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7 8 9 10 11 12 13 14 INDYMAC VENTURE, Plaintiff, vs. DAVID CAROZZA, Defendants. ET. AL. LLC, Case No. I1B04297 Related Case No. EC056230 Opposition To Motion For Summary Judgment Hearing Date: November 23, 20 II Hearing Time: 8:30 am Hearing Dept. P THE SUPERIOR COURT OF THE STATE OF CALIFORNIA (EAST) IN AND FOR THE COUNTY OF LOS ANGELES - VAN NUYS COURTHOUSE
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DEFENDANT David Carozza respectfully opposes PlaintiffIndymac Motion For Summary Judgment for the following reasons:
Opposition To Motion For Summary Judgment 1
ALL DOUBTS ARE RESOLVED IN FAVOR OF DENYING THE MOTION. . . . . . .TABLE OF CONTENTS 2 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PREFATORY STATEMENT 4 4 4 5 6 7 8 I. PLAINTIFF'S FACTUALLY DEVOID DISCOVERY RESPONSES WARRANT A DENIAL OF THE SUMMARY JUDGMENT MOTION. . . . . MORTGAGEE. BENEFICIARY OR THEIR AUTHORIZED AGENT MA Y INITIATE A TRUSTEES SALE PURSUANT TO SECTION 2924(A)( I) . 8 8 9 10 III. . . . . . . .. . . . . . . . . . . . . . 11 12 13 A. . . CONCLUSION 12 14 IS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opposition To Motion For Summary Judgment 2 . . . . . . QUESTIONS OF TITLE MAYBE ADJUDICATED IN AN EVICTION BASED ON THE PURCHASE OF A PROPERTY AT A TRUSTEES SALE. DEFENDANT MAY CHALLENGE THE PROPRIETY OF THE TRUSTEES SALE AND PLAINTIFF'S BENEFICIARY STATUS BECAUSE IT MADE THE REQUISITE TENDER VIII. . . .. . STRICT COMPLIANCE WITH STATUTORY PROCEDURE IS REQUIRED 7 . . . . . PLAINTIFF WAS NOT A TRUSTEE. . . . . . II VI. PLAINTIFF'S CONTENTION THAT IT IS A BONA FIDE PURCHASER OF THE REAL PROPERTY FOR VALUE IS A TRIABLE ISSUE OF FACT VII. . . . . IV. .. 9 B. . . . ONLY A TRUSTEE. . . . MORTGAGEE. . PLAINTIFF HAS FAILED TO MEET ITS INITIAL BURDEN OF PRODUCING EVIDENCE THAT MAKES A PRIMA FACIE SHOWING OF THE NON-EXISTENCE OF ANY GENUINE ISSUE OF MATERIAL FACT 6 II. . . . . . . . . . . . . BENEFICIARY OR AUTHORIZED AGENT WHEN IT RECORDED THE NOTICE OF DEFAULT AND NOTICE OF TRUSTEES SALE 9 V.
Goodfellow v Goodfellow (1933) 219 C 548 Malkoskie v.d" 1370 Security First Nat.2d 757 6 Angels. Bro v. (2001) 25 Cal.2d 609. App. Superior Court. (1997) 54 Cal.d" 573 Vella v. Trauzettel (1937) 9 C2d 158.App. App. Glasser.3d 633 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opposition To Motion For Summary Judgment 3 . Inc. Atlantic Richfield Oil Company. (1985) 163 Cal. Lovelace. Southern California Gas Company. (1995) 31 Cal. Hudgins (1977) 20 C3d 251 Watkins v Bryant (1891) 91 C 492 Wolfe v. (1994) 22 Cal. App. Bank of Los Angeles v. Nagle v Macy (1858) 9 C 426 Royal Thrift and Loan Co. (1970) 5 Cal.3d 638 Delta Imports.App. 271 Cheney v.e" 1398 Carpenter v. App.3d 1033. Empire West Side Irrigation District v. (2004) 123 Cal. (1979) 98 Cal. Cryer. De La Salle Institute.S.41h 826 Beck v. App. Longan (1872) 83 u. (2001) 85 Cal. Municipal Court. 39 Cal.3d 911 Gibson v. (1944) 66 Cal. App. v.4th 968. App. De La Vera v. Inc.4th 1279 Turner v Gosden (1932) 121 CA 20 Union Bank v. 41h24 Salazar v. 2d 719. v. Lipsy. Reinholtz (1956) 138 Cal. App. Inc. Stuart-Wright Mortgage. Municipal Court. App. App.1 2 Adler v Sargent (1895) 109 C 42 TABLE OF AUTHORITIES 3 4 Aguilar v. v County Escrow. App. (1983) 146 Cal. Option One Mortgage Corporation (2010) 188 Cal. Inc.
