Kamal v. Deutsche Bank National Trust Co. CA2/6

Filed 10/1/20 Kamal v. Deutsche Bank National Trust Co. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MAJID KAMAL et al., 2d Civil No. B301673 (Super. Ct. No. 56-2019- Plaintiffs and Appellants, 00528212-CU-OR-VTA) (Ventura County) v. DEUTSCHE BANK NATIONAL TRUST COMPANY etc. et al., Defendants and Respondents,

Here, a verified complaint for wrongful foreclosure incorporates the deed of trust that authorized the loan assignment and nonjudicial foreclosure that appellants complain about. Majid Kamal and Sheri Kamal appeal from a dismissal entered after the trial court sustained, without leave to amend, a demurrer to their First Amended Complaint for wrongful foreclosure and cancellation of instruments. Judgment was entered for defendants, Deutsche Bank National Trust Company as trustee for IndyMac INDX Mortgage Loan Trust 2006-AR5, Mortgage Pass-Through Certificates Series 2006-AR5, and Ocwen Loan Service, LLC. (herein Deutsche Bank). We affirm.

Facts and Procedural History Appellants filed this action on May 9, 2019 after their home was sold at a nonjudicial foreclosure based on their $600,000+ default on an IndyMac Bank F.S.B. (IndyMac) loan secured by a deed of trust. Appellants originally purchased the property in 2006 with a $520,000 IndyMac loan secured by a deed of trust. The deed of trust stated that Mortgage Electronic Registration Systems, Inc. (MERS) was the loan beneficiary and “is acting solely as a nominee for Lender and Lender’s successors and assigns.” It provided that MERS could exercise any right belonging to the original lender (IndyMac) and its assigns and successors, and that MERS could sell the promissory note or a partial interest in the note without notice to appellants. In 2009, after IndyMac failed and was placed in a Federal Deposit Insurance Corporation (FDIC) receivership, MERS assigned the Deed of Trust to OneWest Bank, FSB (OneWest).1 On June 25, 2012, OneWest assigned the deed of

1 A detailed description of the FDIC takeover of IndyMac and sale of its assets to OneWest Bank is described in Deutsche Bank Nat. Trust Co. v. F.D.I.C. (9th Cir. 2014) 744 F.3d 1124, 1127: “On July 11, 2008, the Office of Thrift Supervision closed IndyMac, appointed the FDIC as receiver, created a new savings bank, IndyMac Federal, and appointed the FDIC as conservator (FDIC–C) of IndyMac Federal. Another federal savings bank, OneWest Bank, was formed as a thrift holding company to purchase IndyMac Federal’s assets and liabilities. As receiver and conservator, the FDIC ‘succeeded to all rights, titles, powers, and privileges of IndyMac Federal, including those arising under the Governing Agreements or otherwise related to the Trusts.’ As IndyMac Federal’s conservator, the FDIC administered the Trusts and serviced the mortgages based on servicing rights established by the Governing Agreements. In that capacity, the