The Bank of New York Mellon v. Marguerite Deselms ( 2021 )

FILED
NOT FOR PUBLICATION
NOV 18 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE BANK OF NEW YORK MELLON, No. 20-55993
FKA The Bank of New York, as Trustee
for the Certificate Holders CWALT, Inc. D.C. No.
Alternative Loan Trust 2006-OC8 5:18-cv-01044-PSG-MRW
Mortgage Pass-Through Certificates,
Series 2006-OC8,
MEMORANDUM*
Plaintiff-counter-
defendant-Appellee,
v.
ALAN DAVID TIKAL, as Trustee of the
KATN Revocable Living Trust; CAA,
INC., a Nevada corporation,
Defendants,
and
MARGUERITE DESELMS, individually,
and as Trustee of The Circle Road
Revocable Living Trust Dated November
11, 2010,
Defendant-counter-claimant-
Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding
Submitted November 16, 2021**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and NGUYEN, Circuit Judges.
Marguerite DeSelms appeals pro se from the district court’s judgment in
favor of Bank of New York Mellon (BONY) on BONY’s claims for cancellation
of a 2010 Substitution of Trustee and Full Reconveyance document, and for a
declaration that a 2006 deed of trust (the First Deed of Trust) was valid and
reflected BONY’s senior lien on a property DeSelms had purchased in San
Bernardino, California (the Property). DeSelms also appeals the district court’s
award of attorney’s fees to BONY.1 BONY brought this action in its capacity as
trustee for the certificateholders of CWALT, Inc., Alternative Loan Trust 2006-
OC8, Mortgage Pass-Through Certificates, Series 2006-OC8. We affirm.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1
The district court granted summary judgment to BONY on DeSelms’
counterclaims as well, but DeSelms has not challenged that aspect of the judgment
on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
2
Reviewing de novo,2 we conclude that the district court did not err in
entering summary judgment on BONY’s claims. Although DeSelms contended
that the 2010 Substitution of Trustee and Full Reconveyance extinguished
BONY’s interest in the Property, there was no genuine issue of material fact that
BONY was entitled to cancellation of that document. See id. BONY presented
evidence that the document was invalid because: it stated that the KATN Trust was
the beneficiary of the First Deed of Trust, even though the KATN Trust had no
interest therein; and BONY suffered pecuniary loss because it was unable to
foreclose on the Property. See Cal. Civ. Code §§ 3412–13; U.S. Bank Nat’l Ass’n
v. Naifeh, 205 Cal. Rptr. 3d 120, 128 (Ct. App. 2016). For the same reason, the
district court correctly determined that declaratory judgment was appropriate
because there was a substantial controversy between the parties regarding the
validity of the First Deed of Trust, and the evidence showed that document was
valid. See Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 272–73, 61 S. Ct.
510, 512, 85 L. Ed. 826 (1941).
None of DeSelms’ arguments to the contrary are persuasive. BONY had
standing to challenge the 2010 Substitution of Trustee and Full Reconveyance
2
Evon v. Law Offs. of Sidney Mickell, 688 F.3d 1015, 1023–24 (9th Cir.
2012).
3
because that document purported to extinguish BONY’s interest in the First Deed
of Trust. See Cal. Civ. Code § 3412; cf. Yhudai v. IMPAC Funding Corp., 205 Cal.
Rptr. 3d 680, 683 (Ct. App. 2016). BONY was the proper party3 to bring this
action, was not required to register in California,4 and provided sufficient evidence
of its existence. DeSelms’ bare assertion that BONY’s documents were forged
does not create a genuine issue of material fact in that regard. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S. Ct. 1348,
1356, 89 L. Ed. 2d 538 (1986). Moreover, the district court correctly determined
that DeSelms presented no competent evidence supporting her contentions
regarding the purported separation of the note from the deed of trust, the purported
assignment of the loan into a closed trust, and the purported payment of her
mortgage debt from other sources. See id.We further conclude that the district court did not abuse its discretion in
awarding BONY $77,777.50 in attorney’s fees pursuant to Federal Rule of Civil
Procedure 54(d)(2). See Stetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016);
see also United States v. Hinkson, 585 F.3d 1247, 1261–63 (9th Cir. 2009) (en
banc); MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1281 (9th Cir.
3
See Moeller v. Superior Court, 947 P.2d 279, 283 n.3 (Cal. 1997); Fed. R.
Civ. P. 17(b)(3).
4
See Cal. Corp. Code § 191(d); see also id. § 2105(a).
4
1999). The valid First Deed of Trust explicitly provides for attorney’s fees in these
circumstances,5 and the district court’s lodestar calculation was well-supported by
the record. See Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1028–29 (9th
Cir. 2000).
AFFIRMED.
5
See Port of Stockton v. W. Bulk Carrier KS, 371 F.3d 1119, 1121 (9th Cir.
2004); Cal. Civ. Proc. Code § 1021.
5