June 22, 2011

In an 11-page Order dated June 2, 2011, the United States District Court for the Central District of California has denied JPMorgan Chase Bank’s Motions to dismiss a borrower’s claims for violations of CA Civ. Code 2923.5, Wrongful Foreclosure, Quiet Title, Quasi Contract, Declaratory Relief, and Injunctive Relief in the matter of Javaheri v. JPMorgan Chase Bank, Case No. CV10-08185 ODW. The decision cites case law from the United States Supreme Court, the United States Court of Appeals for the 9th Circuit, and California state courts.

The borrower filed a Second Amended Complaint for numerous causes of action including those identified above. The loan had been originated by Washington Mutual Bank (WaMu), with the loan thereafter being securitized. JPM relied upon the Purchase and Assumption Agreement between JPM and the FDIC as Receiver for WaMu, contending that it had succeeded to all of WaMu’s assets, including the borrower’s note. (Significantly, and although not mentioned in the Javaheri Order, JPM has affirmatively represented to the United States District Court for the District of Columbia in separate Federal litigation that it is NOT the “successor in interest” to WaMu, and that it only purchased certain assets of WaMu from the FDIC.)

The borrower claimed that between November 13 and 30, 2007, WaMu transferred his Note to Washington Mutual Mortgage Securities Corporation and that the Note was sold to an investment trust and became part of a loan pool, PSA, CDO, mortgage-backed security or pass-through certificate, credit default swap, investment trust, and/or a special purpose vehicle. The loan was identified with a CUSIP number and the pool number. The court found that “Coupled with Plaintiff’s allegation that JPMorgan never properly recorded its claim of ownership in the subject property, the above mentioned facts regarding the transfer of Plaintiff’s Note prior to JPMorgan’s acquisition of WaMu’s assets raise Plaintiff’s right to relief above a speculative level”, warranting denial of JPM’s Motions to Dismiss as to the claims set forth above.

One of the more interesting theories raised was the “Quasi Contract” claim, where the borrower alleged that JPM was unjustly enriched by any payments made by the borrower to JPM which were not paid to the lender or beneficiary. The Court concluded, for purposes of pleading, that “if indeed JPMorgan did not own the Note yet received payments therefrom, those payments may have been received unjustly”. We believe that if in fact JPM fraudulently represented to the borrower that it did own or have rights to collect monies under the Note when in fact it did not, this would support a fraud-based claim as well.

The Court specifically found that “in the face of these specific factual allegations (by the borrower as to the securitization of the loan) JPMorgan’s assertion that the P&A Agreement suffices to establish their ownership of the Note is no longer viable. Indeed, the P&A Agreement does not specifically identify Plaintiff’s Note.” 

That quote exemplifies a central issue we have been confronted with in the numerous Chase/WaMu cases we have in litigation in various states: Chase claims to be the “successor in interest” to WaMu by virtue of its “acquisition” of the “assets” of WaMu, when in fact no such wholesale “acquisition” of mortgage loans across the board ever occurred, as evidenced in Javaheri and in the Federal litigation in the District of Columbia. Honestly, does JPM think that it can get away with taking one position in its contract and in “East Coast” Federal litigation and take a completely contradictory position in California Federal court?

Jeff Barnes, Esq.,