Motion for Summary Judgment in Deutsche Bank National Trust Co. vs Raymond Gray, Sr. et al| Trellis.Law

On June 29, 2017 a Motion,Ex Parte was filed involving a dispute between Deutsche Bank National Trust Co., and Elizabeth P. Ancheta, Raymond M. Gray, Timothy A. Gray, for Other Real Property Unlimited (26) in the District Court of Santa Clara County.

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PARKER IBRAHIM & BERG LLP
JOHN M. SORICH (CA Bar No. 125223)
John.Sorich@piblaw.com
MARIEL GERLT-FERRARO (CA Bar No. 251119)
Mariel.Gerlt-Ferraro@piblaw.com
KAITLYN Q. CHANG (CA Bar No. 253289)
695 Town Center Drive, 16" Floor
Costa Mesa, CA 92626
Tel: (714) 361-9550
Fax: (714) 784-4190

Attorneys for Plaintiff
DEUTSCHE BANK NATIONAL TRUST CO. AS TRUSTEE
FOR WAMU MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-AR1 TRUST

SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF SANTA CLARA
11

12
DEUTSCHE BANK NATIONAL TRUST CO. CASE NO.: 17CV312433
13 AS TRUSTEE FOR WAMU MORTGAGE Honorable Theodore C. Zayner
PASS-THROUGH CERTIFICATES SERIES
14 2006-AR1 TRUST, NOTICE OF MOTION AND MOTION
FOR SUMMARY JUDGMENT, OR IN
15 Plaintiff, THE ALTERNATIVE, MOTION FOR
SUMMARY ADJUDICATION;
16 vy,
MEMORANDUM OF POINTS AND
17 RAYMOND M. GRAY, SR., an individual; AUTHORITIES
TIMOTHY A. GRAY, an individual;
18 ELIZABETH P. ANCHETA, an individual; ALL Date: January 29, 2019
PERSONS UNKNOWN, CLAIMING ANY Time: 9:00
19 LEGAL OR EQUITABLE RIGHT, TITLE, Dept.: 6
ESTATE, LIEN OR INTEREST IN THE
20 PROPERTY KNOWN AS 12820 SYCAMORE
AVENUE, SAN MARTIN, CALIFORNIA [Filed Concurrently with the Separate
21 95046; and DOES | through 100, inclusive, Statement of Undisputed Material Facts and
Supporting Evidence; Declaration of Kaitlyn
22 Defendants. Q. Chang; Declaration of Alicia Hernandez;
Declaration of Exhibitis; Request for Judicial
23
Notice; [Proposed] Order Granting Motion for
24 Summary Judgment and [Proposed] Judgment
for Plaintiff]
25
26
TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
27

1
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT,
O
46174945, MOTION FOR SUMMARY ADJUDICATIONR IN THE ALTERNATIVE,
PLEASE TAKE NOTICE that on January 29, 2019, or as soon thereafter as the matter may

be heard in department 6 of the above-entitled Court located at 191 N. First Street, San Jose, CA

95113, Plaintiff DEUTSCHE BANK NATIONAL TRUST CO. AS TRUSTEE FOR WAMU

MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR1 TRUST (“Deutsche Bank,

as Trustee” or “Plaintiff”) will and hereby does move the Court for an entry of summary judgment,

or in the alternative summary adjudication of the causes of action in its favor against defendants

Raymond M. Gray, Sr., Timothy A. Gray and Elizabeth P. Ancheta (collectively “Defendants”.

The Motion is made and based upon California's Code of Civil Procedure section 437c¢ on

the ground that there is no triable issue of material fact as to Plaintiffs entire Complaint. Said

10 motion will be made against Defendants on the following issues, which if dispositive, would result

11 in a judgment as to the whole Complaint, for the following reasons, and for costs of suit incurred

12 herein and such other relief as may be just:

13 1 There is no triable issue of material fact in the Complaint and as such, Plaintiff is

14 entitled to summary judgment as to all causes of action asserted in the Complaint.

15 2 In the alternative, if for any reason summary judgment cannot be issued, for an order

16 adjudicating that there is no triable issue of material fact as to the first cause of action for

17 “Cancellation of Instruments” asserted in the Complaint, and that the final judgment in this action

18 shall, in addition to any matters determined at trial, award judgment in favor of Plaintiff.

19 8 In the alternative, if for any reason summary judgment cannot be issued, for an order

20 adjudicating that there is no triable issue of material fact as to the second cause of action for

21 “Slander of Title” asserted in the Complaint, and that the final judgment in this action shall, in

22 addition to any matters determined at trial, award judgment in favor of Plaintiff.

23 4 In the alternative, if for any reason summary judgment cannot be issued, for an order

24 adjudicating that there is no triable issue of material fact as to the second cause of action for

25 “Declaratory Relief” asserted in the Complaint, and that the final judgment in this action shall, in

26 addition to any matters determined at trial, award judgment in favor of Plaintiff.

27 This Motion is based upon this Notice of Motion, the Memorandum of Points and
28 Authorities, Declarations of Kaitlyn Q. Chang and Alicia Hernandez, Separate Statement of

2
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
46174945 OTION FOR SUMMARY ADJU DICATION
Undisputed Material Facts, the law, and upon all pleadings, papers, and documents on file herein, as

well as any oral argument which may be presented at the time of the hearing or any matters of which

judicial notice is requested and/or is taken.

