Response Brief of JPM-FNMA

8/12/2019 Response Brief of JPM-FNMA

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A139655IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICTDIVISION NO. 3

LEIGHTON LEE PERRY,Appellant,

vs.JPMORGAN CHASE BANK, N.A.; QUALITY LOAN SERVICE CORP.;FEDERAL NATIONAL MORTGAGE ASSOCIATION; CHASE HOMEFINANAS, LLC; and all persons unknown, claiming any legal or equitableright, title estate, lien or interest in the property described in this Complaintadverse to Plaintiffs title thereto and as DOES 1-100, inclusive,

Respondents.

Appeal from the Superior Court ofContra Costa CountyCase No. MSCl0-02914The Honorable LaurelS. Brady(Notice ofAppeal Filed: September 3, 2013)

RESPONDENTS JPMORGAN CHASE BANK, N.A.AND FEDERAL NATIONAL MORTGAGEASSOCIATION S OPENING BRIEF

JOHN COX, CASB No. [email protected] ROSS, CASB No. [email protected], YOUNG LOGANA Professional Corporation450 Pacific AvenueSan Francisco, California 94133Telephone: (415) 398-6000Facsimile: (415) 981-0136Attorneys for Respondents JPMORGAN CHASEBANK, N.A., for itself and as successor y mergerto CHASE HOME FINANCE LLC, and FEDERALNATIONAL MORTGAGE ASSOCIATION


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CERTIFICATE OF INTERESTED ENTITIESRespondents JPMORGAN CHASE BANK, N .A. ( Chase ) and

FEDERAL NATIONAL MORTGAGE ASSOCIATION ( Fannie Mae )(collectively, Respondents ) hereby submit this Certificate of InterestedEntities pursuant to Rule 8.208 of the California Rules of Court.

Chase is a wholly-owned subsidiary of JP Morgan Chase & Co.,which is a publicly-traded corporation. No publicly-held corporation ownsten percent (10%) or more of JP Morgan Chase & Co. s stock as of August21, 2009.

Federal National Mortgage Association ( Fannie Mae ) is afederally chartered corporation and has no parent corporation. No publiclyheld company owns 1 percent or more of its stock.

Dated: February 6, 2014

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JOHN COXIAN ROSSKEESAL, YOUNG & LOGANAttorneys for RespondentsJPMORGAN CHASE BANK,N.A., for itself and as successorby merger to CHASE HOMEFINANCE LLC, and FEDERALNATIONAL MORTGAGEASSOCIATION


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T BLE OF CONTENTSage

P GElI PRELIMINARY STATEMENT ........................................................II. INTRODUCTION ..............................................................................III. STATEMENT OF FACTS ................................................................. 2IV. PROCEDURAL HISTORY .............................................................. 4V ISSUES PRESENTED ....................................................................... 5VI. STANDARD OF REVIEW ................................................................ 6VII. LEGAL DISCUSSION ....................................................................... 7

A THERE ARE NO TRIABLE ISSUES OFMATERIAL FACT AS TO APPELLANT'S FOURCAUSES OF ACTION, AND RESPONDENTS AREENTITLED TO IDDGMENT AS A MATTER OFLAW ........................................................................................ 81 There Are No Triable Issues of MaterialFact as to Appellant's First Cause ofAction for Declaratory Relief, andRespondents are Entitled to Judgment

as a Matter of Law ..................................................... 82 There Are No Triable Issues of MaterialFact as to Appellant's Second Cause ofAction for Slander of Title, andRespondents are Entitled to Judgmentas a Matter of Law ................................................... 103 There Are No Triable Issues of MaterialFact as to Appellant's Third Cause ofAction for Quiet Title, and Respondentsare Entitled to Judgment as a Matter of

Law ..........................................................................114 There Are No Triable Issues of MaterialFact as to Appellant's Fourth Cause ofAction for "Violation of Calif. CivilCode 2943," and Respondents areEntitled to Judgment as a Matter of Law ................ .12

B APPELLANT'S FOURTEEN "ISSUESPRESENTED" DO NOT DEMONSTRATE THEEXISTENCE OF A TRIABLE ISSUE OFMATERIAL FACT, AN ABUSE OF DISCRETION,OR A PREJUDICIAL ERROR ............................................. 151


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1 Appellant's First Issue Presented .........................152 Appellant's Second Issue Presented .....................163 Appellant's Third Issue Presented ...................... 174 Appellant's Fourth Issue Presented ......................185 Appellant's Fifth Issue Presented ........................ .196 Appellant's Sixth Issue Presented ........................237 Appellant's Seventh and Eighth IssuesPresented ................................................................238 Appellant's Ninth Issue Presented .......................259 Appellant's Tenth Issue Presented ....................... 2610 Appellant's Eleventh Issue Presented ..................2811 Appellant's Twelfth Issue Presented .................... 2912 Appellant's Thirteenth IssuePresented ................................................................ 3013 Appellant's Fourteenth IssuePresented ................................................................31

C APPELLANT'S ARGUMENT SECTION DOESNOT DEMONSTRATE THE EXISTENCE OF ATRIABLE ISSUE OF MATERIAL FACT, ANABUSE OF DISCRETION, OR A PREJUDICIALERROR ..................................................................................321 The Trial Court's Failure to Providethe Requested Statement ofDecision IsNot Reversible Error ................................................322 The Trial Court Did Not AwardRespondents Equitable Relief ' byGranting the Motion ................................................333 California Civil Code Section 2943 isPreempted by Federal Law ......................................334 Appellant Does Not Have a Legal Basisfor an Action Challenging Respondents'Authority to Foreclose ............................................ .34

VIII. CONCLUSION ................................................................................. 36

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TABLE OF AUTHORITIES

FEDERAL CASESJavaheri v JPMorgan Chase Bank, N.A.,2012 U.S. Dist. LEXIS 114510 C.D. Cal. Aug. 13, 2012) ................. 3Jelsing v M T Lending,2010 U.S. Dist. LEXIS 68515, at *7 S.D. Cal. July 9, 2010) ....... 14, 6Richards v Bank ofAmerica, N.A.,2010 U.S. Dist. LEXIS 92389 N.D. Cal. Aug. 13, 2010) ...................STATE CASESAceves v U S Bank N.A.,192 Cal. App. 4th 218 2011) ................................................... 10, 20 22Berger v Cal Ins. Guarantee Assn.,

28 Cal. App. 4th 989 2005) ........................................................ passimBerger v Godden,

63 Cal. App. 3d 1113 1985) .............................................................. 8Carnes v Superior Court,126 Cal. App. 4th 688 2005) ................................................................. 7Cassim v Allstate Ins. Co.,

33 Cal. 4th 780 2004) .................................................................... 16, 30Dearth v Great Republic Life Ins. Co.,9 Cal. App. 4th 1256 1992) ................................................................. 4Debrunner v Deutsche Bank National Trust Co.,204 Cal. App. 4th 433 2012) ........................................................... 9, 9Estate ofRandall,194 Cal. 725 1924) .............................................................................. 8Fontenot v Wells Fargo Bank, N.A.,

