Brown v. Deutsche Bank National Trust CA2/7 ( 2024 )

Filed 10/3/24 Brown v. Deutsche Bank National Trust CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CHERIE BROWN, B324911
Plaintiff and Appellant, (Los Angeles County Super. Ct.
No. BC475181)
v.
DEUTSCHE BANK NATIONAL
TRUST CO., as Trustee, etc.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Malcolm H. Mackey, Judge. Affirmed.
JDR Law Inc. and John D. Rowell for Plaintiff and
Appellant.
Kutak Rock, Steven M. Dailey and Jennifer L. Andrews for
Defendant and Respondent.
INTRODUCTION
In 2007 Cherie Brown purchased a home from Youval Zive
and executed a promissory note in favor of Zive secured by a deed
of trust. The principal amount of the promissory note included
the balance due on two underlying promissory notes executed by
Zive in favor of Washington Mutual Bank and secured by deeds of
trust on the property. In 2011 Zive foreclosed on the property,
and the property was sold at a trustee’s sale.
Brown filed this action against Zive and others for fraud,
wrongful foreclosure, and quiet title. She asserted one cause of
action for quiet title against Deutsche Bank Trust Company, the
trustee for a securitized trust into which one of the underlying
Washington Mutual loans was transferred. Brown argues the
trial court erred in granting Deutsche Bank’s motion for
summary judgment and denying her request for a continuance
under Code of Civil Procedure section 437c, subdivision (h).1 We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Zive Obtains a Loan From Washington Mutual
In March 2006 Zive executed a promissory note in the
amount of $980,000 in favor of Washington Mutual secured by a
deed of trust on property he owned in Los Angeles (the
Washington Mutual-Zive loan). After the loan closed,
Washington Mutual transferred the loan to the WaMu Pass-
Through Certificates Series 2006-AR5 Trust (the Trust),
1 Undesignated statutory references are to the Code of Civil
Procedure.
2
a securitized trust, pursuant to a pooling and servicing
agreement that named Deutsche Bank as trustee.2
B. Brown Purchases the Property From Zive
In July 2006 Brown became interested in purchasing the
property from Zive. Zive told Brown that he was an attorney and
that he would prepare all the necessary sales and financing
documents for the transaction. Zive said the purchase “would be
financed by cash payments by Brown of $155,000,” a “‘first loan’”
by Washington Mutual in the amount of $980,000, and a loan
from Zive for $72,500 (the Zive-Brown loan). Brown and Zive
signed a purchase agreement in which Brown agreed to buy the
property for a little more than $1.2 million.
In November 2006 Brown executed a promissory note in
favor of Zive for approximately $1 million (the Zive-Brown note).
The promissory note provided for monthly payments of $3,030 “or
more,” a $30,000 principal payment due on December 20, 2006,
and a maturity date of March 1, 2008. The promissory note
2 “The mortgage securitization process has been concisely
described as follows: ‘To raise funds for new mortgages, a
mortgage lender sells pools of mortgages into trusts created to
receive the stream of interest and principal payments from the
mortgage borrowers. The right to receive trust income is
parceled into certificates and sold to investors, called
certificateholders. The trustee hires a mortgage servicer to
administer the mortgages by enforcing the mortgage terms and
administering the payments. The terms of the securitization
trusts as well as the rights, duties, and obligations of the trustee,
seller, and servicer are set forth in a Pooling and Servicing
Agreement (“PSA”).’” (Yvanova v. New Century Mortgage Corp.
(2016) 62 Cal.4th 919, 930, fn. 5.)
3
stated the principal amount included the unpaid balance on two
underlying promissory notes (in the aggregate amount of
approximately $1 million) executed by Zive in favor of
Washington Mutual and secured by deeds of trust on the
property. In January 2007 Zive recorded two documents with the
county recorder’s office: a grant deed transferring the property to
Brown and a deed of trust (the Zive-Brown deed of trust) securing
the Zive-Brown note. In March 2008 Zive and Brown executed an
addendum to the Zive-Brown note extending the maturity date to
March 1, 2010, conditioned on Brown paying $30,000 in quarterly
installments.
C. JP Morgan Chase Bank Acquires the Assets of
Washington Mutual
In September 2008 Washington Mutual failed, and the
Office of Thrift Supervision appointed the Federal Deposit
Insurance Corporation (FDIC) as receiver. Under a purchase and
assumption agreement with the FDIC, JPMorgan Chase Bank
purchased Washington Mutual’s assets and assumed “all
mortgage servicing rights and obligations.” In June 2009
JPMorgan Chase assigned the Washington Mutual-Zive deed of
trust to Deutsche Bank as trustee for the Trust.
