United States District Court, N.D. California
SEAN K. BURKE and DEBORAH L. BURKE, Plaintiffs,
JPMORGAN CHASE BANK, N.A.; WELLS FARGO BANK, N.A., AS TRUSTEE FOR JPMORGAN MORTGAGE TRUST 2008-R2 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2008 R-2, Defendants.
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND
MOTION TO SEAL
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE.
foreclosure dispute, plaintiffs move for relief from judgment
following an order granting defendants' motion for
summary judgment. Plaintiffs' motion is
details of this case are set forth in a previous order
granting defendants' motion for summary judgment (Dkt.
No. 93), but will now be briefly restated.
The Mortgage Loan Note and Deed of Trust.
August 2007, plaintiffs Sean Burke and Deborah Burke obtained
a home loan in the amount of $1, 246, 250.00 from Washington
Mutual Bank, F.A. Plaintiffs signed an adjustable rate note
promising to make payments on it to WaMu.
September 2008, WaMu failed and the Federal Deposit Insurance
Corporation became its receiver. On the same day, JPMorgan
Chase Bank, N.A., executed a purchase and assumption
agreement with the FDIC by which it agreed to purchase
certain WaMu assets, including specifically all mortgage
servicing rights and obligations. One loan acquired was
soon began missing payments, however, and submitted multiple
modification applications, all denied, leading to a notice of
default and two subsequent notices of trustee sales. Both
trustee sales have been postponed.
2015, an assignment was recorded memorializing the September
2008 assignment of plaintiffs' deed of trust, and all
interests in it, from the FDIC to Chase (Dkt. No. 85-5 at
July 2016, plaintiffs remained in default and the loan had an
unpaid principal balance of $1, 303, 620.08 and a total
payoff amount of $1, 823, 963.50.
filed this action in September 2013, and amended their
complaint in February 2014. Plaintiffs' claims rested on
their theory that Chase and Wells Fargo Bank, N.A., as
trustee for JPMorgan Mortgage Trust 2008-R2 Mortgage
Pass-Through Certificates series 2008-R2, lacked a beneficial
interest in plaintiffs' mortgage loan. Chase allegedly
could not enforce the underlying note because WaMu had
allegedly sold the interests in plaintiffs' loan to an
unknown interim loan purchaser prior to Chase's purchase
of WaMu's assets in September 2008. The interim purchaser
then sold the same interests to Wells Fargo, as trustee of
the security trust. Wells Fargo allegedly could not enforce
the underlying note through the trust because there were no
intervening assignments of plaintiffs' deed of trust from
WaMu to the interim purchaser, and from the interim purchaser
to the security trust, as required by the binding terms of
the security trust's agreement and instrument.
evidence of this securitization was ever presented (Dkt. No.
93 at 4). In fact, plaintiffs did not undertake any written
or oral discovery during the course of the action (Dkt. No.
110-1 at 2). Furthermore, plaintiffs response to Chase's
summary judgment motion appended no evidentiary support.
Final Judgment in Favor of Defendants.
full briefing and oral argument, Chase's motion for
summary judgment was granted. The order stated in pertinent
part (Dkt. No. 93 at 4-5):
This order concludes that summary judgment in favor of
defendants is appropriate here because no material dispute
exists as to whether Chase holds a beneficial interest in the
mortgage. Chase owns the mortgage; plaintiff submits nothing
to suggest otherwise.
Defendants submit evidence that demonstrates Chase owns the
loan. Chase possesses the original note as well as the deed
of trust (Childress Decl. ¶ 9-10). A Chase employee who
has reviewed the entire record of the mortgage states in a
declaration that no sale or securitization of the mortgage
occurred prior to Chase's purchase of WaMu's assets
in September of 2008 (Childress Decl. ¶ 10). Moreover,
an assignment of deed was recorded in 2015, which
“memorialize[d] the transfer that occurred by operation
of law on September 25, 2008” of the mortgage from the
FDIC as WaMu's receiver to Chase (RJN, Exh. 6).
The only evidence that plaintiffs cite in their opposition
brief are blurry screenshots appended to the amended
complaint. The screenshots refer to a mortgage-backed
security but make no identifiable reference to
plaintiffs' loan. Plaintiffs make no effort to explain
how the screenshots show plaintiffs' loan was
securitized. This order holds that no reasonable trier of
fact could conclude based on these screenshots that the loan
was securitized prior to Chase's purchase of WaMu's
assets in September 2008.
All of plaintiffs' claims rise and fall on the theory
that defendants do not own the loan. Because Chase
demonstrates that it owns the mortgage, all of
plaintiffs' claims fail.
appealed the order granting defendants' motion for
summary judgment and final judgment in October 2016 (Dkt. No.
96). Plaintiffs now move for relief from the same order and
judgment pursuant to Rule 60(b)(3). This order follows full
briefing, oral argument, and supplemental briefing.
appeal is filed, the district court no longer has
jurisdiction to consider motions for relief from judgment.
Rule 62.1, however, provides that “[i]f a timely motion
is made for relief that the court lacks authority to grant
because of an appeal that has been docketed and is pending,
the [district] court may: (1) defer considering the motion;
(2) deny the motion; or (3) state either that it would ...