Brown v. Deutsche Bank National Trust CA2/7

Filed 10/3/24 Brown v. Deutsche Bank National Trust CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

CHERIE BROWN, B324911

Plaintiff and Appellant, (Los Angeles County Super. Ct.

No. BC475181)

v.

DEUTSCHE BANK NATIONAL

TRUST CO., as Trustee, etc.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Malcolm H. Mackey, Judge. Affirmed.

JDR Law Inc. and John D. Rowell for Plaintiff and

Appellant.

Kutak Rock, Steven M. Dailey and Jennifer L. Andrews for

Defendant and Respondent.

INTRODUCTION

In 2007 Cherie Brown purchased a home from Youval Zive

and executed a promissory note in favor of Zive secured by a deed

of trust. The principal amount of the promissory note included

the balance due on two underlying promissory notes executed by

Zive in favor of Washington Mutual Bank and secured by deeds of

trust on the property. In 2011 Zive foreclosed on the property,

and the property was sold at a trustee’s sale.

Brown filed this action against Zive and others for fraud,

wrongful foreclosure, and quiet title. She asserted one cause of

action for quiet title against Deutsche Bank Trust Company, the

trustee for a securitized trust into which one of the underlying

Washington Mutual loans was transferred. Brown argues the

trial court erred in granting Deutsche Bank’s motion for

summary judgment and denying her request for a continuance

under Code of Civil Procedure section 437c, subdivision (h).1 We

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Zive Obtains a Loan From Washington Mutual

In March 2006 Zive executed a promissory note in the

amount of $980,000 in favor of Washington Mutual secured by a

deed of trust on property he owned in Los Angeles (the

Washington Mutual-Zive loan). After the loan closed,

Washington Mutual transferred the loan to the WaMu Pass-

Through Certificates Series 2006-AR5 Trust (the Trust),

1 Undesignated statutory references are to the Code of Civil

Procedure.

2

a securitized trust, pursuant to a pooling and servicing

agreement that named Deutsche Bank as trustee.2

B. Brown Purchases the Property From Zive

In July 2006 Brown became interested in purchasing the

property from Zive. Zive told Brown that he was an attorney and

that he would prepare all the necessary sales and financing

documents for the transaction. Zive said the purchase “would be

financed by cash payments by Brown of $155,000,” a “‘first loan’”

by Washington Mutual in the amount of $980,000, and a loan

from Zive for $72,500 (the Zive-Brown loan). Brown and Zive

signed a purchase agreement in which Brown agreed to buy the

property for a little more than $1.2 million.

In November 2006 Brown executed a promissory note in

favor of Zive for approximately $1 million (the Zive-Brown note).

The promissory note provided for monthly payments of $3,030 “or

more,” a $30,000 principal payment due on December 20, 2006,

and a maturity date of March 1, 2008. The promissory note

2 “The mortgage securitization process has been concisely

described as follows: ‘To raise funds for new mortgages, a

mortgage lender sells pools of mortgages into trusts created to

receive the stream of interest and principal payments from the

mortgage borrowers. The right to receive trust income is

parceled into certificates and sold to investors, called

certificateholders. The trustee hires a mortgage servicer to

administer the mortgages by enforcing the mortgage terms and

administering the payments. The terms of the securitization

trusts as well as the rights, duties, and obligations of the trustee,

seller, and servicer are set forth in a Pooling and Servicing

Agreement (“PSA”).’” (Yvanova v. New Century Mortgage Corp.

(2016) 62 Cal.4th 919, 930, fn. 5.)

3

stated the principal amount included the unpaid balance on two

underlying promissory notes (in the aggregate amount of

approximately $1 million) executed by Zive in favor of

Washington Mutual and secured by deeds of trust on the

property. In January 2007 Zive recorded two documents with the

county recorder’s office: a grant deed transferring the property to

Brown and a deed of trust (the Zive-Brown deed of trust) securing

the Zive-Brown note. In March 2008 Zive and Brown executed an

addendum to the Zive-Brown note extending the maturity date to

March 1, 2010, conditioned on Brown paying $30,000 in quarterly

installments.

C. JP Morgan Chase Bank Acquires the Assets of

Washington Mutual

In September 2008 Washington Mutual failed, and the

Office of Thrift Supervision appointed the Federal Deposit

Insurance Corporation (FDIC) as receiver. Under a purchase and

assumption agreement with the FDIC, JPMorgan Chase Bank

purchased Washington Mutual’s assets and assumed “all

mortgage servicing rights and obligations.” In June 2009

JPMorgan Chase assigned the Washington Mutual-Zive deed of

trust to Deutsche Bank as trustee for the Trust.

