Filed 8/8/16 Keshtgar v. U.S. Bank CA2/6

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 SIX

SAEED KESHTGAR,

 Plaintiff and Appellant,

v.

U.S. BANK, N.A., as Trustee, etc.,

 Defendant and Respondent.

2d Civil No. B246193

(Super. Ct. No. CV120282A)

(San Luis Obispo County)

OPINION ON REMAND

FROM SUPREME COURT

Plaintiff obtained a loan secured by a deed of trust on real property. The 

loan is in default. He brought an action to prevent the bank from initiating foreclosure 

proceedings. He claimed that the bank had no authority to initiate foreclosure because an 

assignment to the bank was either void or did not take place. The trial court sustained the 

bank's demurrer without leave to amend. We affirmed the ensuing judgment. (Keshtgar 

v. U.S. Bank, N.A. (2014) 226 Cal.App.4th 1201.) Our Supreme Court granted review 

(Oct. 1, 2014, S220012). Our Supreme Court thereafter remanded the matter to us with 

instructions to vacate our decision and reconsider the matter in light of Yvanova v. New 

Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova). We have reconsidered the 

matter in light of Yvanova and have determined Yvanova has no bearing on this case. 
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Yvanova applies only to actions alleging wrongful foreclosure, not actions to preempt 

foreclosure. We again affirm.

FACTS

In May 2005, plaintiff Saeed Keshtgar executed a note for $910,000 

secured by a deed of trust on real property, recorded on June 10, 2005. The deed of trust 

named Resource Lenders, Inc., as the lender; Cuesta Title, as the trustee; and Mortgage 

Electronic Registration Systems, Inc. (MERS), as the beneficiary acting as nominee for 

the lender, its successors and assigns.

On October 19, 2011, the deed of trust was assigned to U.S. Bank N.A., as 

trustee for the certificate holders of Harborview Mortgage Loan Trust (U.S. Bank). The 

assignment was executed by Alice Rowe, a MERS assistant secretary, and recorded on 

November 4, 2011.

Keshtgar's first amended complaint alleges on information and belief that 

Rowe is not an assistant secretary, employee or agent of MERS; not an employee or 

agent of Resource Lenders; has no written authority to convey any real property that 

MERS or Resource Lenders may have; and that neither the board of directors of MERS 

or Resource Lenders approved the conveyance.

The complaint also alleges U.S. Bank did not receive an assignment of the 

note, was never in possession of the note, never acquired the rights of nor is a successor 

to MERS or Resource Lenders.

The complaint further alleges on information and belief that the mortgage 

assets held in trust by U.S. Bank are governed by a pooling and service agreement (PSA); 

that the PSA requires the trust assets be treated as a Real Estate Mortgage Investment 

Conduit (REMIC); that any mortgage transferred to a REMIC more than three months 

after its closing date would not be a qualified transaction, would be taxed at 100 percent 

and would violate the PSA; and that the note and deed of trust at issue here were 

transferred to the REMIC more than six years after its closing date.

The complaint requests that the assignment of the deed of trust be declared 

void ab initio and cancelled; that the trial court declare that U.S. Bank may not exercise 
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any rights under the deed of trust, including the power of sale; and that the court quiet 

title in Keshtgar and declare U.S. Bank has no right, title or interest in the property.

DISCUSSION

I.

The function of a demurrer is to test whether, as a matter of law, the facts 

alleged in the complaint state a cause of action under any legal theory. (Intengan v. BAC 

Home Loans Servicing, LP (2013) 214 Cal.App.4th 1047, 1052.) We assume the truth of 

all facts properly pleaded, as well as facts of which the trial court properly took judicial 

notice. (Ibid.) But we do not assume the truth of contentions, deductions or conclusions 

of law. (Ibid.) Our review of the court's decision is de novo. (Ibid.) Where there is no 

reasonable possibility that plaintiff can cure a defect in a complaint with an amendment, 

an order sustaining a demurrer without leave to amend is not an abuse of discretion. 

(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 273, 274.)

II.

Stripped to its essence, Keshtgar's complaint alleges nothing more than the 

assignment between MERS and U.S. Bank did not occur or is void. Significantly, neither 

MERS nor U.S. Bank, the parties to the assignment, are contesting its validity. Keshtgar 

admits in his opening brief that the loan has been "non-performing" since at least October 

2011. 

In Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 

borrower brought a preemptive action to forestall foreclosure. The borrower's complaint 

alleged that MERS had no authority to initiate foreclosure proceedings because the owner 

of the note did not authorize MERS to proceed. The loan servicer demurred to the 

complaint. The trial court sustained the demurrer without leave to amend and entered 

judgment for defendants.

