Appellant's Opening Brief

PERRY V.
JPMORGAN CHASE BANK, NA; FEDERAL NATIONAL MORTGAGE ASSOCIATION; QUALITY LOAN SERVICE CORP
APPELLANT'S OPENING BRIEF
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION THREE LEIGHTON LEE PERRY Plaintiff and Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, JP MORGAN CHASE BANK NA, QUALITY LOAN SERVICE CORP, Defendants and Respondents. (Super. Ct. No. MSC10-02914) Court of Appeal No. C139655
Appeal From a Judgment Of The Superior Court, County of CONTRA COSTA Hon. Laurel S. Brady, Judge _________________________________________ APPELLANT'S OPENING BRIEF _________________________________________ David Chavez, Esq. AlvaradoSmith APC 235 Pine Street Ste 1200 San Francisco, CA 94104 Charles Bell, Esq McCarthy & Holthus LLP 1770 Fourth Ave San Diego, CA 92101 Leighton Lee Perry 6724 Waverly Rd, Martinez, CA (925) 949-8377 LL_Perry@att.net Appellant Self-Represented
PERRY V. JPMORGAN CHASE BANK NA et al
TABLE OF CONTENTS
Page
SUMMARY OF ISSUES AND ARGUMENT
Complaint Allegations ............................................................................. 5 Denial of Discovery ................................................................................. 6 Motions for Summary Judgment ............................................................. 6 Summary of Appellants Argument......................................................... 7 STATEMENT OF THE CASE STATEMENT OF APPEALABILITY ISSUES PRESENTED 10 11 12
1.) Did the trial court err in failing to determine whether Respondents have capacity to receive equitable relief from the court as a question of law over jurisdiction of parties?................................................... 12 2.) Did the trial court err in determining subject matter jurisdiction in a summary judgment motion by allowing Respondents new argument in their Reply to their summary judgment motion? ......................... 13 3.) Did the trial court err in taking judicial notice of, and accepting as true, the contents of certain recorded documents? ........................... 16 4.) This case is distinguished from Gomes and Calvo by the Deed of Trust language that overrules the all inclusive Civil Code 2924 et seq and exception to 2932.5 as an other encumbrancer. .............. 17 5.) Did the trial court err in its ruling that there is no genuine dispute whether the Notice of Default (NOD) is void?............................. 21 6.) Did the trial court err in ruling that QLS was an agent of the beneficiary and could act as such to pass agency to yet another party to file the NOD? ...................................................................... 28 7.) Does substantial evidence contradict the trial courts ruling that the original promissory note was presented at Appellants deposition as a permissible lay opinion over Appellants objection? ............. 30 8.) Does substantial evidence contradict the trial courts finding that Appellant attested to his signature?.................................................. 32 9.) Was Appellant denied due process by the trial court relinquishing decisions on motions to compel discovery to a discovery facilitator? ....................................................................................... 33 10.) The Court erred in its decision regarding Plaintiffs objection to judicially noticed documents of Defendants. ................................... 35
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TABLE OF CONTENTS
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11.) The Court erred in its decision that a single beneficiary was properly identified. ........................................................................... 38 12.) The Court erred in its decision to consider the Fourth cause of action in light of the First, Second, and Third causes of action. ...... 39 13.) Did the trial court deny Appellant due process by allowing new significant argument regarding diversity jurisdiction of the court in a reply to a summary judgment motion?............................................. 39 14.) Plaintiff requested Defendants to produce and identify the common business documents showing their vault custodians either transferred the original promissory note to a subsequent beneficiary, or received the original promissory note, or sent or received bailee letters in its stead. ............................................................................. 41 ARGUMENT 42 I. FAILURE TO PROVIDE STATEMENT OF DECISION IS REVERSIBLE ERROR ................................................................... 42 II. RESPONDENTS HAVE SHOWN NO HARM BY APPELLANTS ACTIONS AND THE COURT HAS NO JURISDICTION TO AFFORD THEM EQUITABLE RELIEF ..... 44 III. APPELLANTS APPLICATION OF 2943 IS NOT PREEMPTED AS IT AFFECTS NEIGHER SERVICING NOT LENDING. ....................................................................................... 44 IV. this case identifies a legal basis for an action to challenge Defendants authority to initiate non-judicial foreclosure. .............. 46 V. recent developments ......................................................................... 47 SUMMARY 47
Page ii PERRY V. JPMORGAN CHASE BANK NA et al
TABLE OF AUTHORITIES
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Cases 15 U.S.C. 1641(g) (TILA)........................................................................40 Aceves v. U.S. Bank, N.A. (2011), 192 Cal.App.4th 218...........................27 Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [111 P.2d 740] ................................................................................................30 Cal. Rules of Court 3.1590(a) ....................................................................44 Calvo v HSBC Bank (2011) 199 CA4th 118, 130 CR3d 815.....................22 Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 687 (7th Cir. 2011)..........46 Chao v. Aurora Loan Services, LLC Case No. C 10-3118 SBA, No. C 103883 SBA. (2012) ..................................................................................17 Chesny v. Grisham (1976) [64 Cal.App.3d 120, 134 Cal.Rptr. 238 ...........18 DAmico v. Board of Medical Examiners (1970) 6 Cal.App.3d 716 , 86 Cal.Rptr. 245..........................................................................................33 DeLeon v. Wells Fargo Bank, N.A., No. C10-01390 LHK, 2011 WL 311376, at *6 (N.D. Cal. Jan. 28, 2011) ................................................17 Fontenot v. Wells Fargo N.A, (2011) 198 Cal.App.4th 256; 129 Cal. Rptr. 3d 467.....................................................................................................17 Gale v. First Franklin Loan Servs. (2012) 701 F.3d 1240 ..........................47 Herrera v. Deutsche Bank, 196 Cal.App.4th 1366, 3rd District (2011)......18 Jenkins v. JP Morgan Chase Bank NA (2013) Cal App 4th (G046121)....22, 47 Jolley v. Chase Home Fin., LLC., 213 Cal. App. 4th 872 (2012)...............38 Knapp v Doherty (2004) 123 Cal.App.4th 76 .............................................27 L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp (1991) 1 Cal.App.4th 300, 305 [1 Cal.Rptr.2d 680].............................................30
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TABLE OF AUTHORITIES
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Lawther v. OneWest Bank FSB et al, No. C-10-54, 2010 WL 4936797, at *7 (N.D. Cal. Nov. 30, 2010).................................................................16 Lawther v. OneWest Bank, FSB, No. C 10-00054 JCS, 2012 WL 298110, at *23 (N.D. Cal. Feb. 1, 2012)..............................................................16 Medrano v. Flagstar Bank, FSB (2012), 704 F. 3d 661 ..............................46 Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510 ....................33 Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986) ..................................28 Simon v. City and County of San Francisco (1947) 79 Cal.App.2d 590, 600 ................................................................................................................15 Trinsey v. Pagliaro D.C. Pa. 1964, 229 F. Supp. 647 .................................32 Whittington v. McKinney (1991) 234 Cal.App.3d 123, 127 ......................44
Statutes 12 U.S.C. 2605(e).....................................................................................45 12 U.S.C. 2605(e)(1)(A)-(B) ....................................................................46 12 U.S.C. 2605(i)(3).................................................................................46 15 U.S.C. 1641(f)(2).................................................................................46 Cal. Civ. Code 2943 ..................................................................6, 11, 29, 47 Cal. Evid. Code 453...................................................................................38 Cal. Penal Code 115.5 .........................................................................10, 12 Civil Code 2295.........................................................................................30 Code of Civil Procedure, 437c(m) ............................................................13
Page iv PERRY V. JPMORGAN CHASE BANK NA et al
SUMMARY OF ISSUES AND ARGUMENT Complaint Allegations Plaintiff / Appellant Leighton Lee Perry filed a complaint October 14, 2010 alleging Defendants / Respondents JP Morgan Chase Bank NA1 (JPM) and Federal National Mortgage Association (FNMA) induced him to default on his home loan (Subject Loan) by refusing to evidence their identity as the lender, beneficiary, or note holder of the original promissory note (Note) encumbered by a deed of trust (DOT). Appellant was forced to stop making payments in order not to affirm an illegitimate debt due to non-compliance of statutory terms. Subsequently a Notice of Default (NOD) was recorded by parties unknown to the original documents. Several weeks following the NOD a copy of the Note was provided at the same time JPM was allegedly assigned beneficiary interest2, who subsequently substituted and recorded QLS as the trustee to the DOT. Appellants First Amended Complaint (FAC) [CT7], filed July 29, 2011, contains causes of action for violation of Cal. Civil Code 29433; slander of title; quiet title; and related injunctive relief, and joined Quality Loan Service Corp (QLS) as a Defendant. Appellant opposed QLS motion for Non-Monetary Status in part due to
Subsequent to the action being filed Chase Home Finance, LLC was merged into JP Morgan Chase Bank NA. Chase, F/K/A Chase Home Loan Finance LLC, who was the loan servicer during all periods referenced in this action. 2 JPM cannot claim defense of holder in due course unless the NOD is voided or rescinded because it was published and recorded before the execution date of the alleged assignment 3 ALL STATUTE REFERENCES are to Calif. Civil Code unless otherwise noted
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possible criminal violations [CT8]. Denial of Discovery Appellant made 2 attempts to elicit discovery from Respondents. The first attempt met with a Commissioner who denied motions to compel because Appellant filed the motions to compel after receiving junk responses but before the statutory time to provide answers had elapsed. The second attempt was thwarted by the trial court diverting parties to discovery facilitation which Appellant took at its namesake, but which the trial court and Respondents treated as binding arbitration by holding Appellant to an agreement presented by the facilitator which Appellant did not sign [CT60]. Appellants arguments may be found in his (unopposed) motion for reconsideration of that decision [CT56] and provides the requests and answers of the pertinent elements. The trial courts discovery oversight resulted in not a single person identified by Defendants JPM or FNMA according to the directions of IDENTIFY (name, job title, contact info) in the forms interrogatories (such as a records custodian or vault custodian); nor a single document depicting agency relationship between QLS and either FNMA; McCarthy & Holthus; JPM; or LPS. Motions for Summary Judgment Respondents FNMA / JPM filed a joint motion for summary judgment January 29, 2013; QLS filed theirs on January 29, 2013. The FNMA / JPM motion presented federal preemption of 2943, and their reply introduced new argument regarding that issue [CT53: Pg.8 V.]. Originally they were scheduled 2 weeks apart but were combined to a single date on the trial
courts own motion. Summary of Appellants Argument Appellant is attempting to honor the obligation that he took the property with clear title, passed that clear title to the deed of trust, and will defend the clear title during the term of the deed of trust. The trial court ruled there is no genuine dispute as to the terms of the deed of trust [CT3: Pg4 ln1] yet did not address Appellants issue that elements required by the DOT are absent from the NOD, e.g., only the trustee shall record the notice of default; notice of right to question beneficiary interest in title with a statement to that effect. To the public view, title is now clouded by the actions of Respondents who are strangers to the original contract. The facts show that JPM took the Note with notice of default because the Title Guarantee insured JPM effective the date of the NOD was recorded. QLS provided the following statement in a supplemental response to special interrogatories In this case, at the time of the foreclosure referral this responding party was informed that Chase was the holder of the note and record title reflected that Fannie Mae was the beneficiary of record, As such, this responding party prepared an assignment of the deed of trust into Chase, informed Chase that the assignment was needed, and after confirming that McCarthy & Holthus had authority to execute the assignment on behalf of Fannie Mae under a Power of Attorney, Tim Bargenquast4 executed the assignment as the agent for McCarthy & Holthus. JPM cannot claim holder in due course with its free of borrower
A full-time employee of QLS for whom no power of attorney exists

