Tuesday, June 21, 2016

Florida foreclosure reversed for Christiana Trust's lack of standing

SERIES 2013-15, Appellee.
No. 4D14-2369
June 8, 2016
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cynthia G. Imperato, Judge, and Barry J. Stone, Senior Judge; L.T. Case No. CACE 07-10279.
Cyrus A. Bischoff, Miami, for appellant.
Melissa A. Giasi of Kass Shuler, P.A., Tampa, for appellee.
        We grant appellant's motion to recall mandate, withdraw our previous opinion, and substitute the following in its place:
        This case presents us with yet another opportunity to resolve what has become a common issue for this court. Although this matter has taken a somewhat tortuous path through the lower court to reach us, the sole issue we will address among the several raised on appeal is whether there was sufficient evidence of Christiana Trust's ("appellee") standing to support the final judgment of foreclosure. We find that appellee lacked standing to foreclose, and reverse.
        On May 8, 2007, Countrywide Home Loans, Inc. filed a foreclosure action against Fallon Rahima Jallali ("appellant") that contained within its initial pleading a count alleging a missing note. Countrywide claimed that
Page 2
it had been assigned the mortgage and note, but did not have possession of the actual documents at that time. Seven months later, Countrywide filed the original note and original recorded assignment of mortgage with the court. The note was signed by appellant and bore an undated blank endorsement. Although the original complaint averred that Countrywide was assigned the mortgage and note prior to the inception of the lawsuit, the record shows that the assignment actually occurred on August 8, 2007, three months after the suit was filed. The mortgage ultimately was assigned to appellee, who later was substituted as plaintiff.1
        The case eventually was scheduled for a non-jury trial on January 22, 2014. Six days before that trial date, appellant filed a suggestion of bankruptcy and a motion to stay the proceedings in the foreclosure action. To ensure that the trial would proceed as scheduled, appellee's counsel sought and received an order from the bankruptcy court confirming that an automatic stay of the foreclosure action was not in effect. The day before the scheduled proceedings, appellant's counsel informed appellee's counsel that he received an e-mail from the court stating that the non-jury trial had been removed from the docket as a result of a suggestion of bankruptcy being filed.2 Appellee's counsel did not agree the non-jury trial was cancelled. She informed appellant's counsel that an automatic stay was not in effect and that appellee would proceed with trial as scheduled if the bankruptcy court confirmed the absence of any stay.
        On the morning of January 22, the bankruptcy court confirmed that an automatic stay was not in effect. Later that afternoon, appellee's counsel came to court and checked the trial docket posted outside the courtroom to confirm the non-jury trial remained scheduled for 1:30 p.m. She also announced the case to the courtroom, and determined that appellant was not present. After receiving testimony from appellee's witnesses, the trial court immediately entered final judgment for appellee.
Page 3
        The following day, appellant's counsel sought out a duty judge to "set things right," arguing that the case had proceeded despite being ostensibly cancelled by the e-mail. That duty judge was persuaded to schedule an evidentiary hearing on January 24, 2014, wherein the court issued a vacatur of foreclosure.3
        After learning that the final judgment had been vacated by the duty judge, appellee in turn sought to vacate the vacatur of foreclosure, arguing in part that it had been obtained by an ex-parte communication with the court. The case then was assigned to a magistrate judge for an evidentiary hearing on the issue. Following the hearing, the magistrate recommended that the final judgment be vacated due to the trial's cancellation, and that the vacatur of foreclosure be vacated because appellee was not notified about the hearing and did not attend.
        Appellee filed an exception to the magistrate's report. After multiple additional hearings, the trial court granted appellee's motion to vacate the vacatur of foreclosure and reinstated the final judgment. In so doing, the trial court explicitly chose not to adopt the magistrate's report.
        Two weeks later, appellant again moved to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b), this time alleging fraud upon the court. The trial court denied that motion and this appeal ensued.
        We have repeatedly stated that:
"A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose." McLean vJP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). The plaintiff must prove that it had standing to foreclose when the original complaint was filed. Id.
Kenney vHSBC Bank USANat'l Ass'n, 175 So. 3d 377, 379 (Fla. 4th DCA 2015).
Page 4
        As always, "a party must have standing to file suit 'at its inception and may not remedy this defect by subsequently obtaining standing.'"Gascue vHSBC BankU.S.A., 97 So. 3d 263, 264 (Fla. 4th DCA 2012) (quoting Rigby vWells Fargo BankN.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012)). When the foreclosing party is not the original lender, it "may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff's status as the holder of the note."Kenney, 175 So. 3d at 379 (quoting Focht vWells Fargo BankN.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013)).
        If the foreclosing party "asserts standing based on an undated endorsement of the note, it must show that the endorsement occurred before the filing of the complaint through additional evidence, such as the testimony of a litigation analyst." Id. (quoting Lloyd vBank of N.YMellon, 160 So. 3d 513, 515 (Fla. 4th DCA 2015)). When a plaintiff attempts to foreclose based upon an undated, blank-endorsed note that it filed after the initial complaint, and provides no proof that it was the holder or authorized representative of the holder prior to the inception of the lawsuit, it fails to prove its standing to foreclose. Seee.g., Perez vDeutsche Bank Nat'l Trust Co., 174 So. 3d 489, 490-91 (Fla. 4th DCA 2015) (reversing final judgment of foreclosure where bank attempted to prove standing based in part upon an undated blank-endorsed note filed after the initial complaint, but failed to provide evidence that it possessed the note prior to the time suit was filed).
        A substituted plaintiff can acquire standing to foreclose if the original party had standing. Assil vAurora Loan Servs., LLC, 171 So. 3d 226, 227 (Fla. 4th DCA 2015) ("Pursuant to Florida Rule of Civil Procedure 1.260, a substituted plaintiff acquires the standing of the original plaintiff.") (quoting Kiefert vNationstar Mortg., LLC, 153 So. 3d 351, 353 n.4 (Fla. 1st DCA 2014)). In this case, the record is devoid of any proof that Countrywide had possession of the blank-endorsed note prior to the inception of the lawsuit. Appellee also failed to prove that Countrywide had standing to foreclose based upon the assignment of mortgage, as it was clear the assignment took place after suit was filed. See Balch vLaSalle Bank N.A., 171 So. 3d 207, 209 (Fla. 4th DCA 2015) (reversing a foreclosure judgment in part because the "assignment [of the mortgage] was executed after the complaint was filed").
Page 5
        Accordingly, we reverse the final judgment of foreclosure for lack of standing and remand with instructions for the trial court to enter an involuntary dismissal in favor of appellant.
        Reversed and Remanded.
GROSS and GERBER, JJ., concur.
        1. On or about January 29, 2013, Countrywide assigned the note and mortgage to LEX Special Assets, LLC, which in turn assigned the note and mortgage to appellee on November 7, 2013. On December 10, 2013, the trial court granted appellee's motion to substitute itself as plaintiff in the foreclosure action. However, in its motion for substitution, appellee alleged that Countrywide had been assigned the note and mortgage on August 8, 2007, after the initial complaint was filed.
        2. The e-mail was not received by appellee's counsel, and referred to proceedings scheduled for February 14, 2013, even though the case number referred to the instant case, which was set for non-jury trial on January 22, 2014.
        3. Appellee states that it was not made aware of this hearing and never given a copy of the vacatur of foreclosure. Appellee claims it first learned that the final judgment had been vacated when appellant later filed a separate quiet title action against appellee.


Tuesday, May 10, 2016

Virginia's First post-Jesinoski TILA rescission case settles on mutually amicable terms

Virginia's First post-Jesinoski TILA rescission case settles on mutually amicable terms.  No further information is available, as the terms of the settlement are confidential.

