CASE

NO.

F064556

IN THE COURT STATE FIFTH

OF APPEAL

OF CALIFORNIA DISTRICT

APPELLATE
THOMAS Plaintiff

A. GLASKI, and Appellant,

V.

BANK OF AMERICA, BY MERGER TO "LA

NATIONAL ASSOCIATION AS SUCCESSOR SALLE BANK N.A. AS TRUSTEE FOR WAMU SERIES 2005-AR-17", CHASE BANK, N.A., COMPANY,

MORTGAGE PASS THROUGH CERTIFICATES CHASE HOME FINANCE LLC, JPMORGAN AND CALIFORNIA Defendants RECONVEYANCE and Respondents.

Appeal Superior

from Court

a Judgment for Fresno

of the County

Hon. Alan M. Simpson, Judge Case No. 09CECG03601

APPELLANT'S Richard L. Antognini L.

OPENING Catarina

BRIEF M. Benitez

(CA Bar No. 075711) LAW OFFICES OF RICHARD ANTOGNINI 819 1 Street Lincoln, Telephone: Facsimile: E-Mail: California (916) (916) 95648-1742 645-7278 290-0539

(CA Bar No. 256518) LAW OFFICES OF CATARINA M. BENITEZ 2014 Fresno, Facsimile: Tulare Street, (559) (559) Suite 93721 472-7337 579-1100 400 California

Telephone:

rlalawyer_ahoo.com Attorneys THOMAS for Plaintiff A. GLASKI and Appellant

CERTIFICATE Appellant persons 8.208. Dated: September

OF INTERESTED Thomas A. Glaski

ENTITIES knows of no

AND

PERSONS parties Rule or

interested

who must he listed

in this certificate

under California

of Court

25, 2012

LAW

OFFICES

OF

CATARINA

M. BENITEZ

By: Catarina Attorneys M. Benitez for Plaintiff and

Appellant Thomas A. Glaski

-i-

TABLE

OF CONTENTS

Page I. INTRODUCTION II. A. B. STATEMENT Rules The Governing Original First OF FACTS Demurrers 1 1 1 2 5 9 Complaint Amended and Chase Complaint Agree to 12 15 16

Complaint Complaint Complaint Amended

C. The D. E. F. G. The The

Amended Amended

Second Demurrer

to the Second on the Demurrer

The Ruling The 50

to the Second Morgan

State Their

Settlement-JP Practices

Change III. IV. A. B. Second Wrongful (1)

STATEMENT ARGUMENT Standard Because Amended

OF APPEALABILITY

18 19 19

of Review Glaski to the Foreclosure. of a Wrongful Similar to Glaski's Foreclosure SAC Allow Claim. a Wrongful Foreclosure Trust Alleged Before that the Stated his Loan Was Sale, of Action Not His for

20

Transferred

Foreclosure a Cause

Complaint

Elements

20 25

(2) Cases Claim.

-ii-

Page

(4) Glaski Has Alleged PrejudiceandDamage (5) Tenderis Not Required. C. Because Glaski Alleged His Loan was not Properly Transferred, and Because He Alleged the Brignac Signatureswere Forged, He StatedTwo Causesof Action for Fraud. (1) The First
(2) (3) D. Based Action, V. The Cause of Action for Fraud for Fraud

30 32 33

33 37 38

Second

Cause

of Action

Glaski Because on

Pleaded

Reliance. Remaining and Wrongful Be Reinstated. Causes of Action Were of

Glaski's the Fraud Should

40

Foreclosure

Causes

They

CONCLUSION OF WORD COUNT

42 43

CERTIFICATE

-iii-

TABLE

OF AUTHORITIES Page California Cases 1101 (1996) 32 38, 39 24, 31, 35, 38

A bdallah Aceves Alcorn

v. United v. U.S. Bank v. Ambro

Savings National

Bank,

43 Cal.App.4th 192 Cal.App.4 2 Cal.3d

Assoc., Inc.,

th 218 (2011)

Engineering,

493 (1970)

Blank

v. Kirwan,

39 Cal.3d

311 (1985) Inc. v. Los Angeles Cellular Telephone Co., 27

24, 41 4O

Cel-Tech

Communications,

Cal.4 th 163 (1999) Curcini Dimock Evans v. County v. Emerald of Alameda, Properties, 164 Cal.App.4 LLC, th 629 (2008) 868 (1977) 2 33 1, 2 16 th 256 (2011) 27, 29 39 th 1149 LLP, (2011) Passim 21

81 Cal.App.4th

v. City of Berkeley, Corp.,

38 Cal.4 th 1 (2006) th 702 (2004) N.A., 198 Cal.App.4

Fitz v. NCR Fontenot Garcia Gomes Landmark

118 Cal.App.4 Fargo Bank,

v. Wells v. World

Savings,

183 Cal.App.4 Home Loans, Inc.,

th 1031 (2010) 192 Cal.App.4 & Bockius,

v. Countrywide Screens, LLC

v. Morgan,

Lewis

183 Cal.App.4 Lona

th 238 (2010) N.A., 202 Cal.App.4 Investors th 89 (2011) Passim 19

v. Citibank,

Los Altos

El Granada

v. City of Capitola,

139 Cal.App.4 Lovejoy Marshall

th 629 (2006) 119 Cal.App.4 & Crutcher, th 151 (2004) 37 Cal.App.4 th 1397 (1995) 39 2

v. A T& T Corp., v. Gibson, Dunn

-iv-

Page Moeller v. Lien, 25 Cal.App.4 th 822 (1994) 28, 29, 36 20, 22, 30, 32 Murillo Raglandv. (Cal. Satten v. FleetwoodEnterprises, U.S. BankNationalAssoc., Sept. 11, 2012) th 365 (2002) 31 Cal.4 th 1074 (2003) 2 19, 30, 38 32 lnc, 17 Cal.4 th 985 (1998) 2012 Cal.App. LEXIS 965 36 30, 35

Munger

v. Moore,

11 Cal.App.4

th 1 (1970)

Ct. App. v. Webb,

99 Cal.App.4

Schifando

v. City of Los Angeles,

U.S.

Cold Storage

v. Great 1214 (1985) Reavis

Western

Savings

& Loan

Association,

165 Cal.App.3d Vega v. Jones,

Day,

& Pogue, Federal

121 Cal.App.4 Cases U.S. Dist.

th 282 (2004)

39

Barrionuevo (N.D. Javaheri (C.D. Mena (N.D.

v. Chase

Bank,

N.A.,

2012

LEXIS

109935

22,25

Cal. Aug.

6, 2012) Chase Bank, N.A., 2011 U.S. Dist. LEXIS 62152 26,40

v. JP Morgan 2,2011)

Cal. June

v. JP Morgan Cal. Sept.

Chase

Bank,

N.A.,

2012

U.S.Dist.

LEXIS

128585

34

7, 2012) Home Mortgage Servicing, 279 F.R.D. 575 22,23

Ohlendorf (E.D. Sacchi (C.D. Cal.

v. American 2010) Elec.

v. Morg. Cal. June

Registrations

Sys., lnc.,

2011

U.S.

Dist.

LEXIS

68007

25, 2011) Mortgage, Inc., 2011 U.S.Dist. LEXIS 144442

22,26, 27 21,23

Tamburri (N.D.

v. Suntrust

Cal. Dec.

15, 2011)

-V-

Page Out of State U.S. Bank NationaI Assoc. v. Ibanez, California Business Business Civil Civil Civil Civil Civil Civil Code Code Code Code Code Code Code & Professions &Professions section section section section section section 1572 1708 1710 2923.6 2924 3517. section 436 (b) (a) (1) Code Code (3) section section Cases 40 (Mass. 201 I) 27

941 N.E.2d Statutes 17200 17204

5, 40 41 41 36, 40 36, 40 3,8 Passim 35 9 16, 35 16 36, 40

of Civil

Procedure

Evidence Evidence Penal Code

Code Code

section section

452 (d) 459 (a)

section

470 (d)

Rules

of Court 18, 19

Rule

8.104

(a) (1) (B)

-vi-

I.

INTRODUCTION

This appealasks:can a homeowner'scomplaint survive a demurrer when he has alleged that an investmenttrust lacked the power to foreclose becausethe homeowner's loan was not assignedto the trust before the foreclosure sale?
California have basic law The answer that any to that question prosecutes court must be yes, because must this

requires

party

that

a foreclosure did not recognize Glaski's

the power principle

to foreclose. when

Because

the trial

it sustained without

a demurrer leave to

to Thomas the

Second must be

Amended reversed. The foreclosure documents yes, because Because fraud, the

Complaint

amend,

judgment

appeal sale that

asks when

a second the

question: could

can

a homeowner proceeded the

challenge except must

a for be

foreclosure forged

not have Again,

contained

signatures?

answer

the used trial court

of forged

signatures

on recorded that forged

documents signatures

are fraud. amount to

did not recognize be reversed. STATEMENT

the judgment

must II.

