California Court of Appeals, Second District, First Division
from a judgment of the Superior Court of Los Angeles County,
No. BC495503 Mel Red Recana, Judge.
L. Antognini for Plaintiff and Appellant.
Smith, Michael Gerst, Kasey J. Curtis, and Elena Gekker for
Defendants and Respondents.
Moshe Yhudai sued his lender and other parties alleging
causes of action arising from the nonjudicial foreclosure
sale of his residence. The trial court sustained the
respondents’ demurrer to Yhudai’s second amended
complaint without leave to amend and entered a judgment
dismissing the case with prejudice. Yhudai appealed. We
AND PROCEDURAL SUMMARY
owned a residence in Los Angeles. In February 2007 he
borrowed $1, 802, 500 from Impac Funding, and secured the
loan with a deed of trust against the residence. Impac
Funding is named as the “lender” and MERS as the
“beneficiary.” The deed of trust provides that
(1) MERS “is acting solely as a nominee for Lender and
Lender’s successors and assigns” and (2)
Yhudai’s promissory note, together with the deed of
trust, “can be sold one or more times without prior
notice to [Yhudai].”
March 29, 2007, Impac Funding sold Yhudai’s promissory
note and other promissory notes to a certain securitized
investment trust (the ISA Trust). Deutsche Bank is the
trustee of the ISA Trust, which was formed under New York law
pursuant to a pooling and service agreement
(PSA). Under the PSA, in order for a loan to
be included in the ISA Trust, it must be transferred into the
trust by the “closing date” of March 29, 2007.
than two years after the ISA Trust’s closing date,
MERS, as nominee for Impac Funding, recorded an
“Assignment of Deed of Trust, ” purporting to
assign to Deutsche Bank, as trustee of the ISA Trust,
“[a]ll beneficial interest” under the deed of
trust “together with the Promissory Note secured by
said Deed of Trust” (the 2009 assignment). The 2009
assignment is dated August 31, 2009, signed on October 15,
2009, and recorded in Los Angeles County on October 22, 2009.
February 22, 2012, Deutsche Bank, as trustee for the ISA
Trust, recorded a substitution of trustee naming ReconTrust
Company, N.A. (ReconTrust) the trustee under the deed of
trust. The same day, ReconTrust recorded a notice of default
and election to sell the property pursuant to the deed of
trust. About three months later, ReconTrust recorded a notice
of trustee’s sale. On June 15, 2012, ReconTrust
conducted a trustee’s sale and sold the property to
Deutsche Bank, as trustee for the ISA Trust.
second amended complaint, Yhudai alleged that the 2009
assignment is void because it occurred after the ISA
Trust’s closing date, and that Deutsche Bank’s
and ReconTrust’s actions, including the trustee’s
sale, are void because they are derived from the void 2009
assignment. He asserted causes of action for: (1)
negligent misrepresentation; (2) slander of title; (3) fraud;
(4) quiet title; (5) declaratory and injunctive relief; and
(6) violation of Business and Professions Code section 17200.
Yhudai sought damages and equitable relief, including orders
nullifying and rescinding the foreclosure sale, cancellation
of the notice of default and notice of trustee’s sale,
and a judgment quieting ...