PERRY v.

JPMorgan Chase et al

Case # MSC10-02914

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Leighton Lee Perry 6724 Waverly Road Martinez, Ca 94553 Phone (925) 949-8377 Email: LL_Perry@att.net

Plaintiff Pro Se

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF CONTRA COSTA

LEIGHTON LEE PERRY, Plaintiff, vs.

JP MORGAN CHASE BANK N.A.; CHASE HOME FINANCE LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION; QUALITY LOAN SERVICE CORP.; and all persons unknown, claiming any legal or equitable right, title estate, lien or interest in the property described in this Complaint adverse to Plaintiffs title thereto and as DOES 1100, Inclusive,

Case No. MSC10-02914 OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS QUALITY LOAN SERVICE CORPORATION TO FIRST AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES Judge: Hon. Laurel S. Brady Dept: 31 Date: May 23, 2013 9:00 a.m.

Defendant.
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OPPOSITION TO MOTION FOR SUMMARY JUDGMENT Plaintiff Leighton Lee Perry submits the following Opposition to Motion for Summary Judgment to Plaintiffs First Amended Complaint by Defendant Quality Loan Service Corporation (QLS). This Opposition is based on this Opposition and accompanying Memorandum of Points and Authorities; Plaintiffs Separate Statement of Material Facts; Plaintiffs Declaration in Support of Opposition to Motion for Summary Judgment; the records on file in this action, and on such evidence as may be presented at the hearing, including pleadings from the Motion for Summary Judgment filed by Defendants JP Morgan Chase Bank, NA (JPMorgan) and Federal National Mortgage Association (FNMA) (Declarations of David Chavez).
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MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF ARGUMENT This action started while Plaintiff explored his economic options with respect to this retirement and the equity he had in his home by way of a reverse mortgage. So he requested a confirmation of the beneficiary interest in his home from his alleged lender. That confirmation was not forthcoming, forcing Plaintiff to stop making payments in order not to affirm an illegitimate debt obligation. A notice of default was presented well before a copy of the unauthenticated promissory note was produced as a confirmation of a beneficiary interest. Defendants defense of their actions floats upon a presumed chain of beneficiary interest stemming from the non-judicial foreclosure referral they received online. That referral showed them that at the time the notice of default was recorded there was both an investor and a beneficiary. Rather than lose their bonus for a quick foreclosure, QLS ignored the corrective legal action which would have cost them their bonus and gambled on the presumption of the correctness of a Trustee Sale obliterating the sloppy paperwork resulting in yet another clouded title. In one respect they are the caboose on the end of a train their fortunes lie with the beneficiaries who select them and pay bonuses for a job quickly done, and provide indemnity to the Trustee if the process goes awry. What QLS did not anticipate is their due diligence in vetting a proposed client beneficiary being questioned, when so many foreclosed borrowers just walked away from the properties. In this case it turns out there is a real question whether the beneficiary, whichever one it was that hired them, ever had an interest in the Subject Loan and Deed of Trust. Had they questioned the double beneficiary interest with a request for a copy and / or vault location of the promissory note they could have resolved the matter in short time, and shown an unquestioned due diligence. However, the California courts are continually braying that the note isnt needed to foreclose, so why should they? Whether there is a default is only relevant to QLS if it should have been part of their due diligence or not. Whether Plaintiff believes there is an amount owing is irrelevant to QLS. If the beneficiary who hired QLS has no standing to declare a default, the only question is whether the indemnification of such beneficiary compensates for the lack of diligence shown by QLS when 2 beneficiaries showed up on their referral.
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A.

AT THE PRESENT TIME The time for QLS to question the chain of beneficiary interest passed when they accepted the

referral from the ersatz beneficiaries and compounded their collusion by participating in a shuffle of paperwork meant to confuse and lose the reader. This is obvious from a quick survey of their Statement of Undisputed Facts and questions why they never submit their facts in chronological order in any of their pleadings. It is because the order of events itself is a fact, and their constant portrayal of the facts in the wrong order is an order of perjury to the Court. The banksters have done a great job of training judges to focus on the non-judicial process where, according to Stockwells discussion of deed of trust loans, it is immaterial who holds the note. This may be true for the window of time a non-judicial foreclosure is under the helm of the foreclosing trustee but then, after the sale if there is a surplus, the trustee may require the note to determine beneficiary interest. A recent Appellate case affirmed a long-standing ruling (Stockton v. Barnum) that deed of trust loans dont have to be recorded with the counties in California. A lesser implication lost on QLS is that only a Trustee in a deed of trust loan can conduct a power of sale. QLS defense relies on their point that an agent of the beneficiary had their agent record the notice of default and that Cal. Civ. Code 2924 allows that. Even disregarding the lack of facts of agency relationships presented by QLS, if recording the NOD is part of the power of sale, then the beneficiary or their agents would only seem to apply to mortgages in that section of 2924 relied upon by QLS. II.
1.)

