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J. Edward Kerley (175695) Gene V. Halavanau (267280) HEREFORD KERLEY LLP 1999 Harrison Street, #1400 Oakland, California 94612 Telephone: (510) 379-5801 Facsimile: (510) 228-0350 Attorneys for Plaintiff LEON TAYLOR

SUPERIOR COURT OF THE STATE OF CALIFORNIA SONOMA COUNTY UNLIMITED CIVIL JURISDICTION LEON TAYLOR, an individual, Plaintiff, vs. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, CALIFORNIA RECONVEYANCE COMPANY, a California corporation, and DOES 1 through 20, Defendants. PLAINTIFFS OPPOSITION TO JPMORGAN CHASE BANKS DEMURRER TO THE COMPLAINT Date: November 29, 2011 Time: 8:30 a.m. Dept.: 18 Case No. 55CV250068

INTRODUCTION JPMorgans demurrer is a thinly disguised attempt to obtain a summary-judgmentstyle dismissal. It should be overruled because the allegations of the Complaint control and there are material facts in dispute making a demurrer or summary judgment inappropriate. One of the central points of the Complaint is at the time of the 2011 assignment of the trust deed from JPMorgan to Bank of America, JPMorgan had no interest in the note. JPMorgan did not address the point; its purported evidence in its Request for Judicial Notice does not address the point. Instead, it appears that JPMorgan has simply filed a boilerplate demurrer in the hopes of a quick dismissal with prejudice.

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FACTUAL BACKGROUND Mr. Taylor and his family reside at their home at 2530 Lawndale Road, in Kenwood. Mr. Taylor is facing the loss of his home through foreclosure initiated and advanced by JPMorgan. (Complaint 5). Mr. Taylor executed a note in favor of Washington Mutual Bank in January of 2007. Washington Mutual Bank promptly turned around and sold the loan on or before February 27, 2007, to a separate company, WaMu Asset Acceptance Corporation. (Complaint 7). JPMorgan is attempting to foreclose through non-judicial foreclosure on the basis of an assignment dated March 15, 2011, by JPMorgan to Bank of America. The assignment is ineffective because as of March 15, 2011, JPMorgan had no right, title or interest in the Taylor promissory note or the trust deed. (Complaint 16).

ARGUMENT I. There has been no proper assignment to Bank of America as trustee of the WaMu Mortgage Pass through Certificates Series 2007 -HY3 Trust permitting it to foreclose on the Property. JPMorgan attempted to assign the note and deed of trust to Bank of America as trustee for the WaMu Mortgage Pass Through Certificates Series 2007 -HY3 Trust (hereinafter the WaMu Trust) in March of 2011. The assignment was recorded once the note was in default and in order to establish a basis to move forward with a non-judicial foreclosure sale. But the problem is that JPMorgan had no interest in the note or the trust deed in March of 2011. JPMorgan's recording of the assignment is fraudulent. Extraneous evidence tends to support the allegations of the Complaint. For example under the terms of the WaMu Trust no assignment to the trustee of any notes or deeds of trust were contemplated after February 27, 2007, the closing date of the WaMu Trust.1 Presumably the Taylor note was sold to WaMu Asset Acceptance Corporation and constituted one of the 3,868 loans. There is no recorded assignment of sale of the loan

A relevant portion of the WaMu Trust prospectus, pages S-5 and S-13 is attached as Exhibit A to this brief.

