Preview
09/11/2020
1 ROBERT J. GANDY (State Bar No. 225405)
SEVERSON & WERSON
2 A Professional Corporation
The Atrium
3 19100 Von Karman Avenue, Suite 700
Irvine, California 92612
4 Telephone: (949) 442-7110
Facsimile: (949) 442-7118
5
ELEANOR M. ROMAN (State Bar No. 178736)
6 emr@severson.com
SEVERSON & WERSON
7 A Professional Corporation
One Embarcadero Center, Suite 2600
8 San Francisco, California 94111
Telephone: (415) 398-3344
9 Facsimile: (415) 956-0439
10 Attorneys for Defendant
MORTGAGE ELECTRONIC REGISTRATION
11 SYSTEMS, INC.
12 SUPERIOR COURT OF CALIFORNIA
13 COUNTY OF PLACER
14
15 SVETLANA TISKIY, Case No. SCV0044678
16 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
17 vs. DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION
18 CLEAR RECON CORP.; WILMINGTON SYSTEMS, INC.’S DEMURRER TO THE
SAVINGS FUND SOCIETY, FSB, D/B/A COMPLAINT OF PLAINTIFF
19 CHRISTIANA TRUST, NOT SVETLANA TISKIY
INDIVIDUALLY BUT AS TRUSTEE FOR
20 CARLSBAD FUNDING MORTGAGE Filed concurrently with Notice of Demurrer
TRUST BY RUSHMORE LOAN and Demurrer; Declaration re Meet and
21 MANAGEMENT SERVICES, LLC, IT’S Confer; Request for Judicial Notice
APPOINTED ATTORNEY IN FACT;
22 MORTGAGE ELECTRONIC Date: September 10, 2020
REGISTRATION SYSTEMS, INC.; Time: 8:30 a.m.
23 RUSHMORE LOAN MANAGEMENT Dept.: 42
SERVICES, LLC; all persons known and Judge: Hon. Charles Wachob
24 unknown, including any legal or equitable
right, title estate, lien, or interest in the Action Filed: April 1, 2020
25 property described in the complaint adverse to Trial Date: None Set
plaintiff’s title, or any cloud upon plaintiff’s
26 title thereto; and DOES 1 through 20,
inclusive,
27 Defendants.
28
70000.3660/15436473.1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 MEMORANDUM OF POINTS AND AUTHORITIES
2
I. INTRODUCTION
3
Plaintiff filed this lawsuit to delay defendant WILMINGTON SAVINGS FUND
4
SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE
5
FOR CARLSBAD FUNDING MORTGAGE TRUST ’s (“Wilmington”) attempts to obtain its
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collateral with the assistance of the loan servicer, defendant Rushmore Loan Management
7
Services, LLC (“Rushmore”) after Plaintiff defaulted on her $417,000.00 mortgage loan. But
8
moving Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) has not been
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involved with Plaintiff’s loan since May 31, 2011 when MERS, then the beneficiary under the
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deed of trust recorded against the subject Property to secure Plaintiff’s mortgage loan, was
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assigned by MERS to BAC Home Loans LP fka Countrywide Home Loans (“BAC”) MERS
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simply does not belong in this meritless lawsuit.
13
Defendant MERS was the original beneficiary of the deed of trust recorded on November
14
21, 2006. But as the complaint admits, subsequent assignments of the deed of trust were recorded
15
in 2015 and 2016. There were two additional assignments in 2020. Therefore, MERS has not been
16
connected with the loan for more than eight years. In fact, Plaintiff filed her Complaint on April 1,
17
2020, barely two months shy of nine years since MERS assigned the deed of trust to BAC. Nor
18
was MERS involved in the foreclosure of the subject real property. Instead, the complaint and its
19
exhibits show that the foreclosure (due to Plaintiff’s years of non-payment) proceedings were
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commenced by Wilmington in March 2018 through the trustee under the deed of trust, defendant
21
Clear Recon Corp. In any event, the complaint does not plead any valid legal basis to attack the
22
assignments of deed of trust or the foreclosure proceedings and it fails as a matter of law.
23
MERS does not belong in this case and the Court should sustain MERS’s demurrer to the
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two causes of action alleged against it: 1) the First Cause of Action for Wrongful Foreclosure; and
25
2) the Sixth Cause of Action to Quiet Title and dismiss MERS from this action.1
26
27 1
The caption page of the Complaint lists 5 causes of action: 1) fraud by deceit against
28 Wilmington; 2) fraud by deceit against Rushmore; 3) violation of Business and Professions Code
70000.3660/15436473.1 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 II. FACTS RELEVANT to DEMURRER
2 Plaintiff owns the subject real property located at 6405 Cosmos Court, Rocklin, CA 95677
3 (the “Property”). (Request for Judicial Notice, (“RJN”) Ex. 1, Compl. ¶ 2.) In 2006, Plaintiff
4 borrowed $417,000.00 and secured repayment of the loan with a deed of trust (“Deed of Trust”)
5 recorded against the Property. (Compl. ¶ 31-33, Exs. 1, 2; RJN, Ex. 2.) The beneficiary of the
6 deed of trust was MERS, as nominee for America’s Wholesale Lender, its successors and assigns.
7 (Compl. ¶ 31-33, Exs. 1, 2; RJN, Ex. 2.)
8 After Plaintiff borrowed the funds in 2006 from America’s Wholesale Lender, MERS
9 assigned the Deed of Trust to non-party, BAC in 2011. (Compl. ¶ 38, Ex. 5; RJN, Ex. 3.) Then in
10 2015, non-party, Bank of America, N.A. as successor-by-merger to BAC assigned the Deed of
11 Trust to non-party, Federal National Mortgage Association (“Fannie Mae”) after having
12 substituted defendant, Clear Recon in place of the prior trustee (Compl. ¶ 26; RJN. Exs. 4,5.)
13 In 2016, Fannie Mae assigned the Deed of Trust to Wilmington. (Compl. ¶ 26; RJN Ex. 6.)
14 On March 16, 2018, Wilmington initiated non-judicial foreclosure proceedings by having the
15 trustee under the Deed of Trust, Clear Recon, recorded a Notice of Default (“NOD”). (RJN, Ex.