SUMMARY OF FACTS In May of 1988 Plaintiff secured a loan (Subject Loan) to purchase his property at 6724

Waverly Road, Martinez, California (Subject Property) from Valley Federal Savings and Loan (Valley), secured by a deed of trust (DOT) filed with the Contra Costa County Recorder naming All Valley Financial Corp. as Trustee to the DOT.
2.)

The language of the Note refers to note holder to describe parties replacing the Lender as a

result of a transfer of the obligation. The Subject Loan provides grounds to file suit after an alleged default is declared in 19 of the DOT to determine beneficiary. The same paragraph states the notice of default must include language that the borrower may file a suit as a remedy (19 ln 7).
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3.)

There are two endorsements on the promissory note. The one payable to Federal Home Loan

Bank of San Francisco by Valley has no assignments recorded with the Contra Costa County Recorder. Another endorsement payable to [bearer] by Valley is made without recourse and is mis-recorded with the Contra Costa County Recorder. Neither endorsement is dated and both appear to be stamped.
4.)

A purported assignment from Valley to FNMA was filed in July 1991 by the agent for Bank of

the West, Bowest Corp., with an execution date of October 7, 1988. The assignment depicted a pool number for the group assignment, and the Subject Loan was among a group of loans.
5.)

On June 15, 2010 a Notice of Default (NOD) was filed with the Contra Costa County Recorder

referencing the Subject Loan and related DOT, naming JPM as the beneficiary, Quality Loan Service Corp (QLS) as agent for the beneficiary, signed by LSI Title Company by an unnamed signatory. The Trustee named on the NOD was QLS. None of these entities were on the originating promissory note and DOT. When the NOD was filed the outstanding loan principle was approximately $66,000 and the estimated home value exceeded $400,000.
6.)

On August 30, 2010 an assignment from FNMA to JPMorgan was filed by Tim Bargenquast, an

employee of QLS which was purportedly executed Aug. 25, 2010. No notification of a change of beneficiary was received by Plaintiff in violation of TILA regulations.
7.)

On Sept. 23, 2010 a Substitution of Trustee was filed naming QLS as Trustee, which was

purportedly executed on Sept. 16, 2010 by JPMorgan.

8.)

A Notice of Trustees Sale in connection with the DOT was recorded on or about September 28,

2010, with the Contra Costa County Recorders Office by QLS.

9.)

Plaintiffs attorney at the time filed the Complaint on October 14, 2010. SUMMARY JUDGMENT T IS INAPPROPRIATE WHERE, AS HERE, MATERIAL FACTUAL DISPUTES EXIST A. APPLICABLE STANDARDS In a motion for summary judgment, the burden is on the moving party to establish both that there

III.