defenses status and is thus just a holder subject to defenses, or even less, a mere possessor by bailment, holding no rights to enforce under any conditions. As such it explains the fact that no required notice under TILA of change of beneficiary was found in the correspondence among the 527 pages of discovery provided by JPM. It explains why the term vesting assignment is used within the industry because FNMA cannot make a credit bid on a foreclosure, but an agent like JPM, can. It also shows QLS acted with malice, knowing it was recording a document that placed a cloud on the Subject Property title by presenting conflicting beneficiaries in the public record. The next step in implementing the just in time tactic was to record the vesting assignment as close to the trustee sale date as possible in order to maximize the amount of time that public access to title records would return an obvious conflict of beneficiary interest and a clouded title that diminishes the marketability of the property. The result over millions of foreclosures is a percentage of trustee sales taken by a non-cash credit bid and conveyed without any warranty of title. And even though a rescission of the notice followed by the vesting assignment would pass a clear title and the conveyance would be final between parties, the California judiciary has supported this cheating scheme by ruling the out of sequence title recording causes no harm. In this case the trial court ruled the NOD is a notice document, and not a title document [CT3: Pg6 ln21], unless it names a false beneficiary as the authority who elects to foreclose and affect title by a trustee sale and the courts confirm it because the nonjudicial foreclosure was presumed to be regularly conducted. The out of sequence assignment from FNMA to JPM for which there
are no business records to corroborate the consideration and transfer of the Note, raises a question of illegitimacy of the transfer, thereby making a case for violation of Penal Code 115.5, felony false filing. The trial court denied Appellant the discovery of business records that account for the apparent inability to provide a copy of the Note when requested when the recorded assignment stated the Note was transferred and should have been available for copying. As a result Appellant is prejudiced in his obligation to make certain there is a finality of clear title between parties in the event Respondents actions result in a trustee sale of the Subject Property. Respondents claim the violation of 2943 is preempted by federal lending and servicing statutes, likely due to its provision of defining a tort with punitive damages. The recent legislative reenactment after of the statute that was set to expire January 1 of this year and its implied consideration, and the clear language of the federal code that exempts from preemption tort and real estate law, demonstrates the importance of the states right (and responsibility) to track title of property. The bulk of case law regarding non-judicial foreclosures is based on non-binding federal court decisions interpreting California statutes that have no legal effect except in the absence of California case law. As such, they do not regard the beneficial interest of clear title, because the federal government is the authority of all land bequeathed to the states. It is therefore up to the states to track title interests to maintain the value of clear title to land and to the public interest.
STATEMENT OF THE CASE Appellant intended to extinguish the Subject Loan with a reverse mortgage if necessary to access the considerable equity in the Subject Property [CT3 pg 5 ln19] and requested a beneficiary statement, including a contemporary copy of the original promissory note (Note), under Cal. Civil Code 2943, to confirm a clear title still exists. A copy of the promissory note [CT15: Exh 1] is necessary because that is the sole document containing title affecting endorsements in terms of the authority to change the chain of title history as a result of a trustee sale. The (mis)recorded beneficiary was FNMA from a questioned assignment recorded in 1991 [CT16: Exh 2] due to unexplained endorsements with no corresponding recorded assignments inter alia. The FAC alleges that Appellant would suffer severe financial damages as a result of his home (Subject Property) being wrongfully foreclosed by persons unknown to the original loan documents and requested that payments made to strangers to the contract be returned to Appellant in the event a legitimate beneficiary should subsequently come forward, among other requests. [CT7]. QLS, allegedly acting as an agent for an unidentified beneficiary, received and acted upon a Referral for Non-judicial Foreclosure that listed both a beneficiary (JPM) and investor (FNMA) simultaneously claiming rights of a beneficiary with the power to affect title history by effect of foreclosure and trustee sale. [CT47: Exh C, D Pg3 Ln6]. QLS caused their alleged agent LSI Title to file a notice of default under the ruse QLS was an agent of the beneficiary named as JPM on the notice, but under the direction of McCarthy & Holthus, who are agents of FNMA, thereby
clouding the title of the Subject Property while violating Penal Code 115.5 (felony false filing). Subsequent assignment to JPM and substitution of trustee to QLS was executed and recorded weeks later that coincided with the production of a copy of the Note. No rescission of the NOD was recorded. Appellant has good reason to question the assignment from the original lender that stated the Note was transferred but no copy could be produced and no general ledger or accounts receivable records were produced by the assignee (FNMA) to substantiate either the transfer of the Note or loan level accounting for the obligation. As a result there remains a question of any subsequent assignments (e.g.JPM), especially when there are no records produced of a loan level receivable or transfer of the Note as stated on the assignment. The trial court responded to these concerns by ignoring the request for statement of decision showing facts supporting any equitable interest that would allow the court to provide remedy to Respondents. Respondents aver that their attorneys statements that they possess the Note, statements taken out of context from Appellant, and questionable assignments are sufficient for the court to award them another free house. Even if the proffered note can be proven authentic, and proof of clear title can be made, then the tort of 2943 comes into full circle, and Appellant is exonerated of any damages that might have been suffered by Respondents due to their own actions, plus $300 and all damages. STATEMENT OF APPEALABILITY This appeal is from the entry of judgment of the Contra Costa County Superior Court on orders granting summary judgments in favor of
Respondents Federal National Mortgage Assn (FNMA), JP Morgan Chase Bank NA (JPM), and Quality Loan Service Corp (QLS) in a consolidated hearing of a case filed by Appellant Leighton Lee Perry and is authorized by the Code of Civil Procedure, 437c(m). The entry of judgment for Respondents FNMA and JPM was filed July 19, 2013 [CT5], and that of QLS was filed September 19, 2013 [CT4] and served upon Appellant. TRIAL COURT RULING Based upon denial of discovery responses from, and motions for summary judgment by Respondents, the trial court entered a final judgment in favor of the Respondents (CT 3) and left unanswered a request for a statement of decision regarding standing (or capacity) of Respondents for equitable relief from the Court. A pending motion (unopposed) for reconsideration of motions to compel further responses from FNMA, JPM, and QLS was dismissed by the trial court [CT55; CT6]. This court should be troubled by a trial court denying discovery in circumstances where a creditor allegedly acquired a loan with notice of default, and thereby became subject to actions by borrower as a possible holder not in due course by the California Commercial Code statutes CCC 3032 et seq. As such, it violates the obligation of borrowers of mortgages to defend the clear title to their property so the legislative goal of finality between parties may be achieved. ISSUES PRESENTED
1.)
Did the trial court err in failing to determine whether Respondents
have capacity to receive equitable relief from the court as a question of law
