Herrera Decision Goes Public: It’s Official

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

SEE HERRERA DECISION CLICK HERE

EDITOR’S NOTE: Courts are getting increasingly bold. The Herrera Decision had broad application in favor of borrowers but was initially announced as “not for publication” which is another way of saying that the decision is not binding on the courts below. Now it is binding.

Filed 5/31/11; partial pub. cert. & mod. 6/28/11 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
ROBERT HERRERA et al.,
Plaintiffs and Appellants,
v.
DEUTSCHE[1] BANK NATIONAL TRUST COMPANY et al.,
Defendants and Respondents.

C065630
(Super. Ct. No. SC20090170)

The opinion in the above-entitled matter filed on May 31,
2011, was not certified for publication in the Official Reports.
For good cause it now appears that the opinion should be
partially published in the Official Reports and it is so
ordered.

13 Responses

  1. The Bank at no time showed any evidence much less proof they ever held an original promissory note to perfect their claim. That in and of itself negates the trust deed as it is security for the promissory note. Federal rulings affurm that without the original note, no foreclosure can take place. Where a title company has pulled all available documents regarding a property, you cannot claim lack of due diligence on the part of the buyer. A holder of a second on a property is supposed to be notified of the default to allow them to cure the default and take possession of the property taking over the payments. The facts as outlined would support the homeowner in this case.

  2. @ Abby in CA

    Please take note:

    Certified for Partial Publication. FN*
    As Modified June 28, 2011.

    (Cite as: 2011 WL 2547979 (Cal.App. 3 Dist.))— Cal.Rptr.3d —-, 2011 WL 2547979 (Cal.App. 3 Dist.), 11 Cal. Daily Op. Serv. 8030

    Briefs and Other Related Documents
    Court of Appeal, Third District, California.
    Robert HERRERA et al., Plaintiffs and Appellants,
    v.
    DEUTSCHE BANK NATIONAL TRUST COMPANY et al., Defendants and Respondents.

    No. C065630.

    May 31, 2011.
    Certified for Partial Publication.FN*
    As Modified June 28, 2011.

    Background: Homeowners brought action against bank and reconveyance company to set aside nonjudicial foreclosure sale, to cancel trustee’s deed, and to quiet title. The Superior Court, El Dorado County, No. SC20090170, Steven C. Bailey, J., granted summary judgment for defendants. Homeowners appealed.

    Holdings: The Court of Appeal, Murray, J., held that:
    (1) trial court could not take judicial notice of disputed facts in recorded documents;
    (2) summary judgment declaration of reconveyance company’s vice president did not establish identity of trustee and beneficiary under deed of trust; and
    (3) defendants failed to establish that recorded documents were within business record exception to hearsay rule.

    Affirmed in part and reversed in part.

    West Headnotes

    [1] KeyCite Citing References for this Headnote

    157 Evidence

    “Judicial notice” is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. West’s Ann.Cal.Evid.Code § 450.

    [2] KeyCite Citing References for this Headnote

    157 Evidence

    A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. West’s Ann.Cal.Evid.Code § 450 et seq.

    [3] KeyCite Citing References for this Headnote

    157 Evidence

    Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.

    [4] KeyCite Citing References for this Headnote

    157 Evidence

    While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.

    [5] KeyCite Citing References for this Headnote

    157 Evidence

    When judicial notice is taken of a document, the truthfulness and proper interpretation of the document are disputable.

    [6] KeyCite Citing References for this Headnote

    157 Evidence

    Trial court could not take judicial notice that a bank was the present beneficiary under a deed of trust, even though that alleged fact was recited in a recorded substitution of trustee and a recorded assignment of deed of trust, since the recitation was hearsay. West’s Ann.Cal.Evid.Code § 450.

    See Cal. Jur. 3d, Evidence, §§ 17, 76; Cal. Civil Practice (Thomson Reuters 2011) Torts, § 44:62; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2011) ¶ 8:868 (CACIVEV Ch. 8C-J); 1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, §§ 19, 35.

    [7] KeyCite Citing References for this Headnote

    157 Evidence

    Trial court could not take judicial notice that a reconveyance company was the trustee under a deed of trust, even though that alleged fact was recited in a recorded substitution of trustee, since the recitation was hearsay. West’s Ann.Cal.Evid.Code § 450.

    [8] KeyCite Citing References for this Headnote

    157 Evidence

    Summary judgment declaration of reconveyance company’s vice president and custodian of records that an assignment of deed of trust and a substitution of trustee were recorded on a certain date was insufficient to establish that the reconveyance company was the trustee under the deed of trust and that the bank named in the documents was the present beneficiary, since vice president’s declaration established only that the documents were recorded.

    [9] KeyCite Citing References for this Headnote

    228 Judgment

    Summary judgment declaration of reconveyance company’s vice president and custodian of records that an assignment of deed of trust indicated that all beneficial interest in connection with a deed of trust had been transferred to a certain bank was insufficient to show that vice president had personal knowledge that the bank was the beneficiary; at most, the declaration showed she could testify as to what the assignment of deed of trust “indicates.” West’s Ann.Cal.C.C.P. § 437c(d).

    [10] KeyCite Citing References for this Headnote

    157 Evidence

    Bank and reconveyance company failed to establish that an assignment of deed of trust and a substitution of trustee were admissible under the business record exception to the hearsay rule, in homeowners’ action to set aside nonjudicial foreclosure sale, absent evidence that the sources of the information and the manner and time of preparation were such as to indicate trustworthiness. West’s Ann.Cal.Evid.Code §§ 1271(d), 1561.

    [11] KeyCite Citing References for this Headnote

    228 Judgment

    On a motion for summary judgment, the affidavits or declarations of the moving party are strictly construed against the moving party.

    [12] KeyCite Citing References for this Headnote

    228 Judgment

    Summary judgment declaration of reconveyance company’s vice president and custodian of records that a substitution of trustee substituted the original trustee for the reconveyance company was insufficient to establish that reconveyance company was the trustee, absent evidence that the bank named in the substitution of trustee was the beneficiary under the deed of trust and thus had the authority to substitute the trustee.

    [13] KeyCite Citing References for this Headnote

    30 Appeal and Error

    Court of Appeal would consider homeowners’ hearsay objections to separate statement of facts on the merits, in homeowners’ appeal from summary judgment for bank and reconveyance company in homeowners’ action to set aside nonjudicial foreclosure sale, even if the hearsay objections did not comply with format requirements of the California Rules of Court, where the wording of the trial court’s order suggested its ruling on the objections was made on substantive evidentiary grounds, not procedural grounds, and there was no evidence in the record to the contrary. Cal.Rules of Court, Rule 3.1354(b).

    APPEAL from a judgment of the Superior Court of El Dorado County, Steven C. Bailey, Judge. Reversed in part and affirmed in part.
    Terry J. Thomas for Plaintiffs and Appellants.

    AlvaradoSmith, Rick D. Navarrette, Theodore E. Bacon, Amy L. Morse and Frances Q. Jett for Defendants and Respondents.

    MURRAY, J.

    SUMMARY
    *1
    (Cite as: 2011 WL 2547979, *1 (Cal.App. 3 Dist.))Plaintiffs Robert and Gail Herrera lost their house in South Lake Tahoe to a nonjudicial foreclosure sale. They brought suit to set aside that sale. They challenge whether the parties that conducted the sale, defendants Deutsche FN1 Bank National Trust Company (the Bank) and California Reconveyance Company (CRC), were in fact the beneficiary and trustee, respectively, under a deed of trust secured by their property, and thus had authority to conduct the sale. Plaintiffs also contend that they are entitled to be repaid for the expenses they incurred in repairing and insuring the property and paying back taxes if defendants are successful in establishing their interest in the property.

    Defendants moved for summary judgment. In support of their motion, they requested that the trial court take judicial notice of recorded documents, including an Assignment of Deed of Trust and a Substitution of Trustee. Defendants asserted that these documents established the authority of the Bank and CRC to conduct the foreclosure sale. Defendants also provided a declaration by a custodian of records for CRC, in which the custodian did not expressly declare that the Bank was the beneficiary and CRC the trustee. Instead, she merely declared that an Assignment of Deed of Trust and a Substitution of Trustee had been recorded and these recorded documents indicated the Bank had been assigned the deed of trust and that CRC had been substituted as trustee.

    Plaintiffs appeal from a judgment after the trial court granted defendants’ motion for summary judgment. They contend defendants failed to carry their burden in moving for summary judgment and the trial court erred in taking judicial notice of and accepting as true the contents of certain recorded documents. We agree. In the published portion of the opinion, we hold that the trial court erred in accepting the contents of certain recorded document as true and relying upon that information in determining the summary judgment motion. Accordingly, we reverse the judgment in part.