16 7.) On January 10, 2019, Clear Recon recorded a Notice of Trustee’s Sale (“NOTS”). (RJN, Ex.
17 8.) Thereafter, Wilmington assigned the Deed of Trust to non-party, MTGLQ Investors, LLC
18 (“MTGLQ”) by an assignment recorded February 20, 2020. (RJN, Ex. 9.) The Deed of Trust was
19 further assigned by MTGLQ to non-party, U.S. Bank National Association, not in its Individual
20 Capacity, but Solely as Trustee for the RMAC Trust, Series 2016-CTT (“U.S. Bank, as Trustee.”).
21 (Compl. ¶ 26; RJN, Ex. 10.)
22 Plaintiff complains about a notice of default recorded on April 15, 2009 by the then trustee
23 under the Deed of Trust, Recontrust Company, N.A. (the “2009 NOD”) and a Notice of Trustee’s
24 Sale recorded August 3, 2009 (the “2009 NOTS”). (Compl. ¶¶, 34, 36; RJN, Exs. 11-13.)
25
26
Section 17200 against Rushmore; 4) violation of Business and Professions Code Section 17200
27
against Wilmington; and 5) quiet title against all defendants. However, the substance of the
28 Complaint also includes a first cause of action title, Wrongful Foreclosure against all defendants.
70000.3660/15436473.1 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 However, the 2009 NOD was rescinded by a rescission of Notice of Default recorded March 9,
2 2018. (Compl. ¶¶, 34, 36. Exs. 3, 4; RJN. Ex. 13.)
3 No trustee’s sale of the Property has yet been held pursuant to the foreclosure proceedings
4 commenced by Wilmington in 2018. As noted above, the current beneficiary under the Deed of
5 Trust is non-party, U.S. Bank, as Trustee. (RJN, Ex. 10.)
6 III. STANDARD FOR DEMURRER
7 The purpose of a demurrer is to test “the legal sufficiency of the pleading.” To test the
8 sufficiency of the pleading, a demurrer admits only the truth of material facts properly pleaded—a
9 demurrer does not admit the truth of “contentions, deductions or conclusions.” (Aubry v. Tri-City
10 Hosp. Dist. (1992) 2 Cal.4th 962, 966-967, citing Moore v. Regents of University of California
11 (1990) 51 Cal.3d 120, 125.) Stated differently, a demurrer cuts through the plaintiffs’ rhetoric and
12 asks the simple question: if we were to assume the facts pled to be true, does the plaintiff have a
13 legally recognized claim? Any doubt that the complaint states a valid claim must be resolved
14 against the plaintiff. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578, quoting C. & H.
15 Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062 9 (“‘Doubt in the complaint
16 may be resolved against plaintiff and facts not alleged are presumed not to exist.’”).) A general
17 demurrer “searches the complaint” or the particular count to which it is directed, for any and every
18 failure to state a material fact. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 610.) The
19 absence of any allegation essential to the cause of action makes the complaint vulnerable to a
20 general demurrer. (Id. at 611.) If the facts pleaded are not sufficient to constitute a legally
21 recognized claim, then the complaint shall be dismissed. (Code Civ. Proc., §§ 430.10(e) and
22 430.50.)
23 A court may take judicial notice of “[f]acts and propositions that are not reasonably subject
24 to dispute and are capable of immediate and accurate determination by resort to sources of
25 reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) The courts “will not close their
26 eyes to situations where a complaint contains allegations of fact inconsistent with attached
27 documents, or allegations contrary to facts which are judicially noticed.” (Del E. Webb Corp. v.
28 Structural Materials Co. (1981) 123 Cal.App.3d 593, 829-830.) To turn a blind eye “would be a
70000.3660/15436473.1 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 travesty on justice.” (Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265.)
2 IV. PLAINTIFF’S CLAIMS FAIL AS TO MERS
3 A. The Wrongful Foreclosure Claim Has No Merit
4 The first cause of action is for wrongful foreclosure. As to MERS, it fails as a matter of
5 law for two primary reasons. First, MERS is not involved with the foreclosure proceedings, so
6 Plaintiff cannot meet the required elements of a wrongful foreclosure claim as MERS.
7 Second, the only reason the foreclosure is alleged to have been wrongful is due to the
8 recorded assignments of the deed of trust. But this is a meritless legal argument that does not
9 support a wrongful foreclosure claim.
10 1. MERS is Not Involved in Wilmington’s Foreclosure Proceedings
11 The elements of a wrongful foreclosure cause of action are: “(1) the defendant caused an
12 illegal, fraudulent, or willfully oppressive sale of the property pursuant to a mortgage or deed of
13 Trust; (2) plaintiff suffered prejudice or harm; and (3) plaintiff tendered the amount of the secured
14 indebtedness or is excused from tendering. (Chavez v. IndyMac Mortgage Services (2013) 219
15 Cal.App.4th 1052, 1062.)
16 Plaintiff fails to establish the elements of this claim against MERS. As set forth in the
17 complaint and shown by the recorded documents, after Plaintiff borrowed the funds in 2006,
18 MERS assigned the Deed of Trust to BAC in 2011. (Compl. ¶ 26, Ex. 5.) The Deed of Trust was
19 subsequently assigned two more times, in 2015 and 2016 before Wilmington, years later,
20 commenced non-judicial foreclosure proceedings which have not yet been completed, in 2018.
21 (RJN, Exs. 4-9.) And the Deed of Trust was assigned twice more. (RJN, Exs. 10-11.)
22 Plaintiff does not allege that the foreclosure was wrongful because she was current on the
23 loan with Wilmington or any other serious basis, but rather simply complains of the assignments
24 of deed of trust. But the chain of title from MERS to BAC to Fannie Mae to Wilmington
25 demonstrates that Wilmington had authority to foreclose, so Plaintiff fails to plead that the
26 foreclosure sale was “illegal, fraudulent, or willfully oppressive” in the first place. (Complaint,
27 ¶¶117-125.)
