Filed 6/10/14 Perry v. JP Morgan Chase Bank CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


LEIGHTON LEE PERRY,
         Plaintiff and Appellant,                                        A139655

v.                                                                       (Contra Costa County
JP MORGAN CHASE BANK, NA., et al.,                                       Super. Ct. No. MSC10-02914)
         Defendants and Respondents.


         Plaintiff Leighton Lee Perry appeals from a summary judgment entered against
him in his action against Federal National Mortgage Association (FNMA), JP Morgan
Chase Bank, N.A.1 (JP Morgan), and Quality Loan Service Corporation (QLS). Plaintiff
defaulted on a loan secured by a deed of trust against his home and brought this action to
contest the defendants’ right to initiate foreclosure proceedings. Although defendants
may be responsible for some confusion on plaintiff’s part, we conclude that authority to
commence the foreclosure was properly transferred and that plaintiff has failed to create a
triable issue over the right to proceed with the foreclosure.




1
  Chase Home Finance LLC (Chase) was named as a fourth defendant. However, JP
Morgan Chase Bank, N.A. (JP Morgan) is the successor by merger to Chase. Various
documents in the record refer to JP Morgan and Chase interchangeably. In the interest of
clarity, all references in this opinion will be to “JP Morgan,” even if the name “Chase”
appears in the particular document in question.


                                                             1
                             Factual and Procedural History
       The following undisputed facts were established in the moving and opposing
summary judgment papers.2
       In May 1988, plaintiff borrowed $130,000 from Valley Federal Savings & Loan
Association (Valley), evidenced by a promissory note secured by a deed of trust against
his Martinez home.3 The deed of trust named Valley as the lender and beneficiary, and
All Valley Financial Corporation as the trustee. As reflected in documents of which the
court took judicial notice,4 the promissory note and the beneficial rights under the deed of
trust were assigned to FNMA on October 7, 1988, by an instrument that was not recorded
until July 29, 1991. On July 9, 2009, FNMA executed a document appointing JP Morgan
as its “Attorney-in-Fact,” with authority to, among other things, execute a notice of


2
  Plaintiff’s unopposed motion for judicial notice of certain documents filed in the trial
court and discovery responses in the action is granted. Plaintiff’s supplemental motion for
judicial notice is denied.
3
  At his deposition, plaintiff was shown the original promissory note and deed of trust and
admitted to having signed both. When presented with the promissory note, he stated “yes,
it does appear to be my signature.” He now asserts, as his eighth “Issue Presented,” that
the court was wrong to hold that he had attested to the genuineness of the signature.
However, at his deposition, when asked if the signature was his, plaintiff said, “That is an
accurate representation of my signature…and it also seems really consistent in the
amount of pressure, so I wouldn’t swear that that is not a copy, but yes, it does appear to
be my signature.” When asked if a different loan document bore his signature, he stated,
“Yes. That appears to be my signature, but again with the same objection.” Plaintiff
presented no evidence that he did not sign any of these documents. The trial court
correctly observed that “[p]laintiff’s speculation that the promissory note he saw at his
deposition could be a mere copy, cunningly contrived to look like an original, or that it
could be a forged original, does not create a triable issue of fact.”
4
  In his third and tenth “Issues Presented,” plaintiff asserts that the trial court erred in
taking judicial notice of several recorded documents, including the assignment
documents. However, the court did not take judicial notice of the truth of the contents of
the documents, but properly took judicial notice of the fact that the documents were
recorded. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265-266.)
Declarations submitted in support of the summary judgment motion also attest to the
authenticity of the documents. As the trial court explained, “plaintiff’s arguments go to
the weight or legal significance of the evidence and not its admissibility.”


                                              2
default. On August 25, 2010, the note and beneficial rights under the deed of trust were
reassigned by FNMA to JP Morgan by an instrument recorded on August 30, 2010.5 By
an instrument dated September 16, 2010, and recorded on September 23, 2010, JP
Morgan replaced the original trustee and named QLS as the trustee under the deed of
trust.
         In November 2009 plaintiff defaulted on his loan.6 On January 27, 2010, plaintiff
sent a letter to JP Morgan requesting a copy of the promissory note, a written beneficiary
statement, and a copy of the deed of trust. JP Morgan originally stated it did not have
possession of the deed of trust and advised plaintiff he could obtain a copy from the
county recorder.       On June 15, 2010, QLS recorded a notice of default. The notice
identified QLS as “agent of the beneficiary” but did not identify the beneficiary. The
notice did indicate, however, that any questions should be addressed to JP Morgan and
provided a contact address and telephone number. On August 24, 2010, JP Morgan
mailed plaintiff copies of the promissory note and the deed of trust. QLS recorded a
notice of trustee sale on September 28, 2010.
         Plaintiff’s first amended complaint asserted four causes of action: (1) declaratory
relief; (2) slander of title; (3) quiet title; and (4) violation of Civil Code section 2943.7 All
defendants are named in each of the causes of action, except that QLS is not named as a
defendant in the fourth cause of action. Ultimately, all defendants moved for summary


5
  Plaintiff alleges a different chain of assignments, for which he provides no evidence, but
in all events he acknowledges that JP Morgan became the beneficiary under the deed of
trust. Some confusion undoubtedly was created by the trustees’ sale guarantee that was
issued on June 15, 2010, which listed JP Morgan as the beneficiary and QLS as the
trustee. Although the document effecting assignment to JP Morgan of the note and deed
of trust was not executed until August 25, 2010, and the document naming QLS as trustee
was not executed until September 16, 2010, JP Morgan was authorized to exercise the
rights of the beneficiary by virtue of the power of attorney that FNMA executed on July
9, 2009.
6
 Plaintiff admits that he stopped making payments “to the entitled beneficiary.” There is
no evidence that he made, or attempted to make, payments to anyone else after that date.
7
    All statutory references are to the Civil Code, unless otherwise indicated.


                                               3
judgment, which the trial court granted. Thereafter, the court entered judgment in favor of
all defendants and plaintiff timely noticed this appeal.
                                         Discussion
       In reviewing the propriety of the summary judgment we apply “the same three-
step analysis applied by the trial court: First, we identify the issues raised by the
pleadings. Second, we determine whether the movant established entitlement to summary
judgment, that is, whether the movant showed the opponent could not prevail on any
theory raised by the pleadings. Third, if the movant has met its burden, we consider
whether the opposition raised triable issues of fact.” (Hawkins v. Wilton (2006) 144
Cal.App.4th 936, 939–940.) In reviewing the tendered evidence, we may consider matters
that can be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We review a
trial court’s ruling on evidentiary objections in summary judgment proceedings for abuse
of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)

                     1. The First, Second, and Third Causes of Action.

       The trial court observed that the first three causes of action are “based on two
theories: (1) JP Morgan defendants and QLS cannot foreclose because JP Morgan does
not have physical possession of plaintiff’s original promissory note, and (2) the JP
Morgan defendants and QLS cannot foreclose because the notice of default was recorded
before defendants acquired standing to take action.” The court concluded that “there is no
triable issue of fact as to either of these two theories.” We agree.
       Plaintiff’s principal argument is that JP Morgan did not have the right to foreclose
because it was not the beneficiary under the deed of trust and did not have physical
possession of the promissory note when the notice of default was recorded. He points out,
correctly, that when QLS executed the notice of default on June 15, 2010, JP Morgan had
not yet been assigned his promissory note or the beneficial interest under the deed of
trust. These assignments were not made until August 2010.
       However, “California’s statutory nonjudicial foreclosure scheme (§§ 2924-2924k)
does not require that the foreclosing party have a beneficial interest in or physical


