JOHN F. LUNDY Plaintiff, VS. SELENE FINANCE, LP; MTC FINANCIAL d/b/a TRUSTEE CORPS; JPMORGAN CHASE BANK, N.A.; BANK OF AMERICA, N.A.; WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a CHRISTIANA TRUST, as trustee for BCAT 2014-12TT and DOES 1- 100 inclusive, Defendants. [Filed concurrently with Declaration of Shay Winebarger; Declaration of Ruby .1 Chavez; Request for Judicial Notice; (Proposed) Order; Motion to Expunge Lis Pendens] Case No.: 15-05676-JST DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT [Fed.R.Civ.P. 56] Hearing: Date: Thursday, April 27, 2017 Time: 2:00 p.m. Crtrm: 9, 19th Floor F 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WRIGHT, FINLAY & ZAK, LLP Gwen H. Ribar, Esq., SBN 188024 Ruby J. Chavez, Esq., SBN 267405 4665 MacArthur Court, Suite 200 Newport Beach, CA 92660 Tel: (949) 477-5050; Fax: (949) 608-9142 gribar@wrightlegal.net; rchavez@wrightlegal.net Attorneys for Defendants, Selene Finance LP and Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity, but solely as trustee for BCAT 2014-12TT UNITED STATES DISTRICT COURT CALIFORNIA NORTHERN DISTRICT (SAN FRANCISCO) 1 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 1 of 25 TO THIS HONORABLE DISTRICT COURT, ALL-PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Thursday, April 27, 2017, at 2:00 p.m. in Courtroom "9" of the above-captioned Court, located at the Phillip Burton Federal Bldg, 450 Golden Gate Ave, San Francisco, CA 94102; Defendants Selene Finance LP and Wilmington Savings Fund Society, FSB, doing Business as Christiana Trust, not in its individual capacity, but solely as trustee for BCAT 2014-12TT (collectively, "Defendants") by and through its attorney of record, Wright, Finlay & Zak, LLP, will and hereby do move the above-entitled Court for Summary Judgment on the Complaint filed by Plaintiff John F. Lundy ("Plaintiff'). PLEASE TAKE FURTHER NOTICE that, in the alternative, Defendants will and hereby do move for Partial Summary Judgment as to the following issues: ISSUE NO. 1: There are no triable issues of material fact and Defendants are entitled to summary judgment of Plaintiff's alleged claim for Wrongful Foreclosure because Defendants' had standing to foreclose, Defendants' possess the original note, and Plaintiff lacks damages. ISSUE NO. 2: There are no triable issues of material fact and Defendants are entitled to summary judgment of Plaintiff's alleged claim for Violation of Civil Code section 2924.17 because Defendants reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose. ISSUE NO. 3: There are no triable issues of material fact and Defendants are entitled to summary judgment of Plaintiff's alleged claim for Violation of Bus. & Prof. Code section 17200 et seq. because Plaintiff cannot allege the required elements and lacks the required standing. This motion is made pursuant to Federal Rules of Civil Procedure ("FRCP"), Rule 56, and is brought on the grounds that there is no genuine dispute as to any material fact and Defendants are entitled to judgment as a matter of law. The motion will be based on 2 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 2 of 25 this Notice of Motion and Motion, the supporting Memorandum of Points and Authorities, the Declarations of Shay Winebarger and Ruby J. Chavez, the supporting evidence, the Request for Judicial Notice ("RJN"), the pleadings, papers and records on file herein, and upon such further oral and/or documentary evidence as the Court might consider at the time of hearing for this matter. Respectfully Submitted, WRIGHT, FINLAY & ZAK, LLP Dated: March 23, 2017 By: /s/Ruby J Chavez Gwen H. Ribar, Esq. Ruby J. Chavez, Esq. Attorney for Defendants, Selene Finance LP and Wilmington Savings Fund Society, FSB, doing Business as Christiana Trust, not in its individual capacity, but solely as trustee for BCAT 2014-12TT 3 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 3 of 25 1 TABLE OF CONTENTS 2 Page No. 3 MEMORANDUM OF POINTS AND AUTHORITIES 4 I. INTRODUCTION .1 5 II. STATEMENT OF FACTS .2 6 A. Loan and Note Ownership 2 7 B. Default and Foreclosure 3 8 C. Plaintiffs Transfer of title To the Property.... 4 9 III. STANDARD FOR MOTION FOR SUMMARY JUDGMENT 4 10 IV. ARGUMENT 5 11 A. PLAINTIFF'S WRONGFUL FORECLOSURE CLAIM FAILS 5 12 1. Plaintiff Has No Admissible Evidence to Support His Theory that the 13 Loan Was Sold to RESI 5 14 2. The Allegations Regarding JPMorgan Are Unsupported 6 15 3. Defendants are the Holders in Due Course of the Note 8 16 4. Plaintiff Cannot Show Damages or Prejudice .10 17 B. PLAINTIFF'S CLAIM FOR VIOLATION OF CIVIL CODE 18 SECTION 2924.17 IS UNSUPPORTED 11 19 1. There are No Triable Issues as to Whether the Assignments Were 20 Flawed .12 21 2. There are No Triable Issues as to Whether Plaintiff was in Default.....13 22 3. Plaintiff Cannot Demonstrate a Material Violation Anyway .13 23 C. DEFENDANTS ARE ENTITLED TO JUDGMENT IN ITS FAVOR 24 FOR THE SEVENTH CLAIM FOR VIOLATION OF BUSINESS & 25 PROFESSIONS CODE 17200 ET SEQ 14 26 1. This Claim Rises and Falls With Plaintiffs Other Causes of Action.....14 27 2. Plaintiff Has No Standing 14 28 V CONCLUSION 15 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 4 of 25 TABLE OF AUTHORITIES 2 Cases 3 Anderson v. Liberty Lobby, Inc. 4 477 U.S. 242, 248, 249 (1986) 4, 5 5 Celotex Corp. v. Catrett, 477 U.S. 317, 323,325 (1986), 5, 6, 7 6 Cel-Tech Commc'ns, Inc. v. Los Angeles Cellular Tel. Co. 7 973 P.2d 527, 540 (Cal. 1999). 14 8 Cockerell v. Title Ins. & Trust Co. 9 (1954) 42 Ca1.2d 284, 291 9 10 Creative Ventures, LLC v. Jim Ward & Associates 11 (2011) 195 Cal.App.4th 1430, 1446 9 12 Debrunner v. Deutsche Bank National Trust Co. 13 204 Cal.App.4th 433 (2012) 10 14 Durrell v. Sharp Healthcare 15 183 Cal.App.4th 1350, 1366 (2010). 14 16 Feitelberg v. Credit Suisse First Boston 17 LLC (2005) 134 Cal.App.4th 997, 1012 15 18 Fontenot v. Wells Fargo Bank, N.A. 19 198 Cal.App.4th 256, 272 (2011) 10 20 Gasaway v. Nw. Mut. Life Ins. Co. 21 26 F.3d 957, 960 (9th Cir. 1994). 5 22 Gillies v. JPMorgan Chase Bank, NA. 23 7 Cal.App 5th 907, 913 (2017). 