over jurisdiction of parties? Appellant requested a statement of decision in his request for hearing in response to the Courts tentative ruling on the summary judgments Plaintiff is putting the Court on notice that he will be asking the court to provide the factual determination of the amount of money Fannie Mae paid to the original lender for the Subject Loan, and the amount of money JP Morgan paid to Fannie Mae for the Subject Loan as a question of standing as a party with equitable interest to the action. Plaintiff needs the courts determination on these facts, and the pleadings in which they were found, to present to the Appeallate [sic] Court. [CE: Pltf G] which was served by fax on all parties, was acknowledged by the trial court (TR4: Pg 4 ln 2), and conditionally restated by Appellant at the hearing under duress from the trial court (TR4: Pg 21 ln18), to which the trial court refused to answer. Appellant first raised the jurisdictional issue of capacity in his Motion for Modification of Preliminary Injunction5 [CT11: Req Stmt Decision], which was denied by the trial court. Appellant challenged the finding of a valid negotiated assignment from the original lender to FNMA in his MSJ Opposition [CT44: Pg6 ln7], his statement of objections [CT51], and at the hearing for summary judgment [TR4: Pg 6 ln12].
2.)
Did the trial court err in determining subject matter jurisdiction in a
summary judgment motion by allowing Respondents new argument in their Reply to their summary judgment motion? The trial of a law suit is not a game where the spoils of
Plaintiff refers to the monthly payment as rent in his pleadings in order not to affirm an illegitimate debt. or a debt that would have been extinguished by a payoff from a reverse mortgage or third party payoff with subrogation waived
5
victory go to the clever and technical regardless of the merits, but a method devised by a civilized society to settle peaceably and justly disputes between litigants . The rules of the contest are not an end in themselves. Simon v. City and County of San Francisco (1947) 79 Cal.App.2d 590, 600 [180 P2d.398], cited by Adams v. Murakami (1991) 54 Cal.3d 105,120. The jurisdictional issue of preemption of 2943 was raised in Defendants Motion for Summary Judgment [CT13: Pg2 ln23; P&A VII]. The cases presented considered overcharging payoff demand statement fax fees and inappropriate RESPA claims. This issue is not about a RESPA claim because the QWR referred to 2943, not RESPA; nor was the QWR for an amount-binding payoff demand statement (Jelsing), but rather, for a beneficiary statement, and none of Respondents citations are not on point. This point was presented in Appellants opposition to summary judgment [CT44: Pg9 ln10]. To the extent Plaintiff believes he is entitled to receive loan ownership information through a QWR, he is mistaken. Seeking information as to the owner of the loan is not a valid purpose of a QWR; rather, a QWR can only request information regarding servicing the loan. 12 U.S.C. 2605(e)(1)(A); see Gates v. Wachovia Mortgage, FSB, 2010 WL 2606511, at *3-4 (E.D. Cal. June 28, 2010) (holding that inquiry into ownership of a loan does not qualify as a QWR); Lawther v. OneWest Bank FSB et al, No. C-10-54, 2010 WL 4936797, at *7 (N.D. Cal. Nov. 30, 2010) Fn 2 U.S.C. 2605(e)(1)(B). Byrd v. Guild Mortg. Co., 2011 WL 6736049, *2 (S.D. Cal 2011). Obot v. Wells Fargo Bank, N.A., 2011 WL 5243773, 2 (N.D. Cal. 2011) (In order to qualify as a QWR, the correspondence must satisfy several statutory requirements. Among other things, and most pertinent to the discussion here, a QWR must request information relating to the servicing of a loan. RESPA defines the term servicing to mean receiving any scheduled periodic payments from a borrower pursuant to the terms of
any loan ... and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.); see also, Lawther v. OneWest Bank, FSB, 2012 WL 298110, 14 (N.D. Cal 2012)( Not all requests that relate to the loan are related to the servicing of the loan Williams v. Wells Fargo, 2010 WL 1463521, *3 (N.D. Cal 2010). A loan servicer only has a duty to respond if the information request is related to loan servicing. Copeland v. Lehman Bros. Bank, FSB, 2010 WL 2817173, *3 (S.D. Cal 2010)) Over Appellants objection the Court allowed Respondents to revise their argument in their reply brief to their summary judgment motion to state HOLA covers national banks as well as savings and loan institutions [CT52]. The unfair surprise of new legal citations6, delay of discovery ruling and consolidation of summary judgment motions to be heard together by the trial court prejudiced Plaintiffs ability to address the issue on a level appropriate to its gravity to the case. RESPA had no provisions to identify the beneficiary before the Dodd-Frank act that went into effect in July21, 2010, a month after both QWRs had been received by Respondents. Appellant requests the court to consider the following on federal preemption of 2943 in response to the issue raised in Respondents Reply to Opposition of MSJ [CT52] as the likely considerations that led the legislature to reenact 2943 effective January 1, 2014. In general, when a state law claim necessarily requires the lender to provide specific notices or disclosures during the lending or foreclosure process, courts have found that such claims are preempted by HOLA. See Lawther v. OneWest Bank, FSB, No. C 10-00054 JCS, 2012 WL 298110, at *23 (N.D. Cal. Feb. 1, 2012) (citing cases). "On the other hand, when a claim is based on the general duty not to misrepresent
6
Javaheri, McNeeley
material facts, and when application of a state law does not regulate lending activity, district courts have found that the claims are not preempted by HOLA." see, e.g., DeLeon v. Wells Fargo Bank, N.A., No. C10-01390 LHK, 2011 WL 311376, at *6 (N.D. Cal. Jan. 28, 2011) (finding that HOLA did not preempt UCL claim based on misrepresentation but dismissing claim for failure to allege injury). Chao v. Aurora Loan Services, LLC Case No. C 10-3118 SBA, No. C 103883 SBA. (2012) Here, Appellant alleged the requisite prejudice by stating he was forced to stop making payments in order not to affirm an illegitimate debt to a party who could not even provide a copy of the Note to identify its beneficiary interest, and a NOD was recorded as a result.
3.)
Did the trial court err in taking judicial notice of, and accepting as
true, the contents of certain recorded documents? Appellants evidentiary objections [CT46: #2, 4; CT50: #4] of illegibility and foundation to the judicially noticed assignment of the original lender to FNMA [CT14: Exh 2; CT13: Exh 3;] of FNMA / JPM and QLS [CT18: Exh B] were overruled by the trial court [CT3: Pg 2 ln 18; Pg 3 ln 9 et seq], citing Fontenot7. Appellant alleges it was an abuse of discretion for the trial court to translate SEE EXHIBIT A and END OF DOCUMENT into a loan number corresponding to the Subject Loan or other elements identifying the Subject Loan or Subject Property. As such there is no foundation to tie the only recorded assignment from the original lender to the FNMA or JPM to either the Subject Loan or Subject Property. The Fontenot court stated
Fontenot v. Wells Fargo N.A, (2011) 198 Cal.App.4th 256; 129 Cal. Rptr. 3d 467
7
In Herrera8, the defendants sought judicial notice of the truth of recited facts within the recorded documentsfor example, that a particular party ... is the present beneficiary under a particular deed of trust. (Id. at p. 1375.) As the court noted, this is the type of statement found in Poseidon to be ineligible for judicial notice. (Herrera, at p. 1375) If this court looks to the exhibits attached to the Juan Sierra Declaration they may find a legible copy of the assignment with proper attachments, and details such as Pool 0066629 and a number that corresponds on the front page of the Note, and the allegation that the Note was transferred (together with the note) then coupled with the recent Calvo decision where deed of trust loans are not other encumbrancers and dont require public recording under Civ. Code 2932.5, the question arises why any recorded assignment in a California non-judicial foreclosure case is judicially noticed as a relevant document. 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 the non-moving party. Chesny v. Grisham (1976) [64 Cal.App.3d 120, 134 Cal.Rptr. 238]. It was an error of the trial court to find relevance of documents that provide no material facts specific to the action or a foundation of business records to support their consideration.
4.)
This case is distinguished from Gomes and Calvo by the Deed of
Trust language that overrules the all inclusive Civil Code 2924 et seq and exception to 2932.5 as an other encumbrancer.
Herrera v. Deutsche Bank, 196 Cal.App.4th 1366, 3rd District (2011)

