Request for Preliminary Injunction/TRO (Judge Robert Moss)

Plaintiff’s request for preliminary injunction/TRO.  Request denied.  (See Code Civ. Proc. §§ 526 and 527).

Plaintiffs have failed to demonstrate a likelihood of success on any of the causes of action in in the complaint. The gist of the plaintiff’s claims arise from their  claim  that there was an “improper securitization” of the mortgage loan encumbering the real property, and that as the result of an improper assignment of the Deed of Trust, the current foreclosing party does not have the right to foreclose.

Based upon the current state of law on this issue, plaintiffs (as strangers to the subject mortgage loan, much less borrowers) lack standing to challenge the assignment of the subject Deed of Trust.  (See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23).

Unlike the plaintiffs in Yvanova v. New Century Mortgage Corp. (2015) 62 Cal.4th  919; and Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, plaintiffs here fail to establish that they are the borrowers under or that they have expressly assumed the subject mortgage, but only that they accepted title to the real property subject to the existing mortgage loan.

The New York trust law underpinnings of the Glaski decision have been subsequently overturned,  as recognized in Kalnoki v. First American Trustee Servicing Solutions, supra. (See also Wells Fargo Bank, N.A. v. Erobobo (N.Y. App. Div. 2015) 127 A.D.3d 1176, 1178, 9 N.Y.S.3d 312.). Thus an untimely or otherwise improper assignment into an investment trust is not void, but merely voidable at the trust beneficiary’s option.

Because any alleged irregularities in the securitization process are merely voidable at the securitized trust beneficiary’s behest, and as plaintiffs have not established that they are beneficiaries of the trust, they lack standing to challenge the assignment (or “securitization”) on such grounds. They also have not shown that the actual beneficiaries of the trust exercised any right to hold as voidable, the assignment of the subject deed of trust into the subject investment trust.

The legal effect of the judicially noticeable instruments reflect that ownership of the Deed of Trust has been assigned by the identified Beneficiary MERS to Defendant Bank of New York-Mellon, fka The Bank of New York as trustee for the Holders of Structured Asset Mortgage Investments II Trust 2006-AR*, Mortgage Pass-Through Certificates Series 2006-AR8 (“Bank of New York”) , that Bank of New York as beneficiary  of record then substituted the trustee under the Deed of Trust, and that the Trustee of record is prosecuting the pending non-judicial foreclosure.

Defendant’s  Request for Judicial Notice is GRANTED. Judicial notice is limited to the existence of, recording of, and legal effect of  the recorded instruments.

Moving party to give notice.