28 Therefore, the first cause of action fails as a matter of law as alleged against MERS.
70000.3660/15436473.1 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 2. The Assignments of Deed of Trust Cannot Support a Cause of Action
2 A borrower does not have standing to challenge an assignment of a deed of trust because
3 the beneficiary of a deed of trust—not the borrower—has the right to assign its interest in the first
4 place and also to ratify any assignment. (Kalnoki v. First American Trustee Servicing Solutions,
5 LLC (2017) 8 Cal.App.5th 23, 43; Turner v. Wells Fargo Bank N.A. (In re Turner) (9th Cir. 2017)
6 859 F.3d 1145, 1148; Yhudai v. IMPAC Funding Corp. (2016) 1 Cal.App.5th 1252, 1259;
7 Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 813.) The plaintiff
8 challenging a non-judicial foreclosure has the burden to prove it was wrongful; allegations that a
9 loan became void, or was improperly transferred to another creditor, or similar speculative claims
10 do not suffice. (See Saterbak v. JPMorgan Chase Bank, N.A., (2016) 245 Cal.App.4th 808, 813-
11 814; Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258; see also, Turner,
12 supra.)
13 Courts also reject these kinds of challenges because the borrowers agreed to MERS’s role
14 as beneficiary under the Deed of Trust and its authority to assign the Deed of Trust when they
15 borrowed the funds and secured repayment by the Deed of Trust. In Siliga v. Mortgage Electronic
16 Registration Systems, Inc., (2013) 219 Cal.App.4th 75, the Court of Appeal held that
17 a trustor who agreed under the terms of the deed of trust that MERS, as the lender’s
nominee, has the authority to exercise all of the rights and interest of the lender,
18 including the right to foreclose, is precluded from maintaining a cause of action
based on the allegation that MERS has no authority to exercise those rights.
19
(Siliga, 219 Cal.App.4th at 83.)
20
The Siliga Court held that a borrower’s agreement in the deed of trust establishes that
21
MERS had the authority to assign its interest. (Id. at 83-84; Hollins v. ReconTrust, N.A. (C.D. Cal.
22
2011) 2011 WL 1743291, *3-*4 (rejecting borrowers’ claims that MERS could not act as
23
beneficiary because “this contention cannot be reconciled with the mortgage-related documents
24
that Plaintiffs executed”); see also, Gomes v. Countrywide Home Loans, Inc. (2011) 192
25
Cal.App.4th 1149, 1157.) Here, the assignment of deed of trust from MERS is an act clearly
26
permitted under the deed of trust signed by Plaintiff. Furthermore, MERS did not require an
27
interest in the note in order to assign the Deed of Trust. Germon v. BAC Home Loans Servicing,
28
70000.3660/15436473.1 6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 L.P. 2011 U.S. Dist. LEXIS 17084, at *5 (S.D. Cal. Feb. 22, 2011); Dancy v. Aurora Loan Servs.,
2 LLC, 2010 U.S. Dist. LEXIS 116513, at *9-10 (N.D. Cal. Nov. 2, 2010).
3 To the extent Plaintiff alleges the assignments were fraudulent and/or void because the
4 original note was not assigned to the assignee, it fails as a matter of law. California law is clear
5 that lenders or their agents can foreclose without production of the original promissory note:
6 “nonjudicial foreclosure provisions d[o] not require the foreclosing party to have an
actual beneficial interest in the deed of trust and promissory note to commence and
7 execute a nonjudicial foreclosure sale.”
8 (Kalnoki v. First Am. Trustee Serv. Solutions, supra, 8 Cal.App.5th 42.)
9 Plaintiff’s wrongful foreclosure claim fails for this reason also.
10 Nor are the assignments or any of the other recorded documents rendered invalid due to
11 the lack of an attached power of attorney. Nowhere in the nonjudicial foreclosure statutes or the
12 deed of trust does it require a beneficiary to provide copies of any power of attorney to the
13 borrower. “‘California appellate courts have refused to read any additional requirements into the
14 non-judicial foreclosure statute’” due to its comprehensive nature. (Gomes v. Countrywide Home
15 Loans, Inc., supra, 192 Cal.App.4th 1149.
16 Even if the assignments were void, which they are not, Plaintiff’s wrongful foreclosure
17 claim still fails because she cannot allege any “prejudice beyond the foreclosure” as required.
18 Indeed, Plaintiff fails to allege: “(1) that the void assignment changed the borrower’s payment
19 obligations; (2) that the void assignment interfered in any manner with the borrower’s payment; or
20 (3) that the true owner of the loan—the entity that actually has the authority to foreclose—would
21 have refrained from foreclosure under the circumstances presented.” Dufresne v. JP Morgan
22 Chase Bank, NA, 2019 U.S. Dist. LEXIS 156220, at * 22 (E.D. Cal. 2019) (internal quotations
23 omitted).
24 Indeed, Plaintiff does not dispute that she defaulted on the Loan or that the alleged void
25 assignments somehow interfered with her ability to make the Loan’s payments. For this reason
26 also, Plaintiff’s wrongful foreclosure claim fails as a matter of law. See, Dufresne, 2019 U.S. Dist.
27 LEXIS at * 22 (Dismissing a wrongful foreclosure claim because “there appears to be no dispute
28
70000.3660/15436473.1 7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 from the record that [borrower] was in default or that the subject property was subject to
2 foreclosure.”).
3 For these additional reason, the first cause of action has no legal merit.
4 3. To The Extent That the Wrongful Foreclosure Claim is Based on the 2009
NOD and the 2009 NOTS, the Claim is Moot Because the 2009 NOD was
5 Rescinded
6
The NOD recorded by Recontrust on April 15, 2009 was rescinded by the Rescission
7
recorded March 9, 2018, and the 2009 NOTS was thereby rendered ineffective. (Compl. ¶¶, 34,
8
36. Exs. 3, 4; RJN. Exs. 11-13.) Therefore, there are no foreclosure proceedings based upon these
9
2009 documents of which to complain. Any wrongful foreclosure claim pertaining to the non-
10
judicial foreclosure proceedings commenced in 2009 is moot. (See, Compl., ¶¶34-36.) In fact,
11
Plaintiff admits that the sale noticed in the 2009 NOTS did not occur. (Compl., ¶36.) To the extent
12
that Plaintiff claims that the 2011 assignment or any subsequent assignments are void or rendered
13
invalid by the 2009 NOD or the 2009 NOTS, such claims also fail because of the Rescission, and
14
moreover because the assignments are wholly unrelated to the 2009 NOD or the 2009 NOTS.