D. Zive Forecloses on the Zive-Brown Deed of Trust
Brown alleged that she made payments to Zive on the Zive-
Brown note by delivering to him checks made payable to
Washington Mutual and JPMorgan Chase, but that after
January 1, 2009 Zive did not deliver the checks to the lenders. In
June 2009 the trustee on the Washington Mutual-Zive deed of
trust recorded a notice of default that stated Zive stopped making
4
payments on the loan in January 2009. In September 2009 the
trustee recorded a notice of trustee’s sale.
In 2011 Zive initiated nonjudicial foreclosure proceedings
against Brown on the Zive-Brown deed of trust. A notice of
default was recorded in January 2011, and a notice of trustee’s
sale was recorded in July 2011. In September 2011 Zive assigned
his rights in the Zive-Brown deed of trust to Phoenix Realty
Investments, which subsequently purchased the property at a
trustee’s sale. Phoenix Realty filed an unlawful detainer action
against Brown, obtained a judgment, and evicted her from the
property.
E. Brown Files This Action
In December 2011 Brown filed this action against Zive,
related parties, and Doe defendants for fraud, wrongful
foreclosure, and quiet title. In 2015 Brown amended her
complaint to substitute Deutsche Bank as one of the Doe
defendants. In the operative second amended complaint, the only
cause of action Brown asserted against Deutsche Bank was for
quiet title.
In 2019 the trial court dismissed the action pursuant to
sections 583.310 and 583.360 because Brown failed to bring the
case to trial within five years. We reversed, holding the trial
court should have excluded from its calculation of the five-year
period the amount of time an automatic stay was in effect while
one of the defendants was in bankruptcy. (Brown v. Zive
(Nov. 16, 2021, B300415) [nonpub. opn.].)
5
F. The Trial Court Grants Deutsche Bank’s Motion for
Summary Judgment
In 2022 Deutsche Bank moved for summary judgment.
Deutsche Bank argued the Washington Mutual-Zive deed of trust
took priority over Brown’s interest in the property because the
deed of trust was recorded nine months before the grant deed to
Brown and because Brown had actual notice of the
Washington Mutual-Zive deed of trust. Deutsche Bank argued it
was authorized to enforce the Washington Mutual-Zive deed of
trust as the trustee of the Trust and as the holder of the original
Washington Mutual-Zive note.
In support of its motion Deutsche Bank submitted the
declaration of Sherry Benight, a document control officer at
Select Portfolio Servicing (SPS). Benight stated that SPS was
“the authorized loan servicer for Deutsche Bank National Trust
Company, as Trustee for WaMu Pass-Through Certificates Series
2006-AR5 Trust,” and that the Trust owned the Washington
Mutual-Zive loan. Benight said she was authorized to provide
the declaration on behalf of Deutsche Bank pursuant to the
servicing agreement between SPS and Deutsche Bank. She
stated the Trust had owned the Washington Mutual-Zive loan,
and Deutsche Bank had been the trustee for the Trust, since
May 2006. Benight stated that Washington Mutual was the
original servicer of the Washington Mutual-Zive loan, that
JPMorgan Chase became the servicer at some point, and that
SPS became the servicer in August 2013.
Benight stated that SPS maintained “loan records” and
“collateral files” for loans it serviced and that SPS was “in
possession of the collateral file” for the Washington Mutual-Zive
loan, which included “copies of the documents evidencing the
6
origination of the Loan and the subsequent assignment and
transfer thereof.” Benight said SPS was “in physical possession
of the . . . original ‘wet-ink’ Note for the Loan, which SPS
maintains on behalf of Deutsche Bank.” She stated the original
note in SPS’s file contained the “original signature of Zive” and
“an endorsement stamp, from Washington Mutual, endorsing the
Note in blank without recourse.” Deutsche Bank attached copies
of the Washington Mutual-Zive note and deed of trust as exhibits
to Benight’s declaration.
Benight stated Washington Mutual transferred its interest
in the loan to a subsidiary, WaMu Asset Acceptance Corporation,
which transferred the loan to the Trust. A copy of the pooling
and servicing agreement for the Trust was attached as an exhibit
to Benight’s declaration. Also attached was a document Benight
described as the “mortgage schedule” for the pooling and
servicing agreement. Benight stated the mortgage schedule
showed the Washington Mutual-Zive loan was “one of the loans
transferred into the Trust in advance of the Closing Date for the
Trust.” Deutsche Bank also submitted excerpts of Benight’s
deposition testimony.
Deutsche Bank asked the court to take judicial notice of
eight documents, including a declaration by Zive, the order of the
Office of Thrift Supervision appointing the FDIC as receiver of
Washington Mutual, the purchase and assumption agreement by
which JPMorgan Chase purchased Washington Mutual’s assets,
and four documents recorded with the county recorder’s office.
