Motion for Summary Judgment in ISIDORA G. CERALDE ET AL VS. SPECIALIZED LOAN SERVICING, LLC. ET AL| Trellis.Law

On January 24, 2018 a Motion-Secondary was filed involving a dispute between Ceralde, Isidora G., De Jesus, Estrella Reyes, Pecaoco, Alma D., and Does 1 To 100, Inclusive, Hsbc Bank Usa, Hsbc Bank Usa, N.A., As Trustee For The Holders Of, Law Offices Of Les Zieve, Mortgage Electronic Registration Systems, National Association, Specialized Loan Servicing, Llc., for civil in the District Court of San Francisco County.

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Law Offices of Mark W. Lapham (SB¹ 146352)
751 Diablo Rd.
Danville, CA 94526
ELECTRONICALLY
Tel: (925) 837-9007
Email: marklapham@sbcglobal.net F I L E D
Superior Court of California,
County of San Francisco

Attorney for Plaintiff, 07/29/2019
ISIDORA G. CERALDE Clerk of the Court
BY: RONNIE OTERO
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SAN FRANCISCO

12 Case No.: CGC-118-563830
ISIDORA G. CERALDE
13 PLAINTIFFS'PPOSITION TO NOTICE
OF MOTION AND MOTION FOR
14 SUMMARY JUDGMENT OR) IN THE
Plaintiff, ALTERNATIVE, PARTIAL SUMMARY
15 ADJUDICATION FILED BY
DEFENDANTS SPECIALIZED LOAN
16 SERVICING, LLC; HSBC BANK USA,
N.A. AND MORTGAGE ELECTRONIC
17 SPECIALIZED LOAN SERVICING, LLC; REGISTRATION SYSTEMS) INC.
HSBC BANK USA, NATIONAL
18 ASSOCIATION as trustee for the
DEUTSCHE ALT-A SECURITIES
19 MORTGAGE LOAN TRUST 2007-OA4 Date: August 9, 2019
MORTGAGE PASS-THROUGH Time: 9:30 a.m.
20 CERTIFICATES, SERIES 2007-OA4; Dept: 501
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. and Action filed: January 24, 2018
22 DOES 1-100 inclusive, Trial date: September 9, 2019

23 Defendants. [Filed concurrently with Declaration ofMark
W. Lapham, Plaintiff Ceralde 's Response to
24 Defendants 'eparate Statement of Undisputed
Material Facts in Support of Defendants
25

26
'otion
for Summary Judgment or, in the
Alternative, Partial Summary Adjudication
and Opposition to Defendants 'equestfor
Judicial Notice]
27

Ceralde v. Specialized Loan Servicing, LLC, et al. PlaintiA'Ceralde's Opposition to MSJ
Case No. CGC-JS-663 830
TABLE OF CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES

I. PROCEDURAL HISTORY.................

II. STATEMENT OF MATERIAL DISPUTED AND UNDISPUTED

FACTS.
III. STANDARD OF REVIEW

IV. ARGUMENT

A. As SLS Accorded Ceralde "Borrower" Status, It is

10 Estopped from Denying Her Protection Afforded
Borrowers Under the Law

12 B. MERS Lacked Authority to Assign the Deed of Trust

13 and Mortgage Note to BAC Home Loans Servicing in 2011

14 1. Language in a Deed of Trust Drafted by the

15 Lender for its Sole Benefit Cannot Abrogate

16 Well-established Agency Law

17 2. MERS Never Held an Interest in the Mortgage

18 Note to Convey to BAC

19 3. Both Assignments are Void Self-to-Self

20 Transfers

C. Geneva Avenue was Ceralde's Primary Residence Until

22 January, 2018

23 D. Tender of the Unpaid Debt is Excused Under Attendant

24 Circumstances

25 E. Defendants* Objections to Plaintiff s UCL Claims

26 Are Baseless

27 F. Plaintiff Has Asserted a Valid Slander of Title Cause

Ceralde v. Specialized Loan Servicing, LLC, et el. Plaintiff Ceralde's Opposition to MSJ
Case No. CGC-18-563830
of Action
G. Plaintiff Has Asserted a Valid Claim for
Cancellation of Instruments
CONCLUSION

Ceralde v. Specialized Loan Servicing, LLC, et al. Plaintiff Ceralde's Opposition to MSI
Case No. CGC-1 8-663830
TABLE OF AUTHORITIES

Cases
Accord Henley v. Hotaling
(1871) 41 Cal. 22, 28 ....13

Adler v. Sargent
(1895) 109 Cal. 42, 49-50. .....14

Aguilar v. Atlantic Richfield Co.
(2001) 25 Cak4+ 826, 107 Cal. Reptr.2d 841, 857 7, 19

Aguilar v. Atlantic Richfield Co.,
107 Cal.Repu.2d at 856.
10
American Drug Stores, Inc. v. Stroh
(1992) 10 Cal.App.4 1446, 1453 ..

