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Cortez v. Tri Star Realty and Investments

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 ...


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