    *10
    (Cite as: 2011 WL 2547979, *10 (Cal.App. 3 Dist.))In the unpublished portion of the opinion, we affirm the judgment as to the fourth cause of action, plaintiff’s claim of unjust enrichment.

    FACTUAL AND PROCEDURAL BACKGROUND
    In June of 2008, plaintiffs purchased the property at 739 Alameda Avenue, South Lake Tahoe (the Property) at a foreclosure sale. On February 27, 2009, CRC recorded a “Notice of Default and Election to Sell [the Property] Under Deed of Trust.” On May 29, 2009, CRC recorded a Notice of Trustee’s Sale. On July 6, 2009, CRC recorded a Trustee’s Deed upon Sale, showing the Property had been conveyed to the Bank, as foreclosing beneficiary. Plaintiffs brought suit against the Bank, CRC and others to set aside the sale, cancel the trustee’s deed, quiet title to the Property, and for unjust enrichment.

    In the first cause of action, plaintiffs sought to set aside the trustee’s sale. Plaintiffs alleged they purchased “this run-down, filthy, distressed property” at a foreclosure sale, rehabilitated and repaired the Property and paid over $4,000 in back property taxes. They had no idea there might be a deed of trust from 2003, as it did not appear in the title search. About a year later, after plaintiffs had completed repair work on the Property, the Bank asserted an ownership interest in the Property. The Bank claimed to be the owner of the Property by virtue of a trustee’s deed recorded “by an entity purporting to be the trustee.”

    *2
    (Cite as: 2011 WL 2547979, *2 (Cal.App. 3 Dist.))In seeking to set aside the trustee’s sale, plaintiffs alleged that during the year they were the owners of the Property, they never received any notices of assignment of trustee’s deeds or notices of deficiency, nor did they receive any notices of trustee’s sale or trustee’s deeds. They alleged, on information and belief, that “CRC may be, or have been the Trustee, on a purported Trustee’s sale of the subject property, to an entity which may have transferred whatever interest may have been acquired in the trustee’s sale to Defendant Deutsch[e].” Plaintiffs alleged CRC was not the trustee and had no authority to conduct a trustee’s sale, and believed no such sale had taken place. They further alleged any promissory note supporting the 2003 deed of trust was “time barred by the statute” and the maker, if any, “was lulled into believing that no action would be taken to enforce the 2003 [deed of trust] because no collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.”

    In the second cause of action, plaintiffs sought to cancel the trustee’s deed. Plaintiffs alleged the original promissory note and deed of trust no longer existed and the Bank’s deed was invalid “as it is based solely upon purported copies which have no force and effect.”

    The third cause of action was to quiet title to the Property. Plaintiffs alleged defendants had no original, verifiable promissory note or deed of trust and had no standing to foreclose. They further alleged all rights, title and interest asserted by defendants “were sublimated into a non-functional ‘security’ instrument that gives no one entity rights in individual notes and deeds of trust.” No defendant had an interest in the Property, but they had placed a cloud upon plaintiffs’ title.

    In the fourth cause of action, entitled unjust enrichment, plaintiffs alleged they had paid back taxes, insured the Property, and repaired deferred maintenance. If defendants were successful in claiming an interest in the Property, plaintiffs wanted to be repaid for their expenditures.

    The Bank and CRC moved for summary judgment or summary adjudication on each cause of action, contending there was no triable issue of fact as to any of plaintiffs’ claims. They claimed the undisputed evidence showed that the loan was in default, the Bank was the beneficiary under the deed of trust and CRC was the trustee. The default was not cured and CRC properly noticed the trustee’s sale. Notice of the sale was sent to plaintiffs and California law did not require the original promissory note to foreclose. The Bank and CRC further contended that to quiet title, plaintiffs must allege tender, or an offer of tender, of the amount owed. They also contended there was no evidence of unjust enrichment.

    In support of their motion, defendants requested that the court take judicial notice of certain documents pursuant to Evidence Code sections 451, subdivision (f) and 452, subdivisions (d), (g) and (h). These documents were:

    *3
    (Cite as: 2011 WL 2547979, *3 (Cal.App. 3 Dist.))(1) the Trustee’s Deed upon Sale recorded August 13, 2008, under which plaintiffs took title to the Property;

    (2) a Grant Deed recorded December 13, 2002, showing the transfer of the Property to Sheryl Kotz;

    (3) the Deed of Trust recorded April 30, 2003, with Sheryl Kotz as trustor and Long Beach Mortgage Company as trustee and beneficiary (the 2003 deed of trust);

    (4) an Assignment of Deed of Trust recorded February 27, 2009, assigning all interest under the 2003 deed of trust to the Bank by JPMorgan Chase Bank, as successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company;

    (5) a Substitution of Trustee recorded February 27, 2009, under which the Bank substituted CRC as trustee under the 2003 deed of trust;

    (6) a “Notice of Default and Election to Sell [the Property] Under Deed of Trust” recorded February 27, 2009;

    (7) a Notice of Trustee’s Sale under the 2003 deed of trust recorded May 29, 2009; and

    (8) a Trustee’s Deed upon Sale recorded July 6, 2009, under which the Bank, as foreclosing beneficiary, was the grantee of the Property.

    To support their motion, defendants also provided the declaration of Deborah Brignac. Brignac was a vice-president of CRC and a custodian of records for CRC. She was one of the custodians of records for the loan that was the subject of plaintiffs’ complaint. She declared that the CRC loan records were made in the ordinary course of business by persons with a duty to make such records and were made about the time of the events reflected in the records. In April of 2003, “Shelia” [ sic ] Kotz FN2 obtained a $340,000 loan from Long Beach Mortgage Company, and the loan was secured by a deed of trust on the Property. The 2003 deed of trust provided for a power of sale if the borrower defaulted and failed to cure the default. It also provided that successor trustees could be appointed.

    Brignac further declared that as of February 26, 2009, $10,970.50 was “owed” on the note.FN3 An assignment of the 2003 deed of trust was recorded February 27, 2009, indicating the transfer of all interest in the 2003 deed of trust to the Bank. A Substitution of Trustee was recorded the same date. According to Brignac’s declaration, the Bank’s substitution “substitutes the original trustee, Long Beach Mortgage Company for [CRC].”

    Brignac further declared that a Notice of Default and Election to Sell under Deed of Trust was recorded on February 27, 2009, and copies were sent to plaintiffs on March 4, 2009, as shown in the affidavits of mailing attached to her declaration. A Notice of Trustee’s Sale was recorded on May 29, 2009. Copies of this notice were mailed to plaintiffs, as shown in the attached affidavits of mailing.FN4 The loan was not reinstated. The Property was sold at a trustee’s sale on June 25, 2009. At the time of sale, the total unpaid debt was $336,328.10. At no time before the trustee’s sale did plaintiffs tender the unpaid debt.

    *4
    (Cite as: 2011 WL 2547979, *4 (Cal.App. 3 Dist.))The Bank and CRC filed a separate statement of undisputed facts setting forth the facts as stated in Brignac’s declaration.

    In response, plaintiffs admitted the description of the Property and that they purchased it on June 24, 2008, at a foreclosure sale; they disputed all of the remaining facts. They asserted that the Brignac declaration was without foundation and contained hearsay and that all of the recorded documents contained hearsay.

    In their opposition to the motion for summary judgment, plaintiffs began with a diatribe against the “Foreclosure Industry,” asserting the industry operated “as if the Evidence Code, the law of contracts, assignments, deeds of trust and foreclosure are merely optional.” They contended defendants failed to meet their burden of proof for summary judgment because their request for judicial notice and Brignac’s declaration were inadmissible hearsay. They further contended the notice of default and the notice of trustee’s sale failed to meet statutory requirements of California law. Finally, they asserted defendants lacked standing to foreclose because they had not produced even a copy of the promissory note.

    Plaintiffs moved to strike the declaration of Brignac as lacking foundation and containing hearsay. They also opposed the request for judicial notice. They argued the recorded documents were all hearsay. Citing only the Federal Rules of Evidence and federal case law grounded on the federal rules, plaintiffs argued a court cannot take judicial notice of disputed facts contained in a hearsay document. Plaintiffs disputed “virtually everything” in the recorded documents, arguing one can record anything, regardless of its accuracy or correctness.

    The trial court overruled plaintiffs’ hearsay objections, denied plaintiffs’ motion to strike the Brignac declaration, granted defendants’ request for judicial notice, and granted defendants’ motion for summary judgment, finding no triable issue of material fact. Judgment was entered in favor of the Bank and CRC.

