CA Appelate Decision: Damage Claims Against OneWest Goes to Jury, Summary Judgment reversed

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see CA Appeals OrderReversesMSJ

This case allows the jury to hear claims against OneWest for fraud, negligent misrepresentation, concealment, promissory estoppel, negligence, wrongful foreclosure, and violation of CA Business and Professional Code.

Here is an example of the obvious: a Judge takes no risk in denying a motion for summary judgment. It is only when the Judge grants summary judgment that there is a risk of reversal. With the current judicial climate changing in favor of borrowers, [including findings that the mortgage was absolutely void (invalid, non-perfected) where a sham nominee like MERS was used], Judges should take note that they are better off getting in front of the new trend and allow borrowers’ claims to be heard in a fair manner, observing the requirements of due process.

If the Banks collapse because they created 100 million invalid mortgages, that is not a problem for the Judge. And, as I have said many times here, there are 7,000 banks and credit unions that can take up whatever falls out of the mega banks as a result of investors and regulators realizing that the mortgages are void, the assets on bank balance sheets don’t exist or are far overvalued, and the liability section of the bank balance sheet is far understated as a result of damage claims like the one featured in this article.

As noted earlier on these pages, the threshold legal question has been reversed. The question now is what difference does it make if the borrower is in default if the foreclosing party had no right to foreclose?  The previous question that I heard hundreds of times from the Judges themselves was incorrect from the beginning. Their question was what difference does it make if the loan was securitized, as long as the borrower is in default? And that is where the dissenting justice in this case also got it wrong. He is still assuming that these loan transactions were in fact consummated as reflected in the alleged loan documents. The underlying assumption of the dissenting judge is obvious: that the loan contracts were fundamentally valid and whatever defects existed could be corrected before or even during foreclosure. NOT TRUE!

Here in this case is an example of how judges are now perceiving the entire loan transaction instead of just the claim of a default. And the result is that this California appellate court decided to let the case go to trial and allow a jury to hear the claims against OneWest, whose behavior was predatory from the start of when they acquired IndyMac business in 2008-2009.

The appellate court reversed the trial judge who had granted Summary Judgment for OneWest — a little plaything organized over a weekend by some of the richest people in the country. On a net basis they paid nothing and made a ton of money off of loss sharing and guarantee payments from the FDIC and and the GSE’s respectively. They also foreclosed on thousands of homes in cases where they had no interest in the loan and no right to foreclose, collect or do anything else with respect to the loan.

The hidden issue here is whether the Judge, having been reversed, will now allow the homeowner’s attorney to probe deep into the dealings of OneWest during discovery. I suspect that the trial judge will allow more liberal discovery after being reversed. And if that happens you might not never hear about this case again — as it joins the tens of thousands of cases that have been settled under seal of confidentiality. Essentially the strategy of the banks is that if they lose, they can always pay off the homeowner to keep the case from being publicized.

49 Responses

  1. I can only add: the folks early on I have been in contact with and continue those relationships. They have been intelligent, patient and
    forthcoming with solid legal analysis/information. Some have gotten cash settlements, damages in smaller increments. Others (only 3 I know of) are still in their homes 7 years in, with no payments, which I consider a win….diminishing returns for the shrills and cash to move forward.

    And as Deborah stated: information is the key, no one I know of especially here (the one’s demanding how to follow their lead), have had grand success or a windfall, by any means. The more you dig, the more you find! It’s up to each and everyone of us to follow our own trail of deceit. The contract is the beginning of all of the fraud, deception and the breach of many of the terms we all agreed to. Just what is it we agreed to and how did they manipulate those terms to deceive us, is my question and as always follow the money.

    Toad Opinion…..

  2. Yes wow trespass like william Black says the more you dig the more you find and and as matt Tiabbi describes the wall street banking system as a giant vampire squid.

