John Smith, Pro Per

Anne Smith, Pro Per

11791 Montecito Road
Los Alamitos, California 90720
714-612-4669

IN THE SUPERIOR COURT OF CALIFORNIA

ORANGE COUNTY CENTRAL JUSTICE CENTER
John Francisco Smith and
Anne Marie Smith

CASE NO.: 30-2016-00871234

Plaintiffs,

Assigned to Honorable: David R. Chaffee

vs.
PLAINTIFFS' REPLY AND OPPOSITION
TO DEFENDANT CHASE'S DEMURRER
TO COMPLAINT, AND REQUEST FOR
THIS COURT TO TAKE MANDATORY
JUDICIAL NOTICE OF COMPLAINT
AND ALL OF THE EXHIBITS FILED
INTO THIS CASE

JPMORGAN CHASE BANK N.A.,

MALAGA ASSET MANAGEMENT and all
persons of entities unknown, claiming any legal
or equitable right, title, estate, lien or interest in
the property described in this complaint adverse
to Plaintiffs' title, or any cloud upon Plaintiffs'
title thereto and DOES 1 through 25

Date: November 4, 2016

Time: 9:30 a.m.
Dept: C20

Defendants

Come now Plaintiffs, John Francisco Smith and Anne Marie Smith, and file their
Opposition to Defendants' Demurrer to Complaint to Quiet Title, in this court of record and
request this court take Mandatory Judicial Notice of the contents of the complaint and
exhibits filed by Plaintiffs proving that the Deed of Trust has been revoked without
objection or protest, proving that JPMorgan Chase Bank, (Chase) is in default, has
admitted to creating counterfeit securities, and is estopped from making the false claims it
presents in its demurrer.
1

I.

INTRODUCTION
Because Plaintiffs' complaint to quiet title is verified, containing unrebutted

affidavits and undisputed facts of record, including Chase's 2011 default with regard to
Plaintiffs' full payment and cure of all alleged default(s), (see complaint, paragraphs 23, 24,
and 25), Defendant's answer to Plaintiff's complaint must also be verified, and must rebut
each and every fact of record raised by Plaintiffs. However, Chase's demurrer is not
verified and therefore constitutes Chase's admission to all said facts of record in Plaintiffs'
complaint. As Mr. Sorich states in his demurrer, In reviewing the sufficiency of a
complaint against a demurrer, the court is to treat the demurrer as admitting all material
facts properly pled, but not contentions, deductions or conclusions of fact of law. See Blank
v. Kirwan, 39 Cal 3d 311, 318 (1985). The material facts submitted in Plaintiffs' complaint
are not mere contentions, deductions or conclusions but rather are facts established by
administrative process (notice, fault, default) witnessed by third-party witness Paul Charles
Bird, Sr., notary public, to which Chase has defaulted, admitting that it is not the holder, not
the beneficiary, not authorized to appoint Quality Loan Service as trustee, not authorized to
foreclose. These admissions by Chase disprove and rebut each and every claim made by its
attorney, John M. Sorich.
Effectively, the demurrer submitted by defendant Chase does not contest the verified,
proven facts submitted by plaintiffs in their complaint and exhibits, but, rather, admits the
truth of said facts. And, although, counsel for defendant, Mr. Sorich, alleges the matter to
be res judicata, he is demonstrably incorrect: the facts defendant Chase has admitted to
include exhibits 3, 4, 5 and 6, which are the administrative processes administered by thirdparty witness, Paul Charles Bird, Sr., Notary Public. Chase defaulted in said processes
admitting that Chase is not the beneficiary or holder of the now revoked deed of trust
(see Exhibit 1, Revocation of DOT recorded on 3/21/2016, Instrument No.2016000115784),
and note; admitting that it has received full payment by plaintiffs curing all purported
defaults; that Plaintiffs have a prior and superior claim to said note, (see attached Exhibit
10, UCC filing No.14-7436129390 and fixture filing). Pursuant to the terms of the
administrative processes, Chase is estopped from arguing charges/facts it has admitted. As

for the facts admitted, they are not mere allegations or contentions, but rather facts which
Chase had notice and opportunity to challenge in said administrative processes, but did not
challenge; facts which Chase has freely admitted. Are these facts sufficient to state a cause
of action against Chase pursuant to Cal. Code of Civ. Proc. 430.10(e)? Yes, they are.
II.