12 Carpenter v. Longan (1872) 83 U.S. 271, 274 ...... 1 3

13 Chuo v. IB Prop, Holdings LLC,
No. CV 11-05894 DDP (SPx) (C.D. Cal. Aug. 1, 2011) ...16
14
Contra Costa Title Co. v. Waloff
15
(1960) 184 Cal.app.2d 59, 66. ...20
16
DCD Programs, Ltd. V. Leighton,
17 833 F. 2d 183, 186 (9 Cir. 1987) .. ....23

DeCastro West Chodorow & Burns v. Superior Court
(1996) 47 Cal.App.4 410, 421, 422 .................
19
Estate of Stephens
20 (2002) 28 Cal. 4ta 665, 679.
21
Fisher v. Salmon (1851) 1 CaL 413 .. .....15
22
Fleming v. Kagan
23 (1961) 289 Cal. App. 2d 791. .....18

Frazier v. Aegis IVholesole Corp.
2011 WL 603391 (E.D. Cal. Dec. 16, 2011) .. .....18,19
25
Humboldt Sav. Bank v. McClevery
26 (1911) 161 Cal. 285. ... 1 9
27
ln re Foreclosure Cases,
28 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007) .. .....14
tv
Ceralde v. Specialized Loan Servicing, LLC, et al. Plaintiff Ceralde's Opposition to MSJ
Case No. CGC-lit-663830
In re Sheridan,
2009 WL 631355 at, *4 (Bankr. D. Idaho Mar. 12, 2009.

In Re Vargus,
396 B.R. 511 (Bankr. C.D. Cal. 2008).

In re:Rickie Walker,
Case No. 10-21656, Minute Order on Debtor's Objection to Claim (Bankr. E.D.
CaL May 20, 2010) .. ...14
Inoue v. Bank of America, N.A., as Trustee, et al.,
Case. NO. CGC-14-539132.

Kachlon v. Markowitz,
(2008) 168 Cal. App. 4 316, 336 .. .....,2 I

10 Kids 'niverse v. In2Labs
(2002) 95 Cal.App.4 870, 116 Cal.Rptr.2d 158, 165.

LandmarkNatl. Bankv. Kestler,
12 289 Kan. 528, 538, 216 P.3d 158, 166 (S. Ct. Kan. 2009). ..11, 14

13 LaSalle Bank Nat. Ass 'n v. Lamy,
14
12 Misc. 3d 1191, 824 N.Y.S. 2d 769, 2006 WL 2251721, at "2 (Sup. 2006)(.... .....12,14

15 Lona v. Citibank, NA,
(2011) 202 Cal. App. 4'" 89, 113 ..19
16
Lundy v. Selene Finance, L.P., et al.,
17 Case No. 3:15-cv-05676.
18 ML Direct v. TIG Specialty Ins, Co.
(2000) 79 Cal.App.4'" 137, 93 Cal.Rptr.2d 846, 849 ... .....8,19
19

20 Monterrey S.P. Partnership v. W.L. Bangham, Inc.,
777 P. 2d 623, 627 (Cal. 1989) .. ..12
21
Nissan Fire & Maine Ins. Co. v. Fritz Cos.,
22 210 F.3d 1099, 1102 (9~ Cir. 2000) ..

