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Cortez v. Tri Star Realty and Investments

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION


July 16, 2009

MARGARITA CORTEZ, PLAINTIFF,
v.
TRI STAR REALTY AND INVESTMENTS, INC., A CALIFORNIA CORPORATION; JAVIER GUERRERO; ZACHERY YATES; JORGE ENRIQUEZ; JOHN ROBLEDO; MARIA VERONICA ROBLEDO; LEOPOLDO GUERRERO; ANTONIA GUERRERO; ARMANDO A. ZUNO, JR.; AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER SUCH PERSON, ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE, OR ANY CLOUD ON PLAINTIFF'S TITLE THERETO; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., A DELAWARE CORPORATION; NDEX WEST LLC., A DELAWARE LIMITED LIABILITY COMPANY; WELLS FARGO BANK N.A. DOING BUSINESS AS AMERICAS SERVICING COMPANY; WASHINGTON MUTUAL BANK, F.A.; HOMEFLELD FINANCIAL INC., A CALIFORNIA CORPORATION, ITS SUCCESSORS AND ASSIGNS; THE MORTGAGE STORE FINANCIAL INC., A CALIFORNIA CORPORATION, ITS SUCCESSORS AND ASSIGNS; QUALITY LOAN SERVICE CORPORATION, A CALIFORNIA CORPORATION; MERITAGE MORTGAGE CORPORATION, AN OREGON CORPORATION, ITS SUCCESSORS AND ASSIGNS; HOMEWIDE LENDING CORP, A CALIFORNIA CORPORATION, ITS SUCCESSORS AND ASSIGNS; SELECT PORTFOLIO SERVICING, INC. A UTAH CORPORATION; INDYMAC BANK, FSB; EVERHOME MORTGAGE COMPANY A FLORIDA CORPORATION; EMC MORTGAGE COMPANY, A DELAWARE CORPORATION; OCWEN LOAN SERVICING LLC, A DELAWARE LIMITED LIABILITY COMPANY; CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. ON BEHALF OF THE CREDIT SUISSE ADJUSTABLE RATE MORTGAGE TRUST 2006-3, A DELAWARE CORPORATION; MERCHANTS BONDING COMPANY, AN IOWA CORPORATION; INTERNATIONAL FIDELITY INSURANCE COMPANY, A NEW JERSEY CORPORATION; US BANK N.A. (DOE 1); BANK OF AMERICA NA, SUCCESSOR TO LA SALLE BANK NA, ASSIGNEE OF EMC MORTGAGE CORPORATION (DOE 2); FEDERAL HOME LOAN MORTGAGE ASSOCIATION, ASSIGNEE OF INTEREST FROM EMC MORTGAGE CORPORATION (DOE 3); HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF THE NOMURA ASSET ACCEPTANCE CORPORATION ALTERNATIVE LOAN TRUST SERIES 2006-S5 (DOE 4); AND DOES 5-100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: The Hon. Manuel L. Real

STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE PARTIAL SUMMARY JUDGMENT OF DEFENDANT FEDERAL DEPOSIT INSURANCE CORPORATION AS CONSERVATOR FOR INDYMAC FEDERAL BANK, FSB [Notice of Motion and Motion for Summary Judgment, Memorandum of Points and Authorities, Evidence and Declaration, Request for Judicial Notice and Proposed Order filed concurrently herewith] Date: July 6, 2009 Time: 10:00 a.m. Crtrm.: 8 Trial: July 28, 2009

Defendant, Federal Deposit Insurance Corporation, as Conservator for IndyMac Federal Bank, FSB, submits the following Statement of Uncontroverted Facts and Conclusions of Law in support of its Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 56-1 of the Local Civil Rules against plaintiff MARGARITA CORTEZ:

UNCONTROVERTED FACTS

1. In 2004, Plaintiff Margarita Cortez ("Plaintiff") used the services of defendant Tri-Star Realty & Investment ("Tri-Star") and Javier Guerrero to purchase real estate and obtain a mortgage loan.

1. Plaintiff's Verified First Amended Complaint ¶ 32; Declaration of Margarita Cortez ¶¶ 3-5. Request for Judicial Notice Nos. 3, 4 and 6; Exhibits 5 and 6 to Motion for Summary Judgment.

2. Plaintiff disclosed her personal information and credit history to Tri-Star and Javier Guerrero in the course of obtaining the loan.

