Motion-Secondary: TERESITA POBRE VS. WELLS FARGO HOME MORTGAGE, A BUSINESS ENTITY ET AL

On November 06, 2018 a Motion-Secondary was filed involving a dispute between Pobre, Teresita, and 1321 Quesada Ave 007, Llc, 1321 Quesada Ave 007, Llc, A Business Entity, Clear Recon Corp, Clear Recon Corp, A Business Entity, Does 1 Through 10 Inclusive, U.S. Bank National Association, U.S. Bank, National Association As Legal Title, Wells Fargo Bank, N.A., Wells Fargo Bank, N.A., A Business Entity, Wells Fargo Home Mortgage, A Business Entity, Wells Fargo Home Mortgage, Inc., for QUIET TITLE - REAL PROPERTY in the District Court of San Francisco County.

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1 Sil Liapis (SBN 320002)
Philip M. Green (SBN 298159)
2 OPEN DOOR LEGAL | BAYVIEW ELECTRONICALLY

3
4634 3rd St. F I L E D
Superior Court of California,
San Francisco, CA 94124 County of San Francisco
4 sil@opendoorlegal.org
12/27/2019
philip@opendoorlegal.org Clerk of the Court
5 (415) 610-5991 BY: EDNALEEN ALEGRE
Deputy Clerk
6
Attorneys for Teresita Pobre
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 Case No. CGC-18-571147
TERESITA POBRE, an Individual,
12 Plaintiff, TERESITA POBRE’S OPPOSITION
13 TO DEFENDANT WELLS FARGO
vs. BANK, N.A.’S MOTION FOR
14 SUMMARY JUDGMENT OR
WELLS FARGO HOME MORTGAGE, a
ALTERNATIVELY SUMMARY
15 business entity; CLEAR RECON CORP., ADJUDICATION
16 a business entity; U.S. BANK Filed concurrently with Separate
17 NATIONAL ASSOCIATION, a business Statement of Facts; Declaration of
Dwight Murphy; Declaration of Jose
18 entity; 1321 QUESADA AVE 007, LLC, a Borja; Declaration of Marisa Wong;
19 Declaration of Frank Napitan, Declaration
business entity; and Does 1 through 10, of Linda Thomas; Declaration of
20 inclusive, Stephanie Van Der Linde; Declaration of
Jennifer Burden; Declaration of Carren
21 Defendants. Shagley; Declaration of Sil Liapis;
22 [Proposed] Order

23 Hearing Date: January 10, 2020
Time: 9:30 a.m.
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Dept.: 501
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TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION…………………………………………………… 6
4 II. STATEMENT OF FACTS………………………………………….. 7
5 A. Loan History………………………………………………… 7
6 B. Teresita’s Default…………………………………………… 8
7 C. Wells Fargo Began Foreclosure Without Speaking to
8 Teresita……………………………………………………… 8
9 D. Wells Fargo Failed to Post Notice of Sale on Teresita’s
10 Home………………………………………………………... 9
11 E. Wells Fargo Sold its Beneficial Interest in the Mortgage
12 Prior to the Foreclosure…………………………………….. 9
13 F. Wells Fargo, Lacking Legal Authority to Foreclose,
14 Did So Anyway…………………………………………….. 10
15 G. Wells Fargo Conducted an Unconscionable, Oppressive
16 Auction…………………………………………………….. 11
17 H. Plaintiff Teresita Pobre Learned About the Sale Weeks
18 After It Happened………………………………………….. 11
19 III. STANDARD OF REVIEW FOR SUMMARY JUDGMENT……. 12
20 IV. ARGUMENT……………………………………………………… 12
21 A. Wells Fargo Wrongfully Foreclosed on Teresita’s Home… 12
22 i. Wells Fargo Was Not the Beneficiary of the Deed
23 of Trust and Thus Lacked Any Legal Authority to
24 Foreclose on Teresita’s Home……………………… 12
25 ii. Wells Fargo Did Not Merely Act as A Mortgage
26 “Servicer.”…………………………………………. 14
27 iii. Teresita Does Not Need to Plead That She Can
28 Tender Payment on the Outstanding Loan………… 16

