Ulloa v. JPMorgan Chase Bank

 

 

 

 

 

 

 

 

 

 

 

Filed 9/3/13  Ulloa v. JPMorgan Chase Bank CA4/2

 

 

 

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

RAUL MUNOZ ULLOA,         Plaintiff and Appellant,               v.   JPMORGAN CHASE BANK, N.A. et al.,         Defendants and Respondents.

G047232            (Super. Ct. No. 30-2011-00456923)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, James Di Cesare, Judge.  Affirmed.

                        Raul Munoz Ulloa, in
pro. per., for Plaintiff and Appellant.

                        AlvaradoSmith, Theodore
E. Bacon and Mikel A. Glavinovich for Defendants and Respondents.

*                      *                      *

                        Raul Munoz Ulloa filed
this action against various entities associated with a loan he obtained in 2006
to buy a Santa Ana apartment
building.  All but one of his claims were
winnowed out in a sustained demurrer, and the remaining cause of action was
then the subject of a successful motion
for summary judgment.  Ulloa has now
appealed from the ensuing judgment.  Much
of his appeal centers on the legal authority of the trial judge to dismiss his
claims prior to a jury trial.  As we
explain below, the trial judge acted within his legal authority and acted
correctly.  We affirm.

FACTS

                        In April 2006, Ulloa
purchased an apartment building on Broadway in Santa Ana,
borrowing $640,000 from Alliance Bancorp. 
Thereafter the loan was transferred to JP Morgan Chase Bank (hereafter,
Chase).  Sometime prior to December 2008
Ulloa stopped making regular payments, and a foreclosure sale was set for March 16, 2011.  Ulloa was unable to obtain a loan
modification, but five days before the scheduled sale, on March 11, 2011, he filed this action against
Chase and a group of other entities related to the servicing of his
mortgage.  Ulloa obtained a temporary
restraining order, but the restraining
order was dissolved when the trial court denied his request for a
preliminary injunction on July 1. 
According to respondent’s brief, the property remains unsold to this
day.

                        Ulloa’s complaint
alleged these causes of action:  (1)
intentional fraud; (2) violation of section 2923.5 of the Civil Code; (3)
declaratory relief; (4) intentional infliction of emotional distress; (5)
promissory note; and (6) unfair competition.  
Chase and the other defendants demurred to all these causes of
action.  The trial court sustained the
demurrer to all the causes of action except the one for violation of Civil Code
section 2923.5.  A summary judgment
motion followed.  The motion was
supported by the declaration of Carlos Barrios, a senior loan research
specialist at Chase.  Barrios’
declaration recounted that Chase’s business records showed that in the period
October through November 2008, Ulloa applied for a loan modification, and
representatives of Chase (then WaMu) discussed alternatives to foreclosure with
him.  The summary judgment motion was
granted, disposing of Ulloa’s remaining cause of action.  Judgment was entered in June 2012, and this
appeal timely followed.

DISCUSSION

                        Ulloa’s main argument in
this appeal is that the trial judge, the Honorable James Di Cesare, somehow
overstepped his proper authority in his various rulings against Ulloa, because
Judge Di Cesare is a mere “magistrate” and therefore somehow was not acting on
behalf of a “court of record.”  Suffice
to say, Judge Di Cesare is most assuredly a judge of the Orange County Superior
Court, and his court is indeed one of “record.” 
(See, e.g., Bell v. Feibush
(2013) 212 Cal.App.4th 1041; State of
California ex rel. Dockstader v. Hamby (2008) 162 Cal.App.4th 480; >Brodke v. Alphatec Spine Inc. (2008) 160
Cal.App.4th 1569; cf. Cal. Const., art. VI, § 1 [“The judicial power of this
State is vested in the Supreme Court, courts of appeal, and >superior courts, all of which are courts
of record.” (Italics added.)].)

                        It is possible that
Ulloa, proceeding in propria persona,
is confused about the word “magistrate.” 
In the federal courts, the word “magistrate” can suggest a subordinate
judicial officer analogous to a commissioner in state courts.  (See Baker, The Expanding Power of Magistrate Judges in Federal Courts (2005)
39 Val. U.L. Rev. 661, 664.)  In California
law, the word “magistrate” is a legal term of art referring to >all judges – including the members of
this court, the superior courts (including Judge Di Cesare) and even of California’s
Supreme Court – in the exercise of their power to issue arrest warrants in
criminal cases.  (Pen. Code, §§ 807,
808.)  But, as Ulloa must acknowledge, his
lawsuit is not a criminal case.  Judge Di
Cesare might function as a “magistrate” in the event he had to issue an arrest
warrant, but he was certainly functioning as a judge when he ruled on Chase’s
demurrer and summary judgment motion.