    DISCUSSION
    I. Law of Summary Judgment and Standard of Review FN**
    II. First, Second and Third Causes of Action
    *5
    (Cite as: 2011 WL 2547979, *5 (Cal.App. 3 Dist.))While plaintiffs’ complaint is hardly a model of clarity, it seeks to undo the foreclosure sale. The first three causes of action—to set aside the sale, cancel the trustee’s deed and quiet title—claim, among other things, that the Bank and CRC had no authority to conduct the foreclosure sale. On this point, plaintiffs allege the Bank claims to be the owner of the Property by virtue of a trustee’s deed recorded “by an entity purporting to be the trustee.” They further allege CRC was not the trustee and had no authority to conduct the sale; the sale did not take place or was improperly held. The first three causes of action of plaintiffs’ complaint are based on the allegations that the Bank had no interest in the Property and CRC was not the trustee and had no authority to conduct a trustee’s sale. Thus, initial issues framed by the pleadings are whether the Bank was the beneficiary under the 2003 deed of trust and whether CRC was the trustee under that deed of trust. The fourth cause of action for unjust enrichment raises different issues and will be discussed separately in part the unpublished portion of this opinion .

    Defendants moved for summary judgment on the basis that plaintiffs’ allegations were not supported by the undisputed facts. They asserted CRC was the trustee pursuant to the Substitution of Trustee recorded by the Bank as beneficiary under the 2003 deed of trust.

    To establish that CRC was the trustee and thus had authority to conduct the trustee’s sale, defendants requested that the trial court take judicial notice of the recorded Assignment of Deed of Trust, which showed the Bank was the beneficiary. Defendants also requested that the trial court take judicial notice of the recorded Substitution of Trustee, which showed the Bank, as beneficiary, had substituted CRC as trustee.

    *6
    (Cite as: 2011 WL 2547979, *6 (Cal.App. 3 Dist.))Matters that may be judicially noticed can support a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (b)(1).) However, plaintiffs contend the trial court erred in taking judicial notice of the disputed facts contained within the recorded documents. We agree.

    [1] “ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ “ ( Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882, 110 Cal.Rptr.2d 877.)

    [2] “Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid.Code, § 450.) “Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.]” ( Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113, 55 Cal.Rptr.3d 621.)

    [3] [4] [5] “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” ( Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374, 228 Cal.Rptr. 878.) While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. ( Love v. Wolf (1964) 226 Cal.App.2d 378, 403, 38 Cal.Rptr. 183.) “When judicial notice is taken of a document, … the truthfulness and proper interpretation of the document are disputable.” ( StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, 84 Cal.Rptr.2d 843, 976 P.2d 214, fn. 9 ( StorMedia ).)

    This court considered the scope of judicial review of a recorded document in Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 62 Cal.Rptr.3d 59 ( Poseidon ). “[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley ‘is the present holder of beneficial interest under said Deed of Trust.’ By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot be considered not reasonably subject to dispute.” ( Id. at p. 1117, 62 Cal.Rptr.3d 59 .)

    [6] The same situation is present here in the context of this residential mortgage foreclosure litigation. The Substitution of Trustee recites that the Bank “is the present beneficiary under” the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trial court could not take judicial notice of it. Nor does taking judicial notice of the Assignment of Deed of Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that JPMorgan Chase Bank, “successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST TO LONG BEACH MORTGAGE COMPANY” assigns all beneficial interest under the 2003 deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The truthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute ( StorMedia, supra, 20 Cal.4th at p. 457, fn. 9, 84 Cal.Rptr.2d 843, 976 P.2d 214), and plaintiffs dispute the truthfulness of the contents of all of the recorded documents.

    *7
    (Cite as: 2011 WL 2547979, *7 (Cal.App. 3 Dist.))[7] Judicial notice of the recorded documents did not establish that the Bank was the beneficiary or that CRC was the trustee under the 2003 deed of trust. Defendants failed to establish “facts justifying judgment in [their] favor” ( Bono, supra, 103 Cal.App.4th at p. 1432, 128 Cal.Rptr.2d 31), through their request for judicial notice.

    [8] Defendants also relied on Brignac’s declaration, which declared that the 2003 deed of trust permitted the beneficiary to appoint successor trustees. Brignac, however, did not simply declare the identity of the beneficiary and the new trustee under the 2003 deed of trust. Instead, she declared that an Assignment of Deed of Trust and a Substitution of Trustee were recorded on February 27, 2009. These facts add nothing to the judicially noticed documents; they establish only that the documents were recorded.

    [9] Brignac further declared that “[t]he Assignment of Deed of Trust indicates that JPMorgan Bank [ sic ], successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, transfers all beneficial interest in connection with the [deed of trust] to Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003–4.” (Italics added.) This declaration is insufficient to show the Bank is the beneficiary under the 2003 deed of trust. A supporting declaration must be made on personal knowledge and “show affirmatively that the affiant is competent to testify to the matters stated.” (Code Civ. Proc., § 437c, subd. (d).) Brignac’s declaration does not affirmatively show that she can competently testify the Bank is the beneficiary under the 2003 deed of trust. At most, her declaration shows she can testify as to what the Assignment of Deed of Trust “indicates.” But the factual contents of the assignment are hearsay and defendants offered no exception to the hearsay rule prior to oral argument to make these factual matters admissible.

    [10] At oral argument, defendants contended that the recorded documents were actually business records and admissible under the business record exception. We note that Brignac did not provide any information in her declaration establishing that the sources of the information and the manner and time of preparation were such as to indicate trustworthiness. (Evid.Code, § 1271, subd. (d).) FN5 Information concerning this foundational element was conspicuously lacking.FN6 Yet, this information was critical in light of the evidentiary gap establishing the purported assignments from Long Beach Mortgage Company to Washington Mutual Bank to JPMorgan Chase Bank. The records used to generate the information in the Assignment of Deed of Trust, if they exist, were undoubtedly records not prepared by CRC, but records prepared by Long Beach Mortgage Company, Washington Mutual and JPMorgan Chase. Defendants have not shown how Brignac could have provided information about the source of that information or how those documents were prepared. (See Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 45 Cal.Rptr.3d 183 [district attorney unable to attest to attributes of subpoenaed records in his possession relevant to their authenticity and trustworthiness]; Evid.Code, § 1561.) Moreover, the timing of those purported assignments relative to the recording of those events on the Assignment of Deed of Trust cannot be found in the Brignac declaration or anywhere else in the record.

    *8
    (Cite as: 2011 WL 2547979, *8 (Cal.App. 3 Dist.))[11] We also note that Brignac did not identify either the February 27, 2009 Assignment of Deed of Trust, or another key document, the February 27, 2009 Substitution of Trustee, as business records in her declaration. Rather, she referenced both documents in her declaration by stating that “[a] recorded copy” was attached as an exhibit. In light of the request for judicial notice, we take this statement to mean that the exhibits represented copies of records on file at the county recorder’s office.FN7 On a motion for summary judgment, the affidavits or declarations of the moving party are strictly construed against the moving party. ( Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134 ( Mann ).) Of course, had the documents reflecting the assignments and the substitution been offered as business records, there would have been no need to request that the court take judicial notice of them. Accordingly, we reject defendants’ newly advanced theory.

    [12] Brignac’s declaration is lacking in yet another way. It is confusing as to the effect of the Substitution of Trustee. She declares, “The Substitution by Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003–4 substitutes the original trustee, Long Beach Mortgage Company for California Reconveyance Company.” Brignac’s declaration (and defendants’ statement of undisputed facts) can be read to state that the Bank substituted Long Beach Mortgage Company for CRC as trustee, rather than that CRC was substituted for Long Beach Mortgage Company. We must strictly construe this statement against the moving party. ( Mann, supra, 38 Cal.3d at p. 35, 210 Cal.Rptr. 762, 694 P.2d 1134.) Even if we were to construe Brignac’s declaration to state that the Bank substituted CRC as trustee under the 2003 deed of trust, it would be insufficient to establish CRC is the trustee. A declaration that the Substitution of Trustee by the Bank made CRC trustee would require admissible evidence that the Bank was the beneficiary under the 2003 deed of trust and thus had the authority to substitute the trustee. As explained ante, defendants failed to provide admissible evidence that the Bank was the beneficiary under the 2003 deed of trust.

    [13] At oral argument, defendants asserted that plaintiffs’ hearsay objections to their separate statement of facts did not comply with the California Rules of Court. (See Cal. Rules of Court, rule 3.1354(b).) From this, defendants impliedly suggest those objections should be ignored by this court. Whether the objections complied with the rules of court is of no moment at this juncture. The trial court ruled on those objections in its order granting summary judgment, stating “Plaintiffs’ hearsay objections are overruled.” The wording of the court’s order (drafted by defendants) suggests the ruling was made on substantive evidentiary grounds, not procedural grounds, and there is no evidence in the record to the contrary.

