YES! ANOTHER HOMEOWNER WINS AGAINST AMERICAS SERVICING COMPANY!! THE TIDE IS FINALLY TURNING AGAINST WELLS FARGO HOME MORTGAGE

CROMWELL vs. NDEX WEST LLC:

Neil Garfield
April 15, 2010 at 2:15 pm
Categories: foreclosure
URL: http://wp.me/p7SnH-20L

Hi All,

I filed a lawsuit against NC, Wells Fargo, and DB in June 2008. I was given a TRO based on my making my regular mortgage payment. Which I did, but they only cashed 1/2 of the checks, then sent the money back to me, put a stop payment on that check, then went in and asked for the TRO to be dissolved because I wasn’t paying. And the judge did! So I file a BK and got a stay; good news is we just survived a MSJ — found out the assignment is not valid because it violates CCC 1095. (I found a website that had a lot of Countrywide attorneys talking about how all their assignments were being kicked back from Freddie Mac and Fannie Mae because they violated 1095). Any way…I have a trial date for 6/1 in front of a jury in Contra Costa County Superior Court. DON’T UNDERESTIMATE THE VALUE OF CHECKING TO SEE IF THE ASSIGNMENTS VIOLATE 1095.

This is the tenative ruling that was CONFIRMED. They granted a summary adjuication on two of the causes but the court finds I have valid evidence to go to trial on three of the causes…now that they no longer have the asssignment (which has no valid POA either!) they will have to provide evidence of ownership another way.

CASE#: MSC08-01603

CASE NAME: CROMWELL vs. NDEX WEST LLC

HEARING ON MOTION FOR SUMMARY ADJUDICATION

FILED BY AMERICA’S SERVICING COMPANY, et al.

* TENTATIVE RULING: *

Defendants’ Motion for Summary Adjudication of the 1st cause of action for breach of contract is granted, for the reason the alleged oral agreement violates the statute of frauds. See CC § 1624(a)(3); Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal. App. 4th 544, 553. In addition, the oral agreement lacks consideration, as a commitment to perform a preexisting contractual obligation has no value. See Auerbach v. Great W. Bank (1999) 74 Cal. App. 4th 1172, 1185; Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal. 3d 665, 674 n.3. Plaintiff does not dispute that under the agreement, she would make payments of specified amounts. (See evidence supporting Fact 1.) Nor has Plaintiff controverted Defendants’ evidence that she was in arrears by eight months over $25,000 in accrued principal and interest, and owed ASC another $15,636.39 in tax advances; Cromwell declaration ¶¶ 5-6. Plaintiff’s argument that consideration exists in that she paid monies to entities that do not have a right to collect payment lacks merit.

To the extent Plaintiff is attempting to assert an additional claim in her 1st cause of action for breach of the implied covenant of good faith and fair dealing, that claim also lacks merit. There is no obligation to deal fairly or in good faith absent an existing contract. See Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal. App. 4th 1026, 1032.

Summary adjudication of the 2nd cause of action for fraud is denied. Plaintiff alleges that Defendants falsely represented that they had the authority to sell her property and concealed from her that they had no such authority because they had never recorded an assignment of the Deed of Trust. Defendants show that there was a recorded Assignment of Deed of Trust dated March 26, 2008, wherein New Century purported to assign to Deutsche Bank all beneficial interest under the Deed of Trust. However, Plaintiff correctly asserts that this assignment is invalid for the reason it violates CC § 1095, in that it was executed solely by Wells Fargo as attorney-in-fact for New Century, without subscribing New Century’s name. See Morrison v. Bowman (1865) 29 Cal. 337, 341, 352; Mitchell v. Benjamin Franklin Bond & Indem. Corp. (1936) 13 Cal.App.2d 447, 448.

Regardless, Defendants contend in their reply that Plaintiff has admitted that Deutsche Bank entered into a Pooling and Servicing Agreement (“PSA”) dated March 1, 2006, and that pursuant to ¶ 2.01 of the PSA, Morgan Stanley Capital I, Inc., as Depositor, conveyed to Deutsche Bank, as trustee, “the right, title and interest to the subject Deed of Trust and subject Promissory Note.” Defendants assert that this concession by Plaintiff alone is sufficient to sustain summary adjudication in Defendants’ favor. The court disagrees. There is no evidence, submitted by either Plaintiff or Defendants, that the PSA or any of the other documents attached to Plaintiff’s request for judicial notice actually involve Plaintiff’s mortgage. There is only Plaintiff’s assertion to that effect in her opposing argument. The documents provided in Plaintiff’s request for judicial notice include only a few select pages from each of the documents, and it is not shown that Plaintiff’s mortgage is necessarily included in them.

Summary adjudication of the cause of action for declaratory relief is denied for the same reasons applied to the fraud cause of action.

Summary adjudication of the cause of action for unjust enrichment is granted. Plaintiff does not dispute that her allegations that Defendants violated the TILA and RESPA lack merit. See evidence in support of Defendants Facts 8 & 9. Plaintiff contends that the unjust enrichment cause of action succeeds because her fraud claims justify her loan rescission, and also because Defendants hold no interest in the note. These arguments fail because they are not supported by the allegations in the cause of action for unjust enrichment. The pleadings serve as the outer measure of materiality in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. Weil & Brown, Civ. Proc. Before Trial, § 10:10:17.

Summary adjudication of Plaintiff’s cause of action for quiet title is denied for the reason Defendants fail to address the entire cause of action as alleged. Contrary to Defendants’ assertion, rescission under the TILA is not the sole basis for Plaintiff’s claim, as she also seeks to quiet title at ¶ 162 on the ground Defendants’ claims “are without any right, and Defendants have no title, estate, lien, or interest in the Subject Property.” Because Defendants have not prevailed in regard to Plaintiff’s fraud cause of action, Defendants cannot assert that they have also shown Plaintiff is not entitled to quiet title on this basis. In addition, Defendants fail to address Plaintiff’s express allegations that she is excused from tendering the full amount of the loan. (¶¶ 164, 165.)

Defendants’ objections are sustained. The parties’ requests for judicial notice are granted.