15
(See, Compl., ¶¶34-38 seemingly alleging that the foreclosure sale (which has not occurred) is
16
invalid because that assignments and substitutions of trustee are based on “prior invalid and void
17
executed and recorded documents”.)
18
B. Plaintiff Cannot Quiet Title In The Property In Her Name
19
Plaintiff’s request for an order quieting title to the Property in her name (without repaying
20
her outstanding debt obligation) fails for several reasons. (Compl., ¶¶187-201.)
21
First, Plaintiff fails to plead any basis for claiming title to the Property superior to that of
22
the DOT. Indeed, Plaintiff’s quiet title claim is based upon her failed “holder of the note” theory
23
previously discussed (see, supra, Section III. (A.2.)), and thus cannot support a quiet title claim.
24
(Halajian v. Deutsche Bank Nat. Trust Co. (E.D.Cal. 2013) 2013 WL 593671, at *9.)
25
Second, Plaintiff does not allege that she has tendered the full amount owed on her Loan,
26
so she therefore may not quiet title in her favor. (See, Compl., generally.) California courts have
27
recognized that a trustor cannot “quiet title without discharging his debt. The cloud upon his title
28
70000.3660/15436473.1 8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 persists until the debt is paid.” (citations omitted) (Aguilar v. Bocci (1974) 39 Cal.App.3d 475,
2 477.) Thus, “[a] borrower may not […] quiet title against a secured lender without first paying the
3 outstanding debt on which the mortgage or deed of trust is based.” (Lueras v. BAC Home Loans
4 Serv., LP (2013) 221 Cal.App.4th 49, 86.) Because Plaintiff does not plead that she has repaid her
5 outstanding obligation, her quiet title claim necessarily fails as a matter of law. (Id.)
6 Third, MERS no longer possesses any interest in the Deed of Trust and/or Property due to
7 the assignments of DOT. (Compl., ¶38, Ex. 5; RJN, Exs. 4-11.) Thus, she cannot quiet title against
8 MERS since MERS has no interest in the title to quiet.
9 C. Plaintiff’s Claims Are Barred by the Four-Year Statute of Limitations
10 To the extent that the claims against MERS are based on the assignment the deed of trust
11 by MERS, they fail because the four year statute of limitations for any claim to set aside and
12 cancel the allegedly void assignment has expired. Code Civ. Proc. § 343. (Compl., ¶43 alleging
13 that the 2011 assignment by MERS to BAC should be cancelled.)
14 D. Plaintiff Has Failed to Name Indispensable Parties
15 Beyond the foregoing failed theories, each of Plaintiff’s claims are defective because she
16 failed to include several indispensable parties to this lawsuit. A person is an indispensable party to
17 litigation “if his or her rights must necessarily be affected by the judgment.” (Save Our Bay, Inc. v.
18 San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 692.) Stated differently, “Where the
19 plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest
20 of a third person not joined, that third person is an indispensable party.” (Sierra Club, Inc. v. Cal.
21 Coastal Com. (1979) 95 Cal.App.3d 495, 501.)
22 Here, Plaintiff failed to name the current beneficiary under the Deed of Trust, U.S. Bank as
23 Trustees. (RJN, Ex. 13.) Since U.S. Bank, as Trustee’s interests in the Property would obviously
24 be adversely affected by any orders granting title in the Property in Plaintiff’s name alone, U.S.
25 Bank, as Trustee is an indispensable party to this lawsuit. (See, Save Our Bay, Inc., 42 Cal.
26 App.4th at 692.)
27 For all these reasons, Plaintiff’s claims fail as a matter of law as alleged against MERS and
28 the Court should sustain the demurrer.
70000.3660/15436473.1 9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 V. CONCLUSION
2 All of Plaintiff’s claims as alleged against MERS fail as a matter of law. MERS does not
3 belong in this case about Wilmington’s foreclosure. Therefore, the Court should sustain the
4 demurrer and dismiss MERS from this action.
5
6 DATED: September 3, 2020 SEVERSON & WERSON
A Professional Corporation
7
8
9 By:
ELEANOR M. ROMAN
10
Attorneys for Defendant MORTGAGE ELECTRONIC
11 REGISTRATION SYSTEMS, INC.
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70000.3660/15436473.1 10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
1 PROOF OF SERVICE
2 Svetlana Tiskiy vs. Clear Recon Corp., et al.
PLACER County Superior Court Case No. SCV0044678
3
At the time of service, I was over 18 years of age and not a party to this action. I am
4 employed in the County of Orange, State of California. My business address is The Atrium,
19100 Von Karman Avenue, Suite 700, Irvine, CA 92612.
5
On September 3, 2020, I served true copies of the following document(s):
6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO
7 THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY on the interested parties in this
action as follows:
8
Clifford B. Scherer, Esq. Attorney for Plaintiff
9 Law Offices of Clifford B. Scherer SVETLANA TISKIY
800 Sunrise Ave., Suite C
10 Roseville, CA 95661 Telephone: (916) 298-7390
Email: cliffscherer@cliffordschererlaw.com
11
Peter J. Salmon, Esq. Attorneys for Defendants
12 Jillian A. Benbow, Esq. RUSHMORE LOAN MANAGEMENT
Aldridge Pite, LLP SERVICES, LLC and WILMINGTON
13 4375 Jutland Dr., Suite 200 SAVINGS FUND SOCIETY, FSB
P.O. Box 17935
14 San Diego, CA 92177 Telephone: (858) 750-7600
Facsimile: (619) 590-1385
15 Email: jbenbow@aldridgepite.com
16 [X] BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection and
17 mailing, following our ordinary business practices. I am readily familiar with Severson &
Werson's practice for collecting and processing correspondence for mailing. On the same day that
18 correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
19
I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.