2. Plaintiff's Verified First Amended Complaint ¶ 32; Declaration of Margarita Cortez ¶ 4. Request for Judicial Notice Nos. 3 and 4; Exhibits 5 and 6 to Motion for Summary Judgment.

3. Plaintiff's Verified First Amended Complaint ¶¶ 33-34. Request for Judicial Notice No. 3; Exhibit 5 to Motion for Summary Judgment.

3. Tri-Star and Javier Guerrero then used her name and credit reputation for their own use and benefit by obtaining loans secured by purchase money deeds of trust to acquire the five pieces of real property at issue in this action.

4. Plaintiff was not involved in these transactions, did not sign any of the

4. Plaintiff's Verified First Amended Complaint ¶ 34; Declaration of deeds of trust or loan documents, and did not discover that the five properties were purchased with purchase money loans in her name until after the transactions had taken place.

Margarita Cortez ¶¶ 6 and 23. Request for Judicial Notice Nos. 3 and 4; Exhibits 5 and 6 to Motion for Summary Judgment.

5. Declaration of Margarita Cortez ¶¶ 7 and 8. Request for Judicial Notice No. 4; Exhibit 6 to Motion for Summary Judgment.

5. Javier Guerrero agreed to pay Plaintiff $130,000 after admitting that he had used Plaintiff's identity to purchase one of the properties. Plaintiff received a partial payment of $70,000 from Javier Guerrero.

6. Grant Deed, recorded on June 21, 2006 as Instrument No. 2006-0421638 in the County of San Bernardino Recorder's Office. Request for Judicial Notice No. 2; Exhibit 4 to Motion for Summary Judgment.

6. A Grant Deed was executed by Carlos Paez and Sara Paez, transferring the real property located at 15341 Broken Bow Road, # 1-4, Apple Valley, California ("the Broken Bow Property") to John Robledo and Maria Veronica Robledo, Husband and Wife and Margarita Cortez, an Unmarried Woman, all Joint Tenants and recorded on June 21, 2006 as Instrument No. 2006-0421638 in the County of San Bernardino Recorder's Office.

7. John Robledo and Maria Robledo executed a Deed of Trust in the amount of $496,000 in favor of Homewide

7. Deed of Trust recorded on June 21, 2006, as Instrument No. 2006-0421639 in the County of San Lending, Corp. ("Homewide"), encumbering the Broken Bow Property which was recorded on June 21, 2006, as Instrument No. 2006-0421639.

Bernardino Recorder's Office. Request for Judicial Notice No. 1; Exhibit 2 to Motion for Summary Judgment.

8. The purchase money loan made by Homewide to the Robledos in June 2006 ("the Homewide Loan") was intended to be in a first priority position secured by the Deed of Trust in the amount of $496,000 in favor of Homewide, encumbering the Broken Bow Property which was recorded on June 21, 2006, as Instrument No. 2006-0421639.

8. Declaration of Roger Stotts ¶4.

9. There was no notice of or reference to the claims of Margarita Cortez with regard to the Broken Bow Property in the Homewide Loan file at the time the purchase money loan was made to the Robledos in June 2006.

9. Declaration of Roger Stotts ¶4.

10. The Note dated June 7, 2006 was purchased by IndyMac Bank FSB ("IndyMac") from Homewide on or about October 1, 2006. The Deed of Trust was later assigned of record through Mortgage Electronic

10. Declaration of Roger Stotts ¶5; Request for Judicial Notice No. 1; Exhibits 1 and 2 to Motion for Summary Judgment.

Registration Systems, Inc. ("MERS") to IndyMac pursuant to the Assignment of Deed of Trust recorded on February 7, 2008 as instrument No. 2008-0056712.

11. When IndyMac acquired the Homewide Loan, it believed the Deed of Trust securing the loan was in a first priority position encumbering the Broken Bow Property. IndyMac did not have any actual notice or knowledge of Plaintiff's claims at the time the Homewide Loan and Deed of Trust were acquired.

11. Declaration of Roger Stotts ¶6.

12. Declaration of Roger Stotts ¶7.

12. Following the origination of the Homewide Loan and subsequent assignment to IndyMac, a series of transactions took place by which IndyMac placed the Note and Deed of Trust into a securitized pool, and retained the servicing rights for the subject loan. OneWest received those servicing rights from the FDIC as Receiver for IndyMac Bank on March 19, 2009.

