sacchi 5-2-11am bright sac chi final2

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ANGELA SAACHI VS.

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

Transcripts from May 2, 2011



1

1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

3 HONORABLE A. HOWARD MATZ, U.S. DISTRICT JUDGE

4 - - -

5

COPY

)

6 DIANE WELLS GUERRERO, )

)

7 PLAINTIFF, )

vs. ) No. CV11-1038-AHM(JCx)

8 )

FIRST NLC FINANCIAL SERVICES, )

9 ET AL., )

)

10 DEFENDANTS. )

___________________________________)11 ANGELA SACCHI, ET AL., )

)

12 PLAINTIFFS, )

vs. ) No. CV11-1658-AHM(CWx)

13 )

MORTGAGE ELECTRONIC SYSTEMS, INC., )

14 ET AL., )

)

15 DEFENDANTS. )

___________________________________)

16

17 REPORTER'S TRANSCRIPT OF PROCEEDINGS

18 LOS ANGELES, CALIFORNIA

19 MONDAY, MAY 2, 2011

20 10:15 A.M.

21

22 _____________________________________

23 CINDY L. NIRENBERG, CSR 5059

U.S. Official Court Reporter

24 312 North Spring Street, #438

Los Angeles, California 90012

25 www.cindynirenberg.com

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

BACK



2

1 APPEARANCES OF COUNSEL:

2 CV11-1038-AHM(JCX), DIANE WELLS GUERRERO VERSUS

FIRST NLC FINANCIAL SERVICES, ET AL.:

3

FOR THE PLAINTIFF DIANE WELLS GUERRERO (NOT PRESENT):

4 DIANE WELLS GUERRERO, PRO SE

6459 BIXBY TERRACE DRIVE

5 LONG BEACH, CA 90815

562-431-0980

6

7 FOR THE DEFENDANT THE BANK OF NEW YORK MELLON:

KUTAK ROCK

8 BY: CYRUS CHEN, ATTORNEY AT LAW

18201 VON KARMAN AVENUE

9 SUITE 1100

IRVINE, CA 92612

10 949-417-0999

11

12 CV11-1658-AHM(CWX), ANGELA SACCHI, ET AL. VERSUS

MORTGAGE ELECTRONIC SYSTEMS, INC., ET AL.:

13

FOR THE PLAINTIFFS SACCHI:

14 BROOKSTONE LAW

BY: DERON COLBY, ATTORNEY AT LAW

15 4000 MACARTHUR BOULEVARD

SUITE 1110

16 NEWPORT BEACH, CA 92660

800-946-8655

17

18 FOR THE DEFENDANTS AHMSI, MERS, POWER DEFAULT, RCS:

WRIGHT, FINLAY & ZAK

19 BY: TODD CHVAT, ATTORNEY AT LAW

4665 MACARTHUR COURT

20 SUITE 280

NEWPORT BEACH, CA 92660

21 949-477-5050

22

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25


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1 LOS ANGELES, CALIFORNIA; MONDAY, MAY 2, 2011

2 10:15 A.M.

3 - - - - -

4 THE CLERK: Calling Item Numbers 3 and 5, CV11-1038,

5 Diane Wells Guerrero versus First NLC Financial Services, et

6 al., and Item Number 5, CV11-1658, Angela Sacchi, et al. versus

7 Mortgage Electronic Systems, Inc., et al.

8 Counsel, state your appearances, please.

9 MR. CHEN: Good morning, Your Honor. Cyrus Chen on

10 behalf of defendant New York Bank Mellon on the Guerrero

11 matter.

12 THE COURT: Tell me your name again, please.

13 MR. CHEN: Cyrus Chen.

14 MR. CHVAT: Good morning, Your Honor. Todd Chvat

15 appearing on behalf of defendants AHMSI, MERS, Power Default

16 and RCS. So I am using abbreviations to save the Court some

17 time.

18 THE COURT: In the Sacchi matter?

19 MR. CHVAT: In the Sacchi matter, correct.

20 THE COURT: And tell me your name again.

21 MR. CHVAT: Todd Chvat.

22 THE COURT: Hold on a minute.

23 Okay. So who's your client, Mr. Chen?

24 MR. CHEN: It's the Bank of New York Mellon, Your

25 Honor.




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1 THE COURT: Okay. So you're in the Guerrero matter?