D. Zive Forecloses on the Zive-Brown Deed of Trust

Brown alleged that she made payments to Zive on the Zive-

Brown note by delivering to him checks made payable to

Washington Mutual and JPMorgan Chase, but that after

January 1, 2009 Zive did not deliver the checks to the lenders. In

June 2009 the trustee on the Washington Mutual-Zive deed of

trust recorded a notice of default that stated Zive stopped making

4

payments on the loan in January 2009. In September 2009 the

trustee recorded a notice of trustee’s sale.

In 2011 Zive initiated nonjudicial foreclosure proceedings

against Brown on the Zive-Brown deed of trust. A notice of

default was recorded in January 2011, and a notice of trustee’s

sale was recorded in July 2011. In September 2011 Zive assigned

his rights in the Zive-Brown deed of trust to Phoenix Realty

Investments, which subsequently purchased the property at a

trustee’s sale. Phoenix Realty filed an unlawful detainer action

against Brown, obtained a judgment, and evicted her from the

property.

E. Brown Files This Action

In December 2011 Brown filed this action against Zive,

related parties, and Doe defendants for fraud, wrongful

foreclosure, and quiet title. In 2015 Brown amended her

complaint to substitute Deutsche Bank as one of the Doe

defendants. In the operative second amended complaint, the only

cause of action Brown asserted against Deutsche Bank was for

quiet title.

In 2019 the trial court dismissed the action pursuant to

sections 583.310 and 583.360 because Brown failed to bring the

case to trial within five years. We reversed, holding the trial

court should have excluded from its calculation of the five-year

period the amount of time an automatic stay was in effect while

one of the defendants was in bankruptcy. (Brown v. Zive

(Nov. 16, 2021, B300415) [nonpub. opn.].)

5

F. The Trial Court Grants Deutsche Bank’s Motion for

Summary Judgment

In 2022 Deutsche Bank moved for summary judgment.

Deutsche Bank argued the Washington Mutual-Zive deed of trust

took priority over Brown’s interest in the property because the

deed of trust was recorded nine months before the grant deed to

Brown and because Brown had actual notice of the

Washington Mutual-Zive deed of trust. Deutsche Bank argued it

was authorized to enforce the Washington Mutual-Zive deed of

trust as the trustee of the Trust and as the holder of the original

Washington Mutual-Zive note.

In support of its motion Deutsche Bank submitted the

declaration of Sherry Benight, a document control officer at

Select Portfolio Servicing (SPS). Benight stated that SPS was

“the authorized loan servicer for Deutsche Bank National Trust

Company, as Trustee for WaMu Pass-Through Certificates Series

2006-AR5 Trust,” and that the Trust owned the Washington

Mutual-Zive loan. Benight said she was authorized to provide

the declaration on behalf of Deutsche Bank pursuant to the

servicing agreement between SPS and Deutsche Bank. She

stated the Trust had owned the Washington Mutual-Zive loan,

and Deutsche Bank had been the trustee for the Trust, since

May 2006. Benight stated that Washington Mutual was the

original servicer of the Washington Mutual-Zive loan, that

JPMorgan Chase became the servicer at some point, and that

SPS became the servicer in August 2013.

Benight stated that SPS maintained “loan records” and

“collateral files” for loans it serviced and that SPS was “in

possession of the collateral file” for the Washington Mutual-Zive

loan, which included “copies of the documents evidencing the

6

origination of the Loan and the subsequent assignment and

transfer thereof.” Benight said SPS was “in physical possession

of the . . . original ‘wet-ink’ Note for the Loan, which SPS

maintains on behalf of Deutsche Bank.” She stated the original

note in SPS’s file contained the “original signature of Zive” and

“an endorsement stamp, from Washington Mutual, endorsing the

Note in blank without recourse.” Deutsche Bank attached copies

of the Washington Mutual-Zive note and deed of trust as exhibits

to Benight’s declaration.

Benight stated Washington Mutual transferred its interest

in the loan to a subsidiary, WaMu Asset Acceptance Corporation,

which transferred the loan to the Trust. A copy of the pooling

and servicing agreement for the Trust was attached as an exhibit

to Benight’s declaration. Also attached was a document Benight

described as the “mortgage schedule” for the pooling and

servicing agreement. Benight stated the mortgage schedule

showed the Washington Mutual-Zive loan was “one of the loans

transferred into the Trust in advance of the Closing Date for the

Trust.” Deutsche Bank also submitted excerpts of Benight’s

deposition testimony.

Deutsche Bank asked the court to take judicial notice of

eight documents, including a declaration by Zive, the order of the

Office of Thrift Supervision appointing the FDIC as receiver of

Washington Mutual, the purchase and assumption agreement by

which JPMorgan Chase purchased Washington Mutual’s assets,

and four documents recorded with the county recorder’s office.

