Today, the Supreme Court of California issued a decision in the matter of Yvanova v. New Century Mortgage, reciting the reasoning applied by the First Circuit U.S. Federal Court of Appeals that a homeowner does have a right to challenge a “Void Assignment”.
If you are a homeowner disputing your mortgage as being a false claim against property of a “Trust” entity that was created to function as a “Real Estate Mortgage Investment Conduit (REMIC)” governed by Internal Revenue Code requiring a TRUE SALE of only qualified mortgage loans (not in default) within 90 days of a designated closing date. That closing date is typically set forth within Section 2.01 of the binding Pooling and Servicing Agreement (PSA) registered with the SEC.
Within the PSA (Pooling and Servicing Agreement) it sets forth the governing law for the trust entity which is typically New York trust law in many cases, which renders “any” act in contravention of the PSA, VOID (NOT VOIDABLE). Because the “Assignment of Mortgage” instruments, often related to foreclosure actions cases are dated way beyond the actual “closing dates” set forth in the trust’s PSA, thus those “Assignments” are VOID as a matter of law.
In direct contravention to the California Supreme Court’s ruling and the U.S. Court of Appeals for the First Circuit, the U.S. District Court of New Jersey Chief Judge Jerome B. Simandle ruled oppositely in ROGERS V. MORRICE. Judge Simandle stated:
“All state-law claims against Phelan Hallinan & Schmeig, PC, and Phelan Hallinan & Schmeig, LLP, as well as the Phelan attorneys and employees must be dismissed because (1) the New Jersey litigation privilege applies and (2) Plaintiff cannot challenge the validity of assignments transferring Plaintiff’s mortgages from one holder to another. The only other specific allegations of wrongdoing against the Phelan law firms, attorneys or employees are against Defendants Judith T. Romano and Eugene Jaskiewicz, both Phelan employees, or unnamed employees.2 Plaintiff alleges that Defendant Romano “civil aided and abetted the fraudulent concealment by executing the assignment of complainant’s mortgage note to the trust,” which was recorded in the Burlington County Clerk’s office on July 29, 2009. (Am. Compl. ¶¶ 107, 129, 134, 139.) Plaintiff asserts that Defendant Jaskiewicz was “the notary who attested to this mortgage assignment . . . .” (Id. ¶¶ 107, 129.) To the extent Plaintiff seeks to challenge the assignment as fraudulent, Third Circuit case law bars such a claim. See Giles, 2012 WL 4506294, at *20 (“Plaintiffs may not, therefore, challenge any assignments to which they were not a party”); Ifert v. Miller, 138 B.R. 159, 163, 166 (E.D. Pa. 1992), aff’d, 981 F.2d 1247 (3d Cir. 1992). 2. Plaintiff asserts, for instance, that the law firm sent her correspondence demanding payment, and Plaintiff asserts that “PHS falsely declared [Defendant] Litton as the “Noteholder” and the “lender” despite BANA being proclaimed the “Noteholder” and Litton the “servicer[.]” (Am. Compl. ¶¶ 138-39.)”
Interesting thing about Judge Simandle’s ruling is that, the Giles case did not go to third Circuit, but according to Judge Siamandle: “To the extent Plaintiff seeks to challenge the assignment as fraudulent, Third Circuit case law bars such a claim. See Giles, 2012 WL 4506294, at *20″, Judge Simandle himself presided over the Giles case in the District Court and never provided a Third Circuit case supporting the above decisions in Rogers… Several attorneys in New Jersey have been running the Giles and Rogers decisions as to Assignments of Mortgages in the ground in effort to steal homes through foreclosure actions premised on Bogus Assignments of Mortgage.
The defense attorneys cited a Third Circuit case IFERT V. MILLER, (E.D.PA. 1992) that did not pertain to Assignments of Mortgages. It is obvious Simandle accepted this case to support his decision, disregarding that it did not have anything to do with Assignments of Mortgages. The case specifically dealt with an assignment of proceeds from a contract: “On June 14, 1988, Miller, as President of Devault Equipment Company, Inc., assigned all proceeds from the contract with Summit to “account number 1501253 at the Berks County Bank”. A copy of this assignment, known as Exhibit 7, is attached to this Opinion as Appendix “A”.”Exhibit 7 states: “that monies due or to become due under this purchase order described above have been assigned to Account Number 15015253 at the Berks County Bank.” Therefore, Exhibit 7 is an effective assignment.If a factfinder should hear such claims, it cannot be on the motion of Summit. It must be on the motion of Devault, for Summit cannot raise a challenge to a contract in which it was not a party and out of which it retained no rights, even if the challenge is based on a right that a party to the contract could raise.”
Homeowners are party to their Mortgages, therefore Simandle abused his discretion because he relied on irrelevant factors.