  3. found this in the comment section while listening to Bill Still.
    there was interesting comment

    Trespass Unwanted, Creator, Corporeal, People, Life, Free, Independent, State, In Jure Proprio, Jure Divino

  4. I will defend my right to blogg on here unless Neil Garfield either asks me not to or kicks me off. The rub is It was a starting point for me and im not sorry. I thought we bounce ideas and debate ( emphasis added- Debate and then do further research, Neil says not to rely ) which sparks ideas on points that may help our Individual case scenarios and postures – those of us in Court know after many years what we are up against – and i hate to use the phrase but why not – make no mistake about that Christine, i dont give a rats botty that you think lowly of this site and have decided for the whole universe that it doesn’t work, according to you and a few others – but it works for me, in some way or i would not come here so could ya lay off, being that i will take all the help i can get – but- ill check it out and ill go deeper because the devil is truely in those details so – heres the hubris in my humble opinion, based on my personal experience and knowledge – nothing is ever what it seems, lately, and that i hope to share to help someone in some way no matter how small. Christine why not just point by point critique instead of the unsubstantiated banter and batter technique you keep practising – though you are good at it, you have tenacity and thats telling, anyone else if they felt that strongly i really think they would go elsewhere to contribute by now. Do you have a website to recommend ? Or are they all wrong too. Like ive told you before if you truely want to help, your means and methods are counter productive ( IMHO). My father tried to teach me that if you cant say anything nice dont say anything at all, i fail at that myself at times because opinion and emotionally charged stuff such as this subject matter where folks lost everything they had ever worked for and then some, but anyhoo, thats all i have to say bout that. Its late.
    Forest gump out.

  5. Oh, and NPV..

    Questioning standing is a given in CONTRACT. Questioning is the key. How do people get there? By pleading the proper cause(s) of action from the get go. You want judges to be receptive? Simple. “Where did my money go and why should I pay more?” Who pocketed and on what grounds? Garfield tells stories. People retell them with no evidence whatsoever and never ask the questions. Nobody gets to discovery by TELLING. People get to discovery by ASKING. Pro se Garfield makes money from jump on his Gospel and tell, no relevant evidence provided. They never question. They just regurgitate stupidly and Oh! I lost! Garfield was right. Judges are sold out, biased, bought, paid for and corrupted. I must EDUCATE the judge. From a peon with no legal education (or an attorney with no trial experience) to a judge… Hubris combined with stupidity are fascinating. One thing should tip people off: state judges are elected( by you. On what basis?) Federal judges are appointed. There are rulings that help and rulings that don’t. Garfield single handedly created the largest number of those that don’t work. Know how? 7 or 8 years into LL, he’s never taught people to ask anything. Go back to his QWR template: dismal. Garfield told stories.

    You lead by example. Tell me again: how many cases has he tried? Won?

  6. Awesome Case!
    Great Attorney!

    Excellent analysis of the case Christine!

  7. WE should have won on a Summary Judgment. Illegal foreclosure on Invalid Loan and Unethical Judge

  8. Consider then your state Law on statute of limitations keep in mind

  9. As usual, I get a real kick when people, who did everything that doesn’t work and got the expected result there from, go on the personal attack because they didn’t have a clue then and still don’t. I don’t care how complicated you want to make your life: it’s yours. Live it as you wish. One thing is sure: for what homeowners are concerned, it’s a contract issue and nothing more. Then again, Garfield doesn’t understand contract and nor do his cult followers. So… the cult will keep on generating losses banks will keep on using against its members. Such goes history…

  10. Actually its a bit different because a fair exchange is no robbery between 2 parties in the whiskey row case, so a guess its not the same , no, definitely, not.

  11. Yeah Poppy theres one called whiskey Row uP in Prescott, a bar a brothel a bar a bothel a bar a br – – same thing.

  12. If memory serves E., chrissy had a “suspension account case”, where those are very different in proof required AND “generally” involve escrow issues. It is very easy, in comparison to most others here.

    The rantings and ramblings here from those to can absorb information, but know not how to utilize that same information to plead, motion, or procedurally pass the logistics of the legal system, are legally handicapped – unqualified to judge what anyone else’s case involves, IMHO.