In opposition to the motion, Brown argued Deutsche Bank

did not meet its initial burden to show the Trust owned the

Washington Mutual-Zive note and deed of trust. Brown objected

to Benight’s declaration on the grounds Benight lacked personal

7

knowledge and could not authenticate the documents attached to

her declaration. Brown also opposed some of Deutsche Bank’s

requests for judicial notice. Brown argued that, because

Deutsche Bank did not submit any admissible evidence

Washington Mutual transferred the Washington Mutual-Zive

note to the Trust before the Trust’s cut-off date of May 1, 2006,

the assignment to the Trust was “a nullity.” Brown asked the

court to continue or deny the motion under section 437c,

subdivision (h), to allow her to take an additional deposition of

Deutsche Bank regarding the “transfer/delivery/assignment” of

the Washington Mutual-Zive note and deed of trust to the Trust.

Brown submitted her declaration, the declaration of her

attorney, and excerpts from the depositions of Deutsche Bank

representatives. Counsel for Brown’s declaration described the

depositions Brown had taken of the Deutsche Bank

representatives and the documents Deutsche Bank had produced

and explained why Brown needed additional discovery.

In reply, Deutsche Bank argued that Brown did not have

standing to challenge the assignment of the deed of trust and

that, even if the deed of trust was not properly assigned to the

Trust, Deutsche Bank could enforce the deed of trust as the

holder of the original Washington Mutual-Zive note. Deutsche

Bank objected to the majority of the declarations by Brown and

her attorney and to the deposition testimony of the Deutsche

Bank representatives.

The court granted Deutsche Bank’s motion for summary

judgment. The court ruled Deutsche Bank was entitled to

summary judgment on Brown’s cause of action for quiet title

because the Washington Mutual-Zive deed of trust “undisputedly

takes priority over [Brown’s] interest” in the property. The court

8

stated that “the interest in the loan was transferred to Deutsche

Bank,” that the Washington Mutual-Zive loan was transferred to

the Trust, that Brown “had actual notice” of the Washington

Mutual-Zive loan “at the time she acquired her interest in the

property,” and that “any interest [Brown] obtained in the

property was subject to this prior recorded lien.”

The court overruled Brown’s objections to Benight’s

declaration3 and the deposition testimony, took judicial notice of

Zive’s declaration and its attachments, and sustained in part and

overruled in part Brown’s objections to Deutsche Bank’s request

for judicial notice of two recorded deeds of trust, the Office of

Thrift Supervision order, and the purchase and assumption

agreement (although the trial court did not indicate what

portions of these documents it judicially noticed). According to

the minute order from the hearing on Deutsche Bank’s motion for

summary judgment, the court admitted into evidence the

Washington Mutual-Zive deed of trust and the pooling and

servicing agreement. The trial court sustained all of Deutsche

Bank’s objections to Brown’s evidence. The court denied Brown’s

request under section 437c, subdivision (h), to continue the

hearing on the motion for summary judgment. The court entered

judgment for Deutsche Bank, and Brown timely appealed.

3 The court stated in its order “Benight’s personal knowledge

is not required because the offered testimony comes from SPS’s

business records and therefore [is] subject to the business records

exception.”

9

DISCUSSION

A. The Trial Court Did Not Prejudicially Err in Ruling

on the Parties’ Evidentiary Objections and Requests

for Judicial Notice

1. Any Error in Overruling Brown’s Objections

Was Harmless

Brown argues the court erred in overruling her objections

to Benight’s declaration. Brown contends Benight lacked

personal knowledge to authenticate the six documents attached

to her declaration because “Benight did not see any of the

documents . . . being made or executed.” Brown also argues the

court erred in ruling the documents were admissible under the

business records exception to the hearsay rule. Any error by the

trial court in ruling on Brown’s objections, however, was

harmless.

“The business records exception requires a foundational

showing that (1) the writing was made in the regular course of

business; (2) at or near the time of the act, condition, or event;

(3) the custodian or other qualified witness testifies to its identity

and mode of preparation; and (4) the sources of information and

mode and method and time of preparation indicate

trustworthiness.” (Conservatorship of S.A. (2018) 25 Cal.App.5th

438, 447; see Evid. Code, § 1271.) Benight’s declaration made

this showing for records her employer, SPS, created and

maintained in its role as servicer of the Trust. But nothing in

Benight’s declaration established she knew how Washington

Mutual prepared or maintained the documents that were

transferred to SPS when SPS became the Trust’s servicer.

