Glaski - Appellant's Opening Brief
Glaski - Appellant's Opening Brief
NO.
F064556
OF APPEAL
OF CALIFORNIA DISTRICT
APPELLATE
THOMAS Plaintiff
NATIONAL ASSOCIATION AS SUCCESSOR SALLE BANK N.A. AS TRUSTEE FOR WAMU SERIES 2005-AR-17", CHASE BANK, N.A., COMPANY,
MORTGAGE PASS THROUGH CERTIFICATES CHASE HOME FINANCE LLC, JPMORGAN AND CALIFORNIA Defendants RECONVEYANCE and Respondents.
Appeal Superior
from Court
of the County
OPENING Catarina
BRIEF M. Benitez
(CA Bar No. 075711) LAW OFFICES OF RICHARD ANTOGNINI 819 1 Street Lincoln, Telephone: Facsimile: E-Mail: California (916) (916) 95648-1742 645-7278 290-0539
(CA Bar No. 256518) LAW OFFICES OF CATARINA M. BENITEZ 2014 Fresno, Facsimile: Tulare Street, (559) (559) Suite 93721 472-7337 579-1100 400 California
Telephone:
ENTITIES knows of no
AND
interested
in this certificate
under California
of Court
25, 2012
LAW
OFFICES
OF
CATARINA
M. BENITEZ
-i-
TABLE
OF CONTENTS
Page I. INTRODUCTION II. A. B. STATEMENT Rules The Governing Original First OF FACTS Demurrers 1 1 1 2 5 9 Complaint Amended and Chase Complaint Agree to 12 15 16
Amended Amended
Second Demurrer
State Their
Settlement-JP Practices
OF APPEALABILITY
18 19 19
of Review Glaski to the Foreclosure. of a Wrongful Similar to Glaski's Foreclosure SAC Allow Claim. a Wrongful Foreclosure Trust Alleged Before that the Stated his Loan Was Sale, of Action Not His for
20
Transferred
Foreclosure a Cause
Complaint
Elements
20 25
-ii-
Page
(4) Glaski Has Alleged PrejudiceandDamage (5) Tenderis Not Required. C. Because Glaski Alleged His Loan was not Properly Transferred, and Because He Alleged the Brignac Signatureswere Forged, He StatedTwo Causesof Action for Fraud. (1) The First
(2) (3) D. Based Action, V. The Cause of Action for Fraud for Fraud
30 32 33
33 37 38
Second
Cause
of Action
Glaski Because on
Pleaded
40
Foreclosure
Causes
They
42 43
CERTIFICATE
-iii-
TABLE
OF AUTHORITIES Page California Cases 1101 (1996) 32 38, 39 24, 31, 35, 38
Savings National
Bank,
Assoc., Inc.,
th 218 (2011)
Engineering,
493 (1970)
Blank
v. Kirwan,
39 Cal.3d
24, 41 4O
Cel-Tech
Communications,
Cal.4 th 163 (1999) Curcini Dimock Evans v. County v. Emerald of Alameda, Properties, 164 Cal.App.4 LLC, th 629 (2008) 868 (1977) 2 33 1, 2 16 th 256 (2011) 27, 29 39 th 1149 LLP, (2011) Passim 21
81 Cal.App.4th
v. Wells v. World
Savings,
v. Morgan,
Lewis
v. Citibank,
Los Altos
El Granada
v. City of Capitola,
th 629 (2006) 119 Cal.App.4 & Crutcher, th 151 (2004) 37 Cal.App.4 th 1397 (1995) 39 2
-iv-
Page Moeller v. Lien, 25 Cal.App.4 th 822 (1994) 28, 29, 36 20, 22, 30, 32 Murillo Raglandv. (Cal. Satten v. FleetwoodEnterprises, U.S. BankNationalAssoc., Sept. 11, 2012) th 365 (2002) 31 Cal.4 th 1074 (2003) 2 19, 30, 38 32 lnc, 17 Cal.4 th 985 (1998) 2012 Cal.App. LEXIS 965 36 30, 35
Munger
v. Moore,
11 Cal.App.4
th 1 (1970)
99 Cal.App.4
Schifando
U.S.
Cold Storage
Western
Savings
& Loan
Association,
Day,
th 282 (2004)
39
v. Chase
Bank,
N.A.,
2012
LEXIS
109935
22,25
Cal. Aug.
6, 2012) Chase Bank, N.A., 2011 U.S. Dist. LEXIS 62152 26,40
v. JP Morgan 2,2011)
Cal. June
Chase
Bank,
N.A.,
2012
U.S.Dist.
LEXIS
128585
34
Registrations
Sys., lnc.,
2011
U.S.
Dist.
LEXIS
68007
22,26, 27 21,23
Tamburri (N.D.
v. Suntrust
Cal. Dec.
15, 2011)
-V-
Page Out of State U.S. Bank NationaI Assoc. v. Ibanez, California Business Business Civil Civil Civil Civil Civil Civil Code Code Code Code Code Code Code & Professions &Professions section section section section section section 1572 1708 1710 2923.6 2924 3517. section 436 (b) (a) (1) Code Code (3) section section Cases 40 (Mass. 201 I) 27
of Civil
Procedure
Code Code
section section
section
470 (d)
Rules
of Court 18, 19
Rule
8.104
-vi-
I.
