Keshtgar v. U.S. Bank

Filed 6/9/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SAEED KESHTGAR, 2d Civil No. B246193 (Super. Ct. No. CV120282A) Plaintiff and Appellant, (San Luis Obispo County)

v.

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

Defendant and Respondent.

Plaintiff obtained a loan secured by a deed of trust on real property. The loan is in default. He brings this action against the bank, as trustee of a mortgage trust, to prevent the bank from initiating foreclosure proceedings. An insuperable barrier stands in his way, California's nonjudicial foreclosure statutes. Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, explains why actions such as plaintiff's are subject to demurrer. One would think, indeed hope, that Gomes would put an end to cases like the instant one. For some hopefuls, Glaski v. Bank of America, N.A. (2013) 218 Cal.App.4th 1079, holds out the tantalizing prospect of a preemptive action to challenge a foreclosure. It does not. The yearning for a holding does not create one. The trial court sustained the bank's demurrer to plaintiff's first amended complaint without leave to amend. We affirm the ensuing judgment.

FACTS In May 2005 plaintiff Keshtgar executed a note for $910,000 secured by a deed of trust on real property, recorded on June 10, 2005. The deed of trust named Resource Lenders, Inc., as the lender, Cuesta Title, as the trustee, and Mortgage Electronic Registration Systems, Inc. (MERS), as the beneficiary acting as nominee for the lender, its successors and assigns. On October 19, 2011, the deed of trust was assigned to U.S. Bank National Association, as trustee for the certificate holders of Harborview Mortgage Loan Trust (U.S. Bank). The assignment was executed by Alice Rowe, a MERS assistant secretary, and recorded on November 4, 2011. Keshtgar's first amended complaint alleges on information and belief that Rowe is not an assistant secretary, employee or agent of MERS; not an employee or agent of Resource Lenders; has no written authority to convey any real property that MERS or Resource Lenders may have; and neither the board of directors of MERS or Resource Lenders approved the conveyance. The complaint also alleges U.S. Bank did not receive an assignment of the note, was never in possession of the note, never acquired the rights of nor is a successor to MERS or Resource Lenders. The complaint further alleges on information and belief that the mortgage assets held in trust by U.S. Bank are governed by a pooling and service agreement (PSA); that the PSA requires the trust assets be treated as a Real Estate Investment Conduit (REMIC); that any mortgage transferred to a REMIC more than three months after its closing date would not be a qualified transaction, would be taxed at 100 percent and would violate the PSA; and that the note and deed of trust at issue here were transferred to the REMIC more than six years after its closing date. The complaint requests that the assignment of the deed of trust be declared void ab initio and cancelled; that the trial court declare U.S. Bank may not exercise any rights under the deed of trust, including the power of sale; and the court quiet title in Keshtgar and declare U.S. Bank has no right, title or interest in the property.