    Because defendants failed to present facts to establish that the Bank was beneficiary and CRC was trustee under the 2003 deed of trust, and therefore had authority to conduct the foreclosure sale, triable issues of material fact remain as to the first three causes of action. The trial court erred in granting summary judgment and it would be error to grant summary adjudication as to any of those causes of action.

    III. Fourth Cause of Action FN***
    DISPOSITION
    *9
    (Cite as: 2011 WL 2547979, *9 (Cal.App. 3 Dist.))The judgment is reversed with directions to vacate the order granting summary judgment and to enter a new order denying summary judgment as to the first three causes of action, and granting defendants summary adjudication of the fourth cause of action only. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

    We concur: RAYE, P.J., and NICHOLSON, J.

    FN* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I. and III. of the Opinion.

    FN1. The name of defendant Deutsche Bank National Trust Company was misspelled “Deutsch” by plaintiffs in the complaint and other filings. We use the correct spelling in our opinion.

    FN2. The recorded documents attached to Brignac’s declaration indicate that the first name of Ms. Kotz is “Sheryl,” not “Shelia .”

    FN3. Because Brignac later stated in her declaration that the total unpaid debt and costs amounted to $336,328.10, we assume Brignac intended to state that payments were $10,970.50 in arrears, not that $10,970.50 was “owed.”

    FN4. The affidavits of mailing attached to Brignac’s declaration showed the Notice of Default and the Notice of Trustee’s Sale were mailed to plaintiffs at a post office box and at the address of the subject property by both first-class and certified mail.

    FN** See footnote *, ante.
    FN5. Brignac stated the following in her declaration concerning the foundational elements for the business records exception:

    “1. I am a Vice President of California Reconveyance Company (‘CRC’). I am also a custodian of records for CRC and am one of the custodians of records for the loan which is the subject of plaintiffs’ Complaint in this case. These records include computer records and written correspondence. I make this declaration based on my review of these records, as well as plaintiffs’ Complaint. If called as a witness in this case, I am competent to testify of my own personal knowledge, to the best of my recollection, as to the matters set forth in this Declaration. [¶] 2. The CRC loan records were made in the ordinary course of business by individuals who had a business duty to make such entries and records, and were made at or about the time of the events reflected in the records.”

    No further attempt was made to establish the foundational elements for the business record exception.
    FN6. Indeed, contrary to defendants’ assertion in the respondents’ brief that “Ms. Brignac attested to the validity of the documents attached as exhibits to her declaration … -documents which she declared under penalty of perjury were true and correct copies,” there is no statement by Brignac anywhere in her declaration that the documents were true and correct copies.

    FN7. The only description she provided in her declaration concerning the business records upon which she relied was that “[t]hese records include computer records and correspondence.” (See fn. 4, ante.) This statement is ambiguous in that it could mean only computer records and correspondence were relied upon or that the records she reviewed included, but were not limited to, computer records and correspondence. In any event, she did not identify the recorded documents as business records.

    FN*** See footnote *, ante.
    Cal.App. 3 Dist.,2011.
    Herrera v. Deutsche Bank Nat. Trust Co.
    — Cal.Rptr.3d —-, 2011 WL 2547979 (Cal.App. 3 Dist.), 11 Cal. Daily Op. Serv. 8030

    Briefs and Other Related Documents (Back to top)

    • 2010 WL 5275172 (Appellate Brief) Respondents’ Brief (Dec. 9, 2010) Original Image of this Document (PDF)
    • C065630 (Docket) (Jul. 16, 2010)
    END OF DOCUMENT

  3. BE CAREFUL USING HERRARA CASE

    IT IS NOT FOR PUBLICATION (MEANING IT SHOULD NOT BE CITED–AS IN YOUR LEGAL DOCUMENTS)

    RE: Case opinions of the California Supreme Court and Courts of Appeal

    Published Opinions

    Published Opinions of the appellate courts are opinions certified for publication or ordered published and may be cited or relied on by courts and parties.

    Official Reports Opinions (Searchable 1850-Present) are the searchable, citable, published opinions that reflect postfiling corrections.
    Slip Opinions are as-filed versions of opinions. Slip opinions certified for publication do not reflect enhancement, editing and correction for the Official Reports.

    Unpublished Opinions

    Unpublished Opinions of the California Courts of Appeal are opinions not certified for inclusion in the Official Reports that are not generally citable as precedent.

    Unpublished Opinions are posted for 60 days solely as public information about actions taken by the Courts of Appeal.

  4. 2010 WL 5275172 (Cal.App. 3 Dist.) (Appellate Brief)
    For opinion see 11 Cal. Daily Op. Serv. 8030, 2011 WL 2136398

    Court of Appeal, Third District, California.
    Robert HERRERA and Gail Herrera, Plaintiffs and Appellants,
    v.
    DEUTSCH [SIC] BANK NATIONAL TRUST COMPANY, as Trustee for Long Beach Mortgage Loan Trust 2003-4 and California Reconveyance Company, Defendants and Respondents.

    No. C065630.

    December 9, 2010.

    [Superior Court Case No. SC20090170]
    Appeal from the Superior Court of the State of California for the County of El Dorado, Honorable Steven S. Bailey, Judge Presiding

    Respondents’ Brief

    Theodore E. Bacon, Esq., Amy L. Morse, Esq., Frances Q. Jett, Esq., Alvarado Smith, A Professional Corporation, 633 W. Fifth Street, Suite 1100, Los Angeles, CA 90071, Tel: (213) 229-2400; Fax: (213)229-2499, Attorneys for Defendants/respondents Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2003-4 and California Reconveyance Company.

    *I TABLE OF CONTENTS

    I. INTRODUCTION … 1

    II. STATEMENT OF THE CASE … 4

    A. Statement of Facts … 4

    B. Procedural History … 5

    C. Issue Presented for Review … 7

    III. STANDARD OF REVIEW … 7

    IV. ARGUMENT … 8

    A. The Trial Court Properly Granted Summary Judgment as Plaintiffs Failed to Raise Any Triable Issues of Material Fact … 8

    B. Appellants Impermissibly Attempted to Insert New Claims into the Action … 8

    C. Plaintiffs Failed to Submit Any Evidence Controverting the Facts … 10

    D. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Set Aside Trustee’s Sale Because There Were No Triable Issues of Fact … 14

    E. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Cancel Trustee’s Deed Because There Were No Triable Issues of Fact … 15

    *i F. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Quiet Title Because There Were No Triable Issues of Fact … 16

    1. Appellants Cannot Establish Any Facts Affecting the Validity of the Trustee’s Deed Upon Sale to Warrant the Remedy of Quiet Title … 17

    2. Plaintiffs Cannot Establish That They Can Tender the Amounts Owing Under the Subject DOT to Quiet Title … 18

    G. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim for Unjust Enrichment, Because Appellants Could Not Establish They Were Entitled to Recovery Any Amounts from Respondents … 18

    V. CONCLUSION … 20

    *ii TABLE OF AUTHORITIES

    State Cases

    Arnolds Management Corp. v. Eischen, 158 Cal.App.3d 575 (1984) … 18

    Dillon v. Sumner, 153 Cal.App.2d 638 (1957) … 13

    Dool v. The First National Bank of Calexico, 207 Cal. 347 (1929) … 18

    Durbin v. Fletcher, 165 Cal.App.3d 334 (1985) … 12

    First Nationwide Savings v. Perry, 11 Cal.App.4th 1657 (1992) … 19

    Havstad v. Fidelity Nat’l Title Ins. Co., 58 Cal.App.4th 654 (1997) … 8

    In re Kerner’s Estate, 275 Cal.App.2d 785 (1969) … 13

    Kroeker v. Hulbert, 38 Cal.2d 261 (1940) … 17

    Lectrodryer v. SeoulBank, 77 Cal.App.4th 723, (2000) … 19

    Moss Estate Co. v. Adler, 41 Cal.2d 581 (1953) … 17

    O’Brien v. O’Brien, 197 Cal. 577 (1925) … 18

    Robinson v. Hewlett-Packard Corp., 183 Cal.App.3d 1108 (1986) … 10

    Saldana v. Globe-Weis Systems Co., 233 Cal.A3d 1505 (1991) … 7

    Sly v. Abbott, 89 Cal.App. 209 (1928) … 17

    Trujillo v. First American Registry, 157 Cal.App.4th 628 (2007) … 12

    *iii Truslow v. Woodruff, 252 Cal.App. 2d 158 (1967) … 12

    Uriarte v. United States Pipe & Foundry Co., 51 Cal.App.4th 780 (1996) … 8

    Western Life Inso. Co., 8 Cal.App. 4th 633 (1992) … 10

    Wiener v. Southcoast Childcare Ctrs., Inc., 32 Cal.4th 1138 (2004) … 7

    State Statutes Code of Civil Procedure § 437c(e) … 12

    Federal Cases

    Farner v. Countrywide Home Loans, Case No. 08-CV-2193 BTM, 2009 WL 189025 at *2 (S.D. Cal. Jan. 26, 2009) … 16

