Khan Rahman Opposition to Demurer

8/2/2019 Khan Rahman Opposition to Demurer

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Levi Reuben Uku, SBN 196406 LAW OFFICES OF LEVI REUBEN UKU 3540 Wilshire Blvd., Suite 626 Los Angeles, CA 90010 Telephone:(213) 385-0193 Telefax: (213) 385-0576 Attorneys for Plaintiffs: Kahn Rahman, Jason Parson, Abieda Rahman

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF KERN

Khan Rahman, Jason Parson, Abieda Rahman ) Case No.: S-1500-CIV-269439-DRL)Plaintiffs, )) OPPOSITION TO DEMURRER TOVs. ) COMPLAINT; MEMORANDUM OF) POINTS AND AUTHORITIESWarren Ash, an individual; Bakersfield Realty )Group, A Corp. Mortgage Electronic Registration) S y s t ~ m s , Inc.; C i ~ i m o r t g a . g e ~ c . , ; Quality Home DATE: May 16,2011 ServIce CorporatIOn; NatIonWIde Mortgage ) TIME: 8:30 A.M. Company; Freemont General credit Corporation; ) DEPT: 7 Nation Star Mortgage LLC and DOES 1 through ) 20 inclusive, , ) Judge: Honorable David R. Lampe)

)Defendants.))

MEMORANDUM OF POINTS AND AUTHORITIES!

INTRODUCTIONThe demurrer filed by Defendants should be overruled because MERS lacked standing t

foreclose in the first place. In addition, the Complaint is clear as the claims by Plaintiffs againsthis Defendant, as more fully stated herein below.

Plaintiffs allege that MERS is merely a fictitious or nominal Beneficiary that never lenany money to any Plaintiffs at all times relevant. Plaintiffs further believe that Citimortgage Inc

1 OPPOSITION TO DEMURRER TO COMPLAINT
http:///reader/full/Ci~imortga.gehttp:///reader/full/Ci~imortga.ge


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Quality Home Services Corporation, MERS were never at time relevant assigned the said DeeofTrust dated February 26, 2007 and therefore lacked standing to directly or indirectly foreclosagainst Plaintiffs' real property interest at any time as there were simply no contractual privitbetween the Plaintiff and said defendants.

Plaintiffs allege that the purported foreclosure sale of his residence in January 2009 ivoid as a matter of law; as Fremont General Credit Corporation the Trustee in the subject deed 0trust did not authorize Quality Home Loans Corporation to conduct the foreclosure sale or assithe said note any defendant.

Plaintiffs allege that the Trustee of the said trust deed dated March 26, 2007 did not aany time file a notice of substitution ofTrustee wherein it nominated "MERS" or Quality HomServices Corporation, a fictitious entity as a trustee with power of sale ofPlaintiffs' property.

In Dimock v. Emerald Properties, LLV (2000) 81 Cal.App.4th 868, the Court held that tavoid confusion and litigation, there cannot be at any given time more than one person with thpower to conduct a sale under a deed of trust. The beneficiary's agent was not able to effectivelreinstate the former trustee by simply abandoning the internal foreclosure file it had created upothe substitution. Civil Code 2934a, permits a substitution only by way of a recorded document,and the terms of the deed of trust itself did not provide any alternative means of makingsubstitution. As a practical matter, if the validity of a recorded substitution was subject to thundisclosed, undocumented, and subjective decisions of agents of the beneficiary, the successotrustee's ability to provide marketable title would be severely hampered. [See 3 WitkinSummary of Cal. Law (9th ed. 1987) Security Transactions in Real Property, 8.] (3a, 3bDeeds of Trust 35--Sale Under Power--Who May Convey-- Following Substitution of NeTrustee--Void Conveyance by Former Trustee

I ISTATEMENT OF FACTS

Plaintiff purchased property on February 26, 2007. The property was wrongfullforeclosed on January 30, 2009, by Defendants for alleged failure to pay mortgage.

Plaintiff fell back on payment in or around September 2008 of his mortgage and callehis mortgage company, Nation Wide Mortgage Corporation who purported to be an assignee 0the February 26, 2007 deed of trust between Plaintiffs and Fremont General Credit Corporatioand requested that the loan be modified. At all times herein mentioned Plaintiff was both residen

2OPPOSITION TO DEMURRER TO COMPLAINT


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owner of the Property located at 11010 Alexander Falls Avenue, Bakersfield, California (thProperty.") Plaintiffs purchased their Property in February 26, 2007. The mortgage was financedby Defendants who appear and purport to do business under several and different names asalleged hereinabove. After several efforts by Plaintiffs, Defendants agreed to modify the loan.