The plain language provides the right of borrower to challenge the authority of a foreclosing party attempting to usurp a beneficiarys rights despite judicial activism legislating the all inclusive nature of Civ Code 2924 denies borrowers their right to certain clear title to their property [CT18: Exh 3 19]. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. (emphasis added) The plain language relies upon the other encumbrances found in Civ. Code 2932.5 and the public recording requirements that Calvo denies affects deed of trust loans [CT18: Exh 3 Pg1] BORROWER CONVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. (emphasis added) At the time the NOD was recorded Appellant had not received the requested copy of the Note from his QWR within the statutory limits; the NOD was populated entirely of strangers to publicly recorded documents, the original contract, and to Appellant; and required language on the NOD was replaced with you only have the legal right to stop the sale of your property by paying the entire amount demanded by your creditor [CT18: Exh E] The trial court addressed this with this ruling This leaves the Court with the question of question of whether recording the assignment to JP Morgan after the
notice of default represents a procedural irregularity in the nonjudicial foreclosure proceedings. The Court finds that it does not. [CT3: Pg 6 ln 22] to which Appellant points out that rescission of notice of default is a commonly used document with county recorders to correct such a procedural irregularity and that failure to do so obviously places a cloud on the title of a property about to be sold at auction (thereby prejudicing borrower by reducing its marketability and increasing the chance that the lenders credit bid will succeed as the highest). To this the trial court states there is no prejudice to the borrower, and that Appellant failed to show facts to support his slander of title cause of action in citing Aceves. [CT3: Pg7 ln3]. This case is distinguished from Aceves9 because the trustee of record (presumably) was known to Aceves as the point of contact, where in this case an alleged agent of an alleged beneficiary were both unknown to the borrower. Furthermore, the trial court disregarded the fact that the different beneficiaries of Aceves were from 2 different actions, so it was correct that the first action named the proper party, the second did not, and the irregularity of 2 actions caused the wrong party to be identified on the subsequent notice, which is not applicable in the case at hand. Here, an agent of the beneficiary has no duty of representing borrowers title interests, which corresponds with the plain language in the DOT that only the Trustee shall record a notice of default and sale which specifically
Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 232