8 24 Hale v. Sharp Healthcare 25 183 Cal.App.4th 1373, 1384 (2010); 14 26 In re Aniel, 427 B.R. 811, 815-816 27 (Bkrtcy. N.D. Cal. 2010 9 28 11 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 5 of 25 1 In re Tobacco II Cases 2 46 Ca1.4th 298, 316 (2009); 14 3 In re Zulueta 4 2011 WL 4485621 at *4-5 (9th Cir. BAP 2011) 9 5 Ka/noki v. First American Trustee Servicing Solutions, LLC 6 8 Cal.App 5th 23, 48-49 (2017) . 10 7 Knapp v. Dougherty 8 (2004) 123 Cal.App.4th 76, 94 10 9 Lona v. Citibank, NA. 10 202 Cal.App.4th 89, 104 5 11 Masson v. New Yorker Magazine 12 501 U.S. 496, 520 (1991) 5 13 Melendrez v. D & I Investment, Inc. 14 (2005) 127 Cal.App.4th 1238, 1258, 26 Cal.Rptr.3d 413 5 15 Moeller v. Lien 16 (1994) 25 Cal.App.4th 822, 830-833 10 17 Ram v. One West Bank 18 (2015) 234 Cal.App.4th 1, 18 10 19 Rosenfeld v. JPMorgan Chase Bank, NA. 20 (N.D.Cal. 2010) 732 F.Supp.2d 952, 959 8 21 Sciarratta v. US. Bank National Assn. 22 247 Cal.App.4th 552, 555 (2016) 11 23 Stewart v. Life Ins. Co. of North America 24 388 F.Supp.2d 1138, 1143 (2005); 14 25 US. v Thornburg 26 (9th Cir.1996) 82 F.3d 886, 892. 9 27 Wilson v. Hynek 28 207 Cal.App.4th 999 (2012); 14 iii DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 6 of 25 1 Wolfe v. Lipsy 2 163 Cal.App.3d 633, 639 (1985) 5 3 Yvanova v. New Century Mortg. Corp. 4 62 Ca1.4th 919, 939, fn. 13 (2016)) 9, 10 5 Statutes 6 Bus. & Prof. Code § 17204. 14 7 Business & Professions Code section 17200 14 8 California Civil Code, section 2924.17 11 9 California Commercial Code §3104 9 10 Commercial Code §§3201(b), 3205(b) 8 11 Commercial Code §1201(b)(21) 8 12 Commercial Code §1201(b)(5) 8 13 Commercial Code §3201(a). 8 14 Commercial Code §3301 8 15 Evid. Code, §§ 452, 459 8 16 Other Authorities 17 18 Buckland, 155 Cal.App.4th at 817 15 19 Rules 20 Fed. R. Civ. P. 56(c). 4 21 Fed. R. Civ. P. 56(e). 5 22 23 24 25 26 27 28 iv DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 7 of 25 ME1VIORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff has been in default on his loan since 2010 and is attempting to challenge Defendants' right to foreclose by way of this frivolous lawsuit. In his Complaint, Plaintiff makes the speculative and unsupported allegation that the Loan was sold by the original lender, Washington Mutual Bank, F.A. ("WaMu") to a RESI Finance DE Corporation 2007-B ("RESI") on or before March 29, 2007. Plaintiff argues that because of this March 2007 transfer, this Loan could not have been part of the assets of WaMu that JPMorgan Chase Bank, N.A. ("JPMorgan") acquired on September 25, 2008, and therefore, it could not have been sold, assigned, or otherwise transferred from JPMorgan to Bank of America, N.A. ("BANA"), or subsequently from BANA to Wilmington Savings Fund Society, FSB, doing Business as Christiana Trust, not in its individual capacity, but solely as trustee for BCAT 2014-12TT ("Christiana Trust"). Plaintiff's only "evidence" of the alleged March 2007 transfer is a printout from a website with an address of absent.net. Yet, such a printout is not evidence at all, as it is Plaintiff's self-serving theory that WaMu sold the loan to RESI. Furthermore, Defendants' undisputed evidence demonstrates the contrary; that (1) Christiana Trust does own and physically possess the promissory note ("Note"), thereby making it the correct party to conduct the foreclosure; and (2) the Loan was never sold, assigned, or transferred to RESI. Notwithstanding the above, it is Plaintiff whom ironically lacks standing in this case, as he has not owned the subject property since August 2014 and has not resided there since two years before that. Thus, he does not have standing to challenge any foreclosure and has not been harmed by any wrongful conduct alleged in the Complaint. In light of the above and for all of the reason set forth herein, Defendants are entitled to summary judgment in their favor. /// 1 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 8 of 25 II. STATEIVIENT-OFFACTS A. Loan and Note Ownership. On December 21, 2005, Plaintiff John Lundy ("Plaintiff') obtained a loan from WaMu in the amount of $1,134,000.00 ("Loan"), which was evidenced by a promissory note ("Note") and secured by a Deed of Trust ("Deed of Trust") encumbering real property located at 29 Bridgegate Drive, San Rafael, California (the "Property"). Declaration of Shay Winebarger ("Declaration of Winebarger"), IT 2, Exhibit A; Declaration of Ruby J. Chavez ("Declaration of Chavez"), ir 10, Exhibit F, pg. 16, lines 17-25. The Deed of Trust was recorded with the Marin County Recorder's Office on December 30, 2005. Request for Judicial Notice ("RJN"), Exhibit 1. Thereafter, JPMorgan acquired certain assets and liabilities of WaMu, including this Loan, from the FDIC as receiver pursuant to the Purchase and Assumption Agreement ("PAA"), entered into by JPMorgan and the FDIC as receiver on September 25, 2008. RJN, Exhibit 3; Declaration of Winebarger, lit 3, Exhibit C. Plaintiff admits to receiving monthly mortgage statements from JPMorgan. Declaration of Chavez, 4[[ 10, Exhibit F, pg. 36, lines 14-19. Plaintiff admits to talking to JPMorgan about the modification process and postponement of the foreclosure. Declaration of Chavez, li 10, Exhibit F, pg. 37, lines 14-25, pg. 40, lines 14-22, pg. 46, lines 9-20, pg. 47, lines 11-22. Notably, in discussing JPMorgan, Plaintiff testifies, "I recall years of application for modification back and forth, sending documentation, talking to people on the phone, on and on. Declaration of Chavez, IR 10, Exhibit F, pg. 48, lines 7-14. Plaintiff admits to receiving letters from JPMorgan as well. Declaration of Chavez, If 10, Exhibit F, pg. 32, lines 5-8. On or about December 23, 2014, Christiana Trust acquired Plaintiffs Loan. Declaration of Winebarger, ill 4, Exhibit D. As evidence of this, an Assignment of Deed of Trust was recorded on March 11, 2015. RJN, Exhibit 6.1 However, the recordation of 1 An earlier Assignment of Deed of Trust was recorded on November 4, 2010 (see RJN, No. 2). 