FACTUAL BACKGROUND
The record of BK Case No. 8:12-bk-22571-MW shows beyond any doubt that the

order granting Chase's motion to lift stay (MLS), is utterly void and without effect, is
pending appeal, and must be vacated as a matter of law. Said record clearly establishes
Movant, Chase, supplied no evidence to prove-up standing prior to bringing its MLS, and
therefore, was without standing. A party must have standing to file suit at its inception
and may not remedy this defect by subsequently obtaining standing, (my emphasis).
Venture Holdings & Acquisitions Grp.,LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773,
776 (Fla. 4th DCA 2011). In its ruling, the court did exactly that: it attempted to
remedy Chase's clear lack of standing by accepting the putative note months after
Chase submitted its MLS without any proof of standing. Movant's lack of standing left
the bankruptcy court without jurisdiction to hear said motion, and rendered its order
granting relief from stay utterly void and without effect. It is the duty of the Appellate
Court (BAP No. CC-16-1116), and this court, to review the record of Case No. 8:12-bk22571-MW, and to determine from the record that Chase failed to provide the bankruptcy
court proof of standing prior to said court hearing Movant's Motion for Relief from Stay.
Thus, the putative order granting MLS is not merely voidable, but, rather, utterly void
ab initio. Moreover, it is a matter of record that the court knew that Chase had failed to
establish its standing prior to the court hearing its motion, because John Smith complained
of Chase's lack of standing and objected to the court proceeding. Said complaint, objection
and John Smith's superior lien-claim were ignored by the court which exhibited extreme
bias against John Smith, and in favor of Chase.
Defendant claims that the entire complaint fails based on res judicata or collateral
estoppel grounds, and fails to state a cause of action against Chase pursuant to Cal. Code of
Civ. Proc. 430.10(e). And, in his Memorandum, counsel for defendant, John M. Sorich,
3

claims that the subject property was sold to Chase at a non-judicial foreclosure sale on
September 12, 2016. Mr. Sorich claims that Now that the property has been sold, the
claims for quiet title and for injunctive relief are moot. These statements are false: there
were no bidders at the auction. The property was not for sale, (see below) and there was
no actual sale, but, rather a void credit bid from Chase. The credit bid was made after
Plaintiffs gave notice to Chase, and Quality Loan Service Corp., via notary public, Paul
Charles Bird's due presentment, that Chase is not the holder, was/is without authority to
foreclose, and had created a counterfeit security. Chase defaulted and admitted to all
charges in said notice as witnessed by third party witness Paul Charles Bird Sr., Notary
Public, (see exhibits 4, 5, 6). Quality, the alleged trustee with a fiduciary duty to respond to
Trustors, also failed to dispute the charges, defaulted, and illegally proceeded with wrongful
foreclosure; thereby admitting to being fully complicit in Chase's fraud.
In Focht v. Wells Fargo Bank, 2002 DC10 (Florida 9/13), Judge Silberman addressed
whether a foreclosure sale rendered an appeal by Focht after foreclosure sale moot: I
concur in this decision because existing precedent requires me to do so. Presumably, our
mandate requires the dismissal of this foreclosure action, which in turn will undo the
foreclosure sale. Ms. Focht will regain possession of her property and apparently continue
her free use of the duplex Our certified question of great public importance is dispositive
of this appeal and worthy of consideration by the Supreme Court. In Citibank v McCray,
2013 NY Slip Op 51931(U) [41 Misc 3d 1229(A)], Judge Gonzales stated, Significantly,
there is no proof that Citibank held both the Mortgages and the Notes when it commenced
this action. After careful consideration and review, the defendant's motion is granted for
good cause shown. Citibank has not demonstrated right to the debt in the absence of a chain
of custody and proof that the Mortgage and Notes were lawfully assigned to and held by
Citibank prior to the commencement of this action. This Court accordingly determines that
the plaintiff lacks standing to foreclose. The underlying action is dismissed, (my
emphasis). Like Citibank in the above case, Chase failed to bring forward any
assignment or the original unaltered note prior to bringing its motion to lift stay.
The Notice of Trustee's Sale (see attached Exhibit 17) provided by Quality Loan

