HOLMES v. HSBC | Judge RUBIN lays it out again in CA Court of Appeal dissension
Because Holmes has stated facts, subject to development through discovery and proof at trial, sufficient to support a cause of action for wrongful foreclosure, I would reverse the trial court’s order sustaining the demurrer.
Originally posted on10 January 2014:http://stopforeclosurefraud.com/2014/01/10/holmes-v-hsbc-judge-rubin-lays-it-out-again-in-ca-court-of-appeal-dissention/
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DENNIS RICKY HOLMES,
Plaintiff and Appellant,
HSBC BANK USA et al.,
Defendants and Respondents.
RUBIN, J. – Dissenting
I respectfully dissent.
When appellant Dennis Ricky Holmes borrowed $1 million from Countrywide Home Loans, Inc., he gave Countrywide a promissory note. To secure repayment of his debt to Countrywide, he also signed a deed of trust on his Los Angeles home. As of the filing of his complaint, Holmes alleged that now-defunct Countrywide had not assigned or transferred his promissory note or deed of trust to anyone, including respondent HSBC Bank USA, N.A. or J.P. Morgan Alternative Loan Trust 2007-A1 for which HSBC is trustee. Thus, as the record stands in reviewing a demurrer, lender Countrywide appears to continue to own appellant’s note and the security interest under which he owes payments.
Under the loan and deed of trust, only Countrywide (or its successors or assignees) can declare Holmes’s loan in default. Paragraph 22 of the deed of trust states: “Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration . . . . If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured . . . and may invoke the power of sale and any other remedies . . . . If Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a written notice of the occurrence of an event of default and of Lender’s election to cause the Property to be sold. Trustee shall cause this notice to be recorded . . . .” Continue reading the entire blog article about this case here.