under the deed of trust;” and 2)
borrowers who allege,
with specific facts
, that the foreclosing entity was not the true beneficiary.
Borrowers in the first category rarely make it past the pleading stage,but borrowers in the second group may. In other words, it is not
enough to say “X is not the true beneficiary,” but it may be enough toallege “X is not the true beneficiary
Y.” If “Y” is a specific,
factual allegation that shows the foreclosing entity did not have theauthority to foreclose, then the claim is viable.The court then explained that
basis for claiming that a
foreclosing party did not hold the deed of trust”
is if the assignmentpurportedly giving that party foreclosing power is void.
The court did
not say that attacking a beneficiary’s
assignment is the
way tobring a wrongful foreclosure claim, only that this particular defect,when alleged with specific facts, is enough to put the authority toforeclose at issue. Glaski alleged that the assignment of his deed of trust and note to the WaMu Securitized Trust was void
the trust’s closing date
Standing: Void vs. Voidable Assignment
Many securitization-based wrongful foreclosure claims fail becausethe borrowers do not have
to challenge how their loan wassecuritized.
court framed this issue simply, focusing on theassignment
: “When a borrower asserts an assignment was ineffective,a question often arises about the borrower’s standing to challenge the
assignment of the loan (note and deed of trust)
an assignment towh
ich the borrower is not a party.”
The court cites federal cases from
Glaski v. Bank of Am., N.A., 218 Cal. App. 4th 1079, 160 Cal. Rptr. 3d 449, 460(2013).
, 160 Cal. Rptr. 3d at 461 (emphasis added).
, Rodenhurst v. Bank of Am., 773 F. Supp. 2d 886, 898-99 (D. Haw. 2011)
(“[C]ourts have uniformly rejected the argument that securitization of a mortgageloan provides the mortgagor a cause of action.”
); Junger v. Bank of Am., N.A., 2012WL 603262, at *3 (C.D. Cal. Feb. 24, 2012
laintiff lacks standing to challengethe process by which his mortgage was (or was not) securitized because he is not aparty to the PSA
.”); Bascos v. Fed. Home Loan Mortg
. Corp., 2011 WL 3157063, at *6
(C.D. Cal. July 22, 2011) (“Plaintiff has no standing to challenge the validity of thesecuritization of the loan as he is not an investor in of the loan trust.”).
, 160 Cal. Rptr. 3d at 461.