23 Olgivie v, Select Portfolio Servicing
Case No. 12-CV-001654-DMR (N.D. Cal. July 23, 2012) . ..16
24
OneWest Bank, FSB v. Drayton,
25
29 Misc. 3d at 1039. ..12
26
Pickens v. American Mortgage Exch.
27 , (1969) 269 Cal.App.2d 299, 302 ..8, 20

Ceralde v Specialized Loan Servicing, LLC, et al. Plaintiff Cetalde's Opposition to MSJ
Case No. CGC-18-663830
Riddle v. Harmon
(1980) 102 CaLApp.3d 524, 528 .. 15

Schafer v. CitiMortgage, Inc.
Case No. CV 11-03919 ODW (FFMx) (C.D. Cal. June 15, 2011) .. 16
4
Seidell v. Tuxedo Land Co.
5 (1932) 216 Cal. 165, 170. 14

Videau v. Griffin
(1863) 21 Cal. 389, 391. ...15

Zakaessian v. Zakaessian
(1945) 70 Cal. App. 2d 721, 725. 21

10
Statutes
11
Business & Professions Code I117200 et seq.. ...19
12
Cal. Civ. Code I12936 .. 14
13
Cal. Civil Code $ 1039. 15
14
Cal. Civil Code I't 2924(a)(6) . 12
15
Cal. Civil Code It'2924.15(a). ...17
16
Cal Civil Code 3294.
I'1

18
Cal. Code of Civil Pro. 47. See CCP 47(c)(1) . 21

19 Cal Code of Civil Pro 437c subd. (fl(1) .

20 Cal Code of Civil Pro 437c, subd. (f)(1) ..

21 Cal Code of Civil Pro ("CCP"), t't437c subd. (c).

22 UCC Article 9-203(g) .. 14

23
Other Authorities

25
Miller & Starr, Cal. Real Estate (3'd. 2000) Deeds, I't8.27, p. 52; Civil Code
26 Ii2309 ("authority to enter a contract required by law to be in writing can only
be given by an instrument in writing) .. 16
27

28
vi
Ceralde v. Specialized Loan Servicing, LLC, et al. Plaintiff Ceraide's Opposition to MSJ
Case No. CGC-18-563830
William W. Schwarzer, et al.,California Practice Guide: Federal Civil Procedure
Before Trial, ft14:123 (Steven J. Adamski, el al. eds., 2001)

26
27

28
Vtt
Ceralde v. Specialized Loan Servicing, LLC, et al. plaintiff Ceralde's Opposition to MSJ
Case No. CGC-III-563II30
TO THE COURT, DEFENDANTS AND ANY INTERESTED PARTIES:

Plaintiff ISIDORA G. CERALDE hereby opposes the Notice of Motion and Motion for Summary

Judgment or, in the Alternative, Partial Summary Adjudication filed by Defendants SPECIALIZED
LOAN SERVICING, LLC, HSBC BANK USA, NATIONAL ASSOCIATION as trustee for the

DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST 2007-OA4 MORTGAGE PASS-

THROUGH CERTIFICATES, SERIES 2007-OA4 and MORTGAGE ELECTRONIC REGISTRATION

SYSTEMS, INC.

MEMORANDUM OF POINTS AND AUTHORITIES
I. PROCEDURALHISTORY

10 On January 24, 2018, original Plaintiffs Isidora G. Ceralde, Estrella Reyes De Jesus and Alma D.

Pecaoco instituted the instant action by filing a Complaint in this Court. On March 2, 2018, Defendants

12 removed the action to the federal district court. On April 13, 2018, the case was remanded back to the

13 Superior Court of San Francisco.

14 On May 14, 2018, all Defendants except the Law Offices of Les Zieve demurred to the Complaint.

15 Plaintiffs filed an Opposition to the Demurrer on May 30, 2018. On June I, 2018, the Law Offices of Les
16 Zieve filed an Answer to the Complaint.

17 On June 26, 2018, the Court issued its ruling on the Demurrer. The Court dismissed Plaintiff

Estrella Reyes De Jesus from the action on the ground that she no longer held an interest in the Subject

19 Property (1276 Geneva Avenue, San Francisco) at the time of the foreclosure sale. The Court overruled

20 the Demurrer as to all causes of action brought by Plaintiffs Ceralde and Pecaoco.

21 On July 11, 2018, the demurring Defendants answered the Complaint. On April 04, 2019, follovidng

discovery by the Defendants, Plaintiff Pecaoco was dismissed Irom the action without prejudice. On May

23 I, 2019, Ceralde, the remaining Plaintiff, entered into a settlement with The Law Offices of Les Zieve

24 pursuant to which that Defendant was dismissed from the action with prejudice.

25 On July 2, 2019, the remaining Defendants filed the instant Motion for Summary Judgment or, in

the Alternativ, Partial Summary Adjudication. This Opposition addresses Defendants'otion.