    Rangel v. DHI Mortg. Co., Ltd., Case No. CV F 09-1035 UO GSA, 2009 WL 2190210 (E.D. Cal. July 21, 2009) … 16

    Sicairos v. NDEX West, LLC, Case No. 08-CV-2014-LAB 11223, 2009 WL 385855 at *7 (S.D. Cal. February 13, 2009) … 16

    *1 I. INTRODUCTION

    Plaintiffs-Appellants Robert Herrera and Gail Hen-era (collectively “Appellants”) purchased certain real property in August, 2008, subject to an existing promissory note and deed of trust. The borrower as to the existing promissory and deed of trust fell behind on her payments. Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2003-4 (“Deutsche Bank”) instituted foreclosure proceedings as a result, and the subject real property was subsequently sold at a trustee’s sale. Appellants complain that the trustee’s sale should be set aside, the trustee’s deed canceled and title quieted, because the defendants do not possess the original promissory note and deed of trust and because California Reconveyance Company (“CRC”) was not the trustee under the subject deed of trust and had no legal authority to conduct the trustee’s sale. (Deutsche Bank and CRC collectively referred to herein as “Respondents”.) However, Appellants’ claims lack legal and factual merit.

    First and foremost, the law does not require the production of the original note in order to render foreclosure proceedings valid. Moreover, as the undisputed facts show, since the loan secured by the subject real property was in default and CRC was the trustee of record, Appellants’ Complaint is meritless.

    Appellants’ mistaken assertions that Deutsche Bank had to be in possession of the original note and deed of trust to enforce its rights in the event of default, and CRC was not the trustee of record and therefore lacked authority to conduct the trustee’s sale, lack factual and legal merit. Moreover, Appellants’ claim for unjust enrichment fails, as Appellants cannot establish they are entitled to recover any amounts from Deutsche Bank or CRC.

    Agreeing with Respondents’ position, the trial court issued a tentative order granting Respondents’ Motion for Summary Judgment *2 (“Motion”). Despite their failure to submit any evidence in opposition to the Motion or to even appear to argue against the trial court’s tentative ruling on the Motion, Appellants took this appeal, arguing that the trial court erred in granting the Motion.

    Respondents’ Motion was correctly decided, however, and Plaintiffs-Appellants have failed to identify any error by the trial court or facts that would establish their claims against Respondents. Accordingly, this Court should affirm the lower court’s decision.

    Appellants’ first claim to set aside the trustee’s sale is based on their assertions that “CRC was not trustee and no longer had any authority to conduct the noticed trustee’s sale” and that the sale was “improperly held”. (Appellant’s Appendix (“AA”) 198:15-19.) Appellants also contend that “whatever promissory note that may have existed supporting the 2003 DOT is time barred by the statute and the maker, if she exists, was lulled into believing that no action would be taken to enforce the 2003 DOT because no collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.” (AA 190:20-24.)

    However, as argued by Defendants in their Motion, Appellants’ allegations are not supported by the undisputable facts. Appellants have absolutely no evidence to support their contentions that CRC was not the trustee, had no authority to conduct the trustee’s sale and the trustee’s sale was “improperly held”. Accordingly, the trial court correctly entered judgment in favor of Respondents.

    As with Appellants’ claim to set aside the trustee’s sale, Appellants’ claim to cancel the trustee’s deed was based on faulty allegations not supported in fact or law. And again, the trial court correctly granted judgment in favor of Respondents.

    Further, Appellants could not establish a basis to assert their third cause of action for quiet title against Respondents. Plaintiffs’ claim is *3 based upon their allegation that “no defendant has standing to foreclosure upon Plaintiffs’ property.” (AA 199:17-23.) However, this allegation is unsupported by fact and law.

    Similarly, Appellants could not establish that they were entitled to recover any amounts in connection with their claim for unjust enrichment. Appellants alleged that “should Defendants successfully claim any rights title or interest in the subject property, that Defendants pay to Plaintiffs all monies necessarily expended upon the property for back taxes, insurance, and deferred maintenance.” (AA 199:7-9.) However, as argued by Respondents, no cause of action for unjust enrichment can be asserted against them. The fact is that Deutsche Bank had a security interest in the subject real property which, upon Plaintiffs’ default of the subject loan, Deutsche Bank had the right to protect. (AA 45:22-56:8, 56:26-57:10.) Multiple payments on the subject loan were missed, and the subject loan went into default. (AA 56:17-19, 57:19-24.) Again, based on the evidence, the trial court correctly granted judgment in favor of Respondents.

    In opposing Respondents’ Motion, rather than actually addressing the substantive facts and legal arguments raised in the Motion, Appellants “opposed” the Motion by attempting to insert new claims into the action. Appellants failed to actually submit any evidence to controvert the facts, instead choosing to attack the credibility of the evidence submitted by Respondents as hearsay. (AA 53-80.) As the evidence submitted by Defendants was in fact not hearsay, Plaintiffs’ efforts were insufficient to create any disputed facts.

    Moreover, following the trial court’s issuance of its tentative ruling on the Motion, Appellants did not even make an appearance at the Motion hearing to contest the tentative ruling. (Respondents’ Appendix (“RA”) 109:1-2.)

    *4 Accordingly, Defendants respectfully request that this Court affirm the order and judgment of the lower court.

    II. STATEMENT OF THE CASE

    Plaintiffs-Appellants appeal from a judgment by the trial court following its order sustaining Respondents’ Motion for Summary Judgment. However, as reflected in the evidence submitted by Respondents in support of their Motion, Appellants failed to establish a single one of their four claims.

    A. Statement of Facts

    Plaintiffs-Appellants Robert Herrera and Gail Herrera purchased the real property commonly known as 739 Alameda Avenue, South Lake Tahoe, California (the “Subject Property”). (AA 56:9-16.) Prior to Plaintiffs’ purchase of the Subject Property, the Subject Property was owned by Sheryl Kotz (“Kotz”). (AA 55:22-56:8.) In April, 2003, Ms. Kotz obtained a loan (“Subject Loan”) in the amount of $340,000.00 from Long Beach Mortgage Company (“Long Beach”). (AA 55:22-56:8.) The Subject Loan was secured by a deed of trust (“Deed of Trust”) concerning the Subject Property. (AA 55:22-56:8.)

    On February 26, 2009, the Deed of Trust was assigned to Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4. (AA 55:6-18.) The assignment was made by JPMorgan Chase Bank, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company. (AA 58:6-18.) Also on February 26, 2009, CRC was substituted in as Trustee of the Deed of Trust. (AA 58:19-59:2.)

    On or about February 27, 2009, a Notice of Default concerning the Subject Loan was recorded with the El Dorado County Recorder as instrument number 2009-0008853-00. (AA 57:19-24.) The Notice of Default was mailed to Robert Herrera and Gale Herrera on March 4, 2009. (AA 57:25-58:5.) *5 The amount in arrears as of February 25, 2009, was $10,970.50. (AA 56:17-19, 57:8-24.) Then, on or about May 29, 2009, a Notice of Trustee’s Sale concerning the Subject Loan was recorded with the El Dorado County Recorder. (AA 59:3-7.) The Notice of Trustee’s Sale was mailed to Robert Herrera and Gale Herrera on May 28, 2009. (AA 59:8-15.) At time of the Notice of Trustee’s Sale, the unpaid balance on the Subject Loan and other charges was $366,913.94. (AA 59:24-27.) On or about June 25, 2009, the Subject Property was sold at a trustee’s sale. (AA 59:18-23.) On July 6, 2009, a Trustee’s Deed Upon Sale was recorded with the El Dorado County Recorder’s Office. (AA 59:18-23.)

    B. Procedural History

    Appellants filed the complaint initiating this litigation on August 3, 2009. (AA 196-200.) The complaint alleged four causes of action for “set aside trustee’s sale”, “cancel trustee’s deed”, quiet title, and unjust enrichment. (Id.)

    Respondents answered the unverified Complaint on September 9, 2009. (AA 189-195.)

    On October 2, 2009, Appellants served Demands for Inspection on CRC and (AA 183-188) and Deutsche Bank (RA pp. 15-19). Included in Appellants’ Demands for Inspection were demands that CRC and Deutsche Bank produce at the office of Appellants’ counsel located in Reno, Nevada, originals of various documents including the DOT. (Id.) Respondents objected to Appellants’ demands that they produce original documents and responded that they would make available for inspection, the original documents, at the Los Angeles office of its counsel. (AA 152-165, 166-179.)