INTRODUCTION
This appealasks:can a homeowner'scomplaint survive a demurrer when he has alleged that an investmenttrust lacked the power to foreclose becausethe homeowner's loan was not assignedto the trust before the foreclosure sale?
California have basic law The answer that any to that question prosecutes court must be yes, because must this
requires
party
that
to foreclose. when
Because
the trial
it sustained without
a demurrer leave to
to Thomas the
Second must be
Amended reversed. The foreclosure documents yes, because Because fraud, the
Complaint
amend,
judgment
asks when
a second the
question: could
can
a for be
foreclosure forged
contained
signatures?
answer
of forged
signatures
documents signatures
the judgment
must II.
OF FACTS
Rules Statement
Governing of Facts
Demurrers should be read against from demurrers. of all facts the background Like of the
governing appellate
the plaintiff
pleads
in his complaint.
of Berkeley,
38 Cal.4 th 1, 5 (2006);
of Alameda, as true
The from
all facts
complaint, v. Webb,
to
38 Cal.4 th at 5.
appellant
A. (Vo.
Glaski
("Glaski")
filed Appendix
his [or
complaint
on October
1 of Appellant's
of America
Through words
Certificates "WAMU
The
referred
to an investment La Salle
merged Home
defendants
included Company.
Finance
Reconveyance
00018-000020.) that in July Way. that 2 2005, he bought a home He paid a home in Fresno, $812,000 loan for
alleged
at 7741 (Ibid.)
E. Saginaw He financed
through
Washington $1700
Mutual
(Ibid.) to $1900
At first,
his loan
payments 2006
were and
per month.
per month
in August
then to $2100 Beginning modification. Loan N.A. that On LLC acquired Chase March was
in August
(Ibid.) 2008, Glaski these failed May talked to WaMu with about Chase Chase a loan Home Bank,
(Ibid.) him
for a loan
(1 AA acting a sale
Notice on May
sold at a foreclosure
(1bid.) Glaski charged a fixed loan for that the defendants rate loan. put him in an adjustable They attempted rate loan, also gave to state
when him
he could fraud,
causes
of action
of Civil a loan of
because
modification. argued
action
defendants of Glaski's
foreclose
because
they were
not holders 3
(1 AA 000027.)
Based on these allegations, Glaski filed an application for a temporary restraining order on October 6, 2009 to stop defendantsfrom evicting him from his home or transferring title. (1 AA 000032-000050.) Glaski's declaration in support of the TRO application stated that from March 1, 2009 to May, 2009, he was under the impressionthat Chasewas evaluating his loan modification request. (1 AA 000045.) It was not until after his homewas sold on May 27, 2009 that he first learnedthat the Bank of America apparentlyheld his note, as it hadbecomethe beneficiary under his deed of trust. (1bid.) The trial court denied the TRO application on October 5, 2009. (1 AA 000005.) On February 14, 2011, Chasefiled an answerto the complaint. (1 AA 000051-000055.) No other defendantanswered,including the Bank of America. (Ibid.) At the same time, all three defendants--Bank of
America, Chase and California ReconveyanceCompany--filed a motion for judgment on the pleadings, to be hard on March 10, 2011. (1
000056-000071.) fraud Much of this motion arguing attacked Glaski's claims Chase AA
liabilities
WaMu also
assets
000065-000067.) barred
contended claims.
various
statutes
of limitation
origination
000067-000069.)
Glaski filed opposition to this motion (1 AA 000075-000088), contendingthat none of the defendantsheld his note and thereforehad no power to foreclose. (1 AA 000080-000081.) Glaski also offered to amend the complaint to correct any deficiencies. (1 AA 000083).
2011, amend the trial court granted the motion, but gave title, The infliction Glaski wrongful court On March leave 30, to and causes and
30 days
of action
for fraud,
quiet
declaratory of action
(1 AA 000105-000110.) intentional
dismissed
of emotional
Complaint Complaint alleged causes relief, Law (1 AA (or "FAC") of action on April for fraud, 29, quiet
a First
The
Unfair
Code
section
17200
a single loan
exhibit, from
of Deed to Bank
JP Morgan
"as trustee (1 AA
for WaMu
on June signed
It was
by "Deborah
to be a
"Vice President"of"JP
Her signature The defendant, the FDIC.
Morgan
Chase
Bank,
National
Association."
(Ibid.)
(1 AA 000135.) Morgan Bank acquired FAC N.A. certain that ("JP assets Morgan") of WaMu was as from the a
000112.) trust
asserted
JP Morgan
trustee
Mortgage (1 AA
of residential
mortgages.
(Ibid.)
operated The
a "Pool
charged to
were
required
be
(1 AA the Trust
000117.) did
Unless
before under
not acquire
or any loan
(1bid.)
FAC
then
alleged Date."
trust
date
(1 AA did not
defendants
to foreclose. cause
(1 AA
of Trust
was forged.
AA 000118.)
purpose
of the forgery 6
to allow
the defendants
000119.)
