ROBERT LOCKETT vs. BANK OF AMERICA, N.A.

NOTICE OF RULING: THE COURT OVERRULES BANA'S DEMURRER TO QUIET TITLE, CANCELLATION OF INSTRUMENT, ACCOUNTING & DECLARATORY RELIEF & DENIES JUDICIAL NOTICE OF THE DEED OF TRUST & ASSIGNMENT OF THE DOT

by Barry Fagan
Contact

THE HONORABLE ABRAHAM KHAN OF THE LOS ANGELES SUPERIOR COURT OVERRULES BANK OF AMERICA'S DEMURRER TO QUIET TITLE, CANCELLATION OF INSTRUMENT, ACCOUNTING AND DECLARATORY RELIEF AND DENIES JUDICIAL NOTICE OF THE DEED OF TRUST AND ASSIGNMENT OF THE DEED OF TRUST BASED ON ALLEGATIONS OF FRAUD, ROBO-SIGNING AND FORGERY.

Judge Khan stated the following in Case No.: BC491093:

Hearing Date: 4/3/13 NOTICE OF RULING:

1. “Judicial Notice is Denied. Judicial notice of an assignment of the deed of trust would be error, where the pleading very specifically alleges that it is a forgery (e.g., First Amended Complaint, ~13).” “….Judicial Notice of the contents of a declaration of compliance with Civil Code Section 2923.5 (regarding diligence to contact borrowers to explore foreclosure alternatives), could not be taken, where the complaint alleged that the declaration is false, and the facts asserted in the declaration are reasonably subject to dispute. See Intengan v. Bac Home Loans Servicing LP (2013) _ Cal.App.4th _, _,2013 Cal. App. LEXIS 225, 18-19, 25.”

2. “Regarding Declaratory Relief, the pleading sufficiently alleges that promissory note was invalidly assigned to one claiming a right to payments based upon the loan transaction, to state an actual controversy.” …” declaratory relief could be actionable where the parties are not facing foreclosure, but are disputing whether the promissory note was properly assigned to one demanding payments based upon the transaction. Mata v. Citimortgage, Inc. (C.D. Cal. 2011) 2011 WL 4542723, 2.”

3. “As for Quiet Title, defendant's adverse "interest," based upon a deed of trust, is alleged (e.g., First Amended Complaint, ~34).” Also, a ruling cited in the reply, is non-binding one from a federal trial judge, and errs in its reasoning, because only an adverse interest is required, not an adverse claim to title. Vega v. JPMorgan Chase Bank, NA. (E.D. Cal. 2009) 654 F. Supp. 2d 1104, 1120 -1121.

4. “With respect to an Accounting, the pleading sufficiently alleges unknown payments to one not entitled to the funds (e.g., First Amended Complaint, ~~22-23, 91-92).” The Appellant has avered that he too can amend his complaint to include an Accounting cause of action.

5. “Regarding a tender, an exception applies, based on allegations that Defendant lacks any beneficial interest in order to conduct a future foreclosure sale-- here due to an alleged forgery.” “Further, a tender is not required, "when the lender has not yet foreclosed and has allegedly violated laws related to avoiding the necessity for a foreclosure." Pfeifer v. Countrywide Home Loans (2012) _ Cal.AppAth _, _, 2012 Cal. App. LEXIS 1265, 61

6. “Concerning cancellation, the Plaintiff sufficiently alleges a void assignment of a deed of trust, based upon a forgery (e.g., First Amended Complaint, ~40).”

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Barry Fagan
Contact
more
less

Law Offices of Barry S Fagan on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!