OF FACTS

A. This rules the

Rules Statement

Governing of Facts

Demurrers should be read against from demurrers. of all facts the background Like of the

governing appellate

demurrers court must

and appeals assume Evans

the trial court, properly

the truth v. City 1

the plaintiff

pleads

in his complaint.

of Berkeley,

38 Cal.4 th 1, 5 (2006);

Curcini also must

v. County accept in the

of Alameda, as true

164 Cal.App.4 that may

th 629, be implied facts th 365,

633 (2008). or inferred in exhibits

The from

court the the v. the to

all facts

allegations complaint. Gibson, reviewing judicial

complaint, v. Webb,

including 99 Cal.App.4 37 Cal.App.4 account of

found 375 1403 are

to

Satten Dunn court notice.

(2002); (1995). properly

Marshall Finally, subject

& Crutcher, must Evans take

th 1397, facts that

v. City of Berkeley, Complaint Thomas 1, 2009.

38 Cal.4 th at 5.

B. Plaintiff original "1 AA"], trustee AR-17." Through

The Original and

appellant

A. (Vo.

Glaski

("Glaski")

filed Appendix

his [or

complaint

on October

1 of Appellant's

000018-000031.) of the "WAMU (1 AA Certificates point, trustee Bank Chase (1 AA

He sued Bank Mortgage Pass

of America

in its capacity Series Mortgage

as the 2005Pass trust

Through words

Certificates "WAMU

000018-000019.) Series acquired

The

2005-AR-17" Glaski's Bank it.

referred

to an investment La Salle

that, at some the original La Salle

mortgage. of America (Ibid.) LLC The and

(Ibid.) became other California

Bank was when

of the trust; with

the trustee named

merged Home

defendants

included Company.

Finance

Reconveyance

00018-000020.) that in July Way. that 2 2005, he bought a home He paid a home in Fresno, $812,000 loan for

Glaski California the home.

alleged

at 7741 (Ibid.)

E. Saginaw He financed

(1 AA 000020.) purchase with

through

Washington $1700

Mutual

or "WaMu." They then 2007. rose

(Ibid.) to $1900

At first,

his loan

payments 2006

were and

per month.

per month

in August

then to $2100 Beginning modification. Loan N.A. that On LLC acquired Chase March was

in August

(Ibid.) 2008, Glaski these failed May talked to WaMu with about Chase Chase a loan Home Bank,

in August (Ibid.) Glaski after

continued WaMu Until

discussions and 2009,

(or "Chase") its assets. considering

JP Morgan Glaski was

(Ibid.) him

led to believe 000021.) as the of 27,

for a loan

modification. Company, trust, recorded

(1 AA acting a sale

10, 2009, trustee Sale. under (1bid.)

California Glaski's His home

Reconveyance deed was of

substitute Trustee's 2009.

Notice on May

sold at a foreclosure

(1bid.) Glaski charged a fixed loan for that the defendants rate loan. put him in an adjustable They attempted rate loan, also gave to state

when him

he wanted a subprime of action relief, (1 AA

(1 AA 000022-000023.) (Ibid.) wrongful intentional foreclosure (b), Glaski

he could fraud,

not afford. quiet relief, title, and

causes

foreclosure, infliction cause

accounting, of emotional alleged did not

declaratory distress. a violation give relief Glaski cause

injunctive 000018.) Code

The wrongful section 2923.6 (1 AA that

of action

of Civil a loan of

because

defendants The have

modification. argued

000025-000026.) did not note.

declaratory the right to

action

defendants of Glaski's

foreclose

because

they were

not holders 3

(1 AA 000027.)

Based on these allegations, Glaski filed an application for a temporary restraining order on October 6, 2009 to stop defendantsfrom evicting him from his home or transferring title. (1 AA 000032-000050.) Glaski's declaration in support of the TRO application stated that from March 1, 2009 to May, 2009, he was under the impressionthat Chasewas evaluating his loan modification request. (1 AA 000045.) It was not until after his homewas sold on May 27, 2009 that he first learnedthat the Bank of America apparentlyheld his note, as it hadbecomethe beneficiary under his deed of trust. (1bid.) The trial court denied the TRO application on October 5, 2009. (1 AA 000005.) On February 14, 2011, Chasefiled an answerto the complaint. (1 AA 000051-000055.) No other defendantanswered,including the Bank of America. (Ibid.) At the same time, all three defendants--Bank of

America, Chase and California ReconveyanceCompany--filed a motion for judgment on the pleadings, to be hard on March 10, 2011. (1
000056-000071.) fraud Much of this motion arguing attacked Glaski's claims Chase AA

about had not from that (1 AA

in the origination Washington (1 AA

of his loan, Mutual's

that JP Morgan it bought motion

acquired the FDIC.

liabilities

when The the loan

WaMu also

assets

000065-000067.) barred

contended claims.

various

statutes

of limitation

origination

000067-000069.)

Glaski filed opposition to this motion (1 AA 000075-000088), contendingthat none of the defendantsheld his note and thereforehad no power to foreclose. (1 AA 000080-000081.) Glaski also offered to amend the complaint to correct any deficiencies. (1 AA 000083).
2011, amend the trial court granted the motion, but gave title, The infliction Glaski wrongful court On March leave 30, to and causes and

30 days

his causes relief.

of action

for fraud,

quiet

foreclosure, the distress,

declaratory of action

(1 AA 000105-000110.) intentional

dismissed

for an accounting, (1bid.) The filed First

of emotional

an injunction. C. Glaski 2011. title, and (1 AA wrongful violation

Amended Amended FAC

Complaint Complaint alleged causes relief, Law (1 AA (or "FAC") of action on April for fraud, 29, quiet

a First

000111.) foreclosure, of the

The

declaratory Competition et seq.

cancellation (or "UCL"),

of instruments, Business The & FAC of of

Unfair

Professions attached Trust," America, 2005-AR17." 2009 AA and that

Code

section

17200

000111-000132.) an "Assignment Chase Bank

incorporated assigned Glaski's

a single loan

exhibit, from

of Deed to Bank

JP Morgan

"as trustee (1 AA

for WaMu

Mortgage The after

Pass-Through assignment Glaski's Brignac," home who

Certificates was dated

Series June sold. 11, (1

000134-000135.) 15, 2009,

and recorded 000134.)

on June signed

had been claimed

It was

by "Deborah

to be a

"Vice President"of"JP
Her signature The defendant, the FDIC.

Morgan

Chase

Bank,

National

Association."

(Ibid.)

was notarized. FAC alleging (1 AA added that JP

(1 AA 000135.) Morgan Bank acquired FAC N.A. certain that ("JP assets Morgan") of WaMu was as from the a

JP Morgan The called (or

000112.) trust

asserted

JP Morgan

trustee

for an investment Series

the "WAMU "the Trust").

Mortgage (1 AA

Pass-Through 000113.) The The Trust

Certificates corpus was

2005-AR17" was a pool

of the Trust under FAC

of residential

mortgages.

(Ibid.)

operated The

a "Pool

Servicing that, under transferred

Agreement" the PSA, to the

or "PSA." all notes, Trust

(Ibid.) Glaski's the Trust's the the

charged to

including before was done rights

loan, "Closing "Closing loan.

were

required

be

Date." Date," The

(1 AA the Trust

000117.) did

Unless

the transfer the loan

before under

not acquire

or any loan

(1bid.)

FAC

then

alleged Date."

that the Glaski (1 AA until

was not transferred In fact, well sale. after the the

to the trust before loan closing was not

the "Closing to the Glaski a result,

000117-000118.) June 11, 2009,

transferred and after As

trust

date

lost his home the Trust and

at the foreclosure the other

(1 AA did not

000134-000135.) have the power The signature first

defendants

to foreclose. cause

(1 AA

000117-00118.) alleged of Deed was that Deborah Brignac's (1 to go

of action 11, 2009

for fraud Assignment

on the June The

of Trust

was forged.

AA 000118.)

purpose

of the forgery 6

to allow

the defendants

forward with the foreclosuresale. (1 AA

recorded document. The concealed Trust's defendants relied with second (Ibid.) cause of action, also loan

000119.)