Plaintiff
relied
on this
for fraud,
alleged
that
was transferred
believing
to power
to service
the
to negotiate Finance
MORGAN." The allegations forged power wrongful did not foreclosure fifth cause
(1 AA 000119.) third and cause contended of action that Glaski Brignac 000121.) these to quiet should and The title have because fourth incorporated title because they cause the above
of Deborah (1 AA repeated
because
power they
the tort
defendants
never
(1 AA 000123-000124.) eighth cause of action Sale, sought cancellation Deed to of the Upon Substitution Sale, based of on
Notice
allegation
power
foreclose.
(1 AA
000127-000128.) The ninth cause of action, for violation of the UCL, assertedthat defendantshad engaged in illegal and deceptive acts by forging Brignac's signature and by proceeding with the foreclosure sale without the power to do so. (1 AA 000128-000129.) Defendantsfiled a demurrer to the FAC on June 1, 2011. (1 AA 000137-000138.) They first argued that the fraud causesof action were barred by the statute of limitations. (1 AA 000144-000146.) They also contendedthat Glaski hadnot pled the fraudulentstatements with sufficient particularity. (Ibid.) They insisted Glaski could not sue to quiet title
becausehe no longer owned the homeandbecausehe had not tenderedthe balanceof the loan. (1 AA 000146.) Defendantsattackedthe wrongful foreclosure causeof action by arguing that Glaski had not alleged tender and becausethey believed the claim was based on Civil Code section 2923.6, which did not create a private causeof action. (1 AA 000147.) They said the declaratory relief cause of action failed because it was founded on the other invalid causesof action. (1 AA 000147-000148.) Finally, defendantschallengedthe UCL causeof action, contendingthat the foreclosuresale was proper and thus neither deceptivenor illegal. (1 AA 000148-000149.) In opposition, Glaski pointed out that defendantsmisconstruedhis fraud causesof action. The first causeof actionfor fraud was basedon the Brignac forged signature,and invoked the rule that a forged documentwas 8
void and fraudulent. (1 AA 000157-000158.) Next, becausethe Glaski loan was not properly transferredto the Trust, defendantsmisrepresented that they had the power to foreclose. (1 AA 000159-000160.) The same allegation supported the wrongful foreclosure cause of action, and the causesof action for declaratoryrelief, quiet title, andviolation of the UCL. '(1 AA 000160-000164.) The trial court struck the FAC "sua sponte" under Code of Civil Proceduresection436. (1 AA 000175.) It thought the FAC was unclear and confusing,but granted30 daysleave to amend. (Ibid.) It requiredan amendedcomplaint to state"ultimate facts," rather than legal conclusions. (1 AA 000179.) D. The SecondAmended Complaint
Glaski filed a SecondAmended Complaint on August 5, 2011. (1 AA 000182.) The SecondAmendedComplaint(or "SAC") statedthe same causes of action as the First
wrongful violation defendants. The the Glaski foreclosure, of the UCL. declaratory (1 AA Amended relief, Complaint--fraud, cancellation of It also quiet instruments, named the title, and same
000182-000204.)
000183.) and incorporated the Notice several of exhibits. the These June included 11, 2009 Sale,
attached of
Default, Notice
of Trustee's several
and
recorded
documents involving other properties. (1 AA 000207-000276.) These recorded documents,used by defendantsto foreclose other homes, had severalthings in common. First, they all were signedby DeborahBrignac. Second,eachsignaturewasdifferent; they could not havebeenmadeby the same person. (I AA 000247-000276.) Third, they showed that Ms. Brignac had multiple employers. Shewas representedto be an officer of California ReconveyanceCompany and JP Morgan. (Ibid.) Fourth, in
many cases,the signatureswere notarized, which meant that Ms. Brignac and the notary swore under penalty of perjury that the signatureswere actually madeby Ms. Brignac. (1bid.) The SAC's first cause of action for fraud identified the first fraudulent statementmade by the defendants--the signature of Deborah Brignac on the Notice of Trustee's Salewas authentic and that shewas an employee of JP Morgan. (1 AA 000189.) In reality, the signature was forged and Deborah Brignac was not employed by JP Morgan. (1 AA 000190.) The purpose of the fraud was "to conduct a Trustee's sale" of Glaski's home. (Ibid.) Plaintiff relied on the authenticity of Brignac's signature. (Ibid.) The secondcauseof action for fraud chargedthat defendantsdid not havethe power to foreclosebecausethe Glaski loan had not beenproperly transferredto the Trust. Paragraphs 45-49 stated:
10
"45. Plaintiff further believes and upon such belief alleges that the Note was not duly endorsed, transferredanddelivered to the Trust prior to the Closing Date of the Trust, as setforth in Section2.05of the Pooling and ServicingAgreement .... " 46. Plaintiff believes and upon such belief contends that Defendants Misrepresented and/or concealedthe true facts regarding the transfer of Plaintiff's Note andDeed of Trust.. by assigningthe Deed of Trust into the Trust... after the closing date. 47. Plaintiff is further informed and believes and thereon alleges that the Note in this case was never actually transferred or delivered by Washington Mutual . . . to the Depositor and by the Depositor to the Custodianon behalf of the Trusteefor the Trust prior to the closing date. 48. In addition, there is no indication that Plaintiff's loan was transferred into the trust pursuant to the PSA before the closing date, asit was not listed in any documentsfiled by the Trust and available to the public at www.edgar.gov.
