I received a lot of traffic and phone calls from attorneys in other jurisdictions regarding my comment on the Glaski case. I found the PSA on EDGAR. Glaski’s loan isn’t even in a New York Trust. It is in a Delaware trust. How the hell do you miss that? The first page of the PSA states that the trust is a Delaware entity. Section 10 “Choice of Laws” states that the trust was formed pursuant to Delaware law.
Nonetheless, the entire decision was based upon an interpretation of New York’s EPTL 7-2.4. It is a great decision and a fairly accurate analysis of the facts and the law. Except New York law doesn’t apply to Glaski’s loan. Appellate courts can only review what is in the record. If it isn’t raised at the trial level the Appellate court has no jurisdiction to review it. The bank can’t appeal the case further to the California Supreme Court as there was a finding of fact regarding the controlling (New York) law that was never challenged at the trial level.
It is not a court’s job to verify the accuracy of the facts presented. That is the attorneys’ job. The Court did not do anything wrong. No error. As far as Glaski is concerned I believe his foreclosure is over for now. The bank is going to have to figure out how they are going to foreclose or if they can ever foreclose. The end result is that Glaski will probably stand and California attorneys representing homeowners have a lot to cheer about.
The bank lawyer(s) that worked on the case did not do their homework. I would bet that not one person on the bank’s litigation team ever read a single PSA in their entire careers. They were either lazy and/or careless. Arrogance will do that to you. This is understandable in California because the courts there let the bank attorneys use homeowners for target practice. Maybe, hopefully, Glaski will change that.
Charles Wallshein, Esq.