Plaintiff

relied

on this

for fraud,

alleged

that

defendants after the that

the fact that the Glaski closing had date (1 AA

was transferred

to the Trust Glaski,

000118-000119.) his loan and

believing

to power

to service

the

power a loan LLC,

to foreclose, modification agents of JP

on this concealed "representatives

fact by attempting of Chase Home

to negotiate Finance

MORGAN." The allegations forged power wrongful did not foreclosure fifth cause

(1 AA 000119.) third and cause contended of action that Glaski Brignac 000121.) these to quiet should and The title have because fourth incorporated title because they cause the above

defendants the for

the signature to foreclose. foreclosure have the when

of Deborah (1 AA repeated

did not have of the action

charges--that they home. relief committed (1 AA requested

because

defendants of wrongful The that power the to

power they

to foreclose, sold Glaski's

the tort

000122-000123.) a declaration had the

of action sale was

for declaratory void because

foreclosure foreclose. The Trustee, the

defendants

never

(1 AA 000123-000124.) eighth cause of action Sale, sought cancellation Deed to of the Upon Substitution Sale, based of on

Notice

of Trustee's that defendants

and Trustee's lacked 7 the

allegation

power

foreclose.

(1 AA

000127-000128.) The ninth cause of action, for violation of the UCL, assertedthat defendantshad engaged in illegal and deceptive acts by forging Brignac's signature and by proceeding with the foreclosure sale without the power to do so. (1 AA 000128-000129.) Defendantsfiled a demurrer to the FAC on June 1, 2011. (1 AA 000137-000138.) They first argued that the fraud causesof action were barred by the statute of limitations. (1 AA 000144-000146.) They also contendedthat Glaski hadnot pled the fraudulentstatements with sufficient particularity. (Ibid.) They insisted Glaski could not sue to quiet title

becausehe no longer owned the homeandbecausehe had not tenderedthe balanceof the loan. (1 AA 000146.) Defendantsattackedthe wrongful foreclosure causeof action by arguing that Glaski had not alleged tender and becausethey believed the claim was based on Civil Code section 2923.6, which did not create a private causeof action. (1 AA 000147.) They said the declaratory relief cause of action failed because it was founded on the other invalid causesof action. (1 AA 000147-000148.) Finally, defendantschallengedthe UCL causeof action, contendingthat the foreclosuresale was proper and thus neither deceptivenor illegal. (1 AA 000148-000149.) In opposition, Glaski pointed out that defendantsmisconstruedhis fraud causesof action. The first causeof actionfor fraud was basedon the Brignac forged signature,and invoked the rule that a forged documentwas 8

void and fraudulent. (1 AA 000157-000158.) Next, becausethe Glaski loan was not properly transferredto the Trust, defendantsmisrepresented that they had the power to foreclose. (1 AA 000159-000160.) The same allegation supported the wrongful foreclosure cause of action, and the causesof action for declaratoryrelief, quiet title, andviolation of the UCL. '(1 AA 000160-000164.) The trial court struck the FAC "sua sponte" under Code of Civil Proceduresection436. (1 AA 000175.) It thought the FAC was unclear and confusing,but granted30 daysleave to amend. (Ibid.) It requiredan amendedcomplaint to state"ultimate facts," rather than legal conclusions. (1 AA 000179.) D. The SecondAmended Complaint

Glaski filed a SecondAmended Complaint on August 5, 2011. (1 AA 000182.) The SecondAmendedComplaint(or "SAC") statedthe same causes of action as the First
wrongful violation defendants. The the Glaski foreclosure, of the UCL. declaratory (1 AA Amended relief, Complaint--fraud, cancellation of It also quiet instruments, named the title, and same

000182-000204.)

(1 AA SAC Deed of Deed 15, 2009

000183.) and incorporated the Notice several of exhibits. the These June included 11, 2009 Sale,

attached of

Trust, of Trust, Trustee's

Default, Notice

Assignment the June

the March Deed 9

12, 2009 Upon Sale,

of Trustee's several

and

recorded

documents involving other properties. (1 AA 000207-000276.) These recorded documents,used by defendantsto foreclose other homes, had severalthings in common. First, they all were signedby DeborahBrignac. Second,eachsignaturewasdifferent; they could not havebeenmadeby the same person. (I AA 000247-000276.) Third, they showed that Ms. Brignac had multiple employers. Shewas representedto be an officer of California ReconveyanceCompany and JP Morgan. (Ibid.) Fourth, in

many cases,the signatureswere notarized, which meant that Ms. Brignac and the notary swore under penalty of perjury that the signatureswere actually madeby Ms. Brignac. (1bid.) The SAC's first cause of action for fraud identified the first fraudulent statementmade by the defendants--the signature of Deborah Brignac on the Notice of Trustee's Salewas authentic and that shewas an employee of JP Morgan. (1 AA 000189.) In reality, the signature was forged and Deborah Brignac was not employed by JP Morgan. (1 AA 000190.) The purpose of the fraud was "to conduct a Trustee's sale" of Glaski's home. (Ibid.) Plaintiff relied on the authenticity of Brignac's signature. (Ibid.) The secondcauseof action for fraud chargedthat defendantsdid not havethe power to foreclosebecausethe Glaski loan had not beenproperly transferredto the Trust. Paragraphs 45-49 stated:

10

"45. Plaintiff further believes and upon such belief alleges that the Note was not duly endorsed, transferredanddelivered to the Trust prior to the Closing Date of the Trust, as setforth in Section2.05of the Pooling and ServicingAgreement .... " 46. Plaintiff believes and upon such belief contends that Defendants Misrepresented and/or concealedthe true facts regarding the transfer of Plaintiff's Note andDeed of Trust.. by assigningthe Deed of Trust into the Trust... after the closing date. 47. Plaintiff is further informed and believes and thereon alleges that the Note in this case was never actually transferred or delivered by Washington Mutual . . . to the Depositor and by the Depositor to the Custodianon behalf of the Trusteefor the Trust prior to the closing date. 48. In addition, there is no indication that Plaintiff's loan was transferred into the trust pursuant to the PSA before the closing date, asit was not listed in any documentsfiled by the Trust and available to the public at www.edgar.gov.
Accordingly, never Trust. lawfully Plaintiff alleges and that the Note in this delivered case to was the negotiated physically

49. the after ninety

Based Deed (90)

upon of Trust

information did not

and occur but rather

belief,

the

Assignment 21, 2005, 15, 20098, ineffective after of Notice void

of or long as the for a the of ab

by December on June was

days thereafter, had closed. not have pursuant thereby as well and could

the Trust Date Trust,

Said assignment accepted the Deed and the

the Trust Closing REMIC Subject Trustee's initio." Glaski of recording would cause

of Trust

to the PSA rendering Trustee's

the requirements foreclosure of Default, Upon added.) also knew authorization by Sale,

Property, Sale, (1 AA then

as the Notice Deed italics

000190-000191; reliance: of Deed upon

pleaded

"Defendants... of trust without Defendants'

that the act to do so to

the Assignment Plaintiff to rely

actions

attempting

11

negotiatea loan modification with representatives of ChaseHome Finance, LLC, agentsof JPMORGAN." (Paragraph50 of the SAC, 1 AA 000191.) The secondcauseof actionconcluded: "Defendants intentionally mislead Plaintiff and engaging in material omissions by failing to disclose the true facts, including the fact that Defendantsconducted a non-judicial foreclosuresalewithout any right under the law by assigning the Deed of Trust after the date allowed pursuant to the Pooling and Servicing Agreement of the . . . Trust. In addition, Defendantsallowed the forged signaturesof CRC Vice President, Deborah Brignac to be placed on the Assignment of Deed of Trust and Notice of Trustee's Saleto effectuate a fraudulent foreclosure and Trustee's Sale of Plaintiff's primary residence." (Paragraph52 of the SAC, 1 AA 000192.) The SAC made identical allegations in the other causesof action, including the fourth causeof action for wrongful foreclosureandthe ninth causeof action for violation of the UCL. (1 AA 000194,000200.) Glaski sought compensatorydamages,punitive damages,and a reversal of
foreclosure E. sale. The (1 AA 000203.) Demurrer filed They not matter their to the demurrer that "there Second to the the Amended SAC forged is nothing Complaint 23,2011. of Deborah California law the

Defendants (2 AA Brignac precluding to an agent." burden 00279.) did

on September signature in

contended because from 000287.) proving having

Ms. Brignac (2 AA and

delegated

the signing to defendants, did

of her signature Glaski had the to

According that Brignac

of alleging

not delegate

authority

12

sign her name: "[T]here is no allegation that Brignac had disavowedthe signaturesin question, nor is there any allegation showing that whoever would have signed on Brignac's behalf lacked the authority to sign on her behalf." (2 AA 000290.) Next, defendantsarguedthat "there is no requirementthat any party be a holder of the promissory note in order to enforcethe power of sale in
the deed it was after of trust once that home the borrower's the Glaski loan loan goes was into default." (Ibid.) Trust Thus, until

irrelevant Glaski's

not transferred (1bid.) did not allege

to the

had been maintained

foreclosed. that plaintiff

Defendants fraudulent reliance.