98 Cal. App. 4th 256 20 11) ................................................... 17, 22, 26Halliburton Energy Services, Inc. v Dep t ofTrans.,

220 Cal. App. 4th 87 2013) ................................................................... 7

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In reIns. Installment Fee Cases,211 Cal. App. 4th 1395 2012) ............................................................. 25Jolley v Chase Home Fin., LLC,

213 Cal. App. 4th 872 2012) ............................................................... 27Kern County Dept. ofChild Support Services v Camacho,209 Cal. App. 4th 1028 2012) ........................................... 18, 20, 27 34Keyes v Bowen,189 Cal. App. 4th 657 20 10) ............................................................... 25Lopez v World Savings Loan Assn.,105 Cal. App. 4th 729 2003) ................................................... 13, 14, 16Mansell v Bd. ofAdmin.,30 Cal. App. 4th 539 1994) ................................................................. 29Mechanical Contractors Assn. v Greater Bay Area Assn.,66 Cal. App. 4th 672 1998) ................................................................. 32Nwosu v Uba,

122 Cal. App. 4th 1229 2004) ............................................................. 5Perry v Farley Bros. Moving Storage, Inc.,

6 Cal. App. 3d 884 1970) .................................................................... 32Premier Medical Management Systems, Inc. v California InsuranceGuarantee Association,

63 Cal. App. 4th 550 2008) ............................................................... 29Sangster v Paetkau,68 Cal. App. 4th 5 1998) .......................................................... passimSchuster v BAC Home Loans Servicing, LP,

211 Cal. App. 4th 505 2012) ........................................................... 9, 9Scott v JPMorgan Chase Bank, NA.

214 Cal. App. 4th 743 2013) ............................................................... 27Shimpones v Stickney,

219 Cal. 637 1934). Resp. App. pg. 048-049) ................................... 2Siliga v Mortg. Electronic Registration Systems, Inc.,

219 Cal. App. 4th 75 2013) ................................................................. 22

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Smith v Commonwealth and Title Ins. Co.177 Cal. App. 3d 625 1986) ................................................................ 11

Stebly v Litton Loan Servicing LLP202 Cal. App. 4th 522 2011) ............... .................. ................. ............. 16

Tropico Land Improv. Co v Lambourn170 Cal. 33 1915) ................. ................. ................. ................. ............ 35

FEDERAL STATUTES AND RULESHOLA ............................................................................................ 13, 16, 34STATE STATUTES AND RULES

CAL CIV CODE 2924 a) 1) .............................................................. 11, 21CAL CIV CODE 2924 d) 1) .................................................................... 10CAL CIV CODE 2943 ....................................................................... passimCAL CODE CIV PROC 473 b) ................................................................ 25CAL CODE CIV PROC 632 ..................................................................... 32CAL R COURT 3.1308 e) .......................................................................... 31

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I PRELIMIN RY ST TEMENTIn this appeal, Appellant LEIGHTON LEE PERRY ( Appellant )

seeks the review of an order issued by the trial court simultaneouslygranting the separate motions for summary judgment filed by RespondentsJPMORGAN CHASE BANK, N.A., for itself and as successor by mergerto CHASE HOME FINANCE LLC ( Chase ), and FEDERALNATIONAL MORTGAGE ASSOCIATION ( Fannie Mae ) (collectively,Respondents ), on the one hand, and QUALITY LOAN SERVICE

CORPORATION ( QLSC ), on the other hand. (Appellant's OpeningBrief ( Opening Brief ) pg. ( This appeal is from the entry of udgment[... ] on orders granting summary judgments [sic] in favor of [Respondents]and [QLSC] .... ). With this brief, Respondents respectfully submit that thetrial court did not err in granting their motion for summary judgment( Motion ), and that this Court should affirm the trial court's judgment inits entirety.II INTRODUCTION

This action arises out of a deed of trust securing a $130,000 loan andencumbering Appellant's real property located in Martinez, California( Subject Property ). Pursuant to the terms ofthis deed of trust,Respondents and QLSC initiated non-judicial foreclosure proceedingsagainst the Subject Property in June 2010, and Appellant filed the instantlawsuit to contest this process. Appellant admits that he executed the deedof trust and obtained the loan that it secures. Appellant also admits that hedefaulted on the loan, thereby indisputably triggering the power of saleprovided by the deed of trust. Accordingly, Appellant cannot contend thatforeclosure was not warranted under the circumstances. Rather,Appellant's objection concerns the uthority of Respondents and QLSC to

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initiate foreclosure. Appellant asserts, with no legal or factual support, thatRespondents did not physically possess his loan note and therefore did notwield the beneficial interest necessary to authorize foreclosure.

n the trial court, Respondents and QLSC produced indisputableevidence proving that they i have the requisite interests in Appellant'sloan and deed of trust, that they i possess Appellant's loan note, and thatAppellant's allegations of procedural improprieties in the foreclosureprocess were completely unfounded. When Respondents and QLSCoffered up this evidence in support of their motions for summary judgment,Appellant offered nothing to the contrary. The trial court correctly foundthat Appellant had failed to demonstrate the existence of a triable issue ofmaterial fact, and granted the motions in their entirety.

On appeal, Appellant sets forth fourteen issues presented and foursections of argument, each of which attempt to demonstrate that the trialcourt committed prejudicial error or abused its discretion. Several of thesepoints were not raised in the trial court, many are unintelligible, and all arewithout merit. Appellant 's Opening Brief does not articulate a singletriable issue o material fact

The vast majority of Appellant s arguments are entirely divorcedfrom the question of whether Respondents were entitled to judgment as amatter oflaw. None of Appellant's contentions on appeal warrant reversalof the trial court's judgment. Accordingly, Respondents respectfullyrequest that this Court affirm said judgment in its entirety.III. STATEMENT OF FACTS

In May 1988, Appellant executed a Deed of Trust ( DOT ) securinga $130,000 loan ( Subject Loan or Promissory Note ) and encumberingthe Subject Property. (Respondents JPMorgan Chase Bank, N.A. and

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dated August 24 2010 which enclosed copies of the Promissory Note andDOT. (Resp. App. pg. 120).

A Notice of Default ( NOD ) was recorded pursuant to the DOT onJune 15, 2010 by QLSC in its capacity as agent for the beneficiary, recitingthat Appellant 's loan account was $7,039.03 in arrears. (Resp. App. pgs.067-068). Appellant defaulted on the Subject Loan in November 2009, afact that is not disputed by Appellant. (Resp. App. pg. 081 . Additionally,Appellant dmits that in March 2010 he elected to stop making paymentsentirely. (Resp. App. pg. 010).

A second Assignment of Deed of Trust ( 2nd Assignment ) wasrecorded on August 30, 2010. (Resp. App. pg. 070). With the 2ndAssignment, Fannie Mae transferred all beneficial interest under the DOTto assignee Chase. (Resp. App. pg. 070).