On November 10. Defendant's counsel has been working with Plaintiffs counsel to take the deposition. 2011. 2011. the Plaintiff testifies that Defendant didn't receive the Notice To Quit until July 18.3. Another reason why the Court must deny Plaintiffs Motion For Summary Judgment is because triable issues of fact remain concerning the trustees sale itself. This Court already took judicial notice of the pleadings in Unlimited Jurisdiction matter during the hearing on Defendant's demurrer. Rehab filed a declaration stating that he posted and mailed a three day notice. 2011. Raheb claims that a Notice To Quit was served upon Defendant. On November 14. While the Court in an unlawful detainer matter does not normally litigate issues concerning title. It should also be noted that Plaintiffs themselves haven't been able to determine the nature and time of the service. which was only two days before the filing date. Defendant has noticed the deposition of the Person Most Knowledgeable concerning the facts surrounding the purported the service of the Notice to Quit. In their supplemental verified response to Defendant's form interrogatory 72. The Court would have to deny Plaintiffs Motion For Summary Judgment simply because a triable issue of fact remains concerning the actual service of the notice to quit and whether the unlawful detainer itself was filed prematurely. Stephen A. Stephen A. While the First Amended Declaration of Stephen A. the Plaintiff has the burden of proving a trustees sale was conducted in accordance with Section 2924 of the Civil Code in order to evict an owner\occupant pursuant to CCP Section 1162. Defendant denies that such service was attempted or effected. This matter is being aggressively litigated in Unlimited Jurisdiction Court. The only reason the deposition hasn't been taken is due to the unavailability of the Plaintiff. Rehab filed a 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 declaration stating that he personally served the Defendant with a three day notice on July 14.1 2 3 4 5 6 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PREFATORY STATEMENT OF OPPOSITION It is important to note that the three day Notice To Quit was never served upon the Defendant. 23 24 25 26 27 28 Opposition To Motion For Summary Judgment 4 .2011.
and whether Opposition To Motion For Summary Judgment 5 . Defendant has challenged the propriety if the trustees sale in his answer and the Plaintiff is arguing that the trustees sale was conducted properly in its Motion For Summary Judgment. the Court should acknowledge that Defendant was not required to do so unless the Plaintiff offered evidence that tender did not occur. requisite tender and Plaintiff proceeded with the trustees sale anyway. while propriety of a trustees sale without establishing tender. The Unlawful Detainer Court must now take into account and give deference the litigation concerning title in the Superior Court given the Malkoskie decision. disputed facts exist concerning whether a Notice To Quit was served. Plaintiffs motion argues that Defendant must prove tender before it can challenge the trustees sale. In this unlawful detainer action. the Notice of Deposition of the Person Most Knowledgeable seeks to depose the person most knowledgeable concerning Plaintiffs contention that trustees sale was conducted in accordance with Section 2924. Unless there is clear and convincing evidence that the trustees sale was conducted in accordance with Section 2924. Plaintiff contends that Defendant cannot challenge the Defendant contends that it made the Incidentally. the unlawful detainer court should abstain from making any factual determination that the trustees sale was conducted properly simply by taking judicial notice of recorded documents when those documents themselves may be suspect. While counsel for the parties has been trying to coordinate the deposition. the findings in the unlawful detainer court are res judicata in any Superior Court action challenging the propriety of the trustees sale. Plaintiff has offered no affidavit or any other evidence to support its claim that no tender occurred.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Malkoskie v. Specifically. While Defendant has filed a declaration stating that he made the requisite tender. whether the trustees sale was conducted in accordance with Section 2924.App.4th 968. Once again. Plaintiff itself has resisted the taking of its deposition. the Court of Appeal determined that if an issue concerning the propriety of a trustees sale has actually been litigated in the unlawful detainer court. Option One Mortgage COUJoration (2010) 188 Cal. The Court is urged to deny Plaintiffs Motion For Summary Judgment because triable issues of fact remain.