Monday, April 18, 2016

Chase loses in Florida for lack of stanidng

OTTONIEL CRUZ and LUZ M. CRUZ, Appellants,
No. 4D14-3799
March 23, 2016
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No. CACE09024572(11).
Paul Alexander Bravo of P.A. Bravo, Coral Gables, and Ricardo Manuel Corona of Corona Law Firm, Miami, for appellants.
Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Kathryn B. Hoeck of Akerman LLP, Orlando, for appellee.
        The number of entities through which the note and mortgage traveled complicates the facts. The bottom line, however, is JPMorgan Chase Bank, National Association's ("JPMorgan") failure to prove standing requires a reversal of the final judgment of foreclosure.
        The borrower executed a mortgage and note in favor of Washington Mutual Bank F.A. ("WAMU"). On March 5, 2008, the borrower quitclaimed the property to Ottoniel Cruz and Luz Cruz ("owners"). On September 25, 2008, the Federal Deposit Insurance Corporation ("FDIC"), receiver for WAMU, sold substantially all assets and liabilities of WAMU to JPMorgan through a purchase and assumption agreement ("PAA").
        Section 3.1 of the PAA reads, in part, "[T]he Assuming Bank hereby purchases from the receiver, and the Receiver hereby sells, assigns,
Page 2
transfers, conveys, and delivers to the Assuming Bank, all right, title, and interest of the receiver in and to all of the assets (real, personal and mixed, wherever located and however acquired) . . . of the Failed Bank."
        Section 3.2 reads, in part, "All Assets and assets of the Failed Bank subject to an option to purchase by the Assuming Bank shall be purchased for the amount . . . as specified on Schedule 3.2, except as otherwise may be provided herein." Section 3.3 reads, in part, "[T]he conveyance of all assets . . . purchased by the Assuming Bank under this agreement shall be made, as necessary, by Receiver's deed or Receiver's bill of sale." Section 6.2 obligates the FDIC to deliver assets, including loan documents, "as soon as practicable on or after the date of this Agreement."
        The "Settlement Date" is defined as "the first Business Day immediately prior to the day which is one hundred eighty (180) days after Bank Closing, or such other date prior thereto as may be agreed upon by the Receiver and the Assuming Bank." Article X explains that as a condition precedent, the parties were subject to the Receiver "having received at or before the Bank Closing, evidence reasonably satisfactory to each of any necessary approval, waiver, or other action by any governmental authority . . . with respect to this Agreement."
        On December 1, 2008, the owners defaulted by failing to pay their monthly payment. WAMU sent the default notice on January 28, 2009. On April 29, 2009, JPMorgan filed a foreclosure action. The complaint included a count to reestablish a lost note and a count for foreclosure of the mortgage. JPMorgan alleged that it "owns and holds said note and mortgage." The lost note count stated that the note "has been lost or destroyed and is not in the custody or control of the Plaintiff who is the owner and holder of the subject Note and Mortgage and its whereabouts cannot be determined." It also stated that JPMorgan or its predecessors were in possession of the note and were entitled to enforce it when the loss occurred, and "[t]he loss of possession was not the result of a transfer or a lawful seizure."
        Attached to the complaint was a copy of the mortgage, but not a copy of the note. On October 26, 2009, JPMorgan dropped the lost note count.
        On April 12, 2010, the owners filed their answer and asserted several affirmative defenses, including lack of standing and failure to comply with conditions precedent.
        In January 2014, JPMorgan transferred its ownership interests in the mortgage to PennyMac Corporation ("PennyMac Corp."). On February 21,
Page 3
2014, the FDIC executed an assignment of the mortgage to JPMorgan. The assignment read, in part, "This Assignment is intended to further memorialize the transfer that occurred by operation of law on September 25, 2008 as authorized by Section 11(d)(2)(G)(i)(II) of the Federal Deposit Insurance Act, 12 U.S.C. § 1821(d)(2)(G)(i)(II)."
        On February 21, 2014, JPMorgan then executed an assignment of mortgage in favor of PennyMac Corp. Servicing of the loan was transferred from JPMorgan to PennyMac Loan Services, LLC ("PennyMac Loan Services"), which was the servicer at the time of trial. On August 1, 2014, JPMorgan moved to substitute PennyMac Corp. as party plaintiff, but the motion was never heard.
        PennyMac Corp. allegedly discovered a week before trial that the original note was lost. On August 22, 2014, JPMorgan moved to amend the complaint to add a lost note count, and attached an affidavit from a PennyMac Loan Services foreclosure operations supervisor. The trial court denied the motion the day before the trial began.
        On August 28, 2014, the case proceeded to a non-jury trial. JPMorgan called PennyMac Loan Services' foreclosure operations supervisor as its witness. She testified that PennyMac Loan Services serviced the loan on behalf of the current owner, PennyMac Corp., and JPMorgan was the prior servicer.
        She did not have the original note with her because it was lost or destroyed. The note "was lost after the complaint was filed," but before it acquired servicing rights. PennyMac Loan Services conducted its due diligence, reached out to prior foreclosure counsel, and checked the court docket to see if the original note was already filed, but it was unable to find the original note.
        The witness reviewed PennyMac Loan Services' records, and the original note was not transferred to anyone else or seized by anyone. PennyMac Corp. was willing to indemnify the note maker for any claims that might be placed because of the loss. She obtained the copy of the note from PennyMac Loan Services' business records, which were uploaded by PennyMac Loan Services' loan boarding department at the time PennyMac Loan Services acquired servicing rights of the subject loan.
        When JPMorgan attempted to move the copy of the note into evidence, defense counsel questioned the witness, and objected to the introduction of the copy of the note "based on the evidence rule and . . . trustworthiness and authenticity of it." Counsel also argued that no reestablishment count
Page 4
was pending before the court and "their complaint only seeks mortgage foreclosure and they dropped the establishment of lost mortgage note back in I believe 2010 . . . . [T]hey are asking the Court to improperly amend their pleadings . . . ."
        JPMorgan responded that it was not asking the court to amend because "[t]he lost note count is the count that has become tradition to put in the complaint," but "it is actually an evidentiary matter." The trial court overruled the objection and admitted the copy of the note. The court also admitted, among other things, a copy of the PAA.
        At the end of the trial, the owners moved for an involuntary dismissal, arguing JPMorgan was required to produce the original note and failed to comply with the conditions precedent to filing the foreclosure action. The trial court denied the motion.
        The trial court granted final judgment of foreclosure in favor of JPMorgan. From this judgment, the owners now appeal.
        The owners argue JPMorgan failed to prove it had standing to foreclose at the case's inception and when the trial court entered final judgment. JPMorgan failed to attach a copy of the note to the complaint. The copy of the note that was eventually filed had an undated blank endorsement and JPMorgan failed to elicit testimony regarding the endorsement date. JPMorgan also introduced an assignment of mortgage showing its rights were transferred to PennyMac Corp. six months before trial.
        JPMorgan responds that standing is determined at the time suit is filed, not at the time of trial. The endorsement date was immaterial because it proved ownership and did not rely on the endorsement. It was authorized under the Florida Rules of Civil Procedure to continue the action in its name after transferring its interest to PennyMac Corp.
        The owners reply that the evidence failed to establish JPMorgan acquired standing. The PAA did not provide for the purchase of all WAMU's assets, and required a separate conveyance instrument for assets actually purchased. The PAA provided only that JPMorgan had the right to purchase certain WAMU assets from the FDIC, but nothing shows any property was transferred, and 12 U.S.C. § 1821 does not save JPMorgan.
        This Court reviews whether a party has standing to bring an action de novo. Dixon vExpress Equity Lending Grp., LLLP, 125 So. 3d 965, 967 (Fla. 4th DCA 2013).
Page 5
        "A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose" when the complaint is filed. McLean vJP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). "[S]tanding may be established from the plaintiff's status as the note holder, regardless of any recorded assignments." Id. (citation omitted). "If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement.Id. The plaintiff may also show "an affidavit of ownership to prove its status as a holder of the note." Id.; see Sosa vU.SBank Nat'l Ass'n, 153 So. 3d 950, 951 (Fla. 4th DCA 2014).
        "A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that [it] had standing as of the time the foreclosure complaint was filed." Kiefert vNationstar Mortg., LLC, 153 So. 3d 351, 352 (Fla. 1st DCA 2014) (emphasis added).
Such a plaintiff must prove not only physical possession of the original note but also, if the plaintiff is not the named payee, possession of the original note endorsed in favor of the plaintiff or in blank (which makes it bearer paper). If the foreclosure plaintiff is not the original, named payee, the plaintiff must establish that the note was endorsed (either in favor of the original plaintiff or in blank) before the filing of the complaint in order to prove standing as a holder.
Id. at 353 (internal citations omitted). "A plaintiff's lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed and cannot be established retroactively by acquiring standing to file a lawsuit after the fact." LaFrance vU.S.Bank Nat'l Ass'n, 141 So. 3d 754, 756 (Fla. 4th DCA 2014) (citation omitted) (internal quotation marks omitted).
        A "person entitled to enforce" an instrument is: "1) [t]he holder1 of the instrument; 2) [a] nonholder in possession of the instrument who has the rights of a holder; or 3) [a] person not in possession of the instrument who is entitled to enforce the instrument pursuant to s[ection] 673.3091 or s[ection] 673.4181(4)." § 673.3011, Fla. Stat. (2014); see Mazine vM & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011). "A person may be a
Page 6
person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument." § 673.3011, Fla. Stat.
        JPMorgan alleged that it was the note holder, but it failed to prove its holder status at trial. JPMorgan did not attach the note to the complaint. It introduced a copy of the note at trial, which contained an attached allonge indicating a blank endorsement from "JP Morgan Chase Bank, NA Successor in Interest by Purchaser from the FDIC as receiver of Washington Mutual Bank F/K/A Washington Mutual Bank, FA." However, PennyMac Loan Services' witness did not testify to when the allonge was attached to the note or when the endorsement occurred. No other record evidence indicated when it occurred or when JPMorgan became the note holder. See Peoples vSami II Trust 2006-AR6, 178 So. 3d 67, 69-70 (Fla. 4th DCA 2015).
        Although JPMorgan does not meet any of the requirements of a holder—and does not attempt to prove it did—it argues it proved standing because it owned the note and mortgage when it initiated the foreclosure action. It argues the 2008 PAA and a 2014 assignment of mortgage proved ownership. We disagree.
        To prove its standing to foreclose, JPMorgan would have to prove it was "[a] person not in possession of the instrument who is entitled to enforce the instrument pursuant to s[ection] 673.3091 or s[ection] 673.4181(4)." § 673.3011(3), Fla. Stat. "[N]othing in [section 673.3011] allows an 'owner' to enforce the note without possession, except where the instrument is lost or destroyed." Snyder vJP Morgan Chase BankNat'l Ass'n, 169 So. 3d 1270, 1273 (Fla. 4th DCA 2015). Therefore, JPMorgan would have to prove: (1) it was the owner, and (2) reestablishment of the lost note under section 673.3091See id.
        Here, there was no proof that JPMorgan had possession of the note at the time it filed the complaint. JPMorgan acknowledged that the note was lost and not in its custody or control. Because the original note was never filed with the court and there was no other evidence of possession, no competent substantial evidence exists of possession. See id. at 1272. And, similar to Snyder, there exists no competent substantial evidence of ownership. The PAA has caveats where JPMorgan could refuse to acquire assets and there is no record evidence that the FDIC transferred the note to JPMorgan before the complaint was filedId. We reverse the final judgment of foreclosure based on JPMorgan's failure to prove standing.
Page 7
FORST, J., and SCHER, ROSEMARIE, Associate Judge, concur.
* * *
        Not final until disposition of timely filed motion for rehearing.
        1. A "holder" is defined as "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." § 671.201(21)(a), Fla. Stat. (2014).