Accordingly, never Trust. lawfully Plaintiff alleges and that the Note in this delivered case to was the negotiated physically
upon of Trust
belief,
the
days thereafter, had closed. not have pursuant thereby as well and could
the Trust Closing REMIC Subject Trustee's initio." Glaski of recording would cause
of Trust
the requirements foreclosure of Default, Upon added.) also knew authorization by Sale,
pleaded
actions
attempting
11
negotiatea loan modification with representatives of ChaseHome Finance, LLC, agentsof JPMORGAN." (Paragraph50 of the SAC, 1 AA 000191.) The secondcauseof actionconcluded: "Defendants intentionally mislead Plaintiff and engaging in material omissions by failing to disclose the true facts, including the fact that Defendantsconducted a non-judicial foreclosuresalewithout any right under the law by assigning the Deed of Trust after the date allowed pursuant to the Pooling and Servicing Agreement of the . . . Trust. In addition, Defendantsallowed the forged signaturesof CRC Vice President, Deborah Brignac to be placed on the Assignment of Deed of Trust and Notice of Trustee's Saleto effectuate a fraudulent foreclosure and Trustee's Sale of Plaintiff's primary residence." (Paragraph52 of the SAC, 1 AA 000192.) The SAC made identical allegations in the other causesof action, including the fourth causeof action for wrongful foreclosureandthe ninth causeof action for violation of the UCL. (1 AA 000194,000200.) Glaski sought compensatorydamages,punitive damages,and a reversal of
foreclosure E. sale. The (1 AA 000203.) Demurrer filed They not matter their to the demurrer that "there Second to the the Amended SAC forged is nothing Complaint 23,2011. of Deborah California law the
on September signature in
delegated
of alleging
not delegate
authority
12
sign her name: "[T]here is no allegation that Brignac had disavowedthe signaturesin question, nor is there any allegation showing that whoever would have signed on Brignac's behalf lacked the authority to sign on her behalf." (2 AA 000290.) Next, defendantsarguedthat "there is no requirementthat any party be a holder of the promissory note in order to enforcethe power of sale in
the deed it was after of trust once that home the borrower's the Glaski loan loan goes was into default." (Ibid.) Trust Thus, until
irrelevant Glaski's
to the
on
the
(2 AA
000290),
although
plead
Defendants documents--a Morgan the FDIC however, not rely bought took the
the
trial
court and
to take the
judicial
from
FDIC
which FDIC
assets
of Washington (2 AA 000305
WaMu. court
to 000352.) notice
on these Glaski
documents. the
opposed had
that (2
trial AA
courts
the power
to vacate then
a foreclosure showed
000388-000389). "[T]he
Glaski
reliance with
signature:
act of recording
instruments 13
fraudulent
signatures
sends notice to the public that Deborah Brignac actually signed" the foreclosuredocuments. (2 AA 000389-000390.) "These actsthereby lead Plaintiff andthe public to believethat the partiesin thesenameddocuments held the authority to initiate the Trustee'sSale of Plaintiff's property." (2 AA 000390.) "Plaintiff, having received the fraudulently signed
documents,relied on those documentsin believing . . . that the salewas lawfully conducted." (1bid.) Glaski alsopointed out that defendantshadcited no authority for the proposition that they could useforged signatureson recordeddocumentsto conducta foreclosure. (2 AA 000390-000391.) Glaski concludedthat "Defendantshaveyet to prove that they were either the lenderor beneficiary which would confer upon them the power to foreclose .... Thus,there is no entity with standingto enforcethe power of
sale. Even if the signaturesof DeborahBrignac are found to be legitimate signatures,the assignmentremainsineffective." (2 AA 000393.) Glaski presentedfurther argumentson reliance andhis damages.He lost his home, which defendantsallowed to deteriorateafter the foreclosure sale. He spent considerabletime and money pursing litigation against defendants. The foreclosure ruined his credit so he cannot buy another home. (2 AA
allegations deficiencies. of 000397). the SAC, 000399.) 14 Finally, Glaski if the trial asked court leave was to not satisfied amend to with cure the any
(2 AA
F.
The
Ruling
on
the
Demurrer
to
the
Second
Amended
Complaint. The November 2011. trial court sustained tentative Transcript cause the ruling, demurrer which without it made leave final to amend in a 15,
14, 2011
on November
[or "RT"],
of action
and the
California forged
Reconveyance
Company (2 AA nature of
in effect,
as her own.