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 9 of 25 the Assignment was done solely as a matter of practice to provide constructive notice to any junior lienholders who the foreclosing beneficiary was. The Assignment was not the operative document by which the Loan was sold to Christiana Trust. At all relevant times, Christiana Trust owned the Note. Declaration of Winebarger, If 4. Selene Finance LP ("Selene") is the current loan servicer and attorney- in-fact for Christiana Trust. Declaration of Winebarger, ¶ 4. Selene and Christiana Trust are collectively referred to as the "Defendants". Selene is in possession of the original Note signed by Plaintiff. Declaration of Winebarger, II 4. Should the Court desire, Defendants are able and willing to produce the Note at the hearing on this Motion for Summary Judgment. Declaration of Winebarger, 115. B. Default and Foreclosure. On or about September 1, 2010, Plaintiff defaulted under the terms of the Loan by failing to make the monthly payment due thereon and all payments thereafter. Declaration of Winebarger, IT 7, Exhibit E. From 2010 to 2015, Plaintiff admits that he did not and could not afford to make his loan payments. Declaration of Chavez, ¶ 10, Exhibit F, pg. 48, lines 15-21, pg. 49, lines 18-25. Plaintiff admits that he was in arrears of over $375,000.00 by August 2015. Declaration of Chavez, II 10, Exhibit F, pg. 56, lines 16-22. As a result of Plaintiffs admitted default, a Notice of Default ("NOD") was recorded with the Marin County Recorder's Office on August 14, 2015. RJN, No. 8. On January 29, 2014, a Substitution of Trustee ("SOT 1") was recorded with the Marin County Recorder's Office, which designated ALAW as the substituted trustee under the DOT. RJN, No. 4. Another Substitution of Trustee was recorded with the Malin County Recorder's Office on July 10, 2015 ("SOT 2") to substitute MTC Financial Inc. dba Trustee Corps. as the substituted trustee under the DOT. RIN, No. 7. On June 2, 2016, a Substitution of Trustee was recorded with the Marin County Recorder's Office ("SOT 3") to substitute T.D. Service Company as the substituted trustee under the DOT. TUN, No. 9. 3 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 10 of 25 1 On June 7, 2016, a Notice of Trustee's Sale was recorded with the Malin County 2 Recorder's Office. RJN, No. 10. After Plaintiff failed to cure the arrearages owed on 3 the Loan, the Property was sold at public auction on August 4, 2016 to Christiana Trust 4 for $1,469,430.62. Declaration of Winebarger, if 8. The Trustee's Deed Upon Sale was 5 recorded with the Marin County Recorder's Office on August 10, 2016. RJN, No. 11. 6 C. Plaintiff's Transfer of Title To the Property. 7 On August 8, 2014, title to the Property was transferred via Grant Deed from John 8 and Nancy Lundy, Trustees of the Lundy Family Trust created by declaration of trust 9 dated May 3rd, 2001 to Nancy A.M. Lundy, a married woman as her sole and separate 10 property. RJN, No. 5; Declaration of Chavez, if 6-7, Exhibit "B," Response to Special 11 Interrogatory No. 31, Exhibit "C," Response to Request for Admission No. 35. Plaintiff 12 admits that he signed the Grant Deed transferring the property to Nancy A.M. Lundy as 13 her sole and separate property. Declaration of Chavez, If 10, Exhibit F, pg. 25, lines 4-18. 14 Plaintiff further admits that, at no time from August 8, 2014 through the August 2016 15 foreclosure sale did ownership in the Property change hands. Declaration of Chavez, If 16 10, Exhibit F, pg. 26, lines 2-6. 17 Plaintiff also admits that he has not resided in the Property since November 2012 18 (at which point Plaintiff moved into his home at 10020 Grove Street, Penngrove, Sonoma 19 County, CA). Declaration of Chavez, ¶ 10, Exhibit F, pg. 9, lines 20-25, pg. 10, lines 1- 20 6, pg. 51, lines 23-25. Plaintiff admits that Nancy A.M. Lundy rented the Property out to 21 paying tenants. Declaration of Chavez, 1[[ 10, Exhibit F, pg. 51, lines 13-22, pg. 54, lines 22 12-17. 23 III. STANDARD FOR MOTION TO FOR SUMMARY JUDGMENT 24 Summary judgment is proper when the pleadings, discovery, and affidavits show 25 that there is "no genuine issue as to any material fact and that the moving party is entitled 26 to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may 27 affect the outcome of the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 28 248 (1986). The party moving for summary judgment bears the burden of identifying 4 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 11 of 25 those portions of the pldings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; see also Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). The court may not make credibility determinations and inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Anderson, 477 U.S. at 249; Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991). IV. ARGUMENT A. PLAINTIFF'S WRONGFUL FORECLOSURE CLAIM FAILS. 1. Plaintiff Has No Admissible Evidence to Support His Theory that the Loan Was Sold to RESI. A nonjudicial foreclosure sale is presumed proper and the burden of proof rests with the party attempting to rebut this presumption. Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258 ("It is the burden of the party challenging the trustee's sale to prove such irregularity and thereby overcome the presumption of the sale's regularity"); Knapp v. Doherty (2004) 123 Cal.App.4th 76, 86, fn. 4; Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 639. Thus, Plaintiff must prove: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale was prejudiced or harmed; and (3) the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. Lona v. Citibank, NA. (2011) 202 Cal.App.4th 89, 104. 