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New Century filed for bankruptcy in 2007 and transferred its assets into a liquidation trust in 2008.
Notwithstanding that earlier dissolution and transfer, “New Century” executed a purported assignment of Yvanova’s deed of trust on December 19, 2011 to Deutsche Bank National Trust, as trustee for a Morgan Stanley investment trust. The assignment indicates that it was prepared by Ocwen Loan Servicing, LLC, identified as New Century’s attorney in fact, as well as the contact for both the assignor and assignee.
No, the Court did not abrogate the “tender” rule – whereby a borrower must tender the full amount of the loan in order to set aside a wrongful foreclosure. Yvanova must allege tender to state a cause of action for wrongful foreclosure[.]” Nor, as some contend, did the Court “fail to give direction” as to whether an assignment is “void” or merely “voidable.” Unless the alleged defect in the assignment renders the transfer without legal effect, the assignment is merely “voidable,” and not subject to challenge.
The Court specifically stated it was expressing “no opinion as to whether . If anyone ought to harbor concerns about the Court’s decision, it’s those lenders too hidebound in their thinking to appreciate the simple fact that the identity of the actual holder of the debt matters at the time of foreclosure.
The decision represents no real threat to them – as they are already ensuring they are getting what they paid for.
Post-Yvanova, in an almost Darwinian culling of the herd, less-prudent lenders (or those who fail to appreciate that you can pay your lawyers now or you can pay them more later), will find themselves embroiled in litigation that is as expensive as it was avoidable.
In the end, while not particularly “groundbreaking,” this is the only real take-away from the Yvanova decision.
“The borrower owes money not to the world at large,” the Court noted, “but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.” In other words, proving you own the debt is just as important as proving you haven’t been paid.Again, because only the actual holder of a secured loan may foreclose, the Supreme Court held that borrowers, like Yvanova, may challenge assignments of their notes and deeds of trust when the assignments are allegedly void and do not actually convey the beneficial interest in the underlying deed of trust. The casual observer, however, wouldn’t know that from the commentary arising in the decision’s wake.Borrowers, like Yvanova, conversely, may not challenge assignments that, while erroneous in some respect, may be enforced by either the assignee or the assignor – i.e., merely “voidable” assignments. Attorneys for lenders and borrowers alike read too much into the Court’s opinion.The simple fact, however, is that the Court’s decision endangers only a special (and soon-to-be dwindling) class of lenders: Those too lazy, cheap, or sloppy to properly document a simple contractual assignment.In 2006, New Century loaned 3,000 to plaintiff Yvanova, secured by a deed of trust on Yvanova’s Woodland Hills’ home.