    Many of the judges are too biased, some unqualified to rule and plain have conflicts of interest. One of my most illuminating experiences: rolling into Wilmington, DE….to the bankruptcy court for New Century. The city, small and somewhat quaint in appearance; towering over the city, diminishing it like a bad b-movie of godzilla, are the multitude of large banking facilities, over-looking the mini-shops, storefronts and court house…controlling the massive wealth over Trillions of dollars, from hard-working trolls (their opinion, not mine) who diligently drive back and forth to work each day, only to be lied to, cheated and thrust into their system of “wealth distribution, to be sold as indentured slaves to the highest bidder. Slavery has just changed color, not tenure or benefactor. A single lined street called Lawyers Row: Ha, Ha, Ha, can’t help but giggle, try to find representation on that street. Then beyond that row, find most of the poor. People of brown skin, with an attitude that rivals the 1800’s, toward whites. The glaring disparity is nauseating, IMO.

    The court is filled with seasoned legal eagles with pedigrees. They roll in from NYC, Philly, DC and the likes, to move cash from the indebted corporations, to the law firms, each defending the “hearsay” evidence (CD’s made from the books and records, created by the corporate shrills), with absolutely no verification, diligence or concern, as the entire game, which it is, is played out to move assets (temporarily) and enrich the law firms…if you happen to miss that, you are in a coma OR a moron.

    What many of us are experiencing is the end-game, that has been glossed over multiple times to deceive, even the most sophisticated gamer. And lest not forget “precedent” is and can be created, that’s how it became a precedent. A slick lawyer came on board and actually know the law and how to utilize the “legal language”, rules, etc…to modify the old case law, statute to apply it to current applications, situations…broaden the meaning and language.

    In the end, the law is an evolving entity, subject to change and be re-interpreted. No one here should quit or follow the same path. The tide is turning. And following blindly creates a system of trolls, not thinkers and doers. True leadership is a mix of submission AND pushing forward when the enemy target is visible, vulnerable and attainable.

    Non-lawyer here, just a toad opinion.

  13. Yes NVP. Didn’t I make that clear?

    I can’t shake this image I have of him…. greeting people at the door of his foreclosure seminar saying, “Hi, kam’raden, glad you could come. Goose step this way.” Leg flung high and straight as a board, outstretched hand snapping his chest as he parades into the tiny walled off Ramada conference room the size of a large broom closet. Es zittern die morschen Knochen screeches from an old Zune player.

    I think I’ll work on that photo of him in photoshop this weekend and turn that baseball cap into one of those old German black metal WWI dress uniform helmets with the shiny brass spear on top. It seems more fitting. Monty Pythonish, which goes perfectly with his world views.

  14. E tolle, just what are you trying to say, Baseball cap Bob will be the photo for the new site?

  15. Why let facts get in the way of a really strong narcissus streak? Christine believes wholeheartedly in dinging the banks and then reaffirming the relationship. Instead of the old show-me-the-note routine, it’s the I-got-mine-screw-you strategy. How cool is that? She and her brethren like to say….why borrower, why? Why put up a fight? You’ll only lose, don’t you see? It’s hopeless! Why struggle, when you can pay for a mortgage consultation from certified whackos? Just call:

    Certified Mortgage Whackos, Reston, VA 1-800-NutjobsRus

    Rock….really smart? You pulla’ on my long leg? Rock’s the one that refuted SCOTUS in Jesinoski with a 2009 lower court case. Go figure. It may be rocket science, but youtube is filled with clips of rockets exploding on the launchpad. That’s Rock. That’s Mr. Rock Mers to us lowly borrowers. His head explodes every time he has a thought, the last one being last February.

    Bob Hurt smart? If he’s anything, he’s an idiot savant, because yeah, he can write well enough to convince a room full of monkeys that he just might be onto something, but the adjacent room full of three toed sloths will see right through his lunacy. I quote Hurt (a.k.a his quote hurts):

    “People worry too much about possible negative consequences of eugenics programs. I consider them essentially good for society and for innocent children for a variety of reasons. I believe the states should implement them by requiring sterilization of all welfare recipients until 5 years of self-sufficiency. Yes, fewer Negroes will experience birth, and so will fewer Caucasians, Mexicans, and Heinz-fifty-sevens. But the world will become a better place with far less poverty, crime, and welfare abuse.