PLEASE TAKE FURTHER NOTICE THAT a tentative ruling on a law and motion

matter may be obtained by telephoning (408) 882-2515 after 2:00 p.m. on the first court day

immediately preceding the hearing on the motion, or by accessing the court’s website at:

http://www.sescourt.org/online_services/tentatives/tentative rulings Dept6.shtml. Parties intending

to appear on the matter shall notify the Law and Motion Department or the department hearing the

case and state their intent to appear. Parties shall follow the instructions as directed on the telephone

10 Tentative Ruling notification message or on the Court’s website.

12 DATED: October 17, 2018 PARKER IBRAHIM & BERG LLP

13
By: bez
14 JOHN M. SORICH
MARIEL GERLT-FERRARO
15 KAITLYN Q. CHANG
Attorneys for Plaintiff
16 DEUTSCHE BANK NATIONAL TRUST CO. AS
TRUSTEE FOR WAMU MORTGAGE PASS-
17 THROUGH CERTIFICATES SERIES 2006-AR1
TRUST
18

19
20

25
26

3
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
4617494.5 MOTION FOR SUMMARY ADJUDICATION
TABLE OF CONTENTS

SUMMARY OF ARGUMENT - SUMMARY JUDGMENT SHOULD ISSUE
IL STATEMENT OF RELEVANT FACTS
A The Subject Loan in the Amount of $1,100,000.00 ...........0+
B Due to the Default on the Loan, the Property Was Foreclosed in
October 2009
Cc. Defendants Recorded Multiple Fraudulent and Unauthorized Documents
Against the Property . ...........
Defendants Filed a Lawsuit to Challenge the Foreclosure .
Judgment Was Entered in Favor of Deutsche Bank, as Trustee in the Prior
Action and an Appeal is Currently Pending | ....c.se.seecessessecsestesseseesessesteeneeneeseenseneene

10 Deutsche Bank, as Trustee Has Been Deprived of Possession of the Propety
for More Than Nine Years Since the Trustee’s Sale and More Than Two
Lt Years Since the Entry of Judgment

12 G Defendants Have Been Residing at the Property Without Making Any
Payments to Deutsche Bank, as Trustee and Also Collecting Rental Income
13 Ill. LEGAL STANDARD
14 IV. LEGAL ARGUMENTS
15 A No Triable Issue of Material Fact Exists as to Deutsche Bank, as Trustee’s
Cause of Action for Cancellation of Instrucments
16
1 The 2016 Grand Deed is Void and/or Voidable and Subject to
17 Cancellation
The 2016 Grant Deed Will Seriously Injure Deutsche Bank, as
18 Trustee, if Left Outstanding
19 B Deutsche Bank, as Trustee is Entitled to Judgment on the Second Cause of
Action for Slander of Title
20
Cc Deutsche Bank, as Trustee is Entitled to Judgment on the Third Cause of
21 Action for Declaratory Relief . ........cescesssessussssessneseesesacessessessnessesseessesseesseesees 10

22 CONCLUSION 12

24
25

1
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, O) R IN THE ALTERNATIVE,
46174945 MOTION FOR SUMMARY ADJUDICATION
TABLE OF AUTHORITIES

PAGE
Cases

Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal. 4th 826

Benavidez v. San Jose Police Dept.
(1997) 71 Cal. App. 4th 853.
City of Cotati v. Cashman
(2002) 29 Cal. 4th 69.0.0... 11

D’Amico v. Board of Medical Examiners
10 (1974) 11 Cal. 3d 1
11 Danieley v. Goldmine Ski Associates, Inc.
12
(1990) 218 Cal. App. 3d 111
Exchequer Acceptance Corp. v. Alexandar
13 (1969) 271 Cal. App. 2d 1
14 Far W. Sav. & Loan Ass'n v. McLaughlin
(1988) 201 Cal. App. 3d 67...
15
Gillies v. La Mesa Lemon Grove and Spring Val. Irr. Dist.
16 (1942) 54 Cal. App. 2d 756 11
17 Hironymous v. Hiatt
18
(1921) 52 Cal. App. 727
Manhattan Loft, LLC v. Mercury Liquors, Inc.
19 (2009) 173 Cal. App. 4th 1040
20 Orange County Air Pollution Control Dist. v. Superior Court
(1972) 27 Cal. App. 3d 109
21
PG & E Corp. v. Public Utilities Com'n
22 (2004) 118 Cal. App. 4th 1174 11
23 Prichard v. Kimball
(1923) 190 Cal. 757
24
Rosenthal v. Landau
25 (1949) 90 Cal. App. 2d 310...
26 Sadlier v. Superior Court
(1986) 184 Cal. App. 3d 1050
27
Security Pac. Nat. Bank v. Associated Motor Sales
28 (1980) 106 Cal. App. 3d 171

ul
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, O. RIN THE ALTERNATIVE,
4617494.5 MOTION FOR SUMMARY ADJUDICATIO) IN
Seeley v. Seymour
(1987) 190 Cal. App. 3d 844
Turner v. Turner
(1959) 167 Cal. App. 636
Wilkins v. National Broadcasting Co.
(1999) 71 Cal. App. 4th 1066
Wutzke v. Bill Reid Painting Service, Inc.
(1984) 151 Cal. App. 3d 36 7,9

Statutes

California Civil Code section 3412

California Civil Code section 564.