reliance Glaski did

on

the

misrepresentations (1 AA 000191.) also letter certain over trial asked the

(2 AA

000290),

although

plead

Defendants documents--a Morgan the FDIC however, not rely bought took the

the

trial

court and

to take the

judicial

notice under the

of two JP after ruling, and did

from

FDIC

agreement Mutual from

which FDIC

assets

of Washington (2 AA 000305

WaMu. court

to 000352.) notice

In its final request

did not rule (2 AA demurrer.

on this judicial 000410-000412.) (2 AA

on these Glaski

documents. the

opposed had

000383-000399). sale based on

He argued on fraud. the forged

that (2

trial AA

courts

the power

to vacate then

a foreclosure showed

000388-000389). "[T]he

Glaski

reliance with

signature:

act of recording

instruments 13

fraudulent

signatures

sends notice to the public that Deborah Brignac actually signed" the foreclosuredocuments. (2 AA 000389-000390.) "These actsthereby lead Plaintiff andthe public to believethat the partiesin thesenameddocuments held the authority to initiate the Trustee'sSale of Plaintiff's property." (2 AA 000390.) "Plaintiff, having received the fraudulently signed

documents,relied on those documentsin believing . . . that the salewas lawfully conducted." (1bid.) Glaski alsopointed out that defendantshadcited no authority for the proposition that they could useforged signatureson recordeddocumentsto conducta foreclosure. (2 AA 000390-000391.) Glaski concludedthat "Defendantshaveyet to prove that they were either the lenderor beneficiary which would confer upon them the power to foreclose .... Thus,there is no entity with standingto enforcethe power of

sale. Even if the signaturesof DeborahBrignac are found to be legitimate signatures,the assignmentremainsineffective." (2 AA 000393.) Glaski presentedfurther argumentson reliance andhis damages.He lost his home, which defendantsallowed to deteriorateafter the foreclosure sale. He spent considerabletime and money pursing litigation against defendants. The foreclosure ruined his credit so he cannot buy another home. (2 AA
allegations deficiencies. of 000397). the SAC, 000399.) 14 Finally, Glaski if the trial asked court leave was to not satisfied amend to with cure the any

(2 AA

F.

The

Ruling

on

the

Demurrer

to

the

Second

Amended

Complaint. The November 2011. trial court sustained tentative Transcript cause the ruling, demurrer which without it made leave final to amend in a 15,

14, 2011

on November

(Reporter's On the first

[or "RT"],

p. 1 .) the court insisted ratified that Brignac

of action

for fraud, had,

and the

California forged

Reconveyance

Company (2 AA nature of

in effect,

or adopted the trial court

signature that the "the

as her own.

000410.) of California's

Further,

believed prohibited authority 000411.) transferred Countrywide 1149 the

comprehensive introduction

foreclosure challenging (2 AA was not

statutes the

additional to initiate that sale, the

requirements foreclosure." Glaski court loan

of the lender's As for the

nominee allegation

000410properly

before

the foreclosure

the trial Home basis

concluded lnc., 192

"Gomes Cal.App.4

v. th of to (2

[Gomes holds that

v. Countrywide there

Loans,

(2011)] trustee,

is no legal

to challenge of their

the authority agents (a) (I)."

mortgagee,

beneficiary, process citing

or any Civil

authorized subd.

initiate

the foreclosure

Code

2924,

AA 000411.) The wrongful violation loan was trial court foreclosure, found that the remaining relief, solely causes of action---quiet of instruments, that was title, and

declaratory based

cancellation on the

of the UCL---were not properly

allegations signature

the Glaski forged. (2

transferred

and the Brignac

15

AA 000411-00412.) Becausetheseallegations did

legal claim, the trial causes The court sustained (Ibid.) Settlement-JP Practices and Chase Morgan the demurrer

not

support leave

any

viable as

without

to amend

to the other G.

of action. 50 State Their

and

Chase

Agree

to

Change On April consent America Settlement".) Glaski and settlement asks judgment Corp.,

4, 2012, and Case

JP Morgan consent

Home

Finance States (called the

agreed v. Bank "50

to a of State

settlement

in United (D.D.C.)

No.

12-CV-00361

the Court Evidence

to take judicial Code .... " section

notice 452

of this consent (d): "Judicial of...

judgment notice may

under

be taken of record judicial

of the following of the notice United of the notice

matters States ....

[] (d) Records A court courts: of appeal "The

(2) any court to take may Code

is allowed

records

of other

reviewing 452." 719,

court

take judicial section

of nay matter Corp., in

specified

in Section

Evidence

459 (a); Fitz v. NCR The consent called accepted Request Term judgment

118 Cal.App.4 the 50 Sheet." this state

th 702, settlement

fn. 4 (2004). incorporated a

document Finance Appellant's The the

a "Settlement all the for

Term terms of

JP Morgan Settlement

and Term

Chase Sheet.

Home (See

Judicial bars must

Notice forged actually

[or "RJN"], signatures; sign the

at p. RJN the person

000006). as

Settlement signer

Sheet

identified For example,

of a document

document.

16

"Servicer shall ensurethat factual assertions madein...

noticesof default,

notices of saleand similar noticessubmittedby or on behalf of Servicer in non-judicial foreclosures are accurate and complete and supported by competentand reliable evidence." (SettlementTerm Sheet,Section I. A. (1), at p. RJN 000013.) The term "Servicer" includes JPMorgan Chase Bank, N.A..." 000054.) Further, "Affidavits, sworn statementsand Declarations shall not include information that is false or unsubstantiated." (Settlement Term Sheet, Section I. A. (8), at p. RJN 000014.) Finally, "affidavits, sworn statements andDeclarationsshall be signedby handsignatureof the affiant. .." (SettlementTerm Sheet,SectionI. A. (11), at p. R.1N000015) JP Morgan and Chase Home
settlement proper ensure interest otherwise Sheet, forth that they assignment the Servicer could of the not foreclose loan: Finance recognized if they implement a documented (or deed action." In addition, right of trust) (Settlement "Servicer in the 50 state the to

(Settlement Term Sheet,Section IX (B) (2), at p. RJN

on a home shall has

did not have processes enforceable

"Servicer entity mortgage

or the foreclosing note and

in the

promissory party

. . . or is Term shall set

a proper

to the

foreclosure 000020.) the .... party's "

Section the

I. C. (1), at p. RJN establishing

information

to foreclose Term Sheet,

. . . in a Section

communication I. C. (3), page

set to the borrower A-8.)

(Settlement

17

III.

STATEMENT

OF APPEALABILITY

The demurrer 000412.) trial 2011. proposed 000421.) 2011 court (RT

trial without The

court leave case was

issued to amend argued

tentative

ruling

sustaining 14, 2011.

defendants' (2 AA 000410The 15, a AA 30,

on November on November ruling

15, 2011. ruling

(RT

p. 1.)

adopted

the tentative 2 AA trial

as its final

on November submitted 2011. (2

p. 4: 12-14;

000416-000419.) court the on

Defendants 22,

judgment The trial

to the court

November judgment

signed day. nor

proposed

on November However, the judgment

and flied Neither

it the same defendants

(2 AA 000424-000425.) the court clerk (Ibid.) mailed Instead,

to

counsel chose

for Glaski to serve

on November counsel

30, 2011. with a Notice

defense

counsel (2 AA signed December service on

Glaski's

of Entry

of Judgment. was until

000421-000422.) December 10, 2011, was

Although it was

the Notice not mailed

of Entry to Glaski's

of Judgment counsel 000432.)

16, 2011, according

to the proof Glaski 8.104 1, 2012, court

of service.

(2 AA

This (Ibid.)

the first time Under Rule July

knew judgment (a) (1) (B) a notice clerk

had been

entered. Rules be filed party

of the of appeal the

California must

of Court, within

as it

read after

before a party

60 days

or the

serves

opposing

with

a document

entitled

"Notice "(1) notice

of Entry

of Judgment:" or rule 8.108 provides otherwise, of: a

Unless of appeal

a statute must

be filed

on or before

the earliest

18

(B) 60 days after the party filing the notice of appealserves or is servedby a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service .... " Glaski filed his Notice of Appeal on February 16, 2012. (2 AA 000433.) The appealis timely becauseGlaski filed his Notice of Appeal on February 16, 2012, less than 60 days after defendants'counsel servedhis counselwith the Notice of Entry of Judgment. IV,
A. Standard of Review

ARGUMENT

When leave "On

a plaintiff the court an order

appeals of appeal

a judgment reviews after about Los Altos 650 (2006).

granting the trial an order whether

a demurrer court's ruling

without de novo.

to amend, appeal from

of dismissal judgment of law." th 629,

sustaining

a demurrer, states a

we exercise cause

our independent as a matter

the complaint Investors

of action

El Granada

v. City

of Capitola, If "the we must cure

139 Cal.App.4 court sustained

the demurrer is a reasonable If we

without

leave

to amend, the plaintiff

as here, could cure

decide

whether with

there

possibility find

the defect

an amendment.

an amendment

could

the

defect, .... cure (2003).

we

conclude The plaintiff

that has

the the

trial

court

abused of proving

its

discretion that

and

we

reverse would 1082

burden v. City

an amendment 31 Cal.4 th 1074,

the defect."

