Ansanelli v. JPMorgan Chase, 2011 WL 1134451, Case No. CV10-03892 (WHA)

William Alsup, District Judge, U.S. District Court, Northern District of California
Cotchett Pitre & McCarthy, Burlingame, CA, attorneys for Angela Ansanelli

Chase took over servicing two Ansanelli loans after it purchased WaMu's assets. Plaintiffs tried to negotiate a loan modification and landed in loan mod hell. Chase moved to dismiss the SAC, and plaintiff's lawyers prevailed on almost every count. The court refused to dismiss causes of action for breach of contract, fraud and deceit, negligent misrepresentation, RESPA, and unfair business practices (Cal. B&P Code sec. 17200).

Additional motions were filed, plaintiffs filed a Fourth Amended Complaint on May 12, 2011, and defendants filed an Answer. At a mediation session on June 22, 2011, the case was settled.

• Second Amended Complaint 2/3/2011
• Order Denying Motion to Dismiss 3/28/2011
• Fourth Amended Complaint 5/12/2011

Bakenie v. JPMorgan Chase, Case No. SACV12-0060 JVS

U.S. District Court, Central District of California (Santa Ana)
Joseph Arthur Roberts, Newport Beach, CA, attorney for Ernest Bakenie

Plaintiff alleges that Chase is engaged in the business practice of deceiving bankruptcy judges, creditors, debtors, and attorneys as to Chase's status as a secured creditor in thousands of bankruptcy cases filed nationwide.

Through fabricated assignments, endorsements and affidavits that purport to transfer Deeds of Trust, notes and the rights to money due under thousands of non-negotiable promissory notes, Chase is playing "hide-and-seek" with debtors and judges.

The 171-paragraph complaint seeks an order vacating all Bankruptcy orders, claims and awards granted based on Chase's misrepresentations and deceptive business practices.

• Class Action Complaint filed 1/13/2012

Balderas v. Countrywide, Case No. 10-55064
Opinion by Alex Kozinski, Chief Judge, Ninth Circuit Court of Appeals
Kevin Griffin, Griffin Johnson LLP, Dana Point, CA, attorney for Victor Balderas

Plaintiffs alleged that Countrywide gave them defective copies of the TILA Notice of Right to Cancel, which remained at the bank rather than were given to Plaintiffs. Therefore they were entitled to rescind within three years, rather than three days of signing the papers.

Chief Judge Kozinski's opinion begins, "The Balderases allege that they are immigrants who were rooked by a bank that signed them up for loans it knew they couldn't afford, on terms they didn't agree to."

The opinion continues:

Webster's New International Dictionary defines "deliver" as "to give or transfer" and "to yield possession or control of." Webster's New International Dictionary 693 (2d ed. 1939). We interpret "deliver" to mean that the consumer must be allowed to keep the notice. When you have pizza delivered, you don't sign for it and let the deliveryman take it back to the restaurant. And when a newspaper boy delivers a paper, he doesn't show you the headlines and then return it to the printer.

Countrywide claims that the Balderases didn't allege enough facts to rebut the signed notice's presumption of delivery. But presumptions are not rebutted by allegations; they are rebutted by evidence. And the time for presenting evidence has not yet arrived. Complaints need only allege facts with sufficient specificity to notify defendants of plaintiffs' claims. Here, the Balderases pleaded that the notice they were given was defective...

As we've said before, "so long as the plaintiff alleges facts to support a theory that is not facially implausible, the court's skepticism is best reserved for later stages of the proceedings when the plaintiff's case can be rejected on evidentiary grounds." In re Gilead Sciences Securities Litigation, 536 F.3d 1049, 1057 (9th Cir. 2008). Here, the Balderases clearly alleged in their complaint that they were never given a Notice of Right to Cancel that complied with TILA. If they can prove up this allegation at trial, they'll win. A complaint containing allegations that, if proven, present a winning case is not subject to dismissal under 12(b)(6), no matter how unlikely such winning outcome may appear to the district court.