857 fn. 63 Cal. Plaintiff's supporting Declarations are insufficient to justify the granting of summary judgment. Lastly. The only declaration concerning the propriety of the trustees sale is the Declaration filed by Plaintiff's counsel. considered in light of the issues raised by the pleading. Salazar v. service of the Notice To Quit. Rptr. Atlantic Richfield Oil Company.2d 522. Glasser. the Court is urged to continue the hearing on the Motion For Summary Judgment until the deposition of the Plaintiff can be completed. whose testimony is not based on personal knowledge but on documents she received from her client. Dess Richardson. Salazar v. support the summary judgment motion does the court look to counter-affidavits App. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. which is inconsistent with both declarations filed by Stephen A. Bro v. (1994) 22 Cal.41h 826. App.d" 1398. 1406. 1405. (id). Further. 1376.s" 1370. Southern California Gas Company. In the case at bar. accepting as fact only those portions that are not contradicted by opposing papers. Raheb. The moving party's papers are strictly construed.1 2 3 the Defendant made the requisite tender in order to challenge the propriety of the trustees sale. While the Court may take judicial notice of the fact Opposition To Motion For Summary Judgment 6 . no declaration has been filed the Plaintiff itself or the trustee who conducted the trustees sale attesting to the fact that the trustees sale was conducted in accordance with Section 2924. Plaintiff's responses to the form interrogatories contend that Defendant David Carozza didn't receive the notice to quit until July 18. (2001) 25 Cal. PLAINTIFF HAS FAILED TO MEET ITS INITIAL BURDEN OF PRODUCING EVIDENCE THAT MAKES A PRIMA FACIE SHOWING OF THE NONEXISTENCE OF ANY GENUINE ISSUE OF MATERIAL FACT The burden of producing evidence that a genuine triable issue of fact does not exist is initially on the moving party. Stephen A. would standing alone. (1997) 54 Cal. Only if the moving party first demonstrates that its declarations. All facts stated therein are accepted as true. Aguilar v.2011. Raheb has filed inconsistent declarations concerning and counter-declarations. Southern California Gas Company. The opposing party's papers are liberally construed. 4.
159 Cal. which is found in Civil Code sections 2924 through 2924k.3d 638. is a condition precedent to maintaining a proceeding for unlawful detainer. De La Vera v. foreclosure sales are governed by a 'comprehensive' statutory scheme. v." 6 Angels.4th 1279. App. The Motion should be denied. App. Inc. This scheme. the giving of notice must be alleged in the Complaint. (1983) 146 Cal. the contents of the documents themselves are hearsay and require supporting evidence that the contentions made in the documents are actually true. In this case. v.3d 1033. Where written notice to quit the premises. On motion for summary judgment. It doesn't even warrant shifting the burden to respond to the Defendant. App. 640. Inc.I 2 3 4 5 6 that documents were "recorded" with the County Recorder. unreliable and based on hearsay. Plaintiff must therefore demonstrate that it complied that the sale was conducted in accordance with Section 2924 in order to prevail on a Motion For Summary Judgment. evidences a legislative intent that a sale which is properly conducted' constitutes a final adjudication of the rights of the borrower and lender. Raheb are contradicted by the Declaration of David Carrozza. 648. 1283-1284. or of any other documents and process on the dates and times that Mr. 1036. (2001) 85 Cal. it remains a triable issue of fact as to whether this Plaintiff had the Opposition To Motion For Summary Judgment 7 . Plaintiffs inconsistent declarations and discovery responses and Defendants' counterdeclarations denying such service creates a triable issue of fact. Further. The testimony of Dess Richardson concerning the trustees sale is incompetent. STRICT COMPLIANCE WITH STATUTORY PROCEDURE IS REQUIRED The summary nature of unlawful detainer proceedings mandate strict compliance with the 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 governing statutory provisions. Municipal Court. or to pay rent or quit. Plaintiff must produce competent evidence of such service. Rptr. Delta Imports. Municipal Court. Raheb never attempted service of the required notices under Code of Civil Procedure Section 1161 or 1161a. which states that Stephen A. (1979) 98 Cal. Inc. Stuart-Wright Mortgage. Both of the Declarations filed by Stephen A. 7 8 II. Raheb claims.