Before the modification agreement was forwarded to Plaintiffs, Defendants foreclosed 0the property on January 30, 2009. Defendants, and each of them, conducted the foreclosure salby false pretenses, fraud and other nefarious means in violation of State and Federal laws.

Plaintiffs allege that the trust deed herein was not properly transferred from the originlender to Nationstar Mortgage LLC by MERS. However, no one at MERS executed thdocument designated as Exhibit "B" to the Request to Take Judicial Notice. Thereafter, QualitHome Services Corporation claims to be trustee acting on behalfof all the Defendants herein anconducted the unlawful foreclosure sales aforementioned without any authority from the recorto do so. Said transfer was not recorded by a notice of assignment of trust deed at any timrelevant herein. Neither did the originating lender serve a copy of the notice of assignment to thPlaintiffs.

Defendants and each of them failed to record with the County ofKern with any notice 0assignment of deed of trust erronously believing that the Defendants are or were exempt frodoing so as a result of naming a pseudo or nominal beneficiary as in this case MERS, in thoriginal trust deed.

MERS is a fictitious business entity that sells it name to subprime lenders desirous 0circumventing state laws governing the purchase and transfers ofmortgage trust deeds and notes.The corporate Defendants herein are member of MERS, a company that appears to be based iVirginia.

Citibank Inc and/or MERS appointed Quality Loan Services Corporation to commencany foreclosure action against the Plaintiff. Quality Home Services Corporation is stranger to thparties mentioned in the February 26, 2007 deed of trust subject of this action and thus had nstanding to commence, let alone foreclosed on Plaintiff's real property subject of this action.

Plaintiffs allege that MERS is merely a fictitious or nominal Beneficiary that never lenany money to any Plaintiffs at all times relevant. Plaintiffs further believe that Citimortgage IncQuality Home Services Corporation, MERS were never at time relevant assigned the said DeeofTrust dated February 26,2007 and therefore lacked standing to directly or indirectly foreclos



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against Plaintiffs' real property interest at any time as there were simply no contractual privitbetween the Plaintiff and said defendants.

Plaintiffs allege that the purported foreclosure sale of his residence in January 2009 ivoid as a matter of law; as Fremont General Credit Corporation the Trustee in the subject deed 0trust did not authorize Quality Home Loans Corporation to conduct the foreclosure sale or assithe said note any defendant.

Plaintiffs allege that the Trustee of the said trust deed dated March 26, 2007 did not aany time file a notice of substitution of Trustee wherein it nominated "MERS" or Quality HomServices Corporation, a fictitious entity as a trustee with power of sale of Plaintiffs' property.

III A DEMURRER ADMITS THE TRUTH OF ALL

MATERIAL FACTS PROPERLY PLEADEDA demurrer must be based on the facts alleged within the four corners of the complaint.Code of Civil Procedure section 430.30, subdivision (a), permits a general demurrer "when anyground for objection to a complaint . . . (1) appears on the face thereof . ." In interpreting thisprovision, the courts have held from time immemorial that a demurrer to a complaint will beoverruled when the defect upon which the demurrer is based is not evident on the face of thepleading. Kamm v. Bank of Cal. (1887) 15 P. 765. Other courts are in accord that a demurrertests the pleadings alone and not evidence or other extrinsic matters; and thus lies only wheredefects appear on the face of the pleading. SKF Farms v. Superior Court (Hummingbird Inc.)(AppA Dist. 1984) 200 CaL Rptr. 497.

For the purpose of testing the sufficiency of the cause of action, a demurrer admits the truth of all material facts properly pleaded. Serrano v. Priest (1971) 5 C.3d 584,591. The sole issue raised by a demurrer is whether the facts pleaded state a valid cause of action. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 C.A.3d 593. The test is whether the complaint states any valid claim entitling Plaintiff to relief. Thus Plaintiff may be mistaken as to the nature of the case, or the legal theory, which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against 11 demurrer. Gruenberg v. Aetna Ins. Co. (1973) 9 C3d 566, 572, Ouelimane Co., Inc. v. Steward Title Guar. Co. (1998) 19 C4th 26, 28.



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The sole issue raised by demurrer is whether the facts pleaded state a valid cause ofaction, not whether they are true. Thus, no matter how unlikely or improbable, plaintiff'sallegations must be accepted as true for the purpose of ruling on the demurrer. Del E.Webb Corp. v. Structural Materials Co. (1981) 123 CaL App.3d 593, 604.

