrument and sale of the Property. The notice shall further inform
Borrower of the right to reinstate after acceleration and the right to
bring a court action to assert the non-existence of a default or any
other defense of Borrower to acceleration and sale. (Bold print in
original; italics and underline added. This page of the DOT appears at
RA, p. 53.)
The crux of plaintiff Yvanovas complaint is that she does not have any
contract with defendants and so does not owe them any money. Defendants are, at
best, officious intermeddlers. Accordingly, this action alleges the non-existence of a
default and is authorized by the DOT.
G.
Courts
Routinely
Allow
Litigants
to
Draw
Factual
17
evidence that it received a valid assignment. There is no black magic by which that
standing is lost simply because the purported transfers were supposed to be effected
by contracts to which the borrower is not a party, and which she has no right to
enforce or attack directly.
H.
1.
can render an attempted assignment of a mortgage note or trust deed void. Cases
arising from the current mortgage crisis most often involve problems with
indorsements to the note. Either one or more of the required indorsements is missing,
18
A transfer that is
fraudulent per se cannot be ratified, and therefore is void rather than merely voidable.
Moreover, under New York law as interpreted by New York state courts,
failure to endorse a mortgage note in accordance with a securitization trusts PSA
renders void any putative transfer of the note to the trust. See Erobobo, supra.
2.
a.
19
b.
The holdings of Creative Ventures, LLC and Pribus are based on the
Commercial Code. However, Civil Code 2944 makes the Commercial Code
inapplicable to obligations governed by Civil Code 2920-2967. These sections of
the Civil Code govern real property mortgages and include the HBR.
Civil Code 2944 provides:
None of the provisions of this chapter [Title 14, Liens, Chapt. 2,
Mortgages, Civil Code 2920-2967] applies to any transaction or
security interest governed by the Commercial Code, except to the extent
made applicable by reason of an election made by the secured party
pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of
Section 9604 of the Commercial Code.
(Commercial Code 9604(a)(1)(b) concerns obligations secured by a
combination of personal and real property.)
Nevertheless, courts may look to the Commercial Code for guidance in
analogous situations. See, e.g., Pollard v. Sax and Yolles Dev. Co. (1974) 12 Cal.3d
374, 380.
6
20
is not entitled to enforce it against the borrower.7 Thus in Adams, supra, the court
denied enforcement of a mortgage note to a transferee to whom it was not validly
indorsed. See discussion of Adams, infra. With respect to indorsement, a mortgage
note is similar to a third-party check, which the paying bank can only honor if it is
presented by a third party to whom the check has been validly indorsed.
In Creative Ventures, LLC, supra, 195 Cal.App.4th at p. 1446, the court
addressed the negotiation requirement:
The negotiation requirement may seem a bit formalistic, but it has a
sound historical and mercantile basis. At common law, contracts could
not be transferred so as to give the transferee a right to enforce the
contract directly. The law of negotiable instruments was adopted by the
law merchant as an exception to this rule, in order to allow the indorsee
the right to sue on the contract in his or her own name. (Shaw v.
Railroad Co. (1879) 101 U.S. 557, 563-564, 25 L.Ed. 892.)
It follows that in an action against a putative assignee of a mortgage
challenging its authority to enforce the obligation by demanding payment or through
foreclosure, the assignee must meet the Cockerell standard of clear and positive
evidence that the note was actually and validly negotiated and delivered.
One obvious reason for requiring endorsement of the note is so the note itself
reflects the transfer.
negotiable instruments carry within them the indicia by which their ownership is to
be determined lest their value as a circulating medium [] be largely curtailed, if
not entirely destroyed. Adams, supra, 853 F.2d at pp. 166-169, quoting Haug v.
Riley (1897) 101 Ga. 372, 20 S.E. 44, 46. It also helps ensure that mortgagors pay the
168, 169-170; see also Roger Bernhardt, California Mortgages and Deeds of Trust,
and Foreclosure Litigation, 1.26 (4th ed. 2009).
7
21
party to whom the obligation is owed, while also ensuring they do not payor worse,
lose their property topersons not entitled to receive payment on the note or
otherwise enforce it and the accompanying security agreement. Cockerell; Adams;
Pribus, supra.