000410.) of California's
Further,
comprehensive introduction
statutes the
nominee allegation
000410properly
before
the foreclosure
"Gomes Cal.App.4
v. th of to (2
v. Countrywide there
Loans,
(2011)] trustee,
is no legal
to challenge of their
mortgagee,
or any Civil
authorized subd.
initiate
the foreclosure
Code
2924,
AA 000411.) The wrongful violation loan was trial court foreclosure, found that the remaining relief, solely causes of action---quiet of instruments, that was title, and
declaratory based
cancellation on the
allegations signature
transferred
15
not
support leave
any
viable as
without
to amend
to the other G.
and
Chase
Agree
to
Change On April consent America Settlement".) Glaski and settlement asks judgment Corp.,
JP Morgan consent
Home
to a of State
settlement
in United (D.D.C.)
No.
12-CV-00361
notice 452
under
is allowed
records
of other
court
specified
in Section
Evidence
459 (a); Fitz v. NCR The consent called accepted Request Term judgment
th 702, settlement
Term terms of
JP Morgan Settlement
and Term
Chase Sheet.
Home (See
000006). as
Settlement signer
Sheet
of a document
document.
16
noticesof default,
notices of saleand similar noticessubmittedby or on behalf of Servicer in non-judicial foreclosures are accurate and complete and supported by competentand reliable evidence." (SettlementTerm Sheet,Section I. A. (1), at p. RJN 000013.) The term "Servicer" includes JPMorgan Chase Bank, N.A..." 000054.) Further, "Affidavits, sworn statementsand Declarations shall not include information that is false or unsubstantiated." (Settlement Term Sheet, Section I. A. (8), at p. RJN 000014.) Finally, "affidavits, sworn statements andDeclarationsshall be signedby handsignatureof the affiant. .." (SettlementTerm Sheet,SectionI. A. (11), at p. R.1N000015) JP Morgan and Chase Home
settlement proper ensure interest otherwise Sheet, forth that they assignment the Servicer could of the not foreclose loan: Finance recognized if they implement a documented (or deed action." In addition, right of trust) (Settlement "Servicer in the 50 state the to
in the
promissory party
a proper
to the
Section the
information
. . . in a Section
(Settlement
17
III.
STATEMENT
OF APPEALABILITY
The demurrer 000412.) trial 2011. proposed 000421.) 2011 court (RT
tentative
ruling
(RT
p. 1.)
adopted
as its final
p. 4: 12-14;
Defendants 22,
to the court
November judgment
proposed
to
counsel chose
on November counsel
defense
Glaski's
of Entry
Although it was
of Entry to Glaski's
of service.
(2 AA
This (Ibid.)
had been
California must
of Court, within
as it
read after
before a party
60 days
or the
serves
opposing
with
a document
entitled
of Entry
Unless of appeal
a statute must
be filed
on or before
the earliest
18
(B) 60 days after the party filing the notice of appealserves or is servedby a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service .... " Glaski filed his Notice of Appeal on February 16, 2012. (2 AA 000433.) The appealis timely becauseGlaski filed his Notice of Appeal on February 16, 2012, less than 60 days after defendants'counsel servedhis counselwith the Notice of Entry of Judgment. IV,
A. Standard of Review
ARGUMENT
appeals of appeal
without de novo.
sustaining
a demurrer, states a
we exercise cause
of action
El Granada
v. City
without
leave
decide
whether with
there
possibility find
the defect
an amendment.
an amendment
could
the
we
that has
the the
trial
court
abused of proving
its
discretion that
and
we
burden v. City
the defect."
Schifando
of Los Angeles,
19
Because Glaski Transferred to Sale, Cause (1) His Second of Action Elements cause (1
Alleged that his the Trust Before Amended for Wrongful of a Wrongful the SAC
In its fourth wrongful foreclosure 8 (1970), conversion, property: "Since we there Murphy other may willfully contained liability basic every property (Citations be foreclosure. began where
of action, AA
11 Cal.App.4 was
foreclosure wrongful
similar of
except
it arose
conversion
is a tort which the to the Murphy extent with rule trustor has been
applies case
to personal v.
disagree may
[Murphy it purports
Cal.App.2d however,
that
be a conversion to believe case liable where oppressive was to that That the sale there articulating
to real a trustee
jurisdictions.
or mortgagee damages or of sale rule upon Code person his rights." of the that or fraudulent
sustained
principle person of
liability
omitted;
20
Later action
opinions
have
likened
wrongful
foreclosure are:
to
a cause
of
to set aside "(1) power attacking mortgagor) the trustor mortgagor or was Cal.App.4 Several [T]he
a trustee's trustee
sale, where
or mortgagee sale
oppressive sale
in a mortgage (usually
(3) in cases
of the
indebtedness
excused
tendering."
v. Citibank,
th 89, 103 (2011). federal district courts have allowed when the a homeowner plaintiff because to state a the had
cause
of action party
to foreclose
properly
to it.
(California and
unpublished
federal
decisions, LLC
Screens, fn.
v. Morgan, Gomes
6 (2010);
v. Countrywide
Loans,
th 1149,
1156 (2011).) v. Suntrust Cal. Dec. Mortgage, 15, 2011), Inc., Judge 2011 U.S.Dist. of the
held:
Plaintiff
foreclosure." "that
He relied
on Civil
Code
section
the notice
of default.., authorized 21
be issued agents.'"
mortgagee,
or beneficiary,
or any of their
foreclosure a trustee
a party a Notice
to be the and
beneficiary nonjudicial
initiate
held
in
v. Cal.