IV IN CALIFORNIA, IT IS REQUIRED ONLY THAT THE COMPLAINT ALLEGES SUFFICIENT FACTS TO APPRISE THE DEFENDANT OF

THE NATURE AND EXTENT OF THE CLAIMS BEING MADE AGAINST THE DEFENDANT

The complaint must contain "a statement of the facts constituting the cause of action inordinary and concise language." (Code ofCivil Procedure 425.10.)

In Ruther, California Practice Guide ("C P G"), Civil Procedure Before Trial, thefollowing authorities are provided:'A complaint must allege the ultimate facts necessary to the statement of an actionable

claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by whichhe hopes to prove such ultimate facts.' (Careau & Co. v. Security Pac. Business Credit Inc.(1990) 222 CA3d 1371, 1390.)

FAIR NOTICE AS TEST: The distinction between 'ultimate facts' and 'evidentiary'matters and 'legal conclusions' is of diminishing importance. Our courts have becomeincreasingly liberal in their attitude toward pleading - in some cases approximating the noticepleading standards of federal courts. (Perkins v. Sup. Ct. (General Tel. Directory Co.)(1981)117 CA3d 1, 6 - 'The distinction is not at all clear and involves at most a matter ofdegree . . .What is important is that the complaint as a whole contain sufficient facts to apprise thedefondant ofthe basis upon which the plaintiff s seeking rel ief . . ')

There is no need to require specificity in the pleadings 'because modem discoveryprocedures necessarily affect the amount of detail that should be required in a pleading.'(Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 CA4th 592, 608)

V THE DEMURRERTO THE COMPLAINT SHOULD BE OVERRULED BECAUSE THE ALLEGATIONS OF THE COMPLAINT ARE SUFFICIENTLY CLEAR TO APPRISE

DEFENDANT OF THE ACTION AGAINST IT



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When the allegations of the complaint are sufficiently clear to apprise the defendant 0the issues to be met, a demurrer to the complaint on the ground of uncertainty should boverruled. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal. App.3d 135.

It is axiomatic that demurrers founded on uncertainty under Code of Civil Procedursection 430.1O(t) should be used sparingly and that such demurrers are disfavored when theare not dispositive of one or more causes of action [Los Angeles Co. Super. Ct. Rules, Rul9.l8(c)].

In Lord v. Garland (1946) 27 Cal.2d 840, 853 an action against the director and registrof the state Department of Motor Vehicles for declaratory and injunctive relief. The complainset forth three causes of action. The defendants demurred to the whole complaint both generalland specially on several grounds, including the ground that the second cause of action wambiguous, unintelligible, and uncertain. The trial court, without indicating the basis of itruling, sustained the demurrer without leave to amend and plaintiff appealed from thsubsequent judgment of dismissal.

The Supreme Court reversed the judgment with directions to overrule the demurrer. ThCourt stated that with respect to the demurrer for uncertainty, the allegations of the complainwere sufficiently clear to apprise the defendants of the issues that they were to meet, and thspecial demurrer therefore should have been overruled Lord v. Garland (1946) 27 Cal.2d 840,853.

Williams v. Beechnut Nutrition Corp. (1986) 185 Cal. App.3d 135. involved an action fodamages resulting from plaintiffs use of an alleged defective product. Defendant manufacturedemurred to the fourth amended complaint on various grounds, including the objection that thcomplaint was uncertain due to the plaintiffs failure to label the causes of action, as required bformer Los Angeles Co. Super. Ct., Law Depts. Pol. Man., Rule I03(d) [now see Los AngeleCo. Super. Ct. Rules, Rule 9.3 (providing for motion to strike cause of action with leave tamend)]. The trial court sustained the defendant's demurrer without leave to amend and thplaintiff appealed.

The court of appeal reversed the judgment, and ordered the trial court to enter an ordeoverruling the demurrer and allowing defendant a reasonable time to answer. The court statethat when the complaint contains substantive factual allegations sufficiently apprising thdefendant of the issues it is being asked to meet, a demurrer for uncertainty should be overrule



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or plaintiff be given leave to amend. "It is not what a paper is named," quoted the court, "buwhat it is that fixes its character." The court observed that although inconvenient, annoying, aninconsiderate, the lack of labels for the plaintiffs causes of action did not substantially impair thdefendant's ability to understand the complaint, and the demurrer sustained on the ground 0uncertainty without leave to amend should have been overruled.