Schifando

of Los Angeles,

19

Because Glaski Transferred to Sale, Cause (1) His Second of Action Elements cause (1

Alleged that his the Trust Before Amended for Wrongful of a Wrongful the SAC

Loan Was Not the Foreclosure Stated a

Complaint Foreclosure. Foreclosure alleged

Claim of action of for

In its fourth wrongful foreclosure 8 (1970), conversion, property: "Since we there Murphy other may willfully contained liability basic every property (Citations be foreclosure. began where

of action, AA

a cause The tort

000194-000196.) with Munger that wrongful from the v. Moore,

wrongful th 1, 7to real

in California the court that found

11 Cal.App.4 was

foreclosure wrongful

similar of

except

it arose

conversion

conversion with 132]

is a tort which the to the Murphy extent with rule trustor has been

applies case

to personal v.

property, Wilson, 153 that the in

disagree may

[Murphy it purports

Cal.App.2d however,

that

to indicate property applied

be a conversion to believe case liable where oppressive was to that That the sale there articulating

of real property. respect a rule is that or an that

We are inclined, has been for a power This

to real a trustee

jurisdictions.

or mortgagee damages or of sale rule upon Code person his rights." of the that or fraudulent

mortgagor illegal, under of trust ....

sustained

of property or deed in California, declared law infringe omitted; not on by

in a mortgage is also applicable of tort is bound another or footnote

we believe, in the Civil to injure any of added.) italics the

principle person of

liability

omitted;

20

Later action

opinions

have

likened

wrongful

foreclosure are:

to

a cause

of

to set aside "(1) power attacking mortgagor) the trustor mortgagor or was Cal.App.4 Several [T]he

a trustee's trustee

sale, where

the elements caused

or mortgagee sale

an illegal, property of trust; always and the sale, secured

fraudulent to a party or or 202 where (2) the

or willfully of sale the

oppressive sale

of real or deed but not or harmed;

pursuant the the trustor trustor N.A.,

in a mortgage (usually

was prejudiced or mortgagor tendered from the

(3) in cases

challenges amount Lona

of the

indebtedness

excused

tendering."

v. Citibank,

th 89, 103 (2011). federal district courts have allowed when the a homeowner plaintiff because to state a the had

cause

of action party

for wrongful did not have transferred court

foreclosure the power

can allege the courts so in loan

foreclosing never on been

to foreclose

properly

to it.

(California and

appellate often Lewis do

can rely mortgage LLP, 183

unpublished

federal

decisions, LLC

litigation. Cal.App.4 Inc.,

Landmark th 238, 251,

Screens, fn.

v. Morgan, Gomes

& Bockius, Home

6 (2010);

v. Countrywide

Loans,

192 Cal.App.4 For example,

th 1149,

1156 (2011).) v. Suntrust Cal. Dec. Mortgage, 15, 2011), Inc., Judge 2011 U.S.Dist. of the

in Tamburri at *36 (N.D.

LEXIS Northern Code] initiate required

144442, District applies,

Chen [of the entity (a) (1),

held:

"Regardless may still assert

of whether that only

2932.5 an authorized 2924

Civil may which

Plaintiff

foreclosure." "that

He relied

on Civil

Code

section

the notice

of default.., authorized 21

be issued agents.'"

by the 'trustee, Ibid.

mortgagee,

or beneficiary,

or any of their

JudgeChen came to the same conclusion in

Bank, 2012): action N.A., 2012 U.S. courts Dist. have LEXIS recognized where to file 109935, the

Barrionuevo (N.D. Cal.

v. Chase Aug. cause 6, of true

at *22 existence alleged of

"Several for wrongful

of a valid not Default

foreclosure a trustee

a party a Notice

to be the and

beneficiary nonjudicial

instructs foreclosure." federal

initiate

Another Mortgage California note to

judge 279 F.R.D.

held

in

Ohlendorf 583 (E.D. proof

v. Cal.

American 2010)

Home (applying of the against

Servicing, law) legally although, (Italics 2011 U.S. that

575, need not

"defendants

offer

of possession proceedings they have Elec. (C.D. the

institute

non-judicial they See LEXIS a plaintiffs "no beneficial home.")

foreclosure that

plaintiff, foreclose." Sys., 2011) lnc.,

of course, added.) Dist.

must prove Sacchi

right

to

also,

v. Morg.

Registrations Cal. claim June against when 24, a

68007,

at ** 9-10

(refusing alleged

to dismiss to have

wrongful interest

foreclosure in the Deed

defendant it acted

of Trust

to foreclose These

on Plaintiffs' apply

decisions claim sale when

the California caused

opinions an illegal,

that

allow

a wrongful or willfully or

foreclosure oppressive deed

a "trustee

fraudulent

of real property " Lona Cal.App.3d without

pursuant

to a power

of sale in a mortgage th at 103; Munger a foreclosure and pursue

of trust .... 11 by

v. Citibank, at 7. the

N.A., They

202 Cal.App.4 conclude that

v. Moore, initiated

sale a

a party

power 22

to declare

a default

foreclosuresaleis "willfully oppressive." Tamburri

Inc., 2011 U.S.Dist. Servicing, LEXIS 279 144442, at *36;

v. Suntrust

Mortgage, Home

Ohlendorfv.

American

Mortgage entity

F.R.D.

at 583. Civil claim

A foreclosure Code section even each 2924

by an unauthorized (a) (1). Ibid. as the illegal, 202

also is illegal, A wrongful

as it violates foreclosure

can

exist of "

without other: v. Citibank, the specific

fraud, "an

bases

for

such

are

claim

are

independent sale .... need not

fraudulent Cal.App.4 statements charge

or willfully th at 103.

oppressive A plaintiff reliance the power

Lona allege

N.A.,

fraudulent that he the

or reasonable without

on those

statements. initiated

It is enough

that party and

to foreclose

and prosecuted

foreclosure Inc., 2011

that he suffered LEXIS

prejudice.

Tamburri

v. Suntrust

Mortgage, Home

U.S.Dist. Servicing, SAC on two

144442,

at *36;

Ohlendorfv.

American

Mortgage

279 F.R.D. met these

at 583. tests. His wrongful Brignac foreclosure signature cause and of the

Glaski's action failure the upon June rested

allegations--the parties to assign

forged

by the foreclosing Paragraph alleges

his loan stated:

to the Trust "Plaintiff

that ordered believes and

foreclosure. such belief

70 of the that the

SAC

Assignment property's alleged:

of Deed Deed

of Trust

recorded (1

15, 2009

assigned Paragraph

the subject 71 then

of Trust

to BANK." failed

AA 000195). the Trust with

"Defendants... prior

to provide Date of the

an endorsement

of the Note

to the Closing

23

Trust. Plaintiff thus alleges . . . that the Trust did not have standing to forecloseon the SubjectProperty.... " (Ibid.) The wrongful foreclosure causeof action concluded: "Plaintiff...
contends that Defendants prove an cannot prove which in loan that had the trust held date Deed assigned Plaintiff's of December of Trust, as loan, 21, the until

nor can they 2005, had

that the trust, interest Plaintiff's

a cut-off

ownership that

Plaintiff's was not

documents 2009,

indicate

to the

trust

approximately Glaski

four years the

after

the trust closed." Deed of the Upon action. Trust

(1 AA Sale (1 was

000196.) into AA his SAC,

incorporated wrongful Trustee's Deed to the and

Trustee's cause that

including 000244.) under not June

his The

foreclosure Deed stated (1 AA until June that, to issue the power the

000195,

the

beneficiary of Trust was dated two

Glaski's transferred 11, 2009

of Trust. Trust

000244.) Assignment

Yet, the Deed of Deed 000238.) caused

of Trust These

recorded

15, 2009. when the Notice to foreclose. to the the

(1 AA Trust of Default

documents Reconveyance of Sale,

established Company

Califomia the Notice

and then

it did not have Because

defendants

demurred must

wrongful as true. whether the

foreclosure Blank

cause

of 39

action, Cal.3d them.

all of its allegations 311, Alcorn 318 (1985).

be accepted

v. Kirwan, can

It is irrelevant Engineering, Inc.,

plaintiff

prove

v. Ambro

2 Cal.3d

493,496

(1970).