excludes the lender (or its agents), while including the lender in further instructions [CT18: Exh 3 19] [TR4: Pg 12 Ln28 et seq] Trustee shall cause this notice to be recorded in each county in which any part of the Property is located. Lender or Trustee shall mail copies of the notice as prescribed by applicable law to Borrower The trial court would have us believe that a prudent man, charged with maintaining clear title to his property, has no choice but to pay these potential usurpers off due to the draconian non-judicial legislation from judicial activists in California. It is further distinguished by 2924j(a)(4), where a distribution of surplus is considered after a trustee sale by evidence of possession of the promissory note to determine beneficiary interest. In the case of a promissory note secured by a deed of trust, proof that the person holds the beneficial interest may include the original promissory note and assignment of beneficial interests related thereto. If the Note isnt necessary to foreclose, and CC 2924 is all inclusive, how do the courts expect the trustee to comply with this provision? Further provisions of partition of real property interests, found in CCP 872 et seq would likely come into play as 2924 has no provisions for proving possession of a financial instrument transferred under notice of default and as such, unable to claim holder in due course with its accompanying privilege of defenses. Whether an unknown bona fide beneficiary exists is of no concern to this court. Whether a party unknown to the Note alleges the ability to affect title by electing to exercise a power to foreclose, is.
The trial court presented its finding that possession of the Note is evidence of beneficiary interest, yet is unconcerned with the material fact that no party could produce a copy of the Note before the NOD, which is the basis of the request for a beneficiary statement and tort in Civil Code 2943. An alleged original of the Note is possessed by counsel representing both FNMA and JPMorgan, but business records substantiating right of possession, requested in discovery, were not produced. With the decision of Calvo v HSBC Bank (2011) [199 CA4th 118, 130 CR3d 815] stating assignments of deed of trust loans do not require recordation because they are not other encumbrancers, it remains a material question of fact, beyond a shadow of a doubt, of who the note holder is10.
5.)
Did the trial court err in its ruling that there is no genuine dispute
whether the Notice of Default (NOD) is void? The terms of the subject Deed of Trust required a statement on the NOD that the borrower may litigate the standing of the party filing the notice [CT44: Pg2 Ln14] [CT18: Exh 3 19] [CT60: Pg16 Ln5]. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. (emphasis added). No such statement is apparent on the face of the NOD, yet the trial court ruled There is no genuine dispute as to the terms of the subject deed of trust [CT3: Pg4 Ln1]. The trial court made no reference to any violation of
Curiously the recent Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497 had in its opinion The loan was secured by a deed of trust, which encumbered her residence located in Laguna Niguel, California.
10
statute that would invalidate those contract terms. Furthermore, plain language in the DOT states that only the Trustee shall record a notice of default and sale which specifically excludes the lender (or its agents), while including the lender in further instructions [CT18: Exh 3 19] [TR4: Pg 12 Ln28 et seq] Trustee shall cause this notice to be recorded in each county in which any part of the Property is located. Lender or Trustee shall mail copies of the notice as prescribed by applicable law to Borrower Although 2924 may allow an agent of the beneficiary to file a notice in the absence of any contractual language otherwise, here we have such language in the contract and no provision barring the exclusion in the statute. Only a single beneficiary possesses the power to elect to foreclose, as indicated in the terms of the contract referring to he / she. On the date the NOD was recorded Defendants state that JPM was the note holder / beneficiary, and not FNMA [TR4: Pg22 Ln 13]. In fact, plaintiff submits as part of his own opposition evidence a trustees sale guaranty showing defendant JP Morgan as being the deed of trust beneficiary of record. (Perry Decs., Exhibit C.) [CT3: Pg5Ln2] Discovery responses from FNMAs vault system showed it did not possess the Note at that time. There are no facts explaining how then, with an execution date a few weeks later, FNMA could execute an assignment of the Note and beneficiary interest to JPM. Substantial law holds an assignor cannot pass on more powers than it possesses. When the NOD was issued, FNMA had no powers, by the trial courts reasoning. Evidence from QLS showed the party issuing the foreclosure referral
noted that JPM was the beneficiary and FNMA was the investor on the date the NOD was filed. Investor is not a term known to the contract. The trial court made the following ruling on Defendants demurrer to the FAC [CT57] Second, plaintiff alleges anomalies in the chronology of the foreclosure process that would appear to render the notice of default "void," and not merely voidable: 6-15-10 8-30-10 JP Morgan and QLS recorded a notice of default. (FAC, paragraph 26.) JP Morgan recorded an assignment of deed of trust from Fannie Mae to JP Morgan. (FAC, paragraphs 28 and 29.) QLS recorded a substitution of trustee. (FAC, paragraph 31.)
9-23-10
These allegations have been confirmed by defendants' own request for judicial notice of the same recorded documents referred to by plaintiff. (See defendants' Request for Judicial Notice, Exhibits 3, 4, and 5.) In addition, defendants' request for judicial notice demonstrates that the assignment of the subject deed of trust from Fannie Mae to JP Morgan was not executed until August 25, 2010, and that the substitution of trustee was not executed until September 16, 2010 (RJN, Exhibits 4 and 5 [notarized signatures dated August 25 and September 16, 2010].) Thus it is undisputed that the notice of default was recorded by JP Morgan and QLS more than two months before an assignment to JP Morgan was effected (August 25, 2010), and more than three months before QLS was appointed as the foreclosure trustee (September 16, 2010). Defendants have failed to make a persuasive argument why a deed of trust [sic] recorded by persons with no interest in the subject property should not be deemed void. (See, Cal. Civil Code, sections 2924(a)(1) and 2924b, subd. (b)(4); Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 876 877.)
A year later, when confronted with facts that presented competing (or no) beneficiary interest among parties when the NOD was recorded, the trial court it ruled In fact, plaintiff submits as part of his own opposition evidence a trustees sale guaranty showing defendant JP Morgan as being the deed of trust beneficiary of record. (Perry Decs., Exhibit C.) when the of record reflected FNMA was the last recorded beneficiary until weeks after the NOD was recorded, and the guaranty had noted that as an exception. No effort to rescind and re-issue the NOD was recorded by Respondents. Discovery responses from Respondent QLS indicate the willful clouding of the Subject Property instead: In this case, at the time of the foreclosure referral this responding party was informed that Chase was the holder of the note and record title reflected that Fannie Mae was the beneficiary of record. As such, this responding party prepared an assignment of the deed of trust into Chase, informed Chase that the assignment was needed, and after confirming that McCarthy & Holthus had authority to execute the assignment on behalf of Fannie Mae under a Power of Attorney, Tim Bargenquast executed the assignment as the agent for McCarthy & Holthus.11 Plaintiff argues that with respect to deed of trust loans under Stockwell, on which Calvo relied, only the trustee holds the power to foreclose. There is no mention of or its agent in the language, which makes sense because trustees must be publicly recorded on or before conducting a foreclosure (with special provision for notifying borrower in the event notice is given the same day), but that language does not extend to their agents or to
Statement in Support of Motion to Compel Responses to Special Interrogatories to QLS, SET ONE, SI (5) [Pg 8 ln 14]
11
beneficiaries (and their agents). In the case at hand, QLS is named on the notice as agent for beneficiary who had their agent, LSI Title Company, actually sign the notice. JPM was named as beneficiary on the NOD. A power of attorney was produced by QLS establishing agency between McCarthy & Holthus (M&H) and FNMA, and JPM is named in a power of attorney for FNMA, but QLS is not named in any document establishing any agency relationship with anyone, either in pleadings or in their production from discovery. Nor did QLS claim they were a subsidiary of McCarthy & Holthus. Appellant objected to the noticed substitution of trustee, citing Herrera, and as such the trial court had no uncontroverted facts to base its decision that QLS was agent for the beneficiary. The trial court raises the argument that the NOD is not a title document and so sloppy paperwork is rewarded even though the Legislature provides statutory procedures to correct such errors. Appellant would proffer that a NOD is notice under UCC that disallows a defense of beneficiary interest in due course and subjects a transferee after such notice to the requirement to prove the chain of beneficiary interest if challenged by the borrower. A NOD also indicates the election to affect title by foreclosure with its statement of election to sell, putting the public on notice of an active lien on the title. This conflicts with the Calvo decision that deed of trust loans are not other encumbrancers and do not have to record transfers to protect their right to foreclose as holders in due course. The language of the statute that allows an execution date earlier than the filing date of an assignment demonstrates the intent of the legislature that
the fact of recording an assignment executed after the notice of default is of consequence. The trial court denied discovery to Plaintiff in order to allow its inference from the (objected to) fact of recordation by QLS that it acted with authority because where else would QLS have received the deed of trust information (publicly recorded), the dollar amount of the default, etc.? [Order p6 ln27]. The discovery questions by Plaintiff relating to agency, particularly to LSI Title Company, who actually filed the NOD, were denied by the trial court, perhaps because it would have uncovered the answers contrary to the trial courts inferences. And finally, the trial court depends on a reference to case law that deals with robo-signing, notification dates and periods, when the case at hand deals with parties authority to execute such notice. First, Aceves12 ruled a mis-named beneficiary on a notice of default did not prejudice homeowner because the notice instructed inquiries for some specific issues to be directed to the trustee of record. (However request a modification was not considered in the ruling, and only a beneficiary can modify the loan) Unlike Knapp13, in the instant case the trustee / (alleged agent of incorrect) beneficiary named on the NOD was not of record. Cal. Penal Code 115.5 has frequently been cited as basis of prejudice to Plaintiff as a result of parties unknown to borrower recording documents affecting credit and reputation. The trial court couldnt even get it right that it was an alleged agent for QLS who filed the NOD, although it was plainly stated in
12 13
Aceves v. U.S. Bank, N.A. (2011), 192 Cal.App.4th 218; 120 Cal.Rptr.3d 507 Knapp v Doherty (2004) 123 Cal.App.4th 76; 20 Cal.Rptr.3d 1