10 California Code of Civil Procedure § 664.6 .....cscsssssssssssssessssessssessssensseeessessstesssesssessseeneeeseds 8

11 Civil Code ssection-2929.5 ssessssswsycosssssssevvsanseascesisizsssisenreeenssecanesecsnnescccasnceannqeeesenessnneuessssenuasessensene 4

12 Code Civ. Proc. § 437¢

13 Code Civ. Proc. § 437c (f)(1)

14 Code of Civil Procedure section 1060 11
1S Code of Civil Procedure section 564(c)

16 Evid. Code § 604...

17
18

19
20

25
26

ili
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, O| RIN THE ALTERNATIVE,
4617494 5 TION FOR SUMMARY ADJUDICATIO IN
MEMORANDUM OF POINTS AND AUTHORITIES

I SUMMARY OF ARGUMENT — SUMMARY JUDGMENT SHOULD ISSUE

Plaintiff DEUTSCHE BANK NATIONAL TRUST CO, AS TRUSTEE FOR WAMU
MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR1 TRUST (“Deutsche Bank,

as Trustee” or “Plaintiff’) is the current owner of the property located at 12820 Sycamore Avenue,

San Martin, CA 95046 (the “Property”) following a foreclosure sale in October 2009. The Property

was foreclosed due to the default on the loan obtained by Glayds Guysi (“Guysi”), a non-party to the
lawsuit. Soon after the foreclosure sale, Guysi’s brother, defendant Raymond M. Gray, Sr. CR.
Gray”) together with his son, Timothy A. Gray (“T. Gray”) and Elizabeth P. Ancheta (“Ancheta,”

10 and together “Defendants”) recorded a series of fraudulent documents against the Property and filed

11 a lawsuit attempting to invalidate the Trustee’s Deed Upon Sale! (the “Prior Action”), Plaintiff
12 cross-complained in the Prior Action and ultimately, settlement was reached. However, Defendants

13 failed to consummate the settlement and Deutsche Bank, as Trustee moved for judgment under Civ.

14 Proc. § 664.6, which motion was granted.

15 Judgment” was entered in favor of Deutsche Bank, as Trustee in the Prior Action wherein the

16 Judgment confirmed, among other things, that the Trustee’s Deed Upon Sale is valid and

17 enforceable; that Deutsche Bank, as Trustee was entitled to immediate possession of the Property;

18 and upon delivery of possession Deutsche Bank, as Trustee will pay the Defendants the sum of

19 $100,000. Defendants did not vacate the Property, and instead, on June 6, 2016, a Grant Deed was

20 recorded against title to the Property purporting to convey title in the Property from T. Gray and

21 Ancheta to R. Gray (“the 2016 Grant Deed”).

22 In this case, Deutsche Bank, as Trustee is entitled to Cancellation of the 2016 Deed recorded

23 against the Property, Declaratory Relief and judgment in its favor on the Slander of Title claim. The

24 undisputed evidence shows that (1) Deutsche Bank, as Trustee, is owner of the Property; (2)

26 ' The Prior Action was filed in the Superior Court of the State of California, County of Santa Clara, Case Number
110CV179008
27
* See Request for Judicial Notice (“RIN”) exhibit 14 for the Judgment. Defendants filed an appeal of the Judgment,
appellate case number H044032, which is currently pending. While a notice of appeal was filed on June 28, 2016 to date,
28
no opening brief has been filed as Defendants have been granted multiple extensions to file the opening brief. See RIN,
Exhibit 15 for a copy of the court docket of the appellate case.

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
4617494.5 TION FOR SUMMARY ADJUDICATION
Defendants specifically admit in written discovery they did not have authorization to record the

fraudulent documents, including the 2016 Grant Deed; and (3) the 2016 Grant Deed caused to be

recorded by Defendants will seriously injure Deutsche Bank, as Trustee, if left outstanding.

Accordingly, this Court should enter judgment against Defendants for Slander of Title, to cancel the

fraudulent documents, including the 2016 Grant Deed and for a judicial declaration that the

fraudulent 2016 Grant Deed is null and void as of the date of its recordation.

i. STATEMENT OF RELEVANT FACTS

A The Subject Loan in the Amount of $1,100,000.00

Glayds Guysi (“Guysi”) obtained a mortgage loan from Washington Mutual in the amount of

10 $1,100,000.00 as evidenced by a Promissory Note (“Note”) executed by Guysi. To secure

ll repayment of the indebtedness evidenced by the Note, on or about April 13, 2005, Guysi, executed

12 and delivered to Washington Mutual (“Loan”), as beneficiary, a Deed of Trust, in the amount of

13 $1,1000,000. (SSUMF No. 1). The Deed of Trust encumbers the property located at 12820