21 Executed on September 3, 2020, at Irvine, California.
22
23
Matthew N. Tran
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70000.3660/15436473.1 11
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF
SVETLANA TISKIY
Preview
09/11/2020 1 ROBERT J. GANDY (State Bar No. 225405) SEVERSON & WERSON 2 A Professional Corporation The Atrium 3 19100 Von Karman Avenue, Suite 700 Irvine, California 92612 4 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 5 ELEANOR M. ROMAN (State Bar No. 178736) 6 emr@severson.com SEVERSON & WERSON 7 A Professional Corporation One Embarcadero Center, Suite 2600 8 San Francisco, California 94111 Telephone: (415) 398-3344 9 Facsimile: (415) 956-0439 10 Attorneys for Defendant MORTGAGE ELECTRONIC REGISTRATION 11 SYSTEMS, INC. 12 SUPERIOR COURT OF CALIFORNIA 13 COUNTY OF PLACER 14 15 SVETLANA TISKIY, Case No. SCV0044678 16 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 17 vs. DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION 18 CLEAR RECON CORP.; WILMINGTON SYSTEMS, INC.’S DEMURRER TO THE SAVINGS FUND SOCIETY, FSB, D/B/A COMPLAINT OF PLAINTIFF 19 CHRISTIANA TRUST, NOT SVETLANA TISKIY INDIVIDUALLY BUT AS TRUSTEE FOR 20 CARLSBAD FUNDING MORTGAGE Filed concurrently with Notice of Demurrer TRUST BY RUSHMORE LOAN and Demurrer; Declaration re Meet and 21 MANAGEMENT SERVICES, LLC, IT’S Confer; Request for Judicial Notice APPOINTED ATTORNEY IN FACT; 22 MORTGAGE ELECTRONIC Date: September 10, 2020 REGISTRATION SYSTEMS, INC.; Time: 8:30 a.m. 23 RUSHMORE LOAN MANAGEMENT Dept.: 42 SERVICES, LLC; all persons known and Judge: Hon. Charles Wachob 24 unknown, including any legal or equitable right, title estate, lien, or interest in the Action Filed: April 1, 2020 25 property described in the complaint adverse to Trial Date: None Set plaintiff’s title, or any cloud upon plaintiff’s 26 title thereto; and DOES 1 through 20, inclusive, 27 Defendants. 28 70000.3660/15436473.1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff filed this lawsuit to delay defendant WILMINGTON SAVINGS FUND 4 SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE 5 FOR CARLSBAD FUNDING MORTGAGE TRUST ’s (“Wilmington”) attempts to obtain its 6 collateral with the assistance of the loan servicer, defendant Rushmore Loan Management 7 Services, LLC (“Rushmore”) after Plaintiff defaulted on her $417,000.00 mortgage loan. But 8 moving Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) has not been 9 involved with Plaintiff’s loan since May 31, 2011 when MERS, then the beneficiary under the 10 deed of trust recorded against the subject Property to secure Plaintiff’s mortgage loan, was 11 assigned by MERS to BAC Home Loans LP fka Countrywide Home Loans (“BAC”) MERS 12 simply does not belong in this meritless lawsuit. 13 Defendant MERS was the original beneficiary of the deed of trust recorded on November 14 21, 2006. But as the complaint admits, subsequent assignments of the deed of trust were recorded 15 in 2015 and 2016. There were two additional assignments in 2020. Therefore, MERS has not been 16 connected with the loan for more than eight years. In fact, Plaintiff filed her Complaint on April 1, 17 2020, barely two months shy of nine years since MERS assigned the deed of trust to BAC. Nor 18 was MERS involved in the foreclosure of the subject real property. Instead, the complaint and its 19 exhibits show that the foreclosure (due to Plaintiff’s years of non-payment) proceedings were 20 commenced by Wilmington in March 2018 through the trustee under the deed of trust, defendant 21 Clear Recon Corp. In any event, the complaint does not plead any valid legal basis to attack the 22 assignments of deed of trust or the foreclosure proceedings and it fails as a matter of law. 23 MERS does not belong in this case and the Court should sustain MERS’s demurrer to the 24 two causes of action alleged against it: 1) the First Cause of Action for Wrongful Foreclosure; and 25 2) the Sixth Cause of Action to Quiet Title and dismiss MERS from this action.1 26 27 1 The caption page of the Complaint lists 5 causes of action: 1) fraud by deceit against 28 Wilmington; 2) fraud by deceit against Rushmore; 3) violation of Business and Professions Code 70000.3660/15436473.1 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 II. FACTS RELEVANT to DEMURRER 2 Plaintiff owns the subject real property located at 6405 Cosmos Court, Rocklin, CA 95677 3 (the “Property”). (Request for Judicial Notice, (“RJN”) Ex. 1, Compl. ¶ 2.) In 2006, Plaintiff 4 borrowed $417,000.00 and secured repayment of the loan with a deed of trust (“Deed of Trust”) 5 recorded against the Property. (Compl. ¶ 31-33, Exs. 1, 2; RJN, Ex. 2.) The beneficiary of the 6 deed of trust was MERS, as nominee for America’s Wholesale Lender, its successors and assigns. 7 (Compl. ¶ 31-33, Exs. 1, 2; RJN, Ex. 2.) 8 After Plaintiff borrowed the funds in 2006 from America’s Wholesale Lender, MERS 9 assigned the Deed of Trust to non-party, BAC in 2011. (Compl. ¶ 38, Ex. 5; RJN, Ex. 3.) Then in 10 2015, non-party, Bank of America, N.A. as successor-by-merger to BAC assigned the Deed of 11 Trust to non-party, Federal National Mortgage Association (“Fannie Mae”) after having 12 substituted defendant, Clear Recon in place of the prior trustee (Compl. ¶ 26; RJN. Exs. 4,5.) 13 In 2016, Fannie Mae assigned the Deed of Trust to Wilmington. (Compl. ¶ 26; RJN Ex. 6.) 14 On March 16, 2018, Wilmington initiated non-judicial foreclosure proceedings by having the 15 trustee under the Deed of Trust, Clear Recon, recorded a Notice of Default (“NOD”). (RJN, Ex. 16 7.) On January 10, 2019, Clear Recon recorded a Notice of Trustee’s Sale (“NOTS”). (RJN, Ex. 17 8.) Thereafter, Wilmington assigned the Deed of Trust to non-party, MTGLQ Investors, LLC 18 (“MTGLQ”) by an assignment recorded February 20, 2020. (RJN, Ex. 9.) The Deed of Trust was 19 further assigned by MTGLQ to non-party, U.S. Bank National Association, not in its Individual 20 Capacity, but Solely as Trustee for the RMAC Trust, Series 2016-CTT (“U.S. Bank, as Trustee.”). 