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 iv. Even If Wells Fargo did Have Authority to
2 Foreclose, it Failed to Post Notice of the
3 Foreclosure on Teresita’s Home in Violation
4 of Civil Code § 2924f………………………………. 17
5 a. Notice of Foreclosure was Not Posted
6 on Teresita’s Home…………………….. 18
7 b. Wells Fargo’s Failure to Post Notice
8 on Teresita’s Home Substantially
9 Prejudiced Her…………………………. 20
10 c. If Even If Wells Fargo did Have
11 Authority to Foreclose, It Would Be
12 Inequitable to Impose the Tender Rule… 21
13 B. Wells Fargo Committed Financial Elder Abuse by
14 Wrongfully Foreclosing on An Elder’s Home……………... 21
15 C. Wells Fargo Negligently Foreclosed on Plaintiff’s
16 Property ……………………………………………………. 23
17 D. Teresita Voluntarily Withdraws her Breach of Contract,
18 Unfair Competition Law, and Rosenthal Act Claims……… 25
19 V. CONCLUSION……………………………………………………. 25
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TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 TABLE OF AUTHORITIES
2 Case(s) Page(s)
3 • Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101…………… 17
4 • Aguilar v. A. Richfield, (2001) 25 Cal.4th, 826……………………….. 12
5 • Barrionuevo v. Chase Bank, N.A (N.D. Cal. 2012) 885 F.Supp.2d 964. 13,16
6 • Bounds v. Superior Court (2014) 229 Cal.App.4th 468………………. 22,23
7 • California Academy of Sciences v. County of Fresno (1987) 192
8 Cal.App.3d 1436………………………………………………………. 16
9 • Carlesimo v. Schwebel (1948) 87 Cal.App.2d 482……………………. 15
10 • Chavez v. Indymac Mortgage Services, (2013) 219 Cal.App.4th 1052.. 16,21
11 • Citrus El Dorado, LLC v. Chicago Title Co., (2019) 32 Cal.App.5th
12 943…………………………………………………………………….. 17,18,20
13 • Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288……… 24
14 • Dimock v. Emerald Properties LLC (2000) 81 Cal.App.4th 868…….. 16,17
15 • Elsner v. Uveges (2004) 34 Cal.4th 915……………………………… 24
16 • Estate of Sigourney (2001) 93 Cal.App.4th 593……………………… 22
17 • Glaski v. Bank of America (2013) 218 Cal.App.4th 1079……………. 13
18 • I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281………… 24
19 • Knapp v. Doherty (2004) 123 Cal.App.4th 76………………………… 18
20 • Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338……………. 24
21 • Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d
22 1089…………………………………………………………………… 24
23 • Onofrio v. Rice (1997) 55 Cal.App.4th 413…………………………… 16, 21
24 • Otis Elevator Co. v. Berry (1938) 28 Cal.App.2d 430………………… 15
25 • Paslay v. State Farm General Ins. (2016) 248 Cal.App.4th 639……… 23
26 • Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680……... 24
27 • Sayre v. Nichols (1857) 7 Cal. 535……………………………………. 15
28 • Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522….. 23

