2013-00146313-CU-OR

Sarah Garlick vs. Deutsche Bank National Trustee Company

Nature of Proceeding: Order to Show Cause

Filed By: Estavillo, Jason W.

Plaintiff’s application for Preliminary Injunction to “stay execution of the judgment of
possession” pending the outcome of this action is denied.

Both parties’ requests for judicial notice are granted. (See Poseidon Devel., Inc. v.
Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-18; see also
Startford Irrig. Dist. v. Empire Water Co. (1941) 44 Cal.App.2d 61, 68 [recorded land
documents, not contracts, are the subject of judicial notice on demurrer].) The court,
however, does not accept the truth of any facts within the judicially noticed documents
except to the extent such facts are beyond reasonable dispute. (See Poseidon Devel.,
152 Cal.App.4th at 1117-18.) see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198
Cal.App.4th 256, 265 (“[A] court may take judicial notice of the fact of a document’s
recordation, the date the document was recorded and executed, the parties to the
transaction reflected in the recorded document, and the document’s legally operative
language, assuming there is no genuine dispute regarding the document’s
authenticity.”) The court does not take judicial notice of the truth of statements made
in the bankruptcy records other than orders of the bankruptcy court.

Plaintiff defaulted on her loan and a foreclosure sale occurred on April 12, 2012.
Subsequently, defendant Deutsche Bank obtained a judgment in unlawful detainer
and the judgment in the UD action was satisfied on November 30, 2012 when the
plaintiff was locked-out of the subject property.

Plaintiff contends that based on the recent case of Glaski v Bank of America (2013)
218 Cal.App.4th 1079, the alleged assignment of the deed of trust to the securitized
trust was void because the date of the assignment was after the date the trust had
closed, and therefore void under the law of trust of the State of New York. Therefore,
plaintiff contends that because the assignment was void, so was the foreclosure sale.

Plaintiff has filed for Chapter 11 bankruptcy. On September 4, 2013 the bankruptcy
court lifted the automatic stay for purposes of permitting defendant to enforce its pre-
petition unlawful detainer judgment.” Plaintiff’s exhibit A.

The application for preliminary injunction is denied because plaintiff has not shown the
probability that she will prevail on the merits. This case is distinguishable from Glaski,
which was decided at the pleading stage under the “lenient” pleading rules; nor does
Glaski address the situation where the Sheriff has completed a lock-out pursuant to
the judgment in the UD action.

In this case, plaintiff’s request that the Court “stay” the unlawful detainer judgment is
improper. The unlawful detainer judgment was satisfied on November 30, 2012 when
the Sheriff competed a lock-out at the Subject Property; accordingly, since the
Judgment has already been satisfied, plaintiff cannot demonstrate any irreparable
harm justifying the imposition of a preliminary injunction.

An injunction may be obtained to prevent irreparable injury, (Code Civ, Proc, § 526(a)
(2).) In determining whether to issue a preliminary injunction, the trial court considers
two factors: (1) the interim harm to the plaintiff if the injunction is denied compared to
the harm to the defendant if the injunction is granted, and (2) the likelihood that the
plaintiff will prevail on the merits at trial. (King v. Meese (1987) 43 Cal.3d 1217, 1226.)
An injunction should not issue where there is no possibility of success even though its
issuance might prevent irreparable harm. (Choice-in-Education League v. Los Angeles
Unified School Dist. (1993) 17 Cal,App.4th 415, 422.)

A plaintiff seeking a preliminary injunction bears the burden of presenting facts which
show a reasonable probability that he will succeed on the merits, (Fleishman v. Super.
Ct. (2002) 102 Cal. App,4th 350, 356.) If Plaintiff cannot present admissible evidence
to support the merits of his claim for a preliminary injunction, he has failed lo meet his
burden of proof and the issuance of a
preliminary injunction should be denied. (Code Civ. Proc, § 527(a); Bank of America v.
Williams (1948) 89 Cal,App.2d 21, 29.)

The only fact presented in support of her requested relief is the alleged void
assignment of the note to the Trust, on the ground the assignment occurred after the
trust was closed, and therefore the assignment was void under New York Trust law.
(See Glaski, supra, at page 1084.)

The court in Glaski noted the following possibilities if the loan was not validly
transferred to the Trust: (1) JP Morgan acquired the Glaski deed of trust when it
purchased WaMu assets from the FDIC or (2) JP Morgan might have acquired the
right to service the loans held by the WaMu Securitized Trust. (Glaski, at 1085)
Another possibility was that “The true holder of the note and deed of trust could not be
determined at this stage of the pleadings.” (Id, at note 4). Therefore, it was
conceivable in Glaski that the party who was alleged to be the beneficiary, Bank of
America, was not the beneficiary.

Normally, a borrower does not have standing to challenge an assignment of his or her
loan, unless the purported defect would render the assignment void. (Conlin v.
Mortgage Electronic Registration Systems, Inc. (2013) 714 F.3d 355, 361.) The recent
decision of Glaski v. Bank of America held that allegations of post-closing date
attempts to transfer a loan into a securitized trust are sufficient to state a basis for
concluding the attempted transfer is void, thus giving a borrower standing to challenge said assignments. (Glaski v. Bank of Am. Natl. Ass ‘n
(2013) 218 Cal.App.4th 1079, 1082.)