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and trust deed to WaMu Asset Acceptance Corporation, and none of the parties have yet to produce one in discovery. Obviously, JPMorgan, as a successor to Washington Mutual Bank, cannot assign in 2010 or 2011, what it has no interest in as a result of the sale of the note prior to February 27, 2007. Nor would assignment of the loan and trust deed make any sense in 2010 or 2011, and to do so would destroy the tax status of the WaMu Trust which has made a REMIC election.2 The WaMu Trust has special tax status as a Real Estate Mortgage Investment Conduit (REMIC). REMIC is codified beginning at Internal Revenue Code 860D. Under subsection (a)(4), the WaMu Trust is not permitted to switch out assets at the close of the third month after the startup of the trust. Thus the assets cannot change and must consist only of qualified mortgages and other permitted investments once the REMIC election is made.3 Thus the WaMu Trust would not take an assignment of the Taylor notes and trust deeds four years after the trust was closed. JPMorgan in its demurrer does not address the Complaints allegations of the fraudulent and void assignment to Bank of America in March 2011. For example, JPMorgan does not explain why there was never an assignment from Washington Mutual Bank, the originator and servicer of the loan, to WaMu Asset Acceptance Corporation in 2007. It does not explain why there is no assignment from WaMu Asset Acceptance Corporation to Bank of America or Lasalle Bank National Association, which was subsequently acquired by Bank of America. These are the central allegations of the Complaint that show that the attempted foreclosure is wrongful and will be void, yet they have simply asserted that the purported assignment in 2011 by JPMorgan directly to Bank of America is valid because JP Morgan purchased Washington Mutual Bank and its assets.

2 3

Exhibit A, page S-13 of the Prospectus. Internal Revenue Code 860D(a)(4).

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Clearly, Washington Mutual Bank had no interest in the note or the trust deed after it sold the note to WaMu Asset Acceptance Corporation in 2007. Even if this were a valid request for summary judgment, JPMorgan presented no evidence that it acquired the assets of WaMu Asset Acceptance Corporation, or that that the Taylor loan was an asset of Washington Mutual Bank at the time of JP Morgans acquisition. So it is irrelevant whether the Court takes judicial notice of the JPMorgans purchase agreement or not, because the note was sold in 2007, a year before the acquisition.

II.

A requirement to tender does not apply to the Taylors because JPMorgan is not the beneficiary under the deed of trust and the purported assignment is fraudulent. The assertion that under California law Mr. Taylor is absolutely required to tender

the outstanding debt to stop a wrongful foreclosure is simply wrong. The tender rule applies only to setting aside a voidable sale for irregularities in the procedure of the trustees sale. The rule does not apply to an attempted wrongful foreclosure sale that is void to begin with. None of JPMorgans proffered cases support an allegation that tender is required when a plaintiff alleges that foreclosure sale is void, and not merely voidable for irregularities. The distinction between void and voidable has a great practical importance. According to the Blacks Law Dictionary something that is void if it has no legal effect, an absolute nullity, and legally unenforceable. Something that is voidable is valid until annulled. In Dimock v. Emerald Properties, LLC, the court stated that tender is not required when a trustee goes forwardwith a foreclosure sale without any legal authority to do so.4 In Dimock, the original trustee wassubstituted for a new trustee. But it was the originaltrustee who conducted the foreclosure sale. The court held that the foreclosure salewas void and a complete nullity with no force and effect.5 The court

Dimock v. Emerald Properties, LLC (2000) 81 Cal. App. 4th 868. Id. at 876.

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reasoned that because the trustee had no legal right to conduct the sale, plaintiff was not required to tender any of the amounts due under the note.6 JPMorgan surprisingly failed to discuss or distinguish for the Court the Dimock decision. But Dimock applies and permits a resolution without Mr. Taylor having to tender the full amount of the note. Finally, even if the trustee sale were not alleged to be void, tender is a matter of this Courts discretion under the Supreme Courts Humboldt Savings Bank decision. In that case the Supreme Court held that: Under the circumstances disclosed by this record, the defendant would be subjected to very evident injustice and hardship if her right to attack the sale were made dependent upon an offer by her to pay the whole debt.7 This Court should exercise its decision to not require tender because the alleged collateral of the home is not going to disappear. Meaning if Mr. Taylor is not successful in the suit, Bank of America will go ahead and foreclose on the Taylors home. Bank of America will under no circumstances lose the potential collateral, the Taylors home, to satisfy the alleged debt, and does not suffer any prejudice. While if tender were required, Mr. Taylor would have to come up with close to a million dollars for Bank of America, an impossible feat on short notice, and highly improbable with the cloud on title to the home created by JPMorgans actions.