American 2010)
"defendants
offer
institute
foreclosure that
right
to
also,
v. Morg.
68007,
at ** 9-10
(refusing alleged
to dismiss to have
wrongful interest
defendant it acted
of Trust
to foreclose These
on Plaintiffs' apply
opinions an illegal,
that
allow
a wrongful or willfully or
a "trustee
fraudulent
pursuant
to a power
of trust .... 11 by
v. Citibank, at 7. the
N.A., They
v. Moore, initiated
sale a
a party
power 22
to declare
a default
v. Suntrust
Mortgage, Home
Ohlendorfv.
American
Mortgage entity
F.R.D.
as it violates foreclosure
can
exist of "
fraud, "an
bases
for
such
are
claim
are
or willfully th at 103.
Lona allege
N.A.,
or reasonable without
on those
statements. initiated
It is enough
to foreclose
and prosecuted
prejudice.
Tamburri
v. Suntrust
Mortgage, Home
144442,
at *36;
Ohlendorfv.
American
Mortgage
at 583. tests. His wrongful Brignac foreclosure signature cause and of the
forged
SAC
of Deed Deed
of Trust
recorded (1
15, 2009
assigned Paragraph
of Trust
to BANK." failed
"Defendants... prior
an endorsement
of the Note
to the Closing
23
Trust. Plaintiff thus alleges . . . that the Trust did not have standing to forecloseon the SubjectProperty.... " (Ibid.) The wrongful foreclosure causeof action concluded: "Plaintiff...
contends that Defendants prove an cannot prove which in loan that had the trust held date Deed assigned Plaintiff's of December of Trust, as loan, 21, the until
a cut-off
ownership that
documents 2009,
indicate
to the
trust
approximately Glaski
after
(1 AA Sale (1 was
his The
foreclosure Deed stated (1 AA until June that, to issue the power the
000195,
the
of Trust. Trust
000244.) Assignment
of Trust These
recorded
(1 AA Trust of Default
established Company
and then
defendants
demurred must
foreclosure Blank
cause
of 39
be accepted
v. Kirwan, can
plaintiff
prove
v. Ambro
2 Cal.3d
493,496
(1970).
24
(2)
Cases Similar to Glaski's Foreclosure Claim. v. Chase Bank, N.A., loan loan
SAC
Allow
Wrongful
2012
U.S.
Dist.
LEXIS or as
obtained later
from to
Washington an investment
to foreclose, sued
for wrongful
JP Morgan
did not
dismiss
"Plaintiffs 'beneficial a nonjudicial present the these DOT. sufficiently .[U]nder legal 2012 power legal
assert of a Deed
that
only
the
owner' [] In
or the
Reconveyance Plaintiff's
Washington obtaining Court claim a party 109935, a federal foreclosure had than plaintiff been
Defendants
any beneficial
California to do
Barrionuevo
LEXIS case,
found
claim assigned
JP Morgan
plaintiff
Securities to power
wrongful
foreclosure.
25
Chase 2,2011);
Bank,
N.A.,
2011
U.S.
Dist.
LEXIS
62152,
at
Sacchi
v. Morg.
Elec.
Registrations
LEXIS identical
at ** 9-10. wrongful of action the entity cause He has because of loan foreclosure when and the thus the for that claim. plaintiff held power wrongful defendants to the his home for no to
These They alleged beneficial foreclose, foreclosure. lacked Trust was any well sold. uphold that
to Glaski's cause
interest. the
same. loan
interest date
in his
assigned after
is enough
to make
a cause
of action
wrongful
ruling
never
Countrywide there
is no legal
basis
to challenge
or any Civil
of their Code
authorized subd.
2924,
000411.)
26
alleging
foreclosure Home
not initiated
Countrywide
lnc.,
m at 1156 198
Fargo
Cal.App.4 foreclosure
a demurrer The
cause cause
and HSBC.
that "Plaintiff's
foreclosure never
because
Plaintiff's
wrongful
foreclosure
not only that the purported HSBC did not receive allegation." of the an
assignment
invalid, in any
of the debt
other
There
is no such
have ld.
an invalid
assignment
cases
principle: a judge
"Where is entitled
a [party to ask
title]
after
a mortgage entity
holder
v. lbanez, v. Morg.
cited U.S.
approval LEXIS
in Sacchi 68007,
Registrations
at * 21. 27
Glaski alleged in his SAC "that Defendantscannot prove that the trust held Plaintiff's loan, nor canthey provethat the trust, which had a cutoff date of December 21, 2005, had an ownership interest in Plaintiff's Deed of Trust, as the documents indicate that Plaintiff's loan was to assignedto the trust until 2009, approximately four years after the trust closed." (1 AA 000196.) This statementis exactly the kind of specific, factual allegation the
wrongful foreclosure Gomes and Gomes Fontenot does courts hold the trial will support ruling a
claim.
not support
court's
on the demurrer. The foreclosure foreclosure is to provide every trustee.., policy trustor.., trial court also thought that allowing with Glaski the to allege nature wrongful of the
speedy
beneficiary would
(2 AA
court
cited
Gomes
_ at 1154-1155, Moeller
for this proposition. 25 Cal.App.4 th 822, In Moeller the "(2) foreclosure to protect v. Lien, 25 830 v.
