Just a little bit of good news. The following tentative ruling was confirmed. The judge agrees the assignment is invalid because it violates CCC 1095. Now how will the defendants prove they have an interest in the plantiffs home when they go to trial?
Summary adjudication of the 2nd cause of action for fraud is denied. Plaintiff alleges that Defendants falsely represented that they had the authority to sell her property and concealed from her that they had no such authority because they had never recorded an assignment of the Deed of Trust. Defendants show that there was a recorded Assignment of Deed of Trust dated March 26, 2008, wherein New Century purported to assign to Deutsche Bank all beneficial interest under the Deed of Trust. However, Plaintiff correctly asserts that this assignment is invalid for the reason it violates CC § 1095, in that it was executed solely by Wells Fargo as attorney-in-fact for New Century, without subscribing New Century’s name. See Morrison v. Bowman (1865) 29 Cal. 337, 341, 352; Mitchell v. Benjamin Franklin Bond & Indem. Corp. (1936) 13 Cal.App.2d 447, 448.
Regardless, Defendants contend in their reply that Plaintiff has admitted that Deutsche Bank entered into a Pooling and Servicing Agreement (“PSA”) dated March 1, 2006, and that pursuant to ¶ 2.01 of the PSA, Morgan Stanley Capital I, Inc., as Depositor, conveyed to Deutsche Bank, as trustee, “the right, title and interest to the subject Deed of Trust and subject Promissory Note.” Defendants assert that this concession by Plaintiff alone is sufficient to sustain summary adjudication in Defendants’ favor. The court disagrees. There is no evidence, submitted by either Plaintiff or Defendants, that the PSA or any of the other documents attached to Plaintiff’s request for judicial notice actually involve Plaintiff’s mortgage. There is only Plaintiff’s assertion to that effect in her opposing argument. The documents provided in Plaintiff’s request for judicial notice include only a few select pages from each of the documents, and it is not shown that Plaintiff’s mortgage is necessarily included in them.
Summary adjudication of the cause of action for declaratory relief is denied for the same reasons applied to the fraud cause of action.
Summary adjudication of Plaintiff’s cause of action for quiet title is denied for the reason Defendants fail to address the entire cause of action as alleged. Contrary to Defendants’ assertion, rescission under the TILA is not the sole basis for Plaintiff’s claim, as she also seeks to quiet title at ¶ 162 on the ground Defendants’ claims “are without any right, and Defendants have no title, estate, lien, or interest in the Subject Property.” Because Defendants have not prevailed in regard to Plaintiff’s fraud cause of action, Defendants cannot assert that they have also shown Plaintiff is not entitled to quiet title on this basis. In addition, Defendants fail to address Plaintiff’s express allegations that she is excused from tendering the full amount of the loan. (¶¶ 164, 165.)
Defendants’ objections are sustained. The parties’ requests for judicial notice are granted.