    And that will be a good thing.”

    Bob used to run a foreclosure defense seminar, where he listed the pricing as $XX for you, and a discount for your wife. Does that bother anyone besides me?

    I think Bob, and the planet in general, would benefit greatly from a euthanasia program. But who will be the first contestant?

    Hey! What about Bob?

  16. As for that last sentence it reminds of a line in one if my fav movies french kiss ” all you bas*%#}{ know each other”

  17. NPV please post links to the info this would be most helpful. Thanks.

  18. Christine, you are wrong. The press releases circulated by the FDIC and Steve Mnuchin are pure propaganda. Many homeowners would benefit by reading about this entire transaction.

    It did not occur as they would have the folks believe. Many defendants have had success against OWB when the Silo Structure is properly explained to the Court.

    Just like BANA did not merge with CWB, and WAMU was not succeeded by Chase, etc.. The real facts lie in the SPE set up in between each of these transactions.

    Unlike the traditional securitization scheme, almost 13 billion in loans that INDY could not get off their warehouse line were switched to held to maturity and placed into a special purpose entity, which is responsible for paying back the FHLB of San Francisco advance, which is collateralized by those loans and the actual deposit accounts. held at OneWest.

    Go read about the asset contribution agreement made to IndyMac Venture, LLC. Read about OneWest Ventures and IMB Holdco.

    At a minimum, you will see that you know very little about these transactions. It is one thing to provide paralegal services, but if you have no banking experience – your comments appear to be just promoting a specific product or program, kinda like the consumer defense guy.

    Now, you know that I already now how intelligent you are, and i know how smart Rock and Bob are. Answer one question… How the hell did Mortgage Fraud Examiners end up with the same physical address as MERS Corp?

  19. As for the dissenting judge in this case, Terry B. O’Rourke, his hometown paper provides this insight –

  20. @Christine – You continue to ignore the implications of the recent 6th Dist CA where the borrower was allowed to question the chain of title as result of revision of the Livonia decision. This comes back to legal basics; questions of law (standing as a party) must be resolved before questions of equity (foreclosure). This indirectly ties to your point about the contract in that if an entity is not a party to the contract the court has no jurisdiction to consider their claims, let alone award them equitable damages (trustee sale).

  21. NPV,

    Once again, what happened with IndyMac and OneWest, under the auspices of FDIC IS NOT RELEVANT to homeowners. The ONLY thing they have at their disposal is to attack the contract. If FDIC transferred “some” assets and “some” liabilities, until the courts start demanding that banks prove your loan/house was part of those transferred “assets”, it is completely irrelevant. Knowing the mechanics of what was done does not render them RELEVANT to homeowners’ cases. Forcing the issue has not boded well for homeowners. Why keep on betting on the losing horse when several other ones have entered the race and won?

    Hence the hundreds of thousands of cases homeowners lost for having pleaded everything and anything.

  22. Second, when you sit down and actually read the agreements – you will see the the Conservator Bank, IndyMac Federal Bank, FSB did not succeed the failed Indy, it merely purchased some of the assets and retained some of the liabilities, i.e the warehouse line owed to the FHLB of San Franciso, which was the entity that allowed Indy to saty open 14 months longer than the the private markets anticipated…

  23. Christine, OneWest Bank, FSB did not agree to become the successor to IndyMac Bank, FSB. That is entirely inaccurate. If you really want to know what happened – plug in – Indymac Venture, LLC, that is the entity at the middle of the silo…

  24. Ian,

    For what the appeal is concerned, it is strictly a contract issue. Whatever happened to IndyMac and FDIC intervention, the only issue relevant to Banayan is one of… CONTACT. Period.

  25. If you have that letter from FDIC clearly stating that OneWest was NOT the successor “in interest”, and you lost your house afterwards, in a OneWest initiated foreclosure, I would send that asap to Bob Hurt who offered to help you. Have you contacted him? The man has contacts. And he asks for nothing.