10

Therefore, whether reviewed for abuse of discretion or de novo,4

the court erred in ruling several Washington Mutual-generated

documents were admissible under the business records exception

to the hearsay rule.5 (See Midland Funding LLC v. Romero

(2016) 5 Cal.App.5th Supp. 1, 9 [employee of servicer of defaulted

credit card account “had personal knowledge that the documents

were part of [the current account owner’s] business records, but

did not satisfactorily establish those documents were a part of the

prior creditor’s business records under Evidence Code

4 See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 (“we

need not decide generally whether a trial court’s rulings on

evidentiary objections based on papers alone in summary

judgment proceedings are reviewed for abuse of discretion or

reviewed de novo”); Alexander v. Scripps Memorial Hospital

La Jolla (2018) 23 Cal.App.5th 206, 226 (in Reid “the California

Supreme Court expressly declined to reach the issue of the

appropriate standard of review for reviewing a trial court’s

rulings on evidentiary objections made in connection with a

summary judgment motion”).

5 In particular, the court erred in admitting a document

titled “Washington Mutual Mortgage Securities Corp. Legal Loan

Listing as of 06/02/2006,” which Benight stated was an excerpt

from the pooling and servicing agreement’s “Mortgage Schedule.”

Deutsche Bank argued the document, which included information

about a loan that appeared to be the Washington Mutual-Zive

loan, was evidence the Washington Mutual-Zive loan was

transferred to the Trust. But the document was not included in

the pooling and servicing agreement, and Benight’s declaration

was insufficient to admit the document under the business

records exception to the hearsay rule. (See Evid. Code, § 1271,

subds. (a), (b), & (c).)

11

section 1271” because “there was no evidence regarding the mode

of preparation or other information indicating trustworthiness”];

Sierra Managed Asset Plan, LLC. v. Hale (2015) 240 Cal.App.4th

Supp. 1, 9 [declaration by a debt collector’s employee established,

at best, the debt collector “received records originating from [the

creditor] concerning the account in question,” which fell “short of

the foundation necessary for admission of business records as

against a hearsay objection”]; see also People v. Selivanov (2016)

5 Cal.App.5th 726, 775 [witnesses did not establish documents

were admissible under the business records exception because,

although the “witnesses may have been knowledgeable about

[accounting software] and accounting generally, they could not

offer the jury any information about the ‘identity and the mode

of . . . preparation’” of the documents offered as evidence].)

The error, however, was harmless. (See ABM Industries

Overtime Cases (2017) 19 Cal.App.5th 277, 293 [“the ‘judgment of

the trial court may not be reversed on the basis of the erroneous

admission of evidence, unless that error was prejudicial’”]; Grail

Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA,

Inc. (2014) 225 Cal.App.4th 786, 799 [appellant has the burden of

establishing an error in admitting hearsay documents under

Evidence Code section 1271 was prejudicial].) The only document

Deutsche Bank needed from the ones attached to Benight’s

declaration to meet its initial burden on summary judgment

(other than documents that were also attached to Deutche Bank’s

request for judicial notice) was the pooling and servicing

agreement, and that document was admissible as an executed

12

document for its operative facts.6 (See Jazayeri v. Mao (2009)

174 Cal.App.4th 301, 316 [“documents containing operative facts,

such as the words forming an agreement, are not hearsay”]; see

also J&A Mash & Barrel, LLC v. Superior Court (2022)

74 Cal.App.5th 1, 18-19 [“‘Operative facts draw their significance

from having been said or written regardless of whether they are

true, and such facts lie outside the hearsay rule.’”]; People v.

Nelson (2012) 209 Cal.App.4th 698, 711 [error in admitting

documents under Evidence Code section 1271 was harmless

where “there was other competence evidence” of the same fact].)7

6 As we will discuss in section B(2) of the Discussion, the

pooling and servicing agreement—combined with admissible

statements in Benight’s declaration and documents subject to

judicial notice—showed that Brown acquired her interest in the

property subject to the Washington Mutual-Zive deed of trust,

that Deutsche Bank owned the Washington Mutual-Zive note,

and that Deutsche Bank was authorized to enforce the

Washington Mutual-Zive deed of trust.

7 Although Brown argues generally that Benight’s

declaration did not authenticate the documents Deutsche Bank

submitted in support of its motion for summary judgment, she

does not challenge the authenticity of the pooling and servicing

agreement, a copy of which is available on the U.S. Securities and

Exchange Commission’s website. In any event, as we will

discuss, Brown relied on the pooling and servicing agreement to

argue the assignment of the Washington Mutual-Zive deed of

trust was void because it violated terms of the pooling and

servicing agreement. (See Evid. Code, § 1414 [“A writing may be

authenticated by evidence that: [¶] (a) The party against whom it

is offered has at any time admitted its authenticity; or [¶] (b) The

13

2. The Trial Court Did Not Err in Ruling on

Deutsche Bank’s Requests for Judicial Notice

Deutsche Bank asked the trial court to take judicial notice

of eight documents, five of which requests Brown opposed. The

trial court properly took judicial notice of: (1) the order of the

Office of Thrift Supervision appointing the FDIC as receiver of

Washington Mutual; (2) the purchase and assumption agreement

between the FDIC and JPMorgan Chase; (3) the Washington

Mutual-Zive deed of trust; (4) the Zive-Brown deed of trust; and

(5) the grant deed to Brown.8

The Office of Thrift Supervision order and the purchase

and assumption agreement were judicially noticeable under

Evidence Code section 452, subdivisions (c) and (h). (See Scott v.