In opposition to the motion, Brown argued Deutsche Bank
did not meet its initial burden to show the Trust owned the
Washington Mutual-Zive note and deed of trust. Brown objected
to Benight’s declaration on the grounds Benight lacked personal
7
knowledge and could not authenticate the documents attached to
her declaration. Brown also opposed some of Deutsche Bank’s
requests for judicial notice. Brown argued that, because
Deutsche Bank did not submit any admissible evidence
Washington Mutual transferred the Washington Mutual-Zive
note to the Trust before the Trust’s cut-off date of May 1, 2006,
the assignment to the Trust was “a nullity.” Brown asked the
court to continue or deny the motion under section 437c,
subdivision (h), to allow her to take an additional deposition of
Deutsche Bank regarding the “transfer/delivery/assignment” of
the Washington Mutual-Zive note and deed of trust to the Trust.
Brown submitted her declaration, the declaration of her
attorney, and excerpts from the depositions of Deutsche Bank
representatives. Counsel for Brown’s declaration described the
depositions Brown had taken of the Deutsche Bank
representatives and the documents Deutsche Bank had produced
and explained why Brown needed additional discovery.
In reply, Deutsche Bank argued that Brown did not have
standing to challenge the assignment of the deed of trust and
that, even if the deed of trust was not properly assigned to the
Trust, Deutsche Bank could enforce the deed of trust as the
holder of the original Washington Mutual-Zive note. Deutsche
Bank objected to the majority of the declarations by Brown and
her attorney and to the deposition testimony of the Deutsche
Bank representatives.
The court granted Deutsche Bank’s motion for summary
judgment. The court ruled Deutsche Bank was entitled to
summary judgment on Brown’s cause of action for quiet title
because the Washington Mutual-Zive deed of trust “undisputedly
takes priority over [Brown’s] interest” in the property. The court
8
stated that “the interest in the loan was transferred to Deutsche
Bank,” that the Washington Mutual-Zive loan was transferred to
the Trust, that Brown “had actual notice” of the Washington
Mutual-Zive loan “at the time she acquired her interest in the
property,” and that “any interest [Brown] obtained in the
property was subject to this prior recorded lien.”
The court overruled Brown’s objections to Benight’s
declaration3 and the deposition testimony, took judicial notice of
Zive’s declaration and its attachments, and sustained in part and
overruled in part Brown’s objections to Deutsche Bank’s request
for judicial notice of two recorded deeds of trust, the Office of
Thrift Supervision order, and the purchase and assumption
agreement (although the trial court did not indicate what
portions of these documents it judicially noticed). According to
the minute order from the hearing on Deutsche Bank’s motion for
summary judgment, the court admitted into evidence the
Washington Mutual-Zive deed of trust and the pooling and
servicing agreement. The trial court sustained all of Deutsche
Bank’s objections to Brown’s evidence. The court denied Brown’s
request under section 437c, subdivision (h), to continue the
hearing on the motion for summary judgment. The court entered
judgment for Deutsche Bank, and Brown timely appealed.
3 The court stated in its order “Benight’s personal knowledge
is not required because the offered testimony comes from SPS’s
business records and therefore [is] subject to the business records
exception.”
9
DISCUSSION
A. The Trial Court Did Not Prejudicially Err in Ruling
on the Parties’ Evidentiary Objections and Requests
for Judicial Notice
1. Any Error in Overruling Brown’s Objections
Was Harmless
Brown argues the court erred in overruling her objections
to Benight’s declaration. Brown contends Benight lacked
personal knowledge to authenticate the six documents attached
to her declaration because “Benight did not see any of the
documents . . . being made or executed.” Brown also argues the
court erred in ruling the documents were admissible under the
business records exception to the hearsay rule. Any error by the
trial court in ruling on Brown’s objections, however, was
harmless.
“The business records exception requires a foundational
showing that (1) the writing was made in the regular course of
business; (2) at or near the time of the act, condition, or event;
(3) the custodian or other qualified witness testifies to its identity
and mode of preparation; and (4) the sources of information and
mode and method and time of preparation indicate
trustworthiness.” (Conservatorship of S.A. (2018) 25 Cal.App.5th
438, 447; see Evid. Code, § 1271.) Benight’s declaration made
this showing for records her employer, SPS, created and
maintained in its role as servicer of the Trust. But nothing in
Benight’s declaration established she knew how Washington
Mutual prepared or maintained the documents that were
transferred to SPS when SPS became the Trust’s servicer.
