Judge: Stephen Morgan, Case: 22AVUD00029, Date: 2022-08-08 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.



Case Number: 22AVUD00029    Hearing Date: August 8, 2022    Dept: A14

Background

 

This is an unlawful detainer (“UD”) action. Plaintiff Federal Home Loan Mortgage Corporation, as trustee for Freddie Mac Seasoned Credit Risk Transfer Trust, Series 2017-2, as owner of the Related Mortgage Loan, its assignees and/or successors, (“Plaintiff”) alleges that it is entitled to possession and is the owner of record of a parcel of real property located at 1720 West Imperial Avenue, Lancaster, CA 93534 (“the Property”). Ownership was obtained via a foreclosure sale held pursuant to the power under the Deed of Trust executed by Defendants Brendem Plong and Mareine Plong (“Defendant” and collectively “Defendants”) or their predecessors. Defendants are the former trustor or holdover occupant of the former trustor.

 

On January 14, 2022, Plaintiff filed its Complaint alleging one cause of action for unlawful detainer following foreclosure sale (based on Cal. Code Civ. Proc. § 1161a.

 

On February 03, 2022, Defendant filed her Answer.

 

On March 08, 2022, Brendem Plong defaulted.

 

On May 27, 2022, the case was removed to federal court by Defendant. The case was stayed.

 

On June 14, 2022, the case was remanded back to state court by Judge Virginia A. Phillips and stay was lifted.

 

On July 12, 2022, Plaintiff’s Motion for Summary Judgment was Granted.

 

On July 25, 2022, Judgment was entered in favor of Plaintiff and the corresponding order was signed by Judge Stephen Morgan and filed.

 

On July 27, 2022, Defendant filed her Motion to Set Aside and Vacate an Unlawful Detainer Judgment as Void for Fraud Upon the Court.

 

On August 03, 2022, Plaintiff filed its Opposition.

 

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Analysis

 

Defendant cites to federal case law and federal rules of civil procedure. This is a state case in the State of California and, therefore, the Court is bound by California law.

 

The substance of Defendant’s motion does not request that the Court vacate Defendant Brandem Plong’s default.

 

The gravamen of Defendant’s motion is that Defendant has found newly discovered evidence that shows (1) that Plaintiff is not the real party in interest and is not an injured party, and (2) makes a different judgment possible. Based on this argument, Defendant asks the Court void its previous judgment based on the following:

 

 

(See Motion 3:1-15.)

 

Plaintiff presents that they are the correct party as they are the beneficiary of the trust recorded against the Property and initiated foreclosure against the Property because the loan was in arrears. The trustee at the foreclosure sale was Quality Loan Service Corp. Plaintiff presents that it was the successful bidder at the Trustee’s Sale by bidding the amount due under the deed of trust, and therefore became the owner of the Property.

 

The evidence presented by both parties supports that Plaintiff is the correct party. Defendant, in her moving papers, has attached a Corporate Assignment of Deed of Trust which states: “For Value received, NATIONSTAR MORTGAGE, LLC hereby grants, assigns and transfers to FEDERAL HOME LOAN MORTGAGE CORPORATION, AS TRUSTEE FOR FREDDIE MAC SEASONED CREDIT RISK TRANSFER TRUST, SERIES 2017-2, AS OWNER OF RELATED MORTGAGE LOAN at 8200 JONES BRANCH DRIVE, MCLEAN, VA 22102-3110 all interest under that certain Deed of Trust dated 08/06/2007, in the amount of $374,550.00, executed by BRENDEM BLONG, AND MAREINE PLONG, HUSBAND AND WIFE AS JOINT TENANTS to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR COUNTRYWIDE HOMES LOANS, INC. and Recorded: 08/16/2007 as Instrument No.: 20071921645 in the County of Los Angeles, State of California.” Corporate Assignment of Deed of Trust is dated December 17, 2018 and signed by Mohamed Hameed, Vice President of Nationstar Mortgage, LLC.” Further, the Trustee’s Deed Upon Sale attached to the Opposition states: “QUALITY LOAN SERVICE CORPORATION as Trustee, (whereas so designated in the Deed of Trust hereunder more particularly described or as duly appointed Trustee) does hereby GRANT and CONVEY to Federal Home Loan Mortgage Corporation, as trustee for Freddie Mac Seasoned Credit Risk Transfer Trust, Series 2017-2, as owner of the Related Mortgage Loan (herein called Grantee) but without covenant or warranty, expressed or implied, all right title and interest conveyed to and now held by it as Trustee under the Deed of Trust in and to the property situated in the county of LOS ANGELES, State of California, described as follows: LOT 3 OF TRACT MAP 52655, IN THE CITY OF LANCASTER, COUNTY OF LOS ANGELES, ST A TE OF CALIFORNIA, AS PER MAP FILED IN BOOK 1320, PAGES 96 THROUGH 100 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAJD COUNTY. This conveyance is made in compliance with the terms and provisions of the Deed of Trust executed by Brendem Plong, and Mareine Plong, husband and wife as joint tenants, as trustor, dated 8/612007, and recorded on 8/16/2007 as instrument number 20071921645 and modified as per Modification Agreement recorded 12/22/2015 as Instrument No. 20151609007 and modified as per Modification Agreement recorded 1/24/2012 as Instrument No. 20120124047 of Official Records in the office of the Recorder of LOS ANGELES, California, under the authority and powers vested in the Trustee designated in the Deed of Trust or as the duly appointed trustee, default having occurred under the Deed of Trust pursuant to the Notice of Breach and Election to Sell under the Deed of Trust recorded on l/10/2019, instrument no 20190028472, Book xxx, Page xxx, of Official records. The Trustee of record at the relevant time having complied with all applicable statutory requirements of the State of California and performed all duties required by the Deed of Trust including sending a Notice of Default and Election to Sell within ten/thirty days after its recording and a Notice of Sale at least twenty days prior to the Sale Date by certified mail, postage pre-paid to each person entitled to notice in compliance with California Civil Code 2924b. Default occurred as set forth in a Notice of Breach and Election to Sell which was recorded in the office of the Recorder of said County.”