                        Turning to the substance
of Judge Di Cesare’s rulings, Ulloa seems to assume that a series of documents
he sent to Chase and other entitieshref="#_ftn1"
name="_ftnref1" title="">[1]
in January 2011 constituted a “qualified written request” under a federal law
known as “RESPA” (the Real Estate Settlement and Procedures Act (12 U.S.C.
§§ 2601, et seq.) and somehow bound Chase to various facts and assertions
unilaterally stated in them, because Chase did not respond to his documents
within 20 days.href="#_ftn2" name="_ftnref2"
title="">[2] 

                        As it happens, though,
this court very recently addressed the ramifications of qualified written
requests in Jenkins v. JP Morgan Chase
Bank, N.A. (2013) 216 Cal.App.4th 497. 
As Presiding Justice O’Leary explains in Jenkins, there are no cognizable claims under RESPA unless a
plaintiff pleads facts showing the suffering of actual “pecuniary damages”
because of a failure to respond.  (>Id. at pp. 531-532.)  Moreover, any harm must come from the
violation of RESPA itself, as
distinct from the default on a loan and subsequent foreclosure.  (Id.
at p. 532.)  From these rules it follows
that the absence of a response from Chase to Ulloa’s documents within a certain
amount of time in no way created a series of facts binding on Chase in this
litigation.  Most tellingly, we note that
Ulloa makes no attempt to allege that he has kept up the payments on his
mortgage and thus has a right to keep the property.  In fact, in his own separate statement of
undisputed facts submitted in opposition to Chase’s summary judgment motion,
Ulloa admitted it was undisputed that he has not been able to make the
payments.

                        Rather, Ulloa seems to
be arguing that his property is immune to foreclosure on the theory that Chase
has not “established” that it now actually owns the loan.  But his own statement in his complaint
refutes that.  (From paragraphs 20 and
22:  “Raul [Ulloa] acquired a loan with
Alliance Bancorp on June 1, 2006 for the amount of $640,000
 . . . .   Loan was transferred to JP formally
[sic:  should be formerly] known as,
Washington Mutual.”) 

                        And if that’s not
enough, sufficient evidence was provided in Chase’s motion for summary
judgment.  In that motion Chase submitted
a request for judicial notice of various records recorded in the Orange County
Recorder’s office.  Those records show a
deed of trust from Ulloa recorded June 1, 2006 to Lawyer’s Title Company as
trustee, with Mortgage Electronic Registration Systems, Inc. (“MERS”) as the
nominee for lender Alliance, and Alliance’s successors and assigns.  The next document is an assignment, recorded
December 24, 2008, of Ulloa’s deed of trust from MERS to La Salle Bank, itself
the trustee for Washington Mutual Mortgage Pass-Through Certificates WMALT
Series 2006-AR06 Trust.  In conjunction
with these documents, Chase submitted the declaration of Carlos Barrios, one of
its senior loan research specialists, which recounted Chase’s business records
showing Chase acquired assets of Washington Mutual (WaMu) when WaMu failed, and
in September 2008 Chase became the servicer of Ulloa’s loan. 

                        In short, while Chase’s
authority to foreclose on Ulloa’s unpaid loan is the final product of a complex
series of transfers, there is no basis on which to conclude that authority does
not exist.  And since Chase is the
servicer of Ulloa’s loan, there can be no question it has legal standing to
initiate nonjudicial foreclosure proceedings. 
(See Jenkins, supra, 216
Cal.App.4th at pp. 515-516.) 

                        Ulloa also disputes the
propriety of the summary judgment motion, focusing on Barrios’ lack of personal
knowledge, i.e., that his declaration is technically hearsay.  Proceeding as his own attorney, perhaps Ulloa
is unaware of the business records exception to the hearsay rule set out in
section 1271 of the Evidence Code.  The
basic reason for the business records exception to the hearsay rule is to avoid
the time-consuming business of requiring every single individual in an
organization who might have handled a given transaction to come to court and
give oral testimony.  (Nichols
v. McCoy (1952) 38 Cal.2d 447, 449-450 [“‘It is the object of the business
records statutes to eliminate the necessity of calling each witness, and to
substitute the record of the transaction or event.’ . . . . Accordingly, it was
unnecessary to call the witness who supplied the embalmer with the information
he recorded.”].)  Barrios’ declaration
readily passes the requirements for the business records exception.  The documents showing Chase ultimately
acquired Ulloa’s loan were all made in the regular course of a business at the
time of the transfer.  Barrios is
certainly qualified to testify to them – researching loan documents is his
full-time job.  And records showing what
banks do and do not own are archetypically trustworthy, because they constitute
some of the very assets which allow the banks to continue to do business.href="#_ftn3" name="_ftnref3" title="">[3] 

                        As to the merits of the
summary judgment motion, Barrios’ declaration recounted how Chase’s business
records showed that in October 2008 representatives of Chase discussed
foreclosure alternatives with Ulloa over the telephone and provided Ulloa with
WaMu and Department of Housing and Urban Development contact numbers.  Additionally, Chase took a loan modification
application from Ulloa in September 2008, though it was rejected in November
2008.  This was more than enough to
satisfy section 2923.5.  (See >Mabry v. Superior Court (2010) 185
Cal.App.4th 208, 232 [to avoid federal preemption, requirements under section
2923.5 “must necessarily be simple” and do not require a lender “to become a
loan counselor” itself].)  Ulloa
submitted nothing to controvert Barrios’ declaration and create a triable issue
of fact on the question of whether he really was so contacted, so the grant of
summary judgment was correct.

DISPOSITION

                        The
judgment is affirmed.  Chase is to
recover its costs on appeal.

 

 

                                                                                   

                                                                                    BEDSWORTH,
ACTING P. J.

 

WE CONCUR:

 

 

 

MOORE, J.

 

 

 

FYBEL, J.