13. Declaration of Roger Stotts ¶7.

13. Pursuant to the servicing agreement, OneWest is the servicer of the loan. Its servicing responsibilities include collection of the debt and management of certain litigation relating to loans it services, including the current lawsuit.

14. Declaration of Roger Stotts ¶8.

14. The Note secured by Deed of Trust is currently held by HSBC Bank USA, National Association, as trustee for the holders of Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR6 Mortgage Pass-Through Certificates pursuant to the Pooling and Servicing agreement, dated as of June 1, 2005 as amended and restated to and including December 1, 2005. Wells Fargo Bank, N.A., is the Master Servicer and OneWest is the subservicer.

15. When IndyMac acquired the Homewide Loan, it believed the Deed of Trust securing the loan was in a first priority position encumbering the Broken Bow Property.

15. Declaration of Roger Stotts ¶ 6.

16. Mortgage Electronic Registration Systems, Inc. ("MERS") was the nominee of Homewide and its successor

16. Request for Judicial Notice No. 1; Exhibit 2 to Motion for Summary Judgment and assigns and does not have a pecuniary interest in the Note and Deed of Trust encumbering the Broken Bow Property.

17. The sum of $445,368.31 from the loan proceeds was used to pay off the prior valid lien.

17. Declaration of Roger Stotts ¶ 9; Exhibit 3 to the Motion for Summary Judgment.

CONCLUSIONS OF LAW

1. The Deed of Trust in the amount of $496,000 in favor of Homewide Mortgage recorded on June 21, 2006 as Instrument No. 2006-0421639 encumbering the Broken Bow Property, was signed by a person who intended to encumber the property. As a result, the Deed of Trust is valid and enforceable.

2. Plaintiff cannot base her cancellation of instruments cause of action on the Identity Theft Statute (Civil Code § 1798.92 through 1798.97) because she is not a trustor on the Deed of Trust, and an identity theft victim may only recover undistributed surplus proceeds that remain after a trustee's sale of the property and the satisfaction of lienholders and creditors. Thus, Plaintiff cannot cancel the Deed of Trust encumbering the Broken Bow Property which was recorded on June 21, 2006, as Instrument No. 2006-0421639 based on a claim of Identity Theft.

3. Plaintiff does not qualify as a "victim of identity theft" as defined in Civil Code 1798.92(d) which requires that the person not "use or possess the credit, goods, services, money, or property obtained by the identity theft" because Plaintiff admitted that she received $70,000 from perpetrator Javier Guerrero.

4. Plaintiff did not acquire any interest in the Broken Bow Property pursuant to the Grant Deed recorded on June 21, 2006 as Instrument No. 2006-0421638 because someone else received title to the Broken Bow Property in Plaintiff's name and encumbered the Broken Bow Property with a loan secured by a first deed of trust.

5. Plaintiff did not acquire any interest in the Broken Bow Property pursuant to the Grant Deed recorded on June 21, 2006 as Instrument No. 2006-0421638 because she did not intend to accept title and did not accept title to the Broken Bow Property.

6. Federal Deposit Insurance Corporation, as Conservator for IndyMac Federal Bank, FSB and any successors-in-interest to the Broken Bow Property are entitled to judgment as a matter of law on Plaintiff's Tenth Cause of Action for Cancellation of Instruments as to the Broken Bow Property.

7. Federal Deposit Insurance Corporation, as Conservator for IndyMac Federal Bank, FSB and any successors-in-interest to the Broken Bow Property are entitled to judgment as a matter of law on Plaintiff's Twelfth Cause of Action for Quiet Title as to the Broken Bow Property.

8. Federal Deposit Insurance Corporation, as Conservator for IndyMac Federal Bank, FSB and any successors-in-interest to the Broken Bow Property are entitled to judgment as a matter of law on Plaintiff's Seventeenth Cause of Action for Temporary and Permanent Injunction Against Foreclosure as to the Broken Bow Property.

9. Federal Deposit Insurance Corporation, as Conservator for IndyMac Federal Bank, FSB and any successors-in-interest to the Broken Bow Property are entitled to judgment as a matter of law on Plaintiff's Eighteenth Cause of Action for Declaratory Relief as to the Broken Bow Property.

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 years and not a party to the within action; my business address is 3602 Inland Empire Blvd., Suite C100, Ontario, CA 91764.