5 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 12 of 25 1 As touched on above, summary judgment is proper where there is an absence of 2 evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 3 325 (1986). Here, Plaintiff conveniently concludes that "the chain of assignment is 4 faulty." Declaration of Chavez, If 1 0 , Exhibit F, pg. 76, lines 6-9. But, when asked what 5 facts he has to support that contention, his response time and time again has been "I don't 6 know." Declaration of Chavez, iii 1 0 , Exhibit F, pg. 76, lines 10-19. Plaintiff has no 7 admissible evidence for his claim in the Complaint that in 2005 or 2007, WaMu sold the 8 loan to RESI. Complaint lis 11, 30; Declaration of Chavez, iii 8, Exhibit "D," Response to 9 Request for Production of Documents No. 3. Plaintiff testified that he has no facts to 10 support paragraph 11 of the Verified Complaint that WaMu sold the loan to RESI. 11 Declaration of Chavez, 1110, Exhibit F, pg. 82, lines 5-7. Plaintiff admitted that he has no 12 facts to support paragraph 11 of the Verified Complaint that RESI sold the loan to Wells 13 Fargo, N.A., as the trustee for the investors in the RESI Finance Limited Partnership, 14 Mortgage Pass-through Certificates, Series 2007-B ("RESI 2007-B Trust"). Declaration 15 of Chavez, If 10, Exhibit F, pg. 83, lines 2-8. Plaintiff even goes so far as to concede that 16 "Washington Mutual Bank, F.A. did not sell the deed of trust to REST Finance" in his 17 discovery responses despite the allegations in his Verified Complaint. Declaration of 18 Chavez, ii 7, Exhibit "C," Response to Request for Admission No. 1. 19 Since Plaintiff cannot prove the theory of liability on which his case is brought, 20 summary judgment must be granted in favor of Defendants. 21 2. The Allegations Regarding JPMorgan Are Unsupported. 22 Similarly, Plaintiff has no admissible evidence to support his allegation in the 23 Complaint that Plaintiff's Loan was not among the assets acquired by JPMorgan from 24 WaMu. Complaint if 30; Declaration of Chavez, if 6, Exhibit "B," Response to Special 25 Interrogatories No. 20. Instead, Plaintiff admits to receiving monthly mortgage 26 statements from JPMorgan. Declaration of Chavez, li 10, Exhibit F, pg. 36, lines 14-19. 27 Plaintiff admits to talking to JPMorgan about the modification process and 28 postponement of the foreclosure. Declaration of Chavez, 4ff 10, Exhibit F, pg. 37, lines 6 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 13 of 25 1 14-25, pg. 40, lines 1-4-22, pg. 46, lines 9-20, pg. 47, lines 11-22. Notably, in discussing 2 JPMorgan, Plaintiff testifies, "I recall years of application for modification back and 3 forth, sending documentation, talking to people on the phone, on and on. Declaration of 4 Chavez, if 10, Exhibit F, pg. 48, lines 7-14. Plaintiff admits to receiving letters from 5 JPMorgan as well. Declaration of Chavez, 11 10, Exhibit F, pg. 32, lines 5-8. Plaintiff 6 testifies that he did not receive any communication from Wells Fargo or any other entity 7 associated the RESI 2007-B Trust. Declaration of Chavez, II 10, Exhibit F, pg. 86, lines 8 12-17. Thus, the conclusion that JPMorgan had no interest in the Loan to assign to 9 BANA should be disregarded. Complaint ¶ 30; Declaration of Chavez, ¶ 8, Exhibit "D," 10 Response to Request for Production No. 6. Plaintiff's allegation that Assignments 1 and 11 2 are void and the foreclosure documents are all fatally defective and void also should be 12 disregarded due to Plaintiff's lack of evidence. Complaint Ts 30-31. Similar to Celotex 13 Corp. v. Catrett, 477 U.S. 317, 323 (1986), "there is an absence of evidence to support 14 the nonmoving party's case." Id. at 325. 15 Notwithstanding Plaintiff's concession that he has no evidence to support his 16 claim, Defendants' undisputed evidence establishes both a complete "chain" of 17 ownership from WaMu, to JPMorgan, and eventually to Christiana Trust and Christiana 18 Trust's standing to foreclose. 19 On September 25, 2008 JPMorgan acquired certain assets and liabilities of WaMu, 20 including Plaintiff's Loan, from the FDIC through a Purchase and Assumption 21 Agreement. RJN, No. 3; Declaration of Winebarger, ¶ 3, Exhibit C. In a similar case in 22 the Second District Court of Appeal, plaintiff Gillies alleges that Chase is not the 23 beneficiary because the Note and Deed of Trust were almost certainly sold to a third 24 party before Chase assumed the assets of WaMu in September 2008. However, the Court 25 concluded, "[Wiese allegations do not state a cause of action. Gillies speculates that 26 WaMu transferred his mortgage to a securitized trust prior to Chase's agreement to 27 purchase WaMu's assets. There is no reasonable basis to dispute that Chase succeeded to 28 WaMu's interest as beneficiary of the trust deed securing Gillies's property." Gillies v. 7 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 14 of 25 JPMorgan Chase Bank, N.A., 7 Cal.App 5th 907, 913 (2017). "We take judicial notice of the Purchase and Assumption Agreement entered into by Chase and the Federal Deposit Insurance Corporation, as receiver for WaMu. (Evid. Code, §§ 452, 459; Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D.Cal. 2010) 732 F.Supp.2d 952, 959.)." Id at 913, fn. 1 2 3 4 5 4. On or about December 23, 2014, Christiana Trust acquired Plaintiff's Loan, and a letter, dated January 22, 2015, was sent to Plaintiff explaining this. Declaration of Winebarger, li 4, Exhibit D. Since then, and at all relevant times, including the date of the foreclosure, Christiana Trust owned the Note. Declaration of Winebarger, ift 4. An Assignment of Deed of Trust was subsequently recorded on March 11, 2015, identifying Christiana Trust as the beneficiary under the Deed of Trust. RJN, No. 6. 3. Defendants are the Holders in Due Course of the Note. The Commercial Code defines a "person entitled to enforce" an instrument as "(a) the holder of the instrument, (b) a nonholder in possession of the instrument who has the rights of a holder, or (c) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3309 or subdivision (d) of Section 3418." Commercial Code §3301. A "holder" is "the person in possession of a negotiable instrument that is payable either to bearer or, to an identified person that is the person in possession...." Commercial Code §1201(b)(21). A holder attains such status by way of a negotiation of the note, that is, the "transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer...." Commercial Code §3201(a). Where an instrument is payable to bearer or endorsed in blank, it "may be negotiated by transfer of possession alone." Commercial Code §§3201(b), 3205(b). A "bearer" is "a person in possession of a negotiable instrument ... that is payable to bearer or endorsed in blank." Commercial Code §1201(b)(5). In other words, "an instrument endorsed-in-blank becomes payable to bearer and any person who possesses the instrument becomes its 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 15 of 25 holder." In re Zulueta, 2011 WL 4485621 at *4-5 (9th Cir. BAP 2011) (emphasis added) (citing In re Aniel, 427 B.R. 811, 815-816 (Bkrtcy. N.D. Cal. 2010). Paragraph 1 of the Note, signed by Plaintiff, states that "I understand that the Lender may transfer this Note. Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the 'Note Holder." Declaration of WinebargerWinebarger, ¶ 2, Exhibit "A." As Yvanova v. New Century Mortgage Corp. recently confirmed, a "promissory note is a negotiable instrument the lender may sell without notice to the borrower. The deed of trust, moreover, is inseparable from the note it secures, and follows it even without a separate assignment." 62 Ca1.4th 919, 927 (2016) citing Creative Ventures, LLC v. Jim Ward & Associates, (2011) 195 Cal.App.4th 1430, 1446; Cockerell v. Title Ins. & Trust Co., (1954) 42 Ca1.2d 284, 291; US. v Thornburg, (9th Cir.1996) 82 F.3d 886, 892. Thus, it is the holder of the Note whom possesses the right to exercise the power of sale clause in the deed of trust. Moreover, it is undisputed that the Note is a negotiable instrument within the meaning of California Commercial Code §3104. Here, Christiana Trust owns the Note, and its servicer and attorney-in-fact, Selene possesses the original Note signed by Plaintiff. Declaration of Winebarger, ¶ 4-5. To avoid any doubt, Selene can and will make the original Note available for the Court's review at the time of hearing on the instant motion, if the Court so desires. Declaration of Winebarger, ¶ 5. Thus, because Defendants are holders of the original Note, they are entitled to enforce the Note and in this case, foreclose on the Property. Cal. U. Com. Code § 3205(b) Comment No. 2; see also Cal. U. Corn. Code § 1201(b)(21)(A). There is no genuine dispute as to whether the recorded documents were executed by "valid" parties or whether Christiana Trust was a "valid beneficiary" of the Loan and Deed of Trust which Plaintiff is obligated to repay. Therefore, the Court should enter Judgment in favor of Defendants. /// /// 9 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 16 of 25 1 4. Plaintiff Cannot Show Damages or Prejudice. 2 It is well settled that to prevail on a claim attacking nonjudical foreclosure 3 proceedings, the plaintiff must demonstrate the alleged defect caused them actual damage 4 or prejudice. See Knapp v. Dougherty, (2004) 123 Cal.App.4th 76, 94; see also Moeller v. 5 Lien, (1994) 25 Cal.App.4th 822, 830-833; Debrunner v. Deutsche Bank National Trust 6 Co., 204 Cal.App.4th 433 (2012), Ram v. One West Bank, (2015) 234 Cal.App.4th 1, 18 7 ("the cases unmistakably establish a borrower's burden to show how the alleged defect in 8 the notice of default prejudiced the borrower's interests."). 9 Although California Courts of Appeal interpret the required "prejudice" for 10 wrongful foreclosure differently, Plaintiff here would not be prejudiced under any 11 analysis. The Third District Court of Appeal found that even if the foreclosing party 12 lacked the authority to foreclose, it still is difficult to conceive how a plaintiff who was in 13 default was prejudiced by the foreclosure. Kalnoki v. First American Trustee Servicing 14 Solutions, LLC, 8 Cal.App 5th 23, 48-49 (2017). Here, it is undisputed that Plaintiff was 15 in default at the time of the foreclosure. Declaration of Winebarger, ■R 7, Exhibit E; 16 Declaration of Chavez, If 10, Exhibit F, pg. 48, lines 15-21, pg. 49, lines 18-25. Plaintiff 17 admits that he was in arrears of over $375,000.00 in August 2015. Declaration of 18 Chavez, (11 10, Exhibit F, pg. 56, lines 16-22. Moreover, similar to the First District Court 19 of Appeal decision in Fontenot, Plaintiff here fails to plead any facts explaining how the 20 assignment interfered with his ability to cure his default by tendering the amount due. 21 Fontenot v. Wells Fargo Bank, NA., 198 Cal.App.4th 256, 272 (2011) (disapproved on 22 another point in Yvanova v. New Century Mortg. Corp., 62 Ca1.4th 919, 939, fn. 13 23 (2016)) ("Even if MFRS lacked authority to transfer the note, it is difficult to conceive 24 how plaintiff was prejudiced by MERS's purported assignment, and there is no allegation 25 to this effect."). 26 Even under the Fourth District Court of Appeal's analysis, only "a homeowner 27 who has been foreclosed on by one with no right to do so-by those facts alone-sustains 28 prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure. 10 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 17 of 25 When a non-debtholder forecloses, a homeowner is harmed by losing her home to an entity with no legal right to take it. Therefore, under those circumstances, the void assignment is the proximate cause of actual injury and all that is required to be alleged to satisfy the element of prejudice or harm in a wrongful foreclosure cause of action." Sciarratta v. U.S. Bank National Assn., 247 Cal.App.4th 552, 555 (2016) (emphasis added). Plaintiff simply cannot evidence how he could have suffered harm by any alleged "wrongful" conduct since he was not the homeowner who lost his home. RJN, No. 5; Declaration of Chavez, ¶ 6-7, Exhibit "B," Response to Special Interrogatory No. 31, Exhibit "C," Response to Request for Admission No. 35. Plaintiff admits that he signed the Grant Deed transferring the property to Nancy A.M. Lundy as her sole and separate property. Declaration of Chavez, 4if 10, Exhibit F, pg. 25, lines 4-18. Plaintiff admits that there was no change in ownership since this August 8, 2014 Grant Deed through the foreclosure sale. Declaration of Chavez, If 10, Exhibit F, pg. 26, lines 2-6. Plaintiff also admits that he has not resided in the Property since November 2012 when he moved into his home at 10020 Grove Street, Penngrove, Sonoma