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Yhudai v. Impac Funding Corp.

California Court of Appeals, Second District, First Division

July 29, 2016

MOSHE YHUDAI, Plaintiff and Appellant,
v.
IMPAC FUNDING CORPORATION, et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC495503 Mel Red Recana, Judge.

Page 1253

         COUNSEL

         Richard L. Antognini for Plaintiff and Appellant.

Page 1254

         Reed Smith, Michael Gerst, Kasey J. Curtis, and Elena Gekker for Defendants and Respondents.

         OPINION

         ROTHSCHILD, P. J.

         Appellant 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.[1] Yhudai appealed. We affirm.

         FACTUAL AND PROCEDURAL SUMMARY

         Yhudai 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].”

         On 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).[2] 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.

         More 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.

Page 1255

         On 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.

         In his 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.[3] 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 ...


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