Ceralde v. Specialized Loan Servicing, LLC, ei al. Plaintiff Ceralde*s Opposition to MSJ
Case No. CGC-18-563830
II. STATEMENT OF MATERIAL DISPUTED AND UNDISPUTED FACTS
Plaintiff Ceralde purchased residential property commonly known as 1276 Geneva Avenue, San
Francisco 94112 in 1981. In 2007, she sought to refinance the property. To make her a stronger candidate

for the contemplated refinance, she invited her close fiends Estrella Reyes De Jesus and Alma Pecaoco to

sign the loan documents with her. However, the broker advised Ceralde not to sign the loan documents

because her weak FICO score could jeopardize the new loan. Accordingly, Reyes De Jesus, Pecaoco and

Ceralde agreed that Reyes De Jesus and Pecaoco would sign the loan documents and that they would grant

Cerlade a I/3 interest in the property via a grant deed. Defendants'equest for Judicial Notice ("RJN"),

Exh. H.

10 On April 27, 2007, Plaintiff Alma Pecaoco and Estrella Reyes De Jesus executed an adjustable rate

mortgage relating to the Subject Property which consists of a Deed of Trust ("DOT") and Adjustable Rate

12 Pay Option Note (12-month MTA). The DOT identifies Countrywide Bank, FSB as the lender, Defendant

13 MERS as the nominal beneficiary and Recontrust Company, N.A. as the trustee. The original loan servicer

14 was Countrywide Home Loans Servicing, LP. BAC Home Loans Servicing, LP subsequently became the

15 purported loan servicer as successor to Countrywide Home Loans Servicing. Defendants'tatement of

16 Undisputed Material Facts ("SOUMF") Nos. I and 2. Bank of America then became servicer as successor

17 by merger to BAC. Defendant Specialized Loan Servicing, LLC held itself as the servicer of

18
Plaintiffs'ortgage
loan at the time of the wrongful foreclosure. Complaint ("Compl.), /$ 9, 12; SOUMF No. 5.

19 On or before June 29, 2007, Countrywide sold Plaintiffs'ortgage loan to DB Structured Products,

20 Inc., the Sponsor in a securitization transaction identified as the Deutsche Alt-A Securities Mortgage Loan

21 Trust 2007-OA4 Mortgage Pass-through Certificates, Series 2007-OA4 ("DBALT 2007-OA4n), a

22 mortgage-backed securities trust. Defendant HSBC serves as trustee for the Trust. The securitization of

23 Plaintiffs'ortgage loan is a transaction designed to comply with the requirements of the Tax Code

24 applicable to REMICs. Specifically, all steps in the contribution and transfer of the notes must be a *'uue

25 and "complete" sale between the parties in order to achieve bankruptcy remoteness. Upon formation of the

26 REMIC-qualified MBS Trust, the Depositor sells the pooled mortgage loans in exchange for the secui'ities

27 certificates issued by the trust. Each step of the "true sale" process must be supported by effective

Ceralde v. Specialized Loan Servicing, LLC, eral. Plaintiff Ceralde's Opposition to MSJ
Case No. CGC-18-563830
delivery and certification of acceptance of the receiving party of the endorsed mortgage note and assigned

deed of bust, reflecting the complete intervening assignments and transfers of each mortgage loan from

each assignor to the last assignee. The first "true sale" occurred when DB Structured Products, Inc.,
securitization Sponsor and Seller, sold the loan to ACE Securities Corp., the securitization Depositor.

Thereafter, ACE Securities Corp. sold the loan to HSBC Bank USA, National Association, the trustee for

the Trust. This was the second true sale. The governing trust documents require that all title to, and

interest in, the Subject mortgage loan be sold to HSBC, as trustee for the investors in the REMIC trust.

The foregoing sales were made without the required intervening assignment of Plaintiffs

Deed of Trust and endorsement of the Note in contravention of the
governing trust documents. Compl.,

Plaintiff 10

13
)$ 13-15, 17-18.

On September 17, 2007, Grantors Alma Pecaoco and Estrella Reyes De Jesus executed a Grant

Deed conveying an undivided one-third interest in the Subject Property to

The Grant Deed was recorded on July 7, 2014. Compl., $ 19; SOUMF No.
lsidor G.
8; RJN Exh. H.
Ceralde.

14 On or about July, I, 2008, Bank of America Corporation purchased Countrywide Financial

15 Corporation, a Delaware Corporation and the parent company of Countrywide Home Loans, Inc..The

16 Subject mortgage loan was not among the assets Bank of America purchased from Countrywide in 2008

as Countrywide sold all of its interest in Plaintiffs'oan in 2007. Compl.,
17 $20.
18 On June 10, 2011, Mary Ann Hiermann, an employee of Recontrust Company, N.A., signed an

19 Assignment of Deed of Trust purporting to be Assistant Secretary of MERS, which in turn falsely held

20 itself out as the "holder of the Deed of Trust", purporting to assign all beneficial interest in Plaintiffs'eed

21 of Trust, together with the note, to BAC Home Loans Servicing, LP f/k/a Counnywide Home Loans

22 Servicing, LP (aAssignment I"). Assignment I was recorded on July 7, 2011. SOUMF No. 4; RJN Exh.

23 E. As MERS no longer held any interest in PlaintifFs mortgage loan, Assignment I isnull and void.

24 Pursuant to public statements made by Hiermann, she is not now, nor has she ever been, an employee of

25 MERS and has never received any remuneration from MERS. Hiennann also failed to disclose in the

26 assignment that she is an employee of Recontrust signing under an alleged agency agreement between her

Ceralde v. Specialized Loan Servicing, LLC, et al. Plaintiff Ceralde's Opposition to MSJ
Case No. CGC-18-563830
employer and MERS. The reason for the non-disclosure is that no such agency agreement exists. Compl.,

/$21, 22.
This Assignment was executed by MERS which no longer had any valid agency with original

lender Countrywide. Moreover, neither DB Structured Products, Inc., the Sponsor in the securitization

process, nor ACE Securities Corp., the securitization Depositor, is a member of the MERS registry. For

this additional reason, MERS exited the chain of title of Plaintiff s mortgage in 2007. Plaintiff s Response

to SOUMF No. 4. MERS must prove an agency relationship with its principal. See, e,g., In Re Vargas,

396 B.R. 511 (Bankr. C.D. Cal. 2008). MERS has not provided any evidence that it has been appointed

the nominal beneficiary by any purported subsequent holder of an interest in Plaintiffs'ortgage. MERS

10 cannot arbitrarily re-assert itself into the chain of title of Plaintiffs'ortgage. Compl., $24.

The Assignment is void for the additional reason that MERS never held any interest in the debt, that

12 is, the Note, secured by the deed of trust. Although MERS tracks changes in ownership of the beneficial

13 rights for loans registered on the MERS40 System, MERS cannot transfer the beneficial rights to the debt.

14 The debt can only be transferred by properly endorsing the promissory note to the transferee. Compl., $29.

15 On April 5, 2012, Pamela Schneider, an employee of Recontrust, executed a second Assignment of

16 Deed of Trust (Assignment 2) as "Assistant Vice President" of Bank of America, N.A., successor by

17 merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, purporting to

18 assign all beneficial interest in the Deed of Trust, together with the note, to HSBC Bank USA, National

19 Association, as trustee for the holders of the Deutsche Alt-A Securities, Inc. Mortgage Loan Trust,

20 Mortgage Pass-through Certificates Series 2007-OA4 (" Assignment 2"). SOUMF No. 6. As Bank of

21 America was an invalid beneficiary, and held no interest in the debt, it held no interest in

22
Plaintiffs'ortgage
to convey to anyone in 2012. Therefore, Assignment 2 is null and void. PlaintifF s Response to

23 SOUMF No. 6. Moreover, pursuant to public statements made by Schneider, she is not now, nor has she

24 ever been, an employee of MERS in that Schneider has received no remuneration from MERS for the

25 purpose of employment. Compl., $'[[31, 32.

On July 31, 2014, Defendant SLS, attorney-in-fact for HSBC Bank USA as trustee for the holders

27 of Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Mortgage Pass-through Certificates Series 2007-

Ceralde v. Specialized Loan Servicing, L/C, et al. Plaintiff Ceralde's Opposition to MSJ
Case No. CGC-18-563830
OA4, purported to substitute the Law Offices of Les Zieve for Recontrust as bustee under the deed of

trust. As the SOT flows from the illegal and void Assigmnent 2, it too, is null and void. The assignment

was also executed in violation of Cal. Civil Code section 2934a(a)(1)(A) which requires that all (valid)

beneficiaries execute and acknowledge a substitution of trustee. Compl., tt38; Plaintiff s Response to

SOUMF No. 15.