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 753

[“the FDIC’s official act of transferring certain WaMu assets (but

not certain liabilities) to JPMorgan as of September 25, 2008—as

evinced by the [Purchase and Assumption] Agreement—is an

official act subject to judicial notice under [Evidence Code]

section 452, subdivision (c),” and the “fact of the P & A

Agreement and the fact of the transfer to JPMorgan of WaMu

assets . . . are not reasonably subject to dispute and are capable

of ready determination” under Evidence Code section 452,

subdivision (h)]; Argueta v. J.P. Morgan Chase (E.D.Cal. 2011)

787 F.Supp.2d 1099, 1103 [taking judicial notice of the purchase

writing has been acted upon as authentic by the party against

whom it is offered.”].)

8 Deutsche Bank requested judicial notice of other

documents, but we address only those documents Deutsche Bank

needed to carry its initial burden.

14

and assumption agreement between the FDIC and JPMorgan

Chase]; Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D.Cal. 2010)

732 F.Supp.2d 952, 959 [taking judicial notice of the purchase

and assumption agreement between the FDIC and JPMorgan

Chase]; Jarvis v. JP Morgan Chase Bank, N.A. (C.D.Cal., July 23,

2010, No. CV 10-4184-GHK (FMOx) 2010 WL 2927276, p. 1

[taking judicial notice of the Office of Thrift Supervision order

appointing the FDIC as receiver of Washington Mutual and the

purchase and assumption agreement between the FDIC and

JPMorgan Chase].)

The two deeds of trust and the grant deed were judicially

noticeable under Evidence Code section 452, subdivisions (c)

and (h). (See Yvanova v. New Century Mortgage Corp. (2016)

62 Cal.4th 919, 924, fn. 1 (Yvanova) [“existence and facial

contents of” a deed of trust, an assignment of the deed of trust,

and other recorded documents are subject to judicial notice under

Evidence Code section 452, subdivisions (c) and (h)]; Fontenot v.

Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 266 [“a court

may take judicial notice of the fact of a document’s recordation,

the date the document was recorded and executed, the parties to

the transaction reflected in a recorded document, and the

document’s legally operative language”], disapproved on another

ground in Yvanova, at p. 939, fn. 13.)9

9 Brown also argues the trial court erred in overruling her

objections to Benight’s deposition testimony and in sustaining

Deutsche Bank’s objections to her declaration, the declaration of

her attorney, and deposition testimony of Deutsche Bank

representative Mark Syphus. Because we do not rely on

Benight’s deposition testimony in concluding Deutsche Bank met

its initial burden on summary judgment, and because Brown’s

15

B. The Trial Court Did Not Err in Granting Deutsche

Bank’s Motion for Summary Judgment

1. Applicable Law and Standard of Review

“A court may grant a motion for summary judgment only

when all the papers submitted show that there is no triable issue

as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” (Fajardo v. Dailey (2022)

85 Cal.App.5th 221, 225, internal quotation marks omitted; see

§ 437c, subd. (c); Regents of University of California v. Superior

Court (2018) 4 Cal.5th 607, 618.) “A defendant seeking summary

judgment must show that the plaintiff cannot establish at least

one element of the cause of action.” (Regents, at p. 618; see Long

Beach Memorial Medical Center v. Allstate Ins. Co. (2023)

95 Cal.App.5th 710, 715; Mattei v. Corporate Management

Solutions, Inc. (2020) 52 Cal.App.5th 116, 122.) “‘Only after the

defendant carries that initial burden does the burden shift to the

plaintiff “to show that a triable issue of one or more material

facts exists as to the cause of action . . . .”’” (Fajardo, at

pp. 225-226; see Campbell v. FPI Management, Inc. (2024)

98 Cal.App.5th 1151, 1162.)

“‘“We review a grant of summary judgment de novo and

decide independently whether the facts not subject to triable

dispute warrant judgment for the moving party as a matter of

law. [Citations.] We ‘liberally construe the evidence in support

of the party opposing summary judgment and resolve doubts

concerning the evidence in favor of that party.’”’” (Fajardo v.

evidence did not raise a triable issue of material fact, we do not

consider whether the trial court erred in ruling on the

admissibility of this evidence.

16

Dailey, supra, 85 Cal.App.5th at p. 226; see Long Beach Memorial

Medical Center v. Allstate Ins. Co., supra, 95 Cal.App.5th at

p. 716.)