• Opinion 12/29/2011

Carswell v. JPMorgan Chase, Dist. Ct. No. CV10-5152; 9th Circuit No. 11-55423

George Wu, Judge, U.S. District Court, Central District of California, Los Angeles
Douglas Gillies, attorney for Margaret Carswell

Plaintiff sued to halt a foreclosure initiated by JPMorgan Chase and California Reconveyance Co. on the grounds of failure to contract, wrongful foreclosure, unjust enrichment, RESPA and TILA violations, and fraud. She asked for quiet title and declaratory relief. Chase responded with a Motion to Dismiss. At a hearing on September 30, 2010, Judge Wu granted defendants' motion to dismiss with leave to amend. Plaintiff's First Amended Complaint was filed on October 18. It begins:

It was the biggest financial bubble in history. During the first decade of this century, banks abandoned underwriting practices and caused a frenzy of real estate speculation by issuing predatory loans that ultimately lowered property values in the United States by 30-50%. Banks reaped the harvest. Kerry Killinger, CEO of Washington Mutual, took home more than $100 million during the seven years that he steered WaMu into the ground. Banks issued millions of predatory loans knowing that the borrowers would default and lose their homes. As a direct, foreseeable, proximate result, 15 million families are now in danger of foreclosure. If the legions of dispossessed homeowners cannot present their grievances in the courts of this great nation, their only recourse will be the streets.

Chase responded with yet another Motion to Dismiss, Carswell filed her Opposition to the motion, and at hearing on January 6, 2011, Judge Wu asked Plaintiff for an Offer of Proof. Her Offer of Proof included written argument, 19 exhibits, and a powerpoint presentation. Judge Wu granted Chase's Motion to Dismiss, and Carswell appealed to the 9th Circuit (Case No. 11-55423).

After a hearing on November 7, 2012, the Ninth Circuit Court of Appeal affirmed the District Court's order of dismissal.

• Notice of Intent to Preserve Interest 1/28/2010
• First Amended Complaint 10/18/2010
• Declaration of Margaret Carswell 7/13/2010
• Transcript of Hearing 9/30/2010 re: Motion to Dismiss
• Chase's Motion to Dismiss First Amended Complaint 10/27/2010
• Chase's Request for Judicial Notice 10/27/2010
• Plaintiff's Opposition to Motion to Dismiss 12/03/2010
• Plaintiff's Request for Judicial Notice 12/03/2010 - Congressional Oversight Panel's Report
• Transcript of Hearing 1/6/2011 re: Motion to Dismiss
• Judge Wu's Order Dismissing FAC 1/06/2011
• Plaintiff's Offer of Proof 1/28/2011
• Declaration of Margaret Carswell 1/28/2011
• Plaintiff's Exhibits 1-19 re: Offer of Proof
• Plaintiff's Exhibit 20 re: Offer of Proof - Powerpoint presentation
• Chase's Response to Offer of Proof 1/31/2011
• Judge Wu's Final Order of Dismissal 2/15/2011
                  - - -
  
• Appellant Margaret Carswell's Opening Brief 9/23/2011
• Appellee JPMorgan Chase's Answering Brief 10/21/2011
• Margaret Carswell's Reply Brief 11/4/2011
• Opinion of 9th Circuit Court of Appeals 11/21/2012

In re Salazar, No. 10-17456 (Bankr. S.D. Cal. Apr. 12, 2011) Chap. 13

Margaret M. Mann, U.S. Bankruptcy Judge, San Diego, CA

Francisco J. Aldana, attorney for Eleazar Salazar
600 B Street, Suite 2130, San Diego, California 92101

Cal Civil Code 2932.5 applies to Deeds of Trust as well as mortgages. It requires that if the foreclosing beneficiary has acquired its claim by assignment, it must record its assignment of the Deed of Trust before the trustee's sale.

MERS was not the beneficiary at the time of the foreclosure, even if it was initially the nominal beneficiary under the DOT. The DOT does not grant MERS any authority apart from a nominal role. MERS is not an extra-judicial commercial alternative to California's exhaustive nonjudicial foreclosure law (Civil Code sections 2020-2955). This Court joins the courts in other states that rejected MERS' offer of an alternative to the public recording system (citing In re Agard, below)

"The Court rejects the claim that MERS' limited role in the DOT provides it carte blanche authority over the nonjudicial foreclosure process."

