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5th Appellate District

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Docket (Register of Actions)

Glaski v. Bank of America, N.A. Case Number F064556 Date Description Notes

03/26/2012 Notice of appeal Atty: Benitez obo applt. Glaski lodged/received. appeals from order held on 11/30/11 03/26/2012 Filing fee. atty: Benitez obo applt. Glaski $655 03/26/2012 Letter to & Mediation Screening counsel - 10 Questionnaire to Atty: Benitez obo days to file case applt. Glaski (forms enclosed) information statement. 03/26/2012 Notice per rule 8.124 - with reporter's transcript. 03/29/2012 Association of attorneys filed for: 04/05/2012 Telephone conversation with: 04/06/2012 Received fax informational copy of: 04/16/2012 Appellant's Questionnaire received. 04/16/2012 Civil case information statement filed. 04/17/2012 Letter sent to: by atty: Benitez obo applt Glaski dated 2/27/12

Richard L. Antognini by atty Benitez obo applt Atty: Barragan secretary; placed mediation questionnaire in today's mail. mediation Questionnaire by atty: Barragan/Respondnet Bank of America (to JAH) for mediation screening by atty: Benitez (JAH) By Atty: Benitez obo applt. Glaski

counsel and Fresno Superior Court; The Court has determined that the above entitled appeal is not suitable for mediation. Pursuant to Court of Appeal, Fifth District, Local Rules, rule 2 (Mediation in Civil Appeals), the suspension of the operation of California Rules of Court, rules 8.121, 8.124 and 8.216 requiring designation of the record on appeal, payment of the estimated costs of preparation of the record on appeal and submission of a proposed briefing schedule is terminated as of this date. You are directed to comply immediately with the

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applicable California Rules of Court. 04/19/2012 Notice to reporter to prepare transcript. 05/01/2012 Received: Sent to ctrr McKennon on 04/19/12

RAF - correction requested - RT by ctrr McKennon, heading on cover sheet not titled as to this court; from superior court clerk. RT with Docket Report

05/01/2012 Record returned to county for corrections. 05/01/2012 Letter sent to counsel re: 05/04/2012 Received corrected transcript. 05/04/2012 Record on appeal filed. 05/04/2012 Received document entitled: 06/12/2012 Received copy of 06/14/2012 Requested extension of time

record correction requested RT by ctrr McKennon (correction not needed) R1/5 pages; letter sent to all parties re aao due in 40 days. Superior Court Custom Docket Query Report (fax copy provided by runner) application for extension of time to file brief submitted by Antognini obo applt

Appellant's appendix and opening brief filed. Requested for 08/13/2012 By 61 Day(s) 1st req, 60 days. to PJ

06/15/2012 Granted extension of time.

Appellant's appendix and opening brief filed. Due on 08/13/2012 By 61 Day(s) 1st req, 60 days OK BY PJ, no further etc. to extend time file aao; to PJ for approval stipulation to extend time to file aob by atty Antognini

08/13/2012 Stipulation filed to: 08/13/2012 Received copy of 08/14/2012 Stipulation of extension of time filed to:

Appellant's appendix and opening brief filed. Due on 08/31/2012 By 18 Day(s) 8/31/12, 1st request after 60-day eot approved by PJ Plaintiff and Appellant: Thomas A. Glaski Attorney: Catarina Maria Benitez Attorney: Richard Lawrence Antognini Plaintiff and Appellant: Thomas A. Glaski

09/10/2012 Appellant notified re failure to timely file opening brief. 09/25/2012 Appellant's appendix and

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opening brief filed.

Attorney: Catarina Maria Benitez Attorney: Richard Lawrence Antognini CIP included; 2 volumes of appendix, 1 volume of appendix of unpublished federal cases; copy to CSMGR atty Benitez obo applt; held for 15 days for possible opposition (W&M) stipulation for eot for rb, however representative of applt not served on pos Steve with atty Barragan's office; will submit an amended pos for stipulation and responsive fee Responsive fee Amended for stipulation

09/25/2012 Request for judicial notice filed. 10/09/2012 Received:

10/09/2012 Telephone conversation with: 10/09/2012 Filing fee. 10/10/2012 Filed proof of service. 10/10/2012 Stipulation of extension of time filed to:

Respondent's Appendix and Respondent's Brief filed. Due on 11/26/2012 By 32 Day(s) 11/26/12, 1st stipulation Req for judicial notice filed 9/25/12 Respondent's objection to appellant's request for judicial notice submitted by atty Glavinovich (W&M) Ruling on appellant's request to take judicial notice filed on September 25, 2012, asking this court to take judicial notice of the items described on page RJN 000001 of the above mentioned motion, is deferred pending further order of court. (W4) Defendant and Respondent: JP Morgan Chase Bank, N.A. Attorney: Mikel Allison Glavinovich volume of appendix; pursuant to 8.25(b)

10/11/2012 To court. 10/11/2012 Opposition filed.

10/15/2012 Ruling on request for judicial notice deferred.

11/27/2012 Respondent's Appendix and Respondent's Brief filed. 12/14/2012 Stipulation of extension of time filed to:

Appellant's reply brief filed. Due on 01/17/2013 By 31 Day(s) 1st stipulation for EOT of ARB.

01/17/2013 Appellant's reply Plaintiff and Appellant: Thomas A. brief filed. Glaski Attorney: Catarina Maria Benitez Attorney: Richard Lawrence Antognini 01/17/2013 Case fully briefed. 04/19/2013 Oral argument waiver notice sent. (Neutral) #29 JAA

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04/25/2013 Received fax informational copy of: 04/25/2013 Received fax informational copy of:

REQUEST FOR O/A BY ATTY GLHRINEVION OBO RESP PERSONAL APPEARANCE & 15 MINS REQUEST FOR O/A BY ATTY ANTOGNINI OBO APPLT PERSONAL APPEARANCE & 15 MINS

05/10/2013 Calendar notice Wednesday, June 26, 2013 @ 1:30 sent. Calendar PM date: 06/17/2013 Letter sent to counsel re: The other line of case holds that allegations of an attempted assignment after the closing date of the securitized trust can provide grounds for relief. (E.g., Naranjo v. SBMC Mortgage (S.D.Cal. Jul. 24, 2012, No. 11-CV2229-L(WVG)) 2012 WL 3030370 at p. 3 [allegations of ineffective post-closing assignment supported the claim that the defendants lacked the legal right to either collect on the debt or enforce the underlying security interest]; Johnson v. HSBC Bank USA, National Association (S.D.Cal. Mar. 19, 2012, No. 3:11-CV2091-JM-WVG) 2012 WL 928433; Vogan v. Wells Fargo Bank, N.A. (E.D.Cal. Nov. 17, 2011, No. 2:11-CV02098-JAM-KJN) 2011 WL 5826016, at p. 7 [allowing 17200 claim when plaintiffs alleged that assignment was executed after the closing date of securities pool, "giving rise to a plausible inference that at least some part of the recorded assignment was fabricated"].) 2. New York trust law. The second line of cases concern the impact of a New York statute governing trusts on the question whether the post-closing date transfer is void or voidable. The statute, New York Estate Powers & Trusts Law section 7-2.4, provides that acts done in contravention of written trust instruments are void. "Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void." (Wells Fargo Bank, N.A. v. Erobobo (Apr. 29, 2013) 39 Misc.3d 1220(A), 2013 WL 1831799, slip opn. p. 8; see Levitin & Twomey, Mortgage Servicing (2011) 28 Yale J. on Reg. 1, 14, fn. 35 [under New York law, any transfer to the trust in contravention of the trust documents is void].) In In re Saldivar

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(Bank. S.D.Tex. Jun. 5, 2013) 2013 WL 2452699, the bankruptcy judge concluded "that under New York law, assignment of the Saldivar's Note after the start up day is void ab initio. As such, none of the Saldivars' claims will be dismissed for lack of standing." (Id. at p. 4.) In contrast, other federal courts sitting in Texas have concluded that the post-closing-date defect merely renders the assignment voidable and, therefore, the borrower (as a third party to the transaction) lacks standing to assert the defect. (Calderon v. Bank of America, N.A. (W.D.Tex. Apr. 23, 2013, No. SA:12-CV-00121-DAE) ___ F.Supp.2d ___, 2013 WL 1741951, at p. 12 [transfer of plaintiffs' note, if it violated PSA, would merely be voidable and therefore plaintiffs do not have standing to challenge it].) 3. Tax Code Provisions Governing REMIC. In addition, counsel should be prepared to address whether Glaski's allegations regarding the requirements imposed on REMIC trust have any impact on the question of standing and the analysis of the two splits in authority. (See Oppenheim & Trask-Rahn, Deconstructing the Black Magic of Securitized Trusts: How the MortgageBacked Securitization Process is Hurting the Banking Industry's Ability to Foreclose and Proving the Best Offense for a Foreclosure Defense (2012) 41 Stetson L. Rev. 745, 757-758 ["Once the bundled mortgages are given to a depositor, the [pooling and servicing agreement] and IRS tax code provisions require that the mortgages be transferred to the trust within a certain time frame, usually ninety dates from the date the trust is created. After such time, the trust closes and any subsequent transfers are invalid. The reason for this is purely economic for the trust. If the mortgages are properly transferred within the ninety day open period, and then the trust properly closes, the trust is allowed to maintain REMIC tax status"]; see also, Levitin & Twomey, Mortgage Servicing, supra, 28 Yale J. on Reg. at p. 14, fn. 35 ["it would not be possible to transfer the mortgage loans (the note and security instrument) to the trust after the REMIC's closing date without losing REMIC status"].) letter emailed to parties 06/17/2013 Letter sent to The court has directed me to send

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counsel re:

the following request in anticipation of oral argument. Background. Appellant Glaski contends that the parties to the foreclosure lacked the authority to foreclose because the beneficial interest created by his deed of trust was not actually held by a party to the foreclosure process. Glaski supports this contention by alleging two separate and distinct breaks in the chain of title of that beneficial interest. The matters raised in this letter concern the alleged break in the chain resulting from the ineffective attempt to transfer Glaski's deed of trust to the securitized trust for WaMu Mortgage Pass Through Certificates Series 2005-AR17. Glaski has alleged that (i) the securitized trust was formed under New York law and (ii) the attempted transfer occurred "after the Closing Date pursuant to the PSA [Pooling and Servicing Agreement] and the requirements for a REMIC [Real Estate Mortgage Investment Conduit] Trust." (1 AA 184:11-12 & 191:17-18.) These allegations are relevant to recent cases that have created splits in authority. The purpose of this letter is to bring the splits and related cases to the attention of counsel so that they are prepared to discuss the cases at oral argument. 1. Post-Closing Date Transfers. The first split was created by federal district courts sitting in California that addressed whether a borrower had stated a cognizable claim for relief by alleging his or her loan was assigned to the securitized trust after the trust's closing date. One line of cases holds that the borrower lacks standing to challenge the validity of an assignment when the borrower is not a party to the assignment agreement or a third party beneficiary of the agreement. (E.g., Gilbert v. Chase Home Finance, LLC (E.D.Cal. May 28, 2013, No. 1:13-CV-265 AWI SKO) 2013 WL 2318890; Baldoza v. Bank of America, N.A. (N.D.Cal. Mar. 12, 2013, No. C 12-05966 JCS) 2013 WL 978268; Aniel v. GMAC Mortgage, LLC (N.D.Cal. Nov. 2, 2012, No. C 12-04201 SBA) 2012 WL 5389706 [joining courts that held borrowers lack standing to assert the loan transfer occurred outside the temporal bounds prescribed by the pooling and servicing agreement]; Almutarreb v. Bank of New York Trust Co., N.A. (N.D.Cal. Sept. 24, 2012, No. C 12-3061 EMC) 2012 WL 4371410.)

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06/27/2013 Cause argued and submitted. 07/31/2013 Opinion filed.

@ 1:30 PM (#29 JAA) (Signed Unpublished) The judgment of dismissal is reversed. The trial court is directed to vacate its order sustaining the general demurrer and to enter a new order overruling that demurrer as to the third, fourth, fifth, eighth, and ninth causes of action. Glaski's request for judicial notice filed on September 25, 2012, is denied. Glaski shall recover his costs on appeal; Franson, Wiseman, Kane; 29 pages. opinion ordered published on 8/8/13 Atty Antognini obo applt Glaski (JAA) atty Didak (JAA)

08/05/2013 Filed request to publish opinion. 08/05/2013 Filed request to publish opinion.

08/08/2013 Order granting As the nonpublished opinion filed on publication filed. July 31, 2013, in the above entitled matter hereby meets the standards for publication specified in the California Rules of Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official Reports. (JAA) 08/08/2013 Received: request for publication submitted by atty Freshman, however pos does not include all parties ; moot since publication granted request for publication submitted by atty Perry, however pos does not include all parties; moot since publication granted Request for Publication by Robert H. Rhoades. Publication granted 8/8/13. Request for Publication by Rumio Sato. Publication granted 8/8/13. Request for Publication by James Macklin. Publication granted 8/8/13. Rquest for Publication by Rick Ensminger. Publication granted 8/8/13. Request for Publication by Attorney Allen J. Cory. Publication granted 8/8/13. Request for Publication by Charles W. Cox. Publication granted 8/8/13. Request for Publication by Elaine Williams, Publication granted 8/8/13. Request for Publication by Erlinda Aniel, Publication granted 8/8/13. Request for Publication by Brenda Reed, Publication granted 8/8/13.