CONCLUSION The gravamen of JPMorgans argument is that there can be no judicial action where it pursues a non-judicial foreclosure. This is shocking. JPMorgan is presently operating under a consent order, Consent Order, #AA-EC-11-15, with the United States of America Department of the Treasury, Comptroller of the Currency, for all manner of improper conduct in the foreclosure of homes throughout the country. (Complaint 11). An opportunity for judicial review is extremely important. Mr. Taylor should have an

6 7

Id. at 879. Humboldt Sav. Bank v. McCleverty (1911) 161 Cal. 285, 291.

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opportunity to halt the sale, and obtain the discovery that will show that at most Bank of America is an unsecured creditor, and that JPMorgan has no standing to assign interest in the trust deed or otherwise order a private sale of the Taylor home. Mr. Taylor and his family will suffer irreparable harm if his home is sold at foreclosure and they are evicted without the ability to first establish their rights in the property. As the Court is no doubt well familiar with, on a demurrer the Court is required to give a generous interpretation of the pleading in favor of stating a cause of action.8 JPMorgan is moving for summary-judgment-style dismissal and yet has failed to provide any of the key documents. For example a copy of the note with all endorsements or allonges to the note showing that Bank of America is property a holder in due course of the note. At this stage of the litigation, the Court should overrule the demurrer and give Plaintiff an opportunity to conduct discovery to obtain additional evidence relevant to the lack of proper endorsement and assignment as alleged in the Complaint. Finally, Plaintiff requests the opportunity to add WaMu Asset Acceptance Corporation and Bank of America as defendants to facilitate discovery and to have finality based on the outcome of this decision as both parties rights should be finally adjudicated as well.

Dated: November 14, 2011

HEREFORD KERLEY LLP

J. Edward Kerley Gene V. Halavanau Attorneys for Plaintiff Leon Taylor

Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660.

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Opposition to Demurrer

EXHIBIT A

EXHIBIT A

Prospectus Supplement to Prospectus Dated February 13, 2007

WaMu Mortgage Pass-Through Series 2007-HY3

WaMu Asset Acceptance Corp.
Depositor

Certificates, . .

Washington Mutual Bank

Sponsor and Servicer

$2,970,344,100
(Approximate)
Consider carefully the risk factors beginning on page S-15 in this prospectus supplement and page 5 in the accompanying prospectus. The certificates will represent interests only in the issuing entity which is WaMu Mortgage Pass-Through Certificates Series 2007-HY3 Trust and will not represent interests in or obligations of Washington Mutual Bank, WaMu Asset Acceptance Corp., Washington Mutual, Inc. or any of their affiliates. Neither these certificates nor the underlying mortgage loans are guaranteed by any agency or instrumentality of the United States. The WaMu Mortgage Pass-Through Certificates Series 2007-HY3 Trust will issue twenty classes of offered certificates and nine classes of privately placed certificates. Each class of offered certificates will be entitled to receive monthly distributions of interest, principal or both, beginning on March 26, 2007. The certificate interest rate for some classes of offered certificates will be variable. The table on page S-6 of this prospectus supplement contains a list of the classes of offered certificates, including the initial class principal balance, certificate interest rate, and special characteristics of each class. The primary asset of the Trust will be a pool of first lien single-family residential mortgage loans whose interest rates (after an initial fixed-rate period) adjust annually. The Trust will also contain other assets, which are described on page S-27 of this prospectus supplement. Offered Certificates Total principal amount (approximate) First payment date Interest and/or principal paid Last payment date $2,970,344,100 March 26, 2007 Monthly March 25, 2037