• Salazar's Memo of Points & Authorites in Opposition to Relief from Stay
• Opinion Denying Relief from Automatic Stay 4/12/2011

In re Agard, No. 10-77338, 2011 Bankr. LEXIS 488, at *58-*59 (Bankr. E.D.N.Y. Feb. 10, 2011) Chap. 7

Robert E. Grossman, U.S. Bankruptcy Judge, Central Islip, NY

George Bassias, Astoria, NY, attorney for Ferrel Agard
21-83 Steinway, Astoria, NY 11105
gbassias@yahoo.com

The membership rules of Mortgage Electronic Registration Systems, or MERS, don't make it an agent of the banks that own the mortgages. "MERS's theory that it can act as a 'common agent' for undisclosed principals is not supported by the law," Grossman wrote. "MERS did not have authority, as 'nominee' or agent, to assign the mortgage absent a showing that it was given specific written directions by its principal."

"MERS and its partners made the decision to create and operate under a business model that was designed in large part to avoid the requirements of the traditional mortgage-recording process," Grossman wrote. "The court does not accept the argument that because MERS may be involved with 50 percent of all residential mortgages in the country, that is reason enough for this court to turn a blind eye to the fact that this process does not comply with the law."

"Without more, this court finds that MERS's 'nominee' status and the rights bestowed upon MERS within the mortgage itself, are insufficient to empower MERS to effectuate a valid assignment of mortgage," the judge wrote. "MERS's position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best."

Grossman said parties coming to him to seek to lift the automatic ban on legal claims in cases involving MERS will have to show they own both the mortgage and the note.

MERS appealed Judge Grossman's order on March 8, 2011.

• Opinion Denying Relief from Automatic Stay 2/11/2011

In re: Hwang, 396 B.R. 757 (2008), Case No. 08-15337 Chapter 7
Samuel L. Bufford, U.S. Bankruptcy Judge, Los Angeles
Robert K. Lee, attorney for Kang Jin Hwang

As the servicer on Hwang's promissory note, IndyMac was entitled to enforce the secured note under California law, but it must also satisfy the procedural requirements of federal law to obtain relief from the automatic stay in a Chapter 7 bankruptcy proceeding. These requirements include joining the owner of the note, because the owner of the note is the real party in interest under Rule 17, and it is also a required party under Rule 19. IndyMac failed to join the owner of the note, so its motion for relief from the automatic stay was denied.

Reversed on July 21, 2010. District Court Judge Philip Gutierrez reversed the Judge Bufford's determination that IndyMac is not the real party in interest under Rule 17 and that Rule 19 requires the owner of the Note to join the Motion.

• Opinion Denying Relief from Automatic Stay 10/29/2008
• District Court Reversal of Judge Bufford's Order 7/21/2010

In re: Vargas, Case No. 08-17036 Chapter 7
Samuel L. Bufford, U.S. Bankruptcy Judge, Los Angeles
Marcus Gomez, attorney for Raymond Vargas

• Motion for Stay 7/03/2008
• Order Denying MERS Relief from Stay 10/21/2009
• First Amended Adversary Complaint Case No. 09-01135-SB 1/15/2010
• Opposition to MERS Motion to Dismiss Complaint 2/24/2010

In re: Walker, Case No. 10-21656 Chapter 11
Ronald H. Sargis, Judge, U.S. Bankruptcy Court, Sacramento
Mitchell L. Abdallah, attorney for Rickie Walker

MERS assigned the Deed of Trust for Debtor's property to Citibank, which filed a secured claim. Debtor objected to the claim. Judge Sargis ruled that the promissory note and the Deed of Trust are inseparable. An assignment of the note carries the mortgage with it, while an assignment of the Deed of Trust alone is a nullity. MERS was not the owner of the note, so it could not transfer the note or the beneficial interest in the Deed of Trust. The bankruptcy court disallowed Citibank's claim because it could not establish that it was the owner of the promissory note.