2 MR. CHEN: Correct.

3 THE COURT: And Ms. Guerrero is not here. Okay.

4 And your name?

5 MR. COLBY: Good morning, Your Honor. Deron Colby on

6 behalf of the plaintiffs Sacchi in the Sacchi matter.

7 THE COURT: Okay. All of you may be seated.

8 I called both matters at the same time because I'm

9 going to deal with them in the same way, but they are in

10 certain important respects different kinds of cases and they're

11 at a different procedural status.

12 Did the clerk distribute to you -- and now I'm asking

13 you, all three of you, as collective counsel -- the draft order

14 requiring subsequent submission?

15 MR. CHEN: Yes, Your Honor.

16 MR. CHVAT: Yes, Your Honor.

17 MR. COLBY: Yes, Your Honor.

18 THE COURT: All right. The background to that is

19 probably already clear to you, but the claims of the borrowers

20 in this case are replete with understandable and I think

21 pervasive confusion about to whom they might owe obligations

22 and who had any right, if anyone had a right, to initiate

23 foreclosure proceedings. This is a very vexing problem. And I

24 prepared written orders on the motions, and I've decided not to

25 circulate them.


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1 I'm going to deny the effort to lift the injunction

2 in the Sacchi case and grant the TRO in the Guerrero case

3 temporarily.

4 I want no efforts taken from here on forward, until

5 this matter is considered more carefully, to throw these

6 homeowners out of their residences, assuming that they're

7 currently there.

8 I can make all of the necessary findings. I'll do so

9 in a sweeping way that, based upon the current state of the

10 Court's -- of the pleadings and the Court's recognition, the

11 usual factors in weighing injunctive relief, especially the

12 irreparability of the injury, the public interests, clearly

13 favor the homeowners or the borrowers.

14 The probability of success is very different, but the

15 probability of success factor needs to be addressed from a new

16 perspective, and that's the second part of what I am ordering

17 the lawyers to do.

18 And just to explain that, in the Sacchi matter, the

19 borrower referred to the Salazar case, and that hasn't been

20 briefed by any of the lawyers representing the foreclosing

21 parties and the lenders and the assignees and the mortgage

22 services and the usual litany of absolutely baffling entities

23 that got involved in this horrendous mess.

24 The Salazar decision, which I have read this morning,

25 is the only decision that I'm currently aware of -- but you


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1 have an opportunity now to brief it -- that deals with the

2 confusion that is present in both of these cases and in

3 numerous other cases about who has rights to proceed to oust a

4 borrower from a residence in a home that's being foreclosed.

5 And without getting into the precise -- and there are

6 somewhat different issues that exist in these two cases, the

7 Guerrero case and the Sacchi case. I'm ordering the lawyers,

8 including the lawyer for Sacchi who cited this case in the

9 reply papers, to, on a considered basis, brief the impact of

10 Salazar.

11 Do so with respect to not just that case narrowly but

12 other emerging cases in this crisis-ladened foreclosure

13 national problem, including in other states that may have

14 provisions comparable to California's in the Civil Code and

15 elsewhere.

16 And in the meantime, I want -- and I know that I'm

17 not going to get any help, really, from Guerrero. She's pro

18 se, and she's floundering around like pro ses are almost

19 inevitably forced to do, but I still want the case to be

20 treated as if there were -- and there is -- an open question as

21 to what her rights are, if any.

22 None of this is a way of saying that I have any

23 particular bias in favor of the homeowner, particularly

24 somebody that took out a loan that was way beyond the

25 borrower's means and should have been perceived as totally


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1 improvident in the first place, but I don't have a basis to

2 make that finding here.

3 The other part of what you are required to do -- and

4 I hope you can do it by Friday, but if you think you need more

5 time, then please tell me -- is what I circulated in these

6 draft memos.

7 It is impossible, without spending an enormous amount

8 of time going through what is almost certainly going to be an

9 incomplete showing, to figure out what happened here and who's

10 proceeding in what claim of right and in whose shoes that may

11 have had a right previously.

12 So I want two things to be prepared. I want a

13 diagram to be prepared. And the sample that I gave you -- and

14 I want you to do it as counsel for Ms. Sacchi, Mr. Colby, too,

15 not just the lawyers for the defendants.