    On or about January 7, 2010, Appellants filed a Motion to Compel the production of the original documents at their counsel’s office in Reno Nevada. (RA 1-35.) Respondents’ opposed Appellants’ Motion to Compel *6 (RA 36-104.) on the basis that Appellants were not entitled to the production of original documents and that, in any. event, Respondents had offered to make original documents available for inspection at the office of their counsel located in Los Angeles, California. (RA 37:13-15; 41:19-20.) The Court denied Appellants’ Motion to Compel.

    On March 2, 2010, Respondents filed the Motion for Summary Judgment (AA 138-151) along with a Request for Judicial Notice (AA 112-137), Declaration of Deborah Brignac In Support of the Motion (AA 84-111), and Separate Statement of Undisputed Facts (AA 52-83).

    On or about April 30, 2010, Appellants filed an opposition to the Motion for Summary Judgment (AA 32-40) along with a Motion to Strike the Declaration of Deborah Brignac (AA 48-51) and an opposition to the Request for Judicial notice (AA 41-47). In lieu of submitting any facts disputing Respondents’ Separate Statement of Undisputed Facts, Appellants submitted handwritten objections to the majority of Respondents’ facts. (AA 53-81.)

    On May 20, 2010, the trial court issued a tentative ruling on the Motion, granting the Motion in its entirety. (AA 21-22.) On May 21, 2010, counsel for Respondents appeared at the hearing on the Motion whereby the Court, noting there had been no request for oral argument, adopted its tentative ruling granting summary judgment as to the entire action. (AA 20-22.)

    In its tentative ruling, the trial court found “the Separate Statement in Opposition [to the Motion] does not present any evidence that raises a material fact” and overruled Plaintiffs’ hearsay objections. (AA 21.) The trial court also found that “all causes of action pled in the Complaint are equitable causes of action” and that Appellants had not offered to “pay the full amount of the debt for which the property is secured.” (Id.) Noting that the “complaint and answer are the “outer measures of materiality” on a *7 motion for summary judgment and the motion may not be granted or denied by issues not raised in the pleadings”, the trial court further found that Appellants for the first time in their Opposition to the Motion, were raising issues not raised in the Complaint or the Answer. (Id.)

    On June 2, 2010, the trial court entered judgment in favor of Respondents as to the entire action. (AA 6-7.) On June 15, 2010, Respondents served Appellants with a Notice of Entry of the Order. (AA 4-9.)

    C. Issue Presented for Review

    1. Whether the trial court properly granted summary judgment in favor of Respondents as to Appellants’ Complaint.

    III. STANDARD OF REVIEW

    Both the grant and denial of summary judgment are subject to de novo review to determine whether triable issues of material fact exist. See, Wiener v. Southcoast Childcare Ctrs., Inc., 32 Cal.4th 1138, 1142 (2004) (order granting summary judgment). Thus, while the appellate court must review a summary judgment ruling under the same general principles applicable at the trial level, the appellate court must independently determine the construction and effect of the facts presented to the trial judge as a matter of law. See, Saldana v. Globe-Weis Systems Co., 233 Cal.A3d 1505, 1511-1515 (1991).

    Appellate review of a summary judgment is limited to the facts shown in the supporting and opposing affidavits and those admitted and uncontested in the pleadings. The appellate court will consider only those facts that were before the trial court, and will disregard any new factual allegations on appeal. Facts not presented below cannot create a “triable issue” on appeal. See, *8 Havstad v. Fidelity Nat’l Title ns. Co., 58 Cal.App.4th 654, 661, (1997); Uriarte v. United States Pipe & Foundry Co., 51 Cal.App.4th 780, 791 (1996) — “Whether summary judgment is appropriate in light of a significant new factual development in any case is an issue that should first be presented to the trial court and not to an appellate court.”

    IV. ARGUMENT
    A. The Trial Court Properly Granted Summary Judgment as Plaintiffs Failed to Raise Any Triable Issues of Material Fact.

    Appellants set forth a host of arguments in their appeal. However, just as with their Opposition to the Motion, their arguments have nothing to do with either the actual claims asserted by Plaintiffs in their Complaint or with the substantive facts and legal arguments raised in the Motion.

    As with their Opposition, Appellants spend the majority of their time in their opening brief arguing claims they did not actually assert in their Complaint. In fact, rather than actually controverting a single fact of Respondents, Appellants again set forth claims and arguments that have nothing to do with their actual complaint. The only conclusion that can be drawn from Appellants’ blatant disregard for their own pleadings is that Appellants did so, in an effort, albeit however weak, to distract, first the trial court and now the appellate court, from the fundamental fact that Appellants have no evidence to support their actual claims.

    B. Appellants Impermissibly Attempted to Insert New Claims into the Action.

    As with their Opposition to the Motion, Appellants continue in their Appeal to not actually address any of the legal arguments raised in the Motion as to why Appellants could not prove their claims. Rather, *9 Appellants’ Opposition and Appeal consists of entirely new claims, none of which were asserted in their Complaint.

    For example, in their Opposition, Appellants argued the following: “The Substitution of trustee fails to meet the requirements of Civil Code § 2937 which requires NOTICE of any change in the serving agent to be given to the borrower,” and “[t]he transfers of trustee without notice violates 15 U.S.C. § 1641, et sec.” (AA 35:21.) Plaintiffs also asserted in their Opposition and for the first time in this action, that the Notice of Default “fails to meet the requirements of California law” in violation of Civil Code § 2923. (AA 36:9-25.) Plaintiffs’ next argument was that the Notice of Sale “fails to meet the requirement of California law” in violation of Civil Code § 2924(f). (AA 37:20-26.)

    None of these so-called violations had ever been asserted in this action prior to Appellants’ Opposition. Appellants alleged claims for “set aside sale”, “cancel trustee’s deed”, quiet title and unjust enrichment in their complaint, yet none of these claims are premised on the types of alleged violations asserted in Appellants’ Opposition. The crux of Appellants’ actual causes of action was that Defendants did not possess the original promissory note and trustee’s deed and CRC was not the trustee and therefore had no legal authority to conduct the subject trustee’s sale. (AA 196-200.) Nowhere in their complaint did Appellants raise the types of allegations they asserted in their Opposition and continue to assert in their appellate brief.

    As for Appellants’ argument that Respondents “lack standing” to foreclose on the subject Property because they have not produced even a copy of the Note, this is not what Appellants alleged in their complaint. They alleged in their complaint that the Trustee’s Deed should be canceled *10 because they believe the original promissory note no longer exists and therefore Defendants “lack standing” because they are not in possession of the original Note. (AA 196-200.) Appellants entirely ignored Respondents’ legal argument that no party needs to physically possess the promissory note. (AA 145-146.) Further, having lost their Motion to Compel Production of the original documents at issue, Appellants refused, and continue to refuse, to even acknowledge that Respondents actually offered to make available for inspection to Appellants at Respondents’ place of business, the original documents, including the promissory note. That Appellants chose not to take advantage of Respondents’ offer is through no fault of Respondents.

    To create a triable issue of material fact, the opposition evidence must be directed to issues raised in the pleadings. See Robinson v. Hewlett-Packard Corp., 183 Cal.App.3d 1108, 1131-1132 (1986) (issues outside the pleadings cannot be considered in opposition to the summary judgment motion); see also, Western Life Inso. Co,, 8 Cal.App. 4th 633, 639 (1992).

    Aside from the fact that Appellants did not actually present any evidence whatsoever in opposition to Respondents’ Motion, the trial court properly disregarded the entirety of Appellants’ Opposition as asserting claims outside the pleadings.

    Appellants failed and continue to fail to address any of the arguments set forth in Respondents’ Motion and thus have failed to establish any triable issues of material fact.

    C. Plaintiffs Failed to Submit Any Evidence Controverting the Facts.

    In addition to their failure to actually address the legal arguments raised in Respondents’ Motion and as further evidence of the weakness of *11 their claims, Appellants also fail to offer any evidence whatsoever in opposition to the Motion.

    In fact, in response to Respondents’ Separate Statement of Undisputed Material Facts (“Statement of Facts”), Appellants did no more than provide handwritten statements such as “Disputed, Hearsay” and “Disputed, Irrelevant as statute requires certified mail/registered.”[FN1] See, Plaintiffs’ Response to Statement of Facts.[FN2] (AA 53-80.) Appellants failed to controvert one single fact in response to the evidence submitted by Respondents instead relying almost entirely on an ill-founded attack on the Declaration of Deborah Brignac and documents attached as exhibits thereto.[FN3]

    FN1. As an example of the complete lack of foundation for Appellants’ attacks on Respondents’ Evidence, Appellants objected to Fact Nos. 9, 10, 14, 15 on the basis that such facts were “irrelevant as statute requires certified mail/registered.” (AA 57, 58, 59.) As Exhibits 3 (AA 100) and 7 (AA 107) to Deborah Brignac’s Declaration clearly demonstrated, the documents in question were indeed sent to Appellants via certified mail. It is completely disingenuous of Appellants to suggest otherwise. (AA 84-87, 100, 107.)

