UPDATE:Filed 5/31/11;partial pub. cert. & mod. 6/28/11 (see end of opn.)
The opinion in the above-entitled matter filed on May 31, 2011, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be partially published in the Official Reports and it is so ordered.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
—-
ROBERT HERRERA et al.,
Plaintiffs and Appellants,
v. DEUTSCHE1 BANK NATIONAL TRUST COMPANY
et al.,
Defendants and Respondents.
EXCERPT:
Defendants also relied on Brignac’s declaration, which declared that the 2003 deed of trust permitted the beneficiary to appoint successor trustees. Brignac, however, did not simply declare the identity of the beneficiary and the new trustee under the 2003 deed of trust. Instead, she declared that an Assignment of Deed of Trust and a Substitution of Trustee were recorded on February 27, 2009. These facts add nothing to the judicially noticed documents; they establish only that the documents were recorded.
Brignac further declared that “[t]he Assignment of Deed of Trust indicates that JPMorgan Bank [sic], successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, transfers all beneficial interest in connection with the [deed of trust] to Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4.” (Italics added.) This declaration is insufficient to show the Bank is the beneficiary under the 2003 deed of trust. A supporting declaration must be made on personal knowledge and “show affirmatively that the affiant is competent to testify to the matters stated.” (Code Civ. Proc., § 437c, subd. (d).) Brignac’s declaration does not affirmatively show that she can competently testify the Bank is the beneficiary under the 2003 deed of trust. At most, her declaration shows she can testify as to what the Assignment of Deed of Trust “indicates.” But the factual contents of the assignment are hearsay and defendants offered no exception to the hearsay rule prior to oral argument to make these factual matters admissible.
At oral argument, defendants contended that the recorded documents were actually business records and admissible under the business record exception. We note that Brignac did not provide any information in her declaration establishing that the sources of the information and the manner and time of preparation were such as to indicate trustworthiness.
Pursuant to CR 8.01(1) and CR 17.01, plaintiff in foreclosure complaints filed in Kenton County, Kentucky, must show that it is the holder of the note and mortgage at the time the complaint is filed. Effective with the foreclosure complaints filed November 15, 2010, and thereafter, the complaint at the time of the filing must be accompanied by all of the following:
(1) a copy of the promissory note with all endorsements;
(2) a copy of the recorded mortgage;
(3) an affidavit by the plaintiff, it’s representative, it’s attorney or it’s servicer (a) documenting that the named plaintiff is the owner of the note and mortgage at the time the complaint is filed, and (b) identifying plaintiff as either the original note and mortgage holder, or as an assignee, trustee or successor-in-interest of the original note and mortgage holder;
(4) a copy of all the assignments of the note and mortgage, if plaintiff is not the original mortgage holder, evidencing the complete chain of assignments. The assignment of the note and mortgage to the named plaintiff must be executed prior to the filing of the foreclosure complaint;
(5) documentation establishing plaintiff as a successor-in-interest if plaintiff is a successor-in-interest.
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