U.S. Bank National Association as Trustee v. Naifeh

U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE, etc.,

Plaintiff and Respondent,

v.

STEPHANIE NAIFEH et al.,

Defendants and Appellants.

No. A142994

California Courts of Appeal

First Appellate District

Division Five

(San Francisco City and County

Super. Ct. No. CGC-11-509805)

Filed August 17, 2016

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

CERTIFIED FOR PARTIAL PUBLICATION^*

^* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion remains certified for publication with the exception of parts II.B., II.C, and II.D.  

BY THE COURT:

     It is ordered that the opinion filed herein on July 19, 2016, be modified as follows:

     1. On page 7, replace the text in the footnote to the third full paragraph  (appearing in the original opinion as footnote 4) with the following:  ?The parties do not dispute that on January 11, 2011, after BofA purportedly obtained title to the Property, respondent succeeded BofA as trustee of the HY06 Trust.? 

     2. On page 23, in the third paragraph, replace the second sentence with the following:  ?Chase obtained certain rights with respect to the Loan pursuant to the 2008 transaction with the FDIC as receiver for WaMu; the March 2009 Assignment of Deed of Trust identified Chase as successor to WaMu and recorded the assignment of all beneficial interest under the deed of trust to BofA; and respondent became successor in interest to BofA.?

     3.  On page 24, at the end of the first full paragraph, add the following new footnote (with all following footnotes renumbered accordingly):

?Appellants contend there is no evidence that the Loan was securitized and transferred into the trust by 2007 (if ever).  According to appellants, the transfer could not have been accomplished by the 2009 Assignment of Deed of Trust by Chase, since the assignment is in the present tense (pertaining to 2009) and Chase had no beneficial interest in the Loan that could be transferred to the trust (or to BofA).  For this latter reason, appellants also argue there is no evidence that any interest in the Loan was ever effectively assigned to BofA.  Appellants are incorrect.  The 2009 Assignment of Deed of Trust was not the vehicle by which the Loan was assigned to the trust; it evinced that the Loan had previously been transferred to the trust, and by 2009 the trustee was changed from LaSalle Bank to Bank of America.  Chase---the servicer of the trust---would not need a beneficial interest in the Loan to make the assignment from one trustee to another.  On its face, the Assignment of Deed of Trust shows that BofA (as trustee of the trust) held, by March 2009, all beneficial interest in the Loan, which had been placed into the trust.?

     4.  On page 25, replace the text of the second paragraph with the following:  ?We agree with the predominant view that a transfer into the securitized trust in purported violation of the terms of a PSA would render the assignment voidable rather than void; in the absence of a successful challenge by a party to the PSA, the assignment is valid and, therefore, appellants cannot argue that the transfer was ineffective on this ground.?  Retain the footnote appearing in the original opinion as footnote 12 at the end of the new paragraph.

     The modification effects no change in the judgment.

     The petition for rehearing is denied.

Date:

Jones, P.J.

Superior Court of the City and County of San Francisco, No. CGC-11-509805, Marla Miller, Judge.

Sheik Law, Mani Sheik; Murchison & Cumming, John Podesta, and Jennifer K. Letulle for Defendant and Appellant.

Parker Ibrahim & Berg, John M. Sorich, Jenny L. Merris, Heather E. Stern; Alvarado & Smith, and Theodore E. Bacon for Plaintiff and Respondent.