Wednesday, February 24, 2016

California Supreme Court: Borrower CAN challenge VOID (as opposed to voidable) assignments

On February 18, 2016, the Supreme Court of California held that an allegation of void assignment in the chain of title will support an action for wrongful foreclosure.  Straight from the horse's mouth:

"We conclude . . . that because in a nonjudicial foreclosure only the original beneficiary of a deed of trust or its assignee or agent may direct the trustee to sell the property, an allegation that the assignment was void, and not merely voidable at the behest of the parties to the assignment, will support an action for wrongful foreclosure."  

The law is similar in the majority of other states, including Virginia and Florida.  The full opinion is below, with notable portions highlighted in red.

TSVETANA YVANOVA, Plaintiff and Appellant,
NEW CENTURY MORTGAGE CORPORATION et al., Defendants and Respondents.
February 18, 2016
Ct.App. 2/1 B247188
Los Angeles County Super. Ct. No. LC097218
        The collapse in 2008 of the housing bubble and its accompanying system of home loan securitization led, among other consequences, to a great national wave of loan defaults and foreclosures. One key legal issue arising out of the collapse was whether and how defaulting homeowners could challenge the validity of the chain of assignments involved in securitization of their loans. We granted review in this case to decide one aspect of that question: whether the borrower on a home loan secured by a deed of trust may base an action for wrongful foreclosure on allegations a purported assignment of the note and deed of trust to the foreclosing party bore defects rendering the assignment void.
        The Court of Appeal held plaintiff Tsvetana Yvanova could not state a cause of action for wrongful foreclosure based on an allegedly void assignment because she lacked standing to assert defects in the assignment, to which she was not a
Page 2
party. We conclude, to the contrary, that because in a nonjudicial foreclosure only the original beneficiary of a deed of trust or its assignee or agent may direct the trustee to sell the property, an allegation that the assignment was void, and not merely voidable at the behest of the parties to the assignment, will support an action for wrongful foreclosure.
        Our ruling in this case is a narrow one. We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the challenged assignment. We do not hold or suggest that a borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit questioning the foreclosing party's right to proceed. Nor do we hold or suggest that plaintiff in this case has alleged facts showing the assignment is void or that, to the extent she has, she will be able to prove those facts. Nor, finally, in rejecting defendants' arguments on standing do we address any of the substantive elements of the wrongful foreclosure tort or the factual showing necessary to meet those elements.
        This case comes to us on appeal from the trial court's sustaining of a demurrer. For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law. We may also consider matters subject to judicial notice. (Evans vCity of Berkeley (2006) 38 Cal.4th 1, 6.)1 To determine whether
Page 3
the trial court should, in sustaining the demurrer, have granted the plaintiff leave to amend, we consider whether on the pleaded and noticeable facts there is a reasonable possibility of an amendment that would cure the complaint's legal defect or defects. (Schifando v.City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
        In 2006, plaintiff executed a deed of trust securing a note for $483,000 on a residential property in Woodland Hills, Los Angeles County. The lender, and beneficiary of the trust deed, was defendant New Century Mortgage Corporation (New Century). New Century filed for bankruptcy on April 2, 2007, and on August 1, 2008, it was liquidated and its assets were transferred to a liquidation trust.
        On December 19, 2011, according to the operative complaint, New Century (despite its earlier dissolution) executed a purported assignment of the deed of trust to Deutsche Bank National Trust, as trustee of an investment loan trust the complaint identifies as "Msac-2007 Trust-He-1 Pass Thru Certificates." We take notice of the recorded assignment, which is in the appellate record. (See fn. 1, ante.) As assignor the recorded document lists New Century; as assignee it lists Deutsche Bank National Trust Company (Deutsche Bank) "as trustee for the registered holder of Morgan Stanley ABS Capital I Inc. Trust 2007-HE1 Mortgage Pass-Through Certificates, Series 2007-HE1" (the Morgan Stanley investment
Page 4
trust). The assignment states it was prepared by Ocwen Loan Servicing, LLC, which is also listed as the contact for both assignor and assignee and as the attorney in fact for New Century. The assignment is dated December 19, 2011, and bears a notation that it was recorded December 30, 2011.
        According to the complaint, the Morgan Stanley investment trust to which the deed of trust on plaintiff's property was purportedly assigned on December 19, 2011, had a closing date (the date by which all loans and mortgages or trust deeds must be transferred to the investment pool) of January 27, 2007.
        On August 20, 2012, according to the complaint, Western Progressive, LLC, recorded two documents: one substituting itself for Deutsche Bank as trustee, the other giving notice of a trustee's sale. We take notice of a substitution of trustee, dated February 28, 2012, and recorded August 20, 2012, replacing Deutsche Bank with Western Progressive, LLC, as trustee on the deed of trust, and of a notice of trustee's sale dated August 16, 2012, and recorded August 20, 2012.
        A recorded trustee's deed upon sale dated December 24, 2012, states that plaintiff's Woodland Hills property was sold at public auction on September 14, 2012. The deed conveys the property from Western Progressive, LLC, as trustee, to the purchaser at auction, THR California LLC, a Delaware limited liability company.
        Plaintiff's second amended complaint, to which defendants demurred, pleaded a single count for quiet title against numerous defendants including New Century, Ocwen Loan Servicing, LLC, Western Progressive, LLC, Deutsche Bank, Morgan Stanley Mortgage Capital, Inc., and the Morgan Stanley investment trust. Plaintiff alleged the December 19, 2011, assignment of the deed of trust from New Century to the Morgan Stanley investment trust was void for two reasons: New Century's assets had previously, in 2008, been transferred to a bankruptcy trustee; and the Morgan Stanley investment trust had closed to new
Page 5
loans in 2007. (The demurrer, of course, does not admit the truth of this legal conclusion; we recite it here only to help explain how the substantive issues in this case were framed.) The superior court sustained defendants' demurrer without leave to amend, concluding on several grounds that plaintiff could not state a cause of action for quiet title.
        The Court of Appeal affirmed the judgment for defendants on their demurrer. The pleaded cause of action for quiet title failed fatally, the court held, because plaintiff did not allege she had tendered payment of her debt. The court went on to discuss the question, on which it had sought and received briefing, of whether plaintiff could, on the facts alleged, amend her complaint to plead a cause of action for wrongful foreclosure.
        On the wrongful foreclosure question, the Court of Appeal concluded leave to amend was not warranted. Relying on Jenkins v.JPMorgan Chase BankN.A(2013) 216 Cal.App.4th 497 (Jenkins), the court held plaintiff's allegations of improprieties in the assignment of her deed of trust to Deutsche Bank were of no avail because, as an unrelated third party to that assignment, she was unaffected by such deficiencies and had no standing to enforce the terms of the agreements allegedly violated. The court acknowledged that plaintiff's authority, Glaski vBank of Americasupra, 218 Cal.App.4th 1079 (Glaski), conflicted with Jenkins on the standing issue, but the court agreed with the reasoning of Jenkins and declined to follow Glaski.
        We granted plaintiff's petition for review, limiting the issue to be briefed and argued to the following: "In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?"
Page 6
        I. Deeds of Trust and Nonjudicial Foreclosure
        A deed of trust to real property acting as security for a loan typically has three parties: the trustor (borrower), the beneficiary (lender), and the trustee. "The trustee holds a power of sale. If the debtor defaults on the loan, the beneficiary may demand that the trustee conduct a nonjudicial foreclosure sale." (Biancalana vT.DService Co(2013) 56 Cal.4th 807, 813.) The nonjudicial foreclosure system is designed to provide the lender-beneficiary with an inexpensive and efficient remedy against a defaulting borrower, while protecting the borrower from wrongful loss of the property and ensuring that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser. (Moeller vLien (1994) 25 Cal.App.4th 822, 830.)
        The trustee starts the nonjudicial foreclosure process by recording a notice of default and election to sell. (Civ. Code, § 2924, subd. (a)(1).)2 After a three-month waiting period, and at least 20 days before the scheduled sale, the trustee may publish, post, and record a notice of sale. (§§ 2924, subd. (a)(2), 2924f, subd. (b).) If the sale is not postponed and the borrower does not exercise his or her rights of reinstatement or redemption, the property is sold at auction to the highest bidder. (§ 2924g, subd. (a); Jenkinssupra, 216 Cal.App.4th at p. 509; Moeller vLiensupra, 25 Cal.App.4th at pp. 830-831.) Generally speaking, the foreclosure sale extinguishes the borrower's debt; the lender may recover no deficiency. (Code Civ. Proc., § 580d; Dreyfuss vUnion Bank of California (2000) 24 Cal.4th 400, 411.)
Page 7