14 Sycamore Avenue, San Martin, California 95046 (the “Property”). (SSUMF No. 1).

15 B. Due to the Default on the Loan, the Property Was Foreclosed In October 2009

16 Following Guysi’s death, the loan went into default and no further payments were received

17 on the Loan after January 2009. (SSUMF No. 3). On October 23, 2009, the Property was foreclosed

18 and the Property reverted to Deutsche Bank, as Trustee. (SSUMF Nos. 5, 6). A Trustee’s Deed

19 Upon Sale was recorded on November 4, 2009. (SSUMF No. 6).

20 C. Defendants Recorded Multiple Fraudulent and Unauthorized Documents

21 Against the Property

22 Prior to the foreclosure and in an attempt to delay the foreclosure proceedings, R. Gray

23 executed and recorded a fraudulent instrument entitled “Notice of Rescission” purporting to rescind

24 the Notice of Default under the Loan. R. Gray also attempted to substitute himself as the Trustee

25 under the Deed of Trust by recording an unauthorized “Substitution of Trustee and Full

26 Reconveyance” as the purported “Secretary” of “Guysi, Inc.” On December 18, 2009, Raymond

27 signed and recorded yet another unauthorized instrument entitled, “Notice of Rescission of Trustee’s

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, O RIN THE ALTERNATIVE,
48174945, MOTION FOR SUMMARY ADJUDICATION
Deed Upon sale” purporting to rescind the Trustee’s Deed in favor of Deutsche Bank, as Trustee.

See Complaint, § 21.

D Defendants Filed a Lawsuit to Challenge the Foreclosur

On August 6, 2010, Defendants filed a prior action for quiet title and declaratory relief,

attempting to invalidate the Loan and Trustee’s Deed Upon Sale, which was filed in the Superior

Court of the State of California, County of Santa Clara, Case Number 110CV179008 (the “Prior

Action”) (RJN, Exh. 13). In the Prior Action, Deutsche Bank, as Trustee filed a Cross-Complaint

against Defendants seeking, among other things, declaratory relief, affirming the validity of its Deed

of Trust and Trustee’s Deed Upon Sale, and alternatively, for equitable subrogation and imposition

10 of an equitable lien against the Property.

11 E Judgment Was Entered in Favor of Deutsche Bank, as Trustee in the Prior

12 Action and an Appeal is Currently Pending

13 On October 29, 2014, after more than four years of litigation, the parties entered into a

14 settlement before the Court in the Prior Action which provided for the entry of judgment under

15 California Code of Civil Procedure § 664.6. Defendants failed to consummate the settlement and

16 Deutsche Bank, as Trustee filed a motion to enforce the settlement by entry of judgment, which was

17 granted. The Judgment confirmed, among other things: (i) that a deed recorded to secure the Loan in

18 the amount of $1,100,000.00 is valid and enforceable; (ii) that the November 4, 2009 Trustee’s Deed

19 Upon Sale is valid and enforceable; (iii) that Deutsche Bank, as Trustee is entitled to immediate

20 possession of the Property; (iv) that upon delivery of possession of the Property, Deutsche Bank, as

21 Trustee will pay the settling parties the sum of $100,000; and (v) that in an action to enforce the

22. Judgment, the prevailing party is entitled to recover costs and attorneys’ fees. (RIN Exh. 14).

23 Although the Judgment was entered on April 29, 2016, Defendants failed to deliver

24 possession of the Property per the settlement. Instead, on June 6, 2016, the 2016 Grant Deed was

25 recorded against title to the Property purporting to convey title in the Property from T. Gray and

26 Ancheta to R. Gray. Defendants filed an appeal of the Judgment, appellate case number H044032,

27 which is currently pending. While a notice of appeal was filed on June 28, 2016 to date, no opening

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, O IR IN THE ALTERNATIVE,
46174945 IOTION FOR SUMMARY ADJUDICATION
brief has been filed as Defendants have been granted multiple extensions to file the opening brief.

(RIN, Exh. 15)
F. Deutsche Bank, as Trustee Has Been Deprived of Possession of the Property for

More Than Nine Years Since the Trustee’s Sale and More Than Two Years

Since the Entry of Judgmen

Deutsche Bank, as Trustee has been deprived of possession of the Property for nine years

since the foreclosure sale in October 2009. (SSUMF No. 6, 9) Due to the cloud on title and

Defendants’ failure to deliver possession of the Property, the subject lawsuit was commenced against

Defendants. (SSUMF Nos. 8,9). The causes of action for the subject lawsuit are for Cancellation of

10 Instruments, Slander of title, Declaratory and Injunctive Relief, Appointment of Receiver under

ll California Civil Code section 564 to Enforce Judgment and Collect Rental Payments for the

12 Property; and for Appointment of Receiver under Civil Code section 564 to enforcement of right to

13 inspect Property pursuant to Civil Code section 2929.5 and Code of Civil Procedure section 564(c)

14 G Defendants Have Been Residing at the Property Without Making Any Payment:

15 to Deutsche Bank, as Trustee and Also Collecting Rental Incom:

16 In written discovery responses, Defendants admitted that they have been collecting rents for

17 the Property without tendering such amounts to Deutsche Bank, as Trustee. (SSUMF Nos. 13, 14)