Credit enhancement for the Class I-AI, Class l-A2, Class 2-AI, Class 2-A2, Class L-B-l, Class L-B-2 and Class L-B-3 Certificates is being provided by three classes of privately offered certificates, which have an aggregate principal balance of approximately $13,266,516.Credit enhancement for the Class 3-Al, Class 3-A2, Class 3-A3, Class 3-A4, Class 3-B-l, Class 3-B-2 and Class 3-B-3 Certificates is being provided by three classes of privately offered certificates, which have an This prospectus supplement may aggregate principal balance of approximately $2,902,032. Credit enhancement for the be used to offer and sell the Class 4-A1 and Class 4-A2, Class 4-B-I, Class 4-B-2 and Class 4-B-3 Certificates is offered certificates only if being provided by three classes of privately offered certificates, which have an accompanied by the prospectus. aggregate principal balance of approximately $15,500,985. Additional credit enhancement for the offered senior certificates is being provided by the related classes of offered subordinate certificates. Losses otherwise allocable to some senior certificates will instead be allocated to other senior certificates. The underwriter listed below will offer the offered certificates at varying prices to be determined at"the time of sale. The proceeds to WaMu Asset Acceptance Corp. from the sale of the offered certificates will be approximately99.67% of the principal balance of the offered certificates plus accrued interest, before deducting expenses. The underwriter's commission will be the difference between the price it pays to WaMu Asset Acceptance Corp. for the offered certificates and the amount it receives from the sale of the offered certificates to the public. Neither the SEC nor any state securities commission has approved or disapproved of the offered certificates or determined that this prospectus supplement or the prospectus is accurate or complete. Any representation to the contrary is a criminal offense. Underwriter

WaMu Capital Corp.

February 23, 2007

SUMMARY INFORMATION The following summary highlights selected information from this prospectus supplement. It does not contain all of the information that you need to consider in making your investment decision. To understand the terms of the offered certificates, read carefully this entire prospectus supplement and the accompanying prospectus. This summary provides an overview of certain calculations, cash flows and other information to aid your understanding. This summary is qualified by the full description of these calculations, cash flows and other information in this prospectus supplement and the accompanying prospectus. TRANSACTION PARTICIPANTS Information About the Mortgage Pool

On February 27, 2007, which is the closing date, the mortgage loans that support the certificates will be sold by Washington Mutual Bank, the sponsor of the securitization transaction, to WaMu Asset Acceptance Corp., the depositor. On the closing date, the depositor will sell the mortgage loans and related assets to the WaMu Mortgage Pass-Through Certificates Series 2007-HY3 Trust. In exchange for the mortgage loans and related assets, the Trust will issue the certificates pursuant to the order of the . depositor. The mortgage loans will be serviced by Washington Mutual Bank, as servicer. Some servicing functions will be performed by Washington Mutual Mortgage Securities Corp., as administrative agent of the servicer. Some servicing functions will be outsourced to third party vendors. The trustee of the Trust will be LaSalle Bank National Association, and the Delaware trustee will be Christiana Bank & Trust Company. Washington Mutual Bank fsb will have possession of and will review the mortgage notes, mortgages and other legal documents related to the mortgage loans as custodian for the Trust. WHAT YOU OWN Your certificates represent interests only in the assets of the issuing entity. All payments to you will come only from the amounts received in connection with those assets. The Tmst owns a pool of mortgage loans and other assets, as described under "The Trust" in this prospectus supplement. There are no outstanding series or classes of securities that are backed by the assets of the issuing entity or otherwise have claims on the assets of the issuing entity, other than the certificates. The depositor docs not expect that any securities representing additional interests in or claims on the assets of the issuing entity will be issued in the future.

The mortgage pool consists of 3,868 mortgage loans with an aggregate principal balance as of Febmary 1, 2007 of approximately $3,002,013,634. All of the mortgage loans are secured by residential properties or shares of cooperative apartments and each is set to mature within 30 years of the date it was originated. The mortgage pool consists of the following four loan groups:
Approximate Principal Balance as of February 1, 2007 $ 633,917,086 $ 572,083,530 $ 386,896,032 $1,409,116,985 Maximum Years to Maturity From Origination Date 30 30 30 30