10
Therefore, whether reviewed for abuse of discretion or de novo,4
the court erred in ruling several Washington Mutual-generated
documents were admissible under the business records exception
to the hearsay rule.5 (See Midland Funding LLC v. Romero
(2016) 5 Cal.App.5th Supp. 1, 9 [employee of servicer of defaulted
credit card account “had personal knowledge that the documents
were part of [the current account owner’s] business records, but
did not satisfactorily establish those documents were a part of the
prior creditor’s business records under Evidence Code
4 See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 (“we
need not decide generally whether a trial court’s rulings on
evidentiary objections based on papers alone in summary
judgment proceedings are reviewed for abuse of discretion or
reviewed de novo”); Alexander v. Scripps Memorial Hospital
La Jolla (2018) 23 Cal.App.5th 206, 226 (in Reid “the California
Supreme Court expressly declined to reach the issue of the
appropriate standard of review for reviewing a trial court’s
rulings on evidentiary objections made in connection with a
summary judgment motion”).
5 In particular, the court erred in admitting a document
titled “Washington Mutual Mortgage Securities Corp. Legal Loan
Listing as of 06/02/2006,” which Benight stated was an excerpt
from the pooling and servicing agreement’s “Mortgage Schedule.”
Deutsche Bank argued the document, which included information
about a loan that appeared to be the Washington Mutual-Zive
loan, was evidence the Washington Mutual-Zive loan was
transferred to the Trust. But the document was not included in
the pooling and servicing agreement, and Benight’s declaration
was insufficient to admit the document under the business
records exception to the hearsay rule. (See Evid. Code, § 1271,
subds. (a), (b), & (c).)
11
section 1271” because “there was no evidence regarding the mode
of preparation or other information indicating trustworthiness”];
Sierra Managed Asset Plan, LLC. v. Hale (2015) 240 Cal.App.4th
Supp. 1, 9 [declaration by a debt collector’s employee established,
at best, the debt collector “received records originating from [the
creditor] concerning the account in question,” which fell “short of
the foundation necessary for admission of business records as
against a hearsay objection”]; see also People v. Selivanov (2016)
5 Cal.App.5th 726, 775 [witnesses did not establish documents
were admissible under the business records exception because,
although the “witnesses may have been knowledgeable about
[accounting software] and accounting generally, they could not
offer the jury any information about the ‘identity and the mode
of . . . preparation’” of the documents offered as evidence].)
The error, however, was harmless. (See ABM Industries
Overtime Cases (2017) 19 Cal.App.5th 277, 293 [“the ‘judgment of
the trial court may not be reversed on the basis of the erroneous
admission of evidence, unless that error was prejudicial’”]; Grail
Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA,
Inc. (2014) 225 Cal.App.4th 786, 799 [appellant has the burden of
establishing an error in admitting hearsay documents under
Evidence Code section 1271 was prejudicial].) The only document
Deutsche Bank needed from the ones attached to Benight’s
declaration to meet its initial burden on summary judgment
(other than documents that were also attached to Deutche Bank’s
request for judicial notice) was the pooling and servicing
agreement, and that document was admissible as an executed
12
document for its operative facts.6 (See Jazayeri v. Mao (2009)
174 Cal.App.4th 301, 316 [“documents containing operative facts,
such as the words forming an agreement, are not hearsay”]; see
also J&A Mash & Barrel, LLC v. Superior Court (2022)
74 Cal.App.5th 1, 18-19 [“‘Operative facts draw their significance
from having been said or written regardless of whether they are
true, and such facts lie outside the hearsay rule.’”]; People v.
Nelson (2012) 209 Cal.App.4th 698, 711 [error in admitting
documents under Evidence Code section 1271 was harmless
where “there was other competence evidence” of the same fact].)7
6 As we will discuss in section B(2) of the Discussion, the
pooling and servicing agreement—combined with admissible
statements in Benight’s declaration and documents subject to
judicial notice—showed that Brown acquired her interest in the
property subject to the Washington Mutual-Zive deed of trust,
that Deutsche Bank owned the Washington Mutual-Zive note,
and that Deutsche Bank was authorized to enforce the
Washington Mutual-Zive deed of trust.
7 Although Brown argues generally that Benight’s
declaration did not authenticate the documents Deutsche Bank
submitted in support of its motion for summary judgment, she
does not challenge the authenticity of the pooling and servicing
agreement, a copy of which is available on the U.S. Securities and
Exchange Commission’s website. In any event, as we will
discuss, Brown relied on the pooling and servicing agreement to
argue the assignment of the Washington Mutual-Zive deed of
trust was void because it violated terms of the pooling and
servicing agreement. (See Evid. Code, § 1414 [“A writing may be
authenticated by evidence that: [¶] (a) The party against whom it
is offered has at any time admitted its authenticity; or [¶] (b) The
13
2. The Trial Court Did Not Err in Ruling on
Deutsche Bank’s Requests for Judicial Notice
Deutsche Bank asked the trial court to take judicial notice
of eight documents, five of which requests Brown opposed. The
trial court properly took judicial notice of: (1) the order of the
Office of Thrift Supervision appointing the FDIC as receiver of
Washington Mutual; (2) the purchase and assumption agreement
between the FDIC and JPMorgan Chase; (3) the Washington
Mutual-Zive deed of trust; (4) the Zive-Brown deed of trust; and
(5) the grant deed to Brown.8
The Office of Thrift Supervision order and the purchase
and assumption agreement were judicially noticeable under
Evidence Code section 452, subdivisions (c) and (h). (See Scott v.
JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 753
[“the FDIC’s official act of transferring certain WaMu assets (but
not certain liabilities) to JPMorgan as of September 25, 2008—as
evinced by the [Purchase and Assumption] Agreement—is an
official act subject to judicial notice under [Evidence Code]
section 452, subdivision (c),” and the “fact of the P & A
Agreement and the fact of the transfer to JPMorgan of WaMu
assets . . . are not reasonably subject to dispute and are capable
of ready determination” under Evidence Code section 452,
subdivision (h)]; Argueta v. J.P. Morgan Chase (E.D.Cal. 2011)
787 F.Supp.2d 1099, 1103 [taking judicial notice of the purchase
writing has been acted upon as authentic by the party against
whom it is offered.”].)
8 Deutsche Bank requested judicial notice of other
documents, but we address only those documents Deutsche Bank
needed to carry its initial burden.
14
and assumption agreement between the FDIC and JPMorgan
Chase]; Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D.Cal. 2010)
732 F.Supp.2d 952, 959 [taking judicial notice of the purchase
and assumption agreement between the FDIC and JPMorgan
Chase]; Jarvis v. JP Morgan Chase Bank, N.A. (C.D.Cal., July 23,
2010, No. CV 10-4184-GHK (FMOx) 2010 WL 2927276, p. 1
[taking judicial notice of the Office of Thrift Supervision order
appointing the FDIC as receiver of Washington Mutual and the
purchase and assumption agreement between the FDIC and
JPMorgan Chase].)
The two deeds of trust and the grant deed were judicially
noticeable under Evidence Code section 452, subdivisions (c)
and (h). (See Yvanova v. New Century Mortgage Corp. (2016)
62 Cal.4th 919, 924, fn. 1 (Yvanova) [“existence and facial
contents of” a deed of trust, an assignment of the deed of trust,
and other recorded documents are subject to judicial notice under
Evidence Code section 452, subdivisions (c) and (h)]; Fontenot v.
Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 266 [“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 a recorded document, and the
document’s legally operative language”], disapproved on another
ground in Yvanova, at p. 939, fn. 13.)9
9 Brown also argues the trial court erred in overruling her
objections to Benight’s deposition testimony and in sustaining
Deutsche Bank’s objections to her declaration, the declaration of
her attorney, and deposition testimony of Deutsche Bank
representative Mark Syphus. Because we do not rely on
Benight’s deposition testimony in concluding Deutsche Bank met
its initial burden on summary judgment, and because Brown’s
15
B. The Trial Court Did Not Err in Granting Deutsche
Bank’s Motion for Summary Judgment
1. Applicable Law and Standard of Review
“A court may grant a motion for summary judgment only
when all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” (Fajardo v. Dailey (2022)
85 Cal.App.5th 221, 225, internal quotation marks omitted; see
§ 437c, subd. (c); Regents of University of California v. Superior
Court (2018) 4 Cal.5th 607, 618.) “A defendant seeking summary
judgment must show that the plaintiff cannot establish at least
one element of the cause of action.” (Regents, at p. 618; see Long
Beach Memorial Medical Center v. Allstate Ins. Co. (2023)
95 Cal.App.5th 710, 715; Mattei v. Corporate Management
Solutions, Inc. (2020) 52 Cal.App.5th 116, 122.) “‘Only after the
defendant carries that initial burden does the burden shift to the
plaintiff “to show that a triable issue of one or more material
facts exists as to the cause of action . . . .”’” (Fajardo, at
pp. 225-226; see Campbell v. FPI Management, Inc. (2024)
98 Cal.App.5th 1151, 1162.)
“‘“We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law. [Citations.] We ‘liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.’”’” (Fajardo v.
evidence did not raise a triable issue of material fact, we do not
consider whether the trial court erred in ruling on the
admissibility of this evidence.
16
Dailey, supra, 85 Cal.App.5th at p. 226; see Long Beach Memorial
Medical Center v. Allstate Ins. Co., supra, 95 Cal.App.5th at
p. 716.)