Plaintiffs pleadings. This ties to the Fourth cause of action and the QWRs requesting a contemporary copy of the promissory note to define the current note holder (term defined by the originating note) who has the power to substitute trustees and determine if any special endorsements depict a complete chain of title to the current note holder, and thus define whether the note holder has a status of holder in due course or is subject to claims by the borrower. The presumption is that the only document exhibiting such endorsements would be the original promissory note. When subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986) (holding that the party seeking to invoke the courts jurisdiction bears the burden of establishing that jurisdiction exists) Chases efforts to challenge subject matter jurisdiction in federal courts have been previously rejected, See e.g. Jefferson et al. v. Chase Home Finance, 2008 U.S. Dist. LEXIS 101031 (N.D. Cal. Apr. 29, 2008) (Hon. Thelton E. Henderson rejected Chases argument that NBA and OCC regulations preempt consumer protection laws in connection with Chases improper application of loan prepayments); see also In re Chase Bank USA, N.A. Check Loan Contract Litigation, 2009 U.S. Dist. Lexis 108636 (N.D. Cal. 2009) (Hon. Maxine M. Chesney rejected Chases argument that plaintiffs state law claims concerning the banks practice of issuing convenience checks on credit card accounts was preempted by the NBA) Gutierrez v. Wells Fargo Bank, N.A., No. C 07-05923 WHA, --- F. Supp. 2d ---, 2013 WL 2048030, at *1 2 (N.D. Cal. May 14, 2013)
(Gutierrez III); see Gutierrez II, 704 F.3d at 727 (we hold that Gutierrezs claim for violation of the fraudulent prong of the [UCL] by making misleading misrepresentations with regard to its posting method is not preempted, and we affirm the district courts finding to this extent); Gutierrez I, 730 F. Supp. 2d at 1129 Wells Fargo affirmatively reinforced the expectation that transactions were covered in the sequence made while obfuscating its contrary practice of posting transactions in high to - low order to maximize the number of overdrafts assessed on customers. A recent Order in federal district court arrived at this decision on a related question Based on Gutierrez, Defendants blanket argument that the UCL claim is preempted in its entirety fails. As will be discussed in more detail infra, Plaintiffs have sufficiently stated a claim for fraud which, as pled, also states a claim for a UCL violation under the fraudulent prong. Plaintiffs have alleged both that Defendants failed to advise them of actual costs of services and inflated fees, and also that false statements were made to borrowers when Defendants told them the fees were in accordance with their mortgage agreements. Failure to adequately disclose this practice can shape reasonable expectations of consumers and be misleading. See Gutierrez III, 2013 WL 2048030, at *2. Appellant alleges that failure to adequately disclose the beneficiary interest by supplying a copy of the note shaped reasonable expectation that he would acknowledge an illegitimate obligation by making a subsequent payment to Respondents as a result of their misleading actions. This is the tort allowed under Cal. Civ. Code 2943, excluded from preemption under federal banking law, regardless of the Note being subsequently produced.
6.)
Did the trial court err in ruling that QLS was an agent of the
beneficiary and could act as such to pass agency to yet another party to file the NOD? A party claiming agency must provide facts to support the contention.
There are no facts directly linking QLS to either FNMA or JPM, nor to the party whom QLS alleges filed the NOD as QLS agent, nor any authorization of ability to pass agency powers to another. QLS identified no documents relating them to any captioned party as an agent, and declared that all documents were produced. Although QLS identified McCarthy & Holthus as agent for FNMA, there are no facts demonstrating agency or subsidiary relationship of QLS to McCarthy & Holthus. Civil Code 2295 provides: "An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." "The existence of an agency is a factual question within the province of the trier of fact whose determination may not be disturbed on appeal if supported by substantial evidence." (L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp., internal citation omitted.) The party asserting the existence of a principal-agent relationship has the burden of proving it existed, as well as the scope of the authority given to the agent by the principal with respect to the transaction upon which the action is brought. (California Viking Sprinkler Co. v. Pacific Indemnity Co. (1963) 213 Cal.App.2d 844, 850.) , (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [111 P.2d 740].). Putting parties within the context of California Civil Jury Instructions (CACI) 3705. Existence of "Agency" Relationship Disputed [QLS] claims that [QLS] was [JPM]'s agent and that [JPM] is therefore responsible for [QLS]'s conduct. If [QLS] proves that [JPM] gave [QLS] authority to act on [its] behalf, then [QLS] was [JPM]'s agent. This authority may be shown by words or may be implied by the parties' conduct. This authority cannot be shown by
the words of [QLS] alone. (emphasis added) QLS discovery responses provide no facts on which to base the claim they were acting on behalf of the beneficiary when filing the NOD. QLS stated in their Opposition to Plaintiffs Motion to Compel Production of Documents and Further Responses to Admissions and Interrogatories Filed with the Court Feb. 6, 2013 [Pg 3 ln20]: More importantly, Qualitys counsel explained that Quality had produced its entire file concerning the subject property and regardless of whether the Plaintiff approved of the documents produced or not, there were no other documents to produce. In short, there are no documents identified naming QLS and either JPM, FNMA, LPS, or McCarthy & Holthus that define an agency relationship. Discovery efforts by Plaintiff that allowed opportunity for QLS to present documents establishing agency were obstructed by the trial court. [Mtn Cmpl QLS (amended) Admission #7] So how could QLS be an agent of the beneficiary when documents from Respondents show a conflict of multiple beneficiaries and trustee when the NOD was filed, and an assignment to JPM from FNMA exhibits an execution date weeks after the NOD was filed?
7.)
Does substantial evidence contradict the trial courts ruling that the
original promissory note was presented at Appellants deposition as a permissible lay opinion over Appellants objection? If a party can provide a copy of a loan document upon request, it is a reasonable inference that the party has possession of the original. (FAC, paragraph 75.) [CT3: Pg5 Ln19] In the instant case upon request was not satisfied within the statutory
limits, causing Appellant to stop making payments or risk affirming an illegitimate debt. Reasonable inference is not an equivalent for facts, it is a rationalization for lack of facts, particularly in light of the contradictory facts that the Note was unavailable in paper format in correspondence from Respondents that was substantiated by Respondents own business records stating it never received the Note [CH47: Exh E Pg 1 iVault Info; Pg2 ln3]. The trial courts reaction to this contradiction was to deny Appellant discovery of records explaining the circumstances of the reconstituted Note. Further, plaintiff was presented with an original promissory note at his deposition, and he acknowledged that the signature on those documents appeared to be his (citations) The document in question was surreptitiously introduced as a variable rate note at Appellants deposition, and no phrase original promissory note was used in any of Counsels statements for FNMA / JPM of what was presented or said at Appellants deposition. The unspecific phrase used by Counsel was original loan documents. The trial courts use of an to describe a singular item, the only original promissory note for the Subject Loan, creates doubt as to exactly what loan document it is referring to. Furthermore, Statements of counsel in their briefs or argument while enlightening to the Court are not sufficient for purposes of granting a motion to dismiss or summary judgment. [Trinsey v. Pagliaro D.C. Pa. 1964, 229 F. Supp. 647] A contradicting lay opinion by counsel for QLS present at the same deposition described it as a copy of the promissory note [CT20: Pg 5 ln3]. Clearly it is not a clear and unequivocal admission made by the party referred to in DAmico v. Board of Medical Examiners
(1974) when Appellant stated he wouldnt swear that that [proffered document] is not a copy. [CT14: 1 Pg 16 ln 12]
8.)
Does substantial evidence contradict the trial courts finding that
Appellant attested to his signature? Q: And I will ask you, Mr. Perry, if thats your signature? A: That is an accurate representation of my signature, and it seems to be in a blue ink, and it also seems really consistent in the amount of pressure, so I wouldnt swear that that is not a copy, but, yes, it does appear to be my signature. [CT14: 2; Exh 1, Pg16] Q: (different loan document) Is that your signature, sir? A: Yes, that appears to be my signature, but again with the same objection. It really doesnt show pressure points of someone that made a handwritten signature, so yeah, with with that objection. [Ibid Pg17 ln8] Appellant objected (overruled by the trial court) that the statement was taken out of context. [CT46: [ 15 - 18]14 and [CT44: #17b]. On review, the appellate court looks to the record to see if there are facts to support the trial court or jury's findings. . Rather, the court must examine the entire record to determine whether a triable issue of fact exists. (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510). Clearly it is not a clear and unequivocal admission referred to in DAmico v. Board of Medical Examiners (1970) 6 Cal.App.3d 716 , 86 Cal.Rptr. 245 . This ruling contradicts the uncontested fact that Defendants own evidence indicated FNMA did not possess the Note before the notice of
Plaintiff mis-numbered the Chavez statement in his opposition to summary judgment and it is correctly identified here
14
default was filed, nor produced any discovery of requested business records corroborating beneficial interest in the Subject Loan. Appellant was denied the right to compel presentation of those documents by the trial courts action of denying Appellants motions to compel documents from Respondents, and withholding that ruling to the point that Appellant had less than 2 days to incorporate that ruling into the multiple summary judgment motions the court scheduled for the same date on its own motion. On the date the trial court ruled on its motion for scheduling it denied Appellants request to set out the trial date15. Plaintiff pointed out that if there was a transfer of the beneficiary interest from FNMA to JPM, together with the note, there was no evidence of a TILA notification to the borrower of such a transfer as a result of Appellants discovery efforts and the trial courts denial of compulsion of such evidence.
9.)
Was Appellant denied due process by the trial court relinquishing
decisions on motions to compel discovery to a discovery facilitator? The trial court mandated parties attend discovery facilitation for a program that was to be compulsory several weeks later. The facilitator provided an unsigned agreement and findings the trial court adopted as its ruling to deny Appellant motions to compel discovery. Respondents request for relief failed to the extent they sought discretionary relief under CCP 473(b). A party who seeks relief under
15
No record of hearing available due to court cutbacks of availability of recorded hearings and failure to accommodate indigent and insolvent parties as a consequence of the denial of due process
