Dillenberg v. U.S. Bank CA2/3

Filed 11/26/13 Dillenberg v. U.S. Bank CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

BRETT P. DILLENBERG, as Trustee, etc., et al., B246432

Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. BC406467) v.

U.S. BANK, N.A., as Trustee, etc., et al.,

Defendants and Respondents.

APPEAL from judgments of the Superior Court of Los Angeles County, Terry A. Green, Judge. Dismissed. Arias Ozzello & Gignac, Mark A. Ozzello and Mark F. Didak for Plaintiffs and Appellants. Albertson Law and Gina L. Albertson for Defendants and Respondents U.S. Bank National Association et al. McCarthy & Holthus, Melissa Robbins Coutts and Matthew B. Learned for Defendant and Respondent Cenlar FSB.

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Plaintiffs and appellants Brett P. Dillenberg and Karla M. Burns, as trustees for the Dillenberg Family Trust, individually and on behalf of all others similarly situated (collectively, plaintiffs), appeal judgments of dismissal following the sustaining without leave to amend of demurrers interposed by defendants and respondents U.S. Bank National Association (hereafter, USB), Successor Trustee to Bank of America, N.A. (Successor by Merger to LaSalle Bank, N.A.) as Trustee, on behalf of the holders of the Thornburg Mortgage Securities Trust 2005-3 Mortgage Loan Pass-Through Certificates, Series 2005-3; Wells Fargo Bank, N.A. (Wells); Select Portfolio Servicing, Inc. (Select); Bank of America, N.A. (BofA); and Cenlar, FSB (Cenlar), a nationally chartered savings bank (collectively, defendants). In this action, plaintiffs contend defendants are imposters who falsely claim the right to collect plaintiffs’ mortgage payments. However, during the pendency of this appeal, plaintiffs refinanced and voluntarily repaid the loan which defendants were seeking to enforce, thereby mooting this controversy. Accordingly, the appeal is dismissed. FACTUAL AND PROCEDURAL BACKGROUND 1. Pleadings. In June 2005, plaintiffs obtained a $1.4 million loan, originated by Platinum Capital Group (Platinum) and secured by a deed of trust on the real property located at 1405 Chelsea Road in Palos Verdes Estates. Between June and September of 2005, the loan allegedly was sold three times: (1) from Platinum to Thornburg Mortgage Home Loans, Inc. aka TMST Home Loans, Inc. fka Thornburg Mortgage Home Loans, Inc. (Thornburg); (2) from Thornburg to Structured Asset Securities Corporation (SASC); and (3) from SASC to Thornburg Mortgage Securities Trust 2005-3, a Real Estate Mortgage Investment Conduit (REMIC). Plaintiffs allege that none of the above transfers was validly completed because the note was not negotiated to the successive transferees. Nonetheless, the REMIC, its trustees USB, BofA, LaSalle Bank (LaSalle), and the REMIC’s master servicer, Wells, claimed the right to service the note and deed of trust. REMIC’s ownership of the note