Case Name: Abraham et al v JP Morgan Chase et al
Case No. 16CV290410

I. Factual and Procedural Background

Plaintiffs Roy Abraham and Danilo Suva (“Plaintiffs”) initiated this action on January 21, 2016 against Defendants JP Morgan Chase, N.A. MTC Financial, Inc All persons Unknown Claiming on Plaintiff’s Title. The Complaint arises out of a non-judicial foreclosure process against plaintiffs’ property at 16700 Gnarled Oak Lane Morgan Hill, California. Plaintiffs allege that Chase lacks legal standing to foreclose under a deed of trust encumbering the subject property and securing a $628,000 loan. The original beneficiary of the DOT was Washington Mutual Bank, FA and the original trustee was California Reconveyance Company. Plaintiffs assert that the subject loan was securitized in March 2007 in a manner that allegedly violated a mortgage backed security trust’s Pooling and Servicing Agreement. Plaintiffs believe this event extinguished the power of sale created by the DOT. Plaintiffs have set forth 3 causes of action in their complaint for: 1) violation of security trust; 2) lack of standing and 3) to void or cancel trustee’s deed upon sale.
Admittedly, this is plaintiffs’ 5th lawsuit attempting to thwart the non-judicial foreclosure process.
Defendant Chase filed this motion to declare plaintiffs vexatious litigants pursuant to Code of Civil Procedure Sections 391.1 and 391.7. Defendant also seek an order requiring plaintiffs to furnish a bond for security to cover Defendant’s reasonably anticipated legal fees and costs as well as a stay of this action until plaintiffs have furnished the security. Defendant has also requested a pre-filing order. Plaintiffs have filed an opposition to this motion and defendant has filed a reply.

II. Request for Judicial Notice

Defendants filed a request for judicial notice in support of their motion asking the court to take judicial notice of some 16 exhibits, 15 of which are Court records. Exhibit 1 is a Deed of Trust recorded in Santa Clara County.
A precondition to taking judicial notice is that the matter is relevant to an issue under review. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301.) From a general standpoint, the exhibits at issue are relevant herein as they are directly relied upon by Defendant to support its motion. A review of Defendant’s memorandum as well as the request for judicial notice also shows that Defendant clearly articulated the relevance of each exhibit to its motion. Defendant stated that the exhibits support its motion by showing that Plaintiffs have commenced, prosecuted, or maintained in propria persona at least five litigations that have been finally determined adversely to them; and that Plaintiffs, while acting in propria persona, repeatedly filed unmeritorious motions, pleadings, or other papers, or engaged in other tactics that are frivolous or solely intended to cause unnecessary delay. Besides, in view of the nature of Defendant’s motion, the relevance of the exhibits they submitted is self-evident.

Evidence Code § 452(b) mandates this Court to take judicial notice of the records of any court of this state, or any court of record of the United States, or of any state of the United States. In furtherance of this mandate,

Court records are expressly subject to judicial notice under Evidence Code § 45(d). Official acts of government agencies are otherwise judicially noticeable under Evidence Code § 452(c), and that provision has been broadly construed to include public records and proceedings. (See Evid. Code, § 452, Law Revision Commission Comments.) Thus, the records in question are proper subjects for judicial notice. They are also manifestly relevant to the pending motion as indicated above. Defendants’ request for judicial notice is therefore GRANTED, with the caveat that judicial notice does not establish the truth of statements or allegations in the records or factual findings that were not the product of an adversary hearing involving the question of the existence or nonexistence of said facts. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882; see also see also Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; People v. Long (1970) 7 Cal.App.3d 586, 591.)

Plaintiffs’ have asked this Court to take judicial notice of 4 exhibits including: 1) A Property Securitization Analysis Report; 2) A Preliminary Title Report; 3) A Purchase Assumption Agreement and 4) Documents from an out of state Florida case; Washington Mutual Bank v Waisome 2009-CA-005717 consisting of an unfiled declaration (which is missing page 5) from a completely separate case involving different parties. Unlike defendant, plaintiffs have not cited any legal or statutory authority under which the Court could take judicial notice of these documents. None of the documents appear to be public records and none have been authenticated by a personal with actual personal knowledge or how those documents were generated. Moreover, the Court does not find these documents particularly relevant to this motion. Plaintiffs’ Request for Judicial Notice is DENIED.