  26. David belanger-
    When debt is “written off” it is both a charge against earnings ( on the income statement), and is “zeroed out” on the balance sheet. Assets always = liabilities. If the mortgage fails to deliver as an asset (producing profit) then it is written off after a certain period of time. Not only has the debt become unenforceable, the bank was only holding 5-6% of the debt in the form of Tier 1 capital.
    The rest, as you know, is just vapor

  27. Reblogged this on littlefolksblog and commented:
    Follow the bouncing bundles of MBS.

  28. Michael keen
    You see how onewest treated the borrower in this case, they wanted the property and all the fruits of his labor.

  29. GMAC ResCap – Wikipedia, the free encyclopedia
    Its subsidiaries include GMAC Mortgage and online home lender Ditech. … after wiping $22 billion in mortgages off its books in 2009, 2010 and 2011. … the mortgage business to focus on its profitable auto loan and direct banking business.
    Ally Financial – Wikipedia, the free encyclopedia
    In 1985, GMAC formed GMAC Mortgage after it acquired the mortgage loan operations … mortgage unit, after the unit’s loan write-downs of around half a billion dollars … ResCap had written off $22 billion in mortgages in 2009, 2010, and 2011 .

    so the question is this, prior to going into bk in 2012, they charged off 22 BILLION IN MORTGAGES.


  30. @ Deborah wynn,

    You are spot-on: “The word distressed debt and default swaps come to mind”.

    I respect Mr. Garfield if for no other reason than his persistence.

    At the same time, I will only agree that, “…the threshold legal question has been reversed…”, when the derivatives are the focus of distressed property proceedings.

    In other words, it is not about a “free house” for those of us victimized by any number of fraudulent behaviors. It is about Justice and the fact We want our lives and property back.

    Conversely, while the criminal bankers are helping themselves to “free houses”, they couldn’t care less. After all, once the victims have been utterly displaced and utterly destroyed, the banks allow the houses to rocket into disrepair and misuse as so many blights on so many…
    What used to be middle class neighborhoods.

    The question then becomes: “why not modify; why not treat people with decency”?

    The answer is that the foreclosure must go forward in order for the criminals to collect on the frauds that are the derivatives (AKA “Credit Default Swaps”).

    Thereafter, the house is merely the vehicle employed to conceal the crimes once the title is laundered and the paperwork is destroyed.

  31. I’ll say this – they are not in court.

  32. Ian
    Who took the loss who was harmed

  33. Deb/christine- the indymac ongoing fraud started w “holdco”. The interim takeover/acquisition vehicle in the indymac/onewest bonanza.(for the consortium which acquired “certain of their assets, and none of their liabilities”. This was a “shared loss” arrangemt wherein the FDIC took the hit, and Onewest took the profits.
    Iwanfmynpv laid this out couple years ago.

  34. Next question how were THEY harmed

  35. The word distressed debt and default swaps come to mind

  36. See you cant speculate – you must look to the FACTS

  37. I have a letter from the fdic that states categorically that one west was NOT the successor in interest
    This us a misconception of many :quote “you have been dealing with onewest bank in connection with the servicing of the loan unquote ( see word servicing), quote ” That is consistent with the fact that servicing rights ( ie right to service) indymac residential real estate loans were aquired by onewest bank; more about this below. I do want to clarify fir you that although you refer to ” indymac bank fsb, the latrer is not the successor of the former. As explained below, onewest aquired certain assets, including servicing rights to losns, that were innthe indymac receivership, but does not make onewest bank the successor- in – interest to indymac” UNQUOTE
    Now does that not cast new light on the situation and why i trued to get mire info under FOIA and why i was Stonewalled and why nada from IRS re that 1099a that categorically must be issued by the LENDER.
    Do your homework do you research before you go into court with all kinds of accusations. Your case is not mine so may not even be pertinent just sharing info.

    Not a lawyer just trying to help.

  38. Im referring to liabilities Christine – one west are liable though for what they did after FDIC sold ” certain assets,” ( in my case regarding the asset being servicing rights, but in this present case they were lender) just wanted to make that distinction.