v. Lien,
as authority. however,
Gomes,
the court
identified
statutes, the
in additional from
by Gomes:
debtor/trustor
Moeller
Cal.App.3d at 830. Permitting a wrongful foreclosuresuit to challengethe authority of a party to forecloseupholds this principle, becauseit prevents the wrongful loss of a home. Even the Gomes
suit was foreclosing Countrywide, Cal.App.4 proper when the plaintiff did not have could the allege power Fontenot above, made court recognized facts that such showing Gomes Bank, a the v. 198
specific to
entities
th at 1156; as shown
v. Wells such
allegations
cause assertions
of action. before the note" under note. the case. trial court (2 AA
this
a "produce
a deed (See
unless
at 2 AA
defendants properly
before Trust
000196). note
whether is the
the
or note.
matters had
too-late
assignment
Trust and
California
of Default (1bid.)
a Notice
of Trustee's
the home
29
"prejudiced
Citibank, at 7. wrongful
v. Moore,
Glaski
alleged by an AA
as "a result
and
conduct in (1
Plaintiff according
and less
special than
damages $1,000."
to proof
cause
of action
also must
against
the allegations
can make
significant
National
Cal.App.
Sept.
1 l, 2012.) distress.
he opposed rating
demurrer,
that
the
foreclosure another
to buy
Further,
incurred
considerable
3O
expense, including attorney's fees, in pursuing this case against the defendants.(Ibid.) That expensedemonstrates prejudice. Finally, Glaski was pursuing a modification of his loan when he lost his home in the foreclosuresale: "From March until May, 2009, Plaintiff was led to believe that a loan modification was in the processthrough JP MORGAN, per negotiationsmade with Chase Home Finance,LLC." (1
AA 000186.) When Glaski filed an application for a TRO to stop the foreclosure sale,he submitteda declaration outlining his loan modification efforts. (1 AA 000043-000046.) He can reasonably allege that, if the foreclosure had not occurred in May 2009, he would have completed the loan modification processand been approvedfor a modification. (1 AA 000186.) He would havekept his home. Thosepotential allegationsshow prejudice. Defendantslikely will arguethat Glaski alreadyhad defaultedon his loan and was doomed to lose his home anyway. But, the SAC makesno suchcharge,andits allegationscontrol.
2 Cal.3d at 496. Whether to judicial dispute Glaski notice and to sources not would under Alcorn have v. Ambro Engineering, in any Inc., case is
Evidence of
section and
"capable of reasonably
immediate indisputable
determination
by resort
accuracy."
31
(5) Contrary AA loan 000293-00294), before he only Savings v. Great 1225 therefore (1985). is not could
is Not Required. contention was in their demurrer the to the balance SAC (2
to tender
of his is v. Cold
does
equitable
defenses,
Wrongful courts
is a tort for
of action 40 years.
California Moore, 11
Glaski's
wrongful
foreclosure
of action
requests
(1 AA 000196.) "will not sale cases, and is not be required has a when the person or the who set-off and seeks against the to set the
counter-claim that
tender
another,
a tender
required." 42 which
N.A.,
v. Gates,
$1 million,
than
of his loan.
(Compare
1 AA 000196
1 AA 000044.)
32
Finally, the tenderrule doesnot apply to a salethat is void becauseit was obtained by fraud.
Cal.App.4th at 113. Glaski 868, 876-877 Dimock (1977); v. Lona forged Emerald v. Citibank, signatures Sale, Properties, N.A., LLC, 81 th on of that
alleges
of Default, (1 AA
of Trustee's
"[By] closing
instrument becomes
a Deed thus
assignment
conducting
rendering 1 AA
ab initio."
73 of the Alcorn
000196.)
allegations 2 Cal.3d
must at 496.
be accepted Because
the sale
accomplished Lona
through N.A.,
was void C.
not apply.
v. Citibank, was
Transferred,
Alleged
Two
of Action of action
for
for fraud.
that
Brignac 15,
2009
Trustee's
Assignment
of Deed
(1 AA 000189).
By this forgery,
defendants
33
documents Vice
signed and
by JP
purpose
to initiate
court leave
without
It concluded, or ratified
had
authorized
and forgave
the the
or ratification written
person,
or ratification, if the
though
originally CRC
[E]ven
signature
problems
this
defendants another
practice
name. LEXIS
7, 2012) have
involving See,
courts Bank,
N.A., agreed
recent example,
Morgan that
"Servicer notices
factual notices
assertions submitted
made by or
of default,
of sale and
similar
on behalf
of Servicer
in non-judicial
foreclosures 34
are accurate
and complete
and supported by competent and reliable evidence." (Settlement Term Sheet,SectionI. A. (1), at p. RJN 000013.) Second, in effect the trial court's reasoning allows defendantsto benefit from their own wrong. Even if the Brignac signature is forged, defendantscan validate the forged documentsmerely by claiming that they authorized or ratified the forgery. But, under California law, a party
Ragland v. U.S. Bank Civil Code National section
at * 26, citing
trial was
whether of fact
or ratified
did the
authorized
or ratified Alcorn
controlled.
