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).”