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 • Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516…………………… 24
2 • Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919……. 13,14
3
4 Statutes Page(s)
5 Civil Code
6 Civ. Code, § 2924(a)(6)………………………………………………………. 13,24
7 Civil Code § 2924(f)………………………………………………………….. 17,18
8 Code of Civil Procedure
9 Code Civ. Proc. § 437c………………………………………………………. 12
10 Code Civ. Proc. § 437(b)(1)…………………………………………………. 12
11 Code Civ. Proc., § 437(p)(2)………………………………………………… 12
12 Evidence Code
13 Evid. Code, § 669…………………………………………………………….. 24
14 Welfare and Institutions Code
15 Welf. & Inst. Code § 15600, et. seq………………………………………….. 22
16 Welf. & Inst. Code § 15610.30………………………………………………. 22
17 Welf. & Inst. Code § 15610.27………………………………………………. 22
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TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This case is about a 77-year-old woman who had her $800,000 family home taken
4 from her by a bank that had already sold her mortgage to another company; the bank took
5 her life savings and gave her nothing but a penny in exchange.
6 Plaintiff Teresita Pobre (“Teresita”) borrowed $97,500.00 from Defendant Wells
7 Fargo Bank, N.A. (“Wells Fargo”) in 1994; she used this money to purchase a family
8 home in San Francisco, to live with her husband and daughter. Teresita diligently paid her
9 the monthly payments on her loan to Wells Fargo for nearly twenty-four (24) years,
10 building up an astounding $750,000.00 of equity in her home for herself and her family.
11 She never once missed a monthly payment, until January 2018, when she began to
12 experience financial difficulties.
13 When Teresita missed her first mortgage payment in January 2018, Wells Fargo
14 immediately foreclosed on her family home; it did so without once actually speaking with
15 Teresita, also failing to post foreclosure notices on the home in violation of California law.
16 On September 26, 2018, just weeks before the foreclosure sale of Teresita’s home was set
17 to occur, Wells Fargo actually sold its beneficial interest in the mortgage to another
18 company, Truman 2016 SC6, LLC (“Truman”), giving away any beneficial interest it had
19 in the mortgage and thus any legal right it had to foreclose on the property. Not deterred,
20 Wells Fargo sold Teresita’s home anyway, and illegally foreclosed on it without authority,
21 charging Teresita nearly $10,000 in fees and selling her home at auction on October 10,
22 2018, for merely $51,837.21, just one penny more than the outstanding balance of the loan
23 at the time. Wells Fargo profited twice off Teresita’s Mortgage, but Teresita was left with
24 nothing but that single penny to keep. Teresita’s home, now sold, was worth approximately
25 $800,000.00 at the time.
26 Almost two weeks after that sale, Teresita first learned that her home was in
27 foreclosure; she immediately called Wells Fargo to request assistance. At that point, she
28

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 learned that her home had been in foreclosure, and that her home had already been taken
2 away from her.
3 Wells Fargo profited twice off Teresita’s Mortgage because it sold its beneficial
4 interest in Teresita’s loan prior to its foreclosure sale of the home; it lacked the legal
5 authority to conduct this oppressive foreclosure sale. These facts support a denial of Wells
6 Fargo’s Summary Judgment Motion with respect to many of Teresita’s claims.
7 Additionally, even assuming arguendo that Wells Fargo did have legal authority to
8 foreclose, it failed to post a foreclosure notice on Teresita’s home in violation of California
9 Law, effectively denying her the opportunity, afforded by law, to bring her loan current
10 and take the home out of foreclosure. Plaintiff’s Opposition, and the multitude of
11 Declarations filed in support thereof, present an alternative to the “undisputed” material
12 facts offered by Wells Fargo. The parties are clearly in dispute over whether notice of
13 foreclosure sale was posted on Teresita’s home and whether Wells Fargo had authority to
14 foreclose; this dispute over material facts is fatal to Wells Fargo’s Summary Judgment
15 Motion.
16 II. STATEMENT OF FACTS
17 A) Loan History.
18 In October of 1994, Plaintiff Teresita Pobre (“Teresita”) and her husband Artemio
19 Pobre obtained a loan from Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) in the
20 principal amount of $97,500 (the “Loan”), in order to buy a home for their family, located
21 at 1321 Quesada Avenue, San Francisco. (SSF No. 1). Under their agreement, Teresita
22 promised to pay the money back to Wells Fargo in monthly installments, plus applicable
23 interest, until the entire loan was repaid. Id. As security for the Loan, Teresita and her
24 husband Artemio signed a Deed of Trust and adjustable Rate Rider on October 5, 1994
25 (the “Mortgage”), which encumbered their home with a lien (SSF No. 2). Teresita did not
26 read these documents, as Artemio handled the majority of the paperwork; however, she
27 signed the documents as instructed, because she understood she was taking out a loan.
28 (SSF No. 521). Artemio arranged automatic withdrawals of loan payments from their joint

