Bank of New York Mellon v. Superior Court CA2/4

Filed 10/9/15 Bank of New York Mellon v. Superior Court CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

BANK OF NEW YORK MELLON, as B263701 Trustee, etc. et al., (Los Angeles County Petitioners, Super. Ct. No. BC522808)

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

JONATHAN LEDESMA,

Real Party in Interest.

ORIGINAL PROCEEDINGS in mandate. Joseph R. Kalin, Judge. Petition granted. Reed Smith, Zareh A. Jaltorossian, David C. Powell, Molly T. Zapala, and Jamie D. Wells for Petitioners. No appearance for Respondent. Law Offices of Joseph De Clue and Joseph De Clue for Real Party in Interest. ______________________________

Petitioners Bank of New York Mellon (BNYM) as trustee for the CWALT, Inc. Alternative Loan Trust OA2 Mortgage Pass Through Certificated, Series 2007-OA2 (CWALT Trust) and ReconTrust Company, N.A. (ReconTrust) seek the reversal of an order denying their motion for summary judgment. They argue that real party in interest Jonathan Ledesma lacks standing to bring a pre-foreclosure action challenging the alleged irregularities in the securitization of his home loan. We agree and grant the petition.

FACTUAL AND PROCEDURAL SUMMARY In 2006, Ledesma obtained a loan secured by a deed of trust on real property located in West Hollywood. The deed of trust identifies Countrywide Bank, N.A. (Countrywide) as lender, ReconTrust as trustee, and Mortgage Electronic Registration Systems, Inc. (MERS) as beneficiary. Ledesma defaulted on the loan in 2008. In September 2009, ReconTrust recorded a notice of default. In November 2009, MERS recorded an assignment of the deed of trust to BNYM as trustee for the CWALT Trust. The assignment was dated September 14, 2009. A further corrective assignment was recorded in 2013. ReconTrust recorded notices of trustee’s sale in 2010, 2011, and 2013, but the parties represent that no foreclosure sale has taken place. In September 2013, Ledesma filed a complaint for declaratory relief, wrongful foreclosure, quiet title and cancelation of instruments. He alleged that the transfer of the loan to BNYM as trustee for the CWALT Trust was subject to a pooling and servicing agreement, according to which the cutoff date for placing loans in the securitized trust was January 1, 2007 and the trust’s closing date was February 15, 2007. Because the recorded assignments were dated after those dates, Ledesma argued they are void under governing New York law. In January 2015, petitioners moved for summary judgment. They argued that Ledesma lacked standing to challenge the securitization of his loan, and submitted a declaration by Justin Bradley, a representative of BNYM’s attorney in fact, stating that the loan had been assigned to BNYM on or before February 14, 2007. The trial court