                                               4
possession of the note.” (Shuster v. BAC Home Loans Servicing, LP (2012) 211
Cal.App.4th 505, 511.) “We likewise see nothing in the applicable statutes that precludes
foreclosure when the foreclosing party does not possess the original promissory note.”
(Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 440
(Debrunner).) California “does not require a beneficial interest in both the Note and the
Deed of Trust to commence a non-judicial foreclosure sale.” (Lane v. Vitek Real Estate
Indus. Group (E.D.Cal. 2010) 713 F.Supp.2d 1092, 1099.)
       Although JP Morgan had not yet acquired legal title to the lender’s interest under
the loan documents when QLS recorded the notice of default, on July 9, 2009 FNMA had
executed a “Limited Power of Attorney,” making JP Morgan its “true and lawful
Attorney-in-Fact,” and authorizing it, “in its name, place and stead and for its use and
benefits, to . . . execute, endorse, and acknowledge all documents customarily and
reasonably necessary and appropriate for” FNMA to execute, including “the completion,
termination, cancellation, or rescission of foreclosure relating to a mortgage or deed of
trust, including (but not limited to) . . . the issuance or cancellation or rescission of notice
of default.” JPMorgan in turn referred the matter to QLS to file the notice of default. QLS
recorded the notice of default with respect to plaintiff’s loan on June 15, 2010. A
principal may confer on its agent the authority to take any action the principal may take.
(Fontenot v. Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at p. 271; §§ 2305, 2315.)
As indicated above, the notice of default states that QLS was acting “as agent for
beneficiary.” Although the notice does not identify the beneficiary explicitly, it does refer
inquiries to JP Morgan and, in all events, there is no requirement that the notice identify
the beneficiary. (See § 2943, subd. (a)(1)(A)-(D); Aceves v. U.S. Bank, N.A. (2011) 192
Cal.App.4th 218, 232.)
       It is equally irrelevant whether QLS or JP Morgan physically possessed the
promissory note when QLS executed the notice of default. (Debrunner, supra, 204
Cal.App.4th at p. 440.) FNMA reassigned the note and beneficial interest under the deed
of trust to JP Morgan soon after the notice of default was recorded, on August 25, 2010,
and JP Morgan substituted QLS as the trustee under the deed of trust on September 23,


                                               5
2010. All further foreclosure proceedings, including recordation of the notice of trustee’s
sale on September 28, 2010, were properly executed by JP Morgan, as the new
beneficiary, and QLS, as the substituted trustee.
       Under California law, a notice of default need not be executed or recorded by the
trustee under the deed of trust. (§ 2924.) Section 2924, subdivision (a)(1) specifies those
who are authorized to record a notice of default. “[S]ection 2924, subdivision (a)(1),
permits a notice of default to be filed by the ‘trustee, mortgagee, or beneficiary, or any of
their authorized agents.’ The provision does not mandate physical possession of the
underlying promissory note in order for this initiation of foreclosure to be valid.”
(Debrunner, supra, 204 Cal.App.4th at p. 440; Calvo v. HSBC Bank USA, N.A. (2011)
199 Cal.App.4th 118, 125.)
       Plaintiff asserts that the notice of default was void because it was recorded before
the substitution of trustee and the assignment of beneficial interest from FNMA to JP
Morgan were recorded. Contrary to plaintiff’s assertion, in previously having overruled
QLS’s demurrer, the trial court did not accept this argument and make “a binding
determination that the notice of default was void.” Unlike the requirements that apply to
“practically obsolete” mortgages under section 2932.5, the agent of the beneficial owner
of a deed of trust is authorized to initiate foreclosure “irrespective of the recording of a
substitution of trustee.” (Calvo v. HSBC Bank USA, N.A., supra, 199 Cal.App.4th at p.
125.) As the trial court correctly observed, “[t]he fact that QLS had not been formally
substituted in as a trustee at the time QLS recorded the notice of default is not a
procedural irregularity under California Law.”
       Moreover, were there any irregularity in the foreclosure proceedings, plaintiff
would be required to show resulting prejudice to obtain relief, and his papers in
opposition to the summary judgment motions fail to do so. A plaintiff has the burden to
provide substantial evidence of “prejudicial procedural irregularity” in order to rebut the
“presumption that nonjudicial foreclosure sale was conducted regularly and fairly.”
(Debrunner, supra, 204 Cal.App.4th at p. 443.) In Fontenot, the court explained that “a
plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate


                                               6
[that] the alleged imperfection in the foreclosure process was prejudicial to the plaintiff’s
interest.” (Fontenot v. Wells Fargo, N.A., supra, 198 Cal.App.4th at p. 272.)
       In Debrunner, the plaintiff challenging foreclosure proceedings argued that the
notice of default was defective because the beneficiary was not listed and a certain entity
was listed as the trustee even though there was no recorded substitution of that entity as
trustee at the time. (Debrunner, supra, 204 Cal.App.4th at p. 443.) The court held that the
plaintiff was not prejudiced because even though the beneficiary was not listed, the
attorney-in-fact’s name, address, and telephone number were listed. (Ibid.; see also
Aceves v. U.S. Bank N.A., supra, 192 Cal.App.4th at p. 232.) Here, it is equally clear that
plaintiff did not suffer any prejudice as a result of the manner in which the notice of
default was worded. As in Debrunner, the notice instructed the plaintiff to contact JP
Morgan if he wanted to “find out the amount [he] must pay, or arrange for payment to
stop the foreclosure, or if [his] property is in foreclosure for any other reason.” The notice
included the address and telephone number of JP Morgan. Moreover, JP Morgan wrote
plaintiff a letter dated August 24, 2010, enclosing the note and security instrument that
plaintiff had requested and advising that plaintiff could contact its “foreclosure attorney
Quality Loan Service Corp. at . . .” if he required any “further information regarding to
this process or if [he] need[ed] payoff reinstatement amounts.” Plaintiff failed to offer
evidence of any prejudice that warrants relief. (See Aceves, 192 Cal.App.4th 218; Knapp
v. Doherty (2004) 123 Cal.App.4th 76, 93-94 & fn. 9.)
       There is yet another reason for which plaintiff’s challenge to the foreclosure fails.
Generally, “a debtor cannot set aside the foreclosure based on irregularities in the sale
without also alleging tender of the amount of the secured debt.” (Shuster v. BAC Home
Loans Servicing, LP, supra, 211 Cal.App.4th at p. 512.) “A valid and viable tender of
payment of the indebtedness owing is essential to an action to cancel a voidable sale
under a deed of trust.” (Karslen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d
112, 117.) “The basic rule is that an offer of performance is of no effect if the person
making it is not able to perform. [Citation.] Simply put, if the offeror ‘. . . is without the
money necessary to make the offer good and knows it . . .’ the tender is without legal


                                               7
force or effect.” (Id. at p. 118.) “The rationale behind the rule is that if [the borrower]
could not have redeemed the property had the sale procedure been proper, any
irregularities in the sale did not result in damages to the [borrower].” (FPCI RE-HAB 01
v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1022.) Thus, “[a]llowing
plaintiffs to recoup the property without full tender would give them an inequitable
windfall, allowing them to evade their lawful debt.” (Stebley v. Litton Loan Servicing,
LLP (2011) Cal.App.4th 522, 526.)
       So far as the record indicates, plaintiff has not tendered or made an unconditional
offer to tender the full amount owing on the loan. (See Lona v. Citibank, N.A. (2011) 202
Cal.App.4th 89, 114.) Plaintiff stated in his amended complaint that he was “willing to
tender the amount received subject to equitable adjustment for the damages caused to
defendant by the plaintiff’s activities.” (Italics added.) He claims he has sufficient equity
in his home to allow him to “refinance with a reverse that would satisfy his mortgage
obligation and has a loan pending, subject to the results of this action.” This conditional
offer of performance does not guarantee that plaintiff will be able to perform and is an
insufficient tender. (Karslen v. American Sav. & Loan Assn., supra, 15 Cal.App.3d at
pp. 117-118.)

             2. Plaintiff’s Fourth Cause of Action for Violation of Section 2943.

       Plaintiff’s fourth cause of action alleges that FNMA and JP Morgan violated
section 2934, subdivision (e)(4) by failing to adequately provide plaintiff with a
requested beneficiary statement. Defendants assert that federal law preempts this claim.
(Lopez v. World Savings & Loan Assn. (2003) 105 Cal.App.4th 729.) Plaintiff makes a
two-fold response. First, he argues that defendants waived this affirmative defense by
failing to allege it in their answer to the amended complaint. Second, he argues that the
requirement of providing a beneficiary statements under section 2943 has not been
preempted.
       Plaintiff’s first contention is without merit because “California law does not
require that preemption be alleged as an affirmative defense and specifically allows


                                               8
preemption to be raised for the first time by summary judgment motion.” (Dearth v.
Great Republic Life Ins. Co. (1992) 9 Cal.App.4th 1256, 1276.) Preemption is a question
of subject matter jurisdiction and is thus not waived by failure to assert it in the answer.
(DeTomaso v. Pan American World Airways, Inc., (1987) 43 Cal.3d 517, 520, fn. 1, 235.)
       As to the merit of the preemption argument, federal regulations provide: “Pursuant
to sections 4(a) and 5(a) of the HOLA [Home Owners Loan Act], 12 U.S.C. 1463(a),
1464(a), OTS [Office of Thrift Supervision] is authorized to promulgate regulations that
preempt state laws affecting the operations of federal savings associations when deemed
appropriate to facilitate the safe and sound operation of federal savings associations, to
enable federal savings associations to conduct their operations in accordance with the
best practices of thrift institutions in the United States, or to further other purposes of the
HOLA.” (12 C.F.R. § 560.2 (2002).) In Lopez, this court held that “section 2943 is within
the scope of those provisions that 12 C.F.R. part 560.2 (2002) is intended to preempt.
Therefore, if [as the court also held] the regulation itself has been authorized by
Congress, neither the cause of action for violating . . . section 2943 nor the cause of
action for engaging in a practice deemed unlawful or unfair because it violates that
provision can proceed.” (Lopez v. World Savings & Loan Assn., supra, 105 Cal.App.4th
at p. 742.) We held that “insofar as it applies to federal savings and loan associations, . . .
section 2943 has been preempted by the federal regulation, as has any cause of action
under the [unfair competition law] that is predicated on a violation of section 2943.”
(Lopez, p. 745; see also Jelsing v. MIT Lending (S.D.Cal., July 9, 2010, No. 10cv416
BTM (NLS)) 2010 U.S.Dist. Lexis 68515, pp. *6-7 [“Under California law, when a
lender receives a letter demand for ‘a copy of the note or other evidence of indebtedness,’
it must deliver a copy, along with a beneficiary statement, within twenty-one days. This
provision imposes a requirement related to disclosure . . . or the processing or servicing
of mortgagees. It is therefore preempted.”].)
       Valley was a federally chartered savings and loan association. Therefore, federal
law preempts any cause of action under section 2943, even if brought against an assignee
of Valley that is not a federally chartered savings and loan association. (See Javaheri v.


                                                9
JPMorgan Chase Bank, N.A. (C.D.Cal., Aug. 13, 2012, No. 2:10-cv-08185-ODW
(FFMx)) 2012 U.S.Dist. Lexis 114510, at p. *9 [“Although JPMorgan is not a federal
savings bank and is not regulated by the OTS, the same HOLA preemption analysis still
applies because the loan originated with a [federal savings bank].”].)
       Plaintiff attempts to distinguish the Civil Code provision requiring delivery of a
beneficiary statement from the fee requirement challenged in Lopez. However, federal
law “occupies the entire field of lending regulation for federal savings associations’”
including ‘all state laws purporting to regulate any aspect of the lending operations of a
federally chartered savings association.” (Lopez v. World Savings & Loan Assn., supra,
105 Cal.App.4th at pp. 740-741.) Even if defendants did not fully comply with the
requirements of section 2934, subdivision (e)(4)—which we do not suggest—the cause of
action as pleaded is preempted.
       Plaintiff belatedly attempted to change course in the trial court, and argues on
appeal that defendants failed to comply with the requirement imposed by the Real Estate
Settlement Procedures Act (RESPA), 12 United States Code section 2605(e), that a loan
servicer timely respond to a borrower’s “qualified written request” (QWR). Plaintiff
contends that he did not receive an adequate response to his written request to JP Morgan
for a “beneficiary statement pursuant to [section] 2934 and a true copy of the Note and
[deed of trust].”
       Because plaintiff did not state a cause of action under RESPA in his amended
complaint, the trial court refused to rule on this alternative theory. Nonetheless, the court
did note that, in any event, “the letter[] on which plaintiff relies do[es] not constitute a
valid ‘qualified written request’ under RESPA.” The trial court was correct.
       Section 2605, subsection (e) of RESPA requires a loan servicer to provide
disclosures relating to the assignment, sale, or transfer of loan servicing to a potential or
actual borrower. (12 U.S.C. § 2605(e)(1)(B)(i).) The loan servicer has a duty to respond
to a borrower's “qualified written request.” In order to qualify as a QWR, a borrower's
inquiry must “include[] a statement of the reasons for the belief of the borrower . . . that
the account is in error or provide sufficient detail to the servicer regarding other