    FN2. Pursuant to California Rules of Court, Rule 3.1354.(b), an Opposition to Statement of Facts which includes objections to the evidence, should state the objection by referring to the objection number of separately filed objections. That Appellants’ Opposition, made up almost entirely of handwritten one and two word objections to evidence, did not include such references should come as no surprise given that Appellants failed altogether to file separate evidentiary objections.

    FN3. Rather than submitting a separate document setting forth their objections to Respondents’ Evidence, Appellants took the curious route of submitting a Motion to Strike the Declaration of Deborah Brignac. Such a motion is neither contemplated nor authorized in connection with a summary judgment motion.

    First and foremost, this approach by Appellants was insufficient to create any triable issues of material fact. In opposing a motion for summary judgment, the opposing party must do more than attack the credibility of the moving party’s evidence, they must controvert the facts *12 proved by the moving party. Code of Civil Procedure § 437c(e); Durbin v. Fletcher, 165 Cal.App.3d 334 (1985) (in light of subd. (e) of this section under which summary judgment is not to be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of summary judgment, summary judgment was properly granted to defendants in view of fact that facts recited were not contradicted by plaintiff); Trujillo v. First American Registry, 157 Cal.App.4th 628, 636 (2007).

    In opposing Respondents’ Motion, Appellants did no more than attack the credibility of Respondents’ witness and documents, while offering no evidence of their own whatsoever. On this basis alone, the trial court has sufficient grounds to grant the Motion. When no facts are filed in opposition to motion for summary judgment, the trial court is entitled to accept as true the facts alleged in movant’s affidavits if such facts are within affiant’s personal knowledge and are ones to which he could competently testify. Truslow v. Woodruff, 252 Cal.App. 2d 158 (1967). This is precisely the case here – Appellants failed to file any facts in opposition to the Motion, but rather, resorted to attacking as hearsay evidence which as set forth is obviously credible and admissible.

    Appellants’ arguments of hearsay were entirely unfounded as Ms. Brignac’s Declaration is specifically based on her personal knowledge. In fact, based on her personal knowledge as one of the custodians of record for the Subject Loan, Ms. Brignac attested to the validity of the documents attached as exhibits to her declaration and the facts contained therein – documents which she declared under penalty of perjury were true and correct copies. As such, Respondents unequivocally demonstrated Ms. Brignac’s competency to testify as to the facts contained in the documents *13 attached to her Declaration. See Dillon v. Sumner, 153 Cal.App.2d 638 (1957) (affidavit which recited that facts stated were within personal knowledge of affiant and affiant would testify as witness sufficiently showed that affiant could testify competently as to facts recited therein). Ms. Brignac set forth a clear foundation for both the information contained in her declaration, as well as the documents attached as exhibits thereto. Ms. Brignac’s declaration and the Exhibits thereto are not hearsay by any stretch of the imagination and, as such, in light of Appellants’ failure to submit any evidence disputing the facts, the Court can and should accept as true the facts attested to by Ms. Brignac. See, In re Kerner’s Estate, 275 Cal.App.2d 785 (1969) (in summary judgment proceeding in absence of counter-declarations or affidavits, trial court was entitled to accept as true facts within personal knowledge of declarants and to which they could competently testify).

    Further, contrary to Appellants’ suggestions, Respondents did not ask the trial court to grant their Motion on the basis of recorded documents alone, but rather, on the basis of documents that had been authenticated by an individual competent to so testify. As such, Appellants’ objections to Defendants’ evidence were entirely unfounded.

    Appellants apparently had no evidence to dispute Respondents’ Statement of Facts as they presented none. Appellants instead resorted to attacking the credibility of Respondents’ witness, a witness who was clearly competent to testify as to the contents of the documents in question.

    Accordingly, as Appellants provided no evidence to contravene that submitted by Respondents, and Appellants’ efforts to attack the credibility, of Respondents’ evidence failed, Respondents were entitled to summary judgment on each and every one of Appellants’ claims.

    *14 D. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Set Aside Trustee’s Sale Because There Were No Triable Issues of Fact.

    Appellants’ claim to set aside the trustee’s sale is based on their assertions that “CRC was not trustee and no longer had any authority to conduct the noticed trustee’s sale” and that the sale was “improperly held”. (AA 198:15-19.) Appellants also contend that “whatever promissory note that may have existed supporting the 2003 DOT is time barred by the statute and the maker, if she exists, was lulled into believing that no action would be taken to enforce the 2003 DOT because no collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.” (AA 198:20-24.)

    However, Appellants’ allegations are not supported by the undisputable facts.

    First, pursuant to the Deed of Trust, as the beneficiary under the Deed of Trust, Deutsche Bank had every right to name a substitute trustee, which Deutsche Bank did on February 26, 2009, when it named CRC as the trustee of the Deed of Trust. (AA 55:22-56:8, 57:11-18.) CRC thereafter noticed the Trustee’s Sale on May 29, 2009, and conducted the Trustee’s Sale on June 25, 2009. (AA 59:3-7, 18-23.) These facts are simply indisputable. Accordingly, Appellants have absolutely no evidence to support their contentions that CRC was not the trustee, had no authority to conduct the trustee’s sale and the trustee’s sale was “improperly held”.

    Moreover, Appellants’ allegations, that the promissory note is time-barred and that no actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded, are again disproved by the actual facts. First, pursuant to the Deed of Trust, upon default, as the *15 beneficiary under the Deed of Trust, Deutsche Bank had the right to invoke the power of sale. (AA 56:26-57:10.) The Notice of Default was recorded on February 27, 2009. (AA 57:19-24.) Contrary to Appellants’ allegations, Respondents’ actions in enforcing the rights of the beneficiary under the Deed of Trust were not “time barred” by some unnamed statute of limitations.

    As for Appellants’ claim that no deficiency notices were sent or recorded, again this allegation is contrary to the actual facts. The Notice of Default was recorded on February 27, 2009. (AA 57:19-24.) And a copy of the Notice of Default was mailed to both Robert Herrera and Gale Herrera on March 4, 2009. (AA 57:25-58:5.) There are simply no facts to support Appellants’ allegations and, as such, Appellants cannot prove their claim and Respondents were entitled to summary judgment.

    E. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Cancel Trustee’s Deed Because There Were No Triable Issues of Fact.

    As with Appellants’ claim to set aside the trustee’s sale, Appellants’ claim to cancel the trustee’s deed is based on faulty allegations unsupported in fact or law, The premise of Appellants’ claim is that the “original promissory note(s) no longer exist, if ever they did exist” and “Defendant’s deed is invalid as it is based solely upon purported copies which have no force or effect.” (AA 199:7-9.)

    Appellants’ assertion that Deutsche Bank improperly pursued nonjudicial foreclosure, because it could not produce the original promissory note, fails as a matter of law. Such is a standard argument proffered by plaintiffs facing foreclosure or challenging foreclosure proceedings. Courts, however, have dismissed this argument as not having a basis in law. See, e.g., *16 Farner v. Countrywide Home Loans, Case No. 08-CV-2193 BTM, 2009 WL 189025 at *2 (S.D. Cal. Jan. 26, 2009) (“there does not appear to be any requirement under California law that the original note be produced in order to render the foreclosure proceedings valid”); see also Sicairos v. NDEX West, LLC, Case No. 08-CV-2014-LAB 11223, 2009 WL 385855 at *7 (S.D. Cal. February 13, 2009) (“no party needs to physically possess the promissory note”); Rangel v. DHI Mortg. Co., Ltd., Case No. CV F 09-1035 LJO GSA, 2009 WL 2190210 (E.D. Cal. July 21, 2009).

    Case law is clear. A party need not possess the promissory note to proceed with a foreclosure. In this instance, the Subject Loan was in default, Respondents noticed the default, noticed the subject trustee’s sale and sold the Subject Property at a trustee’s sale. (AA 57:19-24, 59:3-7, 18-23.) It is immaterial whether or not Deutsche Bank was in possession of the original promissory note and/or Deed of Trust. This lack of possession does not in any way diminish their rights, as the beneficiary under the Deed of Trust, to enforce their interest in event of default.

    Accordingly, Appellants’ claim to cancel the trustee’s deed is without merit, and Respondents are entitled to summary judgment.