• Objection to CitiBank Proof of Claim 4/06/2010
• Declaration in Support of Objection 4/06/2010
• Points & Authorities in Support of Objection 4/06/2010
• Order Disallowing CitiBank Claim 5/20/2010

Washington Mutual Inc. Bankruptcy, Case No. 08-12229 Chapter 11
Mary F. Walrath, Judge, U.S. Bankruptcy Court, Delaware

The Washington Mutual, Inc. Chapter 11 Voluntary Bankruptcy Petition was filed by WaMu on September 26, 2008 in Delaware. The filing fee was $1,039. As of the end of February 2012, 11,050 documents had been filed.

Yvanova v. New Century Mortgage Corp.
California Supreme Court, 62 Cal.4th 919 (Feb. 18, 2016)

Richard L. Antognini, Attorney for Tsvetana Vvanova

In Glaski v. Bank of America, 218 Cal.App.4th 1079 (2013), the Fifth District held that a homeowner could state a wrongful foreclosure cause of action if he could allege specific facts that showed the foreclosing entity did not have the power to foreclose under the deed of trust. It also ruled that the borrower could allege the foreclosing party lacked authority because the assignment of his deed of trust into an investment trust violated the rules that governed that trust. Published California court of appeal opinions in Yvanova v. New Century Mortgage, 226 Cal.App.4th 495 (2014), and Jenkins v. JPMorgan Chase Bank, 216 Cal.App.4th 497 (2013), were to the contrary. The court of appeal in Yvanova expressly rejected Glaski, creating a conflict in the published case law.

The issue considered by the California Supreme Court in Yvanova: In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?

This case is a watershed decision. The Court limited its scope to post-foreclosure cases. "Our ruling in this case is a narrow one. We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the challenged assignment. We do not hold or suggest that a borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit questioning the foreclosing party's right to proceed."

The Yvanova court expressly disapproved of Jenkins, Silga, Herrera, and Fontenot "to the extent they held borrowers lack standing to challenge an assignment of the deed of trust as void." Flannigan v. Onuldo, Inc. (June 8, 2016) Cal. Court of Appeal, 4th Dist., 1st Div.

The Yvanova Court concluded, "We conclude a home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legitimate authority to order a trustee's sale.

The Supreme Court then sent Keshtgar and Mendoza back to the courts of appeal for further consideration. It remains to be seen whether Yvanova will be expanded to pre-foreclosure cases, but the race is on. See Lundy v. Selene Finance (April 12, 2016) US Dist. Court, NDCA, Sciarratta v. U.S. National Bank (May 18, 2016) Cal. Court of Appeal, 4th Dist., 1st Div.

• Opinion of the California Supreme Court 2/18/2016
• Petition for Review 7/1/2014
• Answer to Petition for Review 7/22/2014
• Order - Petition Granted 8/27/2014
• Yvanova's Opening Brief 11/18/2014
• Yvanova's Reply Brief 3/19/2015
• California Attorney General Amicus Brief 4/17/2015

Mabry v. Aurora Loan Services
185 Cal.App.4th 208, 110 Cal. Rptr. 3d 201 (4th Dist. June 2, 2010)

California Court of Appeal, 4th District, Division 3

Moses S. Hall, attorney for Terry and Michael Mabry

The Mabrys sued to enjoin a trustee's sale of their home, alleging that Aurora's notice of default did not include a declaration required by Cal. Civil Code §2923.5, and that the bank did not explore alternatives to foreclosure with the borrowers. The trial court refused to stop the sale. The Mabrys filed a Petition for a Writ of Mandate and the Court of Appeal granted a stay to enjoin the sale. Oral argument was heard in Santa Ana on May 18, 2010.

Aurora argued that a borrower cannot sue a lender that fails to contact the borrower to discuss alternatives to foreclosure before filing a notice of default, as required by §2923.5, because §2923.5 does not explicitly give homeowners a "private right of action." Aurora also argued that a declaration under penalty of perjury is not required because a trustee, who ordinarily files the notice of default, could not have personal knowledge of a bank's attempts to contact the borrower. Nobody mentioned that the trustee is not authorized by the statute to make the declaration. §2923.5 states that a notice of default "shall include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower..."