        The trustee of a deed of trust is not a true trustee with fiduciary obligations, but acts merely as an agent for the borrower-trustor and lender-beneficiary. (Biancalana vT.DService Co., supra, 56 Cal.4th at p. 819; Vournas vFidelity NatTitInsCo(1999) 73 Cal.App.4th 668, 677.) While it is the trustee who formally initiates the nonjudicial foreclosure, by recording first a notice of default and then a notice of sale, the trustee may take these steps only at the direction of the person or entity that currently holds the note and the beneficial interest under the deed of trust—the original beneficiary or its assignee—or that entity's agent. (§ 2924, subd. (a)(1) [notice of default may be filed for record only by "[t]he trustee, mortgagee, or beneficiary"]; Kachlon vMarkowitz (2008) 168 Cal.App.4th 316, 334 [when borrower defaults on the debt, "the beneficiary may declare a default and make a demand on the trustee to commence foreclosure"]; Santens vLos Angeles Finance Co(1949) 91 Cal.App.2d 197, 202 [only a person entitled to enforce the note can foreclose on the deed of trust].)
        Defendants emphasize, correctly, that a borrower can generally raise no objection to assignment of the note and deed of trust. A promissory note is a negotiable instrument the lender may sell without notice to the borrower. (Creative VenturesLLC vJim Ward & Associates (2011) 195 Cal.App.4th 1430, 1445-1446.) The deed of trust, moreover, is inseparable from the note it secures, and follows it even without a separate assignment. (§ 2936; Cockerell vTitle Ins& Trust Co(1954) 42 Cal.2d 284, 291; U.SvThornburg (9th Cir. 1996) 82 F.3d 886, 892.) In accordance with this general law, the note and deed of trust in this case provided for their possible assignment.
        A deed of trust may thus be assigned one or multiple times over the life of the loan it secures. But if the borrower defaults on the loan, only the current beneficiary may direct the trustee to undertake the nonjudicial foreclosure process. "[O]nly the 'true owner' or 'beneficial holder' of a Deed of Trust can bring to
Page 8
completion a nonjudicial foreclosure under California law." (Barrionuevo vChase BankN.A. (N.D.Cal. 2012) 885 F.Supp.2d 964, 972; see Herrera vDeutsche Bank National Trust Co(2011) 196 Cal.App.4th 1366, 1378 [bank and reconveyance company failed to establish they were current beneficiary and trustee, respectively, and therefore failed to show they "had authority to conduct the foreclosure sale"]; cf. U.SBank NatAssnvIbanez (Mass. 2011) 941 N.E.2d 40, 51 [under Mass. law, only the original mortgagee or its assignee may conduct nonjudicial foreclosure sale].)
        In itself, the principle that only the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt is not, or at least should not be, controversial. It is a "straightforward application[] of well-established commercial and real-property law: a party cannot foreclose on a mortgage unless it is the mortgagee (or its agent)." (Levitin, The Paper Chase: Securitization,Foreclosureand the Uncertainty of Mortgage Title (2013) 63 Duke L.J. 637, 640.) Describing the copious litigation arising out of the recent foreclosure crisis, a pair of commentators explained: "While plenty of uncertainty existed, one concept clearly emerged from litigation during the 2008-2012 period: in order to foreclose a mortgage by judicial action, one had to have the right to enforce the debt that the mortgage secured. It is hard to imagine how this notion could be controversial." (Whitman & Milner, Foreclosing on Nothing: The Curious Problem of the Deed of Trust Foreclosure Without Entitlement to Enforce the Note (2013) 66 Ark. L.Rev. 21, 23, fn. omitted.)
        More subject to dispute is the question presented here: under what circumstances, if any, may the borrower challenge a nonjudicial foreclosure on the ground that the foreclosing party is not a valid assignee of the original lender? Put
Page 9
another way, does the borrower have standing to challenge the validity of an assignment to which he or she was not a party?3 We proceed to that issue.
        II. Borrower Standing to Challenge an Assignment as Void
        A beneficiary or trustee under a deed of trust who conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to the borrower for wrongful foreclosure. (Chavez vIndymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062; Munger v.Moore (1970) 11 Cal.App.3d 1, 7.)4 A foreclosure initiated by one with no authority to do so is wrongful for purposes of
Page 10
such an action. (Barrionuevo vChase BankN.A., supra, 885 F.Supp.2d at pp. 973-974; Ohlendorf vAmerican Home Mortgage Servicing (E.D.Cal. 2010) 279 F.R.D. 575, 582-583.) As explained in part I, ante, only the original beneficiary, its assignee or an agent of one of these has the authority to instruct the trustee to initiate and complete a nonjudicial foreclosure sale. The question is whether and when a wrongful foreclosure plaintiff may challenge the authority of one who claims it by assignment.
        In Glaskisupra, 218 Cal.App.4th 1079, 1094-1095, the court held a borrower may base a wrongful foreclosure claim on allegations that the foreclosing party acted without authority because the assignment by which it purportedly became beneficiary under the deed of trust was not merely voidable but void. Before discussing Glaski's holdings and rationale, we review the distinction between void and voidable transactions.
        A void contract is without legal effect. (Rest.2d Contracts, § 7, com. a.) "It binds no one and is a mere nullity." (Little vCFS Service Corp(1987) 188 Cal.App.3d 1354, 1362.) "Such a contract has no existence whatever. It has no legal entity for any purpose and neither action nor inaction of a party to it can validate it . . . ." (Colby vTitle Insand Trust Co. (1911) 160 Cal. 632, 644.) As we said of a fraudulent real property transfer in First NatBank of LAvMaxwell (1899) 123 Cal. 360, 371, " 'A void thing is as no thing.' "
        A voidable transaction, in contrast, "is one where one or more parties have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance." (Rest.2d Contracts, § 7.) It may be declared void but is not void in itself. (Little vCFS Service Corp., supra, 188 Cal.App.3d at p. 1358.) Despite its defects, a voidable transaction, unlike a void one, is subject to ratification by the
Page 11
parties. (Rest.2d Contracts, § 7; Aronoff vAlbanese (N.Y.App.Div. 1982) 446 N.Y.S.2d 368, 370.)
        In Glaski, the foreclosing entity purportedly acted for the current beneficiary, the trustee of a securitized mortgage investment trust.5The plaintiff, seeking relief from the allegedly wrongful foreclosure, claimed his note and deed of trust had never been validly assigned to the securitized trust because the purported assignments were made after the trust's closing date. (Glaskisupra, 218 Cal.App.4th at pp. 1082-1087.)
        The Glaski court began its analysis of wrongful foreclosure by agreeing with a federal district court that such a cause of action could be made out " 'where a party alleged not to be the true beneficiary instructs the trustee to file a Notice of Default and initiate nonjudicial foreclosure.' " (Glaskisupra, 218 Cal.App.4th at p. 1094, quoting Barrionuevo vChase BankN.A., supra, 885 F.Supp.2d at p. 973.) But the wrongful foreclosure plaintiff, Glaski cautioned, must do more than assert a lack of authority to foreclose; the plaintiff must allege facts "show[ing] the defendant who invoked the power of sale was not the true beneficiary." (Glaski, at p. 1094.)
        Acknowledging that a borrower's assertion that an assignment of the note and deed of trust is invalid raises the question of the borrower's standing to
Page 12
challenge an assignment to which the borrower is not a party, the Glaski court cited several federal court decisions for the proposition that a borrower has standing to challenge such an assignment as void, though not as voidable. (Glaskisupra, 218 Cal.App.4th at pp. 1094-1095.) Two of these decisions, Culhane vAurora Loan Services of Nebraska (1st Cir. 2013) 708 F.3d 282 (Culhane) and Reinagel vDeutsche Bank NatTrust Co. (5th Cir. 2013) 735 F.3d 220 (Reinagel),6 discussed standing at some length; we will examine them in detail in a moment.
        Glaski adopted from the federal decisions and a California treatise the view that "a borrower can challenge an assignment of his or her note and deed of trust if the defect asserted would void the assignment" not merely render it voidable. (Glaskisupra, 218 Cal.App.4th at p. 1095.) Cases holding that a borrower may never challenge an assignment because the borrower was neither a party to nor a third party beneficiary of the assignment agreement " 'paint with too broad a brush' " by failing to distinguish between void and voidable agreements. (Ibid., quoting Culhanesupra, 708 F.3d at p. 290.)
        The Glaski court went on to resolve the question of whether the plaintiff had pled a defect in the chain of assignments leading to the foreclosing party that would, if true, render one of the necessary assignments void rather than voidable. (Glaskisupra, 218 Cal.App.4th at p. 1095.) On this point, Glaski held allegations that the plaintiff's note and deed of trust were purportedly transferred into the trust after the trust's closing date were sufficient to plead a void assignment and hence to establish standing. (Glaski, at pp. 1096-1098.) This last holding of Glaski is not before us. On granting plaintiff's petition for review, we limited the scope of
Page 13
our review to whether "the borrower [has] standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void." We did not include in our order the question of whether a postclosing date transfer into a New York securitized trust is void or merely voidable, and though the parties' briefs address it, we express no opinion on the question here.
        Returning to the question that is before us, we consider in more detail the authority Glaski relied on for its standing holding. InCulhane, a Massachusetts home loan borrower sought relief from her nonjudicial foreclosure on the ground that the assignment by which Aurora Loan Services of Nebraska (Aurora) claimed authority to foreclose—a transfer of the mortgage from Mortgage Electronic Registration Systems, Inc. (MERS),7 to Aurora—was void because MERS never properly held the mortgage. (Culhanesupra, 708 F.3d at pp. 286-288, 291.)
        Before addressing the merits of the plaintiff's allegations, the Culhane court considered Aurora's contention the plaintiff lacked standing to challenge the assignment of her mortgage from MERS to Aurora. On this question, the court first concluded the plaintiff had a sufficient personal stake in the outcome, having shown a concrete and personalized injury resulting from the challenged assignment: "The action challenged here relates to Aurora's right to foreclose by
Page 14
virtue of the assignment from MERS. The identified harm—the foreclosure—can be traced directly to Aurora's exercise of the authority purportedly delegated by the assignment." (Culhanesupra, 708 F.3d at pp. 289-290.)
        Culhane next considered whether the prudential principle that a litigant should not be permitted to assert the rights and interest of another dictates that borrowers lack standing to challenge mortgage assignments as to which they are neither parties nor third party beneficiaries. (Culhanesupra, 708 F.3d at p. 290.) Two aspects of Massachusetts law on nonjudicial foreclosure persuaded the court such a broad rule is unwarranted. First, only the mortgagee (that is, the original lender or its assignee) may exercise the power of sale,8and the borrower is entitled to relief from foreclosure by an unauthorized party. (Culhane, at p. 290.) Second, in a nonjudicial foreclosure the borrower has no direct opportunity to challenge the foreclosing entity's authority in court. Without standing to sue for relief from a wrongful foreclosure, "a Massachusetts mortgagor would be deprived of a means to assert her legal protections . . . ." (Ibid.) These considerations led the Culhane court to conclude "a mortgagor has standing to challenge the assignment of a mortgage on her home to the extent that such a challenge is necessary to contest a foreclosing entity's status qua mortgagee." (Id. at p. 291.)
        The court immediately cautioned that its holding was limited to allegations of a void transfer. If, for example, the assignor had no interest to assign or had no authority to make the particular assignment, "a challenge of this sort would be sufficient to refute an assignee's status qua mortgagee." (Culhanesupra, 708 F.3d at p. 291.) But where the alleged defect in an assignment would "render it
Page 15
merely voidable at the election of one party but otherwise effective to pass legal title," the borrower has no standing to challenge the assignment on that basis. (Ibid.)9
        In Reinagel, upon which the Glaski court also relied, the federal court held that under Texas law borrowers defending against a judicial foreclosure have standing to " 'challenge the chain of assignments by which a party claims a right to foreclose.' " (Reinagel,supra, 735 F.3d at p. 224.) Though Texas law does not allow a nonparty to a contract to enforce the contract unless he or she is an intended third-party beneficiary, the borrowers in this situation "are not attempting to enforce the terms of the instruments of assignment; to the contrary, they urge that the assignments are void ab initio." (Id. at p. 225.)
        Like CulhaneReinagel distinguished between defects that render a transaction void and those that merely make it voidable at a party's behest. "Though 'the law is settled' in Texas that an obligor cannot defend against an assignee's efforts to enforce the obligation on a ground that merely renders the assignment voidable at the election of the assignor, Texas courts follow the majority rule that the obligor may defend 'on any ground which renders the assignment void.' " (Reinagelsupra, 735 F.3d at p. 225.) The contrary rule would allow an institution to foreclose on a borrower's property "though it is not a valid party to the deed of trust or promissory note . . . ." (Ibid.)10
Page 16
        Jenkins, on which the Court of Appeal below relied, was decided close in time to Glaski (neither decision discusses the other) but reaches the opposite conclusion on standing. In Jenkins, the plaintiff sued to prevent a foreclosure sale that had not yet occurred, alleging the purported beneficiary who sought the sale held no security interest because a purported transfer of the loan into a securitized trust was made in violation of the pooling and servicing agreement that governed the investment trust. (Jenkinssupra, 216 Cal.App.4th at pp. 504-505.)
        The appellate court held a demurrer to the plaintiff's cause of action for declaratory relief was properly sustained for two reasons. First, Jenkins held California law did not permit a "preemptive judicial action[] to challenge the right, power, and authority of a foreclosing 'beneficiary' or beneficiary's 'agent' to initiate and pursue foreclosure." (Jenkinssupra, 216 Cal.App.4th at p. 511.) Relying primarily on Gomes vCountrywide Home LoansInc(2011) 192 Cal.App.4th 1149Jenkins reasoned that such preemptive suits are inconsistent with California's comprehensive statutory scheme for nonjudicial foreclosure; allowing such a lawsuit " 'would fundamentally undermine the nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for the purpose of delaying valid foreclosures.' " (Jenkins, at p. 513, quoting Gomes at p. 1155.)
        This aspect of Jenkins, disallowing the use of a lawsuit to preempt a nonjudicial foreclosure, is not within the scope of our review, which is limited to a
Page 17
borrower's standing to challenge an assignment in an action seeking remedies for wrongful foreclosure. As framed by the proceedings below, the concrete question in the present case is whether plaintiff should be permitted to amend her complaint to seek redress, in a wrongful foreclosure count, for the trustee's sale that has already taken place. We do not address the distinct question of whether, or under what circumstances, a borrower may bring an action for injunctive or declaratory relief to prevent a foreclosure sale from going forward.
        Second, as an alternative ground, Jenkins held a demurrer to the declaratory relief claim was proper because the plaintiff had failed to allege an actual controversy as required by Code of Civil Procedure section 1060. (Jenkinssupra, 216 Cal.App.4th at p. 513.) The plaintiff did not dispute that her loan could be assigned or that she had defaulted on it and remained in arrears. (Id. at p. 514.) Even if one of the assignments of the note and deed of trust was improper in some respect, the appellate court reasoned, "Jenkins is not the victim of such invalid transfer[] because her obligations under the note remained unchanged. Instead, the true victim may be an individual or entity that believes it has a present beneficial interest in the promissory note and may suffer the unauthorized loss of its interest in the note." (Id. at p. 515.) In particular, the plaintiff could not complain about violations of the securitized trust's transfer rules: "As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, Jenkins lacks standing to enforce any agreements, including the investment trust's pooling and servicing agreement, relating to such transactions." (Ibid.)
        For its conclusion on standing, Jenkins cited In re Correia (Bankr. 1st Cir. 2011) 452 B.R. 319. The borrowers in that case challenged a foreclosure on the ground that the assignment of their mortgage into a securitized trust had not been made in accordance with the trust's pooling and servicing agreement (PSA). (Id.
Page 18
at pp. 321-322.) The appellate court held the borrowers "lacked standing to challenge the mortgage's chain of title under the PSA." (Id. at p. 324.) Being neither parties nor third party beneficiaries of the pooling agreement, they could not complain of a failure to abide by its terms. (Ibid.)
        Jenkins also cited Herrera vFederal National Mortgage Assn(2012) 205 Cal.App.4th 1495, which primarily addressed the merits of a foreclosure challenge, concluding the borrowers had adduced no facts on which they could allege an assignment from MERS to another beneficiary was invalid. (Id. at pp. 1502-1506.) In reaching the merits, the court did not explicitly discuss the plaintiffs' standing to challenge the assignment. In a passage cited in Jenkins, however, the court observed that the plaintiffs, in order to state a wrongful foreclosure claim, needed to show prejudice, and they could not do so because the challenged assignment did not change their obligations under the note. (Herrera, at pp. 1507-1508.) Even if MERS lacked the authority to assign the deed of trust, "the true victims were not plaintiffs but the lender." (Id. at p. 1508.)
        On the narrow question before us—whether a wrongful foreclosure plaintiff may challenge an assignment to the foreclosing entity as void—we conclude Glaski provides a more logical answer than Jenkins. As explained in part I, ante, only the entity holding the beneficial interest under the deed of trust—the original lender, its assignee, or an agent of one of these—may instruct the trustee to commence and complete a nonjudicial foreclosure. (§ 2924, subd. (a)(1); Barrionuevo vChase BankN.A., supra, 885 F.Supp.2d at p. 972.) If a purported assignment necessary to the chain by which the foreclosing entity claims that power is absolutely void, meaning of no legal force or effect whatsoever (Colby vTitle Insand Trust Co., supra, 160 Cal. at p. 644; Rest.2d Contracts, § 7, com. a), the foreclosing entity has acted without legal authority by pursuing a trustee's sale,
Page 19
and such an unauthorized sale constitutes a wrongful foreclosure. (Barrionuevo vChase BankN.A., at pp. 973-974.)