is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Quadra v. Superior Court of San Francisco, 378 F.Supp. 605 (N.D. Cal. 1974). In determining a Motion for Summary Judgment, the evidence must be viewed by the Court in the light most favorable to the non-moving party, and any factual conflicts must be resolved in favor of
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the non-moving party. [Chesny v. Grisham (1976) 64 Cal.App.3d 120, 134 Cal.Rptr. 238] The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory. Lipson v. Superior Court (1982) 31 Cal.3d 362, 374; see also FSR Brokerage Inc., v. Superior Court (1995) 35 Cal.App.4th 69 (construing 1993 amendment to summary judgment statute, Calif. Code of Civil Proc. 437c). The facts alleged in affidavits by the non-moving party must be accepted as true. Zeilman vs. County of Kern (1985) 168 Cal.App.3d 1174, 1178, 214 Cal. Rptr. 746. Further, the court must consider not only the direct evidence presented, but also the reasonable inferences to be drawn therefrom. California Code of Civil Procedure section 437c(c); Mann v. Cracciolo (1985) 35 Cal.3d 18, 210 Cal.Rptr. 62. Any doubt as to the propriety of the motion is resolved in favor of the party opposing the motion. Stationer's Corp. v. Dunn & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr 449. At the summary judgment stage, the court's sole function is issue-finding, not issue determination. [California Code of Civil Procedure 437c.] The summary judgment procedure is "drastic," and is to be used with caution so that it does not become a substitute for a full trial. [Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 372, 178 Cal.Rptr 783.] The purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of fact. [Citation.] Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. [Citation.] (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) B. BURDEN OF THE PARTIES. Where the defendants are the moving parties, a court must determine whether they have met their burden under subdivision (o)(2) of 437c of producing admissible evidence showing that a cause of action has no merit because "one or more elements of the cause of action, even if not separately pleaded, cannot be established, or there is a complete defense to that cause of action." if the moving party has met its statutory burden and the summary judgment motion prima facie justifies a judgment, we determine whether the opposing party has met its burden under section 437c. (Zavala, supra, 58 Cal.App.4th at p.
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926; 437c, subd. (o)(1-2).) If defendants have met their burden, the court must then determine whether the plaintiff has met his burden under subdivision (o)(2) of section 437c of producing admissible evidence showing that "a triable issue of one or more material facts exists as to that cause of action or a defense thereto." In making this determination, courts must strictly construe the evidence of the moving parties and liberally construe that of the opponents, and any doubts as to the propriety of granting the motion should be resolved in favor of the parties opposing the motion. [Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189.] As explained in Certain Underwriters at Lloyd's Of London (Lowsley- Wlliams) v. Superior Court of Los Angeles County (Southern California Gas Company) (1997) 56 Cal.App.4th 952, "Under the plain language of the statute, the burden does not shift to the plaintiff unless the moving defendant first meets its burden of "showing" that the plaintiff cannot establish at least one element of its cause of action. ( 437c, subd. (o)(2).) Under our holding in Leslie (and under the rules announced in all of the cases decided since the 1993 amendment to section 437c [Stats. 1993, ch. 276]), this initial burden can be met by the presentation of "factually vague discovery responses or otherwise" -- but we know of no case suggesting that section 437c permits the moving defendant to meet its initial burden without any showing at all." Defendant QLS fate depends mostly on the finding of issues with the other Defendants, for which QLS can offer no evidential facts. QLS provides no facts justifying their actions in taking a path to a clouded title to the Subject Property. The Court has already determined the path was crooked, and that the remaining question is whether malice was a factor in their actions. IV. TRIALABLE ISSUES OF FACT FOR FIRST CAUSE OF ACTION DECLARATORY RELIEF The Subject Loan has at least 7 known potential beneficiaries who may have written off the

balance at any time to claim a tax deduction against income. They are Valley Federal Savings & Loan Assn; Federal Home Loan Bank of San Francisco by endorsement; Bank of the West through its agent Bowest Corp.; Fannie Mae by assignment; Home Savings and Loan by succession; Washington Mutual Bank by succession; Federal Deposit Insurance Corp. by seizure; JP Morgan Chase Bank N.A. by Purchase and Agreement or by assignment. Any number of additional unrecorded assignments are possible as the recent Calvo v HSBC Bank (2011) 199 CA4th 118, 130 CR3d 815 decision has ruled for
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deed of trust loans in California. Any one of them could have written off the balance during their possession. Amended discovery responses from Defendant QLS indicate that when the non judicial foreclosure referral was issued to QLS both FNMA as investor and JPM as beneficiary claimed the beneficiary interest and that the title company insuring the Trustee Sale had noted that in their warrants and indemnities section. The only possible relevant facts QLS can offer that are not hearsay relate to their referral processing documents they originated (none). In terms of Declaratory Relief, the only issue they might testify to is whether they were properly substituted by a bona fide beneficiary, and even that would be limited to their acceptance of that substitution by recording it. V. TRIALABLE ISSUES OF FACT FOR SECOND CAUSE OF ACTION SLANDER OF TITLE Amended discovery responses from Defendant Quality Loan Service Corp. corroborate that at