  39. Deb,

    If it had, OneWest would not have had any legal claim to any money from Banayan. FDIC transferred the entire contractual relationship, including all obligations owed by either party under the contract.

    OneWest appears to have defaulted first, hence the allegations of fraud “The judgment is reversed with respect to Banayan’s claims for promissory fraud, negligent misrepresentation, concealment, promissory estoppel, negligence, wrongful foreclosure and violation of Business and Professions Code section 17200”. And you can bet your boots that, had Babayan owned the property, the MSJ on his QT claim would have been reversed as well.

  40. “The contract was with indymac fdic stepped into their shoes – all liability ends with fdic.”

    No Deb, it doesn’t. FDIC’s intervention does not, in any way, nullify the provisions of the original contract, inasmuch as OneWest agreed to become IndyMac’s successor.

  41. And christine im not trying to discredit your opinion, im making other points.

  42. And the point i took from this “nice” case is one of the fundamental point i make inmy case ( ninth circuit) also being:
    ” a move for summary judgement -( the moving party) has the initial burden of proof to make a prima facie showing there is non existent triable fact”.

  43. Christine
    The contract was with indymac fdic stepped into their shoes – all liability ends with fdic.

  44. B* S* editorial from Garfield, as usual. This is a straightforward case of contract and breaches for all kind of reasons, fraud included. Nothing to do with the transfer of the note WHATSOEVER, nothing to do with MERS.

    “As noted earlier on these pages, the threshold legal question has been reversed. The question now is what difference does it make if the borrower is in default if the foreclosing party had no right to foreclose?” Again, serious B*S*: the threshold legal question has NEVER been reversed and especially not in this case.

    A contract is a contract. As the [arty successor to IndyMac, in the contract, OneWest had a legal obligation to fulfill IndyMac’s obligations and Banayan did not default until after OneWest reneged on its obligations under the CONTRACT.

    Of course Banayan won on appeal! No brainer… And of course what started out as a contract dispute became one of negligence and fraud! A repeated pattern of conduct resulting in non-performance under a contract can only be qualified as negligent or intentional (or both, as is the case here).

    What did Banayan do? Attack the contract!

  45. Darn i wish Liz Warren would run

  46. Exactly michael
    They want VOTES

    JUDITH D. ERICKSON, an unmarried woman,
    and as Trustee of THE ERICKSON FAMILY
    Case No. 3:14-cv-08089-NVW
    (Hearing May 19, 2015 at 1:30 p.m

  48. Deb is right.

    This country is uniquely suited to defy Tyranny; in fact, it is our birthright.

    This is a government of, by and for the People- NOT Corporations.

    Your local court is a corporation and, as such, it is run for profit. Nowadays, that profit is designed to thwart the LAW.

    The conversation is shifting and the issues are of huge consequence.

    We The People must move beyond our comfort zone- this metamorphosis will likely be aided by the fact our collective comfort zones – our homes – have been forcibly removed through criminal behavior and fraud delivered by extortion and the mechanisms of tainted court procedures.

    The Truth will prevail.

    The Truth encompasses the fact that our oppressors have targeted the middle class and our financial sector is a wholly-owned subsidiary of an international, privately-owned banking cartel.

    An election is rapidly approaching.

    Any person attempting to run for any position as an elected official must be made to explain their understanding of the rampant fraud now manifesting as the bloated parasite athwart the international banking system.

    Investigate Wall Street, Prosecute Wall Street, Jail Wall Street. End the Fed and return it as a Public Utility that enriches Public Coffers- NOT Private Pockets.

  49. The judges perception is changing as we see from this case Hang in there for the long haul – and it is, but must be done. our government has done virtually nothing that protects us our only hope in my humble opinion lies in our Courts and that is a huge weight for our judges to carry, they are smart and they KNOW NOW the cost of getting law and its application wrong because of presumption and down right bias. Go forward with god that you know and one day justice will be served, win or loose still fighting or lost you stood up for the things worth fighting for.

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