Morf v. MTDS, Inc. CA1/5

Filed 11/4/14 Morf v. MTDS, Inc. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

GEORGE MORF, Plaintiff and Appellant, A140010 v. MTDS, INC., (Marin County Super. Ct. No. 1200148) Defendant and Respondent.

George Morf challenged the impending foreclosure of his home, alleging inter alia that the trustee that filed the notices of default and trustee’s sale, MTDS, Inc. (MTDS),1 lacked authority to enforce the deed of trust, committed fraud, and engaged in unfair business practices. The court sustained MTDS’s demurrer without leave to amend and awarded MTDS attorney fees under the terms of the deed of trust. Morf appeals only from the attorney fee award, challenging MTDS’s entitlement to fees. We affirm. I. BACKGROUND In 2005 and 2006, Morf obtained a $1.2 million mortgage loan (Mortgage) from Indymac Bank, F.S.B. (Indymac), secured by a deed of trust on his home (Deed of Trust), which named Fidelity National Title as trustee.2 The Deed of Trust was assigned a

1 MTDS, Inc. and Meridian Trust Deed Service apparently are former business names of the entity now known as Meridian Foreclosure Service. 2 In 2007, Morf obtained a $194,000 home equity loan from Indymac, also secured by a deed of trust on his home. In 2010, Indymac’s receiver, the Federal Deposit Insurance Corporation (FDIC), transferred the 2007 deed of trust to OneWest Bank, F.S.B. (OneWest).

1

number of times between 2009 and 2011. An assignment recorded November 6, 2009 (dated Aug. 13, 2009) purported to transfer the Deed of Trust from Indymac to OneWest. Morf alleged that Indymac was no longer in existence at the time of the assignment. OneWest recorded a substitution of trustee on November 20, 2009 (dated Aug. 12, 2009) substituting MTDS as trustee. On June 17, 2011, OneWest recorded a further assignment of the Deed of Trust (dated Nov. 17, 2010) to Deutsche Bank National Trust Company, as Trustee of the IndyMac INDA Mortgage Loan Trust 2007-AR7 (Loan Trust)— apparently a securitized mortgage pool. At some point, the FDIC became receiver for IndyMac Federal Bank F.S.B. (IndyMac Federal), successor in interest to Indymac. On June 16, 2011, the FDIC as receiver for IndyMac Federal, recorded a “corrected” assignment of the Deed of Trust (dated Aug. 12, 2009) to correct the November 6, 2009 assignment from Indymac to OneWest.3 The corrected assignment also purported to transfer beneficial interest in the Deed of Trust to the same Loan Trust. On August 13, 2009, MTDS recorded a notice of default under the Deed of Trust. In 2011, MTDS issued a notice of trustee’s sale on the property. In January 2012, Morf sued MTDS and others, seeking an injunction barring the foreclosure sale of his home, as well as damages and other remedies. Among other claims, he alleged the Deed of Trust was rendered unenforceable by securitization of his mortgage and improper assignments of his loan. As to MTDS, Morf alleged that the November 2009 substitution of trustee was ineffective because (1) OneWest had not been validly assigned the loan at that time; (2) it was not executed by an authorized corporate representative of OneWest as required by Corporation Code section 313; and (3) the substitution of trustee was improperly notarized after the document was signed. Accordingly, Morf argued, MTDS had no authority to execute and record the notices of default or trustee’s sale. Based on these allegations, he stated claims for declaratory and injunctive relief, quiet title, and cancellation of instruments. He also brought a claim for fraud, alleging MTDS