2. Deutsche Bank Was Entitled to Summary

Judgment on Brown’s Cause of Action for Quiet

Title

In her only cause of action against Deutsche Bank, Brown

sought to quiet title to the property. “The purpose of a quiet title

action is to finally settle and determine the parties’ conflicting

claims to the property and to obtain a declaration of the interest

of each party.” (City of Santa Maria v. Adam (2012)

211 Cal.App.4th 266, 298; see § 761.020.) To prevail on a cause of

action for quiet title, a plaintiff must “demonstrate paramount

title.” (Mendoza v. JPMorgan Chase Bank, N.A. (2016)

6 Cal.App.5th 802, 821.) The trial court ruled that there were no

triable issues of material fact and that Deutsche Bank was

entitled to judgment on the quiet title cause of action as a matter

of law. The trial court did not err.

Deutsche Bank argued Brown acquired her interest in the

property subject to the Washington Mutual-Zive deed of trust,

which was recorded nine months before the grant deed to Brown.

Deutsche Bank also argued Brown had actual notice of the

Washington Mutual-Zive deed of trust because the Zive-Brown

deed of trust mentioned the Washington Mutual-Zive loan. In

support of those arguments, Deutsche Bank submitted the

17

Washington Mutual-Zive deed of trust, the grant deed to Brown,

and the Zive-Brown deed of trust.10

Deutsche Bank also submitted evidence it owned the

Washington Mutual-Zive note and was authorized to enforce the

Washington Mutual-Zive deed of trust. Benight stated that SPS

was the authorized loan servicer for Deutsche Bank as trustee for

the Trust and that SPS was “in possession of the collateral file”

for the Washington Mutual-Zive loan.11 Benight stated SPS had

in its file the “original ‘wet-ink’ Note” for the Washington

Mutual-Zive loan.12 Deutsche Bank submitted the following

documents showing Deutsche Bank owned the Washington

Mutual-Zive loan as trustee for the Trust: (1) the 2006 pooling

and servicing agreement by which WaMu Asset Acceptance

Corporation conveyed a pool of mortgage loans to the Trust;

(2) the 2008 order of the Office of Thrift Supervision appointing

the FDIC as receiver of Washington Mutual; and (3) the 2008

purchase and assumption agreement by which JPMorgan Chase

purchased Washington Mutual’s assets and assumed “all

10 As discussed, the trial court properly took judicial notice of

the recorded grant deed and the deeds of trust.

11 Brown did not object to these statements.

12 Brown objected to this statement on the grounds that

Benight lacked personal knowledge to make it and that the

statement was inadmissible hearsay. Because Benight had

personal knowledge of the contents of SPS’s files and the note

was not offered for the truth of its contents, the trial court did not

err in overruling these objections.

18

mortgage servicing rights and obligations.”13 From Benight’s

testimony SPS (the servicer for Deutsche Bank as trustee for the

Trust) possessed the file for the Washington Mutual-Zive loan, it

was a reasonable inference that loan was one of the loans

transferred to the Trust. And the documents showed JPMorgan

Chase owned the assets formerly owned by Washington Mutual

(including the Washington-Mutual Zive loan). With this

evidence, Deutsche Bank met its initial burden to show Brown

did not have superior title to Deutsche Bank.

Brown argues Deutsche Bank did not have authority to

enforce the Washington Mutual-Zive deed of trust because the

assignment of that deed of trust to the Trust was void. Brown

contends that the pooling and servicing agreement required

assets to be transferred to the Trust by May 1, 2006 and that the

assignment of the Washington Mutual-Zive deed of trust to the

Trust was not recorded until 2009, “a significant violation of the

Cut-Off date” of the pooling and servicing agreement. Brown also

argues there was no evidence the Washington Mutual-Zive note

was transferred to the Trust before the cutoff date. She contends

Deutsche Bank did not show that Cynthia Riley, who endorsed

the Washington Mutual-Zive note as vice president of

Washington Mutual, did so before the May 2006 cutoff date or

13 As discussed, the pooling and servicing agreement was

admissible for a non-hearsay purpose, and the Office of Thrift

Supervision order and purchase and assumption agreement were

subject to judicial notice. We also take judicial notice of an

assignment of the Washington Mutual-Zive deed of trust by

JPMorgan Chase to Deutsche Bank as trustee for the Trust,

recorded in June 2009, which Deutsche Bank submitted in

connection with its motion for judgment on the pleadings. (See

Evid. Code, §§ 452, subds. (c), (h), 459.)

19

that Riley held the position of vice president of Washington

Mutual in May 2006.

But even if Washington Mutual violated the pooling and

servicing agreement by transferring the Washington Mutual-Zive

deed of trust to the Trust after the cut-off date, the assignment

would be voidable by the Trust’s beneficiary, but not void.