The Court of Appeal affirmed. The court noted that California's nonjudicial 

foreclosure statutes (Civ. Code, §§ 2924-2924k) provide a comprehensive framework for 

the regulation of nonjudicial foreclosures. (Gomes v. Countrywide Home Loans, Inc., 

supra, 192 Cal.App.4th at p. 1154.) One purpose of this comprehensive scheme is to 
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provide a beneficiary with a quick, inexpensive and efficient remedy against a defaulting 

borrower. (Ibid.) Nowhere does the scheme provide for a judicial action to determine

whether the person initiating the foreclosure process is authorized. (Id. at p. 1155.) 

There is no ground for implying such an action. (Ibid.) Recognition of such a right 

would "fundamentally undermine the nonjudicial nature of the process and introduce the 

possibility of lawsuits filed solely for the purpose of delaying valid foreclosures." (Ibid.)

Given that Keshtgar acknowledges he has been in default since 2011, there 

appears to be no other purpose to the instant action than to delay a valid foreclosure.

Keshtgar argues that in Gomes the plaintiff had no factual basis to allege

MERS lacked authority to initiate foreclosure. Keshtgar claims his complaint avoids this

defect by alleging "a factual basis" on information and belief. It is true that in 

distinguishing federal trial court cases Gomes states: "It is also significant that in each of

these cases, the plaintiff's complaint identified a specific factual basis for alleging that 

the foreclosure was not initiated by the correct party. Gomes has not asserted any factual 

basis to suspect that MERS lacks authority to proceed with the foreclosure." (Gomes v. 

Countrywide Home Loans, Inc., supra, 192 Cal.App.4th at p. 1156.) Gomes holds that 

the California statutory scheme allows no preemptive action to challenge the authority of 

the person initiating foreclosure. No allegation of fact, no matter how specific, is 

sufficient to overcome the absence of a cause of action.

The facts alleged in Jenkins v. JP Morgan Chase Bank, N.A. (2013) 

216 Cal.App.4th 497 are similar to those alleged here. Plaintiff alleged the trustee of a 

securitized investment trust had no authority to initiate foreclosure on a trust deed 

because "the promissory note was not transferred into the investment trust with a 

complete and unbroken chain of endorsements and transfers . . . ." (Id. at p. 510.) The 

trial court sustained the defendant's demurrer without leave to amend. The Court of 

Appeal affirmed, citing Gomes for the proposition that California's comprehensive 

nonjudicial foreclosure scheme does not provide for a preemptive action to challenge the 

authority of the party initiating foreclosure. (Jenkins at p. 513.)
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In Yvanova v. New Century Mortgage Corp., supra, 62 Cal.4th 919, our 

Supreme Court held that in an action for wrongful foreclosure, the borrower has standing 

to challenge the assignment of the note and trust deed on the basis that the assignment is 

void. (Id. at pp. 942-943.) The court expressly limited its holding to a post-foreclosure 

action for wrongful foreclosure. The court stated, "We do not hold or suggest that a 

borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit 

questioning a foreclosing party's right to proceed." (Id. at p. 924.) The court disapproved 

of Jenkins, but only insofar as it can be interpreted to apply to wrongful foreclosure 

actions. The court stated, "This aspect of Jenkins, disallowing the use of a lawsuit to 

preempt a nonjudicial foreclosure, is not within the scope of our review, which is limited 

to a borrower's standing to challenge an assignment in an action seeking remedies for 

wrongful foreclosure. . . . We do not address the distinct question of whether, or under 

what circumstances, a borrower may bring an action for injunctive or declaratory relief to 

prevent a foreclosure sale from going forward." (Yvanova. at p. 934.)

In the instant case Keshtgar's complaint does not allege wrongful 

foreclosure. Instead, it is an action to preempt foreclosure by alleging the party initiating 

foreclosure lacks the authority to do so. Gomes and Jenkins state valid reasons why such 

a preemptive action is not allowed. Nothing in Yvanova affects the holding in those 

cases. In fact, Yvanova is quite careful to limit its holding to actions for wrongful 

foreclosure.

Keshtgar's reliance on Barroso v. Owen Loan Servicing, LLC (2012) 

208 Cal.App.4th 1001, 1016, is misplaced. The complaint in Barroso was filed after 

foreclosure and did not challenge the authority of the loan servicer to initiate foreclosure 

proceedings. Moreover, it alleged full performance.

Keshtgar offers to amend his complaint to allege that noncompliance with 

the PSA is evidence that his loan was not transferred into the trust. That is a departure 

from his allegation that noncompliance with the PSA rendered the transfer void as a 

matter of law. Whether the transfer is alleged to be void or never made, there is no 
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preforeclosure cause of action to challenge the authority of the person initiating 

foreclosure.

The judgment is affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
Charles S. Crandall, Judge

Superior Court County of San Luis Obispo

______________________________

Dennis Howard Moore for Plaintiff and Appellant.

Reed Smith LLP, David S. Reidy, Matthew J. Brady for Defendant and 

Respondent.