18 Specifically, Defendants admitted collecting rental income totaling at least $2,700.00 per month for

19 the Property as of June 2016. (SSUMF No. 13). In 2015, Defendants collected at least $32,400 in
20 rental income in 2015 for the Property. (SSUMF No. 14)

21 Further, Defendants’ recording of unauthorized documents in the public record to cloud

22 Deutsche Bank, as Trustce’s title in and to the Property has been established in Defendants

23 discovery responses. In written discovery responses, Defendants admitted that the recording of the

24 2016 Grant Deed was not authorized, consented to or ratified by Deutsche Bank, as Trustee

a5 (SSUMF No. 12). Further, Defendants also admitted that the recording of the following documents

26 were not authorized, consented to or ratified by Deutsche Bank, as Trustee: (i) a purported Notice of

27 Rescission of Notice of Default and Election to Sell Under Deed of Trust recorded on October 22

28 2009; (ii) a purported Substitution of Trustee and Full Reconveyance recorded on October 23, 2009

NOTICE OF MOTION ANDb MOTION, FOR SUMMARY JUDGMENT, O1 IR IN THE ALTERNATIVE,
46174945, OTION FOR SUMMARY ADJUDICATION
(iii) a purported Notice of Rescission of Trustee’s Deed Upon Sale recorded on December 18, 2009;

(iv) a Grant Deed purportedly conveying the Property from “Guysi Inc.” to “Timothy A. Gray and

Elizabeth P. Ancheta” recorded on October 26, 2009; (v) a purported Deed of Trust with Assignment

of Rents recorded on October 26, 2009. (SSUMF No. 12; Decl. of Chang, at § 9, Exhs. 10-12).

Til. LEGAL STANDARD

A motion for summary judgment or summary adjudication shall be granted when no triable

issue of fact exists or when the issue is one of law and the action can be terminated in favor of the

moving party without the necessity of a trial. See Code Civ. Proc. § 437c; Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal. 4th 826, 843. The purpose of the statute is to promote and protect

10 administration of justice and to expedite litigation by eliminating needless trials. See Exchequer

11 Acceptance Corp. v. Alexandar (1969) 271 Cal. App. 2d 1.

12 A party has met its initial burden of persuasion in moving for summary judgment or

13 summary adjudication of an affirmative defense if it shows that the affirmative defense has no merit.

14 See Code Civ. Proc. § 437c (f)(1); Aguilar v. Atlantic Richfield Co (2001) 25 Cal. 4th 826, 850, n.11

15 (“[O|n summary judgment, the moving party’s burden is more properly one of persuasion rather than

16 of proof, since he must persuade the court that there is no material fact for a reasonable trier of fact

17 to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting

18 as the trier of fact.”) (citation omitted) (emphasis omitted).

19 The issues on summary judgment motions are fixed solely by reference to the pleadings. A

20 court may not consider theories of liability not asserted in the complaint. See Danieley v. Goldmine

21. Ski Associates, Inc. (1990) 218 Cal. App. 3d 111. “The function of the pleadings in a motion for

22 summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations

23 is to determine whether there is any triable issue of fact within the issues delimited by the

24 pleadings.” Sadlier v. Superior Court (1986) 184 Cal. App. 3d 1050, 1055; see also Orange County

25 Air Pollution Control Dist. v. Superior Court (1972) 27 Cal. App. 3d 109, 113-114. As an

26 alternative to summary judgment, a court may award summary adjudication as to one or more causes

27 of action in the complaint. See Code Civ. Proc. § 437c (f).

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
45174945 OTION FOR SUMMARY ADJUDICATION
IV. LEGAL ARGUMENTS

A. No Triable Issue of Material Fact Exists as to Deutsche Bank, as Trustee’s Cause

of Action for Cancellation of Instruments.

The undisputed facts in this case establish that the 2016 Grant Deed, which Deutsche Bank,

as Trustee seeks to have canceled, was executed without authority and is therefore void. Deutsche

Bank, as Trustee’s Complaint requests that the Court enter an order cancelling the unauthorized,

fraudulent document on the ground that the instrument contains false information and affect title to

the property. If left outstanding, the 2016 Grant Deed will result in serious injury to Deutsche Bank,

as Trustee because Deutsche Bank, as Trustee, will be unable to exercise its rights under the

10 Trustee’s Deed Upon Sale to market and sell the Property.

11 Pursuant to California Civil Code section 3412, any written instrument which for any reason

12 is void or voidable and outstanding, and which by reason thereof may result in serious injury or

13 prejudice to the party as to whom it is void or voidable, may be, upon proper application, adjudged

14 to be void, and ordered to be delivered up and canceled. All that is required either in pleading or

15 proof is to show the facts constituting the invalidity of the instrument, whether they involve fraud,

16 duress, accident, mistake, or, for any other reason void or voidable, then the facts showing it to be

17 such, whatever be their nature, should be shown, Hironymous v. Hiatt, (1921) 52 Cal. App. 727,

18 731. (overruled on other grounds). The plaintiff must also show that he will be injured or
19 prejudiced if the instrument is not canceled. Turner v. Turner, (1959) 167 Cal. App. 636, 641. One
20 result of an action to cancel an instrument may be to remove a cloud from title. Prichard v. Kimball,

21 (1923) 190 Cal. 757, 766.