2d 774. the motion should be denied. ALL DOUBTS ARE RESOLVED IN FAVOR OF DENYING THE MOTION Where there is a doubt as to whether a motion for summary judgment should be granted. 5. and authority to commence foreclosure proceedings against the Property in the first place. all doubts as to proper efforts and acts to effectuate service of notices and process should be resolved in favor of denying the Motion. A purchaser of the property as described in the statute.552. In the case at bar. IV. Vella v. App.. Hudgins (1977) 20 C3d 251. must show that he or she acquired the property at a regularly conducted sale and thereafter "duly perfected" the title CCP § 1161a. right. (1944) 66 Cal. (1970) 5 Cal.3d 911. Lovelace. 152 P.2d 609. Trauzettel (1937) 9 C2d 158. the statute provides for a narrow and sharply focused examination of title. '"A qualified exception to the rule that title cannot be tried in an unlawful detainer proceeding [see Evid Code § 624. By extending the summary eviction remedy beyond the conventional landlord-tenant relationship to include purchasers of the occupied property. All doubts as to whether Plaintiff conducted the sale in accordance with Section 2924 should also be resolved in favor of denying the motion.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 power. Gibson v. Rptr. titlemay be litigated in the unlawful detainer proceeding Cheney v.45[I][c]] is contained in CCP § 1161a. as provided by the statute. Empire West Side Irrigation District v.255. App.85 Cal. To this limited extent. QUESTIONS OF TITLE MAYBE ADJUDICATED IN AN EVICTION BASED ON THE PURCHASE OF A PROPERTY AT A TRUSTEES SALE. De La Salle Institute. 159 Opposition To Motion For Summary Judgment 8 . III. who starts an unlawful detainer proceeding to evict an occupant in possession.
(3) After the lapse of the three months described in paragraph (2). In order for Plaintiff to have any rights in the Property. (C) A statement setting forth the nature of each breach actually known to the beneficiary and of his or her election to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default. 26 27 28 Opposition To Motion For Summary Judgment 9 . 2009.A. PLAINTIFF WAS NOT A TRUSTEE. (B) A statement that a breach of the obligation for which the mortgage or transfer in trust is security has occurred. Section 2924(a)(l) B. trustee or other person authorized to take the sale shall give notice of sale. the mortgagee. the Court must find that the FDIC had an interest in the Property to assign to Plaintiff on June 25. 2009 and that the FDIC actually assigned its interest in the Property to Plaintiff on June 25. or instrument number. in its capacity as Receiver For Indymac Bank. Plaintiff contends that the Federal Deposit Insurance Corporation. or any of their authorized agents shall first file for record. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ONLY A TRUSTEE. MORTGAGEE. Plaintiffs Exhibit 1 identifies the original lender and original beneficiary under Note and Deed of Trust as Indymac Bank.2009. in the manner and for a time not less than that set forth in Section 2924f. No one disputes the fact that Plaintiff was not the original lender or original beneficiary under the Deed of Trust or Promissory Note. BENEFICIARY OR AUTHORIZED AGENT WHEN IT RECORDED THE NOTICE OF TRUSTEES SALE.. the statement specified in paragraph (I) of subdivision (b) of Section 2924c. stating the time and place thereof.B . C. FSB assigned its interest in the Note and Deed Of Trust to the Plaintiff on June 25. a notice of default. Plaintiffs Exhibit 2. That notice of default shall include all of the following: (A) A statement identifying the mortgage or deed of trust by stating the name or names of the trustor or trustors and giving the book and page. ifapplicable. or beneficiary. F. (D) If the default is curable pursuant to Section 2924c. MORTGAGEE. (2) Not less than three months shall elapse from the filing of the notice of default. in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated.S. mortgagee.C. BENEFICIARY OR THEIR AUTHORIZED AGENT MAY INITIATE A TRUSTEES SALE PURSUANT TO SECTION 2924(A)(I) "The trustee. where the mortgage or deed of trust is recorded or a description of the mortgaged or trust property.P.