    F. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim to Quiet Title Because There Were No Triable Issues of Fact.

    Section 761.020 of the Code of Civil Procedure sets forth the five elements which a Complaint must allege in order to sustain a cause of action to quiet title: (1) a legal description of real property and its street address, (2) plaintiffs title as to which a determination is sought and the basis of the title, (3) the adverse claims to the title, (4) the date as of which the determination is sought, and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. Code of Civ. Proc. §761.020.

    *17 1. Appellants Cannot Establish Any Facts Affecting the Validity of the Trustee’s Deed Upon Sale to Warrant the Remedy of Quiet Title

    Appellants cannot establish a basis to assert a quiet title action against Respondents. Appellants’ claim is based upon their allegation that “no defendant has standing to foreclosure upon Plaintiffs’ property.” (AA 199:17-23.) As set forth above, this allegation is unsupported by fact and law. In fact, as established above, Deutsche Bank, as the beneficiary under the Deed of Trust, had every right to enforce its security interest in the Subject Property once the Subject Loan went into default and there was no subsequent cure of the default. (AA 55:22-56:8, 56:26-57:10.) Further, CRC as the trustee under the Deed of Trust, had the authority to both notice and conduct the trustee’s sale at the direction of the beneficiary. (AA 57:11-18.)

    Appellants’ claim to quiet title is without merit, because Appellants cannot establish any facts which affect the validity of the Trustee’s Deed Upon Sale. See, Moss Estate Co. v. Adler, 41 Cal.2d 581 (1953); Kroeker v. Hulbert, 38 Cal.2d 261 (1940) (“In actions to cancel a certain instrument it is … essential to allege the facts affecting the validity and invalidity of the instrument which is attacked”); Sly v. Abbott, 89 Cal.App. 209, 216 (1928) ( “[I]t is well settled that one who relies upon estoppel or other facts of equitable cognizance as a basis for a decree quieting title must allege such facts in his pleading”). Accordingly, the quiet title claim cannot be maintained against Respondents.

    *18 2. Plaintiffs Cannot Establish That They Can Tender the Amounts Owing Under the Subject DOT to Quiet Title

    Under California law, a plaintiff seeking to quiet title must allege tender or an offer of tender of the amount borrowed. See, Arnolds Management Corp. v. Eischen, 158 Cal.App.3d 575, 578 (1984); see also, Dool v. The First National Bank of Calexico, 207 Cal. 347, 351-352 (1929) (affirming decision of court to require reimbursement of monies advanced by bank to deceased, incompetent mortgagor under a deed of trust in an action to quiet title); O’Brien v. O’Brien, 197 Cal. 577, 585 (1925) (finding that, in an action to quiet title, a mortgagor may be required to reimburse the mortgagee for the unpaid debt based upon a purportedly invalid mortgage). In this case, Plaintiffs cannot produce admissible evidence raising a triable issue of material fact as to the quiet title claim. Here, there is no allegation in the Complaint that Appellants could tender the amounts owing under the DOT to Deutsche Bank. (AA 196-200.) Moreover, Appellants have not offered to tender the entire amount of indebtedness to Deutsche Bank. (AA 60:2-6.) Because the Appellants did not and cannot tender the indebtedness to Deutsche Bank, Appellants cannot obtain equitable relief, and the quiet title action is subject to summary adjudication.

    G. The Trial Court Properly Granted Summary Judgment as to Plaintiffs’ Claim for Uniust Enrichment Because Appellants Could Not Establish They Were Entitled to Recovery Any Amounts from Respondents.

    Similarly, Appellants cannot establish that they are entitled to recover any amounts in connection with their claim for unjust enrichment. Plaintiffs allege that “should Defendants successfully claim any rights title or interest in *19 the subject property, that Defendants pay to Plaintiffs all monies necessarily expended upon the property for back taxes, insurance, and deferred maintenance.” (AA 200:7-9.)

    The elements of an unjust enrichment claim are the “receipt of a benefit and [the] unjust retention of the benefit at the expense of another.” Lectrodryer v. SeoulBank, 77 Cal.App.4th 723, 726 (2000). An action for unjust enrichment is based on the principal that, “a person who has been unjustly enriched at the expense of another is required to make restitution to the other.” (Emphasis added.) First Nationwide Savings v. Perry, 11 Cal.App.4th 1657, 1662 (1992) (citations omitted). However, “the fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it.” (Citations omitted). Id. at 1663.

    Here, no cause of action for unjust enrichment can be asserted against Respondents. The fact is that Deutsche Bank had a security interest in the Subject Property which, upon default of the Subject Loan, Deutsche Bank had the right to protect. (AA 55:22-56:8, 56:26-57:10.) Multiple payments on the Subject Loan were missed, and the Subject Loan went into default. (AA 56:17-19, 57:19-24.) It is inconceivable that either Deutsche Bank or CRC unjustly received any “benefit” from Appellants, when Appellants failed to pay the entire amount of indebtedness owing under the DOT.

    Accordingly, Respondents are entitled to summary judgment.

    *20 V. CONCLUSION

    DPlaintiffs-Appellants’ claims are simply not supported by the facts. For all of the foregoing reasons, Respondents respectfully request that this Court affirm the sound ruling of the lower court.

    Robert HERRERA and Gail Herrera, Plaintiffs and Appellants, v. DEUTSCH SIC¨ BANK NATIONAL TRUST COMPANY, as Trustee for Long Beach Mortgage Loan Trust 2003-4 and California Reconveyance Company, Defendants and Respondents.
    2010 WL 5275172 (Cal.App. 3 Dist.) (Appellate Brief)

  5. Aron,

    Carie cannot explain that, because if you read the case, the homeowner did not make any payments to the first mortgage. The homeowner made a mistake in not doing his own due diligence buying a property at foreclosure, and not ensuring that all liens had been accounted for.

    Carie did not read the complaint carefully, instead she made assumptions that did not have any basis in fact.

  6. Dear Carie, on July 3 you commented the following:
    “They tried for “unjust enrichment”, but didn’t properly plead…what should they have said in their pleadings to to show that they deserved every single dime back that they had paid into the “servicing company” from the date a securitized audit shows the “loan” had been assigned to the REMIC trust and according to the PSA???
    Can you please explain why, or on what basis this would be don?

  7. Can someone please get a telepathic message to Bobby Finlay that The BullSh*T Judicial notice they requested was a complete waste of time.

    Neo

  8. Hip-Hip-Herrera!

  9. Carie,

    You meed to read the case “carefully”, and just not make assumptions.

    Herrera purchases the property at a Foreclosure Sale, in Jun 08. So, the previous owners had been foreclosed upon. It does not who the foreclosing party was, but based upon information at hand, a second mortgage was the initiating party.

    Herrera purchased the property, without doing enough due diligence. He bought the property, not adequately researching to determine the presence of a first and second mortgage. He thought the second was the first mortgage. (This could also mean that the title company has some liability in this case.)

    Herrera made no payments one the first mortgage, and it is unknown whether he took out a loan on the second mortgage. However, he would have been obligated to make payments on the first mortgage, if the second mortgage was the foreclosing entity. As a result, Herrera would have made no payments to the first mortgage. In fact, he paid back taxes, insured the property, and did upgrade maintenance.

    If there was an outstanding 1st mortgage lien, and there is not enough evidence to determine accurately if this is so, then no payments made on the loan would support foreclosure actions.

    Now, does this mean that Deutsche Bank had followed the correct foreclosure process? It appears to not be likely, but evidence of all the documents would need to be properly examined and verified.

    Did Brignac screw up? Absolutely so, but such screw ups with her, especially who signs her documents, is quite common.

    Does it mean that the loan documents cannot be “corrected” so that Deutsche Bank can foreclose? Under CA law, it is likely that a competent person could clean up the documents and allow Deutsche Bank to foreclose.

    The real screw up is the Herrera did not due proper due diligence when he bought the property. If so, he would have found the presence of the first mortgage. Then, he would have known not to bid on the property. Unfortunately, this is more common than one would think in CA foreclosures

  10. I read the revised order but do not understand what partial publication means. Does this mean a part of the decision is published and now case law? Which part?

  11. They should have pled that the bank, not being the assignee, was not entitled to the mortgage payments. But they still would not have won because they wanted to get back the money they paid to maintain the property, rather than the mortgage payments.

  12. They tried for “unjust enrichment”, but didn’t properly plead…what should they have said in their pleadings to to show that they deserved every single dime back that they had paid into the “servicing company” from the date a securitized audit shows the “loan” had been assigned to the REMIC trust and according to the PSA???

  13. […] Livinglies’s Weblog Filed Under: Foreclosure News Tagged With: crisis, foreclosure, housing, News, real […]

Leave a Reply

%d bloggers like this: