Filed 10/9/15 Bank of New York Mellon v. Superior Cour t CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

BANK OF NEW YORK MELLON , as Trustee, etc. et al.
,

Petitioner s ,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY ,

Respondent;

JONATHAN LEDESMA ,

Real Party in Interest. B2 63 7 01
(Los Angeles County Super. Ct. No. BC522808 )

ORIGINAL PROCEEDINGS i n mandate. Joseph R. Kalin , Judge. Petition grant ed.
Reed Smith
, Zareh A. Jalto rossian, David C. Powell, Molly T. Zapala, and
Jamie D. Wells for Petitioner s

. No appearance for Respondent. Law Offices of Joseph De Clue and Joseph De Clue for Real Part y in Interest.

______________________________2

Petitioner s Bank of New York Mellon (BNYM) as trustee for the CWALT, Inc. Alternative Loan Trust OA2 Mortgage Pass Through Certificated, Series 2007

- OA2 ( CWALT Trust) and ReconTrust Company, N.A. (ReconTrust) s eek the reversal of an order denying their motion for summary judgment

. They argue that real party in interest Jonathan Ledesma lacks standing to bring a pre

- foreclosure action challenging the alleged irregularities in the securitization of his home loan. We agree and grant the petition.

FACTUAL AND PROCEDURAL SUMMARY In 2006, Ledesma obtained a loan secured by a deed of trust on real property located in West Hollywood. The deed of trust identifies Countrywide Bank, N.A. (Countrywide) as lender, Reco nT rust as trustee, and Mortgage E lectronic Registration Systems, Inc. (MERS) as beneficiary. Ledesma defaulted on the loan in 2008. In September 2009, ReconTrust recorded a notice of default. In November 2009, MERS recorded an assignment of the deed of trust to BNYM as trustee for the CWALT Trust

. T he assignment was dated September 14, 2009. A further corrective assignment was
recorded in 2013. ReconTrust recorded notices of trustee’s sale in 2010, 2011, and 2013, but the parties represent that no for eclosure sale has taken place

. In September 2013, Ledesma filed a complaint for declaratory relief, wrongful foreclosure, quiet title and cancelation of instruments. He alleged that the transfer of the
loan to BNYM as trustee for the CWALT Trust was sub ject to a pooling and servicing agreement, according to which the cutoff date for placing loans in the securitized trust was January 1, 2007 and the trust’s closing date was February 15, 2007

. Because the recorded assignments were dated after those date s , Ledesma a rgu ed they a re void under governing N ew York law. In January 2015, petitioners moved for summary judgment. They argued that Ledesma lacked standing to challenge the securitization of his loan, and submitted a declaration by Justin Bradley, a r epresentative of BNYM’s attorney in fact, stating that the loan had been assigned to BNYM on or before February 14, 2007. The trial court3

denied the motion . It followed Glaski v. Bank of America (2013) 218 Cal.App.4th 1079 ( Glaski ) in conclud ing that Led esma had standing to challenge the assignment of his loan
as void. The court su stained Ledesma’s objection to Bradley’s statement as to the 2007 assignment as lack ing foundation and con clud ed that the date on the recorded assignment
raise d an issue of fac t regarding its timeliness

.

DISCUSSION We determine de novo whether a moving party is entitled to summary judgment as a matter of law. ( Conroy v. Regents of University of Cal ifornia (2009) 45 Cal.4th 1244, 1250.)
S ecuritization occurs when “ 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. T he 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 Po oling and Servicing Agreement (‘PSA’ ). ” ( BlackRock Financial Management Inc. v. Segregated Account of Ambac Assur. Corp

. (2d Cir. 2012) 673 F.3d 169 , 173.) If it compl ies with certain requirements set in t he
Internal Revenue Code , the s ecuritization trust qualif ies as a tax

- exempt real estate mortgage investment conduit (REMIC ). ( 26 U.S.C. §§ 860A

- G .)
Ledesma proceeds on the theory that the assig nment of his loan to the CWALT
T rust after the trust’s closing date is void because it affe cts the trust’s REMIC status , and therefore BNYM as trustee for the trust has no right to foreclose. He relies on Glaski
, supra , 218 Cal.App.4th 1079 , the only California case supporting that theory

. 1

1 Glaski
, supra , 218 Cal.App.4th 1079 has been criticized in other cases (see Kan v. Guild Mortgage Company (2014) 230 Cal.App.4th 736, 744 ( K an )), and t he California Supreme Court has granted review in several cases that have disagreed with it. ( See Yvanova v. New Century Mortgage Corp. (2014) 226 Cal.App.4th 495, review granted4

Glaski
, supra , 218 Cal.App.4th 1079 is distinguishab le because it i s a wrongful foreclosure case. The consensus in California is that “ a preforeclosure, preemptive action is not authorized by the nonjudicial foreclosure statutes because it creates an additional requirement that a foreclosing entity first d emonstrate in court that it is entitled to
foreclose .” ( Kan , supra , 230 Cal.App.4th at p. 743, citing Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 51 2

– 513.) Ledesma relies on the Homeowners Bill of Rights, which in 2012 amended Civil Code section 2924 to provide in relevant part that “[n] o entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, t he original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” (Civ. Code, § 2924, subd. (a)(6).) But nothing in that provision gives a borrower the right to preemptively
challen ge the foreclosing entity’s beneficiary status; nor does a violation of section 2924 give a borrower a right to enjoin a trustee’s sale under Civil Code section s 2924.12 and 2924.19, which allow temporary injunctions for violations of specified provisions

. Even assumi ng that a preforeclosure action such as this one is authorized, the

reason ing of Glaski
, supra , 218 Cal.App.4th 1079 has been discredited. Glaski held that a borrower has standing to challenge the assignment of a loan to a securitized trust in
violation of a PSA to which the borrower is neither a party nor a beneficiary because,
under governing New York law, an assignment after the closing date of the trust is void. ( Id . at p p . 109 4

– 109 6.) Its holding followed Wells Fargo Bank, N.A. v. Erob obo (2013) 39 Misc.3d 1220(A) ( Erobobo I ), which stated: ‘ “ U nder New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7

– 2.4. Therefore, the acceptance of the note and mortgage by the truste e after the date

Aug. 27, 2014, S218973; Keshtgar v. U.S. Bank, N.A. (2014) 226 Ca l.App.4th 1201, review granted Oct. 1, 2014, S220012; Mendoza v. JPMorgan Chase Bank, N.A. (2014) 228 Cal.App.4th 1020, review granted Nov. 12, 2014, S220675; Boyce v. T.D. Service Co. (2015) 235 Cal.App.4th 429, review granted July 15, 2015, S226267.)5

the trust closed, would be void. [Citations.] ’ ” ( Glaski , at p. 1097.) Erobobo I has since
been reversed

. ( We lls Fargo Bank, N.A. v. Erobobo (2015) 127 A.D.3d 1176 ( Erobobo
II )

. ) In reversing Erobobo I , the Appellate Division of the Su preme Court of New York
he ld that a borrower whose loan was assigned to a securitized trust has no standing to challenge the assignee’s status “ based on purported noncompliance with certain provisions of the PSA .” ( Erobobo I I , at p. 1178, citing Rajamin v

. Deutsche Bank Nat ’ l.
Trust Co. ( 2d Cir. 2014) 757 F.3d 79, 90 ( Rajamin ) [holding that, under weight of New York authority
, assignments in contravention of PSA are voidable at the trust beneficiary ’s election , not void ab initio ].)
Glaski
, supra , 218 Ca l.App.4th 1079 also reasoned that treating the attempted assignment as void rather than voidable “ is justified because it protects the [trust]
beneficiaries

. . . from the potential adverse tax consequence of the trust losing its status
as a REMIC trust un der the Internal Revenue Code .” ( Id . at p. 1097.) It is doubtful that a borrower’s challenge to the securitization process protect s the trust beneficiaries, whose
interests are adverse to those of the borrower

. ( Rajamin , supra , 757 F.3d at p. 90 ; see al so Bank of America Nat. Assn

. v. Bassman FBT, L.L.C. ( I ll . App. 2012) 981 N.E.2d 1, 13 [“ New York legislature could [not] have intended to allow a debtor in a commercial transaction to invoke the provisions of a trust to which it is a stranger in order to frust rate the collection of the debt ” ].)
W hether or not improper securitization invalidates the trust’s tax

- free status, federal district courts have concluded that it does not give rise to a private right of action by the borrower under the Internal Rev enue Code. (See
, e.g. , Martin v. Litton Loan Servicing LP ( E.D.Cal., Mar. 12, 2014 , No. 2:12

- cv

- 970

- MCE

- EFB PS ), 2014 WL
977507 , at *11; Kloss v. R BS Citizens, N.A. (E.D.Mich.
, 2014 ) , 99 6 F.Supp.2d 574 ; Oliver v. Delta Fin. Liquidating Trust (D.Or. , Aug. 27, 2012, No. 6:12

- cv

- 00869

- AA ) , 2012 WL 3704954, at *2 , f n. 8; Obal v. Deutsche Bank Nat ’l . Trust Co

. (S.D.N.Y. , Feb. 13, 2015, No. 14 C iv . 2463 ) , 2015 WL 631404, at *4, reconsideration denied sub6

nom. , Obal v. Deutsche Bank Nat ’l . Trust Co. (S.D.N.Y. Jun e 2 5 , 2015, No. 14 C iv

. 2463 ) , 2015 WL 3999455. ) 2 Ledesma’s additional arguments

— that a borrower need not show tender or prejudice

— are premised on the assumption that improper securitization renders an assignment void under Glaski
, supra , 218 Cal.App.4th 1079

. Since we reject that assumption, we do not consider those arguments. Nor do we consider Ledesma’s evidentiary objections to petitioners’ documentary evidence regarding the timeliness of the assignment or his claim that respondents did not comply w ith a discovery order

. Irrespective of when Ledesma’s loan was assigned to the CWALT Trust, the assignment is not void under New York law and Ledesma lacks standing to challenge it. Petitioners

are , therefore, entitled to summary judgment as a matter of law.

DISPOSITION The petition is grant ed

. The trial court is directed to vacate its order denying petitioners’ motion for summary judgment and to enter a new order granting the motion. Petitioners are entitled to their costs in this writ proceeding.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

WILLHITE, J. MANELLA, J.

2 Unpublished federal cases may be cited as persuasive authority . ( Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 576, fn. 8.)