473 on the basis of mistake, inadvertence, or general neglect must demonstrate that such mistake, inadvertence, or general neglect was excusable. In determining whether the partys mistake or inadvertence was excusable, the court inquires whether 'a reasonably prudent person under the same or similar circumstances' might have made the same error. Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258. The only question is whether there is at least slight evidence of excusable neglect. See Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 696. Appellant would point out that this was the period when Respondents JPM and FNMA were preparing their motion for summary judgment. No specific finding is available as to which reason was given by either the facilitator or the trial court. The facilitator program is not consistent among the several counties and their Superior Courts, affecting rights of parties, and the cut-off date for mandatory participation in the program had not passed at the time it was ordered by the trial courts own motion. Further argument is presented in Plaintiffs NOTICE AND MOTION FOR RECONSIDERATION OF ORDER RE: PLAINTIFFS AMENDED MOTIONS TO 1) COMPEL FURTHER PRODUCTION OF DOCUMENTS, AND FURTHER RESPONSES TO FORM AND SPECIAL INTERROGATORIES FROM JP MORGAN CHASE BANK NA AND FEDERAL NATIONAL MORTGAGE ASSOCIATION (SET 2); AND FROM QUALITY LOAN SERVICE CORP (SET 1)
2) ORDER ADMISSIONS DEEMED ADMITTED FROM FEDERAL NATIONAL MORTGAGE ASSOCIATION (SET 2); REQUEST FOR SANCTIONS filed and served May 21, 2013 (vacated by action of the Court July 8, 2013 without notice to parties).
10.)
The Court erred in its decision regarding Plaintiffs objection to
judicially noticed documents of Defendants. Nos. 12-14: moot. The Court has taken judicial notice of the recorded documents. (TR 5-23-13) Although A court may also take judicial notice of facts not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code, 452, subd. (h).), in terms of assignments of mortgages with deeds of trusts not requiring public recording, there is no reasonable indisputable accuracy available to discover unrecorded assignments according to the judicial activists ruling in Calvo that deed of trust loans are not other encumberancers and are exempt from Civ. Code 2932.5. 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. As in Herrera, Plaintiff disputed the truthfulness of the contents of the recorded documents, particularly the alleged assignment to FNMA. Although the Declarant for FNMA / JPM spoke to the business records of JPM, he did not mention similar competence of the business records of the original lender and FNMA, and therefore the decision applied in Herrera would apply to his knowledge of the alleged assignment of the Subject Loan from the original lender to FNMA, rendering subsequent transfers in the chain of title inadmissible. And finally, Declarant noted there may be facts based on information and belief presented in his declaration but did not identify them. Furthermore, Plaintiff did not learn until the afternoon the day before opposition to the motions for summary judgment were due that his motion to compel was denied that sought the very business records Declarant was interpreting would not be made available to Plaintiff by the Courts actions. To set the legal stage Plaintiff found himself as a party, this court should bear in mind the acceptance of judicial notice of evidence from an internet source presented by FNMA / JPM in their supplemental request for judicial notice to the summary judgment served with their reply by regular mail (for a hearing scheduled for May 23, 2013) to which the court responded The JP Morgan defendants filed a request for judicial notice with their reply papers on May 17, 2013. The request is granted [CT3]
and the denial of judicial notice of similar sources presented by Plaintiff Excerpt of Pg 27 of the FDIC Compliance Manual [Section V] (Dec. 2012) found at http://www.fdic.gov/regulations/compliance/manual/pdf/V-1.1.pdf concerning 12 C.F.R. 1026.39 (TILA requirement of notifying borrower of change of lender) to which the trial court responded Request No. 2 is denied. Plaintiff has failed to furnish the Court with sufficient information to enable it to take judicial notice of this document, or document fragment. (Cal. Evid. Code, 453.) Also, plaintiff has failed to establish the relevance of this document; the FAC does not state a cause of action for breach of the federal Truth In Lending Act. Both documents were presented with respect to the issue of federal preemption of Cal. Civ. Code 2943 requirement to produce a true copy of the promissory note to confirm the title affecting powers of the beneficiary / note holder. Neither document should have been noticed to conform with the ruling of Jolley v. Chase Home Fin., LLC., 213 Cal. App. 4th 872 (2012): Substantive information and contents of documents taken from websites, even official government websites, do not deserve judicial notice under California evidentiary rules, even where there are no factual disputes over the content or substance of the documents. But the very odd thing is that a prudent man can go to the fanniemae.com website and download a Deed of Trust form (3005w) that
concludes with the following clause: 25. Statement of Obligation Fee. Lender may collect a fee not to exceed the maximum amount permitted by Applicable Law for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of California. And a prudent man would then wonder why such a clause is necessary if it is preempted by federal law?
11.)
The Court erred in its decision that a single beneficiary was properly
identified. In fact, plaintiff submits as part of his own opposition evidence a trustees sale guaranty showing defendant JP Morgan as being the deed of trust beneficiary of record. (CT48: Exhibit C.) In actuality the document referred to also identified and noted as a conflict that both an investor, with equal rights of a beneficiary, was identified simultaneously so it is uncertain who declared a default. (CT46: #11), to which the trial court responded No. 11: overruled. The declarant is competent to interpret defendants business records, and plaintiff has conceded that he stopped making payments on his loan [to a pretender lender who could not comply with Californias implementation of the UCC-3 legal right of presentment and provide a copy of his promissory note.] (FAC, paragraph 23); plaintiffs arguments go to the weight or legal significance of the evidence, and not to its admissibility. [existing content inserted] Incredibly the Court was able to distinguish, yet failed to name in its ruling,
which of the two beneficiaries declared a default, and which of the two beneficiaries elected to pursue non-judicial foreclosure proceedings (perhaps by naming each other as agents of each other) from a contract that specified a single beneficiary or subsequent note holder.
12.)
The Court erred in its decision to consider the Fourth cause of action
in light of the First, Second, and Third causes of action. Resolution of the Fourth cause of action is precedent to determining the remaining causes of action. The Court mistook Plaintiffs reference to TILA as a cause of action where the intent was not to claim damages, but rather to show that Defendants did not believe they were legitimate holders of title of the Subject Loan because they did not comply with Federal law in effect at the time to notify borrower of a change of note holder, e.g., from FNMA to JPM. See (15 U.S.C. 1641(g)).
13.)
Did the trial court deny Appellant due process by allowing new
significant argument regarding diversity jurisdiction of the court in a reply to a summary judgment motion? The court should take note that 2943 self-repealed Dec. 31, 2013. It was re-enacted effective Jan. 1, 2014, and the same provisions affecting this case regarding protection of property title by identifying beneficial identity and interest are restored. Why would the state legislature not have taken the opportunity to remove those portions that were preempted by federal law? Defendants raised the issue of federal preemption in their responses to Plaintiffs motions to compel discovery by citing irrelevant California Appellate cases. None of them dealt with conveyance and warranty of clear
title and identity of beneficiary.
At the hearing to compel discovery of April 18, 2013, the trial court provided no tentative ruling, took oral arguments16, rescheduled both summary judgments for the same day, refused to delay the trial date, and stated it would mail parties its decision. Judgments on the discovery motions were filed on April 26, 2013, post marked on April 30, and received by Plaintiff the afternoon of May 1, 2013, the day before the deadline to file Opposition for simultaneous motions for summary judgment. Although a plaintiff wishing to rely upon unpleaded theories to defeat summary judgment must move to amend the complaint before the hearing (see Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699, 39 Cal.Rptr.2d 65; see also 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18, 272 Cal.Rptr. 227.) Appellant, facing multiple motions for summary judgment, was denied this opportunity by the delayed service by regular mail of the trial courts ruling. At the summary judgments hearing of May 23, 2013, Plaintiff raised the issue that the Courts decision on his discovery motions was not presented in a tentative ruling17, making the hearing for the motions one of unfair surprise for an elder pro se litigant, and the delay in serving parties caused undue hardship to Plaintiff. To this the Court responded with the following:
Transcript unavailable due to removal of audio recording of court hearings and prohibition of personal recording devices in the courthouse 17 The ruling was simply Parties must appear. Parties are ordered to meet and confer in person prior to Court hearing for all 4 motions
16
The Court has noted plaintiffs statements that the Court is guilty of interference by taking certain discovery motions under submission, and plaintiffs insinuation that the Court deliberately timed its ruling on those motions so that plaintiff would not receive the ruling until the day his opposition papers were due. (See Part D of plaintiffs objections to the evidence submitted by defendant QLS.) The Court has previously admonished plaintiff concerning the penalties for contempt of court, and so admonishes plaintiff again
14.)
Plaintiff requested Defendants to produce and identify the common
business documents showing their vault custodians either transferred the original promissory note to a subsequent beneficiary, or received the original promissory note, or sent or received bailee letters in its stead. This may affect the unclean hands claim by Appellant if felony forgery is indicated by a lack of such records in light of there being no lost or destroyed claims made by Respondents. Furthermore, Plaintiff objected to the notice of assignments under Herrera, retaining his right of review as a question of facts presented therein. The reason for this request is the fact Defendants did not comply with Appellants QWR to provide a contemporary copy of the promissory note as a determination of an interest of title held by the deed of trust trustee. As such, they are tortfeasors under Appellants cause of action for violation of 2943, and subject to actual, punitive, and exemplary damages. Again, due process was denied Appellant by the Court by disallowing rebuttal argument to a question of standing raised by Respondents in summary judgment motion and changed in their reply. Appellant tried but failed to
impress the point upon the Court that questions of title and tort are exempt from federal preemption of banking laws. Plaintiff sees the abdication of the discovery requests to a discovery facilitator by the Court as a violation of his due process beyond the discretion of a judge. ARGUMENT I. FAILURE TO PROVIDE STATEMENT OF DECISION IS REVERSIBLE ERROR Plaintiff presented the following text in his request to be heard on the
tentative ruling Plaintiff is putting the Court on notice that he will be asking the court to provide the factual determination of the amount of money Fannie Mae paid to the original lender for the Subject Loan, and the amount of money JP Morgan paid to Fannie Mae for the Subject Loan as a question of standing as a party with equitable interest to the action. Plaintiff needs the courts determination on these facts, and the pleadings in which they were found, to present to the Appeallate [sic] Court. The Courts response to this request was given at the hearing Mr. Perry, the communications we got from you indicated that you wanted to address a number of issues that are not part of the tentative ruling or, frankly, the issues that I think are relevant to this proceeding; so I'm going to ask you to limit your comments to any comments about the tentative ruling and the issues raised in the motion as opposed to some others. And I can tell you that some of the areas that you indicated in your communication you wanted to cover today are clearly outside of that. (fn Transcript Pg4 ln 2 11) As a result of these opening remarks, Appellant advised the Court of its defect in its tentative ruling by reasserting his request for statement of decision as a statement of question at the closing of his remarks And that led me to my second toughest question which is -- I'll state