21 (Compl. ¶ 26; RJN, Ex. 10.) 22 Plaintiff complains about a notice of default recorded on April 15, 2009 by the then trustee 23 under the Deed of Trust, Recontrust Company, N.A. (the “2009 NOD”) and a Notice of Trustee’s 24 Sale recorded August 3, 2009 (the “2009 NOTS”). (Compl. ¶¶, 34, 36; RJN, Exs. 11-13.) 25 26 Section 17200 against Rushmore; 4) violation of Business and Professions Code Section 17200 27 against Wilmington; and 5) quiet title against all defendants. However, the substance of the 28 Complaint also includes a first cause of action title, Wrongful Foreclosure against all defendants. 70000.3660/15436473.1 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 However, the 2009 NOD was rescinded by a rescission of Notice of Default recorded March 9, 2 2018. (Compl. ¶¶, 34, 36. Exs. 3, 4; RJN. Ex. 13.) 3 No trustee’s sale of the Property has yet been held pursuant to the foreclosure proceedings 4 commenced by Wilmington in 2018. As noted above, the current beneficiary under the Deed of 5 Trust is non-party, U.S. Bank, as Trustee. (RJN, Ex. 10.) 6 III. STANDARD FOR DEMURRER 7 The purpose of a demurrer is to test “the legal sufficiency of the pleading.” To test the 8 sufficiency of the pleading, a demurrer admits only the truth of material facts properly pleaded—a 9 demurrer does not admit the truth of “contentions, deductions or conclusions.” (Aubry v. Tri-City 10 Hosp. Dist. (1992) 2 Cal.4th 962, 966-967, citing Moore v. Regents of University of California 11 (1990) 51 Cal.3d 120, 125.) Stated differently, a demurrer cuts through the plaintiffs’ rhetoric and 12 asks the simple question: if we were to assume the facts pled to be true, does the plaintiff have a 13 legally recognized claim? Any doubt that the complaint states a valid claim must be resolved 14 against the plaintiff. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578, quoting C. & H. 15 Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062 9 (“‘Doubt in the complaint 16 may be resolved against plaintiff and facts not alleged are presumed not to exist.’”).) A general 17 demurrer “searches the complaint” or the particular count to which it is directed, for any and every 18 failure to state a material fact. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 610.) The 19 absence of any allegation essential to the cause of action makes the complaint vulnerable to a 20 general demurrer. (Id. at 611.) If the facts pleaded are not sufficient to constitute a legally 21 recognized claim, then the complaint shall be dismissed. (Code Civ. Proc., §§ 430.10(e) and 22 430.50.) 23 A court may take judicial notice of “[f]acts and propositions that are not reasonably subject 24 to dispute and are capable of immediate and accurate determination by resort to sources of 25 reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) The courts “will not close their 26 eyes to situations where a complaint contains allegations of fact inconsistent with attached 27 documents, or allegations contrary to facts which are judicially noticed.” (Del E. Webb Corp. v. 28 Structural Materials Co. (1981) 123 Cal.App.3d 593, 829-830.) To turn a blind eye “would be a 70000.3660/15436473.1 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 travesty on justice.” (Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265.) 2 IV. PLAINTIFF’S CLAIMS FAIL AS TO MERS 3 A. The Wrongful Foreclosure Claim Has No Merit 4 The first cause of action is for wrongful foreclosure. As to MERS, it fails as a matter of 5 law for two primary reasons. First, MERS is not involved with the foreclosure proceedings, so 6 Plaintiff cannot meet the required elements of a wrongful foreclosure claim as MERS. 7 Second, the only reason the foreclosure is alleged to have been wrongful is due to the 8 recorded assignments of the deed of trust. But this is a meritless legal argument that does not 9 support a wrongful foreclosure claim. 10 1. MERS is Not Involved in Wilmington’s Foreclosure Proceedings 11 The elements of a wrongful foreclosure cause of action are: “(1) the defendant caused an 12 illegal, fraudulent, or willfully oppressive sale of the property pursuant to a mortgage or deed of 13 Trust; (2) plaintiff suffered prejudice or harm; and (3) plaintiff tendered the amount of the secured 14 indebtedness or is excused from tendering. (Chavez v. IndyMac Mortgage Services (2013) 219 15 Cal.App.4th 1052, 1062.) 16 Plaintiff fails to establish the elements of this claim against MERS. As set forth in the 17 complaint and shown by the recorded documents, after Plaintiff borrowed the funds in 2006, 18 MERS assigned the Deed of Trust to BAC in 2011. (Compl. ¶ 26, Ex. 5.) The Deed of Trust was 19 subsequently assigned two more times, in 2015 and 2016 before Wilmington, years later, 20 commenced non-judicial foreclosure proceedings which have not yet been completed, in 2018. 21 (RJN, Exs. 4-9.) And the Deed of Trust was assigned twice more. (RJN, Exs. 10-11.) 22 Plaintiff does not allege that the foreclosure was wrongful because she was current on the 23 loan with Wilmington or any other serious basis, but rather simply complains of the assignments 24 of deed of trust. But the chain of title from MERS to BAC to Fannie Mae to Wilmington 25 demonstrates that Wilmington had authority to foreclose, so Plaintiff fails to plead that the 26 foreclosure sale was “illegal, fraudulent, or willfully oppressive” in the first place. (Complaint, 27 ¶¶117-125.) 