Service Corp., gave the following Notice to All Bidders: If you are considering bidding on
this property lien, you should understand that there are risks involved in bidding at a trustee
auction. You will be bidding on a lien, not on the property itself. Placing the highest bid
at a trustee auction does not automatically entitle you to free and clear ownership of the
property. You should also be aware that the lien being auctioned off may be a junior lien. If
you are the highest bidder at the auction, you are or may be responsible for paying off all
liens senior to the lien being auctioned off, before you can receive clear title to the
property, (my emphasis). Plaintiffs gave notice to Chase and to this court that John Smith
is the Secured Party in possession of such senior lien. Said notice and lien are
uncontested by Chase. Thus, the claims that the property was sold to Chase, and that
plaintiffs' complaint is moot are utterly false claims. Plaintiffs' action is not moot, and
does state facts and provides uncontroverted evidence sufficient to constitute a cause of
action pursuant to Cal. Code of Civ. Proc. 430.10(e). The BAP Appeals court must and
will vacate the void order granting Defendant's MLS, as the record shows Movant entered
nothing to prove standing prior to MLS, and the bankruptcy court was without jurisdiction
to hear said MLS. (See Citibank v McCray supra).
Chase and putative Trustee Quality Loan Service Corp., had notice and evidence
from Plaintiff, prior to the auction and alleged sale, of Chase's default, and admission that it
was without authority, (see Exhibit 18) and could not legally proceed with foreclosure, (as
witnessed by third party witness, Notary Public, Paul Charles Bird, Sr.). But, despite said
notice and evidence, alleged trustee did proceed with a void sale, thereby tainting said
alleged sale with fraud. There is no question of the general doctrine that fraud vitiates the
most solemn contracts, documents, and even judgments. United States v. Throckmorton,
98U.S. 61 (25 L.Ed. 93).
Quality Loan Service Corporation not properly appointed as Substitute Trustee
Further, Chase is not named on the Note or Deed of Trust, and by default has
admitted that it is not the assignee, not the creditor, not the holder or the
beneficiary of said Note and DOT. It follows, therefore, that Chase was without authority
to execute the 3/13/2009 Substitution of Trustee, appointing Quality Loan Service Corp.
5

as trustee of the subject deed of trust. This lack of authority is underscored by the fact that
said Substitution of Trustee was executed by robo-signer Rick Wilken as attorney in
fact. A sworn affidavit dated 1/10/2013, executed by John O'Brien, Register of Deeds for
Essex Massachusetts, (see Exhibit 14), states I am aware that RICK WILKEN is an alleged
robo or surrogate signer, which said affidavit defines as the person on a legal document
processing assembly line whose only task is to sign previously prepared documents
affecting title to real property in a robotic-like fashion without reading the documents or
verifying the facts contained therein. Additionally, robo-signers regularly fail to establish or
simply do not have authority to execute these documents on behalf of the legal title holder
or principal on whose behalf they purport to act.
Thus, the alleged September 12, 2016 foreclosure sale is void and without effect,
as Quality Loan Service Corp., was not a properly appointed substitute trustee, and was
without authority to conduct a foreclosure sale. Further, Chase failed to contest the
Plaintiffs' revocation of the DOT for good cause prior to said sale, and no actual sale of
the lien or the subject property took place. Additionally, Chase's credit bid is void, as
it had already admitted that it is not the assignee, not the creditor, not the
holder or the beneficiary, and was therefore unqualified to make a credit bid,
rendering said bid and sale utterly void. Prior to said void foreclosure sale, Chase
and Quality Loan Service Corp., (alleged trustee), had notice and opportunity to respond to
Plaintiffs' Lawful Notice and Demand for Cancellation of Foreclosure Sale and Auction
Due to Counterfeit Securities and Other Violations of Federal Law, and Statement of
Facts, (see Exhibit 18). Chase failed to respond as required pursuant to SCOTUS ruling in
U.S. v. Tweel, (see below) and thereby admitted by default that Chase is not the holder, or
holder in due course, of the putative negotiable instrument required to foreclose; is absent
any assignment or chain of title, is without authority to foreclose, and was, by its own
admission, engaged in a fraudulent process to illegally obtain Plaintiffs' property in
violation of the rights of Plaintiffs. Silence can only be equated with fraud where there is a
legal or moral duty to speak or where an inquiry left unanswered would be intentionally
misleading. U.S. v. Tweel, 550 F. 2d. 297. Chase's silence in the face of evidence of its