The Court of Appeal ruled that a borrower has a private right of action under § 2923.5 and is not required to tender the full amount of the mortgage as a prerequisite to filing suit, since that would defeat the purpose of the statute. Under the court's narrow construction of the statute, §2923.5 merely adds a procedural step in the foreclosure process. Since the statute is not substantive, it is not preempted by federal law. The declaration specified in §2923.5 does not have to be signed under penalty of perjury. The borrower's remedy is limited to getting a postponement of a foreclosure while the lender files a new notice of default that complies with §2923.5. If the lender ignores the statute and makes no attempt to contact the borrower before selling the property, the violation does not cloud the title acquired by a third party purchaser at the foreclosure sale. Therefore §2923.5 claims must be raised in court before the sale. It is a question of fact for the trial court to determine whether the lender actually attempted to contact the borrower before filing a notice of default. If the lender takes the property at the foreclosure sale, its title is not clouded by its failure to comply with the statute. Finally, the case is not suitable for class action treatment if the lender asserts that it attempted to comply with the statute because each borrower will present "highly-individuated facts."

In a petition for review to the California Supreme Court, the Mabrys noted that more than 100 federal district court opinions have considered §2923.5 and an overwhelming majority have rejected a private right of action under the statute. The petition for review was denied.

After the case was remanded to the trial court, Mabry's motion for preliminary injunction was granted. The trial court found that the Notice of Default contained the form language required by the statute, i.e. that the lender contacted the borrower, tried with due diligence to contact the borrower, etc. However, the declaration on the Notice of Default was not made under penalty of perjury, and therefore had no evidentiary value to show whether the defendant satisfied §2923.5

• Court of Appeal's Stay of Foreclosure Sale 11/25/09
• Opinion of Court of Appeal, Fourth District 6/2/10
• Petition for review, California Supreme Court 7/13/10. Denied 8/18/2010.
• Order Granting Preliminary Injunction Orange County Superior Court 12/17/10.

Lange v. JP Morgan Chase, Washington Mutual, Alta Community Investment, and Seaside Capital Fund
California Court of Appeal, 2nd District   Case #B233670
Roger Senders, trial attorney
Douglas Gillies, appellate attorney for Susan Lange

Susan Lange was paying Chase $6384 per month to stay in her home under a trial loan modification agreement when she came home to find a Notice to Quit posted on her front door. Without giving notice to Susan, Chase had conducted a Trustee's Sale. The property was purchased by Alta Community Investment, founded by Todd Kaufman, and Seaside Capital Fund, owned by Luke McCarthy. However, Todd Kaufman was not your typical bona fide purchaser of distressed properties. He had designed and managed WaMu's securitization division. He left WaMu during the mortgage meltdown and founded Alta Community Investment so he could buy and sell distressed houses.

Two days later, Lange received a knock on the door from Nancy Mura, who was sent to Lange's home to persuade the residents to move immediately. Mura told Lange that if she didn't get out right away, Luke McCarthy would pay her a visit and he would be "very unpleasant" if he had to come. "He never loses these things."

The trial court sustained demurrers filed by Chase, Alta, and Seaside. Susan Lange appealed. The California Court of Appeal affirmed, stating, "Alta and Seaside sent someone to her door asking her to vacate after the foreclosure sale, but this is not extreme and outrageous."

• Third Amended Complaint
• Susan Lange's Opening Brief - Cal. Court of Appeal 6/8/2012
• Alta's Responsive Brief 8/9/2012
• Chase's Responsive Brief 8/13/2012
• Susan Lange's Reply Brief 9/24/2012
• Opinion of Court of Appeal, Second District 2/11/2013

Herrera v. Deutsche Bank
California Court of Appeal, 196 Cal.App.4th 1366, 3rd District (May 31, 2011)

Herrera was originally an unpublished opinion, but after receiving a request from the public, the Court ordered on June 28, 2011, that the opinion would be published in part.