On September 23, 2010, a Substitution of Trustee ( SOT ) wasrecorded, substituting QLSC in as trustee of the DOT. (Resp. App. pg.072).

Finally, on September 28, 2010, a Notice of Trustee's Sale( NOTS ) was recorded by QLSC pursuant to the DOT and NOD. (Resp.App. pgs. 076-077). The NOTS announced that a foreclosure sale had beenscheduled for October 19, 2010, and that there was $70,811.10 of unpaidbalance and other charges in Appellant's loan account. (Resp. App. pg.076).IV PROCEDUR L HISTORY

This action was initiated in the trial court on October 14, 2010.(Resp. App. pg. 207). Appellant's First Amended Complaint, filed on July29, 2011, asserted four causes of action: (1) declaratory relief; (2) slanderof title; (3) quiet title; and (4) violation of California Civil Code section

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2943. (Resp. App. pgs. 013-023). This was the operative complaint whenthe trial court issued the judgment now on appeal.

Over the course of litigation, Appellant filed multiple motions tocompel discovery, each ofwhich were adjudicated in Respondents' favor.Appellant is not appealing those decisions. (Opening Briefpg. 11).

Respondents filed the Motion on January 24, 2013, arguing that thecase involved no triable issues ofmaterial fact and that Respondents wereentitled to judgment as a matter oflaw with respect to each ofAppellant'sfour causes of action. (Resp. App. pgs. 034-051 . Appellant filed anOpposition ( Opposition ), and Respondents filed a Reply ( Reply ).(Resp. App. pg. 265). The Motion was heard in tandem with co-defendantQLSC's separate motion for summary judgment, and both motions weregranted in their entirety. (Resp. App. pgs. 266-274). Judgment was enteredon behalf ofRespondents on June 19,2013, and notice of the entry ofjudgment was served on Appellant on July 20, 2013. (Resp. App. pgs. 199,203).

Appellant filed a Notice ofAppeal with the trial court on September3, 2013. (Resp. App. pg. 275).V ISSUES PRESENTE

In his Opening Brief, Appellant recites a laundry list ofpurportederrors committed by the trial court throughout the life of this case.Appellant does not argue or explain how those alleged errors relate to thesummary judgment motion at issue in this appeal. Nothing in the OpeningBrief demonstrates the existence of a triable issue ofmaterial fact orsuggests that Respondents are not entitled to judgment as a matter of law.Similarly, the Opening Brief does not show that the trial court abused itsdiscretion or committed prejudicial error of any kind. As such,

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Respondents respectfully submit that the trial court's judgment should beaffirmed in its entirety.VI STANDARD OF REVIEWSummary judgment is properly granted when no triable issue existsas to any material fact and the moving party is entitled to judgment as amatter of law. d. In moving for summary judgment, a defendant has methis or her burden of showing that a cause of action has no merit if that partyhas shown that one or more elements of the cause of action cannot beestablished, or that there is a complete defense to that cause of action. d.Once the moving defendant has met its initial burden, the burden shifts tothe plaintiff to show that a triable issue of one or more material facts existsas to that cause of action or a defense thereto. d. There is a triable issue ofmaterial fact if, and only if, the evidence would allow a reasonable trier offact to fmd the underlying fact in favor of the party opposing the motion inaccordance with the applicable standard of proof. d. A party may notavoid summary judgment by offering speculation or conjecture. SeeSangster v Paetkau, 68 Cal. App. 4th 151, 163 (1998). A plaintiffopposing a motion for summary judgment may not rely on his or herpleadings alone but must file opposition to the motion with affidavitssetting forth specific f cts demonstrating that a triable issue of material factexists as to the cause of action or defense. Id at 162 (emphasis added).[W]here the parties have had sufficient opportunity adequately to develop

their factual cases through discovery and the defendant has made asufficient showing to establish a prima facie case in his or her favor, inorder to avert summary judgment the plaintiff must produce substantialresponsive evidence sufficient to establish a triable issue of material fact onthe merits of the defendant's showing. Id. at 162-63.

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On appeal, a trial court's decision to grant or deny a summaryjudgment motion is reviewed de novo on the basis of an examination of theevidence before the trial court and the appellate court's independentdetermination of its effect as a matter oflaw. Id at 163. As a summaryjudgment motion raises only questions of law regarding the constructionand effect of supporting and opposing papers, an appellate courtindependently applies the same three-step analysis required of the trialcourt. Halliburton Energy Services, Inc. v Dep t o Trans., 220 Cal. App.4th 87, 9 (2013). The appellate court may consider only those factswhich were before the trial court, and disregard any new factual allegationsmade for the first time on appeal. Sangster, 68 Cal. App. 4th at 163.Thus, unless they were factually presented, fully developed and argued to

the trial court, potential theories which could theoretically create 'triableissues ofmaterial fact' may not be raised or considered on appeal. Id.

Meanwhile, appellate courts review a trial court 's rulings onevidentiary objections in summary judgment proceedings for abuse ofdiscretion. Carnes v Superior Court, 126 Cal. App. 4th 688, 694 (2005).VII. LEG L DISCUSSION

In his Opening Brief, Appellant separates his legal argument intotwo sections. First, Appellant presents fourteen issues presented, eachcontending that the trial court erred in making a particular fmding or takinga particular action. Second, Appellant offers an argument section. t isdifficult to distinguish the purposes of these two sections and, as such,Respondents will treat the aggregate sum of the two sections as Appellant'slegal argument on appeal.

Appellant's issues presented and argument sections rarely referto the four causes of action alleged in the First Amended Complaint or the

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This claim fails as a matter of law for three reasons. First it is wellsettled that beneficial interest in or possession of a promissory note is not apre-requisite to foreclosure. See Schuster v B C Home Loans ServicingLP 211 Cal. App. 4th 505, 511-12 (2012) ( California's statutorynonjudicial foreclosure scheme( 2924-2924k) does not require that theforeclosing party have a beneficial interest in or physical possession of thenote. ); Debrunner v Deutsche Bank National Trust Co. 204 Cal. App. 4th433, 440-42 (2012). This legal reality alone is fatal to Appellant's claim.Second Respondents do possess the Promissory Note Appellant admitsthat Respondents provided him with a copy of the Promissory Note inAugust 20 1 (Resp. App. pg. 011) and that his belief that Respondentslacked beneficial interest in or possession of the Promissory Note was inerror (Resp. App. pgs. 022-023). Third the recorded title documentsillustrate a clear chain of title: Valley Federal, the original beneficiary ofthe DOT, transferred all beneficial interest in the DOT to Fannie Maethrough the I st Assignment, and Fannie Mae transferred all beneficialinterest in the DOT to Chase through the 2nd Assignment. (Resp. App.pgs. 057, 064, 070).