24

(2)

Cases Similar to Glaski's Foreclosure Claim. v. Chase Bank, N.A., loan loan

SAC

Allow

Wrongful

In 109935, "WaMu." happened attempted The the plaintiff

Barrionuevo the plaintiff WaMu in Glaski's

2012

U.S.

Dist.

LEXIS or as

obtained later

a home the the

from to

Washington an investment

Mutual trust, JP Morgan

assigned case. claiming When

plaintiff the loan

defaulted, and was that, Judge the when Chen

to foreclose, sued

it held foreclosure, hold

beneficiary. it initiated refused to

for wrongful

alleging the loan.

foreclosure, the claim:

JP Morgan

did not

dismiss

"Plaintiffs 'beneficial a nonjudicial present the these DOT. sufficiently .[U]nder legal 2012 power legal

properly holder' case, right DOT []

assert of a Deed

that

only

the

'true law ....

owner' [] In

or the

of Trust that that

can bring Chase the prior

to completion and California without of in the have the N.A., precluded

foreclosure [plaintiffs] recorded to do by [T]his stated a law, so." from so,

under allege their... given

California Notice Mutual finds for that wrongful

Reconveyance Plaintiff's

of Default in 2006 the

alienation interest Plaintiffs

Washington obtaining Court claim a party 109935, a federal foreclosure had than plaintiff been

Defendants

any beneficial

foreclosure... without Bank

California to do

may not foreclose v. Chase at ** 21, 26-27. court

Barrionuevo

U.S. Dist. WaMu

LEXIS case,

In another plaintiff the had stated

in Los Angeles against

found

that the because Mutual lacked

a wrongful the loan rather the

claim assigned

JP Morgan

plaintiff

alleged Corporation," to foreclose,

to "Washington Because for JP Morgan

Securities to power

JP Morgan. could sue

wrongful

foreclosure.

25

Javaheri *5-6 Sys., (C.D. Inc.,

v. JP Morgan Cal. June 2011

Chase 2,2011);

Bank,

N.A.,

2011

U.S.

Dist.

LEXIS

62152,

at

see also, 68007,

Sacchi

v. Morg.

Elec.

Registrations

U.S. Dist. cases are

LEXIS identical

at ** 9-10. wrongful of action the entity cause He has because of loan foreclosure when and the thus the for that claim. plaintiff held power wrongful defendants to the his home for no to

These They alleged beneficial foreclose, foreclosure. lacked Trust was any well sold. uphold that

to Glaski's cause

a wrongful the foreclosing Because

foreclosure entity the

did not hold foreclosing state a

interest. the

lacked action alleged it was well

plaintiffs Glaski has

could done the

same. loan

beneficial after That

interest date

in his

assigned after

the closing allegation

for the trust

and indeed out

is enough

to make

a cause

of action

wrongful

foreclosure. (3) A Homeowner Can Challenge the Authority of an

Entity The the idea initiate trial court's

to Foreclose. on defendants' could demurrer to the SAC relied on to v. that

ruling

that a homeowner a foreclosure: Home "But, Loans,

never

challenge Gomes Cal.App.4

the authority v. Countrywide th 1149 (2011)]

of a party [Gomes holds

to reiterate, Inc., 192

Countrywide there

is no legal

basis

to challenge

the authority agents (a) (1)."

of the trustee, to initiate (2 AA the

mortgagee, foreclosure Gomes

beneficiary process citing

or any Civil

of their Code

authorized subd.

2924,

000411.)

26

ruled, however, that a plaintiff can attackthe authority of

a foreclosure the if his complaint was "identified a by the specific correct

a party factual party." (italics

to conduct basis Gomes added). ta 256, 271of of sale having for v.

alleging

foreclosure Home

not initiated

Countrywide

Loans, v. Wells upheld

lnc.,

192 Cal.App.4 Bank, N.A.,

m at 1156 198

In Fontenot 272 (2011), action action was against ultimately invalid

Fargo

Cal.App.4 foreclosure

the court MERS seeks

a demurrer The

to a wrongful court wrote

cause cause

and HSBC.

that "Plaintiff's

to demonstrate HSBC lacked

that the nonjudicial authority to foreclose,

foreclosure never

because

received claim MERS

a proper failed because

assignment she was was

of the debt." "required but

Plaintiff's

wrongful

foreclosure

to allege also manner. alleged that

not only that the purported HSBC did not receive allegation." of the an

assignment

invalid, in any

assignment (Italics loan,

of the debt

other

There

is no such

added.) she would These

If plaintiff have had apply

could a case. a simple

have ld.

an invalid

assignment

cases

principle: a judge

"Where is entitled

a [party to ask

claims for proof

legal that of "

title]

after

a mortgage entity

foreclosure, was or was Assoc.

the foreclosing sale

the mortgage one

holder

at the time authorized

of the notice to foreclose 2011), 2011 ....

and foreclosure, National

of the parties 941 N.E.2d Elec.

U.S. Bank with Dist.

v. lbanez, v. Morg.

40, 52 (Mass. Sys., Inc.,

cited U.S.

approval LEXIS

in Sacchi 68007,

Registrations

at * 21. 27

Glaski alleged in his SAC "that Defendantscannot prove that the trust held Plaintiff's loan, nor canthey provethat the trust, which had a cutoff date of December 21, 2005, had an ownership interest in Plaintiff's Deed of Trust, as the documents indicate that Plaintiff's loan was to assignedto the trust until 2009, approximately four years after the trust closed." (1 AA 000196.) This statementis exactly the kind of specific, factual allegation the
wrongful foreclosure Gomes and Gomes Fontenot does courts hold the trial will support ruling a

claim.

not support

court's

on the demurrer. The foreclosure foreclosure is to provide every trustee.., policy trustor.., trial court also thought that allowing with Glaski the to allege nature wrongful of the

somehow process. a quick, could

would "The policy

interfere behind and

speedy

the nonjudicial efficient remedy foreclosure to initiate The trial

foreclosure for default

statutes .... If the the v.

inexpensive challenge to prove their

nonjudicial authority 000411.)

by requiring the foreclosure,

beneficiary would

be thwarted." 192 Cal.App.4 in turn, cited

(2 AA

court

cited

Gomes

Countrywide, Gomes, (1994), Lien,

_ at 1154-1155, Moeller

for this proposition. 25 Cal.App.4 th 822, In Moeller the "(2) foreclosure to protect v. Lien, 25 830 v.

v. Lien,

as authority. however,

Gomes,

192 Cal.App.4 another remedy

th at 1154-1155. purpose cited behind

the court

identified

statutes, the

in additional from

to the speed wrongful

by Gomes:

debtor/trustor

loss of the property." 28

Moeller

Cal.App.3d at 830. Permitting a wrongful foreclosuresuit to challengethe authority of a party to forecloseupholds this principle, becauseit prevents the wrongful loss of a home. Even the Gomes
suit was foreclosing Countrywide, Cal.App.4 proper when the plaintiff did not have could the allege power Fontenot above, made court recognized facts that such showing Gomes Bank, a the v. 198

specific to

entities

foreclose. Fargo specific

192 Cal.App.4 th at 271. Glaski,

th at 1156; as shown

v. Wells such

allegations

of fact in his wrongful Contrary 000291-000292), have rejected to

foreclosure defendants' is not

cause assertions

of action. before the note" under note. the case. trial court (2 AA

this

a "produce

California of trust cases claim

courts cannot cited does by not

the proposition it produces 000292). are unable assigned

that a beneficiary the original loan

a deed (See

foreclose defendants charge was not

unless

at 2 AA

Glaski's to produce to Trust

wrongful his note. the has

foreclosure He alleges Trust physical

defendants properly

that the note (1 AA of the to the issue was a

before Trust

foreclosed. possession of the Company after note

000196). note

It is irrelevant What the

whether is the

the

or note.

matters had

too-late

assignment

Trust--after Notice sold.

Trust and

California

Reconveyance Sale, and

of Default (1bid.)

a Notice

of Trustee's

the home

29

(4) A plaintiff allege Cal.App.4 that he was

Glaski can assert

Has Alleged a wrongful or harmed."

Prejudice foreclosure Lona 11 Cal.App.3d breaches

and Damage claim v. only if he can N.A., 202

"prejudiced

Citibank, at 7. wrongful

th at 103; Munger of the

v. Moore,

Glaski

alleged by an AA

as "a result

above-described has suffered at trial,

and

conduct in (1

Defendants, amount 000196.) This reasonably City

Plaintiff according

general but not

and less

special than

damages $1,000."

to proof

cause

of action

also must

be read to amend 1082 That

against

the allegations

Glaski v. at also pain. the

can make

if he is allowed 31 Cal.4 th 1074, (1 AA 00187.)

his complaint. Glaski prejudice. including forecloses of

Schifando lost his home This emotional on a home, loss

of Los Angeles, sale. any held can

(2003). shows harm,

a foreclosure would One cause case has

homeowner that sue

significant

if a lender for intentional Assoc.,

wrongfully infliction 2012

homeowner Raglandv. 41 (Cal. damages

emotional LEXIS 965,

distress. at ** 39to claim

U.S. Bank Ct. App.