The facts alleged in the amended complaint are sufficiently clear to apprise the demurrinparty that this action is about wrongful foreclosure and that Plaintiff was not given proper noticrequired by law before the foreclosure sale. Defendants lack standing to foreclose and thpurported foreclosure was procured by fraud. Accordingly, the demurrer should be overruled.

VI DEFENDANTS LACKED STANDING TO FORECLOSE.

In Dimock v. Emerald Properties, LLV (2000) 81 Cal.App.4th 868, in response tounderlying unlawful detainer proceedings against him, a homeowner filed an action against thebeneficiary of his deed of trust, the former and new trustees, and others, alleging causes ofaction for declaratory and injunctive relief, quiet title, and damages. During the course ofdiscovery, plaintiff became aware that the new trustee had been substituted for the formertrustee, and he asserted that in light of the substitution the foreclosure sale of the property bythe former trustee to a new buyer was void. The parties filed cross-motions for summaryjudgment, and the trial court granted defendants' motions and denied plaintiffs. Thereafter thetrial court entered judgment in favor ofdefendants.

The Court ofAppeal reversed the summary judgments entered in favor of defendants andinstructed the trial court to enter judgment quieting title in favor of plaintiff, subject to suchencumbrances as existed at the time of the foreclosure, and to conduct additional proceedingsas necessary. The court held that since the beneficiary of the deed of trust recorded thedocument that substituted the new trustee for the former trustee, and the substitution of the newtrustee was never subject to any further recorded substitution by the beneficiary, the new trusteehad sole power to convey the property_ Under the unambiguous terms of Civil Code 2934a,subd. (a)(4), the recording of the substitution of trustee transferred to the new trustee theexclusive power to conduct a trustee's sale. Upon the appointment being made under the power,the new trustee became vested, ipso facto, with the title to the trust premises and was clothedwith the same power as if the new trustee had been originally named. The court further held

7OPPOSITION TO DEMURRER TO COMPLAINT


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that since the new trustee had sole power to convey the property, the fonner trustee'sconveyance of the property to the new buyer after the foreclosure sale was void, and not merelyvoidable.

Here, Plaintiffs allege that the purported foreclosure sale of his residence in January 200is void as a matter of law; as Fremont General Credit Corporation the Trustee in the subject deeof trust did not authorize Quality Home Loans Corporation to conduct the foreclosure sale 0assign the said note any defendant.


Plaintiffs allege that the trust deed herein was not properly transferred from the originlender to Nationstar Mortgage LLC by MERS. However, no one at MERS executed thdocument designated as Exhibit "B" to the Request to Take Judicial Notice. Thereafter, QualitHome Services Corporation claims to be trustee acting on behalf of all the Defendants herein anconducted the unlawful foreclosure sales aforementioned without any authority from the recorto do so. Said transfer was not recorded by a notice of assignment of trust deed at any timrelevant herein. Neither did the originating lender serve a copy of the notice of assignment to thPlaintiffs.

Defendants and each of them failed to record with the County of Kern with any notice 0assignment of deed of trust erroneously believing that the Defendants are or were exempt frodoing so as a result of naming a pseudo or nominal beneficiary as in this case MERS, in thoriginal trust deed.

V MERS HAS NO STANDING TO FORECLOSE EITHER

MERS claims to be a separate company that acts as the nominee for Lender and Lender'successors and assigns. MERS also claims to be the beneficiary under the Security Instrument.

Plaintiffs allege that the trust deed herein was not properly transferred from the origina. lender to Nationstar Mortgage LLC by MERS. However, no one at MERS executed th

document designated as Exhibit "B" to the Request to Take Judicial Notice. Thereafter, QualiHome Services Corporation claims to be trustee acting on behalf of all the Defendants herein anconducted the unlawful foreclosure sales aforementioned without any authority from the recor



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to do so. Said transfer was not recorded by a notice of assignment of trust deed at any timrelevant herein. Neither did the originating lender serve a copy of the notice of assignment to thPlaintiffs.


Further, the purported conveyance of beneficial interest by MERS to any other partwhich was not duly executed constitutes fraudulent conveyance and therefore VOID on its face.Consequentially, neither the Lender nor MERS hold a valid beneficial interest under the DOT tconvey to anyone.B. NO TENDER IS REQUIRED BECAUSE DEFENDANTS HAVE NO LEGALSTANDING TO FORECLOSE