A security interest. after conducting a forensic loan audit has determined that Indymac Bank. the former as essential. 21 L. FSB. An obligation can exist with or without security.S. Fourth Edition.2920. With no security.Ed. the transaction is a nullity and his "assignee" having received no interest in the underlying debt or obligation.27 (2J (2000) According to California Mortgage and Deed of Trust Practice § 1. the FDIC may have had the power to assign its interest in the Deed of Trust to Indymac Venture. by Roger Bernhardt. has a worthless piece of paper (4 Richard R. Longan (1872) .2909.11) In Camenter v.2009. (Civil Code §§ 2872. transferred all of its interest in the Promissory Note to the Indymac Residential Mortgage-Backed Trust. Arthur Bernard. LLC since the Note was delivered to the Trust in September.39 (I) the Beneficiary Must Be Obligee: The beneficiary must be an obligee of the secured obligation (usually the payee of a note).The authenticity of Exhibit 2 is immediately called into question because the signature of 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 the notary is a blatant forgery.19 on the need for an obligation. § 37. however.S. 313 (1872).39 (3d ed Cal CEB 2008) § 1. On June 30. Supreme Court stated "The note and mortgage are inseparable. 2006.83 U. and Foreclosure Litigation. Secondly. 271. Not only is this readily apparent to the naked eye when the signature is compared with original signature of the notary appearing on the the notary's recorded surety bond. the obligation is unsecured but still valid. Powell). because otherwise the deed of trust in its favor is meaningless. The deed of trust is merely an incident of the obligation Opposition To Motion For Summary Judgment 10 28 . "Where the mortgagee has "transferred" only the mortgage. 27 P 775. Powell on Real Property. 2006. Series 2006-L3 in September. the latter as an incident. It is impossible to define security apart from its relationship to the promise or obligation it secures. but a qualified forensic document examiner has also determined that the signature is a forgery.8-1. It certainly did not have the power to assign the Promissory Note to Indymac Venture. cannot exist without an underlying obligation. See §§ 1. the U. California Mortgages and Deeds of Trust. § 1. 274. Nagle v Macy (1858) 9 C 426. LLC. Watkins v Bryant (1891) 91 C 492.
s" at 590. subdivision (0)(2). a . Superior Court. PLAINTIFF'S FACTUALLY DEVOID DISCOVERY RESPONSES DENIAL OF THE SUMMARY JUDGMENT MOTION WARRANT A Plaintiffs discovery responses are factually devoid. In the case at bar.] be denied. Adler v Sargent (1895) 109 C 42. Once the burden shifts as a result of the factually devoid discovery responses. Plaintiffs factually devoid discovery responses can satisfy the Defendants' initial burden of producing evidence in support of Defendants' Opposition to the motion for summary judgment. Goodfellow v Goodfellow (1933) 219 C 548. App. 8 P2d 505. In the case at bar. (1995) 31 Cal.. Turner v Gosden (1932) t 21 CA 20. Dess Richardson. Given that Plaintiff contends it received a valid assignment and Defendant has offered credible evidence that the assignment is a sham and a fraud. The opinion and findings of Arthur Bernardo remain uncontested by the Plaintiff. App.1 and has no existence apart from it. 37 Cal. Union Bank v. 41 P 799. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rptr. plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact. defendant may rely on factually devoid responses to shift his burden of proof pursuant to [Code of Civil Procedure] section 437c. Plaintiff has refused to sit for its deposition. Although counsel for the parties has worked diligently to coordinate the taking of the deposition. by Plaintiff to support its claim that the trustees sale was conducted in accordance with Section 2924 is the declaration of Plaintiffs counsel.. the Plaintiff itself has refused to attend.2d 653: "Now. 592-593.] A motion for summary judgment should be denied where the moving party has refused to comply with its discovery obligations or where the moving party has failed to cooperate in discovery. the only declaration provided The motion should to the Plaintiff to provide more specific information.d" 573." [31 Cal. 2 3 4 5 6 7 8 9 10 11 12 13 V. 590. Plaintiffs failure to sit for its duly noticed deposition shifts the burden In this case. 27 P2d 898. Plaintiffs counsel did not Opposition To Motion For Summary Judgment 11 . Plaintiffs standing and right to initiate a non-judicial trustees sale in the first place remains a triable issue of fact. Plaintiff has refused and continues to refuse to sit for its deposition.