22 Further, the court may give great weight to admissions made in discovery responses and

23 disregard contradictory and self-serving affidavits of that party. Benavidez v. San Jose Police Dept.

24 (1997) 71 Cal. App. 4th 853, 860-861; see also Wilkins v. National Broadcasting Co. (1999) 71 Cal.

25 App. 4th 1066, 1082. An admission against interest by the party opposing a motion for summary

26 judgment is extended a very high credibility value in determining whether or not triable issues of

27 fact exist. D'Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1, 21-22. A presumption
28 which affects the burden of producing evidence and operates in favor of the moving party may

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT. OR IN THE ALTERNATIVE,
46174945 TION FOR SUMMARY ADJUDICATION
eliminate the existence of a triable issue of fact and thus justify summary judgment when no

contradictory evidence is offered by the opposing party; such a presumption requires the trier of fact

to assume the existence of a presumed fact, unless, and until, evidence is introduced by the opposing

party which would support a finding of nonexistence. See Evid. Code § 604; Security Pac. Nat. Bank

v. Associated Motor Sales (1980) 106 Cal. App. 3d 171, 178-170.

1 The _ 2016 Grant_Deed is Void and/or Voidable and Subject to

Cancellation

An instrument executed without authorization of the party with title or interest is void.

Wutzke v. Bill Reid Painting Service, Inc. (1984) 151 Cal. App. 3d 36, 42. Here, the undisputed facts

10 of this case show that the 2016 Grant Deed recorded against the Property were unauthorized and

ll therefore void and of no effect. (SSUMF Nos. 11, 12). At the time the 2016 Grant Deed was
12 recorded, Defendants, and each of them, were on notice of the Trustee’s Deed Upon Sale and

13 Judgment and findings therein, including Deutsche Bank, as Trustee’s right, title and interest in the

14 Property arising therefrom. In written discovery responses, Defendants admit that the recording of

1S the 2016 Grant Deed was not authorized, and also admitted to the unauthorized recording of the

16 Notice of Rescission of Notice of Default and Election to Sell Under Deed of Trust recorded on

17 October 22, 2009, the purported Substitution of Trustee and Full Reconveyance recorded on October

18 23, 2009, the Notice of Rescission of Trustee’s Deed Upon Sale recorded on December 18, 2009, the

19 Grant Deed recorded on October 26, 2009, the Deed of Trust with Assignment of Rents recorded on

20 October 26, 2009. (SSUMF No. 12; Decl. of Chang, at 4 9, Exhs. 10-12).

21 The undisputed facts show that Defendants are not parties to the Loan secured by the deed of

22 trust that was foreclosed. (SSUMF No. 1). Defendants had no right to record the said documents

23 because they were not authorized by Deutsche Bank, as Trustee and Defendants held no title to

24 convey. (SSUMF Nos. 10-12). Indeed, title cannot pass or transfer from one without interest. See
25 Rosenthal y. Landau (1949) 90 Cal. App. 2d 310, 313; see also Civ. Proc. § 1039. As the 2016 Grant

26 Deed was not authorized and was outside of the chain of title, it constitutes a “wild deed.” Far W.
27 Sav. & Loan Ass'n v. McLaughlin (1988) 201 Cal. App. 3d 67, 73. Such an unauthorized wild deed
28

NOTICE OF MOTION AND MOTION FOR SUMMAl! RY JUDGMENT, OR IN THE ALTERNATIVE,
46174945 TION FOR SUMMARY ADJUDICATION
is subject to cancellation; thus, the 2016 Grant Deed is void and of no effect and Deutsche Bank, as

Trustee is entitled to judgment as a matter of law. (SSUMF Nos. 11, 12).

2. The 2016 Grant Deed Will Seriously Injure Deutsche Bank, as Trustee, if

Left Outstanding

If left outstanding, the 2016 Grant Deed will seriously injure Deutsche Bank, as Trustee

because the said documents prevent Deutsche Bank, as Trustee from exercising its rights under the

Trustee’s Deed Upon Sale and Judgment, including but not limited to, taking possession of the

Property and marketing and selling the Property

Here, upon Guysi’s default, Deutsche Bank, as Trustee, invoked the power of sale by

10 recording the Notice of Default and Election to Sell Under Deed of Trust. (SSUME No. 5). Because

1 the default was not cured, a foreclosure sale took place and a Trustee’s Deed Upon Sale was

12 recorded on November 4, 2009. (SSUMF No. 6). After the foreclosure, Defendants filed a lawsuit to

13 attempt to set aside the foreclosure sale. On or about October 29, 2014, the parties to the Prior
14 Action, including Deutsche Bank, as Trustee and Defendants, entered into a settlement that provided

1S for the entry of judgment under California Code of Civil Procedure § 664.6. (SSUMF No. 8: RIN

16 Exh. 14). Defendants failed to consummate the settlement and Deutsche Bank, as Trustee filed a

17 motion to enforce the settlement by entry of judgment, which was granted. The Judgment
18 confirmed, among other things: (i) that a deed of trust recorded in the Santa Clara County Recorder’s

19 Office on April 27, 2005, as Document Number 18343131 is valid and enforceable;” and (ii) that a
20 2009 Trustee’s Deed Upon Sale recorded in the Santa Clara County Recorder’s Office on November

21 4, 2009, as Document Number 20490425, “is valid and enforceable.” Jd.