default and admission to all charges can only be equated with fraud.
Defendant's claim that Plaintiffs failed to cure putative default are untrue.
Having failed to acknowledge Plaintiff's deposited note/instrument is an obligation
of the bank pursuant to 12 U.S.C. 1813, Chase may not claim that Plaintiffs failed to cure
their defaults. Further, on or about June 15, 2011, defendant, JPMorgan Chase Bank, N.A.,
received via Registered Mail, RE 683 173 688 US, a Notice of Tender, (see attached,
Exhibit 3), of registered instrument (UCC filing number 117266961160) in the amount of
$2,818,000.00, sent by Paul Charles Bird, Sr., Notary Public and third party witness, to set
off Chase claim under Account No.3010622854. After notice and opportunity to rebut,
or to declare a defect, this fact has remained undisputed by Chase and its attorneys.
Moreover, Chase has failed to acknowledge or to return the instrument and pursuant to
UCC 3-603, by refusing Plaintiff's tender, the putative debt owed to Chase is fully
discharged. It is not equitable for Chase to keep $2,818,000.00 and take Plaintiffs' property.
Uncontested Revocation of the DOT pursuant to TILA
In addition, the Deed of Trust (DOT) dated August 15, 2006, had, pursuant to
TILA already been revoked, canceled and rescinded by Trustors, John and Anne Smith, on
March 17, 2016, and delivered to defendant, Chase, on March 28, 2016, (see Exhibit 1,
Revocation of DOT recorded on 3/21/2016, Instrument No.2016000115784 and Exhibit 2,
the revoked, canceled and rescinded DOT, unexecuted by WAMU, attached). Mr. Sorich
contends that said revocation was not approved by Chase. Such approval was not
required after Chase accepted and failed to return $2,818,000.00 from Plaintiffs. In any
case, Chase failed to object or respond to said revocation, and thereby acquiesced to
same. Chase is therefore estopped from arguing this matter, as it waived its right to do so
(estoppel by silence). Since Washington Mutual Bank, FB (WAMU) never executed the
DOT and is now out of business, it cannot object to TILA rescission by Grantors, as
Grantors/plaintiffs have the power to revoke their signatures from a document unexecuted
by any other, and, in which Grantors were misled and became the victims of WAMU's
fraudulent conversion (no receipt for deposited instrument). This rescission has no
expiration. It can only be removed by (a) a proper pleading, and (b) proof that said
7

rescission should be canceled and removed from the chain of title. There is no lawsuit
required to make a TILA rescission of a clearly void unexecuted contract effective. There is
no tender required. There are no conditions whatsoever, (see Supreme Court case, Jesinoski
v. Countrywide (SCOTUS).)
III.