16 This is just a representative example, and it's meant

17 to do two things. One is to have the flow of key events set

18 forth in diagram form top to bottom, meaning vertically, and

19 the transfers of authority, of ownership, of servicing rights,

20 of foreclosure rights, of trustee ownership to be signified

21 through horizontal or diagonal flow chart that shows who got

22 into the picture when, on behalf of whom and in place of whom,

23 and then to have a chronology geared to the diagram.

24 And the only difference in the chronology -- the

25 numbers would be the same. Each block would have its own


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1 number, but the chronology, in order to avoid having too much

2 information incorporated into one of the blocks, the chronology

3 would specify the exhibit in the pleadings.

4 And I want the exhibits to be attached anew to the

5 chronology. Even if you filed them in your motion papers

6 previously, I want to see them now. And you can give them a

7 different number or a different letter, if you want, but I want

8 to see the documentation, and I want to see the flow chart

9 figuring out who fits in where and who's out and who's in and

10 at what point in time, as well as the ongoing sequence of key

11 events from the issuance of the loan or the execution of the

12 note or the Deed of Trust, which could be separate items. So

13 don't feel bound by the number system I have here. This is

14 just designed to give you an idea of what I'm looking for.

15 Are there any questions about the two things, the

16 chart, slash, diagram that -- I mean the chronology, slash,

17 diagram on the one hand and the analysis of Salazar on the

18 other that any of you wish to bring to my attention?

19 MR. COLBY: I had a question, Your Honor.

20 THE COURT: All right. Go to the lectern, please.

21 MR. COLBY: Thank you, Your Honor.

22 In these cases, one of the issues is where the Deed

23 of Trust went versus where the note went, so if I can make a

24 suggestion that our chart would include showing, if they took

25 different paths, where the Deed of Trust went and where the


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1 note went.

2 THE COURT: Oh, I would want that, yes.

3 Now, are you suggesting that should be done in two

4 different diagrams?

5 MR. COLBY: I think either they can be done

6 side-by-side, and if that doesn't work, if the boxes are too

7 small, we can do them in different diagrams.

8 Also, I would make the suggestion that we would note

9 in the chart and in the chronology whether the particular

10 document referenced was recorded or not because there is also

11 an issue as to whether certain transfers were recorded,

12 substitutions of trustees were record, and whether -- if they

13 weren't recorded, whether they're effective.

14 THE COURT: Okay. I think those are two salutary

15 ideas.

16 Now, seeing you stand up here -- and this is

17 unfortunately for Mr. Chvat not going to be the case. It seems

18 to me the ideal way to approach this -- and if you need more

19 time, tell me, because I will grant it to you -- is for you to

20 stipulate to what is filed in the Sacchi case by working and

21 meeting and conferring with Mr. Chen.

22 Rather than having competing efforts to send -- to

23 tell me what I think would not be otherwise disputable -- I

24 mean, what happened, happened. Whether it confers rights or

25 doesn't is a ruling that I will eventually have to make.


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1 So why don't you meet and confer with Mr. Chen. And

2 if you guys figure out a better way -- Mr. Chen is your

3 adversary, right?

4 MR. COLBY: No, Your Honor. It's the other attorney,

5 Chvat.

6 THE COURT: Oh, I got it all wrong.

7 So you are on the Guerrero case, Mr. Chen?

8 MR. CHEN: Yes, that's correct, Your Honor.

9 THE COURT: Then I got it wrong. So you meet with

10 Mr. Chvat.

11 And if you have a different approach, a better

12 diagram, or more than one, that will really illustrate what

13 happened here in this confusing case, you are welcome to do it.

14 This is not the final or best version. I came up

15 with this this morning after thinking about it last night after

16 going through all of these papers. So you are welcome to do a

17 better one.

18 How much time do you need?

19 MR. COLBY: You know what, I would ask my opposing

20 counsel, because I think that some of the information, he's

21 going to have access to and I won't, as far as where some of

22 these documents -- the path they took.

23 So I would suggest that he take the first crack at

24 the diagram, I take a look at it, and if I have any conflicting

25 information, I'll give it to him, otherwise -- like I said, I




11

1 think he is -- through his clients is going to have unique

2 access to some of the information that I won't have access to.

3 So I would ask him if he needed more time than Friday to get

4 that together.