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 marital accounts prior to his death in 1995. (SSF No. 522). After Artemio died, Teresita
2 maintained her accounts and automatically paid the Loan diligently; for nearly twenty-four
3 (24) years, she did not miss a single payment (SSF No. 523). As a result of her diligence,
4 she was able to accumulate nearly $760,000 in equity in her home. (SSF No. 524).
5 B) Teresita’s Default.
6 Unfortunately, Teresita, a retired schoolteacher, fell upon financial difficulties in
7 late 2017. She missed her first Mortgage payment on January 12, 2018. (SSF No. 523). At
8 that time, the total principal balance on her loan was merely $41,969.80. (SSF No. 524).
9 Although Teresita was aware that she was in default, she felt secure that her home was safe
10 because she believed, albeit incorrectly, that the equity in her home would somehow be
11 used to pay the Mortgage. (SSF No. 49).
12 C) Wells Fargo Began Foreclosure Without Speaking with Teresita.
13 Less than a month after Teresita missed her first payment, Wells Fargo pounced at
14 the opportunity to foreclose on her home. In less than 5 months, Wells Fargo formalized
15 the foreclosure process when they, through their Trustee Clear Recon Corp. (“Clear
16 Recon”) recorded a Notice of Default on Teresita’s home on May 29, 2018. (SSF No. 89).
17 At that time Teresita was only $3,070.30 behind on her loan payments. (SSF No. 526)
18 Before the Notice of Default was recorded, Teresita received several letters from Wells
19 Fargo regarding her missed payments and she understood that her loan payments were not
20 being made. (SSF Nos. 11; 21; 14; 16; 18; 20). Although she understood that she was
21 behind on loan payments, Teresita did not understand from the letters she received that
22 Wells Fargo could take her home in foreclosure. (SSF No. 48). She believed that her equity
23 could keep her safe. (SSF No. 49).
24 Rather than meeting the elderly Teresita in person to offer foreclosure alternatives
25 and correct Teresita’s mistaken beliefs, Wells Fargo opted to satisfy its “CA due diligence”
26 requirements “with no contact,” by calling Teresita’s out-of-service phone number three
27 times between February and October 2018. (SSF No. 527). By October 10, 2018, when
28 Wells Fargo sold Teresita’s home at auction, its agents had not once spoken with Teresita

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
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1 on the phone and had not met or even attempted to meet with her in person. (SSF No. 528).
2 It was, however, somehow able to send its agents to the home at least once monthly to
3 appraise the home’s value or inspect its quality and condition. (SSF No. 529).
4 D) Wells Fargo Failed to Post Notice of Sale on Teresita’s Home.
5 Wells Fargo claims that it has complied with all notice requirements under
6 California law. (Wells Fargo Summary Judgment MPA at 6:12–13). Wells Fargo is
7 incorrect.
8 Wells Fargo has alleged that its Trustee, Clear Recon, acting on its behalf, hired a
9 vendor named Stox Posting & Publishing (“Stox”), and that Stox posted a Notice of Sale
10 on Plaintiff’s gate on September 11, 2019. (SSF No. 31). Wells Fargo submitted to this
11 Court a “posting certificate” executed by Will Riddick, a Stox agent, who certified under
12 the penalty of perjury that he posted a copy of the Notice of Sale, legal notice under CCC
13 2923.3, and Legal notice under CCC 2924.8 on the locked gate to Teresita’s home. (SSF
14 No. 31) The declaration contains two photographs, which depict Teresita’s home with
15 legal notice on its gate. This posting never happened; eleven residents of Quesada Street
16 have either declared or testified under the penalty of perjury that such legal notice never
17 appeared on Teresita’s home. (SSF No. 34)
18 Teresita concedes that Wells Fargo sent notices and statements to her by mail.
19 Because several of these notices came from Clear Recon, a company that she did not
20 recognize, Teresita believed many of the notices to be scam mail targeted at seniors. (SSF
21 No. 530). She understood from some of the letters she received that she was behind on her
22 loan payments but she believed that her home’s equity would somehow cover those
23 payments. (SSF Nos. 21; 48; 49). Teresita cannot disprove that Wells Fargo attempted to
24 call her disconnected phone three times. SSF No. 527. Teresita also cannot disprove that
25 Wells Fargo published information about the foreclosure in the Daily Journal; Teresita
26 does not read the Daily Journal. (SSF No. 40).
27 E) Wells Fargo Sold Its Beneficial Interest in The Mortgage Prior To
28 Foreclosure.