Inc.3d 633. 85 Cal. App. The conclusive presumption that Plaintiff is the owner of the property upon the timely recordation of the deed of trust only applies if Plaintiff is a bona fide purchaser of the property for value. supra. her testimony is inadmissible as evidence that the trustees sale was conducted in accordance with Section 2924. there is nothing in Dess 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opposition To Motion For Summary Judgment 12 Richardson's declaration that contends it did. The Defendant filed the following affidavit: . Civil Code section 2924 contains a statutory presumption 'arisling] from the recital in the trustee's deed that all statutory requirements for notice of default and sale have been satisfied. At least. 4th24 for this proposition. Since Dess Richardson has no personal knowledge concerning any matter that occurred prior to the trustees sale. Plaintiff contends that Trustees Sales are presumed valid. This presumption is prima facie evidence of compliance and conclusive evidence of compliance in favor of a bona fide purchaser or encumbrancer. the sale can be successfully attacked on the grounds of procedural irregularity only if the buyer is not a bona fide purchaser. App. 1286.000.00 for the Property. App. Reinholtz (1956) 138 Cal. once a deed reciting that all legal requirements have been satisfied has been transferred to a buyer at a foreclosure sale.. v County Escrow. They cite Royal Thrift and Loan Co. 102 Cal. The Motion should be denied. Stuart-Wright Mortgage. The Trustees Deed Upon Sale attached as Exhibit 6 to Plaintiffs Motion shows that Plaintiff paid $0. See: Wolfe v. the Defendant filed a Motion For Summary Judgment in a quiet title action. Inc . In that case. Royal Thrift paid $139. v.2d 711.' [Citations. 2d 719.4th at p. Inc. PLAINTIFF'S CONTENTION THAT IT IS A BONA FIDE PURCHASER OF THE REAL PROPERTY FOR VALUE IS A TRIABLE ISSUE OF FACT." Royal Thrift & Loan citing 6 Angels. 640. (1985) 163 Cal. App. Lipsy. VI. In Royal Thrift.conduct the trustees sale or supervise the trustees sale.00 The Court in Royal Thrift also stated that the presumption only applies to bonafide purchasers who pay value. (2004) 123 Cal.] Thus.Rptr. The next case cited by the Plaintiff in support of this proposition is Beck v.