In support of his Opposition to the Motion in the trial court,Appellant offered nothing more than (1) rank speculation that the SubjectLoan could have been written off over the years and (2) a list ofimmaterial flaws in the 1st Assignment. (Resp. App. pgs. 143-145).However, as argued in the Reply, speculation does not create a triable issueof material fact, and alleged procedural irregularities in non-judicialforeclosure do not afford relief where there is no showing of prejudice.(Resp. App. pg. 176). See Sangster 68 Cal. App. 4th at 163 ( Evidencethat gives rise to no more than mere speculation is insufficient to establish a

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triable issue ofmaterial fact. ). See also Aceves v US BankNA. 192 Cal.App. 4th 218, 232 (2011 ). Moreover, as the trial court noted, Appellantproduced a Trustee's Sale Guarantee in support of his Opposition thatexpressly identified Chase as the beneficiary ofAppellant's DOT. (Resp.App. pg. 157).

As such, the trial court properly found that Appellant's Opposition tothe Motion failed to show a triable issue ofmaterial fact as to Appellant'sfirst cause of action for declaratory relief. Respondents are entitled tojudgment as a matter of law as to this claim.

2. There Are No Triable Issues o Material Fact s toAppellant s Second Cause o Action for Slander oTitle, and Respondents are Entitled to Judgment asa Matter o LawAppellant's second cause of action alleged that Respondents

disparaged his title to the Subject Property when they caused the NOD, 2ndAssignment, SOT, and NOTS to be recorded. (Resp. App. pgs. 016-0 17).Appellant again grounded this claim on the allegation that none ofRespondents held a beneficial interest in or possessed the Promissory Noteor DOT. (Resp. App. pgs. 016-017).

This claim shares the same fatal flaws that marred Appellant's firstcause of action. Beneficial interest in or possession of the Promissory Notewas not a prerequisite to foreclosure, Respondents i provide evidence ofpossession of the Promissory Note, and judicially noticeable documentsdemonstrate (and Appellant admits) that Respondents held the beneficialinterest in the DOT. See Section VII(A)(l), supra

Moreover, as explained in the Motion, recordation of the NOD, 2ndAssignment, SOT, and NOTS is a privileged activity. CAL CIV CODE2924( d)(l ). A privilege, either absolute or qualified, is a defense to a

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charge of slander of title. Richards v Bank o America N.A. 2010 U.S.Dist. LEXIS 92389, at *10 (N.D. Cal. Aug. 13, 2010). To defeat a defenseof qualified privilege, Appellant must demonstrate that Respondents actedwith malice. See Smith v Commonwealth Land Title Ins. Co. 177 Cal.App. 3d 625, 631 ( 1986). Appellant's Opposition to the Motion entirelyignored this argument, and Appellant did not present evidence that therecordation of any document was improper, much less performed withmalice.

Rather than address the arguments raised in the Motion, theOpposition focused on the fact that QLSC recorded the NOD as agent forthe beneficiary. (Resp. App. pgs. 145-146). The Opposition erroneouslyargued that California law does not allow any entity other than the trusteeof record to record a notice of default. (Resp. App. pg. 145). However,California Civil Code section 2924(a)(1) expressly allows a trustee,mortgagee, or beneficiary, or any of their authorized agents to recordnotices of default. CAL CIV CODE 2924(a)(1).

Accordingly, the Opposition failed to establish a triable issue ofmaterial fact as to Appellant's second cause of action for slander of title,and Respondents are entitled to judgment as a matter of law as to thisclaim.

3. There Are No Triable Issues of Material Fact as toAppellant s Third Cause of Action for Quiet Title,and Respondents are Entitled to Judgment as aMatter of Law

Appellant's third cause of action sought to quiet title to the SubjectProperty as against Respondents. Once again, Appellant grounded thisclaim on the allegation that Respondents did not have a beneficial interestin, or possession of, the Promissory Note. (Resp. App. pgs. 017-021).

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As explained in the Motion and in the two previous sections,however, (1) foreclosure is not conditioned upon having a beneficialinterest in, or possession of, a promissory note, (2) Respondents providedsubstantial evidence that they i possess the Promissory Note and wieldthe beneficial interest, and (3) the recorded title documents and Appellant'sown admissions illustrated that Respondents possessed all of the necessaryinterests to foreclose. See Section VII(A)(l), supra. Additionally, [i]t issettled in California that a mortgagor cannot quiet his title against themortgagee without paying the debt secured. Shimpones v Stickney 219Cal. 637, 649 (1934). (Resp. App. pg. 048-049). In the First AmendedComplaint, Appellant only alleged an ability or willingness to tender aportion of the debt. (Resp. App. pgs. 019-020).

Appellant's Opposition merely restated the baseless and legallyimmaterial allegations of the First Amended Complaint and added thatRespondents had presented no facts showing the amount they paid for theSubject Loan and DOT. (Resp. App. pgs. 146-147). However, Appellantoffered no evidence demonstrating that Respondents lacked a securedinterest in the Subject Property as provided by the DOT and, therefore, noevidence supporting his quiet title claim.

Accordingly, the Opposition failed to show a triable issue ofmaterialfact s to Appellant's third cause of action for quiet title, and Respondentsare entitled to judgment as a matter of law s to this claim.

4 There Are No Triable Issues o Material Fact as toAppellant's Fourth Cause o Action for Violationo Calif. Civil Code 2943, and Respondents areEntitled to Judgment as a Matter o Law

Appellant's fourth cause of action alleged that Respondents violatedCalifornia Civil Code section 2943 by purportedly inadequately responding

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to Appellant's requests for information e.g., requests for a beneficiarystatement). (Resp. App. pgs. 021-023). As outlined in Respondents'moving papers, however, section 2943 is entirely preempted by federallaw-namely the Home Owners Loan Act ( HOLA ) and the regulationspromulgated thereunder. (Resp. App. pgs. 049-051; 180).

In Lopez v World Savings Loan Assn., 105 Cal. App. 4th 729(2003), the court held that insofar as it applies to federal savings and loanassociations, Civil Code section 2943 has been preempted by [HOLA andthe regulations promulgated thereunder], as has any cause of action that ispredicated upon a violation of section 2943. See Lopez, 105 Cal. App. 4that 745. Indeed, federal law occupies the entire field of lending regulationfor federal savings associations, and preempts all state laws purporting toregulate ny aspect of the lending operations of a federally charteredsavings association ... ld. at 737-38 (emphasis added). Since the originallender under the DOT and Subject Loan was Valley Federal Savings andLoan Association, a federally charted savings association regulated by theOffice ofThrift Supervision, Appellant's claim is entirely preempted.(Resp. App. pgs. 057; 187). This preemption also applies to claims broughtagainst Valley Federal Savings and Loan Association's successors-ininterest, such as Fannie Mae and Chase. See Javaheri v JPMorgan ChaseBank, NA. 2012 U.S. Dist. LEXIS 114510, at 9 (C.D. Cal. Aug. 13,2012) ( Although JPMorgan is not a federal savings bank and is notregulated by the OTS, the same HOLA preemption analysis still appliesbecause the loan originated with [a federal savings bank]. ).

