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92 CALIFORNIA Ten-X Announces Partnership With CCIM Institute Ten-X (formerly Auction.com), an online marketplace for real estate, recently announced that it has formed a partnership with Certified Commercial Investment Member (CCIM) Institute. According to the Ten-X, the partnership is designed to educate the institute's members on how to use the Ten-X platform to market to their advantage and transact commercial properties online. "In forming a partnership with CCIM Institute, we aim to empower the thousands of CCIM members with the knowledge and tools to build their book of business and more efficiently transact commercial properties by harnessing the power of the Ten-X platform," said Yan Khamish, Managing Director of Ten- X's Brokerage Channel. "CCIM Institute is an ideal partner for us, as it offers the most robust educational offerings for commercial real estate professionals and is at the forefront of promot- ing the industry's adoption of technology-based solutions that improve the commercial transac- tion process for brokers and their clients." To date, Ten-X has facilitated $14 billion in commercial sales, with more than $300 million in commission fees paid to brokers. In total, the company's combined residential and com- mercial sales have grown rapidly to account for $37 billion, with $8.5 billion in 2015 alone. "e role of technology in the real estate process represents an undeniable and necessary advancement in our industry, and we believe that Ten-X is at the leading edge of this evolu- tion," said 2016 CCIM Institute President Steven Moreira. "rough our partnership, we'll be offering sophisticated resources that will provide brokers with a distinct competi- tive advantage in this ever-changing industry landscape, helping them to gain greater visibil- ity and increase their transaction volume." e CCIM designation, or Certified Com- mercial Investment Member, is a recognition of elite proficiency in the practical imple- mentation of commercial and investment real estate transactions. Awarded by CCIM Insti- tute, the prestigious certification grants access to a network of more than 10,000 leaders in the brokerage, appraisal, investment counsel- ing, development, lending, and real estate law industries. Yvanova: Borrowers Achieve Limited Victory in the California Supreme Court By: Kerry W. Franich After two years of waiting, on February 18, 2016, the California Supreme Court issued its decision in Yvanova v. New Century Mortgage Co., No. S218972. A dud on arrival, the decision resolves only one exceedingly narrow issue— that a foreclosed California borrower now has standing to sue for wrongful foreclosure based on a claim that an assignment of the loan and beneficial interest in the deed of trust was absolutely void, not merely voidable. A void assignment, the Court reasoned, deprives a foreclosing party of any legitimate authority to complete a nonjudicial foreclosure sale. 1 At first glance, this holding may appear formidable and disheartening to servicers. To be sure, Yvanova will no doubt invite more bor- rower lawsuits attacking the validity of nonjudi- cial foreclosure sales on the ground that earlier assignments were void. However, Yvanova is no insurmountable obstacle. A few considerations for servicers and their outside counsel: Yvanova Is A Narrow Holding at Leaves Many Defenses Intact. e Supreme Court's opinion is far narrower than its holding sug- gests. Indeed, the Supreme Court emphasized the opinion's limited scope no less than nine times throughout the opinion. 2 For example, although the opinion holds that borrowers have standing to challenge non- judicial foreclosure sales where the assignments were supposedly void, the Supreme Court stopped short of explaining what facts might render an assignment void. Importantly, the vast majority of wrongful securitization lawsuits assert that an assign- ment was defective because it was accom- plished after a trust closing date—an event that . does not render an assignment void, at least as to trusts governed by New York law. 3 So, in many cases, although borrowers will now have standing to attack nonjudicial foreclosure sales on the basis that an assignment was void, their suit may still be subject to dismissal if the allegations or evidence prove that the assign- ment was merely voidable. 4 Yvanova carefully avoided answering whether a post-closing date transfer into a New York securitized trust is void or merely voidable. 5 Similarly, Yvanova deliberately avoided ad- dressing one of the most common grounds ser- vicers use to defeat meritless borrower lawsuits in California where the foreclosure sale has not yet occurred. As the Court put it, "[w]e 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." 6 So, where a nonjudicial foreclo- sure sale has not yet been completed, servicers may continue citing California authorities disapproving of speculative, pre-foreclosure attacks on a party's authority to foreclose. 7 Yvanova also avoided addressing Califor- nia's tender rule—an equitable rule that, with a few narrow exceptions, requires borrowers to tender the loan balance as a prerequisite to setting aside a completed nonjudicial foreclo- sure sale. 8 So, servicers may continue using that rule as a tool in defending borrower lawsuits predicated on defective assignments. Prepare for Arguments at Assignments Are Void. Since Yvanova does confer standing to borrowers who allege that assignments are void, borrowers now have a greater incentive to fashion their complaints to portray the assign- ments as the product of a forgery, or alterna- tively, a fraud in the execution or inception of the assignment. Either of those scenarios could render the assignment void. 9 So, prudent servicers will prepare themselves to disprove those sorts of allegations, and to explain how a recorded assignment differs from earlier unre- corded assignments that may have occurred— another issue Yvanova expressly dodged. 10 Evidence Is Now More Important. Since borrowers now have standing to assert causes of action arising from void assignments, more lawsuits will undoubtedly survive pleadings challenges. So, more cases will need to be disposed of through motions for summary judgment or trial, thereby making evidence far more important that it was before Yvanova was decided. Servicers that have grown accustomed to prevailing on demurrer should prepare for a shift in how wrongful securitization lawsuits are defended. People who signed assignments many years ago may now become important witnesses. What may have previously been an objection- able discovery request, may now be fair game. Yvanova undoubtedly affords borrow- ers a new right, but the opinion should not be viewed with derision, fright, or dismay. Standing is merely a threshold question, and borrowers' newly created right of standing says nothing of their lawsuits' substantive merit. 1 Yvanova v. New Century Mortgage Corp. (February 18, 2016; S218972) __ Cal.4th__ Slip Opn. at p. 2 ("Yvanova"). 2 Id. at pp. 2, 12, 13, 16, 17, 18, 27, and 29 (i.e., "Our ruling is a nar- row one.", "On the narrow question before us…", "We do not address the distinct question of…") 3 Rajamin v. Deutsche Bank Nat. Trust Co. (2nd Cir. 2014) 757 F.3d 79, 88-89. 4 A void contract is one without any legal effect, whereas a void- able contract is one that a party may subsequently ratify. (Yvanova, at p. 10.)

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