Robinson v. Countrywide

California Court of Appeals, Fourth District, Second Division - Sustaining Demurrer without leave to amend for failure to state claim against MERS and Countrywide

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The California Court of Appeals held: "We agree with the Gomes court [Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 (Gomes), review denied May 18, 2011] that the statutory scheme (§§ 2924-2924k) does not provide for a preemptive suit challenging standing (citation added)."

More important for the practitioner in this area of the law, the Court of Appeals directed the reader to the leading authority on California Mortgages, Deeds of Trust and Foreclosure Litigation, wherein footnote 5 it is stated: "This does not mean that a borrower who believes that the foreclosing entity lacks standing to do so is without a remedy. The borrower can seek to enjoin the trustee?s sale or to set the sale aside. (See generally Bernhardt, Cal. Mortgages, Deeds of Trust, and Foreclosure Litigation (Cont.Ed.Bar 4th ed. 2009) §§ 7.23-7.31, pp. 538.2-538.11, pp. 538.2-538.11.)."

The CEB Treatise, which is available at http://ceb.com/info/BankruptcyResources.asp, provides a guidepost for how to properly document the strategy leading up to a properly drafted complaint to enjoin or set aside a foreclosure sale. Forthcoming updates will address this case and recent case law and strategies that are invaluable in today's foreclosure litigation battlefield.

Louis J. Esbin is a contributing author to learned treatise on California Mortgage, Deed of Trust and Foreclosure Litigation, and in particular the Treatise's Chapter 7 on Debtor Strategies.

Robinson v. Countrywide may be found at http://www.metnews.com/sos.cgi?0911%2FE052011.

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Published In: Civil Procedure Updates, Civil Remedies Updates, Consumer Protection Updates, Finance & Banking Updates, Residential Real Estate Updates

Reference Info:Decision | State, 9th Circuit, California | United States