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 Wells Fargo profited when it sold its beneficial interest in the Mortgage to the US
2 National Bank Association as Legal Title Trustee for Truman 2016 SC6 Title Trust
3 (“Truman”), just two weeks before the foreclosure sale was set to occur. (SSF No. 531).
4 Wells Fargo, then lacking status as the beneficiary of the mortgage and thus lacking
5 authority to foreclose on the home, was advised by its Trustee, Clear Recon, “to foreclose
6 in the name of U.S. Bank, National Association as Legal Title Trustee for Truman 2016
7 SC6 Title Trust,” as they were the “current bene[ficiary] of record.” (SSF No. 532). Clear
8 Recon intended to “request an [assignment] into the new name to foreclose in” (SSF No.
9 533). On October 9, 2018, just one day before Wells Fargo took and sold Teresita’s home,
10 Clear Recon acknowledged receipt of a “Beneficiary Change data form,” reflecting its
11 understanding that Truman was new beneficiary of the Mortgage. (SSF No. 534).1
12 F) Wells Fargo, Lacking Legal Authority to Foreclose, Did So Anyway.
13 Wells Fargo understood at that time that its sale of the Mortgage to Truman had
14 legal implications; that it would prevent Wells Fargo from legally selling Teresita’s home
15 and collecting those proceeds. Apparently, at one point, this caused enough concern for
16 Wells Fargo and Clear Recon that just one hour before the foreclosure sale was set to
17 occur, they considered a 14-day postponement of the foreclosure sale. (SSF No. 535). A
18 “postponement letter” was even created just minutes before the sale. However, that
19 postponement never happened. (SSF No. 536). On October 10, 2018, the morning of the
20 foreclosure sale, emails between Clear Recon and Wells Fargo, labelled “**super
21 Urgent** RESPONSE NEEDED IMMEDIATELY” confirm that both Clear Recon and
22 Wells Fargo were well aware that the beneficiary of the loan was now Truman, and that
23 any proceeds from the sale should vest to Truman, as there was a “late vesting change.”
24 (SSF No. 537). Indeed, Wells Fargo’s own “Assignment” team recognized that something
25 was wrong, admitting that “the Vesting name did change to [Truman], but the [foreclosure]
26
27 1
Wells Fargo has thus far declined to produce any records of communication, chain of title, or any
agreements between itself and Truman relating to the Mortgage, claiming that they are irrelevant to this
28 matter (SSF No. 551). Teresita intends to file a Motion to Compel the production of those records from Wells
Fargo.
TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

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1 name is still just Wells Fargo Bank, NA.” (SSF No. 538 (emphasis added)). Wells Fargo’s
2 Assignment team then indicated that they would not be able to complete the assignment to
3 Truman prior to the sale that day, and that they would not be able to complete the
4 assignment “until 11/27 or around there.” (SSF No. 539). Not deterred, Wells Fargo’s Vice
5 President of Home Mortgage, Paula Chin, instructed her team to “go to sale” anyway. (SSF
6 No. 540). Wells Fargo foreclosed on the home, intentionally listing themselves,
7 incorrectly, as the beneficiary of the sale, concealing proper chain and collecting a second
8 profit off of Teresita’s Mortgage.
9 G) Wells Fargo Conducted an Unconscionable, Oppressive Auction.
10 Only a single bidder, Joel Wardlaw (“Quesada”), showed up to Wells Fargo’s
11 illegal foreclosure auction for Teresita’s home on October 10, 2018. (SSF No. 60).
12 Quesada bid $51,837.21 for the San Francisco, home, offering Wells Fargo merely one
13 penny more than the total outstanding balance on Teresita’s loan. (SSF No. 60). Naturally,
14 that $51,837.20 balance included nearly $10,000 that Wells Fargo charged Teresita as
15 “Advances, Costs, and Expenses” associated with the foreclosure. (SSF No. 541). After
16 Wells Fargo was finished taking their share of the foreclosure sale proceeds from the sale
17 to Mr. Wardlaw, Teresita was entitled to nothing but a penny; gone was her home and the
18 $760,000 of equity that it held. (SSF No. 541). Teresita did not attend the sale because she
19 was unaware that it was happening. (SSF No. 542).
20 H) Plaintiff Teresita Pobre Learned About the Sale Weeks After It Happened.
21 Teresita learned about the foreclosure sale weeks after the foreclosure sale when
22 her neighbor enlisted a real estate agent, Ropey Trujillo, to call Wells Fargo on Teresita’s
23 behalf. (SSF No. 543). On the phone, it informed Mr. Trujillo that Teresita’s home had
24 already been sold. (SSF No. 543). After Teresita spoke to Wells Fargo on the phone, she
25 and her neighbor Adolfo Gonzalez visited a Wells Fargo location near her house in an
26 attempt to cure her defaulted Loan. They again turned her away, because her home had
27 already been sold. (SSF 544). Teresita immediately retained a lawyer, Matthew Mellen, to
28