5 THE COURT: Well, I am sure Mr. Chvat is wondering

6 whether you're just trying to put the whole burden on him.

7 (Laughter.)

8 THE COURT: So tell me what your view is.

9 MR. CHVAT: Should I (indicating) --

10 THE COURT: Yes.

11 MR. CHVAT: Thank you, Your Honor.

12 I don't have a problem with what Mr. Colby is saying.

13 I think that, obviously, my clients are going to have

14 access to some information that his clients aren't, especially

15 in this early stage of the litigation without having undertaken

16 any real discovery.

17 There's only one issue I'd like to clarify.

18 Definitely an extension of time. I don't know how long it's

19 going to take to get this information from my clients.

20 This is a loan that was originally -- it was serviced

21 by AHMSI, which is American Home Mortgage. It was a service

22 released to RCS, who obtained ownership in October of 2010, so

23 there's a lot of -- I might have to pull at different people to

24 get this information.

25 If the Court would be inclined to -- the Court had a




12

1 date of May 6th. Maybe another --

2 THE COURT: Yeah, that's unrealistic.

3 MR. CHVAT: Maybe another 14 days on top of that.

4 Maybe May 20th. I think that would be --

5 THE COURT: All right. Better than that, I like

6 things filed for management purposes something that's very

7 helpful to me and to my staff, so I set things according to

8 Mondays. Today is the 2nd, and if I gave you 21 days, that

9 would be the 23rd.

10 MR. CHVAT: That seems right. Thank you.

11 THE COURT: Okay. So you file either a stipulated

12 response to this order -- but you can file separate briefs on

13 the impact of Salazar. That you should do. I don't expect you

14 to reach a koombaya agreement on exactly what it means for this

15 case, but don't confine your analysis -- I really want -- I

16 want to come to grips with -- I get a million of these cases,

17 and I just don't think I have an informed understanding of

18 where the law is now and where it's heading, so consider this

19 to be a potential precedent-setting matter. And maybe if this

20 experiment, that I am grateful to you for participating in,

21 proves to be helpful, it will be a model for other judges

22 because this is a very vexing problem.

23 So it will be May 23rd.

24 Return the orders that were tentatively given to you.

25 A corrected order will go out with a slightly greater degree of


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1 explanation than the one I came up with hurriedly this morning,

2 but that will be what your task is between now and May 23rd.

3 MR. CHVAT: If I can just ask Your Honor for just a

4 bit of clarification again.

5 As far as the diagram, you had mentioned horizontal.

6 You'd like the change of ownership information. How --

7 THE COURT: Yeah, arrows and just showing so I can

8 see how the daisy chain worked.

9 MR. CHVAT: Okay.

10 THE COURT: If I just see some transfer or some

11 assignment or some purchase or some change in legal -- the

12 emergence of some new entity in this legal process, if it's all

13 set forth just in the same vertical chronology, I'm not going

14 to see -- it's going to be a flow chart as opposed to a simple

15 chronology.

16 MR. CHVAT: Okay.

17 THE COURT: So that's the difference between the two.

18 MR. CHVAT: Understood.

19 And as far as the briefing on Salazar, is there a

20 deadline date?

21 THE COURT: May 23rd.

22 MR. CHVAT: Same date. Understood. Thank you, Your

23 Honor.

24 THE COURT: But the injunction is not lifted.

25 MR. CHVAT: Understood.




14

1 MR. COLBY: I just had one other thing, Your Honor,

2 please. There's -- I believe there's a sale date that was

3 rescheduled for May 27th.

4 THE COURT: That's enjoined.

5 MR. COLBY: Okay. Thank you.

6 THE COURT: All right. Now, Mr. Chen -- go ahead.

7 You don't have another lawyer with whom you can approach this.

8 MR. CHEN: Yeah, I think --

9 THE COURT: You have the duty to do what I've said.

10 Do you need some modifications in your instructions?

11 MR. CHEN: No, I think we could get the chronology to

12 you by May 6th, however, I think for the briefing on Salazar,

13 we would like additional time on it and perhaps to May 23rd

14 also, Your Honor.

15 THE COURT: Why are you so confident you can get all

16 the information in the chronology and the flow chart by Friday?

17 MR. CHEN: Because we already have all the recorded

18 documents, Your Honor.