Yvanova, supra, 62 Cal.4th 919, cited by Brown, does not support

her argument. In Yvanova the Supreme Court held “a home loan

borrower has standing to claim a nonjudicial foreclosure was

wrongful because an assignment by which the foreclosing party

purportedly took a beneficial interest in the deed of trust was not

merely voidable but void, depriving the foreclosing party of any

legitimate authority to order a trustee’s sale.” (Id. at pp. 942-

943.) Like Brown, the plaintiff in Yvanova argued the

assignment of a deed of trust to a securitized trust was void

because it occurred after the trust’s closing date. (Id. at p. 925.)

The Supreme Court in Yvanova, however, declined to address

“whether a postclosing date transfer into a . . . securitized trust is

void or merely voidable.” (Id. at p. 931.)

Since Yvanova, California courts have overwhelmingly

concluded that a postclosing assignment of a loan in violation of a

pooling and servicing agreement renders the assignment

voidable, not void, and that a borrower does not have standing to

challenge the assignment. (See, e.g., Kalnoki v. First American

Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43

[“Because any alleged irregularities in the securitization process

are merely voidable at the securitized trust beneficiary’s behest,”

borrowers “lack standing to challenge the Assignment on such

grounds.”]; Mendoza v. JPMorgan Chase Bank, N.A., supra,

6 Cal.App.5th at p. 815 [assignments that “allegedly violate

20

PSA’s and federal law are voidable rather than void, and as a

result, borrowers do not have standing to challenge late transfers

or other defects in the securitization process”]; Yhudai v. IMPAC

Funding Corp. (2016) 1 Cal.App.5th 1252, 1259 [“a postclosing

assignment of a loan to an investment trust that violates the

terms of the trust renders the assignment voidable, not void”];

Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th

808, 815 [an “untimely assignment to a securitized trust made

after the trust’s closing date is . . . merely voidable”].)

In the face of this authority, Brown relies on a single,

decade-old case that reached a different conclusion. In Glaski v.

Bank of America (2013) 218 Cal.App.4th 1079 the court held an

assignment that occurred after the closing date of a pooling and

servicing agreement was void. (Id. at p. 1097.) The court in

Glaski reached that conclusion by relying on an unpublished New

York trial court decision, Wells Fargo Bank, N.A. v. Erobobo

(N.Y.Sup.Ct., Apr. 29, 2013, No. 31648/2009) 2013 WL 1831799

(Erobobo I), which a New York appellate court later reversed.

(See Wells Fargo Bank, N.A. v. Erobobo (N.Y.App.Div. 2015)

127 A.D.3d 1176, 1178 [9 N.Y.S.3d 312] (Erobobo II); see

Kalnoki v. First American Trustee Servicing Solutions, LLC,

supra, 8 Cal.App.5th at p. 43 [“The trial court decision upon

which Glaski relied has also since been overturned.”].) The New

York appellate court held a “mortgagor whose loan is owned by a

trust . . . does not have standing to challenge the plaintiff’s

possession or status as assignee of the note and mortgage based

on purported noncompliance with certain provisions of the

[pooling and servicing agreement].” (Erobobo II, at p. 1178.)

Federal courts have uniformly rejected the reasoning of Erobobo I

(see Yhudai v. IMPAC Funding Corp., supra, 1 Cal.App.5th at

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p. 1259 [Erobobo I “has not only been reversed, but soundly and

overwhelmingly rejected”]), and California courts have

consistently rejected the holding in Glaski (see Mendoza v.

JPMorgan Chase Bank, N.A., supra, 6 Cal.App.5th at p. 814

[“We can find no state or federal cases to support the Glaski

analysis and will follow the federal lead in rejecting this minority

holding on the issue presented in this case.”]).14

In her reply brief Brown attempts to distinguish the

decisions rejecting Glaski by arguing those cases “all involved

trusts formed under New York law” and suggesting “the law of

California should apply.” But Brown provides no authority

suggesting a late assignment would be void rather than voidable

under California law or Delaware law, which governs the pooling

and servicing agreement according to its choice of law provision.

Therefore, she has forfeited the argument. (See Mireskandari v.

Gallagher (2020) 59 Cal.App.5th 346, 371 [plaintiff forfeited an

argument by not providing “any legal argument or citation to

authority”]; Ewald v. Nationstar Mortgage, LLC (2017)

14 Brown states Glaski was “cited by our Supreme Court in

Yvanova with approval on the issue of standing.” It is true the

Supreme Court agreed with the Glaski court’s “view that ‘a

borrower can challenge an assignment of his or her note and deed

of trust if the defect asserted would void the assignment’ not

merely render it voidable.” (Yvanova, supra, 62 Cal.4th at

p. 931.) As stated, however, the Supreme Court in Yvanova

“express[ed] no opinion” on “the question of whether a postclosing

date transfer into a New York securitized trust is void or merely

voidable.” (Ibid.)