On July I, 2014, Grantor Estrella Reyes De Jesus granted her interest in the Subject Property to
Plaintiff Ceralde. The Grant Deed was recorded on July 7, 2014. Compl., $ 39; Plaintiff s Response to

SOUMF No. 9; RJN Exh. I.

On July 31, 2014, SLS, on behalf of HSBC, directed the Law Offices of Les Zieve to record a

10 Notice of Default ("NOD") against Alma Pecaoco and Estrella Reyes De Jesus. Plaintiff's Response to

SOUMF No. 16. The NOD was not issued against Plaintiff Isidora G. Ceralde even though Ceralde was an

12 owner of record when the NOD was issued. The NOD violates $22 of the DOT as it fails to notify

13 Plaintiffs of their contractual right to bring forth a legal action challenging the default and any other legal

14 defense to the acceleration of the loan or sale of the property. Paragraph 22 constitutes a condition

15 precedent to enforcement of the Subject mortgage loan. Compl., $$ 40, 41.

16 The NOD is null and void ab initio as HSBC held no valid interest in the Subject Loan and was

17 without authority to direct its agent, Les Zieve to file the NOD against Pecaoco and De Jesus. Moreover,

Les Zieve, similarly, was not validly substituted as foreclosing hustee under the deed of trust and had no

19 authority to file the NOD. For this additional reason, the NOD is fatally defective, null and void. Compl.,

20 f42.

21 On March 19, 2015, the Law Offices of Les Zieve recorded a Notice of Trustee's Sale (" NOTS ")

22 against the Subject Property. The NOTS identifies Alma Pecaoco and Estrella Reyes De Jesus as the

23 trustors. The NOTS was not issued against Plaintiff Ceralde. Ceralde had been accorded the status of a

24 "borrower" and was expressly invited to apply for a modification of the onerous terms of the subject

25 mortgage loan as she contributed to payment of the Subject mortgage loan. In addition, SLS hired

26 National Bankruptcy Services, LLC ('NBS") to negotiate a loan modification with Plaintiff Ceralde in the

27 context of Ceralde's bankruptcy. Plaintiff s Response to SOUMF No. 3; Compl. tI43, Exh. L. In fact,

Ceralde v. Specialized Loan Servicing, LLC, el al. Plaintiff Ceralde's Opposition to MSJ
Case No, CGC-18-563830
Ceralde had a complete loan modification pending when Defendants conducted the illegal foreclosure

sale. As the NOTS was issued by an invalid trustee on behalf of an invalid beneficiary, it, like the

assignments and foreclosure documents that preceded it, is null and void. Compl., $43.

Les Zieve sold Plaintiffs'roperty at auction on October 2, 2015 to HSBC, as trustee for Deutsche

Alt-A Securities Mortgage Loan Trust 2007-OA4 Mortgage Pass-through Certificates, Series 2007-OA4.

A Trustee's Deed Upon Sale, memorializing the foreclosure, was recorded on October 18, 2015. SOUMF

No. 21; RIN Exh. M. As none of the Defendants had the authority to direct or exercise the power of sale

under the deed of trust, and as the NOTS is null and void, so, too, is the Trustee's Deed Upon Sale.

Compl., $44.

On or about January 9, 2018, HSBC Bank, as trustee, sold the Subject Property.'ee sales history

attached hereto as Exhibit aA". Plaintiff Ceralde does not know the identity of the purchaser. Ceralde
resided at the Property and considered it her primary residence for years after the October 2, 2015 illegal

13 foreclosure sale. Plaintiff's Response to SOUMF No. 10. Ceralde worked as a live-in caregiver in

14 Sacramento before the wrongful foreclosure and thereafter. Id. The job required her to live in her

15 employer's residential care facility five days a week. And she maintained a rental property in Sacramento

16 to store her work clothes and other necessities. Lapham Decl., Exh. C 31:66-10. But Ceralde never

17 considered the Sacramento rental her primary residence until she permanently vacated Geneva Avenue on

18 January 10, 2018. Lapham Decl. Exh C, 29:10-23. Until that time, she had her mail sent both to her

19 Sacramento and Geneva Avenue addresses. Lapham Decl. Exh. C, 31:2-5. In fact, Plaintiff spent money to

20 pay for permits and construction of an "in-law" unit on the ground floor of the Property. Id. at 55:4-7;