In his Opposition, Appellant argued that federal preemption shouldnot be applied to his claim under section 2943 for two reasons. First,Appellant argued that a federal preemption argument was not available to

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Respondents because Respondents did not assert federal preemption as anaffirmative defense in their Answer to the First Amended Complaint.(Resp. App. pg. 147). However, California law does not require thatpreemption be alleged as an affirmative defense and specifically allowspreemption to be raised for the first time by summary judgment motion.Dearth v Great Republic Life Ins. Co., 9 Cal. App. 4th 1256, 1276 (1992).Accordingly, the Opposition's first argument against the application offederal preemption was without merit.

Second, Appellant argued that federal preemption should not applybecause the cases cited by Respondents in their moving papers onlyreference payoff statements and did not address each of the various typesof statements that may be requested under section 2943. (Resp. App. pg.147). Appellant contended that his case could be distinguished from Lopez--while Lopez involved a request for a payoff statement under section 2943,Appellant's claim involves a request for a beneficiary statement undersection 2943. (Resp. App. pg. 147). Appellant offered no reasoning orauthority to support his position that federal preemption should only beapplied to certain types of statement requests under section 2943 and notothers. (Resp. App. pg. 147). In fact, Lopez s holding cannot be so limited.Indeed, Lopez held that section 2943 is, without qualification, preemptedby federal law in the case of federal savings associations. See Lopez, 105Cal. App. 4th at 745. Moreover, courts have held that section 2943'sprovisions regarding beneficiary statements are preempted by federal law.SeeJelsingv. MIT Lending, 2010 U.S. Dist. LEXIS 68515, at *7 (S.D. Cal.July 9 2010) ( Under California law, when a lender receives a letterdemand for a copy of he note or other evidence of ndebtedness, it mustdeliver a copy, along with a beneficiary statement, within twenty-one days.

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This provision imposes a requirement related to disclosure [... ] or theprocessing or servicing ofmortgages. t is therefore preempted. (emphasisadded)). Accordingly, the distinction relied upon by Appellant in hisOpposition is immaterial.

Thus, the trial court properly entered judgment in favor ofRespondents with regard to Appellant's fourth cause of action. Appellant'sOpening Brief adds nothing to this analysis.

B. APPELLANT'S FOURTEEN ISSUES PRESENTEDDO NOT DEMONSTRATE THE EXISTENCE OF ATRIABLE ISSUE OF MATERIAL FACT, AN ABUSEOF DISCRETION, OR A PREJUDICIAL ERROR1 Appellant's First Issue Presented

Appellant's first issue presented is unintelligible. (Opening Briefpgs. 12-13). He appears to contend that the trial court erred in failing todetermine whether Respondents had capacity or standing to receiveequitable relief from the court. Appellant's contention is baseless. Ingranting Respondents' Motion, the trial court did not grant Respondentsequitable relief. Rather, the trial court merely determined that Appellant

was not entitled to relief because the causes of action h stated in the FirstAmended Complaint had no merit. It is well-settled that failure to make acoherent argument or to cite to supporting authority for contentionsconstitutes a waiver of an issue on appeal, and so this Court shoulddisregard Appellant's first issue presented. See Berger v Cal Ins.Guarantee Assn. 128 Cal. App. 4th 989, 1007 (2005) (holding that failureto make a coherent argument or cite any authority to support [a]

contention[ ... ] constitutes a waiver of the issue on appeal ). This principleis fully applicable even where an appellant represents himself. See Nwosuv Uba 122 Cal. App. 4th 1229, 1247 (2004) (holding that litigants

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representing themselves on appeal in propria persona are not exempt fromfollowing the correct rules ofprocedure); Stebly v Litton Loan ServicingLLP 202 Cal. App. 4th 522, 524 (20 11) ( Although plaintiffs appear in thiscourt without counsel, that does not entitle them to special treatment. ).

To the extent this issue presented asserts that the trial court erredin failing to issue a statement of decision as purportedly requested in afacsimile communication responding to the trial court's tentative ruling onthe Motion, this assertion is addressed infra. See Section VII(C)(l), infra.

2. Appellant's Second Issue PresentedAppellant's second issue presented asserts that the trial court erred

by allowing Respondents to supposedly put forth new argumentregarding federal preemption ofCalifornia Civil Code section 2943 in theirReply supporting the Motion. (Opening Briefpg. 13). This assertion iswithout merit. In the Motion, Respondents expressly argued that section2943 is preempted y federal law, citing to Lopez and Jelsing among othercases. (Resp. App. pgs. 049-051 ). The cases cited in the Motion held thatsection 2943 is preempted y HOLA and the regulations promulgatedthereunder. The very same argument appeared in Respondent's Replybrief. (Resp. App. pg. 180). The trial court found this argument to bepersuasive, and likewise cited to Lopez and Jelsing in reaching itsconclusion. As such, no new argument was presented by Respondents'Reply brief. Even if new argument did appear in Respondents' Replybrief, Appellant does not demonstrate that it had any impact on the trialcourt's ruling.

Accordingly, this issue presented does not show that the trial courtcommitted prejudicial error and therefore fails to provide a basis forreversal. See generally Cassim v Allstate Ins. Co. Cal. 4th 780, 800-

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803 (2004) (explaining that an appellate court may only reverse a trial courtruling upon a showing ofprejudicial error).

3. Appellant's Third Issue PresentedAppellant's third issue presented contends that the trial court erred

in taking judicial notice of the two recorded Assignments and accepting[them] as true. (Opening Briefpg. 16). Appellate courts review a trialcourt's ruling on a request for judicial notice for abuse of discretion.Fontenot v Wells Fargo Bank, NA. 198 Cal. App. 4th 256,264 (2011)

As explained in Fontenot, a court may take judicial notice ofrecorded title documents, such as assignments of deeds of trust. d. Morespecifically, a court may take judicial notice of the fact of a document'srecordation, the date the document was recorded and executed, the partiesto the transaction reflected in a recorded document, and the document'slegally operative language, assuming there is no genuine dispute regardingthe document's authenticity. d. at 265. From this, the court may deduceand rely upon the legal effect of the recorded document, when that effect isclear from its face. d. at 265.

Since the 1st Assignment and 2nd Assignment are both recordeddocuments, it was appropriate for the trial court to take judicial notice ofthem. In opposing Respondents' request for judicial notice of theAssignments, Appellant objected on the grounds that the Assignmentssupposedly lacked foundation, incorporated hearsay, and containedstatements that were not based on personal knowledge. (Resp. App. pgs.167-168). Appellant makes substantially similar arguments in his OpeningBrief. However, these objections have no bearing upon the judicial

1 Respondents cannot fathom Appellant's suggestion that, since Californialaw does not require assignments of a deed of trust to be recorded, such aKYL SF623649 - 17-


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shadow of a doubt, of who the 'note holder' is. (Opening Briefpg. 21).However, as the trial court correctly held, it is well-settled that possessionof a promissory note is ot a pre-requisite to foreclosure. See Schuster 211Cal. App. 4th at 511-12 ( California's statutory nonjudicial foreclosurescheme( 2924-2924k) does not require that the foreclosing party have abeneficial interest in or physical possession of the note. ); Debrunner 204Cal. App. 4th at 440-42. Appellant has not cited any contrary authority,and is asking this Court to issue a ruling that directly contradicts the fullweight of precedent.

