SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
CENTRAL JUSTICE CENTER
DATE: 12/09/2013 TIME: 11 :34:00 AM
JUDICIAL OFFICER PRESIDING: Thierry Patrick Colaw
CLERK: P. Rief
REPORTERIERM: None
BAI LIFF/COURT ATTENDANT: Edwin Hong
DEPT: C25
CASE NO: 30-2013-00651662-CU-OR-CJC CASE INIT.DATE: OS/23/2013
CASE TITLE: Lucas VS. Meridian Foreclosure Service
CASE CATEGORY: Civil- Unlimited CASE TYPE: Other Real Property
EVENT ID/DOCUMENT 10: 71856341
EVENT TYPE: Under Submission Ruling
APPEARANCES
DEMURRER BY DEFENDANTS DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF
THE INDYMAC INDX MORTGAGE LOAN TRUST 2007-AR11 , MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-AR11 UNDER THE POOLING AND SERVICING AGREEMENT DATED
APRIL 1, 2007; ONEWEST BANK, FSB; AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS
INC.
There are no appearances by any party.
The court, having taken the above-entitled matter under submission on 12/06/2013 and having fully
considered the arguments of all parties, both written and oral, as well as the evidence presented , now
rules as follows:
NOTICE OF RULING
EXCERPTS:
The Demurrer to the 1st cause of action (Declaratory Relief) as to all Defendants is OVERRULED.
Plaintiffs are not merely challenging the foreclosure process under Gomes v. Countrywide Home Loans,
Inc. (2011 ) 192 Cal.App.4th 1149 and/or based on issues with the securitization of the loan and violation
of the PSA. Rather, Plaintiffs allege that the loan never made it into the trust pursuant to Glaski v. Bank
of America, National Association (2013) 218 Cal.App.4th 1079. (See, First Amended Complaint, at 1m
41-47.) Defendants have failed to sufficiently establish that the factual allegation is insufficient as a
matter of law. In addition, federal district court cases are not binding on this court. The parties should
move forward with discovery to determine whether the loan was transferred to a securitized trust, when it
was transferred, and which state’s trust laws apply.
[…]
The Demurrer to the 5th cause of action (Violation of Bus, & prof. Code § 17200) as against
OneWest and MERS is OVERRULED,
First, Plaintiffs have alleged sufficient facts showing that they have suffered an injury in fact, and
therefore have standing to sue. In addition, Plaintiffs have alleged an “unlawful” business act with
sufficient particularity (i.e., the facts alleged in support of the declaratory relief and violation of Civil Code
§ 2924.12 causes of action are all incorporated into this cause of action).
[…]
It is questionable whether tender is required in this case. First, this is a pre-foreclosure sale case.
Second, the cases cited to by Defendants are factually distinguishable in that they are not pre
non-judicial foreclosure sale cases. Third, Plaintiffs are challenging the validity of Defendants’ authority
to foreclose under Glaski. The Court of Appeal in Glaski stated: “Tender is not required where the
foreclosure sale is void, rather than voidable, such as when a plaintiff proves that the entity lacked the
authority to foreclose on the property.” (Glaski v. Bank of America, National Association (2013) 218
Cal.App.4th 1079, 1100; see also, Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112 and Arnolds
Management Corp. v. Eischen (1984) 158 Cal. App. 3d 575, 579.) Thus, Plaintiffs are alleging that the
foreclosure sale in this case is void as a matter of law pursuant to Glaski, and that tender is therefore not
required.
[…]
Gaines v. Fidelity National Title Ins., et al. Published on 12/12/13 California Court of Appeal, Case #B244961 Et als mentioned in the opinion are Lehman Brothers, Aurora, Countrywide, Greenpoint, etc.
FINALLY…CA Appellate Court Justice J. Rubin apparently “gets it”. Interesting, yet disturbing tidbits taken from Rubin’s dissenting views of the case outcome:
“As is common in many of these “financial meltdown” cases, promissory notes are separated from deeds of trusts, paperwork is often not complete, and the parade of people and entities appears endless.”.
He summed it up rather eloquently, opining:
“In my view the dismissal of this lawsuit under the circumstances described defeats the substantial ends of justice. Instead, it rewards parties who, it would appear, have played a major and unlawful role in the theft of someone’s home.”.
“I would reverse the trial court’s judgment in its entirety.”.
Why is it so clear for Justice Rubin, yet not for his colleagues? A must read!
I agree Mike! you take the words out of my mouth. About time some justice is done. The federal judges should be totally absolutely ashamed of themselves.