22 Contrary to the Judgment, Defendants did not deliver possession of the Property and on June

23 6, 2016, Defendants recorded the 2016 Grant Deed. The execution and recordation of the 2016

24 Grant Deed was in direct contradiction of the agreement between the parties and the Judgment

25 entered. Further, the 2016 Grant Deed was not authorized, consented to or ratified by Deutsche
26 Bank, as Trustee. (SSUMF Nos. 11, 12)

27 Consequently, if the 2016 Grant Deed is not canceled, Deutsche Bank, as Trustee will be
28 unable to exercise its rights to the Property, pursuant to Trustee’s Deed upon Sale and Judgment, to

NOTICE OF MOTION ANDI MOTION FOR SUMMARY JUDGMENT, O} R IN THE ALTERNATIVE,
46174045 OTION FOR SUMMARY ADJUDICATIO! IN
possession of the Property and to proceed with marketing and/or selling the Property. This amounts

to a serious injury. See, e.g., Wutzke, 151 Cal. App. 3d at 44. Accordingly, because the 2016 Grant

Deed is void and will cause serious injury to Deutsche Bank, as Trustee if left outstanding, it should

be canceled. Thus, Deutsche Bank, as Trustee, is entitled to summary judgment as to the first cause

of action for Cancellation of Instruments.

B. Deutsche Bank, as Trustee is Entitled to Judgment on the Second Cause of

Action for Slander of Title

Judgment should be entered in favor of Deutsche Bank, as Trustee on the cause of action for

Slander of Title because the undisputed evidence shows the 2016 Grant Deed was false and
10 unauthorized. The elements of slander of title are: (1) a publication; (2) which is without privilege or

11 justification; (3) which is false; and (4) which causes direct and immediate pecuniary loss.

12 Manhattan Lofi, LLC v. Mercury Liquors, Inc. (2009) 173 Cal. App. 4th 1040, 1050-1051. Slander

of title is demonstrated when a party made an unprivileged publication of false information

14 disparaging title to real or personal property, which impairs the vendibility of the property and thus

15 causes monetary loss to the owner. See Seeley v. Seymour (1987) 190 Cal. App. 3d 844, 858. Lack
16 of privilege is an essential element of a claim for slander of title. See, id.
17 The undisputed evidence shows that Deutsche Bank, as Trustee owns the Property and

18 Defendants, each of them, had notice of the Trustee’s Deed Upon Sale and Judgment when the 2016
19 Grant Deed was recorded. Defendants proceeded with recordation of the 2016 Grant Deed without
20 regard for Deutsche Bank, as Trustee’s rights, title or interest in an apparent effort to frustrate and

21 obstruct Deutsche Bank, as Trustee’s rights to obtain possession of the Property. (SSUMF Nos. 11,

22 12). As discussed, the recordation was not authorized, was void and therefore, was not privileged.

23 Consequently, if the 2016 Grant Deed are not canceled, Deutsche Bank, as Trustee will be

24 unable to exercise its rights to the Trustee’s Deed upon Sale to proceed with marketing and/or selling

25 the Property. Thus, this amounts to recordation of an unprivileged and false instrument which
26 directly impairs the immediate marketability and of the Property, indisputably satisfying the first

27 three elements of the claim. Plaintiff has been deprived of possession of the Property for almost nine
28 years since the foreclosure sale in October 2009. (SSUMF No. 9). Plaintiffis entitled to possession,

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, O R IN THE ALTERNATIVE,
4617494.5 (OTION FOR SUMMARY ADJUDICATIO IN
use and control of the Property pursuant to the express language in the TDUS, the Judgment

obtained in the Prior Action and as evidenced by Defendants’ own admissions. Defendants admitted

that the numerous instruments recorded against title were unauthorized instruments. (SSUMF Nos.

8,9).

Deutsche Bank, as Trustee has presented sufficient evidence as to the pecuniary loss

associated with the 2016 Grant Deed as well. In fact, Defendants admitted in written discovery that

they have been collecting rents for the Property without tendering such amounts to Deutsche Bank,

as Trustee. (SSUMF No. 13, 14). Specifically, Defendants admitted collecting rental income totaling

at least $2,700.00 per month for the Property as of June 2016. (SSUMF No. 13). In 2015,

10 Defendants collected at least $32,400.00 in rental income in 2015 for the Property and failed to

ll submit any of the rental income to Deutsche Bank, as Trustee. (SSUMF No. 14)

12 Furthermore, the fair market rental value is approximately $12,000 to $15,000 and the

13 Property value is approximately $1,500,000. Decl. of Hernandez, 4] 12. Plaintiff has also expended

14 significant resources toward taxes and insurance for the Property, totaling $213,061.71 since 2009;