Accordingly, Appellant's fourth issue presented is entirelybaseless. To the extent any of Appellant's claims are premised upon theassertion that one or more Respondents lacked physical possession of thePromissory Note, they fail as a matter of law.

5. Appellant's Fifth Issue Presented

According to Appellant's fifth issue presented, the trial court erredwhen it did not rule that the NOD was void. Appellant contends that theNOD was void because: (1) it purportedly did not include certain languageregarding a borrower's right to contest acceleration and sale (Opening Briefpg. 21); (2) the DOT purportedly provides that only the Trustee shallrecord a notice of default and sale (Opening Briefpg. 22); (3) Fannie Maesupposedly did not hold the Promissory Note when the NOD was recorded(Opening Briefpg. 22); (4) under California law, only trustees may issueand record notices of default (Opening Briefpg. 24); and (5) there wassomehow a triable issue of fact as to whether QLSC was acting as agent forthe beneficiary when it issued the NOD (Opening Briefpg. 25). Each ofthese assertions will be addressed in tum.

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Similarly, California courts do not entertain preemptive challengesto an entity's authority to initiate foreclosure. See Siliga v Mortg.Electronic Registration Systems Inc. 219 Cal. App. 4th 75, 82-83 (2013).A challenge is preemptive if the plaintiff sets forth no specific factualbasis for the claim that the foreclosure was not initiated by the correctperson. Id. at 82. Here, Appellant has offered no specific factual basis forhis assertion that QLSC lacked the authority to act as agent of thebeneficiary and record the NOD. For this additional reason, Appellant'scontention fails.

Finally, as argued by Respondents in the trial court, Appellant hasnot demonstrated that he was prejudiced by any purported defect in theNOD. (Resp. App. pg. 178). As stated in Aceves absent prejudice, allegedirregularities do not warrant relief. See Aceves 192 Cal. App. 4th at 232.Appellant attempts to distinguish Aceves from the instant case onunintelligible grounds, but it is well-settled that prejudice is a prerequisiteto seeking relief on the basis of purported procedural irregularities inforeclosure. See e.g. Fontenot 198 Cal. App. 4th at 272 ( [A] plaintiff ina suit for wrongful foreclosure has generally been required to demonstratethe alleged imperfection n the foreclosure process was prejudicial to theplaintiffs interests. ). Here, Appellant dmits that he ceased making loanpayments and triggered the power of sale in the DOT, and there is noallegation or evidence that foreclosure would have been avoided in theabsence of the purported defects in the NOD. Since Appellant has offeredno evidence of a prejudicial procedural defect in the NOD, any claimpremised upon the assertion that the NOD was void fails as a matter oflaw.

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In light of the foregoing, Appellant's fifth issue presented does notshow the existence of a triable issue ofmaterial fact, nor that the trial courtcommitted prejudicial error.

6. Appellant's Sixth Issue PresentedAppellant's sixth issue presented contends that the trial court erred

in fmding that QLSC was acting as agent of the beneficiary when itrecorded the NOD. (Opening Briefpgs. 28-30). However, as alreadydiscussed supra Appellant has not shown the existence of a triable issue ofmaterial fact as to QLSC's agency. See Section VII(B)(5), supra. First,Respondents have provided evidence that QLSC was acting as anauthorized agent, and Appellant has offered no evidence to the contrary.Second, Appellant may not preemptively challenge QLSC's authority toparticipate in foreclosure absent a specific factual basis. Third, Appellanthas not provided any evidence that he was prejudiced by QLSC'srecordation of the NOD.In light of the foregoing, Appellant's sixth issue presented doesnot demonstrate the existence of a triable issue ofmaterial fact or that thetrial court committed prejudicial error, and Appellant therefore fails toprovide a basis for reversal.

7 Appellant's Seventh and Eighth Issues PresentedAppellant's first three causes of action are largely premised upon the

theory that Respondents and QLSC could not foreclose on the SubjectProperty because they allegedly did not have physical possession ofAppellant's Promissory Note. As noted above, Appellant's theory fails fortwo independent reasons. First, a foreclosing entity does not need tophysically possess a promissory note. Second, Respondents have offeredsubstantial evidence that Respondents i possess the original PromissoryKYL SF623649 -23-


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Note. The trial court noted that one such piece of evidence was the fact thatAppellant had been presented with the original Promissory Note at hisdeposition and acknowledged that the signature on that document appearedto be his. (Resp. App. pg. 196).

Appellant's seventh issue presented appears to contend that thetrial court erred when it found that plaintiff was presented with an originalpromissory note[ ... ] at his deposition ... (Opening Briefpg. 30).Similarly, Appellant's eighth issue presented asserts that the trial courterred when it found that Appellant had attested at that deposition that thesignature appearing on the original Promissory Note appeared to be his.(Opening Briefpg. 32). Even if Appellant is correct, however, this doesnot show the existence of a triable issue of material fact or that the trialcourt committed prejudicial error.

Appellant's assertion that Respondents cannot foreclose withoutphysical possession of the Promissory Note contradicts well-settledprinciples oflaw. See Section VII(A)(l), supra Additionally, Appellant'sadmission at his deposition s not the only evidence demonstrating thatRespondents had physical possession of the original Promissory Note. Forexample, Appellant acknowledged in the First Amended Complaint thatRespondents had provided him with a copy of the original Promissory Notein August 2010. (Resp. App. pg. 011). As such, the issues of a) whetheror not Appellant was actually presented with the original Promissory Noteat his deposition and (b) whether or not Appellant actually attested to hissignature are immaterial. Appellant's claims still fail as a matter of law.

For the foregoing reasons, Appellant's seventh and eighth issuespresented do not show the existence of a triable issue of material fact orthat the trial court committed a prejudicial error.

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8. Appellant's Ninth Issue PresentedAppellant's ninth issue presented is incredibly vague, but appears

to contend that the trial court erred in utilizing a discovery facilitator inconnection with ruling on Appellant's Motion to Compel Production ofDocuments and Further Responses to Interrogatories. (Opening Briefpg.33). Appellant offers no argument demonstrating that the trial court's useof a discovery facilitator was procedurally improper or in any wayprejudicial to Appellant. In fact, Appellant provides no discussion as tohow the trial court's use of a discovery facilitator affected the outcome ofthe Motion at all. Instead, Appellant merely sets forth an incomprehensiblediscussion ofCalifornia Code of Civil Procedure section 473(b) and directsthis Court to review the arguments asserted in a motion filed with the trialcourt. (Opening Briefpgs. 33-35).

