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 CALIFORNIA
COUNTY OF KERN
Khan Rahman, Jason Parson, Abieda Rahman ) Case No.: S-1500-CIV-269439-DRL
)
Plaintiffs, )
) OPPOSITION TO DEMURRER TO
Vs. ) COMPLAINT; MEMORANDUM OF
) POINTS AND AUTHORITIES
Warren Ash, an individual; Bakersfield Realty )
Group, A Corp. Mortgage Electronic Registration)
Inc.; 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
!
INTRODUCTION
The 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 agains
this Defendant, as more fully stated herein below.
Plaintiffs allege that MERS is merely a fictitious or nominal Beneficiary that never len
any money to any Plaintiffs at all times relevant. Plaintiffs further believe that Citimortgage Inc
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OPPOSITION TO DEMURRER TO COMPLAINT
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Quality Home Services Corporation, MERS were never at time relevant assigned the said Dee
of Trust dated February 26, 2007 and therefore lacked standing to directly or indirectly foreclos
against Plaintiffs' real property interest at any time as there were simply no contractual privit
between the Plaintiff and said defendants.
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 0
trust did not authorize Quality Home Loans Corporation to conduct the foreclosure sale or assi
the said note any defendant.
Plaintiffs allege that the Trustee of the said trust deed dated March 26, 2007 did not a
any time file a notice of substitution of Trustee wherein it nominated "MERS" or Quality Hom
Services Corporation, a fictitious entity as a trustee with power of sale of Plaintiffs' property.
In Dimock v. Emerald Properties, LLV (2000) 81 Cal.App.4th 868, the Court held that t
avoid confusion and litigation, there cannot be at any given time more than one person with th
power to conduct a sale under a deed of trust. The beneficiary's agent was not able to effectivel
reinstate the former trustee by simply abandoning the internal foreclosure file it had created upo
the 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 making
substitution. As a practical matter, if the validity of a recorded substitution was subject to th
undisclosed, undocumented, and subjective decisions of agents of the beneficiary, the successo
trustee's ability to provide marketable title would be severely hampered. [See 3 Witkin
Summary of Cal. Law (9th ed. 1987) Security Transactions in Real Property, 8.] (3a, 3b
Deeds of Trust 35--Sale Under Power--Who May Convey-- Following Substitution of Ne
Trustee--Void Conveyance by Former Trustee
II
STATEMENT OF FACTS
Plaintiff purchased property on February 26, 2007. The property was wrongfull
foreclosed 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 calle
his mortgage company, Nation Wide Mortgage Corporation who purported to be an assignee 0
the February 26, 2007 deed of trust between Plaintiffs and Fremont General Credit Corporatio
and requested that the loan be modified. At all times herein mentioned Plaintiff was both residen
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owner of the Property located at 11010 Alexander Falls Avenue, Bakersfield, California (th
Property.") Plaintiffs purchased their Property in February 26, 2007. The mortgage was financed
by Defendants who appear and purport to do business under several and different names as
alleged hereinabove. After several efforts by Plaintiffs, Defendants agreed to modify the loan.
Before the modification agreement was forwarded to Plaintiffs, Defendants foreclosed 0
the property on January 30, 2009. Defendants, and each of them, conducted the foreclosure sal
by 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 origin
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, Qualit
Home Services Corporation claims to be trustee acting on behalf of all the Defendants herein an
conducted the unlawful foreclosure sales aforementioned without any authority from the recor
to do so. Said transfer was not recorded by a notice of assignment of trust deed at any tim
relevant herein. Neither did the originating lender serve a copy of the notice of assignment to th
Plaintiffs.
Defendants and each of them failed to record with the County of Kern with any notice 0
assignment of deed of trust erronously believing that the Defendants are or were exempt fro
doing so as a result of naming a pseudo or nominal beneficiary as in this case MERS, in th
original trust deed.
MERS is a fictitious business entity that sells it name to subprime lenders desirous 0
circumventing state laws governing the purchase and transfers of mortgage trust deeds and notes.
The corporate Defendants herein are member of MERS, a company that appears to be based i
Virginia.
Citibank Inc and/or MERS appointed Quality Loan Services Corporation to commenc
any foreclosure action against the Plaintiff. Quality Home Services Corporation is stranger to th
parties mentioned in the February 26, 2007 deed of trust subject of this action and thus had n
standing 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 len
any money to any Plaintiffs at all times relevant. Plaintiffs further believe that Citimortgage Inc
Quality Home Services Corporation, MERS were never at time relevant assigned the said Dee
of Trust 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 privit
between the Plaintiff and said defendants.
III
A DEMURRER ADMITS THE TRUTH OF ALL
MATERIAL FACTS PROPERLY PLEADED
A 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 any
ground for objection to a complaint ... (1) appears on the face thereof ..." In interpreting this
provision, the courts have held from time immemorial that a demurrer to a complaint will be
overruled when the defect upon which the demurrer is based is not evident on the face of the
pleading. Kamm v. Bank of Cal. (1887) 15 P. 765. Other courts are in accord that a demurrer
tests the pleadings alone and not evidence or other extrinsic matters; and thus lies only where
defects 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 of
action, not whether they are true. Thus, no matter how unlikely or improbable, plaintiff's
allegations 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 in
ordinary and concise language." (Code ofCivil Procedure 425.10.)
In Ruther, California Practice Guide ("C P G"), Civil Procedure Before Trial, the
following 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 which
he 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 become
increasingly liberal in their attitude toward pleading - in some cases approximating the notice
pleading 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 the
defondant ofthe basis upon which the plaintiff is seeking relief . . ')
There is no need to require specificity in the pleadings 'because modem discovery
procedures 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 DEMURRER TO 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 0
the issues to be met, a demurrer to the complaint on the ground of uncertainty should b
overruled. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal. App.3d 135.
It is axiomatic that demurrers founded on uncertainty under Code of Civil Procedur
section 430.1O(t) should be used sparingly and that such demurrers are disfavored when the
are not dispositive of one or more causes of action [Los Angeles Co. Super. Ct. Rules, Rul
9.l8(c)].
In Lord v. Garland (1946) 27 Cal.2d 840, 853 an action against the director and registr
of the state Department of Motor Vehicles for declaratory and injunctive relief. The complain
set forth three causes of action. The defendants demurred to the whole complaint both generall
and specially on several grounds, including the ground that the second cause of action w
ambiguous, unintelligible, and uncertain. The trial court, without indicating the basis of it
ruling, sustained the demurrer without leave to amend and plaintiff appealed from th
subsequent judgment of dismissal.
The Supreme Court reversed the judgment with directions to overrule the demurrer. Th
Court stated that with respect to the demurrer for uncertainty, the allegations of the complain
were sufficiently clear to apprise the defendants of the issues that they were to meet, and th
special 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 fo
damages resulting from plaintiffs use of an alleged defective product. Defendant manufacture
demurred to the fourth amended complaint on various grounds, including the objection that th
complaint was uncertain due to the plaintiffs failure to label the causes of action, as required b
former Los Angeles Co. Super. Ct., Law Depts. Pol. Man., Rule I03(d) [now see Los Angele
Co. Super. Ct. Rules, Rule 9.3 (providing for motion to strike cause of action with leave t
amend)]. The trial court sustained the defendant's demurrer without leave to amend and th
plaintiff appealed.
The court of appeal reversed the judgment, and ordered the trial court to enter an orde
overruling the demurrer and allowing defendant a reasonable time to answer. The court state
that when the complaint contains substantive factual allegations sufficiently apprising th
defendant 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, "bu
what it is that fixes its character." The court observed that although inconvenient, annoying, an
inconsiderate, the lack of labels for the plaintiffs causes of action did not substantially impair th
defendant's ability to understand the complaint, and the demurrer sustained on the ground 0
uncertainty without leave to amend should have been overruled.
