2015-00185029-CU-OR

Deutsche Bank National Trust Co. Americas vs. Lena Hu

Nature of Proceeding: Motion for Summary Judgment

Filed By: Hennessee, Ashley

Plaintiff Deutsche Bank Trust Company Americas, as Trustees for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QH6 FHA/VA/RHS: Nationstar Mortgage LLC (“Plaintiff”) motion for summary judgment is granted.

Plaintiff’s request for judicial notice is granted.

In this action Plaintiff alleges causes of action against Defendant Gregory Hu and others for declaratory relief, cancellation of instrument, and quiet title seeking to remove an allegedly fraudulently recorded reconveyance of its deed of trust. Plaintiff seeks to have the reconveyance cancelled along with a declaration that Plaintiff’s deed of trust is a valid and enforceable instrument. Plaintiff moves for summary judgment on the basis that the reconveyance is void and subject to cancellation. Defendant Gregory Hu is the only active defendant in this action as the remaining defendants are either in default or have been dismissed.

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991)

231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An

issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Next, the Court is required to determine whether the moving party has met its burden. Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (See, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 843.)

Plaintiff’s separate statement includes the following. On May 22, 2007, Defendants Lena and Gregory Hu executed a Deed of Trust in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary which was recorded on May 31, 2007. On or about May 12, 201, MERS assigned the Deed of Trust to Aurora Loan Services, LLC. On or about June 25, 2014, Aurora assigned the Deed of Trust to Plaintiff. Plaintiff is the lawful owner and beneficial interest holder under the Deed of Trust. On April 22, 2011, a Substitution of Trustee and Full Reconveyance of Plaintiff’s Deed of Trust was recorded with the Sacramento County Recorder’s Office. The Reconveyance was not authorized by Plaintiff’s predecessor in interest, Aurora. The debt secured by Plaintiff’s Deed of Trust has not been satisfied. Plaintiff and its predecessors have never received payoff funds and have never authorized a Reconveyance of the Deed of Trust. Defendant’s loan is in default as he failed to make payment that was due January 1, 2011. Defendant admits to having a third party “handle the whole affair and hir[ing] someone to complete the tasks on [his] account.” Defendant admits that he recorded the Reconveyance.

Here the Court finds that Plaintiff has demonstrated that the Reconveyance of the Deed of Trust was unauthorized and should be cancelled and that its Deed of Trust is valid and enforceable. A written instrument, for which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may upon his application, be ordered to be cancelled. (Civ. Code § 3412.). The evidence demonstrates the apparent validity of the Reconveyance and the facts showing its invalidity. (Hughes v. Beekley (1927) 85 Cal.App. 313, 316.). The Reconveyance appears to be valid as it was executed by a person purporting to be Aurora’s agent. (RJN Exhs. 2, 4.) However, the evidence demonstrated that Mr. Hu recorded the Reconveyance without authorization from the beneficiary as the underlying debt was not repaid and the loan was in default. (UMF 1, 5, 6, 8-10.) Mr. Hu admits recording the Reconveyance and claimed that he submitted payoff funds to Plaintiff’s predecessor Aurora, but there is no evidence that Aurora received and applied the payoff funds to Mr. Hu’s account and indeed the evidence shows that Plaintiff and Aurora never received the payoff funds. (UMF 5, 10; Hennessee Decl. Exhs. A, B [RFAs 2, 4, 6].) Thus the evidence shows that the underlying debt was never satisfied and the Reconveyance was not authorized. Plaintiff has established that it is entitled to a declaratory judgment cancelling the

Reconveyance and quieting title to the Deed of Trust declaring the Deed of Trust to be a valid and enforceable security instrument against the Subject Property as of May 31, 2007 to present.

Plaintiff’s evidence is sufficient to shift to Defendant the burden of demonstrating the existence of a triable issue of material fact. Defendant has failed to meet this burden. To that end, Defendant’s opposition papers fail to comply with the California Rules of Court. Indeed, Defendant failed to file a responsive separate statement that complies with CCP § 437c(b)(3) and CRC Rule 3.1350. “The failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (CCP § 437c(b)(3).) A self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247; see also Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.)

More critically, Defendant has not submitted any evidence in support of the opposition instead only arguing that Plaintiff’s assertions are “false” and that he has paid off the subject loan. He indicates that he will bring a cashier’s check reflecting the same to the hearing. The time to submit evidence was in opposition to the motion. He also refers to two letters that he sent to Aurora in 2011 in which he apparently demanded that Aurora respond and if it did not that Aurora would agree that an individual designated by Defendant was authorized to sign and release the subject lien on the Subject Property. He argues that Aurora did not respond so the Recoveyance was executed in compliance with the Uniform Commercial Code. This argument is not supported by any evidence nor any legal authority. The instant action is for cancellation of an instrument and quiet title and the Uniform Commercial Code has no application. No authority is cited for the proposition that a mortgagee can send a letter to the mortgagor pursuant to the UCC and state that the failure by the mortgagor to respond acts as an authorization for the mortgagee to release the mortgagee’s lien and execute a reconveyance.

Defendant, as he has previously in numerous motions to dismiss which have been denied, argues that Plaintiff has not provided the original promissory note. There is no requirement under California law.

Defendant also argues in a conclusory manner that Plaintiff’s declarations are insufficient because the declarants failed to aver that they have personal knowledge of the facts set forth in their declarations and that they would competently testify if called to testify as a witness. Defendant is incorrect as each declaration contains such a statement. Moreover, Defendant has not submitted any evidentiary objections.

In short, Defendant has submitted no evidence and has failed entirely to raise any triable issue of material fact. Having failed to demonstrate the existence of a triable issue of material fact, Plaintiff is entitled to judgment as a matter of law.

The motion for summary judgment is granted.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Plaintiff’s counsel is directed to immediately provide notice to Defendant of the tentative ruling system and to be available at the hearing, in

person or by telephone, in the event Defendant appears without following the procedures set forth in Local Rule 1.06(B).

The Court will sign the proposed order.