On July ____, 2009, I served the following document(s) described as STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE PARTIAL SUMMARY JUDGMENT OF DEFENDANT FEDERAL DEPOSIT INSURANCE CORPORATION AS CONSERVATOR FOR INDYMAC FEDERAL BANK, FSB on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows:

SEE ATTACHED LIST BY MAIL: I am "readily familiar" with Anderson, McPharlin & Conners' practice for collecting and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service that same day in the ordinary course of business. Such envelope(s) were placed for collection and mailing with postage thereon fully prepaid at Los Angeles, California, on that same day following ordinary business practices.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on July ____, 2009, at Ontario, California.

Cynthia Fitch

SERVICE LIST

Margarita Cortez v. Tri Star Realty and Investments, Inc., et al. 2:08-cv-06737-R-PJW

William F. Swearinger, Esq. WF Swearinger, Inc., PC 6255 Sunset Blvd., Suite 714 Hollywood, CA 90028-7411 Telephone: (323) 463-1111 Facsimile: (323) 463-0219 Attorneys for Plaintiff, Margarita Cortez Attorneys for Defendant, International Fidelity Insurance Company

Carlos E. Sosa, Esq. John Michael Pagan, Esq. Hausman & Sosa LLP 18757 Burbank Boulevard Suite 305 Tarzana, CA 91356-6329 Telephone: (818) 654-9000 Facsimile: (818) 654-9050

John M. Williams, Jr., Esq. Williams Law Group 236 W. Mountain Street Suite 106 Pasadena, CA 91103 Telephone: (626) 795-9009 Facsimile: (626) 795-9003 Attorneys for Defendants, Jorge Enriquez, John Robledo, Maria Veronica Robledo, Leopoldo Guerrero, Antonia Guerrero and Armando A. Zuno, Jr.

Scott I. Richards, Esq. Law Office of Scott I. Richards 313 North Birch Street Santa Ana, CA 92701 Telephone: (714) 550-9800 Facsimile: (714) 550-9119 Attorneys for Defendant/Cross-Complainant, Homewide Lending Corporation Attorneys for Defendant, The Mortgage Store Financial, Inc.

H. Joseph Nourmand, Esq. Law Offices of H. Joseph Nourmand, APC 660 South Figueroa St., 24th Floor Los Angeles, CA 90017 Telephone: (213) 688-2888 Facsimile: (213) 688-2848

Richard S. Busch, Esq. Law Offices of Richard Busch 2660 Townsgate Road, Suite 400 Westlake Village, CA 91361 Telephone: (805) 222-4234 Facsimile: (805) 497-7680 Attorneys for Defendant, Merchants Bonding Company

Kenneth H. Martin, Esq. Snyder Law 4050 Calle Real, Suite 200 Santa Barbara, CA 93110 Telephone: (805) 692-2800 Facsimile: (805) 692-2801 Co-Counsel for Defendant, IndyMac Bank, F.S.B., and Federal Deposit Insurance Corporation, as Receiver for IndyMac Bank, F.S.B. AND Attorneys for Defendants US Bank N.A. and Select Portfolio Servicing, Inc.

Daniel J. Goulding, Esq. McCarthy & Holthus LLP 1770 Fourth Avenue San Diego, CA 92101 Telephone: (619) 685-4800 Facsimile: (619) 685-4810 Attorneys for Qualify Loan Service Corporation

Edward A. Treder Esq. Barrett Daffin Frappier Treder & Weiss, LLP 917 South Village Oaks Drive, Suite 200 Covina, CA 91724 Telephone: (626) 915-5714 Facsimile: (626) 915-0289 Attorneys for Defendant NDEx West, LLC

Robin Prema Wright, Esq. Wright, Finlay & Zak, LLP 4665 MacArthur Court Suite 280 Newport Beach, CA 92660 Telephone: (949) 477-5050 Facsimile: (949) 477-9200 Attorneys for Defendants Everhome Mortgage Company & Mortgage Electronic Registration Systems, Inc.

Jeffrey B. Gardner, Esq. Barry Gardner & Kincannon, A Professional Corporation 5000 Birch Street, Suite 420 Newport Beach, CA 92660 Telephone: (949) 851-9111 Facsimile: (949) 851-3935 Attorneys for Defendants Wells Fargo Bank NA dba America's Servicing Company and Credit Suisse First Boston Mortgage Securities Corp.

20090716

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