The facts alleged in the amended complaint are sufficiently clear to apprise the demurrin
party that this action is about wrongful foreclosure and that Plaintiff was not given proper notic
required by law before the foreclosure sale. Defendants lack standing to foreclose and th
purported 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 to
underlying unlawful detainer proceedings against him, a homeowner filed an action against the
beneficiary of his deed of trust, the former and new trustees, and others, alleging causes of
action for declaratory and injunctive relief, quiet title, and damages. During the course of
discovery, plaintiff became aware that the new trustee had been substituted for the former
trustee, and he asserted that in light of the substitution the foreclosure sale of the property by
the former trustee to a new buyer was void. The parties filed cross-motions for summary
judgment, and the trial court granted defendants' motions and denied plaintiffs. Thereafter the
trial court entered judgment in favor of defendants.
The Court of Appeal reversed the summary judgments entered in favor of defendants and
instructed the trial court to enter judgment quieting title in favor of plaintiff, subject to such
encumbrances as existed at the time of the foreclosure, and to conduct additional proceedings
as necessary. The court held that since the beneficiary of the deed of trust recorded the
document that substituted the new trustee for the former trustee, and the substitution of the new
trustee was never subject to any further recorded substitution by the beneficiary, the new trustee
had 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 the
exclusive 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 clothed
with the same power as if the new trustee had been originally named. The court further held
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that since the new trustee had sole power to convey the property, the fonner trustee's
conveyance of the property to the new buyer after the foreclosure sale was void, and not merely
voidable.
Here, Plaintiffs allege that the purported foreclosure sale of his residence in January 200
is void as a matter of law; as Fremont General Credit Corporation the Trustee in the subject dee
of trust did not authorize Quality Home Loans Corporation to conduct the foreclosure sale 0
assign the said note any defendant.
Plaintiffs allege that the trust deed herein was not properly transferred from the origin
document designated as Exhibit "B" to the Request to Take Judicial Notice. Thereafter, Qualit
Plaintiffs.
assignment of deed of trust erroneously believing that the Defendants are or were exempt fro
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, Quali
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relevant herein. Neither did the originating lender serve a copy ofthe notice of assignment to th
Plaintiffs.
Further, the purported conveyance of beneficial interest by MERS to any other part
which 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 t
convey to anyone.
B. NO TENDER IS REQUIRED BECAUSE DEFENDANTS HAVE NO LEGAL
STANDING 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 of payment 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.4
th
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 Defendan
has an adverse claim to the property in question. Plaintiff has sufficiently done so in he
Complaint. On a demurer all factual allegations must be accepted as true. Plaintiff s allegatio
that "Defendants" claim an adverse interest in the property in question is sufficient to survive th
demurer.
Plaintiff respectfully requests leave to amend to file a proper verification to th
complaint.
VIII
THE WRONGFUL FORECLOSURE AND NEGLIGENCE CAUSES OF ACTION ARE
NOT TIME BARRED AND CONTAIN ENOUGH FACTUAL ALLEGATIONS
Plaintiffs allege that the trust deed herein was not properly transferred from the origina
document designated as Exhibit "B" to the Request to Take Judicial Notice. Thereafter, Quali
Plaintiffs.
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NEGLIGENCE
Plaintiff 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 Defendants
including that Defendants breached their duty to Plaintiff by, among other things, preparing an
filing 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 tha
the demurrer be overruled.
Dated: May 2, 2011
BY__~ ~ ~ ___________________
Le euben Uku, Esq.
ttorney for Plaintiffs
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PROOF OF SERVICE
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
I am employed in the County of Los Angeles, State of California. I am over the age
of eighteen (18) and not a party to the within action. My business address is 3540 Wilshire
Blvd. 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 TO
DEMURRER
MCARTHY & HOLTHUS llP
JAMES HESTER, ESQUIRE
1770 4
TH
AVENUE
SAN DIEGO, CA 92101
I am readily familiar with finn's practice of collection and processing corresponden1
for mailing. Under the practice the envelope would be deposited with U.S. Postal Service
on that same day with postage thereon fully prepaid at Los Angeles, California in the
ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter dates is more than one da
after date of deposit for mailing.
I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct.
Dated: 5/2/2011
PROOF OF SERVICE

Khan Rahman Opposition To Demurer

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