A trial court errs in taking judicial notice of disputed facts contained within recorded documents.

A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. "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. 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. "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, fn. 9.

In Herrera, the Substitution of Trustee recited that Deutsche Bank "is the present beneficiary under" the 2003 deed of trust. This fact was hearsay and disputed. Therefore, the trial court could not take judicial notice of it. Poseidon Development, Inc. v. Woodland Lane Estates, (2007) 152 Cal.App.4th 1106. Nor would taking judicial notice of the Assignment of Deed of Trust establish that the Deutsche Bank was the beneficiary under the deed of trust. A recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay. Plaintiffs disputed the truthfulness of the contents of all of the recorded documents.

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). Deborah Brignac's declaration did not affirmatively show that she can competently testify that the bank is the beneficiary under the deed of trust. At most, her declaration shows she can testify as to what the Assignment of Deed of Trust "indicates." The factual contents of the assignment were hearsay and defendants offered no exception to the hearsay rule to make these factual matters admissible.

At oral argument, defendants contended that the recorded documents were actually business records and admissible under the business record exception. However, Brignac did not provide any information in her declaration establishing that the sources of the information and the manner and time of preparation would indicate trustworthiness. (Evid. Code, § 1271 (d).

A declaration that the Substitution of Trustee by Deutsch 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. 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.

• Herrera Opinion of Court of Appeal, Third District 5/31/2011

Gillies v. California Reconveyance Co. and JPMorgan Chase (Gillies 1)
California Court of Appeal, Case # B224995, 2nd District, Division 6

Douglas Gillies, Appellant in pro per

Gillies sued on November 25, 2009, to enjoin a trustee's sale, alleging that CRC's Notice of Default (NOD) did not include a declaration required by Cal. Civil Code §2923.5, the NOD mailed to the homeowner was not a copy of the recorded NOD, and the Notice of Default was not recorded in the County Recorder's Office. Defendants filed a Demurrer and attached a recorded NOD in which the name of the trustor was misspelled. The trial court sustained the demurrer without leave to amend and the case was dismissed. Gillies appealed.

The Court of Appeal affirmed the trial court's demurrer, and wrote, "Gillies points out that the notice of default misspells his first name Dougles, instead of the correct Douglas. But no reasonable person would be confused by such a minor error. Gillies last name is spelled correctly and the notice contains the street address of the property as well as the assessor's parcel number."

• Appellant's Opening Brief
• Response Brief filed by Chase Bank and California Reconveyance
• Appellant's Reply Brief
• Decision of Court of Appeal
• Appellant's Petition for Rehearing - filed April 21; denied April 23, 2011

Gillies filed a second lawsuit against CRC on July 13, 2011 (Gillies 2).

Gillies v. California Reconveyance Co. (Gillies II)
California Court of Appeal, Case # B237562, 2nd District, Division 6

Douglas Gillies, Plaintiff in pro per

Gillies sued CRC a second time to enjoin a trustee's sale, alleging that the Deed of Trust did not correctly state the name of trustor, as required by Cal. Civil Code §2924, and that CRC did not attempt to contact the borrower to explore alternatives to foreclosure before filing the Notice of Default. The court granted a Temporary Restraining Order to stop the sale but declined to issue a preliminary injunction.

CRC filed a Motion to Strike the Complaint on the grounds of res judicata and collateral estoppel. Gillies opposed the motion arguing that res judicata does not apply because the Complaint alleges new facts and new theories and the earlier dismissal following a demurrer was not a judgment on the merits. When Judge de Bellefeuille dismissed the complaint in Gillies II, she suggested that it should be resolved by the court of appeal.

Plaintiff filed an appeal on November 16, 2011, Case # B237562. The Second Appellate District, Div. 6, ruled in an unpublished opinion that the action was barred by the doctrine res judicata.