In the instant case, on or about January 8, 2007, Plaintiff obtained the subject
$572,000.00 loan (“Loan”) from Bank United, FSB (“BU FSB”) secured by a Deed of
Trust in favor of BU FSB. On February 28, 2007, BU FSB, executed a Corporation
Assignment of Real Instate Mortgage (“First Assignment”) to Central Mortgage
Company D/B/A Central Mortgage Loan Servicing Company (“CMC”), transferring the
rights, title and interest under the Deed of Trust to CMC. In March of 2007, BU FSB
“transferred” the Loan to Greenwich Capital (“Greenwich”) (Compl. para.25).
Greenwich allegedly conveyed the Loan as an asset to the HarborView 2007-2 Trust
(“Trust”) pursuant to a pooling and servicing agreement. However, regardless of the
“transfer” to Greenwich for purposes of conveying the Loan as an asset to the Trust,
BU FSB’s beneficial interest in the Loan under the Deed of Trust was transferred to
CMC pursuant to the recorded First Assignment.

Unlike the situation in Glaski, the First Assignment is from the originating lender, BU
FSB, to CMC, and is dated February 28, 2007, a date before the Trust’s closing date.
Accordingly, this case is distinguishable from Glaski in that Plaintiff has failed to offer
evidence that the Loan was transferred to the securitized Trust after the closing date;
notably, in Glaski, the fact that the first assignment noted JPMorgan as the assignor,
led to the conclusion that Glaski’s loan was included in WaMu’s assets that were
purchased in 2008, almost three years after the WaMu Securitized Trust’s closing
date. Here, unlike the situation in Glaski, Plaintiff admits that her loan was not included
in BU FSB’s assets in 2009 when the FDIC was appointed as receiver and BU N.A.
acquired BU FSB’s assets. (Ex. C.) Further, Plaintiff admits that the Loan was
“transferred” to Greenwich in March of 2007. Considering that Greenwich was the
Depositor who conveyed the Loan asset to the Trust pursuant to a pooling and
servicing agreement, Plaintiff has failed to assert or establish by way of competent
evidence an attempt to transfer the Loan to the securitized Trust after the Trust’s
closing date. As such, Plaintiff has not alleged a defect that would render either
Assignment void and thus as a third party to the Assignments, she has no standing to
challenge the validity of the transfer. This absence of fact is relevant to plaintiff’s
burden of presenting facts which show a reasonable probability that she will succeed
on the merits.

Moreover, this Court cannot stay enforcement of a judgment issued by another judge.
On August 1,2012, Deutsche Bank commenced an Unlawful Detainer action against
Plaintiff, with trial set for October 18, 2012. (RJN Ex. 1.) However, on October 11,
2012, Plaintiff filed a state court complaint against Deutsche Bank, Old Republic, and
CMC, in Sacramento Superior Court (“State Court Complaint”), concurrently moving,
ex parte, for a Temporary Restraining Order to enjoin the Unlawful Detainer trial. (RJN
Exs, J and K,) The Court denied Plaintiffs ex parte application and the unlawful
detainer trial went forward resulting in an entry of judgment for possession in favor of
Deutsche Bank (“Unlawful Detainer Judgment”), (RJN Exs L and M,) The Unlawful
Detainer Judgment was satisfied on November 30, 2012, when the Sheriff completed a
lock-out of Plaintiff from the Subject Property. The Subject Property is currently vacant.
Plaintiff dismissed her State Court Complaint on March 28, 2013.

The proper procedure for staying enforcement of an unlawful detainer judgment
requires filing an appeal and directing a petition for stay of the judgment pending
appeal to the judge before whom it was rendered. (Code Civ. Proc. § 1176.) If the stay
is denied by the trial court [that rendered the unlawful detainer judgment], then the
defendant may file a petition for extraordinary writ with the appropriate
appeals court. (Id.) Here, Plaintiff has requested that the instant Court, as opposed to
the trial court that entered the Unlawful Detainer Judgment, stay enforcement of the
Unlawful Detainer Judgment, Plaintiffs request for a Preliminary Injunction staying
enforcement of the Unlawful Detainer Judgment is thus barred by Code of Civil
Procedure section 1176, which requires that Plaintiff first direct a petition for stay of the
judgment to the judge before whom it was rendered and if the stay is denied by the
trial court that rendered the unlawful detainer judgment, thereafter file a petition for
extraordinary writ with the appropriate appeals court.

Also, even if Plaintiff could establish a defect in the non-judicial foreclosure, a
defaulting borrower may not seek to invalidate a completed sale based on procedural
irregularity, unless the borrower demonstrates that the irregularity caused substantial
prejudice. (Knapp v. Doherty (2004) 123 C.a!,App,4th 76, 92-93.) Here, Plaintiff cannot
reasonably argue that any alleged defect in the foreclosure process caused any
prejudice, because there is no logical connection between her failure to cure her
default and the purportedly deficient foreclosure documents. Even if any of the
transfers were invalid, Plaintiff is not the victim of such “invalid transfers” because her
obligations under the Note remained unchanged. (Jenkins v. JP Morgan Chase Bank
N.A. (2013) 216 Cal.App.4″‘ 497, 510.) The only party who could be potentially
harmed by the invalid transfer is the party who purchased the property at the
foreclosure sale, who could be subject to a claim by a third party “true beneficiary.”

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.