This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:34:32 (UTC).

TRP FUND IV LIV REV TRUST VS TLP FUNDING

Case Summary

On 04/13/2018 a Property - Other Real Property case was filed by TRP FUND IV LIV REV TRUST against TLP FUNDING in the jurisdiction of Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7065

  • Filing Date:

    04/13/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

MARGARET MILLER BERNAL

 

Party Details

Plaintiff

TRP FUND IV LIV REV TRUST

Defendants

OPTION ONE MORTGAGE LOAN TRUST 2007-1

TLP FUNDING

OPTION ONE MORTGAGE CORPORATION A

SAND CANYON CORPORATION

Trustee

LAURENT PHILIPPE G.

 

Court Documents

Legacy Document

4/13/2018: Legacy Document

Summons

4/13/2018: Summons

Notice of Case Management Conference

4/13/2018: Notice of Case Management Conference

Legacy Document

5/10/2018: Legacy Document

General Denial

5/30/2018: General Denial

Answer

6/19/2018: Answer

Case Management Statement

10/11/2018: Case Management Statement

Case Management Statement

10/12/2018: Case Management Statement

Minute Order

10/26/2018: Minute Order

Notice of Rejection - Fax Filing

12/13/2018: Notice of Rejection - Fax Filing

Proof of Service (not Summons and Complaint)

12/18/2018: Proof of Service (not Summons and Complaint)

Application for Publication

12/20/2018: Application for Publication

Order for Publication

12/26/2018: Order for Publication

Minute Order

12/27/2018: Minute Order

Proof of Publication

2/21/2019: Proof of Publication

Minute Order

3/21/2019: Minute Order

Order

5/1/2019: Order

Minute Order

5/1/2019: Minute Order

13 More Documents Available

 

Docket Entries

  • 01/16/2020
  • Hearingat 09:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Jury Trial

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  • 01/03/2020
  • Hearingat 08:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Final Status Conference

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  • 12/10/2019
  • Hearingat 08:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Mandatory Settlement Conference (MSC)

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  • 05/07/2019
  • DocketNotice of Posting of Jury Fees; Filed by TRP FUND IV LIV REV TRUST (Plaintiff)

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  • 05/01/2019
  • Docketat 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Order to Show Cause Re: (regarding service/answer/responsive pleading/default as to defendant TLP Funding) - Held

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  • 05/01/2019
  • Docketat 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Trial Setting Conference - Held

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  • 05/01/2019
  • DocketTrial Setting Order; Filed by Clerk

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  • 05/01/2019
  • DocketMinute Order ( (Order to Show Cause Re: regarding service/answer/responsive p...)); Filed by Clerk

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  • 04/08/2019
  • DocketRequest for Entry of Default / Judgment; Filed by TRP FUND IV LIV REV TRUST (Plaintiff)

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  • 03/21/2019
  • Docketat 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Order to Show Cause Re: (regarding service/answer/responsive pleading/default as to defendant TLP Funding) - Held - Continued

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15 More Docket Entries
  • 10/11/2018
  • DocketCase Management Statement; Filed by TRP FUND IV LIV REV TRUST (Plaintiff)

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  • 06/19/2018
  • DocketAnswer; Filed by OPTION ONE MORTGAGE LOAN TRUST 2007-1 (Defendant)

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  • 05/30/2018
  • DocketGeneral Denial; Filed by SAND CANYON CORPORATION (Defendant)

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  • 05/10/2018
  • DocketRtn of Service of Summons & Compl; Filed by TRP FUND IV LIV REV TRUST (Plaintiff)

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  • 05/10/2018
  • DocketRtn of Service of Summons & Compl; Filed by TRP FUND IV LIV REV TRUST (Plaintiff)

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  • 05/10/2018
  • DocketRtn of Service of Summons & Compl; Filed by TRP FUND IV LIV REV TRUST (Plaintiff)

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  • 04/13/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/13/2018
  • DocketSummons; Filed by PHILIPPE G. LAURENT (Legacy Party); TRP FUND IV LIV REV TRUST (Plaintiff)

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  • 04/13/2018
  • DocketComplaint filed-Summons Issued; Filed by PHILIPPE G. LAURENT (Legacy Party); TRP FUND IV LIV REV TRUST (Plaintiff)

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  • 04/13/2018
  • DocketCivil Case Cover Sheet; Filed by TRP FUND IV LIV REV TRUST (Plaintiff)

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Tentative Rulings

Case Number: VC067065    Hearing Date: January 07, 2020    Dept: SEC

TRP FUND IV LIV REV TRUST v. TLP FUNDING, et al.

CASE NO.:  VC067065

HEARING 1/7/20

JUDGE: OLIVIA ROSALES

#9

TENTATIVE ORDER

Defendant Wells Fargo Bank, N.A.’s motion for judgment on the pleadings is GRANTED with 10 days leave to amend.

Moving Party to give NOTICE.

COMPLAINT

Plaintiff TRP Fund IV Liv Rev Trust requests cancellation of three instruments as void: First Assignment of Deed of Trust, Second Assignment of Deed of Trust, and Third Assignment of Deed of Trust. Plaintiff alleges that the assignments are void because they were executed by entities who, at the time of the assignments were not the current and actual “nominee” or agent. The Complaint, filed 4/13/18, asserts causes of action for:

1. Cancellation & Expungement of Three Void Instruments

2. Declaratory Relief

WELLS FARGO’S JOP

Defendant Wells Fargo Bank, N.A. moves for judgment on the pleadings on the ground that the Complaint fails to state facts sufficient to constitute a cause of action.