19 THE COURT: Well, if you can get it by Friday, fine,

20 but why do you need three weeks when you're not worried about

21 doing other things like the lawyers are in the Sacchi matter?

22 MR. CHEN: No, Your Honor. I'm concerned about --

23 THE COURT: Three weeks for Salazar.

24 MR. CHEN: -- Salazar, Your Honor, the briefing.

25 THE COURT: Why? Why do you need so much time?




15

1 MR. CHEN: Your Honor, it's just -- you said this

2 might set the precedent, so we want to make sure that we get it

3 right. Also, on top of that, you are asking us to research

4 emerging cases outside of California.

5 THE COURT: Okay. I will give you to the 23rd. I

6 don't want you to feel that you're really in a different

7 position. But don't do anything. You're now enjoined --

8 MR. CHEN: I understand, Your Honor.

9 THE COURT: -- from doing anything to take away this

10 home from this woman Guerrero. You understand that?

11 MR. CHEN: I understand that, Your Honor.

12 THE COURT: All right. Anything else?

13 MR. CHEN: Are you going to set, I guess, a continued

14 hearing date?

15 THE COURT: Yeah, we'll have a hearing on -- the

16 following Monday is Memorial Day, so it will have to be on June

17 6th.

18 MR. COLBY: Actually, Your Honor, if I could be

19 heard.

20 I want to make it clear I'm not making an appearance

21 for Ms. Guerrero, but oddly enough, she did approach me a few

22 weeks back to represent her in this case.

23 I had no idea this hearing was -- the Guerrero matter

24 was for today.

25 I'm not representing her. My firm is not


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1 representing her, but I was going to maybe suggest that I

2 confer with opposing counsel on that matter and possibly work

3 something out with Ms. Guerrero where I can represent her in

4 that case as well. We could --

5 THE COURT: That would be very welcome.

6 MR. COLBY: -- combine the efforts as to the graphs

7 and the Salazar case.

8 THE COURT: It would be very welcome, and I think Mr.

9 Chen would love that because it's not good for a lawyer to have

10 to deal with a pro se litigant. There are all kinds of

11 limitations on what he can accomplish and do, so if you entered

12 an appearance as Guerrero's counsel, given what's happened here

13 in court, it would be very welcome.

14 MR. COLBY: Thank you, Your Honor.

15 THE COURT: All right. Return those tentatives, and

16 let's call the next case, please.

17 (Proceedings concluded.)

18 --oOo--

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1

2

3 CERTIFICATE

4

5 I hereby certify that pursuant to Section 753,

6 Title 28, United States Code, the foregoing is a true and

7 correct transcript of the stenographically reported

8 proceedings held in the above-entitled matter and that the

9 transcript page format is in conformance with the

10 regulations of the Judicial Conference of the United States.

11

12 Date: MAY 17, 2011

13

14

15

16 _________________________________

17 Cindy L. Nirenberg, CSR No. 5059

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Definitely [1] 11/18degree [1] 12/25deny [1] 5/1DERON [2] 2/14 4/5designed [1] 8/14diagonal [1] 7/21diagram [8] 7/13 7/18 7/23 8/16 8/1710/12 10/24 13/5

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Even [1] 8/5events [2] 7/17 8/11eventually [1] 9/25exactly [1] 12/14example [1] 7/16

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11/14 11/19 11/24 13/6 14/16informed [1] 12/17initiate [1] 4/22injunction [2] 5/1 13/24injunctive [1] 5/11injury [1] 5/12instructions [1] 14/10interests [1] 5/12involved [1] 5/23irreparability [1] 5/12Irvine [1] 2/9is [40]issuance [1] 8/11issue [2] 9/11 11/17issues [2] 6/6 8/22it [25]

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obviously [1] 11/13October [1] 11/22oddly [1] 15/21Official [1] 1/23Oh [2] 9/2 10/6Okay [10] 3/23 4/1 4/3 4/7 9/14 12/1113/9 13/16 14/5 15/5

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that [58]that's [7] 5/16 6/4 10/8 12/2 12/6 13/1714/4

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Vversion [1] 10/14versus [5] 2/2 2/12 3/5 3/6 8/23



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was [9] 6/24 9/10 11/20 11/20 11/21

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ZZak [1] 2/18

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