III. Vexatious Litigant Determination

CCP 391(b) “lists four alternative definitions for a vexatious litigant.” (Holcomb v. U.S. Bank National Assoc. (2005) 129 Cal.App.4th 1494, 1501.) Defendant argues that Plaintiffs are vexatious litigant under the first and third definitions. As the moving party, Defendants bear the burden of proving that Plaintiff is a vexatious litigant. (Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838, 842.)

1. Vexatious Litigant Determination under CCP 391(b)(1)

CCP 391(b)(1) defines a vexatious litigant in relevant part to be a person who, “[i]n the immediately preceding seven-year period[,] has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person…”

Defendant lists a number of litigations that it claims were commenced, prosecuted or maintained by Plaintiffs in the past seven years while acting in propria persona, and that all these litigations were finally determined adversely to Plaintiffs. Defendants identify by number the following 7 cases:
1. Case 1—Abraham v Washington Mutual Bank et al. Santa Clara County Superior Court Case No. 112CV227311. In this case, plaintiffs, in pro per, alleged defendants lacked standing to foreclose and there were irregularities in the non-judicial foreclosure process. Case 1 was dismissed with prejudice following a demurrer that was sustained without leave to amend. A Judgment was entered dismissing the Third Amended Complaint in February, 2014.
2. Case 2- Abraham v Washington Mutual Bank et al., Santa Clara Superior Court Case No. 112CV227423. The plaintiffs, in pro per, sued the same parties as in Case 1 over the same non-judicial foreclosure proceedings contending defendants lacked standing to foreclose. Case 2 was dismissed after a demurrer was sustained without leave to amend. Judgment of Dismissal was entered in March, 2013.
3. Case 3- Abraham v JP Morgan Chase Bank Santa Clara County Superior Court Case No. 114CV266067. In this third case, plaintiffs sued the same parties as the first 2 cases for a third time. Plaintiffs asserted defendants lacked standing to pursue a foreclosure. Judge Overton sustained a demurrer holding that res judicata barred plaintiffs’ claims because they were the same claims as raised in Case 1. Judgment of Dismissal was entered in March, 2015.
4. Case 4-Abraham v Bank of America NA, Santa Clara County Superior Court Case No.115CV284837. Plaintiff named two new defendants Bank of America NA and MTC Financial alleging they lacked standing to foreclose. The Court sustained a demurrer for failure to state claims and because the claims are barred by collateral estoppel arising out of Cases 1, 2 and 3. Notice of entry of order and judgment of dismissal with prejudice was filed on March 24, 2016.

Plaintiffs have also received 3 adverse judgments apparently not involving the subject foreclosure proceedings.

5. Case 5-Abraham et al v Plaza Home Mortg, Inc. Santa Clara County Superior Court Case No. 2012-1-CV-224975. Plaintiffs prosecuted this action in pro per and a judgment was entered against them in this action. Plaintiffs’ attempt to vacate the judgment was unsuccessful.

6. Case 6- Apolinario et al v. EMC Mortgage Corp. Alameda County Superior Court Case No. HG13690360. Mr. Suva prosecuted this case in pro per and the case was dismissed with prejudice following a demurrer sustained without leave to amend. The Court dismissed this action in January 2015.
7. Case 7-Apolinario v Wells Fargo Bank, NA, Alameda County Superior Court Case No. HG15756225. Mr. Suva prosecuted this case in pro per and it was dismissed in November, 2014 following a demurrer sustained without leave to amend.

Plaintiffs marshall no argument at all as to why the foregoing lawsuits may not count toward the five litigations in seven years that have been determined adversely against them pursuant to CCP 339(b) (1). Cases 1–7 have been determined adversely to Mr. Suva. And, Cases 1-5 have been determined against both Mr. Suva and Mr. Abraham. The Court finds that Plaintiffs commenced, prosecuted, or maintained at least 5 litigations while acting in propria persona, and all these litigations were finally determine adversely to Plaintiffs. Thus, the Court determines Plaintiff to be a vexatious litigant pursuant to CCP 391(b)(1).