ARGUMENT
John M. Sorich's citation of the bankruptcy court's April 4, 2016 final order as res

judicata requires that the court record support such an order, specifically that the record
show Chase had, prior to filing its motion, entered a complete chain of title showing an
assignment of a negotiable instrument from WAMU, or from FDIC, as well as the original
unaltered note. Such a showing is impossible, as the subject Adjustable Rate Note contains
numerous conditions (undertakings by obligor) disqualifying it as a negotiable instrument
pursuant to UCC Article 3-104(a) (see Quiet Title complaint page 4 paragraph 13). The
record of the case clearly shows that Chase failed to timely file any proof of standing
whatsoever, rendering the court's order, and the subsequent alleged sale utterly void.
Further, the adversary action brought by John Smith in the same court, as cited in Mr.
Sorich's demurrer, was dismissed by Judge Wallace, for lack of jurisdiction. This,
however, did not deter Judge Wallace from finding on the merits in favor of Chase, thereby
clearly demonstrating his incompetence and bias against John Smith.
Defendant, Chase, and alleged trustee, Quality Loan Service Corp., had, pursuant
to U.S. v. Tweel, an undisputed fiduciary duty to respond to Plaintiffs' Lawful Notice and
Demand for Cancellation of Foreclosure Sale and Auction Due to Counterfeit Securities
and Other Violations of Federal Law, and Statement of Facts. However, the undisputed
affidavit of third-party witness, Paul Charles Bird, Sr., conclusively proves that they failed
to respond, and proceeded with a wrongful foreclosure. The property was not sold as
claimed by Mr. Sorich, as the property was not up for sale, (as admitted in the Notice of
Trustee's Sale). Said property was in fact not sold to Chase, as there was no cash sale and
no good faith purchaser. Chase was without standing to make a credit bid, as credit bids
may only be made by bonafide creditors, a status which Chase failed to establish when it
brought its motion to lift stay without any proof of standing. Even if, arguendo, there had

been a bonafide bidder, the sale would still be void as the court order granting the MLS,
was entered without jurisdiction, and is utterly void and without effect.
IV.

CONCLUSION
For the foregoing reasons, Defendant's claims in its demurrer are unverified and

baseless; the putative foreclosure sale is utterly void, the trustee's deed is unperfected and
void, and, Plaintiffs' uncontested lien remains unpaid by Defendants. The record established
in bankruptcy case 8:12-bk-22550-MW clearly shows the court heard the MLS without
ANY proof of standing by Chase PRIOR to MLS as required. Absent standing, the court
was without jurisdiction to hear Chase's MLS. The record established in said case requires
the BAP Court of Appeals to vacate the void order granting MLS as a matter of law.
Plaintiffs have proven via uncontested rescission of DOT, unrebutted affidavit of
facts, and prior defaults by Chase attested to by third-party witness and notary public, that
Plaintiffs have Good Title to the real property which is superior to Chase's baseless claims.
The record of admissions by Defendants clearly shows Plaintiffs have made a prima facie
case. Defendants were therefore required by law to prove a superior right or title, but have
failed to do so. Defendants' demurrer fails to address Chases refusal of Plaintiff's tender,
fail to rebut the rescission of DOT, fails to rebut Plaintiff's affidavits, fails to contest Chase's
defaults attested to by third-party witness, and fails to prove superior right or perfected title.
Wherefore, demurrer admits to all facts in Plaintiffs' complaint, requiring this court to quiet
title in favor of Plaintiffs.
Dated: October 10, 2016

By _______________________________
John Francisco Smith, pro per

CERTIFICATE OF SERVICE
I, Ricardo Smith, certify that on the 10th day of October 2016, I mailed a true and correct
copy of the above and foregoing Opposition to Defendant's Demurrer AND REQUEST
FOR THIS COURT TO TAKE MANDATORY JUDICIAL NOTICE OF COMPLAINT
AND ALL OF THE EXHIBITS FILED INTO THIS CASE to:
JPMorgan Chase Bank
c/o John M. Sorich, Esq.
Parker Ibrahim & Berg, LLC
695 Town Center Drive, 16th Floor
Costa Mesa, California 92626

By _____________________________
Richard Smith