County, CA. Declaration of Chavez, ¶ 10, Exhibit F, pg. 9, lines 20-25, pg. 10, lines 1-6, pg. 51, lines 23-25. Plaintiff admits that Nancy A.M. Lundy rented the Property out to paying tenants from 2014 to the time of the foreclosure. Declaration of Chavez, if 10, Exhibit F, 23, lines 17- 25; pg. 51, lines 13-22, pg. 54, lines 12-17, pg 99, lines 6-25. Because Plaintiff could not make his loan payments starting in 2010, Plaintiff did not reside in the Property since 2012, and did not own the Property as of 2014, there is no triable issue of material fact as to this element of the Wrongful Foreclosure cause of action. B. PLAINTIFF'S CLAIM FOR VIOLATION OF CIVIL CODE SECTION 2924.17 IS UNSUPPORTED. California Civil Code, section 2924.17 ("Section 2924.17") subsection (a) provides, in pertinent part, that a declaration or foreclosure related notice (i.e., notice of 11 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 18 of 25 default, notice ofle, substitution of trustee, assignment of deed of trust) recorded ... in connection with a foreclosure ... shall be accurate and complete and supported by competent and reliable evidence. Section 2924.17(b) provides in pertinent part that "[Nefore recording ... any of the documents ... a mortgage servicer shall insure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose including the borrower's loan status and loan information." 1. There are No Triable Issues as to Whether the Assignments Were Flawed. Here, Plaintiff concludes that Selene failed to take steps to verify that the loan was in default and Defendant had the right to foreclose by failing to review the Assignment 2, SOT 2, and the NOD. Complaint ¶ 70. Plaintiff alleges that because those documents are invalid and void, there is a violation Section 2924.17. Complaint ¶ 70. However, as discussed above, Plaintiff's underlying theories of liability - that the Defendants do not have standing to foreclose are unsupported. The admissible evidence introduced by Defendants shows that all beneficial rights and interests under the Deed of Trust, including the right to foreclose, were transferred from JPMorgan, as successor-in-interest to WaMu to BANA as evidenced by Assignment 1 recorded with the Marin County Recorder's Office on November 4, 2010. Declaration of Winebarger, 113; RJN, No. 2. JPMorgan acquired WaMu's assets, including Plaintiff's Loan, from the FDIC through a Purchase and Assumption Agreement. RJN, No. 3; Declaration of Winebarger, ¶ 3, Exhibit C. As stated in a letter dated January 22, 2015 to Plaintiff, Christiana Trust acquired Plaintiff's Loan on or about December 23, 2014. Declaration of Winebarger, ¶ 4, Exhibit D. Assignment 2, evidencing the assignment from BANA to Christiana Trust was recorded with the Marin County Recorder's Office on March 11, 2015. RJN, No. 6. At the time of the foreclosure and currently, Selene possesses the original Note signed by Plaintiff. Declaration of Winebarger, ¶ 4-5. Defendants' admissible evidence directly refutes Plaintiff's conclusion that the assignments were flawed and instead shows that Selene reviewed competent and reliable evidence to substantiate Plaintiff's 12 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 19 of 25 1 -defaTli t and-thDefendants rikht to foreclose. Declaration of Winebarger, ¶ 4, 9. As 2 Plaintiff cannot support his claim that Defendants did not review competent and reliable 3 evidence to substantiate the borrower's default and the right to foreclose, this claim 4 should be resolved in favor of Defendants as a matter of law. 5 2. There are No Triable Issues as to Whether Plaintiff was in Default. 6 Here, Plaintiff admits that from September 1, 2010, he defaulted under the terms 7 of the Loan by failing to make the monthly payment due thereon and all payments 8 thereafter. Declaration of Winebarger, if 7-8; Declaration of Chavez, 11 10, Exhibit F, pg. 9 48, lines 15-21, pg. 49, lines 18-25. Plaintiff admits that he was in arrears of over 10 $375,000.00 in August 2015. Declaration of Chavez, If 10, Exhibit F, pg. 56, lines 16- 11 22. Thus, the evidence demonstrates that Selene accurately represented the borrower's 12 default when the NOD was recorded with the Marin County Recorder's Office on 13 August 14, 2015 stating a default amount of $375,690.78. RJN, No. 8, 9. 14 3. Plaintiff Cannot Demonstrate a Material Violation Anyway. 15 With respect to the Homeowner's Bill of Rights, ("HBOR"), in order "to protect 16 against any potential frivolous claims or efforts to merely delay legitimate foreclosure 17 proceedings,... no legal action whatsoever could be brought unless the violation is 18 material." Sen. Rules Corn., Off'. of Sen. Floor Analyses, 1st reading analysis of Assem. 19 Bill No. 278 (2011-2012 Reg. Sess.) as amended June 27, 2012, p. 32-33 ("[T]o protect 20 against any potential frivolous claims or efforts to merely delay legitimate foreclosure 21 proceedings... no legal action whatsoever could be brought unless the violation is 22 material.") 23 Plaintiff concedes that he was no longer the owner of the Property as of August 8, 24 2014, before the NOD, Assignment 2, and SOT 2 were recorded. Declaration of 25 Chavez, ¶ 10, Exhibit F, pg. 25, lines 4-18, pg. 26, lines 2-6. Plaintiff also admits that he 26 has not resided in the Property since before that. Declaration of Chavez, IT 10, Exhibit F, 27 pg. 9, lines 20-25, pg. 10, lines 1-6, pg. 51, lines 23-25. Thus, even if a technical 28 13 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 20 of 25 1 Falion of I-IBOR occurred, such was not sufficiently material so as to give rise to any 2 liability against Defendant Selene. See also Civil Code § 2924.12(b). 3 C. DEFENDANTS ARE ENTITLED TO JUDGMENT IN ITS FAVOR FOR 4 THE SEVENTH CLAIM FOR VIOLATION OF BUSINESS & 5 PROFESSIONS CODE 17200 ET SEQ. 6 To bring a claim under Business & Professions Code section 17200 ("UCL"), a 7 plaintiff must show either: (1) an unlawful, unfair, or fraudulent business act or practice; o 8 (2) unfair, deceptive, untrue, or misleading advertising. Stewart v. Life Ins. Co. ofNorth 9 America, 388 F.Supp.2d 1138, 1143 (2005); Cel-Tech Commc'ns, Inc. v. Los Angeles 10 Cellular Tel. Co., 973 P.2d 527, 540 (Cal. 1999). The claim must be supported by facts 11 described with reasonable particularity. Khoury v. Maly's of California, Inc., 14 12 Cal.App.4th 612, 619 (1993). 