This issue presented should be disregarded for two reasons. First,it is unintelligible. Failure to make a coherent argument or to cite tosupporting authority for contentions constitutes a waiver of an issue onappeal. See Berger v Cal Ins. Guarantee Assn. 128 Cal. App. 4th at 1007.Second, while Appellant directs this Court to read a pleading filed with thetrial court for further argument, an appellant may not simply incorporateby reference arguments made in papers filed in the trial court, rather thanbriefing them on appeal. Keyes v Bowen 189 Cal. App. 4th 657, 565(2010).

Since Appellant does not explain how the use of a discoveryfacilitator constituted an abuse of the trial court's discretion or aprejudicial error of any kind, his ninth issue presented fails to provide abasis for reversal. See In reIns. Installment Fee Cases 2 Cal. App. 4th1395, 1425 (2012) ( Management of discovery generally lies within the

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sound discretion of the trial court. (internal quotations omitted)).Moreover, this issue has no bearing on the trial court's ruling on thesummary judgment motion and fails to establish that there was a triableissue of fact in this case.

9. Appellant's Tenth Issue PresentedIn Appellant's Statement ofObjections and Request for Decision

( Statement ofObjections ), he objected to three statements regarding therecordation of certain documents set forth in the Declaration of Juan C.Sierra ( Sierra Declaration ) filed in support of the Motion. (Resp. App.pgs. 168-170). First, Appellant objected to Mr. Sierra's declaration that theNOD was recorded. (Resp. App. pg. 170). Second, Appellant objected toMr. Sierra's declaration that the 2nd Assignment was recorded. (Resp.App. pg. 170). Third, and fmally, Appellant objected to Mr. Sierra'sdeclaration that the SOT was recorded. (Resp. App. pg. 170). Each ofAppellant 's objections were made on various grounds, including lack offoundation and lack ofpersonal knowledge. (Resp. App. pg. 170). Thetrial court, however, overruled each objection, explaining that it had alreadytaken judicial notice of the NOD, 2nd Assignment and SOT such thatAppellant's objections were moot. (Resp. App. pg. 194).

Appellant's tenth issue presented contends that the trial court erredwhen it judicially noticed the fact of recordation of the NOD, 2ndAssignment and SOT. (Opening Briefpg. 35). However, as alreadydiscussed, California courts may judicially notice the fact of recordation.See Fontenot, 198 Cal. App. 4th at 265 ( [A] court may take judicial noticeof the fact o a document's recordation .... ). Accordingly, the trial courtdid not abuse its discretion in judicially noticing that the NOD, 2nd

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dispute in the trial court, the trial court does not err in taking judicialnotice of that document. ee id Here, Appellant did not show or evenargue that the FDIC Webpage was subject to reasonable dispute in the trialcourt. Accordingly, Appellant has not demonstrated that the trial courtabused its discretion in taking judicial notice of the document. ee id

Additionally, Appellant does not in any way demonstrate how takingjudicial notice of the FDIC Webpage prejudiced him or had any impact onthe outcome of the Motion.

For the foregoing reasons, Appellant's tenth issue presented doesnot show that the trial court abused its discretion in taking judicial notice ofthe documents at issue.

10. Appellant's Eleventh Issue PresentedAppellant's eleventh issue presented contends that the trial court

erred when it found that Appellant had submitted as part of his ownopposition evidence a trustees' sale guaranty showing defendant JP Morgans being the deed of trust beneficiary of record. (Opening Briefpg. 38).

The trial court was referring to Exhibit C of the Declaration ofLeightonLee Perry, which was filed in support ofAppellant's Opposition to theMotion. (Resp. App. pgs. 195-196). According to Appellant, Exhibit Cwas a compilation of two non-consecutive pages ofChase's response to adiscovery request, depicting Trustees' Sale Guarantee y Stewart TitleCompany for the Beneficiary JPMorgan Chase Bank, N.A. dated6115/2010. (Resp. App. pg. 151). The second page of this Exhibit listsQLSC and Chase as the trustee and beneficiary, respectively, of the DOT.(Resp. App. pg. 157).

Appellant argues that the excerpt of the Trustee's Sale Guaranteedoes not constitute evidence that Chase was the beneficiary of the DOT,

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explaining that in actuality'' the Trustee's Sale Guarantee also identified adistinct investor separate from the beneficiary, such that it is uncertainwho declared a default. (Opening Briefpg. 38). If this is true, it appearsnowh r in the excerpt of the Trustee's Sale Guarantee attached toAppellant's Declaration. (Resp. App. pgs. 156-157). As such, it seemsAppellant is referring to facts that were not presented to the trial court andthat cannot be considered on appeal. See Premier Medical ManagementSystems Inc. v California Insurance Guarantee Association 63 Cal. App.4th 550, (2008) ( [W]e ignore arguments, authority, and facts not presentedand litigated in the trial court. Generally, issues raised for the first time onappeal which were not litigated in the trial court are waived. ) (internalquotations omitted).

In light of the foregoing, the exhibits attached to Appellant'sDeclaration must be accepted as-is. On its face, the excerpt of the Trustee'sSale Guarantee produced by Appellant stated that Chase was thebeneficiary of record. Thus, Appellant's eleventh issue presented doesnot show the existence of a triable issue ofmaterial fact or that the trialcourt committed prejudicial error, and fails to provide a basis for reversal.

11. Appellant's Twelfth Issue PresentedAppellant's twelfth issue presented merely contends that

[r ]esolution of the Fourth cause of action is precedent to determining theremaining causes of action. (Opening Briefpg. 39). Appellant offers noexplanation of this statement and, as such, this Court should disregard it.See Mansell v Bd. o Admin. 30 Cal. App. 4th 539, 545 (1994) ( [A]nappellate brief should contain a legal argument with citation of authoritieson the points made. If none is furnished on a particular point, the court

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may treat it as waived, and pass it without consideration. (internalquotations omitted)).

To the extent Appellant argues that his claims for declaratory relief,slander of title, and quiet title rely entirely upon his claim for violation ofCalifornia Civil Code section 2943, Appellant is only confirming thepropriety of granting the Motion. Indeed, as demonstrated in the Motionand in this brief, section 2943 is preempted by federal law and, as such,Appellant's claim under that section fails as a matter oflaw.

Appellant's twelfth issue presented therefore does not show thatthe trial court committed prejudicial error and fails to provide a basis forreversal. See generally Cassim Cal. 4th at 800-803.

12. Appellant's Thirteenth Issue PresentedAppellant's thirteenth issue presented is incomprehensible, and

this Court should pass it without consideration. See Berger v Cal. Ins.Guarantee Assn. 128 Cal. App. 4th at 1007.The section header reads: Did the trial court deny Appellant dueprocess by allowing new significant argument regarding diversityjurisdiction of the court in a reply to a summary judgment motion?(Opening Brief pg. 39). t is not at all clear what Appellant means by this.The trial court did not entertain new significant argument regardingdiversity jurisdiction in a reply brief. The principle of diversity

jurisdiction has no place in this litigation, and no reference to the principlewas made in Respondent's Reply brief.