21 80:1-6; 84: 4-11. She, alone, paid utility bills related to the Property. Lapham Decl. Exh. B, Plaintiff s

22 Response to Form Interrogatory No. 17.1(fJ. Ceralde and her tenants did not vacate the Property until

23 January 10, 2018. Until then, Ceralde's beloved piano remained at Geneva Avenue. Lapham Decl., Exh.

24 C, 81:4-8.

25
'n their Motion for Summary Judgment, Defendants ask that the Court order expungement of a
26 lis pendens which was placed on the Property in connection with a prior wrongful foreclosure action
filed by an attorney other than Ceralde's attorney in this action. Defendants do not explain how they
27 have standing to ask that the lispendens be expunged now that they presumably no longer hold an
interest in the Property. The lis pendens is the new owner's property.
28

Ceralde v. Specialized Loan Servicing, LLC, ei al. Plaindff Ceralde's Opposition to MSl
Case No. CGC-18-563830
All foreclosure activity by the Defendants against all three Plaintiffs has been conducted by and on

behalf of an invalid beneficiary and thus is illegal, null and void. The foreclosure activity against Plaintiff

Ceralde is illegal, null and void because none of the Defendants issued a Notice of Default, Declaration of

Compliance with Civil Code section 2923.55(b)(2) to her as required by California's nonjudicial

foreclosure statute. Compl., $45.

111. STANDARD OF REVIEW

A Motion for Summary Judgment is appropriate to establish that there is no triable issue as

to any material fact and that the moving party is entitled to judgment as a matter of law. Code of Civil

Procedure ("CCP"), $ 437c subd. (c). "Because summary judgment is a 'drastic device,'utting off a

10 party's right to present his or her case to the jury, the moving party bears a 'heavy burden'f

demonstrating the absence of any material issues of fact." William W. Schwarzer, et al.,California
12 Practice Guide: Federal Civil Procedure Before Trial, »S14:123 (Steven J. Adamski, et al. eds., 2001).

13 The legal standards applicable to the review of a Motion for Summary Judgment were articulated
14 by the California Supreme Court in the seminal case of Agailar v. Atlantic Richfield Co. (2001) 25
15 Cal.4'" 826, 107 Cal. Reptr.2d 841, 857. Specifically, the Court explained that the party moving for

16 summary judgment bears the initial burden of production to make a prima facie showing of the
17 nonexistence of any triable issue of material fact. If the court determines that the movant has carried
18 that burden, the burden of production shifts to the party opposing the motion to make a prima facie
19 showing of the existence of a triable issue of material fact. If the court determines that the moving party
20 has failed to make a sufficient showing to meet its burden of production, then the burden does not shift
21 to the non-moving party and the Motion for Summary Judgment must be denied. This is so even if no
22 opposing evidentiary matter is presented. 10A Charles Alan Wright, et al., Federal Practice and
23 Procedure, $ 2739. At 391-392. The movant also bears the burden of persuasion, which never shifts to
24 the opposing party, and requires the moving party to persuade the court that summary judgment should

be granted because there is no triable issue of material fact. iVissan Fire & Maine Ins Co. v. Fritz Cos.,
26 210 F.3d 1099, 1102 (9'» Cir. 2000). If the court concludes that the plaintiff s evidence or inferences

27 raise a triable issue of material fact, it must conclude its consideration and deny the defendants'otion.

Ceratde v. Specialized Loan Servicing, LLC, el al. Plaintiff Ceralde's Opposition to MSJ
Case No. CGC-18-563830
Kids'niverse v. In2Lahs (2002) 95 Cal.App.4'70, 116 Cal.Rptr.2d 158, 165. All doubts as to

whether any material, triable issues of fact exist are to be resolved in favor of the party opposing

summary judgment. Aguilar v. Atlantic Richfield Co., 107 Cal.Reph.2d at 856; ML Direct v. TIG

Specialty Ins, Co. (2000) 79 Cal App4'37, 93 Cal Rptr2d 846, 849; Pichens v. American Mortgage
Exch., (1969) 269 Cal.App.2d 299, 302.