2. Deutsche Bank Was Entitled to Summary
Judgment on Brown’s Cause of Action for Quiet
Title
In her only cause of action against Deutsche Bank, Brown
sought to quiet title to the property. “The purpose of a quiet title
action is to finally settle and determine the parties’ conflicting
claims to the property and to obtain a declaration of the interest
of each party.” (City of Santa Maria v. Adam (2012)
211 Cal.App.4th 266, 298; see § 761.020.) To prevail on a cause of
action for quiet title, a plaintiff must “demonstrate paramount
title.” (Mendoza v. JPMorgan Chase Bank, N.A. (2016)
6 Cal.App.5th 802, 821.) The trial court ruled that there were no
triable issues of material fact and that Deutsche Bank was
entitled to judgment on the quiet title cause of action as a matter
of law. The trial court did not err.
Deutsche Bank argued Brown acquired her interest in the
property subject to the Washington Mutual-Zive deed of trust,
which was recorded nine months before the grant deed to Brown.
Deutsche Bank also argued Brown had actual notice of the
Washington Mutual-Zive deed of trust because the Zive-Brown
deed of trust mentioned the Washington Mutual-Zive loan. In
support of those arguments, Deutsche Bank submitted the
17
Washington Mutual-Zive deed of trust, the grant deed to Brown,
and the Zive-Brown deed of trust.10
Deutsche Bank also submitted evidence it owned the
Washington Mutual-Zive note and was authorized to enforce the
Washington Mutual-Zive deed of trust. Benight stated that SPS
was the authorized loan servicer for Deutsche Bank as trustee for
the Trust and that SPS was “in possession of the collateral file”
for the Washington Mutual-Zive loan.11 Benight stated SPS had
in its file the “original ‘wet-ink’ Note” for the Washington
Mutual-Zive loan.12 Deutsche Bank submitted the following
documents showing Deutsche Bank owned the Washington
Mutual-Zive loan as trustee for the Trust: (1) the 2006 pooling
and servicing agreement by which WaMu Asset Acceptance
Corporation conveyed a pool of mortgage loans to the Trust;
(2) the 2008 order of the Office of Thrift Supervision appointing
the FDIC as receiver of Washington Mutual; and (3) the 2008
purchase and assumption agreement by which JPMorgan Chase
purchased Washington Mutual’s assets and assumed “all
10 As discussed, the trial court properly took judicial notice of
the recorded grant deed and the deeds of trust.
11 Brown did not object to these statements.
12 Brown objected to this statement on the grounds that
Benight lacked personal knowledge to make it and that the
statement was inadmissible hearsay. Because Benight had
personal knowledge of the contents of SPS’s files and the note
was not offered for the truth of its contents, the trial court did not
err in overruling these objections.
18
mortgage servicing rights and obligations.”13 From Benight’s
testimony SPS (the servicer for Deutsche Bank as trustee for the
Trust) possessed the file for the Washington Mutual-Zive loan, it
was a reasonable inference that loan was one of the loans
transferred to the Trust. And the documents showed JPMorgan
Chase owned the assets formerly owned by Washington Mutual
(including the Washington-Mutual Zive loan). With this
evidence, Deutsche Bank met its initial burden to show Brown
did not have superior title to Deutsche Bank.
Brown argues Deutsche Bank did not have authority to
enforce the Washington Mutual-Zive deed of trust because the
assignment of that deed of trust to the Trust was void. Brown
contends that the pooling and servicing agreement required
assets to be transferred to the Trust by May 1, 2006 and that the
assignment of the Washington Mutual-Zive deed of trust to the
Trust was not recorded until 2009, “a significant violation of the
Cut-Off date” of the pooling and servicing agreement. Brown also
argues there was no evidence the Washington Mutual-Zive note
was transferred to the Trust before the cutoff date. She contends
Deutsche Bank did not show that Cynthia Riley, who endorsed
the Washington Mutual-Zive note as vice president of
Washington Mutual, did so before the May 2006 cutoff date or
13 As discussed, the pooling and servicing agreement was
admissible for a non-hearsay purpose, and the Office of Thrift
Supervision order and purchase and assumption agreement were
subject to judicial notice. We also take judicial notice of an
assignment of the Washington Mutual-Zive deed of trust by
JPMorgan Chase to Deutsche Bank as trustee for the Trust,
recorded in June 2009, which Deutsche Bank submitted in
connection with its motion for judgment on the pleadings. (See
Evid. Code, §§ 452, subds. (c), (h), 459.)
19
that Riley held the position of vice president of Washington
Mutual in May 2006.
But even if Washington Mutual violated the pooling and
servicing agreement by transferring the Washington Mutual-Zive
deed of trust to the Trust after the cut-off date, the assignment
would be voidable by the Trust’s beneficiary, but not void.