plaintiffs' title and interest in the property ceased and was terminated" Beck at 721. that the said trust deed was executed and delivered on December 4. plaintiffs made no payments on the promissory note after May 5. a notice of trustee's sale was executed and the property was sold at public auction to affiant.2d 757. that pursuant to said sale and the purchase of the property by affiant. Cryer. thereby raising an issue. she entered into possession of the property and is now the owner thereof. 1946. nevertheless. 1954. Lastly. the Plaintiff has not filed any affidavits based on its personal knowledge that the trustees sale was conducted properly. 1954. Defendant has also provided evidence. that pursuant to said notice of default. For the purpose of Summary Judgment. the findings of Defendant's expert must be accepted as true.2 3 4 5 6 7 8 9 10 11 "In her affidavit in support of the motion defendant Reinholtz set forth that the complaint does not state a good cause of action against the defendants. that Indymac was no longer a beneficiary under the note or the deed of trust when the loan when the FDIC became the receiver and that the FDIC did not have any interest in the Property to assign the Defendant. 12 13 14 15 16 17 18 19 20 21 22 23 Bank of Los Angeles v. as alleged in plaintiffs' complaint. that by reason of the default of plaintiffs under said note and by reason of the sale of the property to affiant by the trustee on October 7. that notice of default under the terms of said trust deed was recorded May 18.App. the merits of which would be determined upon a trial. which is even apparent to the layman's eye that the Notary's signature appearing on the Assignment of Deed of Trust is a forgery. that a trustee's deed was executed and recorded. that plaintiffs were the owners of the real property involved until October 7. that. In this case. it was incumbent upon the defendants in that case in order to defeat a motion for summary judgment to present evidentiary facts to controvert the recitals in the trust deed to the effect that the sale was legally held. that notices of the trustee's sale were posted in three public places in San Clemente and publication was had in accordance with all of the provisions of said trust deed. the Defendant expert witnesses contend that the loan was securitized. that said sale was legally made and fairly conducted. Opposition To Motion For Summary Judgment 13 . Defendant has filed his own declaration asserting that he had paid all amounts due and owing on the Promissory Note and was not in default on the default. 762 . Plaintiff's 24 25 26 27 28 have offered no evidence or affidavits that rebut the contentions of Defendant's experts. The Court in Beck granted Defendants Motion For Summary Judgment because the Plaintiff failed to file a counter-affidavit alledging an irregularity Citing Security First Nat. Beck at 723. 1947. the Court held that while recitals contained in a trustee's deed are not conclusive as between the parties to the trust deed. 39 Cal. 1954.
According to Arthur Bernardo the original beneficiary transferred its interest in the Property to a securitized trust prior to the FDIC being appointed receiver of the Beneficiary. contends that it received an Assignment from the Beneficiary of the Deed of Trust.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Defendant has challenged the trustees sale on multiple grounds which are being adjudicated by the Superior Court. Only a beneficiary or authorized agent for a beneficiary may conduct a trustees sale under Section 2924. No such requirement exists for a Defendant in the an action for unlawful detainer. The Assignment was executed by the FDIC not any known beneficiary. While Plaintiff argues that Defendant has not satisfied the Opposition To Motion For Summary Judgment 14 . No assignment exists from the original beneficiary to the FDIC. DEFENDANT MAY CHALLENGE THE PROPRIETY OF THE TRUSTEES SALE AND PLAINTIFF'S BENEFICIARY STATUS BECAUSE IT MADE THE REQUISITE TENDER. Plaintiff contends that it had the authority by virtue of the FDIC assignment. it must be pointed out that until the Plaintiff satisfies its requisite burden of proof. Defendant never entered into an agreement with the Plaintiff. At the outset. VII. While Defendant argues that it has conclusively proven that Plaintiff was never a beneficiary under the deed of trust or Promissory Note. Defendant acknowledges that if it were the Plaintiff in a proceeding challenging a Plaintiffs beneficiary status remains a triable issue of fact. Plaintiff without providing any evidentiary or factual support for its claim alleges that it is was a "beneficiary" of a deed of trust for the purpose of conducting a trustees sale. it is required to plead and prove tender. It should be noted that Plaintiff was not the original beneficiary of the deed of Plaintiff trust or promissory note. Defendant is unable to raise the issue because the Defendant has not alleged tender in its answer. be denied. the Defendant doesn't have an obligation to prove anything during a Motion For Summary Judgment. The Motion must 23 24 25 26 27 28 trustees sale. Plaintiff contends that even if it wasn't a beneficiary of the deed of trust for the purpose of conducting the trustees sale. This is also a falsehood. When the FDIC executed the assignment it had no interest in the Promissory Note or the Deed of Trust to assign to the Plaintiff.
For the foregoing reasons. the Defendant has declared that he made the requisite tender. The Motion For Summary Judgment be denied. Nonetheless. Plaintiff's Motion For Summary Judgment should be denied. CONCLUSION. Plaintiff's contention that there was no tender remains a triable issue of fact. 6 7 8 9 VIII.tender requirement in its points and authorities. it has offered no evidence to support its claim 2 3 4 5 that no tender occurred in its Motion For Summary Judgment which the Defendant must rebut through counter-affidavits. DATED: November 21. ACTION _.- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opposition To Motion For Summary Judgment 15 . 20 II Respectfully submitted.
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