                                              10
information sought by the borrower.” (12 U.S.C. § 2605(e)(1)(B)(ii).) In Gates v.
Wachovia Mortg., FSB (E.D.Cal., June 28, 2010, No. 2:09-cv-02464-FCD/EFB) 2010
U.S.Dist. Lexis 64268, the court held that “[t]he purported QWR contain[ed] no
statement of plaintiff's belief as to the existence of a servicing error, nor [did] it contain
anything to put Wachovia on notice of a servicing error. Rather, the letter [was] primarily
aimed at uncovering documents relating to the ownership of the obligation, as well as
seeking rescission or modification by calling into question the validity of the loan.” (Id. at
p. 10.) The court concluded that “neither an inquiry into the ownership of a loan, nor an
allegation of defective loan documentation, are sufficient to transform an otherwise non-
qualifying correspondence into a QWR.” (Ibid.)
       Here, plaintiff’s written request similarly does not qualify as a valid QWR. His
letter to JP Morgan requested a “beneficiary statement pursuant to [section] 2934 and a
true copy of the Note and [deed of trust].” As in Gates, the letter sought documents
relating to the ownership of the obligation and did not include a statement of the reasons
for believing that there was an error in the account. Since plaintiff did not submit a valid
QWR, there is no need to consider his contention that RESPA “trumps” the preemption
of section 2934.

                            3. Plaintiff’s Additional “Arguments”

       Finally, there is no merit in the numerous additional “arguments” that plaintiff
includes in his appellate briefs, to the extent the arguments are even comprehensible.
Plaintiff argues that the trial court committed reversible error by failing to provide a
statement of decision. Passing the fact that the court did provide a thorough written
explanation for its ruling, the trial court is not required to issue a statement of decision on
a motion for summary judgment. (Mechanical Contractors Assn. v. Greater Bay Area
Assn. (1998) 66 Cal.App.4th 672, 678.) On a motion for summary judgment the court
does not make findings of fact, but instead “it is the duty of the trial court to determine
whether plaintiff or defendant has presented any facts which give rise to a triable issue or




                                               11
defense, not to pass upon or determine the issue itself.” (Perry v. Farley Bros. Moving &
Storage, Inc. (1970) 6 Cal.App.3d 884, 889.)
       Plaintiff appears to argue that the trial court erroneously awarded the defendants
“Equitable Relief,” but the court granted no form of equitable relief. The court did no
more than grant defendants’ motion for summary judgment, rejecting plaintiff’s
challenges to the foreclosure proceedings. In footnotes 2 and 3, ante, we have addressed
plaintiff’s objections to the premise that he signed the promissory note and deed of trust
in question, and to the taking of judicial notice of the recorded title documents. Further,
plaintiff makes no showing that the court abused its discretion, much less denied plaintiff
due process, by assigning a “discovery facilitator” after ruling on his motion to compel
production of documents and further responses to interrogatories.
                                        Disposition
       The judgment is affirmed. Defendants shall recover their costs on appeal.



                                                  _________________________
                                                  Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




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