subject
it was by
not
"capable of reasonably
to sources Fourth,
the
trial
court
scheme the
authority (2 AA
of the
lender's
000410-000411;
in
35
original.)
outright fraud, becausefraud is not mentionedin the foreclosure statutes, Civil Code sections2924 et seq. California law barsfraud. SeeCivil Code sections1708and 1710. In addition, California law imposescriminal penaltiesfor knowing forgery of a contractor assignmentof a note. PenalCodesection470 (d). The anti-fraud and forgery statutesmust be readtogetherwith the foreclosurestatutes,so that all can be given effect. California law frowns on any attemptto say that one statuteoverrides anotherstatute.
Fleetwood the Enterprises, statutes they lnc, barred the 17 Cal.4 th 985,992 any claim and (1998). Murillo v. that court
or forgery, statutes.
overrode
fraud must
forgery
statutes
be applied fraud
allowing Fifth,
v. Countrywide,
proposition out
pointed
th at 830 another
supra.
v. Lien, was
to protect v. Lien, 25
homeowner
form
wrongful
Cal.App.3d it prevents
at 830.
Permitting
claim
this principle,
because
the wrongful
loss of a home. 36
(2) The fraudulently 000191-000192.) he charged disclose conducted by assigning and The to Second
for
alleged
represented In effect,
power a claim
to foreclose.
Glaski
foreclosure of Trust
without date
right
under pursuant
law
allowed Trust.
to the
Pooling
Agreement sustained
demurrer
leave
to amend.
(2 AA holds that
000410.) there
The is no
trial
court
reasoned
that the
legal
basis
mortgagee,
beneficiary citing
of their 2924,
the foreclosure
process
(a)
(2 AA 000411.) But, as explained the authority a specific by the correct th at defendants above, of a party factual party." 1156 (italics concealed basis even the Gomes court ruled that a plaintiff if his complaint was Loans, that had not Inc., by not
to conduct for
a foreclosure the
alleging
Gomes
Cal.App.4 that
added). from
alleging
37
beenproperly assignedto the foreclosingtrust andthat defendantstherefore did not havethe power to foreclose. (1 AA 000191-000192.)
(3) Although contended on their plead in their alleged the Glaski trial Pleaded court did Reliance. not SAC rule that (2 AA on this Glaski argument, defendants reliance did
demurrer
to the
false
representations.
reliance
50 of the SAC
by stating
caused
the act of to do to
Defendants"
a loan
modification
agents
be accepted
as true.
whether if
Glaski any,
amend question.."
his
complaint Schifando
cure
deficiencies,
be amended
truth--that
on the
of Trustee's or May
could sale.
to court
earlier,
in April
before
could have askeda court to block the sale basedon the forged signature. He also could have filed for Chapter 13 bankruptcy to stop the sale.
e.g., Aceves v. U.S. Bank National Assoc., 192 Cal.App.4 th 218, See,
229-230
(2011). One plaintiff Day, Corp., way to judge have acted reliance had in a concealment case is to ask how Vega the
would
Reavis
& Pogue,
Lovejoy have
happened
not been
properly
they
did not
the power
a new
minimum
to cure
Notice
of Trustee's
provided
20 days. the truth, Glaski other would have see, had e.g., or he Assoc., he could that his
had
revealed that
He could
financing,
Savings, for
1041-1042 Bank
(2010), National
he already to prosecute
continued
application.
39
modification requestwould havebeen granted and he would have kept his home. Thosepotential allegationsshowreliance.
D. Because Based Causes The relief, were Because the trial court Glaski's on the of Action, sustained Remaining Fraud They the and Should Causes Wrongful of Action Were
Foreclosure
Be Reinstated. to the quiet causes foreclosure causes title, declaratory because of they action.
cancellation based on
wrongful foundational (2 AA
it had
remaining here.
as well. Glaski
000411-000412.) causes
applies
clearly
alleged
and
for fraud,
of action relief,
of instruments,
title
should
a plaintiff other
can allege or
that
a defendant statute
violates or by
the stating
California
federal
defendant
conduct.
Cel-Tech
Cellular
of at least read v. JP
(a) (1), to
have
to bar a foreclosure Morgan Code (d), Chase sections which Bank, 1709 bars 4O
so, Javaheri
2011
62152, Penal
1710, and
which Civil
fraud; section
470
UCL at 329.
as fraud. Glaski
fraud, supra.
stated
of action
to a claim th at
Cal.App.4 or
cause
of action
are and
an
excuse home
alleged as
of his
it violated above.
and
a quiet
elements
of action
and
cancellation
of instruments,
has stated
41
V.
CONCLUSION
For these reasons,plaintiff and appellant THOMAS A. GLASKI respectfully requeststhat thejudgment of the trial court be reversed. Dated: September25, 2012 LAW OFFICESOF CATARINA M. BENITEZ
By: CatarinaM. Benitez Attorneys for Plaintiff and Appellant ThomasA. Glaski
42
10,021
words,
to generate
September
43