Jonathan D. Fink, Esq.
UTA has submitted an amicus brief in the case of Yvanova v. New Century Mortgage Corporation. The brief was drafted and filed by Jonathan D. Fink, Esq., Wright Finlay & Zak, on behalf of UTA. The case involves the question of whether a borrower has standing to challenge the right to foreclose based on claimed defects in the securitization process and the assignment of the deed of trust.
The amicus brief asserts that it would be contrary to law and public policy to allow a borrower, as a non-party to the securitization and assignment, to attack those agreements. The principal points discussed are:
- Allowing borrowers standing would upset the careful balance crafted by the Legislature in enacting the non-judicial foreclosure laws and any change in that balance should come from the Legislature not the Courts;
- The typical “defects” claimed by borrowers would, even if true, merely render the transaction voidable, not void;
- Only parties to the agreements have the right to avoid a transaction that is merely voidable;
- The challenged transactions do not result in any prejudice to the borrowers; and
- Allowing borrowers standing to challenge the securitization and assignment would create considerable additional expense and uncertainty and have potentially damaging effects on the economy.”