2. Vexatious Litigant Determination under CCP 391(b)(2)

CCP 391(b)(2) describes a vexatious litigant as a person who, “After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either(i)the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.”

Defendant contends plaintiffs fall under this category because in Case 1, plaintiffs unsuccessfully challenged Chase and California Reconveyance Company’s standing to conduct non-judicial foreclosure proceeding pursuant to a DOT. And, in this case as well as Cases 2, 3 and 4, plaintiff have attempted to re-litigate the same claims and issues that were raised in Case 1. The plaintiffs do not directly refute this argument but rather argue that the vexatious litigant statute violates their Due Process rights and First Amendment rights. However, the vexatious litigant statute has repeatedly withstood constitutional attacks on these grounds. See, Hupp v County of San Diego 2014 US Dist. LEXIS 87183 at 6-7; In re RH (2009) 170 Cal. App. 4th 678,704. The Court finds that defendants’ arguments have merit. Thus, the Court determines Plaintiffs to be a vexatious litigant under CCP 391(b)(2).

IV. Request for a Stay of Further Proceedings Until Plaintiff Furnishes Security

Upon notice and hearing, a defendant may move the Court for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3, provided that the motion is based upon the ground, and supported by a showing, that: 1) the plaintiff is a vexatious litigant, and 2) there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant. (CCP 391.1)

Defendant in the present case has successfully established that Plaintiffs are vexatious litigants. And, defendant’s claim plaintiffs do not have a reasonable probability of prevailing in their claims against defendant. Defendant notes that this is the fifth lawsuit Plaintiffs have filed alleging irregularities in the non-judicial foreclosure of the subject property. And, plaintiffs recently filed a sixth lawsuit alleging irregularities in the non-judicial foreclosure at the subject property in 2016—Abraham v Duke Partners LLC Case No. 16CV292444. Plaintiffs apparently are seeking “re-evaluation” and “re-litigation” of those who “have legal standing to foreclose.” Plaintiffs’ lawsuit appears to be barred by the doctrines of res judicata and collateral estoppel. JSJ Partnership v Mehrban (2012) 205 Cal. App. 4th 1512,1526. Boekin v Phillip Morris USA Inc. (2010) 48 Cal. 4th.788, 797. It appears the claims raised in the present action are the same claims as raised before. The Court must look at whether the claim or cause of action is for the invasion of a single primary right. Burdette v Carrier Corp (2008) 158 Cal. App. 4th 1668, 1674-1675. The focus is on the harm suffered as opposed to the legal theory asserted by plaintiffs. Bay Cities Paving & Grading v. Lawyer’s Mutual Insurance Co. (1993)5 Cal. 4th. 854, 860. In this action as well as previous ones, plaintiffs alleged they were harmed by the foreclosure of their property by parties who purportedly lacked the authority to foreclose.
Plaintiffs claim the assignment was void under New York law and the mortgage cannot be foreclosed. However, the case upon which plaintiffs rely, Wells Fargo Bank N.A. v Erobobo 39 Misc. 3d 1220 (A) (N.Y. Sup. Ct.2013) has been overturned in Wells Fargo Bank N.A. v Erobobo 127 A.D.3d 1176 (N.Y.Sup. Ct 2015).

Defendant has set forth both legal and factual arguments showing that plaintiffs do not have a reasonable probability of prevailing against defendant in this litigation.

V. Conclusions and Orders

1. This Court finds that within the past 7 years Plaintiffs have commenced, prosecuted or maintained in propria persona at least 5 actions or proceedings in any state court that either were finally determined adversely against them and have satisfied the requirements of CCP 391 (b) (1).
2. This Court finds that Plaintiffs have satisfied the requirements of CCP 391 (b) (2)
3. This Court finds that based on the evidence presented Plaintiffs do not have a reasonable probability of prevailing in the instant actin.
4. Plaintiffs are hereby ordered to post security in the amount of $10,000 in favor of the Defendant as a condition of proceeding with this action.
5. Pursuant to Code of Civil Procedure Section 391.6, this action shall be stayed until 10 days after Plaintiffs have given written notice to the Defendant that the above-referenced security has been posted.
6. The Court grants defendant’s request for a pre-filing order under Code of Civil Procedure 391.7.