the time of the filing of the notice of default FNMA was documented as the investor and JPMorgan as the beneficiary. Furthermore, QLS states that Chase was informed of the dual beneficiary. Claims are made by Defendant Quality Loan Service Corp that an agent for the beneficiary filed the notice of default. From the ruling of Calvo affirming Stockwell that only the trustee holds the power of sale for deed of trust loans, it is clear that the notice of trustee sale and documents transferring beneficiary powers were falsely filed in violation of Cal. Penal Code 115.5. The Court reviewed this issue even before the amended discovery responses were available and ruled the notice of default void. As such a claim of privilege was denied to QLS, as well as the need to tender. Defendants pleadings are rife with the phrase as agent for the beneficiary, leading the reader to determine to which of the two possibilities the pleading was referring to. It solves the problem of perjury within the context of the pleading, but raises the question whether the estate of the rights to the TV series the beneficiary are being referred to. Or we can turn our cites to Stockwell again, which makes very plain there are 3 distinct parties to a deed of trust loan the borrower, the lender / beneficiary, and the trustee. Trustees must be recorded in order to invoke their power of sale (Cal. Civ. Code 2934a). The substitution shall contain the date of recordation of the trust deed, the name of the trustor, the book and page or instrument number where the trust deed is recorded, and the name of the new trustee. From the time the substitution is filed for record, the new
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trustee shall succeed to all the powers, duties, authority, and title granted and delegated to the trustee named in the deed of trust. The last trustee recorded at the time of the Notice of Default was the original trustee, All Valley Financial Corporation, who does not appear on the Notice of Default of June 15, 2010. Although Defendants claim an agent for the beneficiary filed the Notice of Default, according to Stockwell the beneficiary does not hold the power of sale in a deed of trust loan, and it follows it cannot pass on to an agent powers it does not possess. An agent for the beneficiary would be appropriate for a mortgage. VI. TRIALABLE ISSUES OF FACT FOR THIRD CAUSE OF ACTION QUIET TITLE Plaintiffs interest in the property is unquestioned with a Grant Deed and as the inhabitant to the Subject Property. QLS is not named in the Note or DOT. An unbroken chain of beneficiary interest is necessary for QLS to be substituted as Trustee, yet QLS was aware of a possible break in the chain when two parties appeared on their referral with the right to receive the Subject Loan payments. Unless that chain of beneficial interest leading to the substitution of QLS as Trustee can be proven QLS may not even be a part of the Quiet Title COA. Unfortunately QLS has presented no relevant facts with foundation of that chain of beneficiary interest. In actuality, exposing the double beneficiary in their discovery response presented facts that further question a broken chain of interest. At best JPM acquired the Subject Loan with notice of default through their subsidiary, Chase. As such they cannot claim holder in due course status and must prove their beneficiary interest the old fashioned way actual business records. QLS discovery response validates the transfer was with notice of default. Back in the caboose, the only reason QLS was named in the QT cause of action was in the event they were proven to be the properly substituted Trustee so they could reconvey the Subject Property to comply with such ruling. VII. TRIALABLE ISSUES OF FACT FOR FOURTH CAUSE OF ACTION VIOLATION OF CIVIL CODE 2943 The only relevant aspect of the original note with respect to QLS is in the event they are shown

to be the properly substituted Trustee it will be up to them to return the original promissory note to Plaintiff if so ruled due to his prayer under Cal. Civ. Code 2941. At that time, when there are excess funds, Cal. Civ. Code 2924 provides for the Trustee to determine a beneficiary interest by acquiring it from the beneficiary. To that end QLS might have taken it upon themselves to authenticate the alleged
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Note, and even request the vault records documenting the Notes movement among beneficiaries. Alas, there are no facts showing that QLS ever made such an effort, so there are really no relevant facts they can provide that is not hearsay with respect to the Note. VIII. CONCLUSION Bringing this motion with the knowledge two beneficiaries existed when they recorded the notice of default is a sign of a malicious party seeking to ameliorate egregious actions against the Plaintiff by presumption and falsehood in a court of law and equity. As such, it falls into the arena of a frivolous motion, and considering Plaintiff is an elder, elder abuse for attempted financial fraud. QLS had ample opportunity to provide first hand evidence but failed to show anything but obscuring hearsay and irrelevance instead.

Dated: May 2, 2013

___________________ LEIGHTON LEE PERRY Plaintiff pro se

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