Yvanova, supra, 62 Cal.4th 919, cited by Brown, does not support
her argument. In Yvanova the Supreme Court held “a home loan
borrower has standing to claim a nonjudicial foreclosure was
wrongful because an assignment by which the foreclosing party
purportedly took a beneficial interest in the deed of trust was not
merely voidable but void, depriving the foreclosing party of any
legitimate authority to order a trustee’s sale.” (Id. at pp. 942-
943.) Like Brown, the plaintiff in Yvanova argued the
assignment of a deed of trust to a securitized trust was void
because it occurred after the trust’s closing date. (Id. at p. 925.)
The Supreme Court in Yvanova, however, declined to address
“whether a postclosing date transfer into a . . . securitized trust is
void or merely voidable.” (Id. at p. 931.)
Since Yvanova, California courts have overwhelmingly
concluded that a postclosing assignment of a loan in violation of a
pooling and servicing agreement renders the assignment
voidable, not void, and that a borrower does not have standing to
challenge the assignment. (See, e.g., Kalnoki v. First American
Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43
[“Because any alleged irregularities in the securitization process
are merely voidable at the securitized trust beneficiary’s behest,”
borrowers “lack standing to challenge the Assignment on such
grounds.”]; Mendoza v. JPMorgan Chase Bank, N.A., supra,
6 Cal.App.5th at p. 815 [assignments that “allegedly violate
20
PSA’s and federal law are voidable rather than void, and as a
result, borrowers do not have standing to challenge late transfers
or other defects in the securitization process”]; Yhudai v. IMPAC
Funding Corp. (2016) 1 Cal.App.5th 1252, 1259 [“a postclosing
assignment of a loan to an investment trust that violates the
terms of the trust renders the assignment voidable, not void”];
Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th
808, 815 [an “untimely assignment to a securitized trust made
after the trust’s closing date is . . . merely voidable”].)
In the face of this authority, Brown relies on a single,
decade-old case that reached a different conclusion. In Glaski v.
Bank of America (2013) 218 Cal.App.4th 1079 the court held an
assignment that occurred after the closing date of a pooling and
servicing agreement was void. (Id. at p. 1097.) The court in
Glaski reached that conclusion by relying on an unpublished New
York trial court decision, Wells Fargo Bank, N.A. v. Erobobo
(N.Y.Sup.Ct., Apr. 29, 2013, No. 31648/2009) 2013 WL 1831799(Erobobo I), which a New York appellate court later reversed.
(See Wells Fargo Bank, N.A. v. Erobobo (N.Y.App.Div. 2015)
127 A.D.3d 1176, 1178 [9 N.Y.S.3d 312] (Erobobo II); see
Kalnoki v. First American Trustee Servicing Solutions, LLC,
supra, 8 Cal.App.5th at p. 43 [“The trial court decision upon
which Glaski relied has also since been overturned.”].) The New
York appellate court held a “mortgagor whose loan is owned by a
trust . . . does not have standing to challenge the plaintiff’s
possession or status as assignee of the note and mortgage based
on purported noncompliance with certain provisions of the
[pooling and servicing agreement].” (Erobobo II, at p. 1178.)
Federal courts have uniformly rejected the reasoning of Erobobo I
(see Yhudai v. IMPAC Funding Corp., supra, 1 Cal.App.5th at
21
p. 1259 [Erobobo I “has not only been reversed, but soundly and
overwhelmingly rejected”]), and California courts have
consistently rejected the holding in Glaski (see Mendoza v.
JPMorgan Chase Bank, N.A., supra, 6 Cal.App.5th at p. 814
[“We can find no state or federal cases to support the Glaski
analysis and will follow the federal lead in rejecting this minority
holding on the issue presented in this case.”]).14
In her reply brief Brown attempts to distinguish the
decisions rejecting Glaski by arguing those cases “all involved
trusts formed under New York law” and suggesting “the law of
California should apply.” But Brown provides no authority
suggesting a late assignment would be void rather than voidable
under California law or Delaware law, which governs the pooling
and servicing agreement according to its choice of law provision.
Therefore, she has forfeited the argument. (See Mireskandari v.
Gallagher (2020) 59 Cal.App.5th 346, 371 [plaintiff forfeited an
argument by not providing “any legal argument or citation to
authority”]; Ewald v. Nationstar Mortgage, LLC (2017)
14 Brown states Glaski was “cited by our Supreme Court in
Yvanova with approval on the issue of standing.” It is true the
Supreme Court agreed with the Glaski court’s “view that ‘a
borrower can challenge an assignment of his or her note and deed
of trust if the defect asserted would void the assignment’ not
merely render it voidable.” (Yvanova, supra, 62 Cal.4th at
p. 931.) As stated, however, the Supreme Court in Yvanova
“express[ed] no opinion” on “the question of whether a postclosing
date transfer into a New York securitized trust is void or merely
voidable.” (Ibid.)
