Vitale v. Central Mortgage Co. CA1/3

Filed 9/30/14 Vitale v. Central Mortgage Co. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

DEBORAH CAMILLE VITALE, Plaintiff and Appellant, A138734 v. CENTRAL MORTGAGE COMPANY et (Marin County al., Super. Ct. No. CIV1000331) Defendants and Respondents.

Deborah Vitale appeals from a summary judgment in favor of Central Mortgage Company (Central) and Mortgage Electronic Registration Systems, Inc. (MERS), beneficiaries of a deed of trust secured by and foreclosed against her Novato property. The trial court correctly found there were no triable issues of material fact, and we affirm. BACKGROUND In December 2006, Vitale obtained a loan for $858,650 from Residential Mortgage Capital (Residential) secured by a deed of trust on her property. The deed of trust named MERS as Residential’s nominee beneficiary and assigned MERS the right to exercise all interests granted by Vitale under the deed of trust in favor of the lender and the lenders successors and assignees. The note was subsequently transferred into a securitization trust pursuant to a pooling and service agreement. Vitale defaulted on her mortgage payments, and on July 9, 2009 Old Republic Default Management Services (Old Republic), as agent for the beneficiary, recorded a

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notice of default and election to sell under the deed of trust. An assignment of deed of trust assigning all beneficial interest from MERS to Central Mortgage Company was executed on July 21. That same day, Central executed a substitution of trustee naming Old Republic as trustee. A notice of trustee’s sale was recorded on January 11, 2010. Vitale sued Central, MERS, and Old Republic. Following rulings on two demurrers and a motion for judgment on the pleadings, Central and MERS (defendants) moved for summary judgment on Vitale’s remaining causes of action for a judicial declaration that defendants lacked standing to foreclose “due to fraud, deceit, forgery, failed assignments and other fatal flaws in the chain of title” resulting from the securitization of the note, breach of the implied covenant of good faith and fair dealing, quiet title, injunctive relief, and unlawful business practices. The trial court granted summary judgment. It explained: “Plaintiff fails to raise a triable issue of material fact under the first cause of action for declaratory relief, which basically amounts to an attack [on] the ‘Securitization Process’ and the MERS system. [Citation.] A key component of plaintiff’s claim that defendants lack standing to foreclose is that MERS cannot be a true ‘Beneficiary’ because MERS lacks any beneficial interest in the Note, which was separated from the Deed of Trust in the securitization process, and that any actions taken under the Deed of Trust (without the note) are void. As defendants correctly point out in their motion, California’s statutory non-judicial foreclosure scheme does not require that the foreclosing party have a beneficial interest in or physical possession of the note. (Debrunner v. Deutsche Bank Nat. Trust Co. (2012) 204 Cal.App.4th 433, 440–441; Lane v. Vitek Real Estate Indus. Group (E.D.Cal 2010) 713 F.Supp.2d 1092, 1099 [California ‘does not require a beneficial interest in both the Note and the Deed of Trust to commence a non-judicial foreclosure sale.’] Civil Code § 2924(a)(1) permits a notice of default to be filed by the ‘trustee, mortgagee, or beneficiary, or any of their authorized agents.’ ” The court rejected Vitale’s contention that her cause of action for declaratory relief was based on a “ ‘fatal break in the chain of title where the true owner of the note is now unknown.’ ” Her contention was purportedly supported by the declarations of a mortgage