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Opposition Demurrer SLS US Bank

Opposition Demurrer SLS US Bank

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Published by Cameron Totten
This Opposition is in response to a Demurrer to a wrongful foreclosure matter. Specifically, it addresses the standing of the foreclosing trustee and alleged beneficiary to foreclose on the property. Here, MERS allegedly assigned the deed of trust to U.S. Bank as trustee of a mortgage backed securities fund. However, at the time MERS made the assignment, it was not registered to do business in California and was exempt from registration pursuant to Corporations Code 191(c). As a result, MERS's assignment is voidable. Additionally, as is common in California foreclosure cases, Defendants argue that Plaintiffs' unlawful detainer action which evicted them from the property is res judicata to any claims brought in a civil action. The issue raises a common problem in this area as unlawful detainer judges often refuse to adjudicate issues of title. Lenders would like that refusal to be a bar to raising the issues in civil court. Finally, foreclosing lenders greatly rely on the tender rule to immunize them from any wrongful conduct. If applied as they propose, lenders would essentially be immune from following any laws regarding foreclosure as it is the rare case that a borrower who cannot pay their mortgage would be able to tender the entire debt owed (or the amount of the sale at the foreclosure sale) prior to bringing an action. Of course, this is never an issue in judicial foreclosure states where a lender must establish that they have standing and the right to foreclose prior to doing so.
This Opposition is in response to a Demurrer to a wrongful foreclosure matter. Specifically, it addresses the standing of the foreclosing trustee and alleged beneficiary to foreclose on the property. Here, MERS allegedly assigned the deed of trust to U.S. Bank as trustee of a mortgage backed securities fund. However, at the time MERS made the assignment, it was not registered to do business in California and was exempt from registration pursuant to Corporations Code 191(c). As a result, MERS's assignment is voidable. Additionally, as is common in California foreclosure cases, Defendants argue that Plaintiffs' unlawful detainer action which evicted them from the property is res judicata to any claims brought in a civil action. The issue raises a common problem in this area as unlawful detainer judges often refuse to adjudicate issues of title. Lenders would like that refusal to be a bar to raising the issues in civil court. Finally, foreclosing lenders greatly rely on the tender rule to immunize them from any wrongful conduct. If applied as they propose, lenders would essentially be immune from following any laws regarding foreclosure as it is the rare case that a borrower who cannot pay their mortgage would be able to tender the entire debt owed (or the amount of the sale at the foreclosure sale) prior to bringing an action. Of course, this is never an issue in judicial foreclosure states where a lender must establish that they have standing and the right to foreclose prior to doing so.

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Published by: Cameron Totten on Jul 18, 2010
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12345678910111213141516171819202122232425262728Cameron H. Totten, Esq. (SBN 180765)Law Offices of Cameron H. Totten620 N. Brand Blvd., Ste. 405Glendale, California 91203Telephone (818) 483-5795Facsimile (818) 230-9817Attorney for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF LOS ANGELES
 PLAINTIFFS,vs.1SPECIALIZED LOAN SERVICING, LLC;MTC FINANCIAL INC., DBA TRUSTEECORPS; U.S. BANK NATIONALASSOCIATION AS INDENTURETRUSTEE, ON BEHALF OF THEHOLDERS OF THE TERWIN MORTGAGETRUST 2007-QHL1 ASSET-BACKEDSECURITIES, SERIES 2007-QHL1,WITHOUT RECOURSE; MORTGAGEELECTRONIC REGISTRATION SYSTEMS,INC.; ALL PERSONS UNKNOWN,CLAIMING ANY LEGAL OR EQUITABLERIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTYDESCRIBED IN THE COMPLAINTADVERSE TO PLAINTIFFS’ TITLE, OR ANY CLOUD ON PLAINTIFFS’ TITLETHERETO; and DOES 1-20, INCLUSIVE,DEFENDANTS.)))))))))))))))))))))))))))Case No:
PLAINTIFFS’ OPPOSITION TODEFENDANTS SPECIALIZED LOANSERVICING, LLC AND U.S. BANK NATIONAL ASSOCIATION’SDEMURRER TO PLAINTIFFS’SECOND AMENDED COMPLAINT
)Plaintiffs hereby submit their Opposition to Defendants Specialized Loan Servicing,LLC (“SLS”) and U.S. BANK, N.A., as Indenture Trustee, on Behalf of the Holders of theTerwin Mortgage Trust 2007-QHL1 Asset-Backed Securities, Series 2007-QHL1, WithoutRecourse (“U.S. Bank”)’s Demurrer as follows:
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT1
 
 
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TABLE OF CONTENTS
I. INTRODUCTION .
..........................................6
II. THE DOCTRINE OF RES JUDICATA DOES NOT APPLY TO ANY OFPLAINTIFFS’ CAUSES OF ACTION
.
..................................6
III. THE TENDER RULE DOES NOT APPLY HERE
........................8
A. THE FORECLOSURE SALE WAS VOID, NOT VOIDABLE
..........8
B. IT WOULD BE INEQUITABLE TO APPLY THE TENDER RULE HERE
.9
1. Where the Trustee’s Deed Upon Sale Transfers by Credit Bid to theBeneficiary, Tender of the Full Debt is not Appropriate
.......................9
IV. PLAINTIFFS HAVE PROPERLY ALLEGED A CAUSES OF ACTION AGAINSTDEFENDANTS FOR VIOLATION OF
CALIFORNIA BUSINESS AND
 
PROFESSIONS CODE SECTION 17200
............................11
V. PLAINTIFFS HAVE PROPERLY ALLEGED CAUSES OF ACTION FOR BREACH OF CONTRACT AND BREACH OF THE IMPLIED COVENAT OF GOODFAITH AND FAIR DEALING AGAINST DEFENDANTS
.
...................13
VI. UNJUST ENRICHMENT IS A CAUSE OF ACTION
 
....................14
VII. PLAINTIFFS’ CANCELLATION CAUSES OF ACTION ARE PROPERLY PLEAD
.............................................................. 14
A. THE EXCEPTION SET FORTH IN CORPORATIONS CODE SECTION 191DOES NOT APPLY TO MERS
.
..................................... 15
B. PLAINTIFFS DO NOT HAVE TO RETURN THE PRINCIPAL AMOUNT OFTHE LOAN PRIOR TO FILING A COMPLAINT TO RESCIND THE DEED OF TRUSTPURSUANT TO REVENUE AND TAXATION CODE SECTION 23304.5
........15
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT2
 
 
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C. DEFENDANTS MUST ESTABLISH THAT THEY HAVE A BENEFICIALINTEREST IN THE NOTE
.
........................................ 16
VIII. PLAINTIFFS HAVE PROPERLY PLEAD A CAUSE OF ACTION FOR FRAUD
........................................................17
IX. PLAINTIFFS’ HAVE PROPERLY PLEAD A CAUSE OF ACTION FOR NEGLIGENCE .
................................................18
X. CONCLUSION . .
............................................19
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT3
 

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Walter Chek is liar and a thief...Do NOT trust anything he says or claims to be able to do nor does his legal processes such as the above work. Also do not work with an associate PJ Stuart who is totally toxic!!! You have been warned. Any one considering working with these two should call me for the details. Bob Lester 505 292-0267
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