United States District Court, N.D. California
JOHN F. LUNDY, Plaintiff,
SELENE FINANCE, LP, et al., Defendants.
ORDER DISMISSING FOR LACK OF STANDING, Re: ECF,
TIGAR United States District Judge
Court does not reach the merits of the motion because it
concludes that Plaintiff is not the real party in interest
and lacks standing to bring this case. If Plaintiff's
wife, Nancy Lundy, does not “ratify, join, or be
substituted into the action” within 10 days, the Court
will dismiss the case.
REQUESTS FOR JUDICIAL NOTICE
Court must first resolve Defendants' pending request for
judicial notice. ECF No. 118. Except for the Purchase and
Assumption Agreement, ECF No. 118 at 31, the documents in
question were publicly recorded in Marin County. These public
records are properly subject to judicial notice. Lee v.
City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir.
2001) (“[U]nder Fed.R.Evid. 201, a court may take
judicial notice of matters of public record.”)
(internal quotations and citation omitted). The Purchase and
Assumption Agreement, though not recorded, is also a public
record and has been judicially noticed several times in this
district. Eng v. Dimon, No. 11-3173, 2012 U.S. Dist.
LEXIS 1206942012 (N.D. Cal. Aug. 24, 2012). The Court grants
December 21, 2005, Plaintiff John Lundy obtained a mortgage
loan secured by a Deed of Trust (“DOT”) from
Defendant Washington Mutual Bank, FA (“WAMU”) in
the amount of $1, 134, 000.00 (“Mortgage”), in
order to purchase a single family home in San Rafael,
California. ECF No. 130-2 at 6-7. The DOT was recorded in
Marin County on December 30, 2005. Id. The DOT
identifies WAMU as the lender and loan servicer, and conveys
title and power of sale to California Reconveyance
Corporation (“CRC”) as the trustee. Id.
It also lists a loan number of 3060169236 on the upper
right-hand corner. Id.
claims that, on or before March 29, 2007, WAMU sold the
Mortgage to RESI Finance Limited Partnership 2007-B Trust
(“RESI 2007-B Trust”). ECF No. 130-3 ¶ 17.
Lawrence Asuncion, Plaintiff's subject matter expert on
the secondary mortgage market involving securitization
structure and transaction, and . . . Chief Forensic
Securitization Audit and Mortgage Fraud Analyst for Certified
Securitization Analysis, ” located Plaintiff's loan
in the search engine ABSNet. Id. Asuncion describes
ABSNet as a database maintained by Lewtan Technologies, a
Moody's Analytic Company, that is “utilized by
financial analysts and institutional investors to monitor and
analyze real-time performance of a portfolio of asset and
mortgage-backed instruments.” ECF No. 130-3 ¶ 16.
Using ABSNet, Asuncion identified a loan with the same loan
amount, loan number, and zip code as Plaintiff's WAMU
loan. Id. ¶ 17; ECF No. 130-2 at 63-64.
Asuncion summarized his findings as follows:
My audit therefore verified with complete accuracy that
Plaintiff's mortgage loan was, in fact, sold and
securitized to the RESIF 2007-B Trust, a private placement
mortgage securitization trust. Wells Fargo Bank, N.A. serves
as the fiduciary owner of the mortgage loans in the trust
fund as the “trustee” of the RESIF 2007-B Trust
for the benefit of its certificateholders (investors).
Id. ¶ 18.
JPMorgan Chase Bank, National Association
(“Chase”) then acquired assets of the defunct
WAMU on September 25, 2008 though a Purchase and Assumption
Agreement (“PAA”). ECF No. 118 at 32. Plaintiff
received monthly statements from Chase and discussed
modification and foreclosure prevention options with Chase
representatives. ECF No. 116 at 269-70.
successor in interest to WAMU, Chase recorded on November 4,
2010 an Assignment of Deed of Trust dated November 3, 2010
(“Assignment 1”) in Marin County, transferring
the DOT to Defendant Bank of America, National Association
(“BANA”). ECF No. 118 at 29. On the same date
Chase recorded Assignment 1, CRC recorded in Marin County a
Notice of Default and Election to Sell (“NOD 1”).
ECF No. 130-2 at 39. On January 29, 2014, Chase, as
attorney-in-fact for BANA, recorded a Substitution of Trustee
dated January 16, 2014 (“SOT 1”) in Marin County,
under which ALAW substituted CRC as trustee of the DOT. ECF
No. 118 at 77. On March 11, 2015, BANA recorded in Marin
County an Assignment of Deed of Trust dated February 5, 2015
(“Assignment 2”), transferring all beneficial
interests in the DOT to Wilmington Savings Fund Society, FSB,
doing Business as Christiana Trust, not in its individual
capacity, but solely as trustee for BCAT 2014-12TT
(“Wilmington”). ECF No. 118 at 82. On July 10,
2015, Selene Finance LP (“Selene”), as servicer
and attorney-in-fact for Wilmington, recorded a Substitution
of Trustee dated July 2, 2015 (“SOT 2”) in Marin
County. ECF No. 118 at 85. Under SOT 2, MTC Financial Inc.
dba Trustee Corps (“MTC”) substituted ALAW as
trustee under the DOT. Id. On August 14, 2015, MTC
recorded a Notice of Default dated August 13, 2015
(“NOD 2”) with the Marin County Recorder's
Office. Id. at 87.
7, 2016, a notice of trustee's sale was recorded on the
property. Id. at 95. The property was sold on August
4, 2016 to Wilmington, and a deed upon sale was recorded on
August 10, 2016. Id. at 98.
gist of Lundy's argument is that Chase had no interest in
the DOT to assign to BANA or anyone else in 2010 because WAMU
had transferred all beneficial interests in the DOT to RESI
before Chase acquired any assets from WAMU. Therefore,
Assignment 1 and all documents stemming therefrom are fatally
defective, null, and void, and Defendants did not have
standing to initiate foreclosure proceedings. ECF No. 130 at
8. Plaintiff claims he was damaged by the loss of his real
property, “damage to his creditworthiness and moneys
paid to the wrong defendant.” Id. at 15.
relevant is the fact that, on August 8, 2014, Plaintiff
transferred title of the property to his wife, Nancy A.M.
Lundy as her “sole and separate ...