A motion for summary judgment seeks to dispose of the entire action whereas a motion for

summary adjudication seeks to dispose of limited issues within the case. See CCP 437c, subd. (f)(1).
A party may move for summary adjudication as to one or more causes of action within an action,
one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if
the party contends that the cause of action has no merit, that there is no affirmative defense to the
cause of action, that there is not merit to an affirmative defense as to any cause of action, that there is
10 no merit to a claim for damages, as specified in section 3294 of the Civil Code, or that one or more
defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary
adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense,
a claim for damages, or an issue of duty.
12

13
Id. The statute only permits summary adjudication of a claim for punitive damages. CCP 437c subd.
14
(f)(1) "does not permit summary adjudication of a single item of compensatory damage which does not
15
dispose of the entire cause of action." DeCastro liest Chodorow AI Burns v. Superior Court (1996) 47
16
Cal. App.4'" 410, 421, 422.
17
IV. ARGUMENT
18
A. As SLS Accorded Ceralde "Borrower" Status It is Esto ed from
19 Den in Her Protections Afforded Borrowers Under the Law
20 Defendants challenge the wrongful foreclosure claim arguing that, as Ceralde is not a signatory to
21 the loan documents, she has no standing to bring a wrongful foreclosure cause of action. Motion for
22 Summary Judgment ("MSJ") at 5-6. However, the undisputed facts are that SLS expressly accorded
23 Ceralde borrower status based the 2007 and 2014 grant deeds which conferred on her a 2/3 ownership
24 interest in the property. SLS hired NBS to explore loss mitigation options in the context of Ceralde*s
25 bankruptcy and, affer bankruptcy proceedings concluded, expressly invited her to submit an application
26 for a loan modification. See Plaintiff s Response to SOUMF No. 3. In fact, SLS reviewed two applications
27 submitted by Plaintiff and a third complete application was under review at the time the illegal foreclosure
28

Ceralde v. Specialized Loan Servicing, LLC, el al. Plaintiff Ceralde's Opposidon to MSJ
Case No. CGC-18-563830
sale occurred. See Plaintiff's Response to SOUMF No. 23. Having determined that Ceralde is a borrower

qualified to pursue loss mitigation options, it is estopped from arguing in this litigation that she is not a

veritable borrower entitled to sue Defendants for the wrongful foreclosure of her Geneva Avenue

property.
B. MKRS Lacked Authori to Assi n the Deed of Trust and
Mort a e Note to BAC Home Loans Servicin in 2011

Defendants next argue that the 2011 assignment of the deed of trust and note from MERS to BAC

7 Home Loan Servicing and the 2012 assignnient &om BAC to HSBC Bank conferred on them authority

8 to foreclose on the Subject Property. MSJ at 7-8.

1. Language in a Deed of Trust Drafted by the Lender for its
Sole Benefit Cannot Abrogate Well-established Agency Law.
10

Defendants rely in language in the deed of trust which identifies MERS as the beneficiary for the

"lender and the lender's successors an

Case Info

Judge

Garrett L. Wong Track Judge’s New Case

Case No.

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Document Filed Date

July 29, 2019

Case Filing Date

January 24, 2018

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Parties

CERALDE, ISIDORA G. Plaintiff
COLMAN, ABRAHAM J Attorney for the Defendant
DE JESUS, ESTRELLA REYES Plaintiff
DOES 1 TO 100, INCLUSIVE Defendant
HSBC BANK USA Defendant
HSBC BANK USA, N.A., AS TRUSTEE FOR THE HOLDERS OF Defendant
LAPHAM, MARK Attorney for the Plaintiff
LAW OFFICES OF LES ZIEVE Defendant
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS Defendant
NATIONAL ASSOCIATION Defendant
PECAOCO, ALMA D. Plaintiff
SPECIALIZED LOAN SERVICING, LLC. Defendant
STEELE, JOHN C. Attorney for the Defendant
Raffi Kassabian Attorney
Britt Roberts Attorneys for Defendants
Jennifer Needs Attorney
Samantha MacLeod Attorneys for Plaintiffs
Priscilla Szeto Attorneys for Defendants
Le T. Duong Attorneys for Defendants
Mark Waterman Attorney
Raagini Shah Attorneys for Defendants
George Yuhas Attorney
Denise Leadbetter Attorney

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Motion-Secondary: ISIDORA G. CERALDE ET AL VS. SPECIALIZED LOAN SERVICING, LLC. ET AL

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