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
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1 fight the foreclosure; she paid him $5,692.75 in total for his work, including an initial
2 retainer of $3,500 on November 1, 2018. (SSF No. 545)
3 III. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
4 A motion for summary judgment or, in the alternative, summary adjudication shall
5 only be granted if “if all the papers submitted show that there is no triable issue as to any
6 material fact and that the moving party is entitled to a judgment as a matter of law.” Code
7 Civ. Proc. § 437c. The moving party may support the motion with evidence in the form of
8 affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of
9 which judicial notice shall or may be taken. Code Civ. Proc. § 437(b)(1). “Likewise, any
10 adverse party may oppose the motion with affidavits and also with the pleadings,
11 depositions, answers to interrogatories, and admissions on file.” Aguilar v. A. Richfield Co.
12 (2001) 25 Cal.4th, 826, 844 (internal citations omitted). In ruling on the motion, the court
13 must “consider all of the evidence and all of the inferences reasonably drawn therefrom,
14 and must view such evidence and such inferences in the light most favorable to the
15 opposing party.” Id. (internal citations omitted). A moving defendant has only met its
16 burden of showing that a cause of action has no merit if they have shown “that one or more
17 elements of the cause of action, even if not separately pleaded, cannot be established, or
18 that there is a complete defense to the cause of action.” Code Civ. Proc., § 437(p)(2). If the
19 moving defendant meets that burden, the burden shifts to the “plaintiff… to show that a
20 triable issue of one or more material facts exists as to the cause of action or a defense
21 thereto.” Id. If the plaintiff is able to meet that burden, the moving defendant’s motion for
22 summary judgment must be denied. Id.
23 IV. ARGUMENT
24 A) Wells Fargo Wrongfully Foreclosed on Teresita’s Home.
25 i. Wells Fargo Was Not the Beneficiary of the Deed of Trust and Thus
26 Lacked Any Legal Authority to Foreclose on Teresita’s Home.
27 “A beneficiary or trustee under a deed of trust who conducts an illegal, fraudulent
28 or willfully oppressive sale of property may be liable to the borrower for wrongful