08/08/2013 Received:

08/09/2013 Received: 08/09/2013 Received: 08/09/2013 Received: 08/09/2013 Received: 08/09/2013 Received:

08/09/2013 Received: 08/13/2013 Received: 08/13/2013 Received: 08/13/2013 Received:

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08/13/2013 Received: 08/13/2013 Received: 08/13/2013 Received: 08/13/2013 Received: 08/13/2013 Received: 08/13/2013 Received: 08/13/2013 Received:

Request for Publication by Toni Schultheis, Publication granted 8/8/13. Request for Publication by Thomas Schultheis, Publication granted 8/8/13. Request for Publication by Susan Augustitus, Publication granted 8/8/13. Request for Publication by Daniela Romero, Publication granted 8/8/13. Request for Publication by David Lilly, publication granted 8/8/13. Request for Publication by Debbie Thompson, publication granted 8/8/13. Request for Publication by Jeanine Newman-Reynolds, publication granted 8/8/13. Request for Publication by Keith Schwartz, publication granted 8/8/13. Request for Publication by Fareed Sepehry-Fard, publication granted 8/8/13. Request for Publication by Matthew Pitagora, publication granted 8/8/13. Request for Publication by Rick and Linda Jones, publication granted 8/8/13. Request for Publication by Douglas Hackett, publication granted 8/8/13. for certified copy of order for publication by Atty Bruce Guttman (certified copy mailed this date). for copy of opinion & order granting request for publication by Rob Rhoades (copies mailed this date). ex-parte application of Leah Litman to Appear Pro Hac Vice by atty Glavinovich (JAA) ex-parte application of Alan E. Schoenfeld to Appear Pro Hac Vice by atty Glavinovich (JAA) ex-parte application of Noah Levine to Appear Pro Hac Vice by atty Glavinovich (JAA) "Petition for Rehearing" as to the order of 8/8/13 granting publication; filed by Atty Glavinovich obo Respondents Bank of America, N.A. (JAA) Note: The Document was received and not filed due to original signature needed. Request for publication by Paul Papas - request is moot, publication previously granted 8/8/13 copy of order sent today)

08/13/2013 Received: 08/13/2013 Received:

08/15/2013 Received: 08/16/2013 Received:

08/16/2013 Received: 08/21/2013 Request filed to:

08/22/2013 Request filed to:

08/22/2013 Received copy of 08/22/2013 Received copy of 08/22/2013 Received copy of 08/23/2013 Received document entitled:

08/23/2013 Received:

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08/23/2013 pro hac vice application

atty Theodore E. Bacon for respondents Bank of America National Association: applicationa for attys Noah Levine; Leah Litman; Alan E. Schoenfeld to appear pro hac vice. (to JAA) atty Glavinovich obo applt (JAA) original certificate of word count for petition for rehearing (JAA) The ex parte applications of Leah Litman, Noah Levine and Alan E. Schoenfeld to appear pro hac vice, filed by respondents on August 23, 2013, are hereby granted. (JAA) JAA

08/26/2013 Rehearing petition filed. 08/26/2013 Filed document entitled: 08/27/2013 pro hac vice granted

08/29/2013 Order denying rehearing petition filed. 10/04/2013 Filed letter from:

Legal Aid Services of Oklahoma, Inc., req CD copy of oral argument (check #2156 enc.) Ex Parte application of Noah Levine to appear Pro Hac Vice (JAA) letter to Supreme Court dated 10/4/13 from atty Glavinovich obo JPMorgan Chase requesting to depublish opinion (JAA)

10/07/2013 Received copy of Supreme Court filing. 10/07/2013 Received copy of

10/08/2013 Remittitur issued. 10/08/2013 Case complete. 10/08/2013 Received copy of letter to Supreme Court dated 10/7/13 from atty Garbutt obo Deutsche Bank National Trust Company requesting to depublish opinion (JAA) letter to Supreme Court dated 10/10/13 from atty Little obo California Bankers Association and Wells Fargo Bank, N.A requesting to depublish opinion (JAA)

10/11/2013 Received copy of

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