it differently. There is no evidence that any amount greater than zero has been paid for the subject loan by either of the defendants and so there is no equitable interest that they can show as a result. And that question of the equitable interest raises that to a point of law as a point -- as opposed to a question of equity. (fn Transcript Pg21 ln 18 Pg22 ln 2) Civil Code Procedure 632, 634 state: In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at trial. 634. When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue. When a party requests a statement of decision, it must be prepared, and the failure to do so is reversible error. [Citations.] (Whittington v. McKinney (1991) 234 Cal.App.3d 123, 127.) Section 632 must be read in conjunction with California Rules of Court, rule 3.1590, which governs the procedure for issuance of a statement of decision. On the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk. (Cal. Rules of Court, rule 3.1590(a).) The rules require that the trial court announce an intended decision rather than making a final order or judgment to give a party an
opportunity to request a statement of decision to address the principal controverted issues. (Id., (d).). II. RESPONDENTS HAVE SHOWN NO HARM BY APPELLANTS ACTIONS AND THE COURT HAS NO JURISDICTION TO AFFORD THEM EQUITABLE RELIEF Of the 527 discovery pages delivered to Appellant none show any amount greater than zero exchanged for the sale or purchase of the Subject Loan, despite specific discovery requests. Denied the support of the trial court for such documents, it is impossible for Appellant to determine which of several possibilities a third party payoff with waiver of subrogation (TARP), foreclosure default insurance (AIG), special endorsee write-off for tax claim for loss; a private purchase that has been mis-filed; reflect reality. What remains as a fact is there are no accounting business records of either FNMA or JPM corroborating they hold or held beneficiary interest to affect title by foreclosure by payment of consideration greater than zero. What remains as a fact is despite the statements on the assignments from the original lender to FNMA and from FNMA to JPM that the Note was transferred there are only business records depicting FNMA never received the Note, making it uncertain how it could transfer what it did not possess. III. APPELLANTS APPLICATION OF 2943 IS NOT PREEMPTED AS IT AFFECTS NEIGHER SERVICING NOT LENDING. In Medrano RESPA provision 12 U.S.C. 2605(e) requires a servicer to timely respond to a borrowers qualified written request (QWR). A QWR must include the name and account of the borrower and either a statement that the borrower believes the account to include an error (listing the
reasons for believing such), or a request for specific information described with sufficient detail. Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 687 (7th Cir. 2011). Additionally, any information sought must relate to the servicing of the loan. [12 U.S.C. 2605(e)(1)(A)-(B)]. RESPA defines the term servicing to encompass only receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts . . . , and making the payments of principal and interest and such other payments. [12 U.S.C. 2605(i)(3)] The statute thus distinguishes between letters that relate to borrowers disputes regarding servicing, on the one hand, and those regarding the borrowers contractual relationship with the lender, on the other. Medrano v. Flagstar Bank, FSB (2012), 704 F. 3d 661. Questions regarding anything that preceded the servicers role (like questions about the loan origination, terms, or validity) do not qualify as servicing. There is provision under TILA [15 U.S.C. 1641(f)(2)]18 that provides Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation. A full reading of the statute leads to the conclusion the duty to provide notice under 1641(f)(2) applies to a servicer-assignee, which in this case includes Chase Home Loan Finance, LLC, when the QWRs were
In 2009 Congress added subsection (g), which requires that not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer
18
sent. See Gale v. First Franklin Loan Servs. (2012). This would likely preempt Plaintiffs request for a beneficiary statement found in 2943, but not the contract validity aspects of the request for a copy of the promissory note. To a prudent man it would appear that TILA and RESPA preemption would only apply to servicing, and a question of beneficiary interest from a perspective of its affecting title to a property without severely adversely affecting lending activities would not be subject to federal preemption. This was the application Plaintiff made of the tort cause of action found in Cal. Civ. Code 2943. IV. THIS CASE IDENTIFIES A LEGAL BASIS FOR AN ACTION TO CHALLENGE DEFENDANTS AUTHORITY TO INITIATE NON-JUDICIAL FORECLOSURE. Unlike Jenkins19, the contract language both authorizes and obligates the borrower to question the authority of a beneficiary who attempts to slander the clear title to the Subject Property. Appellant requested a QWR under 2943 before a NOD was recorded to which Respondents did not return a copy of the Note with its endorsements within the statutory limits, forcing Appellant to cease making payments in order not to affirm an illegitimate obligation. Respondents subsequently caused a notice of default to be recorded. The plain language of the Deed of Trust provides for such a challenge, and requires language to that effect which is missing in the NOD.
Meaning of Contract Ascertained From 4 Corners of Instrument Where contract language is clear and explicit and does not lead to an absurd result, a court will ascertain contractual intent from the
19
Jenkins v. JP Morgan Chase Bank, N.A., (2013) Cal App 4th (G046121)
written provisions of the contract itself and go no further. ( Cal.Civ. Code 1638, 1639.)
Words Used Given Their Ordinary Meaning The words of a contract generally are to be understood in their ordinary and popular sense unless the parties use them in a technical sense or a special meaning is given to them by usage. (1644.) RECENT DEVELOPMENTS
V.
There has been a spate of national agreements against parties named in this action by the states to prevent states from violating their laws regarding real property foreclosures. For all we know the payments were laundered to fund terrorist activities20. SUMMARY The trial court did not see it as substantial facts that the assignment relied upon by Respondents stated a transfer of the Note occurred from the original lender, yet the transferee was unable to provide a copy of the Note; their own computer records showed they never received it; a special endorsement (undated) on the back of a copy of the Note was unrecorded with the county, stamped canceled, and another endorsement (undated) in blank was stamped below. The trial court points to the out of context phrase it does appear to be my signature, as a copy of a document might depict as was alluded to at the beginning of the sentence That is an accurate representation of my signature . Respondents counsel were very careful not to use the
There is a reason why Respondent JP Morgan Chase Bank NA made a legal settlement with the states for $13,000,000,000 since the filing of intent to appeal, and declared a quarterly loss this year in part due to a set-aside of $7,000,000,000 to increase the reserve for foreclosure litigation to $23,000,000,000.
20
phrase original note under penalty of perjury, but used original loan documents and a variable rate note in the declaration to give the appearance that they possess the authenticated original promissory note. At the deposition the document was introduced to as an adjustable rate note. Likely that is why the counsel for QLS in attendance stated it was not the original, but a copy of the Note that was presented to Appellant. Respondents do not refute that they did not respond to Appellants QWR with a copy of the Note within the statutory time, and attack it with an argument of federal preemption. The federal decisions and California decisions based on federal decisions do not relate to the states right to guarantee clear title, but rather, the payment of principle, interest, and fees. Respondents present no federal statute that allow for a request for a copy of the note which is necessary to account for title affecting endorsements. As a result, that aspect of 2943 is real estate and tort law and exempt from federal preemption. The remaining facts come from an affidavit of a professional witness who is ambiguous about which statements are based on personal knowledge, such as business records of an assignment over 20 years ago, and which are hearsay. In short, Respondents FNMA and JPM do not present incontrovertible facts sufficient to support a motion for summary judgment. It stands to reason that a property subject to auction will bring a lower bid if title to it is clouded, so a credit bid by a last minute lender is more likely to prevail. To that end the title has been slandered and the NOD is void.
In this case the court denied Appellants discovery motion to compel documents showing business records of the purchase and sale of the Subject Loan by Respondents [CT56], and none were present among the 527documents Respondents provided in discovery. None of the provided documents depict an account receivable loan level payment to the transferee of the alleged assignment from the original lender. As it stands in the California legal arena today, a prudent man is expected to agree to give up their home on notice by parties unknown to their copy of the contract due to an untraceable chain of interest unrecorded with the county, unconfirmed by their loan servicers, and have to pay over $500 to file an action to recover $300 if a beneficiary refuses to identify themselves from a 2943 QWR because the federal laws have no practical enforcement of clear title.
DATED: December 15, 2013
Respectfully submitted,
__________________________ Leighton Lee Perry, Appellant
CERTIFICATE OF COMPLIANCE Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains __13617__ words, including footnotes. In making this certification, I have relied on the word count of the computer program used to prepare the brief. By _____________________ Leighton Lee Perry Plaintiff / Appellant

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PERRY V.

APPELLANT'S OPENING BRIEF

PERRY V. JPMORGAN CHASE BANK NA et al

SUMMARY OF ISSUES AND ARGUMENT

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A full-time employee of QLS for whom no power of attorney exists

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Did the trial court err in failing to determine whether Respondents

Did the trial court err in determining subject matter jurisdiction in a

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This case is distinguished from Gomes and Calvo by the Deed of

Herrera v. Deutsche Bank, 196 Cal.App.4th 1366, 3rd District (2011)

Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 232

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Does substantial evidence contradict the trial courts finding that

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Was Appellant denied due process by the trial court relinquishing

The Court erred in its decision regarding Plaintiffs objection to

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title and identity of beneficiary.

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Plaintiff requested Defendants to produce and identify the common

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DATED: December 15, 2013

__________________________ Leighton Lee Perry, Appellant

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Appellant's Opening Brief

Appellant's Opening Brief