        Like the Massachusetts borrowers considered in Culhane, whose mortgages contained a power of sale allowing for nonjudicial foreclosure, California borrowers whose loans are secured by a deed of trust with a power of sale may suffer foreclosure without judicial process and thus "would be deprived of a means to assert [their] legal protections" if not permitted to challenge the foreclosing entity's authority through an action for wrongful foreclosure. (Culhanesupra, 708 F.3d at p. 290.) A borrower therefore "has standing to challenge the assignment of a mortgage on her home to the extent that such a challenge is necessary to contest a foreclosing entity's status qua mortgagee" (id. at p. 291)—that is, as the current holder of the beneficial interest under the deed of trust. (Accord, Wilson v.HSBC Mortgage Servs., Inc. (1st Cir. 2014) 744 F.3d 1, 9 ["A homeowner in Massachusetts—even when not a party to or third party beneficiary of a mortgage assignment—has standing to challenge that assignment as void because success on the merits would prove the purported assignee is not, in fact, the mortgagee and therefore lacks any right to foreclose on the mortgage."].)11
        Jenkins and other courts denying standing have done so partly out of concern with allowing a borrower to enforce terms of a transfer agreement to which the borrower was not a party. In general, California law does not give a party
Page 20
personal standing to assert rights or interests belonging solely to others.12 (See Code Civ. Proc., § 367 [action must be brought by or on behalf of the real party in interest]; Jasmine NetworksIncvSuperior Court (2009) 180 Cal.App.4th 980, 992.) When an assignment is merely voidable, the power to ratify or avoid the transaction lies solely with the parties to the assignment; the transaction is not void unless and until one of the parties takes steps to make it so. A borrower who challenges a foreclosure on the ground that an assignment to the foreclosing party bore defects rendering it voidable could thus be said to assert an interest belonging solely to the parties to the assignment rather than to herself.
        When the plaintiff alleges a void assignment, however, the Jenkins court's concern with enforcement of a third party's interests is misplaced. Borrowers who challenge the foreclosing party's authority on the grounds of a void assignment "are not attempting to enforce the terms of the instruments of assignment; to the contrary, they urge that the assignments are void ab initio." (Reinagelsupra, 735 F.3d at p. 225; accord, Mruk vMortgage ElecRegistration Sys., Inc. (R.I. 2013) 82 A.3d 527, 536 [borrowers challenging an assignment as void "are not attempting to assert the rights of one of the contracting parties; instead, the homeowners are asserting their own rights not to have their homes unlawfully foreclosed upon"].)
        Unlike a voidable transaction, a void one cannot be ratified or validated by the parties to it even if they so desire. (Colby vTitle Ins.and Trust Co., supra, 160 Cal. at p. 644; Aronoff vAlbanesesupra, 446 N.Y.S.2d at p. 370.) Parties to
Page 21
a securitization or other transfer agreement may well wish to ratify the transfer agreement despite any defects, but no ratification is possible if the assignment is void ab initio. In seeking a finding that an assignment agreement was void, therefore, a plaintiff inYvanova's position is not asserting the interests of parties to the assignment; she is asserting her own interest in limiting foreclosure on her property to those with legal authority to order a foreclosure sale. This, then, is not a situation in which standing to sue is lacking because its "sole object . . . is to settle rights of third persons who are not parties." (Golden Gate Bridge etcDistvFelt (1931) 214 Cal. 308, 316.)
        Defendants argue a borrower who is in default on his or her loan suffers no prejudice from foreclosure by an unauthorized party, since the actual holder of the beneficial interest on the deed of trust could equally well have foreclosed on the property. As the Jenkins court put it, when an invalid transfer of a note and deed of trust leads to foreclosure by an unauthorized party, the "victim" is not the borrower, whose obligations under the note are unaffected by the transfer, but "an individual or entity that believes it has a present beneficial interest in the promissory note and may suffer the unauthorized loss of its interest in the note." (Jenkinssupra, 216 Cal.App.4th at p. 515; see also Siliga vMortgage Electronic Registration SystemsInc(2013) 219 Cal.App.4th 75, 85 [borrowers had no standing to challenge assignment by MERS where they do not dispute they are in default and "there is no reason to believe . . . the original lender would have refrained from foreclosure in these circumstances"]; Fontenot vWells Fargo BankN.A., supra, 198 Cal.App.4th at p. 272 [wrongful foreclosure plaintiff could not show prejudice from allegedly invalid assignment by MERS as the assignment "merely substituted one creditor for another, without changing her obligations under the note"].)
Page 22
        In deciding the limited question on review, we are concerned only with prejudice in the sense of an injury sufficiently concrete and personal to provide standing, not with prejudice as a possible element of the wrongful foreclosure tort. (See fn. 4, ante.) As it relates to standing, we disagree with defendants' analysis of prejudice from an illegal foreclosure. A foreclosed-upon borrower clearly meets the general standard for standing to sue by showing an invasion of his or her legally protected interests (Angelucci vCentury Supper Club(2007) 41 Cal.4th 160, 175)—the borrower has lost ownership to the home in an allegedly illegal trustee's sale. (See Culhanesupra, 708 F.3d at p. 289 [foreclosed-upon borrower has sufficient personal stake in action against foreclosing entity to meet federal standing requirement].) Moreover, the bank or other entity that ordered the foreclosure would not have done so absent the allegedly void assignment. Thus "[t]he identified harm—the foreclosure—can be traced directly to [the foreclosing entity's] exercise of the authority purportedly delegated by the assignment." (Culhane, at p. 290.)
        Nor is it correct that the borrower has no cognizable interest in the identity of the party enforcing his or her debt. Though the borrower is not entitled to object to an assignment of the promissory note, he or she is obligated to pay the debt, or suffer loss of the security, only to a person or entity that has actually been assigned the debt. (See Cockerell vTitle Ins& Trust Co., supra, 42 Cal.2d at p. 292 [party claiming under an assignment must prove fact of assignment].) The borrower owes money not to the world at large 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.
        It is no mere "procedural nicety," from a contractual point of view, to insist that only those with authority to foreclose on a borrower be permitted to do so. (Levitin, The Paper Chase: SecuritizationForeclosureand the Uncertainty of
Page 23
Mortgage Titlesupra, 63 Duke L.J. at p. 650.) "Such a view fundamentally misunderstands the mortgage contract. The mortgage contract is not simply an agreement that the home may be sold upon a default on the loan. Instead, it is an agreement that if the homeowner defaults on the loan, the mortgagee may sell the property pursuant to the requisite legal procedure." (Ibid., italics added and omitted.)
        The logic of defendants' no-prejudice argument implies that anyone, even a stranger to the debt, could declare a default and order a trustee's sale—and the borrower would be left with no recourse because, after all, he or she owed the debt to someone, though not to the foreclosing entity. This would be an "odd result" indeed. (Reinagelsupra, 735 F.3d at p. 225.) As a district court observed in rejecting the no-prejudice argument, "[b]anks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank's deed of trust." (Miller v.Homecomings FinancialLLC (S.D.Tex. 2012) 881 F.Supp.2d 825, 832.)
        Defendants note correctly that a plaintiff in Yvanova's position, having suffered an allegedly unauthorized nonjudicial foreclosure of her home, need not now fear another creditor coming forward to collect the debt. The home can only be foreclosed once, and the trustee's sale extinguishes the debt. (Code Civ. Proc., § 580d; Dreyfuss vUnion Bank of Californiasupra, 24 Cal.4th at p. 411.) But as the Attorney General points out in her amicus curiae brief, a holding that anyone may foreclose on a defaulting home loan borrower would multiply the risk for homeowners that they might face a foreclosure at some point in the life of their loans. The possibility that multiple parties could each foreclose at some time, that is, increases the borrower's overall risk of foreclosure.
Page 24
        Defendants suggest that to establish prejudice the plaintiff must allege and prove that the true beneficiary under the deed of trust would have refrained from foreclosing on the plaintiff's property. Whatever merit this rule would have as to prejudice as an element of the wrongful foreclosure tort, it misstates the type of injury required for standing. A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity's hands. No more is required for standing to sue. (Angelucci vCentury Supper Clubsupra, 41 Cal.4th at p. 175.)
        Neither Caulfield vSanders (1861) 17 Cal. 569 nor Seidell vTuxedo Land Co. (1932) 216 Cal. 165, upon which defendants rely, holds or implies a home loan borrower may not challenge a foreclosure by alleging a void assignment. In the first of these cases, we held a debtor on a contract for printing and advertising could not defend against collection of the debt on the ground it had been assigned without proper consultation among the assigning partners and for nominal consideration: "It is of no consequence to the defendant, as it in no respect affects his liability, whether the transfer was made at one time or another, or with or without consideration, or by one or by all the members of the firm." (Caulfield vSanders, at p. 572.) In the second, we held landowners seeking to enjoin a foreclosure on a deed of trust to their land could not do so by challenging the validity of an assignment of the promissory note the deed of trust secured. (Seidell vTuxedo Land Co., at pp. 166, 169-170.) We explained that the assignment was made by an agent of the beneficiary, and that despite the landowner's claim the agent lacked authority for the assignment, the beneficiary "is not now complaining." (Id. at p. 170.) Neither decision discusses the distinction between allegedly void and merely voidable, and neither negates a borrower's ability to challenge an assignment of his or her debt as void.
