Case Name:    Lucino Lujano v. HMC Assets, LLC, et al.

Case No.:        1-14-CV-272243

After denying a temporary restraining order, the Court issued an order to show cause on the application of Plaintiff Lucino Lujano for a preliminary injunction to prevent Defendants HMC Assets and BSI Financial Services (“Defendants”) from proceeding with a foreclosure sale scheduled for November 6, 2014 on specified real property owned by Plaintiffs.

After review of the moving papers, and supplemental pleadings and declarations filed by both parties, the Court finds that Plaintiff has failed to establish a reasonable probability of prevailing on the merits in the case.  See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.  The application for preliminary injunction is DENIED for the following reasons.

First, Plaintiff challenges the validity of various transfers of the Deed of Trust and substitution of Trustees on the loans against the property.  Plaintiff argues that the current holder of the deed of trust, CAM VII, does not hold a beneficiary interest based on allegedly invalid assignments of the deed of trust (“DOT”).  It is difficult to follow Plaintiff’s arguments; however, Plaintiff argues that Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4^th 1149, Kan v. Guild Mortgage Co. (Sept. 25, 2014) 2014 Cal. App. LEXIS 925 *1, Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4^th 433, Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4^th 1481, Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4^th 256, Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4^th 497, Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4^th 1495, Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4^th 49, and Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4^th 75 do not apply to notices recorded after January 1, 2013.  However, numerous courts have echoed Gomes’ rationale, even with notices recorded after January 1, 2013.  (See Maomanivong v. Nat’l City Mortg. Co. (N.D.Cal. Sept. 15, 2014) 2014 U.S. Dist. LEXIS 130513 *1, *13-*14 (NOTS recorded October 1, 2013, quoting Gomes, stating that there is no claim that “provide[s] for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized”); see also St. Clair v. JP Morgan Chase Bank, N.A. (E.D. Cal. Sept. 18, 2014) 2014 U.S. Dist. LEXIS 132054 *1, *11-*16 (NOTS recorded on June 20, 2013, stating that “a plaintiff lacks standing to challenge the process in which his mortgage was securitized because he is not a party to the relevant agreements”); see also Tavares v. Nationstar Mortg. LLC (S.D. Cal. July 14, 2014) 2014 U.S. Dist. LEXIS 95537 (NOTS recorded on November 15, 2013, stating that “California’s nonjudicial foreclosure scheme does not ‘provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized’”, quoting Gomes); see also Morales v. Bank of N.Y. Mellon (N.D. Cal. July 30, 2014) 2014 U.S. Dist. LEXIS 105367 *1, *10-*11 (NOTS received on January 16, 2013, stating that “courts in this district follow the majority approach set forth in Jenkins v. JP Morgan Chase Bank, N.A., which held that ‘as an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, a plaintiff lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, relating to such transactions).)

Plaintiff does not present any case authority to support his position that the listed cases are inapplicable to notices recorded after January 1, 2013, and the weight of authority holds otherwise.  Further, as Defendants argue, Plaintiff does not provide evidence of how Plaintiff suffered any actual prejudice as a result of the alleged wrongs from the securitization process.   See Siliga v. Mortgage Electronic Registration Systems, Inc., supra, 219 Cal.App.4^th 75.

Plaintiff does not have standing to challenge the validity of the assignments of the note, deed of trust, and the substitutions of trustee on the subject loan.  Defendants have presented sufficient documentation of the recorded assignments of the DOT to support their claim that the CAM VII Trust owns the loan and has the right and ability to foreclose.

Plaintiff also argues that HUD regulations applicable to this loan were violated because he was not offered a face to face meeting.  However, as argued by Defendants, the HUD regulations in question do not require a face to face meeting where the Defendants are more than 200 miles (as is the case here) from the subject property.  See 24 C.F.R. sec. 203.604(c)(2).

Defendants have provided sufficient evidence, not disputed by Plaintiff, that Plaintiff defaulted on the loan and remains in default, and Defendants have followed all required procedures to proceed with the non-judicial foreclosure on the property.  Plaintiff’s request for preliminary injunction is DENIED.