13 1. This Claim Rises and Falls With Plaintiff's Other Causes of Action. 14 Plaintiffs UCL claim fails for all of the same reasons as do his other claims (as 15 discussed above). In essence, Plaintiff cannot support his theories of liability with 16 evidence and, thus, he cannot evidence any conduct by Defendants that could be 17 classified as an unlawful, fraudulent, or unfair business act or practice. For the same 18 reasons, Plaintiff cannot provide any evidence to show any conduct by Defendants that 19 could constitute a violation of an antitrust law or violate the policy or spirit of such law. 20 See Wilson v. Hynek, 207 Cal.App.4th 999 (2012); Durrell v. Sharp Healthcare, 183 21 Cal.App.4th 1350, 1366 (2010). For the reasons set forth above, because all of the 22 remaining causes of action asserted in this Complaint fail, this cause of action for UCL 23 cannot stand. 24 2. Plaintiff Has No Standing. 25 To have standing to allege a violation of Section 17200, a plaintiff must allege 26 that he suffered an injury-in-fact as a result of the unfair competition and lost money or 27 property. In re Tobacco II Cases, 46 Ca1.4th 298, 316 (2009); Hale v. Sharp 28 Healthcare, 183 Cal.App.4th 1373, 1384 (2010); Bus. & Prof. Code § 17204. 14 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 21 of 25 In this case, Plaintiff voluntarildivested-himself of all ownership interest in the Property by executing a Grant Deed in favor of Nancy A.M. Lundy. RIN, No. 5; Declaration of Chavez, ¶ 6-7, Exhibit "B," Response to Special Interrogatory No. 31, Exhibit "C," Response to Request for Admission No. 35. In fact, Plaintiff concedes that he did not even reside at the Property at the time of the foreclosure sale. Declaration of Chavez, 1110, Exhibit F, pg. 9, lines 20-25, pg. 10, lines 1-6, pg. 51, lines 23-25. As such, he did not lose any money or property when the Property was foreclosed upon (after Plaintiff's admitted default). Similarly, the loss of money or property must be of a type that is subject to restitution. Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 817. Restitution is only available where "a defendant has wrongfully acquired funds or property in which a plaintiff has an ownership or vested interest." Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1012. Plaintiff fails to identify one dollar that Defendants have taken from him- again, the Loan has been in default since 2010 before Defendants had any ownership interest in the Loan. Moreover, the Property was not owned by Plaintiff, but by Nancy A.M. Lundy at the time of the foreclosure sale. Thus, Plaintiff cannot establish any injury-in-fact and judgment should be entered in favor of Defendants as a matter of law. V. CONCLUSION Due to the foregoing and the accompanying evidence, it has been demonstrated that there is (1) no genuine issue of material fact as to Plaintiff's claims against Defendants and (2) Defendants are entitled to Judgment as a matter of law. Therefore, Defendants respectfully request that its Motion be granted in its entirety and Judgment rendered summarily in its favor and against Plaintiff. /// /// /// /// 15 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 22 of 25 Alternatively, if the Court finds that a full summary judgment is not appropriate here, Defendants submit that, at a minimum, it has established a right to a partial summary judgment in its favor as to parts of the claims and defenses at issue, as discussed above. Respectfully Submitted, WRIGHT, FINLAY & ZAK, LLP Dated: March 23, 2017 By: /s/Ruby J. Chavez Gwen H. Ribar, Esq. Ruby J. Chavez, Esq. Attorney for Defendants, Selene Finance LP and Wilmington Savings Fund Society, FSB, doing Business as Christiana Trust, not in its individual capacity, but solely as trustee for BCAT 2014-12TT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 23 of 25 PROOF OF SERVICE I, Nancy C. Wheeler, declare as follows: I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. On March 23, 2017,1 served the within DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FO PARTIAL SUMMARY JUDGMENT, [Fed.R.Civ.P. 56], on all interested parties in thi action as follows: [x] by placing [ ] the original [ x ] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Charles T. Marshall, Esq. LAW OFFICES OF CHARLES T. MARSHALL 415 Laurel St., #405 San Diego, CA 92101 Telephone (619) 807-2628 Fax: 925-406-1616 Email: cmarshall@marshallestatelaw.com Attorney for Plaintiff; John F. Lundy Martin Kosla, Esq. Burke, Williams & Sorensen, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 213-236-2810 Fax: 213-236-2700 Email: mkosla@bwslaw.com Attorneys for Defendants, MTC FINANCIAL DBA TRUSTEE CORPS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 [ (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. 28 1 PROOF OF SERVICE Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 24 of 25 cy C. Wheeler 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 [x] (BY CERTIFIED MAIL SERVICE) I-placed such envelope(s) for collection to be mailed on this date following ordinary business practices, via Certified Mail, Retur Receipt Requested. (BY PERSONAL SERVICE) I caused personal delivery by ATTORNEY SERVICE of said document(s) to the offices of the addressee(s) as set forth on the attached service list. (BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 477- 9200, complied with California Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), I caused the machine to print a transmission record of the transmission, a copy of which is attached to the original Proof of Service. (BY GOLDEN STATE OVERNIGHT- NEXT DAY DELIVERY) I placed true an correct copies thereof enclosed in a package designated by Golden State Overnight with the delivery fees provided for. (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to th office(s) of the addressee(s) listed by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(b)(2)(E). "A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(b)(2)(E). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se." (Federal) I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on March 23, 2017, at Newport Beach, California. 26 27 28 2 PROOF OF SERVICE Case 3:15-cv-05676-JST Document 114 Filed 03/23/17 Page 25 of 25 WRIGHT, FINLAY &-ZAK, LLP Gwen H. Ribar, Esq., SBN 188024 Ruby J. Chavez, Esq., SBN 267405 4665 MacArthur Court, Suite 200 Newport Beach, CA 92660 Tel: (949) 477-5050; Fax: (949) 608-9142 gribar@wrightlegal.net; rchavez@wrightlegal.net Attorney for Defendants, Selene Finance LP and Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity, but solely as trustee for BCAT 2014-12TT UNITED STATES DISTRICT COURT CALIFORNIA NORTHERN DISTRICT (SAN FRANCISCO) JOHN F. LUNDY Plaintiff, VS. SELENE FINANCE, LP; MTC FINANCIAL d/b/a TRUSTEE CORPS; JPMORGAN CHASE BANK, N.A.; BANK OF AMERICA, N.A.; WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a CHRISTIANA TRUST, as trustee for BCAT 2014-12TT and DOES 1- 100 inclusive, Defendants. [Filed concurrently with Motion for Summary Judgment; Declarations; and Request for Judicial Notice On Thursday, April 27, 2017 at 2:00 p.m., or shortly thereafter, in Courtroom "9" of the above-captioned Court, came before the Court the regularly scheduled hearing on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 15-05676-JST [PROPOSED] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT [Fed.R.Civ.P. 56] Hearing: Date: Thursday, April 27, 2017 Time: 2:00 p.m. Crtrm: 9, 19th Floor [PROPOSED] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114-1 Filed 03/23/17 Page 1 of 5 the Motion for Summary Judgment or, In The Alternative, Fõ- Partial Summary Judgment of Defendants, Selene Finance, LP ("Selene") and Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity, but solely as trustee for BCAT 2014-12TT ("Wilmington") (collectively referred to as "Defendants") to Plaintiff, John Lundy's Complaint. After full consideration of the evidence, and the written and oral submissions by the parties, the Court finds that there are no triable issues of material fact and that Defendants are entitled to judgment as a matter of law against Plaintiff. THEREFORE IT IS ORDERED that: 1. Defendants' Motion for Summary Judgment as to Plaintiff's Complaint is granted in favor of Defendants and against Plaintiff because there are no genuine issues as to any material facts as to Plaintiff's claims and Defendants are entitled to judgment as a matter of law. Alternatively, IT IS HEREBY ORDERED that: 1. Defendants' Motion for Summary Judgment of Issues as to Issue No. 1 is Granted/Denied. Defendants are entitled to summary judgment of Plaintiff's alleged claim for Wrongful Foreclosure because Defendants' had standing to foreclose, Defendants' possess the original note, and Plaintiff lacks damages. 2. Defendants' Motion for Summary Judgment of Issues as to Issue No. 2 is Granted/Denied. Defendants are entitled to summary judgment of Plaintiff's alleged claim for Violation of Cal. Civil Code section 2924.17 because Defendants reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose. 3. Defendants' Motion for Summary Judgment of Issues as to Issue No. 3 is Granted/Denied. Defendants are entitled to summary judgment of Plaintiff's alleged claim for Violation of Bus. & Prof. Code section 17200 et seq. because Plaintiff cannot allege the required elements and lacks the required standing. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114-1 Filed 03/23/17 Page 2 of 5 IT IS SO ORDERED. Dated: ,2017 John S. Tigar United States District Judge 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT Case 3:15-cv-05676-JST Document 114-1 Filed 03/23/17 Page 3 of 5 PROOF OF SERVICE I, Nancy C. Wheeler, declare as follows: I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. On March 23, 2017, I served the within [PROPOSED] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT, [Fed.R.Civ.P. 56], on all interested parties in thi action as follows: [x] by placing [ ] the original [ x ] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Charles T. Marshall, Esq. LAW OFFICES OF CHARLES T. MARSHALL 415 Laurel St., #405 San Diego, CA 92101 Telephone (619) 807-2628 Fax: 925-406-1616 Email: cmarshall@marshallestatelaw.com Attorney for Plaintiff John F. Lundy Martin Kosla, Esq. Burke, Williams & Sorensen, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 213-236-2810 Fax: 213-236-2700 Email: mkosla@bwslaw.com Attorneys for Defendants, MTC FINANCIAL DBA TRUSTEE CORPS [ (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on thi date following ordinary business practices. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Case 3:15-cv-05676-JST Document 114-1 Filed 03/23/17 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [x]' (BY CERTIFIED MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices, via Certified Mail, Retu Receipt Requested. (BY PERSONAL SERVICE) I caused personal delivery by ATTORNEY SERVICE of said document(s) to the offices of the addressee(s) as set forth on the attached service list. (BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 477- 9200, complied with California Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), I caused the machine to print a transmission record of the transmission, a copy of which is attached to the original Proof of Service. (BY GOLDEN STATE OVERNIGHT- NEXT DAY DELIVERY) I placed true an correct copies thereof enclosed in a package designated by Golden State Overnight with the delivery fees provided for. (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to th office(s) of the addressee(s) listed by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(b)(2)(E). "A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(b)(2)(E). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se." (Federal) I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on March 23, 2017, at Newport Beach, California. 2efistoa Nancy C. Wheeler 2 PROOF OF SERVICE Case 3:15-cv-05676-JST Document 114-1 Filed 03/23/17 Page 5 of 5