28 Therefore, the first cause of action fails as a matter of law as alleged against MERS. 70000.3660/15436473.1 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 2. The Assignments of Deed of Trust Cannot Support a Cause of Action 2 A borrower does not have standing to challenge an assignment of a deed of trust because 3 the beneficiary of a deed of trust—not the borrower—has the right to assign its interest in the first 4 place and also to ratify any assignment. (Kalnoki v. First American Trustee Servicing Solutions, 5 LLC (2017) 8 Cal.App.5th 23, 43; Turner v. Wells Fargo Bank N.A. (In re Turner) (9th Cir. 2017) 6 859 F.3d 1145, 1148; Yhudai v. IMPAC Funding Corp. (2016) 1 Cal.App.5th 1252, 1259; 7 Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 813.) The plaintiff 8 challenging a non-judicial foreclosure has the burden to prove it was wrongful; allegations that a 9 loan became void, or was improperly transferred to another creditor, or similar speculative claims 10 do not suffice. (See Saterbak v. JPMorgan Chase Bank, N.A., (2016) 245 Cal.App.4th 808, 813- 11 814; Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258; see also, Turner, 12 supra.) 13 Courts also reject these kinds of challenges because the borrowers agreed to MERS’s role 14 as beneficiary under the Deed of Trust and its authority to assign the Deed of Trust when they 15 borrowed the funds and secured repayment by the Deed of Trust. In Siliga v. Mortgage Electronic 16 Registration Systems, Inc., (2013) 219 Cal.App.4th 75, the Court of Appeal held that 17 a trustor who agreed under the terms of the deed of trust that MERS, as the lender’s nominee, has the authority to exercise all of the rights and interest of the lender, 18 including the right to foreclose, is precluded from maintaining a cause of action based on the allegation that MERS has no authority to exercise those rights. 19 (Siliga, 219 Cal.App.4th at 83.) 20 The Siliga Court held that a borrower’s agreement in the deed of trust establishes that 21 MERS had the authority to assign its interest. (Id. at 83-84; Hollins v. ReconTrust, N.A. (C.D. Cal. 22 2011) 2011 WL 1743291, *3-*4 (rejecting borrowers’ claims that MERS could not act as 23 beneficiary because “this contention cannot be reconciled with the mortgage-related documents 24 that Plaintiffs executed”); see also, Gomes v. Countrywide Home Loans, Inc. (2011) 192 25 Cal.App.4th 1149, 1157.) Here, the assignment of deed of trust from MERS is an act clearly 26 permitted under the deed of trust signed by Plaintiff. Furthermore, MERS did not require an 27 interest in the note in order to assign the Deed of Trust. Germon v. BAC Home Loans Servicing, 28 70000.3660/15436473.1 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 L.P. 2011 U.S. Dist. LEXIS 17084, at *5 (S.D. Cal. Feb. 22, 2011); Dancy v. Aurora Loan Servs., 2 LLC, 2010 U.S. Dist. LEXIS 116513, at *9-10 (N.D. Cal. Nov. 2, 2010). 3 To the extent Plaintiff alleges the assignments were fraudulent and/or void because the 4 original note was not assigned to the assignee, it fails as a matter of law. California law is clear 5 that lenders or their agents can foreclose without production of the original promissory note: 6 “nonjudicial foreclosure provisions d[o] not require the foreclosing party to have an actual beneficial interest in the deed of trust and promissory note to commence and 7 execute a nonjudicial foreclosure sale.” 8 (Kalnoki v. First Am. Trustee Serv. Solutions, supra, 8 Cal.App.5th 42.) 9 Plaintiff’s wrongful foreclosure claim fails for this reason also. 10 Nor are the assignments or any of the other recorded documents rendered invalid due to 11 the lack of an attached power of attorney. Nowhere in the nonjudicial foreclosure statutes or the 12 deed of trust does it require a beneficiary to provide copies of any power of attorney to the 13 borrower. “‘California appellate courts have refused to read any additional requirements into the 14 non-judicial foreclosure statute’” due to its comprehensive nature. (Gomes v. Countrywide Home 15 Loans, Inc., supra, 192 Cal.App.4th 1149. 16 Even if the assignments were void, which they are not, Plaintiff’s wrongful foreclosure 17 claim still fails because she cannot allege any “prejudice beyond the foreclosure” as required. 18 Indeed, Plaintiff fails to allege: “(1) that the void assignment changed the borrower’s payment 19 obligations; (2) that the void assignment interfered in any manner with the borrower’s payment; or 20 (3) that the true owner of the loan—the entity that actually has the authority to foreclose—would 21 have refrained from foreclosure under the circumstances presented.” Dufresne v. JP Morgan 22 Chase Bank, NA, 2019 U.S. Dist. LEXIS 156220, at * 22 (E.D. Cal. 2019) (internal quotations 23 omitted). 24 Indeed, Plaintiff does not dispute that she defaulted on the Loan or that the alleged void 25 assignments somehow interfered with her ability to make the Loan’s payments. For this reason 26 also, Plaintiff’s wrongful foreclosure claim fails as a matter of law. See, Dufresne, 2019 U.S. Dist. 27 LEXIS at * 22 (Dismissing a wrongful foreclosure claim because “there appears to be no dispute 28 70000.3660/15436473.1 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 from the record that [borrower] was in default or that the subject property was subject to 2 foreclosure.”). 3 For these additional reason, the first cause of action has no legal merit. 4 3. To The Extent That the Wrongful Foreclosure Claim is Based on the 2009 NOD and the 2009 NOTS, the Claim is Moot Because the 2009 NOD was 5 Rescinded 6 The NOD recorded by Recontrust on April 15, 2009 was rescinded by the Rescission 7 recorded March 9, 2018, and the 2009 NOTS was thereby rendered ineffective. (Compl. ¶¶, 34, 8 36. Exs. 3, 4; RJN. Exs. 11-13.) Therefore, there are no foreclosure proceedings based upon these 9 2009 documents of which to complain. Any wrongful foreclosure claim pertaining to the non- 10 judicial foreclosure proceedings commenced in 2009 is moot. (See, Compl., ¶¶34-36.) In fact, 11 Plaintiff admits that the sale noticed in the 2009 NOTS did not occur. (Compl., ¶36.) To the extent 12 that Plaintiff claims that the 2011 assignment or any subsequent assignments are void or rendered 13 invalid by the 2009 NOD or the 2009 NOTS, such claims also fail because of the Rescission, and 14 moreover because the assignments are wholly unrelated to the 2009 NOD or the 2009 NOTS. 15 (See, Compl., ¶¶34-38 seemingly alleging that the foreclosure sale (which has not occurred) is 16 invalid because that assignments and substitutions of trustee are based on “prior invalid and void 17 executed and recorded documents”.) 