National

Cal.App.

Sept.

1 l, 2012.) distress.

So, Glaski Those damages the

can amend establish Glaski

his SAC prejudice. argued his ability

for emotional In addition, when

he opposed rating

demurrer,

that

the

foreclosure another

had ruined home. (2 AA

his credit 000397.)

and thus damaged Glaski

to buy

Further,

incurred

considerable

3O

expense, including attorney's fees, in pursuing this case against the defendants.(Ibid.) That expensedemonstrates prejudice. Finally, Glaski was pursuing a modification of his loan when he lost his home in the foreclosuresale: "From March until May, 2009, Plaintiff was led to believe that a loan modification was in the processthrough JP MORGAN, per negotiationsmade with Chase Home Finance,LLC." (1

AA 000186.) When Glaski filed an application for a TRO to stop the foreclosure sale,he submitteda declaration outlining his loan modification efforts. (1 AA 000043-000046.) He can reasonably allege that, if the foreclosure had not occurred in May 2009, he would have completed the loan modification processand been approvedfor a modification. (1 AA 000186.) He would havekept his home. Thosepotential allegationsshow prejudice. Defendantslikely will arguethat Glaski alreadyhad defaultedon his loan and was doomed to lose his home anyway. But, the SAC makesno suchcharge,andits allegationscontrol.
2 Cal.3d at 496. Whether to judicial dispute Glaski notice and to sources not would under Alcorn have v. Ambro Engineering, in any Inc., case is

lost his home Code

not a fact subject it is subject to

Evidence of

section and

452 (h), as accurate

"capable of reasonably

immediate indisputable

determination

by resort

accuracy."

31

(5) Contrary AA loan 000293-00294), before he only Savings v. Great 1225 therefore (1985). is not could

Tender to defendants' Glaski state

is Not Required. contention was in their demurrer the to the balance SAC (2

not required for

to tender

of his is v. Cold

a claim seeking Cal.App.4th Savings

wrongful relief. 1109

foreclosure. See, (1996), e.g., and 165

Tender Abdallah U.S.

mandated United Storage 1214, and

for claims Bank, 43

equitable 1101, & Loan

Western A claim subject

Association, not request such

Cal.App.3d relief rule.

for damages to equitable cause nearly

does

equitable

defenses,

as the tender the v.

Wrongful courts

foreclosure have recognized at 1.

is a tort for

of action 40 years.

for damages Munger cause

California Moore, 11

Cal.App.3d only damages.

Glaski's

wrongful

foreclosure

of action

requests

(1 AA 000196.) "will not sale cases, and is not be required has a when the person or the who set-off and seeks against the to set the

A tender aside the

trustee's In such one

counter-claim that

beneficiary. claim amount Cal.App.4 alleges balance offset due,

it is deemed if the offset

tender

counter than the 202 Glaski $650,000

another,

is equal Lona Cal.2d more with v. 752,

to or greater Citibank, 755 offset (1954). the

a tender

required." 42 which

N.A.,

th at 113; Hauger damages of over

v. Gates,

$1 million,

than

of his loan.

(Compare

1 AA 000196

1 AA 000044.)

32

Finally, the tenderrule doesnot apply to a salethat is void becauseit was obtained by fraud.
Cal.App.4th at 113. Glaski 868, 876-877 Dimock (1977); v. Lona forged Emerald v. Citibank, signatures Sale, Properties, N.A., LLC, 81 th on of that

202 Cal.App.4 Brignac

alleges

fraud--the the Notice

of Deborah and the

the Notice Deed the

of Default, (1 AA

of Trustee's

the Assignment SAC charges

of Trust. defendants utilizing date,

000194-000195.) Glaski's legal loan

In addition, to the Trust to assign ineffective, Sale.

transferred a forged the

by fraudulent of Trust precluding

means: after the these the

"[By] closing

instrument becomes

a Deed thus

assignment

Defendants Trustee's These Inc.,

. . . from Sale void

conducting

a Trustee's (Paragraph as true. was

Thus SAC, v. Ambro

rendering 1 AA

ab initio."

73 of the Alcorn

000196.)

allegations 2 Cal.3d

must at 496.

be accepted Because

Engineering, fraud, supra. it

the sale

accomplished Lona

through N.A.,

was void C.

and the tender Because

rule does Glaski

not apply.

v. Citibank, was

Alleged and Because

His Loan He He Stated

not Properly the Brignac of Causes

Transferred,

Alleged

Signatures were Forged, Action for Fraud.

Two

(1) The action the SAC

The First stated two

Cause causes forged of

of Action of action

for

Fraud The first cause of on 2009

for fraud.

charged March 10,

that

defendants Notice of Trust.

the signature Sale

of Deborah and the June

Brignac 15,

2009

Trustee's

Assignment

of Deed

(1 AA 000189).

By this forgery,

defendants

33

represented"to the public

Deborah MORGAN." the Trustee's The action Brignac, (1bid.) Sale trial servicing The

that these as both

documents Vice

actually President documents of

were CRC "was

signed and

by JP

purpose

of the forged property." defendants' (2 AA 000410.)

to initiate

of the subject sustained to amend.

(1 AA 000190.) demurrer to the first cause of that that adopt

court leave

without

It concluded, or ratified

in effect, it, may and also

defendants authorization his signature approval . []

had

authorized

and forgave

the the

forgery forgery: as valid

or ratification written

"A party or binding, was 'forged,'

by another even signature it as valid." several

person,

by subsequent forged... ratified the

or ratification, if the

though

the signature was

originally CRC

[E]ven

of Brignac (Ibid.) with the Mena

signature

by treating There are did was person's

problems

this

reasoning. of having one Chase Sept.

First, person Bank,

what sign N.A., (robo

defendants another

"robo-signing," See, 128585, Deborah e.g.,

practice

name. LEXIS

v. JP Morgan (N.D. Several Chase JP ensure Cal.

212 U.S.Dist. signing also

at ** 13-14 Brignac). v. JP Morgan settlement, shall

7, 2012) have

involving See,

courts Bank,

questioned supra. to ban the

this practice. In practice. in... the For notices

e.g., Mena 50 state

N.A., agreed

recent example,

Morgan that

"Servicer notices

factual notices

assertions submitted

made by or

of default,

of sale and

similar

on behalf

of Servicer

in non-judicial

foreclosures 34

are accurate

and complete

and supported by competent and reliable evidence." (Settlement Term Sheet,SectionI. A. (1), at p. RJN 000013.) Second, in effect the trial court's reasoning allows defendantsto benefit from their own wrong. Even if the Brignac signature is forged, defendantscan validate the forged documentsmerely by claiming that they authorized or ratified the forgery. But, under California law, a party
Ragland v. U.S. Bank Civil Code National section

"cannot take advantageof its own wrong."

Association, 3517. Third, authorized as Glaski pointed the forged out to the 2012 Cal.App. LEXIS 965,

at * 26, citing

trial was

court, an issue Glaski

whether of fact

defendants that could in his and the Inc., to

or ratified

signature (RT 2: 2-14.)

not be resolved complaint allegations 2 Cal.3d judicial disputed resort that

on demurrer. defendants had

did the

not allege signature, Engineering, a fact because determination

authorized

or ratified Alcorn

of his complaint at 496. notice and

controlled.

v. Ambro was 452 accurate not (h),

Authorization under Evidence of

or ratification Code immediate indisputable reasoned section and

subject

it was by

not

"capable of reasonably

to sources Fourth,

accuracy." that "the prohibits exhaustive the nature of of

the

trial

court

California's additional to initiate

nonjudicial requirements nonjudicial

foreclosure challenging foreclosure."

scheme the

introduction nominee italics

authority (2 AA

of the

lender's

000410-000411;

in

35

original.)

In practice, this means that a foreclosing party can commit

outright fraud, becausefraud is not mentionedin the foreclosure statutes, Civil Code sections2924 et seq. California law barsfraud. SeeCivil Code sections1708and 1710. In addition, California law imposescriminal penaltiesfor knowing forgery of a contractor assignmentof a note. PenalCodesection470 (d). The anti-fraud and forgery statutesmust be readtogetherwith the foreclosurestatutes,so that all can be given effect. California law frowns on any attemptto say that one statuteoverrides anotherstatute.
Fleetwood the Enterprises, statutes they lnc, barred the 17 Cal.4 th 985,992 any claim and (1998). Murillo v. that court

By concluding the trial This

foreclosure that and

for fraud forgery

or forgery, statutes.

implied The thus fraud

overrode

fraud must

is not true. statutes, process. th at

forgery

statutes

be applied fraud

with the foreclosure in the foreclosure

allowing Fifth,

a homeowner the trial for the As court

to challenge cited Gomes that above,

v. Countrywide,

192 Cal.App.4 barred v.

1154-1155, for fraud.

proposition out

the foreclosure Gomes cited

statutes Moeller In Moeller statutes Moeller

a claim Lien, 25 the

pointed

Cal.App.4 court the held

th at 830 another

as authority. purpose behind

Gomes, the loss a fraud of

supra.

v. Lien, was

foreclosure his home. affirms

to protect v. Lien, 25

homeowner

form

wrongful

Cal.App.3d it prevents

at 830.