Defendants argue that all of plaintiff claims are barred by plaintiffs failure to allege hi ability to tender the loan proceeds. Abdallah v. United Savings Bank, 43 Cal. App. 4th 1101, 51 Cal. Rptr. 2d 286 (1996), requires a valid tender ofpayment to bring any claim that arises from foreclosure sale. Abdallah however, merely requires an allegation to tender for "any cause 0 action for irregularity in the [foreclosure] sale procedure." Id at 1109. Here, plaintiff need no allege tender, because the foreclosure sale is void as a matter of law because the Trustee wh conducted the foreclosure sale lacked authority to do so. Dimock v. Emerald Properties, LL (2000) 81 Cal.App.4th 868

VII THE QUIET TITLE CAUSE OF ACTION IS WELL PLEAD

A quiet title cause of action is brought, as authorized by statute, for the purpose 0 determining any adverse claim that may be asserted therein by a defendant to the land i controversy. Lechuza Villas West v. California Coastal Com'n (1997) 60 Cal. App.4th 218, 242 "The object of the action is to finally settle and determine, as between the parties, all conflictin claims to the property in controversy, and to decree each such interest or estate therein as he rna be entitled to." Id.

9 OPPOSITION TO DEMURRER TO COMPLAlNT


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In order to state a cause of action for quiet title, Plaintiffs must plead that this Defendanhas an adverse claim to the property in question. Plaintiff has sufficiently done so in heComplaint. On a demurer all factual allegations must be accepted as true. Plaintiff s allegatiothat "Defendants" claim an adverse interest in the property in question is sufficient to survive thdemurer.

Plaintiff respectfully requests leave to amend to file a proper verification to thcomplaint.

VIII THE WRONGFUL FORECLOSURE AND NEGLIGENCE CAUSES OF ACTION ARE

NOT TIME BARRED AND CONTAIN ENOUGH FACTUAL ALLEGATIONS Plaintiffs allege that the purported foreclosure sale of his residence in January 2009 i

void as a matter of law; as Fremont General Credit Corporation the Trustee in the subject deed 0trust did not authorize Quality Home Loans Corporation to conduct the foreclosure sale or assithe said note any defendant.


Plaintiffs allege that the trust deed herein was not properly transferred from the originalender to Nationstar Mortgage LLC by MERS. However, no one at MERS executed thdocument designated as Exhibit "B" to the Request to Take Judicial Notice. Thereafter, QualiHome Services Corporation claims to be trustee acting on behalf of all the Defendants herein anconducted the unlawful foreclosure sales aforementioned without any authority from the recorto do so. Said transfer was not recorded by a notice of assignment of trust deed at any timrelevant herein. Neither did the originating lender serve a copy of the notice of assignment to thPlaintiffs.




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NEGLIGENCEPlaintiff alleges negligence against all defendants. Under California law, the elements 0

a claim for negligence are "(a) a legal duty to use due care; (b) a breach of such legal duty; an(c) the breach as the proximate or legal cause of the resulting injury." Ladd v. County of Sa Mateo, 12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309,911 P.2d 496 (1996) (internal citations [*25] and quotations omitted); see also Cal Civ Code 1714(a).

The Complaint clearly spell out the allegations of negligence against Defendantsincluding that Defendants breached their duty to Plaintiff by, among other things, preparing anfiling false documents, and foreclosing on the properly without proper authority to do so.Accordingly, the demurrer should be overruled.

IX PLAINTIFFS REQUEST LEAVE TO AMEND

For the foregoing reason and based on applicable laws, Plaintiffs respectfully request thathe demurrer be overruled.

Dated: May 2, 2011

BY__ ~ ~ ___________________Le euben Uku, Esq.ttorney for Plaintiffs



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PROOF OF SERVICESTATE OF CALIFORNIA )COUNTY OF LOS ANGELES )

I am employed in the County of Los Angeles, State of California. I am over the ageof eighteen (18) and not a party to the within action. My business address is 3540 WilshireBlvd. Suite 626, L.A, CA 90010. Via Facsimile to (714) 481 9151 AND U. S. MAIL.

On 5/2/2011 I served the foregoing document described as: oPPOSrnON TODEMURRERMCARTHY & HOLTHUS l lPJAMES HESTER, ESQUIRE1770 4TH AVENUESAN DIEGO, CA 92101

I am readily familiar with finn's practice of collection and processing corresponden1for mailing. Under the practice the envelope would be deposited with U.S. Postal Serviceon that same day with postage thereon fully prepaid at Los Angeles, California in theordinary course of business. I am aware that on motion of the party served, service ispresumed invalid if postal cancellation date or postage meter dates is more than one daafter date of deposit for mailing.

I declare under penalty of perjury, under the laws of the State of California, that theforegoing is true and correct.Dated: 5/2/2011

Documents

Khan Rahman Opposition to Demurer