• Complaint and Application for TRO
• CRC's Motion to Strike
• Plaintiff's Opposition to Motion to Strike
• CRC's Reply
• Order Striking Complaint and Judgment of Dismissal
• Gillies' Opening Brief in the Cal. Court of Appeal, May 4, 2012, No. B237562
• CRC's Respondent's Brief Brief
• Gillies' Reply Brief
• Decision of Court of Appeal, September 6, 2012
• Petition for Review - California Supreme Court, October 16, 2012, No. S206021
• CRC's Answering Brief - California Supreme Court, November 10, 2012
• Gillies' Reply Brief - California Supreme Court, November 13, 2012

Gillies filed a third lawsuit against Chase in Federal District Court on December 5, 2012 (Gillies 3) alleging that Chase could not identify the Lender and was therefore not authorized to commence foreclosure. Chase's wholly owned subsidiary, CRC, had recorded a Deed of Trust that did not correctly state the name of trustor, followed by a Notice of Default and three Notices of Trustee's Sale. A spelling discrepancy is a clerical error. CRC's remedy could be found in the Adjustable Rate Note, which states in Paragraph 12 that in the event of a clerical error, "I agree, upon notice from the Note Holder, to reexecute any Loan Documents that are necessary to correct any such Errors." The Note Holder can request that the Trustor amend the Deed of Trust to correct a clerical error. Chase and CRC did not follow this simple remedy because they cannot identify or located the Note Holder.

Cabalu v. Mission Bishop Real Estate

Superior Court of California, Alameda County
Brian A. Angelini, attorney for Cecil and Natividad Cabalu

• Complaint to Set Aside Trustee's Sale -filed August 2009

Davies v. NDEX West, Case No. INC 090697

Randall White, Judge, Superior Court of California, Riverside County
Brian W. Davies, in pro per

• Complaint for Fraud dated 4/08/2010

Edstrom v. NDEX West, Wells Fargo Bank , Case No. 20100314
Superior Court of California, Eldorado County
Richard Hall, attorney for Daniel and Teri Anne Edstrom

A 61-page complaint with 29 causes of action to enjoin a trustee's sale of plaintiffs' residence, requesting a judicial sale instead of a non-judicial sale, declaratory relief, compensatory damages including emotional and mental distress, punitive damages, attorneys' fees, and rescission.

• Complaint to Stay Foreclosure 5/24/2010
• Order to Show Cause 5/25/2010

Moreno v. Ameriquest

Superior Court of California, Contra Costa County
Thomas Spielbauer, attorney for Gloria and Carlos Moreno

Complaint for declaratory relief and fraud against lender for misrepresenting the terms of the loan, promising fixed rate with one small step after two years both orally and in the Truth In Lending Statement. Loan was actually variable rate with negative amortization. Morenos would have qualified for fixed rate 5% for 30 years, but instead received an exploding 7% ARM. Notary rushed plaintiffs through signing of documents with little explanation. Complaint requests a declaration the note is invalid, unconscionable and unenforceable and the Notice of Trustees Sale is invalid.

• Complaint for Fraud dated January 2008

Niday v. GMAC, Case No. CV10020001
Oregon Court of Appeals
July 18, 2012
Jeff Barnes, attorney for Rebecca Niday

In sum, we conclude that the "beneficiary" of a trust deed for purposes of the OTDA is the person named or otherwise designated in the trust deed as the person to whom the secured obligation is owed--in this case, the original lender. We further conclude that, because there is evidence that the beneficiary assigned its interest in the trust deed without recording that assignment, there is a genuine issue of material fact on this summary judgment record as to whether ORS 86.735(1), a predicate to nonjudicial foreclosure, has been satisfied. We emphasize, however, that our holding concerns only the requirements for nonjudicial foreclosure. Cf. ORS 86.710 (beneficiary of the trust deed retains the option of judicial foreclosure). And the import of our holding is this: A beneficiary that uses MERS to avoid publicly recording assignments of a trust deed cannot avail itself of a nonjudicial foreclosure process that requires that very thing--publicly recorded assignments.

• Opinion decided 7/18/2012 that if evidence indicates the beneficiary assigned its interest through MERS without recording the transfer, nonjudicial foreclosure is not available.