Keshtgar v. U.S. Bank CA2/6

Filed 8/8/16 Keshtgar v. U.S. Bank CA2/6 Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

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

v. OPINION ON REMAND FROM SUPREME COURT 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 brought an action to prevent the bank from initiating foreclosure proceedings. He claimed that the bank had no authority to initiate foreclosure because an assignment to the bank was either void or did not take place. The trial court sustained the bank's demurrer without leave to amend. We affirmed the ensuing judgment. (Keshtgar v. U.S. Bank, N.A. (2014) 226 Cal.App.4th 1201.) Our Supreme Court granted review (Oct. 1, 2014, S220012). Our Supreme Court thereafter remanded the matter to us with instructions to vacate our decision and reconsider the matter in light of Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova). We have reconsidered the matter in light of Yvanova and have determined Yvanova has no bearing on this case.

Yvanova applies only to actions alleging wrongful foreclosure, not actions to preempt foreclosure. We again affirm. FACTS In May 2005, plaintiff Saeed 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 N.A., 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 that 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 Mortgage 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 that U.S. Bank may not exercise