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
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1 foreclosure.” Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 929. A
2 Plaintiff may allege wrongful foreclosure on the basis that the defendant lacked proper
3 authority or standing to foreclose; such a foreclosure completed by one with no authority
4 to do so is necessarily wrongful. Id. (citing Barrionuevo v. Chase Bank, N.A. (N.D. Cal.
5 2012) 885 F.Supp.2d 964, 972). Under California Law, only the beneficiary of a Deed of
6 Trust “can bring to completion a nonjudicial foreclosure under California law.” Yvanova,
7 62 Cal.4th at 928; see also Civ. Code, § 2924(a)(6) (stating, “[n]o entity shall record or
8 cause a notice of default to be recorded or otherwise initiate the foreclosure process unless
9 it is the holder of the beneficial interest under the mortgage or deed of trust”). To plead
10 wrongful foreclosure based on such a lack of “standing to foreclose,” a plaintiff must
11 allege facts “show[ing] the defendant who invoked the power of sale was not the true
12 beneficiary” of the Deed of Trust. Glaski v. Bank of America (2013) 218 Cal.App.4th
13 1079, 1093. Teresita has made this showing.
14 Here, the facts in this case show that Wells Fargo sold, for financial gain, its
15 beneficial interest in the Mortgage to Truman on September 26, 2018, two weeks before
16 the foreclosure sale was set to occur. (SSF No. 531).2 In discovery, Wells Fargo produced
17 (only) the cover page of its agreement with Truman (the “Agreement”), which clearly
18 labels Truman as the “Purchaser,” with the words “execution copy” near the top of the
19 page. Wells Fargo, through this agreement, clearly conveyed it beneficial interest in the
20 Deed of Trust to Truman, and thus, it lacked authority to foreclose. (SSF No. 531).
21 Following the execution of this Agreement, Wells Fargo was advised by its Trustee,
22 Defendant Clear Recon, on October 9, 2018 “to foreclose in the name of U.S. Bank,
23 National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust,” as they
24 were the “current bene[ficiary] of record.” (SSF No. 532). Clear Recon intended to
25 immediately “request an [assignment] into the new name to foreclose in.” (SSF No. 533).
26
2
Teresita has requested from Wells Fargo documents specifically relating to its communications and
27 agreements with Truman, but Wells Fargo has declined to produce these documents, arguing that they are,
among other things, “irrelevant.” Plaintiff intends to file a Motion to Compel these records from Wells Fargo,
28 and discovery is ongoing related to these issues.

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
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1 On October 9, 2018, just one day before Wells Fargo took and sold Teresita’s home, Clear
2 Recon acknowledged receipt of a “beneficiary change data form,”3 reflecting its
3 understanding that Truman was the new beneficiary of the Mortgage. (SSF No. 534).
4 On October 10, 2018, the morning of the foreclosure sale, internal emails between
5 Clear Recon and Wells Fargo, labelled “**super Urgent** RESPONSE NEEDED
6 IMMEDIATELY” confirm that both Clear Recon and Wells Fargo were well aware that
7 the beneficiary of the loan was now Truman, and that any proceeds from the sale should
8 vest to Truman, as there was a “late vesting change.” (SSF No. 537). Indeed, Wells
9 Fargo’s own “Assignment” team recognized that something was wrong, admitting that “the
10 Vesting name did change to [Truman], but the [foreclosure] name is still just Wells Fargo
11 Bank, NA.” (SSF No. 538 (emphasis added)). Wells Fargo’s Assignment team then
12 indicated that they would not be able to complete the assignment to Truman prior to the
13 sale that day, and that they would not be able to complete the assignment “until 11/27 or
14 around there.” (SSF No. 539). Not deterred, Wells Fargo’s Vice President of Home
15 Mortgage, Paula Chin, instructed her team to “go to sale” anyway. (SSF No. 540). Wells
16 Fargo, under Paula Chin’s direct order, foreclosed on the home, fraudulently listing
17 themselves as the beneficiary of the sale, and concealing the proper chain of title. Because
18 Wells Fargo was not the Beneficiary of the Deed of Trust at the time they foreclosed on the
19 Teresita’s home, the foreclosure was necessarily void, and is thus wrongful. Yvanova v. 62
20 Cal.4th at 929.
21 ii. Wells Fargo Did Not Merely Act as A Mortgage “Servicer.”
22 Wells Fargo now for the first time, after over a year of litigation, argues that it was
23 merely a “loan servicer” acting on behalf of Truman, and that they were merely acting as
24 an authorized agent under Truman’s direction. (SSF No. 546) Such an argument does not
25 survive scrutiny.
26 Clear Recon conducted the foreclosure sale on October 10, 2018, operating under a
27 Substitution of Trustee, filed with the San Francisco Assessor-Recorder’s office, which
28
3
Both Clear Recon and Wells Fargo have also failed to produce this “beneficiary change data form.”
TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

