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Herrera v. Deutsche Bank - CA 3rd Appellate District[1]

Herrera v. Deutsche Bank - CA 3rd Appellate District[1]

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Published by Stephen Carr
Appeals court rules Deutsche claims based on hearsay.
May 5, 2011.
Appeals court rules Deutsche claims based on hearsay.
May 5, 2011.

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Published by: Stephen Carr on Jun 06, 2011
Copyright:Attribution Non-commercial

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Filed 5/31/11 Herrera v. Deutsche Bank Nat. Trust CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified forpublication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publicationor ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIATHIRD APPELLATE DISTRICT(El Dorado)----ROBERT HERRERA et al.,Plaintiffs and Appellants,v.DEUTSCHE
1
BANK NATIONAL TRUST COMPANYet al.,Defendants and Respondents.C065630(Super. Ct. No. SC20090170) 
SUMMARY
Plaintiffs Robert and Gail Herrera lost their house inSouth Lake Tahoe to a nonjudicial foreclosure sale. Theybrought suit to set aside that sale. They challenge whether
1
The name of defendant Deutsche Bank National Trust Companywas misspelled “Deutsch” by plaintiffs in the complaint andother filings. We use the correct spelling in our opinion.
 
 2the parties that conducted the sale, defendants Deutsche BankNational Trust Company (the Bank) and California ReconveyanceCompany (CRC), were in fact the beneficiary and trustee,respectively, under a deed of trust secured by their property,and thus had authority to conduct the sale. Plaintiffs alsocontend that they are entitled to be repaid for the expensesthey incurred in repairing and insuring the property and payingback taxes if defendants are successful in establishing theirinterest in the property.Defendants moved for summary judgment. In support oftheir motion, they requested that the trial court take judicialnotice of recorded documents, including an Assignment of Deedof Trust and a Substitution of Trustee. Defendants assertedthat these documents established the authority of the Bank andCRC to conduct the foreclosure sale. Defendants also provideda declaration by a custodian of records for CRC, in which thecustodian did not expressly declare that the Bank was thebeneficiary and CRC the trustee. Instead, she merely declaredthat an Assignment of Deed of Trust and a Substitution ofTrustee had been recorded and these recorded documents indicatedthe Bank had been assigned the deed of trust and that CRC hadbeen substituted as trustee.Plaintiffs appeal from a judgment after the trial courtgranted defendants’ motion for summary judgment. They contenddefendants failed to carry their burden in moving for summaryjudgment and the trial court erred in taking judicial noticeof and accepting as true the contents of certain recorded
 
 3documents. We agree and reverse the judgment in part. Forthe reasons discussed herein, we affirm the judgment as tothe fourth cause of action, plaintiffs’ claim of unjustenrichment.
 FACTUAL AND PROCEDURAL BACKGROUND
In June of 2008, plaintiffs purchased the property at739 Alameda Avenue, South Lake Tahoe (the Property) at aforeclosure sale. On February 27, 2009, CRC recorded a“Notice of Default and Election to Sell [the Property] UnderDeed of Trust.” On May 29, 2009, CRC recorded a Notice ofTrustee’s Sale. On July 6, 2009, CRC recorded a Trustee’sDeed upon Sale, showing the Property had been conveyed to theBank, as foreclosing beneficiary. Plaintiffs brought suitagainst the Bank, CRC and others to set aside the sale, cancelthe trustee’s deed, quiet title to the Property, and for unjustenrichment.In the first cause of action, plaintiffs sought to setaside the trustee’s sale. Plaintiffs alleged they purchased“this run-down, filthy, distressed property” at a foreclosuresale, rehabilitated and repaired the Property and paid over$4,000 in back property taxes. They had no idea there might bea deed of trust from 2003, as it did not appear in the titlesearch. About a year later, after plaintiffs had completedrepair work on the Property, the Bank, “some mega-too-big-to-fail recipient of billions of tax payer dollars” asserted anownership interest in the Property. The Bank claimed to be the

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