Page 25
        For these reasons, we conclude Glaskisupra, 218 Cal.App.4th 1079, was correct to hold a wrongful foreclosure plaintiff has standing to claim the foreclosing entity's purported authority to order a trustee's sale was based on a void assignment of the note and deed of trustJenkinssupra, 216 Cal.App.4th 497, spoke too broadly in holding a borrower lacks standing to challenge an assignment of the note and deed of trust to which the borrower was neither a party nor a third party beneficiary. Jenkins's rule may hold as to claimed defects that would make the assignment merely voidable, but not as to alleged defects rendering the assignment absolutely void.13
        In embracing Glaski's rule that borrowers have standing to challenge assignments as void, but not as voidable, we join several courts around the nation. (Wilson vHSBC Mortgage Servs., Inc., supra, 744 F.3d at p. 9; Reinagelsupra, 735 F.3d at pp. 224-225;Woods vWells Fargo BankN.A. (1st Cir. 2013) 733 F.3d 349, 354; Culhanesupra, 708 F.3d at pp. 289-291; Miller vHomecomings FinancialLLCsupra, 881 F.Supp.2d at pp. 831-832; Bank of America NatAssnvBassman FBTLLCsupra, 981 N.E.2d at pp. 7-8; Pike vDeutsche Bank NatTrust Co. (N.H. 2015) 121 A.3d 279, 281; Mruk vMortgage ElecRegistration Sys., Inc., supra, 82 A.3d at pp. 534-536; Dernier vMortgage NetworkInc. (Vt. 2013) 87 A.3d 465, 473.)  Indeed, as commentators on the issue have stated: "[C]ourts generally permit challenges to assignments if such challenges would prove that the assignments were void as opposed to voidable." (Zacks & Zacks,
Page 26
Not a Party: Challenging Mortgage Assignments (2014) 59 St. Louis U. L.J. 175, 180.)
        That several federal courts applying California law have, largely in unreported decisions, agreed with Jenkins and declined to follow Glaski does not alter our conclusion. Neither Khan vRecontrust Co. (N.D.Cal. 2015) 81 F.Supp.3d 867 nor Flores vEMC Mort.Co. (E.D.Cal. 2014) 997 F.Supp.2d 1088 adds much to the discussion. In Khan, the district court found the borrower, as a nonparty to the pooling and servicing agreement, lacked standing to challenge a foreclosure on the basis of an unspecified flaw in the loan's securitization; the court's opinion does not discuss the distinction between a void assignment and a merely voidable one. (Khan v.Recontrust Co., supra, 81 F.Supp.3d at pp. 872-873.) In Flores, the district court, considering a wrongful foreclosure complaint that lacked sufficient clarity in its allegations including identification of the assignment or assignments challenged, the district court quoted and followed Jenkins's reasoning on the borrower's lack of standing to enforce an agreement to which he or she is not a party, without addressing the application of this reasoning to allegedly void assignments. (Flores vEMC MortCo., supra, at pp. 1103-1105.)
        Similarly, the unreported federal decisions applying California law largely fail to grapple with Glaski's distinction between void and voidable assignments and tend merely to repeat Jenkins's arguments that a borrower, as a nonparty to an assignment, may not enforce its terms and cannot show prejudice when in default on the loan, arguments we have found insufficient with regard to allegations of void assignments. While unreported federal court decisions may be cited in California as persuasive authority (Kan vGuild Mortgage Co.(2014) 230 Cal.App.4th 736, 744, fn. 3), in this instance they lack persuasive value.
Page 27
        Defendants cite the decision in Rajamin vDeutsche Bank NatTrust Co. (2nd Cir. 2014) 757 F.3d 79 (Rajamin), as a "rebuke" of GlaskiRajamin's expressed disagreement with Glaski, however, was on the question whether, under New York law, an assignment to a securitized trust made after the trust's closing date is void or merely voidable. (Rajamin, at p. 90.) As explained earlier, that question is outside the scope of our review and we express no opinion as to Glaski's correctness on the point.
        The Rajamin court did, in an earlier discussion, state generally that borrowers lack standing to challenge an assignment as violative of the securitized trust's pooling and servicing agreement (Rajaminsupra, 757 F.3d at pp. 85-86), but the court in that portion of its analysis did not distinguish between void and voidable assignments. In a later portion of its analysis, the court "assum[ed] that 'standing exists for challenges that contend that the assigning party never possessed legal title,' " a defect the plaintiffs claimed made the assignments void (id. at p. 90), but concluded the plaintiffs had not properly alleged facts to support their voidness theory (id. at pp. 90-91).
        Nor do Kan vGuild Mortgage Co., supra, 230 Cal.App.4th 736, and Siliga vMortgage Electronic Registration SystemsInc., supra, 219 Cal.App.4th 75 (Siliga), which defendants also cite, persuade us Glaski erred in finding borrower standing to challenge an assignment as void. The Kan court distinguished Glaski as involving a postsale wrongful foreclosure claim, as opposed to the preemptive suits involved in Jenkins and Kan itself. (Kan, at pp. 743-744.) On standing, the Kan court noted the federal criticism of Glaski and our grant of review in the present case, but found "no reason to wade into the issue of whether Glaski was correctly decided, because the opinion has no direct applicability to this preforeclosure action." (Kan, at p. 745.)
Page 28
        Siliga, similarly, followed Jenkins in disapproving a preemptive lawsuit. (Siligasupra, 219 Cal.App.4th at p. 82.) Without discussing Glaski, the Siliga court also held the borrower plaintiffs failed to show any prejudice from, and therefore lacked standing to challenge, the assignment of their deed of trust to the foreclosing entity. (Siliga, at p. 85.) As already explained, this prejudice analysis misses the mark in the wrongful foreclosure context. When a property has been sold at a trustee's sale at the direction of an entity with no legal authority to do so, the borrower has suffered a cognizable injury.
        In further support of a borrower's standing to challenge the foreclosing party's authority, plaintiff points to provisions of the recent legislation known as the California Homeowner Bill of Rights, enacted in 2012 and effective only after the trustee's sale in this case. (See Leuras vBAC Home Loans ServicingLP (2013) 221 Cal.App.4th 49, 86, fn. 14.)14 Having concluded without reference to this legislation that borrowers do have standing to challenge an assignment as void, we need not decide whether the new provisions provide additional support for that holding.
Page 29
        Plaintiff has alleged that her deed of trust was assigned to the Morgan Stanley investment trust in December 2011, several years after both the securitized trust's closing date and New Century's liquidation in bankruptcy, a defect plaintiff claims renders the assignment void. Beyond their general claim a borrower has no standing to challenge an assignment of the deed of trust, defendants make several arguments against allowing plaintiff to plead a cause of action for wrongful foreclosure based on this allegedly void assignment.
        Principally, defendants argue the December 2011 assignment of the deed of trust to Deutsche Bank, as trustee for the investment trust, was merely "confirmatory" of a 2007 assignment that had been executed in blank (i.e., without designation of assignee) when the loan was added to the trust's investment pool. The purpose of the 2011 recorded assignment, defendants assert, was merely to comply with a requirement in the trust's pooling and servicing agreement that documents be recorded before foreclosures are initiated. An amicus curiae supporting defendants' position asserts that the general practice in home loan securitization is to initially execute assignments of loans and mortgages or deeds of trust to the trustee in blank and not to record them; the mortgage or deed of trust is subsequently endorsed by the trustee and recorded if and when state law requires. (See Rajaminsupra, 757 F.3d at p. 91.) This claim, which goes not to the legal issue of a borrower's standing to sue for wrongful foreclosure based on a void assignment, but rather to the factual question of when the assignment in this case was actually made, is outside the limited scope of our review. The same is true of defendants' remaining factual claims, including that the text of the investment trust's pooling and servicing agreement demonstrates plaintiff's deed of trust was assigned to the trust before it closed.
Page 30
        We conclude a home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legitimate authority to order a trustee's sale. The Court of Appeal took the opposite view and, solely on that basis, concluded plaintiff could not amend her operative complaint to plead a cause of action for wrongful foreclosure. We must therefore reverse the Court of Appeal's judgment and allow that court to reconsider the question of an amendment to plead wrongful foreclosure. We express no opinion on whether plaintiff has alleged facts showing a void assignment, or on any other issue relevant to her ability to state a claim for wrongful foreclosure.
Page 31
        The judgment of the Court of Appeal is reversed and the matter is remanded to that court for further proceedings consistent with our opinion.
Page 32
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Yvanova v. New Century Mortgage Corporation