Permitting

claim

this principle,

because

the wrongful

loss of a home. 36

(2) The fraudulently 000191-000192.) he charged disclose conducted by assigning and The to Second

The Second cause of that

Cause action they had

of Action for fraud the

for

Fraud that defendants (1 AA as to

alleged

represented In effect,

power a claim

to foreclose.

Glaski

also pleaded mislead including sale after the

for concealment, by failing that Defendants the

that "Defendants Plaintiff a non-judicial the Deed the

intentionally true facts,

Plaintiff... the any fact

foreclosure of Trust

without date

right

under pursuant

law

allowed Trust.

to the

Pooling

Servicing trial court

Agreement sustained

of the WaMu" defendants'

(1 AA 000192.) to this cause of action

demurrer

without "Gomes authority agents (1)."

leave

to amend.

(2 AA holds that

000410.) there

The is no

trial

court

reasoned

that the

v. Countrywide of the to initiate trustee,

legal

basis

to challenge authorized subd.

mortgagee,

beneficiary citing

or any Civil Code

of their 2924,

the foreclosure

process

(a)

(2 AA 000411.) But, as explained the authority a specific by the correct th at defendants above, of a party factual party." 1156 (italics concealed basis even the Gomes court ruled that a plaintiff if his complaint was Loans, that had not Inc., by not

can attack "identified initiated 192

to conduct for

a foreclosure the

alleging

foreclosure Home does that

Gomes

v. Countrywide Glaski him the fact

Cal.App.4 that

added). from

exactly his loan

alleging

37

beenproperly assignedto the foreclosingtrust andthat defendantstherefore did not havethe power to foreclose. (1 AA 000191-000192.)
(3) Although contended on their plead in their alleged the Glaski trial Pleaded court did Reliance. not SAC rule that (2 AA on this Glaski argument, defendants reliance did

demurrer

to the

did not plead

false

representations.

000289-00290.) that the knew

Glaski fraud that

reliance

in paragraph for a loan

50 of the SAC

by stating

caused

him to apply recording would negotiate LLC, purpose Alcorn

modification: of Deed to rely on

"Defendants... of Trust without

the act of to do to

the Assignment cause Plaintiff

the authorization by attempting Home added.)

Defendants"

actions of Chase italics must

a loan

modification

with representatives (1 AA 000191;

Finance, For the

agents

of JP MORGAN." on the demurrer, Engineering, this Court to Inc., must its

of ruling v. Ambro In addition,

this allegation 2 Cal.3d consider at 496.

be accepted

as true.

whether if

Glaski any,

can reasonably on the reliance The SAC

amend question.."

his

complaint Schifando

cure

deficiencies,

v. City of Los Angeles, to allege several

31 Cal.4 th at 1082. acts of reliance. when

can reasonably Glaski (1 AA signature gone charged 000186).

be amended

For example, he lost his home. the Brignac have He

he was pursuing If defendants Notice

a loan modification had revealed Sale 2009, 38 was the

truth--that

on the

of Trustee's or May

forged--Glaski the foreclosure

could sale.

to court

earlier,

in April

before

could have askeda court to block the sale basedon the forged signature. He also could have filed for Chapter 13 bankruptcy to stop the sale.
e.g., Aceves v. U.S. Bank National Assoc., 192 Cal.App.4 th 218, See,

229-230

(2011). One plaintiff Day, Corp., way to judge have acted reliance had in a concealment case is to ask how Vega the

would

the defendant th 282,

told the truth. 292 (2004); could loan had

v. Jones, v. AT&T had

Reavis

& Pogue,

121 Cal.App.4 th 151, to Glaski

Lovejoy have

119 Cal.App.4 revealed and have that been

157 (2004). the truth have

What that the

happened

defendants assigned would assigned Default, default. which

not been

properly

they

did not

the power

to foreclose? After issued

Defendants the loan Notice was of the Sale,

compelled in June have would

to restart 2009, given have Glaski they

the foreclosure. would 90 a new have days

to the Trust which They would would then have

a new

Glaski issued another

minimum

to cure

Notice

of Trustee's

provided

20 days. the truth, Glaski other would have see, had e.g., or he Assoc., he could that his

In short, more Garcia could supra. have time.

had

defendants have used 183

revealed that

He could

time to find th 1031,

financing,

v. Worm have Or, filed since

Savings, for

Cal.App.4 Aceves applied

1041-1042 Bank

(2010), National

bankruptcy. had his

v. U.S. for a loan He

he already to prosecute

modification, could allege

continued

application.

39

modification requestwould havebeen granted and he would have kept his home. Thosepotential allegationsshowreliance.
D. Because Based Causes The relief, were Because the trial court Glaski's on the of Action, sustained Remaining Fraud They the and Should Causes Wrongful of Action Were

Foreclosure

Be Reinstated. to the quiet causes foreclosure causes title, declaratory because of they action.

demurrer and UCL

cancellation based on

of instruments, the fraud and those

of action causes of action, The of action

wrongful foundational (2 AA

it had

dismissed claims Because

it dismissed same logic

remaining here.

as well. Glaski

000411-000412.) causes

applies

clearly

alleged

for wrongful of the UCL, be

foreclosure cancellation restored.

and

for fraud,

his causes declaratory

of action relief,

for violation and quiet

of instruments,

title

should

In addition, by violating some engaged

a plaintiff other

can allege or

that

a defendant statute

violates or by

the stating

UCL the lnc. Glaski

California

federal

defendant

in deceptive Telephone five

conduct.

Cel-Tech

Communications, 180 (1999). section without U.S. 2924

v. Los Angeles alleged which do violations courts

Cellular

Co., 27 Cal.4 th 163, statutes-----Civil Code

of at least read v. JP

(a) (1), to

have

to bar a foreclosure Morgan Code (d), Chase sections which Bank, 1709 bars 4O

by a party N.A., and forgery;

the power Dist. prohibit Code LEXIS

so, Javaheri

2011

62152, Penal

at ** 5-6; Civil Code section

1710, and

which Civil

fraud; section

470

1572(3), which prohibits fraudulent concealment.Glaski hasdemonstrated injury, as requiredby Business

he has alleged The 39 Cal.3d claim reliance bars & Professions Code section stated 17204, above. Blank has v. Kirwan, a UCL because

and damages, deceptive

for the reasons such

UCL at 329.

conduct, alleging v. Kirwan,

as fraud. Glaski

By successfully acts. Blank

fraud, supra.

stated

for deceptive A cause

of action

for cancellation sale. Lona

of instruments v. Citibank, N.A., an either

is similar 202 illegal tender has illegal,

to a claim th at

to set aside 103. The

a foreclosure elements prejudice

Cal.App.4 or

of the to the from was

cause

of action

are and

fraudulent of the that loan the

foreclosure, balance foreclosure several And, or

homeowner, tender. fraudulent prejudice 1bid.

an

excuse home

Glaski and was damage,

alleged as

of his

it violated above.

statutes. he is excused Finally,

He has alleged from tendering, title cause

and

as explained above. of the same

as also explained of action foreclosure Because fraud, has many

a quiet

elements

as a cause Lona action

of action

for wrongful N.A., supra.

or cancellation Glaski has stated

of instruments. valid causes of he

v. Citibank, for wrongful a quiet

foreclosure, title claim.

and

cancellation

of instruments,

has stated

41

V.

CONCLUSION

For these reasons,plaintiff and appellant THOMAS A. GLASKI respectfully requeststhat thejudgment of the trial court be reversed. Dated: September25, 2012 LAW OFFICESOF CATARINA M. BENITEZ

By: CatarinaM. Benitez Attorneys for Plaintiff and Appellant ThomasA. Glaski

42

CERTIFICATE Calif. The Word Dated: 2007 text word Rules

OF WORD Rule of used

COUNT 8.204 (c) (1). as counted the brief. by the

of Court, consists program

in this brief processing 25, 2012

10,021

words,

to generate

September

LAW OFFICES OF CATARINA M. BENITEZ

By: Catarina Attomeys M. Benitez for Plaintiff and

Appellant Thomas A. Glaski

43