22
13 Cal.App.5th 947, 948 [“failure to provide legal authorities to
support arguments forfeits contentions of error”].)15
Brown also relies on Sciarratta v. U.S. Bank National Assn.
(2016) 247 Cal.App.4th 552, but that case is distinguishable. In
Sciarratta the original lender, after assigning a promissory note
and deed of trust to a bank, purported to assign the same note
and deed of trust to a second bank seven months later, and the
second bank foreclosed on the deed of trust. (Id. at pp. 558, 563.)
The court concluded that, because the original lender assigned
“‘all beneficial interest’” in the note and deed of trust to the first
bank, it “had nothing to assign” to the second bank. (Id. at
p. 563.) Therefore, the court held, the purported assignment to
the second bank was void. (Id. at p. 564.) Brown argues that
Washington Mutual transferred the Washington Mutual-Zive
deed of trust to the Trust after the Trust’s cut-off date, not that
15 Brown states the Trust is a Real Estate Mortgage
Investment Conduit (REMIC) Trust and, citing Glaski, claims
pooling and servicing agreements for REMIC trusts require deeds
of trust to be transferred before a closing date “to maintain
REMIC tax status.” As discussed, courts have rejected the Glaski
court’s reasoning, including its reliance on tax laws governing
REMIC trusts. (See, e.g., Mendoza v. JPMorgan Chase Bank,
N.A., supra, 6 Cal.App.5th at p. 819 [“The tax implications of
securitization simply do not render a voidable transaction void.”];
Hard v. Bank of New York Mellon (E.D.Cal., Apr. 10, 2018,
No. 2:14-cv-01948-TLN-CMK) 2018 WL 1726637, p. 4 [rejecting
the plaintiff’s argument “the late assignment is void because the
purported late assignment is a ‘prohibited transaction’ under the
Internal Revenue Code”].)
23
Washington Mutual had no deed of trust to assign. If Brown’s
claim were true, the assignment would be voidable, not void.16
C. The Trial Court Did Not Abuse Its Discretion in
Denying Brown’s Request for a Continuance
Brown argues the trial court abused its discretion in
denying her request to continue the hearing on Deutsche Bank’s
motion for summary judgment to allow Brown to take Deutsche
Bank’s deposition (for the third time) and to obtain more
documents. Brown contends she needed the additional discovery
to allow her “to produce evidence that showed Deutsche Bank
had not transferred/assigned the note and trust deed before the
Cut-Off Date.”
Section 437c, subdivision (h), provides: “If it appears from
the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication, or both, that facts essential
to justify opposition may exist but cannot, for reasons stated, be
presented, the court shall deny the motion, order a continuance to
permit affidavits to be obtained or discovery to be had, or make
any other order as may be just.” The declaration under
section 437c, subdivision (h), must show “‘“(1) the facts to be
obtained are essential to opposing the motion; (2) there is reason
to believe such facts may exist; and (3) the reasons why
additional time is needed to obtain these facts.”’” (Jade
Fashion & Co., Inc. v. Harkham Industries, Inc. (2014)
229 Cal.App.4th 635, 656; see Cooksey v. Alexakis (2004)
16 Because we conclude Deutsche Bank was authorized to
enforce the Washington Mutual-Zive deed of trust as trustee of
the Trust, we do not address whether Deutsche Bank could
enforce the deed of trust as holder of the original promissory note.
24
123 Cal.App.4th 246, 254.) “The statute mandates a continuance
of a summary judgment hearing upon a good faith showing by
affidavit that additional time is needed to obtain facts essential
to justify opposition to the motion.” (Cooksey, at pp. 253-254.)
We review the court’s decision whether to grant a continuance for
an abuse of discretion. (Braganza v. Albertson’s LLC (2021)
67 Cal.App.5th 144, 152; Jade Fashion, at p. 643.)
The trial court did not abuse its discretion in denying
Brown’s request for a continuance. Counsel for Brown’s
declaration did not show that the facts Brown sought to obtain
were essential to opposing the motion. To the contrary, as
discussed, the evidence Brown sought—that Washington Mutual
did not endorse the Washington Mutual-Zive note and assign the
Washington Mutual-Zive deed of trust to the Trust until after the
Trust’s May 1, 2006 cutoff date—would show only the assignment
was voidable, not void. Because Brown could not defeat summary
judgment by showing the assignment was voidable, the discovery
was not essential to opposing the motion.
25
DISPOSITION
The judgment is affirmed. Deutsche Bank is to recover its
costs on appeal.
SEGAL, Acting P. J.
We concur:
FEUER, J.
STONE, J.
26