15 yet, has systematically been deprived of its rights to the Property by Defendants. Decl. of
16 Hernandez, {| 13, 14. In fact, October 2017, Plaintiff submitted a tax payment of $23,161.21 to

17 avoid a tax sale. Jd. The payment was for back taxes that were never paid by Defendants for the

18 2008-2009 tax year — before Plaintiff initially obtained title through the TDUS. Id, But for

19 Plaintiff's expenditures, the Property would have been lost at a tax sale due to Defendants’ failure to

20 pay taxes when owed in 2008-2009. Jd. Despite this, Defendants continue to deprive Plaintiff of its

21 right, title and interest in the Property. This amounts to a serious injury as it directly impairs

22, Plaintiff's rights to be able to take advantage of, and enjoy the rights its possesses under the

23 Trustee’s Deed Upon Sale, including Plaintiff's interest in the rents and profits generated by the

24 Property.

25 C. Deutsche Bank, as Trustee is Entitled to Judgment on the Third Cause of Action

26 for Declaratory Relief

27 In the Complaint, Deutsche Bank, as Trustee, is requesting a declaration of its rights with

28 respect to ownership of the Property and the validity of the 2016 Grant Deed. “The fundamental

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, O| RIN THE ALTERNATIVE,
46174945 MOTION FOR SUMMARY ADJUDICATIO IN
basis of declaratory relief is the existence of an actual, present controversy over a proper subject.”

City of Cotati v. Cashman, (2002) 29 Cal. 4th 69, 79. An action for declaratory relief “must be
3 based on an actual controversy with known parameters. If the parameters are as yet unknown, the

controversy is not yet ripe for declaratory relief.” PG & E Corp. v. Public Utilities Com'n, (2004)

118 Cal. App. 4th 1174, 1218. “An action for declaratory relief lies when there is an actual bona

fide dispute between the parties as to a legal obligation arising under the circumstances specified in

section 1060 of the Code of Civil Procedure.” Gillies v. La Mesa Lemon Grove and Spring Val. Irr.
Dist., (1942) 54 Cal. App. 2d 756, 762. The Code of Civil Procedure section 1060 states:

“Any person interested under a written instrument, ... who desires
a declaration of his or her rights ... in respect to, in, over or upon
10 property, may, in cases of actual controversy relating to the
legal rights and duties of the respective parties, bring an original
11
action or cross-complaint in the superior court for a declaration of
12 his or her rights and duties in the premises, including a
determination of any question of construction or validity arising
13 under the instrument or contract. He or she may ask for a
declaration of rights or duties, either alone or with other relief: and
14 the court may make a binding declaration of these rights or duties,
whether or not further relief is or could be claimed at the time. The
15
declaration may be either affirmative or negative in form and
16 effect, and the declaration shall have the force of a final judgment.
The declaration may be had before there has been any breach of
17 the obligation in respect to which said declaration is sought.

18 Here, an actual controversy exists regarding the validity of the 2016 Grant Deed and the
19 parties’ rights to, and interest in, the Property. Deutsche Bank, as Trustee, is the owner under the
20 Trustee’s Deed Upon Sale and Judgment. (SSUF Nos. 8, 9). However, the 2016 Grant Deed cloud

21 Deutsche Bank, as Trustee’s title as owner of the Property. Deutsche Bank, as Trustee, has provided

22 undisputable facts that clearly demonstrate it is the owner of the Property pursuant to a valid
23 foreclosure sale and that the 2016 Grant Deed was unauthorized and therefore null and void. (SSUF
24 Nos. 8, 9, 12). Thus, Deutsche Bank, as Trustee, is entitled to summary judgment as to the third
25 cause of action for Declaratory Relief.
26 Mt
27 Mt

28 Mt

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGM ENT, OR IN THE ALTERNATIVE,
46174946 MOTION FOR SUMMARY ADJUDICATION
1 Vv. CONCLUSION

2 There are no triable issues of material fact concerning Plaintiff's ownership of the Property

and the unauthorized execution of the 2016 Grant Deed recorded against the Property. Based on the

foregoing, Plaintiff respectfully requests that this Court grant its motion for summary judgment, or in

the alternative summary adjudication.

DATED: October 17, 2018 PARKER IBRAHIM & BERG LLP

By: {ZZ
JOHN M. SORICH
MARIEL GERLT-FERRARO
KAITLYN Q. CHANG
Attorneys for Plaintiff
10 DEUTSCHE BANK NATIONAL TRUST CO.
AS TRUSTEE FOR WAMU MORTGAGE
11 PASS-THROUGH CERTIFICATES SERIES
2006-AR1 TRUST
12
13

25
26

12
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, O. RIN THE ALTERNATIVE,
46174945 MOTION FOR SUMMARY ADJUDICATIO IN
PROOF OF SERVICE

(1013A(3) Code Ciy. Proc. Revised 5/1/88)
STATE OF CALIFORNIA, COUNTY OF ORANGE
I am employed in the County of Orange, State of California. I am over the age of
18 and not a party to the within action; my business address is 695 Town Center Drive,
16" Floor, Costa Mesa, California 92626.

On October 17, 2018, I served the foregoing document de

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Motion,Ex Parte: Deutsche Bank National Trust Co. vs Raymond Gray, Sr. et al

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