The subject header is followed by a brief discussion ofwhetherCalifornia Civil Code section 2943 is preempted by federal law. (OpeningBrief pg. 39). This issue is thoroughly discussed elsewhere in this brief.See Section VII(A)(4), supra.

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Appellant next asserts that he was unduly prejudiced when the trialcourt opted not to issue a tentative ruling on his discovery motions and todeliver the final rulings on those motions to the parties via regular mail.(Opening Briefpg. 40). Appellant does not provide any authoritydemonstrating that this conduct constituted error-i.e. no authorityrequiring courts to deliver fmal rulings to parties via any means other thanregular mail and no authority requiring courts to publish tentative rulings.3Additionally, Appellant does not draw any causal connection between thetrial court's purported conduct and any alleged prejudice.

For the foregoing reasons, Appellant's thirteenth issue presenteddoes not show the existence of a triable issue ofmaterial fact or that thetrial court committed prejudicial error, and fails to provide a basis forreversal.

13. Appellant's Fourteenth Issue PresentedAppellant's fourteenth issue presented appears to be yet anotherattempt to argue that California Civil Code section 2943 is not preempted

by federal law. (Opening Briefpg. 41). The issue of federal preemptionhas been thoroughly discussed elsewhere in this brief, and it has beendemonstrated that the trial court correctly found that section 2943 ispreempted y federal law. See Section VII(A)( 4), supra Accordingly,Appellant's fourteenth issue presented does not provide a basis forreversal.

3 In fact, the California Rules ofCourt expressly do ot require judges toissue tentative rulings. See Cal. R Court 3.1308(e).

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Indeed, [o]n hearing such a motion the court is without power to makefindings of fact. d.

Since Appellant's last-minute request for a statement of decision wasprocedurally improper, Appellant cannot argue that the trial court'sfailure to accommodate the request constituted a reversible error.

2 The Trial Court Did Not Award RespondentsEquitable Relief' by Granting the MotionHere, Appellant again asserts that the trial court somehow awarded

Respondents equitable relief by granting the Motion, and argues that thetrial court lacked jurisdiction to do so. (Opening Briefpg. 44). Appellantappears to be asserting that the trial court could not grant Respondents'Motion until Respondents offered evidence that they had paid considerationfor the Subject Loan and/or DOT, but Appellant offers no authoritysupporting such a proposition. Moreover, as already discussed, in grantingRespondents' Motion, the trial court did not grant Respondents equitablerelief. Rather, the trial court merely determined that Appellant had failedto demonstrate the existence of a triable issue ofmaterial fact and thatAppellant was not entitled to the relief he was seeking as a matter of law.Since Appellant's argument is unsupported by authority or reason, thisCourt should disregard it. See Berger v Cal. Ins. Guarantee Assn., 128Cal. App. 4th at 1007 (holding that failure to make a coherent argument orcite any authority to support a] contention [... ] constitutes a waiver of theissue on appeal ).

3. California Civil Code Section 2943 is Preempted byFederal LawOn Appeal, Appellant now argues that California Civil Code section

2943 is not preempted by the Real Estate Settlement Procedures Act

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( RESPA ) or the Truth-in-Lending Act ( TILA ). (Opening Briefpgs.44-46). As a preliminary matter, Appellant did not make this argument inthe trial court. As such, Appellant cannot raise this argument on appeal.See Kern 209 Cal. App. 4th at 1038. In any event, even if it is correct thatsection 2943 is not preempted by RESP A or TILA, s Appellant nowargues, this does not mean that section 2943 is not preempted by oth rfederal law. Indeed, as argued in Respondents' moving papers, in thisaction section 2943 is preempted by HOLA and regulations issuedthereunder. See Section VII(A)(4), supra. Accordingly, this point does notdemonstrate the existence of a triable issue ofmaterial fact, an abuse ofdiscretion, or a prejudicial error of any kind.

4. Appellant Does Not Have a Legal Basis for anAction Challenging Respondents Authority toForecloseAppellant next argues that the contract language both authorizes

and obligates the borrower to question the authority of a beneficiary whoattempts to slander the clear title to the Subject Property. (Opening Briefpg. 46). Once again, whether the DOT or Subject Loan authorizedAppellant to bring this lawsuit was not an issue before the trial court, andcannot be raised here. See Kern 209 Cal. App. 4th at 1038.

Even ifAppellant could raise this issue on appeal, Appellant iscompletely misconstruing the language of the DOT. Appellant appears tobe relying on the following language found within the DOT:

BORROWER COVENANTS that Borrower islawfully seised of the estate hereby conveyedand has the right to grant and convey theProperty and that the Property is unencumbered,except for encumbrances of record. Borrowerwarrants and will defend generally the title tothe Property against all claims and demands,

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subject to any encumbrances of record.(Resp. App. pg. 057). See Opening Briefpg. 18). This language does notauthorize or obligate a borrower to question the authority of abeneficiary, as Appellant erroneously suggests. Rather, the covenant ofwarranty and defense in a deed conveying any interest in land is anundertaking by the warrantor, that on the failure of the title which the deedpurports to convey[ ..] that [the warrantor] will make compensation inmoney for the loss sustained by such failure of title. Tropico andJmprov. Co v Lambourn, 170 Cal. 33, 38 (1915).

Even assuming, arguendo, that the DOT authorizes Appellant toquestion the authority of a beneficiary, this would not mean that

Appellant's case has any merit. Indeed, as demonstrated by Respondent'smoving papers and throughout this Brief, Appellant's case has no merit andall of his claims fail as a matter oflaw.IIIIIIIIIIIIIIIIIIIIIIIIIIII

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VIII. CONCLUSIONFor the reasons set forth in this Brief, Appellant has given this Court

no reason to reverse the trial court s ruling on Respondent s Motion.Indeed, Appellant has failed to demonstrate the existence of any triableissue ofmaterial fact, and has failed to dispute that Respondents are entitledto judgment as a matter oflaw. Additionally, Appellant has not shown thatthe trial court abused its discretion or committed any prejudicial errors ofany kind. Accordingly, Respondents respectfully request that this Courtaffirm the trial court s judgment in its entirety.

Dated: February 6 2014

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JOHN COXIAN ROSSKEESAL, YOUNG LOGANAttorneys for RespondentsJPMORGAN CHASE BANK, N.A.,for itself and as successor by mergerto CHASE HOME FINANCE LLC,and FEDERAL NATIONALMORTGAGE ASSOCIATION

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WORD COUNT CERTIFIC TIONI, IAN ROSS, certify that the foregoing brief contains 9,948 words.

Dated: February 6, 2014

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JOHN COXIAN ROSSKEESAL, YOUNG LOGANAttorneys for RespondentsJPMORGAN CHASE BANK, N.A.,for itself and as successor by mergerto CHASE HOME FINANCE LLC,and FEDERAL NATIONALMORTGAGE ASSOCIATION

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I declare that I am employed in the office of a member of the bar of this Court at whosedirection the service was made

Maria Cefina M Schilt

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