Loan Group Loan Loan Loan Loan Group Group Group Group 1 2 3 4

Number of Mortgage Loans

773
663 443 1,989

The mortgage loans provide for a fixed interest rate during an initial period of five years, in the case of loan group 1 and loan group 4, seven years, in the case of loan group 2, and ten years, in the case of loan group 3, from the date of origination of each mortgage loan. After their initial fixed-rate periods, the mortgage loans provide for annual adjustments to the interest rate. The interest rate on each mortgage loan will adjust to equal the sum of an index and a margin. Interest rate adjustments will be subject to limitations stated in the related mortgage note with respect to increases and decreases for any adjustment. In addition, the interest rate will be subject to an overall maximum and minimum interest rate. The index for approximately 0.1 % of the group 1 loans, none of the group 2 loans, none of the group 3 loans and approximately 23.8% of the group 4 loans (in each case, by aggregate principal balance as of February 1, 2007) will be the weekly average yield on United States Treasury Securities adjusted to a constant maturity of one year. The index for approximately 99.9% of the group. 1 loans, all of the group 2 loans, all of the group 3 loans

S-5

class principal balances have each been reduced to zero. After the principal balances of all of the Group 4-B Certificates have been reduced to zero, any loss with respect to a mortgage loan in loan group 4 will be allocated, first, to the Class 4-A2 Certificates until their class principal balance has been reduced to zero and second, to the Class 4-Al Certificates until their class principal balance has been reduced to zero. For a more detailed description of the allocation of realized losses among the certificates, see "Description of the Certificates-Subordination and Allocation of Losses" in this prospectus supplement. OPTIONAL TERMINATION When the aggregate principal balance of the mortgage loans in loan group 1 and loan group 2 has been reduced to less than 10% of that balance as of February 1, 2007, the servicer may purchase all of the mortgage loans in loan group 1 and loan group 2. See "Description of the CertificatesOptional Tennination" in this prospectus supplement. When the aggregate principal balance of the mortgage loans in loan group 3 has been reduced to less than 10% of that balance as of February 1, 2007, the servicer may purchase all of the mortgage loans in loan group 3. See "Description of the Certificates-Optional Termination" in this prospectus supplement. When the aggregate principal balance of the mortgage loans in loan group 4 has been reduced to less than 10% of that balance as of February 1, 2007, the servicer may purchase all of the mortgage loans in loan group 4. See "Description of the Certificates-Optional Termination" in this prospectus supplement. YIELD CONSIDERATIONS The yield to maturity on each class of certificates will depend upon, among other things: the price at which the certificates are purchased; the applicable annual certificate interest rate; the rate of prepayments (including liquidations) on the related mortgage loans; and whether an optional termination occurs. See "Yield and Prepayment Considerations" in this prospectus supplement.

BOOK-ENTRY REGISTRATION In general, the offered certificates, other than the Class R Certificates, will be available only in bookentry form through the facilities of The Depository Trust Company, Euroclear and Clearstream. See "Description of the Securities-Fonn of Securities" in the accompanying prospectus. DENOMINATIONS The offered certificates, other than the Class R Certificates, are offered in minimum denominations of $25,000 each and multiples of $1 in excess of $25,000. The Class R Certificates will have an initial class principal balance of $100 and will be offered in a single certificate that represents a 99.99% interest in its class. LEGAL INVESTMENT As of the date of their issuance, all of the offered certificates, other than the Class L-B-2, Class L-B-3, Class 3-B-2, Class 3-B-3, Class 4-B-2 and Class 4-B-3 Certificates, will be "mortgage related securities" for purposes of the Secondary Mortgage Market Enhancement Act of 1984. See "Certain Legal Investment Aspects" in this prospectus supplement for important infonnation concerning possible restrictions on ownership of the offered certificates by regulated institutions. You should consult your own legal advisors in determining whether and to what extent the offered certificates constitute legal investments for you. ERISA CONSIDERATIONS Subject to important considerations described under "ERISA Considerations" in this prospectus supplement and in the accompanying prospectus, the offered certificates, other than the Class R Certificates, will be eligible for purchase by persons investing assets of employee benefit plans or individual retirement accounts. See "ERISA Considerations" in this prospectus supplement and in the accompanying prospectus. FEDERAL INCOME TAX CONSEQUENCES For federal income tax purposes, the servicer will cause one or more REMIC elections to be made with respect to the Trust. The certificates, other than the Class R Certificates, will represent ownership of REMIC regular interests and will generally be treated as representing ownership of debt for federal

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