- 14 -
1 names Wells Fargo the “present beneficiary” under the Deed of Trust. (SSF No. 23). No
2 amended agreement between Wells and Clear Recon has been provided to either Plaintiff
3 or the Assessor-Recorder’s office. Further, Wells Fargo intended to remain the beneficiary
4 of the loan. Internal process notes, for example, show that Wells Fargo changed the
5 “vesting information” for the Deed of Trust, but remained the “beneficiary.” (SSF 547). It
6 is clear that Wells Fargo intended to foreclose in their own name, rather than merely as an
7 “agent for Truman;” in fact, Wells Fargo did not sign a single document as “agent for
8 Truman.”
9 Wells Fargo seems not to understand how agency works. It is long established in
10 California that “[w]hen one makes a written contract, intending to act therein as the agent
11 of another, and to bind his principal, it is necessary that it should appear in the contract
12 itself, that he acts as such agent.” Sayre v. Nichols (1857) 7 Cal. 535, 539. Generally, an
13 agent who signs its own name, without disclosing the agency relationship or the existence
14 of the principal, is personally liable on such contract. Carlesimo v. Schwebel (1948) 87
15 Cal.App.2d 482, 486. Further, “extrinsic evidence is inadmissible to prove that he acted
16 solely as agent and was not a party to the contract.” Otis Elevator Co. v. Berry (1938) 28
17 Cal.App.2d 430, 432. Wells Fargo listed themselves as the Beneficiary on all foreclosure
18 related documents, they were named the Beneficiary of the Deed of Trust in the
19 Substitution of Trustee under which Clear Recon was authorized to act, and Clear Recon
20 sent Wells Fargo, not Truman, the proceeds from the foreclosure sale of Teresita’s home.
21 (SSF No. 547). Additionally, Clear Recon advised Wells Fargo to complete an assignment,
22 changing the “name to foreclose in” to Truman, as they were the “bene[ficiary] of record”.
23 (SSF No. 532). Wells Fargo did no such thing. Indeed, Wells Fargo openly refused to
24 complete such an assignment, foreclosing in its own name instead. (SSF No. 548). Indeed,
25 Wells Fargo admits that although the beneficiary changed to Truman, “the [foreclosure]
26 name is still just Wells Fargo Bank, NA.” (SSF No. 538).
27 Wells Fargo, in its very first paragraph to its Answer to Plaintiff’s First Amended
28 Complaint, openly admitted to “caus[ing] [the] foreclosure sale” on October 10, 2018.

TERESITA POBRE’S OPPOSITION TO DEFENDANT WELLS FARGO BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY SUMMARY ADJUDICATION

- 15 -
1 (SSF No. 549). It failed to mention tha

Case Info

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Garrett L. Wong Track Judge’s New Case

Case No.

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Document Filed Date

December 27, 2019

Case Filing Date

November 06, 2018

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Parties

1321 QUESADA AVE 007, LLC Defendant
1321 QUESADA AVE 007, LLC, A BUSINESS ENTITY Defendant
CLEAR RECON CORP Defendant
CLEAR RECON CORP, A BUSINESS ENTITY Defendant
DOES 1 THROUGH 10 INCLUSIVE Defendant
GREEN, PHILIP M Attorney for the Plaintiff
LIAPIS, SIL Attorney for the Plaintiff
LOGAN, JANA Attorney for the Defendant
MELLEN, MATTHEW D Attorney for the Plaintiff
POBRE, TERESITA Plaintiff
STREETT, JOHN RICHARD Attorney for the Defendant
SULLIVAN, MARY KATE Attorney for the Defendant
U.S. BANK NATIONAL ASSOCIATION Defendant
U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE Defendant
VOSSLER, SIL Attorney for the Plaintiff
WELLS FARGO BANK, N.A. Defendant
WELLS FARGO BANK, N.A., A BUSINESS ENTITY Defendant
WELLS FARGO HOME MORTGAGE, A BUSINESS ENTITY Defendant
WELLS FARGO HOME MORTGAGE, INC. Defendant
WINTERS, FRED TIMOTHY Attorney for the Defendant
Duncan Nefcy Attorneys for Plaintiffs
Tara Mohseni Attorneys for Defendants
Casper Rankin Attorneys for Defendants
Matthew Aguirre Attorneys for Defendants
Kevin Buggy Attorneys for Plaintiffs

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Motion-Secondary: TERESITA POBRE VS. WELLS FARGO HOME MORTGAGE, A BUSINESS ENTITY ET AL

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