The application of plaintiff Alexander S. Lauvao for a temporary injunction is granted. The defendants are enjoined from the following acts:

· instituting, maintaining, or continuing any action or procedure for the collection of alleged debt as against plaintiff or against any other property of plaintiff

· any foreclosure sale, any offering for sale, any listing, publication, or other conduct seeking to convey or alienate the property or any portion thereof

· engaging in any conduct which creates, or tends to create, any lien, encumbrance or cloud upon title to the property or any portion thereof, in favor of any person or entity

· any actions of any kind depending upon or based on the encumbrance and/or any recorded notices of default and/or intention to foreclose or any of them against the property

Plaintiff is to post a bond of $10,000.

Plaintiff contends that defendants are trying to foreclose on a deed of trust that contains his forged signature. His complaint contains causes of action for: (1) declaratory relief; (2) cancellation of instrument; (3) quiet title; (4) injunctive relief; and (5) for legal fees and costs under the California Homeowner Bill of Rights.

Plaintiff attests that his mother was the owner of the property until 8-3-04, when she executed a grant deed that conveyed the property to herself and him as joint tenants.

The deed of trust on which defendants are trying to foreclose is dated 4-20-07. Plaintiff attests that this is the same day on which his sister passed away, and he remembers the day clearly. (The date is confirmed by the certificate of death submitted with the supplemental reply.) Plaintiff is adamant that neither his mother nor he entered into any financial documents on that day or for the rest of the month. Plaintiff’s mother passed away in 2010, and he acquired all interest in the property by right of survivorship.

Plaintiff further attests that he only recently became aware of the encumbrance and the pending foreclosure sale in December 2013, as his brother was living at the house (and paying the bills) before then.

Responding defendant argues that there was no forgery as seen by a simple comparison of signatures on the challenged deed of trust with plaintiff’s genuine signature on other documents. It also contends that the deed of trust contains an acknowledgment of the signature by a notary and this is prima facie proof of the authentication of his signature. Defendant further claims that defendant’s claims are time-barred and that he received the benefits of the loan proceeds, which means that the equities do not favor him.

With regard to defendant’s argument regarding comparison of signatures, defendant has not submitted the declaration of any expert in this field. The Court does not have expertise in the authentication of signatures, and plaintiff has attested, under oath, that the signature on the deed of trust is not his.

With regard to the acknowledgment executed by the notary, this is not conclusive proof that the deed of trust was signed by plaintiff in light of his attestations to the contrary. Furthermore, plaintiff’s counsel attests in the declaration submitted with the supplemental reply that the notary’s journal has not been available for inspection because the notary did not turn the journal over to the County Clerk/Recorder when his or her commission expired in 2009. As such, both sides have been deprived of further information regarding the execution of the loan documents and deed of trust.

With regard to defendant’s assertion that plaintiff’s claims are time-barred, this is not necessarily the case. If the loan was a complete forgery, it is not an enforceable document. According to Costa Serena Owners Coalition v. Costa Serena Architectural Committee (2009) 175 Cal.App.4th 1175, 1193, which is cited in both the supplemental opposition and the supplemental reply:

[T]he courts distinguish between those cases in which a purported instrument never had any legal inception or existence due to the fact that one party was induced to execute an agreement totally different from that which he apparently made, or where, due to the fraud, there was no execution at all and those cases in which the agreement was induced by fraudulent misrepresentations or concealments which in no degree make the instrument anything other than it purports to be. In the first case it is clear that the purported agreement is void ab initio and an action to avoid it may be brought at any time, or it may be treated as nonexistent; while in the second case the agreement is voidable and may be rescinded at the election of the party defrauded….

A forged document would fall into the first category described in the above passage.

In addition, even if only plaintiff’s signature is a forgery and plaintiff’s mother executed the deed of trust without his knowledge and received the proceeds of the loan, plaintiff might not able to avoid the encumbrance. A mortgage or deed of trust executed by one joint tenant, or a judgment lien against the interest of one joint tenant, does not sever the joint tenancy or affect the right of survivorship. A lien that is secured only by the separate interest of one joint tenant expires and is extinguished on the death of the debtor/joint tenant, and the surviving joint tenant holds the title free of the lien. See Hamel v. Gootkin (1962) 202 Cal.App.2d 27, which is cited in the supplemental reply, and Miller and Starr California Real Estate (3d ed. 2013), § 12:31.

Thus, not only does a balancing of the equities favor plaintiff but there is a likelihood that he may prevail on his claims.