18 B. Plaintiff Cannot Quiet Title In The Property In Her Name 19 Plaintiff’s request for an order quieting title to the Property in her name (without repaying 20 her outstanding debt obligation) fails for several reasons. (Compl., ¶¶187-201.) 21 First, Plaintiff fails to plead any basis for claiming title to the Property superior to that of 22 the DOT. Indeed, Plaintiff’s quiet title claim is based upon her failed “holder of the note” theory 23 previously discussed (see, supra, Section III. (A.2.)), and thus cannot support a quiet title claim. 24 (Halajian v. Deutsche Bank Nat. Trust Co. (E.D.Cal. 2013) 2013 WL 593671, at *9.) 25 Second, Plaintiff does not allege that she has tendered the full amount owed on her Loan, 26 so she therefore may not quiet title in her favor. (See, Compl., generally.) California courts have 27 recognized that a trustor cannot “quiet title without discharging his debt. The cloud upon his title 28 70000.3660/15436473.1 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 persists until the debt is paid.” (citations omitted) (Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 2 477.) Thus, “[a] borrower may not […] quiet title against a secured lender without first paying the 3 outstanding debt on which the mortgage or deed of trust is based.” (Lueras v. BAC Home Loans 4 Serv., LP (2013) 221 Cal.App.4th 49, 86.) Because Plaintiff does not plead that she has repaid her 5 outstanding obligation, her quiet title claim necessarily fails as a matter of law. (Id.) 6 Third, MERS no longer possesses any interest in the Deed of Trust and/or Property due to 7 the assignments of DOT. (Compl., ¶38, Ex. 5; RJN, Exs. 4-11.) Thus, she cannot quiet title against 8 MERS since MERS has no interest in the title to quiet. 9 C. Plaintiff’s Claims Are Barred by the Four-Year Statute of Limitations 10 To the extent that the claims against MERS are based on the assignment the deed of trust 11 by MERS, they fail because the four year statute of limitations for any claim to set aside and 12 cancel the allegedly void assignment has expired. Code Civ. Proc. § 343. (Compl., ¶43 alleging 13 that the 2011 assignment by MERS to BAC should be cancelled.) 14 D. Plaintiff Has Failed to Name Indispensable Parties 15 Beyond the foregoing failed theories, each of Plaintiff’s claims are defective because she 16 failed to include several indispensable parties to this lawsuit. A person is an indispensable party to 17 litigation “if his or her rights must necessarily be affected by the judgment.” (Save Our Bay, Inc. v. 18 San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 692.) Stated differently, “Where the 19 plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest 20 of a third person not joined, that third person is an indispensable party.” (Sierra Club, Inc. v. Cal. 21 Coastal Com. (1979) 95 Cal.App.3d 495, 501.) 22 Here, Plaintiff failed to name the current beneficiary under the Deed of Trust, U.S. Bank as 23 Trustees. (RJN, Ex. 13.) Since U.S. Bank, as Trustee’s interests in the Property would obviously 24 be adversely affected by any orders granting title in the Property in Plaintiff’s name alone, U.S. 25 Bank, as Trustee is an indispensable party to this lawsuit. (See, Save Our Bay, Inc., 42 Cal. 26 App.4th at 692.) 27 For all these reasons, Plaintiff’s claims fail as a matter of law as alleged against MERS and 28 the Court should sustain the demurrer. 70000.3660/15436473.1 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 V. CONCLUSION 2 All of Plaintiff’s claims as alleged against MERS fail as a matter of law. MERS does not 3 belong in this case about Wilmington’s foreclosure. Therefore, the Court should sustain the 4 demurrer and dismiss MERS from this action. 5 6 DATED: September 3, 2020 SEVERSON & WERSON A Professional Corporation 7 8 9 By: ELEANOR M. ROMAN 10 Attorneys for Defendant MORTGAGE ELECTRONIC 11 REGISTRATION SYSTEMS, INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3660/15436473.1 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY 1 PROOF OF SERVICE 2 Svetlana Tiskiy vs. Clear Recon Corp., et al. PLACER County Superior Court Case No. SCV0044678 3 At the time of service, I was over 18 years of age and not a party to this action. I am 4 employed in the County of Orange, State of California. My business address is The Atrium, 19100 Von Karman Avenue, Suite 700, Irvine, CA 92612. 5 On September 3, 2020, I served true copies of the following document(s): 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO 7 THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY on the interested parties in this action as follows: 8 Clifford B. Scherer, Esq. Attorney for Plaintiff 9 Law Offices of Clifford B. Scherer SVETLANA TISKIY 800 Sunrise Ave., Suite C 10 Roseville, CA 95661 Telephone: (916) 298-7390 Email: cliffscherer@cliffordschererlaw.com 11 Peter J. Salmon, Esq. Attorneys for Defendants 12 Jillian A. Benbow, Esq. RUSHMORE LOAN MANAGEMENT Aldridge Pite, LLP SERVICES, LLC and WILMINGTON 13 4375 Jutland Dr., Suite 200 SAVINGS FUND SOCIETY, FSB P.O. Box 17935 14 San Diego, CA 92177 Telephone: (858) 750-7600 Facsimile: (619) 590-1385 15 Email: jbenbow@aldridgepite.com 16 [X] BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and 17 mailing, following our ordinary business practices. I am readily familiar with Severson & Werson's practice for collecting and processing correspondence for mailing. On the same day that 18 correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. 21 Executed on September 3, 2020, at Irvine, California. 22 23 Matthew N. Tran 24 25 26 27 28 70000.3660/15436473.1 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO THE COMPLAINT OF PLAINTIFF SVETLANA TISKIY