22

13 Cal.App.5th 947, 948 [“failure to provide legal authorities to

support arguments forfeits contentions of error”].)15

Brown also relies on Sciarratta v. U.S. Bank National Assn.

(2016) 247 Cal.App.4th 552, but that case is distinguishable. In

Sciarratta the original lender, after assigning a promissory note

and deed of trust to a bank, purported to assign the same note

and deed of trust to a second bank seven months later, and the

second bank foreclosed on the deed of trust. (Id. at pp. 558, 563.)

The court concluded that, because the original lender assigned

“‘all beneficial interest’” in the note and deed of trust to the first

bank, it “had nothing to assign” to the second bank. (Id. at

p. 563.) Therefore, the court held, the purported assignment to

the second bank was void. (Id. at p. 564.) Brown argues that

Washington Mutual transferred the Washington Mutual-Zive

deed of trust to the Trust after the Trust’s cut-off date, not that

15 Brown states the Trust is a Real Estate Mortgage

Investment Conduit (REMIC) Trust and, citing Glaski, claims

pooling and servicing agreements for REMIC trusts require deeds

of trust to be transferred before a closing date “to maintain

REMIC tax status.” As discussed, courts have rejected the Glaski

court’s reasoning, including its reliance on tax laws governing

REMIC trusts. (See, e.g., Mendoza v. JPMorgan Chase Bank,

N.A., supra, 6 Cal.App.5th at p. 819 [“The tax implications of

securitization simply do not render a voidable transaction void.”];

Hard v. Bank of New York Mellon (E.D.Cal., Apr. 10, 2018,

No. 2:14-cv-01948-TLN-CMK) 2018 WL 1726637, p. 4 [rejecting

the plaintiff’s argument “the late assignment is void because the

purported late assignment is a ‘prohibited transaction’ under the

Internal Revenue Code”].)

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Washington Mutual had no deed of trust to assign. If Brown’s

claim were true, the assignment would be voidable, not void.16

C. The Trial Court Did Not Abuse Its Discretion in

Denying Brown’s Request for a Continuance

Brown argues the trial court abused its discretion in

denying her request to continue the hearing on Deutsche Bank’s

motion for summary judgment to allow Brown to take Deutsche

Bank’s deposition (for the third time) and to obtain more

documents. Brown contends she needed the additional discovery

to allow her “to produce evidence that showed Deutsche Bank

had not transferred/assigned the note and trust deed before the

Cut-Off Date.”

Section 437c, subdivision (h), provides: “If it appears from

the affidavits submitted in opposition to a motion for summary

judgment or summary adjudication, or both, that facts essential

to justify opposition may exist but cannot, for reasons stated, be

presented, the court shall deny the motion, order a continuance to

permit affidavits to be obtained or discovery to be had, or make

any other order as may be just.” The declaration under

section 437c, subdivision (h), must show “‘“(1) the facts to be

obtained are essential to opposing the motion; (2) there is reason

to believe such facts may exist; and (3) the reasons why

additional time is needed to obtain these facts.”’” (Jade

Fashion & Co., Inc. v. Harkham Industries, Inc. (2014)

229 Cal.App.4th 635, 656; see Cooksey v. Alexakis (2004)

16 Because we conclude Deutsche Bank was authorized to

enforce the Washington Mutual-Zive deed of trust as trustee of

the Trust, we do not address whether Deutsche Bank could

enforce the deed of trust as holder of the original promissory note.

24

123 Cal.App.4th 246, 254.) “The statute mandates a continuance

of a summary judgment hearing upon a good faith showing by

affidavit that additional time is needed to obtain facts essential

to justify opposition to the motion.” (Cooksey, at pp. 253-254.)

We review the court’s decision whether to grant a continuance for

an abuse of discretion. (Braganza v. Albertson’s LLC (2021)

67 Cal.App.5th 144, 152; Jade Fashion, at p. 643.)

The trial court did not abuse its discretion in denying

Brown’s request for a continuance. Counsel for Brown’s

declaration did not show that the facts Brown sought to obtain

were essential to opposing the motion. To the contrary, as

discussed, the evidence Brown sought—that Washington Mutual

did not endorse the Washington Mutual-Zive note and assign the

Washington Mutual-Zive deed of trust to the Trust until after the

Trust’s May 1, 2006 cutoff date—would show only the assignment

was voidable, not void. Because Brown could not defeat summary

judgment by showing the assignment was voidable, the discovery

was not essential to opposing the motion.

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DISPOSITION

The judgment is affirmed. Deutsche Bank is to recover its

costs on appeal.

SEGAL, Acting P. J.

We concur:

FEUER, J.

STONE, J.

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