Failure to validly endorse the note is no mere technicality that courts can
dispense with in order to force the mortgagor to pay the putative purchaser. In
Adams, for example, plaintiffs executed various promissory notes governed by Article
3 of New Jerseys U.C.C. in favor of Madison Partnerships. After a series of transfers
in 1984 and 1985, Empire of America Federal Savings Bank (Empire) bought 418
of the notes for approximately $45.1 million.
22
23
Both Adams and Pribus involved endorsements that were defective because
they were not properly attached to mortgage notes, but there are other types of defects
that commonly arise. These include but are not necessarily limited to forged or
otherwise unauthorized indorsements; indorsements executed without a valid written
authorization of the indorsing entity; and indorsements executed after the indorsing
entity ceases to exist or do business.
Adams and Pribus clearly demonstrate that a transferee in possession of a note
lacking a valid indorsement cannot enforce the obligation against the original
borrower. Instead, its remedy is against the commercial parties responsible for the
missing or defective indorsement.8
V.
negotiation of the note before one in respondents position can enforce the
accompanying security agreement. Yet, respondents Answer Brief is utterly silent on
these issues. Respondents therefore should be deemed to concede the point.
VI.
CONCLUSION
The question of standing here is simple. A mortgage is a contract. It requires
the mortgagor to pay her lender or its successor. When an effort to transfer the note
and trust deed to a successor is void, the putative transferee does not become the
lenders successor and has no right to enforce the obligation by demanding payment,
As between the endorser and the assignee, the endorser bears the risk of
claims by someone not in the apparent chain of title . . . . 4 W. Hawkland & L.
Lawrence, cited in Adams, supra. Notes typically contain provisions allowing the
assignee to sue the endorser if there is a failure to validly transfer the instrument.
Where a mortgage is securitized, the pooling and servicing agreement also typically
contains an indemnification and repurchase provisions pursuant to which the assignee
may obtain relief from its assignor.
24
let alone by foreclosing on the real property securing the note. The putative transferee
is a stranger to the mortgage contract.
The mortgagor suffers an injury in fact where such a stranger takes or attempts
to take the mortgagors property. The injury is concrete and particularized; actual or
imminent (rather than conjectural or hypothetical); fairly traceable to the challenged
action of the defendant; and (4) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. The fact the note can be validly
transferred does not mean every attempted transfer is perfected, or that the mortgagor
is not damaged where her property is foreclosed upon by an entity that never received
a valid transfer. To allow foreclosures by entities to whom the mortgagor has no
contractual obligation sanctions theftand not just ordinary theft, but theft of
peoples homes.
The Court of Appeals decision in this case directly contravenes established
principles of California mortgage law, both ancient and recent.
By
It is untethered from
25
Allowing borrowers to sue when they allege facts which, if true, prove an
imposter is trying to enforce their mortgage through collection or foreclosure upholds
the public policy of this State requiring that borrowers pay the right party. This policy
is especially important in an era when tens of millions of mortgages are transferred
multiple times in the secondary market.
Mark F. Didak
_________________________________
MARK F. DIDAK
Attorneys for Amicus Curiae
26
of record for amicus curiae. The facts stated herein are known to me personally, and
if called as a witness I would competently testify thereto. I make this declaration
under Rule 8.204(c)(1), California Rules of Court.
2.
I certify that this brief was produced on computer and does not exceed
14,000 words, including footnotes. According to the Word program used to produce
this brief, the word count is 8,154, not including this certificate, the certificate
regarding interested entities and persons, tables of contents and authorities, proof of
service, cover, the date and signature blocks, and forward-slashes.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct. Executed this 15th day of April, 2015 at Los
Angeles, California.
Mark F. Didak
________________________________
MARK F. DIDAK
27
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am an attorney licensed to practice law in all courts in the State of California.
I am over the age of 18 years; my business address is 520 Burnside Ave., No. 9J, Los
Angeles, CA 90036. On April 16, 2015, I served the document(s) described as
Petition for Leave to File Brief of Amicus Curiae; Brief of Amicus Curiae on the
interested party(ies) in this action as follows:
28
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct. Executed on April 16, 2012, at Los Angeles,
California.
Mark F. Didak
MARK F. DIDAK
29