JUDICIAL NOTICE is taken of Defendant’s exhibits. (Ev. Code §§ 451-452.)
STATUTE OF LIMITATIONS: A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. (Id.)

An action seeking to cancel an instrument is subject to either the 3-year statute of limitations pursuant to CCP § 338(d) or the 4-year statute of limitations pursuant to CCP § 343. (Robertson v. Superior Court (2001) 90 Cal.App.4th 1319, 1326.)

The Complaint alleges at 2:19 that the three assignments were fraudulently drafted, and therefore void. A fraud action does not run until three years after discovery of fraud. Because it is unclear when the fraud was discovered, it follows that it does not “clearly and affirmatively” appear on the face of the complaint that the action is necessarily barred. The request for judgment on the pleadings based on the statute of limitations is denied.

CANCELLATION OF INSTRUMENT:

Wells Fargo contends it has lien priority.

On 9/1/06, Borrowers Byron and Maria Ramos obtained a loan secured by a Deed of Trust (“DOT”) encumbering the subject property. (RJN, Ex. A.) The DOT lists TLP Funding as the Lender, and Mortgage Electronic Registration Systems, Inc. (“MERS”) is listed as a nominee for the Lender and “beneficiary under [the] Security Instrument.”

Relying on Ex. 2 to the Complaint, Wells Fargo contends that “On December 7, 2006, MERS, as nominee for TLP Funding, recorded a Corporation Assignment of Deed of Trust assigning the Deed of Trust to Option One Mortgage Corporation.” (Motion, 3:23-25.) However, Ex. 2 does not mention “Option One Mortgage,” and Wells Fargo did not submit any other judicially noticeable document that reflects this assignment on 12/7/06. Nevertheless, the court will accept as true, Plaintiff’s allegation at 7:4 that the assignment was to Option One.

Relying on Ex. 4 to the Complaint, Wells Fargo then contends that “On July 11, 2011, Sand Canyon Corporation, formerly known as Option One Mortgage Corporation, recorded an Assignment of Deed of Trust, assigning the Deed of Trust to Wells Fargo Bank, N.A.” (Motion, 3:26-28.) Again, this exhibit is incomplete because Wells Fargo Bank does not appear on this document. Nevertheless, the court will accept as true, Plaintiff’s allegation at 8:14 that the assignment was to Wells Fargo Bank.

On 11/10/15, after the Borrowers defaulted on their loan, the HOA recorded a Notice of Trustee’s Sale Under Delinquent Assessment Lien. (RJN, Ex. B.) The HOA was the successful bidder on the property (RJN, Ex. C), and took the property subject to Wells Fargo’s senior lien.

On 8/10/17, Plaintiff was issued a Grant Deed by the HOA, which was recorded on 9/25/17. (Complaint, Ex. 1.)

The chain of title establishes Wells Fargo’s senior lien, which was validly assigned and recorded before Plaintiff purchased the property.

Plaintiff initially contends MERS lacked the authority to sign the Assignment of DOT in 2006 because it did not register as a foreign entity in California until 2009. (Opposition, 6:20.) However, this allegation does not appear anywhere in the four corners of the Complaint or in any judicially noticeable documents. Notably, the Opposition does not cite legal authority requiring MERS to be registered prior to assigning the DOTs.

Plaintiff then contends that the third assignment was void because the “Securitized/Remic Trust” was closed in 2007. (Opposition, 9:8-12.) It is unclear what entity this is. The third assignment, which is attached to the Complaint as Ex. 4, does not reference any entity by the name of “Remic.”

Assuming arguendo, that Plaintiff is arguing that the assignment is void because it was made after the trust’s closing date, this argument was made in Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 814, and rejected. The court held, “Yvanova expressly offers no opinion as to whether, under New York law, an untimely assignment to a securitized trust made after the trust's closing date is void or merely voidable. (Id. at pp. 940–941, 199 Cal.Rptr.3d 66, 365 P.3d 845.) We conclude such an assignment is merely voidable. (See Rajamin v. Deutsche Bank Nat'l Trust Co. (2d Cir.2014) 757 F.3d 79, 88–89 [“the weight of New York authority is contrary to plaintiffs' contention that any failure to comply with the terms of the PSAs rendered defendants' acquisition of plaintiffs' loans and mortgages void as a matter of trust law”; “an unauthorized act by the trustee is not void but merely voidable by the beneficiary”].)5 Consequently, Saterbak lacks standing to challenge alleged defects in the MERS assignment of the DOT to the 2007–AR7 trust.”  (See also Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 811; Morgan v. Aurora Loan Services, LLC (9th Cir. 2016) 646 Fed.Appx. 546, 550; Yhudai v. IMPAC Funding Corporation (2016) 1 Cal.App.5th 1252, 1259.) Plaintiff Plaintiffs urge the court to follow Glaski v. Bank of America, N.A. (2013) 218 Cal.App.4th 1079. However, Glaski has been highly criticized. After Glaski was decided, the New York trial court’s decision on which Glaski relied was overturned. (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th802, 812.)

Plaintiff then contends that “robo-signing” renders an assignment void, but this assertion is not supported by any legal authority. (See Opposition, 7:18-9.)

Based on the uncertain allegations in the Complaint and the judicially noticeable documents, it is unclear how the assignments are void.

Motion is GRANTED with 10 days leave to amend.