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 226 Cal.App.4th 495
Rehearing Granted
Opinion No. S218973
Date Filed: February 18, 2016
Court: Superior
County: Los Angeles
Judge: Russell S. Kussman
Tsvetana Yvanova, in pro. per.; Law Offices of Richard L. Antognini and Richard L. Antognini for Plaintiff and Appellant.
Law Office of Mark F. Didak and Mark F. Didak as Amici Curiae on behalf of Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Nicklas A. Akers, Assistant Attorney General, Michele Van Gelderen and Sanna R. Singer, Deputy Attorneys General, for Attorney General of California as Amicus Curiae on behalf of Plaintiff and Appellant.
Lisa R. Jaskol; Kent Qian; and Hunter Landerholm for Public Counsel, National Housing Law Project and Neighborhood Legal Services of Los Angeles County as Amici Curiae on behalf of Plaintiff and Appellant.
The Sturdevant Law Firm and James C. Sturdevant for National Association of Consumer Advocates and National Consumer Law Center as Amici Curiae on behalf of Plaintiff and Appellant.
The Arkin Law Firm, Sharon J. Arkin; Arbogast Law and David M. Arbogast for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.
Houser & Allison, Eric D. Houser, Robert W. Norman, Jr., Patrick S. Ludeman; Bryan Cave, Kenneth Lee Marshall, Nafiz Cekirge, Andrea N. Winternitz and Sarah Samuelson for Defendants and Respondents.
Pfeifer & De La Mora and Michael R. Pfeifer for California Mortgage Bankers Association as Amicus Curiae on behalf of Defendants and Respondents.
Denton US and Sonia Martin for Structured Finance Industry Group, Inc., as Amicus Curiae on behalf of Defendants and Respondents.
Goodwin Proctor, Steven A. Ellis and Nicole S. Tate-Naghi for California Bankers Association as Amicus Curiae on behalf of Defendants and Respondents.
Wright, Finlay & Zak and Jonathan D. Fink for American Legal & Financial Network and United Trustees Association as Amici Curiae on behalf of Defendants and Respondents.
Page 33
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard L. Antognini
Law Offices of Richard L. Antognini
2036 Nevada City Highway, Suite 636
Grass Valley, CA 95945-7700
(916) 295-4896
Kenneth Lee Marshall
Bryan Cave
560 Mission Street, Suite 2500
San Francisco, CA 94105
(415) 675-3400
        1. The superior court granted defendants' request for judicial notice of the recorded deed of trust, assignment of the deed of trust, substitution of trustee, notices of default and of trustee's sale, and trustee's deed upon sale. The existence and facial contents of these recorded documents were properly noticed in the trial court under Evidence Code sections 452, subdivisions (c) and (h), and 453. (See Fontenot vWells Fargo BankN.A(2011) 198 Cal.App.4th 256, 264-266.) Under Evidence Code section 459, subdivision (a), notice by this court is therefore mandatory. We therefore take notice of their existence and contents, though not of disputed or disputable facts stated therein. (See Glaski vBank of America (2013) 218 Cal.App.4th 1079, 1102.)
        2. All further unspecified statutory references are to the Civil Code.
        3. Somewhat confusingly, both the purported assignee's authority to foreclose and the borrower's ability to challenge that authority have been framed as questions of "standing." (See, e.g., Levitin, The Paper Chase: SecuritizationForeclosureand the Uncertainty of Mortgage Titlesupra, 63 Duke L.J. at p. 644 [discussing purported assignee's "standing to foreclose"]; Jenkinssupra, 216 Cal.App.4th at p. 515 [borrower lacks "standing to enforce [assignment] agreements" to which he or she is not a party]; Bank of America NatAssnvBassman FBTLLC (Ill.App. Ct. 2012) 981 N.E.2d 1, 7 ["Each party contends that the other lacks standing."].) We use the term here in the latter sense of a borrower's legal authority to challenge the validity of an assignment.
        4. It has been held that, at least when seeking to set aside the foreclosure sale, the plaintiff must also show prejudice and a tender of the amount of the secured indebtedness, or an excuse of tender. (Chavez vIndymac Mortgage Servicessupra, 219 Cal.App.4th at p. 1062.) Tender has been excused when, among other circumstances, the plaintiff alleges the foreclosure deed is facially void, as arguably is the case when the entity that initiated the sale lacked authority to do so. (Ibid.; In re Cedano (Bankr. 9th Cir. 2012) 470 B.R. 522, 529-530; Lester vJ.PMorgan Chase Bank (N.D.Cal. 2013) 926 F.Supp.2d 1081, 1093; Barrionuevo v.Chase BankN.A., supra, 885 F.Supp.2d 964, 969-970.) Our review being limited to the standing question, we express no opinion as to whether plaintiff Yvanova must allege tender to state a cause of action for wrongful foreclosure under the circumstances of this case. Nor do we discuss potential remedies for a plaintiff in Yvanova's circumstances; at oral argument, plaintiff's counsel conceded she seeks only damages. As to prejudice, we do not address it as an element of wrongful foreclosure. We do, however, discuss whether plaintiff has suffered a cognizable injury for standing purposes.
        5. The mortgage securitization process has been concisely described as follows: "To raise funds for new mortgages, a mortgage lender sells pools of mortgages into trusts created to receive the stream of interest and principal payments from the mortgage borrowers. The right to receive trust income is parceled into certificates and sold to investors, called certificateholders. The trustee hires a mortgage servicer to administer the mortgages by enforcing the mortgage terms and administering the payments. The terms of the securitization trusts as well as the rights, duties, and obligations of the trustee, seller, and servicer are set forth in a Pooling and Servicing Agreement ('PSA')." (BlackRock Financial MgmtvAmbac AssurCorp. (2d Cir. 2012) 673 F.3d 169, 173.)
        6. The version of Reinagel cited in Glaski, published at 722 F.3d 700, was amended on rehearing and superseded by Reinagelsupra, 735 F.3d 220.
        7. As the Culhane court explained, MERS was formed by a consortium of residential mortgage lenders and investors to streamline the transfer of mortgage loans and thereby facilitate their securitization. A member lender may name MERS as mortgagee on a loan the member originates or owns; MERS acts solely as the lender's "nominee," having legal title but no beneficial interest in the loan. When a loan is assigned to another MERS member, MERS can execute the transfer by amending its electronic database. When the loan is assigned to a nonmember, MERS executes the assignment and ends its involvement. (Culhanesupra, 708 F.3d at p. 287.)
        8. Massachusetts General Laws chapter 183, section 21, similarly to our Civil Code section 2924, provides that the power of sale in a mortgage may be exercised by "the mortgagee or his executors, administrators, successors or assigns."
        9. On the merits, the Culhane court rejected the plaintiff's claim that MERS never properly held her mortgage, giving her standing to challenge the assignment from MERS to Aurora as void (Culhanesupra, 708 F.3d at p. 291); the court held MERS's role as the lender's nominee allowed it to hold and assign the mortgage under Massachusetts law. (Id. at pp. 291-293.)
        10. The Reinagel court nonetheless rejected the plaintiffs' claim of an invalid assignment after the closing date of a securitized trust, observing they could not enforce the terms of trust because they were not intended third-party beneficiaries. The court's holding appears, however, to rest at least in part on its conclusion that a violation of the closing date "would not render the assignments void" but merely allow them to be avoided at the behest of a party or third-party beneficiary. (Reinagelsupra, 735 F.3d at p. 228.) As discussed above in relation to Glaski, that question is not within the scope of our review.
        11. We cite decisions on federal court standing only for their persuasive value in determining what California standing law should be, without any assumption that standing in the two systems is identical. The California Constitution does not impose the same " 'case-or-controversy' " limit on state courts' jurisdiction as article III of the United States Constitution does on federal courts. (Grosset vWenaas (2008) 42 Cal.4th 1100, 1117, fn. 13.)
        12. In speaking of personal standing to sue, we set aside such doctrines as taxpayer standing to seek injunctive relief (see Code Civ. Proc., § 526a) and " ' "public right/public duty" ' " standing to seek a writ of mandate (see Save the Plastic Bag Coalition vCity of Manhattan Beach (2011) 52 Cal.4th 155, 166).
        13. We disapprove Jenkins vJPMorgan Chase BankN.A., supra, 216 Cal.App.4th 497Siliga vMortgage Electronic Registration SystemsInc., supra, 219 Cal.App.4th 75Fontenot vWells Fargo BankN.A., supra, 198 Cal.App.4th 256, and Herrera vFederal National Mortgage Assn., supra, 205 Cal.App.4th 1495, to the extent they held borrowers lack standing to challenge an assignment of the deed of trust as void.
        14. Plaintiff cites newly added provisions that prohibit any entity from initiating a foreclosure process "unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest" (§ 2924, subd. (a)(6)); require the loan servicer to inform the borrower, before a notice of default is filed, of the borrower's right to request copies of any assignments of the deed of trust "required to demonstrate the right of the mortgage servicer to foreclose" (§ 2923.55, subd. (b)(1)(B)(iii)); and require the servicer to ensure the documentation substantiates the right to foreclose (§ 2924.17, subd. (b)). The legislative history indicates the addition of these provisions was prompted in part by reports that nonjudicial foreclosure proceedings were being initiated on behalf of companies with no authority to foreclose. (See Sen. Rules Com., Conference Rep. on Sen. Bill No. 900 (2011-2012 Reg. Sess.) as amended June 27, 2012, p. 26.)

        *. Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.