 

The issue of whether the foreclosure was proper has already been addressed by this Court in its Statement of Decision on the Motion for Summary Judgment:

 

 

Regarding the judicially noticed documents, recent case law states: 

 

"[S]ections 2924 through 2924k provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust. The purposes of this comprehensive scheme are threefold: (1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser." (Moeller v. Lien (1994) 25 Cal.App.4th 822, 830 [30 Cal. Rptr. 2d 777], citing 4 Miller & Starr, Cal. Real Estate (2d ed. 1989) §§ 9:121, p. 388, 9:154, pp. 505, 516; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 503 [108 Cal. Rptr. 2d 10].)  

 

"A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender." (Moeller v. Lien, supra, 25 Cal.App.4th at p. 831, citing Smith v. Allen (1968) 68 Cal.2d 93, 96 [65 Cal. Rptr. 153, 436 P.2d 65].) As a general rule, a trustee's sale is complete upon acceptance of the final bid. (Angell v. Superior Court, supra, 73 Cal.App.4th at p. 701, citing Moeller v. Lien, supra, 25 Cal.App.4th at p. 831. accord, Ballengee v. Sadlier (1986) 179 Cal. App. 3d 1, 4–5 [224 Cal. Rptr. 301] [trustee's sale declaration signals completion]; see also § 2924h, subd. (c); and see generally 4 Miller & Starr, Cal. Real Estate, supra, Deeds of Trust and Mortgages, § 10:206, p. 628.) But "the general rule is not applicable when a notice defect renders the sale void." (Angell v. Superior Court, supra, 73 Cal.App.4th at p. 701, citing Little v. CFS Service Corp. (1987) 188 Cal. App. 3d 1354, 1362 [233 Cal. Rptr. 923].) 

 

"The purchaser at a foreclosure sale takes title by a trustee's deed." (Moeller v. Lien, supra, 25 Cal.App.4th at p. 831.) . . . 

 

"If the trustee's deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser. [Citations.]" (Moeller v. Lien, supra, 25 Cal.App.4th at p. 831. see generally 4 Miller & Starr, Cal. Real Estate, supra, Deeds of Trust and Mortgages, § 10:211, pp. 647–652; 2 Bernhardt, Cal. Mortgage and Deed of Trust Practice, supra, § 7:59, pp. 476–477.) 

 

"The conclusive presumption precludes an attack by the trustor on the trustee's sale to a bona fide purchaser even where the trustee wrongfully rejected a proper tender of reinstatement by the trustor." (Moeller v. Lien, supra, 25 Cal.App.4th at pp. 831–832.) A bona fide purchaser is one who pays value for the property without notice of any adverse interest or of any irregularity in the sale proceedings. (Hochstein v. Romero (1990) 219 Cal. App. 3d 447, 451 [268 Cal. Rptr. 202]. see generally 2 Bernhardt, Cal. Mortgage and Deed of Trust Practice, supra, § 7.61, p. 478.) There is authority suggesting that an experienced foreclosure bidder may not qualify as a bona fide purchaser. (See Estate of Yates (1994) 25 Cal.App.4th 511, 523 [32 Cal. Rptr. 2d 53].) 

 

Here, Plaintiff was a purchaser at a trustee’s sale. The documents create a presumption that the sale has been conducted regularly and property.  

 

(MSJ Statement of Decision, pp. 4-6.)

 

Defendant presents no newly discovered evidence that would change the Court’s previous decision.

 

Accordingly, the Motion is DENIED.

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Conclusion

 

Defendant Mareine Plong’s Motion to Set Aside and Vacate an Unlawful Detainer Judgment as Void for Fraud Upon the Court is DENIED.